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.