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HomeMy WebLinkAboutContractAGREEMENT WITH ARTIST CHRISTY CARAVAGLIO FOR MAPLE VALLEY HIGHWAY FENCE PROJECT THIS AGREEMENT, dated February 12, 2021, is by and between the City of Renton (“CITY”), a Washington municipal corporation, and Christy Caravaglio, a sole proprietor (“ARTIST”). CITY and ARTIST are referred to collectively in this Agreement as the “Parties.” Once fully executed by the Parties, this Agreement is effective as of the last date signed by both parties. 1.Background: CITY and ARTIST mutually wish to enter into this contract for a public art project designed by ARTIST to be located on the fence on Maple Valley Highway at Ron Regis Park. 2.Scope and Time of Performance: ARTIST agrees to create and install artwork as specified in Exhibit “A,” “Scope of Work,” which is attached and incorporated herein. Such artwork is hereinafter referred to as “ARTWORK.” ARTIST agrees to discuss and revise the contents of the artwork with designated CITY representatives until the Parties have agreed on a final design. The final design will be submitted to the CITY’s Municipal Arts Commission for review prior to painting. ARTIST will be responsible for installing the ARTWORK in its approved design on the fence identified in Exhibit A. ARTIST will coordinate with designated CITY representatives to select approved materials prior to design or installation. ARTIST agrees to create and install ARTWORK no later than June 30, 2021. 3.Changes in Scope of Work: The CITY, without invalidating this Agreement, may order changes to the ARTWORK consisting of additions, deletions or modifications. Any such changes to the ARTWORK shall be ordered by the CITY in writing and the compensation shall be equitably adjusted consistent with the rates set forth in Exhibit A or as otherwise mutually agreed by the Parties. 4.ARTIST’s Grants and Representations: A.Delivery of ARTWORK to CITY constitutes ARTIST’s certification that (1) ARTWORK is the original work of ARTIST; (2) to the extent others contributed to the ARTWORK, ARTIST assumes all responsibility and liability for any claims of right to the ARTWORK by such others; (3) ARTIST owns all rights to ARTWORK, including having obtained any rights that ARTIST did not originally possess; and (4) if ARTWORK contains recognizable images of particular persons, ARTIST has obtained appropriate releases. CAG-21-042 PAGE 2 OF 10 B.ARTIST acknowledges that the ARTWORK will be displayed on the subject location at the discretion of the CITY as the owner of the subject location. The CITY retains all right to remove, maintain, restore, relocate, or otherwise alter the ARTWORK in the future for any reason. C.ARTIST grants to CITY a non-exclusive license to graphically and electronically reproduce ARTWORK, while on display, for any and all future publicity endeavors conducted by CITY, provided that any such reproduction is credited to ARTIST by name. CITY may use the ARTIST’s photograph, other likeness, or biography in connection with the use of ARTWORK. 5. Compensation: A. Amount. Total compensation to ARTIST for ARTWORK provided pursuant to this Agreement shall not exceed $4,500. Except as specifically provided herein, ARTIST shall be solely responsible for payment of any taxes imposed as a result of the performance and payment of this Agreement. Other than as specified, ARTIST relinquishes the right to any financial proceeds in association with CITY’s use or reproductions of ARTWORK. B.Payment Schedule. Upon completion of ARTWORK, ARTIST shall submit a voucher or invoice in a form specified by CITY. Payment shall be made by CITY and participating community organizations within thirty (30) calendar days after receipt and approval by the appropriate CITY representative of the voucher or invoice. CITY may withhold payment for work that does not meet the requirements of this Agreement. ARTIST will be solely responsible for collecting the Non-CITY Portion. ARTIST acknowledges that this Section 4B prevails over the payment schedule provisions in Exhibit A. C.Method of Payment. For each payment milestone as specified in Section 4B, ARTIST shall submit a voucher or invoice in a form specified by CITY. CITY may withhold payment for work that does not meet the requirements of this Agreement. D.Effect of Payment. Payment for any part of the ARTWORK shall not constitute a waiver by the CITY of any remedies it may have against the ARTIST for failure of the ARTIST to perform the ARTWORK or for any breach of this Agreement by the ARTIST. E.Non-Appropriation of Funds. If sufficient funds are not appropriated or allocated for payment under this Agreement for any future fiscal period, the CITY shall not be obligated to make payments for ARTWORK or amounts incurred after the end of the current fiscal period, and this Agreement will terminate upon the completion of all remaining ARTWORK for which funds are allocated. No penalty or expense shall accrue to the CITY in the event this provision applies. PAGE 3 OF 10 6.Termination: A.The CITY reserves the right to terminate this Agreement at any time, with or without cause by giving ten (10) calendar days’ notice to the ARTIST in writing. In the event of such termination or suspension, all finished or unfinished documents, data, studies, worksheets, models and reports, or other material prepared by the ARTIST pursuant to this Agreement shall be submitted to the CITY, if any are required as part of the ARTWORK. B.In the event this Agreement is terminated by the CITY, the ARTWORK shall be entitled to payment for all hours worked to the effective date of termination, less all payments previously made. If the Agreement is terminated by the CITY after partial performance of ARTWORK for which the agreed compensation is a fixed fee, the CITY shall pay the ARTIST an equitable share of the fixed fee. This provision shall not prevent the CITY from seeking any legal remedies it may have for the violation or nonperformance of any of the provisions of this Agreement and such charges due to the CITY shall be deducted from the final payment due the ARTIST. No payment shall be made by the CITY for any expenses incurred or work done following the effective date of termination unless authorized in advance in writing by the CITY. 7.Warranties And Right To Use Work Product: ARTIST represents and warrants that ARTIST will perform all ARTWORK identified in this Agreement in a professional and workmanlike manner and in accordance with all reasonable and professional standards and laws. Compliance with professional standards includes, as applicable, performing the ARTWORK in compliance with applicable CITY standards or guidelines (e.g. design criteria and Standard Plans for Road, Bridge and Municipal Construction). Professional engineers shall certify engineering plans, specifications, plats, and reports, as applicable, pursuant to RCW 18.43.070. ARTIST further represents and warrants that all final work product created for and delivered to the CITY pursuant to this Agreement shall be the original work of the ARTIST and free from any intellectual property encumbrance which would restrict the CITY from using the work product. ARTIST grants to the CITY a non-exclusive, perpetual right and license to use, reproduce, distribute, adapt, modify, and display all final work product produced pursuant to this Agreement. The CITY’s or other’s adaptation, modification or use of the final work products other than for the purposes of this Agreement shall be without liability to the ARTIST. The provisions of this section shall survive the expiration or termination of this Agreement. 8.Record Maintenance: The ARTIST shall maintain accounts and records, which properly reflect all direct and indirect costs expended and ARTWORK provided in the performance of this Agreement and retain such records for as long as may be required by applicable Washington State records retention laws, but in any event no less than six years after the termination of this Agreement. ARTIST agrees to provide timely and complete access to PAGE 4 OF 10 and copies of any records related to this Agreement as required by CITY to audit expenditures and charges and/or to comply with the Washington State Public Records Act (Chapter 42.56 RCW). The provisions of this section shall survive the expiration or termination of this Agreement. 9.Public Records Compliance: To the full extent the CITY determines necessary to comply with the Washington State Public Records Act, ARTIST shall make a due diligent search of all records in its possession or control relating to this Agreement and the ARTWORK, including, but not limited to, e-mail, correspondence, notes, saved telephone messages, recordings, photos, or drawings and provide them to the CITY for production. In the event ARTIST believes said records need to be protected from disclosure, it may, at ARTIST’s own expense, seek judicial protection. ARTIST shall indemnify, defend, and hold harmless the CITY for all costs, including attorneys’ fees, attendant to any claim or litigation related to a Public Records Act request for which ARTIST has responsive records and for which ARTIST has withheld records or information contained therein, or not provided them to the CITY in a timely manner. ARTIST shall produce for distribution any and all records responsive to the Public Records Act request in a timely manner, unless those records are protected by court order. The provisions of this section shall survive the expiration or termination of this Agreement. 10.Independent Contractor Relationship: A.The ARTIST is retained by the CITY only for the purposes and to the extent set forth in this Agreement. The nature of the relationship between the ARTIST and the CITY during the period of the ARTWORK shall be that of an independent contractor, not employee. The ARTIST, not the CITY, shall have the power to control and direct the details, manner or means of ARTWORK. Specifically, but not by means of limitation, the ARTIST shall have no obligation to work any particular hours or particular schedule, unless otherwise indicated in the Scope of Work or where scheduling of attendance or performance is mutually arranged due to the nature of the ARTWORK. ARTIST shall retain the right to designate the means of performing the ARTWORK covered by this agreement, and the ARTIST shall be entitled to employ other workers at such compensation and such other conditions as it may deem proper, provided, however, that any contract so made by the ARTIST is to be paid by it alone, and that employing such workers, it is acting individually and not as an agent for the CITY. B.The CITY shall not be responsible for withholding or otherwise deducting federal income tax or Social Security or contributing to the State Industrial Insurance Program, or otherwise assuming the duties of an employer with respect to ARTIST or any employee of the ARTIST. C.If the ARTIST is a sole proprietorship or if this Agreement is with an individual, the ARTIST agrees to notify the CITY and complete any required form if the ARTIST retired PAGE 5 OF 10 under a State of Washington retirement system and agrees to indemnify any losses the CITY may sustain through the ARTIST’s failure to do so. 11.Hold Harmless: ARTIST shall defend, indemnify, and hold harmless CITY, its officers, agents, employees, and assigns, from and against any and all damages, claims, suits, and/or actions arising from any copyright or trademark infringement, or any negligent act, negligent activity, or omission, or any breach of this Agreement of or by ARTIST or any employee or agents of ARTIST in and during the performance of this Agreement. The ARTIST agrees to release, indemnify, defend, and hold harmless the CITY, elected officials, employees, officers, representatives, and volunteers from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, taxes, losses, fines, fees, penalties, expenses, attorney’s or attorneys’ fees, costs, and/or litigation expenses to or by any and all persons or entities, arising from, resulting from, or related to the negligent acts, errors or omissions of the ARTIST in its performance of this Agreement or a breach of this Agreement by ARTIST, except for that portion of the claims caused by the CITY’s sole negligence. Should a court of competent jurisdiction determine that this agreement is subject to RCW 4.24.115, (Validity of agreement to indemnify against liability for negligence relative to construction, alteration, improvement, etc., of structure or improvement attached to real estate…) then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the ARTIST and the CITY, its officers, officials, employees and volunteers, ARTIST’s liability shall be only to the extent of ARTIST’s negligence. It is further specifically and expressly understood that the indemnification provided in this Agreement constitute ARTIST’s waiver of immunity under the Industrial Insurance Act, RCW Title 51, solely for the purposes of this indemnification. The Parties have mutually negotiated and agreed to this waiver. The provisions of this section shall survive the expiration or termination of this Agreement. 12.Gifts and Conflicts: The CITY’s Code of Ethics and Washington State law prohibit CITY employees from soliciting, accepting, or receiving any gift, gratuity or favor from any person, firm or corporation involved in a contract or transaction. To ensure compliance with the CITY’s Code of Ethics and state law, the ARTIST shall not give a gift of any kind to CITY employees or officials. ARTIST also confirms that ARTIST does not have a business interest or a close family relationship with any CITY officer or employee who was, is, or will be involved in selecting the ARTIST, negotiating or administering this Agreement, or evaluating the ARTIST’s performance of the ARTWORK. 13.CITY of Renton Business License: The ARTIST shall obtain a CITY of Renton Business License prior to performing any ARTWORK and maintain the business license in good standing throughout the term of this agreement with the CITY. PAGE 6 OF 10 Information regarding acquiring a city business license can be found at: http://www.rentonwa.gov/cms/One.aspx?portalId=7922741&pageId=9824882 Information regarding State business licensing requirements can be found at: http://dor.wa.gov/doing-business/register-my-business 14.[Reserved.] 15.Delays: ARTIST is not responsible for delays caused by factors beyond the ARTIST’s reasonable control. When such delays beyond the ARTIST’s reasonable control occur, the CITY agrees the ARTIST is not responsible for damages, nor shall the ARTIST be deemed to be in default of the Agreement. 16.Notices: Any notice required under this Agreement will be in writing, addressed to the appropriate party at the address which appears below (as modified in writing from time to time by such party), and given personally, by registered or certified mail, return receipt requested, by facsimile or by nationally recognized overnight courier service. Time period for notices shall be deemed to have commenced upon the date of receipt, EXCEPT facsimile delivery will be deemed to have commenced on the first business day following transmission. Email and telephone may be used for purposes of administering the Agreement, but should not be used to give any formal notice required by the Agreement. CITY OF RENTON Jessie Kotarski, Economic Development Specialist 1055 South Grady Way Renton, WA 98057 Phone: (425) 430-7271 jkotarski@rentonwa.gov ARTIST Christina Caravaglio 12533 SE 203rd Pl Kent, WA 98031 Phone: (253) 486-5857 ccpatchwork@gmail.com 17.Discrimination Prohibited: Except to the extent permitted by a bona fide occupational qualification, ARTIST agrees as follows: PAGE 7 OF 10 A. ARTIST, and ARTIST’s agents, employees, representatives, and volunteers with regard to WORK performed or to be performed under this Agreement, shall not discriminate on the basis of race, color, sex, religion, nationality, creed, marital status, sexual orientation or preference, age (except minimum age and retirement provisions), honorably discharged veteran or military status, or the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification in relationship to hiring and employment, in employment or application for employment, the administration of the delivery of ARTWORK or any other benefits under this Agreement, or procurement of materials or supplies. B.The ARTIST will take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, national origin, sex, age, sexual orientation, physical, sensory or mental handicaps, or marital status. Such action shall include, but not be limited to the following employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training. C.If the ARTIST fails to comply with any of this Agreement’s non-discrimination provisions, the CITY shall have the right, at its option, to cancel the Agreement in whole or in part. D.The ARTIST is responsible to be aware of and in compliance with all federal, state and local laws and regulations that may affect the satisfactory completion of the project, which includes but is not limited to fair labor laws, worker's compensation, and Title VI of the Federal Civil Rights Act of 1964, and will comply with City of Renton Council Resolution Number 4085. 18.Miscellaneous: The parties hereby acknowledge: A.The CITY is not responsible to train or provide training for ARTIST. B.ARTIST will not be reimbursed for job related expenses except to the extent specifically agreed within the attached exhibits. C.ARTIST shall furnish all tools and/or materials necessary to perform the ARTWORK except to the extent specifically agreed within the attached exhibits. D.In the event special training, licensing, or certification is required for ARTIST to provide ARTWORK he/she will acquire or maintain such at his/her own expense and, if ARTIST employs, sub-contracts, or otherwise assigns the responsibility to perform the ARTWORK, said employee/sub-contractor/assignee will acquire and or maintain such training, licensing, or certification. PAGE 8 OF 10 E.This is a non-exclusive agreement and ARTIST is free to provide his/her ARTWORK to other entities, so long as there is no interruption or interference with the provision of ARTWORK called for in this Agreement. F. ARTIST is responsible for his/her own insurance, including, but not limited to health insurance. G.ARTIST is responsible for his/her own Worker’s Compensation coverage as well as that for any persons employed by the ARTIST. 19.Other Provisions: A.Sole and Entire Agreement. This Agreement contains the entire agreement of the Parties and any representations or understandings, whether oral or written, not incorporated are excluded. B.Approval Authority. Each individual executing this Agreement on behalf of the CITY and ARTIST represents and warrants that such individuals are duly authorized to execute and deliver this Agreement on behalf of the CITY or ARTIST. C.General Administration and Management. The CITY’s project manager is Jessie Kotarski. In providing ARTWORK, ARTIST shall coordinate with the CITY’s contract manager or his/her designee. D.Amendment and Modification. This Agreement may be amended only by an instrument in writing, duly executed by both Parties. E.Successors and Assigns. Neither CITY nor ARTIST shall assign, transfer or encumber any rights, duties or interests accruing from this Agreement without the written consent of the other. F.Conflicts. In the event of any inconsistencies between ARTIST proposals exhibits and this Agreement, the terms of this Agreement shall prevail. Any exhibits/attachments to this Agreement are incorporated by reference only to the extent of the purpose for which they are referenced within this Agreement. To the extent an ARTIST prepared exhibit conflicts with the terms in the body of this Agreement or contains terms that are extraneous to the purpose for which it is referenced, the terms in the body of this Agreement shall prevail and the extraneous terms shall not be incorporated herein. G.Governing Law. This Agreement shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington and the City of Renton. ARTIST and all of the ARTIST’s employees shall perform the ARTWORK in accordance with all applicable federal, state, county and city laws, codes and PAGE 9 OF 10 ordinance. Joint Drafting Effort. This Agreement shall be considered for all purposes as prepared by the joint efforts of the Parties and shall not be construed against one party or the other as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution. H.Jurisdiction and Venue. Any lawsuit or legal action brought by any party to enforce or interpret this Agreement or any of its terms or covenants shall be brought in the King County Superior Court for the State of Washington at the Maleng Regional Justice Center in Kent, King County, Washington, or its replacement or successor. ARTIST hereby expressly consents to the personal and exclusive jurisdiction and venue of such court even if ARTIST is a foreign corporation not registered with the State of Washington. I.Severability. A court of competent jurisdiction’s determination that any provision or part of this Agreement is illegal or unenforceable shall not cancel or invalidate the remainder of this Agreement, which shall remain in full force and effect. J.Time is of the Essence. Time is of the essence of this Agreement and each and all of its provisions in which performance is a factor. Adherence to completion dates set forth in the description of the ARTWORK is essential to the ARTIST’s performance of this Agreement. K. Third-Party Beneficiaries. Nothing in this Agreement is intended to, nor shall be construed to give any rights or benefits in the Agreement to anyone other than the Parties, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the Parties and no one else. L.Binding Effect. The Parties each bind themselves, their partners, successors, assigns, and legal representatives to the other party to this Agreement, and to the partners, successors, assigns, and legal representatives of such other party with respect to all covenants of the Agreement. M.Waivers. All waivers shall be in writing and signed by the waiving party. Either party’s failure to enforce any provision of this Agreement shall not be a waiver and shall not prevent either the CITY or ARTIST from enforcing that provision or any other provision of this Agreement in the future. Waiver of breach of any provision of this Agreement shall not be deemed to be a waiver of any prior or subsequent breach unless it is expressly waived in writing. N. Counterparts. The Parties may execute this Agreement in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. March 2, 20213/9/2021 Approved by Leslie Clark via 3/1/2021 email EXHIBIT A Artist Bio Christy Caravaglio is a fiber artist living in Kent, WA. Her designs are inspired by traditional and contemporary quilt designs as well as an artistic sense of pattern and color. These are informed by her active practices in quilting and knitting as well as her previous career as a graphic and textile artist. She likes to create little moments of surprise and joy for people’s everyday lives. Project Description: The project plan is to add a fence weaving or “yarn bomb” to the chain link fence that runs along Maple Valley Highway at Ron Regis Park. This installation will add bright color and joyful pattern to the existing urban environment. This stretch of highway does not currently have a lot of public art. This brightly colored and highly visible piece will have a big impact. Colorful geometric designs appear in a variety of world cultures so a piece like this can be appreciated broadly in a diverse community such as we have in South King County. Using brightly colored acrylic yarn, I will weave a geometric design onto the fence. Yarn will be simply and securely tied to the fence leaving no permanent effects on the site. It is suitable outdoors in all weather conditions. Expected duration of installation is 6 months to one year. When the yarn becomes faded, worn, or damaged, the artist will remove it with the consent of arts commission staff. This project can be done any time. The artist and the arts commission can decide on a start date. Installation can take place on weekends over the course of a couple of months. On-site work can be done in winter, but the time between start and finish will be longer to allow for installation on days when it is not raining. It will be fun for people to see the project progress gradually. Promotions and Marketing Plan: This work will be immediately visible to anyone traveling on this frequented stretch of highway. Additionally, I will promote this project on my Instagram and Facebook pages. I expect that over the lifetime of this installation it will be seen by many thousands of people. Work Samples (images of previously completed projects/events) Images of my previous work on similar projects can be seen online at https://www.ccpatchwork.com/public-yarn-art Illustration of proposed design: