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HomeMy WebLinkAbout2025-0361 - - John Fleming_Downtown Park Public Art Contract - Docusign Envelope ID:A666FD8D-5554-4E74-90F7-B61FB95C317D AGREEMENT FOR ARTISTIC SERVICE Between The City of Auburn And John Fleming This Agreement is made and entered into this 31st day of July, 2025, by and between the City of Auburn, Washington, a municipal corporation of the State of Washington("City") and JOHN D. FLEMING of John Fleming Art& Architecture ("Artist"), whose address is 2832 NW 69th Street, Seattle, WA, 98117. WHEREAS, the City seeks to commission a public art installation at Auburn Downtown Park("Project") for the purpose of park revitalization and community enhancement; and NOW, THEREFORE, in consideration of their mutual promises set out in this Agreement, Artist and the City agree as follows: WHEREAS, the Work is to be an integrated design component of the Auburn Downtown Park, requiring coordination between the Artist, the City's Parks Planning Division, and any contractor(s) selected to work with the design and installation of the Work 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, design the Work, which shall be integrated into the over-all design of new Auburn Downtown Park. 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 the City of Auburn staff. 1.2 PROJECT The Work is divided into four phases: Phase I, related to the contract for the Work to be commissioned by the City; Phase II, related to the Work design proposal and final design proposal approval by the City; Phase III, related to the fabrication of approved Work design to the satisfaction of the City; Phase IV, 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 Artist. The Exhibit A Agreement for Downtown Park Public Artwork Page 1 of 10 Docusign Envelope ID:A666FD8D-5554-4E74-90F7-B61FB95C317D Work shall be completed according to above phases and according to timeline agreed upon by the artist and the City as follows: A. Phase I— Due by July 25, 2025: Signed Agreement for Artwork B. Phase II— Due by December 1, 2025: Final Engineered Design Drawings C. Phase III - Due by date to be determined in 2026: Fabrication of Artwork D. Phase IV- Due by date to be determined in 2026-2027: Installation of Artwork 1.3 EXECUTION OF WORK The Artist shall approach all 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 and then City Council for approval. The Work shall, at all times, be subject to the City's general review and approval, and approval must be made by the City after each Project Phase. The ARTIST shall confer with the City periodically during the progress of the Work, and shall prepare and present such information and materials (e.g., a detailed outline of completed Work) as may be pertinent, necessary, or requested by the City to determine the adequacy of the Work or the ARTIST's progress. E. 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 F. The Artist will participate in a collaborative design process with the landscape architects for the Downtown Auburn Park from July— September 2025. G. Once conceptual designs have been created, the artist must present these for consideration and feedback to the Selection Committee. H. Once a final design has been selected, it must be presented for one final round of input/feedback/changes to the Selection Committee, then the Auburn Arts Commission, then Auburn City Council. I. The Artist will seek out regular updates from the City on deadline relevant to the art project. J. The Artist shall coordinate the schedule for implementation and completion of studio fabrication with the Auburn Arts Commission and City Project Coordinator. K. The City shall have the right to review the Work at reasonable times during fabrication L. The City shall have the right to review, discuss and approve the exact location and placement of the artwork M. The Work shall be completed and installed at the site in compliance with City codes and with approved Work installation scheduled by the City. N. The City shall provide any needed wire, conduit and power to the selected site for lighting the Work. Exhibit A Agreement for Downtown Park Public Artwork Page 2 of 10 Docusign Envelope ID:A666FD8D-5554-4E74-90F7-B61FB95C317D 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 installation C. Artwork installation shall be completed by the Artist with City approval D. During installation, the City or general contractor 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 Iconic Public Art 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 installation. 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 Exhibit A Agreement for Downtown Park Public Artwork Page 3 of 10 Docusign Envelope ID:A666FD8D-5554-4E74-90F7-B61FB95C317D 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 to the City prior 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$97,500.00 (Ninety-seven thousand five hundred and no/100 U.S. Dollars) which shall constitute full compensation for all taxes, 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, with taxes to be included within that amount and to be paid by the Artist. 2.2 PAYMENT The first payment of 1/4 of$97,500 ($24,375)will be paid by the City to the Artist upon signing this Agreement. The second payment of 1/4 of$97,500 ($24,375)will be paid by the City to the Artist upon completion of and City approval of final design drawings. The third payment of 1/4 of$97,500 ($24,375) will be paid by the City to the Artist upon completion of and City approval of artwork fabrication. The final payment of the remaining 1/4 of$97,500 ($24,375) shall be made to Artist no later than ten(10) days after the City approval of successful delivery and installation as specified in this Agreement by Artist. Exhibit A Agreement for Downtown Park Public Artwork Page 4 of 10 Docusign Envelope ID:A666FD8D-5554-4E74-90F7-B61FB95C317D 2.3 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 understands that taxes are included in the agreed upon fee set forth in Article 2.1. 2.4 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 agreed upon by the Artist and City of Auburn staff. The approximate timeline for the project is outlined as follows: Contract due by July 25, 2025; collaborative design phase July-September, 2025; final engineered design drawings due by December 1, 2025; fabrication due by a date to be determined in 2026; installation of work at date to be determined by City and Artist no later than Spring 2027. 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 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 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 Exhibit A Agreement for Downtown Park Public Artwork Page 5 of 10 Docusign Envelope ID:A666FD8D-5554-4E74-90F7-B61FB95C317D 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 final 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 reproductions of the Work for non-commercial purposes, including but not limited to reproductions used in brochures, media publicity, educational or promotional materials for City programming or events, marketing, 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", "Artist". 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 Artist's control of the reproductions of the Work. ARTICLE 6. ARTIST'S RIGHTS 6.1 IDENTIFICATION The Artist and the City shall agree upon the plaque dimensions, best location, and method for placement of the plaque prior to its 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 Exhibit A Agreement for Downtown Park Public Artwork Page 6 of 10 Docusign Envelope ID:A666FD8D-5554-4E74-90F7-B61FB95C317D 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. 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 deaccession the artwork and, at the request of the Artist, remove any attribution to the Artist. The City reserves the right to deaccession artwork under the following conditions: A. The artwork site or landscape is structurally or otherwise altered and can no longer accommodate the Work. B. The artwork site 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 artwork site or landscape 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 RIGHTS TO RELOCATE THE WORK The City shall have the right, at its sole discretion, to move and relocate the work to a new location within the City at any time it deems relocation to be in the interest of the City, with the understanding that the Artist's Work has been designed for a specific site at Auburn's Downtown Park, the City shall offer to consult with the Artist regarding the suitability of alternate sites under consideration for relocation of the Artist's Work. In the event of any such relocation, the City shall be responsible for the costs involved therewith. 6.6 PERMANENT RECORD The City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 6.7 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 Exhibit A Agreement for Downtown Park Public Artwork Page 7 of 10 Docusign Envelope ID:A666FD8D-5554-4E74-90F7-B61FB95C317D 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 certified mail, return receipt requested, addressed to the respective parties as follows: Allison Hyde, John Fleming Art& City of Auburn Architecture ("Artist") Parks,Arts & Recreation 2832 NW 69th Street 910 Ninth Street SE Seattle,WA, 98117 Auburn,WA 98002 Telephone: 253-804-5043 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 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, 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 Exhibit A Agreement for Downtown Park Public Artwork Page 8 of 10 Docusign Envelope ID:A666FD8D-5554-4E74-90F7-B61FB95C317D 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. 10.5 SIGNATURE AUTHORITY This Agreement may be executed in counterparts, each of which shall be one and the same Agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed effective the day and year first set forth above. CITY OF AUBURN ,-DocuSigned by: FEC92ABD1 ZED1l71, Nancy Backus, Mayor Date: 7/31/2025 ATTEST: FDocuSigned by: .S1.4.4)A. dem42.14.11 Shawn Campbell, City Clerk Page 9 of 10 Docusign Envelope ID:A666FD8D-5554-4E74-90F7-B61FB95C317D APPROVED AS TO FORM: �Signed by: aSbin, M atun, ,VUD'1irIc-1r Jason Whalen, City Attorney ARTIST rSigned by: II••,,••K ibLin, nonnrrnnaoonn n❑ JOHN FLEMING Tax#: Page 10 of 10