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AGREEMENT FOR ARTWORK
This Agreement is made and entered into this o1 day of January, 20 >0, by and between the City
of Auburn, Washington, a municipal corporation of the State of Washington ("City") and BRUCE MEYER,
whose address and phone number are, PO Box 507, Orcas, WA 9 98280, 360-298-2620. ("ArtisY')
WHEREAS, the City desires to contract with Artist to design, build and install artwork ("Work") for the
Auburn Gymnasium Climbing Wall; and
WHEREAS, the Artist was selected by the City through a procedure approved by the City of Auburn
to design, execute, fabricate, install or supervise installation of a public artwork, located at the Auburn Les
Gove Park Gymnasium Climbing wall, herein referred to as the "site".
NOW THEREFORE THE CITY AND THE ARTIST IN CONSIDERATION OF THE CONDITIONS
AND COVENANTS HEREIN DO AGREE AS FOLLOWS:
ARTICLE 1. SCOPE OF SERVICE
1.1 GENERAL
The Artist shall, in consultation with the City's architect, BLRB Architects ("BLRB"), the Site
project team and the Auburn Parks, Arts & Recreation Staff and Auburn Arts Commission.
The artist is expected to coordinate the design, fabrication and installation with the site
project team and the Auburn Parks, Arts & Recreation and Auburn Arts Commission.
The Artist shall be responsible for all services and shall furnish all supplies, material, and
equipment as necessary for the design, execution, fabrication, transportation and installation
of the Work at the Site.
The Artist shall coordinate the design, fabrication and installation of the Work with BLRB and
the contractor selected to construct the Auburn Gymnasium ("Contractor").
1.2 PROJECT
The Work is divided into two phases: Phase I, related to the Work design proposal and final
design proposal approval by the City; Phase II, related to execution, fabrication,
transportation and installation of Work. Each phase shall have a defined Scope of Work
describing the services provided by the Artist and hence the relative compensation to the
Artists.
1.3 EXECUTION OF WORK
The Artist shall approach both Phases of the Work as described above in accordance with
the approved model and/or drawings provided, which will be presented by the Artist to the
Panel Review Committee for the Work and which are recommended by the City of Auburn
Arts Commission for approval by the Auburn City Council.
A. The Artist shall provide all labor and materials necessary to:
1. Produce and complete a finished work of art;
2. Deliver the artwork;
3. Install the artwork in accordance with the agreed upon schedule
B. The Artist will seek out regular updates from the City on deadline relevant to the art
project.
C. The Artist shall coordinate the schedule for implementation and completion of studio
fabrication with the Auburn Arts Commission and City Project Coordinator.
D. The City shall have the right to review the Work at reasonable times during fabrication
E. The Work shall be completed and installed at the site in compliance with City codes and
with approved Work installation scheduled by the City.
Agreement for ArtworklGymnasium
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1.4 DELIVERY AND INSTALLATION
A. The Artist shall deliver and install the completed Work at the site in compliance with the
schedule set forth by mutual agreement by the City and the Artist.
B. The City shall approve installation plans presented by the Artist prior to instailation
C. Site installation shall be prepared by the Artist with City approval
D. During installation, the artist shall secure the Site and ensure the safety of the public and
the Work. The City shall determine when installation is complete and shall inspect Site
during installation.
1.5 POST-INSTALLATION
A. The City will provide photo documentation of the Work for City files. The City will provide
a copy of this documentation to the Artist.
B. The Artist shall be available at such time or times as may be agreed between the City
and the Artist to attend any presentation ceremonies relating to the transfer of the Work
to the City. The City shall use its best efforts to arrange for publicity for the completed
Work.
C. Upon installation of the Work, the Artist shall provide to the City written instructions for
appropriate maintenance and preservation of the Work.
1.6 FINAL ACCEPTANCE
A. The Artist shall advise the City in writing when all services required have been
completed in substantial conformity as presented to the Community Center
Subcommittee.
B. The City shall notify the Artist in writing of its final acceptance of the Work.
1.7 RISK OF LOSS
The risk of loss or damage to the Work shall be borne by the Artist until final acceptance,
and the Artist shall take such measures as are necessary to protect the Work from loss or
damage until final acceptance, including any protective measures necessary to prevent
damage to the Work during construction of the Center.
1.8 INDEMNIFICATION
The Artist agrees to indemnify, defend, and hold the City, its agents, representatives, and
employees harmless from and against any and all claims, causes of action or demands or
any form of liability of any nature arising out of the performance of the Work and the
obligations contained in this Agreement on the part of the Artist, the Artist's agents,
representatives, and employees except where such claims arise solely from the negligent
acts of the City, its agents, representatives, or employees.
1.9 TITLE
Title to the Work shall pass to the City upon final acceptance.
1.10 OWNERSHIP OF DOCUMENTS, MODELS
Upon final acceptance of the Work, all studies, drawings, designs, and models prepared and
submitted under this Agreement shall be returned to the Artist and shall belong to the Artist.
1.11 INSURANCE
The Artist agrees to obtain, and maintain during the term of this agreement comprehensive
liability insurance in minimum amounts of not less than ONE MILLION DOLLARS
($1,000,000) per occurrence to protect the City, its agents, officers, and employees from any
claims by any person for damage to persons or property arising out of or resulting from the
Artist's performance under this Agreement. The insurance policy shall name the City OF
AUBURN as additionally insured. The policy shall require a minimum of thirty (30) days prior
written notice to the City of any cancellation or expiration of the policy or any modification of
any provisions of the policy. The Artist shall be required to provide a Certificate of Insurance
Agreement for Artwork/Gymnasium
Page 2 of 6
to the City 2fl0f to commencing performance under the terms of this Agreement.
1.12 INDEPENDENT CONTRACTOR/ASSIGNMENT
The parties agree and understand that the Artist is an independent contractor and not the
agent or employee of the City and that no liability shall attach to the City by reason of
entering into this Agreement except as otherwise provided herein. The parties agree that
this Agreement may not be assigned in whole or in part without the written consent of the
City.
ARTICLE 2. COMPENSATION AND PAYMENT SCHEDULE
2.1 FEE
The City shall pay the Artist for satisfactory completion of the artwork in the total fixed
amount of $15,000.00 (fifteen thousand and no/100 U.S. Dollars) which shall constitute full
compensation for all services, engineering permits and materials to be performed and
furnished by the Artist under this Agreement. All fees shall be paid in accordance with
standard City business practices. At each fee/fabrication Phase outlined above, the Artist will
submit a brief written report, which describes the progress to date, and invoice the City at
that time.
2.2 PAYMENT
The first payment of 1/3 of $15,000. ($5,000.00) will be paid by the City to the Artist upon
signing this Agreement. The second payment of 1/3 of $15,000 ($5,000.00) will be paid by
the City to the Artist upon completion of and approval of final design drawings. The final
payment of the remaining 1/3 of $15,000 ($5,000.00) shall be made to Artist no later than ten
(10) days after the delivery and installation as specified in this Agreement by Artist.
2.2 TAXES
The Artist is responsible for payment of all local, state, and federal taxes, which may be due
from the Work as a result of performance under this contract. Artist understand that taxes
are included in the agreed upon fee set forth in Article 2.1.
2.3 ARTIST EXPENSES
The Artist shall be responsible for the payment of all shipping charges, the costs of
transporting the Work to the Site, the costs of all travel by the Artist and the Artist's agents
and employees necessary for the proper performance of the services required under this
Agreement, and all other expenses related to the performance of this Agreement.
ARTICLE 3. TIME OF PERFORMANCE
3.1 DURATION
The services to be required of the Artist shall be completed in accordance with the schedule
for completion of the Gymnasium as established by BLRB Architects. Construction is
anticipated to begin in May 2010.
ARTICLE 4. WARRANTIES
4.1 WARRANTIES OF TITLE
The Artist represents and warrants that: (a) the Work is solely the result of the Artistic effort of
the Artist; (b) except as otherwise disclosed in writing to the City, the Work is unique and
original and does not infringe upon any copyright; (c) the Work has not, or a duplicate thereof
has not, been accepted for sale elsewhere; and (d) the Work is free and clear of any liens from
any source whatever.
4.2 WARRANTIES OF QUALITY AND CONDITION
Agreement for Artwork/Gymnasium
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The Artist represents and warrants, except as otherwise disclosed to the City in writing and
in connection with submission of the Proposai, that the execution and fabrication of the Work
will be performed in a workmanlike manner; and the Work as fabricated and installed, will be
free of defects in material and workmanship; and reasonable maintenance of the Work will
not require procedures substantially in excess of those described in the maintenance
recommendations to be submitted by the Artist. The warranties described in this section
shall survive for a period of three (3) years after the final acceptance of the Work. The City
shall give notice to the Artist of any observed breach with reasonable promptness. The
Artist shall, at the request of the City, and at no cost to the City, cure reasonably and
promptly the breach of any such warranty which is curable by the Artist and which cure is
consistent with professional conservation standards.
ARTICLE 5. REPRODUCTION RIGHTS
5.1 GENERAL
The Artist retains all rights under the Copyright Act of 1976 and all other rights in and to the
Work except ownership and possession and except as such rights are limited by this
Section. In view of the intention that the Work in its final dimension shall be unique, the
Artist shall not make any additional exact duplicate, three-dimensional reproductions of the
finat Work nor shall the Artist grant permission to others to do so except with the written
permission of the City. The Artist grants to the City and its assigns an irrevocable license to
make representative photographic reproductions of the Work for non-commercial purposes,
including but not limited to reproductions used in brochures, media publicity, note cards, and
catalogues or other similar publications, provided that these rights are exercised in a manner
which depicts the integrity of the Work.
5.2 NOTICE
All reproductions by the City shall contain a credit to the Artist in the following form: "Title,"
"year", "ArtisY".
5.3 CREDIT TO THE CITY
The Artist shall use his best efforts to give a credit reading substantially, "An original Work
owned and commissioned by the City of Auburn, Washington" in any public showing under
the ArtisY control of the reproductions of the Work.
ARTICLE 6. ARTIST'S RIGHTS
6.1 IDENTIFICATION
The City will provide a plaque(s) to be delivered to the Artist prior to installation. The Artist
shall provide to the City, for review and approval, specified plaque dimensions six (6) weeks
prior to the installation. The plaque identifying the work as outlined in Article 5.2 shall be
installed by the City.
6.2 MAINTENANCE
The City recognizes that maintenance of the Work on a regular basis is essential to the
integrity of the Work. The City shall make reasonable efforts to assure that the Work is
properly maintained and protected, taking into account the instructions of the Artist provided
in the maintenance agreement and shall make reasonable efforts to protect and maintain the
Work against the ravages of time, vandalism, and the elements.
6.3 REPAIRS AND RESTORATION
The City shall have the right to determine when and if repairs and restorations to the Work
will be made. The Artist shall not unreasonably withhold approval for any repair or
restoration of the Work. If the Artist unreasonably fails to approve any repair or restoration,
the City shall have the right to make such repair or restoration.
Agreement for Artwork/Gymnasium
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6.4 DEACCESSIONING OF THE WORK
In the circumstance where a commissioned artwork is physically part of the building or
landscape and it is not an independent object(s) that can be safely removed, the City may
require the Artist to waive VARA (Visual Artists Rights Act of 1990) in regards only to the
destruction of the artwork. Prior to the destruction of the artwork, the City will attempt to
contact the Artist and secure the situation. In the event that the remodeling of the building or
landscape destroys part of the artwork, the City will de-access the artwork and, at the
request of the Artist, remove any attribution to the Artist. The City reserves the right to
de-access artwork under the following conditions:
A. The Gymnasium or landscape is structurally or otherwise altered and can no longer
accommodate the Work,
B. The portion of the Gymnasium or landscape in which the Work is located is made
publicly inaccessible as a result of new construction, demolition, or security
enhancement, or has its surrounding environment altered in a way that significantly
and adversely impacts the Work.
C. The Center is sold or acquired by an entity other than City of Auburn.
D. There is a documented history of incident(s) that shows the Work is a threat to
public safety.
6.5 PERMANENT RECORD
The City shall maintain on permanent file a record of this Agreement and of the location and
disposition of the Work.
6.6 ARTIST ADDRESS
The Artist shall notify the City of changes in his/her address. The failure to do so within 30
days of said change, if such failure prevents the City from locating or notifying the Artist
where required under the terms of this Agreement, shall be deemed a waiver by the Artist of
the right subsequently to enforce those provisions of this Article 6 that require the express
approval of the Artist.
ARTICLE 7. NON-DISCRIMINATION
The Artist shall comply with all federal, state, and local laws and ordinances prohibiting
discrimination and employment with regard to age, sex, race, color, creed, national origin, or
physical, mental handicap.
ARTICLE 8. NOTICES
Any notice required or permitted under this Agreement may be personally served or given in writing
and shall be deemed sufficiently given or served if sent by registered or certified mail addressed to
the respective parties as follows:
Auburn Arts Commission
City of Auburn
Parks, Arts & Recreation
910 Ninth Street SE
Auburn, WA 98002
Telephone" 253-931-3043
Bruce Myers
PO Box 507
Orcas WA 98280
360-376-1043 (home)
360-298-2620 (cell)
myerssculpture@yahoo.com
Either party may, by like notice at any time, designate a different address to which notices shall be
sent. Notice in accordance with these provisions shall be deemed received when mailed.
Agreement for Artwork/Gymnasium
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ARTICLE 9. TERMINATION
Either party may terminate this Agreement upon written notice to the other party if the other party
fails substantiaily to perform in accordance with the terms of this Agreement through no fault of the
party terminating the Agreement.
In the event of default by the City, the City shall promptly compensate the Artist for all services
performed by the Artist prior to termination. In the event of default by the Artist, all finished and
unfinished drawings, sketches, photographs, models, and other work products under this Agreement
shall become the City's property. The City shall compensate the Artist for all work as performed prior
to termination. Notwithstanding, the Artist shall not be relieved of liability to the City for damages
sustained by the City by virtue of any breach of this Agreement by the Artist and the City may
reasonably withhold payments to the Artist until such time as the exact amount of such damages due
the City from the Artist is determined.
ARTICLE 10. GENERAL PROVISIONS
10.1 ENTIRE AGREEMENT
This agreement constitutes the entire agreement between the parties and may not be
changed or modified nor any provision hereof waived except in writing agreed to by both
parties.
10.2 APPLICABLE LAW
This Agreement and the rights of the parties hereunder shall be governed by the interpreted
in accordance with the laws of the State of Washington and venue for any action hereunder
shall be in King County, Washington. This Agreement shall be construed in accordance with
any and all questions with respect hereto shall be determined by the laws of the State of
Washington.
10.3 COSTS TO PREVAILING PARTY
In the event of such litigation or other legal action, to enforce any rights, responsibilities or
obligations under this Agreement, the prevailing parties shall be entitled to receive its
reasonable costs and attorney's fees.
10.4 COMPLIANCE WITH APPLICABLE LAWS
In the performance of the Work, the Artist agrees to comply with all applicable state and local
laws, rules, and regulations.
CI OF UBUR ARTIST
~
PETE . EWIS, MAYOR U E MEYERS
ATTEST:
Danielle Daskam, City Clerk
A=DRZ
betKiel B. Heid, City Att rney
Tax ~
Agreement for Artwork/Gymnasium
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ADDENDUM NO. 1
ADDENDUM TO AGREEMENT
BETWEEN BRUCE MYERS AND THE CITY OF AUBURN
RELATING TO AGREEMENT FOR ARTWORK
.
. THI~ ADDENDUM is made and entered into this day of
, 200~ , by and between Bruce Myers, (hereinafter referred to as "ARTIST") and the
ITY OF AUBURN, a municipal corporation of the State of Washington (hereinafter
referred to as the "CITY"), as an addendum to the Agreement between the parties for
Agreement for Artwork executed on the 29 day of January, 2010.
WITNESSETH:
WHEREAS, the City desires to contract with Artist to design, build and install
artwork "WORK" for the Auburn Activity Center Climbing Wall; and
WHEREAS, the Artist was selected by the City through a procedure approved by the
City of Auburn to design, execute, fabricate, install or supervise installation of a public
artwork, located at the Auburn Les Gove Park Activity Center climbing wall, herein referred
to as the "site".
NOW THEREFORE in consideration of their mutual covenants, conditions and
promises, the PARTIES HERETO HEREBY AGREE as follows:
ITEM ONE REVISION TO Article 1. Scope of Service
That Section 1.1 of the Agreement is amended to add the following language:
The artist installation includes the attachment of the artwork to the structural
gate frame of galvanized steel which includes the structural exterior
perimeter, horizontal suppart bars, rolling devises and locking tab. The gate
frame is to be provided by the contractor and artwork will be installed prior to
the installation on the building. The contractor is responsible for the
installation of the gate onto the building.
ITEM TWO REVISION TO Article 1. Scope of Service: That Section 1.4 C. of the
Agreement is amended to read as follows:
Building installation shall be provided bythe contractorwith and coordinated
with artist for special considerations.
Page 1
ITEM THREE REVISION TO Article 2. Compensation and Payment Schedule:
That Section 2.1 of the Agreement is amended to read as follows:
The City shall pay the Artist for satisfactory completion of the artwork in the
total fixed amount of $14,000 (fourteen thousand and no/100 U.S. Dollars)
which shall constitute full compensation for all services, engineering permits
and materials to be perFormed and furnished by the Artist under this
Agreement. All fees shall be paid in accordance with standard City business
practices. At each fee/fabrication Phase outlined below, the Artist will submit
a brief written report, which describes the progress to date, and invoice the
City at that time.
ITEM FOUR REVISION TO Article 2. Payment: That Section 2.2 of the
Agreement is amended to read as follows:
The first payment of $5,000 (five thousand) has been paid by the City to the
Artist upon signing of the initial Agreement. The second payment of $5,000
(five thousand) will be paid by the City to the Artist upon completion and
approval of final design drawings. The final payment of $4,000 (four
thousand) shall be made to the Artist not later than ten (10) days after the
delivery and installation as specified in this agreement by the Artist.
ITEM FIVE REMAINING TERMS UNCHANGED: That all other provisions of the
Agreement between the parties for Agreement for Artwork executed on the 29 day of
January, 2010, shall remain unchanged, and in full force and effect.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
day and year first above written.
CITY OF AUBURN
gy:
Peter B. Lewis , Mayor
By:
Danielle E. Daskam. City Clerk
Page 2
Approved as to form:
, ' AW~6,~~
171-1
Daniel B. Heid, CitY Attorney
ARTIST
Bruce ers
i
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