R08-145
II
2: RESOLUTION NO. R08-la..IS'"
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5 A RESOLUTION OF THE CITY COMMISSION OF
6 THE CITY OF BOYNTON BEACH, FLORIDA,
7 APPROVING AN AGREEMENT TO HIRE A PUBLIC
8 ARTIST BETWEEN THE CITY OF BOYNTON BEACH
9 AND MONTOYA SCULPTURE & SUPPLY, FOR THE
10 CREATION OF A SCULPTURE FOR FIRE STATION
11 #5 IN THE AMOUNT OF $40,512.00; AND PROVIDING
12 AN EFFECTIVE DATE.
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15 WHEREAS, Fire Station #5 is participating in the Public Art Ordinance 07-002 by
16 contributing to the creation and implementation of its public art elements; and
17 WHEREAS, the City Commission of the City of Boynton Beach, upon
18 recommendation of staff, deems it to be in the best interests of the residents and citizens of
19 the City of Boynton Beach to approve the Agreement between the City of Boynton Beach
20 and Montoya Sculpture & Supply, in the amount of $40,512.00 for the creation of a
21 sculpture for Fire Station #5.
22 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
23 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
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Section 1.
Each Whereas clause set forth above IS true and correct and
25 incorporated herein by this reference.
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Section 2.
The City Commission of the City of Boynton Beach, Florida does
27 hereby approve and authorize the execution of the Agreement between the City of Boynton
28 Beach and Montoya Sculpture & Supply, in the amount of $40,512.00 for the creation of a
29 sculpture for Fire Station #5, a copy of said Agreement is attached hereto as Exhibit "A".
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Section 3.
That this Resolution shall become effective immediately upon
S.\CA\RESO\AgreementSlFire Station #5- Public Artist(sculpture).doc
II
passage.
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PASSED AND ADOPTED this ~ day of December, 2008.
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20 ATTEST:
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CITY OF BOYNTON BACH, FLORIDA
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S:ICAIRESO\AgreementSlFire Station #5 - Public Artist(sculpture).doc
ROB-ILlS-
AGREEMENT
~'"
TIDS AGREEMENT, dated the \~ day of \Jec..e...~'o~, ,2008, is by and
between:
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
Montoya Sculpture & Supply, with an address of 502 Palm Street, #21, West Palm
Beach, Florida 33401 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, prormses, covenants and payments
hereinafter set forth, CITY and ARTIST agree as follows:
WHEREAS, public art is a work of art, generally created by a public artist exhibiting the
highest quality of skill and aesthetic principals and includes all forms of the visual arts conceived in
any medium, material or combination hereof, including but not limited to paintings, sculptures, stained
glass, mosaics, murals, and artists designed functional, architectural" landscaped, and landform
elements as described in the Public Art Ordinance 07-002; and
WHEREAS, CITY desires to obtain professional services from an artist for the creation of Fire
Station #5 public art elements; 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 public art elements
for the CITY; and
WHEREAS, the CITY desires to commission the ARTIST to create public art elements; 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:
1.1. RECITALS: Each "whereas" clause set forth above IS true and correct and herein
incorporated by this reference.
Page 1 of8
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 public art elements 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 public art elements or any portion thereof. The
display, of the public art elements shall 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 Fire Station #5
Public Art elements dated October 20,2008, a copy of which is attached hereto as Exhibit "A".
3.4. Artist is required to coordinate with construction project management to prepare, install and complete
the public art project. City is not responsible for negotiating, coordinating or managing the public art
project timeline. Public Art Administrator will monitor the project and from time to time document the
public art projects process. Project is estimate to begin November 2008 with a completion date estimation
of June 2009.
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
public art elements 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 Fire Station #5 Public Art elements dated October 20, 2008, a copy of which is attached hereto
as Exhibit "A".
Page 3 of8
ARTICLE 6
CHANGES TO SCOPE OF WORK AND ADDITIONAL 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 suJ>.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.
Page 4 of8
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.
For 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:
Page 5 of8
CITY : Kurt Bressner, City Manager
City of Boynton Beach
100 East Boynton Beach Boulevard
Boynton Beach, Florida 33435
Telephone No. (561) 742-6010
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: \\()..l\-~r-" )..,-_\~..,;c n'\f\~1
t:;r' (~.... .'Y\ .tt 2\
W {'(\ ~v ~.~ L{C I
Telephone No. h;[ ( - (4~j -74/1.:
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.
Page 6of8
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.
7.15 Usage Rights. After final 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.
ATTEST:
J
CITY
CITY OF BOYNTON BEACH, FLORIDA:
BY:
..
~y;,,~- ~ttwf~
T B SSNER, CITY MANAGER
As>i. 0:7 /Za~c~y--c-
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ARTIST
WITNESSES: ~.~~.--
\)V0011 ~ ~l)(Y)~ BY:
~ ~~ PaUu- M- PrintN~ ~. \\ '" \ .: i. ~. J)c .t.:::
(,0 \:\.. (~"" c<) . .\t\' ,,'
~Title: \'1\~:.. \ )
~ .S., f( \ I
STATE OF FLORIDA :
: ss:
COUNTY OF ~~ ~ :
BEFORE ME, an officer duly authorized by law to adrninisteJ;' oaths and take acknowledgments,
personally appeared r-o...~ \t~~~ON as ~~~\~ of NC)N\CNf\ <;e~~)
who is personally wn to me or who has produced ~. t>. L. 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 ~ FOREGOING, I have set my hand and official seal at in the State and
County aforesaid on this .~\ day of ~ a. _....~ ' 200a
1t _N*_d_I ~. Q .l..-
. . DebbIe A Reemsnyder . (Signature of Notary P~State of Florida)
'\; 'I My ConvniSIion 00495810 ~ffiQ~ ^. ~C:AMSN~J\. t
G,,\l Expns 12lO2l2OO9 ,
(Print, Type or Stamp Commission Name of Notary Public)
Page 8 of8
CITY CLERK'S OFFICE
MEMORANDUM
TO:
Debby COles-Dobay
Public Arts Administrator
FROM:
Janet Prainito
City Clerk
DATE:
December 23, 2008
RE:
R08- 145 Agreement between the City of Boynton Beach and
Montoya Sculpture & Supply
Attached for your handling is the partially executed agreement mentioned above and a
copy of the Resolution. Once the document has been fully executed, please return the
original document to the City Clerk's Office for Central File.
Please contact me if there are any questions. Thank you.
~Yn. ~
Attachments (2)
S:\CC\WP\AFTER COMMISSION\Departmental Transmittals\2008\Debby Coles-Dobay R08-145.doc
The City of Boynton Beach
CITY MANAGERS OFFICE
Public Art Administrator
100 E. Boynton Beach Blvd.
PO. Box 310
Boynton Beach, FL 33425
phone (561) 742-6026 fax (561) 742-6089
email colesdobayd@cLboynton-beach.fl.us
www.boynton-beach.org
February 25, 2009
Montoya Sculpture and Supply
502 Palm Street #21
West Palm Beach, Florida 33401
cell: 561-644-7416
jhalver@worldnet.att.net
Jeff,
This letter serves as an approval for your company, Montoya Sculpture and Supply
to sub-contractor with artist Dana Donaty Designs, LLC, to produce the timeline
wall mural for Fire Station #5, E.O.C. project. Dana Donaty Designs was ap-
proved as a public artist at the February 24, 2009 Arts Commission meeting.
This letter also serves to approve the change in the scope of work approved by the
Fire Station staff and the Arts Commission's February 24, 2009 meeting. See
change order attached in the amount of $2,900.00.
Sincerely,
Debby Coles- Dobay
Public Art Administrator
Cc: Lori La Verriere, Assistant City manager
James Cheroff, City Attorney
City of Boynton Beach .
Art in Public Places .
Enriching our Community through Public Art
CHANGE ORDER FIRE STATION #5 PUBLIC ART
December 16,2008 - The City Commission already approved the budget of $78,862.00,
$12,651.00 artist agreement, $27,861.00 for floor mosaics paid by Urban Building Systems. Inc. and
$38,350.00 for fire equipment value contribute to the project.
February 24, 2009 - The Arts Commission approved the public art changes and costs
CHANGE ORDER TO ORIGINAL PUBLIC ART PROJECT
Fire Eauioment Value Contribution
Chrome on Brass Play pipe wi Nozzle (lea)
Male Swivel Coupling (lea) -
. SCBA valves $449.95 ea x 2 =
· Steamer Cap (l ea) -
Total per fixture $ 2,351.75 x 2 ,=
Ceremonial Bell
6 Historical images
· Rav Altman's SculDture valued at
Fire Equipment total value:
Jeff Halverson's Public Art orooosal with chan~es
#1 Fire Equipment Entry Sconces,
#2 Main Lobby Window Images,
#3 Lobby Chandelier and Coffered Ceiling,
#4 Floor Mosaics
#5 Time Line Wall \vith fire equipment
#5 Time Line Wall Mural (sub contractor)
Artists total costs
Artists agreement
CHANGE ORDER
$ 2,011
$ 1,540.
$ 3,985
$27,861 *
$ 5, 115
$12,000
$15,551
$12,651
$ 2,900+
$ 1,208.95
74.95
$ 899.90
$ 167.95
$ 4,703.50
$ 3,300.00
$ 2,500.00
$15.000.00
$25,503.50
* Floor mosaics $27,861.00 cost paid by Urban Building Systems. Inc
FIRE STATION #5 PUBLIC ART BUDGET
Fire Station # 5 construction cost $8,990,000.00
1 % public art fee $89,900.00
70% of the 1 % public art budget $62,930.00
Total cost of public art committed to project $68,915.50
Above changes will satisfy the public art requirement.
c3/~ (
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