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HomeMy WebLinkAbout19-149 - Sammy Creach - TIB Mural Project19-149 Council Approval N/A City of Tukwila Number: 6200 Southcenter Boulevard, Tukwila WA 98188 CONTRACT FOR ARTIST SERVICES Contract 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 Sammy Creach, ( hereinafter referred to as "the Artist"), whose principal office is located at 708 S 26th Avenue, Yakima, WA 98902. 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: 1. Scope and Schedule of Services to be Performed by Artist. The Artist shall design and produce the artwork (hereinafter "Artwork") and perform all other work described in Exhibit A attached hereto and incorporated herein by this reference as if fully set forth. In performing such services, the Artist shall always 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 rendered according to the rate and method set forth on Exhibit B attached hereto and incorporated herein by this reference. The total amount to be paid shall not exceed $400.00. 3. Artist Budget. 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 its budget in any way. 4. Duration of Agreement. This Agreement shall be in full force and effect for a period commencing September 20, 2019 and ending October 31, 2019, 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 Contractor, or any employee of the Artist. Artist is engaged as an independent CUr8[8CtO[ and will be responsible for any federal, state and kJc@| taxes and fees applicable to payment. Artist shall furnish all supervision, OOUteh8|S' labor, equipment, eupp|ien, and all other incidentals, except 8mspecifically provided herein. Artist and its sub -contractors and employees are not employees of the City and are not eligible for any benefits through the City, including without limitation of federal euoia| security, health benefits, workers' connpengsdion, unemployment compensation, and/or retirement benefits. Artist has been commissioned based upon a design submitted tothe City for'pub|ic'art. |tiaunderstood the Artist will make every effort tocreate the Artwork inthe spirit of the design, but that the necessity for continuous artistic refinement and development may alter the final rendering. Artist, therefore, with approval Vf the City, which approval Sh@|| not be unreasonably withheld, may make necessary design modifications @sthe Artwork progresses solong asgeneral concept and materials remain the same. 6' Indemnification. The Artist shall defend, indemnify and hold the City, its officers, officials, employees and V0iUOt8erS harmless from any and all c|8iO0s, injuries, d@[O8g8S' |OSSes or suits including attorney fees, @hSiDg Out of or in connection with the performance of this Agnee[DeDt, except for injuries and damages caused bythe sole negligence ofthe City. Should a court of competent jurisdiction determine that this Agreement is subject to RCVV4.24.115. then, in the event of |i3bi|dv for damages arising out Of bodily injury to persons or daOl@AeS 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 hereunder Sh8|| 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 |DSU[@DC8' Title 51 F|CVV' sD|8/V for the purposes of this indemnification. This waiver has been nnutum|k/ negotiated by the parties. The provisions Dfthis section shall survive the expiration O[termination ofthis Agreement. 7' Record KeeDimgmnd ReDortimq. A. The Artist Sh@U n0@iOLGiO 8CCOUDiS and records, including pe[SOOD8[ property, fiDgD(ja) and prng[8[OrD@tiC neCDndS which sufficiently and properly reflect all direct and indirect costs of any OEtUFe expended and services performed inthe performance of this Agreementand other such records oamay be deemed necessary by the City to ensure the performance of this Agreement. B. These records shall be maintained for a period Of S8VeO (7) years after termination hereof unless pe[DliSSiDD to destroy them is granted by the office of the archivist in accordance with F|CVVChapter 40.14and bythe City. 8' Audits and |nsr)acXons' The records and documents with respect to all matters covered by this Agreement shall besubject @tall times hJ inspection, review D[audit by law during the performance of this Agreement. 9' Termination. This Agreement may at any time be terminated by the City giving to the Artist thirty /30\ days written notice of the CUn'S intention to terminate the same. Failure to provide products on schedule may result in contract termination. 10. Force A0aiemre. Either party may terminate this Agreement, without recourse by the other, where performance isrendered impossible orimpracticable for reasons beyond such podv'sreasonable control such as but not limited to 2CiS Of nature; VVG[ or warlike operations; civil CODlrDDtioD; riot; |@bD[ disputes including strike, walkout, or lockout; sabotage; or superior government regulation or control. 11.Discrimination Prohibited. The Consultant, with regard to the work performed bvitunder this Aoreennent, will not discriminate on the grounds of race, uy||gion, oreed, color, national onQ|n, age, veteran status, sex, sexual ohentadon, gender identity, marital status, political affiliation, the selection and retention of employees or procurement of materials or supplies. 12.Assignment and Subcontract. The Artist shall not assign orsubcontract any portion ofthe S8rViDeS contemplated by this Ao[e8OO8Dt VVKhOLd the vx[bteO consent of the City. This p[OViSiOD shall not prohibit the Artist from employing qualified personnel for work under the Artist'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 attachments or addenda, represents the entire and integrated Agreement between the City and the Artist and supersedes all prior O8gDti@tiDOS' representations, Or @gre80eOiS written or O[8i NO @DleDd0eOt or modification of this Agreement shall be of any force or effect unless it is in writing and signed by the parties. 14. S$verabi|itV and Survival. If any tenn, 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 p[OViSiDOS Sh@!| remain fully eDf0[C83b|e. The provisions of this AgreeDl8Ot. which by their sense and context are F88SDO@b|y intended to survive the cO0p|edoO. expiration or c8Dce||8boD of this Agreement, ShG|| survive te[OOiO8tiDO of this Ao[ee[DeOL 15. Notices. Notices to the City of Tukwila shall be sent to the following address: City Clerk, City ofTukwila 020J8outhcenterBlvd. Tukwila, Washington 0O1O0 Notices to the Artist ShgU be sent to the address provided by the Artist upon the signature line below. 16. Applicable Law: Venue: AttorneV's Fees' This Agreement shall be governed by and construed in @CCOPd@OCe with the |3VVS of the State of Washington. In the evert any suit, @d3kradiOD. or other proceeding is iOSLi[UL8d to enforce any term of this Aon8eDleDt, the parties specifically understand and agree that venue shall be properly laid in King County, VV8ShinQtVD. The prevailing party in any such action shall b8entitled tDits @ttO[Dey'Sfees and costs Ofsuit. 17. Proprietary Riqhts and Rights of Reproduction. A.After delivery ofthe Artwork and acceptance o{the Artwork bvthe 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 that extent that any of the Artist's works hereunder include materials subject to patent, trade secret D[other proprietary right protection, the City hereby i[[eVOC@b|y assigns tOthe Artist all its right, title and interest that it may be deemed to have in and to any and all invenhone, oopy[ights, patents, trade secrets and other proprietary rights therein (including nBDeVV8|s thereof). B. The Artist expressly reserves 8V8[y right available to him/her at cO00VO law or under the Federal Copyright /\Ct. including 0OOrB| rights under the Visual Artists Rights /\Ct. 17 UGC 106A' to control the making and dissemination of copies orreproductions Ofany items that are conceived, made, discovered, written or created bythe Artist pursuant tVthis Agreement, except as those rights are expressly limited bythis Agreement. The Artist authorizes the City and its assigns to nnghe. publicly display, and distribute any and all phDtogF8pho. Copi8G, drawings and other two-dimensional reproductions ofany Artwork produced pU[SU8ni to this Agreement without prior consent of the Artist, iffor the SO|e use and benefit of the public, not for financial gain, including but not limited to advertising, brochures, iOfO[rO@tiOn@| and educational documents, presentations and similar material, but Doother 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: "C) or Copyright, date of the first publication or date of creation, Artist's name." D. The City agrees that if in the future it sells (re -sale) the Artwork during the lifetime of the Artist, the City shall pay the Artist a sum equal to fifteen percent (15%) of the appreciated value of the Artwork. For the purposes of this agreement, appreciated value shall mean the sales price of the work of art less the original purchase prices as stated in this contract. E. Non-Destruction/Alteration: The City agrees not to purposefully destroy, alter, modify or otherwise change the Artwork in any was 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 longer be represented to be the Artwork of the Artist. DATED this day of CITY OF TUKWILA Tracy Gaflaway, Parks & Recre on Manager 20 iq ARTIST Sammy Creach, Artist Address: 708 S. 26th Avenue, Yakima, WA 98092 If under 18 years of age, a Parent/Guardian signature is required: Parent/Guardian Name EXHIBIT A — SCOPE OF SERVICES TASK 1. PLANNING • Design a mural for the retaining wall at Tukwila International Boulevard. • Consider the wall — its dimensions and surface — in developing a design. • Consider the color wave background and the wall — in developing a design. • Consider the theme of the project "a greeting to those who come and go" — in developing a design. • Create a sketch or visual rendering of the design by September 27th for approval by the TIB Artist - in -Residence. • Coordinate materials and equipment needs with the TIB Artist -in -Residence, The City may be able to provide some equipment and materials, but it is the artist's responsibility to coordinate those needs. TASK 2. IMPLEMENTATION • Paint the Artwork. Artist is responsible for all materials, equipment, and labor required to complete the project, including taxes, priming the wall and graffiti coating for the finished mural. • Paint the Artwork so as not to intentionally endanger any person or property, and using a good faith effort to control spills and minimize deleterious effects to property and the environment • Complete and submit 1) an artwork title; 2) a brief artist statement; and (3) maps of palette of paint colors used for future repairs to reasonably correct the Artwork in the event of damage. LIMITED LIFE SPAN ARTWORK The Artist recognizes that painted surface treatments (murals) have a limited Iifespan of up to 7 years and understands that the City of Tukwila retains the right to review the efficacy, cultural value, and associated costs of maintaining and conserving the Artwork. The City of Tukwila reserves the right to paint over the Artwork at any time. The City of Tukwila will make a reasonable effort to maintain the Artwork during the seven-year life expectancy. EXHIBIT B: PAYMENT SCHEDULE The City shall pay a fixed fee of $400.00 (four hundred dollars and zero cents), which shall constitute full compensation for all services, materials, travel, and delivery to be furnished under the terms of this Agreement. Said fixed fee also includes any and all sales or excise taxes, which shall be paid directly by the Artist to the applicable government authority. The City shall pay the Artist upon completion of Task 2 — Implementation of mural and delivery of written document that identifies artwork title, artist statement, and paint colors used by October 31, 2019.