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Item 7 Staff Report Adopt Resolution Authorizing the Town Manager to Enter into an Agreement with Carol Huboi-Werry for Completion of the Main Street Bridge MuralCOUNCIL AGENDA REPORT DATE: MARCH 1, 2002 TO: MAYOR AND TOWN OUNCIL FROM: TOWN MANAGER SUBJECT: MEETING DATE: 3/18/02 ITEM NO. 7 ADOPT RESOLUTION AUTHORIZING THE TOWN MANAGER TO ENTER INTO AN AGREEMENT WITH CAROL HUBOI-WERRY FOR COMPLETION OF THE MAIN STREET BRIDGE MURAL RECOMMENDATION: Adopt the attached resolution authorizing the Town Manager to enter into an agreement with Carol Huboi-Werry, artist and project manager of the Main Street Bridge Mural. BACKGROUND: Painted on the base of the Main Street Bridge, the proposed mural would be the second art installation along the Los Gatos Creek Trail. The 20'x75' mural will depict a landscape of the Santa Clara valley incorporating indigenous plant life and depicting Ohlone Indians. Based on Carol Huboi-Werry's original proposal submitted in April 2000, the Town Council held a public hearing on November 6, 2000, and approved the Arts Commission recommendation to proceed with the project. Since then Town staff has: 1. Applied for and received project approval from the CalTrans Transportation Art Committee. 2. Obtained an Encroachment Permit from the State Department of Transportation. 3. Submitted two grant applications and received a $1,000 grant from the Santa Clara County Youth Task Force. 4. Met with Parks and Public Works staff, the artist, and the Arts Commission Chair to assess site, security, and materials needs and to determine a project work plan. PREPARED BY: Regina Falk 1munity Services Director Reviewed by: Of Attorney Clerk 3Ci Finance Community Development Revised: 3/7/02 3:18 pm Reformatted: 5/30/01 PAGE 2 MAYOR AND TOWN COUNCIL SUBJECT: MAIN STREET BRIDGE MURAL PROJECT March 1, 2002 DISCUSSION: Due to the project's location on the Los Gatos Creek Trail and its exposure to vandalism, it was concluded that the project should be completed as quickly as possible and the mural should be treated with an anti -graffiti coating upon completion. This will require additional materials (paint sprayer, generator, scaffolding, anti -graffiti paint) not included in the original materials list. Despite the artist's ability to obtain discounts from all of her vendors, the expanded materials and equipment rental expenses have increased the budget to $8000. The artist's fees have remained at $3,000, the materials budget has increased from $1,000 to $4,000. We anticipate the project will cost $7,000 if completed in four months, but the project may need to be extended due to poor weather or lack of volunteers. Therefore, the $8,000 includes a $1,000 contingency to extend the equipment rental. Staff met with the artist to discuss the increased budget and the magnitude of the project. It was decided that the mural could be centered and the background expanded. Because the background requires less detail, it would help assure project completion within the four months allowed; thereby reducing the likelihood of needing to use the contingency dollars for equipment rental. Both the revised budget and the modifications to the mural were approved by the Arts Commission. Execution of an agreement with Carol Huboi-Werry is necessary for this project to proceed. CONCLUSION: Accepting the revised budget and entering into an agreement with Carol Huboi-Werry will allow the project to proceed and result in the second installation of public art on the Los Gatos Creek Trail. ENVIRONMENTAL ASSESSMENT: The mural project is not a project defined under CEQA, and no further action is required. FISCAL IMPACT: The mural project will be funded as follows: AMOUNT SOURCE ACCOUNT $4,000 Town Community Grant 8040-72000 $1,000 County Youth Task Force Grant 8070-48730 $4,000 Town allocation for Arts projects 8070-72000 Attachments: Resolution to Execute Agreement with Carol Huboi-Werry with Agreement (Exhibit A) Distribution: Arts Commission Art Selection Panel RF:SB .,.. f TACHMENT 1 RESOLUTION RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS AUTHORIZING THE TOWN MANAGER TO EXECUTE AGREEMENT WITH CAROL HUBOI-WERRY FOR THE MAIN STREET BRIDGE MURAL PROJECT WHEREAS, the Town Council approved the installation of the Main Street Bridge Mural; and WHEREAS, the Town of Los Gatos has received Cal Trans Transportation Art Committee approval and an Encroachment Permit from the State of California Department of Transportation; and WHEREAS, the Town Council finds Carol Huboi-Werry is fully qualified to serve as artist/project manager for the Main Street Bridge Mural Project. NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES HEREBY RESOLVE AS FOLLOWS: That the Town Manager is authorized to execute the attached agreement (Exhibit A) with Carol Huboi-Werry to serve as the artist/project manager for the Main Street Bridge Mural Project. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California, held on by the following vote: COUNCIL MEMBERS: AYES: NAYS: ABSENT: ABSTAIN: SIGNED: MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: CLERK OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA fl rFtCE OF THE OwN CLEEL. .AGR 0.;?, AGREEMENT FOR MURAL ART CONSULTAN OERVICES z r (jDz --;46 THIS AGREEMENT is entered into this day of - - -2002; -by- and between the Town of Los Gatos, State of California, herein called the "Town", and Carol Ann Huboi-Werry, engaged in providing professional mural art consulting services, herein called the "Consultant". RECITALS A. The Town is considering undertaking activities to paint a mural on the Main Street Bridge in Los Gatos. The mural project will recreate a landscape of Santa Clara Valley as it might have been before it was settled by Europeans. It will show the open spaces, incorporating indigenous plant life and depicting Ohlone Indians. It will be painted onto the base of the bridge under Main Street and over Highway 17, and visible only from the Los Gatos Creek Trail. The mural will replace the current graffiti -covered surface. B. The Town desires to engage a professional mural art Consultant to provide consulting services to lead the project and to involve local school children in its completion, because of Consultant's experience and qualifications to perform the desired work. C. The Consultant represents and affirms that it is qualified and willing to perform the desired work pursuant to this Agreement. AGREEMENTS NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS: 1. Scope of Services. The Consultant shall provide the services listed in Exhibit A, Scope of Services, hereafter referred to as Exhibit A and incorporated herein by reference. 2. Time of Performance. The services of the Consultant are to commence upon the execution of this Agreement and issuance of a Town purchase order, with completion of the program by June 30, 2002. This agreement may be extended for one year through June 30, 2003, upon mutual written agreement of the parties as evidenced by an amendment approved in the same manner as this Agreement. 3. Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Consultant represents and warrants to Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice its profession. Consultant represents and warrants to Town that Consultant shall, at its sole cost and Revised: March 6, 2002 N:\CSD\ART\mainmuralagt.wpd Page 1 of 7 expense, keep in effect or obtain at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice its profession. Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos. 4. Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. 5. Information/Report Handling. All documents furnished to Consultant by the Town and all reports and supportive data prepared by the Consultant under this Agreement are the Town's property and shall be delivered to the Town upon the completion of Consultant's services or at the Town's written request. All reports, information, data, and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential until released by the Town to the public, and the Consultant shall not make any of the these documents or information available to any individual or organization not employed by the Consultant or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating a defined project, and Town's use of the information contained in the reports prepared by the Consultant in connection with other projects shall be solely at Town's risk, unless Consultant expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Consultant which is and has been confirmed in writing by Consultant to be a trade secret of Consultant. 6. Compensation. Compensation for Consultant's professional services shall not exceed that noted in Exhibit A, and payment shall be based upon Town approval of each task. Payment shall be net thirty (30) days. Billing shall be accompanied by a detailed explanation of the work performed by whom at what rate and on what date. Also, plans, specifications, documents or other pertinent materials shall be submitted for Town review, even if only in partial or draft form. All invoices and statements to the Town shall reference the Town's purchase order number and be addressed as follows: Invoices: Town of Los Gatos Attn: Accounts Payable P.O. Box 655 Los Gatos, CA 95030 Statements: Town of Los Gatos Attn: Finance Department P.O. Box 655 Los Gatos, CA 95030 7. Availability of Records. Consultant shall maintain the records supporting this billing for not less than three years following completion of the work under this Agreement. Consultant shall make these records available to authorized personnel of the Town at the Consultant's Revised: March 6, 2002 N:\CSDWRT\mainmuralagt.wpd Page 2 of 7 offices during business hours upon written request of the Town. 8. Project Manager. The Project Manager for the Consultant for the work under this Agreement shall be Carol Ann Huboi-Werry. 9. Assignability and Subcontracting. The services to be performed under this Agreement are unique and personal to the Consultant. No portion of these services shall be assigned or subcontracted without the written consent of the Town. 10. Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to: To Town: Town of Los Gatos Attn: Regina Falkner P.O. Box 949 Los Gatos, CA 95030 To Consultant: Carol Ann Huboi-Werry 2028 Via D'Este Campbell, CA 95008 or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town. 11. Independent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an agent or employee of the Town. As an independent contractor he/she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). With prior written consent, the Consultant may perform some obligations under this Agreement by subcontracting, but may not delegate ultimate responsibility for performance or assign or transfer interests under this Agreement. Consultant agrees to testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters at its then current hourly rates of compensation, unless such litigation is brought by Consultant or is based on allegations of Consultant's negligent performance or wrongdoing. 12. Conflict of Interest. Consultant understands that its professional responsibilities is solely to the Town. The Consultant has and shall not obtain any holding or interest within the Town of Los Gatos. Consultant has no business holdings or agreements with any individual member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In addition, Consultant warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest should it discover it has done so and shall, at the Town's sole discretion, divest itself of such Revised: March 6, 2002 N:\CSD\ART\mainmural agt.wpd Page 3 of 7 interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person, Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship. 13. Mural Ownership. The Consultant acknowledges and accepts the ownership of the mural by the State of California. Given the nature of the site, no guarantee may given as to the time period the mural may remain on the bridge. 14. Equal Employment Opportunity. Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act. 15. Insurance. A. Minimum Scope of Insurance: Consultant agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his/her firm to an amount not less than: one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage. ii. Consultant agrees to have and maintain for the duration of the contract, an Automobile Liability insurance policy ensuring him/her and his/her staff to an amount not less than thirty thousand dollars ($30,000) combined single limit per accident for bodily injury and property damage. iii. Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Consultant agrees that all certificates and endorsements are to be received and approved by the Town before work commences. iv. Consultant agrees to have and maintain, for the duration of the contract, professional liability insurance in amounts not less than $1,000,000 which is sufficient to insure Consultant for professional errors or omissions in the performance of the particular scope of work under this agreement. Revised: March 6, 2002 Page 4 of 7 N:\CSD\ART\mainmuralagt. wpd B. General Liability: The Town, its officers, officials, employees and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of Consultant, premises owned or used by the Consultant. This requirement does not apply to the professional liability insurance required for professional errors and omissions. ii. The Consultant's insurance coverage shall be primary insurance as respects the Town, its officers, officials, employees and volunteers. Any insurance or self -insurances maintained by the Town, its officers, officials, employees or volunteers shall be excess of the Consultant's insurance and shall not contribute with it. iii. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Town, its officers, officials, employees or volunteers. iv. The Consultant's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. C. All Coverages: Each insurance policy required in this item shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the Town. Current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk. D. In addition to these policies, Consultant shall have and maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the Town before beginning services under this Agreement. Further, Consultant shall ensure that all subcontractors employed by Consultant provide the required Workers' Compensation insurance for their respective employees. 16. Indemnification. The Consultant shall save, keep and hold harmless indemnify and defend the Town its officers, agent, employees and volunteers from all damages, liabilities, penalties, costs, or expenses in law or equity that may at any time arise or be set up because of damages to property or personal injury received by reason of, or in the course of performing work which may be occasioned by a willful or negligent act or omissions of the Consultant, or any of the Consultant's officers, employees, or agents or any subconsultant. Revised: March 6, 2002 N:1CSD\ART\mainmuralagt.wpd Page 5 of 7 17. Waiver. No. -failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement. 18. Governing Law. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior Court of the County of Santa Clara. 19. Termination of Agreement. The Town and the Consultant shall have the right to terminate this agreement with or without cause by giving not less than fifteen (15) days written notice of termination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, reports, performed to date by the Consultant. In the event of such termination, Town shall pay Consultant an amount that bears the same ratio to the maximum contract price as the work delivered to the Town bears to completed services contemplated under this Agreement pursuant to Exhibit A hereto, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such termination. 20. Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Consultant. 21. Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, including costs of appeal. 22. Entire Agreement. This Agreement, including Exhibit A, constitutes the complete and exclusive statement of the Agreement between the Town and Consultant. No terms, conditions, understandings or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party. Revised: March 6, 2002 Page 6 of 7 N:\CSD\ART\mainmuralagt.wpd IN WITNESS WHEREOF, the Town and Consultant have executed this Agreement as of the date indicated on page one (1). Town of Los Gatos. by: Debra J. Figone, Town Manager ATTEST: Clerk of the Town of Los Gatos, Los Gatos, California Marian V. Cosgrove, Town Clerk Approved as to Form: Orry P. Korb, Town Attorney Revised: March 6, 2002 N :ICS DWRT\mainmural agt. wpd Page 7 of 7 SCOPE OF SERVICES Exhibit A The Consultant shall provide the following services in the completion of a 205x75' mural located on the east footing of the Main Street Bridge overcrossing. Service Provided by the Consultant Compensation Plan and prepare a presentation piece. Submit a materials list and budget to Town's Community Services Director. Provide a comprehensive mock-up of the approved mural design and create an appropriate work plan. Participate in all project planning sessions. $1,000.00 Work with Town Staff to prepare the site. Prepare informational materials, make presentations and recruit volunteers. Conduct an orientation and safety meeting for the volunteers. $1,000.00 Act as project manager for the extent of the project. Schedule, supervise and track hours for all volunteers. Maintain a safe work environment. Keep the site secure and free of debris and waste materials. Maintain a work schedule in order to complete the mural in a timely fashion. Complete the mural and receive final approval from the Arts Commission. Supervise a final site clean-up and removal of all equipment. $1.000.00 Purchase all necessary materials: Base materials budget Contingency $4,000.00 $1.000.00 Compensation for Consultant's professional services shall not exceed $3,000, and payment shall be based upon Town approval of each task. Materials to be paid on a reimbursement basis not to exceed $5,000. N:\CSD\Mural Project\scope of services.wpd RESOLUTION 2002 - 26 RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS AUTHORIZING THE TOWN MANAGER TO EXECUTE AGREEMENT WITH CAROL HUBOI-WERRY FOR THE MAIN STREET BRIDGE MURAL PROJECT WHEREAS, the Town Council approved the installation of the Main Street Bridge Mural; and WHEREAS, the Town of Los Gatos has received Cal Trans Transportation Art Committee approval and an Encroachment Permit from the State of California Department of Transportation; and WHEREAS, the Town Council finds Carol Huboi-Werry is fully qualified to serve as artist/project manager for the Main Street Bridge Mural Project. NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES HEREBY RESOLVE AS FOLLOWS: That the Town Manager is authorized to execute the attached agreement (Exhibit A) with Carol Huboi-Werry to serve as the artist/project manager for the Main Street Bridge Mural Project. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California, held on the 18th of March, 2002, by the following vote: COUNCIL MEMBERS: AYES: Steven Blanton, Sandy Decker, Steve Glickman, Joe Pirzynski, Mayor Randy Attaway. NAYS: ABSENT: ABSTAIN: ATTEST: None None None SIGNED: /s/ Randy Attaway MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA /s/ Marian V. Cosgrove CLERK OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA Town Council Minutes March 18, 2002 Redevelopment Agency Los Gatos, California ACCOUNTS PAYABLE/RATIFICATION/MARCH 2002 (04.V) Motion by Mr. Glickman, seconded by Mrs. Decker, that Council ratify the accompanying check registers for accounts payable invoices paid on March 1, 2002, and March 6, 2002 in the amount of $2,407,442.97. Carried unanimously. MINUTES OF MARCH 4, 2002 (05.V) Motion by Mr. Glickman, seconded by Mrs. Decker, that Council approve the Minutes of March 4, 2002 Town Council/Redevelopment Agency Meeting as submitted. Carried unanimously. AMICUS BRIEF/HARVEST CHURCH VS. CITY OF CONCORD (06.28) Motion by Mr. Glickman, seconded by Mrs. Decker, that Council authorize the Town Attorney to include the Town of Los Gatos as an amicus curiae in the case of Harvest Church vs. City of Concord, First District Court of Appeal, action number A-096604, at no cost to the Town. Carried unanimously. MAIN STREET BRIDGE MURAL/CAROL HUBOI-WERRY/RESOLUTION 2002-26 (07.39) Motion by Mr. Glickman, seconded by Mrs. Decker, that Council adopt Resolution 2002-26 entitled, RESOLUTION OF THE TOWN OF LOS GATOS AUTHORIZING THE TOWN MANAGER TO EXECUTE AGREEMENT WITH CAROL HUBOI-WERRY FOR THE MAIN STREET BRIDGE MURAL PROJECT. Carried unanimously. COMMUNITY GARAGE SALE/SALVATION ARMY/RESOLUTION 2002-27 (08.39) Motion by Mr. Glickman, seconded by Mrs. Decker, that Council adopt Resolution 2002-27 entitled, RESOLUTION OF THE TOWN OF LOS GATOS AUTHORIZING THE TOWN MANAGER TO EXECUTE AN AGREEMENT FOR COLLECTION SERVICES WITH THE SALAVATION ARMY. Carried unanimously. NEIGHBORHOOD TRAFFIC CALMING POLICY (09.41) Motion by Mr. Glickman, seconded by Mrs. Decker, that Council adopt Neighborhood Traffic Calming Policy. Carried unanimously. BLOSSOM HILL PARK/PARKING LOT/PROJECT 0212/RESOLUTION 2002-28 (10.24) Motion by Mr. Glickman, seconded by Mrs. Decker, that Council adopt Resolution 2002-28 entitled, RESOLUTION OF THE TOWN OF LOS GATOS AWARDING A CONSTRUCTION CONTRACT FOR PROJECT 0212 BLOSSOM HILL PARK PARKING LOT RECONSTRUCTION. Carried unanimously. TOWN SERVICE CENTER IMPROVEMENTS/PROJECT 0206/RESOLUTION 2002-29 (12.24) Motion by Mr. Glickman, seconded by Mrs. Decker, that Council adopt Resolution 2002-29 entitled, RESOLUTION OF THE TOWN OF LOS GATOS AWARDING A CONSTRUCTION CONTRACT FOR PROJECT 0206 TOWN SERVICE CENTER IMPROVEMENTS. Carried unanimously. TC` D 13 : M M031802 2