HomeMy WebLinkAbout2002-01-08; City Council; 16497; Contract For Public Art Zone 19 ParkMTG. 01/08/02
DEPT. Arts
APPROVAL OF CONTRACT FOR
PUBLIC ART AT ZONE 19 PARK
1 RECOMMENDED ACTION:
City Council Adopt Resolution No. &)oa-00 7 approving the contract for $100,000 with artists
Richard Keely and Anna O’Cain to create and install artwork at the Zone 19 Park.
ITEM EXPLANATION:
A Request for Qualifications for this project was publicized in the Carlsbad Arts News, in a statewide
visual arts magazine, and was sent to California artists. 47 artists responded to the request. A
Selection Committee comprised of an Arts Commissioner, a Parks Commissioner, a local visual
artist, the architects and City staff reviewed and interviewed 6 artists taking into consideration the
nature of the project and budget. The Committee chose San Diego artists Richard Keely and Anna
O’Cain. The artists have met three times with the Committee to develop a design concept of the
artwork.
The concept developed thus far is centered around the theme of the history of parks, sports and
leisure, locally, nationally and internationally. Artwork may consist of the following: . Photo-etched panels with images and quotations near the sports fields . Photo-etched panels along the walkways that traverse the park . Etched glass panels in the community building . Photo-etched panels along the wall of the courtyard of the community building.
If this contract is approved, the artists will continue to meet with the Committee to further develop the
artwork which will then go through the City’s public art process for implementation.
FISCAL IMPACT:
Funds in the amount of $100,000 have been appropriated in the Zone 19 Park Capital
Improvement Project account.
EXHIBITS:
1. Resolution No. &TO d -00)
2. Contract with Richard Keely and Anna O’Cain.
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RESOLUTION NO. 2002-007
A RESOLUTION OF-THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA, APPROVING THE
CONTRACT FOR PUBLIC ART AT ZONE I9 PARK
WHEREAS, the city has determined to place a public art component in Zone I9 park; and
WHEREAS, the Arts Office placed a Request for Qualifications in various publications
throughout the state of California in various publications looking for California artists; and
WHEREAS, a Selection Committee comprised of an Arts Commissioner, Parks
Commissioner, a local artist, the architects and City staff reviewed and interviewed artists based
on the nature of the project and the budget; and
WHEREAS, San Diego artists Richard Keely and Anna O’Cain were selected to design
and execute artwork for Zone I9 park; and
WHEREAS, the artists are meeting with the Selection Committee to develop a design
concept of the artwork which will go through the City’s public art process.
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 contract with artists Richard Keely and Anna 0”Cain to design and execute
artwork for Zone I9 Park for $100,000 is hereby approved.
PASSED, APPROVED AND ADOPTED, at a regular meeting of the City Council
of the City of Carlsbad, California, held on the 8th day of JANUARY (2002, by the
following vote, to wit:
AYES: Council Members Lewis, Kulchin, Finnila, Nygaard, Hall
NOES: None
ABSENT: None
E M. WOOD, City Clerk
AGREEMENT FOR DESIGN AND EXECUTION OF PUBLIC ARTWORK
This agreement is entered into on the 1 lth day of JANUARY 2002, by the City of
Carlsbad, a municipal corporation, hereinafter referred to as “CITY” and Richard Keely and
Anna O’Cain, hereinafter referred to as the “ARTISTS”.
RECITALS
WHEREAS, the CITY is implementing a public art program pursuant ,to’ Carlsbad
Municipal Code Chapter 2: I8 by allocating funds for the placement of artwork in ,public places
and authorizing payment for the design, execution, and placement of such works of art; and
WHEREAS, the CITY wants to purchase certain public ARTWORK, hereinafter
referred to as the “ARTWORK,” to be installed in the Zone I9 Community Park, located at
Poinsettia Lane and Ambrosia Road; and
WHEREAS, the ARTISTS have been selected, pursuant to procedures adopted by the
CITY, to create the ARTWORK and funds have been allocated for that purpose;
NOW, THEREFORE, the CITY and the ARTISTS, for the consideration and under the
conditions hereinafter set forth, agree as follows:
I. ARTISTS’ OBLIGATIONS
(4 The ARTISTS shall, to the best of their artistic ability, design, fabricate,
construct and install the ARTWORK.
(b) The ARTISTS shall create ARTWORK taking into consideration the nature of
the SITE, the surrounding community, the amount of money allocated for the ARTWORK by
the CITY (a total of $I 00,000, to include both design, execution and installation of the
ARTWORK as shown in Exhibit “A”), and the amount of maintenance required.
(4 The ARTISTS shall create 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.
(4 The ARTISTS shall create 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.
(4 The ARTISTS shall meet regularly with CITY staff to ensure the design and
implementation of the ARTWORK complies with all provisions of this agreement.
0 Within 30 days after the approval of the Zone I9 Park Master Plan by the CITY,
the ARTISTS shall submit to the CITY a design concept, hereinafter referred to as “DESIGN” in
a tangible form. The CITY shall approve or disapprove the DESIGN. If the DESIGN is
disapproved, the ARTISTS may submit a second DESIGN to the CITY within 30 days. The CITY
shall notify the ARTISTS within a reasonable time whether it approves or disapproves the
second DESIGN. If the CITY disapproves, the contract shall terminate with payment made to
the ARTISTS as shown in Exhibit “A” and all DESIGN materials shall be returned to the
ARTISTS. In that event, neither party shall have further obligation to the other, with the
exception of the ARTISTS’ obligations under the hold harmless and indemnity provisions of this
agreement.
Revised 3/201921Revised 719198
k) The DESIGN shall specify materials, -dimensions, finish, color, and any other
information which is necessary. The DESIGN shall also include the maintenance requirements
and installation method contemplated by the ARTISTS and an estimate of their cost. The
DESIGN shall include a model, to present a meaningful representation of the DESIGN. The
model will be placed on display for public comment.
O-9 The ARTISTS shall furnish all supplies, materials and equipment necessary for
preparation of the DESIGN and execution of the ARTWORK.
(0 After approval of the DESIGN pursuant to Section I(f), the ARTISTS 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 ARTISTS shall
fabricate, transport and install the ARTWORK in accordance with such schedule. Such schedule
may be amended by written agreement between the Arts Manager and the ARTISTS.
The Arts Manager shall have the right to review the ARTWORK at reasonable times
during the fabrication thereof.
0) The ARTISTS shall complete the fabrication and installation of the ARTWORK
in substantial conformity with the DESIGN.
If it is discovered, after the approval of the DESIGN, that revisions to the
DESIGN are necessary for the ARTWORK to comply with any law, standard or regulation, the
ARTISTS shall make such revisions as are necessary. If the revisions required substantially
change the approved DESIGN, the CITY may approve the revisions or recommend termination
of the contract pursuant to the termination clause in Section 4. Minor changes may be
approved by the Arts Manager.
6) The ARTISTS 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
entities.
(1) The ARTISTS shall notify the Arts Manager in writing when fabrication of the
ARTWORK is completed and they are ready for its delivery and installation at the SITE.
The ARTISTS 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 for the timely installation of the ARTWORK, including landscaping, footings, plumbing,
and area and spot lighting of the ARTWORK.
(m) Upon installation of the ARTWORK, the ARTISTS shall provide to the Arts
Manager written instructions for appropriate maintenance and preservation of the ARTWORK.
(4 The ARTISTS 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. The
ARTISTS shall not release any information to the public related to the services performed under
this agreement without advance written permission of the Arts Manager.
(0) The risk of loss or damage to the ARTWORK shall be borne by the ARTISTS
until final acceptance, and the ARTISTS 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
Revised 3/20/92/Revised 719198
or wholly completed ARTWORK is in the custody, control or supervision of the CITY or its
agents for the purposes of transporting, storing, installing or performing any other ancillary
services to the ARTWORK.
(P) The ARTISTS 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 ARTISTS must provide a certificate of insurance indicating $I million
general liability coverage, showing 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
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 ARTISTS shall be required to provide proof of automobile liability coverage
as required by the Risk Manager.
2. CITY’S OBLIGATIONS
(4 The CITY shall make available to the ARTISTS, background information on the
SITE, if requested by the ARTISTS.
(b) The CITY shall make payment to the ARTISTS as shown in Exhibit “A”. This
represents payment in full. The total fee is $100,000 which includes sales tax if required, and all
travel and transportation expenses of the ARTISTS.
(4 A plaque identifying the ARTISTS, 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. TIME EXTENSIONS
The CITY will grant a reasonable extension of time to the ARTISTS in the event that
there is a delay on the part of the CITY in performing its obligations under this agreement, or if
conditions beyond the ARTISTS’ control or act of God render timely performance of the
ARTISTS’ services impossible or unexpectedly burdensome. Failure to fulfil1 contractual
obligations due to conditions beyond either party’s reasonable control will not be considered a
breach of contract; provided that such obligations shall be suspended only for the duration of
such conditions.
4. TERMINATION
If either party to this agreement shall willfully or negligently fail to fulfill in a timely and
proper manner, or otherwise violate, any of the covenants, agreements or stipulations materials
to this agreement, the other party shall thereupon have the right to terminate this agreement by
giving notice to the defaulting party of its intent to terminate specifying the grounds for
termination. The defaulting party shall have (30) days after receipt of the notice to cure the
default. It if is not cured, then this agreement shall terminate. In the event of default by the
CITY, the CITY shall compensate the ARTISTS for all services performed by the ARTISTS prior
to termination according to the schedule shown in Exhibit “A”. In the event of default by the
ARTISTS, all finished and unfinished drawings, sketches, photographs, and other work products
prepared and submitted or prepared for submission by the ARTISTS under this agreement shall,
Revised 3/20192/Revised 719198
at the CITY’s option become its property, provided that no right to fabricate or execute the
ARTWORK shall pass to the CITY and the CITY shall compensate the ARTISTS according to
the schedule shown in Exhibit “A” for all services performed by the ARTISTS prior to default.
Notwithstanding the previous sentence, the ARTISTS shall not be relieved of liability to the
CITY for damages sustained by the CITY by virtue or any breach of this agreement by the
ARTISTS, and the CITY may reasonably withhold payments to the ARTISTS until such time as
the exact amount of such damages due the CITY from the ARTISTS is determined.
5. OWNERSHIP OF MATERIAL SUBMITTED
All materials submitted related to the ARTWORK or the DESIGN are the property of
the CITY.
6. OWNERSHIP OF THE ARTWORK
Title to the completed ARTWORK immediately vests in the CITY upon completion,
along with all rights of ownership, possession and control. Prior to completion of the
ARTWORK, CITY shall have the right, at its option, to claim ownership, possession and control
of the uncompleted portions of the ARTWORK which are on the SITE.
7. REPRODUCTION RIGHTS
The ARTISTS retains all rights under the Copyright Act of I976 (I 7 U.S.C. $10 I et.
seq.). The ARTISTS grant to the CITY a paid in full irrevocable license to make reproduction of
the ARTWORK for noncommercial purposes, including but not limited to, reproductions used
in CITY business, advertising, brochures, posters, media publicity, catalogs, souvenirs,
photographs, drawings, or publications of or about the CITY, providing however, the CITY may
not re-license the ARTWORK nor make a full scale exact duplicate of the ARTWORK nor alter
ARTWORK by selecting portions without ARTISTS’ consent. The CITY shall include the
ARTISTS’ copyright notice on any reproductions and the ARTISTS 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
I. Warranty of Title
The ARTISTS represents and warrants that:
:b”,’
The ARTWORK is solely the result of the artistic effort of the ARTISTS.
The ARTWORK is unique and original and does not infringe upon any
copyright.
(4 The ARTWORK or a duplicate of the ARTWORK has not been sold
elsewhere.
2. Warranty of Quality and Condition
THE ARTISTS represent and warrant that:
(4 The execution and fabrication of the ARTWORK will be performed in a
workmanlike manner.
Revised 3/20/92/Revised 719198
(4 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
. ARTISTS 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 ARTISTS of any observed
breach with reasonable promptness. The ARTISTS, shall at the request of the CITY, and at no
cost to the CITY, cure reasonable and promptly the breach of any such warranty which is
curable by the ARTISTS and which cure is consistent with professional conservation standards
(including, for example, cure by means of repair or re-fabrication of the ARTWORK).
I 0. REPAIRS
The CITY will have the right to determine when and if repairs and restorations to the
ARTWORK shall be made.
I I. WAIVER
The ARTISTS recognizes that he or she may have certain rights arising from the
“California Art Preservation Act” (Civil Code $987 et seq.) or the “Visual Artists’ Rights Act of
1990” (I 7 U.S.C.$l06A et seq.). Those Acts require that a waiver of their provisions be
expressly made in writing and being fully informed, the Artists and his or her agents, heirs,
successors and assigns 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” (I 7 U.S.C. 9 l06A et seq.). The Artists, 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. STATUS OF THE ARTISTS
The ARTISTS shall perform the services provided for herein in ARTISTS’ own way as
independent contractors and in pursuit of ARTISTS’ independent calling, and not as an employee
of the CITY. ARTISTS 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.
13. WITHHOLDINGS
The CITY shall not make any federal or state tax withholdings on behalf of the ARTISTS.
The CITY shall not be required to pay workers’ compensation insurance on behalf of the
ARTISTS. The ARTISTS agree 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 ARTISTS or any employee of the ARTISTS for work done
under this agreement.
14. IMMIGRATION ACT
The ARTISTS shall be aware of the requirements of the Immigration Reform and
Control Act of I986 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.
Revised 3120192lRevised 719198
15. NONDISCRIMINATION CLAUSE
The ARTISTS shall comply with the state and federal laws regarding nondiscrimination.
16. COVENANTS AGAINST CONTINGENT FEES
The ARTISTS warrants that he has not employed or retained any company or person,
other than a bona fide employee working for the ARTISTS, to solicit or secure this agreement,
and that ARTISTS 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.
I 7. 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 ARTISTS or ARTISTS’ agents, employees, or representatives. ARTISTS
agree 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. ASSIGNMENT OF CONTRACT
The ARTISTS 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 ARTISTS subcontract any of the work to be performed under this agreement,
ARTISTS shall be fully responsible to the CITY for the acts and omissions of ARTISTS’
subcontractor and of the persons either directly or indirectly employed by the subcontractor, as
ARTISTS are for the acts and omissions of persons directly employed by ARTISTS. Nothing
contained in this agreement shall create any contractual relationship between any subcontractor
of ARTISTS and the CITY. The ARTISTS shall bind every subcontractor and every
subcontractor of a subcontractor by the terms of this agreement applicable to ARTISTS’ 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 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
Revised 3/20/92/Revised 719198
with the performance of this contract shall become directly or indirectly 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 of this contract, shall affect or modify any of the
terms or obligations herein contained nor entitle the ARTISTS to any additional payment
whatsoever under the terms of this contract.
22. CONFLICT OF INTEREST
The ARTISTS 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
ARTISTS shall report investment of interests in real property.
Acknowledged and Accepted:
ARTISTS:
Al-TEST:
4
APPROVAL AS TO FORM:
Deputy City Attorney
Attachment(s):
Exhibit A
Revised 3120192lRevised 719198
EXHIBIT A
AGREEMENT BETWEEN CITY OF CARLSBAD AND RICHARD KEELY AND ANNA O’CAIN
Payment Schedule
I.
2.
3.
4.
5.
Acceptance of design (completion of model)
Upon approval of design or disapproval of second design
Upon completion of 25% of construction
Upon completion of 75% of construction
Upon acceptance of completed artwork
Total $ I00,000
$5,000
$ I0,000
$25,000
$50,000
$ I0,000
Revised 3/20/92/Revised 719198
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‘RODUCER I THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION 3chell & Eggert Insurance Agcy Tames R. Eggert, Sec/Treas 1901 Raytheon Road San Diego CA 92111-1606
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