LTHIS CONTRACT, made this ________day of _________ __, 2018 by and between the City of Lakewood, (hereinafter “the City”) and ___________(hereinafter “the Artist”), whose address is ______________________________. WHEREAS, the City has budgeted funds through the Public Art for the development of a sculpture at ___________in the amount of _______ (hereinafter the “Project”). WHEREAS, the Artist was selected through jury procedures set forth in the Public Art Master Plan for Lakewood and reviewed and adopted by the Selection Committee and the City to design, execute, fabricate and install a work of art for the Project (hereinafter “the Work”) at the location of ___________________hereinafter (hereinafter “the Site”); and WHEREAS, both parties wish to promote and maintain the integrity and clarity of the Artist’s ideas and statements as represented by the Work; and WHEREAS, the Artist has visited the Site, familiarized themselves with the local conditions under which they are to work and in which the Work shall remain; and WHEREAS, the Artist will perform, produce and complete the Work in a professional manner; NOW, THEREFORE, the City and the Artist, for the consideration and under the conditions hereinafter set forth, agree as follows: ARTICLE 1. SCOPE OF SERVICES 1.1 General: a. The Artist will design, execute, fabricate, install and document the following Work: Title: ______ ______ Dimensions:__________________________________________________________________________. Medium:____________________________________________________________________________. The permanent location for the Work shall be: _______________________ b. The Artist shall perform all services and furnish all supplies, materials and equipment as necessary for the design, execution, fabrication, transportation and installation of the Work. c. The Artist shall be responsible for all permits and fees associated with the fabrication and installation of the Work. d. The Artist will coordinate with the City or other parties affected by this project as designated by the Client for site preparation and installation of the Work. e. The Artist shall determine the artistic expression, scope, design, color, size, material and texture of the Work, per projects specifications listed in the call for entry? Subject to review and acceptance by the City as set forth in this Agreement. 1.2 Execution of the a. The Artist will begin design and fabrication of the Work upon written notification by the City to proceed with the Work. b. The Artist shall complete the fabrication and installation of the Work in substantial conformity with the design as recommended by the Project Selection Committee and approved by the City. c. Prior to implementation of any changes in the Artwork, the Artist shall present to the City in writing for further review and approval a thorough description of such proposed changes. A significant change is any change affecting the scope, intent, design, color, size, material or location of the work not permitted by, or not in substantial conformity with, the approved design. Significant changes shall also include those affecting the installation, scheduling, site preparation or maintenance for the Work or the concept of the Work as represented in the approved design. Following receipt of the required description of proposed change(s), the City shall, in its discretion, determine which changes shall be considered “significant,” and retains the right to approve or disapprove any significant changes suggested by the Artist. The Artist may implement any significant change only with prior written agreement from the City. d. The City shall have the right to review the progress of the Work at reasonable times, and, with advance notice, during the fabrication thereof. e. In performance of the Work described herein, the Artist shall comply with all applicable State and local laws, rules and regulations. f. The Artist shall complete the work and the installation thereof within six (6) months of written notification to proceed. Upon notification of completion of the Work by the Artist according to Section 1.3 (Delivery and Installation) below, the City shall determine the actual date of installation. g. The Artist shall provide to the City a written plan of installation of the Work on site. This written plan shall be provided sixty (60) days prior to the date of initial installation referenced in section 1.2 (e). The written plan shall include the following information: Specifications for installation; and specifications for site preparation, including materials needed for site preparation or any physical alteration of the site as contemplated by the Artist. The Artist understands and agrees that site preparation and installation are subject to prior approval from the City. Assuming timely completion of Site preparations by the City, the Work and the installation of the Work on the Site shall be completed by the 31st day following the scheduled installation date, except as otherwise authorized in Section 4.3 (Time Extensions) below. In the event that the Work and the installation thereof have not been completed by the 60th day following the scheduled installation date, the Artist shall incur a penalty of five percent (5%) of the balance still remaining due the Artist upon completion and installation under this contract. For each monthly period that passes thereafter, without completion and installation of the Work, the Artist shall incur an additional penalty as follows: (i) for the next monthly period, ten percent (10%) of the remaining balance due; (ii) for the next monthly period, fifteen percent (15%) of the remaining balance due; (iii) for the next monthly period, twenty percent (20%) of the remaining balance due; (iv) for the next monthly period, twenty-five percent (25%) of the remaining balance due; and (v) for each monthly period thereafter, twenty-five percent (25%) of the remaining balance due. The Artist may request an extension of time from the City up to thirty (30) days before the originally agreed upon installation date. If an extension is granted, a new installation date shall be agreed upon in writing and the above penalties shall apply if the new completion and installation dates are not met. 1.3 Delivery and Installation a. The Artist shall notify the City in writing when fabrication of the Work is completed, and the Artist is ready to deliver the Work and install it at the Site. b. The Artist shall deliver and install the completed Work at the Site. c. The City or shall be responsible to prepare the site for timely installation of the Work, including landscaping and public access, unless through prior written arrangement the Artist agrees to assume responsibility for one or more of the costs required for site preparation. d. The City shall notify the Artist of construction delays resulting in delays in site preparation prior to the scheduled delivery date. e. Following installation of the Work at the Site, the Artist shall be responsible for restoration of the Site to the condition existing prior to installation or as mutually agreed upon by the City, and the Artist. 1.4 Post-Installation a. Within forty-five (45) days after installation of the Work, the Artist shall furnish the City with the following photographs of the Work as installed: (i) Two sets of high resolution digital color photographs of the completed Work, one taken from each of three different viewpoints, and labeled as follows: the Artist’s names, last name first, the title of the Work and the dimensions (height x width x depth) and date of completion and the medium; and (ii) two sets of 8” x 10” glossy black and white prints of the Work and negatives labeled with the Artist’s name and the title of the Work; and b. The Artist shall also furnish the City with a full written narrative description of the Work. c. The Artist shall provide to the City, detailed written instructions for appropriate maintenance and preservation of the Work including materials specifications, sources, and appropriate cleaning agents and processes and schedules. d. The Artist shall provide and install an identification plaque for the Work. The written contents of the plaque shall include the following information: ______________________________________________________________________ (Title of Work) (Year) ______________________________________________________________________ (Artist) (Artist’s City) (State of Residence) Commissioned by the City of Lakewood. The plaque shall be of such medium and design as to be appropriate to the Work itself and the permanent location of the Work. – do we need to agree upon the size? 1.5 Final Acceptance a. The Artist shall advise the City in writing when all services required including those described in Section 1.4 (Post Installation) have been completed. b. The City, or an authorized representative, shall then notify the Artist in writing within thirty (30) days of its final acceptance of the Work – is there a template we can borrow for this? c. Final acceptance shall be determined solely by the City and shall constitute the City’s acknowledgement that the Work has been completed, delivered, installed and accepted for all purposes according to the terms of the Agreement. d. All risk of loss or damage to the Work shall remain with the Artist until final acceptance by the City. 1.6 Ownership and Reproduction Rights a. Title to and ownership of the Work shall pass to the City upon final acceptance. In addition, the City may retain all plans, drawings, slides, photographs, submittals, studies, designs, maquettes and models, and other documents submitted to the City by the Artist related to the Work. These items, when submitted, become and are the property of the City, and the Artist expressly licenses the City to, without restriction and at their its sole option and without further approval or compensation to the Artist, make use of such documents for educational, public relations, promotional and other non-commercial purposes without further approval of the Artist. The City, without amendment to this Agreement, shall have the right to negotiate separate license arrangements with the Artist for use of such documents for commercial purposes. The Artist shall not be liable for any damage which may result from any use of said documents by the City for purposes other than these described in this Agreement. b. The Work. The Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. §§101 et seq., except for the Artist’s rights under 17 U.S.C. §106A(a)(2), 17 U.S.C. §106A(a)(3) and 17 U.S.C. §113(d), which are specifically waived by this Agreement, or otherwise granted to the Client under this Agreement. All other rights in and to the work, including but not limited to all rights in the nature of “Droit Morale”. in regard to any continuing interest the Artist may have in the maintenance or modification of the Work, are expressly waived by the Artist and, insofar as such rights are transferable, are assigned to the City. c. In view of the intention that the Work in its final dimension shall be unique, the Artist shall not make any additional exact duplicate, two or three-dimensional reproductions of the final Work, nor shall the Artist grant permission to others to do so except with the written permission of the City. This restriction shall not apply to the Artist’s use of photographic reproductions of the Work in portfolio or in critical and scholarly writings. The Artist grants to the City and its respective assigns an irrevocable license to make two-dimensional reproductions of the Work for non-commercial purposes, including but not limited to reproductions used in advertising brochures, media publicity, and catalogues or other similar publications. d. Notice. All reproductions by the City shall contain a credit to the Artist and a copyright notice. e. Credit to Public Art Program at Lakewood. The Artist shall use its their best efforts to give a credit reading substantially, “an original work commissioned through the Public Art Program at Lakewood”, in any public showing under the Artist’s control of reproduction of the Work. f. Registration. The Artist shall, at the team’s expense (Explain team?), cause to be registered, with the United States Register of Copyrights, a copyright of the Work in the Artist’s name. 1.7 Waiver of Artist’s Rights a. Waiver of Rights under 17 U.S.C. §106A(a). The Artist understands and agrees that, as to its their rights in the Work, the provisions of this Article shall control over the provisions of 17 U.S.C. §106A(a)(2) and 17 U.S.C. §106A(a)(3), and shall constitute a waiver by the Artist of any rights in the work set out in or otherwise granted by the provisions of 17 U.S.C. §106A(a)(2) and 17 U.S.C. §106A(a)(3). b. Waiver of Rights under 17 U.S.C. §113(d). The Artist understands and agrees that, as to their rights in the Work, the provisions of this Article shall control over the provisions of 17 U.S.C. §113(d), and shall constitute a waiver by the Artist of any rights in the work set out in or otherwise granted by this provision. The Artist acknowledges and represents that the Artist has been informed and is aware of the method and location of installation of the work at the Site and, to the extent that the Work is incorporated into the Site in such a way that removing the work from the Site will cause the destruction, mutilation, or other modification of the work, the Artist agrees that execution of the Agreement satisfies the requirements for waiver of the requirements of 17 U.S.C. §106A(a)(2) and 17 U.S.C. §106A(a)(3). ARTICLE 2. MAINTENANCE, REPAIR AND RESTORATION 2.1 Maintenance a. The City shall have the right to determine, in its sole discretion when and if maintenance, repairs and restorations to the Work will be made. b. Any repairs and restorations shall be made in accordance with the Artist’s recommendations and recognized principles of conservation. 2.2 Repairs and Restoration a. The City will, if practicable, consult with the Artist as to recommendations with regard to all repairs and restoration made during the Artist’s lifetime. To the extent practicable and in accordance with recognized principles of professional conservation, the Artist, or his/her representative shall be given the opportunity to accomplish such repairs and restoration and shall, if so agreed by the parties, be paid a reasonable fee for such services. b. At any point after delivery and installation of the Work, the Artist may inspect the Work and shall notify the City in writing as to the necessity of any repairs. The City shall make the final determination of whether repairs are needed. 2.3 Alteration of Work a. The City agrees that it will not consent to intentional alteration, modification, change, destruction of or damage to the Work without consulting the Artist. This stipulation includes outright removal or change in location resulting from public or private opinion regarding the artwork “Alteration” of the Work includes, but is not limited to, a change in the interrelationship or relative locations of parts of the Work. b. In the event of any alteration or damage, whether intentional, accidental, within or without the control of the City or otherwise, the Artist shall have the right to disclaim authorship of the Work; and upon written request of the Artist to the City shall remove the identification plaque at its own expense. The Artist may take such other action as he/she may choose in order to disavow the Work. 2.4 Alteration of the Site a. The City shall notify the Artist of any proposed significant alteration of the Site that would affect the intended character and appearance of the Work. The City may consult with the Artist in the planning and execution of any such alteration. 2.5 Permanent Record The City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 2.6 Artist’s Address The Artist shall notify the City of changes in his/her address. The failure to do so, if such failure prevents the City from locating the Artist, shall be deemed a waiver by the Artist of the right subsequently to enforce those provisions of Article 2 that require the express approval of the Artist. The City shall make every reasonable effort to locate the Artist when matters arise relating to the Artist’s rights. 2.7 Removal, Sale, Donation or Destruction. Nothing in this Agreement shall preclude any right of the City, (1) to remove the Work from public display, (2) to move or relocate the Work to another location selected solely by the City for public display, (3) to donate the Work, (4) to sell or transfer the Work, (5) to correct any unsafe or hazardous condition of the Work, or (6) to destroy the Work. Any donee, transferee or buyer of the Work shall assume all of the City’s duties toward the Artist stated herein, and will take the Work subject to all of the Artist’s rights as stated herein, and the donee, transferee or buyer shall be given a copy of this executed Agreement at the time of donation or sale. If the City shall at any time decide to destroy the Work, it shall by notice to the Artist offer the Artist no less than ninety (90) days following receipt of notice to take possession of the Work at no cost to the Artist, except for an obligation of the Artist to indemnify and reimburse the City for the amount by which the cost to the City of such recovery exceed the costs to the City of the proposed destruction as determined solely by the City. In such event, title to the Work shall pass to the Artist at the time that the Artist takes possession of the Work. 2.8 Surviving Covenants The covenants and obligations set forth in this Article 6 shall be binding upon the parties, their heirs, legatees, executors, administrators, assigns, transferees and all their successors in interest, and the City’s covenants do attach and run with the Work and shall be binding to and until twenty years after the death of each member of the Artist. The City shall give any subsequent owner of the Work notice in writing of the covenants herein and shall cause each such owner to be bound thereby. 2.9 Additional Rights and Remedies Nothing contained in this Article 2 shall be construed as a limitation on such other rights and remedies available to the Artist under the law which may now or in the future be applicable. ARTICLE 3. COMPENSATION AND PAYMENT SCHEDULE 3.1 Fixed Fee The City shall pay the Artist a fixed fee of ________which shall constitute full compensation for all services and materials to be performed and furnished by the Artist under this Agreement, including any fees under Section 1.1.c. The fee shall be paid in the following installments, expressed as percentages of such fixed fee, each installment to represent full and final, nonrefundable payment for all services and materials provided prior to the due date thereof: a. Ten (10) percent ______upon approval by the City of the Artist’s final proposal and signing of this Agreement by all parties. b. Forty (40) percent _______upon completion of fifty percent (50%) of the Work. c. Forty (40) percent _______upon completion of seventy-five percent (75%) and City approval of plans for installation. d. Ten (10) percent _______after final acceptance of the installed Work and receipt of the photo documentation, final Work description and maintenance instructions by the City, as described in Section 1.4 (Post Installation). In order to receive all except the initial payment which will be made automatically after all parties have signed this contract, the Artist shall submit a written billing or invoice to the City when each of the last two stages outlined above has been reached. The invoice shall be signed by the Artist, contain photographs documenting that the required work has been completed and include a signed payment request form. The City shall have sole responsibility for determining when the Work has reached a given state of completion. The parties agree that no interest or other costs shall accrue on the fixed fee at any time during the operation of this contract. ARTICLE 4. TIME OF PERFORMANCE 4.1 Construction Delays If, when the Artist completes fabrication of the Work and notifies the City that the Work is ready for installation, the Artist is delayed from installing the Work more than (60) days from the date specified in Section 1.2 of this Agreement, and the City finds that this delay was caused as a result of the City’s failure to complete construction or preparation of the Site to permit installation of the Work herein, the City shall reimburse the Artist for reasonable transportation and storage costs incurred for the period between the date provided in Section 1.2 (Execution of the Work) for commencement of installation and the date upon which the Site is sufficiently complete reasonable to permit installation of the Work. However, this clause shall not go into effect if the City has issued an extension of time as contemplated in Section 1.3 (d). 4.2 Early Completion of Artist Services The Artist shall bear any transportation and storage costs resulting from the completion of their services hereunder prior to the time provided in Section 1.2 for installation. 4.3 Time Extensions The City shall grant a reasonable extension of time to the Artist in the event there is a delay on the part of the City in performing its obligations under this Agreement, or if conditions beyond the Artist’s control or Acts of God render timely performance of the Artist’s services impossible. Failure to fulfill contractual obligations due to conditions beyond the reasonable control of either party will not be considered a breach of contract, provided that obligations shall be suspended only for the duration of such conditions. ARTICLE 5. WARRANTIES 5.1 Warranties of Title The Artist represents and warrants that: a. the Work is solely the result of the artistic and creative efforts of the Artist; b. except as otherwise disclosed in writing to the City, the Work is unique and original and does not infringe upon on any copyright; c. the Work has not been accepted for exhibition, sale or lease elsewhere; and d. the Work is free and clear of any liens from any source whatever. 5.2 Warranties of Quality and Condition The Artist represents and warrants that: a. the Work, as fabricated and installed, will be free of defects in material and workmanship, including any defects of “inherent vice” or qualities which cause or accelerate deterioration of the Work; and b. reasonable maintenance of the Work will not require procedures substantially in excess of those described in the maintenance recommendations to be submitted by the Artist to the City according to the Section 1.4 (Post-Installation). The warranties described in this Section 5.2 shall survive for a period of three (3) years after the final acceptance of the Work. The City shall give notice to the Artist of any observed breach with reasonable promptness. The Artist shall, at the request of the City, and at no cost to the City, cure reasonable and promptly the breach of any such warranty, which is curable by the Artist and which cure is consistent with professional conservation standards (including, for example, cure by means of repair or refabrication of the Work). ARTICLE 6. ARTIST AS INDEPENDENT CONTRACTOR The Artist agrees to perform all work under this Agreement as an independent contractor and not as an agent or an employee of the City. The Artist as an independent contractor shall furnish all supervision, labor, materials, equipment, supplies other incidentals, as well as transportation, shipping and installation of the Work. The Artist shall not be supervised by any employee or official of the Client, nor shall the Artist exercise supervision over any employee or official of the City. ARTICLE 7. INSURANCE The Artist, as independent contractor, is responsible for complying with city, state and federal requirements pertaining to Workmen’s Compensation insurance and employee liability insurance. The Artist is required to carry general liability insurance coverage of at least $1,000,000.00. This policy shall name The City of Lakewood, as insured. The Artist may, at their expense, insure the Work during fabrication and installation; the City shall have no responsibility to insure the Work at any time. ARTICLE 8. ASSIGNMENT OF WORK The work and services required of the Artist are personal and shall not be assigned, sublet or transferred. This shall not prohibit the Artist from employing qualified personnel who shall work under their supervision. ARTICLE 9. TERMINATION 9.1 Termination The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted thirty (30) days before termination, provided that attempts to reconcile the reason for termination have been undertaken but failed. The notice shall specify whether the termination is for convenience or cause. a. 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 for cause by giving written notice to the defaulting party its intent to terminate specifying the grounds for termination. The defaulting party shall have thirty (30) days after receipt of the notice to cure the default. If it is not cured then this Agreement shall terminate. In the event of default by the City, the City shall promptly compensate the Artist for all services performed by the Artist prior to termination. In the event of default by the Artist, the Artist shall remit to the City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to such default. b. If such termination is for the convenience of the City and occurs before notice to proceed has been given to the Artist, the Artist shall retain the fee set forth in Section 3.1.a in full payment of all Work and services provided by the Artist. If such termination is for the convenience of the City and occurs after notice to proceed has been given to the Artist, the Artist shall, if the fee set forth in Section 3.1 has not been fully paid, have the right to an equitable adjustment in the fee on the basis of the Work performed to the date of such written notice (without allowance for anticipated profit or unperformed services), in which event the City shall have the right at its discretion to possession and transfer of title to the sketches, designs and models already prepared and submitted or prepared for submission to the City by the Artist under this Agreement prior to the date of termination, provided that no right to fabricate or execute the Work shall pass to the City. c. If such termination is for the convenience of the Artist, the Artist shall remit to the City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to termination. 9.2 Event of Artist’s Default or Incapacity a. In the event of default by the Artist, all finished and unfinished drawings, sketches, photographs, and other work products prepared and submitted or prepared for submission by the Artist under this Agreement shall at the City's sole option become its property, including the right to fabricate or execute the Work. Notwithstanding the previous sentence, the Artist shall not be relieved of liability to the City for damages sustained by the City by virtue of any breach of this Agreement by the Artist, and the City may reasonably withhold payments to the Artist until such time as the exact amount of such damages due the City from the Artist is determined, or exercise all of its other rights hereunder. b. In the event of incapacity or death of either member of the Artist, such event will not be deemed a breach of this Agreement or a default on the part of the Artist. The Artist has the right to appoint a successor artist to complete the Work in the event of incapacity or death. The successor artist shall, however, be subject to approval of the City at the time of the signing of the contract and shall be bound to complete the Work under the same terms, including compensation set forth in Article 3; however, the successor artist shall be automatically given an extension of sixty (60) days added to the timeline. Artist shall be paid only for that portion of work or services satisfactorily completed at the time of incapacity or death with remaining payments to be made to the successor artist. The Work shall pass to the City and all copyright described under this Agreement shall remain with the original Artist. The Artist shall provide a copy of this Agreement to the successor artist and the successor artist shall provide a written acknowledgement to the City of the successor artist's agreement to abide by the terms of this Agreement. c. In the event of incapacity or death of the Artist, where no successor artist has been appointed or where an appointed successor artist does not complete the Work, all finished and unfinished drawings, sketches, photographs, and other work products prepared and submitted or prepared for submission by the Artist under this Agreement shall at the City's sole option become its property. If the Work was at mid-point of fabrication or beyond at time of death or incapacity, and no successor is appointed, the City retains the rights to select a successor artist to finish the Work at the City's expense. If the artwork was not at mid-point of fabrication or beyond at time of death or incapacity, and no successor is appointed, the City retains possessory rights to the Work as then in existence and to exhibit the Work with the designation that it is "unfinished." Artist shall be paid only for that portion of work or services satisfactorily completed at the time of incapacity or death. In the event of incapacity or death, where no successor artist has been appointed, all copyright described under this Agreement shall remain with the original Artist. ARTICLE 10. MEDIATION If, prior to final acceptance of the Work, its installation and subsequent acceptance, there arises a major disagreement between the Artist and the City, both parties will make every effort to affect a mutually satisfactory resolution of the disagreement. Before terminating this contract or pursuing any other legal remedy in connection with this contract, either party must notify the other party in writing of his/her intent to terminate or pursue such legal remedy and take whatever steps may be reasonably necessary to mediate the underlying dispute. ARTICLE 11. MODIFICATION No alteration, change or modification of the terms of this Agreement shall be valid unless made in writing and signed by both parties hereto. ARTICLE 12. CONFLICT WITH LAW Any provision of this contract which is hereafter found by a court of law or otherwise to be in conflict with the laws, rules, and/or regulations of the United States or the State of Colorado shall be considered null and void. Any provision rendered null and void by the operation of this provision will not invalidate the remainder of this contract to the extent the contract is capable of execution. Venue for any action or proceeding hereunder shall be in the Jefferson County District Court. ARTICLE 13. EFFECTIVE DATE The effective date of this contract shall be the date of approval by ____________ Have full signature block for the City. CITY OF LAKEWOOD By: ____________________________________ Title: ___________________________________ Date: ___________________________________ ARTIST: Signature: ______________________________ Name: _________________________________ (Please Print) Social Security or FEIN #:____________________ Date: __________________________________egal Agreement