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HomeMy WebLinkAbout4.05 Transit Ctr Art ProjectG~~.~ OF Dp~l fy . ~ i9;~.~~-;~%2 STAFF REPORT C I T Y C L E R K ~ ~ ~ DUBLIN CITY COUNCIL File # ^~~~-^~~ ~~L1FOR~~~ DATE: . December 21, 2010 _ ~ - ~ -` TO: ~'°° --Honorable Mayor and City Councilmembers • ~- ~ FROM: Joni Pattillo, City Manager SUBJE : Consultant Services Agreement - Dublin Transit Center Public Art Project _- - Prepared By: John Hartnett, Heritage and Cultural Arts Manager EXECUTIVE SUMMARY: Staff is seeking approval of a Consultant Services Agreement with artist Cliff Garten to fabricate and install an artwork sculpture based on the approved design by the artist for the Dublin Transit Center project. FINANCIAL IMPACT: The proposed fee for services under the Agreement is $200,000. A total of $250,000 is available in the City's Public Art Fund from the Alameda County Surplus P~operty Authority (ACSPA) for public art at the Dublin Transit Center and sufficient funds are available in the project budget. RECOMMENDATION: `'~, Staff recommends that the City Council adopt the Resolution Approving an Agreement with Cliff Garten & Associates, Incorporated for Dublin Transit Center Public Art. ~~~~1~ ~ Submitted by: Parks and Community Services Director Reviewed by: Assistant City Manager Page 1 of 2 ITEM NO. ~-~' b~ ~ BACKGROUND: In August 2009, the City Council authorized Staff to enter into an- agreement with artist Cliff Garten to proceed with a conceptual design for artwork at the Dublin Transit Center for a stipend of $10,000. Subsequently, at tlie City Council meeting of September 21, 2010, the City Council approved the proposed concept design developed by the artist and authorized Staff to finalize an agreement with the artist for fabrication and installation of the artwork. DESCRIPTION: The artwork sculpture will be located in the landscaped area adjacent to the pedestrian walkway on the median in front of the Dublin/Pleasanton BART Station entry. The final cost for the artwork including engineering, fabrication and instalfation is estimated to be approximately $200,000. The attached resolution includes the agreement which reflects the scope of services for the artist as well as the schedule for completion of the work. Upon approval of the agreement, Staff anticipates that the artwork will be installed in summer 2011. ~ NOTICING REQUIREMENTS/PUBLIC OUTREACH: A copy of the Staff Report was distributed to artist, Cliff Garten and Project Consultant, Chandra Cerrito. ATTACHMENTS: 1. Resolution Approving Agreement with Cliff Garten & Associates, Incorporated for Dublin Transit Center Public Art, with agreement included as Exhibit A. Page 2 of 2 lo~~~ RESOLUTION NO. -10 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ******~~* APPROVING AN AGREEMENT WITH CLIFF GARTEN AND ASSOCIATES, INCORPORATED FOR DUBLIN TRANSIT CENTER - PUBLIC ARTWORK WHEREAS, the 2010-2015 Capital Improvement Program includes a project to design, fabricate and install public art at the Dublin Transit Center; and WHEREAS, the City Council has approved a concept design for artwork from Cliff Garten and Associates, Incorporated for the Dublin Transit Center; and WHEREAS, the City Council has solicited a proposal from Cliff Garten and Associates, Incorporated to complete the design, fabrication and installation of the artwork; and ~ WHEREAS, Cliff Garten and Associates, Incorporated has demonstrated adequate ability to perform said tasks; and ~ WHEREAS, Cliff Garten and Associates, Incorporated is available to perForm work as specified. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does approve the agreement with Cliff Garten and Associates, Incorporated, attached hereto and authorize the City Manager to execute the Agreement. PASSED, APPROVED AND ADOPTED this 21st day of December 2010. AYES: NOES: ABSENT: Mayor ATTEST: City Clerk I~-ZI-~n `~-~ S - 1 - ATTACHMENT 1 ~ ~~ ~ AGREEMENT BETWEEN THE CITY OF DUBLINAND CLIFF GARTEN RELATING TO THE PROVISION OF ARTISTIC SERVICES FOR A PUBLIC ART PROJECT This Agreement is made by and between the City of Dublin, a political subdivision of the State of California (hereafter "City"), and Cliff Garten and Associates, Inc., (DBA Cliff Garten Studio) (hereafter "Artist") this.21st day of December, 2010. RECITALS WHEREAS, the City requires the services of Artist to perform artistic services described in the Agreement for a public art project; and WHEREAS, the City is authorized by Section 2.36.050 of the Dublin Municipal Code to contract for the specialized services of the artist contemplated by this Agreement; and ~ ~ WHEREAS, Artist is qualified and desires to perform the artistic services required by the City as set forth in this Agreement; and WHEREAS, the City Council, on September 21, 2010, authorized an agreement between City and Artist for the preparation of a final design, fabrication and installation for a public art sculpture entitled "Dubliner" (hereafter "Work"), more specifically described in Article 1 and Exhibit A of this Agreement. NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree as follows: AGREEMENT ARTICLE 1. SCOPE OF WORK 1.1. For services rendered herein, City shall pay Artist a sum not to exceed TWO HUNDRED THOUSAND DOLLARS ($200,000:00) for work performed during the period beginning December 2010 through September 2011. Artist shall furnish services as described in Exhibit A of this Agreement. Terms and conditions for payment are attached in Exhibit B of this Agreement. 1.2. The City shall be responsible for providing the Artist, without cost, copies of designs, drawings, reports, and other relevant data needed by the Artist to design and execute the Project. Agreement for Artistic Services ,~'.EXHIBIT A 30-~ ~~ 1.3. As more specifically described iri Exhibit A of this Agreement, Artist shall provide a final design with construction drawings, material specifications, technical specifications and fabrication methods, fabrication and installation of an approximately 20 foot high stainless steel pedestal & sculpture that will be fabricated and installed in a new concrete area adjacent to the pedestrian walkway on the median in front of the Dublin BART Station. 1.4. The Artist shall begin work after the execution of this Agreement. ARTICLE 2. CHANGES IN SCOPE AND ADDITIONAL WORK 2.1. The Artist shall, whenever required during the term of this Agreement, present to the City in writing, drawing, or other appropriate media for further review and approval any significant changes in the scope, design, color, size, material, utility, and support requirements, texture, or location of the site or the Work. A significant change is any change which could affect the future installation, scheduling, site preparation, or maintenance of the Work, or the concept of the Work as represented in the original concept design. 2.2. The Artist shall be obligated to perform the services called for in Exhibit A. The Artist and the City agree that the Artist shall retain artistic control of his/her services in the performance of the services under this Agreement, subject only to the limitations imposed in Exhibit A. 2.3. Notwithstanding the provisions of Section 2.2 above, the City may, at any time, request the Artist in writing to revise portions of the services that he/she has previously completed in a satisfactory manner; delete portions of the Scope of the Work that the Artist has not yet performed; perform additional work beyond the Scope of Work to be provided in Exhibit A; or make other changes within the General Scope of the Work to be performed under this Agreement. In the event of such a written request, the Artist may, but shall not be obligated to agree to any such request. 2.4. In the event the request for change is agreed to by the Artist, this Agreement shall be amended, in writing, specifying the agreed changes, including, but not limited to, a description of services, additional budget, payment schedule, and timetable. 2.5. In the event that the Artist does not agree to the request, the City shall be entitled to terminate the Agreement for cause pursuant to Article 18 herein. 2.6..No services for which additional compensation will be charged shall be provided by the Artist without the prior written authorization by the city. ARTICLE 3. RESPONSIBILITY OF THE ARTIST Agreement for Artistic Services 2 ~~~ 3.1 The Artist agrees that an essential element of this Agreement is the skill and creativity of the Artist. The Artist shall not assign the creative or artistic portions of the Work to another party for the production of the Work (with the exception of staff of Cliff Garten Studio) without the written consent of the City. Failure to conform to this provision may be cause for termination of this Agreement, at the sole option of the City. 3.2. The Artist shall be responsible for providing services described in - Exhibit A, including but not limited to, the quality and timely completion of the services. As part of the Work, Artist shall be responsible for designing the artwork, as described in Exhibit A, so that it can be constructed without exceeding the approved overall budget for the artwork of $200,000. The Artist shall, without additional compensation, correct or revise any errors, omissions, or other deficiencies in his/her Work. A contingency of $2,000 can, if approved by the Heritage & Cultural Arts Manager, be used by the artist for unexpected costs resulting from higher original estimates previously used for budget purposes, upon provision of evidence of such unexpected costs in a form satisfactory to the Heritage & Cultural Arts Manager. ' 3.3 The following provisions shall apply to the execution, fabrication, transportation, inspection, and/or installation of the Work by the Artist: 3.3,1 The Artist shall, if and when working on City property, supervise such clean-up as may be reasonably requested by the City. At the close out of the Artist's Work, the Artist shall remove his/her equipment, excess materials, etc., promptly and as requested by City. 3.3.2 The City and any third party contractor on the project shall notify the Artist of their operation, construction, and maintenance schedules in and around the area where the Artist's Work is to be performed. The Artist shall perform his/her services in a manner and time so as not to cause interference with any of the operations, construction, or maintenance of the City or third party contractor. In the event of a conflict between the schedules of the contractor and/or the City and the Artist, the conflict will be resolved by the City. If the resolution of the conflict results in a delay of the performance of the Artist, the Artist shall have the right to renegotiate this Agreement to compensate him or her for any additional costs or expenses caused by the delay. If such delay prevents Artist from complying with the schedule in Exhibit A, Artist shall not be considered to have breached this Agreement, and Artist and City shall agree to amend the schedule in writing. 3.3.3 The Artist shall complete the fabrication and installation of the Work in substantial conformity with the attached Exhibit A, Scope of Work. The risk of loss or damage to the Work shall be borne by the Artist until such time as the installation is completed and the City has inspected the installation and determined that it complies with all appticable building code and design Agreement for Artistic Services ~n~~~ requirements. Said inspection shall take place at the time Artist completes the installation work, provided that Artist shall make reasonable efforts to coordinate the timing of the completion of the installation work with the City such that City is able to have its representatives present at that time. Artist shall take such measures as are necessary to protect the Work from loss or damage until said inspection. 3.4 Regardless of any payment City may make to Artist prior to the completion of services under this Contract, title to the Work shall be in the Artist's name, until City shall certify that the Work is completed and installed to the satisfaction of the City. When City has so certified, title to the Work shall transfer to the City. Artist shall bear all risk of loss to the Work during the time the Artist has the title. Provided that Artist makes reasonable efforts to coordinate the timing of completion of the installation, City shall have a representative on site to inspect, accept or reject the work at the time installation is completed. ARTICLE 4. WARRANTIES/STANDARDS 4.1. The Artist warrants that: (a) the design of Work being commissioned is the original product of his/her own creative efforts; (b) unless otherwise stipulated, the work is original, that it is an edition of one (1). 4.2. The Artist shall faithfully perform the work required under this Agreement in accordance with standards of care, skill, training, diligence, and judgment provided by highly competent professionals who perform work of a similar nature to the Work described in this Agreement. Artist shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement; desires the removal of any such persons, Artist shall, immediately upon receiving notice from City of such desire of City, cause the removal of such person or persons, unless in the Artist's sole opinion, the skill or creativity of such person or persons is essential to the creation of the Work. ~ 4.3 The Artist shall guarantee his/her Work to be free from faults of material and workmanship for a period of one (1} year after installation and final acceptance by the City. The Artist shall deliver the Work to the City free and clear of any liens from any source whatever. The foregoing guarantees shall apply only to the Work that is entirely that of the Artist or persons responsible to the Artist, as installed, and shall not apply to materials or workmanship of projects in which the Work of the Artist is integrated or combined, or to materials purchased, acquired, or installed by a person or entity not responsible to the Artist. ARTICLE 5. SUBCONTRACTING Agreement for Artistic Services 4 ~o ~~ `~' 5.1 None of the services covered by this Contract shall be subcontracted without the prior written consent of the City, which will not be unreasonably withheld. Artist shall be as fully responsible to the City for the negligent acts and omissions of its contractors and subcontractors, and of persons either directly or indirectly employed by them, as it is for the negligent acts and omissions of persons directly employed by Artist. 5.2 In the event Artist hires or contracts with employees, subcontractors, or material suppliers, Artist shall make payment to said employees, subcontractors, or material suppliers out of the payment made to Artist by City for completion of the phase of work for which said employees, subcontractors, or material suppliers provided labor or materials, as set forth and described in Exhibit A of this Contract. 5.3. Before payment may be made, pursuant to Section III of this Contract, for completion of a phase of work as therein described, Artist shall demonstrate to the satisfaction of City that all employees, subcontractors, or material suppliers who provided labor or materials for the prior phase of work have been paid. In the case of non - payment of wages and other amounts due employees, subcontractors, or material suppliers hired by or contracted with Artist for the prior phase of work, City may withhold from Artist out of payments due, or to become due, a sum sufficient to pay such persons the difference between the wages or amounts required to be paid pursuant to their agreement with Artist and the wages or amounts actually paid to such persons by Artist. Before performing any work, each subcontractor shall provide to the City and Artist evidence that the subcontractor has workers compensation insurance coverage as required by state law. 5.4 In accordance with California Labor Code Section 1771, not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the Work is to be performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work fixed as provided in the Califomia Labor Code must be paid to all workers engaged in installation of the artwork. ARTICLE 6. COMPENSATION 6.1. The Artist shall be paid for services satisfactorily rendered pursuant to this Agreement in accordance with the terms herein, Exhibits A and B, and subsequent adjustments, changes, or additions as specifically provided for in this Agreement. Such payment shall be full compensation for work performed and services rendered, for all supervision, labor, supplies, materials, equipment, or use thereof, for taxes, and for all other necessary incidentals. 6.2. The amount and schedule of payments to the Artist are contained in the attached Exhibit B, Compensation and Schedule of Payments. Payments Agreement for Artistic Services 5 ~lo~~.~' under this Agreement shall not exceed a maximum amount of $200,000.00, subject onty to adjustments, changes, or additions as specifically provided for in this Agreement (hereafter "Total Price"). 6.3. In the event the Artist incurs costs in excess of the Total Price, the Artist shall pay such excess from his/her own funds, the City shall not be required to pay any part of such excess, and the Artist shall have no claim against the City on account thereof. 6.4. The Artist shall submit invoices to the City according to the schedule provided for in Exhibit B. Such invoices shall be in the form requested by the City. 6.5. In fhe event that the City determines that Work for which it has been invoiced does not meet the contract specifications, and that it intends to withhold payment, the City shall provide detailed written notice to the Artist within fifteen (15} days of receipt of invoice, specifying the faifure of performance for which the City intends to withhold payment. The Artist shall ther.eafter meet contract standards to the satisfaction of the City or advise the City that he/she disputes the City's determination that the specifications have not been met. 6.6. The City shall pay all invoices that meet contract specifications within thirty (30) days of receipt of invoice. 6.7. No payment to the Artist for any work performed or services rendered shall constitute a waiver or release by the City of any claims, rights or remedies it may have against the Artist under this Agreement or by ~aw, nor shall such payment constitute a waiver, remission, or discharge by the City of any failure or fault of the Artist to satisfactorily perform the work as required under this Agreement. 6.8. The services to be required of the Artist under this Agreement shall be completed in accordance with the schedule for completion of the Work, as provided for in Exhibit A, provided that such time limits may be extended or otherwise modified by written agreement between the Artist and the City. 6.9. The City shall always grant a reasonable extension of time to the Artist in the event that there is a delay on the part of the City in performing its obligations under this Agreement or if conditions beyond the Artist's control render timely performance of the Artist's service impossible or unexpectedly burdensome. Failuce to fulfill contractual obligations due to conditions beyond either party's reasonable control will not be considered a breach of this Agreement, as long as such obligations shall be suspended only for the duration of the conditions causing the delay. Agreement for Artistic Services ~ ~ n-~ ~ ~° 6.10 The Artist shall bear any transportation and storage costs resulting from the completion of the Work prior to the time provided in the schedule for installation of the Work. 6.11The City shall always grant a reasonable extension of time to the Artist in the event that there is a delay on the part of the City in performing its obligations under this Agreement or in completing the underlying capital project, or if conditions beyond the Artist's control render timely perFormance of the Artist's service impossible or unexpectedly burdensome. Failure to fulfill contractual obligations due to conditions beyond either party's reasonable controi will not be considered a breach of this Agreement, as long as such obligations shall be suspended only for the duration of the conditions causing the delay. 6.12For delays in the installation of the Work beyond the schedule provided for under this Agreement caused by factors reasonably under the Artist's control, the City agrees to accept fifty dollars ($50.00) per day as liquidated damages for such delay. ARTICLE 7. ARTIST'S RIGHTS 7.1 The City shall, at its expense, prepare and install at an appropriate location, after consultation with the Artist, a plaque or sign identifying the Artist, the title of the Work, and the year of completion. The City shall also reasonably maintain such notice in good repair against damages due to normal wear and tear over time, vandalism, and the elements. ~ 7.2 City intends to make its best efforts to display the work at the project site as originally created by Artist and to maintain the work in good condition. However, City must preserve complete flexibility to operate and manage City properties. Therefore, subject to its obligation to make good-faith efforts to consult with Artist as set forth in subparagraph iii below. City retains the absolute right to alter, repair, modify, remove, refocate, se1f, dispose of, or destroy (collectively, "Modify") the work in its sole judgment. For example, City may modify the work to eliminate hazards, to comply with the ADA, to otherwise aid in the management of its property and affairs, or through neglect or accident. If, during or after the term of this Agreement, City finds the project site to be inappropriate, City has the right to install the work at an alternate location that it chooses in its sole reasonable discretion. 7.3. 1Nith respect to the work produced under this Agreement, except as otherwise set forth herein, Artist waives any and all claims arising at any time and under any circumstances, against City its officers, agents, employees, successors and assigns, arising under the federal Visual Artists Rights Act (17 U.S.C. §§106A and 113(d)), the California Art Preservation Act (Cal. Civil Code §§987 et seq.), and any other local, state, federal or international laws that convey rights of the same nature as those conveyed under 17 U.S.C. §106A, Agreement for Artistic Services . 7 ~~i~'~~ Cal: Civil Code §§987 et seq., or any other type of moral right protecting the integrity of works of art. If the work is incorporated into a building such that the work cannot be removed from the building without physical defacement, mutilation, alteration, distortion, destruction or other modification of the work, Artist waives any and all such claims against any future owners of the Site, and its agents, officers and employees. 7.4 Where time permits, prior to Modifying the work, City shall make reasonable good-faith efforts to notify and consult with Artist, at the last phone number or address provided by Artist to the City, and to come to a mutually agreeable plan for disposition of the work. Such consuVtation shall be without charge by Artist. If the work is Modified and City intends to maintain the work on display, City shall make a reasonable good-faith effort to engage Artist in the restoration of the work and to compensate Artist for Artist's time and efforts at fair market value, which may be the subject of a future Agreement between Artist and City. However, City has no obligation under this Agreement to restore the work or to compensate Artist for any restoration work. If City Modifies the work without Artist's consent in a manner that is prejudicial to Artist's reputation, Artist retains the right to disclaim authorship of the work In accordance with California Civil Code §987(d) and 17 U.S.C. §106A(a)(2). 7.5. Except as provided in this Agreement, with respect to third parties who are not officers, employees, agents, successors or assigns of City, Artist retains Artist's moral rights in the work, as established in the Visual Artists Rights Act (17 U.S.C. §§106A and 113(d)), the California Art Preservation Act (Cal. Civil Code §§987 and 989) or any other local, state, federal or international moral rights laws that protect the integrity of works of art. Accordingly, nothing herein shall prevent Artist from pursuing a claim against a third party who is not an ofFcer, employee, agent, successor or assign of City for Modification of the work. City has no obligation to pursue claims against third parties to remedy or prevent Modification of the work. However, as owner of the work, City may pursue claims against third parties for damages or to restore the work if the work has been Modified without City's authorization. ARTICLE 8. COPYRIGHTS 8.1. The Artist shall retain all copyright and other rights in and to the Work created under this Agreement, other than ownership of the Work itself. Artist shall grant to the City an irrevocable license to graphically depict the artwork in any non-commercial manner whatsoever. 'For the purpose of this limitation, the graphic depiction of the artwork on materials designed to promote the City shall be deemed to be a non-commercial use. Agreement for Artistic Services g l t~~ ~ ~ '°~ 8.2. If for any reason the proposed design is not implemented, all rights to the proposed artwork shall be retained by the Artist. The City shali have no right to implement the proposed artwork, whether or not protected by copyright, unless and until the City and the Artist enter into a subsequent agreement for the implementation of the proposed design. . 8_3. The Artist agrees that all work performed under this Agreement shall comply with all applicable patent, trademark, and copyright laws, rules, regulations, and codes of the United States. The Artist further agrees that the Work will not utilize any protected patent, trademark, or copyright in performance of work under this Agreement, unless the Artist has obtained proper permission and all releases and other necessary documents and provided copies of such . releases and documents to City. If the Artist specifies any material, equipment, process, or procedure that is protected, the Artist shall disclose such patents, trademarks, and copyrights in the construction drawings and technical specifications. ~ 8.4. The Artist agrees to release, indemnify, and hold harmless the City, its officers and employees from any and all claims, damages, suits, costs, expenses, liabilities, actions, or proceeding of any kind resulting from the performance of work under this Agreement that infringes upon any patent, trademark, or copyright protected by law. 8.5. All reproductions by the City shatl contain a credit to the Artist and a copyright notice substantially in the following form: O CIi~F Garten Studio, 2011. The Artist shall use his/her best efforts to include a credit reading substantially "An origina{ work commissioned by the City of Dublin, California" in any public showing under the Artist's control of reproductions of the Work. ARTICLE 9. NO EMPLOYER/EMPLOYEE OR AGENCY RELATIONSHIP 9.1. No relationship of employer and employee is created by this Agreement, it being understood that Artist shall act hereunder as an independent contractor and not as an employee of City. City shall have the right to control Artist's work only insofar as the results of Artist's services rendered pursuant to this Agreement. Artist shall not have any claim under this Agreement or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, retirement benefits, Social Security, disability, Worker's Compensation or unemployment insurance benefits, civil service protection, or .employee benefits of any kind. Artist shall be solely liable for and obligated to pay directly all applicable taxes, including but not limited to Federal and State income taxes. Artist shall indemnify and hold City harmless from any and all liability that City may incur because of Artist's failure to pay such taxes. Notwithstanding the foregoing, if the City determines that pursuant to state and federal law, Artist is an employee for purposes of Federal and State tax withholding, City shall, upon Agreement for Artistic Services 9 I I o ~- ~ ~{° two weeks notice to Artist, withhold from the payments to Artist hereunder federal and state payroll taxes and pay said sums over to the Federal and State governments. Although City shall control only the results of Artist's services under this . Agreement, Artist agrees to perform his/her said work and functions at all times in strict accordance with currently approved methods and practices in his/her .field; in a competent,. efficient, timely, and satisfactory manner; and in accordance with the standards required by the City. 9.2. Nothing contained in this Agreement shall be construed as limiting the ~ right of Artist to engage in his/her profession separate and apart from this Agreement so long as such activities do not interfere with the performance by Artist of his/her obligations as set forth herein and in Exhibit A. 9.3 Except as City may specify in writing, Artist shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Artist shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. ARTICLE 10. CONFORMITY WITH LAW AND SAFETY . °10.1. Artist shall observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies, including all provisions of the Occupational Safety and Health Act of 1979 and all amendments thereto, as well as all laws regarding payment of prevailing wages, including, without limitation, California Labor Code Section 1720, as such laws may be amended or modified, and all applicable federal, state, municipal, and local safety regulations. All services pertormed by Artist must be in accordance with those laws, ordinances, codes, and regulations. Artist shall indemnify .and save City harmless from any and all liability, fines, penalties, and consequences from any noncompliance or violations of such laws, ordinances, codes, and regulations. 10.2. If death, serious personal injury or substantial property damage occurs in connection with the performance of this Agreement, Artist shall immediately notify the City Manager by telephone. Artist shall promptly submit to City a written report, in such form as may be required by City, of all accidents that occur in connection with this Agreement. The report must include the following information: (1) name and address of the injured or deceased person(s); (2)'name and address of Artist's subcontractor, if any; (3) name and address of Artist's liability insurance carrier; and (4) a detailed description of the accident and whether any of City's equipment, tools, material, or staff were involved. ARTICLE 11. CONFLICT OF INTEREST Agreement for Artistic Services 10 iz~~~~ No officer, member, or employee of City and no member of its governing bodies shall have any pecuniary interest, direct or indirect, in this Agreement or the proceeds thereof. Neither Artist nor any member of Artist's family shall serve on a City board or committee or hold any position that, either by rule, practice, or action, nominates, recommends, or supervises Artist's operations or authorizes funding to Artist. ARTICLE 12. ASSIGNMENT OF CONTRACT Nothing contained in this Agreement shall be construed to permit assignment or transfer by Artist of any rights under this Agreement and such assignment or transfer is expressly prohibited and void. , ARTICLE 13. CONFIDENTIALITY OF INFORMATION Confidential information is defined as all information disclosed to Artist that relates to the City's past, present, and future activities, as well as activities under this contract. Artist will hold all such information in trust and confidence except as otherwise required by law. Upon cancellation or expiration of this Agreement, Artist will return to City all written or descriptive matter that contains any such confidential information. ARTICLE 14. NON-DISCRIMINATION Artist assures that he/she will comply with the Americans with Disabilities Act and with Title VII of the Civil Rights Act of 1964, and that no person shall, on the grounds of race, creed, color, disability, gender, sexual orientation, national origin, age, religion, Vietnam era Veteran's status, political affiliation, or any other non-merit factors be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under this Agreement. ARTICLE 15. USE OF CITY PROPERTY Artist shall not use City premises, property (including equipment, instruments, and supplies), or personnel for any purpose other than in the perFormance of his/her obligations under this Agreement. ARTICLE 16. FEDERAL AND STATE AUDITS Until the expiration of five years after the furnishing of any services pursuant to this Agreement, Artist shall make available, upon written request, to the Federal/State government or any of their duly authorized representatives, this Agreement and such books, documents, and records of Artist that are necessary to certify the nature and extent of the reasonable cost of services to City. If Artist enters into any Agreement with any related organization to provide services pursuant to this Agreement with a value cost of $200,000 or more over a twelve- Agreement for Artistic Services 11 i~o~~ ~ month period, such Agreement shall contain a clause to the effect that until the expiration of five years after the furnishing of services pursuant to such subcontract, the related organization shall make available, upon written request, to the Federal/State government or any of their duly authorized representatives, the subcontract, and books, documents and records of such organization that are necessary to verify the nature and effect when and if it is not required by law. ARTICLE 17. MODIFICATION No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto. ARTICLE 18. TERMINATION 18.1. Either party may terminate this Agreement with or without cause by providing thirty (30) days notice, in writing to the other party. Upon the expiration date of said notice, this Agreement shall become of no further force or effect whatsoever and each of the parties shall be relieved and discharged herefrom. 18.2. In the event that the Agreement is terminated by the City without cause; the City shall pay the Artist for all work performed and service rendered up to the effective date of the termination. The City shall have no rights to the Artist's creative work, designs, or unfinished artwork(s). 18.3. In the event that the Agreement is terminated by the Artist without cause, the Artist shall. pro~nptly reimburse the City for all payments made under this Agreement prior to the termination by the Artist. 18.4. In the event that the City determines that the Artist has substantially failed to fulfill his/her obligations as provided under this Agreement, the City shall provide the Artist with written notice detailing the specific obligations which the City claims the Artist has failed to fulfill and notifying the Artist that he/she is deemed to be in breach of the Agreement. If the breach is not cured or if the City and the Artist cannot agree on a schedule for curing the breach, the Agreement will be deemed terminated on a date specified by the City, which will be no sooner than ten (10) days from the date ofi issuance of the notice. In the event of termination pursuant to this Section, City shall have no rights to the Artist's creative work, designs, or unfinished artwork(s). 18.5. If, because of death, unavailability, or any other occurrence, Artist cannot possibly render services or perform work under this Agreement, the Agreement shall be deemed terminated. ARTICLE 19. HOLD HARMLESS/INDEMNIFICATION Agreement for Artistic Services 12 I~~~~~ 19:1. Artist shall indemnify, defend, and hold harmless City and its ofFcers and employees against liability for injury or damage caused by a negligent act or omission of Artist or the negligent act or omission of the Artist's employees, agents, contractors and subcontractors in the performance of this Agreement and shall ho{d City harmless from loss or damages directly resulting to the City or its officers and employees on account of the performance or character of the work, unforeseen difficulties, accidents, occurrences, or other causes predicated on the negfigence of the Artist or any subcontractor of Artist. Artist shall indemnifiy, . defend, and hold harmless the City, its officers, officials, directors, employees and agents from and against any or all loss, liability, expense, claim, costs (including costs of defense), suits, and damages directly arising from the performancz of the work. This p~ragraph shall not be construed to exempt the City, its employees, and officers from its own fraud, willful injury, or violation of 1aw whether willfuf or negligent. For purposes of Section 2782 of the Civil Code the parties hereto recognize and agree that this agreement is not a construction contract. By execution of this Agreement, Artist acknowledges and agrees that it has read and understands the provisions hereof and that this paragraph is a material element of consideration. 19.2. The City shall indemnify the Artist against liability for injury or damage directly or indirectly caused by a negligent act or omission of the City, its officers and employees in their perFormance of this Agreement and shall hold the Artist harmless from any loss occasioned by such negligent act or omission. 19.3. Upon final acceptance of the Work, the City shall, to the extent permitted by law, indemnify, and hold harmless the Artist against any and all claims or liabilities that arise thereafter in connection with the Work perFormed under this Agreement, except claims by the City against Artist and claims that may occur as a result of the Artist's breach of the warranties provided elsewhere in this Agreement. ARTICLE 20. INSURANCE/SELF-INSURANCE Artist shall at all times during the terms of this Agreement with the City \ maintain in force those insurance policies and bonds as designated In the attached Exhibit C and will comply with all those requirements as stated herein. ARTICLE 21. EMPLOYMENT ELIGIBILITY Persons providing serv:ices under this contract will be required to provide the necessary documentation to establish identity and employment eligibility as required by the Immigration Reform and Control Act of 1986. Failure to provide the necessary documentation wi11 result in the termination of contract as required by the Immigration Reform and Control Act of 1986. ARTICLE 22. SEVERABILITY Agreement for Artistic Services 13 I ~~~~ ~' ln the event any of the provisions, or applications thereof, of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions, or applications thereof, shall not be affected. ARTtCLE 23. TIME IS OF THE ESSENCE The parties agree that in the performance of the terms and requirements of this Agreement by the Artist that time is of the essence. Artist shall devote such time to the perFormance of services pursuant to this Agreement as may be reasonably necessary for satisfactory perFormance of Artist's obligations pursuant to this Agreement. ARTICLE 24. LICENSES, PERMITS, ETC. Artist represents and warrants to City that he/she has all licenses, permits, qualifications and approvals of whatsoever nature that are legally required for ~ Artist to practice his/her profession. Artist represents and warrants to City that ~ Artist shall, at his/her sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required for Artist to practice his/her profession. . ARTICLE 25. GOVERNING LAW This Agreement shall be governed by the laws of the State of California and any suit or action by either p~rty shall be brought in the County of Alameda, California. - ARTICLE 26. ATTORNEYS FEES If a party brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party is entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. Such fees may be set by the court in the same action or in a separate action brought for that purpose. ARTICLE 27. NO WAIVER The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. ~ ARTICLE 28. SURVIVAL Agreement for Artistic Services 14 ~1~~~~~ All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Artist survive the termination of this Agreement. ARTICLE 29. EXECUTION IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the day and year first written above. CITY OF DUBLIN Mayor Attest: City Clerk Approved as to form: City Attorney Date: ARTIST Cliff 6aften~a~d A~sociates Inc. (DBA) Cliff Garten Studio 1315 Preston Way Venice, CA 90291 Date: ~1 30 ~ Agreement for Artistic Services 15 I °70 ~ ~~° 1540829.3 ~g~'~~~~ ~'~' 1~~~~~~ ~~~~~ ~~6 ~~,~~~~ EXHIBIT A SCOPE OF SERVICES Summary of Scope of Artist's Services The intent of this Agreement is to define the work to be done in designing, planning, fabricating, transporting and installing artwork for the Dublin Transit Center in the City of Dublin, California. Description of Artwork The concept design for the artwork entitled "Dubliner" by artist Cliff Garten has been approved by the Dublin City Council for final design, fabrication, delivery and installation at the Dublin Transit Center. The sculpture will be located in the landscaped area east and adjacent to the pedestrian walkway on the median in front of the Dublin/Pleasanton BART Station entry. The artwork will be executed based on substantial conformance with the concept design, and delivered and installed in the area as determined and approved within the design concept. The design for the artwork is a stainless steel sculpture which is 20 feet in height, including a 2'-7" pedestal. The piece incfudes 4 LED lighting elements The concept design is attached hereto as Attachment 1. Phases The project will be divided into three phases: 1. Final Design (2 months) Cliff Garten will provide a copy of the preliminary working design to the City for review and coordination. The preliminary working design will incorporate the correct engineering specifications, dimensions and installation procedures necessary to complete the approved artwork pedestal & sculpture. Once the City has reviewed the preliminary working design and agrees that the design has been properly coordinated, the artist will then move forward with the execution of the art pieces. 2. Execution-Fabrication (6 - 9 months) The actual artwork and pedestal are executed from the approved 'preliminary working design. The execution phase is estimated to take six to eight months from the time that the agreement is signed. 3. Installation (on site) Cliff Garten will deliver the pedestal for installation on site, and shall arrange for the construction of a sculpture footing and electrical lighting, as well as installation of the Agreement for Artistic Services - EXHIBIT A Page 1 of 7 December21, 2010 ~a D~-~~ concrete pedestal by a licensed contractor, and at no additional cost to the City. The modification and repair of the landscaped area during the time of installation of the pedestal shall be the artist's responsibility. Installation of the pedestal also includes the lighting control box, lights and all other necessary electrical wiring and connections as shown in the preliminary working design reviewed and approved by the City At a later date to be agreed upon by artist and City Staff, artist will deliver and install the artwork sculpture onto the pedestal. The installation of a work of art requires special handling and the artist reserves the right to use the specialized installer of his choice. The artist is responsible for all safety issues and requirements pertaining to the delivery and installation of the artwork at the Dublin BART Station, including but not limited to: street and pedestrian traffic control, pedestrian right-of-way, securing.the area for installation and any other issues relating to delivery and installation. All work to be installed by the artist will comply with building codes and ADA requirements. Schedule The Final Design shall be submitted within 30 days of the effective date of the Agreement. Fabrication of the artwork and construction and installation of the pedestal shall be completed no later than June 2011. The artwork shall be installed no later than September 2011 City of Dublin Responsibilities From the total project budget, the City of Dublin will be responsible for the following expenses: • Contractual payment to Art Consultant, Chandra Cerrito, in the amount of $5,000. • Marketing, promotions and advertizing costs. • A bronze plaque to be placed on or near the artwork. • Temporary power for the artwork for a one-year period. • Running conduit and wiring from the artwork lighting box to the temporary power source. Running conduit at a future date from the power source location to a future transformer. (The artist is only responsible for providing light fixtures and wiring of fixtures to city's power source during this phase of the project. ) Agreement.for Artistic Services - EXHIBIT A Page 2 of 7, December 21, 2010 a~ n ~-~`~" EXHIBIT B CONDITIONS & TERMS OF PAYMENT 1. The term of this Agreement is from December 21, 2010 through September 2011, at which time the artwork project shall be completed and installed. Notwithstanding the foregoing, this Agreement may be extended by mutual agreement of the parties on a month-by-month basis. 2. Except as provided below, the City agrees to pay Artist a fotal fee not to exceed $200,000, which shall constitute full compensation for all services to be performed and materials furnished by the Artist under this Agreement. The fee shall be paid in the installments upon submission of a written invoice from Artist to City. Said invoices shall be submitted at the times described below for each phase of work. As early as practical, but not later than thirty (30) calendar days following receipt of said invoice, City shall pay Artist the full face value of the invoice. ~ Terms 1. Total Budget is $200,000. 2 The Project includes the following phases: 1) final design, 2) execution of artwork, including all labor and materials, and 3) installation of the project. The amount to be paid for each phase is as follows: Final Design of artwork: The cost of the final design work shall be $10,000, and may be invoiced upon approval of the Final Design work by the City. Execution and Completion of artwork: The cost for the execution and completion of the artwork will be a total of $170,000, billable in two installments. The first installment of $100,000 may be invoiced at any time after the Final Design has been approved by the City. The second payment ofi $35,000 may be invoiced upon 50% completion of fabrication as evidenced by provision of photos documenting the status of the artwork. The third payment of $35,000 may be invoiced upon completion of the artwork to be installed and upon review and approval by the City's Cultural Arts Manager and Project Manager of the completed artwork or of photos documenting completion of the artwork. Installation: The fee payable to artist for the installation portion of the project is $20,000, and may be invoiced upon installation and final acceptance by the City Council of the artwork, provided that Artist has furnished evidence satisfactory to Agreement for Artistic Services - EXHIBIT B Page 3 of 7 December 21, 2010 ~ ~i~~a~ the City that all claims for labor and material have been paid, or the time for filing valid stop notices has passed and no stop notices have been filed, or alf stop notices filed have been released by valid release or release bond acceptable to the City. Contingency A contingency in the amount of $2,000 has been set aside for unexpected costs. In the event that the artist's actual costs exceed the original budget estimates, some or all of this $2,000 may be used by the artist to complete the project. Said payment of the $2,000 shall be contingent upon provision by artist to City of documentation in a form acceptable to City, showing the cause and e~ctent of the variance between the artist's estimates and actual expenses, and upon approval of such payment as necessary by City Staff. In no event shall the City be required to pay any additional amount fior.the full performance of the artist's obligations under this Agreement Agreement for Artistic Services - EXHIBIT B Page 4 of 7 December 21, 2010 . ~~.~~-~~ EXHIBIT C INSURANCE REQUIREMENTS Artist shall procure and maintain for the duration of the contract "occurrence coverage" insurance against claims for injuries to persons or damages to property which may arise from or in connection with the perFormance of the work hereunder by the Artist, its agents, representatives, employees or subcontractors. The cost of such insurance shall be included in the Artist's bid. a. Minimum Scope of Insurance. Coverage shall be at least as broad as: than: 1. Insurance Services Office form number GL 0002 (Ed. 1/73) covering comprehensive General Liability and Insurance Services Office 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. 3. Workers' Compensation Insurance as required by the Labor Code of the State of California and Employers Liability Insurance. b. Minimum Limits of Insurance. Artist shall maintain limits no less 1. General Liability: $1,000,000 combined single limit per occurrence for bodi{y 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. 2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. 3. Workers' Compensation and Employers Liability: Workers' Compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident. Agreement for Artistic Services - EXHIBIT C Page 5 of 7 December 21, 2010 ~3~~=~~ c. Deductibles and Self-Insured Retentions. Any deductibles or self- insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self- insured retentions 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. d. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: General Liability and Automobile Liability Coverages. A. The City, its officers, officials, employees and volunteers are to be covered as insureds as respects: liability arising out of activities perFormed by or on behalf of the Artist; products and completed operations of the Artist, premises owned, occupied or used by the Artist, or automobiles owned, leased, hired or borrowed by the Artist. The coverage shall contain no special limitations on the scope of the protection afforded to the City, its officers, officials, employees or volunteers. B. The Artist's insurance coverage shall be primary insurance as respects the city, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees or volunteers shall be excess of the Artist's insurance and shall not contribute_with it. C. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. D. The Artist's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Workers' Compensation and Empfoyers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its officers, officials, empfoyees and volunteers for losses arising from work performed by the Artist for the City. 3. All Coverages. 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 Agreement for Artistic Services - EXHIBIT C Page 6 of 7 December 21, 2010 ~~p~~~ written notice by certified mail, return receipt requested, has been given to the City. e. Acceptabilitv of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than A:VII. f. Verification of Coveraqe. Artist shall furnish City 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 before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. g. Subcontractors. Artist shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. h. Waiver. The City may approve a variation in those insurance '~ requirements upon a determination that the coverages, scope, limits and forms of such insurance are either not commercially available or that the City's interests are otherwise fully protected. 1540878.1 Agreement for Artistic Services - EXHIBIT C Page 7 of 7 December 21, 2010