DISPLAY OF A WORK OF ART AT HARBORVIEW CENTER
AGREEMENT FOR DISPLAY OF A WORK OF ART
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THIS AGREEMENT is made and entered into this ~ day of (~
2003, by and between the City OF CLEARWATER ("City"), Florida, a municipal
corporation, located at 112 Osceola Avenue, Clearwater, Florida 33756-5103, (the "City")
and the OUTDOOR ARTS FOUNDATION ("Foundation"), located at P.O. Box 323, Safety
Harbor, Florida 34695-0323.
WHEREAS, the City welcomes and encourages proposals for the display of art that
enhance the community and complement its buildings, grounds, and natural features; and
WHEREAS, the Foundation supports and encourages the arts through the display of
artwork; and
WHEREAS, it is the desire of City and Foundation to establish the terms and
conditions under which a Work of Art shall be installed and displayed by the City.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties to this Agreement agree as follows:
ARTICLE 1. DEFINITIONS
1.1 Agreement - This document, Articles 1 through 14, and other terms and
conditions which are included in the exhibits and documents that are
expressly incorporated by reference.
1.2 Artist - The creator of the Work of Art that is the subject of this Agreement.
1.3 Foundation - The Outdoor Arts Foundation.
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1.4 City - The City Of Clearwater, Florida.
1.5 Site - A site deemed appropriate by the parties for placement of the Work of
Art, located in Clearwater, Florida.
1.6 Work or Work of Art - Any Work of Art displayed under this Agreement.
ARTICLE 2. SCOPE OF SERVICES
2.1 Work Described. The City has approved the display of a Work of Art ("Work"),
under the terms herein, to be installed and attached to the Harborview Center, Clearwater,
Florida (the "Site"). The Work consists of a 32' by 48' reproduction of a painting originally
created by Jim Warren, which will be displayed on the south side of the Harborview Center.
The Foundation, through its independent agreement with the Artist, has determined the
artistic expression, scope, size, material, texture, color, location and method offabrication
ofthe Work which has been reviewed and accepted by the City as shown in Exhibit "A."
2.2 City Res/Jonsibilities. The Foundation agrees to deliver the Artwork to the City
at City Hall. The City agrees to then transport the Artwork to the Site, using the City's own
personnel and equipment, and place the same for display on the south side of the building
in accordance with the specifications provided by the Foundation, and detailed in Exhibit
"B", attached hereto and made a part hereof. The City reserves the right to refuse
installation and display of the Artwork if the specifications so provided do not, in the City's
sole discretion, meet minimum requirements guaranteeing the safety of its employees or
the public.
2.3 Foundation Res/Jonsibilities. Foundation shall furnish any necessary
engineering review, specifications, designs, structural support, materials and hardware
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necessary for the installation of the Artwork.
1. Foundation agrees that the Work does not utilize any protected patent,
trademark, or copyright unless Foundation has obtained proper permission
and all releases and other necessary documents and shall provide such
documentation to the City upon execution of this agreement. If the Work of
Art displayed uses any protected material, process, or procedure,
Foundation shall disclose such patent, trademark, or copyright in the
construction drawings and technical specifications (Exhibit "A").
2. Foundation represents that the Work requires no routine care, maintenance,
and preservation, and as such, has no associated costs for such care,
maintenance and preservation.
3. Foundation and Work shall comply with all city, county, state and federal
regulations, laws and ordinances.
ARTICLE 3. DISPLAY
3.1 Consideration. The City shall display the Work for the cultural enrichment and
beautification of the downtown area of Clearwater.
3.2 Acceptance for Disp/av. Work of Art shall be deemed accepted for display
once the Foundation has executed this Agreement and provided the City with the following:
i. executed Agreement of Inspection and Approval of Installation,
after having provided specifications for such installation, (see
Exhibit "B" attached hereto and incorporated herein).
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ii. a written warranty pursuant to this Agreement.
3.3 DisDlav of Artwork. During the term, as provided for herein, the City shall
display the Artwork for public viewing without charge or any admission or similarfee.
The City reserves the right to refuse to display or remove the Artwork, if in the city's
sole discretion, the Artwork constitutes a distraction or danger to the public, or
degrades the functionality or structural integrity of the Site. In any event the Site or
property surrounding the Site become damaged, compromised, or suffer a
hazardous condition as a result of the display, as determined by the City in its sole
discretion, the City may immediately remove Artwork using its own resources. The
Foundation shall be responsible for and any and all damage to the structure,
property or Site caused as a result of the installation, display or removal of the
Artwork.
ARTICLE 4. TIME OF PERFORMANCE
4.1 Time of Performance Described. Work of Art shall be completed and available
for display by the date indicated in this Agreement, or the City, at its sole discretion,
reserves the right to terminate this Agreement and refuse to display the Work as provided
for herein.
4.4 Failure to Fulfill Obliaations. Except as otherwise provided herein, failure to fulfill
obligations due to conditions beyond either party's reasonable control will not be
considered a breach of contract provided that such obligations shall be suspended only for
the duration of such conditions.
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ARTICLE 5. GENERAL CONDITIONS
5.1 Incapacity of Foundation. In the event of the dissolution or other incapacitating
event of Foundation to the extent it is unable to proceed with the Work in accordance with
the Agreement, this Agreement shall become null and void and the parties hereto shall be
relieved of any and all duties and obligations hereunder.
5.2 Publicity and News Releases. The City shall be included in all public relations
and marketing efforts associated with the Work. The Foundation shall not, during the
performance of this Agreement, disseminate publicity or news releases regarding the Work
without prior written approval of City.
ARTICLE 6. WARRANTIES
6.1 Warranty of Quality. The Foundation warrants that the Work shall be free of
defects in material and workmanship and that the Foundation shall correct any such
defects which appear during display, at the Foundation's expense.
ARTICLE 7. TITLE AND COPYRIGHT
7.1 Title. Title to the Work shall remain in the Artist, its successors or assigns, but
at no time shall title pass to the City as a result of the agreement to display as described
herein. The Work of Art shall remain the sole property of the Artist, its successors or
assigns, including, but not limited to, copyrights under the Copyright Act of 1976, 17 U.S.C.
SS101 et. seq., as amended, or any and all rights provided for by the Visual Artist's Rights
Act of 1990 (Section 106A of the United States Copyright Act; as amended, unless
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otherwise granted by the Artist to any other party. All future decisions regarding the use
and continued ownership of such property will be within the sole and unconditional
discretion of the Artist, its successors or assigns.
ARTICLE 8. RISK OF LOSS AND INSURANCE
8.1 Risk of Loss. The risk of loss or damage to the Work shall be borne by the
Foundation at all times, and the Foundation shall take such measures as are necessary to
protect the Work from loss or damage.
8.2 Damaqe to Work. Should the Work be damaged in any way, the City shall not
have any liability or responsibility for the replacement or repair of the Work.
8.3 Insurance. The Foundation acknowledges the value of the Artwork is Twenty-
Four Hundred Dollars ($2,400). The Foundation acknowledges that the City will not
provide any insurance coverage for the Artwork while the Artwork is in the possession or
custody of the City pursuant to the terms hereof. The Foundation waives any and all
subrogation rights against the City for any damage to, destruction of, theft of, loss of, or
other casualty to the Artwork while the Artwork is in the possession or custody of the City
pursuant to the terms hereof.
ARTICLE 9. INDEMNIFICATION AND RELEASE
9.1 Indemnification. Foundation 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 any and all actions, claims,
liabilities, assertions of liability, losses, costs and expenses, in law or in equity, including
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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 of
or damage to property, of every kind and nature whatsoever, which in any manner directly
or indirectly may arise or be alleged to have arisen, or resulted or alleged to have resulted
from the negligent acts or omissions or other wrongful conduct of or the infringement of any
copyright by the Foundation and/or its subcontractors, employees, and agents in
connection with Foundation's performance pursuant to this Agreement.
9.3 Notice. The parties each agree to give the other party prompt notice, as
provided for herein (13.1), of any claim coming to its knowledge that in any way directly or
indirectly affects the other party.
9.4 Release. The Foundation represents that no third party will perform, fulfill, or in
any other way be involved in the performance of the Foundation's obligations hereunder,
and the Foundation does hereby release, remise, satisfy, quit claim and forever discharge
the City from any and all actions, claims and demands that Foundation ever had, now has
or may have or that any person claiming through the Foundation may have against the City
as a result of, arising out of or in connection with this Agreement except those directly
resulting from a breach of this Agreement by City.
ARTICLE 10. MAINTENANCE, RESTORATION AND REMOVAL
10.4 Alteration of the Work. The City agrees that it will not intentionally alter,
modify or change the Work.
10.5 Removal of Work. The City and the Foundation have the right to provide for
the removal the Work from the Site for any reason with thirty (30) days written notice to the
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other party, as provided for herein.
10.7 Notice to Foundation for Removal of Work. City will notify the Foundation of
any proposed action to remove the Work from the Site. In the event the Foundation fails,
within thirty (30) days of receipt of such notice to participate in the planning for the removal
of the Work, City shall have the right to proceed with the removal of the Work. Thereafter,
the City shall hand deliver the Work or return via certified mail to the address provided
herein for notice. In the event that the City determines, in its sole discretion, that the Work
has caused a hazardous condition, the City may remove the Work without notice to the
Foundation.
ARTICLE 11. DEFAULT AND TERMINATION
11.1 Default Defined. The failure of either party to comply with any provisions of
this Agreement shall place that party in default.
11.2 Default: Notice of Termination. Either party shall have the right to terminate
this Agreement with thirty (30) days prior notice, except as otherwise provided herein, and
the non-defaulting party shall notify the defaulting party in writing stating specifically the
provisions which are alleged to give rise to the default.
11.3 Default bv Foundation. If the City terminates this Agreement pursuant to this
Article before final acceptance of the Work by the City, Foundation shall forfeit any rights
under this Agreement.
11.4 Default bv City. If the Foundation terminates this Agreement pursuant to this
Article, the City shall forfeit any rights provided by this Agreement.
11.5 Waiver. The failure of either party to exercise this right shall not be construed
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as a waiver to such a right.
ARTICLE 12. SPECIAL CONDITIONS
12.1 None.
ARTICLE 13. NOTICE TO PARTIES
13.1 Notice of Documents. All notices required under the terms of this Agreement
shall be sent to the following:
If to City:
If to Foundation:
William B. Horne, II
City Manager
City OF Clearwater
P.O. Box 4748
Clearwater, FL 33756-5103
Jason Goulde
Executive Director
Outdoor Arts Foundation
P.O. Box 323
Safety Harbor, FL 34695-0323
13.2 Chanqe of address. Notice of change of address of Foundation may be made
by sending notice that specifically and clearly identifies this Agreement by certified mail to
the address provided herein for the City with a copy to the City Clerk and the City
Attorney's Office.
13.3 Failure to Notifv City of Chanqe of Address. If Foundation fails to notify City of
change of address, the Foundation waives all rights that are granted in this Agreement that
require notice.
ARTICLE 14. MISCELLANEOUS
14.1 Entiretv of Aqreement. This writing embodies the entire agreement and
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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 the Agreement shall be valid unless made in writing and signed by both parties hereto.
14.2 Survivina Covenants. The covenants and obligations set forth in this
Agreement shall survive the delivery, installation, and removal of the Work and shall be
binding upon the parties, his heirs, legatees, executors, administrators, assigns,
transferees, and all his successors in interest.
14.3 Severabilitv. 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.
14.4 Captions. The captions are inserted only as a matter of convenience and for
reference, and in no way define, limit, nor describe the scope of this Agreement, nor the
intent or content of any provision contained herein.
14.5 Waiver. No waiver of any provision of this Agreement or any breach thereof
shall be construed as a continuing waiver or shall constitute a waiver of any other provision
or breach.
14.6 Law and Forum. This Agreement shall be construed under the laws of the
State of Florida, and any action arising hereunder shall be brought in Pinellas County,
Florida, or, if in Federal Court, the Middle District of Florida, Tampa Division.
14.7 Construction. Should any provision of this Agreement require judicial
10
interpretation, the court interpreting or construing the same shall not construe it against one
party more strictly by reason of the rule of interpretation that a document is to be construed
more strictly against the party who itself or through its agents prepared the same, as each
party has participated in the preparation of this Agreement and each party consulted with
independent legal counsel of its own selection or waived its right to do so prior to the
execution of this Agreement.
14.9 Incorporation bv Reference. Exhibit A, Exhibit "B", Warranty, Agreement of
Inspection and Approval of Installation, are upon their execution by a party to this
Agreement incorporated into and made a part of this Agreement.
14.10 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.
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IN WITNESS WHEREOF, the parties hereto have executed these presents for the
purposes herein expressed.
w... ()U1',,~\.(. 4~1~ ~AJ?'l1Z,J
e, Executive Director
STAT F FLORIDA )
o TY OF PINELLAS )
:;) f'- &
. The foregoing instrument was acknowledged before me this ~ day of
, 2003, by ~ ~~ , who is personally known to me or who
reduced as identific'o nd who did not take an oath.
NOTARY PUBLIC:
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State of Florida
My Commission No.:
(D ANNEJ.GREEN
MY COMMISSION # DO 119437
EXPIRES: May 20. 2006
'-8OO-3-NOTARY FL NoI81)1 Service & ..__~,
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Countersigned:
CITY OF CLEARWATER, FLORIDA
BY~'~
William B. Horne
City Manager
.~~'
Laura Lipows~
Assistant City Attorney
Attest:
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. WCynlhia E. GOU~/~, :
1 City Clerk --:,.. ..:> -"-"" _-.'"
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Approved as to form:
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Exhibit "A"
To include:
Description/drawing of work
Construction drawing
Technical specs
Installation / Display Specs
Patent, trademark, copyright info
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Exhibit "B"
Installation Specifications
WARRANTY
The Outdoor Arts Foundation ("Foundation") hereby warrants the work of art titled,
"Wild Waters" to be free from defects in materials or workmanship from the date of
installation up to and including the time of removal (the "Period"). Foundation shall
immediately correct any such defects that appear during the Period at Foundation's own
cost and expense.
This warranty is in addition to all other warranties, statutory or otherwise, express or
implied, all other representations to the City and all other obligations or liabilities with
respect to such work of art including implied warranties of merchantability and fitness.
IN WITNESS WHEREOF, Foundation has hereunto set his hand and seal thi~
,2003.
0lJ10oo~ ^.a> ~iOP\''I.*j
on G Ide, Executive Director
Arts Foundation
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instr ment was acknowledged before me this 3,J) day of J\th/; 0 ,
2003, by I Executive Director, Outdoor Arts Foundation~s
persona II n to me or who has produced as identification and who did not take an
oath.
NOTARY PUBLIC:
Signb~~
Print .:1, " 0
State of Florida
My Commission No.:
~ ANNEJ.GREEN
'WI MY COMMISSION # DO 119437
1....... EXPIRES: May 20 2006. .
""^"~NOTARY Fl NotaIy SeM '
011 & Bondlng, Inc.
AGREEMENT FOR INSPECTION AND APPROVAL OF INSTAllATION
"Wild Waters"
The Outdoor Arts Foundation ("Foundation") has contracted to display the work of
art entitled "Wild Waters" ("Work") to be displayed at Harborview Center, Clearwater,
Florida, in a manner that meets all the requirements of the Display of a Work of Art
Agreement between the Outdoor Arts Foundation, and the City of Clearwater ("City"),
dated Dfnd d.?.. ' 2003.
In consideration of assuming all legal liability related to the Work's installation,
display and removal as provided for in this Agreement, including but not limited to section
9.1, the Foundation hereby affirms that the Foundation has acquired engineering
specifications and guidelines for the proper and safe installation, display and removal of
the Work, and in accordance with such, has performed all appropriate inspections related
to the soundness of the installation process. The Foundation represents that the Work, in
light of the nature of the Work and the Site on which it has been installed, is safe and
sound for display.
DATE: CLfY,<J: (~~ J j.OO ~
OUTDOOR ARTS FOUNDATION
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CIVIL ·
LAND PLANNING.
ENVI RONMENTAL ·
TRANSPORTATION ·
April 3, 2003
Revised April 7, 2003
Mr. Jay Goulde
Outdoor Arts Foundation
P.O. Box 323
Safety Harbor, Florida 34695-0323
Reference: Flexible Mural Attachment to Harborview Center
Subject: Recommendations for Attaching the Mural
Dear Mr. Goulde:
I reviewed the documents and materials furnished at our meeting on
March 20, 2003. The flexible mesh, manufactured by Verseidag Indutex, is
suitable for the mural. It is lightweight, strong, flame retardant, and allows
adequate airflow to reduce wind resistance.
The length of the mural should be cut such that. the center of the
grommets aligns with the center of the columns. The proposed 32' height should
be adjusted to the distance between the bar supports behind the columns that
attach them to the building. The cable passing through the grommets at the top
of the mural should encircle the column above the bar support. Similarly, the
cable passing through the bottom grommets should encircle the column below
the bar support. This configuration allows the tension in the fabric to be taken up
by the bar support.
The product literature indicates the fabric has 66 pounds of tear strength.
Therefore, tight~n or stretch the mural with no more than 30 pounds tension
either horizontally or vertically. This will provide tension and an adequate safety
factor.
The cable can be secured with wire rope clips properly sized to match the
cable used. The cable I saw would require 3/16" clips. The four corners of the.
mural need to be secured as described. Intermediate attachments may be
added at each of the four interior columns as required to keep the fabric tight and
more uniformly distribute the wind load.
601 CLEVELAND STREET. SUITE 930
CLEARWATER, flORIDA 33755
N ESADA\I N@MINDSPRING.COM
N ESTECH@MINDSPRING.COM
727 . 443 . 2869 FAX 727 . 446 . 8036
Mr. Jay Goulde
Mural at Harborview Center
Page 2.
Wind load forces, superimposed onto the mural and columns by the
movement of an air mass at 130 mph velocity, were checked by the provisions of
Section 1205.2 of the SBBCI. Even allowing for no air flow through the mesh,
the 130 mph wind pressure does not exceed the strength of the fabric with the
configuration proposed. The bending stress acting on two columns only, from the
wind pressure on the mural (in a hurricane there would be more acting on the
columns than just the mural), will not exceed the allowable stress for the two
columns. The calculated safety factor is huge. If intermediate columns are also
used to attach and support the mural, the safety factor increases.
However, it is also my opinion that if a hurricane threatens the Clearwater
area, the mural should be taken down ahead of its arrival.
Good Luck with your project. Thank you for the opportunity to help.
Sincerely,
N SIDE ENGINEERING SERVICES, INC.
'>i:.~J:~~cdc-
enneth H. Roush, P.E.
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