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HomeMy WebLinkAboutMary Carter Taub LLC; 2022-11-02; PSALCA-23028CAPSALCA-23028CA City Attorney Approved Version 8/2/2022 1 AGREEMENT FOR CONSULTING SERVICES OF PUBLIC ARTWORK FOR CAPITAL IMPROVEMENT PROJECT FIRE STATION 2 MARY CARTER TAUB, LLC THIS AGREEMENT is made and entered into as of the _____ day of ____________________, 2022, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and Mary Carter Taub, LLC, a Limited Liability Corporation, ("Contractor", “Artist”) (collectively, the “Parties”.) RECITALS A. City requires the professional services of the Artist, also known as the Contractor, who created the Artwork design for Fire Station 2 and will provide input during the fabrication and installation phase of the project located at the intersection of El Camino Real and Arenal Road in Carlsbad, CA. B. Contractor has the necessary experience providing professional services to affirm the glass treatment fabrication and installation. C. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement’s terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of one (1) year from the date first above written. The City Manager may amend the Agreement to extend it for two (2) additional one (1) year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be not to exceed fourteen thousand one hundred dollars ($14,100). The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". DocuSign Envelope ID: 15909C77-6F16-4C77-84B5-947FC0531C01 2nd November PSALCA-23028CA City Attorney Approved Version 8/2/2022 2 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City’s election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney’s fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City’s self-administered workers’ compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor’s agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California’s List of Approved Surplus Line Insurers (LASLI) with a rating DocuSign Envelope ID: 15909C77-6F16-4C77-84B5-947FC0531C01 PSALCA-23028CA City Attorney Approved Version 8/2/2022 3 in the latest Best’s Key Rating Guide of at least “A:X”; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an “occurrence” basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $2,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor’s profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. DocuSign Envelope ID: 15909C77-6F16-4C77-84B5-947FC0531C01 PSALCA-23028CA City Attorney Approved Version 8/2/2022 4 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City For Contractor Name Richard Schultz Name Mary Carter Taub, LLC Title Cultural Arts Manager Title Contractor/Artist Department Library & Cultural Arts Address 131 Kiley Street City of Carlsbad Chapel Hill, NC 27516 Address 1775 Dove Lane Phone No. 415-359-3798 Carlsbad, CA 92011 Email mary@marycartertaub.com Phone No. 442-339-2086 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST Contractor 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 Contractor shall report investments or interests in all categories. Yes No DocuSign Envelope ID: 15909C77-6F16-4C77-84B5-947FC0531C01 □ ■ PSALCA-23028CA City Attorney Approved Version 8/2/2022 5 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor 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 Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor 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. City may terminate this Agreement by tendering thirty (30) days written notice to Contractor. Contractor may terminate this Agreement by tendering ____ days written notice to City. In the event of termination of this Agreement by either party and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that DocuSign Envelope ID: 15909C77-6F16-4C77-84B5-947FC0531C01 PSALCA-23028CA City Attorney Approved Version 8/2/2022 6 Contractor 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, City will 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 the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. \\\ \\\ \\\ \\\ \\\ DocuSign Envelope ID: 15909C77-6F16-4C77-84B5-947FC0531C01 PSALCA-23028CA City Attorney Approved Version 8/2/2022 7 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California By: By: (sign here) SUZANNE SMITHSON Library & Cultural Arts Director As authorized by the City Manager MARY CARTER TAUB, Contractor/Artist (print name/title) ATTEST: By: (sign here) For FAVIOLA MEDINA City Clerk Services Manager (print name/title) 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 Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: For CINDIE K. McMAHON, City Attorney BY: _____________________________ Deputy / Assistant City Attorney DocuSign Envelope ID: 15909C77-6F16-4C77-84B5-947FC0531C01 PSALCA-23028CA City Attorney Approved Version 8/2/2022 8 EXHIBIT “A” SCOPE OF SERVICES 1. EXECUTIVE SUMMARY The Artist's final design concept for the City's new Fire Station 2 was selected, refined, and finalized with input from community and City stakeholders and cultural arts professionals and approved by Arts Commissioners and the City Council. The Artwork focuses on a glass treatment on Fire Station 2's garage bay doors and tower. The Artwork aligns with the spirit of the Artist's vision and inspiration of the local surroundings of Carlsbad and the integrity of Fire Station 2's architectural elements. Fire Station 2 is located at El Camino Real and Arenal Road intersection in south Carlsbad. Within the next phase of the City’s Arts in Public Places Program, the Artist will consult with City staff and the Artwork fabricators and installers to ensure the highest quality of the Final Artwork’s craftsmanship and the integrity of the workmanship of the installation. 2. CONTACT INFORMATION Contractor/Artist: Mary Carter Taub, 415-359-3798, marycartertaub.com City: Cultural Arts Manager Richard Schultz, 442-339-2086, richard.schultz@carlsbadca.gov Public Art Coordinator Tonya Rodzach, 442-245-0502, tonya.rodzach@carlsbadca.gov Cultural Arts General Phone, 442-339-2090 * Email may be the initial preferred method of contacting City staff. 3. BACKGROUND The reconstruction of Fire Station 2 is part of Capital Improvement Program Project No. 4060, approved by the City Council in April 2020. Carlsbad Municipal Code Section 2.18.110 – Appropriations for Arts requires all construction projects to include an amount for public art equal to at least one percent of the total cost of all construction projects. On July 6, 2021, City staff published a request for proposals asking artist and artist teams to respond with a design concept for Fire Station 2 that incorporated an illumination feature that enhances the architectural elements and/or treatments to the glass panels or exterior facades. This request, which aligns with a national public art trend, was crafted to encourage a distinctive design for this prominent site that would meet Carlsbad’s aesthetic and material standards for public art. On Nov. 10, 2021, four artists made presentations on their initial design concepts to the city’s Public Art Advisory Subcommittee, and the subcommittee recommended one artist, artist Mary Carter Taub, to the Carlsbad Arts Commission. On Dec. 2, 2021, the Carlsbad Arts Commission received a presentation from the selected artist who shared her initial design concepts for the project. The commission approved the Public Art Advisory Subcommittee’s recommendation of Taub. DocuSign Envelope ID: 15909C77-6F16-4C77-84B5-947FC0531C01 PSALCA-23028CA City Attorney Approved Version 8/2/2022 9 On May 5, 2022, the final design concept for public art at Fire Station 2 (Attachment 1) was presented to the Carlsbad Arts Commission. The commissioners voted to confirm their support of the final design concept by artist Mary Carter Taub and reported their decision in a memo to the City Council. On July 26, 2022, the Artist’s Artwork was shared with City Council and they unanimously approved the Artwork design and moved the project forward for completion (Resolution 2022-197,) which includes the fabrication and installation of the Artwork. As part of the fabrication phase of the project, the Artist will continue to meet with key project team members within the timelines established for the completion of this public art project. Ensuring the Artwork will be of the highest aesthetic and artistic quality and fulfill the project goals. 4. CONTRACTOR’S SERVICES Contractor shall provide advice and guidance on public art to team members on the Fire Station 2 project. Contractor's recommendation shall be aligned with the terms, covenants, and conditions of the City of Carlsbad's Art in Public Places Program and all applicable federal, state, and local laws, rules and regulations. Contractor and City will plan for an in-person consultation, which includes travel, to support the Artwork's fabrication process and color check with the Contractor's preferred fabricator. Once fabrication is complete, Contractor and City will plan for up to two in-person consultations, which include travel, to support the installation of the Artwork onsite at Fire Station 2. Each of these anticipated in-person consultation(s) will need prior approval by the Cultural Arts Manager or his designee. Contractor will provide weekly written updates of all activities, including progress reports, meetings, and phone calls with the project team. Contractor will deliver a written report in electronic form via email to the Cultural Arts Manager and his designee, detailing recommended steps aligned with the project's goals, assuring the successful outcome for the Artwork. 5. PRESERVATION AND REPAIRS OF ARTWORK 5.1. Alterations or Damage to the Artwork. City agrees not to intentionally destroy, alter, mutilate, or deface the fabricated Artwork. 5.2. Repairs and Restorations. City has the exclusive right to determine whether repairs and/or restorations to the Artwork are required to be made. City may reach out to the Artist and/or the Artwork fabricators in writing to consult on behalf of the restoration. 5.3. Artwork Cease to be Reparable. If in the sole opinion of the City, the Artwork has been destroyed or is not repairable, the City may negotiate an alternative solution for the replacement or disposition of the Artwork in conjunction with the Artist and/or the Artwork fabricators as applicable. 5.4. Limitation of Liability. Neither Artist or the Artwork fabricators nor City will be responsible for damage to or destruction of the Artwork arising from the acts of third parties or caused by the elements, the atmosphere or other acts of nature, or caused by aging. The provisions of Sections 5 – 8 will survive the expiration or early termination of this Agreement. 6. 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 DocuSign Envelope ID: 15909C77-6F16-4C77-84B5-947FC0531C01 PSALCA-23028CA City Attorney Approved Version 8/2/2022 10 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 of the 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 of the 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. In the event of destruction, distortion, mutilation, or other modification of the Artwork without Artist’s consent in a manner that is prejudicial to the Artist’s reputation, Artist retains the right to disclaim authorship of the Artwork after the project is completed and accepted by the City. 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. 7. SALE OR DONATION OR DEACCESSION OF THE ARTWORK BY THE CITY The City shall have the right to sell, donate or de-access the Artwork any time after acceptance of the Artwork established by City guidelines. Before exercising this right, the City, by written notice to the Artist at Artist’s last known address, agrees to give the Artist the opportunity to purchase the Artwork for the greater of the market value as determined by a qualified appraiser or the amount of any offer that the City has received for the purchase of the Artwork, plus all costs associated with the removal of the Artwork from the Site, clean-up of the Site and delivery to the Artist. Artist shall have thirty (30) days from the date of the City’s written notice to exercise the option to purchase the Artwork. If Artist exercises this option and then rescinds the option to purchase, Artist shall be liable for all losses the City sustained as a result of the rescission to purchase the Artwork. \\\ \\\ \\\ \\\ \\\ DocuSign Envelope ID: 15909C77-6F16-4C77-84B5-947FC0531C01 PSALCA-23028CA City Attorney Approved Version 8/2/2022 11 8. 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 Artwork or the Artwork Design 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 for the 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.” 9. STATUS OF THE ARTIST 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. 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. 11. 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 Artist to any additional payment whatsoever under the terms of this contract. 12. COMMUNITY OUTREACH & ENGAGEMENT 12.1 Community Engagement. Artist will be available to participate in in-person or virtual on- camera or audio interviews and/or discussion of the Artwork. All community engagement workshops will be coordinated in advance with the City's Cultural Arts Manager or designee and shall constitute “work made for hire” under the United States Copyright Act of 1976 [17U.S.C. §§ 101, et seq.] and any other applicable law. DocuSign Envelope ID: 15909C77-6F16-4C77-84B5-947FC0531C01 PSALCA-23028CA City Attorney Approved Version 8/2/2022 12 12.2 Recording. City reserves the right to audio and/or video record and to reproduce and distribute any workshop or speaking engagement this Agreement as virtual programming. City may retain the recording in its files, may replay the recordings for its employees and the public, including the right to post, replay, or broadcast the recordings on the City’s YouTube channel, the City’s cable channel, the City’s Library Facebook Live account, and other similar City internet-based platforms, and may make the recording available for non-circulation use at its library facilities. City shall not sell the recording. City shall provide a copy of the recording to the Artist, upon the Artist’s request. 12.3 Press Kit. Upon execution of Agreement, the Contractor agrees to provide a high- resolution image of self (headshot preferred) and written biography (up to 300 words) as well as four (4) to five (5) high resolution images of Artworks being shown in the City. Images shall be delivered to the City's Cultural Arts Manager or designee in electronic form immediately upon the Agreement's execution. 12.4 A Plaque identifying the Artist. 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. The Artist name, title of the Artwork, and supplemental information and photographs of final installed Artwork will also be listed on the City’s interactive mapping system of the City’s permanent public art collection and listed throughout City’s public art webpages. 13. CITY PROVIDES City will provide Artist with all necessary construction documents, scheduling notices, meeting notes, and announcements related to the Fire Station 2 Artwork’s fabrication and installation. Additional resources will be provided upon request in writing and within the project’s scope. City will notify the Artist within 48 hours in writing of any upcoming virtual activities (i.e., meetings, conference calls) City will notify the Artist within 48 hours in writing of any changes to planned, scheduled activities, if possible. The City will request travel by the Artist to provide guidance during the fabrication and installation phases of the project. For all anticipated travel needed by Artist to be onsite in California, the City will request in writing via email at least two weeks before travel dates. HEALTH & SAFETY During the COVID-19 health-related pandemic, all activities occurring at City facilities, all Parties must adhere to the guidance from the state, county, and local authorities on health and safety protocols. City staff will inform Contractor what the current guidelines are prior to their arrival and entering any City facility. Safety protocols may include, but are not limited to, hand washing, temperature testing, requiring face covering, maintaining physical distancing of six feet. The safety protocols may be modified at any time due to changing rules, regulations, or circumstances. 14. TIMEFRAME Fire Station 2 construction will be completed by the end of September 2022, with the firefighters moving into the building the second week of October 2022. The Artist’s work with consulting the Fire Station 2’s project team related to the approved Artwork is estimated at one (1) year from the execution of this agreement. Any extension will result in an amendment to this agreement in increments of one year or parts thereof, in accordance with Section 3 of the Agreement. DocuSign Envelope ID: 15909C77-6F16-4C77-84B5-947FC0531C01 PSALCA-23028CA City Attorney Approved Version 8/2/2022 13 15. PAYMENT SCHEDULE Includes all costs related to this Agreement, including without limitation materials, insurance, sales tax if required, labor, equipment and all travel, and all other expenses of the Artist. Contract fee for scheduled workatActivity First payment $2,000 Upon execution of the Agreement, with an invoice sent to the Cultural Arts Manager or his designee. Cost to support business license and insurance requirements. Initial payment supports consultation of seven (7) virtual meeting hours @ $125 per hour. Contractor to detail consultant hours on final invoice. Second payment NTE $3,200 Pre-production: In-person consultation and travel to support the Artwork’s fabrication process and color check with the Artist’s preferred fabricator and notification to the Cultural Arts Manager or his designee. Final payment NTE $3,200 Production/Installation: In-person consultation and travel to support the installation process of the Fire Station 2’s garage bay and tower Artwork and notification to the Cultural Arts Manager or his designee. Contingency NTE $5,700 NTE $3,200 If project installation requires a second in-person consultation visit then notification will be coordinated with Cultural Arts Manager or his designee. NTE $2,500 – Billed at rate of $125/hour Hours agreed upon prior to activity in writing, minimum of 48 hours with Cultural Arts Manager or designee. Any additional services requested by the City for unforeseen tasks related to the fabrication and installation this public Artwork; such as, as needed on-site color check or correction, and any additional required consultation with the subconsultants for the fabrication and installation. These services are to ensure the Artwork will be of the highest aesthetic and artistic quality and fulfill the overall goals of this public art project. Contractor to provide timely invoices at completion of each request or task within five business days. Total Amount NTE $14,100.00 Invoicing & Payment Contractor's invoice will be submitted for payment to the City of Carlsbad's Cultural Arts Manager or his designee, upon completion of work. All invoices shall be detailed to include related activities such as meeting title, location, subject matter, duration, and outcome. Final invoice approval will be completed by the Library & Cultural Arts Director or her designee. Payment will be issued within 30 days net. DocuSign Envelope ID: 15909C77-6F16-4C77-84B5-947FC0531C01 PSALCA-23028CA City Attorney Approved Version 8/2/2022 14 ATTACHMENT 1 IMAGE – FINAL PUBLIC ART CONCEPT by Artist Mary Carter Taub Rendering of Artwork in Daytime Rendering of Artwork at Night DocuSign Envelope ID: 15909C77-6F16-4C77-84B5-947FC0531C01 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THISCERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED?(Mandatory in NH) DESCRIPTION OF OPERATIONS belowIf yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIREDAUTOS ONLY 6/9/2022 High & Rubish InsurancePO Box 3040Chapel Hill NC 27515-3040 Laura Pope 919-913-1144 919-913-1155 Laura@highandrubish.com License#: 1000008811 Sentinel Insurance Co 11000 MARYCAR-01 Mary Carter Taub, LLC131 Kiley StChapel Hill NC 27516 1746879479 A X 1,000,000 X 1,000,000 10,000 1,000,000 2,000,000 X Y 22SBAUQ3956 5/1/2022 5/1/2023 2,000,000 A 1,000,000 X X Y 22SBAUQ3956 5/1/2022 5/1/2023 The City of Carlsbad, (or if applicable – the City of Carlsbad Redevelopment Agency, Housing Authority or Carlsbad Municipal Water District) its officials,employees and volunteers must be named as an additional insured with respect to liability arising out of activities performed by or on behalf of the NamedInsured (General Liability only). The full limits available to the named insured shall also be available and applicable to the City as an additional insured.Coverage under this policy shall be primary insurance as respects the City, its officials, employees andvolunteers. This policy will not be canceled, materially changed nor the amount of coverage reduced until thirty (30) days after receipt of written notice ofcancellation or reduction in coverage by the City of Carlsbad, California. City of Carlsbad1635 Faraday AvenueCarlsbad CA 92008 DocuSign Envelope ID: 15909C77-6F16-4C77-84B5-947FC0531C01 ~ r ACORD® ~ I ~ □ □ ~ ~ R □ □ ~ ~ ~ ~ ~ ~ ~ ~ H I I I I I □ I POLICY NUMBER:COMMERCIAL GENERAL LIABILITY CG 20 10 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s)Location(s) Of Covered Operations Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II – Who Is An Insured B.is amended to With respect to the insurance afforded to these include as an additional insured the person(s) or additional insureds, the following additional organization(s) shown in the Schedule, but only with exclusions apply: respect to liability for "bodily injury", "property This insurance does not apply to "bodily injury" or damage" or "personal and advertising injury""property damage" occurring after:caused, in whole or in part, by:1.All work, including materials, parts or equipment1.Your acts or omissions; or furnished in connection with such work, on the 2.The acts or omissions of those acting on your project (other than service, maintenance or behalf;repairs) to be performed by or on behalf of the additional insured(s) at the location of the in the performance of your ongoing operations for covered operations has been completed; orthe additional insured(s) at the location(s) 2.designated above.That portion of "your work" out of which the injury or damage arises has been put to its intended However: use by any person or organization other than 1.The insurance afforded to such additional another contractor or subcontractor engaged in insured only applies to the extent permitted by performing operations for a principal as a part of law; and the same project. 2.If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. CG 20 10 04 13 Page 1 of 2© Insurance Services Office, Inc., 2012 22 SBA UQ3956 The City of Carlsbad, California Locations with a written contract DocuSign Envelope ID: 15909C77-6F16-4C77-84B5-947FC0531C01 C.With respect to the insurance afforded to these 2.Available under the applicable Limits of additional insureds,the following is added to Insurance shown in the Declarations; Section III –Limits Of Insurance:whichever is less. If coverage provided to the additional insured is This endorsement shall not increase the applicable required by a contract or agreement,the most we Limits of Insurance shown in the Declarations.will pay on behalf of the additional insured is the amount of insurance: 1.Required by the contract or agreement; or Page 2 of 2 CG 20 10 04 13© Insurance Services Office, Inc.,2012 DocuSign Envelope ID: 15909C77-6F16-4C77-84B5-947FC0531C01 CERTIFICATE OF EXEMPTION WORKERS' COMPENSATION/EMPLOYERS' LIABILITY INSURANCE 1,_,Vl_A_l2--_\(_�_A_�_11:;::"_-_,..,_--_,,,_f¾:v __ B __ �ru.nthe ___ a_w_AJ_f::_fZ--_._/�A_i2-_1l_1 _>_T ___ _ [insert name] [title] of M A fZ .. -'l' Cf\ r...-T£ fZ... 17-\Ve, LL � I hereby certify that fll A-12, Y -llkt'--l'E. (L ·T70J B LL c_ [ name of company] [ name of company] has no employees and is not required by law to maintain workers' compensation or employers' liability insurance. Should MA r2.. 'I.' Cf\yL-ft::: fL r A-v'B LL L [ name of company] employ any person during the term of the Agreement with the City of Carlsbad for /�"j\lVC•(Z... f:. f'ofL. fl 11.-£: S�D 1'-' ·z..1/V C ,Arl--L->F,,A-o -CA [ description of project or work that is being contracted] then workers' compensation and employers' liability insurance will be obtained. [Name] [Title and name of company or corporation] DocuSign Envelope ID: 15909C77-6F16-4C77-84B5-947FC0531C01