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HomeMy WebLinkAbout2025, Artwork at Auburn Municipal Airport, Myron Curry, Inc.Agreement for Public Art – E hangar row mural – Auburn Municipal Airport Page 1 of 6 AGREEMENT FOR ARTWORK This Agreement is made and entered into this 5th day of October 2025 by and between the City of Auburn, Washington, a municipal corporation of the State of Washington (“City”) and Myron Curry, Inc., a Washington corporation, whose address is 9122 229th St E. Graham WA 98338, (the “Artist”). WHEREAS, the City desires to contract with Artist to design and paint a mural at the E hangar row at the Auburn Municipal Airport (“Work”); and WHEREAS, the City selected the Artist to perform this Work through its approved procedures, and the Artist is able to and desires to perform this Work through a contract with the City. IN CONSIDERATION OF THE CONDITIONS AND THE MUTUAL COVENANTS IN THIS AGREEMENT, THE PARTIES DO AGREE AS FOLLOWS: I. ARTICLE 1. SCOPE OF SERVICE 1.1 GENERAL The specific site location (“Site”) shall be the western wall on the E hangar row at the Auburn Municipal Airport. The Artist will develop painted artwork for the Site, prepare the site, then create and install (or supervise installation of) the artwork at the Site according to an agreed upon schedule. After installation the Artist shall apply a coating, selected in consultation with the City, that permanently prevents graffiti paint from bonding to the artwork surfaces. The Work shall substantially fill the square footage of the surface, as agreed upon between the Artist and the Airport in the Design Phase of the contract. The Artist will coordinate the design with the Auburn Airport Manager or designee. The Airport staff and the City of Auburn shall have final authority to approve the design for the Work and the Artist agrees to modify the design to reflect the feedback provided by the City. The Artist is responsible for all services and shall furnish all supplies, material, and equipment as necessary for the design, execution, fabrication, transportation, site preparation, painting, and installation of the Work at the Site, and shall complete the Work in a competent and professional manner. The Artist shall provide the Airport a sketch of the Work of the mural showing the exact paint colors used for each portion. 1.2 EXECUTION OF WORK The Artist will complete Work as described above in accordance with models and/or drawings that the Artist will provide to the City for advance review and approval by the Airport Manager. A. The Work is divided into three phases: 1. Phase I – Meet to discuss mural designs and to receive feedback from the City of Auburn staff. Participate in follow-up email discussions regarding the design and provide to the City depictions and detailed drawings to describe the size and character and how they would appear. Approval of the final design by the Airport Manager and City of Auburn would complete Phase I of the contract. 2. Phase II – Sign contract. 3. Phase III – After City approval of the design, produce and complete the finished Work of the mural, including application of an anti-graffiti coating, in accordance with the Agreement for Public Art – E hangar row mural – Auburn Municipal Airport Page 2 of 6 agreed upon schedule. Upon the City’s request, modify the final Work to be consistent with the approved design. . B. The Artist will complete the Work at the Site in compliance with City codes and with approved Work installation scheduled by the City. The Artist shall be responsible for obtaining any required permits necessary to complete the installation. The City shall provide the Artist’s assistance obtaining any appropriate permits. 1.3 POST-INSTALLATION A. The City will photograph the Work for its files and provide a copy of the photo to the Artist. B. The Artist will be available, at a time agreed between the City and the Artist, to participate in a presentation ceremony relating to the transfer of the Work to the City. The City will use its best efforts to arrange for publicity for the completed Work. C. Upon installation of the Work, the Artist will provide to the City written instructions for appropriate maintenance and preservation of the Work. 1.4 FINAL ACCEPTANCE A. The Artist will advise the City in writing when all services required have been completed. B. The City will notify the Artist in writing of its final acceptance of the Work. Prior to final acceptance, the City shall retain authority to mandate modifications to ensure consistency between the approved design and the final artwork. 1.5 RISK OF LOSS The risk of loss or damage to the Work will be borne exclusively by the Artist until final acceptance, and the Artist will 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. 1.6 INDEMNIFICATION/HOLD HARMLESS a. Except for injuries and damages caused by the sole negligence of the City, the Artist will defend, indemnify and hold the City and its officers, officials, employees, and volunteers harmless from any and all claims, injuries, damages, losses, or suits of every kind, including attorney fees and litigation expenses, arising out of or resulting from the acts, errors, or omissions of the Artist, its employees, agents, representatives, or subcontractors, including employees, agents, or representatives of its subcontractors, made in the performance of this Agreement, or arising out of worker’s compensation, unemployment compensation, or unemployment disability compensation claims. b. However, should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Artist and the City, its officers, officials, employees, and volunteers, the Provider's liability, including the duty and cost to defend, hereunder shall be only to the extent of the Artist’s negligence. c. If is further specifically and expressly understood that this indemnification constitutes the Artist’s waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section will survive the expiration or termination of this Agreement. d. The provisions of this section were separately and mutually negotiated by the parties. 1.7 TITLE Title to the Work shall pass to the City upon final acceptance. Agreement for Public Art – E hangar row mural – Auburn Municipal Airport Page 3 of 6 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 TWO MILLION DOLLARS ($2,000,000) 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. 1.9 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. ARTICLE 2. COMPENSATION AND PAYMENT SCHEDULE 2.1 FEE The City shall pay the Artist for satisfactory completion of the Work in the total amount of $5,000 (five thousand U.S. Dollars) + any applicable Washington State sales tax. This amount shall constitute full compensation for all services for the mural, engineering permits and materials, including anti-graffiti paint, to be performed and furnished by the Artist under this Agreement. The City shall pay this amount in accordance with its standard business practices. At each fee/fabrication Phase outlined in paragraph 1.2.A above, the Artist will submit a brief written report to the City describing the progress to date, and will invoice the City at that time. 2.2 PAYMENTS The City will pay the amount specified in paragraph 2.1 in 2 installments. The City will make its first payment (of $2,500 + applicable Washington State sales tax) to the Artist upon the Artist’s signing this Agreement and invoicing the City. The City will make its second payment (of $2,500 + applicable Washington State sales tax) to the Artist no later than thirty (30) days after its receipt of the Artist’s invoice for the completion of the mural, as specified in this Agreement, conditioned upon the City’s final and sole acceptance of the Work. The determination that events triggering a payment installment have occurred shall be at the discretion of the City. 2.3 PAYMENT OF OTHER TAXES Other than applicable Washington State sales tax specified in paragraphs 2.1 and 2.2, the Artist is responsible for paying all other local, state, and federal taxes which may be due as a result of the Artist’s performance under this Agreement. 2.4 ARTIST EXPENSES The Artist shall be responsible for paying all expenses related to performing the Work, including all shipping charges, 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 Artist must complete the services required in this Agreement on or before August 31, 2026. Agreement for Public Art – E hangar row mural – Auburn Municipal Airport Page 4 of 6 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 breach of any such warranty which is curable by the Artist and which cure is consistent with professional conservation standards. ARTICLE 5. ARTIST’S 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 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. The Artist agrees this license shall be royalty-free, non-exclusive, and permanent. The City is not responsible for any third-party infringement of the Artist’s copyright and are not responsible for protecting the intellectual property rights of the Artist. It is understood that the Work may be photographed by the public. 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. ALTERATION OF THE ARTWORK 6.1 REPAIRS AND RESTORATION The City shall have the right to determine when and if repairs and restorations to the Work will be made. In the event the City determines that repair or restoration should be undertaken, the City shall notify the Artist in writing of the nature of the work, the proposed means and methods for the work, and a deadline for the Artist to respond. The City and the Artist shall negotiate in good faith if the parties do not reach mutual agreement on the means and method for the work. The Artist Agreement for Public Art – E hangar row mural – Auburn Municipal Airport Page 5 of 6 shall not unreasonably withhold approval for any repair or restoration of the Work. If the Artist unreasonably fails to approve any repair or restoration, or fails to respond to the City’s notice by the stated deadline, the City shall have the right to make such repair or restoration. The failure of the Artist to respond in writing within by the deadline shall constitute the Artist’s waiver of all objections to the work. 6.2 VISUAL ARTISTS RIGHTS ACT WAIVER The Artist acknowledges that the Work is a work of visual art that is subject to the provisions of 17 U.S.C. §106A (the Visual Artists Rights Act of 1990). This act protects certain rights of creators of artwork, including distortion and modification. Artist further acknowledges that use of the Work as an outdoor mural integrated into the Site will subject it to weather and may by its nature necessitate the destruction, distortion, and modification of the Work in response to the State’s use, repair, and alteration of the Site. ARTIST WAIVES ALL RIGHTS CONFERRED BY THE VISUAL ARTISTS RIGHTS ACT WITH RESPECT TO USE OF THE WORK AS A PUBLIC MURAL and acknowledges that the City may remove or modify the Work when it determines, at its sole discretion, that doing so is in the best interest of the City. Modification of the Work that results from the passage of time or the inherent nature of the materials used, or the weather shall not constitute modification of the Work by the City. 6.3 PERMANENT RECORD The City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 6.4 ARTIST ADDRESS The Artist shall notify the City of changes in his 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 in employment with regard to age, sex, race, color, creed, national origin, physical or mental handicap or any other legally protected status or classification. 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 Municipal Airport 2143 E St NE Auburn, WA 98002 253-333-6821 Myron Curry, Inc. 9122 229th st E. Graham, WA 98338 Email: m.currydesigns@gmail.com Phone: 360-644-4792 Either party may at any time designate a different notice address in writing, which shall be deemed received when mailed. ARTICLE 9. TERMINATION Agreement for Public Art – E hangar row mural – Auburn Municipal Airport Page 6 of 6 Either party may terminate this Agreement upon 30 days 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 termination by the City, the City shall 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. Notwithstanding, the Artist shall remain liable to the City for damages caused by the Artist’s breach of this Agreement, and the City may reasonably withhold payments to the Artist until it precisely determines the amount of its damages due from the Artist. 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 party 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. CITY OF AUBURN Ingrid Gaub Public Works Director City of Auburn Approved as to Legal Form: ______________________________________ Jason M. Whalen, City Attorney ARTIST: M.Curry Designs LLC ______________________________________ By: _______________ Tax #:84-4170187