R07-064
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RESOLUTION NO. R07- ofoL/
A RESOLUTION OF THE CITY COMMISSION OF
BOYNTON BEACH, FLORIDA, AUTHORIZE THE
IMPLEMENTATION AND BUILD OF THE ETERNAL
FLAME MEMORIAL PUBLIC ART PROJECT
PROPOSED FOR BICENTENNIAL PARK;
AUTHORIZING THE EXECUTION OF AN
AGREEMENT WITH ARTIST JAMES MASTIN FOR
THE CREATION OF THE ETERNAL FLAME
SCULPTURE IN THE AMOUNT OF $35,000.00; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, on December 1, 2006, a Request for Proposal went to three artists; and
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WHEREAS, two of the three artists presented proposals which were reviewed by a
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selection panel and the proposal submitted by James Mastin was unanimously selected; and
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WHEREAS, the City Commission of the City of Boynton Beach, upon
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recommendation of staff, deems it to be in the best interests of the residents and citizens of the
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City of Boynton Beach to approve the Agreement in the amount of $35,000.00 between the
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City of Boynton Beach and James Mastin for the creation of an Eternal Flame sculpture to be
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placed in Bicentennial Park.
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NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
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THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
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Section 1.
Each Whereas clause set forth above IS true and correct and
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Section 2.
The City Commission of the City of Boynton Beach, Florida does
30 hereby approve and authorize the execution of the Agreement in the amount of $35,000.00
31 between the City of Boynton Beach and James Mastin for the creation of an Eternal Flame
S:\CA\RESO\Agreements\Etemal Flame - Mastin Agrnt.doc
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sculpture to be placed in Bicentennial Park, a copy of said Agreement is attached hereto as
2 Exhibit "A".
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Section 3.
That this Resolution shall become effective immediately upon passage.
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PASSED AND ADOPTED this ~ day of-June, 2007.
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22 ATTEST:
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S:\CAIRESO\Agreements\Etemal Flame - Mastin Agrnt.doc
CITY OF BOYNTON BEACH, FLORIDA
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AGREEMENT
R07-0foL/
TIDS AGREEMENT, dated the
between:
day of
, 2007, is by and
CITY OF BOYNTON BEACH, a municipal corporation, organized and operating
pursuant to the laws of the State of Florida, with a business address of 100 East Boynton
Beach Boulevard, Boynton Beach, Florida 33435, hereinafter referred to as "CITY",
and
JAMES MASTIN, with an address of 500 N.E. 55th Terrace, Miami, FL 33137
hereinafter referred to as "ARTIST." CITY and ARTIST may hereinafter collectively
be referred to as the "Parties."
WITNESSETH:
In consideration of the mutual terms and conditions, promises, covenants and payments
hereinafter set forth, CITY and ARTIST agree as follows:
WHEREAS, a sculpture is a work of art, generally created by carving, modeling, casting or
shaping materials, such as metals, into a three-dimensional figure; and
WHEREAS, CITY desires to obtain professional services from an artist for the creation of a
sculpture for the American Legion Eternal Flame Memorial; and
WHEREAS, ARTIST possesses specific skills, talent, expertise, experience and knowledge to
provide the CITY with the sculpture in a professional and artistic manner; and
WHEREAS, ARTIST has stated an interest in working on the creation of a Sculpture for the
CITY; and
WHEREAS, the CITY desires to commission the ARTIST to create Sculpture; and
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements
herein contained and other good and valuable consideration, the receipt of which is hereby
acknowledged, it is agreed herein between the Parties hereto as follows:
ARTICLE 1
1.1. RECITALS: Each "whereas" clause set forth above IS true and correct and herein
incorporated by this reference.
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ARTICLE 2
SERVICES AND RESPONSmILITIES
2.1. ARTIST hereby agrees to create a Sculpture, or other services which may otherwise be
required, as further enumerated in the Scope of Services set forth in Article 3 herein below.
2.2. The sculpture shall be located at such location within the CITY as designated by the CITY.
2.3. ARTIST shall furnish all services and labor necessary and as may be required in the
performance of this Agreement.
2.4. ARTIST hereby represents to CITY, with full knowledge that CITY is relying upon these
representations when entering into this Agreement with ARTIST, that ARTIST has the professional
expertise, talent, experience and manpower to perform the services to be provided by ARTIST
pursuant to the terms of this Agreement.
2.5. ARTIST certifies, to his knowledge, that all work performed pursuant to this agreement,
including but not limited to the Sculpture, is an original creation and does not infringe upon or violate
any copyrights or other rights of any person, firm or organization.
2.6. The CITY recognizes the ARTIST's rights pursuant to the Federal Visual Artist Rights Act of
1990, known as "V ARA". The CITY will not intentionally distort and/or modify the sculpture, where
the modification or distortion would prejudice the ARTIST's honor or reputation.
2.7. The CITY is entitled to exhibit, publish, broadcast, advertise and otherwise use the likeness of
the sculpture, in any manner the CITY sees fit. The CITY agrees not to sell the sculpture to a third-
party for monetary gain. The CITY may transfer ownership of the sculpture to another governmental
entity or to a not for profit corporation.
2.8. The CITY agrees to give the ARTIST full acknowledgement and credit as the creator of the
sculpture, with the placement of a plaque or similar object on and/or near the sculpture.
2.9. The value of the sculpture is established when the price of the art is Commissioned.
2.10. The CITY agrees to provide the ARTIST access to CITY property, as a work site to prepare the
sculpture for installation.
2.11. ARTIST may not hire or utilize the services of any sub-contractor, employee or other
individual to assist the ARTIST in performing services under this agreement without the prior written
approval of the CITY.
2.12 ARTIST warranties the final product against all defects in workmanship and materials for a
period of one year.
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ARTICLE 3
SCOPE OF SERVICES
ARTIST shall perform the following services in accordance with this Agreement with CITY as
follows:
3.1. All work performed under this Agreement shall be done in a professional manner.
3.2. The sculpture shall be produced to the CITY's satisfaction and in conformity with the appropriate
moral and ethical standards for the community in which the CITY is located. The quality of the
completed materials is a matter of prime importance and shall meet all applicable industry standards. The
CITY shall have the right to approve and/or reject the sculpture or any portion thereof The display, of the
sculpture sha11 be subject to the sole discretion of the CITY.
3.3 The ARTIST shall perform and provide services as set forth in the Proposal for the American
Legion Eternal Flame Memorial dated January, 2007, a copy of which is attached hereto as Exhibit "A".
ARTICLE 4
TERM AND TERMINATION
4.1. This Agreement shall take effect as of the date of execution as shown herein below and shall end
upon completion of the ARTIST's work and services described in Articles 2 and 3 hereof
4.2. All documents, plans, work products, materials, equipment and tools belonging to the CITY
will be furnished to the CITY upon completion and/or termination of the Agreement, whichever occurs
first.
4.3 The CITY'.s rights to exhibit, publish, broadcast, advertise and otherwise use of the likeness of
the sculpture shall survive the termination of this Agreement.
ARTICLE 5
COMPENSATION
5.1. The CITY shall provide compensation and/or payments to the ARTIST as set forth in the
Proposal for the American Legion Eternal Flame Memorial dated January, 2007, a copy of which is
attached hereto as Exhibit "A" as follows:
50% Deposit to commence
25% prior to bronze casting (June 2007)
25% at installation
$17,500.00
$ 8,750.00
$ 8.750.00
Total
$35,000.00
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ARTICLE 6
CHANGES TO SCOPE OF WORK AND ADDmONAL WORK.
CITY or ARTIST may request changes that would increase, decrease or otherwise modify the
Scope of Services to be provided under this Agreement. Such changes or additional services must be
in accordance with the provisions of the Code of Ordinances of the CITY and must be contained in a
written amendment, executed by the Parties hereto, with the same formality and with equal dignity
herewith prior to any deviation from the term or scope of this Agreement, including the initiation of
any additional or extra work. In no event will ARTIST be compensated for any work which has not
been described in a separate written agreement executed by the Parties hereto.
ARTICLE 7
MISCELLANEOUS
7.1. Insurance. Worker's Compensation Insurance, property damage, liability insurance and vehicular
liability insurance shall be maintained during the life of this contract to comply with statutory limits for all
employees, and in the case any work is sublet, the ARTIST shall require the sub-Contractors similarly to
provide Worker's Compensation Insurance for all the latter's employees unless such employees are
covered by the protection afforded by the ARTIST.
A. ARTIST shall secure and maintain in force, throughout the duration of this contract,
comprehensive general and automobile liability insurance with a minimum coverage of
$1,000,000 per occurrence; $1,000,000 aggregate for personal injury; $1,000,000 per
occurrence/aggregate for property damage; and, professional liability insurance in the amount
of $1,000,000 (all professional contract services).
B. Said general liability policy shall name the City of Boynton Beach as an additional insured and
shall include a provision prohibiting cancellation of said policy except upon thirty (30) days
prior written notice to the City.
C. ARTIST shall secure and maintain in force throughout the duration of this contract workers'
compensation insurance to statutory limits.
D. ARTIST shall furnish the City with a certificate of insurance after award has been made prior
to the start of any work for the City. Said insurance companies must be authorized to do
business in the State of Florida and the City will not accept any company that has a rating less
than B+ in accordance with A.M. Best's Key Rating Guide, latest edition.
E. Reference Insurance Advisory Form for additional types of insurance and limits required. The
City reserves the right to require additional types of insurance, or to raise or lower the stated
limits, based upon identified risk.
If ARTIST claims to be exempt from this requirement, ARTIST shall provide CITY proof of
such exemption along with a written request for CITY to exempt ARTIST, written on
ARTIST's letterhead.
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7.2. Independent Contractor. 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.
7.3. Assignments.
7.3.1. This Agreement, or any interest herein, shall not be assigned, transferred or otherwise
encumbered, under any circumstances, by ARTIST without the prior written consent of CITY.
However, this Agreement shall run to the CITY and its successors and assigns.
7.3 .2. It is further agreed that no modification, amendment or alteration in the terms or
conditions contained herein shall be effective unless contained in a written document executed
with the same formality and of equal dignity herewith.
7.4. No Contingent Fees. ARTIST warrants that it has not employed or retained any company or
person, other than a bona fide employee working solely for the ARTIST to solicit or secure this
Agreement, and that it has not paid or agreed to pay any person, company, corporation, individual or
firm, other than a bona fide employee working solely for ARTIST any fee, commission, percentage,
gift, or other consideration contingent upon or resulting from the award or making of this Agreement
F or the breach or violation of this provision, the CITY shall have the right to terminate the Agreement
without liability at its discretion, to deduct from the contract price, or otherwise recover the full
amount of such fee, commission, percentage, gift or consideration.
7.5. Notice. Whenever any party desires to give notice unto any other party, it must be given
by written notice, sent by registered United States mail, with return receipt requested, addressed to the
party for whom it is intended and the remaining party, at the places last specified, and that places for
giving of notice shall remain such until they shall have been changed by written notice in compliance
with the provisions of this section. For the present, the ARTIST and the CITY designate the following
as the respective places for giving of notice:
CITY:
Kurt Bressner, City Manager
City of Boynton Beach
100 East Boynton Beach Boulevard
Boynton Beach, Florida 33435
Telephone No. (561) 742-6010
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Facsimile No. (561) 742-6011
Copy To:
James A. Cherof, City Attorney
Goren, Cherof, Doody & Ezrol, P.A.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale, Florida 33308
Telephone No. (954) 771-4500
Facsimile No. (954) 771-4923
ARTIST:
James Mastin
500 N.E. 55th Terrace
Miami, FL 3313 7
Telephone No. 305-754-1983
7.6. Binding Authority. Each person signing this Agreement on behalf of either party
individually warrants that he or she has the full legal power to execute this Agreement on behalf of the
party for whom he or she is signing, and to bind and obligate such party with respect to all provisions
contained in this Agreement.
7.7. Headings. Headings herein are for convenience of reference only and shall not be
considered on any interpretation of this Agreement.
7.8. Severability. If any provision of this Agreement or application thereof to any person or
situation shall to any extent, be held invalid or unenforceable, the remainder of this Agreement, and the
application of such provisions to persons or situations other than those as to which it shall have been
held invalid or unenforceable shall not be affected thereby, and shall continue in full force and effect,
and be enforced to the fullest extent permitted by law.
7.9. Governing Law. This Agreement shall be governed by the laws of the State of Florida
with venue lying in Palm Beach County, Florida.
7.10. Attorney's Fees. In the event that either party brings suit for enforcement of this
Agreement, each party shall bear its own attorney's fees and costs.
7.11. Extent of Agreement. This Agreement represents the entire and integrated agreement
between the CITY and the ARTIST and supersedes all prior negotiations, representations or
agreements, either written or oral.
7.12. Equal Employment Opportunity. In the performance of this Agreement, the ARTIST shall
not discriminate against any firm, employee or applicant for employment or any other firm or
individual in providing services because of sex, age, race, color, religion, ancestry or national origin.
7.13. Waiver. Any failure by ARTIST to require strict compliance with any provision of this
contract shall not be construed as a waiver of such provision, and ARTIST may subsequently require
strict compliance at any time, notwithstanding any prior failure to do so.
7.14. Counterparts. This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, and all of which together shall constitute one and the same instrument.
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7.15 Usage Rights After fmal acceptance of the artwork by the CITY, the following artists'
rights shall be guaranteed:
· Maintenance of public artworks shall be the responsibility of the CITY or developer or
property association and not the ARTIST. The responsible party shall make reasonable
efforts to maintain the artwork in good repair. The responsible party shall attempt to
consult the ARTIST on major repairs.
· The artwork shall not be altered, modified, removed or relocated from a site integral to the
concept for the work without fIrst consulting with the ARTIST, if reasonably possible. If a
work, nevertheless, has been significantly altered, the ARTIST shall have the right to
disclaim authorship.
· Copyright of the artwork shall belong to the creator(s), but the CITY or developer or
property association shall be granted the right to make two-dimensional reproductions for
non-commercial purposes.
IN WITNESS OF THE FOREGOING, the Parties have set their hands and seals the day and
year fIrst written above.
CITY
~
. T PRAINITO, CITY CLERK
APPROVED AS TO FORM:
BY:
CITY OF BOYNTON BEACH, FLORIDA:
KUR~MANAGER
(i
ICE OF TIIE CITY ATTORNEY
ARTIST
WITNESSES:
BY:
Print Name: James Mastin
Title:
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STATE OF FLORIDA
COUNTY OF
: ss:
BEFORE ME, an officer duly authorized by law to administer oaths and take acknowledgments,
personally appeared as of
who is personally known to me or who has produced as
identification, and acknowledged executing the foregoing Agreement as the proper official of
for the use and purposes mentioned therein and that the instrument is the act and deed
of
IN WITNESS OF THE FOREGOING, I have set my hand and official seal at in the State and
County aforesaid on this day of ,2007.
(Signature of Notary Public - State of Florida)
(Print, Type or Stamp Commission Name of Notary Public)
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