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HomeMy WebLinkAbout2880 1 RESOLUTION NO. 2 8 8 0 2 3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK OF THE CITY 4 OF AUBURN, TO EXECUTE AN AGREEMENT FOR ARTWORK BETWEEN THE CITY AND DEBORAH MERSKY, TO PROVIDE A DECORATIVE FENCING AND 5 ENTRY PORT TO PIONEER CEMETERY 6 7 WHEREAS, an artist is selected through a procedure 8 approved by the Auburn Arts Commission to design, execute, 9 fabricate and install an artwork in a public space located at 10 the southeast intersection of Auburn Way North and 8th Street 11 12 NE, within the City of Auburn 13 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, 14 WASHINGTON, IN A REGULAR MEETING DULY ASSEMBLED, HEREWITH 15 RESOLVES AS FOLLOWS 16 -rtion 1 . The Mayor and City Clerk of the City of 17 18 Auburn, Washington, are hereby authorized to execute an 19 Agreement for Artwork between the City and DEBORAH MERSKY, to 20 provide a decorative fencing and entry port to Pioneer 21 Cemetery, located at the southeast intersection of Auburn Way 22 23 North and 8th Street NE, within the City of Auburn A copy of 24 25 26 Resolution No 2880 October 7, 1997 Page 1 1 the Agreement is attached hereto, designated as Exhibit "A" 2 and incorporated by reference in this Resolution 3 4 Section 2 . The Mayor is hereby authorized to implement 5 such administrative procedures as may be necessary to carry 6 out the directives of this legislation 7 8 DATED and SIGNED this 20th day of October, 1997 9 10 CITY OF AUBURN 11 i In 12 V1c�11� n �4 CHARLES A BOOTH 13 MAYOR 14 15 ATTEST 16 17 4j4/46."066v1/4._y 18 Danielle Dasl(am, 19 Deputy City Clerk 20 21 APPROVED AS TO FORM 22 23 24 l� Michael Reyri lds, 25 City Attorney 26 Resolution No 2880 October 7, 1997 Page 2 ORIGINAL AN AGREEMENT FOR ARTWORK This Agreement is made and entered into this -?Q day of del,67u2./3 , 1977 by and between the CITY OF AUBURN, WASHINGTON, a municipal corporation of the State of Washington herein referred to as CITY and DEBORAH MERSKY, 1803 25TH AVENUE S., SEATTLE, WA 98144, (206) 726-9424, herein referred to as ARTIST WHEREAS, the CITY desires to contract with ARTIST to provide a decorative fencing and entry port to Pioneer Cemetery 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 southeast intersection of AUBURN WAY N and 8TH STREET N.E., 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 ARTIST'S 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 1. SCOPE OF SERVICES. 1.1 GENERAL A. The ARTIST shall perform 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 described as follows: Ex_14f A ` Agreement-Deborah Mersky Resolution No.2880 October 7 1997 Page 1 A decorative fencing and entry port to Pioneer Cemetery, made of fabricated steel with hop vine imagery in the fence panels (four panels); and an archway made of fabricated steel, leading into the cemetery, containing Japanese symbolic images. 1.2 PROPOSAL A. The ARTIST shall approach the construction of the work in accordance with the proposed model which was presented by the ARTIST to the Selection Committee and which was approved by the Auburn Arts Commission on 14 July, 1997 1.3 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 city shall notify METRO of installation date. The ARTIST shall fabricate, transport, and install the work in accordance with this schedule. The work shall be completed and installed by 6 March, 1998. 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-Deborah Mersky Resolution No.2880 October 7,1997 Page 2 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 in section 1.3 B Should the work be completed prior to the schedule set forth in Section 1.3 the ARTIST shall store the work at his own expense. A revised installation date shall be agreed upon by the CITY and the ARTIST 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. 1.5 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. 1.6 FINAL ACCEPTANCE A. The ARTIST shall advise the CITY in writing when all services required prior to those described in Section 1.5 have been completed in substantial conformity to the stated Proposal. B The CITY shall notify the ARTIST 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. Agreement-Deborah Mersky Resolution No 2880 October 7 1997 Page 3 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, his 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. The WORK shall be called "Pioneer Cemetery Entryway" 1.10 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 1.11 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 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. Agreement-Deborah Mersky Resolution No.2880 October 7 1997 Page 4 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 a fixed fee of $19,700 (nineteen thousand and seven hundred dollars and no cents), plus tax at 8 6% of$1,694 20 (one thousand six hundred ninety four dollars and twenty cents) totaling $21,394.20 (twenty-one thousand three hundred ninety four dollars and twenty cents) which shall constitute full compensation for all services and materials to be performed and furnished by the ARTIST under this Agreement. The fee shall be paid in the following installments: A. $3,000 upon final execution of this Agreement for work completed to date by the ARTIST, and initial digitizing of the laser cut steel panels. B $6,300 upon receipt of photographs to CITY documenting the complete designs of the laser cut panels. C $6,300 upon receipt of photographs to CITY documenting the finished laser cut panels D $5,794.20 upon successful installation and acceptance of work. 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. 2.3 ARTIST EXPENSES Agreement-Deborah blersky Resolution No.2880 October 7 1997 Page 5 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 1.3 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 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 Agreement-Deborah Mersky Resolution No.2880 October 7,1997 Page 6 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 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. "Pioneer Cemetery Entyway" 1997 Deborah Mersky. Agreement-Deborah Merskv Resolution No 2880 October 7 1997 Page 7 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 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. 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. During the ARTIST'S lifetime, the ARTIST shall have the right to approve all repairs and restorations, PROVIDED, HOWEVER, that 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 Agreement-Deborah Mersky Resolution No.2880 October 7, 1997 Page 8 B The CITY shall notify the ARTIST of any proposed alteration of the site that would affect the intended character and appearance of the work and shall consult with the ARTIST in the planning and execution of any such alteration and shall make a reasonable effort to maintain the integrity of the work C Nothing in this Section shall preclude any right of the CITY to remove the work from public display If the CITY shall at any time decide to destroy the work, it shall by notice to the ARTIST offer the ARTIST a reasonable opportunity to recover the work. 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 her 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 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 Agreement-Deborah Mersky Resolution No.2880 October 7,1997 Page 9 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: Josephine Emmons CITY OF AUBURN 25 West Main Street Auburn, WA 98001 Deborah Mersky 1803 25th Avenue S Seattle, WA 98144 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 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 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 Agreement-Deborah Mersky ------- Resolution No.2880 October 7 1997 Page 10 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-Deborah Mersky --Resolution No.No.2880 October 7, 1997 Page 11 CITY OF AUBURN bt§-II S Vf 12c CHARLES A. BOOTH MAYOR ATTEST / Da ielle Daskam ' rr 7q City Clerk • 'PROVED AS TO FORM Michael J Reynolds City Attorney ARTIST r n ' "§"' —0.10n V1V Deborah Mersky * Pl1BlJ fl3 - 6 //,- ?z33 t,., op 24 Tax ID # ;D.A., Agreement-Deborah Mersky Resolution No.2880 October 7,1997 Page 12 STATE OF WASHINGTON ) COUNTY OF ) )ss On this L day of , 199 7 before me, the undersigned, a Notary 'yy Public in and for the State of Washington, personally appeared , to me known to be the individual who executed the within and foregoing instrument, and acknowledged said instrument to be hi S free and voluntary act and deed, for the uses and purposes therein mentioned. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the date hereinabove set forth. NOTAR ' i :LIC in and for the State of Washington, residing in NO!Jyly" * ; /MAC, MY COMMISSION expires: //- ) 9' - ?ft t' 24 9- FCPWAS L .s\ 1 j \ • ,1 4fin , y" * S r>. J Agreement-Deborah Mersky Resolution Nu 2880 October 7,1997 Page 13 Atom. CERTIFICATE OF INSURANCE ISSUE DATE(MM/DONY) 06/02/98 PRODUCER CIC6099 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE ROBERT A SCHEUFFELE AGENCY INC POLICIES BELOW. 9750 3RD AVE NE STE#105A COMPANIES AFFORDING COVERAGE SEATTLE, WA 98115-2022 COMPANY A 206-522-2290 LANDM Ab AN NSURAN C• COMPANY B 19118 INSURED LETTER ]� J�J7 DEBORAH MERSKY / n rift COMPANY //� I ,S `S VLF f[� Len V 1803 25TH AVE COMPANY L L yl V / LETTER D l'�iC+/1 f SEATTLE, WA 981 \ 1998 //;' LETTER E COVERAGES THIS IS TO CERTIFY THAT THE POLICIES OF IN3 E L TED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMEN OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS CO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LTR DATE(MM/DD/YY) DATE(MM/DD/YY) LIMITS GENERAL LIABILITY GENERAL AGGREGATE 5 1, 000, 000 A x( COMMERCIAL GENERAL LIABILITY CLP2201744 05/29/98 05/29/99 PRODUCTS-COMP/OP AGG. 5 EXCLUDED CLAIMS MADEI XIACCUR' PERSONAL 3 ADV INJURY 3 1, 000, 000 OWNER'S 8 CONTRACTOR'S PROT EACH OCCURRENCE $ 1, 000, 000 FIRE DAMAGE Any one lire) 3 EH, 000 MED EXPENSE(Any one person) 5 2, 000 AUTOMOBILE LIABILITY COMBINED SINGLE ANY AUTO LIMIT ALL OWNED AUTOS BODILY INJURY SCHEDULED AUTOS (Fcr pe0-0 HIRED AUTOS BODILY INJURY 5 NON OWNED AUTOS (Per accident) GARAGE LIABILITY PROPERTY DAMAGE $ EXCESS LIABILITY EACH OCCURRENCE 3 UMBRELLA FORM AGGREGATE 5 OTHER THAN UMBRELLA FORM ,d.,`^ WORKER'S COMPENSATION STATUTORY LIMITS Y `b b AND EACH ACCIDENT $ EMPLOYERS'LIABILITY DISEASE—POLICY LIMIT $ — DISEASE—EACH EMPLOYEE 3 OTHER DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS CERTIFICATE HOT/DER IS NAMEQQ ADDITIONAL INSURED AS RESPECT TO INSUREDS OPERATIONS CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE CITY CLERK EXPIRATION DATE THEREOF THE ISSUING COMPANY WILL EN EAVOR TO CITY OF AUBURN MAIL 10 DAYS WRITTEN NOTICE TO THE CERT ICATE HO DER N MED TO THE 25 W MAIN ST LEFT BUT FAILURE TO MAIL SUCH NOTICE S ALL IMPOS NO 0 LI ATION OR AUBURN, WA 98002 LIABILITY OF ANY KIND UPON T 'a. -•••//ANY II S?AGENTS O' P NTATIVES AUTHORIZED REPRESENTATIVE G •3 Lag,1 , 7 ,0 ACORD 26-S(7/90) CACORD COOOO%%%RPORATION 1990 CITY OF AUBURN INTEROFFICE MEMORANDUM TO Josie Emmons, Cultural Programs Manager FROM: Dani Daskam, City Clerk SUBJECT Resolution No. 2880 Agreement for Artwork with Deborah Mersky DATE. October 27, 1997 The Auburn City Council adopted Resolution No 2880 on October 20, 1997 authorizing an Agreement for Artwork between the City and Deborah Mersky to provide a decorative fencing and entry port to Pioneer Cemetery Attached is a copy of Resolution No 2880 together with the original Agreement. The Agreement now requires the notarized signature of Ms. Mersky Please obtain the signature of Ms. Mersky, and return the original agreement to me for filing with Resolution No. 2880. Also, please note that according to Article 1 11 of the Agreement, Ms. Mersky is to provide proof of insurance for coverage during installation of the artwork. Thank you for your assistance. /dd Attachments File 05.1.3, 05 1.2 f\clerk\cont\RES2880 CHARLES A BOOTH,MAYOR f(• ` AUBURN CITY CLERK Danielle Daskam,City Clerk 1 25 West Main, Auburn,WA 98001 Cathy Richardson,Deputy City Clerk Auburn City Clerk:(253)931-3039 Tamie Bothell, Records/License Clerk _ff� Business Registration:(253)931-3903017- 007 Fax:(253)288-3132 iing, STATE OF WASHINGTON) ) ss. COUNTY OF KING ) I, Danielle Daskam, the duly appointed, qualified City Clerk of the City of Auburn, a Municipal Corporation and Code City, situate in the County of King, State of Washington, do hereby certify that the foregoing is a full, true and correct copy of Resolution No. 2880 of the resolutions of the City of Auburn, entitled "RESOLUTION NO.2880 " I certify that said Resolution No 2880 was duly passed by the Council and approved by the Mayor of the said City of Auburn on the 20th day of October, -1997 - Witness my hand and the seal of the City of Auburn this 20th day of August, 1998. Danielle Daskam, City Clerk City of Auburn