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HomeMy WebLinkAboutItem 4.12 AgmtStagecoachParkArt ~ . . e: .- CITY CLERK File # @]~[Q]~-~@] AGENDA STATEMENT CITY COUNCIL MEETING DATE: May 28, 1996 SUBJECT: Art in the Parks - Stagecoach Park Agreement. Report Prepared by: Diane Lowart, Parks & Community Services Director ... .,. EXHIBITS A TT ACHED: · · Stagecoach Park Agreement RECOMMENDATION: ~thOrize Mayor to Execute Agreement 9L' FINANCIAL STATEMENT: None DESCRIPTION: At the May 22, 1996 meeting of the Dublin City Council, the Council authorized the release of funds for the "Art in the Park" program sponsored by the Dublin Fine Arts Foundation. The funds were designated for the artworks to be placed at Stagecoach Park and Alamo Creek Park. In addition, the Council authorized the Mayor to execute an agreement between the City of Dublin, the Dublin Fine Arts Foundation and Alan Counihan, the artist for the Alamo Creek Park project. Attached is the agreement for the artist for the Stagecoach Park project. The agreement has been reviewed by the City Attorney and is similar to the agreement for the Alamo Creek Park project. Staff recommends that the City Council authorize the Mayor to execute the agreement. --------------------------------------------------~---------------- COPIES TO: Dublin Fine Arts Foundation ITEM NO. '1./:1 F:\DF AF\cc528ag.doc . . . AGREEMENT THIS AGREEMENT is made and entered into as of the day of ,by and between THE DUBLIN FINE ARTS FOUNDATION (hereinafter called the "DFA"), Twyla Arthur (hereinafter called the "Artist") and the CITY OF DUBLIN, a Municipal .. Corporation (hereinafter called the "City"). WIT N E SSE T H: WHEREAS, DFA desires to commission and acquire a certain work of art (the "Work") which has been conceived and designed by Twyla Arthur (hereinafter called "Arthur") to be installed in Stagecoach Park in Dublin, California; and WHEREAS, DFA desires to transfer ownership of title to City and City desires to accept title to the Work, upon installation by Artist, final acceptance thereof by DFA and City and full payment therefore by DFA; and WHEREAS, the Artist desires to carry out this commission; NOW, THEREFORE, the parties agree as follows: 1. COMMISSION. DFA hereby commissions the Artist and the Artist hereby accepts the commission and agrees to design and oversee the fabrication and installation of the Work which shall consist of taking three existing concrete _ areas and applying ceramic tiles to the surfaces (the left entrance wall will have a mosaic wagon wheel; the backs of the two entrance walls will have triangular benches mounted to the wall with tile seats and mosaic backs with a design of abstracted Oak trees; the main focus will be a mural bench created over the large semi-circular seating area in front of the playground) previously submitted by the Artist and approved by the Dublin Fine Arts Committee, on behalf of DFA, 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 descibed in No.1 above. DFA 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 engineers retained by DFA and the City's Public Works Department. - 2 - . C. Following the signing of this Agreement, and at such time as the DFA's financing is in place, but no later than June 30, 1996, DFA shall issue a written "Notice to Proceed" to the Artist which shall authorize the Artist to proceed with the fabrication of the Work. Said Notice to Proceed shall be accompanied by the payment described in Paragraph 3 (A) (2) of this Agreement. The Artist agrees to complete the fabricatiorYand 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. 3. FEES. A. DFA shall pay to the Artist, as the purchase price for the Work and the services to be rendered by the Artist, the sum of $10,000 to be paid in the following installments: · 25 % upon execution of the contract · 25 % upon delivery of all materials to the Site · 25% upon notice from the Artist that the work is finished · 25% upon final acceptance by the City B. The purchase price includes all of the Artist's costs and expenses in carrying out its obligations hereunder including materials, design, installation design, fabrication, transportation and installation of the Work. .' 4. RESPONSIBILITIES OF THE PARTIES. A. The Work shall be fabricated and installed by the Artist in conformity with the Maquette and the Proposal as presented to DFA and City subject to minor changes as are made necessary by the materials or the production process or as are deemed necessary or appropriate by the Artist to carry out the overall design. DFA and City understand that it may not be possible to create the Work precisely as depicted in the Maquette; however, if, during the fabrication process, Artist makes significant changes in size, imagery, color, type of mosaic, or other approved elements of the Work, Artist will notify DFA and City in writing and will receive DFA's and City's written approval prior to proceeding with changes. A significant change is any change in the scope, design, color, size, material, texture or location on the Site of the Work which affects installation, scheduling, Site preparation or maintenance for the Work or the concept of the Work as represented in the Maquette. City's approval may be given by its City Manager or his designee. B. The Artist will be responsible for arranging, supervising and paying all . costs associated with transporting the Work to the Site. . . . - 3 - C. The Artist represents and warrants that the Work, as fabricated and installed, will be free from any defects in materials and workmanship, and that the Work is free and clear of any liens or encumbrances from any source and of any kind or nature whatsoever. The Artist hereby represents and warrants that the work as fabricated and installed, including the design and materials, is suitable to withstand without cracking, chipEing, pealing, fading, rusting, or otherwise deteriorating, the climactic and environrfl~ntal conditions commonly experienced within and in the general vicinity of the City of Dublin. Such periodic conditions include but are not limited to temperature in excess of 100 degrees Fahrenheit and below 32 degrees Fahrenheit, high velocity winds, heavy rainfall and periods of very low humidity. The Artist shall guarantee the Work to DFA and City against all defects in its design, workmanship and materials for a period of three (3) years following the completion and written acceptance by DFA and City of the installation and if any such defects occur in this period, the Artist agrees to promptly and satisfactorily repair, correct, or replace the defective portion at the Artist's own expense. The final inspection of the Work by DFA and the City shall take place within seven (7) days after written request by the Artist. Final completion shall occur upon correction of all items noted in the final inspection. Upon completion of the installation of the Work and acceptance thereof by DFA and City, the Artist shall not be responsible for any damage inflicted on the Work by any third parties, or resulting from any defects in the technical and working drawings or engineering instructions and drawings provided by engineers retained by DFA and City. D. The Artist hereby represents and warrants to DFA 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, DFA 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 DFA's or City's request and expense, the Artist will execute and deliver to DFA and City any instruments that DFA or City may reasonably require to confirm ownership of the Work, or to enable DFA 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 DFA or City to certify its authenticity. F. If the installation date is delayed by an event under the control of DF A or City, and the Artist is fully prepared to begin installation of the Work, then DFA or City shall pay the cost of storage of the Work and moving the Work to and from the place of storage. ; - 4 - . 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 OF A, 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 re~sonable 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 of loss 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 A and City against loss or damage until final acceptance of the Work by DFA 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 his agents, employees, representatives or subcontractors. as: A. Minimum Scope of Insurance. Coverage shall be at least as broad (1) 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. than: B. Minimum Limits of Insurance. Artist shall maintain limits no less (1) General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be. twice the required occurrence limit. . .' . - 5 - (2) Automobile Liability: $300,000 combined single limit per accident for bodily injury and property damage. C. Deductibles and Self~lnsured Retentions. Any deductibles or self- insured retentions in e?(cess of $5,000.00 must be declared to and approved by the City. At the option o{.the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions in excess of $5,000.00 as respects the City, its officers, officials and employees; or the Artist shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses in excess of $5,000.00. D. Other Insurance Provisions. The policies are to contain or be endorsed to contain the following provisions: (1) Workers' Compensation and Employer's Liability coverage (on- site subcontractors only). The insurer shall agree to waive all rights of subrogation against the City, DFA, their officers, officials, employees and volunteers for losses arising from work performed by the Artist for the City. (2) All Coverage - Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Insurance under 1-(A) and (B) shall be evidenced by certificates provided within ten (10) days of the notice to proceed. Insurance under 7 (0) 1 shall be provided ten (10) days prior to shipment of the work. E. Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than A:VII. F. Verification of Coverage. Artist shall furnish City and OFA with certificates of insurance and with original endorsements effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be received and approved by the City and DFA before work commences. The City and DFA reserve the right to require complete, certified copies of all required insurance policies at any time. G. Subcontractors. All coverage for subcontractors working on site shall be subject to all of the requirements stated herein. Artist shall assure that all - 6 - . subcontractors working on site shall furnish separate certificates and endorsements, and name the City and DFA as additional insureds. All coverage for subcontractors shall be subject to all of the requirements stated herein. H. Upon aqceptance and transfer of title to the City, the City shall become responsible for such inrsurance as City may deem necessary. 8. RIGHTS OF THE PARTIES. A. DFA and City shall have the right to inspect the Work at the Artist's studio during the fabrication of the Work at dates and times mutually agreed upon between the parties during regular business hours and at reasonable intervals. 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 DFA 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. C. DFA and City shall use their best efforts to give a credit In any publication, substantially in the following form: "(c) (date of installation)". The Artist shall use his best efforts to give a credit reading substantially "an original work by Twyla Arthur, commissioned by the Dublin Fine Arts Foundation for Stagecoach Park, Dublin, California" in any publication or public showing under her control of any two-dimensional reproductions of the Work. D. City agrees to place at DFA expense a small plaque near the Work which describes the Work and identifies Arthur as the Artist who created the Work. , E. DFA and City agree that they will not intentionally damage, alter, relocate, modify or change the Work in any way, 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, DFA and City will make every effort to arrange with e.. the Artist for the restoration and to request the Artist's supervision of restoration of the Work. . . . - 7 - 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 his sole discretion, as to whether the Work can exist as a work of art by him in the proposed new location. ~ 41 G. Should the City decide to sell the Work, the Artist will have the first right of refusal to repurchase the Work upon the same terms as offered to others. H. If, for any reason, City ever intends to destroy the Work, it shall give written notice to the Artist of its intention and shall give the Artist ninety (90) days to recover the Work, at his sole cost. Within thirty (30) days after receipt of notice, the Artist shall notify City whether or not he intends to recover the Work. 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. I. The Artist shall retain the right to claim authorship of the Work. In the event that any part of the Work is materially damaged or altered in any manner, neither DFA nor City shall continue to represent the Work to be the work of the Artist without the written consent of the Artist. 9. MAINTENANCE. A. The Artist will provide the City with complete information on appropriate care and maintenance of the Work, including"specifications on any surface finishes and expected frequency of application and any other information pertinent to the proper care and maintenance of the Work. The Artist will also provide information on interior structure and all fabrication methods and materials pertinent to the possibility of later repair or restoration to City. B. Following acceptance of the Work by the City, the City will be responsible for the maintenance of the Work, and agrees to take all reasonable precautions to protect against damage or destruction. C. During the lifetime of the Artist and to the extent practicable, City shall notify the Artist promptly in the event of the need for any major maintenance or restoration services, and agrees to give the Artist a reasonable opportunity either to perform such work or to supervise or consult in its performance for reasonable compensation. If the Artist chooses not to do this and refuses to approve repair and restoration by anyone other than himself or his designated representative, City may proceed with the work and the Artist will have the right to have his name removed from the Work. - 8 - . D. Following acceptance of the Work by the City, the Artist agrees to give both written and verbal advice to the City at no charge as to how to deal with any maintenance or restoration problems that may arise with respect to the Work. 10. OWNERSHIP. Title of the Work will remain in the possession of the Artist until the Work has been installed and accepted in writing by DFA and City ("final acceptance") and the Artist has been paid in full. Artist will then transfer his right of ownership (in writing) to DFA who will immediately in turn transfer its title and Artist's right of ownership (in writing) to City which title and right shall be accepted by resolution of the City Council. In the event of termination of this Agreement pursuant to Subparagraph 12 (A) (subject to Artist's compliance with the provisions of said paragraph) or Subparagraph 12 (B), all rights of ownership in the Work will revert to the Artist who will have the sole right to complete, exhibit and sell the Work and any preliminary designs for it. Notwithstanding anything to the contrary herein, the Artist will retain all right of ownership of the preliminary design, all incidental works made in the creation of the Work, and all copies and reproductions thereof. 11. CITY ASSUMPTION OF RIGHTS AND OBLIGATIONS. Upon transfer. by DFA of ownership of title of the Work to City, City shall assume all rights and obligations of DFA 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, DFA 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 of this Agreement, then DFA 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, DFA is more than sixty (60) days late in making any payment. . . . . . - 9 - 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 DFA at: P. O. Box 2912 Dublin, California 94568 To City at: City Manager's Office 100 Civic Plaza Dublin, California 94568 To the Artist at: 7603 Terrace Drive EI Cerrito, California 94530 Copies of all notices sent by the Artist, City or DFA 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. 16. ARBITRATION. All disputes arising out of this Agreement will be submitted to final and binding arbitration. The arbitrator will be selected in accordance with the rules of the Arts Arbitration and Mediation Services, a program of California Lawyers for the Arts. If such service is not available, any disputes will be submitted to arbitration in accordance with the rules of the American Arbitration Association (Association). The parties shall jointly agree on an arbitrator. The costs of arbitration shall be borne equally by the parties to the arbitration. In no event shall any monetary award be made against the City. - 10 - IN WITNESS WHEREOF, the parties hereto have set their hands and seals to this Agreement on the date first written. THE DUBLIN FINE ARTS FOUNDATION '00-. . .i." BY:~ ~~ ATTEST: By: ARTIST By: ! ~~!~rthUP-~ ATTEST: By: ~~dO~ THE CITY OF DUBLIN By: ATTEST: By: , . . .' .