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HomeMy WebLinkAbout21-137 - Elizabeth Gahan Studios, LLC - Artist Services: Ground MuralsCity of Tukwila 6200 Southcenter Boulevard, Tukwila WA 98188 Agreement Number: 21-137(a) Council Approval N/A CONTRACT FOR SERVICES Amendment #1 Between the City of Tukwila and Elizabeth Gahan Studios, LLC That portion of Contract No. 21-137 between the City of Tukwila and Elizabeth Gahan Studios, LLC is hereby amended as follows: Section 2: Compensation and Method of Payment, shall be modified as follows: The payment schedule has been amended as provided in Exhibit "B", attached hereto, to account for work performed in 2021 (Deliverables #1, #2, & #3) and work that will be performed in 2022 (Deliverables #4 & #5). Section 4: Duration of Agreement; Time for Performance. The time for completion of the project is extended from December 31, 2021 to December 31, 2022. All other provisions of the contract shall remain in full force and effect. Dated this 22nd day of November CITY OF TUKWILA , 20 21 CONSULTANT eicii:-Ki<crZie?.(ierde Tracy Gallaway, Parks & Recreation Director Elizabeth Gahan, Artist Elizabeth Gahan Studios, LLC CA Reviewed May 2020 Page 1 of 2. City of Tukwila 6200 Southcenter Boulevard, Tukwilla WA 98188 Agreement Number: 21-137(a) Exhibit 8 - Project Schedule, Compensation and Payments The Scope of Service is divided into tasks with identified activities, deliverables and payments and an estimated budget breakdown for all services listed herein. Deliverable #1 — August 5, 2021 • Signed contract • Invoice the City. Deliverable #2 — August 5, 2021 • Complete, review and approve all designs to submit for fabrication with Ennis -Flint Inc. • Complete Ennis -Flint order. • Invoice the City. Deliverable #3 - October 30, 2021 • Project management and coordinate install plan with the City. • Complete artworks install at the intersection of Baker Boulevard and Christensen Road. • Invoice the City. Deliverable #4 - October 30, 2022 • Project management and coordinate install plan with the City. • Complete artworks install on the sidewalks in the Southcenter District at selected locations. • Invoice the City. Deliverable #5 - December 31, 2022 • Artwork documentation • Final report including all project information for archiving, promotional and maintenance purposes. • Invoice the City. Deliverable Date Amount Notes 1. Signed Contract August 5, 2021 $ 3,250.00 2. Completed Design & Ennis -Flint Order August 5, 2021 $ 3,250.00 *City purchase from Ennis -Flint 3. Project Management & Complete Install of artwork at Baker Blvd. & Christensen Rd. October 30, 2021 $ 2,750.00 4. Project Management & Complete Install Of Artwork on Sidewalks at Selected Locations October 30, 2022 $ 2,750.00 6. Documentation & Final Report December 31, 2022 $1,000.00 Total $13,000.00 CA Reviewed May 2020 Page 2 of 2. City of Tukwila 6200 Southcenter Boulevard, Tukwila WA98188 CONTRACT FOR ARTIST SERVICES Contract Number: 21-137 Council Approval N/A This Agreement is entered into by and between the City of Tukwila, Washington, a non -charter optional municipal code city hereinafter referred to as "the City," and Elizabeth Gahan Studios, LLC hereinafter referred to as "the Artist," whose principal office is located at 8450 9th Ave SW, Seattle, WA 98106. WHEREAS, the City has determined the need to have certain services performed for its citizens but does not have the manpower or expertise to perform such services; and WHEREAS, the City desires to have the Artist perform such services pursuant to certain terms and conditions; now, therefore, IN CONSIDERATION OF the mutual benefits and conditions hereinafter contained, the parties hereto agree as follows: Scope and Schedule of Services to be Performed by Artist. The Artist shall perform those services to create the Artwork described on Exhibit A attached hereto and incorporated herein by this reference as if fully set forth. In performing such services, the Artist shall at all times comply with all Federal, State, and local statutes, rules and ordinances applicable to the performance of such services and the handling of any funds used in connection therewith. The Artist shall request and obtain prior written approval from the City if the scope or schedule is to be modified in any way. 2. Compensation and Method of Payment. The City shall pay the Artist for services according to Exhibit B which identifies the project schedule, scope of services, and payment distribution. 3. Artist Budaet. The Artist shall apply the funds received under this Agreement within the maximum limits set forth in this Agreement. The Artist shall request prior approval from the City whenever the Artist desires to amend their budget in any way. 4. Duration of Aareement. This Agreement shall be in full force and effect for a period commencing August 1, 2021, and ending December 31, 2021, unless sooner terminated under the provisions hereinafter specified. 5. Independent Contractor. Artist and City agree that Artist is an independent contractor with respect to the services provided pursuant to this Agreement. Nothing in this Agreement shall be considered to create the relationship of employer and employee between the parties hereto. Neither Artist nor any employee of Artist shall be entitled to any benefits accorded City employees by virtue of the services provided under this Agreement. The City shall not be responsible for withholding or otherwise deducting federal income tax or social security or contributing to the State Industrial Insurance Program, or otherwise assuming the duties of an employer with respect to the Artist, or any employee of the Artist. 6. Indemnification / Hold Harmless. Artist shall defend, indemnify and hold the City, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising out of or resulting from the acts, errors or omissions of the Artist in performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. However, should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or {KZ S2cA310Dtiak,Mtlifl O01/ } Paye 1 of 7 1/1 damages to property caused by or resulting from the concurrent negligence of the Artist and the City, its officers, officials, employees, and volunteers, the Artist's liability, including the duty and cost to defend, hereunder shall be only to the extent of the Artist's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the Artist's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement. 7. Insurance. A. Insurance Term. Artist shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Artist, its agents, representatives, or employees. B. No Limitation. Artist's maintenance of insurance as required by the Agreement shall not be construed to limit the liability of the Artist to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. C. Minimum Scope of Insurance. Artist shall obtain insurance of the types and coverage described below: 1. Automobile Liability insurance covering all owned, non -owned, hired and leased vehicles. Coverage shall be at least as broad as Insurance Services Office (ISO) form CA 00 01. 2. Commercial General Liability insurance shall be at least as broad as ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, stop -gap independent contractors and personal injury and advertising injury. The City shall be named as an additional insured under the Artist's Commercial General Liability insurance policy with respect to the work performed for the City using an additional insured endorsement at least as broad as ISO endorsement form CG 20 26. D. Minimum Amounts of Insurance. Artist shall maintain the following insurance limits: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. 2. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. E. Other Insurance Provision. Artist's Automobile Liability and Commercial General Liability insurance policies are to contain, or be endorsed to contain that they shall be primary insurance as respect the Public Entity. Any insurance, self-insurance, or self-insured pool coverage maintained by the Public Entity shall be excess of the Consultant's insurance and shall not contribute with it. F. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. G. Verification of Coverage. Artist shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Agreement before commencement of the work. H. Notice of Cancellation. Artist shall provide the City with written notice of any policy cancellation within two business days of their receipt of such notice. I. Failure to Maintain Insurance. Failure on the part of Artist to maintain the insurance as required shall constitute a material breach of contract, upon which the City may, after giving five business days' notice to Artist to correct the breach, immediately terminate the Agreement or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any {KZS 310 ;M1 W'1 O01/ } Paye 2 of 7 sums so expended to be repaid to the City on demand, or at the sole discretion of the City, offset against funds due the Artist from the City. J. City Full Availability of Artist Limits. If Artistt maintains higher insurance limits than the minimums shown above, the City shall be insured for the full available limits of Commercial General and Excess or Umbrella liability maintained by Artist, irrespective of whether such limits maintained by Artist are greater than those required by this Agreement or whether any certificate of insurance furnished to the City evidences limits of liability lower than those maintained 8. Record Keeaina and Reaortina. A. The Artist shall maintain accounts and records, including personnel, property, financial and programmatic records which sufficiently and properly reflect all direct and indirect costs of any nature expended and services performed in the performance of this Agreement and other such records as may be deemed necessary by the City to ensure the performance of this Agreement. B. These records shall be maintained for a period of seven (7) years after termination hereof unless permission to destroy them is granted by the office of the archivist in accordance with RCW Chapter 40.14 and by the City. 9. Audits and Insaections. The records and documents with respect to all matters covered by this Agreement shall be subject at all times to inspection, review or audit by law during the performance of this Agreement. 10. Termination. This Agreement may at any time be terminated by the City giving to the Artist thirty (30) days written notice of the City's intention to terminate the same. Failure to provide the Artwork on schedule may result in contract termination. Either party may terminate this Agreement, without recourse by the other, where performance is rendered impossible or impracticable for reasons beyond such party's reasonable control such as but not limited to acts of nature; war or warlike operations; civil commotion; riot; labor disputes including strike, walkout, or lockout; sabotage; or superior government regulation or control; or the incapacity or unforeseen disability of the Artist. 11. Discrimination Prohibited. The Artist, with regard to the work performed under this Agreement, will not discriminate on the grounds of race, religion, creed, color, national origin, age, veteran status, sex, sexual orientation, gender identity, marital status, political affiliation, the presence of any disability, or any other protected class status under state or federal law, in the selection and retention of employees or procurement of materials or supplies. 12. Assianment and Subcontract. The Artist shall not assign or subcontract any portion of the services contemplated by this Agreement without the prior written consent of the City. This provision shall not prohibit the Artist from employing qualified personnel for work under the Artis's direct supervision regarding the Artwork, except that the Artist shall not permit any such person to acquire any copyright, ownership interest, lien right, or other property interest in the Artwork. 13. Entire Agreement: Modification. This Agreement, together with exhibits, attachments or addenda, represents the entire and integrated Agreement between the City and the Artist and supersedes all prior negotiations, representations, or agreements written or oral. No amendment or modification of this Agreement shall be of any force or effect unless it is in writing and signed by the parties. 14. Severability and Survival. If any term, condition, or provision of this Agreement is declared void or unenforceable or limited in its application or effect, such event shall not affect any other provisions hereof and all other provisions shall remain fully enforceable. The provisions of this Agreement, which by their sense and context are reasonably intended to survive the completion, expiration or cancellation of this Agreement, shall survive termination of this Agreement. {xzs2cA310;Mtill wool/ } Paye 3 of 7 15. Notices. Notices to the City of Tukwila shall be sent to the following address: Tukwila Parks & Recreation 12424 42nd Ave S. Tukwila, Washington 98168 Notices to Artist shall be sent to the address provided upon the Artist's signature line below. 16. Applicable Law: Venue: Attorney's Fees. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In the event any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties specifically understand and agree that venue shall be properly laid in King County, Washington. The prevailing party in any such action shall be entitled to its pre -judgment and post -judgment attorney's fees and costs of suit, and any other damages and remedies the court deems just and proper. 17. Proarietary Riahts and Riahts of Reproduction. A. After delivery of the Artwork and acceptance by the City, Artwork created under this Agreement shall be the sole property of the City. None of the Artist's works provided herein will be deemed "works for hire" for purposes of copyright law and the copyright will belong solely to the Artist. To the extent that any of the Artist's works hereunder include materials subject to patent, trade secret or other proprietary right protection, the City hereby irrevocably assigns to the Artist all its right, title and secrets and other proprietary rights therein (including renewals thereof). B. The Artist expressly reserves every right available to him/her at common law or under the Federal Copyright Act, including moral rights under the Visual Artists Rights Act, 17 USC 106A, to control the making and dissemination of copies or reproductions of any items that are conceived, made, discovered, written or created by the Artist pursuant to this Agreement, except as those rights are expressly limited by this Agreement. The Artist authorizes the City and its assignors to make, publicly display, and distribute any and all photographs, copies, drawings and other two-dimensional reproductions of any Artwork produced pursuant to this Agreement without prior consent of the Artist, if for the sole use and benefit of the public, not for financial gain, including but not limited to advertising, brochures, informational and educational documents, presentations and similar material, but no other use is permitted without prior consent of the Artist. C. The City shall assure that the original Artwork and all reproductions, copies and derivative works by the City of the Artist's work produced pursuant to this Agreement contain a credit to the Artist and a copyright notice substantially in the following form: "© or Copyright, date of the first publication or date of creation, Artist's name." [THIS PART INTENTIONALLY BLANK — SIGNATURE BLOCKS ON NEXT PAGE] {KZS 310;MR'1 O01/ } Paye 4 of 7 D. Non-destruction/Alteration: The City agrees not to purposefully destroy, alter, modify or otherwise change the Artwork in any way whatsoever. If any alteration occurs after the receipt of the Artwork by the City, whether intentional or accidental, the Artist has the right to request that the Artwork shall no Ionger be represented to be the Artwork of the Artist, DATED this 2nd day of September, 2021. CITY OF TUKWILA eSignecl via SeamlessDocs.com Tracy Gailaway, Acting Parks & Recreation Director ARTIST eSignecl via SeamlessDocs.com �e:z-ce,Gmth,�Y�a� Key Elizabeth Gahan, Artist Email: ergahan@gmail.com Address: 845O9th Ave SW, Seattle, WA 98106 Phone Number: 858-361-9972Exhibit A - General Terms and Scope of Services A. Project Description Artist has been commissioned based upon designs submitted to the City for public art ground murals at the intersection of Baker Boulevard and Christensen Road and on the sidewalks in the Southcenter District. It is understood the Artist will make every effort to create the Artwork in the spirit of the design, but that the creative process, further input from the City, or new information may alter the final renderings. Artist, therefore, with approval of the City, which approval shall not be unreasonably withheld, may make necessary design modifications as the Artwork progresses. B. Design Description Intersection Ground Mural: ilifiripergeWcia 117, Piteg Sidewalk Ground Murals: C. Compensation The City shall pay the Artist for satisfactory completion of the ARTIST'S Scope of Services in the total fixed amount of $13,000 (thirteen thousand dollars and zero cents) which may include, but is not limited to, artist fees, project management, travel, and expenses to the artist. The City will maintain a separate budget for this project for Materials, Contingency and Professional Artwork Documentation not to exceed a total amount of $66,200.00 (sixty-six thousand two hundred dollars and zero cents). The City budget will cover project expenses, such as, but not limited to, purchasing all Thermoplastic artwork materials directly from the manufacturer, shipping, professional artwork documentation, project cost overruns, install templates, and install equipment. {KZS2c5SMPY1 001/ } Page 6 of 7 D. Artist Contribution • Complete, review and approve all designs to submit for fabrication with Ennis -Flint Inc. • Project Management • Work with the City to coordinate artwork placement and install • Oversee artwork install and documentation • Other tasks for the completion and documentation of final artwork E. City Contribution • Ground prep for artwork install. • Permitting, traffic plan and street closure as necessary. • Crew and equipment for artwork install. • Purchase all Thermoplastic artwork materials directly from the manufacturer including shipping and tax. • Take possession of the Thermoplastic materials upon arrival from the manufacturer. • Professional artwork documentation • Maintain a contingency budget for the use of purchasing install templates, install equipment and project cost overruns as needed. F. Completion and Delivery The completion of Deliverables by the designated deadlines as outlined in Exhibit B is contingent on the City's timely contributions as listed in Exhibit A, Section E. The City will not unnecessarily withhold services or payment to third parties for the goods and services necessary to complete the deliverables as outlined herein. Upon completion of the Artwork, the City shall own the Artwork, including the physical manifestation of the final design, and the City will be responsible for all maintenance and care. G. Limited Lifespan Artwork The Artist and City recognizes that any surface treatments (murals) have a limited lifespan. Thermoplastic ground murals have a relatively long limited lifespan, the duration of which depends on the location conditions, maintenance, and restoration. Artist understands that the City retains the right to review the efficacy, cultural value, and associated costs of maintaining and conserving the Artwork. The City and the project partners reserve the right to conserve, re -install or decommission the Artwork at the City's discretion. The City will make a reasonable effort to maintain the Artwork during the limited lifespan as determined by the Manufacturer's product information and warrantee of the materials used to fabricate the artwork. {KZS 3 b(; 1 001/ } Page 7 of 7 Exhibit B - Project Schedule, Compensation and Payments The Scope of Service is divided into tasks with identified activities, deliverables and payments and an estimated budget breakdown for all services listed herein. Deliverable #1 — August 5, 2021 • Signed contract • Invoice the City. Deliverable #2 — August 5, 2021 • Complete, review and approve all designs to submit for fabrication with Ennis -Flint Inc. • Complete Ennis -Flint order. Vendor will invoice the City directly for the total cost of the order including materials, shipping, and tax. • Invoice the City. Deliverable #3 - October 30, 2021 • Project management and coordinate install plan with the City. • Complete artwork install. • Invoice the City. Deliverable #4 - December 31, 2021 • Coordinate artwork documentation • Final report including all project information for archiving, promotional and maintenance purpose. • Invoice the City. Deliverable Date Amount Notes 1. Signed Contract August 5, 2021 $3,250.00 2. Completed Design & Ennis -Flint Order August 5, 2021 $3,250.00 *City purchase from Ennis -Flint Inc. 3. Project Management & Complete Install October 30, 2021 $3,250.00 4. Documentation & Final Report December 31, 2021 $3,250.00 Total $13,000.00 {KZ S3b(;lool/ } Page 8 of 7