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HomeMy WebLinkAbout08 - Contract to Manage Phase VI of the Sculpture Exhibition in Civic Center ParkQ �EwPpRT CITY OF O � z NEWPORT BEACH <,FORN'P City Council Staff Report July 28, 2020 Agenda Item No. 8 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 VI of the Sculpture Exhibition in Civic Center Park ABSTRACT: The Newport Beach City Arts Commission requests that City Council approve a contract with Arts Orange County for $91,436.00 for Phase VI of the Sculpture Exhibition in Civic Center Park. This amount includes both project coordination and management fees. 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; and b) Approve a contract with Arts Orange County for project management of Phase VI of the Sculpture Exhibition in Civic Center Park for a total amount not to exceed $91,436.00, and authorize the Mayor and City Clerk to sign the agreement. FUNDING REQUIREMENTS: There are sufficient funds in the Cultural Arts budget to fund Phase VI, budgeted at $135,000. Funds will be expended from the Sculpture Exhibition in Civic Center Park Phase VI account (Account No. 01060603-811059). The City has received a State of California Department of Parks and Recreation Local Assistance Specified Grant Funding in the amount of $500,000 for the Civic Center Park Sculpture Exhibition Phases V and VI, which will fully fund this project on a reimbursement basis. The grant funds from the State will also cover concrete repair and rehabilitation needs at the site. Projects funded by the State grant must be completed by December 31, 2021. 8-1 Contract with Arts Orange County to Manage Phase VI of the Sculpture Exhibition in Civic Center Park July 28, 2020 Page 2 DISCUSSION: The Sculpture Exhibition in Civic Center Park is an integral feature of the Newport Beach Civic Center project. The Civic Center Park project 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 City Arts Commission determined that a rotating exhibition was a pragmatic approach to bring sculpture to the City in a cost-efficient manner. The acquisition program that the City Arts Commission developed in 2013 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, not to exceed $5,000, 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. Pieces are rotated into the exhibition annually and displayed for two years. Phases overlap for a one-year period so that 20 pieces are typically on display. Admission is free and the exhibition continues to be enjoyed by residents and guests. 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 Arts Commission selects a well-balanced representation of public art appeals to a diverse audience, 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. 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. ARTS ORANGE COUNTY: The City Arts Commission requests that City Council approve a contract with Arts Orange County for $91,436.00 for Phase VI. This amount includes both project coordination and management fees, and is the same amount as contracted for Phase V. 8-2 Contract with Arts Orange County to Manage Phase VI of the Sculpture Exhibition in Civic Center Park July 28, 2020 Page 3 The City Arts Commission selected Arts Orange County (Arts Orange County) to provide public art coordination and site management services for Phases I, II, III, IV, and V of the Sculpture Exhibition in Civic Center Park after issuing Requests for Proposals in 2013 and 2016. Given their background experience and expertise, the reasonable cost, and their availability, staff is requesting a Professional Services Agreement to Arts Orange County for this work. 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 Orange County project team successfully managed all previous phases of the exhibition and has strong working relationships with the City Arts Commission and City staff. COMMUNITY INPUT: Since the exhibition's inception, the City Arts Commission has increased public engagement by offering residents opportunities to become part of the selection process. The following elements are integrated into the process: • All meetings of the Phase VI Sculpture Exhibition Ad Hoc Subcommittee will be held in public during the City Arts Commission's regular meetings; • The City Arts Commission will provide an online survey in which the public can vote for their favorite sculpture. The most popular pieces will be considered for the Exhibition, pending City Arts Commission review and final approval by City Council; • The City Arts Commission will hold one study session meeting where the public will be invited to express their preferences for the submitted art prior to panel consideration; • The City Arts Commission will hold a curatorial selection panel meeting where the public can express their preferences; • The City Arts Commission will devote one regular meeting for the public to express their opinion of the panel's recommendations; • The City Arts Commission and City staff will publicize opportunities for public participation throughout the entire process to the maximum extent feasible. 8-3 Contract with Arts Orange County to Manage Phase VI of the Sculpture Exhibition in Civic Center Park July 28, 2020 Page 4 PHASE VI SCHEDULE: Pending Council approval, Arts OC will open a call for entry early September 8. The call for entry will be distributed to multiple arts mailing lists and will be promoted in local media. The call for entry will close on December 8, and Arts OC will launch the online public survey on December 9. At that time, the City Arts Commission and the curatorial panel can also review and vote for submissions online. On January 10, the online public survey and Arts Commission review concludes. In January 2021, at a City Arts Commission meeting, the Commissioners and curatorial panel share their results and the public survey rankings. After a public hearing and input from the community, the Commission will approve of 10 works plus 3-5 alternates. In February 2021, at a regular City Council meeting, the selected works will be presented to City Council for final approval. Approved artists are then contracted, and Arts OC commences the installation of Phase VI and the deinstallation of Phase IV in May. The Grand Opening for Phase VI is scheduled for June 2021. 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. �[0��[�I1rev 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). ATTACHMENT: Attachment A — Professional Services Agreement with Arts Orange County RM ATTACHMENT A PROFESSIONAL SERVICES AGREEMENT WITH ARTS ORANGE COUNTY FOR SCULPTURE EXHIBITION — PHASE VI THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 28th day of July, 2020 ("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 17620 Fitch Avenue, Suite 255, Irvine, California 92614-6081, 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 (10) sculptures in year one and an additional ten (10) sculptures in year two (Phase I and Phase 11). The total project time, including de -installation of those sculptures, was estimated to be from July 2013 through April 2017. C. On April 11, 2017, City Council authorized implementation of installation of a temporary sculpture exhibit (Phase 111), which also included the de -installation of the Phase II sculptures by August 2017, and the de -installation of the Phase III sculptures by August 2019. D. On February 12, 2019, City Council authorized implementation of a temporary sculpture exhibit (Phase IV), which also included the de -installation of those sculptures by June 2021. E. On October 8, 2019, City Council authorized implementation of a temporary sculpture exhibit (Phase V), which also included the de -installation of those sculptures by May 2022. F. City desires to engage Consultant to provide Newport Beach Civic Center Sculpture Exhibit arts coordination and project management services for Phase VI, which will include the coordination of the installation of a maximum of ten (10) sculptures and the subsequent de -installation of those Phase VI sculptures by May 2023 ("Project"). G. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. H. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to 8-5 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 June 30, 2023, 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" 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 ail 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 Arts Orange County — Sculpture Exhibition Phase V1 Page 2 8-6 compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Ninety One Thousand Pour Hundred Thirty Six Dollars and 00/100 ($91,436.00), 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. 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. Arts Orange County — Sculpture Exhibition Phase VI Page 3 8-7 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. 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, Arts Orange County — Sculpture Exhibition Phase VI Page 4 s -s 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 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. Arts Orange County — Sculpture Exhibition Phase VI Page 5 8-9 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. 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, Arts Orange County — Sculpture Exhibition Phase VI Page 6 8-10 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 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. iE'1llarg=ll111*60l_1Wil tie] »".4VA1►1a]4if, l►111CA 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. Arts Orange County — Sculpture Exhibition Phase VI Page 7 8-11 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 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") and/or Government Code §§ 1090 et seq., which (1) require such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibit such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant shall conform to all requirements therein. 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. Arts Orange County — Sculpture Exhibition Phase VI Page 8 8-12 25.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: 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 17620 Fitch Avenue, Suite 255 Irvine, CA 92614-6081 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 Arts Orange County — Sculpture Exhibition Phase VI Page 9 8-13 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. STANDARD PROVISIONS 28.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 28.2 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. 28.3 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. 28.4 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. 28.5 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. 28.6 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. 28.7 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. 28.8 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. 28.9 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 — Sculpture Exhibition Phase VI Page 10 8-14 28.10 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. 28.11 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. 28.12 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 — Sculpture Exhibition Phase VI Page 11 8-15 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: � Itr CITY OF NEWPORT BEACH, a California municipal corporation Date: �B By: aCron . arp' 6'2i' Will O'Neill City A orney Mayor ATTEST: Date: Leilani I. Brown City Clerk CONSULTANT: Arts California corporation Date: Orange County, a By: Richard Stein President and Chief Executive Officer Date: By: Susan K. Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Hori Arts Orange County — Sculpture Exhibition Phase VI Page 12 8-16 EXHIBIT A SCOPE OF SERVICES Consultant shallprovidepublicartcoordination and site management servicesfor 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. 1. INSTALLATION AND DE -INSTALLATION SCHEDULE: Installation/De-installation Anticipated Schedule Project Installation of Phase VI Sculptures May 2021 De -Installation of Phase VI May 2023 Sculptures 2. CONSULTANT RESPONSIBILITIES AND PROVISIONS Consultant shall: 2.1 Be responsible for overseeing and managing the planning, selection, and installationof public art for the Sculpture Exhibit; 2.2 Serveinan advisory capacity on public art best practices; 2.3 Facilitate orientation meetings to establish sculpture exhibition goals and expectations, and appoint artist selection panel; 2.4 Coordinate schedules and plans with City representatives; 2.5 Draft forms such as: master calendar of project, list of potential artists and art registries; 2.6 Managing the Call for Artists Entry and ensure that it reaches the largest number of artists possible; 2.7 Monitor the artists' submissions for completeness, and communicate with artists as necessary; 2.8 Coordinate the art selection process; Arts Orange County — Sculpture Exhibition Phase VI Page A-1 8-17 2.9 Present artist entries to the City of Newport Beach Arts Commission for evaluation; 2.10 Work with the City and the City of Newport Beach Arts Commission to present the selected pieces tothe City Council for approval; 2.11 Provide oversight of all activities associated with artists' work, including contracts, artwork shipment, installation and de -installation, budgets and schedules; 2.12 Developing and implementing a Media Plan for the Public Art Sculpture Exhibit; 2.13 Coordinate with the City of Newport Beach Public Works Department for matters related to site construction and infrastructure feasibility; 2.14 Supervise the design and installation of any sculpture pads that may be required; 2.15 Oversee installation & de -installation of artworks, including obtaining all necessary permits; 2.16 Manage schedule and payments to the installation team; 2.17 Advise City staff on identification plaques for individual artworks, sculpture guide, materials for docents and educational kit; 2.18 Ensure that all administrative and operational procedures related to the Public Art Sculpture Exhibit are in accordance with City policies and procedures,- 2.19 rocedures; 2.19 Facilitate communication with the artist and City staff for recording MyNB audio guide; and 2.20 Supervise installation of City commissioned identification plaques. #Ii �19 ZHUwfifikqlhj11 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: 3.1 Creating an online survey in which the public can express their preferences for the art; Arts Orange County — Sculpture Exhibition Phase VI Page A-2 8-18 3.2 Holding one regular Arts Commission study session meeting where the public will be invited to express their preferences forthe submitted art prior to panel consideration; 3.3 Holding one curatorial selection panel meeting where public can express their preferences; 3.4 Devoting one Arts Commission meeting forthe public to express their opinion of the panel's recommendations; 3.5 Devoting one Arts Commission meeting for the public to express their opinion of the panel's recommendations; and 3.6 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 Phase VI of the Sculpture Garden, with a specific goal of adding elements that engender the most public support. Arts Orange County — Sculpture Exhibition Phase VI Page A-3 • EXHIBIT B SCHEDULE OF BILLING RATES 6 Installation of Phase 6 Sculptures 10 Sculptures $ 20,104.00 6 Site Preparation 5 Concrete pads $ 12,500.00 6 Project Management & Curation Management Fee $ 30,000.00 6 Contingency $ 5,000.00 Phase Sub -Total $ 67,604.00 6 De -installation of Phase 6 Sculptures 10 Sculptures $16,332.00 6 Project Management & Curation Management Fee $7,500.00 Phase Sub -Total $23,832.00 PROJECT TOTAL: $ 91,436.00 Arts Orange County — Sculpture Exhibition Phase VI Page B-1 8-20 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. 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 — Sculpture Exhibition Phase VI Page C-1 8-21 D. Professional Liabilit 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. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least Arts Orange County — Sculpture Exhibition Phase VI Page C-2 8-22 fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 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. Arts Orange County -- Sculpture Exhibition Phase VI Page C-3 8-23 G. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, 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 — Sculpture Exhibition Phase VI Page C-4 8.24