Arts Panel Rejection of San Pablo Icons Improper, City Says — Public Hearing Set

The long-delayed plan for El Cerrito's largest public arts project — large icons attached to streetlight poles the length of San Pablo Avenue — has hit a new legal snag, with city officials saying the was not properly done.

Instead, the artists will prepare a more detailed proposal for presentation again next month at an Arts and Culture Commission meeting that will include a public hearing, according to Assistant City Manager Karen Pinkos.

The new wrinkle — coming after the commission gave a thumbs down to the proposed design — raised concerns among some commissioners that the "legal formality" of having the artists prepare and present a more detailed version of the design is a waste of time and money.

"But why should they go through that process if we've rejected it?" asked commission chair Joyce Hawley.

"Because we need to follow the contract," Pinkos said. Not following the contract could leave the city vulnerable to a breach-of-contract claim, she said.

The commission voted 5-0 on April 20 to ask the two Berkeley artists commissioned to do the $100,000 project, Jonathan Russell and Saori Ide, to come back with different designs. The artists had proposed 50 large, brightly colored, simplified images of people and objects that had been criticized as resembling "clip art" and not representative of El Cerrito. The commission asked them to return with abstract designs in copper.

But the commission's action did not conform with the city's contract with the artists, city staff told the panel at its monthly meeting Wednesday night. The city attorney's office and an attorney for the artists say the contract calls for the artists to present their designs in a formal, detailed "final design proposal" before the commission can vote on it, according to a city staff report to the panel.

"It was determined by the City Attorney that the motion made in April to reject the Artist's current design and direct the artists to submit an alternate design was not procedurally in the correct order per the contract," according to a slide presentation given by Pinkos to the commission.

Under the contract, Pinkos said, the commission can not accept or reject the proposed design until after the artists have presented a "final design proposal" that includes a detailed budget breakdown, engineering specifications, exact maintenance provisions, a specific timeline for fabrication of the icons and other details.

A copy of the contract provisions containing the services required of the artists and commission responsibilities — called "Exhibit A" — is attached.

When the commission voted against the artists' proposed design last month, the artists had presented drawings of the images and proposed locations. They had earlier presented a mock-up of a full-sized image that was temporarily mounted on a streetlight pole next to City Hall.

At the April meeting, Russell and Ide expressed frustration over having worked months refining designs that they said received tacit if not explicit commission endorsement at past meetings, but some commissioner and citizens said objections to the designs have been voiced all along.

After the meeting, the artists said they were willing to come back to the commission with a revised design.

Their contract with the city, signed in March last year, obliges them to return with one alternate design if their original proposal is not accepted.

Assistant City Attorney Inga Lintvedt told the commission that the artists maintain they have already spent $40,000 on design and on time spent attending commission meetings. Under the contract, they've been paid $25,000 of the $100,000 commission, with the remaining $75,000 to be paid for fabrication and installation of the icons.

Pinkos said the commission has three choices: accept the proposed designs as they are, ask the artists to return with an alternate design, or reject the artists' proposal and reopen the competition to new artists. Russell and Ide were chosen in an open competition that attracted 17 proposals.

If the commission rejects the design again during or after the June meeting and hearing and wants the same artists to offer a revised design, it must provide reasons in writing, Pinkos and Lintvedt said.

"You need to give them enough guidance to come back with an alternative,"  Lintvedt said.

And if the commission reaffirms its April decision, the contract will have to be revised and be resubmitted to the City Council for approval, Lintvedt and Pinkos said.

The commission provided a list of criteria for a new design in their April vote against the proposed design. They asked the artists to come back with three images that are:

Abstract
Non-color or copper
Sculptural
Integrated
Uniquely stylistic

The motion also asked for a "a plan detailing the new approach for the whole Avenue."

The City Council can override any decision by the arts commission, Pinkos noted.

Commissioner Nancy Donovan questioned whether the artists were acting in "good faith," saying, "Why would artists who've allegedly spent $40,000 worth of their time want to go chapter and verse to spend a lot more time (on submitting a formal, detailed version of a rejected design).

Lintvedt said a possible "good faith reason" would be to avoid being vulnerable to failure to fulfill the contract.

The contract legalities assumed a prominent role after the commission's April vote against the proposed designs. After the meeting, the artists contacted Pinkos and Suzanne Iarla, community outreach specialist for the city manager's office, and said they want to continue to work on the project and that they had talked to an attorney about the contract, Pinkos told the commission.

"They expressed that they want to continue to work with the Arts and Culture Commission, and they are willing to go in a new direction or an alternate direction," Pinkos said. "However, they consulted their attorney ... and their attorney wants to insure the contract is being followed by both parties."

Pinkos then consulted with Lintvedt, and they agreed that the commission action in April was "out of order," Pinkos said.

The June meeting of the commission and public hearing with the formal presentation of the icon designs are tentatively set for June 15 at City Hall, Pinkos said. The city will distribute public notices at least 10 days before the meeting, she said.

For background documents on the San Pablo Avenue Streetscape public art project, click here.