AGREEMENT FOR FINAL DESIGN, FABRICATION AND DELIVERY OF PUBLIC ARTWORK THIS AGREEMENT (this “Agreement”) is entered into as of , 2012, by and between Arts Huntsville (the “Client”), and (the “Artist”). WHEREAS, Client is developing an art installation for community partners located at 112 Washington Street SE, Huntsville, AL shown in Attachment 1 (the “Site”); WHEREAS, the Client seeks the services of the Artist to develop the design and installation of Artwork; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows: Article 1: Scope of Services 1.1. Design The Artist will prepare a proposal sketch to present to Client on or before June 12, 2020. If required, Artist will present revised sketch(es) to Client on or before June 24, 2020. 1.2. Fabrication Stage 1.2.1. The Artist will fabricate the Artwork in substantial conformity with the Approved Design. The Artist may not deviate from the Approved Design without written approval of the Client. 1.2.2. 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, unless the Client disapproves. 1.2.3. If the Client, upon review of the Artwork, determines that the Artwork does not conform to the Approved Design, the Client reserves the right to notify the Artist of the deficiencies and that the Client intends to withhold the next budget installment. 1.2.4. The Artist will promptly cure the Client’s objections and will notify the Client of completion of the cure. The Client will promptly review the Artwork. 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 2 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. 1.2.5. 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 within 2 days of examining the fabricated Artwork. The Artist will then have 2 days from the date of the Client’s notice of the disapproval to make the necessary adjustments to the fabricated Artwork. The Artist will not be penalized for any delay in the 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. 1.3. 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. 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. Any claim of the Artist for adjustment under this paragraph must be asserted in writing within 3 days after the date of the revision by the Artist. 1.4. Installation 1.4.1. Upon the Client’s final approval of the design artist will execute the artwork onsite to be completed no later than August 14, 2020. 1.4.2. Upon completion of the Artwork, the Artwork will be deemed to be in the custody of the Client. 1.4.3. Upon completion 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 Site is an unsecured public space 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 via e-mail 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 5 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 via e-mail 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. After final acceptance of the Artwork, the Artist will be available at such time(s) between August 17 and August 21, 2020 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. 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 2. 1.7 Timeline The following timeline shall apply to this project: June 12, 2020 – Artist Sketch Due June 18, 2020 – Artist Contracted June 24, 2020 – Artist Sketch Revision Due (as needed) June 29, 2020 – Acceptance of Artist Sketch July 13 – August 14, 2020 Mural Installation Period (per artist’s schedule) August 14, 2020 – Mural Delivered/Completed August 17 – 21, 2020 – PR Events 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. The Artist will notify the Client of the needs for an extension in a timely manner. 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: Ownership and Intellectual Property Rights 4.1 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. 4.2 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. 4.3 Reproduction Rights 4.3.1 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. 4.3.2. 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, social media promotion 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. 4.3.3. 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]. 4.3.4. If the Client and/or its assigns wish 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. 4.3.5. 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. 4.4 Alterations of Site or Removal of Artwork 4.4.1. Neither Client nor Artist retains ownership of the site where the Artwork is installed, and both Client and Artist understand that the property owner (the “Owner) will maintain the Artwork for a minimum of twelve (12) months. After this time, maintenance, removal or demolition of Artwork or site lies in the sole discretion of the Owner. 4.4.2. In the event of changes in building codes or zoning laws or regulations during the initial twelve 12) month exhibit period cause the Artwork to be in conflict with such codes, laws or regulations, the Client and/or Owner may authorize the removal or relocation of the Artwork without the Artist’s prior consultation. In the alternative, the Client and/or Owner 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. 4.4.3. If the Client and/or Owner 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. 4.4.4. 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 5: 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 6: 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 7: 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 8: Termination 8.1. The Client may terminate this Agreement with or without cause upon three (3) days’ written notice to the Artist. The Client will pay the Artist for Services properly performed prior to the date of termination. 8.2. 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. 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. 8.3. Upon notice of termination, the Artist and his/her subcontractors will cease all services affected. Article 9: 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 10. 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: For Client: Arts Huntsville c/o Allison Dillon-Jauken, Executive Director 700 Monroe Suite, Suite 2 Huntsville, AL 35801 Article 10: 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 11: 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 12: Amendments No alteration, change or modification of the terms of this Agreement will be valid unless made and signed by both Parties hereto. Article 13: 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 14: Choice of Law This contract will be governed by the laws of the State of Alabama both as to interpretation and performance. Article 15: 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. Article 16: “Including” The words “including” and “include” and variations thereof are used throughout the Agreement in their non-exclusive sense so that in each instance they mean “including but not limited to” or “include but not limited to.” CLIENT By: Title: Date: ARTIST By: Date: Attachment 1 Site – Mural Site (separate attachment) Attachment 2 Payment Schedule Subject to Article 1.6, the Client will pay the Artist a fixed fee of $10,000.00, which will constitute full and complete compensation for all the Services performed and materials furnished by the Artist under this Agreement, including but not limited to fabrication and materials costs, fees, travel, overhead, fabrication, shipping, permitting, installation costs and contingency. Payment will be made in accordance with the following scheduled installments: 1) $200 for requested Proposal Sketch 2) 50% of the contract award upon the execution of contract ($5,000.00) 3) 50% of the remaining sum at final acceptance of Artwork by the Client ($5,000.00)