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HomeMy WebLinkAboutAgenda - 06-23-2005-5qORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: June 23, 2005 Action Agenda Item No. SUBJECT: Agreement for Southern Human Services Center Public Art Project DEPARTMENT: Orange County Arts Commission PUBLIC HEARING: (Y/N) No ATTACHMENT(S): Draft Agreement for Southern Human Services Center Public Art Project INFORMATION CONTACT: Martha Shannon, ext. 2335 Durham 688-7331 Mebane 336-227-2031 TELEPHONE NUMBERS: Hillsborough 732-8181 Chapel Hill 968-4501 PURPOSE: To authorize the County Manager to sign the Southern Human Services Center Public Art agreement with artist Sarah Craige contingent upon final review by staff and the County Attorney. BACKGROUND: On June 7, 2005, the BOCC approved Orange County artist Sarah Craige far the Southern Human Services Center Public Art Project.. FINANCIAL IMPACT: No new money is needed. $9,000 for this project was appropriated by the BOCC in the FY05 operating budget. Additional money has been raised from the private sector (Howard, Perry and Walston Foundation). If a grant from the NC Arts Council is received, an apprenticeship component of this project will be funded. RECOMMENDATION(S): The Manager recommends that the Board authorize the Manager to sign the Southern Human Services Center Public Art agreement with artist Sarah Craige contingent upon final review by staff and the County Attorney. 2 NORTH CAROLINA ORANGE COUNTY AGREEMENT FOR COMMISSION OF PUBLIC ART WORK THIS AGREEMENT, made and entered by and between ORANGE COtTNTY (the "County") and SARAH CRAIGE (the "Artist") residing at 4100 Red Tail Run, Efland, NC 2724.3, (collectively the "Parties"). This Agreement concerns the design, fabrication, and delivery of a the mural (the "Art Work") by Sarah Craige to be installed by the Artist at the Southem Human Services Center, 2501 Homestead Road, Chapel Hill, NC (the "Site"). WITNESSETH WHEREAS, on April 26, 2005, a Public Art Selection Committee was convened by the Orange County Arts Commission (the "Commission"), and WHEREAS, the Public Art Selection Committee included representatives of the County, the Commission, Arts Professionals, and the Community, and WHEREAS, the Public Art Selection Committee selected Sarah Craige to enter into an agreement with the County to design, fabricate, deliver, and install a the mural based on her design proposal for the Site, and WHEREAS, on May 9, 2005 the Orange County Arts Commission approved of the recommendation of Sarah Craige's design proposal for public azt at the Southern Human Services Center, and WHEREAS, on .Tune 7, 2005, after a review of public comments and following the recommendation of the Orange County Arts Commission, the Board of County Commissioners approved of Sarah Craige's design proposal to develop a the mural for the Southern Human Services Center. 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. Once the design proposal has been accepted by the Board of County Commissioners, the County Manager and the Artist will sign this Agreement for the commission of public art work. b. After execution of this Agreement, the Artist will have a maximum of (60) days to become involved with the Southern Human Services Center community in order to refine and add details to the general conceptual approach which was presented and approved by the Board of County Commissioners on Tune 7, 2005. The fully developed design proposal shall consist of: a project budget, scaled drawings, a written statement describing the concept for the Art Work, material samples, samples of coatings and finishes, a tentative fabrication schedule, instnrctions for installing the work at the Site, and maintenance recommendations. c. The Commission shall schedule a review of the fiilly developed design proposal by the Southern Human Services Center Public Art Selection Committee, The Artist shall attend this review. At this meeting, this selection committee may accept the fully developed design proposal, or request that the Artist develop a second proposal within a reasonable timeframe, not exceeding thirty (30) days. d. In the event that a second design proposal is not accepted by the Southem Human Services Center Public Art Selection Committee, 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 terninate 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. e Once a final design proposal is accepted by the Southern Human Services Center Public Art Selection Committee, the County will notify the Artist in writing to begin fabrication of the Art Work. An updated report from this selection committee will be made to the Commission. f: The Commission and the County Manager will have the option to request that the design proposal, or elements thereof; remain in the permanent collection of Orange County by the project completion date. In the event that neither the Commission nor the County Manager makes this request, the design proposal will remain the property of the Artist. ARTICLE 2, CONSTRUCTION AND INSTALLATION SCHEDULE After the Artist has received notification to begin the fabrication of the Art Work, the Artist will have fifteen (15) days to deliver a fabrication and delivery schedule for the Art Work. This schedule shall include progress reports at 50%, and 100% completion of fabrication, which will include photographs, or other images of the Art Work to be delivered to the Commission and County. If possible, a visit to the Artist's studio or the fabricator's studio by one of more members of the Southern Human Services Public Art Selection Committee will be arranged. The constnrction and installation schedule is subject to the County's approvah Such schedule maybe amended by written agreement between the County and the Artist. ARTICLE .3. FABRICATION The Artist shall fabricate and construct the Art Work in accordance with the design proposal and budget for the commission, and the approved construction schedule, in any event so that the Art Work is delivered to the Southern Human Services Center before the end of .Tune, 2006. The County shall have the right to review the Art Work at reasonable times during fabrication. Any change or deviation in scope, design, color, size, material, texture or location beyond what is contemplated in the above-referenced proposal for the Art Work must be approved in advance and in writing by the County and the Commission, particularly if such change or deviation would affect installation, scheduling or site preparation. ARTICLE 4. DELNERY AND INSTALLATION a. The Artist shall notify the County when the Art Work is fabricated and ready for delivery to the Southern Human Services Center. The Artist will arrange for the installation of the Art Work. If the Art Work does not conform to the accepted design proposal, the County shall 4 be entitled to reject the Art Work, cease payment and pursue all remedies available to a purchaser of goods under applicable law.. b, The Artist shall coordinate with the County and deliver the Art Work to the Southern Human Services Center in accordance with the approved schedule. c. The Artist shall be responsible for providing a detailed description and installation instructions for the Art Work, including recommended equipment and site preparation. The County will oversee installation of Art Work. ARTICLE 5, LIEN WAIVERS Upon completion of installation, but in any event before Final Acceptance, the Artist shall secure lien waivers in a form acceptable to the County for all of the Artist's subcontractors and each of their subcontractors.. ARTICLE 6. POST INSTALLATION PUBLICITY Within 30 days of Final Acceptance, the Artist shall provide to the County the following: (1) two sets of three different .35 mm color slides taken from three different viewpoints of the Art Work; (2) two sets of three different 8 x 10 glossy black and white prints of the Art Work each taken from a different viewpoint and (.3) a set of three different views of the Art Work in digital form, If such products are not of sufficient quality to serve as a guide to future conservation, the County may require that they be taken again. The Artist shall be available for three trips to the County at such times as may be agreed between County and the Artist: (a) to present the proposal, (b) for installation of the Art Work and (c) for any inauguration or presentation ceremonies relating to the transfer of the Art Work to the County or another public meeting or outreach meeting or outreach function. The County shall use its best efforts to arrange for publicity for the completed Art Work as soon as practicable following installation. ARTICLE 7, FINAL ACCEPTANCE Within thirty (30) days after the delivery of the Art Work to the County, its installation and receipt of the Final Report, the County shall either accept the Art Work as completed by written notice to that effect or notify the Artist of nonconformities or failure to provide all services required.. The Artist shall then be given a reasonable period of time not exceeding thirty (30) days to cure such nonconfonnities and provide required services, or to come to agreement with the County on the steps to cure such non-confornrities according to a mutually acceptable schedule.. If the County does not notify the Artist of nonconformities or failure to provide all services required within 14 days, it shall be deemed to have accepted the Art Work. ARTICLE 8. RISK OF LOSS The risk of loss or damage to the Art Worlc 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. The County recommends that the Artist acquire fine arts insurance. Notwithstanding the above, the Art Work shall be covered by the County's insurance from the time it has been delivered to the Southern Human Services Center.. ARTICLE 9. TITLE Title to the Art Work shall pass to the County upon final acceptance. Such title shall allow the County to maintain as qualified by Article 15, relocate on the Site or elsewhere, store, sell or otherwise dispose of the Art Worlc. ARTICLE 10. COMPENSATION AND PAYMENT SCHEDULE The County shall pay the Artist a total of $10,000. This payment shall constitute full compensation for all services and materials to be performed and furnished by the Artist under this Agreement. This fee shall represent total compensation for all services performed or required to be performed by this contract, regardless of any circumstances which may not be foreseen at the time of the execution of this contract. More specifically, it shall include raw materials, fabrication supplies, installation expenses, artist fee for fabrication, photo documentation and publicity. Additional funds maybe allocated towards this project by the Orange County Arts Commission. Notification of the availability of these funds will be made to the Artist and the County by the Commission, The Artist shall beaz the risk of increased costs due to late delivery, or defective performance. The Artist may invoice the County based on the schedule below. The fee shall be paid in the following installments, each installment to represent full and final, non- refundable payment for all services and materials provided prior to the due date thereof: a. $1,500 upon execution of this Agreement. b, $1,500 upon the acceptance of the Final Design by the Public Art Selection Committee. b. $2,000 upon 50% fabrication and acceptance of interim report by the Orange County Arts Commission. d. $3,000 upon 100% fabrication and acceptance of report by the Orange County Arts Commission. e. $1,000 upon delivery and installation of the the mural to the Southern Human Services Center.. f $1,000 upon completion of the scope of services of this Agreement and Final Acceptance. Provided, however; that in the event the Artist does not complete the Art Work and/or deliver it in accordance with the terms of this Agreement as it may be amended by the Parties, the County shall be entitled to reimbursement 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. The County makes no representations concerning the applicability of sales taxes to the purchase of materials by the Artist for the Art Worlc. Any sales, use or excise taxes or similar charges relating to services and materials shall be paid by the Artist and should be included in any budget. The Artist shall he responsible for the payment of all mailing or shipping charges on submissions to the County, the costs of storage and transporting the Art Work to the site and the costs of all travel by the Artist and the Artist's agents and employees necessary for the proper perfomrance of the services required under this Agreement, 6 ARTICLE I1. INVOICES 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 in ARTICLE 10 that describe the work accomplished. The County shall pay within :30 days of receipt of all accurate invoices. ARTICLE 12. WARRANTIES a. The Artist represents and warrants that (a) the Art Work is solely the result of the artistic effort of the Artist; (b) except as otherwise disclosed in writing to the County, 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 execution and fabrication 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 (lr) 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 County shall give notice to the Artist of any observed breach with reasonable promptness. The Artist shall, at the request of County, and at no cost to County, cure promptly the breach of any warranty which is curable and which cure is consistent with professional conservation standards (including for example, cure by means of repair or refabrication of the Art Work), The Artist shall provide Commission with copies of all written warranties associated with construction, fabrication, and installation of Art Work, c. 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 1.3. INSURANCE The Artist shall purchase and maintain until installation of the Art Work and final acceptance by the County, insurance from an insurance company acceptable to the County and authorized the term of this contract to do business in the State of North Carolina. Such insurance shall include commercial general liability insurance covering, bodily injury and property damage in the amount of at least $500,000.00 bodily injury, each occurrence/aggregate, and at least $500,000.00 property damage, each occurrence/aggregate, and at least $500,000..00 bodily injury and property damage combined single limits, each occurrence/aggregate, which insurance includes coverage for contractual liability, personal injury liability and products/completed operations. 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. 7 The County will not compensate the Artist for loss or damage of the Art Wark before it is delivered to the Southern Human Services Center, Iu the event of loss or damage, it will be the responsibility of the Artist to cover costs associated with the replacement of the Art Work. ARTICLE 14~ INDEMNITY The Artist shall indemnify and hold harmless the County, each officer, agent and employee of County, against all claims against any of them far personal injury or wrongful death or property damage arising out of the negligent performance of professional services or caused by any negligent act, error or omission of the Artist, or anyone employed by the Artist in the performance of this Agreement. Additionally, the Artist shall indemnify and hold harmless the County from and against any lien claim of the Artist, its subcontractors, and their respective subcontractors. No funds associated with this contract maybe used to pay indemnity, provided, however, that the Artist shall be entitled to purchase insurance out of the funds associated with this contract. To the extent allowed bylaw, the County shall indemnify and hold hazmless 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. ARTICLE 15. 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.. Soth before and after such installation and acceptance, the Artist shall retain all rights he may have under the copyright Act of 1976, USC 101 et seq., and all other intellectual property rights in and to the Art Work, the design proposal and all elements thereof, and incidentals except, as expressly provided in this Agreement. b. The Artist hereby grants to the County nontransferable, non-exclusive licenses authorizing the County to: i.. Make photographic or othertwo-dimensional reproductions of the Art Work, including reproduction for exhibition catalogues, books, slides, photographs, postcazds, calendazs, magazines, books, news services, provided that the County shall not sell such reproductions without the prior consent of the Artist. The County and Artist will agree to compensation for sale of catalogues, books, slides, photographs, postcards, calendars, magazines, books, and news services featuring Art Work; ii.. Use and display of the Art Work or anytwo-dimensional reproductions of the Art Work in advising, publicity or public service materials for the County, any public agency thereof, or for any event associated with the County, or associated with the display of the Art Work; iii.. Display the Art Work publicly or privately whether or not for charge; iv.. Register the Art Work under the Copyright Act or renew any regishation so long as such registration includes the Artist as the owner of the copyright of the Art Work, and; v._. Initiate and prosecute any suit for the infringement of the copyright of the Art Work. The County shall not be obligated to pay any royalty for such licenses. The County shall give credit to all reproductions by or on behalf of the County (to the extent authorized herein). The credit shall contain a credit to the Artist and copyright notice as follows: "Copyright [Q] 2006 (Sarah Craige). All Rights Reserved," The Artist agrees to the following covenants limiting the retained copyright of the Artist as follows: 1. The Artist shall not transfer any copyright interest or privilege in and to the Art Work without the prior consent of the County; 2. The Artist shall not display any reproduction of the Art Work for commercial purposes without the prior consent of the County. 3. 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 16, REPAIR AND MAINTENANCE The County affirmatively states that it is the County's intent to consult with the Artist in the event that the Work requires repair or renovation.. However, the County retains the right to determine when and if repairs and restorations to the Art Work will be made, The County will make every reasonable effort to contact the Artist in the event that the Work requires repair or renovation, The County shall also make every reasonable effort to give the Artist an opportunity to approve all material repairs and restorations, or to commission the Artist to make said repairs, except for replacement ofbroken or wom components being fabricated by the same fabricator that originally provided them. Both parties agree that neither the County nor the Artist shall unreasonably withhold or delay the determination of the scope and expense of repairs. If the Artist cannot be located at the notice address or unreasonably fails to approve any repair or restoration, the County shall have the right to make such repair or restoration without consulting the Artist, To a reasonable extent, the Artist shall be given the opportunity to make or personally supervise significant repairs and restorations. Nevertheless, the County shall have the right to make any repairs it deems fit to the Art Work if reasonable efforts to work with the Artist are not successful. Any compensation to be paid to the Artist for repairs, if at all, shall be the subject of another agreement. In the event of damage which results in the removal of the Art Work from the Site, the County, subject to available funding and approval by the appropriate County Officials, will to its best ability work with the Commission and the Artist to maintain, reconstruct or replace the Art Worlc. To a reasonable extent, the County will consult with the Artist and work to the best of its ability to maintain, reconstruct, or replace the Art Work. In the case that the Site is no longer appropriate for the Art Work, but the function of the Art Work as symbolic, historic and decorative remains, the County will to the best of its ability work with the Commission and the Artist to relocate the Art Work within Orange County. The County reserves the right to de-accession the Art Work if it determines it is not possible to reconstruct, maintain, or replace the Art Work or if the Art Work is determined to be detrimental to public safety.. The Artist or the Artist's estate will have the first option to reclaim the Art Work from the County in accordance with applicable law regulating the disposition of such property by the County. It is the Artist's responsibility to notify the County at the address listed in Article 26 each and every time the Artist changes address. The County will make every reasonable effort to contact the Artist in the event the Work requires repair or renovation. However, both parties recognize that it would be in the best interest of both the Artist and the County if the Artist would notify the County on occasion of the Artist's continuing interest in any repair or renovation of the Work. The County recommends that after a period of 10 years the Artist notify the County in writing 9 with the Artist's most recent contact information (address, telephone, etc.).. After the initial notice the County recommends that the Artist notify the County every 5 years. ARTICLE 17. 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 18. WAVER 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 19. 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 oflaw rule which would select the application of the law of another,jurisdiction, ARTICLE 20. BINDING EFFECT This Agreement shall be binding upon and shall inure to the benefit of the County and the Artist and their respective successors and assigns as permitted under this Agreement„ ARTICLE 2L 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 22. 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 any employee, applicant for employment or' program participant on the basis of handicapped status. ARTICLE 23, AMENDMENTS This Agreement may only be amended by written amendments signed by all of the Parties. ARTICLE 24. TERMINATION hl 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 five (5) days 10 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 deternrined. ARTICLE 25. 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 26. DISPUTE RESOLUTION All claims, disputes, and other matters in question between the parties to this Agreement, arising out of or relating to this Agreement or the breach thereof; shall be decided by mediation held in Orange County, North Carolina. If unsuccessful, binding arbitration in accordance with the mast current rules of the American Arbitration Association shall be conducted, however, consideration of artistic merit being a matter for the exclusive determination of the Artist, no dispute or controversy may azise with respect thereto. ARTICLE 27. 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 maybe, 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: .John Link County Manager Orange County P.O. Box 8181 Hillsborough, NC 27278 (919)245-2330 b. if to the ARTIST, to: Sarah Craige 4100 Red Tail Run Efland, NC 27243 (919)563-6755 11 c, if to the COMMISSION, to: Martha Shannon Orange County Arts Commission P~O. Box 1177 Hillsborough, NC 27278 (919)245-2335 ARTICLE 28. TIME IS OF THE ESSENCE Time is of the Essence with respect to the obligations of the parties hereunder. 12 This Contract is between Orange County and Sarah Craige for the design, fabrication, and delivery of a the mural to be installed by the Artist at the Southern Human Services Center, 2501 Homestead Road, Chape] Hill, NC. IN WITNESS WHEREOF, the parties hereunto cause this agreement to be executed in their respective names, This the day of , 2005. SARAH CRAIGE SIGNATURE TITLE WITNESS ORANGE COUNTY County Manager ATTEST BY COUNTY CLERK: COUNTY CLERK COUNTY SEAL Approved as to Form and Authorization COUNTY ATTORNEY This instrument has been pre-audited in a marmer required by the Local Government Budget and Fiscal Control Act FINANCE DII2ECTOR ECONOMIC DEVELOPMENT DIRECTOR