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HomeMy WebLinkAbout10/20/1998, 6 - CONTRACT WITH THE COMMITTEE FOR THE SCULPTURE AT RAILROAD SQUARE AND ELIZABETH MACQUEEN FOR THE CREATION OF THE ""IRON ROAD PIONEERS"" SCULPTURE"council o zo_4 8 j acEnaa izEpout '.N..b� C I T Y OF S A N L U I S O B I S P O FROM: Ken Hampian, Assistant City Administrative Officer Prepared By: Wendy George, Assistant to the City Administrative Officer W SUBJECT: CONTRACT WITH THE COMMITTEE FOR THE SCULPTURE AT RAILROAD SQUARE AND ELIZABETH MACQUEEN FOR THE CREATION OF THE "IRON ROAD PIONEERS" SCULPTURE CAO RECOMMENDATION Approve a contract with The Committee for the Sculpture at Railroad Square and Elizabeth MacQueen establishing the relationship of the three parties in the "Iron Road Pioneers" sculpture project. DISCUSSION Background In 1994, the City was approached by a well-known local sculpture, Elizabeth MacQueen, about the possibility of installing a bronze sculpture of her creation at Railroad Square to honor the Chinese who worked on the railroad in San Luis Obispo County. A clay maquette, which was later cast in bronze, was developed and reviewed by the Cultural Heritage Committee and the Architectural Review Committee. Both approved the work for placement at the proposed site in Railroad Square. Initial efforts for private fundraising were unsuccessful and the project languished for several years. Recently, a new committee, The Committee for the Sculpture at Railroad Square, was formed. City staff met with this committee to explore ways that the City could assist in the process of the sculpture's creation. As a result, at its October 21, 1997, meeting the Council approved a matching grant of up to $50,000 to be used to partially defray the anticipated $110,000 cost of the sculpture. The proposed contract establishes a formal relationship between the City, the Committee and Ms. MacQueen and establishes parameters for the disbursement of the $50,000. Terms of the Contract The agreement addresses many of the usual subjects contained in an agreement of this type, such as work scope, construction standards, indemnification and insurance requirements. However, there are a number of sections which are particular to the unique nature of this project. They are: Term of Agreement. The contract has a finite term of five years. This limitation was placed to encourage fundraising efforts and the timely completion of the project. Funding Obligations. The agreement establishes the City's $50,000 contribution as a matching grant, not a direct donation. It also limits the amount of money that can be used for fundraising purposes to $10,000. • Compensation. A carefully developed schedule is established for the release of fiords to the artist. It assures that the City's contribution has been matched by the fundraising efforts of the Committee before each payment is made. The first payment of $35,000 is made when the joint City /Committee balance is $50,000. The second payment of $25,000 is made when the new �—/ Council Agenda Report - Iron Road Pioneers Agreement Page 2 City/Committee balance is $50,000. The second payment of $25,000 is made when the new joint balance reaches $45,000. The third payment of $20,000 is made when the new joint balance reaches $40,000. The final payment of $30,000 is made when the Committee raises an additional $25,000, bringing the balance back to $45,000. The remaining balance will be used for fundraising, and as a contingency fund, as needed. Any funds remaining at the completion of the sculpture will ultimately dispensed to worthy non -profit organizations by the Committee. Ownership. Upon completion of the sculpture, it will be owned by the City. However, the City must consult with the Cultural Heritage Committee and the Architectural Review Committee prior to any alteration, removal or relocation of the sculpture. Maintenance and Display. The City assumes responsibility for maintenance of the sculpture after its completion. The sculptor will provide written instructions for its care. Should the sculpture be damaged, the City maintains the right to restore, repair or replace it in keeping with the original design intent. However, the City agrees to make reasonable efforts to contact the artist before doing so. FISCAL EMPACT The $50,000 matching grant has already been approved by the Council and is contained in the Capital Improvement Program budget. ALTERNATIVE Council could decide that no disbursement should be made to the sculptor until the full $50,000 of matching funds is raised by the Committee. While this approach would provide less risk for the City, it will make fundraising more difficult. The Committee and staff believe that by disbursing enough money to allow the sculptor to begin the process, enthusiasm for the project can be encouraged and it will help stimulate contributions. Language in the contract (Section 4(b) provides a safety net by assuring that the sculptor will not proceed to the clay stage without the signed agreement of the City and the Committee. Work completed prior to this stage can be put on hold indefinitely while fundraising continues. Once the clay work begins the project must progress through to completion. Therefore, the City must be comfortable that fundraising is successful enough to warrant moving into this phase. Attachment Agreement AGREEMENT THIS AGREEMENT is made and entered into in the City of San Luis Obispo on this - day of by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, hereinafter referred to as the CITY, THE COND IITTEE FOR THE SCULPTURE AT RAILROAD SQUARE, a non -profit group, hereinafter referred to as the COMMTITEE and ELIZABETH MACQUEEN, hereinafter referred to as the ARTIST. WITNESSETH: WHEREAS, the Council of the City of San Luis Obispo has adopted Resolution No. 6362 (1987 Series), approving the placement of public art at the location in Railroad Square shown in Exhibit A; and WHEREAS, the Architectural Review Commission has approved the design of a sculpture by the ARTIST entitled "The Iron Road Pioneers" (formerly know as "The Gandy Dancers "), as meeting the adopted criteria for public art; and WHEREAS, the Cultural Heritage Committee has reviewed the proposed sculpture and found it to be historically appropriate for placement in Railroad Square; and WHEREAS, on October 21, 1997, the Council of the City of San Luis Obispo provided conceptual approval of a public4wivate partnership to fund the proposed sculpture in Railroad Square; and WHEREAS, on February 17, 1998, the Council of the City of San Luis Obispo approved a matching contribution of $50,000 toward the creation of the proposed sculpture in Railroad Square; NOW THEREFORE, m consideration of their mutual promises, obligations, and covenants hereinafter contained, the parties hereto agree as follows: TERM OF AGREEMENT. The term of the agreement will extend from the date of execution by all parties for a period of three (3) years. The agreement may be extended for an additional two (2) years upon agreement of all parties. 2. SCOPE OF WORK For and in consideration of the payments hereinafter required to be made by the CITY and the CONMITTEE, the ARTIST shall perform all services and furnish all supplies, material and equipment as necessary for the design, execution, fabrication, transportation and installation of the sculpture "Iron Road Pioneers" shown in Exhibit B, including a base for the sculpture which includes appropriate recognition of donors as part of the design. 1 b 3. FUNDING OBLIGATIONS. a) The CITY and the CONIlVITITEE agree to collaborate to acquire the fiords necessary to compensate the ARTIST for the aforementioned sculpture. The CITY will match up -to a total of fifty thousand dollars ($50,000) in contributions received by the COMMITTEE from non -City sources. The COMMITTEE is responsible for raising the remaining funds, estimated at $125,000 total, inchtiive of the CITY's contribution. b) The CONIlv=E may use up to a maximum of $10,000 of the fiords acquired to assist with the fimdraising process. c) Within two (2) years of completion of the sculpture, any excess fiords raised by the COMMITTEE shall be dispensed to non -profit organizations, not individuals, as determined by unammous agreement of the CON&& TEE. 4. COMPENSATION. a) The ARTIST shall be paid for work and services satisfactorily rendered pursuant to this Agreement in accordance with the terms herein, and subsequent adjustment, changes or additions as specifically provided for in this Agreement Such payment shall be fitll compensation for work performed and services rendered, for all supervision, labor supplies, materials, equipment or use thereof, taxes, and for all other necessary incidentals. b) The amount of payments to the ARTIST shall not exceed a maximums amount of one hundred ten thousand dollars ($115,000) subject only to adjustments, changes, or additions as specifically provided for in this Agreement ("Total Price "). c) In the event the ARTIST incurs costs in excess of Total Price without a written Amendment, the CITY and the COMMITTEE shall not be required to pay any part of such excess and the ARTIST shall have no claim against them on account thereof. d) The ARTIST commences work at her own risk ahead of any payments made according to the following formula: • The first disbursement to the ARTIST of $35,000 shall be made when the COMMITTEE's raised $25,000 is matched by the CITY's $25,000. • The second disbursement to the ARTIST of $25,000 shall be made when the CONIIvIITTBE's next $15,000 is matched by the CITY's $15,000. • The third disbursement to the ARTIST of $25,000 shall be made when the COMMITTEE's next $10,000 raised is matched by the CITY's $10,000. • The fourth disbursement to the ARTIST of $30,000 shall be made when the CONDA=E's final $25,000 is raised. e) Disbursements shall take place in a timely manner according to the level of fiords raised. A COMMITTEE member shall bring a check from the COMMITTEE to the CITY and the CITY shall deliver its check and the check of the COMMITTEE to the ARTIST. f) Recognizing that no changes can be made after the clay stage, and aware that clay will hold the shape the ARTIST has given it for a finite period of time, the ARTIST will invite a member of the COMMITTEE and the CITY to sign off at the clay stage so that the ARTIST may mold and cast the sculpture. 2 T 5. CONSTRUCTION AND INSTALLATION STANDARDS. a) Prior to installation of the public artwork, the ARTLST shall submit plans and specifications to the CITY providing information necessary to determine compliance with applicable code requirements and shall secure necessary construction permits. b) Upon the CITY's request, ARTIST sball revise plans and specifications as necessary to comply with code requirements or as deemed necessary by the CITY to protect public health or safety. CITY shall approve the plans and specifications when it detemmmes that the above requirements have been met C) The ARTIST shall fabricate and install the sculpture pieces in accordance with approved plans, specifications and applicable industry standards. d) The ARTIST, the COMMITTEE and the CITY agree to cooperate during the period of construction and prior to final written acceptance of the artwork to ensure that the artwork has been fabricated and installed in compliance with approved plans and specifications and applicable code requirements. 6. INSURANCE. The ARTIST shall procure and maintain for the duration of the contact, insurance which meets the requirements in Exhibit C. As evidence of this insurance, the ARTIST shall provide the CITY with a Certificate of Insurance and an Endorsement nammg the City as "Additional Insured ". Any changes to this insurance requirement must be approved by the CTI Y'S Risk Manager. 7. INDEMNIFICATION. The ARTIST agrees to defend, indemnify, protect and hold the COMMITTEE, the CITY and its agents, officers and employees harmless from and against any and all claims asserted or liability established for damages or injuries to any person or property, including injury to the ARTISTS employees, agents or officers which arise from or are connected with or are caused or claimed to be caused by the acts or omissions of the ARTIST, and her agents, officers or employees, in performing the work or services herem, and all expenses of investigating and defending against same; provided, however, that the ARTIST's duty to indemnify and hold harmless shall not include any claims or liability arising from the established sole negligence or wrillfiil misconduct of the City, its agents, officers or employees. 8. OWNERSHIP. a) Upon completion and installation of the sculpture shown in Exhibit B, and upon its final acceptance by the City Administrative Officer, the sculpture shall become the property of the City. b) The CITY agrees to consult with the ARTIST, the CULTURAL HERITAGE COMMITTEE and the ARCHITECTURAL REVIEW COMMITTEE prior to any alteration, removal or relocation of the sculpture following its acceptance by the CITY. The CITY retains the right to remove or relocate the sculpture in its sole discretion as the interest of the public welfare, health and safety may require. 9 MAINTENANCE AND DISPLAY. a) Upon completion of the sculpture and its final acceptance by the COMMITTEE and the CITY, the CITY shall assume full responsibility for maintenance and display of the work. 3 (o S b) The ARTIST shall provide the CITY with written instructions for the proper maintenance of the sculpture. C) If the sculpture is damaged, defaced, altered or destroyed by human acts or by acts of God, the CITY retams the right to restore, repair or replace the artwork at any time in keeping with the ARTISTS original design intent, without consulting the ARTIST, her heirs or assigns. The CITY agrees to make reasonable efforts to contact the ARTIST, or if unavailable, another competent design professional, to advise or assist in any restoration work. 10. AMENDMENTS. Any amendment, modification, or variation from the teams of this Agreement shall be in writing and shall be effective only upon approval by the Council of the CITY, the COMIvITPTEE and the ARTIST. 11. COMPLETE AGREEMENT. This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the complete agreement between the parties hereto. No oral agreement, understanding, or representation not reduced to writing and specifically incorporated hetem shall be of any force or effect, nor shall any such oral agreement, understanding, or representation be binding upon the parties hereto. In the event a dispute arises under this agreement, the parties shall endeavor to employ Alternative Dispute Resolution methods, such as mediation or arbitration, to keep legal costs to a minimum and help to preserve the on -going relationship between the parties. In the event a court proceeding ensues, the prevailing party shall be awarded attorney's fees and costs. This agreement may be signed in counterpart 12. NOTICE. All written notices to the parties hereto shall be sent by United States mail, postage prepaid by registered or certified mail addressed as follows: City City Clerk City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 Artist f Committee 13. AUTHORITY TO EXECUTE AGREEMENT. Both the CITY, the ARTIST and the COM2v=E do covenant that each individual executing this agreement on behalf of each party is a person duly authorized and empowered to execute Agreements for such party. 4 (0/16 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year fast above written. ATTEST: CITY OP SAN LUIS OYMPO, A Municipal Coipoiation Allen_K Settle, Mayor AR=- By CON EE 5 i� -7 A, q ♦ 1 jo, i 1�t =md"alfia. Exhibit B date: 9/23/97 re: RRSQ Sculpture GANDY DANCERS from: Don Baxter PROTECT STATUS The artist has already created and cast GANDY DANCERS at 15 inches high in bronze. Marco and Saro Rizzo have already escorted the project through the City process and have the O.K. from the needed bodies to proceed. TO CREATE & PRODUCE & INSTALL GANDY DANCERS & THE BASE at LIFE There are two things to design, create and cast: two 6 ft. figures with their rods. The base of ties, rails and bedding will be of actual railroad materials. STUDIO ($40,000) Design Armature Welding Clay and other materials Shipping Models Photography Assistants Travel to foundry FOUNDRY ($40,000) Mold Wax Cast Welding & Chasing Rods Patina Preparation for installation INSTALLATION ($20,000) Shipping Preparation of the site Construction at the site of the plinth and the auto safety barrier Installation Plaque CONTINGENCY ($5,000) Alterations Necessary changes and modifications. There will be some. ARTIST CONTRIBUTION The artist has made available for the project, GANDY DANCERS at 15 inches high in bronze. It is a fine art limited edition and comes with a beautiful wooden base with plaque. This is not contributed services, but a $6,000 value plus the generated income from such a work. 6-7 Exhibit C INSURANCE REQUIREMENTS: Operation & Maintenance Contracts The Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to properly which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, employees or subcontractors. Minimum Scope of Insurance. Coverage shag be at least as broad as: 1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). 2. Insurance Services Office form number CA 0001 (Ed. 1187) covering Automobile Liability, code 1(any auto). 3. Workers' Compensation insurance as required by the State of California and Employers Liability Insurance. Minimum Limits of Insurance. Contractor shag maintain Omits no less than: 1. General Liability: $1,000,000 per occurrence for bodily "injury, personal injury and property damage. If Commercial General Liability or other form with a general aggregate Omit is used, either the general aggregate limit shag apply separately to this project/location or the general aggregate limit shag be twice the required occurrence limit 2. Automobile Liability. $1, 000,000 per accident for bodily injury and property damage. 3. Employers Liability. $1,000,000 per accident for bodily injury or disease. Deductibles and Self - Insured Retentions. Any deductibles or self- insured retentions must be declared to and approved by the City. At the option of the City, either the insurer scrag reduce or eliminate such deductibles or self- insured retentions as respects the City, its officers, officials, employees and volunteers; or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Other Insurance Provisions. The general Oabitity and automobile liability policies are to contain, or be endorsed to contain, the following provisrons: 1. The City, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Contractor, products and completed operations of the Contractor, premises owned, occupied or used by the Contractor, or automobiles owned leased, hired or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, official, employees, agents or volunteers. 2. For any claims related to this project, the Contractors insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self- insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Contractors insurance and shall not contribute with it 3. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers. 4. The Contractors insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the Omits of the insurers liability. 5. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, cancelled by either party, reduced in coverage or in Omits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. 6. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. Acceptability of Insurers. Insurance is to be placed with insurers with a current AM. Best's rating of no less than AVII. Verification of Coverage. Contractor shall furnish the City with a certificate of insurance showing required coverage. Original endorsements effecting general liability and automobile liability coverage are also required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences. Subcontractors. Contractor shag include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. Al coverages for subcontractors shag be subject to all of the requirements stated herein. G —/a