Loading...
HomeMy WebLinkAboutDR Horton Bay- Agreement Regarding Design and Installation of Two Pieces of ArtworkAGREEMENT BETWEEN THE CITY OF GILROY AND D.R. HORTON BAY, INC. REGARDING THE DESIGN AND INSTALLATION OF TWO PIECES OF ARTWORK AND PAYMENT OF A COMMUNITY BENEFIT This agreement ( "Agreement ") is dated for identification this /yth day of` m6u,-, 2013 and is made among the CITY OF GILROY, a municipal corporation, ( "City "), D.R. HORTON BAY, INC. ( "Developer "). The City and Developer may be referred to in this Agreement individually as a "Party" or collectively as the "Parties." RECITALS WHEREAS, Developer is the owner of that certain real property with APN nos. 790 -06- 016, 790 -06 -032, and 790 -06 -033, consisting of 91 partially improved single family residential lots ( "Property ") located in the City of Gilroy ( "City "), County of Santa Clara, State of California, commonly known as "Windsong" and formerly referred to as "Harvest Park." The Property has been subdivided into 91 single family residential lots as shown on the final map for Subdivision Nos. 9950. WHEREAS, Developer and City entered into that certain Property Improvement Agreement No. 2012 -03 Harvest Park — Tract 9950 dated November 19, 2012 and recorded as document number 21979681 in the Official Records of Santa Clara County. WHEREAS, the City approved Developer's Architecture and Site application 912 -04, subject to several enumerated conditions of approval. Condition of Approval #27 states the following: 27. The developer shall enter into an agreement with the City to donate $30,000 for the future City park located at the southeast corner of Vickery Avenue and Wren Avenue, and to install two pieces of public art on parcels B and E. Design and installation of the public art shall be subject to the review and approval of the City's Arts and Culture Commission. WHEREAS, this document is the agreement between the City and the Developer, which Condition of Approval 27 requires. Execution of this Agreement and compliance with the terms and conditions herein shall be full and final satisfaction of Condition of Approval #27. NOW, THEREFORE, in consideration of the recitals, mutual promises, and agreements and subject to the terms and conditions set forth herein, the Parties agree as follows: 1. Payment. Developer shall make a one -time lump sum payment in the amount of thirty thousand dollars ($30,000) to the City. This money is to be used for park improvements for a future city park, which will be located at the southeast corner of Vickery Avenue and Wren Avenue in Gilroy, California. This payment is due prior to, and is a condition of approval for, the City's issuance of a building permit for the 45th home to be built in the subdivision. 2. Art Installation. Developer shall c a u s e a n a r t i s t t o install two original pieces of art ( "Artwork ") to the City, according to the terms below: a. Artist Selection — Developer shall solicit proposals for, and select and retain, an artist to design, build, and install two original pieces of art. b. Design Approval — The Gilroy Arts and Culture Commission ( "Commission ") is a citizen's advisory body and policy advocate for the Gilroy City Council and city staff. Design of the Artwork will be determined through a public process with final approval by the Commission. The Developer shall submit design proposals to the Gilroy Public Art Committee ( "Committee ") for recommendations on which design(s) to submit to the Commission for final approval. Upon Developer's submission of proposals to the Committee, the Committee shall review and provide a written recommendation within 10 business days of such submission. Following a recommendation for approval from the Committee, the Commission shall schedule the Artwork for the next scheduled public hearing. Final design approval for both pieces of Artwork may only be granted by the Commission. C. Workmanship — The Artwork shall be free from structural defects in materials and workmanship and shall be installed in conformance with the final approved design. d. Timing — Developer shall install the Artwork prior to the City's issuance of the 85th building permit for a home to be constructed in this subdivision. Notwithstanding the foregoing, provided Developer has previously submitted a design proposal to the Commission, Developer may elect, at Developer's option, to place a bond or other security approved by the City in the amount of the estimated cost of the Artwork to secure Developer's obligation to install the Artwork and in such event Developer may obtain all building permits prior to completion of the installation of the Artwork. e. Artist's Rights Waiver — Developer shall cause the artist to install the Artwork free and clear of any legal obligations to the artist. Developer shall require the artist to waive all legal rights to the Artwork, including but not limited to copyright, trademark, or patent claims as well as to any preservation rights under Civil Code § 987. f. Location — Developer shall install the Artwork on parcels B and E located at the southeast corner of Wren Avenue and Vickery Avenue, as shown in the diagram, which is hereby incorporated as Exhibit A to this Agreement. The Parties acknowledge that parcels B and E are privately owned open space parcels that are not open to the public. The specific locations of the installation of the Artwork within parcels B and E is to be determined by the Commission in the course of the design approval process specified above in Section 2(b). The location of the Artwork may be changed upon the mutual written agreement of the Parties. 3. Expenses. Developer shall be responsible for all costs and expenses incident to the performance of the terms and conditions in this Agreement, including but not limited to, all costs of equipment used, all fees, fines, licenses, bonds or taxes required of or imposed against Developer and all other of Developer's costs for performing the obligations stated in this Agreement. The scope and cost of the Artwork required by City, and approved by the Commission, shall be proportional to the impacts created by the Project. City shall make written findings regarding the scope and cost of the art required for the Project during the approval process, and may consider art required for similarly sized projects in making such determination. 4. No Third Party BeneficiarX. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. 5. Successors and Assigns. The terms of this Agreement shall constitute covenants running with the land and shall be binding upon the Developer, its successors and assigns, and any subsequent owners. 6. Hold Harmless. (a) Developer shall indemnify, defend, and hold harmless City, and its employees from any and all claims of third persons for (i) personal injury or property damage claims arising out of the intentional or negligent acts of Developer's employees, agents or independent contractors in the course of installing the Artwork or caused by a structural defect in materials or workmanship of the Artwork. This indemnity shall not apply to the active negligence, sole negligence or willful misconduct of the City. (b) Developer shall, or shall cause the Artist to, hold City harmless, and its respective agents, employees, directors and representatives from any and all claims or actions arising out of this Agreement for copyright infringement for the Artwork created pursuant to this Agreement. 7. Insurance. Developer shall maintain and shall cause each person entering the installation sites to perform the work required to maintain a policy or policies of commercial general liability and automobile liability insurance insuring against claims and liabilities arising directly from or related to such work at the sites. Such insurance shall have limits of not less than One Million Dollars ($1,000,000) per occurrence, with umbrella liability limits of at least Two Million Dollars ($2,000,000) and shall (i) be written on an occurrence and not on a claims made basis; and (ii) specifically name City, and its respective agents, employees, directors and representatives as additional insureds; and (iii) not be canceled or changed without thirty (30) days prior written notice to City; and (iv) insure the indemnity obligations of the insuring party as set forth in Section 6(c) above; and (v) provide coverage which is primary to any coverage carried by City and /or their respective agents, employees, directors and representatives, and not in excess thereto (nor shall any such insurance carried by City or its respective agents, employees, directors and representatives contribute to such insurance maintained by Developer). In addition, Developer and its independent contractors shall maintain workers' compensation and employers' liability insurance as required by law. Said policy(ies) shall be issued by an insurance carrier having a rating of Best AX or better and shall be delivered to City at the time of the execution of this Agreement. 8. Completion. Upon completion of the Artwork, Developer shall notify City of such completion, and City shall conduct a final inspection of the Artwork. City shall either provide a punch list of any necessary structural repairs, or other necessary correction items for health and safety reasons or provide its final approval of the Artwork ( "Completion "). In no event shall the inspector, or the City, have the right to require changes or modifications to the Artwork solely due to artistic or other discretionary determinations if the Artwork is substantially in conformance with the approved design for the Artwork. Upon Completion of the Artwork, this Agreement shall terminate and the Parties shall have no further obligations hereunder, provided however, the following provisions of this Agreement shall survive termination: Section 2(c) — Workmanship, Section 2(e) — Artist's Rights Waiver, Section 5 — Successors and Assigns, Section 6 — Hold Harmless, and Section 9 — Attorney's Fees. 9. Attorneys ' Fees . If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to its reasonable attorney's fees and costs in addition to any other relief to which the party may be entitled. 10. Notice. Any notice required or desired to be given pursuant to this Agreement shall be in writing with copies directed as indicated below and shall be personally delivered or deposited in first class U.S. mail to the following: To City: City of Gilroy P.O. Box 7540 CA 94039 -7540 Attn: City Manager To Developer: D.R. Horton Bay, Inc. 5050 Hopyard Road, Suite 180 Pleasanton, CA 94588 Attention: Jed Bennett Any Party may change its respective address by giving written notice to the other Party in accordance with the provisions of this Section. 11. Entire Agreement. This Agreement contains the entire agreement between the City and Developer, and supersedes all prior agreements, proposals, or estimates by or between any of the Parties hereto relating to the subject matter of this Agreement. 12. Captions. The captions and section headings in this Agreement are inserted for reference purposes only, and shall not be used to interpret any provision of this Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year written below. APPROVED AS TO FORM: City Attorney "Developer" - D.R. HORTON BAY, INC. By: -- Title Vice President Dated: AaSJS; 1 _ Zcg-3