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ARTWORK COMMISSION AGREEMENT PUBLIC ARTS PROJECT 2010 EAST CITY PARK BICYCLE RACKS This Artwork Commission Agreement Public Arts Project 201 0 East City Park Bicycle Racks (hereinafter "Agreement"), is made and entered into this 12. day of VV\avclr\ , 2010, by and between Nethaniel Ealy individually and as sole proprietor, 618 West Street, Moscow, Idaho, 83843 (hereinafter "ARTIST") and City of Moscow, Idaho, a municipal corporation of the State of Idaho, 206 East Third Street, Moscow, Idaho, 83843 (hereinafter "CITY"). WHEREAS, Moscow Arts Director, Kathleen Burns (hereinafter "CITY"), has been charged with responsibility for administration of public art for CITY; and WHEREAS, CITY has agreed with ARTIST to create a permanent integrated artwork as part of the installation of custom-made bicycle racks to be located at East City Park in Moscow, Idaho as generally depicted in the Attached Exhibits through (hereinafter "PROJECT"); and WHEREAS, CITY, after completing its selection process, has detennined 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 a!,rree as follows: I. Scope of Work A. ARTIST and CITY shall complete the design, fabrication and installation of the Artwork as described herein by June 15, 2010 and shall perform all tasks as indicated below. B. Description of Attwork. General. Artwork includes the design, fabrication and installation of two bicycle rack installations which adhere to all specified equipment and surfacing and meet Consumer Product Safety Commission guidelines for public playgrounds, American Society for Testing and Materials standards, and Americans With Disabilities Act (ADA) standards, as detennined by CITY. CITY will confinn that Artwork complies with the above Codes and standards prior to final acceptance of Artwork. Location of Artwork shall be in the general area agreed upon by ARTIST and CITY as shown in Attachment "Artwork" is more particularly described as follows: Design No. 1. A four pat1 bicycle rack which spells the word "bike" and shall be made out of one and three quarters inch (I pipe capped at the top. Design No. 1 ARTWORK Cm!MISSION AGREEMENT- EAST CITY PARK BICYCLE RACKS PAGE 1 OF 7 2010· 12.. ---PAGE BREAK--- shall conform to the basic design illustrated in Attachment Artwork shall be installed by ARTIST by bolting it to cured concrete that is furnished and installed by CITY as described in the "Specifications for Design'' in the ''Call for Artists". Design No. 2. A design of five human figures not to exceed the approximate height of fmiy seven and one half inches (47 when installed and shall be made out of one inch (1 diameter solid steel stock. Such five figures shall be free standing and shall not be placed in a row but rather shall be grouped together in an aesthetically pleasing configuration acceptable to CITY. Such Design No. 2 shall confonn to the basic design illustrated in Attachment Design No. 2 shall be installed by ARTIST by "wet-setting" it in wet concrete furnished and poured by CITY. Once ARTIST has set and braced each piece, the installation shall be considered complete. ARTIST is not liable for damage done to Artwork or concrete once A1iwork is set and braced. C. Time of Perfonnance. ARTIST shall coordinate commencement and installation of the work with Kathleen Burns and shall have the work in place and accepted by CITY no later than June 15, 2010. 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 and installation as close to the PROJECT completion date of June 15, 2010 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 CITY. If requested by CITY through its representative, Kathleen Burns, 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 Four Thousand Dollars ($4,000). 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 at LB. herein. B. Payment shall be made in three installments in the following manner: First payment - One Thousand Three Hundred Thitiy Three Dollars ,333) paid at the time of the execution of this Agreement. Second payment - One Thousand Three Hundred Thirty Three Dollars ,333) to be paid at the delivery of the fabricated figures (pre-powder coating) to CITY. ARTWORK COMMISSION AGREEMENT- EAST CITY PARK BICYCLE RACKS PAGE20F7 ---PAGE BREAK--- Final payment - One Thousand Three Hundred Thirty Four Dollars ,334) upon final installation of Artwork on site and acceptance of same by CITY. Ill. A. Tennination of Agreement. This Agreement may be tenninated by ARTIST upon thirty (30) days' written notice, should CITY fail to substantially perform in accordance with its tenns through no fault of ARTIST. CITY may tenninate this Agreement upon thi11y (30) days' written notice without cause and without further liability to ARTIST except as designated by this section. In the event of tennination, ARTIST shall be paid for services perfonned 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. Tem1ination of PROJECT. If any pot1ion of PROJECT covered by this Agreement shall be suspended, abated, abandoned, or tenninated, CITY shall pay ARTIST for the services rendered to the date of such suspended, abated, abandoned, or tetminated 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 tenns of this AbJTeement. It is understood by the pat1ies 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 perfonnance 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 cunent 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 cunent laws or regulations, such work shall be deemed a change in Scope Of Work and shall be cause to amend Section 11. of this Agreement in respect to maximum cost by mutually agreeable amounts commensurate with the change in conditions. V. ARTWORK COMMISSION AGREI'MENT- EAST CIIY PARK BICYCLE RACKS PAGE 3 OF 7 ---PAGE BREAK--- A. CITY's Responsibility for Special Costs and Rights-of-Way. CITY shall pay for all costs for obtaining licenses and pennits 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 infonnation required by ARTIST relating to this Artwork. VI. A. Warranty. All required public improvements once constructed and accepted by CITY for ownership and maintenance shall remain free of defects in materials and workmanship for a period of not less than one year following the date of CITY's written acceptance of such required public improvements warranty period). B. ARTIST shall be responsible for coiTecting any and all deficiencies which occur within the one ( 1) year wmTanty period. VII. 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. VIII. A. Indemnification. ARTIST waives any and all claims and recourse against CITY, including the right of contribution for loss and damage to persons or propeiiy 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 perfonnance of this Agreement, except for liability arising out of the sole negligence of CITY or its officers, agents, or employees. B. If CITY is detennined to be solely negligent by a final decision in a comi 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 detennination 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 ART\VORK Cm!MISSION AGREEMENT- EAST C!n' PARK BICYCLE RACKS PAGE 4 OF 7 ---PAGE BREAK--- 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. IX. 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 the 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. CITY agrees to hold hannless ARTIST for any use of materials developed under this Agreement beyond the uses normally intended by the parties for PROJECT. C. CITY agrees to make a reasonable effo11 to notify ARTIST of CITY's intent, if any, to use, relocate, reconfigure, or adapt materials developed for PROJECT following completion of PROJECT, and such shall occur at no fm1her expense to CITY. X. 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, genetic infonnation, or national origin. XI. 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 tenns and conditions of this Agreement as if named specifically herein. ARTWORK COMMISSION AGREEMENT- EAST CITY PARK BI('YCLr RACKS PAGI: 5 OF 7 ---PAGE BREAK--- XII. Costs and Attorney Fees. In the event either patty incurs legal expenses to enforce the tenns 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. XIII. Jurisdiction and Venue. It is af,'Teed that this Agreement shall be construed under and governed by the laws of the State of Idaho. In the event of litigation conceming 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. XIV. 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. XV. A. CITY's Representatives. CITY hereby designates Kathleen Bums, CITY Atis Director, as its representative who is authmized 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 Kathleen Bums, CITY Arts Director, 206 East 3rd Street, Moscow, Idaho, 83843, email [EMAIL REDACTED]. C. Communication to ARTIST shall be to Nethaniel Ealy, 618 West Street, Moscow. Idaho, 83843, (208) 596-1181. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date indicated above. ARTIST -City of Moscow, Idaho / AR"I WORK COMMISSION AGREEMENI- EAST CITY PARK BICYCLE RACKS PAGE 6 OF 7 ---PAGE BREAK--- STATE OF IDAHO ) ss. County of Latah ) ATTEST On this lCD""'" day of Wl£h'ck\ , 2010, before me, the undersigned, a Notary in and for said State, personally appeared Nethaniel Ealy, 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 have hereunto set my hand and affixed my official seal the day and year hereinabove written. Ag1·cemrnt l