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HomeMy WebLinkAboutSwonger, Kline E.; 2020-09-22;City Attorney Approved Version 6/12/18 1 DocuSign Envelope ID: 067946D9-45B1-437A-A8AB-B6AF03DDD008 AGREEMENT FOR LOAN OF ARTWORK & ARTIST SERVICES KLINE E. SWONGER THIS AGREEMENT is made and entered into as of the 22nd day of September 2020, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and Kline E. Swonger a Sole Proprietorship, ("Contractor”/”Lender”). RECITALS City requires the professional services of an Artist to loan artwork to the City for public display in the City’s William D. Cannon Art Gallery, 1775 Dove Lane, Carlsbad, CA. Contractor has the ability to loan the Artwork and the expertise in providing virtual programming services, has submitted a proposal to City and has affirmed its willingness and ability to share their artwork and their artwork knowledge. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the “Services”) that are defined in Exhibit “A” and loan artwork as specified in “Exhibit B”, attached and incorporated by this reference in accordance with the terms and conditions set forth in this Agreement. 2. TERM This Agreement will be effective for a period of one (1) year from the date first above written. 3. COMPENSATION The total fee payable for the Services to be performed will be one thousand five hundred dollars ($1,500). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or the Services specified in Exhibit “A.” 4. STATUS OF CONTRACTOR Contractor will perform the Services as an independent contractor and in pursuit of Contractor’s independent calling, and not as an employee of City. Contractor will be under the control of City only as to the results to be accomplished. 5. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney’s fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City’s self-administered workers’ compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. DocuSign Envelope ID: 067946D9-45B1-437A-A8AB-B6AF03DDD008 City Attorney Approved Version 6/12/18 2 6. INSURANCE Contractor will obtain and maintain policies of commercial general liability insurance, automobile liability insurance, a combined policy of workers' compensation, employers liability insurance, and professional liability insurance from an insurance company authorized to transact the business of insurance in the State of California which has a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California’s List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best’s Key Rating Guide of at least “A:X”; OR an alien non- admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report, in an amount of not less than one million dollars ($1,000,000) each, unless otherwise authorized and approved by the Risk Manager or the City Manager. Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims- made coverage. The insurance will be in force during the life of this Agreement and will not be canceled without thirty (30) days prior written notice to the City by certified mail. City will be named as an additional insured on General Liability which shall provide primary coverage to the City. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. Contractor will furnish certificates of insurance to the Contract Department, with endorsements to City prior to City’s execution of this Agreement. 7. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City For Contractor Name Richard Schultz Name Kline E. Swonger Title Cultural Arts Manager Title Artist Department Library & Cultural Arts Address 4418 ½ Louisiana Street City of Carlsbad San Diego, CA 92116 Address 1775 Dove Lane Phone No. 818-437-1176 Carlsbad, CA Email kswonger08@gmail.com Phone No. 760-602-2086 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 8. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories. Yes No 9. COMPLIANCE WITH LAWS Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment and will obtain and maintain a City of Carlsbad Business License for the term of this Agreement. DocuSign Envelope ID: 067946D9-45B1-437A-A8AB-B6AF03DDD008 City Attorney Approved Version 6/12/18 3 10. TERMINATION City may terminate this Agreement at any time after a discussion, and written notice to the Contractor. Contractor may terminate this Agreement any time before the artwork is placed for exhibition, after a discussion, and written notice to the City. City will pay Contractor's costs for services delivered up to the time of termination, if the services have been delivered in accordance with the Agreement. 11. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees it may be subject to civil penalties for the filing of false claims as set forth in the California False Claims Act, Government Code sections 12650, et seq., and Carlsbad Municipal Code Sections 3.32.025, et seq. Contractor further acknowledges that debarment by another jurisdiction is grounds for the City of Carlsbad to terminate this Agreement. 12. JURISDICTIONS AND VENUE Contractor agrees and stipulates that the proper venue and jurisdiction for resolution of any disputes between the parties arising out of this Agreement is the State Superior Court, San Diego County, California. 13. ASSIGNMENT Contractor may assign neither this Agreement nor any part of it, nor any monies due or to become due under it, without the prior written consent of City. 14. AMENDMENTS This Agreement may be amended by mutual consent of City and Contractor. Any amendment will be in writing, signed by both parties, with a statement of estimated changes in charges or time schedule. \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ DocuSign Envelope ID: 067946D9-45B1-437A-A8AB-B6AF03DDD008 City Attorney Approved Version 6/12/18 4 15. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California By: By: (sign here) SUZANNE SMITHSON Library & Cultural Arts Director As Authorized by City Manager Kline E. Swonger, Artist (print name/title) ATTEST: By: (sign here) For BARBARA ENGLESON City Clerk (print name/title) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A. Group B. Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: For CELIA A. BREWER, City Attorney By: Deputy City Attorney Audra Mahoney Audra Mahoney DocuSign Envelope ID: 067946D9-45B1-437A-A8AB-B6AF03DDD008 City Attorney Approved Version 6/12/18 5 EXHIBIT “A” SCOPE OF SERVICES LENDER will loan artwork to the City to be exhibited in the exhibition “Four Visions: A Celebration of the Year of the Woman” at the CITY’s William D. Cannon Art Gallery, 1775 Dove Lane, Carlsbad, CA as well as provide additional services as described below. 1. CITY’S CONTACT INFORMATION: • Cultural Arts Manager, Richard Schultz, 760-602-2086, Richard.Schultz@Carlsbadca.gov • Curator of Exhibitions, Karen McGuire, 760-602-2022, Karen.McGuire@Carlsbadca.gov • Cultural Arts General Phone # 760-602-2090 *Throughout COVID-19 pandemic, staff may have adjusted hours and work locations. Email may be the initial preferred method of reaching staff. 2. EXHIBIT LOCATION: William D. Cannon Art Gallery, 1775 Dove Lane, Carlsbad, CA 3. ARTWORK LOAN PERIODS • Artwork loan period: September 25, 2020 – March 17, 2021 • Gallery exhibit period: October 4, 2020 – March 7, 2021 LENDER agrees to loan the Artwork specified on the checklist attached as Exhibit "B." The Artwork will remain in the CITY'S possession during the loan period but may be withdrawn from the exhibition at the CITY'S sole discretion. CITY will notify LENDER when any Artwork is withdrawn from the exhibit. CITY and LENDER may agree in writing to extend the duration of this Agreement. Acceptance of the Artwork does not imply that the Artwork will be placed or maintained on public display for the Agreement's exhibit duration. LENDER agrees to loan the Artwork specified on the checklist attached as Exhibit "B" of this Agreement to CITY. 4. TRANSPORTATION AND PACKING LENDER will transport and deliver Artwork and oversee the artwork installation at the Cannon Art Gallery. LENDER certifies that the work to be loaned to the CITY under the terms and conditions of this Agreement is in good condition. CITY shall inspect the Artwork and complete and sign the opening condition report for each piece of Artwork, which will constitute the property's condition at the time of the receipt of the Artwork loan. Any discrepancies, losses, or evidence of damage to the Artwork noted at the time of inspection or at any time while in the CITY'S custody will be reported immediately to the LENDER. LENDER will deliver Artwork to the Cannon Art Gallery by loan start date, as described above. At the end of the exhibition, LENDER will be responsible for picking up ARTWORK within three days, no later than the date described above, unless other written arrangements are made between CITY and LENDER. All drop-off and pickup deliveries shall be coordinated with the CITY's Cultural Arts Manager or Designee. DocuSign Envelope ID: 067946D9-45B1-437A-A8AB-B6AF03DDD008 City Attorney Approved Version 6/12/18 6 5. LENDER Virtual Programming LENDER will be available to participate in virtual exhibition programming such as virtual tours, audio, or on-camera interviews and any media opportunity. All virtual programming will be coordinated in advance with the City's gallery curator and shall constitute “work made for hire” under the United States Copyright Act of 1976 [17 U.S.C. §§ 101, et seq.] and any other applicable law. CITY reserves the right to audio and/or video record and to reproduce and distribute any lecture, reading or speaking engagement, and musical concert or musical Performance performed under this Agreement as virtual programming. City may retain the recording in its files, may replay the recordings for its employees and the public, including the right to post, replay, or broadcast the recordings on the City’s YouTube channel, the City’s cable channel, the City’s Library Facebook Live account, and other similar City internet-based platforms, and may make the recording available for non-circulation use at its library facilities. City shall not sell the recording. City shall provide a copy of the recording to the Performer, upon the Performer’s request. Press Kit Upon execution of Agreement, the LENDER agrees to provide a high-resolution image of self (headshot preferred) and written biography (up to 300 words) as well as four (4) to five (5) high- resolution images of Artwork being shown in the gallery. Images shall be delivered to the City's gallery curator in electronic form immediately upon the Agreement's execution. Warranty of Title LENDER warrants that LENDER is either the owner of the Artwork or the authorized agent of the lawful owner or artist of the Artwork and has the authority to enter into this Agreement and to grant the rights to CITY as set forth in this Agreement. LENDER also warrants that the Artwork (s) is not now or will be subjected to claims of ownership, lien, encumbrance, copyright infringement, or trademark infringement under any state or federal law. LENDER shall indemnify the CITY, its officers, and employees for all damages related to a claim asserting a violation or claim of violation of this Warranty of Title, including reasonable attorney fees and costs. Artwork Withdrawals Lender agrees once Artwork is placed for exhibition, it cannot be withdrawn from an exhibition by the LENDER for any reason. 6. CITY Artwork Installation CITY shall install and exhibit the Artwork. CITY reserves the right to make the final decision on which items will be included in the exhibition, and the arrangement of the exhibit. CITY shall take reasonable steps to preserve the exhibited Artwork against adverse environmental conditions, deterioration, damage, or theft. Artwork Inspection Artwork will be visually inspected upon receipt, and any noticeable damage will be documented on the shipping receipt. Evidence of damage to Artwork while in the CITY'S custody will be reported immediately to the LENDER. CITY may elect to display damaged Artwork if, in CITY'S sole determination, the displaying of the damaged Artwork will not exacerbate the preexisting damage. DocuSign Envelope ID: 067946D9-45B1-437A-A8AB-B6AF03DDD008 City Attorney Approved Version 6/12/18 7 7. REPRODUCTION RIGHTS, PUBLICITY AND PHOTOGRAPHY Except as limited by this Agreement, LENDER retains any or all copyright, licensing, and/or ownership rights to the Artwork available to him/her under state or federal law. In accordance with Section 5 of the Scope of Work, LENDER grants CITY the right to photograph, telecast, or make similar visual reproductions of the Artwork covered by this Agreement for publicity and advertising purposes and other educational purposes and in catalogues or posters that it distributes. CITY agrees to acknowledge the artist on all related print matter, exhibition announcements, publicity releases, invitations, posters, signs, or other promotional or educational materials relating to the Artwork. 8. HEALTH & SAFETY During the COVID-19 health-related pandemic, all activities occurring at City facilities, all Parties must adhere to the guidance from the state, county, and local authorities on health and safety protocols. City staff will inform Artist what the current guidelines are prior to their arrival and entering any City facility. Safety protocols may include, but are not limited to, hand washing, temperature testing, requiring face covering, maintaining physical distancing of six feet. The safety protocols may be modified at any time due to changing rules, regulations, or circumstances. 9. CONTRACTOR FEES / INVOICING Fees The total fee payable for the Services to be performed will be one thousand five hundred dollars ($1,500). Payment Schedule - • 1st Payment $750 Upon Exhibition Opening • 2nd Payment $750 Upon Pickup of Artwork Invoicing & Payment Contractor's invoice will be responsible for submitting invoices for Payment to the City of Carlsbad's Cultural Arts Manager or designee, as designated on the schedule above. All invoices shall be detailed to include related activities. Final invoice approval will be completed by the Library & Cultural Arts Director or designee. DocuSign Envelope ID: 067946D9-45B1-437A-A8AB-B6AF03DDD008 City Attorney Approved Version 6/12/18 8 EXHIBIT “B” William D. Cannon Art Gallery Artwork Loan Lender: Kline Swonger Lender phone: (818) 437-1176 Lender address: 4418 ½ Louisiana St. San Diego, CA 92116 Lender email: kswonger08@gmail.com Total number of works: 3 Total insurance value: $23,000 1. Title: Crossing the Line Insurance Value: $10,000 Size: 18’ x 20’ x 11’ Media: Sheet steel, fabric, thread, buttons, and plaster teeth Year made: 2019 Description: Hanging sheet steel Credit line: Kline Swonger 2. Title: A Place Called Home Insurance Value: $8,000 Size: 19’ x 6’ x 3” Media: Soil collected from 117 residents cast into concrete doorknobs Year made: 2020 Description: Installation piece of doorknobs Credit line: Kline Swonger 3. Title: Between Here and There Insurance Value: $5,000 Size: 7’ x 13’ x 6” Media: Mixed media, light, and salt Year made: 2020 Description: Installation with mixed media sculpture and light Credit line: Kline Swonger DocuSign Envelope ID: 067946D9-45B1-437A-A8AB-B6AF03DDD008 8/18/2020 Coverage Summary Coverage Summary Print Policy Number: 4174052102 Policy Period: 08/28/2020 to 02/28/2021 Your current 6 month premium: $697.50 These coverages apply across all vehicles *For specific details, consult your policy contract. For Others The below coverages pay out to other parties if the accident is your fault. Bodily Injury Liability $50,000 per person/$100,000 per occurrence $177.60 State Minimum: $15,000 per person/$30,000 per occurrence Pays if you are responsible for another person's injury or death in an auto accident. It also pays for your legal defense. Property Damage Liability $50,000 per occurrence State Minimum: $5,000 per occurrence $191.80 Pays if you are responsible for damage to another person's property. For You The below coverages pay out to you and your passengers. Medical Payments $5,000 per person $47.20 Pays medical expenses such as surgery, x-rays, ambulance, and physicians, regardless of who was at fault. Uninsured Motorist & Underinsured Motorist $50,000 per person/$100,000 per occurrence $73.90 Pays for injuries caused by an uninsured, underinsured or hit-and-run motorist. Vehicle Coverage Vehicle total 6 month premium: $697.50 2008 TOYOTA YARIS Comprehensive Deductible: $1,000 $20.90 Pays for vehicle and glass damage due to, among other causes, theft, vandalism, explosion and fire. Collision Deductible: $1,000 $172.90 Pays for damages to your vehicle caused by a collision or when it overturns. Emergency Road Service Full Coverage Vehicle $13.20 Covers towing, labor for flat tires, jump starts, and more. Get help 24/7 on the GEICO Mobile app. https://service.geico.com/insite/simplifiedCoverageSummary.xhtml?CW6305D=228477 1/2 DocuSign Envelope ID: 067946D9-45B1-437A-A8AB-B6AF03DDD008 WAIVER REQUEST FORM FACTORS IN SUPPORT OF REQUEST TO MODIFY INSURANCE REQUIREMENT(S) Generally, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving the requirement(s). Requested by: Karen McGuire, Library & Cultural Arts September 2, 2020 (Name and Department) (Date) Proposed modification(s) to the requirement(s) for Kline Swonger (Type of insurance) (Name of contract) Reduce coverage to the amount of: $ . Waive coverage Other: FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check those that apply) Significance of Contractor: Contractor has previous experience with the City that is important to the efficiency of completing the scope of work and the quality of the work-product. [explain] Significance of Contractor: Contractor has unique skills and there are few if any alternatives. [explain: include number of candidates RFP sent to and number responded if applicable] Contract Amount/Term of Contract: $ . Work will be completed over a period of . Professional Liability coverage is not available to this contractor or would increase the cost of the contract by $ [explain]. Other (e.g. explain why exposures are minimal, how exposures are covered in another policy, exposure control mechanisms, and any other information pertinent to your request): All activities on this agreement are speaking and loan of artwork in the Cannon Art Gallery, 1775 Dove Lane, Carlsbad, 92011. Approved by Risk Manager for this contract only: 9/9/2020 (Date) X X (Signature)