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HomeMy WebLinkAboutTsutakawa_Gerard LLC Agreement for Relocation and refubishment of artworks by Artist's HeirCITY OF FRESNO AGREEMENT FOR RELOCATION AND REFURBISHMENT OF ARTWORKS BY ARTIST'S HEIR THIS AGREEMENT is made by and between the City of Fresno, a municipal corporation ("City") and Gerard Tsutakawa LLC ("Artist's Heir"). WHEREAS, City owns artworks, created by George Tsutakawa ("Artist") and located in the Fulton Mall (the "Mall") titled Aquarius ovoid and obos (the "Artworks"); wHEREAS, city is proceeding with the important public project of rehabilitating the Mall (the "Mall Rehabilitation Project"); WHEREAS, due to the Mall Rehabilitation Project the Artworks must be relocated from their current locations in the area of the Mall to another location in the area of the Mall (the "Relocation Site"), equally accessible by the public in the general locations as shown on Exhibit B, attached hereto and incorporated herein by this reference, subject to reasonable modifications by Randall Morrison, ("City's Project Manager") (the "Relocation Work"); WHEREAS, the Artworks are also in need of a degree of refurbishment, which is described herein and in Exhibit A (the "Refurbishment Work"); WHEREAS, pursuant to California Art Preservation Act (Civil Code section 987) ("CAPA") and the Federal Visual Artist's Heirs Rights Act (17 USC section 106A and portions of sections 107 and 113) ('FVARA"), Artist's Heirs have the right to perform the Relocation Work and Refurbishment Work, subject to a schedule and fee acceptable to City, and he has indicated a desire to exercise his right to complete both the Relocation Work and Refurbishment Work; WHEREAS, the timely completion of the Relocation Work and Refurbishment Work is essential to the successful completion of the Mall Rehabilitation Work; and WHEREAS, City and Artist's Heir wish to have the Refurbishment Work and Relocation Work be governed by the mutual obligations, covenants and conditions set forth herein. NOW THEREFORE, in consideration of the foregoing and the mutual covenants hereinafter set forth, the parties agree as follows: 1. The parties agree the Artworks shall be relocated generally to the location described on Exhibit B, subject to final approval of City's Project Manager. 2. Artist's Heir agrees, solely for the fee set forth in Section 4., below, to complete both the Relocation Work and Refurbishment Work on or before March 31, 2017 and to comply with the following schedule: City of Fresno Fulton Mall Artwork Agreement Page 2oÍ15 The parties understand the time for planning and completing both the Relocation Work and Refurbishment Work shall be extended for such period of time as is caused by events beyond the control of Artist's Heir, including only fire, theft, strikes, shortages of materials (provided Artist's Heir have timely ordered the materials), a supplier default and act of nature. The just stated provisions relating to extensions of time of completion are subject to the termination provisions set forth in Paragraph 7. Gity shall remove the Artworks, Crate and Transport the Artworks to Artist's Heir studio in Seattle, Washington via auto freight. On or before @ days after the Effective Date. Step 2 Artist's Heir shall commence the Refurbishment Work. Commence shall mean when Artist's Heir has actually expended $500 in hard costs on the Refurbishment Work Within $ calendar days after receipt of Artworks at Artist's Heir studio. Artist's Heir shall have completed the Refurbishment Work. Within 120 working days after the commencement of the Refurbishment Work. Artist's Heir shall crate and store Artworks. For a period of up to 150 calendar days after the completion of the Refurbishment Work. Artist's Heir shall transport the Artworks to project site in Fresno, California via auto freight. Within l! working days after notice of completion of the Site Preparation. Artist's Heir shall coordinate with Gity on installation of Artworks in new location. For a period of up to I week. City of Fresno Fulton Mall Artwork Agreement Page 3 of 15 3. Relocation Site Preparation City shall be responsible for preparation of the Relocation Site (the "Site Preparation") and notify Artist's Heir in writing when the Site Preparation has been completed. 4. Fee and Pavment Schedule City shall pay Artist's Heir a total all- inclusive fee of Forty-Four Thousand Dollars ($44,000.00) for both the Refurbishment Work and Relocation Work (the "Total Fee"). Such fee includes all overhead, materials, labor, insurance, shipping, installation, travel, taxes, preparation of proposals and reimbursable expenses. The schedule of payment for such fee shall be as follows: a. Eighteen Thousand Dollars ($18,000.00) upon commencement of the Refurbishment Work; b. Eighteen Thousand Dollars ($18,000.00) upon completion of the Refurbishment Work; and c. Eight Thousand Dollars ($8,000.00) upon completion of the Relocation and installalion Work. 5. Billinq Artist's Heir shall submit a billing to City prior to each applicable scheduled payment date and such billing shall be reviewed by City's Project Manager. Upon City's Project Manager's determination such billing accurately reflects work satisfactorily completed to date, payment shall be authorized and made through City's normal disbursement procedure. All checks for this project shall be made payable to Gerard Tsutakawa LLC. 6. lnsurance Throughout the life of this Agreement, Artist's Heir shall pay for and maintain in full force and effect all insurance as required in Exhibit C or as may be authorized in writing by City's Risk Manager or his/her designee at any time and in his/her sole discretion. 7. Citv's Riqht to Terminate City shall have the right to terminate this Agreement if after ten-days' (10-days') notice, Artist's Heir fails, without cause, to meet the schedule set forth in Paragraph 2. Termination pursuant to this Paragraph shall not terminate the provisions set forth in this Paragraph 7 or in Paragraphs g, 10, 13 and 14. ln the event of termination of this Agreement, Artist's Heir shall return all payments made pursuant to Paragraph 4. ln addition, City shall have the right to keep copies of restoration documentation. 8. Artist's Heirs' Riqht to Terminate Artist's Heir shall have the option to terminate this Agreement if City fails to substantially perform its obligations after ten- days' (10-days') written notice from Artist's Heir, which specifically identifies the obligations which are then outstanding. Artist's Heirs shall be paid compensation for services satisfactorily performed prior to the effective date of termination, but shall not be paid for any work or services performed or costs incurred which within City's Gity of Fresno Fulton Mall Artwork Agreement Page 4 of 15 sole discretion could have reasonably been avoided. City shall have the right to keep copies of the Final Design or preliminary drafts of the Final Design. 9. Alteration of Artworks City agrees if any alteration of any kind occurs to the Artworks, whether done by City or others, then the Artworks shall no longer be represented to be the Artworks of Artist without written consent from one or more of Artist's Heirs. No alteration shall be made, except in emergency situations, without first giving Artist's Heirs thirty-days' (30-days') written notice of such alteration. lf alterations and or modifications to the Artwork, are noticeable deviations of the original design intent, materials, patina or water-flow pattern of the Aftwork, the Artist's Heir reserves the right, at City's expense, to remove the Artist name and the titles to the Artworks as attributed to Artist, from the plaques, text, and all forms of electronic media advertising the Artwork by City. 10. Maintenance or Relocation of Artworks City agrees to see the Artworks are properly maintained. City need not provide any notice to Artist's Heir for any repair, relocation or restoration of the Artworks. 11. Assiqnment Neither party hereto shall have the right to assign this Agreement without the written approval of the other party. 12. Cooperation with Artist's Heir Artist's Heir shallwork cooperatively with all City staff. ln addition, Artist's Heir shall work with City's Project Manager in locating the exact placement of elements of the Artworks. 13. Liquidated Damaqes lf any action or inaction of the Artist's Heir causes a delay in the completion of the Mall Rehabilitation Project, except for the delays described in Paragraph 2, then the Artist's Heir shall pay City liquidated damages in the amount of One Hundred Dollars ($100.00) per day for each day, or portion thereof, of delay in the completion of the Mall Rehabilitation Project which results from any action or inaction of the Artist's Heir. This Paragraph shall not apply to any delays caused by contractors or subcontractors not under contract with the Artist's Heir. 14. Hold Harmless Artist's Heir agrees to and hereby does hold harmless, defend and indemnify City and each of its officers and employees from and against any and all losses, claims, demands, damages, liabilities, obligations, costs, and expenses, of any nature whatsoever, including court costs and reasonable attorney's fees, arising out of or incurred in connection with any work by any of Artist's Heirs hereunder; provided that, this Paragraph shall apply until one year after the final payment, pursuant to Paragraph 4; and provided, further, that the obligation to indemnify and hold harmless shall only be to the extent any action or inaction of any of Artist's Heirs causes the damages. 16. Warrantv Artist's Heir warrants the Artwork against defects in materials and workmanship for one year after the date of completion of installation and will replace or repair any part of the Artwork shown to be defective during that period at City of Fresno Fulton Mall Artwork Agreement Page 5 of 15 no cost to City. City shall notify Artist's Heir, in writing, as soon as possible upon discovery of a defect. 17. Successors This Agreement shall be binding upon the parties hereto, their heirs, successors, permitted assigns and personal representatives, and references to Artist's Heir and City shall include their heirs, successors, permitted assigns and personal representatives. 18. Waivers A waiver of any breach of any of the provisions of this Agreement shall not be construed as a continuing waiver of other breaches of the same or breaches of other provisions hereof. 19. Notices All notices shall be sent to the addresses set forth at the end of this Agreement. Each party shall give written notification of any change of address prior to the date of such change. Any notices required to be given pursuant to this Agreement shall be deemed completed upon deposit in the U.S. Mail, first class postage paid. 20. Dispute Resolution ln the event of a dispute between the parties in connection with the performance of work hereunder, prior to the initiation of any litigation, the dispute shall be submitted to at least one good faith session of non- binding mediation, in accordance with the Mediation Rules of the American Arbitration Association. 21. Attornev's Fees lf any litigation is brought to enforce any provision of this agreement, then the prevailing party shall be entitled to an award of reasonable attorney's fees and court costs. 22. Headinq All paragraph headings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 23. Entire Aqreement This Agreement constitutes the entire understanding between the parties and its terms can be modified only by an instrument in writing signed by both parties. 24. Governinq Law This Agreement shall be governed by the laws of the State of California. ln the event suit shall be brought by either party to this Agreement, the parties agree venue shall be in Fresno County. 25. Effective Date The effective date of this Agreement is February 15, 2016. 26. Extent of Aqreement. This Agreement constitutes the entire understanding between the parties regarding the subject matter hereof and its terms can be modified only by an instrument in writing signed by both parties. City of Fresno Fulton Mall Artwork Agreement Page 6 of 15 City of Fresno a California municipal corporation Bruce Rudd, City Manager Attest: YVONNE SPENCE, CMC City Clerk Addresses: City of Fresno Attention: Randall Morrison 2600 Fresno Street Fresno, CA 93721 Telephone: (559) 621-8703 160899 Artist's Heir: Gerard Tsutakawa LLC Name Gerard Tsutakawa, Member By -\/ ?Lr^å?..a Deputy fv\ ø,cco îvt.r.^r\tn ¿?-:l<-\¿-s a4_4? T lnllu Approved as to form: DOUGLAS T. SLOAN Date Artist's Heir Attention: Gerard Tsutakawa 1315-32 Avenue South Seattle, WA 98144 Telephone: (206) 7 55-0701 City of Fresno Fulton Mall Artwork Agreement Page 7 ol 15 Exhibit A SCOPE OF SERVICE AGREEMENT FOR RELOCATION AND REFURBISHMENT OF ARTWORKS BY ARTIST'S HEIR AQUARIUS OVOID AND OBOS ARTWORKS PROJECT OBJECTIVE: The objective of the project is to reconstruct the Fulton Mall from Tuolumne Street and lnyo Street and the cross malls and streets within that stretch. As part of the reconstruction project all artworks will be refurbished and relocated within the Mall area. DESCRIPTION OF PROJECT: Gerard Tsutakawa, son and heir to George Tsutakawa, will perform the refurbishment work on his father's Artworks, Aquarius Ovoid and Obos. City will remove the pieces, crate them and have them shipped to Gerard's studio in Seattle, Washington. Once Mr. Tsutakawa receives the Artworks, he will perform the Refurbishment Work described herein, in order to restore the piece back to their original beauty and intent. Once restored, Mr. Tsutakawa will crate and ship the pieces back to Fresno in order for them to be installed within the new Fulton Street environment. Mr. Tsutakawa will coordinate with City and supervise the installation process to ensure the protection and proper placement of his father's Artworks. AQUARIUS OVOID: Artwork size: Approx. 36" x 42" x36" This sculpture is missing two vital parts. The center stem that connects the fountain to the supply and the inner sphere with small flower nozzle. The main cat eye shape has been force down and out of shape. The bronze has retained most of its basic structural integrity. The surface of the bronze is covered with a layer of water mineral deposits due to evaporation. The surface and edges are pitted and the patina is missing. Scope of Work (unless otherwise expressly stated, Artist's Heir shall perform the following work): a) City shall cause the removal of the artwork, and the crating and transportation of the fountain/sculpture portion of the Artwork to 3116 South lrving Street, Seattle, WA 98144 via auto freight. All the sculpture repair and refinishing work is to be done by the Gerard Tsutakawa at Gerard Tsutakawa LLC. b) Sandblast the entire sculpture to remove the evaporated mineral deposits. c) Mechanically grind (blending/first cut) with abrasive discus on all exterior surfaces. City of Fresno Fulton Mall Artwork Agreement Page 8 of 15 d) The missing center pipe, inner sphere with small flower nozzle will be re- fabricated in bronze as per the original design and re-fìtted. e) Re form and strengthen the cat eye shape of the main bronze form. f) Surface Finish: i. The sculpture surface and edges are to be abrasively re-ground with a second and third cut and then a final polish. ii. Heat and chemicals are to be used to apply a new blue black patina. iii. The surface is to be sealed with first a soft hot wax and then a cold hard wax. A silicon based sealer with be applied over the wax. g) Artist's Heir shall provide the final anchor bolt pattern template and any pipe connection specifications not specifically called out in Project Construction Documents to City prior to the fountain construction by the contractor completing the Mall Rehabilitation Project (the "City's Contractor"). The mechanical water connection for the final installation will need to be designed and coordinated with the contractor and owner for final fittings. Anchor bolts are to be design and installed to attach the work to the new base. Artist's Heir, the City's Contractor and City shall coordinate schedule timing of this deliverable. h) The sculpture is to be crated and shipped to the Fulton Mall Project site in Fresno via auto freight by Artist Heir. i) The fountain sculpture once delivered will need to be uncrated and boomed in for the installation in the new pool by the City's Contractor. Artist's Heir shall be at the project site to supervise installation by the City's Contractor. j) The water flow testing and adjustments are the final step. Artist's Heir shall work with City and City's Contractor to calibrate fountain flow. k) Prepare a conservation report documenting the conservation effort with photos and notes for each step. "Aquarius Ovoid" Fountain Budget ltems Breakdown: a) Remove and ship the artwork. (City of Fresno) b) Sandblasting by others and transportation c) First cut, grinding, labor and materials d) New sphere, flower form and bronze supply pipe e) Re shape and re-enforce eye form f) Surface finish g) Crate and ship h) lnstallation and Travel i) Conservation Report N/C $ 5oo $ 750 $ 4,000 $ 250 $ 2,500 $ 1,500 included $ 5oo City of Fresno Fulton Mall Artwork Agreement Page 9 of 15 j) Contingency, $2,000,000 GCL insurance, taxes, misc. Total: $4,000 $ 14,000 OBOS: Current Condition: approx. 10'-6'tall by 5'-9", 1964 This vertical bronze sculpture appears to be in fairly good structural conditions. There are no obvious failed welds or missing parts except one baffle on the column in center sphere. A post installation modifications to the water supply outlets in the spheres is noted. The water supply for the three spheres appears to have been cut off. All surfaces have heavy mineral deposit buildups with larger amounts below waterfall edges. The surface is pitted and the original patina is missing. Scope of Work (unless otherwise expressly stated, Artist's Heir shall perform the following work): a) City shall cause the removal of the artwork, and crating and transportation of the fountain/sculpture portion of the Artwork to 3116 South lrving Street, Seattle, WA 98144 via auto freight. All the sculpture repair and refinishing works are to be done by Gerard Tsutakawa at Gerard Tsutakawa LLC. b) Sandblast the entire sculpture to remove the evaporated mineral deposits. c) Mechanically grind (blending/first cut) with abrasive discus on all exterior surfaces. d) Artist's Heir shall add a thin water flow lip on the 3 spheres and top and bottom dishes. This will reduce wetting and the buildup of mineral deposits on the under elements. The water flow will be smoother, cleaner and more graceful looking. This technique was used on later dated fountains by George Tsutakawa. The new lips will be the same silicon bronze and welded on, finished and patinaed. e) The three central spheres water supplies should be re-fitted with new water nozzles as per the original design. They will need to be designed and installed. Ð Surface Finish, patina and sealer: i. The sculpture surface and edges are to be abrasively re-ground with a second and third cut and then a final polish. ii. Heat and chemicals are to be used to apply a new blue black patina. iii. The surface is to be sealed with first a soft hot wax and then a cold hard wax. A silicon based sealer with be applied over the wax. g) Artist's Heir shall provide the final anchor bolt pattern template and any pipe connection specifications not specifically called out in Project Construction Documents to City prior to the fountain construction by the City's Contractor. City of Fresno Fulton Mall Artwork Agreement Page 10 of 15 The mechanical water connection for the final installation will be designed and coordinated with the City's Contractor and City for final fittings. Anchor bolts are to be design and installed to attach the work to the new base with assistance of the City's Contractor. Artist's Heir, the City's Contractor and City shall coordinate schedule timing of this deliverable. h) The sculpture is to be crated and shipped to the Fulton Mall Project site in Fresno via auto freight by Artist's Heir. i) The fountain sculpture once delivered will need to be uncrated and boomed in for the installation in the new pool by the City's Contractor. Artist's Heir shall be at the project site to supervise installation by the City's Contractor. j) The water flow testing and adjustments are the final step. Artist's Heir shall work with City and the City's Contractor to calibrate fountain flow. k) Prepare a conservation report documenting the conservation effort with photos and notes for each step. ..OBOS'' FOUNTAIN BUDGET PROPOSAL ITEMS BREAKDOWN: a) Remove and ship the artwork. by the City of Fresno N/C b) Sandblasting by others, transportation to $ 1,000 c) First cut, grinding, labor and materials $ 1,000 d) New bronze lips, 15 pieces installed $ 3,000 e) Spheres water supply re-fitting. $ 1,500 f) Surface finish, patina and sealer $ 5,000 g) Crate and ship $ 3,500 h) installation time, materials, travel, including site visits $ 3,000 i) Conservation Report $ 500 j) Contingency, $2,000,000 GCL insurance, taxes, misc. $ 10,000 for both sculptures. Total $ 28,500 ARTWORKS STORAGE: Temporary storage of the Artworks is included in the scope of services for up to 150 calendar days after the completion of the Refurbishment Work. lf the project site is not ready after the 150 calendar days has past, then Artist's Heir shall be compensated for each additional month at the rate of $300 per month. a) Temporary Artwork Storage (up to 150 days) $1 ,500 Exhibit B Aquarius Ovoid and Obos Relocation Maps @ C o City of Fresno Fulton Mall Artwork Agreement Page 13 of 15 Exhibit C INSURANCE REQUIREMENTS AGREEMENT FOR RELOCATION AND REFURBISHMENT OF ARTWORKS BY ARTIST'S HEIR AQUARIUS OVOID AND OBOS ARTWORKS Artist's heirs shall pay for and maintain in full force and effect all policies of insurance required herein with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vll' in Best's lnsurance Rating Guide, or (ii) authorized by the City's Risk Manager or his/her designee. The following policies of insurance are required and shall maintain limits of liability not less than those amounts stated below, however, the insurance limits available to the City of Fresno, its officers, officials, employees, agents and volunteers as additional insured's, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured. 1. COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. 2. PERSONAL AUTOMOBILE LIABILITY insurance with limits of liability not less than: (i) $1oo,o0o per person; (ii) $300,000 per accident for bodily injury; and, (iii) $50,000 per accident for property damage. 3. WORKERS'COMPENSATION insurance as required by the State of California and EMPLOYERS' LIABILITY insurance with limits of $1,000,000 each accident, $1,000,000 disease each employee and $1,000,000 disease policy limit. 4. CONSERVATOR'S FINE ARTS (Bailees) coverage on an "all risk" or "special form" basis, including coverage for property of others in the insured's care, custody and control, at full replacement cost and with no coinsurance penalty provision. City of Fresno is to be named as loss payee with a limit of no less than $250,000 per occurrence or claim, $500,000 aggregate. Gity of Fresno Fulton Mall Artwork Agreement Page 14 oÍ 15 5. *ENDORSEMENTS: All non-lSO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. The Gity shall be furnished with the Certificate(s) and applicable endorsements for ALL required insurance fourteen (14) days pr¡or to commencement of the work under this Agreement. L All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar day written notice by certified mail, return receipt requested, has been given to the City. The insured is also responsible for providing written notice to the City under the same terms and conditions. Upon issuance by the insurer, broker or agent of a notice of cancellation, non-renewal or reduction in coverage or in limits, insured shall furnish the City with a new Certificate and applicable endorsements for such policy(ies). ll. The General Liability and Automobile policy shall name the City of Fresno, its officers, officials, agents, employees and volunteers as additional insured's. The coverage shall contain no special limitations on the scope of protection afforded to CITY, its officers, officials, employees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional lnsured. For any claims related to this Agreement, Artist's heirs' insurance coverage shall be primary insurance with respect to the CITY, its officers, officials, employees, agents and volunteers. Any insurance or self- insurance maintained by the CITY, its officers, officials, employees, agents and volunteers shall be excess of Artist's heirs' insurance and shall not contribute with it. Artist's heirs shall establish primary and non- contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 0413. lll. Any Workers' Compensation policy shall contain a Waiver of Subrogation as to city of Fresno, its officers, officials, agents, employees and volunteers. 6. PROVIDING OF DOCUMENTS: Upon request of City, the insured shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the undenruriter to be a true and correct copy of the original policy. This requirement shall survive the expiration or termination of this Agreement. 7 . lf Artist's heirs should subcontract all or any portion of the services to be performed under this Agreement, Artist's heirs shall require each City of Fresno Fulton Mall Artwork Agreement Page 15 of 15 subcontractor/subconsultant to provide insurance protection, as an additional insured, to the CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of this Agreement. Any subcontractor/subconsultant shall establish additional insured status for CITY, its officers, officials, employees, agents and volunteers by using lnsurance Service Office (lSO) Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 1011 85. 8. ln the event Artist's heirs purchases an Umbrella or Excess insurance policy(ies) to meet the "Minimum Limits of lnsurance", this insurance policy(ies) shall "follow form" and afford no less coverage than the primary insurance policy(ies). 9. Artist's heirs shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and Artist's heirs shall also be responsible for payment of any self-insured retentions. Any deductibles or self- insured retentions must be declared on the Certificate of lnsurance and approved by the CITY's Risk Manager or his/her designee. * NOTE: A Certificate of lnsurance is not acceptable in lieu of the additional insured and/or Waiver of Subrogation endorsements required above.