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HomeMy WebLinkAboutMcGraw, Deloss; 1991-02-05;0 fl3 E 19 0 AMENDMENT TO AGREEMENT BETWEEN THE CITY OF CARLSBAD AND DELOSS MCGRAW The Agreement made and entered into the 5th day 0: February, 1991, in the City of Carlsbad, by and between the City 0: Carlsbad approved by the City Council and executed by the Mayor an( Deloss McGraw, referred to as the artist is hereby amended by tht addition of Paragraph 22 to read as follows: IIWAIVER. The artist recognizes that he or she may have certain rights arising from the llCalifornia Art Preservation ActV1 (Civil Code 5987 et seq.) or the Visual Artists' Rights Act of 1990g1 (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 lfCalifornia Art Preservation Actt1 (Civil Code 5987 et seq.) or the Visual Artists' Rights Act of 1990g1 (17 U.S.C. §lo1 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. I: Except as expressly modified herein, all other terms an conditions of said contract remain in full force and effect. Gp-LJO-yL DAT~D Lib@ lJ T, 15792- 04R.Lq . t.?L APPROVED AS TO FORM RONALD R. BALL, ACTING CITY ATTORNEY __ February 8, 1991 DeLoss McGraw 715 Mango Court San Marcos, CA 92069 E: CONIIUCI FOR DESIGN AND EXECUTION OF ARTWORK IN THE LIBRARY The Carlsbad City Council at its meeting of February 5, 1991, adopted Resolution No. 9 48, approving a contract with you for artwork in the Carlsbad Library. Enclosed for your records is a fully executed original agreement as well as a copy Resolution No. 91-48. In accordance with Section 21 of the Agreement, you are required to file a Conflict Interest Statement with the City Clerk. Anyone in your company who will be working ( this City project must file a Form 730, Statement of Economic Interests. Enclosed for yo use in meeting the filing requirements is a Form 730, an Instruction Manual and a copy Amended Appendix 1. We will provide additional forms upon request. The Completed Assuming Office Statements are due in the City Clerk's Office no later th 5:OO p.m. on March 6, 1991. If you have any questions, or need additional forms, please call us at 434-2808. xz3hz Assistant City Clerk KK:lc Enc. ___ _____ ____--- _______ __ 1200 Carlsbad Village Drive - Carlsbad, Callfornla 92008 - (619) 434-28 0 0 AGREEMENT FOR DESIGN AND EXECUTION OF PUBLIC ARMIORK This agreement is entered into by the City of Carlsbad, a municipal corporatior hereinafter referred to as "CITY" and DELOSS MCGRAW, hereinafter referred to as th "ARTIST". R E C I TA LS WHEREAS, the CITY is implementing a public art program pursuant to Carlsbal Municipal Code Chapter 2:18 by allocating funds for the placement of artwork in publi places and authorizing payment for the design, execution, and placement of such work of art; and WHEREAS, the CITY wants to purchase certain public artwork, hereinafter referred to a the "ARTWORK', to be installed at the South Carlsbad Library, hereinafter referred to a the "SITE" (Exhibit "A'); and WHEREAS, the ARTIST has been selected, pursuant to procedures adopted by the ClTl to create the ARTWORK and funds have been allocated for that purpose; NOW, THEREFORE, the CITY and the ARTIST, for the consideration and under th conditions hereinafter set forth, agree as follows: 1. ARTIST'S OBLIGATIONS (a) The ARTIST shall, to the best of his artistic ability, design, fabricatc construct and install the ARTWORK. (b) The ARTIST shall create the ARTWORK taking into consideration the natur of the SITE, the surrounding community, the amount of money allocated for th ARTWORK by the CITY ( a total of $50,000, to include both DESIGN and execution of th ARTWORK as shown in Exhibit "Cll), and the amount of maintenance required. (c) The ARTIST shall create the ARTWORK taking into consideration the safet of the public, including, but not limited to, the safety of persons travelling on public right of way. (d) The ARTIST shall create the ARTWORK in a manner which conforms t regulations of all public agencies with jurisdiction over the SITE or the ARWORK and t all other applicable laws, regulations and standards, including but not limited to, federa state, and local. Revised Iff/$ 0 0 (e) The ARTIST shall meet regularly with CITY staff, including but not limited tc the Municipal Projects Manager, Project Manager and Arts Office Manager (Exhibit "B": to insure the design and implementation of the ARTWORK complies with all provision of this agreement. (9 Within 60 days after the execution of this agreement by the CITY, th ARTIST shall submit to the Carlsbad Arts Commission a design concept, hereinafte referred to as "DESIGN", in a tangible form. The Arts Commission shall within ( reasonable time, following the submission of the DESIGN, approve or disapprove thl DESIGN. If the DESIGN is disapproved, the ARTIST may submit a second DESIGN tc the Carlsbad Arts Commission within 60 days. The Arts Commission shall notify th ARTIST within a reasonable time whether it approves or disapproves the second DESIGh If the Arts Commission disapproves, the contract shall terminate with payment made tl the ARTIST as shown in EXHIBIT "C" and all DESIGN materials shall be returned to th ARTIST. In that event, neither party shall have further obligation to the other, with th exception of the ARTIST'S obligations under the hold harmless and indemnity provision of this agreement. (9) The DESIGN shall specify materials, dimensions, finish, color, and any othc information which is necessary for the preparation of working drawings. The DESIGI shall also include the maintenance requirements and installation method contemplate( by the ARTIST and an estimate of their cost. The DESIGN shall include a model, if model is necessary to present a meaningful representation of the design. This will b mutually agreed upon by the Arts Office Manager and the ARTIST in advance. (h) The ARTIST shall furnish all supplies, materials and equipment necessar for preparation of the DESIGN and execution of the ARTWORK. (i) After approval, the ARTIST shall submit the DESIGN to Cardwell/Thomas l Associates, hereinafter referred to as the "ARCHITECTS", for preparation of workinl drawings if the Municipal Projects Manager determines working drawings are necessaq The ARTIST shall meet with the ARCHITECTS as necessary to insure th: the working drawings correctly depict the DESIGN and meet the acceptance standard of the CITY as interpreted by the City Engineer. (j) (k) After approval of the DESIGN pursuant to Section 1 (9, the ARTIST shr furnish to the Arts Office Manager a tentative schedule for completion of fabrication an installation of the ARTWORK, including a schedule for the submission of progress report5 After written approval of the schedule by the Arts Office Manager, the ARTIST shr fabricate, transport and install the ARTWORK in accordance with such schedule. SUC schedule may be amended by written agreement between the Arts Office Manage Municipal Projects Manager and the ARTIST. Revised 1/71: 0 0 The Arts Office Manager and the Municipal Projects Manager shall have the rig/- to review the ARTWORK at reasonable times during the fabrication thereof. The ARTIS’ shall submit to the Arts Office Manager progress reports in accordance with the scheduli provided for in this Section. (I) ARTIST shall submit the location of his sculptures to the ARCHITECTS fc ARCHITECTS to include pedestals and other necessary information for installation c ARTWORK into the working drawings. (m) The ARTIST shall complete the fabrication and installation of the ARTWORI in substantial conformity with the DESIGN and the working drawings If it is discovered, after the approval of the DESIGN, that revisions to the DESlGl are necessary for the ARTWORK to comply with any law, standard or regulation, th ARTIST shall make such revisions as are necessary. If the revisions required substantiall change the approved DESIGN, the Arts Commission may approve the revisions c recommend termination of the contract pursuant to the termination clause in Section f Minor changes may be approved by the City Engineer. (n) The ARTIST shall meet with representatives of public entities with jurisdictio over the ARTWORK or the SITE to address any concerns voiced by those entities. (0) If applicable, the ARTIST shall notify the Municipal Projects Manager and th Arts Office Manager in writing when fabrication of the ARTWORK is completed and he i ready for its delivery and installation at the SITE. The ARTIST shall deliver or construct and install the completed ARTWORK at th SITE in compliance with the schedule approved pursuant to Section 1 (k). The ARTIS shall immediately notify the Engineering Department of any problem associated with th installation of the ARTWORK, including but not limited to, nonconformity with the DESIGF violations of law, safety problems, poor quality of materials or workmanship or condition which would endanger the long term existence of the ARTWORK. The CITY shall be responsible for all expenses, labor and equipment to prepar the SITE for the timely installation of the ARTWORK, including landscaping, footing$ plumbing, and area and spot lighting of the ARTWORK. (p) Upon installation of the ARTWORK, the ARTIST shall provide to the Art Off ice Manager written instructions for appropriate maintenance and preservation of th ARTWORK. The ARTIST shall be required to provide proof of automobile liabilil coverage as required by the Risk Manager. Revised 1/71! 0 0 (9) The ARTIST shall, at the option of the Arts Office Manager, meet with thi 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 service, performed under this agreement without advance written permission of the Arts Offici Manager. (r) 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 tc protect the ARTWORK from loss or damage until final acceptance; except that the risl of loss or damage shall be borne by the CITY prior to final acceptance during sucl 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. 2. CIN'S OBLIGATIONS (a) The CITY 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 "C". Th represents payment in full. The total fee is $50,000 which includes sales tax if require and all travel and transportation expenses of the ARTIST. (c) A plaque identifying the ARTIST, the title of the ARTWORK, if any, and th year of the ARTWORK'S completion will be displayed in the immediate vicinity of tt- installed ARTWORK at the expense of the CITY. (d) The CITY shall provide pedestals as specified by the ARTIST and agree to by the ARCHITECTS and the Municipal Projects Manager. 3. TIME EXTENSIONS The City will grant a reasonable extension of time to the ARTIST in the evei that there is a delay on the part of the CITY in performing its obligations under tf- agreement, or if conditions beyond the ARTIST'S control or acts of God render time performance of the ARTIST'S services impossible or unexpectedly burdensome. Failu to fulfill contractual obligations due to conditions beyond either party's reasonable contr will not be considered a breach of contract; provided that such obligations shall t 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 time and proper manner, or otherwise violate, any of the covenants, agreements or stipulatior Revised It7 0 e material to this agreement, the other party shall thereupon have the right to terminate thii agreement by giving written notice to the defaulting party of its intent to terminatc specifying the grounds for termination. The defaulting party shall have (30) days afte receipt of the notice to cure the default. If it is not cured, then this agreement sha terminate. In the event of default by the CITY, the CITY shall compensate the ARTIST fc all services performed by the ARTIST prior to termination according to the schedull shown in Exhibit IC''. In the event of default by the ARTIST, all finished and unfinishec drawings, sketches, photographs, and other work products prepared and submitted c prepared for submission by the ARTIST under this agreement shall at the CITY'S optioi become its property, provided that no right to fabricate or execute the ARTWORK sha pass to the CITY and the CITY shall compensate the ARTIST according to the schedul shown in Exhibit "C" for all services performed by the ARTIST prior to defaul Notwithstanding the previous sentence, the ARTIST shall not be relieved of liability to th CITY for damages sustained by the CITY by virtue of any breach of this agreement by th ARTIST, and the CITY may reasonably withhold payments to the ARTIST until such tim as the exact amount of such damages due the CITY from the ARTIST is determined. 5. OWNERSHIP OF MATERIAL SUBMITTED All materials submitted relating to the ARTWORK or the DESIGN are the propert of the CITY. 6. OWNERSHIP OF THE ARTWORK Title to the completed ARTWORK immediately vests in the CITY upon completior along with all rights of ownership, possession and control. Prior to completion of th ARTWORK, CITY shall have the right, at its option, to claim ownership, possession an control of the uncompleted portions of the ARTWORK which are on the SITE. 7. REPRODUCTION RIGHTS (a) The ARTIST retains all rights under the Copyright Act of 1976 (1 7 U.S.C. 10 et. seq.). The ARTIST grants to the CITY a fully-paid-up irrevocable license to mak reproductions of the ARTWORK for noncommercial purposes, including but not limite to, reproductions used in CITY business, advertising, brochures, posters, media publicit! catalogs, souvenirs, photographs, drawings, or publications of the CITY, providin however, the CITY may not make a full scale exact duplicate of the ARTWORK. The CIT shall include the ARTIST'S copyright notice on any reproductions and the ARTIST shE include the following words on any reproduction: "An original work commissioned by th City of Carlsbad, California." (b) The ARTIST may create a book using the ARTWORK and must give the Cil of Carlsbad credit by stating "The book is the result of a public art commission by th City of Carlsbad Arts Commission". Revised li7P 0 e 8. REGISTRATION OF COPYRIGHT The responsibility for registration of the copyright shall be the responsibility of thl copyright holder under this agreement. 9. WARRANTIES 1. Warranty of Title The ARTIST represents and warrants that: The ARTWORK is solely the result of the artistic effort of the ARTIST. The ARTWORK is unique and original and does not infringe upon an (a) (b) copyright . (c) The ARTWORK or a duplicate of the ARTWORK has not been sol elsewhere. (d) The ARTIST shall not make any exact duplicate reproduction of th ARTWORK nor shall the ARTIST grant permission to others to do so, except with th written permission of the CITY. The ARTIST has permission to make ten (IO) artist' proofs of the book to be retained by the ARTIST. 2. Warranty of Quality and Condition The ARTIST represents and warrants that: 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 materii and workmanship, including any defects consisting of "inherent vice" or qualities whic cause or accelerate deterioration of the ARTWORK. (c) Reasonable maintenance of the ARTWORK will not require procedure substantially in excess of those described in the maintenance recommendations to b submitted by the ARTIST to the CITY hereunder. The warranty of quality and condition shall survive for a period of one ye: after the final acceptance of the ARTWORK. The CITY shall give notice to the ARTIST ( any observed breach with reasonable promptness. The ARTIST shall, at the request ( the CITY, and at no cost to the CITY, cure reasonably and promptly the breach of ar Revised 1/71 0 a such warranty which is curable by the ARTIST and which cure is consistent wit1 professional conservation standards (including, for example, cure by means of repair o refabrication of the ARTWORK). 10. REPAIRS The CITY shall have the right to determine when and if repairs and restorations to thi ARTWORK will be made. 11. STATUS OF THE ARTIST The ARTIST shall perform the services provided for herein in ARTIST’S own wa as an independent contractor and in pursuit of ARTIST’S independent calling, and not a an employee of the CITY. ARTIST shall be under control of the CITY only as to the resu to be accomplished, but shall consult with the CITY as provided for in this agreement. 12. WITHHOLDINGS The CITY shall not make any federal or state tax withholdings on behalf of th ARTIST. The CITY shall not be required to pay workers’ compensation insurance o behalf of the ARTIST. The ARTIST agrees to indemnify the CITY for any tax, retiremer 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 th ARTIST for work done under this agreement. 13. IMMIGRATION ACT The ARTIST shall be aware of the requirements of the Immigration Reform an1 Control Act of 1986 and shall comply with those requirements, including, but not limitel to, verifying the eligibility for employment of all agents, employees, subcontractors an consultants that are included in this agreement. 14. NONDISCRIMINATION CLAUSE The ARTIST shall comply with the state and federal laws regardin nondiscrimination. 15. COVENANTS AGAINST CONTINGENT FEES The ARTIST warrants that they have not employed or retained any company c person, other than a bona fide employee working for the ARTIST, to solicit or 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, gif 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 ann1 Revised 1/71! e e EXHIBIT "C" Pavment Schedule A. Upon presentation of initial DESIGN $5,000.00 to the Arts Commission B. Upon approval of DESIGN or disapproval $5,000.00 of second DESIGN C. Upon beginning of construction $1 0,000.00 D. Upon completion of 25% of construction $5,000.00 E. Upon completion of 50% of construction $1 0,000.00 F. Upon completion of 75% of construction $5,000.00 G. Upon acceptance of completed ARTWORK $1 0,000.00 Revised 1/71 0 EXHl BIT "B" The ARTIST will work with the City of Carlsbad, Arts Office, who will be responsible fc administering this contract. 1. Connie Beardsley, Manager 61 9-434-292 Arts Office City of Carlsbad 1200 Elm Avenue Carlsbad, CA 92008 2. Jim Wilstermann, Public Art Administrator 61 9-434-292 Arts Office City of Carlsbad 1200 Elm Avenue Carlsbad, CA 92008 3. John Cahill, Manager 61 9-438-1 16 Municipal Projects City of Carlsbad 2075 Las Palmas Carlsbad, CA 92009 4. Ken Quon, Project Manager 61 9-438-1 16 Municipal Projects City of Carlsbad 2075 Las Palmas Carlsbad, CA 92009 5. Richard Cardwell 206-622-231 Cardwellflhomas & Associates 1221 Second Avenue, Suite 300 Seattle, WA 98101 Revised 1/71 0 0 this agreement without liability, or, in its discretion, to deduct from the agreement pricc or consideration, or otherwise recover, the full amount of such fee, commission percentage, brokerage fee, gift, or contingent fee. 16. 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 persor whatsoever, nor for personal injuries or death caused by, or resulting from, any intention2 or negligent acts, errors or omissions of ARTIST or ARTIST’s agents, employees, o representatives. ARTIST agrees to defend, indemnify, and save free and harmless thc CITY and its officers and employees against any of the foregoing liabilities or claims c any kind, and any cost and expense including attorney’s fees incurred by the CITY 01 account of any of the foregoing liabilities, including liabilities or claims by reason c alleged defects in the DESIGN. 17. ASSIGNMENT OF CONTRACT The ARTIST shall not assign this contract or any part thereof or any monies dui thereunder without the prior written consent of the CITY. 18. SUBCONTRACTING The ARTIST shall not subcontract any portion of this agreement without writtei permission from the CITY. If the ARTIST subcontracts any of the work to be performec under this agreement, ARTIST shall be fully responsible to the CITY for the acts an( 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 ARTlS 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. 19. PROHIBITED 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, c 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 direct1 or indirectly interested personally in this contract or any part thereof. Revised IPl! 0 0 20. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of thc CITY, either before, during or after the execution of this contract, shall affect or modif any of the terms or obligations herein contained nor entitle the ARTIST to any additionz payment whatsoever under the terms of this contract. 21. CONFLICT OF INTEREST The ARTIST shall file a Conflict of Interest Statement with the City Clerk ii accordance with the requirements of the City of Carlsbad Conflict of Interest Code. Thl ARTIST shall report investments or interests in real property. IN WITNESS WHEREOF, we have hereunto ATTEST: AS TO FORM: CGVty CId L) 0 .+/7/+/ KAREN R. KUNDTZ, Assistant City Clerk Attachments: Exhibit A Exhibit B Exhibit C Revised lP/C I LOCATION MAP LANE m r 0 > z z 0 XI m D r I \ \ \ \ \ \ \ \ \ \ .,,,- 1* .. \ DOVE SITE ', \ %--- --- * ALGA ROAD 4 I PROJECT NAME PROJECT + SOUTH CARLSBAD LIBRARY 3244 e 0 EXHIBIT "B" The ARTIST will work with the City of Carlsbad, Arts Office, who will be responsible fc administering this contract. 61 9-434-292 1. Connie Beardsley, Manager Arts Office City of Carlsbad 1200 Elm Avenue Carlsbad, CA 92008 Jim Wilstermann, Public Art Administrator 61 9-434-292 2. Arts Office City of Carlsbad 1200 Elm Avenue Carlsbad, CA 92008 61 9-438-1 1 E 3. John Cahill, Manager Municipal Projects City of Carlsbad 2075 Las Palmas Carlsbad, CA 92009 Ken Quon, Project Manager 61 9-438-1 1 E 4. Municipal Projects City of Carlsbad 2075 Las Palmas Carlsbad, CA 92009 206-622-231 5. Richard Cardwell Cardwellflhomas & Associates 1221 Second Avenue, Suite 300 Seattle, WA 98101 Revised 1/7, 0 0 EXHIBIT "C" Payment Schedule A. Upon presentation of initial DESIGN $5,000.00 to the Arts Commission B. Upon approval of DESIGN or disapproval $5,000.00 of second DESIGN C. Upon beginning of construction $1 0,000.00 D. Upon completion of 25% of construction $5,000.00 E. Upon completion of 50% of construction $1 0,000.00 F. Upon completion of 75% of construction $5,000 .OO G. Upon acceptance of completed ARTWORK $1 0,000.00 Revised 1/71