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ARTWORK COMMISSION AGREEMENT PUBLIC ART PROJECT 2004 FIRE STATION MOSCOW, IDAHO This Artwork Commission Agreement Public Art Project 2004 Ml>scrm fire Statkm Moscow, Idaho (hereinafter "Agreement"), is made and entered into this day of 2004, by and between v1iles Pepper. W indance Kinctc Sculpture, Ltd., (hereinafter "ARTIST") and City of Moscow, Idaho, a municipal corporation of the State ofldaho (hereinafter "CITY"). WHEREAS, Moscow Arts Commission (hereinafter "MAC"), an agency of CITY has been charged with responsibility for administration of public art for CITY; and WHEREAS, MAC issued a call for artists who would create a permanent integrated artwork as part of 'v1C>sco" Fire Station #3 (hereinafter "PROJECT"); and WHEREAS, MAC, after completing its selection process, has determined that ARTIST's proposal meets the selection criteria and would best serve the needs of MAC and CITY for the PROJECT; and WHEREAS, ARTIST and CITY wish to enter into an Agreement regarding the PROJECT; NOW THEREFORE, the parties agree as follows: I. Scope of Work A. ARTIST shall complete the design, fabrication and installation of the artwork as described herein by September 30, 2004 and shall perform all tasks as indicated below. B. Description of artwork. The artvvork includes the design. h1brication and instalhHi(\ll of a 22' t:dl kinetic sculpture to be located on the north !avvn of r·ire Station The lo\vcr section. supfK'rt poie. \Vlll be modeled nn the shape of a ftrc and fabricated from \vddt.::d steel. l! is ll.l be am.:lwred on an engineered foundation. The upper section, giving the appearance of spray 1ng \Vater blaėting from the nozzie, \viii he fabricated from aluminum and designed to rotate in the \-\Ind. PROJECT v,ill abo indude a \Veathervan..: 1-ĘJ.bricmed from aluminum to be installed un the the roof at the main entrance to the- building. C Time of Performance. ARTIST shall coordinate commencement and installation of the work with the PROJECT Architect and Deena Heath of MAC and shall have the work in place not later than September 30, 2004. ARTIST shall immediately notify MAC of any delay which occurs or which is anticipated to occur so that arrangements can be made to complete the artwork for the PROJECT as close to the completion date of September 30, 2004 as reasonably possible. Date of delivery and installation may be extended, for a reasonable amount of time, due to circumstances and events beyond control of CITY and/or ARTIST, due to other unforeseen circumstances, or upon written Agreement by the parties, D. Consultation with MAC. If requested by MAC, ARTIST shall, prior to fabrication and/or installation of the artwork, meet with MAC to review the proposed artwork and ensure that it can be maintained over the period of its lifetime without extraordinary expense and that it comports with the design as submitted to MAC prior to the award of the PROJECT to ARTIST. ARTWORK COMMISSION AGREEMENT· HAMILTON INDOOR RECREATION CENTER P.v;r- I 5 2004-04 ---PAGE BREAK--- II. A. Compensation. The total fee for the design, fabrication and installation of art for the PROJECT shall be an amount not to exceed Eighteen Thc)usand and No OndHundreJths Dollars i This amount shall constitute full compensation for all services, materials and fees to be performed or furnished by ARTIST as described in Scope of Work described at I. B. herein. B. Payment shall be made in four installments in the following manner: First payment- Three Thousand and No One/Hundredths Dollars ($3.000.00) paid at rhc time of the execution of this Agreement. Second payment - F'ive Thousand and No Onejf-hmdredths Dollars ($5JHJO.OO) to be the beginning of fabrication. Third payment- Five Thousand and No One/Hundredths Dollars ($5,000.00) upon of the amvork and its acceptance by MAC. Fourth payment - Five Thousand and No One/Hundredths Dollars ($5.000.00) upon completion and installation of the artwork and its acceptance by MAC. lll A. Termination of Agreement. This Agreement may be terminated by ARTIST upon thirty (30) days' written notice, should CITY fail to substantially perform in accordance with its terms through no fault of ARTIST. CITY may terminate this Agreement upon thirty (30) days' written notice without cause and without further liability to ARTIST except as designated by this section. In the event of termination, ARTIST shall be paid for services performed to termination date based upon work completed. All working drawings, plans, maquettes, samples and the like shall become the property of, and shall be surrendered to CITY upon termination of Agreement under this paragraph. B. Termination of the PROJECT. If any portion of the PROJECT covered by this Agreement shall be suspended, abated, abandoned, or terminated, CITY shall pay ARTIST for the services rendered to the date of such suspended, abated, abandoned, or terminated work; the payment to be based, insofar as possible, on the amounts established in this Agreement or, where the Agreement cannot be applied, the payment shall be based upon a reasonable estimate as mutually agreed upon between the two parties as to the percentage of the work completed. IV A. Independent Contractor. The contracting parties warrant by their signature that no employer/employee relationship is established between ARTIST and CITY by the terms of this Agreement. It is understood by the parties hereto that ARTIST is an independent contractor and as such neither he nor his employees, if any, are employees of CITY for purposes of tax, retirement system, social security (FICA) withholding. B. Conflict of Interest. ARTIST covenants that it presently has no interest and shall not acquire any interest, direct or indirect, in the PROJECT which would conflict in any manner or degree with the ARTWORK COMMISSION AGREEMENT- HAMILTON INDOOR RECREATION CENTER ---PAGE BREAK--- performance of its services hereunder. ARTIST further covenants that, in performing this Agreement, it shall employ no person who has any such interest. C. Changes in Regulations. ARTIST is to perform its work under the current federal, state, and local laws and regulations in full force and effect at the date of this Agreement. In the event that ARTIST is requested or directed to perform work, or amend work previously accomplished, due to unforeseen or unanticipated changes or additions to current laws or regulations, such work shall be deemed a change in scope of the work and shall be cause to amend Section!!. of this Agreement in respect to maximum cost by mutually agreeable amounts commensurate with the change in conditions. V. A. CITY'S Responsibility for Special Costs and Rights-olƞWay. CITY shall pay for all costs l(>r obtaining licenses and permits that may be required by local, state, and federal authorities: and shall be responsible for securing necessary land, easements, and rights-of-way where applicable. B. Data of Record. CITY shall make available to ARTIST all technical data of record in CITY'S possession, including maps, surveys, architectural plans and drawings, and other information required by ARTIST relating to this work. VI ARTIST'S Insurance. ARTIST shall maintain automobile insurance and statutory Workmen's Compensation insurance, employer's liability, and comprehensive general liability insurance coverage, all as required by law. VII A. Indemnification. ARTIST waives any and all claims and recourse against CITY, including the right of contribution for loss and damage to persons or property arising from, growing out of, or in any way connected with or incident to ARTIST's performance of this Agreement, except for liability arising out of the sole negligence of CITY or its officers, agents, or employees. Further, ARTIST shall indemnify, hold harmless, and defend CITY against any and all claims, demands, damages, costs, expenses, or liability arising out of ARTIST's performance of this Agreement, except for liability arising out of the sole negligence of CITY or its officers, agents, or employees. B. If CITY is determined to be solely negligent by a final decision in a court of law and such sole negligence by CITY directly results in judgment(s), costs, and/or expenses to ARTIST, then CITY shall reimburse ARTIST for the pm1ion of such judgment(s), costs andior expenses attributed to CITY as a result of such determination of CITY'S sole negligence. C. Risk Of Loss. ARTIST shall take such measures as are reasonably necessary to protect the artwork from loss or damage until ARTIST has completed delivery to CITY of all materials specified herein and ownership is transferred to CITY, which shall occur when delivery and/or installation is complete. ARTIST shall obtain property insurance for loss of the materials paid for by CITY while in ARTIST's possession and control. The risk of loss or damage shall be borne by CITY prior to final acceptance during such periods of time as the partially or wholly completed artwork is in the custody, control or supervision of CITY or its agents. VIII. ARTW(JRK COMMISSION AGREEMENT- HAMILTON INDOOR RECREATION CENTFI-: ---PAGE BREAK--- A. Copyright and Publication of Materials. ARTIST shall retain the copyright and all other rights in and to the artwork, provided that C ITY is hereby granted an irrevocable license to graphically reproduce (through photography or otherwise) the image of the artwork without C ITY cost expense or payment to ARTIST, including but not limited to, the artwork proposal and all preliminary studies, models and maquettes thereof that have been delivered to and accepted by the C ITY, and to authorize third parties to graphically reproduce (through photography or otherwise) any and all of the same, as are desired by CITY, for municipal education, public information, etc.) purposes. On each such reproduction, ARTIST shall be acknowledged, using designations provided by ARTIST, to be the creator of the original artwork thereof, provided that reproductions of any preliminary studies, models and maquettes shall not be identified as or represented to be the finished ruiwork. The rights granted by this provision shall survive the expiration or earlier termination of this Agreement. B. CITY agrees to hold harmless ARTIST for any use of materials developed under this Agreement beyond the uses normally intended by the parties for the PROJECT. C. CITY agrees to make a reasonable effort to notify ARTIST of CITY'S intent, if any, to use or adapt materials developed for the PROJECT following completion of the PROJECT. IX. Non-discrimination. ARTIST shall not discriminate against any employee or applicant for employment on the basis of race, color, religion, creed, political ideals, sex, age, marital status, physical or mental handicap, or national origin. X. Modification and Assignability of Agreement. This Agreement contains the entire Agreement bet\\ecn the parties, and no statements, promises, or inducements made by either party, or agents of either pariy. are valid or binding unless contained herein. This Agreement may not be enlarged, modified, or altered except upon written Agreement signed by the parties hereto. ARTIST may not subcontract or assign his rights (including the right to compensation) or duties arising hereunder without the prior written consent and express authorization of CITY. Any such consultant, subcontractor or assignee shall be bound by all of the terms and conditions of this Agreement as if named specifically herein. XI Costs and Attorney Fees. In the event either paJiy incurs legal expenses to enforce the terms and conditions of this Agreement, the prevailing party is entitled to recover reasonable attorney's fees and other costs and expenses, whether the same are incurred with or without suit. XII Jurisdiction and Venue. It is agreed that this Agreement shall be construed under and governed by the laws of the State of Idaho. In the event of litigation concerning it, it is agreed that proper venue shall be the District Court of the Second Judicial District of the State of Idaho, in and for the County of Latah. ARTWORK COMMISSION AGREEMENT" HAMILTON INDOOR RECREATION CENTER ---PAGE BREAK--- Xlll. Binding on Successors. CITY and ARTIST each bind themselves, their partners, successors, assigns, and legal representatives to the other parties to this Agreement and to the partners, successors, assigns, and legal representatives of such other parties with respect to all covenants of this Agreement. XIV. A. CITY'S Representatives. CITY shall designate a representative authorized to act in behalf of CITY. The authorized representative shall examine the documents of the work as necessary, and shall render decisions related thereto in a timely manner so as to avoid unreasonable delays. B. Communication with CITY shall be to Deena Heath, Moscow Arts Commission (MAC), 206 East 3'd Street, Moscow, Idaho, 83843, email dheathwici.moscow.id.us. C. Communication to ARTIST shall be to Miles Pepper. Windancc Kinetic Sculpture !.td. i 505 Douglas Drive. Pullman. WA 99!63, (509) 334-6374. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date indicated above. ARTIST- Miles Pepper STATE On this C day of/) , 2004. before me, the undersigned, a Notary in and for said State, personally appeart!d Miles Pep r, known to me to be the person whose name is subscribed to the foregoing Agreement and acknowledged to me that he executed the same in his capacity as ARTIST. ARTWORK CoMMISSION AGREEMENT- HAMILTON INDOOR RECREATION CENTER PAG!: 5 OF 5