Agreement with Andrew ReidAndrew Reid Contract
March 19, 2003
Page I of 28
AGREEMENT
between
CITY OF MIAMI BEACH, FLORIDA
and
Andrew Reid
for
COMMISSIONED ARTWORK
Andrew Reid Contract
March 19, 2003
Page 2 of 28
AGREEMENT
between
CITY OF MIAMI BEACH, FLORIDA
and
Andrew Reid
for
COMMISSIONED ARTWORK
This is an Agreement, made and entered into this 19th day of March, 2003, by and
between: CITY OF MIAMI BEACH, a political subdivision of the state of Florida, hereinafter
referred to as "CITY";
AND
NAME, his/her successors and assigns, hereinafter referred to as "ARTIST."
NOW THEREFORE, in consideration of the mutual terms, conditions, promises,
covenants and payments hereinafter set forth, CITY and ARTIST 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 - This document; other terms and conditions included in the exhibits
and documents are expressly incorporated by reference.
1.2 Artist - The individual or business entity selected to perform services pursuant to
this Agreement.
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1.3
City- The City of Miami Beach, Florida. Where certain approvals and submissions
are required from the City in this Agreement, those shall be required by the Mayor
and City Commission of the City of Miami Beach, Florida.
1.4
City Attorney - The chief legal counsel for CITY who directs and supervises the
Office of the City Attorney.
1.5 City Manager - Shall mean the Chief Administrative Officer of the City.
1.6
Consultant - Architect or Engineer who has contracted with the City or who is an
employee of City, to provide professional services for the Project.
1.7
Contract Administrator - The designee of the City Manager, whose primary
responsibilities are to coordinate and communicate with ARTIST and to manage
and supervise execution and completion of the Scope of Services and the terms
and conditions of this Agreement as set forth herein. In the administration of this
Agreement, as contrasted with matters of policy, all parties may rely on the
instructions or determinations made by the Contract Administrator; provided,
however, that such instructions and determinations do not change the Scope of
Services.
1.8
General Contractor and/or Contractors - The person, firm, or corporation with
whom the City has contracted and who is responsible for construction services at
the location where the Work is to be located that may be either finished or ongoing
during the term of this Agreement.
1.9
Notice to Proceed - A written Notice to Proceed with the Work and the Services
issued by the Contract Administrator.
1.10 Project- Name of Project
1.11 Sub Consultant - A person, firm or corporation having a direct contract with Artist.
1.12 Work - The work of art to be created under this Agreement.
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ARTICLE 2
SCOPE OF SERVICES (Services)
2.1
ARTIST shall perform all work identified in this Agreement and Exhibit A Scope of
Services (Services), including design, fabrication, transportation, and installation of
the Work. The parties agree that the Scope of Services is a description of
ARTIST'S obligations and responsibilities and is deemed to include preliminary
considerations and prerequisites, and any and all labor, materials, equipment, and
tasks as necessary and required to design, build, and complete the Work, as
contemplated by this Agreement.
2.2
ARTIST acknowledges and agrees that while the Contract Administrator has not
been designated, the authority to make changes that would increase, decrease, or
otherwise modify the Scope of Services to be provided under this Agreement, such
increases, decreases, or other modifications may be made by mutual agreement of
the CITY, if over $25,000, or the City Manager, if under $25,000, and Artist, as
memorialized and approved in a written amendment to this Agreement.
2.3 ARTIST shall provide monthly progress reports and/or deliverables in a manner
acceptable to the Contract Administrator.
2.4 Omitted.
2.5
Upon completion of the Work, ARTIST shall provide Contract Administrator a
detailed written schedule and instructions for the routine care, maintenance, and
preservation specific to the Work, as set forth in Exhibit C, Cataloguing Form,
attached and made a part hereof.
2.6
ARTIST shall be responsible for the quality and timely completion of the Work. The
ARTIST shall be responsible for designing the Work so that it can be constructed
without exceeding the approved budget. The ARTIST, shall, without additional
compensation, and without limitation, correct or revise any errors, omissions, or
other deficiencies in the Work to the reasonable satisfaction of the Contract
Administrator.
2.7
ARTIST agrees that an essential element of this Agreement is the personal skill and
creativity of the ARTIST. The ARTIST shall not assign any creative or artistic
portions of the Work, here within not specifically denoted in Exhibit A, Scope of
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Services, to another party without the written consent of the Mayor and City
Commission.
2.8
ARTIST agrees that all work performed pursuant to the Scope of Services and
under this Agreement, and that the Work itself, shall comply with any and all
applicable laws, ordinances, codes and regulations. ARTIST shall acquire any
approvals and permits required by State and local law for the Work.
2.9
The ARTIST shall not make any public information release in connection with
Services performed pursuant to this Agreement without the prior written approval of
the Contract Administrator.
2.10
If any part of the ARTIST'S Work depends upon proper execution or results of work
of the CITY or a third party responsible to the CITY, the ARTIST shall, prior to
proceeding with the Work, promptly report, in writing, to the Contract Administrator
any apparent discrepancies or other defects in such other work which renders the
Work unsuitable for proper execution and results by the ARTIST. If not promptly
reported in writing, as required herein, the Artist shall be deemed to have waived his
right(s) to contest or request additional compensation, time, or any other
accommodation required to address such discrepancy and/or defect, and Artist shall
have been deemed to have assumed the risk.
The ARTIST shall take all reasonable steps to coordinate the Services and the
Work, with the work of the CITY or of a third party on the Project. ARTIST agrees to
accept responsibility for any delays to the work of the CITY or of a third party on the
Project if ARTIST fails to take reasonable steps to coordinate his services and the
Work with said parties.
2.11 While ARTIST is involved in the execution, fabrication, transportation, inspection
and/or installation of the Work, the following provisions shall also apply:
The Contract Administrator shall notify ARTIST of the City and any other
contractor(s) operation, construction and maintenance schedules in and
around the area where the ARTIST'S Work is to be performed. The ARTIST
shall perform his Services and prosecute the Work in a manner and time so
as not to cause interference with any of the operations of the CITY or third
party contractor(s). In the event of conflict between the schedules of the
contractor, CITY, and ARTIST, said conflict shall be resolved bythe CITY, in
its sole judgment and discretion.
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When working on CITY property, the ARTIST shall perform such clean up as
may be reasonably requested by CITY, in its sole judgment and discretion.
Upon completion of the Services and/or the Work, whichever comes first, the
ARTIST shall remove his equipment, excess materials, and waste promptly
and as requested by CITY.
2.12
The ARTIST shall bear any transportation and storage costs resulting from the
completion of the Services and of the Work prior to the time provided in the
schedule for installation.
2.13
Title to the Work shall pass to the CITY upon written final acceptance of the
complete installed Work by the CITY. All risk of destruction, or damage to, the
Work or any part thereof from any cause whatsoever shall be borne by the ARTIST
until written final acceptance by the CITY. The ARTIST shall, at the ARTIST'S sole
expense, rebuild, repair, restore, and make good all such damage to any portion of
the Work until Title to the Work has passed to the CITY, except any portions
previously accepted by the CITY as provided above. However, the ARTIST shall
not be responsible for repairing any damage caused by job-site contractors or
subcontractors not under the ARTIST'S contractual control or supervision.
ARTICLE 3
TERM AND TIME OF PERFORMANCE
3.1
The term of this Agreement shall begin on the last date of execution by the parties
and shall end thirty (30) days before the opening ceremony or public access to the
site, or 480 days from the last date of execution, whichever is earlier.
3.2
All duties, obligations, and responsibilities of the ARTIST required by this
Agreement, including first and foremost, the completion of the Work, as accepted by
the City, shall be completed within 100 days from the date of Notice to Proceed, and
no later than thirty (30) days before the opening ceremony or public access to the
site, whichever is earlier. Time shall be deemed to be of the essence in performing
the duties, obligations and responsibilities required by this Agreement.
3.3
The CITY may grant a reasonable extension of time to the ARTIST in the event that
there is a delay on the part of the CITY in performing its obligations or in completing
the underlying capital project (the Project), or if conditions beyond the ARTIST'S
control render timely performance of the ARTIST'S services impossible. The
determination of whether a delay is beyond the ARTIST'S control or not shall be
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3.4
made solely by the Contract Administrator and ARTIST agrees to abide by the
Contract Administrator's decision.
Failure to fulfill contractual obligations due to conditions beyond either party's
reasonable control and/or force majeure, will not be considered a breach of
contract, provided that such obligations shall be suspended only for the duration of
such condition.
4.1
4.2
4.2.1
ARTICLE 4
COMPENSATION
CITY agrees to pay ARTIST, in the manner specified in Section 4.2 and Exhibit B,
Compensation and Schedule of Payments, the total amount of $33,800 for work
satisfactorily performed and completed pursuant to this Agreement, and as
accepted by the City, through its Contract Administrator. This amount shall be
accepted by ARTIST as full compensation for the Services and the Work. It is
acknowledged and agreed by ARTIST that this amount is the maximum amount
payable and constitutes a limitation upon CITY'S obligation to compensate ARTIST
for its services related to this Agreement. This maximum amount, however, does
not constitute a limitation, of any sort, upon ARTIST'S obligation to perform all items
of work required by or which can be reasonably inferred from the Scope of Services
or to diligently prosecute and satisfactorily complete the Work in a manner
acceptable to the CITY. No amount shall be paid to ARTIST to reimburse its
expenses.
METHOD OF BILLING AND PAYMENT
ARTIST may submit invoices for compensation no more often than on a monthly
basis, but only after the portion of the Services for which the invoices are submitted
have been satisfactorily completed. An original invoice plus one copy are due within
fifteen (15) days of the end of the month except the final invoice, which must be
received no later than sixty (60) days after this Agreement expires. Invoices shall
designate the nature of the services performed and/or the expenses incurred. A
written progress report shall accompany each invoice, describing the portion of
Services and/or of the Work completed during that pay period.
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4.2.2
Subject to 4.2.1 above, the CITY shall pay ARTIST within thirty (30) calendar days
of receipt of ARTIST'S proper statement. To be deemed proper, all invoices must
comply with the requirements set forth in this Agreement and must be submitted on
the form and pursuant to instructions prescribed by Contract Administrator.
Payment may be withheld for failure of ARTIST to comply with a term, condition, or
requirement of this Agreement; for Services not satisfactorily performed; and/or in
the event the City does not accept the Work.
4.2.3
CITY may include an allowance reserve not to exceed ten (10%) percent of the
(name of project) construction budget to provide for unforeseen costs, including but
not limited to, construction delays or site changes.
4.2.4
Notwithstanding any provision of this Agreement to the contrary, CITY may withhold,
in whole or in part, payment to the extent necessary to protect itself from loss on
account of inadequate or defective work that has not been remedied or resolved in
a manner satisfactory to Contract Administrator.
Payment shall be made to ARTIST at:
Andrew Reid
4495 Adams Avenue
Miami Beach, FL 33140
5.1
5.2
ARTICLE 5
CHANGES IN SCOPE OF SERVICES
Any change to the Scope of Services or to the Work must be accomplished by a
written amendment, executed by the parties in accordance with Section 13.16.
The ARTIST shall, whenever required during the term of this Agreement, present to
Contract Administrator in writing, drawing(s) or other appropriate media for further
review and approval of any significant changes in the scope, design, color, size,
material, utility and support requirements, texture, or location of the site or of the
Work. A significant change is any which affects the installation, scheduling, site
preparation or maintenance of the Work, or the concept of the Work, as
represented in the original approved design.
ARTICLE 6
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WARRANTIES/STANDARDS
6.1
The ARTIST warrants that: (a) the design or Work being commissioned is the
original product of the ARTIST'S own creative efforts; (b) unless otherwise
stipulated, the Work is original, that it is an edition of one; and (c)that ARTIST shall
not sell or reproduce the Work, or allow others to do so without the prior written
consent of CITY. This warranty shall survive the term of this Agreement.
6.2
The ARTIST shall guarantee the Work to be free from faults of material and
workmanship for a period of two (2) years after installation or final acceptance by
CITY, whichever occurs later.
6.3
The ARTIST shall deliver the Work to the CITY free and clear of any liens from any
source whatsoever. These guarantees shall apply to work(s)that are entirely that of
the ARTIST or persons responsible to the ARTIST, and shall not apply to materials
or workmanship of projects in which the Work of ARTIST is integrated or combined,
or to materials purchased, acquired, or installed by a person or entity not
responsible to the ARTIST. This warranty shall survive the term of this Agreement.
6.4
The ARTIST shall faithfully perform the Work in accordance with standards of care,
skill, training, diligence and judgment provided by highly competent professionals
who perform work of a similar nature. This warranty shall survive the term of this
Agreement.
ARTICLE 7
OBLIGATIONS OF CITY
7.1
CITY shall assist ARTIST by placing at ARTIST'S disposal all public information it
has available pertaining to the Project without cost to ARTIST.
7.2 CITY shall:
arrange for access so that ARTIST may enter upon public property as
required for ARTIST to perform the Services under this Agreement;
give prompt written notice to ARTIST whenever the CITY observes or
otherwise becomes aware of any development that affects the scope or
timing of ARTIST'S services;
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Co
arrange public meetings and consultations as needed for the ARTIST to fulfill
the ARTIST'S obligations under this Agreement;
d. review materials submitted pursuant to Exhibit A in a timely manner;
eo
prepare and install, at its expense, a plaque or sign identifying the ARTIST,
the title of the Work and year of completion, and shall reasonably maintain
such notice in good repair; and
reasonably assure that the Work is properly maintained and protected, taking
into account the recommendations of the ARTIST, as stated in the
Cataloging Form provided by the ARTIST.
ARTICLE 8
ARTIST'S RIGHTS
8.1
The ARTIST understands and expressly agrees that, as to the ARTIST'S rights in
the Work, the provisions of this Article shall control over the provisions of 17 U.S.C.
106A(a), and shall constitute a waiver by the ARTIST of any and all rights in the
Work set out in or otherwise granted by 17 U.S.C. 106A(a), Visual Artists Rights Act
of 1990, or by any other operation of law.
8.2
All other rights in and to the Work, including but not limited to, all rights in the nature
of Adroit Moral relating to any continuing interest the ARTIST may have in the
maintenance or modification of the Work, are expressly waived by the ARTIST and
insofar as such rights are transferable, are assigned to the CITY.
8.3
Notwithstanding this waiver, CITY, through the City Manager or his designee, shall
make a diligent good faith effort to notify ARTIST of any proposed action which will
remove, destroy, or otherwise modify the Work by providing notice to the ARTIST by
registered mail at the most recent address provided to and on file with the City of
Miami Beach Office of Arts, Culture & Entertainment, the Contract Administrator.
8.4
In the event that ARTIST fails, within ninety (90) days of receipt of such notice, to
either remove the Work, pay for its removal, or participate in the reworking or
preserving of the Work, CITY shall have the right to proceed with the removal or
other modification of the Work. In the event that CITY makes a diligent, good faith
attempt without success to notify the ARTIST of its intended action, CITY shall have
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8.5
9.1
9.2
9.3
10.1
the right to proceed with alteration of the Work by reason of repair and maintenance
or removal.
The ARTIST shall be given the right of first refusal to perform repairs and
restorations and shall be paid a reasonable fee for such services, provided that the
ARTIST and CITY shall agree in writing upon the fee before the commencement of
such services and execute a two-party agreement memorializing same.
ARTICLE 9
COPYRIGHTS
ARTIST shall retain all copyright in and to the Work created under this Agreement,
provided that the ARTIST grants to CITY an irrevocable license to graphically depict
the Work in any non-commercial manner or media whatsoever to promote the CITY
or the CITY'S cultural programs, or for whatever other public purposes the CITY, in
its discretion, deems necessary.
ARTIST agrees and further warrants to the CITY that all Services performed under
this Agreement, and the Work, shall comply with all applicable patent, trademark
and copyright laws, rules, regulations and codes. The ARTIST further agrees that
the Work will not utilize any protected patent, trademark or copyright unless ARTIST
has obtained proper permission and all releases and other necessary documents.
Such depictions shall in all cases be accompanied by proper attribution to ARTIST,
including name, title of work, materials and dimensions.
If the ARTIST uses any protected material, process or procedure, the ARTIST shall
disclose such patent, trademark or copyright in the construction drawings and
technical specifications.
ARTICLE 10
INDEMNIFICATION
ARTIST shall at all times indemnify, hold harmless and, at the City Attorney's
option, defend or pay for an attorney selected by City Attorney to defend CITY, its
officers, agents, servants, and employees against any and all claims, losses,
liabilities, and expenditures of any kind, including attorney fees, court costs, and
expenses, caused by negligent act or omission of ARTIST, its employees, agents,
servants, or officers, or accruing, resulting from, or related to the subject matter of
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this Agreement including, without limitation, any and all claims, demands, or causes
of action of any nature whatsoever resulting from injuries or damages sustained by
any person or property. The provisions of this section shall survive the expiration or
earlier termination of this Agreement. To the extent considered necessary by
Contract Administrator and City Attorney, any sums due ARTIST under this
Agreement may be retained by CITY until all of CITY'S claims for indemnification
pursuant to this Agreement have been settled or otherwise resolved; and any
amount withheld shall not be subject to payment of interest by CITY.
ARTICLE 11
INSURANCE
11.1
ARTIST shall at all times during the term of this Agreement maintain in force those
insurance policies as designated in the attached Exhibit D Certificates of Insurance,
and will comply with those requirements as stated therein. Certificates of insurance
shall be furnished to and approved by CITY before commencement of any Services.
Such certification of insurance will provide CITY with thirty (30) days prior written
notice of any cancellation or non-renewal.
ARTICLE 12
TERMINATION
12.1
In the event that ARTIST or the CITY fails to perform or observe any of the
covenants, terms, or provisions under this Agreement and such failure continues
thirty (30) days after written notice therefore from the other party hereto, such non-
defaulting party may immediately or at any time thereafter, without further demand
or notice, terminate this Agreement without prejudiced as to any remedies which
may be available to it for breach of contract.
12.2
Termination of this Agreement for cause may include, but not be limited to, failure to
suitably perform the Services and/or the Work, failure to continuously perform the
Services and/or the Work in a manner calculated to meet or accomplish the
objectives of CITY, as set forth in this Agreement, or multiple breach of the
provisions of this Agreement notwithstanding whether any such breach was
previously waived or cured.
12.3 Notice of termination shall be provided in accordance with the NOTICE section of
this Agreement.
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12.4
12.5
The CITY, in addition to the rights and options to terminate this Agreement for
cause, retains the right to terminate this Agreement, at its sole option, at any time,
for convenience, without cause and without penalty, when, in its sole discretion it
deems such termination is in the best interest of the CITY, upon notice to ARTIST,
in writing, fourteen (14) days prior to termination. ARTIST shall be compensated for
all Services satisfactorily performed up to the time of receipt of said written
termination notice, and/or the assembly and submittal to the CITY of documents for
the Services performed, and the CITY shall have no further liability for
compensation, expenses or fees to ARTIST. In the event this Agreement is
terminated for convenience, upon being notified of CITY'S election to terminate,
ARTIST shall refrain from performing further services or incurring additional
expenses under the terms of this Agreement. ARTIST acknowledges and agrees
that ten dollars ($10.00) of the compensation to be paid by CITY, the adequacy of
which is hereby acknowledged by ARTIST, is given as specific consideration to
ARTIST for CITY'S right to terminate this Agreement for convenience.
The death or permanent incapacity of the ARTIST shall automatically terminate this
Agreement. Neither the ARTIST nor the ARTIST'S estate shall have any further
right to perform hereunder. The CITY shall pay the ARTIST'S estate or the ARTIST
the compensation payable for any Services satisfactorily rendered prior to such
termination not heretofore paid reduced by the amount of additional costs that shall
be incurred by the CITY by reason of such termination.
ARTICLE 13
MISCELLANEOUS
13.1 AUDIT RIGHT AND RETENTION OF RECORDS
CITY shall have the right to audit the books, records, and accounts of ARTIST that
are related to this 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, at reasonable times for examination
and audit by CITY, through its Finance Department, all financial records, supporting
documents, statistical records, and any other documents pertinent to this
Agreement for the required retention period of the Florida Public Records Act
(Chapter 119, Fla. Stat.), if applicable, or, if the Florida Public Records Act is not
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applicable, for a minimum period of three (3) years after termination of this
Agreement. 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. If the Florida Public Records Act is determined by CITY to be applicable to
ARTIST'S records, ARTIST shall comply with all requirements thereof; however, no
confidentiality or non-disclosure requirement of either federal or state law shall be
violated by ARTIST. Any incomplete or incorrect entry in such books, records, and
accounts shall be a basis for CITY'S disallowance and recovery of any payment
upon such entry.
13.2 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. In
addition, ARTIST shall take affirmative steps to ensure nondiscrimination in
employment against disabled persons. Such actions shall include, but not be
limited to, the following: employment, upgrading, demotion, transfer, recruitment or
recruitment advertising, layoff, termination, rates of pay, other forms of
compensation, terms and conditions of employment, training (including
apprenticeship), and accessibility.
ARTIST'S decisions regarding the delivery of services 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.
ARTIST shall not engage in or commit any discriminatory practice in violation of the
Miami Beach Human Rights Ordinance performing any Services pursuant to this
Agreement.
13.3 PUBLIC ENTITY CRIMES ACT
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ARTIST represents that the execution of this Agreement will not violate the Public
Entity Crimes Act (Section 287.133, Florida Statutes), 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.
13.4 INDEPENDENT CONTRACTOR
ARTIST is an independent contractor underthis Agreement. In providing Services
under this Agreement, 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.
13.5 THIRD PARTY BENEFICIARIES
13.6
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.
NOTICES
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Whenever either party desires to give notice to the other, such notice must be in
writing, sent by certified United States Mail, postage prepaid, return receipt
requested, or by hand-delivery with a request for a written receipt of
acknowledgment of delivery, addressed to the party for whom it is intended at the
place last specified. The place for giving notice shall remain the same as set forth
herein until changed in writing in the manner provided in this section. For the
present, the parties designate the following:
FOR CITY:
Tim Hemstreet, Director
Capital Improvement Projects Office
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FI_ 33139
FOR ARTIST:
Andrew Reid
4495 Adams Avenue
Miami Beach, FL 33140
13.7 ASSIGNMENT AND PERFORMANCE
Neither this Agreement nor any interest herein shall be assigned, transferred, or
encumbered by either party. In addition, ARTIST shall not subcontract any portion
of the work required by this Agreement without the prior written consent of the
Mayor and City Commission.
ARTIST represents that all persons delivering the 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,
obligations, and services set forth in the Scope of Services and to provide and
perform such services to CITY'S satisfaction for the agreed compensation.
ARTIST shall perform its duties, obligations, and services under this Agreement in a
skillful and respectable manner. The quality of ARTIST'S performance and all
interim and final product(s) provided to or on behalf of CITY shall be comparable to
the best local and national standards.
13.8 .CONFLICTS
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Neither ARTIST nor its employees 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 officers or employees 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.
In the event ARTIST is permitted to utilize subcontractors to perform any services
required by this Agreement, ARTIST agrees to prohibit such subcontractors, by
written contract, from having any conflicts within the meaning of this section.
13.9 CONTINGENCY FEE
13.10
ARTIST warrants that it has not employed or retained any company or person, other
than a bona fide employee 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 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, Board 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.
MATERIALITY AND WAIVER OF BREACH
CITY and ARTIST agree that each requirement, duty, and obligation set forth herein
is substantial and important to the formation of this Agreement and, therefore, is a
material term hereof.
CITY'S failure to enforce any provision of this Agreement shall not be deemed a
waiver of such' provision or modification of this Agreement. A waiver of any breach
of a provision of this Agreement shall not be deemed a waiver of any subsequent
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Andrew Reid Contract
March 19, 2003
Page 18 of 28
13.11
breach and shall not be construed to be a modification of the terms of this
Agreement.
COMPLIANCE WITH LAWS
ARTIST shall comply with all Federal, State, and local laws, codes, ordinances,
rules, and regulations in performing its duties, responsibilities, and obligations
related to this Agreement.
13.12
13.13
13.14
13,15
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 or ARTIST elects to terminate this Agreement. The election
to terminate this Agreement based upon this provision shall be made within seven
(7) days after the finding by the court becomes final.
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.
PRIORITY OF PROVISIONS
If there is a conflict or inconsistency between any term, statement, requirement, or
provision of any exhibit attached hereto, any document or events referred to herein,
or any document incorporated into this Agreement by reference and a term,
statement, requirement, or provision of this Agreement, the term, statement,
requirement, or provision contained in Articles 1 through 13 of this Agreement shall
prevail and be given effect.
APPLICABLE LAW AND VENUE
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Andrew Reid Contract
March 19, 2003
Page 19 of 28
13.16
13.17
13.18
This Agreement shall be interpreted and construed in accordance with and
governed by the laws of the State of Florida. Venue for litigation concerning this
Agreement shall be in Miami Dade County, Florida.
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 executed by the City Commission,
if over $25,000, or the City Manager, if less than $25,000, and ARTIST.
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 Section 13.16 above.
MULTIPLE ORIGINALS
This Agreement may be fully executed in three (3) copies by all parties, each of
which, bearing original signatures, shall have the force and effect of an original
document.
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Andrew Reid Contract
March 19, 2003
Page 20 of 28
IN WITNESS WHEREOF, the parties have made and executed this Agreement on
the respective dates under each signature: City of Miami Beach, Florida, signing by and
through its City Manager, authorized to execute same by the City Commission, and
ARTIST, duly authorized to execute same.
ATTEST:
City Clerk
WITNESSES:
ARTIST:
(artist)
~_~-- day of~L'~, 2003
Approved as to Insurance
Requirements by
RISK MANAGEMENT DIVISION
APPROVED A,~ TO
FORM & LANGUAGE
& FOR EXECUTION
' d;ity',~omey{~~ Date
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Andrew Reid Contract
March 19, 2003
Page 21 of 28
EXHIBIT A
SCOPE OFSERVICES
PURPOSE: ARTIST will design, fabricate and install artwork(s) for the Victory Garden.
DESCRIPTION:
Design: Poster and Text Panels
Using the heroic style that reflects the era four "posters" will capture the military in action
billeted on Miami Beach during the war years. Using a simple color palate and graphic
style, soldiers will be depicted marching in formation past South Beach's art deco buildings,
in training exercises on the beach, and doing calisthenics on the golf course. Three text
panels will combine images and text to explain the purpose of the Victory Garden, illustrate
the four branches of the military as well as the role of the U.S. Army Air Corps on Miami
Beach during the war years. The panels will each measure approximately 20" x 30".
There will be descriptive text on the panels.
Design: Fence
The fence is an integral part of the Victory garden and will be fabricated in either aluminum
by local artisan in the Miami area. Simple graphic symbols make the point here -- the word
victory is spelled out in type of the era. Symbols that evoke patriotism like stars and stripes
as well as symbols that allude directly to Miami Beach including palm fronds, sunshine, the
ocean and the hint of an Art Deco building are all part of the fence design.
Materials & Installation
The panels will be fabricated either from either glazed tile or baked enamel on metal for
ultimate outdoors durability. The fence will be fabricated from aluminum or wrought iron
and designed so that the panels will become an integrated part of the fence. The ARTIST
will over see the fabrication of fence and personally fabricate panels with assistance of a
tile artist. Installation will not take more than ten calendar days, depending on weather and
access to site. Graphic Renderings are attached as Exhibit A1
LOCATION OF FACILITY: 226 Collins Avenue, Miami Beach, Florida.
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Andrew Reid Contract
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Page 22 of 28
ADMINISTRATIVE COORDINATION: The CONTRACT ADMINISTRATOR may
designate a public art project manager. The ARTIST shall maintain regular communication
with the public art project manager via phone, fax, letter or e-mail.
DESIGN COLLABORATION: During the design of the artwork(s), the ARTIST shall
collaborate and coordinate with the Contract Administrator or his/her designated public art
project coordinator, Consultant, General Contractor, or any other professional or individual
designated by the City. The designs of the artworks shall be coordinated with the facility
design process in the following areas: aesthetics, public presentations, construction
documents, cost estimates and facility project schedules. Should the design of the artwork
require specialized professional services, the ARTIST may hire an appropriate sub-
consultant, however, the City retains the right to reject the choice of sub-consultant. Upon
approval of the artwork design, the ARTIST shall provide all necessary information on a
timely basis such that relevant components of the artwork design can be incorporated into
the final construction documents where appropriate.
CONSTRUCTION AND INSTALLATION COORDINATION: During the construction of the
facility and the installation of the artwork, the ARTIST shall collaborate and coordinate with
the Contract Administrator or his/her designated 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 artworks with the construction schedule and
install the artwork in compliance 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.
DELIVERABLES: the ARTIST shall provide the following deliverables:
I-A Research.
1. The ARTIST shall provide documentation of background research involving
site specific environmental and cultural elements, site documentation, and
future users of the facility.
The research phase includes two, two-day, site visits for meetings, an initial
orientation visit, a coordination meeting with the design team, and
community representatives and partner agency presentation meeting(s).
I-B Conceptual Desi.qn. The ARTIST shall develop a conceptual design proposal and shall
secure its approval by the Miami Beach Art in Public Places Professional Advisory
Committee for the project titled "(title)," as follows:
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Andrew Reid Contract
March 19, 2003
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The ARTIST shall submit drafts of the conceptual design proposal to Art in
Public Places project manager a minimum of one month prior to review by
the Professional Advisory Committee or as otherwise acceptable to the
Contract Administrator. The design proposal may be reviewed by the Miami
Beach environmental specialist prior to review by the Professional Advisory
Committee.
ARTIST shall provide conceptual design drawings on illustration boards
and/or models and color slides of the same. Ten (10) bound color copies of
design drawings and/or model photographs, concept statements, schematic
fabrication and installation budget with future operational and conservation
costs, schematic project schedule, and a description the integration of the
artwork with the facility design and construction.
The ARTIST shall personally present the conceptual design proposal to the
Professional Advisory Committee for the project titled "(title)."
This phase of work includes a site visit for presentation to the Professional
Advisory Committee and coordination with the design team.
I-C Design Development. The ARTIST shall complete the design development of the
approved artwork conceptual design and shall secure its approval from the
CONTRACT ADMINISTRATOR. Approval and notice to proceed on fabrication
shall occur after an architectural coordination review and submittal of all artwork
design development deliverables. Based on the requirements of the approved
artwork conceptual design, the CONTRACT ADMINISTRATOR can waive the
submittal of any unnecessary design development deliverables or postpone the
submittal to the fabrication and installation phase.
The ARTIST shall submit final design drawings for fabrication, artist proofs,
material samples, artwork and adwork support specifications for inclusion in
facility construction documents, verified cost estimate, sub-contractor list,
building permits, and a fabrication and installation schedule.
If the verified cost exceeds the budget, the artist is obligated to redesign the
artwork to fit within the established budget inclusive of alt payments to the
ARTIST.
3. This phase includes a site visit for coordination and presentation purposes.
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Andrew Reid Contract
March 19, 2003
Page 24 of 28
I-DFabrication and Installation.
artwork(s) and artwork
development drawings.
The ARTIST shall fabricate, deliver and install all
support components as per the approved design
I-EFinal Conservation Documents. The ARTIST shall submit all photographic
documentation and completed cataloguing forms. If the ARTIST utilizes computer
technology in the fabrication of the artwork, the ARTIST will submit electronic copies
of any computer files that will support on-going operations or future repairs and
conservation of the artwork.
COMPLETION AND INSPECTION: Upon completion and installation of all designed and
fabricated components, the ARTIST shall be responsible for obtaining final approval from
the City Manager.
PHOTOGRAPHIC DOCUMENTATION: Professional photo-documentation suitable for
publication shall include images of all major aspects of the entire project. The artist-
supplied photo-documentation shall be reproducible, at no cost to the City, for any and all
non-commercial uses by the City.
COMMUNITY INVOLVEMENT and EDUCATIONAL OUTREACH: In the development of
the artwork design, the ARTIST shall research the relevant concerns and interests of the
partner agency, future users of the facility and surrounding community. The ARTIST shall
participate in at least one community meeting and two meetings, as determined by the
Contract Administrator.
TIMELINE FOR COMPLETION: ARTIST shall be aware of and comply with design and
construction timeline and shall ensure that all artwork components are completed and
installed according to the established schedule '(see 3.2).
PERMITS: It shall be the ARTIST'S responsibility, where applicable, to obtain all
necessary permits as required in cooperation with the Architect and General Contractor,
and provide proof of same to the Contact Administrator prior to fabrication.
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Andrew Reid Contract
March 19, 2003
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EXHIBIT B
COMPENSATION AND SCHEDULE OF PAYMENTS
ARTIST will be paid the specified installment, upon submitting invoice and documentation
substantiating satisfactory completion of each phase of work as described below. ARTIST
will be paid the total sum of $33,800, for work that shall include all costs associated with
design development and fabrication of artwork(s), including but not limited to travel and
accommodation, taxes and fees if necessary, materials, labor by sub-consultants and
subcontractors, delivery and installation.
Each invoice shall include a brief written progress reportwith a narrative discussion of all
activities in progress during the report period, digital photo documentation where
appropriate, based upon the stated Scope of Services and payment description. Four
milestones will be used to determine payments as follows:
Milestone # 1: Not to exceed $16,900 upon execution of Agreement and interaction with
the CONTRACT ADMINISTRATOR, Architect, and community representatives; site visit
and documented background research relevant to the Project.
Milestone #2: Not to exceed $11,900 for material acquisition for fence and panels.
Milestone #3: Not to exceed $5,000 upon substantial completion of all activities specified
in the contract and outlined in Exhibit A - Scope of Services, submittal and acceptance by
the CONTRACT ADMINISTRATOR of documentation for conservation and documentation
that all sub-consultants and subcontractors have been paid.
Milestone #4--(Contingency Reserve): Not to exceed $5,000 upon completion of all
activities specified in the contract and outlined in Exhibit A - Scope of Services and
approval of the artwork by the Administration and City Manager.
CONTINGENCY RESERVE: ARTIST has agreed to fully perform the Scope of Services set
forth in Article 2 for the total compensation set forth in Section 4.1 above. However,
unforeseen costs, including but not limited to construction delays or site changes which are
beyond the control of and are not the fault of ARTIST may adversely affect ARTIST'S
costs. Therefore, CITY has set aside a contingency reserve amount of Five Thousand
Dollars ($5,000.00) that may, in the sole discretion of CITY, be paid to ARTIST in whole or
in part. Any additional compensation paid to ARTIST from the contingency reserve shall
be pursuant to written document in accordance with Section 13.16 except that the
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Andrew Reid Contract
March 19, 2003
Page 26 of 28
document may be signed by the Contract Administrator and the ARTIST. For purposes of
this Section, unforeseen costs shall not include expenses that the Contract Administrator
reasonably determines should have been contemplated by ARTIST when developing the
Project budget, including the original design and related artwork budget.
End of Exhibit B
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Andrew Reid Contract
March 19, 2003
Page 27 of 28
EXHIBIT C
THIS INFORMATION WILL BE COMPLETED DURING MILESTONE #2
Catalog #
CITY OF MIAMI BEACH ART IN PUBLIC PLACES
CATALOGING FORM
Artist Information
A. Name: Andrew Reid plus (SS#)
B. Date of Birth: 12/28/60
C. Place of Birth: Rotorua, New Zealand
D. Address: 4495 Adams Avenue, Miami Beach, FL 33140
E. Contact Phones: 305-673-4786/305-531-7338/305-772-5360
F. One paragraph biography of artist:
I1.
Work of Art
A. Title: Victory Garden
B. Medium: TBD
C. Dimensions in inches or centimeters:
TBD
II1.
Installation
A. Installation executed by ARTIST.
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Andrew Reid Contract
March 19, 2003
Page 28 of 28
IV.
B. Installation method (attached)
C. Date of Installation (attached)
External Factors
A. Describe physical positioning of the artwork:
(See attached)
B. Describe existing environmental factors that may affect the condition of the
artwork:
(define)
C. If the work is site-specific, describe the relationship of the work to its site:
(define)
Maintenance
(attach schedule of maintenance for specific items: light bulb, electronics etc).
To be provided by ARTIST upon completion of project per article 2.5.
Date
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-28-
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CERTIFICATE OF LIABILITY INSURANCE