AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK (4)AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK
THIS AGREEMENT for commission of public artwork made and entered into this 14�' dav of December,
2012 by and between Cliff Garten and Associates, Inc. doing; business as Cliff Garten Studio (hereafter
called the "Artist") whose address is 1315 Preston Wav, Venice. CA 90291 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") (each individually referred to herein
as"Party" or collectively as the "Parties").
WITNESSETH:
WHEREAS, the CITY has implemented the Clearwater Public Art and Design Program (hereafter called
the "Program") pursuant to ORDINANCE NO. 7489-OS as amended, in 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, authority lies with the City to make payments for the acquisition, design execution,
fabrication, transportation, and installation of Artwork, including payments for the support of an artist
selection process, design execution, fabrication, transportation and installation of Artwork; and
WHEREAS, the City's Clearwater Harbor Marina is an eligible capital improvement project subject to
Program requirements; and
WHEREAS, the Artist was selected by the City through an open Call to Artists process adopted by the
City to commission the Artwork as further described in Exhibit A; and
WHEREAS, the Artist is a recognized artist whose work and reputation make the Artist uniquely
qualified to create the Artwork; and
WHEREAS, the Artist wishes to create a unique Artwork valued at 200 000 to be installed in a public
space in proximity to the Clearwater Harbor Marina located at or near 210 Drew Street. Clearwater, FL
33755 hereafter called the "Site"); and
WHEREAS, the Artist and City wish to undertake the obligations expressed herein;
NOW, THEREFORE, in consideration of the above-stated premises and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged 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 made a part of this Agreement for Commission of Public
Artwork, and the Parties acknowledge and agree that such recitals are true and conect.
1_2 ArtisYs Obli atg ions
a. The Artist shall perform all services and furnish a11 supplies, materials and equipment as
necessary for the design and fabrication of the Artwork at the ArtisYs studio in accordance with
the specified schedule further described in E�ibit B. Services sha11 be performed in a
professional manner and in strict compliance with all terms and conditions in this Agreement.
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 Ageement. To ensure
that the Artwork as installed shall not interfere with the intended use of the Site, underground
utilities, pedestrian and other traffic flow, parking, and safety devices and procedures at the Site,
the Artist's proposal shall be reviewed and approved by the City, other applicable city
departments including, but not limited to: Building, Engineering, Marine & Aviation, Parks &
Recreation, Public Works, Risk Management, Traffic Engineering and others, where appropriate,
to ensure compliance with these objectives.
c. The Artist shall prepaze the design concept and the corresponding budget described in Section 1.4
and Exhibit C of this Agreement. The design concept shall include a description of all materials
and products utilized in the Artwork and the required routine care and upkeep involved.
d. The Artist shall prepare structwal drawings detailing the Artwork and its integration and relation
to the Site. As determined by the City, the Artist shall provide to the City a certification from a
qualified, licensed engineer that the Artwork will be of adequate structural integrity (including
foundation loads, wind loads, and potential live loads) to ensure the safety and welfare of the City
and its officers, employees, agents, servants, and the general public. Such drawings will confirm
to all applicable federal, state, and local laws and regulations.
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 parties,
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 installation date as
provided in Section 1.5 and Exhibit B of this Agreement.
g. The Artist shall secure any and all required licenses, permits and similar legal authorizations at
the Artist's expense as may be necessary for the installation and maintenance of the Artwork at
the Site.
h. The Artist shall arrange the transportation and installation of the Artwork in consultation with the
City. If the Artist does not install the Artwork himself or herself, the Artist shall supervise and
approve of the installation.
i. The Artist shall provide the required insurance in amounts and limits specified in Article 6 and
Exhibit D.
j. The Artist shall provide a list of all subcontractors along with a copy of the Agreement between
the artist and each subcontractor.
k. The Artist shall provide a maintenance manual with a description of all materials and products
utilized in the Artwork and the required care and upkeep involved further described in E�ibit E.
1. The Artist represents that the Artwork is made of durable material and will withstand the usual
weather and climate in the area;
m. The Artist shall provide photographic documentation of the Artwork.
n. The Artist shall provide the City with a written condition report of the Artwork after installation.
o. The Artist shall be available with reasonable advance notice for meetings, ceremonies and the
like, as necessary.
p. The Artist's travel is included as reimbursable in the project budget, attached as E�chibit C, and is
defined as two trips to the Artist's foundry in Utah and two trips to Clearwater. The trips to
Clearwater are part of the project production and do not relate to any Artwork dedication,
ceremonies, or public meetings.
1_3 Citv's Obli atg ions
a. The City shall perform all obligations in compliance with all terms and conditions in this
Agreement.
b. The City shall be responsible for providing the Artist, at no expense to the Artist, copies of
existing designs, drawings, reports, list of required permits, and other e�sting relevant data, if
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any, which is needed by the Artist in order to perform the Artist Obligations described in this
Agreement.
c. The City shall be responsible for compliance with all applicable laws and regulations, including
but not limited to zoning or environmental regulations, and shall explain any limitations imposed
by such laws and/or regulations to the Artist.
d. The City shall prepare the Site in accordance with the specifications contained in the approved
design concept in Section 1.4 and Exhibit A of this Agreement. The City shall be responsible for
all expenses, labor and equipment 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 Section 1.4 and Exhibit B of this Agreement, or sha11 contact the Artist in writing
informing him or her of any delays.
e. The City shall provide and install a plaque on or near the Artwork containing a credit to the Artist
and a copyright notice substantially in the following form: Co�,vrig,ht � Cliff Garten Studio [date
of completion].
The City shall not use the Artist's name or misuse of the Artwork which would reflect discredit
on the ArtisYs reputation 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.
g. The City shall be responsible for leading the Artist through the required review process. The City
shall be responsible for organizing and scheduling meetings with review entities such as the City
Council, Building Permit Review Committee and other applicable City departments, and for
providing the Artist written instructions for the materials required at such meetings.
h. The City shall routinely clean, caze for, and maintain the Artwork after installation and final
acceptance of the Artwork and will abide by the recommendations described and included in
Exhibit E, the Maintenance Manual.
1_4 Desi�n
a. Concept/Schematic
The Artist shall visit, examine, research and consider the Site and surrounding area. If
necessary, the Artist shall also be available to consult with representatives of the
community and consider their input and concerns.
ii. The Artist was selected pursuant to a competition organized for the procurement of an
artist to design and fabric an Artwork suitable for the current project. Within thirty (30)
days of the execution of this Agreement, the Artist shall submit to the City the design
concept (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 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
requirements for the Artwork; a description of the placement of the Artwork at the Site
and any site preparations that the City may be required to furnish, including, but not
limited to, any changes or modifcations to any utility system, above or below ground, or
structure of the Site as necessary.
iv. 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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v. The Artist shall attach to the Design a detailed budget for the design, fabrication and
installation of the Artwork, including costs for Site prepazation, as described in Section
1.4 of this Agreement and in Exhibit C.
b. Approval
Within thirty (30) days after the Artist submits the Design, the City shall 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 upon by both parties, such revisions will become a part of the accepted Design.
ii. If the City disapproves of the Design, the City will submit to the Artist in writing the
reasons for such disapproval. In such event, the Artist will submit a Revised Design
within thirty (30) days after the City has notified the Artist of its disapproval. The Artist
will not be paid an additional fee for the Revised Design.
Redesign
The Revised Design will reflect changes made to address the City's stated reasons for
disapproval, as well as any adjustments in the budget or schedule that may be necessary.
The City shall notify the Artist in writing whether it approves ar disapproves of the
Revised Design within sixty (60) days after the Artist submits the Revised Design.
ii. If the Artist refuses to revise the Design pursuant to Section 1.4, or if the Artist fails to
adequately revise the Design in the judgment of the City, this Agreement shall terminate
and the parties shall be under no further obligation to each other as of the date of such
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termination. The effective date of termination shall be the date the City submits its
written disapproval of the Revised Design to the Artist. The City sha11 submit to the
Artist a written termination notice with the disapproval. The termination notice shall
advise the Artist that this Agreement has been terminated pursuant to this Article. The
termination notice shall notify the Artist that the Artist is entitled to retain the
compensation paid prior to the termination date, and that the parties are under no further
obligation to each other. The termination notice shall confrm that the Artist shall retain
ownership of all Designs, Revised Designs and renderings thereof submitted as part of
the terms of this Agreement.
d. Final/Construction Documents
The Artist shall prepare structural drawings detailing every physical feature of the
construction of the Artwork and its integration with the Site. These drawings shall
indicate any risks involved in the construction, integration, and maintenance of the
Artwork, as well as any third party subcontractors needed to work on the project.
ii. The Artist shall present such drawings to a qualified engineer, licensed by the state and
paid by the Artist, for certification that the Artwork will be of adequate structural
integrity and the Artist sha11 provide the City with such certification.
iii. Where appropriate, the Artist shall present the Design to a qualified conservator, who
will make recommendations on the maintenance of the Artwork, and the Artist shall
provide a written copy of the conservator's recommendations to the City.
iv. The Artist shall present to the City recommendations on the scheduled maintenance of
the Artwork to be attached to this Agreement as Exhibit E, the Maintenance Manual.
1_5 Bud eg t, Pavment Schedule, Construction Schedule and Pro eg�s Reports
a. Budget
The Artist shall prepare a budget, which shall include all goods, services and materials,
with such costs itemized, including, but not limited to costs for: materials and applicable
sales tax; off-site fabrication costs; ArtisYs time invested in coordination, fabrication and
supervision of installation; fees for required licenses, permits and similar legal
authorizations; fees for the labor of assistants; itemized general contractor and
subcontractor fees, if applicable; insurance; Artist's travel; transportation of the Artwork
to the Site; itemized installation costs; any applicable local, state or federal taa�es; and a
ten-percent (10%) contingency to cover any unforeseen costs that may arise. This Budget
will be attached to this Agreement as E�ibit C.
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 approval
for such costs from the City, or if such costs were the result of actions or inaction of the
City.
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b. Schedule
i. The Artist shall notify the City of the tentative Schedule for the fabrication and
installation of the artwork, attached to this Agreement as E�ibit B. This will include a
schedule for the submission of progress reports and inspections, and for the payment of
Budget installments, if any. The Schedule may be amended by written agreement of both
parties.
1.6 Fabrication
a. The Artist shall fabricate and install, or supervise the installation, of the Artwork in substantial
conformity with the Design. The Artist may not deviate from the approved Design without
written approval of the City.
b. The Artist shall take reasonable measures to protect or preserve the integrity of the Artwork such
as the application of protective or anti-UV or anti-graffiti coatings, if applicable, unless the City
disapproves.
c. The City shall have the right to review the Artwork at reasonable times during the fabrication
thereof upon reasonable notice.
d. 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 of the deficiencies
and that the City intends to withhold the next budget installment as projected in E�ibit B.
e. 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. 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
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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, final determination as to
whether the Artist has complied with the terms of this Agreement shall remain with the City.
f. The Artist shall notify the City in writing when the fabrication of the Artwork has been
completed, and that the Artwork is ready for delivery and installation at the Site, if the artwork
was fabricated off-site.
g. 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 fnal 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 (IS) 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 and installation of the Artwork to the Site 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.
h. The City shall promptly notify the Artist of any delays impacting installation of the Artwork.
Any additional storage fees incurred as a result of such delays are the responsibility of the City.
The Artist shall be required to inspect the Site prior to the transportation and installation of the
Artwork and shall notify the City of any adverse Site conditions that will impact the installation
of the Artwork which are in need of correction.
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1_7 Changes to DesiQn
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.
b. 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 not
limited to: City Council, the Public Art & Design Board, and the appropriate city departments
including Engineering, Environmental, Planning and Public 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 conformity with the Design.
d. 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, 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.
1.8 Installation
a. Upon the City's final approval of the fabricated Artwork, as being in conformity with the Design,
the Artist or ArtisYs representative shall deliver and install, or supervise the installation, of the
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completed Artwork to the Site in accordance with the schedule provided for in Section 1.5(b) and
Exhibit B. Transportation fees shall be paid by the Artist.
b. The Artist will coordinate closely with the City to ascertain that the Site is prepared to receive the
Artwork. The Artist must notify the City of any adverse conditions at the Site that would affect
or impede the installation of the Artwork. The Artist is responsible for the timely installation of
the Artwork. The Artist will confer and coordinate with the City to ensure the timely
coordination with the City's construction team. The Artist may not install the Artwork until
authorized to do so by the City.
c. The Artist, or Artist's representative, shall be present to install, or supervise the installation of,
the Artwork.
d. Upon written acceptance of the installation, the Artwork shall be deemed to be in the custody of
the City for purposes of this Agreement.
e. Within fifteen (15) days after installation of the Artwork, the Artist shall furnish the City with the
following photographs of the Artwork as installed:
A set of three (3) digital, 300 dpi, JPG or TIFF fles, of the Artwork, one taken from each
of three different viewpoints, provided to the City on a CD-Rom or other memory device.
Photographs must be labeled with the name of the Artwork, the date upon which the
photograph was taken, and the viewpoint from which the photograph was taken. The
Artist shall also furnish the City with a full written narrative description of the Artwork.
f. Upon installation of the Artwork, the Artist shall provide the City with written instructions for the
appropriate maintenance and preservation of the Artwork along with product data sheets for any
material or finish used, attached as E�ibit E. The Artwork must be durable, taking into
consideration that the Site is an unsecured public space that may be exposed to elements such as
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weather, temperature variation, and considerable movement of people and equipment. The Artist
must ensure that all maintenance requirements will be reasonable in terms of time and expense.
The City is responsible for the proper care and maintenance of the Artwork.
1_9 Anvroval and Acc�tance
a. The Artist shall notify the City in writing when all services as required of both parties by this
Agreement prior to this paragraph have been completed in substantial conformity with the
Design.
b. The City shall coordinate all necessary licensed and qualified inspections of the completed
artwork while the Artist or Artist's representative is present and shall present a"punch-list" to the
Artist or Artist's representative. The items included in the "punch-lisY' must be corrected or
completed, to the City inspector's satisfaction, prior to the City accepting the artwork as
complete.
b. The City shall promptly notify the Artist of its final acceptance of the artwork after the Artist or
Artist's representative has conected all "punch-list" items to the satisfaction of a City
inspector(s). The effective date of final acceptance shall be the date the City submits written
notice to the Artist of its final acceptance of the Artwork and shall coincide with the final
inspections performed by the City. The final acceptance shall be understood to mean that the
City acknowledges completion of the Artwork in substantial conformity with the Design, and that
the City confirms that all services as required of both parties by this Agreement prior to this
paragraph have been completed. Title to the Artwork passes upon final acceptance and fnal
payment.
If the City disputes that the services have been performed, the City shall notify the Artist in
writing ofthose services the Artist has failed to perform within fifteen (15) days after the Artist
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submitted written notice pursuant to Section 1.9(a) above. The Artist shall promptly perform
those services indicated by the City.
d. If the Artist disputes the City's determination that not all services ha�e 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.
e. Upon the resolution of any disputes that arise under paragraphs (c) and (d) of this section the City
shall notify the Artist of its final acceptance of the Artwork pursuant to paragraph (b).
f. After final acceptance of the Artwark, the Artist shall be available at such time(s) 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. Travel for this contract has been arranged as reimbursement to the
Artist on the part of the City as indicated in the project budget, E�ibit C.
During such public presentations by the Artist, the Artist shall acknowledge the City's
role in funding the artwork.
ii. The City shall be solely responsible for coordinating public information materials and
activities related to public presentations.
iii. After final acceptance of the artwork, the City assumes liability for any damage to the
artwork, or damage caused by the artwork, not resulting from negligence or fault on the
part of the Artist, the ArtisYs representatives, employees, contractors, or subcontractors,
including, but not limited to: breaches of warranty, defects in materials, design or
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fabrication, transportation or installation, or infringement of ownership or intellectual
property rights, as further outlined in Section 5.2 of this Agreement.
ARTICLE 2: TAXES
Any state or federal sales, use of excise t�es, 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.
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 eazlier pursuant to such provisions in the Agreement, shall extend until
final acceptance by the City under Section 1.8(b), or submission of final payment to the Artist by
the City under E�ibit 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 sha11 be in writing, signed by both parties, and attached to
the schedule under Section 1.5(b)(i), attached as E�ibit 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 dwation 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
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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 of loss or damage to the Artwork until the City's final acceptance of
the Artwork under Section 1.9(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
regardless 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 the custody, control or
supervision of the City or its agent(s) for the purposes of transporting, storing, installing or
performing other services to the artwork.
ARTICLE 5: ARTIST'S REPRESENTATIONS AND WARRANTIES
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.
f. All Artwork created or performed by the Artist under this Agreement, whether created by the
Artist alone or in collaboration with others, shall be wholly original with the Artist and shall not
infringe upon or violate the rights of 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 Agreement.
h. All services performed hereunder sha11 be performed in accordance with all applicable laws,
regulations, ordinances, etc. and with a11 necessary care, skill and diligence.
These representations and warranties shall survive the termination or other extinction of this
Agreement.
5_2 Warranties of Ouality and Condition
a. The Artist represents and warrants that all work will be performed in accordance with
professional "workmanlike" standazds 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 19(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( fl.
d. If within one (1) year the City observes any breach of warranty described in this Section 5.2 that
is cwable 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 prompmess.
e. If after one (1) year the City observes any breach of warranty 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 Artist'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 standazd
of public display.
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ii. Foreseeable exposure to the elements and general wear and tear will cause the
Artwork to experience only minor re}iairable damages and will not cause the
Artwork to fall below an acceptable standazd of public display.
iii. With general routine cleaning and repair, and within the context of foreseeable
exposure to the elements and general wear and tear, the Artwork will not
experience ineparable conditions that do not fall within an acceptable standard of
public display, including mold, rust, fracturing, 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 and shall
not be held liable for manufacturer's defects. 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 specifications 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 Artwork as the Artist's creation and request
that all credits be removed from the Artwork and reproductions thereof until the
Artwork's condition is satisfactorily repaired.
ARTICLE 6: INSURANCE
6_1 General
a. The Artist acknowledges 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 where such loss occurs.
b. Terms for the procwement and duration of insurance as well as required inswance policies are
provided and described in E�ibit D.
The Artist shall, prior to the execution of this Agreement, provide certificates of insurance
evidencing Worker's Compensation, Employer's Liability, General Liability and Automobile
Liability inswance. 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.
6.2 Indemnification
a. The Artist shall 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: attorney's fees at trial and appellate levels; reasonable
investigative and discovery costs; court costs; claims for bodily injury or death of persons and for
loss or damage to property, except as provided 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/or installation of the artwork as a result of the duties and
obligations as required by this Agreement or that which has resulted or alleged to have resulted
from the negligent acts or omissions or other wrongful conduct of, or the infringement of any
copyright by the Artist and/or their representative, subcontractors, employees and agents in
connection with the Artist's performance pursuant to this Agreement.
21
b. To the extent of Florida Statute 768.28, the City shall indemnify the Artist, Artist's
representatives, subcontractors, agents or employees from any claims brought arising out of a
negligent breach of this Agreement or any negligent occunence which occurs pursuant to the
performance of this Agreement by the City, its respective officers, employees, agents and
servants. 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 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.
d. This indemnification shall survive the termination or expiration of this Agreement.
e. 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
7.1 Title
Title to the Artwork shall pass to the City upon the City's written final acceptance and payment for the
Artwork pursuant to E�ibit F. The Artist shall provide the City with a Transfer of Title in substantially
the form attached hereto as E�ibit F.
22
7_2 Ownership of Documents
One set of presentation materials prepared and submitted under this Agreement shall be retained by the
City for possible exhibition and to hold for permanent safekeeping.
7 3 Co�,yri�,ht Ownership
The Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. § 101 et seq., as the sole author of
the Artwork for the duration of the copyright.
7_4 Reproduction Ri ts
a. In view of the intention that the final Artwork shall be unique, the Artist shall not make any
additional exact duplicate three-dimensional reproductions of the fnal 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 of 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 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.
c. All reproductions by the City shall contain a credit to the Artist and a copyright notice in
substantially the following form: CoQyrig,ht � Cliff Garten Studio [date of completion].
d. The Artist shall use the Artist's best efforts in any public showing or resume use of reproductions
to give acknowledgment to the City in substantially the following form: "an original artwork
commissioned by the City of Clearwater's Public Art & Design Program."
23
e. The Artist shall, at the Artist's expense, cause to be registered with the United States Register of
Copyrights, a copyright of the Artwork in the ArtisYs name.
f. 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.
g. Third Party Infringement
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
8_1 General
a. The Artist retains all rights under state and federal laws including § 106A of the Copyright Act of
1976.
b. The City agrees that it will not intentionally alter, modify, change, destroy or damage the Artwork
without first obtaining permission 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 identification plaque and all
amibutive references to the Artist at its own expense within fourteen (14) days of receipt of the
notice. No provision of this Agreement shall obligate the City to alter or remove any such
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.
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8.2 Alterations of Site or Removal of Artwork
a. The City shall notify the Artist in writing upon the adoption of a plan 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 ganted the right of consultation regarding
the 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 ArtisYs expense.
b. The Artwork may be removed or relocated or destroyed by the City should the Artist and the City
not reach mutual agreement on the removal or relocation of the Artwork after a period not to
exceed ninety (90) days after written notice to the Artist. During the ninety (90) day period, the
parties shall engage in good faith negotiations concerning the Artwork's removal or relocation.
c. In the event of changes in building codes or zoning laws ar 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.
d. 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.
e. This clause is intended to replace and substitute for the rights of the Artist under the Visual
Artists' Rights Act of 1990 to the extent that any portion of this Agreement is in direct conflict
with those rights. The parties acknowledge that this Agreement supersedes that law to the ea�tent
that this Agreement is in direct conflict therewith.
25
ARTICLE 9: PERMANENT RECORD
The City shall maintain on permanent file a record of this Agreement and of the location and disposition
of the Artwork.
ARTICLE 10: ARTIST AS AN INDEPENDENT CONTRACTOR
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 himself 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 the Artist's T� Identification Number and any proof of such number as
requested by the City.
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.
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 to assign this Agreement ar 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 obligations 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.
26
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 other remedy available to the Ciry, 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.
b. Either party may terminate this Agreement without recourse by the other 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; invasion by extraterrestrial entity or
entities; superior 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.
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 prior to the
date of termination, consistent with the schedule of payments set forth in E�ibit B 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 Exhibit B with allowance for lost opportunities, unless the parties come to a settlement
otherwise.
d. 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, ageements 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.
27
e. If 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. The Artist shall provide an
accounting of such. All finished and unfinished drawings, sketches, photographs and other
Artwork products prepared and submitted or prepared for submission by the Artist under this
Agreement 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 all 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
forth in E�ibit 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 of termination.
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 complete this Agreement due to death or incapacitation, such death or
incapacity will not be deemed a breach of this Agreement or a default on the part of the Artist for the
purpose of Article 14. However, nothing in this Article shall obligate the City to accept the Artwork.
28
a. In the event of incapaciTy, the Artist shall assign the ArtisYs obligations 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 may elect to terminate this Agreement. T'he Artist shall retain all
rights under Article 7 and Article 8. The Artwork and any reproductions thereof shall contain a
credit to the Artist and a copyright notice in substantially the following form: Co�,� t � Cliff
Garten Studio [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 of 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.
29
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,
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 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:
For the City: City Manager
City of Clearwater
112 South Osceola Avenue
Clearwater, FL 33756
For the Artist: Cliff Garten Studio
1315 Preston Way
Venice, CA 90291
ARTICLE 16: WANER
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 required 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
30
business hours, upon written request by the City. Copies of such documents shall be provided to the City
for inspection when it is practical to do so. Access to such records and documents shall also be granted to
any party authorized by the Artist, the ArtisYs representatives, or the Artist's successors-in-interest. The
City will comply with any open records law applicable to these records.
ARTICLE 18: CONFLICT OF INTEREST
The Artist and City shall avoid all conflicts of interest or appeazance 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 to 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 for 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.
31
ARTICLE 21: CONFLICTS OF LAW
If any term, covenant, condition or provision of this Agreement, or the application thereof 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
effect and shall in no way be affected, impaired or invalidated thereby to the e�rtent 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, agreements and
conditions between the parties. No verbal agreements or conversations between the parties prior to the
execution of this Agreement shall affect or modify any of the terms or obligations.
ARTICLE 24: 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.
32
ARTICLE 25: INTEPRETATION
This Agreement shall be interpreted under and in accordance with the laws of the State of Florida.
ARTICLE 26: CONSTRUCTION OF AGREEMENT
This Agreement shall not be construed more strictly against one party than another merely by virtue of the
fact that it may have been prepared by one of the parties, it being acknowledged that both the Artist and
the City have substantially and materially contributed to the preparation thereof.
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 omissions shall not invalidate the remaining provisions of this
Agreement.
ARTICLE 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.
33
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EXHIBIT B
SCHEDULE
*This schedule will be subject to change unon mutual agreement of both the Citv of Clearwater and the Artist*
City Council review and approval of contract
First payment authorized and invoiced
Fabrication desi�n be�ins
Design plans reviewed by City of Clearwater; permit issued
Second payment authorized and invoiced
Fabrication comqleted
City prepares site for footing and lightin�
Footing poured and lighting setup
City inspection of footing and lighting (if
City completes mound construdion
Third pavment authorized and invoiced
setu
uired)
Crating and shipping of completed sculpture
Sculpture arrives on site; inspection of sculpture
Installation begins
City inspection of installation; punch-list created
Artwork accepted b�
Fourth and final pay
Citv completes shell
authorized and invoiced
and landscapin�
�
January 17, 2013
January 18, 2013
February 1, 2013
March 1, 2013
May 1, 2013
Oct. 2013 — Jan. 2014
June 2013
July 2013
TBD
�ugust 2013
�u�ust 2013
Oct. 2013 — Jan. 2014
TBD
TBD
TBD
TBD
TBD
TBD
EXHIBIT C
BUDGET
Provided bv the Citv of Clearwater
Site preparation and mound construction, landscaping, shell
37
EXHIBIT D
INSURANCE
The 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 following insurance policies:
General Liabilitv Insurance:
The Artist shall procure and maintain General Liability insurance, with limits of not less than
$1,000,000 per occurrence, Combined Single Limit for Bodily Injury and Property Damage,
including Contractual Liability, Personal Injury, Projects and Completed Operations. The Artist shall
obtain such insurance prior to transporting and installing the Artwork at the Site and name the City
as additionally insured on the policy.
Certificates of Insurance:
The Artist shall, prior to the execution of this Agreement, provide certificates of insurance
evidencing Worker's Compensation, Employe�'s Liability, General Liability and Automobile Liability
prior to the installation of the Artwork at the Site. 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.
38
EXHIBIT E
MAINTENANCE MANUAL
To be provided by Artist at a later date
39
EXHIBIT F
TRANSFER OF TITLE/
CERTIFICATE OF APPROVAL AND ACEPTANCE
Clearwater Public Art and Design Program
Project: Clearwater Harbor Marina
Artwork: `Middens' by Cliff Garten Studio (Venice, CA)
This certifies that the artwork entitled `Middens' has been completed, in significant form to the design
presented by artist Cliff Garten of Cliff Garten Studio (1315 Preston Way, Venice, CA 90291).
The City of Clearwater, then, hereby accepts the artwork entitled `Middens' into its Public Art and Design
Program collection through the purchase and transfer of title to the aforementioned artwork.
Cliff Garten, Cliff Garten Studio, Artist Date
City of Clearwater representative Date
Witness
40
Date
EXHIBIT G
AFFADAVIT OF NO LIENS
This exhibit certifies that there are no liens against the artwork entitled `Middens' designed and
fabricated by artist Cliff Garten of Cliff Garten Studio (1315 Preston Way, Venice, CA 90291).
Cliff Garten, Cliff Garten Studio, Artist Date
City of Clearwater representative Date
Witness
41
EXHIBIT H
CERTIFICATE OF WARRANTY
By signing below, Cliff Garten of Cliff Garten Studio (1315 Preston Way, Venice, CA 90291) certifies
that as the artist associated with the sculpture entitled `Middens' that the artwork is hereby under warranty
and is guaranteed against defects in workmanship, as defined in Article 5, Section 5.2 of this Agreement,
for the period of one (1) year commencing on the date signed below.
Date of initiation of warranty
Cliff Garten, Cliff Garten Studio, Artist Date
City of Clearwater representative Date
Witness
42