ARTIST AGREEMENT STATE OF GEORGIA COUNTY OF FULTON THIS ARTIST AGREEMENT (“Agreement”), is made and entered into this __________ day of 2022, between ART SANDY SPRINGS, a Georgia nonprofit corporation (“ArtSS”), the CITY OF SANDY SPRINGS, a municipal corporation of the State of Georgia (“City”), and ______________________ (“Artist”) (individually, “Party” and, collectively, “Parties.”) WHEREAS, Artist desires to participate in an outdoor art project involving a competition for sculptures appropriate to open and green spaces in the City (“Competition”), produced by ArtSS and supported by the City; and WHEREAS, Artist desires to exhibit an outdoor sculpture of his or her own creation (“Artwork”) in the Competition; and WHEREAS, the Parties acknowledge the Artwork is intended to be installed in a City designated location (“Site”); and WHEREAS, the Parties desire to have the Artwork governed by the mutual obligations, covenants and conditions herein; NOW, THEREFORE, in consideration of the foregoing promises, the mutual covenants hereinafter set forth, and other valuable consideration, receipt of which is hereby acknowledged, the Parties agree as follows: I. SCOPE OF SERVICES. The Parties acknowledge that the Artwork shall be as described in Exhibit A attached hereto. The “Competition Schedule” is presented in Exhibit B attached hereto. The “Work” shall be deemed to refer to the final Artwork as installed at the site selected by the City. “Work Materials” shall be deemed to include the information described in Exhibit A, Exhibit B, and all plans, concept drawings, final renderings, permissions, approvals, engineering analyses and information, and all other deliverables associated with the Artwork and Artist’s services under this Agreement, whether finished or unfinished and whether or not included in the Work. ArtSS and the City shall each appoint a project director to serve as the contact point with one another regarding the project, and to make binding decisions on behalf of ArtSS and the City, respectively, in connection with the Competition, the Artwork and this Agreement. ArtSS's project director will serve as the primary contact point with Artist. As of the date hereof, ArtSS's project director is: Name: ____________________________________________ Telephone: ____________________________________________ E-mail Address: ____________________________________________ and the City's project director is: Name: Dave Wells, Deputy City Manager Telephone: (770) 730-5600 E-mail Address: dwells@sandyspringsga.gov ArtSS and the City may change their respective project directors upon notice to Artist and the other Party. II. SCHEDULE. Time is of the essence and the Parties agree to meet the Competition Schedule attached hereto as Exhibit B. III. INVOICE AND PAYMENT. If Artist is the winner of the Competition and the City acquires the Artwork, the City shall make payment to Artist within thirty (30) days of the last to occur of: (A) approval of Mayor and City Council; and (B) receipt of an invoice from Artist, in the form and containing such information as required by the City’s Finance Director. IV. DESIGN, FABRICATION/TRANSPORTATION/INSTALLATION A. Services. Artist shall provide the following goods and services: 1. General. Artist shall deliver the Artwork as approved by ArtSS and the City in accordance with the timeline established by ArtSS and the City. Artist shall provide reasonable assistance to ArtSS and the City in the installation of the Artwork and such reasonable post-installation services as may be needed. 2. Maintenance Requirements. Artist shall provide the City with clear written instructions for appropriate maintenance and preservation of the Work. 3. Structural Design Documents. If requested, Artist shall provide to ArtSS and the City an engineering analysis for the Work. The analysis shall include all information requested to ensure that the Artwork is safe for the public. 4. Related Expenses. If an engineering analysis is requested pursuant to paragraph 3 above, the Parties shall agree at such time as to financial responsibility for the cost and expense of such analysis. 5. Compliance with Local Regulations. ArtSS and the City reserve the right, but assume no duty or responsibility, to request Artist to make revisions to any aspect of the Artwork or Work Materials as are necessary for the Artwork to comply with applicable statutes, ordinances or regulations of any governmental regulatory agency having jurisdiction over the Artwork or the Site. Any revisions required by ArtSS or the City shall in no way release Artist from Artist’s duties, responsibilities or obligations under this Agreement. Neither ArtSS nor the City shall thereby assume, nor be deemed to have assumed, any duties, responsibilities or obligations of Artist. 6. Indemnification. Artist agrees to defend, indemnify, release and hold harmless the City and ArtSS from and against any and all losses, including claims, damages, liabilities, costs and expenses (including, but not limited to all actions, proceedings, or investigations in respect thereof and any costs of judgment, settlements, court costs, attorney’s fees or expense, regardless of the outcome of any such action, proceeding or investigation) arising out of the construction and design of the Work, the services of Artist hereunder, the nonperformance of Artist’s obligations under this Agreement, or for any claims or allegations asserting that the Artwork or any of the Work Materials infringe, misappropriate or violate the intellectual property, contract or other rights of a third party. This indemnification shall not extend to any loss, damage, injury, liability or claim which is a result of the active negligence or willful misconduct of the City without fault of Artist. 7. The Work. Artist shall be responsible for all supplies, materials and equipment as necessary for the Work’s creation, transportation, and delivery. 8. Delivery and Installation. a. Notification of Artwork Readiness for Transport. Artist shall notify ArtSS and the City in writing when the Artwork is ready for transport to the Site. ArtSS or the City may, at its option, inspect the Artwork prior to shipment. Such inspection, if performed, shall not relieve Artist of any obligations under this Agreement. b. Transport of the Work. Artist shall be fully responsible for transportation and shipment of the Work. Artist will coordinate with ArtSS and the City and shall transport the Artwork to the Site or such other reasonable location as shall be designated by the City. Should the selected Site(s) not be ready to accommodate installation in accordance with the timeline established by the Proposal, upon safe delivery of the Artwork to the Site or designated location, the City shall be responsible for the unloading and storage of the Artwork at its own cost. In such event, Artist shall provide reasonable assistance to the City regarding the unloading and storage of the Artwork as requested. c. Acceptance of the Work. Formal acceptance of the Artwork by ArtSS and the City shall occur in accordance with the definition of “acceptance” set forth on the attached Exhibit C. d. Installation. Subject to Artist’s installation obligations as set forth in this Agreement, the Artwork shall be installed by the City in accordance with the technical requirements of the call for entry for the Competition. Artist shall be present at the installation of the Artwork and at the de-installation of the Work. B. Identification of Installation Site. Artist acknowledges that decisions concerning the installation site of the Artwork will be made by the City. Artist acknowledges that the City, by its ownership of the Site, shall have the right to remove or relocate the Work. C. Publicity. Artist gives to ArtSS and the City his or her permission to use his or her name, picture, portrait, likeness, voice, and photographs, if any, in all forms of media and in all manner, including, but not limited to, exhibition, display, advertising, trade and editorial uses, without any violation of rights of privacy or any other personal or proprietary rights he or she may possess, for use in connection with the Artwork and publicity in connection therewith. D. Post-Installation. 1. Publicity Event. If such an event is held, Artist will be invited to attend and to participate in a dedication ceremony on a date or dates to be determined by ArtSS and the City. 2. Signature. The name or signature of Artist shall be included on the Work. A proper copyright notice shall be visibly displayed in the manner and location as to give reasonable notice of the ownership of the copyright by Artist. V. DELAY IN INSTALLATION. In the event construction or other events affecting the Site preclude installation of the Artwork at the Site on the date specified in the Competition Schedule: A. ArtSS or the City shall promptly give written notice to Artist of the situation. B. ArtSS, the City and Artist shall re-examine the Competition Schedule and revise as necessary. No additional costs shall be paid due to delays in installation. VI. REPRESENTATIONS AND WARRANTIES A. Warranties of Quality and Condition. Artist represents and warrants that the Artwork and all services in connection therewith will be performed in a workmanlike manner; that the Work, as fabricated and installed, will be free of defects in material and workmanship, including any defect or qualities which cause or accelerate deterioration of the Work; and reasonable maintenance of the Artwork will not require procedures substantially in excess of those described in the maintenance recommendation submitted by Artist. B. Original Creation. Artist further represents and warrants that: 1. The Artwork shall be the original creation of Artist and is solely the result of the artistic effort of Artist; 2. The Artwork is unique and original and does not infringe, misappropriate or violate the copyrights, trademarks, trade dress, patents, trade secrets or other intellectual property, contract or other rights of a third party; 4. The Artwork has not been accepted for sale elsewhere; and 5. The Artwork and all copyrights thereto are the sole property of Artist and are free and clear from any liens, claims or licenses from any source whatsoever. C. No Hazardous Materials. Artist shall not cause or permit any hazardous material (as defined below) to be used or incorporated within the Artwork without notice and specific written consent of ArtSS and City. The term “hazardous material” includes without limitation any material or substance designated as a “hazardous substance” pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C.§1317) or pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9061). VII. RISK OF LOSS. In conjunction with City and Artist, ArtSS shall establish an agreed upon value for each Artwork to be exhibited in the Competition for insurance purposes. The Artwork will be insured by City upon installation, in the presence of Artist, and while it is located on City property during the term of the Competition up until the time it is de-installed, in the presence of Artist. City shall not be responsible for any damage to or loss of the Artwork before it is installed at the selected Site or after it is de-installed unless the loss or damage is caused by an act of City. Artist agrees that its sole remedy against the City is reimbursement via insurance proceeds or monies in an amount not to exceed the value placed on said item for sale and that the City or its agents, employees, and officials are not liable for any indirect, incidental or consequential damages. VIII. COPYRIGHTS, TITLE, PERMITTED USES AND CREDITS A. Copyrights - Prior to and During Competition. Artist retains all copyrights in the Artwork and Work Materials and does not assign such rights to ArtSS or City; provided, however, that City will ultimately own title to and have possession of the physical Artwork and Work Materials if Artist’s Artwork is selected for acquisition by the City. In view of the intention that the Artwork shall be unique, Artist, notwithstanding his or her continuing ownership of the copyrights in the Artwork, has not and shall not make any duplications or reproductions of the Artwork or substantially derivative works thereof before or while the Artwork is exhibited in the Competition, nor shall Artist grant permission to others to do so, except with the written permission of ArtSS and City, which may be given or withheld in their sole discretion. Throughout the time the Artwork is exhibited in the Competition, Artist shall grant, and hereby does grant, to ArtSS and City an irrevocable, exclusive license to use copies, images, adaptations, and the likenesses of the Artwork for commercial or fundraising uses. ArtSS and City shall also have the unfettered right to publicize the Artwork or the Site (including the Artwork) in any media or format. B. Copyrights - Upon Acquisition of Artwork by City. Artist retains all copyrights in the Artwork and Work Materials and does not assign such rights to ArtSS or City. In view of the intention that the Artwork shall be unique, Artist, notwithstanding his or her continuing ownership of the copyrights in the Artwork, has not and shall not make any duplications or reproductions of the Artwork or substantially derivative works thereof at any time, nor shall Artist grant permission to others to do so, except with the written permission of ArtSS and City, which may be given or withheld in their sole discretion. Artist shall grant, and hereby does grant, to ArtSS and City an irrevocable, exclusive license to use copies, images, adaptations, and the likenesses of the Artwork for commercial or fundraising uses. ArtSS and City shall also have the unfettered right to publicize the Artwork or the Site (including the Artwork) in any media or format. C. Registration of Copyrights. If the Artist’s Artwork is acquired by the City, and if requested by the City, Artist shall be responsible for registering, and will register, the copyright for the Artwork with the U.S. Copyright Office, and will provide ArtSS and City with a copy of the application for registration, the registration number and the effective date of the registration. Artist shall be responsible for enforcing the copyright; provided, however, that if an infringement situation arises and Artist is unwilling or unable to take enforcement action after reasonable request by ArtSS or City, ArtSS and City shall each have the right to take such enforcement action in their capacities as the exclusive licensees of the copyrights in the Artwork. D. Documents. Submission or distribution of documents to meet any official regulatory requirements or for similar purposes in connection with the installation of the Artwork on the Site shall not be construed as publication in derogation of the copyright in the Artwork or any Party’s reserved rights. E. Copyright Notice. All copies, reproductions or derivative works of the Artwork shall contain an appropriate copyright notice identifying the copyright owner and the date of the original publication. F. Publication. No publication of the Artwork or Work Materials shall be made by any Party prior to the acquisition of the Artwork by the City as delineated herein, and ArtSS and City publish the Artwork to the public; provided, however, City and ArtSS shall be allowed to promote the Artwork in conjunction with the Competition. G. Title. Title to the physical Artwork and Work Materials shall transfer to City upon acquisition of the Artwork by City, and payment in full to Artist. Artist shall effect transfer of such title by executing and delivering transfer documents, confirmation of transfer or other written instruments as City may supply and reasonably request. H. Permitted Uses. Artist agrees that, after acquisition of the Artwork by City, Artist will not reproduce, distribute, publish or otherwise use the Artwork or Work Materials in any manner, except that Artist may: 1. Include photographs, drawings, web images, or other similar images of the Artwork in Artist's portfolio of artwork for purposes of demonstrating Artist's work; and 2. Use photographs, drawings, web images, or similar images of the Artwork for educational purposes. The foregoing permitted uses of the Artwork shall not include any right to exploit commercially any copies, reproductions, public displays, sales or derivatives of the Artwork of any kind or in any manner, except two-dimensional photographs in Artist’s catalog or for biographical purposes. I. Credit. 1. Artist shall give credit to ArtSS, City, and other organizations deemed appropriate by ArtSS and City in any publication or public display of any photographs of the Artwork. The credit shall also include an appropriate copyright notice. 2. All copies, reproductions or derivatives of the Artwork created by ArtSS or City shall contain a credit to Artist. J. Addresses and Assigns. Artist shall notify ArtSS and City of changes in Artist's address. K. Surviving Covenants. To the extent allowable by law, covenants and obligations set forth in this Section VIII shall be binding upon the Parties, their heirs, legatees, executors, administrators, assigns, transferees and all their successors in interest, and ArtSS and City covenants do attach and run with the Artwork and shall be binding to and until twenty (20) years after the death of Artist. ArtSS and City shall give any subsequent owner of the Artwork notice in writing of the covenants herein, and shall cause each owner to be bound thereby. L. Additional Rights and Remedies. Nothing contained in this Section VIII shall be construed as a limitation on the other rights and remedies available to the Parties under the law which may now or in the future be applicable. M. Certain Approval and Related Rights. ArtSS and City agree to comply with certain restrictions with respect to the Artwork, as follows: 1. Alterations to the Artwork. a. ArtSS and City agree that they shall not (and shall not license others to), without the express, advance written consent of Artist, which may be given or withheld in Artist’s sole discretion, make any alteration to the Artwork that would result in the Artwork’s mutilation, distortion, or modification to the extent that Artist’s reputation would be harmed or prejudiced thereby. b. Artist agrees, however, that City shall have the unfettered right, in its sole discretion, without notice to, approval of, or consultation with Artist, to (i) relocate the Artwork to another site or location, (ii) discontinue any required maintenance, if any, of the Artwork, (iii) disassemble and remove the Artwork in its entirety, or (iv) alter the Artwork in connection with emergency and/or public safety considerations. City shall also retain the separate unfettered right in its sole discretion to make temporary changes to the Artwork in connection with infrastructure and related projects, such as, for example, but without limitation, underground sewer work, subway construction, maintenance and the like, with the understanding that the Artwork will be returned to its original form after any such temporary changes. Artist acknowledges and agrees: (i) that City must retain the freedoms set forth in this Section with respect to the Artwork for public policy, municipal planning, public safety, environmental, budgetary and related reasons, (ii) that City’s retention of such freedoms is reasonable under the circumstances. c. For all other proposed alterations to the Artwork, ArtSS and City agree that they will not make any material alteration or change to the Artwork in a manner that would affect the Artwork’s intended character or appearance unless and until Artist has been provided notice of such proposed alteration and, if requested by Artist following such notice, the opportunity to provide reasonable input in an effort to accommodate any aesthetic or other concerns of Artist with respect to any such proposed alteration. 2. Waiver of Visual Artists Rights Act of 1990, 17 USC Section 106A. Subject to the foregoing limitations, Artist hereby waives any rights he or she may have regarding the Visual Artists Rights Act. IX. ASSIGNMENT TRANSFER, SUBCONTRACTING A. Assignment or Transfer of Interest. Neither ArtSS, City nor Artist shall assign or transfer any interest in this Agreement without the prior written consent of the other Parties. B. Subcontracting by Artist. Artist agrees that an essential element of this Agreement is the skill and creativeness of Artist. Artist therefore shall not assign its obligations under this Agreement. Failure to conform to this provision will result in termination of this Agreement. X. TERMINATION A. ArtSS and City shall have the right to terminate this Agreement in the event of a breach by Artist of any of the terms and conditions of this Agreement or the Competition. B. ArtSS and City shall have the right to terminate this Agreement in the event illness or events beyond Artist's control prevent Artist from meeting the dates established in the Competition Schedule. C. The exercise of a right of termination under this Section X shall be written and shall set forth the grounds for termination delivered via certified mail. D. ArtSS and City may terminate this Agreement for convenience at any time upon written notice to Artist. XI. NOTICES. Any notice or communication required or permitted to be given pursuant to this Agreement shall be given in writing and (i) personally delivered, or (ii) sent by a commercially respected overnight courier such as Federal Express, or (iii) sent by certified mail, return receipt requested, postage prepaid, or (iv) transmitted by electronic mail transmission, to the Party to whom such notice or communication is directed, to the mailing address or regularly-monitored electronic mail address of such Party as follows: A. If to ArtSS: ____________________________________________ ____________________________________________ ____________________________________________ E-mail: _____________________@______________ B. If to Artist: ____________________________________________ ____________________________________________ ____________________________________________ E-mail: _____________________@______________ C. If to City: Eden Freeman, City Manager City of Sandy Springs 1 Galambos Way Sandy Springs, Georgia 30328 efreeman@sandyspringsga.gov With copy to: Dave Wells, Deputy City Manager City of Sandy Springs 1 Galambos Way Sandy Springs, Georgia 30328 dwells@sandyspringsga.gov XII. MODIFICATION. No alteration, amendment, change, supplement or modification of the terms of this Agreement shall be valid unless made in writing and signed by all Parties hereto. XIII. GOVERNING LAW. The Parties hereto agree that the validity and interpretation of the provisions hereof, and all rights and obligations arising hereunder shall be construed, interpreted, and governed, controlled and defined by and under the laws of the State of Georgia. XIV. OTHER A. Entire Agreement. This Agreement constitutes the entire Agreement between the Parties relating to the subject matter contained herein and it supersedes all prior and contemporaneous representations, oral or written agreements or understandings between the Parties respecting its subject matter. B. Riders and Attachments. All Exhibits, attachments, riders and addenda referred to in this Agreement or incorporated in this Agreement are made a part hereof for all intents and purposes by specific reference thereto. C. Waiver. No consent or waiver, express or implied, of any one provision of this Agreement shall constitute a waiver of any other provision, nor shall any one waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party against whom the waiver is asserted. D. Interpretation. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and shall in no way be impaired. E. Remedies/Venue. All Parties agree that any dispute arising under this Agreement will be referred to mediation by a mediator acceptable to all Parties; and if no resolution of the dispute can be reached in mediation, the Parties may file suit in the Courts of Fulton County, Georgia. F. Cooperation. The Parties agree to cooperate with one another in the prosecution of any claim that a third party has infringed or misappropriated any copyright, trade secret or other property right which they may now or hereafter have in the Artwork. That cooperation shall consist only of voluntary disclosure of information not protected by the attorney-client privilege in the possession of one Party which may be of assistance to another Party in prosecuting any said claim of infringement or misappropriation; provided that no Party shall be obligated to take any action which would constitute a breach of any other contract to which they are a Party or subject them to any liability in the opinion of their legal counsel. G. Counterparts. This Agreement may be executed in two (2) or more counterparts each of which shall constitute an original Agreement as against the Party who had signed it, but which in the aggregate shall constitute one and the same instrument. H. Other Documentation. Artist shall additionally provide completed and executed copies of such other documents as may be requested by the City or ArtSS in connection with the Competition. IN WITNESS WHEREOF, the Parties have signed this Agreement as of the date first set forth above. ARTIST ___________________________________ Artist’s Name (PRINT) ___________________________________ Artist’s Signature [SIGNATURES CONTINUED ON FOLLOWING PAGE]   ART SANDY SPRINGS, INC. By: ______________________________, Chairman [SIGNATURES CONTINUED ON FOLLOWING PAGE]   CITY OF SANDY SPRINGS By: Eden Freeman, City Manager   EXHIBIT A ARTWORK DESCRIPTION AND REQUIREMENTS Name of Artwork: Description of Artwork: Installation Requirements: Engineering Analysis (if requested): For the purposes of this Agreement, City’s installation obligations shall mean: (1) the responsibility for Site preparation, and (2) construction of appropriate footers/Site connections in conformity with the engineering provided by Artist. The Parties acknowledge that City requires at least sixty (60) days for Site preparation based on approved engineering drawings. Artist shall bear all other obligations of assembly of the Artwork at no cost to City. EXHIBIT B COMPETITION SCHEDULE Artist shall provide City with all required documentation and analysis necessary for Site preparation no later than ______________________, 20__. City shall provide a Site suitable for installation by Artist no later than ______________________, 20__. Artist shall deliver the Artwork to the Site no later than ______________________, 20__. EXHIBIT C DEFINITION OF ACCEPTANCE As used in this Agreement, “acceptance” of the Artwork shall be deemed to have occurred when: A. Artist has delivered the Artwork, compliant with all aspects of this Agreement, to the Site or such other Site as may be designated by City and has completed all on-Site assembly and/or installation requirements as required in this Agreement. B. Artist has provided City with clear written instructions for appropriate maintenance and preservation of the Artwork. C. Artist has delivered to City all Work Materials as required by this Agreement. D. City has provided Artist with a letter of written acceptance of the Artwork, which shall be delivered to Artist by City no later than thirty (30) days following the satisfactory completion of requirements A-C as set forth above.