AGREEMENT FOR COMMISSION OF PUBLIC ART WORK
nCULTURAL ARTS ALLIANCE OF WALTON COUNTY, INC.
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nDRAFT
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nTHIS AGREEMENT, is entered into this ____ day of _______________, 20___, by and between Cultural Arts Alliance of Walton County, Inc, Florida (hereinafter the “Owner”) with offices at 105 Hogtown Bayou Lane, Santa Rosa Beach, FL and [artist’s name or artist’s name d.b.a. business name] (hereinafter, “Artist”) with offices at _________________________________________________.
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nWHEREAS, the Owner requires the services of an artist to create a work of art (hereinafter the “Artwork” in a public space located at the Underwater Museum of Art site at the floor of the Gulf of Mexico (hereinafter the “Site”); and
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nWHEREAS, the Artist is a professional artist whose work and qualifications make the Artist uniquely qualified to create the Artwork;
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nWHEREAS, the Owner has selected the Artist based upon the Artist’s work and qualifications; and
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nWHEREAS, the Artist and the Owner wish to perform under the terms and conditions of this Agreement;
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nNOW, THEREFORE, in consideration of the above-stated premises and subject to the conditions hereinafter set forth, the parties agree as follows:
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na. “Artist” shall mean: ARTIST NAME . Where there is more than one Artist, all Artists shall be referred to collectively as “Artist.” If Artist is comprised of two or more individual persons or entities, each individual person or entity shall be jointly and severally responsible for satisfying Artist’s obligations under this Agreement, and each individual person or entity shall be liable for the acts and omissions of every other individual person or entity comprising Artist.
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nb. “Artwork” shall mean the work of art designed by Artist for the Site under the terms of this Agreement, as described and defined in Artist Proposal, Conceptual Design, of the Services to be Provided by Artist.
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nArticle 1 Scope of Services
n1.1 Artist’s Obligations
na. The Artist shall perform all services and furnish all supplies, material and/or work equipment as necessary for the design, fabrication, transportation and installation of the Artwork. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement.
nb. The Artist shall determine the artistic expression, design, dimensions and materials of the Artwork, subject to review and acceptance by the Owner and any regulatory agencies with project oversight, as set forth in this Agreement. The Artist will do so in a manner that ensures that the Artwork as installed shall not interfere with the intended use of the Site, safety devices and procedures, and other needs and functions of the site as defined by Owner and/or ordinance prior to the development of a design by the Artist
nc. The Artist shall prepare the design concept described in Section 1.3 of this Agreement.
nd. The Artist shall complete the fabrication, transportation and installation of the Artwork by the scheduled dates as provided in Section 1.4(b)(i) of this Agreement.
ne. The Artist shall arrange for the transportation of the Artwork in coordination with Owner. Artist shall notify Owner of any perceived conflict, defect or non-compliance with specifications. All work shall be performed by qualified professionals and by licensed contractors as required by law.
nf. Artist shall provide required insurance in amounts and limits specified in Article 5 and Exhibit C.
ng. Artist shall provide a list of all subcontractors along with a copy of the agreement between the Artist and each subcontractor.
nh. Artist shall provide a maintenance manual with a description of all materials, processes and products utilized in the Artwork.
ni. Artist shall provide a set of “as built” drawings if there is significant deviation from approved and permitted construction documents.
nj. Artist shall provide photographic documentation of the Artwork in a format acceptable to Artist and Owner.
nk. Artist shall be available with reasonable advance notice for a reasonable number of in-person or phone meetings required to coordinate design and project implementation, ceremonies and the like, as necessary.
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n1.2 Owner’s Obligations
na. The Owner shall perform all obligations in strict compliance with all terms and conditions in this Agreement.
nb. The Owner shall be responsible for providing the Artist, at no expense to the Artist, copies of existing designs, drawings, reports, list of required permits, and other existing relevant data, if any, which is needed by Artist in order to perform.
nc. The Owner shall be responsible for compliance with all applicable laws and regulations, including but not limited to zoning or environmental regulations, and prior to Artist’s development of design, shall provide to the artist in writing an explanation of any specific limitations imposed by such laws and/or regulations that may impact the Artwork including the policies, guidelines and approvals required by regulatory or oversight agencies such as a cultural affairs office.
nd. The Owner shall prepare the Site in accordance with the specifications detailed in the approved design concept in Section 1.3 of this Agreement. The Owner shall be responsible for all expenses, labor and equipment to prepare the Site for the timely transportation and installation of the Artwork. The Owner shall complete the Site preparations by the scheduled installation date as provided in Section 1.4(b)(i) of this Agreement or shall contact the Artist in writing informing him or her of any delays.
ne. The Owner shall provide and install a plaque on or near the Artwork containing a credit to the Artist and a copyright notice substantially in the following form: Copyright © [Artist’s name, date of publication]. If the plaque is to be placed on the Artwork or Artwork pedestal, it should be done in consultation with the Artist.
nf. The Owner shall not permit any use of the Artist’s name or misuse of the Artwork which would reflect discredit on the Artist’s reputation as an artist or which would violate the spirit of the Artwork, should such use or misuse be within the Owner’s control.
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n1.3 Design
na. Concept/Schematic
ni. The Artist submitted a design concept/schematic (the “Design”) which was selected and approved by the Owner. The Design shall be attached to this Agreement as Exhibit A.
nb. Approval
ni. Within three (3) days after the execution of this agreement, the Owner shall notify the Artist if Owner requires any revisions to the Design in order to comply with any applicable laws, ordinances and/or regulations or for other reasons including, but not limited to, ensuring the physical integrity of the Artwork or its installation at the Site. If agreed upon by both parties, such revisions will become a part of the Design.
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nc. Final Design
ni. Upon approval of the schematic design by Owner, Artist is authorized to proceed with Final Design which shall include the following: presentation quality materials, which shall include colored drawings or computer-generated color images (in plan and elevation) and/or 3-dimensional models that accurately reflect the Artwork and how it will be installed at the Site, mock-ups, final color and materials samples, proposed fabrication methods, feasibility studies and final cost estimates at design completion. When used in reference to the proposed Artwork, Final Design Documents shall fix and describe the size and character of the Artwork with respect to its relationship to the Site, including architectural and structural systems, materials and other elements as may be appropriate.
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nd. Final/Construction Documents
ni. Artist shall deliver Marquette (computer model or otherwise as agreed to by both parties).
nii. Artist shall deliver a schedule describing Artist’s specific timelines for completing the Artwork.
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n1.4 Budget, Payment and Deliverables Schedule
na. Budget
ni. The Artist shall prepare a budget, which shall include all goods, services and materials with such costs itemized. The Budget shall be attached to this Agreement as Exhibit B.
nii. Budget shall mean a specific and detailed document identifying the cost of completion of all work under this Agreement, including all modifications. The Budget shall include the costs for all design fees and costs; preliminary and final engineering requirements; materials and labor for fabrication, including Artist and subcontractors’ costs; consultants, including engineers and specifications writers; transportation of Artwork; installation of Artwork, including any necessary permits; permits and licenses; required insurance; any sales tax; and a 5% to10% contingency allowance. Calculation of the budget will take into consideration the possible inflation of service and material costs between the date of execution of this Agreement and the anticipated completion date.
niii. If the Artist incurs costs in excess of the amount listed in the budget, the Artist shall pay such excess from the Artist’s own funds unless the Artist obtains approval in writing for such additional costs from the Owner (or such costs were the result of actions or inaction of the Owner).
niv. Payment Schedule
nv. Artist’s completion milestones and payment schedule is as set forth in Exhibit C, Payment Schedule, which is incorporated herein by reference
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n1.5 Schedule and Progress Reports
na. The Artist shall notify the Owner of the anticipated schedule for the fabrication and transportation of the Artwork, including a schedule for the submission of progress reports and inspections if any required by Owner or permitting agency. The Schedule may be amended by written agreement. The Schedule of Deliverables must identify a specific date or timeframe for the completion of the Artwork. This Schedule of Deliverables is included as Appendix C.
nb. The Artist shall inform the client of the progress of each phase of work completed under the Agreement.
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n1.6 Fabrication Stage
na. The Artist shall fabricate the Artwork in substantial conformity with the Design. The Artist may not deviate from the approved design without written approval of the Owner.
nb. If the Artwork is being constructed on site, the Artist shall avoid creating nuisance conditions arising out of the Artist’s operations.
nc. The Owner shall have the right to review the Artwork at reasonable times during the fabrication thereof upon reasonable notice.
nd. If the Owner, upon review of the Artwork, determines that the Artwork does not conform to the approved Final Design, the Owner reserves the right to notify the Artist in writing of the deficiencies and that the Owner intends to withhold the next budget installment within three (3) days of the determination as in paragraph (g) below.
ne. The Artist will have fifteen (15) days to cure the Owner’s objections and will notify the Owner in writing of completion of the cure. The Owner shall promptly review the Artwork, and upon approval shall release the next budget installment. If the Artist disputes the Owner’s determination that the Artwork does not conform, the Artist shall promptly submit reasons in writing to the Owner within three (3) days of the Owner’s prior notification to the contrary. The Owner shall 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 shall remain with the Owner.
nf. The Artist shall notify the Owner in writing when fabrication of the Artwork has been completed, and that the Artwork is ready for delivery and installation at the Site if the Artwork was fabricated off-site.
ng. Prior to the transportation and installation of the Artwork, the Owner shall inspect the Artwork within three (3) days after receiving notification pursuant to paragraph (f) to determine that the Artwork conforms with the Final Design: give final approval of the fabricated Artwork and; authorize the installation of the Artwork at the site. The Owner shall not unreasonably withhold final approval of the fabricated Artwork. In the event that the Owner does withhold final approval, the Owner shall submit the reasons for such disapproval in writing within three (3) days of examining the fabricated Artwork. The Artist shall then have seven (7) days from the date of the Owner’s notice of the disapproval to make the necessary adjustments to the fabricated Artwork in accordance with such writing. The Artist shall not be penalized for any delay in the delivery and installation of the Artwork to the Site unless the Artist has willfully and substantially deviated from the Design without the prior approval of the Owner. The Artist shall then be held responsible for any expenses incurred in correcting such deviation.
nh. The Owner shall promptly notify the Artist of any delays impacting installation of the Artwork. Any additional storage and insurance costs incurred by the Artist shall be borne by the Owner in the event that the delay is the caused by the Owner.
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n1.7 Installation
na. Upon the Owner’s final approval of the fabricated Artwork as being in conformity with the Design, the Artist shall deliver the completed Artwork to the above-ground Site in accordance with the schedule provided for in Section 1.4(b).
nb. The Artist will coordinate closely with the Owner to ascertain that the Site is prepared to receive the Artwork. Artist must notify Owner of any adverse conditions at the Site that would effect or impede the installation of the Artwork.
nc. The Artist is responsible for timely delivery of the Artwork.
nd. The Artist may be present to supervise the installation of the Artwork.
ne. Upon installation, the Artwork shall be deemed to be in the custody of the Owner for purposes of Article 3 and Article 5 of this Agreement; the Owner assumes liability for any damage to the Artwork or injury to persons or property caused by the Artwork or any activity related to the Artwork.
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n1.8 Approval and Acceptance
na. The Artist shall notify the Owner in writing when all services as required of both Parties by this Agreement prior to this paragraph have been completed in substantial conformity with the Design and contract documents.
nb. The Owner shall promptly notify the Artist in writing of its final acceptance of the Artwork within seven (7) days after the Artist submitted written notice pursuant to paragraph (a) above. The effective date of final acceptance shall be the date the Owner submits written notice to the Artist of its final acceptance of the Artwork. The final acceptance shall be understood to mean that the Owner acknowledges completion of the Artwork in substantial conformity with the Design, and that the Owner confirms that all services as required of both Parties by this Agreement prior to paragraph (c) of this section have been completed. Title to the Artwork to the Owner passes upon final acceptance of the Artwork and final payment by Owner to Artist. If a regulatory agency must approve the completed artwork, the Owner should move promptly to gain such approval as it will be a precondition to the Owner’s ability to accept and approve the finished artwork from the Artist.
nc. If the Owner disputes that all the services have been performed, the Owner shall notify the Artist in writing of those services the Artist has failed to perform within thirty (30) days after the Artist submitted written notice pursuant to paragraph (a) above. The Artist shall promptly perform those services indicated by the Owner.
nd. If the Artist disputes the Owner’s determination that not all services have been performed, the Artist shall submit reasons in writing to the Owner within seven (7) days of the Owner’s prior notification to the contrary. The Owner shall make reasonable efforts to resolve the dispute with the Artist in good faith. However, final determination as to whether all services have been performed shall remain with the Owner.
ne. Upon the resolution of any disputes that arise under paragraphs (c) and (d) of this Section, the Owner shall notify the Artist of its final acceptance of the Artwork pursuant to paragraph (b).
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nArticle 2. Terms of Agreement
na. Duration
ni. This Agreement shall be effective on the date that this contract has been signed by both parties, and, unless terminated earlier pursuant to such provisions in the Agreement, shall extend until final acceptance by the Owner under Section 1.8(b), or submission of final payment to the Artist by the Owner under Exhibit B, whichever is later. Extension of time of performance hereunder may be granted upon the request of one party and the consent of the other thereto, which consent shall not be unreasonably withheld. Such extension shall be in writing, signed by both parties, and attached to the schedule described in Section 1.4(b)(i).
nb. Force Majeure
ni. The Owner shall grant to the Artist a reasonable extension of time in the event that conditions beyond the Artist’s control render timely performance of the Artist’s services impossible or unduly burdensome. All such performance obligations shall be suspended for the duration of the condition. Both parties shall take all reasonable steps during the existence of the condition to assure performance of their contractual obligations when the condition no longer exists. Failure to fulfill contractual obligations due to conditions beyond either Party’s reasonable control will not be considered a breach of contract, provided that such obligations shall be suspended only for the duration of such conditions.
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nArticle 3. Risk of Loss
nThe Artist shall bear the risk of loss or damage to the Artwork until the installation of the Artwork. The Artist shall take such measures as are reasonably necessary to protect the Artwork from loss or damage. The Owner shall bear the risk of loss or damage to the Artwork prior to final acceptance only if, during such time, the partially or wholly completed Artwork is in the custody, control or supervision of the Owner or its agent(s) for the purposes of transporting, storing, installing or performing other services to the Artwork.
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nArticle 4 Artist’s Representations and Warranties
n4.1 Warranties of Title
nThe Artist represents and warrants that:
na. the Artwork is solely the result of the artistic effort of the Artist;
nb. except as otherwise disclosed in writing to the Owner, the Artwork is unique and original and does not infringe upon any copyright or the rights of any person;
nc. the Artwork (or duplicate thereof) has not been accepted for sale elsewhere;
nd. the Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Artwork or any element thereof or any copyright related thereto which may affect or impair the rights granted pursuant to this Agreement;
ne. the Artwork is free and clear of any liens from any source whatsoever;
nf. all Artwork created by the Artist under this Agreement, whether created by the Artist alone or in collaboration with others shall be wholly original with the Artist and shall not infringe upon or violate the rights of any third party;
ng. the Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement;
nh. all services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc. and with all necessary care, skill, and diligence;
ni. these representations and warranties shall survive the termination or other extinction of this Agreement.
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n4.1 Warranties of Quality and Condition
na. The Artist represents and warrants that all work will be performed in accordance with professional “workmanlike” standards and free from defective or inferior materials and workmanship (including any defects consisting of “inherent vice,” or qualities that cause or accelerate deterioration of the Artwork) for year after the date of final acceptance by the Owner under Section 1.8(b).
nb. The Artist represents and warrants that the Artwork and the materials used are not currently known to be harmful to public health and safety.
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nArticle 5 Insurance
n5.1 General
na. The Artist acknowledges that until installation of the Artwork under Section 1.7(e), any injury to property or persons caused by the Artist’s Artwork or any damage to, theft of, vandalism to, or acts of God affecting the Artist’s Artwork are the sole responsibility of the Artist, including, but not limited to, any loss occurring during the creation, storage, transportation or delivery of the Artist’s Artwork, regardless of where such loss occurs.
nb. Terms for the procurement and duration of insurance are provided in Exhibit C.
nc. Required insurance policies are described in Exhibit C.
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n5.2 Indemnity
na. The Artist shall indemnify the Owner, its respective officers, agents, and employees, from any claims brought arising out of the breach of this Agreement or any negligent occurrence which occurs pursuant to the performance of this Agreement by the Artist, its subcontractors, agents or employees.
nb. The Owner shall indemnify the Artist, Artist’s subcontractors, agents or employees from any claims brought arising out of the breach of this Agreement or any negligent occurrence which occurs pursuant to the performance of this Agreement by the Owner, its respective officers, agents, and employees.
nc. Each Party shall immediately notify the other of any written claim regarding any matter resulting from or relating to the Party’s obligations under this Agreement. Each Party shall cooperate, assist, and consult with the other in the defense or investigation of any such claim arising out of or relating to the performance of this Agreement.
nd. The indemnification shall include reasonable attorneys’ fees and costs.
ne. This indemnification shall survive the termination or expiration of this Agreement.
nf. Notwithstanding any provision of this Agreement to the contrary, no Party shall recover from a Party to this Agreement in an action, of whatever nature, in contract or tort, any consequential or incidental damages, lost profits, or any type of expectancy damages.
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nArticle 6 Ownership and Intellectual Property Rights
n6.1 Title
nTitle to the Artwork shall pass to the Owner upon the Owner’s written final acceptance and payment for the Artwork pursuant to Section 1.8(b) and Exhibit B.
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n6.2 Ownership of Documents
nOne set of presentation materials prepared by Artist and submitted to Owner under this Agreement shall be retained by Owner.
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n6.3 Copyright Ownership
nThe 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.
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n6.4 Reproduction Rights
na. In view of the intention that the final Artwork shall be unique, the Artist shall not make any additional exact duplicate three-dimensional reproductions of the final Artwork, nor shall the Artist grant permission to others to do so except with the written permission of the Owner. However, nothing shall prevent the Artist from creating works in the Artist’s manner and style of artistic expression.
nb. The Artist grants to the Owner and its assignees an irrevocable license to make two-dimensional reproduction of the Artwork for non-commercial purposes, including, but not limited to, reproductions used in brochures, media publicity, and exhibition catalogues or other similar publication provided that these rights are exercised in a tasteful and professional manner.
nc. All reproductions by the Owner shall contain a credit to the Artist and a copyright notice in substantially the following form: © [Artist’s name, date of publication].
nd. The Artist shall use his/her best efforts in any public showing or resume use of reproductions to give acknowledgment to the Owner in substantially the following form: “An original artwork owned and commissioned by the Owner.”
ne. The Artist shall, at the Artist’s expense, cause to be registered with the United States Register of Copyrights, a copyright in the Artwork in the Artist’s name.
nf. If the Owner wished to make reproductions of the Artwork for commercial purposes including, but not limited to, tee shirts, post cards and posters, the Parties shall execute a separate agreement to address the terms of the license granted by the Artist and the royalty the Artist shall receive.
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nArticle 7 Artist’s Rights
n7.1 General
na. The Artist retains all rights under state and federal laws including §106A of the Copyright Act of 1976.
nb. The Owner agrees that it will not intentionally alter, modify, change, destroy or damage the Artwork without first obtaining permission from the Artist. The Owner further agrees to take reasonable measures to avoid these from occurring from the gross negligence of the Owner, its representatives, or employees pursuant to the federal Visual Artists’ Rights Act.
nc. If any alteration or damage to the Artwork occurs, the Artist shall have the right to disclaim authorship of the Artwork in addition to any remedies he/she may have in law or equity under this contract. Upon written request, the Owner shall remove the identification plaque and all attributive references to the Artist at its own expense within ninety (90) days of receipt of the notice. No provision of this Agreement shall obligate the Owner to alter or remove any such attributive reference printed or published prior to the Owner’s receipt of such notice. The Artist may take such other action as the Artist may choose in order to disavow the Artwork
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n7.2 Alteration of Site or Removal of Artwork
na. The Owner shall notify the Artist of any proposed significant alteration of the Site that would affect the intended character and appearance of the Artwork. The Owner shall consult with the Artist in the planning and execution of any such alteration. The Owner shall make a reasonable effort to maintain the integrity of the Artwork.
nb. The Owner agrees not to arbitrarily remove or relocate the Artwork without first obtaining the Artist’s express permission to do so. The Artist shall not unreasonably withhold approval of removal or relocation of the Artwork. Should the Artist agree to such removal or relocation of the Artwork, the Artist shall provide the Owner with written handling instructions. In the event that the Artist is deceased or unable to otherwise give his consent, the then current owner of the copyright of the Artwork shall not unreasonably withhold permission, keeping in mind the intentions of the Artist at the time of commission and fabrication.
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nArticle 8 Artist as an Independent Contractor
nThe Artist agrees to perform all work under this Agreement as an independent contractor and not as an employee of the Owner. The Artist acknowledges and agrees that the Artist shall not hold himself out as an authorized agent of the Owner with the power to bind in any manner.
nThe Artist shall provide the Owner with the Artist’s Tax Identification number and any proof of such number as requested by the Owner.
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nArticle 9 Assignment of Artwork
nThe work and services required of the Artist are personal and shall not be assigned, sublet or transferred. Any attempt by the Artist to assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect unless prior written consent is given by the Owner. The Owner shall have the right to assign or transfer any and all of the Owner’s rights and obligations under this Agreement, subject to the Artist’s consent, if ownership of the Site is transferred; if the Artist refuses to give consent, this Agreement shall terminate.
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nArticle 10 Termination
na. Either Party may terminate this Agreement without recourse by the other where performance is rendered impossible or impracticable for reasons beyond such Party’s reasonable control such as, but not limited to, acts of nature; war or warlike operation; superior governmental regulation or control; public emergence; or strike or other labor disturbances. Notice of termination of this Agreement shall be given to the non-terminating party in writing not less than thirty (30) days prior to the effective date of termination.
nb. The Owner may terminate this Agreement without cause upon thirty (30) days written notice to the Artist. The Owner shall pay the Artist for services performed and commitments made prior to the date of the termination, consistent with the schedule of payments set forth in Exhibit B of this Agreement. The Artist shall have the right to an equitable adjustment in the fee for services performed and expenses incurred beyond those for which the Artist has been compensated to date under Exhibit B with allowance for documented lost opportunities, unless the parties come to a settlement otherwise. The Artist shall retain possession and title to the [studies, drawing, designs, maquettes, and models] already prepared and submitted or prepared for submission to the Owner by the Artist under this Agreement prior to the date of termination.
nc. If either party to this agreement shall willfully or negligently fail to fulfill in a timely and proper manner, or otherwise violate any of the covenants, agreements or stipulations material to this Agreement, the other party shall thereupon have the right to terminate this Agreement by giving written notice to the defaulting party of its intent to terminate specifying the grounds for termination. The defaulting party shall have thirty (30) days after the effective date of the notice to cure the default. If it is not cured by that time, this Agreement shall terminate.
nd. If the Artist defaults [for cause other than death or incapacitation], the Artist shall return to the Owner all funds provided by the Owner in excess of the expenses already incurred. The Artist shall provide an accounting of these expenses. 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 be retained by the Artist. The Owner shall retain the right to have the Artwork fabricated or executed. However, the Artist shall retain the copyright in the Artwork and all rights under Article 7 and Article 8.
ne. Upon notice of termination, the Artist and his subcontractors shall cease all services affected.
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nArticle 11 Death or Incapacity
na. If the Artist becomes unable to complete this Agreement due to death or incapacity, such death or incapacity will not be deemed a breach of this Agreement or a default on the part of the Artist for purposes of Article 10.
nb. In the event of incapacity, the Artist shall assign his obligations and services under this contract to another artist provided that the Owner approves of the new artist and so agrees in writing. If the Owner does not agree, the Owner may elect to terminate this Agreement. The Artist shall retain all rights under Article 6 and Article 7. The Artwork and any reproductions thereof shall contain a credit to the Artist and a copyright notice in substantially the following form: © [Artist’s name, date of publication].
nc. In the event of death, this Agreement shall terminate effective the date of death. The Artist’s heirs shall retain rights under Article 6 and Article 7. The Artist’s executor shall deliver to the Owner the Artwork in whatever form or degree of completion it may be in at the time. Title to the Artwork shall then transfer to the Owner. However, the Artwork shall not be represented to be the completed work of the Artist unless the Owner is otherwise directed by the Artist’s heirs.
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nArticle 12 Notices and Documents
nNotices under this Agreement shall be delivered personally, through e-mail to official point of contact, or through the [registered or certified mail, return receipt requested] mail, postage prepaid, to the addresses stated below, or to any other address as may be noticed by a Party:
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nFor the Owner: Cultural Arts Alliance
nJennifer Steele
n105 Hogtown Bayou Lane
nSanta Rosa Beach, FL 32459
njennifer@culturalartsalliance.com
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nFor the Artist:
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nNotice shall be deemed effective on the date personally delivered or, if mailed, [three (3) days] after the postmarked date.
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nArticle 13 Waiver
nThe Parties agree that a waiver of any breach or violation of any term or condition of this Agreement shall 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 or condition.
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nArticle 14 Conflict of Interest
nThe Artist and Owner shall avoid all conflicts of interest or appearance of conflicts of interest in the performance of this Agreement.
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nArticle 15 Arbitration
nIf, during the creation of the Artwork, its installation and subsequent existence, either Party breaches this Agreement, each Party agrees to submit to arbitration upon the request of the other Party provided that the breach is not cured within a reasonable time under paragraph (c) of Article 11.
nIf an ambiguity arises regarding this Agreement upon which the Parties cannot agree or a dispute arises as to the completion of a provision, the Parties shall submit to arbitration.
n[Notwithstanding any provision of this Agreement to the contrary, any damage award to a party on account of a Party’s breach of this Agreement, with the exception of the Artist’s duty under Article 6 to procure and maintain insurance, shall not exceed an amount equal to the sum of the payment in Exhibit B.]
nEach party agrees to be responsible for its own attorney’s fees except as otherwise provided by statute.
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nArticle 16 Amendments
nNo alteration, change or modification of the terms of this Agreement shall be valid unless made in writing and signed by both Parties hereto.
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nArticle 17 Conflict with the Law
nIf any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall be held by a court of competent jurisdiction or arbitration panel to be in conflict with the laws, rules and/or regulations of the United States or the State of Florida, 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, shall remain in full force and effect and shall 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.
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nArticle 18 Choice of Law
nThis contract shall be governed by the laws of the State of Florida both as to interpretation and performance.
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nArticle 19 Entire Agreement
nThis Agreement, including the exhibits, comprises all of the covenants, promises, agreements and conditions between the Parties. No verbal agreements or conversation between the Parties prior to the execution of this Agreement shall affect or modify any of the terms or obligation.
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nFor Owner: For Artist:
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n______________________ _____________________
nName Name
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n______________________ _____________________
nTitle Title
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n______________________ _____________________
nDate Date
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nExhibit A
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nDescription of Project
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nExhibit B
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nBudget and Payment Schedule
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nThe Owner shall pay the Artist a fixed fee of $5,500.00, which shall constitute full and complete compensation for all the services performed and material furnished by the Artist under this Agreement. Payment shall be made in accordance with the following scheduled installments, each installment representing full and final payment for all services and material provided prior to payment thereof:
na. $500.00 upon the execution of this Agreement, [recognizing that the Artist will invest time and expense in preparing the Design as set forth under Section 1.3;
nb. $500.00 upon submission of the Design as set forth under Section 1.3
nc. $1,000.00 upon the Owner’s notification to the Artist of its approval of the Design as set forth under Section 1.3]; alternately, upon permitting of construction documentation since there’s not a required owner approval of final drawings in 1.3
nd. $1,000.00 upon commencement of fabrication
ne. $1,000.00 upon completion of 50% of the fabrication
nf. $500.00 upon completion of the fabrication and when the Artwork is ready for delivery and installation at the Site as set forth under Section 1.5(f);
ng. $500.00 upon delivery by Artist to the Owner of Maintenance Manual with written instructions for the maintenance and preservation of the Artwork under Section 1.7(e)
nh. $500.00 upon final acceptance of the Artwork by the Owner as set forth under Section 1.8(b) and approval by the regulatory agency.
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nExhibit C
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nInsurance
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nGeneral
na. The Artist shall procure and maintain for the duration of this Agreement, at the Artist’s expense, insurance in the kinds and amounts as provided in this Exhibit with insurance companies authorized to do business in [name of city or state]. Such insurance shall cover the Artist’s agents, contractors, subcontractors or employees. The Owner, its officials, employees, agents and contractors shall be named as additional insureds. The coverage shall contain no special limitations on the scope of protection afforded to the Owner, its officials, employees, agents and contractors.
nb. The Artist and the Artist’s subcontractors’ insurance coverage shall be the primary insurance as respects the Owner, its officials, employees, agents and contractors. Any insurance or self-insurance maintained by the Owner, its officials, employees, agents and contractors shall be in excess of the Artist’s or the Artist’s subcontractor’s insurance and shall not contribute to the Artist’s or the Artist’s subcontractor’s insurance. The coverage shall state that the Artist’s or the Artist’s subcontractors’ insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
nc. Prior to undertaking any work under this Agreement, the Artist, at no expense to the Owner, shall furnish to the Owner a certificate of insurance with original endorsements affecting coverage for each of the insurance policies provided in this Exhibit. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates must be current and the Artist must submit replacement or renewal certificates of insurance for all the policies expiring during the term of this Agreement. Each certificate shall clearly indicate that the Artist has obtained insurance in the type, amount and classification as specified in this Exhibit and that no material changes, cancellation, suspension or reduction in limits of insurance shall be effective except after [30] days prior written notice to the Owner. Each certificate shall indicate that the subcontractors are additionally insured or the Artist shall furnish separate certificates for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated in this Agreement, including, but not limited to, naming the parties as additional insureds.
nd. Any deductibles or self-insured retentions must be declared to, and approved by, the Owner. At the option of the Owner, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Owner, its officials, employees, agents and contractors; or the Artist shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses in the amount of $[_________].
ne. Despite any changes to or cancellation of insurance, the Artist remains responsible for maintaining the required insurance coverage for the duration of the Agreement.
nf. Failure of the Artist to comply with any of the terms of this Article 6 shall be considered a material breach of this Agreement and cause for its immediate termination.
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nInsurance Policies
na. Commercial General Liability insurance policy, written on an occurrence form, including all the usual coverage known as:
n1. premises/operations liability
n2. products/completed operations
n3. personal/advertising injury
n4. contractual liability
n5. [broad-form property damage]
n6. [independent contractor’s liability]
nSaid policy must provide the following minimum coverage:
n1. $[1,000,000] combined single limit per occurrence for bodily injury, personal injury and property damage.
n2. $[1,000,000] annual aggregate
nb. Automobile liability insurance policy, including coverage for owner, non-owner, leased or hired vehicles, providing the following minimum coverage:
n1. bodily injury liability of $[50,000] for each person,
n2. $[300,000] per occurrence,
n3. property damage liability of $[25,000] for each occurrence.
nThe Artist agrees to keep in good standing a valid driver’s license at all times during the term of this Agreement.
nc. [Transportation/Cartage insurance all risk. Coverage must include loading, transportation and unloading of the Artwork. If the Artwork is to be loaded, transported or unloaded by a person or entity other than the Artist, the insurance coverage must cover that person or entity. The minimum limit shall be the total amount of compensation paid to Artist through the date of loading under Exhibit B.]
nd. [All Risk Installation insurance which covers physical damage to or destruction of the Artwork. If the Artwork is to be installed by a person or entity other than the Artist, the insurance coverage must cover that person or entity. The minimum limit shall be the total amount of compensation paid to the Artist through the date of the beginning of the installation of the Artwork under Exhibit B.]
ne. [Worker’s Compensation and Employers’ Liability insurance in accordance with the statutory requirements of the State of F providing coverage for any and all employees of Artist. The Artist shall require all subcontractors to carry this coverage also. The minimum coverage for the Worker’s Compensation and Employers’ Liability insurance shall be $[100,000].
nf. If, however, the Artist does not have any employees as defined by state statutes and regulations and does not wish to cover himself for Worker’s Compensation, the Artist shall sign the following statement:
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n[“I do not have, nor intend to have for the full term of this Agreement, any employees. Furthermore, I do not wish to obtain or be covered under any Worker’s Compensation insurance coverage and, therefore, am signing this statement in lieu of providing the above require Worker’s Compensation coverage.”
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n___________________________
n(Artist’s signature)
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n___________________________
n(Print Artist’s name)]
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nThe requirement for Worker’s Compensation and Employers’ Liability insurance shall be waived in writing upon submission of this signed statement by the Artist to the Owner.
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ng. Artist will be responsible for obtaining Professional Errors and Omissions coverage for services provided by licensed engineers and architects with a general aggregate limit of $[1,000,000] and for assuring engineers and other experts have appropriate Professional Errors and Omissions coverage or name them as additional insureds to the policy of the Artist.
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