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HomeMy WebLinkAboutResolution 2017-123 N.C.S. 08/07/2017Resolution No. 2016 -123 N.C.S. of the City of Petaluma, California RESOLUTION OF THE CITY OF PETALUMA CITY COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH BRIAN GOGGIN FOR PUBLIC ART SERVICES FOR THE WATER STREET PUBLIC ART PROJECT WHEREAS, on June 17, 2013, the City Council of the City of Petaluma adopted the Petaluma Public Art Master Plan (Resolution 2013 -064 N.C.S.), created by the Petaluma Public Art Committee with consultant Chandra Cerrito /Art Advisors LLC; and WHEREAS, the Petaluma Public Art Master Plan includes detailed recommendations for enhancing Petaluma's public art program, including the identification of sites for future public art projects on public property; and WHEREAS, the Petaluma Public Art Master Plan identifies the Plaza near the Water Street Bridge as a site, among others, for future public art on public property, and the City of Petaluma may implement a public art project on public property using the Public Art Fund as outlined in the Public Art Master Plan; and WHEREAS, in 2014 the Petaluma Public Art Committee decided to develop a Request for Qualifications and Request for Proposals process for a public art project, using the Public Art Fund, at the Plaza near the Water Street Bridge site; and WHEREAS, in December 2014, the Petaluma Public Art Committee issued the Water Street Public Art Request for Qualifications, and subsequently selected five (5) finalists to receive the Water Street Public Art Request for Proposals for submission of site specific art concepts; and WHEREAS, the Petaluma Public Art Committee selected two (2) of the five (5) finalists from the Request for Proposals process to participate in a community open house event held on April 14, 2016, and subsequently, after garnering input from stakeholders and the community, found that neither proposal sufficiently met the intent of the Request for Qualifications /Proposals and elected to end the process without selection of a final artist; and WHEREAS, during the Spring and Summer of 2016, the Petaluma Public All Committee revised the Water Street Request for Qualifications process to both address lessons learned during the previous artist solicitation effort and incorporate public art best practices found within other local jurisdictions; and WHEREAS, as part of the modified Request for Qualifications process, the Petaluma Public Art Committee appointed a group of local stakeholders to comprise the Water Street Public Art Selection Panel, which was tasked with reviewing complete artist submissions and selecting one (1) finalist based on a set of selection criteria for recommendation to the Petaluma Public Art Committee; and WHEREAS, on October 13, 2016, the Petaluma Public Art Committee reissued the revised Water Street Public Art Request for Qualifications; and Resolution No. 2016 -123 N.C.S. Page 1 WHEREAS, on February 9, 2017, the Water Street Public Art Selection Panel reviewed all complete Request for Qualifications submissions and invited six (6) finalists for subsequent interviews, and on April 12, 2017 and April 18, 2017, the Selection Panel interviewed those six (6) finalists and after continued deliberation recommended a tie vote of two (2) artists, David Best of Petaluma and Brian Goggin of San Francisco, to the Petaluma Public Art Committee; and WHEREAS, at their Regular Meeting of April 27, 2017, the Petaluma Public Art Committee considered the tie vote and elected to invite the two (2) remaining artists for subsequent interviews with the Committee; and WHEREAS, at a special meeting on May 31, 2017, the Petaluma Public Art Committee interviewed David Best and Brian Goggin, and ultimately selected Brian Goggin as the project finalist for recommendation to the City Council of the City of Petaluma for consideration of contract award through a Professional Services Agreement; and WHEREAS, on August 7, 2017, the City Council held a duly noticed public hearing to consider the contract award of a Professional Services Agreement with Brian Goggin for Public Art Services for the Water Street Public Art Project, at which time all interested parties had the opportunity to be heard; and WHEREAS, on August 7, 2017 and prior to acting on this request, the City Council considered the staff report analyzing the Professional Services Agreement request, including the California Environmental Quality Act ( "CEQA ") determination included therein; and WHEREAS, on August 7, 2017 the City Council approved this Resolution authorizing the City Manager to execute the Professional Services Agreement, attached hereto as Exhibit A, with Brian Goggin for Public Art Services for the Water Street Public Art Project. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PETALUMA AS FOLLOWS: 1. The foregoing recitals are true and correct and incorporated herein by reference. 2. The Petaluma Public Art Committee recommended Brian Goggin ( "the artist ") for contract award of the Water Street Public Art project, based on the following selection criteria outlined in the Water Street Public Art Request for Qualifications (RFQ): a. The artist exhibits strong artistic merit as evidenced by submitted RFQ materials. b. The artist has extensive experience creating artworks in public spaces, as evidenced by submitted RFQ materials and through interviews during the RFQ selection process. c. The artist demonstrates interest in and an understanding of the Water Street Public Art project, including acknowledgement of the unique features and history of the Petaluma riverfront. d. The artist shows experience working with architects, landscape architects, planners, engineers, etc. in designing for public art projects with complex and technical parameters. e. The artist displays evidence of a track record and ability to successfully work with a projected timeline and budget. f. The artist demonstrates strong written and visual communication skills Resolution No. 2016 -123 N.C.S. Page 2 g. The artist has specified availability and an ability to work for the term of the project. 3. Based on its review of the entire record herein, including the August 7, 2017 City Council staff report, all supporting, referenced, and incorporated documents and all comments received and foregoing findings, the City Council hereby authorizes the City Manager to execute the Professional Services Agreement, attached hereto as Exhibit A, with Brian Goggin for Public Art Services for the Water Street Public Art Project in an amount not to exceed $150,000.00 for a two (2) year term terminating August 7, 2019, with a possible one year one time extension, upon provision of certificates of insurance and other required documentation acceptable to the City Attorney and City Risk Manager. Under the power and authority conferred upon this Council by the Charter of said City. REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the Aiprbved as to Council of the City of Petaluma at a Regular meeting on the 7`h day of August, form: 2017, by the following vote: AYES: Albertson, Vice Mayor Barrett, Mayor Glass, Healy, Kearney, King, Miller NOES: None ABSENT: None ABSTAIN: ATTEST: ity Attorney Resolution No. 2016 -123 N.C.S. Page 3 Exhibit A to the Resolution PROFESSIONAL SERVICES AGREEMENT Water Street Public All Project (Title of Project) FY Fund # Cost Center Object Code Project # Amount $ For multi -year contracts or contracts with multiple accounts: FY Fund # Cost Center Object Code Project # Amount $ FY Fund # Cost Center Object Code Project # Amount $ FY Fund # Cost Center Object Code Project # Amount $ FY Fund # Cost Center Object Code Project # Amount $ FY Fund # Cost Center Object Code Project # Amount $ THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement ") is entered into and effective as of , 20 ( "Effective Date "), by and between the City of Petaluma, a city use on y municipal corporation and a charter city ( "City ") and Brian Goggin, a Public Artist ( "Artist ") (collectively, the "Parties "). WHEREAS, the Parties enter into this Agreement for the purpose of Artist providing professional services to City under the terms and conditions set forth herein. THEREFORE, in consideration of the mutual covenants contained in this Agreement, the Parties agree as follows; 1. Services. Artist shall provide the services as described in and in accordance with the schedule set forth in Exhibit "A -1" attached hereto and incorporated herein ( "Services "). 2. Compensation; Business Tax Certificate. A. For the full performance of the Services as described herein, City shall compensate Artist in accordance with the rates specified in Exhibit A -1 (Scope of Services). B. Artist shall submit written request for payment at the initiation of each deliverable as specified in Exhibit A -1 (Scope of Services). No further payment for subsequent deliverables shall be authorized until the artist has demonstrated completion of the previous deliverable to the satisfaction of the City. Payment of the final deliverable shall not be issued until the completion of the project in its entirety. C. Artist shall be compensated for services in addition to those described in Exhibit A -1, only if Artist and City execute a written amendment to this Agreement describing the additional services to be performed and the compensation to be paid for such services. In no case shall the total compensation under this Agreement exceed $150,000 without prior written authorization of the City Manager. Further, no compensation for a section or work program component attached with a specific budget shall be exceeded without prior written authorization of the City Manager, D. Notwithstanding any provision herein, Artist shall not be paid any compensation until such time as Artist has on file with the City Finance Department a current Resolution No. 2016 -123 N.C.S. Exhibit A to the Resolution W -9 form available from the IRS website (www.irs.gov) and has obtained a currently valid Petaluma business tax certificate. E. City's obligation to pay compensation to Artist as provided herein is contingent upon Artist's performance of the Services pursuant to the terms and conditions of this Agreement and any amendments thereto. 3. Term. The term of this Agreement commences on the Effective Date, and terminates on August 7, 2019, unless sooner terminated in accordance with Section 4. Artist may be granted a one (1) year, one -time extension if deemed necessary by mutual agreement, in writing, of the parties. Upon termination, any and all of City's documents or materials provided to Artist and any and all of the documents or materials prepared for City or relating to the performance of the Services, shall be delivered to the City as soon as possible, but not later than fourteen (14) days after termination of the Agreement. 4, Termination. City may terminate this Agreement without cause upon ten (10) days' written notice. City may immediately terminate or suspend this Agreement for cause. Cause for immediate termination or suspension shall include, but not be limited to, any breach of this Agreement by Artist or Artist's bankruptcy or insolvency. Upon receipt of notice of termination or suspension for cause, Artist shall immediately stop all work in progress under this Agreement. In the event of early termination of this Agreement by City, Artist shall be entitled to payment for all Services performed to the date of termination to the extent such Services were performed to the satisfaction of City in accordance with the terms and conditions of this Agreement. If City terminates this Agreement for cause, Artist shall be liable to City for any excess cost City incurs for completion of the Services. 5. Artist's Representation; Independent Contractor. Artist represents that Artist possesses distinct professional skills in performing the Services. City has relied upon said representation as a material inducement to enter into this Agreement. Artist shall, therefore, provide properly skilled professional and technical personnel to perform all Services under this Agreement. It is expressly understood that Artist and its agents and employees, shall act in an independent capacity and as an independent contractor and not as officers, employees or agents of City. This Agreement shall not be construed as an agreement for employment. 6. Facilities and Equipment. Artist shall, at its sole cost and expense, furnish all facilities and equipment that may be required for furnishing Services pursuant to this Agreement. City shall furnish to Artist no facilities or equipment, unless the City otherwise agrees in writing to provide the same. 7. Licenses, Permits, Etc. Artist shall, at Artist's sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits or other such approvals which are legally required for performing the Services. Resolution No. 2016 -123 N.C.S. Exhibit A to the Resolution 8. Time. Artist shall devote such time to the performance of the Services as may be reasonably necessary for satisfactory performance of Artist's obligations pursuant to this Agreement. 9. Inspection. Artist shall provide the City every reasonable opportunity to ascertain that the Services are being performed in accordance with the requirements and intentions of this Agreement. All work done and materials furnished, if any, shall be subject to inspection and approval by the City. The inspection of such work shall not relieve Artist of any of its obligations pursuant to this Agreement. 10. ProLFress Reports. Upon the City's request, Artist shall provide, in a form acceptable to City, written progress reports of all oral and written observations, opinions, recommendations, analyses, progress and conclusions related to Artist's performance of the Services. 11. Confidentiality. In the course of Artist's employment, Artist may have access to trade secrets and confidential information, disclosure of which is protected or limited by law. Artist shall not directly or indirectly disclose or use any such confidential information, except as required for the performance of the Services. 12. Conflict of Interest. Artist represents that it presently has no interest, and covenants that it shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the Services hereunder. Artist further covenants that, in the performance of this Agreement, it shall not employ any subcontractor or person having such a conflict of interest. Artist represents that no one who has or will have any financial interest under the Agreement is an officer or employee of City. If such conflict of interest arises during this Agreement or any extension, Artist will immediately advise City and City may, at its sole discretion, immediately terminate this Agreement. Certain Artists are subject to the requirements, including the disclosure and reporting requirements, of the City's Conflict of Interest Code adopted pursuant to the Political Reform Act. Such Artists subject to the City's Conflict of Interest Code include those whose work may involve: making government decisions regarding approval or adoption of rates, rules, or regulations, action on permits or other applications, authorization to enter into or modify contracts, or approval of plans, designs, reports, or studies. Artist agrees to comply fully with all such requirements to the extent they apply to Artist's performance of the Services. 13. Artist No Agent. Except as City may specify in writing, Artist shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Artist shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. 14. Standard of Performance. Artist shall perform all the Services in a manner consistent with the standards of Artist's profession. All instruments of service of whatsoever nature, which Artist delivers to City pursuant to this Agreement, shall be prepared in a substantial, workmanlike manner and conform to the standards of Artist's profession. All such instruments of service shall become the sole and exclusive property of City upon delivery of the same. Resolution No. 2016 -123 N.C.S. Exhibit A to the Resolution 15. Assignment /Transfer. No assignment or transfer in whole or in part of this Agreement shall be made without the prior written consent of City. 16. Subcontractors. Artist shall directly perform all Services, other than those specifically referred to in the Scope of Services as being done by subcontractors, and shall not subcontract any portion of performance of the Services without the prior written consent of City. Any such subcontractors shall be required to comply, to the full extent applicable, with the terms and conditions of this Agreement, including but not limited to, procuring and maintaining insurance coverage as required herein and which shall name City as an additional insured. 17. Compliance With All Laws. Artist shall fully comply with all applicable local, state and federal rules, laws, regulations and ordinances pertaining to the performance of the Services required hereunder, including but not limited to, the California Building Standards Code as in effect in the City, the Americans with Disabilities Act, and any laws and regulations related to any copyright, patent, trademark or other intellectual property right involved in performance of the Services. Artist's failure to comply with any law(s) or regulation(s) applicable to the performance of the Services hereunder shall constitute a material breach of this Agreement. To the extent that any other government agency or entity provides compensation for any Services, Artist shall comply with all rules and regulations applicable to such fiscal assistance. 18. Prevailing Wages. This Agreement is subject to the requirements of the California Prevailing Wage Law, California Labor Code Section 1720 et seq., and the Services as described in Exhibit A -1 will be performed in accordance with all applicable requirements of the California Prevailing Wage Law, including, but not limited to, all applicable requirements contained in Exhibit A -1, which is attached to and made a part of this Agreement. 19, Living Wage Ordinance. Without limiting the foregoing Section 17, Artist shall comply fully with all applicable requirements of Petaluma Municipal Code, Chapter 8.36, Living Wage (the "Living Wage Ordinance "), as the same may be amended from time to time. Upon the City's request Artist shall promptly provide to the City documents and information verifying Artist's compliance with the requirements of the Living Wage Ordinance, and shall within fifteen (15) calendar days of the Effective Date of this Agreement, notify each of its affected employees as to the amount of wages and time off that are required to be provided to them pursuant to the Living Wage Ordinance. The Acknowledgement and Certification Pursuant to City of Petaluma Living Wage Ordinance, attached to this Agreement at Exhibit A -3, shall be a part of this Agreement for all purposes, and Artists that are subject to Living Wage Ordinance requirements, as determined by the City, must provide a properly completed Exhibit A -3 in accordance with the requirements of the Living Wage Ordinance. Artist's noncompliance with the applicable requirements of the Living Wage Ordinance shall constitute cause for City's termination of this Agreement pursuant to Section 4 hereof. 20. Discrimination. During the performance of this Agreement, Artist shall not discriminate against any employee or applicant for employment because of race, religion, creed, color, Resolution No. 2016 -123 N.C.S. Exhibit A to the Resolution national origin, ancestry, gender, sexual orientation, age or physical or mental disability in violation of any applicable law. 21. Notice. Except as otherwise specified in this Agreement, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other Party in accordance with this Section. All such notices shall be sent by: (i) personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt; (iii) nationally recognized overnight courier, with charges prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery is confirmed by the delivery service; or (iv) facsimile transmission, in which case notice shall be deemed delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first -class or certified mail or by overnight delivery, or (b) a transmission report is generated reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered to have been received on the next business day if it is received after 5:00 p.m. recipient's time or on a nonbusiness day. City: City Clerk City of Petaluma Post Office Box 61 Petaluma, California 94953 Phone: (707) 778 -4360 Fax: (707) 778 -4554 Email: citycler @ci.petaluma.ca.us And: City of Petaluma — Planning Division Heather Hines, Planning Manager 11 English Street Petaluma, California 94952 Phone: (707) 778 -4316 Fax: (707) 778 -4498 Email: hhines @ci.petaluma.ca.us Artist: Brian Goggin 499 Alabama Street Studio #123 San Francisco, California 94110 Phone: (415) 377 -7549 Fax: N/A Email: gog @metaphorm.org Resolution No, 2016 -123 N.C.S. Exhibit A to the Resolution 22. Ownership of Documents. All original papers, documents or computer material on disk or microfilm, and copies thereof, produced as a result of this Agreement, shall be the property of City and may not be used by Artist without the written consent of City. Copies of such documents or papers shall not be disclosed to others without the written consent of the City Manager or his or her designated representative. 23. Indemnification. To the maximum extent permitted by law, Artist shall, at its own expense, indemnify, defend with counsel acceptable to the City, (which acceptance will not be unreasonably withheld), and hold harmless City and its officers, officials, employees, agents and volunteers ( "Indemnitees ") from and against any and all alleged liability, loss, damage, claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, civil penalties and fines, expenses and costs (including, without limitation, claims expenses, attorney's fees and costs and fees of litigation) (collectively, "Liability ") of every nature, whether actual, alleged or threatened, arising out of or in connection with the Services or Artist's failure to comply with any of the terms of this Agreement, regardless of any fault or alleged fault of the Indemnitees. The Artist's obligation to indemnify, defend and hold harmless under this provision shall not be excused because of the Artist's inability to evaluate Liability, or because the Artist evaluates Liability and determines that the Artist is not or may not be liable. The Artist must respond within 30 calendar days to any tender for defense and indemnity by the City, unless the time for responding has been extended by an authorized representative of the City in writing. If the Artist fails to accept tender of defense and indemnity within 30 calendar days, in addition to any other remedies authorized by law, so much of the money due or that may become due the Artist under this Agreement as shall reasonably be considered necessary by the City, may be retained by the City until disposition has been made of the matter subject to tender, or until the Artist accepts the tender, whichever occurs first. In the event that the City must file responsive documents in a matter tendered to Artist prior to Artist's acceptance of tender, Artist agrees to fully reimburse all costs, including but not limited to attorney's fees and costs and fees of litigation, incurred by the City in filing such responsive documents. The Artist waives any and all rights to express or implied indemnity against the Indemnitees concerning any Liability of the Artist arising out of or in connection with the Services or Artist's failure to comply with any of the terms of this Agreement. The Artist's responsibility of such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law. The defense and indemnification obligations of this Agreement are undertaken to, and shall not in any way be limited by, the insurance obligations contained in this Agreement. Notwithstanding the foregoing, to the extent this Agreement is a "construction contract" as defined by California Civil Code Section 2783, as may be amended from time to time, Artist's duty to indemnify under this provision shall not apply when to do so would be prohibited by California Civil Code Section 2782, as may be amended from time to time. Notwithstanding the foregoing, to the extent that the Services include design professional services subject to California Civil Code Section 2782.8, as may be amended from time Resolution No, 2016 -123 N.C.S. Exhibit A to the Resolution to time, Artist's duty to indemnify shall only be to the maximum extent permitted by California Civil Code Section 2782.8. 24. Insurance. Artist shall comply with the "Insurance Requirements for Artists" in Exhibit A -2, attached hereto and incorporated herein by reference. 25. Amendment. This Agreement may be amended only by a written instrument executed by both Parties. 26. Litigation. If litigation ensues which pertains to the subject matter of Artist's services hereunder, Artist, upon request from City, agrees to testify therein at a reasonable and customary fee. 27. Construction. This Agreement is the product of negotiation and compromise on the part of both Parties and that the Parties agree that, notwithstanding Civil Code section 1654, any uncertainty in the Agreement shall not be construed against the drafter of the Agreement. 28, Governing Law; Venue. This Agreement shall be enforced and interpreted under the laws of the State of California and the City of Petaluma. Any action arising from or brought in connection with this Agreement shall be venued in a court of competent jurisdiction in the County of Sonoma, State of California. 29. Non - Waiver. The City's failure to enforce any provision of this Agreement or the waiver thereof in a particular instance shall not be construed as a general waiver of any part of such provision. The provision shall remain in full force and effect. 30. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 31. No Third Party Beneficiaries. The Parties do not intend to create, and nothing in this Agreement shall be construed to create any benefit or right in any third party. 32. Mediation. The Parties agree to make a good faith attempt to resolve any dispute arising out of this Agreement through mediation prior to commencing litigation. The Parties shall mutually agree upon the mediator and shall divide the costs of mediation equally. 33. Artist's Books and Records. A. Artist shall maintain any and all ledgers, books of accounts, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to the City for a minimum period of three (3) years or for any longer period required by law, from the date of final payment to Artist pursuant to this Agreement. B. Artist shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years or for any longer Resolution No. 2016 -123 N.C.S. Exhibit A to the Resolution period required by law, from the date of termination or completion of this Agreement. C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Manager, City Attorney, City Finance Director, or a designated representative of these officers. Copies of such documents shall be provided to the City for inspection at Petaluma City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Artist's address indicated for receipt of notices in this Agreement. D. Where City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Artist's business, City may, by written request by any of the above -named officers, require that custody of the records be given to the City and that the records and documents be maintained in Petaluma City Hall. Access to such records and documents shall be granted to any party authorized by Artist, Artist's representatives, or Artist's successor in interest. 34. Headings. The headings used in this Agreement are for convenience only and are not intended to affect the interpretation or construction of any provisions herein. 35. Survival. All obligations arising prior to the termination or expiration of this Agreement and all provisions of this Agreement allocating liability between City and Artist shall survive the termination or expiration of this Agreement. 36. Entire Agreement. This Agreement, including the exhibits attached hereto and incorporated herein, constitutes the entire agreement between the Parties with respect to the Services, and supersedes all prior agreements or understandings, oral or written, between the Parties in this regard. IN WITNESS WHEREOF, the parties hereto have executed this document the day, month and year first above written. CITY OF PETALUMA City Manager ATTEST: City Clerk APPROVED AS TO FORM: ARTIST By Name Title Address City State Zip City Attorney Taxpayer LD, Number Resolution No. 2016 -123 N.C.S. Exhibit A to the Resolution Petaluma Business Tax Certificate Number Resolution No. 2016 -123 N.C.S.