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HomeMy WebLinkAbout07/07/2015 10 East Lincoln Avenue Overpass "Bins of Light" Artwork Repair and Maintenance Agreement with the Millennium FoundationBUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 10. For Meeting of: July 7, 2015 ITEM TITLE: Resolution authorizing an agreement with the Millennium Foundation for repair and maintenance of the "Bins of Light" Artwork installed upon the eastern face of the grade separation overpass on East Lincoln Avenue SUBMITTED BY: Sean Hawkins, Economic Development Manager, 575-6274 SUMMARY EXPLANATION: The concept of the "Bins of Light" public art project received its official start with authorization from the Yakima City Council at its March 18, 2008 meeting. At the June 15, 2010 Yakima City Council meeting, the Council approved a professional services contract with Haddad Drugan, LLC for development of plans for the fabrication and installation of the "Bins of Light" project. While the fabrication plans were completed, the City Council did not move forward to approve building the project until the August 19, 2014 Yakima City Council meeting when it was determined that $636,209 remained in the grade separation project that could be used to build and install the public art piece. While the City Council was in discussion on moving the project forward, the Millennium Foundation approached the City offering their financial support to maintain the piece of art after installation. As part of this agreement, the Millennium Foundation agrees and commits to maintain a Trust Fund Balance of at least $200,000 to be used to reimburse City for City costs incurred for maintenance and repair of the artwork. The project is anticipated to be out for bid in late August 2015, with an issue of notice to proceed by October 2015. The specialized glass for the faces of the bins is manufactured in Germany and will require at least 18 weeks to be delivered. The actual installation will start in the spring of 2016 with planned completion by the end of summer 2016. Resolution: X Ordinance: Other (Specify): Contract: Contract Term: Start Date: End Date: Item Budgeted: Amount: Funding Source/Fiscal Impact: Strategic Priority: Economic Development Insurance Required? No Mail to: Phone: APPROVED FOR SUBMITTAL: RECOMMENDATION: ATTACHMENTS: Description Resolution - Millennium Foundation Mainteance Agreement Maintanance Agreement - Millennium Foundation 6/29/2015 City Manager Upload Date 6/29/2015 Type Cover Memo Cover Memo A RESOLUTION RESOLUTION NO. R -2015 - authorizing the City Manager to execute an agreement with the Millennium Foundation for repair and maintenance of the "Bins of Light" Artwork installed upon the eastern face of the grade separation overpass on East Lincoln Avenue. WHEREAS, the Yakima City Council has agreed to fund $350,000 for the "Bins of Light" public artwork to be part of the Lincoln Avenue underpass project; and WHEREAS, the Millennium Foundation has been founded to provide funding and maintenance for approved public art projects in the City of Yakima; and WHEREAS, the City of Yakima and the Millennium Foundation have negotiated an agreement for maintenance of the "Bins of Light" public artwork, whereby the Millennium Foundation agrees and commits to maintain a Trust Fund Balance of at least two hundred thousand dollars ($200,000) to be used to reimburse City for City costs incurred for maintenance and repair of the Artwork; which Agreement is attached hereto as Exhibit "A" and incorporated herein by this reference; and WHEREAS, the City Council finds and determines that approval of such agreement is in the best interests of residents of the City of Yakima and will promote the general health, safety and welfare; now, therefore BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The Agreement by and between the City of Yakima and the Millennium Foundation, which Agreement is attached hereto and incorporated herein, is hereby approved; and the City Manager is hereby authorized to execute and administer such Agreement. ADOPTED BY THE CITY COUNCIL this 7th day of July 2015. ATTEST: Micah Cawley, Mayor Sonya Claar-Tee, City Clerk MAINTENANCE AGREEMENT By and Between CITY OF YAKIMA And MILLENNIUM FOUNDATION "BINS OF LIGHT" ARTWORK THIS AGREEMENT is entered into by and between the parties to provide for maintenance and repair of the "Bins of Light" Artwork installed upon the eastern face of the grade separation overpass on East Lincoln Avenue. I. Recitals A. The City of Yakima (hereafter called "City") is a municipal corporation duly formed under the laws of the State of Washington, with City Hall located at 129 North 2nd Street, Yakima, Washington 98901. B. Millennium Foundation (hereafter called "Foundation") is a nonprofit corporation duly formed and existing under the laws of the State of Washington, with registered office located at 601 North 39th Avenue, Yakima, Washington 98902. C. The City is commissioning public artwork titled "Bins of Light," hereafter referred to as "Artwork." The Artwork consists generally of electrically illuminated panels fashioned to appear as faces of fruit packing bins, and will be installed so that the illumination is phased sequentially and otherwise to produce an animated facade. The Artwork is to be placed upon a "Display Area" consisting of the eastern face of the West Lincoln Avenue grade separation overpass. The overpass currently accommodates railroad and railway traffic over and across the automobile, vehicular and pedestrian traffic using West Lincoln Avenue. D. Public funding will be used for acquisition, installation of the Artwork, and for payment of electrical power for operation of the Artwork. However, no public funding has been allocated or appropriated by the City for maintenance and repair of the Artwork. Millennium Foundation has funds it desires to use for the maintenance and repair of the Artwork. E. The parties desire to enter into an Agreement for the maintenance and repair of the Artwork, all as set forth below. II. Agreement 1. City's Obligations. A. Acquisition and Installation of Artwork. The City will acquire the Artwork with available public funds, and will provide and pay for the installation of the Artwork upon the Display Area. Upon completion of installation and final acceptance of the Artwork by the City, the City will receive "as built" drawings from the Artist(s) showing the placement of all panels, supporting structures and electronic wiring diagrams. Copies of these as built drawings and wiring diagrams will be provided by City to Foundation. B. Furnishing of Electrical Power. The City shall be responsible for payment of electrical power charges incurred for the operation of the Artwork. C. Maintenance and Repair of Artwork. The City shall be responsible to perform maintenance and repair of the Artwork, as deemed necessary and appropriate by the City in its sole discretion, subject to Foundation's obligation to pay and reimburse City for such costs of repair and maintenance as set forth in Section 2 below. "Maintenance" shall include replacement of lighting fixtures, elements, and bulbs as necessary to maintain full operation of the Artwork as originally installed. Maintenance shall also include cleaning of the individual panels constituting the bins, and installation of new or replacement bins bearing the logo or trade name of persons, businesses and firms approved for display of such logos and trade names upon and within the Artwork. "Repair" means and includes correction of damage, whether caused by sudden cataclysmic event or deterioration, to the Artwork structural components, individual bin panels, fixtures and electrical components. City reserves sole discretion and right to determine schedules of routine maintenance, scope of maintenance, selection and use of materials and replacement parts, and assignment of personnel to perform such maintenance. City also reserves sole discretion and right to determine the need for repair to the Artwork, the scheduling of such repair, the materials to be used in such repair, and the personnel to perform such repair. The duties to perform maintenance and/or repair are specifically subject to, and dependent upon the availability of sufficient funding to perform such duties with the sufficiency and source of such funding determined by the City in its sole discretion. Notwithstanding the above sentence, the funds maintained by Foundation shall be considered the primary source of funds for the maintenance and repair of the Artwork. City reserves the right to use City personnel, as appropriate, to perform such maintenance and repair services, or to retain contractors to perform such work. City shall provide Foundation with a copy of its maintenance schedules, including a description of the services to be included in routine maintenance. In the event of repairs to the Artwork deemed by City to be necessary or appropriate, City shall provide as much advance notice to Foundation as deemed appropriate by City. Where possible, City shall give Foundation an opportunity to comment upon the proposed repair prior to undertaking such repair. 2. Foundation's Obligations. A. Millennium Foundation Trust Fund. Foundation maintains and operates the Millennium Foundation Trust Fund (hereafter "Trust Fund"). One of the primary purposes of the Trust Fund is to provide funding for maintenance and repair of public artwork. Foundation agrees and commits to maintain a Trust Fund Balance of at least Two Hundred Thousand and 00/100 Dollars ($200,000.00) to be used to reimburse City for City costs incurred for maintenance and repair of the Artwork. Foundation agrees to provide City, upon City's request, a statement of Trust Fund balance together with a report of any expenditures incurred or anticipated by Foundation that are likely to reduce the Trust Fund balance below the $200,000.00 comm itment. In the event the Trust Fund balance is reduced below $200,000.00 and the Foundation is unable to restore the balance to at least the $200,000.00 amount within six (6) months, Foundation shall notify City of such current balance and report on plans and a schedule to restore such Trust Fund balance to at least $200,000.00. B. Maintenance of Artwork — Reimbursement of City Expenses. Foundation shall be responsible for payment of all costs and expenses incurred by City to maintain the Artwork. City shall provide Foundation a statement of costs and expenses incurred for the performance of such maintenance, including labor and materials, and any costs incurred by City for City contractors hired to perform such maintenance. Such statement of costs and expenses will be presented by City to Foundation upon completion of the maintenance work performed, unless a routine maintenance and payment schedule is otherwise agreed by the parties. City and Foundation will cooperate to identify maintenance needs and best practices. C. Repair of Artwork — Reimbursement of City Expenses. Foundation shall be responsible for payment of all costs and expenses incurred by City to repair the Artwork. City and Foundation will cooperate to identify repairs needed for the Artwork. In the event City identifies repairs that are necessary or appropriate, it will notify Foundation of the nature of such repair and, if reasonably available, an estimate of the cost of such repair, and a proposed schedule to accomplish the repair. City shall provide Foundation a statement of costs and expenses incurred for the performance of such repair, including labor and materials, and any costs incurred by City for City contractors hired to perform such repair. Such statement of costs and expenses will be presented by City to Foundation upon completion of the maintenance work performed. D. Payment of Maintenance and Repair Expenses. City shall provide Foundation a billing statement describing the maintenance and/or repair work performed, the date(s) such work was performed, and the maintenance and/or repair expenses incurred by City for performance of such work. Foundation shall pay and remit payment in full to City of such billing within thirty (30) days of the date of such billing. 3. Depletion of Trust Fund. In the event the balance of funds remaining in the Trust Fund allocated for payment of City's maintenance and repair costs is depleted, or is reasonably anticipated to be depleted, to below $50,000.00, City may elect, without limitation, any of the following remedies: A. Termination of Agreement. City may terminate this Agreement upon thirty (30) days written notice to Foundation. City shall deliver with the Notice of Termination a statement of maintenance and/or repair expenses incurred by the City, or to be incurred by the City through the effective date of termination. On or before the effective date of termination, Foundation shall pay and remit to City sufficient funds from the Trust Fund to pay such expenses. Upon payment in full, this Agreement shall terminate except for those provisions expressly stated to survive termination. B. Use of Other Available Funds. City may use other available funds, including grant funds and funds received through donation, to cover and pay for maintenance and/or repair expenses for the Artwork. The amount and source of such funds, if any, shall be solely vested in the discretion of the City. C. Relocation of Artwork. City reserves, in the exercise of its sole discretion, the right to remove the Artwork from its present location and to relocate the Artwork to a new location. D. Remedies Not Exclusive. The above options and remedies are not exclusive, and the City may exercise any other means to operate, remove, relocate, store, sell, exchange, donate or otherwise dispose of such Artwork. 4. Termination for Convenience. Either party may terminate this Agreement upon delivery of written Notice of Termination for Convenience at least 180 days in advance of the effective date of termination. At least 30 days before the effective date of termination, the parties will confer as to final expenses to be paid from the Trust Fund, matters affecting continued operation, maintenance and repair of the Artwork, plans to remove, convey or otherwise dispose of such Artwork, and any other matter affecting such Artwork. On or before the effective date of termination, Foundation shall remit and pay City out of the Trust Fund all expenses incurred, or to be incurred, by City through the effective date of termination, together with any expenditures incurred by City, or to be incurred by City, for maintenance and/or repair previously contracted by City to be performed after the effective date of termination. 5. Ownership of Artwork. The parties agree and understand that City is the sole owner of the Artwork. Nothing in this Agreement shall be construed to vest Foundation, its members, or any other third party with any ownership interest in the Artwork. 6. Hold Harmless. Except for the contractual obligations between the parties set forth in this Agreement, Foundation agrees to hold City, together with its elected and appointed officials, employees, volunteers and insurers, harmless from any and all claims, damages, causes of action, demands and liabilities arising out of or attributed to this Agreement and the performance thereof, and from any loss, damage, injury to the Artwork arising out of this Agreement and the performance thereof. Except for the contractual obligations between the parties set forth in this Agreement, City agrees to hold Foundation, together with its board members and appointed officials, employees, volunteers and insurers, harmless from any and all claims, damages, causes of action, demands and liabilities arising out of or attributed to this Agreement and the performance thereof, and from any loss, damage, injury to the Artwork arising out of this Agreement and the performance thereof. The provisions of this section shall survive termination of this Agreement. 7. Insurance. The parties agree and understand that neither party is obligated to obtain and/or maintain insurance insuring the other party for the purposes of this Agreement or the performance thereof. 8. Independent Contractors. The parties agree and understand that each party is an independent contractor in the performance of this Agreement. Each party shall have sole and exclusive control over its employees and the assignment and performance of all work performed pursuant to this Agreement. Each party shall be solely responsible for payment and compensation of its own employees, contractors, agents and volunteers, and nothing in this Agreement shall be construed to create any relationship of employer-employee between employees, contractors, agents and volunteers of one party and the other party. Nothing in this Agreement shall be construed to create any partnership, joint venture, or any relationship other than independent contractors between City and Foundation. 9. Notification. Whenever any notice is to be provided to the parties herein, such notice shall be in writing delivered to the other party in care of the persons and addresses listed below: City of Yakima Millennium Foundation Tony O'Rourke, City Manager 129 North 2nd Street Yakima, Washington 98901 Kenneth Meissner, Registered Agent 601 North 39th Avenue Yakima, Washington 98902 Either party may designate other persons to receive notices pursuant to this Agreement, provided such designation is in writing delivered to the other party. 10. Effective Date — Term. This Agreement is executed June 2015, and shall continue in effect until terminated pursuant to Sections 3 or 4 above. WHEREFORE, the parties have executed this Agreement as follows: CITY OF YAKIMA MILLENNIUM FOUNDATION By: By: Tony O'Rourke, City Manager ATTEST: By: Bill Cook, Secretary By: Sonya Claar Tee, Clerk Kenneth Meissner, Vice- President