2002-026-Authorizing The Town Manager To Execute An Agreement With Carol Huboi-Werry For The Mainstreet Bridge Mural ProjectRESOLUTION 2002 - 26
RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
AUTHORIZING THE TOWN MANAGER TO .EXECUTE AGREEMENT WITH
CAROL IIUBOI-WEBBY 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 18t" of March, 2002, by the following vote::
COUNCIL MEMBERS:
AYES; Steven Blanton, Sandy Decker, Steve Glickman, Joe Pirzynski,
Mayor Randy Attaway.
NAYS.: None
ABSENT: None
ABSTAIN: None
SIGNED: -~
MAYOR OF THE TOWN OF OS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
.~ ~-~_-
CLERK OF THE TOWN OF LOS G OS
- LOS GATOS, CALIFORNIA
~rFICF 7FTH: ~4~~i c'LEfZr
I IH
AGREEMENT FOR MURAL ART CO:NSULTAN'fiRWICES
_ z r, C
THIS AGREEMENT is entered into this day of -- - - ; -300z~-, ~l~y-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 andscape o`f 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 ervices of the Consultant are to commence upon the execution
of this Agreement and issuance ofa Town purchase order, with completion of the program
by June 3'0, 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
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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 ResponsibilitX. 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 withthe performance of its services,pursuant to this
Agreement are confidential until released by the Town to the public, and the Consultant shal'1
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 fo lowing completion of the work under this Agreement. Consultant
shall make these records available to authorized personnel of the Town at the Consultant's
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Page 2 of 7
offices during business hours upon written :request of the Town.
Project Manager. The Project Manager for the Consultant for the work under this Agreement
shall'be Carol Ann Huboi-Werry.
9. Assi ng aw and Subcontractins. 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: To Consultant:
Town of Los Gatos Carol Ann Huboi-Werry
Attn; Regina Falkner 2028 Via D'Este
PO. Box 949 Campbell, CA 95008
Los Gatos, CA 95030
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 otherbenefits 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
performedunder this Agreement. Consultant shall be compensated forits 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
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interest. Consultantshal'1 not knowingly and shall takereasonable steps to ensure that it does
.not employe person having such an interest in this performance of this Agreement. If alter
employment of a person, Consultant discovers it has employed a person with a direct or
indirect interest that would conflict with its performance ofthis 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 Opportuni~. 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 discri irate
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:
i. 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 hall 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.
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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, employeesand volunteers. Any insurance or
self-:insurances maintained by the Town, its officers, officials, emp oyees 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 maybe 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.
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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.
1S. .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 contemp ated
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.
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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. F ne, T wn Manager \~~`
ATTEST:
Clerk of the Town of Los Gatos.,
Los Gatos, California
~, ,~ , .,
,.
Mari .; os~rove, `T'own Clerk
Approved as to Form:
C~_--
Orry orb, Town .Attorney
Consultant y:
~- G ~'% 2
~Z
Carol Ann Huboi-Werry
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SCOPE OF SERVICES
Exhibit A
The Consultant shall provide the following services in the completion of a 20'.x75' mural located
on the east footing of the Main Street Bridge overcrossing.
Service Provided by the Consultant Compensation
Plan and prepare a presentation piece. $1,000:00
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.
Work with Town Staff to prepare the site.. $1,000..:00
Prepare informational materials, make presentations and recruit volunteers.
Conduct an orientation and safety meeting for the volunteers.
Act as project manager for the extent of the project. $.1;000..00
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.
'Purchase all necessary materials:
Base materials budget $4,000:00
Contingency $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..
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