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HomeMy WebLinkAboutC33500 - COV Public Artwork Artist TeamCush Art Studio CARLOS ORTEGA - DESERT WILLOW cushartstudios 2014 October 2, 2014 Team Cush Cush Art Studio October 2, 2014 "Successful" ""Dedicated Community Leader" "Good role model for the human race" "Just a man, doing the best he can to contribute to the community" "Fly me to the moon" "Twinkle in his eye" "The bottom line is" "Supportive leadership" Carlos Ortega- Desert Willow sample board image cushartstudio Ccwlo' Ortect' Dedicated Community Leader "From The Heart" Mosaic Artwork for the Carlos Ortega Villas Kessler Studios, Inc. Loveland, Ohio North Elevation 7' x 9'6" 67sf Stained glass tessera: Page 2 of 7 Kessler Studios, Inc.. 273 East Broadway Loveland, OH 45140 513-683-7500 www.kesslerstudios.com Page 5 of 7 Installation Cross Section Wood Studs Plywood Plaster Metal Edging L Mosaic Material (glass tessera on mesh) Weight: 4 5 Ibs/ sq. ft. 270 350 (381bs/LF) Kessler Studios, Inc.. 273 East Broadway Loveland, OH 45140 513-683-7500 www.kesslerstudios.com CONTRAC� N0. C33500 CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT STAFF REPORT REQUEST: SELECT ONE ARTIST TEAM TO CREATE PUBLIC ARTWORK FOR THE CARLOS ORTEGA VILLAS, AND AWARD CONTRACT IN THE AMOUNT OF $30,000 TO SELECTED ARTIST. SUBMITTED BY: Deborah Schwartz Glickman, Management Analyst DATE: October 23, 2014 CONTENTS: Artwork Proposals from Cush Art Studio; Kessler Studios, Inc.; and Showcase Mosaics Draft contract Recommendation By Minute Motion: 1) Select a proposal for the public art component for ** the Carlos Ortega Villas; 2) authorize Mayor to sign Agreement for Commission of Public Artwork in the amount of $30,000. Funds will be disbursed from Account Number 436-4650-454-4001. Commission Recommendation At its meeting of October 8, 2014, the Art in Public Places (AIPP) Commission recommended with a vote of 5-0-0, with Commissioners Blalock and Hough absent, to rank the finalists' proposals in the following order: 1. Showcase Mosaics; 2.Kessler Studios, Inc.; 3. Cush Art Studio. Backqround At their meetings of April 9 and April 24, 2014 respectively, the Art in Public Places (AIPP) Commission and City Council approved issuing a call for artists for a glass or tile mural for the exterior of the Community Building at the future Carlos Ortega Villas. The call was released in late April 2014, and qualifications were due by June 30. Staff received qualifications from thirty-two (32) artists from across the United States and Puerto Rico. The Art in Public Places Commission reviewed the sets of qualifications and selected three (3) finalists to be paid an honorarium of $1,000 each to create a proposal for a tile or glass mural for the Carlos Ortega Villas. The three (3) selected finalists are Cush Art Studio; Kessler Studio, Inc.; and Showcase Mosaics. Each of the three (3) finalists was sent information on Carlos Ortega's life as well as a DVD that was created upon Mr. Ortega's retirement from the City. Each artist team also CONTRACT N0. C33500 Staff Report Artwork for Carlos Ortega Villas Page 2 October 23, 2014 spoke with Mrs. Rosemary Ortega and Councilmember Jean Benson, either via phone or in person to learn more about Mr. Ortega. The finalists were also offered the opportunity to speak with two City of Palm Desert staff inembers who worked closely with Mr. Ortega. On October 8, 2014, the finalists presented their proposals to the AIPP Commission with Mrs. Ortega and Councilmember Benson in the audience to provide feedback to the commissioners. The AIPP Commission selected the proposals in the above order of preference. Fiscal Analvsis If approved, the selected artist team would be paid $30,000 for all aspects of the fabrication and installation of the artwork. The City would be responsible for providing lighting and a plaque for the artwork at a cost yet to be determined. Funds are available in Account Number 436-4650-454-4001. No General Fund monies will be expended. Submitted By: Department Head: , �� ��, S. ��C;�,►,.,,.,., � Deborah Schwartz Glickman Lauri Aylaian Management Analyst Director of Community Development Reviewed: CiTY COUNCiLACTION APPROVF.D �� Di;NIF,D RCCrIVF.D OTHER Paul S. Gibson, Director of Finance Mrr�r��vc nA�rr l - AYF.S: �m�rx�r�i-�1 � �-t�2�QA �T v' Approval: �;�)��; No►� � ' Aj�s��.�vT: _ tJon� at3sTattv: No�. VrRIF,irn �v '�-oK Originat on File with City Cle►•k's Office J hn M. Wohlmuth, City Manager ** Selected�.'Showcase Mosaics Cush /1rl Scudio Octuhcr "l, 'LO1� Narrative of proposal The concept for our art work based on Carlos Ortega's life is inspired by our interview with Rosemary Ortega,Jean Benson and the video of the Palm Desert Rotary Clubs"Citizen of the Decade"ceremony. Mr. Ortega's life and achievements are of epic proportions. Our approach is based on the words used to give tribute to Carlos Ortega from his friends and family and a story told to us by his wife Rosemary.The story speaks to the passion, enthusiasm and dedication Carlos brought to everything he was involved in.The story centers on the Desert Willow golf course's early development stage.On weekends Carlos would bring Rosemary to the Desert willow site, borrow a golf cart and drive out to a view point. He would speak to her of his vision of the plan pointing out the clubhouse location and other features. Description Our Ceramic Tile mural will have 3 main components.The center will be a landscape of Desert Willow golf course looking west to the Santa Rosa Mountain range and a sun set sky.The golf cart is a reference to Carlos and Rosemary's visits to the site. There will be a 6 inch wide border around the landscape.This border will have words and phrases used in tribute to describe Carlos Ortega.The lettering will be sandblasted into the tile surface.We have attached a list of phrases and words to be used.The fonts and size will vary to create the desired visual effect. The 12 inch outside border will be a flowering desert willow motif and will tie into the center mural design.We have provided a sample board of the sand lasted border tile and the outside tile frame of the desert willow motif. The finished tile mural size will be approximately 12 ft.wide by 8 ft.high. This mural size is intended for the parking lot location.Some adjustments in size will be required for the other location. Lighting-There is no lighting plan/budget included in this proposal. Ideally this will be addressed in the site lighting plans for the building once the mural location is determined. Time line-contracting begins October 27, 1014-complete contract October 15,2015 Fabrication will commence when contract and first payment are secured. Completed mural will be stored until installation date is set.Tentative Installation date Sept.1-Oct.15, 2015. Installation Plan: Mural will be installed on existing stucco wall using Mega Flex Crack Prevention Mortar (Custom Building Products).Grout polymer modified sanded,color to be selected.All grout to be sealed to finish. Installation will be coordinated with onsite construction manager and City of Palm Desert designated contact person. Estimated installation time 30 days start to finish. Cush Art Studio Octohcr "l, "L014 Phrases that mav be sand blasted into inner 6 inch tile border "Solid" "Patient" "Compassionate" "Thoughtful" "Humble" "Role model" "Caring" "Loyal friend" "Visionary" "Dedicated servant to the city" "Outstanding" "A gentleman" "Brilliant" "Person of greatest Integrity" "Profoundly intelligent" "Good analytical mind" "A demonstration to the fact that Leadership does not have to be loud" "Professional" "Equal" "An even perspective" "Cool headed, a thinker and a doer" "Smile on his face" "Very sly sense of humor' "Insight and foresight,Visionary" Page 1 of 7 Kessler Studios Proposal "From the Heart"Moseic Artwork An Overview You asked the short-listed artists to design an 8'x12' work of art for either the north or west wall of the Community Building, and while that works comfortably on the western exposure, it dces not do so on the northern. In an effort to best serve the Ortega Villas community, we aze proposing a smaller work of art for the north wall, a beautiful mosaic. This is because the north side is the ideal location with its high visibility to the residential community. The mosaic will be seen by everyone who enters the Community Building, as well as those who drive by. Artwork on the west side would only be viewed by a few. With mosaic artwork, the smaller size is also more appropriate for your budget. Mosaics are made from many, small pieces of glass that are hand set into place, each snugly fitted to the next. �rom a distance, the many pieces blend together to create a unified artistic statement but they reward the viewer with a richly nuanced visual treat upon close inspection. The fabrication process is very time consuming but one that provides that unique dual viewing experience; one of mosaic's many delightful qualities. Page 3 of 7 Ortega Villas "From the Heart" Mosaic Artwork Artist's Statement: The inspiration for the design started with Mrs. Ortega's words in Mr. Ortega's tribute video,"It has been a good life, and it continues to be a good life. We aze blessed." I believe that Mrs. Ortega was speaking of her family with those words, but they apply to a collective "we" as well (all of the Coachella Valley). I thought about what it means to be blessed by another person's work; the impetus for doing what they did, their philosophy and approach to life, their personality and demeanor. As I reflected on what has been written and said about Mr. Ortega, I kept coming back to the concept thaE he truly cared about the well being of others. Everything he did was an effort to better their lives. It wasn't done for personal accolade,or because he was just a very intelligent man performing a job well... no... everything he did came from a wellspring of caring in his heart. This became ihe spiritual foundation for the artwork design and provided its title. Using my Abstract lnterpretative Design approach, I layered this concept and Mr. Ortega's life journey "onto the canvas". The finished work incorporates complex symbolism, but the abstract presentation doesn't hold the viewer to one image or concept. There is room for personal interpretation, and to simply find delight in the artwork's colors and gentle rhythm.The meaning within the piece is revealed on a plaque mounted nearby, just waiting to be discovered, ever ready to provide that "Oh, I see that! That's so cool!" moment. (The wording for the plaque is shown on the next page.) As I worked on the design, 1 considered both Mr. Ortega (his character, work, and spirit) and the future residents of Ortega Villas. Therefore, the design is playful and spontaneous, yet dignified. It is wly a respectful celebration of Mr.Ortega's tife; a life very well lived. The artworlc is designed to joyfully welcome guests, while its organic sofiness and graceful flow provides a soothing sense of calm. The colors within the artwork add a nice accent to the neutral tones of the architecture, while being sensitive to the soft coloration of the desert environment. Materials: The mosaic will be made of richly nuanced cats-paw and opalescent stained glass, fitted snugly together. The grout will be medium brown. The many pieces that comprise the mosaic will catch the light individually, making the light appeaz to dance across the surface as the viewer moves by. This gives the mosaic an undulating, animated quality. Ipstallation: The mosaic will be mortared directly to the plywood substrate,ihe same material onto which the exterior plaster is applied, The plaster contractor will mount metal edging around the artwork site, leaving a recess for the mosaic. Kessler Studios shall install the mosaic into that unfinished section. (A cross-sectional installation drawing is on page S of this packet.)The weight of the mosaic artwork is approximately 270- 3501bs, making its weight insignificant. Maintenance/Durabilitv: The surface of the artwork is vertical and the materials are relatively smooth,thus they will not collect dust. Mortared securely into place, mosaic is a permanent,higtily durable, vinually maintenance free artistic medium. Having been integrated into landscape and architectural settings for centuries, its durability is well proven. Page 4 of 7 Mosaic Plaque "From the Heart" A Tribute to Carios Ortega Carlos Ortega: Carlos Ortega was a Qublic servant in the Coachella Yalley for 31 years,with the last 26 dedicated to the City of Palm Desert. Many tangible accomplishments document his legacy but he is also warmly remembered for his astute leadership, caring mentorship, and the twinkle-in-the-eye with which he approached every venture. The fniits of his labors and indomitable spirit were, and continue to be, a true gift to this valley. Mr. Ortega cared deeply about the well being of all people and improving the entire Coachella Valley for every one of its diverse residents. He served with an unequalled dedication and passion, receiving great personal delight and spiritual reward in return. His labors were never for personal accolade, or just because he was an intelligent man doing a job weU. Everything he did came from a wellspring of caring in his heart; thus the title of the artwork. Symbolism Within the Mosaic Design: Overall, the mosaic is joyful and spontaneous with a refined dignity, qualities that re�lect the essence of Mr. Ortega. The design hints, ever so slightly, at the shape of a heart, because Mr. Ortega's work always came"from the heart". The brown key line suggests the Coachella Valley while the orange forms represent the many autonomous communities within the valley, all of which Mr. Ortega collaborated with harmoniously over the years. The graceful, flowing blue line represents Mr. Ortega's life joumey. The starting point is significant because it is the geographic center of the subtly heari shaped artwork, acknowledging his caring spirit.The line is circuitous,speaking of a young man finding his way. Mr. Ortega grew up in the eastern part of the Coachella Valley and retained a svong connection to its agricultural community throughout his life. He went on to serve his country in Vietnam, and graduated from UC Riverside. Mr. Ortega found his calling in civil service, back home in his beloved southern Califomia. Th�s turning point in his life is represented by the distinct about-turn that the single line makes at the bottom center of the design. From there, the tine bursts forth with playful but controlled exuberance. The rich blue line is joined by another, bearing different shapes and sizes, speaking of the diverse roles he undertook with enviable diplomacy and aplomb. The lines are definitive, bold and conf`ident, yet they also dance gracefully, spreading seeds of inspiration along the way. Carl and Sandra Bryant Showcase Mosaics 1274 Thalen Drive Lynden, WA 98264 (360) 927-5402 infoC�showcasemosaics.com Carlos Ortega Villas Artwork Proposal Concept Our preliminary concept is to create a glass mural that flows from the left side to the right with a celebration of the life, accomplishments and relationships of Carlos Ortega. From the left is a representation of Mr. Ortega, looking over the Coachella Valley and the many people whose lives he touched during his lifetime. It highlights his heart for all people, his efforts to improve the lives of those under his care during his tenure in municipal government. With the hills in the background, the left side focuses upon people that he has influenced and been influenced by. From those who work hard in the fields, to those who toil in engineering, planning and organizing change, to community groups, his colleagues and, of course, his family. The energy of the design moves from this cooperation and human relationships to the accomplishments which were the result of this work. Some of the achievements included in the mural are the flood water channels, the Civic Center Park, shopping districts, Set-to-Save energy savings program, Desert Willow Golf Resort municipal golf course, advanced educational opportunities for the residents of the valley, opportunities for young and mature people alike. This affordable housing project and rare financial security of the area are a direct legacy of his tireless work. It was our pleasure to speak with you all and to learn about Mr. Ortega. He was such an exceptional person; it would have been an honor to know him. We heard from many of you that one of his favorite sayings was "we can do this!" which is included at the bottom of the frame. The style of the work would be representational and could be skewed either more realistically or less so, with more of a Diego Rivera mural feel. We could install the work in either location but the West Elevation would be our preference as it is slightly larger and more of an open space. The work would encompass the 13ft x 8ft space including a surrounding frame of stone molding. Fabrication and installation timeline This glass mosaic mural would be comprised of hand cut pieces of vitreous & stained glass placed to form the proposed design. Color scheme would be vibrant natural colors in a more representational style. The work would be surrounded by a stone border/frame. The artwork will be attached to a substrate of cement board, which will be attached to the wall in the designated location. The work will take approximately three months to fabricate and 5 days to install. We will be available during the most beneficial time in the construction process (including September 1 —October 15, 2015.) There will be no subcontractor used during installation. Contract No. CXXXXX AGREEMENT FOR COMMISSION OF PUBLIC ART WORK THIS AGREEMENT is entered into this 23`d day of October, 2014, by and between the City of Palm Desert, a municipal corporation ("CITY") and John Smith ("ARTIST"). RECITALS WHEREAS, CITY is implementing a public art program pursuant to Chapter 4.10 of Palm Desert Municipal Code, establishing an art in public places program and related development fee in CITY, and pursuant to Ordinances 900 and 936, Ordinances of the City Council of the City of Palm Desert, California, establishing the organization, objectives, and responsibilities of the Palm Desert "Art in Public Places Commission" ("the Commission"), and pursuant to the City of Palm Desert "Art In Public Places" guidelines; and WHEREAS, ARTIST is a recognized professional artist, and CITY acknowledges sufficient familiarity with the style and quality of the ARTIST'S work, and CITY desires ARTIST to create an original work of art ("the Work") for location at the Carlos Ortega Villas ("the Site"). WHEREAS, ARTIST'S concept design ("the Proposal"), which is attached as Exhibit "A", has been reviewed and approved by CITY and is hereby made a part of this Agreement. WHEREAS, CITY desires ARTIST to commence with final design, fabrication, and transportation to, and installation of, the Work on Site. NOW, THEREFORE, CITY and ARTIST, for the consideration and under the conditions hereinafter set forth, and pursuant to the authority, terms, and conditions set forth in Chapter 4.10 of the Palm Desert Municipal Code, Ordinances 900 and 936, and the City of Palm Desert "Art in Public Places" program guidelines, agree as follows. ARTICLE 1: SCOPE OF SERVICES 1-1 GENERAL (a) ARTIST shall perform all services and furnish all supplies, materials, artist and agent travel, and equipment as necessary for the design, execution, fabrication, transportation, and installation of the Work at the Site, and in accordance with the terms in this Agreement. 1-2 THE PROPOSAL (a) ARTIST or designee has prepared and submitted to CITY artwork specifications and presentation drawings of the Work containing the following items, which comprise the "Proposal" in Exhibit "A". 1 Contract No. CXXXXX i. One copy of a written description and technical specifications of the Work on 8.5" x 11" pages including the following information: • Artwork Description; • Materials description of the artwork and site work; • Fabrication and installation procedures; • Budget breakdown; • ARTIST resume or curriculum vitae; • List of proposed subcontractors (those known to date) (b) ARTIST shall commence with fabrication, transportation, and installation of the Work at the Site. In no event shall ARTIST commence procurement of materials or fabrication of work prior to receipt of written authorization. (c) CITY may require ARTIST to make such revisions to the proposed Work as are necessary for the Work to comply with applicable statutes, ordinances, or regulations governing the project. (d) CITY may require revisions of the Work for practical (non-aesthetic) reasons. (e) In the event of a revision initiated by CITY as provided for in 1-2 (d) above, ARTIST fee may be equitably adjusted for any increase or decrease in ARTIST'S cost of, or time required for, performance of such revisions. Any claim of ARTIST for adjustment under this paragraph must be presented to CITY in writing before ARTIST commences the revisions. Within thirty (30) days after receipt of ARTIST'S claim for adjustment, pursuant to this Section 1-2, CITY shall notify ARTIST of its approval or disapproval of such adjustment. CITY may require ARTIST to submit additional revisions until such revisions are accepted by CITY. Revisions made and accepted by CITY pursuant to this Section 1-2 become a part of the final design, technical specifications, fabrication, and installation. 1-3 EXECUTION OF THE WORK (a) Pursuant to Section 1-2 above, ARTIST shall commence fabrication of the Work with such schedules. Although the schedule may be amended by written Agreement between CITY and ARTIST, it is agreed that ARTIST shall substantially complete all of the obligations under this Agreement on or before November 30, 2015. (b) CITY and the Commission shall have the right to review the Work at reasonable times during the fabrication. ARTIST shall submit to CITY and to the Commission progress reports in accordance with the schedule required by Section 1-2. (c) ARTIST shall complete the fabrication and installation of the Work in substantial conformity with the approved Proposal. (d) ARTIST shall present to CITY and to the Commission, in writing, for further review, any "significant changes" in the scope, design, color, size, 2 Contract No. CXXXXX material, or texture of the Work 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 of the Work; or iii. Any change in the concept of the Work as represented in the accepted proposal. (e) If changes reviewed by CITY and Commission are not approved in writing, ARTIST will not resume the Work nor resume the payment schedule until changes to the Work are reviewed and approved by the CITY and Commission. 1-4 DELIVERY AND INSTALLATION (a) Minimum three (3) business days prior to commencement of work at the Site, ARTIST shall notify CITY of schedule for implementation. (b) Prior to delivery and installation of the Work, ARTIST shall notify CITY, and Commission in writing when fabrication of the Work is completed and ARTIST is ready for delivery and installation of the Work to the Site. (c) ARTIST shall provide for completion of the Work in compliance with appropriate codes and the approved schedule. 1-5 POST INSTALLATION (a) Within thirty (30) days after the installation of the Work, ARTIST shall furnish CITY with the following documentation of the Work as installed: i. Four digital images (at 300 dpi) of the completed Work taken from different viewpoints. CITY shall have the right to duplicate and distribute for any noncommercial purpose the artwork documentation supplied by ARTIST under this Agreement; ii. Written instructions for appropriate Maintenance Requirements, Procedures and Preservation of the Work as in Exhibit "B". (b) ARTIST shall be available at such time or times as may be agreed between CITY and ARTIST to attend any inauguration or dedication ceremonies relating to the transfer of the Work to CITY. CITY shall use its best efforts to arrange for publicity for the completed work as may be determined between CITY and ARTIST as soon as is practical following installation. 1-6 FINAL ACCEPTANCE (a) ARTIST shall advise CITY in writing when all services required under this Agreement have been completed in substantial conformity with this Agreement. 3 Contract No. CXXXXX (b) CITY shall notify ARTIST in writing of the final acceptance (or nonacceptance) of the Work. (c) Final acceptance shall be effective as of the earlier of the following dates: i. The date of CITY'S notice of final acceptance; or ii. The 30th day after ARTIST has sent written notice to CITY required under Section 1-6(a) unless CITY, upon receipt of such 30-day notice and prior to the expiration of the 30-day period, gives ARTIST written notice specifying and describing the services that have not been completed. 1-7 RISK OF LOSS The risk of loss or damage to the Work shall be borne by ARTIST until written notice of final acceptance, and ARTIST shall take such measures as are necessary to protect the Work from loss or damages until final acceptance. 1-8 INDEMNITY Upon final acceptance of the Work, ARTIST shall indemnify and hold CITY and the Commission harmless from any and all claims or liabilities then existing or arising thereafter from ARTIST'S negligence or witlful misconduct in connection with the Work. 1-9 TITLE AND ASSIGNMENT OF ROYALTY RIGHTS (a) Title to the Work shall pass to CITY upon final acceptance. ARTIST hereby assigns the right to collect the royalty payment provided by Civil Code Section 986 to CITY and to CITY'S assigns. (b) Except as expressly provided in the Proposal, CITY shall not intentionally damage, alter, modify, or change the Work without the prior written consent of ARTIST. (c) ARTIST acknowledges and agrees that CITY may require the Site for purposes other than the display of the Work. CITY agrees that it will notify ARTIST of any proposed alteration of the Site that would require the removal or relocation of the Work or affect the intended character and appearance of the Work and will consult with 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. ARTICLE 2: COMPENSATION AND PAYMENT SCHEDULE 2-1 AGREEMENT AMOUNT AND PAYMENT (a) CITY shall pay ARTIST an amount not to exceed thirty thousand dollars ($30,000.00), which will constitute full compensation and payment for all services to be performed under this Agreement including final design completion, execution, fabrication, ARTIST and/or agent travel, transportation, coordination, appropriate insurances, subcontractors, studio costs, installation, engineering, taxes, licenses, permits, and any 4 Contract No. CXXXXX other related expenses. Payment shall be made in accordance with the following schedule: Commencement of Final Design Phase Ten percent (10%) Three thousand dollars ($3,000) of the Commission upon selection and approval of City Council. Commencement of Fabrication Fifty percent (50%) Fifteen thousand dollars ($15,000) of the Commission upon commencement of fabrication. Completion/Delivery/Installation of the Work Twentv percent (20%) Six thousand dollars ($6,000) of the Commission installation and final fabrication of the Work. Final Acceptance Twentv percent (20%) Six thousand dollars ($6,000) of the Commission upon completion of all outstanding work and review and approval of Work by CITY. (b) All requests for payment supporting work completed shall be submitted to the Management Analyst II for Public Art in writing for review and approval and must be accompanied with a detailed invoice, original receipts, and other documentation as required by the Management Analyst II for Public Art. (c) Payment shall be issued within 30 days of approval of detailed invoices and requests for payment by the Management Analyst II for Public Art. 2-2 ARTIST'S EXPENSES ARTIST shall be the responsible party for all mailing or shipping charges on submissions to CITY, incidental expenses as described in Section 2-1 (a), and the costs of all travel by ARTIST and ARTIST'S agents and employees necessary for the proper performance of the services required under this Agreement. ARTICLE 3: WARRANTIES 3-1 WARRANTIES OF TITLE ARTIST represents and warrants that: (a) The Work is solely the result of Artistic effort of ARTIST; (b) Except as otherwise disclosed in writing to 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; and (d) The Work is free and clear of any liens from any source whatsoever. 3-2 WARRANTIES OF QUALITY AND CONDITION ARTIST represents and warrants that: 5 Contract No. CXXXXX (a) The execution and fabrication of the Work will be performed in a professional manner (expert, qualified, skilled); (b) The Work, as fabricated and installed, will be free from defects in material (except such defects as are normally present and unavoidable in natural materials and outlined in Proposal) and workmanship, including any defects or qualities which cause or accelerate deterioration of the Work; and (c) Reasonable maintenance of the Work will not require procedures substantially in excess of those described in the maintenance recommendations by ARTIST to CITY; (d) The warranties described in this Section 3-2 shall survive for a period of one (1) year after final acceptance of the Work. CITY shall give notice to ARTIST of any observed breach with reasonable promptness. ARTIST shall, at the instruction of CITY, and at no cost to CITY, cure reasonably and promptly the breach of any such warranty which is curable by ARTIST and which cure is consistent with professional standards, including for example, cure by means of repair or refabrication of the Work as determined by CITY. ARTICLE 4: INSURANCE Artist shall not commence work under this Agreement until he/she has provided evidence satisfactory to the City of Palm Desert that it has secured all insurance required under this section. In addition, Artist shall not allow any subcontractor(s) to commence work on any subcontract until he/she has provided evidence satisfactory to the City that the subcontractor(s) has secured all insurance required under this section. Without limiting ArtisYs indemnification of City, and prior to commencement of Work, Artist shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form that is satisfactory to the City. General Liabilitv Insurance: Artist shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to the Agreement. The City's Risk Manager may consider and approve lower coverage limits in certain circumstances. However, if Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this 6 Contract No. CXXXXX Agreement/location or the general aggregate limit shall be twice the required occurrence limit. Automobile Liabilitv Insurance: Artist shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Artist arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. The City's Risk Manager may consider and approve lower coverage limits in certain circumstances. Workers' Compensation Insurance: Artist shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000). Artist shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City of Palm Desert, its officers, agents, employees, and volunteers. Umbrella or Excess Liability Insurance: Artist may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. In such circumstances, Artist shall obtain and maintain an umbrella or excess liability insurance policy with limits of not less than 4,000,000 that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer's liability. Such policy or policies shall include the following terms and conditions: • A drop down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; • Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; and • Policies shall "follow form" to the underlying primary policies. • Insureds under primary policies shal! also be insureds under the umbrella or excess policies. OTHER PROVISIONS OR REQUIREMENTS Insurance for Subcontractors: All subcontractors shall be included as additional insureds under the Artist's policies, or the Artist shall be responsible for causing subcontractors to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City as an Additional Insured to the subcontractors' policies. Artist shall provide to City satisfactory evidence as required under Insurance Section of this Agreement. Proof of Insurance: Artist shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of 7 Contract No. CXXXXX subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Duration of Coveraqe: Artist shall procure and maintain for the duration of the contract, insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Artist, his/her agents, representatives, employees, or subcont�actors. Citv's Riqhts of Enforcement: In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right, but not the duty, to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Contractor, or City will withhold amounts sufficient to pay premium from Artist payments. In the alternative, City may cancel this Agreement. Acceptable Insurers: All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. Waiver of Subroqation; All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against the City of Palm Desert, its elected or appointed officers, agents, officials, employees, and volunteers or shall specifically allow Artist or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Artist hereby waives its own right of recovery against City of Palm Desert and shall require similar written express waivers and insurance clauses from each of its subcontractors. Enforcement of Contract Provisions (non estoppell: Artist acknowledges and agrees that any actual or alleged failure on the part of the City to inform Artist of noncompliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. Primary and Non-Contributinq Insurance: All insurance coverages shall be primary and any other insurance, deductible, or self-insurance maintained by the indemnified parties shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions. 8 Contract No. CXXXXX Specifications Not Limiting: Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. Notice of Cancellation: Artist agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten [10] day notice is required) or nonrenewal of coverage for each required coverage. Additional Insured Status: General liability, Automobile Liability, and if applicable, Pollution Liability, policies shall provide, or be endorsed to provide, that the City of Palm Desert and its officers, officials, employees, and agents shall be additional insureds with regard to liability and defense of suits or claims arising out of the pertormance of the Agreement, under such policies. This provision shall also apply to any excess liability policies. City's Riqht to Revise Specifications: The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Artist ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Artist, the City and Artist may renegotiate Artist's compensation. Self-Insured Retentions: Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City. Timely Notice of Claims: Artist shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Artist's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. Safe : Artist shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Artist shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions, where applicable, shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, 9 Contract No. CXXXXX gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. Additional Insurance: Artist shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. 4-1 Hold Harmless ARTIST shall indemnify, protect, defend and hold harmless CITY, its officials, employees, agents and representatives from and against any and all losses, liabilities, damages, costs, and expenses, including attorney's fees and costs to the extent same are caused in whole or in part by any negligent or wrongful act, error, or omission of ARTIST, its employees or subcontractors in the performance of art delivery, assembly and installation services under this Agreement. 4-2 Insurance Prior to the beginning of and throughout the duration of the Work, ARTIST will provide the following types and amounts of insurance: (a) General liability — ARTIST shall provide Commercial General Liability Insurance with limits of no less than $1,000,000 per occurrence for all covered losses and $1,000,000 general aggregate. This insurance shall be primary and non-contributing insurance for work performed. ARTIST agrees to endorse general liability coverage required here to include as additional insured CITY, its officials, employees and agents. ARTIST also agrees to require Commercial General Liability Insurance with the same limits for all subcontractors, joint ventures or other parties engaged by or on behalf of Contractor in relation to this Agreement, including any crane or heavy equipment operators. Contractor agrees to provide evidence of the insurance required herein, satisfactory to CITY, consisting of: a) certificate(s) of insurance evidencing all of the coverages required and b) an additional insured endorsement to Contractor's general liability policy using Insurance Services Office form CG 20 10 11 85 or the exact equivalent approved by CITY. (b) Workers' compensation and employer's liability — ARTIST shall provide Workers Compensation and Employer's Liability Insurance on a state-approved policy form providing statutory benefits as required by law with employer's liability limits no less than $1,000,000 per 10 Contract No. CXXXXX accident or disease. This requirement is waived ARTIST has no employees working on the project. (c) Business Auto Coverage ARTIST shall provide Business Auto Coverage with Limits no less than $1,Q00,000 per accident, combined single limit. If ARTIST owns no business vehicles, this requirement may be satisfied by a non-owned auto endorsement to the general liability policy described above. If ARTIST or ARTIST'S employees will use personal autos in any way on this project, ARTIST shall provide evidence of personal auto liability coverage for each such vehicle. (d) Property Coverage ARTIST is responsible for insuring against loss or damage all art materials, elements, sections, pieces of the artwork at ARTIST studio, through transportation to the Site, and during the time any of these materials, pieces, or artwork are being assembled and completed on site. ARTIST is responsible for loss or damage of any part of the artwork while it is under assembly and is responsible for ensuring the safety, security and storage of components, materials, pieces and elements of the artwork, (and tools) at the Site until the artwork is completed, fully installed, and accepted in writing by CITY. ARTICLE 5: COPYRIGHT 5-1 Copyright in the Work and related design, drawings, sketches, and models will be owned by ARTIST until acceptance of ARTIST'S Work by CITY pursuant to Section 1-6 hereof. Nofinrithstanding the foregoing, ARTIST agrees not to make use of such copyright in the Work for any purpose other than the performance by ARTIST of ARTIST'S obligations under this Agreement for Commission of public artwork, without the written consent of CITY. Upon acceptance of ARTIST'S Work pursuant to Section 1-6 hereof copyright in the Work will be owned jointly by CITY and ARTIST and no further use of the copyright will be made by ARTIST or CITY without the written consent of the other, which consent will not be unreasonably withheld. 5-2 ARTIST certifies that the Artwork is a unique work of art especially designed for CITY, and shall not duplicate or reproduce the Work nor shall ARTIST permit others to do so except with the written permission of CITY. 5-3 CITY has the right to reproduce and distribute in printed form and on commercial documents and/or brochures or any other literature of CITY describing or dealing with its real estate holdings, photographs, realistic renderings, videotapes, DVDs, or films of the Work. Such reproductions and use of the images of the Work for promotional purposes shall not 11 Contract No. CXXXXX constitute a breach of copyright and no royalty shall be due and payable by CITY to ARTIST for such use. 5-4 CREDIT TO THE ARTIST All reproductions of the Work by CITY shall contain a credit to ARTIST. 5-5 CREDIT TO THE CITY ARTIST shall use his/her best effort to give credit in any public showing under ARTIST'S control of illustrations of the Work as follows: "An original work owned and commissioned by the City of Palm Desert, California." ARTICLE 6: ARTIST'S RIGHTS 6-1 MAINTENANCE CITY shall reasonably protect and maintain the Work against the ravages of time, vandalism, and the elements, in accord with the instructions of ARTIST provided for as in Exhibit "B". 6-2 ARTIST REPRODUCTION RIGHTS Pursuant to Article 5, Section 5-1, CITY agrees that ARTIST shall have the right to reproduce and distribute in printed form and on non- commercial educational materials and brochures advertising or promoting ARTIST and ARTIST'S career, finro-dimensional images such as photos, CDs or realistic renderings, video tapes, or films of the Work as installed and formally accepted by CITY. Such reproducfions and use of the images of the Work for promotional and educational purposes shall be deemed to not constitute a breach of copyright in any way and no royalty fee shall be due and payable to ARTIST for such use. Such reproduction and images of the Work for publicity, promotion, and educational purposes shall, to the extent reasonably possible and appropriate, give reference to City of Palm Desert. ARTICLE 7: ARTIST AS INDEPENDENT CONTRACTOR ARTIST shall perform all work under this Agreement as an independent contractor and not as an agent or employee of CITY. ARTIST sha(( not be supervised by any employee or official of CITY nor shall ARTIST exercise supervision over any employee or official of CITY. CITY alerts ARTIST to the provisions of the Labor Code §1771, which may require the payment of prevailing wages. ARTICLE 8: ASSIGNMENT, TRANSFER, AND SUBCONTRACTING Neither CITY nor ARTIST shall assign or transfer any interest in this Agreement without prior written consent of the other. ARTIST may subcontract portions of the services to be provided hereunder at ARTIST'S expense provided that said subcontracting shall not affect the design, appearance, or visuaf quafity of the Work and shall be carried out under the personal supervision of ARTIST, and in accordance with all applicable laws. 12 Contract No. CXXXXX ARTICLE 9: TERMINATION 9-1 DEFAULT If either party to this Agreement shall willfully or negligently fail to fulfill, in a timely or proper 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 giving written notice to the defaulting party of its intent to terminate, specifying the grounds for termination. The defaulting party shall have thirty (30) days after receipt of the notice to cure the default. In the event of default by ARTIST, all finished and unfinished drawings, sketches, photographs, and other products prepared and submitted or prepared for submission by ARTIST under this Agreement shail, at CITY'S option, become CITY property. This, however, shall not relieve ARTIST of liability to CITY for damages sustained by CITY by virtue of any breach of this Agreement by ARTIST. In addition to all other remedies, CITY may reasonably withhold payments to ARTIST until such time as the exact amount of damages due CITY from ARTIST is determined. 9-2 SUSPENSION OR TERMINATION OF PROJECT This Agreement may be suspended or terminated by CITY upon not less than seven (7) days written notice to ARTIST for CITY'S convenience and without cause. In the event of such termination, ARTIST shall be compensated for services performed prior to notice of termination and for materials purchased prior to notice of termination, provided that the value of services and materials exceeds the payments made to date by CITY. ARTIST shall furnish CITY with all records necessary to establish value of Work performed and materials purchased, including paid invoices, travel records, receipts, timecards, and other reasonably requested documents. In no event shall CITY pay ARTIST for work not authorized. ARTICLE 10: MANAGEMENT ANALYST II FOR PUBLIC ART AND CONTRACT ADMINISTRATOR The Contract Administrator for this Agreement shall be the Management Analyst II for Public Art of the City of Palm Desert, or his/her designee. ARTICLE 11: NON-DISCRIMINATION In carrying out the performance of the services designated, ARTIST shall not discriminate as to race, religion, sex, age, sexual orientation, national origin, or the presence of any physical, mental, or sensory handicap. ARTICLE 12: COMPLIANCE ARTIST sha(I be required to comply with all federal and state laws and CITY statutes, ordinances, and regulations applicable to the performance of ARTIST'S services under this Agreement, including but not limited to, Chapter 4.10 of the 13 Contract No. CXXXXX Palm Desert Municipal Code, Ordinances 900 and 936, and City of Palm Desert "Art in Public Places" guidelines. ARTICLE 13: ENTIRE AGREEMENT 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 the subject matter hereof that are not merged herein and superseded hereby. ARTICLE 14: MODIFICATION No alternation, change, amendment, or modification of the term of this Agreement shall be valid, unless made in writing and signed by both parties hereto and approved by appropriate action of CITY and the Commission. ARTICLE 15: WAIVER No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants, or conditions in this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right nor an acceptance of performance. ARTICLE 16: 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. ARTICLE 17: HEIRS AND ASSIGNS This Agreement shall be binding upon and shall inure to the benefit of CITY and of ARTIST and of their respective heirs, personal representatives, successors, and permitted assigns. ARTICLE 18: DEATH OR INCAPACITY OF ARTIST In the event of ARTIST'S physical incapacity or death prior to the completion of the Artwork, all payments made up to the point of incapacity or death will be retained by ARTIST and all work performed to date of incapacity or death will be compensated. Upon payment to compensate ARTIST or ARTIST'S estate for all work performed to the date of incapacity or death, the incomplete Artwork and any materials paid for by City will become the property of City. However, if the Artwork is substantially designed and/or completed and it is feasible for the work to be fully completed without undue delay, City may elect to proceed under the terms of this Agreement with the written consent of ARTIST'S estate. In the event that City elects to proceed with the completion of the Artwork and has obtained permission from the ARTIST, or his/her estate, all remaining work to be completed in accordance with this Agreement will be delegated to designated person as in Exhibit "C". 14 Contract No. CXXXXX ARTICLE 19: NOTICES 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 duly given upon 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 of Palm Desert John Smith 73-510 Fred Waring Drive 2861 Ivy Street Palm Desert, CA 92260 San Diego, CA 92104 ATTN: Deborah S. Glickman, Management Analyst II for Public Art ARTICLE 20: ATTORNEY'S FEES Should any action or proceeding be brought to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by his respective authorized officers or representatives as of the day and year set forth on page one of this Agreement. CITY OF PALM DESERT ARTIST By: VAN G. TANNER, MAYOR JOHN SMITH, ARTIST ATTEST: APPROVED AS TO FORM: By: RACHELLE D. KLASSEN, CITY ATTORNEY CITY CLERK 15 Contract No. CXXXXX EXHIBIT B: Maintenance Requirements, Procedures, and Preservation Artist Name: John Smith Please specify maintenance procedures or methods as to how you would like the City to maintain the artwork titled "Sculpture" as presented by Artist John Smith. Procedure of maintenance as described by Artist: Artist Name Artwork Title Date 16 Contract No. CXXXXX Exhibit "C": Designated Beneficiary of Artist in case of Death or Incapacity of Artist Please provide the Name, Address, and Phone Number of your designated beneficiary. 17