CITY COUNCIL AGENDA ITEM NO.

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CITY COUNCIL AGENDA ITEM NO. &

Meeting Date: October 22, 2013

Subject/Title: A Resolution approving a Memorandum of Understanding between the City of Brentwood and Liberty Union High School District regarding the Public Art and Design Academy mosaic sound wall mural at the cost of $35,268.53, amending the FY 2013/14 Operating Budget by increasing the Public Art Acquisition Fund by $35,268.53 and authorizing the City Manager or his designee to execute the Memorandum of Understanding and make minor technical revisions to it in consultation with the City Attorney

Prepared by: Poldina Scherff, Recreation Manager

Submitted by: Craig Bronzan, Director of Parks and Recreation

RECOMMENDATION

Adopt a Resolution approving a Memorandum of Understanding between the City of Brentwood and Liberty Union High School District regarding the Public Art and Design Academy mosaic sound wall mural at the cost of $35,268.53, amending the FY 2013/14 Operating Budget by increasing the Public Art Acquisition Fund by $35,268.53 and authorizing the City Manager or his designee to execute the Memorandum of Understanding and make minor technical revisions to it in consultation with the City Attorney.

PREVIOUS ACTION

On November 8, 2011, City Council adopted Resolution 2011-163 approving a Memorandum of Understanding between the City of Brentwood and Liberty Union High School District regarding the Arts and Humanities Academy mural at the cost of $18,000 and authorizing the City Manager or his designee to execute the Memorandum of Understanding and make minor technical revisions to it in consultation with the City Attorney.

On November 12, 2012, City Council adopted Resolution 2012-166 approving a Memorandum of Understanding between the City of Brentwood and Liberty Union High School District regarding the Arts and Humanities Academy utility box public art at the cost of $10,706 and amended the FY 2012/13 Operating Budget by increasing the Public Art Acquisition Fund by

$10,706 and authorizing the City Manager or his designee to execute the Memorandum of Understanding and make minor technical revisions to it in consultation with the City Attorney.

On October 8, 2013, City Council received a presentation on the options for a mosaic mural to be installed on the sound wall located at the corner of Brentwood Boulevard and Second Street by the Public Art and Design Academy (PADA) and chose the Sunflower design with the City motto and provided the following direction to staff for consideration: 7 foot tall by 140 feet in length, consideration of having the art work go from top to bottom of sound wall, paint the wall, install bollards at the corner and make sure the project is covered by the City’s insurance.

BACKGROUND

On August 21, 2013, the Liberty High School Public Art and Design Academy (PADA), formerly known as the Arts and Humanities Academy, presented five mosaic sound wall mural conceptual ideas to the Arts Commission. The goal of the project is to beautify a major thoroughfare through the City of Brentwood, and bring the community together over a beautiful

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mural installation. Five conceptual ideas for the sound wall on the corner of Brentwood Boulevard and 2^nd Street in front of the Liberty Adult Education building, across from Liberty High School, were explored. Scheme One: “Blossoms” using imagery of the life cycle of Brentwood’s cherry trees tied with a red ribbon. Scheme Two: “Oak Tree” using imagery of the City of Brentwood’s oak tree from acorns, saplings, to an oak tree. Scheme Three: “The Harvest” using imagery of the produce of Brentwood, focusing on the heritage of Brentwood and its agricultural background. Scheme Four: “Sunflowers” using imagery of the City’s motto Heritage, Vision and Opportunity. Scheme Five: “Abstract” using imagery with the City’s motto Heritage, Vision and Opportunity with graphic and eye-catching colors. The Arts Commission requested that the Public Art and Design Academy refine three of the five conceptual ideas presented; those include the Oak Tree, Sunflowers and the Abstract.

On September 18, 2013 the Public Art and Design Academy presented the final three designs of the mosaic sound wall mural to the Arts Commission. The three conceptual mosaic sound wall murals are located on the sound wall on the corner of Brentwood Boulevard and 2^nd Street and consist of the following: “Abstract”, “Sunflowers”, and “Oak Tree”. Each mural has two options: 7’ x 140’ and/or 7’ x 70’.

On October 8, 2013, the Public Art and Design Academy presented the final three designs of the mosaic sound wall mural to City Council, including the Arts Commission’s recommendation for the Sunflower design. After discussion, City Council approved the Sunflowers design and directed staff to consider a number of items before a Memorandum of Understanding would be brought back to City Council for approval.

The project will be 7 foot tall by 140 feet in length with consideration of having the art work go from top to bottom of sound wall and/or paint the wall. Upon further discussion with the students, it was determined that staff will coordinate with PADA on an appropriate color to blend the portion of the sound wall that will not be covered with mosaic tile. This color blend will feather off into the area were vegetation begins at the end of the mural. The additional cost for paint and labor is estimated at $225.32. The City’s traffic engineer does not recommend bollards be installed for the following reasons: 1) the corner has a rather narrow sidewalk that includes a traffic signal pole, 2) placing bollards at this location would make it impassable for ADA standards, 3) past the corner area the bollards would need to be placed behind the sidewalk, but due to a lack of any vegetation, the bollards would be close to the wall, which would be of little value. Any vehicle striking the bollards would simply knock them into the wall.

Where the vegetation starts is past the area where a vehicle is likely to strike the wall.

Once completed, staff will add the sound wall project to the City’s insurance.

The Arts Commission is recommending that City Council approve the Liberty Union High School District Memorandum of Understanding for the Public Art and Design Academy mosaic 7’ x 140’

sound wall titled “Sunflowers”, and authorize funds for this project from the Public Art Acquisition Fund in the amount of $35,268.53.

FISCAL IMPACT

This project will be funded through the Public Art Acquisition Fund in the amount of $35,268.53.

The breakout for the $35,268.53 is as follows: $16,962.89 for materials and supplies,

$15,040.00 for masonry sound wall preparation, and $3,265.64 for masonry wall paint and application of Seicoat anti-graffiti coating. The FY 2013/14 Operating Budget will be amended to include this expense. The Fund Balance at June 30, 2014 in Fund 268 – Public Art Program Acquisition is projected to be $822,693 including the requested adjustment of $35,268.53.

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No increase in maintenance cost is expected due to the anti-graffiti coating.

Attachments:

Resolution

Memorandum of Understanding

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RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING A MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF BRENTWOOD AND LIBERTY UNION HIGH SCHOOL DISTRICT REGARDING THE PUBLIC ART AND DESIGN ACADEMY MOSAIC SOUND WALL AT THE COST OF $35,268.53, AMENDING THE FY 2013/14 OPERATING BUDGET BY INCREASING THE PUBLIC ART ACQUISITION FUND BY $35,268.53 AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE THE MEMORANDUM OF UNDERSTANDING AND MAKE MINOR TECHNICAL REVISIONS TO IT IN CONSULTATION WITH THE CITY ATTORNEY

WHEREAS, the City desires to support the Public Art and Design Academy through the available public art acquisition fund; and

WHEREAS, the Arts Commission has recommended to the City Council a mosaic sound wall within the City of Brentwood be tiled by the students of the Public Art and Designed Academy of Liberty High School; and

WHEREAS, the mosaic sound wall will have a mosaic graphic of sunflowers, representing the City’s motto of heritage, vision, and opportunity; and

WHEREAS, supplies for the Public Art and Design Academy for the 7’ x 140’ mosaic sound wall will cost $35,268.53; and

WHEREAS, the Parties further desire to memorialize their relationship regarding the mosaic sound wall for Fiscal Year 2013/14 in a Memorandum of Understanding to set forth their respective roles and obligations.

NOW THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood approves a Memorandum of Understanding between the City and Liberty Union High School District regarding the Public Art and Design Academy mosaic sound wall at the cost of

$35,268.53 for Fiscal Year 2013/14 and amends the FY 2013/14 Operating Budget by increasing the Public Art Acquisition Fund expenditures by $35,268.53 and authorizes the City Manager or his designee to execute the Memorandum of Understanding and make minor technical revisions to it in consultation with the City Attorney.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on 22^nd day of October, 2013 by the following vote:

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MEMORANDUM OF UNDERSTANDING BETWEEN

LIBERTY UNION HIGH SCHOOL DISTRICT AND THE CITY OF BRENTWOOD

This Memorandum of Understanding (“MOU”) is entered this ____ day of _________, 2013 (“Effective Date”), by and between Liberty Union High School District (“District”) and the City of Brentwood, a municipal corporation of the State of California (“City”) (each a “Party” and collectively, the “Parties”.)

RECITALS

A. The City desires to support the District’s Public Art and Design Academy through the available public art acquisition fund.

B. The City desires a mosaic sound wall mural located at the corner of Brentwood Boulevard and 2^nd Street in Brentwood by the students of the Public Art and Design Academy of Liberty High School.

C. The sound wall will have a mosaic graphic of sunflowers representing the City’s motto of Heritage, Vision and Opportunity (the “Project”).

D. The Parties desire to memorialize their relationship in this MOU and to set forth their respective roles and obligations related to the City’s support of the Project.

NOW, THEREFORE, IT IS HEREBY AGREED by the Parties as follows:

1. Responsibilities of the District. Along with the terms and conditions of this MOU, the District agrees to be responsible for and complete those items set forth in the attached Exhibit A, which is incorporated herein by this reference.

2. Responsibilities of the City. Along with the terms and conditions of this MOU, the City agrees to be responsible for and complete those items set forth in the attached Exhibit B, which is incorporated herein by this reference.

3. Relationship of the Parties. It is understood that this is an MOU by and between independent contractor(s) and is not intended to, and will not be construed to, create the relationship of agent, servant, employee, partnership, joint venture or association, or any other relationship whatsoever other than that of independent contractor.

4. Term. This MOU will commence on the Effective Date and, unless terminated earlier pursuant to this MOU, will terminate June 27, 2014.

5. Indemnity. Except as to the sole negligence or willful misconduct of the District, City will defend, indemnify and hold the District, its officers, agents and employees, harmless from any and all loss, damage, claims, demands, liability, expense or cost, including reasonable attorneys’

fees, which arises out of, or is in any way connected with the performance of, the services by City or any of City’s employees, agents or subcontractors, notwithstanding that the District may have benefited from their services.

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Except as to the sole negligence or willful misconduct of City, the District will defend, indemnify and hold City, its officers, agents and employees, harmless from any and all loss, damage, claims, demands, liability, expense or cost, including reasonable attorneys’ fees, which arises out of, or is in any way connected with the performance of, the services by the District or any of the District’s employees, agents or subcontractors, notwithstanding that City may have benefited from their services.

The duty of the Parties to indemnify and save harmless as set forth herein, will include the duty to defend as set forth in Section 2778 of the California Civil Code. This Section 5 will survive the expiration of this MOU.

6. Insurance. Each Party will maintain comprehensive general liability insurance in the amount of one million dollars ($1,000,000) combined single limit to protect the Parties, their officers, employees and agents against claims for bodily injury, and property damage arising from the any Party’s participation in the activities described herein. The form of such insurance will be satisfactory to each Party and may include self-insurance at levels acceptable to the Parties. Each Party’s policy or policies will name the other Party as additional insured. This Section 6 will survive the expiration of this MOU.

7. Ownership Rights.

A. Copyrights.

1) Students and/or their parent or legal guardian (“Students”) and District shall retain all copyrights in and to any work(s) created under this MOU, provided that Students grant to City, by separate instrument, an irrevocable license to graphically depict the work for any non- commercial purpose whatsoever. For the purposes of this limitation, the graphic depiction of the work(s) on materials designed to promote City shall be deemed to be a non-commercial use. City shall not be responsible for any third party infringement of Students’ or District’s copyright. City reserves the right to post the Project art on the City of Brentwood’s website and in marketing publications.

2) If for any reason the Project, or any portion thereof, is not implemented, all rights to the proposed work shall be retained by Students and District.

3) District agrees that all work performed under this MOU shall comply with all applicable patent, trademark and copyright laws, rules, regulations and codes of the State of California and the United States. District hereby represents and warrants that the work does not, and District has not and will not, utilize any photographs, patent, trademark or copyright in performance under this MOU unless and until District has obtained proper permission and all releases and other necessary documents. If District specifies any material, equipment, process or procedure which is protected, District shall disclose such patents, trademarks and copyrights in the construction drawings and technical specifications, such listing to be appended to this MOU and shall be incorporated by this reference.

4) District agrees to release, indemnify, defend and save harmless City, its officers and employees from any and all claims, damages, suits, costs, expenses, liabilities, actions or proceedings of any kind resulting from the performance under this MOU which infringes upon any patent, trademark or copyright or other right protected by law.

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3 B. District Moral Rights; City Ownership Rights.

1) City intends to make its best efforts to display the work at the project site as originally created by Students and District and to maintain the work in good condition. However, City must preserve complete flexibility to operate and manage City properties. Therefore, subject to its obligation to make good-faith efforts to consult with Students as set forth in subparagraph (B)(3) below, City retains the absolute right to alter, repair, modify, remove, relocate, sell, dispose of, or destroy (collectively, “Modify”) the work in its sole judgment. For example, City may modify the work to eliminate hazards, to comply with the ADA, to otherwise aid in the management of its property and affairs, or through neglect or accident. If, during or after the term of this Agreement, City finds the project site to be inappropriate, City has the right to install the work at an alternate location that it chooses in its sole reasonable discretion.

2) With respect to the work produced under this Agreement, except as otherwise set forth herein, District waives any and all claims, arising at any time and under any circumstances, against City its officers, agents, employees, successors and assigns, arising under the federal Visual Artists Rights Act (17 U.S.C. §§106A and 113(d)), the California Art Preservation Act (Cal.

Civil Code §§987 et seq.), and any other local, state, federal or international laws that convey rights of the same nature as those conveyed under 17 U.S.C. §106A, Cal. Civil Code §§987 et seq., or any other type of moral right protecting the integrity of works of art. If the work is incorporated into a building such that the work cannot be removed from the building without physical defacement, mutilation, alteration, distortion, destruction, or other modification (collectively, “Modification”) of the work, District waives any and all such claims against any future owners of the Site, and its agents, officers and employees, for Modification of the work.

3) Where time permits, prior to and Modification of the work, City shall make reasonable good faith efforts to notify and consult with Students, at the last phone number or address provided by Students to the City, and to come to a mutually agreeable plan for disposition of the work. Such consultation shall be without charge by Students unless otherwise specifically agreed in writing. If the work is modified and City intends to maintain the work on display, City shall make a reasonable good faith effort to engage Students in the restoration of the work and to compensate Students for Students’ time and efforts at fair market value, which may be the subject of a future Agreement between Students and City. However, City has no obligation under this Agreement to restore the work or to compensate Students for any restoration work. If City Modifies the work without Students’ consent in a manner that is prejudicial to Students’ reputation, Students retain the right to disclaim authorship of the work in accordance with California Civil Code §987(d) and 17 U.S.C. §106A(a)(2).

4) Except as provided in this Agreement, with respect to third parties who are not officers, employees, agents, successors or assigns of City, District retains District’s moral rights in the work, as established in the Visual Artists Rights Act (17 U.S.C. §§106A and 113(d)), the California Art Preservation Act (Cal. Civil Code §§987 and 989), or any other local, state, federal or international moral rights laws that protect the integrity of works of art. Accordingly, nothing herein shall prevent District from pursuing a claim against a third party who is not an officer, employee, agent, successor or assign of City for Modification of the work. City has no obligation to pursue claims against third parties to remedy or prevent Modification of the work. However, as owner of the work, City may pursue claims against third parties for damages or to restore the work if a Modification of the work has occurred without City’s authorization.

8. Non-discrimination. The Parties will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment.

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9. Entire Agreement. This MOU and its Exhibits A and B set forth and contain the entire understanding and agreement of the Parties, and all oral or written representations, understandings or agreements are expressly stated in this MOU. No testimony or evidence of any such representations, understandings, or covenants will be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this MOU.

10. Amendments. Changes to the terms and conditions of this MOU will be made only by written amendment signed by the Parties.

11. Notices. All notices with respect to this MOU will be given by first class mail to the parties as follows:

City: City of Brentwood Attention: City Manager 150 City Park Way Brentwood, CA 94513

District: Liberty Union High School District Attention: Superintendent of Schools 20 Oak Street

Brentwood, CA 94513

Or to such other persons, addresses or telephone numbers as the Parties may designate in writing from time to time.

12. Termination. Either Party may terminate this MOU, by delivery of written notice of election to terminate to the other Party. In the event of termination and in addition to the requirements of Exhibit B, any unexpended funds will be returned to the Party that has contributed them.

13. Assignment. Neither Party will assign any right or obligation pursuant to this MOU without the written consent of the other Party. Any attempted or purported assignment without the written consent of the other Party will be void and of no effect.

14. Jurisdiction and Venue. Any action at law or in equity brought under this MOU for the purpose of enforcing a right or rights provided for by this MOU will be tried in a court of competent jurisdiction in the County of Contra Costa, State of California, and the Parties waive all provisions of law providing for a change of venue in these proceedings to any other county.

15. Paragraph Headings. Paragraph headings as used herein are for convenience only and will not be deemed to be a part of such paragraphs and will not be construed to change the meaning thereof.

16. Waiver. Waiver by either Party of any default, breach or condition precedent will not be construed as a waiver of any other default, breach or condition precedent or of any other right under this MOU.

17. Severability. If any term, provision, covenant, or condition of this MOU is ruled invalid, void, or unenforceable by a court of competent jurisdiction, this MOU will nonetheless remain in full force and effect as to all remaining terms, provisions, covenants, and conditions.

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6 Exhibit A

District Responsibilities

1. District to provide students for the Project.

2. The project location for the 7’ x 140’ mosaic sound wall is at the corner of Brentwood Boulevard and 2^nd Street with a graphic of sunflowers representing the City’s motto of Heritage, Vision and Opportunity.

3. District to provide adult faculty supervision for the duration of the Project.

4. District to purchase supplies and equipment needed for Project in the amount of

$16,962.89.

5. Ensure that students and their parents or legal guardians sign an Ownership Rights Form related to the project.

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7 Exhibit B City Responsibilities

1. City will approve safety plan for the mosaic sound wall during the Project.

2. City to pay $16,962.89 for supplies and equipment.

3. City to contract for masonry sound wall preparation prior to start of Project not to exceed

$15,040.00.

4. City to purchase and apply soundwall paint and Seicoat anti-graffiti coating after Project is complete not to exceed $3,265.64

5. City to accept long term maintenance and insurance of the mosaic sound wall, but City retains the absolute right to alter, repair, modify, remove or destroy the Project in its sole judgment.