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HomeMy WebLinkAboutAnti Incorporated c/o Sheila Klein7A' , I lJ . J ~ 1RN AGREEMENT FOR PUBLIC ARTWORK This Agreement is made and entered into this Z~'v~"~day of June, 2010, by and between the City of Auburn, Washington, a municipal corporation of the State of Washington (the "City") and ANTI INCORPORATED c/o Sheila Klein, whose address and phone number are, 6988 Bayview Edison Road, Bow, Washington, 98232, 360-766-6102 (the "ArtisY'). WHEREAS, the City is currently re-designing the City Hall Plaza (the "Site"); and WHEREAS, the City desires to contract with the Artist to design, build, and install artwork (the "Artwork") for the Site; and WHEREAS, the Work is to be integrated lighting elements on the Site, requiring coordination between the Artist, the City's architects, and the contractor selected to construct the City Hall Plaza, 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 DESIGN, FABRICATION AND INSTALLATION OF PUBLIC ART The Artist shall provide the following services: A. The Artist shall consult with the City's project team regarding designs for the Public Art to be located in the remodeled City Hall Plaza, and shall submit preliminary designs for the Artwork to the City for approval and selection. B. The Artist shall fabricate the Artwork in conformity with the design approved and selected by the City. C. The Artist shall consult with the City's project team and Makers Architecture and Urban Design ("Makers") and the contractor selected to construct the City Hall Plaza ("Contractor") on the installation and precise location for the placement and installation of the Artwork. The Artist shall also coordinate the design, fabrication, and installation of the Artwork with Makers and the Contractor. The location for the placement of the Artwork shall be as approved by the City; provided that the methodology of the installation of the Artwork shall be done in consultation with the Makers and the Contractor. D. The Artist shall install the Artwork at the remodeled City Hall Plaza as an artistic component to the over-all design of the Plaza. E. 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; provided that the City shall be responsible for furnishing foundations, electrical conduits, and any underground preparation for installation of the artwork, as per City specifications. A light pole that will be used throughout the plaza will also be provided by the City per artist specifications and the final electrical connection to the Artwork. Any changes to, departures from, or special requests for the standard pole provided by the City would be the responsibility of the Artist, and the cost difference would be part of the Artist's budget. 1.2 POST-INSTALLATION Agreement for Artwork/City Hall Plaza Pana 1 nf 7 A. The City will provide photo documentation of the Artwork 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 Artwork to the City. The City shall use its best efforts to arrange for publicity for the completed Artwork. C. Upon installation of the Artwork, the Artist shall provide to the City written instructions for appropriate maintenance and preservation of the Artwork. 1.3 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 Arts Commission Subcommittee. B. The City shall notify the Artist in writing of its final acceptance of the Artwork. 1.4 RISK OF LOSS The risk of loss or damage to the Artwork shall be borne by the Artist until final acceptance, and the Artist shall take such measures as are necessary to protect the Artwork from loss or damage until final acceptance, including any protective measures necessary to prevent damage to the Artwork during construction of the Plaza. 1.5 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 Artwork and the obligations contained in this Agreement on the part of the Artist, the ArtisYs agents, representatives, and employees except where such claims arise solely from the negligent acts of the City, its agents, representatives, or employees. 1.6 TITLE Title to the Artwork shall pass to the City upon final acceptance. 1.7 OWNERSHIP OF DOCUMENTS, MODELS Upon final acceptance of the Artwork, all studies, drawings, designs, and models prepared and submitted under this Agreement shall be returned to the Artist and shall belong to the Artist. 1.8 INSURANCE The Artist agrees to obtain, and maintain during the term of this agreement commercial general liability insurance in minimum amounts of not less than ONE MILLION DOLLARS ($1,000,000) per occurrence to protect the City, its agents, officers, elected officials, and employees from any claims by any person for damage to persons or property arising out of or resulting from the ArtisYs 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 and additional insured endorsement to the City prior to commencing performance under the terms of this Agreement. 1.9 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. Agreement for Artwork/City Hall Plaza Page 2 of 7 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 $68,000.00 (fifty 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 irr'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. 2.2 PAYMENT The first payment of twenty thousand dollars and no/100 ($20,000.00) will be paid by the City to the Artist upon completion of and approval of final design drawings. The third payment of finrenty-eight thousand dollars and no/100 ($28,000.00) will be will be paid by the City to the Artist upon completion of fabrication. The third payment of twenty thousand dollars and no/100 ($20,000.00) shall be made to Artist no later than ten (10) days after final acceptance by the City. 2.2 TAXES The Artist is responsible for payment of all local, state, and federal taxes, which may be due from the Artwork as a result of performance under this contract. The Artist understands 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 Artwork 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 Site as established by Makers. Construction is anticipated to begin in August 2010 and completion is projected in December 2010. This contract expires February 1, 2011 at which time an additional contract will be initiated with both parties to address potential additional expenses incurred by the ARTIST due to the delay of the project. ARTICLE 4. WARRANTIES 4.1 WARRANTIES OF TITLE The Artist represents and warrants that: (a) the Artwork is solely the result of the Artistic effort of the Artist; (b) except as otherwise disclosed in writing to the City, the Artwork is unique and original and does not infringe upon any copyright; (c) the Artwork has not, or a duplicate thereof has not, been accepted for sale elsewhere; and (d) the Artwork is free and clear of any liens from any source whatever. 4.2 WARRANTIES OF QUALITY AND CONDITION The Artist represents and warrants, except as otherwise disclosed to the City in writing and in connection with submission of the Proposal, that the execution and fabrication of the Artwork will be performed in a workmanlike manner; and the Ariwork as fabricated and installed, will be free of defects in material and workmanship; and reasonable maintenance Agreement for Artwork/City Hall Plaza Page 3 of 7 of the Artwork 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 Artwork. 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 Artwork except ownership and possession and except as such rights are limited by this Section. In view of the intention that the Artwork in its final dimension shall be unique, the Artist shall not make any additional exact duplicate, three-dimensional reproductions of the final Artwork nor shall the Artist grant permission to others to do so except with the written permission of the City. The Artist grants to the City and its assigns an irrevocable ticense to make representative photographic reproductions of the Artwork 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 Artwork. 5.2 NOTICE All reproductions by the City shall contain a credit to the Artist in the following form: "Title," "year", "Artist". 5.3 CREDIT TO THE CITY The Artist shall use her best efforts to give a credit reading substantially, "An original Artwork owned and commissioned by the City of Auburn, Washington" in any public showing under the Artist' control of the reproductions of the Artwork. 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 Artwork as outlined in Article 5.2 shall be installed by the City. 6.2 MAINTENANCE The City recognizes that maintenance of the Artwork on a regular basis is essential to the integrity of the Artwork. The City shall make reasonable efforts to assure that the Artwork 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 Artwork 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 Artwork will be made. The Artist shall not unreasonably withhold approval for any repair or restoration of the Artwork. If the Artist unreasonably fails to approve any repair or restoration, the City shall have the right to make such repair or restoration. 6.4 DEACCESSIONING OF THE ARTWORK 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 Agreement for Artwork/City Hall Plaza Page 4 of 7 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 the Artwork under the following conditions: A. The Plaza or landscape is structurally or otherwise altered and can no longer accommodate the Artwork, B. The portion of the Plaza or landscape in which the Artwork 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 Artwork. C. The Plaza is sold or acquired by an entity other than City of Auburn. D. There is a documented history of incident(s) that shows the Artwork 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 Artwork. 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, sexual orientation, 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: Maija McKnight Arts Coordinator City of Auburn Parks, Arts & Recreation 910 Ninth Street SE Auburn, WA 98002 Telephone" 253-931-3043 arts@auburnwa.gov Anti Incorporated c/o Sheila Klein 6988 Bayview - Edison Road Bow, Washington 98232 Phone: 360-766-6102 sheklein@fidalgo.net 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. ARTICLE 9. TERMINATION Agreement for Artwork/City Hall Plaza Page 5 of 7 Either party may terminate this Agreement upon written notice to the other party if the other party fails substantially 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, modols, 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 legat 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 Artwork, the Artist agrees to comply with all applicable state and local laws, rules, and regulations. Agreement for Artwork/City Hall Plaza Page 6 of 7 ATTEST: Darnelle Daskam, City Clerk APPROVED AS TO FORM: B. II-leid, MAYOR ncorporated Tax Agreement for Artwork/City Hall Plaza Page 7 of 7 ADDENDUM NO. 1 ADDENDUM TO AGREEMENT BETWEEN ANTI-INCORPORATED c/o SHEILA KLEIN AND THE CITY OF AUBURN RELATING TO AGREEMENT FOR ARTWORK THIS ADDENDUM is made and entered into this a2-4-1 day ofJ , .21W)oO, by and between Anti- Incorporated c/oSheila Klein, (hereina er referred to as "ARTIST") and the CITY 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 23 day of June, 2010. WITNESSETH: WHEREAS, the City is currently re-designing the City Hall Plaza (the "Site"); and WHEREAS, the City desires to contract with the Artist to design, build, and install artwork (the "Artwork") for the Site; and WHEREAS, the Work is to be integrated lighting elements on the Site, requiring coordination between the Artist, the City's architects, and the contractor selected to construct the City Hall Plaza, NOW THEREFORE THE CITY AND THE ARTIST IN CONSIDERATION OF THE CONDITIONS AND COVENANTS HEREIN DO AGREE AS FOLLOWS ITEM ONE REVISION TO ARTICLE 2. COMPENSATION AND PAYMENT SCHEDULE That Section 2.2 of the Agreement is amended to add the following language: The first payment of twenty thousand dollars and no/100 ($20,000) will be paid by the City to the Artist upon completion of and approval of final design drawings. The second payment of eighteen thousand dollars and no/100 ($18,000) will be paid by the City to the Artist upon stamped engineering drawings and presentation to the Downtown Redevelopment Council committee of the hand fabrication design. A third payment of twenty thousand dollars and no/100 ($20,000) will be paid by the City to the Artist upon completion of fabrication. The forth and final payment of ten thousand dollars and no/100 ($10,000) shall be paid by the City to the Artist no later than ten (10) days after final acceptance by the city. ITEM TWO REMAINING TERMS UNCHANGED: That all other provisions of the Agreement between the parties for Agreement for Artwork executed on the 23 day of June, 2010, shall remain unchanged, and in full force and effect. Page 1 IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day and year first above written. CITY F A AN I r NCORP TED ter. By. By. - Peter B. Lewis, Mayor ila ein, Artist Attest: XD~ Danielle E. Daskam. City Clerk Appro d as to rm: Daniel B. H ' ity A orney Page 2 ADDENDUM NO.2 ADDENDUM TO AGREEMENT - BETWEEN ANTI-INCORPORATED c/o SHEILA KLEIN AND THE CITY OF AUBURN RELATING TO AGREEMENT FOR ARTWORK THIS ADDENDUM is made and entered into this day of , 20 , by and between Anti- Incorporated c/oSheila Klein, (hereinafter referred to as "ARTIST") and the CITY 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 23 day of June, 2010. WITNESSETH: WHEREAS, the City is currently re-designing the City Hall Plaza (the "Site"); and WHEREAS, the City desires to contract with the Artist to design, build, and install artwork (the "Artwork") for the Site; and WHEREAS, the Work is to be integrated lighting elements on the Site, requiring coordination between the Artist, the City's architects, and the contractor selected to construct the City Hall Plaza, NOW THEREFORE THE CITY AND THE ARTIST IN CONSIDERATION OF THE CONDITIONS AND COVENANTS HEREIN DO AGREE AS FOLLOWS ITEM ONE REVISION TO ARTICLE 3. TIME OF PERFORMANCE That Section 3.1 of the Agreement is amended to the following language: The services to be required of the Artist shall be completed in accordance with the schedule for completion of the Site as established by Makers. Construction began in August 2010 and estimated completion projected in March 2011. The contract expires in April 30, 2011 at which time an additional contract will be initiated with both parties to address potential additional expenses incurred by the ARTIST due to the delay of the project. ITEM TWO REMAINING TERMS UNCHANGED: That all other provisions of the Agreement between the parties for Agreement for Artwork executed on the 23 day of June, 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. Page 1 T_Y AUBU ANTI-I f C RPb By: By Peter B. Lewis, Mayor Sheila Klein, 1Artist Attest: Dan e E.baskam. City Clerk Appro ed as to form: Daniel B. Heid, City Attorney I i I i Page 2 'I