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HomeMy WebLinkAboutStoller Studio Inc; 2014-01-23;AGREEMENT FOR DESIGN OF PUBLIC ARTWORK Stoller Studio, Inc This agreement is entered into on the ^^^^ day of 3df\uar(A , 20 f^, by the City of Carlsbad, a municipal corporation, hereinafter referred to as CITY and Stoller Studio, Inc, an organization, hereinafter referred to as "ARTIST". RECITALS WHEREAS, Carlsbad Municipal Code section 2.18.110 authorizes the City to select artists and to commission the placement of works of art in public places; and WHEREAS, the CITY wants to commission ARTIST to design artwork ("ARTWORK") for Coastal Rail Trail Roundabout, located at the north entrance to Carlsbad within the area encompassed by the comer of Carlsbad Blvd. and State Street ("SITE") according to the payment schedule set forth in Exhibit "A", Payment Schedule, and WHEREAS, the ARTIST has been selected, pursuant to procedures adopted by the CITY, to design the ARTWORK and funds have been allocated for that purpose, and NOW, THEREFORE, CITY and 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 the ARTWORK in a manner that is consistent with the intent and purpose of this Agreement. The Design shall be complete and ready for fabrication by the ARTIST or a thu-d party selected by the CITY. (b) The ARTIST shall design ARTWORK, taking into consideration the nature of the SITE, the surrounding community, the amount of money allocated for the ARTWORK by the CITY (a not-to-exceed amount of $12,500 that includes the design and all ARTIST travel and taxes, regardless of form, payable according to Exhibit "A", Payment Schedule), and the desirability for low maintenance of said ARTWORK. (c) The ARTIST shall design 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 design 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 future implementation of the ARTWORK complies • with all provisions of this Agreement. (f) The ARTIST shall submit to the CITY a series of design concepts, in a tangible form, that will be reviewed by the CITY Roundabout (SITE) Team, the Carlsbad Arts Commission, and the public. After the completion of the review process, a final design concept ("CONCEPT DESIGN") will be presented to the City Council for its approval. If the City Council rejects ARTIST'S CONCEPT DESIGN, the ARTIST may submit a second design ("REPLACEMENT DESIGN") to the CITY within 90 days. The CITY shall notify the ARTIST within a reasonable time whether the City Council approves or rejects the REPLACEMENT DESIGN. Ifthe CITY rejects the REPLACEMENT DESIGN, this Agreement shall terminate with payment made to the ARTIST as shown in Exhibit "A" and all materials of the CONCEPT DESIGN and REPLACEMENT DESIGN shall be retumed to the ARTIST, hi that event, neither party shall have further obligation to the other; with the exception ofthe ARTIST'S obligations under the hold harmless and indemnity provisions ofthis Agreement. (g) The CONCEPT DESIGN or REPLACEMENT DESIGN (collectively "DESIGN") shall specify materials, dimensions, fmish, color, and any other relevant information. The DESIGN shall also include the maintenance requirements and installation method with engineering calculations contemplated by the ARTIST and shall include a cost estimate for each. The DESIGN shall include a drawmg or model that presents a meanmgful representation of the DESIGN. The drawing or model will be placed on display for public comment. (h) The ARTIST shall fumish all supplies, materials and equipment necessary for preparation ofthe DESIGN ofthe ARTWORK. (i) After approval of the DESIGN pursuant to Section 1(f), the ARTIST shall fumish to the City's public art manager assigned to this project ("MANAGER") assigned a tentative schedule for fabrication and installation ofthe ARTWORK. G) The ARTIST shall, at the option of the MANAGER, meet with the general public or representatives of the media to discuss the DESIGN ofthe ARTWORK. (k) 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 under this Agreement, the ARTIST 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 the City Council. The insurance must be obtained from a carrier that is admitted and authorized to do business in Califomia 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. (1) ARTIST may, but shall not, be required to assist a third party in the fabrication or installation ofthe ARTWORK. 2. CITY'S OBLIGATIONS (a) The CITY shall make available to the ARTIST, background information on the SITE, if requested by the ARTIST. (b) Subject to Section 1(f) above, the CITY shall make payments to the ARTIST according to the payment schedule in Exhibit "A". The total not-to-exceed fee is $12,500 which includes sales tax if required, and all travel expenses of the ARTIST. (c) A plaque identifying the ARTIST, the title of the ARTWORK, if any, and the year ofthe ARTWORK'S completion will be displayed in the immediate vicinity of the installed ARTWORK at the expense ofthe CITY. (d) The CITY will be responsible for contracting with either the ARTIST or a third party for the fabrication and/or mstallation ofthe ARTWORK. 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 one year or until completion of the design of the ARTWORK, whichever is sooner. Notwithstanding, 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 ARTIST'S failure to deliver or perform the services required under this Agreement, CITY may terminate this Agreement for nonperformance by notifying ARTIST by certified U.S. Mail or next day ovemight mail ofthe termination. If CITY decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CITY may terminate this Agreement upon 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 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 ARTIST has performed which is usable and of worth to CITY in having the Agreement completed. Based upon that finding CITY will determine the fmal payment ofthe Agreement. B. Force Maieure. 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. ARTIST shall not be entitied to damages or additional payment due to such delays. Such events shall include, without limitation: war, govemment 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 ofthe Party so affected. The Party so affect shall give prompt notice to the other Party of such cause and shall take whatever reasonable steps are necessary to relieve the effects of such cause as rapidly as possible. In the event that the Forced Majeure delay extends longer than the CITY or ARTIST 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 ofthe tasks completed and the compensation to be paid. C. This Agreement may be terminated pursuant to Section 1 (f) above. 5. OWNERSHIP OF MATERIAL SUBMITTED Subject to Sections 1(f) above, all materials submitted related to the approved ARTWORK or the approved DESIGN are the sole property ofthe CITY. 6. OWNERSHIP OF THE DESIGN AND/OR ARTWORK Title to the completed DESIGN for the ARTWORK immediately vests in the CITY upon acceptance of the DESIGN and/or ARTWORK by the City, mcluding all rights of ownership, possession and control. After DESIGN completion and prior to acceptance of the ARTWORK, CITY shall have the right, at its option, to claim ownership, possession and control of the DESIGN or ARTWORK which is to be installed at the SITE. 7. REPRODUCTION RIGHTS Subject to the rights granted herein, ARTIST retains all rights under the Copyright Act of 1976 (17 U.S.C. §101 et. seq.), as amended from time to time. The ARTIST hereby grants the CITY, royalty free and irrevocable license to make, or cause to be made, photographs and other two-dimensional reproductions of the DESIGNS 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 ARTIST'S copyright notice on any reproductions and the ARTIST shall acknowledge the work is an original artwork commissioned by the City of Carlsbad, Califomia. 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 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, trademark, service mark or other intellectual property right of any third party. (c) The ARTWORK or a duplicate of the ARTWORK has not been sold elsewhere. 10. WAIVER OF ARTIST'S RIGHTS The ARTIST and CITY acknowledge that the ARTIST may have certain rights under the Federal Visual Artists Rights Act of 1990 ("VARA" 17 U.S.C. § 106A, et seq.). The ARTIST acknowledges and understands that if fabrication is performed, the subsequent installation of the ARTWORK at the SITE may subject the ARTWORK to destmction, distortion, mutilation, or other modification due to its removal by the CITY or its officials, officers, employees, agents, or representatives. The ARTIST and CITY acknowledge that the ARTIST may have certain rights under Califomia Civil Code Section 987 which are not pre-empted by VARA. In consideration ofthe terms and conditions in this Agreement, the ARTIST waives any rights which the ARTIST or the ARTIST'S heirs, beneficiaries, devisees, or personal representatives may have under Califomia Civil Code Section 987 to prevent the removal, destmction, distortion, mutilation, or other modification ofthe ARTWORK. Any contracts or written agreements between the ARTIST and his/her subconti-actors or other artists contributing to the ARTWORK shall include a waiver ofthe ARTIST'S rights under this Agreement. The ARTIST agrees to waive the rights under VARA to prevent the destruction, distortion, mutilation, or other modification of the ARTWORK. The ARTIST'S rights under this Agreement shall cease with the ARTIST'S death 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. 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. 11. SALE OR DONATION OF THE DESIGNS BY THE CITY. The CITY shall have the right to donate or sell the ARTWORK at any time. Before exercising this right, the CITY, by written notice to the ARTIST at ARTIST'S last known address, agrees to give the ARTIST 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 ofthe artwork from the SITE, clean-up of the SITE and delivery to the ARTIST. The ARTIST shall have thirty (30) days from the date ofthe CITY'S notice to exercise the option to purchase the ARTWORK. 12. STATUS OF THE ARTIST The ARTIST shall perform the SGiviccs 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 m 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 conttibution, 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. 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 ernployee, 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 ofsuch 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 attomey's fees incurred by the CITY on account of any of the foregoing liabilities, including liabilities or claims by reason of alleged defects m the DESIGN. 1V. 1 Indemnification for hifringement. The ARTIST 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 ARTIST or his/her agents constitiites an infringement of any patent, copyright, trademark, trade name or other proprietary right of any party. 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 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 indirectiy 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 m 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 indirectiy interested personally in this contract or any part thereof. 21. 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 ofthis contract, shall affect or modify any ofthe terms or obligations herein contained nor entitie the ARTIST to any additional payment whatsoever under the terms of this contract. 22. EXHIBITS All exhibits referenced in this Agreement are attached hereto and incorporated herein by this reference. 23. CONFLICT OF INTEREST If requested by the City, the ARTIST shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carisbad Conflict of Interest Code. The ARTIST shall report investment of interests in real property. 24. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of ARTIST each represent and warrant that they have the legal power, right and actual authority to bind ARTIST to the terms and conditions ofthis Agreement. ARTIST CITY OF CARLSBAD, a municipal corporation of the State of Califomia By: ^ (print name/titJe) HEATHER PIZZUTi Library & Cultural Arts Director ATTEST: BARBARA ENGLESON City Clerk 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. APPROVED AS TO FORM: CELL\ A. BRES^jt Xity Attomey BY: City Attomey EXHIBIT "A" AGREEMENT BETWEEN CITY OF CARLSBAD AND ARTIST, ROGER STOLLER Payment Schedule Task 1 -Design: Not-to-Exceed $12,500 Prepare Design in consultation with architect, Roundabout goal team, and City staff; present Design to the Arts Commission (twice), public and City Council for approval. 1. $5,000 will be paid 30 days after execution of the Agreement by all Parties for working on initial CONCEPT(s) DESIGN 2. $2,500 will be paid after the submission of the initial CONCEPT(s) DESIGN and the receipt of the Arts Commission's approval of initial CONCEPT(s) DESIGN. 3. $2,500 after submission of fmal CONCEPT(s) DESIGN and the receipt of the Arts Commission's approval of the final CONCEPT(s) DESIGN. 4. $2,500 after submission of fmal CONCEPT DESIGN(s) or REPLACEMENT DESIGN and the receipt of the City Council's final approval ofthe final CONCEPT(s) DESIGN or REPLACEMENT DESIGN.