HomeMy WebLinkAboutItem 4.03 AlamoCreek&StgchParkArt (2)
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CITY CLERK
File # D~[Q]J(l]-[3l[Q]
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AGENDA STATEMENT
CITY COUNCIL MEETING DATE: May 14,1996
SUBJECT:
Art in the Parks - Request for Matching Grant for Alamo Creek Park
and Stagecoach Park Projects. Report Prepared by: Diane Lowart,
Parks & Community Services Director
EXlllBITS ATTACHED:
A. Correspondence From Linda Jeffery, President, DFAF
B. Alamo Creek Park Agreement
RECOMMENDATION: ,..,t"
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FINANCIAL STATEMENT:
1. Authorize $7,500 Payment to Dublin Fine Arts Foundation
2. Authorize Mayor to Execute Agreement
Sufficient Funds are Available in the Fiscal Year 1995-96 Budget
DESCRIPTION: As part of the Fiscal Year 1995-96 Budget, the City Council
approved a Higher Service Level in the amount of $1 0,000 for the "Art in the Parks" program. As per the
request from the Dublin Fine Arts Foundation, the $10,000 grant would be part of a three-for-one
matching grant.
a::orrespondence has been received from Linda Jeffery, President of the Dublin Fine Arts Foundation,
'Wfequesting $7,500 of the $10,000 grant. The foundation has now raised approximately two-thirds of the
funds for the "Art in the Parks" program ($22,500) and would like to begin the actual commissioning of
the works for Stagecoach Park and Alamo Creek Park.
Staff recommends that the City Council approve the request and authorize a payment to the Dublin Fine
Arts Foundation in the amount of $7,500. Additionally, it is recommended that the City Council
authorize the Mayor to execute the attached agreement between the City of Dublin, the Dublin Fine Arts
Foundation and Alan Counihan, the artist for the Alamo Creek Park project. The agreement has been
reviewed by the City Attorney and is similar to the agreements used for "Gaia" and "Gail", the City's
other two permanent pieces of art which were commissioned by the Foundation.
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.. COPIES TO: Dublin Fine Arts Foundation
ITEM No.M
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April 29, 1996
Ms. Diane Lowart
Director, Parks and Recreation
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Dear Diane;
On behalf of the Foundation, I am happy to report that we are progressing in our
fundraising efforts for our "Art in the Parks" project. We have raised approximately twowthirds of
our goal and would like to begin the actual commissioning of the works for Stagecoach Park and
Alamo Creek Park. At this time, we request from the City part of our matching grant so we may
begin this process.
The following is a breakdown of our fund raising efforts:
Foundations
Businesses
Individuals
8,000
10,250
4,250.
$22,500.
Total Contributions:
The Foundation requests $7,500. to match the funds for Stagecoach and Alamo Creek Parks as
per our agreement.
We appreciate the continued support of the City for our programs and look forward to
placing the works in the Parks this summer.
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AG.B.EE.M.ENI
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THIS AGREEMENT is made and entered into as of the
day of by and
between THE DUBLIN FINE ARTS FOUNDATION (hereinafter called the "D FA") ,
Alan Counihan (hereinafter called the "Artist") and the CITY OF DUBLIN, a Municipal
Corporation (hereinafter called the "City").
WIT N E SSE T H:
WHEREAS, DFA desires to commission and acquire a certain work of art (the
"Work") which has been conceived and designed by Alan Counihan (hereinafter
called "Counihan") to be installed in Alamo Creek Park in Dublin, California; and
WHEREAS, DFA desires to transfer ownership of title to City and City desires
to accept title to the Work, upon installation by Artist, final acceptance thereof by
DFA and City and full payment therefore by DFA; and
WHEREAS, the Artist desires to carry out this commission;
NOW, THEREFORE, the parties agree as follows:
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1. COMMISSION. DFA 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 two elements: a stone slab out of
which the "pool," measuring 8 feet by 7 feet with a polished surface, will be carved to
resemble ripples of a pool of water; the pool will be surrounded by four stone "seats"
inscribed with spiraling Celtic and Indian weave patterns previously submitted by the
Artist and approved by the Dublin Fine Arts Committee, on behalf of DFA, 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") at the base
of the slope below the parking lot. DFA and the City have approved the Maquette
and the Site. The Maquette shall remain the property of the Artist.
8. The method of installation of the Work shall comply with all structural
integrity and safety requirements of the engineers retained by DFA and the City's
Public Works Department. .
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C. Following the signing of this Agreement, and at such time as the DFA's
financing is in place, but no later than June 30, 1996, DFA shall issue a written
"Notice to Proceed" to the Artist which shall authorize the Artist to proceed with the
fabrication of the Work. Said Notice to Proceed shall be accompanied by the
payment described in Paragraph 3 (A) (2) of this Agreement. The Artist agrees to
complete the fabrication and installation of the Work within six months from the date
of receipt of said Notice and payment. The notice to proceed shall be deemed
received ten (10) days after mailing by First Class mail.
3. FEES.
A. DFA shall pay to the Artist, as the purchase price for the Work and the
services to be rendered by the Artist, the sum of $20,000 to be paid in the following
installments:
· 25 % upon execution of the contract
. 25 % upon delivery of all materials to the Site
. 25% upon notice from the Artist that the work is finished
. 25% upon final acceptance by the City
B. The purchase price includes all of the Artist's costs and expenses in
carrying out its obligations hereunder including materials, design, installation design,
fabrication, transportation and installation of the Work.
4. RESPONSIBILITIES OF THE PARTIES.
A. The Work shall be fabricated and installed by the Artist in conformity
with the Maquette and the Proposal as presented to DFA 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. DFA
and City understand that it may riot be possible to create the Work precisely as
depicted in the Maquette; however, if, during the fabrication process, Artist makes
significant changes in size, imagery, color, type of mosaic, or other approved
elements of the Work, Artist will notify DFA and City in writing and will receive DFA's
and City's written approval prior to proceeding with changes. A significant change is
any change in the scope, design, color, size, material, texture or location on the Site
of the Work which affects installation, scheduling, Site preparation or maintenance
for the Work or the concept of the Work as represented in the Maquette. City's
approval may be 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.
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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
climactic 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 DFA 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 DFA and City of the installation and if any
such defects occur in this period, the Artist agrees to promptly and satisfactorily
repair, correct, or replace the defective portion at the Artist's own expense. The final
inspection of the Work by DFA 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 DFA and City, the Artist shall not be responsible for any
damage inflicted on the Work by any third parties, or resulting from any defects in the .
technical and working drawings or engineering instructions and drawings provided by
engineers retained by DFA and City.
D. The Artist hereby represents and warrants to DFA 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, DFA 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 DFA's or City's request and expense, the Artist will execute and
deliver to DFA and City any instruments that DFA or City may reasonably require to
confirm ownership of the Work, or to enable DFA 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 DFA or City to
certify its authenticity.
F. If the installation date is delayed by an event under the control of DFA
or City, and the Artist is fully prepared to begin installation of the Work, then DFA or
City shall pay the cost of storage of the Work and moving the Work to and from the
place of storage.
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5, FORCE MAJEURE. Any delay in the performance by the Artist shall
be excused if such delay is caused by act of the City or DFA, their agents,
contractors, employees or by acts of God, accident, war, war-like operations, civil
commotion, riots, labor disputes, sabotage, governmental acts, regulations or
controls, fire or other casualty. Failure to fulfill contract obligations due to conditions
beyond either party's reasonable control will not be considered a breach of contract,
provided those obligations affected shall be suspended only for the duration of such
conditions. During the existence of any such conditions, both parties shall make
reasonable efforts to protect each other's property, equipment and inventory.
6. RISK OF LOSS. The risk of loss or damage to the Work shall be borne
by the Artist until the Work has been completed and installed, and the Artist shall
take such measures as are necessary to insure the Work for the benefit of DFA and
City against loss or damage until final acceptance of the Work by DFA 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 his agents, employees, representatives or subcontractors.
A.
Minimum Scope of Insurance. Coverage shall be at least as broad
as:
(1) Insurance Services Office Form Number GL 0002 (Ed. 1/73)
covering comprehensive General Liability and Insurance Services
Offices Form Number GL 0404 covering Broad Form Comprehensive
General Liability; or Insurance Services Office Commercial General
Liability coverage ("occurrence Form CG 0001).
(2) Insurance Services Office Form Number CA 0001 (Ed. 1/78)
covering Automobile Liability, code 1 "any auto" and endorsement CA
0025.
B. Minimum Limits of Insurance. Artist shall maintain limits no less
than:
(1) General Liability: $1,000,000 combined single limit per
occurrence for bodily 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 projecUlocation or the general aggregate limit shall be
twice the required occurrence limit.
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(2) Automobile Liability: $300,000 combined single limit per
accident for bodily injury and property damage.
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C. Deductibles and Self-Insured Retentions. Any deductibles or self-
insured retentions in excess of $5,000.00 must be declared to and approved by the
City. At the option of the City, either the insurer shall reduce or eliminate such
deductibles or self-insured retentions in excess of $5,000.00 as respects the City, its
officers, officials and employees; or the Artist shall procure a bond guaranteeing
payment of losses and related investigations, claim administration and defense
expenses in excess of $5,000.00.
D. Other Insurance Provisions. The policies are to contain or be
endorsed to contain the following provisions:
(1) Workers' Compensation and Employer's Liability coverage (on-
site subcontractors only).
The insurer shall agree to waive all rights of subrogation against
the City, OFA, their officers, officials, employees and volunteers for
losses arising from work performed by the Artist for the City.
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(2) 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 (8) shall be evidenced by certificates provided within ten (10) days
of the notice to proceed. Insurance under 7 (0) 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 AVII.
F. Verification of Coverage. Artist shall furnish City and OFA 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 OFA
before work commences. The City and DFA 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
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subcontractors working on site shall furnish separate certificates and endorsements,
and name the City and DFA 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. DFA and City shall have the right to inspect the Work at the Artist's
studio during the fabrication of the Work at dates and times mutually agreed upon
between the parties during regular business hours and at reasonable intervals.
B. The Artist retains all rights under the Copyright Act of 1976 and all other
rights in and to the work, except ownership and possession and except as such
rights are limited by this paragraph. The Artist grants to DFA 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 if the City
receives no response after 21 days' written notice.
C. DFA and City shall use their best efforts to give a credit in any
publication, substantially in the following form: "(c)
(date of installation)". The Artist shall use his best efforts to give a credit reading
substantially "an original work by Alan Counihan, commissioned by the Dublin Fine
Arts Foundation for the Alamo Creek Park, Dublin, California" in any publication or
public showing under his control of any two-dimensional reproductions of the Work.
D. City agrees to place at DFA expense a small plaque near the Work
which describes the Work and identifies Counihan as the Artist who created the
Work.
E. DFA 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, DFA and City will make every effort to arrange with
the Artist for the restoration and to request the Artist's supeNision of restoration of
the Work.
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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 his sole discretion, as to whether the Work can exist as a
work of art by him in the proposed new location.
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G. Should the City decide to sell the Work, the Artist will have the first right
of refusal to repurchase the Work upon the same terms as offered to others.
H. If, for any reason, City ever intends to destroy the Work, it shall give
written notice to the Artist of its intention and shall give the Artist ninety (90) days to
recover the Work, at his sole cost. 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.
I. The Artist shall retain the right to claim authorship of the Work. In the
event that any part of the Work is materially damaged or altered in any manner,
neither DFA nor City shall continue to represent the Work to be the work of the Artist .
without the written consent of the Artist.
9. MAINTENANCE.
A. The Artist will provide the City with complete information on appropriate
care and maintenance of the Work, including specifications on any surface finishes
and expected frequency of application and any other information pertinent to the
proper care and maintenance of the Work. The Artist will also provide information on
interior structure and all fabrication methods and materials pertinent to the possibility
of later repai~, or restoration to City. ,
B. Following acceptance of the Work by the City, the City will be
responsible for the maintenance of the Work, and agrees to take all reasonable
precautions to protect against damage or destruction.
C. During the lifetime of the Artist and to the extent practicable, City shall
notify the Artist promptly in the event of the need for any major maintenance or
restoration services, and agrees to give the Artist a reasonable opportunity either to
perform such work or 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 himself or his designated representative, City may .
proceed with the work and the Artist will have the right to have his name removed
from the Work.
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D. Following acceptance of the Work by the City, the Artist agrees to give
both written and verbal advice to the City at no charge as to how to deal with any
maintenance or restoration problems that may arise with respect to the Work.
10. OWNERSHIP. Title of the Work will remain in the possession of the
Artist until the Work has been installed and accepted in writing by DFA and City
("final acceptance") and the Artist has been paid in full. Artist will then transfer his
right of ownership (in writing) to DFA 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 of the preliminary design, all incidental works made in the creation of the
Work, and all copies and reproductions thereof.
11. CITY ASSUMPTION OF RIGHTS AND OBLIGATIONS. Upon transfer
by DFA of ownership of title of the Work to City, City shall assume all rights and
obligations of DFA 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, DFA 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 DFA 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, DFA is more than sixty (60) days late in making any payment.
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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 DFA at:
P. O. Box 2912
Dublin, California 94568
To City at:
City Manager's Office
100 Civic Plaza
Dublin, California 94568
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To the Artist at:
523 Darwin Street
Santa Cruz, California 95062
Copies of all notices sent by the Artist, City or DFA 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 proyided.
15. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the heirs, executors and administrators, successors and assigns of the
parties.
16. ARBITRATION. All disputes arising out of this Agreement will' be
submitted to final and binding arbitration. The arbitrator will be selected in
accordance with the rules of the Arts Arbitration and Mediation Services, a program
of California Lawyers for the Arts. If such service is not available, any disputes will
be submitted to arbitration in accordance with the rules of the American Arbitration
Association (Association). The parties shall jointly agree on an arbitrator. The costs .
of arbitration shall be borne equally by the parties to the arbitration. In no event shall
any monetary award be made against the City.
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals to
this Agreement on the date first written.
THE DUBLIN FINE ARTS FOUNDATION
THE CITY OF DUBLIN
By:~/7112rf
By:
ATTEST:
ATTEST:
By:
By:
ARTIST
By:
w~ C~~- I 2-( 2-Cc(~'-S-
Alan Counihan
ATTEST:
By: +cJ~ S/62?/fS'
ALAN COUNIHAN
SCULPTOR 523 Darwin St, Santa Cruz, CA 95062, USA.
Coolbagh, Clashmore, Co Waterford, Ireland.
ph/fax: 408-458.9622
ph: 024-96477
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Lynne Baer,
Dublin Fine Arts Foundation,
1020 Union Street,# 2,
San Francisco,CA 94133.
December 5 1995
Dear Lynne,
Following our conversation regarding the contract you have asked me to sign
for the creation and installation of my proposed sculpture ''The Black Pool" in Alamo
Creek Park in the City of Dublin, California there are two matters to which I would like
to draw your attention.
First of all it will not be possible for me to work on this project according to the
payment schedule outlined in the contract. Given that the costs of the materials alone
before they ever reach my studio will be over 50% of total bUdget I think it only
reasonable to request that we work according to my original payment proposal of :
50% upon commencement & contract;
25% upon completion of work in studio;
25% upon acceptance by commissioners.
I think you will agree, upon perusal of the enclosed budget (revised 11/95),that
this is not an unreasonable request and will barely keep me abreast of costs. I do not
expect to get rich on this commission.
Secondly, with regard to artist's liability insurance, I am forwarding some pages
from my present policy which has coverage to $500,000. Although initially they also
sought coverage of a million dollars both the County, and the City, of Santa Cruz
agreed coverage of $500,000 for the commissions I carried out for them with the latter
having a considerably larger budget and potential risk factor than the commission in
question. Again, as I am working to a tight budget, I would appreciate being able to
work within the limits of my present policy coverage. Let me know if you need further
details.
I would also be grateful for the return of my maquette so I may work from it and I
would also like to have the original vellums of the drawings so as I can make copies
from them. Drawings and a copy of the written proposal will be returned to you before
commencement of the work.
I leave to work on a commission in Ireland on 1/1/96 with my return scheduled
for 3/1/96. I would love to have this contract sorted out before my departure and to be
able to begin work on this commission for Alamo Creek Park upon my return. I think it
will be a beautiful piece.
I'll take the opportunity of wishing you early season's Greetings and I look
forward to hearing from you soon.
sincerely,
\.lLQ (1----.
ALAN COUNIHAN
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"The Black Pool"
A site-specific sculpture for Alamo Creek Park
Dublin, California.
BUDGET.
J20,000.
Stone, pool slabs :
(@ $95 per cu ft)
Boulders:
(@ $45 per cu ft)
Sawn bases on boulders:
(x5 @ $300 ea)
Sawn tops on boulders:
(x4 @ $300 ea)
Transport to studio:
(Total quarry costs: $10,700.)
Stone carving:
Sandblasting :
(Total studio costs : $7000.)
Foundation:
Transport/cranelinstallation :
Insurance:
M iscellaneousltravel:
TOTAL
. (revised 11/95)
4000.
3500.
1500.
1200.
500.
6000.
1000.
750.
1250.
200.
100.
20,000