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HomeMy WebLinkAboutC-3990 - Agreement for the McFadden Square Centennial Legacy Project Artworkr CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 7 February 26, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: LIBRARY SERVICES Jana Barbier, Cultural Arts Coordinator (717 -3870) email: jbarbier (aZcity.newport- beach.ca.us Linda Katsouleas, Library Services Director (717 -3810) email:. Ikatso u leas(& city. newpo rt- beach. ca. u s SUBJeCT: Ifl CFA-0 $ NI SQUARE CENTENNIAL LEGACY PROJECT: APPROVAL OFTHE FINAL DESIGN AND PROGRESS PAYMENT. LJ ..-eT a4�� Approve the final design and clay model of the proposed artwork for the McFadden Square. Centennial Legacy Project and authorize payment of the Second Installment Payment of $30,000 to Artist/Sculpture Hank Kaminsky. DISCUSSION: In accordance with the terms and conditions of the Contract Agreement (C -3990) Stage 2 (Final Design,) McFadden Square sculptor, Hank Kaminsky of Fayetteville, Arkansas, is required to submit photographic evidence of a full -size clay piece of the Artwork to the City for approval on the Project by February 1, 2008. Upon approval of the full -size clay piece of the Artwork by City Council, the City shall pay the artist the second installment payment of 30,000.00 to begin Stage 3 (Casting and Installation.) Kaminsky will mold and cast the approved design in bronze finish and install the Artwork at the Site on or before April 1, 2008. Upon the City's final acceptance of the Artwork, the final payment of $40,000.00 shall be due on May 1, 2008. • • i Project Costs and Funding to Date: • The total compensation to the Artist for the McFadden Square Centennial Legacy Sculpture Project is $110,000.00. This amount constitutes full compensation for the artwork including, but not limited to, fees, materials; and transportation, insurance and shipping of the artwork to the site. Upon execution of the Agreement on October 23, 2007, artist Hank Kaminsky was paid $10,000.00 as a retainer to be used to perform the historical research necessary to design the Artwork and to pay for any insurance policies required under the Agreement. On December 11, 2007, City Council approved the initial design and clay model of the proposed artwork for the McFadden Square Centennial Legacy Project and authorized payment of the First Installment Payment of $30,000 to Artist/Sculptor Hank Kaminsky. Future Contract.Costs: Sta 3.. + a , Installation), Artist shall mold and cast the approved design in br n : r %art frj tall:1he Artwork at the Site on or before April 1, 2008. Upon the Ctyf `. ,ef the Artwork, the final:payment of. $40,000.00 shall be due on 11eti:CtIE uie.. On ":der. r City Council Approved a Contract Agreement (C -3990) °Agvee i"rit hel z". &rr the City of Newport Beach and Artist Hank Kaminsky for the Nlcfadden Square Centennial Legacy Project Artwork ". City Council approved the McFadden Square Centennial Legacy Project design and sculpture concept with selected: artistisculptor Hank Kaminsky of "The Village Sculptor" in Fayetteville, Arkansas, for a bronze sculpture and base and authorizing the City Manager to make contract changes, if needed, that do not affect the contractual price and authorize the Mayor to sign the contract for $110,000. City Attorney Clauson recommended that Council identify the person or entity to make approval of the clay model before the first $30,000 installment was made. The first payment of $10,000 would be a retainer for research and preparation of the model. She also recommended that the Project Manager be someone from the Public Works Department to coordinate the contract. She requested that the expected date of completion be verified with the artist and the Public Works Department. Council Member Henn clarified that Council would ask staff to revise the contract as needed. The revision would make it clear that the first $10,000 payment was to be used for a mock up and research to provide Council with sufficient information to approve the final agreement. The City would not be obligated beyond that $10,000 until approval was granted by Council. Attachments: (1) City Attorney Agreement between the City of Newport Beach and Artist Hank Kaminsky for the McFadden Square Centennial Legacy Project Artwork (C -3990) • 2 0 E • (2) Invoice #2007 -67 from Kaminsky Studio for $30,000.00; Payment for completion of Stage 2 (Final Design) design phase on McFadden Square sculpture. (3) Photo presentation submitted by Hank Kaminsky; presented by Arts Commission Chair, Kirwan Rockefeller; on behalf of the Arts Commission and McFadden Square Centennial Committee. Submitted by JankBgrbier, Cultural Arts Coordinator (949) 717 -3870 x 44 -Ei'n-awKa&6u1easWbrary Director (949) 717 -3810 • 0 0 AGREEMENT • BETWEEN THE CITY OF NEWPORT BEACH AND ARTIST HANK KAMINSKY FOR THE MCFADDEN SQUARE CENTENNIAL LEGACY PROJECT ARTWORK THIS AGREEMENT is made and entered into as of this day of October, 2007, by and between the CITY OF NEWPORT BEACH, a Charter City and Municipal Corporation ( "City "), and HANK KAMINSKY, an individual whose address is 808 Government Avenue, Fayetteville, Arkansas 72701 ( "Artist"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. To commemorate the City's 100 -year anniversary of incorporation, the City is planning to conduct an urban beautification project at McFadden 8quere., which is located at the base of the Newport Pier and is often referred, to. as; the "Birthplace of the City" (hereinafter referred to as the "Site "). The City's plans call for an impressive piece of art to be located in the center of the square, surrounded by a circular - shaped public plaza. C. City desires to commission Artist to design, fabricate, deliver and install a bronze sphere sculpture five feet in diameter to be the focal point of the McFadden Square Centennial Legacy Project. City desires to have the artwork installed at the Site on or before April 1, 2008. D. Artist is an internationally recognized Artist who has a specialty in creating bronze sculptures of the type desired by City. E. City has solicited and received a proposal from Artist, has reviewed the previous experience and evaluated the prior work created by Artist, and desires to commission Artist to create, design and install the sculpture under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: TERM The term of this Agreement shall commence on the above written date, and unless terminated earlier as set forth herein, shall extend until written final • • • • acceptance by City of the Artwork, or submission of final payment to the Artist by City, whichever is later. 2. ARTIST'S OBLIGATIONS 2.1 Artist agrees to design, fabricate, deliver, and install, in a satisfactory and proper manner as determined by the City, the following Artwork: A bronze sphere rive (5) feet in diameter with words and images sculpted in tow relief on the surface which illustrate the past, present and future of the City of Newport Beach, California (hereinafter referred to as the "Artwork). 2.2 Artist agrees to ensure that the Artwork is durable, taking into consideration that the Site is an unsecured public space that may be exposed to elements such as harsh weather and ocean air. 2.3 The Artist shall arrange the transportation and installation of the Arhkibrk in consultation with the City's Public Works Department, and'Artiist shall supervise the installation. • 2.4 ;AAsFt.S taU' provide required insurance in the amounts and limits sifi`d in. paragraph 12. 2.5 Upon installation of the Artwork, the Artist shall provide the City with written instructions for appropriate maintenance and preservation of the Artwork as outlined in Paragraph 7 below. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and Artist has agreed to have the Artwork completed and installed at the Site on or before April 1, 2008 (hereinafter referred to as the "Delivery Date "). 3.1 If the Artist fails to complete the Artwork in time to meet the Delivery Date set forth herein, the Artist may request, in writing, an extension from the City. The Project Administrator has the authority to grant a time extension up to thirty (30) days. The granting of any extension shall not affect any other provision of this Agreement. 3.2 If the Artist fails to complete installation within the time set forth herein and any extension thereto, the City may at its option deduct is FA 0 0 five (5 %) percent of any balance due for every 30 days the • Artwork's installation is not completed. 4. COMPENSATION TO ARTIST City shall pay the Artist One Hundred and Ten Thousand Dollars and no111f0 ($110,000.00), which shall constitute full compensation for the Artwork, including, but not limited to, fees, materials, transportation, insurance and shipping of the Artwork to the Site, and any costs incurred by the Artist for installation of the Artwork at the Site, as well as the associated rights described in this Agreement (hereinafter referred to as the "Purchase Price "). No changes to the Purchase Price shall be made during the term of this Agreement without the prior written approval of City. 4.1 Task and Payment Schedule. Artist shall be paid according to the task and payment schedule attached hereto as Exhibit A and incorporated in full by this reference. 4.2 Taxed. Any state or federal sales, use or excise taxes, or similar ,es. related to the services to be provided hereunder shall be pai&by the City. 4.3 Seal: Security Number. The Artist agrees.to provide City with the Atists' correct social security number upon the execution of this • Agreement. 4.4 Invoice. In order to receive payments as set forth herein, the Artist must submit a signed and dated invoice to the City for approval. 5. FABRICATION AND INSPECTION 5.1. The Artist shall fabricate and install the Artwork in substantial conformity with the Design, attached hereto as Exhibit B and incorporated in full by this reference. The Artist may not deviate from the approved Design without written approval of the City. 5.2. Artist agrees to furnish the City with progress reports and photographs of the work as requested by City. The photographs may be digital images and sent by e-mail. The City shall also have the right to review the Artwork at the Artist's studio while in any phase of the process of fabrication upon reasonable notice. 5.3. If the City, upon review of the Artwork, determines that the Artwork does not conform to the Design, the City reserves the right to notify the Artist in writing of the deficiencies and that the City intends to withhold the next payment installment. The Artist will promptly cure • 3 0 0 • the City's objections and will notify the City in writing of completion of the cure. 5.4. The Artist shall notify the City in writing when fabrication of the Artwork has been completed and is ready for delivery and installation at the Site. 5.5. The City shall inspect the Artwork within five (5) days after receiving notification pursuant to Paragraph 5.4 to determine that the Artwork conforms with the Design and to give final approval of the Artwork. The City shall not unreasonably withhold final approval of the fabricated Artwork. 6. INSTALLATION 6.1 Upon the City's written final approval of the fabricated Artwork, the Artist shall deliver and install the completed Artwork at the Site. Transportation and handling fees shall be paid by the Artist. 6.2 Tho>Adipt will coordinate closely with the City to ascertain that the SW ,,:i prelamd 'to receive the Artwork. Artist may not install the ovort trriErl authorized 'to do so by the City. • 6.3. Thpr,CUN. agrees to coordinate discussions with the Artist for the eb�n:& any site preparation that is not a part of the Artwork bid iWhfte$sary for its installation. The Artist will work with the City in' deMgriing the placement of the Artwork at the Site and will rhordtor the subcontractor(s) making any footings, site preparations, etc. The Artist shall' be responsible for all expenses, labor and equipment associated with the Artwork and its installation. The Artist shall not be responsible for preparation of landscaping, if any, or structural footings, except for the installation of the Artwork on its attached foot, or public access or public security for the Artwork. 6.4 The Artist shall be present to supervise the installation of the Artwork. The Artist shall notify the City when installation is complete. 6.5 The City shall have 10 days after it receives notice that installation is complete to review the Artwork and the documentation submitted pursuant to Paragraph 7 below. The City shall then either accept the Artwork and notify the Artist in writing of its acceptance, or it shall submit to the Artist a written list or report of any deficiencies in either the Artwork or the documentation. This list or report shall allow the Artist a reasonable time for correcting any deficiencies. . When all deficiencies so listed or reported are corrected to the 11 0 reasonable satisfaction of the City, it shall accept the Artwork and • notify the Artist in writing of its acceptance. The effective date of final acceptance shall be the date the City submits written notice to the Artist of its final acceptance of the Artwork. Title to the Artwork passes upon final acceptance and final payment, subject to the warranties and further performance obligations set forth herein. 6.6 Upon written final acceptance, the Artwork shall be deemed to be in the custody of City for purposes of Section 8. 7. MAINTENANCE Within ten (10) days following completion of installation, the Artist shall submit a written technical description and maintenance report specifying maintenance needed by the Artwork, along with .product data sheets for any material or finished used. This report shall include any cleaning procedures, and materials to avoid, and information such as paint or cleri g: formulas that. are necessary or desirable for good maintenance a 4®r*ervaWn, „pract, s. The Artist will assist the City in establishing aii>>e t�ve pr gf rri. 4f naintenance of the Artwork without additional cost to.tte; City fora.period of 12 months.following final written acceptance. Ttte ;City. shall .:taave.the,;right to.authorize maintenance and conservation • praced�tres ,to be-.perfowmed on. -the Artwork; however, the City agrees to make reasonable . attempts to seek the advice of the Artist before authorizing any procedures not specified in the Artist's maintenance report. The City agrees further to use only qualified conservators and art handlers in performing any conservation work. 8. RISK OF LOSS The Artist shall bear the risk of loss or damage to the Artwork until the City's written final acceptance of the Artwork under Section 6.5. The Artist shall take such measures as are reasonably necessary to protect the Artwork from loss or damage. u 5 11 0 • 9. WARRANTIES 9.1 Warranties of Title. The Artist represents and warrants that: (a) The Artwork is solely the result of the artistic effort of Artist; (b) The Artwork is unique and original and does not infringe upon any copyrights or the rights of any third person; (c) The Artwork (or duplicate thereof) has not been accepted for sale elsewhere; (d) The Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Artwork or any element thereof or any copyright related thereto which may affect or impair the rights granted pursuant to this Agreement; and (e) The Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement. These representations and warranties shall survive the termination of this Agreement. 9.2 Quality and Condition. The Artist represents and warrants that: (a) The fabrication of the Artwork will be performed in a workmanlike manner; (b) The Artwork, as fabricated and following installation, will be free of patent and latent defects in material and werktnaristaip, including any.defests of "inherent vice" or qualities t, Wt .;udlttae or accelerate deterioration of the Artwork; and (c) i. "" " rrrairttr3ra nO6 of the Artwork will not require procedures sviiW city in :excess of those described in the maintenance • rftoii et lations to be submitted by the Artist to the City hereunder.. 11 The warranties described in Section 8.2 shall survive for a period of one (1) year after the Acceptance of the Artwork, except the representation and warranty concerning latent defects shall survive for a period of three (3) years from the Acceptance of the Artwork. The City shall give notice to the Artist of any observed and claimed breach with reasonable promptness. The Artist shall, at the request of the City, and at no cost to the City, cure reasonably and promptly the breach of any such warranty that is curable by the Artist and which cure is consistent with professional conservation standards (including, for example, cure by means of repair or refabrication of the Artwork). 10. ADMINISTRATION This Agreement will be administered by the Public Works Department. Steve Badum, Director, shall be the City Administrator and shall have the authority to act for City under this Agreement. The City Administrator or his /her authorized representative shall represent City in all matters pertaining to this Agreement. A 11 12. • • ARTIST AS INDEPENDENT CONTRACTOR • The Artist agrees to perform all Artwork under this Agreement as an independent contractor and not as an agent or employee of the City. The Artist acknowledges and agrees that the Artist shall not hold himself out as an authorized agent of the City with the power to bind in any manner. INSURANCE Artist shall obtain, provide and maintain at his own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Artist shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. B. Coverage Requirements. i. Commercial General Liability Coverage. Artist shall maintain, commercial general liability insurance in an amount not%Iqss=than,one million dollars ($1,000;000) per occurrence for :bodily. injury, .personal injury, and property damage, Including, without limitation, contractual liability. If • commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under.this Contract, or the general aggregate limit shall be at least twice the required occurrence limit. The certificate evidencing Commercial General Liability Coverage must be approved by City's Risk Manager prior to commencement of performance under this Agreement. ii. Transportation /Cartage Insurance All -risk. Coverage must include loading, transportation, and unloading of the Artwork. If the Artwork is to be loaded, transported or unloaded by a person or entity other than the Artist, the insurance coverage must cover that person or entity. The minimum limit shall be the total amount of compensation paid to Artist through the date of loading. The certificate of insurance must be delivered to and approved by the City before the Artist's Artwork is loaded. iii. All Risk Installation Insurance. Coverage must include physical damage to or destruction of the Artwork. If the • 7 0 • Artwork is to be installed by a person or entity other than the Artist, the insurance coverage must cover that person or entity. The minimum limit shall be the total amount of compensation paid to Artist through the date of the beginning of installation of the Artwork. The certificate of insurance must be delivered to and approved by the City before the Artist's Artwork is installed. C. Endorsements. The policies required herein shall each be endorsed with the following speck language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Artist. 13. INDEMNIFICATION Artist shall indeymnify, defend and hold harmless the City, its officers, agents and en�loyees (each a "Covered Party") from and against all liabilities, obrigntions, losses, damages; .judgments, costs or expenses (t 4 l g f t 16" and costs)- (collectively "Losses ") arising from, or in • c n i Eton; r i or caused by 'Fa) any personal injury or property damage catiOod, ' dirwctfy. ar indirectly, by any act or omission of Artist, its subeontiadom agents or.enSployees, including those that may be caused during tianspar on or installation of the Artwork; or (b) any infringement of the patent:tights, copyright, trade secret or any other proprietary right or trademark and all other intellectual property claims of any person or persons in consequence of City's acceptance of Artist's work. Artist shall have no obligation under this Section with respect to any Loss that is caused solely by the active negligence or willful misconduct of a Covered Party. • This indemnification shall survive the termination or expiration of this Agreement. 14. ASSIGNMENT The Artwork and services required of the Artist are personal and shall not be assigned, sublet or transferred. Any attempt by the Artist to assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect unless prior written consent is given by City. U is. 16. i • NOTICES • All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Artist and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Artist to City shall be addressed to City at: Steve Badum, Director Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Phone: (949) 644 -3311 Fax: (949) 644 -3318 All notices,: demands, requests or approvals from City to Artist shall be addressed to Artist at: M.(..Haf►li ,;Kaminsky Te,Ul. Sgljptor $QB:Gavtnoaerxt:i4venue • Fettetltes Akaisas 72701 Phone:.(479) 442 -5805 Fax: (479) 442 -3927 TERMMATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Artist. In the event of termination under this Section, City shall pay Artist for services • RI • • satisfactorily performed up to the effective date of termination, consistent with the schedule of payments set forth in Section 4.1 and Exhibit A. 17. INABILITY TO PERFORM AGREEMENT If the Artist is unable, for any reason, to conceive, produce, or install the Artwork as agreed upon (other than the inability of City to perform hereunder), the Artist shall return all money paid to him. If any equipment and/or materials have already been purchased, the Artist shall keep those items and return the full Purchase Price to City. In the event of death or disability of the Artist prior to installation of the Artwork, the City may terminate this Agreement and receive a refund of all amounts paid hereunder unless the Artist's executor proposed an acceptable successor artist to complete the Artwork that is approved by the City in its sole discretion. 18. TITLE AND OWNERSHIP Tale t6 fho Artwork shall transfer from Artist to City upon the City's written f#rFa[:ire, and final payment of the Purchase, Price as outlined in 7ri'tfli' , fransfer shall be self - executing upon City's .payment. •te �Citjr titte to and ownership of the Artwork, including the right to :,..ro tire:tlie Artwork, and images thereof. City shall make reasonable .... 0ff�A 'tb ensure that reproductions or publications that prominently feature the Artwork contain a credit to the Artist. In the event that City's use of the Artwork creates trademark, service mark or trade dress rights in connection with the Artwork, City shall have an exclusive and irrevocable right in such trademark, service mark or trade dress. The Artist is authorized to produce duplicates of the Artwork with the speck permission of the City. The City agrees to comply with the provisions of the Visual Artists Rights Act of 1990. 19, SIGNAGE The City agrees to be responsible for the placement of a sign in association with the Artwork in accordance with practices for the identification of artworks in public settings. 20. DEACCESSION RIGHT The City may remove the Artwork from the Site if it determines that the • Artwork represents a safety hazard in its present condition or cannot 10 • i reasonably be restored to its original aesthetic integrity due to technical . difficulties or expense disproportionate to the value of the Artwork. The City has no responsibility to restore, or replace the Artwork if it is damaged. If the Artwork can be removed from the Site without the destruction, distortion, mutilation or other modification of the Artwork, the City shall notify the Artist of its intended action. Such notice shall be in writing and sent by registered mail to the Artist at the most recent address of the Artist that was recorded with the Register of Copyrights or, if such address has not been recorded with the Register of Copyrights, the notice shall be sent to the address furnished by Artist as required by Paragraph 15. Within ninety (90) days after receiving such notice, the Artist shall have the right to remove the Artwork or pay for its removal. If, however, the Artist does not respond within the ninety day period or notes the City in writing, within the ninety-day period, or the waiver of said right, the City may proceed with removal of the Artwork. 21. SITE PROTECTION The City shall guarantee the integrity of the installation site essentially as it is at the tirre thq.Artwork is placed. The City will not significantly alter 1ghdsea g;�or:,oth'erwchit�ctuaai elements so as to obstruct. of deter the ui inr- ef''ttre_ AI'tgvcirzk. :Sh6uld the :City deem it necessary to significantly at# 'r. t 'sites; ;Ahe Artwork may be relocated pursuant to the provisions • �ttia d;ir Paragraph 22. 22. MANGES IN LOCATION: OR SITING The City shall have the right to change the location or siting of the Artwork when, in the opinion of the City, such a change is deemed necessary. The City shall notify the Artist of any such change; such notification shall be made before the change, if possible. 23. WAIVER No waiver of performance by the City shall be construed to be or operate as a waiver of any subsequent default of any terms, covenants and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 24. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged • 11 n U E • herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 25. CONTROLLING LAW AND VENUE This Agreement, regardless of where executed or performed, shall be governed by and construed in accordance with the laws of the State of California. Any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: Rilbin Clauson City Attorney for the City of Newport Beach ATTEST: LaVonne Harkless City Clerk ARTIST: Hank Kaminsky The Village Sculptor CITY OF NEWPORT BEACH, for the City of Newport Beach Attachments: Exhibit A — Task and Payment Schedule Exhibit B — Design Proposal Pusers/CAT /shared /AG/Artwork (PublicyDonnaBigi/Revised Contract with Hank Kaminsky.doc 12 Retainer: EXHIBIT A . TASK AND PAYMENT SCHEDULE Upon execution of the Agreement, City shall pay Artist $10,000.00, which shall be used to perform the historical research necessary to design the Artwork and to pay for any insurance policies required under the Agreement. Stage 1 (Initial Design): Following completion of the data gathering process, Artist shall design the graphic and a clay model of the Artwork. • Artist shall submit photographic evidence of the clay model to the City for approval. • Upon approval of the clay model and graphic by the City Council, City shall pay Artist the first installment payment of $30;000.00. • Deadline for completion of Stage 1 is December 1, 2007. • Stage 2 (Final Design); Artist shall build a full -size clay piece of the Artwork. • Artist shall submit photographic evidence of the clay master pattern to the City Council for approval. • Upon approval by the City Council, City shall pay Artist the second installment payment of $30,000.00. • Deadline for completion of Stage 2 is February 1, 2008. Stage 3 (Casting & Installation): Artist shall mold and cast the approved design in bronze finish and install the Artwork at the Site on or before April 1, 2008. Upon the City's final acceptance of the Artwork, the final payment of $40,000.00 shall be due on May 1, 2008. • 13 0 0 EXHIBIT B DESIGN PROPOSAL Below is the proposed design of the Artwork; however, the words on the sculpture will be unique to the City of Newport Beach and representative of the City's "past, present and future." 14 McFadden Square Centennial Legacy Project Sculpture Final Presentation of Clay Master Pattern s � IOW �. r+.. `fJ U r a , .�.- ''1 Sl l�xl. 1� a c ��°`✓ � x �y ` !J�'' 41 �I a ti Ile 1 - t n; 4i. f —64 � f S ,J 11�� rgk�JJSkV�i I�� „ a 1 �I a } ` l 0 ✓ \�v m! ��....���C�rs Y C• .�_ `�� .��� �5�� t �`�'� rrr_ y.r� n Lc J � � t I Rs Al 9 11 r TIZf - 1 11 `� Q pp ,. r, Y V i �rt C� ,ate � — T Cmj2'%Yn ✓c y1a °'��. 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Bay, Harbor, Collins, Little Balboa, Linda and Newport Islands and: Lido Isle Newport Pier Balboa Pier The Dory The Wedge Rendezvous Ballroom Newport Center and Fashion Island Fun, Zone Boy Scout Jamboree site of first water to water flight Balboa to Catalina Madame Helena Modjeska Newport Coast Annexation Crystal Cove The "Timeline "' Corona del Mar ' 0 0 C - 3910 AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND ARTIST HANK KAMINSKY FOR THE MCFADDEN SQUARE CENTENNIAL LEGACY PROJECT ARTWORK THIS AGREEMENT is made and entered into as of this 234 day of October, 2007, by and between the CITY OF NEWPORT BEACH, a Charter City and Municipal Corporation ( "City"), and HANK KAMINSKY, an individual whose address is 808 Government Avenue, Fayetteville, Arkansas 72701 ( "Artist"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. To commemorate the City's 100 -year anniversary of incorporation, the City is planning to conduct an urban beautification project at McFadden Square, which is located at the base of the Newport Pier and is often referred to as the "Birthplace of the City" (hereinafter referred to as the "Site "). The City's plans call for an impressive piece of art to be located in the center of the square, surrounded by a circular- shaped public plaza. C. City desires to commission Artist to design, fabricate, deliver and install a bronze sphere sculpture five feet in diameter to be the focal point of the McFadden Square Centennial Legacy Project. City desires to have the artwork installed at the Site on or before April 1, 2008. D. Artist is an internationally recognized Artist who has a specialty in creating bronze sculptures of the type desired by City. E. City has solicited and received a proposal from Artist, has reviewed the previous experience and evaluated the prior work created by Artist, and desires to commission Artist to create, design and install the sculpture under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and unless terminated earlier as set forth herein, shall extend until written final acceptance by City of the Artwork, or submission of final payment to the Artist by City, whichever is later. 2. ARTIST'S OBLIGATIONS 2.1 Artist agrees to design, fabricate, deliver, and install, in a satisfactory and proper manner as determined by the City, the following Artwork: A bronze sphere five (5) feet in diameter with words and images sculpted in low relief on the surface which illustrate the past, present and future of the City of Newport Beach, California (hereinafter referred to as the "Artwork). 2.2 Artist agrees to ensure that the Artwork is durable, taking into consideration that the Site is an unsecured public space that may be exposed to elements such as harsh weather and ocean air. 2.3 The Artist shall arrange the transportation and installation of the Artwork in consultation with the City's Public Works Department, and Artist shall supervise the installation. 2.4 Artist shall provide required insurance in the amounts and limits specified in Paragraph 12. 2.5 Upon installation of the Artwork, the Artist shall provide the City with written instructions for appropriate maintenance and preservation of the Artwork as outlined in Paragraph 7 below. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and Artist has agreed to have the Artwork completed and installed at the Site on or before April 1. 2008 (hereinafter referred to as the "Delivery Date "). 3.1 If the Artist fails to complete the Artwork in time to meet the Delivery Date set forth herein, the Artist may request, in writing, an extension from the City. The Project Administrator has the authority to grant a time extension up to thirty (30) days. The granting of any extension shall not affect any other provision of this Agreement. 3.2 If the Artist fails to complete installation within the time set forth herein and any extension thereto, the City may at its option deduct 4 five (5 %) percent of any balance due for every 30 days the Artwork's installation is not completed. 3.3 Notwithstanding the foregoing, Artist shall not be responsible for delays due to causes beyond Artist's reasonable control, including delays caused by the City's approval process. 4. COMPENSATION TO ARTIST City shall pay the Artist One Hundred and Ten Thousand Dollars and no/100 ($110,000.00), which shall constitute full compensation for the Artwork, including, but not limited to, fees, materials, transportation, insurance and shipping of the Artwork to the Site, and any costs incurred by the Artist for installation of the Artwork at the Site, as well as the associated rights described in this Agreement (hereinafter referred to as the "Purchase Price"). No changes to the Purchase Price shall be made during the term of this Agreement without the prior written approval of City. 4.1 Task and Payment Schedule. Artist shall be paid according to the task and payment schedule attached hereto as Exhibit A and incorporated in full by this reference. 4.2 Taxes. Any state or federal sales, use or excise taxes, or similar charges related to the services to be provided hereunder shall be paid by the City. 4.3 Social Security Number. The Artist agrees to provide City with the Artist's correct social security number upon the execution of this Agreement. 4.4 Invoice. In order to receive payments as set forth herein, the Artist must submit a signed and dated invoice to the City for approval. S. FABRICATION AND INSPECTION 5.1. The Artist shall fabricate and install the Artwork in substantial conformity with the Design, attached hereto as Exhibit B and incorporated in full by this reference. The Artist may not deviate from the approved Design without written approval of the City. 5.2. Artist agrees to furnish the City with progress reports and photographs of the work as requested by City. The photographs may be digital images and sent by e-mail. The City shall also have the right to review the Artwork at the Artist's studio while in any phase of the process of fabrication upon reasonable notice. 3 5.3. If the City, upon review of the Artwork, determines that the Artwork does not conform to the Design, the City reserves the right to notify the Artist in writing of the deficiencies and that the City intends to withhold the next payment installment. The Artist will promptly cure the City's objections and will notify the City in writing of completion of the cure. 5.4. The Artist shall notify the City in writing when fabrication of the Artwork has been completed and is ready for delivery and installation at the Site. 5.5. The City shall inspect the Artwork within five (5) days after receiving notification pursuant to Paragraph 5.4 to determine that the Artwork conforms with the Design and to give final approval of the Artwork. The City shall not unreasonably withhold final approval of the fabricated Artwork. 6. INSTALLATION 6.1 Upon the City s written final approval of the fabricated Artwork, the Artist shall deliver and install the completed Artwork at the Site. Transportation and handling fees shall be paid by the Artist. 6.2 The Artist will coordinate closely with the City to ascertain that the Site is prepared to receive the Artwork. Artist may not install the Artwork until authorized to do so by the City. 6.3 The City agrees to coordinate discussions with the Artist for the completion of any site preparation that is not a part of the Artwork but is necessary for its installation. The Artist will work with the City in designing the placement of the Artwork at the Site and will monitor the subcontractor(s) making any footings, site preparations, etc. The Artist shall be responsible for all expenses, labor and equipment associated with the Artwork and its installation. The Artist shall not be responsible for preparation of landscaping, if any, or structural footings, except for the installation of the Artwork on its attached foot, or public access or public security for the Artwork. 6.4 The Artist shall be present to supervise the installation of the Artwork. The Artist shall notify the City when installation is complete. 6.5 The City shall have 10 days after it receives notice that installation is complete to review the Artwork and the documentation submitted pursuant to Paragraph 7 below. The City shall then either accept the Artwork and notify the Artist in writing of its acceptance, or it 4 • 0 shall submit to the Artist a written list or report of any deficiencies in either the Artwork or the documentation. This list or report shall allow the Artist a reasonable time for correcting any deficiencies. When all deficiencies so listed or reported are corrected to the reasonable satisfaction of the City, it shall accept the Artwork and notify the Artist in writing of its acceptance. The effective date of final acceptance shall be the date the City submits written notice to the Artist of its final acceptance of the Artwork. Title to the Artwork passes upon final acceptance and final payment, subject to the warranties and further performance obligations set forth herein. 6.6 Upon written final acceptance, the Artwork shall be deemed to be in the custody of City for purposes of Section 8. 7. MAINTENANCE Within ten (10) days following completion of installation, the Artist shall submit a written technical description and maintenance report specifying maintenance needed by the Artwork, along with product data sheets for any material or finished used. This report shall include any cleaning procedures, and materials to avoid, and information such as paint or cleaning formulas that are necessary or desirable for good maintenance and conservation practices. The Artist will assist the City in establishing an effective program of maintenance of the Artwork without additional cost to the City for a period of 12 months following final written acceptance. The City shall have the right to authorize maintenance and conservation procedures to be performed on the Artwork, however, the City agrees to make reasonable attempts to seek the advice of the Artist before authorizing any procedures not specified in the Artist's maintenance report. The City agrees further to use only qualified conservators and art handlers in performing any conservation work. B. RISK OF LOSS The Artist shall bear the risk of loss or damage to the Artwork until the City's written final acceptance of the Artwork under Section 6.5. The Artist shall take such measures as are reasonably necessary to protect the Artwork from loss or damage. A r • 9. WARRANTIES 91 Warranties of Title. The Artist represents and warrants that: (a) The Artwork is solely the result of the artistic effort of Artist; (b) The Artwork is unique and original and does not infringe upon any copyrights or the rights of any third person; (c) The Artwork (or duplicate thereof) has not been accepted for sale elsewhere; (d) The Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Artwork or any element thereof or any copyright related thereto which may affect or impair the rights granted pursuant to this Agreement; and (e) The Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement. These representations and warranties shall survive the termination of this Agreement. 9.2 Quality and Condition. The Artist represents and warrants that: (a) The fabrication of the Artwork will be performed in a workmanlike manner, (b) The Artwork, as fabricated and following installation, will be free of patent and latent defects in material and workmanship, including any defects of "inherent vice" or qualities that cause or accelerate deterioration of the Artwork; and (c) reasonable maintenance of the Artwork will not require procedures substantially in excess of those described in the maintenance recommendations to be submitted by the Artist to the City hereunder. The warranties described in Section 8.2 shall survive for a period of one (1) year after the Acceptance of the Artwork, except the representation and warranty concerning latent defects shall survive for a period of three (3) years from the Acceptance of the Artwork. The City shall give notice to the Artist of any observed and claimed breach with reasonable promptness. The Artist shall, at the request of the City, and at no cost to the City, cure reasonably and promptly the breach of any such warranty that is curable by the Artist and which care is consistent with professional conservation standards (including, for example, cure by means of repair or refabrication of the Artwork). 10. ADMINISTRATION This Agreement will be administered by the Public Works Department. Steve Badum, Director, shall be the City Administrator and shall have the authority to act for City under this Agreement. The City Administrator or his /her authorized representative shall represent City in all matters pertaining to this Agreement. 0 0 0 11. ARTIST AS INDEPENDENT CONTRACTOR The Artist agrees to perform all Artwork under this Agreement as an independent contractor and not as an agent or employee of the City. The Artist acknowledges and agrees that the Artist shall not hold himself out as an authorized agent of the City with the power to bind in any manner. 12. INSURANCE Artist shall obtain, provide and maintain at his own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Artist shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. B. Coverage Reauirements. i. Commercial General Liability Coveraoe. Artist shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including, without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the worts to be performed under this Contract, or the general aggregate limit shall be at least twice the required occurrence limit. The certificate evidencing Commercial General Liability Coverage must be approved by City s Risk Manager prior to commencement of performance under this Agreement. ii. Transoortation/Cartaoe Insurance All -risk. Coverage must include loading, transportation, and unloading of the Artwork. If the Artwork is to be loaded, transported or unloaded by a person or entity other than the Artist, the insurance coverage must cover that person or entity. The minimum limit shall be the total amount of compensation paid to Artist through the date of loading. The certificate of insurance must be delivered to and approved by the City before the Artist's Artwork is loaded. iii. All Risk Installation Insurance. Coverage must include physical damage to or destruction of the Artwork. If the L 0 Artwork is to be installed by a person or entity other than the Artist, the insurance coverage must cover that person or entity. The minimum limit shall be the total amount of compensation paid to Artist through the date of the beginning of installation of the Artwork. The certificate of insurance must be delivered to and approved by the City before the Artists Artwork is installed. C. Endorsements. The policies required herein shall each be endorsed with the following specific language: The City, its elected or appointed offrcers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Artist. 13. INDEMNIFICATION Artist shall indemnify, defend and hold harmless the City, its officers, agents and employees (each a "Covered Party°) from and against all liabilities, obligations, losses, damages, judgments, costs or expenses (including legal fees and costs) (collectively "Losses ") arising from, or in connection with or caused by (a) any personal injury or property damage caused, directly or indirectly, by any act or omission of Artist, its subcontractors, agents or employees, including those that may be caused during transportation or installation of the Artwork; or (b) any infringement of the patent rights, copyright, trade secret or any other proprietary right or trademark and all other intellectual property claims of any person or persons in consequence of City's acceptance of Artists work. Artist shall have no obligation under this Section with respect to any Loss that is caused solely by the active negligence or willful misconduct of a Covered Party. This indemnification shall survive the termination or expiration of this Agreement. 14. ASSIGNMENT The Artwork and services required of the Artist are personal and shall not be assigned, sublet or transferred. Any attempt by the Artist to assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect unless prior written consent is given by City. 15. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Artist and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -Gass mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Artist to City shall be addressed to City at: Steve Badum, Director Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Phone: (949) 644 -3311 Fax: (949) 644 -3318 All notices, demands, requests or approvals from City to Artist shall be addressed to Artist at: Mr. Hank Kaminsky The Village Sculptor 808 Government Avenue Fayetteville, Arkansas 72701 Email: sculotor0kaminskv.com Phone: (479) 442 -5805 Fax: (479) 442 -3927 16. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Artist. In the event of termination under this Section, City shall pay Artist for services E satisfactorily performed up to the effective date of termination, consistent with the schedule of payments set forth in Section 4.1 and Exhibit A. 17. INABILITY TO PERFORM AGREEMENT If the Artist is unable, for any reason, to conceive, produce, or install the Artwork as agreed upon (other than the inability of City to perform hereunder), the Artist shall return all money paid to him. If any equipment and/or materials have already been purchased, the Artist shall keep those items and return the full Purchase Price to City. In the event of death or disability of the Artist prior to installation of the Artwork, the City may terminate this Agreement and receive a refund of all amounts paid hereunder unless the Artist's executor proposed an acceptable successor artist to complete the Artwork that is approved by the City in its sole discretion. 18. TITLE AND OWNERSHIP Title to the Artwork shall transfer from Artist to City upon the City's written final acceptance and final payment of the Purchase Price as outlined in Section 4.1. Title transfer shall be self - executing upon City's payment. Artist grants City title to and ownership of the Artwork, including the right to reproduce the Artwork, and images thereof. City shall make reasonable efforts to ensure that reproductions or publications that prominently feature the Artwork contain a credit to the Artist. In the event that City's use of the Artwork creates trademark, service mark or trade dress rights in connection with the Artwork, City shall have an exclusive and irrevocable right in such trademark, service mark or trade dress. The Artist is authorized to produce duplicates of the Artwork with the specific permission of the City. The City agrees to comply with the provisions of the Visual Artists Rights Act of 1990. 19. SIGNAGE The City agrees to be responsible for the placement of a sign in association with the Artwork in accordance with practices for the identification of artworks in public settings. 20. DEACCESSION RIGHT The City may remove the Artwork from the Site if it determines that the Artwork represents a safety hazard in its present condition or cannot ius • • reasonably be restored to its original aesthetic integrity due to technical difficulties or expense disproportionate to the value of the Artwork. The City has no responsibility to restore, or replace the Artwork if it is damaged. If the Artwork can be removed from the Site without the destruction, distortion, mutilation or other modification of the Artwork, the City shall notify the Artist of its intended action. Such notice shall be in writing and sent by registered mail to the Artist at the most recent address of the Artist that was recorded with the Register of Copyrights or, if such address has not been recorded with the Register of Copyrights, the notice shall be sent to the address furnished by Artist as required by Paragraph 15. Within ninety (90) days after receiving such notice, the Artist shall have the right to remove the Artwork or pay for its removal. If, however, the Artist does not respond within the ninety day period or notifies the City in writing, within the ninety -day period, or the waiver of said right, the City may proceed with removal of the Artwork. 21. SITE PROTECTION The City shall guarantee the integrity of the installation site essentially as it is at the time the Artwork is placed. The City will not significantly alter landscaping or other architectural elements so as to obstruct or deter the view of the Artwork. Should the City deem it necessary to significantly alter the site, the Artwork may be relocated pursuant to the provisions outlined in Paragraph 22. 22. CHANGES IN LOCATION OR SITING The City shall have the right to change the location or siting of the Artwork when, in the opinion of the City, such a change is deemed necessary. The City shall notify the Artist of any such change; such notification shall be made before the change, if possible. 23. WAIVER No waiver of performance by the City shall be construed to be or operate as a waiver of any subsequent default of any terms, covenants and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 24. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged 11 herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 25. CONTROLLING LAW AND VENUE This Agreement, regardless of where executed or performed, shall be governed by and construed in accordance with the laws of the State of California. Any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: R bin Clauson City Attorney for the City of Newport Beach ATTEST: By:.X. 4,� LaVonne Harkless City Clerk ARTIST: Hank Kaminsky The Village Sculptor CITY OF NEWPORT BEACH, A Munj.Cipal Cofporation Steve Rosansky Mayor for the City of Newport Beach Attachments: Exhibit A — Task and Payment Schedule Exhibit B — Design Proposal F: users/CAT/shared/AG/Artwork (Public)/DonnaBigi/Revised Contract with Hank Kaminsky.doc 12 Retainer: EXHIBIT A TASK AND PAYMENT SCHEDULE Upon execution of the Agreement, City shall pay Artist $10,000.00, which shall be used to perform the historical research necessary to design the Artwork and to pay for any insurance policies required under the Agreement. Stage 1 (Initial Design): Following completion of the data gathering process, Artist shall design the graphic and a clay model of the Artwork. • Artist shall submit photographic evidence of the clay model to the City for approval. • Upon approval of the day model and graphic by the City Council, City shall pay Artist the first installment payment of $30,000.00. • Deadline for completion of Stage 1 is December 1, 2007. Stage 2 (Final Desionl: Artist shall build a full -size clay piece of the Artwork. • Artist shall submit photographic evidence of the clay master pattern to the City for approval. • Upon approval, City shall pay Artist the second installment payment of $30,000.00. • Deadline for completion of Stage 2 is February 1, 2008. Stage 3 (Casdna & Installation): Artist shall mold and cast the approved design in bronze finish and install the Artwork at the Site on or before April 1, 2008. Upon the City's final acceptance of the Artwork, the final payment of $40,000.00 shall be due on May 1, 2008. EXHIBIT B DESIGN PROPOSAL • Below is the proposed design of the Artwork; however, the words on the sculpture will be unique to the City of Newport Beach and representative of the City's "past, present and future." c7jl� 1100 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 15 October 23, 2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Jana Barbier, Cultural Arts Coordinator (949- 717 -3870) email: jbarbier Cwcitv.newport- beach.ca.us Homer Bludau, City Manager (949- 644 -3000) email: hbludau @city.newport- beach.ca.us SUBJECT: MCFADDEN SQUARE CENTENNIAL LEGACY PROJECT: APPROVAL OF CONCEPT AND DESIGN; DECISION ON SCULPTURE CONTRACT RECOMMENDATION: Approve McFadden Square Centennial Legacy with selected artist/sculptor Hank Kaminsky of Arkansas for a bronze sculpture and base and contract changes, if needed, that do not affect Mayor to sign the contract for $110,000; M Project design and sculpture concept "The Village Sculptor' in Fayetteville, authorizing the City Manager to make the contractual price and authorize the Approve McFadden Square Centennial Legacy Project design and sculpture concept but await the bids on the hardscape portion of the project (set for November 27th agenda) in order to determine the true costs of the project, prior to deciding whether to proceed with contracting for the sculpture part of the project. DISCUSSION: Project History In March of 2005, in response to the Centennial Committee's specific request, then Recreation and Senior Services Director Marie Knight asked the Newport Beach Arts Commission to assist with the development of a permanent legacy project to recognize donors and to commemorate the City's Centennial. The project was designated to be installed in McFadden Square, at the base of the Newport Pier. Arts Commission Chair Kirwan Rockefeller compiled criteria for the project and solicited requests for proposals W McFadden SA Centennial Legacy Project October 23, 2007 Page 2 . from several architectural landscape firms in Newport Beach. Peridian International, Inc. provided a design for the project and offered to donate design services. In April of 2006, Mr. Rockefeller provided an overview of the design to the City Council and Phase I was approved in concept. Newport Beach resident Bernie Svalstad was asked to chair the McFadden Square Centennial Legacy Project fundraising committee and library services /cultural arts staff was assigned to staff the project. Mr. Svalstad coordinated a fundraising campaign and, in July of 2006 the fundraising committee hosted a gala to introduce the project at the 21 Oceanfront restaurant. In June of 2007, Kirwan Rockefeller and Bernie Svalstad presented an update on fundraising to the City Council and the status of selecting an artist/sculptor for the bronze sculpture designated in the design. Sculpture Selection and Contract for Work In February of 2007, the City of Newport Beach Arts Commission /ad hoc Public Arts Committee issued a Request for Proposals from public artists proposing a sculptural design for a bronze sculpture, the focal point of the McFadden Square Centennial Legacy Project, commemorating the City's Centennial. Approximately 15 artists from both local and international locations submitted proposals for a sculpture representative of the project by May 1, 2007. After careful deliberation of each concept, design, qualifications and budget, the Public Arts Committee selected Hank Kaminsky of "The Village Sculptor" in Fayetteville, Arkansas to create a bronze sculpture and base. Mr. Kaminsky's Artist's Agreement (attached) includes the shipping of one 5' bronze sculpture, with full insurance, described as: "A bronze sphere 5 feet in diameter with words and images sculpted in low relief on the surface which illustrate the past, present and future of the City of Newport Beach, California." The contract includes a research period before the sculpture is produced and also includes the artist's travel to install the sculpture, the permanent installation of the finished sculpture, along with his attendance at the dedication. The proposed budget for the sculpture is $110,000. Hank Kaminsky of The Village Sculptor has presented an Artist's Agreement for the bronze sculpture, stating payment terms and description of services (attached.) The contract has been revised and approved for content by the City Attorney's office. Since the artist will accrue expenses immediately in developing the model, a payment schedule is included to provide regular payments totaling $110,000 throughout the sculpture creation process. There may be a need for some relatively minor details to be changed in the agreement to meet time frames, so the staffs recommendation is to authorize the City Manager make such changes as long as the contract cost is not changed. Project Definition and Construction The Centennial Legacy Project is based on a timeless theme, and includes granite benches and an historical walking path with markers of significant events from the past 100 years. Sponsors from $250 to $2500 will have their names engraved in the granite • McFadden Square Centennial Legacy Project October 23, 2007 Page 3 surrounding the walking path. Sponsors at the $5000 level will have their names prominently engraved in granite on the top of the benches that encircle the outer edge of the project. And $50,000 sponsors will be recognized at the base of the bronze sculpture. The focal point of the project is a bronze sculpture representative of the Newport Beach community and the centennial. The Public Works Department worked with Peridian International, Inc. to put together a set of plans and specifications so that the project could be advertised for construction bids during the week of October 15th, with the bid opening date of November 15th Council would then award the bid at its November 27th meeting. Given funding availability, the project would be scheduled to break ground in February, 2008. Given this schedule, the option is available to Council of determining the total cost of the McFadden Square project prior to entering into the contract for the sculpture, if Council determines it would be prudent to do so. That would mean holding off authorizing the sculpture contract until the November 27th meeting so the contract could be considered in the context of the cost of the overall project. Fundraising and Total Project Cost Estimates A Fundraising Campaign for the McFadden Square Centennial Legacy Project was started in July of 2006 wherein the fundraising committee hosted a gala to introduce the project at 21 Oceanfront Restaurant. Since that time, numerous mailings have been coordinated to businesses and residents in Newport Beach and environs. A model and renderings depicting the project have been on display at the Central Library and at City Hall. Flyers, mailers, banners, certificates, postcards, posters and numerous press releases and ads have been created and displayed. On September 28, 2007 the fundraising group hosted a second gala at Harborside Restaurant and historic Balboa Pavilion. As of October 10, 2007, the McFadden Square Centennial Legacy Project has been supported by over 400 individuals and businesses for a total funding of $346,467. Expenses to date total $53,772. The balance of funds raised is approximately $292,695. The fundraising group will be focusing on individual donors in the community for the remaining funds necessary to build the project. Staff obtained a cost estimate on September 28th for project work (does not include sculpture cost) including the following: the demolition necessary for the project; the installation of brick pavers; the installation for concrete (including sub slab), furnishing and installing the granite tiles and stone, installing the benches, etc. The estimate totals $709,000, including a 15% profit/overhead estimate and not including the sculpture cost. Mr. Svalstad believes that cost estimate to be excessively high, and after talking with some contractors who intend to bid on the project, he has obtained an estimate which is in the neighborhood of $575,000 for both hardscape and the sculpture. He also • McFadden Arre Centennial Legacy Project October 23, 2007 Page 4 believes once the project is approved by Council and gets underway, there will be an increased desire on the part of the public to contribute donations. Staff feels the need to point out there is always the potential the City will have to pick up a project shortfall, which at this time would be impossible to predict. Prepared by: Jana Barbier Cultural Arts Coordinator Submitted by: yir.a/ ry , Homer Bludau City Manager • Proposed Timeline McFadden Square Centennial Legacy Project General Building: January February 1 March May June 15 September 28 October 16 — Nov. October 15 October 23 November 12 - 14 November 16 November 30 December 11 Fundraising Locate architectural firms to do construction drawings Architectural firms on board for construction drawings Fundraising Continue fundraising Plans completed — committee review Submit plans to city for approval Fundraising event Harborside Restaurant, Balboa Pavilion 19 Contract bidding period Permits approved by City Council meeting, approval of selected artist Approval from Coastal Commission Open bids Final bidder selected for project City Council appropriate funds and awards construction contract December 12 Contractor orders granite for long lead times February 4, 2008 Construction /demo to begin April 15, 2008 Construction completed Sculpture: February 15, 2007 May 1 June 1 June 7 —August 15 August 15 October 23 April 15 — May 1, 2008 Last revision: 10/15/2007 9:19:40 AM Prospectus to artists Deadline for proposals Select 3 finalists Finalists travel to Newport Beach Models submitted Council approval of artist Delivery of Sculpture to site �McsF acavProectr 4 r? 1 Secure your place are whgrrOw� . hfS t ®v� ®wy� ,Take advantage ofia "once a ;.century" o ortunit to have,your name etth'ed m pp Y stone as part of this permanents P.ubhc Art and` Wn o Beautification Pr ect ,,1 t Donor recognition`opportunities for individuals and businesses are available; . ;= . fieginning'at $2500 For mope information, call the Arts & %Cultural{ s Serv:ices,,office at:.(,949) 717= 3,870'or;uisit'thef k website �tw,w,w:newportbeach100com _ 0 AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND ARTIST HANK KAMINSKY FOR THE MCFADDEN SQUARE CENTENNIAL LEGACY PROJECT ARTWORK THIS AGREEMENT is made and entered into as of this _ day of October, 2007, by and between the CITY OF NEWPORT BEACH, a Charter City and Municipal Corporation ( "City "), and HANK KAMINSKY, an individual whose address is 808 Government Avenue, Fayetteville, Arkansas 72701 ( "Artist"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. To commemorate the City's 100 -year anniversary of incorporation, the City is planning to conduct an urban beautification project at McFadden Square, which is located at the base of the Newport Pier and is often referred to as the "Birthplace of the City" (hereinafter referred to as the "Site "). The City's plans call for an impressive piece of art to be located in the center of the square, surrounded by a circular- shaped public plaza. C. City desires to commission Artist to design, fabricate, deliver and install a bronze sphere sculpture five feet in diameter to be the focal point of the McFadden Square Centennial Legacy Project. City desires to have the artwork installed at the Site on or before April 1, 2008. D. Artist is an internationally recognized Artist who has a specialty in creating bronze sculptures of the type desired by City. E. City has solicited and received a proposal from Artist, has reviewed the previous experience and evaluated the prior work created by Artist, and desires to commission Artist to create, design and install the sculpture under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and unless terminated earlier as set forth herein, shall extend until written final • acceptance by City of the Artwork, or submission of final payment to the Artist by City, whichever is later. 2. ARTIST'S OBLIGATIONS 2.1 Artist agrees to design, fabricate, deliver, and install, in a satisfactory and proper manner as determined by the City, the following Artwork: A bronze sphere five (5) feet in diameter with words and images sculpted in low relief on the surface which illustrate the past, present and future of the City of Newport Beach, California (hereinafter referred to as the "Artwork'). 2.2 Artist agrees to ensure that the Artwork is durable, taking into consideration that the Site is an unsecured public space that may be exposed to elements such as harsh weather and ocean air. 2.3 The Artist shall arrange the transportation and installation of the Artwork in consultation with the City's Public Works Department, and Artist shall supervise the installation. 2.4 Artist shall provide required insurance in the amounts and limits specified in Paragraph 12. 2.5 Upon installation of the Artwork, the Artist shall provide the City with written instructions for appropriate maintenance and preservation of the Artwork as outlined in Paragraph 7 below. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and Artist has agreed to have the Artwork completed and installed at the Site on or before April 1. 2008 (hereinafter referred to as the "Delivery Date "). 3.1 If the Artist fails to complete installation by the Delivery Date set forth herein, the Artist may request, in writing, an extension from the City. The granting of any extension shall not affect any other provision of this Agreement. If the Artist fails to complete installation within the time set forth herein and any extensions thereto, the City may at its option deduct five (5 %) percent of any balance due for every 30 days the Artwork's installation is not completed. 7 0 0 3.2 In order to receive payments as set forth above, the Artist must submit a signed and dated invoice to the City for approval. 4. COMPENSATION TO ARTIST As full payment for the Artwork and all rights described in this Agreement, City shall pay the Artist One Hundred and Ten Thousand Dollars and no /100 ($110,000.00), which shall constitute full compensation for the Artwork, including, but not limited to, fees, materials, transportation, insurance and shipping of the Artwork to the Site, and any costs incurred by the Artist for installation of the Artwork at the Site, as well as the associated rights described in this Agreement (hereinafter referred to as the "Purchase Price "). No changes to the Purchase Price shall be made during the term of this Agreement without the prior written approval of City. 4.1 Task and Payment Schedule. Artist shall be paid according to the task and payment schedule attached hereto as Exhibit A and incorporated in full by this reference. 4.2 Taxes. Any state or federal sales, use or excise taxes, or similar charges related to the services to be provided hereunder shall be paid by the City. 4.3 Social Security Number. The Artist agrees to provide City with the Artist's correct social security number upon the execution of this Agreement. 5. FABRICATION AND INSPECTION 5.1. The Artist shall fabricate and install the Artwork in substantial conformity with the Design, attached hereto as Exhibit B and incorporated in full by this reference. The Artist may not deviate from the approved Design without written approval of the City. 5.2. Artist agrees to furnish the City with progress reports and photographs of the work as requested by City. The photographs may be digital images and sent by e -mail. The City shall also have the right to review the Artwork at the Artist's studio while in any phase of the process of fabrication upon reasonable notice. 5.3. If the City, upon review of the Artwork, determines that the Artwork does not conform to the Design, the City reserves the right to notify the Artist in writing of the deficiencies and that the City intends to withhold the next payment installment. The Artist will promptly cure the City's objections and will notify the City in writing of completion of the cure. 3 0 0 5.4. The Artist shall notify the City in writing when fabrication of the Artwork has been completed and is ready for delivery and installation at the Site. 5.5. The City shall inspect the Artwork within five (5) days after receiving notification pursuant to Paragraph 5.4 to determine that the Artwork conforms with the Design and to give final approval of the Artwork. The City shall not unreasonably withhold final approval of the fabricated Artwork. 6. INSTALLATION 6.1 Upon the City's written final approval of the fabricated Artwork, the Artist shall deliver and install the completed Artwork at the Site. Transportation and handling fees shall be paid by the Artist. 6.2 The Artist will coordinate closely with the City to ascertain that the Site is prepared to receive the Artwork. Artist may not install the Artwork until authorized to do so by the City. 6.3 The City agrees to coordinate discussions with the Artist for the completion of any site preparation that is not a part of the Artwork but is necessary for its installation. The Artist will work with the City in designing the placement of the Artwork at the Site and will monitor the subcontractor(s) making any footings, site preparations, etc. The Artist shall be responsible for all expenses, labor and equipment associated with the Artwork and its installation. The Artist shall not be responsible for preparation of landscaping, if any, or structural footings, except for the installation of the Artwork on its attached foot, or public access or public security for the Artwork. 6.4 The Artist shall be present to supervise the installation of the Artwork. The Artist shall notify the City when installation is complete. 6.5 The City shall have 10 days after it receives notice that installation is complete to review the Artwork and the documentation submitted pursuant to Paragraph 7 below. The City shall then either accept the Artwork and notify the Artist in writing of its acceptance, or it shall submit to the Artist a written list or report of any deficiencies in either the Artwork or the documentation. This list or report shall allow the Artist a reasonable time for correcting any deficiencies. When all deficiencies so listed or reported are corrected to the reasonable satisfaction of the City, it shall accept the Artwork and notify the Artist in writing of its acceptance. 0 0 0 The effective date of final acceptance shall be the date the City submits written notice to the Artist of its final acceptance of the Artwork. Title to the Artwork passes upon final acceptance and final payment, subject to the warranties and further performance obligations set forth herein. 6.6 Upon written final acceptance, the Artwork shall be deemed to be in the custody of City for purposes of Section 8. 7. MAINTENANCE Within ten (10) days following completion of installation, the Artist shall submit a written technical description and maintenance report specifying maintenance needed by the Artwork, along with product data sheets for any material or finished used. This report shall include any cleaning procedures, and materials to avoid, and information such as paint or cleaning formulas that are necessary or desirable for good maintenance and conservation practices. The Artist will assist the City in establishing an effective program of maintenance of the Artwork without additional cost to the City for a period of 12 months following final written acceptance. The City shall have the right to authorize maintenance and conservation procedures to be performed on the Artwork; however, the City agrees to make reasonable attempts to seek the advice of the Artist before authorizing any procedures not specified in the Artist's maintenance report. The City agrees further to use only qualified conservators and art handlers in performing any conservation work. 8. RISK OF LOSS The Artist shall bear the risk of loss or damage to the Artwork until the City's written final acceptance of the Artwork under Section 6.5. The Artist shall take such measures as are reasonably necessary to protect the Artwork from loss or damage. 9. WARRANTIES 9.1 Warranties of Title. The Artist represents and warrants that: (a) The Artwork is solely the result of the artistic effort of Artist; (b) The Artwork is unique and original and does not infringe upon any copyrights or the rights of any third person; (c) The Artwork (or duplicate thereof) has not been accepted for sale elsewhere; (d) The Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Artwork or any element thereof or any copyright related thereto which may affect or impair the rights 0 granted pursuant to this Agreement; and (e) The Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement. These representations and warranties shall survive the termination of this Agreement. 9.2 Quality and Condition. The Artist represents and warrants that: (a) The fabrication of the Artwork will be performed in a workmanlike manner; (b) The Artwork, as fabricated and following installation, will be free of patent and latent defects in material and workmanship, including any defects of "inherent vice" or qualities that cause or accelerate deterioration of the Artwork; and (c) reasonable maintenance of the Artwork will not require procedures substantially in excess of those described in the maintenance recommendations to be submitted by the Artist to the City hereunder. The warranties described in Section 8.2 shall survive for a period of one (1) year after the Acceptance of the Artwork, except the representation and warranty concerning latent defects shall survive for a period of three (3) years from the Acceptance of the Artwork. The City shall give notice to the Artist of any observed and claimed breach with reasonable promptness. The Artist shall, at the request of the City, and at no cost to the City, cure reasonably and promptly the breach of any such warranty that is curable by the Artist and which cure is consistent with professional conservation standards (including, for example, cure by means of repair or refabrication of the Artwork). 10. ADMINISTRATION This Agreement will be administered by the Library Services Department. Jana Barbier, Cultural Arts Coordinator, shall be the City Administrator and shall have the authority to act for City under this Agreement. The City Administrator or his/her authorized representative shall represent City in all matters pertaining to this Agreement. 11. ARTIST AS INDEPENDENT CONTRACTOR The Artist agrees to perform all Artwork under this Agreement as an independent contractor and not as an agent or employee of the City. The Artist acknowledges and agrees that the Artist shall not hold himself out as an authorized agent of the City with the power to bind in any manner. R • • 12. INSURANCE Artist shall obtain, provide and maintain at his own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Artist shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. B. Coverage Requirements. L Commercial General Liability Coverage. Artist shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including, without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Contract, or the general aggregate limit shall be at least twice the required occurrence limit. The certificate evidencing Commercial General Liability Coverage must be approved by City's Risk Manager prior to commencement of performance under this Agreement. ii. Transportation /Cartage Insurance All -risk. Coverage must include loading, transportation, and unloading of the Artwork. If the Artwork is to be loaded, transported or unloaded by a person or entity other than the Artist, the insurance coverage must cover that person or entity. The minimum limit shall be the total amount of compensation paid to Artist through the date of loading. The certificate of insurance must be delivered to and approved by the City before the Artist's Artwork is loaded. iii. All Risk Installation Insurance. Coverage must include physical damage to or destruction of the Artwork. If the Artwork is to be installed by a person or entity other than the Artist, the insurance coverage must cover that person or entity. The minimum limit shall be the total amount of compensation paid to Artist through the date of the beginning of installation of the Artwork. The certificate of insurance must be delivered to and approved by the City before the Artist's Artwork is installed. 7 L 0 C. Endorsements. The policies required herein shall each be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Artist. 13. INDEMNIFICATION Artist shall indemnify, defend and hold harmless the City, its officers, agents and employees (each a "Covered Party") from and against all liabilities, obligations, losses, damages, judgments, costs or expenses (including legal fees and costs) (collectively "Losses ") arising from, or in connection with or caused by (a) any personal injury or property damage caused, directly or indirectly, by any act or omission of Artist, its subcontractors, agents or employees, including those that may be caused during transportation or installation of the Artwork; or (b) any infringement of the patent rights, copyright, trade secret or any other proprietary right or trademark and all other intellectual property claims of any person or persons in consequence of City's acceptance of Artist's work. Artist shall have no obligation under this Section with respect to any Loss that is caused solely by the active negligence or willful misconduct of a Covered Party. This indemnification shall survive the termination or expiration of this Agreement. 14. ASSIGNMENT The Artwork and services required of the Artist are personal and shall not be assigned, sublet or transferred. Any attempt by the Artist to assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect unless prior written consent is given by City. 15. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Artist and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Artist to City shall be addressed to City at: rl 0 0 City of Newport Beach Central Library Attn: Jana Barbier Cultural Arts Coordinator 1000 Avocado Avenue Newport Beach, CA 92660 Phone: (949) 717 -3870 Fax: (949) 640 -5681 All notices, demands, requests or approvals from City to Artist shall be addressed to Artist at: Mr. Hank Kaminsky The Village Sculptor 808 Government Avenue Fayetteville, Arkansas 72701 Email: sculptor(a-)kaminskv.com Phone: (479) 442 -5805 Fax: (479) 442 -3927 16. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Artist. In the event of termination under this Section, City shall pay Artist for services satisfactorily performed up to the effective date of termination, consistent with the schedule of payments set forth in Section 4.1. 17. INABILITY TO PERFORM AGREEMENT If the Artist is unable, for any reason, to conceive, produce, or install the Artwork as agreed upon (other than the inability of City to perform hereunder), the Artist shall return all money paid to him. If any equipment and /or materials have already been purchased, the Artist shall keep those items and return the full Purchase Price to City. A i • In the event of death or disability of the Artist prior to installation of the Artwork, the City may terminate this Agreement and receive a refund of all amounts paid hereunder unless the Artist's executor proposed an acceptable successor artist to complete the Artwork that is approved by the City in its sole discretion. 18. TITLE AND OWNERSHIP Title to the Artwork shall transfer from Artist to City upon the City's written final acceptance and final payment of the Purchase Price as outlined in Section 4.1. Title transfer shall be self- executing upon City's payment. Artist grants City title to and ownership of the Artwork, including the right to reproduce the Artwork, and images thereof. City shall make reasonable efforts to ensure that reproductions or publications that prominently feature the Artwork contain a credit to the Artist. In the event that City's use of the Artwork creates trademark, service mark or trade dress rights in connection with the Artwork, City shall have an exclusive and irrevocable right in such trademark, service mark or trade dress. The Artist is authorized to produce duplicates of the Artwork with the specific permission of the City. The City agrees to comply with the provisions of the Visual Artists Rights Act of 1990. 19. SIGNAGE The City agrees to be responsible for the placement of a sign in association with the Artwork in accordance with practices for the identification of artworks in public settings. 20. DEACCESSION RIGHT The City may remove the Artwork from the Site if it determines that the Artwork represents a safety hazard in its present condition or cannot reasonably be restored to its original aesthetic integrity due to technical difficulties or expense disproportionate to the value of the Artwork. The City has no responsibility to restore, or replace the Artwork if it is damaged. If the Artwork can be removed from the Site without the destruction, distortion, mutilation or other modification of the Artwork, the City shall notify the Artist of its intended action. Such notice shall be in writing and sent by registered mail to the Artist at the most recent address of the Artist that was recorded with the Register of Copyrights or, if such address has not been recorded with the Register of Copyrights, the notice shall be sent to the address furnished by Artist as required by Paragraph 15. Within ninety (90) days after receiving such notice, the Artist shall 10 • i have the right to remove the Artwork or pay for its removal. If, however, the Artist does not respond within the ninety day period or notifies the City in writing, within the ninety -day period, or the waiver of said right, the City may proceed with removal of the Artwork. 21. SITE PROTECTION The City shall guarantee the integrity of the installation site essentially as it is at the time the Artwork is placed. The City will not significantly alter landscaping or other architectural elements so as to obstruct or deter the view of the Artwork. Should the City deem it necessary to significantly alter the site, the Artwork may be relocated pursuant to the provisions outlined in Paragraph 22. 22. CHANGES IN LOCATION OR SITING The City shall have the right to change the location or siting of the Artwork when, in the opinion of the City, such a change is deemed necessary. The City shall notify the Artist of any such change; such notification shall be made before the change, if possible. 23. WAIVER No waiver of performance by the City shall be construed to be or operate as a waiver of any subsequent default of any terms, covenants and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or ' acceptance of defective performance. 24. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 25. CONTROLLING LAW AND VENUE This Agreement, regardless of where executed or performed, shall be governed by and construed in accordance with the laws of the State of California. Any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 11 • 0 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: Robin Clauson City Attorney for the City of Newport Beach ATTEST: By: LaVonne Harkless City Clerk ARTIST: Hank Kaminsky The Village Sculptor CITY OF NEWPORT BEACH, A Municipal Corporation By: Steve Rosansky Mayor for the City of Newport Beach Attachments: Exhibit A — Task and Payment Schedule Exhibit B — Design Proposal Fusers/CAT /shared /AG /Artwork (Public)/DonnaBigi /Revised Contract with Hank Kaminsky.doc 12 0 Retainer: • s EXHIBIT A TASK AND PAYMENT SCHEDULE Upon execution of the Agreement, City shall pay Artist $10,000.00, which shall be used to perform the historical research necessary to design the Artwork and to pay for any insurance policies required under the Agreement. Stage 1 (Initial Design): Following completion of the data gathering process, Artist shall design the graphic and a clay model of the Artwork. • Artist shall submit photographic evidence of the clay model to the City for approval. • Upon approval of the clay model, City shall pay Artist the first installment payment of $30,000.00. • Deadline for completion of Stage 1 is December 15, 2007. Stage 2 (Final Design): Artist shall build a full -size clay piece of the Artwork. • Artist shall submit photographic evidence of the clay master pattern to the City for approval. • Upon approval, City shall pay Artist the second installment payment of $30,000.00. • Deadline for completion of Stage 2 is February 1, 2008, Stage 3 (Casting & Installation): Artist shall mold and cast the approved design in bronze finish and install the Artwork at the Site on or before April 1, 2008. Upon the City's final acceptance of the Artwork, the final payment of $40,000.00 shall be due on May 1, 2008. 13 �Y -.Y f I '1�'f �'•�y)� {N.10 � � ���.1J,��jd ''y . rat y7s��,R`��-e� , a �sgiry'�f?5'A a f�• 1. .� Y ��4�W 1 R i'�I �f 9�1�'I�F� k lS =. P�,Nslly 808 S. GOVERNMENT AVE FAYETTEVILLE, AR 72701 4M412.5805 vulptor@kaminsky.com w ..sculptor kammsky.com Valley House, Dallas TX resume gallery representation education 1983 -85 University of Arkansas, B.A. with High Honors in Art 1963 -65 Pennsylvania Academy of the Fine Arts under Harry Rosen, Paul Anthony Greenwood and Walker Hancock. Full tuition scholarship 1962 New School for Social Research under Seymour Lipton. 1961 -62 Art Students League under Jose de Creeft and John Hovahness. 1956 -61 Queens College, Flushing, NY with Elias Freidensohn and William Kreuger commissioned sculpture and public art 2005 "Portal" a sculpture for the Ozark Woodland Sculpture Garden, a program of the University of the Ozarks (to be destroyed 2006 due to demise of the garden) 2003 -04 Fountain sculpture for Washington Regional Hospital, Fayetteville AR Contact Bill Rogers, foundation director 479- 713 -1711 2002 -03 Fountain sculpture for city of Clinton. Arkansas Contact. Roberta Katz- Messenger, Director 501- 745 -4589 2001 -02 World Peace Prayer Fountain sculpture for the city of Fayetteville AR. Installed December 31, 2002 at Town Center on the Square Contact. Marilyn Johnson. Director 479- 587 -9944 2000 Fountain sculpture— Arsagas Block Street Bakery, Fayetteville, AR. Contact- Cary Arsaga 501 -442 -7768 1999 -02 Series of tabletop fountain sculptures sold through galleries and decorators. 1999 Grave Marker for Virginia Jackson at Mount Comfort Cemetery, Fayetteville, AR. 1998 Peace Rock —a private peace memorial at the home of Professor James R Bennett in Fayetteville AR. Contact: Dick Bennett 501- 442 -4600 1997 "The Miracle of the Double Helix" monumental bronze sculpture of a symbolic DNA molecule made of words installed at University of Arkansas for Medical Sciences, Little Rock, AR. Contact. Harry Ward, former Dean UAMS, Little Rock 1992 Bronze Donor Stars and sidewalk design for the Arts Center of the Ozarks "Walk of Stars," Springdale, AR. Contact Kathy Blundell, 501 - 751 -5441 1992 Door Handles for KFSM -TV Fayetteville and Fort Smith, AR 1991 "Business For The Arts" Award, Chamber of Commerce, Fayetteville, AR. commissioned sculpture and public art cont'd 1990 Set of Communion Vessels and Candle fixtures for the First United Presbyterian Church, Fayetteville, AR. 1986 "Islands in the Sea" for Temple Shalom, Fayetteville, AR. 1986 "Yahrzeit" for Temple B'nai Israel, Little Rock, AR. 1965 "Eternal Light' and "Burning Bush" for Eisendrath Memorial Chapel Kresgeville, PA. commissioned portrait and figurative sculpture 2006 Bronze Bust of Ralph Martin for the Ralph Martin Chemical Engineering Dept. University of Arkansas, Fayetteville AR 2006 Bronze Bust of Dr. Fay Boozman for the Fay Boozman College of Public Health, UAMS, Little Rock AR 2003 Double bust of Bob and Marylin Bogle for Womens Athletic Center University of Arkansas, Fayetteville AR. Contact Bev Lewis 479 - 575 -4959 2001 Sculpture of a Razorback Hog for the University of Arkansas, Fayetteville AR. Contact: Charlotte Taylor, 501- 575 -7384 2001 Bust of Alice L. Walton for Northwest Arkansas Regional Airport Contact: Scott Van Laningham 501- 205 - 1000, x2228 2001 McClinton Fountain of Education, Fayetteville AR. Contact: Roy Carr, 501 - 973 -8629 1999 Portrait bust of Sam Walton for Walton College of Business Administration, Fayetteville, AR. Contact: Donnie Williams, 575 -5949 1997 High Relief portrait plaque honoring Louise Bell at Fayetteville High School, Fayetteville, AR. Contact: Principal, Fayetteville High School 1996 Medal of the Dale Bumpers College of Agricultural, Food and Life Sciences, Fayetteville, AR, Contact: Dean of the College of Agriculture UAF 1995 Bronze Double bust of Pat and Willard Walker, Arkansas Cancer Research Center, Little Rock, AR. 1995 Bronze bust of Leland Tollett, Center of Excellenoe in the Poultry Sciences, University of Arkansas, Fayetteville, AR. 1995 Bronze bust of Deane R. Boswell, Bryant Civic Center, Bryant, AR. 1994 Bronze Bust of Wilbur Mills now in 18 copies including one at the State Capitol Little Rock AR. and other areas in Arkansas and in Washington, D.C. 1993 Engineering College Medal, University of Arkansas 1991 Double Portrait Bust of Bernice and Harvey Jones for Jones Eye Institute, Little Rock, AR. 1991 Fulbright College Medal, University of Arkansas 1990 High relief portrait of Senator J. William Fulbright and monument design for City of Fayetteville, AR. 1989 James Hudson Pride Award, Hudson Foods, Rogers, AR. 1989 Plaque for Nettie Boles photograph, University of Arkansas 1988 Relief portrait of O.C. Bailey, University of Arkansas 1987 Fulbright College Scholars Medal, University of Arkansas 1987 Bust of Irma Giffels, University of Arkansas 1987 -2005 More than 900 private portrait commissions in the Mid -South region. 1986 A relief portrait of George W. Combs, University of Arkansas 3 selected juried and invitational exhibitions 1990 Hendrix College Sculpture /Drawing Invitational, Conway, AR. 1986 All Arkansas College and University Art Exhibition, Arkansas Art Center, Little Rock, AR. 1986 -87 Faculty Show, University of Arkansas, Fayetteville, AR. 1985 Governors Exhibition, Little Rock, AR. 1984 "Currents 84," Hot Springs, AR. 1982 -85 The Sequoyah Show, University of Arkansas, Fayetteville, AR. 1979 -80 Prints, Drawings and Crafts Exhibition, Arkansas Arts Center, Little Rock, AR. 1977- Portfolio File of the American Crafts Council, New York 1978 "Craftsmen of the Southeast," Birmingham Museum, Birmingham, AL 1976 -81 Distinguished Artists Exhibition, Little Rock, AR. 1976 -77 Eureka Artists Traveling Exhibition, Arkansas 1970 "Museum -A Project of Living Artists," New York City 1968 Audubon Artists Show, National Academy of Art, New York City 1967 -69 Brata Gallery, New York City 1966 -67 Robert J. Schoelkopf Gallery, New York City 1966 Poindexter Gallery, New York City 1964 The Philadelphia Gallery, Philadelphia, PA. 1964 Pennsylvania Academy of the Fine Arts, Philadelphia, PA. 1963 -64 Hinckley and Brohel Gallery, Washington, DC. 1961 -63 The Drawing Shop, New York City selected solo exhibitions 1993 Art Center of the Ozarks, Springdale, AR - Inaugural Show 1989 Itawamba Community College, Fulton, MS. 1985 University of Arkansas Union Gallery, Fayetteville, AR. 1984, Fort Smith Art Center, Fort Smith, AR. 87,91 1983 Arkansas Arts Council's gallery, Little Rock, AR. 1979 Arkansas Territorial Restoration gallery, Little Rock, AR selected awards 2004 Arkansas Peace and Justice Heroes Award, Omni Center for Peace, Justice and Ecology, Fayetteville, AR 1997 Lay Service Award, Fayetteville Education Association (for work with High School students) 1993 Certificate of Recognition, State of Arkansas (public service to the state) 1986 High Honors in Art, University of Arkansas, Fayetteville, AR. 1985 Harold Hantz Award (for paper below), University of Arkansas, Fayetteville, AR. Arkansas Arts Council Grant for Sand Casting Paper El awards cont'd 1983 Yoes Memorial Scholarship, University of Arkansas, Fayetteville, AR. 1983 David Durst Award, University of Arkansas, Fayetteville, AR. 1983 Award of High Achievement, Symphony Guild Annual Fair, Denver, CO. 1981 Award of Merit in Jewelry, Arkansas Arts, Crafts and Design Fair, Little Rock, AR. 1977 Award of Excellence, Mid -South Craft Fair, Memphis, TN. 1977 Purchase Award, Septemberfest, Midland, TX. teaching experience 2006 Sculpture instructor, University of Arkansas, Fayetteville AR 2005 Visiting Artist, Ozark Woodland Sculpture Garden, University of the Ozarks 2005 Workshop in sand -matrix design for students and teachers of Northwest Arkansas, with exhibition, Walton Art Center, Fayetteville AR 2001 -03 Supervised internships for graduate students from the U of A Fayetteville art department in studio. 2002 Visiting Artist, Ozark Sculpture Garden 2000 Visiting Artist Kansas City Art Institute Kansas City, MO. 1994 Lecture - Demonstration, Oklahoma Sculpture Society, Oklahoma City, OK 1994 Adjunct Assistant Professor of Art, University of Arkansas, Fayetteville, Granted graduate status 2001 1993 Rogers Art Guild, Rogers AR Lecture- Demonstration 1993 -00 Established with JoAnn Kaminsky: "The Art Experience" a Fayetteville Arkansas Community Art School, taught Studio Sculpture Classes. 1989 Portrait sculpture and metal casting workshop, Itawamba Community College, Fulton, MS 1989 Lecture- Demonstration, Branson, MO. 1989 Lecture- Demonstration, Springfield Art Museum, Springfield MO. 1988 Portrait sculpture workshop, McAlester, OK. 1983 -88 Adjunct Assistant Professor, University of Arkansas 1979 Instructor, SWEST Annual Casting School, Dallas, TX. 1968 -70 Private studio sculpture classes, Great Neck, NY. 1967 -70 Technical Assistant and facilities manager, Cooper Union, New York City 1964 -68 Sculpture Counselor, Lincoln Farm Camp, Roscoe, NY. 5 My earliest work and educational experience is in the field of science and particularly electronics. I have worked as a test engineer at Hazeltine Electronics, American Bosch Arrna Corp. and at S &M Products Corp. in N.Y.C. (where I helped design a goff playing machine). My interest in the technology of art is reflected in my work at the Cooper Union in NYC (where I was employed as the facilities manager for the sculpture and architecture technical studios from 1967 -1970) and before that at Queens College where I served as ceramics technician while a student there. I operated a bronze foundry in my home and on one of my two European trips. Sinoe 1971 1 have been working with a technique I call °Sand -Matrix Design." An example of this technique can be seen in the sculpture "Miracle of the Double Helix" which I installed in 1997 in Little Rock at the University of Arkansas for Medical Sciences and more recently the World Peace Prayer fountain sculpture as mentioned below. I put myself through art school in Philadelphia by operating a service for sculptors. I have helped to form several organizations including the Brooklyn Free Press (a printing shop in New York), the "Museum -A Project of Living Artists," (a very large cooperative gallery in New York in the late 60's), The Eureka Brotherhood Cooperative and The Eureka Springs Guild of Artists and Craftspeople, both in Eureka Springs, AR. I was a founding member and first Vice President of the Artists of Northwest Arkansas. My business experience includes The Great Eureka Forgery (research and marketing of sandcast metals), A Show of Hands, Inc. (a crafts gallery in Eureka Springs, AR) and the Kaminsky Limited Partnership (a gold and gemstone business) in the late 70's. From 1992 to 2001 my wife and I operated a community Art School in Fayetteville AR called "The Art Experience" which also housed her art therapy and counseling office, my sculpture studio and the sculpture services business. In 2001 1 moved my studio to a new, much larger building, which 1 call °The Village Sculptor." In this 6000 square foot studio the World Peace Prayer fountain was produced. This spherical bronze fountain is covered with the words "May Peace prevail on Earth" and sits at the Town Center in Fayetteville, Arkansas. It was completed and installed on New Years Eve 2002. The studio now serves as a facility capable of both large and small productions. In 2004 1 completed a large scale fountain sculpture project for the Washington Regional Hospital in Fayetteville, AR. Then followed a 2 year period concentrating on personal works intended for gallery exhibition. I am currently working on a variety of proposals including one for the corporate community called "The Sculpture of Corporate Citizenship" This work incorporates words and images that deal with corporate ethics. HANK KAMINSKY 808 SOUTH GOVERNMENT AVENUE ■ FAYETTEVILLE. AR 72701 ■ TEL 479 -442 -5805 ■ FAX 479- 442 -3927 E -MAIL SCULPTORQKAMINSKY.COM ■ VVWWSCULPTOR.KAMINSKY.COM Top::. .. 2002 Fayette: . J 'Dia Bottom kR Rae P4dc 1998. � colecnon. core+ 4' . 2 . 3'. Bottom r ,rc 'ip;a Pe c Prow Fo ,, (detai). PnetorNft:1 ^ BaaeF. The World Peace Prayer Fountain Sculpture Fayetteville, Arkansas 2002' One of those rare monuments to peace, rather than war, the 10 -foot diameter bronze globe "floats" on a reflecting pool. Sculpted in relief on its surface is the phrase, "May peace prevail on earth" in over 100 languages. Hand lettered in clay at full size, cast into manipulated sand molds in 42 sections, the sculpture took a crew of twenty 16 months to complete. Cast bronze and water r� A� T\7�\ The Miracle around with a badge and a notebook �~ of the Double Helix gathering words for the surface. University of Arkansas Medical School Little Rock, Arkansas This sculpture was the result of a three- pear process as the institution and the lust as the DNA molecule contains the artist learned how to work together to code of life, this sculpture contains the produce the right symbolic work for the .'code" of the medical school. site. The process of placing sculpture in public Bronze cast in manipulated sand molds places is a dialog between the community with ferric and sulphate patinas and the artist. I use an ethnographic Granite process to find the meaning for the sculpture understood by the community. At this hospital /school 1 did a series of interviews, meetings and just wandering r Words for Healing Washington Regional Hospital, Fayetteville, Arkansas Words emerge from the falling water as if they were a part of the earth itself. A small group of hospital administrators, medical staff and donors met with the artist to talk about their feelings about the sculpture and its meaning in the hospital community with particular relationship to the donors and their place in the hospital and larger community. We gathered words which were used in the sculpture: "Words for healing "... Bronze cast in manipulated sand molds Water, local natural stone, koi r. Nor t • MI M • Cloud Language The angels, you know, speak in a more visual, less verbal language. Even we may be the utterances of angels. One of my favorite poets, Rilke, asks in the 9th Duino Elegy for us to speak to the angels: "Speak to them things," he said, "they'll stand amazed as once you stood beside a potter by the Nile or a weaver in ancient Rome" I have made these sculptures as tributes to that notion. They are pictures of what I dream the angels say to us. Variation 2 Bronze, steel with rust patina One of 6 projected variations In a Mountain Valley Seen from a satellite image this steep valley in the Andes Mountains of Peru seems covered with tiny structures that are perhaps libraries, places where some knowledge is stored. The mountains themselves almost seem manmade. That they are deliberate structures has been debated. Major fault lines and other geologic structures are offered acknowledgement and in some places, it seems, worship. Version 1 (with poem by Miller Williams) Bronze, steel with rust patina One of 6 projected variations � '16'1 J� Solemn Mountain A single upthrust mountain, huge, strong, flat topped like Acoma, large features visible from a distance. A sacred place. Up close it is like a satellite view; a map of a city or perhaps planted forests. The words of Dr. King's Vietnam speech rise like grainaries on the floodplain. They appear and dissappear in and out of the plane, structures which are words. Variation I Cast bronze in manipulated sand molds Steel with rust patina I t ,i•� �.j jif L The Anvil Series The name of this group of sculptures refers to their shape. They came about as a gift from the process of casting metal. Each of these pieces is a slice from a defective casting of the sculpture called "Solemn Mountain," which was about to be fed back into the furnace. I thought that they were so interesting as miniature landscapes that I decided to honor them with pedestals. Bronrx, steel, unique The Manhole Cover Series Perceive the world! Even in the most common places there is a chance to suddenly perceive new information. There, written into the ground itself, the words of the Peace Prayer. In this version I have mounted the piece on a Pedestal that connects in with the earth in a different way. The letters are hand - formed in clay, then cast in bronze in sand molds. These pieces are subject to variations — I enter the open sand mold and play with various forms and letters. This one is written with both Hebrewand Arabic, as well as Spanish and English. I'd love to drop one of these in a manhole in Jerusalem. Version I Sand cast bronze Steel with rust patina �I r• J A Brief Essay on Medicine This work comes from a sculpture that 1 made several years ago for the University of Arkansas Medical school in Little Rock, a work called "The Miracle of the Double Helix" 1 kept this flawed fragment in the studio a number of years and was always looking for a way to display it. In this construction I have enshrined it in a different attitude. Bronze, steel, unique rl yiu d XM � sa - Y ' r . The World Peace Prayer Fountain Sculpture Commissioned in 2000 for installation at the new Fayetteville, Arkansas Town Center, the 10 -foot diameter bronze globe "Floats" on a reflecting pool. Sculpted in relief on its surface is the phrase, "May peace prevail on earth" in over too languages. Water flows gently across the letterforms from the top, suggesting the unifying power of human compassion. Give the sphere a push to the right and it will rotate, like the earth spinning on its axis. I �. • L i Yyy ti • r Y 6 Hank Kaminsky is a New York City native with extensive formal education (more than 10 years) as a sculptor. He finds his inspiration in the natural world, so in 1971 he relocated to Eureka Springs, Arkansas. Today, he leads a team of sculptors in a 6,000- square -foot studio and foundry located in nearby Fayetteville. Kaminsky is recognized for his synthesis of spiritual energy and raw organic form. His work adorns thousands of private collections and public spaces. �V 809 Government Avenue Fayetteville, AR 72701 479- 442 -5905 www.sculptor.kaminsky.com ki �T F. f i I� yf The World Peace Prayer Fountain Sculpture began as potter's clay - more than four tons - hand formed over a welded steel armature. A team of sculptors then spent a combined 8,000 hours working the sphere with letters in relief, from translations provided by the World Peace Prayer Society. After molds were taken from the clay form, 42 bronze segments were poured in the studio's foundry and assembled into the finished four -ton sculpture. The piece was then transported on a Flatbed truck one mile for installation at the downtown Fayetteville Square. When the sculpture was complete, the original clay was allowed to shrink on the armature, breaking into over 800 pieces. Each fragment was fired and mounted so that art lovers, collectors, and peace advocates alike would be able to share the spirit of Kaminsky's art by displaying their own unique sculpture. The fragments are individual expressions of the sculptors' constant hours, days, weeks and y months of physical effort - a focused outpouring of prayer in human activity ... a living symbol of the world's aspiration for peace. Own a Fragment of Peace. You're being offered a rare opportunity to make this exquisite original work of art part of your life. A portion of the proceeds from each fragment sale benefits the World Peace Prayer Society. To learn more, visit www.worldpeace.org. Hank Kaminsky has been a sculptor since 1959: he trained in the classical figurative tradition at New York's Art Students League and the Pennsylvania Academy of the Fine Arts. In Arkansas he is best known for his World Peace Prayer fountain on the Fayetteville Square. He has also completed a number of formal portrait busts including a series for the University of Arkansas and the bust of Wilbur Mills in the Arkansas State Capitol Building The Mantelpiece Portrait is a three - quarter life -size sculpture appropriate for the home. It is finished in bronze or cast stone with lively surface modeling, and is mounted on a wood or marble base. Kaminsky developed the idea for the Mantelpiece Portrait from his sense of a place for portrait sculpture in fam- ily life: these portraits combine his talent for achieving a likeness with the budget concerns of the family. Although Kaminsky has sculpted many portraits of adults. the Mantelpiece Por- trait is especially suited for children for whom sitting still is difficult. He is skilled in making a child comfortable, while working quickly to capture his/her vitality in clay. The sitter is required for only a one -hour session. The rapidly done clay impression is developed later in the studio from photographs taken at the sit- ting. A second short "approval sitting " - -often as soon as the next day, com- pletes the process. Working at locations ranging from art galleries to jewelry stores. Kaminsky has made more than a thousand of these portraits in the mid - South region since 1984. The Life -size Finished Portrait in bronze is a more traditional portrait sculp- ture. The traditional method commonly requires many hours of sitting. However Kaminsky has devised a way to combine the many advantages of his Man- telpiece portraits with the requirements of these life -size sculptures. He asks the sitter to pose for several short one hour sessions, working in clay from life each day for three days. Then working �t from photographs, Kaminsky develops the clay work between sittings. After approval of the clay work he returns the sculpture to his studio for casting in plaster, a transi- tional material. The surface of the plaster is then carved, filed and sanded smooth, each feature of the face is carefully formed. Another mold is taken and the sculpture is cast in bronze. For more information call Hank directly at 479 -442 -5805 or write him at 808 S. Government Ave, Fayetteville, Arkan- sas 72701. Go to: www.sculptor.kaminsky.com for more information about the studio The tradition of the portrait sculpture reaches back to pre - history. For centuries it has been used to preserve the memories of cherished and honored individuals. Now it has become a unique way to capture family history or to express high regard for those we admire. A portrait sculpture is a story told about a person in clay and cast in bronze or stone by an artist. Each bit of clay represents one more word in this personal story as it is r j lated by the sculptor. Hank Kaminsky believes that the old world tradition of the portrait sculpture should be available to families. His portraits of adults and children pre- serve the aspirations and vitality of the family. Gaining access to a por- trait sculptor has never been easier. Now a sculp- ture studio is available at your request. Aa bronze "Mantelpiece Portrait" may be done of you or your child from life by sculptor Hank Kaminsky. A Portrait is a Story Told by an Artist X w0 ...to preserve the Aspirations and Vitality of the Family