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R24-285 1 RESOLUTION NO. R24-285 2 3 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON 4 BEACH, FLORIDA, APPROVING A FORM AGREEMENT BETWEEN THE 5 CITY OF BOYNTON BEACH AND VISUAL ARTISTS TO DISPLAY 6 ARTWORK IN THE CULTURAL CENTER AND/OR AS PART OF THE 7 KINETIC BIENNIAL ART EXHIBITION ON AN AS-NEEDED BASIS; AND 8 FOR ALL OTHER PURPOSES. 9 10 WHEREAS, the City desires to provide visual artists with an opportunity to showcase their 11 artwork in the Cultural Center and/or as part of the International Kinetic biennial art exhibition, 12 which includes indoor and outdoor public art; and 13 WHEREAS, the City Commission, upon the recommendation of staff, has deemed it in the 14 best interests of the city's citizens and residents to approve a form agreement between the City 15 of Boynton Beach and visual artists to display artwork in the cultural center and/or as part of the 16 Kinetic Biennial Art Exhibition on an as-needed basis. 17 18 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON 19 BEACH, FLORIDA, THAT: 20 SECTION 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as 21 being true and correct and are hereby made a specific part of this Resolution upon adoption. 22 SECTION 2. The City Commission of the City of Boynton Beach, Florida, does hereby 23 approve a form agreement between the City of Boynton Beach and visual artists to display artwork 24 in the cultural center and/or as part of the Kinetic Biennial Art Exhibition on an as-needed basis 25 (the "Agreement"), in form and substance similar to that attached as "Exhibit A." 26 SECTION 3. The City Commission of the City of Boynton Beach, Florida, hereby 27 authorizes the Mayor to execute the Agreements. The Mayor is further authorized to execute any 28 ancillary documents required or necessary to accomplish the purposes of this Resolution. 29 SECTION 4. This Resolution shall take effect in accordance with law. 30 31 [signatures on the following page] 32 33 PASSED AND ADOPTED this 114 day of 1\Jpj/.Qrr bei 2024. 34 CITY OF BOYNTON BEACH, FLORIDA 35 YES/ NO 36 Mayor—Ty Penserga ✓ 37 / 38 Vice Mayor—Aimee Kelley 39 40 Commissioner—Angela Cruz ✓ 41 / 42 Commissioner—Woodrow L. Hay �/ 437 44 Commissioner—Thomas Turkin 45 46 VOTE _O 47 ATTES . 48 � 49 bill OP tI U'/y 50 Maylee De Jes i., MPA, C T. •: Verga 51 City Clerk M. or 52 ,.„` 53 yNj0N.BFq�'� APPROVED AS TO FORM: 54 (Corporate Seal) �°:Qo�TE •••.Cy'1, 0r� ry 55 • • cJ�e°�P0 : AeGeg .2 Q/1'i6 57 I, ,.� /, J Shawna G. Lamb 58 •••• �O �<<‘\ "F�p�F\....0‘ 44-' City City Attorney EXHIBIT PUBLIC ART LOAN AND DISPLAY AGREEMENT THIS PUBLIC ART LOAN AND DISPLAY AGREEMENT("Agreement"),made and entered into this day of,20 , by and between the City of Boynton Beach, a municipal corporation of the State of Florida("City") and ("Artist") (each a "Party,"and collectively the"Parties"). WHEREAS, the City is the owner of the located at , Boynton Beach, Florida (the"City Property"); and WHEREAS,the Artist is the creator and owner of the art(the"Art"),which is described and depicted in Exhibit A, attached hereto and incorporated; and WHEREAS, the Artist applied to loan the Art to the City for the exhibition titled ("Exhibition") and for the purposes of having the Art temporarily displayed at the City Property; and WHEREAS, the City has approved the Artist's application, and the Parties hereto now desire to enter into this Agreement to establish the rights,duties,obligations,and responsibilities of the Parties with regard to the temporary loan and display of the Art on the City Property. NOW,THEREFORE, in consideration of the mutual covenants and promises contained herein,the Parties hereto do mutually covenant and agree as follows: 1. Recitals. The recitals set forth above are true and correct and are hereby incorporated into and made a part of this Agreement. 2. Effective Date. This Agreement shall be effective when executed by both Parties and shall expire upon the date that the Artist removes their art from the City Property("Term") unless this Agreement is terminated earlier as provided herein. 3. Artist's Warranties and Representations. The Artist represents and warrants to the City that it: (i) is the sole creator of the Art; (ii) is the owner of the Art and all of the rights under copyright in the Art; and(iii)has full authority to loan the Art and grant the rights provided in this Agreement.The Artist further represents and warrants that nothing in the Art defames any person or entity, infringes any copyright, or otherwise violates the rights of any third party. 4. Loan and Grant of License. 4.1 Loan. The Artist grants to the City a loan of the Art, subject to the terms of this Agreement. Page 1 of 12 4.2 Duration of Display and Loan. The City anticipates displaying the Art for a period of months (the "Display Period"). The City may, in its sole discretion, shorten, interrupt, or terminate the Display Period. The Artist may request termination of the Display Period and surrender of the Art back to the Artist upon sending twenty (20) calendar days advance written notice to the City in accordance with this Agreement. 4.3 Copyright Permission. The Artist grants to the City: (i)the right to display the Art on the City Property; and (ii) the irrevocable right to use images of the Art in materials about or relating to the Exhibition of the Art and/or the City Property and/or the City, and to allow others to do so, in all media now known or later developed and including, but not limited to, television, the Internet and the World Wide Web, provided that such use by the City shall not be for commercial purposes.As the Art will be displayed in a place that is open and accessible to the general public and is broadcast on television, the Artist agrees that the Art may be photographed or videotaped by the general public and may also be broadcast on television. This paragraph and the grant of rights herein shall survive the termination of this Agreement. 4.4 Personality Rights.The Artist grants the City the irrevocable right to use the Artist's name,photograph,likeness,and biography in connection with the City's exercise of the rights granted in this Agreement. This paragraph and the grant rights herein shall survive the termination of this Agreement. 5. Compensation. 5.1 Fee. The City shall pay the Artist a fixed fee of Dollars ($ .00) for all the Services described in Exhibit C. 5.2 Reimbursable Expenses. In addition to the Fee described in Section 5.1, City will reimburse Artist for the actual cost of the expenses eligible for reimbursement, which are described in Exhibit C, up to an amount not to exceed Dollars ($ .00). Artist must submit invoices and proof of payment for reimbursable expenses. 5.3 Payment. The City shall make payment of the Fee and any Reimbursable Expenses in accordance with the Payment Schedule set forth in Exhibit C, which shall constitute full compensation for all services performed by Artist under this Agreement.The City shall review all invoices for approval and shall pay all approved and proper invoices within 45 days, in accordance with Section 218.70, Florida Statutes, Florida Local Government Prompt Payment Act. 5.4 If the Artist terminates this Agreement prior to the end of the Display Period,Artist shall repay any portion of the Artist Fee described in Section 5.1 already paid by City, and shall not be eligible for any further payment of the Artist Fee. Page 2 of 12 6. Transfer, Installation,Care, and Removal of Art. 6.1 Condition of Art upon Transfer to the City. The Artist and the City will make mutually agreeable arrangements for the Art to be delivered to the City Property. The absence of any notation on this Agreement or its attachments as to the condition of the Art at the time it was received by the City shall not mean it was in good condition on receipt. 6.2 Shipping and Installation. The Artist shall make all arrangements and shall pay all costs for shipping the Art to and from the City Property,including but not limited to all packing, unpacking, and shipping and handling in accordance with the Transportation Plan described in Exhibit B. The Artist will coordinate delivery and removal dates with the City, which will be during regular business hours, Monday — Friday 10 a.m. — 5 p.m., unless otherwise agreed to by the City. Prior to delivery,the Artist will prepare the Art for installation to ensure conformance with the City's display system. Upon its arrival at the City Property, the Artist agrees that their art shall be unpacked and installed by Public Arts,Inc.,and the City and Public Arts,Inc.,will photograph the Art and prepare a condition report. Public Arts,Inc.,shall be responsible for the full installation of the Art on the City Property as directed by staff; however, consent to the installation or removal techniques in all areas of the City Property shall be solely within the discretion of the City Manager and upon such terms and conditions as the City Manager shall, in his/her sole discretion, deem necessary. Consent may be withheld unless the Artist agrees to all terms and conditions imposed by the City Manager. 6.3 Signage and Recognition. Signage for the Art shall be provided by the Artist and shall be limited to a plaque no larger than 6"wide, 4"long, and 'A"deep. Wording on the plaque must be limited to the following information:the name of the Art and the name,physical address,website address,and telephone number of the Artist.The City will recognize the Artist in any printed or online publication depicting the Art. 6.4 Care of Art. The Artist shall be solely responsible for the care and maintenance of the Art and any required repairs while it is on display or otherwise in the possession of the City.The City shall provide the Artist with reasonable access to provide such care,maintenance, and repairs after request by the Artist. The City shall use reasonable efforts not to damage the Art, but the City shall not have any duty, obligation, or responsibility to actively care for or otherwise actively maintain the Art.The City has the right,but not the duty, obligation, or responsibility, to execute any emergency preservation measure without the Artist's permission if such measure,in the sole discretion of the City, is required to protect the Art or other property, or to protect the health and safety of City staff or the public. 6.5 Right to Move the Art. The City reserves the right to move the Art at any time to any location on the City Property or other City-owned property or to remove the Art at Page 3 of 12 any time from the Exhibition. The City will contact the Artist before moving the Art except during an emergency related to public safety or the safety of the Art. 6.6 Surrender and Removal. The Art will be surrendered only to the Artist or to the Artist's authorized agent or representative, or, in the event of the death of the Artist, to the authorized legal representative of the estate of the Artist. The City reserves the right, in the City's sole discretion, to terminate the display of the Art at any time and de-install it from the City Property. Upon such termination and de-installation, the City shall notify the Artist that the Art has been de-installed and is available for the Artist to remove from the City Property. The Artist shall make all necessary arrangements and pay all costs to remove the Art from the City Property within ten (10) calendar days after receipt of said notice from the City (the "Removal Deadline"). 7. Termination. In addition to the other termination rights outlined in this Agreement, either Party has the right to terminate this Agreement for convenience by giving the other Party twenty(20) calendar days' written notice. In the event of termination, the City shall de-install the Art and notify the Artist that the Art is available for the Artist to remove from the City Property. The Artist shall make all necessary arrangements and pay all costs to remove the Art from the City Property by the Removal Deadline. 8. Post-Termination Rights. If the Artist does not remove the Art by the Removal Deadline, then the City has the absolute right to place the Art in storage, charge regular storage fees and any related insurance costs, if any, and perfect and enforce a lien for these fees and charges. If the Artist does not remove the Art within twenty(20)calendar days after the Removal Deadline,the Art shall be deemed an unrestricted gift by the Artist to the City. 9. Notices. All notices shall be in writing and sent to the other Party by one of the following methods: (i)certified mail,return receipt requested, (ii)personal delivery with receipt, or (iii) via electronic mail. Notice by certified mail, return receipt requested shall be deemed delivered and received two (2)business days after mailing. Notice by personal delivery shall be deemed received upon actual receipt by the other Party, and notice by electronic mail will be deemed received when sent.For purposes of all notices,the City's and the Artist's representatives are: To the City: City of Boynton Beach Attn: City Manager P.O. Box 310 Boynton Beach, FL 33425 To the Artist: Page 4 of 12 10. Security, Insurance, Risk, and Indemnification. 10.1 Security, Insurance, and Risk. The City shall, as a voluntary accommodation to the Artist, exercise as much case in respect to the Art as it does in safeguarding its own property; however, the City does not owe any duty to the Artist to care for, maintain, or safeguard the Art. The Artist acknowledges and agrees (i) to hold harmless the City, and its Commission, employees, agents, attorneys, contractors, guests, and invitees from any and all claims, damages, loss, or injury of any kind resulting from or in any way arising directly or indirectly out of this Agreement; and (ii) that the City will provide no additional security for the Art beyond the current security measures provided at the City Property and Artist shall be solely responsible for any and all loss or damage to the Art which occurs during the Term of this Agreement. Artist bears sole responsibility for obtaining and maintaining insurance for the Art while it is in transit to or from the City Property, being installed and de-installed, and on display. The City shall not insure the Art. Artist agrees that any insurance policy obtained by the Artist for the Art shall waive subrogation against the City, including its Commission, employees, agents, attorneys, contractors, guests, and invitees. Artist agrees that the value it selects for insurance purposes is the true value of the Art. Nothing contained in this Agreement shall constitute a waiver by the City of sovereign immunity,the limits of liability, or other provisions of§768.28, Florida Statutes. 10.2 Indemnification and Release. The Artist shall indemnify, defend, and hold harmless the City and all of City's current, past, and future officers, agents, and employees (collectively, Indemnified Party") from and against any and all causes of action, demands, claims, including but not limited to, any claim by any individual, institution, or other person claiming full or partial title, property right or copyright to the Art, losses, liabilities, and expenditures of any kind, including attorneys' fees, court costs, and expenses, including through the conclusion of any appellate proceedings,raised or asserted by any person or entity not a party to this Agreement, and caused or alleged to be caused, in whole or in part,by any breach of this Agreement by Artist, or any intentional, reckless, or negligent act or omission of Artist,its officers,employees,or agents,arising from,relating to,or in connection with this Agreement (collectively, a "Claim"). If any Claim is brought against an Indemnified Party, Artist shall, upon written notice from City, defend each Indemnified Party with counsel satisfactory to City or, at City's option, pay for an attorney selected by the City Attorney to defend the Indemnified Party. The obligations of this section shall survive the expiration or earlier termination of this Agreement. If considered necessary by the City Manager and the City Attorney, any sums due Artist under this Agreement may be retained by City until all Claims subject to this indemnification obligation have been settled or otherwise resolved.Any amount withheld shall not be subject to payment of interest by City. The Artist accepts all risk Page 5 of 12 associated with the Art being on display or stored on the City Property or elsewhere, and the Artist hereby releases all claims and subrogation against the Indemnified Party for any loss or damage to the Art, however caused. 11. Public Records. The City is a public agency subject to Chapter 119, Florida Statutes. The Artist shall comply with Florida's Public Records Law. Specifically, the Artist shall: A. Keep and maintain public records required by the City to perform the service; B. Upon request from the City's custodian of public records, provide the City with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Fla. Stat. or as otherwise provided by law; C. Ensure that public records that are exempt or that are confidential and exempt from public record disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and, following completion of the contract, Artist shall destroy all copies of such confidential and exempt records remaining in its possession once the Artist transfers the records in its possession to the City; and D. Upon completion of the contract, Artist shall transfer to the City, at no cost to the City, all public records in Artist's possession. All records stored electronically by Artist must be provided to the City, upon request from the City's custodian of public records, in a format that is compatible with the information technology systems of the City. E. IF THE ARTIST HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE ARTIST'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS: CITY CLERK OFFICE 100 E. OCEAN AVENUE BOYNTON BEACH, FLORIDA, 33435 561-742-6060 CityClerk(&,bbfl.us 12. City's Discretion. The City retains sole and complete discretion regarding the City's exercise of the rights granted in this Agreement, including but not limited to whether the City will accept physical delivery or display the Art, where the Art will be displayed within the City Property, the manner of installation and de-installation of the Art, how long the Art will be Page 6 of 12 exhibited,and whether the City will use in any way images of the Art. The Artist shall not install, de-install, or remove the Art from the City Property or modify the Art's display, except with the permission of the City Manager and in conjunction with an authorized City representative. 13. Replace Art. If Artist removes the Art in accordance with Agreement before the end of the Term, the Artist shall replace it with a similar piece if requested by the City. The costs associated with pickup and drop off of the replacement Art shall not be reimbursable by the City. 14. Sale of Art. The Artist hereby agrees to grant the City the right to purchase the Art through the end of the Term. If the City elects to purchase the Art,Artist agrees to sell the Art at the wholesale price listed in Exhibit A.As part of the purchase price,Artist will provide services and advice to the City in writing regarding the permanent installation of the Art and maintenance instructions. This provision does not require the City to purchase the Art. 15. Waiver. A Party's waiver of any provision,right, or remedy under this Agreement must be in writing and signed by an authorized representative of the waiving party(i.e.,the Artist or the City Manager)to be effective. If a Party does waive any provision, right, or remedy under this Agreement,such waiver will not preclude the Party from enforcing any other provision,right, or remedy. A Party's failure, neglect, or delay to enforce the provisions, rights, or remedies of this Agreement will not be construed or deemed to be a waiver of such Party's rights to do so and will not affect the validity or all or any part of this Agreement or prejudice such party's right to take subsequent action. 16. No Joint Venture.Nothing in this Agreement creates a joint venture,partnership, or agency relationship between the Parties. 17. Binding Effect. This Agreement shall be binding on all Parties, as well as their respective personal representatives, agents, attorneys,heirs, assigns, or successors in interest. 18. Severability Clause. If any provision of this Agreement is declared invalid, void, or unenforceable by a court of competent jurisdiction, the remainder of this Agreement will not be affected, and each remaining provision will be valid and enforceable to the fullest extent permitted by law. 19. E-Verify. Artist shall comply with Section 448.095, Fla. Stat., "Employment Eligibility," including the registration and use of the E-Verify system to verify the work authorization status of employees. Failure to comply with Section 448.095, Fla. Stat. shall result in termination of this Agreement.Any challenge to termination under this provision must be filed in the Circuit Court no later than 20 calendar days after the date of termination. If this Agreement is terminated for a violation of the statute by Artist, Artist may not be awarded a public contract for a period of one(1) year after the date of termination. Page 7 of 12 20. Anti-Human Trafficking. On or before the Effective Date of this Agreement, Artist shall provide City with an affidavit attesting that the Artist does not use coercion for labor or services, in accordance with Section 787.06(13), Florida Statutes. 21. Discriminatory Vendor and Scrutinized Companies Lists; Countries of Concern. Artist represents that it has not been placed on the "discriminatory vendor list" as provided in Section 287.134,Florida Statutes,and that it is not a"scrutinized company"pursuant to Sections 215.473 or 215.4725,Florida Statutes. Artist represents and certifies that it is not, and for the duration of the Term, will not be, ineligible to contract with City on any of the grounds stated in Section 287.135, Florida Statutes. Artist represents that it is, and for the duration of the Term will remain, in compliance with Section 286.101, Florida Statutes. 22. Sovereign Immunity. Except to the extent sovereign immunity may be deemed waived by entering into this Agreement, nothing herein is intended to serve as a waiver of sovereign immunity by City, nor shall anything included herein be construed as consent by City to be sued by third parties in any matter arising out of this Agreement. 23. Independent Contractor. The Artist is an independent contractor, and nothing in this Agreement shall be construed to constitute the Artist as an employee,agent,or representative of the City. The Artist shall not be supervised by an employee or agent of the City. 24. Governing Law and Venue. This Agreement shall be construed and governed in accordance with the laws of the State of Florida. The sole and exclusive venue for any action arising under or related to this Agreement shall be in the state court in and for Palm Beach County, Florida, and each Party hereby submits to the jurisdiction of said court. Artist agrees to waive all defenses to any suit filed in Florida based on improper venue or forum nonconveniens. To ENCOURAGE PROMPT AND EQUITABLE RESOLUTION OF ANY LITIGATION, EACH PARTY HEREBY WAIVES ITS RIGHTS TO A TRIAL BY JURY IN ANY LITIGATION RELATED TO THIS AGREEMENT. 25. Amendments. The Parties may amend this agreement only by mutual written agreement that is executed by both Parties. 26. Entire Agreement. This Agreement and the Exhibits attached hereto constitute all agreements,conditions,and understandings between the parties hereto concerning the subject matter of this Agreement. All representations, either oral or written, shall be deemed merged into this Agreement. No alteration, change, or modification of the terms of the Agreement shall be valid unless made in writing and signed by both parties hereto. Page 8 of 12 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed for the uses and purposes therein expressed on the day and year last written below. CITY OF BOYNTON BEACH, ARTIST FLORIDA Ty Penserga,Mayor (Signature) Date: Print Name Approved as to Form By the City Attorney's Office Date Page 9 of 12 EXHIBIT A Loaned Art Color photograph(s) of the Art is attached. Title Date of Work Materials Dimensions Publicly Displayed Sales Price Wholesale Price Title Date of Work Materials Dimensions Publicly Displayed Sales Price Wholesale Price Title Date of Work Materials Dimensions Publicly Displayed Sales Price Wholesale Price Title Date of Work Materials Dimensions Publicly Displayed Sales Price Wholesale Price *Wholesale price means the cost of the art to a third-party seller such as an art dealer, art consultant, art gallery owner, or retail store(online or brick & mortar). Page 10 of 12 EXHIBIT B Art Transportation Plan Transportation of the Art will be managed by the Artist in coordination with City staff. Specific transportation requirements are(List any specific requirements related to transportation): The alternative contact for the Artist regarding transportation is: Name: Company: Phone number: Email: Page 11 of 12 Exhibit C Artist Scope of Work, Reimbursement Eligibility, and Payment Schedule Scope of Work Artist shall provide the following services to the City: 1. Loan of the Art described in Exhibit A during the Display Period. 2. Design,fabrication,or modification of the base of the art necessary for installation within the City Facility. 3. A statement about the art and a short bio for publication. 4. If available, videos or links to online videos of the art operating or installed elsewhere. 5. Two high-definition images of the Art at a minimum of 300 dpi 6. Artist shall perform all duties and responsibilities described in Exhibit B. 7. If requested by the City, one public presentation by the Artist. Reimbursement Eligibility Artist may seek reimbursement for the following costs, subject to the reimbursement limits described in the Agreement: 1. Mileage for roundtrip pickup and delivery of the Art or Artist's attendance at the Artist presentation from the Artist's studio to the City Property. Reimbursement shall be at the then- current IRS rate. 2. Costs of a rental truck and gas for round-trip pickup and delivery of the Art to/from the Artist's studio to/from the City Property. Artist must submit receipts documenting actual costs. 3. Art shipping costs charged by standard delivery companies, such as Federal Express, UPS, DHS, US Postal Service, etc. Artist must submit receipts documenting actual costs. Payment Schedule Artist shall be paid in accordance with the following payment schedule: 1. %of Artist Fee upon full execution of this Agreement by the Parties. 2. %of Artist Fee after Artist's removal of the Art. 3. Reimbursement for delivery of Art to the City facility after delivery of the Art to the City and submission of applicable receipts. 4. Reimbursement for Artist's attendance at an Artist presentation after completion of the presentation and Artist's submission of a written reimbursement request. 5. Reimbursement for pickup and removal of Art from the City facility after removal of the Art to the City and submission of applicable receipts. Page 12 of 12 EXHIBIT INDOOR PUBLI ISPLAY AGREEMENT THIS PUBLIC ART LOAN AND DISPLAY AGREEMENT("Agreement"),made and entered into this day of,20 , by and between the City of Boynton Beach, a municipal corporation of the State of Florida("City") and ("Artist") (each a "Party,"and collectively the"Parties"). WHEREAS, the City is the owner of the located at , Boynton Beach, Florida (the"City Property"); and WHEREAS,the Artist is the creator and owner of the art(the"Art"),which is described and depicted in Exhibit A, attached hereto and incorporated; and WHEREAS, the Artist applied to loan the Art to the City for the exhibition titled ("Exhibition") and for the purposes of having the Art temporarily displayed at the City Property; and WHEREAS, the City has approved the Artist's application, and the Parties hereto now desire to enter into this Agreement to establish the rights,duties,obligations, and responsibilities of the Parties with regard to the temporary loan and display of the Art on the City Property. NOW,THEREFORE,in consideration of the mutual covenants and promises contained herein, the Parties hereto do mutually covenant and agree as follows: 1. Recitals. The recitals set forth above are true and correct and are hereby incorporated into and made a part of this Agreement. 2. Effective Date. This Agreement shall be effective when executed by both Parties and shall expire upon the date that the Artist removes their art from the City Property ("Term") unless this Agreement is terminated earlier as provided herein. 3. Artist's Warranties and Representations. The Artist represents and warrants to the City that it: (i) is the sole creator of the Art; (ii) is the owner of the Art and all of the rights under copyright in the Art;and(iii)has full authority to loan the Art and grant the rights provided in this Agreement. The Artist further represents and warrants that nothing in the Art defames any person or entity, infringes any copyright, or otherwise violates the rights of any third party. 4. Loan and Grant of License. 4.1 Loan. The Artist grants to the City a loan of the Art, subject to the terms of this Agreement. Indoor Public Art Rev. 10.14.24 Page 1 of 13 4.2 Duration of Display and Loan. The City anticipates displaying the Art for a period of months (the "Display Period"). The City may, in its sole discretion, shorten, interrupt, or terminate the Display Period. The Artist may request termination of the Display Period and surrender of the Art back to the Artist upon sending twenty (20) calendar days advance written notice to the City in accordance with this Agreement. 4.3 Copyright Permission. The Artist grants to the City: (i)the right to display the Art on the City Property; and (ii) the irrevocable right to use images of the Art in materials about or relating to the Exhibition of the Art and/or the City Property and/or the City, and to allow others to do so, in all media now known or later developed and including, but not limited to, television, the Internet and the World Wide Web, provided that such use by the City shall not be for commercial purposes. As the Art will be displayed in a place that is open and accessible to the general public and is broadcast on television, the Artist agrees that the Art may be photographed or videotaped by the general public and may also be broadcast on television. This paragraph and the grant of rights herein shall survive the termination of this Agreement. 4.4 Personality Rights.The Artist grants the City the irrevocable right to use the Artist's name,photograph, likeness, and biography in connection with the City's exercise of the rights granted in this Agreement. This paragraph and the grant rights herein shall survive the termination of this Agreement. 5. Compensation. 5.1 Fee. The City shall pay the Artist a fixed fee of Dollars ($ .00) for all the Services described in Exhibit C. 5.2 Reimbursable Expenses. In addition to the Fee described in Section 5.1, City will reimburse Artist for the actual cost of the expenses eligible for reimbursement,which are described in Exhibit C,up to an amount not to exceed Dollars($ .00).Artist must submit invoices and proof of payment for reimbursable expenses. 5.3 Payment. The City shall make payment of the Fee and any Reimbursable Expenses in accordance with the Payment Schedule set forth in Exhibit C, which shall constitute full compensation for all services performed by Artist under this Agreement. The City shall review all invoices for approval and shall pay all approved and proper invoices within 45 days,in accordance with Section 218.70, Florida Statutes, Florida Local Government Prompt Payment Act. 5.4 If the Artist terminates this Agreement prior to the end of the Display Period,Artist shall repay any portion of the Artist Fee described in Section 5.1 already paid by City, and shall not be eligible for any further payment of the Artist Fee. Indoor Public Art Rev. 10.14.24 Page 2 of 13 6. Transfer, Installation,Care, and Removal of Art. 6.1 Condition of Art upon Transfer to the City. The Artist and the City will make mutually agreeable arrangements for the Art to be delivered to the City Property. The absence of any notation on this Agreement or its attachments as to the condition of the Art at the time it was received by the City shall not mean it was in good condition on receipt. 6.2 Shipping and Installation. The Artist shall make all arrangements and shall pay all costs for shipping the Art to and from the City Property, including but not limited to all packing, unpacking, and shipping and handling in accordance with the Transportation Plan described in Exhibit B. The Artist will coordinate delivery and removal dates with the City, which will be during regular business hours, Monday— Friday 10 a.m. — 5 p.m., unless otherwise agreed to by the City. Prior to delivery, the Artist will prepare the Art for installation to ensure conformance with the City's display system. Upon its arrival at the City Property, the Artist shall unpack the Art, and the City and Artist will photograph the Art and prepare a condition report,which must be signed by the Artist. Artist shall be responsible for directing and supervising the installation of the Art on the City Property by City staff; however, consent to the installation or removal techniques in all areas of the City Property shall be solely within the discretion of the City Manager and upon such terms and conditions as the City Manager shall, in his/her sole discretion, deem necessary. Consent may be withheld unless the Artist agrees to all terms and conditions imposed by the City Manager. 6.3 Signage and Recognition. Signage for the Art shall be provided by the Artist and shall be limited to a plaque no larger than 6"wide, 4" long, and 'A"deep. Wording on the plaque must be limited to the following information: the name of the Art and the name, physical address, website address, and telephone number of the Artist. The City will recognize the Artist in any printed or online publication depicting the Art. 6.4 Care of Art. The Artist shall be solely responsible for the care and maintenance of the Art and any required repairs while it is on display or otherwise in the possession of the City. The City shall provide the Artist with reasonable access to provide such care, maintenance, and repairs after request by the Artist. The City shall use reasonable efforts not to damage the Art,but the City shall not have any duty, obligation, or responsibility to actively care for or otherwise actively maintain the Art. The City has the right, but not the duty, obligation, or responsibility, to execute any emergency preservation measure without the Artist's permission if such measure, in the sole discretion of the City, is required to protect the Art or other property, or to protect the health and safety of City staff or the public. 6.5 Right to Move the Art. The City reserves the right to move the Art at any time to any location on the City Property or other City-owned property or to remove the Art at any time Indoor Public Art Rev. 10.14.24 Page 3 of 13 from the Exhibition. The City will contact the Artist before moving the Art except during an emergency related to public safety or the safety of the Art. 6.6 Surrender and Removal. The Art will be surrendered only to the Artist or to the Artist's authorized agent or representative, or, in the event of the death of the Artist, to the authorized legal representative of the estate of the Artist. The City reserves the right, in the City's sole discretion, to terminate the display of the Art at any time and de-install it from the City Property. Upon such termination and de-installation, the City shall notify the Artist that the Art has been de-installed and is available for the Artist to remove from the City Property. The Artist shall make all necessary arrangements and pay all costs to remove the Art from the City Property within ten (10)calendar days after receipt of said notice from the City(the"Removal Deadline"). 7. Termination. In addition to the other termination rights outlined in this Agreement, either Party has the right to terminate this Agreement for convenience by giving the other Party twenty(20) calendar days' written notice. In the event of termination, the City shall de-install the Art and notify the Artist that the Art is available for the Artist to remove from the City Property. The Artist shall make all necessary arrangements and pay all costs to remove the Art from the City Property by the Removal Deadline. 8. Post-Termination Rights. If the Artist does not remove the Art by the Removal Deadline, then the City has the absolute right to place the Art in storage, charge regular storage fees and any related insurance costs, if any, and perfect and enforce a lien for these fees and charges. If the Artist does not remove the Art within twenty(20)calendar days after the Removal Deadline, the Art shall be deemed an unrestricted gift by the Artist to the City. 9. Notices. All notices shall be in writing and sent to the other Party by one of the following methods: (i)certified mail,return receipt requested,(ii)personal delivery with receipt, or (iii) via electronic mail. Notice by certified mail, return receipt requested shall be deemed delivered and received two (2)business days after mailing. Notice by personal delivery shall be deemed received upon actual receipt by the other Party, and notice by electronic mail will be deemed received when sent.For purposes of all notices,the City's and the Artist's representatives are: To the City: City of Boynton Beach Attn: City Manager P.O. Box 310 Boynton Beach, FL 33425 Indoor Public Art Rev. 10.14.24 Page 4 of 13 To the Artist: 10. Security,Insurance,Risk, and Indemnification. 10.1 Security, Insurance, and Risk. The City shall, as a voluntary accommodation to the Artist, exercise as much case in respect to the Art as it does in safeguarding its own property; however, the City does not owe any duty to the Artist to care for, maintain, or safeguard the Art. The Artist acknowledges and agrees(i)to hold harmless the City,and its Commission,employees, agents,attorneys,contractors,guests,and invitees from any and all claims,damages,loss,or injury of any kind resulting from or in any way arising directly or indirectly out of this Agreement; and (ii) that the City will provide no additional security for the Art beyond the current security measures provided at the City Property and Artist shall be solely responsible for any and all loss or damage to the Art which occurs during the Term of this Agreement. Artist bears sole responsibility for obtaining and maintaining insurance for the Art while it is in transit to or from the City Property, and while it is being installed and de-installed. Unless otherwise instructed in writing, the City's insurance policy will provide coverage for the Art while it is on display during the Display Period for the amount specified on the face of this Agreement,against risks of physical loss or damage from covered perils while on City Property during the Display Period. This coverage is subject to the deductible as indicated in the insurance policy. The City will pay for damages up to the insurance amount for Art damaged during the Display Period and located on City Property. In the event of partial loss or damage, the City's liability shall be limited to the cost of repair or restoration or any resulting loss in fair market value. However, the City disclaims liability up to the policy's deductible and in excess of the policy limits. The appraisal value shall be the responsibility of and be determined by the Artist and does not in any way imply an endorsement by the City. Artist agrees that the value it selects for insurance purposes is the true value of the Art. The policy referred to contains the usual exclusions of loss or damage including but not limited to such causes as gradual deterioration,moths,vermin,inherent vice,war,invasion, hostilities, insurrection, confiscation by order of any government or public authority, risks of contraband or illegal transportation and/or trade. A certificate of insurance will be sent upon request. By mutual consent of the Artist and City, the City disclaims liability for items valued at less than the City's Insurance deductible. If the Artist chooses to maintain his/her own insurance, the City must be supplied with and approve a certificate of insurance naming the City and its officers,employees,and agents,as an additional insured,and waiving subrogation against the City, including its Commission, employees, agents, attorneys, contractors, guests, and invitees. If the Artist fails to supply the City with such a certificate for approval, this Agreement shall constitute a release of the City from any liability in connection with the Art. The City cannot accept responsibility for any error or deficiency in information furnished to the Artist's insurer or any lapses in coverage.The City will be responsible and liable for borrowed items only during the term Indoor Public Art Rev. 10.14.24 Page 5 of 13 of the Display Period. Nothing contained in this Agreement shall constitute a waiver by the City of sovereign immunity,the limits of liability,or other provisions of§768.28, Florida Statutes. 10.2 Indemnification and Release. The Artist shall indemnify, defend, and hold harmless the City and all of City's current, past, and future officers, agents, and employees (collectively, Indemnified Party") from and against any and all causes of action,demands, claims, including but not limited to, any claim by any individual, institution, or other person claiming full or partial title, property right or copyright to the Art, losses, liabilities, and expenditures of any kind,including attorneys' fees, court costs, and expenses,including through the conclusion of any appellate proceedings,raised or asserted by any person or entity not a party to this Agreement,and caused or alleged to be caused, in whole or in part, by any breach of this Agreement by Artist, or any intentional, reckless, or negligent act or omission of Artist, its officers, employees, or agents, arising from, relating to, or in connection with this Agreement (collectively, a "Claim"). If any Claim is brought against an Indemnified Party, Artist shall,upon written notice from City, defend each Indemnified Party with counsel satisfactory to City or, at City's option, pay for an attorney selected by the City Attorney to defend the Indemnified Party. The obligations of this section shall survive the expiration or earlier termination of this Agreement. If considered necessary by the City Manager and the City Attorney, any sums due Artist under this Agreement may be retained by City until all Claims subject to this indemnification obligation have been settled or otherwise resolved. Any amount withheld shall not be subject to payment of interest by City. The Artist accepts all risk associated with the Art being on display or stored on the City Property or elsewhere, and the Artist hereby releases all claims and subrogation against the Indemnified Party for any loss or damage to the Art, however caused. 11. Public Records. The City is a public agency subject to Chapter 119, Florida Statutes. The Artist shall comply with Florida's Public Records Law. Specifically, the Artist shall: A. Keep and maintain public records required by the City to perform the service; B. Upon request from the City's custodian of public records, provide the City with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Fla. Stat. or as otherwise provided by law; C. Ensure that public records that are exempt or that are confidential and exempt from public record disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and, following completion of the contract,Artist shall destroy all copies of such confidential and exempt records remaining in its possession once the Artist transfers the records in its possession to the City; and D. Upon completion of the contract, Artist shall transfer to the City, at no cost to the City, all public records in Artist's possession. All records stored electronically by Indoor Public Art Rev. 10.14.24 Page 6 of 13 Artist must be provided to the City, upon request from the City's custodian of public records, in a format that is compatible with the information technology systems of the City. E. IF THE ARTIST HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE ARTIST'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS: CITY CLERK OFFICE 100 E. OCEAN AVENUE BOYNTON BEACH, FLORIDA, 33435 561-742-6060 CityClerk(a,bbfl.us 12. City's Discretion. The City retains sole and complete discretion regarding the City's exercise of the rights granted in this Agreement, including but not limited to whether the City will accept physical delivery or display the Art, where the Art will be displayed within the City Property, the manner of installation and de-installation of the Art, how long the Art will be exhibited, and whether the City will use in any way images of the Art. The Artist shall not install, de-install, or remove the Art from the City Property or modify the Art's display, except with the permission of the City Manager and in conjunction with an authorized City representative. 13. Replace Art. If Artist removes the Art in accordance with Agreement before the end of the Term, the Artist shall replace it with a similar piece if requested by the City. The costs associated with pickup and drop off of the replacement Art shall not be reimbursable by the City. 14. Sale of Art. The Artist hereby agrees to grant the City the right to purchase the Art through the end of the Term. If the City elects to purchase the Art, Artist agrees to sell the Art at the wholesale price listed in Exhibit A. As part of the purchase price, Artist will provide services and advice to the City in writing regarding the permanent installation of the Art and maintenance instructions. This provision does not require the City to purchase the Art. 15. Waiver. A Party's waiver of any provision, right, or remedy under this Agreement must be in writing and signed by an authorized representative of the waiving party(i.e.,the Artist or the City Manager) to be effective. If a Party does waive any provision, right, or remedy under this Agreement,such waiver will not preclude the Party from enforcing any other provision,right, or remedy. A Party's failure, neglect, or delay to enforce the provisions, rights, or remedies of this Agreement will not be construed or deemed to be a waiver of such Party's rights to do so and will not affect the validity or all or any part of this Agreement or prejudice such party's right to Indoor Public Art Rev. 10.14.24 Page 7 of 13 take subsequent action. 16. No Joint Venture.Nothing in this Agreement creates a joint venture,partnership, or agency relationship between the Parties. 17. Binding Effect. This Agreement shall be binding on all Parties, as well as their respective personal representatives, agents, attorneys,heirs, assigns,or successors in interest. 18. Severability Clause. If any provision of this Agreement is declared invalid, void, or unenforceable by a court of competent jurisdiction, the remainder of this Agreement will not be affected, and each remaining provision will be valid and enforceable to the fullest extent permitted by law. 19. E-Verifv. Artist shall comply with Section 448.095, Fla. Stat., "Employment Eligibility," including the registration and use of the E-Verify system to verify the work authorization status of employees. Failure to comply with Section 448,095, Fla. Stat. shall result in termination of this Agreement.Any challenge to termination under this provision must be filed in the Circuit Court no later than 20 calendar days after the date of termination. If this Agreement is terminated for a violation of the statute by Artist, Artist may not be awarded a public contract for a period of one(1)year after the date of termination. 20. Anti-Human Trafficking. On or before the Effective Date of this Agreement, Artist shall provide City with an affidavit attesting that the Artist does not use coercion for labor or services, in accordance with Section 787.06(13), Florida Statutes. 21. Discriminatory Vendor and Scrutinized Companies Lists; Countries of Concern. Artist represents that it has not been placed on the "discriminatory vendor list" as provided in Section 287.134,Florida Statutes,and that it is not a"scrutinized company"pursuant to Sections 215.473 or 215.4725,Florida Statutes.Artist represents and certifies that it is not,and for the duration of the Term, will not be, ineligible to contract with City on any of the grounds stated in Section 287.135, Florida Statutes. Artist represents that it is, and for the duration of the Term will remain, in compliance with Section 286.101, Florida Statutes. 22. Sovereign Immunity. Except to the extent sovereign immunity may be deemed waived by entering into this Agreement, nothing herein is intended to serve as a waiver of sovereign immunity by City, nor shall anything included herein be construed as consent by City to be sued by third parties in any matter arising out of this Agreement. 23. Independent Contractor. The Artist is an independent contractor, and nothing in this Agreement shall be construed to constitute the Artist as an employee,agent,or representative of the City. The Artist shall not be supervised by an employee or agent of the City. 24. Governing Law and Venue. This Agreement shall be construed and governed in accordance with the laws of the State of Florida. The sole and exclusive venue for any action arising under or related to this Agreement shall be in the state court in and for Palm Beach County, Indoor Public Art Rev. 10.14.24 Page 8 of 13 Florida, and each Party hereby submits to the jurisdiction of said court. Artist agrees to waive all defenses to any suit filed in Florida based on improper venue or forum nonconveniens. To ENCOURAGE PROMPT AND EQUITABLE RESOLUTION OF ANY LITIGATION, EACH PARTY HEREBY WANES ITS RIGHTS TO A TRIAL BY JURY IN ANY LITIGATION RELATED TO THIS AGREEMENT. 25. Amendments. The Parties may amend this agreement only by mutual written agreement that is executed by both Parties. 26. Entire Agreement. This Agreement and the Exhibits attached hereto constitute all agreements,conditions,and understandings between the parties hereto concerning the subject matter of this Agreement. All representations, either oral or written, shall be deemed merged into this Agreement. No alteration, change, or modification of the terms of the Agreement shall be valid unless made in writing and signed by both parties hereto. Indoor Public Art Rev. 10.14.24 Page 9 of 13 IN WITNESS WHEREOF,the Parties have caused this Agreement to be executed for the uses and purposes therein expressed on the day and year last written below. CITY OF BOYNTON BEACH, ARTIST FLORIDA Ty Penserga, Mayor (Signature) Date: Print Name Approved as to Form By the City Attorney's Office Date Indoor Public Art Rev. 10.14.24 Page 10 of 13 EXHIBIT A Loaned Art Color photograph(s) of the Art is attached. Title Date of Work Materials Dimensions Publicly Displayed Sales Price Wholesale Price Title Date of Work Materials Dimensions Publicly Displayed Sales Price Wholesale Price Title Date of Work Materials Dimensions Publicly Displayed Sales Price Wholesale Price Title Date of Work Materials Dimensions Publicly Displayed Sales Price Wholesale Price *Wholesale price means the cost of the art to a third-party seller such as an art dealer, art consultant, art gallery owner, or retail store (online or brick &mortar). Indoor Public Art Rev. 10.14.24 Page 11 of 13 EXHIBIT B Art Transportation Plan Transportation of the Art will be managed by the Artist in coordination with City staff. Specific transportation requirements are(List any specific requirements related to transportation): The alternative contact for the Artist regarding transportation is: Name: Company: Phone number: Email: Indoor Public Art Rev. 10.14.24 Page 12 of 13 Exhibit C Artist Scope of Work, Reimbursement Eligibility, and Payment Schedule Scope of Work Artist shall provide the following services to the City: 1. Loan of the Art described in Exhibit A during the Display Period. 2. Design,fabrication,or modification of the base of the art necessary for installation within the City Facility. 3. A statement about the art and a short bio for publication. 4. If available, videos or links to online videos of the art operating or installed elsewhere. 5. Two high-definition images of the Art at a minimum of 300 dpi 6. Artist shall perform all duties and responsibilities described in Exhibit B. 7. If requested by the City, one public presentation by the Artist. Reimbursement Eligibility Artist may seek reimbursement for the following costs, subject to the reimbursement limits described in the Agreement: 1. Mileage for roundtrip pickup and delivery of the Art or Artist's attendance at the Artist presentation from the Artist's studio to the City Property. Reimbursement shall be at the then- current IRS rate. 2. Costs of a rental truck and gas for round-trip pickup and delivery of the Art to/from the Artist's studio to/from the City Property. Artist must submit receipts documenting actual costs. 3. Art shipping costs charged by standard delivery companies, such as Federal Express,UPS, DHS, US Postal Service, etc. Artist must submit receipts documenting actual costs. Payment Schedule Artist shall be paid in accordance with the following payment schedule: 1. %of Artist Fee upon full execution of this Agreement by the Parties. 2. %of Artist Fee after Artist's removal of the Art. 3. Reimbursement for delivery of Art to the City facility after delivery of the Art to the City and submission of applicable receipts. 4. Reimbursement for Artist's attendance at an Artist presentation after completion of the presentation and Artist's submission of a written reimbursement request. 5. Reimbursement for pickup and removal of Art from the City facility after removal of the Art to the City and submission of applicable receipts. Indoor Public Art Rev. 10.14.24 Page 13 of 13 EXHIBIT '22 r1 OUTDOOR PUBLIC ART LOAN AND DISPLAY AGREEMENT THIS PUBLIC ART LOAN AND DISPLAY AGREEMENT("Agreement"),made and entered into this day of,20 , by and between the City of Boynton Beach, a municipal corporation of the State of Florida("City") and ("Artist") (each a "Party,"and collectively the"Parties"). WHEREAS, the City is the owner of the located at , Boynton Beach, Florida (the "City Property"); and WHEREAS,the Artist is the creator and owner of the art(the"Art"), which is described and depicted in Exhibit A, attached hereto and incorporated; and WHEREAS, the Artist applied to loan the Art to the City for the exhibition titled ("Exhibition") and for the purposes of having the Art temporarily displayed at the City Property; and WHEREAS, the City has approved the Artist's application, and the Parties hereto now desire to enter into this Agreement to establish the rights,duties, obligations, and responsibilities of the Parties with regard to the temporary loan and display of the Art on the City Property. NOW,THEREFORE,in consideration of the mutual covenants and promises contained herein, the Parties hereto do mutually covenant and agree as follows: 1. Recitals. The recitals set forth above are true and correct and are hereby incorporated into and made a part of this Agreement. 2. Effective Date. This Agreement shall be effective when executed by both Parties and shall expire upon the date that the Artist removes their art from the City Property ("Term") unless this Agreement is terminated earlier as provided herein. 3. Artist's Warranties and Representations. The Artist represents and warrants to the City that it: (i) is the sole creator of the Art; (ii) is the owner of the Art and all of the rights under copyright in the Art;and(iii)has full authority to loan the Art and grant the rights provided in this Agreement. The Artist further represents and warrants that nothing in the Art defames any person or entity, infringes any copyright, or otherwise violates the rights of any third party. 4. Loan and Grant of License. 4.1 Loan. The Artist grants to the City a loan of the Art, subject to the terms of this Agreement. Outdoor Public Art Rev. 10.14.24 Page 1 of 13 4.2 Duration of Display and Loan. The City anticipates displaying the Art for a period of months (the "Display Period"). The City may, in its sole discretion, shorten, interrupt, or terminate the Display Period. The Artist may request termination of the Display Period and surrender of the Art back to the Artist upon sending twenty (20) calendar days advance written notice to the City in accordance with this Agreement. 4.3 Copyright Permission. The Artist grants to the City: (i)the right to display the Art on the City Property; and (ii) the irrevocable right to use images of the Art in materials about or relating to the Exhibition of the Art and/or the City Property and/or the City, and to allow others to do so, in all media now known or later developed and including, but not limited to, television, the Internet and the World Wide Web, provided that such use by the City shall not be for commercial purposes. As the Art will be displayed in a place that is open and accessible to the general public and is broadcast on television, the Artist agrees that the Art may be photographed or videotaped by the general public and may also be broadcast on television. This paragraph and the grant of rights herein shall survive the termination of this Agreement. 4.4 Personality Rights.The Artist grants the City the irrevocable right to use the Artist's name,photograph, likeness, and biography in connection with the City's exercise of the rights granted in this Agreement. This paragraph and the grant rights herein shall survive the termination of this Agreement. 5. Compensation. 5.1 Fee. The City shall pay the Artist a fixed fee of Dollars ($ .00) for all the Services described in Exhibit C. 5.2 Reimbursable Expenses. In addition to the Fee described in Section 5.1, City will reimburse Artist for the actual cost of the expenses eligible for reimbursement,which are described in Exhibit C,up to an amount not to exceed Dollars($ .00).Artist must submit invoices and proof of payment for reimbursable expenses. 5.3 Payment.The City shall make payment of the Fee and any Reimbursable Expenses in accordance with the Payment Schedule set forth in Exhibit C, which shall constitute full compensation for all services performed by Artist under this Agreement. The City shall review all invoices for approval and shall pay all approved and proper invoices within 45 days,in accordance with Section 218.70, Florida Statutes, Florida Local Government Prompt Payment Act. 5.4 If the Artist terminates this Agreement prior to the end of the Display Period,Artist shall repay any portion of the Artist Fee described in Section 5.1 already paid by City, and shall not be eligible for any further payment of the Artist Fee. 6. Transfer., Installation,Care, and Removal of Art. 6.1 Condition of Art upon Transfer to the City. The Artist and the City will make Outdoor Public Art Rev. 10.14.24 Page 2 of 13 mutually agreeable arrangements for the Art to be delivered to the City Property. The absence of any notation on this Agreement or its attachments as to the condition of the Art at the time it was received by the City shall not mean it was in good condition on receipt. 6.2 Shipping and Installation. The Artist shall make all arrangements and shall pay all costs for shipping the Art to and from the City Property, including but not limited to all packing, unpacking, and shipping and handling in accordance with the Transportation Plan described in Exhibit B. The Artist will coordinate delivery and removal dates with the City, which will be during regular business hours, Monday— Friday 10 a.m. — 5 p.m., unless otherwise agreed to by the City. Prior to delivery, the Artist will prepare the Art for installation to ensure conformance with the City's display system. Upon its arrival at the City Property, the Artist shall unpack the Art, and the City and Artist will photograph the Art and prepare a condition report,which must be signed by the Artist.Artist shall be responsible for directing and supervising the installation of the Art on the City Property by City staff; however, consent to the installation or removal techniques in all areas of the City Property shall be solely within the discretion of the City Manager and upon such terms and conditions as the City Manager shall, in his/her sole discretion, deem necessary. Consent may be withheld unless the Artist agrees to all terms and conditions imposed by the City Manager. 6.3 Signage and Recognition. Signage for the Art shall be provided by the Artist and shall be limited to a plaque no larger than 6"wide, 4" long, and %"deep. Wording on the plaque must be limited to the following information: the name of the Art and the name, physical address, website address, and telephone number of the Artist. The City will recognize the Artist in any printed or online publication depicting the Art. 6.4 Care of Art. The Artist shall be solely responsible for the care and maintenance of the Art and any required repairs while it is on display or otherwise in the possession of the City. The City shall provide the Artist with reasonable access to provide such care, maintenance, and repairs after request by the Artist. The City shall use reasonable efforts not to damage the Art,but the City shall not have any duty, obligation, or responsibility to actively care for or otherwise actively maintain the Art. The City has the right, but not the duty, obligation, or responsibility, to execute any emergency preservation measure without the Artist's permission if such measure, in the sole discretion of the City, is required to protect the Art or other property, or to protect the health and safety of City staff or the public. 6.5 Right to Move the Art. The City reserves the right to move the Art at any time to any location on the City Property or other City-owned property or to remove the Art at any time from the Exhibition. The City will contact the Artist before moving the Art except during an emergency related to public safety or the safety of the Art. Outdoor Public Art Rev. 10.14.24 Page 3 of 13 6.6 Surrender and Removal. The Art will be surrendered only to the Artist or to the Artist's authorized agent or representative, or, in the event of the death of the Artist, to the authorized legal representative of the estate of the Artist. The City reserves the right, in the City's sole discretion, to terminate the display of the Art at any time and de-install it from the City Property. Upon such termination and de-installation, the City shall notify the Artist that the Art has been de-installed and is available for the Artist to remove from the City Property. The Artist shall make all necessary arrangements and pay all costs to remove the Art from the City Property within ten (10) calendar days after receipt of said notice from the City(the"Removal Deadline"). 7. Termination. In addition to the other termination rights outlined in this Agreement, either Party has the right to terminate this Agreement for convenience by giving the other Party twenty (20) calendar days' written notice. In the event of termination, the City shall de-install the Art and notify the Artist that the Art is available for the Artist to remove from the City Property. The Artist shall make all necessary arrangements and pay all costs to remove the Art from the City Property by the Removal Deadline. 8. Post-Termination Rights. If the Artist does not remove the Art by the Removal Deadline, then the City has the absolute right to place the Art in storage, charge regular storage fees and any related insurance costs, if any, and perfect and enforce a lien for these fees and charges. If the Artist does not remove the Art within twenty(20)calendar days after the Removal Deadline,the Art shall be deemed an unrestricted gift by the Artist to the City. 9. Notices. All notices shall be in writing and sent to the other Party by one of the following methods: (i)certified mail,return receipt requested, (ii)personal delivery with receipt, or (iii) via electronic mail. Notice by certified mail, return receipt requested shall be deemed delivered and received two (2)business days after mailing. Notice by personal delivery shall be deemed received upon actual receipt by the other Party, and notice by electronic mail will be deemed received when sent.For purposes of all notices,the City's and the Artist's representatives are: To the City: City of Boynton Beach Attn: City Manager P.O. Box 310 Boynton Beach, FL 33425 To the Artist: Outdoor Public Art Rev. 10.14.24 Page 4 of 13 10. Security, Insurance,Risk, and Indemnification. 10.1 Security, Insurance, and Risk. The City shall, as a voluntary accommodation to the Artist, exercise as much case in respect to the Art as it does in safeguarding its own property;however, the City does not owe any duty to the Artist to care for, maintain, or safeguard the Art. The Artist acknowledges and agrees(i)to hold harmless the City, and its Commission, employees, agents, attorneys, contractors, guests, and invitees from any and all claims, damages, loss,or injury of any kind resulting from or in any way arising directly or indirectly out of this Agreement; and (ii) that the City will provide no additional security for the Art beyond the current security measures provided at the City Property and Artist shall be solely responsible for any and all loss or damage to the Art which occurs during the Term of this Agreement. Artist bears sole responsibility for obtaining and maintaining insurance for the Art while it is in transit to or from the City Property, and while it is being installed and de-installed. Unless otherwise instructed in writing,the City's insurance policy will provide coverage for the Art while it is on display during the Display Period for the amount specified on the face of this Agreement, against risks of physical loss or damage from covered perils while on City Property during the Display Period. This coverage is subject to the deductible as indicated in the insurance policy.The City will pay for damages up to the insurance amount for Art damaged during the Display Period and located on City Property. In the event of partial loss or damage, the City's liability shall be limited to the cost of repair or restoration or any resulting loss in fair market value. However, the City disclaims liability up to the policy's deductible and in excess of the policy limits. The appraisal value shall be the responsibility of and be determined by the Artist and does not in any way imply an endorsement by the City. Artist agrees that the value it selects for insurance purposes is the true value of the Art. The policy referred to contains the usual exclusions of loss or damage including but not limited to such causes as gradual deterioration, moths, vermin, inherent vice, war, invasion, hostilities, insurrection, confiscation by order of any government or public authority, risks of contraband or illegal transportation and/or trade. A certificate of insurance will be sent upon request. By mutual consent of the Artist and City, the City disclaims liability for items valued at less than the City's Insurance deductible. If the Artist chooses to maintain his/her own insurance, the City must be supplied with and approve a certificate of insurance naming the City and its officers,employees,and agents, as an additional insured, and waiving subrogation against the City, including its Commission, employees, agents, attorneys, contractors,guests, and invitees. If the Artist fails to supply the City with such a certificate for approval, this Agreement shall constitute a release of the City from any liability in connection with the Art. The City cannot accept responsibility for any error or deficiency in information furnished to the Artist's insurer or any lapses in coverage. The City will be responsible and liable for borrowed items only during the term of the Display Period. Nothing contained in this Agreement shall constitute a waiver by the City of sovereign immunity, the limits of Outdoor Public Art Rev. 10.14.24 Page 5 of 13 liability, or other provisions of§768.28, Florida Statutes. 10.2 Indemnification and Release. The Artist shall indemnify, defend, and hold harmless the City and all of City's current, past, and future officers, agents, and employees (collectively, Indemnified Party") from and against any and all causes of action,demands,claims, including but not limited to, any claim by any individual, institution, or other person claiming full or partial title, property right or copyright to the Art, losses, liabilities, and expenditures of any kind,including attorneys' fees, court costs,and expenses,including through the conclusion of any appellate proceedings,raised or asserted by any person or entity not a party to this Agreement, and caused or alleged to be caused, in whole or in part, by any breach of this Agreement by Artist, or any intentional, reckless, or negligent act or omission of Artist, its officers, employees, or agents, arising from, relating to, or in connection with this Agreement (collectively, a "Claim"). If any Claim is brought against an Indemnified Party, Artist shall, upon written notice from City, defend each Indemnified Party with counsel satisfactory to City or, at City's option, pay for an attorney selected by the City Attorney to defend the Indemnified Party. The obligations of this section shall survive the expiration or earlier termination of this Agreement. If considered necessary by the City Manager and the City Attorney, any sums due Artist under this Agreement may be retained by City until all Claims subject to this indemnification obligation have been settled or otherwise resolved. Any amount withheld shall not be subject to payment of interest by City. The Artist accepts all risk associated with the Art being on display or stored on the City Property or elsewhere, and the Artist hereby releases all claims and subrogation against the Indemnified Party for any loss or damage to the Art, however caused. 11. Public Records. The City is a public agency subject to Chapter 119, Florida Statutes. The Artist shall comply with Florida's Public Records Law. Specifically, the Artist shall: A. Keep and maintain public records required by the City to perform the service; B. Upon request from the City's custodian of public records, provide the City with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Fla. Stat. or as otherwise provided by law; C. Ensure that public records that are exempt or that are confidential and exempt from public record disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and, following completion of the contract,Artist shall destroy all copies of such confidential and exempt records remaining in its possession once the Artist transfers the records in its possession to the City; and D. Upon completion of the contract, Artist shall transfer to the City, at no cost to the City, all public records in Artist's possession. All records stored electronically by Artist must be provided to the City, upon request from the City's custodian of public Outdoor Public Art Rev. 10.14.24 Page 6 of 13 records, in a format that is compatible with the information technology systems of the City. E. IF THE ARTIST HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE ARTIST'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS: CITY CLERK OFFICE 100 E. OCEAN AVENUE BOYNTON BEACH, FLORIDA, 33435 561-742-6060 CityClerk(n bbfl.us 12. City's Discretion. The City retains sole and complete discretion regarding the City's exercise of the rights granted in this Agreement, including but not limited to whether the City will accept physical delivery or display the Art, where the Art will be displayed within the City Property, the manner of installation and de-installation of the Art, how long the Art will be exhibited,and whether the City will use in any way images of the Art.The Artist shall not install, de-install, or remove the Art from the City Property or modify the Art's display, except with the permission of the City Manager and in conjunction with an authorized City representative. 13. Replace Art. If Artist removes the Art in accordance with Agreement before the end of the Term, the Artist shall replace it with a similar piece if requested by the City. The costs associated with pickup and drop off of the replacement Art shall not be reimbursable by the City. 14. Sale of Art. The Artist hereby agrees to grant the City the right to purchase the Art through the end of the Term. If the City elects to purchase the Art, Artist agrees to sell the Art at the wholesale price listed in Exhibit A. As part of the purchase price, Artist will provide services and advice to the City in writing regarding the permanent installation of the Art and maintenance instructions. This provision does not require the City to purchase the Art. 15. Waiver. A Party's waiver of any provision, right, or remedy under this Agreement must be in writing and signed by an authorized representative of the waiving party(i.e.,the Artist or the City Manager) to be effective. If a Party does waive any provision, right, or remedy under this Agreement,such waiver will not preclude the Party from enforcing any other provision,right, or remedy. A Party's failure, neglect, or delay to enforce the provisions, rights, or remedies of this Agreement will not be construed or deemed to be a waiver of such Party's rights to do so and will not affect the validity or all or any part of this Agreement or prejudice such party's right to take subsequent action. Outdoor Public Art Rev. 10.14.24 Page 7 of 13 16. No Joint Venture.Nothing in this Agreement creates a joint venture,partnership, or agency relationship between the Parties. 17. Binding Effect. This Agreement shall be binding on all Parties, as well as their respective personal representatives, agents, attorneys, heirs, assigns, or successors in interest. 18. Severability Clause. If any provision of this Agreement is declared invalid, void, or unenforceable by a court of competent jurisdiction, the remainder of this Agreement will not be affected, and each remaining provision will be valid and enforceable to the fullest extent permitted by law. 19. E-Verify. Artist shall comply with Section 448.095, Fla. Stat., `Employment Eligibility," including the registration and use of the E-Verify system to verify the work authorization status of employees. Failure to comply with Section 448.095, Fla. Stat. shall result in termination of this Agreement.Any challenge to termination under this provision must be filed in the Circuit Court no later than 20 calendar days after the date of termination. If this Agreement is terminated for a violation of the statute by Artist, Artist may not be awarded a public contract for a period of one(1) year after the date of termination. 20. Anti-Human Trafficking. On or before the Effective Date of this Agreement, Artist shall provide City with an affidavit attesting that the Artist does not use coercion for labor or services, in accordance with Section 787.06(13), Florida Statutes. 21. Discriminatory Vendor and Scrutinized Companies Lists; Countries of Concern. Artist represents that it has not been placed on the "discriminatory vendor list" as provided in Section 287.134,Florida Statutes, and that it is not a"scrutinized company"pursuant to Sections 215.473 or 215.4725,Florida Statutes.Artist represents and certifies that it is not,and for the duration of the Term, will not be, ineligible to contract with City on any of the grounds stated in Section 287.135, Florida Statutes. Artist represents that it is, and for the duration of the Term will remain, in compliance with Section 286.101, Florida Statutes. 22. Sovereign Immunity. Except to the extent sovereign immunity may be deemed waived by entering into this Agreement, nothing herein is intended to serve as a waiver of sovereign immunity by City, nor shall anything included herein be construed as consent by City to be sued by third parties in any matter arising out of this Agreement. 23. Independent Contractor. The Artist is an independent contractor, and nothing in this Agreement shall be construed to constitute the Artist as an employee,agent,or representative of the City. The Artist shall not be supervised by an employee or agent of the City. 24. Governing Law and Venue. This Agreement shall be construed and governed in accordance with the laws of the State of Florida. The sole and exclusive venue for any action arising under or related to this Agreement shall be in the state court in and for Palm Beach County, Florida, and each Party hereby submits to the jurisdiction of said court. Artist agrees to waive all Outdoor Public Art Rev. 10.14.24 Page 8 of 13 defenses to any suit filed in Florida based on improper venue or forum nonconveniens. To ENCOURAGE PROMPT AND EQUITABLE RESOLUTION OF ANY LITIGATION, EACH PARTY HEREBY WAIVES ITS RIGHTS TO A TRIAL BY JURY IN ANY LITIGATION RELATED TO THIS AGREEMENT. 25. Amendments. The Parties may amend this agreement only by mutual written agreement that is executed by both Parties. 26. Entire Agreement. This Agreement and the Exhibits attached hereto constitute all agreements,conditions, and understandings between the parties hereto concerning the subject matter of this Agreement. All representations,either oral or written, shall be deemed merged into this Agreement. No alteration, change, or modification of the terms of the Agreement shall be valid unless made in writing and signed by both parties hereto. Outdoor Public Art Rev. 10.14.24 Page 9 of 13 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed for the uses and purposes therein expressed on the day and year last written below. CITY OF BOYNTON BEACH, ARTIST FLORIDA Ty Penserga,Mayor (Signature) Date: Print Name Approved as to Form By the City Attorney's Office Date Outdoor Public Art Rev. 10.14.24 Page 10 of 13 EXHIBIT A Loaned Art Color photograph(s) of the Art is attached. Title Date of Work Materials Dimensions Publicly Displayed Sales Price Wholesale Price Title Date of Work Materials Dimensions Publicly Displayed Sales Price Wholesale Price Title Date of Work Materials Dimensions Publicly Displayed Sales Price Wholesale Price Title Date of Work Materials Dimensions Publicly Displayed Sales Price Wholesale Price *Wholesale price means the cost of the art to a third-party seller such as an art dealer, art consultant, art gallery owner, or retail store (online or brick & mortar). Outdoor Public Art Rev. 10.14.24 Page 11 of 13 EXHIBIT B Art Transportation Plan Transportation of the Art will be managed by the Artist in coordination with City staff Specific transportation requirements are (List any specific requirements related to transportation): The alternative contact for the Artist regarding transportation is: Name: Company: Phone number: Email: Outdoor Public Art Rev. 10.14.24 Page 12 of 13 Exhibit C Artist Scope of Work, Reimbursement Eligibility, and Payment Schedule Scope of Work Artist shall provide the following services to the City: 1. Loan of the Art described in Exhibit A during the Display Period. 2. Design, fabrication, or modification of the base of the art necessary for installation on concrete bases within the City. 3. A statement about the art and a short bio for publication. 4. If available, videos or links to online videos of the art operating or installed elsewhere. 5. Two high-definition images of the Art at a minimum of 300 dpi 6. Artist shall perform all duties and responsibilities described in Exhibit B. 7. If requested by the City, one public presentation by the Artist. Reimbursement Eligibility Artist may seek reimbursement for the following costs, subject to the reimbursement limits described in the Agreement: 1. Mileage for roundtrip pickup and delivery of the Art or Artist's attendance at the Artist presentation from the Artist's studio to the City Property. Reimbursement shall be at the then- current IRS rate. 2. Costs of a rental truck and gas for round-trip pickup and delivery of the Art to/from the Artist's studio to/from the City Property. Artist must submit receipts documenting actual costs. 3. Art shipping costs charged by standard delivery companies, such as Federal Express,UPS, DHS, US Postal Service, etc. Artist must submit receipts documenting actual costs. Payment Schedule Artist shall be paid in accordance with the following payment schedule: 1. %of Artist Fee upon full execution of this Agreement by the Parties. 2. %of Artist Fee after Artist's removal of the Art. 3. Reimbursement for delivery of Art to the City facility after delivery of the Art to the City and submission of applicable receipts. 4. Reimbursement for Artist's attendance at an Artist presentation after completion of the presentation and Artist's submission of a written reimbursement request. 5. Reimbursement for pickup and removal of Art from the City facility after removal of the Art to the City and submission of applicable receipts. Outdoor Public Art Rev. 10.14.24 Page 13 of 13