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HomeMy WebLinkAboutContract to Commission Artwork with Scultures by BJH, LLC for Meridian City Gateway Signage CONTRACT TO COMMISSON AN ARTWORK THIS AGREEMENT made as of the date this agreement is fully executed between Sculptures by BJH LLC (hereinafter referred to as the "Artist"), located at 3175 N. Ten Mile Road, Meridian, ID 83642-5307 (208) 887-9632 and the City of Meridian (hereinafter referred to as the "Purchaser"), located at 33 East Idaho Avenue, Meridian ID, 83642. Contact person for this entity is the Meridian City Clerk at (208) 888-4433. This purchaser designated the Artist Bernie Jestrabek-Hart, employee of Sculptures by BJH LLC to fabricate the work herein described. WHEREAS, Sculptures by BJH LLC employs a recognized professional artist; and, WHEREAS, the Meridian City Gateway signage committee has designed a sculpture to be placed at Meridian's Gateway at the intersection of Meridian Road and Main Street near Waltman Lane; and, WHEREAS, the Purchaser desires to contract for the work of the Artist and wishes to commission the Artist to fabricate a work of art as designed by the Gateway Signage Committee (hereinafter referred to as "the Work"); and, WHEREAS, the parties wish to have the creation of this work of art governed by the mutual obligations, covenants, and conditions herein. NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter set forth and other valuable considerations, the parties hereto agree as follows: 1. Design and Price. The Artist hereby agrees to reproduce the design for the Meridian Gateway sculpture and fabricate the Work as depicted and described in Exhibit "A" attached hereto and incorporated herein. The Work shall be fabricated to include the following materials: The top portion (the "Meridian logo") shall be made of stainless steel. The bottom portion shall be made of Y4 inch steel rod twisted to simulate barbed wire. Artist shall coordinate with the lighting consultant prior to fabrication to make provisions for mounting LED lighting within the sculpture. The intended site for placement of the completed Work shall be as depicted in Exhibit "B" attached hereto and incorporated herein. The Purchase Price for the Work shall be Sixteen Thousand Dollars ($16,000.00). A. The above listed price does not include lighting, installation, or the foundation into which these sculptures are to be mounted (such as a rock, dirt, or masonry foundation). Contract to Commission an Artwork page 1 of9 B. The price does include the proper mount needed within the sculpture to allow the piece to be installed. 2. Progress Payments. Within 30 days of the Signing of this agreement, the Purchaser agrees to pay the deposit of'i'2 (one-half) of the purchase price. The Artist shall proceed with construction of the Work. Purchaser is a tax exempt governmental entity, so no sales tax shall be collected on the purchase price. The remainder of the purchase price shall be paid upon completion of the Work. Completion of the Work shall be determined by the Artist, who shall use the Artist's professional judgment to deviate from the preliminary design only as required as the Artist in good faith believes necessary to create the Work. 3. Completion Date. The intended Completion Date is the 30th day of June, 2006. This completion date shall be extended for such period of time as the Artist may be disabled by illness preventing progress of the Work. This completion date shall be extended for such period of time by events beyond the control of the Artist, including but not limited to fire, theft, strikes, shortages of materials, and Acts of God. Time shall not be considered of the essence with respect to the completion of the Work. 4. Insurance, Shipping, and Installation. The Artist agrees to bear any other risk of loss and/or damage until the Purchaser receives the Work at Artists location set forth in the first paragraph of this document. In the event of loss caused by fire or theft prior to Purchaser's acceptance of the work, the Artist shall recreate the Work that was lost and/or damaged at no expense to the Purchaser. The Artist is responsible for having the Sculpture furnished with the proper mounts within the Work. The Artist shall be available for consultation and help with installation if the Artist is available. The Purchaser is responsible for the cost and the labor ofthe installation. 5. Termination. A. Termination for Cause: If either party willfully or negligently fails to fulfill its obligations under this Agreement, the other party shall have the right to terminate the Agreement, by giving written notice to the defaulting party of its intent to terminate and specify the grounds for termination. The defaulting party shall have thirty (30) days after receipt of the notice to cure the default. If the default is not cured, this Agreement shall terminate. In the event of Contract to Commission an Artwork page 2 of 9 termination for non-performance by Purchaser, then Purchaser shall compensate the Artist for reasonable accrued costs for completed phases of the Work or any additional services and materials performed or supplied prior to termination; such compensation, however, shall be limited to the amounts set forth herein and shall not exceed the Purchase Price. In the event of default by Artist, except that caused by the death or incapacity of Artist, all finished and unfinished drawings, photographs, and other work products prepared and submitted or prepared for submission under this Agreement shall become property of Purchaser and subject to the following: Purchaser shall pay Artist for such material, to the extent not already paid. Artist shall not be relieved of any liability for damages sustained by Purchaser by virtue of Artist's breach of this Agreement and the Purchaser may reasonably withhold payments due until such time as the exact amount of damages due Purchaser from the Artist is determined, and offset amounts can be determined. B. Termination Upon Death or Incapacity of Artist: This Agreement shall automatically terminate on the death of the Artist. 1) The Purchaser shall have the right to choose if it wants to keep the Work. If the Purchaser decides to keep the Work it has permission to locate another artist to complete the Work. An estimate Appraisal of the value of the Work will then be made and the proper amount will be paid or refunded by either the Purchaser or by the Artist's Estate, depending upon how much of the Work was completed at the time of the death compared to progress payments already paid. 2) If the Purchaser decides not to take the Work, the Artist's estate will have the Work appraised and shall keep the amount the piece is valued at whatever stage it is at. Any monies paid above this value shall be returned to the Purchaser. The Work will then be owned by the Artist's estate. C. Termination for Convenience of Purchaser: Purchaser may terminate this Agreement for any reason at any time by giving at least fifteen (15) days notice in writing to Artist. If Agreement is terminated by Purchaser as provided herein, Artist shall be compensated for reasonable accrued costs for completed phases of the Scope of Services to date of written notice of termination and any additional services and materials performed or supplied prior to termination, less payments of compensation previously made. In no event of termination for cause shall the amount of payments to Artist exceed the amount of compensation due hereunder. Purchaser shall not be responsible for the cost of services performed or expenses incurred subsequent to such notice of termination. 6. Ownership of the Work. The design and fabricated sculpture constituting the Work is a limited edition of one. Upon completion and payment of the purchase price the Work shall be owned by the Purchaser. Contract to Commission an Artwork page 3 of9 7. Copyright. The design of the Work was created by the Gateway Signage Committee and the copyright for the design shall be owned by the Purchaser. While the Artist makes no claim to the copyright of the design, the Artist shall be identified and shall receive credit in connection with the fabrication of the Work. 8. Privacy. The Purchaser gives to the Artist permission to use the Purchaser's name and logo in all forms and media and in all manners, including but not limited to exhibition, display, advertising, trade, and editorial uses, without violation of the Purchaser's rights of privacy or any other rights the Purchaser may possess in connection with its commission and purchase of the Work. 9. Waiver and Relinquishment of Rights. Artist hereby expressly waives any and all right, title, or interest in said copyrighted Work. Artist understands that said waiver includes waivers of the exclusive rights of reproduction, adaptation, publication, performance and display. Artist agrees to relinquish any and all rights, title, and interest to the Work developed in connection with this Agreement and hereby expressly waives any rights Artist has to said Work including, but not limited to, the rights afforded artists under the Copyright Act of 1976 and the Visual Arts Rights Act of 1990, Title 17 U.S.C. Sections 101, et seq. Artist understands and agrees that the right of attribution and integrity, as specifically set forth in 17 U.S.C. Section 1O6A, are hereby expressly waived except as otherwise provided herein. To the extent that the provisions of this Agreement differ with the Copyright Act of 1976 and Visual Arts Rights Act of 1990, the provisions of this Agreement will govern and any such differences in the rights and duties created thereunder are expressly waived. 10. Repairs and Restoration. Purchaser shall have the exclusive right to determine when and if repairs and restorations of the Work shall be made 11. Alteration. If any alteration occurs to the Work after installation, whether intentional or accidental and whether done by Purchaser or others, upon written request of Artist, the Work shall no longer be represented to be the work of Artist. Other than as specified herein, Artist Contract to Commission an Artwork page 4 of 9 specifically waives the right to claim any other remedy concerning the alteration of the Work as provided for under Idaho or federal law, whether by statute or otherwise. 12. Removal. Nothing in this Agreement, or otherwise, shall preclude the right of Purchaser to remove Work from public display. In the event that Purchaser decides to remove such Work from public display, and it is not subject to destruction, in whole or part by removal of same, and upon such time as Purchaser decides to sell said Work, Artist shall have the first right of refusal to purchase Work from Purchaser. Price of Work shall be the fair market value as agreed upon by Purchaser and Artist. 13. Heirs and Assigns. This Agreement shall be binding upon the parties hereto, their heirs, successors, assigns, and personal representatives and references to the Artist and the Purchaser shall include their heirs, successors, assigns, and personal representatives. 14. Entire Agreement. This Agreement constitutes the entire understanding between the parties. Its terms can be modified only by an instrument in writing signed by both parties. 15. Non-Waiver of Breach. A waiver of any breach of any of the provisions of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions hereof. 16. Notices and Changes of Address. All notices shall be sent to the addresses set forth in the first paragraph of this document. Each party shall give written notification of any change of address prior to the date of said change. 17. Hold Harmless and Indemnification. Artist agrees to indemnify, defend, and hold harmless Purchaser, its officers, employees and agents from and against any damages or losses of any nature whatsoever, including damage or loss to Artist, and all liability or expense (including defense costs and legal fees), for any causes of action arising from or connected with the services performed by Artist, her agents, employees, assigns, heirs, or representatives pursuant to this Agreement whether brought against Purchaser by third parties or otherwise, unless caused by the sole negligence of Purchaser. Contract to Commission an Artwork page 5 of 9 18. Independent Artist. It is the express intention of the parties that Artist is an independent Artist and not an employee, agent, joint venturer, or partner of Purchaser. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Artist and Purchaser or between Artist and any official, agent, or employee of Purchaser. Both parties acknowledge that Artist is not an employee of Purchaser. Artist shall retain the right to perform services for others during the term of this Agreement. 19. Attorney's Fees. In any action by Purchaser or Artist for recovery of any sum due under this Agreement, or to enforce any of the terms, covenants, or conditions contained herein, the prevailing party shall be entitled to reasonable attorney's fees in addition to costs and necessary disbursements incurred in such action. 20. Governing Law. This Agreement shall be governed by the laws of the State of Idaho. 21. Assignment or Transfer of Agreement Prohibited. Artist agrees that an essential element of this Agreement is the skill and creativity of Artist and any assistants employed or utilized by Artist. Artist shall, therefore, not in any manner, directly or indirectly, by operation of law or otherwise, hypothecate, assign, transfer, or encumber this Agreement or any portion thereof or any interest therein, in whole or in part, to any third party without prior written consent of Purchaser. Artist shall not subcontract outside of Artist's company any work to be done pursuant to this Agreement without the written consent of Purchaser, except at Artist's sole risk. 22. Binding Agreement. This Agreement shall be binding on the parties hereto and their heirs, executors, administrators, successors, and assigns; provided, however, neither this Agreement nor any part hereof, except for monies previously earned and due to Artist may be assigned to anyone without the written consent of Purchaser. 23. City Council Approval Required. The validity of this Agreement shall be expressly conditioned upon City Council action approving the Agreement. Execution of this Agreement by the persons referenced below prior to such ratification or approval shall not be construed as proof of validity in the absence of Meridian City Council approval. Contract to Commission an Artwork page 6 of 9 IN WITNESS WHEREOF, the parties hereto have signed this Agreement on this day of January, 2006. Purchaser: City of Meridian ~ """... """" \,\\ '" MayorTam e Weerd ....,,~~ r:Ii ~III",,; ~ Á' ".- $ u'r;~),. ~ ~ ~- '~6 -; ~ ~ Attest: g C'ié' ¡'- ~ A ~ """ ¡';)iI~' -..I ¿? § . ; ~ "Q; ::: ~Þ~(9--~-yo ~r1S'- .pi -:0.. ':"'f ~ 'r' .:- City Clerk '-""'// ~'l. \\\\" III \\\ 111111111111\\\ Artist: Sculptures by BJH LLC Contract to Commission an Artwork page 7 of 9 EXHIBIT" A" "II, ", 'Ii' <... , ' , :, Contract to Commission an Artwork page 8 of 9 EXHIBIT "B" I I I a f- I z I UJ I IX: :::' I UJ z ~ I u.. I c( 0 UJ a " 0 UJ IX: " ~ f- W !!1 ~ 1:'i (E) KFC BUILDING /0...'- " ~ ~~ (E) TREE TO BE RELOCATED. VERï~ PROPOSED PLA ERISIGN. ORIENT FRONT F SIGN TO SOUTH DI CTION AS SHOWN (B1 SITE PLAN SCALE: 1" = 20'-0" Contract to Commission an Artwork page 9 of9