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HomeMy WebLinkAboutCAG2001-0430 - Original - Linda Haddad - Artwork for Kent Commons - 03/01/2001 1� a AGREEMENT FOR ART WORK AGREEMENT BY AND BETWEEN THE CITY OF KENT AND LAURA HADDAD THIS AGREEMENT, entered into this 1st day of March, 2001, by and between the City of Kent(the "City"), and Laura Haddad (herein called "the Artist"), located and doing business at 5501 Airport Way South, Studio#4, Seattle,WA 98108. WHEREAS,the City is implementing a public art program pursuant to Ordinance 2552 by allocating certain funds for the establishment of artworks in certain public places and authorizing the making of payments for the design, execution,fabrication, transportation and installation of works of art and the support of an artist- selection process; and WHEREAS,funds have been allocated for the selection, purchase and placement of artwork; and WHEREAS, the Artist was selected by the City through the procedures duly adopted by the Kent Arts Commission to design, execute, fabricate and install works of art(the"Work")at Kent Commons (the"Site"); and 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, for the consideration and under the conditions hereinafter set forth, agree as follows: Article 1. Scope of Services. 1.1 General. a. The Artist shall perform all services and work, and furnish all supplies, material and equipment as necessary for the design, execution, fabrication, transportation and installation of the Work at the Site as set forth in Exhibit A. b. The Artist shall determine the artistic expression, scope, design, color, size, material,texture, and location on the site of the Work, subject to review and acceptance by the City as set forth in this Agreement. c. The Artist will estimate the life of the Work and will guarantee durability of workmanship and materials against normal exposure to the elements at Kent Commons for one(1)year. 1.2 Structural Design Review. The Artist shall utilize the services of a professional structural engineering firm to obtain a review of the Artist's work to ensure that it conforms to safety and material standards. Should the professional structural engineering firm find that the Artist's work does not conform to safety and material standards,the Artist shall be required to make the necessary changes at her own expense. a. Within 30 days after the City approves the Proposal,the Artist shall prepare and submit to the City detailed working drawings of the Work and the Site, together with such other graphic material as may reasonably be requested by the City in order to permit the City to carry out structural design review and to certify the compliance of the Work with any applicable statutes and ordinances. The City shall furnish to the Artist all information, materials and assistance required by the Artist in connection with said submissions by the Artist promptly on the request by the Artist for such information. b. The City may require the Artist to make such revisions to the Proposal as are necessary for the Work to comply with applicable statutes, ordinances or regulations of any governmental regulatory agency 1 having jurisdiction over the project. c.The City may also request revisions for other practical (non-aesthetic) reasons. d. Within 10 days after the receipt of the Artist's submission pursuant to Section 1.3, the City shall notify the Artist of its approval, or disapproval, of such submission and of all revisions made in the Proposal as a result thereof. Revisions made pursuant to this agreement become a part of the Proposal. 1.3 Execution of the Work. a. After written approval of the submissions and revisions made pursuant to Section 1.2, the Artist shall furnish to the City a schedule for completion of fabrication and installation of the Work, including a schedule for the submission of progress reports if any. After written approval of the schedule by the City,the Artist shall fabricate,transport and install the Work in accordance with such schedule. Such schedule may be amended by written agreement between the City and the Artist. b. The City shall have the right to review the Work at reasonable times during the fabrication thereof. The Artist shall submit to the City progress reports in accordance with the schedule provided for in Section 1.3(a). C. The Artist shall complete the fabrication and installation of the Work in substantial conformity with the Proposal, attached as Exhibit A and incorporated by this reference. d. The Artist shall first 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. e. In the event the services of the Artist are integrated into, combined or otherwise coordinated with services by third parties not within the control of the Artist, the Artist shall not be responsible for such third party services. If proper execution or results of the Artist's work depends upon the work of the City or a third party, the Artist shall, prior to proceeding with the work, promptly report to the City any apparent discrepancies or defects in such third party's work that renders it unsuitable for proper execution and results. The Artist shall not be responsible for any liability because of such discrepancies or defects. Any costs incurred as a result of the defective work shall be borne by the party responsible for such discrepancy or defect. 1.4 Delivery and Installation. a. The Artist shall notify the City in writing when fabrication of the Work is completed and she is ready for its delivery and installation at the Site. b. The Artist shall deliver and install the completed Work at the Site or deliver the work for installation by contractor at the site in compliance with procedures approved by the City pursuant to Section 1.3 in accordance with the approved schedule. 1.5 Post-Installation. a. The Artist shall be available at such time or times as may be agreed between the City and the Artist to attend any inauguration or 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 in such art publications and otherwise as may be determined between the City and the Artist as soon as practicable following installation. b. Upon installation of the Work, the Artist shall provide to the City written instructions for 2 appropriate maintename 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(b)have been completed in substantial conformity with the Proposal. b. The City shall notify the Artist of its final acceptance of the Work. c. Renal acceptance shall be effective as of the earlier to occur of(1)the date of the City's notification of final acceptance or(2)the 30th day after the Artist has sent the written notice to the City required under Section 1.6(a) useless the City, upon receipt of such notice and prior to the expiration of the 30-day period, gives the Artist written notice specifying and describing the services which have not been completed. 1.7 Risk of Loss. The risk of loss or damage to the Work shall be borne by the Artist until final acceptance by the City pursuant to section 1.6 (c), and the Artist shall take such measures as are necessary to protect the Work from loss or damage until final acceptance; except that the risk of loss or damage shall be borne by the City prior to final acceptance during such periods of time as the partially or wholly completed Work is in the actual custody, contro8 or supervision of the City or its agents for the purposes of transporting, storing, installing or performing any other ancillary services to the Work. Provided that the risk of loss and damage of the Work due to structural or design deflect shall be borne by the Artist at all times prior to and after acceptance during the warranty period. 1.8 Indemnity by City. Each party shall defend, indemnify and hold the other harmless for losses attributed to each party's own comparative negligence. Upon final acceptance of the Work, the City shall, to the extent of its negligence, indemnify and hold harmless the Artist against any and all claims or liabilities then existing or arising thereafter in connection with the Work, the Site, the Project or this Agreement, except claims by the City against the Artist and claims which may occur as a result of the Artist's breach of the warranties provided in Article 4. Artist shall indemnify and hold harmless the City of Kent, its elected officials, officers, Kent Arts Commission, and employees from all claims, litigation and injuries arising out of actions of the Artist, Artist's employees and agents to the extent of their negligent acts, errors, and omissions. 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, maquettes and models prepared and submitted under this Agreement shall be returned to the Artist and shall belong to the Artist. The City may select and the Artist shall convey to the City one of the original drawings submitted pursuant to Section 1.2 as part of the Proposal,the City representing that such drawing(s)will be used by it solely for exhibition and held by it in permanent safekeeping. At the request of the City, the Artist agrees to loan the City studies, drawings, maquettes for use in exhibits of display for reasonable periods to be mutually agreed upon by the Artist and City, the Artist agrees not to unreasonably withhold Artist consent. Article 2. Comoensatfon and Payment Schedule. 2.1 The Artist shall be paid by the City for completed work and/or services related to this Agreement only as provided hereinafter. Such payment shall be in full compensation for all work performed and/or services rendered, and for all supervision, labor, supplies, materials,travel expenses, equipment or use thereof, and for all other incidentals necessary to complete the Work. Total payment shall not exceed the sum fee of Seventy-three 3 thousand dollars ($73,000). In the event that it is determined that the Washington State sales tax applies to services rendered by the Artist,the City agrees to pay such amounts owing to the State Revenue Department through payment to the Artist who shall be responsible for collecting and reporting such tax monies to the State. The total payment is subject to adjustment asset forth in Section Vill. Payments will be made upon a percentage of completion as set forth below: Payment$14,600 Upon completion of execution of contract. Payment$10,950 Upon twenty-five (25)percent completion of fabrication of work. Payment$10,950 Upon fifty (50)percent completion of fabrication of work. Payment$10,950 Upon seventy-five(75)percent completion of fabrication of work. Payment$25,550 Within thirty(30)days of completion of installation on site if all other contracted services have been provided, no claims by laborers or materialmen have been filed, all taxes have been paid, required releases have been received from the State Department of Revenue and Labor and Industries, and the project finally accepted by the City. 2.2 Artist's Expenses. The Artist shall be responsible for the payment of all mailing or shipping charges on submissions to the City,the costs of transporting the Work to the Site and 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. 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, provided that such time limits may be extended or otherwise modified by written. agreement between the Artist and the City. 3.2 Early Completion of Artist Services. The Artist shall bear the transportation and storage costs resulting from the completion of Artist services hereunder prior to the time provided in the schedule for installation. 3.3 Time Extensions. The City shall grant a reasonable extension of time to the Artist in the event there is a delay on the part of the City in performing its obligations under this Agreement or in completing the underlying capital project, or if conditions beyond the Artist's control or Acts of God render performance of the Artist's services impossible or unexpectedly burdensome. Failure to fulfill contract obligations due to conditions beyond either parry's reasonable control will not be considered a breach of contract; provided that such obligations shall be suspended only for the duration of such conditions. Article 4. Warranties 4.1 Warranties of Title. In addition to the warranty set forth in paragraph 1.1.c.,the Artist also 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)that the Work 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 whatsoever. This warranty shall apply only to that artwork which is entirely that of the Artists (or persons responsible to her), as installed and shall not apply to materials or workmanship of products integrated or 4 combined or to materials purchased, acquired or installed by any one person or entity other than the Artist. 4.2 Warranties of Quality and Condition. In addition to the warranty set forth in paragraph 1.1.c., Artist represents and warrants, except as otherwise disclosed to the City in writing in connection with submission of the Proposal pursuant to Section 1.1.b and 1.2.c,that: (a)the execution and fabrication of the Work will be performed in a workmanlike manner; (b)the Work, as fabricated and installed,will be free of defects in material and workmanship, including any defects consisting of"inherent vice"or qualities which cause or accelerate deterioration of the Work; and (c)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 to the City hereunder. The warranties described in this Section 4.2 shall survive for a period of one (1)year as outlined in Section 1.1.c, 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 (includiing,for example, cure by means of repair or refabrication of the Work). THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,WHICH MAY BE DEEMED APPLICABLE TO THE ARTWORK, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. Article 5. Insurance. 5.1 Prior to the initiation of any on-site workshops, installation or fabrication, the Artist and/or his/her subcontractors shall purchase and maintain for the duration of any on-site fabrication and/or installation, comprehensive general liability insurance against claims for injuries to persons or damages to property which may arise from, or in connection with, the performance of work done by the Artist, his/her agents, representatives, employees, and/or subcontractors. a. The Artist shall provide a policy of insurance,covering all risks and hazards against any damage to or loss of the Work while it is being made and installed. b.The artist and/or her subcontractors shall pay for the costs of the required insurance. c. All insurance policies must cover City of Kent, its officers, officials, employees and agents as additional insured as respects: liability arising out of activities performed by or on behalf of the Artist in connection with this Contract. d.The Artist and/her subcontractors must furnish certificates of insurance and policy endorsements as evidence of compliance with all insurance requirements of this Contract. e.The minimum Scope and minimum Limits of insurance required by the Contract are as follows: Coverage shall be at least as broad as follows: 1. COMMERCIAL GENERAL LIABILITY: Insurance coverage during installation of the artworks in an amount equal to$1,000,000 combined single limit per occurrence by bodily injury, personal injury and property damage. 5 Article 6. Reproduction Rights. 6.1 The Artist retains all rights she may be entitled to pursuant to the Copyright Act of 1976, 17 U.S.C. 101 at sea., and all other rights in and to the Work except ownership and possession, and except as such rights are limited by this Section 6.1. Because the parties intend that the Work in its final dimension shall be unique, the Artist shall not make any additional exact duplicate, three-dimensional reproductions of the Work or permit others to do so except by written permission of the City.The Artist grants to the City and its assigns an irrevocable license to graphically reproduce the Work in any non-commercial manner whatsoever, including for the purposes of publicity,education, or exhibition of the artwork. 6.2 All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: ©Artist's name, date of creation. 6.3 The Artist shall use her best efforts to give a credit reading substantially, "an original work owned and commissioned by the City of Kent," in any public showing under the Artist's control of reproductions of the Work. 6.4 The Artist may at her own expense cause to be registered,with the United States Register of Copyrights, a copyright of the Work in the Artist's name. 6.5 If for any reason the proposed design is not implemented, all rights to the proposed Artist's artwork shall be recognized as the Artist's intellectual property and protected from infringement in accordance with Federal Law. Article 7. Artist's Riahts. 7.1 Identification. The Artist shall, at her sole expense, prepare and install at the Site, pursuant to the written instructions and subsequent approval of the City,a plaque identifying the Artist,the title of the Work and the year of completion, accession number,the words"Kent City Art Program"and if applicable,the names of all sponsors associated with funding of the Work. 7.2 Maintenance. The City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work. The City shall take reasonable steps to assure that the Work is maintained and protected. The City shall take into account the instructions and recommendations of the Artist and shall take reasonable steps to protect and maintain the Work against the ravages of time,vandalism, and the elements. 7.3 Repairs and Restoration. a. The City shall have the right to determine, after consultation with a professional conservator, when and if repairs and restorations to the Work will be made. Prior to commencing any repairs or restorations that may substantially change the appearance of the artwork,the City shall attempt to notify the Artist of the proposed change and shall provide the Artist a reasonable opportunity to consult with the City regarding the change. To the extent practical, the Artist shall be given the opportunity to make or personally supervise significant repairs and restorations. 7.4 Alteration of the Work or of the Site. a. The City shall attempt to notify the Artist of any proposed alteration of the Site that would affect the intended character and appearance of the Work and shall provide a reasonable opportunity to 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. 6 b. Nothing in this Section 7.4 shall preclude any right of the City(1)to remove the Work from public display or(2)to sell or destroy the Work for any reason. If the City at any time decides to sell or destroy the Work, it shall, by written notice to the Artist's last known address to the City, offer the Artist a reasonable opportunity to purchase or recover the Work, at the Artist's sole expense and without unreasonably delaying or interfering with the City's work, and pursuant to Washington State law for the disposition of property and applicable local ordinances, policies,or rules relating to the disposition of City personal property. Ownership of any artwork removed by the Artist pursuant to this provision shall revert to the Artist. 7.5 Artist's Address. The Artist shall notify the City of changes in address. The failure to do so, if such failure prevents the City from locating the Artist, shall be deemed a waiver by the Artist of the right subsequently to enforce those provisions of this Article 7. Notwithstanding this provision, the City shall make every reasonable effort to locate the Artist when matters arise relating to the Artist's rights. 7.6 Surviving Covenants. The covenants and obligations set forth in this Article 7 shall be binding upon the parties, their heirs, legatees, executors, administrators, assigns,transferees and all their successors in interest, and the City's covenants do attach and run with the Work and shall be binding to and until twenty(20) years after the death of the Artist. However,the obligations imposed upon the City by Sections 7.3(a), 7.4 and 7.6 shall terminate on the death of the Artist. The City agrees that any subsequent purchaser of the Work will be given Notice of the covenants herein in writing so to be bound thereby. In the event of the Artist's death, the City shall pay any outstanding amounts to the Artist at the time of death to the Artist's estate. Article 8. Artist as Indeoendent Contractor. The Artist shall perform all work under this Agreement as an independent contractor and not as an agent or an employee of the City. The Artist shall not be supervised by any employee of the City nor shall the Artist exercise supervision over any employee or official of the City. Article 9. Assionment. Transfer, Subcontractina. 9.1 Neither the City nor the Artist shall assign or transfer an interest in this Agreement without the prior written consent of the other, provided, however,that claims for money due or to become due from the City under this Agreement may be assigned to a financial institution without approval. 9.2 The Artist may subcontract portions of the Work at the Artist's expense provided that said subcontracting shall not affect the design, appearance or visual quality of the Work and that such Work is carried out under the personal supervision of the Artist and first approved by the City of Kent. Article 10. Termination_ If either party to this Agreement shall willfully or negligently fail to fulfill in a timely and proper manner, or otherwise violate any 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. The defaulting party shall have thirty(30) days after receipt of the notice to cure the default to the satisfaction of the other party. If it is not cured, then this Agreement shall terminate. In the event of default by the Artist, all finished and unfinished drawings, sketches, photographs, and other prefabrication work prepared and submitted or prepared for submission by the Artist under 7 this Agreement shall, at the City's option, become its property, provided that no right to fabricate or execute the Work shall pass to the City, and the City shall reasonably compensate the Artist pursuant to Article 2 for all such prefabrication work and any fabrication work deemed useable by the city and concurred upon by the Artist which was performed by the Artist prior to termination. Notwithstanding the above,the Artist shall not be relieved of liability to the City for damages sustained by the City by virtue of any breach of the Agreement by the Artist, and the City may reasonably withhold payments to the Artist until such time as the exact amount of damages due the City from the Artist is determined. In the event of default by the City, the City shall promptly compensate the Artist for any unpaid amount for the services performed by the Artist and for all materials purchased by the Artist in performance of the obligations made under this agreement prior to termination. Article 11. Contract Administrator. The Contract Administrator for this Agreement shall be the Director of Parks, Recreation and Community Services, or his designee. Wherever this Agreement requires any notice to be given to or by the City, or any determination or action to be made by the City, the Director of Parks, Recreation and Community Services or designee shall represent and act for the City. Article 12. Non-Discrimination. In carrying out the performance of the services designated,the Artist shall not discriminate as to race, creed, religion, sex, age, national origin or the presence of any physical, mental or sensory handicap, and the Artist shall comply with the equality of employment opportunity provisions of applicable Federal, State, and local law as presently existing or hereafter amended. Article 13. Compliance. The Artist shall be required to comply with Federal, State and City statutes, ordinances and regulations applicable to the performance of the Artist's services under this Agreement. Article 14. Entire Agreement. This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written,with reference to the subject matter hereof that are not merged herein and superseded hereby. Article 15. Modification. No alteration, change or modification of the terms of the Agreement shall be valid unless made in writing and signed by both parties hereto and approved by appropriate action of the City. Article 16. Waiver. No waiver of performance by either party shall be construed, or operate as a waiver of any subsequent default of any terms, covenants and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. Article 17. Governing Law. This Agreement, regardless of where executed, shall be governed by and construed in accordance with the laws of the State of Washington. Article 18. Heirs and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the City and 8 t the Artist and their respective heirs, personal representative,successors and permitted assigns. Article 19. Dispute Resolution. All disputes or controversies that may arise between the parties with respect to the performance, obligations or rights of the parties under this Agreement, including disputes as to the physical acceptability of the work or any alleged breach thereof,which cannot be otherwise settled shall be subject to the jurisdiction of civil actions brought before King County courts in the State of Washington and be determined under the laws of the State of Washington. Article 20. Notices. All notices, requests, demands and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid,as follows: a. If the City,to: City of Kent Director of Parks, Recreation and Community Services 220 4th Avenue South Kent,WA 98032 b. If the Artist, to: Laura Haddad 5501 Airport Way South Studio#4 Seattle,WA 98108 IN WITNESS WHEREOF the parties hereto have executed this Agreement on the day and year first written above. AGENCY C4tv of ARTIST: La r Haddad BY: BY: &t� TITLE: Mavor TITLE:: Arti t DATE: ?-O f DATE: .3 JaT� AGENCY: City f nt BY: TITLE i or of Parks, ecre ti n & Community rvi DATE: 3 27 b/ WITNESS:,.�2� a t. �u✓ CITY CLEFILK Approved as to form: Roger Lubovich CITY ATTORNEY 9 EXHIBIT "A" A Geometric Gameboard of Time within Time. This Millennium Time Capsule is a plaza artwork and garden. The site is approximately square,and so the plaza is laid out as a series of squares within squares,where each square houses a different time capsule. All the time capsules represent either Auld Time(moving into the future)or Frozen Time (commemorating the past). The composition of simple geometric forms,including squares,circles,and triangles,creates a gameboard-effect of boxes that open into other boxes,and so on. 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