HomeMy WebLinkAboutRESOLUTIONS-2009-059-R-097i 16/2009
• 59-It-09
A RESOLUTION
Authorizing the City Manager to Sign a
City of Evanston Community Public Art Program Grant Agreement
with Hubertus von der Goltz for Artwork at the Maple Avenue Garage
BE IT RESOLVE® BY THE CITY COUNCIL OF THE CITY OF
EVANSTON, COOK COUNTY, ILLINOIS:
SECTION 1: That the City Manager is hereby authorized and directed to
sign, and the City Clerk hereby authorized and directed to attest on behalf of the City of
Evanston, a Community Public Art Program Grant Agreement with Hubertus von der
Goltz for artwork at the Maple Avenue Garage, a copy of which is attached hereto as
Exhibit A and incorporated herein by reference.
• SECTION 2: That the City Manager er is hereby authorized and directed to
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negotiate any additional terms and conditions of the said Agreement as determined to
be in the best interests of the citizens of Evanston.
SECTION 3: That this Resolution 59-R-09 shall be in full force and effect
from and after the date of its passage and approval in the manner provided by law.
Atte§s f.
r I
dney,reeve, City Clerk
0 Ado pte , 2009
J
Eli eth B. Tisdahl, Mayor
EXHIBIT A
City of Evanston Community Public Art Program Grant Agreement •
with IHubertus von der Goltz for Artwork at the Maple Avenue Garage
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AGREEMENT BETWEEN THE CITY OF EVANSTON AND
• HUBERTUS VON DER GOLTZ
FOR PUBLIC ART AT MAPLE AVENUE GARAGE
THIS AGREEMENT is entered into this 28th day of July, 2009 by and between the City
of Evanston (hereinafter, "City'), an Illinois municipal corporation, 2100 Ridge Avenue,
Evanston, Illinois, and Hubertus von der Goltz (hereinafter "Artist"), an individual,
Dickhardtstrasse 4, 12159, Berlin, Germany.
RECITALS
WHEREAS, the City has implemented a public art program pursuant to Ordinance
112-0-89 by providing a mechanism for funding the acquisition of works of art in public places;
and
WHEREAS, Maple Avenue Garage is an appropriate place for exhibition of public art;
and
WHEREAS, the Artist was selected by the City Council upon recommendations from the
Arts Council and the Public Art Committee to design, execute, fabricate, and install
"Encounter," a sculptural artwork (the "Work") as specified in Attachment A to this document,
• atop the Maple Avenue Garage; and
NOW, THEREFORE, the City and the Artist, in consideration of the mutual covenants
set forth below, hereby agree as follows; having first found the foregoing recitals as fact
AGREEMENT
ARTICLE 1. DESCRIPTION OF WORK:
1.1 The Artist shall design, fabricate and install the following Work of art:
(a) "Encounter," a steel and aluminum sculpture
The Work, presently untitled, is depicted in Attachment A, attached hereto and made
a part hereof.
1.2 The Work is commissioned for placement on top of the central tower of the Maple
Avenue Garage, more particularly described in Attachment A. Artist understands and
agrees that as owner of the Work and the copyright, the City is not required to display
• the Work nor is the City required to display the Work on the Maple Avenue Garage.
ARTICLE 2. STRUCTURAL ENGINEER'S REPORT ("ENGINEER'S REPORT") CONDITION
PRECEDENT: •
At the Artist's sole cost, Artist will present a report acceptable to the City from a licensed
structural engineer acceptable to the City evidencing that the Work can be safely attached and
safely supported on the Maple Avenue Garage during all weather conditions, if applicable. The
City's acceptance of the structural report is a condition precedent to execution of this
Agreement. Artist understands that his/her expenditures for the structured report will not be
reimbursed by the City.
ARTICLE 3. SCOPE OF WORK:
3.1 Scope of Services. The Artist shall perform all services and furnish supplies, material, and
equipment as necessary for the design, execution, fabrication, transportation, and
installation of the Work at the Site, all as described in this Agreement and the Exhibits
hereto, collectively, "the Agreement."
3.2 Artist's Abilities. The Artist represents and warrants that Artist has the ability, skill, and
capability to complete the obligations he/she hereby undertakes and to do so in
accordance with the schedule agreed upon and made a part hereof.
3.3 Meetings.
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(a) The Artist will attend meetings (after signing of this Agreement) at the City's
request with City Officials, Arts Council Members, Staff, community members,
and others regarding the Work. The City will attempt to give Artist ten (10) days
advance notice of said meetings. Expenses incurred by the Artist for these
meetings will not be reimbursable from any City source.
(b) The City shall have the right to make at mutually agreeable times on -site visits to
inspect the Work at intervals it deems appropriate.
3.4 Execution of Work. The Artist's schedule for completion of fabrication and installation of
the Work with associated payments is set forth in Exhibit D, attached hereto and made a
part hereof. After written approval of the Schedule by the City, the Artist shall fabricate,
transport, and cause and supervise installation of the Work in accordance with such
Schedule, except as it may be amended and mutually agreed to from time to time by the
Artist and the City.
3.5 Delivery and Installation. The Artist shall notify the City twenty (20) business days in
advance in writing when fabrication of the Work and any other services to be performed •
prior to shipping are completed. The Work shall not be shipped without the City having
first made an on -site inspection within ten (10) business days after receiving this written
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notification from the Artist to determine whether the Work is in compliance with the
• specifications set forth in Exhibit A. No shipment shall be made until after the City
notifies the Artist in writing that the Work conforms to all specifications applicable to
date, i.e., prior to shipment and installation. In the absence of such approval, the City
shall state the deficiencies in writing and Artist shall promptly correct same. The
completed Work shall be delivered and installed in accordance ,with the Schedule (set
forth in Exhibit C), without interference of the operation of the Maple Avenue Garage or
the businesses adjacent to the site unless approved by the City of Evanston. The City
shall be responsible for all expenses, labor, and equipment to prepare the Site for timely
installation of the Work. The Artist will supervise installation of the Work and will be
on -site during substantially all installation times. Artist will, upon the City's written
request therefore, promptly provide the City with all documentation and information
the City determines appropriate for installation of the Work. Artist is solely responsible
for correcting at Artist's cost any damage to the Work which occurs between shipping
and the completion of installation. The City will waive, or, at its sole cost, obtain, all
required permits.
3.6 Final Acceptance.
(a) "Final Acceptance" is the phase of this Agreement which occurs after installation
of this Work and receipt by City of all documents Artist is required to provide
• and performance of all obligations by Artist. City's approval given as a
condition precedent to shipping of the Work does not obligate City to give final
acceptance. After final acceptance, City shall pay Artist the final installment.
(b) The City shall give written notice to the Artist within five (5) business days of
discovery thereof of any and all Artist's failure(s) to perform under this
Agreement which prevent City's final acceptance of the Work.
(c) The City's final acceptance of the Work, if given, shall be made in writing to the
Artist within ten (10) business days of its decision. Submission to the City of lien
waivers from Artist's subcontractors is a prerequisite to City's final acceptance of
the Work.
3.7 Risk of Loss. The risk of loss or damage to the Work shall be borne by the Artist until
final acceptance by the City, and the Artist shall take such measures as are necessary to
protect the Work from loss or damage until final acceptance. Such measures shall
include, but not be limited to, providing and maintaining insurance as provided for,
infra.
3.8 Title. Title to the Work shall pass to the City upon final acceptance by the City and full
payment to the Artist. In the event of termination of this Agreement by the City for
material breach of its terms by the Artist, the Artist shall retain all rights of ownership of
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the Work and copyright and shall have sole right to complete, exhibit, and sell the Work,
provided that he shall first have made full refund to the City of any monies paid to •
Artist for and in connection with the Work, full refund of all expenditures of any kind
made by the City in enforcing this Agreement, preparing the Site, and full refund of any
and all shipping, storage, and insurance costs and expenses the City may have incurred
in connection with this Agreement or the Work, including payment of all costs and
expenses of the City's removal of the Work from the afore described Site and restoration.
3.9 Material Breach. Shall include, but not be limited 'to, the Artist's failure to fully perform
by the agreed upon time or any extensions thereof except in the event of war or an act of
nature, or failure to maintain directly or indirectly through the date of the City's final
acceptance of the Work all insurance required hereby and to provide satisfactory
evidence of same to the City within one (1) business day of the City's written request to
do so. The City may, but is not required to, provide Artist an opportunity to cure any
failure to observe the insurance requirements of this Agreement. Except as provided
above for insurance requirements, prior to declaring the Artist in default of the terms of
this Agreement, the City shall give Artist written notice of any breach and an
opportunity to cure said breach. The period allowed for cure shall be no greater than
fifteen (15) calendar days. The City, in its sole option, may grant the Artist additional
time to cure.
3.10 Ozvnership of Documents, Models. Upon final acceptance, all preparatory drawings, •
studies, designs, maquettes, and models prepared and submitted under this Agreement
shall become the property of the City, except as may otherwise be agreed to by the Artist
and the City.
3.11 Copyright Ozvnership. The City shall own the copyright to the Work upon full payment
to the Artist as provided in Article 4.
3.12 Alteration of the Work or of the Site. The City has the unconditional right (1) to remove the
Work from public display, (2) to move the Work to another location, (3) to sell, donate,
trade, or exercise any and all other ownership rights over the Work, including but not
limited to the right to not maintain or repair the work or (4) to destroy the Work. If the
City shall at any time decide to destroy the Work, it shall by notice to the Artist offer the
Artist a reasonable opportunity to recover the work at no cost to the Artist, except for an
obligation of the Artist to indemnify and reimburse the City for the amount by which
the cost to the City of such recovery exceeds the costs to the City of the proposed
destruction as determined solely by the City.
(a) The Artist understands and agrees that, as to his or her rights in the Work, the
provisions of this Agreement shall supersede the provisions of the Visual Artists •
Rights Act of 1990 ("VARA"), including but not limited to §106A and §113, as to
the Work, and that execution of this Agreement by the Artist shall constitute a
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waiver by the Artist, as permitted in 17 U.S.C. §106(A)(e), as amended, of any
• and all rights or protections in the Work, and any uses of the Work whatsoever,
set out in or otherwise granted by VARA including but not limited to §106A or
§113, or otherwise in the nature of "Droit Moral" under which artists claim an
interest in their work. The Artist's waived rights as described herein are, insofar
as such rights are transferable, assigned to the City.
(b) Artist understands and agrees that installation, maintenance, and removal of the
Work may subject it to destruction, distortion, mutilation, or other modification.
The Artist hereby, pursuant to VARA 17 USC 106A(e) as it may be amended,
waives any and all rights conferred or ,"Thich may have been conferred by VARA
upon the Artist and/or the Work.
(c) The City agrees that it will not intentionally alter, modify or change the Work,
except as may be incidental to installation, maintenance, and removal of the
work. If the City fails to observe this Subparagraph 3.12. (c), the Artist's sole
remedy will be to dissociate his name from the Work, and the City agrees that it
will no longer use the Artist's name or the name of the Work in connection
therewith. If a plaque is installed identifying the Artist and the Work, as
provided in Article 10.1, it shall be removed at the Artist's option.
3.13 Post/Shipping and Transit. The Artist shall be responsible for the payment of all mailing
or shipping charges for submissions to the City, the costs of transporting the Work to the
site and insuring it, as provided for in this Agreement, until installation is completed
and final acceptance has been given by the City, the costs of removal of the work from
the site if the City refuses final acceptance, and the 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.
ARTICLE 4. PRICE AND PAYMENT SCHEDULE:
As payment for the services of the Artist and the work, subject to the conditions set fort--i herein,
the City shall pay the Artist the total sum of $105,000 as follows:
4.1 $26,250 - One quarter (25%) upon the execution of this agreement.
4.2 $26,250 - One quarter (25%) upon 75 percent of completion, as evidenced by a sworn
written statement from the Artist, in form and content satisfactory to the City.
4.3 $52,500 - Fifty percent (50%) after final acceptance by the City, completion of installation,
• transfer of title to the City and completion of all acts required of Artist by this written
Agreement.
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4.4 All payments to Artist will be mailed to Artist within thirty (30) days of receipt of
invoices from Artist for above referenced amounts, pending City Council approval of •
said payment at a regularly scheduled meeting. A schedule of these meetings and
payment request due dates is attached as Exhibit E.
ARTICLE 5. SALES TAX:
The City's Illinois sales tax exempt number is E 9998-1750-04. The sale to the City is exempt
from Illinois state tax. Any other taxes which may be imposed on the Work, or which Artist
may be subject to as a result of the granting of this Agreement, are the sole responsibility
of Artist.
ARTICLE 6. TIME OF PERFORMANCE:
6.1 Duration. The services required of the Artist as set forth in this Agreement shall be
completed in accordance with the completion schedule of the Work as proposed by the
Artist and approved by the City in Exhibit C, provided that such time limits may be
extended or otherwise modified by mutual written agreement between the Artist and
the City. Notwithstanding provision of this mechanism for extension or other
modification, the City is under no obligation to agree to extension or other modification,
except as provided for in Subparagraph 11.3 as it relates to incapacity of the Artist.
TIME IS OF THE ESSENCE OF THIS AGREEMENT. If Artist fails to fully perform •
all of his obligations under this Agreement by the agreed upon date of completion or
any extensions thereof, Artist will, upon the City's written demand therefore,
promptly refund all monies paid hereunder. Artist will not be entitled to keep any
monies whatsoever for work performed or expenditures made.
6.2 Early Completion of Artist Services. The Artist shall bear any transportation, storage, and
other costs resulting from the completion of his services hereunder prior to the time
provided in the schedule for installation.
ARTICLE 7. WARRANTIES:
7.1 Warranties of Title. The Artist represents and warrants that: (a) prior to final acceptance
by the City, the Artist will have obtained federal copyright protection for the Work;
(b) the Work is solely the result of the artistic effort of the Artist; (c) the Work is unique
and original and does not infringe upon any copyright or trademark; (d) that the Work,
or a duplicate thereof, has not been accepted for sale elsewhere; and (e) prior to final
acceptance by the City, the Work will be free and clear of any liens from any source
whatsoever.
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7.2 Warranties of Quality and Condition.
• (a) The Artist represents and warrants, that: the physical quality of the Work, as
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fabricated and installed, will be as described and depicted in the design accepted
by the City, commensurate with the Artist's reputation and be substantially of
the same physical quality of other public sculpture designed and produced by
the Artist, the Artist not making any warranty as to the artistic merit of the
design; and
(b) The Artist represents and warrants that:
1) the execution and fabrication of the Work will be performed in a
workmanlike manner;
2) the Work, as fabricated and installed, will be free of defects in material
and workmanship, including any defects consisting of "inherent vice" or
qualities which cause or accelerate deterioration of the Work; and
3) reasonable maintenance of the Work will not require procedures
substantially in excess of those described in the maintenance
recommendations to be submitted by the Artist to the City hereunder.
• (c) The Artist shall, at the request of the City, and at no cost to the City, cure
reasonably and promptly the breach of any such warranty which is curable by
the Artist or by his enforcement of any warranties of his vendors and which cure
is consistent with professional conservation standards (including, for example,
cure by means of repair or refabrication of the Work).
(d) Upon request of the City, Artist will assign to the City Artist's vendors'
warranties for products used in the Work. A copy of the warranty(s) is attached
hereto as Exhibit E, and made a part hereof. The Work will be fabricated in
accordance with manufacturer'(s) recommendations. If the manufacturer(s) fail
to honor the warranty by reason of its assignment, City may make a warranty
claim against Artist and Artist must pursue a warranty claim against
manufacturer as though the assignment had not occurred. Artist grants to the
City a lien on any warranty proceeds he receives from the manufacturer(s).
(e) Artist will be solely responsible for all costs incurred by the City or Artist
enforcing the warranty. If requested by the City as a condition to final payment,
Artist will provide City with his written assignment and the receipts from the
• purchase of warranted products.
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(f) The warranties described in this Article 7 shall survive the completion of this
Agreement for a period of five (5) years. If a breach of a warranty under Article 7 •
is not reasonably and promptly curable by the Artist, the Artist is responsible for
reimbursing the City for damages, expenses and loss incurred by the City as a
result of a breach of or inaccuracy in a warranty or representation. The City shall
give notice to the Artist of any observed breach with reasonable promptness.
ARTICLE 8. INSURANCE AND INDEMNITY:
8.1 Artist's Property Insurance. The Artist shall maintain all-risk property insurance
including the risk of earth movement on the Work for its full value, and understands
and agrees that said insurance, and not the City, shall be the source of compensation in
the event of damage to the Work from any cause prior to final acceptance by the City of
the Work.
8.2 Other Insurance. Artist shall, at the City's request, provide other insurance in types and
limits deemed appropriate to the project by the City and including, but not limited to
unemployment compensation, workers compensation, and valuable papers insurance.
8.3 Policy Limits. Artist shall obtain an insurance policy covering the period of this
Agreement, from execution through final acceptance by the City, including coverage of
comprehensive general liability insurance and other appropriate coverage for location of •
the Work on a public property, in the amount of two million dollars ($2,000,000.00) per
occurrence and one million dollars ($1,000,000.00) per person. The City is to be named
as an additional insured on the face of the certificate with an insurance company an A -
rating or better. Any changes or cancellations shall require that the City be notified in
writing at least forty-five (45) days prior to the effective date of the change or
cancellation.
8.4 Commencement of Work/Notice of Cancellation of Insurance. The Artist shall not commence
work herein until Artist has obtained the required insurance and has received written
approval of such insurance by the City's Safety/Risk Management Officer. Artist shall
not allow any subcontractor to commence work without said subcontractor(s) first
complying with this Article 8 in its entirety. The Artist shall furnish a certified copy of
the policy(s) to the City. The policy(s) shall provide, that in the event the insurance
should be changed or cancelled, such change or cancellation shall not be effective until
forty-five (45) days after the City has received written notice from the insurance
company(s). Such notice shall be mailed to the City in care of the Safety/Risk
Management Officer, Law Department, 2100 Ridge Avenue, Evanston, Illinois 60201.
An insurance company having less than an A- Policyholders Rating by the Alfred M.
Best and Company, Inc. will not be considered acceptable. 0
8.5 Indemnity. The Artist shall insure the following indemnity agreement: Artist shall
• indemnify, keep and save harmless the City, its agents, officials and employees, against
all injuries, deaths, loss, damages, claims, patent, trademark, and copyright claims, suits,
liabilities, judgments, costs, and expenses, except those attributable to the negligence of
the City, its officers and employees, which may in anywise accrue against the City in
consequence of the granting of this Agreement or which may in anywise result
therefrom, whether or not it shall be alleged or determined that the act was caused
through negligence or omission of Artist, or Artist employees, of a subcontractor or its
employees, if any, and Artist shall, at Artist own expense, appear, defend and pay all
charges of attorneys and all costs and other expenses arising therefrom or incurred in
connection therewith, and, if any judgment shall be rendered against the City in any
such action, Artist shall at Artist own expense, satisfy, and discharge the same. Artist
expressly understands and agrees that any performance bond or insurance protection
required by this Agreement, or otherwise provided by Artist, shall in no way limit the
responsibility to indemnify, keep and save harmless and defend the City as herein
provided. The insurance policy shall contain this language: "In the event of a conflict
between this language and the language of any other insurance policy, this Indemnity
Language shall control,"
ARTICLE 9. REPRODUCTION RIGHTS:
• 9.1. General. The Artist will obtain and assign all rights in the copyright to the City as a
condition precedent to final acceptance by the City of the Work. The City retains all
rights, including but not limited to, copyrights, under all applicable intellectual property
legislation, and all other rights in and to the Work, except as provided in Article 3.12(c).
In view of the intention that the Work in its final rendition shall be unique, and owned
by the City, the Artist shall not make any additional exact duplicate, two- or three-
dimensional reproductions of the final Work, nor shall the Artist knowingly allow or
cause others to do so except with the prior written permission of the City. The Artist
retains the right to make two-dimensional reproductions of the Work for non-
commercial purposes, including but not limited to, reproductions used in advertising,
brochures, media publicity, and catalogues or other similar publications.
ARTICLE 10. ARTIST'S RIGHTS:
10.1 Identification and Maintenance. The City shall, at its expense, prepare and install at the
Site, at street level, a plaque identifying the Artist, the title of the Work, and the year of
completion. The Artist may submit suggestions to the City for design and content of the
plaque. The City shall maintain the plaque for as long as the Work is displayed.
• 10.2 Repairs and Restoration. The City shall have the sole right to determine when and if, it
will undertake repair, restoration, and/or maintenance of the Work, and if so, the nature
and extent of such repair, restoration, and/or maintenance. The Artist shall be
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reasonably available to consult with the City on maintenance issues and depending on
the extent of the artist's services, may be paid a fee for such services as are agreed to in •
advance by the City and the Artist and set forth in writing. At the City's sole option, the
Artist shall be given the opportunity to make or personally supervise significant repairs
or restorations and shall be paid a reasonable fee for any such services provided that the
City and the Artist shall agree in writing, prior to the commencement of any significant
repairs or restorations, upon the Artist's fee for such services and subject to
appropriation by the City of such fee. Notwithstanding the foregoing, and pursuant to
Article 7 of this Agreement, no fee will be paid to the Artist for any services Artist may
render in connection with curing a breach of warranty. If the City declines to follow the
Artist's recommendations for repair, restoration, or maintenance, the Artist's sole
remedy will be to dissociate Artist name from the Work, and the City agrees that it will
no longer use the Artist's name or the name of the Work in connection therewith. If a
plaque is installed identifying the Artist and the Work, as provided in Article 10.1, it
shall be removed or modified at the Artist's option, with final approval of any
modification to rest with the City.
10.3 Artist's Address. The Artist shall notify the City in writing of change(s) in Artist's
address. The failure to do so, if such failure prevents the City from locating the Artist,
shall be deemed a waiver by the Artist of the right subsequently to enforce those
provisions of this Agreement that require the express approval of the Artist or notice
to Artist. •
10.4 Additional Rights and Remedies. Nothing contained in this Article 10 shall be construed as
a limitation on such other rights and remedies available to the Artist or the City under
the law which may now or in the future be applicable.
10.5 Artist as Independent Contractor. The Artist shall perform all work under this Agreement
as an independent contractor and not as an agent or an employee of the City. The Artist
shall not be supervised by any employee or official of the City nor shall the Artist
exercise supervision over any employee or official of the City.
10.6 Assignment or Transfer of Interest. The Artist shall not assign or otherwise transfer his/her
interest in this Agreement.
10.7 Sicvcontracting by the Artist. The Artist may subcontract portions of the services to be provided
hereunder at the Artist's expense provided that said subcontractors obtain all insurance
required of the Artist under this Agreement and that said subcontracting shall not affect the
design, appearance, visual quality, or overall quality of the Work and shall be carried out
under the personal supervision of the Artist. Artist shall, as a condition precedent to payment
of the final installment pursuant to Article 4, submit a notarized statement to the City listing is
all persons or entities who provided services and/or products to Artist in connection with this
Agreement and shall provide lien waivers from all such persons and entities.
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• 10.8 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 delivery, if delivered personally, or on the fifth (5t"). day after
mailing if sent by registered or certified mail, return receipt requested, first-class postage
prepaid, as set forth below. Faxed communications are a convenience to the parties, and
not a substitute for personal or mailed delivery.
a. if the City, to: Director of Parks, Recreation & Forestry
City of Evanston
2100 Ridge Avenue
Evanston, Illinois 60201
Fax (847) 448-8051
Phone (847) 866-2914
with a copy to: Law Department
City of Evanston
2100 Ridge Avenue
Evanston, Illinois 60201
Fax (847) 448-8093
Phone (847) 866-2937
• b. if the Artist, at the address first above written with a copy to (attorney):
or otherwise by notice served in accordance with this Article.
ARTICLE 11. DEATH OR INCAPACITY OF THE ARTIST:
11.1 The Artist or Representative shall promptly notify the City if Artist becomes ill,
disabled, injured, or otherwise incapacitated (collectively "incapacitated") at any time
between the execution of this Agreement and the date of the final payment due to the
Artist under Article 4.
11.2 If the Artist is incapacitated for fewer than two months, the performance schedules set
forth in Exhibit C (Article 6.1) shall be modified accordingly.
11.3 If the Artist is incapacitated for more than three months, or it is reasonably inferable
from the facts and circumstances that the Artist will be incapacitated for more than two
. months, the City in consultation with the Artist, or Artist representative, shall determine
whether the Artist can complete and supervise the installation of the Work within four
months after Artist becomes incapacitated. Upon written request of the City, the Artist
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shall provide the City with written statements from Artist's physician attesting to
his/her ability or inability to complete the Work within four months of the date of •
notification to the City of his incapacitation. If the Artist cannot complete the Work and
the installation within four months of date of notification to the City by the Artist of his
incapacitation, then the provisions of 11.4 below apply.
11.4 If the Artist dies, and the design of the Work has been completed, this Agreement will be
fulfilled at no additional cost, over the amount set forth in Article 4, by ,
and the Artist shall receive the appropriate credit for the Work. If the design for the
Work has not been completed, the representative of the Artist shall determine whether
the Work and installation can be completed. If the Work and installation cannot be
completed, Artists estate shall refund any monies paid by City to Artist(s) under this
Agreement.
ARTICLE 12. TERMINATION:
If either party to this Agreement shall substantially fail to fulfill in a timely and proper manner,
or otherwise violate, any of the covenants, agreements or stipulations in 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 business (15) days after the receipt of the notice to cure
default. The non -defaulting party may, but is under no obligation whatsoever to do so, give the •
defaulting party one (1) additional period in which to cure the default, notice of which shall be
provided in writing. If the default is not cured, then, at the option of the non -defaulting party,
this Agreement shall terminate. Notwithstanding anything in the foregoing to the contrary,
City may terminate this Agreement without prior notice in the event the City reasonably and
for good and sufficient cause determines that continuation of the Agreement presents an
emergency or threat to life, safety, or welfare. In the event of default by the City, without the
fault of the Artist, the City shall compensate the Artist for all services performed and reasonable
costs incurred under this Agreement by the Artist prior to termination, subject to offset of any
monies which Artist may owe City. In the event of default by the Artist, all finished and
unfinished drawings, sketches, photographs, and other work products prepared and submitted
or prepared for submission by the Artist under this Agreement shall, at the City's option,
become its property, the right to fabricate or execute the Work shall pass to the City, and the
Artist shall assign the copyright, if obtained at the time of default, to the City. If the copyright
has not been obtained at the time of default, Artist shall waive any such rights Artist may have
had in the Work and shall release, indemnify and hold the City harmless from any claims of
copyright infringement. Notwithstanding the previous sentence, the Artist shall not be relieved
of liability to the City for actual damages sustained by the City by virtue of any breach of this
Agreement by the Artist, and the City may withhold payments due to the Artist but not yet
paid to the Artist until such time as the exact amount of such damages due the City from the •
Artist is determined. Artist will promptly, upon demand, return any funds advanced to him by
City but not earned.
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ARTICLE 13. NIUSCELLANEOUS.
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plicable L- P. The la-w of Illinois, including its con-flicts of lai;,i provisions, shall
apply to interpretation and enforcement of this Agreement. Venue shall be within
Cook County, Illinois. The parties waive trial by jury.
13.2 Litigation. In the event of litigation or clairn(s) against the City arisinig out of this
Agreement by anyone other than the Artist, the Artist shall cooperate fully -with-
the City, and the Artist shall provide five (5) days of his time to the City at no
charge. Thereafter, the City -ivU compensate Artist at a mutuafly agreeable rate,
not to exceed (200) per diem.
13.3 Severability. In the event any provision(s) of this Agreement are found by a court
of competent jurisdiction to be in violation of applicable law, provision(s)
unaffected thereby shall be in effect.
13.4 Entire Agreement. This document represents the entire Agreement between the
City and Artist. Any and all prior agreements, undertakings written and oral, are
hereby superseded.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first written above.
CITY:
By:-�
City Manager
F WIVINIM116
Witness Witness
Printed Name of'Witness Printed Name of Witness
Addre&(4f Witness Address W—Wi6ess
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ATTACHMENT A
"ENCOUNTER," A SCULPTURAL ARTWORK
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ATTACHMENT B
.7
DISCLOSURE OF OWNERSHIP INTERESTS
City of Evanston Ordinance 15-0-78 requires all persons (APPLICANT) seeking to do business
with the City to provide the following information with their proposal. Every question must be
answered. If the question is not applicable, answer with "NA".
APPLICANT NAME:
APPLICANT ADDRESS:
TELEPHONE NUMBER:
FAX NUMBER:
CONTACT PERSON
APPLICANT is (Check One) 1. Corporation () 2. Partnership () 3. Sole Owner ( )
4. Association() 5. Other ( )
Please answer the following questions on a separate attached sheet if necessary. •
SECTION I — CORPORATION
1a. Names and addresses of all Officers and Directors of Corporation.
1b. (Answer only if corporation has thirty-three (33) or more shareholders.) Names and
addresses of all those shareholders owning shares equal to or in excess of three percent
(3%) of the proportionate ownership interest and the percentage of shareholder interest.
(Note: Corporations which submit S.E.C. form 10K may substitute that statement for the
material required herein.)
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• 1c. (Answer only if corporation has fewer than thirty-three (33) shareholders.) Names and
addresses of all shareholders and percentage of interest of each herein. (Note:
Corporations which submit S.E.C. form 10K may substitute that statement for the material
requested herein.)
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SECTION 2 — PARTNERSHIP/ASSOCIATION/JOINT VENTURE
2a. The name, address, and percentage of interest of each partner whose interes_s therein,
whether limited or general, is equal to or in excess of three percent (3%).
2b. Associations: The name and address of all officers, directors, and other members with
three percent (3%) or greater interest.
SECTION 3 — TRUSTS
3a. Trust number and institution.
3b. Name and address of trustee or estate administrator.
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3c. Trust or estate beneficiaries: Name, address, and percentage of interest in total entity. •
SECTION 4 — ALL APPLICANTS - ADDITIONAL DISCLOSURE
4a. Specify which, if any, interests disclosed in Section 1, 2, or 3 are being held by an agent or
nominee, and give the name and address of principal.
4b. If any interest named in Section 1,2, or 3 is being held by a "holding" corporation or other
"holding" entity not an individual, state the names and addresses of all parties holding
more than a three percent (3%) interest in that "holding" corporation or entity as required
in 1(a), 1(b), 1(c), 2(a), and 2(b). •
4c. If "constructive control" of any interest named in Sections 1,2, 3, or 4 is held by another
party, give name and address of party with constructive control. ("Constructive control"
refers to control established through voting trusts, proxies, or special terms of venture of
partnership agreements.)
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I have not withheld disclosure of any interest known to me. Information provided is
• accurate and current.
Date
Signature of Person Preparing Statement
Title
ATTEST:
Notary Public (seal)
Corporate Seal
A
ATTACHMENT C
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AFFIDAVIT OF M/W/EBE STATUS
I am of and have authority to
(Title of Affiant) (Name of Firm)
execute this affidavit on behalf of this firm. I do
(Name of Affiant)
hereby certify that:
1. This firm is a: (Check One Only)
Minority Business Enterprise (MBE) (A firm that is at least 51% owned,
managed and controlled by a Minority.)
Women's Business Enterprise (WBE) (A firm that is at least 51% owned,
managed and controlled by a Woman.)
_ Evanston Business Enterprise (EBE) (A firm that is principally located
in Evanston.)
2. COPIES OF ALL MBE, WBE OR DBE CERTIFICATIONS HAVE BEEN ATTACHED. •
3. The following information will be provided upon written request, through the prime
contractor or, if no prime, directly to the City of Evanston
a) actual work performed on any project and the payment thereof;
b) any proposed changes, in the status of the firm which would render this affidavit
null and void; and
c) further verification of the indicated status.
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Please note. the City of Evanston references 49 Code of Federal Regulations Part 26 to evaluate
• compliance with the provisions of this Specification forM/W/EBE Participation.
Signature: Date: 2009
(Signature of Affiant)
Corporate Seal (where appropriate)
This instrument was acknowledged before me on this day of , 2009, by
(Firm Name)
Notary Seal
(Notary Public Signature)
Commission Expires:
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as President (or other authorized officer) of
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E
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