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HomeMy WebLinkAbout19-159 - Kamyar Mohsenin - Artist Services/TIB Mural Project19-159 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 Kamvar Mohsenin, (hereinafter referred to as "the Artist"), whose principal office is located at 4611 44th Ave, Seattle, WA 98118. 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. Puration of Aareement. 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 Mist. Artist is engaged as an independent contractor and will be responsible for any federal, state and local taxes and fees applicable to payment. Artist shall furnish all supervision, materials, labor, equipment, supplies, and all other incidentals, except as specifically 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 social security, health benefits, workers' compensation, unemployment compensation, and/or retirement benefits. Artist has been commissioned based upon a design submitted to the City for 'public' art. It is understood the Artist will make every effort to create the Artwork in the spirit of the design, but that the necessity for continuous artistic refinement and development may alter the final rendering. Artist, therefore, with approval of the City, which approval shall not be unreasonably withheld, may make necessary design modifications as the Artwork progresses so long as general concept and materials remain the same. 6. Indemnification. The 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 in connection with the performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. 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 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 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. Record Keeoina and Renortina. 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. 8. Audits and Inspections. 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. 9. 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 products on schedule may result in contract termination. 10. Force Majeure. 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. 11. Discrimination Prohibited. The Consultant, with regard to the work performed by it 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. Assignment and Subcontract. The Artist shall not assign or subcontract any portion of the services contemplated by this Agreement without the written consent of the City. This provision 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 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. 16. Notices. Notices to the City of Tukwila shall be sent to the following address: City Clerk, City of Tukwila 6200 Southcenter Blvd. Tukwila, Washington 98188 Notices to the Artist shall be sent to the address provided by the Artist upon the signature line below; — • • 16. Malleable 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 attorney's fees and costs of suit. 17. Proprietary Rights and Rights of Reproduction. A. After delivery of the Artwork and acceptance of the Artwork 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 that 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 interest that it may be deemed to have in and to any and all inventions, copyrights, patents, trade 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 assigns 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: "CI 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. A4A DATED this u day of 0 C.--\-o\at,'-c- , 20 \t CITY OF TUKWILA ARTIST y, Parks & Recreation Manager Kamyar Mohsenin, Artist Address: 4611 44th Ave, Seattle, WA 98118 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 lifespan 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.