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HomeMy WebLinkAboutItem 4.5 - 2521 All-Abilities Playground Public Art Agreeme Page 1 of 2 STAFF REPORT CITY COUNCIL DATE: April 2, 2019 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Dublin Sports Grounds' All-Abilities Playground Public Art Agreement Prepared by: Tegan McLane, Cultural Arts and Heritage Manager EXECUTIVE SUMMARY: The City Council will consider approval of a Public Art Agreement between the City of Dublin and Barbara Grygutis Sculpture LLC to design, fabricate and install a piece of public artwork at the new All-Abilities Playground. STAFF RECOMMENDATION: Adopt the Resolution Approving a Public Art Agreement with Barbara Grygutis Sculpture LLC for a Public Art Project at Dublin Sports Grounds All -Abilities Playground Project. (Attachment 1) FINANCIAL IMPACT: The Public Art Agreement between the City of Dublin and Barbara Grygutis Sculpture LLC is in the amount of $330,000 for design, fabrication, and installation of the artwork. At its February 19, 2019 regular meeting, the City Council approved funding from the Public Art Fund for this project. No general fund dollars are being expended on the project. DESCRIPTION: On February 19, 2019, the City Council unanimously approved the proposed artwork by artist Barbara Grygutis. Staff has negotiated a Public Artwork Agreement with the Artist for design, fabrication and installation of the artwork. Ms. Grygutis's design, titled “Conversation,” features two human heads that appear to be engaged in conversation. The piece highlights the human ability to transcend differences and find common ground through talking with each other. The heads are deliberately designed without gender, age or ethnicity. They stand 22' and 17’ tall respectively and are made of aluminum. Both are lit from within by green LED lights at night. The heads sit on a pathway and have a minimum 60” open passageway through which the viewer can walk or wheel. Laser cut stainless steel words reflecting Dublin's diversity will be embedded in the walkway. Page 2 of 2 The attached Resolution includes the Agreement (Attachment 2), which reflects the scope of services and schedule for completion. Installation of the artwork is currently planned for January 2020, prior to the expected completion of the All -Abilities Playground. Staff has negotiated these deadlines in consultation with the builder. STRATEGIC PLAN INITIATIVE: N/A NOTICING REQUIREMENTS/PUBLIC OUTREACH: The Artist was notified that this item is on the agenda. ATTACHMENTS: 1. Resolution Approving a Public Art Agreement with Barbara Grygutis Sculpture LL C for Public Art Project at Dublin Sports Ground All-Abilities Playground 2. Exhibit A to the Resolution - Public Art Agreement between the City of Dublin and Barbara Grygutis Sculpture LLC ATTACHMENT 1 RESOLUTION NO. XX - 18 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * * * APPROVING A PUBLIC ART AGREEMENT WITH BARBARA GRYGUTIS SCULPTURE LLC FOR A PUBLIC ART PROJECT AT DUBLIN SPORTS GROUNDS ALL-ABILITIES PLAYGROUND PROJECT WHEREAS, the 2018-2023 Capital Improvement Program includes a project to design, fabricate and install permanent public art at Dublin Sports Grounds, in conjunction with the all- abilities playground; and WHEREAS Artist Barbara Grygutis was one of fourteen (14) public artists prequalified in August 2017 to create monumental sculptures for City of Dublin and was a finalist in the Public Safety Complex public art process; and WHEREAS Barbara Grygutis was invited to modify her design proposal submitted for the Public Safety Complex and participate with park designers Gates and Associates in a public outreach workshop on January 12, 2019; and WHEREAS, the public art proposal by Barbara Grygutis received positive feedback from the public and was subsequently recommended by the Heritage and Cultural Arts Commission and Parks and Community Services Commission and approved by the City Council; and WHEREAS, Barbara Grygutis has demonstrated ability and availability to perform said services; and WHEREAS, Barbara Grygutis contracts her artistic services through her company, Barbara Grygutis Sculpture, LLC; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does approve the Agreement with Barbara Grygutis Sculpture, LLC, attached as Exhibit A, and authorizes the City Manager to exe cute the Agreement and make any other minor modifications as necessary to carry out the intent of this Resolution . PASSED, APPROVED AND ADOPTED this 2nd day of April, 2019, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ______________________________ Mayor ATTEST: ATTACHMENT 1 _________________________________ City Clerk Public Art Agreement between the February 19, 2019 City of Dublin and Barbara Grygutis Page 1 of 18 PUBLIC ART AGREEMENT BETWEEN THE CITY OF DUBLIN AND BARBARA GRYGUTIS SCULPTURE LLC THIS AGREEMENT is made by and between the City of Dublin (“City”) and Barbara Grygutis Sculpture LLC (“Artist”) as of February 19, 2019, for the purposes and on the terms and conditions set forth below. RECITALS WHEREAS, the City requires the services of Artist to perform artistic services described in the Agreement for a public art project as described under Section 8.58 of the Dublin Municipal Code; and WHEREAS, the City is authorized by Section 2.36.050 of the Dublin Municipal Code to contract for the specialized services of the artist contemplated by this Agreement; and WHEREAS, Artist is qualified and desires to perform the artistic services required by the City as set forth in this Agreement; and WHEREAS, the City Council, on February 19, 2019, authorized the City Manager to negotiate an agreement between City and Artist for the preparation of a final design, fabrication and installation for a public art sculpture at Dublin Sports Grounds All-Abilities Playground. NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree as follows: AGREEMENT Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Artist shall provide to City the services necessary to provide the artwork (“Work”) described in the Artist Proposal described in Exhibit A, and in the Scope of Work attached as Exhibit B 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 B, the Agreement shall prevail. 1.1 Term of Services. The term of this Agreement shall begin on the date first noted above and shall end on the date of completion specified in Exhibit B, and Artist shall complete the Work described in Exhibit A prior to that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 17. The time provided to Artist to complete the services required by this Agreement shall not affect the City’s right to terminate the Agreement, as provided for in Section 17. 1.2 Standard of Performance. Artist shall perform all services 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 manner and shall conform to the standards of quality normally observed by a person practicing in Artist’s profession. 1.3 Assignment of Personnel. Artist shall assign only competent personnel to perform services pursuant to this Agreement. Public Art Agreement between the February 19, 2019 City of Dublin and Barbara Grygutis Page 2 of 18 1.4 Time. Artist shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Section 1.1 above and to satisfy Artist’s obligations hereunder. Section 2. SCOPE OF WORK: Artist shall provide a final design, fabrication and installation of a monumental public art sculpture titled “Conversation” for the Dublin Sports Grounds All-Abilities Playground public art project as more specifically described in Exhibits A and B of this Agreement. 2.1 The City shall be responsible for providing the Artist, without cost, copies of designs, drawings, reports, and other relevant data needed by the Artist to design and execute the Project. 2.2 The Artist shall, whenever required during the term of this Agreement, present to the City in writing, drawing, or other appropriate media for further review and approval any significant changes in the scope, design, color, size, material, utility, 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 the original concept design included in Exhibit A. 2.3 [intentionally deleted] 2.4. [intentionally deleted] 2.5 No services for which additional compensation will be charged shall be provided by the Artist without the prior written authorization by the City. Section 3. COMPENSATION. City hereby agrees to pay Artist a sum not to exceed $330,000.00 as specified in Exhibit C, notwithstanding any contrary indications that may be contained in Artist’s proposal, for services to be performed under this Agreement; or subject to additional amounts for any revisions requested and change order approved by the City as provided for in Section 2.3 above or elsewhere in this Agreement. In the event of a conflict between this Agreement and Artist’s proposal, attached as Exhibit A, regarding the amount of compensation, the Agreement shall prevail. City shall pay Artist for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified in Exhibit C shall be the only payments from City to Artist for services rendered pursuant to this Agreement. Artist shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City, Artist shall not bill City for duplicate services performed by more than one person. Artist and City acknowledge and agree that compensation paid by City to Artist under this Agreement is based upon Artist’s estimated costs of providing the services 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. City therefore has no responsibility for such contributions beyond compensation required under this Agreement. 3.1 Invoices. Artist shall submit invoices as specified in Exhibit B and C, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information:  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; Public Art Agreement between the February 19, 2019 City of Dublin and Barbara Grygutis Page 3 of 18  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 Total Payment. City shall pay for the services to be rendered by Artist pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Artist in rendering services pursuant to this Agreement. City 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, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. 3.3 Payment of 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 upon Termination. In the event that the City or Artist terminates this Agreement pursuant to Section 17, the City shall compensate the Artist for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Artist shall maintain adequate logs and timesheets in order to verify costs incurred to that date. 3.5 Authorization 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 the Contract Administrator. Section 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 services required by this Agreement. City shall make available to Artist only the facilities and equipment listed in Exhibit B, and only under the terms and conditions set forth herein. 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 the City. Failure to conform to this provision may be cause for termination of this Agreement, at the sole option of the City. 5.2 The Artist shall be responsible for providing services described in Exhibit B, 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 $330,000. The Artist shall, without additional compensation, correct or revise any errors, omissions, or other deficiencies in his/her Work. 5.3 The Artist shall complete the fabrication and installation of the Work in substantial conformity with the attached Exhibit B, Scope of Work. 5.4 The risk of loss or damage to the Work shall be borne by the Artist until final acceptance by City. The Artist shall take such measures as are necessary to protect the Work from loss or damage until final acceptance by City. Public Art Agreement between the February 19, 2019 City of Dublin and Barbara Grygutis Page 4 of 18 Section 6. TIMELY PROVISION OF SERICES; DAMAGES FOR DELAYED PERFORMANCE: The parties agree that in the performance of the terms and requirements of this Agreement by the Artist that time is of the essence. Artist shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary for satisfactory performance of Artist's obligations pursuant to this Agreement. 6.1 Damages for Delayed Performance. Subject to reasonable proof and documentation confirming the same submitted by the City, Artist shall be liable for all incidental and consequential damages reasonably resulting, directly or indirectly, from delays in performance caused by Artist's intentional or negligent acts or omissions. Damages may include, but are not limited to the cost to retrofit the Work installation area should Artist not meet installation schedule as specified in Exhibit B. The Artist shall not be liable to City for damages resulting from delays caused by force majeure or by acts or omissions of City, Architect or the General Contractor; or third party vandalism. 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 City whenever it is practicable to do so, considering the facts and circumstances of the Work, the Project, the Architect, the General Contractor and the Client. City 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 30 days (whether consecutive or nonconsecutive), City 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 City undertakes to complete the Work, City shall give due consideration to Artist’s suggestions, and Artist may disclaim authorship of the Work. If City 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 City in completion and installation of the Work. In case of incapacity exceeding 30 days, the following person shall be Artist’s representative vis-à-vis the City for purposes of this Section 6 unless otherwise directed in writing by the Artist: Katie McCann Studio Manager Barbara Grygutis Sculpture LLC PO Box 3028 Tucson AZ 85702 katie@barbaragrygutis.com 520-302-1474 Section 7. APPROVAL AND FINAL ACCEPTANCE OF ARTWORK. Payment does not imply acceptance of work. The granting of any payment by City, or the receipt thereof by Artist, shall in no way lessen the 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 City and in such case must be replaced by Artist without as soon as possible. 7.1 The granting or withholding of any approval by the City shall be determined by the City in its sole and reasonable discretion. However, the City shall approve all deliverables if they materially conform to plans or Contract Documents previously approved by the City. If the City withholds approval of any deliverables or Phase, pursuant to paragraph 7.2 below, it shall provide written notice to Artist of the reason for withholding approval and provide Artist with an opportunity to cure within a reasonable time frame in consultation with Artist. Public Art Agreement between the February 19, 2019 City of Dublin and Barbara Grygutis Page 5 of 18 7.2 Final Acceptance. Artist shall advise the City in writing when Artist has completed all obligations, services and deliverables under this Agreement and all modifications. The City 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. Unless otherwise agreed by the parties, the Artist shall have thirty (30) days from dispatch of the Notice of Response to cure any defects in Artist’s performance identified in the City’s Notice of Response. The Artwork shall not be officially accepted by City unless the City has issued a resolution of Final Acceptance. City shall make a good faith effort to make a determination as to Final Acceptance promptly. 7.3 Public Art Collection. Upon Final Acceptance, the City shall accession the Artwork into the Public Art Collection. Section 8. WARRANTIES/STANDARDS 8.1 Unique. Artist warrants that the design of the Artwork as expressed in the Proposal, Exhibit A, is an edition of one, and that neither Artist nor Artist’s agents will execute or authorize another to execute another work of the same exact image, design, dimensions and materials as the Artwork. It is understood and agreed that Artist has created and may create similar artworks as part of a series. 8.2 Warranty of Title. Artist represents and warrants that Artist is the sole author of the Artwork and that Artist is the sole owner of any and all copyrights pertaining to the Artwork. Artist further represents that the Artwork 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 Artwork or any parts of the Artwork. 8.3 The Artist shall faithfully perform the work required under this Agreement in accordance with standards of care, skill, training, diligence, and judgment provided by highly competent professionals who perform work of a similar nature to the Work described in this Agreement. Artist shall assign only competent personnel to perform services pursuant to this Agreement. In the event that any Artist employee, agent or assigned personnel is convicted of any crime or offense, guilty of serious misconduct or fails or refuses to comply with the written policies or reasonable directive of the City in the connection performance hereunder, Artist agrees to reassign or terminate said individual within three (3) days of written notice by City. 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 by the City. The Artist shall deliver the Work to the City free and clear of any liens 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 Safety. 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 in a manner that was reasonably foreseeable at any time during the term of this Agreement. Public Art Agreement between the February 19, 2019 City of Dublin and Barbara Grygutis Page 6 of 18 8.6 Warranty of Acceptable Standard of Display and Operation. Artist represents and warrants that: 8.6.1 Occasional cleaning and repair of the Artwork and any associated working parts and/or equipment will maintain the Work within an acceptable standard of public display; 8.6.2 Reasonably 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, the 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 City. Section 9. MAINTENANCE OF ARTWORK 9.1 Unless specifically provided in this Agreement, Artist shall not be responsible for ongoing maintenance of the Artwork. 9.2 Artist shall provide the City with a General Maintenance Plan for the Artwork, with a detailed description of future anticipated maintenance requirements; a recommended maintenance schedule; anticipated and required care and/or replacement/upgrade of any part of the Artwork 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 Artwork. 9.3 The Artwork shall be durable, taking into consideration that the installation site is an unsecured public 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 The City shall make its best effort to ensure that all maintenance and repairs to works of art are accomplished in accordance with any maintenance and repair instructions the artist has provided to the City at the time of accession, and that all such maintenance and repairs adhere to the highest professional standards of artwork conservation. However, City is not required by this Agreement to maintain the Artwork to any particular standard. City may determine to allow the Artwork to deteriorate in accordance with the Artwork’s temporary life span, if deemed appropriate by City or if City lacks sufficient funds for required maintenance and/or conservation. If the Artwork suffers deterioration, City shall have sole discretion to determine whether to remove the Artwork from display as a result of deterioration, whether to replace any portion of the Artwork or translate any component into new media, or whether to maintain the Artwork on display despite its deteriorated condition. City agrees to consult with Artist in good faith in writing in advance of making any decision to destroy or de-access the Work and as further set forth below in 9.5 and paragraph 10. Public Art Agreement between the February 19, 2019 City of Dublin and Barbara Grygutis Page 7 of 18 9.5 The anticipated life span of the Artwork is 100 years from the date of final acceptance by the City. After that time, the City in its sole discretion may re-evaluate the Artwork 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 Artwork. If the City determines that, through decay, vandalism or other forces, the Artwork has lost its integrity to the point where it should be destroyed, the City shall first offer the Artwork to Artist’s estate free of charge and in writing. Section 10. ARTIST’S RIGHTS; CITY’S OWNERSHIP RIGHTS 10.1 The City intends to display the Artwork as originally created by Artist in Exhibit A and to maintain the Artwork in good condition. Public artworks commissioned by the City are sometimes integrated into their site, such that they become an integral, permanent and site-specific part of the building’s architecture or landscaped environment and removal of the artwork would result in significant changes to the artwork and the building’s architecture. City, however, shall preserve complete flexibility to operate and manage City property in the public’s interest. Therefore, City retains the right to alter the Artwork in City’s sole judgment, after good faith consultation with Artist as further set forth herein. For example, City may alter the Artwork to eliminate hazard, to comply with the ADA, to otherwise aid City in the management of its property and affairs, or through neglect or accident. If, during or after the term of this Agreement, City finds the Site to be inappropriate, City has the right to install the Artwork at an alternate location that City chooses in its sole discretion. If the Artwork is free-standing such that it can be removed without significant damage to the Artwork or the Site, and if the City authorizes the removal of the Artwork, the City shall take reasonable precautions to minimize alteration of the Artwork during removal. 10.2 With respect to the Artwork 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 City, its officers, agents, employees, successors and assigns, arising under the federal Visual Artists Rights Act (and 113(d)), the California Art Preservation Act (Cal. Civil Code §§987 et seq.), and any other local, 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 art. If the Artwork is incorporated into a building such that the Artwork cannot be removed from the building without alteration of the Artwork, Artist waives any and all such claims against any future owners of the site, and its agents, officers and employees, for alteration of the Artwork. 10.3 If City intends to take any action with respect to the site or the Artwork that would alter the Artwork, other than routine cleaning and maintenance, the following procedures shall apply: 10.3.1 Notice. Where time permits, City shall make reasonable good faith efforts to notify Artist at least sixty (60) calendar days prior to authorizing any alteration of the Artwork, at the last phone number or address provided by Artist to the City’s Contract Administrator. Where time does not permit prior to alteration of the Artwork – for example, in cases of public hazard, accident or unauthorized alteration. City shall notify Artist within thirty (30) calendar days after such alteration. 10.3.2 Consultation. After receiving such notice, Artist shall consult with City to determine whether the Artwork can be restored or relocated, and to attempt to come to a mutually agreeable plan for disposition of the Artwork. Such consultation shall be without charge by Artist unless otherwise specifically agreed in writing. If City intends to remove the Artwork, Public Art Agreement between the February 19, 2019 City of Dublin and Barbara Grygutis Page 8 of 18 Artist shall consult regarding methods to minimize or repair any Alteration to the Artwork caused by such removal and the potential costs of such removal. 10.3.3 Restoration. If the Artwork is altered, with or without prior notice to Artist, and City intends to maintain the Artwork on display, City shall make a reasonable good faith effort to contact artist first and negotiate to engage Artist in the restoration of the Artwork and to compensate Artist for Artist’s time and efforts at fair market value, which may be the subject of a future Agreement between Artist and City. However, City has no obligation under this Agreement to restore the Artwork to its original condition, to compensate Artist for any restoration work, or to maintain the Artwork on display. If Artist fails or refuses to negotiate with City in good faith with respect to any restoration, City may contract with any other qualified art conservator art or artist for such restoration. During Artist’s lifetime, City shall make best efforts not to display or de-accession only a portion of the Artwork without Artist’s consent. 10.3.4 Removal by Artist. Where time permits, if City intends to take action that will destroy or significantly alter the Artwork, such as destruction of all or part of the site, and City determines that it will not remove the Artwork itself, City shall allow Artist to remove the Artwork at Artist’s expense within 60 days of notice from the City of the need to remove the Artwork, in which case title shall revert to Artist. If Artist fails to remove the Artwork within that 60 day period, City may alter the Artwork in any manner, including destroying it, in City’s sole discretion. 10.3.5 Remedies. If City breaches any of its obligations under this Section, Artist’s remedies shall be limited as follows: If City inadvertently fails to provide a required prior notice of alteration, City will provide notice as soon as it discovers the omission, and before alteration of the Artwork if that remains possible. If City alters the Artwork without providing Artist a required prior notice of alteration, Artist shall be given the first right of refusal to restore the Artwork at the same location and City shall make reasonable efforts to provide funding for the restoration. If City funds cannot be made available after reasonable efforts are made to secure such funding, Artist may, but is not obligated to, restore the Artwork at Artist’s expense. If Artist elects not to restore the Artwork, City may retain another artist or conservator to restore it, or may Alter the Artwork in any manner, at City’s sole discretion. 10.4 If City alters the Artwork without Artist’s consent in a manner that is prejudicial to Artist’s reputation, Artist retains the right to disclaim authorship of the Artwork in accordance with California Civil Code §987(d) and 17 U.S.C. §106A(a)(2). 10.5 Except as provided in this Agreement, with respect to third parties who are not officers, employees, agents successors or assigns of City, Artist retains Artist’s moral rights in the Artwork, as established in the Visual Artists Rights Act (17 U.S.C. §§106A 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 Artist from pursuing a claim for alteration of the Artwork against a third party who is not an officer, employee, agent successor or assign of City. City has no obligation to pursue claims against third parties to remedy or prevent alteration of the Artwork. However, as owner of the Artwork, City may pursue claims against third parties for damages or to restore the Artwork if the Artwork has been altered without City’s authorization. Section 11. INTELLECTUAL PROPERTY AND PUBLICITY RIGHTS Public Art Agreement between the February 19, 2019 City of Dublin and Barbara Grygutis Page 9 of 18 11.1 Copyright. Subject to usage rights and licenses granted to City 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 City’s Intellectual Property License. Artist grants to City, and to City’s agents, authorized contractors and assigns, a non-exclusive and irrevocable license to do the following with respect to the Work, the Artwork, 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. City may use and display the Work (to the extent the Work includes graphic representations or models) and the Artwork. To the extent the Work involves design elements that are incorporated by City into the design of the site, City may implement such elements at the site, provided Artist approves any design elements made by the City and is given appropriate attribution as provided herein. 11.2.2 Reproduction and Distribution. City may make and distribute, and authorize the making, display and distribution of, photographs and other 2-dimensional reproductions. City may use such reproductions for any City-related purpose, including advertising, educational and promotional materials, brochures, books, flyers, postcards, print, broadcast, film, electronic and multimedia publicity, gifts for City benefactors, documentation of City’s Public Art Collection, and catalogues or similar publications. City shall ensure that such reproductions are made in a professional and tasteful manner, in the sole and reasonable judgment of the City. The proceeds from the sale of any such reproductions shall be used first to maintain the Work and thereafter to support City’s Public Art Collection. 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 Artwork with appropriate credit to the City. 11.2.3 Public Records Requests. Any documents provided by Artist to City are public records and City may authorize third parties to review and reproduce such documents pursuant to public records laws, including the San Francisco Sunshine Ordinance and California Public Records Act. 11.3 Third Party Infringement. The City is not responsible for any third party infringement of Artist’s copyright and not responsible for protecting the intellectual property rights of Artist. If the City has actual knowledge of third party infringement of Artist’s copyright, it will notify Artist when reasonable. 11.4. Credit. In connection with all use, display and sale of the Work or in reproductions in merchandise by the City under this paragraph 11, each shall contain a credit to the Artist and a copyright notice substantially in the following form: “Barbara Grygutis (c) 2019” The Artist shall use his/her best efforts to include a credit reading substantially "An original work commissioned by the City of Dublin, California" in any public showing under the Artist's control of reproductions of the Work. Public Art Agreement between the February 19, 2019 City of Dublin and Barbara Grygutis Page 10 of 18 11.5 Publicity. City shall have the right to use Artist’s name, likeness, and biographical information, in connection with the display or reproduction and distribution of the Artwork including all advertising and promotional materials regarding City or the City. Artist shall be reasonably available to attend any inauguration or presentation ceremonies relating to the public dedication of the Artwork. 11.6 Trademark. [intentionally deleted] 11.7 Resale Royalty. If City sells the Artwork as a fixture to real property, and if the resale value of the Artwork is not itemized separately from the value of the real property, the parties agree that the resale price of the Artwork shall be presumed to be less than the purchase price paid by City under this Agreement. Thus, City has no obligation to pay resale royalties pursuant to California Civil Code §986 or any other law requiring the payment of resale royalties. If City sells the Artwork as an individual piece, separate from or itemized as part of a real property transaction, City shall pay to Artist a resale royalty to the extent required by law, based upon the sale price of the Artwork. 11.8 If for any reason the proposed design is not implemented, all rights to the proposed artwork shall be retained by the Artist. The City shall have no right to implement the proposed artwork, whether or not protected by copyright, unless and until the City and the Artist enter into a subsequent agreement for the implementation of the proposed design. Section 12. OWNERSHIP OF RESULTS AND RISK OF LOSS 12.1 Title Transfer. Except in the case of early termination of this Agreement, title to the physical Artwork shall transfer from Artist to City upon the City’s Final Acceptance of the Artwork. Title transfer shall be self-executing upon City’s Final Acceptance. Artist will cooperate in providing to City any title transfer documents City may request or require during or after the Term of this Agreement. 12.2 Risk of Loss. The risk of loss or damage to the Artwork shall be borne solely by Artist until Final Acceptance of the Artwork by the City. Artist shall take steps to protect the Artwork from loss or damage. The City staff shall in good faith inspect the Artwork within 15 days after completion so that the City can approve the Artwork by resolution in a timely fashion. 12.3 Ownership of Documents. Physical possession and ownership of Artist’s Original Conceptual Design, Design Development Documents, Construction Documents, Samples, Mock-ups and all other documents prepared and submitted by Artist to the City pursuant to this Agreement shall belong to the City. It is expressly understood that Artist shall retain the copyrights in said documents and may retain originals of such documents and items and provide copies to City. Section 13. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Artist, at its own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Artist and its agents, representatives, employees, and subcontractors. Artist shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects to the City. Artist shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Artist's bid. Artist shall not allow any subcontractor to commence work on any subcontract until Artist has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. 13.2 Commercial General and Automobile Liability Insurance. Public Art Agreement between the February 19, 2019 City of Dublin and Barbara Grygutis Page 11 of 18 13.2.1 General requirements. Artist, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, TWO MILLION DOLLARS ($2,000,000.00) aggregate, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non-owned automobiles. 13.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (ed. 11/88) or Insurance Services Office form number GL 0002 (ed. 1/73) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90) Code 8 and 9 (“any auto”). No endorsement shall be attached limiting the coverage. 13.2.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as an endorsement to the policy: a. City and its officers, employees, agents, and volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of activities performed by or on behalf of Artist, including the insured’s general supervision of Artist; products and completed operations of Artist; premises owned, occupied, or used by Artist; and automobiles owned, leased, or used by the Artist. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or volunteers. b. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis. c. 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. d. Any failure of Artist to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers. e. An endorsement shall state that coverage shall not be canceled except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Artist shall notify City within 14 days of notification from Artist’s insurer if such coverage is suspended, voided or reduced in coverage or in limits. Public Art Agreement between the February 19, 2019 City of Dublin and Barbara Grygutis Page 12 of 18 13.3 All Policies Requirements. 13.3.1 Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII. 13.3.2 Verification of coverage. Prior to beginning any work under this Agreement, Artist shall furnish City with certificates of insurance and with original endorsements effecting coverage required herein. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 13.3.3 Subcontractors. Artist shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. 13.3.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon a determination that the coverages, scope, limits, and forms of such insurance are either not commercially available, or that the City’s interests are otherwise fully protected. 13.3.5 Deductibles and Self-Insured Retentions. Artist shall disclose to and obtain the approval of City for the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. During the period covered by this Agreement, only upon the prior express written authorization of Contract Administrator, Artist may increase such deductibles or self- insured retentions with respect to City, its officers, employees, agents, and volunteers. 13.3.6 Notice of Reduction in Coverage. In the event that any coverage required by this section is reduced, limited, or materially affected in any other manner, Artist shall provide written notice to City at Artist’s earliest possible opportunity and in no case later than five days after Artist is notified of the change in coverage. 13.4 Remedies. In addition to any other remedies City may have if Artist fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Artist’s breach:  Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;  Order Artist to stop work under this Agreement or withhold any payment that becomes due to Artist hereunder, or both stop work and withhold any payment, until Artist demonstrates compliance with the requirements hereof; and/or  Terminate this Agreement. Section 14. INDEMNIFICATION AND ARTIST’S RESPONSIBILITIES. Artist shall indemnify, defend with counsel mutually selected by the City and Artist, and hold harmless the City and its officials, officers, 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 Public Art Agreement between the February 19, 2019 City of Dublin and Barbara Grygutis Page 13 of 18 federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Artist or its employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character of their work. The foregoing obligation of Artist shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Artist or its employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or violation of law. It is understood that the duty of Artist to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements 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 have 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 employee, agent, or subcontractor 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 City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Artist or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. Section 15. STATUS OF ARTIST AS INDEPENDENT CONTRACTOR. 15.1 Independent Contractor. At all times during the term of this Agreement, Artist shall be an independent contractor and shall not be an employee of City. City shall have the right to control Artist only insofar as the results of Artist's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Artist accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Artist and any of its employees, agents, and subcontractors 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 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/her profession separate and apart from this Agreement so long as such activities do not interfere with the performance by Artist of his/her obligations as set forth in this Agreement. 15.3 Artist No Agent. Except as City may specify in writing, Artist shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Artist shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. Section 16. LEGAL REQUIREMENTS. 16.1 Governing Law. The laws of the State of California shall govern this Agreement. 16.2 Compliance with Applicable Laws. Artist and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. Public Art Agreement between the February 19, 2019 City of Dublin and Barbara Grygutis Page 14 of 18 16.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Artist and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. 16.4 Licenses and Permits. Artist represents and warrants to City that Artist and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Artist represents and warrants to City that Artist and its employees, agents, any subcontractors 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 term 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, and 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. 16.6 Prevailing Wage. Artist shall comply with any applicable state and local laws regarding payment of prevailing wage for Public Works projects. Section 17. TERMINATION AND MODIFICATION. 17.1 Termination. City may cancel this Agreement in the event of a material breach by Artist, upon thirty (30) days written notification to Artist and shall include in such notice the basis of such material breach, and provide Artist with an opportunity to cure, if curable, upon good faith consultation between the parties within thirty days (30), unless otherwise agreed in writing by the parties. Artist may cancel this Agreement upon thirty (30) days’ written notice to City and shall include in such notice the reasons for cancellation and provide the City with an opportunity to cure, if curable, upon good faith consultation between the parties. In the event of termination, Artist shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Artist delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Artist or prepared by or for Artist or the City in connection with this Agreement. 17.2 Extension. City 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 City grants such an extension, City shall have no obligation to provide Artist with compensation beyond the maximum amount provided for in this Agreement City shall have no obligation to reimburse Artist for any otherwise reimbursable expenses incurred during the extension period. Notwithstanding the foregoing, if City is responsible for the delay requiring an extension longer than three (3) months, such reimbursements will be paid to Artist. Public Art Agreement between the February 19, 2019 City of Dublin and Barbara Grygutis Page 15 of 18 17.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 17.4 Assignment and Subcontracting. City 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 City 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 the Contract Administrator. Artist shall not subcontract 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. 17.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City 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, City’s remedies shall include, but not be limited to, the following: 17.6.1 Terminate the Agreement upon thirty (30) days written notice to Artist setting forth the reasons for termination and providing an opportunity for Artist to cure any claimed breach within an appropriate time period, to be agreed upon by the parties in good faith consultation, and all as set forth above in 17.1. 17.6.2 The City may have the Work completed by Artist’s fabricator, and in such event, the City may retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Artist pursuant to this Agreement; If the City does not complete or intend to complete the Work, then all of said plans, specifications, etc. shall be returned to Artist promptly. 17.6.3 Have the Artist’s fabricator complete the work described in Exhibit A not finished by Artist in coordination with Artist; 17.6.4 Pursue any other remedy in law or equity. 17.6.5. Material breach shall mean violation of provisions of the Agreement that go to the heart of the intention of the parties for the Artist to create the Work commissioned by the City, including a breach of any express warranty.. Section 18. KEEPING AND STATUS OF RECORDS. 18.1 City Access to Artwork; Inspection of Work and Artwork. City shall have the reasonable right to, at its sole expense, inspect the Work, including the Artwork, at the fabrication Site during any phase of the project at any time. In the event that all or part of the Work is created in a location other than the Site, the City shall have the right to inspect the Work, including the Artwork, at any phase of the project following ten (10 )days written notice from the City to the Artist. The Artist shall be responsible for facilitating City’s prompt access to Artist’s property or the property of the Artist’s subcontractors where the Work or portions of the Work are being fabricated or installed. Public Art Agreement between the February 19, 2019 City of Dublin and Barbara Grygutis Page 16 of 18 18.2 Status Reports. Artist shall submit written reports regarding the status of the Work, including the Artwork, as may be reasonably requested by the City. The City shall determine the format for the content of such reports. The timely submission of all reports is a necessary and material term and condition of this Agreement. Reports may be sent via email with electronic images in jpeg format. 18.3 Artist Availability. Artist or Artist’s authorized agent shall be available at Artist’s sole expense for up to 2 visits to Dublin to ensure the proper installation and operation of the Artwork. During each visit to Dublin, unless otherwise agreed upon by the City, the Artist’s visit shall last for at least a full 8 hour day. 18.4 Records Created as Part of Artist’s Performance. With the exception of model submitted with initial proposal, 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 the City, except that the Artist shall retain copyright therein. Artist hereby agrees to deliver copies of those documents to the City upon termination of the Agreement if the City so requests. 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 the City and are not necessarily suitable for any future or other use. City and Artist agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties. It is also agreed that proposal model remains property of the Artist and will be returned to Artist after the finished sculpture is installed. 18.5 Artist’s Books 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 the City 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 to this Agreement. 18.6 Inspection and Audit of Records. Any records or documents that Section 9.2 of 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 the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement. Section 19. MISCELLANEOUS PROVISIONS. 19.1 Attorneys’ Fees. 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 be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 19.2 Venue. 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 Severability. 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 Public Art Agreement between the February 19, 2019 City of Dublin and Barbara Grygutis Page 17 of 18 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 Assigns. 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 than virgin paper. 19.7 Conflict of Interest. Artist may serve other clients, but 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 et seq. Artist shall 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 manner in the forming of this Agreement. Artist understands that, if this Agreement is made in violation of Government Code §1090 et.seq., the entire Agreement is void and Artist will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Artist will be required to reimburse the City for any sums paid to the Artist. Artist understands that, in addition to the foregoing, it may be 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 Contract Administration. This Agreement shall be administered by the City Manager or his/her designee ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 19.10 Notices. Any written notice to Artist shall be sent to: Barbara Grygutis Barbara Grygutis Sculpture LLC P.O. Box 3028 Tucson, AZ 85702 barbara@barbaragrygutis.com [continued on next page] Public Art Agreement between the February 19, 2019 City of Dublin and Barbara Grygutis Page 18 of 18 Ground deliveries only to: 135 South 6th Ave. Suite C Tucson, AZ 85701 Any written notice to City shall be sent to: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 (925) 833-6645 19.11 Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility," as in the following example. _________________________________________ Seal and Signature of Registered Professional with report/design responsibility. 19.12 Integration. This Agreement, including the proposal, scope of work, and payment schedule attached hereto and incorporated herein as Exhibits A, B and C, represents the entire and integrated agreement between City and Artist and supersedes all prior negotiations, representations, or agreements, either written or oral. CITY OF DUBLIN ARTIST ____________________________ ______________________________ Chris Foss, City Manager Barbara Grygutis Sculpture LLC Attest: ____________________________ Caroline Soto, City Clerk Approved as to Form: ____________________________ John Bakker, City Attorney 2559640.1 EXHIBIT A PROPOSAL Attached is Artist’s Proposal at the time of the Agreement date. “Proposal” shall mean the proposed visual, aesthetic, and artistic intent and design of the Artwork incorporated in the Contract Documents approved by the Dublin City Council. The most recent design approved by the Dublin City Council is incorporated herein by reference and is binding unless or until changes are approved by resolution of the Dublin City Council. Artist’s Proposal shall be automatically superseded by any Contract Documents that are later approved by the City Council. Artist’s proposal will be developed, fabricated and installed in accordance with Exhibit B: Scope of Work. ALL ABILITIES PLAYGROUD ARTWORK PROPOSAL FOR THE CITY OF DUBLIN, CA ARTWORK TITLE: CONVERSATION PRESENTED BY BARBARA GRYGUTIS BARBARA GRYGUTIS SCULPTURE LLC Barbara Grygutis Sculpture LLC PO Box 3028, Tucson, AZ 85702-3028 | 520.882.5572 | barbara@barbaragrygutis.com | www.barbaragrygutis.com © BARBARA GRYGUTIS January 2019 DUBLIN, CA – ALL ABILITES PLAYGROUD ARTWORK PROPOSAL Page 1 Artist Statement and Narrative Description CONVERSATION is the title for the work of art which I propose for the City of Dublin Public Safety Complex. The work of art is designed to emphasize and highlight a fundamental human interaction - the ability to listen - and the ability to dialogue and engage in conversation. noun a talk, especially an informal one, between two or more people, in which news and ideas are exchanged. synonyms: discussion, talk, cat, gossip, tête-à-tête, heart-to-heart, head-to-head, exchange, dialogue, parley, consultation, conference; • The work of art is composed with two monumental sculptures, each of which shape is an outline of the human head. The outline of the head is generic, and does not convey gender or race, it is simply human. • The outline of the head is taken from the head silhouette in computer manuals (this image is available on the internet.) • The human head silhouette is symbolic of our humanity. • The work is designed to create a strong recognizable visual image for the "all abilities playground". • Each sculptural head is rendered in a different manner. One sculpture is more transparent, while the other less transparent, but more complex in its system of transparency. • The two sculptures symbolize our differences and similarities. • The two sculptural heads face each other to convey engagement and CONVERSATION. • The passageways through the sculptures symbolize engagement, • The work of art is designed to embrace our shared humanity. Public Interaction with the Artwork • The work is designed for pedestrian engagement. • Each sculpture is punctuated with a passage way through which the viewer is invited to walk. • The two passageways are joined by a horseshoe shaped walkway that connects to the City of Dublin sidewalk. • The view into the sculptures while standing inside the passageway creates a moment when the pedestrian is engulfed in the sculpture and becomes a part of the sculptural CONVERSATION. Barbara Grygutis Sculpture LLC PO Box 3028, Tucson, AZ 85702-3028 | 520.882.5572 | barbara@barbaragrygutis.com | www.barbaragrygutis.com © BARBARA GRYGUTIS January 2019 DUBLIN, CA – ALL ABILITES PLAYGROUD ARTWORK PROPOSAL Page 2 Proposed Materials • Both sculptures will be fabricated with aluminum. • Aluminum does not rust and is the most durable of metals. • The larger sculpture will be fabricated with laser cut aluminum plate. • The smaller sculpture will be fabricated with perforated aluminum plate. • Each sculpture will have 2 lamps placed inside, to illuminate the work at night. • Sample materials accompany this proposal. Proposed Dimensions Sculpture A : 22 feet high - 20 feet wide - 2.5 feet deep Passage way - 5 feet wide to accommodate wheel chair passage Sculpture B : 17 feet high X 16 feet wide X 2.5 feet deep Passage way- 5 feet wide to accommodate wheel chair passage Sidewalk: 5 feet wide Words: 2 feet long Use of Words embedded in Walkway • A sidewalk / walkway will connect the two sculptures metaphorically and visually. • The walkway will be 5' wide and horseshoe shaped. • It will invite the viewer from the public sidewalk to walk to and through the sculptures. • Inspirational words, chosen by the public will punctuate the walkway. • The words will be laser cut in stainless steel and embedded in the sidewalk. • A sample full size word accompanies this proposal. Barbara Grygutis Sculpture LLC PO Box 3028, Tucson, AZ 85702-3028 | 520.882.5572 | barbara@barbaragrygutis.com | www.barbaragrygutis.com © BARBARA GRYGUTIS January 2019 DUBLIN, CA – ALL ABILITES PLAYGROUD ARTWORK PROPOSAL Page 3 Lighting • All installed light fixtures will be LED technology. • The lamps I use are rated for 10 years and have a guaranteed replacement by the manufacturer for a five-year period from date of purchase. • The sculptures will be lit from within. • The lighting system will create a glow, emulating from the interior of the work. • The lamps will be accessed through access panels, built in to the side of work. • The access panels will be closed with tamper proof fasteners. Proposed Fabricator - Firm and Location I propose to use GIZMO ART PRODUCTION as the fabricator for this work of art. They are located in San Francisco. 202 Potrero Ave, San Francisco, CA 94103 htps://gizmosf.com/ They are currently fabricating a sculptural work which I created for 1050 Page Mill, Palo Alto, CA. Proposed Installation Method and Procedure Installation Sequence: A. Pour concrete foundations; install anchor bolts: bring in electrical wiring through foundations B. City pours sidewalk; install stainless steel words supplied by artist C. Install sculptures; connect electrical wiring for sculpture illumination Sculptures The artwork will have concrete foundations, engineered by an engineer licensed in California. Anchor bolts will be installed in the foundations placed in accordance with engineering specifications. The foundations will be poured in coordination with the landscape installation team, at least one month in advance of the sculpture installation. The sculptures will be set on the anchor bolts during a one - two-day installation. The sculptures will arrive with the lighting system prefabricated. After anchoring the sculpture, all electrical wires will be connected. Barbara Grygutis Sculpture LLC PO Box 3028, Tucson, AZ 85702-3028 | 520.882.5572 | barbara@barbaragrygutis.com | www.barbaragrygutis.com © BARBARA GRYGUTIS January 2019 DUBLIN, CA – ALL ABILITES PLAYGROUD ARTWORK PROPOSAL Page 4 Walkway The walkway will be poured by the City, while pouring the other sidewalks and curbs on site. The walkway will be poured prior to sculpture installation. Artist will provide between 6 and 10 stainless steel laser cut words to be embedded in the sidewalk. The artist will be on site to oversee installation of the words into the concrete walkway. Recommend Annual Maintenance • No annual maintenance will be necessary. • When necessary-cleaning the sculptures should be done with a hose and a simple soap. • No chemical cleaners should be on the aluminum. Timeline Based on a delivery date of November 2019, the following timeline can be expected: • Finalization of design details: March - April 2019 • Engineering: April - May 2019 • Building permit: May-June 2019 • Purchase materials and Fabrication: June - October 2019 • City pours foundations and sidewalk: June - October 2019 • Installation November - December: 2019 Proposal Notes • Artist proposes to collaborate with landscape architect to create the best landscaped area scenario that will highlight both artwork and landscape architecture, for this entry space to the All Ability Playground. Barbara Grygutis Sculpture LLC PO Box 3028, Tucson, AZ 85702-3028 | 520.882.5572 | barbara@barbaragrygutis.com | www.barbaragrygutis.com © BARBARA GRYGUTIS January 2019 DUBLIN, CA – ALL ABILITES PLAYGROUD ARTWORK PROPOSAL Page 5 Proposed Budget Artist Fee: 15% $ 45,000. Engineering Fees: $ 10,000. Fabrication: Includes materials and fabrication $ 180,000. 2 sculptures and words for sidewalk Fabrication and Installation oversight: 5% $ 15,000. Lighting: 4 led lamps and wiring inside sculpture $ 10,000. Transportation to the Site: $ 10,000. Installation (includes crane for 2 days) $ 15,000. Artist Travel; 6 trips @ 1,500. each: $ 9,000. Insurance: 2% $ 6,000. Contingency: 10% $ 30,000. ________________________________________________ TOTAL: $ 330,000. Budget Notes: • Artist requests that City of Dublin pour concrete walkway and foundations per artist engineering specifications. • Artist will supply templates for anchor bolt placement in concrete foundations. • Artist will supply laser cut words to be embedded in sidewalk. • Artist will supervise placement of words in sidewalk. Barbara Grygutis Sculpture LLC PO Box 3028, Tucson, AZ 85702-3028 | 520.882.5572 | barbara@barbaragrygutis.com | www.barbaragrygutis.com © BARBARA GRYGUTIS January 2019 DUBLIN, CA – ALL ABILITES PLAYGROUD ARTWORK PROPOSAL Page 6 EXHIBIT B SCOPE OF WORK SCHEDULE FOR COMPLETION OF WORK. The following fabrication schedule shall be adhered to in the performance of the work. During the term of this Agreement, the City Project Manager must approve Artist’s work at each phase of development before the Artist proceeds to the next phase. The City Project Manager for this Agreement is: Tegan McLane Heritage and Cultural Arts Manager 100 Civic Plaza Dublin, CA 94568 (925) 556-4565 tegan.mclane@dublin.ca.gov EXECUTION OF CONTRACT – 10% Overall DELIVERABLES: DUE DATE: 1. Fully Executed Contract 2. Evidence of All Required Insurance, Dublin Business License April 2, 2019 April 2, 2019 PHASE I: ENGINEERING – 25% Overall The scope of work under this phase includes completion of engineering documents for the Artwork. • Artist shall participate in in-person meetings, conference calls, etc. with the All-Abilities Playground Design and Construction Team as needed to incorporate Artwork into the project construction documents and landscape architecture design. • The Artist shall work with a California-licensed engineer to provide the City with stamped drawings for the Artwork and its incorporation into existing front-of-building landscaping. • Phase shall be considered complete when stamped engineering documents are received by the City Project Manager. Payment may be released earlier than the date specified should the Phase be deemed complete. DELIVERABLES: DUE DATE: 1. Engineered Drawings 2. Final Dimensional Design Documents for Integration with Construction Documents 3. Material Samples and/or Mock Ups as Requested by Design Team 4. Artist’s Confirmation via e-mail that Architect’s Design Development and/or Construction Documents accurately integrate of Artist’s Proposal within the Site and provide the City and Architect with written comments and/or corrections. May 15, 2019 (Est.) May 15, 2019 (Est.) February 19, 2019 (Est.) May 15, 2019 (Est.) PHASE II: MATERIALS PROCUREMENT- 40% Overall The scope of work under this phase includes procurement of raw materials needed to begin fabrication. • Artist shall purchase the necessary raw materials needed to fabricate the sculpture, and deliver materials to the fabricator. • Artist shall coordinate his/her communications with the General Contractor through the City Project Manager, copying the City Art Manager on all correspondence. If requested to do so by the City, Artist will communicate directly with the General Contractor, copying the City Project Manager and Art Manager. • Phase will be considered complete when satisfactory inspection reports have been received by City Project Manager. Payment may be released earlier than date specified should Phase be deemed complete. DELIVERABLES: DUE DATE: 1. Purchase receipts for materials 2. Delivery receipts for materials received by fabricator 3. Progress Report to indicate any potential change to June 10, 2019 (Est.) July 8, 2019 (Est.) July 8, 2019 (Est.) installation timeline. PHASE III: SCULPTURE FABRICATION MIDPOINT - 55% Overall The scope of work under this phase includes obtaining all raw materials and cutting/preparing them for fabrication: • Artist will fabricate the sculpture, addressing any concerns previously noted by the City. • Artist will keep the City apprised with monthly email progress reports. • Artist will facilitate a Studio visit from any City officials who wish to see the work in progress. • Phase will be considered complete when all deliverables have been received by City Project Manager. Payment may be released earlier than date specified should Phase be deemed complete. DELIVERABLES: DUE DATE: 1. Photo documentation of the sculpture frame completed. 2. Progress Report to indicate any potential change to project timeline. 3. Lettering received August 1, 2019 (EST.) September 1, 2019 (EST.) August 1, 2019 September 1, 2019 PHASE IV: SCULPTURE FABRICATION COMPLETE – 75% The scope of work under this phase includes completion of the sculpture and preparations for installation. • Artist shall complete the sculpture. • Artist will the City apprised with monthly email progress reports. • Artist shall create with the City Project Manager and Developer an installation plan indicating the staging and sequence of all aspects of installation. The Installation Plan must include a detailed description of the estimated duration of installation, the equipment to be used, and all workers who will be on site to assist. • Artist shall work cooperatively with the City to draft Artist Statement, which is to be incorporated into the plaque installed at the site. The City requires that all signage to be displayed on City property adhere to conventionally accepted spelling and punctuation, proper grammar and City style preferences, as determined by the City of Dublin Public Information Officer. • Phase will be considered complete when all deliverables have been received by City Project Manager. Payment may be released earlier than date specified should Phase be deemed complete. • The preparation of the Site for installation of the Artwork shall be the responsibility of the Park General Contractor in accordance with a separate written agreement between City and the General Contractor. • The City shall be responsible for providing electrical conduit to the point of the artwork, but not for installing the artwork lighting. DELIVERABLES: DUE DATE: 1. Delivery and Installation Plan developed with City Project Manager and Design Team 2. City approval of an Artist Vision Statement and signage text. 3. City Project Manager’s onsite inspection of the sculpture at Gizmo Art Production in San Francisco and signoff. 4. Progress Report to indicate any potential change to installation timeline. September 25, 2019 (EST) October 1, 2019 (EST.) October 25, 2019 (EST.) October 25, 2019 (EST.) PHASE V: INSTALLATION & CLOSEOUT – 100% The scope of work under this phase includes installation of the sculpture and plaque: • Artist shall prepare the Artwork for transportation in accordance with customary industry standards for the transportation of fine works of art. • If necessary, City shall provide Artist with an adequate no-fee storage location for the Artwork. Storage will be at the Artist’s risk and covered by his insurance. • If necessary, Artist shall provide for the transportation of the Artwork from storage to the installation site. Artist shall not transport the Artwork until access to the Site has been approved and scheduled by the Contract Administrator. • Artist shall coordinate with the City and General Contractor prior to and during the installation of the Artwork. • Artist shall coordinate Artist’s activities on site with the General Contractor through the Construction Management Team and/or the City staff. • Artist shall take reasonable means to protect improvements on the site during the course of the Artist’s work. • Artist is responsible for cleaning up after their work and properly disposing of any debris generated by their work. • Artist shall supply all hardware necessary for installation. • Artist shall provide and install all lighting fixtures necessary to illuminate the sculpture. • Where Artist’s Artwork is associated with that of the General Contractor, or any other Contractor engaged by the City to do work on the Site, Artist shall examine the work of such other Contractor and report in writing to the City and Developer any visible defect or condition preventing the proper execution of Artist’s Work. • If Artist proceeds without giving notice, the Artist shall be held to have approved the work or material and the existing conditions and shall be responsible for any defects in Artist’s own Work consequent thereon and shall not be relieved of any obligation or any guarantee because of any such condition or imperfection. • To the extent that any part of the Artist’s Artwork is to interface with work performed or installed by the General Contractor or other Contractor engaged by City to perform work on the Site, Artist shall inspect and measure the in-place work and promptly report to the City and Developer any defect in such in-place work that will impede or increase the cost of Artist’s interface unless corrected. • City and/or its authorized representatives will require the party responsible for the defective work to make corrections so as to conform to its contract requirements, or if the defect is the result of a default or omission in the contract documents, may issue a change order. • If Artist fails to measure, inspect and/or report defects that are reasonably discoverable, all costs of accomplishing the interface shall be borne by Artist. The forgoing does not apply to latent defects. Artist shall report to City any latent defects in another Contractor’s work at any time such defects become known. • City or its authorized representatives shall promptly thereafter take such steps as may be appropriate. Any difference or conflict that may arise between Artist and General Contractor, or other Contractors engaged by City to perform work on the Site, shall be adjusted as determined by City, its agents, or its authorized representatives when necessary to facilitate the work of Artist and/or other Contractors or workers. • Damages or claims by Artist are allowed only when a delay in the completion or installation of the work results from 1) the negligence or intentional act or omission of Contractors or workers other than the Artist, or 2) issues are discovered at the installation site, that were not discoverable during the site visit. Any change order for an extension of time must be for a period of time mutually agreed upon by the City and Artist. • Artist shall deliver all information necessary for the City to properly care for and maintain the Artwork, including information regarding the physical make-up of the Artwork, methods and materials, and information about the artistic intent of Artist in the Design, Fabrication and Installation of the Artwork • Phase will be considered complete when all deliverables have been received by City Project Manager. • Artist is invited, but not required, to attend artwork dedication in conjunction with the Building opening event. Artist will be given at least three months’ notice of the selected Building Opening date. While every effort will be made to coordinate with the Artist’s schedule, the Building Opening event will not be rescheduled in the event that the Artist is unable to attend on the selected date. DELIVERABLES: DUE DATE: 1. Successful installation of Artwork. January 31, 2020 (EST) 2. Final inspection of the Artwork immediately after installation. 3. Final inspection by the City of Dublin and closed permits. 4. Receipt of Artwork Maintenance Records January 31, 2020 (EST) Within 30 Days of Installation Within 30 Days of Installation EXHIBIT C PAYMENT SCHEDULE % COMPLETION PHASE OF WORK DESCRIPTION OF PHASE By Phase Overall ARTIST FEE EXECUTION Execution of Contract 10% 10% $33,000 Phase I Engineering 15% 25% $49,500 Phase II Materials procured 20% 45% $66,000 Phase III Sculpture fabrication midpoint, lettering complete 20% 65% $66,000 Phase IV Sculpture fabrication complete 20% 85% $66,000 Phase V Installation and Closeout 15% 100% $49,500 TOTAL ARTIST FEE $330,000