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HomeMy WebLinkAboutCAG1992-0022 - Original - Roger Broer - Commissioning of Original Works of Art: Painting Portable Mural - 08/05/1992 Contract for Commissioning of Original Works of Art Kent Arts Commission City of Kent Artist: Roger Broer Owner: City of Kent Address: 29621 154th Ave. S.E. Location: painting - portable mural Kent WA 98042 First Interstate Bank 204 W. Meeker, Kent, WA Telephone: (206) 630-9105 Media: sign quality plywood and acrylic paint Actual Cost of Artwork: $ 9, 180 Sales Tax: 820 Total : 10,000 Completion date: December 31, 1992 AGREEMENT FOR ART WORK AGREEMENT BY AND BETWEEN THE CITY OF KENT AND ROGER BROER THIS AGREEMENT, entered into this 5th day of August, 1992, by and between the City of Kent (the "City") , and Roger Broer (the "Artist") residing at 29621 154th Ave. S.E. , Kent, Washington 98042. 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 and fabricate an original compositional painting, and design, execute, fabricate and install a mural (the "Work") at the First Interstate Bank, 204 West Meeker, Kent (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. 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 wear and tear - 1 - (not including vandalism) and exposure to the elements at the First Interstate Bank site for one (1) year. 1 .2 Structural Design Review. 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 design review and to certify the compliance of the Work with any applicable statutes and ordinances. The City and the project architect 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 having jurisdiction over the project. c. The City may also request revisions for other practical (non-aesthetic) reasons. d. Within 10 days after it receipt of the Artist's submission pursuant to this 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 Section 1 .3 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. Because the City finds it impractical to calculate the actual cost of delays, the City and Artist agree that for every working day beyond the scheduled deadlines for completion, the City shall deduct as liquidated damages fifty dollars ($50.00) per day from any money due or coming due to the Artist under this Agreement. b. The City shall have the right to review the Work at reasonable times during the fabrication thereof. The Artist shall submit to - 2 - 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 . 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 . 1.4 Delivery and Installation. a. The Artist shall notify the City when fabrication of the Work is completed and he is ready for its delivery and installation at the Site. b. The Artist shall deliver and install the completed Work 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. Within 30 days after the installation of the Work, the Artist shall furnish the City with the following photographs of the Work as installed: (a) two sets of three 35 mm. color slides of the completed Work, one taken from each of three different viewpoints; and (b) two sets of three different 8" x 10" glossy black and white prints of the Work and negatives. b. 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. c. Upon installation of the Work, the Artist shall provide to the City written instructions for appropriate maintenance and preservation of the Work. - 3 - 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. Final 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) unless 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, 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, control 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 defect shall be borne by the Artist at all times prior to and after acceptance during the warranty period. 1 .8 Indemnity by City. 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, injuries arising out of actions of the Artist, Artist's employees and agents to the extent of negligent acts, errors, and omissions. 1.9 Title. Title to the Work shall pass to the City upon final acceptance by the City. 1.10 Ownership of Documents, Models. Upon final acceptance, all studies, drawings, designs, maquettes and models prepared and submitted under - 4 - 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 or displays for reasonable periods to be mutually agreed upon by the Artist and City. The Artist agrees not to unreasonably withhold his consent. Article 2. Compensation and Payment Schedule. 2.1 Subject to the liquidated damage provision of Section 1 .4 above, 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 ten thousand dollars ($10,000) . In the event that it is determined that the Washington State sales tax does apply 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 as set forth in Section VIII. Payments will be made upon a percentage of completion as set forth below: Payment 40% ($4,000) Upon completion of design and execution of contract. Payment 30% ($3,000) Upon fifty (50) percent completion of fabrication of work. Payment 30% ($3,000) 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, and all taxes have been paid and the project finally accepted by the City. 2.2 Artist's Expenses. The Artist may elect to request reimbursement for purchase of materials, in advance of the amount of the next scheduled payment so long as the amount of reimbursement does not exceed the - 5 - total of the next scheduled payment. 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 his 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 party'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. 4.2 Warranties of Quality and Condition. In addition to the warranty set forth in paragraph l .l .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 - 6 - 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 (including, for example, cure by means of repair or refabrication of the Work) . Article 5. Risk of Loss. 5.1 Risk of Loss. The risk of damage to or loss of the Work during development and through installation shall be solely that of the Artist. This risk shall transfer to the City only upon transfer of ownership of the Work, which shall occur after installation is complete and the Work is finally approved and accepted by the City. Article 6. Reproduction Rights. 6. 1 The Artist retains all rights he may be entitled to pursuant to the Copyright Act of 1976, 17 U.S.C. §§ 101 et sea. , and all other rights in and to the Work except ownership and possession, except as such rights are limited by this Section 6. 1 . The Artist intends that the Work be unique and original , and "one-of-a-kind" . However, at some future date, if it should be deemed by the Artist that it is advantageous to both the Artist and the City, the Artist reserves the right to make reproductions of the Work. The Artist agrees to convey to the City ten (10) percent of the press run of the reproduction providing that a notation be made on the reproductions conveyed to the City with the following words: "This reproduction is provided as a gift in a cooperative effort of the City of Kent, Washington and the artist Roger Broer. Additional copies are available and may be purchased from Great Plains Graphics, Inc. , P.O. Box 6412, Kent, WA 98064, (206) 630-9105. " - 7 - The Artist shall set his name and date to the reproductions, along with the words: "a reproduction of an original work owned and commissioned by the City of Kent, Washington" . The Artist grants to the City and its assigns an irrevocable license to make two-dimensional reproductions of the Work for purposes of advertising, display, and inclusion in City brochures, excluding posters. 6.2 All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: "(c) 1992 Artist's name, date of publication" . 6.3 The Artist shall use his best efforts to give a credit reading substantially, "an original work owned and commissioned by the City of Kent, Washington" in any public showing under the Artist's control of reproductions of the Work: 6.4 The Artist may at his own expense cause to be registered, with the United States Register of Copyrights, a copyright of the Work in the Artist's name. Article 7. Artist's Rights. 7. 1 Identification. The Artist shall , at his 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 reasonably assure that the Work is properly maintained and protected taking into account the instructions and recommendations of the Artist and shall reasonably 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. During the Artist's lifetime, the Artist shall be consulted regarding the aesthetics of all repairs and restorations. To the extent practical , the Artist, during the Artist's lifetime, shall be given the opportunity to make or personally supervise significant repairs and restorations. - 8 - b. All repairs and restorations shall be made in accordance with recognized principles of conservation. 7.4. 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. 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 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 shall at any time decide 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 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. 7.5 Permanent Record. The City agrees to maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 7.6 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. 7.7 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) 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. 9 - Article 8. Artist as Independent 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, however, such Artist's work is subject to consultation with the Architect. Article 9. Assignment, Transfer, Subcontracting. 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. 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 work products prepared and submitted or prepared for submission by the Artist under 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 services 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. Article 11 . Contract Administrator. The Contract Administrator for this Agreement shall be the City Administrator, or his designee. Wherever this - 10 - Agreement requires any notice to be given to or by the City, or any determination or action to be made by the City, the City Administrator 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 the Artist and their respective heirs, personal representations, 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. - 11 - 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 City Administrator 220 4th Avenue South Kent, WA 98032 b. if to the Artist, at the address first above written with a copy to: Roger g621 Broer Ave. S.E. Kent, WA 98042 IN WITNESS WHEREOF the parties hereto have executed this Agreement on the day and year first written above. AGENCY: Ci of Kent ARTST� TITLE: Mayor of Kent TITLE: DATE: a- 51/ 9 DATE: c)—`Z WITNESS: BREND J COBER CITY CL K Approved as to form: R GER A. LUBOVICH, CIT TTTORNEY - 12 - ATTACHMENT A PUBLIC REPORT FORMAT To facilitate the understanding of works of art within public agencies, the Artist shall make a public report to the City, i .e. , program notes, pre-concert lecture prior to premier and Artist statement regarding the Work. 13 ATTACHMENT B STATEMENT OF MAINTENANCE To assist maximum life of the artwork, the work of art commissioned under this contract should be maintained in accordance to the following procedures. When applicable, a copy of the Statement of Maintenance is to be attached to the back of the artwork. BROERAGRYRK - 14 -