MODEL AGREEMENT FOR COMMISSION OF PUBLIC ARTWORKMODEL AGREEMENT FOR COMMISSION OF PLTBLIC ARTWORK
THIS AGREEMENT for commission of public artwork made and entered into this 20�' dav of September,
20l 1 by and between Weitzman Studios, Inc. (hereafter called the "Artist") whose address is 3413
Windom Raad Brentwood MD 20722 and the C1TY OF CL�ARWA'T'�R, FLORiDA, a rnunicipal
corporation of the 5tate of Florida, located at 112 South Osceola Avenue. Clearwater, FL 33756
(hereafter called the "City") (each individually referred to herein as "Party" or collectively as the
"Farties").
WITNESSETH:
WH�REAS, the CITY has implemented the Clearwater Public Art and Design Program (hereafter called
the "Program") pursuant to ORDINANCE NO. 7489-OS as arnended, in ORI7INANCE 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 allowing for the expenditure of
funds for projects not associated with capital improvement projects; and
WHERBAS, autharity lies with the City to make payments for the acquisition, design execution
fabrication oi clay patterns from previously approved conceptual designs (hereafter called the
"Artwork"), including payments for the support of an artist selection process, design execution, and
fabrication of Artwork; and
WHEREAS, the Artist was select�d by the City through an open Call to Artists process adopted by tk►e
City to connmission the Artwork as further described in Eachibit A; and
WHER�AS, the Artist is a recognized artist whose work and reputation make the Artist uniquely
qualified to create the Artwork; and
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WHEREAS, the Artist wishes to fabricate Artwork of previously approved designs valued at $45,000.00
and work with the Florida Department of Transportation (hereafter called "FDOT") to be installed in a
public space in proximity to the U.S. 19 and State Road 60 interchange (hereafter called the "Site"); and
WHEREAS, the Artist and City wish to undertake the obligations expressed herein;
NOW, THEREFORE, in cansideration of the above-stated premises and for good and valuable
consideration, the receipi and sufficiency of which are hereby acknawledged by the parties, subject to the
conditions hereinafter set forth, the parties agree as follows:
ARTICLE 1: SCOPE OF SERVICES
1.1 Recitals
The foregoing recitals are incorporated into and rnade a part of this Agreement for Commission oi Public
Artwork, and the Parties acknowledge and agree that such recitals are true and correct.
1_2 Artist's Obligations
a. It is contemplated that the "Artwork" in this instance, shall consist of various prelirninary one-
dimensional designs, patterns made of clay or similar suitable materials, and the final product,
which shall be the result of setting concrete into the malds thereby creating the finished three-
dimensional Artwork which shall be cast into a roadway overpass, to be coordinated with and
contracted by FDOT. The Artist shall perform all services and furnish all supplies, materials and
equipment as necessary for the design and fabrication of the Artwork at the Artist's studio in
accordance with the specified schedule further described in Exhibit B. Services shall be
performed in a professional manner and in strict compliance with all terms and conditions in this
Agreement.
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b. 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. The
Artist's proposal shall be reviewed and approved by the City, FDOT, and others, where
appropriate, to ensure compliance with these objectives.
'I'he Artist shall prepare the design concept and the corresponding budget described in Section l.4
and Exhibit C of this Agreement. The design concept shall include a description of all rnaterials
and products utilized in the Artwork and the required rautine care and upkeep involved.
d. Upon receipt of a Notice ta Proceed, the Artist shall commence the fabrication of the full-size
Artwork patterns previously approved by the City. The Artwork patterns consist of: iive (5) shell
designs and five (5) wave designs, which shall be constructed from clay and/or other suitable
materials. Once completed, the Artwork patterns shall be made available for inspection and
appraval by the City or its representative.
e. The Artist shall attend public information meetings with the general public, attend design and
construction coordination meetings with the City, general contractor, architect and other parti�s,
as appropriate, to communicate about the Artwork and ensure appropriate integration and/or
installation of the Artwork.
f. The Artist shall complete the fabrication of the Artwork by the scheduled delivery date as
provided in Section 1.5 and Exhibit B of th�s Agreement, and shall rnake the completed Artwork
patterns available for review by the City andlor its representative.
g. The Artist sha11 provide the required insurance in amounts and limits specified in Article 6 and
Exhibit D.
h. The Artist shall provide photographic documentation of the Artwork.
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i. The Artist shall be available with reasonable advance notice for rneetings, ceremonies and the
like, as necessary.
1�3 Citv's Obligations
a. The City shall perform all obligations in compliance with all terms and conditions in this
Agreement.
b. The City shall not use the Artist's name or misuse of the Artwork which would reflect discredit
on the Artist's reputatian as an artist or which would violate the spirit of the Artwork, should such
use or misuse be within the City's detection or control.
lv4 Desi�n
a. Concept/Schematic
i. The Artist has visited, examined, researched and considered the Site and sunounding
area. The Artist has been available to consult with representatives of the community and
considered their input and concerns.
ii. The Artist was selected pursuant to a competition organized for the procurement of an
artist to design and fabricate an Arlwork suitable for the current praject. Within thirty
(30) days of the execution of this Agreement, the Artist shall submit to the City the
design concept (hereafter called the "Design") in the form of detailed drawings, models,
and other supporting documents as necessary as are required to present a meaningful
representation of the Artwork.
iii. The Design must provide sufficient detail to allow for the City to assure compliance with
applicable local, state or federal laws, ordinance and/or regulations.
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iv. The Artist shall attach to the Design a detailed budget for the design and fabrication of
the Artwork, as described in Section 1.4 of this Agreement and in Exhibit C.
b. Approval
i. Within thirty (30) days after the Artist submits the Design, the City sha11 notify the Artist
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 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 upan by both parties, such revisions will become part of the accepted Design.
c. Final/Construction Documents
i. The Art�st shall prepare dimensioned drawings detailing every physical feature of the
construction of the Artwork.
1�5 Budget, Payment Schedule. Construction Schedule and Pro ress Reports
a. Budget
i. 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: mate�ials and applicable
sales tax; off site fabrication costs; Artist's time invested in coordination and fabrication,
insurance; 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 attached
to this Agreement as Exhibit C.
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ii. 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.
iii. The Artist shall keep a log of the Artist's project hours and shall retain all original
receipts pertaining directly to the project.
iv. 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 appraval
for such costs from the City, or if such casts were the result of actions or inaction of the
City.
b. Schedule
i. The Artist shall notify the City of the tentative Schedule for the fabrication, attached to
this Agreement as �xhibit B, This will include a schedule for the submission of progress
reports and inspections, and for the paynnent of Budget installments, if any. The
Schedule may be amended by written agreement of both parties.
] .6 Fabrication
a. The Artist shall fabricate the Artwork in substantial confo�rnity with the Design. The Artist may
not deviate from the approved Design without written approval of the City.
b. The City shall have the right to review the Artwork at reasonable times during the fabrication
thereof upon reasonable notice.
c. If the City, upon review of the Artwork, determines the Artwork does not conform to the Design
or Revised Design, the City reserves the right to notify the Artist in writing af the deficiencies
and that the City intends to withhold the next budget installment as projected in Exhibit B.
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d. The Artist will promptly cure the City's objections and will notify the City in writing of
completion of the cure. The City shall prornptly review the Artwork, and upon approval shall
release the next budget installment. If the Artist disputes the City's determination that the
Artwork does not conform, the Artist shall promptly subnait reasons in writing to the City within
thirty (30) days oithe 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 the Artist has complied with the terms of this Agreement shall remain with the City.
e. The Artist shall notify the City in writing when the fabrication of the Artwork has been completed
and ready for review.
The City shall inspect photographic documentation of the completed Artwork within thirty (30)
days after receiving notification pursuant to Section 1.6( fl, to determine that the Artwork
conforms to the Design or Revised 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 f fteen (15) days of examining the fabricated artwork. The Artist shall then have
sixty (60) 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 of the Artwork 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.
g. 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
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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.
1_7 Chan�es to Desi�n
a. Prior to the execution of any change in the approved Design, the Artist shall present all proposed
changes in writing to the City for further review and approval. The Artist must provide a detailed
description of any significant changes to the artistic expression, design, dimensions and materials
of the Artwork that is not permitted by or 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.
If the City approves the changes, the City shall promptly notify the Artist in writing. The City
will also make the required presentations to the appropriate approval bodies including, but nat
limited to: City Council, the Public Art & Design Board, and the appropriate city departments
including Engineering, Environmental, Flanning and Fublic Works.
c. If the City Disproves of the changes, the City shall promptly notify the Artist in writing and the
Artist shall continue to fabricate the Artwork in substantial con%rmity with the Design.
d. The Artist's fee shall be equitably adjusted for any increase or decrease in the Artist's cost af, or
time required for, performance of any services under this Agreement as a result of revisions
made, requested by the City, in writing, to the Design under Section 1..7(a). Any claim of the
Artist for adjustment under this paragraph must be asserted in writing within thirty (30) days of
the date of the revision by the Artist.
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Artist standard professional s�rvice fee billing rates are as follows:
$175 per hour for principal
$110 per hour foc staff
ARTICLE 2: TAXES
Any state or federal sales, use of excise taxes, or similar charges relating to the sezvices 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.
ARTICLE 3: TERM OF AGREEMENT
a. 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
final acceptance by the City under 5ection 1.8(b), or submission of final payment to the Artist by
the City under Exhibit B, whichever is later. Extension of time of performance hereunder may be
granted upon 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 under Section 1.5(b)(i), attached as Exhibit B.
b. 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 duratian of the
condition. Both parties shall take all reasanable steps during the existence of the condition to
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assure performance of their contractual obligations when the condition no longer exists. Failure
to fulfill contractual 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.
ARTICLE 4: RISK OF LOSS
The Artist shall bear the risk af loss or damage to the Artwork until the City's final acceptance of
the Artwork under Section ].9(b). These risks include, but are not limited to: theft; vandalism or
any act by a third party; damage caused by acts of god, war or natural conditions/disasters; and
any loss occurring during the fabrication, storage, transportation, delivery and installation
regardl�ss of where such loss occurs until the City's final acceptance of the Artwork. The Artist
shall take such measures as are reasonably necessary to protect the Artwork from loss or damage.
The City shall bear the risk of loss or damage to the Artwork prior to final acceptance only if
during such time, the partially or wholly completed Artwork is in th� custody, control or
supervision of the City or its agent(s) for the purposes of transporting, storing, installing or
perfarming other services to the artwork.
ARTICLE S: ARTIST'S REPRESENTATIONS AND WARR.ANTIES
5.1 Warranties of Title
The Artist represents and warrants that, and hereby fully indemnifies the City for any infringements or
claims related to the following:
a. The Artwork is solely the result of the artistic effort of the Artist.
b. Except as otherwise disclosed in writing to the City, the Artwork is unique and original and does
not infringe upon any copyright or the rights of any person.
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c. The Artwork (or any duplicate thereo fl has not been accepted for sale elsewhere.
d. The Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the
Artwork or any element thereof or any copyright related thereto which may affect or impair the
rights granted pursuant to this Agreement.
e. The Artwork is free and clear of any liens from any source whatsoever.
All Artwork created or perfornned by the Artist under this Agreement, whethec created by the
Artist alone or in collaboration with others, shall be wholly original with the Artist and sha11 not
infringe upon or viol�te the rights pf any third party.
g. The Artist has the full power to enter into and perform this Agreement and to make the grant of
rights contained in this Agreernent.
h. All services performed hereunder shall be performed in accordance with a11 applicable laws,
regulations, ordinances, etc. and with all necessary care, skill and diligence.
These representations and warranties shall survive the terrninatian ar other extinctian of this
Agreement.
5_2 Warranties of Ouality and Condition
a. The Artist represents and warcants 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 under Section 1.9(b).
b. The Artist represents and warrants that the Artwork and the materials used are not currently
known to be harmful to public health and safety.
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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 Section 1.8(�.
d. If within one (1) year the City observes any breach of warranty described in this Section 5.2 that
is curable by the Artist, the Artist shall, at the request of the City, cure the breach promptly,
satisfactorily and cansistent with professional conservation standards, at no expense ta the City.
The City shall give notice to the Artist of such breach with reasonable promptness.
e. If after one (1) year the City observes any breach of wazranty described in this Section 5.2 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 A�tist's lifetime. The Artist shall have the right of first refusal to
make or supervise repairs or restorations. 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.
f. If within one (1) year the City observes a breach of warranty described in this Section 5.2 that is
not curable by the Artist, the Artist is responsible for reimbursing the City for damages, expenses
and loss incurred by the City as a result of the breach. However, if the Artist disclosed the risk of
this breach in the Proposal and the City accepted that it may occur, it shall not be deemed a
breach for purposes of this Section 5.2 of this Agreement.
g. Acceptable Standard of Display
The Artist represents and warrants that:
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.
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ii. Foreseeable exposure to the elements and general wear and tear will cause the
Artwork to experi�nce only minor repairable damages and will not cause the
Artwork tp fall belaw an acceptable standard of public display.
iii. With general routine cleaning and repair, and within the context of forese�able
exposure to th� elements and general wear and tear, the Artwork will not
experience irrepazable conditions that do not fall within an acceptable standard of
public display, including mold, rust, fr�cturing, staining, chipping, tearing,
abrading and peeling.
iv. To the extent the Artwork incorporates products covered by a manufacturer's
warranty, the Artist shall provide copies of such warranties to the City. The
foregoing warranties are conditional and shall be voided by the failure of the City
to maintain the Artwork in accordance with the Artist's speci�cations and the
applicable conservation standards. If the City fails to maintain the Artwork in
good condition, the Artist, in addition to other rights or remedies the Artist may
have in equity or at law, shall have the right to disown the Artwark as the Artist's
creation and request that all credits be removed frorn the Artwork and
reproductions thereof until the Artwork's condition is satisfactorily repaired.
ARTICLE 6: INSURANCE
6�1 General
a. The Artist acknawledges that until final acceptance of the Artwork by the City under Section
1.8(b), any injury to property or persons caused by the Artist's Artwork or any damage to, theft
of, vandalism to, or acts of God affecting the Artist's Artwork are the sole responsibility of the
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Artist, including, but not limited to, any loss occurring during the creation, storage, transportation
or delivery of the Artist's Artwork, regardless of whece such loss occurs.
Terms for the procurernent and duration of insurance as well as required insurance policies are
provided and described in Exhibit D.
c. The Artist shall, prior to the execution af this Agreernent, provide certificates of insurance
evidencing Worker's Campensation, Employer's Liability, General Liability and Automobile
Liability insurance. If any insurance policy is due to expire during the period of installation, the
Artist shall provide a certifcate of renewal evidencing the required insurance coverage to the City
not less than �fteen (15) days prior to the expiration date.
6.2 Indernnification
a. The Artist shall indemnify and hold free and harmless, assume legal liability for and defend the
City and its ofiicers, employees, agents and servants, whether they are current or former, from
and against all actions, clairns, liabilities, assertions of liability, losses, costs and expenses, in law
or in equity, including, but not limited to: attomey's fees at trial and appellate levels; reasonable
investigative and discovery costs; court costs; claims for bodily injury or death of persons and far
loss or damage to property, expect as provided herein, of every kind and nature whatsoever,
which in any manner directly or indirectly may arise or be all�ged to have arisen from the
fabricatian 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 their
subcontractors, employees and agents in direct connection with the Artist's performance pursuant
to this Agreement.
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b. To the extent of Florida Statute 768.28, the City shall indemnify the Artist, Artist's
subcontractors, agents or employees from any claims brought arising out of a negligent breach of
this Agreernent or any negl�gent occurrence which occurs pursuant to the performance of this
Agreement by the City, its respective officers, agents, and employees. Notwithstanding the
above, this provision shall not be deemed a waiver of the doctrine of sovereign immunity or the
limits of Florida Statute 768.28, and shall no way be construed as consent to be sued by third
parties.
c. Each party shall immediately notify the other of any written claim regarding any such matter
resulting frorn 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 Agreernent.
d. This indemniiication shall survive the termination or expiration of this Agreement.
Notwithstanding, any provision of this Agreement to the contrary, no party shall recover from a
party to this Agreement in an action, of whatever nature, in contract or tort, any consequential or
incidental damages, lost profits, or any type of expectancy damages.
ARTICLE 7: OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
7.l Title
Title to the Artwork as further described in Section 1.2 shall pass to the City upon the City's written final
acceptance and payment for the Artwork pursuant to Exhibit F. The Artist shall provide the City with a
Transfer of Title in substantially the form attached hereto as Exhibit F.
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7T2 �wnershi� of Documents
The Artist shall retain ownership of all design drawings or madels utilized in the construction of the
Artwork. One set of presentation materials prepared and submitt�d under this Agreement shall be
retained by the City fpr possible exhibitian and to hold for permanent safekeeping.
7_3 Cop,vright Ownership
'T'he Artist retains all rights under the Copyright Act of 197G, 17 U.S.C. § 101 et seq., as the sole author of
the Artwork �or the duration of the capyright.
7_4 Reproduction Ri ts
a. In view oithe intention that the final Artworlc shall be unique, the Artist shall not make any
additional exact duplicate three-dimensional reproductions of the iinal Artwork, nor shall the
Artist grant permission to others to do so except with the written permission of the City.
However, nothing shall prevent the Artist from creating future Artworks in the Artist's manner
and style af artistic expression.
b. 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 limit�d to,
repxoductions used in brochures, media publicity, and exhibition catalogues or ather similar
publications provided that these rights are exercised in a tasteful and professional manner.
c. All reproductions by the City shall contain a credit to the Artist and a copyright notice in
substantially the following form: Co ri t � Weitzman Studios Inc. [date af completion].
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d. The Artist shall use the Artist's best efforts in any public showing or resume use of reproductions
to give acknowledgment to th� City ir► substantially the following form: "an original artwork
commissioned by the City of Clearwater's Public Art & Design Program."
e. The Artist shall, at the Artist's expense, cause to be registered with the United 5tates Register of
Copyrights, a copyright of the Artwork in the Artist's name.
f. If the City wishes to make reproductions of the Artwork for commercial purpases, including, but
not lirnited to, tee shirts, post cards and pasters, 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.
g. Third Party lnfringeznent
The City is not responsible for any third party infringement of Artist's copyright and is not
responsible for protecting the intellectual property rights of the Artist.
ARTICLE 8: ARTIST'S RIGHTS
5,�1 General
a. The Artist retains all r�ghts under state and federal laws including § 106A of the Copyright Act of
1976.
b. The City agrees that it will nat intentionally alter, modify, change, destroy or damage the Artwork
without first obtaining pernnission from the artist.
c. If any alteration or damage to the Artwork occurs, the artist shall have the right to disclaim
authorship of the Artwork in addition to any remedies the Artist may have in law or equity under
this contract. Upon written request, the City shall remove the identiiication plaque and all
amibutive references to the Artist at its own expense within fourteen (14) days of receipt pf the
notice. No provision of this Agreement shall abligate the City to alter or remove any such
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attributive reference printed or published prior to the City's receipt of such notice. The Artist
may take such other action as the Artist may choose in order to disavow the Artwork.
8.2 Alterations of Site or Removal of Artwork
a. Contingent upon the initiator of such, the City or FDOT shall notify the Artist in writing upon the
adoption of a plan or alteration of the Site which wauld entail removal or relocation of the
Artwork which migYAt result in the Artwork being destroyed, distorted or rnodified. The Artist
shall be granted the right of consultation regarding the rennoval or relocation of the Artwork. If
the Artwork cannot be successfully removed or relacated as determined by the City, the Artist
may disavow the Artwork or have the Artwork returned to the Artist at the Artist's expense.
b. The Artwork may be removed or relocated or destroyed by the City should the Artist and the City
not reach rautual agreernent on the removal or relocation of the Artwork after a period not to
exceed ninety (90) days after written notice to the Artist. During tk►e ninety (90) day period, the
parCies shall engage in good faith negotiations concerning the Artwork's removal or relocation.
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 canformity with such codes, laws or regulations.
If the City reasanably 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.
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This clause is intended to replace and substitute for the rights af the Artist under the Visual
Artists' Rights Act of 1990 to the extent that any portion of this Agreernent is in direct conflict
with those rights. Tha parties acknowledge that this Agreement supersedes that law to the extent
that this Agreernent is in direct conflict therewith.
ARTICLE 9: PERMANENT RECORD
The City shall maintain on permanent file a record of this Agreement and af the location and disposition
of the Artwork.
ARTICLE 10: ARTIST AS AN INDEPENDENT CONTRACTUR
The Artist agrees to create and/or perform all Artwork under this Agreement as an independent contractor
and not as an agent or employee of the City. The Artist acknowledges and agrees that the Artist shall not
hold hirnself or herself out as an authorized agent of the City with the power to bind in any manner. The
Artist shall provide the City with tha Artist's Tax Identification Number and any proof of such number as
requested by the City. The City shall not provide insurance coverage for the Artist during their
performance of this Agreement, including Warkers Compensation insurance.
ARTICLE 11: NONDISCRIMINATION
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.
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ARTICLE 12: ASSIGNMENT OF ARTWORK
The Artwork and services required of the Artist are personal and shall not be assigned, sublet or
transferred. Any attempt by the Artist ta assign this Agreement or any rights, duties or obligations arising
hereunder shall be void and of no effect unless prior written consent is given by the City. The City shall
have the right to assign or transfer any and all of the City's rights and obligatians under this Agreement,
subject to the ArtisYs consent, if ownership of the Site is transferred; if the Artist refuses to give consent,
this Agreement shall terminate.
ARTICLE 13: DEFAULT AND TERMINATION
a. 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 ather remedy available to the City, the City, upon
thirty (30) days written notice, may terminate this contract. Such ternaination does not waive any
other legal remedies available to the City.
b. Either party may terminate this Agreement without recourse by the other where performance is
rendered irrApossible ar impractical for reasons beyond such party's reasonable control such as,
but not limited to: acis of nature; war or warlike operations; invasion by extraterrestrial entity or
entities; superior governmental regulation or contral, 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.
c. 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 and commitments made up to t1�e date
of termination, consistent with the schedule of payments set forth in Exhibit S of this Agreement.
The Artist shall have the right to an equitable adjustment in the fee for services performed and
expenses incurred beyond those for which the Artist has been compensated to date under E�chibit
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B with allowance for lost opportunities and profit unless the parties come to a settlement
otherwise.
If either party to this agreement shall willfully qr 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.
e. lf the Artist defaults for cause other than death or incapacitation, the Artist shall return to the City
all funds provided by the City in excess of expenses already incurred. Tk�e Artist shall provide an
accounting of such. All �nished and unfinished drawings, sketches, photographs and other
Artwork products prepared and submitted or prepared for subnnission by the Artist under this
Agr�ement shall be retained by the Artist. The City shall retain the right to have the Artwork
completed, fabricated, executed, delivered and installed, however the Artist shall retain the
copyright in the Artwork and all rights under Article 7 and Article 8.
f. If the City defaults, the City shall promptly compensate the Artist for a11 services performed by
the Artist prior to termination. The City shall pay the Artist for services performed and
commitments made prior to the date of termination, consistent with the schedule of payments set
farth in Exhibit B. The Artist shall have the right to an equitable adjustment in the fee for
services performed and expenses incurred beyond those for which the Artist has been
compensated to date with reasonable allowance for lost opportunities. The Artist shall retain
possession and title to any studies, drawings, designs, maquettes and models already prepared and
submitted or prepared for submission to the City by the Artist under this Agreement prior to the
date af termination.
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g. Upon notice of termination, the Artist and the Artist's subcontractors shall cease all services
affected.
ARTICLE 14: DEATH OR INCAPACITY
If the Artist becomes unable to cornplete this Agreement due to death or incapacitation, such death or
incapacity will not be deerned a breach of this Agreement or a default on the part of the Artist for the
purpose of Article 14. However, nothing in this Article shall obligate the City to accept the Artwork.
a. In the event of incapacity, the Artist shall assign the Artist's obligatians and services under this
contract to another artist provided that the City, in the City's sole discretion, approves of the new
artist. Alternatively, the City rnay elect to terminate this Agreement. The Artist shall retain all
rights under Article 7 and Article 8. The Artwork and any reproductions thereof shall contain a
credit to tha Artist and a copyrigk�t notice in substantially the following form: Copyright m
W�itzman Studios. Inc. [date of completion].
b. In the event of the Artist's death, this Agreement shall terminate the effective date of death. The
Artist's heirs shall retain all rights under Article 6 and Article 7. The Artist's executor shall
deliver to the City the Artwork in whatever form or degree af completion it may be at the time.
Title to the Artwork shall then transfer to the City. However, the Artwork shall not be
represented to be the completed Artwork of the Artist unless the City is otherwise directed to do
so by the Artist's estate.
ARTICLE 15: NOTICES AND DOCUMENTS
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 when: (1) delivered by personal
delivery; or (2) five (5) business days after having been deposited in the U.S. mail, certified or registered,
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return receipt requested, with sufficient postage affixed and prepaid; or (3) one (1) business day after
having been deposited with an expedited overnight courier service, such by way of example but not
limited ta: U.S. Express Mail, Federal Express, or UFS; addressed to the party to whorn notice is intended
to be given at the address set forth below:
For the City: City Manager
City of Clearwater
112 South Osceala Avenue
Clearwater, FL 33756
For the Artist: Steven Weitzman, CEO
Weitzman Studios, Inc.
3413 Windom Road
Brentwood, MD 20722
ARTICLE 16: WAIVER
The Parties agree that a waiver of any breach of violation of any term or condition of this Agreement shall
not be deemed to be a waiver of any other term or condition contained herein or a waiver of any
subsequent breach or violation of the same or any other term of condition.
ARTICLE 17: AUDIT
The City shall maintain records of all documents, notices, checks and other records reyuired or produced
under this Agreement or related thereto. The Artist agrees to the maintenance of such records for archival
purposes. Such records shall be made available for inspection or audit, at any time during regular
business hours, upon written request by the City. Capies of such documents shall be provided to the City
for inspection when it is practical to do so. Access to such recards and documents shall also be granted to
any party authorized by the Artist, the Artist's representatives, ar the Artist's successors-in-interest. The
City will comply with any open records law applicable to these records.
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ARTICLE 18: CONFLICT OF INTEREST
The Artist and City shall avoid all conflicts of interest or appearance of conflicts of interest in the
performance of this Agreement.
ARTICLE 19: MEDIATION
a. If, during the creation of the Artwork, its installation and subsequent existence, either party
breaches this Agreement, each party agrees ta submit to mediation upon the request of the other
provided that the breach is not cured with a reasonable time under Article 13 paragraph c.
b. If an ambiguity arises regarding this Agreement upon which the parties cannot agree or a dispute
arises as to the completion of a provision, the parties shall submit to mediation.
c. Each party agrees to be responsible far its own attorney's fees except as otherwise provided by
law.
ARTICLE 20: AMENDMENTS
No alteration, change or modification of the terms of this Agreement shall be valid unless made in writing
and signed by both parties hereto.
ARTICLE 21: CONFLICTS OF LAW
If any term, covenant, condition or provision of this Agreement, or the application theceof to any person
or circumstance, shall be held by a court of competent jurisdiction, arbitration panel or mediation
procedure to be in conflict with the laws, rules, and/or regulations of the United States or the State of
Florida, invalid, void, or unenforceable, the remainder of the terms covenants, conditions or provisions of
this Agreement, or the application thereof to any person or circumstance, shall remain in full force and
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effect and shall in no way be affect�d, impaired or invalidated thereby to the extent the remainder of the
terms, covenants, conditions or provisions of this Agreement are capable of execution.
ARTICLE 22: CHOICE OF LAW
This contract shall be governed by the laws of the State of Florida. Any proceeding related hereto shall
be brought and heard in Pinellas County, Florida.
ARTICLE 23: ENTIRE AGREEMENT
This Agreement, including the exhibits, comprises all of the covenants, promises, agreeanents and
conditions between the parties. No verbal agreements ar conversations between the parties prior to the
execution of this Agreement shall affect or modify any of the terms or obligations.
ARTICLE 24: SURVIVXNG COVENANTS
T'he covanants and obligations set forth in this Agreement shall survive the design and fabrication 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.
ARTICLE 2S: INTEPRETATION
This Agreement shall be interpreted under and in accordance with the laws of the State of Flarida.
ARTICLE 26: CONSTRUCTION OF AGREEMENT
This Agreement shall not be construed more strictly against one party than anather 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.
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ARTICLE 27: 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 omissiaz�s shall not invalidate the remaining provisions of this
Agreement.
ART�CLE 28: 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 THEREOF, the parties hereto have caused this Agreement for Commission of Public
Artwork to be executed on the date first above written.
Approved as to Form:
Laura Mahony
Assistant City Attorney
W itness:
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CITY OF CLEARWATER, FLORIDA
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William B. Horne II
City Manager
Attest:
Rosemarie Call
City Clerk
Artist:
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EXHIBIi B
SCHEDULE
APRIL 21, 2011 Public Art Selection Panel convenes to select site-specific project artist
MAY 13, 2011 Public Art and Design Board review and approval of project artist's concept
AUGUST 18, 2011 City Countil review and approval of project artist's concept
SEPiEMBER 20, 2011 Contract executed by project artist and City of Clearwater
SEP7EMBER 23, 2011 Notice to Proceed issued ta the artist
SEPTEMBER 26, Z�].i *Dispersal of first peyment -$22,500*
SEPT. 2011— FEB. 2012 Artwark design and clay pattern fabrication
FEBRUARY 2012 Artwork ready for inspection and approval by the City of Clearwater
FEBRUARY 2012 Final artwork delivered to the City of Clearwater
FEBRUARY 2012 °�Dispersal of secand and final payment -$22,500*
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Th� Aj�cist;:s�N ll�ir� ��;otrlly��� i, � �� ��I .' �!;filorr�'�n , Cit���tative.
TI�eAi�ttisC��llt�rnpl�h�� ��ib�i �,' ��:��I�i�a'ror+d�nc���. �Sct�pq��9er�ricesaF
th�e atjta�h� ; '�+��pt °!" .' 'r'� � k ,
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EXHIBIT C
BUDGET
Qne-dimensional designs, patterns made of clay or similar suitable materials.
$22,500.00
Final product: Three-dimensional clay patterns to be used for the setting of concrete into
molds and cast into a roadway overpass.
$22,500.00
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�,�UTAC � $45.00O.QQ
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EXHIBIT D
INSUFtANCE
1'he Artist shall place and maintain for the periods prior to, during, and after the creation, fabrication,
shipment and installation of the Artwork, and pay the cost thereof, the follawing insurance policies:
General Liability__I_nsurance:
The Artist shall procure and maintain General Liability insurance, with limits of not less than
$1,000,000 per otcurrence, Combined Single Limit for Bodily Injury and Property Damage,
including Cont�actual Liability, Personal Injury, Projects and Completed Operations. The Artist shall
obtain such insurante prior to transporting and installing the Artwork at the Site and name the City
as additionally insured on the policy.
Certificates �f Insurance:
The Artist shall, prior to the execution of this Agreement, provide certificates of insurance
evidencing Worker's Compensatian, Employe�'s Liability, General Liability and Automobile Liability
prior to the installatian of the Artwork at the 5ite. If any insurance policy is due to expire during
the periad of installation, the Artist shall pravide a certificate of renewal evidencing the required
insurance coverage to the City not less than ten (10) days prior to the expiration date.
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