Additional_Terms_and_Conditions.pdf

245005-O22-HS21002EXDS-00

Additional Terms and Conditions

Contract Number: 245005-O22-HS21002EXDS-00

This document contains terms and conditions in addition to those contained in the Wisconsin Historical Society’s Request for Proposal HS21-002 (the "Proposal"), the Standard Terms & Conditions in RFP HS21-002, the State’s Standard Terms and Conditions (DOA-3054), and Supplemental Standard Terms & Conditions for Procurements for Services (DOA- 3681). Together, with the Statement of Work, all documents create the “Contract.” See “Contract Cover Page” for overview.

Within this document the Wisconsin Historical Society (WHS, the Society) is referred to as the “Client” and Ralph Appelbaum Associates, Inc. is referred to as “RAA.”

The Wisconsin Historical Foundation is defined as an agent as used in Article 32.0 of DOA-3054. The Foundation is a partner organization of the Society and has an integral role in the New Museum Exhibit Design project.

ARTICLE 1

(Project Schedule)

1.1 The services under this Contract include RAA responsibility for the design and monitoring of the Exhibition project. RAA, periodically and as required, shall update and amend to reflect the updated timeframes for the work (the "Project Schedule").

1.2 Except as otherwise provide in this Contract, the failure of either party to perform its obligations under this Contract according to the most current and agreed upon version of the Project Schedule may postpone the performance of acts by the other party that depend on the timely performance by the delaying party, and may entitle the non-delaying party to an appropriate extension of time in which to perform its obligations under this Contract, which, once mutually agreed to, shall require an adjustment to the Project Schedule in addition to any other rights and remedies provided for in this Contract.

ARTICLE 2

(RAA Responsibilities)

2.1 RAA shall undertake to act promptly and in good faith in the performance of its obligations under this Contract as outlined in further detail under the Request for Proposal and Statement of Work. In performing its services hereunder, RAA shall:

2.2 Perform its services in accordance with the Project Schedule.

2.3 Perform its services with the standard of professional skill and care applicable to firms performing similar services in the region of the Project under the same or similar circumstances (the “Standard of Care”).

2.4 Coordinate its services with those third parties engaged directly by the Client to perform services (other than those to be performed by RAA hereunder) in connection with the Project.

2.5 Periodically report to the Client on the status of the progress of the Exhibition Implementation as reasonably required.

2.6 Attend coordination meetings and presentations at reasonable times and frequency as mutually agreed upon for the Project.

2.7 In relation to the Exhibition and to RAA’s services hereunder, RAA shall exercise the Standard of Care to identify, reasonably interpreted and respond to applicable laws, codes, rules, regulations, and local ordinances (collectively, "Applicable Laws") in the performance of its services hereunder.

2.8 Assist the Client or the third parties engaged directly by the Client and designated by the Client to provide services in connection with filing documents required to obtain approvals of the Project from the governmental authorities having jurisdiction over it by providing the required number of copies of design documents prepared by RAA as part of RAA's Deliverables included under this Contract in connection with the Exhibition.

2.9 Retain such consultants and/or specialists as RAA deems reasonably required in connection with the scope of services required for the Exhibition under this Contract ("RAA Consultants"). RAA shall be fully responsible to the Client for the correct and timely performance and completion of all services by the RAA

DocuSign Envelope ID: DF9133A8-41C3-489F-B43B-8935E98DD18E

Consultants and nothing herein shall be construed to create any contractual relationship between the Client and any of the RAA Consultants.

2.10 The relationship created by this Contract between the Client and RAA with respect to RAA's services for the Exhibition is one of an independent contractor, and shall in no way be construed as creating or appointing RAA as an employee, partner, or agent for the Client relating to the services hereunder.

2.11 RAA shall not be responsible for providing any services, Deliverables, or both, other than those expressly set forth in this Contract.

ARTICLE 3

(Client Responsibilities)

3.1 The Client shall act promptly and in good faith in the performance of its responsibilities under this Contract, including the following items:

3.2 Provide complete and accurate information regarding the Project, including as applicable, information regarding the Project site and the services of any Architect, Contractor or others who may be retained by the Client to provide services for the Project, with the understanding that the information, services and other items to be furnished by the Client pursuant to this Contract are material to RAA 's work hereunder and that RAA will rely on the accuracy, sufficiency and consistency of the information and services supplied by the Client or its authorized representative(s).

3.3 Designate a representative authorized to act on the Client's behalf with respect to the implementation of the Exhibition.

3.4 Review and provide RAA with a written response and/or approval of all Deliverables and other documents submitted by RAA within ten (10) business days (or such other time as expressly set forth in the Project Schedule), including explanations for the rejection of any submitted work together with the request for revisions or changes if applicable. In the event that (i) such Client approvals or rejections are not issued by the Client within the time set forth in this Contract (or on the most current and agreed upon version of the Project Schedule), (ii) the Client or its designated representatives are unable to obtain government approvals as may be required for the Project, or (iii) the Client fails in any other manner to perform its obligations under this Contract in a timely manner such that there is a delay in the work being performed by RAA, then the Project Schedule may be amended to reflect an appropriate extension of time in addition to any other rights and remedies provided under this Contract.

3.5 Appoint all necessary staff and curatorial experts to facilitate any services related to content for the Exhibition, Exhibition Script (i.e., the text that will be prepared by the Client for its inclusion in Deliverables and the Exhibition, including text panels, labels, captions, credits, and sponsors.), and any Client owned artifacts, specimens, objects, images, photographs, maps, diagrams, charts, illustrations, artwork, audio recordings, video, film footage and other materials that are to be included in the Exhibition (together the "Client’s Collections").

3.6 Provide RAA, its agents, employees and other persons authorized by RAA with reasonable access to the Project site and to the employees of the Client who are knowledgeable about the Client’s Collections.

3.7 Furnish or cause to be furnished any tests, inspections, reports, or combinations thereof, as may be required by law or regulation or obtained from a third-party upon recommendation by RAA and agreement of the Client.

3.8 Obtain and pay for all permissions, clearances, usage, access fees, copyrights, trademarks, privacy permissions and consents for use (the "Clearances") of all third-party proprietary material included in the Exhibition, work, Deliverables, or combination thereof, being prepared by RAA for any and all uses directly applicable to the services under this Contract.

3.9 Store, prepare, conserve, clean, maintain, secure, handle, and mount the Client’s Collections.

3.10 Provide RAA, or cause the Architect, if any, to provide RAA, with all Applicable Laws and interpretations thereof as applicable to the implementation of the Project and to the services to be provided by RAA with respect thereto.

3.11 Pay for all costs associated with stamping or certification of Deliverables and for obtaining the approval for the Project from all applicable governmental agencies.

3.12 Make all payments for all services and materials for the Exhibition.

3.13 Prepare and maintain the Project site with systems in adequate, clean, safe and secure conditions of operation

(including utilities and HVAC).

3.14 Provide and maintain security for the Premises.

3.15 Provide RAA with all necessary documentation to substantiate exemptions from sales and use taxes due to the Client's status as an educational, governmental, charitable, or other tax-exempt entity (if applicable).

3.16 Facilitate, provide and pay for all customs clearances (including any applicable taxes and duties) for all Exhibit Materials delivered by RAA or any RAA subcontractor or agent that requires to be imported to the country where the Project is being installed.

3.17 If the Client observes or otherwise becomes aware of any fault or defect in the Work which does not conform with the Final Fabrication Documents (i.e., the RAA documents that will be issued by the Client to Fabricator(s) and/or Trade Contractor(s) to build the Exhibition), the Client, as a condition precedent for pursuing any such claim, shall give written notice to RAA of any such issue within thirty (30) days after learning of such fault or defect (or such earlier time as may be necessary to avoid further inefficiencies, delays, deterioration and/or damage with respect to the Work and equipment involved), in order for RAA to perform or caused to be performed a timely investigation of the claim and to attempt to mitigate and remedy the situation. The failure of the Client to provide RAA with timely written notice may constitute a waiver of the Client's right to make such a claim with respect to any such fault or defect.

ARTICLE 4

(Compensation and Applications for Payment)

4.1 Invoices

4.1.1 RAA shall be compensated pursuant to the terms set forth in Final Fee 3/8/2022, Invoice Schedule by Phase, and shall submit invoices to the Client as set forth therein. All such invoices shall include the amount due to RAA, the WHS Purchase Order Number and the details and costs for the time period being billed.

4.1.2 The Invoices shall also indicate all sums previously invoiced, and shall be accompanied (if so requested by the Client) by any appropriate supporting documentation.

4.2 Payments

4.2.1 Invoices by RAA are due upon presentation, with payment terms of Net 30. The Client shall make the corresponding payments via electronic funds transfer, unless otherwise agreed in writing. All invoices shall be paid in full as they become due, without any withholding or offset for any disputes or claims; provided that such payments shall not constitute a waiver of any of the Client's rights under this Contract. The State of Wisconsin normally will pay properly submitted vendor invoices within thirty (30) days of receipt providing goods and/or services have been delivered, installed (if required), and accepted as specified.

4.2.2 Invoices presented for payment must be submitted in accordance with instructions contained on the purchase order including reference to purchase order number and submittal to the correct address for processing.

4.2.3 Pursuant to Wisconsin Statutes §16.528 and §16.53 the state's prompt payment law provides for payment of interest on orders or contracts that are not made in a timely manner. Payments are considered timely if they are mailed within thirty days after the later of the receipt of a properly completed invoice, or receipt of the goods or services.

4.2.4 RAA shall have the right to suspend performance under this Contract (without prejudice to any other right or remedy available to RAA) in the event that any amount due is not paid by the Client within the time period required by Section 5.2.1 above and not explained by the Client to RAA, provided that RAA gives at least seven (7) days' notice to the Client stating the grounds on which it intends to suspend performance.

The Project Schedule may be extended for a comparable period of time to the suspension or a mutually agreed time frame which both Parties agree is adequate to perform the necessary services and Work, and RAA may be entitled to an increase in its compensation by the amount of RAA's and the Trade Contractors' reasonable costs of any shutdown, delay and re-start-up.

ARTICLE 5

(Ownership and Use of Documents and Implemented Exhibition)

5.1 Intellectual Property

5.1.1 RAA hereby agrees and acknowledges that all drawings, specifications, materials, reports and Media Services prepared by RAA, RAA Consultants, or Trade Contractors stated in the relevant scope of services as required to be delivered to the Client under this Contract or resulting from any Additional Services performed for the Client under Addendums to this Contract (collectively, the "Deliverables") that are prepared by RAA solely and exclusively pursuant to this Contract, and forming, a part of its services for the purpose of this Contract,, and the application of the Deliverables to the fabricated and installed Work (the "Implemented Project"), constitute work made for hire of which the Client shall, subject to the rights retained by RAA below, be the exclusive owner of all proprietary rights therein upon payment in full of all moneys owed to RAA or the corresponding amount that is mutually agreed to constitute payment in full in case of Termination ("Payment in Full").

5.1.2 RAA agrees to use reasonable efforts to execute subagreements with the RAA Consultants and Trade Contractors under which they will grant the Client copyright or registration rights similar to those granted by RAA to the Client under this Contract.

5.1.3 The exclusivity of the proprietary rights of the Client under paragraph 6.1.1 hereof shall not extend to (i) the elements of the Deliverables or (ii) any procedures or techniques, that RAA, RAA Consultants, or Trade Contractors may develop as part of RAA's, RAA Consultants’, or Trade Contractors’ own brand of professional expertise and services (the "RAA Brand Services"), including any media now known or hereafter developed, or to (iii) Preexisting Technology as defined in Article 6.1.4 below; or to (iv) any rights to content owned by third-parties, which may include photographs, audio and video recordings and other forms of media, reproduction of texts, content materials and quotations (the "Third Third-Party Content"); or to (v) the Client’s “Collections”, i.e., all the Client’s owned, borrowed or cleared artifacts, specimens, objects, images, photographs, maps, diagrams, charts, illustrations, artwork, audio recordings, video, film footage and other materials that will be included in the Exhibition. Third-Party Content and the Client’s Collections as defined under this Contract shall, once the Client has secured all required clearances and rights of use required as applicable, shall together be understood to be the “Cleared Materials” under this Contract.

5.1.4 License to Client Content: Client hereby grants RAA a non-exclusive, non-transferable, worldwide royalty-free license for RAA to utilize any Client-provided content or the Collections, solely as necessary for RAA to perform the Services and create the Deliverables. The Client represents and warrants to RAA that the Client shall remain solely responsible for securing of Clearances for the Client’s Collections it determines to include in the Exhibit prior to the publication, exhibition, distribution, merchandising or any other kind of commercial display or exploitation of the Instruments of Service or the Exhibit, prior to instructing RAA to use or incorporate such Collections to the Instruments of Service or the Exhibit. Instruments of Service means the design, drawings, specifications and reports prepared by or on behalf of RAA or its subconsultants or any third parties, including but not limited to plans, sketches, drawings, graphic representations and specifications, computer-generated designs and materials.

5.2 Preexisting Materials and Technologies:

5.2.1 Notwithstanding anything to the contrary set forth above, in the event that any of the Media Services or Technologies developed under this Contract are improvements to or rely upon, for their exploitation, any items owned by RAA, RAA Consultants, or Trade Contractors, or a third-party and existing prior to commencement of the Work under this Contract and protected by any intellectual property rights of RAA, RAA Consultants, or Trade Contractors, or any other third-party ("Preexisting Materials and Technology"), then RAA, RAA Consultants, Trade Contractors, and/or any such relevant third-party shall retain ownership rights to such Preexisting Materials and Technology, provided that:

5.2.1.1 these rights are identified by RAA to the Client in writing;

5.2.1.2 there is an existing registration of intellectual property rights on the Preexisting Materials and Technology;

or it is later conclusively proven that RAA, RAA Consultants, Trade Contractors, or a third-party owned the Preexisting Materials and Technology prior to commencement of the Work; and that the Preexisting Materials and Technology was developed prior to and/or independently of RAA, RAA Consultants, or Trade Contractors, performance of the Work under this Contract.

5.2.2 For any Instruments of Service that rely on Preexisting Materials and Technology for their exploitation, RAA, subject to the Client’s compliance with the terms of this Contract (including payment terms), hereby grants the Client and its successors and assigns a royalty-free, perpetual world-wide and irrevocable license to utilize the Preexisting Materials and Technology as part of the Project, without cost beyond any payments otherwise required by this Contract.

5.3 Limitations on Use

5.3.1 In the event that the Client uses the Deliverables or the Implemented Project in a manner other than (i) their intended uses under this Contract or (ii) as otherwise approved by RAA in writing, such use shall be at the Client's sole risk and without liability to RAA or RAA's Consultants or Trade Contractors. The Client agrees to indemnify, defend and hold RAA and any RAA Consultants or Trade Contractors harmless from and against any and all claims, damages, costs or expenses, including all reasonable attorneys' fees, that may result against any such parties in connection with the inappropriate or un-authorized use, reuse, transfer or modification of the Deliverables or the Implemented Project by the Client or by a third-party to whom the Client provides either the Deliverables or the use of the Implemented Project.

5.4 RAA's Marketing and Portfolio Rights; RAA Professional Credit

5.4.1 RAA shall be allowed to photograph the Implemented Project and shall retain the right to use such photographs and the Client’s Cleared Materials, or any other likenesses or reproductions of the Project, as part of RAA's published portfolio and website, as examples of RAA's work for purposes of RAA’s publicity, public relations, submissions of the Project as a candidate for in competitions or award selections (the "Publishing Purposes").

5.4.2 RAA shall prepare and submit to the Client, for review and approval, a document describing the Project as RAA intends to describe it for the Publishing Purposes (the "Write-up"). The Client shall be allowed to edit the Write-up but the Client’s approval of it shall not be unreasonably withheld, conditioned or delayed.

5.4.3 Where applicable, the Client agrees to credit RAA, its staff and subconsultants for the work or services rendered under this Contract as follows:

5.4.4 In press releases: "NAME OF THE PROJECT planning and design by Ralph Appelbaum Associates, Inc., New York, New York.”

5.4.5 In a "Project Participants Recognition Panel" on site (where applicable): "Planning and design by Ralph Appelbaum Associates, Inc., New York, New York.”

ARTICLE 6

(Representations and Warranties)

6.1 Implementation Phase Work Warranties

6.1.1 The Implementation Phase Work shall be guaranteed to the Client by means of written warranties directly from the Trade Contractors in favor of the Client. “Implementation Phase” means the phase of work where the fabrication and installation of the Exhibition shall be performed by the Fabricators and Trade Contractors retained by the Client. “Fabricator” is a company or organization retained by the Client to fabricate and install the Exhibition to be implemented in accordance with RAA’s Final Fabrication Documents. “Trade Contractors” are those trade contractors, Fabricators, manufacturers, producers and/or material suppliers retained by the Client who shall provide the work and materials required for the implementation of the Exhibition. All such warranties shall guarantee that the Work will be of good quality and new unless otherwise required or permitted by the Final Fabrication Documents if such variation is agreed to be required to suit specific purposes of Design Intent, and that the work will be free from defects not inherent in the quality required or permitted for a period of at least one (1) year after the completion of each Trade Contractors' work.

6.1.2 RAA shall assign to the Client any and all warranties that it receives from any Trade Contractors in connection with the Work and shall not make any such warranties of its own as to any Work provided to RAA by a Trade Contractor.

6.1.3 The warranties granted or assigned to the Client shall exclude damage or defect caused by abuse, modifications not executed with RAA's written approval and under its supervision, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage, or caused by any event which constitutes "Force Majeure" as defined under this Contract.

ARTICLE 7

(Termination or Suspension)

7.1 Suspension of Work

7.2 The Client shall have the right to suspend RAA's performance of work on the Project at any time upon fifteen (15) days' written notice to RAA. In the event RAA's services are suspended, RAA shall be paid for all services rendered through the date of such suspension, including any Additional Services and Reimbursable Expenses, plus expenses directly incurred by RAA in the interruption and resumption and re-mobilization of RAA's services (including expenses incurred in connection with RAA's suspension of the work by the RAA Consultants or Trade Contractors). The Project Schedule shall be adjusted to reflect an extension of time commensurate with any such suspension of work.

7.3 Suspension of Work due to Client Delays and Interference. In the event that Client delays RAA’s performance of Services, RAA shall be entitled to suspend its services upon seven (7) written notice to the Client. Examples of such delay included but are not limited to the following:

7.3.1 Failing to approve or reject RAA services in accordance with the agreed-upon time parameters set forth in the project schedule;

7.3.2 Timely approval on only a portion of RAA service, after which the Client later reverses that approval due to reasons not related to RAA failure to meet the Standard of Care.

7.4 In the event RAA's services are suspended, RAA shall be paid for all services rendered through the date of such suspension, including any Additional Services and Reimbursable Expenses. RAA may also be paid for expenses directly incurred by RAA in the interruption and resumption and re-mobilization of RAA's services (including expenses incurred in connection with RAA's suspension of the work by the RAA Consultants or Trade Contractors). The Project Schedule may be adjusted to reflect an extension of time commensurate with any such suspension of work.

7.5 In the event Client decides to reactivate RAA services after the Suspension, RAA shall have thirty (30) days to reactivate its team to restart the unfinished services. Client agrees that it may not be possible for RAA to complete the services with the same key personnel that were identified in the contract, and Client agrees that RAA may use different individuals to complete the services, if the original key personnel are no longer available, subject to the Client’s right to approve any change to key personnel assigned. Client also agrees that in addition to paying the reasonable costs RAA incurs due to the suspension, the Client may also be required to pay greater compensation to RAA than originally agreed upon to complete the balance of the services.

ARTICLE 8

(Claims, Indemnity and Disputes)

8.1 Mutual Waiver of Consequential Damages. Except as may be expressly provided for elsewhere in Additional Terms and Conditions, the Client and RAA hereby waive consequential damages for all claims, disputes or other matters in question arising out of or relating to this Agreement, including without limitation, rental expenses, loss of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons.

8.2 Limitation of Liability. To the fullest extent permitted by law, the total liability, in the aggregate, of RAA and its officers, directors, partners, employees, agents, and subconsultants, to Client, and anyone claiming through or under Client, for any claims, losses, costs, or damages whatsoever arising out of, resulting from or in any way relating to this Project or Contract, from any cause or causes, including tort (including negligence and professional errors and omissions), strict liability, breach of contract, or breach of warranty, shall not exceed the amount of insurance proceeds available up to, and not exceeding, the minimum limits specified by the Standard terms and Conditions DOA-3054 for the primary insurance policies. This limit of liability applies to RAA’s indemnity obligations as well as any other obligations.

8.3 Save Harmless. RAA will indemnify and save harmless the State of Wisconsin and all of its officers, the

Wisconsin Historical Foundation and employees from all suits, actions or claims of any character brought for or on account of any injuries to damages received by a persons or property resulting from the willful misconduct or negligent actions or omissions of the contractor, or any of its contractors, in prosecuting work under this agreement.

ARTICLE 9

(Confidentiality)

9.1 RAA and the Client each agrees to keep any Confidential Information gathered, analyzed, or received in the course of this Contract in the strictest confidence, save for any necessary disclosures to the parties' own employees, subconsultants, or to their insurers, or professional advisers or as may be required by law or professional codes of ethics or to comply with an order to provide information or data when such order is issued by a court, administrative agency or other legitimate authority, or if disclosure is reasonably necessary for such party to defend itself from any legal action or claim. These provisions shall not apply to information that is in the public domain, other than as a result of an unauthorized disclosure by either party or any of their agents, employees, directors, shareholders or affiliates.