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HomeMy WebLinkAbout1990-11-06; City Council; Resolution 90-3920 0 RESOLUTION NO. 90-392 1 2 3 4 5 6 7 €3 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A CONTRACT BETWEEN THE CITY OF CARLSBAD AND ARTIST RAUL GUERRERO INCORPORATING ARTWORK IN THE CARLSBAD BOULEVARD SHORE PROTECTION PROJECT The City Council of the City of Carlsbad, California, does hereby resolve ~ follows: 1. That certain contract between the City of Carlsbad and artist R: Guerrero for the design and execution of public art to be incorporated the Seawall, a copy of which is attached hereto and marked Exhibit I and made a part hereof, is hereby approved. 2. The Mayor of the City of Carlsbad is hereby authorized and directed execute said contract for and on behalf of the City of Carlsbad. 3. That funds in the amount of $30,000 are appropriated in the Public 1 Fund for this purpose. NOW THEREFORE, BE IT RESOLVED that the City Council of the City 1 Carlsbad, California, authorizes expenditures from the Public Art Fund (acct. no. 142-8: 1 81 0-3353). ~ PASSED, APPROVED AND ADOPTED, at a regular meeting of the City Council the City of Carlsbad, California, held on the 6th day of November , 1990, by t following vote, to wit: AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Lar: NOES: None ABSENT: None ATEST: 27 28 0 0 AGREEMENT FOR DESIGN AND EXECUTION OF PUBLIC ARWORK This agreement is entered into by the City of Carlsbad, a municipal corporatio hereinafter referred to as "CITY" and RAUL GUERRERO, hereinafter referred to as tk "ARTIST'. RECITALS WHEREAS, the CITY is implementing a public art program pursuant to Carlsbz Municipal Code Chapter 2:18 by allocating funds for the placement of artwork in pub1 places and authorizing payment for the design, execution, and placement of such worl of art; and WHEREAS, the CITY wants to purchase certain public artwork, hereinafter referred to i the "ARTWORK", to be installed at the Carlsbad Boulevard Shore Protection Projec hereinafter referred to as the "SITE1 (Exhibit "A"); and WHEREAS, the ARTIST has been selected, pursuant to procedures adopted by the CIT' to create the ARTWORK and funds have been allocated for that purpose; NOW, THEREFORE, the CITY and the ARTIST, for the consideration and under tt conditions hereinafter set forth, agree as follows: 1. ARTIST'S OBLIGATIONS (a) The ARTIST shall, to the best of his artistic ability, design, fabricatc construct and install the ARTWORK. (b) The ARTIST shall create the ARTWORK taking into consideration the natul of the SITE, the surrounding community, the amount of money allocated for th ARTWORK by the CITY ( a total of $30,000, to include both DESIGN and execution of th ARTWORK as shown in Exhibit ''C'), and the amount of maintenance required. (c) The ARTIST shall create the ARTWORK taking into consideration the safei of the public, including, but not limited to,-the safety of persons travelling on public righi of way. (d) The ARTIST shall create the ARTWORK in a manner which conforms t regulations of all public agencies with jurisdiction over the SITE ar the ARTWORK and t all other applicable laws, regulations and standards, including but not limited to, federa state, and local. Revised 10/24/S 0 .. (e) The ARTIST shall meet regularly with CITY staff, including but not limited tc the Municipal Projects Manager, Project Manager and Arts Office Manager (Exhibit "B" to insure the design and implementation of the ARTWORK complies with all provisior of this agreement. . (9 Within 60 days after the execution of this agreement by the CITY, tt ARTIST shall submit to the Carlsbad Arts Commission a design concept, hereinaft referred to as "DESIGN', in a tangible form. The Arts Commission shall within reasonable time, following the submission of the DESIGN, approve or disapprove tt- DESIGN. If the DESIGN is disapproved, the ARTIST may submit a second DESIGN 1 the Carlsbad Arts Commission within 60 days. The Arts Commission shall notify tt- ARTIST within a reasonable time whether it approves or disapproves the second DESlGf If the Arts Commission disapproves, the contract shall terminate with payment made 1 the ARTIST as shown in EXHIBIT "C" and all DESIGN materials shall be returned to tk ARTIST. In that event, neither party shall have further obligation to the other, with tt- exception of the ARTIST'S obligations under the hold harmless and indemnity provisior of this agreement. (9) The DESIGN shall specify materials, dimensions, finish, color, and any otht information which is necessary for the preparation of working drawings. The DESIG, shall also include the maintenance requirements and installation method contemplate by the ARTIST and an estimate of their cost. The DESIGN shall include a model, if model is necessary to present a meaningful representation of the design. This will t mutually agreed upon by the Arts Office Manager and the ARTIST in advance. (h) The ARTIST shall furnish all supplies, materials and equipment necessa for preparation of the DESIGN and execution of the ARTWORK. (i) After approval, the ARTIST shall submit the DESIGN to Woodward-Clyc Consultants, hereinafter referred to as the "ENGINEERS", for preparation of workin drawings if the Municipal Projects Manager determines working drawings are necessar (j) The ARTIST shall meet with the ENGINEERS as necessary to insure that tt working drawings correctly depict the DESIGN and meet the acceptance standards of tt CITY as interpreted by the City Engineer. (k) After approval of the DESIGN pursuant to Section 1 (f), the ARTIST Shi furnish to the Arts Office Manager a tentative schedule for completion of fabrication ar installation of the ARTWORK, including a schedule for the submission of progress report After written approval of the schedule by the Arts Office Manager, the ARTIST sh; fabricate, transport and install the ARTWORK in accordance with such schedule. SUC schedule may be amended by written agreement between the Arts Office Manage Municipal Projects Manager and the ARTIST. Revised 10124 0 0 The Arts Office Manager and the Municipal Projects Manager shall have the rig to review the ARTWORK at reasonable times during the fabrication thereof. The ARTI: shall submit to the Arts Office Manager progress reports in accordance with the schedu provided for in this Section. (I) The ARTIST shall complete the fabrication and installation of the ARTWOF in substantial conformity with the DESIGN and the working drawings If it is discovered, after the approval of the DESIGN, that revisions to the DESlG are necessary for the ARTWORK to comply with any law, standard or regulation, tt ARTIST shall make such revisions as are necessary. If the revisions required substantia change the approved DESIGN, the Arts Commission may approve the revisions t recommend termination of the contract pursuant to the termination clause in Section , Minor changes may be .approved by the City Engineer. (m) The ARTIST shall meet with representatives of public entities with jurisdictic over the ARTWORK or the SITE to address any concerns voiced by those entities. (n) The ARTIST shall notify the Municipal Projects Manager and the Arts WIC Manager in writing when fabrication of the ARTWORK is completed and he is ready fi its delivery and installation at the SITE. The ARTIST shall deliver and install the completed ARTWORK at the SITE i compliance with the schedule approved pursuant to Section 1 (k). The ARTIST shz immediately notify the Engineering Department of any problem associated with tt installation of the ARTWORK, including but not limited to, nonconformity with the DESlGl violations of law, safety problems, poor quality of materials or workmanship or conditior which would endanger the long term existence of the ARTWORK. The CITY shall be responsible for all expenses, labor and equipment to prepar the SITE for the timely installation of the ARTWORK, including landscaping, footing! plumbing, and area and spot lighting of the ARTWORK. ' (0) Upon installation of the ARTWORK, the ARTIST shall provide to the Cii Engineer written instructions for appropriate maintenance and preservation of tf- ARTWORK. (p) The ARTIST shall be insured in the following manner, with the CITY name as an additional insured; The ARTIST shall be required to provide a certificate of insurance indicatin $1 million liability coverage, showing the CITY as additional insured. Liability insuranc shall cover the design and execution of this project. Insurance shall date from the fir! day of construction until one year after acceptance by the City Council. The ARTIST shall be required to provide proof of automobile liabilit coverage as required by the Risk Manager. Revised 10/24/! 0 a (9) The ARTIST shall, at the option of the Arts Office Manager, meet with tt general public or representatives of the media to discuss the design of the ARTWOR The ARTIST shall not release any information to the public related to the servicc performed under this agreement without advance written permission of the Arts 0ffi1 Manager. (r) The risk of loss or damage to the ARTWORK shall be borne by the ARTI! until final acceptance, and the ARTIST shall take such measures as are necessary protect the ARTWORK from loss or damage until final acceptance; except that the ri: of loss or damage shall be borne by the CITY prior to final acceptance during su( periods of time as the partially or wholly completed ARTWORK is in the custody, contr or supervision 'of the CITY or its agents for the purposes of transporting, storing, installir or performing any other ancillary services to .the ARTWORK. 2. CITY'S OBLIGATIONS (a) The CITY shall make available to the ARTIST background information on tl SITE, if requested by the ARTIST. (b) The CITY shall make payment to the ARTIST as shown in Exhibit "C". Tt represents payment in full. The total fee is $30,000 which includes sales tax if requirt and all travel and transportation expenses of the ARTIST. (c) A plaque identifying the ARTIST, the -title of the ARTWORK, if any, and ti year of the ARTWORKS completion will be displayed in the immediate vicinity of tl installed ARTWORK at the expense of the CITY. 3. TIME EXTENSiONS The City will grant a reasonable extension of time to the ARTIST in the eve that there is a delay on the part of the CITY in performing its obligations under tt .agreement, or if conditions beyond the ARTIST'S control or acts of God render timc performance of the ARTIST'S services impossible or unexpectedly burdensome. Failu to fulfill contractual obligations due to conditions beyond either party's reasonable conti will not be considered a breach of contract; provided that such obligations shall I suspended only for the duration of such conditions. 4. TERMINATION If either party to this agreement shall willfully or negligently fail to fulfill in a timc and proper manner, or otherwise violate, any of the covenants, agreements or stipulatio, material to this agreement, the other party shall thereupon have the right to terminate tt agreement by giving written notice to the defaulting party of its intent to termin2 specifying the grounds for termination. The defaulting party shall have (30) days afl receipt of the notice to cure the default. If it is not cured, then this agreement sh terminate. In the event of default by the CITY, the CITY shall compensate the ARTIST 1 all services performed by the ARTIST prior to termination according to the schedi shown in Exhibit 92". In the event of default by the ARTIST, all finished and unfinishl Revised 1012' a e drawings, sketches, photographs, and other work products prepared and submitted prepared for submission by the ARTIST under this agreement shall at the CITY'S optic become its property, provided that no right to fabricate or execute the ARTWORK sh pass to the CITY and the CITY shall compensate the ARTIST according to the schedl shown in Exhibit "c" for all services performed by the ARTIST prior to detal Notwithstanding the previous sentence, the ARTIST shall not be relieved of liability to tt CITY for damages sustained by the CITY by virtue of any breach of this agreement by tt ARTIST, and the CITY may reasonably withhold payments to the ARTIST until such tin as the exact amount of such damages due the ClW from the ARTIST is determined. 5. OWNERSHIP OF MATERIAL SUBMllTED All materials submitted relating to the ARTWORK or the DESIGN are the propel of the CITY. 6. OWNERSHIP OF THE ARTWORK Title to the completed ARTWORK immediately vests in the CITY upon completio along with all rights of ownership, possession and control. Prior to completion of tt ARTWORK, CITY shall have the right, at its option, to claim ownership, possession ar control of the uncompleted portions of the ARTWORK which are on the SITE. 7. REPRODUCTION RIGHTS The ARTIST retains all rights under the Copyright Act of 1976 (17 U.S.C. 101 t seq.). The ARTIST grants to the CITY a fully-paid-up irrevocable license to mal reproductions of the' ARTWORK for noncommercial purposes, including but not limit€ to, reproductions used in CITY business, advertising, brochures, posters, media publici1 catalogs, souvenirs, photographs, drawings, or publications of the CITY, providir however, the CITY may not make a full scale exact duplicate of the ARTWORK. The Cl' shall include the ARTIST'S copyright notice on any reproductions and the ARTIST sh include the following words on any reproduction: "An original work commissioned by tl City of Carlsbad, California." 8. REGISTRATION OF COPYRlGHT The responsibility for registration of the copyright shall be the responsibility of tt copyright holder under this agreement. Revised 1 QJ24 a 0 9. WARRANTIES 1. Warranty of Title The ARTIST represents and warrants that: (a) The ARTWORK is solely the result of the artistic effort of the ARTIST. (b) The ARTWORK is unique and original and does not infringe upon ar copyright. (c) The ARTWORK or a duplicate of the ARTWORK has not been so elsewhere. (d) The ARTIST shall not make any exact duplicate reproduction of th ARTWORK nor shall the ARTIST grant permission to others to do so, except with th written permission of the CIN. 2. Warranty of Quality and Condition The ARTIST represents and warrants that: (a) The execution and fabrication of the ARTWORK, will be performed in workmanlike manner. (b) The ARTWORK, as fabricated and installed, will be free of defects in materi; and workmanship, including any defects consisting of "inherent vice" or qualities whic cause or accelerate deterioration of the ARTWORK. (c) Reasonable maintenance of the ARTWORK will not require procedure substantially in excess of those described in the maintenance recommendations to k submitted by the ARTIST to the CITY hereunder. The warranty of quality and condition shall survive for a period of one ye: after the final acceptance of the ARTWORK. The CITY shall give notice to the ARTIST c any observed breach with reasonable promptness. The ARTIST shall, at the request ( the CITY, and at no cost to the CITY, cure reasonably and promptly the breach of ar such warranty which is curable by the ARTIST and which cure is consistent wit professional conservation standards (including, for example, cure by means of repair c refabrication of the ARTWORK). IO. REPAIRS The CITY shall have the right to determine when and if repairs and restorations to th ,ARTWORK will be made. Revised 101241 0 0 11. WAIVER Due to the nature of the ARTWORK and the SITE on which it is installed, t ARTIST and his agents, heirs, successors and assigns hereby waive any and all rig1 987. The ARTIST, his agents, heirs, and assigns also agree not to attempt to defeat ti waiver by cooperating with any organization which seeks to bring an action under C Code Section 989. 12. STATUS OF THE ARTIST .1 they may have under the California Preservation Act, as set forth in Civil Code Secti The ARTIST shall perform the services provided for herein in ARTIST'S own w as an independent contractor.and in pursuit of ARTIST'S independent calling, and not an employee of the CITY. ARTIST shall be under control of the CITY only as to the res to be accomplished, but shall consult with the CITY as provided for in this agreemen 13. WITHHOLDINGS The CITY shall not make any federal or state tax withholdings on behalf of t ARTIST. The CITY shall not be required to pay workers' compensation insurance behalf of the ARTIST. The ARTIST agrees to indemnify the CITY for any tax, retiremc contribution, social security, overtime payment, or workers' compensation payment whi the CITY may be required to make on behalf of the ARTIST or any employee of t ARTIST for work done under this agreement. 14. IMMIGRATION ACT The ARTIST shall be aware of the requirements of the Immigration Reform a1 Control Act of 1986 and shall comply with those requirements, including, but not limit1 to, verifying the eligibility for employment of all agents, employees, subcontractars a1 consultants that are included in this agreement. 15. NONDISCRIMINATION CLAUSE The ARTIST shall comply with the state and federal laws regardir nondiscrimination. 16. COVENANTS AGAINST CONTINGENT FEES The ARTIST warrants that they have not employed or retained any company person, other than a bona fide employee working for the ARTIST, to solicit or secure tl agreement, and that ARTIST has not paid or agreed to pay any company or persc other than a bona fide employee, any fee, commission, percentage, brokerage fee, g or any other consideration contingent upon, or resulting from, the award or making of tt agreement. For breach or violation of this warranty, the CITY shall have the right to anr this agreement without liability, or, in its discretion, to deduct from the agreement pri or consideration, or otherwise recover, the full amount of such fee, commissic percentage, brokerage fee, gift, or contingent fee. Revised 10124 0 e 17. HOLD HARMLESS AGREEMENT The CIN, its officers, and employees shall not be liable for any claims, liabilitk penalties, fines, for any damage to goods, properties, or effects of any persr whatsoever, nor for personal injuries or death caused by, or resulting from, any intention or negligent acts, errors or omissions of ARTIST or ARTIST's agents, employees, ( representatives. ARTIST agrees to defend, indemnify, and save free and harmless tt CITY and its officers and employees against any of the foregoing liabilities or claims any kind, and any cost and expense including attorney's fees incurred by the CITY ( account of any of the foregoing liabilities, including liabilities or claims by reason alleged defects in the DESIGN. 18. ASSIGNMENT OF CONTRACT The ARTIST shall not assign this contract or any part thereof or any monies dt thereunder without the prior written consent of the CITY. 19. SUBCONTRACTING The ARTIST shall not subcontract any portion of this agreement without writte permission from the CITY. If the ARTIST subcontracts any of the work to be performe under this agreement, ARTIST shall be fully responsible to the CITY for the acts ar omissions of ARTIST's subcontractor and of the persons either directly or indirect employed by the subcontractor, as ARTIST is for the acts and omissions of persor directly employed by ARTIST. Nothing contained in this agreement shall create ar contractual relationship between any subcontractor of ARTlST and the CITY. The ARTlI shall bind every subcontractor and every subcontractor of a subcontractor by the tern of this agreement applicable to ARTIST's work unless specifically noted to the contra1 in the subcontract in question and approved in writing by the CITY. 20. PROHIBITED INTEREST No official of the CITY who is authorized in such capacity on behalf of the CITY * negotiate, make, accept, or approve, or take part in negotiating, making, accepting, ( approving of this agreement, shall become directly or indirectly interested personally this contract or in.any part thereof. No officer or employee of the CITY who is authorize in such capacity and on behalf of the CITY to exercise any executive, supervisory, ( similar functions in connection with the performance of this contract shall become direct or indirectly interested personally in this contract or any part thereof. 21. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of tt CITY, either before, during or after the execution of this contract, shall affect or modii any of the terms or obligations herein contained nor entitle the ARTIST to any addition, payment whatsoever under the terms of this contract. Revised 10/24/ 0 0 22. CONFLICT OF INTEREST The ARTIST shall file a Conflict of Interest Statement with the City Clerk accordance with the requirements of the City of Carlsbad Conflict of interest Code. Tt ARTIST shall report investments or interests in real property. IN WITNESS WHEREOF, we have hereunto set our hands and seals. CITY OF CARLSBAD a&(& CLAUDE A. LEWIS, Mayor w ATTEST: APPROVED AS TO FORM: City Clerk City Attorney Attachments: Exhibit A Exhibit B pr. 4 ' KAREN J. HIRATA - OEPUTY CITY AITQRNEY Exhibit C Revised 1 Ol2L LbCATlON MB '< LEGEND v/h AREA TO BE IMPROVED .. i +@pa. .A ?--X..<:&% R1P-RAP TO BE INSTALLED <.*C?.O. :.-Bo I PROJECT NAME PROJECT idc E SHORE PROTECTION WALL 3307 b .. I, m a EXHIBIT "B" The ARTIST will work with the City of Carlsbad, Arts Office, who will be responsible i administering this contract. 1. Connie Beardsley, Manager Arts Office City of Carlsbad 1200 Elm Avenue Carlsbad, CA 92008 2. Jim Wilstermann, Public Art Administrator Arts Office City of Carlsbad 1200 Elm Avenue Carlsbad, CA 92008 3. John Cahill, Manager Municipal Projects City of Carlsbad 2075 Las Palmas Carlsbad, CA 92009 4. Pat Entezari, Project Manager Municipal Projects City of Carlsbad 2075 Las Palmas Carlsbad, CA 92009 6 1 9-434-29 61 9-434-29 61 9-438-1 1 61 9-438-1 1 5. Louis Lee, Vice President Woodward-Clyde Consultants 1550 Hotel Circle N. San Diego, CA 92108 61 9-294-94 Revised 1Q/Z 0 'a EXHIBIT "C" . Pavment Schedule A. Upon presentation of initial DESIGN to the Arts Commission B. Upon approval of DESIGN or disapproval of second DESIGN $2,500.00 $2,500.00 C. Upon acceptance of working drawings $5,000.00 D. Upon beginning of construction $5,000.00 E. Upon completion of 50% of construction $5.000.00 F. Upon completion of 75% of construction G. Upon acceptance- of completed ARTWORK $5,000.00 $5,000.00 D-.,: -A .nmr