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HomeMy WebLinkAbout5078Contract Number: Vendor. Sub�ect: Department: File Class: Begin Date: End Date: Review Date: Vault Date: 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 � cv c«� 1-,� ��ll�r � `� S� c�`'�c.�`'`"' c`° `'''1 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 ' •� • . • • '- - -• • • � / /_��+'` _ ; �;,/� �/,/.'il ?�In! . . - � '� � • 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