DRAFT

AGREEMENT TO PURCHASE ARTWORK

BETWEEN THE CITY OF APACHE JUNCTION AND ARTIST’S NAME

THIS AGREEMENT is made as of ______________, 2026 (“Effective Date”), by and between the City of Apache Junction, an Arizona municipal corporation (“City”), and ______________ (“Artist”). The City and Artist may be referred to collectively as “Parties” or individually as a “Party”.

RECITALS

A.  The City has an Art in Public and Private Development Program (“APPD”), funded by the Art in Public Places Fund (“APPF”) as set forth in the Apache Junction City Code, Volume II, Land Development Code, Chapter 1: Zoning Ordinance, Article 1-13: Design Standards, Section 1-13-4 Art in Public and Private Developments, which requires at least one percent of the total construction costs for eligible projects to be spent on artworks in public places. The City is charged with the duty of providing for the nature, selection, and placement of these artworks.

B.  Through the APPD, funds have been allocated for the selection, design, purchase, and placement of artwork (“Work”) to be located within the roundabout at the intersection of State Route 88 and Superstition Boulevard (“Roundabout”), and which application will be in substantial conformance with Artist’s Design Proposal (“Proposal”) submitted to the City no later than ______________, 2026.

C.  A Request for Qualifications (“RFQ”) for the Work at the Roundabout was released on March 30, 2026, wherein the Artist was selected by a panel jury through a competitive selection process on ______________, 2026.

D.  The Parties have set forth below contemplated services, Artist will provide to City, including payment terms for such services and products.

NOW, THEREFORE, in consideration of the Recitals noted above, the mutual covenants and conditions below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1.  Definition of “Work”. As used in this Agreement, unless the context otherwise requires, “Work” means the work of art as ultimately conceived, designed, fabricated, transported, delivered and installed by the Artist, after consultation with the staff of the City and the Arizona Department of Transportation (“ADOT”). The Work includes all physical components of the complete artwork, including but not limited to, associated engineered foundations, bases, mounting brackets or devices, and all other miscellaneous components necessary to complete the fabrication and installation of the artwork.

2.  Terms of Contract. This Agreement will be in effect from _____________ , 2026 to _____________ , 2027.

3.  Artist’s Preliminary Design Proposal. On or before ______________, 2026, the Artist shall submit to the City a Preliminary Design Proposal.  

4.  Artist’s Final Design. On or before _____________ , 2026, the Artist will prepare the final design (the “Final Design”) and itemized budget (the “Budget”) adhering to the originally approved Preliminary Design Proposal.

5.  Expectation of Final Design. Once the Final Design, the plans for the fabrication and installation of the artwork (the “Construction Documents”), and the Budget have been approved by the City with a notice to proceed, the Artist shall not modify the Work without the prior written approval of the City. The Artist may, if the Artist decides is necessary, present to the City, in writing, for review and approval, recommended material changes to the scope, design, color, size, material or texture of the Work. A change shall be deemed material if it alters the form, fit, or function of the Work, or modifies its dimensions by more than five percent (5%).

6.  Purchasing Materials, Fabrication, Installation, and Delivery. Upon final written approval of the Final Design and Budget, the Artist shall commence fabrication, installation, and delivery of the Work, subject to the terms and conditions set forth in Exhibit A. The Artist agrees to fabricate, install, and deliver the Work consistent with the approved Final Design and Budget.

7.  Time of Performance. Time is of the essence in this Agreement and Artist shall dedicate such time and effort as is necessary to fulfill Artist’s obligations to completely finish and install the Work to the satisfaction of City within the timelines set forth in the Project Schedule specified in Exhibit B. Failure to do so will be a material breach of this agreement, however, the Work may be delayed by circumstances described in Section 24 of this Agreement. City shall make its staff and contractors reasonably available to Artist for consultation and assistance in order to achieve the purposes of this Agreement.

8.  Fee Schedule/Manner of Payment. Artist shall be paid according to the fee schedule and manner of payment set forth in Exhibit C.

9.  Requested Registration Information. The Artist shall provide information on the Work requested by City staff and ADOT for its registration files including but not limited to technical and post-installation maintenance information in the format provided in Exhibit D, copyright registration information, updated biographical information, and a descriptive statement regarding the Work.

10.  Documentation of Work.  Artist shall provide to the City twenty (20) high resolution (300 dots per inch (“dpi”) minimum) professional quality digital images from various angles documenting the final installed Work.  Additional images of not less than 3 megabit (200 dpi minimum) are required documenting the processes of the Work’s fabrication and installation in Phases 2, 3 and 4 in Exhibit A. No less than twenty (20) images per Phase is required. Artist shall also provide City and ADOT with a complete schedule for maintenance of the Work in the form reflected in Exhibit D hereto.

11.  Artist’s Representations and Warranties. 

A.  Work Free from Defects. The Artist represents and warrants to the City that the fabrication and installation of the Work will be performed in a workman like manner and that the Work will be free of defects in workmanship or materials, including inherent vice (tendency in physical defects to deteriorate because of the fundamental stability of the components of which they are made), and that the Artist will, at the Artist’s own expense, remedy any defects due to faulty workmanship or materials, which appear within a period of three (3) years from the date the Work is finally accepted by the City. The foregoing warranty is conditional, and shall be voided, by the failure of the City to maintain the Work in accordance with Exhibit D. The foregoing warranty does not include repair of damage caused by external forces such as weather and other Acts of God, vandalism, neglect, civil unrest, war, riots, or acts of third parties outside the Artist’s control. Any and all such repairs completed by the Artist shall be free of defects in material and workmanship for the balance of the initial warranty period or ninety (90) calendar days, whichever is longer. 

B.  Restoration of Work Site. Artist agrees and warrants that, within thirty (30) calendar days after the Work is accepted by the City, Artist shall restore the Work site (including the entire area affected by the fabrication and installation of the Work) to a state and condition that is substantially similar to that which existed when the Work began. Artist further agrees and warrants that, within the period specified herein, Artist shall repair or replace, as is determined necessary by City, and to the reasonable satisfaction of City, all property (real, personal, or otherwise), which has been damaged, injured or otherwise adversely affected by the acts or omissions of Artist, Artist’s agents, contractors, or employees. Artist shall be solely responsible for all expenses and costs which may be necessary to comply with the requirements of this paragraph, and City shall have no responsibility or liability.

C.  Infringement and Copyright Indemnity.  Artist warrants that the Work is original and solely the product of Artist’s own creative effort and does not infringe on the rights, including copyrights, of any person or entity. Artist also agrees to protect, defend, indemnify, and hold city, its mayor and councilmembers, officers, agents and employees harmless from any action, claim, suit, or liability based on a claim that work performed under this Agreement by Artist, or Artist’s agents or Artist’s subcontractors, constitutes an infringement of any patent, copyright, trademark, trade name, or other proprietary right of any party. 

D.  Originality of Work. Artist warrants that, unless otherwise stipulated in writing, the Work is original, that it is an edition of one (1), and that Artist shall not sell, license, perform or reproduce a substantially similar copy of the Work without the prior written consent of City. However, nothing contained herein shall prevent the Artist from creating future works in Artist’s style and manner of working. The Artist shall not reference or reproduce the Work, or any portion thereof, in a way which reflects poorly upon, disparages, or discredits the City or the Work.

E.  Maintenance. The Artist represents and warrants to the City that, except as against force majeure or acts of third parties, the Work will not require maintenance substantially in excess of that described in the maintenance recommendations, to be provided by the Artist to the City in the form of Exhibit D.

F.  Work Free from Hazards. The Artist represents and warrants to the City that the Work will not contain sharp points or edges which the City deems a danger to the public and agrees to cooperate in making or permitting adjustments to the Work, if necessary, to eliminate any hazards which become apparent within one (1) year of the date the Work is finally accepted by the City. If the appearance of such hazards or the City’s determination of a hazard does not relate to a breach of Artist’s warranty pursuant to Subsection 11 (A) above, then the City shall compensate the Artist at rates to be mutually agreed for the work to be performed pursuant to this subsection.

G.  Liens or Encumbrances. The Artist represents and warrants to the City that the Work is solely the result of the artistic efforts of the Artist and that it will be installed free and clear of any liens, claims, or other encumbrances of any type or from any source whatsoever.

H.  Compliance with all Laws. In performing services under this Agreement, Artist shall comply with all applicable federal, state, and local laws and regulations, including without limitation applicable state and federal occupational safety and health acts and regulations, and acquisition of all licenses, permits, or approvals that are legally required for Artist to provide any services under this Agreement. 

I.  Applicable Law and Venue. The terms and conditions of this Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona. Any action at law or in equity brought by a Party for the purpose of enforcing a right or rights provided for in this Agreement, shall be tried in a court of competent jurisdiction in Pinal County, State of Arizona. The parties hereby waive all provisions of law providing for a change of venue in such proceeding to any other county. In the event either Party shall bring suit to enforce any term of this Agreement or to recover any damages for and on account of the breach of any term or condition in this Agreement, it is mutually agreed that the prevailing party in such action shall recover all costs including: all litigation and appeal expenses, collection expenses, reasonable attorney fees, necessary witness fees and court costs to be determined by the court in such action.

J.  Non-waiver of Liability. The City, as a public entity supported by tax monies, in execution of its public trust, cannot agree to waive any lawful or legitimate right to recover monies lawfully due it. Therefore, the Artist agrees that it will not insist upon or demand any statement whereby the City agrees to limit in advance or waive any right the City might have to recover actual lawful damages in any court of law under applicable Arizona law.

K.  Legal Work Requirements. The City is prohibited by A.R.S. § 41-4401 from awarding a contract to any Respondent who fails, or whose subcontractors who fail, to comply with A.R.S. § 23-214 (A) (E-Verify Program). Therefore, any Respondent that enters into a contract with the City as a result of this Call agrees that:

(1)  The Respondent and each subcontractor utilized warrants their compliance with all federal immigration laws and regulations that relate to their employees and their compliance with A.R.S. § 23-214, Subsection A.

(2)  A breach of warranty under Paragraph 1 shall be deemed a material breach of the contract and is subject to penalties up to and including termination of the contract.

(3)  The City retains the legal right to inspect the papers of the Artist or subcontractor employee(s) who work(s) on the contract to ensure that the Respondent or subcontractor is complying with the warranty under Paragraph 1.

L.  Authority. Artist warrants that it has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement.

12.  Performance Made Impossible. In the event it shall become impossible for the Artist to complete the Work because of illness or injury, this Agreement may be terminated at the sole discretion of City, and, in such event, all completed work, materials, and supplies related to the Work shall be delivered to City and shall, along with the Final Design Proposal, become City's sole property. City shall thereafter have no obligation to make any additional or further payments to Artist, and Artist shall have no further or additional claims against City with respect to the Work or such portion thereof as may be completed, or the Final Design Proposal, or with respect to any matter whatsoever pertaining to, affected by, or embodied in this Agreement.

13.  Acceptance of Work.  

A.  Title to the Work shall pass to the City upon written notice to the Artist of the City’s final acceptance of the Work, including its installation. City agrees to accept the completed Work unless:

(1)  The Work was not completed in substantial conformance with the Final Design Proposal or other requirements of Exhibit B; or

(2)  The Work as completed, or any portion thereof, does not conform to a reasonable standard of artistic or technical quality. City shall provide its reasons for this finding to Artist in writing no later than ten (10) calendar days after Artist has tendered the Work to the City for City’s acceptance. 

B.  Upon the City’s refusal to accept the Work for the reasons stated in Section 13(A)(1) or 13(A)(2), City shall have the right to:

(1)  Request that Artist corrects the deficiencies in the Work within forty (40) calendar days; or

(2)  Terminate this Agreement and recover all sums previously paid to Artist. Both remedies shall be independent and cumulative and in addition to any other remedy available to the City at law or equity. Enforcement of one such remedy shall not be exclusive, nor shall it be deemed an election of such remedy to the exclusion of any other or further remedy. However, nothing contained herein shall limit City’s available remedies at law and equity.

C.  No payments to Artist shall be deemed as a waiver of City’s right to refuse to accept the Work.

14.  Transfer of Title to Work. Title to the Work shall remain with Artist until City has accepted the Work as completed and it is installed to the satisfaction of City. When City has so certified and provided a written Letter of Acceptance, title shall be transferred to City. Artist shall bear all risk of loss of the Work until title has been transferred to City, including obtaining any necessary insurance to insure the Work, and City agrees to inspect Work and accept Work within thirty (30) calendar days of Artist notification of completion, unless the provisions of Section 13 (A)(1) or 13 (A)(2) apply.

15.  City Maintenance of Work. Upon transfer of title of the Work to the City, City agrees to reasonably ensure that the Work is properly maintained and protected. City agrees that it will not intentionally destroy damage, alter, modify, or change the Work in any way. City shall have the right to move or remove the Work from display or deaccession (deaccession means to permanently take the art out of the collection), in City’s sole determination. In the event it becomes necessary to change the placement of the Work, City shall confer with Artist concerning placement, although the ultimate placement of the Work is solely within the City’s discretion.

16.  Repair and Restoration of Work. The City may make minor or emergency repairs without the Artist’s approval or consultation. It is the policy of City to consult with the Artist regarding repairs which are undertaken during the Artist’s lifetime when practical. To facilitate consultation, the Artist will notify the City of any change in the Artist’s permanent addresses. If the Artist is unable or unwilling to perform any necessary repairs, the City will cause to have such work performed at the City’s own expense. In the event repair of the Work is required, City may give the Artist the opportunity to perform the repairs for a reasonable fee. In the event Artist refuses to make the repairs for such fee, City may arrange for repairs by another qualified person. When emergency repairs are necessary to prevent the loss of or further damage to the Work, such repairs shall be undertaken or arranged by City without advance notice to Artist, and such repairs shall not constitute an artistic alteration. City shall thereafter notify Artist as soon as is practical.

17.  Work Authorship. Artist shall retain the copyright to the Work and the right to claim authorship of the Work. City shall ensure that Artist’s name is publicly displayed on, at, or near the Work. In the event the Work is substantially damaged or altered, City shall no longer represent the Work to be the Work of Artist if Artist gives written notice to City that Artist denies authorship of the Work on the grounds stated in this paragraph. 

18.  Artist Payment of Contractors and Employees. In the event Artist hires or contracts with employees, subcontractors, or material suppliers, Artist shall pay these employees, subcontractors, or material suppliers out of the payments made to Artist by City for completion of the phase of work for which the employees, subcontractors, or material suppliers provided labor or materials and provide proof of payment to the City prior to completion of the next phase of work. In the case of nonpayment of wages or other amounts due the employees, subcontractors, or material suppliers, City may withhold from Artist out of payments due a sum sufficient to pay such persons the amounts owed by Artist absent evidence satisfactory to the City of a legal basis for such nonpayment.  All subcontractors shall be properly licensed pursuant to the applicable law. Before performing any work, each subcontractor shall provide to the City and Artist evidence that the subcontractor has workers’ compensation insurance coverage.

19.  Indemnification. To the fullest extent permitted by law, Artist shall defend, indemnify and hold harmless City, its elected officials and appointed officers, special districts, agents, and employees from and against any and all liability including but not limited to demands, claims, actions, fees, costs and expenses, including reasonable attorney and expert witness fees, arising from, or alleged to have arisen from, relating to, arising out of, or alleged to have resulted from the acts, errors, mistakes, omissions, work or services of Artist, its agents, employees, or any tier of Artist’s subcontractors in the performance of this Agreement, but only to the extent caused by the negligence, recklessness or intentional wrongful conduct of Artist or its subcontractors in the performance of the Services or any subcontract. Artist’s duty to defend, hold harmless, and indemnify City, its elected officials and appointed officers, special districts, agents, and employees shall arise in connection with any claim, damage, loss or expense that is attributable to bodily injury, sickness, disease, death, or injury to, impairment, or destruction of property including loss of use resulting therefrom, caused by Artist’s acts, errors, mistakes, omissions, work or services in the performance of this Agreement, including any employee of Artist, any tier of Artist’s subcontractor, or any other person for whose acts, errors, mistakes, omissions, work or services Artist may be legally liable, but only to the extent caused by the negligence, recklessness, or intentional wrongful conduct of Artist or any tier of Artist’s subcontractors, or any other person for whose acts, errors, mistakes, omissions, work or services Artist may be legally liable in the performance of the Services or subcontract. The amount and type of insurance coverage requirements set forth in this Agreement will in no way be construed as limiting the scope of the indemnity in this Section 19.  The rights and obligations under this Section 19 shall survive termination of this Agreement.

20.  Insurance. During the entire term of this Agreement, Artist shall maintain the insurance coverage described in this section. Full compensation for all premiums that Artist is required to pay for the insurance coverage described herein shall be included in the compensation paid to Artist under this Agreement. No additional compensation will be provided for Artist’s insurance premiums. Any available insurance proceeds in excess of the specified minimum limits and coverages shall be available to the City. It is understood and agreed by the Artist that their liability to the City shall not in any way be limited to or affected by the amount of insurance coverage required or carried by the Artist in connection with this Agreement.

A.  General Provisions. Artist, at its own expense, shall purchase and maintain during the Term the insurance required by this Agreement with companies duly licensed, possessing a current A.M. Best, Inc. Rating of B+, or approved unlicensed in the State of Arizona with policies and forms satisfactory to City.

All insurance required by this Agreement shall be maintained in full force and effect until the Services are accepted by the City. Failure to do so may, at the sole discretion of City, constitute a material breach of this Agreement.

Artist’s insurance shall be primary insurance as respects the City, and any insurance or self-insurance maintained by City shall not contribute to it.

Any failure to comply with the claim reporting provisions of the insurance policies or any breach of an insurance policy warranty shall not affect coverage afforded under the insurance policies to protect City.

The insurance policies, except Workers’ Compensation, shall contain a waiver of transfer rights of recovery (subrogation) against City, its agents, officers, officials and employees for any claims arising out of Artist’s acts, errors, mistakes, omissions, work or service.

The insurance policies may provide coverage which contains deductibles or self-insured retentions. Such deductible and/or self-insured retentions shall not be applicable with respect to the coverage provided to City under such policies. Artist shall be solely responsible for the deductible and/or self retention and City, at its option, may require Artist to secure payment of such deductibles or self-insured retentions by a surety bond or an irrevocable and unconditional letter of credit.

The insurance policies required by this Agreement, except Workers’ Compensation and Professional Liability, shall name City, its elected officials, agents, officers, and employees as Additional Insured Parties.

Artist shall expressly bind any subcontractors, or any other lower tier subcontractors, used in the performance of any aspect of the Services, to the insurance requirements in this Agreement, making such obligations applicable to the other subcontractor to the same extent as it is applicable to Artist. The purpose of this provision is to require any lower tier subcontractor, regardless of level, to provide insurance and indemnity required by this Agreement.

B.  Commercial General Liability. Artist shall maintain throughout the Term Commercial General Liability insurance with a limit of not less than $1,000,000 for each occurrence with a $2,000,000 Products/Completed Operations Aggregate and a $2,000,000 General Aggregate limit.  The policy shall include coverage for bodily injury, broad form property damage, personal injury, products and completed operations and blanket contractual coverage including, but not limited to, the liability assumed under the indemnification provisions of this Agreement, which coverage will be at least as broad as that on Insurance Service Office, Inc. Policy Form No. CG 00011093, or the equivalent thereof. 

Such policies shall contain a severability of interest provision and shall not contain a sunset provision or commutation clause, nor any provision which would serve to limit third party action over claims.

The Commercial General Liability additional insured endorsement shall be at least as broad as the Insurance Service Office, Inc.’s Additional Insured, Form B, CG 20101185, or the equivalent thereof, and shall include coverage for Artist’s operations and products and completed operations.

If Artist sublets any part of the Services, Artist shall purchase and maintain, at all times during prosecution of the Services an Owner and Artist’s Protective Liability insurance policy for bodily injury and property damage, including death, which may arise in the prosecution of the Services. Coverage shall be on an occurrence basis with a limit of not less than $2,000,000 per occurrence, and the policy shall be issued by the same insurance company that issues Artist’s Commercial General Liability insurance.

C.  Automobile Liability. Artist shall maintain Commercial /Business Automobile Liability insurance with a combined single limit for bodily injury and property damage of not less than $1,000,000 each occurrence with respect to Artist’s owned, hired, and non-owned vehicles assigned to or used in performance of the Services. Coverage will be at least as broad as coverage code 1, “any auto”, (Insurance Service Office, Inc. Policy Form CA 00011293, or the equivalent thereof). Such insurance shall include coverage for loading and off-loading hazards. If hazardous substances, materials or wastes are to be transported, federal mandatory motor carrier safety (“MCS”) 90 endorsement shall be included and $5,000,000 per accident limits for bodily injury and property damage shall apply.

D.  Workers’ Compensation. Artist shall carry Workers’ Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction over Artist’s employees engaged in the performance of the Services; and Employer’s Liability insurance of not less than $100,000 for each accident, $100,000 disease for each employee, and $500,000 disease policy limit.

By execution of this Agreement, Artist certifies as follows:

“I am aware and understand the provisions of A.R.S. § 23-901 et seq. which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of this chapter, and I will comply with such provisions before commencing the performance of the Services of this Agreement.”

If Artist has no employees for whom Workers’ Compensation insurance is required by federal or state statutes, Artist shall submit a declaration or affidavit to City so stating and covenanting to obtain such insurance if and when Artist employs any employees subject to coverage.

E.  Certificates of Insurance. Prior to commencing the Services, Artist shall furnish City with Certificates of Insurance, or formal endorsements as required by the Agreement, issued by Artist’s insurer(s), as evidence that policies providing the required coverages, conditions and limits required by this Agreement are in full force and effect. City shall not be obligated, however, to review same or to advise Artist of any deficiencies in such policies and endorsements, and such receipt shall not relieve Artist from, or be deemed a waiver of, City’s right to insist on strict fulfillment of Artist’s obligations under this Agreement.

The form of the certificates of insurance and endorsements shall be subject to the approval of the Apache Junction City Attorney’s Office, shall comply with the terms of this Agreement. Policies or certificates and completed forms of City’s Additional Insured Endorsement (or a substantially equivalent insurance company form acceptable to the City Attorney) evidencing the coverage required by this Agreement shall be delivered to City Attorney, City of Apache Junction, 300 East Superstition Boulevard, Apache Junction, AZ 85119. The policy or policies shall be in the usual form of public liability insurance, but shall also include the following provision:

“Solely as respects work done by or on behalf of the named insured for the City of Apache Junction, it is agreed that the City of Apache Junction and its elected officials, officers, agents and employees are added as additional insured parties under this policy.”

In the event any insurance policies required by this Agreement are written on a “claims made” basis, coverage shall extend for two (2) years past completion and acceptance of Artist’s work or services and as evidenced by annual Certificates of Insurance.

Artist shall require its insurers to provide City thirty (30) calendar days prior written notice of any nonrenewal, cancellation, or material change in the coverage under such policy reducing coverage to below the amounts required by this Agreement. If a policy does expire during the life of the Agreement, a renewal certificate must be sent to City thirty (30) calendar days prior to the expiration date.

21.  Copyright. Artist expressly reserves every right available to Artist, at common law or under the Federal Copyright Act. Artist authorizes the City to make, and to authorize the making of, photographs and other two-dimensional reproductions of the Work for educational, public relations, arts promotional, and other non-commercial purposes. For the purposes of this Agreement, the following are among those deemed to be reproductions for non-commercial purposes: brochures and pamphlets pertaining to the City; City-purchased advertising that promotes programs and services of the City; reproduction in exhibition catalogues, books, photographs, postcards, posters, and calendars; in art magazines, art books, and art and news sections of newspapers; in general books and magazines not primarily devoted to art but of an educational, historical, or critical nature; slides and film strips not intended for a mass audience; and television from stations operated for educational purposes or on programs for educational purposes from all stations, and depictions on social media or other electronic medium. 

22.  Waiver of VARA Rights. Artist waives any and all rights Artist may have with respect to the Work under the federal Visual Artists Rights Act (“VARA”) of 1990 (17 U.S.C. §§ 106A and 113(d)), and any other local, state, federal, or international laws that convey rights of the same nature or any other type of moral right protecting the integrity of works of art.

23.  Representatives. Any notices or demands from the Parties shall be in writing and served either personally or by first-class mail. Service shall be conclusively deemed made at the time of personal service or the time of deposit in the mail, return receipt requested. Any notice or demand shall be given to the following addressees:

City Representative:                                        Artist: 
Erika Hernandez, Planner                               Artist’s Name
300 E. Superstition Blvd.                                 Artist’s Street Address
Apache Junction, AZ 85119                            Artist’s City, State, and Zip Code
480-474-5491                                                 Artist’s Phone Number
ehernandez@apachejunctionaz.gov              Artist’s Email Address

Artist shall notify the City Representative in writing of any change of mailing address, email address, and phone number. Failure to do so shall constitute a waiver of Artist’s rights under this Agreement during the time of the omission. 

24.  Excuse from Performance.

A.  In the event Artist’s performance of any of its obligations or undertakings under this Agreement are delayed, interrupted, or prevented by an act of God, unforeseen conditions, unusually severe weather, or occurrences that are beyond the control of the Parties to this Agreement, Artist shall be excused from any further performance for whatever period of time after the occurrence necessary to remedy the effects of that occurrence. Artist shall notify City in writing within ten (10) calendar days after any occurrence described in this section that may delay Artist’s performance. City shall amend the Project Schedule when, in its determination and sole discretion, Artist’s performance has been excused, and the delay or interruption has resulted in a material change in the time for performance.

B.  In the event the installation site is not adequately prepared for receipt of the Work as scheduled, or delivery or installation is delayed due to a material failure on the part of the City or its subcontractors, then the City shall promptly act to address the problem(s) identified by Artist. If such an event occurs, timelines for performance by Artist shall be extended as needed in the sole discretion of the City, provided, that none of the delays are caused in whole or in part by Artist. Site preparation by City shall not include site measurements, which shall be the sole responsibility of Artist.

25.  Press Releases. Artist shall not make any public information release in connection with services performed under this Agreement without the prior written permission of the City.

26.  Tax Implications and Consequences. The City makes no representations as to the tax consequences associated with the payment of funds related to this Agreement, and any determination related to this issue is the sole responsibility of the Artist. Artist acknowledges consulting with its own tax advisors regarding this transaction or having had an opportunity to do so prior to signing this Agreement. Artist acknowledges the City cannot provide advice regarding the tax consequences or implications for payment made in exchange for the Work or related services.

27.  Exhibits. All exhibits referenced in this Agreement are attached and are by this reference incorporated as if set forth fully herein.

28.  Entire Agreement. This Agreement and any attachments represent the entire agreement between City and Artist and supersede all prior negotiations, representations, or agreements, either express or implied, written or oral. It is mutually understood and agreed that no alteration or variation of the terms and conditions of this Agreement shall be valid unless made in writing and signed by the Parties hereto. Written and signed amendments shall automatically become part of the supporting documents and shall supersede any inconsistent provision therein; provided, however, that any apparent inconsistency shall be resolved, if possible, by construing the provisions as mutually complementary and supplementary.

29.  Severability. City and Artist each believe that the execution, delivery, and performance of this Agreement are in compliance with all applicable laws. However, in the unlikely event that any provision of this Agreement is declared void or unenforceable (or is construed as requiring City to do any act in violation of any applicable laws, including any constitutional provision, law, regulation, or city code), such provision shall be deemed severed from this Agreement and this Agreement shall otherwise remain in full force and effect; provided that this Agreement shall retroactively be deemed reformed to the extent reasonably possible in such a manner so that the reformed agreement (and any related agreements effective as of the same date) provide essentially the same rights and benefits (economic and otherwise) to the Parties as if such severance and reformation were not required. Unless prohibited by applicable laws, the Parties further shall perform all acts and execute, acknowledge and/or deliver all amendments, instruments, and consents necessary to accomplish and to give effect to the purposes of this Agreement, as reformed.

30.  Waiver of Terms and Conditions. The failure of City or Artist to insist in any one or more instances on performance of any of the terms or conditions of this Agreement or to exercise any right or privilege contained herein shall not be considered as thereafter waiving such terms, conditions, rights or privileges, and they shall remain in full force and effect.

31.  Attorney Fees and Enforcement Thereof. Parties will bear their own costs and attorney fees incurred in connection with this Agreement, and any enforcement thereof.

32.  Independent Contractor Status. City and Artist agree and understand that the relationship between both Parties is that of an independent contractor. As such, Artist is not entitled to receive any benefits to which City employees are entitled by virtue of their employment with City. City shall not be responsible for payment to employees of Artist for salaries, related taxes (including, but not limited to, federal Social Security tax as well as federal and state unemployment taxes) and all other expenses related to their employment or contractual relationship with Artist.

33.  Assignment/Delegation Prohibited. The expertise and experience of Artist is a material consideration for this Agreement. Artist shall not assign/delegate any right or obligation pursuant to this Agreement. Any attempted or purported assignment/delegation shall be void and of no effect and shall be considered a material breach of contract.

34.  Binding Effect. All rights and obligations of Artist pursuant to this Agreement shall be personal to Artist and shall terminate upon either the legal disability or incompetence of Artist or upon the death of Artist, except the rights provided to Artist under copyright laws.

35.  Term; Termination.

A.  This Agreement shall become effective on the Effective Date set forth on the first page of the Agreement and shall continue in effect until the Parties have fully performed their respective obligations under this Agreement, unless sooner terminated as provided herein.

B.  City shall have the right to terminate this Agreement at any time by giving a written notice of termination to Artist. If City gives such notice of termination, Artist shall immediately cease rendering services pursuant to this Agreement and turn over all work up to the point of termination to the City. If City terminates this Agreement:

(1)  Artist shall, no later than five (5) calendar days after such notice of termination, deliver to City copies of all designs prepared, unused materials, and any completed work pursuant to this Agreement.

(2)  City shall pay Artist the reasonable value of services rendered by Artist prior to termination; provided, however, City shall not in any manner be liable for lost profits that might have been made by Artist, had the Agreement not been terminated. In this regard, Artist shall furnish to City such financial information as, in the judgment of the City, is necessary for City to determine the reasonable value of the services rendered by Artist. The foregoing is cumulative and does not affect any right or remedy that City may have in law or equity.

36.  Conflict of Interest Statute. This Agreement is subject to, and may be terminated by City in accordance with, the provisions of A.R.S. § 38-511.

37.  Political Activities. Artist and Artist’s employees are prohibited from engaging in any partisan political activity with respect to candidates for local political office beyond the private expression of opinion, registering as a member of a political party, circulating and signing nomination petitions, soliciting contributions in cash or services to support a candidate, and voting in any special, primary, or general election. Artist shall not engage in any partisan political activity of any kind or solicit any contribution in cash or services to support any candidate for public office. If Artist or Artist’s employee engages in said activities, they shall make it clear that they are doing so in their personal and private capacity. In this section, “local political office” means the Mayor and Council offices for the City of Apache Junction. 

38.  Taxes. Artist shall pay as they become due all license, sales, consumer, transaction privilege, use, and other similar taxes for services provided by Artist which are legally enacted at the time the obligations under this Agreement are performed. 

39.  Permits and Fees. Unless otherwise provided in this Agreement, Artist shall secure and pay for all applicable permits, government fees, licenses, and inspections necessary for the proper execution and completion of the Services which are customarily secured after execution of the Agreement.  Artist shall give all notices and comply with all laws, ordinances, rules, regulations, and lawful orders of any public authority bearing on the performance of the Services.  Artist represents and warrants that any license necessary to perform the Services is current and valid. Artist understands that the activity described in this Agreement constitutes “doing business in the City of Apache Junction” and Artist agrees to obtain a business license pursuant to Chapter 8 of the Apache Junction City Code, Vol. I, and keep such license current during the Term. Artist also acknowledges that the tax provision of the Apache Junction Tax Code, Chapter 8A, may also apply and, if so, shall obtain a transaction privilege license and/or other licenses as may be required by all applicable laws. 

40.  Right of the City to Contract with Others. Nothing in this Agreement shall imply City is obligated to obtain artwork only through Artist.

41.  Prohibition to Contract with Contractors Who Engage in a Boycott of the State of Israel. The Parties acknowledge A.R.S. §§ 35-393 through 35-393.03, as amended, which forbids public entities from contracting with contractors who engage in boycotts of the State of Israel.  Should Artist engage in any such boycott against the State of Israel, this Agreement shall be deemed automatically terminated by operation of law.  Any such boycott is a material breach of this Agreement.

42.  Prohibited Use of Chinese Forced Labor. In accordance with A.R.S. § 35-394, Artist hereby certifies and agrees that Artist does not currently and shall not for the duration of this Agreement use: (1) the forced labor of ethnic Uyghurs in the People’s Republic of China; (2) any services or goods produced by the forced labor of ethnic Uyghurs in the People’s Republic of China; and/or (3) any suppliers, contractors or subcontractors that use the forced labor or any services or goods produced by the forced labor of ethnic Uyghurs in the People’s Republic of China.  If Artist becomes aware during the Term that Artist is not in compliance with this Section 42, then Artist shall notify the City within five (5) business days after becoming aware of such noncompliance.  If Artist does not provide the City with written certification that Artist has remedied such noncompliance within ninety (90) calendar days after notifying the City of such noncompliance, this Agreement shall terminate, except that if the Agreement termination date occurs before the end of such ninety (90) day remedy period, this Agreement shall terminate automatically. 

EXHIBIT A

PURCHASING MATERIALS, FABRICATION, INSTALLATION, AND DELIVERY

1.  Artist Completion of the Work. Artist shall acquire, at Artist’s sole expense, all labor, supplies, materials, equipment, and other items required to design, fabricate, deliver, and install the Work to the satisfaction of City and in substantial conformance with Artist’s Final Design.

2.  Review of Fabrication. City staff shall have access to review the Work in progress, at regular intervals, to allow the City to confirm that the fabrication is consistent with the approved Final Design. The Artist shall make such access available to City staff during reasonable business hours of the City.

3.  Phases to be Completed by Artist. Artist shall not commence performance of any Phase identified in this Exhibit A until Artist receives a written “Notice to Proceed” from the City for each Phase. All work shall be performed in accordance with the Project Schedule specified below.  Artist shall complete the following phases:

A.  Phase 1: Purchasing Material, Supplies, Permits, and report with invoice.

B.  Phase 2: 50% Completion of Work. After receipt of City’s Notice to Proceed, Artist shall fabricate the Work to 50% completion, in accordance with the Final Proposal drawings and Construction Documents approved by the City. City shall have the right to view the Work in progress at a mutually agreeable time and/or require the Artist to send images documenting the progress. This phase will not be complete until City approves 50% completion in writing. The Artist shall submit photo-documentation and report with invoice.

C.  Phase 3: Fabrication of Work to 100% Completion. After receipt of City’s Phase 3 Notice to Proceed, Artist shall fabricate the Work to 100% completion, in accordance with all Final Proposal drawings and Construction Documents approved by the City. City shall have the right to view the Work in progress at a mutually agreeable time and/or require the Artist to send images documenting the progress. This phase will not be complete until City approves 100% completion in writing. The Artist shall submit photo-documentation and report with invoice.

D.  Phase 4: Deliver and Complete Installation of Work. After receiving receipt of City’s Phase 4 Notice to Proceed, Artist will install the Work at the specific location as described in the Final Design and in accordance with the installation methods approved by the City. Artist is responsible for the cost and installation of any lighting and any structural support, footing, or base required for the Work. Artist shall provide City with a written list of the workers, vehicles, and equipment to be involved in installation at least thirty (30) calendar days in advance of installation.  Artist shall perform the installation in such a manner that it shall not constitute a private or public nuisance.  Artist installation shall not cause damage or destruction to facilities, equipment or other property of the City or adjoining property owners, and Artist shall reimburse City for any such damage or destruction. Upon completion of installation, Artist shall restore the installation site, as specified in Section 11 (B) of the Agreement. This phase will not be complete until City approves the installation in writing. Artist must submit a minimum of twenty (20) high resolution images (of not less than 3 megabit (200 dpi minimum)) of the fabrication and installation of the Work, and the completed Work to City. The Artist shall submit photo-documentation and report with invoice.

E.  Phase 5:  Technical and Maintenance report. Once the Work has been fabricated and installed, and all services have been completed by the Artist as required by this Agreement, the Artist shall submit a Technical and Maintenance Report in the format of Exhibit D to the City Representative, accompanied by twenty (20) high resolution images (of not less than 3 megabit (200 dpi minimum)) illustrating several views and details, substantiating the completion of the installed Work. This report is required to secure final approval and acceptance of the Work by the City. Upon receipt by the City of the Technical and Maintenance Report, the Artist shall submit the invoice.

F.  Phase 6: Acceptance of Work. Artist will submit a copy of ADOT’s Final Approval and Inspection Report through their respective permitting process. Title to the Work shall pass to the City upon written notice to the Artist of the City’s final acceptance of the Work, including its installation, at which time the Artist shall submit the final invoice.

G.  Phase 7: Public Presentation of Completed Work. If asked, Artist will deliver one public lecture regarding the Work within one (1) year of installation on a date and under conditions to be mutually determined by the Artist and City Representative. The Artist may, as part of this Agreement, be required by the City with reasonable advance notice, to discuss the Work with the general public and/or press/media representatives in special meetings scheduled for this purpose. 

EXHIBIT B

PROJECT SCHEDULE

Project Schedule. Artist must complete the Phases referenced in Exhibit A within the Project Schedule specified below unless the Parties agree to modify this schedule through a written amendment to this Agreement.

EXHIBIT C

FEE SCHEDULE AND MANNER OF PAYMENT

1.  Artist’s Compensation. The total of all fees paid to Artist for the performance of all services set forth in this contract, including normal revisions (hereafter the “Services”), shall not exceed the total sum of two hundred and fifty thousand dollars ($250,000). In the event Artist incurs costs in excess, Artist shall pay such excess from Artist’s own funds. City shall not be required to pay any part of such excess and Artist shall not have any claim against City on account of any cost overruns.

2.  Payments to Artist. Payments to Artist shall be made within thirty (30) calendar days after City’s receipt of Artist’s invoices. Except for the initial payment upon execution of the Agreement, all payments will be made to Artist after City’s written approval of each Phase.  Artist shall be responsible for the cost of supplying all documentation necessary to verify the billings to the satisfaction of City. All invoices must contain an itemized description of the services performed under that invoice. No payment shall be made if Artist is in default of this Agreement or if any Phase is not completed to the satisfaction of City.  City shall be the sole determiner of when a Phase has been completed to its satisfaction. All invoices shall be emailed to the City Representative identified in Section 23 of the Agreement. Artist agrees that City has no obligations regarding commissions or any agreement with galleries or agents with whom the Artist may have contracted, and City is not responsible for paying Artist’s sales tax on materials.

3.  Internal Revenue Service. The City shall report payments made to Artist in a 1099 form submitted annually to the Internal Revenue Service during the term of the Agreement. The Artist shall be responsible for payment of federal and state income taxes on any net income arising from this Agreement.

4.  Taxes. Artist shall pay, when and as due, any and all taxes incurred as a result of Artist’s compensation hereunder, including estimated taxes, and shall provide City with proof of the payment upon request.

5.  Expenses. All expenses incurred on behalf of the Work in accordance with the Budget shall be paid by the Artist. Expenses such as transportation-related expenses, room and board during the Artist work-related trips to Apache Junction, insurance, consultant fees, telephone, mail, photocopying, and material expenses incurred to prepare the site, and fabricate, transport, and install the Work shall be paid by the Artist.

6.  Fee Schedule. Artist shall be paid for the performance of the Work and related Services according to the following fee schedule:

7.  Additional Services. “Additional Services” are those services related to the scope of services of Artist but not anticipated at the time of execution of this Agreement. Additional Services shall be provided only when an amendment authorizing the Additional Services is approved by City in accordance with City’s amendment procedures. City reserves the right to perform any Additional Services with its own staff or to retain other consultants to perform the Additional Services.

8.  Accounting Records of Artist. During performance of this Agreement and for a period of three (3) years after completing all Services and Additional Services hereunder, Artist shall maintain all accounting and financial records related to this Agreement, including, but not limited to, records of Artist costs for all Services and Additional Services performed under this Agreement, in accordance with generally accepted accounting practices, and shall keep and make the records available for inspection and audit by representatives of the City upon reasonable written notice.

EXHIBIT D

POST INSTALLATION MAINTENANCE REQUIREMENTS

 PART 1: GENERAL AND CONTACT INFORMATION.

1.  Artist

2.  Collaborators

3.  Title of Artwork

4.  Location of Artwork

5.  Type of Artwork

6.  Date of Competition

7.  General Description

8.  Copy of the Construction Documents

9.  Fabricator(s)

PART II. INSTALLATION. In-depth information for overall project and for each individual element.

1.  Where work was completed (i.e., name of studio, foundry, etc.).

2.  Dimensions of Artwork (H x W x D).

a.  Both inches and centimeters. Record height first, then width, then depth if needed or diameter.

b.  If