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HomeMy WebLinkAboutOrdinances - 25-20 - 04/07/2025 - Mural Agreement - 3425 Pearl St CITY OF MCHENRY MCHENRY COUNTY STATE OF ILLINOIS Ordinance 25-20 AN ORDINANCE AUTHORIZING THE EXECUTION OF AN AGREEMENT FOR MURAL INSTALLATION AT 3425 PEARL STREET MCHENRY ILLINOIS("MURAL INSTALLATION AGREEMENT") BETWEEN RC PJ REV TR MASTER(THE "PROPERTY OWNER"),THE CITY OF MCHENRY("CITY"),AND JENNY MATTHEWS,A MURALIST (THE "ARTIST") Passed by the Mayor and City Council Of the City of McHenry McHenry County State of Illinois Apri17, 2025 Published in pamphlet form by authority of the Mayor and City Council of the City of McHenry, McHenry County,Illinois this 8th Day of Apri12025 ORDINANCE 25-20 AN ORDINANCE AUTHORIZING THE EXECUTION OF AN AGREEMENT FOR MURAL INSTALLATION AT 3425 PEARL STREET MCHENRY ILLINOIS("MURAL INSTALLATION AGREEMENT") BETWEEN RC PJ REV TR MASTER (THE "PROPERTY OWNER"), THE CITY OF MCHENRY("CITY"),AND JENNY MATTHEWS,A MURALIST(THE "ARTIST") WHEREAS, the City of McHenry, McHenry County, Illinois is a home-rule municipality as contemplated under Article VII, Section 6, of the Constitution of the State of Illinois, and the execution of this agreement constitutes an exercise of the City's home-rule powers and functions as granted in the Constitution of the State of Illinois, and WHEREAS, the City has the authority to adopt ordinances and to promulgate rules and regulations that pertain to its government and affairs and that protect the public health, safety, and welfare of its citizens; and WHEREAS, the parties desire to execute an agreement entitled "Agreement for Mural Installation 3425 Pearl Street McHenry, Illinois;" and WHEREAS, the Corporate Authorities of the City of McHenry have found that entry into said Mural Installation Agreement is in the best interest of the City. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF MCHENRY, MCHENRY COUNTY, ILLINOIS AS FOLLOWS: Section 1: The Mayor is hereby authorized to execute the Mural Installation Agreement (attached hereto as Exhibit A and made a part hereof). Section 2: All ordinances or parts thereof in conflict with the terms and provisions hereof be and the same are hereby repealed to the extent of such conflict. Section 3: This ordinance shall be published in pamphlet form by and under the authority of the corporate authorities of the City of McHenry, Illinois. Section 4: This ordinance shall be in full force and effect from and after its passage, approval and publication as provided by law. Passed this 7th day of April, 2025. Aves Nays Absent Abstain Alderwoman Bassi x Alderman Davis x Alderman Glab x Alderman Koch x Alderman McClatchey x Alderwoman Miller x Alderman Santi x � 7"'�►:,k� 0. Wayne Jett, Mayor Monte Johnson, Deputy City Clerk EXHIBIT"A" MURAL INSTALLATION AGREEMENT 3425 PEARL STREET MCHENRY ILLINOIS (see separately attached agreement) I I � i i i jAgreement For Mural Installation j 3425 Pearl Street,McHenrv, Illinois This Agreement is made this 20�h day of Februaiy, 2025, by and between RC PJ REV TR, ' MASTER, (the"Property Owner"),the City of McHemy ("City") and Jenny Mathews, a muralist � (the"Artist") (refei-�•ed to collectively as the"Parties"), �' RECITALS WHEREAS,The Property Owner desires to retain the Artist to paint a mural (the"Mural") on the south and west-facing walls of the Property Owner's building 3425 Pearl Street,McHenry,Illinois (the "Property"); and WHEREAS,pursuant to the City of McHenry Mural Policy and Mural Administrative Rules,the Artist and Yroperly Owner desire to execute this agreement establishing the Pat�ties' rights and responsibilities concerning the Mural. The City desires to execute this Agreement, providing a monetary contribution towards the cost of the mural. NOW THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. The Mural. a. The Artist shall prepare for and shall paint the Mural in a form substantially similar to the rendering attached to this Agreement and incorporated herein as"Exhibit A"on the south and west-facing walls of the building on the Property. T'he Artist shall paint the Mural in a safe and worlananlike manner. b. The Artist shall cooperate with all the other Parties hereto in promotional activities associated with the Mural including (i) providing materials to the City for the City's website; (ii)cooperating in any community-oriented projects associated with the Mural during the time the Ai�tist is painting the Mural; c. The Artist will cooperate to provide details associated with the Mural for the application records such as the type of paint used, color specifications, and base/top coat so that fi�hire repairs can be made, if necessary. d. The Artist shall be paid a total of $18,200 for the Artist's work on the Mural in accordance with attached "E�chibit B." e. The City of McHenry shall pay the Property Owner a total sum of$9,500 upon iull completion of the Mural and acceptance by the City and the Property Owner. The City has no other obligation or liability to any parties hereunder and shall not have the obligation to pay this fee if the Mural is not fiilly completed and accepted. £ The Property Owner shall be responsible foc all costs associated with prepvatory work of the south and west walls of the Property and all subseyuent maintenance costs associated with the mural. 2. Time Schedule for Mural Comntetion. Artist is expected to complete the work within eight consecutive or near-consecutive days ("Completion Date"). However, all parties recognize that tlie preparation of an outdoor mural is dependent upon weather conditions and the health of the artist or other conditions outside the control of the Pcoperty Owner and the Artist ("Uncontrollable Conditions"). Therefore,while the Artist is expected to work diligently to meet the Completion Date, the Parties agree that, in the event of an Uncontcollable Condition, the mt�ral pcoject may be extended, but in no event shall such extension exceed the Completion Date witl�out the express, written consent of the Property Ownec and the City. 3. Post-Comnletion Repairs, Maintenance, and Removal. Ai�tist and Property Owner shall comply with the maintenance statement included in their application packet and all the Public Art Administcative Rules attached hereto and incocporated herein as"Exhibit C." 4. Termination. Prior to the completion of the Mural, this Agreement may be terminated, and the City's obligation to pay shall be waived,for any of the following conditions: a. The Property Owner shall have the right to teitininate this Agreement for any reason, including but not limited to excessive delay in completion of the Mural. In the event the Pcoperty Owner or their designee exercises its right to terminate before completion by the Artist and acceptance by the Property Owner and the City foc any reason other than an excessive delay of the Mural, Artist shall be paid (in addition to the first payment) $500 for each diligent eight-hour workday of Artist on-site at the Mural fi•om the commencement of the Mural until the termination date, but not in excess of eight total days. The Property Owner shall have no obligation to pay the Actist any outstanding balance other than as described in this Section if the Mural has not been completed and accepted by the Property Owner and the City, which acceptance shall not be unreasonably withheld. b. In the event of termination pursuant to this subparagraph,the Artist shall return to the Propei-ty Ownec any unused materials paid for with the first payment of funds, but shall not be liable foc any additional expenses, damages, or claims of any kind based on the failure to complete the Mural. c. Upon termination for any reason, all rights to any part of the Mural, whether completed or not, shall vest in the Property Owner who may arrange for the completion of the Mucal in a manner substantially consistent with the original renderings provided that the Mural has been at least 50%completed. d. The Property Owner will not be obligated to pay the artist any funds contained in this Section if the mural is not completed by the Completion Date.Any funds that ' have been previously paid will be expected to be returned to the Property Owner within 30 days,minus any reasonably documented cost for supplies. � i i 2 5. Ownershi�and Intellectual Pronerty. a. This Agreement constitutes a sale of the rendering,the image,and the Mural to the Property Owner by the Artist along with all associated rights of the Artist under local, state, and federal law, including common and statutoiy law. The Propeity Owner shall receive every legal protection that could be accorded to the Artist. This assignment explicitly includes any copyright the A�tist has or may have in the Mural,whether fully completed or not and any image contained in the Mural. b. For further clarification and to avoid any doubt, the Artist hereby grants to tlie Property Owner and City, and to the Propecty Owner's and City's agents, authorized contractors, successors in interest, and assigns, and to the Property Owner and the City, all rights to do the following with respect to the Mural including but not limited to the following rights: (i) To make, display, distcibute, sell, and authorize the malcing, display, distribution, and sale of photographs and other i�eproductions or artist renderings of the Mural for any public or commercial purpose. All rights to copies of the Mural are granted to the Property Owner and the City. (ii) To use such reproductions for any City-related purpose, including advertising, educational and promotional materials, brochures, books, flyers, postcards, print,broadcast,film,electronic,and multimedia publicity. (iii) To repair the Mural or remove the Mui�al without notice to or permission of the Ai�tist,including if the Artist does not fulfill their maintenance agreement. c. Notwithstanding the assignment by the Artist of all rights in and to the Mural, the Property Ownec, and the City shall make reasonable efforts to attribute credit to the Artist in any authorized reproduction of the Mural. Failure to include such credit in any reproductions shall not constitute a breach of this Ag�•eement. d. The Aitist warrants and represents that the renderings and the Mural transferred by this Agreement have never previously been published or copied, that the Ai-tist is the sole owner of all rights therein, and that the Mural does not infi•inge on the intellectual property rights of any third pat�ty. Artist hereby indemnifies the Property Owner and the City against any claims brought against any of those pa�ties alleging that the Mural infi•inges the intellectual property rights of any third parties, and this obligation shall survive the termination of this Agreement. e. Property Owner and the City and their autliorized contractors, successors and assigns shall have the right to use Artist's name, likeness, and biographical information, in connection with the display oc reproduction and distribution of the Mural. 3 f. With respect to the Mural produced under this Agreement, Artist hereby waives any and all claims, arising at any time and undec any circumstances, against Propei�ty Owner, the City, their officers, agents, employees, successors and assigns, arising under the federal Visual Artists Rights Act (17 U.S.C. §§106A and 113(d)) ("VARA"), and any other local, state, federal or inte►national laws that convey rights of the same nature as those conveyed under VARA or any other type of moral right protecting the integrity of works of art. Specifically, Artist hereby waives any and all such claims against the Prope��ty Owner and the City and their agents,officers and employees. g. Notwithstanding any other provisions of this Agreement,the Artist shall be able to reproduce the Mural image for Artist's own portfolio and promotional use by A�rtist but may not reproduce the image for sale or other purposes unless otherwise authorized by the Prope►�ty Owner and the City. 6. Independent Contractor. Ai�tist is, and shall be, in the performance of all work, seivices, and activities under this Agreement, an independent conlractor and not an employee, agent or servant of the Property Ownec or the City. All persons engaged in any of the work or secvices performed by or foc Aitist pursuant to this Agreement shall always, and in all places, be subject to Aitist's direction, supervision, and control as an employee of Artist.Artist shall exercise control ovec the means and manner in which its employees perform the worlc, and in all respects Attist's relationship and the relationship of its employees to Property Owner and City shall be that of an independent contractor and not as employees or agents of Property Owner or the City. 7. Indemnification and Hold Harmless. To the fullest extent pecmitted by law,Artist shall protect, defend, indemnify and hold harmless the Property Owner and the City, its elected officials, employees, agents, and volunteers fcom and against all claims, actions, liabilities, losses, costs, including attorneys' fees and all costs of litigation, and judgments of every name and description to the extent acising out of the performance of this Agreement or wock performed under or related to this Agreement including but not limited to any claims related to the intellectual propei�ty associated with the Mural. Upon completion of all services, obligations and duties pcovided for in this Agi�eement,or in the event of tecmination of this Agreement for any reason,the terms and conditions ofthis Indemnification obligation shall survive indefinitely. 8. Insurance, Aitist shall obtain insurance and provide A certificate of insurance ', establishing commercial general liability insurance in the amount not less than $1,000,000 per ' occurrence. The insurance coverage shall name the Property Owner and the City as an additional �'� insured on a primary and non-contributory basis. Artist shall also obtain requested liability and I pecsonal injury insurance coverage and include a waiver of subrogation. Such certificate shall be '� obtained prior to the cornmencement of any work on the Mural, with copies of the certificate i being provided to the Property Owner and the City. In the event Artist retains Any employees or coiitractors to assist with this Mural project, Artist shall provide proof of insurance of all I reasonable and customary and any required coverages associated with such employees. � i 4 9. Miscellaneous. a. Laws and Reeulations. Artist shall comply with all laws and regulations in any wocic associated with this Agreement. The contractor shall comply with all provisions of the Employee Classification Act (Public Act 95-0026). This Act establishes specific criteria to determine if an individual performing services for a construction contcactor is an employee or an independent contractor. The Illinois Depai�tment of Labor is responsible for the enforcement and application of this Act. b. Limited Third-Prartv BeneGciaries. No provision in this Agreement is intended to, or shall be construed to, create any third-party beneficiaty or to provide any rights to any pe►son or entity not a party to this Agreement. c. Amendment or Waiver. This Agreement may be amended only by a wciting signed by all parties hereto. No delay or omission by any party in exercising any right with respect hereto shall operate as a waiver.A waiver on any one occasion shall not be construed as a bar to,or waiver of, any riglrt or remedy on any fuither occasion. d. Severabilitv. To the extent any provision of this Agreement is prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition, or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement,provided that both sides continue to receive the benefits of their bargain. e. Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of Illinois without giving effect to the conflict of laws principles thereof. f. Entire Agreement. This Agceement is the entire agreement between the parties relating to the subject matter hereof, and it supersedes all prior oral and written agreements, undertakings, negotiations, slatements and representations, and it shall not be atnended or modified except in a writing signed by each party. � Consent of Jurisdiction and Venue. In the event that any pacty to this Agreement , commences a lawsuit or other proceeding relating to or arising from this Agreement, the pai�ties hereto agcee that 22d Judicial Circuit Court (McHenry County) for the State of Illinois shall have jurisdiction and the prevailing party shall be entitled to recover its reasonable attorney fees incurced in the defense of any such lawsuit. That court shall be the proper venue foc any such lawsuit or judicial proceeding,and the parties hereto waive any objection to such venue. , h. Notices. Any notice required or pecmitted by this Agreement to be given shall be ' deemed to have been duly given if in wciting and delivered personally or five (5) days after , mailing by first class registered or certified mail, return receipt requested, postage prepaid oc by � Federal Express, UPS oc other nationally recognized delivery service, with confirmation of delivery requested, and addressed as follows: 5 i � � i � � � ; ; ' ( i I � To Property Ownei•: RC PJ 1t�V TR, MAST�R ' I 19404 Fcanlc Couct ' ' Woodstocic,IL 60098 � � To City: City of McHenry Attn: City Administratoc ; 333 S.Green St. ' , McHenry,IL 60050 To Artist: Jenny Mathews 1407 Harlem Blvd. Rocicford,IL 61103 i. Assi�nment. This Agceement may not be assigned by Airtist to any other person or entity without the prior written consent of the other Parties. 'i ,L Counterparts. This Agceement may be executed in one oc more counterparts, !: each of which will constilule the same agceement. i IN W[TNESS WHEREOF,the Parties have hereunto set their hands and seals the day ' and year above set forth. ' W � - ayne Jett,Mayor City of McHenry • ' , � �, �a �,U//��,% �C�/�,�1��.�/�� �Jenny atth ws,Actist RC PJ REV TR,MASTER,Property Ownec I7:\R41McE[enr�-Cih�o�Mural Inslnll�tion Agreement McHenry Bre�very and Jenny Mlthews 020725.docx ' I � i i I 6 ' . � . . � '`--�. ,'.-``. t I ' �'.� � ,�Af r •� .� � � � � �� n� 11�.�� ����('�� f 1 � � � {� �{ il�� ll �1� �_ _==•A�. 'I` T1Ti_jl c � � -� v;:i" . �� . . �r�,. y• • • =�9 ` _ , •.q M . I . ... � — _ _ � �.,. ' . ; �9s �_.. �� ''r ` (I j}� ( r ��''� ���� .�:iN�)._.�' - p „ �`�' �. � r . ` k � R� 1Ett �9 ,,����1" �,: s�i� .}(,e} +i��t .,� "'�y ,p�.Es' . rc-.�3r . � , I. �� ����sl ' � �j {'�+•' '°'�� � r' . � ��.�+' �1�`,`� `y � ' °•.' },�S��f� . .. . rR, ...,.. --- � �, .;r`pti...__. • . �XHIBIT B MURAL PROPOSAL R�C�tFOi�19017,447(196 7407fi4R11171.11,D. RX1CA�f?D,�6771X3 (815)5�133566 Proposal 07022024 July 2'1,2024 Bob Master McHenry&�euwng Co. 3425 Pead St. McHenry,IL 60050 815-4032212 McHervyBrewingQGmail.oan Re:McHenry Brewing Co.Mural Mural soulh and w�est wail of 3425 Pearl St.McHerry,IL in aaylic outdoor paint accordng to statement of waic aUached.$20 per square foot.Orxe design(s approved mural fnstalla6on wi11 be scheduled Total cost for mural$18,700.00 $500 non•refundable to commence design process remaining 50%at the start of installatlon($9,100.00) and last 50%upon completion($9,100.00) Chedc payable to RockFord Illustrating vercno.com/u1 Rockfordlllustratina THANK YOU/ Rockford Illustrating 1407 1-arlem Blvd.Rockford IL 61103 Contact:Jenny Mathews(815)543-3588 Jennv1386Ca?Gmail.com g EXHIBIT C PUBLIC ART ADMINISTRATIVE RULES ELIGIBILITY CRITERIA: Public Art and Original Ai�t Mural must be accessible by the general public during the normal hours of operation of the premises upon which the Art is located.The following factors are to be consic�ered in approving Public Art and Art Murals: a. Achievement of the goals of the Public Art-Mural Policy; b. The appropriateness of the location for the installation; c. The originality and/or aesthetic quality of the work; d. The appropriateness of the art media selected for the location; e. Appropriateness of the work, including theme and size,to a chosen location, including scale of artwock to the site and obstacles of the site; f. The subject matter is consistent with the goals of the Yublic Art-Mural Yolicy and appropriate for the proposed location; g. The al�tist has demonstrated in the design, aesthetic,and functional coordination with the architecture of the building/buildings,streetscape,and /orlandscape; h. The proposed maintenance plan and funding level are consistent with"best practices"relative to the type of art media proposed; i. The applicant of the progcam has secured the right to locate the installation on private property as evidenced by a written agreement that may be subject to successful completion of the approval process; j. Any Vintage Original Ait Mural installed prior to the effective date of the policy shall have legal status and, notwithstanding any provision of this policy to the cont�•ary, not require registration under this policy; k. A Vintage Original Ait Mural that has not gained legal status through law other than the policy cannot qualify for legal status t�nder the policy if it consists of or contains any electcical or mechanical components,or changing images (moving stiuctural elements, flashing or sequential lights,lighting elements,or other automated methods that result in movement,the appearance of movement, or change of mucal image or message,not including static illumination turned off and back on not more than once every 24 hours)or does not comply with the sign cegulations in the City's Municipal Code. PUBLIC ART/MURAL REGULATIONS: An Original Art Mural or Public Art installation that meets all the following requirements will be allowed upon satisfaction of the applicable registration procedures: 1. The original art mural will remain in place, without alteration, for a minimum period of two years, unless a prior agreement is approved by the committee. "Alterations" include any change to a permitted mural, including,but not limited to, any change to the image(s), materials,colocs, or size of the permitted mural. "Alteration"does not include 9 natucally occurring changes to the mural caused by exposure to the elements or the passage of time.Minor changes to the permitted mural that result from the maintenance or repair of the mural wil] not constitute an"altecation". Such minoc changes may include slight and unintended deviations fi•om the ociginal image,colors, or materials that occur when the permitted mural is repaired due to the passage of time or as a result of vandalism.A mural may be removed within the first two years of the date of registration under the following circumstances: . a. The property on which the mural is located is sold and de-registration is permitted per the Mural Policy or Agreement; or b. The stcucture or propet�ty is substantially remodeled or altered in a way that precludes continuance of the mural; or c. The owner of a mural requests permission fi�om the City Administcatoc and Public AM Committee to remove a mural prior to the expiration of the two- year period,which may be granted upon making a�nding that a pcior agreement was approved by the committee,that the continued maintenance of the mural is not feasible and that the early removal of the mural is not in fui�therance of off-site commercial advertising. 2. No part of a mural shall exceed lhe height of the structure to which it is tiled, painted or affixed and approved. 3. No part of a mucal shall extend more than six(6) inches from the plane of the wa(1 upon which it is tiled,painted,or affixed. 4. No part of a mural shall exceed a height of 100 feet above grade. � 5. No mural may consist of,or contain,electrical or mechanical components,or changing images(moving stcuctural elements,flashing or seyuential lights, lighting j elements,or other automated methods that result in movement,the appeacance of ' movement, or change of mural image or message,not including static illumination turned off and back on not more than once every 24 hours)or otherwise does not comply with the sign regulations in the City's Municipal Code. 6. No mural shall be placed over the exterior surface of any building opening, including, but not limited to,windows,doors,and vents,unless approved by the committee. 7. No mural shall be arranged and illuminated in a manner that does not comply with the City's sign regulations regarding lighting. 8. No public art oc art mural placed on private propecty shall provide for any compensation from the artist or the City to the property owner. Compensation is herein defined as the exchange of something of value, including,but not limited to money, securities, a real propeirty interest,the barter of goods or services,the promise of future payment,or the fo►•bearance of debt,and is given to or received by said property owner,or a leaseholder with the right to possession of the wall upon which the public ai�t is to be placed,for the display of the public art,or for the right to place the public art on the property. The applicant shall certify in the registration application that no i compensation for the display of the Public Art or the right to place the Public Art on the property will be given to or received by the property owner or 10 leaseholder. However, nothing herein contained is intended to limit or prohibit the compensation of the artist. PUBLIC ART/MURAL MAINT�NANC�CRIT�RIA: Except as otherwise provided for in a written agreement,the applicant of the project shall retain responsibility for maintenance and regular uplceep of the approved Public Art or Art Mucal per the maintenance plan reviewed and approved in conjunction with the approval of the Public Art or Art Mural installation. Where appcopriate the maintenance plan for the Public A��t or Art Mural shall provide for a wall pcep plan as needed per the mural application process, and/or the treatment of the ai�t with an anti-graffiti coating, as needed. If, for any reason, a Public Art or Art Mural piece is removed,destroyed,or has deteriorated,the owner on the property on which the installation is located is responsible for removal except as otherwise provided in a wcitten agreement. APPLICATION PROCESS: 1. A Public Art or Art Mural permit must be secured for all installations.No fee shall be charged for this permit. If the installation is not completed per the approved plan,re- inspection fees may apply. 2. Application for a permit for Public Art or Art Mural must be completed by the applicant and submitted to the Yublic Art Committee through the Citv's Economic Development Depai�tment and shall include the following information: a. Completed City application form for a Public Art-Mural Permit; b. Project information on the program including each location(including alternate locations if any).A dimensional-to-scale, fiill-color rendering foc each location identifying the boundaries within which the installation is to be located.Pictures depicting the relationship of the installation to adjacent buildings and spaces. Location on a plat of survey, if available. c. The overall theme of the installation and, if applicable, a listing of the specific topics (including alternates if any)that will be addressed in the individual a��t elements of the installation; d. lnformation on the materials to be utilized for the installation and the durability of these materials; e. Maintenance plan which shall include evidence of available funds or a funding source to cover the cost of the maintenance plan as proposed; f. The Artist's portfolio showing previous finished work or work in progress; g. Acknowledgement that agreements must be secured between the property owner and the artist for each location at which an a��t installation is to be located which agreements shall, at minimum,provide rights to the applicant and/or Artist to access the property for maintenance purposes and require the owner of the property to 11 commit to maintaining the installation on the propei�ty for a minimum of two (2)years except as otherwise provided for in this Policy or the Agreement.The City of McHenry will be provided copies of the signed agreements. T�RMINATION OR REVOCATION: Public Art created or installed under a Public Art-Mural Permit that has been tecminated or revoked must be removed within 60 days of the date of the notice to removal or sooner based upon a finding by the Public Art Committee that is a detriment to the public health, safety,or welfare. If said installation is not removed within the time period provided in the notice,the City shall have the right,but not the obligation,to either remove or conteact for the removal of the non-pei•mitted Public At�t or Art Mural media and shall bill the property owner, or other responsible party as provided for in the agreement, for all costs incurred in taking this action. 12