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HomeMy WebLinkAboutBrian Tolle, Artwork at Collins Park?bD6- ~ 6 .3/'~ a~b~- .~~y3y~ This Agreement made and entered into this ~6 day of ,Ti¢.yv , 2008, by and between the CITY OF MIAMI BEACH, a municipal corporation existing under the aws of the State of Florida (hereinafter referred to as CITY), and BRIAN TOLLE, an individual, whose principal address is 705 Driggs Avenue, Brooklyn, New York, 11211 (hereinafter referred to as ARTIST). WHEREAS, the CITY intends to undertake a project within the City of Miami Beach, with the support and cooperation of the City of Miami Beach Art in Public Places, which is more particularly described in this Agreement and the attached Exhibit A Scope of Services, and wishes to engage the ARTIST to design, fabricate, transport, and install a unique and original work of art (also referred to herein as the artwork) at the location in Collins Park, 2100 Collins Ave., Miami Beach, Florida, 33139, indicated in the ARTIST'S conceptual design proposal which has previously been approved by the CITY (such location hereafter referred to as the Site) at the agreed upon fees, as set forth in this Agreement; and WHEREAS, the ARTIST desires to contract with the CITY for performance of the aforestated services relative to the work of art, as hereinafter set forth. NOW THEREFORE, CITY and ARTIST, in consideration of the mutual covenants and agreements herein contained, agree as follows: ARTICLE 1 DEFINITIONS AND IDENTIFICATIONS The definitions and identifications set forth below are assumed to be true and correct and are agreed upon by the parties. 1.1 Agreement (or Contract). This document, and other terms and conditions which may be included in the exhibits and documents that are expressly incorporated by reference, as well as any amendments thereto. 1.2 Artist. Brian Tolle, the individual selected to create the work of art contemplated pursuant to this Agreement. 1.3 Architect. M. C. Harry and Associates, Inc., 2780 S.W. Douglas Road, Suite 302, Miami, Florida, 33183. The ARCHITECT has been retained by the CITY, pursuant to CITY Request for Qualifications (RFO) No. 39-03/04, for professional architectural and engineering services associated with the completion of the planning, design, permitting, bid and award (as applicable), project cost review, and construction administration phases for the Collins Park/Rotunda/Municipal Parking Facility Project (Collins Park Project). For purposes of the Agreement, ARCHITECT shall be the individual designated by the CITY who, in conjunction with the CONTRACT ADMINISTRATOR, shall also serve as the CITY'S authorized representative with respect to certain reviews and approvals, as required by the CITY, in this Agreement, including, without limitation, reviews and approvals associated with the design, fabrication, permitting and installation of the Work, and coordination of the Work with respect to its integration within the CITY'S Collins Park Project .ARCHITECT'S services to CITY, with respect to the Project, are attached as Exhibit A-1 hereto. 1.4 City. Shall mean the City of Miami Beach, Florida, a municipal corporation having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139. Unless otherwise -1- ~: ~ a~ '~ "~ ~ ~ a t ;.~ ,~ ~ ^ ~ a~u ~ $ /r .~ .yaw i+s' As~reement between expressly provided iri the Agreement, where certain approvals and submissions are required from the CITY in this Agreement, those shall be required by the City Commission of the City. 1.5 [Intentionally omitted] 1.6 City Commission. Shall mean the governing and legislative body of the CITY. 1.7 City Manager. Shall mean the Chief Administrative Officer of the CITY. 1.8 Contract Administrator. The designee of the City Manager, who shall be the CITY's, authorized representative to coordinate, direct, and review (with ARCHITECT, as applicable) on behalf of the CITY, all matters related to the Work and the Project, except as otherwise provided herein. 1.9 [Intentionally omitted] 1.10 Contract (Agreement) Amendment. Shall mean the written order to the ARTIST approved by the CITY, as specified in this Agreement, and signed by the CITY'S duly authorized representative, authorizing a change in the Project or the method and manner of performance thereof, or an adjustment in the fees and/or completion dates, as applicable. Contract Amendments shall be approved by the City Commission, if they exceed twenty-five thousand dollars ($25,000.00) or the City Manager if they are twenty-five thousand dollars ($25,000.00) or less (or other such amount as may be specified by the City of Miami Beach Procurement Ordinance, as amended). Even for Contract Amendments of less than twenty-five thousand ($25,000.00), the City Manager shall retain the right to seek and obtain concurrence of the City Commission for approval of any such Contract Amendment. 1.11 Exhibits. Shall mean the various exhibits attached to and incorporated in this Agreement and referred to as follows: Exhibit A: Artist's Scope of Services Exhibit A-1: Architect's Scope of Services Exhibit A-2: Project Schedule Exhibit B: Compensation and Schedule of Payments Exhibit C: Cataloging Form 1.12 Notice to Proceed. A written notice issued by the CONTRACT ADMINISTRATOR to the ARTIST authorizing the commencement of the activities identified in said notice. 1.13 Project. That certain unique and original work of art (also referred to as the artwork) to be created by ARTIST and installed on the Site, and to be known as "Maze" (working title), that has been approved by the City Commission, and is further described in Exhibit A, entitled "Artist's Scope of Services", attached hereto. 1.14 Project Budget. Shall mean an amount budgeted by the CITY for the Project, as specified in the in Exhibit A, attached hereto. 1.15 Project Cost. Shall mean the total cost of the Project to the CITY including, design, fabrication, permitting, and installation costs, compensation to ARTIST, contingencies, and other miscellaneous costs. 1.16 Project Scope. Shall mean the description of the Project, as specified in Exhibit A, attached hereto. 1.17 [Intentionally omitted] -2- 1.18 Work. Any work required by Artist under this Agreement (including, without limitation, work described in Exhibit A, attached hereto), to successfully complete the Project. ARTICLE 2 SCOPE OF SERVICES 2.1 ARTIST shall perform all Work identified in this Agreement and Exhibit A for the design, permitting, fabrication, transportation, inspection, and installation of the Project. 22 ARTIST acknowledges and agrees that the CONTRACT ADMINISTRATOR has no authority to make changes that would increase, decrease, or otherwise modify the Scope of Services to be provided under this Agreement, and that any such change and/or modification with respect to the Scope of Services, the time the ARTIST is obligated to commence and complete all such Services, and the amount of compensation the CITY is obligated or committed to pay the ARTIST, must be approved (if at all) by the City Manager or the Mayor and City Commission, in their respective sole discretion, prior to implementation of same. Any such change or modification, if approved, shall be memorialized in writing as a Contract Amendment. 2.3 ARTIST shall provide monthly Project progress reports and/or deliverables in a form and manner acceptable to the CONTRACT ADMINISTRATOR and/or ARCHITECT, as applicable. 2.4 Upon completion of the PROJECT, the ARTIST shall furnish the CONTRACT ADMINISTRATOR with professional photographic documentation showing the completed Artwork as follows: a. Photographs shall include the following: 1. One (1) compact disc containing files of high resolution digital photographs of the completed artwork 2. Two (2) identical sets of twelve color slides, printed from photographs taken using a high resolution digital camera, illustrating various aspects of the artwork within the SITE. 3. Two 4x5 color transparencies, generated from photographs taken using high resolution digital cameras. 4. Four 8x10 black and white photographs, printed from photographs taken using high resolution digital cameras. Slides and photographs shall be of professional quality, and shall be acceptable and satisfactory to the CONTRACT ADMINISTRATOR. c. In addition to the photographic documentation referenced above, ARTIST shall also, upon completion of the PROJECT, provide CONTRACT ADMINISTRATOR with copies of electronic files, sketches, drawings, construction documents, and as-built plans showing and/or accurately depicting the completed Artwork. 2.5 Upon completion of the Project, ARTIST 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, "Cataloging Form", attached hereto. 2.6 ARTIST shall be solely responsible for the quality and timely prosecution, completion and installation of the Work and the Project. The ARTIST shall be responsible for designing the Project so that it can be fabricated and installed without exceeding the approved Project Budget. -3- 2.7 While ARTIST acknowledges and warrants that an essential element of this Agreement is the personal skill and creativity of the ARTIST, and that he is solely responsible for the quality of the Project, the ARTIST may subcontract and/or assign portions of the Work to another party, subject to the prior written consent of the CONTRACT ADMINISTRATOR. Notwithstanding the Contract Administrator's approval of any such subcontract and/or assignment, ARTIST will still be held ultimately responsible for all provisions of the Work. ARTIST further warrants that he shall be solely responsible for supervision of (and any compensation to) such third parties, and that the CITY shall have no liability with regard to same. 2.8 ARTIST agrees that all Work, and the completed Project, shall comply with all applicable Federal, State, Miami-Dade County, and City of Miami Beach laws, ordinances, codes and regulations. ARTIST shall be solely responsible for obtaining any and all required approvals from all governmental authorities that have jurisdiction over the Project and for obtaining all applicable permits related to the Project. 2.9 The ARTIST 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 consent of the CONTRACT ADMINISTRATOR. 2.10 The ARTIST shall take all necessary steps to coordinate the Work, as may be directed by the CONTRACT ADMINISTRATOR and/or CIP Office, with any ongoing work of the CITY, or any third party under the direction and control of the CITY, on or near the Site including, without limitation, the CITY's Collins Park Project. In the event the Work is combined or otherwise coordinated with ongoing work of the CITY or a third party responsible to the CITY (and not within the control of the ARTIST), the ARTIST shall not be responsible for such third party work. If any part of the Work depends upon proper execution or results of work of the CITY, or a third party responsible to the CITY and not under ARTIST's control, the ARTIST 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 his Work unsuitable for timely and proper execution and results by the ARTIST. 2.11 While ARTIST is solely responsible for the design, fabrication, permitting, transportation, inspection and installation of the Work and the complete Project, the following provisions shall apply: a. The CONTRACT ADMINISTRATOR shall notify ARTIST of the CITY's, or any other contractor under the direction and control of the CITY, construction schedules in and around the Site, as and if they are known. The ARTIST shall pertorm the Work in a manner and time so as not to cause interterence with any of the operations of the CITY or such third party contractor(s). In the event of conflict between the schedules of a third party contractor, CITY, and ARTIST, the conflict will be resolved by the CONTRACT ADMINISTRATOR, and the CONTRACT ADMINISTRATOR'S decision and resolution as to same shall be final and binding upon all parties. b. ARTIST shall be solely responsible for conducting any and all inspections of the Site for purposes of ascertaining the condition of same, for the proper execution of the Work, and for completion and installation of the Project. To the extent known, and to the extent any and all such information is in the CITY's possession, CONTRACTOR ADMINISTRATOR shall make available to ARTIST, without representation, any background materials and information on matters affecting the Site. -4- c. When working on the Site, ARTIST shall promptly perform such periodic clean up as may be required by the CONTRACT ADMINISTRATOR, and shall also remove any of his equipment, excess materials, and waste promptly from the Site, as directed by CONTRACT ADMINISTRATOR. 2.12 ARTIST shall bear any transportation and storage costs resulting from the fabrication, delivery, storage and installation of the Work and/or the Project. 2.13 Title to the work of art shall pass to the City following the CONTRACT ADMINISTRATOR'S inspection of the Work and, if the Work is approved, upon CONTRACT ADMINISTRATOR'S issuance of written final acceptance of the complete installed Project. Final acceptance shall be deemed to occur as of the later of (1) the date of the CITY's notification (through CONTRACT ADMINSTRATOR) to ARTIST of final acceptance, or (2) ninety (90) business days after the ARTIST has notified the CITY in writing, that the Work has been completed and is ready for inspection (provided, however, that if the CITY, upon receipt of such notice and prior to the expiration of the 90-day period, gives ARTIST written notice specifying and describing the Work which has not been completed, and/or the CITY does not otherwise accept Work due to defect, then the 90-day period in this subsection (2) shall be extended for an additional 90-day period). Upon demand from the CITY, ARTIST shall immediately execute a Bill of Sale or such other document, as prepared by the CITY, memorializing the transfer of title of the work of art from ARTIST to the CITY. In furtherance of the aforestated, 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, or, if the 90-day period expires as per 2.13 (2) and ARTIST has executed the required Bill of Sale (and/or other conveyance document) to the CITY. 2.14 Upon CONTRACT ADMINISTRATOR'S written fnal acceptance of the complete installed Project and transfer of title of the work of art to the CITY, all documents related to the design, fabrication, and installation of the Project including, without limitation, "as built" documents, shall be turned over to the CONTRACT ADMINISTRATOR and become the exclusive property of the CITY. The CITY shall be free to exhibit and/or reproduce these documents as a record of ARTIST'S conception of the Project. ARTICLE 3 TERM and TIME OF PERFORMANCE 3.1 The term of this Agreement shall begin on the date it is fully executed by both parties. Thereafter, ARTIST shall diligently prosecute the Work in accordance with the Project Schedule set forth in Exhibit A-2. 3.2 Time shall be deemed to be of the essence in ARTIST'S performance of his duties, obligations and responsibilities, as required by this Agreement. 3.3 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 pertorming its obligations here- under; or in making the Site available to ARTIST for proceeding with the Work; or if conditions beyond the ARTIST'S control render timely pertormance of the ARTIST'S 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. 3.4 Either party is excused from performance and shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of a major force event such as -5- hurricane, fire, civil disobedience, riots, rebellions, explosion, flood, storm, Acts of God, and similar occurrences. Failure to fulfill contractual obligations due to major forces set forth in the preceding sentence will not be considered a breach of contract, provided that such obligations shall be suspended only for the duration of such condition. ARTICLE 4 COMPENSATION 4.1 CITY agrees to pay ARTIST, in the manner specified in Section 4.4 and Exhibit B, "Compensation and Schedule of Payments", the total amount of Three Hundred Twenty Seven Thousand and Two Hundred Dollars ($327,200.00) which amount shall be the total compensation to ARTIST for the Project. No amount shall be paid to ARTIST for reimbursable or other expenses. 4.2 At its sole discretion, CITY has included a ten (10%) percent contingency fee, for the amount of Thirty Two Thousand Seven Hundred and Twenty Dollars ($32,720.00), to provide for unforeseen costs, including but not limited to, construction delays or Site changes. This amount, in whole or in part, shall be included for the sole benefit of the CITY and shall not be considered part of ARTIST'S compensation. 4.3 ARTIST may submit invoices for compensation no more often than on a monthly basis, but only after the portion of the Work for which the invoice is submitted has been satisfactorily completed and accepted by the CONTRACT ADMINISTRATOR and/or ARCHITECT, as applicable. An original invoice plus one copy shall be submitted to both CONTRACT ADMINISTRATOR and ARCHITECT, 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 and portion of the Work performed (percentage of completion). All invoices must be signed off and approved by both CONTRACT ADMINISTRATOR and ARCHITECT as a condition of approval for payment by CITY. A written Project progress report shall accompany each invoice, describing the Work completed during that period. Photographic documentation demonstrating progress of the Work shall also be included with each invoice, if required by the CONTRACT ADMINISTRATOR. 4.4 CITY shall pay ARTIST only for Work satisfactorily performed and accepted by the CONTRACT ADMINISTRATOR and/or ARCHITECT, as applicable, within thirty (30) calendar days of receipt by the CITY of ARTIST's proper invoice. Invoices shall be submitted by ARTIST to the CITY as follows: FOR CONTRACT ADMINISTRATOR: Dennis Leyva City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 dennislevva(mm iamibeachfl.oov FOR ARCHITECT: Wyatt Porter-Brown Vice President/Senior Project Manager M.C. Harry and Associates, Inc. 2780 S.W. Douglas Road, Suite 302 Miami, Florida 33133 4.5 Notwithstanding any provision of this Agreement to the contrary, CITY may, at the sole discretion of the CONTRACT ADMINISTRATOR, reasonably withhold, in whole or in part, a portion of any or all payments due under the Agreement, to the extent necessary to protect itself from loss on -ti- account of inadequate or defective Work which has not been accepted by CONTRACT ADMINISTRATOR, or which has not been remedied or resolved in a manner satisfactory to CONTRACT ADMINISTRATOR. 4.6 Payment shall be made to ARTIST at: Brian Tolle 705 Driggs Avenue Brooklyn, New York 11211 ARTICLE 5 CHANGES IN SCOPE OF SERVICES 5.1 Any change to the Scope of Services must be accomplished by a Contract Amendment, approved by the City Commission and/or the City Manager, as applicable, and executed by the parties in accordance with Section 11.16. 5.2 Any significant changes in the scope, design, color, size, material, utility and support requirements, and/or texture of the Work or of the Project, or location of the Site must be approved in writing by the CONTRACT ADMINISTRATOR prior to implementation of same. A significant change is any change that affects the cost, installation, scheduling, Site preparation or maintenance of the Work, and/or the Project, or the concept of the Project, as represented in the original approved design. ARTICLE 6 ARTIST'S WARRANTIES 6.1 The ARTIST warrants that (a) the Project being commissioned is the original product of the ARTIST'S own creative efforts; and (b) the Project is original, or in other words, an edition of one (1), and shall in no way be duplicated, copied, and/or otherwise replicated by Artist with respect to any future commissioned public or private projects. 6.2 The ARTIST warrants that reasonable maintenance of the Project will not require any extraordinary procedures. 6.3 The ARTIST warrants that he shall deliver the Project to the CITY free and clear of any liens from any source whatsoever. 6.4 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 create, fabricate and install public works of art of a similar nature. ARTICLE 7 OBLIGATIONS OF CITY 7.1 CITY shall assist ARTIST by providing, upon ARTIST'S request, but without representation by CITY of any kind, all public information it has in its possession pertaining to the Site. 7.2 CITY shall: a. provide ARTIST with the Project Budget; b. arrange for access so that ARTIST may enter upon the Site as required for ARTIST to perform the Work under this Agreement; -7- c. give prompt written notice to ARTIST whenever the CITY becomes aware of any development that affects the scope or timing of the Work; d. arrange public meetings and consultations, as deemed necessary by the City to fulfill the ARTIST'S obligations under this Agreement; e. review submitted materials (whether through CONTRACT ADMINITRATOR or ARCHITECT, as applicable) in a reasonably timely manner; f. prepare and install, at its expense, a plaque or sign identifying the ARTIST, the title of the Project, materials used, year of completion, and a narrative explanation of the Project, including ARTIST'S credits, and reasonably maintain such notice in good repair; g. reasonably assure that the Project is properly maintained, taking into account the recommendations of the ARTIST, as set forth in Exhibit C, to be provided by the ARTIST. ARTICLE 8 ARTIST'S RIGHTS 8.1 It is understood that the specific location of the Project and its permanent public installation is integral to this Agreement. The CITY agrees to make all reasonable efforts to maintain the integrity of the Project as defined by its location (the Site). 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 intertere with its creative intent. 8.2 CITY shall notify ARTIST of any proposed CITY action that would remove the Project from the Site, or have the result of irreparably damaging or destroying the Project, by providing notice to ARTIST by registered mail at the most recent address submitted by ARTIST and on file with the CITY. In that event, CITY shall offer the ARTIST the option of removing the Project from the Site, at no charge to ARTIST for the Project itself, provided that ARTIST will move and/or transport the Project from the Site at his sole cost and expense, and CITY shall have no liability to ARTIST as to the means and method of removal and transport, and shall have no other liability to ARTIST in the event the Project is damaged or destroyed in the process. In the event that ARTIST fails, within ninety (90) days of receipt of such notice, to remove the Project, CITY shall have the right to proceed with the removal of the Project. In the event that CITY has used reasonable efforts, without success, to notify the ARTIST of its intended action, CITY shall have no further liability to ARTIST under this Agreement, or as to the Project, and ARTIST shall be deemed to have waived any and all claims that he may have against CITY as a result of such relocation, removal, damage or destruction of the Project. The provisions of this subsection 8.2 shall be non- transferable and only apply as to ARTIST, and shall not apply or be enforceable by any heirs, successors, assignees, and/or other transferees and / or successors in interest of ARTIST. 8.3 Subject to subsection 7.2(g), the CITY agrees to take such measures as it deems necessary, in its reasonable discretion, 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, CITY shall not repair the Project without consulting with the ARTIST. CITY shall attempt to notify ARTIST in the same manner as provided in subsection 8.2 above and, in the event the CITY has made reasonable efforts, without success, to notify ARTIST of its intended action, CITY shall have no further liability to ARTIST under this Agreement or as to the Project, and ARTIST shall be deemed to have waived any and all claims that he may have against CITY, as a result of such repairs or restoration to the Project, or in the event of any resultant damage or destruction of the Project pursuant to this subsection 8.3. To the extent practical and during ARTIST'S lifetime, the CITY may, in its sole discretion, consider ARTIST in -$- making or personally supervising significant repairs and, if CITY so deems ARTIST'S participation is necessary, ARTIST shall be paid a reasonable fee for any such services, provided that CITY and ARTIST shall agree in writing, prior to the commencement of any significant repairs or restorations, upon ARTIST'S fee for such services. All repairs and restorations shall be made in accordance with recognized principles of conservation. ARTICLE 9 COPYRIGHTS 9.1 INTELLECTUAL PROPERTY. Notwithstanding the foregoing, the ARTIST's name, likeness, signature, preparatory drawings, designs and photographic or facsimile images of the artwork, and the artwork, and all copyrights, trademarks, service marks, logos and other images related to ARTIST or the artwork, and any derivative of the same, and any right to commercially exploit the same (all of the foregoing, collectively and individually, the "Intellectual Property') shall be the exclusive property of ARTIST. The CITY and CONTRACT ADMINISTRATOR or either of them, shall take such action (including signature and assistance in preparation of documents or the giving of testimony) as may be requested by the ARTIST to confirm ARTIST'S ownership of Intellectual Property as provided herein. ARTIST may apply to register any mark or copyright which depicts, is derived from, represents, duplicates or is related to ARTIST or the artwork, in any country, state, or province. 9.2 LICENSE. ARTIST hereby grants to CITY anon-exclusive, perpetual, irrevocable, and royalty- free license to reproduce, make, print and/or publish photographic, filmed or videotaped reproductions and other two-dimensional likenesses of the Artwork and/or the proposals for the Artwork for such purposes as determined solely by the CITY in its discretion for the entire term of the work's copyright, subject to the limitations set forth herein. In this connection, it is understood that the uses contemplated under this license include, without limitation, public promotional and advertising uses, but the right to grant third party location licenses during the lifetime of the ARTIST is limited as provided in Section 9.3 below. It is also understood that, subject to Section 9.3, either of the parties to this Agreement may-permit photographic, filmed, videotaped or other reproductions of the Artwork to appear in newspapers, magazines, periodicals, books, motion picture films and/or videotaped films in accordance with "fair use" as defined in 17 USC §107. Notwithstanding anything to the contrary herein, any reproduction of the Work for commercial purposes (including on merchandize e.g., t-shirts, harts or in commercial advertising for third party products or) shall be subject to notifying the ARTIST. In connection with any such reproduction and publication by any party, that party shall arrange for appropriate credit identifying the name of the ARTIST as the Artwork's creator, the title of the Artwork, the materials, dimensions, and'the location thereof. 9.3 ARTIST agrees that all Work pertormed under this Agreement shall comply with all applicable patent, trademark and copyright laws, rules, regulations and codes. The ARTIST further agrees that it will not knowingly use any third party's patent, trademark or copyright unless ARTIST has obtained proper permission and all releases and other necessary documents. If 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 and, in any event, prior to actual fabrication of the Artwork. 9.4 INFRINGEMENT. In the event that CITY learns of any infringement, threatened infringement, or passing-off, of all or any portion of the artwork, or that any third party alleges or claims that any element of the artwork is liable to cause deception or confusion to the public, or is liable to dilute or infringe any right, CITY shall make all reasonable efforts to (a) forthwith notify ARTIST or its authorized representative giving particulars thereof; and (b) provide necessary information and assistance to ARTIST or its authorized representative. Either CITY or ARTIST may bring infringement actions against third parties. Any award received from such actions shall be split -9- evenly between CITY and ARTIST after reimbursement to the appropriate party for expenses and costs, including without limitation reasonable attorneys' fees, incurred in bringing such actions. In any event, CITY and ARTIST will cooperate with each other to whatever extent is necessary to prosecute any such action including, without prejudice to the generality of this requirement, consenting to be a party to the proceedings. ARTICLE 10 TERMINATION 10.1 This Agreement may be terminated for cause by CITY, through the CONTRACT ADMINISTRATOR, upon thirty (30) days prior written notice to ARTIST. 10.2 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 CITY as set forth in this Agreement; a breach of the provisions of this Agreement (notwithstanding whether any such breach was previously waived or cured); or for any other reason necessary to protect the health, safety, or welfare of the general public. 10.3 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 NOTICES section of this Agreement. 10.4 In the event of a termination under this Article, the CITY shall be fully discharged from any and all liabilities, duties and terms arising out oflor by virtue of this Agreement except for any compensation due and owing to ARTIST with regard to Work satisfactorily performed and accepted prior to the period before the effective date of termination. Notwithstanding the above, the ARTIST shall not be relieved of liability to the CITY for damages sustained by the CITY by any breach of the Agreement by ARTIST. The CITY, at its sole option and discretion, shall be additionally entitled to bring any and all legal/equitable actions as it may deem necessary to enforce the CITY's rights and remedies against ARTIST. The CITY shall be entitled to recover all costs of such actions, including reasonable attorney's fees. 10.5 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 or obligation to perform hereunder. The CITY shall pay the ARTIST's estate the compensation payable for any Work satisfactorily performed and accepted prior to such termination (not heretofore paid to ARTIST), reduced by the amount of additional costs that shall be incurred by the CITY by reason of such termination. ARTICLE 11 MISCELLANEOUS 11.1 AUDIT RIGHT AND RETENTION OF RECORDS CITY shall have the right to audit the books, records, and accounts of ARTIST 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 the CITY'S Chief Financial Officer or his/her designee, 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 -10- 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. 11.2 NONDISCRIMINATION EQUAL EMPLOYMENT OPPORTUNITY and AMERICANS WITH DISABILITIES ACT ARTIST shall not unlawfully discriminate against any person in its operations and activities or in its use or expenditure of funds in fulfilling its obligations under this Agreement. ARTIST shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act (ADA) in the course of providing any services funded by CITY, including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. 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, as same may be amended, in performing any services pursuant to this Agreement. 11.3 PUBLIC ENTITY CRIMES ACT ARTIST represents that the execution of this Agreement will not violate the Public Entity Crimes Act (Fla. Stat. §287.133), which essentially provides that a person or affiliate who is a contractor, consultant or other provider and who has been placed on the convicted vendor list following a conviction for a Public Entity Crime may not submit a bid on a contract to provide any goods or services to CITY, may not submit a bid on a contract with CITY for the construction or repair of a public building or public work, may not submit bids on leases of real property to CITY, may not be awarded or pertorm 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 amourit of money involved or whether ARTIST has been placed on the convicted vendor list. 11.4 INDEPENDENT CONTRACTOR ARTIST is an independent contractor under this Agreement. In providing such services, neither ARTIST nor its agents shall act as officers, employees, or agents of the CITY. This Agreement shall not constitute or make the parties a partnership or joint venture, and furthermore, this Agreement does not constitute a work for hire arrangement or agreement. 11.5 THIRD PARTY BENEFICIARIES Neither ARTIST nor CITY intends to directly or substantially benefit a third party by this Agreement. Therefore, the parties agree that there are no third party beneficiaries to this -11- Agreement and that no third party shall be entitled to assert a claim against either of them based upon this Agreement. The parties expressly acknowledge that it is not their intent to create any rights or obligations in any third person or entity under this Agreement. 11.6 11.7 11.8 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 with copies to: City of Miami Beach City Manager 1700 Convention Center Drive City of Miami Beach Miami Beach, FL 33139 1700 Convention Center Drive Attn: Dennis Leyva Miami Beach, Florida 33139 FOR ARTIST Brian Tolle with copies to: 705 Driggs Avenue Donn Zaretsky, Esq. Brooklyn, New York 11211 John Silberman Associates 145 East 57~h Street New York, New York 10022 ASSIGNMENT AND PERFORMANCE Neither party shall assign, transfer, or encumber all or any portion of this Agreement without the prior written consent of the other, which consent, if given at all, shall be at such party's sole discretion. ARTIST represents that all persons providing any Work 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, services and work contemplated in the Scope of Services and to provide and perform same for the agreed compensation. ARTIST shall perform his duties, obligations, and services and work under this Agreement in a skillful and respectable manner. The quality of ARTIST's performance and all interim and final Work provided to or on behalf of CITY shall be comparable to the best national and international standards. CONFLICTS Neither ARTIST nor their employees and/or sub-contractors shall have or hold any continuing or frequently recurring employment or contractual relationship that is substantially antagonistic or incompatible with ARTIST'S loyal and conscientious exercise of judgment related to its performance under this Agreement. ARTIST agrees that none of its or employees and/orsub-contractors shall, during the term of this Agreement, serve as an expert witness against CITY in any legal or administrative proceeding in which he or she is not a party, unless compelled by court process. Further, ARTIST agrees that -12- such persons shall not give sworn testimony or issue a report or writing, as an expression of his or her expert opinion, which is adverse or prejudicial to the interests of CITY in connection with any such pending or threatened legal or administrative proceeding. The limitations of this section shall not preclude ARTIST or any other persons from representing themselves in any action or in any administrative or legal proceeding. 11.9 CONTINGENCY FEE ARTIST warrants that it has not employed or retained any company or person, other than a bona fide employee and/or sub-contractor working solely for ARTIST, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee and/or sub-contractor working solely for ARTIST, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For a breach or violation of this provision, the CITY shall have the right to terminate this Agreement without liability, at its discretion, or to deduct from the Agreement price or otherwise recover the full amount of such fee, commission, percentage, gift or consideration. 11.10 WAIVER OF BREACH A party's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision or modification of this Agreement. A party's waiver of any breach of a provision of this Agreement shall not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of the terms of this Agreement. 11.11 COMPLIANCE WITH LAWS ARTIST shall comply with all Federal, State, and local laws, codes, ordinances, rules, and regulations in performing his duties, responsibilities, and obligations related to this Agreement. 11.12 SEVERANCE In the event this Agreement or a portion of this Agreement is found by a court of competent jurisdiction to be invalid, the remaining provisions shall continue to be effective unless CITY elects to terminate this Agreement. 11.13 JOINT PREPARATION The parties hereto acknowledge that they have sought and received whatever competent advice and counsel as was necessary for them to form a full and complete understanding of all rights and obligations herein and that the preparation of this Agreement has been a joint effort of the parties, the language has been agreed to by parties to express their mutual intent and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the parties than the other. 11.14 [Intentionally omitted] 11.15 APPLICABLE LAW AND VENUE 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. -13- 11.16 AMENDMENTS No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this Agreement and approved and executed by the City Commission, if over $25,000, or the City Manager, if less than $25,000, and ARTIST. 11.17 PRIOR AGREEMENTS This document incorporates and includes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained herein and the parties agree that there are no commitments, agreements or understandings concerning the subject matter of this Agreement that are not contained in this document. Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. It is further agreed that no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document in accordance with subsection 11.16 above. 11.18 [Intentionally omitted] 11.19 INSURANCE ARTIST shall maintain, at its sole cost and expense, the following types of insurance coverage at all times throughout the term of this Agreement or until final acceptance of the Project, whichever is later: a. Comprehensive General Liability in the minimum amount of One Million ($1,000,000) dollars per occurrence bodily injury, death, property damage, and personal injury. This policy must also contain coverage for premises operations, products and contractual liability. b. Contractors must submit proof of Workers' Compensation and Employer's Liability in the form of a Certificate of Insurance. All other State regulations apply. c. Automobile insurance is required in the amount of Three Hundred Thousand ($300,000) dollars if ARTIST will be parking vehicles on public property, which is not a designated public parking space, to unload materials/supplies. The City of Miami Beach must be named as an additional insured and policyholder on all insurance certificates issued. All insurance policies must be issued by companies that are authorized to do business in the State of Florida, and have a rating of B+VI or better in the current edition of Best's Key Rating Guide. The policies of insurance referred to above shall not be subject to cancellation or changing coverage except upon at least thirty (30) days prior written notice to the CITY, and then only subject to the prior written approval of the City's Risk Manager. Prior to the Commencement Date of this Agreement, ARTIST shall provide CONTRACT ADMINISTRATOR with a Certificate of Insurance for each such policy. Should ARTIST fail to obtain, maintain or renew the policies of insurance referred to above, in the required amounts, the CITY may, at its sole discretion, obtain such insurance, and any sums expended by CITY in obtaining said insurance, shall be repaid by ARTIST to CITY, plus ten percent (10°/a) 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. -14- 11.20 INDEMNIFICATION ARTIST agrees to indemnify and hold harmless the CITY and its officers, employees and agents, from and against any and all actions, claims, liabilities, losses, and expenses, including, but not limited to, attorneys' fees, for personal, economic or bodily injury, wrongful death, loss of or damage to property, at law or in equity, which may arise or be alleged to have arisen from the negligent acts, errors, omissions or other negligent conduct of the ARTIST, its employees, agents, sub-consultants, or any other person or entity acting under ARTIST's control, in connection with the ARTIST's 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 CITY to the ARTIST for the ARTIST'S Indemnity Agreement. The ARTIST'S obligation under this Subsection shall not include the obligation to indemnify the CITY OF MIAMI BEACH and its offcers, 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 CITY 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. Upon final acceptance, the CITY shall, to the extent permitted by law, indemnify and hold harmless the ARTIST against any and all claims or liabilities then existing or arising thereafter in connection with the Work, the Site, the Project or this Agreement, except claims by the CITY against the ARTIST and claims which may occur as a result of the ARTIST'S breach of the warranties provided in Article 6. IN WITNESS WHEREOF, the parties have made and executed this Agreement on the respective dates, as executed below by their respective duly authorized officials. . CITY City of Miami Beach, Florida B~~.,~ ~ ~ oc~~.u~r~/ M ~yof, "1%~tti Herrer Bower 7 [G day/of /!'1ldlL~ /~- , 2008 ATTEST: / /1 (/ 11 1 City Clerk Robert Parcher -15- ARTIS By: Brian T day of~~'~° ~ , 2008 WITNESSES: - ' Print: i 'C WITNESSESS: ~ C Print: .t..ar eC~s..i APPROVED AS TO FORM 8 GUAGI 8r FOR)CUTION EXHIBIT A ARTIST'S SCOPE OF SERVICES ARTWORKIPROJECT: "Maze" (working title) PURPOSE: ARTIST will design fabricate, permit, transport, inspect, and install the above original work of art (also referred to as artwork or Project). LOCATION OF SITE: Collins Park, 2100 Collins Ave., Miami Beach, Florida. ADMINISTRATIVE COORDINATION: The CONTRACT ADMINISTRATOR shall be the CITY'S authorized representative to coordinate, direct, and review (with ARCHITECT, as applicable and as provided herein), on behalf of the CITY, all matters related to the Work. The ARTIST shall maintain regular communication with the CONTRACT ADMINISTRATOR via phone, fax, letter or a-mail. DESIGN COLLABORATION: During the design of the artwork, the ARTIST shall coordinate its progress with the CONTRACT ADMINISTRATOR and the CIP Office. The design of the artwork shall be coordinated with the design process for the CITY's Collins Park Project in the following areas: aesthetics, public presentations, construction documents, cost estimates and Collins Park Project schedules. Should the design of the artwork require specialized professional services, the ARTIST shall hire an appropriate sub-consultant and/or sub-contractor, subject to the prior written approval of the CONTRACT ADMINISTRATOR. Upon approval of the artwork design, the ARTIST shall prepare all necessary construction documents for fabrication of the artwork and ancillary/support facilities needed to install the artwork, as required by this Agreement, and in compliance with all applicable laws and codes. ARTIST shall provide all necessary information on a timely basis to the ARCHITECT in the event that relevant components of the artwork design must be incorporated into the final construction documents for the Collins Park Project. CONSTRUCTION AND INSTALLATION COORDINATION: During the construction of the Collins Park Project and the installation of the artwork, the ARTIST shall collaborate and coordinate the Work with the CONTRACT ADMINISTRATOR and the ARCHITECT. The ARTIST shall install the artwork in accordance with the Collins Park Project construction documents and in compliance with the Collins Park Project construction schedule. 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. The ARTIST shall provide documentation of background research involving site specific environmental and cultural elements and site documentation. I-B Conceptual Design. The ARTIST shall develop a conceptual design proposal for the Project and shall secure the advisory recommendation of its approval by the Miami Beach Art in Public Places (which is an advisory board of the CITY) as follows: 1. The ARTIST shall personally present the conceptual design proposal to the Art in Public Places Committee. 2. This phase includes a Site visit for presentation to the Art in Public Places Committee and coordination with the ARCHITECT. 3. This phase includes a Site visit by the ARTIST or ARTIST's representative for presentation to the City's Design Review Board, and to further coordinate design, fabrication, and installation of the Project with the CONTRACT ADMINISTRATOR and -16- the ARCHITECT. The CITY acknowledges that this phase I-B has been successfully completed. I-C Desiqn Development. The ARTIST shall complete the design development of the approved artwork, develop construction documents, based on the approved concept, for fabrication of the work, coordinate the Work with the CONTRACT ADMINISTRATOR and ARCHITECT, and secure all applicable approvals and permits. Approval by the CONTRACT ADMINISTRATOR and notice to proceed for fabrication shall occur after submittal of all applicable artwork deliverables and shall require the additional review and approval of the ARCHITECT (which shall occur concurrent with CONTRACT ADMINISTRATOR'S review and approval process). 1. The ARTIST shall submit final design drawings for fabrication, artist proofs, material samples, and artwork support specifications for inclusion in the Collins Park Project construction documents, verified cost estimate, sub-contractor list, permits and approvals, and a fabrication and installation schedule. 2. If the verified cost exceeds the Project Budget, the ARTIST shall be obligated to redesign the artwork to fit within the established budget, inclusive of all payments to the ARTIST, at no additional charge to CITY. 3. ARTIST shall coordinate and participate in all product and material testing related to the Project with the CONTRACT ADMINISTRATOR and the ARCHITECT, as applicable, and determine final product and material with the CITY subsequent to testing. 4. This phase includes Site visits for coordination and presentation purposes. I-D Fabrication and Installation. The ARTIST shall fabricate, deliver and install all artwork and artwork support components, as per the approved construction drawings. ARTIST shall provide construction administration services as required during the installation of the artwork at the Site, including, but not limited to, the coordination of all applicable inspections by all governmental authorities having jurisdiction over the Project. I-E Final Conservation Documents. Upon completion and installation of the artwork, the ARTIST shall submit all photographic documentation and completed cataloging forms including shop drawings, manufacturer specifications and product cut-sheets, as applicable. If the ARTIST utilizes computer technology in the fabrication of the artwork, the ARTIST shall submit electronic copies of any computer files that will support on-going operations or future repairs and conservation of the artwork. ARTIST shall also submit replacement material(s) and/or parts, as applicable, and as deemed necessary by the ARTIST and CONTRACT ADMINISTRATOR, to be used for future repairs of the artwork (quantities to be determined by ARTIST and CONTRACT ADMINISTRATOR). ARTIST to demonstrate any maintenance and replacement procedures of the artwork, as deemed necessary by the CONTRACT ADMINISTRATOR. I-F Warranty Period. All Work furnished under this Agreement shall be guaranteed against defective materials and workmanship, improper performance and noncompliance with the approve construction drawings, for a period of thirty (30) days after final acceptance of the Project by CONTRACT ADMINISTRATOR. COMPLETION AND INSPECTION: Upon completion and installation of all designed and fabricated components, the ARTIST shall be responsible for obtaining final approval from all applicable governmental authorities. If CONTRACT ADMINISTRATOR finds the Work acceptable, the requirements of the Agreement with regard to design, fabrication, and installation of the Work and the Project satisfied, and all conditions of the permits and regulatory agencies fulfilled, final approval shall be obtained from the CONTRACT ADMINISTRATOR. -17- PHOTOGRAPHIC DOCUMENTATION: Professional photo-documentation suitable for publication shall include images of all major aspects of the Project. The ARTIST-supplied photo-documentation shall be reproducible, at no cost to the CITY, for any and all applicable 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 CITY, future users of the Park, 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 ADMINISTRATOR. TIMELINE FOR COMPLETION: ARTIST shall coordinate the progress of the Work with the CONTRACT ADMINISTRATOR and/or ARCHITECT and shall ensure that all artwork components are completed and installed according to the established Project schedule and within the construction timeframe for the Collins Park Project. PERMITS AND APPROVALS: ARTIST shall prepare applications and such documents and design data as may be required to procure approvals from all such governmental authorities that have jurisdiction over the Project. The ARTIST shall participate in meetings, submissions, resubmissions and negotiations with such authorities. The ARTIST shall respond to comments by such authorities in a timely manner to adhere to Project Schedule. ARTIST shall be responsible for formally transmitting and receiving permits to and from the respective jurisdictional authorities. However, the ARTIST shall coordinate permitting and approval related issues with the ARCHITECT, and copy the CONTRACT ADMINISTRATOR on all permit related correspondence. The receipt of all necessary permits is a condition precedent to the fabrication of the Work. The CITY agrees to pay for any required permit fees. As of the effective date of this Agreement, it is anticipated that the following governmental authorities or may have jurisdiction over Project. The City of Miami Beach Building Department • The City of Miami Beach Planning Department • The City of Miami Beach Public Works Department • The City of Miami Beach Historic Preservation Board Notwithstanding the above, the CITY's failure to identify governmental authorities that may have jurisdiction over Project shall not relieve the ARTIST from the responsibility to procure all requisite perm its. SITE PREPARATION: The CITY shall at all events be solely responsible for all expenses, labor and equipment and other costs required to prepare the Site for installation and display of the Project, including landscaping, footings, power/electricity, public access (pathways, sidewalks, etc.), public security, and lighting. -18- EXHIBIT A-1 ARCHITECT'S SCOPE OF SERVICES ARCHITECT shall provide the following services to the CITY with regard to the PROJECT: DESIGN I ENGINEERING COORDINATION Coordinate the integration of the artwork into the Collins Park Project with the ARTIST including the redesign of the Collins Park Project proposed design features, landscaping lighting, and site grading around the artwork, as applicable. Coordinate the integration of the artwork into the Collins Park Project construction documents, as applicable. Provide schedule updates to the ARTIST with regards to the development of the Collins Park Project and review PROJECT progress reports submitted by the ARTIST to assure for a timely artwork integration. PERMIT AND APPROVAL COORDINATION • CITY and ARTIST acknowledge Historic Preservation Board approval was received on August 8, 2006. • Assist the ARTIST in product and material testing related to the PROJECT, as applicable, to obtain artwork approval and/or required permits. • Coordinate and review with the ARTIST all permit and approval submittals pertaining to the artwork. • Coordinate with the ARTIST review of permit documents with all applicable CITY agencies having jurisdiction over the PROJECT. • Review permit comments related to the PROJECT and coordinate response with the ARTIST, as applicable. Final permit approval shall remain the sole responsibility of the ARTIST. REVIEW /APPROVAL OF INVOICES Review all ARTIST invoices related to the design, fabrication, permitting, and installation phases of the PROJECT. ARCHITECT shall review and either approve or reject, within fifteen (15) working days upon receipt of satisfactory invoice from the ARTIST. If rejected, ARCHITECT shall provide ARTIST and CONTRACT ADMINISTRATOR reasons for rejection in writing and return original invoice to the ARTIST. If approved, ARCHITECT shall sign said invoice and shall forward to the CONTRACT ADMINISTRATOR for processing. Additional back-up documentation may be requested by the ARCHITECT to review invoices, as applicable. -19- EXHIBIT A-2 PROJECT SCHEDULE -20- EXHIBIT B COMPENSATION AND SCHEDULE OF PAYMENTS CITY shall pay ARTIST the total sum of Three Hundred and Fifty Nine Thousand Nine Hundred and Twenty Dollars ($359,920.00) for the Work contemplated in this Agreement, which sum shall represent the total compensation to ARTIST for the Project. No amount shall be paid to ARTIST for reimbursable expenses. ARTIST will be paid in accordance with the foregoing specified installments, upon submission of satisfactory invoices and documentation substantiating satisfactory completion of the portion of the Work for which payment is requested, and upon CONTRACT ADMINISTRATOR'S and/or ARCHITECT'S acceptance of said portion of the Work as applicable. Payments to ARTIST shall be made for Work satisfactorily completed in accordance with the progress toward completion of the Project based on the below schedule: 1. Seventeen Thousand Nine Hundred and Ninety Six Dollars ($17,996.00) (which is approximately 5% of the fixed fee) - to be paid upon the signing of the contract and the development of the work plan which will include atime-line and Scope of Work. 2. Fifty Three Thousand Nine Hundred and Eighty Eight Dollars ($53,988.00) (which is approximately 15% of the fixed fee) - to be paid upon acceptance by the CONTRACT ADMINISTRATOR and ARCHITECT of all design/development including pre-engineering and permitting (design development), and specifically: testing of materials, digital design; engineering structure and foundation; and construction drawings for fabrication, as further provided in the Scope of Work. 3. Fifty Three Thousand Nine Hundred and Eighty Eight Dollars ($53,988.00) (which is approximately 15% of the fixed) - to be paid upon submission and approval by the CONTRACT ADMINISTRATOR of contract signing with the fabricators. 4. Eighty Nine Thousand Nine Hundred and Eighty Dollars ($89,980.00) (which is approximately 25% of the fixed fee) - to be paid upon submission to and approval by the CONTRACT ADMINISTRATOR for 50% completion of the fabrication which will include the milling of high density styrofoam molds, casting colored fiberglass, rolling Corten steel, cutting steel to fit the contours of the fiberglass, fabricate fasteners to attach fiberglass to the steel, fabricate fasteners to bolt the steel together and to the concrete slab. 5. Eighty Nine Thousand Nine Hundred and Eighty Dollars ($89,980.00) (which is approximately 25% of the fixed fee) - to be paid upon submission to and approval by the CONTRACT ADMINISTRATOR for 100% completion of the fabrication which will include the milling of high density Styrofoam molds, casting colored fberglass, rolling Corten steel, cutting steel to fit the contours of the fberglass, fabricate fasteners to attach fiberglass to the steel, fabricate fasteners to bolt the steel together and to the concrete slab. 6. Thirty Five Thousand Nine Hundred and Ninety Two Dollars ($35,992.00) (which is approximately 10% of the fixed fee) - be paid for Site visit, Site preparation, shipping materials to Site, and installation of artwork. At CONTRACT ADMINSISTRATOR'S sole option, CONTRACT ADMINISTRATOR may deem that a physical inspection of the artwork is warranted prior to payment 7. Seventeen Thousand Nine Hundred and Ninety Six Dollars ($17,996.00) (which is approximately 5% of the fixed fee) - to be paid upon submission to and approval by the CONTRACT ADMINISTRATOR of Photo Documentation as outlined in Section 2.4 of this AGREEMENT. -21- Catalog # EXHIBIT C CITY OF MIAMI BEACH ART IN PUBLIC PLACES CATALOGING FORM 1. Artist Information 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, a-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: D: 2. Image with frame (if any): H: W: D: D. Frame Description: E. Inscription marks: F. In case of portable and multiple artwork, note on artist preference for display (ex: sequential series, installation height, spacing, etc...): 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 -22- 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, a-mail, web site): E. Fabrication method (attach diagrams or drawings): F. ArchitecUEngineer (name, address, telephone, fax, e-mail): IV. Installation A. Installation executed by (name, address, phone, fax, a-mail, website): B. Installation method (attach diagram of substructure, footings): C. Date of Installation: V. 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: VI. Maintenance (attach schedule of maintenance and replacement instructions for specific items: marble blocks, pin connection and any other supporting structure as applicable) A. Short-term: B. Long-term: C. Note desired appearance of the artwork: VII: Digital copies for use in repair of sound art and graphic reproduction: Signature Date -23-