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Resolution 56-24
RECORD OF RESOLUTIONS BARRETT BROTHERS - DAYTON, OHIO Form 6301 Resolution No.__56-24 Passed , AUTHORIZING THE CITY MANAGER TO ENTER INTO A CONTRACT WITH ARTIST IVAN DEPENA FOR THE DESIGN, CONSTRUCTION AND INSTALLATION OF THE MUIRFIELD ART IN PUBLIC PLACES PROJECT (“S/WING”) LOCATED AT THE NORTHEAST PARCEL OF MUIRFIELD DRIVE AND WHITTINGHAM DRIVE WHEREAS, the City of Dublin has established the Art in Public Places program for the establishment and display of artwork; and WHEREAS, authority lies with the City of Dublin to make payments for the acquisition, design, execution, fabrication, transportation, and installation of artworks, including payments for the support of an artist selection process, design, execution, and placement of public art; and | WHEREAS, artist Ivan Depefia was selected to design, execute, fabricate, and install the artwork S/WING” in a public place located at the northeast parcel of Muirfield Drive and Whittingham Drive, Dublin, Ohio; and WHEREAS, artist Ivan Depefia is a recognized artist whose work and reputation provide the unique qualifications necessary to create public artwork. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Dublin, State of Ohio, __‘/_ of the elected members concurring, that: Section 1. This Resolution authorizes the City Manager to Enter into a Contract with Artist Ivan Depefia for the Design, Construction and Installation of the Muirfield Art in Public Places Project (“S/WING”) Located at the Northeast Parcel of Muirfield Drive and Whittingham Drive Section 2. This Council further hereby authorizes and directs the City Manager, the Director of Law, the Director of Finance, the Clerk of Council, or other appropriate officers of the City to prepare and sign all other agreements and instruments and to take any other actions as may be necessary to implement this Resolution and complete the work for this Project. Section 3. This Resolution shall take effect upon passage in accordance with Section 4.04(a) of the Revised Charter. Passed this ye day of F lovemhar 2024. Va ae Mayor - Presiding Officer To: Members of Dublin City Council From: Megan D. O’Callaghan, P.E., City Manager Date: October 29, 2024 Initiated By: Matt Earman, Director of Parks and Recreation Re: Resolution 56-24 – Authorizing the City Manager to Enter into a Contract with Artist Ivan Depeña for the Design, Construction and Installation of the Muirfield Art in Public Places Project (“S/WING”) Located at the Northeast Parcel of Muirfield Drive and Whittingham Drive Summary In May 2022, City staff was informed that the State of Ohio included $175,000 for the public art project (Project) on Muirfield Drive in the State Capital Budget. The funds will be awarded to the City as a grant through the Ohio Facilities Construction Commission (OFCC). At the September 26, 2022 Council meeting, staff was directed to proceed with the Project and enter into a memorandum of understanding (MOU) with the Muirfield Association (Association) and Dublin Arts Council (DAC) to memorialize the terms and conditions approved by City Council. A copy of the executed MOU is attached for reference. At the August 14, 2023 meeting, City Council approved the project site, which will be located on the northeast parcel at the intersection of Muirfield Drive and Whittingham Drive (PID 60034307034000). In accordance with the Art in Public Places (AiPP) process, the DAC then distributed a national call for artists for the Project in October 2023. After receiving 122 applications, the artist selection committee selected three finalists who publically presented their proposals at the Dublin Community Recreation Center on June 13, 2024. At the June 17, 2024 City Council meeting, Dr. David Guion, Executive Director of the DAC presented the selection of artist Ivan Depeña to complete the upcoming art installation. Per the Art in Public Places Master Plan, once a site is approved and an Artist selected, City of Dublin staff shall work directly with that Artist and any necessary contractors to contract the work, and shall manage the contract to meet artwork creation deadlines as stipulated in the contract, prepare the site and oversee the installation of the artwork. A copy of the proposed contract with the Artist is attached. For the Project, Depeña drew inspiration from movement and flight. “S/WING” embodies the dynamic motion of a golf swing inspired in part by Jack Nicklaus’ signature swing, intertwined with the movement of a bird’s wings in flight. The piece will be approximately 12-15 feet high and 12-15 feet wide. Made from cast stone with the incorporation of artificial moss or turf, the Project will weigh approximately 250,000 pounds and be assembled on-site using a crane. A rendering of the art piece and a location map are also included for reference. As noted at the September 26, 2022 Council meeting, the City is responsible for funding the full $175,000 toward this project and then seeking reimbursement from the State at the Project’s Office of the City Manager 5555 Perimeter Drive • Dublin, OH 43017-1090 Phone: 614-410-4400 • Fax: 614-410-4490 Memo Memo re. Resolution 56-24 – Authorizing the City Manager to Enter into a Contract with Artist Ivan Depeña for the Design, Construction, and Installation of “S/WING” Located at the Northeast Parcel of Muirfield Drive and Whittingham Drive Date: October 29, 2024 Page 2 of 2 completion. $175,000 from the Hotel/Motel Tax fund was included in the Q3 supplemental appropriation (Ordinance 36-24). The Muirfield Association will donate a portion of the designated parcel, up to and including the entire parcel, to the City at no cost per the MOU. The value of the donated site will be applied to the OFCC grant match requirement of $87,500. The Association will also grant any necessary easements to the City and will continue its current landscape responsibilities of the site. The City will maintain the art piece itself as it will be included in the City’s inventory of commissioned artwork. The donation of the parcel will be presented to City Council by Ordinance at a future meeting following the execution of the contract with the artist. The Project is planned to be completed by spring 2026, before the Memorial Tournament. Recommendation Staff recommends approval of Resolution 56-24 Authorizing the City Manager to Enter into a Contract with Artist Ivan Depeña for the Design, Construction, and Installation of the “S/WING” art project located at the northeast parcel of the intersection of Whittingham Drive and Muirfield Drive. 3DJHRI 0(025$1'802)81'(567$1',1* 7KLV0HPRUDQGXPRI8QGHUVWDQGLQJ ³028´ LVE\DQGEHWZHHQWKH&LW\RI'XEOLQ2KLRDQ 2KLRPXQLFLSDOFRUSRUDWLRQ ³&LW\´ WKH0XLUILHOG$VVRFLDWLRQ,QFDQ2KLRFRUSRUDWLRQIRUQRQ SURILW ³$VVRFLDWLRQ´ DQGWKH'XEOLQ$UWV&RXQFLODQ2KLRFRUSRUDWLRQIRUQRQSURILW ³'$&´ 7KLV028LVHIIHFWLYHIURPWKHGDWHRIWKHODVWVLJQDWXUHRQWKHVLJQDWXUHEORFNVEHORZ ³(IIHFWLYH 'DWH´ 7KH&LW\WKH$VVRFLDWLRQDQGWKH'$&PD\EHUHIHUUHGWRLQGLYLGXDOO\DV³3DUW\´RU FROOHFWLYHO\DV³3DUWLHV´ 5(&,7$/6 :+(5($6WKH6WDWHRI2KLRDOORFDWHGDWRWDORIIRUDSXEOLFDUWSURMHFWSXUVXDQWWR 2KLR6XEVWLWXWH+RXVH%LOO UHIHUUHGWRDVWKH6WDWH&DSLWDO%XGJHW ³3URMHFW´ :+(5($6 WKH VWDWH IXQGLQJ ZLOO EH DZDUGHG WKURXJK WKH 2KLR )DFLOLWLHV &RQVWUXFWLRQ &RPPLWWHH ³2)&&´ DVDJUDQW ³6WDWH*UDQW)XQGV´ DQGKDOIRIWKHJUDQWDZDUG PXVW EHPDWFKHGE\WKHJUDQWHH ³0DWFK´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³$L33´ SURJUDP$OOQHFHVVDU\$L33SURFHGXUHVWKDWFDQUHDVRQDEO\EH IROORZHGZKLOHFRPSO\LQJZLWKWKHUHTXLUHPHQWVRIWKH6WDWH*UDQW)XQGVVKDOOEHIROORZHG WKURXJKRXW WKH 3URMHFW DGPLQLVWUDWLRQ LQFOXGLQJ EXW QRW OLPLWHG WR WKRVH VSHFLILFDOO\ UHIHUHQFHGLQWKLV028 6LWH 7KH&LW\DQGWKH'$&VKDOOJHQHUDOO\FRQGXFWWKHVLWHVHOHFWLRQSURFHVVRXWOLQHGLQWKH 3XEOLF$UW0DVWHU3ODQDQGQHJRWLDWHLQJRRGIDLWKWRVHOHFWDSRWHQWLDOVLWHIRUWKH3URMHFWWKDW 1 ARTIST CONTRACT Dublin, Ohio S/WING (working title) Ivan Depeña 3D conceptual rendering by depeñastudio 2 THIS AGREEMENT, is entered into this ___________day of 2024, between City of Dublin, Ohio (hereinafter the “Agency”), a municipal corporation duly organized and validly existing under the Constitution and laws of the State of Ohio and its Charter, with offices at 5555 Perimeter Drive, Dublin, Ohio 43017, and Airboat, Inc. dba Depeña Studio (hereinafter the “Artist”) with a studio at 804 Atando Avenue, Charlotte, North Carolina 28209. WHEREAS, the Agency has the Art in Public Places program for the establishment and display of artwork in public places; and WHEREAS, authority lies with the Agency to make payments for the acquisition, design execution, fabrication, transportation, and installation of artworks, including payments for the support of an artist selection process, design, execution and placement of Art; and WHEREAS, the Artist is a recognized artist whose work and reputation make the Artist uniquely qualified to create Artwork; and WHEREAS, the Artist was selected to design, execute, fabricate and install the Artwork, as described in Exhibit 1 in a public space located at Parcel Number 60034307034000, north of Muirfield and Whittingham Drive in Dublin Ohio (hereinafter the “Site”); and WHEREAS, the Artist and Agency wish to undertake the obligations expressed herein; NOW, THEREFORE, in consideration of the above-stated premises and subject to the conditions hereinafter set forth, the parties agree as follows: Section 1 Scope of Services 1.1 Artist’s Obligations a. The Artist shall perform all services and furnish all supplies, material and/or equipment as necessary for the design, fabrication, and installation of the Artwork at the Site in accordance with the specified schedule and budget as provided in Exhibit 2; . Services shall be performed in a professional manner and in strict compliance with all terms and conditions in the Agreement. b. The Artist shall determine the artistic expression, design, dimensions and materials of the Artwork, subject to review and acceptance by the Agency as set forth in this Agreement, which acceptance shall not unreasonably be withheld. To ensure that the Artwork as installed shall not interfere with the intended use of the Site, pedestrian and other traffic flow, parking, and safety devices and procedures at the Site, the Artist’s proposal shall be reviewed and approved by the Agency including applicable city departments to ensure compliance with these objectives. 3 c. The Artist shall prepare the design concept and the corresponding budget described in Section 1.4 of this Agreement. The design concept shall include a description of all materials and products utilized in the Artwork and the required routine care and upkeep involved. d. The Artist shall work with Dublin staff and community stakeholders to incorporate their reasonable suggestions into the refinement of the Artwork. The Artist shall take into consideration all public comments made related to the design of the Artwork. The Artist, however, shall not be obligated to make substantial changes to the design, but rather to incorporate any minor revision(s) that are possible and consistent with the proposed design theme accepted as part of the selection process. e. The Artist shall participate in design and construction coordination meetings with the Agency and other parties, as appropriate, to communicate about the Artwork and to ensure appropriate integration and/or installation of the Artwork. f. The Artist shall complete the fabrication of the Artwork by the scheduled installation date as provided in Exhibit 2 of this Agreement. Reasonably delays related to the Agency’s permit processing and approval that delay the scheduled installation due to no fault of Artist shall not be considered a breach of this Agreement. g. The Artist shall secure any and all required licenses, permits and similar legal authorizations at the Artist’s expense as may be necessary for the installation and maintenance of the Artwork at the Site. The Agency shall reasonably assist the Artist with the Agency’s permit process. h. The Artist shall arrange the transportation and installation of the Artwork in consultation with the Agency. i. The Artist shall be present for the installation. j. The Artist shall provide required insurance in amounts and limits specified in Section 6 and Exhibit 4. k. The Artist shall provide a list of all subcontractors along with their scope of services; the Artist will also secure the waiver in Exhibit 3. l. The Artist shall provide a maintenance manual with a description of all materials and products utilized in the Artwork and the required care and upkeep involved. m. The Artist shall provide photographic documentation of the Artwork. n. The Artist shall participate in, with reasonable advance notice, meetings, ceremonies and the like, as reasonably deemed necessary by the Agency. 4 1.2 Agency’s Obligations a. The Agency shall perform all obligations in strict compliance with all terms and conditions in this Agreement. b. The Agency shall be responsible for providing the Artist, at no expense to the Artist, copies of the Agency’s existing designs, drawings, reports, list of required permits, and other existing relevant data, if any, which is needed by the Artist in order to perform. c. The Agency shall be responsible for explaining any applicable laws and regulations to the Artist. d. The Agency shall provide and install a plaque on or near the Artwork containing a credit to the Artist and a copyright notice substantially in the following form: Copyright © [Artist’s name, date of publication]. e. The Agency shall not permit any use of the Artist’s name or misuse of the Artwork which would reflect discredit on the Artist’s reputation as an artist or which would violate the spirit of the Artwork, should such use or misuse be within the Agency’s control. f. The Agency shall be responsible for explaining the required review process. The Agency shall be responsible for organizing and scheduling meetings with review entities and for providing the Artist written instructions for the materials required at such meetings. g. The Agency shall prepare the Site in accordance with the specifications detailed in the approved design concept in Section 1.3 of this Agreement. The Agency shall be responsible for all expenses, labor and equipment to prepare the Site for installation of the Artwork. The Agency shall complete the Site preparations by the scheduled installation date as provided in Exhibit 3 of this Agreement or shall contact the Artist in writing informing of any delays. The Agency is responsible for providing and/or maintaining utilities to the work site as required by the Artwork, including but not limited to electrical, mechanical, plumbing, water, and data. No changes shall be made to the project Site that affect the Artwork or installation plan after the delivery of the Agency's existing designs, drawings, and reports to the Artist. h. The Artist shall ensure that the Site is secured at all times beginning from art installation through substantial completion of the Artwork. i. The Agency shall provide a point of contact for the Artist during the term of this Agreement for all issues related to the implementation of the Agreement. Unless otherwise notified by the Agency in writing, Artist’s point of contact shall be City of Dublin Landscape Architect. 5 1.3 Design a. Concept/Schematic i.) The Artist submitted a design concept/schematic (the “Design”) with an accompanying budget to design and fabricate an Artwork suitable for the current project, which Design was selected and approved by the Agency. Notwithstanding the foregoing, the Agency understands that the proposed Design is conceptual and that the Artist will put forth commercially reasonable efforts to produce the Artwork as depicted by the Design. The Design and Budget shall be attached to this Agreement as Exhibit 1 and Exhibit 2 respectively. This contract acknowledges that the proposed design was based on preliminary assessments, and adjustments, including but not limited to value engineering, may be required during Design Development to meet the budget due to, but not limited to, unforeseen site conditions, construction costs, engineering constraints, material costs, and other factors. In the event that the Artist encounters additional costs, the Artist must, in writing, request a change in budget from the Agency with an explanation of the request. The Agency may approve or deny this request in good faith, which any approval by the Agency being required to be in writing. b. Revised Design/Construction Documents i.) The Artist shall submit sketches, photos, maquette and other evidence to fully communicate the final design to the Agency (hereinafter the “Revised Design”). ii.) The Artist shall present the Revised Design to a qualified engineer, licensed by the State of Ohio and paid by the Artist, for certification that the Artwork will be of adequate structural integrity. The Artist shall provide the Agency with the resulting engineered construction documents. iii.) If requested by the City, the Artist shall present the Revised Design to a qualified conservator, who will make recommendations on the maintenance of the Artwork, and the Artist shall provide a written copy of the conservator’s recommendations to the Agency. The costs of the conservator shall be paid by the City. c. Approval i.) Within 10 days after the submission of the Revised Design and accompanying construction documents stamped by a qualified engineer, the Agency shall notify the Artist if it requires any revisions to the Revised Design in order to comply with any applicable laws, ordinances and/or regulations or for other reasons including, but not limited to, ensuring the physical integrity of the Artwork or its installation at the Site. The Agency shall not unreasonably withhold approval of the Revised Design. In the 6 event that Agency fails to notify the Artist of any required revisions to the Revised Design within 10 of the submission of the Revised Design by the Artist, the Revised Design shall be deemed to have been approved by the Agency. 1.4 Budget, Payment Schedule, Construction Schedule and Progress Reports a. Budget i.) The Artist shall prepare a budget, which shall include all goods, services, expenses and materials, with such costs itemized. The budget shall be attached to this Agreement as Exhibit 2. ii.) Calculation of the budget will take into consideration the possible inflation of service and material costs between the date of execution of this Agreement and the anticipated completion date. iii.) The Artist shall keep a log of the Artist’s project hours and shall retain all original receipts pertaining directly to the project. iv.) If the Artist incurs costs in excess of the amount listed in the budget, the Artist shall pay such excess from the Artist’s own funds. v.) The Agency shall waive all City of Dublin permit fees and review fees that would otherwise arise in connection with this Agreement. b. Schedule i.) The Artist shall notify the Agency of the schedule for the fabrication and installation of the Artwork, including a schedule for the submission of progress reports and inspections, if any. The Schedule may be amended by written agreement. ii.) A schedule for the payment of budget installments is attached to this Agreement as Exhibit 3. iii.) The Agency acknowledges that the Production Schedule and Installation Date are contingent upon timely disbursement of payments to the Artist and approval of the Revised Design. c. Fixed Fee i.) The Agency shall pay the Artist a fee of $175,000, which shall constitute full compensation for all services performed and materials furnished, including but not limited to, design costs, travel and related expenses, site work, permit and review fees for entities other than the City of Dublin. The Agency shall not be responsible to 7 the Artist for any funds in excess of the $175,000 fee, except as otherwise provided herein. 1.5 Fabrication Stage a. The Artist shall fabricate and install the Artwork in substantial conformity with the approved Revised Design. The Artist may not substantially deviate from the Revised Design without written approval of the Agency, which approval shall not be unreasonably withheld. b. The Artist shall take reasonable measures to protect or preserve the integrity of the Artwork, such as the application of protective or anti-graffiti coatings, if applicable, unless the Agency disapproves. If the Artwork is being constructed on-site, the Artist shall avoid creating nuisance conditions arising out of the Artist’s operations. Prior to requesting authorization to transport and install the Artwork, the Artist shall be required to provide the Agency with a list of all work to be performed on-site. All additional workers or subcontractors must provide proof of insurance before entering the site. c. The Agency shall have the right to review the Artwork at reasonable times during the fabrication thereof, upon reasonable notice. d. If the Agency, upon review of the Artwork, determines that the Artwork does not substantially conform to the Design or Revised Design, the Agency reserves the right to notify the Artist in writing of deficiencies and that the Agency intends to withhold the next budget installment payment. e. The Artist will promptly cure said deficiencies and will notify the Agency in writing of completion of the cure. The Agency shall promptly review the Artwork, and upon approval shall release the next budget installment. If the Artist disputes the Agency’s determination to withhold approval of the Artwork, the Artist shall promptly submit reasons in writing to the Agency within 30 days of the Agency’s prior notification to the contrary. The Agency shall make reasonable efforts to resolve the dispute with the Artist in good faith. However, final determination as to whether the Artist has complied with the terms of this agreement shall remain with the Agency. f. The Artist shall notify the Agency 30 days prior to completion in writing when fabrication of the Artwork has been completed, and that the Artwork is ready for delivery and installation at the Site if the Artwork was fabricated off-site and/or is completed at the foundry. g. The Agency may inspect the Artwork after receiving notification pursuant to paragraph (f), prior to installation, to determine that the Artwork conforms with the Revised Design and to give the final approval of the Artwork. In the event that the Agency does withhold final approval, the Agency shall submit the reasons for such disapproval in writing within 8 15 days of examining the fabricated Artwork. The Artist shall then have 30 days from the date of the Agency’s notice of the disapproval to make the necessary adjustments to the fabricated Artwork in accordance with such writing. The Artist shall be held responsible for any expenses incurred in making the necessary adjustments. h. The Artist shall promptly notify the Agency of any delays impacting installation of the Artwork. Any additional storage fees or other fees of any kind incurred as a result of such delays are the responsibility of the Artist. 1.6 Changes to Revised Design a. The Artist shall review the Site to ensure that it is properly prepared prior to the transportation and installation of the Artwork and shall notify the Agency of any adverse Site conditions that will impact the installation of the Artwork, which the Agency may correct prior to installation if it determines in its independent judgment that the alleged adverse conditions will impact the Artwork. Changes to Revised Design b. Prior to the execution of any change to the Revised Design, the Artist shall present proposed changes in writing to the Agency for further review and approval. The Artist must provide a detailed description of any significant changes in the artistic expression, design, dimensions and materials of the Artwork that is not permitted by nor in substantial conformity with the already approved Revised Design. Such notice will also include a detailed description of any additional costs that may be incurred or changes in the budget. A significant change is any change which materially affects installation, scheduling, site preparation or maintenance of the Artwork or the concept of the Artwork as represented in the Revised Design. c. If the Agency approves the changes, the Agency shall promptly notify the Artist in writing. d. The Agency will also make the required presentations to the approved bodies. e. If the Agency disapproves of the changes, the Agency shall notify the Artist in writing within a reasonable time, and the Artist shall continue to fabricate the Artwork in substantial conformity with the approved Revised Design. 1.7 Installation a. The Agency acknowledges the Artist’s intent to hire a third party for providing transportation of the Artwork to and from the Artist’s studio to the foundry, to the installation site, and other locations as deemed necessary. The Agency also acknowledges the Artist may utilize a third party for the installation work. b. Upon the Agency’s final approval of the fabricated Artwork, as being in conformity with the Revised Design, the Artist shall deliver and install the completed Artwork to the Site 9 in accordance with the schedule provided for in Section 1.4(b). Transportation fees shall be paid by the Artist. c. The Artist will coordinate closely with the Agency to ascertain that the Site is prepared to receive the Artwork. The Artist must notify the Agency of any adverse conditions at the Site that would affect or impede the installation of the Artwork and then propose how to remediate such conditions, with the permission of the Agency. The Artist shall be present to supervise the installation of the Artwork. d. Upon delivery of the Artwork to the Site and until written acceptance of the Artwork by the Agency, the Agency shall make its best efforts to ensure, at the Agency’s sole expense, that the site is secure from vandalism and other risk of damage by third parties. e. Upon written acceptance of the installation, the Artwork shall be deemed to be in the custody of the Agency for purposes of Section 4 and Section 6 of this Agreement. f. Within 30 days after installation of the Artwork, or a later date as negotiated and agreed by the Parties, the Artist shall furnish the Agency with the following photographs of the Artwork as installed: i.) A set of ten digital, 300 dpi, JPG or TIFF files of the Artwork, provided to the Agency on a CD Rom. Photographs must be labeled with the name of the Artwork, the date upon which the photograph was taken, and the viewpoint from which the photograph was taken. The Artist shall also furnish the Agency with a full written narrative description of the Artwork. g. Upon installation of the Artwork, the Artist shall provide the Agency with written instructions for the appropriate maintenance and preservation of the Artwork along with product data sheets for any material or finish used. 1.8 Approval and Acceptance a. The Artist shall notify the Agency in writing when all services as required of both Parties by this Agreement prior to this paragraph have been completed in substantial conformity with the Design. b. The Agency shall promptly notify the Artist of its final acceptance of the Artwork within 10 days after the Artist submitted written notice pursuant to the paragraph (a) above. The effective date of final acceptance shall be the date the Agency submits written notice to the Artist of its final acceptance of the Artwork. The final acceptance shall be understood to mean that the Agency acknowledges completion of the Artwork in substantial conformity with the Design, and that the Agency confirms that all services as required of both Parties by this Agreement prior to paragraph (c) of this section have 10 been completed. Title to the Artwork passes upon final acceptance and final payment. c. If the Agency disputes that all the services have been performed, the Agency shall notify the Artist in writing of those services the Artist has failed to perform within 10 days after the Artist submitted written notice pursuant to paragraph (a) above. The Artist shall promptly perform those services indicated by the Agency. d. If the Artist disputes the Agency’s determination that not all services have been performed, the Artist shall submit reasons in writing to the Agency within 15 days of the Agency’s prior notification to the contrary. The Agency shall make reasonable efforts to resolve the dispute with the Artist in good faith. However, final determination as to whether all services have been performed shall remain with the Agency. e. Upon the resolution of any disputes that arise under paragraphs (c) and (d) of this section, the Agency shall notify the Artist of its final acceptance of the Artwork pursuant to paragraph (b). f. After final acceptance of the Artwork, the Artist shall be available at such time(s) as may be mutually agreed upon by the Agency and the Artist to participate in any meetings relating to the dedication of the Artwork. i.) During any public presentations by the Artist, the Artist shall acknowledge the Agency’s role in funding the Artwork. ii.) The Agency shall be solely responsible for coordinating public information, materials, and activities related to public presentations. Section 2 Taxes Any state or federal sales, use or excise taxes, or similar changes relating to the services and materials under this Agreement shall be paid by the Artist in a timely fashion. The Agency shall report payments made to the Artist annually to the Internal Revenue Department in a 1099 statement. Section 3 Term of Agreement 3.1 Duration a. This Agreement shall be effective on the date that this Agreement has been signed by both parties, and unless terminated earlier pursuant to such provisions in the Agreement, shall extend until final acceptance by the Agency under Section 1.8(b), or submission of final payment to the Artist by the Agency under Exhibit 3, whichever is later. Extension of time of performance hereunder may be granted upon the request of one Party and the consent of the other thereto, which consent shall not be unreasonably withheld. Such 11 extension shall be in writing, signed by both parties, and attached to the schedule under Section 1.4(b)(ii), which is attached as Exhibit 3. 3.2 Force Majeure a. The Agency shall grant to the Artist a reasonable extension of time in the event that conditions beyond the Artist’s control render timely performance of the Artist’s services impossible or unduly burdensome, including but not limited to deficient site conditions and unreasonable delays in the City’s issuance of necessary permits and acceptances. All such performance obligations shall be suspended for the duration of the condition. Both parties shall take all reasonable steps during the existence of the condition to assure performance of their contractual obligations when the condition no longer exists. Failure to fulfill contractual obligations due to conditions beyond either Party’s reasonable control will not be considered a breach of contract, provided that such obligations shall be suspended only for the duration of such conditions. Section 4 Risk of Loss The Artist shall bear the risk of loss or damage to the Artwork until the Agency’s final acceptance of the Artwork under Section 1.8(b). The Artist shall take such measures as are reasonably necessary to protect the Artwork from loss or damage, excluding “Force Majeure”. The Agency shall bear the risk of loss or damage to the Artwork prior to final acceptance only if, during such time the partially or wholly completed Artwork is in the custody, control or supervision of the Agency or its agent(s) for the purposes of transporting, storing, installing or performing other services to the Artwork. Section 5 Artist’s Representations and Warranties 5.1 Warranties of Title The Artist represents and warrants that: a. The Artwork is solely the result of the artistic effort of the Artist; b. Except as otherwise disclosed in writing to the Agency, the Artwork is unique and original and does not infringe upon any copyright or the rights of any person; c. The Artwork (or duplicate thereof) has not been accepted for sale elsewhere; d. The Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Artwork or any element thereof or any copyright related thereto which may affect or impair the rights granted pursuant to the agreement; e. The Artwork is free and clear of any liens from any source whatsoever; 12 f. All Artwork created or performed by the Artist under this Agreement do not violate the rights of any third party; g. The Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; h. All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc. and with all necessary care, skill, and diligence; i. These representations and warranties shall survive the termination or other extinction of this Agreement. 5.2 Warranties of Quality and Condition a. The Artist represents and warrants that all work will be performed in accordance with professional “workmanlike” standards and free from defective or inferior materials and workmanship (including any defects consisting of “inherent vice,” or qualities that cause or accelerate deterioration of the Artwork) for 1 year after the date of final acceptance by the Agency under Section 1.8(b). b. The Artist represents and warrants that the Artwork and the materials used are not currently known to be harmful to public health and safety. c. The Artist represents and warrants that reasonable maintenance of the Artwork will not require procedures substantially in excess of those described in the maintenance and preservation recommendations submitted by the Artist pursuant to Section 1.7(f). d. If within 1 year the Agency observes any breach of warranty described in this Section 5.2 that is curable by the Artist, the Artist shall, at the request of the Agency, cure the breach promptly, satisfactorily, and consistently with professional conservation standards, at no expense to the Agency. The Agency shall give notice to the Artist of such breach with reasonable promptness. e. The warranty excludes damage due to vandalism or intentional damage, acts of nature such as storms, earthquakes, and floods, normal wear and tear, unauthorized alterations or repairs, damage due to improper maintenance or neglect, environmental factors like excess pollution and, theft or disappearance. The Artist does acknowledge and guarantee, however, that the Artwork will be engineered to withstand normal weather elements. f. If the Agency observes the breach of warranty described in this Section 5.2 that is curable by the Artist, the Agency shall contact the Artist to make or supervise repairs or restorations at a reasonable fee during the Artist’s lifetime. The Artist shall have the right of first refusal to make or supervise repairs or restorations. Should the Artist be 13 unavailable or unwilling to accept reasonable compensation under the industry standard, the Agency may seek the services of a qualified restorative conservator and maintenance expert. g. If within 1 year the Agency observes a breach of warranty described in this Section 5.2 that is not curable by the Artist, the Artist is responsible for reimbursing the Agency for damages, expenses and loss incurred by the Agency as a result of the breach. However, if the Artist disclosed the risk of this breach in the Proposal and the Agency accepted that it may occur, it shall not be deemed a breach for purposes of this Section 5.2 of this agreement. h. To the extent that the Artwork integrates third-party electronics or commercially manufactured, warrantied components, the manufacturer’s warranty shall apply to such electronics and components. i. Utilities to the site are not subject to the warranty, and the Artist is not liable for any damage to the project caused by electrical, mechanical, or structural defects provided by the Agency to the project site. j. The warranty period begins upon substantial completion. k. Acceptable Standard of Display. Artist represents and warrants that: i.) General routine cleaning and repair of the Artwork and any associated working parts and/or equipment will maintain the Artwork within an acceptable standard of public display. ii.) Foreseeable exposure to the elements and general wear and tear will cause the Artwork to experience only minor repairable damages and will not cause the Artwork to fall below and acceptable standard of public display. iii.) With general routine cleaning and repair, and within the context of foreseeable exposure to the elements and general wear and tear, the Artwork will not experience irreparable conditions that do not fall within an acceptable standard of public display, including mold, rust, fracturing, staining, chipping, tearing, abrading and peeling. iv.) To the extent the Artwork incorporates products covered by a manufacturer’s warranty, such warranty shall apply to the Artwork. Artist shall provide copies of any warranties to the Agency. The foregoing warranties are conditional and shall be voided by the failure of the Agency to maintain the Artwork in accordance with the Artist’s specifications and the applicable conservation standards, which shall be provided by the Artist to the Agency. If the Agency fails to maintain the Artwork in good condition, the Artist, in addition to other rights or remedies the 14 Artist may have in equity or at law, shall have the right to disown the Artwork as the Artist’s creation and request that all credits be removed from the Artwork and reproductions thereof until the Artwork’s condition is satisfactorily repaired. The Agency may alter the Artwork to the extent necessary to rectify a condition that is dangerous to the public or to the extent necessary to avoid vandalism and theft. The Agency will provide visual inspection reports to the Artist every 90 days. Section 6 Insurance 6.1 General a. The Artist acknowledges that until final acceptance of the Artwork by the Agency under Section 1.8(b), any injury to property or persons caused by the Artist’s Artwork or any damage to, theft of, vandalism to, or acts of God affecting the Artist’s Artwork are the sole responsibility of the Artist, including, but not limited to, any loss occurring during the creation, storage, transportation or delivery of the Artist’s Artwork, regardless of where such loss occurs. Should the Artist employ a third party to transport the Artwork, any injury to property or persons caused by the Artwork during transportation shall be the responsibility of that third party. Additionally, the third party responsible for transporting the Artwork shall provide the Agency with necessary proof of insurance in advance of transporting the Artwork. b. Terms for the procurement and duration of insurance are provided in Exhibit 4. c. Required insurance policies are described in Exhibit 4. 6.2 Indemnity a. The Artist shall indemnify the Agency, its respective officers, agents, and employees, from b. any claims directly or proximately resulting from the Artist, its subcontractors, agents, or employees’ breach of this Agreement, or from any claims directly or proximately resulting from the Artist, its subcontractors, agents or employees’ negligence. c. Each Party shall immediately notify the other of any written claim regarding any matter resulting from or relating to the Party’s obligations under this Agreement. Each Party shall cooperate, assist, and consult with the other in the defense or investigation of any such claims arising out of or relating to the performance of this Agreement. d. The indemnification shall include reasonable attorneys’ fees and costs. e. This indemnification shall survive the termination or expiration of this Agreement. f. Notwithstanding any provision of this Agreement to the contrary, no Party shall recover 15 from a Party to this Agreement in an action, of whatever nature, in contract or tort, any consequential or incidental damages, lost profits, or any type of expectancy damages. Section 7 Ownership and Intellectual Property Rights 7.1 Title a. Title to the Artwork shall pass to the Agency upon the Agency’s written final acceptance and payment for the Artwork pursuant to Section 1.8 and Exhibit 5. Artist shall provide Agency with a Transfer of Title in substantially the form attached hereto as Exhibit 5. 7.2 Copyright Ownership a. The Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. § 101 et seq., as the sole author of the Artwork for the duration of the copyright. 7.3 Reproduction Rights a. The Artist shall grant irrevocable reproduction rights for non-commercial uses as identified in Exhibit 6, attached hereto. Section 8 Reserved Section 9 Permanent Record The Agency shall maintain on permanent file a record of this Agreement and of the location and disposition of the Artwork. Section 10 Artist as an Independent Contractor The Artist agrees to perform all Artwork under this Agreement as an independent contractor and not as an agent or employee of the Agency. The Artist acknowledges and agrees that the Artist shall not hold himself or herself out as an authorized agent of the Agency with the power to bind in any manner. The Artist shall provide the Agency with the Artist’s Tax Identification Number and any proof of such number as requested by the Agency. Section 11 Nondiscrimination The Artist shall not discriminate, in any way, against any person on the basis of race, gender (or gender expression), ancestry, national origin, religious creed, actual or perceived physical or mental disability, medical condition, marital status, pregnancy status, sexual orientation, or age in connection with or related to the performance of this Agreement. 16 Section 12 Assignment of Artwork The Artwork and services required of the Artist are personal and shall not be assigned, sublet or transferred, unless agreed to by the Agency in writing. Any attempt by the Artist to assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect unless prior written consent is given by the Agency. The Agency shall have the right to assign or transfer any and all of the Agency’s rights and obligations under this Agreement, subject to the Artist’s consent, if ownership of the Site is transferred; if the Artist refuses to give consent, this Agreement shall terminate. Section 13 Termination a. Either Party may terminate this Agreement without recourse by the other where performance is rendered impossible or impractical for reasons beyond such Party’s reasonable control such as, but not limited to, acts of nature, war or warlike operations, superior governmental regulation or control, public emergency or strike, or other labor disturbance. Notice of termination of this Agreement shall be given to the non-terminating Party in writing not less than 30 days prior to effective date of termination. b. The Agency may terminate this Agreement without cause upon 15 days written notice to the Artist. The Agency shall pay the Artist for services performed and commitments made prior to the date of termination, consistent with the schedule of payments set forth in Exhibit 3 of this Agreement. The Artist shall have the right to an equitable adjustment in the fee for services performed and expenses incurred beyond those for which the Artist has been compensated to date under Exhibit 3 unless the parties come to a settlement otherwise. c. If either Party to this Agreement shall willfully or negligently fail to fulfill in a timely and proper manner, or otherwise violate any of the covenants, agreements or stipulations material to this Agreement, the other Party shall thereupon have the right to terminate this Agreement by giving written notice to the defaulting Party of its intent to terminate specifying the grounds for termination. The defaulting Party shall have 30 days after the effective date of the notice to cure the default. If it is not cured by that time, this Agreement shall terminate. d. If the Artist defaults, for cause other than death or incapacitation, the Artist shall return to the Agency all funds provided by the Agency in excess of expenses already incurred. Milestone payments that are made for accepted/completed work are non-refundable. The Artist shall provide an accounting document. All finished and unfinished drawings, sketches, photographs and other Artwork products prepared and submitted or prepared for submission by the Artist under this Agreement shall be retained by the Artist. The Agency shall retain the right to have the Artwork completed, fabricated, executed, delivered and installed. However, the Artist shall retain the copyright in the Artwork and 17 all rights under Section 7 and Section 8. e. If the Agency defaults, the Agency shall promptly compensate the Artist for all services performed by the Artist prior to termination. The Agency shall pay the Artist for services performed and commitments made prior to the date of termination, consistent with the schedule of payments set forth in Exhibit 3. The Artist shall have the right to an equitable adjustment in the fee for services performed and expenses incurred beyond those for which the Artist has been compensated to date. The Artist shall retain title to the studies, drawings, designs, maquettes and models prepared for submission to the Agency by the Artist under this Agreement prior to the date of termination. f. Upon notice of termination, the Artist and the Artist’s subcontractors shall cease all services affected. Section 14 Death or Incapacity a. If the Artist becomes unable to complete this Agreement due to death or incapacitation, such death or incapacity will not be deemed a breach of this Agreement or a default on the part of the Artist for the purpose of Section 13. However, nothing in this Section shall obligate the Agency to accept the Artwork. b. In the event of incapacity, the Artist may assign the Artist’s obligations and services under this contract to another artist, provided that the Agency, in its sole discretion, approves of the new artist. Alternatively, the Agency may elect to terminate this Agreement. The Artist shall retain all rights under Section 7. The Artwork and any reproductions thereof shall contain a credit to the Artist and a copyright notice in substantially the following form: Copyright © [Artist’s name, date of publication]. c. In the event of death, this Agreement shall terminate effective the date of death. The Artist’s heirs shall retain all rights under Section 7. [The Artist’s executor shall deliver to the Agency the Artwork in whatever form or degree of completion it may be at the time. Title to the Artwork shall then transfer to the Agency. However, the Artwork shall not be represented to be the complete Artwork of the Artist unless the Agency is otherwise directed by the Artist’s estate.] Section 15 Notices and Documents Notices required under this Agreement shall be delivered personally or through registered or certified mail, electronic mail with signatures, return receipt requested, postage prepaid, to the addresses stated below, or to any other addresses as may be noticed by a Party: For the Agency: City Manager City of Dublin 5555 Perimeter Drive 18 Dublin, OH 43017 For the Artist: Ivan Depeña 804 Atando Avenue Charlotte, NC 28209 Notice shall be deemed effective on the date personally delivered or, if mailed, three (3) days after the postmarked date. Section 16 Waiver The Parties agree that a waiver of any breach of violation of any term or condition of this Agreement shall not be deemed to be a waiver of any other term or condition contained herein or a waiver of any subsequent breach or violation of the same or any other term or condition. Section 17 Audit The Agency shall maintain records of all documents, notices, checks, and other records required or produced under this Agreement or related thereto. The Artist agrees to the maintenance of such records for archival purposes. Such records shall be made available for inspection or audit, at any time during business hours, upon written request by the City Attorney, City Finance Director, City Manager, or a designated representative of any of these officers. Copies of such documents shall be provided to the Agency for inspection when it is practical to do so. Access to such records and documents shall also be granted to any Party authorized by the Artist, the Artist’s representatives, or the Artist’s successors-in-interest. The Agency will comply with any open records law applicable to these records. Section 18 Conflict of Interest The Artist and the Agency shall avoid all conflicts of interest or appearance of conflicts of interest in the performance of this Agreement. Section 19 Amendments No alteration, change or modification of the terms of this Agreement shall be valid unless made in writing and signed by both Parties hereto. Section 20 Conflicts of Law If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall be held by a court of competent jurisdiction to be in conflict with the laws, rules, and/or regulations of the United States or the State of Ohio, invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force 19 and effect and shall in no way be affected, impaired or invalidated thereby to the extent the remainder of the terms, covenants, conditions or provisions of this Agreement are capable of execution. Section 21 Choice of Law This Agreement shall be governed by the laws of the State of Ohio both as to interpretation and performance. Section 22 Entire Agreement This Agreement, including the exhibits, comprises all of the covenants, promises, agreements, and conditions between parties. No verbal agreements or conversations between the Parties prior to the execution of this Agreement shall affect or modify any of the terms or obligations. LIST OF EXHIBITS 1. Description of the Artwork 2. Artwork Budget 3. Payment & Completion Schedule & Waiver of Claims 4. Insurance 5. Transfer of Title 6. Reproduction Rights ***Signatures appear on next page*** 20 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in their respective names by their duly authorized representatives, all as of the date first written above. AGENCY CITY OF DUBLIN, OHIO By: ________________________________ Date: ____________________ Megan D. O’Callaghan City Manager ________________________________ Date: ____________________ Matt Earman Director of Parks & Recreation Approved as to Form: By: ______________________________ Date: ____________________ Phil Hartmann, Assistant Law Director ARTIST By: ___________________________ Date: _____________________ Ivan Depeña CERTIFICATION OF FUNDS I hereby certify that the funds required to meet the City’s obligation, payment, or expenditure under this Agreement have been lawfully appropriated or authorized for such purpose and are free from any obligation now outstanding. _________________________________ __________________________ Director of Finance Date 21 Exhibit 1 Description of Artwork Overview of Public Art Concept Muirfield Drive Public Project S/WING (working title) The included images in Exhibit 1 are intended to be approximations of a proposal concept. The proposal will be developed in full during the Design Development / Refined Design phase. The initial proposal may evolve due to unforeseen circumstances during the Design Development phase undertaken by the “Artist”. Any changes will be reviewed and approved by designated review body for the City of Dublin, Ohio. . Situated on a knoll adjacent to the esteemed Muirfield Village Golf Club—founded by the legendary golfer Jack Nicklaus—the following public art proposal seeks to embody the dynamic motion of a golf swing inspired in part by Nicklaus’ signature swing, intertwined with the movement of a bird’s wings in flight. The design integrates green elements, echoing the 3D illustrative rendering by depeñastudio 22 landscape's that characterize the area and its history. Historically, this region was a tapestry of farming fields, tended by Irish settlers who, much like the indigenous peoples before them, fostered a deep connection with the land and its natural resources. The sculpture serves as a contemporary homage to these early interactions with the environment, reflecting a continuum of respect and stewardship that is deeply woven into the local heritage. The project seeks to respectfully reflect the relationship indigenous peoples with birds were/are often referred to as messengers between the worlds and as vital components of the natural ecosystem. This respect for avian species resonates with the Celtic lore of the Irish migrants, whose myths often featured birds as ethereal guides and protectors, linking them spiritually to the land they farmed. The comparison of the forms of motion is a nod to flight and an intentional combination of past and present. Today, this sculpture stands not only as a celebration of these rich cultural tapestries but also aligns with the Dublin Public Arts Program's commitment to fostering a vibrant community identity. For residents of Muirfield and the broader Dublin area, it offers a place of reflection and inspiration, drawing connections across time— from the historical and spiritual, to the communal and current recreational use of the land. 3D illustrative rendering by depeñastudio 23 3D illustrative rendering by depeñastudio 3D illustrative rendering by depeñastudio 24 Exhibit 2 Artwork Preliminary Budget Permitting $3,000.00 Structural Engineering $3,500.00 Materials – GFRC, High Density Foam, Formed Green wall casting, Structural Steel $28,000.00 Concrete Footings $6,000.00 Fabrication and CNC Milling Costs $51,500.00 Shipping $6,500.00 Labor / Subcontractors $9,000.00 Equipment Rental and Installation $12,000.00 Electrical Engineering $1,500.00 Lighting $5,000.00 Travel, Accommodations, Local Transport, and Per Diem $9,500.00 Insurance and legal services $2,500.00 Photo and video documentation $2,000.00 Art / Design and Admin/Project Management Fee (15%) $26,250.00 Contingency (5%) $8,750.00 Total Proposed $175,000.00 25 Exhibit 3 Payment and Completion Schedules and Waiver of Claims Muirfield Drive Public Art Project Payment Schedule The Agency shall pay the Artist a fixed fee of $175,000 which shall constitute full and complete compensation for all the services performed and materials furnished by the Artist under this Agreement. Payment shall be made in accordance with the following scheduled installments, each installment representing full and final payment for all services and materials provided prior to payment thereof: a. $25,000 upon the execution of this Agreement, recognizing that the Artist will invest time and expense in preparing the Design as set forth under Section 1.3(a); b. $75,000 upon submission of the Revised Design and construction documents as set forth under Section 1.3(c); This milestone will initiate fabrication, cover fabricator’s deposit and initial materials purchasing. c. $50,000 upon 50% completion of the fabrication of the full-size sculpture elements; This milestone will entail fabrication documentation review and initiate the final material purchasing and fabrication installment payment. d. $10,000 within 15 days after the delivery and installation at the Site as set forth under Section 1.7; e. $10,000 within 15 days after the Artist provides the Agency with photographic documentation and written instructions for the maintenance and preservation of the Artwork as set forth under Section I .7(e) and (f); f. $5,000 within 15 days after final acceptance of the Artwork by the Agency as set forth under Section I .8(e). 26 Completion Schedule The Artist shall complete the design fabrication and installation of the Artwork by the following schedule: Muirfield Drive PUBLIC ART PROJECT TIMELINE *Project schedule contingent upon payment schedule and timely disbursements of funds. **Artist is not subject to delays caused on behalf of Agency. Nov XX, 2024 City of Dublin enters into contract with Ivan Depeña Nov 13-31, 2024 Project kick-off Electrical Permitting Process Initiated Structural Engineering Nov - Jan 2024 Design Development (Refined Design) Client Approval of Final Artwork Electrical Permitting Process Complete Electrical contractor hired Jan - Mar 2024 Fabrication Kick-off and Purchasing of Materials Site Preparation Complete Jun 2025 Fabrication Check in with documentation 50% Sept 2025 Completion of Fabrication Installation of Structural Footings Sculpture Transportation Mar 2026 Installation Completion and Client Acceptance TBD 2026 Dedication Ceremony 27 Unconditional Waiver/Release of Claims & Receipt of Final Payment To all whom it may concern: Ivan Depeña (“Contractor”), in consideration of payment by Ivan Depeña acknowledges it has been paid in full for all labor, materials, services or work provided in connection with the construction and installation of the Artwork for the Dublin Art in Public Places Project located at Parcel Number 60034307034000, north of Muirfield and Whittingham Drive in Dublin Ohio (“the Project”), and does expressly waive, release and relinquish any and all rights and all claims of any kind or nature, that the Contractor had, now has or may hereafter acquire against the Project, Ivan Depeña and the City of Dublin, by reason of furnishing or providing work, labor and/or materials on the Project. Contractor also represents and warrants that Contractor has not filed, or has not caused to be filed, any mechanics’ liens against the Project at any time. Contractor further acknowledges that it has been paid in full for any and all work, labor and/or materials that was performed or provided by Contractor on the Project. THE INDIVIDUAL SIGNING THIS FINAL UNCONDITIONAL WAIVER/RELEASE OF CLAIMS AND RECEIPT OF FINAL PAYMENT WARRANTS THAT HE/SHE HAS FULL AUTHORITY TO EXECUTE THIS DOCUMENT ON BEHALF OF THE CONTRACTOR. By: ___________________________________ Print Name: ______________________________ STATE OF ______ COUNTY OF _________________ On this day of , 2024, there appeared before me, a Notary Public in and for said County (“Contractor”), by and through its and acknowledges the signing of the foregoing document to be his/her free and voluntary act and deed and that of said Contractor. IN TESTIMONY THEREOF, I have hereunto subscribed my name and affixed my seal on the day and year set forth. Notary Public MY COMMISSION EXPIRES: __________________ 28 Insurance -- General Exhibit 4 Insurance A. The Artist shall secure and maintain, at his/her own expense, General Liability insurance in an amount not less than One Million Dollars ($1,000,000.00) per occurrence. B. The Artist shall advise the City of any applicable exclusions to the insurance policy that could affect an action arising under this Contract. C. The Artist shall not cancel any insurance coverage without first obtaining alternative insurance. Additionally, the Artist shall not cancel or materially change the insurance policy without first providing the City with at least 30 days’ advance written notice. D. The above referenced insurance shall be maintained in full force and effect during the life of this Contract. A certificate showing that the Artist is carrying the above referenced insurance in at least the above specified minimum amount shall be furnished to, and approved by, Dublin prior to the start of work on the project and before Dublin is obligated to make any payments to the Artist for the work performed under the provision of this contract. This Certificate shall clearly reflect that the City of Dublin is an “Additional Insured” E. The duty to defend in the insurance policy must also cover the City. _______________________________________________ (Artist’s signature) _______________________________________________ (Print Artist’s name) 29 Exhibit 5 Transfer of Title 1. Transfer of Title. For good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Artist does hereby transfer and convey to the City of Dublin, Ohio and its successors and assigns (the “City”), all right, title, and interest in and to the ownership of the work “S/WING” (the “Artwork”). 2. Warranties. The Artist represents and warrants that: (a) the Artwork is solely the result of the artistic effort of the Artist; (b) except as otherwise disclosed in writing by the Artist to the City, the Artwork is unique and original and does not infringe upon any intellectual property rights of any person or entity; (c) the Artwork, or duplicate thereof, has not been sold or accepted for sale elsewhere; (d) the Artist has not granted any license, permission, or assignment of rights related to the Artwork to any other person or entity; and (e) the Artwork is free and clear of any liens from any source whatever. The Artist covenants to indemnify and hold harmless the City against any charges, damages, costs, attorney’s fees, judgments, or losses of any nature which arise as a result of the Artist’s breach of the warranties set forth in this Section. ARTIST __________________________________ Ivan Depeña Date: _______________________ STATE OF _______________________ COUNTY OF _______________________ On this day of ________, 2024, before me, a Notary Public in and for said county and state, personally appeared Ivan Depeña (“Artist”), who executed the foregoing assignment and who acknowledged that such signing is the free act and deed of Artist. IN WITNESS HEREOF, I have hereunto set my hand and official seal. ________________________________________ Notary Public ________________________________________ My Commission Expires: 30 Exhibit 6 Reproduction Rights 1. License. For good and valuable consideration, the receipt and sufficiency of which is acknowledged, Ivan Depeña (the “Artist”), hereby grants to the City of Dublin, Ohio and its successors and assigns (the “City”), and other parties duly authorized by the City, a royalty-free, non-exclusive, worldwide, perpetual, irrevocable license to engage in the following activities related to the works entitled “S/WING” (collectively, the “Work”): (a) to publicly display the Work; and (b) to use the Work for all standard community educational, public relations, tourism, and arts promotional purposes including, but not limited to, lending the Work, reproducing or preparing photographs, videos, or other two-dimensional reproductions of the Work, and displaying, distributing, and transmitting such reproductions to the general public. Such reproductions and transmissions may include, but are not limited to, magazines, books, newspapers, journals, brochures, pamphlets, exhibition catalogs, films, video, slides, negatives, prints and electronic media, DVD, CD, computerized retrieval systems, and by all means or methods now known or hereafter invented. Images of the Work used by the City shall be accompanied by text that states the title of the Work, “S/WING” and the Artist’s name, “Ivan Depeña”. 2. Artist’s Rights. Unless otherwise provided, the Artist shall retain ownership of the rights granted under Section 106 of the Copyright Act of 1976, 17 U.S.C. § 106. In view of the intention that the Work is to be unique, the Artist shall not make any additional two or three-dimensional reproductions of the Work, nor shall the Artist grant permission to others to do so, except as provided herein or with the prior written permission of the City. Notwithstanding the exclusivity of the license granted in Paragraph 1 hereof, the Artist shall be permitted to create two- dimensional copies of the Work and to use such copies in a non-commercial manner for the exclusive purpose of promoting the Artist’s role as the creator of the Work as part of the Artist’s portfolio. In the context of such use, the Artist shall include a credit that reads substantially as follows: “S/WING“, an original work created by Ivan Depeña commissioned for the City of Dublin, Ohio.” In no event shall the Artist engage in any activity that tends to disparage the City or that negatively impacts the value of the Work. 3. The Visual Artist Rights Act (VARA) of 1990 was established as federal law to recognize the unique characteristic of art works as distinct from works-for-hire, and specifically to protect the rights of artists working in the public realm. Adherence to this law remains an important underpinning of the very notion of public art. VARA was created to give artists the right to be credited as the author and to prevent destruction or alteration of their work. The Artist making site-specific and site-determined artwork recognizes that public sites sometimes change uses and that the protection of a work is different than that in a museum setting. At the same time, the artist’s reputation is based on that work and its integrity. The City must notify the artist whenever the work is to be altered, relocated, or removed. Such notice must be provided in writing at least 120 days before the alteration, relocation, or removal. This is in the 31 City’s interest, as the Artist may find a more creative solution for re-integration, give instructions for storage, or find another buyer. If the piece is to be removed permanently, the Artist should be given the first right to regain ownership, remove the artwork, or disclaim authorship. In the event of damage, alteration, or destruction of an Artwork that is not remedied to Artist’s satisfaction, or relocation without Artist’s approval, if the Artist believes the Artwork no longer represents his/her work, the Artist should have the right to remove his/her name from the Artwork. If the notice provisions related to modification, alteration, or removal provided herein are met, the Artist agrees to waive his rights under VARA. Additionally, the Artist’s VARA rights and analogous rights arising under federal, state, or foreign laws shall cease with the Artist’s death and do not extend to the Artist’s heirs, successors, or assigns. 4. Copyright Registration and Enforcement. The Artist will retain all rights and obligations related to the enforcement of the copyright in the Work. The Artist must receive prior written approval from the City before making any claim or demand related to copyright in the Work, and must promptly notify the City in writing of any claim or demand asserted against the Work. The Artist will consult with the City on a cooperative basis in any enforcement or defensive action involving copyright in the Work, however, all costs related to the enforcement or defense of claims involving copyright in the Work shall be borne exclusively by the Artist unless otherwise agreed in writing. 5. Warranties. The Artist represents and warrants that: (a) the Work is solely the result of the artistic effort of the Artist; (b) except as otherwise disclosed in writing by the Artist to the City, the Work is unique and original and does not infringe upon any intellectual property rights of any person or entity; (c) the Work, or duplicate thereof, has not been sold or accepted for sale elsewhere; (d) the Artist has not granted any license, permission, or assignment of rights related to the Work to any other person or entity; and (e) the Work is free and clear of any liens from any source whatever. The Artist covenants to indemnify and hold harmless the City against any charges, damages, costs, attorney’s fees, judgments, or losses of any nature which arise as a result of the Artist’s breach of the warranties set forth in this Section. 6. Future Transfer. The Artist has separately transferred to the City title in and to the Work. The Artist recognizes and agrees: (a) that the City may further donate, transfer, or otherwise convey the Work and title thereto; (b) that the Artist’s licenses, obligations, waivers, and warranties with respect to the Work shall be ongoing regardless of any future conveyance of the Work; and (c) that any subsequent owner of the Work will hold and enjoy the same rights in and to the Work as granted herein to the City. 32 ARTIST Ivan Depeña STATE OF Date: COUNTY OF On this day of ________2024, before me, a Notary Public in and for said county and state, personally appeared Ivan Depeña (“Artist”), who executed the foregoing assignment and who acknowledged that such signing is the free act and deed of Artist. 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DQ\EUHDFKE\DQRWKHU3DUW\EHGHHPHGDZDLYHURIDQ\ULJKWVRUUHPHGLHVZLWKUHVSHFWWRVXFK EUHDFKRUDQ\VLPLODUEUHDFKLQWKHIXWXUH *RYHUQLQJ/DZ 7KLV028VKDOOEHJRYHUQHGE\DQGFRQVWUXHGLQDFFRUGDQFHZLWKWKHODZV RIWKH6WDWHRI2KLR &,7<2)'8%/,12+,208,5),(/'$662&,$7,21,1& 6LJQDWXUH BBBBBBBBBBBBBBBBBBBBBBBBBBB 6LJQDWXUH 3ULQW1DPH 0HJDQ'2¶&DOODJKDQ 3ULQW1DPH 5REHUW)DWKPDQ 7LWOH &LW\0DQDJHU 7LWOH 3UHVLGHQW%RDUGRI'LUHFWRUV 'DWH BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB 'DWH $SSURYHGDVWR)RUP '8%/,1$576&281&,/ 6LJQDWXUH -HQQLIHU'5HDGOHU 3ULQW1DPH 'DYLG*XLRQ /DZ'LUHFWRU&LW\RI'XEOLQ 7LWOH ([HFXWLYH'LUHFWRU 'DWH Y Memo re. Resolution 56-24 – Authorizing the City Manager to Enter into a Contract with Artist Ivan Depeña for the Design, Construction, and Installation of “S/WING” Located at the Northeast Parcel of Muirfield Drive and Whittingham Drive Date: October 29, 2024 Page 2 of 2 completion. $175,000 from the Hotel/Motel Tax fund was included in the Q3 supplemental appropriation (Ordinance 36-24). The Muirfield Association will donate a portion of the designated parcel, up to and including the entire parcel, to the City at no cost per the MOU. The value of the donated site will be applied to the OFCC grant match requirement of $87,500. The Association will also grant any necessary easements to the City and will continue its current landscape responsibilities of the site. The City will maintain the art piece itself as it will be included in the City’s inventory of commissioned artwork. The donation of the parcel will be presented to City Council by Ordinance at a future meeting following the execution of the contract with the artist. The Project is planned to be completed by spring 2026, before the Memorial Tournament. Recommendation Staff recommends approval of Resolution 56-24 Authorizing the City Manager to Enter into a Contract with Artist Ivan Depeña for the Design, Construction, and Installation of the “S/WING” art project located at the northeast parcel of the intersection of Whittingham Drive and Muirfield Drive.