Article 1: Scope of Services 1.1. Final Design/Budget/Construction Documents The Artist will prepare, in conformity with, and incorporating the elements of the Approved Design, working drawings, specifications and final budget setting forth in detail and prescribing the work to be done and the materials, workmanship, finishes and equipment required for the engineering, architectural, structural, mechanical, and the site work (the “Working Drawings”). The Working Drawings, which are to be produced by Artist for approval by the Client (in consultation with project partners) will detail the construction of the Artwork and its integration with the Sites for bidding, permitting and fabrication-related purposes. The Working Drawings will indicate any issues involved in the construction, integration and maintenance of the Artwork, as well as any third party subcontractors needed to work on the project. The Working Drawings will also include a final Artist rendering of the Artwork for Client’s use in public information materials. 1.2. Fabrication Stage 1.2.1. The Artist will fabricate the Artwork in substantial conformity with the Approved Design and Working Drawings, as same may be revised by the Client (the “Final Drawings”). The Artist may not deviate from the Approved Design and the Final Drawings without written approval of the Client, to the extent required. 1.2.2. Prior to beginning fabrication, the Artist will obtain as-built measurements of the installation sites. 1.2.3. The Artist will take reasonable measures to protect or preserve the integrity of the Artwork such as the application of protective or anti-graffiti coatings, if applicable, unless the Client disapproves. 1.2.4. The Client will have the right to review the Artwork at reasonable times during the fabrication thereof with five (5) days’ notice. At the Client’s request, Artist will provide clear photographic documentation of the progress of fabrication of the Artwork. 1.2.5. If the Client, upon review of the Artwork, determines that the Artwork does not conform to the Final Drawings, the Client reserves the right to notify the Artist in writing of the deficiencies and that the Client intends to withhold the next budget installment. 1.2.6. The Artist will promptly cure the Client’s objections and will notify the Client in writing of completion of the cure. The Client will promptly review the Artwork, and upon approval will release the next budget installment for payment in due course. If the Artist disputes the Client’s determination that the Artwork does not conform, the Artist will promptly submit reasons in writing to the Client within 10 days of the Client’s prior notification to the contrary. The Client will make reasonable efforts to resolve the dispute with the Artist in good faith; however, final determination as to whether the Artist has complied with the terms of this Agreement will remain with the Client. 1.2.7. The Artist will notify the Client in writing when fabrication of the Artwork has been completed, and that the Artwork is ready for delivery to the Site. Artist will also provide the Client with clear photographic documentation of the completed Artwork. 1.2.8. At the Client’s option, the Client will inspect the Artwork within 20 days after receiving notification pursuant to paragraph 1.2.7, prior to delivery, to determine that the Artwork conforms to the Final Drawings and to give final approval of the Artwork. 1.2.9. The Client will not unreasonably withhold final approval of the fabricated Artwork. In the event that the Client does withhold final approval, the Client will submit the reasons for such disapproval in writing within 10 days of examining the fabricated Artwork. The Artist will then have 30 days from the date of the Client’s notice of the disapproval to make the necessary adjustments to the fabricated Artwork in accordance with such writing. The Artist will not be penalized for any delay in the delivery and installation of the Artwork to the Site unless the Artist has willfully and substantially deviated from the Design without the prior approval of the Client. The Artist will then be held responsible for any expenses incurred in correcting such deviation. 1.2.10. The Client will promptly notify the Artist of any delays, if such delays are caused by the Client, impacting delivery of the Artwork. Any additional storage fees incurred as a result of such delays are the responsibility of the Client. 1.2.11. The Artist will collaborate with project partners’ architects during Final Design and Fabrication Stage to ensure Sites’ hardscape and streetscape complement the Artwork wherever possible; collaboration will include, but not be limited to, consultation on hardscape and streetscape design and materials. At the Client’s option, the Artist will contract separately with the project partners to execute additional designs, drawings or Artworks for the Sites’ hardscape or streetscape. 1.3. Changes to Design 1.3.1. Prior to the execution of any change to the Approved Design, Artist will present proposed changes in writing to the Client for further review and approval. The Artist must provide a detailed description of any significant changes in the artistic expression, design, dimensions and materials of the Artwork that is not permitted by nor in substantial conformity with the already approved design. Such notice will also include a detailed description of any additional costs that may be incurred or changes in the budget. A significant change is any change which materially affects installation, scheduling, site preparation or maintenance of the Artwork or the concept of the Artwork as represented in the Design. 1.3.2. If the Client approves the changes, the Client will promptly notify the Artist in writing. 1.3.3. If the Client disapproves of the changes, the Client will promptly notify the Artist in writing and the Artist will continue to fabricate the Artwork in substantial conformity with the Approved Design. 1.3.4. The Artist’s fee will be equitably adjusted for any increase in the Artist’s cost of, or time required for, performance of any services under this Agreement as a result of revisions made to the Approved Design under Section 1.3.1. Any claim of the Artist for adjustment under this paragraph must be asserted in writing within 20 days after the date of the revision by the Artist. 1.4. Installation 1.4.1. Upon the Client’s final approval of the fabricated Artwork, and on a date agreed upon with the Client, the Artist will deliver the completed Artwork to the Site. Transportation fees will be paid by the Artist. 1.4.2. The Artist will be responsible for the installation of the work. The Client (in consultation with the project partners) and the Artist will coordinate closely to determine the best method for installation. 1.4.3. The Artist will be present for the installation of the Artwork. 1.4.4. Upon completion of the installation, the Artwork will be deemed to be in the custody of the Client. 1.4.5. Upon installation of the Artwork, the Artist will provide the Client with written instructions for the appropriate maintenance and preservation of the Artwork along with product data sheets for any material or finish used. The Artwork must be durable, taking into consideration that the Sites are unsecured public spaces that may be exposed to elements such as weather, temperature variation, and considerable movement of people. Artist must ensure that all maintenance requirements will be reasonable in terms of time and expense. The Client is responsible for the proper care and maintenance of the Artwork after written acceptance of the installation. 1.5. Approval and Acceptance 1.5.1. The Artist will notify the Client in writing when all services as required of both Parties by this Agreement prior to this paragraph have been completed. 1.5.2. The Client will promptly notify the Artist of its final acceptance of the Artwork within 10 days after the Artist submitted written notice pursuant to paragraph 1.5.1 above. The effective date of final acceptance will be the date the Client submits written notice to the Artist of its final acceptance of the Artwork. The final acceptance will be understood to mean that the Client acknowledges completion of the Artwork in substantial conformity with the Approved Design, and that the Client confirms that all services as required of both Parties by this Agreement have been satisfactorily completed. Title to the Artwork passes upon final acceptance and final payment. 1.5.3. If the Client disputes that all the services have been performed, the Client will notify the Artist in writing of those services the Artist has failed to perform within 10 days after the Artist submitted written notice pursuant to paragraph 1.5.1 above. The Artist will promptly perform those services indicated by the Client. 1.5.4. If the Artist disputes the Client’s determination that not all services have been performed, the Artist will submit reasons in writing to the Client within 30 days of the Client’s prior notification to the contrary. The Client will make reasonable efforts to resolve the dispute with the Artist in good faith. However, final determination as to whether all services have been performed will remain with the Client. 1.5.5. Upon the resolution of any disputes that arise under paragraphs 1.5.3 and 1.5.4 of this section, the Client will notify the Artist of its final acceptance of the Artwork pursuant to paragraph 1.5.2. 1.5.6. After final acceptance of the Artwork, the Artist will be available at such time(s) as may be mutually agreed upon by the Client and the Artist to attend any public meetings and community outreach functions, as well as any inauguration or presentation ceremonies relating to the dedication of the Artwork. The Client will be solely responsible for coordinating public information materials and activities related to public presentations and the Artist will be solely responsible for travels costs associated with one public appearance in association with public presentation or community outreach event associated with the Artwork. 1.6. Payments The Client will make payments to the Artist for the Services as set forth in Article 1.3 above and in Attachment 1. Article 2: Force Majeure The Client will grant to the Artist a reasonable extension of time in the event that conditions beyond the Artist’s or its subcontractor’s control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event, render timely performance of the Services impossible or unduly burdensome. The Artist will notify the Client of the needs for an extension in a timely manner. All such performance obligations will be suspended for the duration of the condition. Both parties will take all reasonable steps during the existence of the condition to assure performance of their contractual obligations when the condition no longer exists. Failure to fulfill contractual obligations due to conditions beyond either Party’s reasonable control will not be considered a breach of contract, provided that such obligations will be suspended only for the duration of such conditions. Article 3: Warranties The Artist represents and warrants that, as of the date of this Agreement and as of the date of each submission that the Artist makes to the Client under this Agreement: 3.1. The Artwork and the Approved Design and Working Drawings (together, the “Design”) are solely the result of the artistic effort of the Artist. 3.2. Except as otherwise disclosed to the Client, the Artwork and Design are unique and original and do not infringe upon any copyright or the rights of any person. 3.3. The Artwork and Design (or duplicates or substantially similar copies thereof) have not been accepted for sale elsewhere. 3.4. The Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Artwork, Design, or any copyright related thereto which may affect or impair the rights granted pursuant to this Agreement. 3.5. The Artwork and Design are free and clear of any liens from any source whatsoever. 3.6. All Artwork and Design created or performed by the Artist under this Agreement, whether created by the Artist alone or in collaboration with others, will be wholly original with the Artist and will not infringe upon or violate the rights of any third party. 3.7. The Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement. 3.8. All services performed hereunder will be performed in accordance with all applicable laws, regulations, ordinances, etc. and with all necessary care, skill, and diligence. 3.9. These representations and warranties will survive the termination or other extinction of this Agreement. Article 4: Insurance 4.1 General During the entire term that this Agreement will remain in effect, the Artist will secure and maintain in force Commercial General Liability Insurance, with limits not less than $1,000,000 each occurrence Combined Single Limit for Bodily Injury and Property Damage, including Contractual Liability, Personal Injury, Products and Completed Operations. The Artist will obtain such insurance prior to transporting the work to the Sites. The Covered Persons (as described in Section 4.2 below), and such other persons or entities designated by the Client, will be named as additional insureds on the Artist’s commercial general liability. Coverage for the additional insureds will be primary, and non-contributory with any other insurance coverage any additional insured may have. The coverage for the additional insureds will be as broad as the coverage afforded the Artist under its policies of insurance. The Artist will provide the Client with a Certificate of Insurance and copies of any applicable endorsements verifying coverage for the additional insureds in accordance with this Section 4. The Artist will notify the Client immediately if the Artist’s insurance coverage is canceled, terminated or modified for any reason. All of the Artist’s insurance policies will be endorsed to state that such insurance will be canceled, non-renewed, or modified to reduce the limits only after notice to the Client from such insurance company or companies no less than 30 days in advance of such cancellation, non-renewal, or modification. The Artist waives all rights of recovery against the Indemnified Parties (as described in Section 5.2 below) to the extent any claim against such parties is covered by the insurance required of the Artist under this Agreement. 4.2 Indemnity 4.2.1 The Artist will indemnify, protect, defend and hold harmless the Client and all project partners and their parents, subsidiaries, affiliates, officers, members, employees and agents (each a “Covered Person”) from and against all liabilities, obligations, losses, damages, judgments, costs or expenses (including legal fees and costs of investigation) (collectively, “Losses”) arising from, in connection with or caused by: 4.2.2 any personal injury or property damage caused, directly or indirectly, by any act or omission of the Artist; 4.2.3 any infringement of patent, copyright, trademark, trade secret or other proprietary right. Notwithstanding the foregoing, the Artist will have no obligation under this Section with respect to any Loss that is caused solely by the active negligence or willful misconduct of the Covered Party and is not contributed to by any act or omission (including any failure to perform any duty imposed by law) by the Artist; 4.2.4 any breach of the Artist’s obligations, representations, warranties or covenants hereunder; or 4.2.5 the Artist’s negligence or willful misconduct. 4.3 The Artist acknowledges and agrees that its obligation to defend in this Section: 4.3.1 is an immediate obligation, independent of its other obligations hereunder; 4.3.2 applies to any Loss which actually or potentially falls within the scope of this Section, regardless of whether the applicable allegations are or may be groundless, false or fraudulent; and 4.3.3 arises at and continues after the time the Loss is tendered to the Artist. 4.4 Client will indemnify, protect, defend and hold harmless the Artist and its officers, members, employees and agents (each a “Covered Person”) from and against all liabilities, obligations, losses, damages, judgments, costs or expenses (including legal fees and costs of investigation) (collectively, “Losses”) arising from, in connection with or caused by any personal injury or property damage caused, directly or indirectly, by any act or omission of the Client. 4.5 Client acknowledges and agrees that is obligation to defend in this Section: 4.5.1 is an immediate obligation, independent of its other obligations hereunder; 4.5.2 applies to any Loss which actually or potentially falls within the scope of this Section, regardless of whether the applicable allegations are or may be groundless, false or fraudulent; and 4.5.3 arises at and continues after the time the Loss is tendered to Artist Article 5: Ownership and Intellectual Property Rights 5.1 Ownership of Documents One set of presentation materials, working drawings and specifications prepared and submitted under this Agreement will be retained by the Client for possible exhibition and to hold for permanent safekeeping. 5.2 Copyright Ownership Subject to any specific rights of Client set forth herein, the Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. § 101 et seq., as the sole author of the Artwork for the duration of the copyright. 5.3 Reproduction Rights 5.3.1 In view of the intention that the final Artwork will be unique, the Artist will not make any duplicate or substantially similar three-dimensional reproductions of the Artwork, nor will the Artist grant permission to others to do so except with the permission of the Client. However, nothing will prevent the Artist from creating future artworks in the Artist’s manner and style of artistic expression. The ownership of drawings, renderings, photographs and models of the Artwork will remain with the Artist to show and use without restriction. 5.3.2. The Artist grants to the Client and its assigns an irrevocable license to make two dimensional reproductions of the Artwork and Design for maintenance, operational, informational, marketing and/or educational purposes, including reproductions used in brochures, media publicity, website or other similar publications provided that these rights are exercised in a tasteful and professional manner. 5.3.3. All reproductions of the Artwork by the Client that are published to persons other than the Client’s employees, members, agents, and representatives will, if the Client so desires at its sole election, contain a credit to the Artist in substantially the following form: [Artist’s name, Artwork title, date of publication]. 5.3.4. If the client wishes to make reproductions of the Artwork for commercial purposes (i.e. for sale as opposed to marketing), including tee shirts, post cards and posters, the Parties will execute a separate agreement to address the terms of the license granted by the Artist and the royalty the Artist will receive. 5.3.5. Third Party Infringement. If the Artist becomes aware of any infringement of the copyright or other intellectual property right in the Artwork or Design, the Artist will promptly advise the Client. The Client will have the right to take any action to protect its copyright or other intellectual property rights in the Artwork and Design, and the Artist will cooperate fully with the Client’s efforts to do so. 5.4 Alterations of Site or Removal of Artwork 5.4.1. The Client will notify the Artist in writing upon adoption of a plan of construction or alteration of the Site which would entail removal or relocation of the Artwork which might result in the Artwork being destroyed, distorted or modified. The Artist will be granted the right of consultation (but not approval) regarding the removal or relocation of the Artwork. 5.4.2. The Artwork may be removed or relocated or destroyed by the Client should the Artist and the Client not reach mutual agreement on the removal or relocation of the Artwork after a period not to exceed 30 days after written notice to the Artist. During the 30 day period, the Parties will engage in good faith discussions concerning the Artwork’s removal or relocation. 5.4.3. In the event of changes in building codes or zoning laws or regulations that cause the Artwork to be in conflict with such codes, laws or regulations, the Client may authorize the removal or relocation of the Artwork without the Artist’s prior consultation. In the alternative, the Client may commission the Artist by a separate agreement to make any necessary changes to the Artwork to render it in conformity with such codes, laws or regulations. 5.4.4. If the Client reasonably determines that the Artwork presents imminent harm or hazard to the public, other than as a result of the Owner’s failure to maintain the Artwork as required under this Agreement, the Client may authorize the removal of the Artwork without the prior consultation of the Artist. 5.4.5. This section is intended to replace and substitute the rights of the Artist under the Visual Artists’ Rights Act of 1990. To the extent that any portion of this Agreement is in direct conflict with those rights, the parties acknowledge that this Agreement supersedes that law to the extent that this Agreement is in direct conflict therewith. Article 6: Artist as an Independent Contractor The Artist agrees to perform all Design and Artwork under this Agreement as an independent contractor and not as an agent or employee of the Client. The Artist acknowledges and agrees that the Artist will not hold himself or herself out as an authorized agent of the Client with the power to bind in any manner. The Artist will provide the Client with the Artist’s Tax Identification Number and any proof of such number as requested by the Client. Article 7: Nondiscrimination The Artist will not discriminate, in any way, against any person on the basis of race, sex, color, age, religion, sexual orientation, disability, ethnicity, or national origin, in connection with or related to the performance of this Agreement. Article 8: Assignment of Artwork and Design The Artwork, Design and Services required of the Artist are personal and will not be assigned, sublet or transferred by the Artist. Any attempt by the Artist to assign this Agreement or any rights, duties or obligations arising hereunder will be void and of no effect unless prior consent is given by the Client. The Client will have the right to assign or transfer any and all of the Client’s rights and obligations under this Agreement. Article 9: Termination 9.1. The Client may terminate this Agreement with or without cause upon fifteen (15) days’ written notice to the Artist. Subject to the provisions of Section 10(c) below, the Client will pay the Artist for Services properly performed prior to the date of termination. 9.2. If the Artist defaults for cause other than death or incapacitation, the Artist will return to the Client all funds provided by the Client in excess of expenses already incurred or fees already earned. The Artist will provide an accounting. All finished and unfinished drawings, sketches, photographs and other Artwork and Design products prepared and submitted or prepared for submission by the Artist under this Agreement will be retained by the Client. The Client will retain the right to have the Artwork and Design adapted, altered, completed, fabricated, executed, delivered and installed. 9.3. Upon notice of termination, the Artist and his/her subcontractors will cease all services affected. 9.4. If the Artist becomes unable to complete this Agreement due to death or incapacitation, such death or incapacity will not be deemed a breach of this Agreement or a default on the part of the Artist for the purpose of Article 10. However, nothing in this Article will obligate the Client to accept the Artwork. In the event of death of the Artist, this Agreement will terminate effective the date of death. Article 10: Notices Any notice, consent, approval, notification, acceptance, rejection, authorization, direction, permission, submission, disclosure, agreement or other communication required or permitted to be sent pursuant to this Agreement will be deemed valid if and only if made in writing and transmitted either (a) by hand-delivery with a receipt or return receipt requested of the addressee, or (b) by reputable overnight courier, transmitted with all requisite charges prepaid, and addressed to the respective addressee at the address shown below, or to such other address as may be established pursuant to notice sent to the last address so fixed and in accordance with this Article 11. Such notice, if hand-delivered as above provided, will be effective upon issuance of receipt by the addressee, and if transmitted by courier will be effective upon receipt by the addressee. Routine communications in furtherance of the Work, however, may be transmitted by either party hereto to the other by any of the foregoing methods or by facsimile transmission or electronic mail. For Artist: Xxxxx xxxxxxxx Xxx xxxxxx Xxxxx, xx xxxxx For Client: Allison Dillon-Jauken The Arts Council, Inc. 700 Monroe Street Suite 2 Huntsville, AL 35801 Article 11: Waiver The Parties agree that a waiver of any breach or violation of any term or condition of this Agreement will not be deemed to be a waiver of any other term or condition contained herein or a waiver of any subsequent breach or violation of the same or any other term of condition. Article 12: Litigation Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, which the parties are unable or unwilling to resolve by negotiation will be settled by litigation in the State of Alabama. Article 13: Amendments No alteration, change or modification of the terms of this Agreement will be valid unless made and signed by both Parties hereto. Article 14: Conflicts with Law If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, will be held by a court of competent jurisdiction or arbitration panel or mediation procedure to be in conflict with the laws, rules, and/or regulations of the United States or the State of Alabama, invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this Agreement, or the application thereof to any person or circumstance, will remain in full force and effect and will in no way be affected, impaired or invalidated thereby to the extent the remainder of the terms, covenants, conditions or provisions of this Agreement are capable of execution. Article 15: Choice of Law This contract will be governed by the laws of the State of Alabama both as to interpretation and performance. Article 16: Entire Agreement This Agreement, including the Attachments, comprises all of the covenants, promises, agreements, and conditions between the parties. No verbal agreements or conversations between the Parties prior to the execution of this Agreement will affect or modify any of the terms or obligations.