Loading...
HomeMy WebLinkAboutHobson, Paul; 2002-11-13;AGREEMENT FOR DESIGN AND EXECUTION OF PUBLIC ARTWORK This agreement is entered into on the 1-5 day of I\lOfCWbe<, 2002, by the City of +I, Carlsbad, a municipal corporation, hereinafter referred to as “CITY” and Paul Hobson. hereinafter referred to as the “ARTIST”. RECITALS WHEREAS, the CITY is implementing a public art program pursuant to Carlsbad and authorizing payment for the design, execution, and placement of such works of art; and Municipal Code Chapter 218 by allocating funds for the placement of artwork in public places WHEREAS, the CITY wants to purchase certain public ARTWORK, hereinafter referred to as the “ARTWORK,” to be installed in Alga Norte Park, located northwest of the future intersection of Poinsettia Lane and Alicante Street within the The Villages of La Costa master planned community; 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 (a) The ARTIST shall, to the best of his artistic ability, design, fabricate, construct and install the ARTWORK. (b) The ARTIST shall create ARTWORK taking into consideration the nature of the SITE, the surrounding community, the amount of money allocated for the ARTWORK by the CITY (a total of $70,000, to include both design, execution and installation of the ARTWORK as shown in Exhibit “A), and the amount of maintenance required. (c) The ARTIST shall create the ARTWORK taking into consideration the safety of the public, including, but not limited to, the safety of persons traveling on public rights of way. (d) The ARTIST shall create the ARTWORK in a manner which conforms to regulations of all public agencies with jurisdiction over the SITE or the ARTWORK and to all other applicable laws, regulations and standards, including but not limited to, federal, state, and local. (e) The ARTIST shall meet regularly with CITY staff to ensure the design and implementation of the ARTWORK complies with all provisions of this agreement. (9 The ARTIST shall submit to the CITY a design concept, hereinafter referred to as “DESIGN” in a tangible form. The CITY shall approve or disapprove the DESIGN. If the The CITY shall notify the ARTIST within a reasonable time whether it approves or disapproves DESIGN is disapproved, the ARTIST may submit a second DESIGN to the CITY within 30 days. the second DESIGN. If the CITY disapproves, the contract shall terminate with payment made to the ARTIST as shown in Exhibit “A’ 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. Revised 3/20/92/Revired 7/9/98 (9) The DESIGN shall specify materials, dimensions, finish, color, and any other information which is necessary. The DESIGN shall also include the maintenance requirements and installation method contemplated by the ARTIST and an estimate of its cost. The DESIGN shall include a model, to present a meaningful representation of the DESIGN. The model will be placed on display for public comment. (h) The ARTIST shall furnish all supplies, materials and equipment necessary for preparation of the DESIGN and execution of the ARTWORK. (i) After approval of the DESIGN pursuant to Section I(9, 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 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. The Arts Manager shall have the right to review the ARTWORK at reasonable times during the fabrication thereof. substantial conformity with the DESIGN. (j) The ARTIST shall complete the fabrication and installation of the ARTWORK in DESIGN are necessary for the ARTWORK to comply with any law, standard or regulation, the If it is discovered, after the approval of the DESIGN, that revisions to the ARTIST shall make such revisions as are necessary. If the revisions required substantially change the approved DESIGN, the CITY 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. with jurisdiction over the ARTWORK or the SITE to address any concerns voiced by those (k) The ARTIST may be required to meet with representatives of public entities entities. (I) The ARTIST shall notify the Arts Manager in writing when fabrication of the ARTWORK is completed and he is ready for its delivery and installation at the SITE. The ARTIST shall deliver and install the completed ARTWORK at the SITE the SITE for the timely installation of the ARTWORK, including landscaping, footings, plumbing, The CITY shall be responsible for all expenses, labor and equipment to prepare and area and spot lighting of the ARTWORK. (m) Upon installation of the ARTWORK, the ARTIST shall provide to the Arts Manager written instructions for appropriate maintenance and preservation of the ARTWORK. (n) 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. (0) 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 Revised 3/20/9URevised 7/9/98 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. (p) The ARTIST shall be insured in the following manner, with the CITY named as an additional insured Prior to commencing any work or receiving payment for any services performed general liability coverage, showing CITY as additional insured. The insurance shall cover all under this agreement, the ARTIST must provide a certificate of insurance indicating $1 million phases of the project and shall be effective from the first day work is commenced under this agreement until one year after final acceptance of the ARTWORK by the City Council. The insurance must be obtained from a carrier that is admitted and authorized to do business in coverage must be single-limit occurrence coverage and may not be cancelled without thirty (30) California and that has a current Best's Key Rating of not less that "A-:V." The insurance days written notice to the CITY sent by certified mail. as required by the Risk Manager. 2. CITY'S OBLIGATIONS The ARTIST shall be required to provide proof of automobile liability coverage SITE, if requested by the ARTIST. (a) The CITY shall make available to the ARTIST, background information on the (b) The CITY shall make payment to the ARTIST as shown in Exhibit "A. This trzvel and transportation exFenses of the ARTIST. represents payment in full. The total fee is $70,000 which includes sales tax if required, and all (c) A plaque identifying the ARTIST, the title of the ARTWORK, if any, and the year of the ARTWORKS completion will be displayed in the immediate vicinity of the installed ARTWORK at the expense of the CITY. 3. TIME EXTENSIONS there is a delay on the part of the CITY in performing its obligations under this agreement, or if The CITY will grant a reasonable extension of time to the ARTIST in the event that conditions beyond the ARTIST'S control or act of God render timely performance of the ARTIST'S services impossible or unexpectedly burdensome. Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control will not be considered a breach of contracc provided that such obligations shall be suspended only for the duration of such conditions. 4. TERMINATION In the event of the ARTST'S failure to deliver or perform the services required under this Agreement, CITY may terminate this Agreement for nonperformance by notifying ARTIST work or services contemplated by this Agreement, CITY may terminate this Agreement upon by certified mail of the termination. If CITY decides to abandon or indefinitely postpone the written notice to ARTIST. Upon notification of termination, ARTIST has five (5) business days to deliver all work in progress to CITY and, at the CINS option: the work in progress will become the CITY'S property. CITY will make a determination of fact based upon the work product delivered to CITY and of the percentage of work that ARTIST has performed which is usable and of worth to CITY in having the Agreement completed. Based upon that finding CITY will determine the final payment of the Agreement. Revised 3/20/92/Revired 7/9/98 Agreement by giving thirty (30) days written notice to the other. In this event and upon request In addition to termination for the above reason, either arty may terminate this of the CITY, ARTIST will assemble all work in progress and deliver it to the CITY. At the CITY’S option, the work in progress will become the CITY’S property. ARTIST will be paid for work performed prior to the termination date; however, the amount will not exceed the total fee payable under this Agreement. CITY will make the final determination as to the portions of the tasks completed and the compensation to be paid. 5. OWNERSHIP OF MATERIAL SUBMITTED All materials submitted related to the ARTWORK or the DESIGN is 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 grants to the CITY a paid in full irrevocable license to make reproduction of the The ARTIST retains all rights under the Copyright Act of I976 (I 7 U.S.C. 0 IO I et. seq.). ARTWORK for noncommercial purposes, including but not limited to, reproductions used in CITY business, advertising, brochures, posters, media publicity, catalogs, souvenirs, photographs, dnwitys, cr pub!icatio::z of or about the CITY, providirg however, the CITY may not re-license the ARTWORK nor make a full scale exact duplicate of the ARTWORK nor alter ARTWORK by selecting portions without ARTIST’S consent. 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.” 8. REGISTRATION OF COPYRIGHT a The responsibility for registration of the copyright shall be the responsibility of the copyright holder under this agreement. 9. WARRANTIES I. 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 any copyright. (c) The ARTWORK or a duplicate of the ARTWORK has not been sold elsewhere. 2. Warranty of Quality and Condition THE ARTIST represents and warrants that: (a) 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 or qualities which cause or accelerate deterioration of the ARTWORK. materials and workmanship, including any defects consisting of “inherent vice” Revised 3/20/9URevired 7/9/98 3. 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 along with the DESIGN. final acceptance of the ARTWORK. The CITY shall give notice to the ARTIST of any observed The warranty of quality and condition shall survive for a period of one year after the 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 re-fabrication of the ARTWORK). IO. REPAIRS The CITY will have the right to determine when and if repairs and restorations to the ARTWORK shall be made. I 1. WAIVER "California Art Preservation Act" (Civil Code $987 et seq.) or the "Visual Artists' Rights Act of The ARTIST recognizes that he or she may have certain rights arising from the expressly made in writing and being fully informed, the Artist and his or her agents, heirs, 1990' (17 U.S.C.$IO6A et seq.). Those Acts require that a waiver of their provisions be successors and assigns hereby waive any and all rights he or she may have under the provisions Act of 1990' (I 7 U.S.C. $I O6A et seq.). The Artist, his or her agents, heirs, successors and of the "California Art Preservation Act" (Civil Code $987 et seq.) or the "Visual Artists' Rights assigns further agree not to attempt to defeat this waiver by cooperating, encouraging or assisting any organizatio:! which seeks ro bring ar! actim tender these Acts." 12. STATUS OF THE ARTIST The ARTIST shall perform the services provided for herein in ARTIST'S own way as an of the CITY. ARTIST shall be under control of the CITY only as to the result to be independent contractor and in pursuit of ARTIST'S independent calling, and not as an employee accomplished, but shall consult with the CITY as provided for in this agreement. 13. WITHHOLDINGS The CITY shall not be required to pay workers' compensation insurance on behalf of the The CITY shall not make any federal or state tax withholdings on behalf of the ARTIST. 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. 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. Revised 3/20/92/Revired 7/9/98 15. NONDISCRIMINATION CLAUSE The ARTIST shall comply with the state and federal laws regarding nondiscrimination. 16. COVENANTS AGAINST CONTINGENT FEES other than a bona fide employee working for the ARTIST, to solicit or secure this agreement, The ARTIST warrants that he has not employed or retained any company or person, 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 fee. recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent 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, agrees to defend, indemnify, and save free and harmless the CITY and its officers and employees errors or omissions of ARTIST or ARTIST'S agents, employees, or representatives. ARTIST 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 iiabilities or claims by rexon oi alleged defeccs ir. tile DZS!GN. 18. ASSIGNMENT OF CONTRACT The ARTIST shall not assign this contract or any part therefore or any monies due thereunder without the prior written consent of the CITY. 19. SUBCONTRACTING ARTIST shall be fully responsible to the CITY for the acts and omissions of ARTIST'S If the ARTIST subcontracts any of the work to be performed under this agreement, 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. 20. PROHIBITED INTEREST No official of the CITY who is authorized in such capacity on behalf of the CITY to of this agreement, shall become directly or indirectly interested personally in this contract or in negotiate, make, accept, or approve, or take part in negotiating, making, accepting, or approving 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. Revised 3/20/9URevired 7/9/98 2 1. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer. agent, or employee of the CIN, either before, during or after the execution of this contract, shall affect or modify any of the whatsoever under the terms of this contract. terms or obligations herein contained nor entitle the ARTIST to any additional payment 22. CONFLICT OF INTEREST with the requirements of the City of Carlsbad Conflict of Interest Code. The ARTIST shall The ARTIST shall file a Conflict of Interest Statement with the City Clerk in accordance report investment of interests in real property. Acknowledged and Accepted ARTIST ClN OF CARLSBAD, a municipal corporation of the S @bL AOl? soid (print name of ARTIST) By: ATTEST (k~ty Clerk k, APPROVAL AS TO FORM: L.4 LiLd i c IL&d-(&/ L ,. Deputy City Attorney Attachment(s): Exhibit A Revised 3/20/92/Revired 7/9/98 EXHIBIT A AGREEMENT BETWEEN CITY OF CARLSBAD AND PAUL HOBSON Payment Schedule I. 2. 3. 4. 5. Upon completion of conceptual design Upon acceptance of the first design by the Arts Commission or second design acceptance or non-acceptance by the Arts Commission Upon 25% completion of implementation Upon 50% completion of implementation Upon completion and acceptance 'TOta! $ I0,OOO $ 20,000 $ I0,OOO $20,000 $ I0,OOO $70,000 Revised 3/20/9URevired 7/9/98