HomeMy WebLinkAboutA37-05 Agmt for Commisison of Public Art - Strong Play EthicContract No.9 1 $olln '9 GU'S
AGREEMENT FOR COMMISSION OF PUBLIC ART WOR K
THIS AGREEMENT is entered into this 14th day of July, 2005, by and between the City o f
San Luis Obispo, a charter city and municipal corporation (hereinafter the "City"), and Caro l
Paulsen (hereinafter the "Artist").
RECITAL S
WHEREAS,on January 25, 2005, the City requested proposals for the design an d
fabrication of artwork in accordance with the specifications in the proposal package date d
March 16, 2005 for Damon-Garcia Sports Field ; an d
WHEREAS,the Artists proposal was reviewed and approved by the Public Art Jury ,
the Parks and Recreation Commission and the Architectural Review Commission i n
accordance with San Luis Obispo Municipal Code Chapter 17 .98 ; an d
WHEREAS,on July 5, 2005, the City Council approved of the Artist's proposa l
recommended by the Public Art Jury, the Parks and Recreation Commission and the
Architectural Review Commission ; an d
WHEREAS,the Artist is a recognized professional artist, and the City acknowledge s
sufficient familiarity with the style and quality of the Artist's work, and ; the City desires th e
Artist to create an original work of art entitled "Strong Play Ethic" for location at the Damon-
Garcia Sports Field . The Artist's concept design (attached as Exhibit "A") has been reviewe d
and approved by the City .
NOW, THEREFORE,the City and the Artist, for the consideration and under th e
conditions hereinafter set forth, agree as follows:
ARTICLE 1 : SCOPE OF SERVICE S
1-1 GENERAL
(a)The Artist shall perform all services and furnish all supplies, materials, artis t
and agent travel, and equipment as necessary for the design, execution, fabrication,
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transportation, and installation of the Work at the Site with the exception of t h
foundation, and in accordance with the terms in this Agreement .
1-2 REVIEW OF THE PROPOSA L
(a) The Artist submitted to the City artwork specifications and presentatio n
drawings of the Work in elevation and plans, containing the following items, whic h
shall be the "Proposal".
One copy of a written description and technical specifications of th e
Work including the following information :
•A professional resume ;
•References;
•Approach to project;
•Graphic rendering ;
•Estimated budget;
•Maintenance and Conservation Form ;
•Work plan and Production Schedule ;
•Proposed list of subcontractors (those known to date);
•Other information about the Work as may be reasonabl y
required by the City in order to certify the compliance of the
Work with applicable statutes and ordinances . Said exhibits
will become the property of the City upon submission by th e
Artist. Upon request by Artist, the City shall promptly furnish
all available exhibits in connection with said submission at the
artist's expense .
(b)Upon approval by the City Council and written direction to move forward, th e
Artist shall commence with fabrication, transportation, and installation of the Work a t
the Site .
(c)The City may require the Artist to make such revisions to the proposed Wor k
as are necessary for the Work to comply with applicable statutes, ordinances, o r
regulations governing the project .
(d)The City may require revisions of the Work for practical (non-aesthetic )
reasons .
(e)The Artist fee may be equitably adjusted for any increase or decrease in th e
Artist's cost of, or time required for,performance of any revisions pursuant to thi s
Section 1-2 . Any claim of the Artist for adjustment under this paragraph must be
presented to the City in writing within thirty (30) days after the date of the revision b y
the Artist .
Within thirty (30) days after receipt of the Artist's revisions, pursuant to thi s
Section 1-2, the City shall notify the Artist of its approval or disapproval of suc h
revisions . The City may require the Artist to submit additional revisions until suc h
revisions are accepted by the City . Revisions made and accepted by the Cit y
pursuant to this Section 1-2 become a part of the final design, technica l
specifications and fabrication and installation schedule of the Work, which shall b e
attached to this Agreement as Exhibit "B".
1-3 EXECUTION OF THE WOR K
(a)Pursuant to Section 1-2 above, the Artist shall commence fabrication of th e
Work, in accordance with such schedules . Although the schedule may be amende d
by written agreement between the City and the Artist, it is agreed that the Artist shal l
perform all of the obligations under this contract on or before January 18, 2006 .
(b)The City shall have the right to review the Work at reasonable times durin g
the fabrication . The Artist shall submit to the City progress reports in accordance wit h
the schedule required by Section 1-2 .
(c)The Artist shall complete the fabrication and installation of the Work i n
substantial conformity with the approved Proposal .
(d)The Artist shall present to the City,in writing, for further review, an y
"significant changes"in the scope, design, color,size,material, or texture of the Wor k
not permitted by or not in substantial conformity with the Proposal . A "significant
change" is :
i.Any material change in the scope, design, color, size, material ,
texture ;. or location of the Work on the Site ,
ii.Any material change in the Work that affects installation, scheduling ,
site preparation, or maintenance for the Work ; or
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iii .Any change in the concept of the Work as represented in the
accepted proposal .
(e) If changes reviewed by the City are not approved, the Artist will not resume
the Work nor resume the payment schedule until changes to the Work are reviewe d
and approved by the City .
1-4 DELIVERY AND INSTALLATIO N
(a)Prior to commencement of work at the Site, the Artist shall notify the City of
schedules for installation . The Artist shall be responsible for all expenses, labor, an d
permits .
(b)Prior to delivery of the Work, the Artist shall notify the City in writing when
fabrication of the Work is completed and the Artist is ready for delivery of the Work t o
the Site .
(c)The Artist shall provide for completion of the Work in compliance wit h
appropriate codes and the approved schedule .
1-5 POST INSTALLATIO N
(a)Within thirty (30) days after the installation of the Work, the Artist shall furnis h
the City with the following documentation of the Work as installed :
One set of digital photographs of the completed Work, one taken fro m
each of three different view points ;
ii . The City shall have the right to duplicate and distribute for an y
noncommercial purpose the artwork documentation supplied by th e
Artist under this Agreement ;
The Artist shall be available at such time or times as may be agree d
between City and Artist to attend any inauguration or dedicatio n
ceremonies relating to the transfer of The Work to the City . The City
shall use its best efforts to arrange for publicity for the complete d
work in such art publications and otherwise as may be determine d
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between the City and the Artist as soon as is practical followin g
installation .
(b)Upon execution of the Agreement, the Artist shall provide the City with writte n
instructions for appropriate maintenance and preservation of the Work .
1-6 FINAL ACCEPTANC E
(a)The Artist shall advise the City in writing when all services required under thi s
Agreement have been completed in substantial conformity with this Agreement .
(b)The City shall notify the Artist in writing of the final acceptance (o r
nonacceptance) of the Work .
(c)Final acceptance shall be effective as of the earlier of the following dates :
The date of the City's notice of final acceptance ; o r
ii . The 30 th day after the Artist has sent written notice to the City
required under Section 1-6(a) unless the City, upon receipt of suc h
30-day notice and prior to the expiration of the 30-day period, give s
the Artist written notice specifying and describing the services, whic h
have not been completed .
1-7 RISKOF LOS S
The risk of loss or damage to the Work shall be borne by the Artist until final acceptance, an d
the Artist shall take such measures as are necessary to protect the Work from loss o r
damages until final acceptance .
1-8 INDEMNITY
Upon final acceptance of the Work, the Artist shall indemnify and hold the City and it s
elected officials, employees, and/or agents harmless from any and all claims or liabilitie s
then existing or arising thereafter from the Artist's negligence or willful misconduct in
connection with the Work .
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1-9 TITLE,ASSIGNMENT OF ROYALTY RIGHTS,ANDWAIVE R
(a)Title to the Work shall pass to the City upon final acceptance . The Artist
hereby assigns the right to collect any royalty payment provided by Civil Code
section 986(a) to the City and to the City's assigns .
(b)Except as expressly provided below, the City shall not intentionally damage ,
alter, modify, or change the Work without the prior written consent of the Artist .
(c)The Artist acknowledges and agrees that the City may require the Site fo r
purposes other than the display of the Work . The City agrees that it will notify th e
Artist of any proposed alteration of the Site that would require the removal o r
relocation of the Work or affect the intended character and appearance of the Wor k
and will consult with the Artist in the planning and execution of any such removal ,
relocation, or alteration and will make a reasonable effort to maintain the integrity of
the Work .
(d)The Artist acknowledges and agrees that the City retains the right to relocat e
or remove the Work from public display for any reason, at the sole discretion of the
City . Reasons for removing the Work from public display shall include, but not be
limited to : hazards to public health, safety or welfare ; unsightly or deteriorate d
conditions of the Work ; or the need to access, repair and maintain public facilities .
(e)Except as provided above, the Artist expressly waives, for herself and he r
successors in interest, to the greatest extent allowed by law, any rights they may
have under California Civil Code sections 986, 987, 988 and 989 .
ARTICLE 2 : COMPENSATION AND PAYMENT SCHEDUL E
2-1 AGREEMENT AMOUNT AND PAYMEN T
(a) The City shall pay the Artist an amount not to exceed $39,000 which wil l
constitute full compensation and payment for all services to be performed under thi s
Agreement including execution, fabrication, artist and/or agent travel, transportation,
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and installation . Payment shall be made in accordance with Schedule included i n
Proposal.
Commencement of Fabricatio n
Twenty-five percent (25%) ($9,750) of the total payment upon execution o f
Agreement .
Midpoint of Agreemen t
Fifty percent (50%) ($19,500 .00) of the total payment upon completion of
50% of the work as determined by the Project Manager.
Final Acceptanc e
Twenty-five percent (25%) ($9,750 .00) of the total payment upon completio n
of all outstanding work and review and acceptance of Work by the City.
(b)All requests for payment shall be submitted to the Project Manager (specifie d
in Article 18 below) in writing for review and approval and must be accompanied by a
detailed invoice and original receipts and other documentation as required by the
Project Manager supporting work completed .
(c)Payment shall be issued within 30 days of approval of detailed invoices an d
requests for payment by the Project Manager .
2-2 ARTIST'S EXPENSE S
The Artist shall be the responsible party for all mailing or shipping charges o n
submissions to the City, and the costs of all travel by the Artist and the Artist's agents
and employees necessary for the proper performance of the services required unde r
this Agreement .
ARTICLE 3 : WARRANTIE S
3-1 WARRANTIES OF TITL E
The Artist represents and warrants that:
(a)The Work is solely the result of artistic effort of the Artist ;
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(b)Except as otherwise disclosed in writing to the City, the Work is unique and
original and does not infringe upon any copyright ;
(c)That the Work, or a duplicate thereof, has not been accepted for sale
elsewhere; an d
(d)The Work is free and clear of any liens or claims from any sourc e
whatsoever .
3-2 WARRANTIES OF QUALITY ANDCONDITIO N
The Artist represents and warrants that :
(a)The execution and fabrication of the Work will be performed in a professiona l
manner (expert, qualified, skilled);
(b)The Work, as fabricated and installed, will be free from defects in materia l
(except such defects as are normally present and unavoidable in natural material s
and outlined in Proposal) and workmanship, including any defects or qualities whic h
cause or accelerate deterioration of the Work ; an d
(c)Reasonable maintenance of the Work will not require procedure s
substantially in excess of those described in the maintenance recommendations b y
the Artist to the City ;
(d)The warranties described in this Section 3-2 shall survive for a period of on e
(1) year after final acceptance of the Work . The City shall give notice to the Artist o f
any observed breach with reasonable promptness . The Artist shall, at the instructio n
of the City, and at no cost to the City, cure reasonably and promptly the breach o f
any such warranty which is curable by the Artist and which cure is consistent wit h
professional standards, including for example, cure by means of repair o r
refabrication of the Work as determined by the City .
3-3 WARRANTIES OF WORK
The Artist represents and warrants that:
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(a)The Work will not substantially vary or deviate from the City approved Wor k
without the prior written consent of the City .
(b)The Work will not include any hidden, subliminal or camouflaged message s
or statements of any kind or nature .
ARTICLE 4 : INSURANC E
Contractor shall procure and maintain for the duration of the contract insurance
against claims for injuries to persons or damages to property that may arise from o r
in connection with the performance of the work hereunder by Contractor, its agents ,
representatives, employees or sub-contractors .
4-1 MINIMUM SCOPE OF INSURANC E
Coverage shall be at least as broad as :
(a)Insurance Services Office Commercial General Liability coverag e
(occurrence form CG 0001).
(b)Insurance Services Office form number CA 0001 (Ed . 1/87) covering
Automobile Liability, code 1 (any auto).
(c)Workers' Compensation insurance as required by the State of California an d
Employer's Liability Insurance .
4-2 MINIMUM LIMITS OF INSURANC E
Contractor shall maintain limits no less than :
(a)General Liability : $1,000,000 per occurrence for bodily injury, personal injur y
and property damage . If Commercial General Liability or other form with a
general aggregate limit is used, either the general aggregate limit shall appl y
separately to this project/location or the general aggregate limit shall be twic e
the required occurrence limit.
(b)Automobile Liability : $1,000,000 per accident for bodily injury and propert y
damage .
(c)Employer's Liability : $1,000,000 per accident for bodily injury or disease .
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(d)Errors and Omissions Liability : $1,000,000 per occurrence.
4-3 DEDUCTIBLES AND SELF-INSURED RETENTION S
Any deductibles or self-insured retentions must be declared to and approved by th e
City . At the option of the City, either : the insurer shall reduce or eliminate suc h
deductibles or self-insured retentions as respects the City, its officers, officials ,
employees and volunteers ; or Contractor shall procure a bond guaranteeing paymen t
of losses and related investigations, claim administration and defense expenses .
4-4 OTHER INSURANCE PROVISIONS
The general liability and automobile liability policies are to contain,or be endorsed to
contain, the following provisions :
(a)The City, its officers, officials, employees, agents and volunteers are to b e
covered as insureds as respects : liability arising out of activities performed b y
or on behalf of Contractor; products and completed operations of Contractor ;
premises owned, occupied or used by Contractor ; or automobiles owned ,
leased, hired or borrowed by Contractor. The coverage shall contain n o
special limitations on the scope of protection afforded to the City, its officers ,
official, employees, agents or volunteers .
(b)For any claims related to this project, Contractor's insurance coverage shal l
be primary insurance as respects the City, its officers, officials, employees ,
agents and volunteers . Any insurance or self-insurance maintained by th e
City, its officers, officials, employees, agents or volunteers shall be excess o f
Contractor's insurance and shall not contribute with it .
(c)Any failure to comply with reporting or other provisions of the policie s
including breaches of warranties shall not affect coverage provided to th e
City, its officers, officials, employees, agents or volunteers .
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(d)Contractor's insurance shall apply separately to each insured against who m
claim is made or suit is brought, except with respect to the limits of th e
insurer's liability .
(e)Each insurance policy required by this clause shall be endorsed to state tha t
coverage shall not be suspended, voided, canceled by either party, reduce d
in coverage or in limits except after thirty (30) days' prior written notice b y
certified mail, return receipt requested, has been given to the City.
4-5 ACCEPTABILITY OF INSURER S
Insurance is to be placed with insurers with a current A .M . Best's rating of no les s
than A:Vll .
4-6 VERIFICATION OF COVERAG E
Contractor shall furnish the City with a certificate of insurance showing maintenanc e
of the required insurance coverage . Original endorsements effecting general liabilit y
and automobile liability coverage required by this clause must also be provided . Th e
endorsements are to be signed by a person authorized by that insurer to bin d
coverage on its behalf . All endorsements are to be received and approved by th e
City before work commences .
ARTICLE 5 : COPYRIGHT
5-1 Copyright in the Work and related design, drawings, sketches, and models will b e
owned by the Artist until acceptance of the Artists Work by the City pursuant t o
Section 1-6 hereof . Notwithstanding the foregoing, the Artist agrees not to make use
of such copyright in the Work for any purpose other than the performance by th e
Artist of the Artist's obligations under this Artwork Agreement, without the writte n
consent of the City . Upon acceptance of the Artist's Work pursuant to Section 1-6
hereof, copyright in the Work will be owned jointly by the City and the Artist and n o
further use of the copyright will be made by the Artist or the City without the writte n
consent of the other, which consent will not be unreasonably withheld .
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5-2 The Artist certifies that the Artwork is a unique work of art especially designed for th e
City, and shall not duplicate or reproduce the Work nor shall the Artist permit other s
to do so except with the written permission of the City .
5-3 The City has the right to reproduce and distribute in printed form and on commercia l
documents and or brochures or any other literature of the City describing or dealin g
with its real estate holdings, photographs, realistic renderings, videotapes, or films o f
the Work . Such reproductions and use of the images of the Work for promotiona l
purposes shall not constitute a breach of copyright and no royalty shall be due and
payable by the City to the Artist for such use .
5-4 CREDIT TO THE ARTIS T
All reproductions of the Work by the City shall contain a credit to the Artist .
5-5 CREDIT TO THE CITY
The Artist shall use her best effort to give a credit in any public showing under th e
Artist's control of illustrations of the Work as follows : "An original work owned an d
commissioned by the City of San Luis Obispo, California ."
ARTICLE 6 : ARTIST'S RIGHT S
6-1 MAINTENANC E
The City shall reasonably protect and maintain the Work against the ravages of time ,
vandalism, and the elements, in accord with the instructions of the Artist provide d
under Section 1-5(b).
6-2 ARTIST REPRODUCTION RIGHTS
Pursuant to Article 5, Section 5-1, the City agrees that the Artist shall have the righ t
to reproduce and distribute in printed form and on non-commercial educationa l
materials and brochures advertising or promoting the Artist and the Artist's career ,
two-dimensional images such as photos, slides or realistic renderings, video tapes ,
or films of the Work as installed and formally accepted by the City . Suc h
reproductions and use of the images of the Work for promotional and educationa l
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purposes shall be deemed to not constitute a breach of copyright in any way and n o
royalty fee shall be due and payable to the Artist for such use . Such reproduction an d
images of the Work for publicity, promotion, and educational purposes shall, to th e
extent reasonably possible and appropriate, give reference to the City of San Lui s
Obispo,
ARTICLE 7 :ARTIST AS INDEPENDENT CONTRACTOR
The Artist shall perform all work under this Agreement as an independent contractor and no t
as an agent or employee of the City . The Artist shall not be supervised by any employee o r
official of the City nor shall the Artist exercise supervision over any employee or official of th e
City. The City alerts the Artist to the provisions of the Labor Code §1771, which may requir e
the payment of prevailing wages.
ARTICLE 8 : ASSIGNMENT . TRANSFER AND SUBCONTRACTIN G
Neither the City nor the Artist shall assign or transfer any interest in this Agreement withou t
prior written consent of the other. The Artist may subcontract portions of the services to b e
provided hereunder at the Artist's expense provided that said subcontracting shall not affec t
the design, appearance or visual quality of the Work and shall be carried out under th e
personal supervision of the Artist, and in accordance with all applicable laws .
ARTICLE 9 : TERMINATION
If either party to this Agreement shall willfully or negligently fail to fulfill,in a timely or prope r
manner, or otherwise violate any of the covenants or agreements material to this Agreement ,
then the other party shall thereupon have the right to terminate this Agreement by givin g
written notice to the defaulting party of its intent to terminate, specifying the grounds fo r
termination . The defaulting party shall have ten (10) days after receipt of the notice to cur e
the default . In the event of default by the Artist,all finished and unfinished drawings ,
sketches, photographs, and other products prepared and submitted or prepared fo r
submission by the Artist under this Agreement shall, at the City's option, become Cit y
property This, however, shall not relieve the Artist of liability to the City for damage s
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sustained by the City by virtue of any breach of this Agreement by the Artist . In addition to al l
other remedies, the City may reasonably withhold payments to the Artist until such time a s
the exact amount of damages due the City from the Artist is determined .
ARTICLE 10 : CONTRACT ADMINISTRATO R
The Contract Administrator for this Agreement shall be the Public Art Coordinator of the Cit y
of San Luis Obispo as defined in San Luis Obispo Municipal Code section 17 .98 .020 D, o r
his or her designee .
ARTICLE11 :NONDISCRIMINATION
In carrying out the performance of the services designated, the Artist shall not discriminat e
as to race, religion, sex, age, sexual orientation, national origin, the presence of an y
physical, mental or sensory handicap, or any other basis prohibited by applicable law .
ARTICLE12:COMPLIANC E
The Artist shall be required to comply with all federal and state laws and City statutes ,
ordinances, and regulations applicable to the performance of the Artist's services under thi s
Agreement, including but not limited to, Chapter 17 .98 of the San Luis Obispo Municipa l
Code .
ARTICLE 13 : ENTIRE AGREEMEN T
This writing embodies the entire agreement and understanding between the parties hereto ,
and there are no other agreements or understandings, oral or written, with reference to th e
subject matter hereof that are not merged herein and superseded hereby .
ARTICLE14 :MODIFICATIO N
No alteration, change, amendment, or modification of the term of this Agreement shall b e
valid, unless made in writing and signed by both parties hereto and approved by appropriate
action of the City .
ARTICLE15 :WAIVER
No waiver of performance by either party shall be construed as or operate as a waiver of an y
subsequent default of any terms, covenants, or conditions in this Agreement . The paymen t
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or acceptance of fees for any period after a default shall not be deemed a waiver of any righ t
or an acceptance of performance .
ARTICLE 16 :GOVERNING LAW
This Agreement, regardless of where executed or performed, shall be governed by an d
construed in accordance with the laws of the State of California .
ARTICLE 17 : HEIRS AND ASSIGN S
This Agreement shall be binding upon and shall inure to the benefit of the City and of th e
Artist and of her respective heirs, personal representatives, successors, and permitte d
assigns .
ARTICLE 18 : NOTICE S
All notices, requests, demands, and other communications which are required or permitted to
be given under this Agreement shall be in writing and shall be deemed to have been dul y
given upon delivery and receipt thereof, as the case may be, if delivered personally or sen t
by certified mail, return receipt requested, postage-prepaid as follows :
City :Artist:
c/o Jennifer Lawrence, Project Manager Carol Paulse n
City of San Luis Obispo 1135 2nd Stree t
955 Morro Street Baywood Park, CA 93402
San Luis Obispo, CA 9340 1
ARTICLE 19 : ATTORNEY'S FEE S
Should any action or proceeding be brought to enforce the terms of this Agreement, th e
prevailing party shall be entitled to reasonable attorney's fees and costs .
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IN WITNESS WHEREOF,the parties hereto have caused this Agreement to b e
executed by his respective authorized officers or representatives as of the day and year se t
forth on page one of this Agreement .
CITY OF SAN LUIS OBISP O
APPROVED AS TO FORM :ARTIST:
Carol Paul e nATTORNEY
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