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AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK (6)AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK THIS AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK MADE AND entered into this 21St day of iay 2018 by and between Gustav Ocampo . and Lina Ocampo (hereafter called the "ARTIST") whose address is 1624 Cle€ er, FL 56 gel Dr, N and the CITY OF CLEARWATER, FLORIDA, a municipal corporation of the State of Florida, located at 112 South Osceola Avenue, Clearwater, FL 33756 (hereafter called the "CITY"). WITNESSETH: WHEREAS, the CITY has implemented the Clearwater Public Art and Design Program (hereafter called the "PROGRAM") pursuant to ORDINANCE NO. 7489-05 and its amendment ORDINANCE NO. 8026-09 by allocating not less than one percent (1%) of the total construction budget of eligible capital improvement projects for the purchase and installation of on-site public artwork; and WHEREAS, the City; facility is an eligible capital improvement project subject to PROGRAM requirements; and WHEREAS, the ARTIST was selected by the CITY through an Limited Call to Artists procedure adopted by the CITY to commission the ARTWORK, as described in 1T ."A and WHEREAS, the ARTIST wishes to create a unique ARTWORK valued at $ to be installed in a public space inside and outside the Clea located at or near 2 6: ; and Comm WHEREAS, the ARTIST and CITY wish to undertake the obligations expressed herein; Now, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, it is hereby agreed by and between the parties as follows: 1. RECITALS The foregoing recitals are incorporated into and made a part of this AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK, and the parties acknowledge and agree that such recitals are true and correct. 2. TERM OF AGREEMENT 2.1. Duration This AGREEMENT shall be effective on the date that this contract has been signed by both parties, and, unless terminated earlier pursuant to such provisions in the AGREEMENT, shall extend until submission of final payment to the ARTIST by the CITY under the S ule' orm S r � chedl as . "B". Extension of time of performance hereunder may be granted upon the request of one party and the consent of the other thereto, which consent shall not be unreasonably withheld. Such extension shall be in writing, signed by both parties, and attached to the Schede f 'erfor ad ce if. s " 3. SCOPE OF SERVICES 3.1. ARTIST Obligations 3.1.1. The ARTIST shall perform all services and furnish all supplies and materials as necessary for the design, fabrication, and installation of the ARTWORK at the SITE in accordance with the specified d e of Sea ttached as E) 'W% Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this AGREEMENT. 3.1.2. The ARTIST shall determine the artistic expression, design, dimensions, and materials of the ARTWORK, subject to review and acceptance by the CITY as set forth in this AGREEMENT. To ensure that the ARTWORK as installed shall not interfere with the intended use of the SITE, pedestrian and other traffic flow, parking, and safety devices and procedures at the SITE, the ARTIST'S proposal shall be reviewed and approved by applicable CITY departments such as Engineering, Risk Management, and others, and, where appropriate, the project architect to ensure compliance with these objectives. 3.1.3. The ARTIST will prepare drawings detailing the ARTWORK and its integration and relation to the SITE. Such drawings will conform to all applicable federal, state, and local laws and regulations. 3.1.4. The ARTIST represents that the ARTWORK is made of durable material. 3.1.5. The ARTIST shall prepare the design concept described in of this AGREEMENT. The attached as EXHIBIT "A" shall include a description of all materials and products utilized in the ARTWORK. 3.1.6. The ARTIST shall prepare a corresponding budget described in Artwork Budget attached as EX IBIT 3.1.7. The ARTIST shall complete the fabrication of the ARTWORK by the scheduled installation date as provided in Schedule of Perforce bl hed of this AGREEMENT. 3.1.8. The ARTIST, using the ARTIST'S own, or hired, personnel and equipment is fully responsible for the costs and handling involved in the delivery of the ARTWORK to the SITE, unless otherwise agreed by both parties. The ARTIST shall arrange the transportation of the ARTWORK and shall supervise and approve the installation of the ARTWORK at the SITE. 3.1.9. The ARTIST shall provide required insurance in amounts and limits as specified in Section 12,1NSURANCE of this AGREEMENT. 3.1.10. The ARTIST shall provide a scheduled maintenance manual with a description of all materials and products utilized in the ARTWORK and the required care and upkeep involved, included in substantially the form attached hereto as the attached as 3.1.11. The ARTIST shall provide photographic documentation of the ARTWORK. 3.1.12. The ARTIST shall supply the CITY with a written condition report of the ARTWORK after installation. 3.1.13. The ARTIST shall be available with reasonable advance notice for pre- arranged meetings, ceremonies and the like, as necessary for the period of one year following the installation of the ARTWORK at the SITE. 3.2. CITY Obligations 3.2.1. The CITY shall be responsible for providing the ARTIST copies of existing designs, drawings, reports, list of required permits, and other existing relevant data, if any, which is needed by the ARTIST in order to perform the services listed in this AGREEMENT. 3.2.2. The CITY shall be responsible for compliance with all applicable laws and regulations, including but not limited to, zoning or environmental regulations and will provide the required permits for the installation of the ARTWORK. 3.2.3. The CITY shall prepare the SITE in accordance with the specifications detailed in the approved design concept in Section 4, DESIGN of this AGREEMENT. The CITY shall be responsible for all expenses, labor, and equipment as necessary to prepare the SITE for the timely transportation and installation of the ARTWORK. The CITY shall complete the SITE preparations by the scheduled installation date as provided in dasE'y $'7 of this AGREEMENT or shall contact the ARTIST in writing informing him or her of any delays. 3.2.4. The CITY shall coordinate and arrange with the ARTIST for the installation of the ARTWORK at the SITE as provided in Schedule- of Perforce ce of Services attached','as IBITm"B" of this AGREEMENT. 3.2.5. The CITY shall provide and install a plaque on or near the ARTWORK containing a credit to the ARTIST as provided in Name -,p1 D`l MTPT.,„ of this AGREEMENT. 3.2.6. The CITY shall routinely clean and maintain the ARTWORK after final acceptance of the ARTWORK and will abide by the recommendations described and included in substantially the form attached hereto as the 4. DESIGN 4.1. Concept/Schematic 4.1.1. The ARTIST was selected pursuant to a competition organized for the procurement of an artist to design and fabricate an ARTWORK suitable for the current project. The ARTIST has submitted to the CITY the design concept (the "DESIGN") in the form of materials including, but not limited to, detailed color drawings, models, and/or other documents as are required to present a meaningful representation of the ARTWORK. 4.1.2. The ARTIST has visited, examined, researched, and considered the SITE and its surrounding area. The ARTIST shall also consulted with representatives from the CITY and the community and consider their input and concerns. 4.1.3. The DESIGN will include: a description of the method by which the ARTWORK is to be fabricated and installed; a description of any operational, maintenance, and conservation requirement for the ARTWORK; a description of the integration and placement of the ARTWORK at the SITE and any preparations that may be required by the CITY including, but not limited to, any changes or modifications to any utility system or structure of the SITE as necessary. The CITY makes no representations that utility systems or structures will be modified to accommodate ARTWORK and retains sole discretion to modify same. 4.1.4. The DESIGN must provide sufficient detail to permit the CITY to assure compliance with all applicable federal, state, and local laws, ordinances and/or regulations. 4.1.5. The ARTIST shall present to the CITY recommendations on the scheduled maintenance of the ARTWORK included in substantially the form attached hereto as the Sohl 4.2. Approval 4.2.1. The ARTIST has submitted the DESIGN, the CITY has notified the ARTIST in writing of its approval of the DESIGN. The CITY shall notify the ARTIST of any revisions to the DESIGN as are necessary for the ARTWORK to comply with any applicable federal, state, and local laws, ordinances and/or regulations and other reasons including, but not limited to, ensuring the physical integrity of the ARTWORK or its installation at the SITE. If agreed upon by both parties, such revisions will become a part of the accepted DESIGN. 5. BUDGET AND SCHEDULE 5.1. Budget 5.1.1. The ARTIST shall prepare a budget, which shall include costs for: gross materials and applicable sales tax; ARTIST'S time invested in coordination, fabrication, and supervision of installation; fees for required licenses, permits, and similar legal authorizations; insurance; ARTIST'S travel; transportation of the ARTWORK to the SITE; itemized installation costs; any applicable local, state, or federal taxes; and a ten -percent (10%) contingency to cover any unforeseen costs that may arise. This budget will be described as worl Bn et cached as EXHIBIT zr of this AGREEMENT. 5.1.2. If the ARTIST incurs costs in excess of the amount listed in the budget, the ARTIST shall pay such excess from the ARTIST'S own funds unless the ARTIST previously obtained approval for such costs from the CITY. 5.2. Schedule 5.2.1. A schedule for the payment of budget installments is described in the of this AGREEMENT. 6. FABRICATION 6.1. The ARTIST shall fabricate and supervise the installation of the ARTWORK in substantial conformity with the approved DESIGN. 6.2. The CITY shall have the right to review the ARTWORK at reasonable times during the fabrication thereof upon reasonable notice. 6.3. If the CITY, upon review of the ARTWORK, determines that the ARTWORK does not conform to the DESIGN or REVISED DESIGN, the CITY reserves the right to notify the ARTIST in writing of the deficiencies and that the CITY intends to withhold the next budget installment as described in Schedule of Peri( T' of this AGREEMENT. 6.4. The ARTIST will promptly cure the CITY'S objections and will notify the CITY in writing of completion of the cure. The CITY shall promptly review the ARTWORK, and upon approval shall release the next budget installment as per the of this AGREEMENT. If the ARTIST disputes the CITY'S determination that the ARTWORK does not conform, the ARTIST shall promptly submit reasons in writing to the CITY within thirty (30) days of the CITY'S prior notification to the contrary. The CITY shall make reasonable efforts to resolve the dispute with the ARTIST in good faith. However, a final determination as to whether the ARTIST has complied with the terms of this AGREEMENT shall remain with the CITY. 6.5. The ARTIST shall notify the CITY in writing when fabrication of the ARTWORK has been completed, and that the ARTWORK is ready for delivery and installation at the SITE. The artist shall include photographs to certify that the artwork has been completed. 6.6. The CITY shall inspect the ARTWORK within thirty (30) days after receiving notification pursuant to Paragraph 6.6, prior to installation, to determine that the ARTWORK conforms to the DESIGN and to give final approval of the ARTWORK. The CITY shall not unreasonably withhold final approval of the fabricated ARTWORK. In the event that the CITY does withhold final approval, the CITY shall submit the reasons for such disapproval in writing within fifteen (15) days of examining the fabricated artwork. The ARTIST shall then have thirty (30) days from the date of the CITY'S notice of the disapproval to make the necessary adjustments to the fabricated ARTWORK in accordance with such writing. The ARTIST shall not be penalized for any delay in the delivery and installation of the ARTWORK to the SITE as a result of modifications to the DESIGN requested by the CITY. 6.7. 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. 7. CHANGES TO APPROVED DESIGN 7.1. Prior to the execution of any substantial change in the approved DESIGN, the ARTIST shall present proposed changes in writing to the CITY for further review and approval. The ARTIST must provide a detailed description of any significant changes in the artistic expression, design, dimensions and materials of the ARTWORK that is not in significant & substantial conformity with, the already approved DESIGN. Such notice will also include a detailed description of any additional costs that may be incurred or changes in the budget. A significant change is any change which materially affects installation, scheduling, site preparation or maintenance of the ARTWORK or the concept of the ARTWORK as represented in the DESIGN. 7.2. If the CITY approves the changes, the CITY shall promptly notify the ARTIST in writing. 7.3. If the CITY disapproves of the changes, the CITY shall promptly notify the ARTIST in writing and the ARTIST shall continue to fabricate the ARTWORK in substantial conformity with the DESIGN, unless mutually agreed upon by both parties. 7.4. The ARTIST'S fee shall be equitably adjusted for any increase or decrease in the ARTIST'S cost of, or time required for, performance of any services under this AGREEMENT as a result of revisions made to the DESIGN, at the request of the CITY, under Section 7, CHANGES TO APPROVED DESIGN of this AGREEMENT. Any claim of the ARTIST for adjustment under this paragraph must be asserted within thirty (30) days after the date of revision by the ARTIST. 8. INSTALLATION 8.1. Upon the CITY'S final approval of the fabricated ARTWORK, as being in conformity with the DESIGN, the ARTIST shall deliver and supervise the installation of the completed ARTWORK to the SITE in accordance with the schedule provided for in the Schedule of Performance of Services attach EXHIBIT "B' .. 8.2. The ARTIST will coordinate closely with the CITY to ascertain that the SITE is prepared to receive the ARTWORK. The ARTIST must notify the CITY of any adverse conditions at the SITE that would affect or impede the installation of the ARTWORK. The ARTIST, and any applicable CITY representatives or subcontractors are responsible for timely installation of the ARTWORK as per the Sched �cex services# ached} as B IT The ARTIST will confer and coordinate with the CITY to ensure timely coordination with the CITY'S construction team. 8.3. The ARTIST shall be present to coordinate and supervise the installation of the ARTWORK. 8.3.1. Upon installation of the ARTWORK, the ARTIST shall provide the CITY with full written instructions for the appropriate maintenance and preservation of the ARTWORK, included in substantially the form attached hereto as the Schedule of Artwork I1�t along with product data sheets for any material or finish used. The ARTWORK must be durable, taking into consideration that the SITE is an public space that will be exposed to elements such as temperature variation, and considerable movement of people and equipment. The ARTIST must ensure that all maintenance requirements will be reasonable in terms of time and expense. Upon acceptance, the CITY is responsible for proper care and maintenance of the ARTWORK. 9. APPROVAL AND ACCEPTANCE 9.1. The ARTIST shall notify the CITY in writing when all services as required by this AGREEMENT prior to this paragraph have been completed as included in substantially the form attached hereto as the Certification of Completion`� nd shed as E BIT F" 9.2. The CITY shall promptly notify the ARTIST of its approval of the completed ARTWORK within thirty (30) days after the ARTIST has submitted written notice pursuant to Paragraph 9.1 above. 9, The effective day of final acceptance of the ARTWORK shall be the date of the delivery of the completed ARTWORK to the CITY at the SITE. The final acceptance shall be understood to mean that the CITY acknowledges completion of the ARTWORK and that the CITY confirms that all services as required of both parties by this AGREEMENT prior to this Section 9, APPROVAL AND ACCEPTANCE have been completed, included in substantially the form attached hereto as the Approval. and Accept «o: d 9.4. If the CITY disputes that all the services have not been performed, the CITY shall notify the ARTIST in writing of those services the ARTIST has failed to perform within fifteen (15) days after the ARTIST submitted written notice pursuant to Fn of Com letion MEM r;Ps and Paragraph 9.1 above. The ARTIST shall promptly perform those services indicated by the CITY. 9.5. If the ARTIST disputes the CITY'S determination that not all services have been performed the ARTIST shall submit reasons in writing to the CITY within fifteen (15) days of the CITY'S prior notification to the contrary. The CITY shall make reasonable efforts to resolve the dispute with the ARTIST in good faith. However, final determination as to whether all services have been performed shall remain with the CITY. 9.6. Upon the resolution of any disputes that arise under Section 9, APPROVAL AND ACCEPTANCE of this AGREEMENT, the CITY shall notify the ARTIST of its final acceptance of the ARTWORK pursuant to Appal .and FA�e and.Pa gr ph,9.3. 9.7. After final acceptance of the ARTWORK, the ARTIST shall be available at such times as may be mutually agreed upon by the CITY and the ARTIST to attend any public meetings and community outreach functions, as well as any inauguration or presentation ceremonies relating to the dedication of the ARTWORK within a reasonable time frame of one year. 9.7.1. During such public presentations by the ARTIST, the ARTIST shall acknowledge the CITY'S role in funding the ARTWORK. 9.7.2. The CITY shall be solely responsible for coordinating public information materials and activities related to public presentations. 10. TAXES 10.1. Should any state or federal sales, use or excise taxes, or similar charges relating to the services and materials under this AGREEMENT shall be paid by the ARTIST in a timely fashion. The CITY shall report payments made to the ARTIST annually to the Internal Revenue Department in a 1099 statement. 11. RISK OF LOSS 11.1. The ARTIST shall bear the risk of loss or damage to the ARTWORK including, but not limited to: theft; vandalism or any act by a third party; and damage caused by acts of god, war, or natural conditions/disasters including, but not limited to, floods, hurricanes, tornadoes, lightning, and any loss occurring during the fabrication, storage, transportation, and delivery regardless of where such loss occurs until the CITY'S final acceptance of the ARTWORK under Section 9, APPROVAL AND ACCEPTANCE. The ARTIST shall take such measures as are reasonably necessary to protect the artwork from loss or damage. 12. INSURANCE 12.1. General 12.1.1. The ARTIST acknowledges that until final acceptance of the ARTWORK by the CITY under Section 9, APPROVAL AND ACCEPTANCE, any injury to property or persons caused by the ARTWORK or any damage to, theft of, vandalism to, or acts of God affecting the ARTWORK are the sole responsibility of the ARTIST, including, but not limited to, any loss occurring during the creation, storage, transportation, delivery, and installation of the ARTWORK, regardless of where such loss occurs. 12.1.2. Terms for the procurement and duration of insurance and required insurance policies follow below. 12.2. Required Insurance 12.2.1. The ARTIST shall place and maintain for the periods prior to and during the installation of the ARTWORK, and pay the cost thereof the following insurance policies: 12.2.1.1. Worker's Compensation and Employer's Liability Insurance: If the ARTIST has employees, the ARTIST shall procure and maintain statutory Worker's Compensation Insurance and Employer's Liability Insurance with limits of no less than $500,000 per occurrence for the jurisdiction where the work is being performed and shall provide a waiver of subrogation against the CITY. If the ARTIST has no employees as defined by Florida Statues and Regulations the ARTIST shall submit a letter stating that he or she is exempt from this requirement. 12.2.1.2. General Liability Insurance: The ARTIST shall procure and maintain General Liability Insurance, with limits of not less than $1,000,000 per occurrence, Combined Single Limit for Bodily Injury and Property Damage, including Contractual Liability, Personal Injury, Projects and Completed Operations. The ARTIST shall obtain such insurance prior to transporting or installing the ARTWORK at the SITE and name the CITY as an additional insured on the policy. 12.3. Certificates of Insurance The ARTIST shall, prior to the execution of this AGREEMENT, provide certificates or exemptions of insurance evidencing Worker's Compensation and General Liability prior to the installation of the ARTWORK. If any insurance policy is due to expire during the period of installation, the ARTIST shall provide a certificate of renewal evidencing the required insurance coverage to the CITY not less than fifteen (15) days prior to the expiration date. 13. INDEMNIFICATION 13.1. The ARTIST agrees to indemnify and hold free and harmless, assume legal liability for and defend the CITY and its officers, employees, agents, and servants, whether they are current or former, from and against all actions, claims, liabilities, assertions of liability, losses, costs, and expenses, in law or in equity, including but not limited to attorneys' fees at trial and appellate levels, reasonable investigative and discovery costs, court costs, or claims for bodily injury or death of persons and for loss or damage to property, except as provided for herein, of every kind and nature whatsoever, which in any manner directly or indirectly may arise or be alleged to have arisen, from the fabrication, transportation, and installation of the ARTWORK as a result of the duties and obligations as required by this AGREEMENT or that which has resulted or alleged to have resulted from the negligent acts or omissions or other wrongful conduct of, or the infringement of any copyright by, the ARTIST and/or its subcontractors, employees, and agents in connection with the ARTIST'S performance pursuant to this AGREEMENT. 13.2. Each party shall immediately notify the other of any written claim regarding any matter resulting from or relating to the party's obligations under this AGREEMENT. Each party shall cooperate, assist, and consult with the other in the defense or investigation of any such claim arising out of or relating to the performance of this AGREEMENT. 13.3. This indemnification shall survive the termination or expiration of this AGREEMENT. 14. WARRANTIES OF QUALITY AND CONDITION 14.1. The ARTIST represents that all work will be performed in accordance with professional standards and free from defective or inferior materials and fabrication (including any defects consisting of "inherent vice," or qualities that cause or accelerate deterioration of the ARTWORK for one (1) year after the date of final acceptance by the CITY, included in substantially the form attached hereto as they 4 4" 14.2. The ARTIST represents and warrants that the ARTWORK and the materials used are not currently known to be harmful to public health and safety. 14.3. The ARTIST represents and warrants that reasonable maintenance of the ARTWORK will not require procedures substantially in excess of those described in the maintenance and preservation recommendations submitted by the ARTIST pursuant to the item included in substantially the form attached hereto as the Schedule of Artwork Mair anee attached as EXHIBIT "D 14.4. The ARTIST shall provide the CITY with a parts list and a written description of the regular cleaning and maintenance needs of the ARTWORK. Routine cleaning and maintenance of the ARTWORK shall be the responsibility of the CITY. The ARTIST shall be available for reasonable consultation on maintenance and repair throughout the ARTIST'S lifetime. 14.5. If within one (1) year the CITY observes any breach of warranty described in this Section 14 WARRANTIES OF QUALITY AND CONDITION that is curable by the ARTIST, the ARTIST shall, at the request of the CITY, cure the breach promptly, satisfactorily and consistent with professional conservation standards, at no expense to the CITY. The CITY shall give notice to the ARTIST of such breach with reasonable promptness. 14.6. If within one (1) year the CITY observes a breach of warranty that is not curable by the ARTIST, the ARTIST is responsible for reimbursing the CITY for damages incurred by the CITY as a result of the breach. 14.7. If after one (1) year the CITY observes any breach of warranty that is curable by the ARTIST, the CITY shall contact the ARTIST to make or supervise repairs or restorations at a reasonable fee. The ARTIST shall have the right of first refusal to make or supervise repairs or restorations. Following ninety (90) days of attempted communication, should the ARTIST be unavailable or unwilling to accept reasonable compensation under the industry standard, the CITY may seek the services of a qualified restorative conservator and maintenance expert. 14.8. Acceptable Standard of Display. The ARTIST represents and warrants that: 14.8.1. With general routine cleaning and repair, and within the context of forseeable exposure to the elements and general wear and tear, the ARTWORK will not experience irreparable conditions that do not fall within an acceptable standard of public display, including mold, rust, fracturing, staining, chipping, tearing, abrading, and peeling. 14.8.2. To the extent the ARTWORK incorporates products covered by a manufacturer's warranty, the ARTIST shall provide copies of such warranties to the CITY. 15. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 15.1. Title 15.1.1. Title to the ARTWORK shall pass to the CITY upon the CITY'S written final acceptance and payment for the ARTWORK pursuant to Section 9, APPROVAL AND ACCEPTANCE and Schedule o rmai `"of S :h+ shall provide the CITY with a B a of this AGREEMENT. The ARTIST T 15.2. Ownership of Documents 15.2.1. One set of presentation materials prepared and submitted under this AGREEMENT shall be retained by the CITY for permanent safekeeping. 15.3. Copyright Ownership 15.3.1. The ARTIST retains all rights under the Copyright Act of 1976, 17 U.S.C. § 101 et seq., as the sole author of the ARTWORK. 15.4. Reproduction Rights 15.4.1. The ARTIST grants to the CITY and its assigns an irrevocable license to make two-dimensional reproductions of the ARTWORK for non- commercial purposes, including, but not limited to, reproductions used in brochures, media publicity, and exhibition catalogues or other similar publications provided that these rights are exercised in a tasteful and professional manner. 15.4.2. All reproductions by the CITY shall contain a credit to the ARTIST and a copyright notice in substantially the following form: Copyright © [ARTIST'S name, date of publication]. 15.4.3. If the AGENCY 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. 15.4.4. Third Party Infringement: The CITY is not responsible for any third party infringement of the ARTIST'S copyright and not responsible for protecting the intellectual property rights of the ARTIST. 16. ARTIST'S RIGHTS 16.1. General 16.1.1. The ARTIST retains all rights under state and federal laws including §106A of the Copyright Act of 1976. 16.1.2. The CITY agrees that it will not intentionally alter, modify, change, destroy, or damage the ARTWORK without first obtaining permission from the ARTIST. 16.2. Alterations of Site or Removal of Artwork 16.2.1. The CITY shall notify the ARTIST in writing upon the adoption of a plan of construction or alteration of the SITE which would entail removal or relocation of the ARTWORK which might result in the ARTWORK being destroyed, distorted, or modified. The ARTIST shall be granted the right of consultation regarding the purchase, removal or relocation of the ARTWORK. If the ARTWORK cannot be successfully removed or relocated as determined by the CITY, the ARTIST may disavow the ARTWORK or have the ARTWORK returned to the ARTIST at the ARTIST'S expense. 16.2.2. The ARTWORK may be removed or relocated or destroyed by the CITY should the ARTIST and the CITY not reach mutual agreement on the removal or relocation of the ARTWORK after a period not to exceed ninety (90) days after written notice to the ARTIST. During the ninety (90) day period, the parties shall engage in good faith negotiations concerning the ARTWORK'S removal or relocation. 16.2.3. In the event of changes in building codes or zoning laws or regulations that cause the ARTWORK to be in conflict with such codes, laws or regulations, the CITY may authorize the removal or relocation of the ARTWORK without the ARTIST's prior permission. In the alternative, the CITY may commission the ARTIST by a separate agreement to make any necessary changes to the ARTWORK to render it in conformity with such codes, laws or regulations. 16.2.4. If the CITY reasonably determines that the ARTWORK presents imminent harm or hazard to the public, other than as a result of the CITY'S failure to maintain the ARTWORK as required under this AGREEMENT, the CITY may authorize the removal of the ARTWORK without the prior approval of the ARTIST. 17. DEFAULT AND TERMINATION 17.1. Default Failure or refusal of the ARTIST to perform or do any act herein required shall constitute a default. In the event of a default, in addition to any other remedy available to the CITY, the CITY, upon thirty (30) days written notice may terminate this contract. Such termination does not waive any other legal remedies available to the CITY. 17.2. Termination 17.2.1. Either party may terminate this AGREEMENT where performance is rendered impossible or impractical for reasons beyond such party's reasonable control such as, but not limited to, acts of nature; war or warlike operations; governmental regulation or control; public emergency; or strike or other labor disturbance. Notice of termination of this AGREEMENT shall be given to the non -terminating party in writing not less than thirty (30) days prior to the effective date of termination. 17.2.2. The CITY may terminate this agreement upon thirty (30) days written notice to the ARTIST. The CITY shall pay the ARTIST for services performed consistent with the schedule included as EXHIBIT "B" of this AGREEMENT. 17.2.3. If either party to this AGREEMENT shall willfully or negligently fail to fulfill in a timely and proper manner, or otherwise violate any of the covenants, agreements, or stipulations material to this AGREEMENT, the other party shall thereupon have the right to terminate this AGREEMENT by giving written notice to the defaulting party of its intent to terminate, specifying the grounds for termination. The defaulting party shall have thirty (30) days after the effective date of the notice to cure the default. If it is not cured by that time, this AGREEMENT shall terminate. 17.3. Force 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 responsible control will not be considered a breach of contract, provided that such obligations shall be suspended only for the duration of such conditions. 17.4. Death or Incapacity 17.4.1. If the ARTIST becomes unable to complete this AGREEMENT due to death or incapacitation, such death or incapacity will not be deemed a breach of this AGREEMENT or a default on the part of the ARTIST for the purpose of Section 17, DEFAULT AND TERMINATION. However, nothing in this Section shall obligate the CITY to accept the ARTWORK. 17.4.1.1. In the event of incapacity, the ARTIST shall assign the ARTIST'S obligations and services under this AGREEMENT to another artist provided that the CITY, in the CITY'S sole discretion, approves of the new artist. Alternatively, the CITY may elect to terminate this AGREEMENT. Should the CITY terminate this AGREEMENT the ARTIST shall retain all rights under Section 15, OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS and Section 16, ARTIST'S RIGHTS. The ARTWORK and any reproductions thereof shall contain a credit to the ARTIST and a copyright notice in substantially the following form: Copyright © [ARTIST'S name, date of publication]. 17.4.1.2. In the event of death, this AGREEMENT shall terminate effective the date of death. Should the AGREEMENT terminate due to the ARTIST'S death, the ARTIST'S heirs shall retain all rights under Section 15, OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS and Section 16, ARTIST'S RIGHTS 18. MISCELLANEOUS 18.1. Entirety of Agreement This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. No alteration, change, or modification of the terms of this AGREEMENT shall be valid unless made in writing and signed by both parties hereto. 18.2. Record The CITY shall maintain on file a record of this AGREEMENT and of the location and disposition of the ARTWORK. 18.3. Nondiscrimination The CITY nor the ARTIST shall not discriminate, in any way, against any person on the basis of race, sex, color, age, religion, sexual orientation, disability, ethnicity, or national origin, in connection with or related to the performance of this AGREEMENT. 18.4. Captions The captions of each paragraph and headings hereof are added as a matter of convenience and shall be construed to be of no affect in the construction of any provision or provisions hereof. 18.5. Notices Any notices regarding this AGREEMENT given by either party to the other must be in writing and shall be deemed to have been given, delivered or made, as the cause may be (I) when delivered in fact, by personal delivery, or (II) five (5) business days after having been deposited in the U.S. mail, certified or registered, return receipt requested, with sufficient postage affixed and prepaid or (III) one (1) business day after having been deposited with an expedited overnight courier service (such as by way of example but not limited to: U.S. Express Mail, Federal Express, or UPS), addressed to the party to whom notice is intended to be given at the address set forth below: If to the CITY: City Manager City of Clearwater 112 South Osceola Avenue Clearwater, FL 33756 If to the ARTIST: Any party may change the address to which its notices are to be sent by giving the other party written notice of any changes in the manner provided herein, but notice of change of address if effective only upon actual receipt. 18.6. CITY'S Authority The CITY warrants that it has all required authority to enter into this AGREEMENT and to be bound by the terms hereof. 18.7. ARTIST'S Authority The ARTIST warrants that it has obtained all necessary authority through official action of its officers and directors, if necessary, to enter into this AGREEMENT and to be bound by the terms hereof. 18.8. Surviving Covenants The covenants and obligations set forth in this AGREEMENT shall survive the design, fabrication, transportation, and installation of the ARTWORK, unless otherwise provided for herein and shall be binding upon the parties, its heirs, legatees, executors, administrators, assigns, transferees, and all its successors in interest. 18.9. Interpretation This AGREEMENT shall be interpreted under and in accordance with the laws of the State of Florida. 18.10. Construction of Agreement This AGREEMENT shall not be construed more strictly against one party than against another merely by virtue of the fact that it may have been 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. 18.11. 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. 18.12. 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. 18.13. Affidavit of No Liens The ARTIST and the CITY certify that there are no liens against the artwork entitled "Reaching for Knowledge" designed by ARTIST. IN WITNESS THEROF, the parties hereto have caused this AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK to be executed on the date first above written. Appro as to fo tai Owen Kohler Assistant City Attorney CITY OF CLEARWATER, FLORIDA By: IdimatA. A 144,44,uvat William B. Horne II City Manager Attest: Rosemarie Call City Clerk EXHIBIT A ARTWORK DESIGN CONCEPT AND SPECIFICATIONS Design Concept: VIEW 1 Yellow -Blue Description of Artwork: We kept in mind while designing our proposal "Reaching for Knowledge" the interest of the committee for it to be iconic and that energetically and dynamically serve to identify its mission: knowledge, community and empowerment. The sculpture will be constructed using Aluminum sheet: Very good corrosion resistance and finish ability plus excellent weld ability. EXHIBIT B SCHEDULE OF PERFORMANCE OF SERVICES AND PAYMENT June 2018 Finalize and sign contract Initiate invoice to City of Clearwater dispersal of funds to fIf fl fsn fit 20L July 2018 — August 2018 Begin full-scale design concept August 2018 — September 2018 Finalize design concept with City review October 2018 Install completed artwork at East Community Library Third dispersal of funds to artist $20,000.00 (33.3% of artist budget) EXHIBIT C BUDGET FOR ARTWORK Budget for "Reaching For Knowledge" designed and fabricated by artist Gus and Lina Ocampo Valued at $60,000.00 Materials $22,000.00 Artist Design $5,000.00 Production Fee $3,000.00 Fabrication $11,000.00 Labor installation $400.00 Equipment (scissor -lift) $-0.00 General Insurance $300.00 Documentation $100.00 Shipping $200.00 Project contingency (7%) $4,200.00 Artist contingency (8%) $4,800.00 Artist fee (15%) $9,000.00 TOTAL $60,000.00 EXHIBIT D ARTWORK MAINTENANCE SCHEDULE The artwork requires little to no maintenance. It is advised to clean it from dust and spider webs once a year or when the City sees it is needed with water and a soft nylon brush. You will find the anti graffiti product data sheet here: http://www.tiger-coatings.us/fileadmin/user upload/downloads us new/product-data-sheets/tiger- drylac/exterior-applications-non-architectural/TIGER Drvlac Series 44 Anti Graffiti.pdf EXHIBIT E NAMEPLATE AND PLAQUE INFORMATION The nameplate and plaque information will read as follows: Reaching for Knowledge Gustavo and Lina Ocamposilva Clearwater, FL Installed in October 2018 as part of the Clearwater Public Art and Design Program EXHIBIT F CERTIFICATE OF COMPLETION Clearwater Public Art and Design Program Project: Clearwater East Community Library Artwork: "Reaching For Knowledge" by artist Gus and Lina Ocampo This certifies that the artwork entitled "Reaching for Knowledge" has been completed, in significant form to the design, by artist artist Gus and Lina Ocampo (1624 Bel!rose Dr N Clearwater, FL 33756) Gustavo and Lina Ocampo, Artist Date City of Clearwater Representative Date Witness Date EXHIBIT G CERTIFICATE OF APPROVAL AND ACCEPTANCE Clearwater Public Art and Design Program Project: Clearwater East Community Library Artwork: "Reaching For Knowledge" by artist Gus and Lina Ocampo This certifies that the artwork entitled "Reaching for Knowledge" has been completed, in significant form to the design, by artist artist Gus and Lina Ocampo (1624 Bel!rose Dr N Clearwater, FL 33756) The City of Clearwater, then, hereby accepts the artwork entitled "Reaching for Knowledge" into its Public Art and Design Program collection through the purchase of the above titled artwork. x Gustavo and Lina Ocampo, Artist Date City of Clearwater Representative Date Witness Date EXHIBIT H BILL OF SALE AND TRANSFER OF TITLE This BILL OF SALE is executed on this day of November 1st 2018, by Gustavo and Lina Ocampo, (hereinafter "Seller") residing at 1624 Bellrose Dr N Clearwater, FL 33756 for the benefit of the City of Clearwater (hereinafter "Buyer"), residing at 112 S Osceola Ave Clearwater, FL 33756. Seller hereby transfers to Buyer, all rights of the Seller in the following property: The Artwork entitled 'reaching for Knowledge", located in Pinellas County, Florida. For and in consideration of 60,000.00, which has been acknowledged and received by the Seller. The sale and transfer of the property is made on an "AS IS" basis, without any express or implied warranties, with no recourse to the Seller, provided that Seller can issue proof that it has title to the property without any liens or encumbrances. The Buyer has been given the opportunity to inspect, and all property as defined above. The ubyer agrees to accept all property in its existing state. Gustavo and Lina Ocampo, Artist Date City of Clearwater Representative Date Witness Date EXHIBIT 1 CERTIFICATE OF WARRANTY By signing below, Gustavo and Lina Ocampo (1624 Bellrose Dr N Clearwater, FL 33756) certifies that as the designer and fabricator of the artwork entitled "Reaching for Knowledge" that the artwork is hereby under warranty and is guaranteed against defects in workmanship for the period of one year commencing on the date noted below. Date of initiation of warranty Gustavo and Lina Ocampo, Artist Date City of Clearwater Representative Date Witness Date