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HomeMy WebLinkAboutContracts & Agreements_253-2016CITY OF RE, DLANDS ARTIST AGREEMENT This Artist Agreement ("Agreement") is made and entered into this 20«' day of December, 2016 (Effective Date), by and between the City of Redlands, a municipal corporation (the "City"), and Dan and Dina Romero (the "Artist"). The City and the Artist are herein individually referred to as "Party" and collectively referred to as the "Parties." WITNESSETH WHEREAS, the City desires to retain the services of an artist to provide those services as set forth in Attachment A —Scope of Work ("Work"); and WHEREAS, the City issued a Request for Proposals seeking proposals for such Work; and WHEREAS, Artist was selected by the City and represents that they possess the skills necessary to complete the Work; NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained, it is mutually agreed between the Parties as follows: ARTICLE 1. SCOPE OF SERVICES 1.1 Duties. a. The Artist is hereby retained to perform all services and furnish all supplies, materials, outside expertise and equipment necessary for the completion of the Work as described in Attachment A and for completion of the foregoing in accordance with the schedule of completion set forth in Attachment A. The Work shall be completed in a professional manner and in strict compliance with all the terms and conditions of this Agreement. The Artist's Work shall be reviewed and be subject to approval and acceptance of completion by the City and other applicable City departments or outside agencies, where appropriate and in the sole discretion of the City. b. The Artist shall be responsible for complying with all Federal, State and local laws, ordinances, statutes and regulations and for obtaining all required licenses, permits, or other similar authorizations applicable to the performance of the Artist's services under this Agreement. 1.2 Final Acceptance. a. Artist shall advise the City in writing or via electronic mail when all required services for execution of the Work have been completed. b. The City shall notify the Artist in writing of its final acceptance or non-acceptance of the Work and the reasons therefor. C. Artist shall be responsible for promptly resolving the reasons for non-acceptance of the Work as indicated by the City. Bca\djmlAb eements\Romero Artist Agreement 12.20.16.docx d. Final acceptance is effective on the date of City's written notification of final acceptance or 30 days after Artist has sent City written notice of completion, whichever first occurs, unless City, upon receipt of Artist's notice of completion provides Artist, before 30 days have elapsed, with written notice specifying and describing any uncompleted services. ARTICLE 2. COMPENSATION AND PAYMENT SCHEDULE 2.1 Artist Compensation. The City shall pay to the Artist an amount not -to -exceed $65,000 (Sixty -Five Thousand Dollars) as full compensation for all services to be performed and materials to be furnished by the Artist under this Agreement. The compensation shall be paid as described in Attachment B of this Agreement. All requests for payment must be accompanied by a detailed invoice as a condition of payment. The Artist shall provide the City with the Artist's Tax Identification Number and any proof of such number as requested. 2.2 Artist's Expenses. The Artist shall be solely responsible for all labor, materials and equipment necessary for completion of the Work, and for all expenses including, without limitation, costs of all travel by the Artist and the Artist's agents and employees, for proper performance of the services required under this Agreement. Any State or Federal sales, use or excise taxes or similar charges relating to the services and materials under this Agreement shall be paid by the Artist. 2.3 Retention and Audit of Records. The Artist shall retain records pertinent to this Agreement and make such records available upon request by the City and/or Auditor General of the State of California, or their representatives, for a period of five years after final payment. ARTICLE 3. TIME OF PERFORMANCE 3.1. Notice to Proceed. The Artist shall commence the Work upon the City's delivery to the Artist of a written "Notice to Proceed." 3.2 Duration. The services required of the Artist as set forth in Article 1 shall be completed in accordance with the schedule for the Work's completion, which is attached hereto as Attachment A and incorporated herein by this reference. 3.3 Time Extension. The City agrees to grant reasonable extensions of time to the Artist in the event of delay on z I:Icaldjm\Agreements\Romero Artist Agreement 12.20.16.doex the City's part in performing its obligations under this Agreement or if conditions beyond the Artist's control render the Artist's timely performance impossible or unexpectedly burdensome. Failure to fulfill contractual obligations due to conditions beyond either Party's reasonable control will not be considered a breach of this Agreement, provided that such obligations are suspended only for the duration of such conditions and the Party with knowledge of the condition immediately notifies the other Party, in writing, of such condition. 3.4 Termination. If either Party to this Agreement shall willfully or negligently fail to fulfill in a timely and proper manner or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, the other Party shall have the right thereupon to terminate this Agreement by giving written notice to the defaulting Party of its intent to terminate and, specifically, the grounds for termination. The defaulting Party shall have thirty days after receipt of the notice to cure the default. If the default is not cured within such time period, this Agreement shall terminate. In the event of the City's default, the City shall promptly compensate t he Artist for all services performed by t h e Artist prior to termination, in accordance with the payment schedule described in Article 2. In the event of the Artist's default, all products prepared and submitted or prepared for submission by the Artist under this Agreement shall at the City's option become the City's property. The Artist shall not be relieved of liability to the City for damages sustained b y t h e City by virtue of the Artist's breach of this Agreement. In such event, the City may reasonably withhold payments to the Artist until the exact amount of damages due the City from the Artist is determined. In addition, the City shall retain the right to have the Work completed and shall own all rights in the Work as set forth in Article 5. ARTICLE 4. INSURANCE AND INDEMNIFICATION 4.1 Insurance. The City by this Agreement agrees that it shall not require the Artist to obtain General Liability, Business Auto and Workers Compensation Insurance under this Agreement. The Artist shall be solely responsible for its determination of what insurance coverage, if any, the Artist should retain for performance and completion of the Work. 4.2 Indemnification. The Artist shall indemnify, protect, defend and hold harmless the City, its elected and appointed officials, employees and agents from and against all liabilities, obligations, losses, damages, judgments, costs and expenses, including attorney's fees, court costs and other litigation costs (collectively "Loss") arising from, in connection with or caused by any personal injury or property damage caused, directly or indirectly, by any act or omission of t he Artist or the Artist's employees or agents, or any infringement of patent copyright, trademark, trade secret or other proprietary right caused by the Artist or the Artist's employees, agents, contractors, or subcontractors, in connection with the Work. 3 I:1ca1djm\Agreements\Romero Artist Agreement 12.20.16.docx ARTICLE 5. RIGHTS, OWNERSHIP, AND INTEREST 5.1 Ownership and Moral Rights. All work paid for and produced under this Agreement including, without limitation, all studies, drawings, design and models prepared and submitted under this Agreement, shall be the property of the City upon written final acceptance under Article 1.2. T h e Artist bears the risk of damage to, or loss of, the Work until the City's final acceptance under Article 1.2 and shall take such measures as necessary to protect the Work from damage until final acceptance. The Artist understands that the Work is to be installed on property, at a site upon which the City has the right to locate the Work ("Site") and that it may be integrated into the Site such that it becomes an integral, permanent and site-specific part of the building and/or environment and that the operation, management, or other circumstances of the Site, could result in significant alteration of the Work or Site. For purposes of this Agreement, the term "alter or alteration, " with respect to the Work, shall mean: alter, repair, restore, modify, remove, relocate, sell, dispose of, distort, destroy, mutilate, or deface. The City shall make a reasonable effort to notify and consult with the Artist in the event that the Work produced under this Agreement is in need of alteration and may enter into a separate agreement with t h e Artist to participate in the alteration, but is not obligated to do so. If t h e Artist elects not to participate in, is unavailable, or fails to negotiate a mutually agreeable plan for the alteration of the Work, the City may retain another qualified artist for such alteration of the Work. Regardless, the City retains the right to alter the Work in its sole discretion and without such notification, consultation, approval or participation of the Artist, especially in situations where the Work is integrated into a building, poses a hazard and/or liability, is in conflict with any codes, laws or regulations, and/or cannot be altered due to lack of available funding and/or alternate suitable location. However, if the Work is altered without the Artist's permission or falls below acceptable public display standards, through no fault of the Artist, the Artist retains the right to disavow authorship of the Work with written notice to the City. The Artist waives any and all claims, with respect to the Work produced under this Agreement, arising against the City, its elected and appointed officials, employees and assigns, and owners (current and future) of the Site and its agents, officers and employees, arising under the Federal Visual Artist Rights Act, the California Art Preservation Act, and any other local, State, Federal or international laws that convey rights of the same nature as those conveyed under the California Civil Code or any other type of moral right protecting the integrity of works of art. The City has no obligation to pursue claims against third parties to remedy or prevent alteration of the Work. However, the City, as owner of the Work, may pursue claims against third parties for damages or to restore the Work if it has been altered without the City's authorization. 5.2 Reproduction. The Artist grants to the City and its assigns an irrevocable license and right to duplicate, make, display, and distribute and authorize the making, display, and distribution of reproductions for commercial or noncommercial purposes, including but not limited to advertising, brochures, 4 Llcaldjm\Agreements\Romero Artist Agreement 12.20.16.doex media publicity, educational and promotional materials, postcards, booklets, catalogues and other similar publications without any compensation for the same to the Artist. To the extent this provision constitutes a transfer of the right to reproduction, this Agreement is intended to be and shall be deemed to constitute the document in writing required by California Civil Code Section 982 (c). Reproductions by the City are not required to contain a credit to the Artist, nor any form of copyright notice. The Artist will retain the limited right to reproduce the Work in catalogs or other compilations of the Artist's work and with respect to such limited use, the Artist is not required to give credit to the City in any public showing under the Artist's control. 5.3. Copyright. The Artist assigns to the City all rights under the Copyright Act of 1976 for original works produced under this Agreement. Notwithstanding the foregoing, the City and its assigns are not responsible for defending the Work against any third party infringement of copyright and for protecting the attribution rights of the Artist. Any registration of a copyright under the State's Register of Copyrights shall be the sole responsibility of the City, and the costs of such registration shall be borne by the City. 5.4 Royalty Rights. Title to the Work shall pass to the City upon final acceptance pursuant to Section 1.2. The Artist hereby retains the right to collect the royalty payment provided by Civil Code Section 986. The Artist agrees that neither the City or property owner of the Site are obligated to make any royalty payments to the Artist pursuant to Civil Code Section 986. ARTICLE 6. ARTIST'S REPRESENTATIONS AND WARRANTIES The Artist shall perform all work under this Agreement as an independent contractor and not as an agent or an employee of the City. The Artist shall be supervised by an employee or official of the City but shall not exercise supervision over any employee or official of the City. The Artist represents and warrants that: 1) The Artist is the sole owner of the Work and any copyrights and has the full power to enter into and execute this Agreement; 2) The Work is unique and original and solely the result of the artistic effort of the Artist, except as otherwise disclosed in writing to the City, does not infringe upon any copyright or rights of any person and is free and clear of any liens or disputes related to property, intellectual or any other rights; 3) The Work, or a duplicate thereof, has not been accepted for sale elsewhere. 4) The Work is free from defective, hazardous or inferior materials and workmanship or inherent vice or qualities that cause or accelerate deterioration, except as otherwise disclosed in writing to the City, and will not pose a danger to public health and safety. 5 1:1ca1djm\Agreements\Romero Artist Agreement 12.20.16.docx 5) No person has been employed or retained to solicit or secure this Agreement for commission, percentage, brokerage or contingent fee and that no member of the City has any interest, financially or otherwise in the Artist's business. ARTICLE 7. NOTICES All notices hereunder and communications regarding interpretation of the terms of the Agreement or changes thereto shall be provided by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid and addressed as follows: ARTIST Dan and Dina Romero P.O. Box 507 Mentone, CA 92359 CITY N. Enrique Martinez City Manager City of Redlands 35 Cajon Street Redlands, CA 92373 Any notice so given shall be considered received by the other party three (3) days after deposit in the U.S. Mail, first class postage prepaid, addressed to the party at the above address. Actual notice shall be deemed adequate notice on the date actual notice occunrA regardless of the method of service. ARTICLE S. NON-DISCRIMINATION The Artist shall not discriminate, in any way, against any person on the basis of race, sex, color, age, religion, sexual orientation, disability, ethnicity, national origin, or disability in connection with or related to the performance of this Agreement. ARTICLE 9. ASSIGNABILITY AND MODIFICATION The Artist shall not assign, sublet or transfer any interest in this Agreement nor the performance of any of the Artist's obligations hereunder, and any attempt by the Artist to assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect without the prior written consent of City. The Parties may amend this Agreement to expand or otherwise modify the scope of the Work and this Agreement in a writing signed by both Parties. 6 1:\caldjm\Agreements\Romero Artist Agreement 12.20.16.docx ARTICLE 10. 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. Venue shall be in the County of San Bernardino. ARTICLE 11. ENTIRE AGREEMENT This Agreement, including attachments and the recitals, embodies the entire understanding between the P arties 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. No alteration, change or modification of the terms of this Agreement shall be valid unless made in writing and signed by both Parties. Any waiver of any breach of violation of any term or condition of this Agreement shall not be deemed to be a waiver of any other term or condition contained herein or a waiver of any subsequent breach or violation of the same or any other term of condition. The persons executing this Agreement on behalf of their respective Parties represent and warrant that they have the authority to do so under law and from their respective Parties. [SIGNATURES CONTINUED ON NEXT PAGE] 7 I:1ca\djm\Agreements\Romero Artist Agreement 12,20. 1 6.doex Entered into as of the Effective Date first above written, the Parties hereby execute this Artist Agr=ncnt as follows: ARTIST E.� Dina Romero S 1:1ca\djm\Agreements\Romero Artist Agreement 12.20.16.docx CITY OF REDLANDS kyj ATTEST ] e tonaldson, City Clerk ATTACHMENT "A" SCOPE OF WORK A sculpture generally described as the "Sister Cities Clock Tower"—a site specific, original, high quality public artwork (see picture attached) to be located at Ed Hales Park in the City of Redlands, California. The size of the Sister Cities Clock Tower shall be a minimum dimension of 13'6" wide and 13'6" tall, and a maximum dimension of 16' wide and 16' tall. The Work shall be executed in a manner to include the following elements: • All research, design, fabrication, site preparation (including any modifications to the site proposed by the Artist that are beyond the scope and/or budget of the park site's construction), and installation oversight of the artwork • Clocks and Controllers: Electric Time Co., Medfield, MA o 3 double sided clocks with 24" face, all with custom lettering and numerals o 3 controllers: model 99 B mi automatic clock controllers o 3 graphics work custom • Arch sculpture to house clocks • Rolling Ball Kinetic to include safety leaf gates • A maintenance manual for the Work including all materials, finishing methods, clocks and controllers, and rolling ball kinetic, so that future maintenance and repairs of the clock tower can be made by the City. The Work shall be completed in accordance with the following schedule: a maximum of 7 months from the time of the first payment. 9 L\caldjm\Agreements112omero Artist Agreement 12.20.16.docx DESIGN IN THE CEWTER ARCH ATTACHMENT `B" COMPENSATION AND PAYMENT SCHEDULE The Artist shall execute the Work in accordance with the budget set forth herein. Payment shall be made in accordance with the following scheduled installments, each installment representing full and final payment for all services and materials provided prior to payment thereof. The Artist shall submit a detailed invoice listing the item or task, dates of service, purchase order number and any other relevant information as requested by the City for all requests for payment. First Pam The clock company requires 40% up front to begin building the clocks 33% of labor and shop costs All metals, materials and graphics First payment at beginning of project Second Payment Final 60% to clock company for delivery 33% of labor and shop costs Second payment to be paid at 10 weeks from the City's notice to proceed Third/Final Pam 33% of labor and shop costs, to be paid upon installation of the Work All checks should be made payable to Dina Romero 10 1;%ca\djmlAgreements\Romero Artist Agreement 12.20.16.doex 7,788.00 13,333.00 5,530.00 $ 26,651.00 11,682.00 13,333.00 $ 25,015.00 $ 13,334.00