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HomeMy WebLinkAbout2009-108 Arts Commission - Wayne Trapp Commission for Public Art Work at Library NORTH CAROLINA ORANGE COUNTY AGREEMENT FOR COMMISSION OF PUBLIC ART WORK !/~ v s-~oo9 lv ~ THIS AGREEMENT, made and entered by and between ORANGE COUNTY (the "County") and WAYNE TRAPP (the "Artist") residing at 427 Russell Beach Road, Vilas, NC 28692, (collectively the "Parties"). WITNESSETH WHEREAS, on November 26, 2008, a Public Art Selection Committee (the "Committee") was convened by the Orange County Arts Commission (the "Commission"), and WHEREAS, the Committee proposed to select Wayne Trapp to design, fabricate, deliver, and install an outdoor sculpture at the new Orange County Public Library, 137 W. Margaret Lane, Hillsborough, NC (the "Site"), and WHEREAS, the Orange County Arts Commission approved of the recommendation by this artist selection committee, and WHEREAS, on November 5, 2009, after a review of public comments, the Board of County Commissioners approved of Wayne Trapp's design proposal (the "General Design Concept"), WHEREAS, on February 3, 2010, the Hillsborough Historic District Commission approved of Wayne Trapp's design proposal (the "General Design Concept"), NOW, THEREFORE, based upon the mutual promises contained herein and other valid and sufficient consideration, the parties agree as follows: ARTICLE 1. DESIGN DEVELOPMENT a. Artist will have a maximum of (30) days after execution of this Agreement to refine and add details to the General Design Concept in collaboration with the Parties and input from the citizens of the Site community, and complete a fully developed design proposal, which shall consist of a project budget, scaled drawings, a written statement describing the concept for the public art, material samples, samples of coatings and finishes, a tentative fabrication and delivery schedule, steps for installing the work at the Site, and maintenance recommendations (the "Fully Developed Design Proposal"). The fabrication and delivery schedule shall provide for progress reports at 50%, and 100% completion of fabrication, include photographs and other images of the public art, and require delivery to, and installation of the public art at, the Site before the end of June, 2010. b. The Committee and/or the Hillsborough Historic District shall review the Fully beveloped Design Proposal by the Artist. The Committee and/or the Hillsborough Historic District may either accept the Fully Developed Design Proposal, or request 2 that the Artist Team develop a second proposal within a reasonable timeframe, not exceeding thirty (30) days. In the event that a second Fully Developed Design Proposal is not accepted by the Committee and/or the Hillsborough Historic District, the Artist and the County will have the option to terminate this Agreement or develop a third design proposal within a reasonable timeframe, not exceeding thirty (30) days. If the Artist or the County chooses to terminate the agreement, the Artist will retain the first payment, and the remainder of the Commission funds will remain with the County, who will have the option to commission another artist for the project. d. If a Fully Developed Design Proposal is approved as set forth above, the County will notify the Artist in writing of the acceptance of the Fully Developed Design Proposal (hereafter the "Approved Proposal"). Any change or deviation in scope, design, color, size, material, texture or location or other change in the Approved Proposal must be approved in advance and in writing by the Committee and/or the Hillsborough Historic District and the Artist. e. Copies of design proposals and any Approved Proposal shall be maintained in the public records of the County. ARTICLE 2. FABRICATION AND DELIVERY a. The Artist shall fabricate and deliver the public art in accordance with the Approved Proposal (the "Art Work"). b. The County shall have the right to review the Art Work at reasonable times during fabrication. If possible, a visit to the Artist's studio or the fabricator's studio by one of more members of the Committee will be arranged. c. The Artist shall notify the County when the Art Work is fabricated and ready for delivery to, and installation at, the new Orange County Public Library. The Artist will arrange and be responsible for the installation of the Art Work. If the public art does not conform to the Approved Proposal, the County shall be entitled to reject the public art, cease payment and pursue all remedies available to a purchaser of goods under applicable law. d. The Artist shall be responsible for providing a detailed description of the installation steps for the Art Work, including recommended equipment and site preparation. The County may, at its discretion, approve the installation of the Art Work. ARTICLE 3. POST INSTALLATION PUBLICITY Within 30 days of Final Acceptance, the Artist shall provide to the County the following: a set of three views of the Art Work in digital form. If such products are not of sufficient quality to serve as a guide to future conservation or for publicity and other promotional activities, the County may require that they be replaced. The Artist shall be available at such times as may be agreed between County and the Artist to present proposals, for installation of the Art Work and for any inauguration or presentation ceremonies relating to the transfer of the Art Work to the County or another public meeting or outreach. 3 ARTICLE 4. FINAL ACCEPTANCE Within thirty (30) days after installation of the Art Work at the Site, and receipt of the final report, the County shall either accept the Art Work by written notice to that effect or notify the Artist of nonconformities or other failure to provide all services required. The Artist shall then be given a reasonable period of time not exceeding fifteen (15) days to cure such nonconformities and provide required services, or to come to agreement with the County on the steps to cure such non-conformities according to a mutually acceptable schedule. If the County does not notify the Artist of nonconformities or other failure to provide all services required within thirty (30) days after the delivery and installation of the Art Work, it shall be deemed to have accepted the Art Work. ARTICLE 5. RISK OF LOSS The risk of loss or damage to the Art Work shall be borne by the Artist until delivery, and the Artist shall take such measures as are necessary to protect the Art Work from loss or damage until delivery. ARTICLE 6. TITLE Title to the Art Work shall pass to the County upon final acceptance. Such title shall allow the County to maintain, relocate on the Site or elsewhere, store, sell or otherwise dispose of the Art Work. ARTICLE 7. COMPENSATION AND PAYMENT SCHEDULE The County shall pay the Artist a total of $5,000, which shall constitute full compensation for all services and materials to be performed and furnished by the Artist under this Agreement. The Artist Team may invoice the County based on the schedule below: a. $2,500 upon delivery and installation of the Art Work to the Site. b. $2,500 upon completion of the scope of services of this Agreement, delivery of final report, and Final Acceptance. Provided, however, that in the event the Artist does not complete the Art Work and/or deliver and install it in accordance with the terms of the Approved Proposal or this Agreement, as may be amended in writing by the Parties, the County shall be c;ntitled to ~ein~:bursement for all installment payments made after payment "a" above. If the County, however, chooses to terminate the agreement through no fault of the Artist, the Artist will retain all payments made up to the point of termination. Any sales, use or excise taxes or similar charges relating to services and materials shall be paid by the Artist. The Artist shall be responsible for the payment of all mailing or shipping charges on submissions to the County, the costs of storage, transporting, delivery and installation of the Art Work at the site, and costs of all travel by the Artist and the Artist's agents and employees necessary for the proper performance of the services required under this Agreement. 4 The County shall make no payments to the Artist until such time as the County has received accurate invoices submitted in accordance with the schedule described above that describe the work accomplished. The County shall pay within 30 days of receipt of all accurate invoices. ARTICLE 8. WARRANTIES a. The Artist represents and warrants that (a) the Art Work is solely the result of the artistic effort of the Artist; (b) the Art Work is unique and original and does not infringe upon any copyright such that the Artist obtains rights under the Copyright Act of 1976, 17 U.S.C. § 101 et seq.; (c) the Artist has not transferred or licensed any interest in the copyright; (d) that the Art Work, or a duplicate thereof, has not been accepted for sale elsewhere; (e) the Art Work is free and clear of any liens from any source whatever; (f) the fabrication and installation of the Art Work will be performed in a Art Workmanlike manner; (g) for a period of two years after the final acceptance of the Art Work, the Art Work, as fabricated and installed, will be free of defects in material and Art Workmanship, including any defects consisting of "inherent vice" or qualities which cause or accelerate deterioration of the Art Work, and (h) for a period of two years after the final acceptance of the Art Work, reasonable maintenance of the Art Work will not require procedures substantially in excess of those described in the maintenance recommendations to be submitted by the Artist. b. The Artist acknowledges that the County is an intended beneficiary of the warranties made herein, and such warranties shall accrue to the benefit of the County. ARTICLE 9. INSURANCE a. The Artist shall purchase and maintain until installation of the Art Work and Final Acceptance, personal injury, property and general liability insurance from an insurance company acceptable to the County and authorized to do business in the State of North Carolina in sufficient and reasonable amounts to cover applicable risks. The County shall be named as an additional insured on all such policies. The Artist shall furnish the County with a Certificate of Insurance which shall contain a provision that County shall be given 30 days written notice prior to any amendment or termination of the policy by either the insured or the insuring company. b. In the event of loss or damage prior to installation, it will be the responsibility of the Artist to cover costs associated with the replacement of the Art Work. ARTICLE 10. INDEMNITY The Artist shall indemnify and hold harmless the County, each officer, agent and employee of County, against all claims against any of them for personal injury or wrongful death or property damage arising out of the negligent performance of professional services by the Artist or .caused by any negligent act, error or omission of the Artist, or anyone employed by the Artist in the performance of this Agreement. To the extent allowed by law, the County shall indemnify and hold harmless the Artist for all claims against the Artist for personal injury or wrongful death or property damage arising out of the negligence of any officer or employee of the County. The foregoing is not intended as a waiver of governmental immunity by the County. ARTICLE 11. COPYRIGHT PROVISIONS a. Following installation and Final Acceptance of the Art Work, the County shall have and own all right, title and interest in and to the physical media embodying or encompassing the Art Work. b. The Artist shall not transfer any copyright interest or privilege in and to the Art Work without the prior written consent of the County; c. The Artist shall not display any reproduction of the Art Work for commercial purposes without the prior written consent of the County. d. The Artist shall provide credit to the County in all reproductions and displays (to the extent authorized herein) reading substantially, "an original Art Work commissioned by Orange County, North Carolina." ARTICLE 12. REPAIR AND MAINTENANCE It is the County's intent, if feasible, to consult with the Artist in the event that the Art Work requires repair or renovation. However, the County retains, at its sole discretion, the right to determine when and if repairs and restorations to the Art Work will be made, or whether to de- accession the Art Work. ARTICLE 13. NO AGENCY The Artist shall perform all work as an independent contractor and not as an agent or an employee of the County. The Artist shall not be supervised by any employee or official of County nor shall the Artist exercise supervision over any employee or official of the County. ARTICLE 14. WAIVER No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants and conditions of this Agreement. The payment or acceptance offers for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. ARTICLE 15. GOVERNING LAW This Agreement, regardless of where executed or performed, shall in all respects be governed by and construed in accordance with the laws of the State of North Carolina, excluding any choice of law rule which would select the application of the law of another jurisdiction. ARTICLE 16. ASSIGNMENT This Agreement may not be assigned without the prior written approval of all of the Parties. Any purported assignment of this Agreement without such approval shall be absolutely void. ARTICLE 17. NON-DISCRIMINATION In connection with the performance of this Agreement, the Artist shall not discriminate against any employee, applicant for employment or program participant because of race, religion, color, gender, sexual preference or national origin. In addition the Artist shall not discriminate against 6 _, any employee, applicant for employment or program participant on the basis of handicapped status. ARTICLE 18. AMENDMENTS This Agreement may only be amended by written amendments signed by all of the Parties. ARTICLE 19. TERMINATION The County may terminate this agreement upon thirty (30) days written notice to Artist. In addition to the termination provisions set forth above, if either party to this Agreement shall fail to fulfill in a timely and proper manner, or otherwise violate, any of the covenants, agreements or stipulations material to this Agreement, the other party shall thereupon have the right to terminate this Agreement by giving written notice to the defaulting party of its intent to terminate specifying the grounds for termination. The defaulting party shall have fifteen (15) days after receipt of the notice to cure default. If it is not cured or if the Parties have not agreed to steps to cure the default according to a mutually acceptable schedule, then this Agreement shall terminate. In the event of default by the Artist, all finished and unfinished drawings, sketches, photographs and other Art Work products prepared or submitted or prepared for submission by the Artist under this Agreement shall at the County's option become its property, provided that no right to fabricate or execute the Art Work shall pass to the County. The Artist shall not be relieved of liability to the County for damages sustained by the County by virtue of any breach of this Agreement by the Artist, and the County may reasonably withhold payments to the Artist until such time as the exact amount of such damages due the County from the Artist is determined. ARTICLE 20. OTHER REMEDIES The specification of remedies in this agreement shall not be deemed to be exclusive. The County retains the right to pursue any remedies available for defective or delayed performance, including specifically the right to set off any damages for defective or delayed performance against any sum due the Artist under this Agreement. ARTICLE 21. NOTICES All notices, requests, demands and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, at the following addresses or such other address as specified in writing from time to time by the party receiving notice: a. if to County, to: Frank W. Clifton, Jr. County Manager Orange County P.O. BOX 8181 Hillsborough, NC 27278 (919) 245-2330 7 ~~r b. if to the ARTIST, to: WAYNE TRAPP 427 RUSSELL BEACH ROAD VILAS, NC 28692 (828) 297-4722 c. if to the COMMISSION, to: Martha Shannon Orange County Arts Commission P.O. Box 1177 Hillsborough, NC 27278 (919) 245-2335 ARTICLE 22. TIME IS OF THE ESSENCE Time is of the essence with respect to the obligations of the parties hereunder. -,~ IN WITNESS WHEREOF, the parties ereunto cause this agreement to be executed in their respective names. This the I Z- day of , 2010. WAYNE TRAPP - , SIG _ i .~r~~i5 ~Jn n [' S WITNESS ORANGE COUNTY r ____. r--- TITLE This instrument has been pre-audited in a manner required by the Local Government Budget and Fiscal Control Act ~~ ~ J~ FINANCE DIRECTOR as to ARTMEl~tfi DIRECTOR approved as to`fi~m and legal sufficiency C TY ATTORNEY