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HomeMy Public PortalAbout23) 7H Attachment D1 1, 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 , an individual, ("Artist"). Artist and City may be collectively referred to hereinafter as the "Parties." RECITALS (reasons for the transaction) A. The City desires to commission two sculptures, 23 art pavers and word art locations, and four tile mural seating walls 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 design concepts for one of three public art elements on Rosemead Boulevard, including, two sculptures, four the mural seating walls, or 23 art paver and word art locations. 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 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 dollars ($ ) 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. RIV 44811-92'8-6995 v1 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 concerns, if necessary as soon as possible, but must complete the 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 OF LOSS RI V 94811-9229-6Q95 I (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 Qualitv 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 this Agreement. Such policy shall require thirty -day (30) notice to the City in writing prior to cancellation, termination or expiration of any kind. (b) Liabilitv (Bodily Iniury and Property Damaqe). 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 RIV #4811-9228-6995 yl 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 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 design documents of art objects on 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) Artist 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 R IV 44811-9328-6995 v 1 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. RIV N4811-9`8-6995 v1 (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 Aqreement. 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) Governinq 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 ARTIST City Manager City of Temple City 9701 Las Tunas Drive Temple City, CA 91780 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year as indicated on the cover page. RIV »4811-9228-6995 0 CITY OF TEMPLE CITY ARTIST By: By: Jose Pulido Name: City Manager APPROVED AS TO FORM: By: Eric S. Vail City Attorney ATTEST: By: Peggy Kuo City Clerk RiV H4811-9228-6995 v1 ATTACHMENT "A" SCOPE OF 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 fabricate the Artwork which will involve the following elements: [Insert a Detailed Physical Description of the Artwork Provided by the Artist]. (b) The Artist shall provide the City with a complete set of working drawings that indicate the method of fabrication for all art components. The working drawings shall include all specifications for electrical and lighting components, specifications for the UL listed interior light used for the lamps, specifications for construction methods and materials for installation of the Artwork and a completed conservation review report of said method and materials. Cost of conservation and engineering services and reports are the responsibility of the Artist. The City may request stamped electrical or engineering drawings if necessary. (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 images provided to the City. Progress review of the Artwork shall take place in person at the fabrication shop located at [Insert Location]. (e) The Artist will deliver the Artwork to the site located at [Insert Location] 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 permits required. (f) The Artist shall also provide the City with one set of final design documents of art objects on 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 project 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 art projects. RIV 04811-9228-6996 c1 (h) The Artist will address concerns, if necessary as soon as possible, but must complete requested repairs within 30 workdays after receipt of a Notice of Completion from the City. RIV'd8tt-9'28-6995 vI ATTACHMENT"B" SCHEDULE OF PAYMENTS [Insert Schedule of Payments] RIV #4811-9228-6995 v1 ATTACHMENT"C" SCHEDULE OF PERFORMANCE Services of the Artist shall commence upon the execution of this Agreement by the Parties. The Artwork shall be completely delivered by [Insert Date] 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 with a complete set of working drawings that indicate the method of fabrication for all art components. PHASE II Within _ days of providing the City with a complete set of working drawings, the Artist shall attend coordination meetings with the City to discuss schedule, review of site preparation for installation, and project progress as needed. PHASE III After attending coordination meetings with the City, the Artist shall commence fabrication of the Artwork and provide the City with the opportunity to review various stages of fabrication. PHASE IV Within _ days of providing the City with a complete set of working drawings and commencing fabrication of the Artwork, the Artist will provide delivery of the Artwork and will oversee the installation of all Artwork at the site with an approved contractor. PHASE V Within _ days of delivering the Artwork, the Artist shall assist the project art consultant in the development of a final written maintenance manual for the Artwork. PHASE VI The Artist will address any concerns within 30 workdays after receipt of a Notice of Completion from the City. RIV »4811-9228-6995 v1