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HomeMy WebLinkAboutReso 176-10 Dublin Transit Ctr ArtworkRESOLUTION NO. 176 -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 Associafes, 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 (Exhibit A) and authorize the City Manager to execute the Agreement. PASSED, APPROVED AND ADOPTED this 21 st day of December 2010, by the following vote: AYES: Councilmembers Biddle, Hart, Hildenbrand, Swalwell, and Mayor Sbranti NOES: None ABSENT: None ABSTAIN: None ~ ~.~.,.. ~~~J`l;~ Mayor ATT T: ~~P ~~ City Clerk Reso No. 176-10, Adopted 12-21-10, Item 4.5 Page 1 of 1 G~ ~~ ,~~. AGREEMENT BETWEEN THE CITY OF DUBLIN AND 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 su6division of the State of California (hereafter "City"), and Cliff Garten and Associates, Inc., (DBA Cliff Garten Studio) (hereafter "Artist") this 21 st 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 provid'ing 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 concrefe 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 F~chibit 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 pertormed 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 aiathorization 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 applicable building code and design Agreement for Artistic Services 3 ~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 fhe Work from loss or damage until said inspection. ~ 3.4- Regaxdless 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 iristalled 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, Ciiy 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 `~~~~~ 19.1. Artist shall indemnify, defend, and hold harmiess City and its officers and employees against liabifity for inju .ry 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 shail hold. City harmless from loss or damages directly resulting to the Citq 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 negligence of the Artist or any subcontractor of Artist. Artist shall indemnify, .~ 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 law whether willful 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 tiiis 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 shal{ hofd the Artist harmless from any loss occasioned by such negligent act or omission. 19.3. Upon finaf 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 services 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 will 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 Il~~~~~ 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. EXECUTIOIV IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the day and year first written above. CITY DF DUBLIN ARTIST Mayor Cliff en d A~sociates Inc. (DBA) Cliff Garten Studio 1315 Preston Way Venice, CA 90291 Attest: ~ ~ate: ~I30 U City Clerk Approved as to form: City Attorney Date: Agreement for Artistic Services 15 t ~'~ ~- ~ ~~~ 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 includes 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 pr.ovide 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 instadlation 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 . ~ December 21, 2010 ~~o~~~ concrete pedestal by a licensed contractor, arid 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: o Contractual payment to Art Consultant, Chandra Cerrito, in the amount of $5,000. • Marketing, promotions and advertizing costs. o A bronze plaque to be placed on or near the artwork. e 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 ~~~~-~~ 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 all 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 extent 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 for the full performance of the artist's obligations under this Agreement Agreement for Artistic Services - EXHIBIT B Page 4 of 7 December 21, 2010 ~~~~~~ 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 p~ovisions: 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 Employers Lia6ility Coverage. The insurer shall agree to waive all rights of subrogation against the City, its officers, officials, employees 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 ~~a~~~~ written notice by certified mail, return receipt requested, has been given to the City. e. Acceptability 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