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HomeMy WebLinkAbout1990-11-06; City Council; Resolution 90-393/I ab 0 /I RESOLUTION NO. 90-393 1 2 3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING AN AGREEMENT BETWEEN THE CITY OF CARLSBAD AND NAN ROBERTSON AND ACCEPTING A DONATION OF $6,500 FROM THE ARTS ASSOCIATES TO PAY FOR THE INSTALLATION OF THE KIOSK 4 The City Council of the City of Carlsbad, California does hereby resolve a: 5 follows: 6 1. That certain agreement between the City of Carlsbad and Nan Robertsor 7 for the installation of the Cultural Arts Kiosk to be placed in front of the C ole Library, i 8 copy of which is attached hereto marked Exhibit A and made a part hereof is herebS approved. 9 10 11 12 2. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute said agreement for and on behalf of the City of Carlsbad. 3. That funds in the amount of $6,500 are hereby accepted in the form of a donation from the Carlsbad Arts Associates to pay for the installation of the kiosk and deposited into a trust fund account. 13 14 AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larso 16 vote, to wit: 15 the City of Carlsbad on 6th day of November , 1990, by the following PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council oi 17 NOES: None A 18 ABSENT: None 19 2o I ATTEST: 21 22 m & ALETHA L. RLAZAN~, cityza 23 24 11 25 26 27 11 28 0 0 AGREEMENT FOR EXECUTION OF PUBLIC ARTWORK This agreement is entered into by the City of Carlsbad, a municipal corporatic hereinafter referred to as "CITY' and NAN ROBERTSON, hereinafter referred to as tl "ARTIST'. RECiTALS WHEREAS, the CITY is implementing a pubic art program pursuant to Carlsbad MuniciF Code Chapter 2:18 by allocating funds for the placement of artwork in public places ar authorizing payment for the design, execution, and placement of such works of art; ar WHEREAS, the CITY wants to install certain public artwork, hereinafter referred to as tl "ARTWORK', to be installed at the Georgenia Cole Library, hereinafter referred to as tl "SITE" (Exhibit "A')); and WHEREAS, the ARTIST has been selected, pursuant to procedures adopted by the Cll to install the ARTWORK; and WHEREAS, the Arts Associates have contributed funds for the execution of tl ARTWORK; NOW, THEREFORE, the CITY and the ARTIST, for the consideration and under tl conditions hereinafter set forth, agree as follows: 1. ARTIST'S OBLIGATIONS (a) The ARTIST shall, to the best of his artistic ability, fabricate, construct ar install the ARTWORK. (b) Having received written approval of the working drawings from MuniciF Projects, the ARTIST shall furnish to the CITY a tentative schedule for completion fabrication and installation of the ARTWORK, including a schedule for the submission progress reports, if any. After written approval of the schedule by the, CITY, the ARTE shall fabricate, transport and install the ARTWORK in accordance with such schedul Such schedule may be amended by written agreement between'the CITY and tl ARTIST. ! The CITY shall have the right to review the ARTWORK at reasonable times durir the fabrication thereof. The ARTIST shall submit to the CITY progress reports accordance with the schedule provided for in this Section: Revised September 13, 1: m a The ARTIST shall complete the fabrication and installation of the ARTWORK substantial conformity with the approved working drawings. The ARTIST shall present to the CIN in writing for further review and approval ar significant changes in the scope, design, color, size, material or texture of the ARTWOF not permitted by or not in substantial conformity with the Proposal. A significant chanc is any change in the scope, design, color, size, material, texture or location on the SI1 of the ARTWORK which affects installation, scheduling, site preparation or maintenanr for the ARTWORK or the concept of the ARTWORK as represented in the approve working drawings. (c) The ARTIST shall meet with representatives of public entities with jurisdictic over the ARJWORK or the SITE to address any concerns voiced by those entities. The ARTIST shall deliver, construct and install the completed ARTWORK at tt SITE in compliance with the schedule approved pursuant to Section 1 (b). (d) Upon installation of the ARTWORK, the ARTIST shall provide to the CI1 written instructions for appropriate maintenance and preservation of the ARTWORK. (e) The ARTIST shall be insured in the following manner, with the CITY name as an additional insured; The ARTIST shall be required to provide proof of automobile liabili. coverage as required by the risk manager. (9 The ARTIST shall, at the option of the CIN, meet with the general public ( representatives of the media to discuss the design of the ARTWORK. The ARTIST sh: not release any information to the public related to the services performed under tt: agreement without advance written permission of the CITY. (9) The risk of loss or damage to the ARTWORK shall be borne by the ARTIS until final acceptance, and the ARTIST shall take such measures as are necessary 1 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 SUC periods of time as the partially or wholly completed ARTWORK is in the custody, contrc or supervision of the CITY or its agents for the purposes of transporting, storing, installin or performing any other ancillary services to the ARTWORK. J (h) The ARTIST shall advise the CITY in writing when all obligations describe in Section 1 have been completed. The CITY Shall notify the ARTIST of its final acceptance of the ARTWORt Revised September 13, 19 0 W 2. CITY'S OBLIGATIONS (a) The CIlY shall make available to the ARTIST background information on tt SITE, if requested by the ARTIST. (b) The CITY shall make payment to the ARTIST as shown in Exhibit "B". Th represents payment in full. The total fee is $6,500 which includes sales tax if requirec Travel and transportation expenses of the ARTIST will not be reimbursed. (c) A plaque identifying the ARTIST, the title of the ARTWORK, if any, and tt year of the ARTWORKS completion will be displayed in the immediate vicinity of tt installed ARTWORK at the expense of the CITY. 3. OWNERSHIP OF MATERIAL SUBMITTED All materials submitted relating to the ARTWORK are the property of the CITY. 4. OWNERSHIP OF THE ARTWORK Title to the completed ARTWORK immediately vests in the CITY upon completic along with all rights of ownership, possessions 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. 5. REPRODUCTION RIGHTS The ARTIST retains all rights under the Copyright Act of 1976 (17 U.S.C. 101 1 seq.). The ARTIST grants to the CITY a fully-paid-up irrevocable license to ma! reproductions of the ARTWORK for noncommercial purposes, including but not limitc to, reproductions used in CITY business, advertising, brochures, posters, media publici 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 CI' 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 t~ City of Carlsbad, California." 6. REGISTRATION OF COPYRIGHT The responsibility for registration of the copyright shall be the responsibility of t copyright holder under this agreement. Revised September 13, 1 0 m 7. WARRANTIES (1) Warranty of Title The ARTIST represents and warrants that: (a) The ARWORK 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 tf ARTWORK nor shall the ARTIST grant permission to others to do so, except with tf written permission of the CITY. (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 mater and workmanship, including any defects consisting of "inherent vice" or qualities whic cause or accelerate deterioration of the ARTWORK; and (c) reasonable maintenance of the ARTWORK will not require procedurc substantially in excess of those described in the maintenance recommendations to t submitted by the ARTIST to the CITY hereunder. The warranties described in subsection 7(2) shall survive for a period of or year after the final acceptance of the ARTWORK. The CITY shall give notice to tt- ARTIST of any observed breach with reasonable promptness. The ARTIST shall, at tk request of the CITY, and at no cost to the CITY, cure reasonably and promptly the breac of any such warranty which is curable by the ARTIST and which cure is consistent wi professional conservation standards (including, for example, cure! by means of repair 1 refabrication of the ARTWORK). Revised September 13, 19 w 8. REPAIRS The City shall have the right to determine, after consultation with a profession conservator, when and if repairs and restorations to the ARTWORK will be made. 9. WAIVER Due to the nature of the ARTWORK and the SlTE on which it is installed, tt ARTIST and his agents, heirs, and assigns hereby waive any and all rights they may ha1 under the California Preservation Act, as set forth in Civil Code Section 987. The ARTIS his agents, heirs, and assigns also agree not to attempt to defeat this waiver t cooperating with any organization which seeks to bring an action under Civil Coc Section 989. IO. STATUS OF THE ARTIST 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 i an employee of the CITY. ARTIST shall be under control of the CITY only as to the res1 to be accomplished, but shall consult with the CITY as provided for in this agreemen 11. WITHHOLDINGS The CITY shall not make any federal or state tax withholdings on behalf of tl 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, retireme contribution, social security, overtime payment, or workers’ compensation payment whic the CITY may be required to make on behalf of the ARTIST or any employee of tl ARTIST for work done under this agreement. 12. IMMIGRATION ACT The ARTIST shall be aware of the requirements of the Immigration Reform ar Control Act of 1986 and shall comply with those requirements, including, but not limit1 to, verifying the eligibility for employment of all agents, employees, subcontractors ar consultants that are included in this agreement. 13. NONDlSCRlMlNATlON CLAUSE J The ARTIST shall comply with the state and federal laws regardi nondiscrimination. Revised September 13, 1 m w 14. COVENANTS AGAINST CONTINGENT FEES The ARTIST warrants that they have not employed or retained any company o person, other than a bona fide employee working for the ARTIST, to solicit OF secure thi: agreement, and that ARTIST has not paid or agreed to pay any company or persor other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifl or any other consideration contingent upon, or resulting from, the award or making of thi: agreement. For breach or violation of this warranty, the CITY shall have the right to annc this agreement without liability, or, in its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commissior percentage, brokerage fee, gift, or contingent fee. 15. ASSIGNMENT OF CONTRACT The ARTIST shall not assign this contract or any part thereof or any monies du thereunder without the prior written consent of the CITY. 16. 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 performel under this agreement, ARTIST shall be fully responsible to the CITY for the acts an1 omissions of ARTIST’S subcontractor and of the persons either directly or indirect1 employed by the subcontractor, as ARTIST is for the acts and omissions of person directly employed by ARTIST. Nothing contained in this agreement shall create an contractual relationship between any subcontractor of ARTIST and the CITY. The ARTIS shall bind every subcontractor and every subcontractor of a subcontractor by the term of this agreement applicable to ARTIST’S work unless specifically noted to the contrar in the subcontract in question and approved in writing by the CITY. 17. PROHlBiTED INTEREST No official of the CITY who is authorized in such capacity on behalf of the CITY t negotiate, make, accept, or approve, or take part in negotiating, making, accepting, ( approving of this agreement, shall become directly or indirectly interested personally i 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, c similar functions in connection with the performance of this contract shall become direct or indirectly interested personally in this contract or any part thereof. 18. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of tt Revised September 13, 19 w W 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. 19. CONFLICT OF INTEREST The ARTIST shall file a Conflict of Interest Statement with the City Clerk i accordance with the requirements of the City of Carlsbad Conflict of Interest Code. Th ARTIST shall report investments or interests in real property. IN WITNESS WHEREOF, we have hereunto set our hands and seals. CITY OF CARLSBAD CLAUDE A. LEWIS, Mayor ATTEST: City Clerk APPROVED AS TO FORM: City Attorney Attachments: Exhibit A Exhibit B J Revised September 13, 1' W LIXI llUl 1 m w LIPRAKY . . . ._ ,c m W EXHIBIT 'IB" Pavment Schedule A. Upon beginning of construction $2,000.00 6. Upon completion of 50% of construction $2,000.00 C. Upon acceptance of completed artwork $2,500.00 by City Council 1 Revised September 13, 1