HomeMy WebLinkAbout4.04 Wallis Ranch Public Art Installationor
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/ii � 111
DATE: May 3, 2016
TO:
FROM:
SUBJECT
STAFF REPORT
CITY COUNCIL
Honorable Mayor and City Councilmembers
CITY CLERK
File #600 -30
Christopher L. Foss, City Manager "
Public Art Installation and Maintenance Agreement with Development Solutions
WR, LLC (Wallis Ranch)
Prepared by Tegan McLane, Cultural Arts and Heritage Manager
EXECUTIVE SUMMARY:
The City Council will consider the approval of a Public Art Installation and Maintenance
Agreement with Development Solutions WR, LLC as required by the City of Dublin's Public Art
Ordinance. The Agreement outlines the Developer's responsibilities to maintain the artwork in a
safe and attractive manner and allows for the Developer to post a bond in relation to the
installation of a sculpture piece slated for the future community park within Wallis Ranch.
FINANCIAL IMPACT:
None.
RECOMMENDATION:
Staff recommends that the City Council adopt the Resolution Approving a Public Art Installation
and Maintenance Agreement with Development Solutions WR, LLC, for public art installed
within its Wallis Ranch development.
"Reviewed By
Assistant City Manager
DESCRIPTION:
Under the City of Dublin's Public Art Ordinance (Ordinance No. 14 -06, 8.58.070 -D), a Developer
is required to "execute an agreement between the City and the developer, prior to first
occupancy of the first structure in the project, which sets forth the ownership, maintenance
responsibilities, and insurance coverage for the public art project."
On October 12, 2015, City Council approved the proposed public art for the Wallis Ranch
housing development. Accordingly, a Public Art Maintenance Agreement between the City of
Dublin and the property owner and manager, Development Solutions WR, LLC ( "Developer ")
Page 1 of 2 ITEM NO. 4.4
has been drafted (Attachment 1), spelling out the Developer's responsibility as the owner of the
artwork to maintain for the public's enjoyment and safety.
Under the agreement, the Developer will install three of the four proposed public artworks prior
to first occupancy of the first home in the development. Fabrication is complete on the City
Council- approved gates, benches and artistic screens designed by Berkeley artist Eric Powell.
Those elements will be installed in the coming weeks.
The fourth and largest public art element, a sculpture titled "The Globe," was approved by the
City Council in October 2015 and was anticipated to be installed at the Developer's expense in
the adjacent community park at Wallis Ranch. However, seismic engineering challenges and an
art location change have prompted the artist to request additional time to design a replacement
sculpture that is more site - specific to the Wallis Ranch Community Park area and easier to
engineer.
This Public Art Maintenance Agreement acknowledges that any new artwork and new location
will need to be reviewed by the Heritage and Cultural Arts Commission and approved by the
City Council. In light of the design delay beyond the Developer's control, the Agreement will
allow the Developer to obtain occupancy permits prior to full art installation, but will require the
Developer to post a bond with the City for the value of the public artwork yet to be installed.
Upon approval, fabrication and installation of the final sculpture, the bond will be returned to the
Developer.
Collecting a temporary bond until satisfactory installation of required public art is a common
solution used by cities with public art ordinances to avoid delaying an entire project solely
because a public art requirement is not complete. Other cities that allow developers to bond for
uncompleted public art include Walnut Creek, Palo Alto and Sunnyvale.
NOTICING REQUIREMENTS /PUBLIC OUTREACH:
None.
ATTACHMENTS: 1. Resolution Approving Public Art Installation and Maintenance
Agreement with Development Solutions WR, LLC
2. Exhibit A to the Resolution - Public Art Installation and Maintenance
Agreement
Page 2 of 2
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING A PUBLIC ART INSTALLATION AND MAINTENANCE AGREEMENT
WITH DEVELOPMENT SOLUTIONS WR, LLC,
FOR PUBLIC ART AT THE WALLIS RANCH DEVELOPMENT
WHEREAS, Development Solutions WR, LLC, is the successor -in- interest to Trumark
Homes LLC ( "Developer "); and
WHEREAS, Developer is required under Dublin's Public Art Ordinance to install Council -
approved public art with its Wallis Ranch residential development and enter into a Public Art
Maintenance Agreement with the City of Dublin prior to issuance of the first occupancy permit;
and
WHEREAS, the City Council has approved Developer's proposed public artwork by
artist Eric Powell; and
WHEREAS, the Developer has entered into a contract with artist Eric Powell to complete
the approved artwork; and
WHEREAS, artist Eric Powell has completed fabrication of a substantial portion of the
approved art; and
WHEREAS, Developer is prepared to install the completed artwork as required; and
WHEREAS, one uncompleted piece of art remains, which will need to be redesigned and
resubmitted to the City for City Council approval; and
WHEREAS, Developer is prepared to post a bond until the one remaining piece of art
can be approved by City Council and installed.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
approve the Agreement with Development Solutions WR, LLC, attached hereto as Exhibit A
and authorizes the City Manager to execute the Agreement.
PASSED, APPROVED AND ADOPTED this 3rd day of May, 2016.
AYES:
NOES:
ABSENT:
- 1 - ATTACHMENT 1
ATTEST:
City Clerk
-2-
Mayor
ATTACHMENT 1
PUBLIC ART INSTALLATION AND MAINTENANCE AGREEMENT
This PUBLIC ART INSTALLATION AND MAINTENANCE AGREEMENT
( "Agreement ") is dated as of May 3, 2016 ( "Effective Date "), and is entered into between the
CITY OF DUBLIN, a California municipal corporation ( "City "), and DEVELOPMENT
SOLUTIONS WR, LLC, a Delaware limited liability company ( "Developer "). City and
Developer may be referred to individually as a "Party" or collectively as the "Parties." City and
Developer enter into this Agreement with reference to the following recitals of fact (each, a
"Recital "):
RECITALS
A. Developer is the master developer of property in the City of Dublin ( "City ")
generally located on the west side of Tassajara Road, south of the County line, and known as
Wallis Ranch ( "Property "). Developer started selling neighborhoods identified within the
Property to merchant builders in October 2015 to develop up to 806 dwellings units on the
Property ( "Project ").
B. On May 20, 2014, the City Council approved Resolution No. 68 --14, which,
among other things, approved a Site Development Review permit (the "SDR ") and Master
Vesting Tentative Map No. 7515 (the "Map ") for the Project. SDR condition of approval
number 16 (the "Condition ") requires Developer to acquire and install a public art project in
accordance with Chapter 8.58 of the City Municipal Code valued at a ininimum of
$1,517,094.31, to comply with the Project's public art compliance report submitted by the
Developer and on file with the City, and to, prior to first occupancy, (a) secure completion of the
public art project in a manner deemed satisfactory to the City and (b) execute an agreement
between the City and Developer that sets forth the ownership, maintenance responsibilities and
insurance coverage for the public art project,
C. Map conditions of approval numbers 41 and 42 obligate Developer to deed
Parcels 16 and 21 to City by separate document for use as a community park ( "Parkland "). The
City will not accept the Parkland until the sites are rough graded including erosion control
measures, and all associated improvements as required by the SDR or Map conditions are
completed as generally shown on Tentative Map 7515 to the satisfaction of the City Engineer
and Parks & Community Services Director.
D. Developer entered into a Public Art Agreement with Eric Powell, a sole proprietor
( "Artist "), on or around March 18, 2015, as amended by a First Amendment and Second
Amendment on or around October 1, 2015 and October 8, 2015, respectively (as amended, and
as it may be subsequently amended, "Artist Agreement "). Under the Artist Agreement, the
Artist agreed to design, fabricate and install public art on the Property. The Artist Agreement
contains maintenance provisions, warranties, standards and releases. A copy of the Artist
Agreement is attached hereto and incorporated herein by reference as "Exhibit A."
E. On September 10, 2015, the Heritage and Cultural Arts Commission reviewed the
proposed public art project proposed by the Developer pursuant to the Artist Agreement ( "Public
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Art ") and recommended approval of the Public Art to the City Council. The Public Art consists
of the following: (1) gates; (2) panels at the Anton School; (3) benches along the trail; and (4) a
flee standing sculpture (the "Sculpture "), in the locations depicted in "Exhibit B," which is
attached hereto and incorporated herein by reference. The Public All was approved by Council
on October 20, 2015. The gates, panels, and benches will be installed on portions of the Property
owned by Developer, that will be transferred to a homeowners' association formed for the
Project. The Sculpture will be installed on portions of the Property owned by Developer, that
will be transferred to City.
F. The original plans for the Sculpture, as presented to the City Council on October
20, 2015, are being reviewed to ensure engineering feasibility and seismic durability. Parties
intend to install Sculpture as approved, or as modified as permitted by Section 1.6 of this
Agreement.
G. The Parties desire to enter into this Agreement to memorialize the City's approval
of the Public Art and the means by which Developer shall fully satisfy the Condition and its
public art obligation under Chapter 8.58 of the Dublin Municipal Code.
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION AND THE
PROMISES AND COVENANT'S OF CITY AND DEVELOPER SET FORTH IN THIS
AGREEMENT, CITY AND DEVELOPER AGREE, AS FOLLOWS:
TERMS AND CONDITIONS
1. PUBLIC ART INSTALLATION, OWNERSHIP AND MAINTENANCE
1.1 Installation and City Manap-er Determination.
1.1.1 Installation of Gates, Panels and Benches. Developer shall cause the
Public Art (other than the Sculpture) to be installed prior to July 25, 2016 at the locations set
forth on "Exhibit B." Within fifteen (15) calendar days of notice of the installation, the City
Manager, or his designee, shall determine if the Public Art or a portion of the Public Art (as
applicable) has been completed and installed in a satisfactory manner, which determination shall
not be unreasonably withheld, conditioned or delayed and shall be made if the Public Art or
portion of the Public Art (as applicable) is in substantial compliance with "Exhibit B." If such
determination cannot be made, the City Manager shall provide written notice to Garrett Hinds
(ghinds @trumarkeo.com) specifying the corrective work needed for compliance within a five (5)
day time period. In the event that corrective work is required to bring the Public Art or portion
of the Public Art (as applicable) into compliance, Developer will notify the City upon
completion of the corrective work, and the City Manager will again be permitted fifteen (15)
days to inspect the work as provided in this paragraph. If written notice of the City Manager's
approval or corrective work needed is not timely provided to Garrett Hinds
(ghinds�7a trumarkco.com), the Public Art or portion of the Public Art (as applicable) shall be
deemed approved and completed to the City Manager's satisfaction, and certificates of
occupancy shall not be withheld for failure to satisfy the Condition.
1.1.2 Installation of Sculpture. The Sculpture shall be installed prior to August
25, 2016. Installation of the Sculpture shall be accompanied by the improvements depicted on
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"Exhibit C." Should it be necessary to alter the approved design of Sculpture or redesign
Sculpture due to engineering or seismic concerns, and the August 25, 2016 deadline cannot be
met, Developer shall provide the City with security as set forth in Section 1.12.
1.2 Security.
1.2.1 Gates, Panels and Benches. City may withhold Project certificates of
occupancy, including but not limited to the first certificate of occupancy for the Project, until
such time as Developer has satisfied the requirements of Section 1.1.1.
1.2.2 Sculpture. If fabrication and installation of Sculpture will not take place
on or before August 25, 2016, Developer shall furnish City with the following security in a form
satisfactory to the City Attorney for the fabrication and installation of Sculpture.
(a) Faithful Performance. Either a cash deposit, a corporate surety
bond issued by a company duly and legally licensed to conduct a general surety business in the
State of California, or an instrument of credit equivalent to one hundred percent (100 %) of the
estimate set forth in "Exhibit D" and sufficient to assure City that the Sculpture will be
satisfactorily fabricated and installed.
(b) Labor and Materials. Either a cash deposit, a corporate surety
bond issued by a company duly and legally licensed to conduct a general surety business in the
State of California, or an instrument of credit equivalent to one - hundred percent (100 %) of the
estimate set forth in "Exhibit D" and sufficient to assure City that persons furnishing labor,
materials, or equipment shall be paid therefore.
(c) City shall be the sole indemnitee named on any security required
by this Agreement.
(d) Within fifteen (15) calendar days of notice of the installation, the
City Manager, or his designee, shall determine if the Sculpture has been completed and installed
in a satisfactory manner, which determination shall not be unreasonably withheld, conditioned or
delayed and shall be made if the Sculpture is in substantial compliance with "Exhibit B" or with
the alternate Sculpture design (as set forth in Section 1.6), as applicable. The security set forth in
this Section 1.2.2 shall be released upon such determination. If such determination cannot be
made, the City Manager shall provide written notice to Garrett Hinds (ghinds@a trumarkeo.com)
specifying the corrective work needed for compliance within a five (5) day thne period. In the
event that corrective work is required to bring the Sculpture into compliance, Developer will
notify the City upon completion of the corrective work, and the City Manager will again be
permitted fifteen (15) days to inspect the work as provided in this paragraph. If written notice of
the City Manager's approval or corrective work needed is not timely provided to Garrett Hinds
(ghinds ct trumarkco.com), the Sculpture shall be deemed approved and completed to the City
Manager's satisfaction, and the security set forth in this Section 1.2.2 shall be released.
1.3 No Public Art Easement Required. Developer shall have no obligation to provide
City a public art easement and an access easement for the Public Art as set forth in Section
&58.050(D) of the City Municipal Code, given that the gates, benches and panels will be
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publically accessible, and the Sculpture will be installed in a to -be -City -owned park over which
the City presently has an offer of dedication.
1.4 Ownership and Developer's Maintenance. Following the City Manager's
determination that the Public Art has been satisfactorily completed and installed pursuant to
Section 1.1 above, Developer (or the subsequent owner, as applicable) shall accept the Public Art
from the Artist. Thereafter, Developer (or the subsequent owner, as applicable) shall own the
Public Art and shall maintain the Public Art, at its sole cost and expense, in good repair and
condition (reasonable wear and tear excepted), and in accordance with the general maintenance
plan prepared by the Artist under the Artist Agreement. If the Public Art suffers deterioration due
to any cause other than Developer's (or the subsequent owner, as applicable) failure to maintain
the Art, Developer (or the subsequent owner, as applicable) and City shall meet and confer in
good faith to determine whether to replace any portion of the Public Art or translate any
component into new media, or whether to restore the Public Art.
1.4.1 City's Acceptance of Parkland. Upon acceptance of the Parkland, City
will acquire ownership, maintenance and replacement responsibilities for the Sculpture, at which
time all Developer's (or the subsequent owner, as applicable) rights and responsibilities under
the Artist Agreement as related to the Sculpture only, shall be assigned to City in the form of
assignment attached hereto as "Exhibit E," and Developer's responsibilities as related to the
Sculpture only under this Agreement shall terminate.
1.5 City's Maintenance Option. In the event that Developer (or the subsequent
owner, as applicable) fails to maintain. the Public Art in accordance with this Agreement, City
shall provide written notice of such condition. In the event that Developer (or the subsequent
owner, as applicable) fails to cure or commence to cure the condition within thirty (30) days
following receipt of such notice, the City shall have the right, but not the obligation, to perform
all acts necessary to cure such condition (or to pursue such other remedy available to the City),
including without limitation the right to access the Public Art, and to receive from Developer (or
the subsequent owner, as applicable) the City's costs for such action.
1.6 Modifications; Relocation. Developer intends to display the Public Art as
originally created by Artist at the locations set forth on "Exhibit B." Notwithstanding the
foregoing, Developer, with approval of the City Manager, may make minor modifications to the
Sculpture.
If the Sculpture's design is significantly altered to ensure structural and/or seismic
integrity, the alternate structure must be approved by City Council. Developer shall provide City
with an updated design for City staff to present to City Council for approval. If the City Council
approves a modified or alternate sculpture, the City Manager shall be authorized to amend
Section 1, 1.2 of this Agreement without further approval by City Council,
Developer may not relocate the Public Art without the consent of the Director of Parks
and Community Services, which shall not be unreasonably withheld, conditioned or delayed.
1.7 Visual Barriers. Developer agree that no structures or visual barriers of any kind
that impair or impede the public's ability to view the Public Art shall be constructed or
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maintained on or adjacent to the Public Art, nor shall the Parties do anything that shall prevent,
impair, or discourage the public's ability to view the Public Art.
1.8 Insurance. Developer and Artist are required to secure and maintain insurance
during the fabrication and installation phases of the Public Art as set forth further in the Artist
Agreement. Developer shall provide City with verification of the required insurance under the
Artist Agreement. In addition, Developer shall obtain and maintain in effect a combined single
limit policy of liability insurance not less than one million dollars ($1,000,000) covering the
Public Art placed with insurers with a Bests' rating of no less than A:VII and shall name the City
as an additional insured on such policy. An endorsement must state that coverage is primary
insurance with respect to the City and its officers, officials, employees and volunteers, and that
no insurance or self - insurance maintained by the City shall be called upon to contribute to a loss
under the coverage. Any failure of Developer to comply with reporting provisions of the policy
shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
Developer shall notify City within 14 days of notification from Developer's insurer if such
coverage is suspended, voided or reduced in coverage or in limits.
1.9 Satisfaction of the Condition. City agrees that compliance with this Agreement
shall fully satisfy the Condition. Provided Developer is in substantial compliance with this
Agreement and has otherwise fulfilled any non - Public Art - related requirements, the City may not
withhold issuance of Project building permits and/or certificates of occupancy, including but not
limited to the first certificate of occupancy for the Project, based on the Condition.
2. GENERAL PROVISIONS
2.1 Incorporation of Recitals. The Recitals set forth above are true and correct and
incorporated into this Agreement by reference.
2.2 Notices, Demands and Communications Between the Parties.
2.2.1 Delivery. Any and all notices submitted by any Party to another Party
pursuant to or as required by this Agreement shall be proper if in writing and dispatched by
messenger for immediate personal delivery, nationally recognized overnight (one business day)
courier (i.e., United Parcel Service, Federal Express, etc.) or by registered or certified United
States mail, postage prepaid, return receipt requested, to the address of the recipient Party, as
designated in this Section. Notices may be sent in the same manner to such other addresses as
the Parties may from time to time designate by notice in accordance with this Section. Notice
shall be deemed received by the addressee, regardless of whether or when any return receipt is
received by the sender or the date set forth on such return receipt, on the day that it is dispatched
by messenger for immediate personal delivery, one business day after delivery to a nationally
recognized overnight carrier or two (2) calendar days after it is placed in the United States mail
in accordance with this Section 2,2.1. Any attorney representing a Party may give any notice on
behalf of such Patty.
2.2.2 Addresses. The notice addresses for the Parties, as of the Effective
Date, are as follows:
To Developer: Development Solutions WR, LLC
5219-11646N 306333.1
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4600 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
Attn: General Counsel
Telephone: (612) 851 -3000
Email: notices @castlelake.com
With a copy to:
Trumark Homes LLC
4185 Blackhawk Plaza Circle, Suite 200
Danville, CA 94506
Attn: Laura O'Brien
Telephone: (925) 309 -2502
Email: lobrien@trumarkeo.com
With a copy to:
Isles Ranch Partners
60 South Sixth Street, Suite 2440
Minneapolis, MN 55402
Attn: Carol Racine
Telephone: (612) 404 -3003
Email: cracine @islesranch.com
With a copy to:
Jackson DeMarco Tidus Peckenpaugh
2030 Main Street, 12t' Floor
Irvine, CA 92614
Attn: Michael L. Tidus, Esq.
Telephone: (949) 752 -8585
Email; mtidus @jdtplaw.com
To Cif City of Dublin
100 Civic Plaza
Dublin, California 94568
Attn: City Manager
Telephone: (925) 833 -6650
Email: city.rnanagcr @dublin.ca.gov
With a copy to:
Meyers Nave
555 12th Street, Suite 1500
Oakland, CA 94607
Attn: John D. Bakker, Esq.
Telephone: (510) 808 -2000
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Email: jbakker@meyersnave.com
2.3 Relationship of Parties. The Parties each intend and agree that City and
Developer are independent contracting entities and do not intend by this Agreement to create any
partnership, joint venture, or similar business arrangement, relationship or association between
them.
2.4 Legal Actions. Either Party may institute legal action, at law or in equity, to
enforce or interpret the rights or obligations of the Parties under this Agreement or recover
damages.
2.5 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this
Agreement, the rights and remedies of the Parties set forth in this Agreement are cumulative and
the exercise by a Party of one or more of such rights or remedies shall not preclude the exercise
by such Party, at the same or different times, of any other rights or remedies for the same default
or the same rights or remedies for any other default by the other Party or Parties.
2.6 Principles of Interpretation. A word, tern or phrase defined in the singular in this
Agreement may be used in the plural, and vice versa, all in accordance with ordinary principles
of English grammar, which shall govern all language in this Agreement, The words "include"
and "including" in this Agreement shall be construed to be followed by the words: "without
limitation." Each collective noun in this Agreement shall be interpreted as if followed by the
words "(or any part of it)," except where the context clearly requires otherwise. Every reference
to any document, including this Agreement, refers to such document, as modified from time to
time (excepting any modification that violates this Agreement), and includes all exhibits,
schedules, addenda and riders to such document. The word "or" in this Agreement includes the
word "and." Every reference to a law, statute, regulation, order, form or similar governmental
requirement refers to each such requirement as amended, modified, renumbered, superseded or
succeeded, from time to time.
2.7 Governing The procedural and substantive laws of California shall govern
the interpretation and enforcement of this Agreement, without application of conflicts or choice
of laws principles, The Parties acknowledge and agree that this Agreement is entered into, is to
be fully performed in and relates to real property located in the County of Alameda, State of
California. All legal actions arising from this Agreement shall be filed in the Superior Court of
California in and for the County of Alameda or in the United States District Court with
jurisdiction in the County.
2.8 No Third -Party Beneficiaries. Nothing in this Agreement, express or implied, is
intended to confer any rights or remedies under or by reason of this Agreement on any person or
entity other than the Parties and their respective permitted successors and assigns, nor is anything
in this Agreement intended to relieve or discharge any obligation of any third person to any Party
or give any third person any right of subrogation or action over or against any Party.
2.9 Time Declared to be of the Essence. As to the performance of any obligation
under this Agreement of which time is a component, the performance of such obligation within
the time specified is of the essence.
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2.10 Legal Costs. in the event that a Party brings an action to enforce this Agreement
or otherwise arising out of this Agreement, the prevailing Party in such action shall be entitled to
recover from the other Party its Legal Costs (which shall be defined to include all reasonable
costs and expenses such Party incurs in any legal proceeding, or other matter for which such
Party is entitled to be reimbursed for its Legal Costs, including reasonable attorneys' fees, court
costs and expenses and consultant and expert witness fees and expenses).
2.11 Entire Agreement, This Agreement integrates all of the terms and conditions
mentioned in this Agreement or incidental to this Agreement, and supersedes all negotiations or
previous - agreements between the Parties with respect to all or any portion of the Public Art.
2.12 Waivers and Amendments. All waivers of the provisions of this Agreement and
all amendments to this Agreement must be in writing and signed by the appropriate authorities of
the Parties. Failure to insist on any one occasion upon strict compliance with any term,
covenant, condition, restriction or agreement contained in this Agreement shall not be deemed a
waiver of such term, covenant, condition, restriction or agreement, nor shall any waiver or
relinquishment of any rights or powers under this Agreement, at any one time or more times, be
deemed a waiver or relinquishment of such right or power at any other time or times.
2,13 Assignment. With the City's written consent, which will not be unreasonably
withheld, conditioned or delayed, Developer may assign the rights, interests and obligations of
Developer arising under this Agreement to a homeowners' association formed for the Project or
to a successor in interest or assignee of Developer at which point Developer shall have no further
liability hereunder. Developer shall notify the City in writing of the assignment at least thirty
(30) calendar days following completion of the assignment.
2.14 Successors and Assigns. All references to the Developer in this Agreement shall
be deemed to refer to and include Development Solutions WR, LLC, a Delaware Limited
Liability Company, and all successors and assigns to Development Solutions WR, LLC, a
Delaware Limited Liability Company.
2.15 Survival of Agreement. All of the provisions of this Agreement shall be
applicable to any dispute between the Parties arising from this Agreement, whether prior to or
following expiration or termination of this Agreement, until any such dispute is finally and
completely resolved between the Parties, either by written settlement, entry of a non - appealable
judgment or expiration of all applicable statutory limitations periods and all terms and conditions
of this Agreement relating to dispute resolution and limitations on damages or remedies shall
survive any expiration or termination of this Agreement.
2.16 Counterparts. This Assignment may be executed in one or more counterparts.
All counterparts so executed shall constitute one agreement, binding on all Parties, even though
all Parties are not signatory to the same counterpart. The Parties agree to accept signed copies of
this Agreement transmitted by electronic facsimile copies as original documents. The Parties
acknowledge that copies of this Assignment may be transmitted by a Party over the Internet and
printed by the recipient and that the printed document may contain different type styles and type
sizes, different pagination and different formatting that the original copy of the Assignment in
the possession of the Party sending the Assignment. The Parties agree that any such copies of
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this Assignment shall be accepted by the Parties as true and correct originals of the Assignment
so long as the actual text of the Assigmment remains the saine. This Agreement constitutes the
entire understanding and Agreement of the Parties regarding the subject matter of this
Agreement.
2.17 Authorization. Each Party hereby warrants that it has the authority and is duly
authorized to execute this Agreement.
IN WITNESS WHEREOF, the Parties have signed this Agreement by and through the
signatures of their respective authorized representative(s) as follow:
CITY:
CITY OF DUBLIN, a California municipal
corporation
By:
Name:
Title: City Manager
ATTEST:
By:
Name:
Title: City Clerk
APPROVED AS TO FORM:
LIN
Name:
Title: City Attorney
DEVELOPER:
DEVELOPMENT SOLUTIONS WR, LLC, a
Delaware limited liability company
By:_
Name:
Title:
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Exhibit A
Artist Agreement
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PUBLIC ART AGREEMENT BETWEEN
DEVELOPMENT SOLUTIONS WR, LLC AND ERIC POWELL
THIS AGREEMENT is rmide by and belAreen DEVELOPMENT SOLUTIONS Wig, L.I.C. a Delaware
limited liability company ( "Trumark ") and EMC POWELL, a sole proprietor ( "Arlist ') as of Feff =, 2015
for the purpmwes and on the leims acid c.ondit[ons sM forth below, "%At :H /`,5 - --W,'` ,
RECITALS
WI-IEREAt7, Trumark is the owner of property located in the City of Dublin gpneraliy located on
the west side o; Tassajara Road, south of the County linn, (kno,Ntn as VYtillis ranch) (APN: g$5 -0004 -005-
05) (`Properly ") and intends to develop up to W6 dwellings units on the Properly ('Proju-t"); and
4! 11FI C=AS, the City conditions of approval for the Project require Trumark to acgUire and Install a
public art project in accordance with Chapter 8.58 of the City Municipal CUde, to cumlfly With a Poblir, Art
Compliance Report, and to, pRior to first occupan,4, (a) secure complelion of the public art project in a
manner deemed satisfactory to the City and (h) axprute in agreement between the City and Trurnark that
sets fort'n the ownership, maintenance responsibilities and insurance coverage for tho public art project.
The public art project is subject to the approval of the City Council: and
WHEREAS, Trumark requires the services of Artist to perform arlislic serkos described in this
Agreement for the Project's public art project, including but not limited to design, fabrication and installation
of the public art project; and
WHEREAS, Arlist is qualified and desires 110 perform the artistic services required by Trumark as set
forth in this Agreement.
NOW, THEREFORE, in consideration of the ntuttral pron'nses contained hriroin, the partles hereto
agree as foi'o +ors:
AGREEMENT
Section 1, SERVICES. Subject to the terms and condil[ons yet forth in this Agreement, Artist shah
provide to Trum2rk the services nei>essary to design, fabricate, provide and Instal[ the a1work ( "Work ")
described in the Scope of Work attached as Exhibjt A at the lime and place, and in tin manner specifier
therein. In the: event of a conllict in or inconsisternGy beiwreen the terms of this Agreement and Exhibil A,
the Agreement shall prevail.
1.1 Term of Services. The I(Nm of this Agreement shall begin on 11he dale first notori above
and shall end on July 1, 2416, and Arlist shall compl0r; the Work described in Exillbit A
prior to that date, as set forth further in the Performance and Payment Sr:hedule described
in Exhibit B, unless the term of the Agreement is otherviye terminated or en tended, as
provided for in this Agreement. The lime provided to Artist to corrlplele tho `Mork required
by this Agreement shall not affect Trumwk's right to lorminate the Agreement, as provided
for in this Agreement.
1,2 Standard of Performance. Artist shall perform the Work required pursuant to this
Agrcr,,mnr~t in the manner and according to the standards obscrved by a competent
practitioner of the profession in v.,hich Artist is engaged in the geographical area iii which
Artist practices its pro- 'esslon. Artist scull prepare all work products required by this
Agrr:ement in ri sutsstar�lial, first -class manner and shall confem-i to thr� standards of quality
normally obsery -d by a person practicing in Artist's profession. All Work shall be subject
to, and performed in accordance with, this Agreement, lire exhibiis allached hereto and
incorporated herein by refererice., and all applicable local, state and federal laws, cotes and
regulations. Artist represents that it is experienced in providing Such Work and has all
permits, qualifications and approvals of whatever nature that are 'rectally required to
perform the Work and that such licenses and approvals shalf be maintained Throughout ihr,
term of this Agreement.
1.3 As,si nment of Personnel, Artist shall assign only competent persorinel to perform Work
pursuant to this Agreernenl. In the event that Trumark, in its sale discretion, at any time
during the tarn of this agreement, desires the reassignment of any such {- rsons, Artist
shrill, immedlately upan receiving notice from Trurnark of such desire of Trumark, reassign
Such person or persons.
1.4 Time. Artist steal! devote suoh tinge to the performance of fiori< pursuant to this
Agreement as may be reasonably ncccssary to rneet the standard of performance
provided in Section 1,2, above and to satisfy Mist's obligations hereunder.
Section 2, SCOPE OF _WORK: Artist shall provide the Work for the Wallis Ranch public. arl project as
more specifically desr.,rihc -A in Exhibits A and 6 of this Agreerrrent.
2.1 Trurnark shall be responsible for prov ding (lie Arlist, without cost, roples of tlesitgns,
drawings, reports, and other rE,- lCxvaW Bala nceded by the Artist to resign and execute the
)Nock,
2.2 The Artist shall, whenever required during [lie term of this Agreement, present to Trurnark in
writing, drawing, or other appropriate rriedia for further teview and approval any significant
changes in the scope, design, roPor, size, rnaterW, utility, support requiremerits, texluie, or
location of the situ or the Work. A significant change is any change that could affect the
future installation, scheduling, site preparation, or maintenance of the TdnrR, or the concept
of the Worn as represented in Fxhibit A.
2.3 Trumark may, at any time, request the Artist in writing to (a) revise porlions of the Work that
he has praviously completed in a satisfactory manner; (b) delete portions of the 'Aron that
the Artist has not yet performed; (c) prrfnrm additional wort: beyond the Scope of Work
provided in Exhibit A; arid, (d) make other changes within the general scope of the Work to
be performed under this Agreement, In the event of such a wi-itterr, request, the Artist may,
but shall not he ohlirgater9 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 writing, spe0ying the agrPedf changes, including, but nol limited to, a
description of services, ridditional buciyel, payment schedule, and timetable. In the evcni that
the parties cannot c,gyeC on terms for the changes, Ar list shall riot be obligated do perforrll
the chancres; however, Trunaark shall t_ie entitled to terminate the Agreement without cause
Pursuant to Article 1? herein.
2.5 No services for which additional vhill be charged shall be providad by the Artist
witiaout tlrcr prior viritien authorization by f rurnark.
Section 3. COMPENSATION, Trumark herchy agrees to pay Artist a sure not to exceed
$1,2.89,530.10 as specified in Exhibit B, notwithstanding any conVary indications that may bn contained in
Artist's proposal, foi 'Alork to ue performed unde:r this Agmement; or subject to aCi Rio nal arlrounIs for any
revision, rpgrrested and change order arpproYed by Irumark as provided for in Section 23 above or
elsewhere in this Agreement. In thr, ovent of e conNict between this Agreement and the payment sche duly,
attached as Exhibit 6, regarding the amount of compensation, the Agreement Shalt prevail. T rurnark shall
pay Artist for services rendered pursuant to this Agreement at the lime and in the minner set forth herein,
The payments specified in Exhlbil t3 shall h,- the only payments from Truniark to Artist for services
reridercd pursuant to this Agreement. Artist shall submit all invoices to Tnarneark in tho manner sNClfled
heroin. Except as specifically autlaorized by Trumark, Artist shill not hill Trumark for dupfica e services
peifotrned by niDre titan one person.
Artist and Trurarark acknowledge and agree that romperisation pal d by Frumarrr, to Artist under this
Agreement is fused upon Artist's rr-stimated costs of providing the Work required hereurldor, inclalrting
salaries arld benefits of ernployees and subcontracturs of Artist. Consequently, the parties turtfter agree
that compensation hereunder is intended to include: than casts of contributions to any pensions and/or
annuities to which Artist and its ornployees, agents, and subcontractors may bo eligible. Trumark therefore
has no responsibility for Stich contrib0ons beyond compi7risation required under this agreement.
3.1 Invoices. Artist shall submit invoices for work associated with the completion of a phase
as set forth in Exhibit B, not more often than once a month during the term of this
Agreement. Artist Shall advise i rtirnark in writing when Artist has completed all
obligations, Sery,CLS and deliviratlies under this Agreement for a phase, 2nd I r wall;
shall review the applicable Work for initial acceptance and payr-nerrf. Invoices received
and approvod before the 25,h 1.011 be paid by the 25N of the following month, but invoices
received and approved rafter file 251h ;pill he {paid by the 25M of the second fallowing month.
Invoices sh,-JI contain the tollowling Infoimallon:
Serial identifications of each billable phase; i,e., Bill Flo. i Phase I for the first
invoice, etc.,
The beginning and ending dates of the /billing perioc;
A fast; summary containing the original contract amount, the amount of prior
billings, the total due Ihis period, the balance available under the "agreement, (tae
Artist's signature.
3,2 Total P vmant. Traarnark shall pay for the Woilk to be rerlctered by Artist pursuant to this
Agreement. Trumark shall not pay any additional sum for any expense or cost whatscever
incurred by Artist in rendering services pursuant to this Agreement, Trurnark shall retake
no payment for aily extra, further, or additlonal service pursuant to this Agreenlen1.
In no cavpnt shall Artist submit any invoice for an amount in ;excess of fliex maximuni
amount of comperrsallon provided ahove either for a task or for the entire Agreement,
,rnloss the Agreement is mo- dified p'ior to the submission of srfch an invoice by a proprariy
executed change [order or amendment.
3.3 payrmvLiti, gf,'fq�es, Artist is solely responsible, for the payrnerr= Gf ernployn -lent taxes
incurred under this Argrooment and any similar federal or state taxes.
3.4 Payment .u2nn_ lermingf(on, In the event that Trumark or Artiste terminates this
Agreement, Trumark shall cornpcnsato thr Artist for all outstanding costs and
reimbursable expenses inCUrred for work satisfactorily campleted as of the date (if wriften
notice of termination. Mist shall maintain adequate longs and bmesheets in order to verify
casts lncurred to that date.
3.5 Autt�oj atlon to Perfqtrm Services, The Artist is r)cri - rUthori7ed to perform any services
or incur any costs whatsoever under the, terms of this Agreement until receip$ of
atithari7ation from Trumark.
Section 4. FACILITIES AND G Ulf�I ENT, t =xcept as set for -th herein, Artist shall, at its soli: root
and expense, provide all fa; ifities and equipment that may be necessary to perform the Work required by
this Agreement.
Section 5. RESPONSIFLILITY OF THE ARTIST
5.1 The Artist agreas that an essential element of this Agre?r•ment is the skill and Creativity of
the Artist. The Artist shall not assign the creative or artistic portions of lisle Work to another
party for the production of (lie Work without the written consont of Trumark. F-ai#ure to
c-onftrnl to this provision may bID rruse for fr• rmination of this Agreement, at the scale
option of Trtjmark.
5,2 The Artist shall be responsible for providing services dawbed in ?E- xl-iibil A, including but
not limited to, the quality and timely completion of (he services. As part of the Work, Artist
shall be responsible for designing thn aritvork, as described in Exhibit A, so that it can be
constructed without exceeding the approved overall budget for the artwork of
1,289,'530,16, The Artist shall, without additional compensation, corfect or revise ally
errors, omissions, or other deficiencies in hisdier Wort:.
5.3 Tine Artist shall c orripletn the drsitdn, fabrications and installation of the Work in :substantial
conformity with the attached Exhibit A, Scope of Wo? k,
5.4 The risk of loss or damage to (lie Wojk shall be borne by the Artist until final acceptance
by Trumark. This Artist shall take such measures as are necessary to protect the Work
from loss or cizmage until final acceptance by TrurnaO, including but not limited to storing
the VVofk pending installation. fdoNuithstandiag the foregoing, ones the VVoi k is delivered
to the site as scheduled by the parties, tfle risk of loss or damage shail be Subject to
Truniaik's QCIP insurarrcr, roverage as set forth further in Section 13. Fuftherrnore, upon
scheduled delivery of the Work, should Artist find are adverse sited condition that prevents
insialWion of tho Wort', ns schoduled, Artist shall nosify Trumwk and Twmark shall be
responsible for the safe storage of the Warx pens hie installralion,
section 6. TIMEL PROVISION of SERVICES; DAMAGES FOR DELAYKD FERF0Rr� CE-.'h
parties agree that in the performance of the tennis and requjwments of this Agreement by the Artist that
time is of ll;e essence, Artist shalt dr,vote such time to the performance of serAces pursuant to this
Agruemont as may he reasonably necessary for satisfactory performance of Arlisi's obligation; pursuant to
this Agreenaeni, The Work shall br; completed according to tho, schedule set forth in Exhibit B and all Work
shall be complete, and rea6y for f rurnark's final acceptance, by App 30, 2013.
6.1 Damages for Delayed Performance. Subject to reasonable proof and docume:ntallo i
confirraaing the same submitted by Trumark, Artist shall he liable for any actual damages
resulting, directly or indirectiy, from deiay in perfumianue caused try Artist`s arts of
omissions. including lint not Iimited to Project con sifuctiola or occupancy delays. Darriages
may include, but are null lirnited to doer cost to retroht the Work installation area should
Artist not rneet installation schedule as specified in Ex�aibil_Q. The Artist shall not be liable
to Trumark for damaVes resulting from delays caused by farce, majourn, or by acts or
oinissioris of Trumark, Trumark's architect or Trumard.'s general contractor, other Trumark
or mineral contractor, subcontractors or third party vandalism, except to the Extent Artist
failed reasonably to mitigate such damages.
6.2 Illness, Injury, Death or Incapacity. Should artist die, becorne ill, injured or oiitprwisp,
incapacitated (Colip0vely, "if1copacii ated ") such that Artist is unable to work for any period
not exceeding 30 days (whother consecutive or non - consecutive), any delay arising out of
such incapacity will be allowed by Trurnark whenever it is practicable to do so, considering
the facts and cirrurnstances of Mr, Work, the Project, Trumark's architect and Trumark's
gonorni contractor. Trurnark may require Artist to provide medical certification of any
claimed incapacity. in the event Artist is incapracitaled surh that Artist is unable to work for
a period cxceeding a total of 30 days (whether consecutive or nonconsecutive), Trurnrarl,
may, at its, option, undertake to romplete zind imitall the Work In Artist's absence, so tong
as the final artwork is .9ubstrantiraIly simil<<ar to Ihaat des icgned try Artist. If Trumark undeftakes
try complete the Work, rrumark shall give due consideration to Artist's sU9ge0nns, and
Artist may disclaim aufsorY.Hp of the Work. If Trumark exercises its option to implement.
thin arvivork in Mist's absence, any compensation paid or payable tip Artist shrill hn..
reduced by the costs and expenditures of Trurnark in completion and installation of the
War 'k. In case: of incapacity exceeding 30 days, the tollowing person steak be Aftist`s
representative ;tis4vis Trumark for purposes of this Section 6 Mmcly Provision of
Services; D =amages for Delayed Performance) unless otherwise 6fected in Wriling by the
Artist;
Eric POWE'll
812P Camelia Street
Berkeley, CA 547,10
Section 7. APPROVAL AND FINAL __ACCEPTANCE OF ARTWORK. Pnympnt doea not imply
acceptance of worfc. The granting of any payment by Trumark, or the receipt thereof by Artist, shall ire no
way lr_*sson thc: liability of Artist to repl -ace unsatisfactory work, equipment, or materials, although the
11615 Ii, ",.�F.rG��r clharactei of such work, equipment or materials may not have been apparanf or dotrmted at
the tiny sud—i payment wa ;, made, Maalerial s, oqrilpment, components, or workmanship that dries not
conform to the requirements of this Agreement may be rejected by Trrjrriark ar=d in such case must be
Iep`aced by Artist 7s soon as possib[e.
7.1 i ho grantinq or withholding of arry approval by Trumark shall be delermiried by Trumark in
its sole and reasofiable discretiou, t 1mvever, Trumark shall approve all doflverables it they
malerially conform to Plans or documents previously approved in w6drig by Trumaik and
City. It RImark +r ;ithholds approval of any deliverables or phase, in addition to ether rights
or rela;edies nvailablr: to Trumark under the Agreement or applicable law, Trumark shall
have the right to terminate f }pis Agreement 4- nmediaiel'y anrf shall have no fur -ther
obligations undr;r this Agreement except as otherwise provided herein.
7.2 Final Acceptance. Artist shalf advise Truinark in wr'ilinrg when Artist has completed all
obligations, services and deliverables under this Agreement and all modifications for each
phase and for final completion of the Work. Trumark promptly shall s❑rld a notice of
response identifying in writing any abligation y, services or deliverables that Artist has not
satisfactorily met, any defects in Artist's performance, and the requirement -. for Artist to
cure any such defaull. Artist shall have 20 days from dispatch of the, notice of resp -onse to
lure any defects in Mist's performance ide:ntiflad in Trurnafk's notice of response, The
Work shall not be officially accepted by Trumark Unless the City has also issued a
resolution of final acceplarice. Tfumark shrill rnakc i good faitth effort to promptly request a
deterlrrination as to final acc:cptarire from the City.
Section 8. WARRANTI_EStSTANDARDS
8.1 Unique. Artist v,arranis that the de:'sIgn of the Work is an edition of one, and that neither
Artist nor Arflst's agents will execute or authorize another to execute anotfie- work of the
same or substantially sirnilar image, design, dimensions and materials as the Work. Artist
may create,: works that titilize or incorporate various individual :art elements that comprise,
Ilse kNork, so long as the,. work Utilizing or incorporating such individual elements (? ) door
not consist predorninantly of such elements, (2) is not the :Sarno or substantially similar in
image, design, Cisrriensions and materials as the Work, and (3) is not displayed in an
enviironnient that is the san -le or substantially similar to the environment in which the Work
is to be displayed at Itir; site,
8.2 Warranty of Title. Artist represents anri warrants that Artist is the sole author of the Work
Ind that Artist is the sole ra�aner of a+ry and all copyrights pertaining to tho Work. Artist
further represents ilia', the Work is free and clear of any liens and that flier@ are no
❑u(standing disputes in connection with propQrty rights. lntelle�.tual proparty rights or any
other rights in Vie'Nork or any parts of the Wodf .
8.3 1-he Arttist shall faithfully petform tlic Work required under this Agreement in accardance
,vith standards of care, skill, training, diligence, and judgment provided by highly
competent professionals who perform work of a similar nature to the Work described in this
Agnannient. Artist shall assign only competent personnel to perforce, SP.rvicos pursuant to
this Agreement, In (tie event that Truniark, in its sole discretion, at any lime during the terra
of #his Agreement, desires the removal of any such persons, Misl she ll, immediately Ripon
receiving noticn from Trumark of such desire of Tmark, cause the removal of such
person or persons, unless In the Artist's stale; opinion, the skill nr creativity of Such person
or persons is essential to the creation of the Work.
8,4 Warranty of Workmanship. The (artist shall cuarante-q N-.Jher )Nark to he free from faults
of material and edorliwanship far �ii period of one (1) yp:.,r after installation and final
acceptancc, of all Work by Trurnark. The Artist shaii deliver she Work free and clear of any
liens from any source %P,�iatsoever. The foregoing guarantees shall apply only to the Work
that is entirely that of the Artist or persons responsiNe to the AiIist, as inhtallotl, and shall
not apply to iiiak ria's rir workmanship of projef.ls in wNch the Work of the artist is
integrated or combined, or to rilateriiis purchased, acquired, or installed by a person or
entity not responsible to the Artist.
8.5 WarYanty of Public Safety. Arist and Warrants th,-V tho, Work will not pose a
danger to public health or safety in view of the possibility of misuse, if such misuse is in a
manner ihat was reasonably foreseeable at any time, during the town of this Agreement.
8.6 Warranty of Acceptable Standard of Display and Operation. Artisl represenfs and
warrants that;
8,6.1 Occasional or ininirnal cleaning and repair of the Work and any associated
working parts and /or equipment +dill maintain the Work Mthin an acceptable
standard of public display;
B.6.2 Foreseeable exposure to the elements and general wear and tear will cauSG the
Mork to experience only minor repairahln darnago,.3 and will not cause the Work to
fait bolow an acceptable standard of public display, and
8.6.3 'Ardh general marine cleaning and repair, and within the context of foreseeable
exposure to the elements and general year and tear: Iha Woik will not experionce,
irreparable conditions that do not fall within an acceptable standard of public
display, including mold, rust, fracturing, staining, chippirty, tearing, abrading and
peeling.
8.7 Manufacturer's Warranties. To the exteril the Work incorporator, products covered by a
i7tai�ufacturer's ;j�rrar ty, Artist shall provide copies of such warranties to Trurnark.
8.8 Liens, Artist Shall not suffer or permit any lir,ns of any kind to stand against ;he Property
or the <idjoininrq prnperlies or any part thereof by reason of any worst, labor, servlcvs or
inaterials dome for, or supplied to, or claimed to have been dune for, or supplied to, Artist,
its agents, representatives, contractors, subcontractors, employees, and lic:ensg es. If any
such )[on small at any time be filed against the Proppq or the adjoining properties as a
result of Artist's (or its agents, representatives, contractors, Kftonlractors, nrnploycxm,
and licensees) action oi inaction, Artist shall cause the same to be discharged of record
within thirty (30) clays after the elate of filing the same, by either paymeni, deposit or bond.
if Artist ShAll fail to rEisciiar�e any such lien within such period, than, in addition to any
other r`ylit uE remedy of Trumark, Trumark [nay, but shall not be obligated to, proccure the
discharge of the sanie and rccorr r any amount reasonably paid or dopositad by Trumark
for any of the purposes, ai,d all legal and rather exfzenses of Trumark, including
reasonable counsel fees, in defending any such action or in or about procuring the
dlschargo of such 11en, ,with ail necevsary disbursemcnls in connection lheieviiih.
Section 9. MAIVENANCE OF ARTWORK
9,1 Unless speclfir'Mly provide =d in (his Agreement, Artist shall not be responsible for ongoing
maintenance of the Work.
9.2 Artist shall provide Trumark ;th a goner;�,l ctiairttertance plan for the Work, with a dntailcd
description of futur[a antimpated rfiaintenanCe regUirements; a recommended maintenance
schedtrie; anticipated and required care anr?iar replacemeriYupgiade of any part of the
Work and associated moving Parts or equipment including any staff time involved in
displaying or operating wtwork and the frequency of such staff involverrient, and written
instructions and manufacturer's specificalions for reasonably forasaeahle rm infenance
and preservation activities relating tea the Work.
9.3 The Work shall h o durable, taking into consideration that the installation site may be an
unsecured public or pf€vate spa(ae that may be expused to elements such as wrRalher,
temperature variation, and ArisideraNe movement of pcop)p and c.,quipirient. Artist shall
ensure that all maintenance: requiremeni s will be reasonable it) terms of time and expense.
9.4 Trump rk is not rrnquircci by ftris Agreement to maintain the Work to any particular sianciard.
Trumark may determine to allow the Work to deteriorate its acoordancrj Mh rli¢ ; ^~lark's
temporary life: span, if deemed arapropriate by 'Frumark or if Trumark Iacks sufficient funds
(or required maintenance rindlor conservation. It the Work suffers deterioration, Trumark
shall have, sole discretion to determine whnthr;r to remove the Work from display as a
result of deterioration, wholhor to replace any portion of the WOTk or €ranslate any
component into nilw media, or vvhe'lher to niaintaiin the Work on display rfespile its
deterioratod condition.
9,5 The anticipatcd lift span of tiie fork is no less than teeny years from the date of final
acceptance of all Wort by Trumark. After that time, Trumark in its sole discretion may re-
ovaluatC the Work to deterrine if It retains its identity as a work of art Md, if pact, 'Nli¢ther
to take appropriate action includin,4 the passibility of destro�ying the Work. if Try �rnar'k
determines that, through decay, vandalism or other farces, the Work has lost its integrity to
[he poln11.0ore it should be des(royed, T'romark shall first puffer the Work to Artist tree of
charge and in writing,
Spcf1q( 10. ARTIST'S RIG WTS TRYMARK'S OWNERS 4113 RIGHT'S
10,1 Trumark shall owl) and have the right to, or authorizE� third parties tea, relocate, repair, alter,
restore, modify, or remove, ill ,vhole or part, the Work in Trurnark's sole and absolute
discretion, Truinark shall ma'lke commercially reasonable effoils to contact and confer with
Artist hefrrc any porrnanent Or temporary rploratsnn, repairs, rosicralions, alterations,
modifications, or removal in wholo or Part of the Work. However, Trturriark, and Trumark's
successors and assigns, shall possess full and sole authority and discretion to make, or
authorize third parties to make, any and alt changes, purmeanent or toinporaty ielo,;ations,
alterations, repairs, mstoration, rnodificalians and removal in whole or pact of the kNork,
10,2 With respect to tho Work produced urvler t €cis Agreerttaril, and in ronsideraiion of the
procedures and remedies specified in this Agreement, Artist waives any and all claims,
arising at any time and under any circunrrstances, wjainst Triumark, its dirKtors, officials,
officers, partners, contractor, agents, employees, successors and assigns candor the
fedoral VlsuaI Artists Rights Act (and 113(d)), tfre California A� t Preservation ,pct (Cal. Civil
Code %987 et set.), and any other total, state, fedrral or interntional laws that convey
rights of ihn saute nature as those conveyed under 17 U,C,C. §106A, Cal. Civil Code
§ §987 et seq., or any other type of moral right protecting the integrity of works of art, If ft
Work is incorporated into a building or structure: such that the Work cannot be removed
fsuni the bultding or structure without alteration of the Work, Artist waivers any and all such
claims against any futum owners of the site, and their agents, offices and employees, for
a'teration of the Work.
10.3 if Tnimark alters the Wofk wilhout Artist's con set it in a manner that is prejudicial to Artist's
reputation, Artist retains the right to disclaim authorship of the Work in accordance with
Califom1a Civil Cade §987(4) and 17 U.S.C. §108A (a)�2).
10.4 Except as provided in this Agreement, with respect to third pa�ies who are not directors,
officials, nfficors, partners, employees, agents, contractors, successors and assigns of
Trurrrark, Artist retains Artist's moral rights in the Work, as estr*ishpd in the., Visual Artists
Right; Art (17 U.S.C, § §106A aria 113(4)), the Califon-nla Ar-t Preservation Act (Cal, Civil
Code § 87 and 989), or any other local, state, federal or international moral rights laws
that protect the integrity of works of art. Accordingly, nothing herein shall prevent Artist
from pursuing a clainn for aitora%n of tiro Work against a third party who is not a director,
officer, official, partner, employee, gept, c�rrtractar, successor or assign of Trumar'I:.
Trumark has no abligntion to pursue claims against third parties to rerrredy or prevent
alteration of tthe Work. However, as owner of the Work, T rumark may pursue claims
against third parties for darnages or to restore the 'Norf, If the Wort, has been altered
without f'rurnark',s authorization, In Tnumark's sole and ab5clulws discretion,
Section 11. INTELLECTUAL PROPERTY AND PUBLICITY RIGHTS
11.1 Copyright. Subject to owners hip, usage rights and licenses granted to TfVmark
hereunder, Artist shall retain all 17 U,S,C. §106 copyrights in all original works of
authorship produced under- this Agreement. Artist's copyi icght shall not extend to
predominantly utilltari n aspects of the Mork, such as landscaping eloment s, furnl5l- iings,
or oth r similar objects. If Artist is comprised of two or more individual persons, the
individual persons shall be deemed joint authors of the Work.
11.2 Trumark's Intellectual Property License. Artist grants to Truman;, and to Trumark's
direclors, officials,, officers, partners, employees, agents, contractors, successors and
assiggns, an unlimimd, non - exclusive; and irrevccable license to do the Nflowing with
allu I 1ujuut.
11,2.2 Reproduction and Distribution, Trurnark may make and disiribulr, and authorize
the m king, display and distribution of, photographs and other 2-dimensional
reproductions, Trumark may use such repruductions for any Trurnark - rela[ed
purpose, including advertising, educational and promotional malerials, brochures,
hooks, flyers, postcards, print, broadcast, film, electronic and rnuitimedia publicity,
girls for hencfictors, docunientalion of Cily's Public Arl Colic ction, and catalogues
or similar publicall'an s. Trumark shall ensure that such reproductlnn s are made in
a professional and tasteful manner, In the sole and reeasone,ble judgment of fhe
I rurnark, The 1 uteri ,3c; granted hereunder includes the right to create 2 dimensinnal
reproductions on iterns such as tote -gags, T-shirts, coffee mugs anti similar
merchandise. Nothing hereundur shall lab construed to corislrain Artist from
creating posters, note cards, or other rPprodurtions of the Work dith appropriate
credit to Trumark,
11,3 Third Party Infringement. Trumark is not responsible for anv third party infringement of
Artist's cr1py ight and not responsible for protecting the intellEo`ual property rights of Artist,
11.4 Publicity. Trumark shall have fire right tra usp Artist's narne, likeness, and biographical
inforniafion, in connection with the display or reproduction and distribution of the Work
including r it advertising and promotional malerials regarding Trurnark, Artist may provide
and install a plaque on or near the Artwork containing a credit to the Artist and a copyright
notice sub lantially in the following farm: Copyricght 0 uric Pow(-,I[ 2015. Artist shall be
reasonably available to attend any inauguration or prosente6on cerenionies relafinrg to the
public dediGation of the Work.
11,5 Trademark. In the event Brat Trumark's crse of the Artwork creates trademark, service
mark or trade dress rights in connection with [he Work, Trurnark shall have an exclusive
and irrevocable right ire sucti ti'adenra :k, service mark, or trade dress.
11.6 Resale Royalty, if 1 rurnark yells the Work as a fixture to real property, and if file resrjle
value of the �Nork is not itemia_ad separately ffom the value or tiic rcaI propgly, file parties
agree that the resale p.rice of the Work shall be presumed to 1�e less than the purchase:
price paid by Trurnark under this Agrninent. Thus, Truniark has no obligation to pay
resale royaltle; pursuant to CFalifamia Civil Code §986 or any Other law requiring the
payment of resale royal ?ies. If Trumark sells the Work es an individuaf piece, separate from
or, itemized as part of a real property transaction, Tlurnark shall rmy to Artist a resale
royalty !o the extelit required by law, basal upon the sale prig, of the ArUvork.
respect to th7e Work, and any original works of authorship crealed under Ihis Aurep:,ntenl,
whet ier in whole or in pert, in all media {inciudino, electronic and digital) throughout the
universe:
11 .2.1 Imptcmentation, Use and Display, 7runiark may use and di5play the Work (to
the extern [he Work inolUdes graphic representations or models), To the exlent the
Irtrnrk invdvt's de5inrr Plerflent, that are Incorporated by Trurnark into the design of
the Properiv rigid PT'OjC:Ct, 7runiark may irnplernent suclh alernmits at the Prorar,rty
11.7 If for any reason the proposed design is no', irrrpiemenfc.d, all rights to the proposed
artwork shall ljt� ro(aimF d by the Artist. Trumark shall have no, right tea Implenut :l the
proposed artwork, whethei or not prralected by copyright, ur #oss and until Truer✓ , and tile
Artist enter into a subsequent agreeffient for the irnplemenlatirr)n of the proposed design.
Section 12. OWNERSHIP OF RESULTS AND RISK OF LOSS
12.1 Title Transfer. Extent in the case of early lermination of this Agreement, title to the
Artwork shall transfer frc117 Artist to Tnimark upon Tremark's final accey }tang of the Work.
Title transfer shall br solf- executing upon Trumark's final accc,pfancn of tho Work. Artist
will cooperate in providing to Trumark any title; transfer documents I-n.amark may request or
require during or after the berm of this Agreement.
12.2 Disk of Loss, The; risk of lass or darrlage to the Work shall be borno solely by Artist until
delivery of the lfttk to tt7E� property. Artist shall take steps to protect [he'Plork from loss of-
darnagex until final arc.optancer by Trumark. Trumark shall male a grand faith effort to
inspect the Work w1thin 15 days after completion so that Trumark can approve (he Work in
a timely fashion,
12.3 Ownership of Documents. Conceptual Design, nosign Development Documents,
Construction Docurrrenfs, Ssariples, Mack -ups and all ulher documcnts prepared and
submitted by Artist to 'Trumark pursuant to this Agreerieril shall belong to Trumark, Artist
may retain originals of such docurrlents and iterns and provide copies to TrurMrk.
Section 13. INSLLRANCE_ tEQUIREMENTS. Ai#i sl shall procure and maintain insurance coverage
thattsati,,' the requil ern ents :;et forth an ExWbits G (and the atlachn'lents that follow) allached hereto (tide
"InsUrafice 9Requlrempntsl.
13.1 Certificates. Before Adisl commences any Work at or prepares or delivers Inilerial lru the
Property, Artist shall provide Trumark and Trumark Construction Services, Inc, ( "�lrilrfer'}
with both certificate, of insurance and additional insured endorsements evidencing
covorage and all specifications as set forth in the in urance Requirernenis,
13,2 Failure to Obtain. Should Artist fail to comply ivith the; Insurance Requirements, ear should
Artist fall to iirnely renew the, insurance coverage required under the Insurarire
RLquirt??7 amts, Trumark shall have the right, at Trumark's election, without obligation, (t) to
Obtain such t over age on Artist's bclicilr°, at Artist's expense, from any insurance cart }er
selected by Trurnark in Trtimark's sole tiiscreli€an; or (2) to terminate triis ACdre mient,
Trumark shell have the right to offset th? casts of pr'emliuMS fUr Stich insurance against any
surds payable to Artist under ti* Agreernenl.
13,3 Wrap- lln- Cgyerage. Ruildcr has obtained a project 'wrap -up insurance" or "Owner
Gan #roiled Insurance progran1" covering Builder and its subcontracto(s, andior Trurnark
andlor TrumarYs Builder', expanse. Artist shall comply with all requirements of the third
party "wrap-up insurance' administrators as set forth in the Insurance Requirements. It is
understood raid agremd that for that (cart of Artist's services nrcrrrring rn3 the Propefiy,
provided that Artist complies with all re-rjuiremrnts of the third party 'wrap tip insurance"
administrators as sot forth in the Insurance Requirements, and p,ovlded fur ther INA such
third party "wrap -up insurance" administrators agree to provide such coverage, Artist shall
be insurcd under Truml3rk's Owner Controlled Insurance Program cs)veragc= upon which he
and his named subconiiactorr, shall dr- named additrOrral irtsurer_Is.
Section 14. INDEMNIFICATION AND ARTIST'S RESPONSIBILITIES, Artist shall indemnify, defend
villh coon" ol mutually solected by frurnark and Artist, and held harmless Trumark and its officials, officers,
directors, partners, contraoors, empfoyr: s, agents, and volunteers from and against any amd all losses.
liability, claims, shits, actions, daF-n2yes, and causer; of action arising out of any personal injury, bodily
injury, loss of life, or damage to property, or any vlolafion of Mly fedlafal, state, or municipal law or
ordinance, to the extent caused, in whoke or in part, by thr wiliful misconduct or negligent acts or omissions
of Artisl or ils officials, nfficors, directors, parfnere, contractors, volunteers, ernployees, stibrontrlactors, or
agenf5. The foregoing obligation of Mist shall riot apply when the injury, loss of life, damage to property,
or violation of law arises vkolly from tho ncgljgcr)ce or,.villful misconduct of Trurnark or its officials, officers,
directors, p,- rrtners, coot :actors, employees, agents, or volurit4 vr:,. It is irndcrstoad that the duty of Artist to
indemnify and hold harmless include, the duty tc, dofond as set forth In Section 2775 of [he Cblifornia Civil
C ale. Acceptancp by Trurnirk of insurance certificates and eadoisements requirrd under this Agreement
duos not relieve Artist from liability under this indemnifir..a #ion and hold harmless clause. This
indemnification and hold harmless. clau$r3 shall apply to any damages or GdaimS for daroage�,, o helher or not
such insurance e polir.ics shall have been determined to apply. By execution of this Agreement, Artist
acknoWedges and agreesii.o the pro jsioris of this "ection and that it is a material Oerrient of Consideratiurl,
In the ekrent fhat Artist or any officials, officers, directors, partners, contractors, volunteers, employees,
sub�crjntractors, or agents of Artist providing services sunder this Agreement is deteniiined by a ��ourt of
competent judsrdidinn or the Ualifortiia Public Employees Retirement Systern (PERS) to be eligible for
enrollment in PERS as an employee of City, Artist shall indemnify, defend, and hold harrrrless Trurnark for
the payrnc:nt of any employee andlor employer contributions for PERS benefits can behalf of Artist and its
officials, officer$, directors, partners, contractors, voluntoors, employees, subcontrz,ctors, and agents, as
well as for the payment of any penaltlos and interest on such contributirMns,
Section 15. STATUS OF ARTIST AS INDEPENDENT CONTRACTOR.
13.1 lid endent Contractor. At all time, �}r�rir�q the term of this Agreement, Artist stroll be an
independent contractor and shall riot be an employee of Truinaik. Notwithstanding any
other City, state, x federal policy, rule-, regulation, law, or ordinarice to the contrary, Artist
and any of its nftirials, officers, directors, padners, contractors, voluntccrs, employees,
srrl cai�fra,trarw, and agents providing services under this Agreement shall not qualify for or
become enlltled la, and hereby agree to waive any and all Claims 10, clrly COMPH'nsaljon,
benefit, or any incident of employment by Trurnark and City, including but not limited to
eligibility to erg ;oil in tho Califorma Public Employees Retirement Systern (PERS) as an
employee of City and entitlement to any contribution to bc paid by City for employer
contributions andfu ernp!oyee contributions for PERS benefits,
15.2 f olhing contair+ed in this Agr€>s:mont shall be constrited as limiting the right of artist to
engage: in iii; profession separate and apart from €h is Agreement so long as such activities
do not Merle ro . =rith fhe performance by Artist of his obligations as set forth in this
Agreement,
15.3 Artist No Agent, Excopt as Tiurnark in iy specify in writing, Artist shall lirive no <<uihrari(y,
oxpress or implied, to act on behalf of Frurnark in any capacity whosoever as art agent.
Mist shrill have no authodly, express or implie --d, purf;crrrrit to this Agreericont to lhind
3 ri_irnark to any obligation ;vh8tsoever.
Section 16. LEGAL REQUIREMENTS.
16,1 awerning Law, The laws of the State of California shall govern this Agreement.
16.2 CoipAlianca yNith_ A licable Laws, Artist and any subconiractors shall c onipiy will) all
laws applic;rable to the perfo[manr ., of tho wnrk he.re.un€ er,
16.3 ❑ther Governmental RegtaiaRions, To the extent that this Agreement may be funded by
fiscal assistance from a governmental entity, Artist and any subcontractors shall comply
with all applicable rules aria regulallons to , -)hi(h r rumark is hound by the tOVils of such
fiscal assistarrco program.
16.4 Licenses and Pertnits, Ailist represents and warrants to Tramark that Artist and its
officials, officers, directors, parfne:rs, contractors, volunteers, employees, subccontractors,
and agonts have all licenses, pti rnits, qualifications, and approvals of whalsow5rer nalure
thai are legally re<tulred to prac;fice their respective prcfassions. Artist represents and
marrants tQ 7rumark that Artist and its otficiails, officers, directors, partners, c:onlractor s,
volunteers, employees, subcx nlraclors, and agents shall. at their sole cost and expense,
keep in effect at all limes during the term of this Agreement any licenses, permits, and
approvals that are legally r'equii,ed try practice their respective. professions. In addition to
the foregoing, Artist and any subcontractor& .shall obtain anti mainlain during fire terrra of
this Agreement valid Business Licensos from City,
16.5 Nondiscrimination and Equal OpnortunitV. Artist shall not discriminate, on the basis of
a person's race, reli ton, color, naliorral origin, agr.,, physical or menial :iandioap or
disability, mr:dical con,Ptlon, marital status, sex, or sexual orientation, against any
employee, applicant for employment, subc:ontr�imtor, bider for a subcontract, or participant
in, recipient of, or applicant for any services or programs provided by Artist under this
Agreement, Artist shall comply with all applicable ;edesal, state, and -cal laws, polides,
rules, and raqrairrem ants relatod to orlual opportunity and nondiscrimination in ernployment,
contracting, and the provision of any neivices that are the subjrrt of lhis Agreement,
including but nil limi(ed to the satiyfa ctlrin of any positive obligations sequire+d of Artist
lhn rphy.
Section 17. TERMINATION AND MODIFICATION,
17.1 leernination. Truma.rk may cannel this Agreement at any time and wkhoul cause upon
v.,ritten notitfcation to Artist.
Artist may cancel this Agreement upon thirty (30) clay,' written notic>, to T remark and shall
in%de in such mice the reasons for cancellation.
In the everrt of lermin aflon, Artist shall be entilled to compensation for services perfoifned
to the effective oats of termination; Trumark, however, may condition pay -ment of such
cornpensalion upon Artist dn:Nverinq to Trumark any or ail dorrrrrcnts, photographs,
cow 'iter s>sttvoare, video and audio tapes, and other materials provided to Artist by
Trurmark or prepared by Artist for Trumark in ronor. ion Wth this Agreement.
17.2 Extension. E furnark way, in its sale and exclusive, d'Mmlirm, extend tha end [fate of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall requite a
vHltten amendment to this Agreement, as provided for herein. Artist understands and
agrees that, it Trunoark gmnl& such are exlension, Tiu mark shall hrtvc, no Obligation to
provide Artist wish Compensation beyond the maximum amount provided for III this
Ayr'er:mc:r L Sirnil irly, unless authorized by Trrrrrt:nrk in writing, Trumarl( shall hive no
obligation to reimburse Artist for any otherwi� ;e reimbursable expenses incuaed dudncq the
extension period.
17.3 Amendments. i Ile raariies may air,end this Agreement only by a writing signed by all the
parties.
17,4 Assictnrrient and Subcontracting. Trumark and Artist recognize, and agree that this
Agieement conternplates personal performance by Artist and is based upon a
determination of Artist's un,rgijr personal compotence, experience, and specialized
personal knowledge. Moreover, a substanlial inducerrment to Trumark for eritc ring into this
Agreement was and is the professional reputation and cornpetenoe of AiYist. Artist may
not assign this Agreement or any interest therein without the prior written approval of
Tt umart . Artist shall not sut contrnct any pnrtion of the performance contemp €eted and
provided for herein, otiler than to the subccntraciors noleid in [fie ;proposal, without prior
viilten approval of the C- ontract Acdministrator, Trumark may assign this Agreement, in Its
sale and absolule discrelion, at any lime with t,wittr n notice to Artist, at which point
Tramark shall have no hirther liability hereunder.
17,5 Survival. All Obligations arisirci prior to the termiria lion of tfris Agreement, all ref+aasoq, Al
warrant4es and all piovisions of this Aorc:€ ment ailoratmg liability bettaleen Tfuniek and
Artist shall survive the terrnmation of this Agreement.
17.6 Options upon Breach by Artist. if Artist materially breaches airy of the `ertms of this
Agreement, Truifiark`s rerr7edies shall include, but not be lim, tea, the fnllowincg:
17.6,1 Immediately termirtate the Agreement,
17,6.2 Retain the pars, specifidations, drawings, reports, design dnr oments, and any
other vmrk produrt pre:parcd by Artist pursuant to this Agreement;
17.6,3 Ref ain a different Artist to complete the work desc ibeol in Exhibit A not fin +shed by
Artist; or
17,8,4 Charge Artist the difference hetvieen the cost to Complete the %,,fork described in
Exhibit A lhal is unfinished at Me €inie of breach and the amount that Trumark
would have paid Artist pursuant to Section 2 if Artlst had completed the work,
Section 18. KEEPING AND STATUS OF RECORDS,
18.1 Access to Artwork; inspection of Work and ,Artwork. TRimark shall have the
reasonahle right to, at its sole expense, inspect the Worft, at the f,4ricatiun site during any
phase of the project at any fine. In flee event that all or frr r( of the VJorFkF :s created io a
location other than the Pr�olect site, Trumark shall have the light to inspei t the �4orri at any
phase of the project following 4811OUrs vrritEerr notice from Trumark to ttao Artist, Tho Artist
shall tai responsible for tar; Vatinq rrunlark's prompt access to Artist's property or the
property of the Artist's ubconlradors where tfie �Alork or p <)rtions of the: Wort; ire being
fabricntc� or installed.
18.2 Status Reports. Artist shall submit written reports rei)ardinq the status of the fttk,
including the Ar#t ofk, as trray be reasonably rt:3quested by Trumark, Trurnark shall
determine the forrrrat for th(: content of such rc;ports. The timely submission of all reports is
a ne;r.ess ,)ry and material terra and condition of this Agreerent. The reports, including any
copies, shall be submitiea on recycled paper and printed on doubl€a -sided pagr;s to the
inaxiniurn extent pm;sible,
18.3 Artist Availability, Artist or Artist's auihorized agent shall tars - ivailablo at Artist's sole
expensr:-, for up to 10 visits to Dublin to ensure the proper installation and opeiallon of lhe
Work.
98,4 Records Created as Part of Artist's _Performance. All reports, data, maps, models,
chait5, studies, sulveys. photographs, memoranda, plans, studies, Specifications, records,
files, or any other drjc;urn4ents or materials, in electronic or any other form, that Artist
prepares or obtains pursuant to this Agreement and that relate to thr -' matlars covered
hereunder ai all b,:, thrr prorerk, n€ Trumark. Artist hereby agrees to daliver [hose
docurnents to Yruwark upon cornpletion of a phase: under the Agrc ;emont and fall payment
of Artist for sucah phase, or termination of this Agreement:. It is uriderstoc d and agreed ffrat
the dccumerits and other materials, including but not Pmitr;d to those described above,
preparcd pursuant tea this Agrn,,�rn nt are prepared specifically for Trurnarfc fits successors
Ind assigns) and City and are not necessarily suitable for any f0Aro or othr:r arse.
T roniai'k and Artist agree Thal, until final approval by Trurnm, all cata, plans,
spe6fications, rclaws and other documents are confiden(Jal and will not he released to
third parties, except for City, without prior wrillen consent of both parties.
184 Artist's Books anti Records, Artist sIwlI main lain any and all ledgers, books of account,
invoices, vouchers, cancelod checks, and other records or docurnents evidencing or
relating to charges for services or expenditures and di.sbursenionts charged to TrLIMW€
udder this Agreement for a minimum of three (3) years, or V any longer per od required
by law, from the date of final payment to the Artist In lhis Arareomr:nt
18.6 Inspection and Audit of Records. Any records or do�curnents Mat this Agreerrient
requires Artist to rrlaintain sh2i1 tae rnade available for inspection, audil, and/or copying at
any lime during rccgul,ar business hours, upon oral or written regoest of l rt1rl ark.
Section 19. PAISC L AN oOS PROVISIONS.
19.1 Lt or k s�,t� If a party to lhis Agreernpni brings any action, inchiding an action for
declaratory rn'flnf, to t•anforce or interpret the provision of this Agreement, the prevailing
party shah be entitled to reasonable attorneys' fVes in addition to any other relief to which
that party fnay be cmtitledl. The corn may sot such fees in the sarne aclion or in a
separate notion brought for that purpose.
19.2 Venue, In the event beat eiff ter party brings any action @gainst the other Linder this
Agreement, the parties agree that trial of such a�� on small be vested exclusively in lhe;
state covets of California in the County of Alameda,
19.3 S0verab l ky, If a court of carnpetenl jurisdiction finds or rdhl s that ally provision of this
Agreerent 'IF, inwilid, void, or Imonforcoable, the proviS,dons of this Agreement. not so
idjudgeA shall rel;,�ain in full force and effe- t. Tl"le invalidity in NNIML, or in part of any
provision of this Agreement shall not void or affect the validity of any other provision of this
Agreement.
19,4 No Implied Wei -ver _of._Br_eac .. The waiver of any breach of a specific provisbn of this
Agreement ricrr"s rant Cr.Mfitute a waiver of any other breach of that terra or any other term
of thhis Agreerrient,
19.5 Successors and Assigns The provisions of this Agreement shall inure to the benefit of
and shall appiy to and bind the successor, and assigns of the parties,
19.6 Use-of Kepycled Products, Artist shall prepare and submit all reports, written studies and
other printed material on rccyrled paper to the extent it is available at equal or loss cost
than virgin paper.
193 Conflict of Interest:. Artist may serve other clients, but none whose activifies within the
corporale linrits of City or whose biminess, regl )rdless et location, +,wouid place Artist in a
"conflict of interest," as that term is defined in the Political Reform Act, codified at California
Government Code 81000 el smq.
Artist small not employ any City official in thr ,,,ork parformed pursuant to this Agrecrrreni.
No c)fficc:r or rmploycr� of City shall have any financial interest in this Agreement that
would violate California Guvenrrraent Cade ecjions 1090 of sect.
Artist horeby warrants that it is scot now, nor has it been in tho Previous twelve (12) months,
an employee, agent, appointee, or official of the City. It Artist was an ornployee, agent,
appointee, or official of the City in the previous twOvo rrrnrnths, Artist warrants that it did not
participate in any mariner in the forming of [his Agreenent. Artist understands th al, if this
Argreenttint is mead:- in viol�iVon (A Cove rnr lent Cade 61 OcH et. seq., the crntire At moinr"nt.
is void and Artist ,Mill riot be eniit,'ed to any compensation for services performed pars ±rant
to this Agrerenneni, irtcludirig reimbursement of expenses, and Artist will be required to
reimburse Tr mark for any sums pain to the Artist. Artist €.inderstinds that, in addition to
the foregning, it may be subject to criminal prOsecution for a viol ',alien of Goverment God
§ 1090 and, if applicable, will he disqualifiod from holding public office in the Mate of
California,
19,8 Solicitation. Artist agree, not to solicit business at ariy rneefing, fucu:.-, group, or inlerview
related to this Agreement, either orally or through any written materials.
19.9 Notices. Any wrifinn nolicy, to Artist shall be sent to:
81 2B Carnplla k-,.et
Berkeley, CA 94710
Attn: Cric fro% ell
Arty wiiRen notice to Trumark shall N;, Sera to:
Trurnark Homes
4185 Blackhawk Pla ?a Circle
Siiite 200
Danville, GA 94506
Attn: Garrett Hinds
19,11 Professional � Seal, Where applicable in the deter nti'iatlon of
Trrrmar , �hr first page of a technical reporl, fifst page of design and each
page of constructlun diav ings shall be starnpedlseale�d and signed by Uie licensed
professional responsible for the reporlidesign preparation. The slarriplseal shall be in a
hlork entitled "Seal and Slgnature of Registered Professional with repoWdesign
responsibility," as in the following exannple,
Seal and Signature of Registered Professional with
repoitkiesign responsibility.
19.12 Integration. This Agreement, induding the lxopoA, scope of world, and payment
schedule atlxMd hereto and incorporated herein as Fxhiblts A, S and C, represents the
enlrre and Integrated agreement between Trumark and Artist and supersedes all prior
negotiations, representations, or a9mamerits, either wrillen or oral.
T'RUMARK
ARTIST
D V ILOP1viE I` SOLUTIONS WR -11LC, ERIC PCJWELL, a sole, proprialor
a Delaware l -,cited liability eo npany
Y'..- ._......... _._ ....
Name. r' uS
erg
Date" :. - T)� #
-- - - - - �: 1'�'
_w.
q a i
i
Exhibit A Scope of Worts
Wallis Ranch., Public Art
Scope of Wort
February G, 2015
Phase One;
Thfee (double) eniiy gaty: as dr:pif:ted in the rgraphics. Cane set is approximately 22', 10° wide x 4' nigh.
Td,m s( is :are approxirnately, IA,% 8" wide x d' high each. T he exact dimen s*s of the gates (anti M of the
otf€er ei�srt�e €�# � will fte deternii€ cd by the dimensions ofovided by the client. X1 walks ate. built €r,
accordance with ADD guidelines and bUilclir10 r;q[i(�,,;.
Railing 0n bridge (Pedestr€an prcateclive, railing, rap prraximately 240 feet long x 42" hit #n} ns depicted in the
graphics.
Phase Two:
Benches: There are ttirm hench s totN: two benches on the walking trail and cmp bench in brick of Antnne
Pavilion, Thp benches oars locations are depicted in the graphics_
Antonie Pavilion: Two sriflotural screens, one outside and one inside ifte pavilion. The location is shorn
on €hr: graphics, € hcy are carnposed pally of vintage industrial steel ohjects, some of which �,vere found on
the Wallis Ranch property, k descriptive plaqUe will be ineluded With the sculpture. Also Included is an
interpretive panel.
Design t Fabrication Proposal Package
Proposal Narrative
VVailis Radon was bxAh a Cattle ranch and a farm oven its '1001- years of use.
This history of the properly is rich ,, +lith d;irrie:s fhat will likely nevor be told.
However, wh0e exploring the property I unearthed a fascinating collection of iron obj-yrts thaf tell their corn
kind of story about the prop, rty'7 history. These include essential tools that would be uhiquitnus to any
f,nun; ditch forks, plow blades, tractor pars, pews and gear chains, horseshoes and engi ne parts avid mom
Thew: objects have are innate sculpturai integrity and ht4auty that I find to be compelling and inspiring. I
have integraied similar objo is in a runiber of my previous wod,,s. An impeflant eiefnont of 'khis project is
presorving and celebrating the Kist" of Wallis Ranch, viiiero otherwise that rmenlory might be last.
I will use these ohjpc,ts gas my inspiration, = will use a seleclion of the rartu�d objects for a sculptural arlwork
for Anto €7e Pavilion.
Locations of Artvvork
The gates ;rill be placpd at tho main entrances to the property.
The roiling will tact placed on the main ent!y bridge leading into the properly.
The benches will be placfA along the walking trail along the parameter of the properly aia(t i,l I)ack of
Antone Pavilion.
Anton Pavilions Thee sc:ulpiural scremns will he installed in and on the structure.
Proposed Materials
The artv,,ork wilI be made o,at of a cornbinallon torten steel a?id au then flc iron and starl objects from the
actUal Wallis rararh prapnrty, from other Tri- Malley farms and ranches and from (he Artist's co €leclion,
Corfen steel is a corrosion- reslslan� steep, that left uncoated develops «n miter layer patina. This patina
protecls the steel frorn a,ddkiorial corrosion. It is a high strength steel alloy that it is Used where higher
strength and Ifangor llf cyclo material are desired.
Correa has an oxidized, earthy kook that is very mach in keepinq with the aestfietics and colter palette 0.1 fhce
}lorries at Wallis Ranch, but aiso rexacily the Wor and texture of they iron objects that werra cullod from the
property. The Corten steel can be sealed and coated v ifh an anti - graffiti coating.
The benches wiif 7lso be made, of Cotten steel. The seats will be made of a sus #ainahlr; and very durable
wood. The wood vv�ill be sealed and coatod with an anti - graffiti coating.
Visuals 1 Renderings of Design Concept
Drav,irays and render ings
Material Samples
Fabrication
All of the artwork will lie frabricatcd in Artists studio in Berkeley. This assures high quality control and it
,nssuros Artist's agility to keep the projec:l on schedule.
Installation
Artist and his cret{, will instal., the ariuvork5, with arididonat suhconlractors as needed. Installation will be
coordinated v ith Trumark and its General Conli-actor. It is undui5locrd That the Cenr:ral Contractor will
provide Artist with notice as to when the site is r€ idy for instal labon, and wilI provide free access to ih�
sites for installations,
The railing pm,-ts will he installed in the existing holes on the concrete bridge. The gates will be installed
c+nfo enclineered posts that vJlll be designed and built io accommocl ate fhe vidght of the ptes. The
mec,hinismy for opening anti rlosinq the gates wilt be prov ded by the cIien( and ir0 ailed t)y Iho co
,artist and his crew will attach the vrrechanisms to the gates.
The henrhp s will Inc, installed by bolting (u,%ing i iten bolts) the bench footings into Tic, floor (conciele ?)
surfs oe where they vJll M.
Maintenance of the proposed artwork 1 materials
{ he only maintenance needed for the allwork iv the application of a clear coax On the f ellc h seats (every 5.
10 {years) and periodic uleariing as needed. Also all informalion nn the replacement of the benuil Seats wilt
be providod,
Graphics
[TO RE INSERTED BEHIND THIS ,':)AGV =j
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WALLIS RANCH PUBLIC ART:
COMPLETION I PAYMENT SCHEDULE (2.6.15)
EXECUTION Execution of Contract 14a/a 10 °In PIIarCh 1$, `�
Phase I Completion of design development 15% 25% April 10 -
proposal and submittal to Client 2015
Phase it
Phase III
Phase IV
Phase V
Phase VI
Phase VII
Phase IIX
Phase IX
$128,953.00
$193,429.50
Completion of structural engineering, 15% 40% May 30 $193,429.50
presentation to City Council and Art 2015
Committee and approval of design,
and 10% cot'npletion of fabrication.
(10% includes completion of al
railing frames and posts,)
25% offsite fabrication of the project
10%
55%
July 30
complete, (25% includes fabrication
2415
and installation of all railings,)
50% offsite fabrication of the project
10%
70%
October 30
complete. (50% includes fabrication
2015
of all gates,)
$12$,953.00
$128,953.00
100% offsite fabrication of the project 10% 85% January 31 $128,953.00
complete. (100% includes installation 1 2016
of gates (July 30), fabrication and
installation of benches (Sept 30) and
fabrication and installation of Antoine
Pavillion elements (Dec. 30). j
Installation of railings. j 5% i 90% February 28
Installation of Gates 5%
Installation of Anton Pavilion 5%
elements and benches.
Close Out 15%
2016
9510 lurch 31
2016
100°la March 31
2016
100% April 30
2016
$64,476,50
$64,476.50
$64,476,50
5193,429.50
TOTAL ARTIST PEE $1,289,530
EXHIBIT C
INSURANCE REQUIREMENTS
(a) Before cormnencing the Work, Artist {hereinafter the 'Subroniractor ") shall purchase
and maintain no less it iaf the following lnsurancc coverage, and shall provide TCUrrrark
CorrstrlrctiOn SeWWCOS, Inc. ('Builder') with bath Certificates Of IrrSLIMIC& and additional
insurod rndor•senionts evidencing all such coverage:
[ij Vifnr_k rs' Cumpens:aticfn and FmploVPrs L ia_bility_In_surance- with statUtary benefit$
and limits wninh shall fully comply with all Stake and Federal requirements, in an
aniounf not less than the followinq:
Coverage R: Statutory Policy Form,
Cover.go B: Employer's Liability.
Bodily Ir7}ury by Accident- $1,000,000 each accident,
Bodily Injury by Employee. $ 1,000,100 each en*oyee
Bodily Injury by Disnam-,,: $1,000,000 policy iirrrit
Govomge shall inciude a waiver of subrogation endorsernani in favor of Builder,
Trurnark (horoinagter "Owner") and any other additional insureds set fofih below.
Subcontractor shall provide it$ Current Workers' Corn pen sation Experience Modifier as
calculated by the Bureau of Workers' Compensation based on the Subcontractor's loss
experience and payroll.
(ii) Gornmercial Auto Crav!r e {covering awned autos, leased or hirod aLADS and
Hari -owned autos} not less than as follows:
Combined Bodily Ir7Liy ar-d f'r[ap r y aij7 W: $1,000,000 Combined single limit
per` accident bodily injury and property damage,
(iii) property fn r rice, aka an Installation Floater, covering the value of all of
SoVicnotrartor's labor and materials installed at the Project (irrclUding, withor.it
limitation, coverage against the perils rif fire, extended coverage, vandalism And
malicious mischief), which shall remain in effect until Subcontractor's completion of
its Work and arcnptanco; of that Work by Builder. Said coverage Shall be in an
amount not Icss than 5250,000.00. Aka, Subcontractor shall possess Eniolo_�ment.
Prac i c.q.s. Liabi1itj!, whir,fi shalt remain in affect until Subnontractnr's work is complete
and accepted by Builder. Said coverage shall be in an amount not lews than
�'I,OUt},G00.
(iv) Conlniercial Cenar•al I..iabilityr for Bodily Injury (including accidental death to any
person and subject to the same limit for each person) arid Pruperty Ban'tage with
combined single 1 €roots of no less than $5,000,000 per Occurrence and in the
aggregalle written on are ocourrence i asis. Limit regUirements may be met by any
combination of primary and/or excess /umbrella coverage.
Commercial General Liability forms must incli_rde: (a) premises and
operations coverage with no X, C or U exclusions: (ii) products and
completed operatinns coverage (which shall be maintained in effeef on an
annual renewal basis until all statute, of limitation and repose applicable
to the Work have expired, or for at least ter? (14) years following
completion of all Work, v011chever is greater); (c) blanket contractual
coverage and a separation of insureds clause; and (cd) broad form
property daniacge including completed oporations or its equivalent. 5eff-
insured retentions a nd/or deductibles on such i )IS Lira nCe s h a I I neat exceed
$25,000 per occurrence, and Subcontractor shall be responsible for
payment of such self - insured retention and /or deductible. Howover, such
insurance coverage forms shall provide that if Subcontractor fails to pay
any such self- insured retention or deductible, than Builder ;half be
permitted to pay such self - insured retention and /or deductible and Shall
have: the right to offset the costs of such payments against any sur•ns
payahle to SUbcontractor under H!, Contract.
(e +) it requirr,d, Mh a covOlragfa limit of riot less than $1,000,000
per anntirn.
(b) if rpquested by Builder, the above - described insurance shall be on a "per location" or
„per project" basis.
(G}
Subcontractor shall have Subcontractor's insurance company narne, by endorsement,
Boilde , Owner, and its mcrrrbe:rs, laariners, shareholders, officers, directors, Pmp10y8ak, eared
related entities and, if requested, Project fonder. including, 1mithout limitation, tha insureds
nAn1ed below, as additional insureds. t_.he, insurance afforcfed to each Additional Insured
shall be, primary Insurance. Any additional insured endorsement shall be at least as broad
ar ISO form C G 20 '10 11 85. Subcontractor stall provide Builder such cprtiticatigs of
coverage ar�d additional insured etidorsernents prior to commencing Work.
Castlelake 11 GP, L.P.
m Developnient Solutions 2, LLG
o Wallis Ranch Investors, LLC
o Trumark domes LLC, a California limited liability company
.l rumark Companies LLC, a California limited liability
* Trurnark Construction Services, Inc.
(d) SubcontraQtor's insurance policies shall each contain a primary endors�iment stating:
"Such coverage os is offered by this Policy for the benefit of the. Additk-mal lnsured(s� is
primary and any other cover�ige maintained by such Additional lns3ured(s) shall he non -
roijtrl but irig with the coverage provided under this Policy.°"
W SUbCU11Uau[ur'8 IrlSlrraracP polioies shall each i.ontain an endorsement containing a
waiver of srr }arogatlon (including workcxs' compensation) against Builder-, Owner and any
other arlditionnl insureds.
(f) If the Work is to be performed on an attached comr7 Uniky then shall by no exclusion
for gttgrhed or condarninium projocts.
(r�} There shall be no exclusions for continuing or progressive losses not keno +sort by
Subcontractor to exist prior to Policy inception,
{t1j Coverape must be on an "GCGCtrrenoia" basis for all insurance. "Claimg mAde" covcragc
shall not be wxept8ble.
(i) Any exclusion pertaining to professional cda5ign serviw.s shall apply only to such
services provided by the named insured in its capacity as an architect, engineer or surveyor.
�7
All Policies of Insuranr_.e shaif state, thAt not lass than thirty (80) days written notice will
be given to ac-ilder and Owner prior to cancellation or material ohangF� in coverage, and that
sUCh P. '1r)licy 01' POliGies ;ire primary, shall he issued by companles accoptable to Builde)r with
a most iecent Best's Elating 07�uide. rating of A or higher, with a Financial Size Cat @gory
rating of at ir!�-ast V11, and licensed to do business in the state in which the Project is 1coated.
It the coverage is canceled or reduced, Subuoritractor shall PrOGUr-e and fl11-11iSh to Builder
before he effective, rule of such cance- 118tion, t,,ortif c@tes of insurance and additional
insured endorsements conforming to the above requirements evidencing renewal or
roplaccment coverage's. Certificates of insurance stating the above notice, provisions And
including any endorsements adding Owner and Builder as additional insured roust be
delivered to Builder prior to corriniencement or any Work under this ConiraGt.
(k) Should Subcontractor tail to obtain the insurance coverage required or should
Subcontractor fail to timely renew the insurance ooverage as required, Builder shall have the
right, at Builder's ele(;tion, (i) to ohtair) such coverage on Subcontractor s behalt. at
Subcontractor's expense, frorn any insurance carrier selected by Buker in Builder's sofe
discretion; or (ii) to terminate this Contract, anri 13uilder shall retain all remedies hereunder
for breach of tills Contract. Builder shall have the right to offset the costs of premium for
such insuranco against any surns payable to Subcontractor under this [contract.
(1) Subcontractor shall sign such provide such additional coverage and take such
additional aNions as [he Projc.r i londor may require in connection with its project loan.
THE CERTIFICATES MUST BE SIGNED W11 W A ' VVET SIGNATURE" (not stamped).
'Please note that failure to ri-teet the above requirements Coro[ resuit in the delay of
payinerits clue 5ubcontractor, or a regLiest to cea j6n any work ern a project. ,P
Notwithstanding the foregoing re- quirements set forth in Subparagraph (a)(iii) above
regarding Commercial General Liability insurance, if Exhibit C -1 on itled
"CONSOLIDATED INSURANCE PROGRAM AND ADDITIONAL TERMS AND
C0NDIT10NS ", tog ethe 5Pjit1i the exhibits referenced therein are attached to this
Agreement, then that Exhibit ;hall supersede the: regui1-e1Tlents of subparagraph (a)(N)
above.
EXHIBIT C_q
CONSOLIDATED INSURANCE PROGRAM
AND ADDITIONAL
TEEMS AND CONDITIONS
Consistent with the Apreennent, Owner has elected to procure a Consolidated Insurance
Program ( "CIP') for certain insrarable risks on thrr Projr,ct, The C:IP is l)rocured through
Irornshore Specialty ln'WfanCe Company. The CIP shall be administered through
Development Solutions & Gorvicos ("CIP Adrr inhgfrafot" .
The following provisions, shall bo incorporated into the Agreement as though fully Set
forth therein. These provisions may amend, supersede or add to existing language in
the Agreement as ,cat forth herein. Subcontraactor acknowledges and agrees that its
compliance with the terr-r :s and conditions of the CIP is a matefial part of the Agreement,
and the following amendments and/or modifications are effective as of the date of the
Agreement. The amendments and/or modifications are fully incorporated in the
Agreement. in the event of any conflict between this Pxhibit and the Agreement or
Plans and Spe ,ifir..rations, the terms of this Exhibit shall control.
Consolidated Insurance Proaram_(CIP1
1. As set forth above, Owner han, elected to procure ca CIP manning it, as well as
other designated construction participants, inCluding Builder, Subcontractor and other
participants and subcontractors (hereinafter colle ctivedy referred to as "Patflcipants" },
for certain risks associate{ with the project. The provisions of the Agreement regarding
SUb con trac;tors' obligations to provide General Liability insuraance. for this l,roject are
hereby superseded, except as specifically set forth in this Addendum regarding work
away fronn the Project. If an Exhibit C -3 is attached, then enrollment in the CIP shall be
governed pursuant to the enrollment form or procedural manual attached, . Without in
any manner modifying the policy (ies), Subcontractor shall enroll in the CEP upon
signing the Agreement. Errrollrraent must take place prior to an occurrence for which
coverage is sought under the CIP. All Subcontractors and other Participants shall be
enrolled in the CEP through the CIP Administrator. In limited circumstances, an
independent csrn'tractor rnnay be exempt from the CIP. In the event of such exemption,
the CIP Administrator shall issue a Certificate of ikon- enrollment. Certain
Subcontractors may be ineligible for enrollment into the G IP if their scope of work is of
the type which would be excluded under the CIP, These Ineligible Subcontractors shall
provide insurance as set forth herein and in thy, Agreement.
2. The types of risk, covercad by the CIP are listed completely in the CIP,
Subcontractor is charged with the responsibility of reviewing and obtaining counsel
regarding the [SIP. Owner and BrlElcl¢r make no representations regarding the mature,
quality or limits of the CIP and Subcontractor expressly acknowledges thy: lack of
reliance upon any representations matte by Owner or Builder or their representatives
T,unaark Inkirrl:: -t- Suhuwitr-<icun' It�ilibrl ; __. - -- -
regarding the nature, quality n€ Iirnits of the insurance provided by tile. GIP.
Subcontractor shall hold Owner, Builder and their representatives, including, but not
limited tea, CIP Administrators, insurance brokers and/or agents, free and harrilless frrarn
any and all claims asserting or alleging that the type and/or amol.lnt of coverage
provided u ride r thr- CIF' is iraidoquate or insufficient, The C I P is interrdecd to be the
primary source of coverage for tIle risks covered and shall assUmr- primary position to
Subcont€ actor's insurance in the clovored areas of risk.
(tea) Civil Code Section 2782.99 Disclosures re the CIR
Pursuant to Civil Code section 2782.95(a), Builder hereby discloses the total
amount or method of calcination of any credit or compensation for- proMir€m
required frorn Subcontractor as follows-,
_n t!;__ri�fe tto_Wra a Administrator negotiation for method of calculation.
By attaching haroto as Fxhibit G -2 a copy of the wrap insclaance policy, or binder or
declaration sheet, BUilder discloses, pursuant to Civil Code section 2782.95(h), to the
extent known by Builder, the, following information concerning the CIR
1, the policy limits are as set forth in the attached Exhibit C -2;
2. the scope of policy coverage is as set forth in the Exhibit C -2;
3. the policy tern's is as set forth in the attached Exhibit C -2;
4. the, basis upon which the deductible or occurrence is triggered by the
insurafte carrier is as set forth in the attached Exhibit C-2;
if the {policy covers more than one work of improvement, the number of
units, if ally, indicated on the application for the inSUrance policy are as
follows; 94 units; and
6. a good faith estin -late of the arnaunt of FIvailable limits remaining under the
policy as of this date (based on information from the insurer or broker) is
the full anlourlt Of the policy limits unless otherwise sips .ifically noted here:
DlselosUres made pursuant to paragraphs (5) and (Ca) are recognized to be based Upon
inforr- nation at a given moment in time. and may not accurately reflect the actual number
Of Units covered by the pfulicy or the arriourat of inc;uiarice available, if any, when a later
claim is made. Any party receiving a copy of the policy, minder, or declaration sheet
shall not disclose it to third parties other than the Participant's insurance broker or
attorney unless required to do so by law. 11-he participant's insurance broker or attorney
may not disclose the policy, minder, or declaration to any thirst party unless regUired to
do so by lav:+
Trmna trl: laaili.3tr: —2— SIAM. aiaaa'1,w( r 111hi-1ais
(b) The GIN roquires satisfaction of a per occurrence sclf- insured retention in thr:
amount set forth in Exhibit C -2. Each Participant is obligated to contribute
toward the deductible in the manner set forth herein. If a Claim covered by the
CIP is made either during the course of construction (prior to completion and
acceptance of Subcontractor', work) or after completion of the Project, Owner
S11211 allocate to etch subcontractor who was "involved" in either a property
damage or bodily injury claim, PFC�ARDL.ESS OF FAULT, a pro -rata share of
the per occurrence deductible, "Involved" includes, but is not limited to, (1) an
occurrence where an employee of a contractor or third party is injured on the
.lob site acrd sires for a clain) that is covered by the CIF'; (2) an occurrence
whr -:re property of ancathar contractor, suhcoritracfor or Third party is dai nag ed
in any way as a result Of ir,, connection, directly or indirectly, with the work of the
Serbcontrti - actor; or (3) an alloged occurrence where- a third party alleges
deficiencies in work that was perfornrred, or materials #hat were :supplied, in
whale or in part by a Participant. Payment of the deductible may be deducted
from! arr10unts ottrerwise clue the involved Subcontractor(s) when Owner or
Builder has incurred the self - insured retention. In the event the amounts due
SUbcontrac:tor(s.) is insuff€clent to meet the. self - insured retention or the Project
is cOMPleted, SUbcontractor(s) shall arrange for direct payment of the self -
insured retention to Owner. This allocation of than self-insured retention is not
an indemnity clams and shall remain uninsured by the CIS'. It is a contracWal
allocation of the mutual obligations of the insureds under the CIP.
u. Subcontractor acknowledges and agrees that all sub Ver contractors Vvhu perform
any work on the Project, if any, shall bo enrolled in the CIR Subcontractor is
responsible for and shall take all necessary steps to cooperate with Owner to enroll all
sub tiered contra Mors into the CIP. Subcontractor shall also be responsible for ensuring
that any anti all sulb- €er contractors comply with all insurance requirements set forth in
the Agreement, as will a.5 all requirements Applicable; to Subcontractor that are
contained in this Exhibit, the Agreement and the CIP,
4, ShOUld a claim be made by any third party, Owner shall maintain unilateral
authority and entitlement nt io select counsel to represent all Participants' interests,. To the
fullest extent permitted by law, Subcontractor agrees to waive any potential or actual
conflict of interest irr the selection of counsel by Owner,
5. Subcontractor, on its behalf and on Behalf of its insurers, waives all rights against
prarlics unrolled in the CIP for darringos that are € overed by applicable insurance..
6, The obIirgrations of Sratarantrador pertaining to indemnification undrrr SnCtion 9
are excess to the CIF' and shall not take effect until and unless the insurance provided
under the CIP is exharIstecl, inapplicable to the prarticular claims or otherwise
unavailable.
Minimum Further Insurance Requirements for Enrolled in tile CIP.,
I. Coverage provided urider the C:IP is set forth in the insurance policy (ies) in f = -111.
Without modifying any of the terrrrs and conditions of the poky (iris), the coverage is
generally described as Gc nerzai Liability in the limits described in the declarations Page
of the policy (ires). The policy (ios) is/are intended to cover third party liability claims
arising out of the perLonallbodily injury Land pioperty damage clairns emanating from the
Project. SUbcorRractor, in its solo discretion, may elect, but is not required, to procure
its own gcmor-al liability ii-rsrrrOr ice for this Project. In such ail event, said insurancc- shall
be excess ;end non contributory to that provided by tho G'IP.
2. Coverage is riot provided under the CIP in the areas described in Exhibit C,
%ection (a), subsoctions (i) through (iii), and therefore Subcontractor shall comply with
all requirements of Exhibit C, subsections (i) throrrghr (iii) and all other provisions of
Exhibit C applicable thereto.
3. For all claims fur darnages a rising away from the Project site, SUbcontr,r,� for shat[
prorurr� insurance that, at a roinirnrrrTl, meets the requirements of Exhibit C, section (a),
sUbsection (iv) and all other provisions of Exhibit C applicabic thereto.
Trunrinrk lnifl,,i , -4- Sail ?contrmtor Initials
EXHIBIT C-2
Trlllli'll k: SW)Collllavtofl
Exhibit B
Public Art Location Map
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Exhibit C
Sculpture Area Improvements
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Exhibit D
Bond Estimate
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Bond Estimate
Faithful Performance. $300,000
Labor and Materials. $150,000
Exhibit E
Form of Assignment Agreement
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[Form of Assignment Agreement]