HomeMy WebLinkAboutItem 4.02 Bray Commons Park Art in the Park
CITY CLERK
File # D[E][Q]QJ-[3]QJ
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: December 5,2006
SUBJECT:
Art in the Parks - Bray Commons Park
Prepared by John Hartnett, Heritage & Cultural Arts Supervisor
ATTACHMENTS:
1. Resolution Approving the Agreement with Dublin Fine Arts
Foundation and Bill Gould
RECOMMENDATION:..0 A AYAdopt Resolution approving Agreement
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FINANCIAL STATEMENT: None
DESCRIPTION: In September of 1993 the City Council gave conceptual approval to
the Dublin Fine Arts Foundation's proposed "Art in the Parks" program. The goal of the "Art in the
Parks" program is to enhance City parks through the placement of artworks appropriate to each park's
history, location, size and use. At the September 19, 2006 meeting of the City Council, the Council
approved the recommended artwork for Bray Commons Park.
An agreement between the City, Dublin Fine Arts Foundation and Artist Bill Gould for the Bray
Commons Park project has been prepared by the City Attorney and is similar to the agreements for
previous Art in the Park projects.
RECOMMENDATION: It is the recommendation of Staff that the City Council adopt the
Resolution approving the agreement with Dublin Fine Arts Foundation and Bill Gould for the Bray
Commons Art in the Parks project.
COpy TO: DFAF, Bill Gould
ITEM NO.
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RESOLUTION NO. - 06
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
APPROVING AN AGREEMENT WITH DUBLIN FINE ARTS FOUNDATION
AND BILL GOULD FOR BRAY COMMONS PARK ART IN THE PARK PROJECT
WHEREAS, in September of 1993 the Dublin City Council gave conceptual approval to the
Dublin Fine Arts Foundation's proposed "Art in the Parks" program; and
WHEREAS, since that time the Foundation has completed commissions in Alamo Creek,
Stagecoach, Mape Memorial, Kolb, Ted Fairfield, Shannon and Emerald Glen Parks; and
WHEREAS, As part of the Adopted 2003-2004 Goals & Objectives the Dublin City Council
approved a request from the Dublin Fine Arts Foundation to commission art for Bray Commons Park; and
WHEREAS, in September of 2006 the Dublin City Council approved the recommended artwork
for Bray Commons Park by Artist Bill Gould; and
WHEREAS, if is necessary to enter into an Agreement with the Dublin Fine Arts Foundation and
Bill Gould to identify the services required and the responsibilities of each party.
NOW, THEREFORE, BE IT RESOLVED that the City of Dublin does hereby approve the
Agreement with the Dublin Fine Arts Foundation and Bill Gould, attached hereto.
PASSED, APPROVED AND ADOPTED this 5th day of December, 2006.
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
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ATTACHMENT 1
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AGREEMENT
THIS AGREEMENT is made and entered into as of the 13th day of November, 2006 by and
between THE DUBLIN FINE ARTS FOUNDATION (hereinafter called the "DFAF"), BILL
GOULD with LIZARD SKIN STUDIOS (hereinafter called the "Artist") and the CITY OF
DUBLIN, a Municipal Corporation (hereinafter called the "City").
WITNESSETH
WHEREAS, DFAF desires to commission and acquire a certain work of art (the"Work")
which has been conceived and designed by the Artist (hereinafter called "Wind, Shade, Light =
Tranquility") to be installed in the Bray Commons Park in Dublin, California; and
WHEREAS, DF AF desires to transfer ownership oftitle to City and City desires to accept
title to the Work, upon installation by Artist, final acceptance thereof by DFAF and City and full
payment therefore by DF AF; and
WHEREAS, the Artist desires to carry out this commission;
NOW, THEREFORE, the parties agree as follows:
1. COMMISSION. DF AF hereby commissions the Artist and the Artist hereby accepts the
commission and agrees to design and oversee the fabrication and installation of the Work which
shall consist of a wind driven kinetic sculpture that will react to the changing environment. It will
be designed with a concrete base supporting multiple 3" in diameter steel stems with steel canopy
forms at the top of the stems containing numerous suspended leaf shapes. The canopies will begin
at 12 feet and extend up to as high as 20 feet. Both the stems and canopy will be covered with a
coating of real copper which will be treated to patina. A maquette of the Work was submitted by
the Artist and approved by the Dublin Fine Arts Committee, on behalf of D F AF, and by the Dublin
City Council, on behalf of the City.
2. THE ARTIST'S SERVICES.
A. The proposal heretofore submitted by the Artist includes a model of the Work (the
"Maquette") and the proposed location of the work (the "Site) as described in No.1 above. DF AF
and the City have approved the Maquette and the Site. The Maquette shall remain the property of
the Artist.
B. The method of installation ofthe Work shall comply with all structural integrity and
safety requirements ofthe City's Public Works Department.
C. Following the signing ofthis Agreement, and at such time as the DF AF's financing is in
place, but no later than January 15,2007, DFAF shall issue a written "Notice to Proceed" to the
Artist which shall authorize the Artist to proceed with the fabrication ofthe Work. Said Notice to
Proceed shall be accompanied by the payment described in Paragraph 3 (A) (1) ofthis Agreement.
The Artist agrees to complete the fabrication and installation of the Work within six months from
the date of receipt of said Notice and payment. The notice to proceed shall be deemed received ten
(10) days after mailing by First Class mail.
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3. FEES.
A. DF AF shall pay to the Artist, as the commission for the Work and the services to be
rendered by the Artist, the sum of $20,000 to be paid in the following installments:
1) 25% ($5,000.00) upon execution of the contract
2) 50% ($10,000.00) upon completion of fabrication
2) 25% ($5,000.00) upon completion and final acceptance by DF AF and the City
B. The commission includes all ofthe Artist's costs and expenses in carrying out its
obligations hereunder including materials, design, installation design, fabrication, transportation
and installation of the Work.
4. RESPONSIBILITIES OF THE PARTIES.
A. The Vlork shall be fabricated and installed by the Artist in conformity with the Maquette
and the Proposal as presented to DF AF and City subject to minor changes as are made necessary by
the materials or the production process or as are deemed necessary or appropriate by the Artist to
carry out the overall design. DF AF and City understand that it may not be possible to create the
Wark precisely as depicted in the Maquette; however, if, during the fabrication process, the Artist
makes significant changes in size, imagery, color, type of mosaic, or other approved elements of
the Work, the Artist will notify DF AF and City in writing and will receive DF AF's and City's
written approval prior to proceeding with changes. A significant change is any change in the scope,
design, color, size, material, texture or location on the Site of the Work which affects installation,
scheduling, Site preparation or maintenance for the v\lork or the concept of the Work as represented
in the Maquette. City's approval may be given by its City Manager or his designee.
B. The Artist will be responsible for arranging, supervising and paying all costs associated
with transporting the Work to the Site.
C. The Artist represents and warrants that the Work, as fabricated and installed, will be free
:from any defects in materials and workmanship, and that the Work is free and clear of any liens or
encumbrances :from any source and of any kind or nature whatsoever. The Artist hereby represents
and warrants that the work as fabricated and installed, including the design and materials, is
suitable to withstand without cracking, chipping, pealing, fading, rusting, or otherwise
deteriorating, the climatic and environmental conditions commonly experienced within and in the
general vicinity of the City of Dublin. Such periodic conditions include but are not limited to
temperature in excess of 100 degrees Fahrenheit and below 32 degrees Fahrenheit, high velocity
winds, heavy rainfall and periods of very low humidity.
The Artist shall guarantee the Work to DF AF and City against all defects in its design,
workmanship and materials for a period of three (3) years following the completion and written
acceptance by DF AF and City of the installation and if any such defects occur in this period, the
Artist agrees to promptly and satisfactorily repair, correct, or replace the defective portion at
.A.rtist's own expense. The final inspection of the Work by DFAF and the City shall take place
within seven (7) days after written request by the Artist. Final completion shall occur upon
correction of all items noted in the final inspection. Upon completion of the installation of the
Work and acceptance thereof by DF AF and City, the Artist shall not be responsible for any damage
inflicted on the Work by any third parties.
Agreement - Art in the Park - Bray Commons
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D. The Artist hereby represents and warrants to DFAF and City that the Work is solely the
result of the artistic and creative effort of the Artist, is original, one of a kind, and does not
knowingly infringe upon any copyright. Notwithstanding the foregoing representation and
warranty, DF AF and City hereby acknowledge that Artist has used in the past and may use in the
future some of the same elements comprising the Work and the Artist reserves the right to use
elements and portions of the Work in other works of art in different configurations.
E. At DF AF's or City's request and expense, the Artist will execute and deliver to DF AF and
City any instruments that DF AF or City may reasonably require to confirm ownership of the Work,
or to enable DFAF or City to dispose of any rights therein. Following the completion of the
installation of the Work, the Artist agrees to sign, on request, photographs of the Work to be
submitted to it by DF AF or City to certify its authenticity.
F. Ifthe installation date is delayed by an event under the control ofDFAF or City, and the
Artist is fully prepared to begin installation of the Work, then DF AF or City shall pay the cost of
storage of the Work and moving the Work to and from the place of storage.
5. FORCE MAJEURE. Any delay in the performance by the Artist shall be excused if such
delay is caused by act ofthe City or DF AF, their agents, contractors, employees or by acts of God,
accident, war, war-like operations, civil commotion, riots, labor disputes, sabotage, governmental
acts, regulations or controls, fire or other casualty. Failure to fulfill contract obligations due to
conditions beyond either party's reasonable control will not be considered a breach of contract,
provided those obligations affected shall be suspended only for the duration of such conditions.
During the existence of any such conditions, both parties shall make reasonable efforts to protect
each other's property, equipment and inventory.
6. RISK OF LOSS. The risk ofloss or damage to the Work shall be borne by the Artist until
the Work has been completed and installed, and the Artist shall take such measures as are necessary
to insure the Work for the benefit of DF AF and City against loss or damage until final acceptance
of the Work by DFAF and the City, which shall not exceed thirty (30) days after final completion.
7. INSURANCE. The Artist agrees to procure at Artist's expense and to maintain through
fabrication, transportation, installation, and transfer of ownership title of the Work, insurance
against claims for injuries to persons or damages to property which may arise from or in connection
with the performance of the Work by the Artist or their agents, employees, representatives or
subcontractors.
A. Minimum Scope ofInsurance. Coverage shall be at least as broad as:
(I) Insurance Services Office Form Number GL 0002 (Ed. 1/73) covering comprehensive
General Liability and Insurance Services Offices Form Number GL 0404 covering Broad Form
Comprehensive General Liability; or Insurance Services Office Commercial General Liability
coverage ("occurrence Form CG 0001").
(2) Insurance Services Office Form Number CA 0001 (Ed. 1/78) covering Automobile
Liability, code 1 "any auto" and endorsement CA 0025.
B. Minimum Limits ofInsurance. Artist shall maintain limits no less than:
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(1) General Liability: $1,000,000 combined single limit per occurrence for bodily injury,
personal injury and property damage. If commercial General Liability Insurance or other form with
a general aggregate limit is used, either the general aggregate limit shall apply separately to this
project/location or the general aggregate limit shall be twice the required occurrence limit.
(2) Automobile Liability: $300,000 combined single limit per accident for bodily injury
and property damage.
C. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions in
excess of $5,000.00 must be declared to and approved by the City. At the option of the City, either
the insurer shall reduce or eliminate such deductibles or self-insured retentions in excess of
$5,000.00 as respects the City, its officers, officials and employees; or the Artist shall procure a
bond guaranteeing payment oflosses and related investigations, claim administration and defense
expenses in excess of$5,000.00.
D. Other Insurance Provisions. The policies are to contain or be endorsed to contain the
following provisions:
(I) All Coverage - Each insurance policy required by this clause shall be endorsed to state
that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in
limits except after thirty (30) days' prior written notice by certified mail, return receipt requested,
has been given to the City. Insurance under 7 (A) and (B) shall be evidenced by certificates
provided within ten (10) days of the notice to proceed. Insurance under 7 (D) 1 shall be provided
ten (10) days prior to shipment of the work
E. Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no
less than A:VII.
F. Verification of Coverage. The Artist shall furnish City and DFAF with certificates of
insurance and with original endorsements effecting coverage required by this clause. The
certificates and endorsements for each insurance policy are to be signed by a person authorized by
that insurer to bind coverage on its behalf. The certificates and endorsements are to be received and
approved by the City and DF AF before work commences. The City and DF AF reserve the right to
require complete, certified copies of all required insurance policies at any time.
G. Subcontractors. All coverage for subcontractors working on site shall be subject to all of
the requirements stated herein. Artist shall assure that all subcontractors working on site shall
furnish separate certificates and endorsements, and name the City and DF AF as additional insureds.
All coverage for subcontractors shall be subject to all of the requirements stated herein.
H. Upon acceptance and transfer of title to the City, the City shall become responsible for
such insurance, as City may deem necessary.
8. RIGHTS OF THE PARTIES.
A. DF AF and City shall have the right to inspect the Work at the Artist's studio(s) during the
fabrication of the Work at dates and times mutually agreed upon between t1?-e parties during regular
business hours and at reasonable intervals.
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B. The Artist retains all rights under the Copyright Act of 1976 and all other rights in and to
the work, except ownership and possession and except as such rights are limited by this paragraph.
The Artist grants to DF AF and City and their assigns an irrevocable right and license to make two-
dimensional reproductions of the Work for non-commercial purposes including, but not limited to:
(i) use in advertising, brochures, media publicity and catalogs or other similar publications; (ii) use
in promotional materials; (iii) reproductions for use in non-profit fundraising activities, but in such
uses, the Artist shall have the right of aesthetic approval of the image which approval shall not be
unreasonably withheld, provided that these rights are exercised in a tasteful and professional
manner. Where the Artist exercises a right of approval, such approval shall be deemed to have been
given ifthe City receives no response after 21 days' written notice.
Vlhenever the City, the DF AF and/or their assigns makes a two-dimensional reproduction of
the Work, for any of the aforementioned approved purposes, the party making the reproduction
shall provide the Artist with notice of its intent to make the reproduction and with copies of the
reproduced images of the Work.
C. DF AF and City shall use their best efforts to give a credit in any publication, substantially
in the following form: "an original work by Bill Gould, commissioned by Dublin Fine Arts
Foundation, Bray Commons Park, Dublin, California". The Artist shall use his best efforts to give a
credit reading substantially "an original work by Bill Gould, commissioned by Dublin Fine Arts
Foundation for the Bray Commons Park, Dublin, California" in any publication or public showing
under his control of any two-dimensional reproductions of the Work.
D. City agrees to place a small plaque near the Work which describes the Work and identifies
Bill Gould as the artist who created the Work.
E. DF AF and City agree that they will not intentionally damage, alter, relocate, modify or
change the Work in any way, and will take all reasonable precaution in order that it not be
damaged, altered or changed by anyone in any manner. In the event that the Work is damaged,
altered, modified, changed or otherwise in need of restoration, DF AF and City will make every
effort to arrange with the Artist for the restoration and to request the Artist's supervision of
restoration of the Work.
F. The parties acknowledge that the Work is a site-specific work and in no event may the
Work be exhibited or lent to others to exhibit separate from the Site without the prior written
consent of the Artist, which consent shall be based upon the opinion of the Artist, in her sole
discretion, as to whether the Work can exist as a work of art by them in the proposed new location.
G. Should the City decide to sell the Work, the Artist will have the first right of refusal to
purchase the Work upon the same terms as offered to others.
H. If, for any reason, the City ever intends to destroy the Work, it shall give written notice to
the Artist of its intention and shall give the Artist, collectively or individually, ninety (90) days to
recover the Work, at the sole cost of the Artist. Within thirty (30) days after receipt of notice, the
Artist shall notify City whether or not he intends to recover the Work. If no notice is received from
the Artist within said thirty (30) day period, he shall be deemed to have waived his right to recover
the Work and City may proceed to destroy it. Upon recovery of the Work by the Artist, title shall
revert to the Artist's ownership and the costs of recovery between themselves.
Agreement - Art in the Park - Bray Commons
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1. The Artist shall retain the right to claim authorship of the Work. In the event that any part
ofthe Work is materially damaged or altered in any manner, neither DFAF nor City shall continue
to represent the Work to be the work of the Artist without written consent.
9. MAINTENA.NCE.
A. The Artist will provide the City with complete information on appropriate care and
maintenance of the Work, including specifications on any surface finishes and expected frequency
of application and any other information pertinent to the proper care and maintenance of the Work.
The Artist will also provide information on interior structure and all fabrication methods and
Materials pertinent to the possibility oflater repair or restoration by City.
B. Following acceptance of the Work by the City, the City will be responsible for the
maintenance of the Work, and agrees to take all reasonable precautions to protect against damage
or destruction.
C. During the lifetime of the Artist and to the extent practicable, City shall notify the Artist
promptly in the event of the need for any major maintenance ar restoration services, and agrees to
give the Artist a reasonable opportunity either to perform such work or to supervise or consult in its
performance for reasonable compensation. If the Artist chooses not to do this and refuses to
approve repair and restoration by anyone other than themselves or their designated representative,
City may proceed with the work and the Artist will have the right to have their names removed
from the Wark. If the Artist chooses not to perform or to approve repair and restoration by anyone
other than himself or his designated representative, City may nevertheless proceed, and the Artist
will have the right to have his name removed from the Work.
D. Following acceptance of the Work by the City, the Artist agrees to give both written and
verbal advice to the City at no charge as to how to deal with any m&intenance or restoration
problems that may arise with respect to the Work.
10. O\VNERSHIP. Title ofthe Work will remain in the possession of the Artist until the
Work has been installed and accepted in writing by DF AF and City ("final acceptance") and the
Artist has been paid in full. Artist will then transfer their right of ownership (in writing) to DF AF
who will immediately in turn transfer its title and Artist's right of ownership (in writing) to City,
which title and right shall be accepted by resolution of the City Council. In the event of termination
of this Agreement pursuant to Subparagraph 12 (A) (subject to Artist's compliance with the
provisions of said paragraph) or Subparagraph 12 (B), all rights of ownership in the Work will
revert to the Artist who will have the sole right to complete, exhibit and sell the Work and any
preliminary designs for it.
Notwithstanding anything to the contrary herein, the Artist will retain all right of ownership
ofthe preliminary design, all incidental works made in the creation of the Work, and all copies and
reproductions thereof.
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11. CITY ASSUMPTION OF RIGHTS AND OBLIGATIONS. Upon transfer by DFAF of
ownership oftitle ofthe Work to City, City shall assume all rights and obligations of DF AF as set
forth in this Agreement, excepting any obligations whatsoever related to the funding of or payment
for the Work or any claims, suits, costs, damages or liabilities of any kind whatsoever associated
with the funding or payment of the Work.
12. TERMINATION. This Agreement may be terminated under the following
circumstances:
A. If the Artist fails to commence the installation of the Work on the installation date or to
complete the installation within a reasonable time thereafter (not to exceed thirty (30) days) and
such delay or failure to complete is not due to causes excusable by the terms of this Agreement,
DF AF may send written notice of default to the Artist setting forth a stated time in which to cure,
which time shall not be less than thirty (30) days, and if the Artist fails to cure and such failure is
not excusable by the terms of this Agreement, then DFAF may declare this Agreement terminated
and shall have the right to recover back all monies paid to the Artist hereunder.
B. The Artist will have the right to terminate this Agreement if, pursuant to Paragraph 3,
DFAF is more than sixty (60) days late in making any payment.
C. If the Artist is unable to complete the Work or to commence the installation on the
installation date because of illness or disability or because of events beyond the control of the
Artist, as provided herein, the time to complete the Work and its installation shall be extended by
the length of such interruption or interruptions, provided that in the aggregate the installation date is
not delayed more than six (6) months.
13. APPLICABLE LAW. This Agreement constitutes the entire understanding between the
parties with respect to the subject matter herein and no modification or amendment of any of its
provisions shall be valid unless in writing and signed by all parties. This Agreement is personal in
nature and may not be assigned by the Artist. This contract shall be governed by the laws of the
State of California.
14. NOTICE. All notices herein required shall be in writing, by certified mail, return receipt
requested, and shall be served on the parties as follows:
To DFAF at:
P. O. Box 2912, Dublin, California 94568
To City at:
100 Civic Plaza, Dublin, California 94568
To the Artist at:
394-A Umbarger Road, San Jose, Ca. 95111
Copies of all notices sent by the Artist, City or DF AF shall also be sent to Lynne Baer, 1020
Union St., No.2, San Francisco, California 94133.
Any of the above addresses may be changed by notice sent to the other party as herein
provided.
15. BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of
the heirs, executors and administrators, successors and assigns of the parties.
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16. ARBITRATION. All disputes arising out ofthis Agreement will be submitted to final and
binding arbitration. The arbitrator will be selected in accordance with the rules of the Arts
Arbitration and Mediation Services, a program of California Lawyers for the Arts. If such service is
not available, any disputes will be submitted to arbitration in accordance with the rules of the
American Arbitration Association (Association). The parties shall jointly agree on an arbitrator.
The costs of arbitration shall be borne equally by the parties to the arbitration. In no event shall any
Monetary award be made against the City,
IN WITNESS WHEREOF, the parties hereto have set their hands and seals to this Agreement on
the date first written.
DUBLIN FINE_AR~~~_._ THE CITY OF DUBLIN
BY~ By:
ARTIST MAYOR '
ATTEST:
By:~?kfb ~1zf-
DF AF - PRESIDENT '
By:
CITY CLERK
By: f'?*r>t0 .rll../o"'::,{"-\~ 'T#.A('
ATTEST:
By:
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