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Home My WebLink AboutOctober 1, 2019 Agenda PacketOctober 1, 2019 Dublin City Council Agenda Page 1 of 3 REGULAR MEETING Tuesday, October 1, 2019 Council Chamber, 100 Civic Plaza DUBLIN CITY COUNCIL A G E N D A • Agendas and Staff Reports are posted on the City’s Internet Website (www.dublin.ca.gov) • Agendas may be picked up at the City Clerk’s Office for no charge, or to request information on being placed on the annual subscription list, please call 833-6650. • A complete packet of information containing Staff Reports and exhibits relate to each item is available of public review at least 72 hours prior to a City Council Meeting or, in the event that it is delivered to City Council members less than 72 hours prior to a City Council Meeting, as soon as it is so delivered. The packet is available in the City Clerk’s Office and also at the Dublin Library. Pursuant to Government Code §54953(b), this meeting will include a teleconference location at the N-13/10, DLF City, Phase 2, Gurgaon, 122002, Haryana, India. Councilmember Arun Goel will be attending the Regular Meeting via teleconference. The public shall have the opportunity to address the City Council at this teleconference location pursuant to Government Code Section §54954.3. All votes during the teleconferencing session will be conducted by roll call vote. The teleconference location is accessible to the public and the agenda will be posted at the teleconference location 72 hours before the meeting. CLOSED SESSION 6:30 P.M. CONFERENCE WITH LABOR NEGOTIATORS Agency designated representatives: Mayor Haubert and Councilmember Josey Unrepresented employee: City Manager (Incoming) REGULAR MEETING 7:00 P.M. 1. CALL TO ORDER AND PLEDGE OF ALLEGIANCE 2. REPORT ON CLOSED SESSION 3. ORAL COMMUNICATIONS 3.1. Employee Introductions New member of City Staff will be introduced: Andrea Mendez, Recreation Manager, Parks & Community Services Department. STAFF RECOMMENDATION: Welcome the new City of Dublin Staff member. 3.2. Public Comment At this time, the public is permitted to address the City Council on non-agendized items. Please step to the podium and clearly state your name for the record. COMMENTS SHOULD NOT EXCEED THREE (3) MINUTES. In accordance with State Law, no action or discussion may take place on any item not appearing on the posted agenda. The Council may respond to statements made or questions asked, or may request Staff to report back at a future meeting concerning the matter. Any member of the public may contact the City Clerk’s Office related to the proper procedure to place an item on a future City Council agenda. The exceptions under which the City Council MAY discuss and/or take action on items not appearing on the agenda are contained in Government Code Section 54954.2(b)(1)(2)(3). 4. CONSENT CALENDAR Consent Calendar items are typically non-controversial in nature and are considered for approval by the City Council with one single action. Members of the audience, Staff or the City Council who would like an item removed from the Consent Calendar for purposes of public input may request the Mayor to remove the item. October 1, 2019 Dublin City Council Agenda Page 2 of 3 4.1. Approval of the September 17, 2019 Regular City Council Meeting Minutes The City Council will consider approval of the minutes of the September 17, 2019 Regular City Council meeting. STAFF RECOMMENDATION: Approve the minutes of the September 17, 2019 Regular City Council meeting. 4.2. Grant of Easement to Pacific Gas and Electric Company for Fire Station No. 16 The City Council will consider granting an easement to Pacific Gas and Electric Company for the installation, maintenance, and access for a new transformer and electric facilities servicing Fire Station No. 16, located at 7494 Donohue Drive. STAFF RECOMMENDATION: Adopt the Resolution Approving the Easement Deed to Pacific Gas and Electric Company for Electric Facilities at 7494 Donohue Drive. 4.3. Approve Public Art and Related Agreements for Butterfly Knoll Park, Jordan Ranch Park, and Sean Diamond Park The City Council will consider Public Art approval and associated artist agreements for Butterfly Knoll Park, Jordan Ranch Park, and Sean Diamond Park. STAFF RECOMMENDATION: Approve Public Art designs and adopt the Resolutions Approving Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Park, and Sean Diamond Park. 4.4. Encroachment Agreement with Kinder Morgan for Electric Facilities in Scarlett Drive and Don Biddle Community Park The City Council will consider approval of an Encroachment Agreement for electric facilities and appurtenances within Scarlett Drive and Don Biddle Community Park property for SFPP, L.P., a Delaware limited liability company, (a.k.a. Kinder Morgan) serving an existing pipeline valve box. STAFF RECOMMENDATION: Adopt the Resolution Approving an Encroachment Agreement with SFPP, L.P., a Delaware limited liability company. 4.5. Words for the Imagine Playground Art The City Council will consider word selection for the public art at the Imagine Playground. STAFF RECOMMENDATION: Approve the word selection for public art at the Imagine Playground. 4.6. Manufacturing Day Proclamation The City Council will proclaim Friday, October 4, 2019 as Manufacturing Day in Dublin. Sponsored by the National Association of Manufacturers, the Manufacturing Day campaign began in 2012 as an effort to positively change the public perception of modern manufacturing. STAFF RECOMMENDATION: Present the proclamation. 5. WRITTEN COMMUNICATION – NONE. 6. PUBLIC HEARING – NONE. 7. UNFINISHED BUSINESS – NONE. October 1, 2019 Dublin City Council Agenda Page 3 of 3 8. NEW BUSINESS 8.1. Revisions to the Capital Improvement Program - Dublin Historic Park Master Plan Improvements and Establishing a New Memorial Program at the Current Historic Cemetery The City Council will review the future Capital Improvement Projects (CIPs) outlined in the Dublin Historic Park Master Plan and consider eliminating Phases 2 through 4 and Approve a Memorial Program at the current Historic Cemetery, as recommended by the Parks and Community Services Commission and the Heritage and Cultural Arts Commission. STAFF RECOMMENDATION: Eliminate Phases 2 through 4 from the Dublin Historic Park Master Plan; Remove Phases 2 through 4 from the Capital Improvement Program; and Approve a Memorial Program for the current Historic Cemetery. 8.2. Overview of the City’s Inclusionary Zoning Regulations The City Council will receive an informational report on the City of Dublin’s Inclusionary Zoning Regulations in comparison with the similar regulations in other Tri-Valley jurisdictions. STAFF RECOMMENDATION: Receive the report. 8.3. Report on the City’s Communication Efforts Staff will provide an update on communication efforts and engagement, and receive feedback from City Council on other avenues they would like to explore. STAFF RECOMMENDATION: Receive the report and provide direction, if necessary. 9. OTHER BUSINESS Brief information only reports from City Council and/or Staff, including committee reports and reports by City Council related to meetings attended at City expense (AB1234). 10. ADJOURNMENT This AGENDA is posted in accordance with Government Code Section 54954.2(a) If requested, pursuant to Government Code Section 54953.2, this agenda shall be made available in appropriate alternative formats to persons with a disability, as required by Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12132), and the federal rules and regulations adopted in implementation thereof. To make a request for disability-related modification or accommodation, please contact the City Clerk’s Office (925) 833- 6650 at least 72 hours in advance of the meeting. Mission The City of Dublin promotes and supports a high quality of life, ensures a safe and secure environment, and fosters new opportunities. Page 1 of 1 STAFF REPORT CITY COUNCIL DATE: October 1, 2019 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Employee Introductions Prepared by: Caroline P. Soto, City Clerk/Records Manager EXECUTIVE SUMMARY: New member of City Staff will be introduced: Andrea Mendez, Recreation Manager, Parks & Community Services Department. STAFF RECOMMENDATION: Welcome the new City of Dublin Staff member. FINANCIAL IMPACT: N/A DESCRIPTION: New member of City Staff will be introduced: Andrea Mendez, Recreation Manager, Parks & Community Services Department. STRATEGIC PLAN INITIATIVE: N/A NOTICING REQUIREMENTS/PUBLIC OUTREACH: N/A ATTACHMENTS: None. 3.1 Packet Pg. 4 Page 1 of 1 STAFF REPORT CITY COUNCIL DATE: October 1, 2019 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Approval of the September 17, 2019 Regular City Council Meeting Minutes Prepared by: Caroline P. Soto, City Clerk/Records Manager EXECUTIVE SUMMARY: The City Council will consider approval of the minutes of the September 17, 2019 Regular City Council meeting. STAFF RECOMMENDATION: Approve the minutes of the September 17, 2019 Regular City Council meeting. FINANCIAL IMPACT: N/A DESCRIPTION: The City Council will consider approval of the minutes of the September 17, 2019 Regular City Council meeting. STRATEGIC PLAN INITIATIVE: N/A NOTICING REQUIREMENTS/PUBLIC OUTREACH: N/A ATTACHMENTS: 1. Draft Minutes of the September 17, 2019 Regular City Council Meeting 4.1 Packet Pg. 5 MINUTES OF THE CITY COUNCIL OF THE CITY OF DUBLIN REGULAR MEETING – SEPTEMBER 17, 2019 DUBLIN CITY COUNCIL MINUTES 1 REGULAR MEETING SEPTEMBER 17, 2019 Closed Session 6:30 P.M. I. CONFERENCE WITH LABOR NEGOTIATORS Agency designated representatives: Christopher L. Foss, City Manager Unrepresented employees: Accountant Administrative Aide Administrative Services Director/Finance Director Administrative Technician Assistant Civil Engineer Assistant Director of Administrative Services/Finance Assistant Director of Parks & Community Services Assistant Director of Community Development Assistant Planner Assistant Public Works Director/City Engineer Assistant to the City Manager Associate Civil Engineer Associate Planner Budget Analyst Capital Improvement Program Manager Chief Building Official City Clerk City Clerk/Records Manager Code Enforcement Officer Community Development Director Deputy City Clerk Economic Development Director Economic Development Director/Public Information Officer Environmental Coordinator Environmental Technician Executive Aide Finance Technician I Finance Technician II Financial Analyst Graphic Design and Communications Coordinator Heritage Center Director Heritage & Cultural Arts Manager Housing Specialist Information Systems Manager Information Systems Technician I Information Systems Technician II Management Analyst I 4.1.a Packet Pg. 6 Attachment: 1. Draft Minutes of the September 17, 2019 Regular City Council Meeting (Draft Minutes of the September 17, 2019 Regular DUBLIN CITY COUNCIL MINUTES 2 REGULAR MEETING SEPTEMBER 17, 2019 Management Analyst II Network Systems Coordinator Office Assistant I Office Assistant II Parks & Community Services Business Manager Parks & Facilities Development Coordinator Parks & Community Services Director Permit Technician Plan Check Engineer Plans Examiner I Plans Examiner II Planning Manager Principal Planner Public Works Director/Assistant City Engineer Public Works Inspector Public Works Maintenance Superintendent Public Works Manager Public Works Technician I Public Works Technician II Public Works Transportation and Operations Manager Recreation Coordinator Recreation Manager Recreation Supervisor Recreation Technician Senior Accountant Senior Civil Engineer Senior Code Enforcement Officer Senior Finance Technician Senior Management Analyst Senior Office Assistant Senior Planner Senior Public Works Inspector Special Project Manager II. CONFERENCE WITH LABOR NEGOTIATORS Agency designated representatives: Christopher L. Foss, City Manager Unrepresented employees: Assistant City Manager and Human Resources Director III. PUBLIC EMPLOYEE PERFORMANCE EVALUATION Title: City Manager IV. PUBLIC EMPLOYEE APPOINTMENT Title: City Manager V. CONFERENCE WITH REAL PROPERTY NEGOTIATORS Property: APN 941-0305-028-00 Agency negotiator: Christopher L. Foss, City Manager Negotiating parties: ASVRF Dublin Place, LP Under negotiation: Price and terms of payment 4.1.a Packet Pg. 7 Attachment: 1. Draft Minutes of the September 17, 2019 Regular City Council Meeting (Draft Minutes of the September 17, 2019 Regular DUBLIN CITY COUNCIL MINUTES 3 REGULAR MEETING SEPTEMBER 17, 2019 1. Call to Order and Pledge of Allegiance – The meeting was called to order at 7:04 p.m. by Mayor Haubert. The pledge was led by a student from Dougherty Elementary and recited by the City Council, Staff, and those present at the meeting. Attendee Name Title Status David Haubert Mayor Present Melissa Hernandez Vice Mayor Present Arun Goel Councilmember Present Jean Josey Councilmember Present Shawn Kumagai Councilmember Present 2. Report on Closed Session By consensus, the City Council agreed to reconvene to Closed Sessio n after the end of the regular meeting. 3. Oral Communications 3.1. Recognition of Green Gator and Junior Green Gator Swim Teams The City Council presented the certificates of recognition. 3.2. Presentation by Diversity Inclusion Alliance The City Council received the presentation from Regis Harvey and Michael Karami, members of Diversity Inclusion Alliance. 3.3. Employee Introduction: Christian Kalinowski The City Council welcomed the new Dublin Staff member. 3.4. Public Comment Michael Utsumi, Dublin resident, provided public comment. Angelica Colmenares, Dublin resident, provided public comment. Mansi Tuli, Dublin resident, provided public comment. 4. Consent Calendar 4.1. Approved the minutes of the September 3, 2019 Regular City Council meeting. 4.1.a Packet Pg. 8 Attachment: 1. Draft Minutes of the September 17, 2019 Regular City Council Meeting (Draft Minutes of the September 17, 2019 Regular DUBLIN CITY COUNCIL MINUTES 4 REGULAR MEETING SEPTEMBER 17, 2019 4.2. Adopted RESOLUTION NO. 93 – 19 APPROVING A CONTRACTOR SERVICES AGREEMENT WITH PRECISION EMPRISE LLC DBA PRECISION CONCRETE CUTTING FOR SIDEWALK INSPECTION AND REPAIR SERVICES 4.3. Adopted RESOLUTION NO. 94 – 19 APPROVING THE AMENDMENT TO THE AGREEMENT WITH ALL CITY MANAGEMENT SERVICES, INC. FOR THE PROVISION OF CROSSING GUARD SERVICES FOR FISCAL YEAR 2019-20 4.4. Adopted RESOLUTION NO. 95 – 19 APPROVING AN AGREEMENT WITH TELLART FOR REPLACEMENT PUBLIC ART AT DOUGHERY HILLS DOG PARK 4.5. Adopted RESOLUTION NO. 96 – 19 REDUCING THE SECOND UNIT FEE IN THE TRI-VALLEY TRANSPORTATION DEVELOPMENT FEE PROGRAM TO $0 4.6. Received the Payment Issuance Report. 4.7. Adopted RESOLUTION NO. 97 – 19 ADOPTING THE 2019 ANNUAL REVIEW OF INVESTMENT POLICY AND DELEGATION OF AUTHORITY TO COMPLETE INVESTMENT TRANSACTIONS 4.8. Adopted RESOLUTION NO. 98 – 19 FINDING THAT DEVELOPERS HAVING OBLIGATIONS UNDER ACTIVE DEVELOPMENT AGREEMENTS AND SUPPLEMENTAL AGREEMENTS AS AMENDED, HAVE COMPLIED IN GOOD FAITH WITH THE TERMS AND PROVISIONS OF THE AGREEMENTS 4.1.a Packet Pg. 9 Attachment: 1. Draft Minutes of the September 17, 2019 Regular City Council Meeting (Draft Minutes of the September 17, 2019 Regular DUBLIN CITY COUNCIL MINUTES 5 REGULAR MEETING SEPTEMBER 17, 2019 4.9. Adopted RESOLUTION NO. 99 – 19 AMENDING THE BENEFIT PLAN RESOLUTION NO. 100 – 19 AMENDING THE PERSONNEL SYSTEM RULES RESULT: ADOPTED [UNANIMOUS] MOVED BY: Melissa Hernandez, Vice Mayor SECOND: Arun Goel, Councilmember AYES: Haubert, Hernandez, Goel, Josey, Kumagai 5. Written Communication – None. 6. Public Hearing – None. 7. Unfinished Business – None. 8. New Business 8.1. Discussion on the City of Dublin's Sister City Activities Kim Halket, President of Dublin’s Sister City Association, made a presentation and responded to questions posed by the City Council. By consensus, the City Council agreed to make a one-time donation of $5,000 to the City of Dublin’s Sister Association. The City Council agreed to send Mayor Haubert and a Dublin staff member to Bray, County Wicklow, Ireland for a delegation planning trip in December 2019 for a future trip in 2020. RESULT: APPROVED [4 TO 1] MOVED BY: Jean Josey, Councilmember SECOND: Shawn Kumagai, Councilmember AYES: Haubert, Hernandez, Josey, Kumagai NAYS: Goel 4.1.a Packet Pg. 10 Attachment: 1. Draft Minutes of the September 17, 2019 Regular City Council Meeting (Draft Minutes of the September 17, 2019 Regular DUBLIN CITY COUNCIL MINUTES 6 REGULAR MEETING SEPTEMBER 17, 2019 8.2. Update on Dublin's Economic Development Activities The City Council received the presentation. 9. Other Business – Brief information only reports from City Council and/or Staff, including committee reports and reports by City Council related to meetings attended at City expense (AB1234). 8:28 p.m. The City Council reconvened to Closed Session. 9:42 p.m. Report on Closed Session The City Council voted unanimously in closed session to appoint Assistant City Manager Linda Smith as the new City Manager effective January 1, 2020, contingent upon the City Council’s approval of the terms and conditions of an employment agreement to be negotiated between Ms. Smith and the negotiating committee. 10. Adjournment The meeting was adjourned at 9:44 p.m. Mayor ATTEST: ___________________________ City Clerk 4.1.a Packet Pg. 11 Attachment: 1. Draft Minutes of the September 17, 2019 Regular City Council Meeting (Draft Minutes of the September 17, 2019 Regular Page 1 of 2 STAFF REPORT CITY COUNCIL DATE: October 1, 2019 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Grant of Easement to Pacific Gas and Electric Company for Fire Station No. 16 Prepared by: James Paluck, Senior Civil Engineer EXECUTIVE SUMMARY: The City Council will consider granting an easement to Pacific Gas and Electric Company for the installation, maintenance, and access for a new transformer and electric facilities servicing Fire Station No. 16, located at 7494 Donohue Drive. STAFF RECOMMENDATION: Adopt the Resolution Approving the Easement Deed to Pacific Gas and Electric Company for Electric Facilities at 7494 Donohue Drive. FINANCIAL IMPACT: There is no impact on the General Fund. All costs associated with the review and preparation of the easement documents are borne by the developer for the Avesta Senior Care Facility. DESCRIPTION: The existing electrical transformer and a portion of the existing underground electric wires providing electrical service to the City-owned property, which currently houses Fire Station No. 16, located at 7494 Donohue Drive, is currently located on property adjacent to the Fire Station site. As a result of the development of the Avesta Senior Care Facility on that adjacent property, 7601 Amador Valley Boulevard, it is necessary for Pacific Gas and Electric Company (PG&E) to install a new surface -mounted transformer and new underground primary and secondary electric services on the City - owned property in order to provide for continued electrical power to the existing Fire Station building. The installation of these new electric facilities on the City-owned property necessitate that the City grant an easement to PG&E for the construction and maintenanc e of said 4.2 Packet Pg. 12 Page 2 of 2 facilities and associated equipment and any necessary future reconstruction or replacement of said facilities. The Easement Deed also gives PG&E the right of ingress and egress across the Fire Station site in order to perform the above described activities, including the right to trim or remove any trees and brush within the easement area. The developer of the Avesta Senior Care Facility project is paying all costs associated with the installation of the new electric facilities on the Fire Station site, including the preparation of the associated Easement Deed document. Additionally, the Avesta Senior Care Facility developer will be replacing in-kind all existing landscaping and other minor site improvements on the Fire Station site that may be disturbed during the construction of the electric facilities. STRATEGIC PLAN INITIATIVE: None. NOTICING REQUIREMENTS/PUBLIC OUTREACH: None. ATTACHMENTS: 1. Resolution Approving Easement Deed to Pacific Gas and Electric Company for Electric Facilities at 7494 Donohue Drive 2. Exhibit A to the Resolution - Easement Deed, including Exhibits A and B 4.2 Packet Pg. 13 RESOLUTION NO. - 19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * APPROVING THE EASEMENT DEED TO PACIFIC GAS AND ELECTRIC COMPANY FOR ELECTRIC FACILITES AT 7494 DONOHUE DRIVE WHEREAS, the City of Dublin acquired title to property for Fire Station No. 16, Assessor’s Parcel Number 941-0173-001-10, located at 7494 Donohue Drive, by Quitclaim Deed dated June 25, 1997, Document No. 97160045 in the Office of the Alameda County Recorder; and WHEREAS, a new transformer and electrical facilities are necessary for the operation of Fire Station No. 16; and WHEREAS, Pacific Gas and Electric Company (PG&E) has requested that the City grant an easement for electric facilities across said property to allow PG&E access for construction and maintenance; and WHEREAS, PG&E has prepared an Easement Deed document for execution by the City Manager; and WHEREAS, Staff has reviewed the Easement Deed and the plan to install a new transformer and electrical facilities and finds that the PG&E easement is necessary for the City - owned property and the operation of Fire Station No. 16. NOW, THEREFORE, BE IT RESOLVED by the City Council that: 1. The easement across APN 941-0173-001-10, located at 7494 Donohue Drive, as more particularly described in the Easement Deed attached hereto as Exhibit A, is hereby granted to PG&E pursuant to the terms contained within the easement document; and 2. The City Council hereby directs and authorizes the City Manager to execute the Easement Deed of behalf of the City. BE IT FURTHER RESOLVED that the Clerk of this City Council is hereby directed to cause a certified copy of this resolution to be recorded in the Office of the Alameda County Recorder. PASSED, APPROVED AND ADOPTED this 1st day of October, 2019, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ______________________________________ 4.2.a Packet Pg. 14 Attachment: 1. Resolution Approving Easement Deed to Pacific Gas and Electric Company for Electric Facilities at 7494 Donohue Drive ATTEST: Mayor ____________________________________ City Clerk 4.2.a Packet Pg. 15 Attachment: 1. Resolution Approving Easement Deed to Pacific Gas and Electric Company for Electric Facilities at 7494 Donohue Drive 4.2.b Packet Pg. 16 Attachment: 2. Exhibit A to the Resolution - Easement Deed, including Exhibits A and B (Approval of Grant of Easement to PG&E for Electrical 4.2.b Packet Pg. 17 Attachment: 2. Exhibit A to the Resolution - Easement Deed, including Exhibits A and B (Approval of Grant of Easement to PG&E for Electrical 4.2.b Packet Pg. 18 Attachment: 2. Exhibit A to the Resolution - Easement Deed, including Exhibits A and B (Approval of Grant of Easement to PG&E for Electrical 4.2.b Packet Pg. 19 Attachment: 2. Exhibit A to the Resolution - Easement Deed, including Exhibits A and B (Approval of Grant of Easement to PG&E for Electrical 4.2.b Packet Pg. 20 Attachment: 2. Exhibit A to the Resolution - Easement Deed, including Exhibits A and B (Approval of Grant of Easement to PG&E for Electrical Page 1 of 3 STAFF REPORT CITY COUNCIL DATE: October 1, 2019 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Approve Public Art and Related Agreements for Butterfly Knoll Park, Jordan Ranch Park, and Sean Diamond Park Prepared by: La Shawn Butler, Parks and Community Services Director EXECUTIVE SUMMARY: The City Council will consider Public Art approval and associated artist agreements for Butterfly Knoll Park, Jordan Ranch Park, and Sean Diamond Park. STAFF RECOMMENDATION: Approve Public Art designs and adopt the Resolutions Approving Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Park, and Sean Diamond Park. FINANCIAL IMPACT: The adopted Capital Improvement Project budget for the Butterfly Knoll Park Public Art (PK0118) is $17,560 with $13,060 slated for payment to the artist from the Public Art Fund. The design proposal budget encompasses a $13,000 budget. The adopted Capital Improvement Project budget for Jordan Ranch Park Art (PK031 8) is $46,980, with $41,000 slated for payment to the artist from the Public Art Fund. The design proposal budget will encompass the entire $41,000 budget. The adopted Capital Improvement Project budget for Sean Diamond Park Art (PK0418) is $48,000, with $42,000 slated for payment to the artist from the Public Art Fund. The design proposal budget will encompass the entire $42,000 budget. DESCRIPTION: Butterfly Knoll Park Butterfly Knoll Park (Palisides Drive & Rosamund Hills) is a one -acre neighborhood park nestled against open space. The park will be developer built with construction scheduled to begin in Winter 2019 and park completion in Summer 2020. Public art is intended for the proposed staircase façade and the side rails of the staircase leading from the park to the street above totaling 170 square feet. 4.3 Packet Pg. 21 Page 2 of 3 Walnut Creek-based muralist Joey Rose’s design is dedicated to native, Bay Area species of butterflies. The left wall is inspired by butterfly wings and the right wall is inspired by the butterfly’s corresponding caterpillar (Attachment 2, Exhibit A). If you walk a straight line from a caterpillar to a butterfly, the species will match. The paintings will wrap around the wall at the top of the stairs to be seen at street level. Each stair leading up to the street will be painted an individual color, enhancing the connection between the walls and creating an eye-catching gradient. Labeling or identifying each species (whether it be an interpretive sign or directly on the wall) will make this piece engaging and educational. The walls and steps will be primed and painted with high-quality, non-toxic exterior mural paint. The community interaction component proposed by the artist is a public painting day. Participants will be encouraged to fill the shapes with background colors. Participants will receive seeds for native butterfly plants to grow in their own yard and one -of-a-kind custom butterfly stickers designed by the artist. The Heritage and Cultural Arts Commission considered this item at its August 8, 2019 regular meeting and voted 6-0 to advance the proposal by Joey Rose. The Parks and Community Services Commission also considered this item at its August 19, 2019 regular meeting and voted 6-0 to advance the Joey Rose proposal. Jordan Ranch Park Jordan Ranch Park (4299 Jordan Ranch Drive) is a 4.9-acre neighborhood park nestled against open space. The park was dedicated in 2018. There are five seat walls in the playground area, ranging in length from 10’ to 20’. The seat walls are 18”-24” tall. The artist proposal was for Benches A and B, with Bench C added at the request of the Heritage and Cultural Arts Commission at no additional cost. The seat walls have skateboard bumpers. Sacramento-based sculptor Yoshio Taylor’s design (Attachment 4, Exhibit A) comprises decorative tiled installations on low curved cement seating areas, set around the playground area on Benches A, B and C. Each one comprises a design for the wall front, and on top of a concrete substrate. The design is educational and visually enriching. The design shows some of the historical significance of Dublin and its surrounding area, with an emphasis on nature. The types of tile used will include handmade and carved relief terra -cotta tiles, with representational images such as numbers, letters, horses, trains, flowers and wildlife. Imported porcelain tiles and glass tiles will represent water, and unglazed commercial tiles will be used as a community involvement project with Dublin school children. The Heritage and Cultural Arts Commission considered this item at its July 11, 2019 regular meeting and voted 5-0 to advance the proposal by Yoshio Taylor. The Parks and Community Services Commission also considered this item at its August 19, 2019 regular meeting and voted 6-0 to advance the Yoshio Taylor proposal. 4.3 Packet Pg. 22 Page 3 of 3 Sean Diamond Park Sean Diamond Park (4801 La Strada Drive) is a neighborhood park across the street from Jose Maria Amador Elementary School. The park was dedicated in 2018. The artwork will be installed in the center of the park in an open circular area with a diameter of 22 feet. Saori Ide and Jonathan Russell of RideArt Studio’s design named DIAMOND is an 18 - foot high kinetic wind sculpture made of stainless steel. This large sculpture features two diamond shapes, one nestled inside of the other, that move with the wind in opposite directions. The base of the sculpture is a four-sided tapered column with green diamond shaped folded leaves around the top of the base, which are designed to cast shadow patterns on the ground as the sun shines through them. The Heritage and Cultural Arts Commission considered this item at its August 8, 2019 regular meeting and voted 5-1 to advance the proposal by Saori Ide and Jonathan Russell. The Parks and Community Services Commission also considered this item at its August 19, 2019 regular meeting and voted 6-0 to advance the Saori Ide and Jonathan Russell proposal. All three park projects were reviewed by the City's Public Art Conservator and by City Staff. Staff recommends City Council approve the public art designs and adopt the resolutions approving public art agreements for Butterfly Knoll Park, Jordan Ranch Park, and Sean Diamond Park. STRATEGIC PLAN INITIATIVE: N/A NOTICING REQUIREMENTS/PUBLIC OUTREACH: N/A ATTACHMENTS: 1. Resolution Approving a Public Art Installation Agreement with Joey Rose for Butterfly Knoll Park 2. Exhibit A to the Resolution – Joey Rose Installation Agreement 3. Resolution Approving a Public Art Installation Agreement with Yoshio Taylor for Jordan Ranch Park 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement 5. Resolution Approving a Public Art Installation Agreement with RideArt Studios for Sean Diamond Park 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement 4.3 Packet Pg. 23 ATTACHMENT 1 RESOLUTION NO. XX - 19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * * * APPROVING AN AGREEMENT WITH JOEY ROSE FOR A PUBLIC ART PROJECT AT BUTTERFLY KNOLL PARK WHEREAS, the 2016-2021 Capital Improvement Program includes a project to design and install permanent public art at Butterfly Knoll Park within the Tassajara Hills Neighborhood Square; and WHEREAS four public artists who pre-qualified according to the Public Art Master Plan process to design a mural were invited to submit design proposals to paint and install a permanent public art piece; and WHEREAS, the Public Art proposal by Joey Rose was recommend by the Butterfly Knoll Art Selection Committee, Heritage and Cultural Arts Commission and Parks and Community Services Commission; and WHEREAS, Joey Rose has demonstrated ability and availability to perform said services. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does approve the Agreement with Joey Rose attached as Exhibit A and authorizes the City Manager to execute the Agreement and any other minor modifications as needed to carry out the intent of this Resolution. PASSED, APPROVED AND ADOPTED this 1st day of October 2019, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ______________________________ Mayor ATTEST: _________________________________ City Clerk 4.3.a Packet Pg. 24 Attachment: 1. Resolution Approving a Public Art Installation Agreement with Joey Rose for Butterfly Knoll Park (Public Art Agreements for Public Art Agreement between the City of Dublin and Joey Rose Page 1 of 18 PUBLIC ART AGREEMENT BETWEEN THE CITY OF DUBLIN AND JOEY ROSE THIS AGREEMENT is made by and between the City of Dublin (“City”) and Joey Rose (“Artist”) as of ____________, 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 October 1, 2019, authorized the City Manager to negotiate an agreement between City and Artist for the preparation of a public art mural at Butterfly Knoll Park ((Palisides Drive & Rosamund Hills) 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. In the event that City, 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 City of such desire of City, reassign such person or persons. 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. 4.3.b Packet Pg. 25 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the City of Dublin and Joey Rose Page 2 of 18 Section 2. SCOPE OF WORK: Artist shall provide a final design, fabrication and installation of a public art project at Sean Diamond Park. The artwork will be installed in the center of the park in an open circular area with a diameter of 22’ as 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 The City may, at any time, request the Artist in writing to (a) revise portions of the services that he/she has previously completed in a satisfactory manner; (b) delete portions of the Scope of the Work that the Artist has not yet performed; (c) perform additional work beyond the Scope of Work to be provided in Exhibit B; 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 be obligated to agree to any such request. 2.4 In the event the request for change is agreed to by the Artist, this Agreement shall be amended, in 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 Artist does not agree to the request, the City shall be entitled to terminate the Agreement for 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 the City. Section 3. COMPENSATION. City hereby agrees to pay Artist a sum not to exceed $13,000 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 con flict 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 Art ist and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement. 4.3.b Packet Pg. 26 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the City of Dublin and Joey Rose Page 3 of 18 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; ▪ 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 outstan ding 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 $13,000. The Artist shall, without additional compensation, correct or revise any errors, omissions, or other deficiencies in his/her Work. 4.3.b Packet Pg. 27 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the City of Dublin and Joey Rose Page 4 of 18 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. 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 resulting, directly or indirectly, from delays in performance caused by Artist's 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, 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 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: Joey Rose 1390 Creekside Dr., #50 Walnut Creek, CA 94596 (530) 306-4364 joey@joeyrosestudio.com 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. 4.3.b Packet Pg. 28 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the City of Dublin and Joey Rose Page 5 of 18 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, in addition to other rights or remedies available to the City under the Agreement or applicable law, the City shall have the right to terminate this Agreement immediately and shall have no further obligations under this Agreement. 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. Artist shall have 20 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 resoluti on 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 or substantially similar image, design, dimensions and materials as the Artwork. Artist may create works that utilize or incorporate various individual art elements that comprise the Artwork, 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 Artwork, and (3) is not displayed in an environment that is the same or substantially similar to the environment in which the Artwork is to be displayed at the site. 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 City, in its sole discretion, at any time during the term of this Agr eement, desires the removal of any such persons, Artist shall, immediately upon receiving notice from City of such desire of City, cause the removal of such person or persons, unless in the Artist's sole opinion, the skill or creativity of such person or persons is essential to the creation of the Work. 4.3.b Packet Pg. 29 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the City of Dublin and Joey Rose Page 6 of 18 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. 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 Artwork 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, 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 op erating 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. 4.3.b Packet Pg. 30 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the City of Dublin and Joey Rose Page 7 of 18 9.4 Although City strives to maintain the Public Art Collection in good repair and condition, 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. 9.5 The anticipated life span of the Artwork is 25 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 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 absolute right to alter the Artwork in City’s sole judgment. 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: 4.3.b Packet Pg. 31 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the City of Dublin and Joey Rose Page 8 of 18 10.3.1 Notice. Where time permits, City shall make reasonable good faith efforts to notify Artist at least 20 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 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, 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 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 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 o f 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 befo re 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). 4.3.b Packet Pg. 32 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the City of Dublin and Joey Rose Page 9 of 18 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 Artis t’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 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, an unlimited, 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. 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 to maintain and support City’s Public Art Collection or for any other public purposes that City deems appropriate. 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. 4.3.b Packet Pg. 33 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the City of Dublin and Joey Rose Page 10 of 18 11.4. Credit. All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: “Joey Rose (c), April 30, 2020.” 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. 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. In the event that City’s use of the Artwork creates trademark, service mark or trade dress rights in connection with the Artwork, City shall have an exclusive and irrevocable right in such trademark, service mark, or trade dress. 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 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 make a good faith effort to 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. 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. Artist may retain originals of such documents and items and provide copies to City. 4.3.b Packet Pg. 34 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the City of Dublin and Joey Rose Page 11 of 18 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. 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. 4.3.b Packet Pg. 35 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the City of Dublin and Joey Rose Page 12 of 18 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 noti fication from Artist’s insurer if such coverage is suspended, voided or reduced in coverage or in limits. 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. The Contract Administrator may condition approval of an increase in deductible or self- insured retention levels with a requirement that Artist procure a bond, guaranteeing payment of losses and related investigations, claim administratio n, and defense expenses that is satisfactory in all respects to each of them. 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. 4.3.b Packet Pg. 36 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the City of Dublin and Joey Rose Page 13 of 18 13.4 Remedies. In addition to any other remedies City may have if Artist fails to provide or m aintain 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 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 contribution s, 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 pu rsuant 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. 4.3.b Packet Pg. 37 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the City of Dublin and Joey Rose Page 14 of 18 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. 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, sex, gender, religion (including religious dress and grooming practices), national origin, ancestry, physical or mental disability, medical condition (including cancer and genetic characteristics), marital status, age, sexual orientation, color, creed, pregnancy, genetic information, gender identity or expression, political affiliation or belief, military/veteran status, or any other classification protected by applicable local, state, or federal laws (each a “Protected Characteristic”), 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 include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. 16.6 (Intentionally deleted) 4.3.b Packet Pg. 38 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the City of Dublin and Joey Rose Page 15 of 18 Section 17. TERMINATION AND MODIFICATION. 17.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Artist. Artist may cancel this Agreement upon thirty (30) days’ written notice to City and shall include in such notice the reasons for cancellation. 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. Similarly, unless authorized by the Contract Administrator, City 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. 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 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 Exhibit A not finished by 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 City would have paid Artist pursuant to Section 2 if Artist had completed the work. 4.3.b Packet Pg. 39 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the City of Dublin and Joey Rose Page 16 of 18 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 48 hours 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. 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. The reports, including any copies, shall be 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 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 a t 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. Artist hereby agrees to deliver those documents to the City upon termination of the 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 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. 4.3.b Packet Pg. 40 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the City of Dublin and Joey Rose Page 17 of 18 Section 19. MISCELLANEOUS PROVISIONS. 19.1 Attorneys’ Fees. If a party to this Agreement brings any action, including an action for declara tory 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 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 disqualifi ed 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. 4.3.b Packet Pg. 41 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the City of Dublin and Joey Rose Page 18 of 18 19.10 Notices. Any written notice to Artist shall be sent to: Joey Rose 1390 Creekside Dr., #50 Walnut Creek, CA 94596 (530) 306-4364 joey@joeyrosestudio.com 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 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 negoti ations, representations, or agreements, either written or oral. CITY OF DUBLIN ARTIST ____________________________ ______________________________ Chris Foss, City Manager Joey Rose, Artist Attest: ____________________________ Caroline Soto, City Clerk Approved as to Form: ____________________________ John Bakker, City Attorney 4.3.b Packet Pg. 42 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the EXHIBIT A City of Dublin and Joey Rose Page 1 of 7 EXHIBIT A ARTIST PROPOSAL Artist shall provide mural art at Butterfly Knoll Park that will go on a staircase façade and the side rails for the staircase leading from the park to the street above totaling 170 square feet. Butterfly Knoll Park (Palisides Drive & Rosamund Hills) is under construction and not due to be completed until Spring 2020. 4.3.b Packet Pg. 43 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the EXHIBIT A City of Dublin and Joey Rose Page 2 of 7 EXHIBIT A ARTIST PROPOSAL 4.3.b Packet Pg. 44 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the EXHIBIT A City of Dublin and Joey Rose Page 3 of 7 EXHIBIT A ARTIST PROPOSAL 4.3.b Packet Pg. 45 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the EXHIBIT A City of Dublin and Joey Rose Page 4 of 7 EXHIBIT A ARTIST PROPOSAL 4.3.b Packet Pg. 46 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the EXHIBIT A City of Dublin and Joey Rose Page 5 of 7 EXHIBIT A ARTIST PROPOSAL 4.3.b Packet Pg. 47 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the EXHIBIT A City of Dublin and Joey Rose Page 6 of 7 EXHIBIT A ARTIST PROPOSAL 4.3.b Packet Pg. 48 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the EXHIBIT A City of Dublin and Joey Rose Page 7 of 7 EXHIBIT A ARTIST PROPOSAL 4.3.b Packet Pg. 49 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the EXHIBIT B City of Dublin and Joey Rose Page 1 of 1 EXHIBIT B SCOPE OF WORK City expectation is that artwork design and installation should be completed in Fiscal Year 2019- 2020 (July – June). Artist Proposal for timeline: 4.3.b Packet Pg. 50 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch Public Art Agreement between the EXHIBIT C City of Dublin and Joey Rose Page 1 of 1 EXHIBIT C COMPENSATION Artist Proposal budget: 4.3.b Packet Pg. 51 Attachment: 2. Exhibit A to the Resolution – Joey Rose Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Ranch ATTACHMENT 1 RESOLUTION NO. XX - 19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * * * APPROVING AN AGREEMENT WITH YOSHIO TAYLOR FOR A PUBLIC ART PROJECT AT JORDAN RANCH PARK WHEREAS, the 2016-2021 Capital Improvement Program includes a project to design, fabricate and install permanent public art at Jordan Ranch Park; and WHEREAS five public artists who pre-qualified according to the Public Art Master Plan process to design a tiled seat wall were invited to submit design proposals to design, fabricate and install a permanent public art piece; and WHEREAS, the Public Art proposal by Yoshio Taylor was recommend by the Jordan Ranch Park Art Selection Committee, Heritage and Cultural Arts Commission and Parks and Community Services Commission; and WHEREAS, Yoshio Taylor has demonstrated ability and availability to perform said services. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does approve the Agreement with Yoshio Taylor attached as Exhibit A and authorizes the City Manager to execute the Agreement and make any other minor amendments as necessary to carry out the intent of this Resolution. PASSED, APPROVED AND ADOPTED this 1st day of October 2019, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ______________________________ Mayor ATTEST: _________________________________ City Clerk 4.3.c Packet Pg. 52 Attachment: 3. Resolution Approving a Public Art Installation Agreement with Yoshio Taylor for Jordan Ranch Park (Public Art Agreements for Public Art Agreement between the City of Dublin and Yoshio Taylor Page 1 of 18 PUBLIC ART AGREEMENT BETWEEN THE CITY OF DUBLIN AND YOSHIO TAYLOR THIS AGREEMENT is made by and between the City of Dublin (“City”) and Yoshio Taylor (“Artist”) as of, ________________ 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 October 1, 2019, authorized the City Manager to negotiate an agreement between City and Artist for the preparation of a final design, fabrication and installation for public art at Jordan Ranch Park (4299 Jordan Ranch Dr.) 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. In the event that City, 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 City of such desire of City, reassign such person or persons. 4.3.d Packet Pg. 53 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Yoshio Taylor 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 public art project at Jordan Ranch Park consisting of decorative tiled installations on three low curved cement walls, intended to be seating areas, set around a playground area. Each one comprises a design for the wall front, and on top of a concrete substrate 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 The City may, at any time, request the Artist in writing to (a) revise portions of the services that he/she has previously completed in a satisfactory manner; (b) delete portions of the Scope of the Work that the Artist has not yet performed; (c) perform additional work beyond the Scope of Work to be provided in Exhibit B; 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 be obligated to agree to any such request. 2.4 In the event the request for change is agreed to by the Artist, this Agreement shall be am ended, 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 Artist does not agree to the request, the City shall be entitled to terminate the Agreement for 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 the City. Section 3. COMPENSATION. City hereby agrees to pay Artist a sum not to exceed $41,000 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. 4.3.d Packet Pg. 54 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Yoshio Taylor Page 3 of 18 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;  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 $41,000. The Artist shall, without additional compensation, correct or revise any errors, omissions, or other deficiencies in his/her Work. 4.3.d Packet Pg. 55 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Yoshio Taylor Page 4 of 18 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. 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 resulting, directly or indirectly, from delays in performance caused by Artist's 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, 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 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: Yoshio Taylor 95 Sandburg Dr. Sacramento, CA 95819 (916) 456-9549, cell (916) 804-3012 Ytaylor.art@gmail.com 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. 4.3.d Packet Pg. 56 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Yoshio Taylor Page 5 of 18 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, in addition to other rights or remedies available to the City under the Agreement or applicable law, the City shall have the right to terminate this Agreement immediately and shall have no further obligations under this Agreement. 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. Artist shall have 20 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 or substantially similar image, design, dimensions and materials as the Artwork. Artist may create works that utilize or incorporate various individual art elements that comprise the Artwork, 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 Artwork, and (3) is not displayed in an environment that is the same or substantially similar to the environment in which the Artwork is to be displayed at the site. 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 City, in its sole discretion, at any time during the term of this Agreement, desires the removal of any such persons, Artist shall, immediately upon receiving notice from City of such desire of City, cause the removal of such person or persons, unless in the Artist's sole opinion, the skill or creativity of such person or persons is essential to the creation of the Work. 4.3.d Packet Pg. 57 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Yoshio Taylor Page 6 of 18 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. 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 Artwork 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, 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. 4.3.d Packet Pg. 58 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Yoshio Taylor Page 7 of 18 9.4 Although City strives to maintain the Public Art Collection in good repair and condition, 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. 9.5 The anticipated life span of the Artwork is 25 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 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 absolute right to alter the Artwork in City’s sole judgment. 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: 4.3.d Packet Pg. 59 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Yoshio Taylor Page 8 of 18 10.3.1 Notice. Where time permits, City shall make reasonable good faith efforts to notify Artist at least 20 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 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, 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 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 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). 4.3.d Packet Pg. 60 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Yoshio Taylor Page 9 of 18 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 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, an unlimited, 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. 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 to maintain and support City’s Public Art Collection or for any other public purposes that City deems appropriate. 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. 4.3.d Packet Pg. 61 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Yoshio Taylor Page 10 of 18 11.4. Credit. All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: “Yoshio Taylor (c), March 2, 2020.” 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. 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. In the event that City’s use of the Artwork creates trademark, service mark or trade dress rights in connection with the Artwork, City shall have an exclusive and irrevocable right in such trademark, service mark, or trade dress. 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 Artwork s hall 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 make a good faith effort to 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. 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. Artist may retain originals of such documents and items and provide copies to City. 4.3.d Packet Pg. 62 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Yoshio Taylor Page 11 of 18 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. 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. 4.3.d Packet Pg. 63 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Yoshio Taylor Page 12 of 18 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. 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. The Contract Administrator may condition approval of an increase in deductible or self- insured retention levels with a requirement that Artist procure a bond, guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them. 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. 4.3.d Packet Pg. 64 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Yoshio Taylor Page 13 of 18 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 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 d uty 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. 4.3.d Packet Pg. 65 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Yoshio Taylor Page 14 of 18 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. 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, sex, gender, religion (including religious dress and grooming practices), national origin, ancestry, physical or mental disability, medical condition (including cancer and genetic characteristics), marital status, age, sexual orientation, color, creed, pregnancy, genetic information, gender identity or expression, political affiliation or belief, military/veteran status, or any other classification protected by applicable local, state, or federal laws (each a “Protected Characteristic”), 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 include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. 16.6 (Intentionally deleted) 4.3.d Packet Pg. 66 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Yoshio Taylor Page 15 of 18 Section 17. TERMINATION AND MODIFICATION. 17.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Artist. Artist may cancel this Agreement upon thirty (30) days’ written notice to City and shall include in such notice the reasons for cancellation. 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. Similarly, unless authorized by the Contract Administrator, City 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. 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 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 Exhibit A not finished by 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 City would have paid Artist pursuant to Section 2 if Artist had completed the work. 4.3.d Packet Pg. 67 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Yoshio Taylor Page 16 of 18 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 48 hours 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. 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. The reports, including any copies, shall be 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 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. Artist hereby agrees to deliver those documents to the City upon termination of the 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 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. 4.3.d Packet Pg. 68 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Yoshio Taylor Page 17 of 18 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 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. 4.3.d Packet Pg. 69 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Yoshio Taylor Page 18 of 18 19.10 Notices. Any written notice to Artist shall be sent to: Yoshio Taylor 95 Sandburg Dr. Sacramento, CA 95819 (916) 456-9549, cell (916) 804-3012 Ytaylor.art@gmail.com 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 Yoshio Taylor, Artist Attest: ____________________________ Caroline Soto, City Clerk Approved as to Form: ____________________________ John Bakker, City Attorney 4.3.d Packet Pg. 70 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the EXHIBIT A City of Dublin and Yoshio Taylor Page 1 of 5 EXHIBIT A ARTIST PROPOSAL Yoshio Taylor’s design comprises decorative tiled installations on low curved cement seating areas, set around the playground area on Benches A and B. Each one comprises a design for the wall front, and on top of a concrete substrate. The decorative tiles will be facing inward towards the play areas. The seat wall side facing the landscaping will be without images. The Heritage and Cultural Arts and Park and Community Services Commissions agreed to include Bench C (side facing playground mandatory, top side optional) possibly sacrificing some of the intricate carving detail in all of the benches in order to stretch the budget to decorate three benches. The types of tile used will include handmade and carved relief terra-cotta tiles, with representational images such as numbers, letters, horses, trains, flowers and wildlife. Imported porcelain tiles and glass tiles will represent water and unglazed commercial tiles will be used as a community involvement project with Dublin school children. Schools in the surrounding area will be contacted so children can participate in designing some of the titles. Members of the Dublin Historical Preservation Association reviewed the artwork and provided historical input which the artist was given. The artist will incorporate some of their suggestions into the final design. --------------------------------------------------------------------------------------------------------------------- Yoshio Taylor June 6, 2019 Proposal Narrative for Jordan Ranch Neighborhood Park My proposal for the project is to create a design that is educational as well as visually enriching to the park site. The design will reflect a beautiful natural environment and will show some of the historical significance of Dublin and its surrounding area. One of the main images in the design you will find is an emphasis on nature. The deer, bird and rabbit will represent wildlife and oak trees. Flower and water images will represent the rich nature of Dublin and its neighboring regions past and present. The water in the form of perennial lakes, creeks and vernal springs and marsh land affected the development of Dublin until around 1880, and was an important part of the history of Dublin. Water will be represented by the blue tile design. (to be cont.) 4.3.d Packet Pg. 71 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the EXHIBIT A City of Dublin and Yoshio Taylor Page 2 of 5 EXHIBIT A ARTIST PROPOSAL The Transcontinental Railroad connected the East Coast with the West Coast in the early 1860's and is a significant historical event which affected many of the developments in the surrounding area. It is represented by the stylized images of horses and trains "The Iron Horse". The types of tiles to be used in the art work will include handmade and carved relief terra- cotta tiles, with representational images such as numbers, letters, horses, trains, flowers and wildlife. Imported porcelain tiles and glass tiles will represent "water" and "4x4"3/16" unglazed commercial tiles will be used as a part of the "Community involvement in the project". The tiles will be glazed by local school children with their interpretation of Dublin, Ca. The installation of the tiles is done by using "Thinset" mortar and grout. The finished surface will be durable and clean. The artwork will serve as a gentle reminder for the public/visitor and local school children to appreciate the environment they live in. It will also be a unique and significant part of the park, and an identifying element for the city of Dublin. • Artist Statement: see attachment • Bench A and B (C,D,F may be added later) • Proposed materials: Hand-made relief Terra-Cotta tiles, imported small mosaic porcelain and glass tiles, unglazed commercial 4"x4"x ¼' paver tiles, Thin-set motar, tile grout, grout sealer. • Special equipment is not needed, the installation will be done by artist and his assistant. (professional tile mason will be hired to install if artist is not able to install) • Maintenance with pressure-washer as needed. • Public is encouraged to interact with art work. It is safe. 4.3.d Packet Pg. 72 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the EXHIBIT A City of Dublin and Yoshio Taylor Page 3 of 5 EXHIBIT A ARTIST PROPOSAL 4.3.d Packet Pg. 73 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the EXHIBIT A City of Dublin and Yoshio Taylor Page 4 of 5 EXHIBIT A ARTIST PROPOSAL 4.3.d Packet Pg. 74 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the EXHIBIT B City of Dublin and Yoshio Taylor Page 2 of 5 EXHIBIT A ARTIST PROPOSAL 4.3.d Packet Pg. 75 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the EXHIBIT B City of Dublin and Yoshio Taylor Page 3 of 5 EXHIBIT B SCOPE OF WORK Timeline: September, 2019 - March, 2020: Planning, Community Involvement component, final submittal of artwork Installation completed by June 30, 2020: Artist travel to Dublin. 6-8 trips total including 3 trips for pre-installation, 3 trips for installation, 2 possible trips for project inspection 4.3.d Packet Pg. 76 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the EXHIBIT C City of Dublin and Yoshio Taylor Page 2 of 1 EXHIBIT C COMPENSATION Budget: Artist fee $ 17,300 Studio assistant $2,000 Field coordination $0 Additional renderings, CAD, drawings and models (if needed) $2,000 Materials and supplies $3,500 Art installation $6,000 Equipment rental $0 Interpretive/ ID plaque, directional signage $800 Administrative expenses $3,000 Artist travel to Dublin. 6-8 trips total including 3 trips for pre-installation, 3 trips for installation, & 2 possible trips for project inspection $800 Supplies for community outreach activities $1,600 Project contingency $4,000 Total: $41,000 4.3.d Packet Pg. 77 Attachment: 4. Exhibit A to the Resolution – Yoshio Taylor Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan ATTACHMENT 1 RESOLUTION NO. XX - 19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * * * APPROVING AN AGREEMENT WITH RIDE ART STUDIO FOR A PUBLIC ART PROJECT AT SEAN DIAMOND PARK WHEREAS, the 2016-2021 Capital Improvement Program includes a project to design, fabricate and install permanent public art at Sean Diamond Park; and WHEREAS four public artists who pre-qualified according to the Public Art Master Plan process were invited to submit design proposals to design, fabricate and install a permanent public art piece; and WHEREAS, the Public Art proposal by Ride Art Studio was recommend by the Sean Diamond Park Art Selection Committee, Heritage and Cultural Arts Commission and Parks and Community Services Commission; and WHEREAS, Ride Art Studio has demonstrated ability and availability to perform said services. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does approve the Agreement with Ride Art Studio attached as Exhibit A and authorizes the City Manager to execute the Agreement and make any minor modifications as necessary to carry out the intent of this Resolution. PASSED, APPROVED AND ADOPTED this 1st day of October 2019, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ______________________________ Mayor ATTEST: _________________________________ City Clerk 4.3.e Packet Pg. 78 Attachment: 5. Resolution Approving a Public Art Installation Agreement with RideArt Studios for Sean Diamond Park (Public Art Agreements Public Art Agreement between the City of Dublin and Ride Art Studio Page 1 of 18 PUBLIC ART AGREEMENT BETWEEN THE CITY OF DUBLIN AND RIDE ART STUDIO THIS AGREEMENT is made by and between the City of Dublin (“City”) and Ride Art Studio (“Artist”) as of, ________________ 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 October 1, 2019, authorized the City Manager to negotiate an agreement between City and Artist for the preparation of a final design, fabrication and installation for public art at Sean Diamond Park (4801 La Strada Dr.) 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. In the event that City, 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 City of such desire of City, reassign such person or persons. 4.3.f Packet Pg. 79 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Ride Art Studio 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 public art project at Sean Diamond Park. The artwork will be installed in the center of the park in an open circular area with a diameter of 22’ as 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 The City may, at any time, request the Artist in writing to (a) revise portions of the services that he/she has previously completed in a satisfactory manner; (b) delete portions of the Scope of the Work that the Artist has not yet performed; (c) perform additional work beyond the Scope of Work to be provided in Exhibit B; 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 be obligated to agree to any such request. 2.4 In the event the request for change is agreed to by the Artist, this Agreement shall be amended, in 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 Artist does not agree to the request, the City shall be entitled to terminate the Agreement for 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 the City. Section 3. COMPENSATION. City hereby agrees to pay Artist a sum not to exceed $42,000 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. 4.3.f Packet Pg. 80 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Ride Art Studio Page 3 of 18 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;  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 $42,000. The Artist shall, without additional compensation, correct or revise any errors, omissions, or other deficiencies in his/her Work. 4.3.f Packet Pg. 81 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Ride Art Studio Page 4 of 18 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. 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 resulting, directly or indirectly, from delays in performance caused by Artist's 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, 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 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: Saori Ide & Jonathan Russell 2410 Valley St. Berkeley, CA 94702 (415) 902-0343 saori@rideartstudio.com, jr@rideartstudio.com 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. 4.3.f Packet Pg. 82 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Ride Art Studio Page 5 of 18 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, in addition to other rights or remedies available to the City under the Agreement or applicable law, the City shall have the right to terminate this Agreement immediately and shall have no further obligations under this Agreement. 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. Artist shall have 20 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 or substantially similar image, design, dimensions and materials as the Artwork. Artist may create works that utilize or incorporate various individual art elements that comprise the Artwork, 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 Artwork, and (3) is not displayed in an environment that is the same or substantially similar to the environment in which the Artwork is to be displayed at the site. 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 City, in its sole discretion, at any time during the term of this Agreement, desires the removal of any such persons, Artist shall, immediately upon receiving notice from City of such desire of City, cause the removal of such person or persons, unless in the Artist's sole opinion, the skill or creativity of such person or persons is essential to the creation of the Work. 4.3.f Packet Pg. 83 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Ride Art Studio Page 6 of 18 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. 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 Artwork 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, 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. 4.3.f Packet Pg. 84 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Ride Art Studio Page 7 of 18 9.4 Although City strives to maintain the Public Art Collection in good repair and condition, 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. 9.5 The anticipated life span of the Artwork is 25 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 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 absolute right to alter the Artwork in City’s sole judgment. 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 20 calendar days prior to authorizing any alteration of the Artwork, at the last 4.3.f Packet Pg. 85 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Ride Art Studio Page 8 of 18 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 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, 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 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 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). 4.3.f Packet Pg. 86 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Ride Art Studio Page 9 of 18 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 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, an unlimited, 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. 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 to maintain and support City’s Public Art Collection or for any other public purposes that City deems appropriate. 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. 4.3.f Packet Pg. 87 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Ride Art Studio Page 10 of 18 11.4. Credit. All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: “Ride Art Studio (c), March 2, 2020.” 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. 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. In the event that City’s use of the Artwork creates trademark, service mark or trade dress rights in connection with the Artwork, City shall have an exclusive and irrevocable right in such trademark, service mark, or trade dress. 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 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 make a good faith effort to 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. 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. Artist may retain originals of such documents and items and provide copies to City. 4.3.f Packet Pg. 88 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Ride Art Studio Page 11 of 18 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. 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. 4.3.f Packet Pg. 89 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Ride Art Studio Page 12 of 18 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. 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. The Contract Administrator may condition approval of an increase in deductible or self- insured retention levels with a requirement that Artist procure a bond, guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them. 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. 4.3.f Packet Pg. 90 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Ride Art Studio Page 13 of 18 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 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. 4.3.f Packet Pg. 91 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Ride Art Studio Page 14 of 18 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. 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, sex, gender, religion (including religious dress and grooming practices), national origin, ancestry, physical or mental disability, medical condition (including cancer and genetic characteristics), marital status, age, sexual orientation, color, creed, pregnancy, genetic information, gender identity or expression, political affiliation or belief, military/veteran status, or any other classification protected by applicable local, state, or federal laws (each a “Prot ected Characteristic”), 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 include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. 16.6 (Intentionally deleted) 4.3.f Packet Pg. 92 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Ride Art Studio Page 15 of 18 Section 17. TERMINATION AND MODIFICATION. 17.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Artist. Artist may cancel this Agreement upon thirty (30) days’ written notice to City and shall include in such notice the reasons for cancellation. 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. Similarly, unless authorized by the Contract Administrator, City 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. 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 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 Exhibit A not finished by 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 City would have paid Artist pursuant to Section 2 if Artist had completed the work. Section 18. KEEPING AND STATUS OF RECORDS. 4.3.f Packet Pg. 93 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Ride Art Studio Page 16 of 18 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 48 hours 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. 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. The reports, including any copies, shall be 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 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. Artist hereby agrees to deliver those documents to the City upon termination of the 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 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. 4.3.f Packet Pg. 94 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Ride Art Studio Page 17 of 18 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 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: 4.3.f Packet Pg. 95 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the City of Dublin and Ride Art Studio Page 18 of 18 Saori Ide & Jonathan Russell 2410 Valley St. Berkeley, CA 94702 (415) 902-0343 saori@rideartstudio.com, jr@rideartstudio.com 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 ARTISTS ____________________________ ______________________________ Chris Foss, City Manager Ride Art Studio, Saori Ide, Artist Attest: ______________________________ Ride Art Studio, Jonathan Russell, Artist ____________________________ Caroline Soto, City Clerk Approved as to Form: ____________________________ John Bakker, City Attorney EXHIBIT A 4.3.f Packet Pg. 96 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the EXHIBIT A City of Dublin and Ride Art Studio Page 2 of 8 ARTIST PROPOSAL Artist shall provide a final design, fabrication and installation of a public art project at Sean Diamond Park. The artwork will be installed in the center of the park in an open circular area with a diameter of 22’. EXHIBIT A 4.3.f Packet Pg. 97 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the EXHIBIT A City of Dublin and Ride Art Studio Page 3 of 8 ARTIST PROPOSAL EXHIBIT A 4.3.f Packet Pg. 98 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the EXHIBIT A City of Dublin and Ride Art Studio Page 4 of 8 ARTIST PROPOSAL EXHIBIT A 4.3.f Packet Pg. 99 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the EXHIBIT A City of Dublin and Ride Art Studio Page 5 of 8 ARTIST PROPOSAL EXHIBIT A 4.3.f Packet Pg. 100 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the EXHIBIT A City of Dublin and Ride Art Studio Page 6 of 8 ARTIST PROPOSAL EXHIBIT A 4.3.f Packet Pg. 101 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the EXHIBIT A City of Dublin and Ride Art Studio Page 7 of 8 ARTIST PROPOSAL EXHIBIT A 4.3.f Packet Pg. 102 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the EXHIBIT A City of Dublin and Ride Art Studio Page 8 of 8 ARTIST PROPOSAL EXHIBIT A 4.3.f Packet Pg. 103 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the EXHIBIT A City of Dublin and Ride Art Studio Page 9 of 8 ARTIST PROPOSAL EXHIBIT B 4.3.f Packet Pg. 104 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the EXHIBIT B City of Dublin and Ride Art Studio Page 2 of 3 SCOPE OF WORK (To be installed by April 30, 2020) 4.3.f Packet Pg. 105 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the EXHIBIT B City of Dublin and Ride Art Studio Page 3 of 3 EXHIBIT B SCOPE OF WORK 4.3.f Packet Pg. 106 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the EXHIBIT B City of Dublin and Ride Art Studio Page 4 of 3 EXHIBIT B SCOPE OF WORK 4.3.f Packet Pg. 107 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Public Art Agreement between the EXHIBIT C City of Dublin and Ride Art Studio Page 2 of 1 EXHIBIT C COMPENSATION 4.3.f Packet Pg. 108 Attachment: 6. Exhibit A to the Resolution – RideArt Studio Installation Agreement (Public Art Agreements for Butterfly Knoll Park, Jordan Page 1 of 2 STAFF REPORT CITY COUNCIL DATE: October 1, 2019 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Encroachment Agreement with Kinder Morgan for Electric Facilities in Scarlett Drive and Don Biddle Community Park Prepared by: Laurie Sucgang, City Engineer EXECUTIVE SUMMARY: The City Council will consider approval of an Encroachment Agreement for electric facilities and appurtenances within Scarlett Drive and Don Biddle Community Park property for SFPP, L.P., a Delaware limited liability company, (a.k.a. Kinder Morgan) serving an existing pipeline valve box. STAFF RECOMMENDATION: Adopt the Resolution Approving an Encroachment Agreement with SFPP, L.P., a Delaware limited liability company. FINANCIAL IMPACT: Approval of the Encroachment Agreement with SFPP, L.P., a Delaware limited liability company (a.k.a. Kinder Morgan) does not impact the General Fund. All Staff costs to negotiate and process the agreement are borne by Kinder Morgan. Once the agreement is executed, Kinder Morgan will pay the City $20,000 for the use, operation, and maintenance of their facilities within the right-of-way and City-owned park property for a period of 10 years. DESCRIPTION: SFPP, L.P., a Delaware Limited Liability company (a.k.a. Kinder Morgan), operates a pipeline valve box within an existing 10-foot wide easement running parallel to Scarlett Drive and the Iron Horse Trail. There are existing and proposed facilities serving the pipeline valve box that are located outside of the 10-foot wide easement, which are generally described as a deep anode well and a trench for an electrical line, depicted in Attachment 2. The existing deep anode well is located within Scarlett Drive right -of-way. The proposed trench and Kinder Morgan’s access is located within Don Biddle Community Park within a future parking lot adjacent to Horizon Parkway and within a concrete 4.4 Packet Pg. 109 Page 2 of 2 pathway in the northwest corner of the park. The Encroachment Agreement will allow for Kinder Morgan to maintain these facilities, which will be located outside of Kinder Morgan’s existing 10-foot wide easement, for a period of 10 years with the option to extend the term for one additional 10 -year term, which will require an extension payment adjusted for inflation. STRATEGIC PLAN INITIATIVE: None. NOTICING REQUIREMENTS/PUBLIC OUTREACH: None. ATTACHMENTS: 1. Resolution Approving Encroachment Agreement with SFPP, L.P., a Delaware Limited Liability Company 2. Exhibit A to Resolution - Encroachment Agreement for Electric Facilties and Appurtenances with Kinder Morgan 4.4 Packet Pg. 110 RESOLUTION NO. XX-19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********* APPROVING AN ENCROACHMENT AGREEMENT WITH SFPP, L.P., A DELAWARE LIMITED LIABILITY COMPANY WHEREAS, SFPP, L.P. a Delaware limited liability company (a.k.a. Kinder Morgan), operates a pipeline and valve box within an existing 10-foot wide easement running parallel to Scarlett Drive and adjacent to the Don Biddle Community Park; and WHEREAS, an existing deep anode well, trench for an electric line, and access are located outside of the existing 10-foot wide Kinder Morgan easement, and are required to deliver power and serve the pipeline valve box; and WHEREAS, the City and Kinder Morgan have developed an Encroachment Agreement that will establish the responsibilities of each party, payment, terms and conditions under which licensee must operate and maintain the encroachments within Scarlett Drive right of way and Don Biddle Community Park property. NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve an Encroachment Agreement for Electric Facilities and Appurtenances with SFPP, L.P., a Delaware limited liability company. BE IT FURTHER RESOLVED that the City Manager is authorized to execute the Agreement in substantially the form attached hereto as Exhibit A to this Resolution, and to take such other and further action, as necessary and appropriate, to carry out the intention of this Resolution. PASSED, APPROVED AND ADOPTED this 1ST day of October, 2019, by the following vote: AYES: NOES: ABSENT: ABSTAIN: _______________________________ Mayor ATTEST: ______________________________ City Clerk 4.4.a Packet Pg. 111 Attachment: 1. Resolution Approving Encroachment Agreement with SFPP, L.P., a Delaware Limited Liability Company (Encroachment Recording Requested By: City of Dublin Public Works Department No fee for recording pursuant to Gov’t Code Section 27383 When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 SPACE ABOVE TH IS LINE FOR RECORDER’S USE ENCROACHMENT AGREEMENT BETWEEN CITY OF DUBLIN AND SFPP, L.P, a Delaware limited liability company SCARLETT DRIVE AND PORTIONS OF APN 986-62-2 & 986-1-3-2 DUBLIN, CALIFORNIA THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION (Govt. Code 27361.6) 4.4.b Packet Pg. 112 Attachment: 2. Exhibit A to Resolution - Encroachment Agreement for Electric Facilties and Appurtenances with Kinder Morgan Parcel: APNs 986-62-2 & 986-1-3-2 County: Alam eda State: Calif ornia ENCROACHM ENT AGREEM ENT This Encroachm ent Agreem ent ("Agreem ent") is m ade and entered on October 1, 2019 (“Effective Date”), by and between SFPP, L.P., a Delaware Lim ited Liability com pany (“Licensee”) and the City of Dublin, a m unicipal corporation ("City"). The Licensee and City are collectively referred to herein as the “Parties.” 1. Perm ission is hereby given to Licensee by City for the purpose of operation, maintenance and usage of one (1) deep anode well and one (1) electrical line with connected appurtenances (“Encroachment”) within the boundaries depicted in Exhibit A, attached hereto and incorporated herein by reference (the “Licensed Area”). 2. Together with access ingress and egress to the Licensed Area, Licensee shall operate, maintain, and use the Encroachm ent in accordance with Licensee’s O&M Procedures. 3. This Agreem ent shall be valid for a period of ten (10) years following the Effective Date (“Initial Term ”). Licensee has an option to extend the Initial Term for one (1) additional ten (10) year term by m ak ing an Extension Paym ent to City as defined in Section 4 below. 4. Licensee shall pay City $20,000 upon execution of this Agreem ent. If Licensee exercises its option to extend this Agreem ent beyond the Initial Term , Licensee shall rem it paym ent to City of an additional $20,000, adjusted for inflation, prior to the end of the Initial Term (“Extension Paym ent”). 5. City shall not reduce the depth of cover on, or alter the drainage of the Licensed Area without Licensee’s prior courtes y review. 6. Parties agree to not construct any perm anent structure, building, or sim ilar perm anent obstruction within the Licensed Area, other than the above-referenced authorized Encroachment. If either Party plans to construct any perm anent structures, buildings, or obstruction within the Licensed Area, plans shall be subject to a courtesy review by both Parties. 7. City shall not plant shrubs or trees within the Licensed Area, without Licensee’s prior courtesy review. 8. City shall not operate or perm it the operation of any heavy equipm ent on or over the Encroachm ent without Licensee’s prior courtesy review. City shall com ply with all precautionary m easures required by Licensee to protect the Encroachm ent. 9. Licensee shall not replace or m odify the Encroachment without City’s prior written consent. 10. Licensee shall be solely responsible for the construction, ownership, operation, m aintenance, use, and rem oval of the Encroachm ent and for any and all expenses incurred by City and/or dam age to City property as a result of Licensee’s exercise of its rights under this Agreem ent. Licensee shall reim burse City fully for any such expense or dam age. Licensee agrees to indem nif y and hold harm less City, its parent, affiliates, agents, employees, contractors, and subcontractors and their respective successors and assigns (individually and collectively k nown as the “City Indem nities”), against any claim , dem and, loss, cost, liability, expense, or cause of action of any party (including, but not lim ited to reasonable attorney’s fees) in any way arising from or related to (1) the existence of the Encroachm ent, (2) Licensee’s exercise of its rights under this Agreem ent, (3) Licensee’s breach of its obligations under this Agreement, or (4) any cause of action resulting from dam age to City property, except where such loss, cost, liability, or expense was caused solely by the gross negligence or willful m isconduct of City or City Indem nitees. Licensee’s indem nity obligations will survive the term ination of this Agreem ent for any reason. 4.4.b Packet Pg. 113 Attachment: 2. Exhibit A to Resolution - Encroachment Agreement for Electric Facilties and Appurtenances with Kinder Morgan 11. In the event Licensee shall, at any tim e, desire to abandon or rem ove; or if, in the judgm ent of City, it is necessary that the Encroachm ent shall be relocated or altered in any way; or if, for any other reason, City deem s it necessary for Licensee to relocate or alter the Encroachm ent, City shall notif y Licensee of the necessity for such relocation and use reasonable efforts to m inimize the distance of said relocation and Licensee shall alter or relocate the Encroachm ent, at its sole cost and expense, as shall be deem ed necessary in the judgm ent of the Parties. In the event of such alteration or relocation, Licensee agrees to restore the Licensed Area and any other im pacted area, as nearly as practicable, to a condition acceptable to the City Engineer. 12. In the event Licensee deems the Encroachm ent is no longer necessary, Licensee will notify the City of this intent to abandon. Parties agree to commence a courtesy review upon form al notification and will not reasonably withhold acceptance of abandonm ent. In the event that both Parties reasonably agree that acceptance of abandonm ent is unfeasible, Licensee agrees to remove the Encroachment solely at its own cost. 13. Should Licensee rem ove the Encroachm ent, in its entirety, from the Licensed Area for a term of one hundred twenty (120) consecutive days, this Agreement shall be deem ed null and void. 14. Should Licensee fail to adhere to the provisions of this Agreement, City m ay have no adequate remedy at law and Licensee agrees that m onetary dam ages m ay not be sufficient. Licensee, therefore, consents to City seek ing injunctive relief or an em ergency order to enforce the provisions, or prevent breach of, this Agreem ent without the necessity to post a bond. 15. During the life of this Agreem ent, should Licensee require City to pay for engineering and/or inspection costs related to City work near Licensee’s pipeline anywhere within the City, Licensee agrees to m eet in good faith with the City to waive, reduce and/or negotiate said costs prior to invoicing the City. 16. Lim itation of Liability. Notwithstanding any other provision of this Agreem ent, neither Party shall be liable to the other hereunder for any indirect, consequential, special or punitive damages, whether sounding in contract or in tort. 17. Insurance. If reasonably available, Licensee shall obtain and m aintain in effect a com bined single lim it policy of liability insurance in an am ount not less than Two Million Dollars ($2,000,000) covering Licensee’s use of the Encroachm ent and nam e the City as an additional insured. 18. Nothing contained herein shall be deem ed to constitute any warranty or representation by City as to its authority to perm it the Encroachm ent as proposed by Licensee. 19. If any part, term or provision of this Agreem ent is, by a court of com petent jurisdiction or regulator y authority having jurisdiction over the Licensed Area held to be illegal, void or unenforceable, or to be in conflict with the law of the state which the Licensed Area lies, the validity of the rem aining provisions or portion hereof shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if this Agreem ent did not contain the particular part, term , or provision held to be invalid. 20. T he term s and conditions of this Agreem ent shall be binding on the Parties hereto, their heirs, successors and assigns. 4.4.b Packet Pg. 114 Attachment: 2. Exhibit A to Resolution - Encroachment Agreement for Electric Facilties and Appurtenances with Kinder Morgan IN WIT NESS WHEREOF, the Parties hereunto subscribed their nam es as of the date first above written. LICENSEE SFPP, L.P., a Delaware Limited Liability company By: Kinder Morgan Operating L.P. "D", its general partner, By: Kinder Morgan G.P., Inc., its general partner Floyd C. Robertson Attorney-in-fact CIT Y City of Dublin 3351278.1 4.4.b Packet Pg. 115 Attachment: 2. Exhibit A to Resolution - Encroachment Agreement for Electric Facilties and Appurtenances with Kinder Morgan 4690 CHABOT DRIVE, SUITE 200 PLEASANTON, CA 94588 PHONE: (925) 227-9100 FAX: (925) 227-9300 E N G E E R SN N N S S SRRREEPAUYO {\Q0;DATE: AUGUST 30, 2019}{\Q0;JOB NO. 081076}{\Q0;SHEET 1 OF 1}G:\\JOB2008\\081076PH2AB\\CAD FILES\\00-EXHIBITS\\KINDER MORGAN EXH 8-22-19.DWG 8/22/2019 8:51:10 AM ROGER FONG{\LKINDER MORGAN VALVE BOX LOCATION EXHIBIT} N 20 60402001 inch = ft. W W W R R R WC WC WC M2 I 76T8 C1C1 C1 6 G \A1;10'\A1;10'EX 42"SDEX 42"SDSCARLETT DRIVEEX 60"SDEX JT\A1;10'TRANSFORMER AND SWITCH GEAR FOR KINDER MORGAN \A1;EX 6'\A1;PSEEX JTEX JT TRANSFORMER AND SWITCH GEAR FOR PARK (SIZE TO BE DETERMINED BY OTHERS) JT JT JT 340340341 RIDGE344 343 337339 342 342 338 341 342 TOE 337.5338TOE 336TOE 338 \A1;PROPOSED PSE \A1;EXISTING PSE 25.00'10.00' 84.85'10.00'84.85'192.75'153.30'53.01' 81.56' 4.4.b Packet Pg. 116 Attachment: 2. Exhibit A to Resolution - Encroachment Agreement for Electric Facilties and Appurtenances with Kinder Morgan (Encroachment Agreement with Kinder Morgan for Electric Facilities within Scarlett Drive Right of Way) Page 1 of 2 STAFF REPORT CITY COUNCIL DATE: October 1, 2019 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Words for the Imagine Playground Art Prepared by: La Shawn Butler, Parks and Community Services Director EXECUTIVE SUMMARY: The City Council will consider word selection for the public art at the Imagine Playground. STAFF RECOMMENDATION: Approve the word selection for public art at the Imagine Playground. FINANCIAL IMPACT: The adopted Capital Improvement Project budget for the Imagine Playground Art PK0419) is $336,840, including $ 330,000 for improvements (payment to artist). The funding source is the Public Art Fund. DESCRIPTION: On February 19, 2019, City Council unanimously approved the proposed artwork by artist Barbara Grygutis, which will include laser cut stainless steel words reflecting Dublin's diversity to be embedded in the walkway. The artist requested that the City provide approved words, with the artist being given license to select from among them, depending on which words fit best within the design; however, she has agreed to do her best to fit in all approved words. The public was invited to select the words to be included via survey. The survey was published on Open City Hall May 2-15, 2019, listing words gleaned from public comment received during the Imagine Playground public meeting and the artists own statement about the artwork. Forty (40) people responded to the survey, with twenty-five (25) respondents writing in suggested words. 4.5 Packet Pg. 117 Page 2 of 2 On June 13, 2019 the Heritage and Cultural Arts Commission voted 4 -1 to recommend the following 12 words: Connect- Play - Love - Care - Share - Listen - Accept - Respect - Help - Grow - Friends - Equal Staff recommends City Council approve the 12 words to be included in the walkway of the Imagine Playground project. STRATEGIC PLAN INITIATIVE: N/A NOTICING REQUIREMENTS/PUBLIC OUTREACH: N/A ATTACHMENTS: None. 4.5 Packet Pg. 118 Page 1 of 2 STAFF REPORT CITY COUNCIL DATE: October 1, 2019 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Manufacturing Day Proclamation Prepared by: Suzanne Iarla, Management Analyst II EXECUTIVE SUMMARY: The City Council will proclaim Friday, October 4, 2019 as Manufacturing Day in Dublin. Sponsored by the National Association of Manufacturers, the Manufacturing Day campaign began in 2012 as an effort to positively change the public perception of modern manufacturing. STAFF RECOMMENDATION: Present the proclamation. FINANCIAL IMPACT: None. DESCRIPTION: The national Manufacturing Day event started in 2012 as an annual celebration of modern manufacturing during which manufacturers invite their communities, including students, educators, business people, media and politicians, to their facilities in a collective effort to educate visitors about manufacturing career opportunities and improve public perceptions of manufacturing. The City of Dublin has participated in this national event for the past few years. This year, the City is participating in the Tri-Valley Manufacturing Day event to be held on Friday, October 4, 2019. Tri-Valley Manufacturing Day is a collaborative effort between local edu cational institutions, participating manufacturing businesses, and the cities of Dublin, Livermore and Pleasanton. The goal is to celebrate modern manufacturing and inspire the next generation of manufacturers. On Manufacturing Day, local high school stude nts from the Tri-Valley Regional Occupation Program and college students from Las Positas Community College will attend multiple facility tours and presentations at local 4.6 Packet Pg. 119 Page 2 of 2 manufacturers, including Kensington Laboratories and AMP Printing in Dublin and other manufacturers in Livermore and Pleasanton. NOTICING REQUIREMENTS/PUBLIC OUTREACH: None. ATTACHMENTS: 1. Manufacturing Day Proclamation 4.6 Packet Pg. 120 A PROCLAMATION OF THE CITY COUNCIL CITY OF DUBLIN CALIFORNIA “Dublin Manufacturing Day” October 4, 2019 WHEREAS, the United States National Institute of Science and Technology announced October 4, 2019 as National Manufacturing Day. We join the nation to celebrate modern manufacturing and inspire the next generation of manufacturers to keep our economy growing stronger; and WHEREAS, collaboration between government, education, and industry is essential to job creation in our community and manufacturing businesses in Dublin provide vital employment opportunities and services for our residents; and WHEREAS, in partnership with the cities of Livermore and Pleasanton as well as local educational institutions, Dublin is actively involved in the 2019 Tri-Valley Manufacturing Day event; and WHEREAS, Manufacturing Day is a time to celebrate and to raise awareness of our manufacturing businesses and their contributions to our communities, our economy, and our nation; NOW, THEREFORE, the City Council proclaims October 4, 2019 as “Manufacturing Day” in Dublin and encourages residents to learn more about the City’s manufacturing businesses and how we can support them. DATED: October 1, 2019 Mayor David G. Haubert Vice Mayor Melissa Hernandez Councilmember Arun Goel Councilmember Jean Josey Councilmember Shawn Kumagai 4.6.a Packet Pg. 121 Attachment: 1. Manufacturing Day Proclamation (Manufacturing Day) Page 1 of 4 STAFF REPORT CITY COUNCIL DATE: October 1, 2019 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Revisions to the Capital Improvement Program - Dublin Historic Park Master Plan Improvements and Establishing a New Memorial Program at the Current Historic Cemetery Prepared by: La Shawn Butler, Parks and Community Services Director EXECUTIVE SUMMARY: The City Council will review the future Capital Improvement Projects (CIPs) outlined in the Dublin Historic Park Master Plan and consider eliminating Phases 2 through 4 and Approve a Memorial Program at the current Historic Cemetery, as recommended by the Parks and Community Services Commission and the Heritage and Cultural Arts Commission. STAFF RECOMMENDATION: Eliminate Phases 2 through 4 from the Dublin Historic Park Master Plan ; Remove Phases 2 through 4 from the Capital Improvement Program; and Approve a Memorial Program for the current Historic Cemetery. FINANCIAL IMPACT: The City Council has a General Fund Committed Reserve of $3,779,138 for the cemetery expansion. If the City Council were to take action to remove Phases 2-4 of the Heritage Park, the Committed Reserve for the cemetery expansion would be appropriated to other Reserve funds – undesignated or assigned - at a later date with City Council action. Should the City Council approve a Memorial Program, fees would be established and included in the next Master Fee Schedule update, and the budget would be amended to reflect estimated costs and fee revenue. There is no net impact anticipated to any City fund. DESCRIPTION: Background On July 18, 2017, the City Council directed Staff to bring back for discussion a report 8.1 Packet Pg. 122 Page 2 of 4 outlining the progress of the improvements identified as a r esult of the Dublin Historic Park Master Plan. At the August 15, 2017 City Council meeting, Staff provided an overview of the Dublin Historic Park Master Plan, its phasing of improvements and related costs. As shown in the Plan (and table below), there are four future phases to the Park with costs totaling nearly $17 million, of which approximately $15.5 million falls outside of the current five - year Capital Improvement Program and remains without a funding source. The only funding in the General Fund Reserve is for a portion of improvements for Phase 4 - Cemetery Expansion of $3,779,138. Phase # Improvement Type Estimated Cost Phase 2 Orchard Garden $6,040,000 Phase 3 Freshwater Corner $2,930,000 Phase 4 Cemetery Expansion $6,554,000 Phase 5 Cemetery Renovation $1,475,000 At that meeting, the City Council directed Staff to review the current Dublin Historic Park Master Plan last updated by Royston Hanamoto Alley and Abey (RHAA) in June 2008, have a consultant do preliminary work to gauge feasibi lity of expanding the cemetery, and present the findings to the Heritage and Cultural Arts Commission for discussion. In 2018, RHAA, was contracted to update the economic analysis of expanding the cemetery. Their analysis indicated that the original bus iness model, using a partner to operate the cemetery, was no longer feasible. They estimated it would take more than 15 years of operation to break even on the initial capital outlay, more than 30 years to be profitable and more than 50 years to raise enou gh endowment funds to provide perpetual care for the grounds. The Parks and Community Services Commission considered this item at their June 17, 2019 meeting and voted unanimously to recommend the elimination of Phases 2, 3 and 4. During the July 11, 2019, Heritage and Cultural Arts Commission meeting, Staff reviewed the Capital Improvement Program for the Dublin Historic Park Master Plan. The Commission voted 5-0, with Commissioner Bennett absent and alternate Commissioner Wolski voting, to recommend the elimination of Phases 2 and 3, but wished to continue the discussion on Phase 4. At the September 12, 2019 Heritage and Cultural Arts Commission meeting, the Commission discussed the cemetery expansion, and Staff presented the Commission with a proposed memorial program without expanding the cemetery’s footprint. Following that discussion, the Commission voted 7-0 to recommend elimination of Phase 4 and recommend to the City Council the establishment of a Memorial Program to include benches, boulders, and trees. Memorial Program The following is a summary of the information presented to the Heritage and Cultural Arts Commission on September 12 and comprises Staff’s recommendation to the City 8.1 Packet Pg. 123 Page 3 of 4 Council for adoption. It should be noted that this Memorial Program deviates, in part, from the items mentioned by Parks and Community Services Commission but is consistent with the intent of providing opportunities to honor loved ones with a tribute through plantings and engraved remembrances without disrupting t he current aesthetics of the Cemetery. Staff researched the use of cremation monuments to be placed in designated areas around the cemetery. The cremation monuments presented were benches, boulders, or the planting of a tree with a memorial plaque. Benches Staff recommends the use of benches that could include cremated remains. Benches range in cost from $1,000-$3,000 (exclusive of shipping and handling or installation) and all costs would be borne by the applicant . In March 2018, the City Council approved the installation of a singular memorial bench for Edy Coleman at the cemetery. Boulders Staff recommends the inclusion of memorial boulders as they are designed to blend into the natural surroundings. The boulders would be hollowed for containment of cremation ashes or a cremation urn. This option would allow more flexibility on the placement of the memorial in the cemetery. Boulders range from $700-$2,500 (exclusive of shipping and handling or installation) and all costs would be borne by the customer. Trees Staff recommends the use of planting of trees alongside a memorial plaque. This option would not include a burial or storage of ashes or a cremation urn. Staff recommends hawthorn trees to assist in replacement of hawthorn trees at the cemetery that have been lost or are nearing the end of their life. The cost of the hawthorn tree, memorial plaque and installation will be borne by the customer. Staff has identified locations at the cemetery suitable to accommodate the Memorial Program. • Locations A and B show potential areas that could be graded and landscaped to become sitting spaces with great views of the park and cemetery. Location A could accommodate five benches and location B could accommodate three benches. • Location C illustrates the possible location of memorial boulders. This is the open space that is currently between the cemetery plots and Dublin Creek. The natural look of the boulders would blend in nicely to the environment without disrupting the current aesthetics of the cemetery. Staff estimates that 10 memorial boulders could be added to this location. • Location D is ideal for the tree and plaque options. This pathway is known as Hawthorn Way because it is lined with hawthorn trees. The Memorial Program would consist of the City specifying pre-approved designs for the chosen amenity (tree/ plaque, bench, and/or boulder). The cost of the purchase and 8.1 Packet Pg. 124 Page 4 of 4 installation of the memorial monument would then be paid by the customer for placement in designated spaces. Given the support of both the Heritage and Cultural Arts Commission and the Parks Commission, Staff recommends eliminating Phases 2 through 4 of the Dublin Historic Park Master Plan and to approve a Memorial Program for the Cemetery. NOTICING REQUIREMENTS/PUBLIC OUTREACH: N/A STRATEGIC PLAN INITIATIVE: N/A NOTICING REQUIREMENTS/PUBLIC OUTREACH: The report was sent to the Parks and Community Services and Heritage and Cultural Arts Commissions as a courtesy. ATTACHMENTS: 1. August 15, 2017 City Council Staff Report 2. Memorial Program Examples and Locations 8.1 Packet Pg. 125 PLEASE CLICK ON THE LINK BELOW FOR Attachment 1 of Item 8.1 8.1.a Packet Pg. 126 Attachment: 1. August 15, 2017 City Council Staff Report (Dublin Historic Park Master Plan) 8.1.b Packet Pg. 127 Attachment: 2. Memorial Program Examples and Locations (Dublin Historic Park Master 8.1.b Packet Pg. 128 Attachment: 2. Memorial 8.1.b Packet Pg. 129 Attachment: 2. Memorial Program Examples and Locations (Dublin Historic Park Master Plan) 8.1.b Packet Pg. 130 Attachment: 2. Memorial Program Examples and Locations (Dublin Historic Park Master Plan) Page 1 of 3 STAFF REPORT CITY COUNCIL DATE: October 1, 2019 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Overview of the City’s Inclusionary Zoning Regulations Prepared by: Jim Bergdoll, Senior Planner EXECUTIVE SUMMARY: The City Council will receive an informational report on the City of Dublin’s Inclusionary Zoning Regulations in comparison with the similar regulations in other Tri -Valley jurisdictions. STAFF RECOMMENDATION: Receive the report. FINANCIAL IMPACT: There is no fiscal impact associated with receiving this report. DESCRIPTION: On June 18, 2019, the City Council requested that Staff prepare an informational report that compares key provisions of the City’s Inclusionary Zoning Regulations (DMC Chapter 8.68) with those of the Tri-Valley cities of Livermore, Pleasanton, San Ramon and the Town of Danville. The City’s Inclusionary Zoning Regulations serve to assure that new housing development contributes to the attainment of the City’s housing goals by increasing the production of residential units affordable to households of very -low, low and moderate incomes. These Regulations prescribe the methods to satisfy this requirement. The following is a brief overview of the City’s Inclusionary Zoning Regulations: · All new residential development projects of 20 units or more shall construct 12.5% of the total number of dwelling units within the development as affordable deed restricted units. · The term of affordability restrictions is 55 years from the date of initial occupancy. 8.2 Packet Pg. 131 Page 2 of 3 · Affordable units shall be allocated to households with very -low, low and moderate income levels as follows: Rental Units Owner-Occupied Units Very-low income households 30% 0% Low income households 20% 40% Moderate income households 50% 60% · The City Council may grant incentives to encourage the production of additional affordable units in excess of the required 12.5%. Such incentives include, but are not limited to, the following: o Processing fee deferral o Impact fee deferral o Design modifications to affordable units that increase the feasibility of construction, such as relaxing development standards, open space requirements, and amenities, and reduced parking requirements. · The following exceptions to the Inclusionary Zoning Regulations may be granted with approval by the City Council: o Payment of In Lieu Fees: An applicant may pay fees in-lieu of constructing up to 40% of the required inclusionary units. The in-lieu fee is $197,253 per affordable unit and is adjusted annually based on the larger of the increases in either the HUD Fair Market Rent Limits for the Oakland- Fremont Metropolitan Area, or the change in the Bay Area Urban Consumer Price Index. o Off-Site Projects: An applicant may construct some or all of the required affordable units at an off-site location. o Land Dedication: An applicant may dedicate land to the City or City- designated local non-profit housing developer in lieu of construction some or all of the required affordable units o Credit Transfers: An applicant may fully or partially satisfy their affordable requirement with the transfer of Affordable Unit Credits created by the City Council. o Waiver of Requirements. The City Council may waive, in whole or in part, the affordable requirements, and approve alternative methods of compliance which the City Council finds meets the purpose of the Inclusionary Zoning Regulations. Attachment 1 provides a comparison of the City’s Inclusionary Zoning Regulations with those of the other Tri-Valley jurisdictions. NOTICING REQUIREMENTS/PUBLIC OUTREACH: None. 8.2 Packet Pg. 132 Page 3 of 3 ATTACHMENTS: 1. Inclusionary Zoning Regulations Summary Table by Tri-Valley Jurisdiction 8.2 Packet Pg. 133 Inclusionary Regulations Summary Table by Tri-Valley Jurisdiction (updated 9/13/2019) Dublin Danville Livermore Pleasanton San Ramon Projects subject to regulations 20+ units 8+ units 2+ units 15+ units 2+ units # of affordable units as a % of total project 12.5% 8-19 units or < 7 units/acre: 10% 20+ units or >7 units/acre: 15% 15% except: 10% in Downtown. Rental exempt outside of Neighborhood Plan areas or Downtown Single-family: 20% Multi-family: 15% Single-family: 10% Multi-family: 15% (including attached ownership) Payment in-lieu of constructing units (Fee charged) May pay in-lieu fee for max. 40% of requirement. ($197,253/affordable unit) <13 units/acre may pay in-lieu fee with Council approval. (No set fee) 10 units or less may pay in- lieu fee by right. 11+ units may pay in-lieu fee with Council approval. ($25.37/total sq. ft. within overall project) May pay in-lieu fee: Single-family detached ($44,248/each unit within overall project). Multi-family ($43,293/each unit within overall project) 9 units or less may pay in-lieu-fee ($12.50/total sq. ft.) 10+ single-family units may pay in-lieu fee. ($15.00/total sq. ft. within overall project) # years restricted 55 (Rental/Owner) 20 (Rental/Owner) 55 (Rental/Owner) (Ownership: Term resets at resale) In perpetuity from the date of occupancy Rental: 55 Owner: 30 (Ownership: Term resets at resale) Income Levels Rental: 30% very-low; 20% low; 50% moderate Ownership: 40% low; 60% moderate Rental: Determined case by case. Ownership: Determined case by case Rental: 50% very-low; 50% low Ownership: 50% low; 50% moderate Rental/Ownership multifamily: very-low/low (determined case by case) Ownership single-family: very-low/low/moderate (determined case by case) Rental: 50% very-low; 50% low Ownership multifamily: 20% low; 30% very-low; 50% moderate Ownership single-family detached: Moderate Incentives For increased affordability: -Design modifications -Processing fee deferral -Impact fee deferral For affordability: -Design modifications -Fee waivers -Priority processing -Fee waivers (affordable units) or deferral For on-site construction: -Design modifications -2nd mortgage/subsidy -Priority processing -Fee waiver/deferral For all projects: -Design modifications -Priority processing Exceptions Land dedication Off-site construction In-lieu fees Credit transfers Waiver of requirements In-lieu fees ADUs Land dedication Off-site construction In-lieu fees ADUs (20% credit only) Land dedication Off-site construction In-lieu fees Credit transfers Land dedication Off-site development Rental units in ownership project Waiver of requirements In-lieu fees 8.2.a Packet Pg. 134 Attachment: 1. Inclusionary Zoning Regulations Summary Table by Tri-Valley Jurisdiction (Overview of Page 1 of 2 STAFF REPORT CITY COUNCIL DATE: October 1, 2019 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Report on the City's Communication Efforts Prepared by: Shari Jackman, Management Analyst II EXECUTIVE SUMMARY: Staff will provide an update on communication efforts and engagement, and receive feedback from City Council on other avenues they would like to explore. STAFF RECOMMENDATION: Receive the report and provide direction, if necessary. FINANCIAL IMPACT: None. DESCRIPTION: The City of Dublin continues to focus on increasing communication and engagement efforts to promote City events, programs, services, facilities, economic development, and more. In 2018, the City Council adopted the City Council Two-Year Strategic Plan which included four strategies. Strategy 2 focuses efforts on enhancing the City's engagement efforts to better connect and inform residents of City activities and Public Safety matters. This presentation will provide a brief history of the City's communication advancements over the past 10 years and an overview of current communication and engagement efforts. STRATEGIC PLAN INITIATIVE: Strategy 2: Enhance the City's engagement efforts to better connect and inform residents of City activities and Public Safety matters. 8.3 Packet Pg. 135 Page 2 of 2 NOTICING REQUIREMENTS/PUBLIC OUTREACH: None. ATTACHMENTS: None. 8.3 Packet Pg. 136