DEXTER ART GARDENS nPROFESSIONAL SERVICES MEMORANDUM OF UNDERSTANDING nThis Memorandum of Understanding (the “MOU”), made and executed on _______________(date) provides a framework for the services that _______________________(artist name) intends to provide to the CITY OF DEXTER hereinafter referred to as ARTIST and CITY respectively. nArtist Name City: City of Dexter nAddress 8140 Main Street nCity, ST, Zip Dexter, MI 48130 n nContact: Justin Beyer nTelephone: Title: Assistant to the City Manager nEmail: Telephone: 734-580-2234 nWebsite: Email: jbreyer@dextermi.gov n nFOR INSTALLATION OF ARTWORK IN DEXTER, MI. nI. DEFINITIONS n“Artwork” or “artwork” means the design or physical embodiment of any art delivered under this agreement. nII. DURATION nThis agreement shall become effective on the date that all parties have signed and shall remain in effect until satisfactory completion of the Services specified below unless terminated as provided for in this agreement. nIII. SERVICES nA. General Scope: ARTIST agrees to delivery, installation and de-installation services for artwork as specified in Exhibit A. ARTIST acknowledges that the artwork is intended to be displayed to the general public on CITY property. nB. Quality of Services: ARTIST’s standard of service under this agreement shall be of the level of quality performed by professionals regularly rendering this type of service. nC. CITY Review of Services: The services shall, at all times, be subject to City’s general review and approval. ARTIST shall confer with CITY periodically during the progress of the services and shall prepare and present such information and materials as may be pertinent, necessary or requested by CITY to determine the adequacy of the services or ARTIST’s progress. nD. Compliance with Applicable Law: ARTIST shall perform the services under this agreement in compliance with all applicable laws, ordinances and regulations. nE. Additional Work: CITY may desire to have ARTIST perform work or render services in connection with this project other than that expressly provided for in the “Scope of Services” section of Exhibit A. This will be considered extra work, supplemental to this agreement and shall not proceed unless authorized by a written amendment signed by both parties. Any costs incurred due to the performance of extra work prior to execution of an amendment will not be reimbursed under this agreement or an amendment. nIV. WARRANTY OF SKILL BY ARTIST nA. ARTIST warrants that the quality of ARTIST‘s services under this agreement shall conform to the level of quality performed by artists regularly rendering this type of service. nB. ARTIST warrants that ARTIST has all the skills and experience necessary to perform the services under this agreement. ARTIST may rely upon the accuracy of reports and surveys provided by CITY except when defects should have been apparent to a reasonably competent ARTIST or when ARTIST has actual notice of any defects in the reports and surveys. nV. RELATIONSHIP OF PARTIES nA. The parties to this agreement agree that it is not a contract of employment but is a contract to accomplish a specific result. ARTIST is an independent contractor performing services for CITY. Nothing contained in this agreement shall be deemed to constitute any other relationship between CITY and ARTIST. nB. ARTIST certifies that ARTIST has no personal or financial interest in the project other than that which is indicated under section IV. ARTIST further certifies that ARTIST shall not acquire any such interest, direct or indirect, which would conflict in any manner with the performance of services under this agreement. Further ARTIST agrees and certifies that ARTIST does not and will not employ or engage any person with a personal or financial interest in this agreement. nC. ARTIST does not have any authority to execute any contract or agreement on behalf of CITY and is not granted any authority to assume or create any obligation or liability on CITY’s behalf, or to bind CITY in any way. nVI. COMPENSATION OF ARTIST nA. This is a flat-fee contract for services. ARTIST shall be paid $800. The total fee to be paid to ARTIST for the services including all administrative, travel, shipping, delivery, installation, de-installation and other costs incurred provided all of the services performed are accepted as specified in Exhibit A. nB. Payment shall be made upon satisfactory completion and delivery of the Services, as provided in Exhibit A. It is understood and agreed between the parties that the compensation stated above is inclusive of any and all remuneration to which ARTIST may be entitled. nVII. ARTWORK MUST BE AVAILABLE FOR SALE na. Any works installed under this agreement shall be for sale at a price indicated on the ARTIST’s application as required in Exhibit A. ni. If sold, the artwork must remain on exhibit until the exhibition closes. nii. The artist is responsible for negotiating the terms of sale, schedule and fees for delivery with the purchaser once the artwork is released from the exhibitionThe artist will be entitled to 70% of the total sales price for any works sold, while the CITY shall be entitled to 30%. The ARTIST shall be responsible for any State or Federal taxes on artwork sold. niii. The CITY will manage the sales transaction in consultation with the artist. niv. Michigan sales tax of 6% will be assessed, collected and remitted to the State of Michigan by the City of Dexter nv. Sales Commission Split – After all expenses and taxes due, the artist will receive 70% and the City of Dexter will receive 30% of the sales price. n  nIX. OWNERSHIP OF ARTWORK AND INTELLECTUAL PROPERTY RIGHTS nA. Damage or Alteration: Subject to subsection (D) below, the CITY shall not intentionally alter ARTIST's artwork without the prior written approval of ARTIST. ARTIST acknowledges, for the benefit of the CITY, that installation of artwork into the building, structure, landscape or other CITY facility for which it has been designed may subject the artwork to destruction, damage, distortion, mutilation or alteration upon its removal. ARTIST acknowledges that the artwork will be placed outdoors, will be unsecured and that the artwork may be destroyed, mutilated, distorted, or damaged, including by weather, graffiti, or vandalism. ARTIST waives all claims against CITY and the CITY arising from damage to the artwork. nB. Maintenance, Repairs or Restorations: The CITY shall consult with ARTIST prior to performing maintenance, repairs, or restorations to any artwork except in the case of public safety or emergency as determined by the CITY when the CITY reserves the right to close, reduce or eliminate access and/or remove artwork from the premises without consultation with ARTIST> nC. Intellectual Property Rights: All intellectual property rights, including any material produced under this agreement, shall vest in and at all times remain vested in the originator of the material produced. ARTIST shall identify and clearly mark all materials produced or given to the CITY that constitute intellectual property, the rights to which are vested in or retained by any other originator and shall identify such other originator. nD. Copyright Identification: When displaying or reproducing any image of the artwork or preliminary materials to be produced under this agreement that are subject to ARTIST's or another party's copyright, the parties shall acknowledge such copyright with “©,” as appropriate, in immediate adjacency to the image. nE. No Liability: CITY and the CITY shall accept no liability and ARTIST shall not seek to hold either liable for the further interpretation, design, or implementation by others of ideas, concepts, or intellectual copyright materials generated under this agreement. nF. Ownership of Materials: The CITY shall own the physical embodiment of the artwork, including artwork proposals. The CITY shall be permitted to create, display or distribute photographs, digital images, film, video or electronic media of the artwork or ARTIST's proposal in any media, including catalogs brochures, books, flyers, postcards, posters, broadcasts, films and electronic files for the purposes of advertising the City and its arts program. If images of the installed artwork are used for merchandising purposes, the ARTIST will be provided with a sample and may purchase additional merchandise at cost plus shipping. nG. Non-infringement: Artwork designs produced by ARTIST shall not infringe or violate any copyright, trade secret, trademark, patent, or other proprietary or personal right held by any third party. If any of the artwork designs is, in any action, held to constitute an infringement of any third party’s rights and its use is enjoined, ARTIST shall immediately and at his/her expense (a) procure for the CITY the right to continue its use of the artwork design in accordance with this agreement, (b) alter the artwork design to eliminate infringing portions, subject to the CITY’s approval, or (c) replace the artwork design with a design acceptable to the CITY that is non-infringing. nH. Survival: The provisions of this section shall survive the expiration or termination of this agreement. nX. RISK OF LOSS; INSURANCE; INDEMNIFICATION nA. ARTIST shall take such measures as are reasonably necessary to protect the artwork from loss or damage until ARTIST has completed installation and delivery of all materials specified herein and ownership is transferred to the CITY, which transfer shall occur when installation is complete. nB. ARTIST is responsible for procuring and maintaining at ARTIST's own expense whatever insurance is required during the life of this agreement to protect ARTIST and the CITY from claims for bodily injuries, death, or property damage which may arise under this agreement and to cover bodily injuries, death, property damage, or other losses ARTIST, CITY , or the CITY may suffer while performing the work under this agreement, including damage to or loss of the artwork while in ARTIST‘s possession and control. nC. To the fullest extent permitted by law, ARTIST shall indemnify, defend and hold CITY, the CITY and their respective officers, employees and agents harmless from all suits, claims, judgments and expenses, including attorney’s fees, resulting or alleged to result, to its proportionate extent, from any negligent, grossly negligent, reckless and/or intentional wrongful or tortious act or omission by ARTIST or ARTIST's agents occurring in the performance of this agreement. nXI. TERMINATION OF AGREEMENT; RIGHTS ON TERMINATION nA. This agreement may be terminated by either party in the case of a breach of this agreement by the other party, if the breaching party has not corrected the breach within 15 days after notice of termination is given in conformance with the terms of this agreement. nB. CITY shall have the privilege, with or without cause, to cancel and annul this agreement at any time on 30 days written notice to ARTIST in accordance with the notice provisions contained in this agreement. nC. If services are terminated for reasons other than the breach of the agreement by ARTIST, ARTIST shall be compensated for reasonable time spent and reasonable quantities of materials used prior to notification of termination. As a condition of receiving the payment from CITY, ARTIST agrees to transfer title to all partially completed artwork, plans, notes, drawings, etc., to the CITY. nXII. OBLIGATIONS OF CITY nCITY shall notify ARTIST of any defects in the services of which CITY has actual notice. nXIII. ASSIGNMENT nARTIST shall not subcontract or assign any portion of the services without prior written consent from CITY. nXIV. NOTICES nAll notices, forms, reports, maintenance suggestions and other textual materials required by this agreement shall be in writing and all such material, together with any other material to be delivered hereunder, shall be delivered or mailed to the respective addresses of the parties hereto. ARTIST’s failure to keep CITY reasonably informed regarding ARTIST’s current address and contact information shall be deemed a waiver of ARTIST’s rights and opportunities under this agreement. nAll notices, requests, demands or other communications that are required or permitted to be given under this agreement shall be in writing and shall be deemed to have been duly given upon receipt when addressed as stated below or to such other address as may be specified hereafter by either party for itself, by written notice to the other party. nIf to City of Dexter , to: City of Dexter nAttn: Justin Breyer n8140 Main Street nDexter, MI 48130 njbreyer@dextermi.gov n nIf to Artist, to: NAME nSTREET ADDRESS nCITY, ST ZIP nEMAIL nXV. EXTENT OF AGREEMENT nThis agreement represents the entire understanding between CITY and ARTIST and it supersedes all prior representations or agreements whether written or oral. Neither party has relied on any prior representations in entering into this agreement. nThis agreement may be altered, amended or modified only by written amendment signed by ARTIST and CITY. nXVI. SEVERABILITY OF PROVISIONS nWhenever possible, each provision of this agreement will be interpreted in a manner as to be effective and valid under applicable law. However, if any provision of this agreement or the application of any provision to any party or circumstance will be prohibited by or invalid under applicable law, that provision will be ineffective to the extent of the prohibition or invalidity without invalidating the remainder of the provisions of this agreement or the application of the provision to other parties or other circumstances. nXVII. CHOICE OF LAW nThis agreement shall be construed, governed and enforced in accordance with the laws of the State of Michigan, County of Washtenaw and City of Dexter. By executing this agreement, ARTIST and CITY agree to venue in a court of appropriate jurisdiction sitting within Washtenaw County for purposes of any action arising under this agreement. nXVII. SIGNATURES n nFOR CITY OF DEXTER nDate nJustin Breyer, Assistant to the City Manager n nFOR ARTIST nSignature Date nPrint name nEXHIBIT A n nScope of Services nARTIST shall complete the following services to install and de-install the artwork as described and depicted in the attached proposal. If a provision in the attached proposal conflicts with a provision in the agreement, the terms of the agreement prevail. nApplication and Project Timeline n April 1, 2018 - The deadline for submissions is April 1, 2018. n Week of April 23, 2018 - Artist notification of selection by email or phone. n June 1st – June 15, 2018 - Artwork installation appointments to be made during this time. n May 15 – May 31, 2019 - Artwork removal appointments to be made during this time nDesign Specifications, Preparation And Engineering n1. As installed, the artwork must have low maintenance requirements and be safe and stable enough for individuals to touch and interact with the work and withstand long-term interaction with people, creatures and Michigan’s natural elements. n2. The work shall be secured via bolts into concrete pads. The concrete pads will be provided by the City of Dexter. Artwork must be safe for public interaction via this method of installation. n3. The ARTIST must address design issues with CITY and comply with required changes. n4. The ARTIST must provide any maintenance needs and associated costs to the CITY. n5. Performinstallation and de-installation services, at ARTIST’s sole expense and without reimbursement by CITY, except where otherwise stipulated. nInstallation n1. ARTIST, in consultation with CITY, must establish a timeline and plan for safe delivery and installation of artwork. n2. The City does not anticipate any permits to be required for installation. n3. ARTIST(s) is responsible for the arrangements and all expenses for the transportation, delivery, labor, equipment and other logistics required for the complete installation of artwork. The City shall provide any required concrete pads. n4. Artist will be contacted by CITY to set an appointment date for installation of their artwork between June 1 and June 15, 2018 n5. Artist is responsible for the cost and acquisition of the proper bolts to secure the artworks. n6. Free standing artwork must be adaptable for installation on a cement pad. n7. Artist or artist’s designee must be present for installation. n8. The City of Dexter will make available, upon request and prior arrangement, a bobcat and/or backhoe for unloading and placing of the artwork on the assigned concrete pads upon request. n9. City personnel will assist the artist with the securing of artwork onto the concrete pad. nTHE SITE n1. For purposes of this Agreement, the Site shall belocated in Dexter, Michigan. The CITY reserves the right to change the SITE at its discretion without notification to ARTIST. nCredits n1. Any changes to the title and artist credit for the artwork labels and signage must be submitted to CITY before installation. Such information shall include the artwork title, artist’s name, and total sales price. nArtist Responsibilities – De-Installation n• Artist will be contacted to set an appointment date for de-installation of their artwork between May 15, 2019 and May 31, 2019. n• Artist is responsible for the cost of and arrangements for shipment and transportation of their artwork after the exhibition closes – including if said artwork is sold to a third party. n• Artist or artist’s designee must be present for de-installation. nArtwork for Sale n• Artwork must be for sale during the exhibition. If sold, the artwork must remain on exhibit until the exhibition closes. n• The City of Dexter will manage any sales in consultation with the artist. n• Michigan sales tax of 6% will be assessed, collected and remitted by the artist. n• Sales Commission Split – After expenses the artist will receive 70% and the City of Dexter will receive 30% of the sales price. n• The artist is responsible for negotiating the terms of delivery, including costs, with the purchaser, once the artwork is released from the exhibition. n  nEXHIBIT B nSchedule of Compensation nThis is a flat-fee contract for service. One payments will be made in the amount of $800 upon completion of the identified elements in the Scope of Services Exhibit A. nThe following forms are provided by CITY and must be completed by ARTIST before payment may be made: n1. Complete IRS Form W-9 n2. Electronic Funds Transfer Form (if required) nFirst and final Payment nUpon successful artwork installation $800 n nThis document is subject to change prior to any executed agreement.