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HomeMy WebLinkAbout1986-08-05; City Council; 8716; ACCEPTANCE OF PUBLIC ART SCULPTURE.. rl .ti 0 d V rl 4. sa wal rl (d *rl w h wal “al co *ti “G 0 “0 N “rn g oa k am arn &Jz 3k su (d al Mal 4u Y MA Gu .ti un ala alh Eo w sal Sh ual ..c ou u Q5 ala url u vi cdcd Ew ala, ..L -”ug Zcd L h aa ala -ti 0 uu *ti $E OS 00 rlu *rl 0 sal UH -. a Qco IN II coI mrl coco .. z 0 4 E s z 3 0 0 ‘$ fl- J-. CITWF CARLSBAD - AGENWILL AB# 871 [P TITLE: DEB MTG. 81 5/86 CITY ACCEPTANCE OF PUBLIC ART SCULPTURE DEPT. LIB CITY RECOMMENDED ACTION: Adopt Resolution No. 8.7 16 , approving Agreement between the City of Carlsbad and James Hubbell and authorizing the Mayor of the City of Carlsbad to execute said Agreement for and on behalf of the City of Carlsbad. ITEM EXPLANATION On July 1, 1986, the Council approved expenditures not to exceed $12,000 for a sculpture to be placed in the Safety and Service Center plaza area. The Arts Commission is recommending the selection of the steel sculpture by James Hubbell. The Selection Committee carefully reviewed the work of three finalists and submitted their recommendations to the Arts Commis- sion for review. The cost of the sculpture is $10,600. FISCAL IMPACT Expenditure from the Civic Arts Fund is not to exceed $12,000. Approximately $194,000 will remain in the Civic Arts Fund. EXHIB ITS A. Agreement with James Hubbell. B. Maquette of sculpture and drawing will be shown at Council meeting. It is in the Manager’s office and can be seen in advance. C. Resolution No. g7/6 , approving an Agreement between the City of Carlsbad and James Hubbell for art work at the City Safety and Service Center. . 1 2 3 4 5 6 7 8 9 10 11 12 0 ' 38 * 13 N g.z m &LIZ "ua 14 ZOEK 15 ezzg ;:z< 10 +&U - ZZE? 16 $gyj t.0 t - '5 5 17 18 19 0 e e RESOLUTION NO. 8716 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING AN AGREENENT BETWEEN THE CITY OF CARLSBAD AND JAMES HUBBELL \ FOR ART WORK AT CITY SAFETY CENTER. 'L Th, City Council of the City of Carlsbad, Califor does hereby esolve as follows: \ \h. 1. Tqat certain agreement between the City of Ca and James Hubbe14 for sculpture to be placed at the City's and Service Centerh a copy of which '-s---ara*ed hereto mar Exhibit A and made a ,part hereof, \ / \ / \ \ is1 hereby appr,oved. \ I 2. That the Mayor of City of Carlsbay is hereby authorized and directed 'to execute sa'd agreement for and i / \,, behalf of the City of Carlpbad. \\ I\/ \ jTi \ PASSED, APPROVED, ~ND AD ?TED at a regular meeting I I\ City Council of tihe I City 9f I Carlsbad, California, held on 1 , 1986 by the following / day of;, '"U to wit: $ 1 I' AYES: t: AB NT; i \ ~ j ,~ 2o I 21 22 23 24 25 26 27 28 , MARY H. CASQER, Mayor \ ATTEST : \\, '\ ALETHA L. RAUTENKRANZ, City Clerk * 0 AGREEMENT FOR COMMISSSION OF PUBLIC ART WORK AGREEMENT BY AND BETWEEN THE CITY OF CARLSBAD AND JAMES HUBBELL THIS AGREEMENT, entered into this 5th day of August, 1986, by and between the City of Carlsbad (the "City") and James Hubbell (the "Artist") residing at 930 Orchard Lane, Santa Ysabel, California. WHEREAS, the City is implementing a public art program by allocating certain funds for the establishment of art-works in public places and au- thorizing the making of payments for the design, execution, fabrication, transportation and installation of works of art and the support of an artist selection process; and WHEREAS, the Cultural Arts percent-for-arts funds have been allocated for the selection, purchase and placement of art work; and WHEREAS, the Artist was selected by the City through the procedures duly adopted by the Arts Commission to design, execute, fabricate and in- stall a three-dimensional work of art (the "Work") in a public space located at the Safety and Service Center described as set forth in Exhibit B hereto (the "Site"); and clarity of the Artist's ideas and statements as represented by the Work; under the conditions hereinafter set forth, agree as follows: WHEREAS, both parties wish to promote and maintain the integrity and NOW, THEREFORE, the City and the Artist, for the consideration and ARTICLE 1. SCOPE OF SERVICES 1.1 General a. The artist shall perform all services and furnish all supplies, material and equipment as necessary for the design, execution, fabrication, transportation and installation of the Work at the Site. color, size, material and texture of the Work, subject to review and accep- tance by the City as set forth in this Agreement. b. The Artist shall determine the artistic expression, scope, design, 1.2 Structural Design Review a. Within ten days after the City approves the Proposal, the Artist shall, after consultation and collaboration with the project architect, prepare and submit to the City detailed working drawings of the Work and the Site, together with such other graphic material as may reasonably be requested by the City in order to permit the city to carry out structural design review and to certify the compliance of the Work with applicable sta tutes and ordinances. Upon request by the Artist, the City and the project architect shall promptly furnish all information, materials and assistance required by the Artist in connection with said submission. * 0 *. b. The City may require the Artist to make such revisions to the Propc as are necessary for the Work to comply with applicable statutes, ordinance or regulations of any governmental regulatory agency having jurisdiction ov the project. c. The City may also require revisions for other practical (non-aesthe d. The Artist's fee shall be equitably adjusted for any increase or reasons. decrease in the Artist's cost of, or time required for, performance of any services under this Agreement as a result of revisions make under this Sect 1.2. Any claim of the Artist for adjustment under this paragraph must be asserted in writing within thirty (30) days after the date of the revision by the Artist. e. Within ten days after its receipt of the Artist's submission pursu: to this Section 1.2, the City shall notify the Artist of its approval (or disapproval) of such submission and of all revisions made in the Proposal : a result thereof. Revisions made pursuant to this Section 1.2 become a pal of the Proposal. f. A no fee permit for installation shall be required. 1.3 Execution of the Work a. After written approval of the submissions and revisions made pursu: to Section 1.2, the Artist shall furnish to the City a tentative schedule 1 completion of fabrication and installation of the Work, including a schedu: for the submission of progress reports, if any. After written approval of schedule by the City, the Artist shall fabricate, transport and install th Work in accordance with such schedule. Such schedule may be amended by wr agreement between the City and the Artist. b. The City shall have the right to review the Work at reasonable tim during the fabrication thereof. The Artist shall submit to the City progr reports in accordance with the schedule provided for in Section 1.3 (a). c. The Artist shall complete the fabrication and installation of the Work in substantial conformity with the Proposal. d. The Artist shall present to the city in writing for further review and approval any significant changes in the scope, design, color, size, ma or texture of the Work not permitted by or not in substantial conformity w the Proposal. A significant change is any change in the scope, design, co size, material, texture or location on the Site of the Work which affects installation, scheduling, site preparation or maintenance for the Work or concept of the Work as represented in the Proposal. 1.4 Delivery and Installation a. The Artist shall notify the City in writing when fabrication of tk Work is completed and he is ready for its delivery and installation at the b. The Artist shall deliver and install the completed Work at the Sit in compliance with the Schedule approved pursuant to Section 1.3. -2- e 0 1.5 Post-Installation a. At the City's expense, the Artist shall be available at such time or times as may be agreed between the City and the Artist to attend any inaugur, tion or presentation ceremonies relating to the transfer of the Work to the City. The City shall use its best efforts to arrange for publicity for the completed Work in such art publications and otherwise as may be determined between the City and the Artist as soon as practicable following installatio written instructions for appropriate maintainence and preservation of the Wc b. Upon installation of the Work, the Artist shall provide to the City 1.6 Final Acceptance a. The Artist shall advise the City in writing when all services requir prior to those described in Section 1.5 (a) have been completed in substanti conformity with the Proposal. b. The City shall notify the Artist of its final acceptance of the Worl c. Final acceptance shall be effective as of the earlier to occur of (1) the date of the City's notification of final acceptance or (2) the 30th day after the Artist has sent the written notice to the City required under Section 1.6 (a) unless the City, upon receipt of such notice and prior to tl expiration of the 30-day period, gives the Artist written notice specifying and describing the services which have not been completed. 1.7 Risk of Loss The risk of loss or damage to the Work shall be borne by the Artist un final acceptance, and the Artist shall take such measures as are necessary protect the Work from loss or damage until final acceptance; except that th 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 Work is in custody, control or supervision of the City or its agents for the purposes transporting, storing, installing or performing any other ancillary service to the Work. 1.8 Indemnity Upon final acceptance of the Work, the City shall, to the extent permi by law, indemnify and hold harmless the Artist against any and all claims c liabilities then existing or arising thereafter in connection with the Work the Site, the Project or this Agreement, except claims by the City against Artist and claims which may occur as a result of the Artist's breach of the warranties provided in Article 4. 1.9 Title Title to the Work shall pass to the City upon final acceptance. -3- 0 0 1.10 Ownership of Documents, Models Upon final acceptance, all studies, drawings, designs, maquettes and models prepared and submitted under this Agreement shall be returned to the Artist and shall belong to the Artist. The City may select and the Artist shall convey to the City one of the original drawings submitted pursuant to Section 1.2 as part of the Proposal, the City representing that such drawing will be used by it solely for exhibition. ARTICLE 2. COMPENSATION AND PAYMENT SCHEDULE 2.1 Fixed Fee The City shall pay the Artist a fixed fee of $10,600 which shall consti- tute full compensation for all services and materials to be performed and fu- nished by the Artist under this Agreement. The fee shall be paid in the fol. lowing installments, expressed as percentages of such fixed fee, each instal ment to represent full and final, nonrefundable payment for all services and materials provided prior to the due date thereof: a. Thirty-four percent (34%) upon the execution of this Agreement, reco: nizing that the Artist has already invested time and expense in preliminary design coordination with the City and other interested parties; the Artist of its approval of the submission of detailed working drawings required under Section 1.3. b. Thirty-four percent (34%) within ten (10) days after the City notifit c. Thirty-two percent (32%) within ten (10) days after final acceptance 2.2 Artist's Expenses The Artist shall be responsible for the payment of all mailing or shipp charges on submission to the City, the costs of transporting the Work to the Site and the costs of all travel by the Artist and the Artist's agents and employees necessary for the proper performance of the services required unde this Agreement. ARTICLE 3. TIME OF PERFORMANCE 3.1 Duration The services to be required of the Artist as set forth in Article 1 sha be completed in accordance with the schedule for completion of the Work as proposed by the Artist and approved by the city pursuant to Section 1.3, prc vided that such time limits may be extended or otherwise modified by writter: agreement between the Artist and the City. -4- a a 3.2 Construction Delays If, when the Artist completes fabrication or procurement of the Work in accordance with the approved schedule and notifies the City that the Work is ready for installation, the Artist is delayed from installing the Work withii the time specified in the schedule as a result of the construction of the Si not being sufficiently complete reasonably to permit installation of the Worl therein, the City shall promptly reimburse the Artist for reasonable transpo tation and storage costs incurred for the period between the time provided ii the schedule for commencement of installation and the date upon which the Si is sufficiently complete reasonably to permit installation of the Work. 3.3 Early Completion of Artist Services The Artist shall bear any transportation and storage costs resulting fr the completion of his services hereunder prior to the time provided in the schedule for installation. 3.4 Time Extensions The City shall always grant a reasonable extension of time to the Artis in the event that there is a delay on the part of the City in performing it: obligations under this Agreement or in completing the underlying capital prc: ject, or if conditions beyond the Artist's control or Acts of God render ti2 performance of the Artist's services impossible or unexpectedly burdensome. Failure to fulfill contractural obligations due to conditions beyond either party's reasonable control will not be considered a breach of contract; pro- vided that such obligations shall be suspended only for the duration of sucl conditions. ARTICLE 4. WARRANTIES 4.1 Warranties of Title The Artist represents and warrants that: (a) the Work is solely the re of the artistic effort of the Artist; (b) except as otherwise disclosed in writing to the City, the Work is unique and original and does not infringe any copyright; (c) that the Work, or a duplicate thereof, has not been acce for sale elsewhere; and (d) the Work is free and clear of any liens from an source whatever. 4.2 Warranties of Quality and Condition The Artist represents and warrants, except as otherwise disclosed to t City in writing in connection with submission of the Proposal pursuant to S 1.2, that: (a) the execution and fabrication of the Work will be performed a workmanlike manner; (b) the Work, as fabricated and installed, will be fr of defects in material and workmanship, including any defects consisting oj "inherent vice" or qualities which cause or accelerate deterioration of tht -5- e a and (c) reasonable maintainence of the Work will not require procedures sub- stantially in excess of those described in the maintainence recommendations to be submitted by the Artist to the City hereunder. The warranties described in this Section 4.2 shall survive for a period of one year after the final acceptance of the Work. The City shall give notj to the Artist of any observed breach with reasonable promptness. The Artist shall, at the request of the City, and at no cost to the City, cure reasona- bly and promptly the breach of any such warranty which is curable by the Artj and which cure is consistent with professional conservation standards (incluc for example, cure by means of repair or refabrication of the Work). ARTICLE 5. INSURANCE 5.1 Performance Bonds The Artist shall not be required by the City to post any performance bonds or similar undertakings, and any requirement of any other authority for performance bonds shall be the responsibility of the City. ARTICLE 6. REPRODUCTION RIGHTS 6.1 General The Artist retains all rights under the Copyright Act of 1976, 17 U.S.C 95 101 et seq., and all other rights in and to the Work except ownership and possession, except as such rights are limited by this Section 6.1. In view of the intention that the Work in its final dimension shall be unique, the Artist shall not make any additional exact duplicate, three-dimensional re- productions of the final Work, nor shall the Artist grant permission to othe to do so except with the written permission of the City. The Artist grants to the City and its assigns an irrevocable license to make two-dimensional reproductions of the Work for non-commercial purposes, including but not lin ted to reproductions used in advertising, brochures, media publicity, and catalogues or other similar publications, provided that these rights are ex- ercised in a tasteful and professional manner. 6.2 Notice All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: date of publication. @ James Hubbell, 6.3 Credit to City The Artist shall use his best efforts to give a credit reading substan tially, "an original work owned and commissioned by the city of Carlsbad", in any public showing under the Artist's control of reproductions of the Wo -6- e 0 ARTICLE 7. ARTIST'S RIGHTS 7.1 Identification The City shall, at its expense, prepare and install at the Site, pursuar to the written instructions and subsequent approval of the Artist, a plaque identifying the Artist, the title of the Work and the year of completion, anc shall reasonably maintain such notice in good repair against the ravages of time, vandalism and the elements. 7.2 Maintainence The City recognizes that maintainence of the work on a regular basis is essential to the integrity of the Work. The City shall reasonably assure th the Work is properly maintained and protected, taking into account the instr tions of the Artist provided in accordance with Section 6.1 (c), and shall r sonably protect and maintain the Work against the ravages of time, vandalism and the elements. 7.3 Repairs and Restoration a. The City shall have the right to determine when and if repairs and restorations to the Work will be made. To the extent practical, the Artist, during the Artist's lifetime, shall be given the opportunity to make or per- sonally supervise significant repairs and restorations and shall be paid a reasonable fee for any such services, provided that the City and the Artist shall agree in writing, prior to the commencement of any significant repairE or restorations, upon the Artist's fee for such services. b. All repairs and restorations shall be made in accordance with recog- nized principles of conservation. 7.4 Alteration of the Work or of the Site a. The City agrees that it will not intentionally damage, alter, modifq b. The City shall notify the Artist of any proposed alteration of the or change the Work without the prior written approval of the Artist. Site that would affect the intended character and appearance of the Work ant shall consult with the Artist in the planning and execution of any such alte ation and shall make a reasonable effort to maintain the integrity of the Wc (1) to remove the Work from public display or (2) to destroy the Work. If the city shall at any time decide to destroy the Work, it shall by notice to the Artist offer the Artist a reasonable opportunity to recover the Work at no cost to the Artist except for an obligation of the Artist to indemnif: and reimburse the City for the amount by which the cost to the City of such recovery exceeds the costs to the City of the proposed destruction. c. Nothing in this Section 7.4 shall preclude any right of the City -7- e 0 .. 7.5 Permanent Record The City shall maintain on permanent file a record of this Agreement ant of the location and disposition of the Work. 7.6 Artist's Address The Artist shall notify the City of changes in his address. The failur to do so, if such failure prevents the city from locating the Artist, shall be deemed a waiver by the Artist of the right subsequently to enforce those provisions of this Article 7 that require the express approval of the Artist Notwithstanding this provision, the City shall make every reasonable effort locate the Artist when matters arise relating to the Artist's rights. 7.7.Surviving Covenants The covenants and obligations set forth in this Article 7 shall be bind upon the parties, their heirs, legatees, executors, administrators, assigns, transferees and all their successors in interest, and the City's covenants a attach and run with the Work and shall be binding to and until twenty (20) y after the death of the Artist. However, the obligations imposed upon the Ci by Sections 7.3 (a) and 7.6 shall terminate on the death of the Artist. The City shall give any subsequent owner of the Work notice in writing of the cc nants herein, and shall cause each such owner to be bound thereby. 7.8 Additional Rights and Remedies Nothing contained in this Article 7 shall be construed as a limitation on such other rights and remedies available to the Artist under the law whic may now or in the future be applicable. 7.9 Resale Royalty If, during the life of the Artist, the City sells or otherwise dispose: of ownership of the Work, the City shall pay the Artist a sum equal to fiftc percent (15%) of the appreciated value of the Work. For the purpose of thi: Agreement, appreciated value shall mean the sales price of the Work less thc original fixed fee stipulated in this Agreement, as amended. Nothing in th: Agreement shall be construed to impose any obligation on the City as to the method of sale or disposal. The choice of such method of sale or disposal shall be the sole right of the City. ARTICLE 8. ARTIST AS INDEPENDENT CONTRACTOR The Artist shall perform all work under this Agreement as an independe contractor and not as an agent or an employee of the City. The Artist shal not be supervised by any employee or official of the City nor shall the Art exercise supervision over any employee or official of the City. -8- e 0 ARTICLE 9. ASSIGNMENT, TRANSFER, SUBCONTRACTING 9.1 Assignment or Transfer of Interest Neither the City nor the Artist shall assign or transfer an interest in this Agreement without the prior written consent of the other, provided, how ever, that claims for money due or to become due from the City under this Agreement may be assigned to a financial institution without approval. 9.2 Subcontracting by Artist The Artist may subcontract portions of the services to be provided here under at the Artist’s expense provided that said subcontracting shall not af the design, appearance or visual quality of the Work and shall be carried ou under the personal supervision of the Artist. ARTICLE 10. TERMINATION If either party to this Agreement shall willfully or negligently fail t fulfill in a timely and proper manner, or otherwise violate, any of the cove nants, agreements or stipulations material to this Agreement, the other part shall thereupon have the right to terminate this Agreement by giving written notice to the defaulting party of its intent to terminate specifying the gro for termination. The defaulting party shall have thirty (30) days after rec of the notice to cure the default. If it is not cured, then this Agreement shall terminate. In the event of the default by the City, the City shall pi ly compensate the Artist for all services performed by the Artist prior to t mination. In the event of default by the Artist, all finished and unfinisht drawings, sketches, photographs, and other work products prepared and submit or prepared for submission by the Artist under this Agreement shall at the ( option become its property, provided that no right to fabricate or execute t Work shall pass to the City, and the City shall compensate the Artist pursu: to Article 2 for all services performed by the Artist prior to termination. Notwithstanding the previous sentence, the Artist shall not be relieved of liability to the City for damages sustained by the city by virtue of any brc of this Agreement by the Artist, and the City may reasonably withhold paymer to the Artist until such time as the exact amount of such damages due the Cj from the Artist is determined. ARTICLE 11. CONTRACT ADMINISTRATOR The Contract Administrator for this Agreement shall be the Manager of Cultural Arts Program. Wherever this Agreement requires any notice to be g to or by the City, or any determination or action to be made by the City, t Manager shall represent and act for the City. -9- 0 0 a, ARTICLE 12. NON-DISCRIMINATION In carrying out the performance of the services designated, the Artist shall not discriminate as to race, creed, religion, sex, age, national origin or the presence of any physical, mental or sensory handicap, and the Artist shall comply with the equality of employment opportunity provisions of Ordi- nance as presently existing or hereafter amended. ARTICLE 13. COMPLIANCE The Artist shall be required to comply with Federal, State and City sta- tutes, ordinances and regulations applicable to the performance of the Artisi services under this Agreement. ARTICLE 14. ENTIRE AGREEMENT This writing embodies the entire agreement and understanding between thc parties hereto, and there are no other agreements and understandings, oral 0: written, with reference to the subject matter hereof that are not merged her in and superceded hereby. ARTICLE 15. MODIFICATION No alteration, change or modification of the terms of the Agreement sha be valid unless made in writing and signed by both parties hereto and approv by appropriate action of the City. ARTICLE 16. WAIVER No waiver of performance by either party shall be construed as or oper: as a waiver of any subsequent default of any terms, covenants and condition: of this Agreement. The payment or acceptance of fees for any period after E default shall not be deemed a waiver of any right or acceptance of defectivl performance. ARTICLE 17, GOVERNING LAW This Agreement, regardless of where executed or performed, shall be go verned by and construed in accordance with the laws of the State of Califor -10- 0 0 .e i ARTICLE 18. HEIRS AND ASSIGNS This Agreement shall be binding upon and shall inure to the benefit of the City and the Artist and their respective heirs, personal representatives, successors and permitted assigns. ARTICLE 19. NOTICES All notices, requests, demands and other communications which are requi or permitted to be given under this Agreement shall be in writing and shall deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail return receipt requested, portage prepaid, as follows: a. if the City, to: b. if to the Artist, at the address first above written with a copy to: IN WITNESS WHEREOF the parties hereto have executed this Agreement on t day and year first written above. Attest : CITY, By : By : Mayor City Clerk ARTIST: Witness Name Approved as to form and legal sufficiency: Signature -11- 4 2018 SAL CARLSBA (619) 436 TELEX 49' SOURCE I e a ,DONA Z. MEILAGH TO: Editor FROM: Dona Z, Meilach Arts Commissioner, City of Carlsbad Dear Editor: I have just returned from Eastern Canada where much of the vitality and energy of the cities is expressed through their architecture and public art, Art is an entity that people see as they go about their daily tasks just as it is in the great cities of Europe, Sculptures are outdoors in wonderful settings and people interact with them, Children climb on them, tourists have photos taken in front of them. They are not untouchable items in enclosed museum walls. Carlsbad has the opportunity, the wheels in place, to be a museum without walls, But the concept has broader implications, Decisions can't always be made based on whether one person likes or dislikes a particular piece. Public art brings people to a city. It generates interest and excitement. If it generates controversy -- marvelous1 Better that than apathy, Exciting, even controversial art, will awaken people to the existence of Carlsbad -- not as a San Diego bedroom community, or because of La Costa -- we will become known as a vital, forward moving city. We hope to attract art related conferences, to have tourists come for our music, sculpture and culture, We aim to feed their minds as well as their sun-tanned bodies. Our potential is exhilarating. The selection committee has made a positive, h3.d beginning. We are fortunate to have a sculptor of Jim Hubbell's international renown in our midst. More fortunate that he has agreed to create a sculpture at the modest budget we've set for this first commission, A price below what the city probably pays for one automobile, L. A * e * a MEILACH Page 2 Your concerns, your comments, negative and positive are appreciated. Appreciated, also would be the leeway to embark 01 this new venture with the fervor and enthusiasm with which well begun. We guarantee it will be worth watching. We welcome all t Carlsbad to share, to encourage, to support the.Arts Commissioi we embark on a new course of culture for the city, a course in art-awareness and appreciation. ,. Dona Z. Meilach Arts Commissioner, City of Carlsbad 0