Q.2..._. By: To: Subject: Honorable City Council Date: March 21, 2017 Brandon Buchanan, City Manager

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1 CITY OF WOODINVILLE:, WA REPORT TO THE CITY COUNCIL rd Avenue NE, Woodinville, WA To: By: Subject: Honorable City Council Date: March 21, 2017 Brandon Buchanan, City Manager Q.2..._ Approval of Resolution No. 496: Acceptance of Donation of a sculpture f~ Woodin Creek Village Associates, LLC for roundabout at NE 171st St and 135th Ave NE Expenditure Required FINANCIAL ACTION SUMMARY I Amount Budgeted/Approved I Additional Amount Required $0 I $0 I $0 ISSUE: Shall the City Council approve Resolution No. 496, accepting a donation of a sculpture from Woodin Creek Village Associates, LLC for the roundabout at NE St and 135th Ave NE? RECOMMENDATION: To approve Resolution No. 496, accepting a donation of a sculpture from Woodin Creek Village Associates, LLC for the roundabout at NE 171 st St and 135th Ave NE. BACKGROUND/DISCUSSION: Per Section (a)(ii)(2) of the Development Agreement between the City of Woodinville and Woodin Creek Village Associates, LLC, Exhibit I of that Agreement, and subsequently approved designs, Woodin Creek Village Associates, LLC is required to provide a piece of art for the island at the center of the roundabout they are to construct at NE St and 135th Ave NE. The piece of art that is being proposed is a kinetic sculpture by world-famous Washington artist Anthony Howe entitled "In Cloud Light Ill," shown in Exhibit 1 of the attached Donation Agreement. Similar work by Anthony Howe can be found around the world. Notable examples include the kinetic sculpture with cauldron for the 2016 Summer Olympics in Rio de Janeiro and a kinetic sculpture featured on stage during the 2016 Oscars. Section 3.22 of the Municipal Code dictates that all donations of property to the City valued more than $5,000 must be accepted by Resolution of the City Council. After receiving the proposal for the specific art piece, Staff labored extensively on of a wide-range of considerations deriving from the specific piece. The two major considerations that Staff spent the most energy on were, first, safety impacts of the installation and, second, its aesthetic cohesion with the area. As mentioned, the first and primary concern that Staff considered was the effects on safety if a kinetic sculpture was installed in a roundabout. To that end, Staff reached out to a variety of professionals to get their opinion on how this installation might affect driver safety. Staff from other jurisdictions in the region, including WSDOT, weighed in with examples of where kinetic art has been installed in roundabouts without incident. Staff also spoke with Public Works Staff from a community in South Carolina where one of these Anthony Howe sculptures was installed in a bump-out years ago and they indicated no traffic safety concerns. The consensus was that in today's extremely visually cluttered public spaces, including roadways (ranging from electronic 1

2 billboards to private development such as Seattle's Great Wheel with constantly changing lights and motion along the heavily traveled and often tenuous Viaduct), this sculpture would not be an abnormality. Further, the point was made that given its 25'+ height, it would be outside of the field of vision for most drivers as they navigate the roundabout and would only really be visible from a further distance. The second primary concern Staff considered was how this piece would fit in aesthetically with the surrounding agricultural character of the installation area. While more abstract and modern in materials, Staff believes the art piece is appropriate for the area. From afar, it resembles a windmill, when both still and in motion. When examined at a closer distance, the motion resembles a flower blooming. Both match the agricultural feel of the area, albeit in a slightly more modern approach. In summary, Staff has conducted significant research into the experiences of other jurisdictions and gathered enough expert opinions to believe this installation will not represent an abnormal safety hazard for drivers. In addition to meeting safety concerns, the art piece also has the potential to provide a spark of character and culture that both residents and visitors alike will enjoy. Additionally, crafted by world-famous Washington artist Anthony Howe, the art piece has the potential to grow Woodinville's status as a place of renown beauty. ALTERNATIVES: 1. Approve Resolution No. 496 as presented 2. Take no action; provide direction to Staff RECOMMENDED MOTION: I MOVE THAT THE CITY COUNCIL APPROVE RESOLUTION NO. 496, ACCEPTING A DONATION OF A SCULPTURE FROM WOODIN CREEK VILLAGE ASSOCIATES, LLC. FOR THE ROUNDABOUT AT NE 171st ST AND 135th AVE NE AND AUTHORIZE THE CITY MANAGER TO TAKE THE NECESSARY ACTIONS TO IMPLEMENT THIS DECISION. Attachments: 1) Resolution No. 496 with accompanying Donation Agreement 2

3 RESOLUTION NO. 496 A RESOLUTION OF THE CITY OF WOODINVILLE, WASHINGTON ACCEPTING A DONATION OF A SCULPTURE FROM WOODIN CREEK VILLAGE ASSOCIATES, LLC. FOR THE ROUNDABOUT AT NE 171st ST AND 135th AVE NE. WHEREAS, Revised Code of Washington allows cities to accept donated money or property by Ordinance; and WHEREAS, Woodinville Ordinance No. 521 provides for the acceptance of donations of value greater than $5,000 by City Council Resolution; and WHEREAS, Woodin Creek Village Associates, LLC has made a generous offer to donate a sculpture to the City of Woodinville under specific conditions; and WHEREAS, those conditions are specified in the attached Agreement; and WHEREAS, the City is willing to fulfill the conditions of the Agreement in exchange for the sculpture; NOW, THEREFORE THE CITY COUNCIL OF THE CITY OF WOODINVILLE, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: Section 1. Approval of Agreement to Accept Donation. The Woodinville City Council accepts the donation of the sculpture from Woodin Creek Village Associates, LLC and approves the Agreement for the donation and acceptance of the sculpture, substantially in the form contained in the attached Agreement. Section 2. other Actions Authorized. The Woodinville City Council hereby authorizes the City Manager to take other actions necessary to implement this decision and to fulfill the City's obligations contained in the attached Agreement. RESOLVED THIS 21st day of March Bernard W. Talmas, Mayor ATTEST/AUTHENTICATED: By: Jennifer Kuhn, CMC, City Clerk Page 1 of7 Resolution No. 49

4 AGREEMENT BETWEEN CITY OF WOODINVILLE AND WOODIN CREEK VILLAGE ASSOCIATES, LLC FOR DONATION AND ACCEPTANCE OF A SCULPTURE RECITALS THIS AGREEMENT ("Agreement"), is made this day of, 2017, by and between the City of Woodinville ("the City"), a Washington Municipal Corporation, and Woodin Creek Village Associates, LLC, a Limited Liability Corporation ("Donor"), for the purpose of establishing a contractual relationship under which Donor will procure, install and donate, and the City will accept, a Sculpture for display on City property in the roundabout at NE 171 st St and 13 5th Ave NE, in Woodinville, Washington. WHEREAS, Donor has received a grant to construct and install a sculpture and present same to the City as a gift; and WHEREAS, the City and Donor ( collectively "the Parties") desire to formalize their contractual relationship regarding the procurement, construction, installation and transfer of the sculpture, and to define their respective rights, obligations and liabilities therefore; NOW, THEREFORE, in consideration of the mutual promises set forth herein, it is agreed by and between the parties as follows: TERMS 1. Donation of Sculpture. Donor agrees to procure and donate the Sculpture to the City, and the City agrees to accept the Sculpture, per the terms of this Agreement. Upon acceptance of the Sculpture by the City, the Donor is relieved of any further responsibility for care, maintenance, liability, etc. of the Sculpture. Transfer of ownership of the Sculpture shall be by bill of sale or equivalent written transfer of ownership interest in personal property. 2. Specifications of Sculpture. The Sculpture, produced by artist Anthony Howe, is titled In Cloud Light III, and is represented in the drawings included as Exhibit 1, attached to this agreement and herein incorporated. The Sculpture shall be placed in the designated roundabout in the location shown and represented in the attached drawing(s) in Exhibit Donor's Responsibilities. Donor shall procure and install the Sculpture no later than six months after the signing of this agreement. Donor shall be solely and exclusively responsible for contacting, communicating with, and coordinating delivery and installation of the Sculpture. Donor shall be responsible for obtaining all permits required by the Woodinville Municipal Code. 4. City's Responsibilities. The City shall accept delivery, receipt and ownership of the Sculpture at a mutually acceptable time and place. The City shall allow Donor pedestrian and vehicle access to installation site for purposes of constructing and installing the Sculpture. To the extent reasonably feasible, the City shall be responsible for on-going costs to maintain the Sculpture, PROVIDED, the duration of the installation of the Sculpture on City property shall be at the sole discretion of the City. If the City determines Page 2 of7

5 that it no longer desires to own and maintain the statue, it will be offered to the Donor at no charge at least sixty days prior to disposal by other means. 5. Risk of Loss or Damage. Donor shall be solely responsible and assume all risk of loss or damage to the Sculpture until receipt and acceptance thereof by the City. At the point of acceptance by the City, the Donor will bear no further liability, ownership, or authority regarding the Sculpture. 6. Relationship of Parties. No agent, employee, representative or subcontractor of Donor shall be deemed to be the employee, agent, representative or subcontractor of the City. None of the benefits provided by the City to its employees, including, but not limited to, compensation, insurance and unemployment insurance, are available from the City to the Donor or its employees, agents, representatives or subcontractors. Donor will be solely and entirely responsible for its acts and for the acts of Donor's agents, employees, representatives and subcontractors during the performance of this Agreement. 7. Indemnification/ Hold Harmless. Donor shall defend, indemnify and hold the City, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising out of or in connection with the performance of this Agreement prior and up to the time of acceptance of the Sculpture by the City, except for injuries and damages caused by the sole negligence of the City. It is specifically and expressly understood that the indemnification provided herein constitutes the Donor's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement. 8. Entire Agreement. The written provisions and terms of this Agreement, together with all documents attached hereto, shall supersede all prior verbal statements of any officer or other representative of the City, and such statements shall not be effective or be construed as entering into or forming a part of, or altering in any manner whatsoever, this Agreement. 9. Modification. No waiver, alteration or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and Donor. 10. Assignment. Neither party may assign its rights or obligations granted by this agreement without the written consent of the other party. 11. Written Notice. All communications regarding this Agreement shall be sent to the parties at the addresses listed below, unless notified to the contrary. Any written notice hereunder shall become effective as of the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing. Page 3 of7

6 12. Non-Waiver of Breach. The failure of the City to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein conferred in one or more instances shall not be construed to be a waiver or relinquishment of said covenants, agreements or options, and the same shall be and remain in full force and effect. 13. Resolution of Disputes, Governing Law. Should any dispute, misunderstanding or conflict arise as to the terms and conditions contained in this Agreement, the matter shall be referred to the City Manager, whose decision shall be final. In the event of any litigation arising out of this Agreement, the prevailing party shall be reimbursed for its reasonable attorney fees from the other party. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year above written. CITY OF WOODINVILLE WOODIN CREEK VILLAGE ASSOCIATES, LLC By: Brandon Buchanan, City Manager CITY CONTACT City Manager rd Avenue NE Woodinville, WA Phone: By: W. Dean Weidner, Member DONOR CONTACT W, Dean Weidner Woodin Creek Village Associates, LLC 9757 Juanita Dr. NE, Suite 300 Kirkland, WA Phone: Page 4 of7

7 ATTEST/AUTHENTICATED By: Jennifer L. Kuhn, City Clerk APPROVED AS TO FORM By: Office of the City Attorney Page 5 of7

8 Agreement with Woodin Creek Village Associates, LLC for Donation of Sculpture ("In Cloud Light III by Anthony Howe) Exhibit 1 Page 6 of7

9 Page 7 of7

10 Resolution No. 496: Acceptance of Donation of Sculpture from Woodin Creek Village Associates, LLC

11 Proposed Location: NE 171 st St & 135 th Ave NE

12 The Sculpture