AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK (2)
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AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK
THIS AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK MADE AND
entered into this 30th day of October, 2009 by and between C Glass Studio, LLC
(hereafter called the "ARTIST") whose address is 515 22nd Street South, Unit E, St.
Petersburg, FL 33712 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 and its
amendment ORDINANCE NO. 8026-09 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 Beach Recreation Center and Library facility is an
eligible capital improvement project subject to PROGRAM requirements; and
WHEREAS, the ARTIST was selected by the CITY through an Limited Local 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 $8,108.00 to
be installed in a public space inside the Clearwater Beach Recreation Center and Library
located at 51 Bay Esplanade, Clearwater, FL 33767; and
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WHEREAS, the ARTIST and CITY wish to undertake the obligations expressed herein;
Now, THEREFORE, 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".
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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 "Boo. 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, Risk Management, and others, and, where
appropriate, the project architect to ensure compliance with these objectives.
3.1.3. The ARTIST will prepare drawings detailing the ARTWORK and its
integration and relation to the SITE. 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.
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3.1.5. The ARTIST shall prepare the design concept described in EXHIBIT "A"
of this AGREEMENT. The Artwork Design 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.
3.1.8. 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, unless otherwise agreed by both parties. The
ARTIST shall arrange the transportation of the ARTWORK and shall
supervise and approve the installation ofthe ARTWORK at the SITE.
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 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".
3.1.11. The ARTIST shall provide photographic documentation of the
ARTWORK.
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3.1.12. The ARTIST shall supply the CITY with a written condition report of the
ARTWORK after installation.
3.1.13. The ARTIST shall be available with reasonable advance notice for pre-
arranged meetings, ceremonies and the like, as necessary for the period of
one year following the installation of the ARTWORK at the SITE.
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.
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3.2.4. The CITY shall coordinate and arrange with the ARTIST for the
installation of the ARTWORK at the SITE as provided in Schedule of
Performance of Services attached as EXHIBIT "B" ofthis 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" ofthis 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. The ARTIST has submitted 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 has visited, examined, researched, and considered the SITE
and its surrounding area. The ARTIST shall also consulted with
representatives from the CITY and the community and consider their input
and concerns.
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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.
4.1.5. 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".
4.2. Approval
4.2.1. The ARTIST has submitted the DESIGN, the CITY has notified the
ARTIST in writing of its approval of 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
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SITE. If agreed upon by both parties, such revisions will become a part of
the accepted DESIGN.
5. BUDGET AND SCHEDULE
5.1. Budget
5.1.1. The ARTIST shall prepare a budget, which shall include costs for: gross
materials and applicable sales tax; ARTIST'S time invested in coordination,
fabrication, and supervision of installation; fees for required licenses,
permits, and similar legal authorizations; 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. 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. A schedule for the payment of budget installments is described in the
Schedule of Performance of Services attached as EXHIBIT "B" of this
AGREEMENT.
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6. FABRICATION
6.1. The ARTIST shall fabricate and supervise the installation of the ARTWORK in
substantial conformity with the approved DESIGN.
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.
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
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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. 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 Paragraph 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 as a result of modifications to the
DESIGN requested by the CITY.
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
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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 substantial 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 in significant & 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, unless mutually agreed upon by both
parties.
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
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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 supervise the
installation of the completed ARTWORK to the SITE in accordance with the
schedule provided for in the Schedule of Performance of Services attached as
EXHIBIT "B".
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, and any applicable CITY representatives or
subcontractors are 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.
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
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ARTWORK must be durable, taking into consideration that the SITE is an
public space that will be exposed to elements such as 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 as included in
substantially the form attached hereto as the Certification of Completion and
Installation attached as EXHIBIT "F".
9.2. The CITY shall promptly notify the ARTIST of its approval of the completed
ARTWORK within thirty (30) days after the ARTIST has submitted written
notice pursuant to Paragraph 9.1 above.
9.3. The effective day of final acceptance of the ARTWORK shall be the date of the
delivery of the completed ARTWORK to the CITY at the SITE. The final
acceptance shall be understood to mean that the CITY acknowledges completion
of the ARTWORK 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".
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9.4. If the CITY disputes that all the services have not 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 Certification of Completion and Installation attached as EXHIBIT
"F" and Paragraph 9.1 above. The ARTIST shall promptly perform those
services indicated by the CITY.
9.5. 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.
9.6. Upon the resolution of any disputes that arise under Section 9, APPROVAL
AND ACCEPTANCE ofthis AGREEMENT, the CITY shall notify the ARTIST
of its final acceptance of the ARTWORK pursuant to Approval and Acceptance
of Artwork attached as EXHIBIT "Goo and Paragraph 9.3.
9.7. 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 within a reasonable time frame of one year.
9.7.1. During such public presentations by the ARTIST, the ARTIST shall
acknowledge the CITY'S role in funding the ARTWORK.
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9.7.2. The CITY shall be solely responsible for coordinating public information
materials and activities related to public presentations.
10. TAXES
10.1. Should 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, and delivery regardless of where
such loss occurs until the CITY'S final 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,
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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
12.2.1. 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 Comvensation and Emvlover's Liability 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 Liability 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,
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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.
12.3. Certificates ofInsurance
The ARTIST shall, prior to the execution of this AGREEMENT, provide certificates
or exemptions of insurance evidencing Worker's Compensation and General 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
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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 standards and free from defective or inferior materials and
fabrication (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 Warranty attached as EXHIBIT "J".
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
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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 reasonable 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 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, to be paid by the CITY. 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
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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. 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.
14.8.2. To the extent the ARTWORK incorporates products covered by a
manufacturer's warranty, the ARTIST shall provide copies and transfer any
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,
APPROV AL 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 "H".
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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 permanent safekeeping.
15.3. Copyright Ownership
15.3.1. The ARTIST retains all rights under the Copyright Act of 1976, 17 U.S.c.
S 101 et seq., as the sole author of the ARTWORK.
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 <D
[ARTIST'S name, date of publication].
15.4.3. If the CITY 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.
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15.4.4. Third Party Infringement: 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
S106A ofthe 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
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(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.
16.2.3. 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.
16.2.4. 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.
[23]
17.2. Termination
17.2.1. Either party 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 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 Maieure
The CITY shall grant to the ARTIST a reasonable extension oftime in the
event that conditions beyond the ARTIST'S control render timely
[24]
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
ofthis 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
[25]
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,
[26]
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 (1) when delivered in fact, by personal
delivery, or (II) 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:
Catherine Woods
C Glass Studio, LLC
515 22nd St. S.
Unit E
St. Petersburg, FL 33712
[27]
. , .
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 Authority
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. Interpretation
This AGREEMENT shall be interpreted under and in accordance with the
laws of the State of Florida.
18.10.
Construction of Agreement
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
[28]
, l. ,
18.11.
18.12.
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.
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.
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.
[29]
I ,., .
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:~!d. ~J1:
William B. Home II
City Manager
Approved as to form:
Attest:
Witness:
"
r-)J 0UL
,
Laura Mahony
Assistant City Attorney
~o
Its:
[30]
. . .
EXHIBIT A
ARTWGRK DESIGN CONCEPT AND SPECIFICATIONS
Design Concept: See attached document (Ex. A-i)
Description of Artwork:
The artwork entitled "Color Droplets" consists of laminated glass ellipses designed and fabricated by
artist Catherine Woods. The components of the artwork are created using arced forms that are a design
signature of the artist and will adorn the three glass panels that are located above the entrance to the
Clearwater Beach Library component ofthe facility. The artwork will be applied to the existing glass
panels using a lamination process that utilizes CR Laurence Water Clear Silicone (WCS) and will resist
temperature fluctuations that are inherent to the facility and will require a minimum amount of
maintenance over the life of the artwork.
The installation will consist of brightly hued glass elements that will be applied to both sides of the
existing glass panels. These elements are designed to make use of natural and fluorescent lighting at
the facility and will enliven the space shared between the Recreation Center and Library.
. , .
EXHIBIT B
SCHEDULE OF PERFORMANCE OF SERVICES AND PAYMENT
September, 2009
Finalize and sign contract
Initiate invoice to City of Clearwater
First dispersal of f
$2,027 (25% of pr
October - November, 2009
Begin full-scale design concept
November - December, 2009
Finalize design concept with City review
December, 2009 - January, 2010
Remove glass panels from CBRC facility and deliver to C Glass
Studio in St. Petersburg, FL
January, 2010
City review of placement of colored el
Second dispersal of funds $1,621.60 (2
s prior to lamination
of project budget)
January - February, 2010
Laminate colored ellipses to pre-existing glass panels
completed artwork to CBRC facility
c ted artwork at CBRC facilit
I of funds $2,027 (25% of
j ~, .
EXHIBIT C
BUDGET FOR ARTWORK
Budget for "Color Droplets" designed and fabricated by artist Catherine Woods
Valued at $8,100.00
Materials
$4,000.00
Artist Design
$1,500.00
Production Fee
$1,500.00
Fabrication
$2,108.00
TOTAL
$8,108.00
~ . .
EXHIBIT D
ARTWORK MAINTENANCE SCHEDULE
General Maintenance Requirements:
Clean on the same schedule as other interior windows of facility. Do NOT use acetone products as they
are detrimental to the laminate materials.
The artist recommends CRL Sprayway glass cleaner, available from C R Laurence.
(order number Cat. No. S50).
Windex may also be used, but will not clean as efficiently.
The glass elements are water-jet cut and are applied to the facility's original glass windows with Water
Clear Silicone, a produce from C R Laurence, a major supplier to the North American Glass industry.
(CRL WCS Water Clear Silicone, Cat. No. WCS1).
Cleaning supplies can be purchased from:
C R Laurence
http://www.crlaurence.com
1-800-421-6144
C R Laurence of Miami
Phone: (954) 846-9233
Fax: (954) 846-9277
CRL Sprayway glass cleaner - Cat. No. S50
CRL WCS Water Clear Silicone - Cat. No. WCS1
. f. .
EXHIBIT E
NAMEPLATE AND PLAQUE INFORMATION
The nameplate and plaque information will read as follows:
Color Droplets
Catherine Woods
St. Petersburg, Florida
Installed in February, 2010 as part of the
Clearwater Public Art and Design Program
. . ".
EXHIBIT F
CERTIFICATE OF COMPLETION
Clearwater Public Art and Design Program
Project: Clearwater Beach Recreation Center and Library
Artwork: Color Droplets by Catherine Woods (St. Petersburg, FL)
This certifies that the artwork entitled "Color Droplets" has been completed, in significant form to the
design, by artist Catherine Woods of C Glass Studio (515 22nd Street South, Unit E, St. Petersburg, FL
33712).
Catherine Woods, Artist
Date
City of Clearwater Representative
Date
Witness
Date
.. , . .
EXHIBIT G
CERTIFICATE OF APPROVAL AND ACCEPTANCE
Clearwater Public Art and Design Program
Project: Clearwater Beach Recreation Center and Library
Artwork: Color Droplets by Catherine Woods (St. Petersburg, FL)
This certifies that the artwork entitled "Color Droplets" has been completed, in significant form to the
design, by artist Catherine Woods of C Glass Studio (515 22nd Street South, Unit E, St. Petersburg, FL
33712).
The City of Clearwater, then, hereby accepts the artwork entitled "Color Droplets" into its Public Art and
Design Program collection through the purchase of the above titled artwork.
Catherine Woods, Artist
Date
City of Clearwater Representative
Date
Witness
Date
. t. . ..
EXHIBIT H
Bill OF SALE AND TRANSFER OF TiTlE
TBD
. ;,l i .,
EXHIBIT I
AFFADAVIT OF NO LIENS
This exhibit certifies that there are no liens against the artwork entitled "Color Droplets" designed and
fabricated by artist Catherine Woods of C Glass Studio (515 22nd Street South, Unit E, St. Petersburg, FL
33712).
Catherine Woods, Artist
Date
City of Clearwater Representative
Date
Witness
Date
... . ..
EXHIBIT J
CERTIFICATE OF WARRANTY
By signing below, Catherine Woods of C Glass Studio (515 22nd Street South, Unit E, St. Petersburg, FL
33712) certifies that as the designer and fabricator of the artwork entitled "Color Droplets" that the
artwork is hereby under warranty and is guaranteed against defects in workmanship for the period of
one year commencing on the date noted below.
Date of initiation of warranty
Catherine Woods, Artist
Date
City of Clearwater Representative
Date
Witness
Date