HomeMy WebLinkAbout20 - Phase III of the Sculpture Exhibition in Civic Center ParkO��EWP0 @ CITY OF
tu: NEWPORT BEACH
FORN'" City Council Staff Report
April 11, 2017
Agenda Item No. 20
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Tim Hetherton, Library Services Director - 949-717-3801,
thetherton@newportbeachca.gov
PREPARED BY: Tim Hetherton, Library Services Director,
thetherton@newportbeachca.gov
PHONE: 949-717-3810
TITLE: Contract with Arts Orange County to Manage Phase III of the
Sculpture Exhibition in Civic Center Park
ABSTRACT:
In September 2016, the Newport Beach City Council authorized Phases III and IV of the
Sculpture Exhibition in Civic Center Park. A Request for Proposals (RFP) was issued in
October 2016 and a panel consisting of the Library Services Director and members of the
City Arts Commission selected Arts Orange County to. manage the project. The
Commission requests appropriating $155,731 from the Visit Newport Beach Arts
Contributions for Phase III. This amount includes both project coordination, management
fees and honorariums for the sculptors loaning their work to the City.
RECOMMENDATION:
a) Determine that the action is exempt from the California Environmental Quality Act
CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines
because it will not result in a physical change to the environment, directly or indirectly;
b) Approve Budget Amendment 17BA-030 appropriating $155,731.00 from the Visit
Newport Beach Arts Contributions and expensing to 01060603-811008 for the project
management contract and to fund artist honorariums for Phase III; and
c) Approve a contract with Arts Orange County for project management of Phase III of
the Sculpture Exhibition in Civic Center Park for a total amount not to exceed
$105,731.00, and authorize the Mayor and City Clerk to sign the agreement.
FUNDING REQUIREMENTS:
Approval of the Budget Amendment will provide adequate funding for the project. Funding
is proposed from the Visit Newport Beach Arts Contributions to be appropriated to the
Professional & Technical Services account number 01060603-811008. The balance of
the funds budgeted in, this amendment will be used for artist honorariums.
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Contract with Arts Orange County to Manage Phase III of the
Sculpture Exhibition in Civic Center Park
April 11, 2017
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DISCUSSION:
The Sculpture Exhibition in Civic Center Park is an integral feature of the Newport Beach
Civic Center project. The Civic Center Park project, which turned nearly half a million
square feet of undeveloped land into a new public park, was designed by renowned
landscape architectural firm Peter Walker and Partners (PWP). PWP developed a master
plan for art in the park, and identified various spots in the park where art, particularly
sculpture, could be exhibited. The Arts Commission determined that a rotating exhibition
was an optimal approach to bring sculpture to the City in a cost-efficient manner. On July
23, 2013, the Newport Beach City Council authorized the City Arts Commission and City
staff to implement a temporary sculpture exhibit in Civic Center Park. The City Council
approved the installation of 10 sculptures in Phase I of the project and an additional 10
sculptures in Phase II. The sculptures installed in year one were displayed for two years
and returned to the artists in 2016. Those installed in year two, or Phase II, will be
removed in 2017.
The acquisition program that the Arts Commission developed for the exhibition created a
model in which pieces are loaned for a two year period. Sculptors of works chosen for
the exhibition are provided with a small honorarium to loan their work to the City. The City
is responsible for installing the art, while sculptors are responsible for the maintenance
and repair of their work.
Admission is free and the exhibition continues to be enjoyed by a wide demographic,
including school children, the local community and visitors from Southern California and
beyond. In essence, the exhibition has become a "museum without walls" that offers the
temporary display of public art that allows the City to avoid the obligation and expense of
owning public art. The City sought to have a well-balanced representation of public art
that would appeal to a diverse audience of all ages, while including artistic merit,
durability, practicality and site responsiveness as criteria in the selection. The rotational
nature of the exhibit ensures that residents and guests are exposed to a variety of work.
Guests to the park are encouraged to download the free Sculpture Exhibition in Civic
Center Park app to take a roughly 30 -minute guided tour through the 14 -acre park. Since
the exhibition's grand opening in 2014, the app has been downloaded over 600 times.
Anecdotally, the sight of both groups and individuals strolling through the park and
enjoying the exhibition has become common.
The City Arts Commission suggests that the exhibition is a valuable asset to the
community and the local economy. A temporary/rotational exhibit of this nature is a first
for Orange County, and has proven to be a popular amenity that has garnered significant
favorable media coverage (including a cover story in COAST magazine and coverage
by the Orange County Register and Daily Pilot). The sculpture garden has become an
integral element to the enjoyment of the park by residents and guests throughout the
year. In 2015, the Sculpture Exhibition in Civic Center Park was awarded "Best Public
Art" from OC Weekly for the second consecutive year and the "museum without walls"
has become a favored destination for residents and guests interested in quality public art.
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Contract with Arts Orange County to Manage Phase III of the
Sculpture Exhibition in Civic Center Park
April 11, 2017
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Following the issuance of a request for proposals in the fall of 2016, the City Arts
Commission selected Arts Orange County (Arts OC) to provide public art coordination
and site management services for Phase III of the Civic Center Park sculpture exhibition.
Arts Orange County was established in 1995 as the nonprofit, countywide arts council of
Orange County, California. Arts Orange County has been recognized by the California
Arts Council as a model agency based on the quality of its work, and has served as the
officially -designated arts agency and state -local partner of the County of Orange since its
inception.
The Arts OC project team includes Display Inc., a company that specializes in art
installation. Arts Orange County successfully managed both Phase I and II of the
exhibition and has strong working relationships with the City Arts Commission and City
staff.
PRIVATE SUPPORT:
During Phases III and IV, the City Arts Commission envisions that the Newport Beach
Arts Foundation (NBAF) undertake a fundraising effort to finance a portion of the
Sculpture Exhibition, with an even greater share for Phases V and beyond, should those
phases be desired by the Commission and City Council. The City Arts Commission hopes
to leverage the Sculpture Exhibition in Civic Center Park's status as the signature public
art program of the City Arts Commission to raise private money, expand the membership
of the NBAF or another support group, and provide an opportunity for the community to
invest in City arts programming. The following elements are critical in developing private
support for the project:
• Use the Sculpture Exhibition in Civic Center Park as the primary focus of arts
fundraising in the City.
• Provide sponsorship opportunities, and opportunities for community advocacy for
the sculptures in the Exhibition and encourage business, corporate and individual
sponsorship for each of the 20 works of art.
• Continue to use the rotation art in the Sculpture Exhibition in Civic Center Park as
a means to promote cultural tourism as a source of revenue.
• Make the Sculpture Exhibition in Civic Center Park available for public events to
engender the financial support of the Sculpture Exhibition, as a Civic Center
amenity/attraction for private local events that generate revenue for the City.
• Create a mechanism in which private funds are matched with Council Policy 1-13
funds for subsequent phases of the exhibition.
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Contract with Arts Orange County to Manage Phase III of the
Sculpture Exhibition in Civic Center Park
April 11, 2017
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After the first two phases of the exhibition, some concerns were raised that there were
limited opportunities for public engagement. In response, the Arts Commission proposes
to increase public engagement in the project by offering residents opportunities to
become part of the selection process. This will be accomplished by integrating these
elements into the process:
• Hold one regular Arts Commission study session meeting where the public will be
invited to express their preferences for the submitted art prior to panel
consideration;
• Hold one curatorial selection panel meeting where public can express their
preferences;
• Devote one Arts Commission meeting for the public to express their opinion of the
panel's recommendations;
• Publicize opportunities for public participation in the entire process to the maximum
extent feasible.
Final review of the selections will be presented to City Council for approval.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Professional Services Agreement with Arts Orange County
Attachment B — Budget Amendment
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ATTACHMENT A
PROFESSIONAL SERVICES AGREEMENT
WITH ARTS ORANGE COUNTY FOR
PHASE III NEWPORT BEACH CIVIC CENTER SCULPTURE EXHIBIT ARTS
COORDINATION AND PROJECT MANAGEMENT SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 11th day of April, 2017 ("Effective Date"), by and between the CITY
OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and
ARTS ORANGE COUNTY, a California corporation ("Consultant"), whose address is
3730 South Susan Street, Suite 100, Santa. Ana, California 92704, and is made with
reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. On July 23, 2013, City Council authorized implementation of a temporary sculpture
exhibit with a maximum of ten sculptures in year one and an additional ten
sculptures in year two (Phase I and Phase ll). The total project time would be from
July 2013 through April 2017.
C. City desires to engage Consultant to provide Newport Beach Civic Center
Sculpture Exhibit arts coordination and project management services for Phase III
("Project").
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
E. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on March 31, 2020, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the .services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
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or "Work"). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Consultant shall perform the Services in accordance with the schedule included in
Exhibit A. In the absence of a specific schedule, the Services shall be performed to
completion in a diligent and timely manner. The failure by Consultant to strictly adhere to
the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely
manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 . Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of Billing
Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed One Hundred Five
Thousand Seven Hundred Thirty One Dollars and 00/100 ($105,731.00), without prior
written authorization from City. No billing rate changes shall be made during the term of
this Agreement without the prior written approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and/or the specific
task in the Scope of Services to which it relates, the date the Services were performed,
the number of hours spent on all Work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar
days after approval of the monthly invoice by City staff.
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4.3 City shall reimburse Consultant only for those costs or expenses specifically
identified in Exhibit B to this Agreement or specifically approved in writing in advance by
City.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Richard Stein to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project Manager
and any other assigned staff shall be equipped with a cellular phone to communicate with
City staff. The Project Manager's cellular phone number shall be provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Library Services Department. City's
Library Services Director or designee shall be the Project Administrator and shall have
the authority to act for City under this Agreement. The Project Administrator shall
represent City in all matters pertaining to the Services to be rendered pursuant to this
Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule.
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8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Consultant certifies that the Work conforms to the
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
8.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties") from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement, any
Work performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Consultant's presence or activities conducted on
the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions
of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable, or any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' fees in any action on or to enforce
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the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Consultant or its employees.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
shall have the responsibility for and control over the means of performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
of the performance of the Work or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance, Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
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15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Consultant, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or
joint -venture or syndicate or co -tenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of. City to pay or to see to the payment of any monies due to any such subcontractor
other than as otherwise required by law. City is an intended beneficiary of any Work
performed by the subcontractor for purposes of establishing a duty of care between the
subcontractor and City. Except as specifically authorized. herein, the Services to be
provided under this Agreement shall not be otherwise assigned, transferred, contracted
or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Consultant or any
other party. Additionally, all material posted in cyberspace by Consultant, its officers,
employees, agents and subcontractors, in the course of implementing this Agreement,
shall become the exclusive property of City, and City shall have the sole right to use such
materials in its discretion without further compensation to Consultant or any other party.
Consultant shall, at Consultant's expense, provide such Documents, including all logins
and password information to City upon prior written request.
17.2 Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for reuse by
City or others on any other project. Any use of completed Documents for other projects
and any use of incomplete Documents without specific written authorization from
Consultant will be at City's sole risk and without liability to Consultant. Further, any and
all liability arising out of changes made to Consultant's deliverables under this Agreement
by City or persons other than Consultant is waived against Consultant, and City assumes
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full responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such changes.
17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including costs,
contained in Consultant's Documents provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Consultant
under this Agreement. All such records and invoices shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Consultant shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Consultant
under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall not
discontinue Work as a result of such withholding. Consultant shall have an immediate
right to appeal to the City Manager or designee with respect to such disputed sums.
Consultant shall be entitled to receive interest on any withheld sums at the rate of return
that City earned on its investments during the time period, from the date of withholding of
any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would have
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resulted if there were not errors. or omissions in the Work accomplished by Consultant,
the additional design, construction and/or restoration expense shall be borne by
Consultant. Nothing in this Section is intended to limit City's rights under the law or any
other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
24.2 If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate termination
of this Agreement by City. Consultant shall indemnify and hold harmless City for any and
all claims for damages resulting from Consultant's violation of this Section.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Tim Netherton, Library Services Director
Library Services Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Richard Stein
Arts Orange County
3730 South Susan Street, Suite 100
Santa Ana, CA 92704
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26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Consultant's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Consultant in writing as unsettled at the time of its final request for payment.
Consultant and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Consultant shall be required to file any claim Consultant may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination, Consultant
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
28. PREVAILING WAGES
If any of the Work contemplated under the Agreement is considered a "public work",
pursuant to the applicable provisions of the Labor Code of the State of California, including
but not limited to Section 1720 et seq., not less than the general prevailing rate of per,diem
wages including legal holidays and overtime Work for each craft or type of workman shall be
paid to all workmen employed on such. In accordance with the California Labor Code
(Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general
prevailing rate of per diem wages in the locality in which the Work is to be performed for each
craft, classification, or type of workman or mechanic needed to execute the Agreement. A
copy of said determination is available by calling the prevailing wage hotline number (415)
703-4774, and requesting one from the Department of Industrial Relations. The Contractor
is required to obtain the wage determinations from the Department of Industrial Relations and
post at the job site the prevailing rate or per diem wages. It shall be the obligation of the
Arts Orange County Page 9
20-13
Contractor or any subcontractor under him/her to comply with all State of California labor
laws, rules and regulations and the parties agree that the City shall not be liable for any
violation thereof.
29. STANDARD PROVISIONS
29.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
29.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental,
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
29.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
29.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
29.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
29.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
29.7 Amendments. This Agreement may be modified or. amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
29.8 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.
29.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
Arts Orange County Page 10
20-14
29.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or . applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex,. sexual orientation,
age or any other impermissible basis under law.
29.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
29.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
Arts Orange County Page 11
20-15
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM;
CITY ATTORNEY'S OFFICE
Date: 5';1c'i7
By.
Aaron C. HarpD
City Attorney
ATTEST:
Date:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Devin Muldoon
Mayor
CONSULTANT: Arts Orange County, a
California corporation
Date:
By By:
Leilani 1. Brown Richard Stein
City Clerk Chief Executive Officer
Susan K. Hori
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B -- Schedule of Billing Rates
Exhibit C — Insurance Requirements
Arts Orange County Page 12
20-16
EXHIBIT A
SCOPE OF SERVICES
1. Project Overview
Consultant shall provide Public Art Coordination and Site Management Services for
the Newport Beach Civic Center Outdoor Sculpture Park.. Under general direction,
the Consultant shall assist in the coordination and implementation of the Public Art
Sculpture Program for the City of Newport Beach. Consultant shall report directly to
the Library Services Director or his/her designee, and provide direct support in
administering and managing all aspects of the Public Art Sculpture Program.
2. Installation and De -Installation Schedule:
Installation/De-Installation Project
Anticipated Schedule
Installation of Phase 3 Sculptures
October 2017
De -Installation of Phase 2 Sculptures
August 2017
De -Installation of Phase 3 Sculptures
August 2019
3. Consultant Responsibilities and Provisions
Consultant shall:
3.1 Be responsible for overseeing and managing the planning, selection, and
installation of public art for the Sculpture Exhibit;
3.2 Serve in an advisory capacity on public art best practices;
3.3 Facilitate orientation meetings to establish sculpture exhibition goals and
expectations, and appoint artist selection panel;
3.4 Coordinate schedules and plans with City representatives;
3.5 Draft forms such as: master calendar of project, list of potential artists and art
registries;
3.6 Managing the Call for Artists Entry and ensure that it reaches the largest
number of artists possible;
3.7 Monitor the artists' submissions for completeness, and communicate with
artists as necessary;
3.8 Coordinate the art selection process;
3.9 Present artist entries to the City of Newport Beach Arts Commission for
evaluation;
3.10 Work with the City and the City of Newport Beach Arts Commission to present
the selected pieces to the City Council for approval;
Arts Orange County Page A-1 20.17
3.11 Provide oversight of all activities associated with artists' work, including
contracts, artwork shipment, installation and de -installation, budgets and
schedules;
3.12 Developing and implementing a Media Plan for the Public Art Sculpture
Exhibit;
3.13 Coordinate with the City of Newport Beach Public Works Department for
matters related to site construction and infrastructure feasibility;
3.14 Supervise the design and installation of any sculpture pads that may be
required;
3.15 Oversee installation & de -installation of artworks, including obtaining all
necessary permits;
3.16 Manage schedule and payments to the installation team;
3.17 Advise City staff on identification plaques for individual artworks, sculpture
guide, materials for docents and educational kit;
3.18 Ensure that all administrative and operational procedures related to the Public
Art Sculpture Exhibit are in accordance with City policies and procedures;
3.19 Facilitate communication with the artist and City staff for recording MyNB
audio guide; and
3.20 Supervise installation of City commissioned identification plaques.
4 Community Input
The Arts Commission proposes to increase public engagement in the project by
offering residents opportunities to become part of the selection process. This will be
accomplished by integrating these elements into the process:
4.1 Creating an online survey in which the public can express their preferences
for the art;
4.2 Holding one regular Arts Commission study session meeting where the public
will be invited to express their preferences for the submitted art prior to panel
consideration;
4.3 Holding one curatorial selection panel meeting where public can express their
preferences;
4.4 Devoting one Arts Commission meeting for the public to express their opinion
of the panel's recommendations;
Arts Orange County Page A-2 20-18
4.5 Publicizing opportunities for public participation in the entire process to the
maximum extent feasible.
The City Arts Commission is committed to taking this new public input into.
consideration in Phases III and IV of the Sculpture Garden, with a specific goal of
adding elements that engender the most public support.
Arts Orange County Page A-3 20-19
EXHIBIT B
SCHEDULE OF BILLING RATES
Phase
Item
Detail
Cost
3
Installation of Phase 3 Sculptures
10 Sculptures
$19,542.00
3
Site Preparation
3 Concrete Bases
$5,775.00
3
Project Management & Curation
Management Fee
$30,000.00
3
Contingency
$5,000.00
Phase Sub -Total:
$60,3,17.00
. ... ... .
. .........
2
De -Installation of Phase 2 Sculptures
10 Sculptures
$14,832.00
2
Project Management & Curation
Management Fee
$7,500.00
Phase Sub -Total:
$22,332.00
3
De -Installation of Phase 3 Sculptures
10 Sculptures
$15,582.00
3
Project Management & Curation
Management Fee
$7,500.00
Phase Sub -Total:
1 $23,082.00
I PROJECT TOTAL: 1 $105,731.00 1
Arts Orange County Page B-1 20-20
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with.the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
Arts Orange County Page C-1 20.21
D. Professional Liability (Errors & Omissions) Insurance. Consultant shall
maintain professional liability insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of
one million dollars ($1,000,000) per claim and two million dollars
($2,000,000) in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the Effective Date of this Agreement and
Consultant agrees to maintain continuous coverage through a period no
less than three years after completion of the Services required by this
Agreement.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but not
including professional liability, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers
and employees shall be included as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
Arts Orange County Page C-2 20.22
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days' advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
D. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Consultant maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
E. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Consultant's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Consultant or reimbursed
by Consultant upon demand.
G. Timely Notice of Claims. Contractor shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Contractor's
performance under this Contract, and that involve or may involve coverage
under any of the required liability policies. City assumes no obligation or
liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve City.
H. Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
Arts Orange County Page C-3 20-23
ATTACHMENT B City of Newport Beach
BUDGET AMENDMENT
2016-17
EFFECT ON
BUDGETARY FUND BALANCE:
Increase in Budgetary Fund Balance
X
Increase Revenue Estimates
X
Increase Expenditure Appropriations AND
No effect on Budgetary Fund Balance
ONE-TIME?
Transfer Budget Appropriations
SOURCE:
No
from existing budget appropriations
from additional estimated revenues
X
from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
NO. BA- 17BA-030
AMOUNT:1 $155,731.00
to increase expenditure appropriations from the Visit Newport Beach arts contribution to fund a contract with Arts OC
to manage Phase III of the Sculpture Exhibition in Civic Center Park..
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Object
010 300000
REVENUE ESTIMATES
Orq
EXPENDITURE APPROPRIATIONS
Org Number
Object Number
Org Number
Object Number
Org Number
Object Number
Signed: 4A
Signed:
Description
General Fund - Fund Balance
Object Description
Description
01060603 Library Cultural Arts
811008 Professional Services
Admi i9trAtive Approval: City
Signed:
City Council Approval: City Clerk
Amount
Debit
$155,731.00
Automatic
Credit
$155,731.00
Date
kin
Date
Date
20-24
Increase in Budgetary Fund Balance
X
Decrease in Budgetary Fund Balance
No effect on Budgetary Fund Balance
ONE-TIME?
[i]Yes
No
to increase expenditure appropriations from the Visit Newport Beach arts contribution to fund a contract with Arts OC
to manage Phase III of the Sculpture Exhibition in Civic Center Park..
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Object
010 300000
REVENUE ESTIMATES
Orq
EXPENDITURE APPROPRIATIONS
Org Number
Object Number
Org Number
Object Number
Org Number
Object Number
Signed: 4A
Signed:
Description
General Fund - Fund Balance
Object Description
Description
01060603 Library Cultural Arts
811008 Professional Services
Admi i9trAtive Approval: City
Signed:
City Council Approval: City Clerk
Amount
Debit
$155,731.00
Automatic
Credit
$155,731.00
Date
kin
Date
Date
20-24