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4.13. SR 05-18-2015 �j Elk = - Request for Action River To Item Number Mayor and City Council 4.13 Agenda Section Meeting Date Prepared by Consent Agenda May 18, 2015 Colleen Eddy, Economic Development Specialist Item Description Reviewed by Public Art Installation Artist Agreement Amanda Othoudt, EDD Reviewed by Cal Portner, City Administrator Action Requested Approve, by motion, the Public Art Installation Artist Agreement. Background/Discussion Earlier tonight, the EDA recommended approval of the Public Art artist agreement,which is the final step in the Public Art Installation Initiative. The agreement between the City of Elk River and the artist was drafted by the city attorney and follows the guidelines reflected in the public art installation request for proposal. Upon final approval, the first payment will be sent to the artist and materials will be ordered. The projected completion and unveiling will be late August. Financial Impact Budgeted item Attachments ■ Agreement P0WIeIa 0 Template Updated 4/14 INAWREJ AGREEMENT THIS AGREEMENT is made on May 18, 2015 between the City of Elk River, a Minnesota Municipal Corporation ( "CITY "), and Carl Zachman ( "ARTIST "). RECITALS I. The ARTIST has submitted a proposal to the CITY to create a sculpture for the City to be installed by the ARTIST at the Elk River Public Library (the "ART WORK "). A copy of the proposal is attached hereto as Exhibit "A" ( "Proposal "). 2. The CITY has accepted the Proposal subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual promises and undertakings contained herein, the parties agree as follows: Article 1. Scone of Services 1.1 General (a) The ARTIST will construct and install the ART WORK in accordance with the Proposal except as modified by the terms of this Agreement. (b) The ARTIST shall perform all services and furnish all supplies, materials, equipment as necessary for the execution, fabrication, transportation, and installation of the ART WORK at the site. (c) The ARTIST shall at all stages of execution, fabrication and installation coordinate its work with the CITY. 1.2 Execution of the Work (a) The ARTIST shall complete the fabrication and full installation of the ART WORK by no later than August 30, 2015. Such schedule may be amended by written agreement between the CITY and the ARTIST. (b) The ARTIST shall complete the fabrication and ensure installation of the ART WORK in conformity with the approved Proposal. (c) Upon installation of the ART WORK, the ARTIST shall provide to the CITY detailed written instructions for appropriate maintenance and preservation of the ART WORK. 1.3 Final Acceptance (a) The ARTIST shall advise the CITY in writing when all services in Sections 1.2 have been completed in substantial conformity with the Proposal. (b) The CITY shall notify the ARTIST in writing of CITY'S final acceptance of the ART WORK. (c) Final acceptance shall be given by the CITY within 30 days of receipt by CITY of written notice by ARTIST under Section 1.3(a), and acceptance shall be deemed to have been given by the CITY unless prior to the expiration of the 30 -day period, the CITY gives the ARTIST written notice specifying and describing the services which have not been completed. 1.4 Risk of Loss The risk of loss or damage to the ART 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 ART WORK from loss or damage until installation of the sculpture is completed. 1.5 Liability, Indemnification and Insurance (a) The ARTIST agrees to indemnify, defend and hold City and its officers, employees, and agents harmless from any and all loss, cost, damage and expense (including reasonable attorney's fees and court costs) resulting from, arising out of, or incurred by reason of any claims, actions or suits based upon or alleging bodily injury, including death, or property damage arising out of or resulting from ARTIST'S operations, duties or responsibilities under this Agreement, whether such be by ARTIST itself or by any subcontractor or by anyone directly or indirectly employed by either of them. (b) The ARTIST and all employees of the ARTIST shall each effect and maintain insurance to protect the ARTIST from claims under workers compensation acts; claims for damages because of bodily injury including personal injury, sickness or disease, or death of any of their employees or of any person other than their employees; and from claims for damages because of injury to or destruction of tangible property; including loss of use resulting therefrom; and from claims arising out of their performance of professional services caused by errors, omissions, or negligent acts for which the ARTIST is legally liable. 1.6 Title Title of the ART WORK shall pass to the CITY upon CITY'S final acceptance of the completed ART WORK. Article 2. Compensation and Payment Schedule 2.1 Fixed Fee The CITY shall pay the ARTIST Twelve Thousand and No /100 ($12,000.00) Dollars which shall constitute full compensation for all taxes, fees, services, expenses and materials, to be performed and furnished by the ARTIST under this Agreement. The fee shall be paid in two installments: 50% upon execution of this Agreement and the final 50% upon acceptance by the City. 2.2 Permits ARTIST is responsible for obtaining any and all permits from any governmental agency required to perform any aspect of the fabrication and installation of the ART WORK. Article 3. Time of Performance 3.1 Duration The services to be required of the ARTIST as set forth in Article 1 shall be completed in accordance with the schedule for completion of the ART WORK pursuant to Section 1.2, provided that such time limits may be extended or otherwise modified by written agreement between the ARTIST and the CITY. 3.2 Time Extensions The CITY shall grant a reasonable extension of time to the ARTIST in the event that there is a delay on the part of the ARTIST in performing its obligations under this Agreement due to conditions beyond the ARTIST'S control or Acts of God which render timely performance of the ARTIST'S services impossible or unexpectedly burdensome. Likewise the ARTIST shall grant a reasonable extension of time to the CITY in the event that there is a delay on the part of the CITY in performing its obligations under this Agreement due to conditions beyond the CITY'S control or Acts of God which render timely performance of the CITY'S services impossible or unexpectedly burdensome. Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control will not be considered a breach of contract; provided that such obligations shall be suspended only for the duration of such condition. Nothing herein shall be deemed to excuse the CITY from its obligation to make timely payments under Section 2.1 hereof. Article 4. Warranties 4.1 Warranties of Title The ARTIST represents and warrants that: (a) the ART WORK is solely the result of the Artistic effort of the ARTIST; (b) except as otherwise disclosed in writing to the CITY, the ART WORK is unique and original and does not infringe upon any copyright; and (c) the ART WORK is free and clear of any liens from any source whatsoever. 4.2 Warranties of Quality and Condition The ARTIST represents and warrants that: (a) the execution and fabrication of the ART WORK will be performed in a workmanlike manner; (b) the ART WORK, as fabricated and installed, will be free of defects in material and workmanship, including any defects consisting of inherent qualities which cause or accelerate deterioration of the ART WORK; and (c) maintenance recommendations submitted by the ARTIST to the CITY hereunder, if followed, will achieve their intended result. 3 The warranties described in this Section 4.2 shall survive for a period of five (5) years after the final acceptance of the ART WORK. The CITY shall give notice to the ARTIST of any observed breach with reasonable promptness. 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 and which cure is consistent with professional conservation standards (including, for example, cure by means of repair or refabrication of the ART WORK). Warranty does not include damage due to neglect, vandalism or acts of God. Warranty does not include patina to include changes of color due to the natural aging process of the patina. Article 5. Reproduction Rights 5.1 General The ARTIST retains all rights under the Copyright Act of 1976, 17 U.S.C., 101 et. seq., and all other rights in and to the ART WORK except City ownership and possession, except as such rights are limited by this Section 6.1. The ARTIST shall not make any duplicate reproductions of the final ART WORK, nor shall the ARTIST grant permission to others to do so except with the written permission of the CITY. The ARTIST grants to the CITY and its assigns a royalty -free, irrevocable license to make two dimensional reproductions of the ART WORK for educational and/or non - commercial purposes, including but not limited to reproductions used in advertising, calendars, posters, brochures, media, publicity, catalogues, museum, educational and development projects, or other similar publications, provided that these rights are exercised in a professional manner. 5.2 Notice All reproductions by the CITY shall contain a credit to the ARTIST and a copyright notice substantially in the following form: [ARTIST'S NAME], date of publication. 5.3 Registration The ARTIST may cause to be registered, with the United States Register of Copyrights, a copyright of the ART WORK in the ARTIST'S name. Article 6. 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. Article 7. Assiannents, Transfer, Subcontracting 7.1 Neither this Agreement nor any interest herein shall be transferred by the ARTIST. Any such transfer shall be null and void. 0 7.2 Subcontracting by ARTIST The ARTIST may subcontract portions of the services to be provided hereunder at the ARTIST'S expense provided that said subcontracting shall not negatively affect the design, appearance, or visual quality of the ART WORK and shall be carried out under the personal supervision of the ARTIST. The ARTIST must obtain approval from the CITY prior to hiring any subcontractor. If the CITY does not approve the hiring of any subcontractor, another subcontractor must be submitted for approval by the CITY. Article 8. Termination If either party to this agreement shall willfully or negligently fail to fulfill in a timely and proper manner, or otherwise violate any of the covenants, agreements or stipulations material to this agreement, the other party shall thereupon have the right to terminate this agreement by giving written notice to the defaulting party of its intent to terminate specifying the grounds for termination. The defaulting party shall have thirty (30) days after receipt of the notice to cure the default. If it is not cured, then this agreement shall terminate. In the event of default by the CITY, the CITY shall promptly compensate the ARTIST for all services performed by the ARTIST prior to termination. 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, provided that no right to fabricate or execute the ART WORK shall pass to the CITY and the CITY shall compensate the ARTIST pursuant to Article 2 for all services performed by the ARTIST prior to termination; or the ARTIST shall refund all amounts paid by the CITY in exchange for all finished and unfinished related ART WORKS. Notwithstanding the previous sentence, the ARTIST shall not be relieved of liability to the CITY for damages sustained by the CITY by virtue of any breach of this Agreement by the ARTIST, and the CITY may reasonably withhold payments to the ARTIST until such time as the exact amount of such damages due the CITY from the ARTIST is determined. Article 9. Compliance The ARTIST shall comply with Federal, State, and City statutes, ordinances and regulations applicable to the performance of the ARTIST'S services under this Agreement. Article 10. General Terms 10.1 Records Access. The ARTIST shall provide CITY access to any books, documents, papers, and records which are directly pertinent to the specific contract, for the purpose of making audit, examination, excerpts, and transcriptions, for three years after final payments and all other pending matters related to this agreement are closed. 10.2 Subcontractor Payment. The ARTIST shall pay any subcontractor involved in the performance of this agreement within ten (10) days of the ARTIST's receipt of payment by CITY for undisputed services provided by the subcontractor. If the ARTIST fails within that time to pay the subcontractor any undisputed amount for which the ARTIST has received payment by the CITY, the ARTIST shall pay interest to the subcontractor on the unpaid amount 5 at the rate of One and One -Half Percent (1 -1/2 %) per month or any part of a month. The minimum monthly interest penalty payment for an unpaid balance of One Hundred and No /100 Dollars ($100.00) or more is Ten and No /100 Dollars ($10.00). For an unpaid balance of less than One Hundred and No /100 Dollars ($100.00), the ARTIST shall pay the actual interest penalty due to the subcontractor. A subcontractor who prevails in a civil action to collect interest penalties from the ARTIST shall be awarded its costs and disbursements, including attorney's fees, incurred in bringing the action. 10.3 Non - Discrimination. During the performance of this agreement, the ARTIST shall not discriminate against any employee or applicants for employment because of race, color, creed, religion, national origin, sex, sexual orientation, marital status, status with regard to public assistance, disability, or age. The ARTIST shall post in places available to employees and applicants for employment, notices setting forth the provisions of this non - discrimination clause and stating that all qualified applicants will receive consideration for employment. The ARTIST shall incorporate the foregoing requirements of this paragraph in all of its subcontracts for program work, and will require all of its subcontractors for such work to incorporate such requirements in all subcontracts for program work. 10.4 Data Privacy. The ARTIST shall comply with Minnesota Statutes Chapter 13, the Minnesota Government Data Practice Act. The ARTIST shall not disclose non - public information except as authorized by the Act. 10.5 Meetings. At the request of CITY, the ARTIST shall attend such meetings of the City Council relative to the work set forth in this Agreement. Any requests made by the CITY shall be given with reasonable notice to ARTIST to assure attendance. 10.6 Severable provisions. Should any section of this Agreement be found invalid, it is agreed that the remaining portion shall be deemed severable from the invalid portion and continue in full force and effect. 10.7 Governing LawNenue. The laws of the State of Minnesota govern the interpretation of this Contract. In the event of litigation, the exclusive venue shall be in the District Court of the State of Minnesota for Sherburne County. Article 11. Entire Agreement This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 2 Article 12. Modification No alteration change, or modification of the terms of the Agreement shall be valid unless made in writing and signed by both parties hereto and approved by appropriate action of the CITY. ARTIST "/ 41'4t _ Carl Zachman CITY OF ELK RIVER John J. Dietz, Mayor ATTEST Tina Allard, City Clerk EXHIBIT "A" Proposal "Powered By Nature ": A Public Art Installation Proposal By Carl Zachmann For the City of Elk River, MN General Information Dimensions Width from the tip of the tail to the front of the fan blades 84in For scale the largest blue gear has a 26in diameter Height from the top of the governor to the bottom of the lowest gear 61in (Note that the lowest gear hangs below the top of the pole) Diameter fan blade 42in Height of Pole 9 - loft Project Understanding In 1805, when Zebulon Pike named the river for the herds of roaming elk that eventually gave the city of Elk River its name, he set an important precedent for the future caretakers of the land: the town, in its enviable area of rushing rivers and strong trees, should never be separated from the nature from which it sprung. Throughout the years, the accomplishments of the people of Elk River have been a testament to the necessary and healthy connection between nature and progress. In the very beginning, nature powered Elk River and helped it grow. Taking advantage of the area's abundant natural resources, David Fairbault built his trading post, bringing commerce to the area. Others noticed Elk River's unmistakable advantages: Ard Godfrey, recognizing the potential of the river to provide power, built his sawmill. The population grew and agriculture flourished. The hydroelectric dam was built, literally and figuratively powering the early town. The march to modernity and prosperity moved on. As an artist and a scholar, I make work that is informed by the grit and creative energy of American history. Elk River, being the dynamic place that it is, offers an amazing opportunity for me to pay homage to the past while also inspiring the future. By creating a site - specific piece with historical elements and brand - appropriate shapes and colors, I believe I can do justice to the community�s wish for a memorable, impactful, and unique addition to the city s public art collection. I want to express through my work the unbroken, almost symbiotic link between the town and its natural surroundings, since that to me is what "powered by nature" means. Unlike many other places, Elk River has not taken unsafe advantage of its natural assets. It has instead treasured them and worked with them, preserving their integrity throughout periods of great growth and advancement. My piece, with its kinetic potential, has the exciting result of being both an intriguing static piece and a dynamic moving statement of progress and motivation. The history and forward- thinking energy of Elk River have greatly inspired me in the planning of this piece. I appreciate the strong historical ties Elk River has to its past, and it is my hope that my piece will serve as a reminder to those who view it to always keep the connection between history, nature, and progress at the forefront of their minds. The saying "Elk River, powered by nature" is not simply an idle reflection on what makes Elk River special. It is a reminder of what has honestly made Elk River the dynamic, exciting community it is today. This is what I believe, and this is what I will convey in my public art piece. Project Approach The overall look and movement of my piece is reminiscent of the windmills used on farms to pump water. I have chosen the spoke patterns, shapes, colors, and accents for my proposed piece for very specific reasons. A pattern from a vintage coffee grinder, found in general stores just like those that would have been in the early town of Elk River while it was growing, plays nicely with the hardworking patterns drawn from early American agricultural and industrial designs. The governor with its steel balls, used by water mills and steam engines to govern and regulate their speed, gets a new life as artistic accent in my piece. The spherical weights will rise and fall, interacting with the wind as its speeds change. The shape of the curved pole that the whole piece sits atop is taken from the City of Elk River's logo and is representative of the waterpower that built the city and gave it its name. The lines are tipped vertically. The same curve of the pole's lines is echoed in the falling, diminishing size of the vertical gears in the piece. The tail of the piece has a vintage design, inspired by those found on old farm windmills. The gears in my piece are handmade, drafted from patterns found through years of documentation and research. They will be cut from sheets of self - weathering steel using a plasma torch before being layered and welded together in a method that mimics the casting process of period originals. The gears will be painted and then distressed to give them a vintage appearance before being arranged in the final composition. The colors of the piece are important: The large dark blue gears on either side of the piece represent the mighty Mississippi with the train of lighter blue gears representing the Elk River as it flows into the Mississippi. The red gear is representative of the city of Elk River on the banks at the confluence of both rivers. The last two gears located on opposite sides of the sculpture represent the nature that the city was built on, around, through, and with. To one side there is a green cog, symbolizing the forest and lumber that helped build Elk River. To the other side, a rich yellow gear serves as a reminder that the city is not just water and woods, but also on the edge of the prairie that helped the area's agriculture to flourish, causing Elk River to further grow into the modern city it is today. Some more specifics on the piece that will give insight into my methods are as follows: The wind sculpture will be self - furling like those found on old farms, so that the piece will take itself out of strong winds, increasing the longevity of the piece. The piece will use standard replaceable off -the -shelf sealed stainless steel bearings, with all the shafting and bearing sleeves also being constructed from stainless steel to ensure that years from now, any future maintenance will be smooth and easy. A galvanized tail and wind veins will give the piece a vintage appearance, resist corrosion, and contrast with the other colors, textures, and metals in the sculpture. Made from self - weathering steel, the frame and base will take on a rusty vintage appearance but not deteriorate as normal steel would. All painted parts, such as the gears, will be painted with a durable automotive -type paint that is then coated with a UV resistant clear coat to negate any color fading that could occur otherwise. I make my work to last. Location. Installation. and Future Maintenance Proposed Schedule Proposal Submitted Elk River City Council approves project Materials (Ordering /purchasing of steel and other parts and materials Includes travel to and from both Minneapolis, MN and Fargo, ND) Construction of artwork Nov. 6 Jan. 20 Feb. 1 -15 Feb. 15 - Mar. 31 (Includes Final drafting, cutting of gears, frame, wind vain, and tail Construction, welding, painting, machining, and assembly) Construction of base parts (Fabrication of curved pole, rebar and anchor bolt assembly) Installation of concrete base, anchors, and rebar (Excavation of soil, concrete forming and pouring, installation of rebar and anchor bolt assembly) Concrete curing time Installation of sculpture Completion Unveiling celebration Apr. 1 -Apr. 30 May 1 May 2 -14 May 15* June 1 July 4 *Some extra time has been allotted but the installation of the concrete and the final piece may vary slightly depending on ground conditions and weather. Location After researching Elk River's vast number of parks, I spent an afternoon driving around the community studying all possible locations. After narrowing down the choices and after much consideration of the front Flowerbed of the city s library, I selected it for its location, varying wind speeds, and vegetation. The build's clean contemporary lines and the sculpture's design and motion will complement each other. Set against the building and near Orono Lake, the motion and sound of the piece will be enhanced by the varying winds off the lake. The established blue stem prairie grasses growing underneath it will further enhance the piece's motion. I believe this will help connect the piece to Elk River's past: the blowing grass has a very water -like quality as it sways and bends in the breeze. Attention will go to the movement created by the wind as a whole, both through the grasses and through the sculpture itself. Installation and Maintenance The piece is designed to need as little maintenance as possible. It is designed for years of active use, with all wearing parts of the kinetic sculpture being easily replaced years down the road should the need ever arise. I recommend that someone inspect the piece once a year to ascertain that the piece and the bearings are in good working order. The bearings are designed for years of use in industrial sites and in wet locations, at higher rpm's than the wind can even produce through the piece. Still, it is possible that years down the road, some bearings may need to be replaced. I made this process easy by using standard sized replaceable off -the -shelf sealed stainless steel bearings that run on stainless steel shafts inside stainless steel sleeves, to ensure easy and smooth bearing replacement if necessary. The whole piece will be bolted to a cement anchor point in the middle of the flowerbed. Additional Information Carl J. Zachmann, Kinetic Machine Artist Cell: (701) 261 -9542 941 N. Rosemary, Fergus Falls, MN 56537 cjzachmann @gmail.com I carlzachmann.com Education Masters of Science in Historical Archaeology Illinois State University Normal, IL December 2010 Bachelor of Arts in Anthropology Minnesota State University Moorhead Moorhead, MN December 2006 • Emphasis in Archaeology • Minor in Art Employment Professional Full -time Artist Nationwide May 2011 — Present Assistant/Apprentice to Jeffrey Zachmann Fergus Falls, MN 2011 Awards Featured Artist Cottonwood Art Festival Richardson, TX May 2014 Madison Museum of Contemporary Art Fair on the Square Madison, WI Jul 2013 Art (MMoCA) Invitational Award Third Place in Sculpture 49`" Annual Coconut Gove Festival Coconut Grove, FL Feb 2012 One -of -a -Kind challenge Winner Exploring TOSCA Ouarterly Minneapolis, MN Winter 2012 Award of Excellence Art Splash Sioux City, IA Aug 2011 Artwork Mesabi Range Community and Technical College Eveleth, MN Apr 2014 Selected pieces at the Kaddatz Gallery Fergus Falls, MN Nov 2012 — Present Cherry Creek Mobile Art Gallery Denver Metro Area Acquired July 2012 Commissioned artwork for the Fort Worth Children's Hospital Fort Worth, TX 2012 People's State Bank Goodland, KS July 2012, Mar 2014 Mercury Werks Corporate Office Dallas, TX Mar 2012 State Wide Roofing Islip, NY Mar 2012 Numerous pieces in private collections around the world May 2011 —Present Exhibitions/Shows American Craft Council, St. Paul St. Paul, MN Apr 10 -13, 2014 Cottonwood Art Festival, Featured Artist Richardson, TX Oct. 2011, May 2013, May 2014, Oct 2014 Old Town Art Fair Chicago, IL Every June 2012 — Present Cherry Creek Arts Festival Denver, CO 4" of July weekend, 2012, 2014 MMoCA, Art Fair on the Square Madison, WI Mid. Jul, 2013 — Present Scottsdale Arts Festival Scottsdale, AZ Every Mar, 2012 — Present Bayou City Arts Festival Houston, TX Oct 2011 & 2013 Coconut Grove Arts Festival Coconut Grove, FL Feb 2012 & 2013 Naples National Art Festival Naples, FL Feb 2012 & 2013 State Street Area Art Fair Ann Arbor, MI July 2012 & 2013 Main Street Arts Festival Fort Worth, TX Apr 2013 Art in the Pearl Portland, OR Sep 2013 Total Estimated Project Costs a. Public art piece materials: Weathering steel (7ga, 10ga, 12ga), galvanized 18ga steel, bearings, miscellaneous steel and parts b. Transportation costs: Mileage (from Fergus Falls, MN) Minneapolis for materials Fargo for materials Three trips to Elk River for instillation c. Installation costs, time and materials: Concrete, rebar, anchor bolts f. Future maintenance costs: Replacement bearings as needed $2,700 355mi 120mi 925mi 1,400mi at $0.50 per mi e. Any other costs or charges deemed relevant by the artist: $700 $500 $25ea.* Artist Compensation for Time and Talent $8,000 $12,000* *Total project cost does not include cost of possible future maintenance*