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HomeMy WebLinkAboutHobson, Paul; 2000-03-10;AGREEMENT FOR DESIGN AND EXECUTION OF PUBLIC ARTWORK This agreement is entered into by the City of Carlsbad, a municipal corporation, hereinafter referred to as “CITY” and Paul Hobson, hereinafter referred to as “ARTIST”. RECITALS WHEREAS, the CITY is implementing a public art program pursuant to Carlsbad Municipal Code Chapter 2:18 by allocating funds for the placement of artwork in public places and authorizing payment for the design, execution and placement of such works of art; and WHEREAS, the CITY wants to purchase certain public artwork, hereinafter referred to as the “ARTWORK”, to be installed at the entrance to Carrillo Ranch Park, hereinafter referred to as the “SITE” (Exhibit “A”); and WHEREAS, the ARTIST has been selected, pursuant to procedures adopted by the CITY, to create the ARTWORK and funds have been allocated for that purpose; NOW, THEREFORE, the CITY and the ARTIST, for the consideration and under the conditions hereinafter set forth, agree as follows: 1. ARTIST’S OBLIGATIONS (4 The ARTIST shall, to the best of his artistic ability, design, fabricate, construct and install the ARTWORK. W The ARTIST shall create the ARTWORK taking into consideration the nature of the SITE, the amount of money allocated for the ARTWORK by the CITY (a total of $32,000 to include both DESIGN and execution of the ARTWORK as shown in Exhibit “B”), and the amount of maintenance required. (4 The ARTIST shall create the ARTWORK taking into consideration the safety of the public, including, but not limited to, the safety of persons travelling on public rights of way. (d) The ARTIST shall create the ARTWORK in a manner which conforms to the regulations of all public agencies with jurisdiction over the SITE or the ARTWORK and to all other applicable laws, regulation and standards, including but not limited to, federal, state, and local. (e) The ARTIST shall meet regularly with CITY staff and contractors, including but not limited to the Arts Manager, the Parks Development Coordinator and the CITY’s landscape architects, to ensure the design and implementation of the ARTWORK complies with all provisions of this agreement. If) Within 30 days after the execution of this agreement by the CITY, the ARTIST shall submit to the Carlsbad Arts Commission a design concept from the approved Carrillo Ranch Master Plan, hereinafter referred to as “DESIGN,” in a tangible form. The DESIGN shall specify materials, dimensions, finish, color, and any other information necessary for the Arts Commission to evaluate the DESIGN and for CITY staff and contractors to plan for the ARTWORK’s installation. THE DESIGN shall also include the maintenance requirements and installation method contemplated by the ARTIST and an estimate of its cost. In addition, the DESIGN shall include a model to present a meaningful representation of the DESIGN. (9) The Arts Commission shall approve or disapprove the DESIGN within a reasonable time I Revised 3120192 EXHIBIT 3 after its submission. If the DESIGN is disapproved, the ARTIST may submit a second DESIGN to the Arts Commission within 30 days. The Arts Commission shall notify the ARTIST within a reasonable time whether it approves or disapproves the second DESIGN. If the Arts Commission disapproves the second DESIGN, the contract shall terminate with payment made to the ARTIST as shown in EXHIBIT “B” and all DESIGN materials shall be returned to the ARTIST. In that event, neither party shall have further obligation to the other, with the exception of the ARTIST’s obligations under the hold harmless and indemnity provisions of this agreement. VO The ARTIST shall furnish all labor, supplies, materials and equipment necessary for the preparation of the DESIGN and execution of the ARTWORK. (0 After approval of the DESIGN pursuant to Section 1 (g), the ARTIST shall furnish to the Arts Manager a tentative schedule for completion of fabrication and installation of the ARTWORK. After written approval of the schedule by the Arts Office Manager, the ARTIST shall fabricate, transport and install the ARTWORK in accordance with such schedule. Such schedule may be amended by written agreement between the Arts Manager and the ARTIST. If the CITY determines that working drawings are necessary for the installation of the ARTWORK, the ARTIST shall submit the DESIGN to the Parks Development Coordinator for the preparation of such drawings. In addition, the ARTIST shall meet with the Parks Development Coordinator as necessary to ensure the working drawings correctly depict the DESIGN and meet the acceptance standards of the CITY. The Arts Manager and the Parks Development Coordinator has the right to review the ARTWORK at reasonable times during the fabrication thereof. 0) The ARTIST shall complete the fabrication and installation of the ARTWORK in substantial conformity with the DESIGN. If it is discovered, after approval of the DESIGN, that revisions to the DESIGN are necessary for the ARTWORK to comply with any law, standard or regulation, the ARTIST shall make such revisions as are necessary. If the revisions required substantially change the approved DESIGN, the Arts Commission may approve the revisions or recommend termination of the contract pursuant to the termination clause in Section 4. Minor changes may be approved by the Arts Manager. (k) The ARTIST may be required to meet with representatives of public entities with jurisdiction over the ARTWORK or the SITE to address any concerns voiced by those entities. (1) The ARTIST shall deliver and install the completed ARTWORK at the SITE in compliance with the schedule approved pursuant to Section 1 (I). The ARTIST shall notify the Arts Manager in writing beforehand when fabrication of ARTWORK is completed and ready for delivery and installation. The ARTIST shall immediately notify the Arts Office Manager of any problem associated with the installation of the ARTWORK, including but not limited to, nonconformity with the DESIGN, violations of law, safety problems, poor quality of materials or workmanship or conditions which would endanger the long term existence of the ARTWORK. The CITY shall be responsible for all expenses, labor and equipment to prepare the SITE for timely installation of the ARTWORK, including landscaping, footings, plumbing and lighting. F-0 Upon installation of the ARTWORK, the ARTIST shall provide to the Arts Manager written instructions for appropriate maintenance and preservation of the ARTWORK. 2 Revised 3120192 0-O The ARTIST shall be insured in the following manner, with the CITY named as an additional insured; The ARTIST shall be required to provide a certificate of insurance indicating a $250,000 liability coverage, showing the CITY as additional insured. Liability insurance shall cover the design and execution of this project. Insurance shall date from the first day of construction until one year after acceptance by the City Council. The ARTIST shall be required to provide proof of automobile liability coverage as required by the Risk Manager. (0) The ARTIST shall, at the option of the Arts Manager, meet with the general public or representatives of the media to discuss the design of the ARTWORK. The ARTIST shall not release any information to the public related to the services performed under this agreement without advance written permission of the Arts Manager. (P) The risk of loss or damage to the ARTWORK shall be borne by the ARTIST until final acceptance, and the ARTIST shall take such measures as are necessary to protect the ARTWORK from loss or damage until final acceptance; except that the risk of loss or damage shall be borne by the CITY prior to final acceptance during such periods of time as the partially or wholly completed ARTWORK is in the custody, control or supervision of the CITY or its agents for the purposes of transporting, storing, installing or performing any other ancillary services to the ARTWORK. 2. CITY’S OBLIGATIONS (4 The CITY shall make available to the ARTIST background information on the SITE, if requested by the ARTIST. (W The CITY shall may payment to the ARTIST as shown in Exhibit “B”. This represents payment in full. The total fee is $32,000 which includes sales tax if required and all travel and transportation expenses of the ARTIST. w A plaque identifying the ARTIST, the title of the ARTWORK, if any, and the year of the ARTWORK’s completion will be displayed in the immediate vicinity of the 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 event that there is a delay on the part of the CITY in performing its obligations under this agreement, or if conditions beyond the ARTIST’s control or act of God render timely performance of the ARTIST’s services impossible or unexpectedly burdensome. Failure to fulfil1 contractual obligations due to conditions beyond either party’s reasonable control will not be considered a breach of contract; provided that such obligations shall be suspended only for the duration of such conditions. 4. TERMINATION If either party to this agreement shall willfully or negligently fail to fulfil1 in a timely and proper manner, or otherwise violate, any of the covenants, agreements or stipulations materials to this agreement, the other party shall thereupon have the right to terminate this agreement by giving notice to the defaulting party of its intent to terminate specifying the grounds for termination. The defaulting party 3 Revised 3120192 shall have (30) days after receipt of the notice to cure the default. It if is not cured, then this agreement shall terminate. In the event of default by the CITY, the CITY shall compensate the ARTIST for all services performed by the ARTIST prior to termination according to the schedule shown in Exhibit “B”. In the event of default by the ARTIST, all finished and unfinished drawings, sketches, photographs, and other work products prepared and submitted or prepared for submission by the ARTIST under this agreement shall, at the CITY’s option become its property, provided that no right to fabricate or execute the ARTWORK shall pass to the CITY and the CITY shall compensate the ARTIST according to the schedule shown in Exhibit ‘B” for all services performed by the ARTIST prior to default. Notwithstanding the previous sentence, the ARTIST shall not be relieved of liability to the CITY for damages sustained by the CITY by virtue or any breach of this agreement by the ARTIST, and the CITY may reasonably withhold payments to the ARTIST until such time as the exact amount of such damages due the CITY from the ARTIST is determined. 5. OWNERSHIP OF MATERIAL SUBMITTED All materials submitted related to the ARTWORK or the DESIGN are the property of the CITY. 6. OWNERSHIP OF THE ARTWORK Title to the completed ARTWORK immediately vests in the CITY upon completion, along with all rights of ownership, possession and control. Prior to completion of the ARTWORK, CITY shall have the right, at its option, to claim ownership, possession and 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. 5101 et. seq.). The ARTIST grants to the CITY a paid-in-full irrevocable license to make reproduction of the ARTWORK for noncommercial purposes, including but not limited to, reproductions used in CITY business, advertising, brochures, posters, media publicity, catalogs, souvenirs, photographs, drawings, or publications of the CITY, providing however, the CITY may not make a full scale exact duplicate of the ARTWORK. The CITY shall include the ARTIST’s copyright notice on any reproductions and the ARTIST shall include the following words on any reproduction: “An original work commissioned by the City of Carlsbad, California.” 6. REGISTRATION OF COPYRIGHT The responsibility for registration of the copyright shall be the responsibility of the copyright holder under this agreement. 9. WARRANTIES 1. Warranty of Title The ARTIST represents and warrants that: (4 The ARTWORK is solely the result of the artistic effort of the ARTIST. @I The ARTWORK is unique and original and does not infringe upon any copyright. b-3 The ARTWORK or a duplicate of the ARTWORK has not been sold elsewhere. (d) The ARTIST shall not make any exact duplicate reproduction of the ARTWORK nor shall the ARTIST grant permission to others to do so, except with the written permission of the CITY. 4 Revised 3/20/92 2. Warranty of Quality and Condition THE ARTIST represents and warrants that: (4 The execution and fabrication of the ARTWORK will be performed in a workmanlike manner. (b) The ARTWORK, as fabricated and installed, will be free of defects in materials and workmanship, including any defects consisting of “inherent vice” or qualities which cause or accelerate deterioration of the ARTWORK. 03 Reasonable maintenance of the ARTWORK will not require procedures in excess of those described in the maintenance recommendations to be submitted by the ARTIST to the CITY hereunder. The warranty of quality and condition shall survive for a period of one year after the final acceptance of the ARTWORK. The CITY shall give notice to the ARTIST of any observed breach with reasonable promptness. The ARTIST, shall at the request of the CITY, and at no cost to the CITY, cure reasonable, and promptly the breach of any such warranty which is curable by the ARTIST and which cure is consistent with professional conservation standards (including, for example, cure by means of repair or refabrication of the ARTWORK). 10. REPAIRS The CITY shall have the right to determine when and if repairs and restorations to the ARTWORK shall be made. 11. WAIVER The artist recognizes that he or she may have certain rights arising from the “California Art Preservation Act” (Civil Code 5987 et seq.) or the “Visual Artists’ Rights Act of 1990” (17 U.S.C.§lOl et seq.). Those Acts require that a waiver of their provisions be expressly made in writing and being fully informed, the artist and his or her agents, heirs, successors and assigns hereby waive any and all rights he or she may have under the provisions of the “California Art Preservation Act” (Civil Code 5987 et seq.) or the “Visual Artists’ Rights Act of 1990” (17 U.S.C. $101 et seq.). The artist, his or her agents, heirs, successors and assigns further agree not to attempt to defeat this waiver by cooperating, encouraging or assisting any organization which seeks to bring an action under these Acts. 12. STATUS OF THE ARTIST The ARTIST shall perform the services provided for herein in ARTIST’s own way as an independent contractor and in pursuit of ARTIST’s independent calling, and not as an employee of the CITY. ARTIST shall be under control of the CITY only as to the result to be accomplished, but shall consult with the CITY as provided for in this agreement. 13. WITHHOLDINGS The CITY shall not make any federal or state tax withholdings on behalf of the ARTIST. The CITY shall not be required to pay workers’ compensation insurance on behalf of the ARTIST. The ARTIST agrees to indemnify the CITY for any tax, retirement contribution, social security, overtime payment, or workers’ compensation payment which the CITY may be required to make on behalf of the ARTIST or any employee of the ARTIST for work done under this agreement. Revised 3120192 14. IMMIGRATION ACT The ARTIST shall be aware of the requirements of the Immigration Reform and Control Act of 1986 and shall comply with those requirements, including but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that are included in this agreement. 15. NONDISCRIMINATION CLAUSE The ARTIST shall comply with the state and federal laws regarding nondiscrimination. 16. COVENANTS AGAINST CONTINGENT FEES The ARTIST warrants that he has not employed or retained any company or person, other than a bona fide employee working for the ARTIST, to solicit or secure this agreement, and that ARTIST has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this agreement. For breach or violation of this warranty, the CITY shall have the right to annul 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, commission, percentage, brokerage fee, gift, or contingent fee. 17. HOLD HARMLESS AGREEMENT The CITY, its officers, and employees shall not be liable for any claims, liabilities, penalties, fines, for any damage to goods, properties, or effects of any person whatsoever, nor for personal injuries or death caused by, or resulting from, any intentional or negligent acts, errors or omissions of ARTIST or ARTIST’s agents, employees, or representatives. ARTIST agrees to defend, indemnify, and save free and harmless the CITY and its officers and employees against any of the foregoing liabilities or claims of any kinds, and any cost and expense including attorney’s fees incurred by the CITY on account of any of the foregoing liabilities, including liabilities or claims by reason of alleged defects in the DESIGN. 18. ASSIGNMENT OF CONTRACT The ARTIST shall not assign this contract or any part therefor or any monies due thereunder without the prior written consent of the CITY. 19. SUBCONTRACTING If the ARTIST subcontracts any of the work to be performed under this agreement, ARTIST shall be fully responsible to the CITY for the acts and omissions of ARTIST’s subcontractor and of the persons either directly or indirectly employed by the subcontractor, as ARTIST is for the acts and omissions of persons directly employed by ARTIST. Nothing contained in this agreement shall create any contractual relationship between any subcontractor of ARTIST and the CITY. The ARTIST shall bind every subcontractor and every subcontractor of a subcontractor by the terms of this agreement applicable to ARTIST’s work unless specifically noted to the contrary in the subcontract in question and approved in writing by the CITY. Revised 3120192 20. PROHIBITED INTEREST No official of the CITY who is authorized in such capacity on behalf of the CITY to negotiate, make, accept, or approve, or take part in negotiating, making, accepting, or approving of this agreement, shall become directly or indirectly interested personally in this contract or in any part thereof. No officer or employee of the CITY who is authorized in such capacity and on behalf of the CITY to exercise any executive, supervisory, or similar functions in connection with the performance of this contract shall become directly or indirectly interested personally in this contract or any part thereof. 21. VERBAL AGREEMEN? OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of the CITY, either before, during or after the execution of this contract, shall affect or modify any of the terms or obligations herein contained nor entitle the ARTIST to any additional payment whatsoever under the terms of this contract. 22. CONFLICT OF INTEREST The ARTIST 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 ARTIST shall report investment of interests in real property. Acknowledged and Accepted: ARTIST: PO- c(oc3s~~’ (print name of Artist) By. . . L.J>;’ ’ ;;f (sign here il ti / City Clerk . 3-/o- 00 (Date) Attachments: Exhibit A Exhibit B Proper notarial acknowledgement of execution by ARTIST must be attached. Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. 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: RONALD R. BALL City Attorney By &I%%?& /l. umw Deputy City Attorney Revised 3120192 - CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT On 25l\\4~7 before me, ’ Date personally appeared w Name, title’- e.g., Joti Doe, Notary Public w Name(s) of Signers(s) Cl Personally known to me Q& >&;5 Proved to me on the basis of satisfactory evidence to be the person(p) whose name(f) is/q subscribed to the within instrument and acknowledged to me that he/slpe/tMy executed the same in his/h@ty ir authorized capacity(i@), and that by his/ ~r/t.h$r signature?) on the instrument the person($ or the entity upon behalf of which the person&) acted, executed the instrument. Witness my hand and offkial seal. OPTIONAL The data below is not required by law, however it may prove valuable to persons relying on the document and couli-lpreventj?audulent reattachment of this form. SIGNATURE AUTHORITY OF SIGNER: &I INDIVIDUAL CI CORPORATE OFFICER(S) ‘Title(s) Cl PARTNER Q LIMITED Ll GENERAL Cl A~ORNEY-IN-FACT ; Ll TRUSTEE(S) Cl GUARDIAN/CONSERVATOR 0 &HER: NAME(S) OF PERSON(S) OR Em(m) !hNER IS REPRL~‘~ING: DESCRIPTION OF ATTACHED DOCUMENT k&Mw$vbti+c~ TITLE OR TYPE OF DOCUMENT w 7 NIJMBER OF PAGES 1 DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE: r’ 6 - 1. Upon acceptance of DESIGN or rejection of second DESIGN 2. Upon 25% completion of fabrication 3. Upon 75% completion of fabrication 4. Upon acceptance, delivery and installation of completed artwork Total $32,000 EXHIBIT B Payment Schedule $8,000 $8,000 $8,000 $8,000 8 Revised 3120192 EXHIBIT "A" G N Main &&ndq’ ml, :_ :‘, ~‘: ’ ; H N Main Social Evexit%jkr&a~. :I’ -. 1 ,. 1: . . I N Living History Area;- II ,, J N Deedie’s House- ‘, :’ T K N Main Courtyard 1 ‘z..,:* ‘-’ L -Landscape Buffer I, .,: -;‘, : 1:. M wInformal Picnic,Area N N City Wide Trail System, ” 0 N Community Trail: Sjrstem* t.. P N Conquistador Cross ~, ‘- Q N Old Bridge R N Orchard S,N Botanical Garden T N New Caretaker’s Residence I’ _ I -1 -. ,. ,, . . ; 7. ,.. ._ ‘ .“. ,- . .; -VI m;‘# 4.3qeo :’ :,. ’ , 6’ PROPOSED’ ASTER PLAN’ I% CR**!%) RA ,t_ U - Wood Barn Theater V N Small Amphitheater W N Riparian Area GU - @ --< VC4 City of. Carlsbad Fi&.we 4-l dity March 13,200O Paul Hobson 2861 Ivy Street San Diego, CA 92104 Re: Design and Installation of a Public Art Piece at Carrillo Ranch Dear Mr. Hobson: At their meeting of March 7,2000, the Carlsbad City Council adopted Resolution No, 2000-72 approving an agreement with you for design and installation of a public art piece at Carrillo Rancho. Enclosed is a copy of Resolution No. 2000-72 and the agreement for your records. Sincerely, Deputy City Clerk Enclosures a) c : .I I I -_. 1200 Carlsbad Village Drive - Carlsbad, CA 92008-l 989 l (760) 434-2808 BP