HomeMy WebLinkAbout4.09 Fallon Park Public Art Agreementor
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DATE:
TO:
STAFF REPORT
CITY COUNCIL
January 19, 2016
Honorable Mayor and City Councilmembers
CITY CLERK
File #600 -30
FROM: Christopher L. Foss, City Manager "
SUBJECT: Fallon Park Public Art Agreement
Prepared by Tegan McLane, Cultural Arts and Heritage Manager
EXECUTIVE SUMMARY:
The City Council will consider approval of a Public Art Agreement between the City of Dublin
and Heath Satow to design, fabricate and install an artwork at Fallon Sports Park. The
dimensions of the sculpture have been slightly increased from 28 feet tall to 31 feet tall, on a
base that has been increased from 12 feet wide by 12 feet deep, to 13 feet wide by 13 feet
deep, to improve visibility of the artwork.
FINANCIAL IMPACT:
The Public Art Agreement between the City of Dublin and Heath Satow is valued at $246,000.
The total project budget, which is funded by the Public Art Fund, is $250,000.
RECOMMENDATION:
Staff recommends City Council adopt a Resolution Approving a Public Art Agreement with
Heath Satow for the Fallon Sports Park Public Art Project.
`Reviewed By
Assistant City Manager
DESCRIPTION:
On January 20, 2015, the City Council unanimously approved the proposed artwork by artist
Heath Satow and authorized Staff to negotiate an Agreement for the design, fabrication and
installation of the public artwork at Fallon Sports Park. Because the park development process
was temporarily halted due to the rejection of the bids last spring, negotiation of the public art
agreement was also delayed.
With the City Council's December 15, 2015, authorization to re -bid the contract for Fallon Sports
Park, and the expectation that construction of the park will begin this spring, Staff is requesting
the City Council approve the Public Art Agreement between the City of Dublin and Heath Satow.
Page 1 of 2 ITEM NO. 4.9
The artwork is a mirror - polished stainless steel sculpture, abstract in form, but reminiscent of the
figurehead on a ship or an athlete in full -body extension, such as a soccer goalie intercepting a
ball, a tennis player at the height of the serve, a baseball outfielder leaping to make an
impossible catch, or basketball player dunking the ball.
The sculpture will sit atop a classic pedestal, similar to the Statue of Liberty's pedestal, with
bronze plaques on each side, bearing inspirational quotes to be chosen by the community, likely
in late spring. In the coming weeks, Staff will be evaluating possible processes by which the
quotes will be chosen.
The total height of the piece has been increased slightly, from 28 feet to 31 feet, and the
corresponding footprint has increased to 13 feet, 10 inches square, with the addition of a simple,
stepped concrete base beneath the classical pedestal. This added height will give the artwork
more prominent visibility.
The attached Resolution includes the Agreement (Exhibit A), which reflects the scope of
services and schedule for completion. Instead of the fixed calendar deadlines that Dublin
customarily uses in its public art agreements, Staff has negotiated deadlines relative to the
construction contract and schedule for the park. Staff expects the artwork will be installed three
weeks prior to the park completion date that will ultimately be identified in the construction
schedule, as part of the award of the construction contract.
ATTACHMENTS: 1. Resolution Approving a Public Art Agreement with Heath Satow for
the Fallon Sports Park Public Art Project with Exhibit A: Public Art
Agreement Between the City of Dublin and Heath Satow
Page 2 of 2
RESOLUTION NO. XX - 16
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* * * * * * * * * **
APPROVING A PUBLIC ART AGREEMENT WITH HEATH SATOW
FOR THE FALLON SPORTS PARK
PUBLIC ART PROJECT
WHEREAS, the 2014 -2019 Capital Improvement Program includes a project to design,
fabricate and install public art at Fallon Sports Park; and
WHEREAS, the six public artists pre - qualified to design public art for 2014 -2019 Capital
Improvement Projects, including Fallon Sports Park, were invited to submit design proposals for
Fallon Sports Park; and
WHEREAS, on January 20, 2015, the City Council selected the proposal by Heath Satow
to design, fabricate and install artwork at Fallon Sports Park; and
WHEREAS, Heath Satow has demonstrated ability to perform said services; and
WHEREAS, Heath Satow is available to perform the work specified.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin
approves the Public Art Agreement between the City of Dublin and Heath Satow, attached as
Exhibit A, and authorizes the City Manager to execute the Agreement.
PASSED, APPROVED AND ADOPTED this 19th day of January, 2016, by the
following vote-
AYES-
NOES-
ABSENT-
ABSTAIN-
ATTEST-
City Clerk
Mayor
ATTACHMENT 1
PUBLIC ART AGREEMENT BETWEEN
THE CITY OF DUBLIN AND HEATH SATOW
THIS AGREEMENT is made by and between the City of Dublin ("City") and Heath Satow
Sculpture, Inc. ( "Artist ") as of January , 2016, for the purposes and on the terms and conditions set
forth below,
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 January 20, 2015, authorized the City Manager to negotiate an
agreement between City and Artist for the preparation of a final design, fabrication and installation for a
public art sculpture at Fallon Sports Park.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto
agree as follows:
AGREEMENT
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Artist shall
provide to City the services necessary to provide the artwork (V11ork ") described in the Artist Proposal
described in Exhibit A, and in the Scope of Work attached as Exhibit B at the time and place, and in the
manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement
and Exhibit B, the Agreement shall prevail,
1.1 Term of Services. The term of this Agreement shall begin on the date first noted above
and shall end on the date of completion specified in Exhibit B, and Artist shall complete the
Work described in Exhibit A prior to that date, unless the term of the Agreement is
otherwise terminated or extended, as provided for in Section 17. The time provided to
Artist to complete the services required by this Agreement shall not affect the City's right to
terminate the Agreement, as provided for in Section 17.
1.2 Standard of Performance. Artist shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent
practitioner of the profession in which Artist is engaged in the geographical area in which
Artist practices its profession. Artist shall prepare all work products required by this
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Agreement in a substantial, first -class manner and shall conform to the standards of quality
normally observed by a person practicing in Artist's profession.
1.3 Assignment of Personnel. 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 reassignment of any such persons,
Artist shall, immediately upon receiving notice from City of such desire of City, reassign
such person or persons.
1.4 Time. Artist shall devote such time to the performance of services pursuant to this
Agreement as may be reasonably necessary to meet the standard of performance
provided in Section 1,1 above and to satisfy Artist's obligations hereunder.
Section 2. SCOPE OF WORK: Artist shall provide a final design, fabrication and installation of a
sculpture for the Fallon Sports Park public art project as more specifically described in Exhibits A and B of
this Agreement,
11 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.
2.2 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, support requirements, texture, or
location of the site or the Work. A significant change is any change that could affect the
future installation, scheduling, site preparation, or maintenance of the Worst, or the concept
of the Work as represented in the original concept design included in Exhibit A,
2.3 The City may, at any time, request the Artist in writing to (a) revise portions of the services
that he/she has previously completed in a satisfactory manner; (b) delete portions of the
Scope of the Work that the Artist has not yet performed; (c) perform additional work beyond
the Scope of Work to be provided in Exhibit B; and, (d) 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, 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 17 herein,
2.5 No services for which additional compensation will be charged shall be provided by the Artist
without the prior written authorization by the City.
Section 3. COMPENSATION. City hereby agrees to pay Artist a sum not to exceed $246,000 as
specified in Exhibit C, notwithstanding any contrary indications that may be contained in Artist's proposal,
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for services to be performed under this Agreement; or subject to additional amounts for any revisions
requested and change order approved by the City as provided for in Section 2.3 above or elsewhere in this
Agreement. In the event of a conflict between this Agreement and Artist's proposal, attached as Exhibit A,
regarding the amount of compensation, the Agreement shall prevail. City shall pay Artist for services
rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments
specified in Exhibit C shall be the only payments from City to Artist for services rendered pursuant to this
Agreement. Artist shall submit all invoices to City in the manner specified herein. Except as specifically
authorized by City, Artist shall not bill City for duplicate services performed by more than one person.
Artist and City acknowledge and agree that compensation paid by City to Artist under this Agreement is
based upon Artist's estimated costs of providing the services required hereunder, including salaries and
benefits of employees and subcontractors of Artist. Consequently, the parties further agree that
compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities
to which Artist and its employees, agents, and subcontractors may be eligible, City therefore has no
responsibility for such contributions beyond compensation required under this Agreement.
3.1 Invoices. Artist shall submit invoices as specified in Exhibit B and C, not more often than
once a month during the term of this Agreement, based on the cost for services performed
and reimbursable costs incurred prior to the invoice date. Invoices shall contain the
following information:
Serial identifications of each billable phase; i.e., Bill No. 1 Phase I for the first
invoice, etc.;
The beginning and ending dates of the billing period;
A Task Summary containing the original contract amount, the amount of prior
billings, the total due this period, the balance available under the Agreement, the
Artist's signature.
3.2 Total Payment. City shall pay for the services to be rendered by Artist pursuant to this
Agreement. City shall not pay any additional sum for any expense or cost whatsoever
incurred by Artist in rendering services pursuant to this Agreement. City shall make no
payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Artist submit any invoice for an amount in excess of the maximum
amount of compensation provided above either for a task or for the entire Agreement,
unless the Agreement is modified prior to the submission of such an invoice by a properly
executed change order or amendment.
3.3 Payment of Taxes. Artist is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
3.4 Payment upon Termination. In the event that the City or Artist terminates this Agreement
pursuant to Section 17, the City shall compensate the Artist for all outstanding costs and
reimbursable expenses incurred for work satisfactorily completed as of the date of written
notice of termination, Artist shall maintain adequate logs and timesheets in order to verify
costs incurred to that date.
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3.5 Authorization to Perform Services. The Artist is not authorized to perform any services
or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator,
Section 4. FACILITIES AND EQUIPMENT. Except as set forth herein, Artist shall, at its sole cost
and expense, provide all facilities and equipment that may be necessary to perform the services required
by this Agreement. City shall make available to Artist only the facilities and equipment listed in Exhibit B,
and only under the terms and conditions set forth herein.
Section 5. RESPONSIBILITY OF THE ARTIST
5.1 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 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.
5.2 The Artist shall be responsible for providing services described in Exhibit B, 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 $246,000.
The Artist shall, without additional compensation, correct or revise any errors, omissions,
or other deficiencies in his/her Work.
5.3 The Artist shall complete the fabrication and installation of the Work in substantial
conformity with the attached Exhibit B, Scope of Work.
5.4 The risk of loss or damage to the Work shall be borne by the Artist until final acceptance
by City. The Artist shall take such measures as are necessary to protect the Work from
loss or damage until final acceptance by City.
Section 6. TIMELY PROVISION OF SERVICES, DAMAGES FOR DELAYED PERFORMANCE: 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.
6.1 Damages for Delayed Performance. Subject to reasonable proof and documentation
confirming the same submitted by the City, Artist shall be liable for all incidental and
consequential damages resulting, directly or indirectly, from delays in performance caused
by Artist's acts or omissions, Damages may include, but are not limited to the cost to
retrofit the Work installation area should Artist not meet installation schedule as specified
in Exhibit B. The Artist shall not be liable to City for damages resulting from delays caused
by force majeure or by acts or omissions of City, Architect or the General Contractor; or
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third party vandalism, except to the extent Artist failed reasonably to mitigate such
damages.
6.2 Illness, Injury, Death or Incapacity. Should Artist die, become ill, injured or otherwise
incapacitated (collectively, "Incapacitated ") such that Artist is unable to work for any period
not exceeding 30 days (whether consecutive or non - consecutive), any delay arising out of
such Incapacity will be allowed by City whenever it is practicable to do so, considering the
facts and circumstances of the Work, the Project, the Architect, the General Contractor
and the Client. City may require Artist to provide medical certification of any claimed
incapacity. In the event Artist is incapacitated such that Artist is unable to work for a period
exceeding a total of 30 days (whether consecutive or nonconsecutive), City may, at its
option, undertake to complete and Install the Work in Artist's absence, so long as the final
Artwork is substantially similar to that designed by Artist. If City undertakes to complete the
Work, City shall give due consideration to Artist's suggestions, and Artist may disclaim
authorship of the Work. If City exercises its option to Implement the Artwork in Artist's
absence, any compensation paid or payable to Artist shall be reduced by the costs and
expenditures of City in completion and installation of the Work. In case of incapacity
exceeding 30 days, the following person shall be Artist's representative vis -a -vis the City
for purposes of this Section 6 {Timely Provision of Services; damages for Delayed
Performance unless otherwise directed in writing by the Artist:
Angel Castillo
(805) 405 -4150
3205 Folsom Street
Los Angeles, CA 90063
ac @pu blicscu Iptu re.com
Section 7, APPROVAL AND FINAL ACCEPTANCE OF ARTWORK. Payment does not imply
acceptance of work. The granting of any payment by City, or the receipt thereof by Artist, shall in no way
lessen the liability of Artist to replace unsatisfactory work, equipment, or materials, although the
unsatisfactory character of such work, equipment or materials may not have been apparent or detected at
the time such payment was made. Materials, equipment, components, or workmanship that does not
conform to the requirements of this Agreement may be rejected by City and in such case must be replaced
by Artist without as soon as possible.
7.1 The granting or withholding of any approval by the City shall be determined by the City in
Its sole and reasonable discretion. However, the City shall approve all deliverables if they
materially conform to plans or Contract Documents previously approved by the City. If the
City withholds approval of any deliverables or Phase, in addition to other rights or
remedies available to the City under the Agreement or applicable law, the City shall have
the right to terminate this Agreement immediately and shall have no further obligations
under this Agreement.
7.2 Final Acceptance. Artist shall advise the City in writing when Artist has completed all
obligations, services and deliverables under this Agreement and all modifications. The City
promptly shall send a Notice of Response identifying in writing any obligations, services or
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deliverables that Artist has not satisfactorily met, any defects in Artist's performance, and
the requirements for Artist to cure any such default. Artist shall have 20 days from dispatch
of the Notice of Response to cure any defects in Artist's performance identified in the City's
Notice of Response. The Artwork shall not be officially accepted by City unless the City
has issued a resolution of Final Acceptance. City shall make a good faith effort to make a
determination as to Final Acceptance promptly.
7.3 Public Art Collection. Upon Final Acceptance, the City shall accession the Artwork into
the Public Art Collection.
Section B. WARRANTIES /STANDARDS
8.1 Unique. Artist warrants that the design of the Artwork as expressed in the Proposal,
Exhibit A, is an edition of one, and that neither Artist nor Artist's agents will execute or
authorize another to execute another work of the same or substantially similar image,
design, dimensions and materials as the Artwork. Artist may create works that utilize or
incorporate various individual art elements that comprise the Artwork, so long as the work
utilizing or incorporating such individual elements (1) does not consist predominantly of
such elements, (2) is not the same or substantially similar in image, design, dimensions
and materials as the Artwork, and (3) is not displayed in an environment that is the same
or substantially similar to the environment in which the Artwork is to be displayed at the
site.
8.2 Warranty of Title. Artist represents and warrants that Artist is the sole author of the
Artwork and that Artist is the sole owner of any and all copyrights pertaining to the Artwork.
Artist further represents that the Artwork is free and clear of any liens and that there are no
outstanding disputes in connection with property rights, intellectual property rights or any
other rights in the Artwork or any parts of the Artwork.
83 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.
8.4 Warranty of Workmanship. 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 whatsoever. 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
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integrated or combined, or to materials purchased, acquired, or installed by a person or
entity not responsible to the Artist.
8.5 Warranty of Public Safety. Artist represents and warrants that the Work will not pose a
danger to public health or safety in view of the possibility of misuse, if such misuse is in a
manner that was reasonably foreseeable at any time during the term of this Agreement,
8.6 Warranty of Acceptable Standard of Display and Operation. Artist represents and
warrants that:
8.6.9 Occasional or minimal cleaning and repair of the Artwork and any associated
working parts and/or equipment will maintain the Work within an acceptable
standard of public display;
8.6.2 Foreseeable exposure to the elements and general wear and tear will cause the
Work to experience only minor repairable damages and will not cause the Work to
fall below an acceptable standard of public display; and
8.6.3 With general routine cleaning and repair, and within the context of foreseeable
exposure to the elements and general wear and tear, the Work will not experience
irreparable conditions that do not fall within an acceptable standard of public
display, including maid, rust, fracturing, staining, chipping, tearing, abrading and
peeling.
8.7 Manufacturer's Warranties. To the extent the Work incorporates products covered by a
manufacturer's warranty, Artist shall provide copies of such warranties to City.
Section 9. MAINTENANCE OF ARTWORK
9.1 Unless specifically provided in this Agreement, Artist shall not be responsible for ongoing
maintenance of the Artwork.
9.2 Artist shall provide the City with a General Maintenance Plan for the Artwork, with a
detailed description of future anticipated maintenance requirements; a recommended
maintenance schedule; anticipated and required care and /or replacement/upgrade of any
part of the Artwork and associated moving parts or equipment including any staff time
involved in displaying or operating artwork and the frequency of such staff involvement;
and written instructions and manufacturer's specifications for reasonably foreseeable
maintenance and preservation activities relating to the Artwork.
9.3 The Artwork shall be durable, taking into consideration that the installation site is an
unsecured public space that may be exposed to elements such as weather, temperature
variation, and considerable movement of people and equipment. Artist shall ensure that all
maintenance requirements will be reasonable in terms of time and expense.
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9.4 Although City strives to maintain the Public Art Collection in good repair and condition, City
is not required by this Agreement to maintain the Artwork to any particular standard City
may determine to allow the Artwork to deteriorate in accordance with the Artwork's
temporary life span, if deemed appropriate by City or if City lacks sufficient funds for
required maintenance and/or conservation. If the Artwork suffers deterioration, City shall
have sole discretion to determine whether to remove the Artwork from display as a result
of deterioration, whether to replace any portion of the Artwork or translate any component
into new media, or whether to maintain the Artwork on display despite its deteriorated
condition.
9.5 The anticipated life span of the Artwork is 25 years from the date of final acceptance by the
City. After that time, the City in its sole discretion may re- evaluate the Artwork to determine
If it retains its identity as a work of art and, if not, whether to take appropriate action,
including the possibility of destroying the Artwork. If the City determines that, through
decay, vandalism or other forces, the Artwork has lost its integrity to the point where it
should be destroyed, the City shall first offer the Artwork to Artist free of charge and in
writing.
Section 10. ARTIST'S RIGHTS; CITY'S OWNERSHIP RIGHTS
10.1 The City intends to display the Artwork as originally created by Artist in Exhibit A and to
maintain the Artwork in good condition. Public artworks commissioned by the City are
sometimes integrated into their site, such that they become an integral, permanent and
site- specific part of the building's architecture or landscaped environment and removal of
the artwork would result in significant changes to the artwork and the building's
architecture. City, however, shall preserve complete flexibility to operate and manage City
property in the public's interest. Therefore, City retains the absolute right to alter the
Artwork in City's sole judgment. For example, City may alter the Artwork to eliminate
hazard, to comply with the ADA, to otherwise aid City 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 Site to be inappropriate, City has the right to install the Artwork at an
alternate location that City chooses in its sole discretion. If the Artwork is free - standing
such that it can be removed without significant damage to the Artwork or the Site, and if
the City authorizes the removal of the Artwork, the City shall take reasonable precautions
to minimize alteration of the Artwork during removal.
10.2 With respect to the Artwork produced under this Agreement, and in consideration of the
procedures and remedies specified in this Agreement, 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
(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, Cal. Civil Code § §987 et seq., or any other type
of moral right protecting the integrity of works of art. If the Artwork is incorporated into a
building such that the Artwork cannot be removed from the building without alteration of
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the Artwork, Artist waives any and all such claims against any future owners of the site,
and its agents, officers and employees, for alteration of the Artwork.
10.3 If City intends to take any action with respect to the site or the Artwork that would alter the
Artwork, other than routine cleaning and maintenance, the following procedures shall
apply:
10.3.1 Notice. Where time permits, City shall make reasonable good faith efforts to notify
Artist at least 20 calendar days prior to authorizing any alteration of the Artwork, at
the last phone number or address provided by Artist to the City's Contract
Administrator. Where time does not permit prior to alteration of the Artwork — for
example, in cases of public hazard, accident or unauthorized alteration -- City shall
notify Artist within 30 calendar days after such alteration.
10.3.2 Consultation. After receiving such notice, Artist shall consult with City to
determine whether the Artwork can be restored or relocated, and to attempt to
come to a mutually agreeable plan for disposition of the Artwork. Such
consultation shall be without charge by Artist unless otherwise specifically agreed
in writing. If City intends to remove the Artwork, Artist shall consult regarding
methods to minimize or repair any Alteration to the Artwork caused by such
removal and the potential costs of such removal.
10.3.3 Restoration. If the Artwork is altered, with or without prior notice to Artist, and City
intends to maintain the Artwork on display, City shall make a reasonable good faith
effort to engage Artist in the restoration of the Artwork 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 Artwork to its original condition, to compensate Artist for
any restoration work, or to maintain the Artwork on display. If Artist fails or refuses
to negotiate with City in good faith with respect to any restoration, City may
contract with any other qualified art conservator or artist for such restoration.
During Artist's lifetime, City shall make best efforts not to display or de- accession
only a portion of the Artwork without Artist's consent.
10.3.4 Removal by Artist. Where time permits, if City intends to take action that will
destroy or significantly alter the Artwork, such as destruction of all or part of the
site, and City determines that it will not remove the Artwork itself, City shall allow
Artist to remove the Artwork at Artist's expense within 60 days of notice from the
City of the need to remove the Artwork, in which case title shall revert to Artist. If
Artist fails to remove the Artwork within that 60 day period, City may alter the
Artwork in any manner, including destroying it, in City's sole discretion.
10.3.5 Remedies. If City breaches any of its obligations under this Section, Artist's
remedies shall be limited as follows: If City inadvertently fails to provide a required
prior notice of alteration, City will provide notice as soon as it discovers the
omission, and before alteration of the Artwork if that remains possible. If City alters
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the Artwork without providing Artist a required prior notice of alteration, Artist shall
be given the first right of refusal to restore the Artwork at the same location and
City shall make reasonable efforts to provide funding for the restoration. If City
funds cannot be made available after reasonable efforts are made to secure such
funding, Artist may, but is not obligated to, restore the Artwork at Artist's expense.
If Artist elects not to restore the Artwork, City may retain another artist or
conservator to restore it, or may Alter the Artwork in any manner, at City's sole
discretion.
10.4 If City alters the Artwork without Artist's consent in a manner that is prejudicial to Artist's
reputation, Artist retains the right to disclaim authorship of the Artwork in accordance with
California Civil Code §987(4) and 17 U.S.C. §106A(a)(2).
10.5 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
Artwork, 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 for alteration of the
Artwork against a third party who is not an officer, employee, agent, successor or assign of
City. City has no obligation to pursue claims against third parties to remedy or prevent
alteration of the Artwork. However, as owner of the Artwork, City may pursue claims
against third parties for damages or to restore the Artwork if the Artwork has been altered
without City's authorization.
Section 11. INTELLECTUAL PROPERTY AND PUBLICITY RIGHTS
11.1 Copyright. Subject to usage rights and licenses granted to City hereunder, Artist shall
retain all 17 U.S.C. §106 copyrights in all original works of authorship produced under this
Agreement. Artist's copyright shall not extend to predominantly utilitarian aspects of the
Work, such as landscaping elements, furnishings, or other similar objects. if Artist is
comprised of two or more individual persons, the individual persons shall be deemed joint
authors of the Work.
11.2 City's Intellectual Property License. Artist grants to City, and to City's agents, authorized
contractors and assigns, an unlimited, non - exclusive and irrevocable license to do the
following with respect to the Work, the Artwork, and any original works of authorship
created under this Agreement, whether in whole or in part, in all media (including electronic
and digital) throughout the universe:
11.2.1 Implementation, Use and Display. City may use and display the Work (to the
extent the Work includes graphic representations or models) and the Artwork. To
the extent the Work involves design elements that are incorporated by City into the
design of the site, City may implement such elements at the site,
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11.2.2 Reproduction and Distribution. City may make and distribute, and authorize the
making, display and distribution of, photographs and other 2- dimensional
reproductions. City may use such reproductions for any City- related purpose,
including advertising, educational and promotional materials, brochures, books,
flyers, postcards, print, broadcast, film, electronic and multimedia publicity, gifts for
City benefactors, documentation of City's Public Art Collection, and catalogues or
similar publications. City shall ensure that such reproductions are made in a
professional and tasteful manner, in the sole and reasonable judgment of the City.
The proceeds from the sale of any such reproductions shall be used to maintain
and support City's Public Art Collection or for any other public purposes that City
deems appropriate. The license granted hereunder includes the right to create 2-
dimensional reproductions on items such as tote -bags, T- shirts, coffee mugs and
similar merchandise. Nothing hereunder shall be construed to constrain Artist from
creating posters, note cards, or other reproductions of the Artwork with appropriate
credit to the City.
11.2.3 Public Records Requests. Any documents provided by Artist to City are public
records and City may authorize third parties to review and reproduce such
documents pursuant to public records laws, including the San Francisco Sunshine
Ordinance and California Public Records Act.
11.3 Third Party Infringement, The City is not responsible for any third party infringement of
Artist's copyright and not responsible for protecting the intellectual property rights of Artist.
11.4. Credit. All reproductions by the City shall contain a credit to the Artist and a copyright
notice substantially in the following form; "Sculpture by Heath Sallow (c), date." The Artist
shall use his/her best efforts to include a credit reading substantially "An original work
commissioned by the City of Dublin, California" in any public showing under the Artist's
control of reproductions of the Work.
11.5 Publicity. City shall have the right to use Artist's name, likeness, and biographical
information, in connection with the display or reproduction and distribution of the Artwork
including all advertising and promotional materials regarding City or the City. Artist shall be
reasonably available to attend any inauguration or presentation ceremonies relating to the
public dedication of the Artwork.
11.6 Trademark. In the event that City's use of the Artwork creates trademark, service mark or
trade dress rights in connection with the Artwork, City shall have an exclusive and
irrevocable right in such trademark, service mark, or trade dress.
11.7 Resale Royalty. If City sells the Artwork as a fixture to real property, and if the resale
value of the Artwork is not itemized separately from the value of the real property, the
parties agree that the resale price of the Artwork shall be presumed to be less than the
purchase price paid by City under this Agreement. Thus, City has no obligation to pay
resale royalties pursuant to California Civil Code §986 or any other law requiring the
payment of resale royalties. If City sells the Artwork as an individual piece, separate from
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or itemized as part of a real property transaction, City shall pay to Artist a resale royalty to
the extent required by law, based upon the sale price of the Artwork.
11.8 If for any reason the proposed design is not implemented, all rights to the proposed
artwork shall be retained by the Artist. The City shall 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.
Section 12. OWNERSHIP OF RESULTS AND RISK OF LOSS
12.1 Title Transfer. Except in the case of early termination of this Agreement, title to the
Artwork shall transfer from Artist to City upon the City's Final Acceptance of the Artwork.
Title transfer shall be self - executing upon City's Final Acceptance. Artist will cooperate in
providing to City any title transfer documents City may request or require during or after
the Term of this Agreement
12.2 Risk of Loss. The risk of loss or damage to the Artwork shall be borne solely by Artist until
Final Acceptance of the Artwork by the City. Artist shall take steps to protect the Artwork
from loss or damage. The City staff shall make a good faith effort to inspect the Artwork
within 16 days after completion so that the City can approve the Artwork by resolution in a
timely fashion,
12.3 Ownership of Documents. Conceptual Design, Design Development Documents,
Construction Documents, Samples, Mock -ups and all other documents prepared and
submitted by Artist to the City pursuant to this Agreement shall belong to the City. Artist
may retain originals of such documents and items and provide copies to City.
Section 13. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Artist,
at its own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to
persons or damages to property that may arise from or in connection with the performance of the work
hereunder by the Artist and its agents, representatives, employees, and subcontractors. Artist shall provide
proof satisfactory to City of such insurance that meets the requirements of this section and under forms of
insurance satisfactory in all respects to the City. Artist shall maintain the insurance policies required by this
section throughout the term of this Agreement. The cost of such insurance shall be included in the Artist's
bid. Artist shall not allow any subcontractor to commence work on any subcontract until Artist has obtained
all insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of
the required insurance shall be submitted and made part of this Agreement prior to execution.
13.2 Commercial General and Automobile Liability Insurance.
13.2.1 General requirements. Artist, at its own cost and expense, shall maintain
commercial general and automobile liability insurance for the term of this
Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00)
per occurrence, TWO MILLION DOLLARS ($2,000,000.00) aggregate, combined
single limit coverage for risks associated with the work contemplated by this
Agreement. If a Commercial General Liability Insurance or an Automobile Liability
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form or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed under this
Agreement or the general aggregate limit shall be at least twice the required
occurrence limit. Such coverage shall Include but shall not be limited to, protection
against claims arising from bodily and personal injury, including death resulting
therefrom, and damage to property resulting from activities contemplated under
this Agreement, Including the use of owned and non -owned automobiles.
13.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as
broad as Insurance Services Office Commercial General Liability occurrence form
CG 0001 (ed. 11188) or 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.
Automobile coverage shall be at least as broad as Insurance Services Office
Automobile Liability form CA 0001 (ed. 12190) Code 8 and 9 ( "any auto "). No
endorsement shall be attached limiting the coverage.
13.2.3 Additional requirements. Each of the following shall be Included in the
insurance coverage or added as an endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be covered
as additional insureds with respect to each of the following: liability arising
out of activities performed by or on behalf of Artist, including the insured's
general supervision of Artist; products and completed operations of Artist;
premises owned, occupied, or used by Artist; and automobiles owned,
leased, or used by the Artist. The coverage shall contain no special
limitations on the scope of protection afforded to City or its officers,
employees, agents, or volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not
on a claims -made basis.
An endorsement must state that coverage is primary insurance with
respect to the City and its officers, officials, employees and volunteers,
and that no insurance or self- insurance maintained by the City shall be
called upon to contribute to a loss under the coverage.
Any failure of Artist to comply with reporting provisions of the policy shall
not affect coverage provided to City and its officers, employees, agents,
and volunteers.
An endorsement shall state that coverage shall not be canceled except
after thirty (30) days' prior written notice by certified mail, return receipt
requested, has been given to the City. Artist shall notify City within 14
days of notification from Artist's insurer if such coverage is suspended,
voided or reduced in coverage or in limits.
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13.3 All Policies Requirements.
13.3.1 Acceptability of insurers. All insurance required by this section is to be placed
with insurers with a Bests' rating of no less than AMI.
1112 Verification of - coverage. Prior to beginning any work under this Agreement,
Artist shall furnish City with certificates of insurance and with original
endorsements effecting coverage required herein. 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 City reserves the right to
require complete, certified copies of all required insurance policies, at any time.
13.3.3 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.
13.3.4 Variation. The City may approve a variation in the foregoing 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.
13.3.5 Deductibles and Self- Insured Retentions. Artist shall disclose to and obtain the
approval of City for the self- insured retentions and deductibles before beginning
any of the services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Artist may increase such deductibles or
self - insured retentions with respect to City, Its officers, employees, agents, and
volunteers, The Contract Administrator may condition approval of an increase in
deductible or self- insured retention levels with a requirement that Artist procure a
bond, guaranteeing payment of losses and related investigations, claim
administration, and defense expenses that is satisfactory in all respects to each of
them.
13.3.6 Notice of Reduction in Coverage. In the event that any coverage required by
this section is reduced, limited, or materially affected in any other manner, Artist
shall provide written notice to City at Artist's earliest possible opportunity and in no
case later than five days after Artist Is notified of the change in coverage.
13.4 Remedies. In addition to any other remedies City may have if Artist falls to provide or
maintain any insurance policies or policy endorsements to the extent and within the time
herein required, City may, at its sole option exercise any of the following remedies, which
are alternatives to other remedies City may have and are not the exclusive remedy for
Artist's breach:
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Obtain such insurance and deduct and retain the amount of the premiums for such
insurance from any sums due under the Agreement;
■ Order Artist to stop work under this Agreement or withhold any payment that becomes
due to Artist hereunder, or both stop work and withhold any payment, until Artist
demonstrates compliance with the requirements hereof; and/or
M Terminate this Agreement.
Section 14. INDEMNIFICATION AND ARTIST'S RESPONSIBILITIES. Artist shall indemnify, defend
with counsel mutually selected by the City and Artist, and hold harmless the City and its officials, officers,
employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actions,
damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to
property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole
or in part, by the willful misconduct or negligent acts or omissions of Artist or its employees, subcontractors,
or agents, by acts for which they could be held strictly liable, or by the quality or character of their work.
The foregoing obligation of Artist shall not apply when (1) the injury, loss of life, damage to property, or
violation of law arises wholly from the negligence or willful misconduct of the City or its officers, employees,
agents, or volunteers and (2) the actions of Artist or its employees, subcontractor, or agents have
contributed in no part to the injury, loss of life, damage to property, or violation of law. It is understood that
the duty of Artist to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of
the California Civil Code. Acceptance by City of insurance certificates and endorsements required under
this Agreement does not relieve Artist from liability under this indemnification and hold harmless clause.
This indemnification and hold harmless clause shall apply to any damages or claims for damages whether
or not such insurance policies shall have been determined to apply. By execution of this Agreement, Artist
acknowledges and agrees to the provisions of this Section and that it is a material element of consideration.
In the event that Artist or any employee, agent, or subcontractor of Artist providing services under this
Agreement is determined by a court of competent jurisdiction or the California Public Employees
Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Artist shall
indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions
for PERS benefits on behalf of Artist or its employees, agents, or subcontractors, as well as for the
payment of any penalties and interest on such contributions, which would otherwise be the responsibility of
City.
Section 15. STATUS OF ARTIST AS INDEPENDENT CONTRACTOR,
15.1 Independent Contractor. At all times during the term of this Agreement, Artist shall be an
independent contractor and shall not be an employee of City. City shall have the right to
control Artist only insofar as the results of Artist's services rendered pursuant to this
Agreement and assignment of personnel pursuant to Subparagraph 1.3; however,
otherwise City shall not have the right to control the means by which Artist accomplishes
services rendered pursuant to this Agreement. Notwithstanding any other City, state, or
federal policy, rule, regulation, law, or ordinance to the contrary, Artist and any of its
employees, agents, and subcontractors providing services under this Agreement shall not
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qualify for or become entitled to, and hereby agree to waive any and all claims to, any
compensation, benefit, or any incident of employment by City, including but not limited to
eligibility to enroll in the California Public Employees Retirement System (PERS) as an
employee of City and entitlement to any contribution to be paid by City for employer
contributions and/or employee contributions for PERS benefits.
15.2 !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 in
this Agreement,
15.3 Artist No Agent. 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.
Section 16. LEGAL REQUIREMENTS.
16.1 Governing Law. The laws of the State of California shall govern this Agreement
16.2 Compliance with Applicable Laws. Artist and any subcontractors shall comply with all
laws applicable to the performance of the work hereunder.
16.3 Other Governmental Regulations. To the extent that this Agreement may be funded by
fiscal assistance from another governmental entity, Artist and any subcontractors shall
comply with all applicable rules and regulations to which City is bound by the terms of such
fiscal assistance program.
16.4 Licenses and Permits. Artist represents and warrants to City that Artist and its
employees, agents, and any subcontractors have all licenses, permits, qualifications, and
approvals of whatsoever nature that are legally required to practice their respective
professions. Artist represents and warrants to City that Artist and its employees, agents,
any subcontractors shall, at their 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 to
practice their respective professions, In addition to the foregoing, Artist and any
subcontractors shall obtain and maintain during the term of this Agreement valid Business
Licenses from City.
16.5 Nondiscrimination and Equal 0 ortunit . Artist shall not discriminate, on the basis of
a person's race, religion, color, national origin, age, physical or mental handicap or
disability, medical condition, marital status, sex, or sexual orientation, against any
employee, applicant for employment, subcontractor, bidder for a subcontract, or participant
in, recipient of, or applicant for any services or programs provided by Artist under this
Agreement. Artist shall comply with all applicable federal, state, and local laws, policies,
rules, and requirements related to equal opportunity and nondiscrimination in employment,
contracting, and the provision of any services that are the subject of this Agreement,
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including but not limited to the satisfaction of any positive obligations required of Artist
thereby.
Section 17. TERMINATION AND MODIFICATION.
17.1 Termination. City may cancel this Agreement at any time and without cause upon written
notification to Artist.
Artist may cancel this Agreement upon thirty (30) days' written notice to City and shall
include in such notice the reasons for cancellation.
In the event of termination, Artist shall be entitled to compensation for services performed
to the effective date of termination; City, however, may condition payment of such
compensation upon Artist delivering to City any or all documents, photographs, computer
software, video and audio tapes, and other materials provided to Artist or prepared by or
for Artist or the City in connection with this Agreement.
17.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection V. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Artist understands and
agrees that, if City grants such an extension, City shall have no obligation to provide Artist
with compensation beyond the maximum amount provided for in this Agreement.
Similarly, unless authorized by the Contract Administrator, City shall have no obligation to
reimburse Artist for any otherwise reimbursable expenses incurred during the extension
period.
17.3 Amendments. The parties may amend this Agreement only by a writing signed by all the
parties.
97.4 Assignment and Subcontracting. City and Artist recognize and agree that this
Agreement contemplates personal performance by Artist and is based upon a
determination of Artist's unique personal competence, experience, and specialized
personal knowledge. Moreover, a substantial inducement to City for entering into this
Agreement was and is the professional reputation and competence of Artist. Artist may
not assign this Agreement or any interest therein without the prior written approval of the
Contract Administrator. Artist shall not subcontract any portion of the performance
contemplated and provided for herein, other than to the subcontractors noted in the
proposal, without prior written approval of the Contract Administrator.
17.5 Survival. All obligations arising prior to the termination of this Agreement and all
provisions of this Agreement allocating liability between City and Artist shall survive the
termination of this Agreement.
17.6 Options upon Breach by Artist. If Artist materially breaches any of the terms of this
Agreement, City's remedies shall included, but not be limited to, the following;
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17.5.1 Immediately terminate the Agreement;
17.6.2 Retain the plans, specifications, drawings, reports, design documents, and any
other work product prepared by Artist pursuant to this Agreement;
17,6.3 Retain a different Artist to complete the work described in Exhibit A not finished by
Artist; or
17.6.4 Charge Artist the difference between the cost to complete the work described in
Exhibit A that is unfinished at the time of breach and the amount that City would
have paid Artist pursuant to Section 2 if Artist had completed the work.
Section 18. KEEPING AND STATUS OF RECORDS.
18.1 City Access to Artwork; Inspection of Work and Artwork. City shall have the
reasonable right to, at Its sole expense, inspect the Work, including the Artwork, at the
fabrication Site during any phase of the project at any time, In the event that all or part of
the Work is created in a location other than the Site, the City shall have the right to inspect
the Work, including the Artwork, at any phase of the project following 48 hours written
notice from the City to the Artist. The Artist shall be responsible for facilitating City's prompt
access to Artist's property or the property of the Artist's subcontractors where the Work or
portions of the Work are being fabricated or installed.
18.2 Status Reports. Artist shall submit written reports regarding the status of the Work,
including the Artwork, as may be reasonably requested by the City, The City shall
determine the format for the content of such reports. The timely submission of all reports is
a necessary and material term and condition of this Agreement. The reports, including any
copies, shall be submitted on recycled paper and printed on double -sided pages to the
maximum extent possible.
18.3 Artist Availability. Artist or Artist's authorized agent shall be available at Artist's sole
expense for up to 2 visits to Dublin to ensure the proper installation and operation of the
Artwork. During each visit to Dublin, unless otherwise agreed upon by the City, the Artist's
visit shall last for at least a full 8 hour day.
18.4 Records Created as Part of Artist's Performance. With the exception of model
submitted with initial proposal, all reports, data, maps, models, charts, studies, surveys,
photographs, memoranda, plans, studies, specifications, records, files, or any other
documents or materials, in electronic or any other form, that Artist prepares or obtains
pursuant to this Agreement and that relate to the matters covered hereunder shall be the
property of the City. Artist hereby agrees to deliver those documents to the City upon
termination of the Agreement. It is understood and agreed that the documents and other
materials, including but not limited to those described above, prepared pursuant to this
Agreement are prepared specifically for the City and are not necessarily suitable for any
future or other use, City and Artist agree that, until final approval by City, all data, plans,
specifications, reports and other documents are confidential and will not be released to
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third parties without prior written consent of both parties, It is also agreed that proposal
model remains property of the Artist and will be returned to Artist after the finished
sculpture is installed.
18.5 Artist's Books and Records. Artist shall maintain any and all ledgers, books of account,
invoices, vouchers, canceled checks, and other records or documents evidencing or
relating to charges for services or expenditures and disbursements charged to the City
under this Agreement for a minimum of three (3) years, or for any longer period required
by law, from the date of final payment to the Artist to this Agreement.
18.6 Inspection and Audit of Records. Any records or documents that Section 92 of this
Agreement requires Artist to maintain shall be made available for inspection, audit, andlor
copying at any time during regular business hours, upon oral or written request of the City.
Under California Government Code Section 8548.7, if the amount of public funds
expended under this Agreement exceeds TEN THOUSAND COLLARS ($10,000,00), the
Agreement shall be subject to the examination and audit of the State Auditor, at the
request of City or as part of any audit of the City, for a period of three (3) years after final
payment under the Agreement.
Section 19, MISCELLANEOUS PROVISIONS.
19.1 Attorneys' l=ees. If a party to this Agreement brings any action, including an action for
declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees in addition to any other relief to which
that party may be entitled, The court may set such fees in the same action or in a
separate action brought for that purpose.
19.2 Venue. In the event that either party brings any action against the other under this
Agreement, the parties agree that trial of such action shall be vested exclusively in the
state courts of California in the County of Alameda.
19.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this
Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so
adjudged shall remain in full force and effect. The invalidity in whole or in part of any
provision of this Agreement shall not void or affect the validity of any other provision of this
Agreement.
19.4 No Implied Waiver of Breach. 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.
19.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of
and shall apply to and bind the successors and assigns of the parties.
19.6 Use of Recycled Products. Artist shall prepare and submit all reports, written studies and
other printed material on recycled paper to the extent it is available at equal or less cost
than virgin paper.
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191 Conflict of Interest. Artist may serve other clients, but none whose activities within the
corporate limits of City or whose business, regardless of location, would place Artist in a
"conflict of interest," as that term is defined in the Political Reform Act, codified at California
Government Code Section 81000 et seq.
Artist shall not employ any City official in the work performed pursuant to this Agreement.
No officer or employee of City shall have any financial interest in this Agreement that
would violate California Government Code Sections 1090 et seq.
Artist hereby warrants that it is not now, nor has it been in the previous twelve (12) months,
an employee, agent, appointee, or official of the City. If Artist was an employee, agent,
appointee, or official of the City in the previous twelve months, Artist warrants that it did not
participate in any manner in the forming of this Agreement. Artist understands that, if this
Agreement is made in violation of Government Code §1090 et.seq., the entire Agreement
Is void and Artist will not be entitled to any compensation for services performed pursuant
to this Agreement, including reimbursement of expenses, and Artist will be required to
reimburse the City for any sums paid to the Artist. Artist understands that, in addition to
the foregoing, it may be subject to criminal prosecution for a violation of Government Code
§ 1090 and, if applicable, will be disqualified from holding public office in the State of
California.
19.8 Solicitation. Artist agrees not to solicit business at any meeting, focus group, or interview
related to this Agreement, either orally or through any written materials.
19.9 Contract Administration. This Agreement shall be administered by the City Manager or
his/her designee ( "Contract Administrator "). All correspondence shall be directed to or
through the Contract Administrator or his or her designee.
19.10 Notices. Any written notice to Artist shall be sent to:
Heath Satow
1218 S. Santa Fe Avenue
Los Angeles, CA 90021
(626) 318 -5950
hs@publicsculpture.com
www. pu bl icscul ptu re, cam
Any written notice to City shall be sent to:
Chris Foss, City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
(925) 556 -4565
19.11 Professional Seal. Where applicable in the determination of the contract administrator,
the first page of a technical report, first page of design specifications, and each page of
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construction drawings shall be stamped /sealed and signed by the licensed professional
responsible for the repoWdesign preparation. The stamp /sea] shall be in a block entitled
"Seal and Signature of Registered Professional with reportldesign responsibility," as in the
following example,
Seal and Signature of Registered Professional with
report/design responsibility.
19.12 Integratlon. This Agreement, including the proposal, scope of work, and payment
schedule attached hereto and incorporated herein as Exhibits A, Band represents the
entire and integrated agreement between City and Artist and supersedes all prior
negotiations, representations, or agreements, either written or oral.
CITY OF DUBLIN
Chris Foss, City Manager
Attest;
Caroline Soto, City Clerk
Approved as to Form,
John Bakker, City Attorney
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ARTIST
Heath Satow, Artist z-.- q' f-
January 19, 2010
EXHIBIT A
PROPOSAL
Attached is Artist's Proposal at the time of the Agreement date.
"Proposal" shall mean the proposed visual, aesthetic, and artistic intent and design of the Artwork
incorporated in the Contract Documents approved by the Dublin City Council. The most recent
design approved by the Dublin City Council is incorporated herein by reference, and is binding
unless or until changes are approved by resolution of the Dublin City Council,
Artist's Proposal shall be automatically superseded by any Contract Documents that are later
approved by the City Council
Artist's proposal will be developed, fabricated and installed in accordance with Exhibit B: Scope of
Work.
SATOW 1218 5 SANTA FE AVE
I LDS ANGELES CA 90027
S T O R E 626.318.5950
Elates
W W W.P USLICSCU LPTU R E.COM
H S @PUBLICSCU LPFU R E.COM
A sculpture proposal for the City of Dublin's Fallon Sports Park
"The glory of sport is horn at the moment when the game and the person become one, when all the
complexity of one's life finds a moment to emerge in the game. "
— Timolhy Shriven, Ph.D.
Inspiration:
In team or one -on -one sports, the root of the athletic experience is to reach deep and realize one's best
abilities, It is this concept which inspired my contemporary stainless steel sculpture Elatus. With its
highly polished mirror - finished surfaces, Elatus expresses athletic triumph; the celebration of joy and
glory — when game and athlete become one.
Site location:
Site visits are critical to me. While drawings can be used to select what seems to be a logical placement,
that can all change dramatically with a site visit.
When I visited the site, it was clear to me where the piece belonged: high on the hill at the corner of the
park. Locating a significant work here creates an epic statement; with sweeping vistas it is surrounded
by sky from every view. 1 knew at once the piece must be regal with a commanding presence to create a
timeless, iconic landmark for the City of Dublin's Fallon Sports Park.
With Dublin being named after a port city in Ireland, I was drawn to the peak of this hill, viewing it like
the bow of a ship. This was the spot.
Title:
The Latin title is intended to evoke connotations of ancient Greek mythology and their Olympic Games,
the foundation of modern sport.
Elatus
elatus
verb
Perfect passive participle of effero ( "bring or carry out, forth or away; produce; lift up ")
raised, elevated, exalted, extolled, transported, lifted
Sculpture description:
The shape of Elattts evokes the human form at its greatest potential: the familiar silhouette of an athlete
in full body extension. You see this in all sports; from the soccer goal keeper diving to intercept, the
tennis player serving, a baseball player making the impossible catch and a basketball slam dunk. The
"bow of a ship" image inspired thoughts of figureheads on ships. This tied in perfectly with the arched
spoils figures.
There is familiarity in the imperfect symmetry of Elatus. The sculpture does not present an immediately
obvious meaning, but is easily within grasp. The enigma is revealed upon altering your viewing
perspective: this is an athletic form. Strong. Regal. Proud.
The sculpture's shape is a contemporary form rooted in the historical: subtle references ranging from the
powerful form of the ancient Winged Nctory sculpture to more subtle nods to Brancusi's Bard in Space
and Endless Column can be seen. The form of Elatus is at once classical and contemporary, reflecting
the beautiful surrounding Dublin environment: the mountains in the distance, the grand open sky around
it, and the people that walls up to it. Reinforcing the concept of art providing a new perspective, the
subtle concave surfaces of Elatus reflect earth inverted to sky.
Pedestal:
The base is modeled after classic sculpture pedestals (similar to the Statue of Liberty) giving the work a
tie to the past and an added perception of importance. On the base are bronze plaques, featuring quotes
sourced from interfacing with the Dublin community,
Iconic landmark 11hoto 9VXnrtunijX.
The sculpture presents an iconic photo opportunity for teams, a work that will become well recognized
as a symbol of this location and Dublin itself.
Technical Details:
Dimensions: sculpture with pedestal, approximately 3 F tall, 14' wide, 14' deep
Finished weight: 2500 tbs. (not including pedestal)
Materials: 316 (marine grade) stainless steel, concrete and bronze
Finishes: mirror- polished, smooth cast
All surfaces are the same radius of about eleven feet, which, after a short distance from the sculpture,
literally flips the visual world upside down due to the optical effects created by a concave surface.
Maintenance:
Similar to that of a basic car washing: occasional rinsing with water, mild soapy water applied with soft
rags to remove any environmental deposits, then rinsed clean and dried with synthetic chamois cloth.
Since piece is primarily vertical and very smooth, collection of environmental dirt will be minimal.
There are no paints or sealers that would degrade over time, and graffiti is easily removed with paint
solvent without any worries of damaging a patina.
Fabrication:
The stainless steel sculpture would be built in the artist's Los Angeles studio. Any outsourced work
(laser cutting of parts, etc) will be done locally in the Los Angeles area by shops the artist has worked
with for over a decade. None of the work is jobbed out to overseas fabricators. We know we can produce
the work we design because we have been building the work ourselves for over two decades, I take great
pride in the .Fact that we have completed every single one of our projects on budget and on time, without
exception. My design approach is a collaborative one. As an artist, I remain flexible and open to
architectural and committee input while honing the artistic vision of the sculptures.
Installation:
The sculpture would be fabricated in one piece weighing roughly 2500lbs. The foundation, platforms,
and interior of pedestal would be poured in place on site by city, later to be clad in finely finished
custom precast concrete panels. A base plate would attach with bolts or be cast into the concrete
foundation on -site. Lighting by the city in the pedestal would be wired to existing stubbed electrical on
site. Specs for lighting will be coordinated with artist.
Viewer interaction:
The sculpture provides a perfect photo opportunity, immediately establishing a sense of place. The piece
is at ground level on the walking path scaled such that an entire sports team could stand and sit on the
steps of the pedestal for a group photo. The changing appearance due to the reflectivity of the surfaces
encourages people to move around the sculpture, as the experience of the art changes dramatically with
the viewing angle, time of day, and time of year,
Project Experience:
I enjoy the challenge of creating art that appeals to a diverse audience; from children to art critics.
Designing public art for over twenty three years, I am keenly aware that my art not only needs to enrich
and engage the community; it must a] so meet public safety requirements and have a minimal
maintenance commitment. My sculptures located in zoos, airports and other locations are examples of
successful public alt that fulfills these requirements.
Thank you for this opportunity,
Heath Satow
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EXHIBIT B
SCOPE OF WORK
SCHEDULE FOR COMPLETION OF WORK. The following fabrication schedule shall be adhered
to in the performance of the work. During the term of this Agreement, the City Project Manager
must approve Artist's work at each phase of development before the Artist proceeds to the next
phase. The City Project Manager for this Agreement is:
Tegan McLane
Cultural Arts and Heritage Manager
100 Civic Plaza
Dublin, CA 94568
(925) 556 -4565
tegan.mr,lane@dublin.ca.gov
DELIVERABLES:
1. Fully Executed Contract
2, Evidence of All Required Insurance
DUE DATE:
January 1, 2016
January 1, 2016
The scope of work under this phase includes engineering of the artwork and pedestal /foundation
and lighting. Pedestal /foundation and lighting are to be constructed by the City, according to
agreed -upon engineering drawings.
1. Artist shall work with engineers to create stamped drawings for foundation/pedestal design for
city to construct, Design of precast panels to clad exterior of foundation/pedestal will be
completed.
2. Phase will be considered complete when stamped engineering drawings have been received
by City Project Manager, Payment may be released earlier than date specified should Phase be
deemed complete.
DELIVERABLES: DUE DATE:
1. Engineered Documents. Two months after Fallon Park
contractor aareement signed
The scope of work under this phase includes fabrication of sculpture to 50% completion, and
delivery of necessary information to allow the City to conduct public outreach efforts to determine
inscriptions for the pedestal plaques, including artist's inscription for one of the four sides,
• Interior structure will be completed, and external parts will be laser cut and rolled to final
curvature.
• Phase will be considered complete when photos are provided for proof of 50% completion, or
as determined by a studio visit. Payment may be released earlier than date specified should
Phase be deemed complete.
DELIVERABLES:
1. Artist's inscription for one of pedestal plaques, and any word
or character count limitations to apply to the three additional
plaques. Artist will work with City representative to conduct
online outreach and will actively participate in one
community meeting as part of community outreach process.
2. Proof of 50% sculpture completion as outlined above.
The scope of work under this phase includes:
■ Completion of sculpture fabrication.
DUE DATE:
Sixteen weeks prior to park
completion date
■ Phase will be considered complete when photos are provided for proof of 100% completion, or
as determined by a studio visit. Payment may be released earlier than date specified should
Phase be deemed complete.
DELIVERABLES: DUE DATE:
1. Proof of 100% sculpture completion as outlined above. Twelve weeks prior to park
completion date
The scope of work under this phase includes:
• Completed casting of pedestal /foundation cladding. Completed bronze plaques for pedestal.
Three plaques will bear inscriptions provided by the City, as determined through a public
outreach process.
• Phase will be considered complete when photos or studio visit shows proof of completion of
cladding and plaques. Payment may be released earlier than date specified should Phase be
deemed complete.
DELIVERABLES:
1, Proof of completion of the cladding and bronze plaques as
outlined above.
The scope of work under this phase includes:
DUE DATE;
Eight weeks prior to park
completion date
• Prior to transportation and installation of Artwork, Artist's structural engineer shall verify in
writing that the preparation of the artwork attachment or mounting system and installation is
being implemented in accordance with the signed stamped structural engineering drawings.
• Artist shall prepare the Artwork for transportation in accordance with customary industry
standards for the transportation of fine works of art.
• Artist shall provide for the transportation of the Artwork from storage to the installation site.
Artist shall not transport the Artwork until access to the Site has been approved and scheduled
by the Contract Administrator.
■ Artist shall create with the City Project Manager an installation plan indicating the staging and
sequence of all aspects of installation. The Installation Plan must include a detailed
description of the estimated duration of installation, the equipment to be used, and all workers
who will be on site to assist.
• Artist shall consult with the City, the Project Construction Management Team and General
Contractor prior to and during the installation of the Artwork.
• Artist shall coordinate Artist's activities on site with the General Contractor through the
Construction Management Team and/or the City staff.
■ The preparation of the Site for installation of the Artwork shall be the responsibility of the
General Contractor in accordance with a separate written agreement between City and the
General Contractor.
• City will coordinate with project Contractor rental of equipment to install the Artwork.
• Artist shall supply all hardware necessary for installation.
• Where Artist's Artwork is associated with that of the General Contractor, or any other
Contractor engaged by the City to do work on the Site, Artist shall examine the work of such
other Contractor and report in writing to the City any visible defect or condition preventing the
proper execution of Artist's Work.
• If Artist proceeds without giving notice, the Artist shall be held to have approved the work or
material and the existing conditions, and shall be responsible for any defects in Artist's own
Work consequent thereon, and shall not be relieved of any obligation or any guarantee
because of any such condition or imperfection.
• To the extent that any part of the Artist's Artwork is to interface with work performed or
installed by the General Contractor or other Contractor engaged by City to perform work on
the Site, Artist shall inspect and measure the in -place work and promptly report to the City any
defect in such in -place work that will impede or increase the cost of Artist's interface unless
corrected,
• City and/or its authorized representatives will require the party responsible for the defective
work to make corrections so as to conform to its contract requirements, or if the defect is the
result of a default or omission in the contract documents, may issue a change order.
• If Artist fails to measure, inspect and /or report defects that are reasonably discoverable, all
costs of accomplishing the interface shall be borne by Artist. The forgoing does not apply to
latent defects. Artist shall report to City any latent defects in another Contractor's work at any
time such defects become known.
® City or its authorized representatives shall promptly thereafter take such steps as may be
appropriate. Any difference or conflict that may arise between Artist and the General
Contractor, or other Contractors engaged by City to perform work on the Site, shall be
adjusted as determined by City, its agents, or its authorized representatives when necessary
to facilitate the work of Artist and/or other Contractors or workers.
• No damages or claims by Artist will be allowed other than an extension of time for the
completion of Work. Such an extension will be for the period of time City shall consider Artist
to have been delayed in the completion of Work by reason of the work of other Contractors or
workers.
• Artist shall deliver all information necessary for the City to properly care for and maintain the
Artwork, including information regarding the physical make -up of the Artwork, methods and
materials, and information about the artistic intent of Artist in the Design, Fabrication and
Installation of the Artwork
6 Final inspection and closed permits.
Phase will be considered complete when all deliverables have been received by City Project
Manager. Payment may be released earlier than date specified should Phase be deemed
complete.
DELIVERABLES;
1, Delivery and Installation Plan developed with City Project
Manager and Design Team
2. Successful installation of Artwork.
3. Final inspection of the Artwork following installation
4. Final inspection by the City of Dublin and closed permits.
5. Receipt of Artwork Maintenance Records
DUE DATE:
Eight weeks prior to park
completion date
Three weeks prior to park
completion date
Two weeks prior to park
completion date
One month after park
completion date
One month after park
completion date
EXHIBIT C
PAYMENT SCHEDULE
PHASE OF
EXECUTION
COMPLETION
Execution of Contract 10
ARTIST FEE
10 $24,600
Phase I
Engineering
25
35
$61,544
Phase II
50% Sculpture Fabrication
25
60
$61,500
Phase III
100% Sculpture Fabrication
20
80
$49,200
Phase IV
Completion of Pedestal Cladding
and Plaques
10
90
$24,600
Phase V
Installation & Closeout
10
100
$24,600
TOTAL ARTIST FEE $245,000