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HomeMy WebLinkAbout4859 RESOLUTION NO. 4 8 5 9 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURW, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO ENTER INTO A CONTRACT WITH MICHAEL MCLAUGHLIN TO DESIGN, FABRICATE, AND INSTALL A PUBLIC ART PIECE INTO THE DESIGN OF THE NEW LEA HILL PARK WHEREAS, the City of Auburn is currenUy designing the new Lea Hill Park; and WHEREAS, the City desires to contract with Artist Michael McLaughlin to design, build and install artwork for this site; and WHEREAS, the art work is to be a design component of Lea Hill Park, requiring coordination between the Artist and the City's Landscape Architects. NOW, THEREFORE, THE CITY COUNCIL OF AUBURN, WASHINGTON, HEREBY RESOLVES as follows: Section 1 The Mayor of the City of Auburn is hereby authorized to enter into an agreement with Michael McLaughlin to design, fabricate, and install the public art work, in substantial conformity with the agreement attached hereto and designated as Exhibit "A", and incorporated by reference in this resolution. Section 2. The Mayor is further authorized to implement such administrative procedures as may be necessary to carry out the directions of this legislation Section 3. This resolution shall be in full force and effect upon passage and signatures hereon. --------------- Resolution No. 4859 September 11, 2012 Page 1 SIGNED and DATED this �� day of October, 2012. CI OF AUBURN _� — PETER B. LEWIS, MAYOR ATTEST � �� �� �anielle E. Daskam, City Cle c APPROVED AS TO FORM: nie . ei , ity ey --------------- Resolution No. 4859 September 11, 2012 Page 2 AGREEMENT FOR ARTWORK This Agreement is made and enterod inm this�_day of Septebmer,201�t by and between the City of Aubiun,Washington,a municipal corporaaon of the State of WashingWn("City")and Michael McLaughlin,whose address is 31 Torrington Heighu Road,Torrington,CT 06790,herein referred to as"AR'tIST' WHEREAS,the Ciry desires to contract with Artist to design,build and install artwork("Work'�for the Lea Hill Park;and WHEREAS,the Artist was selected by the City t6rough a procedure approved by the Ciry of Aubum to design, ezecute,fabricate,install or supervise installation of a public artwork, locaud at the Aubum's Lea Hill Park,herein refeired to as the"siu" NOW TF�REFORE THE CITY AND T'FIE ARTIST IN CONSIDERATION OF THE CONDITIONS AND COVENANTS HEREIN DO AGREE AS FOLLOWS: L ARTICLE 1'. SCOPE OF SERVICE 1.1 GENERAL The Artist shall, in consultation with t6e City's landscape architect, Susan Black&Associates,the Site project team and the Auburn Parks,Arts&Recreation StafF and Aubwn Arts Commission. The arrist is eacpected to coordinate the design,fabrication and installation with the site project uam and the Auburn Pazks,Arrs&Recreation and Aubum Arts Commission. The Artist shall be responsible for all services and s6all furnish all supplies,material,and equipment as necessary for the design,execution,fabrication,traasportation and installation of the Work at the Site. The Artist shall coordinate the design,fabrication and installation of the Work with Susan Black& Associates and the contractor selected to construct Lea Hill Pazk("Contractor"). 1.2 PROJECT The Work is divided into two phases:Phase I,related to the Work desig�proposal and final design proposal approval by the Ciry;Phase II,rolated 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 wmpensation to the Artisu. 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 recommended by the City of Aubum Arts Commission for approval by the Auburn City Cauncil. A. The Artist shall provide all labor and materials necessary to: 1 Produce and complete a finished work of arr, 2. Deliver the artwork; 3. Install the artwork in accordance with the a�eed upon schedule B. The Artist will seek out regular updates from the Ciry on deadline relevant to the art project. C. The City shall have the right to review the Work at reasonable times during fabricetion D. The Work shall be completed and installed at the site in compliance with City codes and with approved Work installation scheduled by the City 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 mutoal ageement by the City and the Artist. B. The City shall approve installation plans presented by the Artist prior to installation Resolution No.4859-Michael Mdeughiin Agreement Por Public Art-Lea Hill Perk Pann t M fi C. Sice installation shall be prepared by the City per Artist specifications D. During installation,the artist shall seciue t6e Site and rnsure the safety of the public and the Work. T6e City shall determine when installation is complete and shall inspect Site during installation. 1.5 POST-QISTALLATION A. The City will provide photo docummtation of the Work for Ciry files. T6e City will provide a copy of t6is documenmtion W the Artist. B. The Arrist shall be available at suc6 time or times as may be agreed between the City and tlie Artist to participate any presentation ceremonies relating to the Vansfer of the Work to the City The City shall use its best efforts to arrange for publicity for the compleud Work. C. Upon installation of the Work,the Artist shall provide to the City written insmicrions for appropriate maintenance and preservaHon of the Work. 1.6 FINAL ACCEPTANCE A. The Artist shall advise the City in writing when all services requ'ved have been completed in substantial conformity as presented to the Public Art Subcommittee. B. The City shall notify t6e 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 bome by the Artist until final acceptance,and the Artist shall take such measures as aze necessary to prouct the Work from loss or damage�mtil final acceptance, including any protective measures necessary to prevent damage to the Work during construction of the Center. 1.8 INDEMNIFICAI'[ON The Artist agrees to indemnify,defend,aad hold the Gity,its agems,representatives,and empioyees harmless from and against any and all claims,causes of action or demands or mry form of liability of any nature arising out of the performance of the Work and the obligations contained'm this Agreement on the part of the Artist,the Artist's agenu,representatives,and employees except where such claims arise solely from the negligent acts of the City,its agenu,represematives,or employees. 1.9 TiTLE Title w 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,aad models prepared and submitted under this Agreement shall be retumed to the Artist and shall belong to the Artist. 1.11 INSURANCE 7'he Artist agrees to obtain,and maintain during the term of this agreement comprehensive liability insurance in minimum amounu of not less than ONE MILLION DOLLARS($1,000,000)per occurrence to protect the City,i�agenu,officers,and employees from any claims by any person for damage to persons or properry azising out of or resulting from the ArtisYs performance�mder thic Agreement 1'he insurance policy shall name the City OF AUBURN as additionally insured. The polity shall require a minimum of thirty(30)days prior written notice to the Ciry of any cancellation or expiration of the policy or azry modification of aay provisions of the policy. The Artist shall be required to provide a CertiScate of Insurance to the Ciry orior to commrncing perFormance�mder the terms of this A�eement 1.12 INDEPENDENT CONTRACTOR/ASSIGNMENT The parties agree and�mderstand that the Artist is an independent contraMOr and not the agent or employee of the City and that no liability shall attach to the City by reason of entering iato this RasoluGon XXX—Michael MeLeughlin Agreamant for Publlc Art—Lea Hill Perk Pqnn�M R Agreement except as otherwise provided herem. The parties agree that this Agreement may not be assigned in whole or in part without t6e written consent of the City ARTICLE 2. COMPENSATION AND PAYMENT SCHEDULE 2.1 FEE The City shall pay t6e Artist for satisfactory completion of the artwork ia the total fixed amount of $30,000.00(thirry thousand and no/100 U.S. Dollars)which shall constitute full comprnsation for aIl services,engineering permits and materials to be perfortned and fumished by the Artist under tlils Agreement. All fees shall be paid"m accordance with standard City business practices.At each fee/fabricadon Phase outlined above,t6e Artist will submit a brief written report,which describes the progress to date,and invoice the City at thaz time. 2.2 PAYMENT The fiist paymem of 1/3 of$30,000.($10,000.00)wilt be paid by the City W the Artist upon si�ing this Agreemem.The second payment of 1/3 of$30,000($10,000.00)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$30,000($10,000.00)s6a11 be made to Artist no later than ten(]0)days after the delivery and installarion as specified in this Agreemem by ARist. 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 mmder this comract. Arrist understand that taxes are included in the agreed upon fee set forth in Article 2.1. 2.3 ARTIST EXPENSES The Ardst shalJ be responsible for the paymem oF all shippiug charges,the cosu of transporting the Work to the Site,the costs of all aavel by the Artist and the Artist's ageMS and employees necessary for the proper performance of the services required under tlus Agreement,and all other expenses related to the performance of this Agreemem. ARTICLE 3. TIME OF PERFORMANCE 3.1 DURATION The services to be required of the Actist shall be completed in accordance with the sc6edule for completion of the Lea Hill Pazk as established by Susan Black&Associates.Construction is anricipated occur Spring 2014. ARTICLE 4. WARRANTiES 4.1 WARRANTIES OF TITLE The Artist represmts snd warranu that: (a)the Work is solely the result of the Artistic effort of the Artist;(b)except as otherwise disclosecl 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 t6ereof has not,been accepted for sale elsewhere;and(d)the Work is free and clear of any liens from any so�uce whatever. 4.2 WARRANTIES OF QUALTCI'AND CONDITION The Artist represenu and warranu,except as offierwise disclosed to the City in writing and in connection with submission of the Proposal,that the executian and fabrication of the Work will be performed in a worlananlike manner;and the Work as fabricaud and installed,will be&ee of defects in material and worlananslilp;and reasonable maintenance of the Work will not requae procedures substantially in excess of those described in the maintenance recommendadons to be submitted by the Artist. The warranties described in this section shall survive for a period of three(3)years a8er the ' final acceptance of the Work. The City shall give notice to the Artist of any observed breach with reasonable prompmess. T6e Artist s6a11,at the request of t6e City,and at no cost to the City,cure Resolutlon XXX—Michael McLeughlin Agreement for Public AR—Lee HiII Park Pana'i rd R reasonably and promptly the breach of any such wartanty which is curable by the Artist and which cure is cousistent with professional conservation standards. ARTICLE S. REPRODUCTION RIGHTS 5.1 GENERAL 1'he Artist retains all rights under the Copyright Act of 1976 and all other righu in and to the Work except ownership and possession and except as such rights are limited by this Sectioa In view of the imention that the Work in its final dimension shall be unique,the Artist shall not make any additional exact duplicate,three-dimensional reproductions of the final Work nor shall the Artist grant permission to others to do so eaccept with the written permission of the City The Artist grants to the City and iu assi�s an irrevocable license to make representative photographic reproductions of the Work for non-commercial purposes,inciuding but not limited to reproductions used in brochures, media publiciry,nou cards,and catalogues or other similaz publications,provided that these righu aze 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, 53 CREDIT TO Tf�CITY The Artist shall use his best efforts to give a credit reading substanrially,"An origina]W ork owned and commissioned by the City of Auburn,Washington"in atry public showing under the ArtisY control of the reproducrions 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 Ciry,for review and approval,specified plaque dimensions six(6)weeks prior to the installazion. 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. 7'he City shall make reasonable efforts to assure that the Work is properly maintained and protected,taking into account the instructians of the Artist provided in the maintenance agreement and shall make reaconable efforts to protect and maintain the Work against the ravages of time, vandalism,and the elemenu. 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 wit6hold approval for any repair or restoration of the Work. If the.4rtist unreasonably fails to approve any repa'v or restoration,the Ciry shall have the right to make such repair or restoration. 6.4 DEACCESSIOIVING OF THE WORK In the circumstance where a commissioned artwork is physically part of the build'mg or lacidscape and it is not an independent object(s)that can be safely removed,the City may require the Artist to waive VARA(V isual Artists Righu Act of 1990)in regazds only to the destruction of the artwork.Prior to the destruction of the artwork,the City will attempt to contact the Artist and secure t6e situation.In the event that the remodeling of the building or tandscape destroys part of the artwork,the City will de-access the artwork and,at the request of t6e Artist,remove any attribution to the Artist.The City reserves the right to de-access artwork under the following conditions: Resolution XXX—Michael McLaughlin Agreement for Public Art—Lea Hill Perk Pann b nt fi A. The Site or Iandscape is structurally or otherwise altered and can no longer accommodau the Work, B. The portion of the Site or Iandscape in which the Work is located is made publicly inaccessible as a result of new consvuction,demolition,or security enhancement,or has iu surrounding envfronment altered in a way that significantly md adversely impacts the Worlc C. The Site is sold or acquued by an entity other than City of Auburn. D. There is a documented history of incideet(s)that shows the VJork is a ttveat to public safety 6.5 PERMANENT RECORD The City shall maintain on permanent file a record of t6is Agreemem and of the location and disposition of the Work. 6.6 ARTIST ADDRESS The Artist shall notify t6e City of changes in his/her address. The failure to do so wkhin 30 days of said change,if such failure preveuu the City from locating or notifying the Artist where required under the terms of this Agreemeat,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. ARTTCLE 7. NON-DISCRIMINATION 7'he Artist shall comply with all federal,stau,and local Iaws 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 writiag and shall be deemed sufficiently given or served if smt by registered or certified mail addressed to the respective parties as follows Aubum Arts Commission Michael McLaughlin City of Aubum 31 Tomngton Heights Rd Parks,Arts&Recreation Torrington,CT 06790 910 Ninth Street SE 86Q�26-I 123 Aubum,WA 98002 contact(��mimsculpture.com Telephone" 253-931-3043 www.mjmsculpture.com Either party may,by like noUCe az any time,desi�ate a different address to which notices shall be sent. Norice in accordance with these provisions shall be deemed received when mailed. ARTTCLE 9. TERMiNATION Either parry may terminate this A�eemem upon written notice to the other parry if the other party fails substantially to perform in accordance with the terms of this Agreement through no fault of the party terminaring the Agreemmt. In the event of default by the City,the City shall prompdy compensate the Artist for all services performed by the Artist prior to urmination. In t6e event of default by the Arcist,all fmished and imfinishetl drawings, sketches,photographs,models,and other work products under this Agreement shall become the City's property 7'he Ciry shall compensate the Artist for all work as performed prior to termination. Notwithstanding,the Artist shall not be relieved of liabiliry to the Ciry for damages sustained by thp Ciry by virtue of any breach of this Agreement by the Artist and the City may reasonably withhold payinents to the Artist until such time as the exact amount of such damages due the City from the Artist is detbrinined. Resolution XXX—MlChael McLeughlin Agreement for Public AR—Lea Hill Park Pann 5 nf R ARTICLE 10. GENERAL PROVISIONS 10.1 ENTIRE AGREEMENT This agreemetrt constituus the entire agceemeM betwern the parties and may not be changed or modified nor any provision hereof waived except in writing ageed to by bot6 parties. 10.2 APPLICABLE LAW This AgreemeM and the righu of the parties hereunder shall be govemed by the inurpreted in accordance with the laws ofthe State of Washington and veaue for any action herounder shall be in King County,Washington. This Agreemern shall be construed in accordmce with my and all questions with respect hereto shall be dMermined by t6e laws of the State of Washington. 103 COSTS TO PREVAILING PAR'fY In the event of such litigation or other legal action,to enforoe any righu,responsibilities or obligazions under this Agreement,the prevailing parties shall be entided ta roceive its reasonable costs and attomey's fees. 10.4 COMPLIANCE WITH APPLICABLE LAWS In the performance of the Wark,the Artist agrees to comply with all applicable state and local laws, niles,and regulaaons. CITY � r � PETER B. LEWIS MAYOR ATTEST amelle Daskam,Ci�k � AP VED TO FO Danibl .Heid, i Attome ARTIST � Michael McLaughlin Tax#• s42 5� ►8'u�{ Resolutlon XXX—Michael McLaughlin Agreemarrt for Public Art—Lea Hill Park Pann R M fi