HomeMy WebLinkAboutReso 62-16 Wallis Ranch Public Art RESOLUTION NO. 62-16
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.
Page 1 of 2
PASSED, APPROVED AND ADOPTED this 3rd day of May, 2016, by the following vote:
AYES: Councilmembers Biddle, Gupta, Hart, Wehrenberg, and Mayor Haubert
NOES: None
ABSENT: None
ABSTAIN: None
t-tr:1( /j - L
Ma or
ATTEST.
72" ;71-
City Clerk
Reso No.62-16,Adopted 5-3-16, Item 4.4 Page 2 of 2
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. 75-15 (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 minimum 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
free standing sculpture (the "Sculpture"), in the locations depicted in "Exhibit B," which is
attached hereto and incorporated herein by reference. The Public Art 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 TI-IE
PROMISES AND COVENANTS 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 Manager 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 @trumarkco.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 @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 I.2,2.
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 1I
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 @trumarkco.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 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 cr 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
8,58.050(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 Party.
2.2.2 Addresses. The notice addresses for the Parties, as of the Effective
Date, are as follows:
To Developer: Development Solutions WR, LLC
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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 Assignment remains the same. 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: DEVELOPER:
CITY OF DUBLIN, a California municipal DEVELOPMENT SOLUTIONS WR, LLC, a
corporation Delaware limited liability company
By: By:
Name: Name:
Title: City Manager Title:
ATTEST:
By:
Name:
Title: City Clerk
APPROVED AS TO FORM:
By:
Name:
Title: City Attorney
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{
PUBLIC ART AGREEMENT BETWEEN
DEVELOPMENT SOLUTIONS WR, LLC AND ERIC POWELL
THIS AGREEMENT is made by and between DEVELOPMENT SOLUTIONS WR, LLC.a Delaware
limited liability company("Trumark')and ERIC POWELL, a sole proprietor("Artist`)as of Fe/ml—,2015r ,
for the purposes and on the terms and conditions set forth below, Apeectbi /4
RECITALS
WHEREAS, Trumark is the owner of property located in the City of Dublin("City") generally located on
the west side of Tessajara Road, south of the County line (known as Wallis Ranch) (APN: 986-0004-005•
05) (-Properly')and intends to develop up to 806 dwellings units on the Property("Pmject"y: and
WHEREAS, the City conditions of approval for the Project require Trumark to acquire and install a
public art project in accordance with Chapter 8.58 of the City Municipal Code, to comply with a Public Art
Compliance Report, 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 Trumark that
sets forth the ownership, maintenance responsibilities and insurance coverage for the 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 artistic services described in this
Agreement for the Projects public art project, including but not limited to design, fabrication and installation
of the public art project; and
WHEREAS, Artist is qualified and desires to perform the artistic services required by Trumark as set
forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto
agree as follows:
AGREEMENT
Septign 1, SERVICES. Subject to the terms and conditions set forth in this Agreement, Artist shall
provide to Trumark the services necessary to design, fabricate, provide and install the artwork ("Work")
described in the Scope of Work attached as Exhibit A at the time and place, and in the manner specified
therein. in the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A,
the Agreement shall prevail.
1.1 Term of Sgrv_ices. The term of this Agreement shalt begin on the date first noted above
and shall end on July 1, 2016, and Artist shall complete the Work described In Exhibit A
prior to that date, as set forth further in the Performance and Payment Schedule described
in Exhibit B, unless the term of the Agreement is otherwise terminated or extended, as
provided for in this Agreement. The time provided to Artist to complete the Work required
by this Agreement shall not affect Trumark's right to terminate the Agreement, as provided
for in this Agreement.
1.2 Standard..of Artist shall perform the Work required pursuant to this
Agreement in the manner and according to the standards observed by a competent
practitioner of the profession in which Artist is engaged in the geographical area in which
Artist practices its profession. Artist shall prepare all work products required by this
Agreement in a substantial, first-class mariner and shall conform to the standards of quality
normally observed by a person practicing in Artist's profession. All Work shall be subject
to, and performed in accordance with, this Agreement, the exhibits attached hereto and
incorporated herein by reference, and all applicable local,state and federal laws, rules and
regulations. Artist represents that it is experienced in providing such Work and has all
permits, qualifications and approvals of whatever nature that are legally required to
perform the Work and that such licenses and approvals shall be maintained throughout the
term of this Agreement.
1.3 Assignment of Personnel. Artist shall assign only competent personnel to perform Work
pursuant to this Agreement. In the event that Trumark, in its sole discretion, at any time
during the term of this Agreement, desires the reassignment of any such persons, Artist
shall, immediately upon receiving notice from Trumark of such desire of Trumark, reassign
such person or persons.
1.4 Time, Artist shall devote such time to the performance of Work pursuant to this
Agreement as may be reasonably necessary to meet the standard of performance
provided in Section 1.2 above and to satisfy Artist's obligations hereunder.
Section 2. §GOPE OF WORK: Artist shall provide the Work for the Wallis Ranch public art project as
more specifically described in Exhibits A and B of this Agreement.
2.1 Trumark shall be responsible for providing the Artist, without cost, copies of designs,
drawings, reports, and other relevant data needed by the Mist to design and execute the
Work.
2.2 The Artist shall, whenever required during the tern) of this Agreement, present to Trumark in
writing, drawing, or other appropriate media for further review and approval any significant
changes in the scope, design, color, size, material, utility, support requirements, texture, or
location of the site or the Work. A significant change Is any change that could affect the
future installation, scheduling, site preparation, or maintenance of the Work, or the concept
of the Work as represented in Exhibit A.
2.3 Trumark may, at any time, request the Artist in writing to(a) revise portions of the Work that
he has previously completed in a satisfactory manner; (b) delete portions of the Work that
the Artist has not yet performed; (c) perform additional work beyond the Scope of Work
provided in Exhibit A; and, (d) make other changes within the general scope of the Work to
be performed under this Agreement. In the event of such a written request, the Artist may,
but shall not he obligated to agree to any such request.
2.4 In the event the request for change is agreed to by the Artist, this Agreement shell be
amended, in writing, specifying the agreed changes, including, but not limited to, a
description of services, additional budget, payment schedule,and timetable. In the event that
the parties cannot agree on terms for the changes, Artist shall not be obligated to perform
the changes; however, Trumark shall be entitled to terminate the Agreement without cause
pursuant to Article 17 herein.
2.5 No services for which additional compensation will be charged shall be provided by the Artist
without the prior written authorization by Tamar*.
Section 3. COMPENSATION. Trumark hereby agrees to pay Artist a sum not to exceed
$1,289,530.16 as specified in Exhibit B, notwithstanding any contrary indications that may be contained in I.
Artist's proposal, lot Work to be performed wider this Agreement; or subject to additional amounts for any
revisions requested and change order approved by Trumark as provided for in Section 2.3 above or
elsewhere in this Agreement. In the event of a conflict between this Agreement and the payment schedule,
attached as Em' ij B, regarding the amount of compensation, the Agreement shall prevail. Trumark shalt
pay Artist for services rendered pursuant to this Agreement at the lime and in the manner set forth herein.
The payments specified in Exhibit P shall be the only payments from Trumark to Mist for services
rendered pursuant to this Agreement. Artist shall submit all invoices to Trumark in the manner specified
herein. Except as specifically authorized by Trumark, Artist shat/ not bill Trumark for duplicate services
performed by more than one person.
Artist and Truman;
acknowledge and agree that compensation paid by Trumark to Artist under this
Agreement is based upon Artist's estimated costs of providing the Work required hereunder, including
salaries and benefits of employees and subcontractors of Artist. Consequently, the parties further agree
that compensation hereunder is intended to include the costs of contributions to any pensions and/or
annuities to which Artist and its employees, agents, and subcontractors may be eligible. Trumark therefore
has no responsibility for such contributions beyond compensation 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 Trumark in writing when Artist has completed all
obligations, services and deliverables under this Agreement for a phase, end Trumark
shad review the applicable Work for initial acceptance and payment. Invoices received
and approved before the 25c'1,011 be paid by the 2511 of the following month, but invoices
received and approved after the 25th will be paid by the 25ttn of the second following month,
Invoices shall contain the following inloirnation:
■ Serial identifications of each billable phase; i.e., Bill No. 1 Phase I for the first
invoice,etc.;
• The beginning and ending dates of the billing period;
▪ A task summary containing the original contract amount, the amount of prior
billings, the total due this period, the balance available under the Agreement, the
Artist's signature.
3.2 jolt! ment. Trumark shall pay for the Work to be rendered by Artist pursuant to this
Agreement. Trumark shall not pay any additional sum for any expense or cost whatsoever
incurred by Artist in rendering services pursuant to this Agreement. Trumark shall make
no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Artist submit any invoice for an amount in excess of the maximum
amount of compensation provided above either for a task or for the entire Agreement,
rrniess the Agreement is modified prior to the submission of such ern invoice by a properly
executed change order or amendment.
3.3 Payment..gf...Taxes. Artist is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
3.4 Payment u„_on Terminatinn, In the event that Trumark or Artist terminates this
Agreement, Trumark shall compensate the Artist for all outstanding costs. and
reimbursable expenses incurred for wort satisfactorily completed as of the date of written
notice of termination, Artist shad maintain adequate logs and timesheets in order to verify
costs incurred to that date.
3.5 Author(zation to Perform Services. The Artist is not authorized to perform any services
or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from Trumark.
5.1cti.Qn.4. FACILITIES AND EQUIPMENT. Except as set forth herein, Artist shall, at its sole cost
and expense, provide all facilities and equipment that may be necessary to perform the Work required by
this Agreement.
Section 5. RESPONSIBILITY OF THE ARTIST
5.1 The Artist agrees that an essential element of this Agreement is the skill and creativity of
the Artist. The Artist shall not assign the creative or artistic portions of the Work to another
party for the production of the Work without the written consent of Torment. Failure to
conform to this provision may be cause for termination of this Agreement, at the-sole
option of Trumark.
5,2 The Artist shall be responsible for providing services described in Exhibit A, including but
not limited to, the quality and timely completion of the services. As part of the Work, Artist
shall be responsible for designing the artwork, as described in Exhibit A, so that it can be
constructed without exceeding the approved overall budget for the artwork of $
1,289530.16, The Artist shell, without additional compensation, correct or revise any
errors,omissions,or other deficiencies in his/her Work.
5.3 The Artist shall complete the design, fabrication and installation of the Work in substantial
conformity with the attached Exhibit A, Scope of Work,
5,4 The risk of loss or damage to the Work shall be borne by the Artist until final acceptance •
by Trumark. The Artist shall take such measures as are necessary to protect the Work
from loss or damage until final acceptance by Trumark, including but not limited to storing
the Work pending installation. Notwithstanding the foregoing, once the Work is delivered
to the site as scheduled by the parties, the risk of loss or damage shall be subject to
Trumark's OCIP insurance coverage as set forth further in Section 13. Furthermore, upon
scheduled delivery of the Work, should Artist find an adverse site condition that prevents
installation of the Work as scheduled, Artist shall notify Trumark and Trumark shall be
responsible for the safe storage of the Work pending installation.
Section 6, INIKLYIROVISION OF SERVICES;DAMAGES FOR DELAYED PgRFORMANCE; The
parties agree that in the performance of the terms and requirements of this Agreement by the Artist that
time is of the essence, Artist shalt devote such time to the performance of services pursuant to this
Agreement as may be reasonably necessary for satisfactory performance of Artist's obligations pursuant to
this Agreement. The Work shall be completed according to the schedule set forth in Exhibit B and all Work
shall he complete, and ready for Trumark's final acceptance,by April 30,2016.
6.1 Damages for Delayed Performance. Subject to reasonable proof and documentation
confirming the same submitted by Trumark, Artist shall be liable for any actual damages
resulting, directly or indirectly, from delays in performance caused by Artists acts or
omissions, including but not limited to Project construction or occupancy delays. Damages
may include, but are not limited lo the cost to retrofit the Work installation area should
Artist not meet installation schedule as specified in Exhibit p. The Artist shall not he liable
to Trumark for damages resulting from delays caused by force majeure or by acts or
omissions of Trumark, Trumark's architect or Trumark's general contractor; other Trumark
or general 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, become ill, injured or otherwise
incapacitated (collectively, "incapacitated")such that Artist is unable to work for any period
not exceeding 30 days (whether consecutive or non-consecutive), any delay arising out of
such incapacity will be allowed by Trumark whenever it is practicable to do so, considering
the facts and circumstances of the Work, the Project, Trumark's architect and Trumark's
general contractor. Trumark may require Artist to provide medical certification of any
claimed incapacity. in the event Artist is incapacitated such that Artist is unable to work for
a period exceeding a total of :10 days (whether consecutive or nonconsecutive), Trumark
may, at its option, undertake to complete and install the Work in Artist's absence, so long •
as the final artwork is substantially similar to that designed by Artist, If Trumark undertakes
•
to complete the Work, Trumark shall give due consideration to Artist's suggestions, and
Artist may disclaim authorship of the Work. if Trumark exercises its option to implement
the artwork in Artist's absence, any compensation paid or payable to Artist shall be
reduced by the costs and expenditures of Trumark in completion and installation of the
Work. In case of incapacity exceeding 30 days, the following person shalt be Artist's
representative vis-a-vis Trumark for purposes of this Section 6 (Timely Provision of
Services; Damages for Delayed Performance) unless otherwise directed in writing by the
Artist:
Eric Powell
812R Camelia Street
Berkeley, CA 94710
Section 7. APPROVAL ANQ_FINN._ACCEPTANCE OF ARTWORK. Payment does not imply
acceptance of work. The granting of any payment by Trumark, or the receipt thereof by Artist, shall in no
way inssnn IM liability of Artist to replace unsatisfactory work, equipment, or materials, although the
unsatisfactory character of such work, equipment or materials may not have been apparent or detected at
the time such payment was made, Materials, equipment, components, or workmanship that does not
conform to the requirements of this Agreement may be rejected by Trurnark and in such case must be
replaced by Artist as soon as possible.
7.1 The granting or withholding of any approval by Trumark shall be determined by Trumark in
its sole and reasonable discretion. However,Trumark shall approve all deliverables if they
materially conform to plans or documents previously approved in wilting by Tiurnaik and
City. If Trumark withholds approval of any deliverables or phase, in addition to other rights
or remedies available to Trumark under the Agreement or applicable law, Trumark shall
have the right to terminate this Agreement immediately and shall have no further
obligations under this Agreement except as otherwise provided herein,
7.2 Final Acceptance. Artist shall advise Trumark in writing 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 send a notice of
response identifying in writing any obligations, services or deliverables that Artist has not
satisfactorily met, any defects in Artist's performance, and the requirements for Artist to
cure any such default. Artist shall have 20 days from dispatch of the notice of response to
cure any defects in Artist's performance identified in Trumark's notice of response. The
Work shall not be officially accepted by Trumark unless the City has also issued a
resolution of final acceptance.Trumark shall make a good faith effort to promptly request a
determination as to final acceptance from the City.
Section 8, WARRANTI_ESLSTANDARDS
8.1 Unique. Artist warrants that the design of the Work is an edition of one, and that neither
Artist nor Artist's agents will execute or authorize another to execute anothe7 work of the
same or substantially similar image, design,dimensions and materials as the Work. Artist
may create works that utilize or incorporate various individual art elements that comprise
the Work, so long as the work utilizing or incorporating such individual elements (1)does
not consist predominantly of such elements, (2) is not the same or substantially similar in
image, design, dimensions and materials as the Work, and (3) is not displayed in an
environment that is the same or substantially similar to the environment in which the Work
is to be displayed at the site.
8.2 Warranty of Title.Artist represents and warrants that Artist is the sole author of the Work
and that Artist is the sole owner of any and all copyrights pertaining to the Work. Artist
further represents that the Work is free and clear of any liens and that there are no
outstanding disputes in connection with property rights, intellectual property rights or any
other rights in the Work or any parts of the Work.
8.3 The iist shall faithfully perform the Work required under this Agreement in accordance
with standards of care, skill, training, diligence, and judgment provided by highly
competent professionals who perform work of a similar nature to the Work described in this
Agreement. Artist shall assign only competent personnel to perform services pursuant to
• . this Agreement. In the event that Trumark, in its sole discretion,at any time during the term
of this Agreement,desires the removal of any such persons,Arlisl shall., immediately upon
receiving notice from Trumark of such desire of Trumark, cause the removal of such
person or persons, unless in the Artist's sole opinion, the skill or creativity of such person
or persons is essential to the creation of the Work.
8,4 Warranty of Workmanship. The Artist shall guarantee his/her Work to be free from faults
of material and workmanship for a period of one (1) year after installation and final
acceptance of all Work by Trumark. The Mist shasi deliver the Work free and clear of any
Hens from any source whatsoever. The foregoing guarantees shall apply only to the Work
that is entirely that of the Artist or persons responsible to the Artist, as installed, and shall
not apply to materials or workmanship of projects in which the Work of the Artist is
integrated or combined, or to materials purchased, acquired, or installed by a person or
entity not responsible to the Artist.
8.5 Warranty of Public Safely. Artist represents and warrants that the Work will not pose a
danger to public health or safety In view of the possibility of misuse, if such misuse is ire a
manner that was reasonably foreseeable at any time during the term of this Agreement.
8.6 Warranty of Acceptable Standard of Display and Operation. Artist represents and
warrants that:
• 8.6.1 Occasional or minimal cleaning and repair of the Work and any associated
working parts and/or equipment will maintain the Work within an acceptable
standard of public display;
8.6.2 Foreseeable exposure to the elements and general wear and tear will cause the
Work to experience only minor repairable damages and will not cause the Work to
fall below an acceptable standard of public display; and
8.6.3 With general routine cleaning and repair, and within the context of foreseeable
exposure to the elements and general wear and tear, (he Work will not experience
irreparable conditions that do not fall within an acceptable standard of public
display, including mold, rust, fracturing, staining, chipping, tearing, abrading and
peeling.
8.7 Manufacturer's Warranties. To the extent the Work incorporates products covered by a
manufacturer's warranty, Artist shall provide copies of such warranties to Trumark.
8.8 Liens, Artist shall not suffer or permit any liens of any kind to stand against the Property
or the adjoining properties or any part thereof by reason of any work, labor, services or
materials done for, or supplied to, or claimed to have been done for, or supplied to, Artist,
its agents, representatives, contractors, subcontractors,employees, and licensees. If any
such lien shall at any time be fled against the Property or the adjoining properties as a
result of Mist's (or its agents, representatives, contractors, subcontractors, employees,
and licensees) action or inaction, Artist shall cause the same to be discharged of record
within thirty(30) days after the date of filing the same, by either payment, deposit or bond.
if Artist shall fail to discharge any such lien within such period, then, in addition to any
other rigid ur remedy of Trumark, Trumark may, but shall vol be obligated to, procure the
discharge of the same and recover any amount reasonably paid or deposited by Trumark
for any of the aforesaid purposes, and all legal and other expenses of Trumark, including
reasonable counsel fees, in defending any such action or in or about procuring the
discharge of such lien,with all necessary disbursements in connection therewith.
5tlon 9. MAINTENANCE OF ARTWORK
9.1 Unless specifically provided in this Agreement, Artist shall not be responsible for ongoing
maintenance of the Work.
9.2 Artist shall provide Trumark with a general maintenance plan for the Work, with a detailed
description of future anticipated maintenance requirements; a recommended maintenance
schedule; anticipated and required care andr'ar replacementlupgrade of any part of the
Work and associated moving parts or equipment including any staff time involved in
displaying or operating artwork and the frequency of such staff involvement; and written
instructions and manufacturer's specifications for reasonably foreseeable maintenance
and preservation activities relating to the Work.
9.3 The Work shall be durable, taking into consideration that the installation site may be an
unsecured public or private space that may be exposed to elements such as weather,
temperature variation, and considerable movement of people and equipment. Artist shall
ensure that all maintenance requirements will be reasonable in terms of time and expense.
9.4 Trurnark is not required by this Agreement to maintain the Work to any particular standard.
Trumark may determine to allow the Work to deteriorate in accordance with the Work's
temporary life span, if deemed appropriate by Trumark or if Trumark lacks sufficient funds
for required maintenance and/or conservation. If the Work suffers deterioration, Trumark
shall have sole discretion to determine whether to remove the Work from display as a
result of deterioration, whether to replace any portion of the Work or translate any
component into new media, or whether to maintain the Work on display despite its
deteriorated condition.
9.5 The anticipated life span of the Work is no less than twenty years from the date of final
acceptance of all Work by Trumark. After that time, Trumarrc in its sole discretion may re-
evaluate the Work to determine if it retains its identity as a work of art and, if not, whether
to take appropriate action, including the possibility of destroying the Work. If Trumark
determines that, through decay,vandalism or other forces,the Work has lost its integrity to
the point where it should be destroyed, Trumark shall first offer the Work to Artist free of
charge and in writing,
Section 10. ARTIST'S RIGHTS;TRUMARK'S OWNERSHIP RIGHTS
10,1 Trumark shall own and have the right to, or authorize third parties to, relocate, repair, alter,
restore, modify, or remove, in whole or part, the Work in Trumark's sole and absolute
discretion. Tru mark shall make commercially reasonable efforts to contact and confer with
Artist before any permanent or temporary relocation. repairs, restorations, alterations,
modifications, or removal in whole or part of the Work. However, Trurnark, and Trumark's
successors and assigns, shall possess full and sole authority and discretion to make, or
authorize third parties to make, any and all changes, permanent or temporary relocations,
alterations, repairs, restoration, modifications arid removal in whole or part of the Work,
10,2 With respect to the Work produced under this Agreement, and in consideration of the
procedures and remedies specified in this Agreement, Artist waives any and all claims,
arising at any time and under any circumstances, against Trumark, its directors, officials,
officers, partners, contractor, agents, employees, successors and assigns under the
federal Visual Artists Rights Act(and 113(d)), the California Art Preservation Act(Cal. Civil
Code §§987 et set.), and any other focal, state, federal or international laws that convey
rights of the same nature as those conveyed under 17 U.S.C. §106A, Cal. Civil Code
§§987 et seq., or any other type of moral right protecting the integrity of works of an If the
Work is incorporated into a building or structure such that the Work cannot be removed
from the buitding or structure without alteration of the Work, Artist waives any and all such
claims against any future owners of the site,and their agents, officers and employees, for
alteration of the Work.
10.3 If Trumark alters the Work without Artist's consent in a manner that is prejudicial to Artist's
reputation, Artist retains the right to disclaim authorship of the Work in accordance with
California Civil Code§987(d)and 17 U.S.C. §106A(a)(2).
10.4 Except as provided in this Agreement, with respect to third parties who are not directors,
officials, officers, partners, employees, agents, contractors, successors and assigns of
Trumark, Mist retains Artist's moral rights in the Work, as established in the Visual Artists
Rights Act (17 U.S.C. §§1O6A and 113(d)), the California Art Preservation Act (Cal. Civil
Code§§987 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 Mist
from pursuing a claim for alteration of the Work against a third party who is not a director,
officer, official, partner, employee, agent, contractor, successor or assign of Trumark.
Trumark has no obligation to pursue claims against third parties to remedy or prevent
alteration of the Work, However, as owner of the Work, Trumark may pursue claims
against third parties for damages or to restore the Work if the Work has been altered
without Trumarkss authorization, in Trumark's sole and absolute discretion.
Section It INTELLECTUAL PROPERTY AND PUBLICITY RIGHTS
11.1 Copyright. Subject to ownership, usage rights and licenses granted to Trurnark
hereunder, Artist shall retain all 17 U,S,C. §106 copyrights in all original works of
authorship produced under this Agreement. Artist's copyright shall not extend to
predominantly utilitarian aspects of the Work, such as landscaping elements, furnishings,
or other 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 Trumark, and to Tnirnark's
directors, officials, officers, partners, employees, agents, contractors, successors and
assigns, an unlimited, non-exclusive and irrevccable license to do the following with
011U iUJCV(.
11,2.2 Reproduction and Distribution.Trurnark may make and distribute, and authorize
the making, display and distribution of, photographs and other 2-dimensional
reproductions. Trurnark may use such reproductions for any Trurnark -related
purpose, including advertising, educational and promotional materials, brochures,
books, flyers, postcards, print, broadcast, film, electronic and multimedia publicity,
gifts for benefactors, documentation of City's Public Art Collection, and catalogues
or similar publications. Trumark shall ensure that such reproductions are made in
a professional and tasteful mariner, in they sole and reasonable judgment of the
Trumark,The license granted hereunder includes the right to create 2 dimensional
reproductions on items such as tote-bags, T-shirts, coffee mugs and similar
merchandise. Nothing hereunder shall be construed to constrain Artist from
creating posters, note cards, or other reproductions of the Work with appropriate
credit to Trurnark.
11.3 Third Party Infringement. Trumark is not responsible for any third party infringement of
Artist's copyright and not responsible for protecting the intellectual property rights of Artist.
11.4 Publicity. Trumark shall have the right to use Artist's name, likeness, and biographical
information, in connection with the display or reproduction and distribution of the Work
including. all advertising and promotional materials regarding Trurnark, Mist may provide
and install a plaque on or near the Artwork containing a credit to the Mist and a copyright
notice substantially in the following form: Copyright ( Eric Powell 2015. Artist shall be
reasonably available to attend any inauguration or presentation ceremonies relating to the
public dedication of the Work,
11,5 Trademark. In the event that Trumark's use of the Artwork creates trademark, service
mark or trade dress rights in connection with the Work, Trurnark shall have an exclusive
and irrevocable right in such trademark, service mark, or trade dress.
11.6 Resale Royalty. If Trurnark sells the Work as a fixture to real property, and if the resale
value of the Work is not itemized separately from the value of the real properly,the parties
agree that the resale price of the Work shall be presumed to be less than the purchase
price paid by Trurnark under this Agreement. Thus, Trurnark has no obligation to pay
resale royalties pursuant to California Civil Code §986 or any other law requiring the
payment of resale royalties. If Trumark sells the Work as an individual piece, separate from
or itemized as part of a real properly transaction, Trumark shall pay to Artist a resale
royalty to the extent required by law,basal upon thr sale price of the Artwork.
Ji
tE
respect to the Work, and any original works of authorship created under this Agreement,
whether in whole or in part, in all media (including electronic and digital) throughout the
universe:
11,2,1 Implementation, Use and Display, Trumark may use and display the Work (to
the extent the Work includes graphic representations or models), To the extent the
Work involves design elements that are incorporated by Trurnark into the design of
the Properly and Project, Truniiark may implement such elements at the Property
1
11.7 If for any reason the proposed design is not implemented, all rights to the proposed
artwork shall be retained by the Artist, Trumark shall have no right to implement tire
proposed artwork,whether or not protected by copyright, unless and until Trumark and the
Artist enter into a subsequent agreement for the implementation of the proposod design.
Section 12 OWNERSHIP OF RESULTS AND RISK OF LOSS
12.1 Title Transfer. Except in the case o1 early termination of this Agreement, title to the
Artwork shall transfer from Mist to Trumark upon Trumark's final acceptance of the Work.
Title transfer sbail be self-executing upon Trumark's final acceptance of the Work. Artist
will cooperate in providing to Trumark any title transfer documents .f ntmark may request or
require during or after the Term of this Agreement.
12.2 Risk of Loss, The risk of kiss or damage to the Work shall be borne solely by Artist until
• delivery of the Work to the property. Artist shall take steps to protect the Work from loss or
damage until final acceptance by Trumark. Trumark shall make a good faith effort to
inspect the Work within 15 days after completion so that.Trumark can approve the Work in
a timely fashion.
12.3 Ownership of Documents. Conceptual Design, Design Development Documents,
Construction Documents, Samples, Mock-ups and all other documents prepared and
submitted by Artist to Trumark pursuant to this Agreement shall belong to Trumark. Artist
may retain originals of such documents and items and provide copies to Trumark.
Section 13.13. INSURANCE REQUIREMENTS. Artist shall procure and maintain insurance coverage
that satisfies the requirements set forth on Exhibits C (and the attachments that follow)attached hereto(the
"Insurance Requirements").
13.1 Certificates. Before Artist commences any Work at or prepares or delivers material to the
Property, Artist shall provide Trumark and Trumark Construction Services, Inc. ("Builder')
with both certificates of insurance and additional insured endorsements evidencing
coverage and all specifications as set forth in the Insurance Requirements.
13.2 Failure to Obtain. Should Artist fail to comply with the Insurance Requirements,or should
Artist fall to timely renew the insurance coverage required under the Insurance
Requirements,Trumark shall have the right,at Trumark's election,without obligation, (1) to
obtain such coverage on Artist's behalf, at Artist's expense, from any insurance carrier
selected by Trumarfc in .frumark's sole discretion; or (2) to terminate this Agreement.
Trumark shall have the right to offset the costs of premiums for such insurance against any
sums payable to Artist under this Agreement.
13.3 Wrap-Up•Cpverne. Builder has obtained a project 'wrap-up insurance" or "Owner
Controlled Insurance Program" covering Builder and its subcontractors, and/or Trurnark
and/or Trumark's Builder's expense. Artist shall comply with all requirements of the third
party "wrap-up insurance' administrators as set forth in the Insurance Requirements. It is
understood and agreed that for that part of Artist's services occurring on the Property,
provided that Artist complies with all requirements of the third party wrap up insurance"
administrators as set forth in the Insurance Requirements, and provided further that such
third party "wrap-up insurance" administrators agree to provide such coverage,Artist shall
be insured under Trumark's Owner Controlled Insurance Program coverage capon which he
and his named subcontractors shall be named additional insureds.
Section 14. INDEMNIFICATION AND ARTIST'S RESPOMStBiLITIES, Artist shall indemnify, defend
with counsel mutually selected by Trumark and Artist, and hold harmless Trurnark and its officials, officers,
directors, partners, contractors, employees, agents, and volunteers from and against any and all losses,
liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily
injury, loss of life, or damage to property, or any violation of any federal, stale, or municipal law or
ordinance, to the extent caused, in whole or in pert, by the willful misconduct or negligent acts or omissions
of Artist or its officials, officers, directors, partners, contractors, volunteers, employees, subcontractors, or
agents. The foregoing obligation of Artist shall not apply when the injury, loss of life, damage to property,
or violation of law arises wholly from the negligence or'willful misconduct of Trurnark or its officials,officers.
directors, partners, contractors, employees, agents,or volunteers. it is understood that the duty of Mist to
indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil
Code. Acceptance by Trumark of insurance certificates and endoisernents required under this Agreement
does not relieve Artist from liability under this indemnification and hold harmless clause. This
indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not
such insurance policies shall nave been determined to apply. By execution of this Agreement, Artist
acknowledges and agrees to the provisions of this Section and that it is a material element of consideration,
In the event that Artist or any officials, officers, directors, partners, contractors, volunteers, employees,
subcontractors, or agents of Artist providing services under this Agreement is determined by a court of
competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for
enrollment in PERS as an employee of City, Artist shall indemnify, defend, and hold harmless Trurnark for
the payment of any employee and/or employer contributions for PERS benefits on behalf of Mist and its
officials, officers, directors, partners, contractors. volunteers, employees, subcontractors, and agents, as
well as for the payment of any penalties and interest on such contributions,
Section 15. STATUS OF ARTIST AS INDEPENDENT CONTRACTOR.
15.1 Independent Contractor. Al all timee during the term of this Agreement,Artist shall be an
independent contractor and shall not be an employee of Trurnark. Notwithstanding any
other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Artist
and any of its officials, officers, directors, partners, contractors, volunteers, employees,
subcontractors,and agents providing services under this Agreement shall not qualify for or
become entitled to, and hereby agree to waive any and all claims to, any compensation,
benefit, or any incident of employment by Trurnark and City, including but not limited to
eligibility to enroll in the California Public Employees Retirement System (PERS) as an
employee of City and entitlement to any contribution to be paid by City for employer
contributions and/or employee contributions for PERS benefits,
15.2 Nothing contained in this Agreement shall be construed as limiting the right of Artist to
engage in his profession separate and apart from this Agreement so long as such activities
do not interfere with the performance by Artist of his obligations as set forth in this
Agreement.
15.3 Artist_NQ_Agent., Except as Trumark rimy specify in writing, Artist shall have no authority,
express or implied, to act on behalf of Trumark in any capac,:ty whatsoever as an agent.
Artist shall have no authority, express or implied, pursuant to this Agreement to hind
Trumark to any obligation whatsoever.
Sec i .L 16, LEGAL REQUIREMENTS.
16.1 Governing Law, The laws of the State of California shall govern this Agreement.
16,2 Compliance with Applicable Laws.. Mist and any subcontractors shall comply with all
laws applicable to the performance of the work hereunder,
16.3 Other Governmental Regulations. To the extent that this Agreement may be funded by
fiscal assistance from a governmental entity, Mist and any subcontractors shall comply
with all applicable rules and regulations to which Trumark is hound by the terms of such
fiscal assistance program.
16,4 Licenses and Permits. Artist represents and warrants to Trumark that Artist and its
officials, officers, directors, partners, contractors, volunteers, employees, subcontractors,
and agents have all licenses, permits, qualifications, and approvals of whatsoever nature
that are legally required to practice their respective professions. Artist represents and
warrants to Trumark that Artist and its officials, officers, directors, partners, contractors,
volunteers, employees, subcontractors, and agents shall, at their sole cost and expense,
keep in effect at all times during the term of this Agreement any licenses, permits, and
approvals that are legally required to practice their respective professions. In addition to
the foregoing, Artist and any subcontractors shall obtain and maintain during the terra of
this Agreement valid Business Licenses from City.
16.5 Nondiscrimination and Equal Opportunity. Artist shall not discriminate, on the basis of
a person's race, religion, color, national origin, age, physical or mental :Handicap or
disability, medical condition, marital status, sex, or sexual orientation, against any
employee, applicant for employment, subcontractor, bidder 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 federal, state, and local laws, policies,
rules, and requirements related to equal opportunity and nondiscrimination in employment,
contracting, arid the provision of any services that are the subject of this Agreement,
including but not limited to the satisfaction of any positive obligations required of Artist
thereby,
Section 17. TERMINATION AND MODIFICATION.
17.1 Termination. Trumark may cancel this Agreement at any time and without cause upon
written notification to Artist.
1
Artist mey cancel this Agreement upon thirty(30)days'written notice to Trumarit and shall
include in such notice the reasons for cancellation.
In the event of termination, Artist shad be entitled to compensation for services performed
to the effective date of termination; Trumark, however, may condition payment of such
compensation upon Artist delivering to Trumark any or all docurents. photographs,
computer software, video and audio tapes, and other materials provided to Artist by
Trurnark or prepared by Artist for Trumark in connection with this Agreement.
17.2 Extension. Trumark may, in its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein, Artist understands and
agrees that, if Trumark grants such an extension, Trurnark shall have no obligation In
provide Artist with compensation beyond the maximum amount provided for in this
Agreement. Similarly, unless authorized by Trumark in writing. Trurnark shall have no
obligation to reimburse Artist for any otherwise reimbursable expenses incurred during the
extension period.
17.3 Amendments, The parties may amend this Agreement only by a writing signed by all the
parties.
17.4 Assignment and Subcontracting. Trumark and Artist recognize and agree that this
Agreement contemplates personal performance by Artist and is based upon a
determination of Artist's unique personal competence, experience, and specialized
personal knowledge. Moreover, a substantial inducement to Trurnark for entering into this
Agreement Was and is the professional reputation and competence of Artist. Artist may
not assign this Agreement or any interest therein without the prior written approval of
Trumark. Artist shall not suhr..ontract any portion of the performance contemplated and
provided for herein, other than to the subcontractors noted in the proposal, without prior
written approval of the Contract Administrator, Trumark may assign this Agreement, in its
sole and absolute discretion, at any lime with +ivrlttan notice to Artist, at which point
Trumark shall have no further liability hereunder.
17.5 Survival. All obligations arising prior to the termination of this Agreement, all releases, all
warranties and all provisions of this Agreement allocating liability between Trumark and
Artist shall survive the termination of this Agreement.
17.6 Options upon Breach by Artist. If Artist materially breaches any of the terms of this
Agreement,Trurnark's remedies shall include., but not be limited to, the following:
17.6.1 Immediately terminate the Agreement;
17.6.2 Retain the plans, specifications, drawings, reports, design documents, and any
other work product prepared by Artist pursuant to this Agreement;
17.6.3 Retain a different Artist to complete the work described in Exhi'it A not finished by 1i1
Artist; or
17.6.4 Charge Artist the difference between the cost to complete the work described in
Exhibit A that is unfinished at the time of breach and the amount that Trumark
would have paid Artist pursuant to Section 2 if Artist had completed the work. •
Section 18. KEEPING AND STATErlS of RECORDS.
18.1 Access to Artwork; Inspection of Work and Artwork. Trumark shall have the
reasonably right to, at Its sole expense, inspect the Work,at the fabrication site during any
phase of the project at any time. In the event that at! or part of the Work is created in a
location other than the Project site, Trumark shall have the tight to inspect the Work at any
phase of the project following 48 hours written notice from Trurnark to the Artist, The Artist
shall be responsible for facilitating Trumark's prompt access to Artist's property or the
• property of the lutist's subcontractors where the Work or portions of the Work are being
fabricatcd or installed.
18.2 Status Reports. Artist shall submit written reports regarding the status of the Work,
including the Artwork, as may be reasonably requested by Trumark. Trumark shall
determine the format for the content of such reports. The timely submission of all reports is
a nec.essary and material term and condition of this Agreement. The reports, including any
copies, shall lee submitted on recycled paper and printed on double-sided pages to the
maximum extent possible.
18.3 Artist Availability. Artist or Artist's authorized agent shall be available at Artist's sole
expense for up to 10 visits to Dublin to ensure the proper installation and operation of the
Work.
18.4 Records Created as Part of Artist's._Performance. All reports, data, maps, models,
charts, studies, surveys. photographs, memoranda, plans, studies, specifications, records,
files, or any other documents or materials, in electronic or any other form, that Artist
prepares or obtains pursuant to this Agreement and that relate to the matters covered
hereunder shall be the property of Trumark. Mist hereby agrees to deliver those
documents to 1'rumark upon completion of a phrase under the Agreement and full payment
of Artist for such phase, or termination of this Agreement. it is understood and agreed that
the documents and other materials, including but not limited to those described above,
prepared pursuant to this Agreement are prepared specifically for Trumark (its successors
and assigns) and City and are not necessarily suitable for any future or other use.
Trumark and Mist agree that, until final approval by Trumarlt, all data, plans,
staeeificatians, reports and other documents are confidential and will riot be released to
third parties, except for City,without prior written consent of both parties.
18,5 Artist's Boons and Records. Artist shall maintain any and all ledgers, books of account,
invoices, vouchers, canceled checks, and other records or documents evidencing or
relating to charges for services or expenditures and disbursements charged to Trumark
under this Agreement for a minimum of three (3) years, or for any longer period required
by law, from the date of final payment to the Artist la this Agreement
18.6 Inspection and Audit of Records. Any records or documents that this Agreement
requires Artist to maintain shall be made available for inspection, audit, and/or copying at
any time during regular business hours,upon oral or written request of Trurnark.
Section 19; MISCELLANEOUS PROVISIONS.
19.1 Attornevs' f=eet.. If a party to this Agreement brings any action, including an action for
declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing
party shall he entitled to reasonable attorneys' fees in addition to any other relief to which
that party (nay be entitled.. The court may set such fees in the same action or in a
separate action brought for that purpose.
19.2 Ven_ye,, In the event that either party brings any action against the other under this
Agreement, the parties agree that trial of such action shall be vested exclusively in the
state courts of California in the County of Alameda.
19.3 Several.) ty. If a court of competent jurisdiction finds or rules that any provision of this
Agreement is invalid, void. or unenforceable, the provisions of this Agreement not so
adjudged shall remain in full force and effect. The invalidity in whole 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 Waiver of Breach, The waiver of any breach of a specific provision of this
Agreement does not constitute a waiver of any other breach of that term or any other term
of this Agreement.
19.5 Successors and Asslons. The provisions of this Agreement shall inure to the benefit of
and shall apply to and bind the successors and assigns of the parties.
19.6 Use of Recycled Products, Artist shall prepare and submit all reports, written studies and
other printed material on recycled paper to The extent it is available at equal or Less cost
then virgin paper.
19.7 Conflict of interest. Artist may serve other clients, hut none whose activities within the
corporate limits of City or whose business, regardless of location, would place Artist in a
"conflict of interest,"as that term is defined in the Political Reform Act, codified at California
Government Code Section 81000 el seq.
Artist shah not employ any City official in the work performed pursuant to this Agreement.
No officer or employee of City shall have any financial interest in this Agreement that
would violate California Government Code Sections 1090 et seq.
Artist hereby warrants that it is not now, nor has it been in the previous twelve(12)months,
an employee, agent, appointee, or official of the City. If Artist was an employee, agent,
appointee, or official of the City in the previous twelve months, Artist warrants that it did not
participate in any mariner in the forming of this Agreement. Artist understands that, if this
Agreement is made in violation at Government Code 61090 et.seq., the entire Agreement.
is void and Artist will not be enticed to any compensation for services performed pursuant
to this Agreement, including reimbursement of expenses, and Artist will be required to
reimburse Trumark for any sums paid to the Artist. Artist understands that, in addition to
the foregoing, it may he subject to criminal prosecution for a violation of Government Code
§ 1090 and if applicable, will be disqualified from holding public office in the State of
California.
19,8 Solicitation. Artist agrees not to solicit business at any meeting, focus group,or interview
related to this Agreement,either orally or through any written materials.
19.9 Notices. Any written notice to Artist shall be sent to:
8128 Camelia Street
Berkeley, CA 94710
• Attn:Eric Powell
Any written notice to Trumark shall he sent to:
Trumark Homes
4185 Blackhawk Plaza Circle
Suite 200
Danville, CA 94506
Attn:Garrett Hinds
19,11 Professional _Spal. Where applicable in the determination of
Trumark, the first page of a technical report, first page of design specifications, and each
page of construction drawings shall be slampedlseated and signed by the licensed
professional responsible for the reportldesign preparation. The slamp/seal shall be in a
block entitled "Seal and Signature of Registered Professional with report/design
responsibility," as in the following example.
I �
Seal and Signature of Registered Professional with
itreport/design responsibility.
�_ _ _....__...sue . _.—......_....�.� i
1
19.12 Integration. This Agreement, including the proposal, scope of work, and payment
schedule attached hereto and incorporated herein as Exhibits A,8 an C,represents the
entire and integrated agreement between Trumark and Artist and supersedes all prior
negotiations, representations,or agreements,either written or oral. :••
TRUMARK ARTIST
DEVELOPMENT SOLUTIONS WR,LT,C, ERIC POWELL,a sole proprietor
a Delaware limited liability company
By By:
Na Judd'p it ats Name:
Twig Vice.President Title:
. . .
Date: Date: fit4r/Kg.,1, '.1;177;2--*LY/
Exhibit A Scope of Work
Wallis Ranch: Public Art
Scope of Work
February 6,2015
Phase One:
Three (double)entry gates as depicted in the graphics. One set is approximately 22', 10"wide x 4'high.
Two sets are approximately, 14',8"wide x 4' high each. The exact dimensions of the gates(and ad of the
other elements)will he determined by the dimensions provided by the client. AD works are built in
accordance with ADA guidelines and building codes.
Railing on bridge(Pedestrian protective railing, approximately 240 feet long x 42"high)as depicted in the
graphics.
Phase Two:
Benches: There are three benches total:two benches on the walking trail and one bench in back of Antone
Pavilion. The benches and locations are depicted in the graphics.
Antone Pavilion: Two sculptural screens,one outside and one inside the pavilion. The location is shown
on the graphics, They are composed partly of vintage industrial steel objects,some of which were found on
the Wallis Ranch property. A descriptive plaque will be included with the sculpture. Also Included is an
Interpretive panel.
•
Design/Fabrication Proposal Package
Proposal Narrative
Wallis Ranch was both a cattle ranch and a farm over its 1004 years of use.
This history of the property is rich with stories that will likely never be told.
•
However, white exploring the property I unearthed a fascinating collection of iron objects that tell their own
kind of story about the property's history. These include essential tools that would be ubiquitous to any
farm;pitch forks, plow blades, tractor parts,gears and gear chains, horseshoes and engine parts and more.
These objects have an innate sculptural integrity and beauty that I find to be compelling and inspiring. I
have integrated similar objects in a number of my previous works. An important element of this project is
preserving and celebrating the history of Wallis Ranch,where otherwise that memory might be lost.
i will use these objects as my inspiration, I will use a selection of the actual objects for a sculptural artwork
for Antone Pavilion.
Locations of Artwork
The gates will be placed at tho main entrances to the property,
The railing will he placed on the main entry bridge leading into the properly.
The benches will be placed along the walking trail along the parameter of the properly and in back of
Antone Pavilion.
Anton Pavilion: The sculptural screens will he installed in and on the structure.
Proposed Materials
The artwork will be made out of a combination Corten steel and authentic iron and steel objects from the
actual Wallis ranch property, from other Tri-Valley farms and ranches and from the Artist's collei lion,
Cortee steel is a corrosion-resistant steel, that left uncoated develops an outer layer patina. This patina
protects the steel from additional corrosion. it is a high strength steel alloy that it is used where higher
strength and longer life cycle material are desired.
Cotten has an oxidized, earthy look that is very much in keeping with the aesthetics and color palette of the
homes at Wallis Ranch, but also exactly the color and texture of the iron objects that were culled from the
property. The Corten steel can be sealed and coated with an anti-graffiti coating.
They benches will also be made of Cotten steel. The seats will be made of a sustainable; and very durable
wood. The wood will be sealed and coated with an anti-graffiti coating.
•
•
Visuals!Renderings of Design Concept
Drawings and renderings
Models: As needed
Material Samples
Fabrication
All of the artwork will be fabricated in Artist's studio in Berkeley. This assures high quality control and it
assures Artist's ability to keep the project on schedule.
installation
Artist and his crew will instal/the artworks, with additional subcontractors as needed. Installation will be
coordinated with Trumark and its General Contractor. It is understood that the General Contractor will
provide Artist with notice as to when the site is ready for installation,and will provide free access to the
sites for installations.
The railing posts will he installed in the existing holes on the concrete bridge. The gates will be installed
onto engineered posts that will be designed and built to accommodate the weight of the gates. The
mechanisms for opening and closing the gates will be provided by the client and installed by the contractor.
Artist and his crew will attach the mechanisms to (he gates.
The benches will be installed by bolting(using Titan bolts) the bench footings into the floor (concrete?)
surface where they will sit.
Maintenance of the proposed artwork t materials
•
The only maintenance needed for the artwork is the application of a clear coat on the bench seats(every 5-
10 years) and pericxlic cleaning as needed. Also ail information on the replacement cat the bench seats will
be providnct.
•
•
•
{
Graphics
[TO BE INSERTED BEHIND THIS PAGE]
•
•
I I
E1
i
Bench #3 @ Trail Node
01-- Bench i12 ( "frail Node
•
Bench # 1 @ Antone School
Mitotic School Art Panels
•
•
Bridge Bike Railing
o 200 400 800
9 0 6,,, ,,"*",a;g..w.."1
r-W4,12
WALLIS RANCH ART LOCATIONS
DUBLIN, CALIFORNIA
FEBRUARY 2()ts
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WALLIS RANCH PUBLIC ART:
COMPLETION I PAYMENT SCHEDULE (2-645)
/ COMPLETION
PHASE OF DESCRIPTION OF PHASE By Phase Overall COMPLETION ARTIST FEE
WORK DATE
EXECUTION Execution of Contract 10% 10% (-March 18 ') $128,953.00
Phase I Completion of design development 15% 25% April 10 5193,429.50
proposal and submittal to Client 2015
Phase II 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%completion of fabrication.
(10%includes completion of all
railing frames and posts.)
- -----
Phase III 25%offsite fabrication of the project 10% 55% July 30 $128,953.00
complete. (25%includes fabrication 2015
and installation of all railings.)
Phase IV 50%offsite fabrication of the project 10% 70% October 30 $128,953.00
complete. (50%includes fabrication 2015
of all gates.)
Phase V 100%offsite fabrication of the project 10% 85% January 31 $128,953.00
complete. (100%includes installation 2016
of gates(July 30),fabrication and
installation of benches(Sept 30)and
fabrication and installation of Antoine
Pavillion elements(Dec. 30).)
Phase VI Installation of railings. 5% 90% February 28 $64,476.50
2016
Phase VII Installation of Gates 5% 95% March 31 564,476.501
2016
Phase IIX Installation of Anton Pavilion 5% 100/ March 31 S64,476,50
elements and benches. 2016
Phase IX Close Out 15% 100% April 30 5193,429.50
2016
TOTAL ARTIST FEE $1,289,530
EXHIBIT C
INSURANCE REQUIREMENTS
(a) Before commencing the Work, Artist (hereinafter the 'Subcontractor') shall purchase
and maintain no less that the following insurance coverage, and shall provide Trurnark
Construction Services, Inc. ('Builder") with both Certificates of Insurance and additional
insured endorsements evidencing all such coverage:
(i) Workers' Compensation and Employers I.lability Insurance with statutory benefits
• and limits which shall fully comply with all State and Federal requirements, In an
amount not less than the following:
Coverage A: Statutory Policy Form.
Coverage B: Employer's Liability.
Bodily Injury by Accident: $1,000,000 each accident,
Bodily Injury by Employee: $1,000,000 each employee
Bodily Injury by Disease: $1,000,000 policy limit
Coverage shall include a waiver of subrogation endorsement in favor of Builder,
Trumark (hereinafter"Owner") and any other additional insureds set forth below. •
Subcontractor shall provide its current Workers' Compensation Experience Modifier as
calculated by the Bureau of Workers' Compensation based on the Subcontractor's loss
experience and payroll.
(ii) Commercial Auto Covereae (covering owned autos, leased or hired autos and
non-owned autos) not less than as follows:
Combined Bodily Injury._and_f?iyperiy.Dainare: $1,000,000 combined single limit
per accident bodily injury and property damage.
(iii) property Insurance, aka an Installation Floater, covering the value of all of
Subcontractor's labor and materials installed at the Project (including, without
limitation, coverage against the perils of fire. extended coverage, vandalism and
malicious mischief), which shall remain in effect until Subcontractor's completion of
its Work and acceptance of that Work by Builder. Said coverage shall be in an
amount not less than $250,000.00. Also, Subcontractor shall possess Emplpynt
me
Fractices.Liabillti, which shall remain in effect until Subcontractor's work is complete
and accepted by Builder. Said coverage shall be in an amount not less than
$1,000,000.
(iv) Commercial General Liability for Bodily Injury (including accidental death to any
person and subject to the same limit for each person) and Property Damage with
combined single limits of no less than $5,000,000 per occurrence and in the
aggregate written on an occurrence basis. Limit requirements may be met by any
combination of primary and/or excess/umbrella coverage.
Commercial General Liability forms must include: (a) premises and
operations coverage with no X, C or U exclusions; (h) products and
completed operations coverage (which shall be maintained in effect on an
annual renewal basis until all statutes of limitation and repose applicable
to the Work have expired, or for at least ten (1 0) years following
completion of all Work, whichever is greater); (c) blanket contractual
coverage and a separation of insureds clause; and (d) broad form
property damage including completed operations or its equivalent. Self-
insured retentions and/or deductibles on such insurance shall not exceed
$25,000 per occurrence, and Subcontractor shall be responsible for
payment of such self-insured retention and/or deductible. However, such
insurance coverage forms shall provide that if Subcontractor fails to pay
any such self-insured retention or deductible, then Builder shall 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 sums
payable to Subcontractor under this Contract.
(v) per. signal Liability, if required, with a coverage limit of riot less than $1,000,000
per annum.
(b) If requested by Builder, the above-described insurance shall be on a "per location" or
"per project" basis.
(c) • Subcontractor shall have Subcontractor's insurance company name, by endorsement,
Builder, Owner, and its members, partners. shareholders, officers, directors, employees and
related entities and, if requested, Project lender. including, without limitation, the insureds
named below, as additional insureds. The insurance afforded to each Additional Insured
shall be primary insurance. Any additional insured endorsement shall be at least as broad
as ISO form CG 20 10 11 85. Subcontractor shall provide Builder such .certificates of
coverage and additional insured endorsements prior to commencing Work.
• Castlefake II GP, L.P.
• Development Solutions 2, LLC
Wallis Ranch Investors, LLC
d Trumark Homes LLC, a California limited liability company
• Trumark Companies LLC, a California limited liability
e. Trun'iark Construction Services, Inc.
(d) Subcontractor's insurance policies shall each contain a primary endorsement stating:
"Such coverage as is offered by this Policy for the benefit of the Additional Insured(s) is
primary and any other coverage maintained by such Additional Insureds) shall be non-
contributing with the coverage provided under this Policy."
(e) Subcontractor's insurance policies shall each contain an endorsement containing a
waiver of subrogation (including workers' compensation) against Builder, Owner and any
other additional insureds.
(f) If the Work is to be performed on an attached community there shall be no exclusion
for attached or condominium projects.
(g) There shall be no exclusions for continuing or progressive losses not known by
Subcontractor to exist prior to Policy inception.
(h) Coverage must be on an"occurrence" basis for all insurance. "Claims made" coverage
shall not be acceptable.
(i) Any exclusion pertaining to professional design services shall apply only to such
services provided by the named insured in its capacity as an architect, engineer or surveyor.
(j) All Policies of Insurance shall state, that not less than thirty (30) days written notice will
be given to Builder and Owner prior to cancellation or material change in coverage, and that
such policy or policies are primary, shall be issued by companies acceptable to Builder with
a most recent Best's Rating Guide rating of A or higher, with a Financial Size Category
rating of at feast VII, and licensed to do business in the state in which the Project is located.
If the coverage is canceled or reduced, Subcontractor shall procure and furnish to Builder
before the effective date of such cancellation, certificates of insurance and additional
insured endorsements conforming to the above requirements evidencing renewal or
replacement coverage's. Certificates of insurance stating the above notice provisions and
including any endorsements adding Owner and Builder as additional insured must be
delivered to Builder prior to commencement of any Work under this Contract.
(k) Should Subcontractor fail to obtain the insurance coverage required or should
Subcontractor fail to timely renew the insurance coverage as required, Builder shall have the
right, at Builder's election, (i) to obtain such coverage on Subcontractor's behalf. at
Subcontractor's expense, from any insurance carrier selected by Builder in Builder's sole
discretion; or (ii) to terminate this Contract, and Builder shall retain all remedies hereunder
for breach of this Contract. Builder shall have the right to offset the costs of premium for
such insurance against any sums payable to Subcontractor under this Contract.
(I) Subcontractor shall sign such provide such additional coverage and take such
additional actions as the Project lender may require in connection with its Project loan. •
THE CERTIFICATES MUST BE SIGNED WITH A "WET SIGNATURE' (not stamped).
"Please note that failure to meet the above requirements could result in the delay of
payments due Subcontractor, or a request to cease any work on a project. "
Notwithstanding the foregoing requirements set forth in subparagraph (a)(iii) above
regarding Commercial General Liability insurance, if Exhibit C-1 entitled
"CONSOLIDA'T'ED INSURANCE PROGRAM AND ADDITIONAL TERMS AND
CONDITIONS", together with the exhibits referenced therein are attached to this
Agreement, then that Exhibit shall supersede the requirements of subparagraph (a)(iv)
above.
•
ri
EXHIBIT C-I
CONSOLIDATED INSURANCE PROGRAM
AND ADDITIONAL
TERMS AND CONDITIONS
Consistent with the Agreement, Owner has elected to procure a Consolidated Insurance
Program ("C/P ) for certain insurable risks on the Project. The CIP is procured through
Ironshore Specialty Insurance Company. The CIP shall be administered through
Development Solutions £4 Services ("CiP Administrator"),
The following provisions shall be incorporated into the Agreement as though fully set
forth therein. These provisions may amend, supersede or add to existing language in
the Agreement as sot forth herein. Subcontractor acknowledges and agrees that its
compliance with the terms and conditions of the CIP is a material 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 Exhibit and the Agreement or
Plans and Specifications, the terms of this Exhibit shall control.
Consolidated Insurance Program (CIP)
1. As set forth above, Owner has elected to procure a CIP naming it, as well as
other designated construction participants, including Builder, Subcontractor and other
participants and subcontractors (hereinafter collectively referred to as "Participants"),
for certain risks associated with the Project. The provisions of the Agreement regarding
Subcontractors' obligations to provide General Liability insurance for this Project are
hereby superseded, except as specifically set torth in this Addendum regarding work
away from 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 CIP upon
signing the Agreement. Enrollment 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 CIP through the CIP Administrator. In limited circumstances, an
independent contractor may be exempt from the CIP. In the event of such exemption,
the CIP Administrator shall issue a Certificate of Non-enrollment. Certain
Subcontractors may be ineligible for enrollment into the CIP 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 heroin and in the Agreement.
2. The types of risks covered by the CIP are listed completely in the CIP.
Subcontractor is charged with the responsibility of reviewing and obtaining counsel
regarding the CIP. Owner and Builder make no representations regarding the nature,
quality or limits of the CIP and Subcontractor expressly acknowledges the lack of
reliance upon any representations made by Owner or Builder or their representatives
Tread; 1t13tllll:: -t- Subcontractor1uiti,rls
regarding the nature, quality or limits of the insurance provided by the CIP.
Subcontractor shall hold Owner, Builder and their representatives, including, but not
limited to, CIP Administrators., insurance brokers and/or agents, free and harmless from
any and all claims asserting or alleging that the type and/or amount of coverage
provided under the CIP is inadequate or insufficient. The CIP is intended to be the
primary source of coverage for the risks covered and shall assume primary position to
Subcontractor's insurance in the covered areas of risk.
(a) Civil Code Section 2782.95 Disclosures re the CIP,
pursuant to Civil Code section 2782.95(a), Builder hereby discloses the total
amount or method of calculation of any credit or compensation for premium
required from Subcontractor as follows:
note: refer to Wrap Administrator negotiation for method of calculation.
By attaching hereto as Exhibit C-2 a copy of the wrap insurance policy, or binder or
declaration sheet, Builder discloses, pursuant to Civil Code section 2782.95(b), to the
extent known by Builder, the following information concerning the CIP:
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 term is as set forth in the attached Exhibit C-2;
{
4. the basis upon which the deductible or occurrence is triggered by the
insurance carrier is as set forth in the attached Exhibit C-2;
5, if the policy covers more than one work of improvement, the number of
units, if any, indicated on the application for the insurance policy are as
follows; 94 units; and
6. a good faith estimate of the amount of available limits remaining under the
policy as of this date (based on information from the insurer or broker) is
the full amount of the policy limits unless otherwise specifically noted here:
Disclosures made pursuant to paragraphs (5) and (6) are recognized to be based upon
information at a given moment in time and may not accurately reflect the actual number
of units covered by the policy or the amount of insurance available, if any, when a later
claim is made. Any party receiving a copy of the policy, binder, 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. The Participant's insurance broker or attorney
may not disclose the policy, binder, or declaration to any third party unless required to
do so by law
Tutnnark ttriti.il; -2- Suhi;fittrac(or Initials
(b) The CIP requires satisfaction of a per occurrence self-insured retention in the
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's work) or after completion of the Project, Owner
shall allocate to each subcontractor who was "involved" irs either a properly
damage or bodily injury claim, REGARDLESS 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
job site and sues for a claim that is covered by the CIP; (2) an occurrence
where property of another contractor, subcontractor or third party is damaged
in any way as a result or in connection, directly or indirectly, with the work of the
Subcontractor; or (3) an alleged occurrence where a third party alleges
deficiencies in work that was performed, or materials that were supplied, in
whole or in part by a Participant. Payment of the deductible may be deducted
from amounts otherwise due the involved Subcontractor(s) when Owner or
Builder has incurred the self-insured retention. In the event the amounts due
Subcontractor(s) is Insufficient 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 the self-insured retention is not
an indemnity claim and shall remain uninsured by the CIP. It is a contractual
allocation of the mutual obligations of the insureds under the CIP.
3. Subcontractor acknowledges and agrees that all sub tier contractors who perform
any work on the Project, if any, shall be enrolled in the CIP. Subcontractor is
responsible for and shall take all necessary steps to cooperate with Owner to enroll all
sub tiered contractors into the CIP. Subcontractor shall also be responsible for ensuring
that any and all sub-tier contractors comply with all insurance requirements set forth in
the Agreement, as well as 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 to 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 in the selection of counsel by Owner.
5. Subcontractor, on its behalf and on behalf of its insurers, waives all rights against
parties enrolled in the CIP for damnges that are covered by applicable insurance.
6. The obligations of Subcontractor pertaining to indemnification under Section 9
are excess to the CIP and shall not take effect until and unless the insurance provided
under the CIP is exhausted, inapplicable to the particular claims or otherwise
unavailable.
MinicnurnFurther_lnsc r ric Requ re nts far Subcontractors gnrgited in the CIP:
'l'.'usn<ii'k Initials -3- Subcontractor Initials _-
1. Coverage provided under the CiP is set forth in the insurance policy (ies) in full.
Without modifying any of the terms and conditions of the policy (ies), the coverage is
generally described as General Liability in the limits described in the declarations page
of the policy (ies). The policy (ies) is/are intended to cover third party liability claims
arising out of the personal/bodily injury and property damage claims emanating from the
Project. Subcontractor, in its sole discretion, may elect, but is not required, to procure
its own general liability insurance for this Project. In such an event, said insurance shall
be excess and non contributory to that provided by the CIP.
2. Coverage is not provided under the CIP in the areas described in Exhibit C,
section (a), subsections (1) through (iii), and therefore Subcontractor shall comply with
all requirements of Exhibit C, subsections (i) through (iii) and all other provisions of
Exhibit C applicable thereto.
3. For all claims for damages arising away from the Project site, Subcontractor shall
procure insurance that, at a minimum, meets the requirements of Exhibit C, section (a),
subsection (iv) and all other provisions of Exhibit C applicable thereto.
•
'run tirlc Initials____ _ .4. Subcontractor Initials
EXHIBIT C-2
1
Trumaik: Subconti'avtot:
-1,
Exhibit B
Public Art Location Map
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Exhibit C
Sculpture Area Improvements
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Key Map ry r _ 4 -;' - ,.
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k d;It; ,,,-
Existing strectscape :,-. ; .: ,.
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Sculpture on 25'platform with LED °. ' r 'r ,
lights in paving at base Dark ' ,; `'a
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accent paving t _ t ._.........'.,. ��.�
Black bark mulch ki ,7"!' ".
Entry walk I :4M:,...-.:.:::•:::r.
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re 1 { .I _
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Scale 1'-20'-0' TASSAJARA ROAD
GATES WALLIS RANCH -IMPROVEMENTS
�^ DUBLIN, CALIFORNIA
Exhibit D
Bond Estimate
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1
1
Bond Estimate
Faithful Performance. $300,000
Labor and Materials. $150,000
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Exhibit E
Form of Assignment Agreement
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f
[Form of Assignment Agreement]