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AGREEMENT FOR LOAN AND TEMPORARY DISPLAY OF ARTWORK (25)AGREEMENT FOR LOAN AND TEMPORARY DISPLAY OF ARTWORK THIS AGREEMENT FOR LOAN AND TEMPORARY DISPLAY OF ARTWORK made and entered into this 4* day of January. 2019 by and between Adi BenDov iDEA (hereafter called the "ARTIST") whose address is 1344 S. Lotus Dr. Dunedin, FL 34698 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 ARTIST is the sole owner and creator of the items of ARTWORK that are valued and described more fully in EXHIBIT "A" attached hereto and made a part hereof, which items are hereinafter referred to collectively as "ARTWORK"; and WHEREAS, the CITY wishes to display the ARTWORK temporarily along Cleveland Street between East Avenue and Osceola Avenue in Clearwater, Florida; and WHEREAS, the ARTIST wishes to temporarily loan for such exhibition, the ARTWORK to the CITY for placement on certain public property along Cleveland Street for a period of 18 months. 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 1. RECITALS 1.1 The foregoing recitals are incorporated into and made a part of this AGREEMENT FOR LOAN AND TEMPORARY DISPLAY OF ARTWORK, and the parties acknowledge and agree that such recitals are true and correct. 2. TERM 2.1 The ARTIST hereby agrees to loan and temporarily display the ARTWORK described in EXHIBIT "A" to the CITY for outdoor placement along Cleveland Street in Clearwater, FL, 33756 for a period of eighteen (18) months upon the terms herein provided. The period of installation and display shall start on January 1, 2019, unless mutually agreed upon by both parties. The period of display and subsequent de -installation shall end no later than June 31. 2020 unless mutually agreed upon by both parties. 3. ARTIST RESPONSIBILITIES 3.1 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, and the pickup of the ARTWORK from, the placement site along Cleveland Street. The ARTIST will agree to ARTWORK installation and removal dates with the CITY that will be during regular business hours unless specifically agreed to by the CITY. In addition, the ARTIST is responsible for the oversight of the installation and the de -installation of the ARTWORK by the CITY or the CITY'S agents. 2 3.2 The ARTIST will advise the CITY or the CITY'S agents on the ARTWORK and its integration to the concrete base. The ARTWORK and the recommended installation/de-installation process shall comply with, and the ARTIST in performing under this AGREEMENT shall comply with, all city, county, state and federal regulations, laws, and ordinances. 3.3 Once approved by the CITY, the ARTIST will modify the ARTWORK, if necessary, with any required hardware to attach the ARTWORK to the base. 3.4 The ARTIST represents that the ARTWORK is made of durable material and will withstand the usual weather and climate in the area. The ARTIST assumes all responsibility and risk for any deterioration or weathering caused to the ARTWORK. 3.5 The ARTIST will provide a description of all materials utilized in the ARTWORK and the routine care, if any, required during the loan agreement. 3.6 During the installation and de -installation periods as appropriate, the ARTIST, if requested, will be available for presentations, interviews, and ceremonies at the CITY'S request. 3.7 The ARTIST will provide required insurance in the amounts and limits specified in Section 8 INSURANCE. 3 3.8 The ARTIST represents that the ARTWORK does not utilize any protected patent, trademark, or copyright and hereby indemnifies the CITY for any claims related thereto. 4. CITY RESPONSIBILITIES 4.1 The CITY will determine a location for the exhibition of the ARTWORK on Cleveland Street and will provide any information and relevant data, if any, which is needed by the ARTIST in order to perform under this AGREEMENT. 4.2 The CITY will prepare the site and construct a concrete base on which the ARTWORK will be attached in accordance with the specifications detailed in the approved structural drawings provided by the ARTIST. 4.3 Under supervision of the ARTIST, the CITY or the CITY'S agents will install and de -install the artwork from its site on Cleveland Street. 4.4 The CITY will be responsible for compliance with all applicable laws and regulations and will provide required permits for the installation and de- installation process. 4.5 The CITY will provide and install an identification plaque next to the ARTWORK, prepared and designed by the CITY containing a credit to the ARTIST. 4 4.6 The CITY will pay the ARTIST a $3.000.09 Exhibition Fee as consideration for the services and performance hereunder, including but not limited to, the loan, delivery, installation and de -installation supervision, and removal of the ARTWORK. The Exhibition Fee will be paid as follows: $2,000.00 upon delivery and installation of the ARTWORK, as accepted by the CITY, and $1,000.00 upon de -installation and removal of the ARTWORK, as more particularly defined in Section 5. 5. HONORARIUM AMOUNT AND SCHEDULE OF COMPENSATION: 5.1 HONORARIUM AMOUNT: The total honorarium amount awarded to the ARTIST is three thousand dollars ($3,000.0) for all services under this AGREEMENT, including, but not limited to, transportation of ARTWORK to and from the display site, certification of ARTWORK by a licensed structural engineer, ARTIST'S supervision of artwork installation and de -installation, ARTIST'S presence at publicity and public information sessions, and any other performances and services required under this AGREEMENT. a. No charges shall be incurred under this AGREEMENT nor shall any payments become due to the ARTIST until all reports and services, or both, required under this AGREEMENT are received from the ARTIST and approved by the CITY as being in accordance with this AGREEMENT. The final payment of the honorarium is due and payable when the ARTWORK is fully removed from the display site and a final invoice is submitted by the ARTIST. 5 b. In no event shall the CITY be liable for interest or late charges for any late payments. 5.2 SCHEDULE OF COMPENSATION: The CITY agrees to make payments to the ARTIST according to the schedule and conditions set forth below: a. Initial dispersal payment: $2,000.00 ARTIST requirements for payment: Transportation of the ARTWORK, and supervision of the installation of ARTWORK to the display site for the duration of the period of display; ARTIST'S appearance at all pre- arranged publicity and information sessions as requested by the CITY. b. Final dispersal payment: $1.000.00 ARTIST requirements for payment: Supervision of de -installation of, and removal transportation of the ARTWORK from the display site following the period of display, and appearance at all pre -arranged publicity and information sessions as requested by the CITY. 6. DISPLAY OF ARTWORK, BARRIER AND SIGNAGE: 6.1 DISPLAY OF ARTWORK: During the period of the CITY'S display of the ARTWORK pursuant hereto, the CITY shall make the ARTWORK available for viewing by the public without charge at such location along Cleveland Street as the CITY deems appropriate. The CITY shall not charge any admission fee or similar fee as a condition of viewing the ARTWORK. 6 6.2 BARRIER AND SIGNAGE: a. At all times while the ARTWORK is on display the CITY may install such physical barrier as the CITY, in its sole discretion from time to time, deems appropriate in an attempt to prevent unauthorized persons from touching the ARTWORK; provided, however, that the CITY does not warrant or guarantee in any manner that unauthorized touching of the ARTWORK will not occur. Additionally, the CITY may post signage as the CITY, in its sole discretion determines to be appropriate, indicating that touching the ARTWORK is prohibited. b. At times while the ARTWORK is on display pursuant to the terms hereof, the CITY will post an identification plaque next to the ARTWORK, prepared and designed by the CITY, identifying the ARTIST and title of the ARTWORK. 7. RISK OF LOSS 7.1 The ARTIST shall bear all risk of loss or damage to the ARTWORK including, but not limited to, theft, vandalism or any other 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 storage, transportation, delivery, installation, de- installation, and removal of the artwork, regardless of where such loss occurs. 7 8. INSURANCE: 8.1 REQUIRED INSURANCE: The ARTIST shall place and maintain for the periods prior to, during, and after the installation, de -installation, and removal of the ARTWORK, and pay the cost thereof, the following insurance policies: a. General Liability Insurance: The ARTIST shall procure and maintain General Liability Insurance, with limits of not less than $1,000,000 for per occurrence, Combined Single Limit for Bodily Injury and Property Damage, including Contractual Liability, Personal Injury, Products and Completed Operations. The ARTIST shall obtain such insurance prior to transporting or installing the ARTWORK at the display site. 8.2 CERTIFICATES OF INSURANCE: The ARTIST shall, at the CITY'S request, provide certificates of insurance evidencing 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, 9. INDEMNIFICATION AND NOTICE: 9.1 INDEMNIFICATION: 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 8 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 installation, de -installation, or display of the ARTWORK or 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. a. This indemnification shall survive the termination or expiration of this AGREEMENT. 9.2 NOTICE: 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 with the other in the defense or investigation of any such claim arising out of or relating to the performance of this AGREEMENT. 10. WARRANTIES OF TITLE, QUALITY, AND CONDITION: 10.1 : WARRANTY OF TITLE: The ARTIST represents and warrants that: a. The ARTWORK is solely the result of the artistic effort of the ARTIST; 9 b. The ARTWORK is unique and original and does not infringe upon any copyright; c. The ARTWORK is free and clear of any liens from any source whatsoever. 10.2 WARRANTY OF QUALITY AND CONDITION: The ARTIST represents that all work has been and will be performed in accordance with professional "workmanlike" standards and free from defective or inferior materials and workmanship (including any defects consisting of "inherent vice" or qualities that cause or accelerate deterioration of the ARTWORK) for the duration of the display or one (1) calendar year, whichever is longer. a. The ARTIST represents and warrants that the ARTWORK and the materials used are not currently known to be harmful to public health and safety; b. The ARTIST represents and warrants that reasonable maintenance of the ARTWORK will not require procedures substantially in excess of those described in the maintenance recommendations submitted to the CITY by the ARTIST; c. If within the period of the display the CITY observes any breach of warranty described in this Section 10.2 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 ARTIST shall have the right to first refusal to make or supervise such repairs or restorations. 10 Should the ARTIST be unavailable or unwilling to cure the breach consistent with professional conservation standards the CITY may terminate this AGREEMENT. The CITY shall give notice to the ARTIST of any such breach with reasonable promptness. d. If within the period of display the CITY observes a breach of warranty described in this Section 10.2 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 and shall remove the ARTWORK immediately if directed by the CITY, should the CITY in its sole discretion deem said removal to be in the best interest of the health, safety, and welfare of the citizens of Clearwater. 11. MAINTENANCE AND REPAIRS: 11.1 As a condition to final approval of the CITY, the ARTIST shall provide the CITY with a parts list and 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 consultation on maintenance and repair throughout the period of display. 11.2 The ARTIST represents and warrants that general routine cleaning of the ARTWORK and any associated working parts will maintain the ARTWORK within an acceptable standard of public display. 11 11.3 The ARTIST represents that foreseeable exposure to the elements and general wear and tear will cause the ARTWORK to experience only minor repairable damages and will not cause the ARTWORK to fall below an acceptable standard of public display. 11.4 With general routine cleaning, and within the context of foreseeable 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. 11.5 The CITY recognizes and agrees that it will not intentionally alter, modify or change the artwork. 12. TITLE AND COPYRIGHT: 12.1 TITLE AND COPYRIGHT: The CITY recognizes that the title to the ARTWORK shall remain with the ARTIST, its successors or assigns. At no time shall title pass to the CITY as a result of this AGREEMENT. The ARTWORK shall remain the sole property of the ARTIST, its successors or assigns, including, but not limited to, copyrights under the Copyright Act of 1976, 17 U.S.C. §§ 101 et. Seq.; as amended, or any and all rights provided for by the Visual Artists' Rights Act of 1990 (Section 106A of the United States Copyright Act; as amended) unless otherwise granted by the ARTIST to any other party. All future decisions regarding the use and continued 12 ownership of such property will be within the sole and unconditional discretion of the ARTIST, its successors or assigns. 12.2 REPRODUCTION RIGHTS: a. 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, reproduction used in brochures, media publicity, and exhibition catalogues or other similar publications provided that these rights are exercised in a tasteful and professional manner. b. 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], if the ARTIST advises that the ARTWORK is in fact copyrighted. Should the ARTIST not hold a copyright on the ARTWORK, the ARTIST may, at the ARTIST'S own expense, cause to be registered with the United States Register of Copyrights, a copyright in the ARTWORK in the ARTIST'S name. c. If the CITY wishes to make a reproduction of the ARTWORK for commercial purposes, 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. d. The CITY is not responsible for any third party infringement of an ARTIST'S copyright and is not responsible for protecting the intellectual property rights of the ARTIST. 13 e. The ARTIST shall not, during the performance of this AGREEMENT, disseminate publicity or news releases regarding the ARTWORK without prior written approval of the CITY. 13. DEFAULT AND TERMINATION: 13.1 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. 13.2 TERMINATION: a. 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. b. 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 consistent with the SCHEDULE OF COMPENSATION set forth in Section 5.2 of this AGREEMENT. c. 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, 14 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. 14. MISCELLANEOUS: 14.1 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 the AGREEMENT shall be valid unless made in writing and signed by both parties hereto. 14.2 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. 14.3 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 (1) when delivered 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 15 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: Adi Ben D .v 1344 S. Lq Dr. Dunedin, 34698 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. 14.4 CITY'S AUTHORITY: The CITY warrants that it has all required authority to enter into this AGREEMENT FOR LOAN AND TEMPORARY DISPLAY OF ARTWORK and to be bound by the terms hereof. 14.5 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 FOR LOAN AND TEMPORARY DISPLAY OF ARTWORK and to be bound by the terms hereof. 14.6 SURVIVING COVENANTS: The covenants and obligations set forth in this AGREEMENT shall survive the delivery, installation, and removal of the 16 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. 14.7 INTERPRETATION: This AGREEMENT shall be interpreted under and in accordance with the laws of the State of Florida. 14.8 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 14.9 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. 14.10 FURTHER ASSURANCES: The parties shall promptly execute all documents reasonably required and take such other steps in addition to the execution of this AGREEMENT to effectuate the intent and purpose of this AGREEMENT. 17 IN WITNESS THEREOF, the parties hereto have caused this Agreement for Commission of Public Artwork to be executed on the date first above written. By: CITY QF CLEARWATER, FLORIDA f3, William B. Horne II City Manager Approved as to Form: Attest: Owen Kohler Assistant City Attorney Rosemarie Call City Clerk Artist: 18