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HomeMy WebLinkAboutReso 03-04 AprvAgmtDFAFArtInPk RESOLUTION NO. 3 - 04 A RESOLUTION OF THE CITY coUNciL OF THE CITY OF DUBLIN APPROVING AN AGREEMENT WITH DUBLIN FINE ARTS FOUNDATION AND BRYAN TEDRICK FOR DOLAN PARK ART IN THE PARK PROJECT WHEREAS, in September of 1993 the Dublin City Council gave conceptual approval to the Dublin Fine Arts Foundation's proposed "Art in the Parks" program; and WHEREAS, since that time the Foundation has completed commissions in Alamo Creek, Stagecoach, Mape Memorial, Kolb, Ted Fairfield and Shannon Parks; and WHEREAS, in January of 2003 the Dublin City Council approved a request from the Dublin Fine Arts Foundation to commission art for Dolan Park; and WHEREAS, in December of 2003 the Dublin City Council approved the recommended artwork for Dolan Park by Artist Bryan Tedrick; and WHEREAS, if is necessary to enter into an Agreement with the Dublin Fine Arts Foundation and Bryan Tedrick to identify the services required and the responsibilities of each party. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the Agreement with the Dublin Fine Arts Foundation and Bryan Tedrick, attached hereto. PASSED, APPROVED AND ADOPTED this 6th day of January, 2004. AYES: Councilmembers McCormick, Oravetz and Zika and Mayor Lockhart NOES: None ABSENT: Councilmember Sbranti ATTESt_ ~/// ~//-: -M/~yor y Clerk% K2/G/1-6-04/reso-dolan park art. doc (Item 4.2) G:\CC-MTGSk2004-qtr lklan\01-06-04~reso-dolan park art.doc AGREEMENT THIS AGREEMENT is made and entered into as of the 6th day of January, 2004 by and between THE DUBLIN FINE ARTS FOUNDATION (hereimifter called the "DFA~F"), 'BRYAN TEDRICK (hereinafter called the "Artist") and the CITY OF DUBLIN, a Municipal Corporation (hereinafter called the "City"). WlTNESSETH WHEREAS, DFAF desires to commission and acquire a certain work of art (the"Work") which has been conceived'and designed by the Artist (hereinafter called "Dreams of Longing After Nothing") to be installed in the Dolan Park in Dublin, California; and WHEREAS, DFAF 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 DFAF and City and full payment therefore by DFAF; and WHEREAS, the Artist desires to carry out this commission; NOW, THEREFORE, the parties agree as follows: 1. COMMISSION. DFAF 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 ora wind driven kinetic sculpture designed to rotate 360 degrees and tilt approximately 25 degrees from its center axis. The supporting pole, made of stainless steel, will be approximately 12 feet high allowing over 7 to 8 feet of clearance from the ground to the sculpture. The approximately 14 foot long sculptural "arm", composed of both steel and bronze, is abstract to allow for the viewer's interpretation. A maquette of the Work was submitted by the Artist and approved by the Dublin Fine Arts Committee, on behalf of DFAF, and by the Dublin City Council, on behalf of the City. 2. THE ARTIST'S SERVICES. A. The proposal heretofore submitted by the Artist includes a model of the Work (the "Maquette") and the proposed location of the work (the "Site) as described in No. 1 above. DFAF and the City have approved the Maquette and the Site. The Maquette shall remain the property of the Artist. B. The method of installation of the Work shall comply with all structural integrity and safety requirements of the City's Public Works Department. C. Following the signing of.this Agreement, and at such time as the DFAF's financing is in place, but no later than January 30, 2004, DFAF 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 fabrication and installation of the Work within six months from the date of,receipt of said Notice and payment. The notice to proceed shall be deemed received ten (10) days after mailing by First Class mail. 3. FEES. A. DFAF shall pay to the Artist, as the commission for the Work and the services to be r. endered by the Artist, the sum of $20,000 to be paid in the following installments: -- 1) 50% upon execution of the contract 2) 50% upon completion and final acceptance by the City B. The commission 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 DFAF 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. DFAF and City understand that it may not be possible to creme the Work precisely as depicted in the Maquette; however, if, during the fabrication process,.the Artist makes significant changes in size, imagery, color, type of mosaic, or other approved elements of the Work, the Artist will notify DFAF and City in writing and will receive DFAF'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 giyen by itsCity 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. C. The Artist represents and warrants that the Work, as fabricated and installed, will be fi-ee 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, chipping, pealing, fading, rusting, of otherwise deteriorating, the climatic and environmental 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 DFAF 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 DFAF 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 DFAF 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 DFAF and City, the Artist shall not be responsible for any damage inflicted on the Work by any third parties. Agreement - Art in the Park Page 2 of 8 Dolan Park D. The Artist hereby.represents and warrants to DFAF 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, DFAF and City hereby acknowledge that Artist has used in the past and may use in the future some of the same elements comprising the Work and the Artist reserves the right to use elements and portions of the Work in other works of art in different configurations. E. At DFAF's or City's request and expense, the Artist will execute and deliver to DFAF and City any instruments that DFAF or City may reasonably require to confirm ownership of the Work, or to enable DFAF 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 DFAF or City to certify its authenticity. F. If the installation date is delayed by an event under the control of DFAF or City, and the Artist is fully prepared to begin installation of the Work, then DFAF or City shall pay the cost of storage of the Work and moving the Work to and from the.place of storage. 5. FORCE MAJEURE. Any delay in the performance by the Artist shall be excused if such delay is caused by act of the City or DFAF, their agents, contractors, employees 'or by acts of God, accident, war, war-like operations, civil commotion, riots, labor disputes, sabotage, governmental acts, regulations or controls, fire or other casualty. Failure to' fulfill contract obligations due to conditions beyond either party's reasonable control will not be considered a breach of contract, provided those obligations affected shall be suspended only for the duration of such conditions. During the existence of any such. conditions, both parties shall make reasonable efforts to protect each other's property, equipment and inventory. 6. RISK OF LOSS. The risk 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 DFAF and City against loss or damage until final acceptance of the Work by DFAF and the City, which shall not exceed thirty (30) days after final completion. 7. INSURANCE. The Artist agrees to procure at Artist's expense and to maintain through fabrication, transportation, installation, and transfer of ownership title of the Work, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work by the Artist or their agents, employees, representatives or subcontractors. A. Minimum Scope of Insurance. Coverage shall be at least as broad as: (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) covenng Automobile Liability, code 1 "any auto" and endorsement CA 0025. Agreement - Art in the Park Page 3 of 8 Dolan Park B. Minimum Limits of Insurance. Artist shall maintain limits no less than: (1) General Liability: $1,000,000 combined single limit per occurrence for bodily '-' inj-firy, l~ersonal injury and property damage. If comme~,cial 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: $300,000 combined single limit per accident for bodily injury and property damage. C. Deductibles and Self-Insured Retentions. Any dedUctibles or self-insured retentions in excess of $5,000.00 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 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: (t) 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 7(A) and (B) shall be evidenced by certificates provided within ten (10) days of the notice to proceed. Insurance under 7 (D) 1 shall be provided ten (1 0) 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. The Artist shall furnish City and DFAF 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 DFAF before work commences. The City and DFAF 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 subcontractors working on site shall furnish separate certificates and endorsements, and name the City 'and DFAF as additional insureds. All coverage for subcontractors shall be subject to all of the requirements stated herein. H. Upon acceptance and transfer of title to the City, the City shall become responsible for such insurance as City may deem necessary. Agreement- Art in the Park Page 4 of 8 Dolan Park 8. RIGHTS OF THE PARTIES. A. DFAF .and City shall have the right to inspect the Work at the Artist's studio(s) 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 DFAF and City and their assigns an irrevocable fight 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 fight Of approval,' such approval shall be deemed to have been given if the City receives no response after 21 days' written notice. Whenever the City, the DFAF and/or their assigns makes a two-dimensional reproduction of the Work, for any of the aforementioned approved purposes, the party making the reproduction shall provide the Artist with notice of its intent to make the reproduction and with copies of the reproduced images of the Work. C. DFAF and City shall use their best efforts to give a credit in any publication, substantially in the following form: "an original work by Bryan Tedrick, commissioned by Dublin Fine Arts Foundation Dolan Park, Dublin, California".' The Artist shall use her best efforts to give a credit reading substantially" an original work by Bryan Tedrick, commissioned by Dublin Fine Arts Foundation for the Dolan Park, Dublin, California" in any publication or public showing under his control of any two- dimensional reproductions of the Work. D. City agrees to place at DFAF expense a small plaque near the Work which describes the Work and identifies Bryan Tedrick as the artist who created the Work. E. DFAF 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, DFAF and City will make every effort to arrange with the Artist for the restoration and to request the Artist's supervision of restoration of the Work. F. The parties acknowledge that the Work is a site-specific work and in no event may the Work be eXhibited or lent to others to exhibit separate from the Site without the prior written consent of the Artist, which consent shall be based upon the opinion of the Artist, in her sole discretion, as to whether the Work can exist as a work of art by them in the proposed new location. G. Should the City decide to sell the Work, the Artist will haue the first right of refusal to purchase the Work upon the same terms as offered to others. Agreement - Art in the Park Page 5 of 8 Dolan Park H. If, for any reason, the City ever intends to destroy the Work, it shall give written notice to the Artist of its intention and shall give the Artist, collectively or individually, ninety (90) days to recover the Work, at the sole cost of the Artist. Within thirty (30) days after receipt of notice, the Artist shall notify C~'~ wl~ether or not sh~int~nds to recover the Work If no notice is received from the Artist within said thirty (30) day period, she shall be deemed to have waived her 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. ownership and the costs of recovery between themselves. I. The Artist shall retain the fight to claim authorship of the Work. In the event that any part of the Work is materially damaged or altered in any manner, neither DFAFnor Cky shall Continue to represent the Work to be the work the Artist without written consent. 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 by 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 ro supervise or consult in its performance for reasonable compensation. If the Artist chooses not to not to do this and refuses to approve repair and restoration by anyone other than themselves or their designated representative, City may proceed with the work and the Artist will have the right to have their names removed from the Work. If the Artist chooses not to perform or to approve repair and restoration by anyone other than herself or her designated representative, City nevertheless proceed, and the Artist will have the right to have her name removed from the Work. 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 DFAF and City ("final acceptance") and the Artist has been paid in full. Artist will then transfer their right of ownership (in writing) to DFAF who will immediately in turn transfer its title and Artist's right of ownership (in writing) to City, which title and fight 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. Agreement - Art in the Park Page 6 of 8 Dolan Park 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 DFAF of ownership of title of the Work to City, City shall assume all fights and' obligations of DFAF 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, DFAF 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 DFAF 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 fight to terminate this Agreement if, pursuant to Paragraph 3, DFAF is more than sixty (60) days late in making any payment. C. If the Artist is unable to complete the Work or to commence the installation on the installation date because of illness or disability or because of events beyond the control of the Artist, as provided herein, the time to complete the Work and its installation shall be extended by the len~h 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 DFAF at: P. 0. Box 2912 Dublin, California 94568 To City at: 100 Civic Plaza Dublin, California 94568 To the Artist at: P.O, Box 793 Glen Ellen, CA 95442 Agreement - Art in the Park Page 7 of 8 Dolan Park Copies of all notices sent by the Artist, city or DFAF shall also be sent to Lyrme Baer, 1020 Union St., No. 2, San Francisco, California 94133. Any of ~ie alcove 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 o£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, IN WITNESS WHEREOF, the parties heretohave set their hands and seals to this Agreement on the date first written. THE DUBLIN FINE ARTS FOUNDATION THE ~TY OF DLIB?/?~ ATTEST: AT2-~/ By:ARTIST BY:~ By: ATTEST: By: Agreement - Art in the Park Page 8 of 8 Dolan Park