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HomeMy WebLinkAbout2009-074 Arts Commission - Cindy Newton Public Arts Project Cedar Grove Park~~ 8-~8'-3~0°~ ~e _~ PUBLIC ART AGREEMENT BETWEEN ARTIST AND ORANGE COUNTY THIS AGREEMENT, made and entered into this the _1_~__ day of ~~ m , 2009, by and between Orange County, hereinafter referred to as "County", through the Orange County Arts Commission, hereinafter referred to as the "Arts Commission"; and Cindy Newton, hereinafter re- ferred to as the "Artist". RECITALS WHEREAS the Arts Commission has launched the Temporary Installations Made for Ele- ments (T.I.M.E) Public Art Project at Cedar Grove Park for the purpose of encouraging more Orange County artists to become public artists through participation in small-budget temporary public art projects; WHEREAS the Arts Commission requires the services of an artist to create a work of art on the fuel oil tank located at the Cedar Grove; and WHEREAS the Arts Commission has determined that Artist is qualified to create the art work desired based upon the skill, reputation and creativity of Artist, and the Artist is willing and able to perform under the terms and conditions of this Agreement; NOW THEREFORE, in consideration of the foregoing promises and the covenants set forth below and other valuable consideration, the parties agree as follows: 1. PRELIMINARY DESIGN. Artist shall present a preliminary design (strike-off or maquette) to the Arts Commission Coordinator and the ad hoc T.I.M.E Project Public Art Selec- tion Committee on or before May 21, 2009 ("date of presentation") for approval, prior to com- mencement of the creation of the art work. The preliminary design will include the art work's dimensions, description of materials used, considerations for longevity and conservation and maintenance requirements. 2. CREATION AND INSTALLATION (a) Artist represents and warrants that the art work to be created will bean origi- nal work of art by Artist and that the art work will be a faithful rendition of the prelimi- nary design submitted by Artist and approved by the Arts Commission. All changes to the art work shall be first approved by the Arts Commission in writing. (b) Artist shall create and be responsible for installation of the art work. Artist agrees to have the art work completely installed, including all touch-up work, by June 30, 2010 ("date of installation") and be present for the dedication ceremony. Upon com- pletion of installation, the Arts Commission shall acknowledge its completion in writing, and will not unreasonably withhold approval. (c) Except as set forth in this Agreement, the costs for installation, including painting tools, laborer wages, workers compensation insurance and any other costs nec- ~' F` essary for installation shall be paid by Artist. (d) If work on the art work is delayed by adverse weather conditions, or any other cause beyond the Artist's reasonable control, then the completion date shall be ex- tended for such reasonable time as the parties may agree. (e) If work on the art work is delayed by any fault, neglect, act or failure of Art- ist, then Artist shall take all reasonable steps to complete the art work within the agreed upon time. In the event that Artist is unable to complete the art work within the agreed upon time, Artist shall be required to pay all costs caused by the delay. (f) If the work on the art work is delayed by any fault, neglect, act or failure of the Arts Commission, then the Arts Commission shall .take all reasonable steps to enable the Artist to complete the art work and shall pay all costs associated therewith including paying for additional scaffolding, laborers, additional insurance costs and any other costs necessary to complete the art work. 3. PROTECTIVE COATINGS. Any protective coating used is the responsibility of the Artist, and not the Arts Commission, and is to be paid out of award funds received by the Artist. 4. PERMITS. The Arts Commission agrees to procure at its own cost all necessary permits including any easements, encroachment permits, signage permits, scaffolding permits, alley closure permits or otherwise. 5. COMPLIANCE WITH ALL LAWS. Artist agrees to comply with all local, state and federal laws and ordinances that pertain to the creation and installation of the art work. 6. SURFACE PREPARATION. The preparation of the surface for the art work is the responsibility of the Artist, and is to be paid out of award funds received by the Artist. 7. AMOUNT OF PAYMENT. The Arts Commission agrees to pay Artist a maximum of $807 in state Grassroots Arts Program money from the Orange County Arts Commission's FY 09 budget and up to $2,000 in county money from the Arts Commission's FY 10 budget. Upon receipt of invoice, which shall be submitted at the end of each phase of the project as set forth below, the Arts Commission shall pay, within 15 days: (a) 50% upon execution of the Agreement; and (b) 50% upon completion of the Mural to the County's satisfaction. 8. INCREASE IN PAYMENT. Any additions or deletions must be approved in ad- vance in writing by the Arts Commission. If any said additions or deletions made to the art work result in an increase in cost, such increased costs shall be agreed to in writing and paid by the Arts Commission to Artist within five (5) days of receipt by the Arts Commission of an invoice. ',k _~ 9. TIMELY PAYMENT. If the Arts Commission fails to make any payment within (10) days of the date it is due, Artist may cease all work until such time as payment is made and the completion date of the project shall be adjusted accordingly. 10. INDEPENDENT CONTRACTOR. The Artist is an independent contractor and not an employee, agent or other representative of the County and/or the Arts Commission. Nothing contained in this Agreement shall be construed to create the relationship of princi- pal and agent, or employer and employee, between Artist and Arts Commission or Orange County Government. Artist shall have the right to select the means, manner and method of performing the services described herein and has complete artistic discretion and control over the execution of the art work. Artist understands and agrees that he/she is not author- ized to incur any expenses or any liability whatsoever on behalf of the County or the Arts Commission and has no authority, expressed or implied, to obligate or make representations on behalf of the County or the Arts Commission. Artist agrees to maintain his or her own worker's compensation insurance for himself/herself and his or her employees for the dura- tion of the art work's installation and provide the Arts Commission with proof thereof. 11. COPYRIGHT. Upon final payment by the Arts Commission to Artist, Artist will assign his or her copyright interests in the art work to the Arts Commission and the Arts Commission will become copyright holder for all purposes, with the following exceptions: (a) Artist retains the right to reproduce the art work for all noncommercial pur- poses such as reproducing the image for Artist's portfolio. (b) The Arts Commission agrees to notify the Artist should the Arts Commission ever desire to use the Artist's work in an individual (i.e., not coupled with the works of other Artists as in a calendar or book) sale that amounts to $300 or more fora sin- gle piece. Artist agrees to cooperate in the development of such a piece (i.e., auto- graph of piece, oversee production art work, participation in public announcements, etc.). In exchange for this cooperation, the Arts Commission will provide Artist with a 50% royalty on the profit from the sale, payable on a quarterly basis. (c) Artist retains usage for purposes that do not compete with the Arts Commis- sion's projects as long as the art work is identified as being a part of the Orange County outdoor mural gallery. Artist agrees to contact the Arts Commission for permission for such noncompeting formats, and the Arts Commission agrees not to withhold permission for any unreasonable purpose. 12. INDEMNIFICATION. The Arts Commission shall defend, indemnify and hold harmless Artist, his or her agents, and contractors from any and all claims, demands, dam- ages, costs, expenses (including attorney's fees), judgments or liabilities arising from the negligence or willful misconduct of the Arts Commission. Artist shall defend, indemnify and hold harmless the Arts Commission, from all claims, demands, damages, costs, ex- penses (including attorney's fees), judgments or liabilities arising from the negligence or willful misconduct of Artist. With respect to any and all claims, demands, damages, costs, expenses (including attorney's fees), judgments or liabilities arising from the joint or concur- ~. ~` rent negligence of Artist and the Arts Commission, each party shall assume responsibility in proportion to the degree of its respective fault as determined by mediation. 13. WORKER'S COMPENSATION (a) Artist or employee or subcontractor of Artist shall not be covered by Worker's Compensation Insurance purchased by the County. The County will not be re- sponsible for damages arising from personal injury to the Artist and his or her agents, as- sistants and contractors, while they are present at the mural site, unless the personal in- jury was caused by the negligence of the County, its employees, or agents. Nothing in this Agreement is intended to serve as a waiver of sovereign or governmental immunity by Orange County. (b) Artist shall also be responsible to take all reasonable precautions for the safety of and provide all reasonable protection to prevent damage, injury, or loss to (i) all employees on the project and other volunteers or persons who may be affected thereby; (ii) all of the work and materials and equipment to be incorporated in the work or the project, whether stored on or off the site, under the care, custody, or control of Artist or any of the subcontractors; (ii) other property at the site or adjacent thereto including trees, shrubs, lawns, walks, pavements, roadways, structures, and utilities. (c) Artist shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the project or work. 14. TERMINATION. Either party may terminate this Agreement for cause if the other party fails to perform any material obligation hereunder. In the event Artist abandons the art work, defaults on any material term of this Agreement or otherwise causes it to be termi- nated without cause prior to completion of the work, Artist shall not be entitled to recover further compensation from the Arts Commission, and Artist shall be liable for any additional costs that the Arts Commission has to assume because Artist terminated without cause. If the Arts Commission fails to perform any material obligation hereunder, including failure to pay Artist, Artist may cease work and exercise any remedies available under law. 15. ART PRESERVATION. The mural is intended to be a "Temporary Installations Made for the Elements". The Arts Commission may at its discretion remove the art work. Provided however, the Arts Commission must provide written notice to the Artist ten (10) days prior to removal of the mural. 16. MISCELLANEOUS TERMS AND CONDITIONS (a) The Arts Commission agrees to acknowledge Artist in connection with this project in, but not limited to, publicity, presentations, exhibitions, reports, fundrais- ing activities, etc. (b) Any substantive change in the project, including but not limited to a major change in size, site, or sponsorship may void this contract or be cause for it to be re- ',i .~ negotiated. (c) Every effort will be made to lend support and technical assistance to Artist. (d) Artist agrees to acknowledge sponsorship of the Arts Commission in the in- scription of the resulting work of art and to the best of his or her ability acknowledge sponsorship of the Arts Commission in any publicity, reports, presentations, program notices, etc. (e) Artist shall use. the utmost care and shall exercise the utmost security meas- ures to carry out the work necessary for the execution of the project. (f) No provision of this Agreement shall be construed or interpreted as creating a pledge of the faith and credit of the County within the meaning of any constitutional debt limitation. No provision of this Agreement shall be construed or interpreted as creating either a delegation of governmental powers nor as a donation by a lending of the credit of the County within the meaning of the Constitution of the State of North Carolina. This Agreement shall and does not directly or indirectly or contingently obligate the County Government or the Arts Commission to make any payments beyond those appropriated in the sole discretion of the County for any fiscal year in which this Agreement shall be in effect. No deficiency judgment may be rendered against the County in any action for breach of a contractual obligation under this Agreement and the taxing power of the County is not and may not be pledged directly or indirectly or contingently to secure any monies due under this Agreement. 17. NOTICE PROVISION. Any notices deemed necessary shall be given by either party to the other as follows: If to the Arts Commission: Martha Shannon Orange County Arts Commission Post Office Box 8181 Hillsborough, North Carolina 27278 If to Artist: Cindy Newport 8214 Allison Road Cedar Grove, North Carolina 27231 18. SIGNATURE. The parties agree that a signature by facsimile is as valid as an origi- nal signature. 19. ENTIRE AGREEMENT. This agreement represents the entire agreement of the parties and may not be amended unless agreed to in writing by the parties. This Agreement contains the entire understanding of the parties and shall not be altered, amended or modified, except by an agreement in writing executed by the duly authorized officials of both parties. ~~ 20. GOVERNING LAW. The laws of North Carolina shall govern the validity and interpretation of the provisions, terms and conditions of this Agreement. IN WITNESS WHEREOF, the parties have hereunto signed this Agreement in their official capacities of the day and year listed on the signature page affixed to this Agreement. For and on behalf of Orange County Arts Commission Approved as to techn' al content Mai a Shannon, Arts Commission Date For and n behalf of the Artist ~. Cindy Ne Date For and on behalf of Oran County Government ~~ ank on, I m o anager Date Ap rdved to form and legal sufficiency to ¢ 0 ette M. oore, Staff Attorney Date This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Co trol Act ~~ Gary, eys, Director Date Financial S ices