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HomeMy WebLinkAboutAcceptance Agreement with Theodore Smith for Display of Artwork in Initial Point GalleryACCEPTANCE AGREEMENT: DISPLAY OF ARTWORK IN INITIAL POINT GALLERY, MERIDIAN CITY HALL This ACCEPTANCE AGREEMENT: DISPLAY OF ARTWO IN INITI~ POINT GALLERY, MERIDIAN CITY HALL ("Agreement") is made on the day of , 2013 ("Effective Date"), by and between the City of Meridian, a municipal corporation organ' ed under the laws of the State of Idaho ("City"), and Theodore Smith, an individual person ("Artist"). (City and Artist may hereinafter be collectively referred to as "Parties.") WHEREAS, the City desires that public art will be a component of Meridian City Hall and to that end, the Meridian Arts Commission issued the Call to Artists attached hereto as Exhibit A, seeking proposals for the display of artwork in Initial Point Gallery, an art gallery on the third floor of Meridian City Hall, the address of which is 33 E. Broadway Ave., Meridian, Idaho ("Initial Point Gallery"); WHEREAS, in response to the Call to Artists, Artist did submit a proposal, comprised of the materials attached hereto as Exhibit B ("Proposal"), for the display of artwork in Initial Point Gallery; WHEREAS, on November 8, 2012, the Meridian Arts Commission ("Commission") reviewed the responses to the Call to Artists, selected Artist's work for display based on the Proposal, and recommended to the Meridian City Council that Artist's artwork, as depicted in the Proposal, be displayed in Initial Point Gallery; WHEREAS, at its regular meeting on December 18, 2012, by the passage of Resolution no. 12-899, the Meridian City Council adopted such recommendation and directed the Commission to work with Artist to establish a display of Artist's artwork in Initial Point Gallery; and WHEREAS, the Parties acknowledge that Meridian City Hall is primarily a place of public business, that Initial Point Gallery is a public place, and that while the City seeks to encourage artistic expression and public dialogue, the City must simultaneously ensure that Meridian City Hall is a place where citizens, employees, and visitors of diverse ages and perspectives feel welcome and comfortable; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and agreed, and in consideration of the mutual promises and covenants herein contained, the Parties agree as follows: I. SCOPE OF SERVICES. Artist shall personally deliver to Initial Point Gallery, on May 31, 2013, at 9:00 a.m., or at such time and date as is mutually agreed-upon by the Artist and the Gallery Curator, artwork which shall substantially conform to the description of such artwork set forth in Exhibit B hereto. Artist shall be responsible for hanging such artwork on May 31, 2013 at the direction of the Gallery Curator; shall allow the display of such work in Initial Point Gallery from May 31, 2013 to July 2, 2013, in accordance with the terms of this Agreement; and shall be responsible for removal of such artwork on July 2, 2013, at 9:00 a.m., or at such time and date as is mutually agreed upon by the Artist and the Gallery Curator. ACCEPTANCE AGREEMENT INITIAL POINT GALLERY DISPLAY PAGE I II, COMPENSATION AND SALE OF ARTWORK. A. No compensation. Artist shall display Artist's artwork in Initial Point G 1 a lery at the pleasure of the Meridian City Council. City shall not provide com ensation to Artist f P or services, work, and/or any activity undertaken pursuant to or related to this A reement. g B, Sale of artwork. Artist may, at the direction of and in the manner established b t y he Gallery Curator, passively offer the artwork on display in Initial Point Galle for sale. No rice shall . ~' p be displayed on or be proximate to any piece on display in Initial Point Galle . Ci ersonn rY ty P el shall not facilitate in any way the sale of Artist's work; any transaction related to the sale of artwork shall be handled solely by Artist. Artist acknowledges the Commission's re uest that • q Artist voluntarily donate to the Commission twenty percent (20%) of proceeds from an .. Y artwork sold due to its display in Initial Point Gallery. Upon the sale of a iece of artwork on . .. p display in Initial Point Gallery, Artist may remove such artwork from the Galle rovided that • ~' p Artist replaces the removed piece with another piece of artwork within twenty-four 24 hours ~) of such removal. Artist shall coordinate the removal, replacement, and/or substitution of an • ., Y and all artwork with the Gallery Curator prior to such activity. III. TIME OF PERFORMANCE. Artist shall provide services described in this Agreement in a timely manner, as described herein. Artist acknowledges and agrees that time is strictly of the essence with respect to this Agreement, and that the failure to timely perform any of the obligations hereunder shall constitute a default of this .Agreement. IV. INSTALLATION. A. Coordination with Curator. Prior to the installation, removal, replacement, and/or substitution of the display in Initial Point Gallery or-any portion or component thereof, Artist shall coordinate any and all such activity with the Gallery Curator. B. Inspection of display. Prior to or after installation, the Gallery Curatorand/or the City may inspect and/or review the artwork proposed by Artist for display in Initial Point Gallery to ensure compliance with all criteria set forth in the Call to Artists attached hereto as Exhibit A, and the Application and Acknowledgements Form attached hereto in Exhibit B, as well as to ensure that such artwork maybe safely and appropriate) dis la ed in Initial Point Galle . If Y p Y ry the Gallery Curator or the City concludes that the display or any portion or component thereof does not meet the criteria set forth in Exhibits A and B, does not reflect artwork as described and depicted in the Proposal set forth in Exhibit B, or cannot be safely and/or appropriately displayed in Initial Point Gallery, the Gallery Curator or the City may require the immediate removal of such artwork from Initial Point Gallery. Further, the Gallery Curator or the City may require the immediate removal of such artwork from Initial Point Gallery where such removal serves the best interest of the City. ACCEPTANCE AGREEMENT INITIAL POINT GALLERY DISPLAY PAGE 2 V. DISPLAY. A. Original artwork, Artist warrants that any and all artwork rovided b ' .. p y Artist for display in Initial Point Gallery shall be, and is, original work conceived and created b Arti y st. B, Photographs of artwork. City may photograph the artwork dis la ed in Initial Poi p y nt Gallery, as City may desire for purposes of advertising, marketing, and ublic information. Where p practicable and to the extent of City's authority, Artist shall be acknowled ed on each such .. g photograph to be the creator of the original subs ect thereof, rovided that hoto ra hic p p g p reproductions of artwork shall not be identified as or represented to be the finished artwork. C. Use of Artist's name. Artist hereby conveys to City permission to use Artist's name for purposes of advertising, marketing, and public information, without violation of Artist's ri hts , g of privacy or any other rights Artist may possess under this Agreement, provided that Ci shall tY not use Artist s logo, if any, for any purpose without the express, written permission of Artist. D, Use of City's name. City hereby conveys to Artist permission to use City's name for oses .. ~ p~ of advertising, marketing, and public information, without violation of City s rights of rivac p Y or any other rights City may possess under this Agreement, provided that Artist shall not use City's logo for any purpose without the ex ress, written ermission of the Ma or's Executiv p p y e Assistant. E. Removal of artwork by City, City shall have the right to remove Artist's artwork from public display at any time and for any reason. Such removal may be temporary or permanent in nature. Where such artwork is or is intended to be removed from public display for longer than forty-eight (48) hours, City shall notify Artist in the manner set forth herein. While it is intended that Artist's artwork will be displayed in Initial Point Gallery for the period set forth herein, this period maybe shortened by City for any reason, without notice to the Artist. F, Removal of artwork by Artist. Artist shall coordinate with the Gallery Curator the removal, replacement, and/or substitution of any and all artwork prior to such activity, whether such activity is necessary due to the sale of a piece or for any other reason. G. Simultaneous display. City may elect to display the work of more than one Artist or Organization in Initial Point Gallery at any time, at the City's sole discretion. The manner and arrangement of the display(s) in Initial Point Gallery shall be determined by the Gallery Curator. VI. INDEMNIFICATION, WAIVER, AND INSURANCE. A, Indemnification. Artist shall, and hereby does, indemnify, save, and hold harmless the City and any and all of its employees, agents, volunteers, and/or elected officials from an and all Y losses, claims, and judgments for damages or injury to persons or property, and from any and all losses and expenses caused or incurred by Artist or Artist's servants, agents, employees, guests, and/or invitees. ACCEPTANCE AGREEMENT INITIAL POINT GALLERY DISPLAY PAGE 3 B. Waiver. Artist shall, and hereby does, waive an and all claims ' Y and recourse against City, including the right of contribution for loss and dams a to ersons or ro ' ' g p p perty arising from, growing out of, or in any way connected with or incident to Artist's erformance of thi p s Agreement, whether such loss or damage maybe attributable to known or uilkri ' ' own conditions, except for liability arising out of the tortious conduct of Ci or its officers a ents r tY g o employees. C. Insurance Artist's responsibility. City shall not rovide insurance to cover loss p ,theft, or damage of artwork displayed in Initial Point Gallery or to cover an activi undertaken . Y tY by Artist in the furtherance of Artists' rights or obligations described herein. Insurance of the artwork; of the Artist's person, property, or interests; and/or of the Artist's em 1 p oyees or agents shall be the sole responsibility of Artist. Artist shall obtain all necess insurance as ma be . ~' Y required in order to protect Artist s insurable interests for its rights and obli ations described . g within this Agreement, including, but not limited to, liability insurance, automobile insurance worker's compensation insurance, and/or insurance of the artwork to be dis la ed in Initial . pY Point Gallery. Artist shall bear any and all risks of, and actual, loss of, theft of, and/or lama e g to the artwork prepared for, transported to, transported from, installed or hun in, and/or . .. g displayed in Initial Point Gallery. VII. TERMINATION. A. Termination for cause. If City determines that Artist has failed to comply with an term or .. Y condition of this Agreement, violated any of the covenants, agreements, and/or sti ulations of . p this Agreement, falsified any record or document required to be prepared under this A reement, . g engaged in fraud, dishonesty, or any other act of misconduct in the performance of this Agreement; or if either Party willfully or negligently defaults in, or fails to fulfill, its material 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 shall specify the grounds for termination. The defaulting party shall have twenty-four (24) hours after receipt of such notice to cure the default. If the default is not cured within such period, this Agreement shall be terminated upon mailing of written notice of such termination by the terminating party. B. Termination without cause. City may immediately terminate this Agreement for any reason at any time without prior notice to Artist. C. Termination upon death or incapacity of Artist. This Agreement shall automatically terminate upon the death or incapacity of Artist. D. Non-waiver. A waiver of any breach or default of any provision of this Agreement shall not be construed as a waiver of a breach of the same or any other provision hereof. ACCEPTANCE AGREEMENT INITIAL POINT GALLERY DISPLAY ~ PAGE 4 VIII. GENERAL PROVISIONS. A, Relationship of Parties. It is the express intention of Parties that Artist is n ' a independent party and not an employee, agent, joint venturer, or partner of Ci . Nothin in this A . tY g greement shall be interpreted or construed as creating or establishin the relationshi of em to er g p p y and employee between Artist and City or between Artist and an official a ent or em to ee Y ~ g p y of City. Both parties acknowledge that Artist is not an emplo ee of Ci .Artist shall retain th . Y tY e right to perform services for others during the term of this A reement. g B, Compliance with law. Throughout the course of this A reement, Artist shall com 1 with g p Y anY and all applicable federal, state, and local laws. C. Non-Discrimination. In fulfilling or exercising any right or obli ation under this A reement . g g Artist shall not discriminate against any person as to race, creed, reli ion, sex, a e national .. g g~ origin, sexual orientation or any physical, mental, or sensory disability, D. Entire agreement. This Agreement constitutes the entire understandin between the Parties. g This Agreement supersedes any and all statements, promises, or inducements made b either Y party, or agents of either party, whether oral or written, and whether previous to the execution hereof or contemporaneous herewith. The terms of this Agreement ma not be enlar ed Y g~ modified or altered except upon written agreement signed by both parties hereto. E. Agreement governed by Idaho law. The laws of the State of Idaho shall overn the validi . g tY~ interpretation,perfoananceand enforcement of this Agreement. Venue shall be in the courts of Ada County, Idaho. F, Cumulative rights and remedies. All rights and remedies herein enumerated shall be cumulative and none shall exclude any other right or remedy allowed by law. Likewise, the exercise of any remedy provided for herein or allowed by law shall not be to the exclusion of any other remedy. G. Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remainder of this Agreement shall not be affected. H. Successors and assigns. Artist shall not subcontract or assign any of Artist's obligations under this Agreement that require or that may require Artist's artistic talent or expertise. Artist may subcontract or assign obligations that do not require Artist's artistic talent or expertise. All of the terms, provisions, covenants and conditions of this Agreement shall inure to the benefit of, and shall be binding upon, each party and their successors, assigns, legal representatives, heirs, executors, and administrators. I. Notice. Any and all notice required to be provided by the Parties hereto, unless otherwise stated in this Agreement, shall be in writing and shall be deemed communicated upon mailing by United States Mail, addressed as follows; ACCEPTANCE AGREEMENT INITIAL POINT GALLERY DISPLAY PAGE 5 Artist: Theodore Smith 12 N. Jefferson Street Nampa, Idaho 83651 208-249-7702 tj smithbirdcarver@cable Gallery Curator: Dwight Williams Meridian Arts Commission 33 E. Broadway Ave. Meridian, Idaho 83642 ;one.net (208) 887-6473 dwight5332@q.com C Emily Kane, Deputy City Attorney City of Meridian 33 E. Broadway Ave. Meridian, Idaho 83642 (208) 898-5506 ekane @meridiancity. org Any party may change its respective address for the purpose of this paragraph by giving written notice of such change in the manner herein provided. J. 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. 4~~- IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this ~~ day of , 2013. CITY OF MERIDIAN: BY: ~ ~-~ ~'-~', Tammy de Wye ,Mayor f Attest: aycee man, City Clerk a1~.TL'fl AU~;UST _~,~ r ... 9GW ;~ C:Ity 01~ ;' " "E IDIAN~-- J IDAHO ~~, SEAT. ,,, f~ ~~P cr tAe TAE ~S~~ ACCEPTANCE AGREEMENT INITIAL POINT GALLERY DISPLAY PAGE 6