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5078
William W. Mueller dba Contemporary Sculpture
Contract for Purchased Artwork
DCD
LEG 12-1
10/11/2011
12/31/2011
1/1/2012
Comments :
CONTRACT FOR PURCHASED ARTWORK
THIS CONTRACT is entered into by CITY OF BREMERTON (the "City"), having
its principal offices at 345 — 6 Street, Su�te 600 and William W Mueller, dba
Contemporary Sculpture, (the "Artist") whose principal address is PO Box 711,
Sedalia, CO 80135
Telephone (720) 560-4632, wwmueller@yahoo com �
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In consideration of the mutual benefits and covenants contained herem, the City
and the Artist agree as follows
SECTION 1. EFFECTIVE DATE OF CONTRACT
The Contract will become effective on execution and terminate on December 31,
2011 or completion and approval of installation, whichever occurs first In no
event wdl the Contract become effective unless and untd it is approved and
executed by the City Council
SECTION 2. SERVICES TO BE PROVIDED
21 A description of the services to be perFormed by the Artist is set forth m
Exhibit A Description of Services, which is attached to the Contract and
incorporated by this reference
2 2 The Artist agrees to provide his own labor and materials Unless otherwise
prov�ded for in the Contract, the C�ty will furrnsh no material, labor or facilities
2 3 The Artist wdl perForm the work specified in the Contract according to
standard mdustry practice
2 4 The Artist wdl complete his work in a timely manner and in accordance with
the schedule agreed to by the parties
2 5 The Artist wdl perForm the services set forth above and required under this
contract in a satisfactory and competent manner Should the Artist employ and
subcontract with any third persons in the performance of this contract, the Artist
agrees that all such third persons will be bound by the terms and conditions of
this contract The Artist agrees to comply with ali applicable city, local, state and
federal laws, regulations and ordinances regardmg perFormance of all work
necessary to complete the services contracted for herem
2 6 The Artist will confer with the Arts Commission and City staff from time to
t�me durmg the progress of the work The Artist wdl prepare and present status
reports and other information that may be pertment and necessary, or as may be
requested by the Arts Commission or mandated in Exhibit A
SECTION 3. CONTRACT REPRESENTATIVES
The City and the Artist will each have a contract representative A pariy may
change its representative upon providmg written notice to the other party The
parties' representatives are as follows
City's Contract Representative
Pam Bykonen
345 — 6 Street, Suite 600
Bremerton, WA 98337
360-3473-5202
360-473-5278 (fax)
Pam Bykonen@ci bremerton wa us
Contractor's Contract Representative
SECTION 4. COMPENSATION
4 1 A descnption of the compensation to be paid to the Artist is set forth in
Exhibit A Compensation, which is attached to the Contract and incorporated by
this reference
4 2 The total amount payable under the Contract by the City to the Artist in no
event wdl exceed $7,100 00
4 3 The City shall determine dates of completion for stages of the proJect The
artist may submit an invoice to the City after each stage is completed Sub�ect to
the other provisions of the contract, the City wdl generally pay such an invoice
within 30 days of receivmg it It is understood that the City has no obligation
regarding sales commissions or any agreements with galleries or agents with
whom the Artist may have contracted
4 4 The Artist will be paid only for work expressly authorized in the Contract
4 5 The Artist will not be entitled to payment for any services that were
performed prior to the effective date of the Contract or after its termmation,
unless a provision of the Contract expressly provides otherwise
4 6 If the Artist fails to comply with any terms or conditions of this contract or to
provide in any manner the work or services agreed to herein, the City may
withhold any payment due the Artist until the City is satisfied that corrective
action, as specified by the City, has been completed This right is m addition to,
and not m lieu of, the City's right to terminate this contract
4 7 In the event that the Artist breaches any of the obligations, terms and
conditions of this contract, has failed to provide in any manner the work or
services agreed to herein, and if the City deems said breach to warrant corrective
action, the followmg sequential procedure shall be foilowed
1 The City shall notify the Artist m writmg of the nature of the breach,
2 The Artist shall respond m writmg w�thm ten (10) workmg days of his/her
receipt of such notice, and indicate m the response the steps being taken to
correct the specified non-compliance actions constituting breach The
corrective act�on plan shall specify the proposed completion date for
bnnging the Contract into compliance,
3 The City shall and hereafter notify the Artist m writing of the City's
determination as to the sufficiency of the Artist's corrective action plan The
determination of sufficiency of the Artist's corrective action pian shail be at
the sole discretion of the City,
4 In the event that either the Artist does not respond or provide a corrective
action plan w�thin ten (10) working days or the Artist's corrective action plan
is deemed to be insufficient, the City may terminate this contract in whole or
in part pursuant to the Termination Section,
5 In add�tion, the City may withhold any payment owed the Artist and/or
prohibit the Artist from incurring add�t�onal expenses until the City is satisfied
that corrective action has been taken or completed, and
6 Nothmg herein shall be deemed to affect or waive any rights the parties
may have pursuant to the Termmat�on Section
4 8 The contract amount is mclusive of all applicable state and federal taxes
mcludmg any Washmgton State Sales Tax owed by the City as a result of this
contract It is the responsibility of the Artist to remit any sales taxes to the
Washington State Department of Revenue
SECTION 5. AMENDMENTS AND CHANGES IN WORK - WARRANTIES
5 1 The Artist warrants that the design or work being commissioned is the
original product of his/her own creative efforts
5 2 The Artist shall be responsible for a period of one year from the date of
installation of the Artwork for the integrity of the materials and fabrication
techniques of the artwork and the installation Artist's liability for breach of this
warranty shaH be limited to the cost of repairs of the artwork and/or the
installation The responsibility for the determination of the Artist's liabdity for faults
or defects in the work during the one-year period shall be solely that of the City
The Artist is not expected to warrant damages caused by vandalism, normal
wear and tear and natural occurrences such as storms, fires, floods and
earthquake damage
5 3 In order to be effective, any Contract renewal, amendment or modification
must be m writmg, be signed by both parties and be attached to the Contract
Work under a renewal, an amendment or a modification may not commence until
the renewal, amendment or modification has been approved by the Arts
Commission, as well as the City Council, and has become effective
5 4 The City may request that the Artist provide additional services beyond those
required in the Scope of Service These add�tional services, if performed due to
unusual circumstances outside the Artist's contract which cause the Artist extra
work and expense, shall be paid for by the City m addition to the agreed upon fee
set forth in paragraph 4 2 above, provided that the Artist first obtains prior
authorization of the extra expense(s) by the City
SECTION 6. HOLD HARMLESS AND INDEMNIFICATION
6 1 The Artist will hold harmless, indemrnfy and defend the City, its officers,
officials, employees and agents, from and against any and all claims, actions,
suits, liabdity, loss, expenses, damages and �udgments of any nature
whatsoever, mciudmg reasonable costs and attorneys' fees m defense thereof,
for in�ury, sickness, disabdity or death to persons or damage to property or
business, caused by or arismg out of the acts, errors or omissions of the Artist, its
officers, employees or agents in the perFormance of the Contract Prov�ded,
however, that the Artist's obligation under this provision will not extend to in�ury,
sickness, disabdity, death or damage caused by or ansing out of the sole
negligence ofi the City, its officers, officiais, employees or agents The Artist's
duty extends to the claim by Contractors or any subcontractor's officers,
employees or agents For the purposes of this indemnification provision, the
Artist expressly waives its immunity under Title 51 (Industnal Insurance) of the
Revised Code of Washington and acknowledges that this waiver was mutually
negotiated by the parties
6 2 Prov�s�ons of this sect�on shall survive the exp�ration or terminat�on of this
agreement
6 3 The Artist's obligations under these prov�sions include, but are not limited to,
invest�gating, ad�ustmg and defending all claims alleging loss from action, error or
omission, or breach of any common law, statutory or other delegated duty by the
Artist, the Artist's employees, agents or subcontractors
SECTION 7. INSURANCE
7 1 Insurance coverage is not required dunng the design phase of this contract
or while the Artist is completmg work on the artwork in his/her studio Prior to the
commencement of any on-site mstallation or fabrication, the Artist and/or his/her
subcontractors shall purchase and maintain for the duration of any on-site
fabrication and/or installation, msurance agamst claims for inJuries to persons or
damages to property that may anse from, or in connect�on with, the performance
of work done by the Artist, his/her agents, representatives, employees, and/or
subcontractors
7 2 The Artist and/or his/her subcontractors shall pay for the costs of the
required msurance
7 3 All insurance policies shall name the City of Bremerton, its officers, officials,
employees and agents as additional msured's as respects liability arismg out of
activities performed by or on behalf of the Artist in connection with this Contract
7 4 Any deductibles or self-insured retentions must be deciared to, and
approved by, the C�ty The deductible and/or self-msured retention of the policies
shall not appiy to the Artist's liability to the City and shall be the sole responsibility
of the Artist
7 5 The Artist's insurance shali apply separately to each insured against whom
claim is made and/or lawsu�t is brought
7 6 The Artist's msurance coverage shall be the pnmary insurance as respect to
the City, its officers, officials, employees, and agents Any msurance and/or self-
insurance maintained by the City, its officers, officials, employees, or agents shall
not contribute to the Artist's insurance or benefit the Artist in any way
7 7 The mirnmum scope and minimum I�mits of msurance required by this
contract are as follows
1 WORKERS COMPENSATION Coverage as reqwred by the Industrial
Insurance Act of the State of Washmgton, Title 51, Revised Code of
Washmgton
2 PROFESSIONAL LIABILITY Visual Artists do NOT require professional
liabdity insurance However, in the event that services delivered as a part
of this contract require professional services, Professional Liabdity, Errors
and Omission coverage shall be provided "Professional Services", for the
purpose of this contract section shall mean any services provided by a
licensed professional, such as structural review or eng�neering
A The Artist will include all subcontractors as msured's under its
polic�es or will finish separate certificates and endorsements for each
subcontractor All coverage for subcontractors wdl be sub�ect to all of
the requirements stated in these provisions
B The insurance I�mits mandated for any insurance coverage required
by the Contract are not mtended to be an indication of exposure, nor are
they limitations on mdemnification
C If the Artist will be constructmg the artwork on site, the Artist will
provide $1,000,000 Commercial General Liability Insurance
7 8 Verification of Coverage and Acceptability of Insurers
A If the Artist performs any on-site fabrication, the Artist shall place
msurance with insurers licensed to do business in the State of Washington
and having A M Best Company ratmgs of no less than A-VII, with the
exception that excess and umbrella coverage used to meet the requirements
for lim�ts of liabd�ty-or gaps in coverage need not be placed with insurers or
re-insurers licensed in the State of Washington
'B If the Artist perForms any on-site fabrication, the Artist shall furnish the City
with properly executed certificates of insurance or a signed policy
endorsement that will clearly evidence all insurance required in this Section
within 10 days after the effective date of the Contract The certificates wdl, at
a mmimum, list limits of liabdity and coverage The certificate will provide that
the underlymg insurance contract may not be materially changed, canceled,
or allowed to expire, except on 30-days' prior wntten notice to the City Any
certificate or endorsement limitmg or negating the insurer's obligation to notify
the City of cancellation or changes must be amended so as not to negate the
intent of this provision
C If the Artist performs any on-site fabncation, the Artist shali furnish the
City with evidence that the additional-insured provision required above has
been met Acceptable forms of evidence are the endorsement pages of the
policy showing the City as an additional insured
D Written notice of cancellation or change shall be maded to the City at the
follow�ng address
Risk Management Div�sion
City of Bremerton Legal Department
345 — 6 Street, Suite 600
Bremerton, WA 98337
E If the Artist perForms any on-site fabrication, the Artist or his/her broker
shail provide a copy of all msurance policies specified in the Contract upon
request of the City of Bremerton Risk Manager
SECTION 8. TERMINATION
8 1 The City may terminate the Contract m whole or in part whenever the City
determmes, in its sole discretion, that such termination �s in the best interests of
the City The City may terminate the Contract upon giving the Contractor 10-
days' written notice In that event, the City will pay the Contractor for all costs
incurred by the Contractor in performing the Contract up to the date of such
notice, sub�ect to the other provisions of the Contract
8 2 If fundmg for the underlying proJect or matter is withdrawn, reduced or limited
in any way after the Contract is signed or becomes effective, the City may
summarily terminate the Contract notwithstandmg any other termmation provision
in the Contract Termination under this prov�sion will be effective upon the date
specified in the written notice of termination sent by City to the Artist No costs
incurred after the effective date of the termination will be paid
8 3 If the Artist breaches any of its obligations under the Contract, and fails to
cure the breach within 10 days of written notice to do so by the C�ty, the City may
terminate the Contract In that event, the City will pay the Artist only for the costs
of services accepted by the City Upon such termmation, the City, at its
discretion, may obtain perFormance of the work elsewhere, and the Artist wdl
bear all costs and expenses incurred by the City in completing the work and all
damages sustained by the City by reason of the Artist's breach
SECTION 9. ASSIGNMENT, DELEGATION AND SUBCONTRACTING
9 1 The Artist wdl perform under the Contract using only its bona fide employees
or agents, and the obligations and duties of the Artist under the Contract will not
be assigned, delegated or subcontracted to any other person or firm without the
prior express written consent of the City
9 2 The Artist warrants that it has not paid, nor has it agreed to pay, any
company, person, partnersh�p or firm, other than a bona fide employee working
exclusively for Artist, any fee, commission, percentage, brokerage fee, gift or
other consideration contmgent upon or resulting from the award or makmg of the
Contract
SECTION 10. INDEPENDENT CONTRACTOR
101 The Artist's services will be furnished by the Artist as an independent
contractor and not as an agent, an employee or a servant of the City The Artist
specificaliy has the right to direct and control Artist's own activities m providmg
the agreed services in accordance with the specifications set out in the Contract
The Artist and/or his/her agents or employees and/or sub-contractors shall make
no claim of career serv�ce or c�vil serv�ce rights which may accrue to a City
employee under state or local law
10 2 The Artist acknowledges that the entire compensation for the Artist is set
forth in the compensation provisions of the Contract and the Artist is not entitled
to any City benefits, includ�ng, but not limited to vacation pay, holiday pay, sick
leave pay, medical, dentai or other insurance benefits, fringe benefits, or any
other rights or privileges afforded to City employees
10 3 The Artist will have and maintain complete responsibdity and control over
all of its subcontractors, employees, agents and representatives No
subcontractor, employee, agent or representative of the Artist will be or be
deemed to be, or act or purport to act, as an employee, agent or representative
of the City
10 4 The City assumes no responsibility for the payment of any compensat�on,
wages, benefits, or state and/or federal taxes by, or on behalf of, the Artist The
Artist shall protect, indemnify and hold harmless the City its officials, officers,
agents, and employees from and against any and ail claims, costs, and/or losses
whatsoever occurrmg or resultmg from
1 The Artist's fadure to pay any compensation, wages, benefits, or taxes,
and/or
2 The Artist's receipt of work, services, materials, or supplies from the
Artist's employees, suppliers or sub-contractors in connection with or
support of the Artist's performance of services contracted for herem
10 5 The Artist further agrees that he/she is financialiy responsible for and will
repay the City all indicated amounts following an audit which occurs due to the
negligence, intentional act and/or fa�lure for any reason to comply with the terms
of this contract by the Artist, his/her employees, or agents The Artist's obligation
to repay the City shall not be dimmished or extmguished by the prior termination
of the contract pursuant to the Duration of Contract, or the Termmation Section
SECTION 11. NONDISCRIMINATION
11 1 The Artist, its assignees, delegates or subcontractors wdl not discnminate
agamst any person in performance of any of its obligations under the Contract on
the basis of race, color, creed, religion, national origin, age, sex, mantal status,
sexual orientation, veteran status or the presence of any disability
SECTION 12. OWNERSHIP OF MATERIALSNVORKS PRODUCED
12 1 The Artist and City agree that any proposal to alter, modify, or otherwise
change the work of the Artist shall be first discussed with the Artist The City will
make a good faith effort to contact the Artist and obtain written approval to
proceed with the proposed alteration, modificat�on, or change, such approval
shall not be unreasonably withheld by the Artist If an alteration, modification or
change should occur, the Artist reserves the right to request that the work no
longer be represented as the work of the Artist and to have his/her name
removed from any plaque or other identification of the Artwork provided that the
Artist shall make this request to the City in writmg
12 2 The Artist agrees the City will be granted royalty-free the authority to
incorporate the pro�ect artwork m construction documents for the purposes of
constructing and completing the pro�ect
12 3 The Artist shall have the right to photograph, or contract to have the pro�ect
photographed, durmg and upon completion of construction and to provide these
photographs for publication
12 4 If the Art�st chooses to register the pro�ect and a copyright is registered with
the US Copyright Office, the Artist shall provide the City's contract admirnstrator
with a copy of the application for registration, the registration number and the
effective date of registration Except as provided in this Agreement, the Artist
retams all copyrights in the pro�ect including its preliminary design and mcidental
works created for the Pro�ect
12 5 The Artist hereby grants the City permanent, assignable, non-exciusive
royalty-free permission to make, or cause to be made, photographs and other
two dimensional reproductions and models of the pro�ect for educational, pro�ect
awards, public relations, tourism, arts promotional purposes without payment of a
royalty to the Artist For purposes of this Agreement, the followmg are among
those deemed to be permissible reproductions for the above cited purposes
brochures and pamphlets pertaming to the Engineer and Owner, reproduction in
exhibition catalogues, pro�ect awards, books, slides, photographs, postcards,
posters, and calendars, in art magazmes, art books and art and news sections of
newspapers, in general books and magazines not primarily devoted to art, slides
and film strips, and television On any and ail such reproductions a copyright of
the pro�ect under the United States Copynght Law and credit to the Artist will
appear The Artist agrees that all written references to and reproductions to the
pro�ect shall include the following credit Ime
"This pro�ect was sponsored by the City of Bremerton's 1% For The Arts
program "
SECTION 13. PATENT/COPYRIGHT INFRINGEMENT
13 1 The Artist wdl hold harmless, indemrnfy and defend the City, its officers,
officials, employees and agents, from and against any claimed action, cause or
demand brought against the City, where such action is based on the claim that
informat�on supplied or work performed by the Artist or si.ibcontractor infringes
any patent or copyright or other intellectual property or�ropnetary nght The
Artist wdl be notified promptly in writing by the City of any notice of such claim
13 2 If a copyright is registered, all reproductions made by the City shall contam
a credit to the Artist and a copyright notice substantially in the following form
"'Copyright, Artist's name, ali nghts reserved, dates", m such a manner and
location as shail compiy with the U S Copyright Laws
SECTION 14. DISPUTES
141 Differences, disputes and d�sagreements befinreen the Artist and the City
arising under or out of the Contract will be brought to the attention of the City at
the earliest possible time so that the matter may be settled or other appropriate
action promptly taken The City's contract representative or designee wdl decide
any dispute relating to the quality or acceptability of perFormance or
compensation due the Artist All rulings, orders, mstructions and decisions of the
City's contract representative will be final and conclusive
SECTION 15. MISCELLANEOUS
15 1 No Waiver The parties agree that the excuse or forgiveness of
performance, or wawer of any provisions of the Contract, does not constitute a
waiver of such provision or future perFormance, or pre�udice the right of the
waiving party to enforce any of the provisions of the Contract at a later time
15 2 Tax Payments. The Contractor will pay all applicable federal, state and
local taxes, fees (mcluding licensmg fees) and other amounts
15 3 Personnel Removal The Contractor agrees to remove immediately any of
its subcontractors, employees, agents or representatives from assignment to
perForm services under the Contract upon receipt of a wntten request to do so
from the City's contract representative or designee
15 4 Legal Compliance The Contractor and its subcontractors, employees,
agents and representatives wdi comply with all applicable federal, state and local
laws, rules and regulations m their perFormance under the Contract
15 5 The Artist and/or his/her subcontractors, shall mamtain records in
accordance with generally accepted accounting procedures and other evidence
of ail expenses incurred in the performance of this contract The City and/or
Federal/State officials shall, for the purpose of examination and aud�t, have
access to and be permitted to inspect such records and other evidence of costs
and expenses charged to the C�ty and/or incurred for the Artwork for a period of
six (6) years after termination of contract
15 6 Severability If a court of competent �urisdiction holds any provision of the
Contract to be illegal, mvalid or unenforceable, in whole or in part, the validity of
the remaining provisions will not be affected, and the parties' rights and
obligations wdl be construed and enforced as if the Contract did not contam the
particular provision held to be invalid if any provision of the Contract conflicts
with any statutory provision of the State of Washington, the provision wdl be
deemed inoperative to the extent of the conflict or mod�fied to conform to
statutory requirements
15 7 Entire Agreement The parties acknowledge that the Contract is the
complete expression of their agreement regarding the sub�ect matter of the
contract Any oral or written representations or understandmgs not incorporated
in the Contract are specifically excluded
15 8 Notices Any notices will be effective if personally served upon the other
party or if maded by registered or certified mad, return receipt requested, to the
addresses set out in the contract representative's provision of the Contract
Notice may also be given by facsimde w�th the ongmal to follow by regular mad
Notice will be deemed to be given three days following the date of mading, or
immediately if personally served For service by facsimde, service wdl be
effective at the beginrnng of the next workmg day
CIT� Q`F�BRE�fl�R�'ON ARTIST
re)
� �
(Signature)
By Afidrea L Spencer, AICP
It's Director of Community Development
Date
By Wlliam W Mueller
It's ArtistlContract Representative
Date ! 4" l I—' l f
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EXHIBIT A: DESCRIPTION OF SERVICES
**,�**,�**�******************
CONTRACT FOR PURCHASED ARTWORK
William W Mueller, dba Contemporary Scuipture, (the "Art�st") and City of
Bremerton, (the "City") mutually agrees that the Artist provide for sale specific
artwork for the "Sculpture on Pacific Avenue" (the "Pro�ect")
The Artist shall
• Warrant that the work is an ongmal product of his/her own creative effort
• Guarantee the mtegrity of the matenals and fabncation and installation
techniques for a period of one year after mstallation
• Specify the limit of the edition if an artwork is selected which can be
reproduced as an edition
• Notify City of Bremerton's Arts Commission staff of any changes of address
durmg the pro�ect and foliowmg completion of the pro�ect for as long as the
City shall own the artwork
Implementation & Fabrication
A The artwork wdl consist of See attached proposai ftom artist Exhibit B
B The total budget shall not exceed $7,100 00 for the purchase and installation of
the artwork An approved budget is attached as part of this contract The Artist shall
provide all labor and matenals necessary to produce a finished work of art and
delivery of arlwork
C The Artist shall be responsible for delivery of the arlwork in accordance with the
agreed upon schedule
D The artwork must be completed in accordance with the delivery schedule The
estimated delivery date is November 30, 2011 This date may be amended by
mutual agreement of the Artist and the City
E In the event that the City must make changes to the designated artwork site
durmg construction, the Artist wdl be notified immediately of the proposed changes
The Arts Commission staff and Pro�ect Manager will work with the Artist to find
means of mitigating any negative impacts to the art pro�ect Any changes required of
the Artist shall require a written change order and the increased cost of such change
order in Artist's labor and materials shall be added to the contract amount
F The Artist wdl provide mformation to the City regarding materials and finishes to
be used m the creation of the artworks Substitutions may be requested by the City
in the event that the proposed materials do not comply with health and safety issues,
ADA requirements or fire code ratings
G Upon completion of the artwork and pnor to final payment, the Artist must
1 Make public presentations regarding the artwork as requested by Arts
Commission staff
2 Provide photographic documentation of the artwork at the completion of the
pro�ect Photographic documentation can be submitted in the form of digital
images
3 Submit a maintenance report for the pro�ect to the Arts Commission staff
The report wdl provide detailed instructions regard�ng routme and
extraordinary mamtenance of the artwork, mcluding specifications for any
replaceable units or specialty fabricated parts such as tdes, grates, grouts,
paint colors, or other surface finishes, plantings, or multiple-cast elements
4 Submit an Artist's statement concerrnng the artwork purchased under this
agreement, and
5 Submit the Artist's professional resume
COMPENSATION & PAYMENT SCHEDULE
The Artist wdl be paid a total of $7,100 00 for the scope of work mcluded in this
contract The payments wdl be made as follows
1$7,100 00 upon delivery, receipt of support matenals, and final
acceptance of the artwork
Estimated mstallation date to be determined
Ail Invoices should be maded or delivered to
Pam Bykonen, Staff
City of Bremerton 1% For Arts Program
345 — 6"' Street, Suite 600
Bremerton, WA 98337
The Artist wdl submit the final invoice and other documents as are required by this
Contract within sixty (60) days of completion of the Scope of Service Unless waived
by the City in wnting, failure by the Artist to submit the final invoice and required
documents wdl relieve the City from any and ail liabdity for payment to the Artist for
the amount set forth m such invoice or m any subsequent mvoice