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HomeMy WebLinkAbout24 - Construction Agreements - Matt Babcock, Babcock Arts LLC - Lynx Caeruleum Page 1 CITY OF BOZEMAN PERCENT FOR ART AGREEMENT THIS AGREEMENT is made and entered into this ____ day of __________, 2024 by and between the City of Bozeman, Montana, a self-governing municipal corporation operating pursuant to its Charter and the laws of the State of Montana, located at 121 N. Rouse Ave., Bozeman, MT 59771 (“City”), and Babcock Artworks LLC located at 10748 Dayton Ave. N Seattle, WA 98133 (“Artist”). The City and Artist may be collectively referred to as the “Parties” in this Agreement. In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: This contract is agreed to pursuant to the terms outlined in Bozeman City Ordinance 2056, which established the “Percent for Art Program” in the City. City agrees to enter into this agreement with Artist to install a public art exhibit (“Artwork”), titled LYNX CAERULEUM, located at Fire Station No. 2 at 575 West Kagy Boulevard, Bozeman, MT, a City property. Such art exhibit is described in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof. 2. Scope of Services: Artist will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, this Agreement governs. Artwork will be specifically chosen for each project based on selection criteria developed by the city manager or their designee, working with city staff to analyze and select appropriate locations and form. 3. Payment: City agrees to pay Artist $68,972.00, for the production and installation of the Artwork. All proprietary rights in and to the Artwork will be transferred to the City upon Artist’s installation of the Artwork, and City’s acceptance of such installation. 4. Artist Representations a. Artist represents and warrants that: i. The Artwork is an original Artwork by the Artist; ii. The Artist is the legal owner of the Artwork; iii. The Artwork does not infringe on any existing copyright; iv. The Artist has not entered into any other assignments, transfers, licenses, contracts, or mutual understandings that conflict with the terms and obligations of this Agreement; and v. There are no copyright infringement claims currently pending or threatened, nor does the Artist have any reason to believe that any copyright claims will be brought or threatened in the future. DocuSign Envelope ID: B8415223-BFA7-40B2-8A5D-EE9D7193A064 April2nd Page 2 b. Artist has familiarized itself with the nature and extent of this Agreement, Ordinance 2056 and with all other local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect Artist’s performance under this Agreement. c. Artist represents and warrants to City that it has the experience and ability to perform its obligations under this Agreement; that it will perform said obligations in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary for Artist to meet this warranty. 5. Permits and Compliance with Laws. Artist will obtain, in a timely manner, all required permits, licenses and approvals, and will meet all requirements of all local, state and federal laws, rules and regulations which must be obtained or met in connection with the Artwork. 6. Title of Ownership. The City shall be the legal owner of the Artwork. Artist agrees to transfer title of ownership of the Artwork to the City upon the completion of its installation, and City’s acceptance of such installation. Artist warrants that it has the legal right to transfer the legal title of ownership to the City. 7. Installation of the Artwork. Artist, in consultation with the City, will arrange for the preparation and installation of the Artwork on or before August 23rd, 2024. Once installed, the City may repair, remove, or un-install the Artwork at any time. 8. Maintenance, Repairs, and Alterations. The City recognizes that maintenance of the Artwork may be necessary. Upon transfer of the title, the City retains full discretion and responsibility to maintain and protect the Artwork. In particular, the City has an interest in ensuring public safety and the structural safety of the space surrounding the Artwork. The City retains the sole right to determine whether, when, and to what extent any repairs to the Artwork will occur. The City is not obligated to provide the Artist notice before undertaking any repairs or modifications to the Artwork. However, the City shall endeavor to notify the Artist of any proposed alteration of the Artwork. Artist is responsible for maintaining a current contact person and contact information to receive such notice. The City is under no obligation to provide notice to the Artist if the Artist fails to maintain such contact information with the City. DocuSign Envelope ID: B8415223-BFA7-40B2-8A5D-EE9D7193A064 Page 3 Artist agrees to indemnify, defend, and hold harmless the City against any and all liability, damage, loss, or expense, including reasonable attorneys’ fees and expenses of litigation, incurred by the City for any and all claims raised under the Visual Artists Rights Act. Should the City determine that the decommissioning of the Artwork is necessary, Artist shall have a right of first offer to negotiate with the City to reclaim physical possession of the Artwork. 9. Publicity. The Artist will coordinate with the City on publicity of the Artwork. Publicity includes, but is not limited to, any interviews, flyers, brochures, mailings, advertisement, emails social media posts, blog posts, or verbal communications of any type, either live or pre-recorded. City will make reasonable efforts to credit Artist in any publicity of Artwork, images of Artwork, or authorized reproductions. 10. Independent Contractor Status. The Parties agree that Artist, its agents, employees, contractors, or subcontractors, are independent contractors for purposes of this Agreement and are not to be considered employees or agents of the City for any purpose. Artist and its agents, employees, contractors, or subcontractors, are not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Artist, its agents, employees, contractors, or subcontractors, are not authorized to represent the City or otherwise bind the City in any way. Artist shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Artist’s business, except for those members who are exempted by law. Artist shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. 11. Default and Termination. If Artist fails to comply with any condition of this Agreement at the time or in the manner provided for, the City may terminate this Agreement if the default is not cured within fifteen (15) days after written notice is provided to Artist. The notice will set forth the items to be cured. 12. Limitation on Artist’s Damages; Time for Asserting Claim DocuSign Envelope ID: B8415223-BFA7-40B2-8A5D-EE9D7193A064 Page 4 a. In the event of a claim for damages by Artist under this Agreement, Artist’s damages shall be limited to contract damages and Artist hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Artist wants to assert a claim for damages of any kind or nature, Artist must first provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within ninety (90) days of the facts and circumstances giving rise to the claim. In the event Artist fails to provide such notice, Artist shall waive all rights to assert such claim. 13. Representatives a. City’s Representative. The City’s Representatives for the purpose of this Agreement shall be Max Ziegler, Facilities Project Coordinator or such other individual as City may designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission must be directed to the City’s Representatives and approvals or authorizations will be issued only by such Representatives; provided, however, that in exigent circumstances when City’s Representatives are not available, Artist may direct its communication or submission to other designated City personnel or agents and may receive approvals or authorization from such persons. b. Artist’s Representative. Artist’s Representative for the purpose of this Agreement shall be Matt Babcock or such other individual as Artist designates in writing. Whenever direction to or communication with Artist is required by this Agreement, such direction or communication must be directed to Artist’s Representative; provided, however, that in exigent circumstances when Artist’s Representative is not available, City may direct its direction or communication to other designated Artist personnel or agents. 14. Indemnity/Waiver of Claims/Insurance. The Artist will bear all risk of loss and damage to the Artwork until title transfers to the City, after installation and upon acceptance by the City. To the fullest extent permitted by law, Artist agrees to defend, indemnify and hold the City and its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) harmless against all third party claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, which arise out of, relate to or result from Artist’s (i) negligence, or (ii) willful or reckless misconduct or any claims arising under U.S. Copyright law and the Visual Artists Rights Act . DocuSign Envelope ID: B8415223-BFA7-40B2-8A5D-EE9D7193A064 Page 5 Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s) which would otherwise exist as to such indemnitee(s). Artist’s indemnification obligations under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should any indemnitee described herein be required to bring an action against Artist to assert its right to defense or indemnification under this Agreement or under Artist’s applicable insurance policies required below the indemnitee shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines Artist was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. In the event of an action filed against City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Artist also waives any and all claims and recourse against the City or its officers, agents or employees, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement. In addition to and independent from the above, Artist shall at Artist’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by Artist in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by Artist in this Section unless and to the extent coverage for such liability is not reasonably available. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City and Artist shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate DocuSign Envelope ID: B8415223-BFA7-40B2-8A5D-EE9D7193A064 Page 6 This section shall be read in conjunction with the indemnification provisions detailed in this Agreement. 15. Attorney’s Fees and Costs. In the event it becomes necessary for a party to this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing party shall be entitled to reasonable attorney’s fees and costs, including fees, salary, and costs of in- house counsel to include City Attorney. 16. Integration and Modification. This document contains the entire agreement between the parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Agreement may be considered valid or binding. This Agreement may not be modified except by written agreement signed by both parties. 17. Dispute Resolution a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 18. No Assignment. Artist may not subcontract or assign Artist’s rights without the prior written consent of City. 19. No Third Party Beneficiary. The terms and provisions of this Agreement are intended solely for the benefit of each party and their respective successors and assigns. It is not the parties’ intent to confer third party beneficiary rights upon any other person or entity. 20. Choice of Law. This Agreement shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 21. Non-Waiver. A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce DocuSign Envelope ID: B8415223-BFA7-40B2-8A5D-EE9D7193A064 Page 7 such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 22. Severability. If any portion of this Agreement is held to be void or unenforceable, the balance of the Agreement shall continue in effect. 23. Counterparts. This Agreement may be executed in counterparts, which together constitute one instrument. 24. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year indicated below. _______________________ Date: _____________ City Manager City of Bozeman _______________________ Date: _____________ Matt Babcock Babcock Artworks LLC Approved as to form: _______________________ Date: _____________ Greg Sullivan, City Attorney City of Bozeman DocuSign Envelope ID: B8415223-BFA7-40B2-8A5D-EE9D7193A064 4/3/2024 4/3/2024 4/3/2024 DocuSign Envelope ID: B8415223-BFA7-40B2-8A5D-EE9D7193A064 EXHIBIT A DocuSign Envelope ID: B8415223-BFA7-40B2-8A5D-EE9D7193A064 Lynx Caeruleum Exhibit A scope of work and payment schedule Artist to provide: - Consulting with City on design and orientation of pedestal. - Consulting with City on sculpture lighting. - Fabrication, delivery, and installation of powder coated aluminum sculpture per attached drawings. Color of sculpture to be determined in consultation with City. Installation hardware and anchors to be specified and provided by Artist. All exposed hardware to be stainless steel. - Material and finish specifications and maintenance recommendations. City to provide: - Stone or concrete pedestal. Design, specifications, and orientation of pedestal to be approved by Artist. - Engineering design of pedestal and subgrade as required. - Sculpture lighting to include 2 fixtures and associated electrical work. Specifications and locations of fixtures to be approved by Artist. City to pay Artist according to the following schedule, upon receipt of Artist's invoices: - 33% of total compensation upon execution of contract - 33% of total compensation when fabrication is 50% complete. Artist will provide photographs of completed work to document 50% completion. - 34% of total compensation upon installation of artwork and submittal of material and finish specifications to City. DocuSign Envelope ID: B8415223-BFA7-40B2-8A5D-EE9D7193A064 DocuSign Envelope ID: B8415223-BFA7-40B2-8A5D-EE9D7193A064 DocuSign Envelope ID: B8415223-BFA7-40B2-8A5D-EE9D7193A064