HomeMy WebLinkAboutMitten, Peter; 2022-11-22; PSALCA-23034CAPSALCA-23034CA
City Attorney Approved Version 6/12/18 1
AGREEMENT FOR LOAN OF ARTWORK & ARTIST SERVICES
AT THE CARLSBAD SCULPTURE GARDEN
PETER MITTEN
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 Peter Mitten, a Sole Proprietorship, ("Contractor”/”Lender”/”Artist”) (collectively, the “Parties”.)
RECITALS
City requires the professional services of an artist to loan artwork to the City for public display in the City of Carlsbad Sculpture Garden, 2955 Elmwood Street, Carlsbad, CA, 92008. Contractor has the ability to loan the Artwork and is available for various speaking engagements and/or instructional and outreach events, has submitted a proposal to City and has affirmed its willingness and ability to share their artwork and their artwork knowledge.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows:
1. SCOPE OF WORKCity retains Contractor to perform, and Contractor agrees to render, those services (the
“Services”) that are defined in Exhibit “A” and loan of Artwork as specified in “Exhibit B”, attachedand incorporated by this reference in accordance with the terms and conditions set forth in thisAgreement.
2. TERMThis Agreement will be effective for a period of no more than twenty-four (24) months from the
date first above written.
3. COMPENSATION
The total fee payable for the Services to be performed will be five thousand dollars ($5,000). Noother compensation for the Services will be allowed except for items covered by subsequentamendments to this Agreement.
4.STATUS OF CONTRACTORContractor will perform the Services as an independent contractor and in pursuit of Contractor’sindependent calling, and not as an employee of City. Contractor will be under the control of Cityonly as to the results to be accomplished.
5. INDEMNIFICATIONContractor 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 attorneysfees 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.
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6. INSURANCEContractor will obtain and maintain policies of commercial general liability insurance, automobile
liability insurance, a combined policy of workers' compensation, employers liability insurance, andprofessional liability insurance from an insurance company authorized to transact the business ofinsurance in the State of California which has 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 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, in an amount of not less than one million dollars ($1,000,000) each,unless otherwise authorized and approved by the Risk Manager or the City Manager. Contractorwill obtain occurrence coverage, excluding Professional Liability, which will be written as claims-
made coverage. The insurance will be in force during the life of this Agreement and will not becanceled without thirty (30) days prior written notice to the City by certified mail. City will be namedas an additional insured on General Liability which shall provide primary coverage to the City. Thefull limits available to the named insured shall also be available and applicable to the City as anadditional insured. Contractor will furnish certificates of insurance to the Contract Department,with endorsements to City prior to City’s execution of this Agreement.
7.NOTICES
The name of the persons who are authorized to give written notice or to receive written notice onbehalf of City and on behalf of Contractor under this Agreement.
For City For Contractor
Name Richard Schultz Name Peter Mitten
Title Cultural Arts Manager Title Contractor/Artist/Lender
Department Library & Cultural Arts Address 3182 Vista Del Rio
Fallbook, CA 92028
Address
City of Carlsbad
1775 Dove Lane Phone No. 760-525-1563
Carlsbad, CA 92011 Email petermitten@mac.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.
8.CONFLICT OF INTERESTContractor 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 reportinvestments or interests in all categories.
Yes No
9.COMPLIANCE WITH LAWS
Contractor will comply with all applicable local, state and federal laws and regulations prohibitingdiscrimination and harassment and will obtain and maintain a City of Carlsbad Business Licensefor the term of this Agreement.
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10. TERMINATIONCity may terminate this Agreement at any time after a discussion, and written notice to the
Contractor. Contractor may terminate this Agreement any time before the artwork is placed forexhibition, after a discussion, and written notice to the City. City will pay Contractor's costs forservices delivered up to the time of termination, if the services have been delivered in accordance
with the Agreement.
11.CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees it may be subject to civil penalties for the filing offalse claims as set forth in the California False Claims Act, Government Code sections 12650, et
seq., and Carlsbad Municipal Code Sections 3.32.025, et seq. Contractor further acknowledges
that debarment by another jurisdiction is grounds for the City of Carlsbad to terminate thisAgreement.
12.JURISDICTIONS AND VENUEContractor agrees and stipulates that the proper venue and jurisdiction for resolution of any disputesbetween the parties arising out of this Agreement is the State Superior Court, San Diego County,California.
13. ASSIGNMENTContractor may assign neither this Agreement nor any part of it, nor any monies due or to becomedue under it, without the prior written consent of City.
14. AMENDMENTSThis Agreement may be amended by mutual consent of City and Contractor. Any amendment will
be in writing, signed by both parties, with a statement of estimated changes in charges or timeschedule.
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15. AUTHORITYThe 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 authorityto 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 City Manager PETER MITTEN, 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
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EXHIBIT “A”
SCOPE OF SERVICES
Lender will loan artwork to the City to be exhibited in the outdoor City of Carlsbad Sculpture Garden, 2955 Elmwood Street, Carlsbad, CA, 92008 and provide additional services as described below.
1.CITY’S CONTACT INFORMATION
Cultural Arts Manager, Richard Schultz, 442-339-2086, richard.schultz@carlsbadca.gov
Community Arts 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 reaching staff.
2. EXHIBIT LOCATION
City of Carlsbad Sculpture Garden, 2955 Elmwood Street, Carlsbad, CA, 92008
3. ARTWORK LOAN PERIODS
Artwork loan period: Jan. 23, 2023 to Sept. 12, 2024
Sculpture Garden exhibit period: Feb. 7, 2023 to Aug. 30, 2024
Lender agrees to loan the Artwork specified on the checklist attached as Exhibit "B." The
Artwork will remain in the City’s possession during the loan period but may be withdrawn from the exhibition at the City’s sole discretion. City will notify Lender when any Artwork is withdrawn from the exhibit. City and Lender may agree in writing to extend the duration of this Agreement. Acceptance of the Artwork does not imply that the Artwork will be placed or maintained on public display for the Agreement's exhibit duration.
Lender agrees to loan the Artwork specified on the checklist attached as Exhibit "B" of this Agreement to City.
4. TRANSPORTATION AND PACKING
Lender will transport and deliver Artwork for installation at the City's Sculpture Garden and
provide details as to any special requirements for display or installation. City will select and arrange for the artwork installer for the project. Lender certifies that the work to be loaned to the City under the terms and conditions of this Agreement is in good condition and meets the loan
image submitted to the City. The City shall inspect the Artwork and complete and sign the opening condition report for each piece of Artwork, which will constitute the property's condition at the time of the receipt of the Artwork loan. Any discrepancies, losses, or evidence of damage
to the Artwork noted at the time of inspection or at any time while in the City's custody will be reported immediately to the Lender.
Lender will deliver Artwork to the City’s Sculpture Garden by loan start date, as described above. At the end of the exhibition, Lender will be responsible for picking up Artwork within a predetermined date that is agreed upon by both parties and within ten (10) business days after the close of the exhibition, no later than the date described above, unless other written
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arrangements are made between City and Lender. All drop-off and pickup deliveries shall be coordinated with the City's Cultural Arts Manager or Designee.
5.LENDER
CITY reserves the right to audio and/or video record and to reproduce and distribute any
lecture, reading or speaking engagement, and musical concert or musical Performance
performed under 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.
Press Kit Upon execution of Agreement, the Lender 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 Artwork. Images shall be delivered to the City's Cultural Arts Manager or Designee in electronic form immediately upon the Agreement's execution.
Warranty of Title Lender warrants that Lender is either the owner of the Artwork or the authorized agent of the
lawful owner or artist of the Artwork and has the authority to enter into this Agreement and to grant the rights to City as set forth in this Agreement. Lender also warrants that the Artwork(s) is not now or will be subjected to claims of ownership, lien, encumbrance, copyright infringement, or trademark infringement under any state or federal law. Lender shall indemnify the City, its officers, and employees for all damages related to a claim asserting a violation or claim of violation of this Warranty of Title, including reasonable attorney fees and costs.
Artwork Withdrawals
Lender agrees once Artwork is placed for exhibition, it cannot be withdrawn from an exhibition by the Lender for any reason.
Model Release For valuable consideration, receipt of which is hereby acknowledged, I hereby assign all rights to my portrait, picture, videotape and sound recording (collectively “Images”) of me or in which I
may be included intact or in part, composite or distorted in character or form, without restriction, to the City of Carlsbad, a municipal corporation, and I hereby authorize the reproduction, copyright, exhibition, broadcast, cablecast, Internet posting, and/or distribution through any and
all media now or hereafter known of said Images without limitation for purpose of this use.
I waive the right to any fees, royalties or control, now or in the future, and I grant full permission for the use of my Image including, without limitations, name, likeness, performance, voice and biography, for the purpose of publicizing, advertising or promoting any City of Carlsbad matter or program. I hereby relinquish any right that I may have to examine or approve the completed product or products or the advertising copy or printed matter that may be used in conjunction therewith or the use to which it may be applied.
___________(Artist’s Initials)
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6.CITY
Artwork Installation City shall install and exhibit the Artwork. City reserves the right to make the final decision on which items will be included in the exhibition, and the arrangement of the exhibit. City shall take
reasonable steps to preserve the exhibited Artwork against adverse environmental conditions, deterioration, damage or theft.
Artwork Inspection Artwork will be visually inspected upon receipt, and any noticeable damage will be documented
on the shipping receipt. Evidence of damage to Artwork while in the City’s custody will be reported immediately to the Lender. Artwork can be installed into a concrete pad or other identified surface with two to four points of connection. City may elect to display damaged
Artwork if, in City’s sole determination, the displaying of the damaged Artwork will not exacerbate the preexisting damage.
7.REPRODUCTION RIGHTS, PUBLICITY AND PHOTOGRAPHY
Except as limited by this Agreement, Lender retains any or all copyright, licensing, and/or ownership rights to the Artwork available to him/her under state or federal law.
In accordance with Section 5 of the Scope of Work, Lender grants City the right to photograph, telecast, video production, social media coverage or make similar visual reproductions of the
Artwork covered by this Agreement for publicity and advertising purposes and other educational purposes and in catalogues or posters that it distributes.
City agrees to acknowledge the artist on all related print matter, exhibition announcements, publicity releases, invitations, posters, signs, or other promotional or educational materials relating to the Artwork.
8. HEALTH & SAFETY
During the COVID-19 health-related pandemic or other related circumstance, 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 Lender 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 (6) feet. The safety protocols may be modified at any time due to
changing rules, regulations or circumstances.
9. CONTRACTOR FEE / INVOICING
Fee. The total fee payable for the Services to be performed will be five thousand dollars ($5,000) in two payment installments.
Payment Schedule -
1st Payment $4,000 Upon Artwork delivery and completion of installation
2nd Payment $1,000 Upon de-installation and pick-up of Artwork
Invoicing & Payment. Contractor will be responsible for submitting invoices for Payment to the City of Carlsbad's Cultural Arts Manager or Designee, as designated on the schedule above. All invoices shall be detailed to include related activities. Final invoices approval will be completed by the Library & Cultural Arts Director or Designee.
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Carlsbad Sculpture Garden Loan Detail
Artist Name Peter Mitten
Address 3182 Vista Del Rio
Fallbrook CA 92028
Phone number 760-525-1563
Email petermitten@mac.com
Title of Artwork Cloud 7
Media Aluminum, painted steel
Description Overlapping polyhedron shapes with lots of space through the work
Year Made 2010
Credit Line, lent by Peter Mitten
Insurance Value $8,000
Size, Dimensions 36” x 72” x 36”
Overall Weight <150 lbs.
Handling Requirements
(including, but not limited to pick
points if hoisting is required to
mount to attachment point)
Artist will install w/o crane
Installation Details:
Desired anchorage and
attachment specs
(i.e. wedge anchors, pins or epoxy)
Will hammer drill into base if needed
EXHIBIT “B”
CITY OF CARLSBAD SCULPTURE GARDEN ARTWORK LOAN
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( City of
Carlsbad
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City Attorney Approved Version 6/12/18 9
Peter MittenSelected Artwork
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WAIVER REQUEST FORM
FACTORS IN SUPPORT OF REQUEST TO MODIFY INSURANCE REQUIREMENT(S)
Generally, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving the requirement(s).
Requested by: Tonya Rodzach, Community Coordinator, Library & Cultural Arts Dept. November 3, 2022
(Name and Department) (Date)
Proposed modification(s) to the General Liability requirement(s) for ARTIST (Type of insurance) (Name of contract)
Reduce coverage to the amount of: $ . Waive coverage
Other:
FACTOR(S) IN SUPPORT OF MODIFICATION(S)
(check those that apply)
Significance of Contractor: Contractor has previous experience with the City that is important to the efficiency of completing the scope of work and the quality of the work-product. [explain]
Significance of Contractor: Contractor has unique skills and there are few if any alternatives. [explain:
include number of candidates RFP sent to and number responded if applicable]
Contract Amount/Term of Contract: $ . Work will be completed over a period of .
Professional Liability coverage is not available to this contractor or would increase the cost of the contract by
$ [explain].
Other (e.g. explain why exposures are minimal, how exposures are covered in another policy, exposure control mechanisms, and any other information pertinent to your request):
All onsite interviews on this Agreement are speaking engagement and/or instructional outreach events taking place at the Carlsbad Sculpture Garden, located at 2955 Elmwood Street, Carlsbad, 92008. Each event would have no audience and adherence to Health and Safety requirements provided by the city.
Approved by Risk Manager for this contract only: (Signature) (Date)
H:\WORD\Insurance\Admin Order #68.doc
06/15/2006 27
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11/21/2022
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CERTIFICATE OF AUTOMOBILE INSURANCE
~Libcrt:Y, \P Mutual.
IN~UAAN<:i;
THIS IS TO CERTIFY THAT the named insured is, at the date of this certificate, insured by the company
with respect to the automobiles hereinafter described for the types of insurance and respective
coverages hereinafter designated by entry of the limits of liability or a statement that the coverage is in
effect and in accordance with the provisions of the Automobile Policy in use by said company.
This Certificate of Insurance neither affinnatively nor negatively amends, extends or alters the coverage
afforded by the policy.
INSURED'S NAME AND ADDRESS FOR LIEN HOLDER INQUIRIES, CALL OR WRITE
Peter Mitten 1-800-409-0733
34777 Donald St PO BOX 29017
Hemet, CA 92545-3417 PHO EN IX, AZ. 85038
DESCRIPTION OF THE INSURANCE FOR WHICH THIS CERTIFICATE IS ISSUED
Policy Number:A02-268-298297-70 Effective Date: 12/22/2021 Expiration Date: 12/22/2022
PART A PART S PART 0 -DAMAGE TO YOUR AUTO CO'J'ERAGE
COVERAGES: LIABILITY MEDICAL COVERAGE FOR DEDUCTIBLE AMOUNT APPLICABLE TO EACH LOSS
COVERAGE PAYMENTS LOSS CAUSED IN DOLLARS
COVERAGE SY COLLISION
INCLUDED Lou. C:ouf.od by Colis,;or, Lof.f. ~r Th:,,n Lof.f.
Caused by Collision
Limits of 100/300/1 00 NOCOV Yes "'ACV" indicates Ac:ua.l "ACV' indicates Actual
Liability Cash Value ACV Le~s Cash Value ACV Less
$1.000 Deductible $500 Deductible
"Includes Accidental Death Benefit: $ Protection Against Uninsured Motorists. Co,,erag:e -Limit Selected: $100/300
Medic.al
Ex.pen.se
POLICY INCLUDES: 0 BASIC NO FAULT COVERAGE 0 OPTIONAL NO FAULT COVERAGE
DESCRIPTION OF AUTOMOBILES
Year of Model Trade Name Body Type
2018 SBRU UTL4X440
ADDITIONAL INTEREST
Such insurance as is afforded under the
Liability Coverage of the policy shall also
apply, with respect to covered autos, to
each interest hereinafter named, as an
insured; but such inclusion of additional
interest or interests shall not operate to
increase the limit of the companys liability.
Identification or Serial Number
4S4BSANC4J3376577
NAME AND ADDRESS
Toe insurance described herein is in effect on the date of this certificate and shall remain in force until
canceled in accordance with the terms of the policy.
Loss PAYEE and ADDRESS
>5 435 12 10
Chase Auto Finance
PO Box 80015
Atlanta GA 30366-0015
-~~ ~~4:~~
Dated: 11/01/2022 at: 01 :32 PM
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Countersigned
AUTHORIZED REPRESENTATIVE
Libe[tY. Mutual Fire Insurance Company Page 1 of 2
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LOSS PAYEE
~-Libcrt:Y, \P Mu_tual.
IN~UAAN<:i=-
Such insurance as is afforded by the [POiicy for loss of or damage to the automobile is payable, as
interest may appear. to the named insured and the Loss Payee indicated on the previous page in
accordance with the tem1s of the Loss Payable Clause.
Term of Loan: From: 02/01/2021 To: 01/31/2027
LOSS PAYABLE CLAUSE
Loss or damage, under this policy, sh.all be paid as interest may appear to you and the loss payee
shOwn on the front of this certificate. This insurance covering the interest of the loss payee shall not
become invalid because of your fraudulent acts or omissions, unless the loss results from your
conversion. secretion or embezzlement of your covered auto. However, we reserve the right to cancel
the policy as penmitted by policy terms. and the cancellation shall terminate this agreement as to the
loss payee's interest. We will give the same advance notice of cancellation to the loss payee as we give
to the named insured shOwn in the declarations.
When we pay the loss payee, we shall, to the extent of payment, be subrogated to the loss payee's
rights of recovery.
NOTICE TO OTHERS IF CANCELLATION OCCURS
'We" will not cancel "Your'' Policy or reduce the insurance under any of its coverages until at least 1 O
days after we have mailed a written n.otice of such cancellation or reduction to the person(s) named as
addrtional interest on reverse side.
AS1019 (ed 12-89)
>S485 12 10 Page 2012