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8.7 South Ninth Street Median Public ArtCITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME 3/14/11 4:00 P.M. APPROVED FOR AGENDA SECTION ORIGINATING DEPARTMENT: NO: 8 AGENDA: ARTS AND HUMANITIES ITEM NO. 7 BY: BY: Steve Hardesty Page 1 ITEM: th Authorize artwork contract for the South 9 Street Median Project betw een the City of Salina and Barbara Grygutis. BACKGROUND: In April 2010, the City Commission granted approval for the artwork component of the South Ninth Street median project. The artwork “Silver Lining” by Barbara Grygutis will be placed within the median as a southern gateway to the city. The artwork design emulates tree lines and shelter belts so familiar to the landscape of Salina and central Kansas. The large-scale sculptural work will become an identifier, a marker of “welcome” and interest to visitors and the community. The staff report that was previ ous provided to the City Commission is attached. It contains considerably more detail regarding the art selection process. T he attached final draft has been provided to the artist for review and approval. It may be necessary to report minor revisions to the agreement or remove this item from the agenda depending on the artist’s response. FISCAL NOTE: th The fourth phase of the South 9 Street Improvement project was authorized with a total budget of nd $6,500,000 on March 2, 2009 which accounted for all of the expenses associated with the project such as design, right-of-way acquisition, construction costs and financing costs as well as the South th 9 Street Art component. Expenditures to date total $6,104,710. The public art component was authorized at $250,000 with $230,000 being allocated to the art/artist to be selected and $20,000 being reserved as contingency. Early in the Request for Proposal process, a question was raised about which portion of the project budget would fund site preparation work such as construction of a pad for the artwork as well as extension of utilities such as electricity or water if they were needed. It was jointly decided by Public Works, the City Manager’s Office and Arts & Humanities that the work in question could be incorporated in to the work associated with constructing the roadway and those expenses would be paid from the construction portion of the budget. After the art/artist was selected the artist asked whether the City could assist them in securing the services of a crane & operator to install the artwork, and it was agreed that th e Public Works Department would make those arrangements and the related costs would be funded from the construction portion of the budget. Due to the allocation of costs described above, cost estimates associated with the project are summarized below in two categories. 1.) C onstruction Budget Expenses and 2.) Art Budget Expenses. CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME 3/14/11 4:00 P.M. APPROVED FOR AGENDA SECTION ORIGINATING DEPARTMENT: NO: 8 AGENDA: ARTS AND HUMANITIES ITEM NO. 7 BY: BY: Steve Hardesty Page 2 Construction Budget Expenses Footings / Foundations $15,000 Electricity $ 2,000 Crane Rental $ 3,000 Total Estimated Construction Exp $20,000 Art Budget Expenses Artist Contract $230,000 Selection Process Expenses $ 6,547 Performance & Statutory Bond $ 8,000 Builder’s Risk Insurance $ 1,000 Hookers & Riggers Insurance $ 0 Not applicable if City does not operate crane Art Dedication (artist travel & lodging)$ 1,000 Total Estimated Art Expenses $246,547 COMFORMANCE WITH STRATEGIC PLAN: In full support of the strategic plan Goal 3 to pr esent the highest quality services to the community consistent with the governing body’s direction and Goal 6 to make Salina a city with connectivity both physically and socially. RECOMMENDED ACTION: 1. Approve the Artwork Contract with Barbara Grygutis. 2. Take other such action as the City Commission may desire. CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME 04/26/2010 4:00 P.M. APPROVED FOR AGENDA SECTION ORIGINATING DEPARTMENT: NO: AGENDA: Arts and Humanities ITEM NO. BY: BY: Connie Bonfy Page 1 th ITEM: Artist Selection / Project Agreement for the South 9 Street Median between the City of Salina and Barbara Grygutis. BACKGROUND: th In 2008, the South 9 Street Median was identified for artwork placement by City Staff and a Site Committee was formed. In 2009, the Community Art and Design Advisory Committee recommended a Limited Invitational Competition Five artists were invited to reply to a site visit and proposal development opportunity. Proposals would be reviewed by the Site Committee/Artist Selection Panel and the Community Art & Design Advisory Committee (CAD) for final recommendation. The design challenge, commission, budget, selection criteria, and timeline were developed and sent to the invited artists. Four of the five artists accepted the invitation. One artist declined because of a preference to be involved in the earliest conceptual design phase. One additional artist later declined due to health reasons. THE DESIGN CHALLENGE Propose sculptural artwork that will provide visual interest, integrated within selected median/s and proposed landscaping enhancements. The project’s landscaping design provides native prairie grasses and low maintenance plantings…a transition from the more high maintenance plantings in the northern corridor medians. Median designs provide access to electrical and water. The focus will th include an emphasis on creating a ‘gateway’ for the community and those entering via south 9 street. PROPOSAL COMMISSION and ARTWORK BUDGET The commission for proposal development was $1000 which included $500 travel per trip associated with the required site visit and one subsequent proposal presentation. Artwork proposals were presented to the Artist Selection/Site Committee on March 30,2010 who rank ordered project finalists to present to the CAD Advisory Committee. CAD Advisory Committee reviewed and on April 15, 2010 recommended artist/artwork that is now presented to City Commission for artists/project approval. The project artwork budget is $230,000 which includesdesign, fabrication and installation. Selected artist will also provide a written maintenance plan for the artwork. The City’s cost includes landscaping plan adjustments with the landscaping consultants to accommodate the artist’s plan and provide access to electrical needs, concrete pad sites, and technical support for the installation. SELECTION CRITERIA Artwork was selected based on the following criteria: Artistic merit and aesthetic quality of work Artist’s demonstrated professi onal qualifications and experience Artist’s assessed ability to successfully execute proposed project within the CAD project budget and timeline. Appropriate scale and ability to address the gateway context of the site. Considerations to structural and surface soundness and on-going maintenance. CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME 04/26/2010 4:00 P.M. APPROVED FOR AGENDA SECTION ORIGINATING DEPARTMENT: NO: AGENDA: Arts and Humanities ITEM NO. BY: BY: Connie Bonfy Page 2 The artist’s ability to work with City crew and engineering consultants on the site. The artwork does not present a hazard for public safety. TIMELINE: Reply to Letter of Invitation received by November 10, 2009 Site Orientation, January 15, 2010 Proposal and submittal requirements due to Salina Arts & Humanities Commission by March 25, 2010 Finalists Proposal Pres entation, March 30, 2010 Artist/Artwork Selectio n Notification, April 2010 Artwork installed, Fall 2010 – Spring 2011 PROPOSAL SUBMITTAL REQUIREMENTS Artwork design proposal A letter of interest (one page) stating your interest in the project, and a design statement for the proposed sculpture/s. A current resume, including e-mail and website addresses. Up to ten (10) digital jpg images and brief descriptions of previous work. SITE COMMITTEE / SELECTION PANEL After listening to three artist presentations and reviewing their proposals, the Site Committee ranked two artists high enough to forward to the Community Art and Design Advisory Committee for review. The two artists who were ranked most high presented two very different approaches. One presented a concept that was a low, undulating, wave-like abstract stainless steel walls that covered a longer length of the median to be surrounded by grasses and lighted from fixtures placed within the grass. One presented a more engineer ed and realistic approach (focusing on the Kansas tree lines seen in hedgerows) lighted from within the sculpture, more vertical (16-20’) thus offering a more noticeable gateway presence in a smaller footprint on the median. The third presentation scored too low to be passed onto CAD for consideration. It utilized five, 20-foot repurposed windmill towers to be used as pedestals for whimsical decorative cows. Following the site committee meeting, CAD Advisory Committee met and considered the minutes of the site committee and highlights from the artist’s PowerPoint proposals. After thoughtful review and consideration of quality, gateway context, and community, CAD agreed by consensus to recommend “Silver Lining” by Barbara Grygutis of Tucson, AR for approval by the City Commission. The artist’s statement and design proposal states the following: Concept: The work of art is designed to create a gateway for the southern entrance to the City of Salina. Currently, the traveler entering the City from the south is greeted by a generic commercial landscape. The work of art is conceived as a marker for the community that creates a sense of place and speaks to its place in the landscape. The sculptural gateway will be composed of three elements. CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME 04/26/2010 4:00 P.M. APPROVED FOR AGENDA SECTION ORIGINATING DEPARTMENT: NO: AGENDA: Arts and Humanities ITEM NO. BY: BY: Connie Bonfy Page 3 The shelter belts of trees which dot the landscape to the south along I-135 create a unique Kansas look. It is this beauty that has inspired me and I choose to celebrate in creating this work of art. The sculptures I have designed for the medians along the South Ninth Street corridor are based on photographs taken as I traveled across the state during my recent site visit. These photographs of shelter belt and river trees create a unique and distinctively Kansas experience for the viewer. Titled, “SILVER LINING,” the central theme for this work of art, envisioned for the median along the new and enlarged South Ninth Street in Salina, Kansas, is the creation of a southern gateway to the city. The newly expanded South Ninth Street links I-135, a major highway across the north south axis of the country, to Salina. The entrance into Salina, will celebrate the City as a unique community. The sculpture will be an identifier, a marker inspired by Salina’s familiar landscape, a contemporary art statement, and a welcoming entrance to your City. NOTE: The final location for the sculpture in the median will be decided through consultation with the City of Salina after a thorough review of utility placement, traffic signs and signal poles in the median location. Materials: The sculpture will be fabricated with stainless steel. The two outer layers of stainless steel sheet will be heavy perforated stainless sheet metal. These two outer layers will form a “light box.” The inner tree image cut out will be of solid stainless steel secured in the fabrication construction. The inner forms will appear to float inside the light box. During the day, the natural light will create shifting patterns. The sculpture will take on different tones with the natural lighting changes throughout the day. LED night lighting will add a dynamic feature and another way to view the entire piece. Interesting shadow effects will also add to the overall effect. Lighting: LED light fixtures will be placed inside the sculptural forms. The lamp color will be white. The LED lamps are rated at – 40 degrees Fahrenheit and are able to withstand the very cold weather. At night, soft white light will illuminate the sculptural cut out and create a glowing effect from inside the light box. Lighting colors can be changed electronically at different times of the year if desired. The LED fixtures are rated for 10 years and come with a three year guarantee. Access panels to the lamps will be designed into the sculpture for easy lamp change when necessary. Engineering: The work of art will be well engineered - stamped and sealed by a structural engineer registered in the State of Kansas. Fabrication: The artist works directly with the fabricator to adapt the artwork design fabrication to meet the best dimension, view placement, and specific site location within the median. The engineering drawings will provide the specific design for the foundations. The fabrication shop will provide shop drawings, to be given to the City of Salina after installation. The sculpture will be fabricated in its entirety in a fabrication studio selected by the artist, based on price quotes received. I work with a selected few fabricating shops and will determine the best one for this project after engineering drawings are completed/approved. CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE TIME 04/26/2010 4:00 P.M. APPROVED FOR AGENDA SECTION ORIGINATING DEPARTMENT: NO: AGENDA: Arts and Humanities ITEM NO. BY: BY: Connie Bonfy Page 4 Installation: The fabricator will supply a template for the bolt pattern, to be available to the contractor who pours the concrete foundations.The sculpture will be shipped fully fabricated and will be lifted via crane onto the site. Technical Requirements: (as determined in prior Site Committee Meeting with City Representatives) 1. Foundation to be poured by City of Salina (per final engineering drawings supplied by artist) on site prior to sculpture installation. 2. Crane to be made available by City of Salina to install sculpture. 3. City of Salina to provide appropriate road closure during installation. (A section of South Ninth Street will have to be closed during the installation) 4. Electrical wiring to be run through conduit to sculpture, per final engineering drawings, will be supplied by City of Salina. Timeline: Engineering 3 months from signing of contract Fabrication 6 months from approval of engineering drawings Installation 1 month fr om approval of fabrication Arts and Humanities staff on behalf of the Co mmunity Art and Design Advisory Committee recommends awarding the contract to Barbara Grygutis for $230,000. CAD feels that her work will be both enjoyed and reflect very well on the Salina community art collection stating, “We are showing the community trees in the different way without compromising quality. Grygutis’ quality is very high.” FISCAL NOTE: These CIP has been budgeted for 2010 at an estimated cost of $240,000. CONFORMANCE WITH THE STRATEGIC PLAN: In full support of the strategic plan Goal 3 to pr esent the highest quality services to the community consistent with the governing body’s direction and Goal 6 to make the Salina a city with connectivity both physically and socially. COMMISSION ACTION: 1. Approve an agreement with Barbara Grygutis for “Silver Lining.” 2. Take other such action as the City Commission may desire. City of Salina, Kansas South Ninth Street Median Project Design, Fabrication, Installation Agreement THIS AGREEMENT , is entered into this _______day of March, 2011, by and between the City of Salina, a Kansas municipal corpor ation, (the “City”) Barbara Grygutis Sculpture LLC, an Arizona limited liabil ity company, (the “Artist’s LLC”) and Barbara Grygutis, individually, (the “Artist”). Recitals A. The City has implemented the Community Ar t & Design Policy pursua nt to the City of Salina Capital Improvement Program by allocating project funding for the establishment and display of artwork in public places. B. The City determined that it requires the a ssistance of an artist to design, fabricate and install a public artwork within the City’s South Ninth Street Median Improvement Project. C. Barbara Grygutis was selected through a limited invitational selection procedure adopted by the City and has been approved by the Community Art & Design Advisory Committee and the City’s governing body based upon her proposed design concept and her experience and expertise in outdoor public art. D. Barbara Grygutis provides her services through the Artist’s LLC. E. The Artist’s LLC and the City wish to undertake the obligations expressed herein. THEREFORE , in consideration of the mutual pr omises and subject to the conditions hereinafter set forth, the parties agree as follows: ARTICLE 1 – General Provisions 1.1 Summary of Contractual Relationship and Terms . 1.1.1 Summary of Contractual Relationship. 1.2.1.Artist’s unique qualifications and responsibility. The City agrees to engage the Artist through the Artist’s LLC and the Artist’s LLC agrees to perform the design, engineering, fabrication, and installa tion services as required under this Agreement in a manner consistent wi th the Artist’s Design Concept and in strict co mpliance with al l terms and cond itions of this Agreement. The selection of the Artist was based upon the unique qualifications of Barbara Grygutis, who shall either be personally responsible for or shall directly supe rvise the performance of all services required of the Artist’s LLC under this Agreement. 1.2.2.Compensation. Subject to the terms and conditions of this Agreement, the City agrees to pay the Artist’s LLC a fixed fee of $230,000.00, which shall constitute full and complete compensation for all the services performed and materials furnished by the Artist’s LLC under this Agreement. Payment shall be made in installments corresponding to the phases of the work outlined in Section 1.4.2 below. 1.2.3.Phasing of work. The responsibilities of the Artist’s LLC and the City under this Agreement can best be addressed in terms of the following phases as described in more detail below: Design and Engineering Review Fabrication Installation Approval and Acceptance 1.2.4.Coordination. All aspects of the services to be provided by Artist’s LLC under this Agreement shall be coordinated through the Community Art and Design Coordinator. 1.1.2 Defined Terms. The following terms and phrases shall have the stated meanings for purposes of this Agreement. 1.1.2.1 “Approved Artistic Design” – the design artistically approved by the City based upon review and comment relating to the Final Artistic Design. 1.1.2.2 “Approved Engineered Design” – the engineered design approved by the City based upon review and comment relating to the Final Engineered Design. 1.1.2.3 “Artist” – Barbara Grygutis, individua lly and as manager for Barbara Grygutis Sculpture, LLC. 1.1.2.4 “Artist’s Design Concept” – the conceptual description of the Artwork as submitted by the Artist for purposes of the artist selection procedure and attached as Exhibit A. 1.1.2.5 “Artist’s LLC” – Barbara Grygutis Sculpture, LLC, an Arizona limited liability company. 1.1.2.6 “Artist’s Engineer” – the Kansas-licensed structural engineer responsible for engineering, stamping, and seali ng the structural integrity of the 2 Artwork and the Artwork Foundation under contract with the Artist’s LLC. 1.1.2.7 “Arts and Humanities Department” – the Arts and Humanities Department of the City of Salina, Kansas. 1.1.2.8 “Artwork” – the creative piece of public artwork designed, fabricated, and installed by the Artist through the Artist’s LLC. 1.1.2.9 “Artwork Foundation” – the engineered concrete foundation upon which the Artwork shall be installed. 1.1.2.10 “Building Official” – the city employee respon sible for enforcement of locally adopted building codes. 1.1.2.11 “CAD” – the Community Art & Design Advisory Committee. 1.1.2.12 “City Engineer” – the City Engineer and administrative head of the Engineering Division of the Public Works Department of the City of Salina, Kansas. 1.1.2.13 “Community Art and Design Coordinator” – the assigned city employee within the Arts and Humanities Department. 1.1.2.14 “Execution Date” – the date of signature of the last party to sign this Agreement. 1.1.2.15 “Fabricator” – the qualified entity with which the Artist’s LLC enters into a subcontract for fabrication of the Artwork. 1.1.2.16 “Final Artistic Design” – the Artist’s proposal for the artistic expression, design, materials, dimensions, and lo cation of the Artwork on the Site consistent with the Artist’s Design Concept and suitable for installation on the Site. 1.1.2.17 “Final Engineered Design” – The Artist’s proposal for the Artwork as engineered by the Artist’s Engineer. 1.1.2.18 “Governing Body” – the Board of Commissioners of the City of Salina, Kansas. 1.1.2.19 “Required Preservation Plan” – the written plan to be provided by the Artist’s LLC describing all materi als and products included in the Artwork and instructions for routine care, upkeep, and maintenance of the Artwork. 1 1.1.2.20 “Site” – the location in the South Nint h Street median at which the Artwork shall be installed, as depicted on the attached Exhibit B. 1.2 – Obligations of the Parties. 1.2.1 Obligations of the Artist and Artist’s LLC. 1.2.1.1 Design, Fabrication, and Installation. The Artist’s LLC shall perform all services and furnish all supplie s, material and/or equipment as necessary for the engineered design and off-site fabrication of the Artwork. The Artist shall oversee installation of the fully fabricated Artwork at the Site. Services sha ll be performed in a professional manner and in compliance with a ll terms and conditions of this Agreement. 1.2.1.2 Artistic Elements. The Artist shall determine the artistic expression, design, dimensions and materials of the Artwork, subject to review and acceptance by the City 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 sh all be reviewed for approval by the applicable City representatives to ensure compliance with these objectives. 1.2.1.3 Final Engineered Design. The Artist’s LLC shall provide the Final Engineered Design for the Artwork in accordance with Section 1.3. The Final Engineered Design shall include a description of all materials and products utilized in the Artw ork and the Required Preservation Plan. Materials supplied by the Artist’s LLC shall include light fixtures and a metal bolt plate template for preparing the footings to secure the Artwork on the Site. 1.2.1.4 Consultations. The Artist will be availa ble within reasonable advance notice for unanticipated meetings or consultation with representatives of the City to ensure appropriate integration and installation of the Artwork. 1.2.1.5 Fabrication. The Artist’s LLC shall complete the fabrication of the Artwork by the scheduled installation date as provided in Section 1.4.3 of this Agreement. 1.2.1.6 Licenses and Permits. The Artist’s LLC shall cooperate with the City in securing any and al l required licenses, permits and similar legal authorizations, at the City’s expe nse, as may be necessary for the installation and maintenance of the Artwork at the Site. 0 1.2.1.7 Transport and Installation. The Artist’s LLC shall be responsible for the transportation and installation of the Artwork, in consultation with the City. 1.2.1.8 Insurance. The Artist’s LLC shall pr ovide required insurance in amounts and limits specified in Article 6 of this Agreement. 1.2.1.9 Subcontractors. The Artist’s LLC shall provide a list of all subcontractors along with a copy of the agreement between the Artist’s LLC and each subcontractor. 1.2.1.10 Required Preservation Plan. The Artist’s LLC shall provide the Required Preservation Plan with a description of all materials and products utilized in the Artwork and the required care and upkeep. 1.2.1.11 Photographic Documentation. The Artist’s LLC shall provide photographic documentation of the Artwork. 1.2.1.12 Compliance with Applicable Law. The Artist’s LLC shall be responsible for complying with all applicable laws and regulations, including but not limited to zoning and environmental regulations, in response to the City’s advice and explanation to the Artist of any limitations imposed by such laws and/or regulations. 1.2.2 Obligations of the City. 1.2.2.1 Agreement. The City shall perform all obligations in compliance with all terms and conditions of this Agreement. 1.2.2.2 Information. The City shall be responsib le for providing Artist, at no expense to the Artist, copies of existing designs, drawings, reports, list of required permits, and other existi ng relevant data, if any, which is needed by Artist in order to perform. 1.2.2.3 Compliance and Legal Limitations. The City shall be responsible for reviewing compliance with all applicable laws and regulations, including but not limited to zoning or environmental regulations, and shall inform the Artist of any limitations to the Artwork imposed by zoning and environmental laws and other applicable regulations. 1.2.2.4 Site Preparation and Installation Support. The City shall prepare the Site in accordance with the speci fications detailed in the Approved Engineered Design. The City will be responsibl e for providing traffic mitigation during installation, concrete foundations to accommodate the Artwork, electrical conduit and wiring to the Artwork and a crane to assist with installation. / 1.2.2.5 Credit to Artist. The City 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]. 1.2.2.6 Artist’s Reputation. The City shall not permit any use of the Artist’s name or misuse of the Artwork wh ich 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 City’s control. 1.2.2.7 Review Process. The City shall be respons ible for leading the Artist through the required review process. The Community Art and Design Coordinator 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 and Engineering Review. 1.3.1 Final Artistic Design. Artist’s LLC will submit the Final Artistic Design for aesthetic review and approval and preliminary Site review by the City, as follows: 1.3.1.1 The City acknowledges that the Artist has visited, examined, and considered the Site and surrounding area to determine the Final Artistic Design. 1.3.1.2 Within 45 days of the Execution Date, the Artist shall submit the Final Artistic Design to the Community Art and Design Coordinator in the form of detailed drawings or other documents as are required to present a meaningful representation of th e Artwork, both in hard copy and electronic format. 1.3.1.3 The Final Artistic Design will incl ude: the project name, a description of the method by which the Artwork is to be fabricated and installed; a description of any operational, maintenance and conservation requirements for the Artwork; a description of the placement of the Artwork at the Site and any site pr eparations that may be required by the City including, but not limited to, any changes or modifications to any utility system or structure of the Site as necessary. 1.3.1.4 The Final Artistic Design must provi de sufficient detail to demonstrate compliance with applicable local, state or federal laws, ordinances and regulations. 1.3.2 City Review of Fi nal Artistic Design. Upon timely receipt of the Final Artistic Design, the City will promptly and reasonably provide (a) aesthetic review through . the Arts and Humanities Department and the CAD and (b) preliminary Site review by the applicable City representatives. The City shall within 15 days notify Artist’s LLC of any concerns to be addressed with the Final Artistic Design as are necessary for the Artwork to comply with the intent of the Ar tist’s Design Concept and to ensure the physical integrity of the Artw ork and its installation at the Site. The Artist’s LLC shall within 15 days subm it any necessary revisions to the Final Artistic Design. The Artist, the Artist’s LLC, and the City shall then cooperatively and expeditiously work to resolve of any necessary matters leading toward the City’s written approval of the Approved Artistic Design. 1.3.3 Final Engineered Design. The Artist’s LLC shall submit the Approved Artistic Design to the Artist’s Engineer for certification that the Artwork as installed on the Site will be of adequate structural integrity (including foundation loads, wind loads, and potential live loads).The Artist’s LLC shall subm it to the City the Final Engineered Design, including the Arti st’s Engineer’s signed and stamped certification to the City, along with signed and stamped engineering drawings of the Artwork, detailed specifications for construction of the concrete pad at the Site, and detailed instructions for installation of the Artwork at the Site, all both in hard copy and electronic format. 1.3.4 City Review of Final Engineered Design. Upon timely re ceipt of the Final Engineered Design, the City will promp tly and reasonably provide review and comment by the applicable Ci ty representatives. The C ity shall within 15 days notify Artist’s LLC of any concerns to be addressed with the Final Engineered Design as are necessary ensure the phy sical integrity of the Artwork and its installation at the Site. The Artist’s LLC shall within 15 days submit any necessary revisions to the Proposed Engineered Design. The Artist, the Artist’s LLC, the Artist’s Engineer and the City shall then cooperatively and expeditiously work to resolve of any necessary matters leading toward the City’s written approval of the Approved Engineered Design. 1.3.5 Design Documentation and City’s Re served Right to Complete Artwork. As a condition precedent to both commencement of fabrication of the Artwork and to payment by the City to the Artist’s LLC for the cost of fabrication of the Artwork, the Artist’s LLC shall, imme diately following receipt of written approval of the Approved Engineered Design from the City, provide the City with all drawings and documents associated with the Approved Engineered Design, both in hard copy and electronic format. If for any reason th e Artwork is not completed, fabricated, executed, delivered, and installed pursuant to this Agreement, the City shall retain the right to utilize the Approved Engineered Design for the purpose of having the Artwork completed, fabricated, executed, delivered, and installed by others without compromising the artistic integrity of the Artwork. However, the Artist’s LLC shall retain the copyright in the Artwork and all rights under Article 7 and Article 8. - 1.4 Budget, Payment Schedule, Construction Schedule and Progress Reports Budget 1.4.1 Budget and Fixed Project Fee. The approved budget fo r the servic es to be provided by the Artist’s LLC in the design, engineering, fabrication, delivery, and installation of the Artwork is $230,000. The City shall pay the Artist’s LLC a fixed fee of $230,000 (the “Fee”), which shall constitute full and complete compensation for all the services performed, materials furnished, and expenses incurred by the Artist’s LLC under this Agreement. Neither deviations from the approved budget for the approved scope of services to be provided pursuant to this Agreement nor payments in excess of the Fee shall be permitted without a written change order pre-approved by the City’s governing body. 1.4.2 Payment Schedule. Payment of the Fee of $230,000 shall be made according to the following scheduled installments, each installment representing full and final payment for all services and materials provided prior to payment thereof: $15,125 1.4.2.1 - The parties acknowledge that the City has made a partial payment of the Fee to the Artist’s LLC for preliminary design work in the sum of $15,125. $7,875 1.4.2.2 – Upon execution of this Agreement, the Artist’s LLC shall be paid $7,875 of the Fee for co mpletion of the Final Artistic Design. $11,500 1.4.2.3 – Upon the City’s written approval of the Approved Artistic Design pursuant to Section 1.3.2, the Artist’s LLC shall be paid $11,500 of the Fee for comple tion of the Final Engineered Design. $55,000 1.4.2.4 – Prior to commencement of fabrication and upon the preconditions of: (a) the City’s written approval of the Approved Engineered Design pursuant to Section 1.3.4; (b) the City’s receipt from the Artist’s LLC of all draw ings and documents associated with the Approved Engineered Design pursuant to Section 1.3.5; and (c) the City’s receipt of a written lien waiver from Artist’s Engineer; the Artist’s LLC shall be paid $55,000 of the Fee for fabrication and fabrication oversight. $55,000 1.4.2.5 – Sixty (60) days after the City receives written notice of commencement of fabrication of the Artwork and upon the preconditions of (a) receipt by th e City of docum ented proof of progress deemed sufficient by the City toward fabrication of the Artwork in conformity with the Approved Engineered Design; and (b) receipt by the City of an affidavit by the Artist on behalf of the Artist’s LLC that previous payments received from the City have , been applied on account to discharge the obligations of the Artist’s LLC for materials supplied or work performed in the fabrication of the Artwork; the Artist’s LLC shall be paid an additional $55,000 of the Fee for fabrication and fabrication oversight. $55,000 1.4.2.6 – Prior to shipping the Artwork and upon the preconditions of: (a) documented completion of fabrication of the Artwork, (b) written final approval of Artwork by City pursuant to Section 1.8, and (c) receipt by the City of an affidavit by the Artist on behalf of the Artist’s LLC that previous payments received from the City have been applied on account to discharge the obligations of the Artist’s LLC for materials supplied or work performed in the fabrication of the Artwork; the Artist’s LLC shall be paid $55,000 of the Fee. $30,500 1.4.2.7 – Following installation of the Artwork and upon the preconditions of: (a) written accep tance of the Artwork by City pursuant to Section 1.8; and receipt by the City of written lien waivers from all persons providing materials or labor in the completion, delivery and installati on of the Artwork other than those covered under the statutory payment bond provided by the Fabricator pursuant to Section 6.1; the Artist’s LLC shall be paid the $30,500 balance of the Fee. 1.4.3 Completion Schedule. Artist’s LLC will submit the Final Artistic Design to the Arts and Humanities Department via the Community Art and Design Coordinator within 45 days of the Execution Date. Within 45 days after the City provides the Artist’s LLC written notice of approval of the Approved Artistic Design, Artist’s LLC Artist’s LLC will submit in the same manner the Final Engineered Design. Upon fulfillment of the condition precedent set forth in Section 1.3.5 by Artist’s LLC and upon payment by the City pursuant to Section 11.4.2(d), fabrication will promptly commence and be completed with in six months. Installation shall be completed by April 30, 2012. This schedule may be amended by written agreement of both parties. 1.4.4 Progress Reports. Artist’s LLC shall provide such documentation as the City may reasonably require in order to verify compliance by the Artist’s LLC with the conditions of payment under the Payment Schedule and the Completion Schedule. 1.5 Fabrication Stage. 1.5.1 Oversight. The Artist’s LLC shall oversee fabrication of the Artwork under a subcontract with the Fabricator in c onformity with the Approved Engineered Design and in accordance with the agreed upon schedule. 1.5.2 City Review During Fabrication. The City shall have the right to review the Artwork during the fabrication process at reasonable times and upon reasonable + notice, or to require that the Artist’s LLC provide photographic documentation of the status of the Artwork at any stage of the fabrication process. 1.5.3 Cure of Deficiencies. If the City,upon review of the Artwork, determines that the Artwork does not conform to the Approved Engineered Design, the reserves the right to notify the Artist’s LLC in writing of the and that the City intends to withhold the next installment payment until the deficiencies are corrected. The Artist will promptly cure the City’s objections and will notify the City in writing of completion of the cure. The City shall promptly review the Artwork inform the Artist’s LLC of whether the cure is acceptable to the City. 1.5.4 Disputed Deficiencies. If the Artist’s LLC disputes the City’s determination that the Artwork does not conform to the Approved Engineered Design, the Artist’s LLC shall promptly submit reasons in writing to the City within seven (7) days of the City’s prior no tification to the contrary. The 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 shall remain with the City. 1.5.5 Notification of Fabrication Completion. The Artist’s LLC shall notify the Community Art and Design Coordinator im mediately that fabrication of the Artwork has been completed and that the Artwork is ready for delivery and installation at the Site. 1.5.6 Inspection Prior to Delivery for Installation. The City shall inspect the Artwork, either by personal representative or by photographs provided by the Artist’s LLC, within ten (10) days of receiving notification that the Artwork has been completed pursuant to Section 1.5.5, prior to delivery for installation, to determine that the Artwork conforms with the Approved Engineered Design and to give final approval of the Artwork. The City shall not unreasonably withhold final approval of the fabricated Artwork. In the event that the City does withhold final approval, the City shall submit the reasons for such disapproval in writing within ten (10) days of examining the fabricated Artwork. The Artist’s LLC shall then have thirty (30) days from the date of the City’s notice of the disapproval to make the necessary adju stments to the fabricated Artwork in accordance with such writing. The Artist’s LLC shall not be penalized for any delay in the delivery and installation of the Artwork to the Site unless the Artist’s LLC has and substantially deviated from the Final Engineered Design without the prior approval of the City The Artist’s LLC shall then be held responsible for any expenses incurred in correcting such deviation. 1.5.7 Notification of Delays by City. The Community Art and Design Coordinator will promptly notify the Artist’s LLC of any delays or conditions impacting installation of the Artwork. Any additiona l storage fees incurred as a result of such delays are the responsibility of the City. 1.5.8 Site Inspection by Artist’s LLC. The Artist’s LLC shall be required to inspect the Site prior to the transportation and installation of the Artwork and shall notify the 34 City of any adverse Site conditions that will impact the installation of the Artwork which are in need of correction. 1.6 Changes to Design. (Not applicable.) 1.7 Installation. 1.7.1 Upon the City’s approval of the fabricated Artwork, as being in conformity with the final Design, the Artist’s LLC shall deliver and install the completed Artwork to the Site in accordance with the sc hedule provided for in Section 1.4.3. Transportation fees shall be paid by the Artist’s LLC. 1.7.2 The Artist’s LLC will coordinate with the City to ascertain that the Site is prepared to receive the Artwork. The Artist’s LLC must notify the City of any adverse conditions at the Site that would or impede the installation of the Artwork. The Artist’s LLC is responsible for timely installation of the Artwork. The City is responsible for providing a crane of sufficient size to be utilized in the installation of the Artwork. The Artist’s LLC will confer and coordinate with the City to ensure timely coordination with the City’s crane contractor and all other City personnel involved in the installation. The Artist’s LLC may not install the Artwork until authorized to do so by the City. 1.7.3 The Artist’s LLC shall be represented by the Artist at the installation of the Artwork. 1.7.4 Within fifteen (15) days after instal lation of the Artwork, the Artist’s LLC shall furnish the City with the following photographs of the Artwork as installed: A set of three digital, 300 dpi, JPG files, of the Artwork, provided to the City 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’s LLC shall also furnish the City with full written narrative description of the Artwork. 1.7.5 Within fifteen (15) days of completi on of the installation of the Artwork, the Artist’s LLC shall provide the City with written instructions for the appropriate maintenance and preservation of the Artwork along with product data sheets for any material or finish used. The Artwork must be durable, taking into consideration that the Site is an unsecured pub lic space that may be exposed to elements such as weather, temperature variation, and considerable movement of people and equipment. Artist must ensure that all maintenance requirements will be reasonable in terms of time and expense. The City is responsible for the proper care and maintenance of the Artwork. 33 1.8 Approval and Acceptance 1.8.1 The Artist’s LLC shall notify the City in writing when all as required of both parties by this prior to this paragraph have been completed in substantial conformity with the Approved Engineered 1.8.2 The City shall promptly notify the Artist of its final acceptance of the Artwork within ten (10) d after the Artist’s LLC’s submitted written notice pursuant to Section 1.8.1 a bove. The date of acceptance shall be the date the City submits written notice to the Artist’s LLC of its final acceptance of the Artwork. The final acceptance shall be understood to mean that the City acknowledges completion of the Artwork in substantial conformity with the Approved Engineered Design, and that the City confirms that all as required of both parties by this prior to this section 1.8 have been completed. Upon final acceptance and final payment, title to the Artwork passes from the Artist’s LLC to the City. 1.8.3 If the City disputes that all the have been performed, the City shall notify the Artist’s LLC in writing of those the Artist’s LLC has failed to perform within ten (10) days after the Artist submitted written notice pursuant to Section 1.8.1 a bove. The Artist shall promptly perform those indicated by the City. 1.8.4 If the Artist’s LLC disputes the City’s determination that not all have been performed, the Artist’s LLC shall submit reasons in writing to the City within ten (10) days of the City’s prior notification to the contrary. The City shall make reasonable efforts to resolve the dispute with the Artist’s LLC in good faith. However, final determination as to whether all have been performed shall remain with the City. 1.8.5 Upon the resolution of any di sputes that arise under this section, the City shall notify the Artist’s LLC of its final acceptance of the Artwork pursuant to Section 1.8.2. 1.8.6 final acceptance of the Artwork, the Arti st, as the representative of the Artist’s LLC, shall be at such time(s) as may be mutually agreed upon by the City and the Artist’s LLC to attend any public meetings and community outreach functions, as well as any ina uguration or presentation ceremonies relating to the dedication of the Artwork. Duri ng such public presentations by the Artist, the Artist shall acknowledge the City’s role in funding the Artwork. The City shall be solely responsible for coordinating public information materials and related to public esentations. 32 Article 2 – Taxes Any state or federal sales, use or excise taxes, or similar charges relating to the services and materials under this Agreement shall be paid by the Artist’s LLC in a timely fashion. The City shall report payments made to the Artist annually to the Internal Revenue Department in a 1099 statement. Article 3 – Term of Agreement 3.1 Term. This Agreement shall be effective on the Execution Date, and, unless terminated earlier pursuant to such provisions of this Agreement, shall extend until final acceptance by the City under Section 1.8, or submission of final payment to the Artist’s LLC by the City, whichever is later. 3.2 Time of Performance– Force Majeure. The City shall gran t to the Artist’s LLC a reasonable extension of time in the even t that conditions beyond the control of the Artist’s LLC render timely performance of the services of the Artist’s LLC impossible or unduly burdensome. 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’s LLC shall bear the risk of loss or damage to the Artwork until the City’s final acceptance of the Artwork. The Artist’s LLC sh all take such measures as are reasonably necessary to protect the Artwork from loss or damage. The City 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 th e City 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’s LLC represents and warrants that: 5.1.1 The Artwork is solely the result of the artistic effort of the Artist, except as otherwise disclosed in writing to the City the Artwork is uni que and original and does not infringe upon any copyright or the rights of any person; 5.1.2 The Artwork (or duplicate thereof) has not been accepted for sale elsewhere;or any element thereof, or any copyright related thereto which may or impair the rights granted pursuant to this Agreement; 5.1.3 The Artwork is free and clear of any liens from any source whatsoever; 31 5.1.4 All Artwork created or performed by th e Artist on behalf of the Artist’s LLC under this whether created by the Artist alone or in collaboration with others, shall be wholly original with the Artist and shall not infringe upon or violate the rights of any third par; 5.1.5 The Artist’s LLC has the full power to enter into and perform this and to make the grant of rights contained in this Agreement; 5.1.6 All performed hereunder shall be perf ormed in accordance with all applicable laws, regulations, ordinances, etc. and with all necessary care, skill, and diligence; and 5.1.7 These representations and warranties shall survive the termination or other extinction of this Agreement. 5.2 Warranties of Quality and Condition 5.2.1 Standards. The Artist’s LLC represents and warrants that all work will be performed in accordance with professional standards and free from or inferior materials and work manship (including any defects consisting of “inherent or qualities that cause or accelerate deterioration of the Artwork) for one year after the date of final acceptance by the Cit under Section1.8. 5.2.2 Health and Safety. The Artist’s LLC represents and warrants that the Artwork and the materials used are not cur ently known to be harmful to public health and safety. 5.2.3 Reasonable Maintenance Standards. The Artist’s LLC represents and warrants that reasonable maintenance of the Artwork will not equir procedures substantially in excess of those described in the maintenance and preservation recommendations submitted by the Artist’s LLC pursuant to Section 1.7. 5.2.4 Curable Breach within One Year. If within one year the Cit observes any breach of warranty described in this Section 5.2 that is curable by the Artist’s LLC, the Artist’s LLC shall, at the request of the City cure the breach omptl, and consistent with professional conservation standards, at no expense to the City. The City shall give notice to the Artist’s LLC of such breach with reasonable omptness. 5.2.5 Curable Breach after One Year. If after one year the City observes any breach of warranty described in this Section 5.2 th at is curable by the Artist’s LLC, the Cit shall contact the Artist’s LLC to make or supervise repairs or restorations at a reasonable fee during the tist’The Artist shall have the right of first 30 refusal to make or supervise repairs or restorations. Should the Artist be unavailable or unwilling to accept reasonable compensation under the industry standard, the City may seek the of a qualified restorative conservator and maintenance expert. 5.2.6 Breach within One Year Incurable by Artist. If within one year the observes a breach of warranty described in this Section 5.2 that is not curable by the Artist’s LLC, the Artist’s LLC shall be responsible for reimbursing the City for and loss incurred by the Cit as a result of the breach. However, if the Artist disclosed the risk of this breach in the Artist’s Concept and the accepted that it may occur, it shall not be deemed a breach for purposes of this Section 5.2 of this Agreement. 5.2.7 Standard of Display. Artist’s LLC represents and warrants that: 5.2.7.1 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. 5.2.7.2 exposure to the elements and general wear and tear will cause the Artwork to experience on ly minor repairable damages and will not cause the Artwork to fall below an acceptable standard of public display. 5.2.7.3 With general routine cleaning and repair, and within the context of exposur to the elements and general wear and tear, the Artwork will not experience irreparable fracturing, staining, chipping, tearing, abrading and peeling. 5.2.7.4 To the extent the Artwork incorporates products covered by a manufacturer warranty, the Artist’s LLC shall provide copies of such warranties to the City. 5.2.8 Warranty Conditions.The foregoing warranties are conditional, and shall be voided by the failure of the Cit to maintain the Artwork in accordance with the and the applicable conservation standards. If the City to maintain the Artwork in good condition, the Artist’s LLC, in addition to other rights or remedies the Artist’s LLC may have in equity or at law, shall have the right to disown the Artwork as the creation and request that all credits be removed from the Artwork and reproductions thereof until the condition is epaired. 3/ Article 6 – Bonds, Lien Waivers, Insurance, and Indemnity 6.1 Performance and Statutory Payment Bonds. The parties acknowledge that Artist’s LLC is unable to furnish performance or statutory payment bonds. In lieu thereof, the Artist’s LLC shall furnish performance and statutory payment bonds, each in an amount at least e qual to the fabrication subcontract price, as security for the faithful performance and payment of all of Fabricator’s obligations under the fabrication subcontract between the Artist’s LLC and the Fabricator. These bonds shall remain in effect until one y ear after the date when final payment becomes due or until completion of the correction period specified in Section 5.2. The performance bond shall be in substantially the form attached as Exhibit C and the statutory payment bond shall be in subs tantially the form a ttached as Exhibit D. All bonds shall be obtained from a su rety company duly authorized to issue bonds in the amounts required in the state of Kansas. The performance bond shall name the City as obligee. The statutory payment bond shall be issued and filed in conformity with K.S.A. 60-1111. The City shall reimburse th e Artist’s LLC for the actual cost of the bonds. 6 .2 Lien Waivers. The Artist’s LLC shall be requi red, as a condition of payment in accordance with Section 1.4.2, to provide lien waivers from all persons providing materials or labor in the completion, delivery and installation of the Artwork other than those covered under the statutory payment bond provided by the Fabricator pursuant to Section 6.1. 6.3 Insurance. The Artist’s LLC acknowledges that until final acceptance of the Artwork by the City under Section 1.8, any injury to property or persons caused by the Artwork or any damage to, theft of, vandalism to, or acts of God the Artwork are the sole responsibility of the Artist’s LLC, including, but not limited to, any loss occurring during th e creation, storage, transportation or delivery of the Artwork, regardless of where such loss occurs. Terms for the procurement and duration of insurance and required insurance policies are described in Exhibit E. 6.4 Indemnity. Artist’s LLC shall indemnify, protect, defend and hold harmless the City and its employees and agents (each a from and against all obligations, losses, damages, judgments, costs or expenses (including legal fees and costs of investigation) arising from, in connection with or caused by: (a) any personal injury or property damage caused, directly or indirectly, by any act or omission of the Artist’s LLC, any subcontractor, any supplier, or any indi vidual or entity directly or indirectly employed by any of them to perform any work relating to the Artwork; or (b) any infringement of patent, copyright, tradem ark, trade secret or other proprietary right caused by Artist’s LLC or the Artist. Notwithstanding the Artist’s LLC shall have no obligation under this Sect ion with respect to any Loss that is caused solely by the active negligence or willful misconduct of the Covered Party and is not contributed to by any act or omission (including any failure to perform 3. any duty imposed by law) by Artist’s LLC or its officers, employees and agents. Artist’s LLC acknowledges and agrees that its obligation to defend in this Section: (i) is an immediate obligati on, independent of its other obligations hereunder; (ii) applies to any Lo ss which actually or potentially within the scope of this Section, regardless of whether the applicable allegations are or may be groundless, false or fraudulent; and (iii) arises at and continues after the time the Loss is tendered to Artist’s LLC. Article 7 – Ownership and Intellectual Property Rights 7.1 Title. Title to the Artwork shall pass to the City upon the City’s written final acceptance and payment for the Artwork. Artist shall provide City with a Bill of Sale in the form attached as Exhibit F. . 7.2 Ownership of Documents One set of presentation materials prepared and submitted under this Agreement shall be retained by the City for possible exhibition and to hold for permanent safekeeping. 7.3 Copyright Ownership. The Artist retains all right s under the Copyright Act of 1976 as the sole author of the Artwork for the duration of the copyright. 7.4 Reproduction Rights. In view of the intention that the final Artwork shall be unique, the Artist shall not make any additiona l exact duplicate (three)-dimensional reproductions of the final Artwork, nor shall the Artist grant permission to others to do so except with the writte n permission of the City. However, nothing shall prevent the artist from creating future Artworks in the Artist’s manner and style of artistic expression. 7.4.1 Two-dimensional Reproductions. The Artist grants to the City and its assigns an irrevocable license to make two-dimensional reproductions of the Artwork for non-commercial purposes, including, but not limited to reproductions used in brochures, media publicity, and exhibition catalogues or other similar publications provided that these rights are exercised in a tasteful and professional manner. 7.4.2 Credit to Artist. All reproductions by the City shall contain a credit to the Artist and a copyright notice in substantially the following form: Copyright © (Artist’s name, date of publication). 7.4.3 City Acknowledgement. The Artist shall use the Artist’s best efforts in any public showing or resume use of reproductions to give acknowledgment to the City in substantia lly the following form: “an original Artwork commissioned by and in the public art collection of the City of Salina, Kansas.” 3- 7.4.4 Copyright Registration. The Artist shall, at the Artist’s expense, cause to be registered with the United States Register of Copyrights, a copyright in the Artwork in the Artist’s name. 7.4.5 Reproductions by City. If the City wishes to make reproductions of the Artwork for commercial purposes, including but not limited to, tee shirts, post cards and posters, the Parties sh all execute a separate agreement to address the terms of the license granted by the Artist and the royalty the artist shall receive. 7.4.6 Third Party Infringement. The City is not responsible for any third party infringement of Artist’s copyright a nd not responsible for protecting the intellectual property rights of Artist. Article 8 – Artist’s Rights 8.1 General. 8.1.1 The Artist retains all rights under st ate and federal laws including Sec. 106A of the Copyright Act of 1976. 8.1.2 The City agrees that it will not intentionally alter, modify, change, or destroy Artwork without first obtaining permission from the Artist. 8.1.3 If any alteration or damage to the Artwork occurs, the Artist shall have the right to disclaim authorship of the Artwork in addition to any remedies the Artist may have in law or equity under this Agre ement. Upon written request, the City shall remove the identification plaque and all other attributive references to the Artist at its own expense within thirty (30) days of receipt of the notice. No provision of this Agreement shall obligate the City to alter or remove any such attributive reference printed or published prior to the City’s receipt of such notice. The Artist may take such other action as the Artist may choose in order to disavow the Artwork. 8.2.Alterations of Site or Removal of Artwork. 8.2.1 The City shall notify the Artist of an y proposed significant alteration of the Site that would affect the intended character and appearance of the Artwork. The City shall make a good faith effort to consult with the Artist’s LLC in the planning and execution of any such alteration. The City shall make a reasonable effort to maintain the integrity of the Artwork. 8.2.2 The City agrees not to arbitrarily remove or relocate the Artwork without first making a good faith e ffort to contact the Artist.The Artist shall not unreasonably withhold approval of removal or relocation of the Artwork. Should the Artist agree to such removal or relocation, the Artist shall provide 3, the City with written handling instructions. In the event that the Artist is deceased or unable to otherwise give the Artist’s consent, the current owner of the copyright of the Artwork shall not unreasonably withhold permission, keeping in mind the intentions of the Artist at the time of commission and fabrication. Article 9 – Permanent Record The City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Artwork. Article 10 – Artist’s LLC as Independent Contractor 10.1 Independent Contractor. The Artist’s LLC agrees to perform all Artwork under this Agreement as an independent contractor and not as an agent or employee of the City. No partnership or joint venture, nor any principal-agent or employer- employee relationship between the parties or any of their officers, employees, agents or contractors is intended to be created by this Agreement. The Artist’s LLC acknowledges and agrees that the Artist’s LLC shall not hold itself out as an authorized agent of the City with the power to bind in any manner. 10.2 Tax ID No. The Artist’s LLC shall provide the City with its Tax Identification Number and any proof of such number as requested by the City. 10.3 No Delegation of Authority. Artist’s LLC does not have, and will not attempt to assert, the authority to make commitments for or to bind the City to any obligation other than the obligations set forth in this Agreement or in any subsequent written agreement that is signed by both parties. Article 11 – Nondiscrimination The Artist’s LLC 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 required of the Artist through Artist’s LLC are personal and shall not be assigned, sublet or transferred. Any attempt by the Artist’s LLC to assign this or any rights, duties or obligations aris ing hereunder shall be void and of no unless prior written consent is given by the Cit 3+ Article 13 – Termination 13.1 Impossibility or Impracticability. Either party may terminate this without recourse by the other where pe rformance is rendered impossible or impracticable for reasons beyond such p reasonable control such as, but not limited to, acts of nature; war or war like operations; superior governmental regulation or control, public emergency or stri ke or other labor disturbance. Notice of termination of this shall be given to the non-terminating party in writing not less th an ten (10) days prior to the date of termination. 13.2 Unilateral Termination by City. The Cit may terminate this without cause effective immediately upon written notice to the Artist’s LLC. The Cit shall pay the Artist’s LLC for performed and commitments made prior to the date of termination, consistent with the schedule of payments set forth in Section 1.4.2 of this 13.3 Default by Either Party. If either Party to this agreement shall or fail to in a timely and oper manner, or otherwise violate any of the covenants, agreements or stipulations material to this the other Party shall thereupon have th e right to terminate this by giving written notice to the defaulting Party of its intent to terminate the grounds for termination. The defaulting Party shall have thirty (30) days after the date of the notice to cure the default. If it is not cured by that time, the non-defaulting party shall have the option to terminate this . 13.4 Default by Artist’s LLC. If the Artist’ LLC defaults [for cause other than death or incapacity], the Artist’s LLC shall return to the City all funds provided by the Cit in excess of expenses already incurred. The Artist’s LLC shall provide an The City shall retain the right to have the Artwork completed, accounting. fabricated, executed, delivered and installed.However, the Artist’s LLC shall retain the copyright in the Artwork and all rights under 7 and 8. 13.5 Default by City. If the Cit defaults, the Cit shall promptly compensate the Artist’s LLC for all the Artist’s LLC prior to termination. The Cit shall pay the Artist for performed and commitments made prior to the date of termination, consistent w ith the schedule of payments set forth in Section 1.4.2. 13.6 Cessation of Services. Upon notice of terminati on, the Artist’s LLC and its subcontractors shall cease all affected. Article 14 – Death or Incapacity If the Artist’s LLC becomes unable to complete this due to death or incapacity of the Artist, such death or incapacity will not be deemed a breach of this or a default on 24 the part of the Artist’s LLC for the purpose of 13. However, nothing in this shall obligate the City to accept the Artwork. In the event of death or incapacity of the Artist, the Artist’s LLC shall either perform the remain ing work under this Agreement or assign its obligations and under this Agreement to another artist; provided, however, that the City, in the City’s sole discretion, approves of the approach toward completion of the work proposed by the Artist’s LLC.the Cit may elect to terminate this The Artist shall retain all rights under 7 and 8. The Artwork and any reproductions thereof shall contain a credit to the Artist and a copyright notice in substantially the form: Copyright © name, date of publication]. 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 address as may be noticed by a party: For the City: Salina Arts & Humanities Department Karla Prickett 211 W. Iron Salina, KS 67401 For the Artist: Barbara Grygutis Sculpture, LLC PO Box 3028 Tucson, AZ 85702-3028 Article 16 – Waiver The parties agree that a waiver of any breach or 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 City shall maintain records of all documents, notices, checks, and other records required or produced under this or related thereto. The Artist’s LLC agrees to the maintenance of such records for archival purposes. The City will comply with any open records law applicable to these ecords. Article 18 – Conflict of Interest The Artist’s LLC and the City shall avoid all conflicts of interest or appearance of conflicts of interest in the performance of this Agreement. 23 Article 19 – Arbitration/Mediation The parties to this Agreement shall not be subject to arbitration. The parties agree that as a condition precedent to the filing of any court action concerning any legal disputes between them, the parties shall first attempt to mediate such dispute utilizing a neutral mediator jointly selected by the parties with the presence and participation of both parties. Article 20 – 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 21 – 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 mediation procedure to be in conflict with the laws, rules, and/or regulations of the United States or the State of Kansas, invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this or the application thereof to any person or circumstance, shall remain in full force and 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 are capable of execution. Article 22 – Choice of Law, Jurisdiction and Venue This Agreement shall be governed by the laws of the state of Kansas both as to interpretation and performance. The parties agree an d consent that jurisdiction a nd venue of any legal disputes between them shall lie solely in the District Court of Saline County, Kansas. Article 23 – Entire Agreement This Agreement, including exhibits, comprises a ll of the covenants, promises, agreements, and conditions between the 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. CITY OF SALINA, KANSAS By: _______________________ Aaron G. Peck, Mayor Date: March __, 2011 22 ATTEST: By: ___________________________ Lieu Ann Elsey, CMC, City Clerk Approved as to Form: By: ___________________________ Greg A. Bengtson, Legal Counsel to the City of Salina BARBARA GRYGUTIS SCULPTURE, LLC By: ________________________ Barbara Grygutis, Manager Date: March __, 2011 ______________________________ Barbara Grygutis, individually Date: March __, 2011 21 EXHIBIT A ARTIST’S DESIGN CONCEPT 20 EXHIBIT B SITE DEPICTION 2/ EXHIBIT C FABRICATOR’S PERFORMANCE BOND 2. EXHIBIT D FABRICATOR’S STATUTORY PAYMENT BOND 2- EXHIBIT E REQUIRED INSURANCE for ARTIST’S LLC Commercial General Liability (CGL) CGL coverage shall be written on ISO Occurrence fo rm CG00 01 or an industr y equivalent. Coverage shall cover Personal Injury, Bodily Injury, Prope rty Damage, Premises and Operations, Products and Completed Operations, Contractual Liability, Independent Contractors and Personal and Advertising Injury. Minimum per occurrence limit of $1,000,000 Minimum annual aggregate limit of $2,000,000 Minimum Fire Legal Liability limit of $100,000 Personal and Advertising Liability limit of $1,000,000 The City, including its officials, agents, servants, officers, directors and employees shall be named as an Additional Insured under the Artist’s LLC Commercial General Liability insurance policy. The insurance for the Additional Insured shall include Products/Completed Operations and be as broad as the insurance for the named insured Artist’s LLC. It shall apply as primary and non-contributory insurance before any other in surance or self-insurance, including any deductible, maintained by, or provided to, th e Additional Insured and shall include defense expense. Where allowed by law, Waiver of Subrogation in favor of the City to be included, and evidenced by copy of the endorsement to th e Artist’s Commercial General Liability insurance policy Commercial Automobile Liability (CAL) The CAL coverage shall be written on ISO form CA 00 01 or an industr y equivalent. In the event the Artist’s LLC automobiles haul hazardous materials, coverage must be amended to include Pollution Liability-Broadened Coverage Form CA 9948 or an industry equivalent. Coverage shall be applicable to all autos and other vehicles subject to compulsory auto liability laws, owned, hired, rented or used by the Artist’s LLC and include automobiles not owned by but used on behalf of the Artist’s LLC. Combined single limit of $1,000,000 The City shall be named as an Additional Insured under the Artist’s LLC Commercial Automobile Liability insurance policy. Insurance Company Ratings All policies will be underwritten by insurance comp anies acceptable to the City and licensed to do A.M. Best Rating of A- business in the state of Kansas. The insurance company must have a minimum (“A” minus)Financial Size Category VII and a of a or better. Certificate(s) of Insurance At the time of contract execution between the City and the Artist’s LLC, the Artist’s LLC must provide the City, Certificate(s) of Insurance on the ACORD Form 25, evidencing coverage in compliance with the City’s insurance requirements. 2, The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the co verage required by the specifications mentioned above. The certificate must include notification to the City of no less than 30 days advance written notice of policy cancellation and 10 days written notice of cancellation due to non-payment of premium by registered mail to the stated address of the Certificate Holder/City. Certificates can be emailed to: lieuann.elsey@salina.org OR Faxed to: 785-309-5738 OR Mailed to: City of Salina c/o City Clerk P.O. Box 736 Salina, KS 67402-0736 Duration of Insurance Coverage The coverage provided during the project shall not be altered or modified without approval from the City. The Artist’s LLC may elect to change insura nce carriers, but any replacement must provide equal coverage and a minimum fina ncial rating as outlined above. Notice of Claim The Artist’s LLC, upon receipt of notice of any clai m in excess of $1,000 in connection with this contract shall promptly notify the City’s Risk Mana gement Department, (785) 309-5705, providing full details thereof, including an estimate of the amount of loss or liability. 2+ EXHIBIT F BILL OF SALE FOR VALUABLE CONSIDERATION , the receipt of which is hereby acknowledged, the Barbara Grygutis Sculpture, LLC, does hereby sell, transfer and convey to the City of Salina, Kansas, its successors and assigns, all right, title and interest in the ownership of the Artwork commissioned by nd as described therein. Title: SILVER LINING L. IN WITNESS WHEREOF , the duly authorized offi cer of Barbara Grygutis Sculpture, LLC, has executed this written Bill of Sale on this the ____ day of ___________, 2012. BARBARA GRYGUTIS SCULPTURE, LLC By: ________________________ Barbara Grygutis, Manager STATE OF NEW MEXICO, COUNTY OF __________, ss: This instrument was ackn owledged before me on __________ __, 2012, by Barbara Grygutis as Manager of Barbara Grygutis Sculpture, LLC. My appointment expires: ________________________________ Notary Public 14 ÷ÄÔÓÚÓÈ