HomeMy WebLinkAboutReso 222-06 Bray Commons Art in the Park
RESOLUTION NO. 222 - 06
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
APPROVING AN AGREEMENT WITH DUBLIN FINE ARTS FOUNDATION
AND BILL GOULD FOR BRAY COMMONS PARK ART IN THE PARK PROJECT
WHEREAS, in September of 1993 the Dublin City Council gave conceptual approval to the
Dublin Fine Arts Foundation's proposed "Art in the Parks" program; and
WHEREAS, since that time the Foundation has completed commissions in Alamo Creek,
Stagecoach, Mape Memorial, Kolb, Ted Fairfield, Shannon and Emerald Glen Parks; and
WHEREAS, as part of the Adopted 2003-2004 Goals & Objectives the Dublin City Council
approved a request from the Dublin Fine Arts Foundation to commission art for Bray Commons Park; and
WHEREAS, in September of 2006 the Dublin City Council approved the recommended artwork
for Bray Commons Park by Artist Bill Gould; and
WHEREAS, ifis necessary to enter into an Agreement with the Dublin Fine Arts Foundation and
Bill Gould to identify the services required and the responsibilities of each party.
NOW, THEREFORE, BE IT RESOLVED that the City of Dublin does hereby approve the
Agreement with the Dublin Fine Arts Foundation and Bill Gould, attached hereto.
PASSED, APPROVED AND ADOPTED this 5th day of December, 2006.
AYES: Councilmembers Hildenbrand, Oravetz, Sbranti and Scholz, and Mayor Lockhart
NOES: None
ABSENT: None
ATTEST:1.
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ABSTAIN: None
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Reso No, 222-06, Adopted 12/5/06, Item 4.2
Page 1 of 1
AGREEMENT
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THIS AGREEMENT is made and entered into as oftheftth day of~r, 2006 by and
between THE DUBLIN FINE ARTS FOUNDATION (hereinafter called the "DFAF"), BILL
GOULD with LIZARD SKIN STUDIOS (hereinafter called the "Artist") and the CITY OF
DUBLIN, a Municipal Corporation (hereinafter called the "City").
WITNESSETH
VlHEREAS, DFAF desires to commission and acquire a certain work of art (the"Work")
which has been conceived and designed by the Artist (hereinafter called "Wind, Shade, Light =
Tranquility") to be installed in the Bray Commons Park in Dublin, California; and
WHEREAS, DF AF desires to transfer ownership of title to City and City desires to accept
title to the Work, upon installation by Artist, final acceptance thereofby DF AF and City and full
payment therefore by DF AF; and
WHEREAS, the Artist desires to carry out this commission;
NOW, THEREFORE, the parties agree as follows:
1. COMMISSION. DF AF hereby commissions the Artist and the Artist hereby accepts the
commission and agrees to design and oversee the fabrication and installation ofthe Work which
shall consist of a wind driven kinetic sculpture that will react to the changing environment. It will
be designed with a concrete base supporting multiple 3" in diameter steel stems with steel canopy
forms at the top ofthe stems containing numerous suspended leaf shapes. The canopies will begin
at 12 feet and extend up to as high as 20 feet. Both the stems and canopy will be covered with a
coating of real copper which will be treated to patina. A maquette of the Work was submitted by
the Artist and approved by the Dublin Fine Arts Committee, on behalf of DF AF, and by the Dublin
City Council, on behalf of the City.
2. THE ARTIST'S SERVICES.
A. The proposal heretofore submitted by the Artist includes a model of the Work (the
"Maquette") and the proposed location of the work (the "Site) as described in No.1 above. DF AF
and the City have approved the Maquette and the Site. The Maquette shall remain the property of
the Artist.
B. The method of installation of the Work shall comply with all structural integrity and
safety requirements of the City's Public Works Department.
C. Following the signing of this Agreement, and at such time as the DF AF's financing is in
place, but no later than January 15,2007, DFAF shall issue a written "Notice to Proceed" to the
Artist which shall authorize the Artist to proceed with the fabrication ofthe Work. Said Notice to
Proceed shall be accompanied by the payment described in Paragraph 3 (A) (1) ofthis Agreement.
The Artist agrees to complete the fabrication and installation of the Work within six months from
the date of receipt of said Notice and payment. The notice to proceed shall be deemed received ten
(10) days after mailing by First Class mail.
Agreement - .M in the Park - Bray Commons
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D. The Artist hereby represents and warrants to DF AF and City that the Work is solely the
result of the artistic and creative effort of the Artist, is original, one of a kind, and does not
knowingly infringe upon any copyright. Notwithstanding the foregoing representation and
warranty, DF AF and City hereby acknowledge that Artist has used in the past and may use in the
future some of the same elements comprising the Work and the Artist reserves the right to use
elements and portions of the Work in other works of art in different configurations.
E. At DFAF's or City's request and expense, the Artist will execute and deliver to DF AF and
City any instruments that DF AF or City may reasonably require to confirm ownership of the Work,
or to enable DF AF or City to dispose of any rights therein. Following the completion of the
installation of the Work, the Artist agrees to sign, on request, photographs of the Work to be
submitted to it by DF AF or City to certify its authenticity.
F. Ifthe installation date is delayed by an event under the control ofDFAF or City, and the
Artist is fully prepared to begin installation ofthe Work, then DFAF or City shall pay the cost of
storage of the Work and moving the Work to and from the place of storage.
5. FORCE MAJEURE. Any delay in the performance by the Artist shall be excused if such
delay is caused by act of the City or DF AF, their agents, contractors, employees or by acts of God,
accident, war, war-like operations, civil commotion, riots, labor disputes, sabotage, governmental
acts, regulations or controls, fire or other casualty. Failure to fulfill contract obligations due to
conditions beyond either party's reasonable control will not be considered a breach of contract,
provided those obligations affected shall be suspended only for the duration of such conditions.
During the existence of any such conditions, both parties shall make reasonable efforts to protect
each other's property, equipment and inventory.
6. RISK OF LOSS. The risk ofloss or damage to the Work shall be borne by the Artist until
the Work has been completed and installed, and the Artist shall take such measures as are necessary
to insure the Work for the benefit of DF AF and City against loss or damage until final acceptance
ofthe Work by DF AF and the City, which shall not exceed thirty (30) days after final completion.
7. INSURANCE. The Artist agrees to procure at Artist's expense and to maintain through
fabrication, transportation, installation, and transfer of ownership title of the Work, insurance
against claims for injuries to persons or damages to property which may arise from or in connection
with the performance of the Work by the Artist or their agents, employees, representatives or
subcontractors.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
(I) Insurance Services Office Form Number GL 0002 (Ed. 1/73) covering comprehensive
General Liability and Insurance Services Offices Form Number GL 0404 covering Broad Form
Comprehensive General Liability; or Insurance Services Office Commercial General Liability
coverage ("occurrence Form CG 0001 ").
(2) Insurance Services Office Form Number CA 0001 (Ed. 1/78) covering Automobile
Liability, code 1 "any auto" and endorsement CA 0025.
B. Minimum Limits ofInsurance. A.rtist shall maintain limits no less than:
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B. The Artist retains all rights under the Copyright Act of 1976 and all other rights in and to
the work, except ownership and possession and except as such rights are limited by this paragraph.
The Artist grants to DF AF and City and their assigns an irrevocable right and license to make two-
dimensional reproductions of the Work for non-commercial purposes including, but not limited to:
(i) use in advertising, brochures, media publicity and catalogs or other similar publications; (ii) use
in promotional materials; (iii) reproductions for use in non-profit fundraising activities, but in such
uses, the Artist shall have the right of aesthetic approval of the image which approval shall not be
unreasonably withheld, provided that these rights are exercised in a tasteful and professional
manner. Where the Artist exercises a right of approval, such approval shall be deemed to have been
given if the City receives no response after 21 days' written notice.
Whenever the City, the DF AF and/or their assigns makes a two-dimensional reproduction of
the Wark, for any of the aforementioned approved purpos~s, the party making the reproduction
shall provide the Artist with notice of its intent to make the reproduction and with copies of the
reproduced images of the Work.
C. DF AF and City shall use their best efforts to give a credit in any publication, substantially
in the following form: "an original work by Bill Gould, commissioned by Dublin Fine Arts
Foundation, Bray Commons Park, Dublin, California". The Artist shall use his best efforts to give a
credit reading substantially "an original work by Bill Gould, commissioned by Dublin Fine Arts
Foundation for the Bray Commons Park, Dublin, California" in any publication or public showing
under his control of any two-dimensional reproductions of the Work.
D. City agrees to place a small plaque near the Work which describes the Work and identifies
Bill Gould as the artist who created the Work.
E. DF AF and City agree that they will not intentionally damage, alter, relocate, modify or
change the Work in anyway, and will take all reasonable precaution in order that it not be
damaged, altered or changed by anyone in any manner. In the event that the Work is damaged,
altered, modified, changed or otherwise in need of restoration, DF AF and City will make every
effort to arrange with the Artist for the restoration and to request the Artist's supervision of
restoration of the Work.
F. The parties acknowledge that the Work is a site-specific work and in no event may the
Work be exhibited or lent to others to exhibit separate from the Site without the prior written
consent of the Artist, which consent shall be based upon the opinion of the Artist, in her sole
discretion, as to whether the Work can exist as a work of art by them in the proposed new location.
G. Should the City decide to sell the Work, the Artist will have the first right of refusal to
purchase the Work upon the same terms as offered to others.
H. If, for any reason, the City ever intends to destroy the Work, it shall give written notice to
the Artist of its intention and shall give the Artist, collectively or individually, ninety (90) days to
recover the Work, at the sole cost ofthe Artist. Within thirty (30) days after receipt of notice, the
Artist shall notify City whether or not he intends to recover the Wark. If no notice is received from
the Artist within said thirty (30) day period, he shall be deemed to have waived his right to recover
the Work and City may proceed to destroy it. Upon recovery of the Work by the Artist, title shall
revert to the Artist's ownership and the costs of recovery between themselves.
Agreement - Art in the Park - Bray Commons
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11. CITY ASSUMPTION OJ: RIGHTS AND OBLIGATIONS. Upon transfer by DF AF of
ownership of title of the Work to City, City shall assume all rights and obligations of DF AF as set
forth in this Agreement, excepting any obligations whatsoever related to the funding of or payment
for the Work or any claims, suits, costs, damages or liabilities of any kind whatsoever associated
with the funding or payment of the Work.
12. TERMINATION. This Agreement may be terminated under the following
circumstances:
A. If the Artist fails to commence the installation of the Work on the installation date or to
complete the installation within a reasonable time thereafter (not to exceed thirty (30) days) and
such delay or failure to complete is not due to causes excusable by the terms of this Agreement,
DF AF may send written notice of default to the Artist setting forth a stated time in which to cure,
which time shall not be less than thirty (30) days, and if the Artist fails to cure and such failure is
not excusable by the terms ofthis Agreement, then DF AF may declare this Agreement terminated
and shall have the right to recover back all monies paid to the Artist hereunder.
B. The Artist will have the right to terminate this Agreement if, pursuant to Paragraph 3,
DF AF is more than sixty (60) days late in making any payment.
C. If the Artist is unable to complete the Work or to commence the installation on the
installation date because of illness or disability or because of events beyond the control of the
Artist, as provided herein, the time to complete the Work and its installation shall be extended by
the length of such interruption or interruptions, provided that in the aggregate the installation date is
not delayed more than six (6) months.
13. APPLICABLE LAW. This Agreement constitutes the entire understanding between the
parties with respect to the subject matter herein and no modification or amendment of any of its
provisions shall be valid unless in writing and signed by all parties. This Agreement is personal in
nature and may not be assigned by the Artist. This contract shall be governed by the laws of the
State of California.
14. NOTICE. All notices herein required shall be in writing, by certified mail, return receipt
requested, and shall be served on the parties as follows:
To DF AF at:
P. O. Box 2912, Dublin, California 94568
To City at:
100 Civic Plaza, Dublin, California 94568
To the Artist at:
394-A Umbarger Road, San Jose, Ca. 95111
Copies of all notices sent by the Artist, City or DF AF shall also be sent to Lynne Baer, 1020
Union St., No.2, San Francisco, California 94133.
Any of the above addresses may be changed by notice sent to the other party as herein
provided.
15. BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of
the heirs, executors and administrators, successors and assigns of the parties.
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