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HomeMy Public PortalAboutAgreement_2013_Lost Men Productions California, IncAGREEMENT FOR THE COMMISSION OF ARTWORK By and Between THE CITY OF TEMPLE CITY, A municipal corporation and LOST MEN PRODUCTIONS CALIFORNIA, INC. AGREEMENT FOR THE COMMISSION OF ARTWORK This Agreement for the Commission of Artwork ("Agreement") is made this day of , 2013 by and between the City of Temple City, a California charter city, ("City") and Lost Men Productions California Inc. a California corporation, ("Artist'). Artist and City may be collectively referred to hereinafter as the "Parties." RECITALS A. The City desires to commission artwork, including two life-sized bronze sculptural elements, for integration into the Rosemead Boulevard Safety Enhancement and Beautification Project. B. The City adopted Ordinance No. 12-960 which allows for the procurement, commission, and installation of public artworks in Temple City. C. The Artist was selected and approved by the City's Public Arts Commission to provide final design concepts and fabricate decorative pavers and word art for the Rosemead Boulevard Safety Enhancement and Beautification Project. D. The Artist represents that he or she is qualified and available to provide such services under this Agreement. OPERATIVE PROVISIONS NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties promise, agree, and covenant as follows: SECTION 1. SCOPE OF WORK Pursuant to the terms and conditions of this Agreement, Artist is hereby retained to perform all services and furnish all supplies, materials and equipment necessary for the design, execution, fabrication, transportation, delivery and to provide technical oversight during installation of the Artwork described more particularly in the Scope of Work attached as Attachment "A" to this Agreement ("Artwork"). The completed Artwork shall substantially conform to the plans shown on Attachment "A." SECTION 2. COMPENSATION The City shall pay to Artist an amount not to exceed Fifty Thousand Dollars ($50,000.00) as full compensation for all services to be performed and materials to be furnished by Artist under this Agreement. This compensation will be paid in accordance with the Schedule of Payments attached as Attachment "B" to this Agreement. SECTION 3, EXECUTION OF ARTWORK (a) Artist shall complete the Artwork in accordance with the Schedule of Performance attached as Attachment "C" to this Agreement. The schedule may be modified in writing by mutual agreement of the City and Artist. (b) City shall have the right to review the Artwork at reasonable times during the execution thereof. (c) Artist shall present to City in writing for further review and approval any significant changes to the Artwork differing from or in substantive nonconformity with the plans shown in Attachment "A." A significant change is any modification in the scope, design, color, size, material, or texture of the Artwork which affects installation, scheduling, site preparation, maintenance, or concept of the Artwork as shown in Attachment "A." SECTION 4. ACCEPTANCE OF THE ARTWORK (a) If the Artist installs the Artwork, the Artist shall receive written Notice of Completion by the City for the Artwork within 15 days after complete installation of Artwork at the site. Any changes or alterations requested by the City shall be conveyed in writing to the Artist within the 15 -day period after completion. (b) If the City installs the Artwork, the Artist shall receive written Notice of Completion by the City for the Artwork within 15 days after the Artist has delivered the Artwork to the City with directions on how the Artist would like, but not expect, the Artwork to be installed. Any changes or alterations requested by the City shall be conveyed in writing to the Artist within the 15 -day period after delivery of the Artwork and directions. (c) The Artist agrees to address any repairs within 30 workdays after receipt of the Notice of Completion from the City. City will be deemed to have accepted the Artwork after the City has mailed a Notice of Completion to the Artist and the Artist has addressed all of the City's concerns. SECTION 5. MAINTENANCE AND PRESERVATION OF THE ARTWORK The City shall bear the sole responsibility for and have full discretion in how the Artwork is maintained and preserved after it is accepted by the City. Nevertheless, the Artist shall assist the project art consultant in the development of a final written maintenance manual for the Artwork. This manual shall include recommendations for a schedule of maintenance, specifications of cleaning techniques, and cleaning materials and their sources for all art objects. SECTION 6, RISK Or LOSS (a) If the Artist installs the Artwork, the risk of loss or damage to the Artwork shall be borne by Artist until the Artwork is fully installed, and the Artist shall take such measures as necessary to protect the Artwork from loss or damage until said time. (b) If the City installs the Artwork, the risk of loss or damage to the Artwork shall be borne by Artist until the Artist has delivered the Artwork to the City with directions on how the Artist would like, but not expect, the Artwork to be installed, and the Artist shall take such measures as necessary to protect the Artwork from loss or damage until said time. SECTION 7. WARRANTIES (a) Warranties of Title. Artist represents and warrants that: (i) the Artwork is solely the result of Artist's artistic effort; (ii) except as otherwise disclosed in writing to City, the Artwork is unique and original and does not infringe upon any copyright; (iii) the Artwork, or a duplicate thereof, has not been accepted for sale elsewhere; and (iv) the Artwork is free and clear of any liens from any source whatsoever. (b) Warranties of Quality and Condition. Artist represents and warrants that: (i) the execution of the Artwork will be performed in a workmanlike manner; (ii) the Artwork, as fabricated and installed, will be free of defects in material and workmanship, including any defects consisting of "inherent vice" or qualities which cause or accelerate deterioration of the Artwork; and (iii) reasonable maintenance of the Artwork will not require procedures substantially exceeding those described in the maintenance recommendations to be submitted by Artist to City hereunder. The warranties described in this Section shall survive for a period of one year after final acceptance of the Artwork. City shall give reasonably prompt notice to Artist of any observed breach. Artist shall, at City's request and at no cost to City, reasonably and promptly cure the breach of any warranty which is curable by Artist and which cure is consistent with professional conservation standards (including, e.g., cure by means of repair or refabrication of the Artwork). SECTION 8. INSURANCE The Artist agrees to furnish and keep in full force and effect during term of this Agreement the following insurance policies: (a) Workers' Compensation. When required by the State Compensation laws, the Artist shall carry Workers' Compensation and Employers' Liability Insurance for all persons employed in the performance of services set forth herein. The Artist shall provide the City with a certificate verifying such coverage or endorsement acceptable to the City before commencing services under require thirty -day (30) notice to the termination or expiration of any kind. this Agreement. Such policy shall City in writing prior to cancellation, (b) Liability (Bodily Iniury and Property Damagi. The Artist shall carry Liability Insurance (Bodily Injury and Property Damage) in an amount not less than $1,000,000.00. The Artist shall provide the City with certificates verifying such coverage acceptable to the City before commencing services under this Agreement. The certificate must be followed within sixty (60) days by an endorsement to the insurance policy. Such policy shall require thirty (30) days notice to the City in writing prior to cancellation, termination or expiration of any kind. All insurance policies shall name the City as an additional insured. Such insurance shall be kept in force until Final Acceptance by the City of all installed Artwork designed under the Agreement, and the City has issued a Notice of Completion. SECTION 9. OWNERSHIP OF ARTWORK Ownership of the Artwork shall pass to the City upon acceptance. SECTION 10. OWNERSHIP OF COPYRIGHT Artist retains rights to copy or reproduce the Artwork and rights under any copyright laws to which the Artwork may be subject. If a copyright for the Artwork is registered with the U.S. Copyright Office, the Artist shall provide the City with a copy of the application, the registration number and the effective date of the registration. Artist shall grant the City and its successors in interest full use of the completed Artwork for graphical reproduction and publication in non-commercial uses. Artist further grants the City and its successors in interest the ability to publish photographs for commercial purposes where the Artwork is only incidental as opposed to the primary subject matter. The Artist shall use his or her best efforts to give credit to the City in any public showing or reproduction of the Artwork. Artist agrees to provide the City one copy of all relevant design development documents and/or renderings created by the Artist and one set of final photographs of all Artwork on photo archival paper signed by the Artist. Artist will provide the City with a digital copy (in .jpg format minimum 300 DPI) of all completed art elements that can be used for reproduction for non-commercial purposes. Upon request, the Artist agrees to provide the City all drawings, for review, analysis and public display. Upon final acceptance of the Artwork by the City, all original studies, drawings and designs shall be returned to the Artist and shall belong to the Artist. SECTION 11, RIGHT OF ATTRIBUTION AND INTEGRITY (a) Art ist hereby waives his or her rights of attribution and integrity in the Artwork, as set forth in 17 U.S.C. sections 106A and 113(d). This waiver shall apply to all uses of the Artwork. Artist recognizes that installation and subsequent removal of the Artwork may subject the Artwork to destruction, distortion, mutilation, or other modification. (b) Artist acknowledges and agrees that the Artwork is not "fine art" as that term is defined by California Civil Code section 987 and therefore Artist has no rights of attribution and integrity in the Artwork under Civil Code section 987. Artist further acknowledges and agrees that if a court of competent jurisdiction finds the Artwork to be "fine art," Artist waives his or her rights of attribution and integrity in the Artwork under Civil Code section 987 for all uses of the Artwork. SECTION 12. SALE OF ARTWORK (a) City agrees that Artist shall have a right of first refusal if City decides to sell the Artwork. City shall notify Artist in writing of its intent to sell the Artwork. Artist shall have thirty (30) days from the date of the City's notice of intent to sell to inform the City whether Artist intends on exercising the right of first refusal. If Artist exercises the right of first refusal, Artist shall have the right to purchase the Artwork at the higher of a) the fee paid to the Artist by the City as stated in Section 2 of this Agreement; or b) a bona fide offer to purchase the Artwork, together with all copyright and other rights to the Artwork possessed by the City, made by a third party. (b) Any sale of the Artwork shall conform to the requirements of Civil Code section 986, as it may be amended from time to time, to the extent Civil Code section 986 is applicable to the transaction. SECTION 13. SALES AND USE TAXES Any sales or use taxes, which may become due and payable in connection with the Artwork shall be provided by the Artist and shall be the Artist's sole responsibility. The Artist will indemnify the City against any loss, damage or expense in connection with any such tax or taxes. SECTION 14. NON-DISCRIMINATION CLAUSE During the performance of this Agreement, the Artist certifies and represents that the Artist and each subcontractor hereunder will ensure that, in its employment practices, persons are employed and employees are treated equally and without regards to or because of race, color, religion, national origin, sex, age, disability, marital status, sexual orientation/preference, creed, ancestry, medical condition, Acquired Immune Deficiency Syndrome (AIDS) — acquired or perceived, or retaliation for having filed a discrimination complaint. SECTION 15. INDEPENDENT CONTRACTOR Artist shall perform all work under this Agreement as an independent contractor and not as an agent or an employee of City. Artist shall not be supervised by an employee or official of the City nor shall Artist exercise supervision over any employee or official of the City. SECTION 16. MISCELLANEOUS (a) Contract Administration. The Contract Administrator for this Agreement shall be the City Manager of the City of Temple City, or his/her designee. Wherever this Agreement requires notice to be given to or by City, or any determination or action to be made by City, the City Manager, or his designee, shall represent and act for City. (b) Compliance With The Law. Artist shall comply with all Federal, State, and City statutes, ordinances, and regulations applicable to the performance of Artist's services under this Agreement. (c) Entire Agreement. This writing embodies the entire agreement and understanding between the parties hereto. There are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. (d) Modification. No alteration, change, amendment, or modification of the terms of this Agreement shall be valid unless made in writing, signed by both parties hereto, and approved by appropriate action of City. (e) Waiver. No waiver of performance by either party shall be construed or operate as a waiver of any subsequent default in the performance of any term, covenant, or condition of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. (f) Governing Law. This Agreement, regardless of where executed or performed, shall be governed by and construed in accordance with the laws of the State of California. (g) Heirs and Assigns. This Agreement shall be binding upon and inure to the benefit of City and of Artist and of their respective heirs, personal representatives, successors, and permitted assigns. (h) Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and deemed to have been duly given upon the delivery and receipt thereof, as the case may be, if delivered personally or sent by certified mail, return receipt requested, postage prepaid, as follows: City Manager City of Temple City 9701 Las Tunas Dr. Temple City, CA 91780 ARTIST Daniel Stern, President Lost Men Productions 10350 Santa Monica Blvd., Suite 130 Los Angeles, CA 90025 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year as indicated on the cover page. CITY OF TEMPLE CITY AI By: B� Jose Pulido City Manager APPROVED AS TO FORM: By: 6 Eric S City Attorney ATTEST: By, Peggy K City Clerk Daniel Stern, President Lost Men Productions ATTACHMENT "A" SCOPE Or WORK As requested by the City, the Artist shall provide and coordinate, with the applicable team, all services related to the Artwork to be located within the site. This includes the following scope as outlined below: (a) The Artist shall create a final design concept and fabricate the Artworks which will involve the following elements: Two (2) life-sized bronze sculptures for the Rosemead Boulevard Safety Enhancement Beautification Project: one titled "Jump -On" described by the Artist as "Mr. Temple City' (approx. 6' x 7' x 7'), and the second titled "Reaching Out / Helping Hand" described by the Artist as "Ms. Temple City" (approx. 4 '/z x 6' x 7'). Sculptures are to be sited at the North/West corner of Las Tunas Drive and Rosemead Boulevard, and Rosemead Boulevard and Broadway Street (near The Hat restaurant, 5505 Rosemead Blvd., Temple City, CA) respectively. The final design concept for the sculptures shall include the following: Updated drawings of sculptures, which include dimensions and their orientation on proposed base provided by City; • Visual or material samples of bronze colored or patina finishes that are proposed for the sculptures; and • Updated project narrative and budget. (b) The Artist shall provide the City with a complete set of working drawings that indicate the method of fabrication for all Artwork. The shop drawings shall include all specifications for construction methods and materials for the Artwork. In addition, the artist shall review installation of the Artwork with the project contractor and provide the City with a completed conservation review report of said method and materials. Cost of conservation and shop drawing services and reports are the responsibility of the Artist. The City shall review and approve shop drawings to ensure they comply with appropriate City code requirements. (c) The Artist shall attend coordination meetings with City to discuss schedule, review of site preparation for installation, and project progress as needed. (d) The Artist shall provide the City with the opportunity to review various stages of fabrication of the Artwork. It is agreed that the review of the Artwork's progress may be done through a site visit to the bronze foundry or artist studio, located in Los Angeles County and Ventura County respectively. (e) The Artist will deliver the completed Artwork to the site selected by the project contractor, and will either oversee the installation of the Artwork at the site with an approved contractor, or provide the City with directions on how the Artist would like, but not expect, the Artwork to be installed. Artist agrees to acquire all permits as needed. City agrees to pay fees associated with required permits. (f) The Artist shall also provide the City with one set of final design documents of each sculpture on (photographic) archival paper signed by the Artist and digital files that represent the completed Artwork to be used in print or digital format for non-commercial purposes. (g) The Artist shall further work in cooperation with the projects public art consultant in the preparation of documents for conservation review and the development of a maintenance manual for the Artwork. This maintenance manual shall include recommendations for a schedule of maintenance, specifications of cleaning techniques, and cleaning materials and their sources for all public art projects. (h) The Artist will complete any requested repairs within 30 workdays after receipt of a Notice of Completion from the City. ATTACHMENT "B" SCHEDULE OF PAYMENTS Total compensation for all services related to the development of final design and fabrication of the Artwork is Fifty Thousand Dollars ($50,000.00). Payments shall be allocated as follows: • 5% after signature of this agreement ($ 2,500.00). • 15% after approval of the final design concept by Temple City Public Arts Commission and City Council ($ 7,500.00). • 30% after completion, receipt and approval of all shop drawings for the Artwork. This includes specifications for artwork fabrication, conservation review report and attendance at meeting with project contractor regarding installation of sculptures onto the bases provided by the City ($ 15,000.00). • 15% after completion of mid -point fabrication of both sculptures. Mid -point is defined as completion of mold process in preparation for bronze pour, assemblage of interior support structure and site inspection by City representatives and project art consultant ($ 7,500.00). • 20% after pre -inspection of completed Artwork at foundry and prior to delivery of Artwork to pre -defined location ($ 107000.00). • 15% after performance of technical assistance to contractor for the installation of all Artwork for the project after issuance of final Notice of Completion of all artworks and development of maintenance manual with the City ($ 7,500.00). ATTACHMENT"C" SCHEDULE OF PERFORMANCE Services of the Artist shall commence upon the execution of this Agreement by the Parties. The Artist shall use best efforts to have the completed artwork delivered by April 15, 2014 unless otherwise provided by written amendment hereto. The fabrication and installation of the Artwork shall take place in six phases. PHASE The Artist shall provide the City a final design concept for the Artwork. A presentation of the final design concept shall be provided to the Temple City Public Arts Commission and the City Council. The final design concept includes all revised images of each sculpture, dimensions of each artwork, visual examples or material samples for bronze color or patina finish, and a revised artist statement and budget. PHASE II Within 30 days of approval of the final design concept by the City Council, the Artist shall provide a complete set of working drawings for the Artwork. This includes sculpture dimensions, material specifications for the Artwork, conservation report, shop drawings and attachment details for sculptures. For this phase, City shall review shop drawings to ensure that they meet necessary engineering requirements for the Artwork. In addition, the Artist shall attend a coordination meeting with the City to discuss schedule, installation and delivery of the Artwork. PHASE III Artist shall provide the City with the opportunity to inspect the sculptures at various points in the fabrication process. PHASE IV Artist shall complete fabrication of all Artworks and shall notify the City when the final Artwork is ready for inspection prior to delivery. Artist shall deliver the Artwork to the designated site for staging as determined by City. PHASE V Artist shall provide technical assistance to the City appointed contractor during the installation of the Artwork. PHASE VI Artist shall assist the City in the development of a final written maintenance manual for the Artwork. If required, the Artist will address any concerns within 30 workdays after receipt of a Notice of Completion from the City.