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HomeMy WebLinkAboutItem 4.7 - 3324 Carl Zeiss Meditec Inc. Public Art Page 1 of 3 STAFF REPORT CITY COUNCIL DATE: September 1, 2020 TO: Honorable Mayor and City Councilmembers FROM: Linda Smith, City Manager SUBJECT: Public Art Proposal - Zeiss Innovation Campus Prepared by: Shaun Chilkotowsky, Heritage & Cultural Arts Manager EXECUTIVE SUMMARY: The City Council will consider Carl Zeiss Meditec's proposal for Public Art at the new Zeiss Innovation Campus and associated installation and maintenance agreement. STAFF RECOMMENDATION: Approve the artwork and adopt the Resolution Approving a Public Art Installation and Maintenance Agreement with Carl Zeiss Meditec, Inc. for Public Art at the Zeiss Innovation Center. FINANCIAL IMPACT: This is developer-installed artwork. There is no impact to City funds. DESCRIPTION: Carl Zeiss Meditec, Inc. (Zeiss) is developing the Zeiss Innovation Center, a 433,090- square-foot research and development campus comprising two buildings, a parking structure, and associated site, frontage, and landscape improvements on an 11.36-acre parcel. Phase 1 of the Zeiss Innovation Center, which is currently under construction, includes a 208,650-square-foot, three-story, research and development building. This facility will contain labs, offices, warehouse space, and demonstration and showroom space. As part of the Site Development Review approved by the City Council, Zeiss opted to install Public Art onsite versus paying an in-lieu fee. Per the Public Art Master Plan, all private developers are required to present the proposed artwork for review at a Heritage and Cultural Arts Commission meeting. Upon recommendation by the Heritage and Cultural Arts Commission, the developer is required to seek final approval of the proposed artwork by the City Council. Artist Selection Process The Public Art Master Plan encourages private developers to follow an artist selection Page 2 of 3 process consistent with the City’s policies for selection of artists and artwork. Zeiss utilized a similar process to the City’s own “invitational” method, in which artists were invited to submit designs based on past works and demonstrated ability to respond to the project conditions or other non-aesthetic program goals. The final selection of the artist was made at Zeiss Corporate Headquarters in Germany. Sebastopol-based artist Ned Kahn specializes in work inspired by atmospheric physics, geology, astronomy, and fluid motion. His artwork enables viewers to observe and interact with natural processes. A key element is wind, and many of his projects require air currents. His work brings unpredictability and turbulence into a social context and uses scientific and aesthetic strategies to make natural complexity vivid, comprehensible, and beautiful. His intent with this project is to create artwork that relates to the sensor technology work at Zeiss while providing people with a relaxing and ever-changing window into the natural world. He has won numerous awards and worked on many international projects. Recent California projects include Bus Fountain at the Salesforce Transit Center in San Francisco, Air Cube at Stanford Hospital, and Turning Leaves at Kaiser Oakland. Ned is best known in Dublin for Divided Sea located at Emerald Glen Park. Design Proposal In the proposal, the art is located on the edge of the campus, adjacent to Arnold Road. The proposed site (Attachment 3) is designed to feel like an extension of the public sidewalk on Arnold Road and will be visible to passing vehicles. Benches located adjacent to the pedestrian path that wrap around the artwork will encourage pedestrians to relax and observe the movement of the wind through the piece. In addition, this location will be close to trees and potential shade. Public/visitor parking will be available onsite to ensure public accessibility to the piece. The concept (Attachment 4) is a field of responsive air sensors that would appear to float over the surface of the water in the proposed pool. The idea is to install an array of sensors rising to a maximum of 30” above the water, creating swaying metallic grasses. The support structure would be submerged and hidden under water and the moving metal grasses would both reflect on the water surface and capture rippling light bouncing off the water. This Sensor Field would be a register for the moment-by- moment changes in the atmosphere, the water surface, and the ambient light and color from the sky and surrounding environment. The support structure for the artwork would be fabricated entirely out of marine grade stainless steel and would rest on the bottom of the pool. No anchors or penetrations into the pool membrane would be needed, as the entire artwork array would be bolted together to form a structurally linked matrix. This artwork would not require any modifications to the existing plans for the pool. The artwork supports would not interfere with the circulation and filter system for the pool and could easily be removed if maintenance or repair of the pool is needed. Staff Review The preliminary design was reviewed internally by the Parks and Community Services Department. Staff has no concerns with the safety or design of the proposed artwork and recommends the proposal for its ease of access, highly visible location, and artistic Page 3 of 3 qualities. Community Outreach On June 3, 2020, from 5:00 to 6:00 p.m., a virtual workshop was hosted by the artist and developer to show the art proposal, solicit feedback, and answer questions. The virtual workshop was advertised through social media, direct emails, and was promoted by local news outlets. Approximately 30 people attended the hour-long virtual workshop and City staff were in attendance to hear the presentation and document the public feedback. The overall response to the Public Art proposal was positive. On June 11, 2020, the Heritage and Cultural Arts Commission voted 6-1 to recommend the artwork proposal. Installation and Maintenance Agreement As part of the Site Development Review process, a condition of approval is established to ensure the requirements of the Public Art Ordinance are met. Furthermore, on private developments that choose to install Public Art on site, the City and Developer enter into a Public Art Installation and Maintenance Agreement. The purpose of this agreement is to ensure the art is installed as proposed and the Developer is familiar with the maintenance requirements that must be conducted for the life of the art. Often this is ongoing long-term maintenance, as Public Art is intended to be permanent. The agreement between the City of Dublin and the Developer on this project, Zeiss, is included with the Staff Report (Attachment 2). STRATEGIC PLAN INITIATIVE: None. NOTICING REQUIREMENTS/PUBLIC OUTREACH: A courtesy notice was provided to Carl Zeiss Meditec, Inc. ATTACHMENTS: 1. Resolution Approving a Public Art Installation and Maintenance Agreement with Carl Zeiss Meditec, Inc. for Public Art at Zeiss Innovation Center 2. Exhibit A to the Resolution - Carl Zeiss Meditec, Inc. Installation and Maintenance Agreement 3. Zeiss Public Art Location 4. Ned Kahn Concept and Zeiss Public Art Proposal RESOLUTION NO. XX-20 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * APPROVING A PUBLIC ART INSTALLATION AND MAINTENANCE AGREEMENT WITH CARL ZEISS MEDITEC, INC. FOR PUBLIC ART AT ZEISS INNOVATION CENTER WHEREAS, Carl Zeiss Meditec, Inc. (“Developer”) is building and will operate a research and development campus consisting of two buildings, a parking structure, and associated site, frontage, and landscape improvements on an 11.36-acre parcel. This facility will contain labs, offices, warehouse space, and demonstration and showroom space; and WHEREAS, Developer is required under Dublin’s Public Art Ordinance, Municipal Code section 8.58.060(A) to install Council-approved public art with its research and development campus; and WHEREAS, on September 1, 2020, the City Council considered and approved Developer’s proposed Public Art by artist Ned Kahn; and WHEREAS, Developer has entered into an agreement with artist Ned Kahn to complete the approved artwork; and WHEREAS, Developer is installing the proposed artwork as required; and WHEREAS, Dublin’s Public Art Ordinance, Municipal Code section 8.58.070(D) requires that a developer execute an agreement with the City which sets forth the ownership, maintenance responsibilities, and insurance coverage for the public artwork. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does approve the Public Art Installation and Maintenance Agreement with Carl Zeiss Meditec, Inc., attached hereto as Exhibit A, and authorizes the City Manager to execute the agreement, with any minor modifications as needed to carry out the intent of this Resolution. PASSED, APPROVED AND ADOPTED this 1st day of September 2020, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ________________________________________ Mayor ATTEST: _______________________________________ City Clerk Carl Zeiss Public Art Installation & Maintenance Agreement PUBLIC ART INSTALLATION AND MAINTENANCE AGREEMENT FOR CARL ZEISS, MEDITEC INC. This PUBLIC ART INSTALLATION AND MAINTENANCE AGREEMENT (“Agreement”) is dated as of September 1, 2020 (“Effective Date”), and is entered into between the CITY OF DUBLIN, a California municipal corporation (“City”), and Carl Zeiss, Inc. (“Developer”). City and Developer may be referred to individually as a “Party” or collectively as the “Parties.” City and Developer enter into this Agreement with reference to the following recitals of fact (each, a “Recital”): RECITALS A. Developer is the owner of property in the City of Dublin (“City”) generally located on the Northeast corner of Dublin Blvd. & Arnold Road, and known as Zeiss Innovation Center Project, 5300 Central Pkwy (APN 986-0014-010-00) (“Property”). Developer intends to develop the Zeiss Innovation Center, which is currently under construction, includes a 208,650-square- foot, three-story, research, and development building. This facility will contain labs, offices, warehouse space, and demonstration and showroom space on the Property (“Project”). B. On March 06, 2018, the City Council approved the Site Development Review Permit, by adopting Resolution No. 22-18 for the Project. Condition #18 of the Site Development Review Permit (the “Condition”) requires Developer to acquire and install a public art project in accordance with Chapter 8.58 of the City Municipal Code valued at a minimum of $390,000, or 0.5% of the building valuation (exclusive of land), to comply with the Project’s public art compliance report submitted by the Developer and on file with the City, and to, prior to first occupancy, (a) secure completion of the public art project in a manner deemed satisfactory to the City and (b) execute an agreement between the City and Developer that sets forth the ownership, maintenance responsibilities and insurance coverage for the public art project. C. Developer entered into a Public Art Agreement with Ned Kahn, a sole proprietor (“Artist”), on or around April 15th, 2019 (“Artist Agreement”). Under the Artist Agreement, the Artist agreed to design, fabricate and install public art on the Property. A copy of the Artist Agreement is attached hereto and incorporated herein by reference as “Exhibit A.” D. On June 11, 2020, the Heritage and Cultural Arts Commission reviewed the proposed public art project prepared by the Developer (“Public Art”) and recommended approval of the Public Art to the City Council. The Public Art consists of field of responsive air sensors that would appear to float over the surface of the water in the proposed condensate pool. The Public Art will be installed in the locations set forth on “Exhibit B,” which is attached hereto and incorporated herein by reference. E. The Parties desire to enter into this Agreement to memorialize the City’s approval of the Public Art. Further, compliance with this Agreement is intended to fully satisfy the Condition and Developer’s obligation to enter into an agreement setting forth ownership, maintenance responsibilities and insurance coverage for the Public Art. Carl Zeiss Public Art Installation & Maintenance Agreement NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION AND THE PROMISES AND COVENANTS OF CITY AND DEVELOPER SET FORTH IN THIS AGREEMENT, CITY AND DEVELOPER AGREE, AS FOLLOWS: TERMS AND CONDITIONS 1. PUBLIC ART INSTALLATION, OWNERSHIP AND MAINTENANCE 1.1 Installation and City Manager Determination. Developer shall cause the Public Art to be installed on the Property at the locations set forth on Exhibit B. Within five (5) working days of notice of the installation, the City Manager, or his designee, shall determine if the Public Art has been completed in a satisfactory manner, which determination shall not be unreasonably withheld, conditioned or delayed and shall be made if the Public Art is in compliance with Site Development Review Permit Condition and Artist Agreement, and if such determination cannot be made, the City Manager shall provide written notice to the Developer pursuant to Section 2.2 specifying the corrective work needed for compliance within this five (5) day time period. In the event that corrective work is required to bring the Public Art into compliance, Developer will notify the City upon completion of the corrective work pursuant to Section 2.2, and the City Manager will again be permitted five (5) days to inspect the work as provided in this paragraph. If written notice of the City Manager’s approval or corrective work needed is not timely provided to the Developer pursuant to Section 2.2, the Public Art shall be deemed approved and completed to the City Manager’s satisfaction, and certificates of occupancy shall not be withheld for failure to satisfy the Condition. 1.2 Ownership and Developer’s Maintenance. Following the City’s approval or deemed approval, as set forth in Section 1.1 above, Developer shall accept the Public Art from the Artist. Thereafter, Developer shall own the Public Art and shall maintain the Public Art, at its sole cost and expense, in good repair and condition and in accordance with the general maintenance plan prepared by the Artist under the Artist Agreement. Developer will use reasonable efforts to maintain the Public Art in good repair and condition. If the Public Art suffers deterioration due to any cause other than Developer’s failure to maintain the Art, Developer and City shall meet and confer in good faith to determine whether to replace any portion of the Public Art or translate any component into new media, or whether to restore the Public Art. The anticipated life span of the Public Art is a minimum of 25 years from the date of approval or deemed approval by the City, as set forth in Section 1.1 above. After that time, Developer may, in consultation with City, re- evaluate the Public Art 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 Public Art. In the event that the Developer, in consultation with City, determines that the Public Art does not retain its identity as a work of art and Developer wishes to destroy the Public Art, the Developer must replace the Public Art with art of similar value, adjusted for inflation (“Replacement Art”). Any proposed Replacement Art must be approved by the City prior to the destruction of the Public Art. 1.3 City’s Maintenance Option. In the event that Developer fails to maintain the Public Art in accordance with this Agreement, City shall provide written notice of such condition pursuant to Section 2.2. In the event that Developer fails to cure or commence to cure the condition within thirty (30) days following receipt of such notice, the City shall have the right, but not the obligation, to perform all acts necessary to cure such condition (or to pursue such other remedy available to Carl Zeiss Public Art Installation & Maintenance Agreement the City), including without limitation the right to access the Public Art, and to receive from Developer the City’s costs for such action. 1.4 Modifications; Relocation. Developer intends to display the Public Art as originally created by Artist at the locations set forth on Exhibit B. Notwithstanding the foregoing, Developer may make minor modifications to the Public Art and/or relocate the Public Art with the consent of the City, which shall not be unreasonably withheld, conditioned or delayed. 1.5 Visual Barriers. The Parties agree that no structures or visual barriers of any kind that impair or impede the public’s ability to view the Public Art shall be constructed or maintained on or adjacent to the Public Work, nor shall the Parties do anything that shall prevent, impair, or discourage the public’s ability to view the Public Art. 1.6 Insurance. Developer and Artist are required to secure and maintain insurance during the fabrication and installation phases of the Public Art as set forth further in the Artist Agreement. Developer shall provide City with verification of the required insurance under the Artist Agreement. In addition, Developer shall obtain and maintain in effect a combined single limit policy of liability insurance not less than one million dollars ($1,000,000) covering the Public Art placed with insurers with a Bests’ rating of no less than A:VII and shall name the City as an additional insured on such policy. An endorsement must state that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance or self-insurance maintained by the City shall be called upon to contribute to a loss under the coverage. Any failure of Developer to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers. Developer shall notify City, pursuant to Section 2.2, within fourteen (14) days of notification from Developer’s insurer if such coverage is suspended, voided or reduced in coverage or in limits. 1.7 Satisfaction of the Condition. City agrees that compliance with this Agreement shall fully satisfy the Condition. Provided Developer is in substantial compliance with this Agreement and has otherwise fulfilled any non-Public Art-related requirements, the City may not withhold issuance of Project building permits and/or certificates of occupancy, including but not limited to the first certificate of occupancy for the Project, based on the Condition. 2. GENERAL PROVISIONS 2.1 Incorporation of Recitals. The Recitals set forth above are true and correct and incorporated into this Agreement by reference. 2.2 Notices, Demands and Communications Between the Parties. 2.2.1 Delivery. Any and all notices submitted by any Party to another Party pursuant to or as required by this Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, nationally recognized overnight (one business day) courier (i.e., United Parcel Service, Federal Express, etc.) or by registered or certified United States mail, postage prepaid, return receipt requested, to the address of the recipient Party, as designated in this Section. Notices may be sent in the same manner to such other addresses as the Parties may from time to time designate by notice in accordance with this Section. Notice shall be deemed received by the addressee, regardless of whether or when any return receipt is received by the Carl Zeiss Public Art Installation & Maintenance Agreement sender or the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, one business day after delivery to a nationally recognized overnight carrier or two (2) calendar days after it is placed in the United States mail in accordance with this Section 2.2.1. Any attorney representing a Party may give any notice on behalf of such Party. 2.2.2 Addresses. The notice addresses for the Parties, as of the Effective Date, are as follows: To Developer: Carl Zeiss, Inc. 5160 Hacienda Drive Dublin, CA 94568 Attn: Matthias Ismael, PhD Telephone: (925) 216 6005 Email: Matthias.Ismael@Zeiss.com With a Copy To: Turner 300 Frank H. Ogawa Plaza, Oakland, CA 94612 City, State ZIP Attn: Ron Wilcox Telephone: (408) 640 6408 Email: rwilcox@tcco.com With a Copy To: Scott A. Margolin One North Broadway 15th Floor White Plains, New York 10601 Attn: Scott A. Margolin Telephone: (914) 681 7880 Email: Scott.Margolin@Zeiss.com To City: City of Dublin 100 Civic Plaza Dublin, California 94568 Attn: City Manager Telephone: (925)833-6650 Email: City.Manager@Dublin.Ca.Gov With a Copy To: Meyers Nave 555 12th Street, Suite 1500 Oakland, CA 94607 Attn: John D. Bakker, Esq. Telephone: (510) 808-2000 Carl Zeiss Public Art Installation & Maintenance Agreement Email: jbakker@meyersnave.com 2.3 Relationship of Parties. The Parties each intend and agree that City and Developer are independent contracting entities and do not intend by this Agreement to create any partnership, joint venture, or similar business arrangement, relationship or association between them. 2.4 Legal Actions. Either Party may institute legal action, at law or in equity, to enforce or interpret the rights or obligations of the Parties under this Agreement or recover damages. 2.5 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties set forth in this Agreement are cumulative and the exercise by a Party of one or more of such rights or remedies shall not preclude the exercise by such Party, at the same or different times, of any other rights or remedies for the same default or the same rights or remedies for any other default by the other Party or Parties. 2.6 Principles of Interpretation. A word, term or phrase defined in the singular in this Agreement may be used in the plural, and vice versa, all in accordance with ordinary principles of English grammar, which shall govern all language in this Agreement. The words “include” and “including” in this Agreement shall be construed to be followed by the words: “without limitation.” Each collective noun in this Agreement shall be interpreted as if followed by the words “(or any part of it),” except where the context clearly requires otherwise. Every reference to any document, including this Agreement, refers to such document, as modified from time to time (excepting any modification that violates this Agreement), and includes all exhibits, schedules, addenda and riders to such document. The word “or” in this Agreement includes the word “and.” Every reference to a law, statute, regulation, order, form or similar governmental requirement refers to each such requirement as amended, modified, renumbered, superseded or succeeded, from time to time. 2.7 Governing Law. The procedural and substantive laws of California shall govern the interpretation and enforcement of this Agreement, without application of conflicts or choice of laws principles. The Parties acknowledge and agree that this Agreement is entered into, is to be fully performed in and relates to real property located in the County of Alameda, State of California. All legal actions arising from this Agreement shall be filed in the Superior Court of California in and for the County of Alameda or in the United States District Court with jurisdiction in the County. 2.8 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any person or entity other than the Parties and their respective permitted successors and assigns, nor is anything in this Agreement intended to relieve or discharge any obligation of any third person to any Party or give any third person any right of subrogation or action over or against any Party. 2.9 Time Declared to be of the Essence. As to the performance of any obligation under this Agreement of which time is a component, the performance of such obligation within the time specified is of the essence. Carl Zeiss Public Art Installation & Maintenance Agreement 2.10 Legal Costs. In the event that a Party brings an action to enforce this Agreement or otherwise arising out of this Agreement, the substantially prevailing Party in such action shall be entitled to recover from the other Party its Legal Costs (which shall be defined to include all reasonable costs and expenses such Party incurs in any legal proceeding, or other matter for which such Party is entitled to be reimbursed for its Legal Costs, including reasonable attorneys’ fees, court costs and expenses and consultant and expert witness fees and expenses). 2.11 Entire Agreement. This Agreement integrates all of the terms and conditions mentioned in this Agreement or incidental to this Agreement, and supersedes all negotiations or previous agreements between the Parties with respect to all or any portion of the Public Art. 2.12 Waivers and Amendments. All waivers of the provisions of this Agreement and all amendments to this Agreement must be in writing and signed by the appropriate authorities of the Parties. Failure to insist on any one occasion upon strict compliance with any term, covenant, condition, restriction or agreement contained in this Agreement shall not be deemed a waiver of such term, covenant, condition, restriction or agreement, nor shall any waiver or relinquishment of any rights or powers under this Agreement, at any one time or more times, be deemed a waiver or relinquishment of such right or power at any other time or times. 2.13 Assignment. With the City’s written consent, which will not be unreasonably withheld or delayed, Developer may assign the rights, interests and obligations of Developer arising under this Agreement to a homeowners’ association formed for the Project or to a successor in interest or assignee of Developer at which point Developer shall have no further liability hereunder. Developer shall notify the City in writing of the assignment at least thirty (30) calendar days following completion of the assignment. 2.14 Successors and Assigns. All references to the Developer in this Agreement shall be deemed to refer to and include Carl Zeiss Pension Trust Company, LLC, and all successors and assigns thereto. 2.15 Survival of Agreement. All of the provisions of this Agreement shall be applicable to any dispute between the Parties arising from this Agreement, whether prior to or following expiration or termination of this Agreement, until any such dispute is finally and completely resolved between the Parties, either by written settlement, entry of a non-appealable judgment or expiration of all applicable statutory limitations periods and all terms and conditions of this Agreement relating to dispute resolution and limitations on damages or remedies shall survive any expiration or termination of this Agreement. 2.16 Counterparts. This Assignment may be executed in one or more counterparts. All counterparts so executed shall constitute one agreement, binding on all Parties, even though all Parties are not signatory to the same counterpart. The Parties agree to accept signed copies of this Agreement transmitted by electronic facsimile copies as original documents. The Parties acknowledge that copies of this Assignment may be transmitted by a Party over the Internet and printed by the recipient and that the printed document may contain different type styles and type sizes, different pagination and different formatting that the original copy of the Assignment in the possession of the Party sending the Assignment. The Parties agree that any such copies of this Assignment shall be accepted by the Parties as true and correct originals of the Assignment so long Carl Zeiss Public Art Installation & Maintenance Agreement as the actual text of the Assignment remains the same. This Agreement constitutes the entire understanding and Agreement of the Parties regarding the subject matter of this Agreement. SIGNATURES ON FOLLOWING PAGE Carl Zeiss Public Art Installation & Maintenance Agreement IN WITNESS WHEREOF, the Parties have signed this Agreement, as of the Effective Date, by and through the signatures of their respective authorized representative(s) as follow: CITY: CITY OF DUBLIN, a California municipal corporation By: Name: Linda Smith Title: City Manager ATTEST: By: Name: Marsha Moore Title: City Clerk APPROVED AS TO FORM: By: Name: John Bakker Title: City Attorney DEVELOPER: CARL ZEISS INC By: Name: Fotios Pantis Title: President Pro Tem By: Name: Matthias Ismael Title: Real Estate Management Americas Business Services & Infrastructure Carl Zeiss Public Art Installation & Maintenance Agreement EXHIBIT A Artist Agreement dated April 15, 2019 between Carl Zeiss Inc., and Ned Kahn Studios Agreement for Services - Public Art Page 1 of 13 4/15/2019 AGREEMENT FOR SERVICES Public Art Design, Fabrication and Installation for the Graphite Project This Agreement is dated this 15th day of April, 2019, by and between Carl Zeiss, Inc., One Zeiss Drive, Thornwood, NY 10594, on behalf of the Carl Zeiss Pension Trust Properties LLC, 251 Little Falls Drive, Wilmington, Delaware 19808 USA (hereinafter referred to as the "Client"), and Ned Kahn Studios, a sole proprietorship (hereinafter referred to as the "Artist"). RECITALS A.The Client has requested the Artist to design, fabricate, and install public art on the facade of the new building located at 5300 Central Parkway, Dublin, CA 94568. B.The Artist is qualified and experienced to provide such services. NOW, THEREFORE, the Client and the Artist, for the consideration hereinafter set forth, mutually agree as follows: 1.SCOPE OF WORK. The Artist shall develop the final design of the artwork (see Exhibit A) to complete all phases of development (including the acquisition of materials, fabrication) that shall lead to and include the successful installation of the artwork. Artist shall perform all services as detailed in the attached “Schedule of Performance and Compensation Schedule,” attached hereto as Exhibit “B.” The Artist warrants that the Artwork is original and solely the product of Artist’s own creative efforts and does not infringe on the rights of any person or entity. 2.COORDINATION. Artist shall personally participate in said project to coordinate all activities of the project. The Client authorizes Matthias Ismael (Client Authorized Representative) to act on behalf of the Client in accordance with the terms of this Agreement, and to take all actions authorized or required to be taken by the Client. 3.PERMITTING. Client will procure and assume the cost of any permits required to complete the art project. 4.COMPENSATION. A.Client shall pay Artist as compensation for such services and expenses as set forth in the “Schedule of Performance and Compensation Schedule” attached hereto as Exhibit "B” and incorporated herein by reference. Client shall pay Artist the amount identified under the “Payment Amount” column after each corresponding phase of work has been completed to the satisfaction of the Client. Artist shall complete all the services required under this Agreement EXHIBIT A Agreement for Services - Public Art Page 2 of 13 4/15/2019 for a total payment from the Client in an amount not to exceed $390,000. B.Upon completion of each Phase as described on Exhibit “B”, Artist shall submit invoices for work performed. Client shall make payment within thirty (30) days after approval of the invoice by Client. 5.TERM. The term of this Agreement shall be from the date of its execution until the completion of the work contemplated by this Agreement and its final installation unless terminated earlier as provided herein. 6.NOTICES. Any notice (including any demand, request, consent, approval, or communication that any party desires or is required to give to any other party or any other person under this Agreement) shall be in writing and either served personally or sent by prepaid, certified or registered mail, return receipt requested. Any such notice shall be addressed as follows: TO Client: Dr. Matthias Ismael 5160 Hacienda Drive, Dublin, CA 94568 Cell: 925 216 6005 Matthias.Ismael@ZEISS.com TO ARTIST: Ned Kahn Ned Kahn Studios 1899 Mariner Drive Sebastopol, CA, 95472 Any party may change its address by notifying the other parties of the change of address. All notices shall be effective on the date of actual delivery, or the date set forth on the return receipt of a certified or registered mail delivery. 7.AMENDMENT OF SCOPE OF WORK. Client may request an amendment to the Scope of Work within the Agreement by written notification to the Artist. In such event, the compensation and time of performance shall be subject to renegotiation upon written demand of either party to the Agreement. The Artist may request an adjustment to the contract price or time for performance only if the Artist establishes to the satisfaction of the Client’s Authorized Representative that there was an unforeseen and unforeseeable condition that was outside of the responsibility or control of the Artist. Failure of the Artist to secure Client's written authorization for extra or changed work shall constitute a waiver of any and all right to adjustment in the contract price or time due. 8.CLIENT'S RIGHT TO TERMINATE/SUSPEND CONTRACT. At any time and for any or no reason, Client shall have the right to terminate this Agreement, and pay the Artist (as full payment for all EXHIBIT A Agreement for Services - Public Art Page 3 of 13 4/15/2019 services satisfactorily rendered and expenses incurred hereunder) a proportionate amount of the total fees specified in this Agreement equal to the ratio that the services satisfactorily rendered by the Artist at the time of such termination bears to the total services otherwise required to be performed under the Agreement. Notwithstanding the above, Artist shall not be relieved from liability to Client for damages sustained by virtue of any breach of this Agreement by Artist, whether or not the Agreement was terminated for convenience or cause, and Client may withhold payments not yet made to Artist for the purpose of setoff until such time as the exact amount of damages due Client from Artist is determined. If Client terminates without cause, Client shall have no right of use to any of Artist’s work, e.g. studies, preliminary drawings, computations, specifications, etc., without further agreement with Artist. 9.CORRECTION OF WORK. The performance of services or acceptance of information furnished by Artist shall not relieve the Artist from obligation to correct any defective, inaccurate or incomplete work for which Artist is responsible under this Agreement that is subsequently discovered, and all such work shall be remedied by the Artist on demand without cost to the Client. 10.DELAYS AND EXTENSIONS. Time is of the essence concerning performance of this Agreement; however, the Artist will be granted time extensions for delays beyond the Artist's control. Time extensions will be equal to the length of the delay or as otherwise agreed upon between the Artist and the Client. 11.INSURANCE. Artist shall take out and maintain, throughout the period of this Agreement, the following policies of insurance: A.Comprehensive or Commercial General Liability Insurance in an amount of $1,000,000.00 per occurrence. Said policy shall contain, or be endorsed with, the following provisions: (1)The Client, its officers, employees and agents, are covered as insureds for liability arising out of the operations performed by or on behalf of Artist. (2)The policy shall not be canceled or materially reduced in coverage without thirty (30) days prior written notice. 12.STANDARD OF CARE. The Client relies upon the professional ability of Artist and representations regarding the type of work to be performed as a material inducement to entering into this Agreement. Artist agrees to use reasonable care and diligence in rendering services under this Agreement. Artist is responsible for the work of all employees, subcontractors, and agents, and the negligence of one of them, if not adequately remedied by Artist, shall be conclusively deemed to be the negligence of Artist. Artist agrees that the acceptance of his work by Client shall not operate as a waiver or release of said obligation of Artist. The absence, omission, or failure to include in this Agreement, items which are normally considered to be a part of generally accepted professional procedure or which involve specialized professional judgment appropriate to the type of work to be performed EXHIBIT A Agreement for Services - Public Art Page 4 of 13 4/15/2019 under this Agreement shall not be used as a basis for submission of inadequate work or incomplete performance. 13.COVENANT AGAINST CONTINGENT FEES. The Artist warrants that he has not employed or retained any company or person, other than a bona fide employee working for the Artist, to solicit or secure this Agreement, and that he has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or making this Agreement. For breach or violation of this warranty, the Client shall have the right to annul this Agreement without liability or, in its discretion to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. 14.CONFLICT OF INTEREST. Artist covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of its services hereunder. Artist further covenants that in the performance of this Agreement, no person having any such interest shall be employed. 15.DEFAULT. If Artist fails to perform any obligation under this Agreement, within the time and in the manner herein provided or otherwise violates any term of this Agreement, Client may terminate this Agreement by giving Artist written notice of such termination, stating the reason for such termination. In such event, Artist shall be entitled to receive (as full payment for all services satisfactorily rendered and expenses incurred hereunder) a proportionate amount of the total fees specified in this Agreement equal to the ratio that the services satisfactorily rendered by the Artist bear to the total services otherwise required to be performed under the Agreement. Notwithstanding the above, Artist shall not be relieved from liability to Client for damages sustained by virtue of any breach of this Agreement by Artist, whether or not the Agreement was terminated for convenience or cause, and Client may withhold payments not yet made to Artist for the purpose of setoff until such time as the exact amount of damages due Client from Artist is determined. 16. THIRD PARTY BENEFICIARIES. Nothing contained in this Agreement shall be construed to create and the parties do not intend to create any rights in third parties. 17.INDEPENDENT CONTRACTOR. The parties intend that Artist, in performing the services specified herein, shall act as an independent contractor and shall have control of the work and the manner in which it is performed. Artist is not to be considered an agent or employee of the Client and is not entitled to participate in any pension plan, insurance, bonus or similar benefits Client provides its employees. In the event Client exercises its right to terminate this Agreement, Artist expressly agrees that he/she shall have no recourse or right of appeal under rules, regulations, ordinances or laws applicable to employees. 18.EMPLOYMENT PRACTICES . Artist shall not discriminate in its performance under the Agreement either directly or indirectly on the grounds of race, color, religion, sex, age, national origin, or other EXHIBIT A Agreement for Services - Public Art Page 5 of 13 4/15/2019 prohibited grounds in its employment practices, and shall take affirmative steps to ensure that applicants are employed and employees are treated during employment without regard to race, color, religion, sex, age, national origin, or other prohibited grounds. 19.COMPLIANCE WITH LAW. A.Artist shall comply with all applicable federal, state and local laws, rules and regulations affecting the Artist and his/her work hereunder and shall ensure that all subcontractors do the same. Artist represents and warrants to Client that Artist has and will keep in effect during the term of this Agreement all licenses, qualifications and approvals of whatsoever nature which are legally required for Artist to practice Artist's profession and to do the work hereunder. B.Artist agrees to abide by the requirements of the Immigration and Control Reform Act pertaining to assuring that all newly-hired employees of Artist performing any services under this Agreement have a legal right to work in the United States of America, that all required documentation of such right to work is inspected, and that INS Form 1-9 (as it may be amended from time to time) is completed and on file for each employee. Artist shall make the required documentation available upon request to Client for inspection. 20.WORK PRODUCT. A.Upon the Client’s acceptance of the work required by this Agreement as complete the Client shall have no obligation to display or maintain any physical works or art or projects constructed using Artist’s conceptual design for any particular time and within the scope of its legal authority, and considering the agreement between Artist and Client, the Client reserves the right to remove, relocate or destroy the physical works or art or projects constructed using Artist’s conceptual design at any time after the completion of the project. B.As to the Client and its agents, employees and contractors, the Artist hereby waives any and all rights he may have to prevent or cause the prevention of the removal, relocation or destruction of the project once constructed; or to seek other relief in connection with any such removal or destruction, pursuant to Title 17, Section 106A of the United States Code, or pursuant to Section 987 of the California Civil Code as such sections now exist or may hereafter be amended. C.Within the scope of its legal authority, Client shall have the right to make photographs, drawings, or other two- dimensional reproductions of the conceptual design without prior consent of the Artist if used solely for non- commercial purposes, advertising, descriptive brochures, and similar purposes. 21.RIGHT TO ADEQUATE ASSURANCE OF PERFORMANCE. Each party to this Agreement undertakes the obligation that the other’s expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arises with respect to the performance of either party, the other EXHIBIT A Agreement for Services - Public Art Page 6 of 13 4/15/2019 may in writing demand adequate assurance of due performance, and until it receives such assurance, may, if reasonable, suspend any performance for which the agreed return has not been received. “Reasonable” includes not only the conduct of a party with respect to other agreements with parties to this Agreement or others. After receipt of a justified demand, failure to provide within a reasonable time, but not exceed fifteen (15) days, such assurance of due performance as is adequate under the circumstances of the particular case is a repudiation of this Agreement. Acceptance of any improper delivery, service or payment does not prejudice the aggrieved party’s right to demand adequate assurance of future performance. 22. CONFIDENTIALITY. Artist shall treat all information obtained from Client in the performance of this Agreement as confidential and proprietary to Client. Artist shall treat all records and work product prepared or maintained by Artist in the performance of this Agreement as confidential. Artist agrees that it will not use any information obtained as a consequence of the performance of work for any purpose other than fulfillment of Artist’s scope of work. Artist will not disclose any information prepared for Client, or obtained from Client or obtained as a consequence of the performance of work, to any person other than Client, or its own employees, agents or subcontractors, who have a need for the information for the performance of work under this Agreement unless such disclosure is specifically authorized in writing by the Client. Artist shall advise Client of any request for disclosure of information or of any actual or potential disclosure of information. Artist’s obligations under this paragraph shall survive the termination of this Agreement. 23.ACCIDENT REPORT. If any damage (including death, personal injury, or property damage) occurs in connection with the performance of this Agreement, Artist shall promptly submit to the Client a written notice of such accident with the following information: A.Name and address of the injured or deceased person(s); B.Name and address of any witness; C.Name and address of Artist’s insurance company; and D.A detailed description of the damage and whether any Client property was involved. 24.ELECTRONIC COMMUNICATIONS. During the course of this Agreement, communications may occur through sending, receiving or exchanging electronic versions of documents and e-mails using commercially available computer software and Internet access. Artist and the Client acknowledge that the Internet is occasionally victimized by the creation and dissemination of so- called viruses or similar destructive electronic programs. Artist and the Client view the issues raised by these viruses seriously and have invested in document and e-mail scanning software that identify and reject files containing known viruses. Artist agrees to update its system with the software vendor’s most current releases at regular intervals. Because of the virus scanning software, the respective computer systems of the parties may occasionally reject a communication. The parties acknowledge that this occurrence is to be expected as part of the ordinary course of business. Because the virus protection industry is generally one or two steps behind new viruses, neither party can guarantee that its respective communications and documents will be virus free. Occasionally, a EXHIBIT A Agreement for Services - Public Art Page 7 of 13 4/15/2019 virus will escape and go undetected as it is passed from system to system. Although each party will use all reasonable efforts to assure that its communications are viruses free, neither party warrants that its documents will be virus free. Each party agrees to advise the other if it discovers a virus in its respective system that may have been communicated to the other party. 25.ELECTRONIC OR MAGNETIC DATA. If the Scope of Work requires that Artist provide documents in electronic or magnetic formats, they shall be provided in a manipulative form. Client recognizes that electronic or magnetic data and its transmission may be damaged, may develop inaccuracies during use, and may contain viruses or other destructive programs, and that software and hardware operating systems may become obsolete. Artist shall not be liable for any loss of use, profit, or any other damages arising from Client’s reuse, misuse, modification, or misinterpretation of the data submitted in electronic or magnetic form. Nothing contained in this paragraph shall affect the indemnification or standard of care required hereunder for Artist with respect to Artist’s work and work products delivered in hard copy. 26.GENERAL PROVISIONS. A.Headings. The heading titles for each paragraph of this Agreement are included only as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the interpretation of the Agreement. B.Severability. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the parties’ intent under this Agreement. C.Governing Law, Jurisdiction, and Venue. The interpretation, validity, and enforcement of this Agreement shall be governed and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of San Francisco. D.Attorney’s Fees. In the event any legal action is commenced to enforce or interpret this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred, whether or not such action proceeds to judgment. E.Artist will indemnify, hold harmless, and defend Client (its managers, officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, "Indemnified Party") against all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, that are incurred by Indemnified Party/awarded against Indemnified Party in a judgment, administrative proceeding, (collectively, "Losses"), arising out of any third-party claim alleging: EXHIBIT A Agreement for Services - Public Art Page 8 of 13 4/15/2019 (a)material breach or non-fulfillment of any material representation, warranty, or covenant in this Agreement, (b) any negligent or more culpable act or omission of Artist [or its Personnel] in connection with the performance of its obligations under this Agreement; or (c) any bodily injury, death of any person, or damage to real or tangible personal property caused by the acts or omissions of the Artist (including injury to Artist’s personnel) or (d) the failure of Artist to materially comply with any applicable federal, state, or local laws, regulations, or codes in the performance of its obligations under this Agreement. Notwithstanding anything to the contrary in this Agreement, this Section does not apply to any claim (whether direct or indirect) for which a sole and exclusive remedy is provided under another section of this Agreement. F.Assignment and Delegation. This Agreement, and any portion thereof, shall not be assigned or transferred, nor shall any of the Artist’s duties be delegated without the written consent of Client. Any attempt to assign or delegate this Agreement without the written consent of the Client shall be void and of no force or effect. Consent by the Client to one assignment shall not be deemed to be consent to any subsequent assignment. G.Modifications. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both parties. H.Waivers. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement. I.Time. Time is of the essence in carrying out the duties hereunder. J.Entire Agreement. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the parties concerning the services described herein. This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all. K.Each Party’s Role in Drafting the Agreement. Each party to this Agreement has had an opportunity to review the Agreement, confer with legal counsel regarding the meaning of the Agreement, and negotiate revisions to the Agreement. Accordingly, neither party shall rely upon Civil Code Section 1654 in order to interpret any uncertainty in the meaning of the Agreement. L.Signatures. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the Artist and the Client. EXHIBIT A Agreement for Services - Public Art Page 9 of 13 4/15/2019 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. Carl Zeiss, Inc.: ARTIST: Signed: ____________________________ Signed: ____________________________ Matthias Ismael Ned Kahn, Owner Carl Zeiss, Inc. Ned Kahn Studios 5160 Hacienda Drive 1899 Mariner Drive Dublin, CA 94568 Sebastopol, CA 95472 (925) 216-6005 (707) 823-1760 Matthias.Ismael@Zeiss.com Copy to: Carl Zeiss, Inc., One Zeiss Drive Thornwood, NY 10594 Attn.: Office of the President EXHIBIT A Agreement for Services - Public Art Page 10 of 13 4/15/2019 EXHIBIT A Project Description Project Description: Sensor Field by Ned Kahn The concept of Sensor Field by Ned Kahn for Zeiss, Dublin is a field of responsive air sensors that would appear to float over the surface of the water in the proposed condensate pool. The idea is to install an array of sensors rising to a maximum of 30" above the water, creating swaying metallic grasses. The support structure would be submerged and hidden under water and the moving metal grasses would both reflect on the water surface and capture rippling light bouncing off the water. The idea is that the Sensor Field would be a register for the moment-by-moment changes in the atmosphere, the water surface and the ambient light and color from the sky and surrounding environment. The support structure for the artwork would be fabricated entirely out of marine grade stainless steel and would simply rest on the bottom of the pool. No anchors or penetrations into the pool membrane would be needed, as the entire artwork array would be bolted together to form a structurally linked matrix. The geometry of the artwork array would follow the polar grid that the designers used as an organizing overlay for the landscape and architecture. This artwork would not require any modifications to the existing plans for the pool. The artwork supports would not interfere with the circulation and filter system for the pool and could easily be removed if maintenance or repair of the pool is ever needed. EXHIBIT A Agreement for Services - Public Art Page 11 of 13 4/15/2019 Artist’s Responsibilities: The artist, Ned Kahn, will complete the following tasks: Attend a site visit, meet with client and the design team, walk-through the existing structure Review architectural drawings and renderings Review the structural and functional conditions of the project Review the code requirements for natural ventilation Produce drawings, renderings, videos, budget, project narrative of initial concepts Meet with project team(GENSLER designer, BIONIC landscape design, TURNER contractor) Meet with art conservator or provide art conservator report on materials to be used Present a proposal consisting of drawings, renderings, video rendering, budget, project narrative Revise the proposal based on feedback from the client and design team Fabricate a mock-up of a sample of the proposed artwork Document the sample with photos and videos Assist client and design team with approval process for artwork Design, engineer, fabricate and install the support structure to hold the artwork to the building Procure materials and parts for full-scale artwork Fabricate and assemble artwork Attend a meeting on-site to coordinate installation and verify that support structure is ready Crate and ship the artwork components to the job site Unload and store the artwork components at the job site Document the final installation with photographs and video Provide final statement and drawings Create a maintenance manual for the artwork Comply with TUNRER (contractor) site logistics and safety plans Attend meeting with the City of Dublin to review logistics and “overhead work” All install work must be at prevailing wage rate Artist shall procure and maintain during the life the Agreement the following insurance: •Statutory workmen’s compensation insurance coverage •Comprehensive general liability (“CGL”) insurance coverage with limits of no less than $2M per occurrence, $2M in the aggregate. Artist shall require all hired professionals to procure and maintain professional errors and omissions liability insurance coverage, with limits of at least $2M per claim, $4M in the aggregate (principal architects, engineers, or geotechnical engineers) Client and Design Team Responsibilities: The client and design team will complete the following tasks: Review artist’s proposal and provide feedback. EXHIBIT A Agreement for Services - Public Art Page 12 of 13 4/15/2019 Obtain necessary approvals for artwork from local authorities Meet with artist’s installer to coordinate delivery and installation of artwork components Provide a place to store the artist’s materials during installation Process invoices net 30 days from the end of the month. EXHIBIT A Agreement for Services - Public Art Page 13 of 13 4/15/2019 EXHIBIT B Schedule of Performance & Compensation Schedule The artist will complete the tasks described under Artist’s Responsibilities in this letter for a total fee of $390,000. Payment Schedule: 1.Due upon acceptance of proposal (10%)$39,000 2.Due upon acceptance of samples and shop drawings (10%)$39,000 3.Due upon notice to proceed with procurement (10%)$39,000 4.Due upon completion of 50% of fabrication (10%)$39,000 5.Due upon completion of 75% of fabrication (10%)$39,000 6.Due upon completion of 100% of fabrication (10%)$39,000 7.Due upon notice to proceed with installation (10%)$39,000 8.Due upon completion of installation (10%)$39,000 9.Due upon completion of fine-tuning and punch-list (10%)$39,000 10.Due upon final acceptance of artwork (10%)$39,000 Schedule: 1.acceptance of proposal April 2018 2.acceptance of samples and shop drawings May 2018 3.notice to proceed with procurement June 2018 4.completion of 50% of fabrication Fall 2020 5.completion of 75% of fabrication Fall 2020 6.completion of 100% of fabrication Fall 2020 7.notice to proceed with installation Fall 2020 8.completion of installation Winter 2021 9.completion of fine-tuning and punch-list Winter 2021 10.final acceptance of artwork Winter 2021 EXHIBIT A Carl Zeiss Public Art Installation & Maintenance Agreement This Page Intentionally Left Blank Carl Zeiss Public Art Installation & Maintenance Agreement EXHIBIT B Zeiss Public Art Location • 0 <i 0 a::: 0 _J 0 z a::: <i • , • • I • I CENTRAL PARKWAY OVAT DUBLIN BOULEVARD SITE PLAN • I • LU I u <i • _J I a.. • :,.:: I a::: • <i I a.. • I Sensor Field Proposal for Zeiss - Ned Kahn