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HomeMy WebLinkAbout6.n. Approval of Agreement for Services with Foster Willey Jr., Artist and City of RosemountRC)ISEMOU T EXECUTIVE SUMMARY CITY COUNCIL City Council Regular Meeting: April 6, 2010 AGENDA ITEM: Approval of Agreement for Services with AGENDA SECTION: Foster Willey Jr., Artist and the City of �� Rosemount PREPARED BY: Kim Lindquist, Community Development AGENDA NO. Director ATTACHMENTS: Contract APPROVED BY: RECOMMENDED ACTION: Motion to approve the Agreement for Services BACKGROUND The City has been working with the Dakota County Board and the Dakota County Library Board to pick an art piece for installation at the new Dakota County Library- Rosemount branch. Recently all interested parties reviewed the documents associated with the recommended artwork and indicated acceptance of the design. A contract with the artist for execution of the art piece is scheduled before the Council tonight. An agreement with Dakota County and the City will also be brought before the Council for approval in the future. That agreement will address ownership and maintenance. ISSUE Highlights of the agreement for services are that the Artist will complete the fabrication and installation of the foundation by September 30, 2010 and the fabrication and installation of the art work by October 29, 2010. Payments will occur in three installments with 10% retained until after full installation and acceptance of the art work by the City. The City Attorney and Artist have reviewed the contract and have approved the language. Financing for the project has been included in the CIP for the past several years. The idea for installation of an art piece was discussed over the course of design development for the library. The location of the piece will be in the open grassed area near the children's section of the library. The illustrations by the artist indicate additional amenities such as sidewalks and benches. These items are not part of the initial proposal and are not budgeted into the final design cost. RECOMMENDATION Approve the Agreement for Services between the City and the Artist, Foster Willey Jr. CITY OF ROSEMOUNT AGREEMENT FOR SERVICES THIS AGREEMENT is made on , 2010, between the City of Rosemount, hereinafter referred to as the OWNER, and Foster Willey, Jr., hereinafter referred to as the ARTIST. WHEREAS, the OWNER has accepted the proposal of a free- standing cast bronze sculpture (6'- 8" in height and 7' in length) on a six -foot base (total height 12' -8 ") created by the ARTIST and hereinafter referred to as the ART WORK, for Dakota County, Robert Trail Library. A copy of said proposal as accepted is attached hereto as Exhibit "A" (hereinafter "Proposal ") not including that part of the Proposal described as "amenities" or labeled "ADDITIONAL AMENITIES ". NOW, THEREFORE, in consideration of the mutual promises and undertakings contained herein, the parties agree as follows: Article 1. Scope of Services 1.1. General a. The ARTIST shall perform all services and furnish all supplies, materials and equipment as necessary for the execution, fabrication, transportation, preparation, and installation of the ART WORK at the site. b. The ARTIST shall at all stages of execution, fabrication and installation coordinate its work with the OWNER. 1.2. Execution of the Work a. The ARTIST shall complete the fabrication and installation of the foundation of the ARTWORK by not later than September 30, 2010. The ARTIST shall complete the fabrication and full installation of the ART WORK by no later than October 29, 2010. Such schedule may be amended by written agreement between the OWNER and the ARTIST. b. The OWNER shall have the right to review the ART WORK at reasonable times during the fabrication thereof. The OWNER shall be allowed to photograph or film the fabrication and installation of the ART WORK. C. The ARTIST shall complete the fabrication and install the ART WORK in conformity with the approved Proposal. d. The ARTIST shall present to the OWNER in writing for further review and approval any significant changes in scope, design, color, size, material or texture of the ART WORK not permitted by or not in conformity with the Proposal. A significant change is any change in the scope, design, color, size, material, texture 365801v4 CLL RS215 -4 or location of the site of the ART WORK that affects installation, scheduling, site preparation or maintenance for the ART WORK or the concept of the ART WORK as represented in the Proposal. 1.3. Delivery and Installation a. The ARTIST shall notify the OWNER in writing when the fabrication of the ART WORK is completed and the ARTIST is ready for its delivery and installation at the site. b. The ARTIST agrees to notify the OWNER no fewer than (14) days prior to the ARTIST'S intended time of installation of the ART WORK. 1.4. Post Installation a. The ARTIST shall be notified of any dates and times for presentation ceremonies relating to the ART WORK. b. Upon installation of the ART WORK, the ARTIST shall provide to the OWNER detailed written instructions for appropriate maintenance and preservation of the ART WORK, if needed. 1.5. Final Acceptance a. The ARTIST shall advise the OWNER in writing when all services in Sections 1.1 through 1.4 (b) have been completed in substantial conformity with the Proposal. b. The OWNER shall notify the ARTIST in writing of OWNER'S final acceptance of the ART WORK. C. Final acceptance shall be effective on one of the two dates, whichever occurs earlier: (1) the date of the OWNER'S written notification to ARTIST of final acceptance; or, (2) the 60th day after receipt by OWNER of written notice given by ARTIST under Section 1.5 (a) unless prior to the expiration of the 60 day period, the OWNER gives the ARTIST written notice specifying and describing the services which have not been completed or other reason(s) for which the ART Work has not been accepted. 1.6. Risk of Loss The risk of loss or damage to the ART WORK shall be borne by the ARTIST until final acceptance by the OWNER, and the ARTIST shall take such measures as are necessary to protect the ART WORK from loss or damage until final acceptance. 1.7. Liability, Indemnification and Insurance a. The ARTIST agrees to indemnify, defend and hold OWNER and its officers, employees, and agents harmless from any and all loss, cost, damage and expense 365801 v4 CLL RS2154 2 (including reasonable attorney's fees and court costs) resulting from, arising out of, or incurred by reason of any claims, actions or suits based upon or alleging bodily injury, including death, or property damage arising out of or resulting from ARTIST'S operations, duties or responsibilities under this agreement, whether such be by ARTIST itself or by any subcontractor or by anyone directly or indirectly employed by either of them. b. The ARTIST and all employees of the ARTIST shall each secure and maintain insurance to protect the ARTIST from claims under workers compensation acts; claims for damages because of bodily injury including personal injury, sickness or disease, or death of any of their employees or of any person other than their employees; and from claims for damages because of injury to or destruction of tangible property; including loss of use resulting therefrom; and from claims arising out of their performance of professional services caused by errors, omissions, or negligent acts for which the ARTIST is legally liable. 1.8. Title Title of the ART WORK shall pass to the OWNER upon OWNER'S final acceptance of the completed ART WORK. Article 2. Compensation and Payment Schedule 2.1. Not To Exceed Fee The ARTIST shall receive an amount not to exceed $60,000 from the OWNER in consideration for the production and installation of the ART WORK performed by the ARTIST which shall constitute full compensation for all fees, services, expenses, and materials to be performed and furnished by the ARTIST under this agreement. The fee shall be paid within thirty (30) days after final acceptance of the installed ART WORK and receipt of an invoice. a. $18,000 due within thirty (30) days after execution of this agreement, invoice to be submitted by the ARTIST. b. Two payments for the amount of $18,000 each, invoices to be submitted by the ARTIST, one in June 2010 and one in August 2010, for Artist services, due within thirty (30) days upon receipt. C. $6000 (10 %) due within thirty (30) days after final acceptance. If the ARTIST elects to utilize the OWNER "S services and materials during installation, those fees shall be deducted from the final payment due the ARTIST. Invoice to be submitted by the ARTIST. 2.2. Permits ARTIST is responsible for obtaining any and all permits from any governmental agency required to perform any aspect of the fabrication and installation of the ART WORK. ARTIST acknowledges that a building permit is required to be obtained from the City of Rosemount for the ART WORK, including the footing and foundation. 365801A CLL RS215-4 3 Article 3. Time of Performance 3.1. Duration The services to be required of the ARTIST as set forth in Article 1 shall be completed in accordance with the schedule for completion of the ART WORK pursuant to Section 1.2, provided that such time limits may be extended or otherwise modified by written agreement between the ARTIST and the OWNER. 3.2. Time Extensions The OWNER shall grant a reasonable extension of time to the ARTIST in the event that there is a delay on the part of the ARTIST in performing its obligations under this Agreement due to conditions beyond the ARTIST'S control or Acts of God that render timely performance of the ARTIST'S services impossible or unexpectedly burdensome. Likewise the ARTIST shall grant a reasonable extension of time to the OWNER in the event that there is a delay on the part of the OWNER in performing its obligations under this Agreement due to conditions beyond the OWNER'S control or Acts of God that render timely performance of the OWNER'S services impossible or unexpectedly burdensome. Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control will not be considered a breach of contract; provided that such obligations shall be suspended only for the duration of such condition. Article 4. Warranties 4.1. Warranties of Title and Lien Waivers The ARTIST represents and warrants that: (a) the ART WORK is solely the result of the artistic effort of the ARTIST; (b) except as otherwise disclosed in writing to the OWNER, the ART WORK is unique and original and does not infringe upon any copyright; (c) that the ART WORK, or a duplicate thereof, has not been accepted for sale elsewhere; and (d) the ART WORK is free and clear of any liens from any source whatsoever. ARTIST shall provide to OWNER lien waivers from all subcontractors and suppliers furnishing work, labor, services, or materials for the performance of this agreement. The ART WORK will not be subject to Final Acceptance under Paragraph 1.5 until the ARTIST has first provided said lien waivers to OWNER. 4.2. Warranties of Quality and Condition The ARTIST represents and warrants that: (a) the execution and fabrication of the ART WORK will be performed in a workmanlike manner; (b) the ART WORK, as fabricated and installed, will be free of defects in material and workmanship, including any defects consisting of inherent qualities that cause or accelerate deterioration of the ART WORK; and (c) maintenance recommendations submitted by the ARTIST to the OWNER hereunder, if followed, will achieve their intended result. The warranties described in this Section 4.2 shall survive for a period of three years after the final acceptance of the ART WORK. The OWNER shall give notice to the ARTIST of any observed breach with reasonable promptness. The ARTIST shall, at the request of the OWNER, and at no cost to the OWNER, cure reasonably and promptly the breach of any such warranty 3658010 CLL RS215-4 4 that is curable by the ARTIST and which cure is consistent with professional conservation standards (including, for example, cure by means of repair or refabrication of the ART WORK). Article 5. Reproduction Rights 5.1. General The ARTIST retains all rights under the Copyright Act of 1976, 17 U.S.C., 101 et. seq., and all other rights in and to the ART WORK except ownership and possession, except as such rights are limited by this Section 6.1. In view of the intention that the ART WORK in its final dimension shall be unique, the ARTIST shall not make any additional duplicate reproductions of the final ART WORK, nor shall the ARTIST grant permission to others to do so except with the written permission of the OWNER. The Artist may make duplicate reproductions of the final Artwork provided that any reproductions are scaled no larger than 3" is equal to 1' (model is scaled to 1" is equal to 1'). Both parties shall agree to any other type or size reproduction in writing. The ARTIST grants to the OWNER and its assigns a royalty -free, irrevocable license to make two - dimensional reproductions or representations of the ART WORK for public, educational and/or non - commercial purposes, including but not limited to reproductions used in or on advertising, calendars, posters, brochures, media, publicity, catalogues, museum, educational and development projects, and public facilities, provided that these rights are exercised in a professional manner. No three- dimensional reproductions may be made of final ART WORK by OWNER without prior written consent from ARTIST, which consent shall not be unreasonably withheld. OWNER may not make three- dimensional reproductions of final ART WORK without prior written consent from ARTIST, which consent shall not be unreasonably withheld. Consent by ARTIST may require a separate agreement for the use of final ART WORK for three- dimensional reproductions. 5.2. Notice All reproductions by the OWNER shall contain a credit to the ARTIST and a copyright notice substantially in the following form: [ARTIST'S NAME], year of completion. 5.3. Registration The ARTIST may cause to be registered, with the United States Register of Copyrights, a copyright of the ART WORK in the ARTIST'S name. Article 6. ARTIST'S Rights 6.1. Maintenance The OWNER recognizes that maintenance of the ART WORK on a regular basis is essential to the integrity of the ART WORK. The OWNER shall take reasonable steps to assure that the ART WORK is properly maintained and protected, taking into account the instructions of the ARTIST provided in accordance with Section 1.4 (c). 6.2. Alteration of the Work or of the Site a. Except as provided under subsection 6.2(b), below, The OWNER agrees that it will not intentionally damage, alter, modify or change the ART WORK without the prior written approval of the ARTIST. 365801 v4 CLL RS2154 b. The OWNER reserves the right to alter the location of the ART WORK; relocate the ART WORK to another site; and remove the ART WORK from public display for maintenance or any other reason. The following provisions shall apply to relocation or removal: (i) While the OWNER shall attempt to remove ART WORK in such a way as to not affect the ART WORK, it is the parties understanding that such removal may result in damage, alteration, modification, destruction, distortion or other change of the ART WORK. The ARTIST acknowledges that this provision shall qualify under 17 U.S.C. Section 113 (d) so as to waive rights under 17 U.S.C. Section 106A. (ii) If, at the time of removal, it is determined that the ART WORK may be removed without damage, alteration, modification, destruction, distortion or other change, OWNER shall give notice as required by 17 U.S.C. Section 113 (d) (2) and (3). On completion of the ART WORK, the ARTIST agrees to file the records, including ARTIST'S identity and address, with the Register of Copyrights as provided under 17 U.S.C. Section 113 (d) (3). The ARTIST further agrees to update information with the Register of Copyrights so as to permit notification of intent to remove the ART WORK. 6.3. Permanent Record The OWNER shall maintain on permanent file a record of this Agreement and the location and disposition of the ART WORK. Article 7. ARTIST as Independent Contractor The ARTIST shall perform all work under this Agreement as an independent contractor and not as an agent or an employee of the OWNER. The ARTIST shall not be supervised by any employee or official of the OWNER, nor shall the ARTIST exercise supervision over any employee or official of the OWNER. Article 8. Assignments, Transfer, Subcontracting 8.1. Neither this Agreement nor any interest herein shall be transferred by the ARTIST. Any such transfer shall be null and void. 8.2. Subcontracting by ARTIST The ARTIST may subcontract portions of the services to be provided hereunder at the ARTIST'S expense provided that said subcontracting shall not negatively affect the design, appearance, or visual quality of the Proposal and shall be carried out under the personal supervision of the ARTIST. The ARTIST must obtain approval from the OWNER prior to hiring any subcontractor. If the OWNER does not approve the hiring of any subcontractor, another subcontractor must be submitted for approval by the OWNER. 365801v4 CLL RS215 -4 6 Article 9. Termination If either party to this agreement shall willfully or negligently fail to fulfill in a timely and proper manner, or otherwise violate any of the covenants, agreements or stipulations material to this agreement, the other party shall thereupon have the right to terminate this agreement by giving written notice to the defaulting party of its intent to terminate specifying the grounds for termination. The defaulting party shall have thirty (30) days after receipt of the notice to cure the default. If it is not cured, then this agreement shall terminate. In the event of default by the OWNER, the OWNER shall promptly compensate the ARTIST for all services performed by the ARTIST prior to termination. In the event of default by the ARTIST, all finished and unfinished drawings, sketches, photographs, and other work products prepared and submitted or prepared for submission by the ARTIST under this agreement shall at the OWNER'S option become its property, provided that no right to fabricate or execute the ART WORK shall pass to the OWNER and the OWNER shall compensate the ARTIST pursuant to Article 2 for all services performed by the ARTIST prior to termination; or the ARTIST shall refund all amounts paid by the OWNER in exchange for all finished and unfinished related ART WORKs. Notwithstanding the previous sentence, the ARTIST shall not be relieved of liability to the OWNER for damages sustained by the OWNER by virtue of any breach of this Agreement by the ARTIST, and the OWNER may reasonably withhold payments to the ARTIST until such time as the exact amount of such damages due the OWNER from the ARTIST is determined. Article 10. Compliance The ARTIST shall comply with Federal, State, and City statutes, ordinances and regulations applicable to the performance of the ARTIST'S services under this agreement. Article 11. General Terms 11.1. Records Access The ARTIST shall provide OWNER access to any books, documents, papers, and records which are directly pertinent to the specific contract, for the purpose of making audit, examination, excerpts, and transcriptions, for three years after final payments and all other pending matters related to this agreement are closed. 11.2. Subcontractor /Supplier Payment The ARTIST shall pay any and all subcontractors and suppliers furnishing work, labor, services, or materials for the performance of this agreement within ten (10) days of the ARTIST'S receipt of payment by OWNER for undisputed services provided by the subcontractor. If the ARTIST fails within that time to pay the subcontractor any undisputed amount for which the ARTIST has received payment by the OWNER, the ARTIST shall pay interest to the subcontractor on the unpaid amount at the rate of 1 -1/2 percent per month or any part of a month. The minimum monthly interest penalty payment for an unpaid balance of $100 or more is $10. For an unpaid balance of less than $100, the ARTIST shall pay the actual interest penalty due to the subcontractor. A subcontractor who prevails in a civil action to collect interest penalties from the ARTIST shall be awarded its costs and disbursements, including attorney's fees, incurred in bringing the action. 365801 v4 CLL RS215 -4 11.3. Non - Discrimination During the performance of this agreement, the ARTIST shall not discriminate against any employee or applicants for employment because of race, color, creed, religion, national origin, sex, sexual orientation, marital status, status with regard to public assistance, disability, or age. The ARTIST shall post in places available to employees and applicants for employment, notices setting forth the provisions of this non - discrimination clause and stating that all qualified applicants will receive consideration for employment. The ARTIST shall incorporate the foregoing requirements of this paragraph in all of its subcontracts for program work, and will require all of its subcontractors for such work to incorporate such requirements in all subcontracts for program work. 11.4. Data Privacy The ARTIST shall comply with the Minnesota Statutes, Chapter 13, the Minnesota Government Data Practice Act. The ARTIST shall not disclose non - public information except as authorized by the Act. 11.5. Meeting Attendance At the request of OWNER, the ARTIST shall attend meetings of the City Council relative to the work set forth in this Agreement. Any requests made by the OWNER shall be given with reasonable notice to ARTIST to assure attendance. 11.6. Agreement Should any section of this Agreement be found invalid, it is agreed that the remaining portion shall be deemed severable from the invalid portion and continues in full force and effect. 11.7. Governing Law This agreement shall be controlled by the laws of the State of Minnesota. Article 12. Entire Agreement This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. Article 13. Modification No alteration, change, or modification of the terms of the Agreement shall be valid unless made in writing and signed by both parties hereto and approved by appropriate action of the OWNER. Article 14. Authorized Agents The OWNER shall appoint an authorized agent for the purpose of administration of this agreement. The authorized agent for the OWNER is as follows: 365801v4 CLL RS215 -4 8 Kim Lindquist City of Rosemount 2875145 1h St. W. Rosemount, MN 55068 (651) 423 -4411 The authorized agent for the ARTIST is as follows: Foster Willey, Jr. OWNER CITY OF ROSEMOUNT William Droste, Mayor Attest: Amy Domeier, City Clerk ARTIST Foster Willey, Jr. 365801v4 CLL RS215-4 9 TRISKELE BY FOSTER WILLEY 02010 TRISKELE IS A CELTIC SYMBOL CONSISTING OF THREE SPIRALS. THE SPIRAL IS A UNIVERSAL SYMBOL THAT APPEARS THROUGHOUT NATURE AND IN NUMEROUS CULTURES. ITS MANY INTERPRETATIONS INCLUDE CREATION, ETERNAL LIFE, AND HUMAN SPIRITUALITY. THE TRISKELE ALSO SYMBOLIZES THE THREE REALMS - LAND, WATER, AND SKY. THE CELTIC SPIRAL IS THE INSPIRATION FOR THIS WORK OF ART. TRISKELE REPRESENTS THE CITY OF ROSEMOUNT, ITS CONNECTION TO IRELAND AND ITS VISION FOR CULTURE WITHIN THE COMMUNITY: r4 ! f } IV , 3 1 Foster Willey Jr. February 24, 2010 60722 n, Ave. NE Minneapolis, MN 55418 612- 782 -8629 fosterwillevo)earthlink net fosterwilley.com City of Rosemount Public Art Proposal TR/SKELE Narrative My proposal is a freestanding sculptural form that is inspired by Irish iconography and metaphorically contributes to the strong Irish sentiments that many of the current Rosemount residents share. It is my intention to create a contemporary work of art that is visually dynamic, provides a.unique gathering space, and serves as the focal point of the Robert Trail Library. The Irish iconography I refer to is taken from Celtic Art, a visually rich and enduring art form. The triple spiral or triskele is a symbol consisting of three interlocking spirals. Believed to be an ancient symbol of Celtic beliefs, the triple spiral appears in various forms in Celtic art, with the earliest examples having been carved on pre - Celtic stone monuments, and later examples found in Christian illuminated manuscripts. The spiral is a universal symbol that appears through out the natural world and in many cultures. The spiral is recognized as a powerful symbol of creation and growth. In most cultures, it is a symbol of eternal life, spiraling out infinitely, thus reinforcing the concept of life, death, and rebirth. It is one of the oldest symbols of human spirituality. Celtic Spirals have many interpretations, one of which is a symbol of the three realms — land, sea, and sky. Trsskele will have an iconic presence and will appear as a strong graphic silhouette against the brick facade of the Robert Trail Library. The sculptural form will compliment and harmonize with the strong contemporary lines of the architecture. This. lyrical work is elevated and consists of three spirals placed side by side. Its geometric design expresses both transparency and movement. The sculpture will be fabricated out of cast bronze with a light brown patina. It will be placed on a six -foot tall black cast stone base that is tapered on three sides and inset with a relief of the triskele design found through out this proposal. The completed work will be approximately eight feet in length and fourteen feet in height (including the base). It will be place at an angle to the masonry fagade of the library. Because of its scale the artwork will have a strong street presence for passing automobile traffic and will be clearly visible from within the library. Included in my proposal are several amenities such as in- ground up lighting and a decorative stone surround. Also included are ideas for site integration that include paving suggestions and bench designs. These amenities and suggestions would be a separate budget. The designs are intended to complete and compliment the artwork and the architecture of the library. The bench design with its stylized triskele backrest could be utilized in other locations around the city. The design could also be configured in other ways such as balusters, signage, or lighting. Trsskele provides an exciting addition to the streetscape of Rosemount. It also compliments the modern geometric lines of the Robert Trail Library. The Celtic spiral is the inspiration for this work of art. Trishie% represents the City of Rosemount, its connection to Ireland, and its vision for culture within the community. Thank you for providing this opportunity. I hope you will find my work of interest. 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