Agreement for Commission of Public Artwork between Art Consultant and Municipality
This Agreement is entered into this __________________________ (Date) by and
between ___________________________________ (Name of Municipality) , hereinafter
called Public Agency , with its central office located at __________________________ (Name
of Buyer) of __________________________________________________________________
_____________ (street address, city, state, zip) an _________________________________
(Name of Art Consultant) , a corporation organized and existing under the laws of the state of
____________________, with its principal office located at _____________________________
____________________________________________ (street address, city, state, zip code) ,
referred to herein as Art Agency .
Whereas, a corporation organized and existing under the laws of the state of
__________________, with its principal office located at _______________________________
_____________________________________ (street address, city, county, state, zip code) ,
referred to herein as Public Agency requires the services of an Art Agency to create a work of
art (hereinafter the Artwork ) in a public space located at _______________________________
_____________________________________ (street address, city, county, state, zip code) ,
referred to herein as the Site ; and
Whereas, the Art Agency is a professional Art Agency whose work and qualifications
make the Art Agency uniquely qualified to create the Artwork ; and
Whereas, the Public Agency has selected the Art Agency based upon the Art
Agenc y’s work and qualifications; and
Whereas, the Art Agency and the Public Agency wish to perform under the terms and
conditions of this Agreement;
Now, therefore, in consideration of the above-stated premises and subject to the
conditions hereinafter set forth, the parties agree as follows:
Article 1 Scope of Services
I. Art Agency ’s Obligations
A. The Art Agency shall perform all services and furnish (all supplies, material
and/or work equipment as necessary for the Design , fabrication, transportation and installation
of the Artwork . Services shall be performed in a professional manner and in strict compliance
with all terms and conditions in this Agreement.
B. The Art Agency shall determine the Art Agency ’ s expression, Design ,
dimensions and materials of the Artwork , subject to review and acceptance by the Public
Agency and any regulatory agencies with project oversight, as set forth in this Agreement. The
Art Agency will do so in a manner that ensures that the Artwork as installed shall not interfere
with the intended use of the Site , pedestrian and other traffic flow, parking, safety devices and
procedures, and other needs and functions of the Site as defined by Public Agency and/or
ordinance prior to the development of a Design by the Art Agency
C. The Art Agency shall prepare the Design concept described in Section III of
this Agreement.
D. The Art Agency shall complete the fabrication, transportation and installation of
the Artwork by the scheduled dates as provided in Section IV-A(1) of this Agreement.
E. The Art Agency shall secure any and all required licenses, permits and similar
legal authorizations at the Art Agenc y’s expense as may be necessary for the installation of the
Artwork at the Site .
F. The Art Agency shall arrange for the transportation and installation of the
Artwork in coordination with Public Agency . If the Art Agency does not install the Artwork
himself, Art Agency shall supervise and approve the installation. Prior to the installation of the
Artwork , Art Agency shall inspect Site to ensure that it is ready to accept the Artwork and
compliant with the specifications provided by the Art Agency . Art Agency shall notify Public
Agency of any perceived conflict, defect or non-compliance with specifications. All work shall be
performed by qualified professionals and by licensed contractors as required by law.
G. Art Agency shall provide required insurance in amounts and limits specified in
Article V and Exhibit C .
H. Art Agency shall provide a list of all subcontractors along with a copy of the
agreement between the Art Agency and each subcontractor.
I. Art Agency shall provide a maintenance manual with a description of all
materials, processes and products utilized in the Artwork and the required care and upkeep
involved, as well as recommended procedures in the event of necessary conservation.
J. Art Agency shall provide a set of “as built” drawings if there is significant
deviation from approved and permitted construction documents.
K. Art Agency shall provide photographic documentation of the Artwork in a format
acceptable to Art Agency and Public Agency .
L. Art Agency shall be available with reasonable advance notice for a reasonable
number of meetings required to coordinate Design and project implementation, ceremonies and
the like, as necessary.
II. Public Agency ’s Obligations
A. The Public Agency shall perform all obligations in strict compliance with all
terms and conditions in this Agreement.
B. The Public Agency shall be responsible for providing the Art Agency , at no
expense to the Art Agency , copies of existing Design s, drawings, reports, list of required
permits, and other existing relevant data, if any, which is needed by Art Agency in order to
perform.
C. The Public Agency shall be responsible for compliance with all applicable laws
and regulations, including but not limited to zoning or environmental regulations, and prior to Art
Agency ’s development of Design , shall provide to the Art Agency in writing an explanation of
any specific limitations imposed by such laws and/or regulations that may impact the
D. The Public Agency shall prepare the Site in accordance with the specifications
detailed in the approved Design concept in Section III of this Agreement. The Public Agency
shall be responsible for [all expenses, labor and equipment (specify if not all)] to prepare the
Site for the timely transportation and installation of the Artwork . The Public Agency shall
complete the Site preparations by the scheduled installation date as provided in Section IV-
B(1) of this Agreement or shall contact the Art Agency in writing informing him or her of any
delays.
E. T he Public Agency shall provide and install a plaque on or near the Artwork
containing a credit to the Art Agency and a copyright notice substantially in the following form:
Copyright © ( Art Agency ’s name, date of publication). If the plaque is to be placed on the
Artwork or Artwork pedestal, it should be done in consultation with the Art Agency .
F. The Public Agency shall not permit any use of the Art Agency ’s name or
misuse of the Artwork which would reflect discredit on the Art Agency ’s reputation as an Art
Agency or which would violate the spirit of the Artwork , should such use or misuse be within
the Public Agency ’s control.
III. Design
A. Concept/Schematic
The Art Agency submitted a Design concept/schematic (the Design ) which was
selected and approved by the Public Agency . The Design shall be attached to this
Agreement as Exhibit A .
B. Approval
Within _____ days after the execution of this agreement, the Public Agency
shall notify the Art Agency if Public Agency requires any revisions to the Design in
order to comply with any applicable laws, ordinances and/or regulations or for other
reasons including, but not limited to, ensuring the physical integrity of the Artwork or its
installation at the Site . If agreed upon by both parties, such revisions will become a part
of the Design .
C. Final Design
Upon approval of the schematic Design by Public Agency , Art Agency is
authorized to proceed with Final Design which shall include the following: presentation
quality materials, which shall include colored drawings or computer-generated color
images (in plan and elevation) and/or 3-dimensional models that accurately reflect the
Artwork and how it will be installed at the Site , mock-ups, final color and materials
samples, proposed fabrication methods, feasibility studies and final cost estimates at
Design completion. When used in reference to the proposed Artwork , Final Design
Documents shall fix and describe the size and character of the Artwork with respect to
its relationship to the Site , including architectural, structural, mechanical and electrical
systems, materials and other elements as may be appropriate.
D. Final/Construction Documents
Art Agency shall submit Construction Documents for construction and/or
installation of the proposed Artwork as approved, which must be signed and stamped
by Design professionals licensed in the State of California, as required by the California
Uniform Building Code and any local government amendments to the Building Code.
1. Art Agency shall deliver Maquette (computer model or otherwise as
agreed to by both parties) and color and material samples.
2. Art Agency shall review Architect’s Design Development and/or
Construction Documents for accuracy of the integration of Art Agency’s Proposal within
the Site and provide the Public Agency with written comments and/or corrections.
3. Art Agency shall provide a detailed description of future maintenance
requirements for the Artwork . The Art Agency shall present the Design to a qualified
conservator, who will make recommendations on the maintenance of the Artwork , and
the Art Agency shall provide a written copy of the conservator’s recommendations to
the Public Agency . The conservator’s report will indicate future maintenance and
conservation needs and anticipated costs and may reflect issues such as the longevity
of the materials used and the life span of the project.
E. Art Agency shall deliver a schedule describing Art Agency ’s specific timelines
for completing the Artwork .
IV. Budget, Payment and Deliverables Schedule
A. Budget
1. The Art Agency shall prepare a budget, which shall include all goods,
services and materials with such costs itemized. The Budget shall be attached to
this Agreement as Exhibit B .
2. Budget shall mean a specific and detailed document identifying the cost
of completion of all work under this Agreement, including all modifications. The
Budget shall include the costs for all Design fees and costs; preliminary and final
engineering requirements; materials and labor for fabrication, including Art
Agency and subcontractors’ costs; consultants, including engineers and
specifications writers; transportation of Artwork ; installation of Artwork ,
including any necessary permits; permits and licenses; required insurance; any
sales tax; and a 5% to10% contingency allowance. Calculation of the budget will
take into consideration the possible inflation of service and material costs
between the date of execution of this Agreement and the anticipated completion
date.
3. If the Art Agency incurs costs in excess of the amount listed in the
budget, the Art Agency shall pay such excess from the Art Agency’s own funds
unless the Art Agency obtains approval in writing for such additional costs from
the Public Agency (or such costs were the result of actions or inaction of the
Public Agency ).
B. Payment Schedule
Art Agency’s completion milestones and payment schedule is as set forth in
Exhibit C , Payment Schedule , which is incorporated herein by reference
V. Schedule and Progress Reports
A. The Art Agency shall notify the Public Agency of the anticipated schedule for
the fabrication, transportation and installation of the Artwork , including a schedule for the
submission of progress reports and inspections if any required by Public Agency or permitting
agency . The Schedule may be amended by written agreement. The Schedule of Deliverables
must identify a specific date or timeframe for the completion of the Artwork . This Schedule of
Deliverables is included as Appendix C .
B. The Art Agency shall inform the client of the progress of each phase of work
completed under the Agreement.
VI. Fabrication Stage
A. The Art Agency shall fabricate [and install] the Artwork in substantial conformity
with the Design . The Art Agency may not deviate from the approved Design without written
approval of the Public Agency .
B. If the Artwork is being constructed on Site , the Art Agency shall avoid creating
nuisance conditions arising out of the Art Agency ’s operations.
C. The Public Agency shall have the right to review the Artwork at reasonable
times during the fabrication thereof upon reasonable notice.
D. If the Public Agency , upon review of the Artwork , determines that the Artwork
does not conform to the approved Final Design , the Public Agency reserves the right to notify
the Art Agency in writing of the deficiencies and that the Public Agency intends to withhold the
next budget installment within [____] days of the determination as in Paragraph G below.
E. The Art Agency will have thirty days to cure the Public Agency ’s objections and
will notify the Public Agency in writing of completion of the cure. The Public Agency shall
promptly review the Artwork , and upon approval shall release the next budget installment. If the
Art Agency disputes the Public Agency’s determination that the Artwork does not conform,
the Art Agency shall promptly submit reasons in writing to the Public Agency within (_____)
days of the Public Agency ’s prior notification to the contrary. The Public Agency shall make
reasonable efforts to resolve the dispute with the Art Agency in good faith. However, final
determination as to whether the Art Agency has complied with the terms of this Agreement
shall remain with the Public Agency .
F. The Art Agency shall notify the Public Agency in writing when fabrication of the
Artwork has been completed, and that the Artwork is ready for delivery and installation at the
Site if the Artwork was fabricated off-Site.
G. Prior to the transportation and installation of the Artwork , the Public Agency
shall inspect the Artwork within (___) days after receiving notification pursuant to Paragraph F
to determine that the Artwork conforms with the Final Design : give final approval of the
fabricated Artwork and; authorize the installation of the Artwork at the Site . The Public
Agency shall not unreasonably withhold final approval of the fabricated Artwork . In the event
that the Public Agency does withhold final approval, the Public Agency shall submit the
reasons for such disapproval in writing within (____) days of examining the fabricated Artwork .
The Art Agency shall then have (___) days from the date of the Public Agency ’s notice of the
disapproval to make the necessary adjustments to the fabricated Artwork in accordance with
such writing. The Art Agency shall not be penalized for any delay in the delivery and installation
of the Artwork to the Site unless the Art Agency has willfully and substantially deviated from
the Design without the prior approval of the Public Agency . The Art Agency shall then be held
responsible for any expenses incurred in correcting such deviation.
H. The Public Agency shall promptly notify the Art Agency of any delays
impacting installation of the Artwork . Any additional storage and insurance costs incurred by
the Art Agency shall be borne by the Public Agency in the event that the delay is the caused
by the Public Agency .
I. The Art Agency shall be required to inspect the Site prior to the transportation
and installation of the Artwork and shall notify the Public Agency of any adverse Site
conditions that will impact the installation of the Artwork and which are in need of correction.
Failure to do so by the Art Agency shall be deemed as an acceptance of the Site conditions.
J. The Art Agency shall take reasonable measures to protect or preserve the
integrity of the Artwork with the application of a protective sealant, patina or anti-graffiti coating,
if applicable, unless the Public Agency specifically disapproves of such.
VII. Installation
A. Upon the Public Agency’s final approval of the fabricated Artwork as being in
conformity with the Design , the Art Agency shall deliver and install the completed Artwork to
the Site in accordance with the schedule provided for in IV-B .
B. The will Art Agency shall coordinate closely with the Public Agency to ascertain
that the Site is prepared to receive the Artwork . Art Agency must notify Public Agency of any
adverse conditions at the Site that would effect or impede the installation of the Artwork .
C. The Art Agency is responsible for timely installation of the Artwork . Art Agency
may not install the Artwork until authorized to do so by the Public Agency .
D. The Art Agency shall be present to supervise the installation of the Artwork .
E. Upon installation, the Artwork shall be deemed to be in the custody of the
Public Agency for purposes of Article 3 and Article 5 of this Agreement; the Public Agency
assumes liability for any damage to the Artwork or injury to persons or property caused by the
Artwork or any activity related to the Artwork .
F. Upon completion of the installation of the Artwork , the Art Agency shall provide
the Public Agency with written instructions for the future maintenance and preservation of the
Artwork . The Public Agency is responsible for the proper care and maintenance of the
Artwork .
VIII. Approval and Acceptance
A. The Art Agency shall notify the Public Agency in writing when all services as
required of both Parties by this Agreement prior to this paragraph have been completed in
substantial conformity with the Design and contract documents.
B. The Public Agency shall promptly notify the Art Agency in writing of its final
acceptance of the Artwork within ____ days after the Art Agency submitted written notice
pursuant to paragraph (a) above. The effective date of final acceptance shall be the date the
Public Agency submits written notice to the Art Agency of its final acceptance of the Artwork .
The final acceptance shall be understood to mean that the Public Agency acknowledges
completion of the Artwork in substantial conformity with the Design , and that the Public
Agency confirms that all services as required of both Parties by this Agreement prior to
paragraph (c) of this section have been completed. Title to the Artwork to the Public Agency
passes upon final acceptance of the Artwork and final payment by Public Agency to Art
Agency . If a regulatory agency must approve the completed Artwork , the Public Agency
should move promptly to gain such approval as it will be a precondition to the Public Agency ’s
ability to accept and approve the finished Artwork from the Art Agency .
C. If the Public Agency disputes that all the services have been performed, the
Public Agency shall notify the Art Agency in writing of those services the Art Agency has
failed to perform within ____ days after the Art Agency submitted written notice pursuant to
Paragraph A above. The Art Agency shall promptly perform those services indicated by the
Public Agency .
D. If the Art Agency disputes the Public Agency’s determination that not all
services have been performed, the Art Agency shall submit reasons in writing to the Public
Agency within ____ days of the Public Agency’s prior notification to the contrary. The Public
Agency shall make reasonable efforts to resolve the dispute with the Art Agency in good faith.
However, final determination as to whether all services have been performed shall remain with
the Public Agency .
E. Upon the resolution of any disputes that arise under paragraphs (c) and (d) of
this Section, the Public Agency shall notify the Art Agency of its final acceptance of the
Artwork pursuant to Paragraph B.
Article 2 Terms of Agreement
I. Duration
This Agreement shall be effective on the date that this contract has been signed by both
parties, and, unless terminated earlier pursuant to such provisions in the Agreement, shall
extend until final acceptance by the Public Agency under Section VIII-B of Article 1, or
submission of final payment to the Art Agency by the Public Agency under Exhibit B,
whichever is later. Extension of time of performance hereunder may be granted upon the
request of one party and the consent of the other thereto, which consent shall not be
unreasonably withheld. Such extension shall be in writing, signed by both parties, and attached
to the schedule described in Section IV-B of Article 1 .
II. Force Majeure
The Public Agency shall grant to the Art Agency a reasonable extension of time in the
event that conditions beyond the Art Agency’s control render timely performance of the Art
Agency’s services impossible or unduly burdensome. All such performance obligations shall be
suspended for the duration of the condition. Both parties shall take all reasonable steps during
the existence of the condition to assure performance of their contractual obligations when the
condition no longer exists. Failure to fulfill contractual obligations due to conditions beyond
either Party’s reasonable control will not be considered a breach of contract, provided that such
obligations shall be suspended only for the duration of such conditions.
Article 3. Risk of Loss
The Art Agency shall bear the risk of loss or damage to the Artwork until the
installation of the Artwork . The Art Agency shall take such measures as are reasonably
necessary to protect the Artwork from loss or damage. The Public Agency shall bear the risk
of loss or damage to the Artwork prior to final acceptance only if, during such time, the partially
or wholly completed Artwork is in the custody, control or supervision of the Public Agency or
its agent(s) for the purposes of transporting, storing, installing or performing other services to
the Artwork .
Article 4 Art Agency’s Representations and Warranties
I. Warranties of Title
A. The Art Agency represents and warrants that:
1. The Artwork is solely the result of the artistic effort of the Art Agency ;
2. Except as otherwise disclosed in writing to the Public Agency , the
Artwork is unique and original and does not infringe upon any copyright or the rights of
any person;
3. The Artwork (or duplicate thereof) has not been accepted for sale
elsewhere;
4. The Art Agency has not sold, assigned, transferred, licensed, granted,
encumbered or utilized the Artwork or any element thereof or any copyright related
thereto which may affect or impair the rights granted pursuant to this Agreement;
5. The Artwork is free and clear of any liens from any source whatsoever.
6. All Artwork created by the Art Agency under this Agreement, whether
created by the Art Agency alone or in collaboration with others shall be wholly original
with the Art Agency and shall not infringe upon or violate the rights of any third party.
7. The Art Agency has the full power to enter into and perform this
Agreement and to make the grant of rights contained in this Agreement.
8. All services performed hereunder shall be performed in accordance with
all applicable laws, regulations, ordinances, etc. and with all necessary care, skill, and
diligence.
9. These representations and warranties shall survive the termination or
other extinction of this Agreement.
II. Warranties of Quality and Condition
A. The Art Agency represents and warrants that all work will be performed in
accordance with professional “workmanlike” standards and free from defective or inferior
materials and workmanship (including any defects consisting of “inherent vice,” or qualities that
cause or accelerate deterioration of the Artwork ) for year after the date of final acceptance by
the Public Agency under Section VIII-B of Article I .
B. The Art Agency represents and warrants that the Artwork and the materials
used are not currently known to be harmful to public health and safety.
C. The Art Agency represents and warrants that reasonable maintenance of the
Artwork will not require procedures substantially in excess of those described in the
maintenance and preservation recommendations submitted by the Art Agency pursuant to
Section VII-F of Article I .
D. If within ( e.g., one) _____ year the Public Agency observes any breach of
warranty described in this Section II of Article 4 , the Art Agency shall cure the breach
promptly, satisfactorily and consistent with professional conservation standards, at no expense
to the Public Agency . The Public Agency shall give notice to the Art Agency of such breach
with reasonable promptness. However, if Art Agency did not disclose this risk of breach in the
Proposal and Maintenance and Conservation manual, and if breach is not curable by Art
Agency , the Art Agency is responsible for reimbursing the Public Agency for damages,
expense and loss incurred by the Public Agency as a result of the breach of warranty.
However, if the Art Agency disclosed the risk of this breach in the Proposal and maintenance
and conservation manual and the Public Agency accepted that it may occur, as indicated by
the written final acceptance of the Artwork , it shall not be deemed a breach for purposes of this
Section II of this Article 4 of this Agreement..
E. If after (e.g., one) _____ year the Public Agency observes any breach of
warranty described in this Section II of this Article 4 that is curable by the Art Agency , the
Public Agency shall contact the Art Agency to make or supervise repairs or restorations at a
reasonable fee during the Art Agency’s lifetime. The Art Agency shall have the right of first
refusal to make or supervise repairs or restorations. Should the Art Agency be unavailable or
unwilling to accept reasonable compensation under the industry standard, the Public Agency
may seek the services of a qualified restorative conservator and maintenance expert.
F. The foregoing warranties are conditional, and shall be voided by the failure of the
Public Agency to maintain the Artwork in accordance with the Art Agency ’s specifications
and the applicable conservation standards. If the Public Agency fails to maintain the Artwork
in good condition, the Art Agency , in addition to other rights or remedies the Art Agency may
have in equity or at law, shall have the right to disown the Artwork as the Art Agency ’s
creation and request that all credits be removed from the Artwork and reproductions thereof
until the Artwork’s condition is satisfactorily repaired.
Article 5 Insurance
I. General
A. The Art Agency acknowledges that until installation of the Artwork under
Section VII-E of Article 1, any injury to property or persons caused by the Art Agency’s
Artwork or any damage to, theft of, vandalism to, or acts of God affecting the Art Agency’s
Artwork are the sole responsibility of the Art Agency , including, but not limited to, any loss
occurring during the creation, storage, transportation or delivery of the Art Agency’s Artwork ,
regardless of where such loss occurs.
B. Terms for the procurement and duration of insurance are provided in Exhibit C.
C. Required insurance policies are described in Exhibit C .
II. Indemnity
A. The Art Agency shall indemnify the Public Agency , its respective officers,
agents, and employees, from any claims brought arising out of the breach of this Agreement or
any negligent occurrence which occurs pursuant to the performance of this Agreement by the
Art Agency , its subcontractors, agents or employees.
B. The Public Agency shall indemnify the Art Agency , Art Agency’s
subcontractors, agents or employees from any claims brought arising out of the breach of this
Agreement or any negligent occurrence which occurs pursuant to the performance of this
Agreement by the Public Agency , its respective officers, agents, and employees.
C. Each Party shall immediately notify the other of any written claim regarding any
matter resulting from or relating to the Party’s obligations under this Agreement. Each Party
shall cooperate, assist, and consult with the other in the defense or investigation of any such
claim arising out of or relating to the performance of this Agreement.
D. The indemnification shall include reasonable attorneys’ fees and costs.
E. This indemnification shall survive the termination or expiration of this Agreement.
F. Notwithstanding any provision of this Agreement to the contrary, no Party shall
recover from a Party to this Agreement in an action, of whatever nature, in contract or tort, any
consequential or incidental damages, lost profits, or any type of expectancy damages.
Article 6 Ownership and Intellectual Property Rights
I. Title
Title to the Artwork shall pass to the Public Agency upon the Public Agency’s written
final acceptance and payment for the Artwork pursuant to Section VIII-B of Article I and
Exhibit B.
II. Owner ship of Documents
One set of presentation materials prepared by Art Agency and submitted to Public
Agency under this Agreement shall be retained by Public Agency .
III. Copyright Ownership
The Art Agency 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.
IV. Reproduction Rights
A. In view of the intention that the final Artwork shall be unique, the Art Agency
shall not make any additional exact duplicate three-dimensional reproductions of the final
Artwork , nor shall the Art Agency grant permission to others to do so except with the written
permission of the Public Agency . However, nothing shall prevent the Art Agency from creating
works in the Art Agency’s manner and style of original Artists expression.
B. The Art Agency grants to the Public Agency and its assignees an irrevocable
license to make two- dimensional reproduction of the Artwork for non-commercial purposes,
including, but not limited to, reproductions used in brochures, media publicity, and exhibition
catalogues or other similar publication provided that these rights are exercised in a tasteful and
professional manner.
C. All reproductions by the Public Agency shall contain a credit to the Art Agency
and a copyright notice in substantially the following form: © ( Art Agency’s name, date of
publication).
D. The Art Agency shall use his best efforts in any public showing or resume use of
reproductions to give acknowledgment to the Public Agency in substantially the following form:
“An original Artwork owned and commissioned by the Public Agency .”
E. The Art Agency shall, at the Art Agency’s expense, cause to be registered with
the United States Register of Copyrights, a copyright in the Artwork in the Art Agency’s name.
F. If the Public Agency wished to make reproductions of the Artwork for
commercial purposes including, but not limited to, tee shirts, post cards and posters, the Parties
shall execute a separate agreement to address the terms of the license granted by the Art
Agency and the royalty the Art Agency shall receive.
Article 7 Art Agency’s Rights
I. General
A. The Art Agency retains all rights under state and federal laws including §106A of
the Copyright Act of 1976.
B. The Public Agency agrees that it will not intentionally alter, modify, change,
destroy or damage the Artwork without first obtaining permission from the Art Agency . The
Public Agency further agrees to take reasonable measures to avoid these from occurring from
the gross negligence of the Public Agency , its representatives, or employees pursuant to the
Federal Visual Artists’ Rights Act .
C. If any alteration or damage to the Artwork occurs, the Art Agency shall have the
right to disclaim authorship of the Artwork in addition to any remedies he/she may have in law
or equity under this contract. Upon written request, the Public Agency shall remove the
identification plaque and all attributive references to the Art Agency at its own expense within
____ days of receipt of the notice. No provision of this Agreement shall obligate the Public
Agency to alter or remove any such attributive reference printed or published prior to the
Public Agency’s receipt of such notice. The Art Agency may take such other action as the Art
Agency may choose in order to disavow the Artwork
II. Alteration of Site or Removal of Artwork
A. The Public Agency shall notify the Art Agency of any proposed significant
alteration of the Site that would affect the intended character and appearance of the Artwork .
The Public Agency shall consult with the Art Agency in the planning and execution of any
such alteration. The Public Agency shall make a reasonable effort to maintain the integrity of
the Artwork .
B. The Public Agency agrees not to arbitrarily remove or relocate the Artwork
without first obtaining the Art Agency’s express permission to do so. The Art Agency shall not
unreasonably withhold approval of removal or relocation of the Artwork . Should the Art
Agency agree to such removal or relocation of the Artwork , the Art Agency shall provide the
Public Agency with written handling instructions. In the event that the Art Agency is deceased
or unable to otherwise give his consent, the then current Public Agency of the copyright of the
Artwork shall not unreasonably withhold permission, keeping in mind the intentions of the Art
Agency at the time of commission and fabrication.
OR
A. The Public Agency shall notify the Art Agency in writing upon adoption of a
plan of construction or alteration of the Site which would entail removal or relocation of the
Artwork which might result in the Artwork being destroyed, distorted or modified. The Art
Agency shall be granted the right of consultation regarding the removal or relocation of the
Artwork . If the Artwork cannot be successfully removed or relocated as determined by the
Public Agency , the Art Agency may disavow the Artwork or have the Artwork returned to
him at his expense.
B. The Artwork may be removed or relocated or destroyed by the Public Agency
should the Art Agency and the Public Agency not reach mutual agreement on the removal or
relocation of the Artwork after a period not to exceed ( e.g . 90) days after written notice to the
Art Agency . During the ( e.g. 90) day period, the parties shall engage in good faith negotiations
concerning the Artwork ’s removal or relocation.
C. In the event of changes in building codes or zoning laws or regulations that
cause the Artwork to be in conflict with such codes, laws or regulations, the Public Agency
may authorize the removal or relocation of the Artwork without the Art Agency ’s prior
permission. In the alternative, the Public Agency may commission the Art Agency by a
separate agreement to make any
D. If the Public Agency reasonably determines that the Artwork presents an
imminent hazard to the public, other than as a result of the Public Agency’s failure to maintain
the Artwork as required under this Agreement, the Public Agency may authorize the removal
of the Artwork without the prior approval of the Art Agency .
E. This clause is intended to replace and substitute for the rights of the Art Agency
under Federal Visual Artists’ Rights Act 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 8 Art Agency as an Independent Contractor
The Art Agency agrees to perform all work under this Agreement as an independent
contractor and not as an employee of the Public Agency . The Art Agency acknowledges and
agrees that the Art Agency shall not hold itself out as an authorized agent of the Public
Agency with the power to bind in any manner. The Art Agency shall provide the Public
Agency with the Art Agency’s Tax Identification number and any proof of such number as
requested by the Public Agency .
Article 9 Assignment of Artwork
The work and services required of the Art Agency are personal and shall not be
assigned, sublet or transferred. Any attempt by the Art Agency to assign this Agreement or any
rights, duties or obligations arising hereunder shall be void and of no effect unless prior written
consent is given by the Public Agency . The Public Agency shall have the right to assign or
transfer any and all of the Public Agency’s rights and obligations under this Agreement,
subject to the Art Agency’s consent; if ownership by Public Agency of the Site is transferred
and if the Art Agency refuses to give consent, this Agreement shall terminate.
Article 10 Termination
A. Either Party may terminate this Agreement without recourse by the other where
performance is rendered impossible or impracticable for reasons beyond such Party’s
reasonable control such as, but not limited to, acts of nature; war or warlike operation; superior
governmental regulation or control; public emergence; or strike or other labor disturbances.
Notice of termination of this Agreement shall be given to the non-terminating party in writing not
less than ____ days prior to the effective date of termination.
B. The Public Agency may terminate this Agreement without cause upon ( e.g., 60)
______ days written notice to the Art Agency . The Public Agency shall pay the Art Agency
for services performed and commitments made prior to the date of the termination, consistent
with the schedule of payments set forth in Exhibit B of this Agreement. The Art Agency shall
have the right to an equitable adjustment in the fee for services performed and expenses
incurred beyond those for which the Art Agency has been compensated to date under Exhibit
B with allowance for documented lost opportunities, unless the parties come to a settlement
otherwise. The Art Agency shall retain possession and title to the studies, drawing, Designs ,
maquettes, and models already prepared and submitted or prepared for submission to the
Public Agency by the Art Agency under this Agreement prior to the date of termination.
C. If either party to this Agreement shall willfully or negligently fail to fulfill in a timely
and proper manner, or otherwise violate any of the covenants, agreements or stipulations
material to this Agreement, the other party shall thereupon have the right to terminate this
Agreement by giving written notice to the defaulting party of its intent to terminate specifying the
grounds for termination. The defaulting party shall have _____ days after the effective date of
the notice to cure the default. If it is not cured by that time, this Agreement shall terminate.
D. If the Art Agency defaults for cause other than death or incapacitation, the Art
Agency shall return to the Public Agency all funds provided by the Public Agency in excess
of the expenses already incurred. The Art Agency shall provide an accounting of these
expenses. All finished and unfinished drawings, sketches, photographs and other work products
prepared and submitted or prepared for submission by the Art Agency under this Agreement
shall be retained by the Art Agency . The Public Agency shall retain the right to have the
Artwork fabricated or executed. However, the Art Agency shall retain the copyright in the
Artwork and all rights under Article 7 and Article 8 .
E. Upon notice of termination, the Art Agency and its subcontractors shall cease all
services affected.
Article 11 Notices and Documents
Notices under this Agreement shall be delivered personally or through certified mail,
return receipt requested, postage prepaid, to the addresses stated below, or to any other
address as may be noticed by a Party:
For the Public Agency : ___________________________________________________
__________________________ (street address, city, county, state, zip code) .
For the Art Agency : _____________________________________________________
______________________ (street address, city, county, state, zip code) .
Notice shall be deemed effective on the date personally delivered or, if mailed, three (3)
days after the postmarked date.
Article 12 Waiver
The Parties agree that a waiver of any breach or violation of any term or condition of this
Agreement shall not be deemed to be a waiver of any other term or condition contained herein
or a waiver of any subsequent breach or violation of the same or any other term or condition.
Article 13 Conflict of Interest
The Art Agency and Public Agency shall avoid all conflicts of interest or appearance of
conflicts of interest in the performance of this Agreement.
Article 14 Arbitration
Any dispute under this Agreement shall be required to be resolved by binding arbitration
of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one
arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall
arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration
Association then in force and effect.
Article 15 Amendments
No alteration, change or modification of the terms of this Agreement shall be valid unless
made in writing and signed by both Parties hereto.
Article 16. Entire Agreement
This Agreement shall constitute the entire agreement between the parties and any prior
understanding or representation of any kind preceding the date of this Agreement shall not be
binding upon either party except to the extent incorporated in this Agreement.
Article 17. Governing Law
This Agreement shall be governed by, construed, and enforced in accordance with the
laws of the State of ____________.
Witness our signatures this the _____ day of ____________, 20____.
___________________________ ___________________________
Name of Municipality Name of Art Consultant
By_______________________________ By_________________________
Official signing on behalf of Municipality
Corporate Officer
Exhibit A
Description of Project
Exhibit B
Budget and Payment Schedule
The Public Agency shall pay the Art Agency a fixed fee of $_____________, which shall
constitute full and complete compensation for all the services performed and material furnished
by the Art Agency under this Agreement. Payment shall be made in accordance with the
following scheduled installments, each installment representing full and final payment for all
services and material provided prior to payment thereof:
A. $_____________ upon the execution of this Agreement, recognizing that the Art
Agency will invest time and expense in preparing the Design as set forth under Section III of
Article 1 .
B. $_____________ upon submission of the Design as set forth under Section III
of Article 1.
C. $_____________ upon the Public Agency’s notification to the Art Agency of its
approval of the Design as set forth under Section III of Article 1 or upon permitting of
construction documentation if there’s not a required Public Agency approval of final drawings
in Section III of Article 1 .
D. $_____________ upon commencement of fabrication.
E. $_____________ upon completion of 50% of the fabrication.
F. $_____________ upon completion of the fabrication and when the Artwork is
ready for delivery and installation at the Site as set forth under Section V of Article 1.
G. $_____________ upon delivery by Art Agency to the Public Agency of
Maintenance Manual with written instructions for the maintenance and preservation of the
Artwork under Section VII-E of Article 1 .
H. $_____________ upon final acceptance of the Artwork by the Public Agency
as set forth under Section VIII-B of Article 1 and approval by the regulatory agency.
Exhibit C
Insurance
I. General
A. The Art Agency shall procure and maintain for the duration of this Agreement, at
the Art Agency’s expense, insurance in the kinds and amounts as provided in this Exhibit with
insurance companies authorized to do business in [name of city or state]. Such insurance shall
cover the Art Agency’s agents, contractors, subcontractors or employees. The Public Agency ,
its officials, employees, agents and contractors shall be named as additional insured’s. The
coverage shall contain no special limitations on the scope of protection afforded to the Public
Agency , its officials, employees, agents and contractors.
B. The Art Agency and the Art Agency’s subcontractors’ insurance coverage shall
be the primary insurance as respects the Public Agency , its officials, employees, agents and
contractors. Any insurance or self-insurance maintained by the Public Agency , its officials,
employees, agents and contractors shall be in excess of the Art Agency’s or the Art Agency’s
subcontractor’s insurance and shall not contribute to the Art Agency’s or the Art Agency’s
subcontractor’s insurance. The coverage shall state that the Art Agency’s or the Art Agency’s
subcontractors’ insurance shall apply separately to each insured against whom a claim is made
or suit is brought, except with respect to the limits of the insurer’s liability.
C. Prior to undertaking any work under this Agreement, the Art Agency , at no
expense to the Public Agency , shall furnish to the Public Agency a certificate of insurance
with original endorsements affecting coverage for each of the insurance policies provided in this
Exhibit. The certificates and endorsements for each insurance policy are to be signed by a
person authorized by that insurer to bind coverage on its behalf. The certificates must be current
and the Art Agency must submit replacement or renewal certificates of insurance for all the
policies expiring during the term of this Agreement. Each certificate shall clearly indicate that the
Art Agency has obtained insurance in the type, amount and classification as specified in this
Exhibit and that no material changes, cancellation, suspension or reduction in limits of insurance
shall be effective except after 30 days prior written notice to the Public Agency . Each certificate
shall indicate that the subcontractors are additional insured’s or the Art Agency shall furnish
separate certificates for each subcontractor. All coverages for subcontractors shall be subject to
all of the requirements stated in this Agreement, including, but not limited to, naming the parties
as additional insured’s.
D. Any deductibles or self-insured retentions must be declared to, and approved by,
the Public Agency . At the option of the Public Agency , either: the insurer shall reduce or
eliminate such deductibles or self-insured retentions as respects the Public Agency , its
officials, employees, agents and contractors; or the Art Agency shall procure a bond
guaranteeing payment of losses and related investigations, claim administration and defense
expenses in the amount of $(_________).
E. Despite any changes to or cancellation of insurance, the Art Agency remains
responsible for maintaining the required insurance coverage for the duration of the Agreement.
F. Failure of the Art Agency to comply with any of the terms of this Article 6 shall
be considered a material breach of this Agreement and cause for its immediate termination.
II. Insurance Policies
A. Commercial General Liability insurance policy, written on an occurrence form,
including all the usual coverage known as:
0
· premises/operations liability;
· products/completed operations;
· personal/advertising injury;
· contractual liability;
· broad-form property damage; and
· independent contractor’s liability.
B. Said policy must provide the following minimum coverage:
· $1,000,000.00 combined single limit per occurrence for bodily injury, personal
injury and property damage.
· $1,000,000.00 annual aggregate.
C. Automobile liability insurance policy, including coverage for Public Agency , non-
Public Agency , leased or hired vehicles, providing the following minimum coverage:
0
· bodily injury liability of $[50,000] for each person,
· $300,000.00 per occurrence,
· property damage liability of $[25,000] for each occurrence.
D. The Art Agency agrees to keep in good standing a valid driver’s license at all
times during the term of this Agreement.
.
F. Transportation/Cartage insurance all risk. Coverage must include loading,
transportation and unloading of the Artwork . If the Artwork is to be loaded, transported
or unloaded by a person or entity other than the Art Agency , the insurance coverage
must cover that person or entity. The minimum limit shall be the total amount of
compensation paid to Art Agency through the date of loading under Exhibit B .
G. All Risk Installation insurance which covers physical damage to or destruction of
the Artwork . If the Artwork is to be installed by a person or entity other than the Art
Agency , the insurance coverage must cover that person or entity. The minimum limit
shall be the total amount of compensation paid to the Art Agency through the date of
the beginning of the installation of the Artwork under Exhibit B .
H. Worker’s Compensation and Employers’ Liability insurance in accordance with
the statutory requirements of the State of ___________________ providing coverage for
any and all employees of Art Agency . The Art Agency shall require all subcontractors
to carry this coverage also. The minimum coverage for the Worker’s Compensation and
Employers’ Liability insurance shall be $100,000.00.
I. If, however, the Art Agency does not have any employees as defined by state
statutes and regulations and does not wish to cover himself for Worker’s Compensation,
the Art Agency shall sign the following statement:
“I do not have, nor intend to have for the full term of this Agreement, any employees.
Furthermore, I do not wish to obtain or be covered under any Worker’s Compensation
insurance coverage and, therefore, am signing this statement in lieu of providing the above
require Worker’s Compensation coverage.”
______________________________
Name of Art Agency
By: _________________________
Corporate Officer
J. The requirement for Worker’s Compensation and Employers’ Liability insurance
shall be waived in writing upon submission of this signed statement by the Art Agency to the
Public Agency .
K. Art Agency will be responsible for obtaining Professional Errors and Omissions
coverage for services provided by licensed engineers and architects with a general aggregate
limit of $1,000,000.00 and for assuring engineers and other experts have appropriate
Professional Errors and Omissions coverage or name them as additional insured’s to the policy
of the Art Agency .
Witness our signatures this the _____ day of ______________, 20____.
_____________________________ ___________________________
Name of Municipality Name of Art Consultant
By_______________________________ By___________________________
Official signing on behalf of Municipality
Corporate Officer
