HomeMy WebLinkAbout4.12 Boulevard Development Public ArtSTAFF REPORT
CITY COUNCIL
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Agenda Item 4.12
DATE:July 19, 2022
TO:Honorable Mayor and City Councilmembers
FROM:Linda Smith, City Manager
SUBJECT:Boulevard Development Public ArtPreparedby:Shaun Chilkotowsky,Heritage &Cultural Arts Manager
EXECUTIVE SUMMARY:The City Council will consider Dublin Crossing, LLC.’s proposal for public art at the Boulevard Development and the associated Public Art Installation and Maintenance Agreement.
STAFF RECOMMENDATION:Approve the artworks and adopt the Resolution Approving a Public Art Installation and Maintenance Agreement with Dublin Crossing,LLC.,for Public Art at the Boulevard Development.
FINANCIAL IMPACT:This is developer-installed artwork. There is no impact on City funds. The developer's Public Art obligation is $2,720,401.
DESCRIPTION:Background and Public Art Master PlanDublin Crossing, LLC.is the developer completing the multi-neighborhood residential development as part of the Dublin Crossing Specific Plan, commonly known as the Boulevard. The development is being constructed in five phases, with the public art obligation for all phases totaling more than $2.7 million. As part of the Site Development Review approved by the City Council, Dublin Crossing has elected to install public art on site.Due to the size and complexity of the project, phased nature of construction, and high valuation of the obligation, Dublin Crossing completed the Boulevard Public Art Master Plan that the City Council approved in October 2017. That plan, included in Attachment 2, outlines locations, types of artworks, and artists.
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Since the approval of the Boulevard Public Art Master Plan, Staff has been collaborating with the developer on project implementation. In July 2019, the Heritage and Cultural Arts Commission reviewed the developer-proposed artists and artworks. Following deliberation, the Commission voted unanimously to approve the artworks with considerations. Design ProposalsThe developer has proposed three monument sculptures and one functional artwork. The artists and proposals are included in Attachment 2.The first two pieces are by artist Kevin Box of Santa Fe, New Mexico. Kevin Box has received numerous awards, including the Award of Excellence by the Structural Engineers Association of California, and his work is part of art collections worldwide. Mr. Box creates monumental metal sculptures that mimic delicate origami, the Japanese art of paper folding. Mr. Box’s Rising Peace will serve as a gateway monument opposite the Recreation Center. It will feature five orizuru, or paper cranes, stacked upon a natural boulder in an arch. Cranes are considered the most classic of origami designs and symbolize peace in Japan. Mr. Box will also create Iron Horses, a trio of monumental origami horses in white, black, and natural bronze, to serve as a gateway to the Iron Horse Trail. The next piece is by artist David Duskin of Petaluma, California. Mr. Duskin is a trained artist, blacksmith, metal fabricator, and instructor at the Academy of Art University in San Francisco. The artwork, titled “Each Other,”are two inflated cor-ten steel sculptures with textured planes and vertical engravings. The columns are created using an unusual heating technique and inflating the steel to create a balloon-like effect. Standing at approximately 14 feet tall, these two pieces will belocated in a pocket park near the intersection of Arnold Road and Central Parkway.The last piece is by artist Tyler Van Der Stappen of Ogden, Utah. The piece features a corkscrew-like bike rack that will be located outside of the Boulevard Recreation Center. The bike rack will resemble a wine cork with a spiral corkscrew upon which bikes can be locked. Mr. Van Der Stappen’s original proposal also included a series of public art benches that the Heritage and Cultural Arts Commission appreciated but had concerns about how diverse cultures could perceive the designs. Following research on the proposed hand positions that were creating the bases for the functional benches, these proposals have been omitted from the final proposal.Staff Review and Community OutreachDesigns have been reviewed internally by the Planning Division and Public Art Staff. Staff has no concerns with the safety or design of the proposed artworks. Complete structural design and permitting will be required before fabrication and installation. As specified in the City’s Public Art Master Plan, members of the public were invited to participate in the review and selection of artists and artworks. In June 2019, the developer hosted a public reception where the public met with the artists to view renderings and maquettes of the proposed artworks. Approximately 75 people attended the reception, and all feedback was positive. Installation and Maintenance Agreement
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As part of the Site Development Review process, a condition of approval is establishedto ensure the requirements of the Public Art Ordinance are met. Furthermore, on privatedevelopments that choose to install public art on site, the City and Developer enter into a Public Art Installation and Maintenance Agreement (Attachment 2). The agreement will ensure the art is installed as proposed and the Developer is familiar with the maintenance requirements that must be conducted for the life of the art.The Public Art Installation and Maintenance Agreement also details the public art obligation. For this project, the total obligation is $2,720,401, of which $750,000 has been satisfied in the form of cash contributions to the City, insurance and maintenance endowments to the Boulevard Homeowners Association, and a cash contribution for the inclusion of the Don Biddle Bust at the future Don Biddle Community Park. Furthermore, the Public Art Installation and Maintenance Agreement establishes an agreed-upon installation timeline. The City and Dublin Crossing desire to have all artworks completed and installed prior to occupancy of the 1,500th unit. As of June 30, 2022, 983 of the planned 1,758 units have been completed. Should the artworks not be done before the completion of the 1,500
th unit, Dublin Crossing will be required to obtain faithful performance labor and material bonds to ensure the artworks are completed as proposed.
STRATEGIC PLAN INITIATIVE:None.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:The City Council Agenda was posted, and a copy of the Staff Report was provided to Dublin Crossing, LLC.
ATTACHMENTS:1) Resolution Approving a Public Art Installation and Maintenance Agreement with Dublin Crossing, LLC., for Public Art at the Boulevard Development.
2)Exhibit A to the Resolution – Public Art Installation and a Maintenance Agreement with Dublin Crossing, LLC., for Public Art at the Boulevard Development.
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Attachment 1
Reso. No. XX-22, Item X.X, Adopted 07/19/2022 Page 1 of 2
RESOLUTION NO. XX – 22
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING A PUBLIC ART INSTALLATION AND MAINTENANCE AGREEMENT WITH
DUBLIN CROSSING, LLC., FOR PUBLIC ART AT THE BOULEVARD DEVELOPMENT
WHEREAS,Dublin Crossing, LLC., (“Developer”) is currently developing a multi-phased
development of up to 1,995 residential units known as Boulevard; and
WHEREAS,Developer is required under Dublin’s Public Art Ordinance, Municipal Code
sections 8.58.060(A) and 8.58.070(D), to install public art approved by the City Council and
enter into a Public Art Installation and Maintenance Agreement; and
WHEREAS,on October 17, 2017, the City Council approved Developer’s Public Art
Master Plan that outlined potential artists and locations for public art; and
WHEREAS,on July 11, 2019, the Heritage and Cultural Arts Commission reviewed the
Developers public art proposal and voted unanimously to recommend the artworks to the City
Council; and
WHEREAS,upon recommendation by the Heritage and Cultural Arts Commission, on
July 19, 2022, the City Council approved Developer’s proposed public artworks by artists Kevin
Box, David Duskin, and Tyler Van Der Stappen; and
WHEREAS,Developer has entered into contracts with the selected artists to complete
the approved artwork; and
WHEREAS,Developer is prepared to install the completed artwork as required and as
outlined in the Public Art Installation and Maintenance Agreement.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
herby approve the artworks as proposed and approve the Public Art Installation and
Maintenance Agreement with Dublin Crossing, LLC., attached hereto as Exhibit A,and
authorizes the City Manager to execute the Agreement and make any necessary, non-
substantive changes that carry out the intent of this Resolution.
{Signatures on the follow page}
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Reso. No. XX-22, Item X.X, Adopted 07/19/22 Page 2 of 2
PASSED, APPROVED AND ADOPTED this 19th day of July 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
Mayor
ATTEST:
_________________________________
City Clerk
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PUBLIC ART INSTALLATION AND MAINTENANCE AGREEMENT FOR THE
PUBLIC ART AT THE BOULEVARD DEVELOPMENT
This PUBLIC ART INSTALLATION AND MAINTENANCE
AGREEMENT (this "Agreement") is dated as of July 19, 2022 (the "Effective Date"), and is entered into
between the City of Dublin, a California municipal corporation ("City"), and Dublin Crossing, LLC, a
Delaware limited liability company ("Developer"), and Boulevard Master Owners Association, a California
nonprofit mutual benefit corporation ("Association"). City, Developer, and Association may be referred
to individually as a "Party" or collectively as the "Parties." City and Developer enter into this Agreement
with reference to the following recitals of fact (each, a “Recital”):
RECITALS
A.Developer and Association are the owners of certain real property located in the City of
Dublin, State of California, and commonly referred to as "Boulevard". Boulevard is generally located
between Scarlett Drive to the West, Dublin Boulevard to the South, Arnold Road to the East and 5th Street
to the North (APN: 986-0001-20 and a portion of APN 986-0001-15) (the "Property").
B.Developer is currently developing a multi-phased development comprised of up to 1,995
residential units and 35 acres of public parkland (the "Project").
C.On June 14, 2016, the City’s Planning Commission approved Resolution 16-10, which
approved a Site Development Review permit ("SDR") for Phases 1A and 1B of the Project. Condition #16
of the SDR Permit (the "Phase 1A-1B Condition") requires Developer to acquire and install a public art
project in accordance with Chapter 8.58 of the City Municipal Code valued at a minimum of 0.5% of the
building valuation (exclusive of land) for the entire Project ($2,720,401.25), and prior to occupancy of the
first unit, (a) prepare a Public Art Master Plan for the entire Project area (“Boulevard Public Art Master
Plan”) and (b) execute an agreement that sets forth the ownership, maintenance responsibilities and
insurance coverage for the public art project.
D.On May 9, 2017, the City’s Planning Commission approved Resolution 17-05, which
approved a SDR permit for Phases 2 and 3 of the Project. Condition #16 of the SDR Permit (the "Phase 2-
3 Condition") requires Developer to acquire and install a public art project in accordance with Chapter
8.58 of the City Municipal Code valued at a minimum of 0.5% of the building valuation (exclusive of land)
for the entire Project, and prior to occupancy of the first unit in each neighborhood, install public art in
accordance with the Boulevard Public Art Master Plan. For Phases 2-3, the total Public Art valuation is
$1,125,178.23.
E.On September 14, 2017, the City’s Heritage and Cultural Arts Commission reviewed the
Boulevard Public Art Master Plan and recommended approval to the City Council. The Boulevard Public
Art Master Plan consists of various functional art pieces, benches, bike racks, shade structure, located at
the entrance to the recreation center, entry and various pocket parks (collectively the "Public Art"),
F.On October 17, 2017 the City Council reviewed and approved the Boulevard Public Art
Master Plan, a copy of which is attached hereto and incorporated herein as Exhibit A.
G. On March 20, 2018 the City requested and the Developer provided a contribution in the
amount of $250,000.00 for the City’s Don Biddle Bust and Veteran Art Project at Don Biddle Community
Park, with the intent that this contribution shall apply to the Developer’s total public art obligations. This
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request was fulfilled with a $200,000 cash contribution paid to the City for the Veterans Art and $50,000
paid to artist Steven Whyte for the Don Biddle Bust.
H. On May 8, 2018, the City’s Planning Commission approved Resolution 18-12, which
approved a SDR permit for Phases 4 and 5 of the Project. Condition #16 of the SDR Permit (the "Phase 4-
5 Condition") requires Developer to acquire and install a public art project in accordance with Chapter
8.58 of the City Municipal Code valued at a minimum of 0.5% of the building valuation (exclusive of land)
for the entire Project, and prior to occupancy of the last unit in each neighborhood, install public art in
accordance with the Public Art Master Plan. For Phases 4-5, the total Public Art valuation is $898,857.68.
I. Developer’s total public art obligation for the entire Project is $2,720,401.25 (“Total
Obligation”). To date, Developer has satisfied $750,000.00 of its Total Obligation, including $500,000.00
in form of insurance and maintenance endowments paid to the Association, plus the $250,000.00 pursuant
to Recital G above. The remainder of the Total Obligation, $1,970,401.25, shall be installed throughout the
Project area, expended pursuant to Section 8.58.060 of the Dublin Municipal Code, and/or contributed as a
monetary payment to the City pursuant to the terms of this Agreement and the Boulevard Public Art Master
Plan.
J. All public art installations are subject to approval by the City Council upon
recommendation by the Heritage and Cultural Arts Commission.
K. On July 11, 2019, the City's Heritage and Cultural Arts Commission reviewed the proposed
Public Art designs for the Project and recommended approval to the City Council.
L. On July 19, 2022 the City Council adopted Resolution XX-22, approving the Public Art
designs for the Project. The Public Art to be installed pursuant to the Boulevard Public Art Master Plan
shall be installed in the locations specified in Exhibit B, attached hereto and incorporated herein.
M. Conditioned on the written approval by Association, which shall not be unreasonably
withheld, conditioned or delayed, Developer shall enter into separate public art agreements (each, an "Artist
Agreement") with David Duskin, Kevin Box, and Tyler van der Stappen, each a sole proprietor (each, an
"Artist"). Under each Artist Agreement, the Artist shall design, fabricate, and install public art on the
Property. Each Artist Agreement will contain maintenance provisions, warranties, standards, and releases.
A copy of the Artist Agreements is attached hereto and incorporated herein as Exhibit C.
N. The Parties desire to enter into this Agreement to memorialize City’s approval of the Public
Art. Further, compliance with this Agreement is intended to fully satisfy the Phase 1A-1B Condition, Phase
2-3 Condition, and Phase 4-5 Condition (hereafter, the “Conditions”) and the Developer’s public art
obligation under Chapter 8.58 of the Dublin Municipal Code.
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION AND THE
PROMISES AND COVENANTS OF CITY, DEVELOPER, AND ASSOCIATION SET FORTH IN THIS
AGREEMENT, CITY, DEVELOPER, AND ASSOCIATION AGREE, AS FOLLOWS:
TERMS AND CONDITIONS
1. PUBLIC ART INSTALLATION, OWNERSHIP, AND MAINTENANCE
1.1 Installation and City Manager Determination. Developer shall cause the Public Art to be
installed on the Property prior to the occupancy of the 1,500th unit at the locations set forth on Exhibit B.
Within Ten (10) working days of notice of the installation, the City Manager, or his/her designee, shall
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determine if the Public Art has been completed in a satisfactory manner, which determination shall not be
unreasonably withheld, conditioned or delayed and shall be made if the Public Art is in compliance with
this Agreement, and the applicable Artist Agreements, and if such determination cannot be made, the City
Manager shall provide written notice to Developer, pursuant to Section 2.2 herein, specifying the corrective
work needed for compliance within this ten (10) day time period. In the event that corrective work is
required to bring the Public Art into compliance, Developer shall notify City upon completion of the
corrective work pursuant to Section 2.2, and the City Manager will again be permitted ten (10) days to
inspect the work as provided in this section. If written notice of the City Manager’s approval of the Public
Art and/or approval of any corrective work needed is not timely provided to Developer, pursuant to Section
2.2 herein, the Public Art shall be deemed approved and completed to the City Manager’s satisfaction, and
certificates of occupancy shall not be withheld for failure to satisfy the Condition.
1.2 Security.
1.2.1 If the installation of the Public Art will not take place prior to occupancy of the
1,500th unit, Developer shall furnish City with the following security in a form satisfactory to the City
Attorney for the installation of Public Art.
(a) Faithful Performance. Either a cash deposit, a corporate surety bond
issued by a company duly and legally licensed to conduct a general surety business in the State of California,
or an instrument of credit equivalent to one hundred percent (100%) of the estimate set forth in Exhibit D
and sufficient to assure City that the Public Art will be satisfactorily installed.
(b) Labor and Materials. Either a cash deposit, a corporate surety bond issued
by a company duly and legally licensed to conduct a general surety business in the State of California, or
an instrument of credit equivalent to one-hundred percent (100%) of the estimate set forth in Exhibit D and
sufficient to assure City that persons furnishing labor, materials, or equipment shall be paid therefore.
(c) City shall be the sole indemnitee named on any security required by this
Agreement.
(d) Within fifteen (15) calendar days of notice of the installation, the City
Manager, or his/her designee, shall determine if the Public Art has been completed and installed in a
satisfactory manner, which determination shall not be unreasonably withheld, conditioned or delayed and
shall be made if the Public Art is in substantial compliance with compliance with this Agreement, and the
applicable Artist Agreements, as applicable. The security set forth in this Section 1.2 shall be released upon
such determination. If such determination cannot be made, the City Manager shall provide written notice
to pursuant to Section 2.2 specifying the corrective work needed for compliance within this fifteen (15) day
time period. In the event that corrective work is required to bring the Public Art into compliance, Developer
will notify the City upon completion of the corrective work, and the City Manager will again be permitted
fifteen (15) days to inspect the work as provided in this paragraph. If written notice of the City Manager’s
approval of the Public Art and/or approval of any corrective work needed is not timely provided, pursuant
to Section 2.2 herein, the Public Art shall be deemed approved and completed to the City Manager’s
satisfaction, and the security set forth in this Section 1.2 shall be released.
1.3 Monetary Payment. Within 30 days of City’s approval or deemed approval, as set forth in
Section 1.1 or 1.2.1(d) above, Developer shall satisfy any remaining amount of its Total Obligation by
making a monetary payment directly to the City.
1.4 Ownership and Association's Maintenance. Following City’s approval or deemed
approval, as set forth in Section 1.1 or 1.2.1(d) above, Association shall accept the Public Art from the
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Artist. Thereafter, Association shall own and maintain the Public Art, at its sole cost and expense, in good
repair and condition and in accordance with the general maintenance plan prepared by the Artist under
terms set forth in the applicable Artist Agreement. Association shall use reasonable efforts to maintain the
Public Art in good repair and condition. If the Public Art suffers deterioration due to any cause other than
Association's failure to maintain the Public Art, then Association and City shall meet and confer in good
faith to determine whether to: (a) replace any portion of the Public Art, (b) translate any component into
new media, or (c) restore the Public Art.
1.5 Destruction and Replacement of Public Art. The anticipated life span of the Public Art is
a minimum of twenty-five (25) years from the date of approval or deemed approval by City, as set forth in
Section 1.1 or 1.2.1 (d) above. After that time, Association may, in consultation with City, re-evaluate the
Public Art to determine if it retains its identity as a work of art and, if not, whether to take appropriate
action, including the possibility of destroying the Public Art. In the event that Association, in consultation
with City, determines that the Public Art does not retain its identity as a work of art and Association wishes
to destroy the Public Art, Association must replace the Public Art with art of similar value, adjusted for
inflation (“Replacement Art”). Any proposed Replacement Art must be approved by City prior to the
destruction of the Public Art.
1.6 City’s Maintenance Option. In the event that Association fails to maintain the Public Art
in accordance with this Agreement, City shall provide written notice of such condition pursuant to Section
2.2. In the event that Association fails to cure or commence to cure the condition within thirty (30) days
following receipt of such notice, City shall have the right, but not the obligation, to perform all acts
necessary to cure such condition (or to pursue such other remedy available to City), including without
limitation the right to access the Public Art, and to receive from Association the City’s reasonable costs for
such action.
1.7 Modifications; Relocation. Association intends to display the Public Art as originally
created by each Artist at the locations set forth on Exhibit B. Notwithstanding the foregoing, Association
may make minor modifications to the Public Art and/or relocate the Public Art with the consent of City
which shall not be unreasonably withheld, conditioned, or delayed.
1.8 Visual Barriers. The Parties agree that no structures or visual barriers of any kind that
impair or impede the public’s ability to view the Public Art shall be constructed or maintained on or adjacent
to the Public Art, nor shall the Parties do anything that shall prevent, impair, or discourage the public’s
ability to view the Public Art.
1.9 Insurance. Developer and Artist are required to secure and maintain insurance during the
fabrication and installation phases of the Public Art as set forth further in the Artist Agreement. Developer
shall provide City with verification of the required insurance under the Artist Agreement. In addition,
Association shall obtain and maintain in effect a combined single limit policy of liability insurance not less
than one million dollars ($1,000,000) covering the Public Art once it is placed, with insurers with a Bests’
rating of no less than A:VII and shall name City as an additional insured on such policy. An endorsement
must state that coverage is primary insurance with respect to City and its officers, officials, employees and
volunteers, and that no insurance or self-insurance maintained by City shall be called upon to contribute to
a loss under the coverage. Any failure of Developer or Association to comply with reporting provisions of
the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
Developer and Association shall notify City, pursuant to Section 2.2, within fourteen (14) days of
notification from Developer’s or Association’s respective insurer if such coverage is suspended, voided or
reduced in coverage or in limits.
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1.10 Satisfaction of the Condition. City agrees that compliance with this Agreement shall fully
satisfy the Condition. Provided Developer is in substantial compliance with this Agreement and has
otherwise fulfilled any non-Public Art-related requirements, City may not withhold issuance of the Project's
building permits and/or certificates of occupancy, including but not limited to the 1,500th certificate of
occupancy for the Project.
2.GENERAL PROVISIONS
2.1 Incorporation of Recitals. The Recitals set forth above are true and correct and
incorporated into this Agreement by reference.
2.2 Notices, Demands and Communications Between the Parties.
2.2.1 Delivery. Any and all notices submitted by any Party to another Party pursuant
to or as required by this Agreement shall be proper if in writing and dispatched by messenger for immediate
personal delivery, nationally recognized overnight (one business day) courier (i.e., United Parcel Service,
Federal Express, etc.) or by registered or certified United States mail, postage prepaid, return receipt
requested, to the address of the recipient Party, as designated in this Section. Notices may be sent in the
same manner to such other addresses as the Parties may from time to time designate by notice in accordance
with this Section. Notice shall be deemed received by the addressee, regardless of whether or when any
return receipt is received by the sender or the date set forth on such return receipt, on the day that it is
dispatched by messenger for immediate personal delivery, one business day after delivery to a nationally
recognized overnight carrier or two (2) calendar days after it is placed in the United States mail in
accordance with this Section 2.2.1. Any attorney representing a Party may give any notice on behalf of
such Party.
2.2.2 Addresses. The notice addresses for the Parties, as of the Effective Date, are as
follows:
Developer:
Association:
City:
Dublin Crossing, LLC,
12657 Alcosta Blvd. Suite 250
San Ramon, CA 94583
Attn: Josh Roden
josh.roden@brookfieldpropertiesdevelopment.com
Boulevard Master Owners Association
c/o Associa Northern California
4305 Hacienda Drive, Suite 140
Pleasanton, CA 94588
Attn: Evette Pope
Email: evette.pope@associa.us
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attn: City Manager
Email: city.manager@dublin.ca.gov
With a copy to:
Meyers Nave
1999 Harrison St., 9th Floor
Oakland, CA 94607
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Attn: John D. Bakker, Esq.
Email: jbakker@meyersnave.com
2.3 Relationship of Parties. The Parties each intend and agree that City, Developer, and
Association are independent entities and do not intend by this Agreement to create any partnership, joint
venture, or similar business arrangement, relationship or association between them.
2.4 Legal Actions. Either Party may institute legal action, at law or in equity, to enforce or
interpret the rights or obligations of the Parties under this Agreement or recover damages.
2.5 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this
Agreement, the rights and remedies of the Parties set forth in this Agreement are cumulative and the exercise
by a Party of one or more of such rights or remedies shall not preclude the exercise by such Party, at the
same or different times, of any other rights or remedies for the same default or the same rights or remedies
for any other default by the other Party or Parties.
2.6 Principles of Interpretation. A word, term or phrase defined in the singular in this
Agreement may be used in the plural, and vice versa, all in accordance with ordinary principles of English
grammar, which shall govern all language in this Agreement. The words “include” and “including” in this
Agreement shall be construed to be followed by the words: “without limitation.” Each collective noun in
this Agreement shall be interpreted as if followed by the words “(or any part of it),” except where the
context clearly requires otherwise. Every reference to any document, including this Agreement, refers to
such document, as modified from time to time (excepting any modification that violates this Agreement),
and includes all exhibits, schedules, addenda and riders to such document. The word “or” in this Agreement
includes the word “and.” Every reference to a law, statute, regulation, order, form or similar governmental
requirement refers to each such requirement as amended, modified, renumbered, superseded or succeeded,
from time to time.
2.7 Governing Law. The procedural and substantive laws of California shall govern the
interpretation and enforcement of this Agreement, without application of conflicts or choice of laws
principles. The Parties acknowledge and agree that this Agreement is entered into, is to be fully performed
in and relates to real property located in the County of Alameda, State of California. All legal actions
arising from this Agreement shall be filed in the Superior Court of California in and for the County of
Alameda or in the United States District Court with jurisdiction in Alameda County.
2.8 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended
to confer any rights or remedies under or by reason of this Agreement on any person or entity other than
the Parties and their respective permitted successors and assigns, nor is anything in this Agreement intended
to relieve or discharge any obligation of any third person to any Party or give any third person any right of
subrogation or action over or against any Party.
2.9 Time Declared to be of the Essence. As to the performance of any obligation under this
Agreement of which time is a component, the performance of such obligation within the time specified is
of the essence.
2.10 Legal Costs. In the event that a Party brings an action to enforce this Agreement or
otherwise arising out of this Agreement, the prevailing Party in such action shall be entitled to recover from
the other Party its Legal Costs. As used in this section, the term "Legal Costs" is hereby defined as all
reasonable costs and expenses such Party incurs in any legal proceeding, or other matter for which such
Party is entitled to be reimbursed for its Legal Costs, including reasonable attorneys’ fees, court costs and
expenses and consultant and expert witness fees and expenses.
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2.11 Entire Agreement. This Agreement integrates all of the terms and conditions mentioned
in this Agreement or incidental to this Agreement, and supersedes all negotiations or previous agreements
between the Parties with respect to all or any portion of the Public Art.
2.12 Waivers and Amendments. All waivers of the provisions of this Agreement and all
amendments to this Agreement must be in writing and signed by the appropriate authorities of the Parties.
Failure to insist on any one occasion upon strict compliance with any term, covenant, condition, restriction
or agreement contained in this Agreement shall not be deemed a waiver of such term, covenant, condition,
restriction or agreement, nor shall any waiver or relinquishment of any rights or powers under this
Agreement, at any one time or more times, be deemed a waiver or relinquishment of such right or power at
any other time or times.
2.13 Assignment. Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without
the prior written consent of the other parties, which shall not be unreasonably withheld, conditioned or
delayed. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and
be enforceable by the parties and their respective successors and assigns.
2.14 Successors and Assigns. All references to Developer in this Agreement shall be deemed
to refer to and include Dublin Crossing, LLC, a Delaware limited liability company, and all of its successors
and assigns.
2.15 Survival of Agreement. All provisions of this Agreement shall be applicable to any dispute
between the Parties arising from this Agreement, whether prior to or following expiration or termination of
this Agreement, until any such dispute is finally and completely resolved between the Parties, either by
written settlement, entry of a non-appealable judgment or expiration of all applicable statutory limitations
periods and all terms and conditions of this Agreement relating to dispute resolution and limitations on
damages or remedies shall survive any expiration or termination of this Agreement.
2.16 Counterparts. This Assignment may be executed in one or more counterparts. All
counterparts so executed shall constitute one agreement, binding on all Parties, even though all Parties are
not signatory to the same counterpart. The Parties agree to accept signed copies of this Agreement
transmitted by electronic facsimile copies as original documents. The Parties acknowledge that copies of
this Assignment may be transmitted by a Party over the Internet and printed by the recipient and that the
printed document may contain different type styles and type sizes, different pagination and different
formatting that the original copy of the Assignment in the possession of the Party sending the Assignment.
The Parties agree that any such copies of this Assignment shall be accepted by the Parties as true and correct
originals of the Assignment so long as the actual text of the Assignment remains the same. This Agreement
constitutes the entire understanding and Agreement of the Parties regarding the subject matter of this
Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties have signed this Agreement by and through the signatures
of their respective authorized representative(s) as follow:
CITY:
CITY OF DUBLIN,
a California municipal corporation
By:
Name: Linda Smith
Title: City Manager
ATTEST:
By:
Name: Marsha Moore
Title: City Clerk
APPROVED AS TO FORM:
By:
Name:
Title: City Attorney
DEVELOPER:
Dublin Crossing, LLC,
a Delaware limited liability company
By: BrookCal Dublin, LLC, Member
a Delaware Limited Liability Company
By:__________________________
Name: Josh Roden
Title: President
By:__________________________
Name: Gonzalo Rodriguez
Title: Vice President
By: SPIC Dublin, LLC,
a Delaware Limited Liability Company
Standard Pacific Investment, LLC, Sole Member
a Delaware Limited Liability Company
(as successor-in-interest by conversion to Standard
Pacific Investment Corp)
By:__________________________
Name: Bridgit Koller
Title: Vice President
ASSOCIATION:
Boulevard Master Owners Association
a California nonprofit mutual benefit corporation
By:__________________________
Name: Evette Pope
Title: General Manager
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EXHIBIT A
Boulevard Public Art Master Plan
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Art Master Plan
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1TABLE OF CONTENTS |
TABLE OF CONTENTS
Introduction.....................................................2
City Goals........................................................3
Boulevard Vision...............................................4
The Art Selection Process....................................5
Developer Financial Obligation..........................6
Site Plan...........................................................7
Locations.........................................................8
The Office Pocket Park.......................................9
Dimensions...........................................10
Rendering........................................11
The Gallery Pocket Park.....................................12
Dimensions...........................................13
Rec Center&Ped Corridor.................................14
Dimensions...........................................15
The Town Square Pocket Park.............................16
Dimensions...........................................17
Culvert Plaza..................................................18
Dimensions.....................................19
Horizon Parkway..............................................20
Dimensions....................................21
Veteran’s Memorial - 30-acre Public Park.............22
Artists................................................................23
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2
INTRODUCTION
Public art is not an art “form.” Its size can be huge or small. It can tower
50 high or call attention to the paving beneath your feet. Its shape can be abstract
or realistic or both, and it may be cast, carved, built, assembled, or painted. It can be
site-specific or stand in contrast to its surroundings. What distinguishes public art is
the unique association of how it is made, where it is, and what it means. Public art
can express community values, enhance our environment, transform a landscape,
heighten our awareness, or question our assumptions. Placed in public sites, this art
is there for everyone, a form of collective community expression. Public
art is a reflection of how we see the world – the artist’s response to our time
and place combined with our own sense of who we are.
INTRODUCTION |
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3
CITY GOALS
PUBLIC ART PROGRAM GOALS
Establish and enhance pedestrian friendly public spaces such as parks, plazas, path-
ways, public restrooms, parking lots and other places where people gather.
Strengthen the unique character of individual neighborhoods, business districts
and transit corridors with artwork that relates to the site’s purpose, history and nat-
ural environment.
Provide numerous opportunities for Dublin’s citizens to gain a deeper understand-
ing and appreciation for visual art.
Enhance the City’s identity and regional image by actively promoting Dublin’s unique
public art collection.
Encourage the creation of artworks that are integrated into the City’s built environ-
ment, including signage, gateways, sidewalks, bus stops, bollards, parking structures,
crosswalks and other public amenities.
Ensure community support for the artworks through public participation in artist
selection and artwork development.
CITY GOALS |
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4
BOULEVARD VISION
Boulevard is a master-planned community buzzing with life in the heart of Dublin
and walking distance to the Dublin/Pleasanton BART Station. It is also conveniently
located near local eateries, shopping, entertainment and the 580/680 freeway inter-
change.
Our vision is for Boulevard to be Northern California’s destination for vibrant living.
Boulevard will be an active, urban community comprised of single-family homes,
penthouses, flats, townhomes, and condos. Here, residents will connect and mingle
in dynamic social spaces, pedestrian-friendly streets, a walk/bike trail, a Recreation
Center with Co-Working Spaces, and 15 uniquely themed neighborhood parks also
known as the following Pocket Parks:
• The Lounge • The Kitchen • The Retreat
• The Well • The Gym • The Garden
• The Playground • The Town Square • The Dog House
• The Office • The Lawn • The Hangout
• The Library • The Track • The Gallery
Our Public Art locations were selected based upon the best pedestrian interface po-
tential and highest visibility. Nestled throughout the community, the public art pieces
will aspire to add visual interest as well as dialog in bringing people together. The Bike
Rack Art is both form and functional with the hope to encourage cycling throughout
the community which may foster a greener and healthier lifestyle.
Our master plan includes an intended donation to the City of Dublin toward the Vet-
eran’s Memorial Artwork, currently planned in our Community Park. This donation
will require future City Council approval.
BOULEVARD VISION |
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5PUBLIC ART SELECTION PROCESS |
PUBLIC ART SELECTION
PROCESS
DEVELOPER SELECTION OF ARTISTS
The Developer Selection Committee reviews the qualifications of up to 20 artists.
PUBLIC REVIEW OF DESIGNS
An outreach meeting will be convened at a local and public event that allows for the
public to review and comment on the concepts in detail, sample renderings and ma-
quette.
HERITAGE AND CULTURAL ARTS COMMISSION MEETING
The Heritage and Cultural Arts Commission reviews the outcome of the Public Re-
view meeting. The Heritage and Cultural Arts Commission reviews projects based
on whether or not they meet the goals and criteria identified in the Public Art Master
Plan. Artists are required to attend the Heritage and Cultural Arts Commission Meet-
ing and are expected to briefly present their concept, material samples renderings
and maquette. The Heritage and Cultural Arts Commission will make a recommenda-
tion to the City Council to accept one design.
CITY COUNCIL REVIEW
City Council will review the proposed design recommended by the Heritage and Cul-
tural Arts Commission. The Artist is required to attend the City Council meeting. The
Artist will be notified in advance if City Council requests a presentation. In many cas-
es, the Artists is present only to answer questions from the City Council regarding the
proposal. The City Council approves design proposals and artist contracts.
ADDITIONAL LOCATIONS
With any remaining funds available, the developer may opt to add Public Art in the
additional locations or pay the remaining amount in the form of an in-lieu fee to the
City after the completion of the six approved locations.
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6DEVELOPER FINANCIAL OBLIGATION
DEVELOPER FINANCIAL
OBLIGATION
PUBLIC ART DEVELOPER FINANCIAL OBLIGATION
PHASE BUILDING VALUATION PUBLIC ART VALUATION
(0.5% of Building Valuation)
N1-N6 1 $139,273,068.00 $696,365.34
N7-N18 2-3 $225,035,646.00 $1,125,178.23
N19-N24 4-5 $179,771,535.00 $898,857.68
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7SITE PLAN |
BOULEVARD DUBLIN, CALI FORNIA AUGUST 2017
P UBLIC ART MASTE R PLAN
0 100 200 400
Option 1
Option 2
Benches and Bike Racks at Rec Center Plaza
Tall Statement Art at Pedestrian Corridor
Tall Statement Art at Pocket Park The Gallery
Shade Structure and Bike Racks at Pocket Park The Office
Veteran’s Memorial in 30-acre Public Park
Tall Statement Art at Corner of Horizon Parkway and Scarlett
Tall Statement Art at Culvert Plaza
Bike Racks at Pocket Park The Town Square
BOULEVARD DUBLIN, CALI FORNIA AUGUST 2017
P UBLIC ART MASTE R PLAN
0 100 200 400
Option 1
Option 2
Benches and Bike Racks at Rec Center Plaza
Tall Statement Art at Pedestrian Corridor
Tall Statement Art at Pocket Park The Gallery
Shade Structure and Bike Racks at Pocket Park The Office
Veteran’s Memorial in 30-acre Public Park
Tall Statement Art at Corner of Horizon Parkway and Scarlett
Tall Statement Art at Culvert Plaza
Bike Racks at Pocket Park The Town Square
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8
LOCATIONS
LOCATIONS |
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9STERLING STREETNUGGET WAY
THE OFFICE-POCKET PARK
OVERALL
THE OFFICE POCKET PARK|
Public Art - Trellis
Public Art - Bike Racks
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TRD
1
0
'
-
0
"27'PATH: P:\DUBLIN\BOULEVARD NEIGHBORHOODS\ACAD\NEIGH 4\2B\DG-L-HUNTINGTON 2B.DWGPLOT DATE: 8/22/2017 11:26 AM1"=20'-0"
10' 20'40'0
of
DRAWN:
PROJECT NUMBER:
DATE:
SCALE:
CHECK:
2671 CROW CANYON RD. SAN RAMON, CA 94583
DATE:ISSUE: DESCRIPTION:
GATE
A S O CIATE SS
MM
MNO
07/27/2017
05/22/20171ST CD SUBMITTAL1
CALIFORNIA
DUBLIN
BOULEVARD
HUNTINGTON
N4 PHASE 2
0"12"1"2"
S
2ND CD SUBMITTAL2 07/27/2017
TRACT 8375
PLAN A
ENLARGEMENT
5 (2)
L1.2
ENLARGEMENT PLAN A - SCALE 1"=10'-0"STERLING STREETNUGGET WAY
10DIMENSIONS |
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11THE OFFICE POCKET PARK - RENDERING |
Public Art - Trellis
Public Art - Bike Racks
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12
Sidewalk
Boulevard Accent Paving
Park Entry Monumentation
Street Tree
ARNOLD ROADTrees in Tree Grates CANALAC Access Road
Public Art
Seating
PSE (Public Service Easement)
Prop Boundary
THE GALLERY-POCKET PARK
OVERALL
THE GALLERY POCKET PARK |
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TRDFUTURE LOCATION
OF PUBLIC ART
SEE ARNOLD ROAD
PLANS FOR
STREETSCAPE
IMPROVEMENTS
BIKE RACK A, TYP. OF (3)
INSTALLATION OF BIKE
RACKS SHALL BE THE CITY
OF DUBLIN STANDARD
INSTALLATION AS
LIGHT POLE, S.E.D.
INTEGRAL COLOR PEDESTRIAN
CONCRETE PAVING TYP.
PA
PA 30'-10"40'-5"35'-9"13DIMENSIONS |
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14
REC CENTER&PED CORRIDOR
OVERALL
Public Art - Benches
Public Art
Bike Racks
Public Art - Tall
Statement Piece
REC CENTER & PED CORRIDOR |
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15
UP
DIMENSIONS |
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16
THE TOWN SQUARE-POCKET PARK
Public Art Installation
OVERALL
THE LOUNGE POCKET PARK |
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TRDINEGRAL COLOR
PEDESTRIAN
CONCRETE PAVING,
TYP.
1
L4.2
ENTRY FOUNTAIN
FEATURE
1,2,3
L4.6
INEGRAL COLOR
PEDESTRIAN CONCRETE PAVING, TYP.
1
L4.2
3'H STUCCO WALL 6
L4.3
SOMA STONES
PA
PA
PA
BIKE RACK B, TYP. OF (3)
INSTALLATION OF BIKE
RACKS SHALL BE THE CITY
OF DUBLIN STANDARD
INSTALLATION AS
INTENDED IN THE
BICYCLE AND PEDESTRIAN
DESIGN GUIDELINES OR
AS APPROVED BY THE
TRAFFIC ENGINEER.29'-3"11'-8"26'-3"18'4'-3"DUBLIN BOULEVARD 17DIMENSIONS |
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18
HORIZON PARKW
A
Y
CULVERT PLAZA
OVERALL
CULVERT PLAZA|
Public Art
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C25 STERLING ST 55
56 CCC C
19DIMENSIONS |
6’85’ROW - Art must be installed
outside of public ROW.
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HORIZON PARKW
A
Y
HORIZON PARWAY
OVERALL
HORIZON PARKWAY
Public ArtSCARLETT DRIVEAttachment 2
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LOWVOLTAGE
21DIMENSIONS |
6
8
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22
VETERAN’S MEMORIAL
VETERANS MEMORIAL - 30 ACRE PUBLIC PARK |
Permanent Public Art
Temporary Public Art
Option 1
Option 2
Option 1
Option 2
This is a separate City project to which the developer will be contributing funds in
the amount of $200,000.
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BH022550_BoulevardGalleryNightArtistsBio_FNL2 | 24”w x 36”h | Artist Bio
Kevin Box is recognized for his ability to
capture the delicate nature of paper in
museum-quality metal sculpture. Box’s work
has received numerous awards and is held
in prominent collections worldwide. In 2015,
his collaborative work was recognized with
the Award of Excellence by the Structural
Engineers Association of California for “Hero’s
Horse,” a 25-foot-tall, fabricated steel Pegasus
that was also featured on the cover of Art
Business News. Box works closely with his
wife, Jennifer, at their home and studio in
Santa Fe, New Mexico. Together, they created
“Origami in the Garden,” a monumental
outdoor sculpture exhibition that has been
traveling to botanical gardens and museums
throughout North America since 2014.
Box continues to push the boundaries of
sculptural processes. This approach, combined
with his fearless vision for collaboration, will
continue to define Box’s contribution to the
history of art in the 21st century.
KEVIN BOX STUDIO
Santa Fe, New Mexico
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BH022550_BoulevardGalleryNightArtistsBio_FNL2 | 24”w x 36”h | Artist Bio
Trained as an artist, blacksmith and metal
fabricator, David Duskin works just north of
San Francisco, CA. He has a B.A. in art and
English literature and an M.F.A. in sculpture.
Building on his formal education and a series
of apprenticeships, Duskin went into business
full-time in 1998. Currently he is working
on both public and private commissions
and teaching grad students once a week at
the Academy of Art University in San Francisco.
While David’s work includes both traditional
sculpture and architectural metalwork, his
focus centers on conceptually driven art in
which the work and the site collaborate to
bring a more potent experience to the viewer.
Some of these pieces are clearly sculpture,
while others blur the line between the fine and
applied arts. However, in addition to specific
conceptual goals, there is always an intention
to find new ways to bind location, the object
and the artist/viewer in a single web.
DAVID DUSKIN
Petaluma, California
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BH022550_BoulevardGalleryNightArtistsBio_FNL2 | 24”w x 36”h | Artist Bio
Tyler van der Stappen is a multidisciplinary
artist, designer, sculptor, painter, photographer
and musician who holds a B.F.A. from
Washington State University. He earned the
distinguished honor of receiving one of only 38
spots awarded at the National Undergraduate
Student Art Show his senior year. He draws
much of his inspiration from the natural world,
music, sounds, communication and emerging
technologies. When he isn’t working, you
can find him drawing, learning and studying,
writing, spending time with his family and
friends, getting into some sort of great
outdoor adventure in his home state of Utah
or out on the road.
TYLER VAN DER STAPPEN
Ogden, Utah
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BH022550_BoulevardGalleryNightArtistsBio_FNL2 | 24”w x 36”h | Artist Renderings
Iron Horses
KEVIN BOX STUDIO
Rising Peace
Rising Peace
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BH022550_BoulevardGalleryNightArtistsBio_FNL2 | 24”w x 36”h | Artist Renderings
DAVID DUSKIN
INFLATED COR-TEN STEEL
external planes are convex due to inflating process
internal textured planes are straight for contrast
measures roughly 20 ft tall x 13 ft x 9 ft
passage between the two forms is 3 ft minimum
hand-carved vertical engraving
welded and brazed stainless and or bronze application
BOULEVARD SCULPTURE
Boulevard Public Art Project, Brookfield Residential, Dublin CA
R UNNING WITH STICKS
S I N C E 1 9 9 8
w w w . D a v i d D u s k i n . c o m d a v i d D a v i d D u s k i n . c o m 4 1 5 2 6 0 8 6 3 0 2 2 2 F a i r S t r e e t P e t a l u m a C A 9 4 9 5 2@
INFLATED COR-TEN STEEL
external planes are convex due to inflating process
internal textured planes are straight for contrast
measures roughly 20 ft tall x 13 ft x 9 ft
passage between the two forms is 3 ft minimum
hand-carved vertical engraving
welded and brazed stainless and or bronze application
BOULEVARD SCULPTURE
Boulevard Public Art Project, Brookfield Residential, Dublin CA
R UNNING WITH STICKS
S I N C E 1 9 9 8
w w w . D a v i d D u s k i n . c o m d a v i d D a v i d D u s k i n . c o m 4 1 5 2 6 0 8 6 3 0 2 2 2 F a i r S t r e e t P e t a l u m a C A 9 4 9 5 2@
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BH022550_BoulevardGalleryNightArtistsBio_FNL2 | 24”w x 36”h | Artist Renderings
TYLER VAN DER STAPPEN
“Cork Wine Key” Bike Racks
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EXHIBIT B
Public Art Locations
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7SITE PLAN |
Bike Rack at Rec Center Plaza (Cork Screw - Van Der Stappen)
Tall Statement Art at Pedestrian Corridor (Rising Peace - Box)
Tall Statement Art at Pocket Park The Gallery (Each Other - Duskin)
Tall Statement Art at Corner of Horizon Pkwy and Scarlett (Iron Horses - Box)
Veteran’s Memorial in 30-acre Public Park (City Managed Public Art Project)
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EXHIBIT C
Artist Agreements
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Agreement for Services - Public Art Page 1 of 13
AGREEMENT FOR SERVICES
Public Art Design, Fabrication and Installation
This Agreement is dated this 28th day of April, 2022, by and between Dublin Crossing, LLC
(hereinafter referred to as the "Client"), and BoxStudio LLC (hereinafter referred to as the "Artist").
RECITALS
A. The Client has requested the Artist to design, fabricate, and install public art at The
Boulevard Master Plan, on Scarlett Drive & Horizon Parkway, Dublin, CA 94568
B. The Artist is qualified and experienced to provide such services.
NOW, THEREFORE, the Client and the Artist, for the consideration hereinafter set forth, mutually
agree as follows:
1. SCOPE OF WORK. The Artist shall develop the final design of the artwork (see Exhibit A) to
complete all phases of development (including the acquisition of materials, fabrication ) that shall lead
to and include the successful installation of the artwork. Artist shall perform all services as detailed in
the attached "Schedule of Performance and Compensation Schedule," attached hereto as Exhibit
"B."
2. WARRANTIES.
A. Warranty of Title: The Artist warrants that the artwork is original and solely the product of Artist’s
own creative efforts and does not infringe on the rights of any person or entity. Except as
otherwise disclosed in writing to Client, the artwork is unique and original and does not infringe
upon any copyright or the rights of any person.
B. The Artist shall faithfully perform the work required under this agreement in accordance with
standards of care, skill, training, diligence, and judgment provided by highly competent
professionals who perform work of a similar nature to the work described in this agreement. Ar tist
shall assign only competent personnel to perform services pursuant to this agreement.
C. Warranty of workmanship. The artist shall guarantee its work to be free from faults or defects of
material and workmanship for a period of one (1) year after installation and final acceptance of all
work by Client.
D. Warranty of public safety. Artist represents and warrants that the work will not pose a danger to
public health or safety, including through the possibility of misuse, if such misuse is in a manner
that was reasonably foreseeable at any time during the term of this agreement.
E. Warranty of acceptable standard of display and operation. Artist represents and warrants that:
(1) Occasional or minimal cleaning and repair of the work and any associated working parts
and/or equipment will be sufficient to maintain the work within an acceptable standard for
public display.
(2) With general routine cleaning and repair, foreseeable exposure to the elements and general
wear and tear will cause the work to experience only minor repairable damage or
deterioration, and will not cause the work to experience irreparable damage or deterioration
below an acceptable standard of public display, including mold, rust, fracturing, staining,
chipping, tearing, abrading, and/or peeling.
F. Manufacturer’s W arranty. To the extent the work incorporates products covered by a
manufacturers’ warranty, artist shall assign, hereby assigns, and shall provide copies of, such
warranties to Client.
G. Warranties provided herein shall inure to the benefit of the ultimate owner(s) of the subject work
including Boulevard Master Owners Association, a California nonprofit mutual benefit corporation
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Agreement for Services - Public Art Page 2 of 13
(hereinafter “Master Association”). Master Association is an intended beneficiary of this
Agreement.
3. COORDINATION. Artist shall personally participate in said project to coordinate all activities
of the project. The Client authorizes Josh Roden [Client Authorized Representative] to act on
behalf of the Client in accordance with the terms of this Agreement, and to take all actions
authorized or required to be taken by the Client.
4. COMPENSATION.
A. Client shall pay Artist as compensation for such services and conveyance of title to the
completed work as set forth in the "Schedule of Performance and Compensation
Schedule" attached hereto as Exhibit "B" and incorporated herein by reference. Client shall
pay Artist the amount identified under the "Payment Amount" column after each
corresponding phase of work has been completed to the satisfaction of the Client. Artist
shall complete all the services required under this Agreement for a total payment from the
Client in an amount not to exceed four-hundred thirty thousand hour hundred thirty-four
dollars ($430,434.00)
B. Upon completion of each Phase as described on Exhibit "B", Artist shall submit invoices for
work performed. Client shall make payment within thirty (30) days after approval of the
invoice by Client.
5. TERM. The term of this Agreement shall be from the date of its execution until the completion of
the work contemplated by this Agreement and its final installation unless terminated earlier as
provided herein.
6. NOTICES. Any notice (including any demand, request, consent, approval , or communication
that any party desires or is required to give to any other party or any other person under this
Agreement) shall be in writing and either served personally or sent by prepaid, certified or
registered mail, return receipt requested. Any such notice shall be addressed as follows:
TO Client: Dublin Crossing, LLC
Josh Roden, President
12657 Alcosta Blvd, Suite 250, San Ramon, CA 94583
925.743.8000
Amanda.Stone@brookfieldrp.com
TO ARTIST: BoxStudio LLC
3453 State Hwy 14 N, Cerrillos New Mexico 87010
505.471.4688
jennifer@outsidetheboxstudio.com
Any party may change its address by notifying the other parties of the change of address. All
notices shall be effective on the date of actual delivery, or the date set forth on the return receipt
of a certified or registered mail delivery.
7. AMENDMENT OF SCOPE OF WORK. Client may request an amendment to the Scope of Work
within the Agreement by written notification to the Artist. In such event, the compensation and
time of performance shall be subject to renegotiation upon written demand of either party to the
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Agreement for Services - Public Art Page 3 of 13
Agreement. The Artist may request an adjustment to the contract price or time for performance
only if the Artist establishes to the satisfaction of the Client's Authorized Representative that
there was an unforeseen and unforeseeable condition that was outside of the responsibility or
control of the Artist. Failure of the Artist to secure Client's written authorization for extra or
changed work shall constitute a waiver of all right to adjustment in the contract price or time
due.
8. CLIENT'S RIGHT TO TERMINATE/SUSPEND CONTRACT. At any time and for any or no
reason, Client shall have the right to terminate this Agreement, and pay the Artist (as full
payment for all services satisfactorily rendered and expenses incurred hereunder) a
proportionate amount of the total fees specified in this Agreement equal to the ratio that the
services satisfactorily rendered by the Artist at the time of such termination bears to the t otal
services otherwise required to be performed under the Agreement. Notwithstanding the above,
Artist shall not be relieved from liability to Client for damages sustained by virtue of any breach of
this Agreement by Artist, whether or not the Agreement was terminated for convenience or cause,
and Client may withhold payments not yet made to Artist for the purpose of setoff until such time
as the exact amount of damages due Client from Artist is determined. If Client terminates without
cause, Client shall have no right of use to any of Artist's work, e.g. studies, preliminary drawings,
computations, specifications, etc., without further agreement with Artist.
9. CORRECTION OF WORK. The performance of services or acceptance of information furnished by
Artist shall not relieve the Artist from obligation to correct any defective, inaccurate or incomplete
work for which Artist is responsible under this Agreement that is subsequently discovered, and all
such work shall be remedied by the Artist on demand without cost to the Client.
10. DELAYS AND EXTENSIONS. Time is of the essence concerning performance of this Agreement;
however, the Artist will be granted time extensions for delays beyond the Artist's control. Time
extensions will be equal to the length of the delay or as otherwise agreed upon between the Artist
and the Client.
11. INSURANCE.
A. Prior to commencing the work that is the subject of this agreement, and throughout the period of
this Agreement, and Artist shall obtain and maintain the following policies of insurance, in a
form and from insurance companies reasonably acceptable to Client, and shall require any
subcontractors to obtain and maintain equivalent coverage: Comprehensive or Commercial
General Liability Insurance with limits of no less than $1,000,000.00 per occurrence, with
insurers with a Bests’ rating of no less than A:VII.
B. Prior to commencing the work that is the subject of this agreement, Artist shall provide Client with
certificates of insurance evidencing the above coverage, and upon request by Client shall
provide certified copies of all required insurance policies maintained by Artist.
C. Prior to commencing the work that is the subject of this agreement, Artist shall obtain and deliver
to Client an additional insured endorsement naming Client, City of Dublin, and Master
Association as additional insureds, as primary insurance, under Artist’s Commercial General
Liability policy.
D. If Artist fails to procure, maintain or pay for the required insurance, Client shall have the right
(but not the obligation) to secure the same in the name of and for the account of Artist, in
which event, Artist shall pay the cost thereof and shall furnish upon demand, all information
that may be required to procure such insurance.
E. Upon receipt of any notice of such insurance carrier’s cancellation or alteration, Artist shall
within ten (10) calendar days procure other policies of insurance (or make payment of premium
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if that was the reason for such notice), similar in all respects to the policy or policies about to
expire, be canceled or altered.
12. STANDARD OF CARE. The Client relies upon the professional ability of Artist and representations
regarding the type of work to be performed as a material inducement to entering into this Agreement.
Artist agrees to use reasonable care and diligence in rendering services under this Agreement. Artist
is responsible for the work of all employees, subcontractors, and agents, and the negligence of one of
them, if not adequately remedied by Artist, shall be conclusively deemed the negligence of Artist.
Artist agrees that the acceptance of his work by Client shall not operate as a waiver or release of said
obligation of Artist. The absence, omission, or failure to include in this Agreement, items which are
normally considered to be a part of generally accepted professional procedure or which involve
specialized professional judgment appropriate to the type of work to be performed under this
Agreement shall not be used as a basis for submission of inadequate work or incomplete
perform ance.
13. COVENANT AGAINST CONTINGENT FEES. The Artist warrants that he has not employed or
retained any company or person, other than a bona fide employee working for the Artist, to
solicit or secure this Agreement, and that he has not paid or agreed to pay any company or
person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift,
or any other consideration, contingent upon or resulting from the award or making this
Agreement. For breach or violation of this warranty, the Client shall have the right to annul this
Agreement without liability or, in its discretion to deduct from the Agreement price or
consideration, or otherwise recover, the full amount of such fee, commission, percentage,
brokerage fee, gift, or contingent fee.
14. LIENS AND PAYMENTS. Artist shall convey title to the work free from all liens. Artist, independent of
Client’s payment obligations hereunder, shall timely compensate its subcontractors, employees and
suppliers in connection with the services performed hereunder, shall take necessary actions to
prevent any lien upon the property that is the subject of Artist’s services, and shall defend, indemnify
and hold harmless Client against any loss or expense arising out of any labor code violation, or claim
of lien from Artist, its subcontractors, employees, or suppliers.
15. CONFLICT OF INTEREST. Artist covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which would conflict in any manner or degree with the
performance of its services hereunder . Artist further covenants that in the performance of this
Agreement, no person having any such interest shall be employed.
16. DEFAULT. If Artist fails to perform any obligation under this Agreement, within the time and in
the manner herein provided or otherwise violates any term of this Agreement, Client may
terminate this Agreement by giving Artist written notice of such termination, stating the reason
for such termination. In such event, Artist shall be entitled to receive (as full payment for all
services satisfactorily rendered and expenses incurred hereunder) a proportionate amount of the
total fees specified in this Agreement equal to the ratio that the services satisfactorily rendered
by the Artist bear to the total services otherwise required to be performed under th e Agreement.
Notwithstanding the above, Artist shall not be relieved from liability to Client for damages
sustained by virtue of any breach of this Agreement by Artist, whether or not the Agreement was
terminated for convenience or cause, and Client may withhold payments not yet made to Artist
for the purpose of setoff until such time as the exact amount of damages due Client from Artis t is
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determined.
17. INDEPENDENT CONTRACTOR. The parties intend that Artist, in performing the services
specified herein, shall act as an independent contractor and shall have control of the work and
the manner in which it is performed. Artist is not to be considered an agent or employee of the
Client and is not entitled to participate in any pension plan, insurance, bonus or similar benefits
Client provides its employees. In the event Client exercises its right to terminate this Agreement,
Artist expressly agrees that he/she shall have no recourse o r right of appeal under rules,
regulations, ordinances or laws applicable to employees.
18. EMPLOYMENT PRACTICES. Artist shall not discriminate in its performance under the
Agreement either directly or indirectly on the grounds of race, color, religion, sex, age,
national origin, or other prohibited grounds in its employment practices, and shall take
affirmative steps to ensure that applicants are employed and employees are treated during
employment without regard to race, color, religion, sex , age, national origin, or other
prohibited grounds.
19. COMPLIANCE WITH LAW .
A. Artist shall comply with all applicable federal, state and local laws, rules and regulations
applicable to the Artist and his/her work hereunder and shall ensure that all subcontractors
do the same. Artist represents and warrants to Client that Artist has and will keep in effect
during the term of this Agreement all licenses, qualifications and approvals of whatsoever
nature, which are legally required for Artist to practice Artist's profession and to do the
work hereunder.
B. Artist agrees to abide by the requirements of the Immigration and Control Reform Act
pertaining to assuring that all newly -hired employees of Artist performing any services under
this Agreement have a legal right to work in t he United States of America, that all required
documentation of such right to work is inspected, and that INS Form 1 -9 (as it may be
amended from time to time) is completed and on file for each employee. Artist shall make
the required documentation availab le upon request to Client for inspection.
20. WORK PRODUCT AND ACCEPTANCE OF WORK
A. Upon the Client's acceptance of the work required by this Agreement as complete the Client
or Master Association shall have no obligation to display or maintain any physical works or
art or projects constructed using Artist's conceptual design for any particular time and
within the scope of its legal authority . Client and Master Association may in their sole
discretion remove, relocate, restore, modify or destroy the physical works or art or projects
constructed using Artist's conceptual design at any time after the completion of the project.
Client and Master Association owe no obligation to Artist to maintain the work.
B. As to the Client, the Master Association and their agents, employees and contractors, the
Artist hereby waives any and all rights he may have to prevent or cause the prevention of
the removal, relocation or destruction of the project once constructed; or to seek other
relief in connection with any such removal or destruction, pursuant to Title 17, Section 106A
of the United States Code, or pursuant to Section 987 of the California Civil Code as such
sections now exist or may hereafter be amended .
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C. Within the scope of its legal authority, Client and Master Association shall have the right to
make photographs, drawings, or other two-dimensional reproductions of the work and the
conceptual design without prior consent of the Artist if used solely for non -commercial
purposes, advertising, descriptive br ochures, and similar purposes.
D. Final Acceptance. Artist shall advise client in writing when Artist has completed all obligations,
services, and deliverables under this agreement. The work shall not be officially accepted by
the Client unless the City of Dublin has also issued a determination of final acceptance. Client
shall make a good faith effort to promptly request a determination as to final acceptance from
City.
21. OWNERSHIP AND RISK OF LOSS. Except in the case of early termination of this agreement, title
to the artwork shall transfer from Artist to Client or Master Association upon Client’s final
acceptance of the work. Title transfer shall be self -executing upon Client’s final acceptance of the
work. Artist will cooperate in providing Client or Master Association any title transfer documents
that Client or Master Association may request or require during or after the term of this agreement.
The risk of loss or damage to the artwork shall be borne solely by Artist until delivery of the artwork
to the property. Artist shall take steps to protect the artwork from loss or damage until final
acceptance by Client.
22. RIGHT TO ADEQUATE ASSURANCE OF PERFORMANCE. Each party to this Agreement
undertakes the obligation that the other's expectation of receiving due performance will not be
impaired. When reasonable grounds for insecurity arises with respect to the performance of
either party, the other may in writing demand adequate assurance of due performance, and until it
receives such assurance, may, if reasonable, suspend any performance for which the agreed
return has not been received. "Reasonable" includes not only the conduct of a party with respect to
other agreements with parties to this Agreement or others. After receipt of a justified demand,
failure to provide within a reasonable time, but not exceed fifteen (15) days, such assurance of due
performance as is adequate under the circumstances of the particular case is a repudiation of this
Agreement. Acceptance of any improper delivery, service or payment does not prejudice the
aggrieved party's right to demand adequate assurance of future performance.
23. CONFIDENTIALITY. Artist shall treat all information obtained from Client in the performance of this
Agreement as confidential and proprietary to Client. Artist shall treat all records and work product
prepared or maintained by Artist in the performance of this Agreement as confidential. Artist agrees
that it will not use any information obtained because of the performance of work for any purpose other
than fulfillment of Artist's scope of work. Artist will not disclose any information prepared for Client, or
obtained from Client or obtained as a consequence of the performance of work, to any person other
than Client, or its own employees, agents or subcontractors, who have a need for the information for
the performance of work under this Agreement unless such disclosure is specifically authorized in
writing by the Client. Artist shall advise Client of any request for disclosure of information or of any
actual or potential disclosure of information. Artist's obligations under this paragraph shall survive the
termination of this Agreement.
24. ACCIDENT REPORT. If any damage (including death, personal injury, or property damage) occurs in
connection with the performance of this Agreement, Artist shall promptly submit to the Client a
written notice of such accident with the following information:
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A. Name and address of the injured or deceased person(s);
B. Name and address of any witness;
C. Name and address of Artist's insurance company; and
D. A detailed description of the damage and whether any Client property was involved.
25. ELECTRONIC COMMUNICATIONS. During the course of this Agreement, communications may
occur through sending, receiving or exchanging electronic versions of documents and e-mails using
commercially available computer software and Internet access. Artist and the Client acknowledge
that the Internet is occasionally victimized by the creation and dissemination of so-called viruses or
similar destructive electronic programs. Artist and the Client view the issues raised by these viruses
seriously and have invested in document and e-mail scanning software that identify and reject files
containing known viruses. Artist agrees to update its system with the software vendor's most current
releases at regular intervals. Because of the virus scanning software, the respective computer
systems of the parties may occasionally reject a communication. The Parties acknowledge that this
occurrence is to be expected as part of the ordinary course of business . Because the virus
protection industry is generally one or two steps behind new viruses, neither party can guarantee
that, its respective communications and documents will be virus free. Occasionally, a Virus will
escape and go undetected as it is passed from system to system. Although each party will use
all reasonable efforts to assure that its communications are viruses free, neither party warrants
that its doc uments will be virus free. Each party agrees to advise the other if it discovers a virus
in its respective system that may have been communicated to the other party.
26. ELECTRONIC OR MAGNETIC DATA. If the Scope of Work requires that Artist provide
documents in electronic or magnetic formats, they shall be provided in a manipulative form.
Client recognizes that electronic or magnetic data and its transmission may be damaged, may
develop inaccuracies during use, and may contain viruses or other destructive programs, and
that software and hardware operating systems may become obsolete. Artist shall not be liable
for any loss of use, profit, or any other damages arising from Client's reuse, misuse,
modification, or misinterpretation of the data submitted in electronic or magnetic form. Nothing
contained in this paragraph shall affect the indemnification or standard of care required
hereunder for Artist with respect to Artist’s work and work products delivered in hard copy.
27. GENERAL PROVISIONS.
A. Headings. The heading titles for each paragraph of this Agreement are included only as a
guide to the contents and are not to be considered as controlling, enlarging, or restricting
the interpretation of the Agreement.
B. Severability . If any term of this Agreement (including any phrase, provision, covenant, or
condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the
Agreement shall be construed as not containing that term, and the remainder of this
Agreement shall remain in full force and effect; provided, however, this paragraph shall not
be applied to the extent that it would result in a frustration of the parties' intent under this
Agreement.
C. Governing Law. Jurisdiction. In addition, Venue. The interpretation, validity, and
enforcement of this Agreement shall be governed and interpreted in accordance with the
laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this
Agreement shall be filed and heard in a court of competent jurisdiction in the County of
Alameda.
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D. Attorney's Fees. In the event any legal action is commenced to enforce or interpret this
Agreement, the prevailing party is entitled to reasonable attorney's fees, costs, and expenses
incurred, whether or not such action proceeds to judgment.
E. Indemnification. Artist will indemnify, hold harmless, and defend Client (including its managers,
officers, directors, employees, agents, affiliates, successors, and permitted assigns
(collectively , "Indemnified Party") against all losses, damages, liabilities, deficiencies, claims,
actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of
whatever kind, including reasonable attorney’s fees, that are incurred by Indemnified
Party/awarded against Indemnified Party (collectively, "Losses"), arising out of any: a)
material breach or non-fulfillment of any material representation, warranty, or covenant in this
Agreement, (b) any negligent or more culpable act or omission of Artist [or its Personnel] in
connection with the performance of its obligations under this Agreement; or (c) any bodily
injury, death of any person, or damage to real or tangible personal property caused by the
acts or omissions of the Artist (including injury to Artist's personnel) or (d) the failure of Artist
to materially comply with any applicable federal, state, or local laws, regulations, or codes in
the performance of its obligations under this Agreement.
F. Assignment and Delegation. This Agreement, and any portion thereof, shall not be assigned
or transferred, nor shall any of the Artist's duties be delegated without the written consent of
Client. Any attempt to assign or delegate this Agreement without the written consent of the
Client shall be void and of no force or effect. Consent by the Client to one assignment shall
not be deemed consent to any subsequent assignment.
G. Modifications. This Agreement may not be modified orally or in any manner other than by
an agreement in writing signed by both parties.
H. Waivers. Waiver of a breach or default under this Agreement shall not constitute a
continuing waiver or a waiver of a subsequent breach of the same or any other provision
of this Agreement.
I. Time. Time is of the essence in carrying out the duties hereunder.
J. Entire Agreement. This Agreement, including all documents incorporated herein by
reference, comprises the entire integrated understanding between the parties concerning
the services described herein. This Agreement supersedes all prior negotiations,
agreements, and underst andings regarding this matter, whether written or oral. The
documents incorporated by reference into this Agreement are complementary; what is
called for in one is binding as if called for in all.
K. Each Party's Role in Drafting the Agreement. Each party to this Agreement has had an
opportunity to review the Agreement, confer with legal counsel regarding the meaning of the
Agreement, and negotiate revisions to the Agreement. Accordingly, neither party shall rely
upon Civil Code Section 1654 in order to interpret any uncertainty in the meaning of the
Agreement.
L. Signatures. The individuals executing this Agreement represent and warrant that they have
the right, power, legal capacity, and authority to enter into and to execute this Agreement
on behalf of the respective legal entities of the Artist and the Client.
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28. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day
and year first above written.
Dublin Crossing, LLC BoxStudio LLC
By: By: _________________________
Print Name: _________ Print Name: __________________
Title: ___ Title: ____
Date: _____________ Date: _______
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5/11/2022
Jennifer Box
Executive Director
Gonzalo Rodriguez
VP, Land & Planning
5/11/2022
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EXHIBIT A
Project Description
Project Description:
“IRONHORSES” by Kevin Box
Powder coated and rusted, fabricated steel
Horses are planned to be 20’, 18’ and 12’. Final heights to be determined based on material costs at
the time of fabrication.
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Artist's Responsibilities :
The Artist will complete the following tasks:
Attend a site visit; meet with client and the design team, walk-through the existing structure.
Review architectural drawings and renderings.
Review the structural and functional conditions of the project.
Review the code requirements for the project.
Produce drawings, renderings, videos, budget, and project narrative of initial concepts.
Meet with project team, as needed.
Meet with art conservator or provide art conservator report on materials to be used.
Present a proposal consisting of drawings, renderings, video rendering, budget, project narrative.
Revise the proposal based on feedback from the client and design team.
Fabricate a mock-up or a sample of the proposed artwork.
Document the sample with photos and videos.
Assist client and design team with permitting, inspection and approval process for artwork and its
support structure
Provide all needed design and engineering for support structure, foundation and wind loads.
Procure materials and parts for full-scale artwork.
Fabricate and assemble artwork.
Attend a meeting on-site to coordinate installation and verify that support structure is ready.
Crate and ship the artwork components to the job site.
Unload and store the artwork components at the job site.
Install and anchor the artwork upon the support structure, including any needed crane/rigging.
Document the final installation with photographs and video.
Provide final statement and drawings.
Create a maintenance manual for the artwork.
Comply with [Contractor] site logistics and safety plans.
Attend meeting with the City of Dublin to review logistics and "overhead work."
All install work must be at prevailing wage rate.
Client and Design Team Responsibilities:
The client and design team will complete the following tasks:
Review artist's proposal and provide feedback .
Obtain and assume the cost of any necessary permits, inspections and approvals for artwork from
local authorities.
Client is responsible for all expenses, materials, labor and equipment to prepare the site for the timely
installation of the work. This preparation of the site shall include the cost and construction of the
foundation.
Meet with artist 's installer to coordinate delivery and installation of artwork components.
Provide a place to store the artist's materials during installation.
Process invoices net 30 days from the end of the month .
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EXHIBIT B
Schedule of Performance & Compensation Schedule
The artist will complete the tasks described under Artist’s Responsibilities in this agreement for a total
fee four-hundred thirty thousand hour hundred thirty -four dollars.
Costs
Total Cost (Includes Design, Fabrication, Delivery and Installation) $ 430,434.00
Payment Schedule
1. Due upon acceptance of proposal (50%) $ 215,217.00
2. Due upon notice to proceed with installation (25%) $ 107,608.50
3. Due upon final acceptance of artwork (25%) $ 107,608.50
Schedule
1. Acceptance of proposal Date__________________
2. Notice to proceed with installation Date__________________
3. Completion of installation Date__________________
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ETA July 15, 2023
ETA October 1, 2023
May 11, 2022
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AGREEMENT FOR SERVICES
Public Art Design, Fabrication and Installation
This Agreement is dated this 29th day of October, 2021, by and between Dublin Crossing, LLC
(hereinafter referred to as the "Client"), and BoxStudio LLC (hereinafter referred to as the "Artist").
RECITALS
A. The Client has requested the Artist to design, fabricate, and install public art at The
Boulevard Master Plan, on Sterling Street & Nugget Way, Dublin, CA 94568
B. The Artist is qualified and experienced to provide such services.
NOW, THEREFORE, the Client and the Artist, for the consideration hereinafter set forth, mutually
agree as follows:
1. SCOPE OF WORK. The Artist shall develop the final design of the artwork (see Exhibit A) to
complete all phases of development (including the acquisition of materials, fabrication ) that shall lead
to and include the successful installation of the artwork. Artist shall perform all services as detailed in
the attached "Schedule of Performance and Compensation Schedule," attached hereto as Exhibit
"B."
2. WARRANTIES.
A. Warranty of Title: The Artist warrants that the artwork is original and solely the product of Artist’s
own creative efforts and does not infringe on the rights of any person or entity. Except as
otherwise disclosed in writing to Client, the artwork is unique and original and does not infringe
upon any copyright or the rights of any person.
B. The Artist shall faithfully perform the work required under this agreement in accordance with
standards of care, skill, training, diligence, and judgment provided by highly competent
professionals who perform work of a similar nature to the work described in this agreement. Artist
shall assign only competent personnel to perform services pursuant to this agreement.
C. Warranty of workmanship. The artist shall guarantee its work to be free from faults or defects of
material and workmanship for a period of one (1) year after installation and final acceptance of all
work by Client.
D. Warranty of public safety. Artist represents and warrants that the work will not pose a danger to
public health or safety, including through the possibility of misuse, if such misuse is in a manner
that was reasonably foreseeable at any time during the term of this agreement.
E. Warranty of acceptable standard of display and operation. Artist represents and warrants that:
(1) Occasional or minimal cleaning and repair of the work and any associated working parts
and/or equipment will be sufficient to maintain the work within an acceptable standard for
public display.
(2) With general routine cleaning and repair, foreseeable exposure to the elements and general
wear and tear will cause the work to experience only minor repairable damage or
deterioration, and will not cause the work to experience irreparable damage or deterioration
below an acceptable standard of public display, including mold, rust, fracturing, staining,
chipping, tearing, abrading, and/or peeling.
F. Manufacturer’s W arranty. To the extent the work incorporates products covered by a
manufacturers’ warranty, artist shall assign, hereby assigns, and shall provide copies of, such
warranties to Client.
G. Warranties provided herein shall inure to the benefit of the ultimate owner(s) of the subject work
including Boulevard Master Owners Association, a California nonprofit mutual benefit corporation
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(hereinafter “Master Association”). Master Association is an intended beneficiary of this
Agreement.
3. COORDINATION. Artist shall personally participate in said project to coordinate all activities
of the project. The Client authorizes Josh Roden [Client Authorized Representative] to act on
behalf of the Client in accordance with the terms of this Agreement, and to take all actions
authorized or required to be taken by the Client.
4. COMPENSATION.
A. Client shall pay Artist as compensation for such services and conveyance of title to the
completed work as set forth in the "Schedule of Performance and Compensation
Schedule" attached hereto as Exhibit "B" and incorporated herein by reference. Client shall
pay Artist the amount identified under the "Payment Amount" column after each
corresponding phase of work has been completed to the satisfaction of the Client. Artist
shall complete all the services required under this Agreement for a total payment from the
Client in an amount not to exceed one-hundred seventeen thousand six hundred seven
dollars ($117,607.00)
B. Upon completion of each Phase as described on Exhibit "B", Artist shall submit invoices for
work performed. Client shall make payment within thirty (30) days after approval of the
invoice by Client.
5. TERM. The term of this Agreement shall be from the date of its execution until the completion of
the work contemplated by this Agreement and its final installation unless terminated earlier as
provided herein.
6. NOTICES. Any notice (including any demand, request, consent, approval , or communication
that any party desires or is required to give to any other party or any other person under this
Agreement) shall be in writing and either served personally or sent by prepaid, certified or
registered mail, return receipt requested. Any such notice shall be addressed as follows:
TO Client: Dublin Crossing, LLC
Josh Roden, President
12657 Alcosta Blvd, Suite 250, San Ramon, CA 94583
925.743.8000
Amanda.Stone@brookfieldrp.com
TO ARTIST: BoxStudio LLC
3453 State Hwy 14 N, Cerrillos New Mexico 87010
505.471.4688
jennifer@outsidetheboxstudio.com
Any party may change its address by notifying the other parties of the change of address. All
notices shall be effective on the date of actual delivery, or the date set forth on the return receipt
of a certified or registered mail delivery.
7. AMENDMENT OF SCOPE OF WORK. Client may request an amendment to the Scope of Work
within the Agreement by written notification to the Artist. In such event, the compensation and
time of performance shall be subject to renegotiation upon written demand of either party to the
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Agreement. The Artist may request an adjustment to the contract price or time for performance
only if the Artist establishes to the satisfaction of the Client's Authorized Representative that
there was an unforeseen and unforeseeable condition that was outside of the responsibility or
control of the Artist. Failure of the Artist to secure Client's written authorization for extra or
changed work shall constitute a waiver of all right to adjustment in the contract price or time
due.
8. CLIENT'S RIGHT TO TERMINATE/SUSPEND CONTRACT. At any time and for any or no
reason, Client shall have the right to terminate this Agreement, and pay the Artist (as full
payment for all services satisfactorily rendered and expenses incurred hereunder) a
proportionate amount of the total fees specified in this Agreement equal to the ratio that the
services satisfactorily rendered by the Artist at the time of such termination bears to the t otal
services otherwise required to be performed under the Agreement. Notwithstanding the above,
Artist shall not be relieved from liability to Client for damages sustained by virtue of any breach of
this Agreement by Artist, whether or not the Agreement was terminated for convenience or cause,
and Client may withhold payments not yet made to Artist for the purpose of setoff until such time
as the exact amount of damages due Client from Artist is determined. If Client terminates without
cause, Client shall have no right of use to any of Artist's work, e.g. studies, preliminary drawings,
computations, specifications, etc., without further agreement with Artist.
9. CORRECTION OF WORK. The performance of services or acceptance of information furnished by
Artist shall not relieve the Artist from obligation to correct any defective, inaccurate or incomplete
work for which Artist is responsible under this Agreement that is subsequently discovered, and all
such work shall be remedied by the Artist on demand without cost to the Client.
10. DELAYS AND EXTENSIONS. Time is of the essence concerning performance of this Agreement;
however, the Artist will be granted time extensions for delays beyond the Artist's control. Time
extensions will be equal to the length of the delay or as otherwise agreed upon between the Artist
and the Client.
11. INSURANCE.
A. Prior to commencing the work that is the subject of this agreement, and throughout the period of
this Agreement, and Artist shall obtain and maintain the following policies of insurance, in a
form and from insurance companies reasonably acceptable to Client, and shall require any
subcontractors to obtain and maintain equivalent coverage: Comprehensive or Commercial
General Liability Insurance with limits of no less than $1,000,000.00 per occurrence, with
insurers with a Bests’ rating of no less than A:VII.
B. Prior to commencing the work that is the subject of this agreement, Artist shall provide Client with
certificates of insurance evidencing the above coverage, and upon request by Client shall
provide certified copies of all required insurance policies maintained by Artist.
C. Prior to commencing the work that is the subject of this agreement, Artist shall obtain and deliver
to Client an additional insured endorsement naming Client, City of Dublin, and Master
Association as additional insureds, as primary insurance, under Artist’s Commercial General
Liability policy.
D. If Artist fails to procure, maintain or pay for the required insurance, Client shall have the right
(but not the obligation) to secure the same in the name of and for the account of Artist, in
which event, Artist shall pay the cost thereof and shall furnish upon demand, all information
that may be required to procure such insurance.
E. Upon receipt of any notice of such insurance carrier’s cancellation or alteration, Artist shall
within ten (10) calendar days procure other policies of insurance (or make payment of premium
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if that was the reason for such notice), similar in all respects to the policy or policies about to
expire, be canceled or altered.
12. STANDARD OF CARE. The Client relies upon the professional ability of Artist and representations
regarding the type of work to be performed as a material inducement to entering into this Agreement.
Artist agrees to use reasonable care and diligence in rendering services under this Agreement. Artist
is responsible for the work of all employees, subcontractors, and agents, and the negligence of one of
them, if not adequately remedied by Artist, shall be conclusively deemed the negligence of Artist.
Artist agrees that the acceptance of his work by Client shall not operate as a waiver or release of said
obligation of Artist. The absence, omission, or failure to include in this Agreement, items which are
normally considered to be a part of generally accepted professional procedure or which involve
specialized professional judgment appropriate to the type of work to be performed under this
Agreement shall not be used as a basis for submission of inadequate work or incomplete
perform ance.
13. COVENANT AGAINST CONTINGENT FEES. The Artist warrants that he has not employed or
retained any company or person, other than a bona fide employee working for the Artist, to
solicit or secure this Agreement, and that he has not paid or agreed to pay any company or
person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift,
or any other consideration, contingent upon or resulting from the award or making this
Agreement. For breach or violation of this warranty, the Client shall have the right to annul this
Agreement without liability or, in its discretion to deduct from the Agreement price or
consideration, or otherwise recover, the full amount of such fee, commission, percentage,
brokerage fee, gift, or contingent fee.
14. LIENS AND PAYMENTS. Artist shall convey title to the work free from all liens. Artist, independent of
Client’s payment obligations hereunder, shall timely compensate its subcontractors, employees and
suppliers in connection with the services performed hereunder, shall take necessary actions to
prevent any lien upon the property that is the subject of Artist’s services, and shall defend, indemnify
and hold harmless Client against any loss or expense arising out of any labor code violation, or claim
of lien from Artist, its subcontractors, employees, or suppliers.
15. CONFLICT OF INTEREST. Artist covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which would conflict in any manner or degree with the
performance of its services hereunder . Artist further covenants that in the performance of this
Agreement, no person having any such interest shall be employed.
16. DEFAULT. If Artist fails to perform any obligation under this Agreement, within the time and in
the manner herein provided or otherwise violates any term of this Agreement, Client may
terminate this Agreement by giving Artist written notice of such termination, stating the reason
for such termination. In such event, Artist shall be entitled to receive (as full payment for all
services satisfactorily rendered and expenses incurred hereunder) a proportionate amount of the
total fees specified in this Agreement equal to the ratio that the services satisfactorily rendered
by the Artist bear to the total services otherwise required to be performed under th e Agreement.
Notwithstanding the above, Artist shall not be relieved from liability to Client for damages
sustained by virtue of any breach of this Agreement by Artist, whether or not the Agreement was
terminated for convenience or cause, and Client may withhold payments not yet made to Artist
for the purpose of setoff until such time as the exact amount of damages due Client from Artis t is
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determined.
17. INDEPENDENT CONTRACTOR. The parties intend that Artist, in performing the services
specified herein, shall act as an independent contractor and shall have control of the work and
the manner in which it is performed. Artist is not to be considered an agent or employee of the
Client and is not entitled to participate in any pension plan, insurance, bonus or similar benefits
Client provides its employees. In the event Client exercises its right to terminate this Agreement,
Artist expressly agrees that he/she shall have no recourse o r right of appeal under rules,
regulations, ordinances or laws applicable to employees.
18. EMPLOYMENT PRACTICES. Artist shall not discriminate in its performance under the
Agreement either directly or indirectly on the grounds of race, color, religion, sex, age,
national origin, or other prohibited grounds in its employment practices, and shall take
affirmative steps to ensure that applicants are employed and employees are treated during
employment without regard to race, color, religion, sex , age, national origin, or other
prohibited grounds.
19. COMPLIANCE WITH LAW .
A. Artist shall comply with all applicable federal, state and local laws, rules and regulations
applicable to the Artist and his/her work hereunder and shall ensure that all subcontractors
do the same. Artist represents and warrants to Client that Artist has and will keep in effect
during the term of this Agreement all licenses, qualifications and approvals of whatsoever
nature, which are legally required for Artist to practice Artist's profession and to do the
work hereunder.
B. Artist agrees to abide by the requirements of the Immigration and Control Reform Act
pertaining to assuring that all newly -hired employees of Artist performing any services under
this Agreement have a legal right to work in t he United States of America, that all required
documentation of such right to work is inspected, and that INS Form 1 -9 (as it may be
amended from time to time) is completed and on file for each employee. Artist shall make
the required documentation availab le upon request to Client for inspection.
20. WORK PRODUCT AND ACCEPTANCE OF WORK
A. Upon the Client's acceptance of the work required by this Agreement as complete the Client
or Master Association shall have no obligation to display or maintain any physical works or
art or projects constructed using Artist's conceptual design for any particular time and
within the scope of its legal authority . Client and Master Association may in their sole
discretion remove, relocate, restore, modify or destroy the physical works or art or projects
constructed using Artist's conceptual design at any time after the completion of the project.
Client and Master Association owe no obligation to Artist to maintain the work.
B. As to the Client, the Master Association and their agents, employees and contractors, the
Artist hereby waives any and all rights he may have to prevent or cause the prevention of
the removal, relocation or destruction of the project once constructed; or to seek other
relief in connection with any such removal or destruction, pursuant to Title 17, Section 106A
of the United States Code, or pursuant to Section 987 of the California Civil Code as such
sections now exist or may hereafter be amended .
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C. Within the scope of its legal authority, Client and Master Association shall have the right to
make photographs, drawings, or other two-dimensional reproductions of the work and the
conceptual design without prior consent of the Artist if used solely for non -commercial
purposes, advertising, descriptive br ochures, and similar purposes.
D. Final Acceptance. Artist shall advise client in writing when Artist has completed all obligations,
services, and deliverables under this agreement. The work shall not be officially accepted by
the Client unless the City of Dublin has also issued a determination of final acceptance. Client
shall make a good faith effort to promptly request a determination as to final acceptance from
City.
21. OWNERSHIP AND RISK OF LOSS. Except in the case of early termination of this agreement, title
to the artwork shall transfer from Artist to Client or Master Association upon Client’s final
acceptance of the work. Title transfer shall be self -executing upon Client’s final acceptance of the
work. Artist will cooperate in providing Client or Master Association any title transfer documents
that Client or Master Association may request or require during or after the term of this agreement.
The risk of loss or damage to the artwork shall be borne solely by Artist until delivery of the artwork
to the property. Artist shall take steps to protect the artwork from loss or damage until final
acceptance by Client.
22. RIGHT TO ADEQUATE ASSURANCE OF PERFORMANCE. Each party to this Agreement
undertakes the obligation that the other's expectation of receiving due performance will not be
impaired. When reasonable grounds for insecurity arises with respect to the performance of
either party, the other may in writing demand adequate assurance of due performance, and until it
receives such assurance, may, if reasonable, suspend any performance for which the agreed
return has not been received. "Reasonable" includes not only the conduct of a party with respect to
other agreements with parties to this Agreement or others. After receipt of a justified demand,
failure to provide within a reasonable time, but not exceed fifteen (15) days, such assurance of due
performance as is adequate under the circumstances of the particular case is a repudiation of this
Agreement. Acceptance of any improper delivery, service or payment does not prejudice the
aggrieved party's right to demand adequate assurance of future performance.
23. CONFIDENTIALITY. Artist shall treat all information obtained from Client in the performance of this
Agreement as confidential and proprietary to Client. Artist shall treat all records and work product
prepared or maintained by Artist in the performance of this Agreement as confidential. Artist agrees
that it will not use any information obtained because of the performance of work for any purpose other
than fulfillment of Artist's scope of work. Artist will not disclose any information prepared for Client, or
obtained from Client or obtained as a consequence of the performance of work, to any person other
than Client, or its own employees, agents or subcontractors, who have a need for the information for
the performance of work under this Agreement unless such disclosure is specifically authorized in
writing by the Client. Artist shall advise Client of any request for disclosure of information or of any
actual or potential disclosure of information. Artist's obligations under this paragraph shall survive the
termination of this Agreement.
24. ACCIDENT REPORT. If any damage (including death, personal injury, or property damage) occurs in
connection with the performance of this Agreement, Artist shall promptly submit to the Client a
written notice of such accident with the following information:
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A. Name and address of the injured or deceased person(s);
B. Name and address of any witness;
C. Name and address of Artist's insurance company; and
D. A detailed description of the damage and whether any Client property was involved.
25. ELECTRONIC COMMUNICATIONS. During the course of this Agreement, communications may
occur through sending, receiving or exchanging electronic versions of documents and e-mails using
commercially available computer software and Internet access. Artist and the Client acknowledge
that the Internet is occasionally victimized by the creation and dissemination of so-called viruses or
similar destructive electronic programs. Artist and the Client view the issues raised by these viruses
seriously and have invested in document and e-mail scanning software that identify and reject files
containing known viruses. Artist agrees to update its system with the software vendor's most current
releases at regular intervals. Because of the virus scanning software, the respective computer
systems of the parties may occasionally reject a communication. The Parties acknowledge that this
occurrence is to be expected as part of the ordinary course of business . Because the virus
protection industry is generally one or two steps behind new viruses, neither party can guarantee
that, its respective communications and documents will be virus free. Occasionally, a Virus will
escape and go undetected as it is passed from system to system. Although each party will use
all reasonable efforts to assure that its communications are viruses free, neither party warrants
that its doc uments will be virus free. Each party agrees to advise the other if it discovers a virus
in its respective system that may have been communicated to the other party.
26. ELECTRONIC OR MAGNETIC DATA. If the Scope of Work requires that Artist provide
documents in electronic or magnetic formats, they shall be provided in a manipulative form.
Client recognizes that electronic or magnetic data and its transmission may be damaged, may
develop inaccuracies during use, and may contain viruses or other destructive programs, and
that software and hardware operating systems may become obsolete. Artist shall not be liable
for any loss of use, profit, or any other damages arising from Client's reuse, misuse,
modification, or misinterpretation of the data submitted in electronic or magnetic form. Nothing
contained in this paragraph shall affect the indemnification or standard of care required
hereunder for Artist with respect to Artist’s work and work products delivered in hard copy.
27. GENERAL PROVISIONS.
A. Headings. The heading titles for each paragraph of this Agreement are included only as a
guide to the contents and are not to be considered as controlling, enlarging, or restricting
the interpretation of the Agreement.
B. Severability . If any term of this Agreement (including any phrase, provision, covenant, or
condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the
Agreement shall be construed as not containing that term, and the remainder of this
Agreement shall remain in full force and effect; provided, however, this paragraph shall not
be applied to the extent that it would result in a frustration of the parties' intent under this
Agreement.
C. Governing Law. Jurisdiction. In addition, Venue. The interpretation, validity, and
enforcement of this Agreement shall be governed and interpreted in accordance with the
laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this
Agreement shall be filed and heard in a court of competent jurisdiction in the County of
Alameda.
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D. Attorney's Fees. In the event any legal action is commenced to enforce or interpret this
Agreement, the prevailing party is entitled to reasonable attorney's fees, costs, and expenses
incurred, whether or not such action proceeds to judgment.
E. Indemnification. Artist will indemnify, hold harmless, and defend Client (including its managers,
officers, directors, employees, agents, affiliates, successors, and permitted assigns
(collectively , "Indemnified Party") against all losses, damages, liabilities, deficiencies, claims,
actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of
whatever kind, including reasonable attorney’s fees, that are incurred by Indemnified
Party/awarded against Indemnified Party (collectively, "Losses"), arising out of any: a)
material breach or non-fulfillment of any material representation, warranty, or covenant in this
Agreement, (b) any negligent or more culpable act or omission of Artist [or its Personnel] in
connection with the performance of its obligations under this Agreement; or (c) any bodily
injury, death of any person, or damage to real or tangible personal property caused by the
acts or omissions of the Artist (including injury to Artist's personnel) or (d) the failure of Artist
to materially comply with any applicable federal, state, or local laws, regulations, or codes in
the performance of its obligations under this Agreement.
F. Assignment and Delegation. This Agreement, and any portion thereof, shall not be assigned
or transferred, nor shall any of the Artist's duties be delegated without the written consent of
Client. Any attempt to assign or delegate this Agreement without the written consent of the
Client shall be void and of no force or effect. Consent by the Client to one assignment shall
not be deemed consent to any subsequent assignment.
G. Modifications. This Agreement may not be modified orally or in any manner other than by
an agreement in writing signed by both parties.
H. Waivers. Waiver of a breach or default under this Agreement shall not constitute a
continuing waiver or a waiver of a subsequent breach of the same or any other provision
of this Agreement.
I. Time. Time is of the essence in carrying out the duties hereunder.
J. Entire Agreement. This Agreement, including all documents incorporated herein by
reference, comprises the entire integrated understanding between the parties concerning
the services described herein. This Agreement supersedes all prior negotiations,
agreements, and underst andings regarding this matter, whether written or oral. The
documents incorporated by reference into this Agreement are complementary; what is
called for in one is binding as if called for in all.
K. Each Party's Role in Drafting the Agreement. Each party to this Agreement has had an
opportunity to review the Agreement, confer with legal counsel regarding the meaning of the
Agreement, and negotiate revisions to the Agreement. Accordingly, neither party shall rely
upon Civil Code Section 1654 in order to interpret any uncertainty in the meaning of the
Agreement.
L. Signatures. The individuals executing this Agreement represent and warrant that they have
the right, power, legal capacity, and authority to enter into and to execute this Agreement
on behalf of the respective legal entities of the Artist and the Client.
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28. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day
and year first above written.
Dublin Crossing, LLC BoxStudio LLC
By: By: _________________________
Print Name: _________ Print Name: __________________
Title: ___ Title: ____
Date: _____________ Date: _______
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Jennifer Box
Executive Director
5/3/20225/3/2022
Gonzalo Rodriguez
VP, Land & Planning
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EXHIBIT A
Project Description
Project Description:
Rising Peace is one of Kevin’s favorite sculptures to make. Each one is different and starts off with an
interesting large rock the artist finds in the landscape. One at a time he welds the cranes together until the
composition—the flock—takes off as a whole.
Tsuru, the Japanese word for crane, is among the oldest origami forms folded from a single, uncut square of
paper. Images and references to this iconic design date back to the Edo period in Japan, 1603 to 1868. The
crane has become a symbol of peace around the world, and folding cranes continues to be an inspirational
experience for many. “To me, the cranes in this sculpture represent many generations helping one another
find joy and peace,” Kevin says. “They are lifting each other up and in all directions, spreading their message
into the world.”
Rising Peace, 2021
Kevin Box
Powder coated cast stainless steel on stone
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Artist's Responsibilities :
The Artist will complete the following tasks:
Attend a site visit; meet with client and the design team, walk-through the existing structure.
Review architectural drawings and renderings.
Review the structural and functional conditions of the project.
Review the code requirements for the project.
Produce drawings, renderings, videos, budget, and project narrative of initial concepts.
Meet with project team, as needed.
Meet with art conservator or provide art conservator report on materials to be used.
Present a proposal consisting of drawings, renderings, video rendering, budget, project narrative.
Revise the proposal based on feedback from the client and design team.
Fabricate a mock-up or a sample of the proposed artwork.
Document the sample with pho tos and videos.
Assist client and design team with permitting, inspection and approval process for artwork and its
support structure
Provide all needed design and engineering for support structure, foundation and wind loads.
Procure materials and parts for full-scale artwork.
Fabricate and assemble artwork.
Attend a meeting on-site to coordinate installation and verify that support structure is ready.
Crate and ship the artwork components to the job site.
Unload and store the artwork components at the job site.
Install and anchor the artwork upon the support structure, including any needed crane/rigging.
Document the final installation with photographs and video.
Provide final statement and drawings.
Create a maintenance manual for the artwork.
Comply with [Contractor] site logistics and safety plans.
Attend meeting with the City of Dublin to review logistics and "overhead work."
All install work must be at prevailing wage rate.
Client and Design Team Responsibilities:
The client and design team will complete the following tasks:
Review artist's proposal and provide feedback .
Obtain and assume the cost of any necessary permits, inspections and approvals for artwork from
local authorities.
Client is responsible for all expenses, materials, labor and equipment to prepare the site for the timely
installation of the work. This preparation of the site shall include the cost and construction of the
foundation.
Meet with artist's installer to coordinate delivery and installation of artwork components.
Provide a place to store the artist's materials during installation.
Process invoices net 30 days from the end of the month .
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EXHIBIT B
Schedule of Performance & Compensation Schedule
The artist will complete the tasks described under Artist’s Responsibilities in this agreement for a total
fee one-hundred seventeen thousand six hundred seven dollars.
Costs
Total Cost (Includes Design, Fabrication, Delivery and Installation) $ 117,607
Payment Schedule
1. Due upon acceptance of proposal (50%) $ 58,803.50
2. Due upon notice to proceed with installation (25%) $ 29,401.75
3. Due upon final acceptance of artwork (25%) $ 29,401.75
Schedule
1. Acceptance of proposal Date__________________
2. Notice to proceed with installation Date__________________
3. Completion of installation Date__________________
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May 3, 2022
September 1, 2022
By December 15, 2022
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AGREEMENT FOR SERVICES
Public Art Design, Fabrication and Installation
This Agreement is dated this 29th day of October, 2021, by and between Dublin Crossing, LLC
(hereinafter referred to as the "Client"), and David Duskin (hereinafter referred to as the "Artist").
RECITALS
A. The Client has requested the Artist to design, fabricate, and install public art at The
Boulevard Master Plan, on Arnold Road. & Central Parkway, Dublin, CA 94568
B. The Artist is qualified and experienced to provide such services.
NOW, THEREFORE, the Client and the Artist, for the consideration hereinafter set forth, mutually
agree as follows:
1. SCOPE OF WORK. The Artist shall develop the final design of the artwork (see Exhibit A) to
complete all phases of development (including the acquisition of materials, fabrication ) that shall lead
to and include the successful installation of the artwork. Artist shall perform all services as detailed in
the attached "Schedule of Performance and Compensation Schedule," attached hereto as Exhibit
"B."
2. WARRANTIES.
A. Warranty of Title: The Artist warrants that the artwork is original and solely the product of Artist’s
own creative efforts and does not infringe on the rights of any person or entity. Except as
otherwise disclosed in writing to Client, the artwork is unique and original and does not infringe
upon any copyright or the rights of any person.
B. The Artist shall faithfully perform the work required under this agreement in accordance with
standards of care, skill, training, diligence, and judgment provided by highly competent
professionals who perform work of a similar nature to the work described in this agreement. Ar tist
shall assign only competent personnel to perform services pursuant to this agreement.
C. Warranty of workmanship. The artist shall guarantee its work to be free from faults or defects of
material and workmanship for a period of one (1) year after installation and final acceptance of all
work by Client.
D. Warranty of public safety. Artist represents and warrants that the work will not pose a danger to
public health or safety, including through the possibility of misuse, if such misuse is in a manner
that was reasonably foreseeable at any time during the term of this agreement.
E. Warranty of acceptable standard of display and operation. Artist represents and warrants that:
(1) Occasional or minimal cleaning and repair of the work and any associated working parts
and/or equipment will be sufficient to maintain the work within an acceptable standard for
public display.
(2) With general routine cleaning and repair, foreseeable exposure to the elements and general
wear and tear will cause the work to experience only minor repairable damage or
deterioration, and will not cause the work to experience irreparable damage or deterioration
below an acceptable standard of public display, including mold, rust, fracturing, staining,
chipping, tearing, abrading, and/or peeling.
F. Manufacturer’s W arranty. To the extent the work incorporates products covered by a
manufacturers’ warranty, artist shall assign, hereby assigns, and shall provide copies of, such
warranties to Client.
G. Warranties provided herein shall inure to the benefit of the ultimate owner(s) of the subject work
including Boulevard Master Owners Association, a California nonprofit mutual benefit corporation
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(hereinafter “Master Association”). Master Association is an intended beneficiary of this
Agreement.
3. COORDINATION. Artist shall personally participate in said project to coordinate all activities
of the project. The Client authorizes Josh Roden [Client Authorized Representative] to act on
behalf of the Client in accordance with the terms of this Agreement, and to take all actions
authorized or required to be taken by the Client.
4. COMPENSATION.
A. Client shall pay Artist as compensation for such services and conveyance of title to the
completed work as set forth in the "Schedule of Performance and Compensation
Schedule" attached hereto as Exhibit "B" and incorporated herein by reference. Client shall
pay Artist the amount identified under the "Payment Amount" column after each
corresponding phase of work has been completed to the satisfaction of the Client. Artist
shall complete all the services required under this Agreement for a total payment from the
Client in an amount not to exceed six-hundred thousand dollars ($600,000.00).
B. Upon completion of each Phase as described on Exhibit "B", Artist shall submit invoices for
work performed. Client shall make payment within thirty (30) days after approval of the
invoice by Client.
5. TERM. The term of this Agreement shall be from the date of its execution until the completion of
the work contemplated by this Agreement and its final installation unless terminated earlier as
provided herein.
6. NOTICES. Any notice (including any demand, request, consent, approval , or communication
that any party desires or is required to give to any other party or any other person under this
Agreement) shall be in writing and either served personally or sent by prepaid, certified or
registered mail, return receipt requested. Any such notice shall be addressed as follows:
TO Client: Dublin Crossing, LLC
Josh Roden, President
12657 Alcosta Blvd, Suite 250, San Ramon, CA 94583
925.743.8000
Amanda.Stone@brookfieldrp.com
TO ARTIST: David Duskin
222 Fair Street, Petaluma CA, 94952
415.260.8630
david@davidduskin.com
Any party may change its address by notifying the other parties of the change of address. All
notices shall be effective on the date of actual delivery, or the date set forth on the return receipt
of a certified or registered mail delivery.
7. AMENDMENT OF SCOPE OF WORK. Client may request an amendment to the Scope of Work
within the Agreement by written notification to the Artist. In such event, the compensation and
time of performance shall be subject to renegotiation upon written demand of either party to the
Agreement. The Artist may request an adjustment to the contract price or time for performance
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only if the Artist establishes to the satisfaction of the Client's Authorized Representative that
there was an unforeseen and unforeseeable condition that was outside of t he responsibility or
control of the Artist. Failure of the Artist to secure Client's written authorization for extra or
changed work shall constitute a waiver of all right to adjustment in the contract price or time
due.
8. CLIENT'S RIGHT TO TERMINATE/SUSPEND CONTRACT At any time and for any or no reason,
Client shall have the right to terminate this Agreement, and pay the Artist (as full payment
for all services satisfactorily rendered and expenses incurred hereunder) a proportionate amount
of the total fees specified in this Agreement equal to the ratio that the services satisfactorily
rendered by the Artist at the time of such termination bears to the t otal services otherwise
required to be performed under the Agreement. Notwithstanding the above, Artist shall not be
relieved from liability to Client for damages sustained by virtue of any breach of this Agreement by
Artist, whether or not the Agreement was terminated for convenience or cause, and Client may
withhold payments not yet made to Artist for the purpose of setoff until such time as the exact
amount of damages due Client from Artist is determined. If Client terminates without cause, Client
shall have no right of use to any of Artist's work, e.g. studies, preliminary drawings, computations,
specifications, etc., without further agreement with Artist.
9. CORRECTION OF WORK. The performance of services or acceptance of information furnished by
Artist shall not relieve the Artist from obligation to correct any defective, inaccurate or incomplete
work for which Artist is responsible under this Agreement that is subsequently discovered, and all
such work shall be remedied by the Artist on demand without cost to the Client.
10. DELAYS AND EXTENSIONS. Time is of the essence concerning performance of this Agreement;
however, the Artist will be granted time extensions for delays beyond the Artist's control. Time
extensions will be equal to the length of the delay or as otherwise agreed upon between the Artist
and the Client.
11. INSURANCE.
A. Prior to commencing the work that is the subject of this agreement, and throughout the period of
this Agreement, and Artist shall obtain and maintain the following policies of insurance, in a
form and from insurance companies reasonably acceptable to Client, and shall require any
subcontractors to obtain and maintain equivalent coverage: Comprehensive or Commercial
General Liability Insurance with limits of no less than $1,000,000.00 per occurrence, with
insurers with a Bests’ rating of no less than A:VII.
B. Prior to commencing the work that is the subject of this agreement, Artist shall provide Client with
certificates of insurance evidencing the above coverage, and upon request by Client shall
provide certified copies of all required insurance policies maintained by Artist.
C. Prior to commencing the work that is the subject of this agreement, Artist shall obtain and deliver
to Client an additional insured endorsement naming Client, City of Dublin, and Master
Association as additional insureds, as primary insurance, under Artist’s Commercial General
Liability policy.
D. If Artist fails to procure, maintain or pay for the required insurance, Client shall have the right
(but not the obligation) to secure the same in the name of and for the account of Artist, in
which event, Artist shall pay the cost thereof and shall furnish upon demand, all information
that may be required to procure such insurance.
E. Upon receipt of any notice of such insurance carrier’s cancellation or alteration, Artist shall
within ten (10) calendar days procure other policies of insurance (or make payment of premium
if that was the reason for such notice), similar in all respects to the policy or policies about to
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expire, be canceled or altered.
12. STANDARD OF CARE. The Client relies upon the professional ability of Artist and representations
regarding the type of work to be performed as a material inducement to entering into this Agreement.
Artist agrees to use reasonable care and diligence in rendering services under this Agreement. Artist
is responsible for the work of all employees, subcontractors, and agents, and the negligence of one of
them, if not adequately remedied by Artist, shall be conclusively deemed the negligence of Artist.
Artist agrees that the acceptance of his work by Client shall not operate as a waiver or release of said
obligation of Artist. The absence, omission, or failure to include in this Agreement, items which are
normally considered to be a part of generally accepted professional procedure or which involve
specialized professional judgment appropriate to the type of work to be performed under this
Agreement shall not be used as a basis for submission of inadequate work or incomplete
perform ance.
13. COVENANT AGAINST CONTINGENT FEES. The Artist warrants that he has not employed or
retained any company or person, other than a bona fide employee working for the Artist, to
solicit or secure this Agreement, and that he has not paid or agreed to pay any company or
person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift,
or any other consideration, contingent upon or resulting from the award or making this
Agreement. For breach or violation of this warranty, the Client shall have the right to annul this
Agreement without liability or, in its discretion to deduct from the Agreement price or
consideration, or otherwise recover, the full amount of such fee, commission, percentage,
brokerage fee, gift, or contingent fee.
14. LIENS AND PAYMENTS. Artist shall convey title to the work free from all liens. Artist, independent of
Client’s payment obligations hereunder, shall timely compensate its subcontractors, employees and
suppliers in connection with the services performed hereunder, shall take necessary actions to
prevent any lien upon the property that is the subject of Artist’s services, and shall defend, indemnify
and hold harmless Client against any loss or expense arising out of any labor code violation, or claim
of lien from Artist, its subcontractors, employees, or suppliers.
15. CONFLICT OF INTEREST. Artist covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which would conflict in any manner or degree with the
performance of its services hereunder . Artist further covenants that in the performance of this
Agreement, no person having any such interest shall be employed.
16. DEFAULT. If Artist fails to perform any obligation under this Agreement, within the time and in
the manner herein provided or otherwise violates any term of this Agreement, Client may
terminate this Agreement by giving Artist written notice of such termination, stating the reason
for such termination. In such event, Artist shall be entitled to receive (as full payment for all
services satisfactorily rendered and expenses incurred hereunder) a proportionate amount of the
total fees specified in this Agreement equal to the ratio that the services satisfactorily rendered
by the Artist bear to the total services otherwise required to be performed under the Agreement.
Notwithstanding the above, Artist shall not be relieved from liability to Client for damages
sustained by virtue of any breach of this Agreement by Artist, whet her or not the Agreement was
terminated for convenience or cause, and Client may withhold payments not yet made to Artist
for the purpose of setoff until such time as the exact amount of damages due Client from Artist is
determined.
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17. INDEPENDENT CONTRACTOR. The parties intend that Artist, in performing the services
specified herein, shall act as an independent contractor and shall have control of the work and
the manner in which it is performed. Artist is not to be considered an agent or employee of the
Client and is not entitled to participate in any pension plan, insurance, bonus or similar benefits
Client provides its employees. In the event Client exercises its right to terminate this Agreement,
Artist expressly agrees that he/she shall have no recourse or right of appeal under rules,
regulations, ordinances or laws applicable to employees.
18. EMPLOYMENT PRACTICES. Artist shall not discriminate in its performance under the
Agreement either directly or indirectly on the grounds of race, color, religion, sex, age,
national origin, or other prohibited grounds in its employment practices, and shall take
affirmative steps to ensure that applicants are employed and employees are treated during
employment without regard to race, color, religion, sex , age, national origin, or other
prohibited grounds.
19. COMPLIANCE WITH LAW .
A. Artist shall comply with all applicable federal, state and local laws, rules and regulations
applicable to the Artist and his/her work hereunder and shall ensure that all subcontractors
do the same. Artist represents and warrants to Client that Artist has and will keep in effect
during the term of this Agreement all licenses, qualifications and approvals of whatsoever
nature, which are legally required for Artist to practic e Artist's profession and to do the
work hereunder.
B. Artist agrees to abide by the requirements of the Immigration and Control Reform Act
pertaining to assuring that all newly -hired employees of Artist performing any services under
this Agreement have a le gal right to work in the United States of America, that all required
documentation of such right to work is inspected, and that INS Form 1 -9 (as it may be
amended from time to time) is completed and on file for each employee. Artist shall make
the required documentation available upon request to Client for inspection.
20. WORK PRODUCT AND ACCEPTANCE OF WORK
A. Upon the Client's acceptance of the work required by this Agreement as complete the Client
or Master Association shall have no obligation to display or maintain any physical works or
art or projects constructed using Artist's conceptual design for any particular time and
within the scope of its legal authority . Client and Master Association may in their sole
discretion remove, relocate, restore, modify or destroy the physical works or art or projects
constructed using Artist's conceptual design at any time after the completion of the project.
Client and Master Association owe no obligation to Artist to maintain the work.
B. As to the Client, the Master Association and their agents, employees and contractors, the
Artist hereby waives any and all rights he may have to prevent or cause the prevention of
the removal, relocation or destruction of the project once constructed; or to seek other
relief in connection with any such removal or destruction, pursuant to Title 17, Section 106A
of the United States Code, or pursuant to Section 987 of the California Civil Code as such
sections now exist or may hereafter be amended .
C. Within the scope of its legal authority, Client and Master Association shall have the right to
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make photographs, drawings, or other two-dimensional reproductions of the work and the
conceptual design without prior consent of the Artist if used solely for non -commercial
purposes, advertising, descriptive brochures, and similar purposes.
D. Final Acceptance. Artist shall advise client in writing when Artist has completed all obligations,
services, and deliverables under this agreement. The work shall not be officially accepted by
the Client unless the City of Dublin has also issued a determination of final acceptance. Client
shall make a good faith effort to promptly request a determination as to final acceptance from
City.
21. OWNERSHIP AND RISK OF LOSS. Except in the case of early termination of this agreement, title
to the artwork shall transfer from Artist to Client or Master Association upon Client’s final
acceptance of the work. Title transfer shall be self -executing upon Client’s final acceptance of the
work. Artist will cooperate in providing Client or Master Association any title transfer documents
that Client or Master Association may request or require during or after the term of this agreement.
The risk of loss or damage to the artwork shall be borne solely by Artist until del ivery of the artwork
to the property. Artist shall take steps to protect the artwork from loss or damage until final
acceptance by Client.
22. RIGHT TO ADEQUATE ASSURANCE OF PERFORMANCE. Each party to this Agreement
undertakes the obligation that the other's expectation of receiving due performance will not be
impaired. When reasonable grounds for insecurity arises with respect to the performance of
either party, the other may in writing demand adequate assurance of due performance, and until it
receives such assurance, may, if reasonable, suspend any performance for which the agreed
return has not been received. "Reasonable" includes not only the conduct of a party with respect to
other agreements with parties to this Agreement or others. After receipt of a justified demand,
failure to provide within a reasonable time, but not exceed fifteen (15) days, such assurance of due
performance as is adequate under the circumstances of the particular case is a repudiation of this
Agreement. Acceptance of any improper delivery, service or payment does not prejudice the
aggrieved party's right to demand adequate assurance of future performance.
23. CONFIDENTIALITY. Artist shall treat all information obtained from Client in the performance of this
Agreement as confidential and proprietary to Client. Artist shall treat all records and work product
prepared or maintained by Artist in the performance of this Agreement as confidential. Artist agrees
that it will not use any information obtained because of the performance of work for any purpose other
than fulfillment of Artist's scope of work. Artist will not disclose any information prepared for Client, or
obtained from Client or obtained as a consequence of the performance of work, to any person other
than Client, or its own employees, agents or subcontractors, who have a need for the information for
the performance of work under this Agreement unless such disclosure is specifically authorized in
writing by the Client. Artist shall advise Client of any request for disclosure of information or of any
actual or potential disclosure of information. Artist's obligations under this paragraph shall survive the
termination of this Agreement.
24. ACCIDENT REPORT. If any damage (including death, personal injury, or property damage) occurs in
connection with the performance of this Agreement, Artist shall promptly submit to the Client a
written notice of such accident with the following information:
A. Name and address of the injured or deceased person(s);
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B. Name and address of any witness;
C. Name and address of Artist's insurance company; and
D. A detailed description of the damage and whether any Client property was involved.
25. ELECTRONIC COMMUNICATIONS. During the course of this Agreement, communications may
occur through sending, receiving or exchanging electronic versions of documents and e-mails using
commercially available computer software and Internet access. Artist and the Client acknowledge
that the Internet is occasionally victimized by the creation and dissemination of so-called viruses or
similar destructive electronic programs. Artist and the Client view the issues raised by these viruses
seriously and have invested in document and e-mail scanning software that identify and reject files
containing known viruses. Artist agrees to update its system with the software vendor's most current
releases at regular intervals. Because of the virus scanning software, the respective computer
systems of the parties may occasionally reject a communication. The Parties acknowledge that this
occurrence is to be expected as part of the ordinary course of business . Because the virus
protection industry is generally one or two steps behind new viruses, neither party can guarantee
that, its respective communications and documents will be virus free. Occasionally, a Virus will
escape and go undetected as it is passed from system to system. Although each party will use
all reasonable efforts to assure that its communications are viruses free, neither party warrants
that its doc uments will be virus free. Each party agrees to advise the other if it discovers a virus
in its respective system that may have been communicated to the other party.
26. ELECTRONIC OR MAGNETIC DATA. If the Scope of Work requires that Artist provide
documents in electronic or magnetic formats, they shall be provided in a manipulative form.
Client recognizes that electronic or magnetic data and its transmission may be damaged, may
develop inaccuracies during use, and may contain viruses or other destructive programs, and
that software and hardware operating systems may become obsolete. Artist shall not be liable
for any loss of use, profit, or any other damages arising from Client's reuse, misuse,
modification, or misinterpretation of the data submitted in electronic or magnetic form. Nothing
contained in this paragraph shall affect the indemnification or standard of care required
hereunder for Artist with respect to Artist’s work and work products delivered in hard copy.
27. GENERAL PROVISIONS.
A. Headings. The heading titles for each paragraph of this Agreement are included only as a
guide to the contents and are not to be considered as controlling, enlarging, or restricting
the interpretation of the Agreement.
B. Severability . If any term of this Agreement (including any phrase, provision, covenant, or
condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the
Agreement shall be construed as not containing that term, and the remainder of this
Agreement shall remain in full force and effect; provided, however, this paragraph shall not
be applied to the extent that it would result in a frustration of the parties' intent under this
Agreement.
C. Governing Law. Jurisdiction. In addition, Venue. The interpretation, validity, and
enforcement of this Agreement shall be governed and interpreted in accordance with the
laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this
Agreement shall be filed and heard in a court of competent jurisdiction in the County of
Alameda.
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D. Attorney's Fees. In the event any legal action is commenced to enforce or interpret this
Agreement, the prevailing party is entitled to reasonable attorney's fees, costs, and expenses
incurred, whether or not such action proceeds to judgment.
E. Indemnification. Artist will indemnify, hold harmless, and defend Client (including its managers,
officers, directors, employees, agents, affiliates, successors, and permitted assigns
(collectively , "Indemnified Party") against all losses, damages, liabilities, deficiencies, claims,
actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of
whatever kind, including reasonable attorney’s fees, that are incurred by Indemnified
Party/awarded against Indemnified Party (collectively, "Losses"), arising out of any: a)
material breach or non-fulfillment of any material representation, warranty, or covenant in this
Agreement, (b) any negligent or more culpable act or omission of Artist [or its Personnel] in
connection with the performance of its obligations under this Agreement; or (c) any bodily
injury, death of any person, or damage to real or tangible personal property caused by the
acts or omissions of the Artist (including injury to Artist's personnel) or (d) the failure of Artist
to materially comply with any applicable federal, state, or local laws, regulations, or codes in
the performance of its obligations under this Agreement.
F. Assignment and Delegation. This Agreement, and any portion thereof, shall not be assigned
or transferred, nor shall any of the Artist's duties be delegated without the written consent of
Client. Any attempt to assign or delegate this Agreement without the written consent of the
Client shall be void and of no force or effect. Consent by the Client to one assignment shall
not be deemed consent to any subsequent assignment.
G. Modifications. This Agreement may not be modified orally or in any manner other than by
an agreement in writing signed by both parties.
H. Waivers. Waiver of a breach or default under this Agreement shall not constitute a
continuing waiver or a waiver of a subsequent breach of the same or any other provision
of this Agreement.
I. Time. Time is of the essence in carrying out the duties hereunder.
J. Entire Agreement. This Agreement, including all documents incorporated herein by
reference, comprises the entire integrated understanding between the parties concerning
the services described herein. This Agreement supersedes all prior negotiations,
agreements, and underst andings regarding this matter, whether written or oral. The
documents incorporated by reference into this Agreement are complementary; what is
called for in one is binding as if called for in all.
K. Each Party's Role in Drafting the Agreement. Each party to this Agreement has had an
opportunity to review the Agreement, confer with legal counsel regarding the meaning of the
Agreement, and negotiate revisions to the Agreement. Accordingly, neither party shall rely
upon Civil Code Section 1654 in order to interpret any uncertainty in the meaning of the
Agreement.
L. Signatures. The individuals executing this Agreement represent and warrant that they have
the right, power, legal capacity, and authority to enter into and to execute this Agreement
on behalf of the respective legal entities of the Artist and the Client.
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28. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day
and year first above written.
Dublin Crossing, LLC David Duskin
By: By: _________________________
Print Name: _________ Print Name: __________________
Title: ___ Title: ____
Date: _____________ Date: _______
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David Duskin
Owner
10/29/2021
Josh Roden
10/30/2021
President
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EXHIBIT A
Project Description
Project Description:
Client and Artist agreed to the change in dimensions to approximately 14’ tall x 9’ x 6.5’ on June 29,
2021.
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Artist's Responsibilities :
The Artist will complete the following tasks:
Attend a site visit; meet with client and the design team, walk-through the existing structure.
Review architectural drawings and renderings.
Review the structural and functional conditions of the project.
Review the code requirements for the project.
Produce drawings, renderings, videos, budget, and project narrative of initial concepts.
Meet with project team, as needed.
Meet with art conservator or provide art conservator report on materials to be used.
Present a proposal consisting of drawings, renderings, video rendering, budget, proj ect narrative.
Revise the proposal based on feedback from the client and design team.
Fabricate a mock-up or a sample of the proposed artwork.
Document the sample with photos and videos.
Assist client and design team with permitting, inspection and approval process for artwork and its
support structure.
Design, engineer, fabricate and install the support structure for the artwork.
Provide all needed engineering for support structure, foundation, wind loads, and construction of the
foundation.
Procure materials and parts for full-scale artwork.
Fabricate and assemble artwork.
Attend a meeting on-site to coordinate installation and verify that support structure is ready.
Crate and ship the artwork components to the job site.
Unload and store the artwork components at the job site.
Install and anchor the artwork upon the support structure, including any needed crane/rigging.
Document the final installation with photographs and video.
Provide final statement and drawings.
Create a maintenance manual for the artwork.
Comply with [Contractor] site logistics and safety plans.
Attend meeting with the City of Dublin to review logistics and "overhead work."
All install work must be at prevailing wage rate.
Client and Design Team Responsibilities:
The client and design team will complete the following tasks:
Review artist's proposal and provide feedback .
Obtain and assume the cost of any necessary permits, inspections and approvals for artwork from
local authorities.
Meet with artist's installer t o coordinate delivery and installation of artwork components.
Provide a place to store the artist's materials during installation.
Process invoices net 30 days from the end of the month .
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EXHIBIT B
Schedule of Performance & Compensation Schedule
The artist will complete the tasks described under Artist’s Responsibilities in this agreement for a total
fee twenty eight thousand dollars.
Costs
Total Cost (Includes Design, Fabrication, Delivery and Installation) $ 600,000
Payment Schedule
1. Due upon acceptance of proposal (50%) $ 300,000
2. Due upon notice to proceed with installation (25%) $ 150,000
3. Due upon final acceptance of artwork (25%) $ 150,000
Schedule
1. Acceptance of proposal
2. Notice to proceed with installation
3. Completion of installation
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2023
2022
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AGREEMENT FOR SERVICES
Public Art Design, Fabrication and Installation
This Agreement is dated this 29th day of October , 2021 , by and between Dublin Crossing.
LLC (hereinafter referred to as the "Client"), and Tyler Van Der Stappen (hereinafter referred to as
the "Artist").
RECITALS
A. The Client has requested the Artist to design, fabricate, and install public art at The
Boulevard Master Plan, on Sterling Street & Nugget Way, Dublin, CA 94568
B. The Artist is qualified and experienced to provide such services.
NOW, THEREFORE, the Client and the Artist, for the consideration hereinafter set forth, mutually
agree as follows:
1. SCOPE OF WORK. The Artist shall develop the final design of the artwork (see Exhibit A) to
complete all phases of development (including the acquisition of materials, fabrication ) that shall lead
to and include the successful installation of the artwork. Artist shall perform all services as detailed in
the attached "Schedule of Performance and Compensation Schedule," attached hereto as Exhibit
"B."
2. WARRANTIES.
A. Warranty of Title: The Artist warrants that the artwork is original and solely the product of Artist’s
own creative efforts and does not infringe on the rights of any person or entity. Except as
otherwise disclosed in writing to Client, the artwork is unique and original and does not infringe
upon any copyright or the rights of any person.
B. The Artist shall faithfully perform the work required under this agreement in accordance with
standards of care, skill, training, diligence, and judgment provided by highly competent
professionals who perform work of a similar nature to the work described in this agreement. Ar tist
shall assign only competent personnel to perform services pursuant to this agreement.
C. Warranty of workmanship. The artist shall guarantee its work to be free from faults or defects of
material and workmanship for a period of one (1) year after installation and final acceptance of all
work by Client.
D. Warranty of public safety. Artist represents and warrants that the work will not pose a danger to
public health or safety, including through the possibility of misuse, if such misuse is in a manner
that was reasonably foreseeable at any time during the term of this agreement.
E. Warranty of acceptable standard of display and operation. Artist represents and warrants that:
(1) Occasional or minimal cleaning and repair of the work and any associated working parts
and/or equipment will be sufficient to maintain the work within an acceptable standard for
public display.
(2) With general routine cleaning and repair, foreseeable exposure to the elements and general
wear and tear will cause the work to experience only minor repairable damage or
deterioration, and will not cause the work to experience irreparable damage or deterioration
below an acceptable standard of public display, including mold, rust, fracturing, staining,
chipping, tearing, abrading, and/or peeling.
F. Manufacturer’s W arranty. To the extent the work incorporates products covered by a
manufacturers’ warranty, artist shall assign, hereby assigns, and shall provide copies of, such
warranties to Client.
G. Warranties provided herein shall inure to the benefit of the ultimate owner(s) of the subject work
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including Boulevard Master Owners Association, a California nonprofit mutual benefit corporation
(hereinafter “Master Association”). Master Association is an intended beneficiary of this
Agreement.
3. COORDINATION. Artist shall personally participate in said project to coordinate all activities
of the project. The Client authorizes Josh Roden Client Authorized Representative] to act on
behalf of the Client in accordance with the terms of this Agreement, and to take all actions
authorized or required to be taken by the Client.
4. COMPENSATION.
A. Client shall pay Artist as compensation for such services and conveyance of title to the
completed work as set forth in the "Schedule of Performance and Compensation
Schedule" attached hereto as Exhibit "B" and incorporated herein by reference. Client shall
pay Artist the amount identified under the "Payment Amount" column after each
corresponding phase of work has been completed to the satisfaction of the Client. Artist
shall complete all the services required under this Agreement for a total payment from the
Client in an amount not to exceed Twenty Eight Thousand Dollars ($28,000).
B. Upon completion of each Phase as described on Exhibit "B", Artist shall submit invoices for
work performed. Client shall make payment within thirty (30) days after approval of the
invoice by Client.
5. TERM. The term of this Agreement shall be from the date of its execution until the completion of
the work contemplated by this Agreement and its final installation unless terminated earlier as
provided herein.
6. NOTICES. Any notice (including any demand, request, consent, approval , or communication
that any party desires or is required to give to any oth er party or any other person under this
Agreement) shall be in writing and either served personally or sent by prepaid, certified or
registered mail, return receipt requested. Any such notice shall be addressed as follows:
TO Client: Dublin Crossing, LLC
Josh Roden, President
12657 Alcosta Blvd, Suite 250, San Ramon, CA 94583
925.743.8000
Amanda.Stone@brookfieldrp.com
TO ARTIST: Tyler van der Stappen
1050 Creekside Drive, Ogden, UT 84404
801.920.2403
tyvanelvi@gmail.com
Any party may change its address by notifying the other parties of the change of address. All
notices shall be effective on the date of actual delivery, or the date set forth on the return receipt
of a certified or registered mail delivery.
7. AMENDMENT OF SCOPE OF WORK. Client may request an amendment to the Scope of Work
within the Agreement by written notification to the Artist. In such event, the compensation and
time of performance shall be subject to renegotiation upon written demand of either party to the
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Agreement. The Artist may request an adjustment to the contract price or time for performance
only if the Artist establishes to the satisfaction of the Client's Authorized Representative that
there was an unforeseen a nd unforeseeable condition that was outside of the responsibility or
control of the Artist. Failure of the Artist to secure Client's written authorization for extra or
changed work shall constitute a waiver of all right to adjustment in the contract price or time
due.
8. CLIENT'S RIGHT TO TERMINATE/SUSPEND CONTRACT At any time and for any or no reason,
Client shall have the right to terminate this Agreement, and pay the Artist (as full payment
for all services satisfactorily rendered and expenses incurred hereunder) a proportionate amount
of the total fees specified in this Agreement equal to the ratio that the services satisfactorily
rendered by the Artist at the time of such termination bears to the t otal services otherwise
required to be performed under the Agreement. Notwithstanding the above, Artist shall not be
relieved from liability to Client for damages sustained by virtue of any breach of this Agreement by
Artist, whether or not the Agreement was terminated for convenience or cause, and Client may
withhold payments not yet made to Artist for the purpose of setoff until such time as the exact
amount of damages due Client from Artist is determined. If Client terminates without cause, Client
shall have no right of use to any of Artist's work, e.g. studies, preliminary drawings, computations,
specifications, etc., without further agreement with Artist.
9. CORRECTION OF WORK. The performance of services or acceptance of information furnished by
Artist shall not relieve the Artist from obligation to correct any defective, inaccurate or incomplete
work for which Artist is responsible under this Agreement that is subsequently discovered, and all
such work shall be remedied by the Artist on demand without cost to the Client.
10. DELAYS AND EXTENSIONS. Time is of the essence concerning performance of this Agreement;
however, the Artist will be granted time extensions for delays beyond the Artist's control. Time
extensions will be equal to the length of the delay or as otherwise agreed upon between the Artist
and the Client.
11. INSURANCE.
A. Prior to commencing the work that is the subject of this agreement, and throughout the period of
this Agreement, and Artist shall obtain and maintain the following policies of insurance, in a
form and from insurance companies reasonably acceptable to Client, and shall require any
subcontractors to obtain and maintain equivalent coverage: Comprehensive or Commercial
General Liability Insurance with limits of no less than $1,000,000.00 per occurrence, with
insurers with a Bests’ rating of no less than A:VII.
B. Prior to commencing the work that is the subject of this agreement, Artist shall provide Client with
certificates of insurance evidencing the above coverage, and upon request by Client shall
provide certified copies of all required insurance policies maintained by Artist.
C. Prior to commencing the work that is the subject of this agreement, Artist shall obtain and deliver
to Client an additional insured endorsement naming Client, City of Dublin, and Master
Association as additional insureds, as primary insurance, under Artist’s Commercial General
Liability policy.
D. If Artist fails to procure, maintain or pay for the required insurance, Client shall have the right
(but not the obligation) to secure the same in the name of and for the account of Artist, in
which event, Artist shall pay the cost thereof and shall furnish upon demand, all information
that may be required to procure such insurance.
E. Upon receipt of any notice of such insurance carrier’s cancellation or alteration, Artist shall
within ten (10) calendar days procure other policies of insurance (or make payment of premium
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if that was the reason for such notice), similar in all respects to the policy or policies about to
expire, be canceled or altered.
12. STANDARD OF CARE. The Client relies upon the professional ability of Artist and representations
regarding the type of work to be performed as a material inducement to entering into this Agreement.
Artist agrees to use reasonable care and diligence in rendering services under this Agreement. Artist
is responsible for the work of all employees, subcontractors, and agents, and the negligence of one of
them, if not adequately remedied by Artist, shall be conclusively deemed the negligence of Artist.
Artist agrees that the acceptance of his work by Client shall not operate as a waiver or release of said
obligation of Artist. The absence, omission, or failure to include in this Agreement, items which are
normally considered to be a part of generally accepted professional procedure or which involve
specialized professional judgment appropriate to the type of work to be performed under this
Agreement shall not be used as a basis for submission of inadequate work or incomplete
perform ance.
13. COVENANT AGAINST CONTINGENT FEES. The Artist warrants that he has not employed or
retained any company or person, other than a bona fide employee working for the Artist, to
solicit or secure this Agreement, and that he has not paid or agreed to pay any company or
person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift,
or any other consideration, contingent upon or resulting from the award or making this
Agreement. For breach or violation of this warranty, the Client shall have the right to annul this
Agreement without liability or, in its discretion to deduct from the Agreement price or
consideration, or otherwise recover, the full amount of such fee, commission, percentage,
brokerage fee, gift, or contingent fee.
14. LIENS AND PAYMENTS. Artist shall convey title to the work free from all liens. Artist, independent of
Client’s payment obligations hereunder, shall timely compensate its subcontractors, employees and
suppliers in connection with the services performed hereunder, shall take necessary actions to
prevent any lien upon the property that is the subject of Artist’s services, and shall defend, indemnify
and hold harmless Client against any loss or expense arising out of any labor code violation, or claim
of lien from Artist, its subcontractors, employees, or suppliers.
15. CONFLICT OF INTEREST. Artist covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which would conflict in any manner or degree with the
performance of its services hereunder . Artist further covenants that in the performance of this
Agreement, no person having any such interest shall be employed.
16. DEFAULT. If Artist fails to perform any obligation under this Agreement, within the time and in
the manner herein provided or otherwise violates any term of this Agreement, Client may
terminate this Agreement by giving Artist written notice of such termination, stating the reason
for such termination. In such event, Artist shall be entitled to receive (as full payment for all
services satisfactorily rendered and expenses incurred hereunder) a proportionate amount of the
total fees specified in this Agreement equal to the ratio that the services satisfactorily rendered
by the Artist bear to the total services otherwise required to be performed under the Agreement.
Notwithstanding the above, Artist shall not be relieved from liability to Client for damages
sustained by virtue of any breach of this Agreement by Artist, whet her or not the Agreement was
terminated for convenience or cause, and Client may withhold payments not yet made to Artist
for the purpose of setoff until such time as the exact amount of damages due Client from Artist is
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determined.
17. INDEPENDENT CONTRACTOR. The parties intend that Artist, in performing the services
specified herein, shall act as an independent contractor and shall have control of the work and
the manner in which it is performed. Artist is not to be considered an agent or employee of the
Client and is not entitled to participate in any pension plan, insurance, bonus or similar benefits
Client provides its employees. In the event Client exercises its right to terminate this Agreement,
Artist expressly agrees that he/she shall have no recourse or right of appeal under rules,
regulations, ordinances or laws applicable to employees.
18. EMPLOYMENT PRACTICES. Artist shall not discriminate in its performance under the
Agreement either directly or indirectly on the grounds of race, color, religion, sex, age,
national origin, or other prohibited grounds in its employment practices, and shall take
affirmative steps to ensure that applicants are employed and employees are treated during
employment without regard to race, color, religion, sex , age, national origin, or other
prohibited grounds.
19. COMPLIANCE WITH LAW .
A. Artist shall comply with all applicable federal, state and local laws, rules and regulations
applicable to the Artist and his/her work hereunder and shall ensure that all subcontractors
do the same. Artist represents and warrants to Client that Artist has and will keep in effect
during the term of this Agreement all licenses, qualifications and approvals of whatsoever
nature, which are legally required for Artist to practic e Artist's profession and to do the
work hereunder.
B. Artist agrees to abide by the requirements of the Immigration and Control Reform Act
pertaining to assuring that all newly -hired employees of Artist performing any services under
this Agreement have a le gal right to work in the United States of America, that all required
documentation of such right to work is inspected, and that INS Form 1 -9 (as it may be
amended from time to time) is completed and on file for each employee. Artist shall make
the required documentation available upon request to Client for inspection.
20. WORK PRODUCT AND ACCEPTANCE OF WORK
A. Upon the Client's acceptance of the work required by this Agreement as complete the Client
or Master Association shall have no obligation to display or maintain any physical works or
art or projects constructed using Artist's conceptual design for any particular time and
within the scope of its legal authority . Client and Master Association may in their sole
discretion remove, relocate, restore, modify or destroy the physical works or art or projects
constructed using Artist's conceptual design at any time after the completion of the project.
Client and Master Association owe no obligation to Artist to maintain the work.
B. As to the Client, the Master Association and their agents, employees and contractors, the
Artist hereby waives any and all rights he may have to prevent or cause the prevention of
the removal, relocation or destruction of the project once constructed; or to seek other
relief in connection with any such removal or destruction, pursuant to Title 17, Section 106A
of the United States Code, or pursuant to Section 987 of the California Civil Code as such
sections now exist or may hereafter be amended .
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C. Within the scope of its legal authority, Client and Master Association shall have the right to
make photographs, drawings, or other two-dimensional reproductions of the work and the
conceptual design without prior consent of the Artist if used solely for non -commercial
purposes, advertising, descriptive brochures, and similar purposes.
D. Final Acceptance. Artist shall advise client in writing when Artist has completed all obligations,
services, and deliverables under this agreement. The work shall not be officially accepted by
the Client unless the City of Dublin has also issued a determination of final acceptance. Client
shall make a good faith effort to promptly request a determination as to final acceptance from
City.
21. OWNERSHIP AND RISK OF LOSS. Except in the case of early termination of this agreement, title
to the artwork shall transfer from Artist to Client or Master Association upon Client’s final
acceptance of the work. Title transfer shall be self -executing upon Client’s final acceptance of the
work. Artist will cooperate in providing Client or Master Association any title transfer documents
that Client or Master Association may request or require during or after the term of this agreement.
The risk of loss or damage to the artwork shall be borne solely by Artist until del ivery of the artwork
to the property. Artist shall take steps to protect the artwork from loss or damage until final
acceptance by Client.
22. RIGHT TO ADEQUATE ASSURANCE OF PERFORMANCE. Each party to this Agreement
undertakes the obligation that the other's expectation of receiving due performance will not be
impaired. When reasonable grounds for insecurity arises with respect to the performance of
either party, the other may in writing demand adequate assurance of due performance, and until it
receives such assurance, may, if reasonable, suspend any performance for which the agreed
return has not been received. "Reasonable" includes not only the conduct of a party with respect to
other agreements with parties to this Agreement or others. After receipt of a justified demand,
failure to provide within a reasonable time, but not exceed fifteen (15) days, such assurance of due
performance as is adequate under the circumstances of the particular case is a repudiation of this
Agreement. Acceptance of any improper delivery, service or payment does not prejudice the
aggrieved party's right to demand adequate assurance of future performance.
23. CONFIDENTIALITY. Artist shall treat all information obtained from Client in the performance of this
Agreement as confidential and proprietary to Client. Artist shall treat all records and work product
prepared or maintained by Artist in the performance of this Agreement as confidential. Artist agrees
that it will not use any information obtained because of the performance of work for any purpose other
than fulfillment of Artist's scope of work. Artist will not disclose any information prepared for Client, or
obtained from Client or obtained as a consequence of the performance of work, to any person other
than Client, or its own employees, agents or subcontractors, who have a need for the information for
the performance of work under this Agreement unless such disclosure is specifically authorized in
writing by the Client. Artist shall advise Client of any request for disclosure of information or of any
actual or potential disclosure of information. Artist's obligations under this paragraph shall survive the
termination of this Agreement.
24. ACCIDENT REPORT. If any damage (including death, personal injury, or property damage) occurs in
connection with the performance of this Agreement, Artist shall promptly submit to the Client a
written notice of such accident with the following information:
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A. Name and address of the injured or deceased person(s);
B. Name and address of any witness;
C. Name and address of Artist's insurance company; and
D. A detailed description of the damage and whether any Client property was involved.
25. ELECTRONIC COMMUNICATIONS. During the course of this Agreement, communications may
occur through sending, receiving or exchanging electronic versions of documents and e-mails using
commercially available computer software and Internet access. Artist and the Client acknowledge
that the Internet is occasionally victimized by the creation and dissemination of so-called viruses or
similar destructive electronic programs. Artist and the Client view the issues raised by these viruses
seriously and have invested in document and e-mail scanning software that identify and reject files
containing known viruses. Artist agrees to update its system with the software vendor's most current
releases at regular intervals. Because of the virus scanning software, the respective computer
systems of the parties may occasionally reject a communication. The Parties acknowledge that this
occurrence is to be expected as part of the ordinary course of business . Because the virus
protection industry is generally one or two steps behind new viruses, neither party can guarantee
that, its respective communications and documents will be virus free. Occasionally, a Virus will
escape and go undetected as it is passed from system to system. Although each party will use
all reasonable efforts to assure that its communications are viruses free, neither party warrants
that its doc uments will be virus free. Each party agrees to advise the other if it discovers a virus
in its respective system that may have been communicated to the other party.
26. ELECTRONIC OR MAGNETIC DATA. If the Scope of Work requires that Artist provide
documents in electronic or magnetic formats, they shall be provided in a manipulative form.
Client recognizes that electronic or magnetic data and its transmission may be damaged, may
develop inaccuracies during use, and may contain viruses or other destructive programs, and
that software and hardware operating systems may become obsolete. Artist shall not be liable
for any loss of use, profit, or any other damages arising from Client's reuse, misuse,
modification, or misinterpretation of the data submitted in electronic or magnetic form. Nothing
contained in this paragraph shall affect the indemnification or standard of care required
hereunder for Artist with respect to Artist’s work and work products delivered in hard copy.
27. GENERAL PROVISIONS.
A. Headings. The heading titles for each paragraph of this Agreement are included only as a
guide to the contents and are not to be considered as controlling, enlarging, or restricting
the interpretation of the Agreement.
B. Severability . If any term of this Agreement (including any phrase, provision, covenant, or
condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the
Agreement shall be construed as not containing that term, and the remainder of this
Agreement shall remain in full force and effect; provided, however, this paragraph shall not
be applied to the extent that it would result in a frustration of the parties' intent under this
Agreement.
C. Governing Law. Jurisdiction. In addition, Venue. The interpretation, validity, and
enforcement of this Agreement shall be governed and interpreted in accordance with the
laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this
Agreement shall be filed and heard in a court of competent jurisdiction in the County of
Alameda.
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D. Attorney's Fees. In the event any legal action is commenced to enforce or interpret this
Agreement, the prevailing party is entitled to reasonable attorney's fees, costs, and expenses
incurred, whether or not such action proceeds to judgment.
E. Indemnification. Artist will indemnify, hold harmless, and defend Client (including its managers,
officers, directors, employees, agents, affiliates, successors, and permitted assigns
(collectively , "Indemnified Party") against all losses, damages, liabilities, deficiencies, claims,
actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of
whatever kind, including reasonable attorney’s fees, that are incurred by Indemnified
Party/awarded against Indemnified Party (collectively, "Losses"), arising out of any: a)
material breach or non-fulfillment of any material representation, warranty, or covenant in this
Agreement, (b) any negligent or more culpable act or omission of Artist [or its Personnel] in
connection with the performance of its obligations under this Agreement; or (c) any bodily
injury, death of any person, or damage to real or tangible personal property caused by the
acts or omissions of the Artist (including injury to Artist's personnel) or (d) the failure of Artist
to materially comply with any applicable federal, state, or local laws, regulations, or codes in
the performance of its obligations under this Agreement.
F. Assignment and Delegation. This Agreement, and any portion thereof, shall not be assigned
or transferred, nor shall any of the Artist's duties be delegated without the written consent of
Client. Any attempt to assign or delegate this Agreement without the written consent of the
Client shall be void and of no force or effect. Consent by the Client to one assignment shall
not be deemed consent to any subsequent assignment.
G. Modifications. This Agreement may not be modified orally or in any manner other than by
an agreement in writing signed by both parties.
H. Waivers. Waiver of a breach or default under this Agreement shall not constitute a
continuing waiver or a waiver of a subsequent breach of the same or any other provision
of this Agreement.
I. Time. Time is of the essence in carrying out the duties hereunder.
J. Entire Agreement. This Agreement, including all documents incorporated herein by
reference, comprises the entire integrated understanding between the parties concerning
the services described herein. This Agreement supersedes all prior negotiations,
agreements, and underst andings regarding this matter, whether written or oral. The
documents incorporated by reference into this Agreement are complementary; what is
called for in one is binding as if called for in all.
K. Each Party's Role in Drafting the Agreement. Each party to this Agreement has had an
opportunity to review the Agreement, confer with legal counsel regarding the meaning of the
Agreement, and negotiate revisions to the Agreement. Accordingly, neither party shall rely
upon Civil Code Section 1654 in order to interpret any uncertainty in the meaning of the
Agreement.
L. Signatures. The individuals executing this Agreement represent and warrant that they have
the right, power, legal capacity, and authority to enter into and to execute this Agreement
on behalf of the respective legal entities of the Artist and the Client.
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28. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day
and year first above written.
Dublin Crossing, LLC Tyler van der Stappen
By: By: _________________________
Print Name: _________ Print Name: __________________
Title: ___ Title: ____
Date: _____________ Date: _______
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11/12/2021
Tyler van der Stappen
CEO
11/15/2021
Gonzalo Rodriguez
VP
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EXHIBIT A
Project Description
Project Description:
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Artist's Responsibilities :
The Artist will complete the following tasks:
Attend a site visit; meet with client and the design team, walk-through the existing structure.
Review architectural drawings and renderings.
Review the structural and functional conditions of the project.
Review the code requirements for the project.
Produce drawings, renderings, videos, budget, and project narrative of initial concepts.
Meet with project team, as needed.
Meet with art conservator or provide art conservator report on materials to be used.
Present a proposal consisting of drawings, renderings, video rendering, budget, project narrative.
Revise the proposal based on feedback from the client and design team.
Fabricate a mock-up or a sample of the proposed artwork.
Document the sample with photos and videos.
Assist client and design team with permitting, inspection and approval process for artwork and its
support structure.
Design, engineer, fabricate and install the support structure for the artwork.
Provide all needed engineering for support structure, foundation, wind loads, and construction of the
foundation.
Procure materials and parts for full-scale artwork.
Fabricate and assemble artwork.
Attend a meeting on-site to coordinate installation and verify that support structure is ready.
Crate and ship the artwork components to the job site.
Unload and store the artwork components at the job site.
Install and anchor the artwork upon the support structure, including any needed crane/rigging.
Document the final installation with photographs and video.
Provide final statement and drawings.
Create a maintenance manual for the artwork.
Comply with [Contractor] site logistics and safety plans.
Attend meeting with the City of Dublin to review logistics and "overhead work."
All install work must be at prevailing wage rate.
Client and Design Team Responsibilities:
The client and design team will complete the following tasks:
Review artist's proposal and provide feedback .
Obtain and assume the cost of any necessary permits, inspections and approvals for artwork from
local authorities.
Meet with artist's installer to coordinate delivery and installation of artwork components.
Provide a place to store the artist's materials during installation.
Process invoices net 30 days from the end of the month .
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EXHIBIT B
Schedule of Performance & Compensation Schedule
The artist will complete the tasks described under Artist’s Responsibilities in this agreement for a total
fee twenty eight thousand dollars.
Costs
Engineering $ 15,000
Fabrication $ 9,000
Delivery & Installation $ 4,000
Total Cost $ 28,000
Payment Schedule
1. Due upon acceptance of proposal (50%)$ 14,000
2. Due upon notice to proceed with installation (25%)$ 7,000
3. Due upon final acceptance of artwork (25%)$ 7,000
Schedule
1. Acceptance of proposal December 31, 2022
2. Notice to proceed with installation December 31, 2022
3. Completion of installation December 31, 2022
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TV
TV
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{7288.01/00572604.1}
EXHIBIT D
Bond Estimates
Faithful Performance: $1,970,401.25
Labor and Materials: $1,970,401.25
3673321.1
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