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HomeMy WebLinkAboutRichard C. Thomas - Commissioning of Art Work - 12/5/2005 Waterloo Center for the Arts Standard Agreement for Commissioning of Art Work THIS AGREEMENT,dated November 8, 2005, is made by and between the City of Waterloo, hereinafter called the "City," acting by and through the Waterloo Center for the Arts, hereinafter called the "WCA," and "Waterloo Cultural & Arts Commission"hereinafter called the "Agency," and Richard C. Thomas,hereinafter called the "Artist," whose permanent address is 415 Wendell Court,Waterloo, IA 50703,phone#504-237-5181. WHEREAS funds have been allocated and otherwise made available by the City for the commission of Work created by the Artist and the total artist fee is$20,000;and WHEREAS the Artist was selected by the Public Art Committee of the Waterloo Cultural &Arts Commission for this project; and WHEREAS the Artist wishes to create an original Work in a professional manner for the City; NOW THEREFORE,based upon their mutual promises and consideration,the parties agree as follows: 1. DESCRIPTION OF WORK. The Artist will create and personally execute an original painted mural(Work), measuring not less than 1,000 square feet. The Work may be designed as one large composition, or in distinct individual parts, as dictated by the selected site and design considerations. 2.LOCATION. The mural will be designed for presentation in an outdoor location in downtown Waterloo, final site selection yet to be determined. 3. CHANGES IN DESIGN. The Artist shall create the Work in accordance with an approved design. Recognizing that the change in scale from conceptual design sketches to full scale may require adjustments,the Artist has the right to make minor changes in the Work that are structurally and aesthetically necessary.Any change in scope, design, or material that significantly alters the original and approved concept and design of the Work or affects installation, scheduling, site preparation, or maintenance for the Work shall require the prior review and approval of the WCA. 4.MATERIALS AND INSTALLATION. The WCA shall make arrangements to provide materials and installation services, and will arrange for transportation of materials to the artist's studio(to be located within Waterloo,IA)and the finished work from said studio to the chosen installation site. All acquisition of materials will be subject to prior approval by WCA. 5.PRICE AND PAYMENT SCHEDULE. As payment for the services of the Artist and for the completed Work, the WCA will pay the Artist a total of$20,000 which shall constitute full compensation to the Artist for the creation of the Work and for costs incurred by the Artist including,but not limited to fees, labor of the Artist and the Artist's assistants, studio and operating costs applicable to this project,and travel costs. The money shall be paid as follows: $4,500 Upon execution of this Agreement by the WCA. $4,500 Upon completion of one third of the required creation of the Work. $4,500 Upon completion of two thirds of the required creation of the Work. $6.500 Upon full completion and tender of finished Work and documentation materials; and official acceptance of the Work by the Agency. The Artist shall submit a billing or invoice to the WCA when each payment is due. Documentation may be requested in order to substantiate progress with the Work. If the WCA disagrees with the Artist's estimation of the stage of 2 completion of the Work,the WCA must notify the Artist within fourteen working days of receipt of billing or be foreclosed from raising objection to the Artist's estimation.The WCA shall have the sole authority to determine when the Work has reached a given stage of completion. 6. INSTALLATION AND TIME SCHEDULE. The Artist shall tender the completed Work on or before May 15,2006. The Artist may request an extension of the completion date from the WCA no later than 30 days prior to the delivery date. If the extension is granted,new delivery and installation dates shall be agreed upon in writing and such changes shall not affect any other provisions or sections of this Agreement. 7. OFFICIAL ACCEPTANCE OF WORK. Official acceptance of the Work will occur when the Artist has complied with Section 10 of this Agreement and when the Agency notifies the WCA that the Work has been completed according to the terms of this Agreement.The WCA agrees to forward final documentation materials and request a letter of acceptance from the Agency within 14 days after receipt of these materials from the Artist.The Agency will so signify and take official ownership by the WCA by sending this letter of acceptance of the Work to the WCA. 8. INSPECTION AND REVIEW. The Agency and the WCA reserve the right to review the Work while in the process of execution and, at reasonable times,to require and receive progress reports from the Artist. 9. ARTIST AS INDEPENDENT CONTRACTOR. A)The Artist agrees to perform all Work under this Agreement as an independent contractor and not as an agent or employee of the State. Any and all employees of the Artist engaged in the performance of any Work or services required by the Artist under this Agreement shall be considered employees of the Artist only.The Artist shall furnish all supervision, labor, equipment,insurance, and other incidentals needed to complete this Agreement. B)Commercial Liability Insurance: The Artist shall obtain, at his expense, combined single limit coverage of at least$1,000,000 on liability insurance for product liability and public liability coverage. C)Scope of Insurance: The Artist shall provide an insurance certificate indicating this coverage, countersigned by an insurer licensed to do business in Iowa, covering the period of the Work including notice to the WCA and the Agency if the insurance is cancelled. 10.DOCUMENTATION AND RECORDS. Upon installation of the Work, and before final payment shall be made,the Artist shall furnish the WCA with a full set of plans and design drawings and other documentation relevant for interpretation,maintenance and repair of the Work. 11. PUBLIC NOTICE. The Agency shall, at its expense,prepare and install at the Site,pursuant to the written instructions issued by the WCA upon installation of the Work,a plaque identifying the Artist, the title of the Work, and the year of completion, and shall reasonably maintain such notice in good repair against the ravages of time, vandalism and the elements. 12.WARRANTIES. The Artist warrants that the Work is the property of the Artist only,that the Work is the original product of the Artist's own creative efforts,that the Work is an edition of one and that there are no copies. The Artist agrees that this Work shall be a unique example of the Artist's Work and the Artist shall not anywhere else produce such Work for commercial purposes, nor allow others to do so, without the express written consent of the WCA and the Agency. Copies of the Work can be made by the Artist for the purposes of display in an exhibition of the Artist's work or for inclusion in applications for further commissions provided the following credit is given: "Original owned by Waterloo Center for the Arts". The Artist warrants that the execution and fabrication of the Work will be performed in a professional manner and that the Work, as fabricated and installed, will be free of defects in material and workmanship, including any defects or qualities which cause or accelerate deterioration of the Work.The Artist shall guarantee and maintain the Work from faults of material and workmanship for a period of three years after the acceptance date. The Artist warrants that reasonable maintenance of the Work will not require procedures substantially in excess of those described in the maintenance instructions submitted in the concept/design proposal for the Work previously approved. 3 13.ASSIGNMENT OF WORK. The Work and services required of the Artist under this Agreement are personal and shall not be assigned, sublet, or transferred.The provisions of this section of the Agreement shall not prohibit the Artist from employing or subcontracting qualified personnel who shall work directly under the Artist's supervision. 14.INDEMNITY AND LIABILITY. The Artist does release and agree to save and hold harmless the State, the City of Waterloo,the Agency, and the WCA and their officers, members, agents, and employees from any and all causes of action, suits at law or equity, or demands or claims, or from any liability of any nature arising out of the construction and creation of the Work and from any obligations made by the Artist or the Artist's agents and/or employees. All risks for damages,theft,vandalism, and Acts of God to the Work are the responsibility of the Artist during any and all operations, including creation,transit and storage by the Artist,which take place on other than the permanent location or the Agency storage site.The Artist may provide a policy of insurance,covering all risks and hazards against any damage to or loss of the Work while it is being made, transported,.or stored by the Artist. All risks for damages, theft, vandalism, and Acts of God to the Work are the responsibility of the Agency during any and all operations which take place at the permanent location of the Work during and after its installation, including installation and/or maintenance of the Work,except those damages caused by the Artist or the Artist's employees or claims which may occur as a result of the Artist's breach of warranties provided in Section 12, which damage shall be the responsibility of the Artist. 15.ALTERATION OF THE WORK.If any changes, alterations or destruction occur to the Work after it has been completed and installed, including any change in the interrelationship or relative locations of parts of the Work,the Work will no longer be represented as the Work of the Artist upon receipt of a written request to that effect from the Artist. 16.ALTERATION OF THE SITE. The Agency shall notify the WCA of any proposed alteration of the Site that would affect the intended character and appearance of the Work. The WCA may consult with the Artist if deemed appropriate in the planning and execution of any such alteration and shall make a reasonable effort to maintain the integrity of the Work. Alteration of the Site could include,but shall not be limited to, lighting for the Work, street furniture, including benches, lights, signage,trash receptacles,landscaping materials such as trees and shrubs and ground cover, organic and inorganic. The provisions in this section of the Agreement do not give the Artist any right of action against the State, the City of Waterloo, the WCA or the Agency or their respective officers, agents or employees for damages,return of the Work or injunctive relief. 17.MAINTENANCE OF THE WORK. The Agency recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work. The Agency agrees to reasonably assure that the Work is properly maintained and kept in proper condition taking into account the recommendations of the Artist provided in accordance with Section 8 of this contract.Further the Agency shall reasonably protect and maintain the Work against the ravages of time,vandalism and the elements. The Agency shall communicate with the WCA regarding any maintenance problems prior to taking further action.The obligations created in this section of the Agreement of the Agency, flow only from the Agency to the WCA and not from the Agency or the WCA to the Artist. The Artist shall provide to the WCA and the Agency a full set of plans and design drawings and other relevant Work for maintenance and repair of the Work. 18. REPAIRS.The Agency agrees that it will consult with and obtain prior written approval from the WCA for all repair and restoration of the Work. Approval by the WCA shall not be unreasonably withheld. The Agency agrees to record, in writing,all maintenance and conservation treatment, including the date the treatment was completed, the process and products used and the name of the person(s) who did the treatment. A copy of the treatment record shall be forwarded to the WCA within 30 days of the completion of the maintenance or conservation treatment and shall become part of the permanent record of the Work. A professional qualified and trained in the processes and ` • 4 procedures of contemporary conservation must supervise or conduct all Conservation treatment.This Conservation treatment does not include regular maintenance work as originally outlined by the Artist in the Documentation/Conservation Record. The obligations created in the first two paragraphs of this section of the Agreement of the Agency,flow only from the Agency to the WCA and not from the Agency or the WCA to the Artist. During the Artist's lifetime,the Artist shall supply at no charge to the Agency or WCA, advice concerning problems related to the maintenance of the Artist's Work.Reasonable attempts shall be made to contact and inform the Artist of modification,changes or removal of the Work. The Artist shall have the right to approve all repairs and conservation,provided, however,the Artist shall not withhold approval for any repair or conservation of the Work made in accordance with recognized principles of conservation. If the Artist fails to approve any repair or restoration, made in accordance with recognized principles of conservation,the Agency and the WCA shall have the right to make such repair or conservation. The Artist shall be given the opportunity to make or personally supervise repairs and conservation if the Artist is qualified and available within a time period that will prevent additional damage to the Work. The Artist shall be paid a fee for any such services, as the Agency and the Artist shall agree in writing. All amounts paid to the Artist for the purpose of repair and conservation will be the responsibility of the Agency,unless the necessary repairs or conservation are due to the negligence of the Artist or resulting from a defect of material and or Workmanship.All repairs and conservation shall be made in accordance with recognized principles of conservation. The Agency shall consult with the WCA in all matters concerning repairs and restoration of the Work. 19.RELOCATION.The Work shall be placed in the location selected by mutual agreement between the Artist and Agency. Should the site prove to be unacceptable for any reason prior to initial installation, the Agency will work with the Artist and the WCA to find an alternative site. After the initial installation, the Agency and the WCA agree that they will attempt to notify the Artist if,for non-emergency reasons,the Work has to be removed and permanently relocated. The Artist may advise the Agency and the WCA regarding relocation of the Work. 20. DEACCESSIONING. Final approval for Deaccessioning of Work rests with the WCA.The Work shall not be sold, given away or destroyed without following the guidelines and procedures as set forth in the WCA Deaccessioning Policy that reflects the Standards and Practices as set forth by the appropriate Professional Organizations and state and federal agencies. If the WCA and the Agency shall at any time mutually decide to purposefully destroy the Work,it shall by notice to the Artist offer the Artist a reasonable opportunity to recover the Work at no cost to the Artist except for the amount by which the cost to the Agency of such recovery exceeds the costs to the Agency of the proposed destruction. 21.WAIVER AND TERMINATION OF RIGHTS. The Artist agrees to notify the WCA of any changes in the Artist's address within 90 days of that change. Failure to do so shall be deemed a waiver of the Artist's rights expressed in Sections 20, 21, and 22 of this Agreement. Upon the death of the Artist, all of the Artist's rights expressed in Sections 17 and 18 of this agreement revert to the City of Waterloo, Iowa. 22.MODIFICATIONS OF THIS AGREEMENT. No alteration,change or modification of the terms of this Agreement shall be valid unless made in writing and signed by all parties hereto. 23.EMPLOYMENT. The Artist will not engage the services of any person or persons now employed by the City, including any department,commission or WCA thereof, without the written consent of the employer of such person or persons and of the WCA. 24, NONDISCRIMINATION IN EMPLOYMENT. In connection with the performance of Work under this Agreement, the Artist agrees not to discriminate against any employee or applicant because of age,race,religion, color, handicap, sex, physical condition, developmental disability as defined in sexual orientation or national origin. This provision shall include, but not be limited to, the following:employment,upgrading,demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including 5 apprenticeship. The Artist further agrees to take affirmative action to ensure equal employment opportunities. The Artist agrees to post in conspicuous places, available for employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of the State of Iowa nondiscrimination clause. 25.LEGAL RELATIONS. The Artist shall at all times comply with and observe all federal and state laws, local laws, ordinances, and regulations which are in effect during the period of this Agreement and which in any manner affect the Work or its conduct. The Artist agrees that any litigation commenced by the Artist for matters arising out of this Agreement shall be governed by the laws of the State of Iowa,and shall have venue in Black Hawk County, Iowa unless otherwise specifically agreed between the WCA and the Artist. The Artist shall indemnify and save harmless the State and all of its officers,agents and employees from all suits, actions or claims of any character brought for or on account of any injuries or damages received by any persons or property resulting from the operations of the Artist,or of any of its Contractors,in prosecuting Work under this Agreement. 26. CONTINUANCE OF AGREEMENT. Continuance of this Agreement beyond the limits of funds available shall be contingent upon appropriations of the necessary funds,and the termination of this Agreement by lack of appropriations shall be without penalty. 27.COPYRIGHT. The Artist expressly reserves every right available to the Artist in common law or under the Federal Copyright Act and all other rights in and to the Work except ownership and possession. The Artist grants to the WCA, Agency and State of Iowa under this Agreement, the right to publish, display and reproduce the Work by photographic, electronic,digital, and mechanical or any other methods that may become available following the installation of the Work for any non-commercial purpose.The Artist grants to the WCA,Agency or the State of Iowa under this Agreement the right to digitally publish,display or reproduce the Work on the WCA's,Agency's or the City of Waterloo's website/page or in such other media that may become available following installation of the Work. The Artist agrees to release and hold harmless the City, the Agency and the WCA and their officers, members,agents and employees from any and all causes of action, suits at law or equity,demands or claims resulting from the publication and display of the Work on the Internet or in such other media that becomes available following installation of the Work. All reproductions of the Work by the Agency or WCA shall contain a credit to the Artist as follows: "©Richard C. Thomas, 2006." The Artist agrees to give credit in the following form: "Original owned by Waterloo Center for the Arts" in any public showing of any reproductions of the Work. The Artist must provide to the WCA documentation that the Artist holds copyright to all of the materials outlined in section 10. These materials include but are not limited to: still photographs, photographic slides, electronic and digital materials and video. IN WITNESS WHEREOF,the parties hereto have executed this Agreement. Richard C. Thomas, Artist Date �a-s -as Tim Hurley,Mayor Date City of Waterloo Cammie Scully,Executive Director Date WCA