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HomeMy WebLinkAboutWalker, Skye; 2014-08-19;AGREEMENT FOR PUBLIC MURAL Skye Walker THIS AGREEMENT is entered into on the M day of ^iMuft~^ . 2014, by the City ofCarlsbad, a municipal corporation, hereinafter referred to as "CITY" and Skye Walker, an individual, hereinafter referred to as "ARTIST". RECITALS WHEREAS, the CITY wants to connnnission the ARTIST to design and paint a MURAL on the East facing wall at the Boys & Girls Club in Carlsbad located at 3115 Roosevelt Street, Carlsbad. ("SITE") according to the paynnent schedule set forth in Exhibit "A", Payment Schedule, and WHEREAS, the ARTIST has been selected, pursuant to procedures adopted in the Carlsbad Municipal Code 3.28.060, to design and paint a MURAL and the necessary 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. The ARTIST shall, to the best of his artistic ability, design and paint a MURAL in a manner that is consistent with the intent and purpose of this Agreement. The ARTIST shall design and paint a MURAL, taking into consideration the nature of the SITE, the surrounding community, the City desire to have low maintenance costs to preserve the MURAL, and the amount of money allocated for the MURAL by the CITY (a not-to-exceed amount of $12,000 that Includes the preparation, renderings, Implementation) payable according to Exhibit "A", Payment Schedule. The ARTIST shall paint the MURAL taking Into consideration the safety of the public, Including, but not limited to, the safety of persons traveling on public rights of way adjacent to the mural site. The ARTIST shall design and paint the MURAL in a manner which conforms with the regulations of all public and private agencies with jurisdiction over the SITE or the ARTWORK and with all other applicable laws, regulations and standards. Including but not limited to, federal, state, and local. The ARTIST shall meet regularly with CITY staff to ensure the design and future implementation of the MURAL complies with all provisions of this Agreement. The ARTIST shall submit to the Boys & Girls Club and Staff a design proposal. In a tangible form, that will be reviewed and approved by the Boys & Girls Club Board and City Staff. The ARTIST shall furnish ail supplies, materials and equipment necessary for preparation ofthe DESIGN AND painting ofthe MURAL. 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 oflnsurance indicating $1 million general liability coverage, naming CITY as additional Insured. The Insurance shall cover all phases ofthe 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 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 mall. The ARTIST shall be required to provide proof of automobile liability coverage as required by the Risk Manager. 2. City's Obligations. CITY shall make payments to the ARTIST according to the payment schedule In Exhibit "A". The total not-to-exceed fee is twelve thousand dollars ($12,000). 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 an additional period of up to one year with the consent of both Parties and by a written amendment to this Agreement. 4. Termination and Force Majeure. In the event of the ARTIST'S failure to deliver or perform the services required under this Agreement In a timely manner, CITY may terminate this Agreement for nonperformance by notifying ARTIST by certified U.S. Mall or next day overnight mall of the 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 final payment of the Agreement. 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. ARTIST 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 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 of the tasks completed and the compensation to be paid. 5. 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 MURAL 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 forthe 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 Include the following words on any reproduction: "An original work commissioned by the City of Carlsbad, California." 6. Registration of Copyright The responsibility for registration ofthe copyright shall be the responsibility of the copyright holder under this Agreement. 7. Warranties. 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. 8. 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 destruction, 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 California 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 California Civil Code Section 987 to prevent the removal, destruction, distortion, mutilation, or other modification ofthe ARTWORK. Any contracts or written agreements between the ARTIST and his/her subcontractors or other artists contributing to the ARTWORK shall Include a waiver of the 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. 9. 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. 10. 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 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. 11. Immigration Act. The ARTIST shall be aware ofthe requirements ofthe 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. 12. Nondiscrimination Clause. The ARTIST shall comply with the state and federal laws regarding nondiscrimination. 13. 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 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. 14. 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 ofthe 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. 14.1 Indemnification for Infringement. 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 constitutes an Infringement of any patent, copyright, trademark, trade name or other proprietary right of any party. 15. 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. 16. 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 Indirectly employed by the subcontractor, as ARTIST is for the acts and omissions of persons directly employed by ARTIST. Nothing contained In this agreement shall create any contractual relationship between any subcontractor of ARTIST and the CITY. The ARTIST shall bind every subcontractor and every subcontractor of a subcontractor by the terms of this agreement applicable to ARTIST'S work unless specifically noted to the contrary in the subcontract In question and approved In writing by the CITY. 17. 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. 18. Verbal Agreement or Conversation. No verbal agreement or conversation with any officer, agent, or employee ofthe CITY, either before, during or afterthe execution ofthis contract, shall affect or modify any of the terms or obligations herein contained nor entitle the ARTIST to any additional payment whatsoever under the terms of this contract. 19. Exhibits. All exhibits referenced In this Agreement are attached hereto and incorporated herein by this reference. (Remainder of Page Intentionally Left Blank) 20. 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 of this Agreement. ARTIST CITY OF CARLSBAD, a municipal corporation of the State of California By: (sign here) (prir print name/title (sign here) (print name/title) Authorized Signatory ATTEST: BARBARA ENGLESO 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 offlcer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY: //^A^^^M-^ f-J^y-y^ A9§^tant City Attorney EXHIBIT "A" AGREEMENT BETWEEN CITY OF CARLSBAD AND ARTIST, SKYE WALKER Payment Schedule Task 1 -Mural Design and Painting: Not-to-Exceed $12,000 1. $4,000 will be paid after execution of the Agreement by all Parties 2. $8,000 after completion of final MURAL.