RESOLUTION NO

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1 RESOLUTION NO A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF TAMPA AND DEAR PRODUCTIONS, INC. TO DEVELOP AND DESIGN LIGHTING CONCEPTS FOR THE INSTALLATION OF LIGHTING ENHANCEMENTS TO FOUR BRIDGES WITHIN THE CITY OF TAMPA, AS PART OF THE LIGHTS ON TAMPA PROGRAM; AUTHORIZING THE MAYOR TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Tampa ("City") desires to incorporate and display light-based artwork throughout the Central Business District in Tampa, Florida (the "Lights on Tampa Program"); WHEREAS, Dear Productions, Inc. (the "Artist") desires to take an active role in the display of public art by participating in the Lights on Tampa Program in the Central Business District in Tampa, Florida; WHEREAS, pursuant to Chapter 4, City of Tampa Code, after a soiicitation of proposals, the City's Public Art Committee recommended the proposal by the Artist to develop and design a lighting concept for the installation of lighting to artistically enhance the architectural features of four bridges within the City of Tampa as part of the City of Tampa's Lights on Tampa Program; and WHEREAS, it is the desire of the City and the Artist to establish the terms and conditions under which the design will be created, the payment terms and responsibilities, as well as for the purpose of collaboration and cooperation between the parties. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF TAMPA, FLORIDA: NOW, THEREFORE, Section 1. That the Contract between the City of Tampa and the Artist, a copy of which is attached hereto, in substantially the form of, and made a part hereof, is hereby approved in its entirety. Section 2. That funds in the total amount of Thirty Thousand Dollars ($30,000) shall be made available in Account No. AD5032E08 (Public Art Trust and Capital Improvement Project Funds). Section 3. That the Mayor of the City of Tampa is hereby authorized and empowered to execute, and the City Clerk to attest and affix the official seal of the City of Tampa to, said Contract on behalf of the City of Tampa. Section 4. That other proper officials of the City of Tampa are hereby authorized to do all things necessary in order to carry out and make effective the provisions of this Resolution. Section 5. That this Resolution shall take effect immediately upon its adoption. ADOPTED BY THE CITY COUNCIL OF THE CITY OF TAMPA, FLORIDA ON Approved As To Legal Sufficiency: Marcella T. Hamilton Assistant City Attorney

2 CONTRACT WITH ARTIST FOR LIGHTS ON TAMPA PROGRAM THIS CONTRACT is made and entered into tits day of, 2012, by and between the City of Tampa, (the "City"), a municipal corporation of the State of Florida, with an address of 315 East Kennedy Boulevard, Tampa, Florida and Dear Productions, Ioc., (the "Artist"), the address of which is 329 North Maple Avenue, Oak Park, Illinois WHEREAS, the City desires to incorporate and display light-based artwork throughout the Central Business District in Tampa, Florida, for the City's public art program known as "Lights on Tampa"; WHEREAS, the Artist desires to take an active role in the display of public art by participating in Lights on Tampa in the Central Business District in Tampa, Florida; WHEREAS, pursuant to Chapter 4, City of Tampa Code, after a solicitation of proposals for the Lights on Tampa, and at the recommendation of the Lights on Tampa jury, the City's Public Art Committee recommended the proposal by the Artist to develop and design lighting concepts for the installation of lighting to artistically enhance the architectural features of four bridges located within the City of Tampa, including Platt Street, Kennedy, Brorein and Cass Street (CSX), three of which are owned by entities other than the City of Tampa; WHEREAS, it is the desire of the City and the Artist to establish the terms and conditions under which the Artist will complete the design, the payment terms and responsibilities, as well as for the purpose of collaboration and cooperation between the parties. NOW, THEREFORE, in consideration of the mutual promises made herein and for other good and valuable consideration, receipt of which is hereby acknowledged by each party, the parties, intending to be legally bound, hereby agree as follows: 1. The Proiect. The City hereby engages the services of the Artist to develop and design lighting concepts for the future installation of lighting to artistically enhance the architectural features of four bridges located within the City of Tampa, including Platt Street, Kennedy, Brorein and Cass Street ( the "Artwork). 2. Scope of Services. (a) The Artist agrees to perform the scope of services provided for in Exhibit A, "Services to be Provided by Artist" attached hereto and by reference made a part hereof. (b) The Artist shall perform or provide all services and furnish all supplies, materials, and equipment necessary for the performance of its work under tits Contract. The Artist is responsible for the performance and work of Artist's subcontractors and personnel, and acquisition, at its own expense, of any required consents for access, permitting, licensing rights or other authorizations to complete the work under this contract. (c) To confirm the progress of the work of the Artist as it develops, the Art Programs Manager may meet with the Artist at mutually convenient times so that the Artist can provide an update of the Project. (d) The City is not a promotional agent for the Artist. However, the City will post information on the City's Art Programs website regarding the Project, pending budget, departmental scheduling, and general availability of space, location, etc.. The City's Art Programs staff will work with the Artist on collateral material and general project marketindawareness, such as a public television access highlight. (e) In addition to the present scope of services as set forth in Exhibit A, it is the general intent of the parties that Artist, using its lighting design, will complete the fabrication and installation of the Artwork at the selected bridge sites, provided that the City determines, in its sole discretion, to go forward with the fabrication and installation. The fabrication and installation by the Artist will be completed in a separately defined, successive stage ("Phase 11"). The scope of services as set forth in Exhibit A herein shall constitute Phase 1. The parties may modify this Agreement to include Phase 11. Each Phase shall be governed by this Agreement, and by any modifications to this Agreement setting forth specific terms and conditions governing each phase of work. By authorizing Phase I, Page 1 of 8

3 the City is not obligated to authorize Phase 11, said fabrication and installation by Artist. The Artist shall not incur any expenses in anticipation of commencing Phase I1 until modification of this Agreement to inciude Phase I1 In no event shail the City be liable for any claims or damages arising from the Artist's unauthorized actions. If requested to enter into a modification of this Agreement for Phase 11, Artist shall enter into such modification at City's option. The City must exercise its option to require Phase 11 within one year of completion of Phase 1. If the City fails to exercise its option, the Artist is released from its obligation under this section. The contract price for Phase I1 including all expenses and fees associated with fabrication, installation, materials, Artist's fee, etc... shall be that as provided to the City by Artist in its quoted price for fabrication and installation of the Artwork in Phase I. If the City determines to go forward with the fabrication and installation and the Artist is unable to perform said work for justifiable reason beyond the Artist's control as determined by the City, the City, at its sole option, may engage another artist to complete the fabrication and installation. (f) The City shall provide available plans and specifications of existing construction of bridge sites. The City makes no representation or guarantee of the accuracy of said plans and specifications Title. (a) All original sketches, tracings, drawings, computations, details, design calculations, specifications and other documents and plans that result fiom the Artist's services under this Agreement shall become and remain the property of the City upon receipt of payment by the Artist fiom the City for services rendered in connection with the preparation of said sketches, tracings, etc. Where such documents are required to be filed with governmental agencies, the Artist will hrnish copies to the City upon request. (b) The City acknowledges that the materials cited in Paragraph 3.(a) above, which are provided by the Artist, are not intended for use in connection with any project or purpose other than the Project and purpose for which such materials were prepared without prior written consent and adaptation by the Artist shall be at the City's sole risk, and the Artist shall have no responsibility or liability therefor. (c) Any use by the City of such materials in connection with a project or purpose other than that for which such materials were prepared without prior written consent and adaptation by the Artist shall be at the City's sole risk, and the Artist shall have no responsibility or liability therefore. 4. Independent Contractor. The Artist shall perform the services provided under this Contract as an independent contractor, and nothing contained herein shall in any way be construed to constitute the Artist or the assistants of the Artist to be a representative, agent, subagent, or employee of the City or any political subdivision of the State of Florida. The Artist certifies its understanding that the City is not required to withhold any federal income tax, social security tax, state and local tax, to secure workers' compensation insurance or employer's liability insurance of any kind, or to take any other action with respect to the Artist's officers and employees. 5. Time of Performance. The Artist shall perform and complete the Project on or before June 1, The City shall grant the Artist a reasonable extension of time in the event conditions beyond the Artist's control or Acts of God render timely performance of the Artist's services impossible or unreasonably burdensome. 6. Comoensation. The City shall pay the Artist the fixed price of Thirty Thousand and Dollars ($30,000.00) (the "Contract Price"), which shall constitute hll payment for all services performed and materials furnished by the Artist under tits Contract, including the Artist's fee. (a) The Contract Price shall be paid in the following installments: (1) Ten Thousand and Dollars ($10,000.00) of the Contract Price within forty-five (45) calendar days of the signing of tits Contract; (2) Ten Thousand and Dollars ($10,000.00) of the Contract Price within forty-five (45) calendar days of completion and written acceptance by the City's Art Programs Manager of the design development; Page 2 of 8

4 (3) Final payment of Ten Thousand and Dollars ($10,000.00) within forty-five (45) days of Artist's submittal of the Construction Documents to the City's Art Programs Manager on or before June 1,20 12, as required in tits Contract, and the City's receipt of the following: (a) The Artist's written certification of completion of the Project; (b) The Artist's written bill of sale conveying title to the City of the Project pursuant to Paragraph 3 herein; (c) (d) A notarized affidavit of no liens, claims, or other encumbrances; and Written acceptance of the Project by the Art Programs Manager; 7. Assignment, Transfer or Subcontracting. A material element of tits Contract is the personal skill, judgment and creativity of the Artist. Therefore, THE ARTIST GUARANTEES THAT THE CREATIVE AND ARTISTIC PORTIONS OF THE WORK TO BE PERFORMED UNDER TITS CONTRACT SHALL BE ACCOMPLISHED BY THE ARTIST. The Artist shall not assign, transfer, or subcontract the creative and artistic portions of the Project to another party without the prior written approval of the City. 8. Warranty of Title. The Artist warrants that the work covered by tits Contract shall be the result of the artistic efforts of the Artist. 9. Warrantv of Oualitv. The Artist warrants that the specifications produced within this Project will comply with any and all applicable federal, state and local codes, ordinances, laws and regulations. 10. Indemnification. (a) The Artist shall indemnify and hold free and harmless, assume legal liability for and defend, the City, its officers, employees, agents, and servants, whether they be current or former, from and against any and all actions, claims, liabilities, assertions of liability, losses, costs, and expenses, in law or in equity, including but not limited to, attorneys' fees at trial and appellate levels, reasonable investigative and discovery costs, court costs, or claims for infringement of intellectual property rights, bodily injury or death of persons and for loss of or damage to property, of every kind and nature whatsoever, which in any manner directly or indirectly may arise or be alleged to have arisen, or resulted or alleged to have resulted from the negligent acts or omissions or other wrongful conduct of the Artist, its subcontractors, employees, and agents in connection with the Artist's performance pursuant to tits Contract. (b) The Artist shall and does hereby assume all liability for and agrees to indemnify the City or its representatives against any or all loss, costs, damages, and liability for any or by reason of any lien, claims or demands, either for materials purchased or for work performed by Artist's subcontractors or others and from any damages, costs, actions, or causes of action and judgments arising from injuries sustained by other persons by reason of accidents or otherwise, to the extent caused by the negligence or breach of contract of said Artist, or its subcontractors, agents, employees, or workmen. 11. Risk of Loss. The Artist shall bear the full risk of loss or damage to the Project until all services have been completed and the Project is accepted by the City. 12. public it^ and News Releases. The Artist shall not, during the performance of this Contract, disseminate publicity or news releases regarding the Project without the prior written approval of the City. Furthermore, the Artist shall not exhibit any body of work commissioned from tits Project until completion of the Project and acceptance by the City's Art Programs Manager. 13. General Provisions. Page 3 of 8

5 (a) This Contract and any materials or documents made or received by the Artist in conjunction with tits Contract are subject to the provisions of Chapter 1 19, Florida Statutes. I (b) Invoices for fees or other compensation for services or expenses shali be submitted in detail sufficient for a proper preaudit and postaudit thereof. (c) The Artist agrees that the City or its designee reserves the right to audit, examine, and copy any and all books, records, electronic records and information relating to the Project. All records will be maintained for three (3) years following the term of the contract and until any audit is completed and all questions arising there from are resolved (d) The Artist represents that it has or will secure, at its own expense, all personnel required in performing the services under tits Agreement. All personnel engaged in the work shall be hlly qualified and shall be authorized or permitted under State and local law to perform such services. No person who is serving sentence in a penal or correctional institution shall be employed on work under tits Agreement. The Artist hther certifies that all of its employees assigned to serve the City have such knowledge and experience as required to perform the duties assigned to them. Any employee of the Artist who, in the opinion of the City, is incompetent, or whose conduct becomes detrimental to the work, shall immediately be removed from association with the certain services under tits Agreement. 14. Duration. Default and Termination. (a) This Contract shall take effect upon due execution of the parties and shall remain in effect until completion of the Project and acceptance by the City's Art Programs Manager of the final work set forth in Paragraph 2 of this Contract. All obligations relating to indemnity, warranties of title and quality will survive termination of this Contract. A party may terminate this Contract upon the other party's default in complying with any term or condition of tits Contract, as long as the terminating party is not in default of any term or condition of this Contract. To effect termination, the terminating party shall provide the defaulting party a written notice of termination stating its intent to terminate and describing the term and/or condition with which the defaulting party has failed to comply. If the defaulting party has not remedied the stated default within ten (10) days after receiving the notice of termination, this Contract shall automatically terminate. Termination shall not relieve the defaulting party from any liability or obligation for damage resulting fiom said party's default. (b) In the event the Artist is unable to proceed with the Project or in the event of a disability of the Artist to the extent that the Artist is unable to proceed with the Project in accordance with schedule set forth in Paragraph 5 and Exhibit A of this Contract, the City shall have the option of terminating this Contract upon ten (10) days advance written notice to the Artist or the Artist's agent or representative. If it is determined by the Artist and the City that the Project may be completed by a party chosen by the Artist and, following the Artist's instructions, such party agrees to accept the Artist's obligations hereunder, the City shall not terminate the Contract under this subsection. Notwithstanding such substitution, the Artist shall continue to be obligated hereunder. 15. Notice. A11 notices, requests, demands, and other communications that are required or may be given under this Contract shall be in writing and shall be deemed to have been duly given when received if personally delivered; when transmitted, if transmitted by fax or similar electronic transmission method; the day after it is sent, if sent by recognized expedited delivery service; and five days after it is sent, if mailed, first class or certified mail, return receipt requested, postage prepaid. In each case, notice shall be sent to the above address or to such other address as a party shall have specified by notice in writing to the other party. 16. Citv of Tampa Ethics Code. The Artist covenants and agrees that it shall comply with all applicable governmental laws, statutes, rules and regulations, including, without limitation the City of Tampa Code of Ethics that relate to tits Contract. Pursuant to section of the City of Tampa Code, if Artist fails to comply with the City of Tampa Ethics Code, such a failure shall render this Contract voidable by the City and subject Artist to debarment from any future City contracts. 17. Entire Contract. This Contract constitutes the entire Contract, and supersedes all prior Contracts and understandings, oral and written, between the parties with respect to the subject matter thereof. This Contract may not be amended or modified except by an instrument in writing signed by the parties to this Contract. Page 4 of 8

6 18. Severabilitv. If any provision of this Contract is contrary to, prohibited by, or deemed invalid by applicable laws or regulations of any jurisdiction in which it is sought to be enforced, then such provision shall be deemed inapplicable and omitted; but such omission shall not invalidate the remaining provisions of this Contract. 19. Successors and Assigns. Subject to the other terms of this Contract, this Contract shall inure to the benefit of and be binding upon the parties, their respective successors and assigns. The parties shall not assign tits Contract without the prior written consent of each other. 20. Governing Law and Venue. The validity, construction, and enforcement of, and the remedies under, this Contract shall be governed in accordance with the laws of the State of Florida. Venue for any legal action in federal or state court shall be in Tampa (Hillsborough County) Florida. 21. Authorization. Each party represents to the other that such has authority under all applicable laws to enter into an agreement containing each covenants and provisions as are contained herein, that all of the procedural requirements imposed by law upon each part for the approval and authorization of tits Agreement have been properly completed, and that the persons who have executed the Agreement on behalf of each party are authorized and empowered to execute said Agreement. 22. Com~liance with Laws. The Artist shall comply with all applicable laws, ordinances, and codes of the federal government, State of Florida, Hillsborough County, and the City of Tampa applicable to tits contract and the work performed hereunder. It shall be the responsibility of the Artist to be knowledgeable of all federal, state, county and local laws, ordinances, rules and regulations that in any manner affect the items covered herein which may apply. Failure to comply with all applicable laws, ordinances and codes may lead to termination of the contract. 23. Esto~pernaiver. No waiver of any provisions of tits Agreement shall be effective unless it is in writing, signed by the party against whom it is asserted and any such waiver shall only be applicable to the specific instance in which it relates and shall not be deemed to be a continuing waiver. The failure of the CITY to enforce any term or condition of tits Agreement shall not constitute a waiver or estoppel of any subsequent violation of tits Agreement. 24. Captions/Headines. The captionslheadings are inserted only as a matter of convenience and for reference and in no way define, limit, or describe the scope of this Agreement, not the intent of the content of any provision contained therein. IN WITNESS WHEREOF, the parties have caused tits Contract to be executed in triplicate by their authorized representatives on the day and year first above written. ATTEST: CITY OF TAMPA City ClerkfDeputy City Clerk WITNESSES: Bob Buckhorn, Mayor DEAR PRODUCTIONS INC. By: PREPARED BY AND APPROVED AS TO LEGAL SUFFICIENCY: By: Printed or Typed Name Title: Marcella Hamilton Page 5 of 8

7 Assistant City Attorney Page 6 of 8

8 EXHIBIT A Services to be Provided by Artist SCOPE OF WORK: Lighting designer, Dear Productions, Inc. will develop lighting concepts for the following four bridges located in the City of Tampa: Platt Street, Kennedy, Brorein and Cass. The scope of work under this design contract includes the development of the conceptual design, design development and construction documents for the Artwork. The City's Art Programs Manager must approve each phase of the design contract before the Artist proceeds to the next phase of the design. The City's Art Programs Manager may terminate the Agreement at any time for Artist's failure to obtain approval for each phase. The Artist shall make himself accessible to the City's Art Programs Manager and all communications shall be directed through the same or her designee. 1. Conceptual Design shall include: i) Drawings (in plan and elevation) and/or 3-dimensional models, proposed materials and samples, colors, finishes, the specific location and orientation of the work relative to the each site and a written description in sufficient detail so that Artist's design intent is clearly expressed. ii) Budget for the cost of fabrication, insurance, transportation and installation of the Artwork with documentation of the sources and/or assumptions upon which the budget figures are based regardless of whether such services are provided by the Artist, Artist's subcontractors or by third parties under a separate agreement. Budget shall also reflect the costs associated with any onsite project manager or staff. iii) Maintenance report describing the estimated maintenance requirements of the Artwork, including any manufacturer's warranties or specifications for the durability of any proposed materials. 2. Design Development shall include: i) Design development shall further refine the elements of the conceptual design. ii) Design Development shall include presentation quality materials, which shall include colored drawings or computergenerated color images (in plan and elevation) and/or 3-dimensional models that accurately reflect the Artwork and how it will be installed at the sites, mock-ups, final color and materials samples, proposed fabrication methods, feasibility studies and final cost estimates at design completion. Said documents shall describe the size and character of the Artwork with respect to its relationship to each site, including architectural, structural, mechanical and electrical systems, materials and other elements which may be appropriate. iii) Artist and Artist's structural engineer and fabricator shall review all design development drawings, materials and documents for consistency and constructability, and report any engineering, structural concerns, or constructability concerns to the City. Modifications to the design necessitated by tits review shall be submitted and approved by the City's Art Programs Manager prior to the beginning of Construction Documents and incorporated therein. iv) As part of the design development documents, the Artist shall provide to the City a general maintenance plan for the Artwork. With a description of future anticipated maintenance requirements; a recommended maintenance schedule, anticipated and required care and/or equipment including any staff time involved; and written instruction and manufacturer's specifications for reasonably foreseeable maintenance and preservation activities relative to the Artwork. Artist shall also provide to the City a description of all equipment and/or machinery needed to operate the Artwork (if applicable) and any associated staffing needs. The Artwork must be durable taking into consideration that the sites are unsecured public spaces that are exposed to elements such as weather, temperature variation, traffic. 3. Construction Documents shall include: i) Artist shall deliver final and complete architectural, structural, mechanical and engineering drawings, written specifications, structural and engineering calculations, and energy compliance forms at 100% design completion, prepared by Artist or Artist's subcontractors, setting forth in detail the design and specifications of the Artwork. Construction documents should describe and fix the location, size, materials and character of the Artwork with respect to architectural, structural engineering, mechanical and electrical systems, materials, colors, methods of attachment and fabrication methods, and other such Page 7 of 8

9 elements as may be appropriate. Construction documents must be signed and stamped by design professionals licensed pursuant to State of Florida law as applicable under state law and applicable codes, ordinances and regulations. During all phases ofthis contract, Artist shall be responsible for obtaining all necessary consents to access the sites, penits and licensing. The above scope of work is summarized as follows: Develop initial lighting design Develop conceptual lighting design Develop preliminary fixture specifications Develop preliminary fixture cost estimates Mock up of conceptual lighting design Review preliminary lighting design with structural engineers Provide photographs of conceptual mock up lighting design Develop revised lighting design concept Mock up revised lighting design concept Revise and develop fixture specifications Revise and develop cost estimates Review design developments with structural engineers Provide final lighting plans Provide complete fixture specifications and details Provide complete energy compliance forms Schedule of performance: January Execution of design contract February Conceptual Design March Design Development June Submittal of Construction Documents Page 8 of 8

10 RESOLUTION NO A RESOLUTION MAKING CERTAIN CHANGES IN THE BUDGET OF THE CITY OF TAMPA FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 2012; APPROVING THE TRANSFER, REALLOCATION AND/OR APPROPRIATION OF $30,000 WITHIN THE PUBLIC ART TRUST AND CAPITAL IMPROVEMENT PROJECT FUNDS FOR EXPENSES ASSOCIATED WITH THE PUBLIC ART PROGRAM; PROVIDING AN EFFECTIVE DATE. WHEREAS, additional revenue or unappropriated surplus, or funds previously appropriated which are no longer needed for their original purpose, are available for transfer, reallocation andlor appropriation to accounts within the Public Art Trust and Capital Improvement Project Funds, and such transfer, reallocation andlor appropriation is for a necessary municipal purpose; Now, Therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF TAMPA, FLORIDA, THAT: Section 1. The transfer, reallocation andlor appropriation of the sum of $30,000 within the Public Art Trust and Capital Improvement Project Funds, as set forth below, are hereby approved. PUBLIC ART TRUST FUND Anticipated Revenue: AIC: ED Fund Balance Transfer To: AIC: ED3061 7AD-09 1 UC Transfer to Utility Tax Capital Improv Fund $30,000 CAPITAL IMPROVEMENT PROJECT FUND Anticipated Revenue: A/C: NDO Transfer from Public Art Fund Appropriate In: A/C: AD5032E Public Art-Dear Productions Section 2. The changes in the Budget of the City of Tampa for the fiscal year ending September 30, 2012, as herein authorized, shall take effect immediately upon the adoption of this Resolution by the City Council and the approval thereof by the Mayor.

11 Section 3. The proper officers of the City of Tampa are hereby authorized and empowered to do all things necessary to carry out and make effective the provisions of this Resolution, which shall take effect immediately upon its adoption. n \ PASSED AND ADOPTED by the City Coun il oft e City of Tampa, Florida, on JAN 2 $2012 ATTEST: CHAIRMAN -, CITY COUNCIL APPROVED by me this a APPROVED AS TO LEGAL SUFFICIENCY: SALVATORE TERRITO CHIEF ASSISTANT CITY ATTORNEY K \Resos\FY 12\5927Ejp doc