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.
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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
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(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
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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
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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.
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(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.
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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
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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.
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(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.
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ATTACHMENT"B"
SCHEDULE OF PAYMENTS
[Insert Schedule of Payments]
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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.
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