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ARTWORK COMMISSION AGREEMENT PUBLIC ART PROJECT 2011 WREN WELCOME GARDEN, MOSCOW, IDAHO THIS ARTWORK COMMISSION AGREEMENT PUBLIC ART PROJECT 2011 WREN WELCOME GARDEN, MOSCOW, IDAHO (hereinafter "Agreement"), is made and entered into this day of "Feb , 2012, by and between Robert M. Homer (hereinafter "ARTIST") and City of Mosco , Idaho, a mumc1pal corporatiOn of the State of Idaho (hereinafter "CITY"). WHEREAS, CITY issued a call for artists who would create a permanent all-weather sculptural Artwork as part of The Wren Welcome Garden (hereinafter "PROJECT"); and WHEREAS, CITY, after completing its selection process, has determined that ARTIST's proposal meets the selection criteria and would best serve the needs of CITY for PROJECT; and WHEREAS, ARTIST and CITY wish to enter into an Agreement regarding 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 8, 2012 and shall perform all tasks as indicated below. B. Description of Artwork. The Artwork (Helio-terra) includes the design, fabrication and installation of an approximately twenty foot (20') rammed earth construct that depicts certain solar events specific to Moscow, Idaho. More specifically, the construct will be comprised of rammed earth (utilizing Palouse soils) in approximately five inch lifts in the general shape of a seed with a concrete base to which it will be attached. Construction methods include forming rammed earth within pre-fabricated forms transported onto the Wren Welcome Garden site. Such forms will aid in the on-site construction of the above ground portion of the construct. The foundation of the Artwork will be reinforced concrete. The walls will be fully reinforced with steel rebar and engineered to withstand forces as required by local Code. The rammed earth construct will be sealed to prevent staining and to ensure an extended life. C. Time of Performance. ARTIST shall coordinate commencement and installation of the Artwork with CITY Arts Director, Kathleen Bums, and shall have the Artwork in place not later than September 8, 2012. ARTIST shall immediately notify CITY of any delay which occurs or which is anticipated to occur so that arrangements can be made to complete the Artwork for PROJECT as close to the completion date of September 8, 2012 as reasonably possible. Date of delivery and installation may be extended, for a reasonable amount of ARTWORK COMMISSION AGREEMENT- WREN WELCOME GARDEN (HORNER) PAGE 1 OF 10 2ol2· OL{ ---PAGE BREAK--- 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 CITY. If requested by CITY, ARTIST shall, prior to fabrication and/or installation of the Artwork, meet with CITY 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 CITY prior to the award of PROJECT to ARTIST. II. A. Compensation. The total fee for the design, fabrication and installation of art for PROJECT shall be an amount not to exceed Thirty Five Thousand Dollars ($35,000). 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 LB. herein. B. Payment shall be made in five installments in the following manner: First payment - Eight Thousand Seven Hundred Fifty Dollars 750). Payment due at the time of the execution of this Agreement, for purposes of supporting ARTIST's design and preparation of form work fabrication and purchase of design and other materials. Second payment - Eight Thousand Seven Hundred Fifty Dollars 750) to be paid at the beginning of fabrication construction of the rammed earth forms) to support ARTIST's costs of production and materials. Payment due upon fabrication subcontractor's written affirmation to CITY that production of forms has commenced, accompanied by a written agreement between ARTIST and subcontractor regarding fabrication. Third payment - Four Thousand Three Hundred Seventy Five Dollars ($4,375). Payment due after the concrete base of Artwork is poured on site and first lift of rammed earth materials in prefabricated forms is completed, as verified by CITY. Fourth payment- Four Thousand Three Hundred Seventy Five Dollars ($4,375). Payment due when rammed earth fill reaches twelve feet (12') in height as measured from concrete base, as verified by CITY. Fifth payment- Eight Thousand Seven Hundred Fifty Dollars ($8,750). Payment due upon completion installation of the Artwork and its final acceptance by CITY. III. 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. ARTWORK AGREEMENT- WREN WELCOME GARDEN (HORNER) PAGE20F 10 ---PAGE BREAK--- 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 PROJECT. If any portion of 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 PROJECT which would conflict in any manner or degree with the 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 II. 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-of-Way. CITY shall pay for all costs for 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 Artwork. ARTWORK COMMISSION AGREEMENT- WREN WELCOME GARDEN (HORNER) PAGE30F 10 ---PAGE BREAK--- VI. Insurance. A. Insurance Required. ARTIST and any subcontractor or agent shall maintain automobile insurance and statutory workers compensation insurance, employer's liability and comprehensive general liability insurance coverage, all as required by law. B. General Liability. ARTIST shall provide, at ARTIST's expense, general liability insurance with limits of not less than One Million Dollars ($1,000,000) per occurrence, combined single limit bodily injury and property damage, covering ARTIST's work in fabricating, transporting, and installing the Artwork, which shall be in force for no less than fifteen (15) days prior to ARTIST's commencing work, until completion and final acceptance of the Artwork by CITY. C. Worker's Compensation and Employer Liability Insurance. Worker's compensation insurance shall be provided to cover any employees involved in producing the Artwork in such amounts required by Idaho law for all work performed in Idaho or in such amounts as may be required by Idaho law. D. CITY as Additional Insured and Term of Insurance. On all insurance policies required under this Agreement other than auto, CITY shall be named as an additional insured and the policy shall provide it may not be cancelled or reduced in coverage, except upon thirty (30) days prior written notice to CITY. Any cancellation of insurance, other than auto, without appropriate replacement in the amounts and terms set forth herein, shall constitute grounds for termination of this Agreement. Each type of insurance required by this Agreement VI. shall be in force for no less than fifteen (15) days prior to ARTIST's commencing the PROJECT until completion and final acceptance of the Artwork by CITY. E. ARTIST to provide Certificates of Insurance to CITY. ARTIST shall insure that CITY is provided a Certificate oflnsurance for each insurance policy required by this Agreement. F. Contractors and Subcontractors. ARTIST shall insure that all contractors, subcontractors and agents of ARTIST provide the insurance required herein and that each such contractor, subcontractor and agent shall provide CITY a certificate of insurance and shall name CITY as an additional insured on PROJECT, and shall provide documentation of any agreement between ARTIST and contractor(s)/subcontractor(s) relative to PROJECT. 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. ARTWORK COMMISSION AGREEMENT- WREN WELCOME GARDEN (HORNER) PAGE40F 10 ---PAGE BREAK--- 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 portion of such judgment(s), costs and/or 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. A. Copyright and Publication of Materials. ARTIST shall retain the copyright and all other rights in and to the Artwork, provided that CITY is hereby granted an irrevocable license to graphically reproduce (through photography or otherwise) the image of the Artwork without CITY 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 CITY, 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 Artwork. The rights granted by this provision shall survive the expiration or earlier termination of this Agreement. B. Ownership. The Artwork shall be a limited edition of one unique, singular rammed earth construct as described herein. ARTIST shall not reproduce the Artwork elsewhere and shall not utilize the prefabricated forms for forming or shaping a similar artwork elsewhere ARTIST warrants that, unless otherwise set forth in writing, the Artwork will be an original, in that the Artwork owes its creation or origin to ARTIST and is not the product of copying another's work in any manner. Furthermore, ARTIST warrants and represents that ARTIST has not previously published the Artwork which is transferred by and the subject of this Agreement and that ARTIST is the sole owner of all rights therein. Except as provided in this Agreement, upon final acceptance and acceptance of Artwork, delivery and installation, and final payment to ARTIST, CITY shall own the Artwork. ARTIST hereby expressly waives any right, title or interest in the Artwork created for the Project. ARTIST understands that this waiver includes waiver of the exclusive rights of reproduction, adaptation, publication, performance and display. C. CITY agrees to hold harmless ARTIST for any use of materials developed under this Agreement beyond the uses normally intended by the parties for PROJECT. ARTWORK COMMISSION AGREEMENT- WREN WELCOME GARDEN (HORNER) PAGES OF 10 ---PAGE BREAK--- D. CITY agrees to make a reasonable effort to notify ARTIST of CITY's intent, if any, to use or adapt materials developed for PROJECT following completion of PROJECT. IX. Public Education. At no additional cost, ARTIST agrees to participate in public meetings, presentations, one "Meet the Artist" event and the public dedication of the project, under such terms and conditions as ARTIST and CITY shall agree. CITY shall make good faith efforts to schedule such meetings, presentations, or events at times available for ARTIST to be present in person in Moscow, Idaho. X. Project Closeout. Upon delivery and installation of the Artwork, ARTIST shall furnish CITY a full release and waiver of liens, together with such releases and waivers from any subcontractor who furnished goods for or performed services for the Artwork. ARTIST shall also fill out a conservation report and submit a maintenance plan to CITY, including specific recommendations for maintenance and repairs, as well as slides and/or photo and written documentation of fabrication and installation of the Artwork to assist in maintenance, repair, and public education. XI. Repairs, Maintenance, or Alterations. A. ARTIST shall not be responsible or liable for any damage to the Artwork, its surfaces, or environment caused by personnel of CITY or its employees or agents, visitors, members of the general public or others beyond the control of ARTIST. B. ARTIST shall not be responsible or liable for any damages to the Artwork caused by extremely adverse weather conditions, acts of God, vandalism, or other acts abnormal to the site beyond the control of ARTIST. C. CITY may provide basic maintenance, restoration and repairs as it deems necessary. CITY will assume cost for repairs upon expiration of the one year warranty period set forth in this Agreement. Whenever practical and fiscally possible, ARTIST shall be given an opportunity to perform and/or act as consultant for the repair or restoration of the Artwork, for which ARTIST shall be entitled to reasonable compensation, provided CITY directs the repair or restoration. In the event that the Artwork is damaged or destroyed, CITY, in its sole discretion, may restore the Artwork, subject to receipt of any insurance proceeds and other funds sufficient for the repair or restoration. XII. Warranty. Upon final acceptance of the Artwork, ARTIST warrants that the Artwork shall be free from defects in materials and workmanship, including inherent vice. ARTIST shall, for a period of one year from final acceptance of the Artwork by CITY, correct any such defects at ARTIST's own expense. "Inherent vice" refers to a quality within the material or materials that comprise the Artwork, which, either alone or in combination with other materials used in the ARTWORK COMMISSION AGREEMENT- WREN WELCOME GARDEN (HORNER) PAGE60F 10 ---PAGE BREAK--- Artwork or reacting to the environment, results in the tendency of the Artwork to destroy itself. Upon written notification of a defect in materials or workmanship, ARTIST shall have sixty (60) days to commence repairs. ARTIST shall conclude the repairs within a reasonable time. XIII. Changes to the Work. A. Material Changes Prior to Final Design Approval. ARTIST may make material changes prior to final Acceptance (including minor changes in the Artwork's material, color, size, and relative scale of the Artwork from the approved proposal) but only after ARTIST has given written notice of such proposed changes to CITY and CITY approves such changes in writing. B. Material Changes After Final Acceptance of the Artwork. 1. If any material change occurs to the Artwork subsequent to final Acceptance (whether such change is an intentional act of a third party, an accident, or an act of nature), including but not limited to a change to the exterior surface of the Artwork or the interrelationship or relative locations of the parts of the Artwork, CITY reserves the right to determine, after consultation with an independent, professional art conservator, if, when and how any repair and restoration to the Artwork can be made, and the nature, scope and anticipated cost of any such repair or restoration. CITY reserves the right to contract with a conservator, rather than ARTIST, to implement any such repair(s) or restoration. 2. In the event CITY elects to pursue such repair or restoration, CITY will provide written notice to ARTIST, which notice shall: a. Explain, in detail, the nature of the change to the Artwork; b. Include one or more drawings, photographs, maps, plans, and other documentation to accurately illustrate such change for the information of ARTIST; c. Outline in detail the recommendations of the conservator, and the proposed repair or restoration means and methods; and, d. Request that ARTIST respond to such recommendations and proposed repair, within thirty (30) days of such notice. 3. ARTIST, within thirty (30) days of the written notice subsection 2. above, shall respond in writing specifying, in detail, ARTIST's objections (if any) to the proposed repair or restoration and the reasons for such objection(s). The failure of ARTIST to provide such notice to CITY within thirty (30) days of such notice shall constitute ARTIST's waiver of all objections to the repair or restoration of the Artwork (including means and methods) the CITY described in its notice to ARTIST. ARTWORK COMMISSION AGREEMENT- WREN WELCOME GARDEN (HORNER) PAGE 7 OF 10 ---PAGE BREAK--- 4. ARTIST shall not unreasonably withhold approval for any reasonable repair or restoration of the Artwork outlined by CITY in the notice provided herein. If ARTIST has reasonable objections to the planned repair or restoration of the Artwork, CITY will confer with ARTIST to arrive at an agreed-upon solution for the repair or restoration. XIV. Relocation, Removal or Deaccession of the Artwork. A. CITY reserves the right to manage its buildings, facilities and public sites for public purposes, and in doing so, may determine that it is necessary to relocate or remove the Artwork and/or modify the site in/on which it is located. CITY will not relocate or remove the Artwork and/or substantially modify the site in/on which it is located without first notifying ARTIST of the proposed relocation or removal and attempting to reach agreement with ARTIST regarding the future appearance or location of the Artwork. B. ARTIST shall not unreasonably withhold approval of the relocation or removal of the Artwork from the site on which it is located or the modification of such location, as proposed by CITY in its notice to ARTIST pursuant to this subsection. C. In the event that CITY decides to deaccession the Artwork, ARTIST shall have the first right of refusal to purchase their work, providing it is not integrated into a larger piece or a structure, and/or can be removed without destruction of the Artwork. D. In the event CITY relocates, removes or otherwise modifies the Artwork, either with or without ARTIST's written permission and ARTIST gives written notice to CITY requesting that ARTIST's name be removed from the Artwork, CITY will no longer designate the Artwork as the work of ARTIST. E. Except as provided herein, CITY will not relocate, remove or deaccession the Artwork without written authorization from ARTIST, who shall not unreasonably withhold such authorization. F. For purposes of this Agreement, no modification of the Artwork that results from the passage of time or the inherent nature of the materials used in the Artwork shall constitute a modification for which ARTIST may claim relief or any remedy from CITY. In addition, no modification of the Artwork that is the result of conservation or of its public presentation (including but not limited to lighting and placement) shall constitute a modification that is prejudicial to ARTIST's honor or reputation or for which ARTIST may claim relief or any remedy from CITY unless such modification is the direct result of CITY's gross negligence. G. The action of any governmental entity in the exercise of its governmental powers (including, but not limited to, the issuance of any permit for the redevelopment of land or any structure thereon other than action by CITY on the specific site of the Artwork) shall not constitute a modification of the Artwork for which ARTIST may claim damages or any other form of relief from CITY. ARTWORK COMMISSION AGREEMENT- WREN WELCOME GARDEN (HORNER) PAGES OF 10 ---PAGE BREAK--- H. By executing this Agreement, ARTIST consents to the installation of the Artwork at the location set forth in this Agreement. ARTIST acknowledges that such installation may subject the Artwork to destruction, distortion, mutilation or other modification because of its removal from that location. XV. 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. XVI. Modification and Assignability of Agreement. This Agreement contains the entire Agreement between the parties, and no statements, promises, or inducements made by either party, or agents of either party, 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. XVII. Costs and Attorney Fees. In the event either party 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. XVIII. 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. XIX. Binding on Agents, Subcontractors, and Successors. CITY and ARTIST each bind themselves, their partners, agents, subcontractors, successors, assigns, and legal representatives to the other parties to this Agreement and to the partners, agents, subcontractors, successors, assigns, and legal representatives of such other parties with respect to all covenants of this Agreement. XX. A. CITY's Representative. Communication with CITY shall be to Kathleen Burns, Moscow Arts Director, 206 East 3rd Street, Moscow, Idaho, 83843, email kburnsC{i)ci.moscow.id.us. Kathleen Burns 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. ARTWORK COMMISSION AGREEMENT- WREN WELCOME GARDEN (HORNER) PAGE 90F 10 ---PAGE BREAK--- B. Communication to ARTIST shall be to Robert M. Homer, 753 29th Ave., Port Townsend, Washington, 98368, (765) 215-5850; email bahbhomerrmyahoo.com. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date indicated above. ARTIST- Robert M. Homer By: Rob. Homer STATE OF WASHINGTON coUNTY oF\ Mer50Y'-- CITY- City of Moscow, Idaho on this day of rFJ. , 2012, before me, the undersigned, a Notary in and for said State, personally appeare obert M. Homer, 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. IN WITNESS WHEREOF, I h day and year hereinabove written. hereunto set my hand and affixed my official seal the ARTWORK COMMISSION AGREEMENT- WREN WELCOME GARDEN (HORNER) PAGE IOOF 10