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HomeMy WebLinkAboutCC Resolution 7790 (Falkirk Cultural Center)RESOLUTION NO. 7790 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AUTHORIZING THE MAYOR AND CITY CLERK TO SIGN AN AGREEMENT WITH ARTIST HEATHER McGILL FOR TEMPORARY PLACEMENT OF A WORK OF ART ON THE GROUNDS OF FALKIRK CULTURAL CENTER (For 2 Years from September 1988 -September -1990) WHEREAS, Falkirk Cultural Center provides the citizens of San Rafael with a rich and varied program of cultural activities including public works of art; and WHEREAS, the National Endowment for the Arts has made a grant available to -Falkirk for an Art -In -Public -Places project called the "Garden Project"; and WHEREAS, Heather McGill was one of three artists chosen by a selection panel convened for the "Garden Project" to construct a work of art on the grounds of Falkirk Cultural Center. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of San Rafael hereby authorizes the Mayor and City Clerk to sign an agreement with artist Heather McGill for temporary placement of an outdoor sculpture on the grounds of Falkirk Cultural Center. I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City the FIRST day of AUGUST , 1988, by the following vote, to wit: AYES: COUNCILMEMBERS: Boro, Breiner, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Frugoli JE M. LEONCI , City Clerk 0R,1V,1NA1 AGREEMENT BETWEEN CITY OF SAN RAFAEL, AND HEATHER MCGILL THIS AGREEMENT, made and entered into this 1st day of Auqust, 1988 between CITY OF SAN RAFAEL (hereinafter referred to as "CITY", and Heather McGill, (hereinafter referred to as McGill). RECITALS MCGILL is an artist who has agreed to design and execute the following work -of -art to be located at FALKIRK CULTURAL CENTER, CITY OF SAN RAFAEL from September 1988 - September 1990. TITLE: DESCRIPTION: As per project proposal, attached. 1. MCGILL'S COMPENSATION. MCGILL shall be paid an honorarium of $400 for the proposal and $600 for the work of art; $400 of this amount will be paid upon execution of this contract, and the remainder upon submission of the Final Form in accordance with Paragraph 11. In addition, CITY shall compensate MCGILL up to $3,000 for materials. $500 of this amount shall be paid upon execution of this contract, with an additional $2,000 being advanced upon CITY securing all necessary permits for the installation. MCGILL will provide CITY with receipts or other documentation of the cost of materials. The final payment of remaining materials fund ($500) and artist's fees ($600) will be made after the artwork has been completed, and upon completion of the final Evaluation Form and Expenditure Sheet. 2. INSURANCE. The following insurance policies shall be kept in force until completion of the project: If MCGILL is or will be an employer, she shall carry and maintain, at her own expense, statutory Workers' Compensation Insurance. The amount of coverage and the insurance carrier shall be approved by CITY prior to commencing the project. COPY 2 3. PERMITS. CITY is responsible for obtaining all necessary permits and/or written permission for use of the site where the artwork will be located. Work may not begin on the site until all necessary permits are secured. 4. THE TIME OF COMPLETION. MCGILL shall commence working on the work -of -art upon the execution of this agreement, and her work shall be completed by October 16th, 1988. 5. PERFORMANCE. MCGILL'S services shall be performed to the complete satisfaction of CITY, who shall not unreasonably withhold its approval. CITY reserves the right to withhold payment if at any time the work is declared to be unsatisfactory. If the matter is not resolved in 30 days from written notice of dissatisfaction, the agreement shall be terminated and the matter submitted to arbitration. No significant deviations or changes from the accepted final design as presented in the project proposal may be made without the prior written consent of CITY. 6. MCGILL'S SERVICES. MCGILL agrees that she will perform services including but not limited to the following: a. Confer with representatives of CITY with regard to matters CITY deems to be pertinent under this agreement. b. Design and execute the work -of -art in cooperation with apprentices and subcontractors when necessary. c. MCGILL shall arrange, pay for and otherwise provide all services, labor, materials, scaffolding and equipment, transportation, storage, fees, rentals and all costs and expenses required to complete the work -of -art to the complete satisfaction of CITY, who shall not unreasonably withhold their approval. 7. OWNERSHIP OF WORK OF ART. Upon completion of the work of art and final acceptance by the CITY, the CITY shall own the work of art. 8. WARRANTY OF QUALITY. Upon final acceptance of the work of art by the CITY, MCGILL warrants that it shall be free of defects in materials and workmanship and that she shall, for a period of one year, correct any such defects at her own expense. Upon written notification of a defect in materials or workmanship, MCGILL shall have 60 days to commence repairs and shall conclude them within a reasonable time. If the repairs are not commenced or completed within this time frame MCGILL waives any right to repair and the CITY shall cause the necessary repairs to be effected at MCGILL'S expense. 9. RISK OF LOSS. McGill shall bear the full risk of loss of, or damage to, the sculptures until they have been completed, installed, and accepted by City. McGill shall take such precautionary measures as are necessary to protect the work -of -art from such loss or damage. 10. MAINTENANCE. The City has the obligation to maintain the work -of -art and shall have the right to determine when and if repairs and restorations need to be made, subject to the following conditions: During McGill's lifetime, she shall have the right to approve all repairs and restorations to the work -of -art. If McGill fails to approve any repair within 30 days from receipt of written notice from the City, the City shall have the right to make such repair or restoration provided that the work -of -art is not thereafter represented to be the work -of -art of McGill. To the extent practical, McGill shall be given the opportunity to make repairs and restorations approved by her provided that the City is not held responsible for either travel or living expenses and provided further that the City and McGill agree upon her fee, if any, for such repairs and restorations. McGill agrees to notify City of changes in McGill's address and agrees that failure to do so shall constitute a waiver of McGill's rights under this paragraph. 11. DESTRUCTION OR REMOVAL. The work of art has a minimum life expectancy of 2 years during which time the CITY agrees not to move, or destroy the work of art. After two years of time the piece will be evaluated on an annual basis to evaluate the condition of the work of art. If determined unsightly or unsafe the city can cause and assume the cost for the removal and disassembly of the piece. 12. INDEPENDENT CONTRACTOR. contractor and nothing in as constituting MCGILL as representative of CITY. 13. EVALUATION. After the MCGILL shall submit a final project documentation prior MCGILL is an independent this agreement shall be construed an employee, agent, or completion of this project, evaluation, and appropriate to final payment. 3 4 14. INDEMNITY. During construction, MCGILL agrees to defend, indemnify, protect, and hold CITY and its agents, officers, and employees, harmless from and against any and all claims asserted or liability established for damages or injuries to any person or property, including injury to MCGILL'S employees, agents or officers which arise from or are connected with or are caused or claimed to be caused by the acts or omissions of MCGILL and her agents, officers or employees, in performing the work or services herein described, and all expenses of investigating and defending against same; provided, however, that MCGILL'S duty to indemnify and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the CITY, its agents, officers, or employees. City has ownership of the work of art after all payments are made, and will indemnify the piece thereafter. 15. RIGHT OF REPRODUCTION. Right of Reproduction of the work -of -art is reserved to MCGILL who retains the right to obtain and own a copyright subject to the following exception. After all payments set forth hereunder have been made to MCGILL license is hereby granted to CITY, who shall have the right to use, publicize, graphically reproduce and advertise the work -of -art for non-commercial purposes without the written consent of MCGILL. 16. ASSIGNMENT,TRANSFER OR SUBCONTRACTING. A material element of this agreement is the personal skill, judgement and creativity of MCGILL. Therefore, MCGILL shall not assign, transfer or subcontract her creative and artistic expertise pertaining to the work -of -art without the prior written consent of CITY. 17. OPENING. CITY shall sponsor a public opening of the installation or performance which MCGILL shall attend. 18. ARBITRATION. All claims or disputes between the City and MCGILL relating to this Agreement shall be decided by arbitration in accordance with the rules of the American Arbitration Association conducted in Marin County under the laws of the State of California. The decision of the arbitrator shall be final and binding on the parties. In interpreting the provisions of this Agreement, the arbitrator may make an award of costs and fees, including attorney's fees necessitated by arbitration. 19. ENTIRETY OF CONTRACT. This writing embodies the entire agreement and understanding between the parties hereto and 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. 20. MODIFICATION OF AGREEMENT. No alteration,, change or modification of the terms of this agreement shall. be valid unless made in writing and signed by all parties hereto. 21. GOVERNING LAVA. This agreement, regardless of where executed, shall be governed by and construed according to the laws of the State of California. IN WITNESS WHEREOF, the parties hereto have executed this agreement on the date herein above written. Y OF SAN RAFAEL ATTEST Lawrence E. Mulryan 49dn-rle M. Leon`cini Mayor City Clerk HEATHER MCGILL DateILL�Social Security # ��,55- .7 S-'7/ &-6 APPROVED AS TO FORM: Gary T. Ragghi:xnti 'fir its torney i APPROV D AS 1 C ENT: Vau _ Stratfo d/ Cul u al Affai Director 5