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HomeMy WebLinkAbout4.04 Shannon Ctr Art c~rY CLERK F~le # D~[QJ[{2]{~J[ll] AGENDA STATEMENT CITY COUNCIL MEETING DATE February 19,2008 SUBJECT Consultant ServIces Agreements-Shannon Commumty Center Art ProJ eet Report by John Hartnett Hentage & Cultural 4rts Supet visor A TT ACHMENTS 1 ArtIst Agreement With TncIa George 2 Artist Agreement With Marganta Soyfertts 3 ArtIst Agreement With Cohn Lambert & Peter Adams RECOMMIENDAflON ~ 0U Approve Artist Agreements and authonze Mayor to execute the Agreements FINANCIAlL STATEMENT The Consultants Will be pald fixed fees not to exceed a total of $95,00000 SuffiCient funds are avallablc In the project budget to execute the Agreements DESCRIPTION One of the high pnonty goals for Fiscal Year 2007-2008 ]S to faclhtate mcluslOn of artworks In the Shatmon CommuIllty Center ReconstructIOn project' In fuly 200G, the CIty Council detennmed that 1 % of the total capital prOject budget for the Shannon Commul1Ity Center (or $104,785) should be allocated for Public Art The at lists choscn to perform the work are, Tnc]a George, murahst tor the 1l1door & outdoor preschool area, Marganta SoyfertIs, mosaic tile artist for the outdoor fountain and bndge, and Cohn Lambert & Peter Adams, muralist/sculptures for the mdoor lobby wall The artists prepared mock-ups of theIr proposed deSigns and presented them to the Art SelectIOn Committee, the Hcntage and Cultural Arts CommlsSlOn and the Parks and Commul1lty ServIces CommlsC:;lon On December 18, 2007, the CIty Councll approved the conceptual deSigns at1d budget allocatIOns for the three artists The attached agreements reflect the scope of services for each drtIst as well as the schedule for completion of the work th,lt has been coordll1ated with the buIidll1g constmctlon schedule Upon approval of the agreements, Staff dntlclpates that the artworks will be mstalled 111 Fall 2008 COpy 1'0 Jll'EM NO q'f Page 10f2 G \C OUNC II \AgLmld C:;1d.kmLnl~\2008\2 19 "hJnnOll C.onlll1Ulllly CLlllLr Arl"l C onlr acts doc RECOMMENDATION It IS the recommendatIOn of Staff that the City CouncIl approve the Agreements with artIsts Tncla George, Marganta SoyfertJs, and Cohn Lambert & Peter Admns and authofl7e the Mayor to execute the Agreements c2~cQ }i55 AGREEMENT BETWEEN THE CITY OF DUBLIN AND TRICIA GEORGE RELATING TO THE PROVISION OF ARTISTIC SERVICES FOR A PUBLIC ART PROJECT This Agreement IS made by and between the City of Dublin, a political subdIvIsion of the State of California (hereafter "City"), and Trlcla George (hereafter "Artist") this 19th day of February, 2008 RECITALS WHEREAS, the City requires the services of Artist to perform artistiC services desCribed In the Agreement for a public art project, and WHEREAS the City IS authorized by Section 2 36 050 of the Dublin MUnicipal Code to contract for the specialized services of the adVISor contemplated by thiS Agreement, and WHEREAS, Artist IS qualified and desires to perform the artistiC services required by the City as set forth In thiS Agreement, and WHEREAS the City Council on December 18 2007, authorized an agreement between City and Artist for the preparation of a final deSign and fabrication for the work that Artist Will prepare for the Shannon Community Center public art project (hereafter "Work") NOW THEREFORE, In conSideration of the mutual promises contained herein, the parties hereto agree as follows AGREEMENT ARTICLE 1 SCOPE OF WORK 1 1 For services rendered herein City shall pay Artist a sum not to exceed lWENTY THOUSAND DOLLARS ($20,000 00) for work performed dUring the period beginning February 20th through completion of the Shannon Community Center Artist shall furnish services as deSCribed In Exhibit A of thiS Agreement Terms and conditions for payment are attached In Exhibit B of thiS Agreement 1 2 The City shall be responsible for proViding the ArtiSt, without cost, copies of deSigns draWings, reports and other relevant data needed by the Artist to deSign and execute the Project Agreement for ArtistiC Services n~1t4 4 oL ,qlog ~ ATTACHMENT 1 0 cK~$ 1 3 Tncla George will create two murals for the Shannon Community Center Mural #1 will be located In the Intenor preschool area and Mural #2 will be located In the extenor play yard 1 4 The Artist shall begin work after the execution of this Agreement ARTICLE 2 CHANGES IN SCOPE AND ADDITIONAL WORK 2 1 The Artist shall, whenever required dunng the term of this Agreement present to the City In wntlng, draWing, or other appropnate media for further review and approval any significant changes In the scope deSign, color, Size, matenal, utility and support requirements texture, or location of the site or the Work A significant change IS any change which affects the Installation, scheduling, site preparation, or maintenance of the Work, or the concept of the Work as represented In the onglnal approved deSign 2 2 The Artist shall be obligated to perform the services called for In Exhibit A The Artist and the City agree that the Artist shall retain artistic control of his/her services In the performance of the services under this Agreement, subject only to the limitations Imposed In Exhibit A 2 3 Notwithstanding the provIsions of Section 2 2 above the City may at any time, request the Artist In wntlng to revise portions of the services that he/she has previously completed In a satisfactory manner delete portions of the Scope of the Work that the Artist has not yet performed perform additional work beyond the Scope of Work to be proVided In Exhibit A or make other changes Within the General Scope of the Work to be performed under thiS Agreement In the event of such a wntten request the Artist may, but shall not be obligated to agree to any such request 24 In the event the request for change IS agreed to by the Artist thiS Agreement shall be amended In wntlng, specifYing the agreed changes Including but not limited to, a descnptlon of services, additional budget, payment schedule and timetable 2 5 In the event that the Artist does not agree to the request the City shall be entitled to terminate the Agreement for cause pursuant to Article 17 herein 2 6 No services for which additional compensation will be charged shall be proVided by the Artist Without the pnor wntten authonzatlon by the City ARTICLE 3 RESPONSIBILITY OF THE ARTIST 3 1 The Artist agrees that an essential element of thiS Agreement IS the skill and creativity of the Artist The Artist shall not assign the creative or artistic portions of the Work to another party for the production of the Work Without the wntten consent of Agreement for ArtistiC Services Page 2 of 13 February 19 2008 J c;f56 the City Failure to conform to this provIsion may be cause for termination of thiS Agreement, at the sole option of the City 3 2 The Artist shall be responsible for providing services descnbed In Exhibit A Including but not limited to, the quality and timely completion of the services The Artist shall be responsible for deslgnrng the Work so that It can be constructed without exceeding the approved overall budget for the project The Artist shall, Without additional compensation, correct or revise any errors, omiSSions or other defiCIencies In his/her Work 3 3 In the event the services of the Artist are Integrated Into, combined, or otherwise coordinated With services by third parties not Within the control of the ArtiSt, the Artist shall not be responsible for such third party services If any part of the Artist's Work depends for proper execution or results upon the work of the City, or a third party responsible to the City, the Artist shall, pnor to proceeding With hIs or her Work promptly report to the City any apparent discrepancies or other defects In such other work which renders It unsuitable for proper execution and results by the Artist The Artist shall not be responsible for any liability or failure to fulfill his/her obligations because of such discrepancies or defects Failure of the Artist to report a discrepancy or defect shall constitute an acceptance of the City's or third party's work as fit and proper to receive Artist's Work Any costs caused by defective or III-timed work shall be borne by the party responsible therefore Nothing In thiS section shall limit the responsibility of the Artist to take all reasonable steps to coordinate his/her Work With the work of the City or of a third party on the project 34 If the Artist IS Involved In the execution, fabncatlon, transportation, Inspection, and/or installation of the Work, the follOWing proVIsions shall apply a The Artist shall, If and when working on City property, supervise such clean-up as may be reasonably requested by the City At the close out of the Artist's Work, the Artist shall remove his/her equipment, excess matenals, etc , promptly and as requested by City b The City and any third party contractor on the project shall notify the Artist of their operation, construction, and maintenance schedules In and around the area where the Artist's Work IS to be performed The Artist shall perform his/her services In a manner and time so as not to cause Interference With any of the operations construction, or maintenance of the City or third party contractor In the event of a conflict between the schedules of the contractor and/or the City and the ArtiSt, the conflict WIll be resolved by the City If the resolution of the conflict results In a delay of the performance of the ArtiSt, the Artist shall have the nght to renegotiate thiS Agreement to compensate him or her for any additional costs or expenses caused by the delay If such delay prevents Artist from complYing With the schedule In Exhibit A, Artist shall not be consIdered to Agreement for ArtistiC Services Page 3 of 13 February 19 2008 4155 have breached this Agreement, and Artist and City shall agree to amend the schedule m wntmg c The Artist shall complete the fabncatlon and mstallatlon of the Work In substantIal conformity with the attached Exhibit A, Scope of Work 35 The nsk of loss or damage to the Work shall be borne by the Artist until fmal acceptance by City, and the Artist shall take such measures as are necessary to protect the Work from loss or damage until final acceptance by City, except that the nsk of loss or damage shall be borne by the City pnor to final acceptance dunng such penod of time as the partially or wholly completed Work IS m the custody, control, or supervision of the City or ItS agents for the purposes of transportmg, stonng, Installing or performmg any other anCillary services to the Work ARTICLE 4 WARRANTIES/STANDARDS 4 1 The Artist warrants that (a) the design of Work bemg commissioned IS the onglnal product of his/her own creative efforts, (b) unless otherwise stipulated, the work IS anginal that It IS an edition of one (1), and that the Artist shall not sell or reproduce the Work, or allow others to do so, Without the pnor wntten consent of the City 4 2 The Artist shall guarantee his/her Work to be free from faults of matenal and workmanship for a penoa of one (1) year after Installation and Tlnal acceptance by the CIty The Artist shall deliver the Work to the CIty free and clear of any liens from any source whatever The foregoing guarantees shall apply only to the Work that IS entirely that of the Artist or persons responsible to the Artist, as Installed, and shall not apply to matenals or workmanship of projects In which the Work of the Artist IS Integrated or combined, or to matenals purchased, acquired, or mstalled by a person or entity not responsible to the Artist 4 3 The Artist shall faIthfully perform the work required under thiS Agreement In accordance WIth standards of care, skill tramlng diligence, and Judgment proVided by highly competent profeSSionals who perform work of a Similar nature to the Work descnbed m thiS Agreement ArtIst shall assign only competent personnel to perform services pursuant to thiS Agreement In the event that City, In ItS sole discretion, at any time dunng the term of thiS Agreement, desires the removal of any such persons Artist shall, Immediately upon receiving notice from City of such desire of City cause the removal of such person or persons, unless m the Artist's sole OpinIOn, the skill or creativity of such person or persons IS essential to the creation of the Work ARTICLE 5 COMPENSA nON 5 1 The ArtIst shall be paid for services satlsfactonly rendered pursuant to thiS Agreement In accordance With the terms herem, Exhibits A and ~, and subsequent adjustments, changes or additions as specifically proVided for m thIS Agreement Such Agreement for Artistic Services Page 4 of 13 February 19 2008 5155 payment shall be full compensation for work performed and services rendered, for all supervision, labor, supplies, matenals, equipment or use thereof, for taxes and for all other necessary Incidentals Including transportation and storage of Work 52 The amount and schedule of payments to the Artist are contained In the attached Exhibit B, Conditions & Terms of Payment Payments under this Agreement shall not exceed a maximum amount of $20,000, subject only to adjustments, changes, or additions as specifically provided for In this Agreement (hereafter "Total Price") 5 3 In the event the Artist Incurs costs In excess of the Total Pnce, the Artist shall pay such excess from his/her own funds, the City shall not be reqUired to pay any part of such excess, and the Artist shall not have claim against the City on account thereof 54 The Artist shall submit inVOices to the City according to the schedule provided for In Exhibit B Such InVOices shall be In the form requested by the City 55 In the event that the City determines that Work for which It has been invOIced does not meet the contract specifications, and that It Intends to withhold payment, the City shall provide detailed wntten notice to the Artist within fifteen (15) days of receipt of Invoice specifYing the failure of performance for which the City Intends to withhold payment The Artist shall thereafter meet contract standards to the satisfaction of the City or advise the City that he/she disputes the City's determination that the specifications have not been met 56 The City shall pay all inVOices that meet contract specifications within thirty (30) days of receipt of InVOice 57 No payment to the Artist for any work performed or services rendered shall constitute a waiver or release by the City of any claims, nghts or remedIes It may have against the Artist under thiS Agreement or by law, nor shall such payment constitute a waiver, remiSSion or discharge by the City of any failure or fault of the Artist to satisfactorily perform the work as required under thiS Agreement 5 8 The services to be required of the Artist under thiS Agreement shall be completed In accordance With the schedule for completion of the Work, as provided for In ExhibIt A, provided that such time limits may be extended or othelWlse modifIed by written agreement between the Artist and the CIty 5 9 If when the Artist completes fabncatlon or procurement of the Work In accordance With the approved schedule and notifies the City that the Work IS ready for Installation, the Artist IS delayed from installing the Work Within the time speCified In Exhibit A as a result of the construction of the site for the Work not being suffiCiently complete reasonably to permit Installation of the Work therein, or If the City othelWlse does not make the site available to the Artist In accordance With the approved schedule the City shall promptly reimburse the Artist for reasonable transportation and storage costs Incurred for the period between the time provided In Exhibit A for commencement Agreement for ArtistiC Services Page 5 of 13 February 19 2008 0~55 of Installation and the date upon which the site IS made available to the Artist for installation of the Work 5 10 The Artist shall bear any transportation and storage costs resulting from the completion of the Work pnor to the time provided m the schedule for Installation of the Work 5 11 The City shall always grant a reasonable extension of time to the Artist m the event that there IS a delay on the part of the City In performing ItS obligations under thiS Agreement or In completing the underlYing capital project, or If conditions beyond the ArtiSt's control render timely performance of the Artist's service Impossible or unexpectedly burdensome Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control Will not be conSidered a breach of thIS Agreement, as long as such obligations shall be suspended only for the duration of the conditions causmg the delay 5 12 For delays In the Installation of the Work beyond the schedule prOVided for under thiS Agreement caused by factors reasonably under the Artist's control the City agrees to accept fifty dollars ($50 00) per day as liqUidated damages for such delay ARTICLE 6 ARTIST'S RIGHTS 6 1 The City shall, at ItS expense, prepare and mstall at appropriate locations, after consultatIon With the ArtiSt, a plaque or sign Identlfymg the ArtISt, the title of the Work, and the year of completion The City shall also reasonably mamtam such notice m good repair against damages due to normal wear and tear over time, vandalism and the elements 62 The City recognizes that mamtenance of the Work on a regular baSIS IS essential to the Integrity of the Work The CIty shall reasonably assure that the Work IS properly mamtalned and protected, taking Into account the recommendations of the ArtIst as stated In the maintenance program provided by the Artist 6 3 The City agrees that It shall not mtentlonally damage, alter, modify, change, or substantially relocate the Work of the Artist Without first conferring With the Artist and obtalnmg the pnor wntten approval of the Artist to the proposed modification, change, or substantial relocation 64 Notwithstanding the Artist's refusal to prOVide (or the City's failure for any reason otherwise to obtam) the Artist's written approval proVided for In Section 63 above, the City In Its sole discretIon shall have the nght to remove any work of art proViding the followmg terms and conditions are met a The removal proposal shall first be submitted to and conSidered by the City Council Agreement for ArtistiC SerVIces Page 6 of 13 February 19 2008 7~55 b The City Council shall have the non-delegable duty to decIde that a work of art shall be removed The decIsion to remove shall not be made by the City Council until It has reviewed the removal proposal c In the event that the City Council decides to remove the Work, the ArtIst shall have the first fight of refusal to purchase his/her Work, If It stands alone and IS not Integrated Into a larger artwork bUilding, or structure and can be removed without expense to the City The Artist shall also have the right to have his/her name removed from the Work, as well as from the plaque mstalled pursuant to Section 6 1 6 5 The City shall have the right to determine, after consultation with a profeSSional conservator, when and If repairs and restorations to the Work W]1l be made DUring the ArtiSt's lIfetime, the Artist shall have the right to approve all major repairs and restorations, whIch approval the Artist shall not unreasonably Withhold If the Artist unreasonably falls to approve any repaIr or restoration, the City shall have the right to make or supervise significant repairs and restorations In the event that the City makes repairs or restorations not approved by the ArtiSt, the Artist shall have the right, at his/her sole option, to have his/her name and aSSociation With the Work severed To the extent practical, the ArtiSt, dunng his/her lifetime shall be given the opportunity to make or supervise signifIcant repairs and restorations and shall be paid a reasonable fee for any such service, If the CIty and the Artist shall agree, In Writing, prior to the commencement of any significant repairs or restorations, upon the Artist's fee for such services 66 All repairs and restorations, whether performed by the ArtIst the City, or third parties responsible to the Artist or the City, shall be made In accordance With profeSSionally recognized pnnclples of conservation of artworks ARTICLE 7 COPYRIGHTS 7 1 The Artist shall retain all COPYright and other rights In and to the Work created under thiS Agreement, other than ownership of the Work Itself Artist shall grant to the City an Irrevocable I]cense to graphically depict the artwork In any non- commercial manner whatsoever For the purpose of thiS limitatIon the graphiC depiction of the artwork(s) on matenals deSigned to promote the CIty shall be deemed to be a non-commercial use 72 If for any reason the proposed deSign IS not Implemented all nghts to the proposed artwork shall be retained by the Artist 7 3 The Artist agrees that all work performed under thiS Agreement shall comply With all applicable patent, trademark, and COPYright laws, rules, regulations, and codes of the United States The Artist further agrees that the Work Will not utilize any protected patent, trademark, or copynght In performance of work under thiS Agreement, unless the Artist has obtamed proper permISSion and all releases and other necessary Agreement for ArtistiC Services Page 7 of 13 February 19 2008 8~55 documents and provided copies of such releases and documents to City If the Artist specifies any material equipment, process, or procedure that IS protected, the Artist shall disclose such patents, trademarks and cOPYrights In the construction drawings and technical specifications 74 The Artist agrees to release, indemnify, and hold harmless the City, ItS officers and employees from any and all claims, damages, SUitS, costs expenses, liabilities, actions, or proceeding of any kind resulting from the performance of work under this Agreement that Infringes upon any patent, trademark, or cOPYright protected bylaw 7 5 All reproductions by the City shall contain a credit to the ARTIST and a copynght notice substantially In the following form @ Tncla Georqe, 2008 The Artist shall use his/her best efforts to Include a credit readmg substantially "An onglnal work commissioned by the CIty of Dublin California" In any publiC showing under the Artist's control of reproductions of the Work ARTICLE 8 NO EMPLOYER/EMPLOYEE OR AGENCY RELATIONSHIP 8 <1 No relationship of employer and employee IS created by thiS Agreement, It berng understood that Artist shall act hereunder as an Independent contractor and not as an employee of City City shall have the right to control Artist's work only Insofar as the results of Artist's services rendered pursuant to tnls Agreement ArtIst shall not have any claim under thiS Agreement or otherwise agamst City for seniority vacation time, vacation pay Sick leave personal time off, overtime, health Insurance, medical care hospital care, retirement benefits Social Security, disability, Worker's Compensation or unemployment rnsurance benefits, CIVil service protection, or employee benefits of any krnd Artist shall be solely liable for and obligated to pay directly all applicable taxes, rncludlng but not limited to Federal and State rncome taxes Artist shallmdemnlfy and hold City harmless from any and all liability that City may rncur because of Artist's failure to pay such taxes Notwithstanding the foregoing If the City determmes that pursuant to state and federal law, Artist IS an employee for purposes of Federal and State tax WithholdIng City shall upon two weeks notice to Artist, Withhold from the payments to Artist hereunder federal and state payroll taxes and pay said sums over to the Federal and State governments Although City shall control only the results of Artist's services under thiS Agreement, Artist agrees to perform his/her said work and functions at all times rn strict accordance With currently approved methods and practices rn his/her field, rn a competent effiCient timely, and satisfactory manner, and In accordance With the standards required by the City 82 Nothing contained In thiS Agreement shall be construed as llmltrng the right of Artist to engage rn his/her profession separate and apart from thiS Agreement so long as such activities do not Interfere With the performance by Artist of his/her obligations as set forth herein and rn Exhibit A Agreement for ArtistiC Services Page 8 of 13 February 19 2008 q l' 5.5 8 3 Except as City may specify In Writing, Artist shall have no authority, express or Implied to act on behalf of City In any capacity whatsoever as an agent Artist shall have no authority, express or Implied, pursuant to this Agreement to bmd City to any obligation whatsoever ARTICLE 9 CONFORMITY WITH LAW AND SAFETY 9 1 Artist shall observe and comply with all applicable laws ordinances, codes and regulations of governmental agencies Including all provIsions of the Occupational Safety and Health Act of 1979 and all amendments thereto, and all applicable federal, state, municipal, and local safety regulations All services performed by Artist must be In accordance With those laws ordinances codes, and regulations ArtIst shall Indemnify and save City harmless from any and allllab[hty, fines, penalties, and consequences from any noncompliance or Violations of such laws ordinances, codes and regulations 9 2 If death, serious personal inJury or substantial property damage occurs In connection WIth the performance of this Agreement, Artist shall Immediately notify the City Manager by telephone Artist shall promptly submit to City a written report In such form as may be required by City of all accidents that occur In connection With thiS Agreement The report must mclude the following mformatlon (1) name and address of the Injured or deceased person(s) (2) name and address of Artist's subcontractor, If any, (3) name and address of ArtiSt's liability Insurance carner, and (4) a detailed deSCription of the accIdent and whether any of City's eqUIpment, tools, material, or staff were Involved ARTICLE 10 CONFLICT OF INTEREST No officer, member, or employee of City and no member of Its governing bodies shall have any pecunIary Interest, direct or indirect, In thiS Agreement or the proceeds thereof Neither Artist nor any member of Artist's famIly shall serve on a City board or committee or hold any pOSition that either by rule, practice, or action, nom mates recommends, or supervises Artist's operations or authOrizes funding to Artist ARTICLE 11 ASSIGNMENT OF CONTRACT Nothing contained In thIS Agreement shall be construed to permit assignment or transfer by Art[st of any nghts under thiS Agreement and such assignment or transfer [s expressly prohibited and VOId ARTICLE 12 CONFIDENTIALITY OF INFORMATION \ Confidential Information IS defined as all Information disclosed to Artist that relates to the City's past, present, and future actiVIties, as well as actiVities under thiS contract Artist will hold all such Information In trust and confIdence except as otherwise Agreement for ArtistiC Services Page 9 of 13 February 19 2008 )O~5~ required by law Upon cancellatIon or eXpiration of this Agreement, Artist will return to City all written or descriptive matter that contains any such confidential Information ARTICLE 13 NON-DISCRI MI NATION Artist assures that he/she Will comply with the Americans with Disabilities Act and with Title VII of the CIVil Rights Act of 1964 and that no person shall, on the grounds of race, creed, color, disability, gender, sexual orientation, national Origin, age religion, Vietnam era Veteran's status, political afflllatron, or any other non-merit factors be excluded from participation In, be denied the benefits of, or be otherwise subjected to diSCrimination under thIs Agreement ARTICLE 14 USE OF CITY PROPERTY Artist shall not use City premises, property (Including eqUipment, Instruments, and supplies), or personnel for any purpose other than In the performance of his/her obligations under this Agreement ARTICLE 15 FEDERAL AND STATE AUDITS Until the expiration of five years after the furmshlng of any services pursuant to this Agreement Artist shall make available, upon written request to the Federal/State government or any of their duly authorized representatives, this Agreement and such books, documents, and records of Artist that are necessary to certify the nature and extent of the reasonable cost of servIces to CIty If Artist enters Into any Agreement with any related organization to proVide services pursuant to thIs Agreement with a value cost of $10000 or more over a twelve-month period such Agreement shall contain a clause to the effect that until the expiration of five years after the furnishing of services pursuant to such subcontract, the related organization shall make available upon written request, to the Federal/State government or any of their duly authorized representatives, the subcontract, and books, documents and records of such organization that are necessary to verify the nature and effect when and If It IS not required by law ARTICLE 16 MODIFICATION No alteration or variation of the terms of thIs Agreement shall be valid unless made In writing and signed by the parties hereto ARTICLE 17 TERMINA nON 17 1 Either party may terminate this Agreement wIth or without cause by proViding thirty (30) days notice, In writing to the other party Upon the expiration date of said notice this Agreement shall become of no further force or effect whatsoever and each of the parties shall be relieved and discharged herefrom Agreement for Artlstle Services Page 10 of 13 February 19 2008 II ~515 17 2 In the event that the Agreement IS terminated by the City without cause the City shall pay the Artist for all work performed and service rendered up to the effective date of the termrnatlon The City shall have no rights to the Art]st's creative work, designs, or unfinished artwork(s) 17 3 In the event that the Agreement IS terminated by the Artist without cause, the Artist shall promptly reimburse the City for all payments made under thiS Agreement prior to the termrnatlon by the Artist 174 In the event that the City determrnes that the Artist has substantially failed to fulfill his/her obligations as provided under thiS Agreement, the City shall provide the Artist with written notice detailing the specIfic obligations which the City claims the Artist has failed to fulfIll and notlfyrng the Artist that he/she IS deemed to be rn breach of the Agreement If the breach IS not cured or If the CIty and the Artist cannot agree on a schedule for cUring the breach, the Agreement will be deemed terminated on a date specified by the City, which will be no sooner than ten (10) days from the date of Issuance of the nohce 17 5 If, because of death, unavailability or any other occurrence Artist cannot pOSSibly render services or perform work under thiS Agreement, the Agreement shall be deemed terminated ARTICLE 18 HOLD HARMLESS/INDEMN I FICA TION 18 1 Artist shall Indemnify, defend, and hold harmless City and ItS officers and employees against liability for Injury or damage caused by a negligent act or omission of Artist In the performance of thiS Agreement and shall hold City harmless from any loss or damages directly or indirectly resultrng to the City or ItS officers and employees on account of the performance or character of the work, unforeseen difficulties, accIdents, occurrences, or other causes predicated on active or passive negligence of the Artist or I any subcontractor of Artist Artist shall rndemnlfy defend and hold harmless the City, ItS officers, offiCials, directors, employees and agents from and agarnst any or all loss, liability expense claim, costs (Includrng costs of defense), SUits and damages of every kind, nature and deSCription directly or indirectly anslng from the performance of the work ThiS paragraph shall not be construed to exempt the City, Its employees and officers from ItS own fraud willful inJury, or Violation of Jaw whether willful or negligent For purposes of Section 2782 of the CIvil Code the parties hereto recognize and agree that thIS agreement IS not a construction contract By execution of thiS Agreement, Artist acknowledges and agrees that It has read and understands the provIsions hereof and that thiS paragraph IS a matenal element of conSideration 182 The City shalllndemmfy the Artist against liability for Injury or damage caused by a neglIgent act or omission of the City, ItS officers and employees In their performance of thiS Agreement and shall hold the Artist harmless from any loss occasioned by such negligent act or omiSSion Agreement for ArtistiC Services Page 11 of 1 3 February 19 2008 /c9155 183 Upon final acceptance of the Work the City shall, to the extent permitted by law, mdemnlfy, and hold harmless the Artist against any and all claims or liabilities that arise thereafter In connection with the Work performed under this Agreement, except claIms by the CIty against Artist and claims that may occur as a result of the Artist's breach of the warranties provided elsewhere In thiS Agreement ARTICLE 19 INS U RA N C E/S E LF -I N SU RAN C E ArtIst shall at all times dUring the terms of thiS Agreement with the City mamtaln In force those msurance policies and bonds as designated In the attached Exhibit C and Will comply with all those reqUIrements as stated herem ARTICLE 20 EMPLOYMENT ELIGIBILITY Persons provldmg services under thiS contract Will be required to provIde the necessary documentation to establish Identity and employment eligibility as required by the Immlgratlon Reform and Control Act of 1986 Failure to provide the necessary documentation Will result In the termination of contract as required by the Immigration Reform and Control Act of 1986 ARTICLE 21 SEVERABILITY In the event any of the provISions or applications thereof, of thiS Agreement are held to be unenforceable or invalid by any court of competent JUrisdiction the validity and enforceability of the remaining provISions, or applications thereof, shall not be affected ARTICLE 22 TIME IS OF THE ESSENCE The parties agree that m the performance of the terms and requIrements of thiS Agreement by the Artist that time IS of the essence Artist shall devote such time to the performance of services pursuant to thiS Agreement as may be reasonably necessary for satisfactory performance of Artist's obligations pursuant to thiS Agreement ARTICLE 23 LICENSES. PERMITS. ETC Artist represents and warrants to City that he/she has all licenses permits, qualifications and approvals of whatsoever nature that are legally required for Artist to practice his/her profeSSion Artist represents and warrants to City that Artist shall at his/her sole cost and expense, keep m effect at all times dunng the term of thIS Agreement any licenses, permits, and approvals that are legally required for Artist to practice his/her profeSSion ARTICLE 24 GOVERNING LAW Agreement for ArtistiC Services Page 12 of 13 February 19 2008 13155 ThIS Agreement shall be governed by the laws of the State of California and any SUIt or achon by either party shall be brought In the County of Alameda, CalIfornIa ARTICLE 25 ATTORNEYS FEES If a party brings any achon, Including an achon for declaratory relief, to enforce or Interpret the provIsIon of this Agreement, the prevailing party IS entitled to reasonable attorneys' fees In addition to any other relief to whIch that party may be entitled Such fees may be set by the court In the same action or In a separate action brought for that purpose ARTICLE 26 NO WAIVER The waiver of any breach of a specific provIsion of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement ARTICLE 27 SURVIVAL All obligations arisIng prior to the termination of this Agreement and all provIsions of this Agreement allocating lIabllrty between City and ArtIst survive the termination of thiS Agreement ARTICLE 28 EXECUTION IN WITNESS WHEREOF, the parties hereto have executed thiS agreement as of the day and year first written above CITY OF DUBLIN Mayor ~RTIST DJ~ ~(01f Attest City Clerk Approved as to form CIty Attorney J \WPDlMnrsw\1141001\2000IAgreelartlsC 1105 doc Agreement for ArtistiC ServIces Page 13 of 13 February 19 2008 /4155 EXHIBIT A SCOPE OF SERVICES Summary of Scope of Artist's Services The Intent of this Agreement IS to define the work to be done In designing, planning, fabricating transportIng and Installing artwork for the Shannon Community Center In the City of DublIn, California Descnptlon of Artwork Tncla George has designed and will execute two murals for the Shannon Community Center Mural 1 Will be located In the Intenor preschool area and Mural 2 WIll be located In the exterior play yard Mural 1 Titled Communltv holds the simple bUilding blocks painted In a trompe loeil (to deceive the eye) for the preschool area The blocks symbolically represent the stages of development Each block bUilds on our past In order to create our future, thus creating the stability that IS found within a community The game of Jacks IS also Included In a tromoe l'oeil style In order to represent the unpredictable nature of lIfe and how all our choices affect one another Mural 2 Titled "In My World" works directly with the natural surroundmgs by palntmg a shce of the nver and depIcting It In a realistic manner Our environment IS home to so many animal species To show this I created a setting that houses many living creatures that live In and off the nver banks I have chosen to paint the animals that cohabltate with us In Dublin and paint them In a realistic style I decided to Incorporate the element of the past by depicting fossilized species that dwelled by the nver on the pillars located within the play yard Design Phase Design concepts have been currently approved by the City of Dublin A payment of $500 was paid for the creation of the maquettes Pal ntl n9 Phase/Installation Murals Will be painted on site directly onto the surfaces on both Intenor and extenor mural wall locations It IS requested that the Intenor and extenor walls be In a finished condition pnor to production The surfaces must be sound and smooth, all sheetrock must be taped, mudded and sanded smooth The walls must then be sealed With one pnmer coat and one finish coat of eggshelllntenor latex paint prior to production Scaffolding Will be provided by the City of Dublin at no cost to Tncla George, unless the artist falls to meet the deadline requirements of the CIty (tentatively July-August 2008) Agreement for ArtistiC Services - EXHIBIT A Page 1 February 19 2008 /5155 The Intenor mural location IS to be determined once the preschool structure has been completed (walls at least Installed) This tOpiC will be discussed with the Cultural Arts Supervisor and Project Manager along with the artist, to determine where the best location will be for the mural For the exterior mural mmlmlzmg any rough surfaces as best as possible outside IS recommended and surface to be sealed with one primer coat and one finish coat of exterior latex pamt All surfaces located near murals are to be protected dunng production An extenor based sand stone will be applied to the pillars and engraved to depict the fossils Both murals Will be sealed with the appropnate protective coatmg PrOject Schedule PrOject may commence once walls at Shannon Community Center are prepared as desCribed above Estimated date for Installation July-August 2008 Artist Will be notified of any major changes In the schedule within 60 days of the completion of the facIlity Agreement for Artistic Services EXHIBIT A Page 2 February 19 2008 Ib '156 EXHIBIT B CONDITION & TERMS OF PAYMENT 1 The term of this Agreement IS from February 19, 2008 to the completion of the Shannon Community Center project The foregoing notwithstanding, this Agreement may be extended by mutual agreement on a month-by-month basIs 2 The City agrees to pay Artist a fixed fee not to exceed $20,000, which shall constitute full compensation for all services to be performed and materials furnished by the Artist under this Agreement The fee shall be paid In the following Installments, each Installment to represent full, final and non-refundable payment for all services and materials provided prior to the due date thereof City will pay Artist upon submission of a written InVOice from Artist to City As early as practical, but not later than thirty (30) calendar days following receipt of said inVOiCe, City shall pay Artist the full face value of the InVOice Terms Artist will billed a total of $20,000 In 3 InVOices dUring the production of the murals $1,000 will be requested no later than 10 days from the production start date Two additional payments will be made A $10,000 Installment at the half way pOint of the Installation A $9,000 final Installment upon completion of both projects The two projects will take approximately three to four weeks to complete The total fee reflects labor and materials for both projects Agreement For ArtistiC Services - EXHIBIT B Page 1 February 19 2008 11~55 EXHIBIT C INSURANCE REQUIREMENTS [NOTE THIS IS STANDARD FOR CITY SERVICES CONTRACTS, THE TERMS CAN BE ADJUSTED TO FIT ARTISTS' NEEDS BUT SHOULD BE REVIEWED BY THE CITY ATTORNEY FOR ADEQUACY] Contractor shall procure and maIntain for the duration of the contract "occurrence coverage" Insurance against claims for InJunes to persons or damages to property which may anse from or In connection with the performance of the work hereunder by the Contractor Its agents representatives employees or subcontractors The cost of such Insurance shall be Included In the Contractor's bid a Minimum Scope of Insurance Coverage shall be at least as broad as 1 Insurance Services Office form number GL 0002 (Ed 1/73) covenng comprehensIve General Liability and Insurance Services Office form number GL 0404 covenng Broad Form Comprehensive General Liability or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001 ) 2 Irsurance Services Office form number CA 0001 (Ed 1/78) covenng Automoolle Llaolllty code 1 'any auto" and endorsement CA 0025 3 Workers' Compensation Insurance as required by the Labor Code of the State of California and Employers LIability Insurance b Minimum Limits of Insurance Artist shall maintain limIts no less than 1 General Liability $1,000,000 combined single limit per occurrence for bodily Injury personal injury and property damage If commercial General Liability Insurance or other form with a general aggregate limit IS used either the general aggregate limit shall apply separately to thiS project/location or the general aggregate limit shall be tWice the required occurrence limit 2 Automobile Liability $1 000000 combined Single limit per aCCident for bodily Injury and property damage 3 Workers' Compensation and Employers Liability Workers' Compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1 000000 per aCCident Agreement For Artistic Services EXHIBIT C Page 1 of 3 February 19 2008 /8156 c Deductlbles and Self-Insured Retentions Any deductlbles or self-Insured retentions must be declared to and approved by the City At the option of the City, either the Insurer shall reduce or eliminate such deductlbles or self-Insured retentions as respects the City Its officers officials and employees or the Artist shall procure a bond guaranteeing payment of losses and related Investigations claim administration and defense expenses d Other Insurance ProvIsions The policies are to contarn, or be endorsed to contain the following provIsions 1 General Liability and Automobile Liability Coverages A The City, ItS officers, officials, employees and volunteers are to be covered as Insureds as respects liability arising out of activities performed by or on behalf of the Artist products and completed operations of the ArtiSt, premises owned, occupied or used by the ArtiSt, or automobiles owned leased hired or borrowed by the Artist The coverage shall contain no special limitations on the scope of the protection afforded to the City ItS officers officials employees or volunteers B The Artist's Insurance coverage shall be primary Insurance as respects the city Its officers officials employees and volunteers Any Insurance or self-Insurance maintained by the City ItS officers, officials employees or volunteers snail be excess of the Artist's Insurance and shall not contribute with It C Any failure to comply with reporting provIsions of the policies shall not affect coverage provided to the City ItS officers officials employees or volunteers o The Artist's Insurance shall apply separately to each Insured against whom claim IS made or SUit IS brought except with respect to the limits of the Insurer's liability 2 Workers' Compensation and Employers Liability Coverage The Insurer shall agree to waive all rights of subrogation against the City, ItS officers officials, employees and volunteers for losses arising from work performed by the Artist for the City 3 Professional LiabIlity Artist shall carry professional liability Insurance In an amount deemed by the City to adequately protect the Artist against liability caused by negligent acts errors or omiSSions on the part of the Artist In the course of performance of the services specified In thiS Agreement Agl eement Fo, ArtistiC Services EXHIBIT C Page 2 of 3 February 19 2008 ;q ~ 5{, 4 All Coverages Each Insurance policy required by thIs clause shall be endorsed to state that coverage shall not be suspended vOided canceled by either party reduced In coverage or In limits except after thirty (30) days' prror wrrtten notice by certified mall return receipt requested has been given to the City e Acceptabllltv of Insurers Insurance IS to be placed with Insurers with a Bests' rating of no less than A VII f Verrflcatlon of Coveraqe Artist shall furnish City with certificates of Insurance and with orrglnal endorsements effecting coverage required by this clause The certificates and endorsements for each Insurance policy are to be signed by a person authorrzed by that Insurer to bind coverage on ItS behalf The certificates and endorsements are to be received and approved by the City before work commences The City reserves the rrght to require complete certified copies of all required Insurance policies at any time g Subcontractors Artist shall Include all subcontractors as Insureds under ItS policies or shall furnish separate certificates and endorsements for each subcontractor All coverages for subcontractors shall be subject to all of the requirements stated herein h V'valvel The eny may approve a vanatlon In those Insurance requirements upon a determination that the coverages scope limits and Torms or such Insurance are either not commercially available or that the City's Interests are otnerwlse fully protected Agreement Fa. ArtistiC Services EXHIBIT C Page 3 of 3 February 19 2008 " cRo ~5-S- AGREEMENT BETWEEN THE CITY OF DUBLIN AND MARGARITA SOYFERTIS RELATING TO THE PROVISION OF ARTISTIC SERVICES FOR A PUBLIC ART PROJECT This Agreement IS made by and between the City of Dublin a political subdivIsion of the State of California (hereafter "City"), and Marganta Soyfertls (hereafter "Artist") this 19th day of February 2008 RECIT ALS WHEREAS the City requires the services of Artist to perform artistiC services descnbed In the Agreement for a public art project and WHEREAS, the City IS authonzed by Section 2 36 050 of the Dublin MUnicipal Code to contract for the specialized services of the advisor contemplated by this Agreement, and WHEREAS, Artist IS qualified and desires to perform the artistic services required by the City as set forth In this Agreement and WHEREAS the City Council on December 18 2007 authonzed an agreement between City and Artist for the preparation of a final deSign and fabncatlon for the work that Artist Will prepare for the Shannon Community Center public art project (hereafter 'Work") NOW THEREFORE, In conSideration of the mutual promises contained herein the parties hereto agree as follows AGREEMENT ARTICLE 1 SCOPE OF WORK 1 1 For services rendered herein City shall pay Artist a sum not to exceed FORTY THOUSAND DOLLARS ($4000000) for work performed dunng the period beginning February 20th through completion of the Shannon Community Center Artist shall furnish services as deSCribed In Exhibit A of thiS Agreement Terms and conditions for payment are attached In Exhibit B of thiS Agreement 1 2 The City shall be responsible for proViding the Artist without cost copies of deSigns draWings reports and other relevant data needed by the Artist to deSign and execute the Project 1 3 Marganta Soyfertls Will create mosaics for the fountain and bndge leading Into the Shannon Community Center entrance The mosaic Will be located along the Sides of the bndge and the floor area inside of the fountain Agreement for ArtistiC Services ATTACHMENT 2 02{ i 55" 1 4 The Artist shall begin work after the execution of this Agreement ARTICLE 2 CHANGES IN SCOPE AND ADDITIONAL WORK 2 1 The Artist shall, whenever required dunng the term of this Agreement, present to the City In wntlng drawing or other appropnate media for further review and approval any significant changes In the scope, design, color size matenal utility and support requirements, texture or location of the site or the Work A significant change IS any change which affects the Installation, scheduling site preparation or maintenance of the Work or the concept of the Work as represented In the onglnal approved design 2 2 The Artist shall be obligated to perform the services called for In Exhibit A The Artist and the City agree that the Artist shall retain artistic control of his/her services In the performance of the services under this Agreement subject only to the limitations Imposed In Exhibit A 2 3 Notwithstanding the provIsions of Section 2 2 above the City may at any time request the Artist In wntlng to revise portions of the services that he/she has previously completed In a satisfactory manner delete portions of the Scope of the Work that the Artist has not yet oerformed perform additional work beyond the Scope of Work to be provided In Exhibit A or make other changes within the General Scope of the Work to be performed under this Agreement In the event of such a wntten request the Artist may but shall not be obligated to agree to any such request 2 4 In the event the request for change IS agreed to by the Artist this Agreement shall be amended In wntlng specifYing the agreed changes, including but not limited to, a descnptlon of services additional budget payment schedule and timetable 2 5 In the event that the Artist does not agree to the request the City shall be entitled to terminate the Agreement for cause pursuant to Article 17 herein 2 6 No services for which additional compensation will be charged shall be provided by the Artist without the pnor wntten authonzatlon by the City ARTICLE 3 RESPONSIBILITY OF THE ARTIST 3 1 The Artist agrees that an essential element of this Agreement IS the skill and creativity of the Artist The Artist shall not assign the creative or artistic portions of the Work to another party for the production of the Work without the wntten consent of the City Failure to conform to this provIsion may be cause for termination of this Agreement at the sole option of the City Agreement for Artistic Services Page 2 of 13 February 19 2008 02 e>2 ~ 51f 3 2 The Artist shall be responsible for providing services descnbed In Exhibit A, Including but not limited to the quality and timely completion of the services The Artist shall be responsible for deslgnrng the Work so that It can be constructed without exceeding the approved overall budget for the project The Artist shall without additional compensation correct or revise any errors, omiSSions, or other deficiencies In his/her Work 3 3 In the event the services of the Artist are Integrated Into, combined or otherwise coordinated with services by third parties not within the control of the ArtiSt, the Artist shall not be responsible for such third party services If any part of the Artist's Work depends for proper execution or results upon the work of the City or a third party responsible to the City, the Artist shall pnor to proceeding with his or her Work promptly report to the City any apparent discrepancies or other defects In such other work which renders It unsuitable for proper execution and results by the Artist The Artist shall not be responsible for any liability or failure to fulfill his/her obligations because of such discrepancies or defects Failure of the Artist to report a discrepancy or defect shall constitute an acceptance of the City's or third party's work as fit and proper to receive ArtiSt's Work Any costs caused by defective or III-timed work shall be borne by the party responsible therefore Nothing In thiS section shall limit the responsibility of the Artist to take all reasonable steps to coordinate his/her Work With the work of the City or of a third party on the project 3 4 If the ArtIst IS Involved In the execution fabrication transportation Inspection and/or Installation of the Work the following proVIsions shall apply a The Artist shall If and when working on City property, supervise such clean-up as may be reasonably requested by the City At the close out of the ArtiSt's Work, the Artist shall remove his/her equipment, excess materials etc promptly and as requested by City b The City and any third party contractor on the project shall notify the Artist of their operation construction, and maintenance schedules In and around the area where the Artist's Work IS to be performed The Artist shall perform his/her services In a manner and time so as not to cause Interference With any of the operations construction or maintenance of the City or third party contractor In the event of a conflict between the schedules of the contractor and/or the City and the Artist the conflict Will be resolved by the City If the resolution of the conflict results In a delay of the performance of the Artist the Artist shall have the right to renegotiate thiS Agreement to compensate him or her for any additional costs or expenses caused by the delay If such delay prevents Artist from complYing With the schedule In Exhibit A Artist shall not be considered to have breached thiS Agreement and Artist and City shall agree to amend the schedule In writing Agreement for Artistic Services Page 3 of 13 February 19 2008 ~31.56 c The Artist shall complete the fabncatlon and installation of the Work In substantial conformity with the attached Exhibit A Scope of Work 3 5 The nsk of loss or damage to the Work shall be borne by the Artist until final acceptance by City and the Artist shall take such measures as are necessary to protect the Work from loss or damage until final acceptance by City except that the nsk of loss or damage shall be borne by the City pnor to final acceptance dunng such penod of time as the partially or wholly completed Work IS In the custody, control, or supervision of the City or ItS agents for the purposes of transporting stonng Installing or performing any other anCillary services to the Work ARTICLE 4 WARRANTIES/STANDARDS 4 1 The Artist warrants that (a) the deSign of Work being commissioned IS the onglnal product of his/her own creative efforts (b) unless otherwise stipulated, the work IS onglnal that It IS an edition of one (1), and that the Artist shall not sell or reproduce the Work or allow others to do so, Without the pnor wntten consent of the City 4 2 The Artist shall guarantee his/her Work to be free from faults of matenal and workmanship for a penod of one (1) year after Installation and final acceptance by the City The Artist shall deliver the Work to the City free and clear of any liens from any source whatever The foregOing guarantees shall apply only to the Work that IS entirely that of the Artist or persons responSible to the Artist, as Installed and shall not apply to matenals or workmanship of projects In which the Work of the Artist IS Integrated or combined or to matenals purchased acquired or Installed by a person or entity not responSible to the Artist 4 3 The Artist shall faithfully perform the work required under thiS Agreement In accordance With standards of care, skill training diligence, and Judgment proVided by highly competent profeSSionals who perform work of a Similar nature to the Work descnbed In thiS Agreement Artist shall assign only competent personnel to perform services pursuant to thiS Agreement In the event that City In ItS sole discretion at any time dunng the term of thiS Agreement deSires the removal of any such persons Artist shall Immediately upon receiving notice from City of such deSire of City cause the removal of such person or persons unless In the Artist s sole opinion the skill or creativity of such person or persons IS essential to the creation of the Work ARTICLE 5 COMPENSATION 5 1 The Artist shall be paid for services satlsfactonly rendered pursuant to thiS Agreement In accordance With the terms herein Exhibits A and B and subsequent adjustments changes, or additions as speCifically proVided for In thiS Agreement Such payment shall be full compensation for work performed and services rendered for all supervision labor supplies, matenals, equipment or use thereof for taxes and for all other necessary InCidentals Including transportation and storage of Work Agreement for ArtistiC Services Page 4 of 13 February 19 2008 ;;(1.{ ~ 55" 52 The amount and schedule of payments to the Artist are contained In the attached Exhibit B Conditions & Terms of Payment Payments under thiS Agreement shall not exceed a maximum amount of $40 000, subject only to adjustments changes, or additions as specifically provided for In thiS Agreement (hereafter "Total Pnce") 5 3 In the event the Artist Incurs costs In excess of the Total Pnce the Artist shall pay such excess from his/her own funds the City shall not be required to pay any part of such excess, and the Artist shall not have claim against the City on account thereof 54 The ArtIst shall submit InVOices to the City according to the schedule provided for In Exhibit B Such inVOices shall be In the form requested by the City 5 5 In the event that the City determines that Work for which It has been inVOiced does not meet the contract specifications and that It Intends to withhold payment the City shall provide detailed wntten notice to the Artist within fifteen (15) days of receipt of inVOice specifYing the failure of performance for which the City Intends to withhold payment The Artist shall thereafter meet contract standards to the satisfaction of the City or adVise the City that he/she disputes the City's determination that the specifications have not been met 56 The City shall pay all Invoices that meet contract specifications within thirty (30) days of receipt of Invoice 5 7 No payment to the Artist for any work performed or services rendered shall constitute a waiver or release by the City of any claims, nghts or remedies It may have against the Artist under thiS Agreement or by law nor shall such payment constitute a waiver, remiSSion or discharge by the City of any failure or fault of the Artist to satlsfactonly perform the work as reqUired under thiS Agreement 58 The services to be reqUired of the Artist under thiS Agreement shall be completed In accordance with the schedule for completion of the Work as proVided for In Exhibit A proVided that such time limits may be extended or otherwise modified by wntten agreement between the Artist and the City 5 9 If, when the Artist completes fabncatlon or procurement of the Work In accordance with the approved schedule and notifies the City that the Work IS ready for installation the Artist IS delayed from Installing the Work within the time specified In Exhibit A as a result of the construction of the site for the Work not being suffiCiently complete reasonably to permit installation of the Work therein or If the City otherwise does not make the site available to the Artist In accordance with the approved schedule the City shall promptly reimburse the Artist for reasonable transportation and storage costs Incurred for the penod between the time proVided In Exhibit A for commencement of Installation and the date upon which the site IS made available to the Artist for Installation of the Work Agreement for Artistic Services Page 5 of 13 February 19 2008 o<'5";f56" 5 10 The Artist shall bear any transportation and storage costs resulting from the completion of the Work pnor to the time provided In the schedule for Installation of the Work 5 11 The City shall always grant a reasonable extension of trme to the Artist In the event that there IS a delay on the part of the City In performing ItS obligations under thiS Agreement or In completing the underlYing capital project or If conditions beyond the ArtiSt's control render timely performance of the ArtiSt's service Impossible or unexpectedly burdensome Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control will not be considered a breach of thiS Agreement as long as such obligations shall be suspended only for the duration of the conditions causing the delay 5 12 For delays In the Installatron of the Work beyond the schedule proVided for under thiS Agreement caused by factors reasonably under the ArtiSt's control the City agrees to accept fifty dollars ($5000) per day as liqUidated damages for such delay ARTICLE 6 ARTIST'S RIGHTS 6 1 The City shall at ItS expense prepare and Install at appropnate locations after consultation with the Artist a plaque or sign IdentifYing the Artist the title of the Work and the year of completion The City shall also reasonably maintain such notice In good repair against damages due to normal wear and tear over time vandalism and the elements 6 2 The City recognizes that maintenance of the Work on a regular baSIS IS essential to the Integnty of the Work The City shall reasonably assure that the Work IS properly maintained and protected taking Into account the recommendations of the Artist as stated In the maintenance program proVided by the Artist 6 3 The City agrees that It shall not Intentionally damage alter modify change or substantially relocate the Work of the Artist without first conferring with the Artist and obtaining the pnor wntten approval of the Artist to the proposed modlflcatron change or substantial relocation 64 NotWithstanding the Artist's refusal to proVide (or the City's failure for any reason otherwise to obtain) the ArtiSt's wntten approval proVided for In Section 6 3 above the City In ItS sole discretion shall have the nght to remove any work of art proViding the following terms and conditions are met a The removal proposal shall first be submitted to and conSidered by the City CounCil Agreement for ArtistiC Services Page 6 of 13 February 19 2008 020155 b The City Council shall have the non-delegable duty to decide that a work of art shall be removed The decIsion to remove shall not be made by the City Council until It has reviewed the removal proposal c In the event that the City Council decides to remove the Work the Artist shall have the first right of refusal to purchase his/her Work, If It stands alone and IS not Integrated mto a larger artwork bUilding, or structure and can be removed without expense to the City The Artist shall also have the right to have his/her name removed from the Work as well as from the plaque Installed pursuant to Section 6 1 6 5 The City shall have the right to determine after consultatron with a professional conservator when and If repairs and restorations to the Work will be made DUring the Artist's lifetime the Artist shall have the right to approve all major repairs and restorations, which approval the Artist shall not unreasonably withhold If the Artist unreasonably falls to approve any repair or restoration the City shall have the right to make or supervise slgnrflcant repairs and restorations In the event that the City makes repairs or restorations not approved by the ArtiSt, the Artist shall have the right at his/her sole option to have his/her name and association with the Work severed To the extent practical the Artist dUring his/her lifetime shall be given the opportunity to make or supervise significant repairs and restorations and shall be paid a reasonable fee for any such service If the City and the Artist shall agree In wrltmg prior to the commencement of any slgnrflcant repairs or restorations upon the Artist s fee for such services 6 6 All repairs and restoratrons whether performed by the Artist the City or third parties responsible to the Artist or the City shall be made In accordance with professionally recognized principles of conservatron of artworks ARTICLE 7 COPYRIGHTS 7 1 The Artist shall retain all cOPYright and other rights In and to the Work created under this Agreement other than ownership of the Work Itself Artist shall grant to the City an Irrevocable license to graphically depict the artwork In any non- commercial manner whatsoever For the purpose of this limitation, the graphic depiction of the artwork(s) on materials designed to promote the City shall be deemed to be a non-commercial use 7 2 If for any reason the proposed design IS not Implemented all rights to the proposed artwork shall be retained by the Artist 7 3 The Artist agrees that all work performed under this Agreement shall comply with all applicable patent trademark and cOPYright laws, rules regulations and codes of the Unrted States The Artist further agrees that the Work will not utilize any protected patent, trademark or cOPYright In performance of work under this Agreement unless the Artist has obtained proper permission and all releases and other necessary Agreement for Artistic Services Page 7 of 13 February 19 2008 c:27 ~5S documents and provided copies of such releases and documents to City If the Artist specifies any matenal equipment, process or procedure that IS protected the Artist shall disclose such patents trademarks and copynghts In the construction drawings and technical specifications 74 The Artist agrees to release, Indemnify and hold harmless the City ItS officers and employees from any and all claims damages SUitS costs expenses liabilities actions or proceeding of any kind resulting from the performance of work under thiS Agreement that Infnnges upon any patent, trademark or copynght protected by law 7 5 All reproductions by the City shall contain a credit to the ARTIST and a copynght notice substantially In the following form @ Marqanta Soyfertls 2008 The Artist shall use his/her best efforts to Include a credit reading substantially "An onglnal work commissioned by the City of Dublin California" In any public shOWing under the Artist's control of reproductions of the Work ARTICLE 8 NO EMPLOYER/EMPLOYEE OR AGENCY RELATIONSHIP 8 1 No relationship of employer and employee IS created by thiS Agreement It being understood that Artist shall act hereunder as an Independent contractor and not as an employee of City City shall have the nght to control ArtiSt's work only Insofar as the results of ArtiSt's services rendered pursuant to thiS Agreement Artist shall not have any claim under thiS Agreement or otherwise against City for senronty vacation time vacation pay sick leave personal time off overtime health Insurance medical care hospital care, retirement benefits SOCial Secunty disability Worker's Compensation or unemployment Insurance benefits CIVil service protection or employee benefits of any kind Artist shall be solely liable for and obligated to pay directly all applicable taxes including but not limited to Federal and State Income taxes Artist shall Indemnify and hold City harmless from any and all liability that City may Incur because of Artist's failure to pay such taxes Notwithstanding the foregOing If the City determines that pursuant to state and federal law Artist IS an employee for purposes of Federal and State tax withholding City shall upon two weeks notice to Artist withhold from the payments to Artist hereunder federal and state payroll taxes and pay said sums over to the Federal and State governments Although City shall control only the results of Artist s services under thiS Agreement Artist agrees to perform his/her said work and functions at all times In stnct accordance with currently approved methods and practices In his/her field In a competent efficient timely and satisfactory manner, and In accordance with the standards required by the City 8 2 Nothing contained In thiS Agreement shall be construed as limiting the nght of Artist to engage In his/her profession separate and apart from thiS Agreement so long as such activIties do not Interfere with the performance by Artist of his/her obligations as set forth herein and In Exhibit A Agreement for Artistic Services Page 8 of 13 February 19 2008 ';?8155"" 8 3 Except as City may specify In writing Artist shall have no authority, express or Implied to act on behalf of City In any capacity whatsoever as an agent Artist shall have no authority express or Implied pursuant to this Agreement to bind City to any obligation whatsoever ARTICLE 9 CONFORMITY WITH LAW AND SAFETY 9 1 Artist shall observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies Including all provIsions of the Occupational Safety and Health Act of 1979 and all amendments thereto, and all applicable federal, state municipal and local safety regulations All services performed by Artist must be In accordance with those laws ordinances codes and regulations Artist shall Indemnify and save City harmless from any and all liability fines penalties and consequences from any noncompliance or violations of such laws, ordinances, codes and regulations 9 2 If death serious personal inJury or substantial property damage occurs In connection with the performance of thiS Agreement Artist shall Immediately notify the City Manager by telephone Artist shall promptly submit to City a written report, In such form as may be required by City of all accidents that occur In connection with thiS Agreement The report must Include the following Information (1) name and address of the Injured or deceased person(s) (2) name and address of Artist's subcontractor If any, (3) name and address of Artist's liability Insurance carner and (4) a detailed deSCription of the aCCident and whether any of City's equipment tools material, or staff were Involved ARTICLE 10 CONFLICT OF INTEREST No officer member or employee of City and no member of ItS governing bodies shall have any pecuniary Interest direct or Indirect, In thiS Agreement or the proceeds thereof Neither Artist nor any member of ArtiSt's family shall serve on a City board or committee or hold any position that either by rule practice, or action nominates recommends or supervises Artist's operations or authorizes funding to Artist ARTICLE 11 ASSIGNMENT OF CONTRACT Nothing contained In thiS Agreement shall be construed to permit assignment or transfer by Artist of any rights under thiS Agreement and such assignment or transfer IS expressly prohibited and vOid ARTICLE 12 CONFIDENTIALITY OF INFORMATION Confidential Information IS defined as all Information disclosed to Artist that relates to the City's past present, and future activities as well as activities under thiS contract Artist will hold all such Information In trust and confidence except as otherwise Agreement for Artlsllc Services Page 9 of 13 February 19 2008 09q ~ 6:5 required by law Upon cancellation or eXpiration of this Agreement Artist will return to City all written or descriptive matter that contains any such confidential Information ARTICLE 13 NON-DISCRIMINATION Artist assures that he/she will comply with the Americans with Disabilities Act and with Title VII of the CIvil Rights Act of 1964 and that no person shall on the grounds of race, creed color disability gender sexual Orientation national origin age religion, Vietnam era Veteran's status political affiliation or any other non-merit factors be excluded from participation In be denred the benefits of or be otherwise subjected to discrimination under this Agreement ARTICLE 14 USE OF CITY PROPERTY Artist shall not use City premises property (including equipment Instruments, and supplies) or personnel for any purpose other than In the performance of his/her obligations under this Agreement ARTICLE 15 FEDERAL AND STATE AUDITS Until the expiration of five years after the furnishing of any services pursuant to this Agreement, Artist shall make available, upon written request to the Federal/State government or any of their duly authorized representatives this Agreement and such books documents and records of Artist that are necessary to certify the nature and extent of the reasonable cost of services to City If Artist enters Into any Agreement with any related organization to provide services pursuant to this Agreement with a value cost of $10 000 or more over a twelve-month period such Agreement shall contain a clause to the effect that until the expiration of five years after the furnishing of services pursuant to such subcontract, the related organrzatlon shall make available upon written request, to the Federal/State government or any of their duly authorized representatives the subcontract, and books documents and records of such organrzation that are necessary to verify the nature and effect when and If It IS not required by law ARTICLE 16 MODIFICATION No alteration or variation of the terms of this Agreement shall be valid unless made In writing and signed by the parties hereto ARTICLE 17 TERMINATION 17 1 Either party may terminate this Agreement with or without cause by providing thirty (30) days notice, In writing to the other party Upon the expiration date of said notice this Agreement shall become of no further force or effect whatsoever and each of the parties shall be relieved and discharged herefrom Agreement for ArtistiC Services Page 10 of 13 February 19 2008 ,30 155 17 2 In the event that the Agreement IS terminated by the City without cause the City shall pay the Artist for all work performed and service rendered up to the effective date of the termination The City shall have no nghts to the Artist's creative work, designs or unfinished artwork(s) 17 3 In the event that the Agreement IS terminated by the Artist without cause the Artist shall promptly reimburse the City for all payments made under this Agreement pnor to the termination by the Artist 17 4 In the event that the City determines that the Artist has substantially failed to fulfill his/her obligations as proVided under this Agreement the City shall proVide the Artist with wntten notice detailing the specific obligations which the City claims the Artist has failed to fulfill and notifYing the Artist that he/she IS deemed to be In breach of the Agreement If the breach IS not cured or If the City and the Artist cannot agree on a schedule for cunng the breach, the Agreement will be deemed terminated on a date specified by the City which will be no sooner than ten (10) days from the date of Issuance of the notice 17 5 If because of death, unavailability or any other occurrence, Artist cannot possibly render services or perform work under this Agreement the Agreement shall be deemed terminated ARTICLE 18 HOLD HARMLESSIINDEMNIFICATION 18 1 Artist shall indemnify defend and hold harmless City and ItS officers and employees against liability for Injury or damage caused by a negligent act or omiSSion of Artist In the performance of this Agreement and shall hold City harmless from any loss or damages directly or Indirectly resulting to the City or ItS officers and employees on account of the performance or character of the work unforeseen difficulties aCCidents, occurrences or other causes predicated on active or passive negligence of the Artist or any subcontractor of Artist Artist shall Indemnify defend, and hold harmless the City ItS officers, officials directors employees and agents from and against any or all loss liability expense claim costs (including costs of defense) SUitS and damages of every kind nature and descnptlon directly or indirectly anslng from the performance of the work ThiS paragraph shall not be construed to exempt the City ItS employees and officers from ItS own fraud willful InJury or violation of law whether willful or negligent For purposes of Section 2782 of the CIVil Code the parties hereto recognize and agree that thiS agreement IS not a construction contract By execution of thiS Agreement Artist acknowledges and agrees that It has read and understands the provISions hereof and that thiS paragraph IS a matenal element of conSideration 18 2 The City shall Indemnify the Artist against liability for Injury or damage caused by a negligent act or omission of the City ItS officers and employees In their performance of thiS Agreement and shall hold the Artist harmless from any loss occasioned by such negligent act or omiSSion Agreement for Artistic Services Page 11 of 13 February 19 2008 c3/9;f 55 183 Upon final acceptance of the Work the City shall to the extent permitted by law Indemnify, and hold harmless the Artist against any and all claims or liabilities that arise thereafter In connection with the Work performed under this Agreement, except claims by the City against Artist and claims that may occur as a result of the Artist's breach of the warranties provided elsewhere In this Agreement ARTICLE 19 INSU RANCE/SELF -INSU RANCE Artist shall at all times dUring the terms of this Agreement with the City maintain In force those Insurance policies and bonds as designated In the attached Exhibit C and will comply with all those requirements as stated herein ARTICLE 20 EMPLOYMENT ELIGIBILITY Persons providing services under this contract will be required to provide the necessary documentation to establish Identity and employment eligibility as required by the Immigration Reform and Control Act of 1986 Failure to provide the necessary documentation will result In the termination of contract as required by the Immigration Reform and Control Act of 1986 ARTICLE 21 SEVERABILITY In the event any of the provIsions or applications thereof, of this Agreement are held to be unenforceable or Invalid by any court of competent JUrisdiction the validity and enforceability of the remaining provIsions or applications thereof shall not be affected ARTICLE 22 TIME IS OF THE ESSENCE The parties agree that In the performance of the terms and requirements of this Agreement by the Artist that time IS of the essence Artist shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary for satisfactory performance of Artist's obligations pursuant to this Agreement ARTICLE 23 LICENSES, PERMITS, ETC Artist represents and warrants to City that he/she has all licenses permits qualifications and approvals of whatsoever nature that are legally reqUired for Artist to practice his/her profession Artist represents and warrants to City that Artist shall at his/her sole cost and expense keep In effect at all times dUring the term of this Agreement any licenses permits and approvals that are legally reqUired for Artist to practice his/her profession ARTICLE 24 GOVERNING LAW Agreement for ArtistiC Services Page 12 of 13 February 19 2008 30< '1?S- This Agreement shall be governed by the laws of the State of California and any SUIt or action by either party shall be brought In the County of Alameda California ARTICLE 25 ATTORNEYS FEES If a party bnngs any action, including an action for declaratory relief to enforce or Interpret the provIsion of this Agreement the prevailing party IS entitled to reasonable attorneys fees In addition to any other relief to which that party may be entitled Such fees may be set by the court In the same action or In a separate action brought for that pu rpose ARTICLE 26 NO WAIVER The waiver of any breach of a specific provIsion of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement ARTICLE 27 SURVIVAL All obligations anslng pnor to the termination of this Agreement and all provIsions of this Agreement allocating liability between City and Artist survive the termination of this Agreement ARTICLE 28 EXECUTION IN WITNESS WHEREOF the parties hereto have executed thIs agreement as of the day and year first wntten above CITY OF DUBLIN ARTI ST Mayor Attest City Clerk Approved as to form City Attorney J \WPD\Mnrsw\114\001\2000\Agree\artlsl_1105 doc Agreement for Artistic Services Page13of13 February 19 2008 33155 EXHIBIT A SCOPE OF SERVICES Summary of Scope of Artist's Services The Intent of this Agreement IS to define the work to be done In designing planning fabncatlng, transporting and Installing artwork for the Shannon Community Center In the City of Dublin California Description of Artwork Marganta Soyfertls will provide mosaics for the fountain and bndge leading from the entrance of the parking lot Into the Shannon Community Center entrance The mosaic will be located along the sides of the bndge and at the Intenor surface Inside of the fountain The mosaics will be executed delivered and Installed In the areas as determined and approved With the design concept The design for the fountain and bndge forms a spiral line to represent the connection between nature and community The design along the edge of the bndge IS styled With animal and floral shapes and geometnc figures connected With-in the spiral line The fountain design will extend thiS line Into a sWirl representing creative force Phases The project will be divided Into the four phases 1 Concept Concept design approved as part of the selection process (a payment of $500 00 has been received by Marganta Soyfertls for the design concept portion of the project) 2 Mosaic Design (2 months) Marganta Soyfertls will provide a copy of the preliminary working design to the City for review and coordination The preliminary working design will Incorporate the correct dimenSions and Installation procedures necessary to complete the approved artwork Once the City has reViewed the preliminary working design and agrees that the design has been properly coordinated the artist will then move forward With the execution of the art pieces 3 Execution (5 - 6 months) The actual mosaic of the artwork IS executed from the approved preliminary working design The execution phase IS estimated to take five to SIX months from the time that the agreement IS Signed Upon review and approval by the City s Cultural Arts Supervisor and Project Manager of a representative mosaic panel for the bndge and a Agreement for ArtistiC Services EXHIBIT A Page 1 of 2 February 19 2008 c3L{ ~ 155 mock up of a portion of the fountain floor surface Margarita Soyfertls Will bill a total of $32 725 In two Installments the first at the beginning of execution, and the second upon completion of all pieces to be Installed 4 Installation (on site) Margarita Soyfertls Will deliver mosaics ready to be Installed on site The fountain floor must have a clean, smooth surface for installation of the mosaic tiles In addition, temporary fenCing Will be made available by the City dUring Installation (approximately 3-5 days) All work to be Installed by the artist Will comply With bUilding codes and ADA requirements The fee for the Installation portion of the project IS $7,275 Schedule The mosaics to be ready for Installation by August 2008 Artist Will be notified of any major changes In the schedule Within 60 days of the completion of the facIlity Agreement for ArtistiC Services EXHIBIT A Page 2 of 2 February 19 2008 c36~56" EXHIBIT B CONDITION & TERMS OF PAYMENT 1 The term of this Agreement IS from February 19, 2008 to the completion of the Shannon Community Center project The foregoing notwithstanding, this Agreement may be extended by mutual agreement on a month-by-month basIs 2 The City agrees to pay Artist a fixed fee not to exceed $40 000 which shall constitute full compensation for all services to be performed and matenals furnished by the Artist under thiS Agreement The fee shall be paid In the follOWing Installments each Installment to represent full final and non-refundable payment for all services and matenals provided pnor to the due date thereof City Will pay Artist upon submiSSion of a wntten inVOice from Artist to City As early as practical, but not later than thirty (30) calendar days follOWing receipt of said Invoice City shall pay Artist the full face value of the mvolce Terms 1 Total Budget IS $40,000 2 The budget Includes labor matenals and installation costs for the project Execution of artwork Two payments totaling $32 725 Installation one payment of $7,275 As outlined In section 2 2 - 24 an additional fee may be assessed for further deSign changes requested by the City If the final deSign Significantly vanes from the approved concept the artist Will mform the client regarding additional funds required to complete re-deslgn Agreement For ArtistiC Services - EXHIBIT B Page 1 of 1 February 19 2008 36~55 EXHIBIT C INSURANCE REQUIREMENTS [NOTE THIS IS STANDARD FOR CITY SERVICES CONTRACTS, THE TERMS CAN BE ADJUSTED TO FIT ARTISTS' NEEDS BUT SHOULD BE REVIEWED BY THE CITY ATTORNEY FOR ADEQUACY] Contractor shall procure and maintain for the duration of the contract "occurrence coverage" Insurance against claims for injUries to persons or damages to property which may arise from or In connection with the performance of the work hereunder by the Contractor Its agents, representatives, employees or subcontractors The cost of such Insurance shall be Included In the Contractor's bid a Minimum Scope of Insurance Coverage shall be at least as broad as 1 Insurance Services Office form number GL 0002 (Ed 1/73) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability, or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001 ) 2 Irsurance Services On-Ice form number CA 0001 (Ed 1/78) covenng Automobile Liability code 1 "any auto and endorsement CA 0025 3 Workers' Compensation Insurance as required oy the Labor Code of the State of California and Employers Liability Insurance b MInimum Limits of Insurance Artist shall maintain limits no less than 1 General Liability $1,000000 combined single limit per occurrence for bodily Injury, personal InJury and property damage If commercial General Liability Insurance or other form With a general aggregate limit IS used either the general aggregate limit shall apply separately to thiS proJecUlocatlon or the general aggregate limit shall be tWice the required occurrence limit 2 Automobile Liability $1 000000 combined Single limit per aCCident for bodily injury and property damage 3 Workers' Compensation and Employers Liability Workers' Compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000 000 per aCCident Agreement FOI A, tlstlC Se, vices EXHIBIT C Page 1 of 3 February 19 2008 311 &g c Deductlbles and Self-Insured Retentions Any deductlbles or self-Insured retentions must be declared to and approved by the City At the option of the City either the Insurer shall reduce or eliminate such deductlbles or self-Insured retentions as respects the City Its officers, officials and employees or the Artist shall procure a bond guaranteeing payment of losses and related Investigations, claim administration and defense expenses d Other Insurance ProvIsions The policies are to contain or be endorsed to contain the following provIsions 1 General Liability and Automobile Liability Coverages A The City ItS officers, offiCials, employees and volunteers are to be covered as Insureds as respects liability arising out of activities performed by or on behalf of the Artist products and completed operations of the Artist premises owned, occupied or used by the Artist, or automobiles owned, leased hired or borrowed by the Artist The coverage shall contain no special limitations on the scope of the protection afforded to the City ItS officers offiCials employees or volunteers B The Artist's Insurance coverage shall be primary Insurance as respects the cIty Its officers offiCials employees and volunteers Any Insurance or self-Insurance maintained by the City ItS officers ofrlclals employees or volunteers snail De excess of tne Arnst's Insurance and shall not contribute With It C Any failure to comply With reporting proVIsions of the poliCies shall not affect coverage provided to the City ItS officers offiCials employees or volunteers o The ArtiSt's Insurance shall apply separately to each Insured against whom claim IS made or SUit IS brought except With respect to the limits of the Insurer's liability 2 Workers' Compensation and Employers Liability Coverage The Insurer shall agree to waive all rights of subrogation against the City ItS officers offiCials employees and volunteers for losses arising from work performed by the Artist for the City 3 Professional Liability Artist shall carry profeSSional liability Insurance In an amount deemed by the City to adequately protect the Artist against liability caused by negligent acts, errors or omiSSions on the part of the Artist In the course of performance of the services specified In thiS Agreement Agreement For ArtistiC Services EXHIBIT C Page 2 of 3 February 19 2008 68~55 4 All Coverages Each Insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended vOided, canceled by either party reduced In coverage or In limits except after thirty (30) days' pnor wntten notice by certified mall return receipt requested has been given to the City e Acceptability of Insurers Insurance IS to be placed with Insurers with a Bests' rating of no less than A VII f Venflcatlon of Coveraqe Artist shall furnish City with certificates of Insurance and with onglnal endorsements effecting coverage required by thiS clause The certificates and endorsements for each Insurance policy are to be signed by a person authonzed by that Insurer to bind coverage on ItS behalf The certificates and endorsements are to be received and approved by the City before work commences The City reserves the nght to require complete certified copies of all required Insurance poliCies at any time g Subcontractors Artist shall Include all subcontractors as Insureds under ItS polIcies or shall furnish separate certificates and endorsements for each subcontractor All coverages for subcontractors shall be subject to all of the requirements stated herein h Waiver The City may approve a variation In those Insurance requiremenTs upon a determination tnat the coverages scope limits and forms of such Insurance are either not commercIally available or that the City's Interests are otherwise fully protected Agreement ~or A tlstlC Services EXHIBIT C Page 3 of 3 February 19 2008 C/1 c~r55" AGREEMENT BETWEEN THE CITY OF DUBLIN AND COLIN LAMBERT & PETER ADAMS RELATING TO THE PROVISION OF ARTISTIC SERVICES FOR A PUBLIC ART PROJECT This Agreement IS made by and between the City of Dublin, a political subdivIsion of the State of California (hereafter "City"), and Colrn Lambert & Peter Adams (hereafter "Artist") this 19th day of February, 2008 RECITALS WHEREAS the City requires the services of Artist to perform artistic services described In the Agreement for a public art project, and WHEREAS, the City IS authorized by Section 2 36 050 of the Dublin Municipal Code to contract for the specialized services of the adVisor contemplated by thiS Agreement, and WHEREAS, Artist IS qualified and desires to perform the artistic services reqUired by the City as set forth In thiS Agreement, and WHEREAS, the City Council, on December 18,2007 authorized an agreement between City and Artist for the preparation of a final design and fabrication for the work that Arnst Will prepare for the Shannon Community Center public art project (hereafter "Work") NOW, THEREFORE, In consideration of the mutual promises contained herein, the parties hereto agree as follows AGREEMENT ARTICLE 1 SCOPE OF WORK 1 1 For services rendered herein City shall pay Artist a sum not to exceed THIRTY FIVE THOUSAND DOLLARS ($35,000 00) for work performed dUring the period beginning February 20th through completion of the Shannon Community Center Artist shall furnish services as described In Exhibit A of thiS Agreement Terms and conditions for payment are attached In Exhibit B of thiS Agreement 1 2 The City shall be responsible for providing the ArtiSt, Without cost, copies of deSigns, draWings, reports, and other relevant data needed by the Artist to deSign and execute the Project 1 3 Colin Lambert & Peter Adams Will create a highly detailed and highly finished bas-relief mural depicting a mature Valley Oak Tree With Imbedded text expressing the Indigenous native Californians' understanding of "community" Agreement for Artistic Services A l'T ACHMENT 3 40 ~ 135 1 4 The Artist shall begin work after the execution of this Agreement ARTICLE 2 CHANGES IN SCOPE AND ADDITIONAL WORK 2 1 The Artist shall, whenever required dUring the term of this Agreement, present to the City In writing, drawing, or other appropriate media for further revIew and approval any significant changes In the scope, design, color, Size, material, utility ,and support requirements, texture, or location of the site or the Work A Significant change IS any change which affects the installation, scheduling, site preparation, or maintenance of the Work, or the concept of the Work as represented In the Original approved design 2 2 The Artist shall be obligated to perform the services called for In Exhibit A The Artist and the City agree that the Artist shall retain artistiC control of his/her services In the performance of the services under thiS Agreement, subject only to the limitations Imposed In Exhibit A 2 3 Notwithstanding the proVISions of Section 2 2 above, the City may, at any time, request the ArtIst In writing to revise portions of the services that he/she has prevIously completed In a satisfactory manner delete portions of the Scope of the Work that the Artist has not yet performed, perform additional work beyond the Scope of Work to be proVided In Exhibit A, or make other changes Within the General Scope of the Work to be performed under thiS Agreement In the event of such a written request, the Artist may but shall not be obligated to agree to any such request 24 In the event the request for change IS agreed to by the ArtiSt, thiS Agreement shall be amended, In Writing, specifying the agreed changes, Including, but not limited to, a description of services, additional budget, payment schedule and timetable 2 5 In the event that the Artist does not agree to the request, the City shall be entitled to terminate the Agreement for cause pursuant to Article 17 herein 2 6 No services for which additional compensation Will be charged shall be proVided by the Artist Without the prior written authOrization by the City ARTICLE 3 RESPONSIBILITY OF THE ARTIST 3 1 The Artist agrees that an essential element of thiS Agreement IS the skill and creativity of the Artist The Artist shall not assign the creative or artistiC portions of the Work to another party for the production of the Work Without the written consent of the City Failure to conform to thiS proVISion may be cause for termination of thiS Agreement, at the sole option of the City Agreement for Artistic Services Page 2 of 13 February 19 2008 it J ~ 5~ 3 2 The Artist shall be responsible for providing services descnbed In Exhibit A, Including but not limIted to, the quality and timely completion of the servIces The Artist shall be responsible for designing the Work so that It can be constructed without exceeding the approved overall budget for the project The Artist shall, without addItional compensation, correct or revise any errors, omiSSions, or other defiCIencies In his/her Work 3 3 In the event the servIces of the Artist are Integrated Into, combIned, or otherwise coordinated with services by third parties not within the control of the ArtiSt, the Artist shall not be responsible for such third party services If any part of the Artist's Work depends for proper execution or results upon the work of the City, or a third party responsible to the City, the Artist shall, pnor to proceeding with hiS or her Work, promptly report to the City any apparent discrepancIes or other defects In such other work which renders It unsUitable for proper execution and results by the Artist The Artist shall not be responsIble for any liability or failure to fulfill his/her obligations because of such discrepancies or defects Failure of the Artist to report a discrepancy or defect shall constitute an acceptance of the City'S or third party's work as fit and proper to receive Artist's Work Any costs caused by defective or III-timed work shall be borne by the party responsible therefore Nothing In thiS section shall limit the responslbllrty of the Artist to take all reasonable steps to coordinate hIs/her Work With the work of the City or of a third party on the project 34 If the Artist IS Involved In the executiOn, fabncatlon, transportation, Inspection, and/or Installation or the Work, tne follOWing proVISions shall apply a Tne Artist shall If ana when working on City property, supervise such clean-up as may be reasonably requested by the City At the close out of the Artist's Work, the Artist shall remove his/her equipment, excess matenals, etc , promptly and as requested by City b The City and any third party contractor on the project shall notify the Artist of their operation, constructIon, and maintenance schedules In and around the area where the Artist's Work IS to be performed The Artist shall perform hIs/her services In a manner and time so as not to cause Interference With any of the operations, construction or maintenance of the City or third party contractor In the event of a conflict between the schedules of the contractor and/or the City and the ArtiSt, the conflict Will be resolved by the City If the resolution of the conflict results In a delay of the performance of the ArtiSt, the Artist shall have the nght to renegotiate thiS Agreement to compensate him or her for any additional costs or expenses caused by the delay If such delay prevents Artist from complYing With the schedule In Exhibit A, Artist shall not be conSidered to have breached thiS Agreement, and Artist and City shall agree to amend the schedule In wntlng Agreement for ArtistiC Services Page 3 of 13 February 19 2008 '1~55 c The Artist shall complete the fabncatlon and installation of the Work In substantial conformIty wIth the attached Exhibit A, Scope of Work 3 5 The nsk of loss or damage to the Work shall be borne by the Artist until final acceptance by City, and the Artist shall take such measures as are necessary to protect the Work from loss or damage until final acceptance by City, except that the nsk of loss or damage shall be borne by the City pnor to final acceptance dunng such penod of time as the partially or wholly completed Work IS In the custody, control, or supervIsion of the City or ItS agents for the purposes of transportIng stonng, Installing, or performing any other ancillary services to the Work ARTICLE 4 WARRANTIES/STANDARDS 4 1 The Artist warrants that (a) the design of Work being commIssioned IS the I onglnal product of hlslher own creative efforts, (b) unless otherwise stipulated, the work IS onglnal, that It IS an edItIon of one (1), and that the Artist shall not sell or reproduce the Work, or allow others to do so, without the pnor wntten consent of the City 4 2 The Artist shall guarantee his/her Work to be free from faults of matenal and workmanship for a penod of one (1) year after installation and final acceptance by the City The ArtIst shall deliver the Work to the City free and clear of any hens from any source whatever The foregoing guarantees shall apply only to the Work that IS entirely that of the Artist or persons responsible to the ArtISt, as In sta Ilea , and shall not apply to matenals or workmanship or projects In whIch the Work of the Artist IS Integrated or combined, or to matenals purchased, acquIred, or Installed by a person or entity not responsible to the Artist 4 3 The Artist shall faithfully perform the work reqUired under thiS Agreement In accordance with standards of care, Skill, training, dIligence, and Judgment proVided by hIghly competent professionals who perform work of a SImIlar nature to the Work descnbed In thIS Agreement Artist shall assign only competent personnel to perform services pursuant to thiS Agreement In the event that CIty, In ItS sole discretion, at any time dunng the term of thiS Agreement, deSires the removal of any such persons, Artist shall, Immediately upon receiving notice from City of such deSIre of CIty, cause the removal of such person or persons, unless In the ArtiSt's sole opinion, the skIll or creativity of such person or persons IS essential to the creation of the Work ARTICLE 5 COMPENSA TION 5 1 The Artist shall be paId for services satlsfactonly rendered pursuant to thIS Agreement In accordance with the terms herein, Exhibits A and 8, and subsequent adjustments, changes, or additIons as specifically proVided for In thiS Agreement Such payment shall be full compensation for wor"- performed and services rendered, for all supervIsIon, labor, supplies, matenals, equipment or use thereof, for taxes, and for all other necessary inCidentals including transportation and storage of Work Agreement for ArtistiC ServIces Page 4 of 13 February 19 2008 '-13 :t 55 5 2 The amount and schedule of payments to the Artist are contained In the attached Exhibit B, Conditions & Terms of Payment Payments under thiS Agreement shall not exceed a maximum amount of $35,000, subject only to adjustments, changes or additIons as specifIcally provided for In thiS Agreement (hereafter "Total Price") 5 3 In the event the Artist Incurs costs In excess of the Total Price, the Artist shall pay such excess from hIs/her own funds, the City shall not be required to pay any part of such excess, and the Artist shall not have claim against the City on account thereof 54 The Artist shall submit inVOices to the City according to the schedule provided for In Exhibit B Such inVOices shall be In the form requested by the City 5 5 In the event that the City determines that Work for which It has been invoiced does not meet the contract specifications, and that It Intends to withhold payment, the City shall provide detailed written notice to the Artist within fifteen (15) days of receipt of inVOiCe, specifying the failure of performance for which the City Intends to withhold payment The Artist shall thereafter meet contract standards to the satisfaction of the City or adVise the City that he/she disputes the City'S determination that the speCifications have not been met 56 The City shall pay all inVOices that meet contract speCifications within thIrty (30) days of receipt of inVOice 5 7 No payment to the Artist for any work performed or services rendered shall constItute a waiver or release by the City of any claims rights or remedies It may have against the Artist under thiS Agreement or by law, nor shall such payment constitute a waiver remiSSion, or discharge by the City of any failure or fault of the Artist to satisfactorily perform the work as required under thiS Agreement 5 8 The services to be required of the Artist under thiS Agreement shall be completed In accordance with the schedule for completion of the Work, as provided for In Exhibit A, prOVided that such tIme limits may be extended or otherwise modified by written agreement between the Artist and the CIty 5 9 If, when the Artist completes fabrication or procurement of the Work In accordance with the approved schedule and notifies the City that the Work IS ready for installation, the Artist IS delayed from Installing the Work within the time speCified In Exhibit A as a result of the construction of the site for the Work not being suffiCiently complete reasonably to permit installation of the Work therein or If the City otherwIse does not make the site available to the Artist In accordance with the approved schedule, the CIty shall promptly reimburse the ArtIst for reasonable transportation and storage costs Incurred for the period between the time provided In Exhibit A for commencement of Installation and the date upon which the site IS made available to the Artist for installation of the Work Agreement for ArtistiC Services Page 5 of 13 February 19 2008 Lf4;:f 55 5 10 The Artist shall bear any transportation and storage costs resulting from the completion of the Work prror to the time provided In the schedule for Installation of the Work 5 11 The City shall always grant a reasonable extension of time to the Artist In the event that there IS a delay on the part of the City In performing ItS obligations under thiS Agreement or In completing the underlYing capital project, or If conditions beyond the Artist's control render timely performance of the Artist's service Impossible or unexpectedly burdensome Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control Will not be conSidered a breach of thiS Agreement, as long as such obligations shall be suspended only for the duration of the conditions causing the delay 5 12 For delays In the installation of the Work beyond the schedule prOVided for under thiS Agreement caused by factors reasonably under the Artist's control, the City agrees to accept fifty dollars ($50 00) per day as liqUidated damages for such delay ARTICLE 6 ARTIST'S RIGIHTS 6 1 The City shall, at ItS expense, prepare and Install at approprrate locations, after consultation with the ArtiSt, a plaque or sign Identifying the ArtiSt, the title of the Work, and the year of completion The City shall also reasonably maintain such notice In good repair against damages due to normal wear and tear over time, vandalism and the elements 6 2 The City recogmzes that maintenance of tne Work on a regular baSIS IS essential to the Integrrty of the Work The City shall reasonably assure that the Work IS properly maintained and protected, taking Into account the recommendations of the Artist as stated In the maintenance program proVided by the Artist 6 3 The City agrees that It shall not Intentionally damage, alter, modify, change, or substantially relocate the Work of the Artist without first confernng with the Artist and obtaining the pnor wntten approval of the Artist to the proposed modification, change, or substantial relocatIOn 64 Notwithstanding the Artist's refusal to prOVide (or the City'S failure for any reason otherwise to obtain) the Artist's wntten approval prOVided for In Section 6 3 above, the City, In ItS sole discretion, shall have the nght to remove any work of art proViding the follOWing terms and conditions are met a The removal proposal shall first be submitted to and conSidered by the City CounCil Agreement for ArtistiC Services Page 6 of 13 February 19 2008 4D~55 b The CIty CouncIl shall have the non-delegable duty to decIde that a work of art shall be removed The deCISIon to remove shall not be made by the City Council until It has revIewed the removal proposal c In the event that the CIty CouncIl decides to remove the Work, the Artist shall have the first nght of refusal to purchase hIs/her Work, If It stands alone and IS not Integrated Into a larger artwork, bUIldIng, or structure and can be removed WIthout expense to the CIty The Artist shall also have the nght to have hIs/her name removed from the Work, as well as from the plaque Installed pursuant to SectIon 6 1 65 The City shall have the nght to determine, after consultatIon With a profeSSIonal conservator, when and If repaIrs and restoratIons to the Work WIll be made During the Artist's lifetIme, the ArtIst shall have the nght to approve all major repaIrs and restoratIons which approval the ArtIst shall not unreasonably Withhold If the ArtIst unreasonably falls to approve any repaIr or restoratIon, the CIty shall have the nght to make or supervise sIgnificant repaIrs and restoratIons In the event that the City makes repaIrs or restorations not approved by the ArtiSt, the Artist shall have the nght, at his/her sole option, to have hIs/her name and associatIon WIth the Work severed To the extent practIcal, the Artist dunng his/her lifetIme, shall be given the opportUnity to make or supervIse sIgnificant repaIrs and restoratIons and shall be paId a reasonable fee for any such service, If the CIty and the ArtIst shall agree, In wntlng, pnor to the commencement of any significant repaIrs or restorations, upon the ArtIst's fee for such services 66 All repairs and restorations whether performed by the ArtiSt, the City, or thIrd parties responSible to the ArtIst or the City, shall be made In accordance With profeSSionally recognized principles of conservatIon of artworks ARTICLE 7 COPYRIGHTS 7 1 The Artist shall retain all copynght and other nghts In and to the Work created under thiS Agreement, other than ownershIp of the Work Itself ArtIst shall grant to the CIty an Irrevocable license to graphically depIct the artwork In any non- commercial manner whatsoever For the purpose of thIS limitation, the graphic depIction of the artwork(s) on matenals deSigned to promote the CIty shall be deemed to be a non-commercIal use 7 2 If for any reason the proposed deSign IS not Implemented, all nghts to trf proposed artwork shall be retained by the Artist 7 3 The ArtIst agrees that all work performed under thIS Agreement shall comply With all applicable patent, trademark, and copynght laws, rules regulations, and codes of the United States The ArtIst further agrees that the Work Will not utilize any protected patent, trademark, or copynght In performance of work under thiS Agreement, unless the Artist has obtaIned proper permisSIon and all releases and other necessary Agreement for Artistic Services Page 7 of 13 February 19 2008 )jfo1G6 documents and provided copies of such releases and documents to City If the Artist specifies any matenal equipment process, or procedure that IS protected, the Artist shall disclose such patents, trademarks, and copynghts In the construction drawings and technical specifications 74 The Artist agrees to release, indemnify and hold harmless the City, ItS officers and employees from any and all claims, damages, SUitS, costs, expenses, liabilities, actions, or proceeding of any kind resulting from the performance of work under this Agreement that Infnnges upon any patent trademark or copynght protected by law 7 5 All reproductions by the City shall contain a credit to the ARTIST and a copynght notIce substantially In the following form @ Colin Lambert & Peter Adams, 2008 The Artist shall use his/her best efforts to Include a credit reading substantially "An onglnal work commissioned by the City of Dublin, California" In any public showing under the Artist's control of reproductions of the Work ARTICLE 8 NO EMPLOYER/EMPLOYEE OR AGENCY RELATIONSHIP 8 1 No relationship of employer and employee IS created by this Agreement, It being understood that Artist shall act hereunder as an Independent contractor and not as an employee of City City shall have the nght to control Artist's work only Insofar as the results of Artist's services rendered pursuant to this Agreement Arnst shall not have any claim under this Agreement or otherwise against City for senlonty vacation time, vacation pay, sick leave, personal time off, overtime, health Insurance medical care hospital care, retirement benefits SOCial Secunty disability, Worker's Compensation or unemployment Insurance benefits, CIVil service protection, or employee benefits of any kind Artist shall be solely liable for and obligated to pay directly all applicable taxes Including but not limited to Federal and State Income taxes Artist shall Indemnify and hold City harmless from any and all liability that City may Incur because of Artist's failure to pay such taxes Notwithstanding the foregoing, If the City determines that pursuant to state and federal law, Artist IS an employee for purposes of Federal and State tax withholding, City shall, upon two weeks notice to ArtiSt, withhold from the payments to Artist hereunder federal and state payroll taxes and pay said sums over to the Federal and State governments Although City shall control only the results of Artist's services under this Agreement, Artist agrees to perform his/her said work and functions at all times In stnct accordance with currently approved methods and practices In his/her field, In a competent efficient, tImely, and satisfactory manner, and In accordance with the standards reqUired by the City 8 2 Nothing contained In this Agreement shall be construed as limiting the nght of Artist to engage In his/her profeSSion separate and apart from this Agreement so long as such actiVities do not Interfere with the performance by Artist of his/her obligations as set forth herein and In Exhibit A Agreement for ArtistiC ServIces Page 8 of 13 February 19 2008 11 7155' 83 Except as City may specify In wntlng, Artist shall have no authonty, express or Implied, to act on behalf of City In any capacity whatsoever as an agent Artist shall have no authonty, express or Implied, pursuant to this Agreement to bind City to any obligation whatsoever ARTICLE 9 CONFORMITY WITH LAW AND SAFETY 9 1 Artist shall observe and comply wIth all applicable laws, ordinances, codes and regulations of governmental agencies, Including all provIsions of the Occupational Safety and Health Act of 1979 and all amendments thereto, and all applicable federal, state, mUnicipal, and local safety regulations All services performed by Artist must be In accordance with those laws, ordinances, codes, and regulations Artist shall Indemnify and save City harmless from any and all liability, fines, penalties, and consequences from any noncompliance or violations of such laws, ordinances, codes, and regulations 9 2 If death, senous personal inJury or substantial property damage occurs In connection with the performance of this Agreement, Artist shall Immediately notify the City Manager by telephone Artist shall promptly submit to City a wntten report, In such form as may be reqUired by City, of all aCCidents that occur In connection with this Agreement The report must Include the follOWing information (1) name and address of the Injured Of de~eased oerson(s), (2) name and address of A.rtlst's subcontractor, If any, (3) name and address of Artist's liability Insurance carner, and (4) a detailed descnptlon of the aCCident and whether any of City's eqUipment, tools, matenal, or staff were Involved ARTICLE 10 CONFLICT OF INTEREST No officer, member, or employee of City and no member of ItS governing bodies shall have any pecuniary Interest, direct or Indirect, In this Agreement or the proceeds thereof Neither Artist nor any member of Artist's family shall serve on a City board or committee or hold any position that, either by rule, practice, or action, nominates recommends, or supervises Artist's operations or authorizes funding to Artist ARTICLE 11 ASSiGNMENT OF CONTRACT Nothing contained In this Agreement shall be construed to permit assignment or transfer by Artist of any fights under this Agreement and such assignment or transfer IS expressly prohibited and vOid ARTICLE 12 CONF~DENTIALlTY OF IN/FORMATION Confldentlallnformatron IS defined as all information disclosed to Artist that relates to the City'S past, present, and future activities, as well as actIVIties under this contract Artist Will hold all such information In trust and confidence except as otherwise Agreement for ArtistiC Services Page 9 of 13 February 19 2008 4g.r 55' reqUired by law Upon cancellation or expiration of this Agreement, Artist wIll return to CIty all written or descriptive matter that contains any such confidential information ARTICLE 13 NON-DISCRIMINATION Artist assures that he/she WIll comply WIth the Americans With Disabilities Act and WIth TItle VII of the CIvil Rights Act of 1964, and that no person shall, on the grounds of race, creed, color disability, gender, sexual arrentation, national ongln, age, relIgion, VIetnam era Veteran's status, political affiliation, or any other non-ment factors be excluded from partiCipation In, be denied the benefits of, or be otherwIse subjected to diSCrimination under thiS Agreement ARTICLE 14 USE OF CITY PROPERTY Artist shall not use City premises, property (IncludIng equipment, Instruments, and supplies), or personnel for any purpose other than In the performance of his/her obligations under thiS Agreement ARTICLE 15 FEDERAL AND STATE AUDITS U nnl the expiration of five years after the furnishing of any services pursuant to thiS Agreement, Arnst shall make available, upon wntten request, to the Federal/State government or anv of their duly authOrized representatIves, thIS Agreement and such bOOKS documents, and records of Artist that are necessary to certify the nature and extent of the reasonable cost of services to City If Artist enters Into any Agreement With any related organization to proVIde services pursuant to thIS Agreement With a value cost of $10,000 or more over a twelve-month penod, such Agreement shall contain a clause to the effect that until the expIration of five years after the furnIshing of services pursuant to such subcontract, the related organization shall make available, upon wntten request, to the Federal/State government or any of their duly authOrized representatIves, the subcontract, and books, documents and records of such organIzation that are necessary to venfy the nature and effect when and If It IS not reqUired by law ARTICLE 16 MODI FICA TlON No alteration or vanatlon of the terms of thIS Agreement shaJl be valid unless made In wntlng and Signed by the parties hereto ARTICLE 17 TERMINA rrON 17 1 Either party may terminate thiS Agreement With or Without cause by proViding thIrty (30) days notice In writing to the other party Upon the expiration date of said notice thiS Agreement shall become of no further force or effect whatsoever and each of the parties shall be relieved and discharged herefrom Agreement for ArtistiC ServIces Page 10 of 13 February 19 2008 LfC( 1 Sa 18 3 Upon final acceptance of the Work, the City shall, to the extent permitted by law, indemnify, and hold harmless the Artist against any and all claims or liabilities that arise thereafter In connection with the Work performed under thiS Agreement, except claims by the City against Artist and claims that may occur as a result of the Artist's breach of the warranties proVIded elsewhere In thiS Agreement ARTICLE i 9 INSURANCElSElF-~NSURANCE Artist shall at all times dunng the terms of thiS Agreement with the City maintain In force those Insurance policies and bonds as designated In the attached Exhibit C and will comply with all those requIrements as stated herein ARTICLE 20 E~I?LOYMEINIT ELlG~BIUTY Persons prOViding services under thiS contract will be required to proVide the necessary documentation to establish Identity and employment ehglblllty as reqUired by the Immigration Reform and Control Act of 1986 Failure to proVide the necessary documentation will result In the termination of contract as required by the Immigration Reform and Control Act of 1986 ARlilClE 21 SEVERABIUTY In the event any of the prOVIsions, or applications thereof, of thiS Agreement are held to be unenforceable or Invalid by any court of competent Junsdlctlon, the validIty and enforceability of the remaining provISions, or applications thereof, shall not be affected ARTICLE 22 TIME IS OF THE ESSENCE The parties agree that In the performance of the terms and reqUirements of thiS Agreement by the Artist that time IS of the essence Artist shall devote such time to the performance of services pursuant to thiS Agreement as may be reasonably necessary for satisfactory performance of Artist's obligations pursuant to thiS Agreement ARTICLE 23 LICENSES. PERMITS. ETC Artist represents and warrants to City that he/she has all licenses, permits, qualifications and approvals of whatsoever nature that are legally reqUired for Artist to practice his/her profeSSion Artist represents and warrants to City that Artist shall, at his/her sole cost and expense, keep In effect at all times dunng the term of thiS Agreement any licenses, permits, and approvals that are legally reqUired for Artist to practice his/her profeSSion ARTICLE 24 GOVERNING LAW Agreement for ArtistiC Services Page 12 of 13 February 19 2008 501 55 This Agreement shall be governed by the laws of the State of California and any SUIt or action by either party shall be brought In the County of Alameda, California ARTICLE 25 ATTORNEYS FEES If a party bnngs any action, Including an action for declaratory relief, to enforce or Interpret the proVISion of this Agreement the prevailing party IS entitled to reasonable attorneys' fees In addition to any other relief to which that party may be entitled Such fees may be set by the court In the same action or In a separate action brought for that purpose ARTICLE 26 NO WAIVER The waiver of any breach of a speCific prOVISion of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement ARTICLE 27 SURVIVAL All obligations anslng pnor to the termination of this Agreement and all proVISions of this Agreement allocating liability between City and ArtIst survive the termination of this Agreement ARTICLE 28 EXECUTION IN WITNESS WHEREOF the parties hereto have executed this agreement as of the day and year first wntten above Mayor CITY OF DUBLIN Attest City Clerk Approved as to form City Attorney J \WPD\Mnrsw\114\001 \2000\Agree\artlst_ 1105 doc Agreement for ArtIstiC Services Page 13 of 13 February 19 2008 .51:f55 EXHIBIT A SCOPE OF SERVICES Summary of Scope of Artist's Services The Intent of this Agreement IS to define the work to be done In designing, planning, fabncatlng, transporting and Installing artwork for the Shannon Community Center In the City of Dublin, California Description of Artwork Colin Lambert and Peter Adams will provide a highly detailed and highly finished bas- relief mural depicting a mature Valley Oak Tree with Imbedded text expressing the Indigenous native Californians' understanding of "community' The faux-limestone mural will appear to have been carved from a limestone slab measunng 7' tall by 9 wide and 6" thick We estimate that the completed work Will weigh approxImately 900 pounds The matenal for thiS bas-relief IS a white-cement based concrete formulated and finished to resemble a creamy limestone It IS fabncated on and reinforced by an Internal welded aluminum truss system The truss system has an Integrated mounting member which attaches to mounting bracKets connected to wall studs The aluminum frames, mounting member, wall bracket connectors and wall studs Will be fabricated to engineered speCifications The concrete bas-relief surfaces Will be delivered sealed With a high quality penetrating sealer, resulting In a stain resistant and cleanable surface Apart from occaSional dusting, the work of art IS Virtually maintenance free The completed art work Will be delivered to the site and Installed by the Artists and their contracted profeSSionals Schedule February 20, 2008 Initiate engineering & design work April 1 st, 2008 completion of design cartoon June 1 st 2008 completion of clay modeling (City to review prior to final casting) July 15th, 2008 completion of casting August, 2008 delivery and installation Artist Will be notified of any major changes In the schedule Within 60 days of the completion of the faCIlity Agreement for Artistic Services - EXHIBIT A Page 1 February 19 2008 5:2 ~ 55" EXHIBIT B CONDITiON & TERMS OF PAYMENT 1 The term of this Agreement IS from February 19, 2008 to the completion of the Shannon CommunIty Center project The foregoing notwIthstandIng, this Agreement may be extended by mutual agreement on a month-by-month basIs 2 The CIty agrees to pay Artist a fixed fee not to exceed $35,000, which shall constitute full compensation for all services to be performed and matenals furnished by the Artist under this Agreement The fee shall be paid In the follOWing Installments, each Installment to represent full, final and non-refundable payment for all services and matenals proVided pnor to the due date thereof City Will pay ArtIst upon submiSSIon of a wntten inVOice from ArtIst to City As early as practical, but not later than thirty (30) calendar days follOWing receipt of said inVOiCe, City shall pay ArtIst the full face value of the invOIce Terms Delivery & installation $12,25000 $8,750 00 $8,75000 $5,25000 Open contract, Initiate englneenng, procure matenals Completion of full size clay model Completion of concrete casting Agreement For ArtistIC Services - EXHIBIT B Page 1 February 19 2008 6c3155" EXHIBIT C INSURANCE REQUIREMENTS [NOTE THIS IS STANDARD FOR CITY SERVICES CONTRACTS, THE TERMS CAN BE ADJUSTED TO FIT ARTISTS' NEEDS BUT SHOULD BE REVIEWED BY THE CITY A TIORNEY FOR ADEQUACY] Contractor shall procure and maIntaIn for the duratIon of the contract "occurrence coverage" Insurance agaInst claims for injuries to persons or damages to property whIch may anse from or [n connection WIth the performance of the work hereunder by the Contractor, Its agents representatives, employees or subcontractors The cost of such Insurance shall be Included [n the Contractor's bId a MIn[mum Scope of Insurance Coverage shall be at least as broad as 1 Insurance ServIces Office form number GL 0002 (Ed 1/73) covenng comprehensIve General L[ab[l[ty and Insurance ServIces OffIce form number GL 0404 coverrng Broad Form ComprehensIve General Llab[l[ty or Insurance Services Office Commercial General L[ab[l[ty coverage ("occurrence" form CG 0001 ) 2 lrsurance ServIces Office form number CA 0001 (Ed 1/78) covenng Automob[le L[ab[l[ty code 1 "any auto" and endorsement CA 0025 3 Workers CompenSaI[On Insurance as required oy tne Labor Code of the State of Cal[fornla and Employers Llab[l[ty Insurance b M[nlmum LImIts of Insurance ArtIst shall ma[ntaln lImIts no less than 1 General L[ab[lIty $1,000,000 combIned single [[mlt per occurrence for bod[ly Injury personal InJury and property damage If commerc[al General Llab[l[ty Insurance or other form WIth a general aggregate l[mlt [S used eIther the general aggregate IIm[t shall apply separately to thiS project/location or the genera! aggregate I[m[t shall be tWice the requIred occurrence I[mlt 2 Automobile Llab[l[ty $1,000,000 combined s[ngle IIm[t per accident for bod[ly Injury and property damage 3 Workers' CompensatIon and Employers Llab[l[ty Workers' CompensatIon limits as requIred by the Labor Code of the State of Cal[forn[a and Employers Liability limits of $1 000 000 per accIdent Agreement For ArtistiC Services - EXHIBIT C Page 1 of 3 February 19 2008 61f c:I 5q c Oeducbbles and Self-Insured Retentions Any deductlbles or self-Insured retentions must be declared to and approved by the City At the option of the City either the Insurer shall reduce or eliminate such deductrbles or self-Insured retentions as respects the City, Its officers, officials and employees, or the Artist shall procure a bond guaranteeing payment of losses and related investigations, claim adminIStration and defense expenses d Other Insurance ProvIsions The policIes are to contain, or be endorsed to contam, the following provISIons 1 General Liability and Automobile Liability Coverages A The City, Its offIcers, offiCials employees and volunteers are to be covered as Insureds as respects liability arising out of activIties performed by or on behalf of the Artist products and completed operations of the ArtIst, premises owned, occupied or used by the Artist, or automobiles owned leased hired or borrowed by the Artist The coverage shall contain no special limitations on the scope of the protectIon afforded to the City, Its officers offiCials, employees or volunteers B The ArtISt's Insurance coverage shall be primary Insurance as respects the city Its officers offiCials emplovees and volunteers Any Irsurance or sel.f-Insurance maintained by the CIty Its officers, offiCials, emplovees or volunteers snail be excess or tne At1Ist's Insurance ana ShaH not contrlDUI€ wltn It C Any failure to comply with reporting provISions of the policies shall not affect coverage provided to the City, Its officers, offiCials, employees or volunteers o The Artist's Insurance shall apply separately to each Insured against whom claim IS made or SUit IS brought, except With respect to the limits of the Insurer's liability 2 Workers' Compensation and Employers Liability Coverage The Insurer shall agree to waIve all nghts of subrogation against the CIty Its officers offiCials employees and volunteers for losses arising from work performed by the ArtIst for the City 3 Professional Liability Artist shall carry professional liabIlity Insurance In an amount deemed by the City to adequately Drotect the Artist against liability caused by negligent acts errors or omiSSions on the part of the Artist In the course of performance of the services specified In thiS Agreement Agreement For ArtistiC Services EXHIBIT C Page 2 of 3 February 19 2008 6516S- 4 All Coverages Each Insurance polley required by this clause shall be endorsed to state that coverage shall not be suspended, VOided canceled by either party, reduced In coverage or In limits except after thirty (30) days' pnor wntten notlce by certified mal! return receipt requested has been given to the CIty e Acceptability of Insurers Insurance]s to be placed With Insurers With a Bests' rating of no less than A VII f Verification of Coveraqe Artist shall furnish City With certificates of Insurance and wIth anginal endorsements effectmg coverage required by thiS clause The certificates and endorsements for each Insurance polley are to be sIgned by a person authonzed by that Insurer to bind coverage on Its behalf The certificates and endorsements are to be received and approved by the City before work commences The City reserves the nght to require complete, certified caples of a[1 required Insurance pol]cles at any tIme 9 Subcontractors Artist shall Include all subcontractors as Insureds under Its poliCies or shall furnish separate certIficates and endorsements for each subcontractor All coverages for subcontractors shall be subject to all of the reqUirements stated herein h Waiver Tne CIIY may approve a va nation In mose Insurance requiremenTs upon a de!ermlnallon that the cove,ages scope limits and TOrms of such Insurance are either not commercially available or that the CIty's mterests are otnerwlse fully protected Agreement For ArtistiC Services EXHIBIT C Page 3 of 3 February 19 2008