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2434 ORDINANCE NO. 913 1 AN ORDINANCE WAIVING COMPETITIVE BIDDING FOR THE PURCHASE OF A LARGE-SCALE THREE DIMENSIONAL PUBLIC ARTWORK USING THE EXISTING WATER TOWER STRUCTURE AT 557 EAST BROADWAY, APPROVING AN ARTIST RETENTION AGREEMENT WITH RANDY WALKER d/b/a WALKER DESIGN STUDIO, LLC, AND FOR OTHER PURPOSES. WHEREAS, Arkansas Code Annotated Section 14-58-303 authorizes the waiving of competitive bidding in exceptional situations where competitive bidding is deemed not feasible or practical; and WHEREAS,the City of West Memphis, working with Main Street West Memphis, Inc., desires to acquire a large-scale three dimensional public artwork using the existing water tower structure at 557 East Broadway in West Memphis; and WHEREAS,the City Council determines that competitive bidding should be waived for the reason that the project consists of an artistic creation and competitive bidding under such circumstances would not be feasible or practical; and WHEREAS, funding for the project is to be provided by a portion of sales tax revenue which is specifically designated by Ordinance 1257 for revitalization and to "start a positive, funded development of Broadway, (one block at a time if necessary) as well as Missouri or other areas." NOW, THEREFORE,BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WEST MEMPHIS,ARKANSAS THAT: SECTION 1. Competitive bidding is hereby waived for the creation, fabrication and installation of a large-scale three dimensional public artwork using the existing water tower structure at 557 East Broadway in West Memphis, for a total cost of$241,800.00. This item to be purchased from Randy Walker, d/b/a Walker Design Studio, LLC. SECTION 2. The attached Artist Retention Agreement between the City of West Memphis, Arkansas, and Randy Walker, d/b/a Walker Design Studio, LLC, is hereby approved and the Mayor is hereby authorized to execute the agreement on behalf fo the City of West Memphis. SECTION 3. All Ordinances or parts of Ordinances in conflict herewith are hereby repealed. PASSED AND APPROVED this 6+k day of , , 2017. WILLIAM H. JOHNS N, MAYOR ATTEST: PHILLIP PARA, CITY CLERK SPONSORED BY: RECEIVED City Clerk's Offibe Date/Time 3-3 -1 7 By 0 ) -- — Ordinance No. Page Two ARTIST RETENTION AGREEMENT THIS ARTIST RETENTION AGREEMENT("Agreement") made this the day of , 2017 by and between The City of West Memphis, Arkansas (hereinafter called the "Contracting Agency"), and Randy Walker D.B.A Walker Design Studio LLC,3616 26th Avenue South, Minneapolis MN 55406, (hereinafter called the "Artist"). Contracting Agency and Artist are referred to collectively hereinafter as the "Parties" and each separately as a "Party." WHEREAS, the Contracting Agency, through an Art Selection Panel, solicited a concept proposal for the design,fabrication, and installation of a public art piece located at the Broadway Water Tower, 557 E. Broadway, WM, AR 72301 (the "Project"), and the Artist submitted such a design concept proposal. WHEREAS, the Contracting Agency approved of the conceptual proposal submitted by Artist (the "Concept") and selected the Concept for funding, contingent upon preparation and execution of a mutually satisfactory artist retention agreement between Contracting Agency and Artist. NOW, THEREFORE, for and in consideration of the promises contained herein, payment of the Fee (as described below) to the Artist, and other good and valuable consideration (the sufficiency of which the Parties hereby acknowledge), the Parties do hereby agree as follows: 1. Representatives of the Parties Deborah Abernathy(dabernathy@broadwaywestmemphis.com), 231 E. Broadway, West Memphis, AR 72301, shall be the Contracting Agency Representative in all matters regarding the administration of the Agreement and will be the primary contact between the Contracting Agency and all parties involved in the Project. The Contracting Agency Representative will be the primary contact between the Artist and the Contracting Agency with respect to the Project. The Artist, Randy Walker, randywalkerarts@gmail.com, agrees to work with, and to cooperate fully with, the representatives identified above to implement the Project in accordance with this Agreement. 2. Description of Project Work The Artist shall create, fabricate and install a large-scale three-dimensional public artwork using the existing water tower structure (the "Artwork") at 557 E. Broadway, West Memphis, AR 72301, described by the water tower structure in its entirety and the base area bounded by four (4) existing concrete footings (the "Site").The Artist shall use the existing water tower in its existing condition and make alterations to the existing structure as required to accommodate the Artwork. In addition, the Artist will create a schematic site design for the base area of the tower that relates the Artwork in concept and material. The title for the Artwork will be determined by the Artist in consultation with the Contracting Agency. 1 Am. Dimensions: The Artwork shall utilize the any or all of the existing water tower structure, including the conical roof,water tank and surrounding catwalk, steel truss support legs, and foundations. The Project shall include (1,050) 142' length cable assemblies suspended from custom steel armature attached to existing roof overhang of water tower by brackets bolted to tower roof overhang. Approx. 200-300 circular ornamental medallions are to be mechanically attached to cables at determined points. Suspended cables are assumed to be stainless steel 7x19 3/16" diameter at a density of approx. (1) cable per inch around the circumference of the tower roof.The support armature will be fabricated of separate sections of rolled steel tube, galvanized and/or stainless. Cable assemblies to terminate into custom anchorages located at base of water tower. The installation is to include a lighting element to artistically accentuate the tower and artwork at night. Theme: The Artwork as designed by the Artist shall be informed by the idea of transforming a historic local icon without fundamentally altering the structure itself. The Artist shall draw on themes of local history to inform the design of the Artwork. Medium: Stainless steel, galvanized steel, wire cable, aluminum, concrete, lighting. Site Work: The scope of this Agreement includes construction of new footings relating to cable anchorages or fastening systems integral to the Artwork.The Artist shall be responsible for repair of damage caused by installation and construction of the Artwork. The Artist shall not be held responsible for any damage, decay or material replacement or restoration not caused by installation of Artwork. As part of this Agreement, the Artist agrees to collaborate with the Selection Panel to develop a conceptual landscape/site design for a seating area for future implementation by the Contracting Agency. The entirety of the above work of Artist is hereafter referred to as the "Work". The art and related elements are hereafter referred to collectively as the "Artwork." The Artist is responsible for the specification, installation and cost of all required elements relating to the Artwork included as part of this Agreement listed above, as well as all related construction costs, including materials, engineering, fabrication, subcontractor fees, insurance, sales tax, transport of materials, and all travel related expenses. 3.Approval Process The Artist shall create a proposal for both the Artwork and the Site and present such proposals to the Art Selection Panel. The Art Selection Panel may request revisions for the Artwork before issuing final acceptance. 4.Standards of Performance The Artist will visit the Site, become familiar with the local conditions under which the Work is to be installed, and will correlate the Artist's observations with the Contracting Agency. The Artist will insure that all applicable codes and safety standards are met in the fabrication and 2 installation of the Artwork. All structural elements of any component of the Artwork will be engineered (or reviewed and approved) by a structural engineer of the Artist's choosing that is licensed by the State of Arkansas. 5. Changes in Design The Artist shall create and install the Artwork in accordance with an approved design. Recognizing that the shift in scale from model to full scale requires artistic adjustments, the Artist reserves the right to make minor changes in the final Artwork as is deemed aesthetically or structurally necessary. The Artist shall notify the Art Selection Panel in writing of revisions or additions to the Artwork that result in changes to the project budget in the Agreement. The Art Selection Panel shall review such additional costs and provide timely notification to the Artist to proceed or not. Should design revisions result in a change of budget, the Artist shall submit an Addendum to this Agreement to the Contracting Agency Representative for approval by the Art Selection Panel and/or appropriate members of the Contracting Agency. The Artist shall not proceed with work related to the revision until approved by the Contracting Agency. 6. Permanent Location The permanent location of the Artwork shall be: 557 E. Broadway, West Memphis, AR 72301 7. Price and Payment Schedule The Contracting Agency will pay the Artist a total sum (the "Fee") of two hundred and forty-one thousand eight hundred dollars and no cents ($241,800.00) for the Artwork, through a series of partial payments, as described below: 5% ($12,090.00) upon signing of this Agreement by all necessary parties (the "Initial Payment"); 5% ($12,090.00) upon completion and approval of the construction documents certified by structural engineer and electrical engineer for the Artwork; 25% ($60,450.00) upon submittal and approval of construction schedule and revisions to construction documents based on bids in order to allow purchase of materials and initiate fabrication; 20% ($48,360.00) upon completion and approval of 50%completion of Artwork fabrication; 20% ($48,360.00) upon 50% completion of the required installation of Artwork on site; 20% ($48,360.00) upon 100% installation of the Artwork in its permanent location at the Site; and 5% ($12,090.00) upon completion and final acceptance of the installed Artwork by the Contracting Agency and the receipt from the Artist of maintenance instructions as referred to in this Agreement (the "Final Payment"). 3 To receive payments subsequent to the Initial Payment, the Artist shall submit a billing or invoice to the Contracting Agency when each of the stages outlined above have been reached, and will include photo documentation of site elements with the invoice. Payments will be made to the Artist within 30 days of the invoice date. The Contracting Agency shall at reasonable times and with reasonable advance notice have the right of entry to the premises where any of the Work is being performed and/or where materials for the Artwork are stored for purposes of inspecting the Work and materials; and for recovering any of the Artwork or materials in the case of default by the Artist under this Agreement. 8. Final Acceptance Final acceptance will occur when the Contracting Agency indicates in writing that the Artwork has been completed and installed according to terms of this Agreement. Official sole ownership of the Artwork by the Contracting Agency occurs when a letter of final acceptance is sent by the Contracting Agency to the Artist. This letter will initiate the final payment process, and the Final Payment will be made within thirty(30) days of the date of final acceptance. 9.Assignment of Work The Work and all services of the Artist rendered under this Agreement are personal and shall not be assigned, sublet or transferred. This shall not prohibit the Artist from employing qualified personnel who shall work under the Artist's supervision. 10.Artist as Independent Contractor The Artist agrees to perform all work under this Agreement as an independent contractor and not as an agent or employee of the Contracting Agency. The Artist as independent contractor shall furnish (and pay for) all supervision, labor, materials, equipment, supplies, other incidentals, as well as storage, transportation, shipping and installation as needed for all elements of the Work. 11. Inspection and review The Contracting Agency shall have the right at reasonable times and with advance notice to review the Artwork while in the process of execution and to receive progress reports along with photo documentation. 12.Time Schedule Design: The Artist will begin work upon receipt of the First Payment. The Artist will produce Design Drawings in consultation with local contractors, suppliers, engineers and designers, conduct, and engage with Art Selection Panel public to solicit input.The Artist will prepare final construction documents for approval to the Contracting Agency by June 30, 2017. Schedule for Artwork Fabrication, Site Construction, and Installation: The Artist will begin work as early as July 30, 2017, and the Work will be completed no later than December 31, 2017. A more 4 detailed schedule will be established and agreed upon by all Parties and included as an amendment to this Agreement following the approval of the construction documents for the Artwork. The Artist may request an extension from the Contracting Agency to complete the installation due to weather or other unforeseen delays. If an extension is granted, a new installation date shall be agreed upon by the Parties in writing. The Artist shall notify the Contracting Agency immediately upon completion of installation of the Artwork. 13. Documentation and records Within of thirty (30) days of completing installation of the Artwork, the Artist shall furnish the Contracting Agency with documentation containing progress photos of the Artwork and final views of the installed Artwork, and shall provide a full written narrative description of the Artwork. Upon request by Contracting Agency, Artist shall present Contracting Agency with executed lien waivers for any person or entity that supplied materials and/or furnished labor to Artist in connection with the Work. 14. Public Notice The Artist agrees to provide Contracting Agency with information to be included on an identification plaque that will be fabricated and installed at the Site by the Contracting Agency (the "Plaque"). The written contents of the Plaque shall include at least the following information: Title of Artwork, Year, and Artist. It may also include a donor recognition listing or the commissioning agency may be listed should the Contracting Agency so desire. 15. Warranty The Artist agrees that the design of the Artwork shall be, and will be warranted by Artist to be, the original product of the Artist's own creative efforts. The Artist warrants that the Artwork is an edition of one (1). The Artist agrees to deliver the Artwork to the Contracting Agency free and clear of any liens, encumbrances, and/or claims of any kind arising from any source whatsoever. The Artist agrees the Work will be warranted as being free of defects for a period of one (1)year following installation. 16. Indemnity and Liability The Artist shall, at the Artist's own cost and expense, defend and indemnify and hold harmless the Contracting Agency, its members, managers, affiliates, officers, agents, and employees, from and against all claims, damages, losses, and expenses including attorneys' fees, arising out of or resulting from the performance of this Agreement, provided that such claim, damage, loss or expense (1) is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property, including the loss of use thereof, and (2) is caused in whole or in part by any negligence, act, or omission of the Artist, anyone directly or indirectly employed by him/her, or anyone for whose act he/she may be liable, except to the extent that it is caused in 5 part by the Contracting Agency, their officers, agents, or employees. The Artist further agrees to defend, indemnify and hold harmless the Contracting Agency, its members, managers, affiliates, officers, agents, employees, from and against any claims or liens of the Artist's subcontractors, and his/her and their laborers, materials, employees, mechanics, and suppliers. Such obligation shall not be construed to negate or abridge any other obligation of indemnification running to the Artist that would otherwise exist. The extent of the indemnification provision shall not be limited by any provision for insurance contained in this Agreement. 17. Insurance Upon the execution of this Agreement, the Artist shall provide the Contracting Agency with a certificate evidencing Comprehensive General Liability insurance in an amount not less than $1,000,000.00 and Automobile Liability insurance in an amount not less than $300,000 combined single limit for each. Said certification shall name any subcontractors employed by the Artist and shall guarantee the Contracting Agency thirty (30) days written notice prior to cancellation. 18. Compliance with Laws In the performance of the Work, the Artist shall comply with all applicable federal, state, and local laws, ordinances, rules and regulations. 19. Copyright The Artist expressly reserves every right available to him/her in common law or under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Artwork, except as those rights are limited by the Agreement; provided, however, that the Contracting Agency, its successors and assigns, may use photographs, drawings, renderings and other derivatives of the Artwork in its promotional materials and in fundraising activities related to the purposes for which the Contracting Agency was formed. The Contracting Agency may otherwise reproduce the Artwork graphically for purposes for the sole use and benefit of the public only with the prior written consent of the Artist, which consent may not be unreasonably withheld, conditioned,or delayed. All reproductions of the Artwork shall contain a credit to the Artist and copyright notice substantially in the following form: "Copyright, Artist's name, year of publication," in such a manner and location as shall comply with the U.S. Copyright laws. 20. Non-Destruction/Alteration The Contracting Agency agrees that it will not intentionally destroy or alter the Artwork in any way whatsoever without prior consultation with the Artist. 21. Maintenance As a condition of and prior to final acceptance of the Artwork, the Artist shall supply the Contracting Agency with written maintenance instructions, including specifications, drawings, 6 and contact information for any applicable vendors or supplies. During the Artist's lifetime, the Artist shall supply, at no charge, advice as to problems arising in relation to maintenance of the Artwork. 22. Repairs The Contracting Agency shall make every reasonable effort to consult with the Artist and a professional conservator in all matters concerning repairs and restoration of the Artwork. All restoration work shall be done in accordance with the Code of Ethics and Standards of Practice of the American Institute of Conservation (AIC), 3545 Williamsburg Lane, NW, Washington, DC 20008. 23. Relocation The Artwork shall be placed in the location for which it was selected at the Site. The Contracting Agency agrees that the Artist will be notified if, for any reason, the Artwork has to be removed or moved to a new location. The Artist has the right to advise or consult with the Contracting Agency or its designee, regarding this treatment of the Artwork. 24. Ownership of Documents and Models Drawings, specifications, and models of the Artwork, or which relate to the Artwork including all preliminary studies, shall be the property of the Artist following completion of the Work under this Agreement or following termination of the Agreement by the Contracting Agency without fault on the part of the Artist. Under these circumstances such materials shall not be used by the Artist on other projects or extensions of this Project except pursuant to a subsequent agreement in writing between the Artist and the Contracting Agency. 25. Notice The Artist agrees to notify the Contracting Agency of changes in his address within ninety(90) days of that change and failure to do so shall be deemed a waiver of Artist's rights listed in this Agreement. All communications and notices required or permitted under this Agreement shall be in writing and shall be deemed sufficiently served if hand delivered or if sent by Email or First Class Mail. Copies of all communications shall be sent to the Contracting Agency via Deborah Abernathy: dabernathy@broadwaywestmemphis.com. 26.Termination This Agreement may be terminated by the Contracting Agency or Artist upon written notice in the event of failure by either Party to perform in accordance with the terms of this Agreement. 7 Nothing herein shall abrogate any claims that the Contracting Agency may have against the Artist for failure to perform in accordance with this Agreement, including any claim for reimbursement of funds advanced to the Artist under section 7 above. 27. Non-Waiver Except as expressly provided in this Agreement, no failure or waiver or successive failures or waivers on the part of either Party hereto, their successors or permitted assigns, in the enforcement of any condition, covenant, or article, shall render the same invalid, nor impair the right of either Party hereto,their successors or permitted assigns, to enforce the same in the event of any subsequent breaches by the other Party hereto, its successors or permitted assigns. 28. Modification of This Agreement/Other This Agreement represents the entire agreement of the Parties and may be amended or modified only if in writing and signed by the Parties. Each Party represents and warrants that there have been no inducements, representations or agreements from the other causing, affecting, or in connection with this Agreement or the transactions contemplated hereby, except as expressly set forth in writing in this Agreement. Each Party has undertaken such independent investigation and evaluation as it deems appropriate with respect to this Agreement. The recitals set forth at the beginning of this Agreement are incorporated into the body of this Agreement as if they were set forth herein in full. This Agreement shall be governed by and construed in accordance with the laws of the State of Arkansas, exclusive of the principles of conflicts of laws contained therein, and the Parties agree that the forum for any legal proceeding relating to this Agreement or the obligations of the Parties under this Agreement shall be the District or Superior Court for Crittenden County, Arkansas, or the United States District Court for Arkansas (and, for purposes of appeal,the appropriate appellate courts corresponding thereto). If any provision to this Agreement is held to be invalid or unenforceable under any present or future laws, such provision shall be fully severable, and the remaining provisions shall constitute the Parties' agreement. This Agreement may be executed and delivered in multiple counterparts, and all counterparts so delivered and executed shall constitute one and the same instrument, and be enforceable as such. 8 IN WITNESS WHEREOF, the Parties have entered into this Agreement, as evidenced by the signatures of their authorized representatives below. Contracting Agency Authorized Signature Date Name and Title of authorized representative Address City State Zip Witness Signature Date Witness Name 9 Artist —1c1-4n • Authorized Signature Date 3/2/2017 Name and Title of authorized representative_ Randy Walker, Artist Address City 3616 26th Avenue South State MN Zip 55406 Witness Signature Date Witness Name 10