Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK
AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK THIS AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK MADE AND entered into this 18th day of March, 2009 by and between Christopher Fennell (hereafter called the "ARTIST") whose address is 5104 Clairmont Avenue South, Birmingham, Alabama 35222 and the CITY OF CLEARWATER, FLORIDA, a municipal corporation of the State of Florida, located at 112 South Osceola Avenue, Clearwater, FL 33756 (hereafter called the "CITY"). WITNESSETH: WHEREAS, the CITY has implemented the Clearwater Public Art and Design Program (hereafter called the "PROGRAM") pursuant to ORDINANCE NO. 7489-05 by allocating not less than one percent (1%) of the total construction budget of eligible capital improvement projects for the purchase and installation of on-site public artwork; and WHEREAS, the City of Clearwater Fire Station 48 Training Facility is an eligible capital improvement project subject to PROGRAM requirements; and WHEREAS, the ARTIST was selected by the CITY through an open Call to Artists procedure adopted by the CITY to commission the ARTWORK, as described in EXHIBIT "A"; and WHEREAS, the ARTIST wishes to create a unique ARTWORK valued at $48,000.00 to be installed in a public space outside the Fire Station located at 1700 North Belcher Road, Clearwater, FL 33765; and WHEREAS, the ARTIST and CITY wish to undertake the obligations expressed herein; Now, WHEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, it is hereby agreed by and between the parties as follows: 1. RECITALS The foregoing recitals are incorporated into and made a part of this AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK, and the parties acknowledge and agree that such recitals are true and correct. 2. TERM OF AGREEMENT 2.1. Duration This AGREEMENT shall be effective on the date that this contract has been signed by both parties, and, unless terminated earlier pursuant to such provisions in the AGREEMENT, shall extend until submission of final payment to the ARTIST by the CITY under the Schedule of Performance of Services attached as EXHIBIT "B". Extension of time of performance hereunder may be granted upon the request of one party and the consent of the other thereto, which consent shall not be unreasonably withheld. Such extension shall be in writing, signed by both parties, and attached to the Schedule of Performance of Services attached as EXHIBIT "B". 3. SCOPE OF SERVICES 3.1. ARTIST Obligations 3.1.1. The ARTIST shall perform all services and furnish all supplies and materials as necessary for the design, fabrication, and installation of the ARTWORK at the SITE in accordance with the specified Schedule of Performance of Services attached as EXHIBIT "B". Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this AGREEMENT. 3.1.2. The ARTIST shall determine the artistic expression, design, dimensions, and materials of the ARTWORK, subject to review and acceptance by the CITY as set forth in this AGREEMENT. To ensure that the ARTWORK as installed shall not interfere with the intended use of the SITE, pedestrian and other traffic flow, parking, and safety devices and procedures at the SITE, the ARTIST'S proposal shall be reviewed and approved by applicable CITY departments such as Engineering, Fire Department, and others, and, where appropriate, the project architect to ensure compliance with these objectives. 3.1.3. The ARTIST will prepare structural drawings detailing the ARTWORK and its integration and relation to the SITE. As determined by the CITY, the ARTIST shall provide to the CITY certification from a qualified, licensed engineer that the ARTWORK will be of adequate structural integrity (including foundation loads, wind loads, and potential live loads) to ensure the safety and welfare of the CITY and its officers, employees, agents, servants, and the general public. Such drawings will conform to all applicable federal, state, and local laws and regulations. 3.1.4. The ARTIST represents that the ARTWORK is made of durable material and will withstand the usual weather and climate in the area. 3.1.5. The ARTIST shall prepare the design concept described in EXHIBIT "A" of this AGREEMENT. The Artwork Desigrn Concept and Specifications attached as EXHIBIT "A" shall include a description of all materials and products utilized in the ARTWORK. 3.1.6. The ARTIST shall prepare a corresponding budget described in Artwork Budget attached as EXHIBIT "C". 3.1.7. The ARTIST shall complete the fabrication of the ARTWORK by the scheduled installation date as provided in Schedule of Performance of Services attached as EXHIBIT "B" of this AGREEMENT. 3.1.$. The ARTIST, using the ARTIST'S own personnel and equipment is fully responsible for the costs and handling involved in the delivery of the ARTWORK to the SITE. The ARTIST shall arrange the transportation of the ARTWORK and the installation of the ARTWORK at the SITE. If the ARTIST does not install the ARTWORK himself or herself, the ARTIST shall supervise and approve the installation. 3.1.9. The ARTIST shall provide required insurance in amounts and limits as specified in Section 12, INSURANCE of this AGREEMENT. 3.1.10. The ARTIST shall provide a list of all subcontractors along with a copy of the agreement between the ARTIST and each subcontractor, including certificates of insurance as specified in Section 12, INSURANCE of this AGREEMENT. 3.1.11. The ARTIST shall provide a scheduled maintenance manual with a description of all materials and products utilized in the ARTWORK and the required care and upkeep involved, included in substantially the form attached hereto as the Schedule of Artwork Maintenance attached as EXHIBIT "D". 3.1.12. The ARTIST shall provide photographic documentation of the ARTWORK. 3.1.13. The ARTIST shall supply the CITY with a written condition report of the ARTWORK after installation. 3.1.14. The ARTIST shall be available with reasonable advance notice for pre- arranged meetings, ceremonies and the like, as necessary. 3.2. CITY Obligations 3.2.1. The CITY shall be responsible for providing the ARTIST copies of existing designs, drawings, reports, list of required permits, and other existing relevant data, if any, which is needed by the ARTIST in order to perform the services listed in this AGREEMENT. 3.2.2. The CITY shall be responsible for compliance with all applicable laws and regulations, including but not limited to, zoning or environmental regulations and will provide the required permits for the installation of the ARTWORK. 3.2.3. The CITY shall prepare the SITE in accordance with the specifications detailed in the approved design concept in Section 4, DESIGN of this AGREEMENT. The CITY shall be responsible for all expenses, labor, and equipment as necessary to prepare the SITE for the timely transportation and installation of the ARTWORK. The CITY shall complete the SITE preparations by the scheduled installation date as provided in Schedule of Performance of Services attached as EXHIBIT "B" of this AGREEMENT or shall contact the ARTIST in writing informing him or her of any delays. 3.2.4. The CITY shall coordinate and arrange for the ARTIST'S installation of the ARTWORK at the SITE as provided in Schedule of Performance of Services attached as EXHIBIT "B" of this AGREEMENT. 3.2.5. The CITY shall provide and install a plaque on or near the ARTWORK containing a credit to the ARTIST as provided in Nameplate Details attached as EXHIBIT "E" of this AGREEMENT. 3.2.6. The CITY shall routinely clean and maintain the ARTWORK after final acceptance of the ARTWORK and will abide by the recommendations described and included in substantially the form attached hereto as the Schedule of Artwork Maintenance attached as EXHIBIT "D". 4. DESIGN 4.1. Concept/Schematic 4.1.1. The ARTIST was selected pursuant to a competition organized for the procurement of an artist to design and fabricate an ARTWORK suitable for the current project. Within thirty (30) days of the execution of this AGREEMENT, the ARTIST shall submit to the CITY the design concept (the "DESIGN") in the form of materials including, but not limited to, detailed color drawings, models, and/or other documents as are required to present a meaningful representation of the ARTWORK. 4.1.2. The ARTIST shall visit, examine, research, and consider the SITE and its surrounding area. If applicable, the ARTIST shall also consult with representatives from the CITY and the community and consider their input and concerns. 4.1.3. The DESIGN will include: a description of the method by which the ARTWORK is to be fabricated and installed; a description of any operational, maintenance, and conservation requirement for the ARTWORK; a description of the integration and placement of the ARTWORK at the SITE and any preparations that may be required by the CITY including, but not limited to, any changes or modifications to any utility system or structure of the SITE as necessary. The CITY makes no representations that utility systems or structures will be modified to accommodate ARTWORK and retains sole discretion to modify same. 4.1.4. The DESIGN must provide sufficient detail to permit the CITY to assure compliance with all applicable federal, state, and local laws, ordinances and/or regulations. 4.2. Approval 4.2.1. Within thirty (30) days after the ARTIST submits the DESIGN, the CITY - shall notify the ARTIST in writing whether it approves or disapproves of the DESIGN. The CITY shall have discretion in approving outright or with conditions, or rejecting the DESIGN. The CITY shall notify the ARTIST of any revisions to the DESIGN as are necessary for the ARTWORK to comply with any applicable federal, state, and local laws, ordinances and/or regulations and other reasons including, but not limited to, ensuring the physical integrity of the ARTWORK or its installation at the SITE. If agreed upon by both parties, such revisions will become a part of the accepted DESIGN. 4.2.2. If the CITY disapproves of the DESIGN, the CITY will submit to the ARTIST in writing the reasons for such disapproval. In such event, the ARTIST will submit a REVISED DESIGN within thirty (30) days after the CITY has notified the ARTIST of its disapproval. The ARTIST will not be paid an additional fee for the REVISED DESIGN. 4.3. Redesign 4.3.1. The REVISED DESIGN will reflect changes made to address the CITY'S stated reasons for disapproval, as well as any adjustments in the budget or schedule that may be necessary. The CITY shall. notify the ARTIST in writing whether it approves or disapproves of the REVISED DESIGN within thirty (30) days after the ARTIST submits the REVISED DESIGN. 4.3.2. If the ARTIST refuses to revise the DESIGN pursuant to the CITY' S stated reasons for disapproval or if the ARTIST fails to adequately revise the DESIGN in the judgment of the CITY, this AGREEMENT shall terminate and the parties shall be under no further obligation to each other as of the date of such termination. The effective date of termination shall be thirty (30) days following the date the CITY submits its written disapproval of the REVISED DESIGN to the ARTIST. The CITY shall submit to the ARTIST a written termination notice with the disapproval. The termination notice shall advise the ARTIST that this AGREEMENT has been terminated pursuant to this article. The termination notice shall notify the ARTIST that the ARTIST is entitled to retain the compensation paid prior to the termination date, and that the parties are under no further obligation to each other. The termination notice shall confirm that the ARTIST shall retain ownership of all DESIGNS, REVISED DESIGNS, and renderings thereof submitted hereunder. 4.4. Final/Construction Documents 4.4.1. The ARTIST shall prepare structural drawings detailing every physical feature of the construction of the ARTWORK and its integration with the SITE. These drawings and supplementary documents shall indicate any issues involved in the construction, integration, and maintenance of the ARTWORK, as well as any third party subcontractors needed to work on the project. The CITY will require that any structural drawings be certified by a qualified engineer, licensed by the State of Florida and paid by the ARTIST as part of the design cost, stating that the ARTWORK will be of adequate structural integrity (including foundation loads, wind loads, and potential live loads) to ensure the safety and welfare of the CITY and its officers, employees, agents, servants, and the general public. Such drawings will conform to all applicable federal, state, and local laws and regulations. The ARTIST shall provide the CITY with such certification, signed and stamped by the licensed engineer. 4.4.2. The ARTIST shall present to the CITY recommendations on the scheduled maintenance of the ARTWORK included in substantially the form attached hereto as the Schedule of Artwork Maintenance attached as EXHIBIT "D". 5. BUDGET AND SCHEDULE 5.1. Budget 5.1.1. The ARTIST shall prepare a budget, which shall include all goods, services and materials, with such costs itemized, including, but not limited to costs for: materials and applicable sales tax; off-site fabrication costs; ARTIST'S time invested in coordination, fabrication, and supervision of installation; fees for required licenses, permits, and similar legal authorizations; fees for the labor of assistants; itemized general contractor and subcontractor fees, if applicable; consultants' or experts' fees (such as engineers, architects or others) if applicable; insurance; ARTIST'S travel; transportation of the ARTWORK to the SITE; itemized installation costs; any applicable local, state, or federal taxes; and a ten-percent (10%) contingency to cover any unforeseen costs that may arise. This budget will be described as Artwork Budget _ attached as EXHIBIT "B" of this AGREEMENT. 5.1.2. Calculation of the budget will take into consideration the possible inflation of service and material costs between the date of execution of this Agreement and the anticipated completion date. 5.1.3. The ARTIST shall keep a log of the ARTIST'S project hours and shall retain all original receipts pertaining directly to the project. 5.1.4. If the ARTIST incurs costs in excess of the amount listed in the budget, the ARTIST shall pay such excess from the ARTIST'S own funds unless the ARTIST previously obtained approval for such costs from the CITY. 5.2. Schedule 5.2.1. The ARTIST shall notify the CITY of the tentative schedule for the fabrication and installation of the ARTWORK, including a schedule for the submission of progress reports and inspections, if any. The schedule may be amended by written agreement and is described in the Schedule of Performance of Services attached as EXHIBIT "B" of this AGREEMENT. 5.2.2. A schedule for the payment of budget installments is described in the Schedule of Performance of Services attached as EXHIBIT "B" of this AGREEMENT. 6. FABRICATION 6.1. The ARTIST shall fabricate and install the ARTWORK in substantial conformity with the approved DESIGN. The ARTIST may not deviate from the approved DESIGN without written approval of the CITY. 6.2. The ARTIST shall take reasonable measures to protect or preserve the integrity of the ARTWORK such as the application of protective anti-graffiti coatings, if applicable, unless the CITY disapproves. If the ARTWORK is being constructed on-site, the ARTIST shall avoid creating nuisance conditions arising out of the ARTIST'S operations. If the ARTWORK is being constructed off site, prior to requesting authorization to transport and install the ARTWORK, the ARTIST shall be required to provide the CITY with a list of all workers or subcontractors and equipment to be used along with the hours of operation and the scope of work to be performed on site. All additional workers or subcontractors must provide proof of insurance prior to entering the SITE. 6.3. The CITY shall have the right to review the ARTWORK at reasonable times during the fabrication thereof upon reasonable notice. 6.4. If the CITY, upon review of the ARTWORK, determines that the ARTWORK does not conform to the DESIGN or REVISED DESIGN, the CITY reserves the right to notify the ARTIST in writing of the deficiencies and that the CITY intends to withhold the next budget installment as described in Schedule of Performance of Services attached as EXHIBIT "B" of this AGREEMENT. 6.5. The ARTIST will promptly cure the CITY'S objections and will notify the CITY in writing of completion of the cure. The CITY shall promptly review the ARTWORK, and upon approval shall release the next budget installment as per the Schedule of Performance of Services attached as EXHIBIT "B" of this AGREEMENT. If the ARTIST disputes the CITY'S determination that the ARTWORK does not conform, the ARTIST shall promptly submit reasons in writing to the CITY within thirty (30) days of the CITY'S prior notification to the contrary. The CITY shall make reasonable efforts to resolve the dispute with the ARTIST in good faith. However, a final determination as to whether the ARTIST has complied with the terms of this AGREEMENT shall remain with the CITY. 6.6. The ARTIST shall notify the CITY in writing when fabrication of the ARTWORK has been completed, and that the ARTWORK is ready for delivery and installation at the SITE if the ARTWORK was fabricated off-site. The artist shall include photographs to certify that the artwork has been completed. 6.7. The CITY shall inspect the ARTWORK within thirty (30) days after receiving notification pursuant to Para rah 6.6, prior to installation, to determine that the ARTWORK conforms to the DESIGN and to give final approval of the ARTWORK. The CITY shall not unreasonably withhold final approval of the fabricated ARTWORK. In the event that the CITY does withhold final approval, the CITY shall submit the reasons for such disapproval in writing within fifteen (15) days of examining the fabricated artwork. The ARTIST shall then have thirty (30) days from the date of the CITY'S notice of the disapproval to make the necessary adjustments to the fabricated ARTWORK in accordance with such writing. The ARTIST shall not be penalized for any delay in the delivery and installation of the ARTWORK to the SITE under this paragraph unless the ARTIST has willfully and substantially deviated from the DESIGN without the prior approval of the CITY. The ARTIST shall then be held responsible for any expenses incurred in correcting such deviation. 6.8. The CITY shall promptly notify the ARTIST of any delays impacting installation of the ARTWORK. Any additional storage fees incurred as a result of such delays are the responsibility of the CITY. The ARTIST shall be required to inspect the SITE prior to the transportation and installation of the ARTWORK and shall notify the CITY of any adverse SITE conditions that will impact the installation of the ARTWORK which are in need of correction. 7. CHANGES TO APPROVED DESIGN 7.1. Prior to the execution of any change in the approved DESIGN, the ARTIST shall present proposed changes in writing to the CITY for further review and approval. The ARTIST must provide a detailed description of any significant changes in the artistic expression, design, dimensions and materials of the ARTWORK that is not permitted by, nor in substantial conformity with, the already approved DESIGN. Such notice will also include a detailed description of any additional costs that may be incurred or changes in the budget. A significant change is any change which materially affects installation, scheduling, site preparation or maintenance of the ARTWORK or the concept of the ARTWORK as represented in the DESIGN. 7.2. If the CITY approves the changes, the CITY shall promptly notify the ARTIST in writing. 7.3. If the CITY disapproves of the changes, the CITY shall promptly notify the ARTIST in writing and the ARTIST shall continue to fabricate the ARTWORK in substantial conformity with the DESIGN. 7.4. The ARTIST'S fee shall be equitably adjusted for any increase or decrease in the ARTIST'S cost of, or time required for, performance of any services under this AGREEMENT as a result of revisions made to the DESIGN, at the request of the CITY, under Section 7. CHANGES TO APPROVED _ DESIGN of this AGREEMENT. Any claim of the ARTIST for adjustment under this paragraph must be asserted within thirty (30) days after the date of revision by the ARTIST. 8. INSTALLATION 8.1. Upon the CITY'S final approval of the fabricated ARTWORK, as being in conformity with the DESIGN, the ARTIST shall deliver and install the completed ARTWORK to the SITE in accordance with the schedule provided for in the Schedule of Performance of Services attached as EXHIBIT "B". Transportation fees shall be paid by the ARTIST. 8.2. The ARTIST will coordinate closely with the CITY to ascertain that the SITE is prepared to receive the ARTWORK. The ARTIST must notify the CITY of any adverse conditions at the SITE that would affect or impede the installation of the ARTWORK. The ARTIST is responsible for timely installation of the ARTWORK as per the Schedule of Performance of Services attached as EXHIBIT "B". The ARTIST will confer and coordinate with the CITY to ensure timely coordination with the CITY'S construction team. The ARTIST may not install the ARTWORK until authorized to do so by the CITY. 8.3. The ARTIST shall be present to coordinate and supervise the installation of the ARTWORK. 8.3.1. Upon installation of the ARTWORK, the ARTIST shall provide the CITY with full written instructions for the appropriate maintenance and preservation of the ARTWORK, included in substantially the form attached hereto as the Schedule of Artwork Maintenance attached as EXHIBIT "D" along with product data sheets for any material or finish used. The ARTWORK must be durable, taking into consideration that the SITE is an unsecured public space that will be exposed to elements such as weather, temperature variation, and considerable movement of people and equipment. The ARTIST must ensure that all maintenance requirements will be reasonable in terms of time and expense. Upon acceptance, the CITY is responsible for proper care and maintenance of the ARTWORK. 9. APPROVAL AND ACCEPTANCE 9.1. The ARTIST shall notify the CITY in writing when all services as required by this AGREEMENT prior to this paragraph have been completed in substantial conformity with the DESIGN as included in substantially the form attached hereto as the Certification of Completion and Installation attached as EXHIBIT «P9.2. The CITY shall promptly notify the ARTIST of its final acceptance of the ARTWORK within thirty (30) days after the ARTIST has submitted written notice pursuant to Paragraph 9.1 above. The effective day of final acceptance shall be the date the CITY submits written notice to the ARTIST of its final acceptance of the ARTWORK. The final acceptance shall be understood to mean that the CITY acknowledges completion of the ARTWORK in substantial conformity with the DESIGN, and that the CITY confirms that all services as required of both parties by this AGREEMENT prior to this Section 9, APPROVAL AND ACCEPTANCE have been completed, included in substantially the form attached hereto as the Approval and Acceptance of Artwork attached as EXHIBIT "G". Title to the ARTWORK passes to the CITY upon final acceptance and final payment for services rendered as part of this AGREEMENT. 9.3. If the CITY disputes that all the services have been performed, the CITY shall notify the ARTIST in writing of those services the ARTIST has failed to perform within fifteen (15) days after the ARTIST submitted written notice pursuant to Parajaraph 9.1 above. The ARTIST shall promptly perform those services indicated by the CITY. 9.4. If the ARTIST disputes the CITY'S determination that not all services have been performed the ARTIST shall submit reasons in writing to the CITY within fifteen (15) days of the CITY'S prior notification to the contrary. The CITY shall make reasonable efforts to resolve the dispute with the ARTIST in good faith. However, final determination as to whether all services have been performed shall remain with the CITY. 9.5. Upon the resolution of any disputes that arise under Section 9, APPROVAL AND ACCEPTANCE of this AGREEMENT, the CITY shall notify the ARTIST of its final acceptance of the ARTWORK pursuant to Paragraph 9.2. 9.6. After final acceptance of the ARTWORK, the ARTIST shall be available at such times as may be mutually agreed upon by the CITY and the ARTIST to attend any public meetings and community outreach functions, as well as any inauguration or presentation ceremonies relating to the dedication of the ARTWORK. 9.6. 1. During such public presentations by the ARTIST, the ARTIST shall acknowledge the CITY'S role in funding the ARTWORK. 9.6.2. The CITY shall be solely responsible for coordinating public information materials and activities related to public presentations. 10. TAXES 10.1. Any state or federal sales, use or excise taxes, or similar charges relating to the services and materials under this AGREEMENT shall be paid by the ARTIST in a timely fashion. The CITY shall report payments made to the ARTIST annually to the Internal Revenue Department in a 1099 statement. 11. RISK OF LOSS 11.1. The ARTIST shall bear the risk of loss or damage to the ARTWORK including, but not limited to: theft; vandalism or any act by a third party; and damage caused by acts of god, war, or natural conditions/disasters including, but not limited to, floods, hurricanes, tornadoes, lightning, and any loss occurring during the fabrication, storage, transportation, delivery, and installation regardless of where such loss occurs until the CITY'S fmal acceptance of the ARTWORK under Section 9 APPROVAL AND ACCEPTANCE. The ARTIST shall take such measures as are reasonably necessary to protect the artwork from loss or damage. 12. INSURANCE 12.1. General 12.1.1. The ARTIST acknowledges that until final acceptance of the ARTWORK by the CITY under Section 9 APPROVAL AND ACCEPTANCE, any injury to property or persons caused by the ARTWORK or any damage to, theft of, vandalism to, or acts of God affecting the ARTWORK are the sole responsibility of the ARTIST, including, but not limited to, any loss occurring during the creation, storage, transportation, delivery, and installation of the ARTWORK, regardless of where such loss occurs. 12.1.2. Terms for the procurement and duration of insurance and required insurance policies follow below. 12.2. Required Insurance 112.1. The ARTIST shall place and maintain for the periods prior to and during the installation of the ARTWORK, and pay the cost thereof the following insurance policies: 12.2.1.1. Worker's Compensation and Employer's Liabil t Insurance: If the ARTIST has employees, the ARTIST shall procure and maintain statutory Worker's Compensation Insurance and Employer's Liability Insurance with limits of no less than $500,000 per occurrence for the jurisdiction where the work is being performed and shall provide a waiver of subrogation against the CITY. If the ARTIST has no employees as defined by Florida Statues and Regulations the ARTIST shall submit a letter stating that he or she is exempt from this requirement. 12.2.1.2. General Liabili .Insurance: The ARTIST shall procure and maintain General Liability Insurance, with limits of not less than $1,000,000 per occurrence, Combined Single Limit for Bodily Injury and Property Damage, including Contractual Liability, Personal Injury, Projects and Completed Operations. The ARTIST shall obtain such insurance prior to transporting or installing the ARTWORK at the SITE and name the CITY as an additional insured on the policy. 12.2.1.3. Automobile Liability Insurance: The ARTIST shall purchase and maintain Automobile Liability Insurance with limits of $500,000 including coverage for owned, non-owned, and hired vehicles as applicable. Such coverage shall remain in force for those times in which a vehicle is used for transportation, installation, modification, repair or removal of the ARTWORK. 12.3. Certificates of Insurance The ARTIST shall, prior to the execution of this AGREEMENT, provide certificates of insurance evidencing Worker's Compensation, Employer's Liability, General Liability, and Automobile Liability prior to the installation of the ARTWORK. If any insurance policy is due to expire during the period of installation, the ARTIST shall provide a certificate of renewal evidencing the required insurance coverage to the CITY not less than fifteen (15) days prior to the expiration date. 13. INDEMNIFICATION 13.1. The ARTIST agrees to indemnify and hold free and harmless, assume legal liability for and defend the CITY and its officers, employees, agents, and servants, whether they are current or former, from and against 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 bodily injury or death of persons and for loss or damage to property, except as provided for herein, of every kind and nature whatsoever, which in any manner directly or indirectly may arise or be alleged to have arisen, from the fabrication, transportation, and installation of the ARTWORK as a result of the duties and obligations as required by this AGREEMENT or that which has resulted or alleged to have resulted from the negligent acts or omissions or other wrongful conduct of, or the infringement of any copyright by, the ARTIST and/or its subcontractors, employees, and agents in connection with the ARTIST' S performance pursuant to this AGREEMENT. 13.2. Each party shall immediately notify the other of any written claim regarding any matter resulting from or relating to the party's obligations under this AGREEMENT. Each party shall cooperate, assist, and consult with the other in the defense or investigation of any such claim arising out of or relating to the performance of this AGREEMENT. 13.3. This indemnification shall survive the termination or expiration of this AGREEMENT. 14. WARRANTIES OF QUALITY AND CONDITION 14.1. The ARTIST represents that all work will be performed in accordance with professional "workmanlike" standards and free from defective or inferior materials and workmanship (including any defects consisting of "inherent vice," or qualities that cause or accelerate deterioration of the ARTWORK for one (1) year after the date of final acceptance by the CITY, included in substantially the form attached hereto as the Certificate of Warran attached as EXHIBIT "J" under Section 9 APPROVAL AND ACCEPTANCE- 14.2. The ARTIST represents and warrants that the ARTWORK and the materials used are not currently known to be harmful to public health and safety. 14.3. The ARTIST represents and warrants that reasonable maintenance of the ARTWORK will not require procedures substantially in excess of those described in the maintenance and preservation recommendations submitted by the ARTIST pursuant to the item included in substantially the form attached hereto as the Schedule of Artwork Maintenance attached as EXHIBIT "D". 14.4. The ARTIST shall provide the CITY with a parts list and a written description of the regular cleaning and maintenance needs of the ARTWORK. Routine cleaning and maintenance of the ARTWORK shall be the responsibility of the CITY. The ARTIST shall be available for consultation on maintenance and repair throughout the ARTIST'S lifetime. 14.5. If within one (1) year the CITY observes any breach of warranty described in this Section 14 WARRANTIES OF QUALITY AND CONDITION that is curable by the ARTIST, the ARTIST shall, at the request of the CITY, cure the breach promptly, satisfactorily and consistent with professional conservation standards, at no expense to the CITY. The CITY shall give notice to the ARTIST of such breach with reasonable promptness. 14.6. If within one (1) year the CITY observes a breach of warranty that is not curable by the ARTIST, the ARTIST is responsible for reimbursing the CITY for damages, the expenses and loss incurred by the CITY as a result of the breach. 14.7. If after one (1) year the CITY observes any breach of warranty that is curable by the ARTIST, the CITY shall contact the ARTIST to make or supervise repairs or restorations at a reasonable fee during the ARTIST'S lifetime. The ARTIST shall have the right of first refusal to make or supervise repairs or restorations. Following ninety (90) days of attempted communication, should the ARTIST be unavailable or unwilling to accept reasonable compensation under the industry standard, the CITY may seek the services of a qualified restorative conservator and maintenance expert. 14.8. Acceptable Standard of Display. The ARTIST represents and warrants that: 14.8.1. General routine cleaning and repair of the ARTWORK and any associated working parts and/or equipment will maintain the ARTWORK within an acceptable standard of public display. 14.8.2. Forseeable exposure to the elements and general wear and tear will cause the ARTWORK to experience only minor repairable damages and will not cause the artwork to fall below an acceptable standard of public display. 14.8.3. With general routine cleaning and repair, and within the context of forseeable exposure to the elements and general wear and tear, the ARTWORK. will not experience irreparable conditions that do not fall within an acceptable standard of public display, including mold, rust, fracturing, staining, chipping, tearing, abrading, and peeling. 14.8.4. To the extent the ARTWORK. incorporates products covered by a manufacturer's warranty, the ARTIST shall provide copies of such warranties to the CITY. 15. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 15.1. Title 15.1.1. Title to the ARTWORK shall pass to the CITY upon the CITY'S written final acceptance and payment for the ARTWORK pursuant to Section 9. APPROVAL AND ACCEPTANCE and Schedule of Performance of Services attached as EXHIBIT "B" of this AGREEMENT. The ARTIST shall provide the CITY with a Bill of Sale and Transfer of Title in substantially the form attached hereto as EXHIBIT "11"; and Affidavit of No Liens in substantially the form attached hereto as EXHIBIT "I". 15.2. Ownership of Documents 15.2.1. One set of presentation materials prepared and submitted under this AGREEMENT shall be retained by the CITY for possible exhibition and to hold for permanent safekeeping. 15.3. Copyright Owners 15.3.1. The ARTIST retains all rights under the Copyright Act of 1976, 17 U.S.C. § 101 et seq., as the sole author of the ARTWORK for the duration of the copyright. 15.4. Reproduction Rights 15.4.1. The ARTIST grants to the CITY and its assigns an irrevocable license to make two-dimensional reproductions of the ARTWORK for non- commercial purposes, including, but not limited to, reproductions used in brochures, media publicity, and exhibition catalogues or other similar publications provided that these rights are exercised in a tasteful and professional manner. 15.4.2. All reproductions by the CITY shall contain a credit to the ARTIST and a copyright notice in substantially the following form: Copyright [ARTIST'S name, date of publication]. 15.4.3. The ARTIST shall, at the ARTIST'S expense, cause to be registered with the United States Register of Copyrights, a copyright in the ARTWORK in the ARTIST'S name. 15.4.4. If the AGENCY wishes to make reproductions of the ARTWORK for commercial purposes, including, but not limited to, tee shirts, post cards and posters, the parties shall execute a separate agreement to address the terms of the license granted by the ARTIST and the royalty the ARTIST shall receive. 15.4.5. Third Party Infrin e? The CITY is not responsible for any third party infringement of the ARTIST'S copyright and not responsible for protecting the intellectual property rights of the ARTIST. 16. ARTIST'S RIGHTS 16.1. General 16.1.1. The ARTIST retains all rights under state and federal laws including §106A of the Copyright Act of 1976. 16.1.2. The CITY agrees that it will not intentionally alter, modify, change, destroy, or damage the ARTWORK without first obtaining permission from the ARTIST. 16.2. Alterations of Site or Removal of Artwork 16.2.1. The CITY shall notify the ARTIST in writing upon the adoption of a plan of construction or alteration of the SITE which would entail removal or relocation of the ARTWORK which might result in the ARTWORK being destroyed, distorted, or modified. The ARTIST shall be granted the right of consultation regarding the purchase, removal or relocation of the ARTWORK. If the ARTWORK cannot be successfully removed or relocated as- determined by the CITY, the ARTIST may disavow the ARTWORK or have the ARTWORK returned to the ARTIST at the ARTIST'S expense. 16.2.2. The ARTWORK may be removed or relocated or destroyed by the CITY should the ARTIST and the CITY not reach mutual agreement on the removal or relocation of the ARTWORK after a period not to exceed ninety (90) days after written notice to the ARTIST. During the ninety (90) day period, the parties shall engage in good faith negotiations concerning the ARTWORK'S removal or relocation. 15.2.3. In the event of changes in building codes or zoning laws or regulations that cause the ARTWORK to be in conflict with such codes, laws or regulations, the CITY may authorize the removal or relocation of the ARTWORK without the ARTIST's prior permission. In the alternative, the CITY may commission the ARTIST by a separate agreement to make any necessary changes to the ARTWORK to render it in conformity with such codes, laws or regulations. 15.2.4. If the CITY reasonably determines that the ARTWORK presents imminent harm or hazard to the public, other than as a result of the CITY'S failure to maintain the ARTWORK as required under this AGREEMENT, the CITY may authorize the removal of the ARTWORK without the prior approval of the ARTIST. 17. DEFAULT AND TERMINATION 17.1. Default Failure or refusal of the ARTIST to perform or do any act herein required shall constitute a default. In the event of a default, in addition to any other remedy available to the CITY, the CITY, upon thirty (30) days written notice may terminate this contract. Such termination does not waive any other legal remedies available to the CITY. 17.2. Termination 17.2.1. Either parry may terminate this AGREEMENT where performance is rendered impossible or impractical for reasons beyond such party's reasonable control such as, but not limited to, acts of nature; war or warlike operations; governmental regulation or control; public emergency; or strike or other labor disturbance. Notice of termination of this AGREEMENT shall be given to the non-terminating party in writing not less than thirty (30) days prior to the effective date of termination. 17.2.2. The CITY may terminate this agreement without cause upon thirty (30) days written notice to the ARTIST. The CITY shall pay the ARTIST for services performed consistent with the schedule included as EXHIBIT "B" of this AGREEMENT. 17.2.3. If either party to this AGREEMENT shall willfully or negligently fail to fulfill in a timely and proper manner, or otherwise violate any of the covenants, agreements, or stipulations material to this AGREEMENT, the other party shall thereupon have the right to terminate this AGREEMENT by giving written notice to the defaulting party of its intent to terminate, specifying the grounds for termination. The defaulting party shall have thirty (30) days after the effective date of the notice to cure the default. If it is not cured by that time, this AGREEMENT shall terminate. 17.3. Force Majeure The CITY shall grant to the ARTIST a reasonable extension of time in the event that conditions beyond the ARTIST'S control render timely performance of the ARTIST'S services impossible or unduly burdensome. All such performance obligations shall be suspended for the duration of the condition. Both parties shall take all reasonable steps during the existence of the condition to assure performance of their contractual obligations when the condition no longer exists. Failure to fulfill contractual obligations due to conditions beyond either party's responsible control will not be considered a breach of contract, provided that such obligations shall be suspended only for the duration of such conditions. 17.4. Death or Incapacity 17.4.1. If the ARTIST becomes unable to complete this AGREEMENT due to death or incapacitation, such death or incapacity will not be deemed a breach of this AGREEMENT or a default on the part of the ARTIST for the purpose of Section 17, DEFAULT AND. TERMINATION. However, nothing in this Section shall obligate the CITY to accept the ARTWORK. 17.4.1.1. In the event of incapacity, the ARTIST shall assign the ARTIST'S obligations and services under this AGREEMENT to another artist provided that the CITY, in the CITY'S sole discretion, approves of the new artist. Alternatively, the CITY may elect to terminate this AGREEMENT. Should the CITY terminate this AGREEMENT the ARTIST shall retain all rights under Section 15, OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS and Section 16, ARTIST'S RIGHTS. The ARTWORK and any reproductions thereof shall contain a credit to the ARTIST and a copyright notice in substantially the following form: Copyright © [ARTIST'S name, date of publication]. 17.4.1.2. In the event of death, this AGREEMENT shall terminate effective the date of death. Should the AGREEMENT terminate due to the ARTIST'S death, the ARTIST'S heirs shall retain all rights under Section 15, OWNERSHIP AND INTELLECTUAL_ PROPERTY RIGHTS and Section 16, ARTIST'S RIGHTS 18. MISCELLANEOUS 18.1. Entirety of Agreement This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. No alteration, change, or modification of the terms of this AGREEMENT shall be valid unless made in writing and signed by both parties hereto. 18.2. Record The CITY shall maintain on file a record of this AGREEMENT and of the location and disposition of the ARTWORK. 18.3. Nondiscrimination The CITY nor the ARTIST shall not discriminate, in any way, against any person on the basis of race, sex, color, age, religion, sexual orientation, disability, ethnicity, or national origin, in connection with or related to the performance of this AGREEMENT. 18.4. Captions The captions of each paragraph and headings hereof are added as a matter of convenience and shall be construed to be of no affect in the construction of any provision or provisions hereof. 18.5. Notices Any notices regarding this AGREEMENT given by either party to the other must be in writing and shall be deemed to have been given, delivered or made, as the cause may be (I) when delivered in fact, by personal delivery, or (11) five (5) business days after having been deposited in the U.S. mail, certified or registered, return receipt requested, with sufficient postage affixed and prepaid or (III) one (1) business day after having been deposited with an expedited overnight courier service (such as by way of example but not limited to: U.S. Express Mail, Federal Express, or UPS), addressed to the party to whom notice is intended to be given at the address set forth below: If to the CITY: City Manager City of Clearwater 112 South Osceola Avenue Clearwater, FL 33756 If to the ARTIST: Christopher Fennell 5104 Clairmont Avenue S. Birmingham, AL 35222 Any party may change the address to which its notices are to be sent by giving the other party written notice of any changes in the manner provided herein, but notice of change of address if effective only upon actual receipt. 18.6. CITY' S Authority The CITY warrants that it has all required authority to enter into this AGREEMENT and to be bound by the terms hereof. 18.7. ARTIST'S Authori The ARTIST warrants that it has obtained all necessary authority through official action of its officers and directors, if necessary, to enter into this AGREEMENT and to be bound by the terms hereof. 18.8. Surviving Covenants The covenants and obligations set forth in this AGREEMENT shall survive the design, fabrication, transportation, and installation of the ARTWORK, unless otherwise provided for herein and shall be binding upon the parties, its heirs, legatees, executors, administrators, assigns, transferees, and all its successors in interest. 18.9. In a retation This AGREEMENT shall be interpreted under and in accordance with the laws of the State of Florida. 18.10. Construction of A eement This AGREEMENT shall not be construed more strictly against one party than against another merely by virtue of the fact that it may have been prepared by one of the parties, it being acknowledged that both the ARTIST and the CITY have substantially and materially contributed to the preparation thereof. 18.11. Severability If any provision of this AGREEMENT 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 omissions shall not invalidate the remaining provisions of this AGREEMENT. 18.12. Further Assurances The parties shall promptly execute all documents reasonably required and take such other steps in addition to the execution of this AGREEMENT to effectuate the intent and purpose of this AGREEMENT. IN WITNESS THEROF, the parties hereto have caused this AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK to be executed on the date first above written. CITY OF CLEARWATER, FLORIDA By: William B. Horne II City Manager Approved as to form: Attest: L? Laura Mahony Assistant City Attorney Cyk thia E. Goudeau City Clerk C? rlle P Witness: Christopher Fennell By: CA Its: C r Concept and Concept A 22'tall sculpture made from decommissioned aluminum ladders curved into a fireball. Red, orange and yellow lights will be lit within the sphere at night. Name of fallen firefighter will be etched on the post at eye level using a rubber mask and a sandblaster. Construction Method Build a 8'sphere out of wood. Use cardboard to build a prototype. Take it apart to use as a pattern. With this pattern cut out ladder sides from 6061 Aluminum plate 1/8"thick using a plasma cutter. Weld these pieces together, bending them to fit the wood sphere. Weld in the salvaged rungs. Add edges to the ladders out of 1"aluminum strap. Remove wood sphere. Weld the ladders to each other. Fabricate a base dish out of steel. Bolt the aluminum section to the base dish. Fasten the lights to the base dish. Cut a steel pipe and weld to it a base plate. Add brackets to the top of the pipe. Pour concrete pad. Wait a month for concrete to cure. Drill mounting holes in concrete. Epoxy in the anchor bolts. Raise pole and bolt on. chris@cfennell.org Use a crane to place ladder portion on top of pole. cfennell.org Bolt it on and wire it up. 202.236.1217 Schedule of Performances of Services for Fire chris@cfennell.org cfennell.org 202.236.1217 5104 Clairmont Ave S Birmingham AL 35222 Aluminum extension ladders welded together into a 22' tal? Sculpture. Pick up decommissioned ladders. Build sculpture. Pour concrete slab on site. Install sculpture. Finish paperwork. Ap ri 12009 October 2009 December 2009 January 2010 February 2010 Proposed Site of SCLAIPWI-e. Travel Budget for Fire Station #48 5104 Clairmont Ave S Birmingham AL 35222 Site visits $900 Truck exp 564mi (.48$/mi)4trips $1083 Crane rental $1600 Trailer rental $900 Lodging/Per diem $1400 Materials/Fa brication Welding Consumables $2057 Steel $2200 Aluminum 6061 $3300 Fastners $850 Small eqipment rental $500 Epoxy $390 Lighting $3000 Labor to Construct $9600 Labor to Install $1920 Concrete Slab $4000 Design Design Fee $1600 Structural Engineering Drawings $2000 Geotech Survey $1500 Overhead Studio Rental $4000 Insurance $400 Contingency $4800 chris@cfennell.org Total $48000 cfennell.org 202.236.1217