PAN contract

ANNOTATED MODEL PUBLIC ART

COMMISSION AGREEMENT

JUNE 2005

prepared by the

Public Art Network Council Services Committee

Marc Pally, artist and public art consultant

Los Angeles, CA

Jill Manton, Public Art Program Director

San Francisco Arts Commission

San Francisco, CA

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ANNOTATED MODEL PUBLIC ART COMMISSION

AGREEMENT

JUNE 2005

Contents

Introduction 2

Disclaimer 2

Annotated Agreement for the Commission of Public Artwork 3

Appendix 1 – Insurance Overview 34

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Introduction

A contract is the cornerstone of the understanding and agreement between an agency or individual

commissioning a work of public art and the artist creating the commissioned public art. As the field of

public art has grown and matured over the last several decades, various local, state and federal laws

regulating contractual agreements have become increasingly sophisticated, complicated and at times

difficult to navigate. As a result, public art commissioning agreements, or contracts, have also grown

subsequently more complex.

This annotated model agreement addresses many of the most current requirements and considerations of a

contractual agreement to commission a work of art and is provided as a service to the field. This document

provides discussion of a number of issues and points typically found in a commission agreement and is

intended primarily as a reference and educational resource.

This annotated model agreement has been developed by the Services Committee of the Public Art Network

(PAN), a program of Americans for the Arts. Special thanks to PAN Council Member and artist Marc Pally

who took the lead on this project and who worked closely with PAN Service Committee members Jill

Manton and attorney William Gignilliat. Thanks to Greg Esser, Public Art Network Manager, and Renee

Piechocki, former Public Art Network Manager, for work on this sample agreement. For drafting the

agreement, extra special thanks to Christine Steiner, an experienced arts attorney in the Los Angeles area

who was ably assisted by Cassandra Chan and Sureka Weinberg, students from Loyola Law School, Los

Angeles. We are grateful for their legal assistance and guidance.

This document is a “work-in-progress” and is not intended to be definitive or comprehensive. Comments,

suggestions and other feedback regarding this document are welcome. Such feedback will be reviewed

periodically by the Services Committee of the PAN Council for possible inclusion in future updates of this

document. To provide feedback, please e-mail [email protected]g.

Reading This Agreement

Model commission agreement language appears in Roman text. Discussion is italicized and is meant to

present additional information and interpretation regarding the preceding contract section. The use of

[brackets] indicates options or optional language that may apply only in certain situations, or variables that

are subject to negotiation and/or determination by and between the commissioning agency and the

commissioned artist.

Disclaimer

This Annotated Model Public Art Commission Agreement is made available as a service from Americans for

the Arts. Use of this document, or any of its terms and conditions, is wholly voluntary and within the

discretion of the contracting parties. This Agreement does not constitute legal advice or create an attorney-

client relationship. Americans for the Arts does not warrant the legal efficacy of any term or condition, or

of the Agreement as a whole. The law is different from State to State and is subject to varying

interpretations by courts.

Both artists and commissioning agencies are advised and encouraged to seek independent legal counsel

before entering into a binding agreement. For legal assistance, contact an attorney. A local branch of the

Volunteer Lawyers for the Arts may be able to provide assistance in identifying attorneys familiar with the

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requirements of a public art commission agreement. Additional legal resources and information may also

be obtained by contacting your local or state bar association.

THIS AGREEMENT, is entered into this ____ day of _____________, 20___, by and between

[name of city, state, federal agency or public foundation] (hereinafter the “Agency”), acting by and through

the [appropriate department or council] with offices at

______________________________________________________, and [artist’s name or artist’s name

d.b.a. business name] (hereinafter the “Artist”) with offices at

______________________________________________________.

WHEREAS, the Agency has implemented [name of art program] pursuant to [applicable local, state

or federal laws, ordinances and/or regulations, and/or funding source] by allocating [amount or type of

funding] for the establishment and display of artwork in public places; and

WHEREAS, authority lies with the Agency to make payments for the [acquisition, design execution,

fabrication, transportation, and/or installation] of artworks, including payments for the support of an artist

[selection process, design, execution and/or placement of Art]; and

WHEREAS, the Artist is a recognized artist whose work and reputation make the Artist uniquely

qualified to create the Artwork; and

WHEREAS, the Artist was selected by the Agency through [commissioning method or selection

procedure] adopted by the Agency to [design, execute, fabricate and/or install] the Artwork, as described

in Exhibit 1 in a public space located at __________________________________ (hereinafter the “Site”);

and

WHEREAS, the Artist and Agency wish to undertake the obligations expressed herein;

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

1.1 Artist’s Obligations

a. The Artist shall perform all services and furnish [all supplies, material and/or equipment (specify if

not all)] as necessary for the design and fabrication of the Artwork at the Site in accordance with

the specified schedule. Services shall be performed in a professional manner and in strict

compliance with all terms and conditions in this Agreement.

b. The Artist shall determine the artistic expression, design, dimensions and materials of the Artwork,

subject to review and acceptance by the Agency as set forth in this Agreement. To ensure that the

Artwork as installed shall not interfere with the intended use of the Site, pedestrian and other

traffic flow, parking, and safety devices and procedures at the Site, the Artist’s proposal shall be

reviewed and approved by the Agency or Commission, other applicable city departments such as

Public Works or Parking and Traffic and, where appropriate, the project architect to ensure

compliance with these objectives.

c. The Artist shall prepare the design concept and the corresponding budget described in Section 1.3

AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK

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of this Agreement. The design concept shall include a description of all materials and products

utilized in the Artwork and the required routine care and upkeep involved.

d. Artist shall attend public information meetings with the general public, attend design and

construction coordination meetings with Agency, general contractor, architect and other parties, as

appropriate, to communicate about the Artwork and to ensure appropriate integration and/or

installation of the Artwork.

e. The Artist shall complete the fabrication of the Artwork by the scheduled installation date as

provided in Section 1.4(b)(i) of this Agreement.

f. The Artist shall secure any and all required licenses, permits and similar legal authorizations at the

Artist’s expense as may be necessary for the installation and maintenance of the Artwork at the Site.

g. The Artist shall arrange the transportation and installation of the Artwork in consultation with the

Agency. If the Artist does not install the Artwork himself or herself, Artist shall supervise and

approve the installation.

h. Artist shall provide required insurance in amounts and limits specified in Article 6 and Exhibit 4.

i. Artist shall provide a list of all subcontractors along with a copy of the agreement between the

Artist and each subcontractor.

j. Artist shall provide a maintenance manual with a description of all materials and products utilized

in the Artwork and the required care and upkeep involved.

k. Artist shall provide photographic documentation of the Artwork.

l. Artist shall be available with reasonable advance notice for meetings, ceremonies and the like, as

necessary.

1.2 Agency’s Obligations

a. The Agency shall perform all obligations in strict compliance with all terms and conditions in this

Agreement.

b. The Agency shall be responsible for providing the Artist, at no expense to the Artist, copies of

existing designs, drawings, reports, list of required permits, and other existing relevant data, if any,

which is needed by Artist in order to perform.

c. The Agency shall be responsible for compliance with all applicable laws and regulations, including

but not limited to zoning or environmental regulations, and shall explain any limitations imposed

by such laws and/or regulations to the Artist.

d. The Agency shall prepare the Site in accordance with the specifications detailed in the approved

design concept in Section 1.3 of this Agreement. The 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 Agency shall complete the Site preparations by the scheduled

installation date as provided in Section 1.4(b)(i) of this Agreement or shall contact the Artist in

writing informing him or her of any delays.

e. The Agency shall provide and install a plaque on or near the Artwork containing a credit to the

of publication].

f. The Agency shall not permit any use of the Artist’s name or misuse of the Artwork which would

reflect discredit on the Artist’s reputation as an artist or which would violate the spirit of the

Artwork, should such use or misuse be within the Agency’s control.

g. The Agency shall be responsible for leading the Artist through the required review process. The

Agency shall be responsible for organizing and scheduling meetings with review entities, [listed

here, for example, Art Commission, community boards, etc.] and for providing the Artist written

instructions for the materials required at such meetings.

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Discussion

The roles of the Artist, Agency and any agents (such as architects, structural engineers or general

contractors) should be defined in detail. The traditional role of the Artist is that of a designer, fabricator, installer,

and supervisor. It is in the best interest of the Agency to consult with a conservator to assess the maintenance and

anticipated longevity of the Artist’s proposal and its ability to endure at the site.

This Agreement assumes that the Artist will furnish the materials and arrange the transportation and

installation of the Artwork. The nature of a particular agreement may define different obligations. For example, the

Agency might be expected to provide all supplies, materials and/or equipment; or, for example, the Artist might be

expected to prepare the site for installation of the Artwork.

For major construction projects, the Parties may need to retain architects, engineers, general contractors or

landscape architects. This Agreement should specify whether the Agency or the Artist engages such experts, and the

obligations of such experts should be specified in a separate agreement.

Under section 1.2(d), the Agency is responsible for preparation of the Site and all costs associated therewith.

However, some of these costs may be included in the budget described in Section 1.4(a) of this Agreement. The

Parties should clearly state the duties and costs each assumes in relation to the Site preparation.

This Agreement assumes that the Artist secures the required licenses, permits and similar legal

authorizations with Agency assistance on applicable laws, and list of required permits and other regulations. As the

Agency is more likely to be familiar with such requirements, the Agency or a project manager appointed by the

Agency should advise the Artist regarding such matters. Agency staff may serve as an advocate and liaison with

other departments or jurisdictions involved with the project. The Parties may instead arrange for a third party

agent familiar with the process to research the laws and secure the permits.

1.3 Design

a. Concept/Schematic

i. The Artist submitted a design concept/schematic (the “Design”) with an accompanying

budget, pursuant to a competition organized for the procurement of an Artist to design and

fabricate an Artwork suitable for the current project, which Design was selected and approved by

the Agency. The Design and Budget shall be attached to this Agreement as Exhibit 1 and Exhibit 2

respectively.

b. Approval

i. Within ___ days after the execution of this agreement, the Agency shall notify the Artist if it

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.

ii. Once the Agency has approved the Design, the Agency will schedule the presentation of the

Design to the required approval bodies [ List Here]. If the approval bodies require any revisions to

the Design, the Agency will submit those in writing to the Artist. The Artist will have ____ days to

comply with such revisions. If agreed upon by both parties, such revisions will become a part of

the Design.

c. Final/Construction Documents

i. The Artist shall prepare structural drawings detailing every physical feature of the

construction of the Artwork and its integration with the Site. These drawings shall indicate

any risks involved in the construction, integration and maintenance of the Artwork, as well as any

third party subcontractors needed to work on the project.

ii. Where appropriate, the Artist shall present such drawings to a qualified engineer, licensed

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by the state and paid by the Artist, for certification that the Artwork will be of adequate structural

integrity and the Artist shall provide the Agency with such 5certification.

iii. Where appropriate, the Artist shall present the Design to a qualified conservator, who will

make recommendations on the maintenance of the Artwork, and the Artist shall provide a written

copy of the conservator’s recommendations to the Agency.

a. Concept/Schematic

i. The Artist was selected pursuant to a competition organized for the procurement of an artist

to design and fabricate a Artwork suitable for the current project. Within ____ days of the

execution of this Agreement, the Artist shall submit to the Agency the design concept (the

“Design”) in the form of [detailed color drawings, models, and/or other documents] as are required

to present a meaningful representation of the Artwork.

ii. The Artist shall visit, examine, research and consider the Site and surrounding area. If

applicable, the Artist shall also consult with representatives of the community and consider their

input and concerns.

iii. The Design will include: a description of the method by which the Artwork is to be

fabricated and installed; a description of any operational, maintenance and conservation

requirements for the Artwork; a description of the placement of the Artwork at the Site and any site

preparations that may be required by the Agency including, but not limited to, any changes or

modifications to any utility system or structure of the Site as necessary.

iv. The Design must provide sufficient detail to permit the Agency to assure compliance with

applicable local, state or federal laws, ordinances and/or regulations.

v. The Artist shall attach to the Design a detailed budget for the design, fabrication and

installation of the Artwork, including costs for Site preparation, as described in Section 1.4(a) of

this Agreement.

b. Approval

i. Within [____] days after the Artist submits the Design, the Agency shall notify the Artist

whether it approves or disapproves of the Design. The Agency shall have discretion in approving

outright or with conditions, or rejecting the Design. The Agency shall notify the Artist of any

revisions to the Design as are necessary for the Artwork to comply with any applicable laws,

ordinances and/or regulations and 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 accepted Design.

ii. If the Agency disapproves of the Design, the Agency will submit to the Artist in writing the

reasons for such disapproval. In such event, the Artist will submit a Revised Design within [____]

days after the Agency has notified the Artist of its disapproval. The Artist [will] [will not] be paid

an additional fee for the Revised Design.

c. Redesign

i. The Revised Design will reflect changes made to address the Agency’s stated reasons for

disapproval, as well as any adjustments in the budget or schedule that may be necessary. The

Agency shall notify the Artist in writing whether it approves or disapproves of the revised Design

within [____] days after the Artist submits the revised design.

ii. If the Artist refuses to revise the Design pursuant to Section 1.3(b)(ii), or if the Artist fails to

adequately revise the Design in the judgment of the Agency, this Agreement shall terminate and the

parties shall be under no further obligation to each other as of the date of such termination. The

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effective date of termination shall be the date the Agency submits its written disapproval of the

Revised Design to the Artist. The Agency shall submit to the Artist a written termination notice

with the disapproval. The termination notice shall advise the Artist that this Agreement has been

terminated pursuant to this Article. The termination notice shall notify the Artist that the Artist is

entitled to retain the compensation paid prior to the termination date, and that the Parties are

under no further obligation to each other. The termination notice shall confirm that the Artist shall

retain ownership of all Designs, Revised Designs and renderings thereof submitted hereunder.

d. Final/Construction Documents

i. The Artist shall prepare structural drawings detailing every physical feature of the

construction of the Artwork and its integration with the Site. These drawings and supplementary

documents shall indicate any issues involved in the construction, integration and maintenance of

the Artwork, as well as any third party subcontractors needed to work on the project.

ii. Where appropriate, the Artist shall present such drawings to a qualified engineer, licensed

by the state and paid by the Artist, for certification that the Artwork will be of adequate structural

integrity and the Artist shall provide the Agency with such certification, signed and stamped by the

licensed engineer.

iii. Where appropriate, the Artist shall present the Design to a qualified conservator, who will

make recommendations on the maintenance of the Artwork and the Artist shall provide a written

copy of the conservator’s recommendations to the Agency.

Discussion

In the Design or Revised Design, the Artist addresses structural considerations, surface integrity,

permanence, and protection against theft and vandalism. If the Artwork is designed to be site-specific, the Artist

should also include in the description any part of the surrounding area or site which is to be considered part of the

Artwork.

The Agency will require that any structural drawings be certified by a qualified engineer, licensed by the

state and paid by the Artist as part of the design cost, stating that the Artwork will be of adequate structural

integrity (including foundation loads, wind loads, and potential live loads) to ensure the safety and welfare of

Agency officers, employees, agents, servants, and the general public. Such drawings will conform to all applicable

federal, state and local laws and regulations.

1.4 Budget, Payment Schedule, Construction Schedule and Progress Reports

a. Budget

i. The Artist 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 2.

ii. 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.

iii. The Artist shall keep a log of the Artist’s project hours and shall retain all original receipts

pertaining directly to the project.

iv. If the Artist incurs costs in excess of the amount listed in the budget, the Artist shall pay

such excess from the Artist’s own funds unless the Artist previously obtained approval for such

costs from the Agency (or such costs were the result of actions or inaction of the Agency).

b. Schedule

i. The Artist shall notify the Agency of the tentative schedule for the fabrication and

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installation of the Artwork, including a schedule for the submission of progress reports and

inspections if any. The Schedule may be amended by written agreement.

ii. A schedule for the payment of budget installments is attached to this Agreement as Exhibit 3.

Discussion

The budget includes itemized costs for materials, the applicable sales tax for such materials; off-site

fabrication costs; the Artist’s time for coordination, fabrication, supervision of the installation; fees for required

licenses, permits, and similar legal authorizations; fees for the labor of assistants; itemized general contractor and

subcontractor fees if applicable; consultants’ or experts’ fees (such as engineers, architects or others) if applicable;

insurance; Artist’s travel; transportation of the Artwork to Site; itemized installation costs; any applicable local,

state or federal taxes; and a [x]% contingency to cover unforeseen costs that may arise. The contract should identify

a formula for dispersing sums in the event that there are unused monies from the contingency allocation.

This is not an exhaustive list of expenses to be included in the budget. There may be other costs depending

on the nature of the project. The project architect/contractor, if there is one, should advise the Artist on the possible

range of some of the costs as well as vendor sources and costs for displaying the Artwork such as framing, lighting,

footing, pedestals, seismic retrofitting, extended warranties on media components or mechanical devices. Although

the budget is usually a fixed amount, typically 1% of the construction costs for the project, it is necessary to itemize

the expenses as the Agency dictates what costs are eligible to be included in the budget as well as how much of the

budget may be spent on a particular expense.

The Artist may be tempted to reflect conservative cost estimates in the budget to gain approval, but cost

overruns may be incurred by the Artist, leaving the Artist with little to no profit, or even worse debt. It is the Artist’s

responsibility to account for all costs in the budget to avoid cost overruns. The Artist should be encouraged to

describe the costs as realistically as possible. It is advisable for the Artist to properly estimate costs to allow for

room for unforeseen expenses. The artist should submit written cost estimates from qualified fabricators for the

production of the Artwork.

The Agency has a role in budgeting as well, including the negotiation of construction credits from the Site’s

budget to the Artist’s budget. This budgeting function is particularly important for projects which are integrated into

the construction documents and/or can be considered as value-added enhancements above and beyond standard

landscape and/or structural elements. Also, if the construction budget for the Site increases, the Agency should be

responsible for negotiating whether or not the budget for the Artwork increases as well.

The schedule should clearly state dates by which each stage, duty, or service under this Agreement ought to

be completed. For example, the Artist may indicate that the Artwork will be completed by week 50 after the

execution of this Agreement and that inspection for final approval of the Artwork must occur by week 51. The

schedule binds both Parties, but may be adjusted upon the reasonable request of one of the Parties.

Other parties involved in the project (such as a Department or Agency, general contractor or an architect),

if any, should also receive copies of the schedule. If the Site has not yet been constructed it will be necessary to

insure proper coordination with all involved parties. Typically, it is the Project Manager who will coordinate

schedule planning with other parties. The Project Manager should arrange regularly scheduled project coordination

meetings including the general contractor, Artists, other city departments, architect, etc. As construction of the Site

progresses, the Parties should keep each other informed of any changes in the schedule for construction of the Site

or in the plans or layout of the Site.

1.5 Fabrication Stage

a. The Artist shall fabricate [and install] the Artwork in substantial conformity with the Design. The

Artist may not deviate from the approved design without written approval of the Agency.

b. The Artist shall take reasonable measures to protect or preserve the integrity of the Artwork such as

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The application of protective or anti-graffiti coatings, if applicable, unless the Agency

disapproves. If the Artwork is being constructed on-site, the Artist shall avoid creating nuisance

conditions arising out of the Artist’s operations. Prior to requesting authorization to transport and

install the Artwork, the Artist shall be required to provide the Agency with a list of all workers or

subcontractors and equipment to be used along with the hours of operation and the scope of work

to be performed on site. All additional workers or subcontractors must provide proof of insurance

prior to entering the site.

c. The Agency shall have the right to review the Artwork at reasonable times during the fabrication

thereof upon reasonable notice.

d. If the Agency, upon review of the Artwork, determines that the Artwork does not conform to the

Design or Revised Design, the Agency reserves the right to notify the Artist in writing of the

deficiencies and that the Agency intends to withhold the next budget installment.

e. The Artist will promptly cure the Agency’s objections and will notify the Agency in writing of

completion of the cure. The Agency shall promptly review the Artwork, and upon approval shall

release the next budget installment. If the Artist disputes the Agency’s determination that the

Artwork does not conform, the Artist shall promptly submit reasons in writing to the Agency

within [____] days of the Agency’s prior notification to the contrary. The Agency shall make

reasonable efforts to resolve the dispute with the Artist in good faith. However, final determination

as to whether the Artist has complied with the terms of this Agreement shall remain with the

Agency.

f. The Artist shall notify the 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. The Agency shall inspect the Artwork within [___] days after receiving notification pursuant to

paragraph (f), prior to installation, to determine that the Artwork conforms with the Design and to

give final approval of the Artwork. The Agency shall not unreasonably withhold final approval of

the fabricated Artwork. In the event that the Agency does withhold final approval, the Agency shall

submit the reasons for such disapproval in writing within [____] days of examining the fabricated

Artwork. The Artist shall then have [___] days from the date of the Agency’s notice of the

disapproval to make the necessary adjustments to the fabricated Artwork in accordance with such

writing. The Artist shall not be penalized for any delay in the delivery and installation of the

Artwork to the Site unless the Artist has willfully and substantially deviated from the Design

without the prior approval of the Agency. The Artist shall then be held responsible for any

expenses incurred in correcting such deviation.

h. The Agency shall promptly notify the Artist of any delays impacting installation of the Artwork.

Any additional storage fees incurred as a result of such delays are the responsibility of the Agency.

The Artist shall be required to inspect the Site prior to the transportation and installation of the

Artwork and shall notify the Agency of any adverse Site conditions that will impact the installation

of the Artwork which are in need of correction.

Discussion

Paragraph (h) is easily understood when delays are caused by acts of the Agency and/or Agency’s Agents.

When delays are caused by third parties, i.e. unexpected street widening or sewer repair undertaken by local

government, the costs of delay should be born by the Agency which is in a better position to negotiate with public

agencies and would be in contact with them.

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1.6 Changes to Design

a. Prior to the execution of any change in the approved design, Artist shall present proposed changes

in writing to the Agency for further review and approval. The Artist must provide a detailed

description of any significant changes in the artistic expression, design, dimensions and materials of

the Artwork that is not permitted by nor in substantial conformity with the already approved

design. Such notice will also include a detailed description of any additional costs that may be

incurred or changes in the budget. A significant change is any change which materially affects

installation, scheduling, site preparation or maintenance of the Artwork or the concept of the

Artwork as represented in the Design.

b. If the Agency approves the changes, the Agency shall promptly notify the Artist in writing. The

Agency will also make the required presentations to the approval bodies [List here].

c. If the Agency disapproves of the changes, the Agency shall promptly notify the Artist in writing and

the Artist shall continue to fabricate the Artwork in substantial conformity with the Design.

d. The Artist’s fee shall be equitably adjusted for any increase or decrease in the Artist’s cost of, or time

required for, performance of any services under this Agreement as a result of revisions made to the

Design under Section 1.6(a). Any claim of the Artist for adjustment under this paragraph must be

asserted in writing within ___ days after the date of the revision by the Artist.

Discussion

Paragraph (a) recognizes that the Artist’s creativity should not be inhibited, but at the same time, the Artist

must recognize that public art commissions are subject to changes in design for a variety of factors.

Changes in the plans or layout of the Site may require modifications to the Design. This is especially true in

instances where the Artwork is embedded in the Site, such as when the Artwork is a floor or staircase of a building.

The Agency and Artist should consult regarding such modifications to the Design and to the budget. Changes to the

accepted proposal must generally be presented in writing and reviewed and approved by the commissioning Agency.

The Artist should retain any receipts, invoices, a journal, or other documents illustrating any additional

expense incurred as a result of the revisions. The date of the revision should be defined clearly.

1.7 Installation

a. Upon the Agency’s final approval of the fabricated Artwork, as being in conformity with the

Design, the Artist shall deliver [and install] the completed Artwork to the Site in accordance with

the schedule provided for in Section 1.4(b). Transportation fees shall be paid by the

[__________indicate Agency or Artist].

b. The Artist will coordinate closely with the Agency to ascertain that the Site is prepared to receive

the Artwork. Artist must notify Agency of any adverse conditions at the Site that would effect or

impede the installation of the Artwork. The Artist is responsible for timely installation of the

Artwork. The Artist will confer and coordinate with the Agency to ensure timely coordination with

the Agency’s construction team. Artist may not install the Artwork until authorized to do so by the

Agency.

c. The Artist shall be present to supervise the installation of the Artwork.

d. Upon written acceptance of the installation, the Artwork shall be deemed to be in the custody of

the Agency for purposes of Article 4 and Article 6 of this Agreement.]

e. Within [____] days after installation of the Artwork, the Artist shall furnish the Agency with the

following photographs of the Artwork as installed:

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[The parties may identify documentation such as:

i) two sets of three 35 mm color slides of the completed Artwork, one taken from each of

three different viewpoints;

ii) Two sets of three different 8” x 10” glossy black and white prints of the Artwork and

negatives;

iii) A set of three digital, 300 dpi, JPG or TIFF files, of the Artwork, provided to the Agency on

a CD Rom.] Photographs must be labeled with the name of the Artwork, the date upon which the

photograph was taken, and the viewpoint from which the photograph was taken. The Artist shall

also furnish the Agency with a full written narrative description of the Artwork.

f. Upon installation of the Artwork, the Artist shall provide the Agency with written instructions for

the appropriate maintenance and preservation of the Artwork along with product data sheets for

any material or finish used. The Artwork must be durable, taking into consideration that the Site is

an unsecured public space that may be exposed to elements such as weather, temperature variation,

and considerable movement of people and equipment. Artist must ensure that all maintenance

requirements will be reasonable in terms of time and expense. The Agency is responsible for the

proper care and maintenance of the Artwork.

Discussion

Section 1.7 identifies the Party responsible for the installation. The duties and obligations of the Parties

should be clearly defined.

Section 1.7(d) should only be included in this Agreement if the Artist arranges for the transportation and

installation of the Artwork as during this time the Artwork will be in the custody of the Artist. If the Agency

arranges and pays for the installation, the Agency will already have custody of the Artwork prior to installation.

However, even if the Agency arranges for the transportation and installation of the Artwork, the Artist should be on

Site to supervise the installation to ensure proper installation in conformity with the Design. If the Artist is a

member of a design team and the Artwork is constructed on the Site, the Artist’s role in Site supervision,

construction and installation should be described in detail.

The photographic documentation referred to in paragraph (e) is usually required for archival purposes and

the photographs to be submitted will depend on the requirements of the Agency.

The period of maintenance under Section 1.7(e) is assumed to be the life of the Artwork. However, this

period may be negotiated by the Parties. For example, the Agency may mandate a period of life for the overall

project. The Parties may agree that the period of maintenance for the Artwork be the same as that of the project. As

artists begin to use more innovative materials and techniques which have not yet been tested by time, the Parties

may wish to negotiate a specified period of time for maintenance of the Artwork, such as the life of the project, after

which the Agency has the right to relocate, transfer, or destroy the Artwork. If the Agency determines that, through

decay, vandalism or other forces, the Artwork has lost its integrity to the point where it should be destroyed, the

Agency shall first offer the Artwork to the Artist at the City’s cost to destroy the work or the cost to collect and

remove the work.

1.8 Approval and Acceptance

a. The Artist shall notify the 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.

b. The Agency shall promptly notify the Artist of its final acceptance of the Artwork within ____ days

after the Artist submitted written notice pursuant to paragraph (a) above. The effective date of final

acceptance shall be the date the Agency submits written notice to the Artist of its final acceptance

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of the Artwork. The final acceptance shall be understood to mean that the Agency acknowledges

completion of the Artwork in substantial conformity with the Design, and that the 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 passes upon final acceptance and final payment.

c. If the Agency disputes that all the services have been performed, the Agency shall notify the Artist

in writing of those services the Artist has failed to perform within ____ days after the Artist

submitted written notice pursuant to paragraph (a) above. The Artist shall promptly perform those

services indicated by the Agency.

d. If the Artist disputes the Agency’s determination that not all services have been performed, the

Artist shall submit reasons in writing to the Agency within ___ days of the Agency’s prior

notification to the contrary. The Agency shall make reasonable efforts to resolve the dispute with

the Artist in good faith. However, final determination as to whether all services have been

performed shall remain with the Agency.

e. Upon the resolution of any disputes that arise under paragraphs (c) and (d) of this

section, the Agency shall notify the Artist of its final acceptance of the Artwork pursuant to

paragraph (b).

f. After final acceptance of the Artwork, the Artist shall be available at such time(s) as may be

mutually agreed upon by the Agency and the Artist to attend any public meetings and community

outreach functions, as well as any inauguration or presentation ceremonies relating to the

dedication of the Artwork.

i. During such public presentations by the Artist, the Artist shall acknowledge the Agency’s

role in funding the Artwork.

ii. The Agency shall be solely responsible for coordinating public information materials and

activities related to public presentations.

Discussion

It is important that disputes be adequately resolved because upon final acceptance, ownership of the

Artwork is transferred to the Agency; the insurance obligations transfer to the Agency; the Agency becomes

responsible for maintenance of the Artwork; the warranties of quality and condition described in Section 5.2 of this

Agreement begin; and this Agreement shall terminate.

Paragraph (f) acknowledges that the Agency may wish to include the Artist in any educational program it

has as part of its public art program to educate the public regarding the Artwork, and to facilitate and encourage

communication between the Artist and the community. The Agency should state under paragraph (f) any such dates

or events such as lectures and art walks upon which the Agency and the Artist have agreed.

Article 2 Taxes

Any state or federal sales, use or excise taxes, or similar charges relating to the services and

materials under this Agreement shall be paid by the Artist in a timely fashion. The Agency shall report

payments made to the Artist annually to the Internal Revenue Department in a 1099 statement.

Article 3 Term of Agreement

a. 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 Agency under Section 1.8(b), or submission of final payment to the Artist by the Agency

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under Exhibit 3, 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 under

section 1.4(b)(i). (which is attached as Exhibit 2?)

b. Force Majeure

The Agency shall grant to the Artist a reasonable extension of time in the event that conditions

beyond the Artist’s control render timely performance of the Artist’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.

Discussion

If the Parties negotiate terms and obligations to be conducted after final acceptance, the term of the

Agreement shall be adjusted accordingly.

Examples of conditions beyond the reasonable control of the Artist are natural disasters, labor strikes and

war. These examples are merely suggestive, and not to be deemed exclusive. The Parties may wish to address

additional terms if these are of concern, e.g., disability, unavailability, death of Artist.

Article 4 Risk of Loss

The Artist shall bear the risk of loss or damage to the Artwork until the Agency’s final acceptance of

the Artwork under Section 1.8(b). The Artist shall take such measures as are reasonably necessary to

protect the Artwork from loss or damage. The 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 Agency or its agent(s) for the purposes of transporting, storing,

installing or performing other services to the Artwork.

Discussion

It is customary for the Artist to bear the risk of loss as any services performed on or in relation to the

Artwork are performed by the Artist or under the Artist’s supervision. The Parties may agree that the Agency bear

the risk of loss or damage to the Artwork prior to final acceptance if the partially or wholly completed Artwork is in

the custody, control or supervision of the Agency or its agent(s) for the purposes of storing, installing on-Site or

performing other services to the Artwork.

Article 5 Artist’s Representations and Warranties

5.1 Warranties of Title

The Artist represents and warrants that:

a) the Artwork is solely the result of the artistic effort of the Artist;

b) except as otherwise disclosed in writing to the Agency, the Artwork is unique and original and does

not infringe upon any copyright or the rights of any person;

c) the Artwork (or duplicate thereof) has not been accepted for sale elsewhere;

d) the Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Artwork

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or any element thereof or any copyright related thereto which may affect or impair the rights

granted pursuant to this Agreement;

e) the Artwork is free and clear of any liens from any source whatsoever.

f) all Artwork created or performed by the Artist under this Agreement, whether created by the Artist

alone or in collaboration with others, shall be wholly original with the Artist and shall not infringe

upon or violate the rights of any third party.

g) the Artist has the full power to enter into and perform this Agreement and to make the grant of

rights contained in this Agreement.

h) all services performed hereunder shall be performed in accordance with all applicable laws,

regulations, ordinances, etc. and with all necessary care, skill, and diligence.

i) these representations and warranties shall survive the termination or other extinction of this

Agreement.

5.2 Warranties of Quality and Condition

a. The Artist 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 [one] year after the date of final acceptance by the Agency under Section 1.8(b).

b. The Artist represents and warrants that the Artwork and the materials used are not currently

known to be harmful to public health and safety.

c. The Artist 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 Artist pursuant to Section 1.7(f).

d. If within [one] year the Agency observes any breach of warranty described in this Section 5.2 that

is curable by the Artist, the Artist shall, at the request of the Agency, cure the breach promptly,

satisfactorily and consistent with professional conservation standards, at no expense to the Agency.

The Agency shall give notice to the Artist of such breach with reasonable promptness.

e. If after [one] year the Agency observes any breach of warranty described in this Section 5.2 that is

curable by the Artist, the Agency shall contact the Artist to make or supervise repairs or

restorations at a reasonable fee during the Artist’s lifetime. The Artist shall have the right of first

refusal to make or supervise repairs or restorations. Should the Artist be unavailable or unwilling to

accept reasonable compensation under the industry standard, the Agency may seek the services of a

qualified restorative conservator and maintenance expert.

f. If within [one] year the Agency observes a breach of warranty described in this Section 5.2 that is

not curable by the Artist, the Artist is responsible for reimbursing the Agency for damages,

expenses and loss incurred by the Agency as a result of the breach. However, if the Artist disclosed

the risk of this breach in the Proposal and the Agency accepted that it may occur, it shall not be

deemed a breach for purposes of this Section 5.2 of this Agreement.]

g. Acceptable Standard of Display. Artist represents and warrants that:

i. General routine cleaning and repair of the Artwork and any associated working parts

and/or equipment will maintain the Artwork within an acceptable standard of public display.

ii. 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 of public display.

iii. With general routine cleaning and repair, and within the context of foreseeable exposure

to the elements and general wear and tear, the Artwork will not experience irreparable

conditions that do not fall within an acceptable standard of public display, including mold, rust,

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fracturing, staining, chipping, tearing, abrading and peeling.

iv. Manufacturer’s Warranties. To the extent the Artwork incorporates products covered by a

manufacturer’s warranty, Artist shall provide copies of such warranties to the Agency.

The foregoing warranties are conditional, and shall be voided by the failure of the Agency to

maintain the Artwork in accordance with the Artist’s specifications and the applicable conservation

standards. If the Agency fails to maintain the Artwork in good condition, the Artist, in addition to other

rights or remedies the Artist may have in equity or at law, shall have the right to disown the Artwork as the

Artist’s creation and request that all credits be removed from the Artwork and reproductions thereof until

the Artwork’s condition is satisfactorily repaired.

Discussion

The length of the warranty should take into account the nature of the Artwork, the type of materials and

methods used with respect to the Artwork, the conservation record of similar Artworks in similar environments, the

period of time during which defects are likely to manifest themselves, the cost of the Artwork and the potential

liability involved. Typically the warranty is for one year. However, a longer or shorter period of time may be

negotiated depending on the nature of the project.

The Artist’s aesthetic choices and goals might be at odds with the Agency’s concerns over maintenance and

conservation of the Artwork. For example, the materials or equipment that the Artist chooses may be untested or

unproven, or might not age in a traditional way. Thus, the Artist should provide a written disclosure of factors that

may be at odds with the conservation goals in the Proposal, so that the Agency can make an informed evaluation of

the impact of the Artist’s choices on the standard warranties. The Agency may also wish to consult with an

independent expert to evaluate the materials and techniques used in the Artwork prior to acceptance.

It is particularly important for the Agency to do this in light of varying environmental conditions which may

affect materials differently and possibly more adversely under some conditions than others.

Most standard fine arts insurance policies will not cover damage or loss of value sustained as a result of a

defect or inherent vice in an Artwork. Defects in design and materials can result in a decrease or total loss in value

of the Artwork, expenses for conservation of the Artwork to rectify defects, and even liability for personal injury.

Insurance policies will also not cover normal “wear and tear” costs on an Artwork, which are considered

continuing expenses of upkeep undertaken in conservation and maintenance. Thus, the Agency should keep in mind

any extraordinary conservation procedures or high-cost maintenance factors.

Article 6 Insurance

6.1 General

a. The Artist acknowledges that until final acceptance of the Artwork by the Agency under Section

1.8(b), any injury to property or persons caused by the Artist’s Artwork or any damage to, theft of,

vandalism to, or acts of God affecting the Artist’s Artwork are the sole responsibility of the Artist,

including, but not limited to, any loss occurring during the creation, storage, transportation or

delivery of the Artist’s Artwork, regardless of where such loss occurs.

b. Terms for the procurement and duration of insurance are provided in Exhibit 4.

c. Required insurance policies are described in Exhibit 4.

6.2 Indemnity

a. The Artist shall indemnify the 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 Artist, its subcontractors, agents or

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employees.

b. The Agency shall indemnify the Artist, Artist’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 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.

Alternate Language: Artist shall indemnify, protect, defend and hold harmless the Agency and its

subdivisions, officials, employees and agents (each a “Covered Person”) from and against all

liabilities, obligations, losses, damages, judgments, costs or expenses (including legal fees and costs

of investigation) (“collectively “Losses”) arising from, in connection with or caused by: (a) any

personal injury or property damage caused, directly or indirectly, by any act or omission of Artist;

or (b) any infringement of patent, copyright, trademark, trade secret or other proprietary right

caused by Artist. Notwithstanding the foregoing, Artist shall have no obligation under this Section

with respect to any Loss that is caused solely by the active negligence or willful misconduct of the

Covered Party and is not contributed to by any act or omission (including any failure to perform

any duty imposed by law) by Artist. Artist acknowledges and agrees that its obligation to defend in

this Section: (i) is an immediate obligation, independent of its other obligations hereunder; (ii)

applies to any Loss which actually or potentially falls within the scope of this Section, regardless of

whether the applicable allegations are or may be groundless, false or fraudulent; and (iii) arises at

and continues after the time the Loss is tendered to Artist.

Discussion

There are two types of indemnification provisions suggested. Only one should be selected. In the first

alternative, the Parties have a mutual duty of indemnification. In the second, the Artist indemnifies the Agency. A

suitable compromise if the Agency insists on broad indemnification may be for the Artist to agree to indemnify the

Agency only in the instance of an adverse judgment and/or for the Artist’s liability to not exceed the limits of the

liability of the insurance policies required to be maintained by the Artist under this Agreement. Many of the risks

associated with construction projects are assumed by licensed professionals such as architects and engineers who,

through their licensed status are able to obtain Professional Liability Insurance that covers Errors and Omissions.

The Artist, through subcontracting work to these professionals, may benefit from their insurance coverage.

Article 7 Ownership and Intellectual Property Rights

7.1 Title

Title to the Artwork shall pass to the Agency upon the Agency’s written final acceptance and

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payment for the Artwork pursuant to Section 1 and Exhibit 5. Artist shall provide Agency with a Transfer

of Title in substantially the form attached hereto as Exhibit 5.

7.2 Ownership of Documents

One set of presentation materials prepared and submitted under this Agreement shall be retained

by the Agency for possible exhibition and to hold for permanent safekeeping.

Discussion

Section 7.2 recognizes the public’s interest in documenting the history of the Artwork for archival purposes.

An example of a commissioning body sharing this purpose would be the General Services Administration (GSA).

Design concepts submitted to the GSA becomes the sole property of the United States government and may be

conveyed to the National Museum of American Art for exhibiting purposes and permanent safekeeping. Depending

on the circumstances, however, the commissioning body may negotiate for ownership of all [studies, drawings,

designs, maquettes and models] submitted by the artist, or elect to return such materials to the Artist.

7.3 Copyright Ownership

The Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. § 101 et seq., as the sole

author of the Artwork for the duration of the copyright.

Discussion

The duration of copyright in the United States is currently the life of the author plus 70 years.

7.4 Reproduction Rights

a. In view of the intention that the final Artwork shall be unique, the Artist shall not make any

additional exact duplicate [three]-dimensional reproductions of the final Artwork, nor shall the

Artist grant permission to others to do so except with the written permission of the Agency.

However, nothing shall prevent the Artist from creating future Artworks in the Artist’s manner and

style of artistic expression.

b. The Artist grants to the Agency and its assigns an irrevocable license to make two-dimensional

reproductions of the Artwork for non-commercial purposes, including, but not limited to,

reproductions used in brochures, media publicity, and exhibition catalogues or other similar

publications provided that these rights are exercised in a tasteful and professional manner.

c. All reproductions by the Agency shall contain a credit to the Artist and a copyright notice in

d. The Artist shall use the Artist’s best efforts in any public showing or resume use of reproductions to

give acknowledgment to the Agency in substantially the following form: “an original Artwork

commissioned by and in the public art collection of the Agency.”

e. The Artist shall, at the Artist’s expense, cause to be registered with the United States Register of

Copyrights, a copyright in the Artwork in the Artist’s name.

f. If the Agency wishes 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 Artist and the royalty the Artist shall receive.

g. Third Party Infringement. The Agency is not responsible for any third party infringement of Artist’s

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Discussion

Section 7.4 protects the Agency’s legitimate interest in not having the Artist reproduce identical Artworks for

others and permits the Agency to reproduce the Artwork for noncommercial purposes. At the same time, the artist

has the right to create future Artworks that include the style, form, “feel,” and themes embodied in the Artwork.

The Agency may also require that the Artist shall not, during the performance of this Agreement,

disseminate publicity or news releases regarding the Artwork without prior written approval of the Agency.

Article 8 Artist’s Rights

8.1 General

a. The Artist retains all rights under state and federal laws including §106A of the Copyright Act of

1976.

b. The Agency agrees that it will not intentionally alter, modify, change, destroy or damage the

Artwork without first obtaining permission from the Artist.

c. If any alteration or damage to the Artwork occurs, the Artist shall have the right to disclaim

authorship of the Artwork in addition to any remedies the Artist may have in law or equity under

this contract. Upon written request, the Agency shall remove the identification plaque and all

attributive references to the Artist at its own expense within [___] days of receipt of the notice. No

provision of this Agreement shall obligate the Agency to alter or remove any such attributive

reference printed or published prior to the Agency’s receipt of such notice. The Artist may take

such other action as the Artist may choose in order to disavow the Artwork.

Discussion

The protections afforded by the

Visual Artists’ Rights Act

, that is, §106A of the Copyright Act of

1976, apply to objects. The applicability of the Visual Artists’ Rights Act to objects that are integrated into the Site

is determined on a case-by-case basis.

The

Visual Artists’ Rights Act

states:

“The author of a work of visual art shall have the right:

1. to claim authorship of that Artwork, and to prevent the use of his or her name as the

author of any work of visual art which he or she did not create.

2. to prevent the use of his or her name as the author of the work of visual art in the event

of a distortion, mutilation, or other modification of the work which would be prejudicial to

his or her honor or reputation; and

3. to prevent any intentional distortion, mutilation, or other modification of that work

which would be prejudicial to his or her honor or reputation, and any intentional distortion,

mutilation, or modification of that work is a violation of that right; and to prevent any

destruction of a work of recognized stature, and any intentional or grossly negligent

destruction of that work is a violation of that right.”

Some, but not all, states may have also passed legislation independent of the Visual Artists’ Rights Act to

protect the rights of visual artists. For example:

The

New York Authorship Rights Act

provides as follows:

“No person other than the artist or a person acting with the artist’s consent shall knowingly display

in a place accessible to the public or publish a work of fine art or limited edition multiple of not

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more than 300 copies by that artist or a reproduction thereof in an altered, defaced, mutilated or

modified form if the work is displayed, published or reproduced as being the work of the artist, or

under circumstances which would reasonable be regarded as being the work of the artist, and

damage to the artist’s reputation is reasonably likely to result therefrom.”

The

California Art Preservation Act

prohibits intentional “physical defacement, mutilation,

alternation or destruction of a work of fine art.”

In addition, if the work is to be installed, attached or incorporated within a structure, the Parties should

determine at the outset whether it is considered a part of the building or a separate work of art. Generally, works

that are part of a building can be photographed (or otherwise represented) by third parties such as commercial

photographers, film companies, and the like, without copyright violation, whereas separate works require the

require a broad license to reproduce the work.

[Option I]

8.2 Alterations of Site or Removal of Artwork

a. The Agency shall notify the Artist of any proposed significant alteration of the Site that would affect

the intended character and appearance of the Artwork. The Agency shall make a good faith effort to

consult with the Artist in the planning and execution of any such alteration. The Agency shall make

a reasonable effort to maintain the integrity of the Artwork.

b. The Agency agrees not to arbitrarily remove or relocate the Artwork without first making a good

faith effort to contact the Artist. The Artist shall not unreasonably withhold approval of removal or

relocation of the Artwork. Should the Artist agree to such removal or relocation, the Artist shall

provide the Agency with written handling instructions. In the event that the Artist is deceased or

unable to otherwise give the Artist’s consent, the current owner of the copyright of the Artwork

shall not unreasonably withhold permission, keeping in mind the intentions of the Artist at the

time of commission and fabrication.

[OR]

[Option II]

8.2 Alterations of Site or Removal of Artwork

a. The Agency shall notify the Artist 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 Artist 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 Agency, the Artist may disavow the Artwork

or have the Artwork returned to the Artist at the Artist’s expense.

b. The Artwork may be removed or relocated or destroyed by the Agency should the Artist and the

Agency not reach mutual agreement on the removal or relocation of the Artwork after a period not

to exceed [90] days after written notice to the Artist. During the [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 Agency may authorize the removal or

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relocation of the Artwork without the Artist’s prior permission. In the alternative, the Agency may

commission the Artist by a separate agreement to make any necessary changes to the Artwork to

render it in conformity with such codes, laws or regulations.

d. If the Agency reasonably determines that the Artwork presents imminent harm or hazard to the

public, other than as a result of the Agency’s failure to maintain the Artwork as required under this

Agreement, the Agency may authorize the removal of the Artwork without the prior approval of the

Artist.

e. This clause is intended to replace and substitute for the rights of the Artist under the 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.

Discussion

Section 8.2 takes into consideration that the Artwork is site-specific. Site-specific means that the Artist

designed the Artwork specifically to displayed at a particular Site and only that Site. The meaning of the Artwork is

directly tied into the Site. A change in location of the Artwork may alter the its meaning as imagined by the Artist

or alter the Artist’s statement as imbued in the Artwork.

The two alternative options provided above in Section 8.2 take into consideration that the Agency, such as a

public university, may insist on an unencumbered right to remove, relocate or destroy the Artwork to ensure that

any current or future construction at the Site is not hindered.

Article 9 Permanent Record

The Agency shall maintain on permanent file a record of this agreement and of the location and

disposition of the Artwork.

Article 10 Artist as an Independent Contractor

The Artist agrees to perform all Artwork under this Agreement as an independent contractor and

not as an agent or employee of the Agency. The Artist acknowledges and agrees that the Artist shall not

hold himself or herself out as an authorized agent of the Agency with the power to bind in any manner.

The Artist shall provide the Agency with the Artist’s Tax Identification Number and any proof of

such number as requested by the Agency.

Discussion

Some municipalities require that all workers be paid prevailing union wages, which is a minimum hourly

wage established by statute to be paid to employees. Artists must be aware of any such requirements so that they

can take them into account in the preparation of a feasible budget.

Article 11 Nondiscrimination

The Artist shall not discriminate, in any way, against any person on the basis of race, sex, color, age,

religion, sexual orientation, disability, ethnicity, or national origin, in connection with or related to the

performance of this Agreement.

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Article 12 Assignment of Artwork

The Artwork and services required of the Artist are personal and shall not be assigned, sublet or

transferred. Any attempt by the Artist 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 Agency. The Agency

shall have the right to assign or transfer any and all of the Agency’s rights and obligations under this

Agreement, subject to the Artist’s consent, if ownership of the Site is transferred; if the Artist refuses to give

consent, this Agreement shall terminate.

Article 13 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 operations; superior governmental regulation or

control, public emergency or strike or other labor disturbance. 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 Agency may terminate this Agreement without cause upon [____] days written notice to the

Artist. The Agency shall pay the Artist for services performed and commitments made prior to the

date of termination, consistent with the schedule of payments set forth in Exhibit 3 of this

Agreement. The Artist shall have the right to an equitable adjustment in the fee for services

performed and expenses incurred beyond those for which the Artist has been compensated to date

under Exhibit 3 with allowance for lost opportunities, unless the parties come to a settlement

otherwise.

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 Artist defaults [for cause other than death or incapacitation], the Artist shall return to the

Agency all funds provided by the Agency in excess of expenses already incurred. The Artist shall

provide an accounting. All finished and unfinished drawings, sketches, photographs and other

Artwork products prepared and submitted or prepared for submission by the Artist under this

Agreement shall be retained by the Artist.

[The Agency [shall] retain the right to have the Artwork

completed, fabricated, executed, delivered and installed.

] However, the Artist shall retain the

e. If the Agency defaults, the Agency shall promptly compensate the Artist for all services performed

by the Artist prior to termination. The Agency shall pay the Artist for services performed and

commitments made prior to the date of termination, consistent with the schedule of payments set

forth in Exhibit 3. The Artist shall have the right to an equitable adjustment in the fee for services

performed and expenses incurred beyond those for which the Artist has been compensated to date

with reasonable allowance for lost opportunities. The Artist shall retain possession and title to the

[studies, drawings, designs, maquettes and models] already prepared and submitted or prepared for

submission to the Agency by the Artist under this Agreement prior to the date of termination.

f. Upon notice of termination, the Artist and his subcontractors shall cease all services affected.

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Discussion

Failure to pay an installment constitutes a violation of this Agreement in accordance with paragraph (e) of

Article 13.

Services performed beyond those for which the Artist has been compensated to date are services the Artist

has performed, after receiving a payment installment for services previously performed, but performed prior to the

forthcoming installment.

The Artist should keep track of the number of hours the Artiste has expended in performance of this

Agreement in addition to expenses incurred in the performance of this Agreement in the event that a dispute arises

as to the amount of compensation that is equitable for the services performed beyond those for which the Artist has

been compensated to date and for additional expenses the Artist has incurred in performance of this Agreement

such as the purchase of materials.

[Article 14 Death or Incapacity

If the Artist becomes unable to complete this Agreement due to death or incapacitation, such death

or incapacity will not be deemed a breach of this Agreement or a default on the part of the Artist for the

purpose of Article 13. However, nothing in this Article shall obligate the Agency to accept the Artwork.

a. In the event of incapacity, the Artist shall assign the Artist’s obligations and services under this

contract to another artist provided that the , in the Agency’s sole discretion, approves of the new

artist. Alternatively, the Agency may elect to terminate this Agreement. The Artist shall retain all

rights under Article 7 and Article 8. The Artwork and any reproductions thereof shall contain a

name, date of publication].

b. In the event of death, this Agreement shall terminate effective the date of death. The Artist’s heirs

shall retain all rights under Article 6 and Article 7. [The Artist’s executor shall deliver to the Agency

the Artwork in whatever form or degree of completion it may be at the time. Title to the Artwork

shall then transfer to the Agency. However, the Artwork shall not be represented to be the

completed Artwork of the Artist unless the Agency is otherwise directed by the Artist’s estate.]

Article 15 Notices and Documents

Notices required under this Agreement shall be delivered personally or through the [registered or

certified mail, return receipt requested] mail, postage prepaid, to the addresses stated below, or to any

other address as may be noticed by a Party:

For the Agency: [Agency]

[mailing address]

[City, State, Zip]

For the Artist: [Artist]

[mailing address]

[City, State, Zip]

Notice shall be deemed effective on the date personally delivered or, if mailed, [three (3) days] after

the postmarked date.

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Article 16 Waiver

The Parties agree that a waiver of any breach of 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 of condition.

Article 17 Audit

The Agency shall maintain records of all documents, notices, checks, and other records required or

produced under this Agreement or related thereto. The Artist agrees to the maintenance of such records for

archival purposes. Such records shall be made available for inspection or audit, at any time during regular

business hours, upon written request by [the City Attorney, City Auditor, City Manager, or a designated

representative of any of these officers]. Copies of such documents shall be provided to the Agency for

inspection when it is practical to do so. Access to such records and documents shall also be granted to any

Party authorized by the Artist, the Artist’s representatives, or the Artist’s successors-in-interest. The Agency

will comply with any open records law applicable to these records.

Discussion

Some jurisdictions require the Artist to maintain all such records. In this case the Artist is generally required

to maintain the records for a period of 3 years from the date of acceptance or the date final payment is made.

Those records that are subject to an audit shall be maintained until the audit is resolved, even if this period extends

beyond the 3 years stated.

Article 18 Conflict of Interest

The Artist and the Agency shall avoid all conflicts of interest or appearance of conflicts of interest in

the performance of this Agreement.

Article 19 Arbitration

If, during the creation of the Artwork, its installation and subsequent existence, either Party

breaches this Agreement, each Party agrees to submit to arbitration upon the request of the other provided

that the breach is not cured within a reasonable time under paragraph (c) of Article 13.

If an ambiguity arises regarding this Agreement upon which the parties cannot agree or a dispute

arises as to the completion of a provision, the Parties shall submit to [arbitration] [mediation].

Each Party agrees to be responsible for its own attorney’s fees except as otherwise provided by

statute.

Discussion

Arbitration is a type of alternative dispute resolution. It is done in lieu of filing an action in court. An

advantage may be that it is less time consuming than a lawsuit. However, there are drawbacks that must be

considered such as fees which can potentially be more than the filing fee of a lawsuit and that arbitration decisions

are often final whereas a lawsuit judgment can be appealed.

There are also alternative dispute mechanisms, such as mediation, in which a third party aids in negotiating

a settlement (as opposed to delivering a judgment as in arbitration or a lawsuit). An example of a dispute resolution

clause is as follows:

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“Any controversy or claim arising out of or relating to this Agreement, or the breach of this Agreement, is

subject to mediation. If an ambiguity arises regarding this Agreement upon which the parties cannot agree or a

dispute arises as to completion of a provision, the parties shall submit to mediation. A Party desiring mediation

shall give notice (containing a general description of the controversy) to the other Party and designating by name

and address a mediation service. The other Party shall agree to use the mediation service unless within five (5) days

from the date of said notice they select and provide the service including the name and address of a second

mediation service. The selected mediation service shall mediate the dispute between the parties.

a. Any claim, controversy, dispute or other matter in question arising out of or related to this Agreement, or

the breach of this Agreement, shall be subject to mediation as a condition precedent to arbitration or the

institution of legal or equitable proceedings by either Party in any court. If the matter relates to or is the

subject of a lien arising out of the Artist’s services, the Artist may proceed in accordance with applicable law

to comply with the lien notice or filing deadlines prior to resolution of the matter by mediation or by

arbitration.

b. The Agency and the Artist shall endeavor to resolve claims, controversies, disputes and other matters in

question between them by mediation which, unless the parties mutually agree otherwise, shall be in

accordance with Mediation Rules of the American Arbitration Association currently in effect. A Party

desiring mediation shall give notice (containing a general description of the controversy) to the other Party

who shall within 3 business days provide a written response. The parties shall then meet with no more than

one representative present to advise them for not less than one hour to determine if they can resolve the

dispute through direct discussion. If the meeting does not resolve the dispute, each shall submit to the other

Party within 3 days of their meeting a confidential written proposal for settlement. If they still cannot agree

on the resolution to the dispute, the Party first requesting mediation shall designate by name and address a

qualified mediator or mediation service which the other Party shall accept within 3 business days or the

parties shall agree to use another mediation service, and if they cannot agree either may file for mediation

in writing with the other Party to this Agreement and with the American Arbitration Association within 5

business days. The selected or AAA designated mediation service shall mediate the dispute between the

parties.

c. A Party’s request for mediation may be made concurrently with the filing of a demand for arbitration but,

in that event, mediation shall proceed in advance of arbitration or legal or equitable proceedings, which

shall be stayed pending mediation for a period of ninety (90) days from the date of filing, unless stayed for

a longer period by agreement of the parties or court order.

d. The Parties shall share equally the mediator’s fee and costs of mediation including any filing fees. Each

Party agrees to be responsible for their own attorney’s fees except as otherwise provided herein or by

statute. The mediation shall be held in the place where the artwork is located, unless another location is

mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in

any court having jurisdiction thereof.

e. Nothwithstanding any provision of this Agreement to the contrary, any damage award to a Party on

account of a Party’s breach of this Agreement, with the exception of the Artist’s duty under Article 6 to

procure and maintain insurance, shall not exceed an amount equal to the sum of the payments in Exhibit 3.”

Article 20 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 21 Conflicts of Law

If any term, covenant, condition or provision of this Agreement, or the application thereof to any

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person or circumstance, shall be held by a court of competent jurisdiction or arbitration panel or

mediation procedure to be in conflict with the laws, rules, and/or regulations of the United States or the

State of [_____________], invalid, void or unenforceable, the remainder of the terms, covenants,

conditions or provisions of this Agreement, or the application thereof to any person or circumstance, shall

remain in full force and effect and shall in no way be affected, impaired or invalidated thereby to the extent

the remainder of the terms, covenants, conditions or provisions of this Agreement are capable of execution.

Discussion

The Parties should keep in mind that the laws of any jurisdiction do evolve and change over time. While

this is unlikely to happen during the duration of this Agreement, those provisions which survive the termination or

expiration of this Agreement may be affected or become in conflict with the current law(s). Inability of one of the

Parties to comply with one of the provisions of this Agreement due to a change in the law should not be considered a

breach of that provision or of this Agreement.

Article 22 Choice of Law

This contract shall be governed by the laws of the State of [___________] both as to interpretation

and performance.

Discussion

This provision is important because artists and owners can be from different states, and states can have

very different laws governing the provisions of a particular contract which may be more or less favorable to one

Party or the other.

Conditions for choice of law might include: where the agreement was made, where the artwork is fabricated,

where the artwork is installed, where most of the performance of the agreement occurred, who had bargaining

power, or if there is a governing contract provision.

Article 23 Entire Agreement

This Agreement, including the exhibits, comprises all of the covenants, promises, agreements, and

conditions between the parties. No verbal agreements or conversations between the Parties prior to the

execution of this Agreement shall affect or modify any of the terms or obligations.

For Agency: For Artist:

____________________ ____________________

Name Name

____________________ ____________________

Title Title

____________________ ____________________

Date Date

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Exhibit 1

Description of the Artwork

[This exhibit should provide a detailed narrative describing the proposed artwork with explicit detail

regarding the overall form or design, scale, dimensions, color, and surface treatment of the Artwork.]

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Exhibit 2

Artwork Budget

[The estimated budget for the proposed artwork should be inserted here. The following sample budget

worksheet is a guide to some of the costs the budget might include.]

SAMPLE BUDGET WORKSHEET

The following sample budget worksheet, provided by the Phoenix Office of Arts and Culture, is intended

to assist artists in planning and developing an estimated budget for public art projects. The following

worksheet is intended as a guide only and is not necessarily inclusive of all costs which may be incurred

when undertaking a public art project. Not all costs listed will pertain to every project. A contingency of

ten percent (10%) of the project total is highly encouraged to cover unexpected costs. The artist’s fee is

generally 15%–20% of the total project budget for design and fabrication projects. This fee may vary based

on the actual work undertaken by the artist and according to the experience and reputation of the artist.

The fee is generally intended to cover the creative work of the artist in developing the project concept. The

fee is separate from and does not cover the artist’s labor if the artist is responsible for fabrication of the

project. Eligible project costs may vary from program to program.

ARTIST FEE (suggested 15%–20% of total project budget)

FINAL DESIGN DEVELOPMENT

Includes final proposal, engineering and/or architectural documents, budget and schedule.

Hourly fee for design

Engineering

TRAVEL

Airfare

Car Rental

Per Diem

INSURANCE

(not all insurance is required for each project)

twork

Inland Marine

General Liability

Workers’ Compensation

Automobile/Hired Vehicle

PROFESSIONAL CONSULTANT FEES

chitect

Structural Engineer

Electrical Engineer

Conservator

Other

(Consultants must be licensed in the State of Arizona)

ADMINISTRA

TIVE EXPENSES

Shop Drawings and Contract Documents

Studio Costs

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Cor

respondence

Phone/Fax

Artist Resource Guide i Page 11

Supplies

Project Documentation (in progress and completed)

MATERIALS AND SUPPLIES

(itemize all anticipated aspects and components with per unit and total cost estimates)

FABRICATION COSTS

(include and itemize all portions of subcontracted work and work to be completed by artist)

SITE PREPARATION

(do not include costs covered by the Agency or others)

TRANSPORTATION

Materials and finished work to the site

Storage

Other

INSTALLATION COSTS

Labor

Equipment (crane, scaffolding, or other)

Base or Mounting Devices and Components

Traffic Barricades/Control

Off-duty police

Landscaping

Site Restoration

Electrical modifications

ADDITIONAL LIGHTING

Design

Fixtures

Bulbs

Site Preparation

Installation

PERMITS

AND

AXES

Sales Tax

Use T

Development Ser

vices Per

mit

OTHER COSTS

CONTINGENCY

(suggested 10% of project total)

TOTAL

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Exhibit 3

Payment Schedule

The Agency shall pay the Artist a fixed fee of $___________________, which shall constitute full

and complete compensation for all the services performed and materials furnished by the Artist 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 materials provided prior to payment

thereof:

a. __________ upon the execution of this Agreement, recognizing that the Artist will invest time and

expense in preparing the Design as set forth under Section 1.3;

[b. __________ upon submission of the Design as set forth under Section 1.3;]

[c. __________ upon the Agency’s notification to the Artist of its approval of the Design as set forth

under Section 1.3;]

d. __________ within ____ days after the Artist notifies the Agency that the Artwork is fabricated and

ready for delivery and installation at the Site as set forth under Section 1.5(f);

[e. __________ within ____ days after the Artist provides the Agency with photographic

documentation and written instructions for the maintenance and preservation of the Artwork as set

forth under Section 1.7(e) and (f).]

f. __________ upon [or within ____ days after] final acceptance of the Artwork by the Agency as set

forth under Section 1.8(e).

Discussion

The installment payments can also be expressed as a percentage of the fixed fee. Some jurisdictions may

desire that the Artist submit an invoice for each installment.

Where the Agency and the Artist share the expense of materials or labor, the installments may be prorated

as the expenses are incurred. The Artist may also submit invoices to the Agency in such cases at specified intervals

to be reimbursed a specified number of days after the Artist submits the invoice.

Under paragraph (d), the Agency may desire to compensate the Artist after the Agency has approved the

Artwork.

The Parties may specify a period of time after which an installment must be submitted. This takes into

consideration that the Agency may desire time to inspect and approve goods and services; unless the bid

specification, purchase order, or contract specifies otherwise. This is in recognition of the fact that the Agency may

have to deliver a request for payment (voucher) to a separate financing office, department, or entity. The imposition

of an interest penalty may be desired to ensure that the Agency promptly conducts whatever inspection is desired

and processes the installment.

A sample interest provision is:

“If payment of an installment has not been made to the Artist within ___ days of the stated date of

payment for each respective installment without cause, a separate interest penalty of [.03333]% per day will be due

and payable, in addition to the invoice amount, to the Artist. Interest penalties of less than $1 will not be enforced.”

Where the Agency requires that the Artist submit an invoice for payment, invoices which have to be

returned to the Artist because of preparation errors may result in delay in payment, and should not be subject to an

interest penalty. Invoice payment requirements do not start until a properly completed invoice is provided to the

Agency.

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Sample Payment Schedule:

Payment Amount Percentage of Total

1 $1,000 10%

2 $3,000 30%

3 $3,000 30%

4 $2,000 20%

5 $1,000 10%

Total Amount Not To Exceed $10,000 100%

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Exhibit 4

Insurance

Insurance – General

a. The Artist shall procure and maintain for the duration of this Agreement, at the Artist’s expense,

insurance in the kinds and amounts as provided in this Exhibit 4 with insurance companies

authorized to do business in [name of city or state]. The required insurance shall cover the Artist’s

employees, agents, contractors or subcontractors. The Agency, its officials, employees, agents and

contractors shall be named as additional insureds. The coverage shall contain no special limitations

on the scope of protection afforded to the Agency, its officials, employees, agents and contractors.

b. The duration of the general liability insurance described in Exhibit 4 shall extend for ___ years

after the termination of this Agreement.

c. The Artist and the Artist’s subcontractors’ insurance coverage shall be the primary insurance as

respects the Agency, its officials, employees, agents and contractors. Any insurance or self-insurance

maintained by the Agency, its officials, employees, agents and contractors shall be in excess of the

Artist’s or the Artist’s subcontractors’ insurance and shall not contribute with the Artist’s or the

Artist’s subcontractors’ insurance. The coverage shall state that the Artist’s or the Artist’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.

d. Prior to undertaking any Artwork under this Agreement, the Artist, at no expense to the Agency,

shall furnish to the Agency a certificate of insurance with original endorsements affecting coverage

for each of the insurance policies provided in Exhibit 4. 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 Artist 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 Artist has obtained insurance in the type, amount, and

classification as specified in Exhibit 4 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

Agency. Each certificate shall indicate that the subcontractors are additional insureds or the Artist

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 insureds.

e. Any deductibles or self-insured retentions must be declared to, and approved by, the Agency. At the

option of the Agency, either: the insurer shall reduce or eliminate such deductibles or self-insured

retentions as respects the Agency, its officials, employees, agents and contractors; or the Artist shall

procure a bond guaranteeing payment of losses and related investigations, claim administration and

defense expenses in the amount of $[___________].

f. Despite any changes to or cancellation of insurance, the Artist remains responsible for maintaining

the required insurance coverage for the duration of the Agreement.

g. Failure of the Artist 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.

[h. Should the Artist not be able to secure acceptable insurance coverage, the Agency may place

coverage at cost to the Artist on behalf of the Artist on a project basis.]

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Insurance Policies

a. Commercial General Liability insurance policy, written on an occurrence form, including all the

usual coverages known as:

i) premises / operations liability

ii) products / completed operations

iii) personal / advertising injury

iv) contractual liability

[v) broad-form property damage]

[vi) independent contractor’s liability]

Said policy must provide the following minimum coverage:

i) $[1,000,000] combined single limit per occurrence for bodily injury, personal injury and

property damage.

ii) $[1,000,000] annual aggregate

b. Automobile liability insurance policy, including coverage for owned, non-owned, leased or hired

vehicles, providing the following minimum coverage:

i) bodily injury liability of $[50,000] for each person,

ii) $[300,000] per occurrence,

iii) property damage liability of $[25,000] for each occurrence.

The Artist agrees to keep in good standing a valid driver’s license at all times, where appropriate,

during the term of this Agreement.

[c. 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 Artist, the insurance coverage must cover that person or entity. The minimum

limit shall be the total amount of compensation paid to Artist through the date of loading under

Exhibit 3.]

[d. 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 Artist, the insurance coverage

must cover that person or entity. The minimum limit shall be the total amount of compensation

paid to Artist through the date of the beginning of installation of the Artwork under Exhibit 3.]

[e. 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 Artist. The Artist 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]. If, however, the Artist does not have any employees as defined by state statutes and

regulations and does not wish to cover himself or herself for Worker’s Compensation, the Artist

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.”]

_______________________________

(Artist’s signature)

_______________________________

(Print Artist’s name)

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Exhibit 5

Transfer of Title

STATE OF _______________

COUNTY OF______________

TRANSFER OF TITLE

FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged, the

undersigned Artist located at the address noted below does hereby sell, transfer and convey to the Agency,

located in , , its assigns and successors, all right, title and interest in the ownership

of the Artwork commissioned by Agreement of ___________and as described therein.

itle:_______________________.

Location:____________________.

IN WITNESS WHEREOF, Artist has executed this written transfer of title on this the ____

day of _________________, 20__.

________________________

WITNESS ARTIST

________________________

Sworn to and subscribed ADDRESS

before me this ____ day

of ______________, 20__.

SOC. SEC. NO.____________

NOTARY PUBLIC

My Commission Expires:

(NOTARY SEAL)

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Appendix 1 – Insurance Overview

PUBLIC ART CONTRACTS: PROTECTIONS AGAINST LOSS

Provided by the Public Art Network Services Committee

Prepared by the San Francisco Arts Commission

and the City of San Francisco Risk Manager

Introduction

Governmental agencies and other “deep pocket” organizations are frequently the target of lawsuits because

of their considerable assets. Such organizations tend to be zealous in requiring specific contractual

guarantees as well as insurance and bond coverage in order to minimize their risk of loss.

This document is provided as a service to the public art field in order to aid in the understanding of Risk

of Loss, and the common forms of protection against loss. It covers standard contractual language along

with definitions of Insurance, Bonds, and some of the associated clauses associated with Risk of Loss,

including Hold Harmless, Incidental and Consequential Damages and Indemnification. The contract

language is taken from the City of San Francisco’s standard contract. Descriptions are based on information

provided by San Francisco’s Risk Manager. The laws and practices of other states and local agencies may

vary considerably from this standard.

The document includes:

A definition of Risk of Loss, which is the justification for certain contract language as well as all insurance

and bonds.

Insurance and bonding requirements to be found in most public art contracts, with descriptions and

explanations of when the insurance or bond is required, why it is needed and whom or what it protects.

Explanations of the legal concepts of Hold Harmless, Incidental and Consequential Damages, and

Indemnification.

Standard insurance certificate and endorsement, annotated.

Please consider this as a starting point. We invite further comments, additions and questions.

I. RISK OF LOSS DETERMINES INSURANCE AND BOND REQUIREMENTS

The type and amount of Insurance Coverage or Bonding is determined by assessing the risk of loss, or

potential liability. The risk will be more for an artwork fabricated far from the installation site, transported

across the country and installed in a thirty-foot ceiling, than for an artwork of the same dollar value that is

assembled on site and installed on a floor. Similarly, the liability may be different depending upon the type

of work being undertaken: fabrication, transportation or installation. In most situations, it will be the

responsibility of an agency’s Risk Manager to assess the level of risk.

Rules of thumb in deter

mining risk:

The more people involved the more risk. (For instance, an artist working with many subcontractors incurs

more risk than if working alone in the studio.)

Risk is generally higher during transportation or movement.

The value of a public artwork is generally considered the cost of the contract.

Risk is also determined by whether one can afford the loss.

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Risk Transfer

Once the risk of loss has been determined, then the question becomes how to transfer the risk to

someone else besides the contracting Agency. Risk of loss can be transferred through a bond, through

insurance and/or through an indemnification clause. The risk may be transferred to the Artist or a

bonding company. Artists can and should transfer the risk further, to their subcontractors, by requiring

them to abide by the terms of their contract with respect to liability and to obtain insurance that names

the art project and/or the Artist and the Agency as Additional Insureds.

II. INSURANCE

Insurance coverage protects the financial assets of the policy holder, or Named Insured (the Artist), as well

as any other party when the policy is endorsed to name that party as Additional Insured. Coverage does not

limit an Artist’s liability with respect to Indemnification. (See section on indemnification, below).

In order to prove the existence of the required insurance, Artists and their Subcontractors are required to

submit copies of Insurance Certificates and separate Endorsements naming the Agency and all of its

employees, agents and assigns, as well as any others to be covered as Additional Insureds. (See examples

below).

Many public art contracts require that Artists and/or their subcontractors carry the following types of

insurance coverage:

Worker’s Compensation

“Workers Compensation Insurance, in statutory amounts with Employers’ Liability Limits not

less than $1,000,000 each accident. Artist shall obtain such insurance prior to certification of

this Agreement. To the extent Artist warrants, in writing, that Artist is not an employer and has

no employees as defined by the [STATE] Labor Code Sections [SECTION #], Artist need not

provide to the City proof of Workers Compensation insurance.”

Discussion

In most States, State Law requires that every individual or company that has even a single employee must

carry Worker’s Compensation Insurance to cover job-related injuries or illness. The IRS has final authority

over whether a worker is or is not an employee. Many contracts allow the Artist to submit a letter stating

that she or he has no employees in order for this provision to be waived.

This insurance protects Agencies because an employee of an Artist or his Subcontractor doing business with

the Agency can file a Workers’ Compensation Claim against the Agency should the employer go out of

business, not carry coverage or become bankrupt. The employee must have been injured while performing

work under the Artist’s contract.

Professional Liability Insurance

“Professional Liability Insurance for all design professionals (such as architects, landscape

architects or engineers) who provide Artist with any signed stamped drawing or calculations.

Such insurance shall have limits not less than $1 million for each claim with respect to

negligent acts, errors and omissions, and any deductible may not exceed $50,000 each claim.

Artist or Artist’s subcontractors shall obtain such insurance when Artist subcontracts for any

work from such a design professional, and prior to the submittal of Construction Documents.

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Any design professional required to obtain professional liability insurance must maintain proof

of insurance for the term of this Agreement.”

Discussion

This insurance protects both Artists and Agencies in the event that a design professional or other worker

makes an error or omission that causes the failure of the artwork or installation. Design professionals

commonly carry Professional Liability Insurance. It is standard in the business. Agencies may require others

to carry a similar type of insurance known as Errors and Omissions Insurance, which can be costly,

although the coverage limits may be modified based on the perceived level of risk. The insurance certificate

must name to the specific art project in order for the policy to cover it. If not project specific, insurance

companies will pay up to a total amount of coverage for either one or multiple claims but no further.

General Liability Insurance

“General Liability Insurance with limits not less than $1,000,000 each occurrence Combined

Single Limit for Bodily Injury and Property Damage, including Contractual Liability, Personal

Injury, Products and Completed Operations. Artist shall obtain such insurance prior to

fabricating, transporting or installing the Work at the Site.”

Discussion

General Liability Insurance is typically required after the completion of design, as fabrication is

commenced, and is maintained through the completion of the project. This insurance is typically carried by

both the Artist and the Artist’s subcontractors, whether or not the Artist has actual care and control of the

Artwork during the subcontractor’s work. Agencies may also require that the insurance remain in force for

several years after project completion to cover possible failure of the Artwork. The insurance covers

operations, which could harm the public, such as property damage or bodily injury. It protects both the

Artist and the Agency from financial loss in the event of a claim for damages due to physical injury or

damage to property such as a cut caused by a sharp edge or spilled paint during installation. Specific

policies will vary in the types of coverage that they provide. Coverage categories may include, but are not

limited to:

Contractual Liability, Personal Injury, Broadform coverage of Real Property, Collapse or

Explosion, Work performed by Subcontractors, Products and Completed Operations, and

Intellectual Property.

Liability Insurance can be on an occurrence policy basis, meaning that the insurance covers all of the

contractors’ activities that occur during anytime the policy is or was in force, or a claims made basis, which

limits filing claims only to the policy year and claims must be reported within that policy year. Agencies

prefer that insurance be on an occur

rence form, rather than a claims made form, although the former may

be difficult to obtain.

Agencies and Artists are covered by Liability Insurance only if the Insurance carrier issues a document

endorsing the policy to name the Agency and Artist as Additional Insureds.

Automobile Liability Insurance: If Artist is an individual, Personal Automobile Liability Insurance with

limits not less than $100,000/$300,000 each occurrence. If Artist or Artist’s Subcontractor is a corporation

or other legal entity, Business Automobile Liability Insurance with limits not less than $1,000,000 each

occurrence Combined Single Limit for Bodily Injury and Property Damage, including Owned, Non-Owned

and Hired auto coverage, as applicable, unless a lesser amount is approved by City’s Risk Manager. Artist

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shall obtain such insurance prior to certification of this Agreement.

Discussion

This insurance covers both Agencies and Artists. If an Artist or Subcontractor is using a vehicle to perform

contract-related work, even if it is only to attend project meetings, any accident caused could be linked to

the project. A claim could be made against both the Agency and the Artist. Many insurance companies will

not name an Agency as additional insureds on personal automobile liability policies and may not provide

personal liability coverage beyond 100,000 to $300,000. In San Francisco, we were able to revise our

contract through discussion with the Risk Manager to allow only personal liability insurance if the Artist is

an individual and not a business.

Property (Fine Arts) Insurance, or Insurance Against Loss

“Fine Arts Insurance or other insurance against loss in an amount to be specified in a

subsequent contract modification. Artist shall obtain such insurance prior to commencing

fabrication of the Artwork.”

Discussion

Many Agencies provide progress payments to assist Artists with the costs of producing the artwork prior to

its completion and acceptance by the Agency. If the work is lost, damaged or stolen while in the care of the

Artist, Property Insurance, if properly endorsed, would recompense the Agency, which would determine the

disposition of the funds to either restore, replace or abandon the Artwork. Subcontractors who carry this

insurance would protect the assets of both the Artist and the Agency by naming them as Additional

Insureds.

There are four types of policies covering real and personal property: basic form, broad form, special form

and all risks. The first two cover named perils only, while the third covers any direct damage not

specifically excluded. The fourth covers any direct damage not specifically excluded and provides the

broadest coverage. Most Agencies require special form or all-risk insurance.

III. BONDS

In California, any public works contract in excess of $25,000 requires a Labor and Materials Bond.

Agencies can make the distinction between an artwork that is considered a “public works project” if the

artwork provides an essential component of a building without which it cannot function. Examples of such

functional work would include a door, gate, glass wall, or floor. Individual stand alone artworks do not

generally require bonds. Few Artists and small contractors have the assets and organizational infrastructure

required to obtain a bond. As an alternative, they may pledge material assets to the Agency that can be

forfeited if they do not fulfill the terms of their contracts.

Bond Language

a. Labor and Materials Bond. If specified in a subsequent modification, either (1) the labor and

materials costs associated with construction are expected to exceed $25,000 and this Agreement is

for a “public work” as defined by California Civil Code §3100, or (2) a bond is required in the

Commission’s discretion. In either case, Artist is required to obtain a payment bond in the amount

specified in a subsequent modification. Such bond must include such terms and conditions as are

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required by City’s Risk Manager.

b. Performance Bond. Where appropriate, City may require that Artist obtain a performance bond

in an amount specified by City. Such bond must include such terms and conditions as are required

by City’s Risk Manager.

c. The bonds shall name as dual obligees Artist, City and County of San Francisco, and the specific

project. In the event of Artist or any of Artist’s subcontractors’ failure to perform, Artist shall assign

all rights under any Performance and Payment or Labor and Materials bond in favor of City.

Discussion

A bond is a surety, meaning that the Artist’s responsibility (but not risk) is assumed by the bonding company. A

surety is a commitment by a bonding agency to be liable for the default or failure of duty of another. An Agency

would file a claim with a bond company if the Artist or Subcontractor defaults, or fails to perform per the contract

agreement.

Bonds can be for any length of time, but are not indefinite. Some bonds are written on a “continued until canceled”

basis, although currently most bonds are written on an annual basis. A bond is secured by the material assets and

professional standing of the Artist. Few Artists and small contractors have the assets and organizational

infrastructure required to obtain a bond. As an alternative, they may pledge material assets to the Agency that can

be forfeited if they do not fulfill the terms of their contracts.

Bonds have different ratings, which describes the quality and financial security of the bonding company. A-XIII

rated bonds are preferred, however some B-rated bonds are also acceptable.

Commonly required bonds include:

Performance Bond

A performance bond guarantees payment to complete a project should an Artist be unable to complete the

project due to the Artist’s actions. The bond amount is based on the cost of the contract.

Labor and Materials Bond

A Labor and Materials Bond guarantees payment to persons or companies that worked on or supplied

materials or labor to an artist’s project. The bond amount is based on the Artist’s calculation of labor and

materials costs at the outset of the project.

Maintenance Bond

A Maintenance Bond covers the period starting from when the Agency accepts the artwork to the end of the

term of the bond. This bond covers items that are defective and need to be redone. The term of the bond

depends upon the bonding market.

Bid Bond

A Bid Bond ensures that an Artist will perform the work for the agreed upon price.

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IV. BASIC PROTECTION - INDEMNIFICATION, INCIDENTAL AND

CONSEQUENTIAL DAMAGES, HOLD HARMLESS

In addition to the insurance and bonding protections described above, public art contracts include further

protection for the contracting Agency, protection that remains in effect whether or not the Artist obtains

insurance or a bond. The effect of this language is to place the liability for the Artwork and the attendant

operations entirely in the hands of the Artist or his or her subcontractors. Artists themselves can and

should be protected by passing these responsibilities on to subcontractors, by stipulating that both the

Agency and the Artist be named as Additional Insureds on the subcontractor’s insurance policies.

Indemnification

“To the fullest extent permitted by law, Artist shall assume the defense of, indemnify and save

harmless City and its officers and employees (collectively “Indemnitees”) for any claim, loss,

damage, injury (including, without limitation, injury to or death of an employee of Artist or Artist’s

subcontractors) and liability of every kind, nature and description (including, without limitation,

incidental and consequential damages, court costs, attorneys’ fees and costs of investigation) that

arise directly or indirectly, in whole or in part, from: (1) the services under this Agreement, or any

part thereof, (2) any act or omission of Artist, any consultant or subcontractor to Artist, anyone

directly or indirectly employed by them, or anyone that they control (collectively “Liabilities”). The

foregoing indemnity shall include, without limitation, reasonable fees of attorneys, consultants and

experts and related costs and City’s costs of investigating any claims against the City.

Artist assumes no liability whatsoever for the sole negligence or willful misconduct of any

Indemnitee or contractors of any Indemnitee. Multiple party liability shall be determined pursuant

to comparative fault principles in the State of California.

Artist’s indemnification obligations for claims involving “Professional Liability” (claims involving

acts, errors, or omissions in the rendering of professional services) and “Economic Loss Only”

(claims involving economic loss which are not connected with bodily injury or physical damage to

property) shall be limited to the proportionate extent of Artist’s negligence or other breach of duty.

Artist shall indemnify and hold City harmless from all loss and liability (including attorneys’ fees,

court costs and all other litigation expenses) for any infringement of the patent rights, copyright,

trade secret or any other proprietary right or trademark and all other intellectual property claims of

any person or persons in consequence of City’s acceptance of Artist’s Work or the use by City, or

any of its officers or agents, of articles or services to be supplied in the performance of this

Agreement. Such obligation shall apply where City’s use of Artist’s work is authorized under this or

any subsequent agreement between the parties.”

Discussion

An indemnification clause secures (covers) one party (the Agency) against a loss caused by another (the Artist).

An Artist, being in the unique position of controlling the construction of an artwork, will defend, (provide legal

defense) and pay any claim should the Agency, which has no control over the construction of the artwork, be

sued for any action that the Artist commits.

Indemnification applies to liability for a loss shifted from a non-responsible party to a party who is responsible.

With the liability goes the flow of dollars or payment. In other words, the non-responsible party (the Agency)

pays the responsible party (Artist) not only for the end product or service but also for assuming the

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indemnification in relation to the product or service.

Hold Harmless (or save harmless-see Indemnification, above)

A hold harmless agreement is a contractual arrangement whereby one party assumes liability

inherent in a situation and as a result relieves the other party of responsibility. For example, if an

artist designs and fabricates a sculpture that has the potential of collapsing or causing harm to

others (even if the sculpture has no potential or known risk or danger), and the Agency has no part

in the design or fabrication, the Artist would relieve the Agency of any responsibility (liability) for

the collapse or harm.

Incidental and Consequential Damages; Liquidated Damages

Incidental and Consequential Damages: “Artist shall be responsible for incidental and consequential

damages resulting in whole or in part from Artist’s acts or omissions. Nothing in this Agreement

shall constitute a waiver or limitation of any rights that City may have under applicable law.”

Liquidated Damages: ”By entering into this Agreement, Artist acknowledges that in the event the

Work is delayed beyond the scheduled milestones and timelines provided in this Agreement, City

may suffer actual damages that will be extremely difficult to determine. Commission may determine

that specification of liquidated damages is appropriate for some or all phases of Work under this

Agreement and, if so, shall specify the amount of liquidated damages in the appropriate phase of

Work. Artist agrees that the specified sum of damages per day for each calendar day of delay

beyond scheduled milestones and timelines is not a penalty, but is a reasonable estimate of the loss

that City will incur based on the delay, established in light of the circumstances existing at the time

this Agreement was awarded.

City may deduct a sum representing the liquidated damages from any money due to Artist. Such

deductions shall not be considered a penalty, but rather agreed monetary damages sustained by

City because of Artist’s failure to deliver to City within the time fixed or such extensions of time

permitted in writing by the Commission.”

Discussion

Incidental and Consequential and Liquidated damages are monetary penalties assessed due to delay, breach of

contract or failure of an artwork. They are generally found in public art contracts, however they may be

waived based on the Artist’s scope of work.

Incidental Damages

Incidental Damages are the reasonable expenses that occur should the other party breach a contract. Expenses

might include transportation costs, additional administrative charges, and the cost of mitigating the delay or breach

of contract.

Consequential Damages

Consequential Damages do not come directly or immediately from an act but are those damages that come from

special circumstances that could or could not be foreseeable as a result of the original act. An example would be the

failure of a pump on a fountain specified by an Artist’s subcontractor. The resulting algae growth and required

cleanup that results from the failure of the pump is a consequential damage.

c. Liquidated Damages (Penalty Clause)

Liquidated Damages can apply to the amount of damages set by a legal judgment. Liquidated Damages can

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also be determined within the contractual agreement between the parties to the contract, as the amount to

be recovered by either party, should the other party breech the agreement. For instance, an Artist may be

assessed a penalty ($10 - $25) for every day that the delivery of the artwork is delayed. The terms of the

damages must be carefully described in the contract.

INSURANCE FORMS

CERTIFICATES OF INSURANCE

(Prepared by the San Francisco Risk Manager)

The following are the twenty-one (21) key points of requirement on a certificate of insurance. Each point is

coordinated with a number on the sample certificate of insurance that follows. A certificate of insurance is

clearly labeled as such.

1. Look for the date of issue. This box must be filled. If not, question the validity of the certificate.

2. Pay careful attention to this item, it identifies the limits of the certificate and does not amend the

policy. Remember, “additional insured” status amends a policy.

3. The insurance broker’s name, address and telephone number must be inserted since this is the

point of contact should there be a need for additional policy information.

4. This area contains the contractor’s name, address and other identifying information.

5. Companies affording coverage should be identified according to the type of insurance offered.

This item coordinates with Item 7.

6. This is a certification statement that connects the insured to the types of coverages identified.

7. This column identifies the types of coverages and may outline specific areas of coverage within

a specific policy.

8. The policy number goes here. Check the policy number to determine which types of policies

include which types of coverages.

9 & 10. The policy start date and the policy expiration date show the coverage period. Any

contract outside of the coverage period is not allowed until proof of coverage is presented

which places the contract within the coverage period.

11. The limits columns identify the dollar limits of coverage under various conditions.

12. The focus here is claims made vs. occurrence coverage. This relates directly to the contract

insurance language and affects the dollar limit of coverage.

13. There are various automobile coverage requirements. This box identifies coverages based on

contract requirements.

14. These coverages may be used to complete general liability, or automobile contractual coverage

requirements.

15. Worker’s Compensation coverage is required if the contractor has a single employee. If the

contractor has no employees, the contractor may elect not to carry this coverage. In this

circumstance, Risk Management may grant a waiver to this coverage.

16. These coverages are as appropriate, according to the contract.

17. This is the message center for certificates. The most critical item to verify in this area is that the

correct “additional insureds” are properly identified. The acceptable minimal language is, “The

City and County of San Francisco and its officers, employees and agents are named as

additional insureds.”

18. When you see the additional insured language, be sure to look for a policy endorsement. See

Item 2. Additional insured status or named insured status alters the policy.

19. The Certificate Holder is the City: however, to prevent the certificate from meandering around

the City, always include a notice or attention sentence in the contract. This item must be

completed by the broker.

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20. At times, underwriters will not accept the language as written in the contract. Should that

occur, Risk Management will make a determination as to acceptability.

21. Do not accept a certificate that is unsigned. Send it back to the broker with a notation. An

unsigned certificate is no certificate.

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