HomeMy WebLinkAboutMartin, Gary; 2002-04-19;AGREEMENT FOR DESIGN AND EXECUTION OF PUBLIC ARTWORK
This agreement is entered into on the 19th day of APRIL , 2002, by the City of
Carlsbad, a municipal corporation, hereinafter referred to as “CITY” and Gary Martin,
hereinafter referred to as the “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 in the Public Works Center, located on Orion
Way; and
CITY, to create the ARTWORK and funds have been allocated for that purpose;
WHEREAS, the ARTIST has been selected, pursuant to procedures adopted by the
NOW, THEREFORE, the CITY and the ARTIST, for the consideration and under the
conditions hereinafter set forth, agree as follows:
1. ARTIST’S OBLIGATIONS
and install the ARTWORK.
(a) The ARTIST shall, to the best of his artistic ability, design, fabricate, construct
SITE, the surrounding community, the amount of money allocated for the ARTWORK by the
(b) The ARTIST shall create ARTWORK taking into consideration the nature of the
CITY (a total of $50,000, to include both design, execution and installation of the ARTWORK
as shown in Exhibit “A), and the amount of maintenance required.
the public, including, but not limited to, the safety of persons traveling on public rights of way.
(c) The ARTIST shall create the ARTWORK taking into consideration the safety of
(d) The ARTIST shall create the ARTWORK in a manner which conforms to
other applicable laws, regulations and standards, including but not limited to, federal, state, and
regulations of all public agencies with jurisdiction over the SITE or the ARTWORK and to all
local.
implementation of the ARTWORK complies with all provisions of this agreement.
(e) The ARTIST shall meet regularly with CITY staff to ensure the design and
as “DESIGN” in a tangible form. The CITY shall approve or disapprove the DESIGN. If the
(9 The ARTIST shall submit to the CITY a design concept, hereinafter referred to
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
The CITY shall notify the ARTIST within a reasonable time whether it approves or disapproves
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 3/20/921Revired 7/9/98
(g) 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.
during the fabrication thereof.
The Arts Manager shall have the right to review the ARTWORK at reasonable times
substantial conformity with the DESIGN.
(i) 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
agreement without advance written permission of the Arts Manager.
shall not release any information to the public related to the services performed under this
(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
or wholly completed ARTWORK is in the custody, control or supervision of the CITY or its
Revised 3/20/92/Revired 7/9/98
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;
under this agreement, the ARTIST must provide a certificate of insurance indicating $1 million
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
agreement until one year after final acceptance of the ARTWORK by the City Council. The
phases of the project and shall be effective from the first day work is commenced under this
insurance must be obtained from a carrier that is admitted and authorized to do business in
California and that has a current Best's Key Rating of not less that "A-:V." The insurance
coverage must be single-limit occurrence coverage and may not be cancelled without thirty (30)
days written notice to the CITY sent by certified mail.
The ARTIST shall be required to provide proof of automobile liability coverage
as required by the Risk Manager.
2. CITY'S OBLIGATIONS
(a) The CITY shall make available to the ARTIST, background information on the
SITE, if requested by the ARTIST.
represents payment in full. The total fee is $50,000 which includes sales tax if required, and all
(b) The CITY shall make payment to the ARTIST as shown in Exhibit "A. This
travel and transportation expenses of the ARTIST.
(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
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
ARTIST'S services impossible or unexpectedly burdensome. Failure to fulfill contractual
conditions beyond the ARTIST'S control or act of God render timely performance of the
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
If either party to this agreement shall willfully or negligently fail to fulfill 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 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 "A. In the event of default by the
ARTIST, all finished and unfinished drawings, sketches, photographs, and other work products
at the CITY'S option become its property, provided that no right to fabricate or execute the prepared and submitted or prepared for submission by the ARTIST under this agreement shall,
Revised 3/20/9URevired 7/9/98
ARTWORK shall pass to the CITY and the CITY shall compensate the ARTIST according to the
schedule shown in Exhibit “A’ 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
the CITY.
materials submitted related to the ARTWORK or the DESIGN are the property of
6. OWNERSHIP OF THE ARTWORK
Title to the completed ARTWORK immediately vests in the CITY upon completion,
ARTWORK, CITY shall have the right, at its option, to claim ownership, possession and control
along with all rights of ownership, possession and control. Prior to completion of the
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 I976 (I 7 U.S.C. 5 IO I et. seq.).
ARTWORK for noncommercial purposes, including but not limited to, reproductions used in
The ARTIST grants to the CITY a paid in full irrevocable license to make reproduction of the
CITY business, advertising, brochures, posters, media publicity, catalogs, souvenirs, photographs,
drawings, or publications of or about the CITY, providing 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.”
a. REGISTRATION OF COPYRIGHT
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
materials and workmanship, including any defects consisting of “inherent vice”
or qualities which cause or accelerate deterioration of the ARTWORK.
Revised 3/20/9URevised 7/9/98
3.
excess of those described in the maintenance recommendations to be submitted by the ARTIST
Reasonable maintenance of the ARTWORK will not require procedures in
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
ARTWORK shall be made.
I 1. WAIVER
The CITY will have the right to determine when and if repairs and restorations to the
The ARTIST recognizes that he or she may have certain rights arising from the
"California Art Preservation Act" (Civil Code $987 et seq.) or the "Visual Artists' Rights Act of
1990 (17 U.S.C.5106A 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 $987 et seq.) or the "Visual Artists' Rights
Act of 1990 (17 U.S.C. $106A 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 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
Act of I986 and shall comply with those requirements, including but not limited to, verifying the
The ARTIST shall be aware of the requirements of the Immigration Reform and Control
eligibility for employment of all agents, employees, subcontractors and consultants that are
included in this agreement.
Revised 3/20/92/Revised 7/9/98
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
violation of this warranty, the CITY shall have the right to annul this agreement without liability, contingent upon, or resulting from, the award or making of this agreement. For breach or
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,
for personal injuries or death caused by, or resulting from, any intentional or negligent acts,
penalties, fines, for any damage to goods, properties, or effects of any person whatsoever, nor
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
thereunder without the prior written consent of the CITY.
19. SUBCONTRACTING
The ARTIST shall not assign this contract or any part therefore or any monies due
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
ARTIST is for the acts and omissions of persons directly employed by ARTIST. Nothing
subcontractor and of the persons either directly or indirectly employed by the subcontractor, as
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
with the performance of this contract shall become directly or indirectly interested personally in
behalf of the CITY to exercise any executive, supervisory, or similar functions in connection
this contract or any part thereof.
Revised 3/20/9URevired 7/9/98
2 1. VERBAL AGREEMENT OR CONVERSATION
either before, during or after the execution of this contract, shall affect or modify any of the
No verbal agreement or conversation with any officer, agent, or employee of the CIN,
terms or obligations herein contained nor entitle the ARTIST to any additional payment
whatsoever under the terms of this contract.
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 - (print name of ARTIST)
ATTEST
KAREN R. KUNDTZ, Assista.nt City Clerk
APPROVAL AS TO FORM
& Malzn-L
Deputy City Attorney
Attachment@):
Exhibit A
Revised 3/20/9URevired 7/9/98
EXHIBIT A
AGREEMENT BETWEEN CITY OF CARLSBAD AND GARY MARTIN
Payment Schedule
1. Approval of design by City Council
2. Upon completion of 25% of construction
$10,000
$20,000
3. Upon completion of 75% of construction
5. Upon acceptance of completed arlwork
Total
$15,000
$5,000
$50,000
ACORD, CERTIFICATE OF LIABILITY INSURANCE oplD ss DATEIMMRO(II1
02/28/02
WWER Sahell h Eggert Insurance Agcy
James R. Eggert, Sec/Treas
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
7901 Raytheon Road
San Diego CA 92111-1606
Phone: 858-541-7177 Fax:858-541-7821
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
INSURERS AFFORDING COVERAGE
WSUFIW INSURER& The Hartford Insurance Group
INSURER0
INSURERC
INSURER D:
INJURER E:
Martin, Gary - Artist 323 Narclssul Ave. Corona Del- CA 92625
I
*+In the event of cancellation for non-payment, a 10 day notice applies*+
I CITYCAR
At-: Art Office
City of Carlsbad
1200 Carlsbad Village Dr. Carlsbad CA 92008
ACORD 254 (7/97) I
CALIFORNIA PROGF OF AUTO INSURANCE CARD ALLSTATE You're in good hands,
ALLSTATE INSURANCE CQYPANY 1819 ELECTRIC ROAD, SW. ROANOKE. VA 24018
""""""""""_...I_______________"""""""""""""""""""
NAIC : 19232
GARY MARTIN 323 NARCISSUS AVE CORONA DEL MAR CA 92625
Th's policy meets the requirements of the applicable California financia- responsibility law(s).
POLICY NUMBER 024913579
EFFECTIVE DATE 03/23/2002
EXPIRATiON DATE 09/23/2002
EAR MAKE MODEL 1995 5MB
VEHICLE ID NUMBER YS3DD558352012662
If you have an accident or loss: - Get medical attention if needed - Notify the Dollce imdlately - obtain names, addresses, phone numbers (wrk & hme) and llcense p:ate numbers of a1 1 oersons Involved 1 ncl udi no oassenoers and witnesses .
Darcy Price Nied
26361 Crwn Valley Suite 160 Mission Viejo CA 92691
(949) 348-1450
- If YOU are unable to Contact Your agent or broker, Call the Allstate Claim Office nearest to your home (check the phone book). If you are out of town. contact the nearest Allstate office.
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CALIFORNIA DROOF OF AUTO INSURANCE CARD ALLSTATE You're 77 good hands.
ALLSTATE INSURANCE COMPANY 1819 ELECTRIC ROAD, SW. ROANOKE. VA 24018
"_""_""""""""""".._l_____""""-~""""""."""""""- NAIL : 19232
GARY MARTIN 323 ~ NNCISSUS AVE CORONA DEL MAFi CA 92625
Thls pollc meets the req8Jirenents of the applicable California finacclal responsibi Y. i'ty law(s.1.
POLICY NUMEER 024413679
03/23/2002 EFFECTIVE MTE
EXPIRATION DATE 09/23/2002
YEAR MAKE MODEL 2000 RX300
VEHICLE ID NUMBER JT6GFlOU5YG050359
If you have an accident or loss:
- 6et medical attention if needed. - Notify the police lmedlately. - Obtain names, addresses, phone nwnbers (work & home) and license plate
- Contact your AI state agent or broker as soon as possible. numers of all ersom involved including passengers and witnesses. !
Darcy Price Nied
Mission Viejo A 92691 26361 Crown Valle Suite 160 (949) 348-1450 f
- If you are unable to contact your agent or broker, call the Allstate Claim
town. contact the nearest Allstate offlce. Office nearest to your home (check the phone book). If you are out of
4823
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