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HomeMy WebLinkAbout3059 ] RESOLUTION NO. 3 0 5 9 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, KING 3 COUNTY, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE Ai~ AGREEMENT FOR ARTWORK BETWEEN THE CITY AND KATE 4 KULZER AND KEVIN SPITZER TO PROVIDE A SCULPTURE FOR THE AUBURN SKATEPARK LOCATED IN BRANNAN PARK AT 26T~ AND M STREET 5 NORTHEAST, WITHIN THE CITY OF AUBURN. THE CITY COUNCIL OF THE CITY OF AUBURN, KING COUNTY, 7 WASHINGTON, IN A REGULAR MEETING DULY ASSEMBLED, HEREWITH 8 RESOLVES THAT: 9 SECTION 1. The Mayor and City Clerk of the City of 10 1] Auburn, Washington, are herewith authorized to execute an ]2 Agreement for Artwork with KATE KULZER and KEVIN SPITZER to 13 provide a sculpture for the Auburn Skatepark located in 14 Brannan Park at 26th and M Streets Northeast, within the City 15 of Auburn. A copy of said Agreement is attached hereto, 18 denominated as Exhibit "A" and made a part hereof as though 17 set forth in full herein. ]8 SECTION 2. The Mayor is hereby authorized to implement 19 such administrative procedures as may be necessary to carry 20 out the directives of this legislation. 2] 22 23 24 25 28 Resolution No. 3059 January 14, 1999 Page 1 1 DATED and SIGNED this 19th day of January, 1999. 2 3 CITY OF AUBURN 4 8 CHARLES A. BOOTH MAYOR 7 8 9 ATTEST: ]0 a~nle'lle E. Daskam, City Clerk 13 ]4 15 APPROVED AS TO FORM: ]7 ~~..'Re~yno ls 18 d , City Attorney 19 20 21 22 23 25 26 Resolution No. 3059 January 14, 1999 Page 2 ORIGINAL AN AGREEMENT FOR ARTWORK This Agreement is made and entered into this/~-'~ day of 1900 by and between the CITY OF AUBURN, WASHINGTON, a municipal corporation of the State of Washington herein referred to as CITY and Kate Kulzer and Kevin Spitzer, 2942 SW AVALON WAY, SEATTLE, WA 98126, (206) 935-1307, herein referred to as ARTIST. WHEREAS, the CITY desires to contract with ARTIST to provide a sculpture for the Auburn Skatepark located in Brannan Park at 26th and M Streets Northeast; 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 in a public space located at the Auburn Skatepark, in Auburn, herein referred to as the SITE; and WHEREAS, the ARTIST has agreed to perform the work in an artistic professional manner; WHEREAS, both parties wish to promote and maintain the integrity and clarity of the ARTISTS ideas and statements as represented by the WORK: NOW THEREFORE, THE CITY AND THE ARTIST IN CONSIDERATION OF THE CONDITIONS AND COVENANTS HEREIN DO AGREE AS FOLLOWS: ARTICLE I. SCOPE OF SERVICES. 1.1 GENERAL A. 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, except as noted in section 1.4. B. The WORK is to complement the established design of the Auburn Skatepark and shall be approved by the City of Auburn Arts Commission, Parks and Recreation Agreement-Kate Kulzer and Kevin Spitzer December 4, 1998 {c:/contract/artistJkulzer contract} Page 1 Department staff and the Auburn City Council. The ARTIST will be required to attend up to three (3) meetings during the approval process. C. The WORK may require a structural engineering stamp to be determined once design is agreed upon. This cost will be incurred by the ARTIST. 1.2 EXECUTION OF WORK A. The ARTIST and the CITY agree that the following schedule for completion and installation of the work shall be followed: , The installation of the work shall take place on a weekday. The ARTIST shall notify the CITY two (2) weeks prior to installation as to the date for installation. The ARTIST shall fabricate, transport, and install the work in accordance with this schedule. The WORK shall be completed and installed during the construction of the Skatepark, which is tentatively scheduled to begin in March, 1999; and completed within sixty days. B. The City shall have the right to review the WORK at reasonable times during fabrication. C. The ARTIST shall complete the fabrication and installation of the WORK in substantial conformity with the Proposal. D. The ARTIST shall present to the CITY in writing for further review and approval any significant changes in the scope, design, color, size, material, or texture of the WORK not permitted by or not in substantial conformity with the Proposal. A significant change is any change in the scope, design, color, size, material, texture, or location on the site of the WORK which affects installation, scheduling, site preparation or maintenance for the WORK or the concept of the WORK as represented in the Proposal. Agreement-Kate Kulzer and Keyin Spitzer December 4, 1998 {c:/contract/artist/lmlzer contract} c,~' Page 2 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. Should the work be completed prior to the schedule set forth in Section 1.2.A the ARTIST shall store the work at his/her own expense. A revised installation date shall be agreed upon by the CITY and the ARTIST. C. The CITY shall approve installation plans presented by the artist prior to installation. D.Site installation shall be prepared by the ARTIST with CITY approval. E. 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 of its final acceptance of the work. Agreement-Kate Kulzer and Kevin Spitzer December 4, 1998 {c:/contract/artist/kulzer contract} Page 3 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 retumed 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 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 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 additional insured. The policy shall require Agreement-Kate Kulzer and Kevin Spitzer December 4, 1998 {c:/contract/artist/kulzer contract} Page 4 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 $10,000.00 (ten thousand dollars and no cents) which shall constitute full compensation for all services, engineering permits and materials to be performed and furnished by the ARTIST under this Agreement. The fee shall be paid in accordance with standard City business procedures in the following installments: A. $2,000 upon final approval of the design of the WORK. B. $2,000 upon initial fabrication and inspection by CITY of principal elements of sculpture. C. $6,000 upon successful installation and acceptance of work. D. All payments will be made in accordance with typical City payment schedules. Agreement-Kate Kulzer and Kevin Spitzer December 4, 1998 {c:/contract/artist/kulzer contract} Page 5 2.2 TAXES The ARTIST is responsible for payment of all local, state, and federal taxes which may be due from his as a result of performance under this contract. ARTIST understands that taxes are included in the agreed upon fee of $10,000 (ten thousand dollars and no cents). 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 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. B. The ARTIST shall submit a budget for this project to the CITY upon acceptance of this contract. ARTICLE 3. TIME OF PERFORMANCE 3.1 DURATION The services to be required of the ARTIST as set forth in Article 1 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 Agreement-Kate Kulzer and Keyin Spitzer December 4, 1998 {c:/contractJartist/kulzer contract} Page 6 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. REPRODUCTION RIGHTS. 5.1 GENERAL The ARTIST retains all fights 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 Agreement-Kate Kulzer and Kevin Spitzer December 4, 1998 {c:/contract/artistJkulzer contract} Page 7 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, 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: "(Name)" 1999 Kate Kulzer and Kevin Spitzer. 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 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 reasonable efforts to protect and maintain the work against the ravages of time, vandalism, and the elements. Agreement-Kate Kulzer and Kevin Spitzer December 4, 1998 {c:/conlractJartist/kulzer contract} Page 8 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 t~ approve any repair or restoration, the CITY shall have the fight 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, 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 provision of this Article 6 that require the express approval of the ARTIST. Agreement-Kate Kulzer and Kevin Spitzer December 4, 1998 {c:/contract/artist/kulzer contract} Page 9 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: Cultural Programs Manager CITY OF AUBURN 25 West Main Street Auburn, WA 98001 Kate Kulzer and Kevin Spitzer 2942 Southwest Avalon Way Seattle, WA 98126 Either party may by like notice at any time designate a different address to which notices shall be sent. Notice given 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 other party shall thereupon have the fight 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 Agreement-Kate Kulzer and Kevin Spit. zer December 4, 1998 {c:/contract/artist/kulzer contract} Page 10 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 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 provisions 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. Agreement-Kate Kulzer and Kevin Spitzer December 4, 1998 {c:/contract/artist/kulzer contract} Page 11 CITY OF AUBURN CHARLES A. BOOTH MAYOR ATTEST: /~an~elle Daskam City Clerk APPROVED AS TO FORM: ~Reynold~~s City Attorney ARTIST Kate Ku zer -7~..t'.t.a~. 2,~5.'~~ TKaexv~ Spit~~ _~~ ~ Agreement-Kate Kulzer and Kevin Spitzer December 4, 1998 {c:/contract/artist/kulzer contract} Page 12 STATE OF WASHINGTON ) COUNTY OF~//t,/F]~ )ss On this ~/~ day o ~ht.t,t~7 , __ f. 199~, before me, the undersigned, a Notary , to me known to be the individualSwho executed the within and foregoing instrument, and acknowledged said instrument to b ~ free and voluntary act and deed, for the uses and purposes therein mentioned. e IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the date , hereinabove set forth. Agreement-Kate Kulzer and Kevin Spitzer December 4, 1998 {c:/contract/artisl/kulzer contract} Page 13