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HomeMy WebLinkAboutArt Work Commission Agreement - Harold Langland1316 COUNTY -CITY BUILDING 227 W. JEFFERSoN BOULEVARD SOUTH BEND. INDIANA 46601-1830 CITY OF SOUTH BEND PETE BUTTIGIEG, MAYOR BOARD OF PUBLIC WORKS August 9, 2016 Harold R. "Tuck" Langland 12632 Anderson Road Granger, IN 46530 PHONE 574/235-9251 FAX 574/235-9171 RE: Art Work Commissioning Agreement - Monument of Father Hesburgh and Dr. King Dear Mr. Langland: The Board of Public Works, at its meeting held on August 9, 2016, approved the above referenced agreement in the amount of $240,000,00. Enclosed please find a copy of the agreement for your records. If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, Linda M. Martin, Clerk Enclosure c: Jitin Kain, Public Works GARY A. GILOT DAVID P. RELOS ELIZABETH A. MARADIK JAMES A. MUELLER THERESE J. DORAU ART WORK COMMISSIONING AGREEMENT This Art Work Commissioning Agreement (this "Agreement") is entered into as of June 2016 (the "Effective Date"), by and between the City of South Bend, acting by and through its Board of Public Works, of 1300 N. County -City Building, 227 W. Jefferson Blvd., South Bend, Indiana 46601 (the "City") and Harold R. "Tuck" Langland, an Indiana resident, of 12632 Anderson Rd., Granger, Indiana 46530 (the "Artist") (each a "Party," and together the "Parties"). RECITALS A. The City is a municipal corporation existing and operating pursuant to the laws of the State of Indiana. B. The City desires to commission the Artist to create for placement in the City a 110% life-size sculpture (the "Work") commemorating the historical event of Fr. Theodore Hesburgh, C.S.C., and Rev. Dr. Martin Luther King, Jr., joining arms at a civil rights rally at Soldier Field in Chicago, Illinois, on June 21, 1964 (the "Event"), and the Artist desires to accept the commission. C. The City, acting by and through the Board of Public Works, has determined that commissioning the Artist on the terms of this Agreement is in the best interests of the residents of the City. NOW, THEREFORE, in consideration of the mutual covenants stated herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows: ARTICLE 1— SCOPE OF SERVICES 1.1 The Work (a) The Work shall consist of a sculpture inspired by the Event. Specifically, the Work will depict Fr. Hesburgh and Dr. King with clasped hands, with their outside hands empty and able to be grasped by visitors to the Work. (b) The Work shall be 110% life-size, or about 79 inches tall, for the Hesburgh figure and appropriately smaller for the King figure. It shall be cast in silicon bronze, the industry standard, with proper interior stainless steel bracing ready for installation. The finish shall be a standard brown patina with industry standard protective coatings. 1.2 The Process of Completing the Work (a) The Artist will complete the Work and cause it to be delivered to the City no later than June 16, 2017 (the "Delivery Deadline"), provided that the City meets its obligations under this Agreement in a timely fashion. 0 (b) Upon receipt of the first installment payment, in accordance with Article 2, the Artist shall create a maquette, or model, in clay, at 27 inches tall ("the maquette"). This maquette of both figures, anus and hands linked, shall be made available to the City at the Artist's studio in Granger, Indiana, for inspection, suggestions, adjustments, and approval before proceeding. The Artist will provide the City at least ten days' notice of the first day on which the maquette will be available for inspection by the City. The City's representative(s) shall inspect the maquette within ten days after the date the maquette is made available for inspection, or later with mutual agreement. (c) Upon approval and the receipt of the second installment payment, in accordance with Article 2, the Artist shall cause the clay maquette to be enlarged to the final size ("the enlargement"). When complete, the enlargement shall be made available to the City at the Artist's studio in Granger, Indiana, for inspection, suggestions, adjustments, and approval, to assure an accurate rendering of the maquette at the final size. The Artist will provide the City at least ten days' notice of the first day on which the enlargement will be available for inspection by the City. The City's representative(s) shall inspect the enlargement within ten days after the date the enlargement is made available for inspection, or later with mutual agreement. (d) Upon approval and receipt of the third payment, in accordance with Article 2, the Artist will cause the full-size clay sculpture to be cast in bronze. There can be no adjustments or changes after the full size clay has been approved under Section 1.2(c). 1.3 Delivery, Acceptance, and Installation of the Work (a) The City, in its sole and absolute discretion, will determine the location within the City where the completed Work will be installed (the "Installation Site"). The City shall select, obtain, and prepare the Installation Site for the sculpture at the City's expense. The City agrees to consult with the Artist concerning the design and lighting of the Installation Site and the final arrangements for mounting the Work, but the City reserves the right to determine the appropriate handling of such elements in the City's sole and absolute discretion. (b) The Artist will deliver the completed Work to the Installation Site (or an alternative location determined by the City) on or before the Delivery Deadline. Upon delivery, the City shall have the opportunity to make a final inspection of the Work. If, upon making its final inspection of the Work, the City accepts the Work without qualification, the Artist shall be entitled to receive the final installment of the Artist's Fee after invoicing the City for the same in accordance with the terms of Section 2.1. (c) After delivery of the Work by the Artist and final acceptance of the Work by the City, the City shall provide the workers, equipment, and materials the City deems necessary to install the Work at the Installation Site, and the Artist shall be available to supervise and advise in that operation. In addition, the Artist shall be present for any reasonably scheduled dedication ceremonies following installation. (d) Upon or before delivery of the Work, the Artist shall provide the City with written instructions for maintenance of the Work. 2 ARTICLE 2 — ARTIST'S COMPENSATION 2.1 Payment and Transfer of Ownership (a) As compensation for performance of all his obligations under this Agreement, the City shall pay the Artist the total sum of $240,000, in U.S. dollars (the "Artist's Fee"), as follows, provided there exists no material violation or breach of the terms of this Agreement at the time payment is due: (i) The Artist will be entitled to the first installment of the Artist's Fee in the amount of $24,000.00 promptly following the Effective Date of this Agreement. (ii) The Artist will be entitled to the second installment of the Artist's Fee in the amount of $72,000.00)upon approval by the City of the completed maquette. (iii) The Artist will be entitled to the third installment of the Artist's Fee in the amount of $72,000.00 upon approval by the City of the completed enlargement. (iv) The Artist will be entitled to the final installment of the Artist's Fee in the amount of $72,000.00 upon delivery by the Artist and acceptance by the City of the completed Work in accordance with the terms of Section 1.3. The Artist shall present an invoice to the City for each of the foregoing installment payments, and, provided there exists no material violation or breach of the terms of this Agreement, the City agrees to pay the same to the Artist within a reasonable time as permitted by the City's ordinary payment mechanisms, but in any event within thirty calendar days of receipt of the invoice. (b) The City shall provide complete remittance of each payment by means that do not accrue fees to be borne by the Artist. (c) Upon the Artist's receipt of the entire amount of the Artist's Fee, all rights, title, and ownership of the Work shall pass to the City. No further written instrument will be required to effect the conveyance of the Work as stated in this Agreement, but the Artist agrees to provide any further assurances or written instruments concerning the conveyance of the Work that the City may request from time to time. ARTICLE 3 — RISK OF LOSS 3.1 The Artist assumes all risks of loss, damage, or injury to the maquette, the enlargement, the Work, and any other materials or work product associated with the Artist's performance of his obligations under this Agreement prior to delivery of the Work to the City in accordance with Section 1.3. The Artist's liability to the City under this Section 3.1 shall not exceed the total amount of the installments of the Artist's Fee paid by the City to the Artist. AMA 3.2 Upon delivery of the Work to the City in accordance with Section 1.3, the City shall assume all risks of loss, damage, or injury to the Work, including liability arising from the City's installation and keeping of the Work on the Installation Site. Notwithstanding the foregoing sentence, the Artist will indemnify the City for any liability arising out of any breach of the Artist's warranty of materials and workmanship under Section 4.3 during .the term of said warranty. 3.3 Notwithstanding Sections 3.1 and 3.2, in the event the Artist re -takes possession of the Work at any time after delivery, then the Artist will again bear all risks of loss, damage, or injury to the Work while it remains in the Artist's possession. ARTICLE 4 — WARRANTIES 4.1 The Artist warrants that the full-size sculpture shall be a unique and only casting of the Work, unless further casts are agreed upon in writing by both the City and the Artist (or the Artist's Representative) in accordance with Section 5.1. 4.2 The Artist warrants that the Work will be his own artistic product. 4.3 The Artist warrants that, for a period of one year after the City's unqualified acceptance of the Work in accordance with Section 1.3(b), the Work shall be free of defects in materials and workmanship. The Artist will correct, at the Artist's expense, any defect that arises during such period regardless of when the defect is discovered or reported to the Artist. 4.4 Because bronze works placed outdoors undergo natural changes in color, the artist shall not be responsible for such changes in color to the Work, nor for changes consequent to the City's failure to follow the written instructions for maintenance of the Work provided by the Artist. Should color changes which occur within the warranty period be the result of a faulty patina and/or final protective coating, the Artist shall remedy such defects. ARTICLE 5 — REPRODUCTION. ALTERATION: ATTRIBUTION• INTELLECTUAL PROPERTY RIGHTS 5.1 Reproductions of the Work (a) The Artist reserves to right the have one cast of the maquette made for the Artist's personal collection. If any further casts at the maquette size are desired by anyone, they may be cast only upon written agreement of the City and the Artist or the Artist's Representative. (b) Any other reproductions of the Work at any size may be made only upon written agreement of the City and the Artist or the Artist's Representative. (c) Notwithstanding the rights reserved by the Artist under Section 5.4, the City may publish photographs of the Work without further approval from the Artist. Any non - photographic visual representation of the Work intended for publication or distribution by the 4 City must be approved by the Artist or the Artist's Representative, which approval the Artist, or the Artist's Representative, will not unreasonably withhold. 5.2 Alterations to the Work (a) If at any time the Work requires repair or restoration, the City agrees to consult with the Artist concerning the need for and the appropriate handling of any repair or restoration, but the City reserves the right to carry out such repair or restoration in the City's sole and absolute discretion. If the Artist is deceased or incapacitated, the City may proceed with any repairs or restoration without consultation, so long as such repairs or restoration do not affect the artistic integrity of the Work. (b) The Work may not be significantly altered or destroyed without prior written consent from the Artist or the Artist's Representative. Notwithstanding the rights reserved by the Artist under Section 5.4, the City will be entitled to relocate the Work at any time and to any new location, as determined in the City's sole discretion, without the consent of the Artist or the Artist's Representative. Provided the Work will be otherwise unchanged, such relocation of the Work will not be deemed to be an alteration of the Work requiring the consent of the Artist or the Artist's Representative. 5.3 Attribution (a) All reproductions of the Work produced by the City shall attribute the Work to "Tuck Langland" wherever reasonable to do so. (b) The City shall place a sign on the Installation Site stating the name of the Artist ("Tuck Langland"), the material of the Work ("bronze"), the date of dedication, and, the title of the Work, as such title may be determined in the City's sole discretion before or after installation. The Artist shall be given reasonable opportunity to review the final text and layout of the sign before its installation in order to determine that it is correct and complies with this provision. Variances from this provision may be approved by the Artist or his representative. 5.4 Intellectual Property Rights (a) All studies or models created by the Artist in the course of performing under this Agreement are not part of the Work, and shall remain the property of the Artist. (b) The Copyright for the Work shall remain with the Artist, and the Artist retains all rights afforded to the Artist under Title 17 of the U.S. Code, including the Visual Artists Rights Act of 1990 (Title 17 U.S. Code § 101 et seq.), unless otherwise provided in this Agreement. ARTICLE 6 — THE ARTIST AS INDEPENDENT CONTRACTOR 6.1 The Artist shall perform all work under this Agreement as an independent contractor and not as an agent or employee of the City. The Artist shall not be supervised in his work by any employee of the City. 5 ARTICLE 7 — INDEMNIFICATION 7.1 The City shall assume responsibility for identifying and obtaining all permissions the City determines to be necessary for the artistic use of any imagery represented in the Work. The Artist shall cooperate with the City in this endeavor. 7.2 The City shall indemnify the Artist from all liability, including any and all legal fees and associated costs, in any suit that may occur concerning infringement of copyright of any imagery represented in the Work. The Artist shall cooperate with the City in any defense that may be necessary. ARTICLE 8 — DEFAULT AND REMEDIES 8.1 Each Parry agrees to abide by the terms of this Agreement in good faith. If either Party to this Agreement fails to fulfill or otherwise violates, any of the covenants, agreements, or terms material to this Agreement, the other Party shall have the right to give written notice of the failure to the defaulting Party, specifying the nature of the failure and the manner in which it can be cured. The defaulting Party shall have thirty days after receipt of the notice to cure the failure. If the failure is not cured within such period, the non -defaulting Party may terminate this Agreement, commence legal proceedings, including an action for specific performance, or pursue any other remedy available at law or in equity. ARTICLE 9 — MISCELLANEOUS PROVISIONS 9.1 This Agreement embodies the entire agreement between the Parties and supersedes all prior discussions, understandings, or agreements, whether written or oral, between the Parties concerning the subject matter of this Agreement. 9.2 No changes to this Agreement can be made except by agreement of both Parties in writing. 9.3 Each Party shall execute and deliver to the other Party all such further instruments and documents as may be reasonably necessary to accomplish the objectives contemplated by this Agreement and to provide and secure to the other Party the full and complete enjoyment of its rights and privileges hereunder. 9.4 This Agreement shall be interpreted and enforced according to the laws of the State of Indiana. 9.5 Any legal action related to this Agreement will be commenced in the courts of St. Joseph County, Indiana, 9.6 In the event of any litigation, mediation, or arbitration between the Parties regarding an alleged breach of this Agreement, none of the Parties shall be entitled to any award of attorney's fees. Ot 9.7 If any aspect of this Agreement shall be declared unenforceable, the remainder of the Agreement shall remain in force. 9.8 All notices required or allowed by this Agreement shall be delivered by email, which notice will be effective upon the date the recipient confirms receipt by a response email to the sender, or by U.S. mail, addressed to the City at its address stated above (with a copy to South Bend Legal Department, 1200 S. County -City Building, 227 W. Jefferson Blvd., South Bend, IN 46601, Attn: Corporation Counsel), or to the Artist at his address stated above. Either Party may, by written notice, modify its address for future notices. 9.9 In the event of the Artist's incapacitation or death, this Agreement may be enforced by the Artist's Representative, subject to the limitation stated in Section 10.1. 9.10 Both Parties having participated fully and equally in the negotiation and preparation of this Agreement, this Agreement shall not be more strictly construed, nor shall any ambiguities in this Agreement be presumptively resolved, against either Party. 9.11 The Artist agrees and acknowledges that he has read and understands this Agreement, is entering into it freely and voluntarily, and has had ample opportunity to seek counsel prior to entering into this Agreement. 9.12 This Agreement may be separately executed in counterparts by the City and the Artist and the same, when taken together, will be regarded as one original Agreement. 9.13 Time is of the essence of this Agreement. ARTICLE 10 — PARTIES' REPRESENTATIVES 10.1 As used in this Agreement, the term "Artist's Representative" means the one person legally authorized to act on behalf of the Artist with respect to the Work in the event of his incapacitation or death, as such person is determined in accordance with the Artist's testamentary document(s) and/or by a court of law of competent jurisdiction under applicable laws. In no event will the City be responsible for determining or identifying the Artist's Representative. Notwithstanding anything in this Agreement to the contrary, upon the fiftieth anniversary of the Effective Date of this Agreement, no person will continue to act as the Artist's Representative under this Agreement or otherwise have authority to make any determination or exercise any right committed to the Artist's Representative under this Agreement. 10.2 The City's point of contact for this Agreement and for all matters related to the Work is Jitin Kain, Deputy Director of the South Bend Department of Public Works. [Signature page follows.] 7 OC IN WITNESS WHEREOF, the City and the Artist have signed this Art Work Commissioning Agreement to be effective as of the Effective Date stated above. CITY OF SOUTH BEND BOARD OF PUBLIC WORKS 4 Gary Gilot, resident Therese Doran, Member U Elizabeth Maradik, Member James Mueller, Member David Relos, Member ATT ST: inda Martin, Clerk Date: ARTIST Harold R. "Tuck41�,an nd Date: 1500.0000032 55254999.004 Date 8/3/16 BPW Date 8/9/16 BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Department Phone Public Works 235-5835 Name Jitin Kain o Legal ® Attorney Name Ben Dougherty E ° M -a Controller review is required for all Contracts $5,000.00 or more $ o Controller ❑ and greater than one year in length per the City Purchasing 0- m Policy co Purchasing ❑ ChPrk tha Annrnnrinto Ifcm Time _ Rn n(rod { , All 0.,1. ; ® ❑ Agreement Claim ❑ Contract ❑ Proposal ❑ Addendum ❑ Bid Opening ❑ Bid Award ❑ Req. to Advertise ❑Title Sheet Quote Openin ❑ Quote Award ❑ Ch Order No. ❑ C/O & PCA No. PCA ❑ Ease./Encroach. ❑ Traffic Control ❑ Resolution ❑ Other: ZlJf I I I I tSd■ rill lT i4Sl . n or Vendor Name Tuck Langland ndor ® Yes ❑ No ❑ If Yes, Approved b Purchasin BE Contractor ❑ MBE ❑ WBE Name Fr. Hesburgh & Dr. King Monument Number Source lPurpose/DpescriptionA Private Donations t No. t $ f Contract /Description Agreement commissioning the artwork to create a lifesize monument of Fr. Hesburgh and Dr. Kino rnr (:mmnnn r lrrloro n..n. ❑ ❑ Increase Decrease $ $ ount $ cent of Change: WNo. % t $ t of Chan e: % vispersai Hner Hpprovai Copy Original ❑ ® Linda Martin ® ❑ in Kain