HomeMy WebLinkAboutJoyce Aiken Agreement for Refurbishment of Artworks by Artist at Fulton Mall=o
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CITY OF FRESNO
AGREEMENT FOR REFURBISHMENT OF ARTWORKS
BY ARTIST
THIS AGREEMENT, is made by and between the City of Fresno, a municipal
corporation ("City") and Joyce Aiken ("Artist").
WHEREAS, City owns artwork created by the Artist located in the Fulton Mall
(the "Mall") titled Mosaic Benches (the "Artwork"); consisting of eighteen mosaic
panels on two sides of nine benches.
WHEREAS, City is proceeding with the important public project of
rehabilitating the Mall (the "Mall Rehabilitation Project");
WHEREAS, due to the Mall Rehabilitation Project the Artwork must be
relocated from its current location in the area of the Mall to another location in the
area of the Mall (the "Relocation Site"), equally accessible by the public in the
general location as shown on Exhibit A, attached hereto and incorporated herein by
this reference, subject to reasonable modifications by City (the "Relocation Work");
WHEREAS, the Artwork is also in need of a degree of refurbishment, which
includes cleaning and repair (the "Refurbishment Work");
WHEREAS, pursuant to California Art Preservation Act (Civil Code section
987) ("CAPA") and the Federal Visual Artist Rights Act (17 USC section 1064 and
portions of sections 107 and 113) ("FVARA"), Artist has the right to perform the
Relocation Work and Refurbishment Work, subject to a schedule and fee acceptable
to City, and she has indicated a desire to exercise her right to complete only the
Refurbishment Work;
WHEREAS, the timely completion of the Refurbishment Work is essential to
the successful completion of the Mall Rehabilitation Work; and
WHEREAS, City and Artist wish to have the Refurbishment Work be
governed by the mutual obligations, covenants and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants hereinafter set forth, the parties agree as follows:
1. The parties agree the Artwork shall be relocated generally to the
location described on Exhibit A by the City's Contractor, subject to final approval of
City's Project Manager.
2. Artist agrees, solely for the fee set forth in Section 4., below, to
complete the Refurbishment Work within 45 Calendar Days from a written Notice to
Proceed from the City and to comply with the following schedule:
City of Fresno
Fulton Mall Artwork Agreement
Mosaic Benches
Page 2ol 16
The parties understand the time for planning and completing Refurbishment Work
shall be extended for such period of time as Artist may be disabled by illness
preventing progress of the Artwork, or in the event delay is caused by events beyond
the control of Artist, including only fire, theft, strikes, shortages of materials (provided
Artist has timely ordered the materials), a supplier default and act of nature. The just
stated provisions relating to extensions of time of completion are subject to the
termination provisions set forth in Paragraph 7,
3. Relocation/Site Preparation City shall be responsible for preparation of
the Relocation Site and for the completion of the Relocation Work (collectively, the
"Site Preparation") and notify Artist, in writing, when the Site Preparation is
completed.
4. Fee and Payment Schedule City shall pay Artist a total all-inclusive fee
of Forty Five Thousand Dollars ($ 45,000.00)for the Refurbishment Work (the "Total
Fee"). Such fee includes all overhead, materials, labor, insurance, shipping,
Artist shall
Project
approval
submit to City's
Manager for
Refurbishment
"Final Design")
plan for
Work (the
On or before 15
days after the notice
of completion of the
Site Preparation, as
defined in Section 3.
Step 2 Artist shall commence the
Refurbishment Work.
Commence shall mean when
Artist has actually expended
$1000 in hard costs on the
Refurbishment Work
Within 15 days after
City's Project
Manager sends a
written notice to
proceed (the
"Notice to
Proceed") to Artist,
which notice shall
follow Gity's Project
Manager's approval
of the Final Design.
Artist shall have completed
the Refurbishment Work.
Completed shall mean when
the Artwork is ready for
public display.
Within 45 working
days after the
Notice to Proceed
Gity of Fresno
Fulton Mall Artwork Agreement
Mosaic Benches
Page 3 of 16
installation, travel, taxes, preparation of proposals and reimbursable expenses. The
schedule of payment for such fee shall be as follows:
a. Fifteen Thousand Dollars ($1S,OOO.O0) upon City's issuance of the notice
of completion of the Site Preparation;
b. Fifteen Thousand Dollars ($15,000.00) upon satisfactory completion of
Fifty Percent (50%) of the Refurbishment Work;
c. Fifteen Thousand Dollars ($ 1S,OOO.00) upon satisfactory completion of
the Refurbishment Work.
5. Billinq ln lieu of billing submitted by Artist to City, Artist shall submit to
City 1O-days advance notice of the occurrence of each above described event
requiring payment. Within 1O-days Artist and City's Project Manager shall confer to
confirm occurrence of the event calling for payment. Once the confirmation is made
the Artist shall submit a billing to City prior to each applicable scheduled payment
date and such billing shall be reviewed by City's Project Manager. Upon his/her
determination such billing accurately reflects work satisfactorily completed to date,
payment shall be authorized and made through City's normal disbursement
procedure. All checks for this project shall be made payable to Artist.
6. lnsurance Throughout the life of this Agreement, Artist shall pay for
and maintain in full force and effect all insurance as required in Exhibit B or as may
be authorized in writing by City's Risk Manager or his/her designee at any time and
in his/her sole discretion.
7. Citv's Riqht to Terminate City shall have the right to terminate this
Agreement if after ten-days' (1O-days') notice, Artist fails, without cause, to meet the
schedule set forth in Paragraph 2. Termination pursuant to this Paragraph shall not
terminate the provisions set forth in this Paragraph or in Paragraphs 9, 11,14, and
15. ln the event of termination of this Agreement, Artist shall return all payments
made pursuant to Paragraph 4. Artist shall be paid compensation for services
satisfactorily performed prior to the effective date of termination, but shall not be paid
for any work or services performed or costs incurred which, within City's sole
discretion, could have reasonably been avoided. ln addition, City shall have the
right to keep copies of the Final Design or preliminary drafts of the Final Design, to
complete the Relocation and Refurbishment Work and exhibit and Artwork and to
exercise all the rights established by this Agreement.
8. Artist' Right to Terminate Artist shall have the right to terminate this
Agreement, if City fails to substantially perform its obligations after ten-days' (10-
days') written notice from Artist, which specifically identifies the obligations, which
are then outstanding. lf this Agreement is terminated pursuant to this Paragraph,
then Artist shall returns all payments made pursuant to Paragraph 4. Artist shall be
paid compensation for services satisfactorily performed prior to the effective date of
Gity of Fresno
Fulton Mall Artwork Agreement
Mosaic Benches
Page 4 of 16
termination, but shall not be paid for any work or services performed or costs
incurred after the effective date of termination, which, within City's sole discretion,
could have reasonably been avoided. City shall have the right to keep copies of the
Final Design or preliminary drafts of the Final Design, to complete the Relocation
and Refurbishment Work and exhibit and Artwork and to exercise all the rights
established by this Agreement.
9. Alteration of Artwork City agrees if any alteration of any kind occurs to
the Artwork after receipt and installation, whether done by City or others, then the
Artwork shall no longer be represented to be the Artwork of Artist without written
consent. No alteration shall be made, except in emergency situations, without first
giving Artist thirty-days' (3O-days') written notice of such alteration.
10. Maintenance of Artwork City agrees to see the Artwork is properly
maintained. Any and all relocation, repair and restoration, during the lifetime of
Artist, shall be made only after reasonable good faith attempts have been made to
give Artist notice of the need of such repairs and restoration, and Artist shall be
given the opportunity to accomplish such relocation, repair and restoration; provided,
that the parties agree, within ninety (90) days after such notice, to a fee and
schedule for such service. lf no agreement is reached within ninety (90) days after
such notice, then City may proceed with the relocation, repair and restoration.
Artist shall retain all rights under Visual Arts Acts Act of 1990 (17 U.S.C. $1064 and
113(d), the California Art Preservation Act (Cal. Civ. Code 5987), or any other local,
state, foreign or international law, as currently drafted or as may hereafter be
amended.
11. Assiqnment Neither party hereto shall have the right to assign this
Agreement without the written approval of the other party.
12. Cooperation with Artist All City staff shall work cooperatively with Artist
and Artist shall work cooperatively with all City staff. ln addition, Artist shall work
with City staff in locating the exact placement of elements of the Artwork.
13. Liquidated Damaqes lf Artist's actions or inactions cause a delay in
the completion of the Mall Rehabilitation Project, except for the delays described in
Paragraph 2, then Artist shall pay City liquidated damages in the amount of One
Hundred Dollars ($100.00) per day for each day, or portion thereof, of delay in the
completion of the Mall Rehabilitation Project which results from Artist's actions or
inactions. This Paragraph shall not apply to any delays caused by contractors or
subcontractors not under contract with Artist.
14. Hold Harmless Artist agrees to and hereby does hold harmless,
defend and indemnify City and each of its officers and employees from and against
any and all losses, claims, demands, damages, liabilities, obligations, costs, and
expenses, of any nature whatsoever, including court costs and reasonable attorney's
fees, arising out of or incurred in connection with Artist's work hereunder; provided
City of Fresno
Fulton Mall Artwork Agreement
Mosaic Benches
Page 5 of 16
that, this Paragraph shall apply until one year after the final payment, pursuant to
Paragraph 4; and provided, further, that the obligation to indemnify and hold
harmless shall only be to the extent Aftist causes the Damages.
15. Warrantv Artist warrants the Artwork against defects in materials and
workmanship for one year after the date of completion of installation and will replace
or repair any part of the Artwork shown to be defective during that period at no cost
to City. City shall notify Artist, in writing, as soon as possible upon discovery of a
defect.
16. Successors This Agreement shall be binding upon the parties hereto,
their heirs, successors, permitted assigns and personal representatives, and
references to Artist and City shall include their heirs, successors, permitted assigns
and personal representatives.
17. Waivers A waiver of any breach of any of the provisions of this
Agreement shall not be construed as a continuing waiver of other breaches of the
same or breaches of other provisions hereof.
18. Notices All notices shall be sent to the addresses set forth at the end
of this Agreement. Each party shall give written notification of any change of address
prior to the date of such change. Any notices required to be given pursuant to this
Agreement shall be deemed completed upon deposit in the U.S. Mail, first class
postage paid.
19. Dispute Resolution ln the event of a dispute between the parties in
connection with the performance of work hereunder, prior to the initiation of any
litigation, the dispute shall be submitted to at least one good faith session of non-
binding mediation, in accordance with the Mediation Rules of the American
Arbitration Association.
20. Attornev's Fees lf any litigation is brought to enforce any provision of
this agreement, then the prevailing party shall be entitled to an award of reasonable
attorney's fees and court costs.
21. Headinq All paragraph headings are inserted for convenience only and
shall not affect any construction or interpretation of this Agreement.
22. Entire Aqreement This Agreement constitutes the entire
understanding between the parties and its terms can be modified only by an
instrument in writing signed by both parties.
23. Governinq Law This Agreement shall be governed by the laws of the
State of California.
Gity of Fresno
Fulton Mall Artwork Agreement
Mosaic Benches
Page 6 of 16
24. Effective Date The effective date of this Agreement is November 1,
2015.
25. Extent of Agreement. This Agreement constitutes the entire
understanding between the parties regarding the subject matter hereof and its terms
can be modified only by an instrument in writing signed by both parties.
City of Fresno
Fulton Mall Artwork Agreement
Mosaic Benches
Page 7 ol 16
City of Fresno
a California municipal corporation
By
Attest:
YVONNE SPENCE, CMC
City Clerk
By to/tt/ts
Approved as to form:
DOUGLAS T. SLOAN
City Attorney
Addresses:
City of Fresno
Attention: Randall Morrison
2600 Fresno Street
Fresno, CA 93721
Telephone: (559) 621-8703
160016
Artist: Joyce Aiken
Artist
Attention: Joyce Aiken
3774W. Buena Vista
Fresno, CA 93711
Telephone: (559) 261 -2482
City of Fresno
Fulton Mall Artwork Agreement
Mosaic Benches
Page 14 of 16
Exhibit B
INSURANCE REQUIREMENTS
AGREEMENT FOR REFURBISHMENT OF ARTWORKS
BY ARTIST
MOSAIC BENCH ES ARTWORKS
Artist shall pay for and maintain in full force and effect all policies of insurance
required herein with an insurance company(ies)either (i) admitted by the California
lnsurance Commissioner to do business in the State of California and rated not less
than "A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by the City's Risk
Manager or his/her designee. The following policies of insurance are required and
shall maintain limits of liability not less than those amounts stated below, however,
the insurance limits available to the City of Fresno, its officers, officials, employees,
agents and volunteers as additional insured's, shall be the greater of the minimum
limits specified herein or the full limit of any insurance proceeds available to the
named insured.
1. COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(¡ii) $2,000,000 aggregate for products and completed operations; and,
(iv) $2,000,000 general aggregate applying separately to the work
performed under the Agreement.
2. PERSONAL AUTOMOBILE LIABILITY insurance with limits of liability not
less than:
(i) $100,000 per person;
(i¡) $300,000 per accident for bodily injury; and,
(iii) $50,000 per accident for property damage.
3. WORKERS'COMPENSATION insurance as required by the State of
California and EMPLOYERS' LIABILITY insurance with limits of $1,000,000
each accident, $1,000,000 disease each employee and $1,000,000 disease
policy limit.
4. *ENDORSEMENTS: All non-lSO endorsements amending policy coverage
shall be executed by a licensed and authorized agent or broker. The City
shall be furnished with the Certificate(s) and applicable endorsements
for ALL required insurance fourteen (14) days prior to commencement
of the work under this Agreement.
Gity of Fresno
Fulton Mall Artwork Agreement
Mosaic Benches
Page 15 of 16
5
6
l. All policies of insurance required herein shall be endorsed to provide that
the coverage shall not be cancelled, non-renewed, reduced in coverage
or in limits except after thirty (30) calendar day written notice by certified
mail, return receipt requested, has been given to the City. The insured is
also responsible for providing written notice to the City under the same
terms and conditions. Upon issuance by the insurer, broker or agent of a
notice of cancellation, non-renewal or reduction in coverage or in limits,
insured shall furnish the City with a new Certificate and applicable
endorsements for such policy(ies).
ll. The General Liability and Automobile policy shall name the City of
Fresno, its officers, officials, agents, employees and volunteers as
additional insured's.
The coverage shall contain no special limitations on the scope of
protection afforded to CITY, its officers, officials, employees, agents and
volunteers. Any available insurance proceeds in excess of the specified
minimum limits and coverage shall be available to the Additional lnsured.
For any claims related to this Agreement, Artist insurance coverage shall
be primary insurance with respect to the CITY, its officers, officials,
employees, agents and volunteers. Any insurance or self-insurance
maintained by the CITY, its officers, officials, employees, agents and
volunteers shall be excess of Artist insurance and shall not contribute
with it. Artist shall establish primary and non-contributory status by using
ISO Form CG 20 01 04 13 or by an executed manuscript insurance
company endorsement that provides primary and non-contributory status
as broad as that contained in ISO Form CG 20 01 04 13.
lll. Any Workers' Compensation policy shall contain a Waiver of Subrogation
as to city of Fresno, its officers, officials, agents, employees and
volunteers.
PROVIDING OF DOCUMENTS: Upon request of City, the insured shall
immediately furnish City with a complete copy of any insurance policy required
under this Agreement, including all endorsements, with said copy certified by
the undenruriter to be a true and correct copy of the original policy. This
requirement shall survive the expiration or termination of this Agreement.
lf the Professional Liability (Errors & Omissions) insurance is written on a
claims-made form:
(i) The retroactive date must be shown and must be before the effective
date of the Agreement or commencement of work.
(ii) lnsurance must be maintained and evidence of insurance must be
provided for at least five (5) years after completion of the Agreement
Gity of Fresno
Fulton Mall Artwork Agreement
Mosaic Benches
Page 16 of 16
work or termination of the Agreement, whichever occurs first, or, in the
alternative, the policy shall be endorsed to provide not less than a five
(5) year discovery period.
lf coverage is cancelled or non-renewed and not replaced with another
claims-made policy form with a retroactive date prior to the effective
date of the Agreement or commencement of work, "extended
reporting" coverage must be purchased for a minimum of five (5) years
after completion of the Agreement work or termination of the
Agreement, whichever occurs first.
A copy of the claims reporting requirements must be submitted to CITY
for review.
(v) These requirements shall survive expiration or termination of the
Agreement.
lf Artist should subcontract all or any portion of the services to be performed
under this Agreement, Artist shall require each subcontractor/subconsultant to
provide insurance protection, as an additional insured, to the CITY and each of
its officers, officials, employees, agents and volunteers in accordance with the
terms of this Agreement. Any subcontractor/subconsultant shall establish
additional insured status for CITY, its officers, officials, employees, agents and
volunteers by using lnsurance Service Office (lSO) Form CG 20 1011 85 or
both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript
company endorsement providing additional insured status as broad as that
contained in ISO Form CG 20 1011 85.
ln the event Artist purchases an Umbrella or Excess insurance policy(ies) to
meet the "Minimum Limits of lnsurance", this insurance policy(ies)shall "follow
form" and afford no less coverage than the primary insurance policy(ies).
Artist shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and Artist shall also be responsible for
payment of any self-insured retentions. Any deductibles or self-insured
retentions must be declared on the Certificate of lnsurance and approved by
the CITY's Risk Manager or his/her designee.
* NOTE: A Certificate of lnsurance is not acceptable in lieu of the
additional insured and/or Waiver of Subrogation endorsements required
above.
(i)
(v)
7
8.
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