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HomeMy WebLinkAboutPleasent Line Corportation; 2011-02-08;safety of the public, including, but not limited to, the safety of persons traveling on public rights of way. (e) The ARTIST shall fabricate and install 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. (f) The ARTIST shall meet regularly with CITY staff to ensure the fabrication and installation of the ARTWORK complies with all provisions of this Agreement. (g) The ARTIST shall furnish all supplies, materials and equipment necessary for fabrication and installation of the ARTWORK. (h) The Arts Manager will furnish ARTIST with a notice to proceed and within two weeks of receipt of the notice to proceed, 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 purchase materials, fabricate, transport and install the ARTWORK in accordance with such schedule. Such schedule may be amended for good cause 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. (i) The ARTIST shall complete the fabrication and installation of the ARTWORK in conformity with the approved design (hereinafter "DESIGN"). [The parties acknowledge that the approved design was the subject matter of a prior contract.] If it is discovered during the fabrication and/or installation period 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 and within a reasonable period of time. If the revisions required substantially change the approved DESIGN, the CITY may approve the revisions or recommend termination of this Agreement pursuant to the termination clause in Section 4. Minor changes to DESIGN may be approved by the Arts Manager. (j) 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 representatives. (k) The ARTIST or CONTRACTOR shall notify the Arts Manager in writing when fabrication of the ARTWORK is completed and is ready for the delivery and installation at the SITE. CONTRACTOR or ARTIST shall also notify the Arts Manager in writing regarding SITE preparation for the ARTWORK. SITE preparation requirements shall be identified and the schedule shall include a reasonable period of time for CITY to prepare the SITE for the ARTWORK. The CONTRACTOR or ARTIST shall deliver and install the completed ARTWORK at the SITE. The CITY shall be responsible for all expenses, labor and equipment to prepare the SITE as described in Exhibit "B" for the timely installation of the ARTWORK, including landscaping, footings, plumbing, and area and spot lighting of the ARTWORK. (1) Upon installation of the ARTWORK, the CONTRACTOR or ARTIST shall provide to the Arts Manager written instructions for appropriate maintenance and preservation of the ARTWORK. (m) 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. (n) The risk of loss or damage to the ARTWORK shall be borne by CONTRACTOR until final acceptance by CITY, and the CONTRACTOR or 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 sole custody, control or supervision of the CITY or its agents for the sole purposes of storing or performing any other ancillary services, which were agreed to in writing for the ARTWORK. CONTRACTOR is responsible for the ARTWORK while it is at the SITE awaiting or being installed and before final acceptance by CITY. (o) The CONTRACTOR 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 under this Agreement, CONTRACTOR must provide a certificate of insurance indicating $1 million general liability coverage, naming CITY as additional insured. The insurance shall cover all 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 CITY. The 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 CONTRACTOR shall be required to provide proof of automobile liability coverage as required by the CITY's Risk Manager. (p) All costs associated with this Agreement, including cost of insurance, shall be the responsibility of CONTRACTOR. (q) CONTRACTOR shall provide to CITY lien releases for all materials, transportation, and the like before final payment to CONTRACTOR shall be made. 2. CITY'S OBLIGATIONS (a) The CITY shall make available to the ARTIST, background information on the SITE, if requested in writing by the CONTRACTOR or ARTIST. (b) Subject to Sections l(b) and l(q) above, the CITY shall make payments to the CONTRACTOR according to the Payment Schedule in Exhibit "C". The total not-to-exceed amount for this Agreement is $153,000 which includes all costs related to this Agreement, including without limitation materials, insurance, and sales tax if required, and all travel and ARTWORK transportation, storage, installing, and all other expenses of the CONTRACTOR and ARTIST. (c) 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. TERM AND EXTENSIONS This Agreement shall be effective on the date it is executed by the last party to sign the Agreement, and it shall be effective for two years or until installation and acceptance of the ARTWORK, whichever is sooner. Notwithstanding, on good cause this Agreement may be extended for one additional year with the consent of both Parties and by a written amendment to this Agreement. 4. TERMINATION and FORCE MAJEURE A. In the event of the CONTRACTOR or ARTST'S failure to deliver or perform the services required under this Agreement, CITY may terminate this Agreement for nonperformance by notifying CONTRACTOR by certified U.S. Mail or next day overnight mail of the termination. If CITY decides to modify the ARTWORK, abandon or indefinitely postpone the work or services contemplated by this Agreement, CITY may terminate this Agreement upon written notice to CONTRACTOR. Upon notification of termination, CONTRACTOR has five (5) business days to deliver all work in progress to CITY and, at the CITY'S option the work in progress will become the CITY'S sole property. CITY will make a determination of fact based upon the work product delivered to CITY and of the percentage of work that CONTRACTOR 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. B. Force Majeure. Any delay in the performance of any the duties or obligations of either Party under this Agreement caused by an event outside the affected Parties' reasonable control shall not be considered a breach of this Agreement, and the time required for performance shall be extended for a period equal to the period of such delay. CONTRACTOR shall not be entitled to damages or additional payment due to such delays. Such events shall include, without limitation: war, government regulation instituted or revised after the date of this Agreement, labor disputes (including without limitation strikes, lockouts, job actions or boycotts), fires, floods, earth quakes, adverse weather necessitating succession of work or similar actions of the elements, civil unrest, or such other unforeseeable causes beyond the reasonable control and without the fault or negligence of the Party so affected. The Party so affected shall give prompt notice to the other Party of such cause and shall take whatever reasonable steps are necessary to relieve the affects of such cause as rapidly as possible. In the event that the Forced Majeure delay extends longer than the CITY or CONTRACTOR desires and such delay makes it difficult for either Party to perform, either Party may contact the other Party to meet and confer as to whether the Agreement should be terminated due to the extended delay or continue to be held in abeyance during the period of delay. If the Agreement is terminated, CITY will make the final determination as to the portions of the tasks completed and the compensation to be paid. C. This Agreement may be terminated pursuant to Section 1 (i) above. 5. OWNERSHIP OF MATERIAL SUBMITTED All materials submitted related to the approved ARTWORK, the approved DESIGN, or both the approved ARTWORK and DESIGN are the sole property of the CITY. 6. OWNERSHIP OF THE ARTWORK Title to the completed ARTWORK immediately vests in the CITY upon acceptance of the ARTWORK by the City, including all rights of ownership, possession and control. After completion and prior to acceptance of the ARTWORK, CITY shall have the right, at its option, to claim ownership, possession and control of that portion of the ARTWORK which is installed at the SITE. 7. REPRODUCTION RIGHTS Subject to the rights granted herein, CONTRACTOR retains all rights under the Copyright Act of 1976 (17 U.S.C. §101 et. seq.), as amended from time to time. The CONTRACTOR hereby grants the CITY, royalty free and irrevocable license to make, or cause to be made, photographs and other two-dimensional reproductions of the ARTWORK or the ARTWORK DESIGN for educational, public relations, tourism and arts promotional purposes. For the purpose of this Agreement, the following are among those deemed to be permissible reproductions for the above cited purposes: brochures and pamphlets pertaining to the CITY; reproductions in exhibition catalogues, books, slides, photographs, postcards, posters, calendars, art magazines, art books and art and news sections of newspapers; in general books and magazines not primarily devoted to art; slides and film strips; video; computer websites; and television; as well as in media that shall exist in the future. The CITY shall include the CONTRACTOR'S copyright notice on any reproductions and the CONTRACTOR shall include the following words on any reproduction: "An original work commissioned by the City of Carlsbad, California." 8. 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 CONTRACTOR 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, trademark, service mark or other intellectual property right of any third party. II (c) The ARTWORK or a duplicate of the ARTWORK has not been sold elsewhere. 2. Warranty of Quality and Condition CONTRACTOR represents and warrants that: (a) The fabrication of the ARTWORK will be performed in a workman- like 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. 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. 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 CONTRACTOR of any observed breach with reasonable promptness. The CONTRACTOR shall at the request of the CITY and at no cost to the CITY, cure reasonably and promptly the breach of any such warranty which is curable by the CONTRACTOR and which cure is consistent with professional conservation standards (including, for example, cure by means of repair or re-fabrication of the ARTWORK). 10. REPAIRS The CITY will have the right to determine whether repairs and/or restorations to the ARTWORK are required to be made, and if so, when the repairs and/or restorations shall be made. 11. WAIVER OF CONTRACTOR AND ARTIST'S RIGHTS CONTRACTOR on its own behalf and on behalf of ARTIST and CITY acknowledge that CONTRACTOR and ARTIST may have certain rights under the Federal Visual Artists Rights Act of 1990 ("VARA" 17 U.S.C. § 106A, et seq.). CONTRACTOR and ARTIST acknowledge and understand that the installation of the ARTWORK at the SITE may subject the ARTWORK to destruction, distortion, mutilation, or other modification due to its removal by the CITY or its officials, officers, employees, agents, or representatives. CONTRACTOR on its own behalf and on behalf of ARTIST and CITY acknowledges that CONTRACTOR and ARTIST may have certain rights under California Civil Code Section 987 which are not pre-empted by VARA. In consideration of the terms and conditions in this Agreement, CONTRACTOR on its own behalf and on behalf of ARTIST waives any rights which the CONTRACTOR, ARTIST or the ARTIST'S heirs, beneficiaries, devisees, or personal representatives may have under California Civil Code Section 987 to prevent the removal, destruction, distortion, mutilation, or other modification of the ARTWORK. Any contracts or written agreements between CONTRACTOR and ARTIST and his/her/its subcontractors or other artists contributing to this ARTWORK shall include a waiver of the CONTRACTOR and ARTIST's rights under this Agreement. CONTRACTOR on its own behalf and on behalf of ARTIST agrees to waive the right to prevent the destruction, distortion, mutilation, or other modification of the ARTWORK. CONTRACTOR and ARTIST'S rights under this Agreement shall cease with the ARTIST'S deaths and do not extend to the ARTIST'S heirs, successors or assigns. In addition, in the event that any element of the Artwork constitutes a public safety hazard, the City has the right to remove only the element posing the public safety hazard. CONTRACTOR on its own behalf and on behalf of ARTIST, its, 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. SALE OR DONATION OF THE ARTWORK BY THE CITY The CITY shall have the right to donate or sell the ARTWORK at any time after acceptance of the ARTWORK. Before exercising this right, the CITY, by written notice to the CONTRACTOR at CONTRACTOR'S last known address, agrees to give the CONTRACTOR the opportunity to purchase the ARTWORK for the greater of the market value as determined by a qualified appraiser or the amount of any offer that the CITY has received for the purchase of the ARTWORK, plus all costs associated with the removal of the ARTWORK from the SITE, clean- up of the SITE and delivery to the CONTRACTOR. CONTRACTOR shall have thirty (30) days from the date of the CITY'S notice to exercise the option to purchase the ARTWORK. If CONTRACTOR exercises this option and then rescinds the option to purchase, CONTRACTOR shall be liable for all losses the CITY sustained as a result of the rescission to purchase the ARTWORK. 13. STATUS OF THE CONTRACTOR CONTRACTOR shall perform the services provided for herein in CONTRACTOR'S own way as an independent contractor and in pursuit of CONTRACTOR'S independent calling, and not as an employee of the CITY. CONTRACTOR and 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. 14. WITHHOLDINGS The CITY shall not make any federal or state tax withholdings on behalf of the CONTRACTOR. The CITY shall not be required to pay workers' compensation insurance on behalf of the CONTRACTOR. CONTRACTOR 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 CONTRACTOR or any employee of the CONTRACTOR for work done under this Agreement. 15. IMMIGRATION ACT CONTRACTOR 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. 16. NONDISCRIMINATION CLAUSE CONTRACTOR shall comply with the state and federal laws regarding nondiscrimination. 17. COVENANTS AGAINST CONTINGENT FEES CONTRACTOR warrants that it has not employed or retained any company or person, other than a bona fide employee working for CONTRACTOR, to solicit or secure this Agreement, and that CONTRACTOR 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. 18. 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 CONTRACTOR or CONTRACTOR'S agents, employees, or representatives. CONTRACTOR 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. 18.1 Indemnification for Infringement. CONTRACTOR also agrees to protect, defend, indemnify and hold the City harmless from any action, claim, suit or liability based on a claim that work performed under this Agreement by the CONTRACTOR or his/her agents constitutes an infringement of any patent, copyright, trademark, trade name or other proprietary right of any party. 19. ASSIGNMENT OF CONTRACT CONTRACTOR shall not assign this contract or any part therefore or any monies due thereunder without the prior written consent of the CITY. 20. SUBCONTRACTING If CONTRACTOR subcontracts any of the work to be performed under this Agreement, CONTRACTOR shall be fully responsible to the CITY for the acts and omissions of CONTRACTOR'S subcontractor and of the persons either directly or indirectly employed by the subcontractor, as CONTRACTOR is for the acts and omissions of persons directly employed by CONTRACTOR. Nothing contained in this Agreement shall create any contractual relationship between any subcontractor of CONTRACTOR and the CITY. The CONTRACTOR shall bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to CONTRACTOR and ARTIST'S work unless specifically noted to the contrary in the subcontract in question and approved in writing by the CITY. 21. 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. 22. VERBAL AGREEMENT 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 CONTRACTOR to any additional payment whatsoever under the terms of this contract. 23. EXHIBITS All exhibits referenced in this Agreement are attached hereto and incorporated herein by this reference. 24. CONFLICT OF INTEREST If requested by CITY, 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 investment of interests in real property. // (remainder of page intentionally left blank) II II II II II II II II II II II II II II II II II 25.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. Acknowledged and Accepted: CONTRACTOR: PLEASANT LINE CORPORATION CITY OF CARLSBAD, a municipal corporation of the State of California By: Mayor ATTEST: (e-mail address) LORRAINE M. WOOD, City Clerk (sign name) (e-mail address) 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. Chairman, President, or Vice-President **Group B Secretary, Assistant Secretary, 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. JFRTF: Public Art Concept Design ?>| - Exhibit "A" Medium: Silicon Bronze and Stainless Steel Strips Woven and Welded at crossings over a Stainless Steel Armature Height = Approx:7.5'~8' Weight = Approx. 2000 Ibs Tot Michael Stutz 2011 * cxp EXHIBIT "C" PAYMENT SCHEDULE Task 1- Fabrication: Not-to-Exceed $130,000 Procure materials, fabricate ARTWORK, store and protect ARTWORK in coordination with staff and contractors. 1. $60,000 will be paid upon the procurement of all materials satisfactory to the City's Arts Manager, 2. $30,000 upon 25% completion of the ARTWORK'S fabrication, in a manner acceptable to the City's Arts Manager, 3. $30,000 upon 75% completion of the ARTWORK's fabrication, in a manner acceptable to the City's Arts Manager, 4. $10,000 upon 100% completion of the ARTWORK's fabrication, in a manner acceptable to the City's Arts Manager. Task 2- Installation: Not-to-Exceed $23,000 Delivery and Installation of ARTWORK 5. $23,000 will be paid upon completion of installation of the ARTWORK, and the written acceptance of the ARTWORK by the CITY