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Home My WebLink About2001-05-15; City Council; 16188; Purchase of Artwork and Appropriation of Funds!i 6 E % . . p 2 1 Y z CITY OF CARLSBAD - AGENDA BILL AB# I(,; !$r TITLE: APPROVAL OF PURCHASE OF ARTWORK AND MTG. 05122101 APPROPRIATION OF FUNDS DEPT. ARTS CITY MGR- RECOMMENDED ACTION: City Council adopt Resolution No. debl-i6 approving the purchase of the artwork “Contemplation” by artists T.J. Dixon and James Nelson for placement at the Cole Library, and appropriation of funds in the amount of $22,145.00. ITEM EXPLANATION: In September 2000, City Council requested the Arts Commission, through its process for evaluating and recommending public art, evaluate and recommend the possibility of purchasing the artwork “Contemplation” created by artists T.J. Dixon and James Nelson. Following its process, the Arts Commission suggested the artwork be placed in the newly landscaped area in front of the Cole Library. The Commission solicited public comment at the Dove and Cole Libraries. The majority of Carlsbad residents were strongly in favor of the artwork. The recommendation of purchasing the sculpture and the placement of the artwork was unanimously approved by the Library Board of Trustees. At its February I, 200 I meeting, the Arts Commission approved the recommendation to purchase the artwork and install it in the newly landscaped area in front of the Cole Library, and appropriate funds in the amount of $22.145.00. FISCAL IMPACT: The total cost of the artwork (which includes the pedestal and taxes) is $22,145. Funds are available to appropriated from Cultural Arts Fund 142. l?!:!f:on No. &36/-/q& 2. Contract to purchase the artwork with artists T.J. Dixon and James Nelson. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO 2o01-145 -___----- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING THE PURCHASE OF THE ARTWORK “CONTEMPLATION” AND APPROPRIATION OF FUNDS WHEREAS, the City Council requested the Arts Commission evaluate and make a recommendation on the possibility of purchasing the artwork “Contemplation” created by artists T.J. Dixon and James Nelson”; and WHEREAS, the Arts Commission has a policy for evaluating and recommending public art for the City; and WHEREAS, the Arts Commission followed its policy and recommended the artwork be placed in the new landscaped area in front of the Cole Library”: and WHEREAS, this recommendation was approved by the Library Board of Trustees and is strongly favored by a majority of Carlsbad residents. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, as follows: I. That the above recitations are true and correct. 2. That the purchase of the artwork titled, “Contemplation” created by T.J. Dixon and James Nelson for placement at the Cole Library is approved. 3. That the Finance Director is hereby authorized to appropriate funds in the amount of $22.145.00 for this purchase. PASSED, APPROVED AND ADOPTED, at a regular meeting of the City Council of the City of Carlsbad, California, held on the eday of MaY , 200 I, by the following vote, to wit: AYES: Counicl Members Lewis, Finni NOES: Council Member Hall. ABSENT: Council Member Kulchin. ATTEST: \ AGREEMENT FOR PURCHASE OF ARTWORK THIS AGREEMENT, entered into this 22nd day of IQY, 2002 by and between the City of Carlsbad, a municipal corporation (CITY) and T.J. Dixon and James Nelson (ARTISTS), whose l&al address is: 388 Orpheus Avenue, Encinitas, CA 92024. WITNESSETH: WHEREAS, the ARTISTS have created a certain artwork (the ARTWORK): Title: Contemplation Medium: sculpture, bronze; pedestal, steel fabricated, powder-coated Dimensions: sculpture, 48” h X 24” w; pedestal, 48” h x 9 3/4”w (top) x 18” w (base) Completion Date: August 200 I WHEREAS, the CITY proposes to purchase the ARTWORK from the ARTISTS. NOW, THEREFORE, the CITY and the ARTIST, for the consideration hereinafter named, agree as follows: I. OWNERSHIP OF THE ARTWORK l-l The ARTIST hereby transfers title and possession of the ARTWORK to the CITY. l-2 sales tax. The CITY agrees to pay the ARTIST as compensation, a fee of $22,145 including l-3 The ARTIST warrants that she 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. l-4 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 ARTIST to any additional payment whatsoever under the terms of this contract. 2. REPRODUCTION RIGHTS Except as otherwise specified in the Agreement, the ARTIST retains all rights under the Copyright Act of I976 (I 7 U.S.C. 5 IO I et seq.). The ARTIST grants to the GIN a fully-paid-up irrevocable license to make reproductions of the ARTWORK for noncommercial purposes, including but not limited to, reproductions used in CITY business, advertising, brochures, posters, media publicity, catalogs, photographs, drawings, or publications of the CIN, providing however, the CITY may not make a full scale exact duplicate of the ARTWORK. The CITY and the ARTIST shall include the following words on any reproduction: “An original work owned by the City of Carlsbad, California”. 3. REGISTRATION OF COPYRIGHT The responsibility for registration of the copyright shall be the responsibility of the copyright holder under this agreement. 4. WARRANTY The ARTIST represents and warrants that: (a) The design of the ARTWORK is solely the result of the artistic effort of the ARTIST. (b) The design of the ARWORK is unique and original and does not infringe upon any copyright. (c) The design of the ARTWORK has not been sold. (d) The ARTIST shall not make any exact duplicate reproduction of the ARTWORK, no. 5 of a limited edition of 6, nor shall the ARTIST grant permission to others to do so, except with the written permission of the CITY. 5. WARRANTY OF QUALITY AND CONDITION The ARTIST represents and warrants to the CITY that: (a) the execution and fabrication of the ARTWORK was performed in a workmanlike manner; (b) the ARTWORK, as fabricated, is free of defects in material and workmanship, including any defects consisting of “inherent vice” or qualities which cause or accelerate deterioration of the ARTWORK; and (c) reasonable maintenance of the ARTWORK will not require procedures substantially in excess of those described in the maintenance recommendations to be submitted by the ARTIST to the CITY and attached as Exhibit A to this Agreement. The warranties described in this section shall survive for a period of one year after the final acceptance of the ARTWORK. The CITY shall give notice to the ARTIST of any observed breach with reasonable promptness. 6. WAIVER The ARTIST recognizes that he or she may have certain rights arising from the “California Art Preservation Act” (Civil Code 5987 et seq.) or the “Visual Artists’ Rights Act of 1990” (I 7 U.S.C. 9106A 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 assigned hereby waive any and all rights he or she may have under the provisions of the ‘California Art Preservation Act” (Civil Code $987 et seq.) or the “Visual Artists’ Rights Act of 1990” (I7 U.S.C. §l06A 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. 7. HOLD HARMLESS AGREEMENT ARTISTS agree to defend, indemnify, protect and hold CITY and its agents, officers and employees harmless from and against any and all claims asserted or liability established for breech of warranty or for damages or injuries to any person or property, including injury to ARTISTS’ employees, agents or officers, which arise from, are connected with, are caused by, or are claimed to be caused by the acts or omissions of the ARTISTS, or their agents, officers or employees, in performing the work or services under this Agreement; and ARTISTS agree to indemnify the CITY for all expenses of investigating and defending against the above described claims and liability. However, the ARTISTS’ duty to indemnify and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the CITY, or its agent, officer or employers. Indemnity Upon final acceptance of the work, the CITY shall, to the extent permitted by law, indemnify and hold harmless the ARTISTS against any and all claims and liabilities then existing or arising thereafter in connection -with the work, the site, the project or this Agreement, except claims by the CITY against the ARTISTS and claims which may occur as a result of the ARTISTS’ breach of the warranties provided in Section 4 and above. Acknowledged and Accepted: ARTISTS: CITY OF CARLSBAD, a municipal corporation of the State of California By: &&I&&!!!~~ Claude A. “Bud” Lewis, Mayor ATTEST: APPROVAL AS TO FORM: &J-m%& /r’> A9Qz&fi*u Deputy City