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HomeMy WebLinkAboutCAG1990-017 - Original - Agreement for Art Work - Silicon Bronze Sculpture at Fire Stations Contract for Commissioning of Q-,iginal Works of Art Kent Arts Commi on City of Kent Artist: Larry Anderson Owner: City of Kent Location: North Industrial Fire Station 20676 72nd Ave. So. Kent WA 98032 Telephone: 863-2344 West Hill Fire Station 26512 Military Road Media: silicon bronze sculpture Kent, WA 98032 Actual Cost of Artwork: 23,894 Sales Tax: 2, 106 Total : 26 000 Tax IO # '513 Installation deadline: December 29, 1990 AGREEMENT FOR ART WORK AGREEMENT BY AND BETWEEN THE CITY OF KENT AND LARRY ANDERSON THIS AGREEMENT, entered into this 9th day of April , 1990, by and between the City of Kent (the "City"), and Larry Anderson (the "Artist") residing at 18207 74th St. E. , Bonney Lake, WA 98390. 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 adopted by the Kent Arts Commission to design, execute, fabricate and install works of art (the "Work") at and about the North Industrial and West Hill Fire Stations as set forth on Exhibit A attached hereto and incorporated herein by this reference (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 guarantee durability of workmanship and materials of the work which shall be free from fault or defect for the first 12 months of its use. - 1 - AGREEMENT FOR AR1 WORK AGREEMENT BY AND BETWEEN THE CITY OF KENT AND LARRY ANDERSON THIS AGREEMENT, entered into this 9th day of April , 1990, by and between the City of Kent (the "City") , and Larry Anderson (the "Artist") residing at 18207 74th St. E. , Bonney Lake, WA 98390. 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 adopted by the Kent Arts Commission to design, execute, fabricate and install works of art (the "Work") at and about Riverbend Golf Course as set forth on Exhibit A attached hereto and incorporated herein by this reference (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 guarantee durability of workmanship and materials of the work which shall be free from fault or defect for the first 12 months of its use. - 1 - 1.2 Structural Design Review. a. 'Within 30 days after the City approves the Proposal which is attached hereto and incorporated herein by this reference, the Artist shall , after consultation and collaboration with the project architect, 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 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. Time is of the essence for this Agreement. Delays in meeting the schedule increase costs to the City. 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. - 2 - b. The City shall have the ,ight to review the Work at reasonable times during the fabrication thereof. The Artist shall submit to the City progress reports in accordance witr the schedule provided for in Section 1.3(a) . c. The Artist shall complet:.- the fabrication and installation of the Work in substantial conformity with the Proposal or approved amendments thereto. d. The Artist shall first ; resent 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 or approved amendments thereto. 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 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. - 3 - c. Upon installation of t. Work, the Artist shall provide to the City written instructions for appropriate maintenance and preservation of the Work. 1 .6 Final Acceptance. a. The Artist shall advise the City in writing when all services required prior to those described in Section 1 .5(b) have been completed in substantial conformity with the Proposal . b. The City shall notify the Artist of its final acceptance of the Work. 1.7 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 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, agents, and employees from all claims, litigation, injuries and costs arising out of actions of the Artist, Artist's employees and agents to the extent of Artist, Artist's employees and agents negligent acts, errors, and/or omissions. 1 .8 Title. Title to the Work shall pass to the City upon final acceptance by the City. 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. 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 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 fifteen thousand and no dollars - 4 - ($15,000.00) . In the event that it is detei - i ned 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 (o adjustment as set forth in Section VIII . Payments will be made upon a percentage of completion as set forth below: Payment 40% ($10,400) Within thirty (30) days of completion of design and execution of contract. Payment 30% ($ 7,800) Within thirty (30) days of fifty (50) percent completion of fabrication of work. Payment 30% ($ 7,800) 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 and the project accepted as 100 percent complete 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 her 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 by the City in performing its obligations under this Agreement or in completing the underlying capital project, or if conditions beyond the Artist's control - 5 - render performance of the Artist's services opossible 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 l . l .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 QuaTity 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 l .l .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 12 months as outlined in Section l . l .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 or cause to be cured reasonably and promptly the breach of any such warranty, the cure shall be 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 - 6 - of the Work, which shall occur after installaJ on is complete and the Work is finally approved and accepted by the City. 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; provided, however, 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 and supervision of the City or its agents for the purposes of transporting, storing, installing or performing any other ancillary services to the Work, provided further, 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. 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 seg. , 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 that a copy be made, the Artist reserves the right to make up to two (2) copies of the Work. The decision as to whether or not to make a copy shall be based upon the following criteria: (a) Distance away from the original ; the Artist agrees not to place any copy any other place in the State of Washington. (b) Suitability of site; the Artist agrees to place any copy in an appropriate and tasteful environment which will not demean the Work or the City or the Artist. (c) Price; the Artist agrees not to charge less for the copy than was paid by the City for the original work. The Artist shall set his name and date to any copy, 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 any reason whatsoever, provided the City pays the Artist ten percent (10%) of the profits from any sales or other money-making activity using the two-dimensional reproduction as its feature. - 7 - 6.2 All reproductions by the Cit, shall contain a credit to the Artist and a copyright notice substantially in the following form: "(c) 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," 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. 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 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. 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 to the extent practical , 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. b. All repairs and restorations shall be made in accordance with recognized principles of conservation. c. During the creation of the Work, there is also the creation of molds for the Work. These molds developed by the Artist and/or the foundry shall remain the property of the Artist. The molds shall be stored at no cost to the Artist by the City at a suitable location deemed appropriate by the City. The City shall not be responsible for damage, destruction, loss, or theft of the molds while they are stored by the City. - 8 - 7.4. Alteration of the Work or i 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. If the City sells the work, the City agrees to pay the Artist ten percent (10%) of the profit made on the sale. Profit is defined as the sale price minus the original cost of the work and any expense and/or fees involved in selling the work. 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. The City shall make reasonable efforts to locate the Artist when matters arise relating to the Artist's rights by contacting the Artist at his last known address. 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 Section 7.1-7.6 shall terminate on the death of the Artist. The City agrees that any - 9 - subsequent purchaser of the Work will be given a ..opy of this agreement so to be bound thereby. Article 8. Artist as Independent Contractor. the Artist shall perform all work under this Agreement as an independent ontractor 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 and first approved in writing by the City. Article 10. Termination. If either party to this Agreement shall 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 so long as such services are not in dispute. 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, - 10 - 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 or her 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 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 - 11 - acceptability of the work or any alleged bi !a h i ;ereof, which cannot be otherwise settled shall be subject to the jirisdiction of civil actions brought before King County courts in the State of Washington. Article 20. Notices. All notices, requests, emands and other communications which are required or permitted to be given urier 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 regis- tered 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: Larry Anderson 18207 74th St. E. Bonney Lake, WA 98390 IN WITNESS WHEREOF the parties hereto have executed this Agreement on the day and year first written above. AGENCY: it o Cent ARTIST: — BY: BY: TITLE: Mayor of Kent TITLE: DATE: DATE: 7 1 z C� WITNESS: MARIE JENSEN CITY CLERK Approved as to form: SAND TA_ DRIS O L, qjTY ATTORNEY - 12 - ATTACHMENT A PUBLIC REPORT FORNAT 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. 4335L-1L 13 - ATTACHMEN-i B STATEMENT OF MAINTE� \NCE To assist maximum life of the artwork, the ,ior of art commissioned under this contract should be maintained in accordance to ';he following procedures. When applicable, a copy of the Statement of Maintenance is to be attached to the back of the artwork. 4335L-1L - 14 - TECHNICAL AND MAINTENACE RECORD 3-DIMENSIONA1 NAME OF ARTIST ACCESSION NO. TITLE OF WORK SPECIAL METHODS AND MATERIALS UTILIZED IN EXECUTION OF ARTWORK A. MATERIAL MATERIAL THICKNESS B. WELDING OR JOINTING METHOD C. WELDING ROD ALLOY OR JOINT MATERIAL D. CASTING ALLOY, WAX BODY, GLASS OR FIBER TYPE E. TECHNIQUE OR CONSTRUCTION METHOD (attach fabrication drawings) F. MATERIAL FINISH (glaze, paint color and type, sanding grit, tool pattern, patina, surface sealer) G. FOUNDATION INSTALLATION STRUCTURE (include bolt/pin size and grout) H. YEARLY MAINTENANCE AND CARE OF ARTWORK (cleaning agent and procedure) I . PLACEMENT OF ARTWORK (cautions regarding sunlight, heat, etc. ) J. PACKING/SHIPPING INSTRUCTIONS 4335L-1L - 15 -