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HomeMy WebLinkAbout25-0812 Ken Simonsen ARTIST AGREEMENT FOR CREATION AND TEMPORARY DISPLAY OF A WORK OF ART THIS AGREEMENT is made and entered into this 12th of August 2025, by and between the CITY OF ELGIN, Illinois, a municipal corporation ("City"), and _Ken Simonsen_("Artist"). WHEREAS, the City has determined that a beneficial public purpose will be served by en- tering into an agreement with the Artist to provide a grant to the Artist for the Artist to create and provide a work of art for temporary display on City Property as described in this Agreement; and, WHEREAS,the Artist represents that it has the necessary expertise and experience to cre- ate and provide the work of art and to otherwise perform the Subject Services upon the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: 1. The Artist shall create and provide the work of art known as jersey wall art_consisting of a _mural_, for temporary public display on City Property as described and in accord- ance with the terms of this Agreement (the "Artwork"). The specifications and design illustration for the Artwork are set forth in the document entitled " Ken Simonsen_, Scope of Services for Artist Agreement for Creation and Temporary Display of a Work of Art," attached hereto and made a part hereof as Exhibit A (the creation of and providing the Artwork and the services relating thereto, including terms, conditions, dates and times, are hereinafter referred to as the "Subject Services"). In the event of any conflict between the provisions of this Agreement and the provisions in Exhibit A hereto,the pro- visions of this Agreement shall control. The Artist represents and warrants that the Artist has the skills and knowledge necessary to create and provide the Artwork and conduct the Subject Services provided for in Exhibit A in a reasonable and workmanlike manner, and that the Subject Services set forth in Exhibit A are integral parts of this Agreement and may not be modified, amended or altered except by a written amendment to this Agreement agreed to and executed by both parties hereto. 2. The Artist shall address all inquiries and requests made pursuant to this Agreement to the City Manager or his/her designee. 3. In connection with any Subject Services to be performed on any property other than City- owned properties, the Artist warrants and agrees to maintain all facilities and equipment used in the performing of the Subject Services in a clean, sanitary and safe condition and free from defects of every kind whatsoever.Artist agrees and warrants that the Artist will periodically inspect, at reasonable intervals and with a reasonable degree of thorough- ness, all of such facilities and equipment for such purposes. Artist also warrants that the Artist and the Artist's facilities and equipment used in the performing of the Subject Ser- vices are not now, nor shall be during the term of this Agreement, in violation of any health, building,fire or zoning code or regulation or other applicable requirements of law. In connection with the Subject Services on properties owned or controlled by the City, Artist agrees and warrants to use, and to cause persons participating in the Subject Ser- vices to use,through proper and reasonable supervision and control, all facilities with due care, and to report all defects in or damage to any such facilities, and the cause thereof, if known, immediately to the City Manager or designee. 4. The City shall provide an honorarium to the Artist for the creation of the Artwork, the Subject Services and the temporary public display of the Artwork on City Property pursu- ant to this Agreement in the total amount of TWO THOUSAND AND ONE HUNDRED DOL- LARS $(2,100.00). Such payment by the City to the Artist shall be made on or before No- vember 30, 2025. 5. All grant funds for the Subject Services shall be expended by the Artist solely and only for the creation of the subject Artwork and the performance of the Subject Services between the entry into this Agreement and the installation of the Artwork by the Installation Date on the City's Property as described in this Agreement. All funds awarded pursuant to this Agreement shall be expended in accordance with the terms and provisions of this Agree- ment.The Artist shall apply the money to be paid by the City to the Artist pursuant to the preceding paragraph hereof solely to fund the creation of the Artwork and for the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this Agreement shall be used by the Artist for operating expenses or for any purchase of per- manent equipment, capital improvements, construction or for the payment of any previ- ous year's deficit. 6. Prior to entry into this Agreement, the Artist shall complete a Public Art Application in a form as required by the City. Following the completion of the creation and installation of the Artwork and the Subject Services,the Artist shall submit a final report that will include maintenance and lifetime care plans for the Artwork required by the City within forty-five (45) days of completion of the Subject Services, but no later than December 31, 2025. Without limiting the foregoing, the Artist shall also complete, maintain and submit to the City Manager or designee, any and all records, reports and forms relating to the Subject Services in this Agreement as may be requested by the City, including but not limited to, as follows: a. The Artist shall provide a budget to the City which shall reflect the projected distribu- tion of funds received from the City pursuant to this Agreement during the term of this Agreement. The budget shall be submitted to the City Manager or designee prior to any payment by the City. b. The Artist shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agree- ment. Such accounting records shall be submitted by the Artist to the City for review by the City's Fiscal Services Department within forty-five (45) days following the com- pletion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices and such other documentation as de- termined by the City to verify the performance of the Subject Services and/or grant 2 related receipts and disbursements. 7. In the event this Agreement is terminated, or in the event the Subject Services for which the City funds provided herein are to be applied are discontinued, or the Artist ceases its operations prior to the installation of the Artwork by the Installation Date on the City's Property, the Artist shall refund to the City any funds paid hereunder less any expenses incurred by the Artist in conjunction with the creation of the Artwork created pursuant to the Subject Services. 8. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Artist and shall receive the benefits of sponsorship consistent with the level of sup- port provided in this Agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Artist and the Artist's organization, press releases, radio advertising, web page information and event program(s) through the following mandatory funding identification statement: "Funding for the Artist/organization is provided in part through the City of Elgin and the Elgin Cultural Arts Commission." Three samples of this acknowledgement shall be pro- vided to the City. A logo provided by the City to the Artist shall be used for this purpose. 9. In all printed materials in which a City seal or logo is deemed appropriate, written ap- proval by the Public Information Officer of the City shall be required prior to printing. 10. The Artist shall complete the creation of the Artwork in accordance with the specifications and design illustration for the Artwork as set forth in Exhibit A attached hereto. If the City, upon review of the Artwork, determines that the Artwork does not conform to the specifications and design illustration for the Artwork as set forth in Exhibit A attached hereto, the City reserves the right to notify the Artist in writing of the deficiencies and that the City intends to withhold payment. The Artist shall have thirty (30) days to cure the City's objections and shall notify the City in writing of the completion of the cure. The City shall promptly review the Artwork, and notify the Artist in writing whether the City's objections have been cured. If the Artist disputes the City's determination that the Art- work does not conform, the Artist shall promptly submit reasons in writing to the City within thirty (30) days of the City's prior notification to the contrary. The City and the Artist agree to make reasonable efforts to resolve the dispute in good faith, however,final determination as to whether the Artist has complied with the terms of this Agreement shall remain with the City. The Artist represents and warrants that the Artwork and the materials used therein are not currently known to be harmful to public health and safety. The Artwork shall be completed by the Artist and installed on the City's Property as pro- vided for in this Agreement by Summer 2025-August/early September (the "Installation Date"). The Artwork will be installed on the City's Property commonly known as Jersey walls and various other concrete safety items AT downtown Elgin with the specific loca- tion on such City Property being depicted on the site plan included as part of Exhibit A attached hereto (the "City Property"). Subject to the City's rights to relocate, remove or destroy the Artwork as provided in this Agreement, the Artwork shall be on public display on the City Property for 2 years following the Installation Date (the "Public Display Pe- riod"). 3 11. The installation of the Artwork by the Artist on the City Property will be done in such a manner that insures the Artwork as installed shall not interfere with the intended use of the City Property, pedestrian and other traffic flow, parking, safety devices, or procedures and other needs and functions of the City Property as determined by the City. The Artist shall complete the fabrication,transportation and installation of the Artwork by the dates provided for in this Agreement. The Artist shall secure any and all required licenses, per- mits, and other similar legal authorizations at the Artist's expense that may be necessary for the installation of the Artwork at the City Property. The Artist shall arrange for the transportation and installation of the Artwork at the City Property in coordination with the City. If the Artist does not install the Artwork himself/herself,the Artist shall supervise and approve the installation. Prior to the installation of the Artwork, the Artist shall in- spect the City Property to ensure that it is ready to accept the Artwork. Artist shall notify the City of any perceived conflict or defect. All work shall be performed by qualified pro- fessionals and by licensed contractors as required by law. Artist shall provide a list of all subcontractors along with a copy of the agreement between the Artist and each subcon- tractor. If the Artwork is to be fabricated or constructed onsite, e.g. a mural painting to be painted on a wall of a City building, the Artist shall avoid creating nuisance conditions arising out of the Artist operations and shall not interfere with the City's intended use of the City Property. The Artist shall also provide the City a work plan for the City's approval identifying the area to be utilized by the Artist for the creation of the Artwork and a sched- ule for same. 12. The term of this Agreement shall commence from the date of the execution hereof and continue through December 31, 2028, unless otherwise terminated as provided for herein. 13. The Artist shall work with City to coordinate both the installation and de-installation at the predetermined location of the Artwork.The Artist shall provide the necessary staff to help with installation and de-installation, with City staff being present on site to ensure safety and correct protocols. The Artist may not install the Artwork on the property until authorized to do so by the City. 14. The Artist must retain property insurance on the Artwork created pursuant to the Subject Services during installation.The City will not retain insurance on the Artwork created pur- suant to the Subject Services during the public art's lifetime with the City. The Artist, at his or her discretion, shall insure the Artwork created pursuant to the Subject Services during its lifetime on display with the City. Should damage to the Artwork created pursu- ant to the Subject Services occur while on display, it shall be the responsibility of the Artist to cover all repair costs. Risk of loss or damage to the Artwork shall remain with and shall be born by the Artist at all times. In no event shall the City be responsible for any loss or damage to the Artwork. 15. Routine maintenance of the Artwork such as cleaning and polishing will be provided by the City. A maintenance schedule with listed needs shall be provided by the Artist to the City as part of the Subject Services. When additional maintenance is required that may 4 alter the Artwork created pursuant to the Subject Services, the City shall consult with the Artist before performing any such non-routine maintenance. The Artist shall take reason- able measures to protect or preserve the integrity of the Artwork with the application of protective sealing, patina or other anti-graffiti coating, if applicable, unless the City spe- cifically disapproves of such. 16. Should the Artwork created pursuant to this Agreement be damaged,the City will contact the Artist. Should the Artist and City reasonably agree that the Artwork created pursuant to this Agreement has been damaged beyond repair, it will be removed. Should the Art- work created pursuant to this Agreement require repairs that the Artist and City reason- ably agree to be deemed feasible, the Artist will complete the repairs at the Artist's sole cost. 17. At the end of the Public Display Period of the Artwork on the City Property as provided for in this Agreement, the Artist shall remove/de-install the Artwork from the City Prop- erty at the Artist's cost. Such de-installation/removal shall be conducted in accordance with all applicable legal requirements. In the event the Artist fails to remove/de-install the Artwork from the City Property at the end of the Public Display Period, the City may provide for the removal/de-installation of the Artwork and the Artist shall reimburse the City the cost thereof. 18. Notwithstanding anything to contrary in this Agreement,the City may also relocate or de- install/remove the Artwork on or from the City Property prior to the end of the Public Display Period upon recommendation of the Elgin Cultural Arts Commission, or at the di- rection of the City Manager in their sole discretion, it being agreed and understood that acceptance or installation of the Artwork on the City Property pursuant to this Agreement does not guarantee continuous public display of the Artwork regardless of the physical integrity, identity, authenticity, or physical condition of the Artwork or the City Property. In the event the City determines to de-install/remove the Artwork from the City Property the Artwork shall be returned to the Artist, except in the event when de-installation/re- moval of the Artwork requires the destruction thereof. 19. In a circumstance where Artwork is permanently affixed to City Property, e.g. a mural painted on the wall of a City building, it is agreed and understood that such Artwork shall be deemed to become part of the real estate owned by the City and such Artwork shall be the property of and owned by the City. 20. In a circumstance where Artwork is affixed to City Property and the removal of the Art- work from the City Property requires the destruction thereof, e.g. a mural painted on the wall of a City building, it is understood that the removal thereof may and shall be accom- plished by the Artist or the City through a destructive process of removal, or in the case of a painted Artwork alternatively through the painting over or covering of such Artwork. Prior to any such destructive removal by the Artist, the Artist shall submit to the City for the City's approval the specifications and procedures for such destructive removal pro- cess. 5 21. The Artist shall retain all copyrights to the Artwork created pursuant to this Agreement. The City, however, shall retain the right to photograph and publish images for publicity purposes. No photographs of the Artwork taken by the City will be used for profit. 22. This Agreement shall not be construed so as to create a partnership, joint venture, em- ployment or other agency relationship between the parties hereto. The relationship of the Artist to the City arising out of this Agreement shall be that of an independent con- tractor. It is expressly agreed and understood that the Artist and the Artist's officers, em- ployees and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 23. If the Artist violates or breaches any term of this Agreement,such violation or breach shall be deemed to constitute a default, and the City shall have the right to seek such adminis- trative, contractual, legal or equitable remedies to which it may be entitled by law as a result of such violation or breach; and, in addition, if the Artist, by reason of any default, fails, within fifteen (15) days after notice thereof by the City demanding compliance, to comply with the terms and conditions of this Agreement, the City may terminate this Agreement. If the City violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and in the event the City, within fifteen (15) days after notice thereof by the Artist demanding compliance, fails to comply with the terms and conditions of this Agreement, the Artist, as its sole and exclusive remedy, may terminate this Agreement. Notwithstanding anything to the contrary in this Agree- ment or by implication or estoppel, with the sole exception of the money the City has agreed to pay the Artist pursuant to paragraph 4 hereof, no action shall be commenced by the Artist,any related agents, persons or entities,and/or any of their successors and/or assigns, against the City for monetary damages. In the event any legal action is brought by the City for the enforcement of any of the obligations of the Artist in this Agreement and the City is the prevailing party in such action,the City shall also be entitled to recover from the Artist interest at the rate of nine percent (9%) per annum, plus attorney's fees at the rate of Two Hundred Fifty Dollars ($250.00) per hour, which Artist agrees to be reasonable. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 24. Notwithstanding any other provision hereof, the City may terminate this Agreement at any time upon thirty (30) days prior written notice to the Artist. In the event this Agree- ment is so terminated, the Artist shall only be paid for services actually performed, and reimbursable expenses actually incurred prior to termination, except that any such reim- bursement shall not, in any event, exceed the total amount set forth in paragraph 4 above. Additionally, in the event this Agreement is so terminated, the Artist shall imme- diately cease the expenditure of any funds paid to the Artist by the City and shall refund to the City any unearned or unexpended funds. 25. To the fullest extent permitted by law, Artist agrees to indemnify, defend and hold harm- less the City, its officials, officers, employees, agents, attorneys, commission members and boards and commissions from and against any and all claims, suits,judgments, costs, 6 attorney's fees, damages or other relief, including, but not limited to, workers' compen- sation claims, in any way resulting from or arising out of any breach of this Agreement or any negligent acts or omissions of the Artist in connection herewith, including any negli- gent acts or omissions of agents of the Artist arising out of the performance of this Agree- ment and/or the Subject Services by the Artist, its subcontractors, agents or employees. In the event of any action against the City, its officials, officers, employees, agents, attor- neys, commission members or boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this section shall survive any expiration, completion and/or termination of this Agreement. 26. The Artist represents and warrants as follows: a. That the Artwork is solely the result of the artistic effort of the Artist; b. Except as otherwise disclosed in writing to the City, the Artwork is unique and original and is does not infringe upon any copyright or the rights of any person; c. The Artwork (or duplicate thereof) has not been accepted for sale elsewhere; d. The Artist has not sold, assigned, transferred, licensed, granted, encumbered or uti- lized the Artwork or any element thereof or any copyright related thereto which may affect or impair the rights granted pursuant to this Agreement; e. The Artwork is free and will be free and clear of any liens from any source whatsoever; f. All Artwork created or performed by the Artist under this Agreement, shall be wholly original with the Artist and shall not infringe upon or violate the rights of any third party; g. The Artist has the full power to enter into and perform this Agreement and make the grant of rights contained in this Agreement; h. All services performed hereunder shall be performed in accordance all applicable laws, regulations, ordinances, etc. with necessary care, skill and diligence; i. The representations and warranties contained herein shall survive any expiration, completion and/or termination of this Agreement. 27. The Artist, as author of the Artwork described in this Agreement, agrees to and does hereby permanently waive the Artist's rights pursuant to 17 U.S.C. § 106A(a)(3), or as otherwise may be provided by law, to prevent any distortion, mutilation, modification or destruction of that work, for whatever reason and for whatever use of the work such distortion, mutilation, modification or destruction of the work is undertaken. This waiver does not extend to the rights of attribution conferred by 17 U.S.C. § 106A(a)(1) or § 106A(a)(2). The provisions of this Section shall survive any expiration, completion and/or 7 termination of this Agreement. 28. No official, officer, employee, agent, attorney or commission member of the City shall be charged personally or held contractually liable under any term or provision of this Agree- ment or because of their execution, approval or attempted execution of this Agreement. 29. In all hiring or employment associated with, arising out of or resulting from this Agree- ment, there shall be no discrimination against any independent contractor, employee or applicant for employment because of sex, age, race, color, creed, national origin, marital status, of the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification, and this requirement shall apply to, but not be lim- ited to,the following:employment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. 30. No person shall be denied or subjected to discrimination in receipt of the benefit of any services or activities made possible by or resulting from this Agreement on the grounds of sex, race, color, creed, national origin, age except minimum age and retirement provi- sions, marital status or the presence of any sensory, mental or physical handicap. Any violation of this provision shall be considered a violation of a material provision of this Agreement and shall be grounds for cancellation, termination or suspension, in whole or in part, of the Agreement by the City. 31. The Artist shall not assign any rights to the Artwork during the term of this Agreement to any person or entity other than the City. 32. The terms and provisions of this Agreement shall be severable. If any paragraph, subpar- agraph, phrase, clause or other provision of this Agreement, or any portion thereof, shall be held to be void or otherwise unenforceable, all other portions of this Agreement shall remain in full force and effect. 33. This Agreement and its exhibits constitutes the entire Agreement of the parties on the subject matter hereof and may not be changed, modified, discharged or extended except by written amendment duly executed by the parties. Each party agrees that no represen- tations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly-executed amendment hereof. 34. This Agreement shall be deemed to have been made in, and shall be construed in accord- ance with the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County, Illinois. 35. The Artist certifies hereby that it is not barred from bidding on a public contact as a result of a violation of 720 ILCS 5/33E, et seq., or any similar state or federal statute regarding bid rigging. 8 36. Notwithstanding any other provision in this Agreement, it is expressly agreed and under- stood that in connection with the performance of this Agreement the Artist shall comply with all applicable federal, state, city and other requirements of law including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing,the Artist hereby certifies, represents and warrants to the City that all of Artist's employees and/or agents who will be providing products, and/or services with respect to this Agreement shall be legal residents of the United States. Artist shall also secure all permits and li- censes, pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided pur- suant to this Agreement. City shall have the right to audit any records in the possession or control of the Artist to determine the Artist's compliance with the provisions of this section or of law. In the event the City proceeds with such an audit, the Artist shall make available to the City the City's relevant records at no cost to the City. The Artist shall pay any and all costs associated with any such audit. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 37. All notices, reports and documents required under this Agreement shall be in writing and shall be mailed by First Class Mail, postage prepaid, addressed as follows: As to the City: As to Artist: City of Elgin Ken Simonsen 150 Dexter Court 51 S Spring St#221 Elgin, IL 60120-5555 Elgin, IL 60120 Attention: Richard G. Kozal City Manager With a copy to: Christopher J. Beck, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 38. This Agreement is, and shall be deemed and construed to be, a joint and collective work product of the City and the Artist and, as such, this Agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of com- petent jurisdiction in order to resolve any inconsistency, ambiguity,vagueness or conflict, if any, of the terms and provisions contained herein. 39. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns.This Agreement and the obligations herein may not be assigned or del- egated by the Artist without the express written consent of the City, which consent may be withheld at the sole discretion of the City. 40. Artist hereby waives any and all claims or rights to interest on money claimed to be due 9 pursuant to this Agreement, and any and all such rights to interest to which it may other- wise be entitled pursuant to law, including, but not limited to, pursuant to the Local Gov- ernment Prompt Payment Act (50 ILCS 505/1, et seq.), as amended, or the Illinois Interest Act (815 ILCS 205/1, et seq.), as amended. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 41. The parties hereto agree that any cause of action by the Artist arising out of this Agree- ment must be filed within one year of the date the alleged cause of action arose or the same will be time-barred. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. IN WITNESS WHEREOF, the undersigned have entered into executed this Agreement on the date and year first written above. CITY OF ELGIN, a municipal corporation ARTIST B • By: A'G Richard G. Kozel, City Manager Ken Simonsen 8/12/2025 Atte t: City Clerk 10 EXHIBIT A (Ken Simonsen) SCOPE OF SERVICES FOR ARTIST AGREEMENT FOR CREATION AND TEMPORARY DISPLAY OF A WORK OF ART • Dimensions: TBC • Installation: c Jersey Walls ■ Coin Lot near Riverside Drive, Downtown Elgin • Additional details: 0 3 jersey wall will be painted. • Images of the installation location: o TBD • Images of the proposed artwork: O TBD • Staff to approve draft drawings prior to installation. 11