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HomeMy WebLinkAboutReso 125-21 Approving the First Amendment to the Agreement with Sculptural Solutions for the Public Reso. No. 125-21, Item 4.3, Adopted 11/02/2021 Page 1 of 1 RESOLUTION NO. 125 - 21 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING THE FIRST AMENDMENT TO THE AGREEMENT WITH SCULPTURAL SOLUTIONS FOR THE PUBLIC ART PROJECT AT DON BIDDLE COMMUNITY PARK WHEREAS, the 2020-2025 Capital Improvement Program includes a project to design, fabricate and install permanent public art at Don Biddle Community Park; and WHEREAS, the public art proposal by Sculptural Solutions was recommended by the Veterans Art Selection Committee, Heritage and Cultural Arts Commission, and Parks and Community Services Commission; and WHEREAS, at its March 20, 2018 meeting, the City Council reviewed the artist’s proposal and voted to approve the art project; and WHEREAS, following approval by the City Council at its May 15, 2018 meeting, the City entered into a Public Art Agreement with Sculptural Solutions; and WHEREAS, delays not directly associated with the public art agreement have increased costs above what was originally proposed and have become a financial burden on Sculptural Solutions; and WHEREAS, Staff and Sculptural Solutions desire to amend the Public Art Agreement to increase the not-to-exceed compensation amount by $50,000, from $500,000 to $550,000, due to increased costs associated with project delays; and WHEREAS, in consultation with Sculptural Solutions, Staff has prepared an agreement amendment that addresses the modified terms and conditions of the public art project. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve and authorize the City Manager to execute the First Amendment to the Public Art Agreement with Sculptural Solutions, attached hereto as Exhibit A. BE IT FURTHER RESOLVED that the City Manager is authorized to make any necessary, non-substantive changes to carry out the intent of this Resolution. PASSED, APPROVED AND ADOPTED this 2nd day of November 2021, by the following vote: AYES: Councilmembers Hu, Josey, Kumagai, McCorriston and Mayor Hernandez NOES: ABSENT: ABSTAIN: ______________________________ Mayor ATTEST: _________________________________ City Clerk Attachment 2 Exhibit A FIRST AMENDMENT TO THE PUBLIC ART AGREEMENT BETWEEN THE CITY OF DUBLIN AND SCULPTURAL SOLUTIONS WHEREAS, on May 24, 2018, the City of Dublin (hereinafter referred to as "CITY") and Sculptural Solutions (hereinafter referred to as "Artist ") entered into a Public Art Agreement for design, fabrication and installation of Public Art at Don Biddle Community Park (hereinafter referred to as the “AGREEMENT”); and WHEREAS, delays not directly associated with the public art agreement have increased costs above what was originally proposed and have become a financial burden on the artist; and WHEREAS, the CITY and Artist now wish to amend the Agreement to, modify Sections 3, 15.1, 16.5, 19.12 and Exhibit C of the Agreement; and NOW THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the AGREEMENT is amended as follows: 1) Section 3 shall be rescinded in its entirety and replaced with the following: COMPENSATION. City hereby agrees to pay Artist a sum not to exceed $550,000 as specified in Exhibit C, notwithstanding any contrary indications that may be contained in Artist’s proposal, for services to be performed under this Agreement; or subject to additional amounts for any revisions requested and change order approved by the City as provided for in Section 2.3 above or elsewhere in this Agreement. In the event of a conflict between this Agreement and Artist’s proposal, regarding the amount of compensation, the Agreement shall prevail. City shall pay Artist for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified in Exhibit C shall be the only payments from City to Artist for services rendered pursuant to this Agreement. Artist shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City, Artist shall not bill City for duplicate services performed by more than one person. Artist and City acknowledge and agree that compensation paid by City to Artist under this Agreement is based upon Artist’s estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Artist. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Artist and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement. Attachment 2 Exhibit A 2) Section 15.1 shall be rescinded in its entirety and replaced with the following: Independent Contractor. At all times during the term of this Agreement, Artist shall be an independent contractor and shall not be an employee of City. This Agreement shall not be construed as an agreement for employment. City shall have the right to control Artist only insofar as the results of Artist’s services rendered pursuant to this Agreement and assignment of personnel pursuant to Subsection 1.3; however, otherwise City shall not have the right to control the means by which Artist accomplishes services rendered pursuant to this Agreement. Artist further acknowledges that Artist performs Services outside the usual course of the City’s business; and is customarily engaged in an independently established trade, occupation, or business of the same nature as the Artist performs for the City, and has the option to perform such work for other entities. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Artist and any of its employees, agents, and subcontractors providing services under this Agreement shall not 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. 3) Section 16.5 shall be rescinded in its entirety and replaced with the following: Nondiscrimination and Equal Opportunity. Artist shall not discriminate, on the basis of a person’s race, sex, gender, religion (including religious dress and grooming practices), national origin, ancestry, physical or mental disability, medical condition (including cancer and genetic characteristics), marital status, age, sexual orientation, color, creed, pregnancy, genetic information, gender identity or expression, political affiliation or belief, military/veteran status, or any other classification protected by applicable local, state, or federal laws (each a “Protected Characteristic”), 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 Consultant under this Agreement. Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. 4) Section 19.12 Integration shall be rescinded in its entirety and replaced with the following: Attachment 2 Exhibit A Integration. This Agreement, including Exhibits A, B and updated Exhibit C, represents the entire and integrated agreement between City and Artist and supersedes all prior negotiations, representations, or agreements, either written or oral. 5) Except to the extent inconsistent with this First Amendment, the Parties ratify and confirm all of the terms and conditions of the AGREEMENT. 6) All requisite insurance policies to be maintained by the Consultant pursuant to the Agreement, as may have been amended from time to time, shall include coverage for the amended term, as described above. 7) The individuals executing this Amendment and the instruments referenced in it on behalf of Consultant each represent and warrant that they have the legal power, right and actual authority to bind Consultant to the terms and conditions of this Amendment. SIGNATURES ON THE FOLLOWING PAGE Attachment 2 Exhibit A IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be executed as of the date and year first above written. CITY OF DUBLIN Dated: ___________ __ By: ________________________________ Linda Smith, City Manager ATTEST: By: Marsha Moore, City Clerk ARTIST Dated: By: _____________________________ Steven Whyte, Artist  Attachment 2 Exhibit A EXHIBIT C COMPENSATION SCHEDULE % COMPLETION PHASE OF WORK DESCRIPTION OF PHASE By Phase Overall ARTIST FEE EXECUTION Execution of Contract 10% 10% $50,000 Phase I Engineering 10% 20% $50,000 Phase II Clay Models 20% 40% $100,000 Phase III Molds to the Foundry 20% 60% $100,000 Phase IV Bronze Cast 20% 80% $100,000 Phase V Site Work, Installation and Closeout 20% 100% $150,000 TOTAL ARTIST FEE $550,000