AGREEMENT FOR LOAN AND TEMPORARY DISPLAY OF ARTWORK

Transcription

1 AGREEMENT FOR LOAN AND TEMPORARY DISPLAY OF ARTWORK THIS AGREEMENT FOR LOAN AND TEMPORARY DISPLAY OF ARTWORK ( AGREEMENT ) is made and entered into this TH day of, 2014 by and between (the ARTIST ) whose address is and the CITY OF SAFETY HARBOR, FLORIDA, a municipal corporation of the State of Florida, whose address is 750 Main Street, Safety Harbor, Florida (the CITY ). WITNESSETH: WHEREAS, the ARTIST is the sole owner and creator of that certain artwork valued and described more fully in Exhibit A attached hereto and made a part hereof (the ARTWORK ); and WHEREAS, the CITY wishes to display the ARTWORK temporarily at a location to be determined by the CITY at Mullet Creek Park in Safety Harbor, Florida (the SITE ); and WHEREAS, the ARTIST wishes to temporarily loan the ARTWORK to the CITY for display at the SITE. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, parties agree as follows: 1. RECITALS 1.1 The foregoing recitals are incorporated into and made a part of this AGREEMENT and the parties acknowledge and agree that such recitals are true and correct. 2. SCOPE AND TERM 2.1 This AGREEMENT shall commence upon the date first above written and shall terminate upon transportation of the ARTWORK from the SITE by the ARTIST. 2.2 ARTIST hereby agrees to loan the ARTWORK to the CITY for temporarily display at the SITE for a period of twelve (12) months from the date of installation ( DISPLAY PERIOD ), pursuant to the following schedule unless altered by written agreement of the parties: The ARTWORK shall be delivered by the ARTIST to the SITE by Installation shall begin no later than _, and shall be completed with the ARTWORK on display by. Page 1 of DOC

2 2.2.3 The ARTWORK shall be removed by the ARTIST by, and shall be picked-up from and transported from the SITE by the ARTIST on the same day. 3. ARTIST RESPONSIBILITIES 3.1 The ARTIST, using the ARTIST S own or hired personnel and equipment is fully responsible for the costs and handling involved in the delivery of the ARTWORK to, and the pickup of the ARTWORK from the SITE. 3.2 The ARTIST hereby agrees to the installation and removal dates set forth above and that installation will occur during regular business hours unless specifically agreed to in writing by the CITY. In addition, the ARTIST is responsible for the oversight of the installation and removal of the ARTWORK. The ARTIST shall be available for presentations, interviews, and ceremonies at the CITY s request on and around the date of installation and/or removal. 3.3 The ARTIST shall provide the following to the CITY prior to installation: A condition report of the ARTWORK which shall include the condition of the ARTWORK and other details as may be reasonably warranted Structural drawings detailing the ARTWORK and its integration to a display base, including recommended instructions for installation and removal A description of all parts and materials utilized in the ARTWORK and the recommended care, cleaning, and maintenance instructions. CITY approval of such recommendations is a condition precedent to the CITY s responsibility set forth in Section 4.6 below Certificates of Insurance evidencing the required insurance set forth in Section The ARTIST shall be available for consultation with the CITY on maintenance and repair of the ARTWORK. 3.5 The ARTIST shall comply with all city, county, state and federal regulations, laws, and ordinances that in any way bear on its performance under this AGREEMENT. 3.6 The ARTIST shall modify the ARTWORK, if necessary, to effect installation and/or removal by the CITY. Page 2 of DOC

3 4. CITY RESPONSIBILITIES 4.1 The CITY will solely determine the specific location for the exhibition of the ARTWORK on the SITE and will provide the ARTIST with information and relevant data requested by the ARTIST and is needed and in order for the ARTIST to perform under this AGREEMENT. 4.2 The CITY will prepare the SITE for installation in accordance with the structural drawings provided by the ARTIST pursuant to Section above. 4.3 Under supervision of the ARTIST, the CITY or the CITY s agents will install and remove the ARTWORK. 4.4 The CITY will be responsible for compliance with all applicable laws and regulations related to its performance under this AGREEMENT and will be responsible for providing or acquiring any permits necessary for the installation and removal of the ARTWORK. 4.5 The CITY will provide and install an identification plaque next to the ARTWORK, prepared and designed by the CITY, containing a credit to the ARTIST. 4.6 The CITY will maintain the ARTWORK to the extent possible in accordance with the recommended cleaning, care, and maintenance instructions provided by the ARTIST pursuant to Section above. In the event the ARTWORK is in need of repair or restoration, the CITY shall notify the ARTIST in writing and the ARTIST shall have the right of first refusal to make or supervise such repairs or restorations. Such right must be exercised by responding to the CITY within ten (10) days from the date of such notice indicating that the ARTIST wishes to make or supervise the repairs or restorations. In the event the ARTIST does not respond within the time set forth in this Section, the CITY may cause such repairs or restorations to be effectuated in its sole discretion, or it may request that the ARTIST remove the ARTWORK and terminate this AGREEMENT. 4.7 The CITY will not intentionally alter, modify or change the ARTWORK. 5. EXHIBITION FEE 5.1 The CITY will pay the ARTIST a $500 fee as consideration for the services and performance of the ARTIST hereunder ( Exhibition Fee ). The Exhibition Fee shall be paid as follows: Initial payment: $300 As a condition precedent to the initial payment, the ARTIST shall have completed the following: Page 3 of DOC

4 transportation of the ARTWORK to the SITE, supervision of the installation of the ARTWORK, appearance at all publicity and information sessions as requested by the CITY, and submittal of the initial invoice by the ARTIST to the CITY Final payment: $200. As a condition precedent to the final payment, the ARTIST shall have completed the following: supervision of removal of the ARTWORK, pick-up/transportation of the ARTWORK from the SITE upon removal, appearance at all publicity and information sessions as requested by the CITY, and submittal of the final invoice by the ARTIST to the CITY. 5.2 Payment shall be remitted by the CITY in accordance with the terms of the Florida Prompt Payment Act. 6. DISPLAY OF ARTWORK, BARRIER AND SIGNAGE: 6.1 DISPLAY OF ARTWORK: During the DISPLAY PERIOD, the CITY shall make the ARTWORK available for viewing at the SITE by the public. The CITY shall not charge any admission fee or similar fee as a condition of viewing the ARTWORK. 6.2 BARRIER AND SIGNAGE: The CITY may install a physical barrier as the CITY, in its sole discretion, deems appropriate in an attempt to prevent unauthorized persons from touching or damaging the ARTWORK; provided, however, that the CITY does not represent, warrant, or guarantee that unauthorized touching or damage of the ARTWORK will not occur. Additionally, the CITY may post signage as the CITY, in its sole discretion, determines to be appropriate, including signage indicating that touching or damaging the ARTWORK is prohibited. 7. RISK OF LOSS 7.1 The ARTIST shall bear all risk of loss or damage to the ARTWORK including, but not limited to, theft, vandalism or any other act by a third party, and damage caused by acts of god, war, or natural conditions/disasters including, but not limited to, floods, hurricanes, tornadoes, lightning, and any loss occurring during the storage, display transportation, delivery, installation, and removal of the ARTWORK, regardless of where such loss occurs, including all responsibility and risk for any deterioration or weathering caused to the ARTWORK. 8. INSURANCE: Page 4 of DOC

5 8.1 REQUIRED INSURANCE: The ARTIST shall maintain the following insurance policies for the entire term of this AGREEMENT at its sole cost and expense: Worker s Compensation and Employer s Liability Insurance: If the ARTIST has employees, the ARTIST shall procure and maintain statutory Worker s Compensation Insurance and Employer s Liability Insurance with limits of no less than $300,000 per occurrence and provide a waiver of subrogation to the CITY. If the ARTIST has no employees as defined by Florida law, the ARTIST shall submit a letter stating it is exempt from this requirement and such letter shall be attached, incorporated into, and become a part of this AGREEMENT General Liability Insurance: The ARTIST shall procure and maintain General Liability Insurance, with limits of not less than $500,000 for per occurrence, Combined Single Limit for Bodily Injury and Property Damage, including Contractual Liability, Personal Injury, Products and Completed Operations. The ARTIST shall obtain and provide the CITY proof of such insurance prior to transportation of the ARTWORK to the SITE Automobile Liability Insurance: The ARTIST shall purchase and maintain Automobile Liability Insurance with limits of $500,000 including coverage for owned, non-owned, and hired vehicles as applicable. Such coverage shall remain in force for those times in which a vehicle is used for transportation, installation, modification, repair of the ARTWORK. 8.2 RENEWAL OF INSURANCE: If any insurance policy is due to expire during the period of installation, the ARTIST shall provide a certificate of renewal evidencing the required insurance coverage to the CITY not less than fifteen (15) days prior to the expiration date. 9. INDEMNIFICATION AND NOTICE: 9.1 The ARTIST hereby agrees to assume liability for and indemnify, hold harmless, and defend the CITY, its commissioners, mayor, officers, employees, agents, and attorneys of, from, and against all liability and expense, including reasonable attorneys fees, in connection with any and all claims, demands, damages, actions, causes of action, and suits in equity of whatever kind or nature, including claims for personal injury, property damage, infringement of any kind, equitable relief, or loss of use, arising out of the execution, performance, nonperformance, or enforcement of this AGREEMENT whether or not due to or caused by the negligence of the CITY, its commissioners, mayor, officers, employees, agents, and attorneys excluding only the sole negligence of the CITY, its commissioners, mayor, Page 5 of DOC

6 officers, employees, agents, and attorneys. This includes claims made by the employees of the Contractor against the City and the Contractor hereby waives its entitlement, if any, to immunity under Section , Florida Statutes. The ARTIST s liability hereunder shall include all attorney s fees and costs incurred by the CITY in the enforcement of this indemnification provision. The CITY shall have the right, at its option, to participate in the defense of any third party claim, without relieving the ARTIST of any of its obligations hereunder. The obligations contained in this Section shall survive termination of this Agreement and shall not be limited by the amount of any insurance required to be obtained or maintained under this AGREEMENT. 9.2 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 with the other in the defense or investigation of any such claim arising out of or relating to the performance of this AGREEMENT. 9.3 Nothing contained herein shall be construed as a waiver of any immunity from or limitation of liability to which the City may be entitled pursuant to the doctrine of sovereign immunity or Section , Florida Statutes. 10. WARRANTIES OF TITLE, QUALITY, AND CONDITION: 10.1: The ARTIST represents and warrants that: The ARTWORK is solely the result of the artistic effort of the ARTIST; The ARTWORK is unique and original and does not infringe upon any protected patent, trademark, or copyright; The ARTWORK is solely owned by the ARTIST and is free and clear of any liens from any source whatsoever; The ARTIST has full authority to agree to all terms of and to enter into this AGREEMENT The ARTWORK and the materials used are not currently known to be harmful to public health and safety; The ARTWORK will not require care or maintenance in excess of those described in the maintenance recommendations submitted to the CITY by the ARTIST; All work has been and will be performed in accordance with professional workmanlike standards and free from defective or Page 6 of DOC

7 inferior materials and workmanship (including any defects consisting of inherent vice or qualities that cause or accelerate deterioration of the ARTWORK) for the duration of the DISPLAY PERIOD; The ARTWORK is made of durable materials and will withstand the usual weather and climate of the SITE; and The routine cleaning, care, and maintenance instructions provided to the CITY will maintain the ARTWORK within an acceptable standard for public display and that foreseeable exposure to the elements and general wear and tear will cause the ARTWORK to experience only minor repairable damages and will not cause the ARTWORK to fall below an acceptable standard for public display and the ARTWORK will not experience irreparable conditions including mold, rust, fracturing, staining, chipping, tearing, abrading, and peeling The representations and warranties contained in this Section shall survive the termination of this AGREEMENT, however terminated. 11. TITLE AND COPYRIGHT: 11.1 TITLE AND COPYRIGHT: The CITY recognizes and agrees that the title to the ARTWORK shall remain with the ARTIST, its successors or assigns. At no time shall title pass to the CITY as a result of this AGREEMENT. The ARTWORK shall remain the sole property of the ARTIST, its successors or assigns, including, but not limited to, copyrights under the Copyright Act of 1976, 17 U.S.C. 101 et. Seq.; as amended, or any and all rights provided for by the Visual Artists Rights Act of 1990 (Section 106A of the United States Copyright Act; as amended) unless otherwise granted by the ARTIST to any other party. All future decisions regarding the use and continued ownership of such property will be within the sole and unconditional discretion of the ARTIST, its successors or assigns REPRODUCTION RIGHTS: The ARTIST grants to the CITY and its assigns an irrevocable license to make two-dimensional reproductions of the ARTWORK for noncommercial purposes, including, but not limited to, reproduction used in brochures, media publicity, and exhibition catalogues or other similar publications All reproductions by the CITY shall contain a credit to the ARTIST and, if the ARTIST provides the CITY with proof of copyright of the ARTWORK, a copyright notice shall be included in substantially the following form: Copyright [ARTIST S name, date of publication]. Page 7 of DOC

8 If the CITY wishes to make a reproduction of the ARTWORK for commercial purposes, 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 The CITY is not responsible for any third party infringement of an ARTIST s copyright or ownership and is not responsible for protecting the intellectual property rights of the ARTIST The ARTIST shall not, during the performance of this AGREEMENT, disseminate publicity or news releases regarding the ARTWORK without prior written approval of the CITY. 12. DEFAULT AND TERMINATION: 12.1 TERMINATION: Force Majeure. Either party may terminate this AGREEMENT upon written notice where performance is rendered impossible as a result of a Force Majeure. For purposes of this AGREEMENT, Force Majeure shall be defined as a fire, flood, act of God, war, terrorism, riot, national emergency, sabotage, civil disturbance, strike, labor dispute, governmental act, law, ordinance, rule or regulation, or events which are not the fault or are beyond the control of the party Without cause. The CITY may terminate this AGREEMENT without cause upon thirty (30) days written notice to the ARTIST and the ARTIST shall remove the ARTWORK immediately upon receipt of such notice from the CITY. The CITY shall pay the ARTIST for services performed by the ARTIST consistent with the schedule set forth in Section 5 of this AGREEMENT through the date of termination Threat to public safety. The CITY may terminate this AGREEMENT immediately upon written notice to the ARTIST if the CITY determines, in its sole discretion, that the ARTWORK, or any condition or aspect related thereto, poses a threat to the best interest of the health, safety, and welfare of the citizens of the CITY. In the event this AGREEMENT is terminated pursuant to this Section, the ARTIST shall immediately remove and transport the ARTWORK from the SITE For cause. If either party to this AGREEMENT shall willfully or negligently fail to perform its obligations under this AGREEMENT, or otherwise violate any of the covenants, terms, agreements or stipulations of AGREEMENT, the other party shall thereupon have the Page 8 of DOC

9 13. MISCELLANEOUS: 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 from the date of the notice to cure the default. If it is not cured by that time, this AGREEMENT shall terminate. 13.1ENTIRE AGREEMENT: This AGREEMENT contains the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, regarding the ARTWORK that are not included herein. No alteration, change, or modification of the terms of the AGREEMENT shall be valid unless made in writing and signed by both parties hereto HEADINGS. The headings contained in this AGREEMENT are provided for convenience only and shall not be construed to constrict or expand the obligations and/or covenants set forth therein. 13.3ATTORNEYS FEES. In the event either party incurs attorneys fees in the enforcement of this AGREEMENT, the prevailing party shall be entitled to recovery of all reasonable costs and attorneys fees and other related expenses, including fees and costs incurred in any appeals. 13.4NOTICES: Any notices regarding this AGREEMENT given by either party to the other must be in writing and shall be deemed to have been given, delivered or made, as the cause may be upon mailing via U.S. mail in a properly sealed and postage prepaid envelope addressed to the following: If to the CITY: If to the ARTIST: City of Safety Harbor Attn: City Manager 750 Main Street Safety Harbor, Florida Either party may change their above address by giving the other party written notice of any changes in the manner provided herein, but notice of change of address is effective only upon actual receipt AUTHORIZATION. Both parties represent and warrant that they are authorized to enter into this AGREEMENT and that the individuals executing Page 9 of DOC

10 this Agreement have full power and authority to bind their respective parties to the terms hereof CONTROLLING LAW AND VENUE: This AGREEMENT shall be governed by, construed, and interpreted in accordance with the laws of the State of Florida. The CITY and the ARTIST consent to jurisdiction over them and agree that venue for any state action shall like solely in the Sixth Judicial Circuit in and for Pinellas County, Florida, and for any federal actions shall lie solely in the U.S. District Court, Middle District of Florida, Tampa Division CONSTRUCTION OF AGREEMENT: This AGREEMENT is a result of mutual drafting and review and shall not be construed more strictly against either party SEVERABILITY: If anyone or more of the provisions of this AGREEMENT, or any exhibits attached hereto, are held to be invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed separate, distinct and independent provision and shall not affect the validity of the remaining provisions hereof. IN WITNESS THEREOF, the parties hereto have caused this AGREEMENT to be executed on the date first above written. CITY OF SAFETY HARBOR, FLORIDA Attest: Karen Sammons City Clerk By: City Manager ARTIST: Witness: Print Name: Print Name: By: Page 10 of DOC