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HomeMy WebLinkAbout02-17-2004 ITEM VIII-B-5CITY OFWX AGENDA BILL APPROVAL FORM 3E4 WASHINGTON Agenda Subject Public Artwork by Brandon Zebold Date: 2/10/2004 Department: Parks and Attachments: Resolution 3689 and I Budget Impact: Recreation An Agreement for Artwork Administrative Recommendation: City Council adopt Resolution 3689. Background Summary: Resolution 3689 authorizes the Mayor to sign an agreement with artist Brandon Zebold to design, execute, fabricate, and install artwork in the Lakeland Hills development at the junction of Lakeland Hills Way and Evergreen Way, on the southwest corner directly across from the Lakeland Hills Community Center. In conjunction with the mandate to incorporate public art into City construction projects, the artist was chosen through a competitive selection process in accordance with the Auburn Arts Commission and in partnership with the Lakeland Hills Homeowners Association, to create a free-standing Cor -ten steel sculpture. In consideration of a $30,000 fee, the artist will work with the Commission, Lakeland Hills Homeowners Association, and City Staff to complete this work. 0216-4 05.1.3 Reviewed by Council & Committees: Reviewed by Departments & Divisions: ❑ Arts Commission COUNCIL COMMITTEES: ❑ Building ❑ M&O ❑ Airport ❑ Finance ❑ Cemetery ❑ Mayor ❑ Hearing Examiner ❑ Municipal Serv. ❑ Finance ❑ Parks ❑ Human Services ® Planning & CD ❑ Fire ❑ Planning ❑ Park Board ❑Public Works ❑ Legal ❑ Police ❑ Planning Comm. ❑ Other ❑ Public Works ❑ Human Resources Action: Committee Approval: ❑Yes ❑No Council Approval: ❑Yes [-]NO Call for Public Hearing Referred to Until Tabled Until Councilmember: Singer Staff: Faber Meeting Date: February 17, 2004 Item Number: VIII.B.5 AUBURN* MORE THAN YOU IMAGINED RESOLUTION NO. 3689 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT WITH BRANDON ZEBOLD TO DESIGN, FABRICATE AND INSTALL ARTWORK FOR LAKELAND HILLS THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, IN A REGULAR MEETING DULY ASSEMBLED, HEREBY RESOLVES THAT: WHEREAS, the City desires to contract with artist Brandon Zebold to design, execute, fabricate and install artwork at Lakeland Hills ; and WHEREAS, the artist was selected by the City through a procedure approved by the Auburn Arts Commission to create an artwork to be located at Lakeland Hills at the junction of Lakeland Hills Way and Evergreen Way, on the southwest corner directly across from the Lakeland Hills Community Center; THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, IN A REGULAR MEETING DULY ASSEMBLED, HEREBY RESOLVE THAT: Section 1. The Mayor and City Clerk of the City of Auburn, Washington, are hereby authorized to execute an Agreement with Brandon Zebold to design, execute, fabricate, and install artwork for the Lakeland Hills A copy of the Agreement is attached hereto, designated as Exhibit "A", and incorporated by reference in this Resolution. --------------------------- Resolution No. 3689 February 4, 2004 Page 1 of 2 Section 2. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. This resolution shall be in full force and effect upon passage and signatures hereon. DATED AND SIGNED this day of February, 2004. CITY OF AUBURN PETER B. LEWIS MAYOR ATTEST: Danielle Daskam, City Clerk TO FORM: p(niel B. ity Attorney --------------------------- Resolution No. 3689 February 4, 2004 Page 2 of 2 AN AGREEMENT FOR ARTWORK This Agreement is made and entered into this day of 2004, by and between the City of Auburn, Washington, a municipal corporation of the State of Washington herein referred to. as "CITY" and Brandon Zebold, 115 — 26h Avenue, Seattle, Washington 98122 (Telephone: 206-860- 7945), herein referred to as ARTIST. WHEREAS, the CITY desires to contract with ARTIST to provide a. Cor -ten steel sculpture to be installed at Lakeland Hills, Auburn, Washington; and WHEREAS, the ARTIST was selected by the CITY through a procedure approved by the Auburn Arts Commission to design, execute, fabricate and install an artwork, herein referred to as the WORK and located at Lakeland Hills at the junction of Lakeland Hills Way and Evergreen Way, on the southwest corner directly across from the Lakeland Hills Community Center, herein referred to as the SITE; NOW THEREFORE THE CITY AND THE ARTIST INCONSIDERATION OF THE CONDITIONS AND COVENANTS HEREIN DO AGREE AS FOLLOWS: Article 1. SCOPE OF SERVICE 1.1 GENERAL The ARTIST shall be responsible for all services and furnish all supplies, material, and equipment as necessary for the design, execution, fabrication, transportation and installation of the WORK at the SITE. The WORK is described as follows: A free-standing Cor -ten steel sculpture consisting of a 3 -sided pyramidal base (72 -inches tall) and atop the base, a Cor -ten steel sphere (50 -inches diameter). The sphere will be flame cut in an integral pattern Resolution 3689 -Exhibit A February 4, 2004 Page 1 of 13 NAAgendalt/2004/Res3689A of landscape images as included in the ARTIST's original proposal on January 22, 2004. The proposed artwork will be required to pass review by a licensed structural engineer. The ARTIST shall pay for such engineering review. The ARTIST shall modify the design and/or construction of the artwork based on the engineering review, if necessary. 1.2 EXECUTION OF WORK The ARTIST shall approach the construction of the work in accordance with the proposed model and drawings, which were presented by the ARTIST to the Selection Committee and which was approved by the Auburn Arts Commission on February 9, 2004. 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 deadlines relevant to the art project: C. The ARTIST shall coordinate the schedule for implementation and completion of studio fabrication with the Auburn Arts Commission. D. The CITY shall have the right to review the WORK during fabrication. The CITY will set a schedule of visits with the ARTIST. E. The WORK shall be completed and installed no later than September 15, 2004. Resolution 3689 -Exhibit A February 4, 2004 Page 2 of 13 NAAgendalt/2004/Res3689A 1.3 DELIVERY AND INSTALLATION A. The ARTIST shall deliver and install the completed WORK at the site in compliance with the schedule set forth in section 1.2.A, B. The CITY shall approve installation plans presented by the artist prior to installation. 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. 1.4 POST -INSTALLATION A. The CITY will provide photo documentation of the WORK for CITY files. 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. 1.5 FINAL ACCEPTANCE A. The ARTIST shall advise the CITY in writing when all services required have been completed in substantial conformity to the stated Proposal. B. The CITY shall notify the ARTIST in writing of its final acceptance of the WORK. Resolution 3689 -Exhibit A February 4, 2004 Page 3 of 13 NAAgenda1t/2004/Res3689A 1.6 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. 1.7 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, his agents, representatives, and employees except where such claims arise solely from the negligent acts of the CITY, its agents, representatives, or employees. 1.8 TITLE Title to the WORK shall pass to the CITY upon final acceptance. 1.9 OWNERSHIP OF DOCUMENTS, MODELS Upon final acceptance, all studies, drawings, designs, and models prepared and submitted under this Agreement shall be returned to the ARTIST and shall belong to the ARTIST. 1.10 INSURANCE The ARTIST agrees to obtain, and maintain during the time period that the WORK is being installed on the CITY'S premises, comprehensive liability insurance in minimum amounts of not less than ONE MILLION AND NO/100s DOLLARS ($1,000,000) per occurrence to protect the CITY, its agents, officers, and employees Resolution 3689 -Exhibit A February 4, 2004 Page 4 of 13 N.\Agendalt/2004/Res3689A from any claims by any person for damage to persons or property arising out of or resulting from the performance of this Agreement during the time that the WORK is being installed on the CITY'S premises. 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. 1.11. 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 a fixed fee of Thirty Thousand and No/l 00s Dollars ($30,000), 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 procedures in the following installments: Resolution 3689 -Exhibit A February 4,2004. Page 5 of 13 N: Agendalt/2004/Res3689A A. Twelve Thousand and No/l00s Dollars ($12,000) upon final execution of this Agreement in recognition of services conducted by the ARTIST to execute this Agreement, and for purchase of materials. B. Three Thousand and No/100s Dollars ($3,000) upon initial fabrication and inspection by CITY of principal elements of the WORK. C. Seven Thousand Five Hundred and No/100s Dollars ($7,500) upon 50% of the fabrication and inspection by the CITY of the WORK. D. Seven Thousand Five Hundred and No/100s Dollars ($7,500) upon successful installation and acceptance of the WORK. E. Services for each phase of work must be invoiced by ARTIST and mailed to: City of Auburn Arts Commission, 910 Ninth Street Southeast, Auburn, Washington 98002 (Telephone: 253-804-5057). F. The ARTIST will submit the final invoice and other documents as are required by this contract/agreement within thirty (30) days of completion of the installation of WORK. Unless waived by the CITY in writing, failure by the artist to submit final invoice and required documents will relieve the CITY of any and all liability for payment to the ARTIST for the amount set forth in such invoice or in any subsequent invoice. At each fee/fabrication milestone outlined above, the ARTIST will submit a brief written report, which describes the progress to date. 2.2 TAXES The ARTIST is responsible for payment of all local, state, and federal taxes, which may be due from his work as a result of performance under this contract. Resolution 3689 -Exhibit A February 4, 2004 Page 6 of 13 N:\Agendalt/2004/Res3689A ARTIST understands that taxes are included in the agreed upon fee of Thirty Thousand and No/100s. Dollars (30,000). 2.3 ARTIST EXPENSES A. 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 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 as set forth in Article i shall be completed in accordance with the schedule for completion of the WORK as proposed by the ARTIST and approved by the CITY pursuant to Section 1.2.A provided that such time limits may be extended or otherwise modified by written agreement between the ARTIST and the CITY. 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. Resolution 3689 -Exhibit A February 4, 2004 Page 7 of 13 NAAgendalt/2004/Res3689A 4.1 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. 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 Resolution 3689 -Exhibit A February 4, 2004 Page 8 of 13 N:\Agendalt/2004/Res3689A 1 5.2 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. NOTICE All reproductions by the CITY shall contain a credit to the ARTIST in the following form: "(Title)" 2004 Brandon Zebold 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 CITY will provide a bronze plaque 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 shall be installed by the ARTIST simultaneously with the WORK. 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 Resolution 3689 -Exhibit A February 4; 2004 Page 9 of 13 NAAgendaIt/2004/Res3689A 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. 6.4 ALTERATION OF THE WORK OR OF THE SITE A. The CITY agrees that it will not intentionally damage, alter, modify, or change the WORK without the prior written approval of the ARTIST. The CITY will contact the ARTIST and advise him/her of such changes. B. Nothing in this section shall preclude any right of the CITY to remove the WORK from public display. 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 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. Resolution 3689 -Exhibit A February 4, 2004 Page 10 of 13 N: WgendaIt/2004/Res3689A 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: Susan Gochoel Cultural Programs Manager Auburn Arts Commission 910 Ninth Street SE Auburn, WA 98002 Brandon Zebold 115 26th AVE. Seattle, WA 98122 Either party may, by like notice at any time, designate a different address to which notices shall be set. Notice in accordance with these provisions shall be deemed received when mailed. ARTICLE 9 TERMINATION. If either party to this Agreement shall willfully or negligently fail to fulfill in a timely and proper manner or otherwise violate any form of the covenants, agreements, or stipulations material to this Agreement, the othe party shall thereupon have the right to terminate this Agreement by giving written notice to the defaulting party of its intent to terminate specifying the grounds for termination. In the event of default by the CITY, the CITY shall promptly compensate the ARTIST for all Resolution 3689-1;xhibit A February 4, 2004 Page 11 of 13 N:\Agendaltf2004/Res3689A 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 A. This Agreement may not be changed or modified nor any provision hereof waived except in writing agreed to by both parties. B. 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. C. The non -prevailing party agrees to pay all reasonable costs, attorney's fees and expenses that may be incurred by the substantially prevailing party in enforcing the provision of this Agreement. D. In the performance of the WORK, the ARTIST agrees to comply with all applicable state and local laws, rules, and regulations. Resolution 3689 -Exhibit A February 4, 2004 Page 12 of 13 NAAgendalV2004/Res3689A CITY OF AUBURN PETER B. LEWIS, MAYOR ARTIST BRANDON ZEBOLD Tax #: 533-58-6045 ATTEST: Danielle Daskam, City Clerk Resolution 3689 -Exhibit A February 4, 2004 Page 13 of 13 NAAgendalt/2004/Res3689A