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HomeMy WebLinkAboutItem 4.07 Art in Park Kolb/Mape CITY CLERK File # 0600-30 AGENDA STATEMENT CITY COUNCIL MEETING DATE: February 15, 2000 SUBJECT: Art in the Parks - Kolb Park and Mape Memorial Park Agreements. Bonnie Leonard, Recreation Supervisor ATTACHMENTS: Kolb Park Agreement Mape Memorial Park Agreement RECOMMEN~TIO~ FINANCIAL STATEMENT: Authorize Mayor to Execute Agreements None DESCRIPTION: In September of 1993 the Dublin City Council gave conceptual approval to the Dublin Fine Arts Foundation' s proposed "Art in the Parks" program. The goal of the "Art in the Parks" is to enhance City parks through the placement of artworks appropriate to each park's history, location, size and use. At the September 1, 1999 meeting of the City Council, the Council approved the recommended artworks for Kolb and Mape Memorial Parks. Funds were designated and allocated to Dublin Fine Arts Foundation for the artworks. Attached are the agreements for the artist for the Kolb Park and the lartist team for the Mape Memorial Park projects. The agreements have been reviewed by the City Attorney and are similar to the agreements for Alamo Creek and Stagecoach Park projects. Staff recommends that the City Council authorize the Mayor to execute the agreements. COPIES TO: Dublin Fine Arts Foundation ITEM NO. G/d faf/cc215ag.doc AGREEMENT THIS AGREEMENT is made and entered into as of the 15th day of February, 2000 by and between THE DUBLIN FINE ARTS FOUNDATION (hereinafter called the "DFA"), John King (hereinafter called the "Artist") and the CITY OF DUBLIN, a Municipal Corporation (hereinafter called the "City"). WITNESSETH WHEREAS, DFA desires to commission and acquire a certain work of art which has been conceived and designed by John King (hereinafter called "the Work") to be installed in the Kolb Park in Dublin, California; and WHEREAS, DFA desires to transfer ownership of title to City and City desires to accept title to the Work, upon installation by Artist, final acceptance thereof by DFA and City and full payment therefore by DFA; and WHEREAS, the Artist desires to carry out this commission; NOW, THEREFORE, the parties agree as follows: 1. COMMISSION. DFA hereby commissions the Artist and the Artist hereby accepts the commission and agrees to design and oversee the fabrication and installation of the Work which shall consist of a "Stone Henge" like enclosure with seating and tile floor created from colored cement which was previously submitted by the Artist and approved by the Dublin Fine Arts Committee, on behalf of DFA, and by the Dublin City Council, on behalf of the City. 2. THE ARTIST'S SERVICES. A. The proposal heretofore submitted by the Artist includes a model of the Work (the "Maquette") and the proposed location of the work (the "Site) as described in No. 1 above. DFA and the City have approved the Maquette and the Site. The Maquette shall remain the property of the Artist. B. The method of installation of the Work shall comply with all structural integrity and safety requirements of the engineers retained by DFA and the City's Public Works Department. C. Following the signing of this Agreement, and at such time as the DFA's financing is in place, but no later than April 1, 2000, DFA shall issue a written "Notice to Proceed" to the Artist which shall authorize the Artist to proceed with the fabrication of the Work. Said Notice to Proceed shall be accompanied by the payment described in Paragraph 3 (A) (2) of this Agreement. The Artist agrees to complete the fabrication and installation of the Work within six months from the date of receipt of said Notice and payment. The notice to proceed shall be deemed received ten (10) days after mailing by First Class mail. 3. FEES. A. DFA shall pay to the Artist, as the commission price for the Work and the services to be rendered by the Artist, the sum of $15,000 to be paid in the following installments: ATTACHMENT1 1) 25 % upon execution of the contract 2) 25 % upon delivery of all materials to the Site 3) 25% upon notice from the Artist that the work is finished 4) 25% upon final acceptance by the City B. The commission price includes all of the Artist's costs and expenses in carrying out its obligations hereunder including materials, design, installation design, fabrication, transportation and installation of the Work. 4. RESPONSIBILITIES OF THE PARTIES. A. The Work shall be fabricated and installed by the Artist in conformity with the Maquette and the Proposal as presented to DFA and City subject to minor changes as are made necessary by the materials or the production process or as are deemed necessary or appropriate by the Artist to carry out the overall design. DFA and City understand that it may not be possible to create the Work precisely as depicted in the Maquette; however, if, during the fabrication process, Artist makes significant changes in size, imagery, color, type of mosaic, or other approved elements of the Work, Artist will notify DFA and City in writing and will receive DFA's and City's written approval prior to proceeding with changes. A significant change is any change in the scope, design, color, size, material, texture or location on the Site of the Work which affects installation, scheduling, Site preparation or maintenance for the Work or the concept of the Work as represented in the Maquette. City's approval may be given by its City Manager or his designee. B. The Artist will be responsible for arranging, supervising and paying all costs associated with transporting the Work to the Site. C. The Artist represents and warrants that the Work, as fabricated and installed, will be free from any defects in materials and workmanship, and that the Work is free and clear of any liens or encumbrances from any source and of any kind or nature whatsoever. The Artist hereby represents and warrants that the work as fabricated and installed, including the design and. materials, is suitable to withstand without cracking, chipping, pealing, fading, rusting, or otherwise deteriorating, the climactic and environmental conditions commonly experienced within and in the general vicinity of the City of Dublin. Such periodic conditions include but are not limited to temperature in excess of 100 degrees Fahrenheit and below 32 degrees Fahrenheit, high velocity winds, heavy rainfall and periods of very low humidity. The Artist shall guarantee the Work to DFA and City against all defects in its design, workmanship and materials for a period of three (3) years following the completion and written acceptance by DFA and City of the installation and if any such defects occur in this period, the Artist agrees to promptly and satisfactorily repair, correct, or replace the defective portion at the Artist's own expense. The final inspection of the Work by DFA and the City shall take place within seven (7) days after written request by the Artist. Final completion shall occur upon correction of all items noted in the final inspection. Upon completion of the installation of the Work and acceptance thereof by DFA and City, the Artist shall not be responsible for any damage inflicted on the Work by any third parties, or resulting from any defects in the technical and working drawings or engineering instructions and drawings provided by engineers retained by DFA and City. -2- D. The Artist hereby represents and warrants to DFA and City that the Work is solely the result of the artistic and creative effort of the Artist, is original, one of a kind, and does not knowingly infringe upon any copyright. Notwithstanding the foregoing representation and warranty, DFA and City hereby acknowledge that Artist has used in the past and may use in the future some of the same elements comprising the Work and the Artist reserves the tight to use elements and portions of the Work in other works of art in different configurations. E. At DFA's or City's request and expense, the Artist will execute and deliver to DFA and City any instruments that DFA or City may reasonably require to confirm ownership of the Work, or to enable DFA or City to dispose of any rights therein. Following the completion of the installation of the Work, the Artist agrees to sign, on request, photographs of the Work to be submitted to it by DFA or City to certify its authenticity. F. If the installation date is delayed by an event under the control of DFA or City, and the Artist is fully prepared to begin installation of the Work, then DFA or City shall pay the cost of storage of the Work and moving the Work to and from the place of storage. 5. FORCE MAJEURE. Any delay in the performance by the Artist shall be excused if such delay is caused by act of the City or DFA, their agents, contractors, employees or by acts of God, accident, war, war-like operations, civil commotion, riots, labor disputes, sabotage, governmental acts, regulations or controls, fire or other casualty. Failure to fulfill contract obligations due to conditions beyond either party's reasonable control will not be considered a breach of contract, provided those obligations affected shall be suspended only for the duration of such conditions. During the existence of any such conditions, both parties shall make reasonable efforts to protect each other's property, equipment and inventory. 6. RISK OF LOSS. The risk of loss or damage to the Work shall be borne by the Artist until the Work has been completed and installed, and the Artist shall take such measures as are necessary to insure the Work for the benefit of DFA and City against loss or damage until final acceptance of the Work by DFA and the City, which shall not exceed thirty (30) days after final completion. 7. INSURANCE. The Artist agrees to procure at Artist's expense and to maintain through fabrication, transportation, installation, and transfer of ownership title of the Work, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work by the Artist or his agents, employees, representatives or subcontractors. A. Minimum Scope of Insurance. Coverage shall be at least as broad as: (1) Insurance Services Office Form Number GL 0002 (Ed. 1/73) coveting comprehensive General Liability and Insurance Services Offices 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- B. Minimum Limits of Insurance. Artist shall maintain limits no less than: (1) General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial General Liability Insurance or other form with a genera! 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: $300,000 combined single limit per accident for bodily injury and property damage. C. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions in excess of $5,000.00 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 in excess of $5,000.00 as respects the City, its officers, officials and employees; or the Artist shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses in excess of $5,000.00. D. Other Insurance Provisions. The policies are to contain or be endorsed to contain the following provisions: (1) Workers' Compensation and Employer's Liability coverage (onsite subcontractors only). The insurer shall agree to waive all rights of subrogation against the City, DFA, their officers, officials, employees and volunteers for losses arising from work performed by the Artist for the City. (2) All Coverage - 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. Insurance under 7(A) and (B) shall be evidenced by certificates provided within ten (10) days of the notice to proceed. Insurance under 7 (D) 1 shall be provided ten (1 0) days prior to shipment of the work. E. Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than A:VII. F. Verification of Coverage. Artist shall furnish City and DFA 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 and DFA before work commences. The City and DFA reserve the right to require complete, certified copies of all required insurance policies at any time. G. Subcontractors. All coverage for subcontractors working on site shall be subject to all of the requirements stated herein. Artist shall assure that all subcontractors working on site shall furnish separate certificates and endorsements, and name the City and DFA as additional insureds. All coverage for subcontractors shall be subject to all of the requirements stated herein. -4- H. Upon acceptance and transfer of title to the City, the City shall become responsible for such insurance as City may deem necessary. 8. RIGHTS OF THE PARTIES. A. DFA and City shall have the right to inspect the Work at the Artist's studio during the fabrication of the Work at dates and times mutually agreed upon between the parties during regular business hours and at reasonable intervals. B. The Artist retains all rights under the Copyright Act of 1976 and all other rights in and to the work, except ownership and possession and except as such rights are limited by this paragraph. The Artist grants to DFA and City and their assigns an irrevocable right and license to make two-dimensional reproductions of the Work for non-commercial purposes including, but not limited to: (i) use in advertising, brochures, media publicity and catalogs or other similar publications; (ii) use in promotional materials; (iii) reproductions for use in non-profit fundraising activities but in such uses, the Artist shall have the right of aesthetic approval of the image which approval shall not be unreasonably withheld; provided that these rights are exercised in a tasteful and professional manner. Where the Artist exercises a right of approval, such approval shall be deemed to have been given if the City receives no r,e. sponse after 21 days' written notice. C. DFA and City shall use their best efforts to give a credit in any publication, substantially in the following form: "an original work by John King, commissioned by Dublin Fine Arts Foundation for Kolb Park, Dublin, California". The Artist shall use his best efforts to give a credit reading substantially "an original work by John King, commissioned by Dublin Fine Arts Foundation for the Kolb Park, Dublin, California" in any publication or public showing under his control of any two-dimensional reproductions of the Work. D. City agrees to place at DFA expense a small plaque near the Work which describes the Work and identifies John King as the artist who created the Work. E. DFA and City agree that they will not intentionally damage, alter, relocate, modify or change the Work in any way, and will take all reasonable precaution in order that it not be damaged, altered or changed by anyone in any manner. In the event that the Work is damaged, altered, modified, changed or otherwise in need of restoration, DFA and City will make every effort to arrange with the Artist for the restoration and to request the Artist's supervision of restoration of the Work. F. The parties acknowledge that the Work is a site-specific work and in no event may the Work be exhibited or lent to others to exhibit separate from the Site without the prior written consent of the Artist which consent shall be based upon the opinion of the Artist, in his sole discretion, as to whether the Work can exist as a work of art by him in the proposed new location. G. Should the City decide to sell the Work, the Artist will have the first right of refusal to repurchase the Work upon the same terms as offered to others. H. If, for any reason, City ever intends to destroy the Work, it shall give written notice to the Artist of its intention and shall give the Artist ninety (90) days to recover the Work, at his sole cost. Within thirty (30) days after receipt of notice, the Artist shall notify City whether or not he intends to recover the Work. If no notice is received from the Artist within said thirty (30) day period, he shall be -5- deemed to have waived his right to recover the Work and City may proceed to destroy it. Upon recovery of the Work by the Artist, title shall revert to the Artist. I. The Artist shall retain the right to claim authorship of the Work. In the event that any part of the Work is materially damaged or altered in any manner, neither DFA nor City shall continue to represent the Work to be the work of the Artist without the written consent of the Artist. 9. MAINTENANCE. A. The Artist will provide the City with complete information on appropriate care and maintenance of the Work, including specifications on any surface finishes and expected frequency of application and any other information pertinent to the proper care and maintenance of the Work. The Artist will also provide information on interior structure and all fabrication methods and materials pertinent to the possibility of later repair or restoration to City. B. Following acceptance of the Work by the City, the City will be responsible for the maintenance of the Work, and agrees to take all reasonable precautions to protect against damage or destruction. C. During the lifetime of the Artist and to the extent practicable, City shall notify the Artist promptly in the event of the need for any major maintenance or restoration services, and agrees to give the Artist a reasonable opportunity either to perform such work or to supervise or consult in its performance for reasonable compensation. If the Artist chooses not to do this and refuses to approve repair and restoration by anyone other than himself or his designated representative, City may proceed with the work and the Artist will have the right to have his name removed from the Work.. D. Following aCceptance of the Work by the City, the Artist agrees to give both written and verbal advice to the City at no charge as to how to deal with any maintenance or restoration problems that may arise with respect to the Work. 10. OWNERSHIP. Title of the Work will remain in the possession of the Artist until the Work has been installed and accepted in writing by DFA and City ("final acceptance") and the Artist has been paid in full. Artist will then transfer his right of ownership (in writing) to DFA who will immediately in turn transfer its title and Artist's right of ownership (in writing) to City which title and right shall be accepted by resolution of the City Council. In the event of termination of this Agreement pursuant to Subparagraph 12 (A) (subject to Artist's compliance with the provisions of said paragraph) or Subparagraph 12 (B), all rights of ownership in the Work will revert to the Artist who will have the sole right to complete, exhibit and sell the Work and any Preliminary designs for it. Notwithstanding anything to the contrary herein, the Artist will retain all right of ownership of the preliminary design, all incidental works made in the creation of the Work, and all copies and reproductions thereof. 11. CITY ASSUMPTION OF RIGHTS AND OBLIGATIONS. Upon transfer by DFA of ownership of title of the Work to City, City shall assume all rights and obligations of DFA as set forth in this Agreement, excepting any obligations whatsoever related to the funding of or payment for the Work or any claims, suits, costs, damages or liabilities of any kind whatsoever associated with the funding or payment of the Work. 12. TERMINATION. This Agreement may be terminated under the following circumstances: A. If the Artist fails to commence the installation of the Work on the installation date or to complete the installation within a reasonable time thereafter (not to exceed thirty (30) days) and such delay or failure to complete is not due to causes excusable by the terms of this Agreement, DFA may send written notice of default to the Artist setting forth a stated time in which to cure, which time shall not be less than thirty (30) days, and if the Artist fails to cure and such failure is not excusable by the terms of this Agreement, then DFA may declare this Agreement terminated and shall have the right to recover back all monies paid to the Artist hereunder. B. The Artist will have the right to terminate this Agreement if, pursuant to Paragraph 3, DFA is more than sixty (60) days late in making any payment. C. If the Artist is unable to complete the Work or to commence the installation on the installation date because of illness or disability or because of events beyond the control of the Artist, as provided herein, the time to complete the Work and its installation shall be extended by the length of such interruption or interruptions, provided that in the aggregate the installation date is not delayed more than six (6) months. 13. APPLICABLE LAW. This Agreement constitutes the entire understanding between the parties with respect to the subject matter herein and no modification or amendment of any of its provisions shall be valid unless in writing and signed by all parties. This Agreement is personal in nature and may not be assigned by the Artist. This contract shall be governed by the laws of the State of California. 14. NOTICE. All notices herein required shall be in writing, by certified mail, return receipt requested, and shall be served on the parties as follows: To DFA at: P. 0. Box 2912 Dublin, California 94568 To City at: City Manager's Office 100 Civic Plaza Dublin, California 94568 To the Artist at: 4127 Soule Street Eureka, CA 95503 Copies of all notices sent by the Artist, City or DFA shall also be sent to Lynne Baer, 1020 Union St., No. 2, San Francisco, California 94133. Any of the above addresses may be changed by notice sent to the other party as herein provided. 15. BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of the heirs, executors and administrators, successors and assigns of the parties. -7- 16. ARBITRATION. Ali disputes arising out of this Agreement will be submitted to final and binding arbitration. The arbitrator will be selected in accordance with the roles of the Arts Arbitration and Mediation Services, a program of California Lawyers for the Arts. If such service is not available, any disputes will be submitted to arbitration in accordance with the rules of the American Arbitration Association. The parties shall jointly agree on an arbitrator. The costs of arbitration shall be borne equally by the parties to the arbitration. In no event shall any monetary award be made against the City, IN WITNESS WHEREOF, the parties hereto have set their hands and seals to this Agreement on the date first written. THE DUBLIN FINE ARTS FOUNDATION THE CITY OF DUBLIN By: By: ATTEST: ATTEST: By: By: ARTIST By: ATTEST: By: -8- AGREEMENT THIS AGREEMENT is made and entered into as of the 15th day of February, 2000 by and between THE DUBLIN FINE ARTS FOUNDATION (hereinafter called the "DFA"), Donna Billick and Troy Corliss (hereinafter called the "Artist Team") and the CITY OF DUBLIN, a Municipal Corporation (hereinafter called the "City"). WITNESSETH WHEREAS, DFA desires to commission and acquire a certain work of art (the"Work") which has been conceived and designed by the Artist Team (hereinafter called "Mape Park Arch") to be installed in the Mape Memorial Park in Dublin, California; and WHEREAS, DFA desires to transfer ownership of title to City and City desires to accept title to the Work, upon installation by Artist Team, final acceptance thereof by DFA and City and full payment therefore by DFA; and WHEREAS, the Artist Team desires to carry out this commission; NOW, THEREFORE, the parties agree as follows: 1. COMMISSION. DFA hereby commissions the Artist Team and the Artist Team hereby accepts the commission and agrees to design and oversee the fabrication and installation of the Work which shall consist of two concrete columns and a concrete arch surfaced with tile mosaic previously submitted by the Artist Team and approved by the Dublin Fine Arts Committee, on behalf of DFA, and by the Dublin City Council, on behalf of the City. 2. THE ARTIST TEAM'S SERVICES. A. The proposal heretofore submitted by the Artist Team includes a model of the Work (the "Maquette") and the proposed location of the work (the "Site) as described in No. 1 above. DFA and the City have approved the Maquette and the Site. The Maquette shall remain the property of the Artist Team. B. The method of installation of the Work shall comply with all structural integrity and safety requirements of the engineers retained by DFA and the City's Public Works Department. C. Following the signing of this Agreement, and at such time as the DFA's financing is in place, but no later than April 1, 2000, DFA shall issue a written "Notice to Proceed" to the Artist Team which shall authorize the Artist Team to proceed with the fabrication of the Work. Said Notice to Proceed shall be accompanied by the payment described in Paragraph 3 (A) (2) of this Agreement. The Artist Team agrees to complete the fabrication and installation of the Work within six months from the date of receipt of said Notice and payment. The notice to proceed shall be deemed received ten (10) days after mailing by First Class mail. ATTACHMENT 2 3. FEES. A. DFA shall pay to the Artist Team, as the commission for the Work and the services to be rendered by the Artist Team, the sum of $15,000 to be paid in the following installments: 1) 2) 3) 4) 25% upon execution of the contract 25% upon delivery of all materials to the Studio Site 25% upon notice from the Artist Team that the work is finished 25% upon final agceptance by the City B. The commission includes all of the Artist Team's costs and expenses in carrying out its obligations hereunder including materials, design, installation design, fabrication, transportation and installation of the Work. 4. RESPONSIBILITIES OF THE PARTIES. A. The Work shall be fabricated and installed by the Artist Team in conformity with the Maquette and the Proposal as presented to DFA and City subject to minor changes as are made necessary by the materials or the production process or as are deemed necessary or appropriate by the Artist Team to carry out the overall design. DFA and City understand that it may not be possible to create the Work precisely as depicted in the Maquette; however, if, during the fabrication process, the Artist Team makes significant changes in size, imagery, color, type of mosaic, or other approved elements of the Work, the Artist Team will notify DFA and City in writing and will receive DFA's.and City's written approval prior to proceeding with changes. A significant change is any change in the scope, design, color, size, material, texture or location on the Site of the Work which affects installation, scheduling, Site preparation or maintenance for the Work or the concept of the Work as represented in the Maquette. City's approval may be given by its City Manager or his designee. B. The Artist Team will be responsible for arranging, supervising and paying all costs associated with transporting the Work to the Site. C. The Artist Team represents and warrants that the Work, as fabricated and installed, will be free from any defects in materials and workmanship, and that the Work is free and clear of any liens or encumbrances from any source and of any kind or nature whatsoever. The Artist Team hereby represents and warrants that the work as fabricated and installed, including the design and materials, is suitable to withstand without cracking, chipping, pealing, fading, rusting, or otherwise deteriorating, the climatic and environmental conditions commonly.experienced within and in the general vicinity of the City of Dublin. Such periodic conditions include but are not limited to temperature in excess of 100 degrees Fahrenheit and below 32 degrees Fahrenheit, high velocity winds, heavy rainfall and periods of very low humidity. The Artist Team shall guarantee the Work to DFA and City against all defects in its design, workmanship and materials for a period of three (3) years following the completion and written acceptance by DFA and City of the installation and if any such defects occur in this period, the Artist Team agrees to promptly and satisfactorily repair, correct, or replace the defective portion at the Artist Team's own expense. The final inspection of the Work by DFA and the City shall take place within seven (7) days after written request by the Artist Team. Final completion shall occur upon correction of all items noted in the final inspection. Upon completion of the installation of the Work and acceptance thereof by DFA and City, the Artist Team shall not be responsible for any damage inflicted on the Work 2 by any third parties, or resulting from any defects in the technical and working drawings or engineering instructions and drawings provided by engineers retained by DFA and City. The Artist Team guarantees that repairs to any defective portion of the Work will begin within thirty (30) days of receiving notice of the need for repair. If either or both members of the Artist Team cannot or will not perform the work themselves, or if the Artist Team cannot agree about the division of labor and costs of repair, the Artist Team nevertheless guarantees that repair work will begin within the thirty-day period. If necessary, the Artist Team may substitute others to perform the repair work, subject to approval by the City, which approval City shall not withhold unreasonably. D. The Artist Team hereby represents and warrants to DFA and City that the Work is solely the result of the artistic and creative effort of the Artist Team, is original, one of a kind, and does not knowingly infringe upon any copyright. Notwithstanding the foregoing representation and warranty, DFA and City hereby acknowledge that Artist Team has used in the past and may use in the furore some of the same elements comprising the Work and the Artist Team reserves the fight to use elements and portions of the Work in other works of art in different configurations. E. At DFA's or City's request and expense, the Artist Team will execute and deliver to DFA and City any instruments that DFA or City may reasonably require to confirm ownership of the Work, or to enable DFA or City to dispose of any rights therein. Following the completion of the installation of the Work, the Artist Team agrees to sign, on request, photographs of the Work to be submitted to it by DFA or City to certify its authenticity. F. If the installation date is delayed by an event under the control of DFA or City, and the Artist Team is fully prepared to begin installation of the Work, then DFA or City shall pay the cost of storage of the Work and moving the Work to and from the place of storage. 5. FORCE MAJEURE. Any delay in the performance by the Artist Team shall be excused if such delay is caused by act of the City or DFA, their agents, contractors, employees or by acts of God, accident, war, war-like operations, civil commotion, dots, labor disputes, sabotage, governmental acts, regulations or controls, fire or other casualty. Failure to fulfill contract obligations due to conditions beyond either party's reasonable control will not be considered a breach of contract, provided those obligations affected shall be suspended only for the duration of such conditions. During the existence of any such conditions, both parties shall make reasonable efforts to protect each other's property, equipment and inventory. 6. RISK OF LOSS. The risk of loss or damage to the Work shall be borne by the Artist Team until the Work has been completed and installed, and the Artist Team shall take such measures as are necessary to insure the Work for the benefit of DFA and City against loss or damage until final acceptance of the Work by DFA and the City, which' shall not exceed thirty (30) days after final completion. 7. INSURANCE. The Artist Team agrees to procure at Artist Team's expense and to maintain through fabrication, transportation, installation, and transfer of ownership title of the Work, insurance against claims for injuries to persons or damages to property which may arise from or in 3 connection with the performance of the Work by the Artist Team or their agents, employees, representatives or subcontractors. A. Minimum Scope of Insurance. Coverage shall be at least as broad as: (1) Insurance Services Office Form Number GL 0002 (Ed. 1/73) coveting comprehensive General Liability and Insurance Services Offices 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. B. Minimum Limits of Insurance. Artist Team shall maintain limits no less than: (1) General Liability: $1,000,000 combined single limit per occurrence for bodily 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: $300,000 combined single limit per accident for bodily injury and property damage. C. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions in excess of $5,000.00 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 in excess of $5,000.00 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 in excess of $5,000.00. D. Other Insurance Provisions. The policies are to contain or be endorsed to contain the following provisions: (1) only). Workers' Compensation and Employer's Liability coverage (onsite subcontractors The insurer shall agree to waive all rights of subrogation against the City, DFA, their officers, officials, employees and volunteers for losses arising from work performed by the Artist Team for the City. (2) All Coverage - 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. Insurance under 7(A) and (B) shall be evidenced by certificates provided within ten (10) days of the notice to proceed. Insurance under 7 (D) 1 shall be provided ten (1 0) days prior to shipment of the work. E. Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than A:VII. F. Verification of Coverage. The Artist Team shall furnish City and DFA 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 and DFA before work commences. The City and DFA reserve the right to require complete, certified copies of all required insurance policies at any time. G. Subcontractors. All coverage for subcontractors working on site shall be subject to all of the requirements stated herein. Artist Team shall assure that all subcontractors working on site shall furnish separate certificates and endorsements, and name the City and DFA as additional insureds. All coverage for subcontractors shall be subject to all of the requirements stated herein. H. Upon acceptance and transfer of title to the City, the City shall become responsible for such insurance as City may deem necessary. 8. RIGHTS OF THE PARTIES. A. DFA and City shall have the right to inspect the Work at the Artist Team's studio(s) during the fabrication of the Work at dates and times mutually agreed upon between the parties during regular business hours and at reasonable intervals. B. The Artist Team retains all rights under the Copyright Act of 1976 and all other rights in and to the work, except ownership and possession and except as such rights are limited by this paragraph. The Artist Team grants to DFA and City and their assigns an irrevocable right and license to make two- dimensional reproductions of the Work for non-commercial purposes including, but not limited to: (i) use in advertising, brochures, media publicity and catalogs or other similar publications; (ii) use in promotional materials; (iii) reproductions for use in non-profit fundraising activities, but in such uses, the Artist Team shall have the right of aesthetic approval of the image which approval shall not be unreasonably withheld, provided that these rights are exercised in a tasteful and professional manner. Where the Artist Team exercises a right of approval, such approval shall be deemed to have been given if the City receives no response after 21 days' written notice. Whenever the City, the DFA and/or their assigns makes a two-dimensional reproduction of the Work, for any of the aforementioned approved purposes, the party making the reproduction shall provide the Artist Team with notice of its intent to make the reproduction and with copies of the reproduced images of the Work. C. DFA and City shall use their best efforts to give a credit in any publication, substantially in the following form: "an original work by Donna Billick & Troy Cofliss, commissioned by Dublin Fine Arts Foundation for Mape Memorial Park, Dublin, California". The Artist Team shall use his best efforts to give a credit reading substantially" an original work by Donna Billick & Troy Cofliss, commissioned by Dublin Fine Arts Foundation for the Mape Memorial Park, Dublin, California" in any publication or public showing under his control of any two-dimensional reproductions of the Work. D. City agrees to place at DFA expense a small plaque near the Work which describes the Work and identifies Donna Billick and Troy Codiss as the artists who created the Work. E. DFA and City agree that they will not intentionally damage, alter, relocate, modify or change the Work in any way, and will take all reasonable precaution in order that it not be damaged, altered or changed by anyone in any manner. In the event that the Work is damaged, altered, modified, changed or otherwise in need of restoration, DFA and City will make every effort to arrange with the Artist Team for the restoration and to request the Artist Team's supervision of restoration of the Work. F. The parties acknowledge that the Work is a site-specific work and in no event may the Work be exhibited or lent to others to exhibit separate from the Site without the prior written consent of both members of the Artist Team, which consent shall be based upon the opinion of the Artist Team, in their sole discretion, as to whether the Work can exist as a work of art by them in the proposed new location. G: Should the City decide to sell the Work, the Artist Team will have the first right of refusal to purchase the Work upon the same terms as offered to others. If both members of the Artist Team desire to purchase the Work individually, rather than jointly, they must nevertheless purchase it collectively, settling the final disposition of ownership between themselves. H. If, for any reason, the City ever intends to destroy the Work, it shall give written notice to the Artist Team of its intention and shall give the Artist Team, collectively or individually, ninety (90) days to recover the Work, at the sole cost of the Artist Team or the individual member who wishes to recover it. Within thirty (30) days after receipt of notice, the Artist Team or the individual member shall notify City whether or not they or he intend(s) to recover the Work If no notice is received from the Artist Team, or any member of it, within said thirty (30) day period, they shall be deemed to have waived their right to recover the Work and City may proceed to destroy it. Upon recovery of the Work by the Artist Team, or either member of it, title shall revert to the Artist Team or the recovering member. If both members of the Artist Team notify City of their intent to recover the Work individually, rather than jointly, they shall nevertheless be required to recover it collectively, settling the final disposition of ownership and the costs of recovery between themselves. I. The Artist Team shall retain the right to claim authorship of the Work. In the event that any part of the Work is materially damaged or altered in any manner, neither DFAnor City shall continue to represent the Work to be the work of either member the Artist Team without their written consent. 9. MAINTENANCE A. The Artist Team will provide the City with complete information on appropriate care and maintenance of the Work, including specifications on any surface finishes and expected frequency of application and any other information pertinent to the proper care and maintenance of the Work. The Artist Team will also provide information on interior structure and all fabrication methods and materials pertinent to the possibility of later repair or restoration to City. B. Following acceptance of the Work by the City, the City will be responsible for the maintenance of the Work, and agrees to take all reasonable precautions to protect against damage or destruction. C. During the lifetimes of the Artist Team members and to the extent practicable, City shall notify the Artist Team promptly in the event of the need for any major maintenance or restoration services, and agrees to give the Artist Team a reasonable opportunity either to perform such work or to supervise or consult in its performance for reasonable compensation. If the Artist Team chooses not to not to do this and refuses to approve repair and restoration by anyone other than themselves or their designated representative, City may proceed with the work and the Artist Team will have the fight to have their names removed from the Work. If one member of the Artist Team chooses not to perform or to approve repair and restoration by anyone other than himself or his designated representative, City and the other member of the Artist Team may nevertheless proceed, and the dissenting member will have the fight to have his name removed from the Work. D. Following acceptance of the Work by the City, the Artist Team agrees to give both written ' and verbal advice to the City at no charge as to how to deal with any maintenance or restoration problems that may arise with respect to the Work. 10. OWNERSHIP. Title of the Work will remain in the possession of the Artist Team until the Work has been installed and accepted in writing by DFA and City ("final acceptance") and the Artist Team has been paid in full. Artist Team will then transfer their fight of ownership (in writing) to DFA who will immediately in turn transfer its title and Artist Team's fight of ownership (in writing) to City, which title and fight shall be accepted by resolution of the City Council. In the event of termination of this Agreement pursuant to Subparagraph 12 (A) (subject to Artist Team's compliance with the provisions of said paragraph) or Subparagraph 12 (B), all fights of ownership in the Work will revert to the Artist Team who will have the sole fight to complete, exhibit and sell the Work and any preliminary designs for it. Notwithstanding anything to the contrary herein, the Artist Team will retain all fight of ownership- of the preliminary design, all incidental works made in the creation of the Work, and all copies and reproductions thereof. 11. CITY ASSUMPTION OF RIGHTS AND OBLIGATIONS. Upon transfer by DFA of ownership of title of the Work to City, City shall assume all fights and obligations of DFA as set forth in this Agreement, excepting any obligations whatsoever related to the funding of or payment for the Work or any claims, suits, costs, damages or liabilities of any kind whatsoever associated with the funding or payment of the Work. 12. TERMINATION. This Agreement may be terminated under the following circumstances: A. If the Artist Team fails to commence the installation of the Work on the installation date or to complete the installation within a reasonable time thereafter (not to exceed thirty (30) days) and such delay or failure to complete is not due to causes excusable by the terms of this Agreement, DFA may send written notice of default to the Artist Team setting forth a stated time in which to cure, which time shall not be less than thirty (30) days, and if the Artist Team fails to cure and such failure is not excusable by the terms of this Agreement, then DFA may declare this Agreement terminated and shall have the fight to recover back all monies paid to the Artist Team hereunder. B. The Artist Team will have the fight to terminate this Agreement if, pursuant to Paragraph 3, DFA is more than sixty (60) days late in making any payment. C. If the Artist Team is unable to complete the Work or to commence the installation on the installation date because of illness or disability or because of events beyond the control of the Artist Team, as provided herein, the time to complete the Work and its installation shall be extended by the length of such interruption or interruptions, provided that in the aggregate the installation date is not delayed more than six (6) months. 13. APPLICABLE LAW. This Agreement constitutes the entire understanding between the parties with respect to the subject matter herein and no modification or amendment of any of its provisions shall be valid unless in writing and signed by all parties. This Agreement is personal in nature and may not be assigned by the Artist Team. This contract shall be governed by the laws of the State of California. 14. NOTICE. All notices herein required shall be in writing, by certified mail, return receipt requested, and shall be served on the parties as follows: To DFA at: P. 0. Box 2912 Dublin, California 94568 To City at: City Manager's Office 100 Civic Plaza Dublin, Califomia 94568 To the Artist Team at: 35301 Road 31 Davis, CA. 95616 Copies of all notices sent by the Artist Team, City or DFA shall also be sent to Lynne Baer, 1020 Union St., No. 2, San Francisco, California 94133. Any of the above addresses may be changed by notice sent to the other party as herein provided. 15. BINDING EFFECT. This Agreement shah be binding upon and inure to the benefit of the heirs, executors and administrators, successors and assigns of the parties. 16. ARBITRATION. All disputes arising out of this Agreement will be submitted to final and binding arbitration. The arbitrator will be selected in accordance with the rules of the Arts Arbitration and Mediation Services, a program of California Lawyers for the Arts. If such service is not available, any disputes will be submitted to arbitration in accordance with the rules of the American Arbitration Association (Association). The parties shall jointly agree on an arbitrator. The costs of arbitration shall be borne equally by the parties to the arbitration. In no event shall any monetary award be made against the City, IN WITNESS WHEREOF, the parties hereto have set their hands and seals to this Agreement on the date first written. 8 DUBLIN FINE ARTS FOUNDATION By: ARTIST TEAM By: By: CITY OF DUBLIN By: ATTEST: Mayor City Clerk