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HomeMy WebLinkAbout2005-11-15; City Council; 18341; Approval Public Art ContractAB# 18,341 MTG, - 1 1 /15/05 DEPT. Arts APPROVAL OF PUBLIC ART CONTRACT RECOMMENDED ACTION: DEPT. HD. fdf CITY ATTY. t4 CITY MGR- City Council adopt Resolution No. 2005-337 approving a public art contract with artists T.J. Dixon and James Nelson in the amount of $128,000 to create and install artwork for the Carlsbad Municipal Golf Course. ITEM EXPLANATION: Background In 1997, 67 artists responded to a Request for Qualifications to create and install artwork for the Carlsbad Municipal Golf Course. From the 67 artists that responded, the Golf Course Public Art Committee selected three to develop proposals for this commission. The three proposals, which consisted of models and display boards with explanations about the artwork, were placed on public display for a period of one month. Approximately 100 responses were received, with the majority favoring the proposal by T.J. Dixon and James Nelson. The Golf Course Public Art Committee reviewed the three proposals and all of the public responses, and then recommended that the proposal by artists T.J. Dixon and James Nelson, (three life-sized bronze golfers -- a man, a woman, and a caddy with a bronze golf bag) be presented to the Arts Commission for approval. On July 1, 1998, the Arts Commission reviewed the Dixon/Nelson proposal, the Golf Course Public Art Committee's recommendation, and the public comments. The Commission expressed concerns regarding the shape of the woman golfer and the caddy figure and requested that staff ask the artists to make the woman golfer slimmer and to change the caddy to a junior golfer. The artists agreed with the suggestions and made the changes. On July 29,1999, the redesigned artwork was presented to the Arts Commission and was approved. The siting and the installation details of the proposed bronze figures have been fully coordinated with both the Golf Course and Clubhouse Architects. The work, which will be installed in an area adjacent to the practice green just south of the clubhouse, will be visible from the clubhouse as well as from the "special events" area. The construction contract for the clubhouse includes provisions for the installation of accent lighting and foundations for the bronze figures. FISCAL IMPACT: Funds in the amount of $128,000 have been allocated in the Municipal Golf Course budget for the integration of artistic elements. EXHIBITS: 1. Resolution No. 2005-337 2. Contract with T.J. Dixon and James Nelson DEPARTMENT CONTACT: Peter Gordon (760:434-2920) www. pg ord@ci. carlsbad . ca. us I 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. 2005337 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A PUBLIC ART CONTRACT WITH ARTISTS T.J. DIXON AND JAMES NELSON WHEREAS, in 1997, following the public art process, an open competition was held and artists T.J. Dixon and James Nelson were selected by the Golf Course Public Art Committee to create and install artwork in the Carlsbad Municipal Golf Course; and WHEREAS, the $128,000 proposal by the artists consists of three life-sized bronze golfers -- a man, a woman, and a junior golfer with a bronze golf bag; and WHEREAS, the siting and the installation details of the proposed bronze figures have been fully coordinated with both the Golf Course and Clubhouse Architects; and WHEREAS, on July 29, 1999, the Arts Commission approved the Dixon/Nelson artwork proposal and recommended the contract be sent to City Council for approval. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad as follows: 1. That the above recitations are true and correct. 2. That the public art contract with T.J. Dixon and James Nelson in the amount of $128,000 to create and install artwork in the Carlsbad Municipal Golf Course is hereby approved. PASSED, APPROVED AND ADOPTED, at a regular meeting of the City Council , 2005, by the of the City of Carlsbad, California, held on the 15th day of following vote, to wit: November AYES: Council Members Lewis, Hall, Kulchin, Packard, Sigafoose NOES: None ABSENT: None ATTEST: AGREEMENT FOR THE FABRICATION AND EXECUTION OF PUBLIC ARTWORK 2005, by the City of Catlsbad, a municipal corporation, hereinafter referre to as .C%h and T.J. DIXON AND JAMES NELSON, hereinafter referred to as the “ARTISTS”. This agreement is entered into on the /d 4-l day of y$~d RECITALS WHEREAS, the CITY is implementing a public art program pursuant to Carlsbad Municipal Code Chapter 238 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 at the Carlsbad Municipal Golf Course, located in the Northwest quadrant of the City; 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: 1. ARTISTS’ OBLIGATIONS (a) The ARTISTS shall, to the best of their artistic ability, fabricate, construct and install the ARTWORK as described in Exhibit “A“. (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 $128,000, to include execution and installation of the ARTWORK as shown in Exhibit “B”), and the desirability of low maintenance. (c) 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. (d) 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. (e) The ARTISTS shall meet regularly with CITY staff to ensure the implementation of the ARTWORK complies with all provisions of this agreement. (9 The ARTISTS shall furnish all supplies, materials and equipment necessary for preparation of the execution of the ARTWORK. Revised 3/20/92/Revised 7/9/98 3 (9) 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. (h) - The ARTISTS shall complete the fabrication and installation of the ARTWORK in substantial conformity with the approved design (Exhibit A). If it is discovered, that revisions to the approved 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. (i) 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. 0) 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. (k) The ARTISTS shall deliver and install the completed ARTWORK at the SITE. (I) 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. (n) 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 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. Revised 3/20/92/Revised 7/9/98 (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 $1 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 (a) 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 'B". This represents payment in full. The total fee is $128,000 which includes sales tax if required, and all travel and transportation expenses of the ARTISTS. (c) A plaque identifying the ARTISTS, the title of the ARTWORK, if any, and the year of the ARTWORKS 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 fulfill 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 In the event of the ARTSTS failure to deliver or perform the services required under this Agreement, CITY may terminate this Agreement for nonperformance by notifying ARTISTS by certified mail 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 ARTISTS. Upon notification of termination, ARTISTS have 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 property. CITY will make a determination of fact based upon the work product delivered to CITY and of the percentage of work that ARTISTS have performed which is usable and of worth to Revised 3/20/92/Revised 7/9/98 CITY in having the Agreement completed. Based upon that finding CITY will determine the final payment of the Agreement. In addition to termination for the above reason, either arty may terminate this Agreement by giving thirty (30) days written notice to the other. In this event and upon request of the CITY, ARTISTS will assemble all work in progress and deliver it to the CITY. At the CITY'S option, the work in progress will become the ClTYS property. ARTISTS will be paid for work performed prior to the termination date; however, the amount will not exceed the total fee payable under this Agreement. CITY will make the final determination as to the portions of the tasks completed and the compensation to be paid. 5. OWNERSHIP OF MATERIAL SUBMITTED All materials submitted related to the ARTWORK or the DESIGN is 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 retain all rights under the Copyright Act of 1976 (17 U.S.C. §IO1 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 1. Warranty of Title The ARTISTS represent and warrant that: (a) ARTISTS. (b) any copyright. The ARTWORK is solely the result of the artistic effort of the The ARTWORK is unique and original and does not infringe upon Revised 3/20/92/Revised 7/9/98 (c) sold elsewhere. The ARTWORK or a duplicate of the ARTWORK has not been 2. Warranty of Quality and Condition THE ARTISTS represents and warrants that: (a) The execution and fabrication of the ARTWORK will be performed in a workmanlike manner. (b) 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). 10. REPAIRS The CITY will have the right to determine when and if repairs and restorations to the ARTWORK shall be made. 1 1. WAIVER The ARTISTS recognize that they may have certain rights arising from the "California Art Preservation Act" (Civil Code 5987 et seq.) or the Visual Artists' Rights Act of 1990" (17 U.S.C.§106A et seq.). Those Acts require that a waiver of their provisions be expressly made in writing and being fully informed, the Artists and their agents, heirs, successors and assigns hereby waive any and all rights they may have under the provisions of the "California Art Preservation Act" (Civil Code $987 et seq.) or the 'Visual Artists' Rights Act of 1990" (17 U.S.C. S106A et seq.). The Artists, their 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 an independent contractor 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. Revised 3/20/92/Revised 7/9/90 3 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 Refon 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 ARTISTS shall comply with the state and federal laws regarding nondiscrimination. 16. COVENANTS AGAINST CONTINGENT FEES The ARTISTS warrant that they have 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 have 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 othetwise recover, the full amount of such 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 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. Revised 3/20/92/Revised 7/9/98 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 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. Revised 3/20/92/Revised 7/9/98 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: /%N (print na%e of ARTIST) B v ATTEST: Attachment(s): Exhibit A Exhibit B EXHIBIT A AGREEMENT BETWEEN CITY OF CARLSBAD AND T.J. DlXON 8 JAMES NELSON Artists will fabricate, construct and install three life-sized bronze golfers and bronze golf bag as approved by the Carlsbad Arts Commission July 29,1999, to be located near the clubhouse as determined by the Artists, Project Manager and Arts Manager. Revised 3/20/92/Revised 7/9/98 EXHIBIT B AGREEMENT BETWEEN CITY OF CARLSBAD AND T.J. DIXON & JAMES NELSON Payment Schedule 1. 25% upon approval of agreement by the City Council and beginning of construction 2. 3. 4. 30% upon approval of the first figure (in clay form) 20% upon approval of the third figure (in clay form) 15% upon'approval of the fourth figure (in clay form) 5. 10% upon final acceptance of completed work (Approval in steps 2 through 5 to be done by the City's Arts Manager) Total $1 28,000 Revised 3/20/92/Revised 7/9/98