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HomeMy WebLinkAboutItem 4.07 - 1259 SF Art Conservation Contract Page 1 of 2 STAFF REPORT CITY COUNCIL DATE: December 20, 2016 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Agreement with SF Art Conservation for Repairs and Maintenance of the City's Public Art Collection Prepared by: Tegan McLane, Cultural Arts and Heritage Manager EXECUTIVE SUMMARY: The City Council will consider approval of an agreement with SF Art Conservation for repairs and maintenance of public artwork in the City's permanent public art collection. STAFF RECOMMENDATION: Adopt the Resolution Approving a Public Art Repair and Maintenance Agreement with SF Art Conservation. FINANCIAL IMPACT: The Agreement amount is for $90,000 through the remainder of this Fiscal Year. Funding for maintenance was included in this year's Operating Budget. DESCRIPTION: The City of Dublin has a robust public art collection consisting of more than 30 pieces, mostly outdoor sculpture, murals and tile works acquired in the last 20 years. A review by a art conservator in spring 2015 estimated the combined value at $3.17 million. The review also indicated approximately $134,000 worth of deferred maintenance and repairs were needed, as most of the pieces have had no maintenance since their acquisition. Commonly accepted best practice for public art collections is to conduct routine maintenance on a planned schedule and have the artist or a trained art conservator make repairs as needed for vandalism, accidents and weather-related decay. Developing a formal public art maintenance plan was added to the Staff's work plan in 2015. Following City Council's authorization this spring of a transfer from the Public Art Page 2 of 2 Fund to the Public Art Maintenance budget for this purpose, Staff issued a Request for Proposals for Public Art Repair and Maintenance. Five proposals were received. Proposals were reviewed by the Director of Parks and Community Services and the Cultural Arts and Heritage Manager. The top three firms were interviewed by phone. As there was one firm that was clearly better-suited to deliver all the desired service within Dublin's price range, that firm was invited to further discuss the project. SF Art Conservation, located in San Francisco, has a team of conservators and conservation technicians currently m aintaining collections for the San Francisco Arts Commission, City of Pleasanton and private collections including the Doris and Donald Fisher Collection and the Anderson Collection at Stanford. The firm also regularly works with SFMOMA, Berkeley Art Museum and California Academy of Sciences. References were excellent, and Staff is particularly pleased that the firm is near enough to respond quickly to vandalism and other emergencies. SF Art Conservation was offered a "trial job," removing substantial hard water deposits from the Emerald Glen Fountain artwork in preparation for turning the water back on after the drought restrictions where lifted. The work was completed on time, within budget, and the team interfaced well with MCE and demonstrated excel lent communication with Staff throughout the project. SF Art Conservation and the City's Cultural Arts and Heritage Manager will jointly prioritize the needed repairs, and work will begin in January, with a goal of accomplishing as much of the work as budget and weather will allow by June. The not-to-exceed amount is $90,000. Attachment 1 is a Resolution Approving the Agreement with SF Art Conservation. Attachment 2 is the Agreement, including scope of work and fee schedule. NOTICING REQUIREMENTS/PUBLIC OUTREACH: None. ATTACHMENTS: 1. Resolution Approving a Public Art Repair and Maintenance Agreement with SF Art Conservation 2. SF Art Conservation Agreement RESOLUTION NO. XX-16 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * * * APPROVING A PUBLIC ART REPAIR AND MAINTENANCE AGREEMENT WITH SF ART CONSERVATION WHEREAS, the City of Dublin currently owns more than 30 pieces of pu blic art valued at approximately $3.17 million, according to a 2015 conservation report commissioned by City Council; and WHEREAS, the conservation report identified approximately $134,000 worth of repairs and deferred maintenance necessary to prolong the life of the artworks and prevent certain pieces from becoming a public safety hazard or blight; and WHEREAS, the City desires to protect its investment and preserve the artwork for the enjoyment of the community for years to come ; and WHEREAS, the City is committed to adhering to best practices in the public art field, including conducting routine annual maintenance and having repairs made by qualified art conservators when necessary; and WHEREAS, SF Art Conservation is a highly respected art conservation company with expertise in a wide variety of artworks, excellent references and close proximity to Dublin; and WHEREAS, both parties wish to enter into a contractual agreement where SF Art Conservation is available on a task basis to conduct routine maintenance and repairs as needed, including emergency repairs for artwork that is damaged by vandalism an d poses a public safety hazards. NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Dublin hereby approves the Agreement with SF Art Conservation. BE IT FURTHER RESOLVED, that the City Council authorizes the City Manager to execute an agreement with SF Art Conservation to conduct public art maintenance and repairs on a planned and as-needed basis. PASSED, APPROVED, AND ADOPTED this 20th day of December 2016 by the following vote: AYES: NOES: ABSENT: ABSTAIN: ______________________________ David Haubert, Mayor ATTEST: ________________________________ Caroline Soto, City Clerk Contract Services Agreement between December 20, 2016 City of Dublin and SF Art Conservation Page 1 of 11 CONTRACT SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND SF ART CONSERVATION THIS AGREEMENT for contract services is made by and between the City of Dublin (“City”) and SF Art Conservation (“Contractor”) as of December 20, 2016. Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Contractor shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and place and in the manner specified by the respective executed Task Orders, a sample of is attached hereto and incorporated herein as Exhibit B. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, and/or and any executed Task Orders, 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 June 30, 2017, the date of completion specified in Exhibit A, and Contractor 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 8. The time provided to Contractor to complete the services required by this Agreement shall not affect the City’s right to terminate the Agreement, as provided for in Section 8. Notwithstanding the foregoing this Agreement may be extended on a month-to-month basis for up to 6 months upon the written consent of the Contractor and the City Manager, provided that; a) sufficient funds have been appropriated for such purpose, and b) the price charged by the Contractor for the provision of the services described in Exhibit A does not increase. None of the foregoing shall affect the City’s right to terminate the Agreement, as provided for in Section 8. 1.2 Task Order. Prior to execution of a Task Order, the City shall request a Task Order Scope Proposal from the Consultant. Consultant shall provide the City with a Task Order Scope Proposal, and if satisfactory, the City and Consultant shall execute a Task Order. Upon an executed Task Order, Consultant shall perform the services listed in the Task Order and in a manner consistent with this Agreement. 1.3 Standard of Performance. Contractor shall perform all services required pursuant to this Agreement in the manner and according to the standards and professional ethics observed by a competent practitioner of the profession in which Contractor is engaged in the geographical area in which Contractor practices its profession. Contractor shall prepare all work products required by this Agreement in a substantial, first-class manner and shall conform to the standards of quality normally observed by a person practicing in Contractor’s profession. 1.4 Assignment of Personnel. Contractor 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, Contractor shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons. 1.5 Time. Contractor 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 Contractor’s obligations hereunder. 1.6 Public Works Requirements. Because the services described in Exhibit A may include “work performed during the design and preconstruction phases of construction including, but not limited Contract Services Agreement between December 20, 2016 City of Dublin and SF Art Conservation Page 2 of 11 to, inspection and land surveying work,” the services may constitute a public works within the definition of Section 1720(a)(1) of the California Labor Code. As a result, Contractor is required to comply with the provisions set forth in Exhibit D, which is attached hereto and incorporated herein In addition, Contractor shall comply with requirements of the Department of Industrial Relations requiring contractors to upload Certified Payroll Records for all work subject to prevailing wage. http://www.dir.ca.gov/Public-Works/Certified-Payroll-Reporting.html City shall register this project within five days of executing Agreement and will notify per section 10.10 with the Project Number. Section 2. COMPENSATION. This Agreement does not guarantee any amount of work for the Consultant. Task Orders will be developed and executed as needed and provided for in this Agreement. The Consultant shall be paid by the City only for completed services rendered under each approved individual Task Order. Such payment shall be full compensation for payment shall be full compensation for work performed or services rendered and for all labor, materials, supplies, equipment and incidentals necessary to complete the work stated in the Task Order. Notwithstanding the foregoing, Consultant shall not receive total compensation under this Agreement in an amount $90,000 In the event of a conflict between this Agreement and Consultant’s proposal, regarding the amount of compensation, the Agreement shall prevail. The payments for completed work under an executed Task Order shall be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City in writing, Consultant shall not bill City for duplicate services performed by more than one person. Contractor and City acknowledge and agree that compensation paid by City to Contractor under this Agreement is based upon Contractor’s costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Contractor. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Contractor and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement. 2.1 Invoices. Contractor shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services incurred prior to the invoice date. No individual performing work under this Contract shall bill more than 2,000 hours in a fiscal year unless approved, in writing, by the City Manager or his/her designee. Invoices shall contain the following information:  The dates of service provided at each facility;  Location of each service;  Daily logs of total hours worked by each individual performing work under this Contract o Hours must be logged in increments of tenths of an hour or quarter hours o If this Contract covers multiple projects, all hours must also be logged by project assignment o A brief description of the work  The Contractor’s signature. 2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Contractor. 2.3 Total Payment. City shall pay for the services to be rendered by Contractor pursuant to this Agreement. City shall not pay any additional sum for any other expense or cost whatsoever Contract Services Agreement between December 20, 2016 City of Dublin and SF Art Conservation Page 3 of 11 incurred by Contractor 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 Contractor 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. 2.4 Hourly Fees. Fees for work performed by Contractor on an hourly basis shall not exceed the amounts shown on the fee schedule set forth on the compensation schedule attached as Exhibit C. 2.5 Payment of Taxes. Contractor is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.6 Payment upon Termination. In the event that the City or Contractor terminates this Agreement pursuant to Section 8, the City shall compensate the Contractor for all outstanding costs incurred for work satisfactorily completed as of the date of written notice of termination. Contractor shall maintain adequate logs and timesheets in order to verify costs incurred to that date. 2.7 Authorization to Perform Services. The Contractor 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. Further, the Contract Administrator has authority to approve Task Orders under this Agreement. Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Contractor 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 Contractor only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein. City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Contractor’s use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities. Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Contractor, 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 Contractor and its agents, representatives, employees, and subcontractors. Contractor 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. Contractor 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 Contractor’s bid. Contractor shall not allow any subcontractor to commence work on any subcontract until Contractor 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. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to City as an additional insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits Contract Services Agreement between December 20, 2016 City of Dublin and SF Art Conservation Page 4 of 11 specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. The additional insured coverage under the Contractor’s policy shall be “primary and non-contributory” and will not seek contribution from City’s insurance or self- insurance and shall be at least as broad as CG 20 01 04 12. In the event Contractor fails to maintain coverage as required by this Agreement, City at its sole discretion may purchase the coverage required and the cost will be paid by Contractor. Failure to exercise this right shall not constitute a waiver of right to exercise later. Each insurance policy shall include an endorsement providing that it shall not be cancelled, changed, or allowed to lapse without at least thirty (30) days’ prior written notice to City of such cancellation, change, or lapse. 4.1 Workers’ Compensation. Contractor shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed directly or indirectly by Contractor. The Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident. In the alternative, Contractor may rely on a self- insurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or the Contractor, if a program of self-insurance is provided, shall waive all rights of subrogation against the City and its officers, officials, employees, and volunteers for loss arising from work performed under this Agreement. 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. Contractor shall notify City within 14 days of notification from Contractor’s insurer if such coverage is suspended, voided or reduced in coverage or in limits. 4.2 Commercial General and Automobile Liability Insurance. 4.2.1 General requirements. Contractor, 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, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability 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. 4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 Code 1 (“any auto”). 4.2.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as an endorsement to the policy: Contract Services Agreement between December 20, 2016 City of Dublin and SF Art Conservation Page 5 of 11 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 Contractor, including the insured’s general supervision of Contractor; products and completed operations of Contractor; premises owned, occupied, or used by Contractor; and automobiles owned, leased, or used by the Contractor. 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. c. 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. d. Any failure of Contractor to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers. e. 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. Contractor shall notify City within 14 days of notification from Contractor’s insurer if such coverage is suspended, voided or reduced in coverage or in limits. 4.4 All Policies Requirements. 4.4.1 Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII. 4.4.2 Verification of coverage. Prior to beginning any work under this Agreement, Contractor 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 and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later. 4.4.3 Subcontractors. Contractor agrees to include with all subcontractors in their subcontract the same requirements and provisions of this Agreement including the Indemnification and Insurance requirements to the extent they apply to the scope of the Subcontractor’s work. Subcontractors hired by Contractor agree to be bound to Contractor and the City in the same manner and to the same extent as Contractor is bound to the City under the Contract Documents. Subcontractor further agrees to include these same provisions with any Sub-subcontractor. A copy of the Owner Contract Document Indemnity and Insurance provisions will be furnished to the Subcontractor upon request. The General Contractor shall require all subcontractors to provide a valid certificate of insurance and Contract Services Agreement between December 20, 2016 City of Dublin and SF Art Conservation Page 6 of 11 the required endorsements included in the agreement prior to commencement of any work and will provide proof of compliance to the City. 4.4.4 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. 4.4.5 Deductibles and Self-Insured Retentions. All self-insured retentions (SIR) and/or deductibles must be disclosed to the City for approval and shall not reduce the limits of liability. Policies containing any self-insured retention provision and/or deductibles shall provide or be endorsed to provide that the SIR and/or deductibles may be satisfied by either the named insured or the City. 4.4.6 Excess Insurance. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City (if agreed to in a written contract or agreement) before City’s own insurance or self-insurance shall be called upon to protect City as a named insured. 4.4.7 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, Contractor shall provide written notice to City at Contractor’s earliest possible opportunity and in no case later than five days after Contractor is notified of the change in coverage. 4.5 Remedies. In addition to any other remedies City may have if Contractor fails 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 Contractor’s breach:  Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;  Order Contractor to stop work under this Agreement or withhold any payment that becomes due to Contractor hereunder, or both stop work and withhold any payment, until Contractor demonstrates compliance with the requirements hereof; and/or  Terminate this Agreement. Section 5. INDEMNIFICATION AND CONTRACTOR’S RESPONSIBILITIES. To the maximum extent allowed by law, Contractor shall indemnify, keep and save harmless the City, and City Councilmembers, officers, agents and employees against any and all suits, claims or actions arising out of any injury to persons or property, including death, that may occur, or that may be alleged to have occurred, in the course of the performance of this Agreement by a negligent act or omission or wrongful misconduct of the Contractor or its employees, subcontractors or agents. Contractor further agrees to defend any and all such actions, suits or claims and pay all charges of attorneys and all other costs and expenses arising therefrom or incurred in connection therewith; and if any judgment be rendered against the City or any of the other individuals enumerated above in any such action, Contractor shall, at its expense, satisfy and discharge the same. Contractor’s responsibility for such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law. The defense Contract Services Agreement between December 20, 2016 City of Dublin and SF Art Conservation Page 7 of 11 and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement. In the event that Contractor or any employee, agent, or subcontractor of Contractor 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, Contractor shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Contractor 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. Contractor/Subcontractor’s responsibility for such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law. Section 6. STATUS OF CONTRACTOR. 6.1 Independent Contractor. At all times during the term of this Agreement, Contractor shall be an independent contractor and shall not be an employee of City. City shall have the right to control Contractor only insofar as the results of Contractor’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 Contractor accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors providing services under this Agreement shall not 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. 6.2 Contractor No Agent. Except as City may specify in writing, Contractor shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. Section 7. LEGAL REQUIREMENTS. 7.1 Governing Law. The laws of the State of California shall govern this Agreement. 7.2 Compliance with Applicable Laws. Contractor and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. 7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Contractor and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. 7.4 Licenses and Permits. Contractor represents and warrants to City that Contractor 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. Contractor represents and warrants to City that Contractor and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of Contract Services Agreement between December 20, 2016 City of Dublin and SF Art Conservation Page 8 of 11 this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Contractor and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. 7.5 Nondiscrimination and Equal Opportunity. Contractor 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 Contractor under this Agreement. Contractor 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, including but not limited to the satisfaction of any positive obligations required of Contractor thereby. Contractor shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Contractor. Contractor may cancel this Agreement upon 30 days’ written notice to City and shall include in such notice the reasons for cancellation. In the event of termination, Contractor shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Contractor delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Contractor or prepared by or for Contractor or the City in connection with this Agreement. 8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Contractor understands and agrees that, if City grants such an extension, City shall have no obligation to provide Contractor with compensation beyond the maximum amount provided for in this Agreement. 8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 8.4 Assignment and Subcontracting. City and Contractor recognize and agree that this Agreement contemplates personal performance by Contractor and is based upon a determination of Contractor’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 Contractor. Contractor may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Contractor 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. Contract Services Agreement between December 20, 2016 City of Dublin and SF Art Conservation Page 9 of 11 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Contractor shall survive the termination of this Agreement. 8.6 Options upon Breach by Contractor. If Contractor materially breaches any of the terms of this Agreement, City’s remedies shall include, but not be limited to, the following: 8.6.1 Immediately terminate the Agreement; 8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Contractor pursuant to this Agreement; 8.6.3 Retain a different contractor to complete the work described in Exhibit A not finished by Contractor; or 8.6.4 Charge Contractor 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 Contractor pursuant to Section 2 if Contractor had completed the work. Section 9. MISCELLANEOUS PROVISIONS. 9.1 Attorneys’ Fees. 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. 9.2 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 or in the United States District Court for the Northern District of California. 9.3 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. 9.4 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. 9.5 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. 9.6 Use of Recycled Products. Contractor 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. 9.7 Conflict of Interest. Contractor may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Contractor in a “conflict of interest,” as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq. Contract Services Agreement between December 20, 2016 City of Dublin and SF Art Conservation Page 10 of 11 Contractor 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. Contractor 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 Contractor was an employee, agent, appointee, or official of the City in the previous twelve months, Contractor warrants that it did not participate in any manner in the forming of this Agreement. Contractor understands that, if this Agreement is made in violation of Government Code §1090 et. seq., the entire Agreement is void and Contractor will not be entitled to any compensation for services performed pursuant to this Agreement, and Contractor will be required to reimburse the City for any sums paid to the Contractor. Contractor 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. Principals and those performing work for City of Dublin may be required to submit a California Fair Political Practices Commission (FPPC) Form 700: Statement of Economic Interests documenting potential financial conflicts of interest. For additional information, proposers should refer to the FPPC website at www.fppc.ca.gov/index.php?id=500. 9.8 Solicitation. Contractor agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials. 9.9 Contract Administration. This Agreement shall be administered by the City Manager ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 9.10 Notices. Any written notice to Contractor shall be sent to: SF Art Conservation Director 1189 Tennessee Street #103 San Francisco, CA 94107 Any written notice to City shall be sent to: The City of Dublin City Manager 100 Civic Plaza Dublin, CA 94568 [this space is intentionally left blank] Contract Services Agreement between December 20, 2016 City of Dublin and SF Art Conservation Page 11 of 11 9.11 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibits A-D, represents the entire and integrated agreement between City and Contractor and supersedes all prior negotiations, representations, or agreements, either written or oral. IN WITNESS HEREOF, the parties have caused their authorized representatives to execute this Agreement on the [Date] day of [Month] , 20[Year] . CITY OF DUBLIN SF ART CONSERVATION ____________________________ ______________________________ Christopher L. Foss, City Manager Rowan Geiger, Director Attest: ____________________________ Caroline Soto, City Clerk Approved as to Form: ____________________________ John Bakker, City Attorney Contract Services Agreement between December 20, 2016 City of Dublin and SF Art Conservation Page 1 of 1 EXHIBIT A SCOPE OF SERVICES Attached is the Contractor’s proposal. Scope of Services will include: • Preliminary planning meeting with Cultural Arts & Heritage Manager to establish schedule/goals for repairs and maintenance during this calendar year and discuss proposed new works. • Site visit of entire collection by director and preservation team, with Cultural Arts & Heritage Manager • Cleaning and maintenance of artwork in permanent collection. Due to budget and time constraints and the amount of deferred maintenance necessary, the Contractor will not be able to address every work in the collection during this contract period. Works will be prioritized and tentatively scheduled during a planning meeting between the Contractor’s director and City’s Cultural Arts and Heritage Manager. The schedule may be adjusted should vandalism or damage require immediate attention. Written authorization from City of Dublin Cultural Arts and Heritage Manager to proceed is required before work on any piece begins.) • Site visits with artists during installation of new works: “Spirit of Alamilla Springs” and “Elatus,” both Spring 2017. • Spring Quarterly Meeting to review deferred maintenance progress made during this fiscal year and make specific recommendations for projects to be addressed during Fiscal Year 2017-18. Contract Services Agreement between December 20, 2016 City of Dublin and SF Art Conservation Page 1 of 5 EXHIBIT B TASK ORDER Contract Services Agreement between December 20, 2016 City of Dublin and SF Art Conservation Page 2 of 5 EXHIBIT C COMPENSATION SCHEDULE Contractor’s services, hourly rates and charges are indicated below. Contractor will provide a time/materials estimate for each job prior to beginning work. Written authorization from City of Dublin Cultural Arts and Heritage Manager to proceed is required before any work begins. Tasks Hours Personnel Hourly Rate Total Cleaning and Conservation of Permanent Collection, including travel time from San Francisco 350 350 Conservator Technician $110 $85 $38,500 $29,750 Site Visit with Preservation Team 8 Director $150 $1,200 4 Planning Meetings with City Staff, Artists including travel time from San Francisco 16 Director $150 $2400 Emergency Call- outs, including travel time from San Francisco 24 Conservator Technician $110 $85 $2,400 $1,800 Research / Supervision of New Works 16 Director $150 $2,400 Reports, photo documentation 35 Conservator $110 $3,850 Trip Charge from San Francisco (Gas,tolls) 40 $60 per round trip $2,400 Cleaning Materials $2,000 $86,700 Contract Services Agreement between December 20, 2016 City of Dublin and SF Art Conservation Page 3 of 5 EXHIBIT D PUBLIC WORKS REQUIREMENTS A “Public Work”, as defined by the California Labor Code, is the “Construction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds, except work done directly by any public utility company pursuant to order of the Public Utilities Commission or other public authority. For purposes of this paragraph, "construction" includes work performed during the design and preconstruction phases of construction, including, but not limited to, inspection and land surveying work, and work performed during the post construction phases of construction, including, but not limited to, all cleanup work at the jobsite.” If you have questions regarding whether the work set forth in Exhibit A constitutes a “Public Work,” please contact the City Attorney’s office. I. HOURS OF WORK: a. In accordance with California Labor Code Section 1810, eight (8) hours of labor in performance of the services described in Exhibit A shall constitute a legal day’s work under this contract. b. In accordance with California Labor Code Section 1811, the time of service of any worker employed in performance of the services described in Exhibit A is limited to eight (8) hours during any one (1) calendar day, and forty (40) hours during any one calendar week, except in accordance with California Labor Code Section 1815, which provides that work in excess of eight (8) hours during any one (1) calendar day and forty (40) hours during any one calendar week is permitted upon compensation for all hours worked in excess of eight (8) hours during any one (1) calendar day and forty (40) hours during any one (1) calendar week at not less than one-and-one-half (1.5) times the basic rate of pay. c. The Conractor and its subcontractors shall forfeit as a penalty to the City twenty five dollars ($25) for each worker employed in the performance of the services described in Exhibit A for each calendar day during which the worker is required or permitted to work more than eight (8) hours in any one (1) calendar day, or more than forty (40) hours in any one (1) calendar week, in violation of the provisions of California Labor Code Section 1810, et seq.. II. WAGES: a. In accordance with California Labor Code Section 1773.2 and 1774,, the Contractor and any subcontractors shall pay not less than the general prevailing wages for each craft or type of work needed for completion of the services described in Exhibit A, as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research. A copy of this publication is on file in the City Public Works Office and shall be made available on request. b. Pursuant to Labor Code Section 1775, Contractor may be subject to a penalty of up to two hundred dollars ($200) per day for each worker engaged in the performance of the services described in Exhibit A that the Contractor or any subcontractor pays less than the specified prevailing wage. The Contractor or subcontractor shall also pay the difference Contract Services Agreement between December 20, 2016 City of Dublin and SF Art Conservation Page 4 of 5 between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate. c. Contractor shall comply with all of the following requirements: i. Contracts between the Contractor and the subcontractor for the performance of part of the services described in Exhibit A shall include a copy of the provisions of California Labor Code Sections 1771, 1775, 1776, 1777.5, 1813, and 1815. ii. The Contractor shall monitor payment of the specified general prevailing rate of per diem wages by the subcontractor by periodic review of the subcontractor’s certified payroll records. iii. Upon becoming aware of a subcontractor’s failure to pay the specified prevailing rate of wages, the Contractor shall diligently take corrective action to halt or rectify the failure, including, but not limited to, retaining sufficient funds due the subcontractor for performance of the services described in Exhibit A. iv. Prior to making final payment to the subcontractor, the Contractor shall obtain an affidavit signed under penalty of perjury from the subcontractor that the subcontractor has paid the specified general prevailing rate of per diem wages for employees engaged in the performance of the services described in Exhibit A and any amounts due pursuant to California Labor Code Section 1813. d. In accordance with California Labor Code Section 1776, the Contractor and each subcontractor engaged in performance of the services described in Exhibit A shall keep accurate payroll records showing the name, address, social security number, work, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed in performance of the services described in Exhibit A. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following: i. The information contained in the payroll record is true and correct. ii. The employer has complied with the requirements of Sections 1771, 1811, and 1815 for any work performed by the employer’s employees on the public works project. The payroll records required pursuant to California Labor Code Section 1776 shall be certified and shall be available for inspection by the City and its authorized representatives, the Division of Labor Standards Enforcement, the Division of Apprenticeship Standards of the Department of Industrial Relations and shall otherwise be available for inspection in accordance with California Labor Code Section 1776. e. In accordance with California Labor Code Section 1777.5, the Contractor, on behalf of the Contractor and any subcontractors engaged in performance of the services described in Contract Services Agreement between December 20, 2016 City of Dublin and SF Art Conservation Page 5 of 5 Exhibit A, shall be responsible for ensuring compliance with California Labor Code Section 1777.5 governing employment and payment of apprentices on public works contracts. . 2741430.2