Loading...
HomeMy WebLinkAbout6C(9) Oliver Plow Memorial Sculpture Agreement(r C ( (�) • r a n d u m i n__ Community & Economic Development 1200 County -City Building, 227 West Jefferson, South Bend, Indiana 46601 -1830 Phone 574/235 -9371 Fax 574/235 -9021 To: Redevelopment Commission From: Bill Schalliol, Economic Development Planner Subject: Oliver Plow Memorial Sculpture Agreement Date: October 28, 2010 Attached to this memo is Oliver Plow Memorial Sculpture Agreement between the Redevelopment Commission and Tuck Langland. Mr. Langland is designing and developing a sculpture for the Oliver Plow Memorial which is being developed in the Oliver Industrial Park. The sculpture will feature a sculpture of James Oliver and an Oliver Plow. The Commission previously took action on the approval of an agreement with Mr. Langland at its meeting on August 20, 2010, but the approval was subject to the preparation of proper legal agreement. The attached is the agreement and staff would request Commission approval. What We Do Today Makes A Difference! OLIVER PLOW MEMORIAL SCULPTURE AGREEMENT Ir This Agreement is made effective then day of G'i , 2010, by and between the South Bend Department Redevelopment, acting by and through its Redevelopment Commission, having its offices at 1200 County -City Building, 227 W. Jefferson Blvd., South Bend, Indiana 46601 (the "City ") and TUCK LANGLAND ( "Sculptor"), a resident of St. Joseph County, Indiana. WITNESSETH WHEREAS, the City desires to retain the services of Sculptor specifically to create a bronze memorial sculpture of James Oliver and plow (the "Oliver Plow Memorial ") for display at or near the former Oliver Plow site (the "Display Site") in the City of South Bend; and WHEREAS, the Sculptor has agreed to sculpt and cast the desired Oliver Plow Memorial. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, the parties covenant and agree as follows: Section 1. Services. The Sculptor agrees to sculpt, cast and deliver a silicon bronze memorial sculpture in accordance with the "Concept for Oliver Plow Memorial" (attached hereto as "Exhibit A7). The schedule shall be as follows: October 15, 2010 Agreement execution January 15, 2011 Inspect the model in clay May 15, 2011 Approval of the full size sculptures in clay October 15, 2011 Sculptures will be delivered (contingent upon the foundry's schedule) Section 2. Consideration. A. Fees. The City agrees to pay Sculptor the sum of One Hundred Thirty Five Thousand Dollars ($135,000.00) for artistic services rendered under Section 1 of this Agreement. 2. Sculptor shall submit a request for payment for artistic services rendered upon the following: a. Forty Five Thousand Dollars ($45,000.00) at the time of execution of this Agreement; - 1 - 0 b. Forty Five Thousand Dollars ($45,000.00) at the time when the figure and the plow sculptures have been completed in clay and approved by the City; and c. Forty Five Thousand Dollars (545,000.00) at the time of delivery to the Delivery Site of the finished Oliver Plow Memorial. 3. The City shall pay each request to the Sculptor within thirty (30) days after receipt thereof. B. Benefits. As Sculptor will be working as an independent contractor, as provided hereinafter, the Sculptor shall not be entitled to any benefits or privileges, including without limitation social security, unemployment, medical or pension payments, made available to employees of the City. C. Ownership of Artistic Product. Upon completion of the Oliver Plow Memorial, delivery of same to the display site and final payment therefore, the Oliver Plow Memorial shall become the property of the City. Section 3. Warranties and Representations. A. The City warrants and represents to Sculptor that it has the right and authority to enter into this Agreement and that this Agreement does not conflict with any other agreement or obligation of the City. B. The Sculptor warrants and represents to the City that he has the right and authority to enter into this Agreement and to provide the City with the services described in Section 1, and that this Agreement does not conflict with any other agreement or obligation of the Sculptor. Section 4. Reserved. Section 5. Term; Termination. A. The term of this Agreement shall commence upon execution by the parties and shall terminate upon delivery and final payment, unless otherwise terminated as provided in Section 5B. B. This Agreement is in effect for the period provided for herein unless terminated by either party, giving 60 days termination notice in writing in compliance with Section 9 of this agreement. C. If either party commits any material breach of any covenant contained herein and fails to remedy any such default or material breach within sixty (60) days after written notice thereof by the other party, the other party may, at its option, terminate this Agreement upon giving written notice of termination to the breaching party. - 2 - W. Section 6. Assignment. This Agreement is not assignable by either party without the prior written consent of the other party. Section 7. Independent Contractors. The Sculptor shall perform all services under this Agreement as an "independent contractor" and not as an employee or agent of the City. The Sculptor shall not act as the City's agent. and is not authorized to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the City, or to bind the City in any manner Section 8. Miscellaneous. This Agreement shall be construed in accordance with the laws of the State of Indiana. If any provisions of this Agreement are or shall come into conflict with the laws or regulations of any jurisdiction or any governmental entity having jurisdiction over the parties or this contract, those provisions shall be deemed automatically deleted, if such deletion is allowed by relevant law, and the remaining terms and conditions of this Agreement shall remain in full force and effect. If such a deletion is not so allowed or if such a deletion leaves terms thereby made clearly illogical or inappropriate in effect, the parties agree to substitute new terms as similar in effect to the present terns of this Agreement as may be allowed under the applicable laws and regulations of the governmental entity involved. Section 9. Notices. A. All notices or other communications which are required or permitted under the terms of this Agreement shall be sufficient if delivered personally, by registered or certified mail, return receipt requested, or by generally recognized, prepaid, overnight air courier services, to the address and individual set forth below. All such notices to either party shall be deemed to have been provided when delivered, if delivered personally, three (3) days after mailed, if sent by registered or certified mail, or the next business day, if sent by generally recognized, prepaid, overnight air courier services. B. To the City: City of South Bend, Indiana Department of Community and Economic Development Attn: Jeffrey V. Gibney Suite 1200 S County -City Building 227 West Jefferson Blvd. South Bend, Indiana 46601 - 3 - R V_ T ,Vith a Copy to: City Attorney City of South Bend, Indiana Legal Department 1400 County -City Building 227 West Jefferson Blvd. South Bend, Indiana 46601 C. To Sculptor: Tuck Langland 12632 Anderson Road Granger, IN 46530 Section 10. Integration. This Agreement constitutes the full understanding between the parties with reference to the subject matter hereof, and no statements or agreements, whether oral or written, made prior to or at the signing hereof, shall vary or modify the written terms of this Agreement. Neither party shall claim any amendment, modification, or release from any provisions of this Agreement by mutual agreement, acknowledgement or otherwise, unless such mutual agreement is in writing, signed by the other party, and specifically states that it is an amendment to this Agreement. Section 11. Reserved. Section 12. Reserved. Section 13. Changes in Scope of Services. The Sculptor understands and agrees that he shall not commence any additional work or change the scope of the services provided unless authorized in writing by the City. No claim for additional compensation shall be made by the Sculptor in the absence of a prior written approval signed by the City. Section 14. Compliance with Laws. A. The Sculptor shall comply with all applicable federal, state and local laws, rules, regulations and ordinances, and all provisions required thereby are hereby incorporated herein by reference. The enactment of any state or federal statute or the promulgation of any rules or regulation subsequent to execution of this Agreement shall be reviewed by the City and the Sculptor to determine whether the provisions of this Agreement shall require formal modification. B. The Sculptor warrants that he and his subcontractors, if any, shall obtain and maintain all required permits, licenses, registrations and approvals, as well as comply with all - 4 - *K health, safety, and environmental statutes. rules or regulations in the performance of the Services. C. The Sculptor understands and acknowledges that failure to do so shall constitute a material breach of this Agreement and shall be grounds for immediate termination of the Agreement and may result in denial of further work with the City. Section 15. Condition of Payment. The City shall not be required to pay for Services that are inconsistent with or in violation of this Agreement nor for any Services performed in violation of federal, state or local statute, ordinance, rule or regulation. Section 16. Reserved. Section 17. Reserved. Section 18. Drug -Free Workplace. The Sculptor hereby agrees to make a good faith effort to provide and maintain a drug -free workplace. The Sculptor will give written notice to the City within ten (10) days after receiving actual notice that the Sculptor or an employee of the Sculptor within the State of Indiana has been convicted of a criminal drug violation occurring in the workplace. Section 19. Relationship /Independent Contractor. A. Both parties, in the performance of this Agreement, shall act in an individual capacity and not as agents, employees, partners, joint venturers or associates of one another. The employee(s) or agent(s) of one party shall not be deemed or construed to be the employee(s) or agent(s) of the other party for any purpose whatsoever. Neither party will assume liability for any injury (including death) to any person(s), or damage to any property, arising out of the acts or omissions of the agents, employees or subcontractors of the other party. B. The Sculptor is solely responsible for compliance with federal, state and local laws and regulations relating to taxes and social security payments that may be required to be made in connection with the compensation provided under this Agreement. The City, however, may file informational returns with the United States Internal Revenue Service or similar state agency regarding payment made to the Sculptor in accordance with this Agreement under conditions imposed by federal, state or local laws applicable to such payment. The City shall provide IRS Form 1099 if applicable. Section 20. Reserved. wilk - 5 - Section 21. Indemnification. The Sculptor hereby agrees to defend, indemnify, and hold harmless the City, its officials, directors, employees, and agents from any and all claims of any nature which arise from the performance by the Sculptor under this Agreement and from all costs and attorney fees in connection therewith, excepting for claims arising out of the negligence of the City, its officials, directors, employees, and agents. The obligations of the Sculptor under this Section shall survive the termination or expiration of this Agreement. Section 22. Equal Opportunity. The Sculptor shall comply with federal, state and local law in its hiring and employment practices and policies for any activity covered by this Agreement. Section 23. Force Majeure. In the event that either party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of injury, disability, natural disaster or decrees of governmental bodies not the fault of the affected party ( "Force Majeure Event "), the party who has been so affected shall immediately give notice to the other party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall immediately be suspended. If the period of non - performance exceeds thirty (30) calendar days from receipt of notice of the Force Majeure Event, the party whose ability to perform may terminate this Agreement by giving written notice to the other party. Section 24. Reserved. Section 25. Counterparts. This Agreement may be executed in counterparts, all of which shall be deemed originals. Section 26. Non - Collusion and Acceptance. The undersigned attests, subject to the penalties for perjury, that he is the Sculptor, that he has not, nor has any other representative or agent of the Sculptor, directly or indirectly, to the best of the undersigned's knowledge, entered into or offered to enter into any combination, collusion or agreement to receive or pay, and that he has not received or paid, any sum of money or other consideration for the execution of this Agreement other than that which appears upon the face of this Agreement. (Signature page.follows) P IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the dates indicated below. CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT inled Vaint an it f South Bend Redevelopment Commission ATTEST: 'ignumri - -- rmice : antr any a c South Bend Redevelopment Commission Date: SCULPTOR Tuck Langland Date: 0 `r -1. t . -2-0 Iv - 7 - CONCEPT FOR OLNER PLOW MEMORIAL At this stage, the concept for the memorial itself is as follows: It is to be a 110% life size figure of James Oliver (about 6 feet 8" tall), dressed in a frock coat of the period. He will likely be simply standing, weight eased a bit onto one foot, one hand grasping a lapel, the other gesturing gently towards his plow, which will be beside him. He will be hatless, to avoid shading the face, and dressed in business clothes of the day — shirt, tie, vest, jacket, and frock coat, long trousers over boots. All this will be derived from whatever photos of him can be located in the archives of the History Museum. The sculpture will, of course, be bronze, in a standard brown patina. Beside him will be a bronze replica of the Number 40 Plow, the most famous of the Oliver plows. This, too, will be 110% actual size, recreated from an original plow, from which I will work- It is anticipated that the plow will sit lengthwise in the designated space, with the figure at the handle end of the plow, as though showing it to a potential customer. The figure can face any direction that should be chosen, either at the building, or away, but it will be placed to relate to the plow. The two pieces will be cast in silicon bronze, a very durable alloy (one used for fittings on ocean going ships, so it is highly corrosion resistant), and both pieces will be welded to stainless steel "sleds" sitting some 6" below the feet. These sleds can be slid around on the base concrete of the site until located in the best positions, then holes are to be drilled into the concrete through holes in the sleds, and anchoring bolts inserted and tightened. After that a second layer of concrete can be poured to reach up to the bottoms of the feet and the plow. In this way the pieces can be arranged prior to final anchoring, and when complete will be very permanent indeed- Tuck Langland Exhibit A "Concept for Oliver Plow Memorial"