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HomeMy WebLinkAbout16-10 ResolutionRECORD OF RESOLUTIONS Blank. Inc.. Form No. XW Resolution No. 16-10 Passed 20 AUTHORIZING THE CITY MANAGER TO ENTER INTO A PROFESSIONAL SERVICES AGREEMENT FOR THE PROCUREMENT OF PUBLIC ART WHEREAS, the City of Dublin, Ohio, supports and promotes public art as an important part of the quality of life of the community; and WHEREAS, the City has established the Art in Public Places Program for the creation and display of artwork in public places; and WHEREAS, the City has a long - established cooperative relationship with the Dublin Arts Council to provide leadership and management of the selection of public artwork; and WHEREAS, the City recognizes that art is subjective in nature and that the process for selection of artwork should therefore include minimal political involvement; and WHEREAS, public art in Dublin, Ohio has not traditionally undergone discretionary review by boards and commissions due to the subjective nature of public art; and WHEREAS, the Dublin Arts Council, at the request of the City, has led a national call for artists for public artwork in celebration of the City's 2010 Bicentennial and has assembled a selection committee specifically for review and recommendation of public artwork for display at 225 S. High Street; and WHEREAS, the City of Dublin and the Dublin Arts Council value and have garnered community input regarding the site, process and proposed artworks; and WHEREAS, authority lies with the City of Dublin to make payments to an artist for the acquisition, design execution, fabrication, transportation, and installation of artwork, including payments for the support of an artist selection process, design, execution and placement of artwork. NOW, T REFORE, BE IT RESOLVED by the Council of the City of Dublin, State of Ohio, of its elected members concurring, that: Section 1 . The City Manager is hereby authorized to enter into a professional services agreement substantially in the form attached as "Exhibit A" for the procurement of public art with Mid -Ocean Studios, Inc., as recommended by the Dublin Arts Council selection committee. Section 2 . The review of the proposed artwork by Dublin City Council and Dublin boards and commissions is hereby waived. Section 3 . The final design is required to undergo life and safety review under any applicable ordinances or laws of the City or the State of Ohio. Section 4 . This Resolution shall be effective upon passage in accordance with Section 4.04(a) of the Revised Charter. Passed this 411 day of k 10. a -" Mayor - Pre s' ' g Officer ATTEST: Clerk of Council Office of the City Manager 5200 Emerald Parkway • Dublin, OH 43017-1090 CITY OF DUBLIN_ Phone: 614 - 4104400 • Fax: 614 - 4104490 Memo To: Members of Dublin City Council From: Terry Foegler, City Manager 1_ \X\\_ -_ Date: February 18, 2010 Initiated By: Sara Ott, Sr. Project Manager Re: Resolution 16 -10 Authorizing the City Manager to Enter into a Professional Services Agreement for the Procurement of Public Art Background On February 4, 2010, the Dublin Arts Council (DAC) hosted a community gathering for three artists to present their proposed designs for a major public art commission in celebration of the City's 2010 bicentennial. Immediately after the presentations, the DAC selection committee reviewed citizen comments and entered deliberations to determine a recommendation to the City of which artist and design to commission. An announcement of the DAC committee's recommendation to commission Brower Hatcher of Mid -Ocean Studios, Inc. occurred on February 8, 2010 (see attached copy of slides). Summary Resolution 16 -10 authorizes the City Manager to enter into a professional services agreement for the procurement of public art from Brower Hatcher of Mid -Ocean Studios, hic. and delineates the review process for the proposed artwork. Terms of the proposed agreement include: • articulating the scope of services; • outlining the review process for non - aesthetic design approval; • authorizing a maximum fee to be paid by the City of $150,000 for all services, including design, fabrication, transportation, site improvements, artist travel, and contingency; • warranties, copyright licensing, progress reporting and payment schedule; • waiver of City of Dublin fees for review services; and • insurance and default provisions. The proposed agreement is based upon the well- respected Annotated Model Public Art Commission Agreement by the Americans for the Arts. Staff anticipates that only minor adjustments to the proposed agreement will be needed, based upon the unique nature of the recommended design. Mr. Hatcher hopes to complete contract negotiations in February 2010 and to design and install the artwork by September 30, 2010. As with past artwork acquired through the Art in Public Places program, this project will be funded from the City's Hotel/Motel Tax Fund. Memo: Professional Services Agreement for Public Art February 18, 2010 Page 2 of 2 In addition to authorizing the proposed agreement, Resolution 16 -10 formalizes Council's long- standing practice of not requiring public art to undergo discretionary reviews by Dublin development review Boards and Commissions. City Council has entrusted the DAC for over two decades to find and recommend artists and projects to support the creation of public art for Dublin. This process has worked well by having a selection committee that is independent from the City charged with determining aesthetic and artistic appropriateness, based upon the proposed site and selection criteria established in the national call for artists. As a matter of general policy, Dublin's public art projects have not been subject to the City's normal discretionary development review and approval processes in order to ensure the independence of DAC in art and artist selection. This type of process is frequently used by cities around the country, and has served Dublin well. The proposed designs for the bicentennial commission underwent an aesthetic review by the DAC's selection committee. The DAC's selection committee was comprised of a Dublin community member, a Dublin Historical Society representative, a Dublin Arts Council board member, a public artist with experience in Dublin, and a public art expert. The DAC and City of Dublin also have provided community engagement opportunities during the process, including soliciting oral and written feedback about the site and proposals. On the evening of Thursday, February 18, 2010, the DAC will host a neighborhood meeting for additional community input regarding the selection and approval process. An update regarding the meeting will be provided at the February 22 Council meeting. Additionally, comments collected from the audience at the February 4 community presentations have been shared with Mr. Hatcher. Finally, City staff believes the proposed design is appropriate for the site and is in compliance with deed restrictions on the property. Staff will work with Mr. Hatcher to ensure safe design, fabrication and installation of the artwork. Recommendation Staff recommends approval of Resolution 16 -10. Attachment: DAC Presentation from 02 -08 -10 dublin(dltS�cound Dublin Arts Council engages the community, cultivates creativity and fosters life -long leaming through the arts. Dublin Bicentennial Public Artwork Selection Committee Mark Emerson: Community Representative Irene Finck: Public Art Consultant Gayle Holton: Dublin Historical Society John Losco: DAC Board Member Todd Slaughter: Public Artist Non - voting: Sara Ott: City Manager's office David Guion: Dublin Arts Council Artist Selected Presentations Feb. 4, 2010 in the Abbey Theater More than 50 community members in attendance Audience encouraged to ask questions of the artists, leave comment cards Selection Committee deliberated more than three hours. Artist Brower Hatcher Mid -Ocean Studio Providence, Rhode Island dublin(dlfS�cound Dublin Arts Council engages the community, cultivates creativity and fosters life -long learning through the arts. Exhibit A THIS AGREEMENT, is entered into this day of , 2010, by and between City of Dublin, Ohio, a municipal corporation duly organized and validly existing under the Constitution and laws of the State of Ohio and its Charter (hereinafter the "Agency "), with offices at 5200 Emerald Parkway, Dublin, Ohio 43017, and Mid -Ocean Studio Inc. (hereinafter the "Artist) with offices at 27 Sims Avenue, Providence, Rhode Island 02909. 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 by the Agency through a national call for artists adopted by the Agency to design, execute, fabricate and install the Artwork, as described in Exhibit 1 in a public space located at 225 South High Street, 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: Article 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 and fabrication of the Artwork at the Site in accordance with the specified schedule. 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. 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 obj ectives. c. The Artist shall prepare the design concept and the corresponding budget described in Section 1.3 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 participate in design and construction coordination meetings with Agency, general contractor, architect and other parties, as appropriate, to communicate about the Artwork and to ensure appropriate integration and/or installation of the Artwork. e. The Artist shall complete the fabrication of the Artwork by the scheduled installation date as provided in Section 1.4(b)(i) of this Agreement. f 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. g. The Artist shall prepare the Site in accordance with the specifications detailed in the approved design concept in Section 1.3 of this Agreement. The Artist shall be responsible for all expenses, labor and equipment to prepare the Site for the timely transportation and installation of the Artwork. The Artist shall complete the Site preparations by the scheduled installation date as provided in Section 1.4(b)(i) of this Agreement or shall contact the Agency in writing informing of any delays. h. The Artist shall arrange the transportation and installation of the Artwork in consultation with the Agency. If the Artist does not install the Artwork himself or herself, Artist shall supervise and approve the installation. i. The Artist shall provide required insurance in amounts and limits specified in Article 6 and Exhibit 4. j. The Artist shall provide a list of all subcontractors along with a copy of the agreement between the Artist and each subcontractor. k. 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. 1. The Artist shall provide photographic documentation of the Artwork. M. The Artist shall participate in, with reasonable advance notice, meetings, ceremonies and the like, as deemed necessary by the Agency. 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 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 C [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. 1.3 Design a. Concept/Schematic i. The Artist submitted a design concept/schematic (the "Design') with an accompanying budget, pursuant to a competition organized for the procurement of an Artist to design and fabricate an Artwork suitable for the current project, which Design was selected and approved by the Agency. The Design and Budget shall be attached to this Agreement as Exhibit 1 and Exhibit 2 respectively. b. Approval i. Within 30 days after the execution of this agreement, the Agency shall notify the Artist if it requires any revisions to the 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. c. Final /Construction Documents i. The Artist shall prepare structural drawings detailing every physical feature of the construction of the Artwork and its integration with the Site. These drawings shall indicate any risks involved in the construction, integration and maintenance of the Artwork, as well as any third party subcontractors needed to work on the project. ii. Where appropriate, the Artist shall present such drawings 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 and the Artist shall provide the Agency with such certification. iii. The Artist shall present the 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. 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 any City of Dublin permit fees and review fees. 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. C. Fixed Fee i. The Agency shall pay the Artist a maximum fee of $150,000 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 and required consultant review fees. The Agency shall not be responsible to the Artist for any funds in excess of the $150,000 fee. 1.5 Fabrication Stage a. The Artist shall fabricate and install the Artwork in substantial conformity with the Design. The Artist may not deviate from the approved design without written approval of the Agency. 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 preformed 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 conform to the Design or Revised Design, the Agency reserves the right to notify the Artist in writing deficiencies and that the Agency intends to withhold the next budget installment. e. The Artist will promptly cure the Agency's objections 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 that the Artwork does not conform, 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 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. g. The Agency may inspect the Artwork within 30 days after receiving notification pursuant to paragraph (f), prior to installation, to determine that the Artwork conforms with the 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 5 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. i. The Artist is responsible for ensuring that the Site 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 are in need of correction. The Artist shall be responsible for all expenses in making Site corrections. 1.6 Changes to Design a. Prior to the execution of any change in the approved 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 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 Design. b. If the Agency approves the changes, the Agency shall promptly notify the Artist in writing. The Agency will also make the required presentations to the approved bodies. C. If the Agency disapproves of the changes, the Agency shall promptly notify the Artist in writing and the Artist shall continue to fabricate the Artwork in substantial conformity with the Design. 1.7 Installation a. Upon the Agency's final approval of the fabricated Artwork, as being in conformity with the Design, the Artist shall deliver and install the completed Artwork to the Site in accordance with the schedule provided for in Section 1.4(b). Transportation fees shall be paid by the Artist. b. 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 effect or impede the installation of the Artwork and then remediate such conditions, at the Artist's sole expense, with the permission of the Agency. The Artist is responsible for timely installation of the Artwork The Artist may not install the Artwork until authorized to do so by the Agency. C. The Artist shall be present to supervise the installation of the Artwork d. Upon written acceptance of the installation, the Artwork shall be deemed to be in the custody of the Agency for purposes of Article 4 and Article 6 of this Agreement. e. Within 15 days after installation of the Artwork, the Artist shall furnish the Agency with the following photographs of the Artwork as installed: i.) Two sets of three 35 mm color slides of the completed Artwork, one taken from each of three different viewpoints; ii.) Two sets of three different 8" x 10" glossy black and white prints of the Artwork and negatives; iii.) A set of three 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. f 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 30 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 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 30 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. 6 ii.) The Agency shall be solely responsible for coordinating public information materials and activities related to public presentations. Article 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 International Revenue Department in a 1099 statement. Article 3 Term of Agreement a. Duration This Agreement shall be effective on the date that this contract 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 extension shall be in writing, signed by both parties, and attached to the schedule under Section 1.4(b)(i), which is attached as Exhibit 3. d. Force Majeure 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, excluding any site conditions. 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. Article 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. 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. Article 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; E) 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 consistent 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. 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 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. f 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. g. 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. Manufacturer's Warranties. To the extent the Artwork incorporates products covered by a manufacturer's warrant. Artist shall provide copies of such 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. If the Agency fails to maintain the Artwork in good condition, the Artist, in addition to other rights or remedies the 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. Article 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. 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 any claims brought arising out of breach of this Agreement or any negligent occurrence which occurs pursuant to the performance of this Agreement by the Artist, its subcontractors, agents or employees. 01 b. To the extent permitted by law, the Agency shall indemnify the Artist, Artist's subcontractors, agents or employees from any claims brought arising out of the breach of this Agreement or any negligent occurrence which occurs pursuant to the performance of this Agreement by the Agency, its respective officers, agents, and employees. 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 claim 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 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. Article 7 Ownership and Intellectual Property Rights 7.1 Title 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 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 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 The Artist shall grant irrevocable reproduction rights for non - commercial uses as identified in Exhibit 6, attached herein. Article 8 Reserved Article 9 Permanent Record The Agency shall maintain on permanent file a record of this Agreement and of the location and disposition of the Artwork. Article 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. 10 Article 11 Nondiscrimination The Artist shall not discriminate, in any way, against any person on the basis of race, sex, color, age, religion, sexual orientation, disability, ethnicity, or national origin, in connection with or related to the performance of this Agreement. Article 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. Article 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 15 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. The Artist shall provide an accounting. 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, 11 delivered and installed. However, the Artist shall retain the copyright in the Artwork and all rights under Article 7 and Article 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. Article 14 Death or Incapacity 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 Article 13. However, nothing in this Article shall obligate the Agency to accept the Artwork. a. In the event of incapacity, the Artist shall assign the Artist's obligations and services under this contract to another artist provided that in the Agency's sole discretion, approves of the new artist. Alternatively, the Agency may elect to terminate this Agreement. The Artist shall retain all rights under Article 7 and Article 8. The Artwork and any reproductions thereof shall contain a credit to the Artist and a copyright notice in substantially the following form: Copyright C [Artist's name, date of publication]. b. In the event of death, this Agreement shall terminate effective the date of death. The Artist's heirs shall retain all rights under Article 6 and Article 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.] Article 15 Notices and Documents Notices required under this Agreement shall be delivered personally or through the registered or certified mail, return receipt requested mail, 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 5200 Emerald Parkway Dublin, OH 43017 12 For the Artist Mid -Ocean Studio Inc. 27 Sims Avenue Providence, Rhode Island 02909 Notice shall be deemed effective on the date personally delivered or, if mailed, three (3) days after the postmarked date. Article 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. Article 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. Article 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. Article 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. Article 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 or arbitration panel or mediation procedure 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 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. 13 Article 21 Choice of Law This contract shall be governed by the laws of the State of Ohio both as to interpretation and performance. Article 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. Design documents 2. Budget 3. Schedule of Payments 4. Insurance 5. Transfer of Title 6. Reproduction Rights 14 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 C Terry Foegler City Manager Approved as to Form: C Stephen J. Smith Law Director ARTIST MID -OCEAN STUDIO INC. C Brower Hatcher Artistic Director 15 Exhibit 1 Description of the Artwork [This exhibit should provide a detailed narrative describing the proposed artwork with explicit detail regarding the overall form or design, scale, dimensions, color, and surface treatment of the Artwork.] 16 Exhibit 2 Artwork Budget 17 Exhibit 3 Payment Schedule The Agency shall pay the Artist a fixed fee of $150,000.00, 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. $15,000 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; b. $45,000 upon submission of the Design as set forth under Section 1.3;] C. $30,000 upon the Agency's notification to the Artist of its approval of the Design as set forth under Section 1.3; d. $30,000 within 15 days after the delivery and installation at the Site as set forth under Section 1.7; e. $15,000 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 1.7(e) and (f).] f $15,000 within 15 days after final acceptance of the Artwork by the Agency as set forth under Section 1.8(e). Payment Schedule: Payment Amount Percentage of Total 1 $15,000 10% 2 $45,000 30% 3 $30,000 20% 4 $30,000 20% 5 $15,000 10% 6 $15,000 10% Total Amount Not To Exceed $150,000 100% 18 Exhibit 4 Insurance Insurance — General A. The Artist shall secure and maintain, at his /her /its own expense, errors and omissions insurance in an amount not less than One Million Dollars ($1,000,000.00) per claim /annual aggregate to protect himself from any claim arising out of the performance of professional services and caused by negligent acts, omissions or negligent acts for which the Artist may be legally negligent. The Artist shall maintain said coverage for the entire contract period until final acceptance by Dublin. B. In addition to errors and omissions insurance, the Artist shall also secure and maintain, at his /her own expense, insurance for protection from claims under Worker's Compensation acts, claims for damages because of bodily injury including personal injury, sickness or disease or death of any and all employees or of any person other than such employees, and from claims or damages because of injury to or destruction of property including loss of use resulting therefrom, and any other insurance prescribed by laws, rules, regulations, ordinances, codes or orders. C. 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. D. The Artist shall secure and maintain, at his /her /its own expense, Property insurance for protection from claims or damages because of damage to or destruction of property including loss of use resulting therefrom in an amount not less than Five Hundred Thousand Dollars ($500,000.00). Dublin shall be held harmless for any damage to the Artist's property and /or equipment during the course of performance under the Contract. E. The above referenced insurance shall be maintained in full force and effect during the life of this Contract. Certificates showing that the Artist is carrying the above referenced insurance in at least the above specified minimum amounts 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. All such Certificates, with the exception of those for Worker's Compensation and Errors & Omissions coverage, shall clearly reflect that the City of Dublin is an "Additional Insured ". (Artist's signature) (Print Artist's name) 19 Exhibit 5 Transfer of Title 1. Transfer of Title For good and valuable consideration, the receipt and sufficiency of which is acknowledged, Brower Hatcher, Mid -Ocean Studio Inc. (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 entitled [INSERT TITLE OF ARTWORK] (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 Brower Hatcher, Mid -Ocean Studio Inc. Date: STATE OF ) ss: COUNTY OF ) On this day of 2010, before me, a Notary Public in and for said county and state, personally appeared Brower Hatcher ( "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 20 Exhibit 6 Reproduction Rights 1. License For good and valuable consideration, the receipt and sufficiency of which is acknowledged, Brower Hatcher, Mid -Ocean Studio Inc. (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 work entitled [INSERT TITLE OF WORK] (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. 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: [`INSERT TITLE OF WORK'], an original work created by [INSERT ARTIST'S NAME] and commissioned for the City of Dublin, Ohio's Bicentennial Public Artwork Project." 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. VARA Waiver The Artist acknowledges the rights of attribution and integrity conferred by Section 106A(a), paragraphs (2) and (3) of Title 17 of the U.S. Code, and any other rights of the same nature granted by U.S. federal, state or foreign laws, and of his /her own free act hereby waives such rights with respect to the Work in connection with the installation, exhibition, conservation, maintenance, relocation, removal, disposal, or destruction of the Work by the City (or anyone duly authorized by the City). The Artist recognizes and agrees that nothing shall preclude any right of the City: (a) to relocate the Work; (b) to repair or modify the Work to conform to an acceptable standard of public display and/or to address potential health or safety concerns; (c) to remove the Work from public display; or (d) to destroy the Work. 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 shall, at the Artist's expense, cause to be registered with the United States Register of Copyrights, a copyright in the Work in the Artist's name. 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 21 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. ARTIST Brower Hatcher, Artistic Director Mid -Ocean Studio Inc. STATE OF COUNTY OF ss: On this day of , 2010, before me, a Notary Public in and for said county and state, personally appeared Brower Hatcher ( "Artist "), who executed the foregoing assignrent 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: 22