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HomeMy WebLinkAbout1988-10-04; City Council; Resolution 88-363< -> 1 2 3 4 5 6 7 8 9 10: I1 12 13 14 15 16 17 18 19 I 20 21 22 23 24 25 26 27 28 0 0 RESOLUTION NO. 88-363 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING A CONTRACT BETWEEN THE CITY OF CARLSBAD AND LLOYD HAMROL FOR ARTWORK IN STAGECOACH PARK The City Council of the City of Carlsbad, Califor] does hereby resolve as follows: 1. That certain contract between the City of Car. and Lloyd Hamrol for the public art to be placed in Stageco( Park, a copy of which is attached hereto marked Exhibit "A" made a part hereof, is hereby approved. 2. That the Mayor of the City of Carlsbad is her1 authorized and directed to execute said contract for and on of the City of Carlsbad. 3. That funds in the amount of $75,000 are alreac appropriated in the Civic Arts Fund for this purpose and th, and all unexpended appropriation within the arts fund shall carried forward into the 1989/90 fiscal year. NOW, THEREFORE, BE IT RESOLVED that the City Coun the City of Carlsbad, California, authorizes expenditures f Civic Arts Fund as stated above. //// //// //// //// //// //// //// //// 0 0 1 2 3 4 5 6 7 8 9 10; PASSED, APPROVED AND ADOPTED at a regular meeting 1 City Council of the City of Carlsbad, California, held on thl day of October, 1988 by the following vote, to wit: AYES: Council Members Lewis, Larson, Mamaux and Pettine NOES: None ABSENT : Council Member Kulchin 11 i!L&&i& 2. Q" ALETHA L. RAUTENKRANZ, City Clerlk ( SEAL ) 12 13 14 15 16 17 18 19 I 20 21 22 23 24 25 26 II 27 28 - 2- 0 0 . AGREEMENT FOR STAGECOACH PARK SCULPTURE THIS AGREEMENT, made and entered into as of the day of - , 1988, by and between CITY OF CARLSBAD, a municipa: corporation, hereinafter referred to as "City" and LLOYD HAMROL, hereinafter referred to as "Artist". RECITALS City requires the services of Artist to provide the necessary materials and services for design, fabrication and installation 0. a play sculpture: and Artist has been selected pursuant to procedures adopted b: City to design works of art for placement in public places. NOW, THEREFORE, in consideration of these recitals and thc mutual covenants contained herein, City and Artist agree a! follows: (1) ARTIST'S OBLIGATIONS Artist shall diligently design, fabricate, contruct an( install the public work of art as specified in Exhibit "A" attachec hereto and made a part hereof. (a) Artist, shall submit working drawings to City of Carlsbac for approval. (b) Artist shall attend necessary meetings to develop plan! in cooperation with the Arts Office. (c) Artist is responsible for all site preparation 1 & e 0 construction and installation of the work of art. (d) Artist is responsible for restoring surrounding area to its previous condition. (2) CITY'S OBLIGATIONS The City shall provide copies of City regulations and standards that govern the design and construction of the work of art. City shall pay Artist in accordance with the payment schedule in Exhibit "B". (3) DURATION OF CONTRACT This agreement shall extend until the project is deemed complete by the City. The contract may be extended upon the mutual agreement of the parties, based upon satisfactory performance and the City of Carlsbad's needs. (4) PROGRESS AND COMPLETION The work under this contract will begin within ten (10) days after receipt of notification to proceed by the City and be completed within 150 days of that date. Extensions of time may be granted if requested by the Artist and agreed to in writing by thc City Manager. In consideration of such requests, the City Manager will give allowance for documented and substantiated unforeseeablc and unavoidable delays not caused by a lack of foresight on thc part of the Artist or delays caused by City inaction or othel agencies' lack of timely action. 2 L e e . (5) FEES TO BE PAID TO ARTIST The total fee payable to artist shall be $75,000. No othe compensation for services will be allowed except those item covered by supplemental agreements per paragraph (6), Changes il Work. Payment of fees shall be made within thirty (30) days afte. approval of the payment by the City Manager in accordance with thl payment schedule attached hereto as Exhibit "B". (6) CHANGES IN WORK If, in the course of this contract and design, changes see1 merited by the Artist or the City, and informal consultations witk the other party indicate that a change in the conditions of the contract is warranted, the Artist or the City may request a change in contract. Such changes shall be processed by the City in thc . following manner: A letter outlining the required changes shal: be forwarded to the City or Artist to inform them of the propose( changes along with a statement of estimated changes in charges OL time schedule. After reaching mutual agreement on the proposal, a supplemental agreement shall be prepared by the City and approvec by the City Council. Such supplemental agreement shall not render ineffective or invalidate unaffected portions of the agreement. Changes requiring immediate action by the Artist or City shall be ordered by the City Manager who will inform the Artist of the necessity of such action and follow up with a supplemental agreement covering such work. 3 b 0 0 (7) DESIGN STANDARDS The artist shall prepare the plans and specifications I accordance with the design standards of the City of Carlsbad ar recognized current design practices. Applicable City of Carlsb; standards and regional standards shall be used where appropriate Copies of such standards shall be otained from the City c Carlsbad. (8) COVENANT AGAINST CONTINGENT FEES The Artist warrants that their firm has not employed c retained any company or person, other than a bona fide employe working for the artist to solicit or secure this agreement, an the Artist has not paid or agreed to pay any company or person other than a bona fide employee, any fee, commission, percentage brokerage fee, gift or any other consideration contingent upon, o resulting from, the award or making this agreement. For breach o violation of this warranty, the City shall have the right to annu this agreement without liability, or, in its discretion, to deduc from the agreement price or consideration, or otherwise recover the full amount of such fee, commission, percentage, brokerage fee gift or contingent fee. (9) NON-DISCRIMINATION CLAUSE The Artist shall comply with applicable State and Federal law regarding non-discrimination. 4 I e 0 (10) TERMINATION OF CONTRACT City has and retains the right and privilege of cancelling, suspending or abandoning the execution of all or any work in connection with this agreement for cause, upon written notice to the Artist. The Artist may obtain termination only if the City should substantially fail to perform its responsibilities as provided herein. In the event of termination, all finished or unfinished work relating to the preparation of the work of art paid for by the City shall become the property of the City. (11) DISPUTES If a dispute should arise regarding the performance of worl under this agreement, the following procedure shall be used tc resolve any questions of fact or interpretation not otherwist settled by agreement between parties. Such questions, if the] become identified as a part of a dispute among persons operatin! under the provisions of this contract, shall be reduced to writin! by the Artist or the Arts Manager. A copy of such documentec dispute shall be forwarded to both parties involved along wit1 recommended methods of resolution which would be of benefit to bot parties. The Arts Manager or Artist receiving the 1et.ter shal reply to the letter along with a recommended method of resolutio within ten (10) days. If the resolution thus obtained i unsatisfactory to the aggrieved party, a letter outlining th dispute shall be forwarded to the City Council for their resolutio 5 e e 0 . through the office of the City Manager. The City Council may the opt to consider the directed solution to the problem. In SUC cases, the action of the City Council shall be binding upon the parties involved, although nothing in this procedure shall prohibi the parties seeking remedies available to them at law. (12) SPECIAL CONDITIONS (A) Artist warrants by execution of this contract, that n person or selling agency has been employed or retained to solici or secure this contract upon an agreement or understanding for commission, percentage, brokerage, or contingent fee, exceptir bona fide employees or bona fide established commercial or sellir: agencies maintained by ARTIST for the purposes of securir business. For breach or violation of this warranty, the City shal in addition to other remedies provided by law, have the right t annul this contract without liability, paying only for the valu of work actually performed, or in its discretion to deduct from th contract price or consideracion, or otherwise recover, the ful amount of such commission, percentage, brokerage or contingent fee (B) The death or incapacity of the Artist shall automaticall terminate this contract. Neither the Artist nor his/her estat shall have any further right to perform hereunder. City.shal1 pa the Artist's estate or the Artist the compensation payable for an services rendered prior to such termination not heretofore pai' reduced by the amount of additional costs which shall be incurre by City by reason of such termination. 6 6 e e x (C) Artist shall not make any public information release in connection with services performed under this Agreement without advance written permission of the City. (D) In any printed, visual or recorded matter or in any exhibition or display which describes or is prepared in connectior with, or results in whole or in part from this contract, mentior shall be made of the City of Carlsbad's support and the Artist witk name and copyright date. (E) Laws and Regulations: Artist and all of his agents anc employees shall observe and comply with all prevailing federal anc state laws, which in any way affect conduct or work of this contract. (F) The Artist may, as part of this contract, be required b] the City, to discuss his/her work with the general public and/ol press/ media representatives in special meetings scheduled for thi purpose. (G) Artist warrants to City that the work of art, as designe' and installed, will be a unique and original artwork. Artist wil not reproduce the work of art in a similar scale or configuratio at any other place, however, Artist may use, in other works of ar created by him, the same or similar shapes which appear in the wor of art provided if such same or similar shapes are not.identica in arrangement, scale or configuration to the work of art. (H) Title to the work of art (together with all drawings plans, photographs and models relating to the work of art an delivered or presented to City will vest in City upon acceptanc 7 * 0 a of the work. (I) City will have the right to print and publis photographic or other two-dimensional likenesses of the work of ar. in any advertising, publicity or other materials (including, bu not limited to, television and radio announcements) relating to th work of art, and the City and the activities of any of sai entities. In connection with reproduction, printing or publicatio by either party, that party will attempt to arrange for appropriatr credits identifying Artist and stating the location of the work 0: art and the ownership thereof by City. (J) To the extent practical, Artist shall be informed an( consulted in regard to all repairs and restoration to the worl subsequent to its installation. The Artist shall be allowed tc recommend restorative techniques and materials and he shall be given the opportunity to perform any such repairs and restoration: for an appropriate fee. (13) STATUS OF THE ARTIST The 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 and the personnel assigned to the project, but shall consult with the City as provided for in the request for proposal. The Artist is an independent contractor of the City. The 8 e 0 \ payment made to the Artist pursuant to this contract shall be th full and complete compensation to which the Artist is entitle pursuant to this contract. The City shall not make any federal 0 state tax withholdings on behalf of the Artist. The City shall no be required to pay any workers' compensation insurance on behal of the Artist. The Artist agrees to indemnify the City for an tax, retirement contribution, social security, overtime payment workers' compensation payment which the City may be required t make on behalf of Artist or any employee of Artist for work don under this agreement. The Artist shall be aware of the requirements of th Immigration Reform and Control Act of 1986 (8 USC Sec. 1101 - 1525 and shall comply with those requirements,, including, but no limited to, verifying the eligibility for employment of all agents employees, subcontractors and consultants that are included in thi agreement. (14) CONFORMITY TO LEGAL REQUIREMENTS The Artist shall cause all drawings and specifications t' conform to all applicable requirements of law: Federal, State an local. Artist shall provide all necessary supporting documents to be filed with any agencies whose approval is necessar.y. - The City will provide copies of the approved plans tc any other agencies. 9 0 m (15) OWNERSHIP OF DOCUMENTS All plans, studies, sketches, drawings, reports an( specifications as herein required are the property of the City whether the work for which they are made be executed or not. I. the event this contract is terminated, all documents, plans, specifications, drawings, reports and studies shall be delivere( forthwith to the City. Artist shall have the right to make ont copy of the plans for his/her records. (16) HOLD HARMLESS AGREEMENT The City, its agents, officers and employees shall not bc liable for any claims, liabilities, penalties, fines or any damagc to goods, properties or effects of any person whatever, nor for personal injuries or death caused by, or resulting from, or claimec to have been caused by, or resulting from, any act or omission of Artist or Artist's agents, employees or representatives. Artist agrees to defend, indemnify and save free and harmless the City anc its authorized agents, officers, and employees against any of thc foregoing liabilities or claims of any kind and any cost and expense that is incurred by the City on account of any of the foregoing liabilities, including liabilities or claims by reason of alleged defects in any plans and specifications, unless the liability or claim is due, or arises out of, solely to the City's negligence. 10 0 0 (17) ASSIGNMENT OF CONTRACT The Artist shall not assign this contract or any part thereo or any monies due thereunder without the prior written consent o the City. (18) SUBCONTRACTING If the Artist shall subcontract any of the work to b performed under this contract by the Artist, Artist shall be full responsible to the City for the acts and omissions of Artist' subcontractor, as Artist is for the acts and omissions of person directly employed by Artist. Nothing contained in this contrac shall create any contractual relationship between any subcontracto of Artist and the City. The Artist shall bind every subcontracto and every subcontractor of a subcontractor by the terms of thi: contract applicable to Artist's work unless specifically noted tc the contrary in the subcontract in question approved in writing b; the City. (19) PROHIBITED INTEREST No official of the City who is authorized in such capacity 01 behalf of the City to negotiate, make, accept, or approve, or takc part in negotiating, making, accepting, or approving of any design architectural, engineering inspection, construction or materia: supply contractor, or any subcontractor in connection with tht construction of the project, shall become directly or indirectl! interested personally in this contract or in any part thereof. Nc 11 0 e officer, employee, architect, attorney, engineer or inspector of or for the City who is authorized in such capacity and on behalf of the City to exercise any executive, supervisory, or othel similar functions in connection with the performance of thi: contract shall become directly or indirectly interested personal11 in this contract or any part thereof. (20) 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 such verbal agreement or conversation entitle the Artist to any additional payment whatsoever under the terms of this contract. (21) SUCCESSORS OR ASSIGNS Subject to the provisions of paragraph (16), Hold Harmless Agreement, all terms, conditions and provisions hereof shall ensure to and shall bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors and assigns. (22) EFFECTIVE DATE This agreement shall be effective on and from the day and year first above written. 12 0 0 (23) INSURANCE (a) The Artist shall obtain and maintain a policy o liability insurance from an insurance company authorized to be i business in the State of California, as required by the City's Ris Manager. This insurance shall be in force during the life of thi agreement and shall not be cancelled without ten (10) days pric written notice to the City. IN WITNESS WHEREOF, we have hereunto set our hands and seals CITY OF CARLSBAD BY City Manager ATTEST : Title APPROVED AS TO FORM: City Clerk Assistant City Attorney Attachments: Exhibit "A" Exhibit- "B" 13 0 e EXHIBIT "A" Scope of Work A. Design Phase The ARTIST shall provide all drawings which are necessary to describe the design of the artwork. The artwork consists of fabrication and its installation at the location indicated in the ARTIST'S proposal and maquette. B. Construction Phase The ARTIST shall be responsiblt for all working drawings to be approved by the CITY for construction of the artwork. The ARTIST shall be responsible fo the selection of all materials to be included in the artwork. The ARTIST shall notify the Arts Office and Parks and Recreation Department concerning all aspects of the progress of the artwork and any non-conformity with approved plans and design. The ARTIST shall have control of and be responsible for construction means, methods, techniques, sequences of procedure5 and for safety precautions and programs in connection with the construction of the artwork and for the acts or omissions of an] contractor, subcontractors or any other persons performing any c the tasks required to construct the artwork or for the failure ( any of them to carry out the provisions of their contracts, - C. Artist Talk The ARTIST shall be available at som time mutually agreeable to give one public presentation regardi his artwork. Schedule The ARTIST agrees to complete the artwork by March 1, 1989. Any change in schedule must be mutually agreed upon ARTIST and CITY. 2 t 0 e Approval by the CITY The design of the artwork shall be reviewed and approved in writing by the CITY for conformance with health, safety and building codes prior to beginning of any constructio: of the artwork. Any major modifications to the artwork shall also be subject to prior written approval of the CITY. During the installation of the artwork, it shall be inspected at periodic intervals by the CITY to assure compliance with health safety and building codes as shown on the approved drawings. A- work done that is deemed by the CITY not to be in conformance with health, safety and building codes as shown on the approved dZ9-w i 11 he r~rnnv~il nr renla,-oii Budget The total cost of the artwork, inclusive of the ARTIST'S fee and expenses shall not exceed a projected budget 0: $75,000 without prior approval of the CITY. -2- * T 0 ,e %. 1 EXHIBIT "B' STAGECOACH PARK SCULPTURE PAYMENT SCHEDULE A. 6.6 % - Upon signature of contract $ 5r000.01 B. 20% - Upon acceptance of working drawings $15,000.01 C. 20% - Upon completion of 50% of the construction D. 20% - Upon completion of 75% of the construction $15 f 000.0~ $15,000.0 E. 33.4% - Upon acceptance of completed artwork by City of Carlsbad $25,000.0