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HomeMy WebLinkAboutContracts & Agreements_72-2018ARTWORK PURCHASE AND INSTALLATION AGREEMENT This agreement for the purchase and installation of artwoi k ("Agreement") is made and entered into this Pt day of May, 2018 (Effective Date), by and between the City of Redlands, a municipal corporation (the "City"), and John Gilbert Luebtow (the "Artist") The City and the Artist are sometimes individually referred to herein as a "Party" and, together, as the "Parties." RECITALS WHEREAS, in support of the City's Art in Public Places program, on March 13, 2017, the City's Cultural Arts Commission's considered the submission of aitwork from three artists for the purpose of selecting an artwork for installation at the Redlands Civic Center, and WHEREAS, the City's Cultural Arts Commission selected an artwork for the Redlands Civic Centei known as Interiorem Pulchritudineim (the "Artwork") created by the Artist, and WHEREAS, the City's Cultural Arts Commission has solicited donations and raised the necessary funds for the City's purchase and installation of the Artwork; NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained, it is mutually agieed by the Parties as follows AGREEMENT 1 Purchase and Sale. 1 1 The Artist agrees to sell the Artwork, as depicted in Exhibit "A," to the City, and the City agrees to purchase the Artwork froim the Artist 1 2 The City shall pay to the Artist the amount of twenty thousand dollars ($20,000) as full compensation for the Artwork Payment shall be made in two installments of ten thousand dollars ($10,000) each The first installment payment shall be paid prior to installation of Artwork, and the second installment payment shall be paid within ten (10) days after City's acceptance of the Artwork The Artist shall provide the City with the Artist's Tax Identification Number, and any proof of such number as requested, as a precondition for any payment 2 Installation of Artwork 2 1 The Artist agrees to transport and install the Artwork at the City's designated installation site (the "Site") located at the Redlands Civic Center, 35 Capon Street, Redlands, California, in accoidance with Exhibit "B," entitled "Scope of Work " 22 The City agrees to construct the base foundation for the Artwork in accordance with the detailed drawings provided by the Artist as more particularly described in Exhibit 1 11ca\dpn\Agrcements\Luebtow Artwork Purchase Agreement Ver2 docx "B " The base foundation shall be constructed by the City prior to the installation date of the Artwork 23 The Artist shall be responsible foi complying with all Federal, State and local laws ordinances, statutes and regulations, including compliance with prevailing wage statutes of the Cahfoiva Labor Code, and fol obtaining all required licenses, permits, or other similar authorizations applicable to the installation of the Artwoik 3, Insur ante and Indemnification. 3 1 Insurance required by this Agreement shall be maintained by the Artist for the duration of its performance of the Services The Artist shall not perforin any Services unless and until the required insurance listed below is obtained by the Artist The Artist shall provide the City with certificates of insurance and endorsements evidencing such insurance prior to commencement of the Services Insurance policies shall include a provision prohibiting cancellation of modification of the policy except upon thirty (30) days prior written notice to the City A Workers' Compensation and Employer's Liability insurance in the amount that meets statutory requirements with an insurance carrier acceptable to the City, or certification to the City that the Artist is self-insured or exempt from the workers' compensation laws of the State of California The Artist shall execute and provide the City with Exhibit "C" entitled "Workers' Compensation Insurance Certification," which is attached hereto and incorporated herein by this reference prior to installation of the Artwork B Comprehensive General Liability insurance with carriers acceptable to the City. Minimum coverage of one million dollars ($1,000,000) per occurrence and two million dllars ($2,000,000) aggregate for public liability, property damage and personal injury is required The City shall be named as an additional insured and such insurance shall be primary and non-contributing to any insurance or self- insurance elfinsurance maintained by the City C Business Auto Liability coverage, with minimum limits of one million dollars (51,000,000) per occurrence, combined single limit bodily injury liability and property damage liability This coverage shall include all Artist owned vehicles used in connection with the Artist's provision of the Services, lured and non - owned vehicles, and employee non -ownership vehicles The City shall be named as an additional insured and such insurance shall be primary and non-contributing to any insurance or self-insurance maintained by the City 32 The Artist shall indemnify, protect, defend and hold harmless the City, and its elected and appointed officials, officers, employees and agents from and against all liabilities, obligations, losses, damages, judgements, costs and expenses, including attorneys' fees, court costs and other litigation costs, arising from or in connection with, ally personal injury or property damage caused, directly or indirectly, by any act or omission of the Artist of the 2 Luebton Artwork Purchase Agreemeiit Vert doex Artist's employees of agents, or any infringement of patent, copyright, trademark, trade secret or other proprietary right caused by the Artist of the Artist's employees, agents, contractors, or subcontractors, in connection with the Artwork 4 Ownership and Moral Rights 41 The Artwork shall become the pioperty of the City aftei City's acceptance of the Artwork and after the Artist receives the final installment payment from the City 42 The Artist understands that the Artwork is to be installed on the Site such that it becomes an integral, permanent and site-specific part of the City's Redlands Civic Center and that the operation, management, of other circumstances of the Site, could result in significant alteration of the A.rtwoik Fol purposes of this Agreement, the term "alteration," with respect to the Artwork, shall mean alter, repair, restore, modify, remove, relocate, sell, dispose of, distort, destroy, mutilate, or deface I kcaldjnMgrcemcnts! 43 The City shall make a reasonable effort to notify and consult with the Artist in the event that the Artwork is in need of alteration, and may enter into a separate agreement with the Artist to participate in the alteration, but the City is not obligated to do so If the Artist elects not to participate in, is unavailable, or fails to negotiate a mutually agreeable plan for the alteration of the Artwoik, the City may retain another qualified artist for such alteration of the Artwork Regardless, the City retains the right to alter the Artwork in its sole discretion and without such notification, consultation, approval or participation of the Artist, especially in situations where the Artwoik poses a hazard and/oi 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 Artwork 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 Artwork with written notice to the City 44 The Artist waives any and all claims, with respect to the Artwork against the City, its elected and appointed officials, employees and assigns, (current and future) and its agents, officers and employees, arising under the Fedeial 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 of prevent alteration of the Artwork Howevei, the City, as owner of the Artwork, may pursue claims against third parties for damages or to restore the Artwoik if it has been altered without the City's authorization 45 As the owner of the Artwork, the City and its assigns shall have the sole and exclusive right to duplicate, make, display, and distribute and authorize the snaking, display, and distribution of reproductions for commercial or noncommercial purposes, including but not limited to advertising, brochures, media publicity, educational and promotional materials, postcards, booklets, catalogues and other similar publications without any compensation for 3 1 lealdjin\AgreeinentslLuebtow Artworks Purchase Agreement Vert doex the same to the Artist To the extent this provision constitutes a transfer of the iight to reproduction, this Agreement is intended to be and shall be deemed to constitute the document in writing required by California Civil Code Section 98.2 (c) Reproductions by the City are not required to contain a credit to the Artist, nor any form of copyright notice Notweithstanding the foregoing, the Artist will retain the limited right to reproduce the Artwork in catalogs or other compilations of the Artist's work and with respect to such liiriited use, the Artist is not required to give credit to the City in any public showing under the Artist's control 46 The Artist assigns to the City all rights under the Copyright Act of 1976 foi the Artwork pi oduced undei this Agi cement Notwithstanding the foregoing, the City and its assigns are not responsible foi defending the Artwork against any third party infringement of copyright and foi protecting the attribution rights of the Artist Any registration of a copyright undei the State's Registei of Copyrights shall be the sole responsibility of the City, and the costs of such registration shall be borne by the City 47 Owenership of, and title to, the Artwork shall pass to the City upon in accordance with Section 4 1 hereof The Artist hereby retains the right to collect the royalty payment provided by Civil Code Section 986 The Artist agrees that the City is not obligated to make any royalty payments to the Artist pursuant to Civil Code Section 986. 5. Artist's Representations and Warranties. 5 1 The Artist represents and warrants that A The Artist is presently the sole owner of the Artwoik and any copyrights therein, and has the full power to enter into and execute this Agreement and tiansfer the same, unencumbered, to the City B The Artwork is unique and original and solely the result of the artistic effort of the Artist, does not infringe upon any copyright of rights of any person, and is free and cleat of any liens of disputes ielated to property, intellectual of any other rights, C The Artwork, of a duplicate thereof, has not been previously sold, D Tile Artwork is free from defective, hazardous of inferior materials and workmanship of inherent deficiencies or qualities that cause or accelerate deterioration, except as otherwise disclosed in witting to the City, and will not pose a dangei to public health and safety, and E No person has been employed or retained to solicit or secure this Agreement foi commission, percentage, brokerage or contingent fee and that no membei of the City has any interest, financially or otherwise in the Artist's business 4 Luebtow Artwork Purchase Agreement Ver2 docx 6. Notices. Any notice of other communication required, of which may be given, pursuant to this Agreement, shall be in writing Any such notice shall be deemed delivered (i) on the date of delivery in person, (it) five (5) days after deposit in first class registered mail, with return receipt requested, (tit) on the actual delivery date if deposited with an overnight courier, or (iv) on the date sent by facsimile, if confinned with a copy sent contemporaneously by first class, certified, registered or express mail, in each case properly posted and fully prepaid to the appropriate address set forth below, or such other address as a Party may provide notice in accordance with this section CITY City Clerk City of Redlands 35 Cajon Street, Ste 4 Redlands, CA 92373 ARTIST John Gilbert Luebtow 10954 Independence Ave Chatsworth, CA 91311 7 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 of igin, or disability in connection with, or related to, the performance of this Agreement 8 Assignability and Modification The Artist shall not assign, sublet or transfer any interest in this Agreement not the performance of any of the Artist's obligations hereunder, and any attempt by the Artist to assign this Agreement or any i ights, duties of obligations arising hereunder shall be void and of no effect without the prior wi itten consent of the City The Parties may amend this Agreement to expand of otherwise modify the scope of the Artwork and this Agreement in a wi iting signed by both Parties I lcaldj mtAgreeinentsl 9. Governing Law This Agreement 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 10. Entire Agreement This Agreement, including attachtnents and the recitals, embodies the entire understanding between the Parties 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 of modification of the terms of this Agreement shall be valid unless made in writing and signed by the Parties Any waivei 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 of 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 undei law and fiom their respective Parties IN WITNESS WHEREOF, duly authorized representatives of City and Artist have signed in confirination of this Agreement 5 11ci\damlAgree1nents\Liebtow Artwork Purchase Agreement Vert doex ARTIST ATTEST s� Aw�&' i& -Donaldson, City Clerk CITY OF REDLANDS W ��� Paul W Foster, Mayor Luebtow Artwork Purchase Agreement Vert doex EXHIBIT "A" Artwork by John Gilbert Luebtow Intenorem Pulchritudtnetn Tide: Linear form I -Beam Series, #2.19/9, 2015 IVlateflals' Steel I Beam, Stalnless Steel, 1' Thick Kiln Formed Glass Dimanslam, I Beam-15'(feet} ht. x 18' x B" Brushed Stainless Steel Base- 4'x 4' x 2' ht. I Icaldjm\Agreements\Luebtow Artwork Purchase Agreement Ver2 docx EXHIBIT "B" SCOPE OF WORK • Upon City's written notice of an installation date and time, Artist to transport and install hts Artwoik of a glass and steel sculpture generally known as lnteriorem. Putchritudinem (Latin for Inner Beauty) of the Linear I -Beam Series at the Redlands Civic Centei located at 35 Capon Street, Redlands, California • Artist has provided to City the following drawings for construction of the base foundation required for Artwoik and method of attachment of Artwork to such foundation City to construct base foundation prior to the installation date b <. i � � F :.s 1 i • City shall provide and operate installation equipment to lift Artwoik onto installation site SCHEDULE • Installation of the Artwork to be completed by June 22, 2018 8 11ciN(ijm1AgrecmentslLttebtow Artwork Purchase Agreeinent Vert docx EXHIBIT "C" WORKERS' COMPENSATION INSURANCE CERTIFICATION Every employer, except the State, shall secure the payment of compensation in one or more of the following ways (a) By being insured against liability to pay compensation by one or more insurers duly authorized to write compensation insurance in this State (b) By securing from the Director of Industrial Relations, a certificate of consent to selfinsure, either as an individual employei, of as one employee in a group of employers, which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self -insure and to pay any compensation that may become due to his oi. her employees CHECK ONE I airs aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability foi Woikers' Compensation of to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the work and activities required of permitted undet this Agreement (Laboi Code 51861) I affirm that at all times, in performing the work and activities required of permitted under this Agreement, I shall not employ any person in any manner such that I become subject to the workers' compensation laws of California However, at any time, if I employ any person such that I become subject to the workers' compensation laws of California, immediately I shall provide the City with a certificate of consent to self -insure, of a certification of woikers' compensation insurance I certify under penalty of penury under the laws of the State of California that the information and representations made in this certificate are true and coirect ARTIST 9 I Icaldjm\AgreementslLuebtow Artwork Purchase Agreement Vert doex V�JZ �ZAMAM