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HomeMy WebLinkAbout4.07 ApprvAgrmntW/ArtsFoundCITY 89-8 CITY OF DUBLIN AGENDA STATEMENT COUNCIL MEETING DATE: December 11, 1989 SUBJECT : Agreement with Dublin Fine Arts Foundation ~(Prepared by Paul S. Rankin, Assistant City Manager) EXHIBITS ATTACHED : Resolution Approving Proposed Agreement RECOMMENDATION ~ Resolution ~ Adopt Agreement FINANCIAL STATEMENT: The City will not assume any financial costs for the production of the sculpture. JESCRIPTION : The City Council has awarded a contract to Golden Bay Construction for the construction of a fountain in the interior courtyard of the Civic Center. The design of the fountain was specially created to accommodate a sculpture being commissioned by the Dublin Fine Arts Foundation (DFA). An agreement was originally included on the City Council agenda for the meeting on November 27, 1989. Staff requested that the item be continued to December 11, 1989 due to corrections which had not been incorporated in the final draft. Primarily, the corrections were needed to clarify the current status of the project. The early drafts did not assume that the construction of the fountain would be underway. The City Attorney also felt that it was important to clearly identify areas of responsibility. The previous agreement was also corrected to delete references to "Owner." The Foundation has pursued the project with the intent that ownership of the sculpture would transfer to the City once the artwork was installed and accepted. The City Attorney's Office has been working with DFA representatives in developing an agreement with the Artist. The agreement is somewhat complicated by the number of parties which are involved. The agreement recognizes the Artist as a business (E. L. Smyth, Inc.) as well as the artist as an individual (Ned Smyth). In addition, both DFA and the City are recognized as parties to the Agreement. The financial costs of the commission are primarily between DFA and the Artist. However, the City __Attorney felt that the City should also be party to the agreement, since uture obligations are included in the event that the work is damaged or bandoned. The Agreement also addresses continued maintenance £esponsibilities and each of the parties' rights to use replicas of the artwork. The costs associated with the commission and identified within this agreement are to be borne fully by DFA. Ron Nahas, President of DFA, has indicated that the current schedule with the Artist anticipates delivery of the sculpture in the Fall of 1990. They are hopeful that if the Artist's work schedule allows, the work can be delivered earlier. The fountain construction began November 27, 1989. The current contract period is 90 days provided that time extensions are not warranted due to weather or other impacts. Staff has prepared a resolution which authorizes the Mayor to execute the agreement and it is recommended that the City Council adopt the resolution. COPIES TO: ITEM NO. ~ ~ Ron Nahas, DFA President CONTRACT 89-8 CIVIC CENTER COURTYARD FOUNTAIN ITEMIZATION OF WORK ENGIN~'EH'S ESTIMATE AMBO ENGIN~'~ING GOLDEN BAY CONSTR. BID ITEM UNIT UNIT TOTAL UNIT TOTAL UNIT TOTAL ITEM DESCRIPTION MEAS. QTY. PRICE PRICE PRICE PRICE PRICE PRICE I DEMOLITION OF CONC PAVING LS 1 300.00 $00.00 6,350. O0 6,350.00 2,200.00 2,200. O0 2 LS 1 2,000.00 2,000.00 5,800.00 5,800.00 10,081.00 10,081.00 3 LS I 8,000.00 8,000.00 5,200.00 5,200.00 7,600.00 7,600.00 4 LS I 1,000.00 1,000.00 2,200.00 2,200.00 2,100.00 2,100.00 5 LS I 12,000.00 12,000.00 21,400.00 21,400.00 24,600.00 24,600.00 6 LS I 4,900.00 4,900.00 9,050.00 9,050.00 7,150.00 7,150.00 7 LS I 15,000.00 15,000.00 31,320.00 31,320.00 33,449.00 53,449.00 8 LS 1 14,250.00 14,250.00 17,150.00 17,150.00 17,233.00 17,233.00 9 LS I 1,500.00 1,500.00 1,300.00 1,300.00 2,807.00 2,807.00 10 LS 1 950.00 950.00 3,800.00 3,800.00 1,800.00 1,800.00 11 EXCAVATION & DISPOSAL CONC PUMP VAULT & LADDER SIDEWALK DOOR CONCRETE FOUNTAIN STONEWORK FOUNTAIN MECHANICAL FOUNTAIN ELECTRICAL WATERPROOFING CONCRETE PAVING INCID IMPVMTS: INSTALL TRENCH DRAIN; STAIR RAIL; GLOBE SUPPORT LS 12 REPAIRS TO EXIS IMPVMTS LS I 1,000.00 1,000.00 2,020.00 2,020.00 4,250.00 4,250.00 I 800.00 800.00 5,700.00 5,700.00 500.00 500.00 TOTAL: 61,700. O0 111,290. O0 113,770. O0 RESOLUTION NO. - 89 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING AN AGREEMENT WITH DUBLIN FINE ARTS FOUNDATION AND E. L. SMYTH, INC. WHEREAS, The Dublin Fine Arts Foundation (DFA) is an independent entity working within the Dublin Community; and WHEREAS, DFA has embarked on an effort to Commission a sculpture created by Ned 8myth, which will be displayed at the Dublin Civic Center; and WHEREAS, DFA has agreed to transfer ownership of the artwork to the City of Dublin once the piece is installed; and WHEREAS, The City has proceeded at its sole cost to construct a fountain which will accommodate the artwork; and WHEREAS, The City is supportive of DFA's efforts to integrate public art into public spaces within the community; and WHEREAS, The display of artwork will enhance and enrich the lives of members of the community; and WHEREAS, The installation and display of the artwork will be subject to certain terms and conditions; and WHEREAS, It is desirable to state each party's obligations and rights in a written agreement. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the Agreement between: The Dublin Fine Arts Foundation, E.L. Smyth, Inc., and the City of Dublin, attached hereto and by reference made a part hereof. BE IT FURTHER RESOLVED that the Mayor is hereby authorized to execute the Agreement referenced above. PASSED, APPROVED AND ADOPTED this llth day of December, 1989. AYES: NOES: ABSENT: ATTEST: Mayor City Clerk ~GREEMENT THIS AGREEMENT is made and entered into as of the day of , 1989 by and between THE DUBLIN FINE ARTS FOUNDATION (hereinafter called the "DFA"), E.L. SMYTH, INC. ~ (hereinafter called the "Artist") and the CITY OF DUBLIN, a Municipal Corporation (hereinafter called the "city"). WITNESSETH: WHEREAS, DFA desires to commission and acquire a certain work of art (the "Work") which has been conceived and designed by NED SMYTH (hereinafter called ~Smyth") to be installed on the grounds of the new Dublin Civi~ ~Center (the "Center") , in Dublin, california; and WHEREAS, DFA desires to transfer ownership of title to City and City desires to accept title to the Work, upon installation by Artist, final acceptance thereof by DFA and City and full payment therefore by DFA; and WHEREAS, the Artist desires to carry out this commission; WHEREAS,iSMYTH is employed by the Artist; NOW, THER~FOkE the parties agree as follows: 1. COMMISSION. DFA hereby commissions the Artist and the Artist hereby accepts the commission and agrees to have Smyth design and oversee the fabrication and installation of the Work which shall consist of a sphere, approximately eight (8) feet in diameter, covered with mosaics, in accordance with the design proposal previously submitted by the Artist and approved by the Dublin Fine Arts Committee, on behalf of DFA, and by the Dublin city Council, on behalf of the city. 2. THE ARTIST'S SERVICES. A. The proposal heretofore submitted by the Artist includes a model of the Work (the "Maquette") and the proposed location of the Work (the "Site") within a fountain to be built in the central courtyard of the Center. The fountain was also designed by Smyth. DFA and the City have approved the Maquette and the Site. The Maquette shall remain the property of the Artist. B. The Artist has reviewed and approved the technical and working drawings of the fountain. The method of attachment and installation of the work shall comply with all structural integrity and safety requirements of the engineers retained by DFA an~ the City's Building Official. C. Following the signing of this Agreement, and at such time as the Owner's financing is in place, but no later than January 1, 1990, DFA shall issue a written "Notice to Proceed" to the Artist which shall authorize the Artist to proceed with the fabrication of the Work. Said Notice to Proceed shall be accompanied by the payment described in Paragraph 3(A) (2) of this Agreement. The Artist agrees to complete the fabrication and installation of the Work within one (1) year from the date of receipt of the said Notice and payment. The notice to -2- proceed shall be deemed received ten (10) days after mailing by First Class Mail. 3. ~EES. A. DFA shall pay to the Artist, as the purchase price for the Work and the services to be rendered by the Artist, the sum of $100,000, to be paid in the following installments: 1. $12,500, which has heretofore been paid to the Artist for the Proposal and deposit on the sphere; 2. $27,500 on or before January 1, 1990, as provided in Paragraph 2(C) of this Agreement; 3. $45,000 upon notice accompanied by photographs or other evidence to DFA and City that the Artist has completed the fabrication of the sphere and all mosaic tiles have been received and attached to the sphere and the is ready for delivery to the site for installation; sphere and 4. $15,000 after the sphere has been delivered and the Work has been fully installed at the Site. B. The purchase price includes all of the Artist's costs and expenses in carrying out its obligations hereunder including materials, design, installation design, fabrication, transportation and installation of the Work. DFA shall be responsible for, and shall pay, any federal, state and local sales or use taxes applicable to this transaction, if assessed. 4. PAYMENTS. Except for the payment provided in Paragraph 3(A) (2) hereof, which shall be paid on or before January 1, -3- 1990, the Artist shall give written notice to DFA when the various payments set forth in Article 3 become due and the payment then required shall be made within thirty (30) days from the date when such notice is mailed to DFA. 5. RESPONSIBILITIES OF THE PARTIES. A. The Work shall be fabricated and installed by the Artist in conformity with the Maquette and the Proposal as presented to DFA and City subject to such minor changes as are made necessary by the materials or the production process or as are deemed necessary or appropriate by the Artist to carry out the overall design. DFA and City understand that it may not be possible to create the Work precisely as depicted in the Maquette; however, if, during the fabrication process, Artist makes significant changes in size, imagery, color, type of mosaic, or other approved elements of the Work, Artist will notify DFA and City in writing and will receive DFA's and City's written approval prior to proceeding with changes. A significant change is any change in the scope, design, color, size, material, texture or location on the Site of the Work which affects installation, scheduling, Site preparation or the concept of the Work as maintenance for the Work or represented in the Maquette. B. The Artist will be responsible for arranging, supervising and paying all costs associated with transporting the Work to the site. If, because of the limited access to the site, it is necessary to utilize a large crane or other special -4- purpose machinery to transport the Work to the site from the street, the rental cost for such equipment, in excess of $2,000.00, shall be payable by DFA. DFA and City shall be responsible to pay all costs and expenses of site preparation necessary to the timely and proper installation of the Work, including preparation of the fountain in which the Work is to be installed and installation of all required structural supports and connections for the Work as depicted in the city's Civic Courtyard Fountain Drawings and Specifications, Project ~89-8. DFA and city shall also be responsible to pay all costs and expenses associated with public access, public security, landscaping and lighting of the Work, all as deemed appropriate by City. The Artist will supply DFA and the City with all necessary information in writing to enable DFA to prepare the site for the installation of the Work. C. The Artist and Smyth shall use a high standard of care and diligence in the application of the Artist's skills to this project. The Artist represents and warrants that the execution and fabrication of the Work will be performed in a workmanlike manner. The Artist and Smyth shall devote such time to the performance of the Work pursuant to this Agreement as may be reasonably necessary for the satisfactory performance of Artist's and Smyth's obligations under this Agreement. The Artist represents and warrants that the Work, as fabricated and installed, will be free from any defects in materials and workmanship, and that ~he Work is free and clear -5- of any liens or encumbrances from any source and of any kind or nature whatsoever. The Artist and Smyth hereby represent and warrant that the Work as fabricated and installed, including the design and materials, is suitable to withstand without cracking, chipping, pealing, fading, rusting, or otherwise deteriorating, the climactic and environmental conditions commonly experienced within and in the general vicinity of the City of Dublin. Such periodic conditions include but are not limited to temperature in excess of 100 degrees fahrenheit fahrenheit, high-velocity winds, heavy very low humidity. The Artist shall all defects in its and below 32 degrees rainfall, and periods of guarantee the Work to DFA and city against design, workmanship and materials for a period of three (3) years following the completion and written acceptance by DFA and City of the installation and if any such defects occur in this period, the Artist agrees to promptly and satisfactorily repair, correct, or replace the defective portion at the Artist's own expense. The final inspection of the Work by DFA and the City shall take place within seven (7) days after written request by the Artist. Final completion shall occur upon correction of all items noted in the final inspection. Upon completion of the installation of the Work and acceptance thereof by DFA and City, the Artist shall not be responsible for any damage inflicted on the Work by any third parties, or resulting from any defects in the technical and working drawings or engineering instructions and drawings provided by engineers 12/6/89 retained by DFA and city. D. The Artist and Smyth hereby represent and warrant to DFA and City that the Work is solely the result of the artistic and creative effort of the Artist and Smyth, is original, one of a kind and does not knowingly infringe upon any copyright. Notwithstanding the foregoing representation and warranty, DFA and City hereby acknowledge that.Artist has used in the past and may use in the future some of the same elements comprising the Work and the Artist and Smyth reserve the right to use elements and portions of the Work in other works of art, in different configurations. E. At DFA's or City's request and expense, the Artist will execute and deliver to DFA and City any instruments that DFA or City may reasonably require to confirm ownership of the Work, or to enable DFA or city to dispose of any rights therein. Following the completion of the installation of the Work, the Artist agrees to sign, on request, photographs of the Work to be submitted to it by DFA or City to certify its authenticity. F. If DFA and City are not ready to have the Artist begin the installation but Artist and Smyth are fully prepared to begin such installation, within six (6) months of the date of the Notice to Proceed, the price shall be revised to include any increases in the costs of installation over the estimates and cost quotations obtained by the Artist which are based upon installation of the Work before September 1, 1990. G. If the installation date is delayed by an event under -7- the control of DFA or City, and the Artist and Smyth are fully prepared to begin installation of the Work, then DFA or City shall pay the cost of storage of the Work and moving the Work to and from the place of storage. H. During the installation of the Work, City shall provide the Artist with a space at the Center, in reasonable proximity to the intended location of the Work, in which the Artist may store the Work, materials comprising the Work, and tools. During the installation, this space shall receive the same security protection by the city which the city extends to the Center. To the extent reasonably feasible, the space shall be protected from the elements and be free of water leaks. 6. FORCE MAJEURE. Any delay in the performance by the Artist shall be excused if such delay is caused by act of the City or DFA, their agents, contractors, employees, or by acts of god, accident, war, war-like operations, civil commotion, riots, labor disputes, sabotage, governmental acts, regulations or controls, fire or other casualty. Failure to fulfill contract obligations due to conditions beyond either party's reasonable control will not be considered a breach of contract, provided those obligations affected shall be suspended only for the duration of such conditions. During the existence of any such conditions, both parties shall make reasonable efforts to protect each other's property, equipment, and inventory. 7. RISK OF LOSS. The risk of loss or damage to the Work shall be borne by the Artist until the Work has been completed and installed, and the Artist shall take such measures as are necessary to insure the Work for the benefit against loss or damage until final acceptance and the City, which shall not exceed thirty final completion. of DFA and City of the Work by DFA (30) days after 8. INSURANCE. The Artist agrees to procure at Artist's expense and to maintain through fabrication, transportation, installation, and transfer of ownership title of the Work, insurance, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work by the Artist, Smyth, or their agents, employees, representatives, or subcontractors. 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 offices form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage ("occurrence form CG 0001). 2) Insurance Services Office for~ number CA 0001 (Ed. 1/78) covering Automobile Liability, code 1 ."any auto" and endorsement CA 0025. Minimum Limits of Insurance. Artist shall (b) 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: $1,000,000 combined single limit per accident for bodily injury and property damage. (c) Deductibles and Self-Insured deductibles or self-insured retentions Retentions. Any in excess of $5,000.00 must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions in excess of $5,000.00 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 $5,000.00. (d) Other Insurance Provisions. contain, or be endorsed to contain the provisions: 1. Workers' Compensation and Employers expenses in excess of The policies are to following Liability -10- (e) placed Coverage (on site subcontractors only). The insurer shall agree to waive all rights of subrogation against the city, DFA, their officers, officials, employees and volunteers for losses arising from work performed by the Artist for the City. 2. All Coverages. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, cancelled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the city. Insurances under 8(a) and (b) shall be evidenced by certificates provided within ten (10) days of the notice to proceed. Insurances under 8(d) (1) shall be provided ten (10) days prior to shipment of the artwork. Acceptability of Insurers. Insurance is to be with insurers with a Bests' rating of no less than A:VII. (f) Verification of Coveraqe. Artist shall furnish city and DFA with certificates of insurance and with original endorsements effecting coverage required by this clause. The certificates and endorsements for each -11- insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be received and approved by the city and DFA before work commences. The city and DFA reserve the right to require complete, certified copies of all required insurance policies, at any time. (g) Subcontractors. All coverages for subcontractors working on site of the civic Center shall be subject to all of the requirements stated herein. Artist shall assure that all subcontractors working on site at the Civic Center shall furnish separate certificates and endorsements and name the City and DFA as additional insureds. All coverages for subcontractors shall be subject to all of the requirements stated herein. (h) Upon acceptance and transfer of title to the City, the City shall become responsible for such insurance as City may deem necessary. 9. RIGHTS OF THE PARTIES. A. DFA and city shall have the right tQ inspect the Work at the Artist's studio during the fabrication of the Work at dates and times mutually agreed upon between the parties, during regular business hours and at reasonable intervals. B. The Artist and Smyth retain all rights under the Copyright Act of 1976 and all other rights in and to the Work, except ownership and possession and except as such rights are -12- limited by this paragraph. 'The Work shall be copyrighted in the name of Smyth. Smyth and the Artist grant to DFA and City and their assigns an irrevocable right and license to make two-dimensional reproductions of the Work for non-commercial purposes including, but not limited to: (i) use in advertising, brochures, media publicity and catalogs or other similar publications; (ii) use in promotional materials; (iii) reproductions for use in non-profit fund raising activities but in such uses, the Artist shall have the right of aesthetic approval of the image, which approval shall not be unreasonably withheld; provided that these rights are exercised in a tasteful and professional manner. Where the Artist and Smyth exercise a right of approval, such approval shall be deemed to have been given if the City receives no response after 21 days written notice. C. DFA and City credit in any publication, shall use their best efforts to give a substantially in the following form: "(c) Ned Smyth, (date of installation)" The Artist and Smyth shall use their best efforts to give a credit reading substantially "an original work by Ned Smyth commissioned by the Dublin Fine Arts Foundation for the Dublin Civic Center, Dublin, California" in any publication or public control of any two-dimensional reproductions D. city agrees to place at DFA expense the Work artist who showing under their of the Work. a small plaque near which describes the Work and identifies Smyth as the created the Work. -13- E. DFA and city agree that they will not intentionally damage, alter, relocate, modify or change the Work in any way and will take all reasonable precaution in order that it not be damaged, altered or changed by anyone in any manner. In the event that the Work is damaged, altered, modified, changed or relocated or otherwise in need of restoration, DFA and City will make every effort to notify the Artist and Smyth. DFA and city agree to make every effort to arrange with the Artist for the restoration and to request the Artist's supervision of relocation of the Work. The parties acknowledge that the Work is a site-specific work and in exhibited or lent to others to without the prior written consent no event may the Work be exhibit separate from the Site of the Artist which consent shall be based upon the opinion of Smyth, in his sole discretion, as to whether the Work can exist as a work of art by him in the proposed new location. Should it be decided the Work is to be sold, the Artist will have the first right of refusal to repurchase the Work upon the same terms as offered to others. F. If, for any reason, city ever intends to destroy the Work, it shall give written notice to the Artist and Smyth of its intention and shall give them ninety (90) days to recover the Work, at their sole cost. Within thirty (30) days after receipt of the notice, the Artist and/or Smyth shall notify City whether or not they, or either of them, intend to recover the Work. If notice from either the Artist or Smyth within said thirty (30) day period, they shall be deemed to have waived -14- their right to recover the Work and city may proceed to destroy it. Upon recovery of the Work by the Artist or Smyth, title shall revert to the Artist or to Smyth, as they may determine. G. The Artist shall retain the right to claim authorship of the Work. In the event that any part of the Work is materially damaged or altered in any manner, neither DFA nor City shall continue to represent the Work to be the work of Smyth without the written consent of Smyth or the Artist. 10. F~AINTENANCE. A. The Artist will provide complete information on appropriate care and maintenance of the Work, including specifications on any surface finishes and expected application and any other information pertinent to care and maintenance of the Work. The Artist will frequency of the proper also provide information on interior structure and all fabrication methods and materials pertinent to the possibility of later repair or restoration. B. The City will be responsible for the maintenance of the Work, and agrees to take all against damage or destruction. C. During the lifetime reasonable precautions to protect of Smyth and to the extent practicable, City shall notify the Artist or Smyth promptly in the event of the need for any major maintenance or restoration services, and agree to give the Artist or Smyth a reasonable opportunity either to perform such work or to supervise or consult in its performance, for reasonable compensation. If the -15- Artist chooses not to do this and refuses to approve repair and restoration by anyone other than himself or his designated representative, city, may proceed with the work and the Artist will have the right to have his name removed from the Work. D. The Artist and Smyth agree to give both written and verbal advice, during Smyth's lifetime, at no charge, as to how to deal with any maintenance or restoration problems that may arise with respect to the Work. E. After the third year following installation, the Artist shall be reasonably compensated by the city for any maintenance or restoration services it or Smyth may render at DFA or City's request. 1t. OWNERSHIP. of the Artist until Title of the Work will remain in possession the Work has been installed and accepted in writing by DFA and City ("final acceptance") and the Artist has been paid in full. Title will then transfer to DFA, which will immediately in turn transfer title to City. In the event of termination of this Agreement pursuant to Subparagraph 13(A) (subject to Artist's compliance with the provisions of said paragraph) or Subparagraph 13(B), the Artist will retain all rights of ownership in the Work and will have the sole right to complete, exhibit and sell the Work and any preliminary designs for it. Notwithstanding anything to the contrary herein, the Artist will retain all right of ownership and will have returned to him the preliminary design, all incidental works made in creation of the Work and all copies and reproductions thereof and Work itself. 12. CITY ASSUMPTION OF RIGHTS AND OBLIGATIONS. transfer by DFA of ownership of title of the Work to City, of the Upon City shall assume all rights and obligations of DFA as set forth in this Agreement, excepting any obligations whatsoever related to the funding of or payment for the work or any claims, suits, costs, damages or liabilities of any kind whatsoever associated with the funding or payment of the work. 13. TERMINATION. This agreement may be terminated under the following circumstances: A. If the Artist fails to commence the installation of the Work on the installation date or to complete the installation within a reasonable time thereafter (not to exceed thirty (30) days), and such delay or failure to complete is not due to causes excusable by the terms of this agreement, DFA may send written notice of default to the Artist setting forth a stated time in which to cure, which time shall not be less than thirty (30) days, and if the Artist fails to cure and such failure is not excusable by the terms of this Agreement, then DFA may declare ~ this Agreement terminated and shall have the right to recover, back all monies paid to the Artist hereunder. B. The Artist will have the right to terminate this Agreement if, pursuant to Paragraph 3, DFA is more than sixty (60) days late in making any payment. C. If the Artist is unable to complete the Work or to -17- commence the installation on the installation date because of the illness or disability of Smyth or because of events beyond the control of the Artist or Smyth, as provided herein, the time to complete the Work and its installation shall be extended by the length of such interruption or interruptions, provided that in the aggregate they do not delay the installation more than six (6) months. In the event that interruption or interruptions delay the installation more than six (6) months, or if Smyth dies installation has been completed, then the following shall apply: l) have been date for any such date for before the provisions If the sphere has been fabricated and the mosaics in the studio, installed at the whom Smyth has substantially or fully completed the parties agree that the Work shall be site under the supervision of STEVEN MIOTTO, designated for this purpose. Completion of the Work by him shall be carried out in accordance with the terms of this Agreement. 2) If the mosaic work has not been substantially completed, and if DFA agrees, the Work shall be completed by STEVEN MIOTTO and the project shall be completed in accordance with the terms of this Agreement. 3) If the parties cannot agree and the Work has not been substantially completed, then all matters shall be submitted to binding arbitration as provided in Article 17 below. The arbiter shall rule upon the method of -18- completion, compensation and title to the Work. 14. APPLICABLE LAW. This Agreement constitutes the entire understanding between the parties with respect to the subject matter herein and no modification or amendment of any of its provisions shall be valid unless in writing and signed by all parties. This Agreement is personal in nature and may not be assigned by the Artist. This contract shall be governed by the laws of the State of California. 15. NOTICE. All notices herein required shall be in writing, by certified mail, return receipt requested, and shall be served on the parties as follows: To DFA at: 20211 Patio Drive, suite 215 Castro Valley, CA 94546 To city at: City Manager's Office 100 civic Plaza, Dublin, CA 94568 To the Artist or to Smyth at 14 Harrison Street, New York, New York 10013; with a copy to their attorney, Jerald Ordover, at 138 Sullivan Street, New York, New York 10012. Copies of all notice sent by Artist, the City or DFA shall also be sent to Shelby Van Meter, Art Advisory Services, P.O. Box 2132, Sausalito, CA 94966. Any of the above addresses may be changed by notice sent to the other party as herein provided. 16. BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of the heirs, executors, and administrators, successors and assigns of the parties. -19- 17. ARBITRATION. Ail disputes arising out of this Agreement will be submitted to final and binding arbitration. The arbitrator will be selected in accordance with the rules of the Arts Arbitration and Mediation Services, a program of California Lawyers for the Arts. If such service is not available, any disputes will be submitted to arbitration in accordance with the rules of the American Arbitration Association (Association). If the parties can not agree on an arbitrator within 21 days, then an arbitrator shall be promptly appointed by the Association. The costs of arbitration shall be borne equally by the parties. IN WITNESS WHEREOF, the parties hereto have set their hands and seals to this Agreement on the date first written. THE DUBLIN FINE ARTS FOUNDATION THE CITY OF DUBLIN By: By: Ronald C. Nahas, President Paul C. Moffatt, Mayor ATTEST: By: City Clerk E.L. SMYTH, INC. By: NED SMYTH, President I hereby join in and agree to be bound by the provisions of this Agreement as they apply to me individually. 12/5/89 REV. 12/5/89 NED SMYTH -20-