HomeMy WebLinkAboutEXECUTED ESP_Beautification_Through_Art_PSA_7.12.23DocuSign Envelope ID: 7FAB F2FA-7C66-4708-B872-E06B41A81C2A
CITY OF AUBURN
AGREEMENT FOR ARTISTIC SERVICES
Beautification Through Art — Kiss & Ride Parcel 7815700172 .
THIS AGREEMENT made and entered into on this 17th day of 3u1y , 2023
(the Effective Date), by and between the CITY OF AUBURN (City), a municipal corporation of
the State of Washington, and ART BY CODY ESP (Artist), whose address is 9405 28th St Ct E,
Edgewood, WA 98371 (UBI # 604 676 438).
I. RECITALS
1. The City owns real property identified by King County parcel number 7815700172,
commonly known as the "Kiss & Ride" parking lot (the "Site"). The City 's Real Estate Division
manages the Site and desires to increase its safety and beauty of by installing original artwork
at the Site that is commissioned from local artists;
2. The Artist has designed and produced artwork similar to that sought by the City for
the Site ;
3. After a Site meeting between City representatives and the Artist, as well as a review
of the Artist's other artwork, the City has determined that the Artist possesses the necessary
skills and vision to complete the artwork desired at a fair and reasonable price.
II. AGREEMENT FOR SERVICES
Accordingly, and in consideration of the conditions and the mutual promises and
covenants contained in this Agreement, the parties agree as follows:
Scope of Services
The Artist agrees to perform the tasks described on Exhibit "A" (Work). The Artist will be
responsible to provide work products and services of a quality and professional standard
acceptable to the City, consistent with the professional skill and care ordinarily provided by
professional artists in the same or similar circumstances. The Artists Work shall
substantially cover the total surface area of all surfaces for which the Artist's Work is to be
placed upon. After installation, as part of Artist's Work the Artist shall apply a coating to the
exterior of the trash enclosure being painted that prevents graffiti paint from bonding to its
surface.
Unless otherwise explicitly excluded, the Artist is responsible for all services related to
completing the Work, including furnishing of all supplies, material, and equipment as
necessary for the design, execution, fabrication, transportation, site preparation, painting,
and installation of the Work at the Site.
Art by Cody Esp — Esp Beautification through Art PIN 7815700172
7117/23
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The Artist will, promptly and without additional compensation, correct or revise any
negligent errors, omissions or other deficiencies in its plans, or the installation of its Work
whether during or after the Term of this Agreement. Any approval by the City of Artist's
Work will not in any way relieve the Artist of responsibility for the accuracy and adequacy
of its Work.
2. Additional Services
If additional services with respect to related work are required beyond those specified in
the Scope of Work, and not included in the compensation listed in this Agreement, the
parties will amend this Agreement prior to the Artist performing the additional services.
The amendment will set for the nature, scope, and payment terms of the additional
services. However, if the time period for the completion of such services makes execution
of an amendment impractical prior to the commencement of the Artist's performance, the
Artist agrees that it will perform such additional services on the written request of an
authorized representative of the City pending execution of an Amendment subject to the
terms and conditions of this Agreement except where the authorization provides to the
contrary.
3. Final Acceptance & Risk of Loss
The Artist will advise the City in writing once all Work has been completed. The City will
notify the Artist in writing of its final acceptance of the Work. Prior to final acceptance, the
City shall retain the right and authority to mandate modifications to insure consistency
between the approved design and final work.
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.
4. Compensation
As compensation for the Artist's performance of the services provided for in this
Agreement, the City will pay the Artist the fees and costs specified in Exhibit "A". These
payments will be full compensation for the satisfactory completion, as determined by the
City, for the work performed or services rendered and for all labor, materials, supplies,
equipment, overhead, profit, and incidentals necessary to complete the work.
Upon execution of this Agreement, the Artist will submit to the City an invoice for fifty
(50%) percent of the total contract amount, which the City shall pay to the Artist in the
City's next regularly scheduled billing/claim cycle. The invoice shall include the total
amount of the contract, the amount being billed, and the remaining balance available
against the contract, subject to any conditions or provisions in this Agreement or
Amendment. The Contract reference (Art by Cody — Beautification through Art PIN
7815700172) must appear on all invoices submitted. Copies of original supporting
documents will be supplied to the City upon request.
The not -to -exceed amount for this agreement is TEN THOUSAND DOLLARS AND 00/100
($10,000). The Artist will not undertake any work or otherwise financially obligate the City
in excess of this amount without prior written authorization.
Art by Cody Esp — Esp Beautification through Art PIN 7815700172
7/17/23
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5. Time for Performance, Term, and Termination of Agreement
The term of this Agreement will commence on the Effective Date. The Artist will perform
the services in accordance with the direction and scheduling provided on Exhibit "A",
unless otherwise agreed to in writing by the parties. All work performed under this
Agreement will be completed by September 30, 2023.
Termination for Cause. Either party may terminate this Agreement upon 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. The notice will
identify the reason(s) for termination and specify the effective date of termination. In the
event of a default by Artist, City may suspend all payments otherwise due to Artist and the
City will have no further obligations to Artist.
Termination for Convenience. The City may terminate this Agreement upon not less
than seven (7) days written notice, which shall contain the effective date of termination, to
the Artist. If this Agreement is terminated through no fault of the Artist, the Artist will be
compensated for services performed prior to termination as determined by the percentage
of Work completed at the effective date of termination. This payment shall fully satisfy and
discharge the City of all obligations and liabilities owed the Artist, who shall not be liable
for any anticipated profits or other consequential damages resulting from the termination.
Upon receipt of a termination notice, the Artist will promptly discontinue all services
affected and deliver to the City all finished and unfinished drawings, sketches,
photographs, models, and other work products under this Agreement shall become the
City's property. All work products due to be turned over to the City shall become the
property of the City.
All rights and remedies provided in this Section are not exclusive of any other rights or
remedies that may be available to the City, whether provided by Law, equity, in any other
agreement between the parties or otherwise.
6. Artist's Work, Ownership and Use
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.
All documents, reports, memoranda, diagrams, sketches, plans, pieces, surveys, design
calculations, working drawings and any other materials created or otherwise prepared by
the Artist as part of his performance of this Agreement (the "Work Products") are
considered "Works Made for Hire" under 17 U.S.C. §201(b), becoming owned by and the
property of the City, may be used by the City for any purpose beneficial to the City, and
are subject to the Public Records Act, 42.56 RCW. The Artist acknowledges that the
Agreement, and Work Products provided in connection with this Agreement, become a
public record and may be subject to inspection and copying, unless the information is
declared by law to be confidential or is otherwise exempted from public records disclosure
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requirements. The Artist agrees to give it:
locating, and copying any records in the
determined by the City in its sole discretion,
the City.
fullest assistance to the City in identifying,
Artist's possession that are responsive, as
to a Public Records Act request received by
7. Records Inspection and Audit
All compensation payments will be subject to the adjustments for any amounts found upon
audit or otherwise to have been improperly invoiced, and all records and books of
accounts pertaining to any work performed under this Agreement will be subject to
inspection and audit by the City for a period of up to three (3) years from the final payment
for work performed under this Agreement. If any litigation, claim, dispute, or audit is
initiated before the expiration of the three (3) year period, all records and books of account
pertaining to any work performed under this Agreement will be retained until all litigation,
claims, disputes, or audit are finally resolved.
8. Continuation of Performance
If any dispute or conflict arises between the parties while this Agreement is in effect, the
Artist agrees that, notwithstanding such dispute or conflict, the Artist will continue to make
a good faith effort to cooperate and continue to work toward successful completion of the
Work and other contractual responsibilities.
9. Independent Contractor
The Artist will perform the services as an independent contractor and will not be deemed,
by virtue of this Agreement and performance of its provisions, to have entered into any
partnership, joint venture, employment or other relationship with the City. Nothing in this
Agreement creates any contractual relationship between the Artist's employee, agent, or
subcontractor and the City.
10. Administration of Agreement
This Agreement will be administered by Cody Esp, on behalf of the Artist, and by the City
Attorney, or designee, on behalf of the City. Any written notices required by the terms of
this Agreement will be served on or mailed to the following addresses:
Josh Arndt Cody Esp
City of Auburn Art by Cody Esp
25 West Main St 940528 th St Ct E
Auburn WA 98001-4998 Edgewood, WA 98371
Phone: 253.931.4011 Phone: 619.372.0433
Email: Jarndt@auburnwa.gov Email: Codycesp@gmail.com
11. Notices
All notices or communications permitted or required to be given under this Agreement will
be in writing and will be deemed to have been duly given if delivered in person or sent by
electronic (email) or regular mail, postage prepaid, [by certified mail, return receipt
requested,] and addressed, if to a party of this Agreement, to the address for the party set
forth above. Delivery by email where no delivery failure notification has been received will
be deemed to have been one (1) business day after the email was sent. If addressed to a
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non-party, the notice will be sent, in the foregoing manner, to the address designated by a
party to this Agreement.
Either party may change its address by giving notice in writing to the other party.
12. Insurance
Prior to commencing any Work, the Artist shall obtain, provide proof of, and maintain
during the term of this agreement commercial general 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 (including auto) 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.
13. Indemnification/Hold Harmless
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
negligent 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.
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 Public Entity, its officers, officials, employees, and volunteers, the Artist's
liability, including the duty and cost to defend, hereunder shall be only to the extent of the
Artist's negligence.
It 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.
The provisions of this section were separately and mutually negotiated by the parties.
14. Assignment
Neither party to this Agreement will assign any right or obligation hereunder in whole or in
part, without the prior written consent of the other party. No assignment or transfer of any
interest under this Agreement will release the assignor from any liability or obligation under
this Agreement, or to cause any such liability or obligation to be reduced to a secondary
liability or obligation.
15. Nondiscrimination
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The Artist may not discriminate regarding any services or activities to which this
Agreement may apply directly or through contractual, hiring, or other arrangements on the
grounds of race, color, creed, religion, national origin, sex, age, or where there is the
presence of any sensory, mental or physical handicap.
16. Amendment, Modification and Waiver
No amendment, modification, or waiver of any condition, provision, or term of this
Agreement will be valid or of any effect unless made in writing, signed by the party or
parties to be bound, or the party's or parties' duly authorized representative(s) and
specifying with particularity the nature and extent of such amendment, modification, or
waiver. Any waiver, approval or acceptance, or payment by any party will not affect or
impair that party's rights arising from any default by the other party.
17. Parties in Interest
This Agreement is binding upon, and the benefits and obligations hereto will inure to and
bind, the parties and their respective successors and assigns, although this section will not
be deemed to permit any transfer or assignment otherwise prohibited by this Agreement.
This Agreement is for the exclusive benefit of the parties and it does not create a
contractual relationship with or exist for the benefit of any third party, including contractors,
sub -contractors and their sureties.
18. Force Majeure
Any delay in the performance of any obligation under this Agreement shall be excused, if
and so long as the performance of the obligation is prevented, delayed or otherwise
hindered by any act not within the control of a party such as fire, cyber/ransomware attack,
earthquake, flood, explosion, actions of the elements, riots, mob violence, strikes,
pandemic, lockouts, and emergency orders of the state or federal government.
19. Applicable Law
This Agreement and the rights of the parties will be governed by the laws, regulations, and
ordinances of the City, of the State of Washington, and King County. Venue for any action
involving this agreement will be in the county in which the property or project is located, and
if not site specific, then in King County. It is agreed that any applicable statute of limitation
will commence no later than the substantial completion by the Artist of the services.
20. Captions, Headings and Titles
All captions, headings or titles in the paragraphs or sections of this Agreement are inserted
for convenience of reference only and will not constitute a part of this Agreement or act as
a limitation of the scope of the particular paragraph or sections to which they apply.
Where appropriate, the singular will include the plural and vice versa and masculine,
feminine and neuter expressions will be interchangeable. Interpretation or construction of
this Agreement will not be affected by any determination as to who is the drafter of this
Agreement, this Agreement having been drafted by mutual agreement of the parties.
21. Severable Provisions
Each provision of this Agreement is intended to be severable. If any provision is illegal or
invalid for any reason, such illegality or invalidity will not affect the validity of the remaining
provisions.
Art by Cody Esp — Esp Beautification through Art PIN 7815700172
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22. Entire Agreement
This Agreement together with any subsequent amendments or addendums contains the
entire understanding of the parties in respect to the transactions contemplated and
supersedes all prior representations, agreements and understandings between the parties,
either oral or written. No other understandings, oral or otherwise, regarding this
Agreement shall bind any party.
23. Visual Artists Rights Act Waiver
The Artist acknowledges that the Work is a work of visual art that is subject to the Visual
Artists Rights Act of 1990 (VARA, 17 U.S.C. §101, et. seq.). The VARA protects certain
rights of creators of artwork, including the right to prevent distortion, mutilation and
modification of their artwork. Artist understands that the installation and use of the Work at
this outdoor Site will subject the Work to weather and other forms of potential destruction,
distortion, mutilation and modification, and hereby waives all rights granted under the
VARA.
24. Counterparts
This Agreement may be executed in multiple counterparts, each of which will be one and
the same Agreement and will become effective when one or more counterparts have been
signed by each of the parties and delivered to the other party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
effective the day and year first set forth above.
CITY OF AUBURN
DocuSigned by:
N�5 7/17/2023
Nancy ac us; Mayor
Approved as to form:
DocuSigned by: I
(�AVV j�jOt,SGItt. 7/17/2023
Harry oesc e, Acting City Attorney
ART BY CODY ESP
DocuSigned by:
7/17/2023
E884Y65F
Cody Esp, Artist
Art by Cody Esp — Esp Beautification through Art PIN 7815700172
7117/23
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EXHIBIT A
Scope of Work
Develop and design artwork for the following facilities located on the Site: The eastern trash
enclosure (all four sides), and 2) the three electrical transformer boxes located along the eastern
boundary of the Lot
Deliver vector files for the electrical boxes artwork. (Artist is not responsible for installation of
this artwork)
Paint the City approved artwork on the trash enclosure. The artwork should cover the vast
majority of the trash enclosures exterior surface.
o City shall ensure that all vegetation surrounding the trash enclosure is cut back allowing
the artist room to work.
o The artist shall be responsible for any cleaning of the enclosure surface required prior to
painting
o The artist shall cover the enclosures artwork with a City approved coating that prohibits
graffiti paint from bonding to its surface
o Design application may slightly differ in application from approved design
Total Contract Amount: $10,000.00
Payment Terms:
o 50% due upon execution of the contract
o Remaining balance due upon acceptance by the City of completed work
Art by Cody Esp — Esp Beautification through Art PIN 7815700172
7/17/23
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