Loading...
HomeMy Public PortalAbout2020.07.28 MRA Artwork Commission Agreement - Westover ARTWORK COMMISSION A GREEMENT By and between THE MCCALL REDEVELOPMENT AGENCY, THE CITY OF MCCALL And WESTOVER ARTWORKS, LLC THIS AGREEMENT is made and entered into this,,4 day of / , 2020, by and between the Urban Renewal Agency of the City of McCall, Ida To, a so known as the McCall Redevelopment Agency, an independent public body corporate and politic (hereafter "Agency"), the City of McCall (hereafter "City"), a municipal corporation of the State of Idaho, and Westover Artworks,LLC(hereafter"Artist"), for the purpose of planning,design,fabrication, and installation of artwork(hereafter"the Work")for placement within what is commonly referred to as the Lakefront Project Area, established by the 1990 Urban Renewal Plan for the Railroad Avenue Area, by City Council Ordinance No. 578 on December 13, 1990, and as amended by Section 900 of the Railroad Avenue Plan referred to as the 2006 Updated Urban Renewal Plan (collectively the Plan, as amended is referred to as the "Railroad Avenue Plan"), (hereafter the Lakefront Project Area may be referred to as the"District"). WHEREAS, the Agency is an independent public body, corporate and politic, authorized under the authority of the Idaho Urban Renewal Law of 1965, Chapter 20, Title 50, Idaho Code, as amended (the "Law"), and the Local Economic Development Act, Chapter 29, Title 50, Idaho Code,—as amended-(the"Act"), a duly created-and-functioning-urban-renewal-agency-for McCall,-- -- - — Idaho; WHEREAS, public art is an important objective in implementing the Railroad Avenue Plan, as further set forth in the McCall Lake Front Improvements — An Urban Renewal Project, Design Development and Decision Package, dated October 2006 (the "Lake Front Improvement Project Plan"); WHEREAS, placement of public artworks within the District furthers the Railroad Avenue Plan goals to further the "development and strengthening of tourist/visitor/convention and related commercial functions in the Project Area," and"strengthening of the economic base of the Project Area and the community by the installation of needed site improvements to stimulate new commercial expansion, employment, and economic growth;" WHEREAS,the McCall Area Comprehensive Plan(2018)includes a goal to"celebrate the culture of McCall and creativity of residents through public art (pg. 41);" and WHEREAS, the Agency has agreed to allocate funding for public artworks within the District in an amount not to exceed$100,000; WHEREAS, a selection panel consisting of representatives from businesses located within the District, the Agency, McCall Public Art Advisory Committee, and McCall Parks & Recreation Advisory Committee (the "McCall Public Art Advisory Committee") selected the Artist through a competitive proposal process; MRA Artwork Commission Agreement-Westover Page 1 of 13 7/21/2020 WHEREAS, the McCall Public Art Advisory Committee unanimously recommended the Artist for commission of Work within the District at its June 29, 2020 meeting; WHEREAS, it is anticipated the Work will commence immediately and will continue into FY2021; WEREAS, after the Work is completed, the Agency will transfer ownership of the Work to the City; WHEREAS, the ability for the City and Agency to cooperate and jointly benefit each other is expressly allowed pursuant to Idaho Code Section 50-2015; THEREFORE, the parties hereto agree as follows: 1. THE SITE: For purposes of this Agreement, the site (or sites if multiple installations) shall be within the boundary of the District. 2. SCOPE OF SERVICES: Artist shall complete the following scope of services: a) Work with Agency and City representatives to identify and prioritize opportunities and locations for future public artworks within the District and produce a report on potential sites (the "Public Art Siting Plan"); and b) Develop not less than three(3) design proposals for the final Work to be located on one or more priority sites identified in the Public Art Siting Plan. The proposals will be exhibited at a public venue and on the City of McCall Website to gain community input. Based upon this community input,the Agency will be asked to approve the final design and proposed location(s) for the Work; and c) Upon Agency approval of the final design and proposed locations(s) for the Work, development of a fabrication and installation milestone schedule,including information as may be requested by the City project manager. The Agency will be asked to approve the proposed schedule; and ` d) Upon Agency approval of the final design, proposed locations(s) and fabrication and installation milestone schedule for the Work, then the Artist shall fabricate and install the Work as represented in the approved conceptual design. Artist shall work with City's Public Works, Parks and Recreation, and Community and Economic Development Department staff to complete any design decisions and may hire necessary sub-contractors to plan, implement and coordinate the fabrication and installation of the Work; and e) Provide and install one title block, constructed of a durable material and not exceeding 100 square inches in size, stating the name of the artist(s), title of the Work, year completed, and list of project funders; and f) Following completion and installation prepare information and/or documents as set forth in section 8(b) MRA Artwork Commission Agreement-Westover Page 2 of 13 7/21/2020 3.ARTIST RESPONSIBILITES: a) In addition to other responsibilities set forth in this Agreement, Artist shall attend meetings in person or by phone with City staff and Agency board members to provide periodic progress reports as requested. b) Artist shall not assign any of his/her obligations under this Agreement without the written consent of the Agency. This provision shall not prevent the Artist from subcontracting for obligations that do not require the Artist's talents, including, but not limited to, such obligations as engineering, structural engineering, drawing architectural renderings or plans for the or the preparation and submittal of operations and maintenance manual for all works, fabrication or installation. 4. COMPENSATION: The Artist's fee for the scope of work and services contained in this Agreement is an amount not to exceed One Hundred Thousand and No Hundredths Dollars ($100,000.00). This amount shall constitute full payment for all services the Artist shall perform, including necessary materials and fees, as set forth in the Scope of Services and this Agreement. Payments shall be in multiple installments as follows: a) Ten Thousand Dollars ($10,000.00) no later than sixty (60) days from completion of the scope of services as defined by section 2(a) above including the receipt of a Public Art Siting Plan. b) Five Thousand Dollars ($5,000.00) no later than sixty (60) days from completion of the scope of services as defined by section 2(b) above including receipt of not less than three (3) design proposals for the final Work and community outreach activities. c) If Agency approves the final design, proposed locations(s) and fabrication and installation milestone schedule for the Work, an amount not to exceed Eighty Thousand Dollars ($80,000.00) in incremental amounts based on cash flow needs and fabrication milestones as verified with City's project manager, no later than sixty (60) days from the time the Agency receives Artist's invoices for fabrication milestones completed, materials ordered, other sub-contractor fees, project management fees, and installation of artwork. d) The balance of Five Thousand Dollars ($5,000.00) no later than sixty (60) days from final review and approval by the Agency or its assignees confirming that Artist has met all terms and conditions of the Scope of Services and this Agreement. 5. AGENCY RESPONSIBILTIES: The Agency and City agree to timely furnish Artist all information,reports,data, statistics, drawings and information in its possession concerning matters covered by this Agreement, together with timely access to all facilities, personnel and data necessary to perform the Work unless such disclosure is prohibited by law. 6.TIME OF PERFORMANCE: Artist shall complete the Scope of Services on or before August 31, 2021, or on such other date as may be agreed upon between the Parties in writing. 7. APPROVALS: Artist shall allow the Agency and City to review the Work's progress as follows: a) Initial review and approval of the designs and/or working drawings to determine that the Work is appropriate for the location. MRA Artwork Commission Agreement-Westover Page 3 of 13 7/21/2020 b) Review and approval of design and installation methods shall occur within a reasonable period prior to the commencement of fabrication or installation, as appropriate. c) Periodic review, via photographs, and approval as the Work's fabrication progresses. d) Agency or its designee shall review and approve or disapprove the Work within seven (7) days of final completion and installation. If, during the approval reviews, Agency concludes that the Work does not conform to the designs as previously approved, or as mutually agreed by the Parties in writing,the Agency shall provide Artist with a notice in writing of specific non-conformity and request Artist to address and cure the specific non-conformity within two weeks of the reviews. Artist shall have thirty (30) days within which to address, cure, and correct any non-conformity. If, after resubmission, the Work still does not conform, this Agreement shall be subject to immediate termination for cause. Failure by the Agency to disapprove in writing in a timely fashion shall be presumed to be approval of the Work. 8. PROJECT CLOSE-OUT: a) Upon installation of the Work and prior to final approval or disapproval,Artist shall furnish the Agency a full release and lien waiver, together with such releases and waivers from any subcontractor who furnished goods for or performed services for the Work in any way. Artist shall comply with all applicable federal, state and local laws, statutes, rules, regulations and/or ordinances. b) Artist shall also submit a conservation/maintenance plan to the City including specific recommendations for on-going maintenance and repairs, as well as slides and/or photo and written documentation of fabrication and installation of the Work, such as to assist in future maintenance, repair, and public education. 9. REPAIRS, MAINTENANCE, OR ALTERATIONS: a) Artist is responsible for all parts and workmanship of the Work for a period of one(1)year after acceptance of the Work, and shall replace any defective parts or rework any defective craftsmanship in a timely fashion at no cost except as provided in Section 9b) and 9c) of this Agreement. b) Artist shall not be responsible for and shall not be held liable for any damage beyond the control of Artist to the Work, its surfaces, or environment caused by personnel of the Agency, City of McCall or its visitors, or others. c) Artist shall not be responsible for and shall not be held liable for any damages to the Work by extremely adverse weather conditions, acts of God, vandalism, or other acts abnormal to the site. d) Artist shall provide the City with written instructions for the appropriate maintenance and preservation of the Work as required by 8(b) above. e) The City may provide basic maintenance, restoration and repairs as it deems necessary. City shall be responsible and pay for repairs following expiration of the one-year warranty period. f) Whenever practical and as funding becomes available,Artist shall be given an opportunity to perform and/or act as consultant for the repair or restoration for which Artist shall receive reasonable compensation. In the event that the Work is damaged or destroyed, the City may, in its sole discretion, relocate, repair, or restore the Work subject to receipt of any MRA Artwork Commission Agreement-Westover Page 4 of 13 7/21/2020 insurance proceeds and availability of sufficient funds.City reserves the right to determine, after consultation with an independent, professional art conservator, if, when and how any repair and restoration to the Work can be made, and the nature, scope and anticipated cost of any such repair or restoration. City reserves the right to contract with a conservator, rather than Artist, to implement any such repairs or restoration. g) For purposes of this Agreement, no modification of the artwork that results from the passage of time or the inherent nature of the materials used in the Work shall constitute a modification. In addition, no modification of the Work that is the result of conservation or of its public presentation (including but not limited to lighting and placement) shall constitute a modification that is prejudicial to the Artist's honor or reputation or for which Artist may claim relief or any remedy from City unless such modification is the direct result of gross negligence by City. h) The action of the City in the exercise of its governmental powers (including but not limited to the issuing of any permit for the redevelopment of land or any structure thereon other than action by the City on the specific site of the Work) shall not constitute a modification of the artwork for which Artist may claim damages or any other form of relief from the City. i) By executing this Agreement, Artist consents to the installation of the Work in or around the site specified in this Agreement. Artist acknowledges that such installation may subject the Work to destruction, distortion, mutilation or other modification by reason of its removal from that location. j) If a modification of the Work occurs,Artist may give written notice to City requesting that his/her name and the artwork be dis-associated, the Work shall not longer be designated as the Artist's Work. 10. WARRANTY: Upon final acceptance of the completed Work by the City project manager and the Agency, Artist warrants that the Work shall be free from defects in materials and workmanship, including inherent vice. Artist, for a period of one (1) year after acceptance, shall correct any such defects at Artist's expense. "Inherent vice" refers to a quality within the material or materials which comprise the Work which, either alone or in combination with other materials used in the Work or reacting to the environment, results in the tendency of the Work to destroy itself. Upon written notification of a defect in materials or workmanship, Artist shall have sixty (60) days to commence repairs and shall conclude the repairs within a reasonable time thereafter. 11. RELOCATION AND/OR REMOVAL OF ARTWORK: a) The City shall not relocate or remove the Work and/or substantially modify the site in/on which it is located without attempting to notify Artist of the proposed change and attempting to reach agreement with Artist regarding the future appearance or location of the Work. Except that the City may authorize the temporary relocation or temporary removal of the Work without the Artist's prior permission. For the purpose of this section temporary shall mean to be for a period less than 90 days. b) If the City determines that the Work should be permanently removed or, though, decay, vandalism or other forces, the Work has lost its integrity, the City shall first make a good- faith effort to contact the Artist and offer the Work to the Artist at the Artist's cost to collect and remove the Work within six(6) months from the date of notification. MRA Artwork Commission Agreement-Westover Page 5 of 13 7/21/2020 12. OWNERSHIP: Artist warrants that, unless otherwise stipulated, the Work is original, in that the Work owes its creation or origin to Artist, and is not the product of copying another's work in any manner. Furthermore,Artist warrants and represents he has not previously published the Work which is transferred by, and the subject of this Agreement and that Artist is the sole owner of all rights therein. Upon final approval and acceptance of Work, delivery and installation, and final payment by the Agency, ownership of the Work shall transfer to the City. Artist hereby expressly waives any right,title or interest in the Work. Artist understands that said waiver includes waivers of the exclusive rights of adaptation, publication and display. 13. COPYRIGHT RETENTION: a) Artist has retained all rights under the Copyright Act of 1976. 17 U.S.C. § 101 et seq., as the sole author of the Work for the duration of the copyright. b) Artist grants to the City and its assigns an irrevocable license to make two-dimensional reproductions of the Work, including, but not limited to, reproductions used on web sites, in brochures,media publicity and exhibition catalogues or other similar publications.Artist also consents to the use, at City or Agency's discretion, of Artist's full name and Artist's own identifying photograph in any publicity or promotional materials produced for the Work, whether printed or electronic. Such consent includes placement of these items on any web site the City and/or Agency maintains. City and/or Agency has the right to reproduce images of the Work for educational or promotional uses only. c) The City and/or Agency are not responsible to prevent third party infringement of the Artist's copyright and not responsible for enforcement of, or protecting, the intellectual property rights of the Artist. 14.WAIVERS AND RELINQUISHMENTS OF RIGHTS:Artist agrees to relinquish all rights, title, and interest to the Work and, hereby expressly waives any rights Artist has to such artwork including, but not limited to, the rights afforded artists under the Visual Rights Act of 1990, Title 17 U.S.C. Sections 101, et seq. Artist understands and agrees that the right of integrity, but not of attribution, as specifically set forth in 17 U.S.C. Section 106A, is hereby expressly waived except as otherwise provided herein. If at any time following final approval, the City chooses to move the Work, City shall make reasonable attempts to contact and to notify Artist regarding the City's plans; provided, however, Artist shall have no right to override or veto the City's plans and Artist hereby waives their right to file a claim or demand of any type against the City based upon any future decision regarding the placement of the Work, including those granted pursuant to the Copyright Act of 1976 and the Visual Rights Act of 1990. To the extent that the provisions of this Agreement differ from the Copyright Act of 1976 and Visual Rights Act of 1990, the provisions of this Agreement shall govern and Artist expressly waives any such differences in the rights and duties. 15. ARTIST'S INSURANCE: a) The Artist shall procure and maintain at his/her expense during the period of this Agreement, including the warranty period, the following insurance coverage from an insurance company or companies possessing a financial strength rating of at least A- and a financial size category of VII or higher from A.M. Best or an equivalent rating service: a. Commercial General Liability Insurance: Limit will not be less than $500,000.00 or the minimum amount as specified in the Idaho Tort Claims Act set forth in Title MRA Artwork Commission Agreement-Westover Page 6 of 13 7/21/2020 6, Chapter 9 of the Idaho Code, whichever is higher. Coverage shall include, but not be limited to, bodily injury and property damage to third parties, contractual liability, products-completed operations, personal injury and advertising injury liability ($500,000.00 limit). b. Commercial [Business] Automobile Liability: Limit will not be less than $500,000.00 per occurrence for owned, non-owned and hired vehicles. Where applicable, the Agency and City shall be named as additional insureds on the commercial automobile liability. c. Workers Compensation and Employers Liability: Artist shall have and maintain during the life of this contract, statutory workers compensation, regardless of the number of employees (including himself/herself) to be engaged in work on the project under this agreement in the statutory limits as required by law and employers liability with a limit of no less than $500,000.00 for bodily injury by accident or disease. In case any such work is sublet, the Artist shall require the subcontractor provide workers compensation insurance for himself/herself and any/all the subcontractor's employees engaged in such work. Artist shall provide proof of insurance to the City project manager and Agency prior to the start of work. b) The Artist hereby grants to the City and Agency a waiver of any right to subrogation which any insurer of said Artist may acquire against the Agency by virtue of the payment of any loss under such insurance. Artist agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation,but this provision applies regardless of whether or not the Agency has received a waiver of subrogation endorsement from the insurer. All of Artist's policies shall be primary and Artist agrees that any insurance maintained by the City and/or Agency shall be non-contributing with respect to the Artist's insurance. Artist shall advise the City project manager and Agency of any cancellation, non-renewal, or material change in any policy within five business days of notification of such action. c) By requiring Artist to maintain insurance with the City and Agency named as additional insureds, herein, the City and Agency do not agree that such coverage and limits will necessarily be adequate to protect Artist or such coverage and limits are a limitation on Artist's liability under the indemnities granted to the City and Agency in this Agreement. The Artist may use commercial umbrella/excess liability insurance so that Artist has the flexibility to select the best combination of primary and excess limits to meet the total insurance limits required by this Agreement. If the Artist maintains higher limits than the minimum shown above, the City and Agency require and shall be entitled to coverage for the higher limits maintained. Any deductibles or self-insured retentions must be declared to and approved by the City and Agency. The City or Agency may require the Artist to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The City or Agency reserves the right at any time throughout the term of the Agreement to adjust the aforementioned insurance requirements,if,in the City or Agency's reasonable judgment, the insurance required by the Agreement is deemed inadequate to properly protect the City or Agency's interest. The City and Agency reserve the right to modify portions of the insurance requirements for good cause. d) The failure of the City or Agency at any time to enforce the insurance provisions, to demand such certificate or other evidence of full compliance with the insurance requirements, or to identify a deficiency from evidence that is provided shall not constitute MRA Artwork Commission Agreement-Westover Page 7 of 13 7/21/2020 a waiver of those provisions nor in any respect reduce the obligations of the Artist to maintain such insurance or to defend and hold City and Agency harmless with respect to any items of injury or damage covered by this Agreement. e) The Artist shall provide the City and Agency with a valid certificate of insurance and amendatory endorsements or copies of the applicable policy language affecting coverage, in advance of the performance of any work and as soon as possible after renewal,exhibiting coverage as required by the contract terms and conditions. Failure to obtain the required documents prior to the work beginning shall not waive the Artist's obligation to provide them. The City and Agency reserve the right to require complete, certified copies of all required insurance policies,including endorsements required by these specifications,at any time. The Artist shall be responsible for ensuring that all Subcontractors independently carry insurance appropriate to cover each Subcontractors' exposures or that all such liabilities are covered under the Artist's policies. The Certificate of Insurance shall be provided on the industry standard form (ACORD 25) or other form acceptable to the Agency. Certificates of insurance shall be issued to: City of McCall 216 E. Park St. McCall, ID 83638 and McCall Redevelopment Agency 216 E. Park St. McCall, ID 83638 16. CITY'S INSURANCE: Upon final completion and installation of the Work, and acceptance of the Work, City shall obtain property insurance for the Work which may be included in the City of McCall insurance program. 17. INDEMNIFICATION: Artist shall indemnify and save and hold harmless the Agency and City, its elected officials, commissioners, officers, employees, agents, consultants, contractors and volunteers, from and for any and all liability, losses, claims, actions, judgments for damages, or injury to persons or property and losses and expenses, including reasonable attorney fees, arising from all acts or omissions to act of Artist or its servants, officers, agents, contractors, employees, guests, and business invitees in rendering services under this contract or otherwise caused or incurred by Artist, its servants, officers, agents, contractors, employees, guests, and business invitees, and not caused by or arising out of the tortious conduct of the Agency or City or its elected officials, commissioners, officers, employees, agents, consultants, contractors and volunteers. The limits of insurance will not be deemed a limitation of the covenants to indemnify and save and hold harmless the Agency and City, its elected officials, officers, employees, agents, consultants, contractors and volunteers. If the Agency or City becomes liable for an amount in excess of the Artist's insurance limits,Artist covenants and agrees to indemnify and save and hold harmless the Agency and City, its elected officials, officers, employees, agents, consultants, contractors and volunteers, from and for any and all liability, losses, claims, actions, judgments for damages, or injury to persons or property and losses and expenses, including reasonable attorney fees, to the extent permitted by law. MRA Artwork Commission Agreement-Westover Page 8 of 13 7/21/2020 18. NONDISCRIMINATION: a) In the performance of this Agreement, Artist and any sub-contractors agree not to discriminate in their employment practices against any employee, contractor, sub- contractor or applicant for employment because of the employee's or applicant's race, religion, national origin, ancestry, sex, age, physical handicap or sexual orientation and/or gender identity/expression. b) Artist also agrees to comply with all provisions of Idaho law relative to labor, and all other applicable federal, state, and/or local statutes, ordinances, and regulations relative to employment, wages, and hours of labor. 19.INDEPENDENT ARTIST:The parties intend that this Agreement create only an independent contractor relationship and that Artist is not an employee, agent,joint venturer or partner of the Agency or City. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Artist and the Agency or City or between Artist and any official, agent or employee of the Agency or City. All parties acknowledge that Artist is not an employee of the Agency or City. Artist shall retain the right to perform services for others during the term of this Agreement. Neither federal, state or local income taxes, nor payroll taxes of any kind shall be withheld and paid by Agency on behalf of Artist or the employees or subcontractors of Artist. Artist shall not be treated as an employee with respect to the services performed hereunder for federal or state tax purposes. Artist is responsible to pay, according to law, Artist's income tax. Artist may be liable for self-employment (Social Security) tax to be paid by Artist according to law. 20.ENTIRE AGREEMENT: This is the entire agreement of the parties and can only be modified or amended in writing by the parties. 21. SEVERABILITY: If any provision of this Agreement or application thereof is held invalid, such invalidity will not affect other provisions or applications of this Agreement which can be given effect without the invalid provision or application, and to that end, the provisions hereof are declared to be severable. 22. AGREEMENT MADE IN IDAHO: The laws of the State of Idaho shall govern the validity, interpretation, performance and enforcement of this Agreement. 23. DISPUTE RESOLUTION.All disputes arising out of this Agreement shall first be subject to good faith negotiations between the parties. If such negotiations are unsuccessful, either party may notify the other and work in good faith to select a mutually acceptable mediator within thirty (30) days after notice. If after good faith effort the parties are unable to agree to a mutually acceptable mediator or if mediation is not scheduled within 120 days from the date of notice, or if the mediation is not successful in resolving the entire dispute, any outstanding issues may be resolved by litigation. in a court in Valley County in the State of Idaho. The costs of mediation shall be borne equally by the parties. 24.ATTORNEY FEES: If action is brought to enforce the terms or provisions of this Agreement, or to enforce forfeiture for default, or to collect damages for breach, the prevailing party in such MRA Artwork Commission Agreement-Westover Page 9 of 13 7/21/2020 action shall be entitled to recover from the non-prevailing party reasonable attorney fees together with costs authorized by law. 25. TERMINATION FOR CAUSE: If a party willfully or negligently fails to fulfill its obligations under this Agreement, the other party shall have the right to terminate the Agreement, the other party shall have the right to terminate the agreement by giving written notice to the defaulting party of its intent to terminate and specify the grounds for termination. The defaulting party shall have thirty(30) days after receipt of the notice to cure the default. If the defaulting party does not cure the default this Agreement shall terminate. In the event of termination for non- performance by Agency, it shall compensate the Artist for all phases of the Scope of Services the Artist has successfully completed and any additional services and materials performed or supplied prior to termination; provided however, that such payment shall be limited to the amount of compensation set forth herein. In the event of default by the Artist, except that caused by the death or incapacity of the Artist, all finished and unfinished drawings, photographs, and other Work products prepared and submitted or prepared for submission under this agreement shall, at City's option, become its property. The Agency and City shall not relieve the Artist of any liability for damages sustained by virtue of the Artist's breach or default of this Agreement and the Agency may reasonably withhold payments due until the exact amount of damages due from Artist is determined. 26. TERMINATION FOR CONVENIENCE: Agency or City may terminate this Agreement for any reason at any time by giving at least fifteen (15) days' notice in writing to Artist. If the Agreement is terminated by Agency as provided herein, Agency shall compensate Artist for all phases of the Scope of Services Artist has completed.'to date of written notice of termination and any additional services and materials performed or supplied prior to termination, less payments of compensation the Agency has previously made, not to exceed the amount set forth in Section 4. If payments the Agency has previously made exceed the amount of compensation due hereunder, Artist shall immediately refund the unearned balance to Agency. If the Agency or City terminates this Agreement due to the fault of Artist, Section 25 hereof relative to termination shall apply. 27. FORCE MAJEURE:Neither Artist nor Agency nor City shall be considered in default in the performance of its obligations hereunder to the extent that performance of such obligations are delayed, hindered, or prevented by force majetrre. Force majeure shall be any cause beyond the control of the parties hereto which they could not reasonably have foreseen and guarded against. Force majeure shall include, without limitation, acts of God, strikes, lockouts, fires, riots, civil commotion or civil unrest, incendiarism, interference by civil or military authorities, compliance with the regulations or orders of any governmental authorities which were not in effect at the time of the execution of this Agreement, and acts of war(declared or undeclared). 28. PARTY REPRESENTATIVES: For purposes of this Agreement the following persons or their designees shall act as party representatives: McCall Redevelopment Agency: Rick Fereday, Chair, or his designee City of McCall: Robert S. Giles, Mayor, or his designee Artist: Amy Westover, Westover Artworks LLC MRA Artwork Commission Agreement-Westover Page 10 of 13 7/21/2020 29. SUCCESSORS AND ASSIGNS: All of the terms, provisions, covenants and conditions of this Agreement shall inure to the benefit.of and be binding upon each party and their successors, assigns, legal representatives, heirs, executors and administrators. 30.NOTICES: Written notices to the Parties shall be given by registered or certified mail,postage prepaid, and addressed to said parties at the addresses below, unless otherwise designated by written notice to the other parties: Redevelopment Agency City of McCall Artist—Amy Westover 216 E. Park St. 216 E. Park St. 4813 River Road McCall, ID 83638 McCall, ID 83638 Buhl, Idaho 83316 All such notices, except as otherwise provided, may either be delivered personally deposited in the United States mail, properly addressed with postage fully prepaid by certified or registered mail, return receipt requested, and shall be effective five (5) days after deposit in the mail. IN WITNESS WHEREOF, the Artist,Agency and City do execute this Agreement the day and year first above written. 'C'�'T Y Off` CITY OF MCCAL'L, IDAHO: ZZ y w M � r y: AT Robert S. Giles °'e, �,t{IP64 eIsi ®"`Wa Mayor ''914c1 lerk STATE OF IDAHO ) ss: County of Valley ) On this 9C—j day of�u�� ,2020,before me,the undersigned Notary Public, in and for said State, personally appeared OBR appeared S. GILES and BESSIEJO WAGNER, known to me to be the Mayor and City Clerk of the City of McCall, a municipal corporation of the State of Idaho, who executed the within instrument, and acknowledged to me that such city executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. EE RAH EDSON LIC-STATE OF IDAHO N NUMBER202W1 Notary Public for Idaho ( ION EXPIRES 1-10.2026 n' Residing at: McCall, Idaho MRA Artwork Commission Agreement-Westover Page 11 of 13 7/21/2020 URBAN RENEWAL DISTRICT OF THE CITY OF MCCALL aka MCCALL REDEVELOPMENT AGENCY: By: Rick ereday McCall Redevelopment Agency Chair STATE OF IDAHO ) ss: County of Valley ) On this 00 day of vk ,2020,before me,the undersigned Notary Public, in and for said State, personally appeared RICK FEREDAY, Chair, McCall Redevelopment Agency, who executed the within instrument, and acknowledged to me that such Agency executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. (SE Notary Public for Idaho SARAH EDSON Residing at: McCall, Idaho NOTARY PUBLIC-STATE OF IDAHO COMMISSION NUMBER 20200108 MY COMMISSION EXPIRES 1-10.2026 MRA Artwork Commission Agreement-Westover Page 12 of 13 7/21/2020 ARTIST: By: Amy estover Wes over Artworks, LLC STATE OF ) ss: County of -WI h " ) On this aS day of T ,2020,before me,the undersigned Notary Public, in and for said State, personally appealed d AMY WESTOVER,known to me to be the manager of ARTIST, who executed the within instrument, and acknowledged to me that such limited liability company executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. ww'' ,,ww boA'� ��A " f --(SEAL-)— -- _ __Notary-P-ublic_for-Idaho_— Residing at: `W Uz , Idaho DANIELALIMASP, ►CS. (��I���I�3 NOTARY PUBLIC STATE OF IDAHO Comm.No.20170808 MRA Artwork Commission Agreement-Westover Page 13 of 13 7/21/2020 FIRST AMENDMENT TO ARTWORK COMMISSION A GREEMENT By and between THE MCCALL REDEVELOPMENT AGENCY, THE CITY OF MCCALL And WESTOVER ARTWORKS,LLC THIS FIRST AMENDMENT TO AGREEMENT("Amendment")is made and entered into by and between the Urban Renewal Agency of the City of McCall, Idaho, also known as the McCall Redevelopment Agency, an independent public body corporate and politic (hereafter"Agency"), the City of McCall(hereafter"City"), a municipal corporation of the State of Idaho,and Westover Artworks,LLC, an Idaho limited liability company (hereafter "Artist"). The Agency, City and Artist may be referred to herein collectively as the"parties" or each a "party" as the case may be.' The "Effective Date" of this Amendment is the date last signed below by all parties. RECITALS WHEREAS, the parties entered into that certain Artwork Commission Agreement dated July 28, 2020 ("Agreement"),for the purpose of planning, design, fabrication, and installation of artwork for placement within what is commonly referred to as the Lakefront Project Area,established by the 1990 Urban Renewal Plan for the Railroad Avenue Area, by City Council Ordinance No. 578 on December 13, 1990, and as amended by Section 900 of the Railroad Avenue Plan referred to as the 2006 Updated Urban Renewal Plan (collectively the Plan, as amended is referred to as the "Railroad Avenue Plan"), (hereafter the Lakefront Project Area may be referred to as the"District"),all based on the recitals and terms and conditions as more particularly described in the Agreement; WHEREAS,on February 18, 2020,the Agency allocated funding for development of a public art plan and public artwork within the District in an amount not to exceed$100,000; WHEREAS, the Agreement provides for the amount for the Work to not to exceed$100,000; WHEREAS, the Artist has completed the scope of services described in section 2(a) and 2(b) of the Agreement and received compensation totaling$15,000 as described in 4(a) and 4(b)in the Agreement; WHEREAS, the Agency approved commission of the Mill Whistle public art design proposal described in Exhibit A(the"Work")on December 15,2020 and the City approved commission of the Work on January 28,2021; WHEREAS,the Agency allocated an additional$45,000 to the project for procurement of steam generation equipment necessary to complete the Work on December 15,2020; and WHEREAS,the parties desire to amend the Agreement to document the approved design for the Work and to increase the amount for the Work under the Agreement, based on the terms and conditions contained herein. First Amendment to Artwork Commission Agreement-Westover Page I of 6 5/4/2021 AGREEMENT THEREFORE, for valuable consideration, the sufficiency and receipt of which is acknowledged by the parties,the parties agree as follows: 1. SCOPE OF SERVICES: The parties agree and acknowledge that the final conceptual design for the Work has been approved by the Agency and City under Section 2 of the Agreement,and the final approved conceptual design is attached as Exhibit A to this Amendment. 2. COMPENSATION: Section 4 of the Agreement is amended as follows: a) The not to exceed amount of$100,000 stated in the first sentence is deleted and is replaced with$145,000; and b) The amount of$80,000 for fabrication and installation stated in subsection(c)is deleted and replaced with$125,000. 3.MISCELLANEOUS: Any capitalized term not defined in this Amendment will have the same meaning as in the Agreement.The recitals and exhibit are incorporated into this Amendment and made a part hereof. This is the entire agreement of the parties relating to the subject matter hereof and can only be modified or amended in writing by the parties. Except as modified herein, the Agreement remains in full force and effect. In the event of a conflict between this Amendment and the Agreement,the terms and conditions of this Amendment will control. [End of Text; Signatures to Follow] First Amendment to Artwork Commission Agreement-Westover Page 2 of 6 5/4/2021 EXECUTED EFFECTIVE as of the Effective Date. AGENCY: CITY: URBAN RENEWAL AGENCY OF THE CITY CITY OF MCCALL, IDAHO OF MCCALL, IDAHO, a/k/a MCCALL REDEVELOPMENT AGENCY l! By: Rick Fereday,--Agency 0air By: Robe S. Giles,Mayor Date Date ATTEST: VA BessOo W er,City lerk ARTIST: WESTOVER ARTWORKS,LLC, an Idaho limited liability company By: Amy Westover,Manager Date First Amendment to Artwork Commission Agreement-Westover Page 3 of 6 5/4/2021 EXECUTED EFFECTIVE as of the Effective Date. AGENCY: CITY: URBAN RENEWAL AGENCY OF THE CITY CITY OF MCCALL,IDAHO OF MCCALL, IDAHO, a/k/a MCCALL REDEVELOPMENT AGENCY By: Rick Fereday, gency Q tair By: Robe S. files,Mayor Date` Date ATTES41�,*er Bessiiity Jerk ARTIST: WESTOVER ARTWORKS,LLC, an Idaho li liability company By:/11411zP�r y estover,Manager & a Date First Amendment to Artwork Commission Agreement-Westover Page 3 of 6 5/412021 STATE OF IDAHO ) :ss County of Valley ) On this 5 day of Nay ,2021,before me,the undersigned Notary Public,in and for said State, personally appeared •@ve-4 Chair, McCall Redevelopment Agency, who executed the within instrument,and acknowledged to me that such Agency executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. SARAH EDSON (SEAL) NOTARY PUBLIC-STATE OF IDAHO COMMISSION NUMBER 20200108 MY COMMISSION EXPIRES 1-10-2026 Notary Public for Idaho Commission Expires: l— 1p— 202 C Residing at: McCall,Idaho STATE OF IDAHO ) :ss County of Valley ) On this��day of ,2021,before me,the undersigned Notary Public,in and for said State,personally appeared ROB _RT S. GILES and BESSIEJO WAGNER,known to me to be the Mayor and City Clerk of the City of McCall, a municipal corporation of the State of Idaho, who executed the within instrument, and acknowledged to me that such city executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. SARAH EDSON (SEAL NOTARY PUBLIC-STATE OF IDAHO COMMISSION NUMBER 20200106 Notary Public for Idaho MY COMMISSION EXPIRES 1.10.2026 Commission Expires: Residing at: McCall,Idaho First Amendment to Artwork Commission Agreement-Westover Page 4of6 5/4/2021 v STATE OF -p C :ss County of On this (2� day of 2021,before me,the undersigned Notary Public,in and for said State, personally appeared AMY WESTOVER, known to me to be the manager of Westover Artworks,LLC,who executed the within instrument,and acknowledged to me that such limited liability company executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. (SEAL) hjv Notary Public for Idaho. Commission Expir s: 6p, DANIELA LIMAS Residing at: 33/(0, NOTARY PUBLIC STATE OF IDAHO Comm.No.20170808 First Amendment to Artwork Commission Agreement-Westover Page 5of6 5'4/2021 EXHIBIT A APPROVED FINAL CONCEPTUAL DESIGN OF THE WORK [10 pages attached] First Amendment to Artwork Commission Agreement-Westover Page 6 of 6 5/4/2021 EXHIBIT A M I LL WH I STLE : SOUND OF AN ERA Public Art Proposal for Brown Park McCall Idaho It*W- 9.4��"t`�' .rar'�y. ��L��.��++�-.•`` __C.- `f ��'�''��+��� x, •1 •�pi.� i �ti rr,�` #, v [ . ' :^'t„�*^"'*t•f�� 1.1 I'+�� t.T y .r.i.�•i� .r�,.��' �` .��� """' �---�'�b..i►"'-'.i`_`T,�,�ty.r.�++s�.j 6 w J '' i• • • • • ° • • • • • y t CI The salvaged mill whistle is not only a historic artifact to McCall but these whistles are treasured, collected, and restored throughout the US as symbols of a bygone era. The sounds produced by the whistles are a unique wa q Y of audibly recalls h•bl recalling the a w x The whistle was a daily time keeper for industries like lumber mills and factories.The whistle blow often became revered by the townspeople and they missed the sounds when the whistles stopped. The Sinker Davis Co. ` 4 manufactured the whistles and called them gongs.There are two bells, one on each side of the valve chamber.The bells create a two tone harmony; a deep resonant sound rather than a piercing shrill. The restored whistle in this example shows the original I ' black finish, the valve and lever that allows steam to enter the whistle, and the . raised lettering of the Sinker "� Davis Company name. , _.� • - 1',•.,. •' .. � - , --' � , ski L���ir r���� ,,.y. ,r;�f�rr - _ / j�� �Z! IA 1 -_ A f. _ - 1�'• — ` Ml� �cw'- -JIL ;;� ,' , "� t•,;'+,� `,:+ -_ -.�•,_ _�'},g �,�{,�.�,� ire 4� it t y •Y�� "f t/l..-�yp.l`a���� r�.I.. = CA ������`'1` �1 -4' •.V\ i t.to.• / I a i;\ � ..,, kd i. ,i, I„i e 5. r1. r111 1r1i ,',r �r:',1 ` . �,f.. - 6- ,-,r, '��:�� �C��„f. �.+ `�'�. i , -., �� i •� 1. , ,, )�, .,.t�. ,Ili.��. ,1. Il ,i ,.r;.r r,<f i4,,• .y. � .' .+1� r.1� - h V" n'ai+. r 1 I, �f �j V { ' t ;�� ` 1'i - •`�,\tab +4�,}1,y +' �' �`�-L���1„ri.Y rc =,fit x �a�.'• .�,�•.�2cW �' � .F ,#� ����� i' ;1it��,1.��.�. ril�` F rl l•`,"'114 •�rl' '•1,�'r 1ptt.1,�`� � .�: tr�A S��'1� 1 11 �)�,�- 'S"��� �;, .,'►.,� _�'`�,. � � ,. '� .��4 .�� ,:, .1.�� 1 � � 1, '► ,� � ,� o .���,���.: �;��...;; L �� - � �Z-= —`'i���:L...4�' ' � ,r_i i',�' �.i�}r�',,���r •.1�1'`�'�21, .f;;I,� r��'• ,-.�,i-, ,t> �+rz ��(V;�,4jr_ .r�����• ° �. LrlY_ �j K -- "t r - _ -mom_ �-. _._ '"•�y 'f '� i�� `t �� 1t� - Lt may,,. ps �W k,yJ MiK rya!r• '@�)tl !•��`x L �Y .. w ' - _- --- _ _ - - - - I •_ -" --•` _ --- i - — - .� l+J''111C.�T`��fti r !'jrl y i_(< r � - • - • • di8A r� n� y'yl„�,4p ri tr°!.E�� �+. fir• • - - • -• - - - - _ - - • •` — - ___ — - - = 1!'��{i tr, �!���3.;��C,✓,�_F''`-chi, :�!'` - _ N Eli _ - _ �+ It •j. r�:h��41,,�:!• 1�j-,J���t'�ie, �� • ry ir vq so Y Atiyc;i ��1�1• ,ti ky,y r y: • - - f _. + '� -A+".'�'fin+� �`�.e'�4+s y. i j:i. 'ti's • • •- • • � " � �4 f 4.h ,.{ + .; .i F• ,1�. er 1 1+. � •tni`i�I`yR E.�\ `,1 • ' ` � ~ , +'1' .L •,,� tRl'\1�..',�r.�. Yam- r � - •• -• • • - • i''-" _ .,:._ r i `� F'1.1 1. '`r 'i'A �.%� r� `�'�,y}-v- ��1' C.�J • • •- •-• Yi_ T -•-, 1 -77 it t i.,t aS' 1 r•," t irs�t a � t ', 'S'S�� ,!yt', ' r 1r � t '���� .7 t 4+ , v`,��i``'\�I ti'�'�l} ` �}i q��'���hit \ � I �:s .i • ly�' ��.N���H'3�y„?'C ..n. .+I �, 'i,.�l, \\�^.A,1'�F,�1��\fit,' �� it 'F,,������^ .T,1 �! - +e,f•�9`\ !`}.:t at yr � . a�T v y F Y; =_ Restoring the whistle is necessary before creating the sculpture. Part of the restoration is to test the whistle with steam and ensure it functions properly or if it is in need of any repairs. The example shown here is a restored 12" Sinker Davis whistle on display at a steam whistle convention. McCall's whistle is a 8'' whistle. Allowing the whistle to blow with steam again would OT be a spectacular visual display. Not only would you - have the sound but the visual dynamic of the steam would be very impressive and would best represent the historical significance of the site and the whistle. However, steam requires that the proper safety precautions are taken with the equipment, with the public and operators of the whistle while it blows. We are working with Anacortes Steam to build the boiler. The design and function of the boiler is important to the success of the project. The visually stunning look of the boiler fits with the period and complements the sculpture and whistle as a cohesive public art - - - - T project" In addition to the boiler an accumulation tank is necessary to build up the appropriate volume of steam to blow the whistle. (more about the accumulation tank on the following page) - Anacortes Steam has built 150 handmade boilers that have been in continuous use without any issues or problems. Steam boilers and + � other steam projects can be viewed at the You Tube link below: r' https://www•youtube.com/watch?v=DZmRCI<b2DX4 - 7 Boiler Specifications: Gr Steel pipe standard A53B pipe 3/8 thick s w Steel plate ASTM A36 3/8"thick Internal Copper tubing 1 1/2 dia. Type L hard copper tube MIG welded, - .;"' :pia• _ (A documented pressure test can be performed if needed) • A The long term vision for the public art is to have the steam •F^ J} LF equipment on visual display near the sculpture at Brown Park. This would be a way to fully commemorate the history of the mill and provide an educational opportunity about the power of steam and how it has been used in the past. In order to realize the project at this time we are proposing to create a portable system. The steam boiler portion of the artwork would be mounted secure) to a trailer with the specific purpose Y P P Pose of pulling up next to the sculpture and easily connecting to the steam infrastructure that is art of the I p sculpture. When not is use at the park the trailer boiler would be housed and displayed at the Idaho Central Historical Museum. r CAGECode1XWD0 • :rr 00000 PRODUCTS INDUSTRIES TANKMATERIALS CAPABILITIES ENGINEERING GALLERY ABOUTUS REQUESTQUOTE BLDG to ressure Vessels Buckeye Fabricating has been an industry leader in the fabrication of custom pressure vessels since 1963.We Contact understand that pressure vessels can be hazardous,so our ; products are thoroughly inspected and tested from start to1-800-688-9821 or fill&send finish. We manufacture numerous tanks and vessels that are used in a '� ,ifdl. �i' First Name variety of applications and industries,such as Water Treatment, Pulp and'Paper,and Oil and Gas,among others.Common pressure vessels include: ti Last Name >Blown down tanks - ---- - -- - >Flash tanks >Condensate tanks Company Name • >Separator tanks - >Expansion tanks - Email Address •3 �� Building to The ASME Pressure -- --- - Vessel Code Phone Number Our engineering design team has extensive industry knowledge as well as a deep understanding of - American Society of Mechanical Engineers(ASME)Code.All of our ASME pressure vessels and process pressure tanks are made-to-order.Our knowledgeable team will integrate your project needs with their Message, j engineering expertise to deliver an ASME compliant,high quality,custom pressure tank that is creative) —- - 9• 9 P P 9 9 tY. P Y designed to meet your special requirements. Our track record demonstrates our commitment to building safe,durable,custom pressure vessels and tanks.Buckeye Fabricating is a name you can trust.Give us a call today. The accumulation tank is a pressure vessel that.stores the volume of steam needed to blow the whistle for several seconds at a time. The tank could be installed permanently inside the sculpture itself. An access panel would be designed into the sculpture to allow connectivity. Alternatively the tank could be mounted onto the trailer with the boiler. Both options are being explored at the moment for feasibility, Shown above, Buckeye Fabricating is a manufacturer of custom built ASME code pressure vessels, We have been in conversations with Buckeye's sales and engineering team to design a pressure vessel for this specific project's volume and PSI requirements. It would look similar to the project on the right. The vertical nature of the tank would fit inside the sculpture. Alternatively, if a certified ASME tank is not required, a custom made tank can be fabricated by Anacortes Steam in the same style as the boiler. A handcrafted tank could undergo a documented pressure test to ensure proper construction and PSI capacity. Safety and long-term considerations We are proposing to blow the whistle four times a year on certain important dates that the community will help choose. The fourtimes it will blow does not require a steam generating system that is meant for full time use.The equipment needs to be sized correctly to blow the whistle and safety precautions are of the utmost importance. For the viewing public, a safe distance away from the sculpture and boiler needs to be established for the whistle event. Proper connection of the boiler, accumulation tank and whistle will have to be followed. Ongoing safety precautions have to be taken each time the whistle is used and proper maintenance must be practiced before putting the whistle and equipment "to sleep" between blows. This project is a long-term, hands-on art piece that is certain to be cherished by residents and visitors of McCall. In my research it is clear that these whistles,the ones still in use or that have been restored, are treasured.The mill whistle is a special thing. This project will not only be a new signature public artwork for McCall, but will also begin a new town tradition;the whistle sound ushering in a new era from the remains of a past one.