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HomeMy WebLinkAboutCity of Tamarac Resolution R-2008-167Temporary Resolution No. 11486 November 10, 2008 Page 1 CITY OF TAMARAC, FLORIDA RESOLUTION NOlf 06iY 16 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, APPROVING THE PUBLIC ART PROPOSAL AND CONCEPT BY JANE DEDECKER TO BE PLACED AT THE TAMARAC COMMUNITY CENTER; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Tamarac is implementing a public art installation at the Tamarac Community Center. WHEREAS, the City of Tamarac issued a National Call to Artists for an artist or artist team to create two (2) permanent original sculptures, incorporated herein by reference and on file in the office of the City Clerk and is incorporated herein as "Exhibit 1 "; and WHEREAS, on July 22, 2008 the Public Art Committee reviewed and evaluated approximately thirty-nine (39) responses to the National Call to Artists for the project; and WHEREAS, on September 16, 2008, the highest three ranked entrants were invited to make presentations to the selection committee to provide additional information and display a maquette of the proposed work; and WHEREAS, the selection committee determined that sculptor, Jane DeDecker best met the needs and requirements of the City, the Artist has been selected to fabricate, deliver and install works of art, to be installed upon the selected location at the Tamarac Community Center; and Temporary Resolution No. 11486 November 10, 2008 Page 2 WHEREAS, the City of Tamarac and the Artist have entered into a contract for Sculptural Installation at the Tamarac Community Center hereto attached as "Exhibit 2"; and 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 the approve the public art concept and proposal by Jane DeDecker to be placed at the Tamarac Community Center. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, THAT: 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 herein and attached hereto are hereby incorporated herein and made a specific part of this Resolution. Section 2. It is hereby found and determined that the approval of the public art concept and proposal by Jane DeDecker will be in the best interests of the City of Tamarac and the residents and businesses located within the described area. Section 3. The City Commission hereby approves the public art concept and proposal by Jane DeDecker to be placed at the Tamarac Community Center and authorizes appropriate members of City staff to take any and all steps necessary to ensure the installation of the art work. Section 4. All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. Temporary Resolution No. 11486 November 10, 2008 Page 3 Section 5. 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. Section 6. This Resolution shall become effective upon adoption. 16 PASSED, ADOPTED, and APPROVED THIS DAY OF /f/`P%r�� ' 2008. ATTEST: MARION SWENSON, CMC CITY CLERK I HEREBY CERTIFY that I Have approved this RESOLUTION as to form. Samuel S. Goren, CITY ATTORNEY ME i �� I✓% 41 r m, MAYOR RECORD OF COMMISSION VOTE: MAYOR FLANSBAUM-TALABISCO DIST 1: COMM BUSHNELL'-- DIST 2: COMM ATKINS-GRA Z- DIST 3: COMM. GLASSER ' DIST 4: COMM. DRESSLER City of Tamarac, Florida SCULPTURAL INSTALLATION AT TAMARAC COMMUNITY CENTER TAMARAC, FLORIDA WORK DESIGN, FABRICATION, & INSTALLATION THIS CONTRACT FOR COMMISSION is made this C�6 day of November, 2008, by and between the City of Tamarac, Florida (hereinafter referred to as "Owner"); and J. K. Designs, Inc. a Colorado Corporation, doing business as the National Sculptors' Guild, 2683 North Taft Avenue, Loveland, Colorado 80538 and Artist, Jane DeDecker (hereinafter collectively called "Artist"). WITNESSETH: WHEREAS, the City of Tamarac is implementing a public art installation at the Tamarac Community Center. WHEREAS, the Artist has been selected to fabricate, deliver and install works of art, hereinafter referred to as the "Work", such Work to be installed upon the selected location at the Tamarac Community Center hereinafter referred to as the "Site". WHEREAS, both parties wish to reasonably promote and maintain the integrity and clarity of the Artist's ideas and statements as represented by the Work; and WHEREAS, the Owner as authorized and empowered to execute contracts for works of art and other enhancements to adorn the Site; and WHEREAS, the Owner desires to enter into an Agreement with the Artist to complete the Work at the Site and the Artist is willing and able to provide such services and such Work under the Agreement; NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and considerations herein contained, and subject to the terms and conditions hereinafter stated, it is agreed by and between the Owner and the Artist as follows- 1 SECTION I -- SERVICES OF THE ARTIST A. General 1. As used in this Agreement, unless the context otherwise requires: "Work" means the work of art as ultimately conceived, designed, fabricated, transported, delivered and installed by the Artist, after consultation with the staff of the Owner. The Work includes all physical components of the complete Work including but not limited to foundations, mounting brackets or devices, and all other miscellaneous components necessary to complete the fabrication and installation of the Work as initially proposed. All costs for additional earthwork or foundations that may be required to achieve an increase in overall height above and beyond the initially proposed Work height shall be the responsibility of the Owner. 2. The Artist shall perform all services and furnish all supplies, material and equipment as necessary for the execution and fabrication of the Work, including but not limited to, payment for all necessary permits, taxes, insurance, supplies, materials, small tools, equipment, artist consultants, and all other items incidental to producing a complete and acceptable Work, and shall, either directly or through qualified sub -consultants, undertake the transportation and installation of the Work at the Site. 3. The Artist shall determine the artistic expression, scope, design, color, size, material, and texture, subject to review and approval by the Owner as set forth in this Agreement. 4. The Artist shall be solely responsible for designing, fabricating, constructing, delivering and installing the Work in compliance with all applicable City, County, State and/or Federal laws, ordinances, statutes, codes, regulations, and/or requirements which affect construction or installation of the Work. 5. The Artist shall comply with all applicable laws, statutes, ordinances, regulations, and administrative requirements including but not limited to safety and engineering regulations and requirements of the Owner, with special attention to requirements for scaffolding. 6. The Artist and all agents and employees shall observe and comply with all prevailing Federal, State and County and City laws, ordinances, regulations and requirements which in any way affect 2 conduct or work required under this Agreement. The Artist shall at the Artist's sole expense obtain all permits, licenses and approvals required (including any seal certifying the structural soundness and safety of the Work which may be required) and shall comply with all laws in connection therewith. 7. It is understood and agreed that the Owner shall appoint an individual to serve as the Owner's authorized representative for the purposes of administering this Agreement and that the Owner's authorized representative shall be the sole contact for administering this Agreement. The Artist may discuss the Work or its requirements with various departments of the Owner, but all specific direction to or requests of the Artist must be authorized by the Owner or its authorized representative. B. Artist's Final Design Proposal 1. At the time of execution of the Agreement, the Artist shall submit a final design proposal, a project schedule, and a cost estimate for the Work, which shall be attached hereto as Exhibit "A", and incorporated herein by reference to the Owner. Prior to inclusion with the Agreement, the final design proposal, project schedule, and cost estimate shall be approved, in writing, by the Owner. Once the Owner approves the final design proposal, project schedule, and cost estimate, the final design proposal, project schedule, and cost estimate may not be amended without the prior written approval of the Owner. C. Purchasing Materials 1. Upon written execution of this Agreement, the Artist shall commence purchasing materials and fabricating the Work. 2. The Artist shall avoid including in the design of the Work and specifications that would require the use of or purchase of materials or finishes known to be hazardous or potentially hazardous. D. Fabrication 1. The Owner or authorized representative shall have access to review the Artist's Work in progress, any access to review the Artist's Work shall be scheduled at a mutually agreeable time. The Artist shall submit to the Owner written progress reports on a monthly basis, no later than the 5t" day of each month during the term of this Agreement in a form acceptable to the Owner. 3 2. The Artist shall complete the design, fabrication, transportation and installation of the Work in conformity with the Proposal and the project schedule as provided in Exhibit "A", which is attached hereto and incorporated herein by reference. 3. The Artist shall present to the Owner in writing for further review and approval any significant changes in the scope, design, color, size, material or texture of the Work. A change shall be deemed material if it alters the form, fit or function of the Work, or modifies its dimensions by more than ten percent (10%). 4. Once the Work has been fabricated, the Artist shall submit a report to the Owner, accompanied by photographs, slides, or other acceptable documentation substantiating that the fabrication of the Work has been completed. The report shall include plans for installation and lighting and a description of any activities requiring coordination with the Owner. E. Delivery and Installation 1. The Artist is responsible for the installation of the Work. 2. The Work shall not be delivered to the Site or installed until the Artist has received written approval from the Owner or an authorized representative that the Work has been completed according to the approved design and that specific installation plans submitted by the Artist have been approved by the Owner. 3. Arrangements for access to the Site for installation must be made through the Owner or authorized representative. The Artist shall provide the Owner with a written list of the workers, vehicles and equipment which will be involved in the installation of the Work at least fifteen (15) days in advance of delivery and installation so that permits can be issued and security and unloading arrangements made. 4. Following delivery of the Work, the Artist shall install the Work at the Site in such a manner as the Owner shall approve and submit all required documentation and information. The Artist shall be responsible for all expenses, labor and equipment for the preparation of the Site and installation of the Work except as outlined in paragraph A.1 above. 5. The Artist shall limit construction operations to the Site unless otherwise approved by the Owner. The Artist shall perform no operations of any nature on, over or across premises except 4 such operations as are specifically authorized in plans or specifications, or as authorized by the Owner. 6. The Artist shall protect adjoining property and nearby buildings, roads and public streets or roads from dust, dirt, rubbish or other nuisance arising out of the Artist's operations or storage practices. 7. The Artist shall clean up the Site at frequent intervals and at other times when directed by the Owner. At all times while finish work is being accomplished, the Site shall be kept clean, free of dust, construction debris and trash. Directly upon completion of the Work, the Artist shall remove from the Site all equipment and any waste materials not previously disposed of, leaving the Site thoroughly clean and ready for the Owner's final inspection. 8. Installation and workers' safety shall be in conformance with all applicable federal, state, county, and municipal laws, including any applicable health, safety, and fire regulations. F. Post -Installation 1. All risk of destruction, or damage to, the Work or any part thereof from any cause whatsoever shall be borne by the Artist until written final acceptance of the Work. The Artist shall, at the Artist's sole expense, rebuild, repair, restore and make good all such damage to any portion of the Work until written final acceptance of the Work by the Owner. However, the Artist shall not be responsible for repairing any damage caused by job -site contractors or subcontractors not under the Artist's contractual control or supervision, or in the event of vandalism or natural disasters at the installation site. 2. The Artist shall provide information on the Work requested by the Owner for its registration files including but not limited to technical and maintenance information in the format provided in attached Exhibits, copyright registration information, updated biographical information, and a statement regarding the Work. 3. The Artist may, as part of this Agreement, be requested by the Owner with reasonable advance notice to discuss the Work with the general public and/or press/media representatives in special meetings scheduled for this purpose. The Artist shall be entitled to be reimbursed by the Owner for travel and expenses for such events, upon the prior written approval by the Owner. N1 4. The Artist shall be available at such time or times as may be agreed between the Owner and the Artist to attend inauguration or presentation ceremonies relating to the transfer of the Work to the Owner. The Owner 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 Owner and the Artist as soon as practicable following installation. SECTION II - PERIOD OF SERVICE A. Section I services shall be completed in accordance with the schedule set forth in Exhibit "A" incorporated herein by reference and made a part of this Agreement if approved by the Owner. B. As requested, the Artist shall make monthly progress reports to the Owner during the term of this Agreement, no later than the 5t" day of each month, and the Artist shall provide the Owner or its staff with access to the Work during reasonable business hours to review the work and progress in completing the Work. C. Upon receipt of a request by the Artist for an extension of time, the Owner shall grant a reasonable extension of time to the Artist in the event that there is a delay on the part of the Owner in performing its obligations under this Agreement or in completing the underlying capital project, or if conditions beyond the Artist's control or Acts of God render timely performance of the Artist's services impossible or unexpectedly burdensome. SECTION III - PAYMENTS TO THE ARTIST For services described under Section I of this Agreement, the Owner shall pay the Artist as follows: A. Eighty Thousand Dollars ($80,000.00) B. All expenses incurred on behalf of the Work shall be paid by the Artist and are included in the basic fee above. Compensation will be paid to the Artist in four (4) installments: INSTALLMENT 1 Installment 1 shall be ten percent (10%) of contract amount. Installment 1 shall be paid by the Owner in consideration of the Artist preparing final design [: drawings; Exhibit "A" to this Agreement, and other related documents. Installment 1 shall be paid to the Artist upon approval of the Agreement by the Owner. Installment 1 is in the amount of Eight Thousand Dollars ($8,000.00). Following approval and execution of the Agreement by the Owner, for payment, the Artist must submit the following documents- 1 . Certification of insurance. 2. Completed W-9 Tax form. INSTALLMENT 2 Installment 2 shall be fifty percent (50%) of the contract amount. Installment 2 shall be paid by the Owner in consideration of the Artist commencing fabrication upon initial acceptance and approval of Exhibit A by the Owner. Installment 2 is in the amount of Forty Thousand Dollars ($40,000.00). For payment of Installment 2, the following must be submitted to the Owner: Complete drawing and specification signed and sealed by certified engineer for Class 'C' Exposure, FBC 2004 - 140MPH Wind Criteria, INSTALLMENT 3 Installment 3 shall be twenty percent (20%) of the contract amount. Installment 3 shall be paid by the Owner upon substantial (75%+) completion of the Work as documented in studio photographs. This would consist of fabrication completion of all major components, prior to final surface finishing; prior to final assembly. Installment 3 is in the amount of Sixteen Thousand Dollars ($16,000.00). For payment of Installment 3, the following must be submitted to the Owner: Photo documentation of fabricated work. List of all components with completion percentages for each. INSTALLMENT 4 Installment 4 shall be twenty percent (20%) of contract amount upon final acceptance of installed Work by the Owner. 7 Installment 4 is in the amount of Sixteen Thousand Dollars ($16,000.00). Prior to payment of Installment 4 Installation of Work must be approved by the Owner. Ok, In addition to final acceptance of the Work by the Owner, the following must be provided to the Owner by the Artist: a. A written certification of the completion and installation of the Work, b. Written bill of sale. c. Technical and maintenance record. (Exhibit F) d. Updated biographical material. e. Artist statement about the Work. Payment of the artist's fee shall be made upon submittal of invoices. However, no more than eighty (80%) percent of the total Agreement amount shall be paid before the work is completed and accepted by the Owner. The Owner shall make payment to the Artist within thirty days of receipt and approval of the applicable invoice, and all related documentation, as provided herein. C. The Artist shall be responsible for all Federal and State income taxes on the amount of this Agreement, as well as any sales, use or privilege tax which might be required. D. The Artist and the Owner agree that no charges or claim for damages shall be made by the Artist for any delays or hindrances during the progress of any portion of the services specified in this Agreement. Such delays or hindrances, if any, shall be compensated for by an extension of time for such reasonable period as may be mutually agreed between the parties. It is understood, however, that permitting the Artist to proceed to complete any services, or any part of them, after the date to which the time of completion may have been extended, shall in no way act as a waiver on the part of the Owner of any of its legal rights herein. SECTION IV -- ARTIST'S REPRESENTATIONS AND WARRANTIES A. The Artist represents and warrants to the Owner 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, including inherent vice, and that the Artist will, at the Artist's own expense, remedy any defects due to faulty workmanship or materials, or to inherent vice, which appear within a period of three years from the date the Work is finally accepted by the Owner. Any and all such repair completed by the Artist shall be consistent with professional conservation standards as determined solely by the Owner. "Inherent vice" refers to a quality within the material or materials which comprise the Work which, either alone or N in combination, results in the tendency of the Work to destroy itself. B. Warranties provided to the Artist by the sub -contractors shall be for no less than one year. All warranties related to the Work performed by sub -contractors are attached to this Agreement and are hereby incorporated by reference and are considered to define the extent and limitations of warranties extended by the Artist to the Owner. C. The Artist represents and warrants to the Owner that the Work will not require maintenance substantially in excess of that described in the maintenance recommendations to be provided by the Artist to the Owner hereunder. D. The Artist represents and warrants to the Owner that the Work will not contain sharp points or edges which the Owner deems a danger to the public and agrees to cooperate in making or permitting adjustments to the Work if necessary to eliminate any hazards which become apparent within one year of the date the Work is finally accepted by the Owner. E. The Artist represents and warrants to the Owner 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. F. 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 subcontract the creative and artistic portions of the Work to another party without the prior written consent of the Owner's authorized representative. G. The Artist represents and warrants to the Owner that the Work will be a unique placement. The sculptures in the Work will be done in limited editions. The sculptures in the Work do not infringe upon any copyright. The Artist will not execute or authorize another to execute another Work, containing the two sculptures, of the same design, dimensions and materials as the Work commissioned pursuant to this Agreement for placement within the State of Florida. For the purposes of this warranty, if the dimensions of another work exceed 75% of the dimensions of the commissioned Work, the other work 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. H. The Artist agrees that the Artist or other's acting on behalf of the ;v� 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. SECTION V - OWNER'S RESPONSIBILITIES A. Upon request by the Artist, the Owner shall furnish the Artist, at no cost to the Artist, the following information or services, provided however that the Owner does not guarantee the accuracy of information provided and assumes no liability therefore: 1. One copy of all available data pertinent to the work, and information relative to policies, standards, criteria, and studies. However, the Artist shall be responsible for searching the records and requesting information required. 2. Examination of materials and information submitted by the Artist and render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of the Artist's Work. the Owner shall keep the Artist advised concerning the progress of the Owner review of the Work. Response to the Artist's written request for decisions shall be made as soon as possible. B. The Owner agrees that it will not use the work or the Artist's name in a way which reflects discredit on the Work or on the name of the Artist or on the reputation of the Artist as an artist. SECTION VI — INSURANCE A. Prior to commencement of any work pursuant to this Agreement, the Artist shall procure and maintain throughout this Agreement, and until Title to the Work passes to the Owner: 1. Worker's compensation and employer's liability insurance with limits of no less than $100,000 each accident. If the Artist has no employees as defined by Florida Statutes and Regulations, and the Artist submits a letter so stating, this requirement may be waived in writing by the Owner. 2. General liability insurance, with limits of not less than $1,000,000 each occurrence, combined single limit bodily injury and property damage, completed operations, contract liability and, if any subcontracted work, independent contractors. 3. Automobile liability insurance, with limits of not less than statutory requirements including coverage for owned, non -owned and hired vehicles, as applicable. lit, B. Insurance policies required under the terms of this Agreement shall be endorsed as follows: 1. In the general liability policy, the Owner shall be named as additional insureds along with its officers, agents and employees. 2. In the general and automobile liability policies, provide that the policies are primary insurance to any other insurance available to the additional insureds, with respect to claims arising out of this Agreement, and that the insurance applies separately to each insured against whom claim is made or suit is brought. 3. In the general liability policy, provide 30 days written notice of cancellation, non -renewal or reduction in coverage. C. Certificates of insurance evidencing worker's compensation (if required), general liability and endorsements set forth above shall be furnished to the Owner upon execution of this Agreement. The certificates of insurance shall name the Owner as an additional insured as provided herein. Upon request certified copies of all policies shall be furnished to the Owner. If any insurance policy is due to expire during the life of this Agreement, the Artist shall provide a Certificate of Renewal evidencing the required insurance coverage to the Owner not less than fifteen (15) calendar days prior to the expiration date. SECTION VII -- GENERAL CONSIDERATIONS A. Records Records of the Artist's expenses pertaining to the Work and records of accounts between the Owner and the Artist shall be kept on a generally recognized accounting basis, and shall be available to the Owner or its authorized representative for audit during normal business hours. B. Alteration in Character of Work The goal of the parties is a Work which represents the creative talents of the Artist and satisfies the specifications of the Owner. The parties recognize that they must consult closely in order to accomplish these goals and that changes in the design may become desirable as the Work is fabricated, under the Artist's personal supervision, in conformity with the approved design, see Exhibit "A". The Work shall not deviate from the approved design unless the change is approved in writing by the Owner or an authorized representative. C. Termination The Owner and the Artist hereby agree to the full performance of 11 the covenants contained herein, except that the Owner reserves the right, at its discretion and without cause, to terminate or abandon the services provided for in this Agreement, or abandon any portion of the project for which services have been performed by the Artist. 1. In the event the Owner shall abandon the service or any part of the services as herein provided, the Owner shall notify the Artist in writing, and immediately after receiving such notice, the Artist shall discontinue advancing the work under this Agreement and proceed to close said operations under the Agreement. 2. Upon such termination or abandonment, the Artist shall deliver to the Owner all work entirely or partially completed, together with all unused materials supplied by the Owner. 3. The Artist shall determine the percentage of work completed and submit such estimate to the Owner for evaluation. the Owner shall have the right to inspect the Artist's work to verify the work completed. 4. The Artist shall receive a fee for the percentage of the work actually completed as compensation in full for services performed to the date of such termination. This fee shall be equal to any project related payments owed to the Artist and to the Artist's subcontractors, and shall be in an amount to be agreed upon mutually by the Artist and the Owner. If there is no mutual agreement, the final determination shall be made in accordance with Section VII, Paragraph O. "Disputes". However, in no event shall the fee ever exceed that set forth in Section III of this document. the Owner shall make this final payment within sixty (60) days after the Artist has delivered the last of the partially completed items. 5. The Artist may obtain termination only if the Owner should substantially fail to perform its responsibilities as provided herein. In the event of termination, all finished or unfinished work relating to the preparation of the Work paid for by the Owner shall become the property of the Owner. 6. The death or incapacity of the Artist shall automatically terminate this Agreement. Neither the Artist nor the Artist's estate shall have any further right to perform hereunder. the Owner shall pay the Artist's estate or the Artist the compensation payable for any services rendered prior to such termination not heretofore paid reduced by the amount of additional costs which shall be incurred 12 by the Owner by reason of such termination. D. Communications All notices, requests, demands and other communications which are required or permitted to be given under this agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, air or courier services, or by messenger as follows: 1. If the Owner, to: City Manager City of Tamarac 7525 N.W. 88 Avenue Tamarac, FL. 33321-2401 With a copy to: Samuel S. Goren, City Attorney 3099 E. Commercial Blvd., Suite 200 Fort Lauderdale, FL 33308 2. If the Artist, to: Jane DeDecker c/o National Sculptors' Guild 2683 North Taft Avenue Loveland, CO 80538 E. Additional Work Additional work, when authorized by the Owner or an authorized representative, shall be compensated for by a fee mutually agreed upon between the Owner and the Artist. F. Ownership of Documents the Owner shall have the right to graphically reproduce the documents produced by the Artist solely for the purposes of publicity or exhibition, provided that such reproduction is credited to the Artist. G. Ownership and Reproduction Rights 1. Title to the Work shall pass to the Owner upon written notice to the Artist of final acceptance. 2. The Artist retains: (1) all rights to the Work under the Copyright Act of 1976, 17 U.S.C. & 101, et seq., as amended by the Visual Artists 13 Rights Act of 1990, and any successor act; and (2) all rights expressly granted in this Agreement. 3. The Artist hereby grants the Owner the exclusive right to display the Work, and two-dimensional reproductions of the Work, and to loan the Work and such reproductions to others with authority to display it publicly. Except for those rights retained pursuant to Paragraphs 4(G) and Paragraph 7(G)(2) of this Agreement, the Artist agrees that the Artist shall not undertake any public display of the Work in a three dimensional form, or any similar public reproduction of the Work within the State of Florida without prior written approval of the Owner. 4. The Artist hereby authorizes the Owner to make, and to authorize the making of, photographs and other two-dimensional reproductions of the Work for educational, public relations, arts promotional and other 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 Owner ; reproduction in exhibition catalogues, books, slides, photographs, postcards, posters, and calendars; in art magazines, art books and art and news sections of newspapers; in general books and magazines not primarily devoted to art but of an educational, historical or critical nature; slides and film strips not intended for a mass audience; electronic media and television from stations operated for educational purposes or on programs for educational purposes from all stations. On any and all such reproductions, the Owner shall place a copyright notice in the form and manner required to protect the copyright in the Work under the United States copyright law. 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. 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." H. Waiver of Rights under 17 U.S.C. §106A(a_ The Artist understands and agrees that, as to the Artist's rights in the Work, the provisions of this Article shall control over the provisions of 17 U.S.C. §106A(a), and shall constitute a waiver by the Artist of any rights in the Work set out in or otherwise granted by 17 U.S.C. §106A(a). 14 Repair and Restoration Maintenance of the Work shall be the responsibility of the Owner. The Owner 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 Owner. It will be policy of the Owner 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 Owner of any change in the Artist's permanent address. If the Artist is unable or unwilling to perform any necessary repairs or restoration, the Owner will cause to have such work performed at the Owner's own expense in accordance with recognized principles of conservation. J. Removal or Relocation Notwithstanding any provision of law, the parties agree that removal, destruction or relocation of the Work may occur. While it is the Owner'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 Owner to remove 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, mutilation, or other modification of the Work. The Artist hereby acknowledges that the Work, when installed, will be the property of the Owner. The Artist therefore agrees that the Owner shall have absolute right incidental to its ownership of the Site and the Work to remove, relocate, replace, transport, transfer, sell, or store, in whole or in part (such actions being referred to herein as "Removal"), or to alter, change, modify, or destroy, (such actions being referred to herein as "Alterations"), the Work at such times as the Owner shall deem necessary in order to exercise its powers and responsibilities with respect to the Site. The Owner shall make a good faith effort to notify the Artist in writing 90 days in advance of such removal. To the extent the uses of the Work under this section violate any rights the Artist may have under the provisions of federal or state law, including without limitation the Visual Artist's Rights Act of 1990, the Artist hereby waives those rights to preservation of the Work provided by those laws, provided, however, that Artist shall retain any right to disclaim authorship of the Work pursuant to and under the conditions set forth in the Visual Artist's Rights Act of 1990. 15 K. Public Hazard In the event that the Owner determines that the Work presents an imminent hazard to the public, the Owner 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 Owner shall then consider options for the final disposition, repair, reinstallation, maintenance or deaccession of the Work. In the event that the Work cannot be removed without being irreparably damaged or destroyed, the Artist hereby agrees to waive any rights the Artist may have under the Visual Artist's Rights Act of 1990, provided, however, that the Artist shall retain any right to disclaim authorship of the Work pursuant to and under the conditions set forth in the Visual Artist's Rights Act of 1990. L. Completeness and Accuracy of the Artist's Work The Artist shall be responsible for the completeness and accuracy of the Artist's work, prepared or completed under the Artist's obligation for work provided under this Agreement. M. Claims Against the Owner 1. The Artist hereby agrees to indemnify and save and hold harmless the Owner, any of its departments, agencies, officers, or employees from all damages, claims or liabilities and expenses including court costs, Attorney's fees and paralegal expenses at both the trial and appellate levels arising out of or resulting in any way from the performance of professional services for the Owner in the Artist's capacity as a consultant, including, but not limited to any claims for copyright, trademark, patent, or intellectual property infringement or unauthorized use of such copyright, trademark, or patent, or other intellectual property right, and caused by any error, omission, or negligent act of the Artist or any person employed by the Artist, or of any others for whose acts the Artist is legally liable. 2. The Artist agrees to indemnify and save and hold harmless the Owner, any jurisdiction or agency issuing permits for any work included in the project, and their respective directors, officers, officials, agents, employees and volunteers (hereinafter referred to as "Indemnitee") from and against any and all claims, demands, actions, liabilities, damages, losses, or expenses (including court costs, attorney's fees, paralegal expenses, and costs of claim processing, investigation and litigation at the trial and appellate levels)(hereinafter collectively referred to as "Claims") for personal injury (including death) or property damage caused, or alleged to W. be caused, in whole or in part, by the negligent or willful acts or omissions of the Artist or of any of the Artist's directors, officers, agents, employees, volunteers, or subcontractors. This indemnity includes any claim or amount arising or recovered under the Workers' Compensation Law or arising out of the failure of the Artist to conform to any federal, state or local law, statute, ordinance, rule, regulation or court decree. It is the specific intention of the parties that the Indemnitee shall, in all instances, except for Claims arising from the negligent or willful acts or omissions of the Indemnitee, be indemnified by the Artist from and against any and all Claims. It is agreed that the Artist will be responsible for primary loss investigation, defense and judgment costs where this indemnification is applicable. 3. In the event that the services of the Artist are integrated into, combined or otherwise coordinated with the services by third parties not within the control of the Artist, the Artist shall not be responsible for such third party services. If any part of the Artist's work depends for proper execution or results upon the work of a third party, the Artist shall, prior to proceeding with the work, report to the Owner any apparent discrepancies or other defects in such other work that renders it unsuitable for proper execution or results. The Artist shall not be responsible for any liability or failure to fulfill the Artist's obligations due to such discrepancies or defects. Failure of the Artist to report a discrepancy or defect shall constitute acceptance of third party work as fit and proper except as to defects that may subsequently become apparent in such third party work. Any costs caused by defective or ill-timed work by others shall not be borne by the Artist. 4. The Artist shall not be responsible for the acts or omissions of the Owner, the Owner 's consultants, any contractors, any subcontractors, any subconsultants, any of the agents or employees, or any other persons, aside from those retained by the Artist, who are performing any of the work related to the artistic services provided for in the terms of this Agreement. 5. 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 Consultant under the indemnification agreement. Nothing contained herein is intended nor shall it be construed to waive City's rights and immunities under the common law or Florida Statute 768.28 as amended from time to time. 17 N. Successors and Assigns The Owner and the Artist shall each bind themselves, their partners, successors, assigns, and legal representatives to the other party to this Agreement and to the partners, successors, assigns, and legal representatives of such other party in respect to all covenants of this Agreement. Neither the Owner nor the Artist shall assign, sublet, or transfer any interest in this Agreement without the written consent of the other. In no event shall any contractual relationship be created between any third party and the Owner. O. Disputes In any dispute arising out of an interpretation of this Agreement or the duties required therein not disposed of by agreement between the Artist and the Owner, the final determination at the administrative level shall be made by the Owner or its authorized representative. P. The Owner's Right of Cancellation All parties hereto acknowledge that this Agreement is subject to cancellation by the Owner. Q. Covenant Against Contingent Fees The Artist represents and warrants to the Owner that no person has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for commission, percentage, brokerage, or contingent fee, and that no member of the Owner I, or any employee of the Owner has any interest, financially or otherwise, in the Artist's business. For breach or violation of this warranty, the Owner shall have the right to annul this Agreement without liability, or at its discretion to deduct from the Agreement price or consideration, the full amount of such commission, percentage, brokerage, or contingent fee. R. Equal Opportunity/Affirmative Action During the performance of the Contract, the Artist she II not discriminate against any employee or applicant for employment bece use of race, color, sex, religion, age, national origin, marital status, political affiliation, familial status, sexual orientation, or disability if qualified. Tie Artist will take affirmative action to ensure that employees ar treated during employment, without regard to their race, color, sex, reli ion, age, national origin, marital status, political affiliation, familial status, exual orientation, W. or disability if qualified. Such actions must include, bu not be limited to, the following: employment, promotion; demotion or tr nsfer; recruitment or recruitment advertising, layoff or termination; rates of Day or other forms of compensation; and selection for training, including ar prenticeship. The Artist shall agree to post in conspicuous places, avail ble to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. The Artist further agrees that he/she will ensure that Sub -contractors, if any, will be made aware of and will comply with this nondiscriirnination clause. S. Independent Contractor This Agreement does not create an employee/em loyer relationship between the Parties. It is the intent of the Parties thi t the Artist is an independent contractor under this Agreement and not th B City's employee for any purposes, including but not limited to, the application of the Fair Labor Standards Act minimum wage and overtime p 3yments, Federal Insurance Contribution Act, the Social Security ct, the Federal Unemployment Tax Act, the provisions of the Internal R venue 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 Art st'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 perfor the work. This Agreement shall not be construed as creating any oint 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." T. Force Maieure If either party shall be delayed or prevented from the performance of any act required under this Agreement by reason of acts of God or other cause beyond the control and without fault of the party (financial inability excepted), performance of that act shall be excused, but only for the period of the delay. The time for performance of the act shall be extended for a period equivalent to the period of delay. 19 U. Immigration Reform and Control Act of 1986 The Artist understands and acknowledges the applicability of the Immigration Reform and Control Act of 1986 to the Artist. The Artist agrees to comply with the Immigration Reform and Control Act of 1986 in performing work under this Agreement and to permit the Owner to verify such compliance. V. Non -Waiver Provision Any provision in this Agreement that is prohibited or unenforceable in any 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 provisi n 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. W. Jurisdiction It is mutually understood and agreed that this Agreement shall be governed by the laws of the State of Florida, both as to interpretation and performance. Any action at law, suit in equity or judicial proceeding for the enforcement of this Agreement or any provision thereof shall be instituted only in the courts of the State of Florida. X. Amendments to the Agreement The terms of this Agreement constitute the entire understanding between the parties hereto and no statement, promise, condition, understanding, inducement or representation, oral or written, expressed or implied, which is not contained herein shall be binding or valid. This Agreement may only be amended or modified by mutual consent of the parties hereto in writing signed by both parties. Y. No Construction Against Drafting Pa Each party to this Agreement expressly recognizes that this Agreement results from the negotiation process in which each pa was represented by counsel and contributed to the drafting of this Agreement. Given this fact, no legal or other presumptions against the p rty drafting this Agreement concerning its construction, interpretation or otherwise accrue to the benefit of any party to the Agreement, and eaci party expressly waives the right to assert such a presumption in any proceedings or disputes connected with, arising out of, or involving this Agreement. 20 This Agreement shall be in full force and effect only when it has been approved by the duly authorized the Owner officials. IN WITNESS WHEREOF, the parties have executed this Agreement as of the � 6, day of T ry. &1.I 2008. CITY: City of Tamarac, Florida By: LO-MAYOR BETH FLANSBAUM-TALABISCO ATTEST: MARION SWANSON, CITY CLERK A=RM OFFICE OF THE CITY ATTORNEY CONTRACTOR- J. K. DESIGNS, INC. d/b/a National Sculptors' Guild Jo Kinkade x u ive Director 21 STATE OF COLORADO COUNTY OF LARIMER I HEREBY CERTIFY that on this Wh day of 2008, before me personally appeared John Kinkade, personally known to be the individual who executed the foregoing instrument and acknowledged before that he executed the same for the purposes therein, is personally known to me or produced C:'ie--CJG i :;'*�; L. If, en�C ti`) A36 ci-5Z as identification. Notary Public, State of Coldrado Me j1c;n leiuncE Print Name: Commission No. z © o'} Commission Expires: STATE OF COLORADO COUNTY OF LARIMER I HEREBY CERTIFY that on this IV" day of Nvv, +m r 2008, before me personally appeared Jane DeDecker, personally known to be the individual who executed the foregoing instrument and acknowledged before that he executed the same for the purposes therein, is personally known to me or produced Wv i. -i-qvsr as identification. Notary Public, State of CcMrado /tit (h 6 n M a Print Na' e: MHq� Commission No. zcC_j H C bqb 2(C y o Commission Expires: My Commission Expires 10/15/2011 H:\2005\050164 TAMARACWGMTS\DeDecker_Contract _Dawn _Dusk.doc r �• „, ... • , . 22 EXHIBIT A — ARTIST'S FINAL DESIGN PROPOSAL, SCHEDULE AND BUDGET Contract No. Between The City of Tamarac, Florida and Jane DeDecker Scheduled for completion eight (8) months from the date the contract is executed and deposit received. Bronze Sculptures: Dawn & Duck $114,000 Donation to City by Artist (54,000) Total Cost to City for Sculptures $60,000 Two (2) Pedestals 7,000 Two (2) Footings 2,000 Soils Test 1,000 Structural Engineering 2,500 County Permit Fee 75 Shipping 1,700 Installation 1,000 Insurance 800 Travel 2,000 Contingency 1.925 TOTAL $80,000 SUBMITTED BY: Jane ebticker Dates /_1,,:Zi��/ Authord c C /7 nt for The City of Tamarac Q,v Date 23 No Text No Text EXHIBIT E - FORMAT FOR TECHNICAL AND MAINTENANCE RECORD Contract No. Between the Owner and Jane DeDecker I. GENERAL INFORMATION: Artist: Jane DeDecker and the National Sculptors' Guild Title of Work: Dawn and Dusk Location: Tamarac Community Center General Description: Two bronze figurative sculptures depicting Dawn and Dusk mounted on mild steel powder coated pedestals as per attached photos. II. WORK INFORMATION Medium and Description of Materials: The sculptures will be made of museum quality silicon bronze approximately 3/16 of an inch thick with inner stainless steel support structures wherever required. The sculptures will be mounted on mild steel pedestals that are powder coated. The pedestals will have an inner steel structure as required by structural engineering drawings. Special Methods Utilized in Execution of Work: The sculptures will be modeled in clay and cast by the lost was process. Pedestals will be welded. Material Finish: The Sculptures will be patinated to match the models. Pedestals will be powder coated. Installation Method: The sculptures will be mounted to the pedestals with stainless steel pins and the pedestals will be mounted to the footings using stainless steel pins as specified by the structural engineer. The sculptures will be installed using a crane set up in the parking lot. Placement of Work: There are no special requirements regarding sunlight, heat, etc. 24 Now your outdoor sculpture is clean and protected for another six months. With regular upkeep it will look like new for many years to come.