Kevin Arrow Agreement/Artist Aqreement between
City of Miami Beach, Florida and Kevin Arrow, Artist
For Commissioned Artwork
This is an Agreement, made and entered into by and between: ClTY OF MIAMI BEACH, FLORIDA, a
political subdivision of the state of Florida, hereinafter referred to as"C1TY," and KEV~N ARROW, hereinafter
referred to as "ART[ST."
WHEREAS, CI-FY, with the support and cooperation of Miami Beach Art in Public Places, plans to
install a visual work of art at the North Beach Bandshell Park, hereafter referred to as the "Site"; and
and
WHEREAS, pursuant to this Agreement, ART[ST will create a certain unique and original work of art;
WHEREAS, both parties wish to be represented by the Work.
NOW THEREFORE, IN CONSIDERATION of the mutual terms, conditions, promises, covenants and
payments hereinafter set forth, C1TY and ART[ST agree as follows:
ART[CLE 1
DEFINI-I-[ONS 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, and other terms and conditions which are included in the exhibits and
documents that are expressly incorporated by reference.
Artist. The individual or business entity selected to perform services pursuant to this Agreement.
1.3 City. The City of Miami Beach, Florida. Unless otherwise provided in the Agreement, 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 I~lanager. Shall mean the Chief Administrative Officer of the City.
1.5 Contract Administrator. The designee of the City Manager, whose primary responsibilities are to
coordinate and communicate with AR'I'IST 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.
1.6 City Attorney. The chief legal counsel for C1TY who directs and supervises the Office of the City
Attorney.
1.7 Notice to Proceed. A written Notice to Proceed for the Project issued by the Contract
Administrator.
1.8 Project. That certain unique and original work of art to be situated in the North Beach Bandshell
Park and to be known as the "Beat/es fifosaic Mandala';
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1.9 Work. Any work(s) required by Artist under this Agreement to successfully complete the Project.
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
ARTICLE 2
SCOPE OF SERVICES
AR'fIST shall perform all Work identified in this Agreement and Exhibit A for the design, permitting,
fabrication, transportation, and installation of the Project.
ART[ST acknowledges and agrees that the Contract Administrator has no authority to make changes
that would increase, decrease, or otherwise modify the Scope of Services to be provided under this
Agreement.
AR'I-[ST shall provide monthly progress reports and/or deliverables in a manner acceptable to the
Contract Administrator.
Upon installation of the Project, the ART[ST shall furnish the Contract Administrator with professional
photographic documentation showing the completed Work. Photographs shall include the following:
1. Two (2) identical sets of twelve 35mm color slides illustrating various aspects of the artwork
within the site.
2. Two 4x5 color transparencies.
3. Four 8x10 black and white photographs.
Slides and photographs shall be of acceptable professional quality as determined by the Contract
Administrator.
In addition to the photographic documentation referenced above, AR'I-~ST shall also provide Contract
Administrator with any and all sketches, drawings, construction documents (if applicable), and as-
built plans (if applicable) showing the completed Work.
Upon completion of the Project, AR-rIST shall provide Contract Administrator with a detailed written
schedule and instructions for the routine care, maintenance, and preservation specific to the Project,
as set forth in Exhibit C, Cataloguing Form, attached and made a part hereof.
ART[ST shall be responsible for the quality and timely completion of the Project. The ART[ST shall be
responsible for designing the artwork so that it can be constructed without exceeding the approved
overall budget.
While ART[ST agrees that an essential element of this Agreement is the personal skill and creativity
of the ART[ST and that he is responsible for the quality of the Project, the ART[ST may subcontract
and/or assign portions of the Work to another party subject to the prior written consent of the City.
If so transferred, ART[ST will still be held responsible for all provisions of the Work. ART[ST further
warrants that proper credit and/or compensation shall be granted to satisfy the interest of any third
party whose creative or artistic work and/or intellectual property were used.
ART[ST agrees that all Work shall comply with all applicable Federal, State, Miami-Dade County, and
City of Miami Beach laws, ordinances, codes and regulations. ART[ST shall be solely responsible for
obtaining any required approvals and permits for the Project, although ART[ST shall not be required
to pay fees charged by reviewing agencies for such approvals and permits.
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2.9 The ART[ST shall not make any public information release in connection with the Project and/or the
Work performed pursuant to this Agreement without the prior written permission of the Contract
Administrator.
2.10 The ART[ST shall take all necessary steps to coordinate the Work with any ongoing work of the C1TY,
or any third party under the direction and control of the City, on or near the Site.
In the event the services of the ART[ST are combined or otherwise coordinated with services by the
City or a third party responsible to the City (and not within the control of the ART[ST), the ARTIST
shall not be responsible for such third party services. If any part of the Work depends upon proper
execution or results of work of the C1TY, or a third party responsible to the CI-FY and not under
ARTIST's control, the ART[ST shall, prior to proceeding with the Work, promptly report in writing to
the Contract Administrator any apparent discrepancies, defects, or delays in such other work which
renders the Work unsuitable for timely and proper execution and results by the ART[ST.
2.11 While ARTiST is solely responsible for the execution, fabrication, transportation, inspection and/or
installation of the Project, the following provisions shall apply:
a. The Contract Administrator shall notify AR'fIST of the C'~'Y's, or any other contractor's under
the direction and control of the C1TY, construction schedules in and around the area where the
Work is to be performed or installed, if they are known by the CI-FY. The ARTIST shall perform
the Work in a manner and time so as not to cause interference with any of the operations of
the C1TY or such third party contractor, l~n the event of conflict between the schedules of a
third party contractor, CITY, and AR'fIST, the conflict will be resolved by the Contract
Administrator, and the Contract Administrator's decision and resolution as to same shall be
binding upon AR-I'~ST.
b. ART[ST shall be solely responsible for conducting any and all inspections of the Site for
purposes of ascertaining the condition of same and for the proper execution of the Work, and
completion and installation of the Project. To the extent known or to the extent that same is in
C1TY's possession, C1TY shall make available to ART[ST any background materials and
information on matters affecting the Site.
c. When working on the Site, ART[ST shall perform such periodic clean up as may be reasonably
requested by the Contract Administrator. Upon completion, ARTiST shall remove his
equipment, excess materials, and waste promptly from the Site, as directed by Contract
Administrator.
2.12 AR'fIST shall bear any transportation and storage costs resulting from the construction, delivery and
installation of the Project.
2.13 Title to the Project shall pass to the C1TY following the Contract Administrator's inspection of the
Work and, if the Work is approved, upon Contractor's issuance of written final acceptance of the
complete installed Project. In furtherance of the foregoing, it is understood that any risk of loss or
damage to the Work and/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 complete installed Project, all
documents related to the conception, proposal, fabrication, and installation of the Project, including
"as built" documents, shall be turned over to the Contract Administrator and become the property of
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CITY. CiTY shall be free to exhibit and/or reproduce these documents as a record of ARTIST's
conception of the Work.
3.1
3.2
3.3
3.4
ARTICLE 3
TERM and TIME OF PERFORMANCE
The term of this Agreement shall begin on the date it is fully executed by both parties. Thereafter,
ARTIST shall diligently prosecute the Work in accordance with the Project Schedule set forth in
Exhibit A-l.
Time shall be deemed to be of the essence in performing the duties, obligations and responsibilities
required by this Agreement.
The CITY, through the Contract Administrator, 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 City capital project resulting in a delay of the Site being made available to
ARTIST for proceeding with the Work, or if conditions beyond the ARTIST'S control render timely
performance of the ARTIS-FS services impossible or unexpectedly burdensome. All requests for
extensions of time must be submitted in writing to the Contract Administrator by the ARTIST as soon
as the delay or conditions become known and their impact is evaluated, and shall not be effective
unless approved in writing by the Contract Administrator.
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 force majeure 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 force majeures 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.
4.1
4.2
4.3
ARTICLE 4
COMPENSATION
C~-fY agrees to pay ARTIST, in the manner specified in Section 4.4 and Exhibit B, "Compensation and
Schedule of Payments'; the total amount of Fifty-five Thousand Dollars ($55,000.00) for Work
actually performed, completed and accepted pursuant to this Agreement, which amount shall be the
sum total accepted by ART[ST as full compensation for the Project. No amount shall be paid to
ARTIST for reimbursable expenses.
At its sole discretion, C~-I'Y may include a contingency, not to exceed ten (10) percent of the Project
budget, to provide for unforeseen costs, including but not limited to, construction delays or site
changes. This amount, in whole or in part, shall not be considered part of ARTIST'S compensation
unless otherwise agreed to in writing by both parties, pursuant to the terms herein.
ARTIST may submit invoices for compensation no more often than on a monthly basis, but only after
the Work for which the invoices are submitted has been completed. An original invoice plus one copy
is 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 completion of all Work by ARTIST. Invoices shall
designate the nature of the services performed and/or the expenses incurred. A written progress
report shall accompany each invoice, describing the Work completed during that period.
4.4
4.5
4.6
C1TY shall pay ART[ST for Work satisfactorily performed and accepted by the Contract Administrator,
within thirty (30) calendar days of receipt of AR'I'IS~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.
Notwithstanding any provision of this Agreement to the contrary, C1TY may, at the sole discretion of
the Contract Administrator, withhold, in whole or in part, a portion of any or all payment 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, and has not been remedied
or resolved in a manner satisfactory to Contract Administrator.
Payment shall be made to ARTIST at:
Kevin Arrow
1315 Cleveland Road
Miami Beach, Florida 33141
5.1
5.2
ARTZCLE 5
CHANGES ]~N SCOPE OF SERV]ICES
Any change to the Scope of Services must be accomplished by a written amendment, executed by
the parties in accordance with Section 12.16.
The AR'FIST shall, whenever required during the term of this Agreement, present to Contract
Administrator, in writing, drawing or other appropriate media, for further review and approval, any
significant changes in the scope, design, color, size, material, utility and support requirements,
texture, or location of the Site or of the Project. A significant change is any change that affects the
size, quality, installation, scheduling, Site preparation or maintenance of the Project, or the concept
of the Project as represented in the original approved design.
6.1
6.2
6.3
ARTICLE 6
AR'I~ST'S WARRANT[ES
The ART[ST warrants that (a) the Project being commissioned is the original product of the ART[ST's
own creative efforts; and (b) unless otherwise stipulated, the Project is original, or in other words, an
edition of one (1).
The ARTiST warrants that reasonable maintenance of the Project will not require any extraordinary
procedures; and that ARTIST shall deliver the Project to the CITY free and clear of any liens from any
source whatsoever.
The ARTIST warrants that he 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.
ART[CLE 7
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7.1
7.2
7.3
OBLIGATIONS OF cI-rY
C~TY shall assist ART[ST by providing, upon ART[ST's request, all public information it has in its
possession pertaining to the Site.
C['i"Y shall:
a. arrange for access so that AR'I-~ST may enter upon the Site as required for ART[ST to perform
the Work under this Agreement;
b. give prompt written notice to ART[ST whenever the C~-I'Y becomes aware of any development
that affects the scope or timing of the Work;
c. arrange public meetings and consultations as needed for the ART[ST to fulfill the ART[S'Fs
obligations under this Agreement;
d. review materials submitted pursuant to Exhibit A in a reasonably timely manner;
prepare and install, at its expense, a plaque or sign identifying the ART[ST, the title of the
Project, materials used, year of completion, and a narrative explanation of the Project, including
ART[ST's credits, and reasonably maintain such notice in good repair;
f. reasonably assure that the Project is properly maintained and protected, taking into account the
recommendations of the AR'rJST, as stated in the Cataloging Form provided by the ART[ST; and
As part of the Project, ART[ST acknowledges a need for sub-flooring, a retaining wall with perimeter
pavers, and proper illumination. ART[ST has the option of the following, and shall provide CITY with
timely written notice of one of the following options:
a. AR~ST agrees to hire licensed professionals, including but not limited to a licensed professional
engineer or architect registered in the State of Florida and a licensed General Contractor (as said
term is defined in the Florida Statutes) to design, permit and construct the aforestated sub-
flooring, retaining walls and illumination items. C~'I-Y agrees to allocate an additional amount not
to exceed, Ten Thousand dollars ($10,000.00) for this purpose. Such portion of the Work shall be
done in accordance with the Florida Building Code and any other requirements imposed by any
other regulatory agency with applicable jurisdiction. All appropriate approvals, licenses and
permits shall be obtained by and shall be the sole responsibility of ART[ST, and ART[ST shall
provide Contract Administrator with proof of same prior to commencement of design and
permitting and, thereafter, construction of the Work. In the event that ART[ST does not comply
with the preceding requirement, the City shall have no obligation to reimburse AR-I'~ST pursuant
to the sum allocated, as provided herein, or otherwise compensate ART[ST for any costs for
portion of Work associated with this subsection 7.3(a).
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C~-FY shall construct, or shall cause to be constructed, the sub-flooring, retaining wall with
perimeter pavers, and proper illumination for the Work. In connection therewith, CTI-Y shall only
be required to fund a maximum of Ten Thousand Dollars ($10,000.00) for the provision and
installation of said sub-flooring, retaining wall with pavers, and illumination. Should ART[ST elect
to utilize ~T¥S services to provide these items under this option, ART[ST agrees to accept these
items in a time and manner that is at the full discretion of the C~TY. ART[ST agrees to waive any
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and all claims for defects, or for delays or damages related to C~Y'S failure to provide these
items in accordance with ARTIST'S time table, except as provided for in section 3.3.
8.1
8.2
8.3
ARTICLE 8
ARTIST'S R~GHTS
It is understood that the specific location of the Project and its permanent public installation is
integral to this Agreement. CITY agrees to make all reasonable efforts to maintain the integrity of
the Project as defined by its location. The City will not knowingly make any use of the Project in a
manner which would reflect unfavorably on ARTIST's name or reputation as an artist or which would
violate the spirit of the Project or interfere with its creative intent.
C~I-Y shall make a diligent effort to notify ART[ST of any proposed ~ action that would remove the
Project from the Site, or have the result of irreparably damaging or destroying the Project, by
providing notice to AR'I'~ST by registered mail at the most recent address submitted by ART[ST and
on file with the C~-I-Y. In that event, C~Y shall offer the ARTIST the option of removing the Project
from the Site, at no charge to ARTIST for the Project itself, provided that ART[ST will move and/or
transport the Project from the Site at its sole cost and expense, and C]-I-Y shall have no liability to
ART[ST as to the means and method of removal and transport, and shall have no liability to ART[ST
in the event the Project is damaged or destroyed in the process. In the event that ART[ST fails,
within ninety (90) days of receipt of such notice, to remove the Project, CTTY shall have the right to
proceed with the removal of the Project. In the event that CITY makes a diligent, good faith attempt
without success to notify the ARTisT of its intended action, C~-I-Y shall have no further liability to
ART[ST under this Agreement, or as to the Project, and ART[ST shall be deemed to have waived any
and all claims that he may have against C~-I'Y, as a result of damage or destruction of the Project.
The provisions of this subsection 8.2 shall be non-transferable and only apply as to AR'I~ST, and shall
not apply or be enforceable by any heirs, successors, assignees, and/or other transferees and / or
successors in interest of ART[ST.
C~TY agrees to take such measures as are reasonable to maintain the Project, which includes
maintenance and repair of each and every component part. CITY shall have the right to determine,
after consultation with a professional conservator, when and if repairs and restorations to the Project
will be made. During ARTisT's lifetime, C~-I-Y shall not repair the Project without consulting with the
ART[ST. C~I-Y shall attempt to notify ART[ST in the same manner as provided in subsection 8.2
above and, in the event the C~-I-Y makes a diligent, good faith attempt without success to notify
ART[ST of its intended action, CITY shall have no further liability to ARTiST under this Agreement, or
as to the Project, and ARr'[ST shall be deemed to have waived any and all claims that he may have
against CITY, as a result of subsequent repairs or restoration to the Project, or in the event damage
or destruction of the Project pursuant to this subsection 8.3. To the extent practical and during
ART[ST's lifetime, the C2TY, may in its reasonable discretion, consider ART[ST in making or
personally supervising significant repairs, and, if C~'I'Y so deems ART[ST'S participation is necessary,
ART[ST shall be paid a reasonable fee for any such services, provided that C~TY and ART[ST shall
agree in writing, prior to the commencement of any significant repairs or restorations upon ART[ST'S
fee for such services all repairs and restorations shall be made in accordance with recognized
principles of conservation.
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9.1
9.2
9.3
ARTICLE 9
COPYRIGHTS
Neither the whole nor any portion of the Project, shall be the subject of any application for copyright
or patent by or on behalf of the ART[ST without the prior written consent of the CITY. If such
consent is given, and notwithstanding such rights, AR'lIST hereby grants to C1TY a non-exclusive,
perpetual, irrevocable, and royalty free license to reproduce, make, print and/or publish
photographic, filmed or videotaped reproduce, make, print and/or publish photographic, filmed or
videotaped reproductions and other two-dimensional likenesses of the Project and/or the proposals
for the Project for such purposes as determined solely by the CITY in its reasonable discretion. In this
connection, it is understood that public promotional and advertising uses are without limitation. It is
also understood that either of the parties to this Agreement may also permit photographic, filmed,
videotaped or other reproductions of the Project to appear as editorial matter in newspapers,
magazines, periodicals, books, motion picture films and/or videotaped films. In connection with any
such reproduction and publication by any party, that party shall arrange for appropriate credit
identifying the name of the ART[ST as the Project's creator, the title of the Project, the materials,
dimensions, and the location thereof.
ARTIST agrees that all Work performed under this Agreement 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 ART[ST has obtained proper
permission and all releases and other necessary documents.
If the ART[SI- uses any protected material, process or procedure, the ARI'~ST shall disclose such
patent, trademark or copyright in the construction drawings and technical specifications.
10,1
10.2
10,3
10.4
ARTICLE 10
TERMINATION
This Agreement may be terminated for cause by C1TY, through the Contract Administrator, or by
ARllST, upon thirty (30) days prior written notice by the party that elected to terminate.
Termination of this Agreement for"cause" shall include failure to continuously perform the Work in a
timely manner calculated to meet or accomplish the objectives of CI-I-Y as set forth in this Agreement,
a breach of the provisions of this Agreement (notwithstanding whether any such breach was
previously waived or cured), or any other reason necessary to protect the health, safety, or welfare
of the general public.
Notice of termination shall be provided in accordance with the NOTICES section of this Agreement
except that notice of termination which Contract Administrator deems necessary to protect the public
health, safety, or welfare may be by verbal notice which shall be promptly confirmed in writing in
accordance with the NONCES section of this Agreement.
The death or permanent incapacity of the ART[ST shall automatically terminate this Agreement.
Neither the AR1/ST nor the ARTIST's estate shall have any further right to perform hereunder. The
C1TY shall pay the ARTIST's estate the compensation payable for any Work rendered prior to such
termination not heretofore paid, reduced by the amount of additional costs that shall be incurred by
the CI'TY by reason of such termination.
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AR'I'~CLE 11
MISCELLANEOUS
11.1 AUD~I' RIGHT AND RETENTION OF RECORDS
11.2
OTY shall have the right to audit the books, records, and accounts of ART[ST that are related to this
Project. ART[ST shall keep such books, records, and accounts as may be necessary in order to
record complete and correct entries related to the Project.
ART[ST shall preserve and make available, at reasonable times for examination and audit by C~I'Y, 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 applicable, for a minimum period of
three (3) years after termination of this Agreement. l'f 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 C~'Y to be applicable to ART[STs records, ART[ST shall comply
with all requirements thereof; however, no confidentiality or non-disclosure requirement of either
federal or state law shall be violated by C~TY or ART[ST.
NONDISCRIMINATION, EOUAL EMPLOYMENT OPPORTUNITY, and AMERICANS WITH DISABILITIES
ACT
ART[ST 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. ARI'~ST 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, ART[ST 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.
ART[ST'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.
AR'I~ST shall not engage in or commit any discriminatory practice in violation of the Miami Beach
Human Rights Ordinance in performing any services pursuant to this Agreement.
11.3 PUBLIC ENTITY CRIMES ACT
ART[ST 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 CI-I-Y for the construction or repair of a
public building or public work, may not submit bids on leases of real property to C~I-Y, may not be
awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract
with C¥1-Y, and may not transact any business with Q-I-Y in excess of the threshold amount provided
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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
crim.e 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. Services provided by ARTIST pursuant
to this Agreement shall be subject to the supervision of ARTIST. In providing such services, neither
ARTIST nor its agents shall act as officers, employees, or agents of the C1-FY. This Agreement shall
not constitute or make the parties a partnership or joint venture, and furthermore, this Agreement
does not constitute a work for hire arrangement or agreement.
11.5 THIRD PARTY BENEFICIARIES
11.6
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
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:
Art in Public Places
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Attn: Dennis Leyva
with copies to:
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
FOR ARTIST:
Kevin Arrow
1315 Cleveland Road
Miami Beach, Florida 33141
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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.
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 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.
11.8 CONFLICTS
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.
11.9 CONTINGENCY FEE
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.
11.10 WAIVER OF BREACH
The 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 breach and shall not be construed to be a modification of the
terms of this Agreement.
11.11 COMPLIANCE WITH LAWS
ARTIST and CITY 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.
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11.7 ASSIGNMENT AND PERFORMANCE
11.8
ARTIST shall not assign, transfer, or encumber all or any portion of this Agreement without the prior
written consent of the CITY.
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 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.
CONFI TCTS
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.
11.9 CONTINGENCY FEE
11,10
11.11
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.
WAIVER OF BREACH
The 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 breach and shall not be construed to be a modification of the
terms of this Agreement.
COMPLIANCE WITH LAWS
ARTIST and CITY 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.
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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 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.
11.13 3OINT PREPARATION
11.14
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.
PRJORI-I'Y 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 I through 13 of this
Agreement shall prevail and be given effect.
11.15 APPLICABLE LAW AND VENUE
11.16
11.17
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. BY ENTERING INTO THIS AGREEMENT, ARTIST AND CITY EXPRESSLY WAIVE ANY RIGHTS
THEY MAY HAVE TO A TRIAL BY 3URY OF ANY CIVIL LI-I'TGATION RELATED TO, OR ARISING OUT
OF, THIS AGREEMENT.
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 AGREE_~MENTS
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 12,16 above.
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11.18 MULTIPLE ORIGINALS
11.19
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.
INSURANCE
ARTIST shall maintain, at its sole cost and expense, the following types of insurance coverage at all
times throughout the term of this Agreement or until final acceptance of the Project by the Contract
Administrator, whichever is later, only if ARTIST exercises the option provided for in section 7.3:
Comprehensive General Liability in the minimum amount of Three Hundred Thousand
($300,000) dollars per occurrence bodily injury, death, property damage, and personal
injury. This policy must also contain coverage for premises operations, products and
contractual liability.
Contractors must submit proof of Workers' Compensation and Employer's Liability in the form
of a Certificate of Insurance. All other State regulations apply.
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 Contract Administrator. Prior to the Commencement Date of this
Agreement, ARTIST shall provide Contract Administrator with a Certificate of Insurance for each such
policy. ALL POLICIES SHALL NAME THE C1-FY OF MIAMI BEACH, FLORIDA AS AN ADDITIONAL
NAMED INSURED. All such policies shall be obtained from companies authorized to do business in the
State of Florida with an A.M. Best's Insurance Guide (latest edition) rating acceptable to the City's
Risk Manager, and any replacement or substitute company shall also be subject to the approval of
the City's Risk Manager. 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
C1TY, 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.
Notwithstanding the insurance requirements in this subsection 11.1 9, ARTIST shall be solely
responsible for the safe keeping and preservation of any and all Work, and of the Project, and
shall be solely responsible and liable for any risk of loss or damage to any and all Work,
and/or to the Project, up to the CITY's final written acceptance of the Project. In the event that
all or any portion of the Work, or the Project, is lost, stolen, damaged, or destroyed (whether in
whole or in part) prior to the CITY's final written acceptance of the Project, ARTIST shall be
solely responsible for undertaking such corrective measures as shall be deemed reasonably
necessary by the CITY, to repair, replace, redo, and/or restore any and all lost, stolen,
damaged, and/or destroyed (as the case may be) portions of the Work, or of the Project, and
such measures shall be undertaken in accordance with means and methods, as well as a
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completion schedule, as shall be approved by the Contract Administrator, such approval not
to be unreasonable withheld. Further, such measures shall be undertaken at ARTIST's sole
cost and expense, at no additional cost, and/or liability to the CITY.
11.20 INDEMNIFICATION
ARTIST agrees to indemnify and hold harmless the CITY OF MIAMI BEACH 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 the ARTIST, its employees, agents, sub-
consultants, or any other person or entity acting under ARTIS'I~s control, in connection with the
ARTIS'Fs performance of the Work pursuant to this Agreement; and to that extent, the 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 the ARTIST for performance of the Work under this Agreement is the
specific consideration from the cTrY to the ART[ST for the ARTIST's Indemnity Agreement.
The ARTIST's obligation under this Subsection shall not include the obligation to indemnify the CTTY OF
MIAH! BEACH and its officers, employees and agents, from and against any actions or claims which
arise or are alleged to have arisen from negligent acts or omissions or other negligent conduct of the
CTTY and 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 rest of this page is left intentionally blank]
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IN WTI'NESS 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 Mayor, authorized to
execute same by the City Commission, and ART[ST, duly authorized to execute same.
rida
Kevin Arrow
, ~oo~ '?..-'Zda~ of ~ , ~oo~
A'I-FEW:
City Clerk
WTFNESSES:
WTI-NESSESS:
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
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EXHZBZT A
SCOPE OF SERV/CES
ARTWORK/PRO3ECT: Beatles Mosaic Mandala
PURPOSE: AR'I'~ST will design, fabricate and install an artwork/Project to commemorate the Fortieth
Anniversary of the appearance of the Beatles on Miami Beach in 1964.
LOCATZON OF FACZLZTY/SZTE: North Shore Bandshell Park, between 72® and 73rd Streets on Collins
Avenue, Miami Beach, Florida.
ADMINI~I'RA'r~/E COORDINATZON: The CONTRACT ADMINISTRATOR may designate a public art
project manager. The ART[ST shall maintain regular communication with the public art project manager via
phone, fax, letter or e-mail.
DESZGN COLLABORATZON: During the design of the artwork, the AR'f~ST shall collaborate and coordinate
with the Contract Administrator or his/her designated public art project manager, and the C~%Y's designated
Architect/Engineer, Construction Manager, and General Contractor, respectively, at the Facility/Site. The
design of the artwork shall be coordinated with the Facility/Site 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 ART]ST 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, the ART[ST shall create independently all necessary
construction documents for the art and ancillary/support facilities needed to install the art as required by the
c~rY and/or applicable laws and codes; or provide all necessary information on a timely basis in the event
that relevant components of the artwork design must be incorporated into the final construction documents
for the Facility, if appropriate.
CON~'I'RUC11ON AND ZN~TALLATZON COORDZNA'r~ON: During the construction of the Facility and the
installation of the artwork, the ART[ST shall collaborate and coordinate with the Contract Administrator or
his/her designated public art project manager, and the C~-I-Y's designated Facility Architect/Engineer, the
Construction Manager, and the General Contractor. The ART[ST shall coordinate the installation of the
artworks with the Facility construction schedule and install the artwork in compliance with the Facility
construction documents. The AR'I'~ST 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.
DEL/VERABLES: the ART]ST shall provide the following deliverables:
I-A Research.
The ART[ST 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, including an initial
orientation visit, a coordination meeting with the design team, and community
representatives and partner agency presentation meeting(s).
I-B
Conceptual Design. The AR'I'~ST 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, as
follows:
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The ARTIST shall personally present the conceptual design proposal to the Professional
Advisory Committee.
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 CONTRACI' ADMIN][STRATOR. 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 ADH]INISTRATOR 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 artwork support specifications for inclusion in Facility construction documents,
verified cost estimate, sub-contractor list, building permits, and a fabrication and installation
schedule.
Zf the verified cost exceeds the budget, the artist is obligated to redesign the artwork to fit
within the established budget inclusive of all payments to the ARTIST.
3. This phase includes a Site visit for coordination and presentation purposes.
I-D
Fabrication and Tnstallation. The ARTIST shall fabricate, deliver and install all artwork and artwork
support components as per the approved design development drawings.
I-E
Final Conservation Documents. The ARTIST shall submit all photographic documentation and
completed cataloguing forms. Tf 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 ZNSPEC'rZON: Upon completion and installation of all designed and fabricated
components, the ARTIST shall be responsible for obtaining final approval from the CONTRACT
ADMINISTRATOR.
PHOTOGRAPHZC 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 applicable uses by the City.
COMMUNITY ZNVOLVEMENT and EDUCATIONAL OUTREACH: In the development of the artwork
design, the ARTIST shall research the relevant concerns and interests of the CITY, future users of the Facility
and the surrounding community. The ARTIST shall participate in at least one community meeting and two
other public meetings, as shall be determined by the CONTRACT ADNTNTSTRATOR.
'D[MELZNE FOR COMPLETION: ARTIST shall be aware of Facility design and construction timelines and
shall ensure that all artwork components are completed and installed according to the established schedule.
PERMITS: It shall be 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. The C~I'Y agrees to pay for any required permit fees.
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EXHTBZT A-1
PRO3ECT SCHEDULE
-18-
EXHZBZT B
COMPENSA'r[ON AND SCHEDULE OF PAYMENTS
ART[S'I- will be paid the specified installment, upon submitting invoice and documentation substantiating
satisfactory completion of each phase of Work and upon the C1TY's acceptance of said portion of the Work as
detailed in the installment invoice. CI-I-Y shall pay ART[ST the total sum of Fifty-five Thousand Dollars
($55,000.00) for Work that shall include all costs associated with design development and fabrication of the
artwork, materials, labor by sub-consultants and subcontractors, delivery and installation. The CI-FY agrees to
compensate ART[ST an additional Ten Thousand Dollars ($10,000.00) if ARTIST undertakes the additional
elements noted in Section 7.3 (a) of the Agreement.
Payments to ARTiST shall be made for Work satisfactorily completed according to the following schedule:
1. Twenty Thousand Dollars ($20,000.00), which is approximately 36.36% of the fixed fee, to be paid
upon execution of this Agreement.
This amount increases to Thirty Thousand Dollars ($30,000.00) if ARTIST designs and constructs the
elements as described in Section 7.3(a) of the Agreement.
2. Fifteen Thousand Dollars ($15,000.00), which is approximately 27.27% of the fixed fee, to be paid
upon submission to and acceptance by the CONTRACT ADMINISTRATOR of all conceptual design
deliverables as written in the scope of work and obtaining approval of the artwork conceptual design
proposal from the Art in Public Places and the City Commission.
3. Ten Thousand Dollars ($10,000.00), which is approximately 18.18% of the fixed fee, to be paid upon
submission to and approval by the CONTRACT ADMINisTRATOR of photographic documentation
demonstrating that the artwork is 100% fabricated. At Contract Administrator's sole option, Contract
Administrator may deem that a physical inspection of the artwork is warranted prior to acceptance and
payment, and ARTIST shall make the artwork available to Contract Administrator.
Ten Thousand Dollars ($10,000.00), which is approximately 18.18% of the fixed fee, to be paid upon
delivery, installation, and acceptance of the artwork.
RESERVE FOR PROMOTZON AND CONTZNGENCZES: AR'r~ST has agreed to fully perform the Scope of
Services set forth in Article 2 for the total compensation set forth in Section a,.1 above. However, promotional
cost may be allocated, and unforeseen cost may be considered insofar as construction delays or Site changes
or other events which are beyond the control of and are not the fault of AP-r/ST may adversely affect
ARTisT'S costs. Therefore, C1TY has set aside a promotion and contingency reserve amount of Five
Thousand Dollars ($5,000.00) that may, in the sole discretion of cI-rY, be paid to APT[ST in whole or in part,
or may be used for other Project costs. Any additional compensation paid to ART[ST from the contingency
reserve shall be pursuant to written documentation in accordance with Section 11.16 of the Agreement and
that the document shall be signed by the Contract Administrator and the APT[ST. For purposes of this
Section, unforeseen costs shall not include expenses that the Contract Administrator reasonably determines
should have been contemplated by AR'r/ST when developing the Project budget, including the original design
and related artwork budget.
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EXHTBTr C
CTTY OF Mt'AMi' BEACH ART ZN PUBLt'C PLACES
Artist Information
CATALOGING FORM
Catalog #
A. 1. Name:
2. Name you want to use on label and PR materials, if differs from above:
B. Date of Birth:
C. Place of Birth:
D. Address, e-mail, web site:
E. Contact Phone numbers
Business:
Home:
Fax:
F. One paragraph biography of artist:
II,
Work of Art
A. Title:
B. Medium:
C.1. Dimensions in inches or centimeters:
H: W:
2. Image with frame (if any):
H:
W:
D. Frame Description:
D:
D:
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E. Inscription, marks:
F. In case of portable and multiple artwork, note on artist preference for
sequential series, installation height, spacing, etc...):
display (ex:
G. Artwork with electronic components used:
-Name of item:
-Manufacturer info (address, telephone, fax, e-mail):
-Supplier info (address, telephone, fax, e-mail):
H. Artist's statement:
III. Fabrication Information
A. Material(s) used in Artwork:
B, Material Finish:
C. Materials used in the presentation of the project (maquette):
D. Fabricators (name, address, phone, fax, e-mail, web site):
E. Fabrication method (attach diagrams or drawings):
F. Architect/Engineer (name, address, telephone, fax, e-mail):
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VI.
VII:
.Installation
A. Installation executed by (name, address, phone, fax, e-mail, website):
B. Installation method (attach diagram of substructure, footings):
C. Date of Installation:
External Factors
A. Describe physical positioning of the artwork:
B. Describe existing environmental factors which may affect the condition of the artwork:
C. If the work is site-specific, describe the relationship of the work to its site:
Maintenance (attach schedule of maintenance for specific items: light bulb, electronics etc...)
A. Short-term:
B. Long-term:
C. Note desired appearance of the artwork:
Digital copies for use in repair of sound art and graphic reproduction:
Signature
Date
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