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HomeMy WebLinkAboutCity of Tamarac Resolution R-2021-113Temp. Reso. #13680 September 9, 2021 Page 1 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2021 - d' A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, APPROVING AND AUTHORIZING ARTIST MICHAEL PARKER DESIGN AND THE EXECUTION OF AN AGREEMENT BETWEEN THE CITY OF TAMARAC AND LOADWICK PARKER ENTERPRISES, LLC, ATTACHED HERETO AS EXHIBIT "A" AND INCORPORATED HEREIN, TO PROVIDE FOR THE FABRICATION AND INSTALLATION OF A SOCIAL JUSTICE ARTWORK AT THE TAMARAC VILLAGE PARK LOCATED AT 9090 N.W. 57TH STREET, TAMARAC; PROVIDING FOR CONFLICTS PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Tamarac desires to encourage and promote public art within the City; and WHEREAS, the City is infusing public art into the Tamarac Village Park with the creation and installation of artistic portraits to be installed on a proposed wall at Tamarac Village; and WHEREAS, on September 9, 2021, The City Commission gained consensus on an overall conceptual design created by Artist Michael Parker for the proposed wall at the Tamarac Village Park; and WHEREAS, Artist Michael Parker has agreed to a contract value, not to exceed $100,000 to engage the community, fabricate and install artistic portraits on the proposed wall at the Tamarac Village Park; and WHEREAS, the Director of Community Development and the Public Art Committee recommend that the City Commission approve the Agreement with Loadwick Parker Enterprise, LLC and authorize the appropriate City Officials to execute same with Artist Michael Parker; and Temp. Reso. #13680 September 9, 2021 Page 2 WHEREAS, the City Commission of the City of Tamarac, Florida, deems it to be in the best interest of the citizens and residents of the City of Tamarac to approve and authorize the execution of the Agreement with Loadwick Parker Enterprise, LLC, attached hereto as Exhibit "A" and incorporated herein, for a contract price of $100,000.00; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA- SECTION 1: The foregoing "WHEREAS" clauses are HEREBY ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution upon adoption hereof; all exhibits referenced and attached hereto are incorporated herein and made a specific part of this resolution. SECTION 2: The Agreement is hereby approved, and the appropriate City officials are authorized to execute the Agreement with Loadwick Parker Enterprise, LLC for a contract price of $100,000.00 copy of said Agreement is attached hereto as Exhibit "A". SECTION 3: All Resolutions or parts of Resolutions in conflict herewith are hereby repealed to the extent of such conflict. SECTION 4: If any clause, section, other part or application of this Resolution is held by any court of competent jurisdiction to be unconstitutional or invalid, in part or application, it shall not affect the validity of the remaining portions or applications of this Resolution. Temp. Reso. #13680 September 9, 2021 Page 3 SECTION 5: This Resolution shall become effective immediately upon its passage and adoption. PASSED, ADOPTED AND APPROVED this - L)-- day of'-- - -- . , 2021. . J ICHELLE J. G3 MEZ, MAYOR ATTEST: Y J NNIFER OHNSO CMC CTY CLE K --- RECORD OF COMMISSION VOTE: MAYOR GOMEZ DIST 1: COMM. BOLTON DIST 2: COMM. GELIN�T DIST 3: V/M VILLALOBOS 6S DIST 4: COMM. PLACKO c I HEREBY CERTIFY that I have approved this RESOLUTION as to fr, TAMARAC The City For Your Life City of Tamarac Purchasing & Contracts Division AGREEMENT BETWEEN THE CITY OF TAMARAC AND LOADWICK PARKER ENTERPRISE, LLC THIS AGREEMENT is made and entered into this -0 day of — 2021, by and between the City of Tamarac, a municipal corporation with principal offices located at 7525 N.W. 88th Ave., Tamarac, FL 33321 (the "City") and Loadwick Parker Enterprise, LLC, a Florida Limited Liability Corporation with principal offices located at 911 Ornelda St. SW, Ruskin, FL 33570 referred to herein as (Artist) to provide for an a Social Justice Public Art Wall Mural to be located at the Tamarac Village at 9090 N.W. 57fh Street , Tamarac FL 33321. Now therefore, in consideration of the mutual covenants hereinafter set forth, the City and Consultant agree as follows: 1) The Contract Documents The contract documents shall consist of this Agreement, and Artists proposal titled "Memorial Wall Proposal", received by City on August 20, 2021, incorporated herein by reference; and all modifications issued after execution of this Agreement. These documents form the Agreement, and all are as fully a part of the Agreement as if attached to this Agreement or repeated therein. In the event of a conflict between this document and any other contract documents, this Agreement shall prevail followed in precedence by this Agreement, followed in order by Artist's response to Call for Artist. 2) The Work 2.1. The Artist shall perform the following Scope of Work under this Agreement as set forth below: 2.1.1 As used in this Agreement, unless the context otherwise requires: "Work" means the work of art consisting of creation and / or installation of a Social Justice Public Art Wall Mural placed at this location. The mural shall involve community engagement and research about social justice issues and prominent people involved throughout history for the fight for social justice. 2.1.2 The artwork shall be durable and require minimal ongoing maintenance. South Florida has a sub -tropical climate and is hot and humid with an intense sun and seasonal heavy rain. Problems with fading should be avoided. Artist to provide a list of materials to be used prior to commencing work on the project. 2.1.3 The Artist and/or its authorized agents and representatives shall TAMARAC The City For Your Life perform all services and furnish all supplies, material and equipment as necessary for the design and fabrication of the Work by the Artist and its transportation and delivery, and installation at the Site consistent with the final Design Proposal as approved by the Owner, including but not limited to for the required insurance coverages, supplies, materials, small tools, and equipment. 2.1.4 Meetings and Marketing: The Artist shall be responsible for the following related to meetings and marketing requirements: 2.1.4.1 Conduct one (1) public lecture at a venue to be determined in the City of Tamarac. 2.1.4.2 Be available for a minimum of three (3) meetings with the Public Art Committee or the City Commission to discuss aspects of the artwork. Such meetings may be attended in person or virtually. 2.1.4.3 Artist to provide professional photos of the sculpture for publication and marketing purposes. 2.1.5 The Artist shall determine the artistic expression, scope, design, color, material, and texture of the Work as set forth in the Design Proposal subject to review and written acceptance by the Owner on a timely basis as set forth in this Agreement. The size shall be determined by City and Artist prior of commencement of work. 2.1.6 The Artist shall at the Artist's sole expense obtain any and all required licenses, permits and approvals required with respect to the fabrication and its obligations for installation of the finished Work at the Site. 2.1.7 The City shall provide the Artist with copies of all pertinent information relating to any and all applicable state, county or city ordinances, statutes, codes, regulations, and/or requirements referenced in this Agreement on a timely basis as may be required. 2.1.8 It is understood and agreed that immediately upon execution of this Agreement, the City shall appoint in writing an individual to serve as the City's authorized representative for purposes of administering this Agreement, and that the City's authorized representative shall be the primary contact for such purposes. It is expressly agreed that the Artist also may discuss the Work or its requirements with various departments of the City but any approvals required under this Agreement must be obtained in writing from the City or its authorized representative. Email constitutes writing for such purposes. TAMARAC The City For Your Liif j„ of T- 2.1.9 Artist shall appoint an authorized representative for administering the Agreement on behalf of the Artist and shall be the City's primary contact for obtaining any and all necessary approvals from the Artist. All approvals required must be authorized in writing by the Artist or its authorized representative. Email constitutes writing for such purposes. 2.1.10 Address of Artwork: The Artwork will be located at the Tamarac Village site located at 9090 NW 57th Street, Tamarac, FL 33321. 2.2 Commencement of Work & Project Schedule 2.2.1 Upon execution of this Agreement and issuance of a written Notice to Proceed by City, which shall be issued upon approval and acceptance of the final Design Proposal by the City, consistent with the requirements of this Agreement, and upon the Artist's receipt of the first installment payment from the City in accordance with this Agreement. 2.2.2 Project Work Schedule: Work shall be completed within 1 year from the date that a Notice to Proceed is issued. 2.3 Fabrication 2.3.1 The Artist shall complete the design, fabrication, transportation and installation of the Work in conformity with the final Design Proposal as approved by the City. 2.3.2 Design development and modifications with drawings and/or models sufficient to secure the approval of the Public Art Committee and the City Commission. 2.3.3 Any material changes proposed by the Artist in the scope, design, color, size, material or texture of the Work as depicted in the Design Proposal shall be presented to the City for approval in writing prior to implementation. A change shall be deemed "material" if it alters the form, fit or function of the Work. Any such change shall be evidenced by the execution of a written amendment or change order to this Agreement signed by both parties. 2.3.4 Once the Work has been fabricated, the Artist shall submit a report to the City, accompanied by photographs, slides, or other acceptable documentation substantiating that the fabrication of the Work has been completed in accordance with the Design Proposal. TAMARAC The City For Your Life City of Tamarac Purchasing & Contracts Division 2.4 Installation 2.4.1 The Artist is responsible for the transportation, delivery, off -truck loading of the artwork at the designated site, and installation of the Work. 2.4.2 The Artist shall make arrangements for access to the Site for delivery (if applicable) and installation of the Work with the City or its authorized representative. 2.4.3 The Artist shall be responsible for all expenses, labor and equipment incurred in connection with delivery of the Work and for Site preparation and installation of the Work. 2.4.4 The Artist shall exercise commercially reasonable efforts to limit installation operations to the Site unless otherwise approved by the City or its authorized representative. 2.4.5 Artist shall utilize commercially acceptable methods to maintain and anchor the artwork and the work site during installation in a safe and secure manner, in order to protect against injury and vandalism. In the event of a predicted storm event, Artist shall take all necessary precautions to remove any loose materials at the job site within a period of twenty-four (24) hours prior to any such predicted storm event. 2.4.6 The Artist shall insure that the Site is clean, free of dust, construction debris, and trash during installation, and atothertimes when directed by the City. At all times while finish work is being accomplished, the Artist shall insure that the Site is clean, free of dust, construction debris and trash. Directly upon completion of the Work, the Artist shall remove from the Site all of their respective equipment and any waste materials not previously disposed of, leaving the Site clean and ready for the City's final inspection. 2.4.7 Delivery and installation of the Work shall be in conformance with all applicable federal, state, county, and municipal laws, including any applicable health, safety, and fire regulations. 2.5 Post -Installation 2.5.1 Except as set forth below, the risk of destruction or damage to the Work or any part thereof shall be borne by the Artist until written acceptance of the Work. Accordingly, except as set forth herein, the Artist shall at its sole cost and expense, repair and restore damage to any portion of the Work until written acceptance of the Work by the City. Notwithstanding the foregoing, after delivery of the Work to the Site and during installation and until final acceptance of the Work by the City as installed, under no circumstances shall the Artist be I" responsible for the cost of repair for any damage caused by job -site contractors or subcontractors hired by the City or otherwise not under the Artist's contractual control or supervision or in the event of vandalism or natural disasters resulting in damage to the Work or at the Site. 2.5.2 Upon installation of the Work, the Artist shall provide and submit all information on the Work as may be requested by the City for its files, including but not limited to technical and maintenance information including any "As Built" drawings, photographs, plans, all required warranties as may be applicable, for use in maintaining and repairing the Work, information regarding copyright of the Work by the Artist, updated biographical information, and a statement regarding the Work. 2.6 Artist's Representations to the City 2.6.1 The Artist represents and warrants to the City that the fabrication and installation of the Work will be performed in a workmanlike manner and that the Work will be free of defects in workmanship or materials consistent with the final Design Proposal and plans approved by the City and that the Artist will, at the Artist's own expense, remedy any defects due to faulty workmanship or materials that arise within a period of three years from the Completion Date and the date the Work is finally accepted by the City or five days after the Completion Date, whichever shall first occur. Any and all such repair shall be completed by the Artist in a proper, workmanlike manner consistent with the Technical and Maintenance Record. This warranty does not apply to damage to the Work that may be caused by hurricane or high winds that result in the Work being struck by matter or materials. 2.6.2 Warranties provided to the Artist by the sub -contractors, if any, shall be for at least one year from the date of final acceptance by the City. All warranties related to the Work performed by sub -contractors under this Agreement are hereby incorporated by reference and are considered to define the extent and limitations of warranties extended by the Artist to the City. 2.6.3 The Artist represents and warrants to the City that the Work is solely the result of the artistic efforts of the Artist and that it will be installed free and clear of any liens, claims or other encumbrances of any type from any source whatsoever. 2.6.4 The personal skill, judgment and creativity of the Artist are essential elements of this Agreement. Therefore, although the parties recognize that the Artist may employ qualified personnel to work under the Artist's supervision, the Artist shall not assign, transfer or TAMARAC The Cit £ Ot Y(7L11' Life subcontract the creative and artistic portions of the Work to a person other than the Artist without the prior written consent of the City's authorized representative. 2.6.5 The Artist represents and warrants to the City that the Work will be a unique placement and the artistic expressions included in the Work do not infringe upon any copyright. The Artist will not execute or authorize another to execute a duplicate Work consisting of a mural of the exact same design and dimensions as the Work for placement anywhere in the State of Florida. For the purposes of this warranty, if the dimensions of another artwork exceed 75% of the dimensions of the commissioned Work, the other artwork shall be deemed to be of the same dimensions as the commissioned Work. This warranty shall continue in effect for a period consisting of the life of the Artist plus 50 years and shall be binding on the Artist's heirs and assigns. 2.6.6 The Artist agrees that the Artist or other's acting on behalf of the Artist will not make reference to or reproduce the Work, or any portion thereof, in a way which reflects discredit on the Owner or the Work. 2.7 City's Responsibilities 2.7.1 Upon request by the Artist, the City shall furnish the Artist, at no cost to the Artist, the following information or services, provided however that the City does not guarantee the accuracy of information provided and assumes no liability therefore: As applicable to the project, one (1) copy of all available data pertinent to the Work, and information relative to code requirements, policies, standards, criteria, and studies relating to the Work. However, the Artist shall be responsible for searching the records and requesting the information required. 2.7.2 The City shall promptly examine all materials and information submitted by the Artist to the City for approval and acceptance and shall take all actions and render all decisions promptly to avoid unreasonable delay in the progress and acceptance of the Design Proposal, and the Artist's Work. The City shall keep the Artist advised concerning the progress of the City's review of any and all materials and information submitted by the Artist to the City and of the Work. Response by the City to the Artist's written request for decisions shall be made as soon as possible but in any event within the timeframes mandated by this Agreement. 2.7.3 The City shall pay the Artist on a timely basis in accordance with the Local Government Prompt Payment Act, Section 218.70, Fla. Stat, TAMARAC 4 'rtie city For Yow L i , et. seq, and the terms and conditions of this Agreement and shall not modify, repair or use the Work or the Artist's name in any manner that reflects discredit on the Work or on the name of the Artist or on the reputation of the Artist. 2.7.4 In view of the parties' intention that the Work shall constitute the artistic expression of the Artist and that all right, title and interest in and to any and all intellectual property associated with the Work shall not make and shall not permit any third party to make, any additional, exact duplicate two or three-dimensional reproductions of the final Work, including but not limited to any sculptures, drawings, paintings, photographs or other images except with the written permission of the Artist. Notwithstanding the foregoing, the City may make and use two-dimensional reproductions of the Work with proper attribution to the Artist and the Artist for non-commercial publicity purposes to promote the Work as set forth herein. 2.8 Repair and Restoration Except as otherwise set forth in this Agreement, maintenance of the Work after installation of the Work at the Site and the City's written acceptance of the Work shall be the responsibility of the City. The City shall maintain the Work and/or make minor or emergency repairs without the Artist's approval or consultation, provided such work is performed in accordance with recognized principles of conservation as determined by the Artist. It will be policy of the City to consult with the Artist regarding repairs and restoration which are undertaken during the Artist's lifetime when that is practicable only when such work does not comply with the maintenance guidelines provided by the Artist. To facilitate consultation, the Artist will notify the City of any change in the Artist's permanent address. If the Artist is unable or unwilling to perform any necessary repairs or restoration, the City will cause to have such work performed at the City's own expense in accordance with the Artist's specifications for maintenance and repair contained in the Technical and Mechanical Record" to be provided by Artist to City prior to final completion of the project. 2.9 Removal or Restoration Notwithstanding any provision of law, the parties agree that removal, destruction or relocation of the Work may occur. While it is the City's intent to permanently retain and publicly display the Work it has acquired through the Public Art program, circumstances may arise that would make it prudent for the City to remove the Work from public display. The Artist hereby acknowledges that the Work when installed, will be incorporated within and made a part of the Site in such a way that removing the Work from the Site, or destruction or modification of "Site" may cause the destruction, distortion or mutilation, of the Work. The Artist hereby acknowledges that the Work, TAMARAC The City For Vout t_ife when installed, will be the property of the City. The Artist therefore agrees that the City shall have absolute right incidental to its ownership of the Site and the Work to remove, relocate, replace, transport, transfer, sell, or store the Work, (such actions being referred to herein as "Removal"), or to destroy, (such actions being referred to herein as "Destructions"), the Work at such times as the City shall deem necessary in order to exercise its powers and responsibilities with respect to the Site. The City shall notify the Artist in writing no less than 90 days in advance of such removal. In the event of any damage whatsoever to the Work, the Artist reserves the right to withdraw attribution of the Work to the Artist. 2.10 Public Hazard In the event that the Owner determines that the Work presents an imminent hazard to the public, the City may authorize the removal of the Work without approval of the Artist. The Artist shall be notified within thirty (30) days of such action, and the City shall then consider options for the final disposition, repair, reinstallation, maintenance or deaccession of the Work. In the event of any damage whatsoever to the Work or deaccession of the Work, the Artist reserves the right to withdraw attribution of the Work to the Artist. 2.11 Traffic Control and Working Hours Pricing provided by Artist under this Agreement shall include all costs relating to the maintenance of pedestrian traffic during installation including any and all safety equipment necessary, including but not limited to barricades, signage, traffic markings, arrow boards, etc. 3) Intellectual Property Rights and Ownership 3.1 Unless otherwise expressly agreed to in writing by the City, ownership of all art acquired through expending funds in the public art fund shall be vested in the City, which shall obtain title to each work of art. Additionally, all Engineering Drawings, photographs, shop drawings, plans, materials and specifications shall become the property of the City upon completion of the project, and shall be delivered to City prior to completion of the Agreement. Artist shall provide a waiver of rights. Title to the Work shall pass to the City upon written notice to the Artist of final acceptance of the Work after installation at the Site. 3.2 It is expressly understood and agreed that the Artist retains: (1) all right, title and interest in all intellectual property associated with the Work, including but not limited to all rights to the design of the Work, all rights to all copyrights with respect to the Work under the Copyright Act of 1976, 17 U.S.C. & 101, et seq., as amended by the Visual Artists Rights Act of 1990, and any successor act, and all moral rights; and (3) all rights expressly granted in this Agreement. TAMARAC The City For Your Life City of Tamarac Purchasing & Contracts Division 3.3 The Artist hereby grants the City the sole and exclusive right to display the Work, and two-dimensional reproductions of the Work, and upon the prior consent of the Artist, which consent shall not be unreasonably withheld, to loan the Work and such reproductions to others with authority to display it publicly with proper attribution to the Artist. Except for those rights retained as provided herein, the Artist agrees that the Artist shall not undertake any public display of the Work in a three dimensional form. 3.4 With the Artist's prior, written consent, the Artist hereby authorizes the City to make, and to authorize the making of, photographs and other two- dimensional reproductions of the Work for educational, public relations, arts promotional, non-commercial purposes. For the purposes of this Agreement, the following are among those deemed to be reproductions for non-commercial purposes: brochures and pamphlets pertaining to the City; reproduction in exhibition catalogues, books, slides, photographs and in news sections of newspapers; in general books and magazines not primarily devoted to art but of an educational nature; electronic media and television from stations operated for educational purposes. On any and all such reproductions, the City shall place a copyright notice in the form and manner required to protect the copyright in the Work under the United States copyright law, the Berne Convention and any and all copyright international conventions as may be enacted and/or amended from time to time. 3.5 All references to the Work and all reproductions of the Work shall credit the Work to the Artist unless the Artist makes a specific written request to not include the Artist as part of the credit. 3.6 The Artist agrees that all formal references to the Work and noncommercial reproductions of the Work under the Artist's control shall include the following credit line: "A Public Art Commissioned for the City of Tamarac, Florida." 3.7 The Artist also shall be available at such time or times as may be agreed between the City and the Artist to attend inauguration or presentation ceremonies relating to the final installation of the Work and the transfer of title to the Work to the City. The City shall use its best efforts to arrange for publicity for the completed Work in such art publications and otherwise as may be determined between the City and the Artist as soon as practicable following installation. 3.8 The Artist may, as part of this Agreement, be requested by the City with reasonable advance notice to discuss the Work with the general public and/or press/media representatives in special meetings scheduled for this purpose. Scheduling of all such requests shall take into account the Artist's schedules and commitments and may occur as agreed by the parties in writing. The Artist shall be entitled to be reimbursed by the City for travel TAMARAC The City For Your Life and expenses for such events in accordance with the City's standard travel policies and procedures. In addition, the Artist hereby consents to allow the City and/or its agents to photograph, record or videotape the Artist relating to the performance of the Artwork. 4) Contract Sum AND Funding 4.1 The City agrees to pay Artist a fixed sum not to exceed One Hundred Thousand dollars and no cents ($100,000) for work completed under this Agreement which shall include Artwork cost consisting of design development, consultation, professional fees, labor, materials, fabrication and Installation. 5) Payments Payment shall be paid in the following installments, expressed as percentages of the fixed price, each installment to represent full and final payment for all services and material provided to payment thereof. 5.1 25% ($25,000.00) due upon Contract Signing and Notice to Proceed as approved by the City's Administrative Agent, and upon the Artist's submission of a properly completed invoice to the City. 5.2 25% ($25,000.00) due upon 100% of completed design as approved by the City's Administrative Agent subject to the Artist's submission to the City of proof of completion of this task, and upon the Artist's submission of a properly completed invoice to the City. 5.3 25% ($25,000,00) due upon 50% of completed fabrication as approved by the City's Administrative Agent subject to the Artist's submission to the City of proof of completion of this task, and upon the Artist's submission of a properly completed invoice to the City. 5.4 15% ($15,000,00) due upon 100% of completed fabrication as approved by the City's Administrative Agent subject to the Artist's submission to the City of proof of completion of this task, and upon the Artist's submission of a properly completed invoice to the City. 5.5 10% ($10,000,00) due within 15 days of acceptance of installed work as approved by the City's Administrative Agent subject to the Artist's submission to the City of proof of completion of this task, and upon the Artist's submission of a properly completed invoice to the City. 5.6 The City reserves the right to review and inspect all work incorporated into the project, and shall only pay for work approved by the City. This provision shall be subject to any additions and deductions by subsequent change order provided in the contract documents. All payments shall be governed by the Local Government Prompt Payment Act, F.S., Part VI I, Chapter 218. TAMARAC The City For Your Life ^rt; of Tamarac Put -chasing & Contracts Division 6) Independent Contractor 6.1 This Agreement does not create an employee/employer relationship between the Parties. It is the intent of the Parties that the Artist is an independent contractor under this Agreement and not the City's employee for any purposes, including but not limited to, the application of the Fair Labor Standards Act minimum wage and overtime payments, Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, the State Worker's Compensation Act, and the State Unemployment Insurance law. The Artist shall retain sole and absolute discretion in the judgment of the manner and means of carrying out Artist's activities and responsibilities hereunder provided, further that administrative procedures applicable to services rendered under this Agreement shall be those of Artist, which policies of Artist shall not conflict with City, State, or United States policies, rules or regulations relating to the use of Artist's funds provided for herein. The Artist agrees that it is a separate and independent enterprise from the City, that it had full opportunity to find other business, that it has made its own investment in its business, and that it will utilize a high level of skill necessary to perform the work. This Agreement shall not be construed as creating any joint employment relationship between the Artist and the City and the City will not be liable for any obligation incurred by Artist, including but not limited to unpaid minimum wages and/or overtime premiums. 6.2 The Artist, it's employees, subcontractors, volunteers and agents shall be and remain independent contractors and not agents or employees of CITY with respect to the acts and services performed by and under the terms of this Agreement. This Agreement shall not in any way be construed to create an employer/employee relationship, a partnership association, joint venture or undertaking between the parties. 6.3 Neither the Artist nor any of its employees, subcontractors, volunteers or agents shall receive or be entitled to any benefits afforded to CITY employees. 6.4 The Artist acknowledges that they: i) maintain a separate business with their own work facility, truck, equipment, materials, or similar accommodations; ii) hold or have applied for a federal employer identification number, unless they are a sole proprietor who is not required to obtain a federal employer identification number under state or federal regulations; iii) perform work or are available to perform work for any entity in addition to or besides the CITY at their own election without the necessity of completing an employment application or process; receive compensation for work or services rendered on a competitive bid basis or completion of a task or a set of tasks as defined by this contractual agreement. 7) TAMARAC The City For Your Life rrrrhasing & Contracts Division Insurance and Indemnification 7.1 Artist's & Installation Firm's Insurance Prior to commencement of any work pursuant to this Agreement, both the Artist and any Installation firm subcontracted by the Artist shall obtain at Artist's / Sub- contractor's expense all necessary insurance in such form and amount as required by the City's Risk & Safety Officer before beginning work under this Agreement. Artist shall maintain such insurance in full force and effect during the life of this Agreement. Artist shall provide to the City's Risk & Safety Officer certificates of all insurance required under this section prior to beginning any work under this Agreement. Artist shall indemnify and save the City harmless from any damage or injury resulting from the failure of either Artist or any subcontractor to obtain or maintain such insurance. The following are required types and minimum limits of insurance coverage, which the Artist agrees to maintain during the term of this contract: Line of Business/ Coverage Commercial General Liability Including: Limits Occurrence & Aggregate $1,000,000 Premises/Operations Contractual Liability Personal Injury Explosion, Collapse, Underground Hazard Products/Completed Operations Broad Form Property Damage Cross Liability and Severability of Interest Clause Automobile Liability $1,000,000 Workers' Compensation & Statutory Employer's Liability If the Artist has no employees as defined by Florida Statutes and Regulations, the Artist will be required to submit a signed letter so stating, to the City. In addition, Artist shall be responsible for providing a copy of Artist's Certificate of Election to be Exempt from Florida's Workers' Compensation Law from the State of Florida Division of Workers' Compensation. The City reserves the right to require higher limits depending upon the scope of work under this Agreement. Neither Artist nor any subcontractor shall commence work under this contract until they have obtained all insurance required under this section and have supplied the City with evidence of such coverage in the form of an insurance certificate and endorsement. The Artist will ensure that all subcontractors will comply with the TAMARAC 7fu> City V or Yom Life above guidelines and will maintain the necessary coverage throughout the term of this Agreement. Subcontractors shall name the Artist and City as additional insureds; and shall produce appropriate certificates of insurance to be placed on file with the City. All insurance carriers shall be rated at least A-VII per A.M. Best's Key Rating Guide and be licensed to do business in Florida. Policies shall be "Occurrence" form. Each carrier will give the City sixty (60) days notice prior to cancellation. The Artist's liability insurance policies shall be endorsed to add the City of Tamarac as an additional insured. The Installation Sub -contractor (if applicable) shall name the City of Tamarac and the Artist as Additional Insureds. The Artist's Worker's Compensation carrier will provide a Waiver of Subrogation to the City. The Artist shall be responsible for the payment of all deductibles and self -insured retentions. The City may require that the Artist purchase a bond to cover the full amount of the deductible or self -insured retention. If the Artist is to provide professional services under this Agreement, the Artist must provide the City with evidence of Professional Liability insurance with, at a minimum, a limit of $1,000,000 per occurrence and in the aggregate. "Claims -Made" forms are acceptable for Professional Liability insurance. 7.2. Indemnification 7.2.1 The Artist shall indemnify and hold harmless the City their elected and appointed officials, employees, and agents from any and all claims, suits, actions, damages, liability, and expenses (including attorneys' fees) in connection with loss of life, bodily or personal injury, or property damage, including loss of use thereof, directly or indirectly caused by, resulting from, arising out of or occurring in connection with the operations of the Artist or its officers, employees, agents, subcontractors, or independent Contractors, excepting only such loss of life, bodily or personal injury, or property damage solely attributable to the gross negligence or willful misconduct of the City or its elected or appointed officials and employees. The above provisions shall survive the termination of this Agreement and shall pertain to any occurrence during the term of this Agreement, even though the claim may be made after the termination hereof. 7.2.2 Upon completion of all Services, obligations and duties provided for in this Agreement, or in the event of termination of this Agreement for any reason, the terms and conditions of this Article shall survive indefinitely. 7.2.3 The Artist shall pay and/or defend all claims, losses, liens, settlements or judgments of any nature whatsoever in connection with the foregoing indemnifications including, but not limited to, reasonable attorney's fees (including appellate attorney's fees) and costs. TAMARAC The City For Your Life 7.2.4 The City and Artist recognize that various provisions of this Agreement, including but not limited to this Section, provide for indemnification by the Artist and requires a specific consideration be given there for. The Parties therefore agree that the sum of Ten Dollars and 00/100 ($10.00), receipt of which is hereby acknowledged, is the specific consideration for such indemnities, and the providing of such indemnities is deemed to be part of the specifications with respect to the services to be provided by Artist. Furthermore, the City and Artist understand and agree that the covenants and representations relating to this indemnification provision shall serve the term of this Agreement and continue in full force and effect as to the City's and the Artist's responsibility to indemnify. i. City reserves the right to select its own legal counsel to conduct any defense in any such proceeding and all costs and fees associated therewith shall be the responsibility of Artist under the indemnification agreement. ii. Nothing contained herein is intended nor shall be construed to waive City's rights and immunities under the common law or Florida Statutes 768.28, as amended from time to time. 8) Non -Discrimination & Equal Opportunity The Artist is an equal opportunity employer and shall not discriminate against any employee or applicant for employment because of race, color, sex including pregnancy, religion, age, national origin, marital status, political affiliation, familial status, sexual orientation, gender identity and expression, or disability. The Artist will take affirmative action to ensure that employees are treated during employment, without regard to their race, color, sex including pregnancy, religion, age, national origin, marital status, political affiliation, familial status, sexual orientation, gender identity or expression, or disability. Such actions must include, but not be limited to, the following: employment, promotion; demotion or transfer; recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Artist shall agree to post in conspicuous places, available to employees and applicants for employment, appropriate legal notices as required by law. The City is an equal opportunity employer and shall not discriminate against any employee or applicant for employment because of race, color, sex including pregnancy, religion, age, national origin, marital status, political affiliation, familial status, sexual orientation, gender identity and expression, or disability. The City will take affirmative action to ensure that employees are treated during employment, without regard to their race, color, sex including pregnancy, religion, age, national origin, marital status, political affiliation, familial status, sexual orientation, gender identity or expression, or disability. Such actions must include, but not be limited to, the following: employment, promotion; demotion or transfer; recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The City shall agree to post in conspicuous places, available to employees and applicants TAMARAC The cite For Your Life ^,i ,,' r ;'& rnoti.,?n`. 0ivision for employment, appropriate legal notices as required by law. 9) Notice Whenever either party desires or is required under this Agreement to give notice to any other party, it must be given by written notice either delivered in person, sent by U.S. Certified Mail, U.S. Express Mail, air or ground courier services, or by messenger service, as follows: CITY City Manager City of Tamarac 7525 N.W. 88th Avenue Tamarac, FL 33321 With a copy to City Attorney at the following address: Fox Rothschild, LLP One Biscayne Tower 2 South Biscayne Blvd. Suite 2750 Miami, FL 33331 ATTN: John R. Herin Jr., Partner Tel: (305) 442-6544 Fax:(305) 442-6541 iherin(a�foxrothschild.com ARTIST Loadwick Parker Enterprise LLC 911 Ornelda St., SW Ruskin, FL 33570 Attn: Michael Parker 10) Termination 10.1 Termination for Convenience: This Agreement may be terminated by the City for convenience, upon seven (7) days of written notice by the City to the Artist for such termination in which event the Artist shall be paid its compensation for services performed to termination date, including services reasonably related to termination. In the event that the Artist abandons this Agreement or causes it to be terminated, Artist shall indemnify the city against loss pertaining to this termination. 10.2 Default by Artist: In addition to all other remedies available to the City, this Agreement shall be subject to cancellation by the City for cause, should the Artist neglect or fail to perform or observe any of the terms, provisions, TAMARAC The City For Your l nc conditions, or requirements herein contained, if such neglect or failure shall continue for a period of thirty (30) days after receipt by Artist of written notice of such neglect or failure. 10.3 Termination Due to Cancellation of the Project: This Agreement may be terminated by the City if the City Commission fails to fund the cost of this Agreement pursuant to Article 16 "Agreement Subject to Funding" of this Agreement, of if the City Commission fails to approve the art project to create a Social Justice Public Art Wall Mural which this Agreement will support. 11) Public Records 11.1 The City of Tamarac is a public agency subject to Chapter 119, Florida Statutes. The Contractor shall comply with Florida's Public Records Law. Specifically, the Contractor shall: 11.1.1 Keep and maintain public records required by the City in order to perform the service; 11.1.2 Upon request from the City's custodian of public records, provide the public agency with a -copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. 11.1.3 Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the contractor does not transfer the records to the City. 11.1.4 Upon completion of the contract, transfer, at no cost to the City, all public records in possession of the Contractor, or keep and maintain public records required by the City to perform the service. If the Contractor transfers all public records to the City upon completion of the contract, the Artist shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Artist keeps and maintains public records upon completion of the contract, the Artist shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the City, upon request from the City's custodian of public records in a format that is compatible with the information technology systems of the City. 11.2 During the term of the contract, the Artist shall maintain all books, reports and records in accordance with generally accepted accounting practices and standards for records directly related to this contract. The form of all records and reports shall TAMARAC The City For Yot+r Life be subject to the approval of the City's Auditor. The Artist agrees to make available to the City's Auditor, during normal business hours and in Broward, Dade or Palm Beach Counties, all books of account, reports and records relating to this contract. 12) Scrutinized Companies By execution of this Agreement, in accordance with the requirements of F.S. 287- 135 and F.S. 215.473, Contractor certifies that Contractor is not participating in a boycott of Israel. Contractor further certifies that Contractor is not on the Scrutinized Companies that Boycott Israel list, not on the Scrutinized Companies with Activities in Sudan List, and not on the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or has Contractor been engaged in business operations in Syria. Subject to limited exceptions provided in state law, the City will not contract for the provision of goods or services with any scrutinized company referred to above. Submitting a false certification shall be deemed a material breach of contract. The City shall provide notice, in writing, to Contractor of the City's determination concerning the false certification. Contractor shall have five (5) days from receipt of notice to refute the false certification allegation. If such false certification is discovered during the active contract term, Contractor shall have ninety (90) days following receipt of the notice to respond in writing and demonstrate that the determination of false certification was made in error. If Contractor does not demonstrate that the City's determination of false certification was made in error then the City shall have the right to terminate the contract and seek civil remedies pursuant to Section 287.135, Florida Statutes, as amended from time to time. 13) E-Verify As a condition precedent to entering into this Agreement, and in compliance with Section 448.095, Fla. Stat., Contractor and its subcontractors shall, register with and use the E-Verify system to verify work authorization status of all employees hired after January 1, 2021. Contractor shall require each of its subcontractors to provide Contractor with an affidavit stating that the subcontractor does not employ, contract with, or subcontract with an unauthorized alien. Contractor shall maintain a copy of the subcontractor's affidavit as part of and pursuant to the records retention requirements of this Agreement. City, Contractor, or any subcontractor/subconsultant who has a good faith belief that a person or entity with which it is contracting has knowingly violated Section 448.09(1), Fla. Stat. or the provisions of this section shall terminate the contract with the person or entity. City, upon good faith belief that a subcontractor knowingly violated the provisions of this section; but Contractor otherwise complied, shall promptly notify Contractor and Contractor shall immediately terminate the contract with the subcontractor. An agreement or contract terminated under the provisions of this section is not a breach of contract and may not be considered such. Any agreement or contract termination under the provisions of this section may be challenged pursuant to Section 448.095(2)(d), Fla. Stat. Contractor acknowledges that upon termination of this Agreement by the City for a violation of this section by Contractor, Contractor may not be awarded a public contract for at least one (1) year. Contractor further TAMARAC N.,•hff c acknowledges that Contractor is liable for any additional costs incurred by the City as a result of termination of any contract for a violation of this section. Contractor or subcontractor shall insert in any subcontracts the clauses set forth in this section; requiring the subcontractors to include these clauses in any lower tier subcontracts. Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in this section. 14) Uncontrollable Forces 14.1 Neither the City nor Artist shall be considered to be in default of this Agreement if delays in or failure of performance shall be due to Uncontrollable Forces, the effect of which, by the exercise of reasonable diligence, the non- performing party could not avoid. The term "Uncontrollable Forces" shall mean any event which results in the prevention or delay of performance by a party of its obligations under this Agreement and which is beyond the reasonable control of the nonperforming party. It includes, but is not limited to fire, flood, earthquakes, storms, lightning, epidemic, war, riot, civil disturbance, sabotage, and governmental actions. 14.2 Neither party shall, however, be excused from performance if nonperformance is due to forces, which are preventable, removable, or remediable, and which the nonperforming party could have, with the exercise of reasonable diligence, prevented, removed, or remedied with reasonable dispatch. The nonperforming party shall, within a reasonable time of being prevented or delayed from performance by an uncontrollable force, give written notice to the other party describing the circumstances and uncontrollable forces preventing continued performance of the obligations of this Agreement. 15) Agreement Subject to Funding This agreement shall remain in full force and effect only as long as the expenditures provided for in the Agreement have been appropriated by the City Commission of the City of Tamarac in the annual budget for each fiscal year of this Agreement and is subject to termination based on lack of funding. 16) Venue and Jurisdiction This Agreement shall be governed by the laws of the State of Florida as now and hereafter in force. By execution of this Agreement, Artist agrees to be subject to the jurisdiction of the State of Florida for the express purpose of the resolution of any disputes arising from this Agreement. The venue for actions arising out of this agreement is fixed in Broward County, Florida. 17) Signatory Authority The Artist shall provide the City with copies of requisite documentation evidencing that the signatory for Artist has the authority to enter into this Agreement. 18) Severability; Waiver of Provisions Any provision in this Agreement that is prohibited or unenforceable in any 18 TAMARAC The City For Your Life hasinq & Co; jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction. The non -enforcement of any provision by either party shall not constitute a waiver of that provision nor shall it affect the enforceability of that provision or of the remainder of this Agreement. 19) Merger; Amendment This Agreement constitutes the entire Agreement between the Artist and the City, and negotiations and oral understandings between the parties are merged herein. This Agreement can be supplemented and/or amended only by a written document executed by both the Artist and the City. 20) No Construction Against Drafting Party Each party to this Agreement expressly recognizes that this Agreement results from the negotiation process in which each party was represented by counsel and contributed to the drafting of this Agreement. Given this fact, no legal or other presumptions against the party drafting this Agreement concerning its construction, interpretation or otherwise accrue to the benefit of any party to the Agreement, and each party expressly waives the right to assert such a presumption in any proceedings or disputes connected with, arising out of, or involving this Agreement. 21) PUBLIC RECORDS CUSTODIAN IF THE ARTIST HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, IT IS THE ARTIST'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: CITY CLERK 7525 NW 88TH AVENUE ROOM 101 TAMARAC, FL 33321 (954) 597-3505 CITYCLERK(&-TAMARAC.ORG TAMARAC The City For Your Life IN WITNESS WHEREOF, the parties have made and executed this Agreement on the respective dates under each signature. CITY OF TAMARAC, signing by and through its Mayor and City Manager, and ARTIST through its Manager, duly authorized to execute same. -STAdL1' iED'. 1963 ®s. SEAL .'o ATTEST ///,/ rrGOUkA'-O, '" Je nif r Jo sq , C ity Jerk ate ATTEST: CITY OF TAMARAC V11'f 'I.A ;-7/� Michello J. Gomez Mayor u r1 City Manager rNiG+P`-t� Date: d a� to form and leggl, sufficiency: LOADWICK PARKER ENTERPRISE, LLC Michael Parker, Manager Printed Name of Artist l` / Z Date TAMARAC The City For Your Life r i (',t T r j, :," p 1i Jt, �' ('i�.t , CORPORATE ACKNOWLEDGEMENT 0-1 STATE OF tlgrdA r :SS COUNTY OF 1G( 6or u I HEREBY CERTIFY that on this day, before me, an Officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgments, personally appeared Michael Parker, Manager of Loadwick Parker Enterprise, LLC, a Florida Limited Liability Corporation, to me known to be the person(s) described in and who executed the foregoing instrument and acknowledged before me that he/she executed the same. twk WITNESS my hand and official seal this. day of 4(fq tt , 20 2�. y p°m JEREMY FORER� IS Notary Public, State 3 Florida CommissionA GG 08500 Le I My comm. expires May 7, 2023 1-1 . �01 Signature of Notary Public State of Florida at Large �r Pr!Kt, Type or Stamp Name of Notary Public ❑ /Personally known to me or Produced Identification F10 r) l7 ri ✓Cry (a`ct�$� Type of I.D. Produced @/DID DID take an oath, or NOT take an oath.