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AGREEMENT FOR COMMISSION OF ARTWORK - LOGO FOR CITY'S CENTENNIAL ANNIVERSARYAGREEMENT FOR COMMISSION OF ARTWORK THIS AGREEMENT for commission of public artwork made and entered into this 30th day of June, 2014 by and between Michael O'Connell (hereafter called the "Artist ") whose address is 2333 Feather Sound Drive A610, Clearwater, FL 33762 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 seeks to commission a unique logo for the City's centennial anniversary; and WHEREAS, authority lies with the City to make payments for the acquisition, design execution, and fabrication of Artwork, including payments for the support of an artist selection process, design execution, and fabrication of Artwork; 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 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: [GM08- 1801- 016/151741/11 ARTICLE l: SCOPE OF SERVICES 1.1 Recitals The foregoing recitals are incorporated into and made a part of this Agreement for Commission of Artwork, and the Parties acknowledge and agree that such recitals are true and correct. 1_2 Artist's Obligations a. 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. Services shall 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 Agreement. c. The Artist shall be available with reasonable advance notice for meetings, ceremonies and the like, as necessary. 1_3 City'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 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 M 08 -1801- 016/151741/ 11 1_4 Design a. Concept /Schematic The Artist was selected pursuant to a competition organized for the procurement of an artist to design and fabricate an Artwork suitable for the current project. Within thirty (30) days of the Effective Date of this Agreement, the Artist shall submit to the City the design concept (hereafter called the "Design ") in the form of detailed drawings and other supporting documents as necessary as are required to present a meaningful representation of the Artwork. 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. 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. c. Redesign i. The Revised Design will reflect changes made to address the City's stated reasons for disapproval. The City shall notify the Artist in writing whether it approves or [ G M 08 -1801 -016/ 151741 / 11 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 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 shall submit to the Artist a written termination notice with the disapproval. The termination notice shall advise the Artist that this Agreement has been terminated pursuant to this Article. The termination notice shall notify the Artist that the Artist is entitled to retain the compensation paid prior to the termination date, and that the parties are under no further obligation to each other. The termination notice shall conform that the Artist shall retain ownership of all Designs, Revised Designs and renderings thereof submitted as part of the terms of this Agreement. 1.5 Compensation a. The City agrees to pay the Artist a $1,000.00 professional services fee as consideration for the services and performance hereunder, including but not limited to, the design and fabrication of the Artwork. The services fee will be paid at the time of receipt of an invoice from the Artist. b. In no event shall the City be liable for interest or late charges for any late payments. [G M 08- 1801 - 016/151741/1) ARTICLE 2: TERM OF AGREEMENT a. Duration This Agreement shall be effective, nunc pro tunc, on April 3, 2014, ( "Effective Date "), the date on which the Clearwater City Council approved and accepted the Artwork at a duly organized City Council meeting, to be utilized as the City's Centennial logo artwork, and the Parties intended to enter into this agreement to set forth the terms and conditions under which said Artwork would be used, and shall extend until such time as the Parties have fulfilled all obligations hereunder. 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. Provisions expressly intended to survive termination of this agreement shall survive expiration or termination. 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 duration of the condition. Both parties shall take all reasonable steps during the existence of the condition to assure performance of their contractual obligations when the condition no longer exists. Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control will not be considered a breach of contract, provided that such obligations shall be suspended only for the duration of such conditions. [GM08- 1801- 016/151741/1] ARTICLE 3: ARTIST'S REPRESENTATIONS AND WARRANTIES 3.1 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. c. The Artwork (or any duplicate thereof) 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 shall be performed in accordance with all applicable laws, regulations, ordinances, etc. and with all necessary care, skill and diligence. i. These representations and warranties shall survive the termination or other extinction of this Agreement. [GM08- 1801 - 016/151741/1] ARTICLE 4: IMDEMNIFICATION 4_1 General a. The Artist shall indemnify and hold free and harmless, assume legal liability for and defend the City and its officers, employees, agents, servants, and assigns, 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, expect 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 subcontractors, employees and agents in connection with the Artist's performance pursuant to this Agreement. b. 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. c. 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. l G M 08 -1801- 016/ 151741 / 1I ARTICLE 5: OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 5.1 Title Title to the Artwork shall pass to the City upon the City's acceptance and payment for the Artwork. The Artist shall provide the City with a Transfer of Title in substantially the form attached hereto as Exhibit B. 5.2 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. 5.3 Copyright 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. 5_4 Reproduction Rights a. In view of the intention that the final Artwork shall be unique, the Artist shall not make any additional exact duplicate reproductions of the final 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 reproductions of the Artwork for non - commercial purposes, including, but not limited to, reproductions used in brochures, media and event publicity, as athletic uniform patches commemorating the City's Centennial, and exhibition catalogues or other similar publications provided that these rights are exercised in a tasteful and professional manner and the Artwork is not altered from its original [GM08- 1801 - 016/151741/1] design. The Centennial logo athletic uniform patches may be displayed and utilized by all athletic teams, amateur or professional, with which the city has a contractual relationship. c. All reproductions by the City shall contain a credit to the Artist and a copyright notice in substantially the following form: Copyright © Michael O'Connell [2014]. d. If the City wishes to make reproductions of the Artwork for commercial purposes, including, but not limited to, tee shirts, post cards, ornaments 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. e. 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 6: ARTIST'S RIGHTS 6.1 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 all attributive 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 [GM 08- 1801 - 016/151741/11 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. ARTICLE 7: PERMANENT RECORD The City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Artwork. ARTICLE 8: 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 Tax Identification Number and any proof of such number as requested by the City. ARTICLE 9: 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 10: ASSIGNMENT OF ARTWORK The Artwork and services required of the Artist are personal and shall not be assigned by the Artist, sublet or transferred. Any attempt by the Artist to 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 obligations under this [GM08- 1801 - 016/151741/1 ] Agreement, subject to the Artist's consent,; if the Artist refuses to give consent, this Agreement shall terminate. ARTICLE 11: 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 City, the City, upon thirty (30) days written notice, may terminate this contract. Such termination does not waive any other legal remedies available to the City. 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 compensation set forth in 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 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, 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 [G M 08- 1801 - 016/151741/1 ] 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. 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. 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 compensation set forth in 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 with reasonable allowance for lost opportunities. The Artist shall retain possession and title to any studies, drawings, and designs 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. [GM08- 1801 - 016/151741/1] ARTICLE 12: 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 12. 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 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. The Artwork and any reproductions thereof shall contain a credit to the Artist and a copyright notice in substantially the following form: Copyright © Michael O'Connell [2014]. b. In the event of the Artist's death, this Agreement shall terminate the effective date of death. 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. ARTICLE 13: 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: [GMO8- 1801 - 016/151741/1] For the City: For the Artist: ARTICLE 14: WAIVER City Manager City of Clearwater 112 South Osceola Avenue Clearwater, FL 33756 Michael O'Connell 2333 Feather Sound Drive, A610 Clearwater, FL 33762 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 15: 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 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 Artist's representatives, or the Artist's successors -in- interest. The City will comply with any open records law applicable to these records. ARTICLE 16: 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. [G M 08- 1801 - 016/151741/ 11 ARTICLE 17: 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 l 1 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 18: 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 19: 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 extent the remainder of the terms, covenants, conditions or provisions of this Agreement are capable of execution. [ G M 08 -1801 -016/ 151741 / 1 ] ARTICLE 20: 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 21: 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 22: 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. ARTICLE 23: INTEPRETATION This Agreement shall be interpreted under and in accordance with the laws of the State of Florida. ARTICLE 24: 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. [GM08- 1801 - 016/151741/11 ARTICLE 25: 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 26: 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. [GM 08- 1801 - 016/151741/11 07/09/2014 07:31 7275777038 SHARPLINE FLORIDA PAGE 01/02 IN WITNESS THEREOF, the parties hereto have caused this Agreement for Commission ofPublic Artwork to be executed on the date first above written. Approved as to Forms: y Laura Mahony Assistant City Attorney Witness: [GM08.1801- 016/151741/1] By: CITY OF CLEARWATER, FLORIDA William B. Horne II City Manager Attest: Rosemarie Call City Clerk Artist: Michael O'Connell EXHIBIT A CENTENNIAL LOGO ARTWORK [GM08- 1801 - 016/151741/1] 07/09/2014 07:31 7275777038 City of Clearwater Project: Centennial Logo Artist: Michael O'Connell SHARPLINE FLORIDA PAGE 02/02 EXHIBIT B TRANSFER OF TITLE This certifies that the centennial logo artwork included in this Agreement as Exhibit A has been completed, in significant form to the design, by artist Michael O'Connell of 2333 Feather Sound Drive A610, Clearwater, FL 33762, and Michael O'Connell hereby transfers title, releases.and relinquishes all right, title and interest to the Artwork to the City of Clearwater for use as a Centennial logo; and the City of Clearwater, then, hereby accepts the title and centennial logo artwork Into its ownership. idAd Mi ael O'Connell l• rtist 7/9/i Date City of Clearwater Representative Date Witness Date IG M08-1801 -016/151741/13