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HomeMy WebLinkAboutReso 81-19 Approving a Public Art Installation and Maintenance Agreement with Avesta Development Group LLC. for Public Art at 7601 Amador Valley Boulevard) RESOLUTION NO. 81 — 19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY,OF DUBLIN APPROVING A PUBLIC ART INSTALLATION AND MAINTENANCE AGREEMENT WITH AVESTA DEVELOPMENT GROUP LLC FOR PUBLIC ART AT 7601 AMADOR VALLEY BOULEVARD WHEREAS, Avesta Development Group LLC ("Developer") is building and will operate a Senior Care Facility comprised of apartments, assisted living and memory care units with associated communal eating and living areas at 7601 Amador Valley Boulevard: and WHEREAS, Developer is required under Dublin's Public Art Ordinance, Municipal Code section 8.58.060(A) to install Council-approved public art with its Senior Care Facility; and WHEREAS, on August 20, 2019, City Council approved Developer's proposed public artwork by artist Matthew Placzek; and WHEREAS, Developer has entered into a contract with artist Matthew Placzek to complete the approved artwork; and WHEREAS, artist Matthew Placzek has completed fabrication of the approved art; and WHEREAS, Developer is installing the completed artwork as required; and WHEREAS, Dublin's Public Art Ordinance, Municipal Code section 8.58.070(D) requires that developer execute an agreement with the City, prior to occupancy of the first structure in the project, which sets forth the ownership, maintenance responsibilities, and insurance coverage for the public artwork. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does approve A Public Art Installation and Maintenance Agreement with Avesta Development Group LLC for Public Art at 7601 Amador Valley Boulevard, attached hereto as Exhibit A and authorizes the City Manager to execute the agreement. PASSED, APPROVED AND ADOPTED this 20th day of August 2019, by the following vote: AYES: Councilmembers Goel, Hernandez, Josey, Kumagai, and Mayor Haubert NOES: ABSENT: ABSTAIN: - ayor ATTEST:ai4k Co' City Clerk Reso 81-19, Adopted 8/20/2019, Item 4.4 Page 1 of 1 5219-116462\1272220.1 9/2/15 1 PUBLIC ART INSTALLATION AND MAINTENANCE AGREEMENT FOR AVESTA SENIOR CARE FACILITY This PUBLIC ART INSTALLATION AND MAINTENANCE AGREEMENT (“Agreement”) is dated as of ____________ (“Effective Date”), and is entered into between the CITY OF DUBLIN, a California municipal corporation (“City”), and DUBLIN CA REAL ESTATE, LLC (“Owner”). City and Owner may be referred to individually as a “Party” or collectively as the “Parties.” City and Owner enter into this Agreement with reference to the following recitals of fact (each, a “Recital”): RECITALS A. Owner is the owner of property in the City of Dublin (“City”) generally located on the North side of Amador Valley Boulevard and West of Donohue Dr and known as 7601 Amador Valley Boulevard ((APN): 941-0173-001-09) (“Property”). Owner is currently developing a four-story 66,787 square feet senior care facility in Downtown Dublin, consisting of 35 senior apartments, 13 high-acuity assisted living units, 32 memory care (“Project”). B. On March 22, 2016 the Planning Commission approved SDR Resolution No. 16- 04 Condition of approval number 14 (the “Condition”) requires Owner to acquire and install a public art project in accordance with Chapter 8.58 of the City Municipal Code valued at a minimum of $67,675, to comply with the Project’s public art compliance report submitted by the Owner and on file with the City, and to, prior to first occupancy, (a) secure completion of the public art project in a manner deemed satisfactory to the City and (b) execute an agreement between the City and Owner that sets forth the ownership, maintenance responsibilities and insurance coverage for the public art project. C. Owner entered into a Public Art Agreement with Matthew Placzek, a sole proprietor (“Artist”), on February 11, 2019 (“Artist Agreement”). Under the Artist Agreement, the Artist agreed to design, fabricate and install public art on the Property “Exhibit A”. The Artist Agreement contains maintenance provisions, warranties, standards and releases. D. On July 11, 2019, the Heritage and Cultural Arts Commission reviewed the proposed public art project prepared by the Owner (“Public Art”) and recommended approval of the Public Art to the City Council. The Public Art consists of colorful and vibrant butterfly sculptures made with durable metal and hand etched acrylic. The Public Art will be installed in the locations set forth on “Exhibit B,” which is attached hereto and incorporated herein by reference. E. The Parties desire to enter into this Agreement to memorialize the City’s approval of the Public Art. Further, compliance with this Agreement is intended to fully satisfy the Condition and Owner’s obligation to enter into an agreement setting forth ownership, maintenance responsibilities and insurance coverage for the Public Art. NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION AND THE PROMISES AND COVENANTS OF CITY AND OWNER SET FORTH IN THIS AGREEMENT, CITY AND OWNER AGREE, AS FOLLOWS: 5219-116462\1272220.1 9/2/15 2 TERMS AND CONDITIONS 1. PUBLIC ART INSTALLATION, OWNERSHIP AND MAINTENANCE 1.1 Installation and City Manager Determination. Owner shall cause the Public Art to be installed on the Property at the locations set forth on Exhibit B. Within five (5) working days of notice of the installation, the City Manager, or his designee, shall determine if the Public Art has been completed in a satisfactory manner, which determination shall not be unreasonably withheld, conditioned or delayed and shall be made if the Public Art is in compliance with Exhibit C, and if such determination cannot be made, the City Manager shall provide written notice to Name/email specifying the corrective work needed for compliance within this five (5) day time period. In the event that corrective work is required to bring the Public Art into compliance, Owner will notify the City upon completion of the corrective work, and the City Manager will again be permitted five (5) days to inspect the work as provided in this paragraph. If written notice of the City Manager’s approval or corrective work needed is not timely provided to Name/email, the Public Art shall be deemed approved and completed to the City Manager’s satisfaction, and certificates of occupancy shall not be withheld for failure to satisfy the Condition. 1.2 Ownership and Owner’s Maintenance. Following the City’s approval or deemed approval, as set forth in Section 1.1 above, Owner shall accept the Public Art from the Artist. Thereafter, Owner shall own the Public Art and shall maintain the Public Art, at its sole cost and expense, in good repair and condition and in accordance with the general maintenance plan prepared by the Artist under the Artist Agreement. Owner will use reasonable efforts to maintain the Public Art in good repair and condition. If the Public Art suffers deterioration due to any cause other than Owner’s failure to maintain the Art, Owner and City shall meet and confer in good faith to determine whether to replace any portion of the Public Art or translate any component into new media, or whether to restore the Public Art. The anticipated life span of the Public Art varies based on the specific piece of art, as set forth in Exhibit X years from the date of approval or deemed approval by the City, as set forth in Section 1.1 above. After that time, Owner may, in consultation with City, re-evaluate the Public Art to determine if it retains its identity as a work of art and, if not, whether to take appropriate action, including the possibility of destroying the Public Art. In the event that the Owner, in consultation with City, determines that the Public Art does not retain its identity as a work of art and Owner wishes to destroy the Public Art, the Owner must replace the Public Art with art of similar value, adjusted for inflation (“Replacement Art”). Any proposed Replacement Art must be approved by the City prior to the destruction of the Public Art, such approval not to be unreasonably withheld, conditioned or delayed. 1.3 City’s Maintenance Option. In the event that Owner fails to maintain the Public Art in accordance with this Agreement, City shall provide written notice of such condition. In the event that Owner fails to cure or commence to cure the condition within thirty (30) days following receipt of such notice, the City shall have the right, but not the obligation, to perform all acts necessary to cure such condition (or to pursue such other remedy available to the City), 5219-116462\1272220.1 9/2/15 3 including without limitation the right to access the Public Art, and to receive from Owner the City’s reasonable out-of-pocket costs for such action. 1.4 Modifications; Relocation. Owner intends to display the Public Art as originally created by Artist at the locations set forth on Exhibit B. Notwithstanding the foregoing, Owner may make minor modifications to the Public Art and/or relocate the Public Art with the consent of the Director of Parks and Community Services, which shall not be unreasonably withheld, conditioned or delayed. Visual Barriers. The Parties agree that no structures or visual barriers of any kind that impair or impede the public’s ability to view the Public Art shall be constructed or maintained on or adjacent to the Public Work, nor shall the Parties do anything that shall prevent, impair, or discourage the public’s ability to view the Public Art. 1.5 Insurance. Owner and Artist are required to secure and maintain insurance during the fabrication and installation phases of the Public Art as set forth further in the Artist Agreement. Owner shall provide City with verification of the required insurance under the Artist Agreement. In addition, Owner shall obtain and maintain in effect a combined single limit policy of liability insurance not less than one million dollars ($1,000,000) covering the Public Art placed with insurers with a Bests’ rating of no less than A:VII and shall name the City as an additional insured on such policy. An endorsement must state that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance or self-insurance maintained by the City shall be called upon to contribute to a loss under the coverage. Any failure of Owner to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers. Owner shall notify City within 14 days of notification from Owner’s insurer if such coverage is suspended, voided or reduced in coverage or in limits. 1.6 Satisfaction of the Condition. City agrees that compliance with this Agreement shall fully satisfy the Condition. Provided Owner is in substantial compliance with this Agreement and has otherwise fulfilled any non-Public Art-related requirements, the City may not withhold issuance of Project building permits and/or certificates of occupancy, including but not limited to the first certificate of occupancy for the Project, based on the Condition. 2. GENERAL PROVISIONS 2.1 Incorporation of Recitals. The Recitals set forth above are true and correct and incorporated into this Agreement by reference. 2.2 Notices, Demands and Communications Between the Parties. 2.2.1 Delivery. Any and all notices submitted by any Party to another Party pursuant to or as required by this Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, nationally recognized overnight (one business day) courier (i.e., United Parcel Service, Federal Express, etc.) or by registered or certified United States mail, postage prepaid, return receipt requested, to the address of the recipient Party, as designated in this Section. Notices may be sent in the same manner to such other addresses as the Parties may from time to time designate by notice in accordance with this Section. Notice shall be deemed received by the addressee, regardless of whether or when any return receipt is 5219-116462\1272220.1 9/2/15 4 received by the sender or the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, one business day after delivery to a nationally recognized overnight carrier or two (2) calendar days after it is placed in the United States mail in accordance with this Section 2.2.1. Any attorney representing a Party may give any notice on behalf of such Party. 2.2.2 Addresses. The notice addresses for the Parties, as of the Effective Date, are as follows: To Owner: Dublin CA Real Estate, LLC 1422 Clarkview Road Baltimore, MD 21209 Attn: Mr. Kenneth Assiran Telephone: 410-769-5882 Email: rkoors@capfundinc.com With a copy to: (list development partners) ADG Dublin, LLC 1095 Colby Ave. Menlo Park, CA 94025 Attn: Mohammad Javanbakht Telephone: 925-899-8981 Email: mj@avestadev.com With a copy to: (Owners’ attorney) Barnes Evans & Lohse LLC 102 W. Pennsylvania Ave., Suite 505 Towson, Maryland 21204 Attn: Edward S. (Ted) Evans III Telephone: (410) 937-0396 Email: ted@bel-law.com To City: City of Dublin 100 Civic Plaza Dublin, California 94568 Attn: City Manager Telephone: (925) 833-6650 Email: city.manager@dublin.ca.gov With a copy to: 5219-116462\1272220.1 9/2/15 5 Meyers Nave 555 12th Street, Suite 1500 Oakland, CA 94607 Attn: John D. Bakker, Esq. Telephone: (510) 808-2000 Email: jbakker@meyersnave.com 2.3 Relationship of Parties. The Parties each intend and agree that City and Owner are independent contracting entities and do not intend by this Agreement to create any partnership, joint venture, or similar business arrangement, relationship or association between them. 2.4 Legal Actions. Either Party may institute legal action, at law or in equity, to enforce or interpret the rights or obligations of the Parties under this Agreement or recover damages. 2.5 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties set forth in this Agreement are cumulative and the exercise by a Party of one or more of such rights or remedies shall not preclude the exercise by such Party, at the same or different times, of any other rights or remedies for the same default or the same rights or remedies for any other default by the other Party or Parties. 2.6 Principles of Interpretation. A word, term or phrase defined in the singular in this Agreement may be used in the plural, and vice versa, all in accordance with ordinary principles of English grammar, which shall govern all language in this Agreement. The words “include” and “including” in this Agreement shall be construed to be followed by the words: “without limitation.” Each collective noun in this Agreement shall be interpreted as if follo wed by the words “(or any part of it),” except where the context clearly requires otherwise. Every reference to any document, including this Agreement, refers to such document, as modified from time to time (excepting any modification that violates this Agreement), and includes all exhibits, schedules, addenda and riders to such document. The word “or” in this Agreement includes the word “and.” Every reference to a law, statute, regulation, order, form or similar governmental requirement refers to each such requirement as amended, modified, renumbered, superseded or succeeded, from time to time. 2.7 Governing Law. The procedural and substantive laws of California shall govern the interpretation and enforcement of this Agreement, without application of conflicts or choice of laws principles. The Parties acknowledge and agree that this Agreement is entered into, is to be fully performed in and relates to real property located in the County of Alameda, State of California. All legal actions arising from this Agreement shall be filed in the Superior Court of California in and for the County of Alameda or in the United States District Court with jurisdiction in the County. 2.8 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any person or entity other than the Parties and their respective permitted successors and assigns, nor is anything 5219-116462\1272220.1 9/2/15 6 in this Agreement intended to relieve or discharge any obligation of any third person to any Party or give any third person any right of subrogation or action over or against any Party. 2.9 Time Declared to be of the Essence. As to the performance of any obligation under this Agreement of which time is a component, the performance of such obligation within the time specified is of the essence. 2.10 Legal Costs. In the event that a Party brings an action to enforce this Agreement or otherwise arising out of this Agreement, the prevailing Party in such action shall be entitled to recover from the other Party its Legal Costs (which shall be defined to include all reasonable costs and expenses such Party incurs in any legal proceeding, or other matter for which such Party is entitled to be reimbursed for its Legal Costs, including reasonable attorneys’ fees, court costs and expenses and consultant and expert witness fees and expenses). 2.11 Entire Agreement. This Agreement integrates all of the terms and conditions mentioned in this Agreement or incidental to this Agreement, and supersedes all negotiations or previous agreements between the Parties with respect to all or any portion of the Public Art. 2.12 Waivers and Amendments. All waivers of the provisions of this Agreement and all amendments to this Agreement must be in writing and signed by the appropriate authorities of the Parties. Failure to insist on any one occasion upon strict compliance with any term, covenant, condition, restriction or agreement contained in this Agreement shall not be deemed a waiver of such term, covenant, condition, restriction or agreement, nor shall any waiver or relinquishment of any rights or powers under this Agreement, at any one time or more times, be deemed a waiver or relinquishment of such right or power at any other time or times. 2.13 Assignment. With the City’s written consent, which will not be unreasonably withheld or delayed, Owner may assign the rights, interests and obligations of Owner arising under this Agreement to a homeowners’ association formed for the Project or to a successor in interest or assignee of Owner at which point Owner shall have no further liability hereunder. Owner shall notify the City in writing of the assignment at least thirty (30) calendar days following completion of the assignment. 2.14 Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of and enforceable by, the respective personal representatives, successors and permitted assigns of the parties hereto. 2.15 Survival of Agreement. All of the provisions of this Agreement shall be applicable to any dispute between the Parties arising from this Agreement, whether prior to or following expiration or termination of this Agreement, until any such dispute is finally and completely resolved between the Parties, either by written settlement, entry of a non-appealable judgment or expiration of all applicable statutory limitations periods and all terms and conditions of this Agreement relating to dispute resolution and limitations on damages or remedies shall survive any expiration or termination of this Agreement. 2.16 Counterparts. This Agreement may be executed in one or more counterparts. All counterparts so executed shall constitute one agreement, binding on all Parties, even though all Parties are not signatory to the same counterpart. The Parties agree to accept signed copies of 5219-116462\1272220.1 9/2/15 7 this Agreement transmitted by electronic facsimile copies as original documents. The Parties acknowledge that copies of this Agreement may be transmitted by a Party over the Internet and printed by the recipient and that the printed document may contain different type styles and type sizes, different pagination and different formatting that the original copy of the Agreement in the possession of the Party sending the Agreement. The Parties agree that any such copies of this Agreement shall be accepted by the Parties as true and correct originals of this Agreement so long as the actual text of this Agreement remains the same. This Agreement constitutes the entire understanding and agreement of the Parties regarding the subject matter of this Agreement. IN WITNESS WHEREOF, the Parties have signed this Agreement by and through the signatures of their respective authorized representative(s) as follow: CITY: CITY OF DUBLIN, a California municipal corporation By: Name: Title: City Manager ATTEST: By: Name: Title: City Clerk APPROVED AS TO FORM: By: Name: Title: City Attorney OWNER: DUBLIN CA REAL ESTATE, LLC, a Delaware limited liability company By: Name: Title: 5219-116462\1272220.1 9/2/15 EXHIBIT A 5219-116462\1272220.1 9/2/15 5219-116462\1272220.1 9/2/15 5219-116462\1272220.1 9/2/15 EXHIBIT B 5219-116462\1272220.1 9/2/15