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Home My WebLink AboutC28440, A & B - Sculpture & Imprvmnts @ Monterey Ave/Dinash Shore Dr. Median (937-06) ' // — / � �ri��f��s �f�.� � � ( ��;y�`'�° ., r .��.�_ �/� ,.L�/ll' ,.i/)�l� � c�. ��,: � < i�i� l CITY OF PALM DES �"�`��-- �..,? `r'r�:;��1 t�i itii� �'.��:��"'s��._...._.......,..._.,_.a_.__..,_ PUBLIC WORKS DEPART ENT ��:�-..��.�. _��.,.....,FY� STAFF REPORT REQUEST: Approve the Plans, Specifications, and Engineer's Estimate; Authorize Advertisement for Bid; and Award Sculpture Contract for the Monterey Avenue/Dinah Shore Drive Median Sculpture and Landscape Improvements (Project No. 937-06) SUBMITTED BY: Mark Greenwood, P.E., Director of Public Works DATE: April 9, 2009 CONTENTS: Engineer's Estimate Artist's Proposal Artist's Agreement Site Map Vicinity Map Recommendation: By Minute Motion: 1. Approve the Plans, Specifications, and Engineer's Estimate, and 2. Authorize Advertisement for Bid for the Monterey Avenue/Dinah Shore Drive Median Sculpture and Landscape Improvements (Project No. 937-06). 3. Approve Program Supplemental Agreement RPSTPLE 5414 (006), in the amount of $567,000, for the Monterey Avenue/Dinah Shore Drive Median Landscape Improvements, and 4. Authorize the City Manager to execute the Program Supplement. 5. Award Contract No. C 2s44o to Heath Satow for the design and construction of the sculpture piece in the amount of $248,900, and 6. Authorize the Mayor to execute the agreement. Funds are available in the Capital Project Reserve Fund, Account Number 400-4645- 433-4001, and the AIPP Capital Fund, Account Number 436-4650-454-4001. No General Fund money is being used for this expenditure. G:\PubWorks\Staff Reports�2009Wpril 9\03 Monlerey Avenue-Dinah Shore Median Landscape and Sculplure\SR Approve PS&E Aulh lo Bid vs 2.doc Staff Report Approval of PS&E Page 2 of 5 April 9, 2009 Executive Summary: The Monterey Avenue/Dinah Shore Drive Median Sculpture and Landscape Improvements (Project No. 937-06) include the installation of landscaping and a sculpture piece. This project is funded by Federal Transportation Enhancement (TE) funds and the City's Capital Project Reserve Fund (Fund 400). The sculpture is proposed to be funded from AIPP Capital Fund. At the January 8, 2009, City Council meeting City Council conceptually approved the sculpture and requested that staff investigate the impact on the TE funding should the project scope be reduced. This investigation has been completed and is explained below. On March 18, 2009, the City received authorization from the California Department of Transportation (Caltrans) to begin construction. Discussion: General The project is located on Monterey Avenue from Dinah Shore Drive north to the Union Pacific Railroad tracks, a length of approximately 700 lineal feet. This roadway section is part of an overcrossing that passes over the Southern Pacific Railroad and Interstate 10. The proposed landscape improvements include installing landscape and irrigation on the Monterey Avenue embankments, and replacing the 18 foot wide concrete center median with landscape and irrigation. An art feature will be integrated into the center median providing an entry statement into the City of Palm Desert. The project is partially funded with TE funds in the amount of $567,000 instead of the originally requested amount of $600,000 through Caltrans. The project has been designed and will be constructed in accordance with the guidelines set forth in the Caltrans Local Procedures Manual and the project will be advertised with State/Federal prevailing wage requirements included in the contract specifications. The Federal Environmental Document was approved by Caltrans on November 7, 2007. The California Transportation Commission (CTC) allocated the Federal funds to the project at the Commission Meeting on December 11, 2008. On March 18, 2009, the City received authorization to begin construction from Caltrans. On December 13, 2007, City Council awarded a contract to David Evans and Associates, Inc., (DEA) for the design of the Monterey Avenue/Dinah Shore Drive Median Sculpture and Landscape Improvements (Project No. 937-06). DEA has presented various conceptual designs to the City for review and approval. Based on the approved concepts, DEA has completed the plans and specifications for the project. The project has been designed to accommodate a public art feature that will be built and installed by the artist, Heath Satow. The current cost estimates and funding are as follows: Staff Report Approval of PS&E Page 3 of 5 April 9, 2009 CURRENT ESTIMATED PROJECT COSTS ESTIMATED SOFT COSTS DEA Design Fees $ 88,425.00 Consultant Fees (NAI) $ 68,700.00 Subtotai $ 157,125.00 ESTIMATED CONSTRUCTION COSTS: Landscape and Irrigation Construction $ 981,733.68 Contingency(10%) $ 98,173.37 Subtotal $ 1,079,907.05 TOTAL ESTIMATED CONSTRUCTION COST: Soft, Landscape, and Irrigation $ 1,237,032.05 ESTIMATED SCULPTURE COST: $ 248,900.00 TOTAL ESTIMATED PROJECT COST $ 1,485,932.05 TE GRANT FUNDING $ 567,000.00 CITY FUNDING $ 918,932.05 Scope Reduction At the City Council's request, staff has investigated the viability of reducing the project scope. The implications associated with such a reduction are discussed below. The City requested $600,000 in TE grant funding from Riverside County Transportation Commission (RCTC) for the project. The City's TE grant application assured the RCTC that the City would contribute 50 percent of the costs associated with the proposed improvements. In return for the 50 percent contribution, the project received additional priority points and was ultimately ranked higher than projects with lower local contributions. Therefore, the City is required to maintain its minimum 50 percent project contribution. The project, as currently scoped, was approved for funding allocation in the amount of $567,000 by the CTC on December 11, 2008. The CTC's funding allocation establishes a six-month time period for the City to award the construction contract for the project. Considering the allocation was approved by the CTC on December 11, 2008, the City must award the construction contract prior to June 11, 2009. If the City does not meet this initial allocation deadline, the TE funding will lapse and may be reprogrammed by the CTC. Staff Report Approval of PS&E Page 4 of 5 April 9, 2009 Based on the Engineer's Estimate of construction costs of$1,079,907 and the soft costs of $157,125 less the CTC's funding allocation of $567,000, the City's expenditure for construction and soft costs will be approximately $670,032. The cost of the sculpture, which is addressed later in this report, is $248,900. Bring the City's estimated total expenditure for this project to $918,932. If the City chooses to re-scope the project at this time, the City will be required to request an extension from the CTC. In recent months, extension amendments have not been well received by this agency. In addition, all CTC agenda items, including extension requests, are required to be submitted three months prior to the meeting in which the item will appear on the agenda. At this point, it would be difficult to get an extension request before the CTC prior to June 11, 2009. This is the second time the City has been successful in obtaining TE funding to enhance the Monterey Avenue/Dinah Shore Drive intersection. The City chose not to approve the first supplemental funding agreement because of the potential need to redesign the intersection, which would have required a grade separation (i.e., build a bridge over Dinah Shore Drive). If the City chooses not to approve the supplemental agreement, the City may not have an opportunity to obtain Federal funding for this work in the future. Fiscal Impact: Funding for the City's required portion of the landscape work in the amount of approximately $670,032 is available from the Capital Project Reserve Fund in account number 400-4645-433-4001. Contingent upon City Council authorization to advertise the project for bid, the following is the project schedule: City Council PS&E Approval April 9, 2009 Project Advertisement April 10 —April 29, 2009 City Council Considers Construction Award May 7, 2009 Construction June — October, 2009 Project Close-out/Acceptance November 2009 Sculpture Heath Satow was selected to design and fabricate the art piece for this project. He has presented several potential designs to the Landscape Beautification Committee and the Art in Public Places Commission. Both groups have agreed and approved the sculpture presented in the attached documentation. Please note that this art project is subordinate to the landscape improvements. Specifically, this sculpture cannot be installed without the completion of the landscape improvements. At its January 8, 2009, meeting, City Council gave conceptual approval of the sculpture design. Community Services and Public Works staffs met and discussed the use of Staff Report Approval of PS&E Page 5 of 5 April 9, 2009 AIPP funds for the sculpture piece. There are budgeted funds available in the AIPP Capital Account Fund (Account Number 436-4650-454-4001). Fiscal Impact: The $248,900 cost for the sculpture will be covered by the AIPP Capital Account (Number 436-4650-454- 4001). Therefore, staff recommends that City Council: 1. Approve the Plans, Specifications, and Engineer's Estimate, and 2. Authorize Advertisement for Bid for the Monterey Avenue/Dinah Shore Drive Median Sculpture and Landscape Improvements (Project No. 937-06). 3. Approve Program Supplemental Agreement RPSTPLE 5414 (006), in the amount of $567,000, for the Monterey Avenue/Dinah Shore Drive Median Landscape Improvements, and 4. Authorize the City Manager to execute the Program Supplement. 5. Award Contract No. C2s44o to Heath Satow for the design and construction of the sculpture piece, in the amount of$248,900, and 6. Authorize the Mayor to execute the agreement. Prepared By: Submitted By: H. pe cer 'ght Mark eenwood, P.E. Lan s pe ager Director of Public Works Approval: .�--�i— �—�_�___` � �Homer Croy Paul Gibson ACM for Development Services Finance Director < �.��,�.ti.��-- J n . Wohlmuth it Manager HSWdhI �� ESTIMATE OF PROBABLE COSTS �=;� ,_�� ; .. City of Palm Desert-Monterey Avenue Landscape Improvement Plans 4-Sep-08 ITEM DESCRIPTION NO. QTY. UNIT UNIT PRICE EXTENDED PRICE 1 Mobilization(2%) 1 LS $ 19,249.68 $ 19,249.68 Sub Total: $ 19,249.68 Demolition 2 Clear and Grub(Planting and Irrigation) 150,985 SF $ 0.30 $ 45,295.50 3 Sawcut Existing Paving 206 LF $ 4.00 $ 824.00 4 Cut and Patch Existing Paving(758 SF) 758 SF $ 8.00 $ 6,064.00 5 Remove Existing Concrete Paving and Mis.Agg.Base 10,169 SF $ 3.00 $ 30,507.00 � Sub Total: $ 82,690.50 Grading 6 Traffic Control 1 Allow $ 8,000.00 $ 8,000.00 7 Topsoil 70/30 Blend at Median(10169 SF) 252 CY $ 22.00 $ 5,544.00 Sub Total: $ 13,544.00 Construction 8 2'Rock Boulders 14 EA $ 130.00 $ 1,820.00 9 3'Rock Boulders 22 EA $ 260.00 $ 5,720.00 10 5'Rock Boulders 12 EA $ 520.00 $ 6,240.00 11 2°Thick Decomposed Granite(Southwest Brown Fine) 39 CY $ 50.00 $ 1,950.00 (6158 SF) 12 2"Thick Crush Rock(Shouthwest Brown)(11963 SF) 74 CY $ 50.00 $ 3,700.00 13 2"Thick Crush Rock(California Gold)(]0665 SF) 66 CY $ 50.00 $ 3,300.00 14 Gush Rock(Mojave Gold 4-6") 3,852 SF $ 12.00 $ 46,224.00 15 Crush Rock(Mojave Gold 6-8") 4,571 SF $ 12.00 $ 54,852.00 16 Glass Cobble 4-6"Depth(installation Labor) 752 SF $ 8.00 $ 6,016.00 18 Sculpture Footings 1 Allow $ 20,000.00 $ 2Q000.00 Sub Total: $ 149,822.00 Electrical � 19 Elech-ical Pedestal and SCE Connection 1 EA $ 20,150.00 $ 20,150.00 20 Light Fixtures and Installation 1 Allow $ 75,900.00 $ 75,900.00 21 Conduit,Pullboxes,and Irrigation Connection 1 Allow $44,045.00 $ 44,045.00 Sub Total: $ 140,095.00 Irrigation 22 1"WaterMeter 1 EA $ 16,000.00 $ 16,000.00 23 Imgation 118,655 SF $ 3.00 $ 355,965.00 24 Calsense Irrigation Controller with Enclosure 1 EA $12,000.00 $ 12,000.00 25 1"Backflow Preventer with enclosure 1 EA $3,000.00 $ 3,000.00 Sub Total: $ 386,965.00 Planting 26 Soil Prep/Fine Grading 118,655 SF $ 0.15 $ 17,798.25 27 2"Desert Erosion Mulch(95328 SF) 589 CY $ 30.00 $ 17,670.00 28 Palm Tree IS-20'BTA(Washingtonia) 34 EA $ 2,300.00 $ 78,200.00 29 Palm Tree 4-5'BTH(Washingtonia) 1 l EA $ 570.00 $ 6,270.00 30 6'Ht.Ocotillo 15 Cane 18 EA $ 220.00 $ 3,960.00 31 Cactus(Cereus Peruvianus'Monstrosus') 10 EA $ 150.00 $ 1,500.00 CPDX0000-0027 32 Palm Tree 4-8'BTH(Brahea Armata) 6 EA $ 900.00 $ 5,400.00 33 Opuntia'SantaRita' 12 EA $ 110.00 $ 1,320.00 34 15 gallong shrub 44 EA $ 30.00 $ 1,320.00 35 5 gallon shrub 509 EA $ 20.00 $ 10,180.00 36 1 gallon shrub 422 EA $ 10.00 $ 4,220.00 Sub Total: $ 147,838.25 Maintenance 37 90-Day Maintenance Period 118,655 SF $ 0.35 $ 41,529.25 Sub Total: $ 41,529.25 Sub Total: $ 981,733.68 10 %Contingency $ 98,173.37 TOTAL: $ 1,079,907.05 Prepared By:SXWA/CCG David Evans and Associates Inc. Riverside,California 92507 951-682-8500 CPDX0000-0027 Heath Satow Sculpture t�UC1TE Sculpture and archifectural elements in metal 318 Date Avenue Alhambra, CA 91803 DATE: 12/16/08 Toll free: 866-432-8411 Quote for; American Kestrel Sculpture located on Monterey Avenue near Dinah Shore Drive intersection DESCRIPTION AMOUNT Dcsign $12,000 Materials and Fabrication $221,000 Shipping $4,200 Installation $11,700 TOTAL $248,900 Contract No. C2844o AGREEMENT FOR COMMISSION OF PUBLIC ART WORK THIS AGREEMENT is entered into this 9th day of April, 2009, by and between the City of Palm Desert, a municipal corporation (the "City") and Heath Satow (the "Artist"). RECITALS WHEREAS, the Artist is implementing a public art program pursuant to Chapter 4.10 of Palm Desert Municipal Code, establishing an art in public places program and related development fee in the City, and pursuant to Ordinances 900 and 936, Ordinances of the City Council of the City of Palm Desert, California, establishing the organization, objectives, and responsibilities of the Palm Desert "Art In Public Places Commission" ("The Commission"), and pursuant to the City of Palm Desert "Art In Public Places" program manual; and WHEREAS, the Artist is a recognized professional artist, and the City acknowledges sufficient familiarity with the style and quality of the Artist's work, and; the City desires the Artist to create an original work of art "The American Kestrel" ("the Work") for location at the Monterey Avenue Median, north of Dinah Shore ("the Site"). The Artist's concept design ("the Proposal" which shall be attached as Exhibit "A"), has been reviewed and approved by the City. The Artist shall commence with fabrication, transportation, and installation of the Work to the Site. NOW, THEREFORE, the City and the Artist, for the consideration and under the conditions hereinafter set forth, and pursuant to the authority, terms, and conditions set forth in Chapter 4.10 of the Palm Desert Municipal Code, 1 Contract No. C 28440 Ordinances 900 and 936, and the City of Palm Desert "Art In Public Places" program manual, agree as follows: ARTICLE 1: SCOPE OF SERVICES 1-1 GENERAL (a) The Artist shall perform all services and furnish all supplies, materials, artist and agent travel, and equipment as necessary for the design, execution, fabrication, transportation, and installation of the Work at the Site with the exception of the foundation, and in accordance with the terms in this Agreement. 1-2 REVIEW OF THE PROPOSAL (a) The Artist or designee has prepared and submitted to the City artwork specifications and presentation drawings of the Work in elevation and plans, containing the following items, which shall be the "Proposal". i. One copy of a written description and technical specifications of the Work on 8.5" x 11" pages including the following information: • Artwork Description; • Materials description of the sculpture and site work; • Fabrication and installation procedures; • Yearly Maintenance and Conservation; • Work plan and Production Schedule; • Budget breakdown; • Artist resume or curriculum vitae; • Proposed list of subcontractor(those known to date); • Other information about the Work as may be reasonably required by the City and Commission in order to certify the compliance of the Work with applicable statutes and ordinances. Said exhibits will become the property of the City upon submission by the Artist. Upon request by Artist, the City shall 2 Contract No. C 2g440 promptly furnish all available exhibits in connection with said submission at the artist's expense. (b) Upon approval by the City Council and written direction to move forward, the Artist shall commence with fabrication, transportation, and installation of the Work at the Site. (c) The City may require the Artist to make such revisions to the proposed Work as are necessary for the Work to comply with applicable statutes, ordinances, or regulations governing the project. (d) The City may require revisions of the Work for practical (non- aesthetic) reasons. (e) The Artist fee may be equitably adjusted for any increase or decrease in the Artist's cost of, or time required for, performance of any revisions pursuant to this Section 1-2. Any claim of the Artist for adjustment under this paragraph must be presented to the City in writing within thirty (30) days after the date of the revision by the Artist. (f) Within thirty (30) days after receipt of the Artist's revisions, pursuant to this Section 1-2, the City shall notify the Artist of its approval or disapproval of such revisions. The City may require the Artist to submit additional revisions until such revisions are accepted by the City. Revisions made and accepted by the City pursuant to this Section 1-2 become a part of the final design, technical specifications and fabrication and installation schedule of the Work, which shall be attached to this Agreement as Exhibit "B". 3 Contract No. C 28440 1-3 EXECUTION OF THE WORK (a) Pursuant to Section 1-2 above, the Artist shall commence fabrication of the Work, in accordance with such schedules. Although the schedule may be amended by written agreement between the City and the Artist, it is agreed that the Artist shall perform all of the obligations under this contract on or before November 9, 2009. (b) The City and the Commission shall have the right to review the Work at reasonable times during the fabrication. The Artist shall submit to the City and to the Commission progress reports in accordance with the schedule required by Section 1-2. (c) The Artist shall complete the fabrication and installation of the Work in substantial conformity with the approved Proposal. (d) The Artist shall present to the City and to the Commission, in writing, for further review, any "significant changes" in the scope, design, color, size, material, or texture of the Work not permitted by or not in substantial conformity with the Proposal. A "significant change" is: i. Any material change in the scope, design, color, size, material, texture, or location of the Work on the Site; ii. Any material change in the Work that affects installation, scheduling, site preparation, or maintenance for the Work; or iii. Any change in the concept of the Work as represented in the accepted proposaL 4 Contract No. C 2g440 (e) If changes reviewed by the City and Commission are not approved, the Artist will not resume the Work nor resume the payment schedule until changes to the Work are reviewed and approved by the City and Commission. 1-4 DELIVERY AND INSTALLATION (a) Prior to commencement of work at the Site, the Artist shall notify the City of schedules for installation. The Artist shall be responsible for all expenses, labor, and permits. (b) Prior to delivery of the Work, the Artist shall notify the City and Commission in writing when fabrication of the Work is completed and the Artist is ready for delivery of the Work to the Site. (c) The Artist shall provide for completion of the Work in compliance with appropriate codes and the approved schedule. 1-5 POST INSTALLATION (a) Within thirty (30) days after the installation of the Work, the Artist shall furnish the City with the following documentation of the Work as installed: i. Two sets of three 35mm color slides of the completed Work, one taken from each of three different view points; ii. The City shall have the right to duplicate and distribute for any noncommercial purpose the artwork documentation supplied by the Artist under this Agreement; 5 Contract No. C 28440 iii. The Artist shall be available at such time or times as may be agreed between City and Artist to attend any inauguration or dedication ceremonies relating to the transfer of The Work to the City. The City shall use its best efforts to arrange for publicity for the completed work in such art publications and otherwise as may be determined between the City and the Artist as soon as is practical following installation. (b) Upon installation of the Work, the Artist shall provide the City with written instructions for appropriate maintenance and preservation of the Work. 1-6 FINAL ACCEPTANCE (a) The Artist shall advise the City in writing when all services required under this Agreement have been completed in substantial conformity with this Agreement. (b) The City shall notify the Artist in writing of the final acceptance (or nonacceptance) of the Work. (c) Final acceptance shall be effective as of the earlier of the following dates: i. The date of the City's notice of final acceptance; or ii. The 30t" day after the Artist has sent written notice to the City required under Section 1-6(a) unless the City, upon receipt of such 30-day notice and prior to the expiration of the 30-day period, gives the Artist written notice specifying 6 Contract No. C�s44o and describing the services, which have not been completed. 1-7 RISK OF LOSS The risk of loss or damage to the Work shall be borne by the Artist until final acceptance, and the Artist shall take such measures as are necessary to protect the Work from loss or damages until final acceptance. 1-8 INDEMNITY Upon final acceptance of the Work, the Artist shall indemnify and hold the City and the Commission harmless from any and all claims or liabilities then existing or arising thereafter from the Artist's negligence or willful misconduct in connection with the Work. 1-9 TITLE AND ASSIGNMENT OF ROYALTY RIGHTS (a) Title to the Work shall pass to the City upon final acceptance. The Artist hereby assigns the right to collect the royalty payment provided by Civil Code Section 986 to the City and to City's assigns. (b) Except as expressly provided in the Proposal, the City shall not intentionally damage, alter, modify, or change the Work without the prior written consent of the Artist. (c) The Artist acknowledges and agrees that the City may require the Site for purposes other than the display of the Work. The City agrees that it will notify the Artist of any proposed alteration of the Site that would require the removal or relocation of the Work or affect the intended character and appearance of the Work and will consult with the Artist in 7 Contract No. C2g440 the planning and execution of any such removal, relocation, or alteration and will make a reasonable effort to maintain the integrity of the Work. ARTICLE 2: COMPENSATION AND PAYMENT SCHEDULE 2-1 AGREEMENT AMOUNT AND PAYMENT (a) The City shall pay the Artist an amount not to exceed $248,900.00, which will constitute full compensation and payment for all services to be performed under this Agreement including execution, fabrication, artist and/or agent travel, transportation, and installation. Payment shall be made in accordance with Schedule included in Proposal. Commencement of Fabrication Thirty percent (40%) ($74,670.00) of the Commission upon commencement of fabrication, as detailed in Proposal. Completion/Delivery/Installation of the Work Thirtv percent (30%) ($74,670.00) of the Commission upon completion of the fabrication of the Work and thirty percent (30%) ($74,670.00) upon final installation of the Work. Final Acceptance Ten percent (10%) ($24,890.00) of the Commission upon completion of all outstanding work and review and approval of Work by the City. (b) All requests for payment shall be submitted to the Public Arts Manager in writing for review and approval and must be accompanied by a detailed invoice and original receipts and other documentation as required by the Public Arts Manager supporting work completed. 8 Contract No. C 28440 (c) Payment shall be issued within 30 days of approval of detailed invoices and requests for payment by the Public Arts Manager. 2-2 ARTIST'S EXPENSES The Artist shall be the responsible party for all mailing or shipping charges on submissions to the City, and the costs of all travel by the Artist and the Artist's agents and employees necessary for the proper performance of the services required under this Agreement. ARTICLE 3: WARRANTIES 3-1 WARRANTIES OF TITLE The Artist represents and warrants that: (a) The Work is solely the result of artistic effort of the Artist; (b) Except as otherwise disclosed in writing to the City, the Work is unique and original and does not infringe upon any copyright; (c) That the Work, or a duplicate thereof, has not been accepted for sale elsewhere; and (d) The Work is free and clear of any liens from any source whatsoever. 3-2 WARRANTIES OF QUALITY AND CONDITION The Artist represents and warrants that: (a) The execution and fabrication of the Work will be perFormed in a professional manner (expert, qualified, skilled); (b) The Work, as fabricated and installed, will be free from defects in material (except such defects as are normally present and unavoidable in 9 Contract No. C28440 natural materials and outlined in Proposal) and workmanship, including any defects or qualities which cause or accelerate deterioration of the Work; and (c) Reasonable maintenance of the Work will not require procedures substantially in excess of those described in the maintenance recommendations by the Artist to the City; (d) The warranties described in this Section 3-2 shall survive for a period of one (1) year after final acceptance of the Work. The City shall give notice to the Artist of any observed breach with reasonable promptness. The Artist shall, at the instruction of the City, and at no cost to the City, cure reasonably and promptly the breach of any such warranty which is curable by the Artist and which cure is consistent with professional standards, including for example, cure by means of repair or refabrication of the Work as determined by the City. ARTICLE 4: INSURANCE 4-1 GENERAL Before commencement of any work at the site, the Artists shall apply for and must receive approval for an Encroachment Permit from the Department of Public Works. The permit requires execution of a Hold Harmless Agreement and an Agreement to provide insurance for the duration of the work performed. The insurance specifications required in a standard Encroachment Permit include general liability insurance with a $1,000,000 combined single limit, and an endorsement adding the City, its 10 Contract No. C 28440 agents, officers, and employees as additional insured. If the artist is using a vehicle for delivery and installation, automobile liability insurance is required and, if the artist has additional workers directly employed, Workers Compensation insurance is required at the statutory limits. The Encroachment Permit application (attached) provides additional details. The Artist shall not commence work under this Contract until the Artist has secured all insurance required under this section, and provided written proof to the City, nor shall the Artist allow any subcontractor to commence work on any subcontract until all similar insurance required of the subcontractor has been obtained and submitted to the City in writing. ARTICLE 5: COPYRIGHT 5-1 Copyright in the Work and related design, drawings, sketches, and models will be owned by the Artist until acceptance of the Artist's Work by the City pursuant to Section 1-6 hereof. Notwithstanding the foregoing, the Artist agrees not to make use of such copyright in the Work for any purpose other than the performance by the Artist of the ArtisYs obligations under this Artwork Agreement, without the written consent of the City. Upon acceptance of the Artist's Work pursuant to Section 1-6 hereof copyright in the Work will be owned jointly by the City and the Artist and no further use of the copyright will be made by the Artist or the City without the written consent of the other, which consent will not be unreasonably withheld. 11 Contract No. C28440 5-2 The Artist certifies that the Artwork is a unique work of art especially designed for the City, and shall not duplicate or reproduce the Work nor shall the Artist permit others to do so except with the written permission of the City. 5-3 The City has the right to reproduce and distribute in printed form and on commercial documents and or brochures or any other literature of the City describing or dealing with its real estate holdings, photographs, realistic renderings, videotapes, or films of the Work. Such reproductions and use of the images of the Work for promotional purposes shall not constitute a breach of copyright and no royalty shall be due and payable by the City to the Artist for such use. 5-4 CREDIT TO THE ARTIST All reproductions of the Work by the City shall contain a credit to the Artist. 5-5 CREDIT TO THE CITY The Artist shall use his best effort to give a credit in any public showing under the ArtisYs control of illustrations of the Work as follows: "An original work owned and commissioned by the City of Palm Desert, California." ARTICLE 6: ARTIST'S RIGHTS 6-1 MAINTENANCE The City shall reasonably protect and maintain the Work against the ravages of time, vandalism, and the elements, in accord with the instructions of the Artist provided under Section 1-5(b). 12 Contract No. C2x44o 6-2 ARTIST REPRODUCTION RIGHTS Pursuant to Article 5, Section 5-1, the City agrees that the Artist shall have the right to reproduce and distribute in printed form and on non- commercial educational materials and brochures advertising or promoting the Artist and the Artist's career, two-dimensional images such as photos, slides or realistic renderings, video tapes, or films of the Work as installed and formally accepted by the City. Such reproductions and use of the images of the Work for promotional and educational purposes shall be deemed to not constitute a breach of copyright in any way and no royalty fee shall be due and payable to the Artist for such use. Such reproduction and images of the Work for publicity, promotion, and educational purposes shall, to the extent reasonably possible and appropriate, give reference to the City of Palm Desert. ARTICLE 7: ARTIST AS INDEPENDENT CONTRACTOR The Artist shall perform all work under this Agreement as an independent contractor and not as an agent or employee of the City. The Artist shall not be supervised by any employee or official of the City nor shall the Artist exercise supervision over any employee or official of the City. The City alerts the Artist to the provisions of the Labor Code §1771, which may require the payment of prevailing wages. ARTICLE 8: ASSIGNMENT, TRANSFER AND SUBCONTRACTING Neither the City nor the Artist shall assign or transfer any interest in this Agreement without prior written consent of the other. The Artist may subcontract 13 Contract No. C 2g440 portions of the services to be provided hereunder at the Artist's expense provided that said subcontracting shall not affect the design, appearance or visual quality of the Work and shall be carried out under the personal supervision of the Artist, and in accordance with all applicable laws. ARTICLE 9: TERMINATION If either party to this Agreement shall willfully or negligently fail to fulfill, in a timely or proper manner, or otherwise violate any of the covenants or agreements material to this Agreement, then the other party shall thereupon have the right to terminate this Agreement by giving written notice to the defaulting party of its intent to terminate, specifying the grounds for termination. The defaulting party shall have thirty (30) days after receipt of the notice to cure the default. In the event of default by the Artist, all finished and unfinished drawings, sketches, photographs, and other products prepared and submitted or prepared for submission by the Artist under this Agreement shall, at the City's option, become City property. This, however, shall not relieve the Artist of liability to the City for damages sustained by the City by virtue of any breach of this Agreement by the Artist. In addition to all other remedies, the City may reasonably withhold payments to the Artist until such time as the exact amount of damages due the City from the Artist is determined. ARTICLE 10: PUBLIC ART COORDINATOR AND CONTRACT ADMINISTRATOR The Contract Administrator for this Agreement shall be the Public Arts Manager of the City of Palm Desert, or his/her designee. 14 Contract No. C 28440 ARTICLE 11: NON-DECIMATION In carrying out the performance of the services designated, the Artist shall not discriminate as to race, religion, sex, age, sexual orientation, national origin, or the presence of any physical, mental or sensory handicap. ARTICLE 12: COMPLIANCE The Artist shall be required to comply with all federal and state laws and City statutes, ordinances, and regulations applicable to the performance of the Artist's services under this Agreement, including but not limited to, Chapter 4.10 of the Palm Desert Municipal Code, Ordinances 900 and 936, and the City of Palm Desert "Art in Public Places" manual. ARTICLE 13: ENTIRE AGREEMENT This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements or understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. ARTICLE 14: MODIFICATION No alternation, change, amendment, or modification of the term of this Agreement shall be valid, unless made in writing and signed by both parties hereto and approved by appropriate action of the City and the Commission. ARTICLE 15: WAIVER No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants, or conditions in this 15 Contract No. C 28440 Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right nor an acceptance of performance. ARTICLE 16: GOVERNING LAW This Agreement, regardless of where executed or performed, shall be governed by and construed in accordance with the laws of the State of California. ARTICLE 17: HEIRS AND ASSIGNS This Agreement shall be binding upon and shall inure to the benefit of the City and of the Artist and of their respective heirs, personal representatives, successors, and permitted assigns. ARTICLE 18: NOTICES All notices, requests, demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon delivery and receipt thereof, as the case may be, if delivered personally or sent by certified mail, return receipt requested, postage-prepaid as follows: City: Artist: City of Palm Desert Heath Satow c/o Landscape Manager Heath Satow Sculpture 73-510 Fred Waring Drive 318 Date Avenue Palm Desert, CA 92260 Alhambra, CA 91803 ARTICLE 19: ATTORNEY'S FEES Should any action or proceeding be brought to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs. 16 Contract No. C 28440 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by his respective authorized officers or representatives as of the day and year set forth on page one of this Agreement. CITY OF PALM DESERT ARTIST By: Robert A. Spiegel, Mayor Heath Satow, Artist ATTEST: APPROVED AS TO FORM: By: Rachelle D. Klassen David J. Erwin City Clerk City Attorney 17 EXHIBIT A TO AGREEMENT FOR COMMISSION OF PUBLIC ART WORK BETWEEN THE CITY OF PALM DESERT AND HEATH SATOW Heath Satow Scu�pture t�Ut�TE Sculpfure and archifectural elements In metal 318 Date Avenue Alhambra, CA 91803 DATE: 12/16/Q8 Toll free: 886-432-8411 Quote for: American Kestrel Sculpture located on Monterey Avenue near Dinah Shore Drive intersection DESCRIPTION AMOUNT Design $12,000 Materials and Fabrication $221,000 ShiPP�n9 $4,200 Installation $11,704 TOTAL $248,900 . � r . � � ,.�� r �-� �ct�� '` „ a � � ` � �� -'� � �� _'� < :.�; �_...�..- � � : +�..�� ..�F� t+ .. -5 . � — , .p�t� . � t �` �� 5�+• �� SA.,y � . �..i , � �� . � 5� fI µW1,'�� l � � �M � �� S ^� h'F"" q �eV+ J cp.�utt, � r ... k ^�k V�§ PROJECT l �ti,.� � �� LOCATION ' �S'qT + � # . Fy � '� . .``� � ��,�� . _ �� 4 d � '-DINAH SHORE DRy �--. � � �� . 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