AGREEMENT (DRAFT) THIS CONTRACT (“Agreement”), effective as of the day of , 2020 (“Effective Date”), is made by and between and the CITY OF ORLANDO, FLORIDA, a Florida municipal corporation, hereinafter referred to as the “City” and_______________, hereinafter referred to as “Artist”. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties agree as follows: W I T N E S S E T H: WHEREAS, the City issued an initial Call for Artists on ___________, 2020, and subsequent Final Submittal Instructions issued to finalists on ____________, copies of which are attached Exhibit “A” (collectively the “Call for Artists”), seeking an artist to create 3-dimensional artwork for a site generally located south of Colonial Drive, north of Concord Street, east of Garland Avenue and I-4, and west of the CSX railway corridor as more particularly shown on Exhibit “B” (“Site”); and WHEREAS, Artist was selected pursuant to the Call for Artists and as a result of such selection, the City and Artist now desire to enter into this Agreement for the Artist to create 3-dimensional artwork for the Site (“Artwork”) and provide related art services upon the terms and conditions more fully set forth below; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and given one to the other, the sufficiency of which is hereby acknowledged, the parties agree as follows: I. SCOPE Upon execution of this Agreement, Artist will commence creation of the Artwork as set forth in Artist’s Proposal to the City (“Proposal”), attached hereto as Exhibit “C” to be installed on the Site shown on Exhibit “B”. Except as otherwise specified in this Agreement, the Artist shall create the Artwork, and perform all other work set forth in this Agreement in accordance with Artist’s Proposal to the City (collectively the Artwork and other work referred to hereinafter as the “Work”). No changes to the Work, including any design changes to the proposed Artwork, from that set forth in the Artist’s Proposal shall be made without the prior written consent of the City’s project manager, Mary-Stewart Droege, or her designee (hereinafter the “City’s Project Manager”). Prior to commencing Work, Artist shall present final Artwork deign to the City’s Project Manager for written approval. All equipment and materials necessary to create the Artwork and perform the Work shall be provided by the Artist, and such materials shall be subject to the prior written approval by the City’s Project Manager before use. All scrap or waste materials shall be properly disposed of and shall not be dumped upon the ground or into the City’s storm water system. Artist shall not allow any persons to assist with the creation of the Artwork, or to perform any of the Work, without such persons having executed and delivered to the City a Release and Hold Harmless Agreement in the form attached hereto as Exhibit “D”, incorporated herein by this reference. Artist and any persons assisting with the Work shall also comply with any and all other rules, regulations, and directions from the City Project Manager related to the use or occupancy of the Site or other City property. The City Project Manager shall have right to remove any person, or order any person to cease and desist any activity, which is in violation of these or other City rules and regulations, or which in their determination is, or could be, a danger to the health, safety, or welfare of any person or may cause damage to property. Under no circumstances shall Artist or any person working with Artist enter into or place any equipment on property owned by the Florida Department of Transportation (“FDOT”), or over which FDOT holds an easement, or within the rail corridor adjacent to the Site upon which the Work is to be performed as depicted on Exhibit “B” attached hereto and incorporated herein by this reference, without the prior written approval of the City (and the FDOT, if required). At the request of CRA or City, Artist shall meet with FDOT and/or its representatives to discuss the Work, including but not limited to for purposes of discussing any issues or procedures related to working adjacent to the rail corridor. II. ORDER OF PRECEDENCE For the resolution and interpretation of any inconsistencies in this Agreement and/or the documents attached hereto and included herein by this reference, the precedence of these documents shall be given in the following order: 1. This Agreement with any Attachments, including Exhibits, Addendums(s) and Amendment(s) hereto, but excluding Exhibit “A” (Call for Artists) and Exhibit “C” (Artist’s Proposal); 2. If applicable, negotiated amendments or clarification to the Contractor’s Proposal which have been incorporated by reference into the final Contract; 3. CRA’s Call for Artists (Exhibit “A”); and 4. Artist’s Proposal (Exhibit “C”) III. TERM OF CONTRACT The Agreement shall commence as of the Effective Date. All Work shall be completed no later than May 28, 2021. Notwithstanding the preceding, upon the written request of Artist, the City’s Project Manager may grant written extensions of time to complete the Work, as she deems appropriate in her discretion. IV. COMPENSATION Artist agrees to create the Artwork, and perform all Work and provide all services and materials set forth in this Agreement, for the total fee of _____________________ ($________) (“Fee”), inclusive of all fees, costs and expenses, including but not limited to all artwork, creation, design, fabrication, materials, installation, painting, travel, public presentations, meetings with staff as requested, and all other related costs and fees. V. PAYMENT Unless otherwise mutually agreed in writing by the Artist and City’s Project Manager, Payment shall be made to Artist by the City in two installments, with the first payment of ____________________ Thousand Dollars ($_____,000.00) payable by the City within forty-five (45) days after execution hereof and invoice by the Artist, and the second payment of ___________ Thousand Dollars ($______,000.00) payable within forty five (45) days upon invoice after completion of all work pursuant to this Agreement and the acceptance thereof by the City’s Project Manager. All invoices shall be directed to the Accounts Payable Section, City of Orlando, 400 South Orange Avenue, Orlando, Florida, 32801-3302. NOTE: ALL INVOICES MUST CLEARLY INDICATE THE CITY CONTRACT NUMBER AS STATED HEREIN. VI. GENERAL CONDITIONS A. Patents and Copyrights 1. Artist shall pay all royalties and assume all costs arising from the use of any invention, design, process, materials, equipment, product or device in performance of the Work, which is the subject of patent rights or copyrights. Artist shall, at its own expense, hold harmless and defend the City against any claim, suit or proceeding brought against the City which is based upon a claim, whether rightful or otherwise, that the Work, or any part thereof, furnished under this Agreement, constitutes an infringement or dilution of any patent, trademark, or copyright of the United States, or that the Work infringes any right of publicity or privacy. Artist shall pay all damages and costs awarded against the City. 2. The parties agree that the City is and will be the sole and exclusive owner of all right, title, and interest to the Work, including any copyrights and other intellectual property rights therein, in perpetuity throughout the universe. In furtherance of the foregoing, Artist agrees that the Work is a work made for hire for the City as defined in Section 101 of the Copyright Act of 1976. To the extent that the Work does not qualify as a work made for hire, the parties agree that upon completion of the Work, all right, title, and interest including copyrights that Artist may have in and to the Work and Proposal shall hereby transfer, assign over, and belong solely and exclusively to the City, except that upon transfer Artist shall retain the non-exclusive rights to identify herself/himself as the creator of the Work, and to use images and depictions of the Work as representative samples of her/his work. Such transfer to the City is for all uses now existing, or which may exist in the future, including but not limited to the use of the Work for urban beautification, economic development, the promotion of downtown Orlando, and any other uses or purposes benefiting the City. The City shall own such materials and all trademarks and copyrights related thereto, including all renewals and extensions. The City shall have the right to obtain trademark and copyright registrations for such materials in its own name or in any name chosen by the City, and the City shall own all rights of copyright in the materials, as well as in any derivative works and reproductions made there from. Artist shall execute such documentation that the City may reasonably request to cause or evidence any such transfer of ownership of the materials. The City shall have the right to use, photograph, depict, copyright photographs and depictions, submit for award, publish, distribute, and publicly display the Work and to create, use, copy, reproduce, publish, distribute, and display derivative or other works based on the Work worldwide in all forms of media now known or later developed, including but not limited to Web sites, advertising, media campaigns, direct mail, and educational presentations. The City hereby has permission to identify the Artist by name and use Artist’s image in connection with such use of the Work. The City also has the right to photograph and/or otherwise visually record (including but not limited to film, videotape, or other form of motion capture) Artist in relation to the creation of the Work and use such images in connection with the Work and other City (and its affiliated entities) activities. Artist understands that the Work will be utilized in connection with outdoor space, some or all of which may be open to the public, and as such will be subject to wear and tear and other degradation over time. The City retain the unencumbered right at all times to repair, repaint, paint over, refinish, reconstruct, close, cover, remove and replace all, none, or portions of the Work as it deems appropriate in its sole discretion, which may result in the destruction, in part or in whole, of the Work. Such rights include, but are not limited to, the right to add information and design elements including but not limited to logos used by the City and the City seal. The above-described work may be considered a “work of visual art” under the Visual Artists Rights Act of 1990 (17 U.S. Code § 106A). Artist hereby voluntarily, expressly, permanently, and irrevocably waives all rights, including but not limited to the rights of attribution and integrity, and remedies with respect to the Work identified above, and any alterations thereof, under the Visual Artists Rights Act of 1990, 17 U.S.C. §§106A and 113 and under any other federal, state, local, or foreign laws relating to the rights of artists. This section shall survive termination of the Agreement. 3. Artist represents that all Work that Artist will produce is original, is Artist’s alone (or produced solely in conjunction with other persons or entities who have signed a Release and Hold Harmless Agreement in form and content as attached as Exhibit “D”, will not infringe upon any copyright, trademark, or right of publicity or privacy, and that Artist has full authority to make the agreements and representations contained herein. B. Termination for Default The performance of Work under this Agreement may be terminated by the City, in whole or in part, in writing, whenever the City shall determine that Artist has failed to perform the Work within the time specified in the Agreement, or if Artist fails to perform any other provisions of the Agreement. C. Termination for Convenience The City may terminate the Agreement on behalf of the City for convenience with advance written notice to Artist. In the event of such a termination by the City, the City shall be liable for the payment of all Work properly performed prior to the effective date of termination, not to exceed the amount of the Fee set forth in Section V above, inclusive of all fees, costs, and expenses for performing the Work, including but not limited to all artwork, design, creation, fabrication, materials, installation, travel, public presentation, meetings with staff as requested, and all other related costs, fees, and expenses. D. Limited Warranty Artist warrants that the Work shall conform to the Proposal, and be free from all faults, defects or errors. If Artist is notified in writing of a fault, deficiency or error in the Work provided within one (1) year from completion of the Work, Artist shall, at the City's option, either re-perform such portions of the Work to correct such fault, defect or error, at no additional cost to the City, or refund to the City, the charge paid by the City, which is attributable to such portions of the faulty, defective or erroneous Work, including the costs for re-performance of the Work provided by entities other than Artist. E. Time of Completion The parties understand and agree that time is of the essence in the performance of this Agreement. Artist acknowledges and agrees that the City’s funding is from a third party and is contingent upon timely completion and installation. Accordingly, completion and delivery of the Artwork to the City on or before May 28, 2021 is a material condition and requirement of this Agreement. Artist shall submit to the City’s Project Manager dated photos of progress on the Artwork every two weeks from the date of the execution of this Agreement through the completion, delivery, and installation of the Artwork. Artist shall not be excused from this completion or delivery date for any reason, whether within or outside the control of the Artist. In the event that the City’s funding source fails to provide funding and/or requires repayment of previously provided funding based upon the Artist’s failure to meet the May 28, 2021 deadline, such portion of the funding shall be deducted from the Fee to be paid to the Artist hereunder. F. Release, Hold Harmless, and Indemnification Artist acknowledges that performance of the Work involves certain risks and that injuries, death, property damage, or other harm could occur to Artist or others. Artist accepts and voluntarily incur all risks of any injuries, damages, or harm which arise during or result from performance of the Work, regardless of whether or not caused in whole or in part by the negligence or other fault of the FDOT or the City, and/or their employees, officers, or agents (collectively the FDOT, the City, and their employees, officers and agents hereinafter referred to as the "Released Parties"). Artist waives all claims against any of the Released Parties for any injuries, damages, losses or claims, whether known and unknown, which arise during or result from Artist’s performance of the Work, regardless of whether or not caused in whole or part by the negligence or other fault of any of the Released Parties and hereby releases and forever discharge the Released Parties from all such claims. Artist agrees to indemnify and hold the Released Parties harmless from and against all claims, demands, suits, proceedings, actions, losses, liabilities, damages, fees, fines, penalties, costs or expenses (including but not limited to reasonable attorneys' fees and other legal costs and expenses through and including all appeals) incurred by any of the Released Parties as a result of any claims or suits that Artist (or anyone claiming by, under or through Artist) may bring against any of the Released Parties to recover any losses, liabilities, costs, damages, or expenses which arise during or result from Artist’s performance of the Work, regardless of whether or not caused in whole or part by the negligence or other fault of any of the Released Parties. G. Insurance Prior to commencing and at all times during the performance of any Work under this Contract, Artist shall maintain the following insurance policies to cover claims, liability and damages arising from Artist’s and any of its agents’ activities on FDOT and City property: (i) Worker’s Compensation and Employer’s Liability Insurance at the statutory amount; and (ii) Commercial General Liability (“CGL”) Insurance with combined single limits of One Million Dollars ($1,000,000.00) per occurrence. The CRA, City, and FDOT shall be added as additional insureds to the CGL and such policy shall be considered primary insurance without recourse to or contribution from any similar insurance carried by the City or CRA. Within ten (10) days of execution of this Agreement, the Artist shall provide to the City a copy of the applicable CGL insurance certificate(s) prior to any person entering upon the City property related hereto. The Artist shall require their insurance carriers, with respect to all insurance policies, to waive all rights of subrogation against the City and CRA, and their officers, elected officials, agents and employees and against other contractors and subcontractors. H. Acceptance The City will be deemed to have accepted the Work upon the City’s Project Manager’s determination that the Work is satisfactorily completed. I. Correction of Work Prior to Acceptance, and throughout the Term of this Agreement, Artist shall promptly correct all Work rejected by the City as failing to conform to this Agreement, contingent upon receipt of written notice of each such defect and a reasonable opportunity to effect a cure of such defect(s). Artist shall bear all of its costs of correcting such rejected Work. J. Right to Audit Records The City shall be entitled to audit the books and records of Artist or any subcontractor to the extent that such books and records relate to the performance of the contract or any subcontract. Artist and its subcontractors shall retain and maintain financial records and other records relating to the contract for a period of five (5) years from the date of final payment under the Agreement and by the subcontractor for a period of five (5) years from the date of final payment under the subcontract unless a shorter period is otherwise authorized in writing by the City. If any litigation, claim, negotiation, audit or other action involving the records has been started before the expiration of the 5-year period, the records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the regular 5-year period, whichever is later. K. Extra Work The City, without invalidating this Agreement, may order changes in the Work within the general scope of this Agreement consisting of additions, deletions, or other revisions, the Agreement price and time being adjusted accordingly. All such changes in the Work ordered by the City shall be authorized by written Addendum to this Agreement and shall be executed under the applicable conditions of the Agreement. L. Familiarity With The Work Artist by executing this Agreement, acknowledges full understanding of the extent and character of the Work required and the conditions surrounding the performance thereof. The City will not be responsible for any alleged misunderstanding of the Work to be furnished or completed, or any misunderstanding of conditions surrounding the performance thereof. It is understood that the execution of this Agreement by Artist serves as its stated commitment to fulfill all the conditions referred to in this Agreement. M. Title and Risk of Loss The title and risk of loss to the Work shall pass from Artist to the City upon the City’s final acceptance of the Work. N. Notices. All notices required or permitted to be given under this Agreement must be in writing and must be delivered to a party at the addresses set forth below (or such other address as may hereafter be designated by such party in writing). The parties’ addresses for the delivery of all such notices are as follows: CITY: Mary-Stewart Droege Project Manager City of Orlando 400 South Orange Avenue, 6th Floor Orlando, Florida 32801 Phone: 407-246-3276 With a Copy to: Mary-Stewart Droege Project Manager City of Orlando 400 South Orange Avenue, 6th floor Orlando, Florida 32891 Phone: (407) 246-3276 Artist: _______________________ _______________________ _______________________ Notices shall be either: (1) personally delivered (including delivery by Federal Express or other courier service) to the addresses set forth above, in which case they shall be deemed delivered on the date of delivery; (2) sent by certified mail, return receipt requested, in which case they shall be deemed delivered on the date shown on the receipt unless delivery is refused or intentionally delayed by the addressee, in which event they shall be deemed delivered on the date of deposit in the U.S. Mail; or (3) transmitted via telecopier using a telecopier number provided above, if any (or such other number as receiving party may have designated in writing), in which case the delivery shall be deemed to have occurred on the day of the transmission, provided that the day of transmission is a business day in the City of Orlando, Florida, and the time of transmission is prior to 5:00 p.m. EST, or, if not, the first City business day after the transmission. VII. MISCELLANEOUS PROVISIONS A. Artist shall not employ subcontractors without the advance written permission of the City. B. Assignment of this Agreement shall not be made without the advance written consent of the City’s Project Manager. C. No waiver, alterations, consent or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by the City. D. Artist is to procure all permits, licenses, and certificates, or any such approvals of plans or specifications as may be required by federal, state and local laws, ordinances, rules, and regulations, for the proper execution and completion of the Work under this Agreement. E. This Agreement is a non exclusive Agreement between the parties. F. This Agreement is deemed to be under and shall be governed by, and construed according to, the laws of the State of Florida. G. Any litigation arising out of this Agreement shall be had in the Courts of Orange County, Florida. H. Artist shall comply with all applicable federal, state, and local laws in the performance of work under the contract. To the extent applicable, Artist shall comply with Florida public records laws, including Sections 119.0701(2) (b) 1 through 4 of the Florida Statutes. IF ARTIST HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO ARTIST’S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF THE PUBLIC RECORDS AT C/O DEPUTY CITY CLERK, RECORDS@CITYOFORLANDO.NET, PHONE NUMBER (407) 246-3538, 400 S. ORANGE AVE., ORLANDO, FL 32801. I. The undersigned hereby certifies that this Agreement is made without prior understanding, agreement or connection with any corporation, firm or person who submitted proposals for the Work covered by this Agreement and is in all respects fair and without collusion or fraud. As to Artist, the undersigned hereby warrants and certifies that they are authorized to enter into this Agreement and to execute same on behalf of Artist as the act of the said Artist. J. This Agreement, including any Exhibits hereto which are incorporated herein by this reference, contains all the terms and conditions agreed upon by the parties. No other agreements, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or to bind either party hereto. In the event of any dispute or conflict between the provisions of this Agreement and any Exhibit or attachment hereto, the terms of this Agreement shall control. K. The City’s __________________ or written designee shall have authority to act on behalf of the City in all matters related to this Agreement, including but not limited to the sending and receiving of any notices required hereunder. Such authority is independent of, and in addition to, any authority granted to other persons by name or title within this Agreement. L. If any section, sentence, clause, phrase, provision, or other portion of this Agreement is, for any reason, held invalid or unconstitutional by a court or other body of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions of the Agreement. M. This Agreement is solely for the benefit of the parties to the Agreement and no causes of action shall accrue upon or by reason hereof to or for the benefit of any third parties. ****************************************************************************** IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals on the date first written above. THE CITY OF ORLANDO, FLORIDA APPROVED AS TO FORM AND LEGALITY for the use and reliance of the City of Orlando, only. By: ____________________, City of Orlando Date: , 20__ __________________________________ Name, Typed or Printed ASSISTANT CITY ATTORNEY Date: , 20__ ORLANDO, FLORIDA ARTIST Print Name:______________________________________ STATE OF FLORIDA } COUNTY OF } The foregoing instrument was acknowledged before me by means of  physical presence or  online notarization, this _____ day of __________________, 20__, by ____________________________ (name of person acknowledging). Signature of Notary Public – State of Florida Print, Type, or Stamp Notary Name: ¬¬¬¬ (Affix Notary Stamp or Seal Above) ___ Personally Known or ___ Produced Identification Type of Identification Produced __________________________ EXHIBIT “A” CALL FOR ARTISTS EXHIBIT “B” SITE EXHIBIT “C” ARTIST’S PROPOSAL EXHIBIT “D” RELEASE AND HOLD HARMLESS AGREEMENT Release and Hold Harmless Agreement for I-4 Ultimate Artwork In consideration of being permitted by the City of Orlando (“City”) to work on and/or perform any other services in support of the Artist______________’s creation of 3-dimensional artwork to be located at _________________________________, Orlando, Florida, (hereinafter the “Artwork”) and other good and valuable consideration, I hereby agree as follows: 1) To indemnify and hold the City and its officials and employees harmless from and against any and all liability, claims, damages and demands, for any injury to myself or my property or any other damage or cause of action, which may arise in any way from my negligence or intentional misconduct related to the provision of services to the City, including but not limited to the creation of the Artwork, and any claim, whether rightful or otherwise, that the Artwork, or any part thereof, constitutes an infringement or dilution of any patent, trademark, or copyright of the United States, or that the Artwork infringes any right of publicity or privacy. 2) That the City is and will be the sole and exclusive owner of all right, title, and interest to the Artwork, including any copyrights and other intellectual property rights therein, in perpetuity throughout the universe. In furtherance of the foregoing, I further agree that the Artwork is a work made for hire for the City as defined in Section 101 of the Copyright Act of 1976. To the extent that the Artwork does not qualify as a work made for hire, upon completion of the Artwork, all right, title, and interest including copyrights that I may have in and to the Artwork shall hereby transfer, assign over, and belong solely and exclusively to the City, except that upon transfer I shall retain the non-exclusive rights to identify myself as the creator of the Artwork, as applicable, and to use images and depictions of the Artwork as representative samples of my Artwork. Such transfer to the City is for all uses now existing, or which may exist in the future, including but not limited to the use of the Artwork for urban beautification, economic development, the promotion of downtown Orlando, and any other uses or purposes benefiting the City. The City shall own such materials and all trademarks and copyrights related thereto, including all renewals and extensions. The City shall have the right to obtain trademark and copyright registrations for such materials in its own name or in any name chosen by City, and City shall own all rights of copyright in the materials, as well as in any derivative works and reproductions made there from. I shall execute such documentation that the City may reasonably request to cause or evidence any such transfer of ownership of the materials. The City shall have the right to use, photograph, depict, copyright photographs and depictions, publish, distribute, and publicly display the Artwork and to create, use, copy, reproduce, publish, distribute, and display derivative or other works based on the Artwork worldwide in all forms of media now known or later developed, including but not limited to Web sites, advertising, media campaigns, direct mail, and classroom presentations. The City hereby has permission to identify me by name and use my image in connection with such use of the Artwork. The City also has the right to photograph and/or videotape me in relation to the creation of the Artwork and use such images in connection with the Artwork and other City (and its affiliated entities) activities. I understand that the Artwork will be utilized in connection with an indoor office, restaurant, and commercial space, some or all of which may be open to the public, and as such will be subject to wear and tear and other degradation over time. The City retains the unencumbered right at all times to repair, repaint, refinish, reconstruct, close, cover, remove, and replace the wall or Artwork as it deems appropriate in its sole discretion, which may result in the destruction, in part or in whole, of the Artwork. Such rights include, but are not limited to, the right to add information and design elements including but not limited to City logos, phone numbers, and the City seal. 3) The above-described work may be considered a “work of visual art” under the Visual Artists Rights Act of 1990 (17 U.S. Code § 106A). I hereby voluntarily, expressly, permanently, and irrevocably waives all rights, including but not limited to the rights of attribution and integrity, and remedies with respect to the Artwork identified above, and any alterations thereof, under the Visual Artists Rights Act of 1990, 17 U.S.C. §§106A and 113 and under any other federal, state, local, or foreign laws relating to the rights of artists. 4) That the Artwork that I will paint or otherwise produce is original, is mine alone (or produced solely in conjunction with other persons who have signed a release and hold harmless in form and content identical to this release in favor of the City), will not infringe upon any copyright, trademark, or right of publicity or privacy, and that I have full authority to make the agreements and representations contained herein. Signature:_______________________________ Date:___________________________________ Print Name:______________________________ Address:________________________________ _________________________________ _________________________________ Phone Number:___________________________