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HomeMy Public PortalAbout2005-16 Providing for Agreement with Sarah MorrisRESOLUTION NO. 2005-16 A CAPITAL PROJECT AUTHORIZING RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF KEY BISCAYNE, FLORIDA; CONCERNING MONACO FOUNTAINS ARTISTIC PROJECT (THE "PROJECT") FOR THE VILLAGE'S CIVIC CENTER SITE; PROVIDING FOR AUTHORIZATION OF THE PROJECT; APPROVING PROFESSIONAL SERVICES AGREEMENT FOR THE PROJECT; PROVIDING FOR IMPLEMENTATION OF THE PROJECT; PROVIDING FOR EFFECTIVE DATE. WHEREAS, the Art in Public Places Board (the "Board") reviewed more than one hundred (100) artists in the process of making a recommendation for the design of art work to be placed in the median (oval) on McIntyre Street based on the site selection criteria approved pursuant to Village Council Resolution 2003-38; and WHEREAS, the Board has recommended that the Village authorize the design, construction and implementation of an artistic Art in Public Places project (the "Project") entitled "Monaco Fountains" as designed by Sarah Morris; and WHEREAS, funding for the Project is provided through the Community Center construction budget and supplementing donations; and WHEREAS, the Project serves to implement the provision of works of Art in Public Places as envisioned by Village Code Section 2-141; and WHEREAS, the Village Council finds that the implementation of the Project at the Civic Center is in the best interest of the Village; and WHEREAS, the Village Council finds that the professional services of Sarah Morris are exempt from competitive purchasing procedures pursuant to Village Code Section 2-87(2), and finds that the use of competitive bidding procedures for the purchase of the special tiles and other components for the Project is impractical and that competitive bidding is hereby waived for such purchase pursuant to Village Code Section 2-85, and further hereby waives any other applicable competitive purchasing procedures for the Project in accordance with Section 2-85 of the Village Code. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF KEY BISCAYNE, FLORIDA AS FOLLOWS: Section 1. Recitals Adopted. That each of the above -stated recitals is hereby adopted and confirmed. Section 2. Agreement Approved. That the Village of Key Biscayne Agreement for Professional Services between the Village and Parallax Corporation, a New York corporation, acting by and through its president, Sarah Morris, in substantially the form attached hereto, is hereby approved, and the Village Manager is hereby authorized to execute the Agreement on behalf of the Village, subject to approval of the Village Attorney as to form and legal sufficiency. Section 3. Implementation. That the Village Manager is hereby authorized to take any action which is necessary to implement the Agreement, this Resolution, and the Project, subject to the restriction that the total Project cost shall not exceed One Hundred Eighty Two ($182,000.00) Dollars, exclusive of the Village's Owner's Representative's fees. Section 4. Funding. That the funding for the Project shall be that which is specified in the Village Manager's Memorandum which accompanies this Resolution, and as described herein. PASSED AND ADOPTED this 12th day of April, 2005. , 46 (eta 6. C ---- MAYOR ROBERT OLDAKOWSKI 2 CONCHITA H. ALVAREZ, CMC, VILLAGE CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENC F:/103.001/Resolution/Providing for agreement between Village and Sarah Morris 2.10.05 VILLAGE OF KEY BISCAYNE AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT, made and entered into this 12th day of April, 2005, by and between the VILLAGE OF KEY BISCAYNE (the "VILLAGE") and PARALLAX CORPORATION, a New York corporation, (the "CONSULTANT"). RECITALS: The VILLAGE wants to engage the CONSULTANT to perform certain professional services for the VILLAGE's Art In Public Places Program consisting of the design and implementation of two artistic reflective pools and hardscape which will be constructed in the plaza of the Village's Civic Center site (the "Project"). The artistic Project is entitled "Monaco Fountains." CONSULTANT shall perform the services (the "Specified Services") which are described in Exhibit "A", a copy of which is attached hereto and incorporated herein. The CONSULTANT wants to provide such Specified Services. In consideration of the mutual covenants set forth in this Agreement, the parties agree as follows: 1. SCOPE OF SERVICES A. The CONSULTANT agrees to provide the Specified Services upon written request from the Village Manager. Unless otherwise specified herein, the Specified Services shall be performed by Sarah Morris. CONSULTANT shall provide the Specified Services as an independent contractor for the VILLAGE. CONSULTANT shall coordinate the performance of its Specified Services with several other contractors who are providing related services to the VILLAGE, including: 1. James A. Cummings, Inc., the VILLAGE's construction manager for the Civic Center site (the "Construction Manager"); 2. Cesar Trasobares, the VILLAGE's primary Art in Public Places Program consultant (the "Arts Consultant); 3. Paul Abbott of Skyline Management, Inc., the VILLAGE's Civic Center site owner's representative (the "Village's Representative"); 4. The engineer selected by the Village as described in paragraph 5 of Exhibit A" (the "Village's Engineer"). Collectively, these parties are referred to as "Additional Contractors of the VILLAGE". B. The CONSULTANT recognizes that, unless expressly provided by the Village Council, only the Village Manager is authorized to commit the expenditure of Village funds for the design, production, installation and implementation of the Project. 2. FEES FOR SERVICES A. The CONSULTANT agrees to charge the VILLAGE for the successful performance of the Specified Services which are provided by CONSULTANT, in accordance with the fee and cost schedule of: (a) Thirty Thousand ($30,000.00) Dollars for the design and full implementation and final inspection of the Project; and (b) Thirty Four Thousand ($34,000.00) Dollars for the cost of fabrication and insured delivery of all of the tiles for the Project to VILLAGE; for a total fee and cost (the sum of (a) and (b)) not to exceed Sixty Four Thousand ($64,000.00) Dollars. B. Fees pursuant to paragraph 2(A)(a) above shall be paid pursuant to the following schedule: (a) Five Thousand ($5,000.00) Dollars upon execution of this Agreement by both parties; and (b) Fifteen Thousand ($15,000.00) Dollars upon issuance of the Village building permit for the Project; and (c) Ten Thousand ($10,000.00) Dollars upon final acceptance and issuance of certificate of completion for the Project. C. Costs pursuant to paragraph 2(A)(b) above shall be paid pursuant to the following schedule: (a) Seventeen Thousand ($17,000.00) Dollars payable to CONSULTANT for use as a deposit for fabrication and purchase of the tiles, upon authorization by the VILLAGE's Representative pursuant to paragraph 2(e) of Exhibit "A"; and (b) Seventeen Thousand ($17,000.00) Dollars upon the successful delivery of the tiles to the Project site and acceptance by the VILLAGE. 3. TERM The duration of the term of this Agreement shall commence on April 12, 2005 and shall end on December 30, 2005, unless extended by the Village Manager or earlier terminated pursuant to paragraph 7. 4. RECORDS; USE OF DESIGN; ETC. A. The final Project design upon which a building permit is issued shall be the property of the VILLAGE for use at the Project site only. B. CONSULTANT hereby grants to VILLAGE the right to use images of the CONSULTANT's work and the Project for educational, promotional and informational, non-commercial purposes, in any media, including but not limited to, printed post cards, posters, and posting on the VILLAGE's websites and other related websites authorized by VILLAGE. C. VILLAGE hereby reserves the right to install a plaque or sign with information about the CONSULTANT, Sarah Morris, the Project, and the VILLAGE's Art in Public Places Board. D. CONSULTANT and VILLAGE agree that if the Project is altered so that, in the CONSULTANT's reasonable opinion, the integrity of the Project, as a work of art, is damaged, the CONSULTANT may choose to have its name and the name of Sarah Morris disassociated with the Project and have any reference to CONSULTANT or Sarah Morris removed from the Project. E. If the Project is to be refurbished, repaired or modified, at any time within ten (10) years after completion of the Project, the VILLAGE hereby agrees to grant the CONSULTANT (acting by and through Sarah Morris) the right of first refusal to provide professional oversight to VILLAGE for such refurbishment or repairs for a reasonable fee which is acceptable to the Village Manager. If CONSULTANT rejects such right of first refusal, fails to accept VILLAGE's offer of being retained by VILLAGE for such purpose within twenty (20) days of such offer or if the CONSULTANT and VILLAGE are unable to timely agree to the terms of CONSULTANT's oversight services for such refurbishment or repair, the right of first refusal shall be extinguished and the CONSULTANT shall retain and may exercise its right of disassociation as set forth in paragraph (D) above. This paragraph (E) shall not apply if Sarah Morris is no longer CONSULTANT's president and controlling stockholder. 5. ASSIGNMENT This Agreement shall not be assignable by the CONSULTANT. 6. PROHIBITION AGAINST CONTINGENT FEES The CONSULTANT warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the 5 CONSULTANT, to solicit or secure this Agreement, and that it has not paid or agreed to pay any person(s), company, corporation, individual or firm, other than a bona fide employee working solely for the CONSULTANT any fee, commission, percentage, gift or any other consideration, contingent upon or resulting from the award or making of this Agreement. 7. TERMINATION This Agreement may be terminated by the VILLAGE upon twenty (20) days written notice with or without cause and by the CONSULTANT upon sixty (60) days written notice with or without cause. If this Agreement is terminated, the CONSULTANT shall be paid in accordance with the provisions of Exhibit "A" and Paragraph 2 above, for all acceptable work performed up to the date of termination. 8. NONEXCLUSIVE AGREEMENT The services to be provided by the CONSULTANT pursuant to this Agreement shall be nonexclusive and nothing herein shall preclude the VILLAGE from engaging other firms to perform similar services for the benefit of the VILLAGE within the VILLAGE'S sole and absolute discretion. 9. ENTIRE AGREEMENT The parties hereby agree that this is the entire agreement between the parties. This Agreement cannot be amended or modified without the express written consent of the parties. The Village Manager shall act for Village hereunder. 10 WARRANTIES OF CONSULTANT The CONSULTANT hereby represents that it possesses the special artistic, creative and practical skills which are essential for the Project and warrants that at all times during the term of this Agreement it shall maintain in good standing any required licenses, certifications and permits required under Federal, State and local laws which are necessary for CONSULTANT to perform the Specified Services. 11. NOTICES All notices and communications to the VILLAGE or CONSULTANT shall be in writing and shall be deemed to have been properly given if transmitted by registered or certified mail or hand delivery. All notices and communications shall be effective upon receipt. Notices shall be addressed as follows: Village: Jacqueline R. Menendez Village Manager Village of Key Biscayne 88 West McIntyre Street Key Biscayne, FL 33149 With a copy to: David M. Wolpin, Esq. Village Attorney Weiss Serota Helfinan Pastoriza Guedes Cole & Boniske, P.A. 2665 South Bayshore Drive, Suite 420 Miami, Florida 33133 7 Consultant: Parallax Corporation do Sarah Morris 601 West 26th Street Suite 1512 New York, New York 10001 With a copy to: Dennis Scholl, Esq. Roth and Scholl 1500 San Remo Avenue, Suite 176 Coral Gables, Florida 33146 12. NO LIABILITY OF CONSULTANT, ETC. Subject to CONSULTANT's satisfactory performance in accordance with CONSULTANT's responsibilities under this Agreement, the VILLAGE hereby agrees to defend, indemnify, and hold harmless CONSULTANT and Sarah Morris from any claim by or liability to any other person concerning any personal injury sustained by such person which claim or liability results from the display of the Project. This covenant of the VILLAGE shall be subject to the limitations of Section 768.28, Florida Statutes which governs the authority of the VILLAGE. 13. GOVERNING LAW This Agreement shall be construed in accordance with the laws of the State of Florida. Venue for any litigation hereunder shall be in Miami -Dade County, Florida. The parties hereby knowingly and voluntarily waive any right to a trial by jury of any claim which in any way arises hereunder between them. IN WITNESS WHEREOF, the parties hereto have accepted, made and executed this Agreement upon the terms and conditions above stated on the day and year first above written. CONSULTANT: PARALLAX CORPORATION 601 West 26th Street Suite 1512 New York New York 10001 By: � Name: arah Mor Title: President Approved as to Form and Legal Sufficiency: tri4n I - Village Attorney VILLAGE: VILLAGE OF KEY BISCAYNE 88 West McIntyre Street Key Biscayne, FL 33149 EXHIBIT "A" A. SPECIFIED SERVICES 1. CONSULTANT shall finalize and provide to VILLAGE the CONSULTANT's design for the Project which is entitled "Monaco Fountains", including benches surrounding the reflective ponds, illumination, plaza floor cover material and water flow and drainage, all in a manner by which CONSULTANT obtains the approval of the VILLAGE's Art in Public Places Board. 2. a. CONSULTANT will arrange for fabrication of the tiles which are to be utilized as an essential component of the Project designed by CONSULTANT, so as to assure quality control of tile colors, types and sizes of cuts of tiles and any other details which are necessary to comply with the design. b. CONSULTANT shall make provision for the tile fabricator to produce a reasonable quantity of extra tiles to replace any that might break during installation or subsequently. c. CONSULTANT shall arrange for the tile fabricator to ship tiles, all properly labeled, to a designated location which is approved by the VILLAGE's Representative. d. CONSULTANT shall require the tile fabricator to provide casualty insurance covering the risk of loss of the tiles prior to receipt of the tiles by the VILLAGE or the VILLAGE's Construction Manager at the Project site. Upon acceptance of the delivery of the tiles by the VILLAGE or by the VILLAGE's Construction Manager at the Project Site, the risk of loss concerning the tiles shall thereafter shift to the VILLAGE or to the VILLAGE's Construction Manager, as determined by the contractual relationship between the VILLAGE and VILLAGE's Construction Manager. e. CONSULTANT recognizes that CONSULTANT's selection and use of the tile fabricator, the total cost of the tiles to be charged by the tile fabricator for the tiles manufactured for the VILLAGE, and the terms and conditions of the sale, delivery and acceptance of the tiles shall be subject to the prior written approval of the VILLAGE's Representative. f. CONSULTANT recognizes that the VILLAGE has the right to require the tiles to be re -fabricated in the event of damage or destruction, subject to the requirements of paragraph 4(E) of the Agreement. 3. CONSULTANT and/or CONSULTANT's technical assistant shall directly supervise the installation of the tiles by a skilled tile installation subcontractor who is approved by VILLAGE's Construction Manager, VILLAGE's Representative and CONSULTANT, with such approval not to be unreasonably withheld. 4. CONSULTANT shall provide for Sarah Morris to attend the dedication ceremony for the Project. Further, CONSULTANT's art gallery will facilitate a small exhibition of the work of Sarah Morris at the Project site, if desired by her. 5. CONSULTANT recognizes that the VILLAGE's Construction Manager or alternatively a general contractor approved by the Village Manager, will utilize the services of a Florida registered professional engineer and/or architect licensed in Florida, approved by the VILLAGE's Representative, in order to develop detailed technical plans of the CONSULTANT's vision of the Project, including the final plaza and design of fountain — reflective pool basins. The detailed technical plans shall conform with the Florida Building Code and any other code for which compliance is required for issuance of building permits. 6 CONSULTANT recognizes that the VILLAGE's Construction Manager or alternatively a general contractor approved by the Village Manager, will, except as otherwise specified herein, construct or arrange for the construction of all components of the work for the Project, including reflective pools and electrical and plumbing, as initially designed by CONSULTANT and as finalized by the detailed technical drawings of the above -referenced engineer and/or architect, including installation of the floor material for the plaza. 7. CONSULTANT recognizes that, unless otherwise determined by the Village Manager, the VILLAGE's Construction Manager will: (1) assume responsibility for providing liability insurance coverage at the Project site throughout the Project's construction and installation process; and (2) provide for any necessary fencing and safety barriers or signage; each in accordance with the existing construction management agreement between the VILLAGE and VILLAGE's Construction Manager by which the Civic Center has been developed. 8 CONSULTANT, acting by and through Sarah Morris, shall provide all necessary artistic, creative and coordination services in order to assist the VILLAGE and the Additional Contractors of the VILLAGE in connection with the design, permitting, installation and completion of the Project. F./103.001/Agreements/New Agreement for professional services artistic reflective pond 12 15.04