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HomeMy WebLinkAboutDiane Aurigemma/Volare BannersAN AGREEMENT FOR ARTWORK This Agreement is made and entered into this 8th day of September, 2003 by and between the CITY OF AUBURN, WASHINGTON, a municipal corporation of the State of Washington herein referred to as CITY and Diana Aurigemma, dba Volare Banners and Design, 4331 Burke Avenue North, Seattle, Washington 98103 (Telephone: 206-663-4671), herein referred to as ARTIST. The fabricated banners will herein be referred to as the WORK. WHEREAS, the CITY desires to contract with ARTIST to run two workshops to instruct children in the design development of street banners; and WHEREAS, the CITY desires to contract with ARTIST to fabricate and to provide the hardware for installations of said banners; and WHEREAS, the ARTIST was selected by the CITY through a procedure approved by the Auburn Arts Commission: 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 Design Development The ARTIST shall be responsible for conducting one (1) workshop with local children to design a series of seasonal winter banners for the downtown area of Auburn. The designs shall be developed in conjunction with the Auburn Arts Commission and presented for review by the CITY and the Auburn Arts Commission. The ARTIST will complete any independent research and any interviews necessary to develop the artwork proposed for the downtown area. It is Agreement--Volare Banners & Design September 8, 2003 Page I of 13 anticipated that the ARTIST will be required to attend a maximtrrn of three (3) meetings to review the proposal. The artwork proposal must include the following: A. A rendering or drawing of the artwork, which includes an indication of all materials to be used. B. Samples of the materials to be used in the fabrication of the banners. C. Any required technical specifications, or information, necessary for the fabrication and/or installation of the artwork, D.A budget of final costs of the project. The proposed artwork may also 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. The artwork proposal and required materials list must be completed and submitted to the City of Auburn Arts Commission within sixty (60) days of contract signing by the CITY. 1.2 Phase 2 Execution of the Arts Proiect A. The ARTIST shall provide all labor and materials necessa~3~ to fabricate the finished artwork designs into street banners. B. The ARTIST will seek out regular updates from the Auburn Arts Commission regarding scheduling information and deadlines relevant the arts project. C. The ARTIST shall coordinate the schedule for implementation and completion of studio fabrication with the Auburn Arts Commission. and deliver the WORK by the agreed upon scheduled date. Agreement--Volare Banners & Design September 8, 2003 Page 2 of 13 1.3 1.4 1.5 1.6 DELIVERY AND INSTALLATION A. The ARTIST shall deliver the completed WORK at the site in compliance with the agreed upon schedule. B. Should the work be completed prior to the agreed upon schedule, 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. 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. 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. INDEMNIFICATION The ARTIST agrees to indemnify, defend, and hold the CITY, its agents, representatives, and employees harmless from and against any mid 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. Agreement---Volare Banners & Design September 8, 2003 Page 3 of 13 1.7 TITLE Title to the WORK shall pass to the CITY upon final acceptance. 1.8 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. 1.9 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. 1.10 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. Agreement-~Volare Banners & Design September 8, 2003 Page 4 of 13 ARTICLE 2. COMPENSATION AND PAYMENT SCHEDULE 2.1 FEE The CITY shall pay the ARTIST a fixed fee of $12,000.00 (Twelve Thousand and no/100s Dollars), 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: 2.2 A. $2,300 upon completion of the workshop held by the ARTIST. B. $9,700 upon successful fabrication, installation and acceptance of the WORK. C. Services for each phase of work must be invoiced by ARTIST and mailed to: City of Auburn Arts Commission, 910 Ninth Street SE, Auburn, Washington 98002 (Telephone: 253-804-5057; fax is 253-931-4005). D. The ARTIST will submit the final invoice and other documents as are required by this contract/agreement within thirt3~ (30) days of completion of the Scope 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. 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 $12,000 (twelve thousand dollars and no cents). Agreement~--Volare Banners & Design September 8, 2003 Page 5 of 13 2.3 ARTICLE 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. 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. 4.1 WARRANTIES 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. Agreement~Volare Banners & Design September 8, 2003 Page 6 of 13 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 l:he 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, two-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 irrevoczLble license to make representative photographic reproductions of the work for non-commercial Agreement--Volare Banners & Design September 8, 2003 Page 7 of 13 5.2 5.3 ARTICLE 6. 6.1 6.2 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. NOTICE All reproductions by the CITY shall contain a credit to the ARTIST in the following form: "(Name)" 2003 Diana Aurigemma 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. ARTIST'S RIGHTS. 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. MAINTENANCE The CITY recognizes that maintenance of the work on a regular ba~,;is 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 Agreement~Volare Banners & Design September 8, 2003 Page 8 of 13 6.4 6.5 6.6 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. 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. PER31ANENT RECORD The CITY shall maintain on permanent file a record o£ this Agreement and of the location and disposition of the work. 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 deemect 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. Agreemen*,--Volare Banners & Design September 8, 2003 Page 9 of 13 ARTICLE 7. NON-DISCRIMINATION The ARTIST shall comply with all federal, state, and local laws amd 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 Parks and Recreation Administration 910 Ninth Street SE Auburn, WA 98002 Diana Aurigemma Volare Banners & Design 4331 Burke Avenue North Seattle, WA 98103 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 Agreement~Volare Banners & Design September 8, 2003 Page 10 of 13 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 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~Volare Banners & Design September 8, 2003 Page 11 of 13 CITY OF AUBURN PETER B.~LEWIS MAYOR ATTEST: tDanielle Daskam City Clerk City Attorney ARTIST DIANA AURIGEMMA Tax ID # Agreement~Volare Banners & Design September 8, 2003 Page 12 of 13