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HomeMy WebLinkAboutItem 4.03 FreewayArtPughGalvezCITY CLERK FILE # 600-30 AGENDA STATEMENT CITY COUNCIL MEETING DATE: July 3, 2001 SUBJECT: Freeway Underpass Art Project- Artist Team Agreement Report Prepared by Bonnie Leonard, Recreation Supervisor ATTACHMENTS: 1. Agreement RECOMMENDATION: FINANCIAL STATEMENT: 1. Approve Agreement 2. Authorize Mayor to Execute Agreement The estimated cost for artwork is $250,000. The cost of resurfacing ofthe underpass walls in preparation for the creation of the mural will be negotiated at a later date as the extent of the resurfacing is contingent upon Caltrans removal of an anti-graffiti coating. $20,000 is available in the project budget for this work. DESCRIPTION: In 2000-2001 the City Council identified the funding of a Freeway Underpass Art Project as a high priority goal. The project was referred to the Heritage and Cultural Arts Commission to determine the scope of project options and to prov!de input for the budgeting process. At the April 13, 2000 meeting, the Heritage and Cultural Arts Commission addressed the issue and recommended to the Council that the project encompass both sides of and both approaches to the underpasses at Dublin Boulevard and Amador Valley Boulevard and 1-680. The City Council conceptually approved the Commission's proposal on May 2, 2000. The Freeway Art Selection Committee and Heritage and Cultural Arts Commission recommended the Artist Team of John Pugh, Daniel Galvez and John Wehrle to complete the artwork for both underpasses. The recommendation was based upon the conceptual designs for the project presented by the artists, the artists' approach to the project and the artists' work on similar projects. All three artists are well-known muralists and bring extensive experience and expertise to the project. On March 20, 2001, the City Council approved the Artist Team and basic conceptual design for the Freeway Underpass Art Project. Staff has negotiated an agreement with the Artist Team of John Pugh, Daniel Galvez and John Wehrle. Attachment 1 is the Agreement that has been prepaJ:ed by the City Attorney and approved by the artists for the Freeway Underpass Art Project. Exhibit A of the Agreement contains a detailed scope of work for the project. Exhibit B of the Agreement outlines the payment schedule and fee for services. The total fee is $250,000. It is the recommendation of Staff that the City Council approve the Agreement with the Artist Team and authorize the Mayor to execute the Agreement. COPIES TO: G:XHrtg Cult Art CommXfreeway art\73artagree-freeway. doc John Pugh Daniel Galvez John Wehrle Lynne Baer Heritage and Cultural Arts Commission ITEM NO. AGREEMENT BETWEEN THE CITY OF DUBLIN AND DANIEL GALVEZ, JOHN PUGH AND JOHN WEHRLE RELATING TO THE PROVISION OF ARTISTIC SERVICES FOR A PUBLIC ART PROJECT This Agreement is made by and between the City of Dublin, a political subdivision of the State of California (hereafter "City"), and Daniel Galvez, John Pugh and John Wehrle (hereafter "Artist Team") this day of ,2001. RECITALS WHEREAS, the City requires the services of Artist Team to perform artistic services described in the Agreement for a public art project; and WHEREAS, the City is authorized by Section 2.36.050 of the Dublin Municipal Code to contract for the specialized services of the advisor contemplated by this Agreement; and WHEREAS, Artist Team 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 March 20, 2001, approved the Artist Team and the basic Conceptual design for the Freeway Underpass Art Project (hereafter called the "Project"), and WHEREAS, because the P~oject will be installed within right-of-way owned by the California Department of Transportation (hereafter Caltrans), some aspects of the Project are subject to Caltrans control. NOW, THEREFORE, in consideration of the mutual promises contained herein, the 'parties hereto agree as follows: AGREEMENT ARTICLE 1. SCOPE OF WORK 1.1. For services rendered herein, City shall pay Artist Team a sum not to exceed $250,000 for work performed during the period beginning July 3, 2001 through December 31,2002. Artist Team shall furnish services as described in Exhibit A of this Agreement. Terms and conditions for payment are attached in Exhibit B of this Agreement. 1.2. The City shall be responsible for providing the Artist Team, without cost, copies of designs, drawings, reports, and other relevant data regarding the Project site needed by the Artist Team to design and execute the Project. Agreement for Artistic Services ,2001 Page 1 of 14 Artist Team shall design, organize and prepare the four interior walls, columns, entry walls and portions of the overhead span as appropriate for integrating artwork into unified design of the Freeway Underpasses at 1-680 at Dublin Boulevard and Amador Valley Boulevard. Artist Team shall conduct community workshops and incorporate results in Project design. 1.3. The Artist Team shall begin work after the execution of this Agreement. ARTICLE 2. CHANGES IN SCOPE AND ADDITIONAL WORK 2.1. The Artist Team 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, and support requirements, texture, or location of the site or the Project. A significant change is any change which affects the installation, scheduling, site preparation, or maintenance of the Project, or the concept of the Project as represented in the original approved design. 2.2. The Artist Team shall be obligated to perform the services called for in Exhibit A. The Artist Team and the City agree that the Artist Team shall retain artistic control of his/her services in the performance of this Agreement, subject only to the limitations imposed in Exhibit A. 2.3. Not withstanding the provisions of Section 2.2 above, the City may, at any time, request the Artist Team in writing to revise portions of the services that they have previously completed in a satisfactory manner; delete portions of the Scope of the Work that the Artist Team has not yet performed; perform additional work beyond the Scope of Work to be provided in Exhibit A; or 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 Team may, but shall not be obligated to, agree to any such request. The City may be required to request changes to satisfactorily completed portions of the Project in response to safety concerns raised by Caltrans. If the Artist Team does not agree to such changes, the City may be required to remove the Project pursuant to Section 6.4 of this Agreement. 2.4. In the event the request for change is agreed to by the Artist Team, 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. 2.5. In the event that the Artist Team does not agree to the request, the City shall be entitled to terminate the Agreement for cause pursuant to Article 17 herein. 2.6. No services for which additional compensation will be charged shall be provided by the Artist Team without the prior written authorization by the City. Agreement for Artistic Services ,2001 Page 2 of 14 ARTICLE 3. RESPONSIBILITY OF THE ARTIST TEAM 3.1. The Artist Team agrees that an essential .element of this Agreement is the skill and creativity of the Artist Team. The Artist Team shall not assign the creative or artistic portions of the Project to another party for the production of the Project 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. 3.2. The Artist Team shall be responsible for providing the services described in Exhibit A, including but not limited to the quality and timely completion of the services. The Artist Team shall be responsible for designing the Project so that it can be constructed without exceeding the approved overall budget for the project. The Artist Team shall, without additional compensation, correct or revise any errors, omissions, or other deficiencies in his/her portion of the Project. 3.3. In the event the services of the Artist Team are integrated into, combined, or otherwise coordinated with services by third parties not within the control of the Artist Team, the Artist Team shall not be responsible for such third party services. If any part of the Artist Team's Project depends for proper execution or results upon the work of the City, or a third party responsible to the City, the Artist Team, prior to proceeding with the Project, promptly report to the City any apparent discrepancies or other defects in such other work which renders it unsuitable for proper execution and results by the Artist Team. The Artist Team shall not be responsible for any liability or failure to fulfill their obligations because of such discrepancies or defects. Failure of the Artist Team to report a discrepancy or defect shall constitute an acceptance of the City's or third party's work as fit and proper to receive Artist Team's Project. Any costs caused by defective or ill-timed work shall be borne by the party responsible therefore. Nothing in this section shall limit the responsibility of the Artist Team to take all reasonable steps to coordinate his/her Work with the work of the City or of a third party on the Project site. 3.4. When the Artist Team is involved in the execution, fabrication, transportation, inspection, and/or installation of the Project, the following provisions shall apply: a. The Artist Team shall, if and when working on City property, supervise such clean-up as may be reasonably requested by the City. At the close out of the Artist Team's work on the Project, the Artist Team shall remove their equipment, excess materials, etc., promptly and as requested by City. b. The City and :any third party contractor performing work on the Project site shall notify the Artist Team of their operation, construction, and maintenance schedules in and around the area where the Artist Team's work on the Project is to be performed. The Artist Team shall perform their services in a manner and time so as not to cause interference with any of the operations, construction, or maintenance of the City or third Agreement for Artistic Services Page 3 of 14 ,2001 party contractor. In the event of a conflict between the schedules of the contractor and/or the City and the Artist Team, the conflict will be resolved by the City. If the resolution of the conflict results in a delay of the performance of the Artist Team, the Artist Team shall have the right to renegotiate this Agreement to compensate them for any additional costs or expenses caused by the delay. If such delay prevents Artist Team from complying with the schedule in Exhibit A, Artist Team shall not be considered to have breached this Agreement, and Artist Team and City shall agree to amend the schedule in writing. c. The Artist Team shall complete the fabrication and installation of the Project in substantial conformity with the attached Exhibit A, Scope of Work. 3.5. The risk of loss or damage to the Project shall be borne by the Artist Team until final acceptance by City, and the Artist Team shall take such measures as are necessary to protect the Project from loss or damage until final acceptance by City, except that the risk of loss or damage shall be borne by the City prior to final acceptance during such period of time as the partially or wholly completed Project is in the custody, control, or supervision of the City or its agents for the purposes of transporting, storing, installing, or performing any other ancillary services to the Project. 3.6. In the event that one or more artist(s) opts to terminate his contractual obligation to the Freeway Underpass Art Project, the remaining artist(s) in the Artist Team are obligated to execute the project under the existing timeline, maintaining the artistic integrity and design as approved by City. 3.7. The City shall arrange for and provide any electricity necessary for the installation of the Project, as required by Caltrans. Additionally, City shall pay for and obtain from Caltrans an encroachment permit and any necessary inspections of the Project. 3.8. The Artist Team shall familiarize themselves with and follow.all relevant Caltrans safety rules and regulations, including traffic control. ARTICLE 4. WARRANTIES/STANDARDS 4.1. The Artist Team warrants that: (a) the design of the Project being commissioned is the original product of their own creative efforts; (b) unless otherwise stipulated, the work is original, that iris an edition of one (1), and that the Artist Team shall not sell or reproduce the Project, or allow others to do so, without the prior written consent of the City. 4.2. The Artist Team shall guarantee the Project 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 Team shall deliver the Project to the City free and Agreement for Artistic Services Page 4 of 14 ,2001 clear of any liens from any source .whatever. The foregoing guarantees shall apply only to the work on the Project that is entirely that of the Artist Team or persons responsible to the Artist Team, as installed, and shall not apply to materials or workmanship of projects in which the Project of the Artist Team is integrated or combined, or to materials purchased, acquired, or installed by a person or entity not responsible to the Artist Team. 4.3. The Artist Team 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 Project described in this Agreement. Artist Team 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 Team shall, immediately upon receiving notice from City of such desire of City, cause the removal of such person or persons, unless in the Artist Team's sole opinion, the skill or creativity of such person or persons is essential to the creation of the Project. ARTICLE 5. COMPENSATION 5.1. The Artist Team shall be paid for services satisfactorily rendered pursuant to this Agreement in accordance with the terms herein, Exhibits A andB, and subsequent adjustments, changes, or additions as specifically provided for in this Agreement. Such payment shall be full compensation for work performed and services rendered, for all supervision, labor, supplies, materials, equipment, or use thereof, for taxes, and for all other necessary incidentals including transportation and storage of Work. 5.2. The amount and schedule of payments to the Artist Team are contained in the attached Exhibit B, Compensation and Schedule of Payments. Payments under this Agreement shall not exceed a maximum amount of $250,000, subject only to adjustments, changes, or additions as specifically provided for in this Agreement (hereafter "Total Commission"). 5.3. In the event the Artist Team incurs costs in excess of the Total Price, the Artist Team shall pay such excess from their own funds, the City shall not be required to pay any part of such excess, and the Artist Team shall not have claim against the City on account thereof. 5.4. The Artist Team shall submit invoices to the City according to the schedule provided for in Exhibit B. Such invoices shall be in the form requested by the City. 5.5. In the event that the City determines that work on .the Project for which it has been invoiced does not meet the'contract specifications, and that it intends to withhold payment, the City shall provide detailed written notice to the Artist Team within fifteen (15) days of receipt of invoice, specifying the failure of performance for which the City intends to withhold payment. The Artist Team shall thereafter meet contract Agreement for Artistic Services Page 5 of 14 ,2001 standards to the satisfaction of the City or advise the City that they dispute the City's determination that the specifications have not been met. 5.6. The City shall pay all invoices that meet contract specifications within thirty. (30) days of receipt of invoice. 5.7. No payment to the Artist Team for any work performed or services rendered shall constitute a waiver or release by the City of any claims, rights or remedies it may have against the Artist Team under this Agreement or by law, nor shall such payment constitute a waiver, remission, or discharge by the City of any failure or fault of the Artist Team to satisfactorily perform the work as required under this Agreement. 5.8. The services to be required of the Artist Team under this Agreement shall be completed in accordance with the schedule for completion of the Project, as provided for in Exhibit A, provided that such time limits may be extended or otherwise modified by written agreement between the Artist Team and the City. 5.9. If, when the Artist Team completes fabrication or procurement of the Project in accordance with the approved schedule and notifies the City that the Project is ready for completion, the Artist Team is delayed from completing the Projectwithin the time specified in Exhibit A as a result of the construction of the site for the Project not being sufficiently complete reasonably to permit installation of the Project therein, or if the City otherwise does not make the site available to the Artist Team in accordance with the approved schedule, the City shall promptly reimburse the Artist Team for reasonable transportation and storage costs incurred for the period between the time provided in Exhibit A for completion and the date upon which the site is made available to the Artist Team for completion of the Project. 5.10. The Artist Team shall bear any transportation and storage costs resulting from the completion of the Project prior to the time provided in the schedule for installation of the Project. 5.11. The City shall always grant a reasonable extension of time to the Artist Team in the event that there is a delay on the part of the City in performing its obligations under this Agreement or in completing the underlying capital project, or if conditions beyond the Artist Team's control render timely performance of the Artist Team's service impossible or unexpectedly burdensome. Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control will not be considered a breach of this Agreement, as long as such obligations shall be suspended only for the duration of the conditions causing the delay. 5.12. For delays in the completion of the Project beyond the schedule provided for under this Agreement caused by factors reasonably under the Artist Team's control, the City agrees to accept fifty dollars ($50.00) per day as liquidated damages for such delay. Agreement for Artistic Services ,2001 Page 6 of 14 ARTICLE 6. ARTIST TEAM'S RIGHTS 6.1. The City shall, at its expense, prepare and install at appropriate locations, after consultation with the Artist Team, a plaque or sign identifying the Artist Team, the title of the Project, and the year of completion, subject to approval by Caltrans. The City shall also reasonably maintain such notice in good repair against damages due to normal wear and tear over time, vandalism, and the elements. 6.2. The City recognizes that maintenance of the Project on a regular basis is essential to the integrity of the Project. The City shall reasonably assure that the Project is properly maintained and protected, taking into account the recommendations of the Artist Team as stated in the maintenance program provided by the Artist Team. 6.3. The City agrees that it shall not intentionally damage, alter, modify, or change the Project of the Artist Team without first conferring with the Artist Team and obtaining the prior.written approval of the Artist Team to the proposed modification, or change. 6.4. Notwithstanding the Artist Team's refusal to provide (or the City's failure for any reason otherwise to obtain) the Artist Team's written approval provided for in Section 6.3 above, the City, in its sole discretion, shall have the right to remove any. work of art providing the following terms and conditions are met: a. The removal proposal shall first be submitted to and considered by the City Council. b. The City Council shall have the non-delegable duty to decide that a work of art shall be removed. The decision to remove shall not be made by the City Council until it has reviewed the removal proposal. c. In the event that the City Council decides to remove the Project, the Artist Team shall have the first right of refusal to purchase the Project, if it stands alone and is not integrated into a larger artwork, building, or structure and can be removed without expense to the City. The Artist Team shall also have the right to have their name removed from the Project, as well as from the plaque installed pursuant to Section 6.1. 6.5. The City shall have the right to determine, after consultation with a professional conservator, when and if repairs and restorations to the Project will-be made. During the Artist's lifetime, the Artist Team shall have the right to approve all major repairs and restorations, which approval the Artist Team Shall not unreasonably withhold. If the Artist Team unreasonably fails to approve any repair or restoration, the City shall have the right to make or supervise significant repairs and restorations. In the event that the City makes repairs or restorations not approved by the Artist Team, the Artist Team shall have the right, at their sole option, to have their name and association with the Project severed. To the extent practical, the Artist Team, during their lifetime, shall be given the opportunity to make or supervise significant repairs and restorations and shall be paid a reasonable fee for any such service, if the City and the Artist Team Agreement for Artistic Services Page 7 of 14 , 2001 shall agree, in writing, prior to the commencement of any significant repairs or restorations, upon the Artist Team's fee for such services. 6.6. All repairs and restorations, whether performed by the Artist Team, the City, or third parties responsible to the Artist Team or the City, shall be made in accordance with professionally recognized principles of conservation of artworks. ARTICLE 7. COPYRIGHTS 7.1. The Artist Team shall retain all copyright and other rights in and to the Project created under this Agreement, other than ownership of the Project itself, which like all art installed within Caltrans right-of-way, shall be considered a gift to the people of California. Artist Team shall grant to the City an irrevocable license to graphically depict the artwork in any non-commercial manner whatsoever. For the purpose of this limitation, the graphic depiction of the artwork(s) on materials designed to promote the City or state shall be deemed to be a non-commercial use. 7.2. If for any reason the proposed design is not implemented, all rights to the proposed artwork shall be retained by the Artist Team. 7.3. The Artist Team agrees that all work performed under this Agreement shall comply with all applicable patent, trademark, and copyright laws, rules, regulations, and codes of the United States. The Artist Team further agrees that the Project will not utilize any protected patent, trademark, 'or copyright in performance of work under this Agreement, unless the Artist Team has obtained proper permission and all releases and other necessary documents and provided copies of such releases and documents to City. If the Artist Team specifies any material, equipment, process, or procedure that is protected, the Artist Team shall disclose such patents, trademarks, and copyrights in the construction drawings and technical specifications. 7.4. The Artist Team agrees to release, indemnify, and hold harmless the City, its officers and employees from any and all claims, damages, suits, costs, expenses, liabilities, actions, or proceeding of any kind resulting from the performance of work under this Agreement that infringes upon any patent, trademark, or copyright protected by law. 7.5. All reproductions by the City shall contain a credit to the Artist Team and a copyright notice substantially in the following form: © (Artist Team's names) , (Vear} The Artist Team 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 Team's control of reproductions of the Project. ARTICLE 8. NO EMPLOYER/EMPLOYEE OR AGENCY RELATIONSHIP 8.1. No relationship of employer and employee is created by this Agreement, it being understood that Artist Team shall act hereunder as an independent contractor and not as an employee of City. City shall have the right to control Artist Team's work Agreement for Artistic Services Page 8 of 14 ,2001 only insofar as the results of Artist Team's services rendered pursuant to this Agreement. Artist Team shall not have any claim under this Agreement or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, retirement benefits, Social Security, disability, Worker's Compensation or unemployment insurance benefits, civil service protection, or employee benefits of any kind. Artist Team shall be solely liable for and obligated to pay directly all applicable taxes, including but not limited to Federal and State income taxes. Artist Team shall indemnify and hold City harmless from any and all liability that City may incur because of Artist Team' failure to pay such taxes. Notwithstanding the foregoing, if the City determines that pursuant to state and federal law, Artist Team is an employee for purposes of Federal and State tax withholding, City shall, upon two weeks notice to Artist Team, withhold from the payments to Artist Team hereunder federal and state payroll taxes and pay said sums over to the Federal and State governments. Although City shall control only the results of Artist Team's services under this Agreement, Artist Team agrees to perform their said work and functions at all times in strict accordance with currently approved methods and practices in their field; in a competent, efficient, timely; and satisfactory manner; and in accordance with the standards required by the City. 8.2, Nothing contained in this Agreement shall be construed as limiting the right of Artist Team to engage in their profession separate and apart from this Agreement so long as such activities do not interfere with the performance by Artist Team of their obligations as set forth herein and in Exhibit A. 8.3 Except as City may specify in writing, Artist Team shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Artist Team shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. ARTICLE 9. CONFORMITY WITH LAW AND SAFETY 9.1. Artist Team shall observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies, including all provisions of the Occupational Safety and Health Act of 1979 and all amendments thereto, and all applicable federal, state, municipal, and local safety regulations. All services performed by Artist Team must be in accordance with those laws, ordinances, codes, and regulations. Artist Team shall indemnify and save City harmless from any and all liability, fines, penalties, and consequences from any noncompliance or violations of such laws, ordinances, codes, and regulations. 9.2. If death, serious personal injury or substantial property damage occurs in connection with the performance of this Agreement, Artist Team shall immediately notify the City Manager by telephone. Artist Team shall promptly submit to City a written report, in such form as may be required by City, of all accidents that occur in connection with this Agreement. The report must include the following information: (1) name and Agreement for Artistic Services Page 9 of 14 ,2001 address of the injured or deceased person(s); (2) name and address of Artist Team's subcontractor, if any; (3) name and address of Artist Team's liability insurance carrier; and (4) a detailed description of the accident and whether any of City's equipment, tools, material, or staff were involved. ARTICLE 10. CONFLICT OF INTEREST No officer, member, or employee of City and no member of its governing bodies shall have any pecuniary interest, direct or indirect, in this Agreement or the proceeds thereof. Neither Artist Team nor any member of Artist Team's family shall serve on a City board or committee or hold any position that, either by rule, practice, or action, nominates, recommends, or supervises Artist Team's operations or authorizes funding to Artist Team. ARTICLE 11. ASSIGNMENT OF CONTRACT Nothing contained in this Agreement shall be construed to permit assignment or transfer by Artist Team of any rights under this Agreement and such assignment or transfer is expressly prohibited and void. ARTICLE 12. CONFIDENTIALITY OF INFORMATION Confidential information is defined as all information disclosed to Artist Team that relates to the City's past, present, and future activities, as well as activities under this contract. Artist Team will hold all such information in trust and confidence except as otherwise required by law. Upon cancellation or expiration of this Agreement, Artist Team will return to City all written or descriptive matter that contains any such confidential information. ARTICLE 13. NON-DISCRIMINATION Artist Team assures that they will comply with the Americans with Disabilities Act and with Title VII of the Civil Rights Act of 1964, and that no person shall, on the grounds of-race, creed, color, disability, gender, sexual orientation, national origin, age, religion, Vietnam era Veteran's status, political affiliation, or any other non-merit factors be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under this Agreement. ARTICLE 14. USE OF CITY PROPERTY Artist Team shall not use City premises, property (including equipment, instruments, and supplies), or personnel for any purpose other than in the performance of their obligations under this Agreement. ARTICLE 15. FEDERAL AND STATE AUDITS Agreement for Artistic Services ,2001 Page 10 of 14 Until the expiration of five years after the furnishing of any services pursuant to this Agreement, Artist Team shall make available, upon written request, to the Federal/State government or any of their duly authorized representatives, this Agreement and such books, documents, and records of Artist Team that are necessary to certify the nature and extent of the reasonable cost of services to City. If Artist Team enters into any Agreement with any related organization to provide services pursuant to this Agreement with a Value cost of $10,000 or more over a twelve-month period, such Agreement shall contain a clause to the effect that until the expiration of five years after the furnishing of services pursuant to such subcontract, the related organization shall make available, upon written request, to the Federal/State government or any of their duly authorized representatives, the subcontract, and books, documents and records of such organization that are necessary to verify the nature and effect when and if it is not required by law. ARTICLE 16. MODIFICATION No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto. ARTICLE 17. TERMINATION 17.1. Either party may terminate this Agreement with or without cause by providing thirty (30) days notice, in writing to the other party. Upon the expiration date of said notice, this Agreement shall become of no further force or effect whatsoever and each of the parties shall be relieved and discharged herefrom. 17.2. In the event that the Agreement is terminated by the City without cause, the City shall pay the Artist Team for all work performed and service rendered up to the effective date of the termination. The City shall have no rights to the Artist Team's creative work, designs, or unfinished artwork(s). 17.3. In the event that the Agreement is terminated by the Artist Team without cause and the Artist Team has successfully completed Tasks 1,2, and 3 of the Scope of Services (Exhibit A) of this Agreement, the Artist Team shall retain payments for the completed Tasks and, pursuant to Article 7 of this Agreement, the Artist Team shall retain all copyright and other rights in and to the completed portion of the Project, other than ownership of the completed portion of the Project itself, which shall belong to City. In the event that the Agreement is terminated by the Artist Team without cause prior to completion of Task 3 of the Scope of Services of this Agreement, the Artist Team shall promptly reimburse the City for all payments made under this Agreement prior to termination. 17.4 In the event that the City determines that the Artist Team' has substantially failed to fulfill their obligations as provided under this Agreement, the City shall provide the Artist Team with written notice detailing the specific obligations which the City claims the Artist Team has failed to fulfill and notifying the Artist Team that they are deemed to be in breach of the Agreement. If the breach is not cured or if the City and the Artist Agreement for Artistic Services Page 11 of 14 ,2001 Team cannot agree on a schedule for curing the breach, the Agreement will be deemed terminated on a date specified by the City, which will be no sooner than ten (10) days from the date of issuance of the notice. 17.4. If, because of death, unavailability, or any other occurrence, Artist Team cannot possibly render services or perform work under this Agreement, the Agreement shall. be deemed terminated. ARTICLE I 8. HOLD HARMLESS/INDEMNIFICATION 18.1. Artist Team shall indemnify, defend, and hold harmless City and its officers and employees against liability for injury or damage caused by a negligent act or omission of Artist Team in the performance of this Agreement and shall hold City harmless from any loss or damages directly or indirectly resulting to the City or its officers and employees on account of the performance or character of the work, unforeseen difficulties, accidents, occurrences, or other causes predicated on active or passive negligence of the Artist Team or any subcontractor of Artist Team. Artist Team shall indemnify, defend, and hold harmless the City, its officers, officials, directors, employees and agents from and against any or all loss, liability, expense, claim, costs (including costs of defense), suits, and damages of every kind, nature and description directly or indirectly arising from the performance of the work. This paragraph shall not be construed to exempt the City, its employees, and officers from its own fraud, willful injury, or violation of law whether willful or negligent. For purposes of Section 2782 of the Civil Code the parties hereto recognize and agree that this agreement is not a construction contract. By execution of this Agreement, Artist Team acknowledges and agrees that it has read and understands the provisions hereof and that this paragraph is a material element of consideration. 18.2. The City shall indemnify the Artist Team against liability for injury or damage caused by a negligent act or omission of the City, its officers and employees in their performance of this Agreement and shall hold the Artist Team harmless from any loss occasioned by such negligent act or omission. 18.3. Upon final acceptance of the Project, the City shall, to the extent permitted by law, indemnify, and hold harmless the Artist Team against any and all claims or liabilities that arise thereafter in connection with the Project, except claims by the City against Artist Team and claims that may occur as a result of the Artist Team's breach of the warranties provided elsewhere in this Agreement. ARTICLE 19. INSURANCE/SELF-INSURANCE Artist Team shall at all times during the terms of this Agreement with the City maintain in force those insurance policies and bonds as designated In the attached Exhibit C and will comply with all those requirements as stated herein. Agreement for Artistic Services ,2001 Page 12 of 14 ARTICLE 20. EMPLOYMENT ELIGIBILITY Persons providing services under this contract will be 'required to provide the necessary documentation to establish identity and employment eligibility as required by the Immigration Reform and Control Act of 1986. Failure to provide the necessary documentation will result in the termination of contract as required by the Immigration Reform and Control Act of 1986. ARTICLE 21. SEVERABILITY In the event any of the provisions, or applications thereof, of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions, or applications thereof, shall not be affected. ARTICLE 22. TIME IS OF THE ESSENCE The parties agree that in the performance of the terms and requirements of this 'Agreement by the Artist Team that time is of the essence. Artist Team shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary for satisfactory performance of Artist Team's obligations pursuant to this Agreement. ARTICLE 23. LICENSES, PERMITS, ETC. Artist Team represents and warrants to City that he/she has all licenses, permits, qualifications and approvals of whatsoever nature that are legally required for Artist Team to practice their profession. Artist Team represents and warrants to City that Artist Team 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 for Artist Team to practice his/her profession. ARTICLE 24. GOVERNING LAW This Agreement shall be governed by the laws of the State of California and any suit or action by either party shall be brought in the County of Alameda, California. ARTICLE 25. ATTORNEYS FEES If a party brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party is entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. Such fees may be set by the court in the same action or in a separate action brought for that purpose. Agreement for Artistic Services Page 13 of 14 ,2001 ARTICLE 26. NO WAIVER 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. ARTICLE 27. SURVIVAL All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Artist Team survive the termination of this Agreement. ARTICLE 28. EXECUTION IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the day and year first written above. CITY OF DUBLIN ARTIST Mayor ARTIST Attest: ARTIST City Clerk Approved as to form: City Attorney Agreement for Artistic Services ,2001 Page 14 of 14 EXHIBIT A SCOPE OF SERVICES Summary of Scope of Artist Team's Services The intent of this Agreement is to define the work to be done in designing, planning, fabricating, transporting and installing artwork for the Freeway Underpass Art Project (1- 680 at Dublin Boulevard and Amador Valley Boulevard) in the City of Dublin, California. Artist Team shall design, organize and prepare the four interior walls, columns, entry walls and portions of the overhead span as appropriate for integrating artwork (mural) into unified design. John Wehrle and Daniel Galvez will be primarily responsible for the painting of the interior walls, columns, and overpasses. John Pugh will focus on the entry walls. Artist Team will jointly conceptualize the designs for the entire project. Daniel Galvez will have primary responsibility for conducting the public workshops to solicit community input. Removal of coating and resurfacing of the walls of both underpasses for preparation of the creation of the mural is the responsibility of the Artist Team. They will either undertake the removal personally or subcontract the work with the approval of the City. Compensation will be negotiated with the Artist Team at a later date. TASK 1 July - October 2001 Artist Team in conjunction with consultant and staff will: 1. Create plan for community involvement in content of mural. 2. Conduct community workshops and incorporate results in project design. 3. Provide input on design and placement of lighting and sidewalk portion of project. 4. Submit final design concept for Dublin Boulevard Underpass, basic design for Amador Valley Boulevard Underpass and design concept for all entrance walls to the Freeway Underpass Art Selection Committee, Heritage and Cultural Arts Commission and the City Council. 5. Upon approval by the City Council, submit design to Caltrans Transportation Art Program Committee'for approval. TASK 2 November 2001 - January 2002 Artist Team in conjunction with consultant and staff will: 1. Upon approval by Caltrans Transportation Art Program Committee, coordinate with City Staff for submittal of Caltrans Encroachment Application. 2. Upon receipt of Encroachment Permit, coordinate approved wall preparation -on both Underpasses and entrance walls. Agreement for Artistic Services - EXHIBIT A ,2001 Page 1 of 2 3. Coordinate work schedule, street closure and traffic control plan with City Staff. TASK 3 January - June 2002 Artist Team in conjunction with consultant and staff will: 1. Create mural for Dublin Boulevard Underpass. 2. Submit final design concept for Amador Valley Boulevard Underpass to the Freeway Underpass Art Selection Committee, Heritage and Cultural Arts Commission, and the City Council. TASK 4 July - December 2002 Artist Team in conjunction with consultant and staff will: 1. Create mural for Amador Valley Boulevard Underpass. Page 2 of 2 Agreement for Artistic Services - EXHIBIT A ,2001 EXHIBIT B CONDITION & TERMS OF PAYMENT 1. The term of this Agreement is from to November 30, 2002. The foregoing notwithstanding, this Agreement may be extended by mutual agreement on a month-by-month basis. 2. The City agrees to pay Artist Team fixed fee not to exceed $250,000, which shall. constitute full compensation for all services to be performed and materials furnished by the Artist Team under this Agreement. The fee shall be paid in the following installments, each installment to represent full, final and non-refundable payment for all services and materials provided prior to the due date thereof: City will pay Artist Team upon submission of a written invoice from Artist Team to City. As early as practical, but not later than thirty (30) calendar days following receipt of said invoice, City shall pay Artist Team the full face value of the invoice. Each payment will be divided into three equal parts and paid to each of the artists. 3. The corresponding not to exceed fee shall be as follows: 10% of total fee upon signing of agreement $25,000 20% of total fee upon completion of Task 1 $50,000 20% of total fee upon completion of Task 2 $50,000 20% of total fee upon completion of Task 3 $50,000 30% of total fee upon completion of Task 4 $75,000 TOTAL FIXED FEE $250,000 4. Compensation for the removal of the graffiti coating and the resurfacing of the walls of both underpasses in preparation for the creation of the Work will be negotiated with the Artist Team at a later date. Agreement For Artistic Services ~ EXHIBIT B Page 1 of i ,2001 EXHIBIT C INSURANCE REQUIREMENTS Contractor shall procure and maintain for the duration of the contract "occurrence coverage" insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, employees or subcontractors. The cost of such insurance shall be included in the Contractor's bid. a. Minimum Scope of Insurance. Coverage shall be at least as broad as: 1. 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; or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001 .) 2. Insurance Services Office form number CA 0001 (Ed. 1'/78) covering Automobile Liability, code 1 "any auto" and endorsement CA 0025. 3. Workers' Compensation Insurance as required by the Labor Code of the State of California and Employers Liability Insurance. than: Minimum Limits of Insurance. Artist Team shall maintain limits no less 1. General Liability: $1,000,000 combined single limit per occurrence for bedily injury, personal injury and property damage. If.commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. 3. Workers' Compensation and Employers Liability: Workers' Compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident. c. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials and employees; or the Artist Team shall procure a bond .guaranteeing payment of losses and related investigations, claim administration and defense expenses. Agreement For Artistic Services - EXHIBIT C Page ] of 3 ,2001 d. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: 1. General Liability Coverage. A. The City, its officers, officials, employees and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Artist Team; products and completed operations of the Artist Team, premises owned, occupied or used by the Artist Team, or automobiles owned, leased, hired or borrowed by the Artist Team. The coverage shall contain no special limitations on the scope of the protection afforded to the City, its officers, officials, employees or volunteers. B. The Artist Team's insurance coverage shall be primary insurance as respects the city, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees or volunteers shall be excess of the Artist Team's insurance and shall not contribute with it. C. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. D. The Artist Team's's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Automobile Liability Coverage. Artist Team shall carry automobile insurance in the amount deemed necessary by the City. 3. Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its officers, officials, employees and volunteers for losses arising from work performed by the Artist Team for the City. 3. Professional Liability. Artist Team shall carry professional liability insurance in an amount deemed by the City to adequately protect the Artist Team against liability caused by negligent acts, errors or omissions on the part of the Artist Team in the course of performance of the services specified in this Agreement. 4. All Coverages. Agreement For Artistic Services - EXHIBIT Page 2 of 3 , 2001 Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested-, has been given to the City. e. Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than A:VII. f. Verification of Covera.qe. Artist Team shall furnish City with certificates of insurance and with original endorsements effecting coverage required by this clause. 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 certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. g. Subcontractors. Artist Team 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. h. Waiver. The City may approve a variation in those 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. Agreement For Artistic Services ~ EXHIBIT C Page 3 of 3 ,2001