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HomeMy WebLinkAbout4.06 CCLibraryArtistsCITY CLERK File # 1:110VO-0� AGENDA STATEMENT CITY COUNCIL MEETING DATE: November 6, 2001 SUBJECT: Civic Center Library Artist Contracts Report prepared by: Herma Lichtenstein, Parks & Facilities Development Manager ATTACHMENTS: 1) Artist Agreement with Evans and Brown 2) Artist Agreement with Robert Ellison 3) Artist Agreement with Peter Mollica RECOMMENDATION: UO 1) Approve Artist Agreements and authorize Mayor to execute Agreements FINANCIAL STATEMENT: Sufficient funds are available in the project budget to execute the Agreements DESCRIPTION: At the start of the Civic Center Library project a portion of the budget was set aside to include art as part of the overall design. The areas that were chosen for commissioned artwork are the children's area, the outdoor entry plaza and the glass rotunda. Each area was assigned a portion of the art budget; the children's area $25,000, the rotunda, $50,000 and the plaza, $100,000. The artists chosen to perform the work were; Robert Ellison, sculptor for the plaza, Peter Mollica, stained glass artist for the rotunda -and the muralist team, Evans and Brown for the children's area. The artists prepared mock-ups of their proposed designs and presented them to the Heritage and Cultural Arts Commission and to City Council for approval. Staff was directed to negotiate agreements for the fabrication of the artist's work. When Peter Mollica reviewed the agreement for the rotunda artwork, Staff learned that there. had been miscommunication regarding the amount of the commission. The Request for Proposals indicated that the commission for the rotunda artwork was $55,000, not the budget of $50,000. Mr. Mollica indicates that he cannot complete the artwork for $50,000, thus the agreement with Mr. Mollica is for $55,000. In reviewing the overall project budget for the library, Staff believes the additional $5,000 can come from the construction contingency. The attached agreements reflect the scope of services for each artist as well as the schedule for completion of the work that has been coordinated with the building construction schedule. It is the recommendation of Staff that the City Council approve the Artist Agreements for Evans and Brown, Robert Ellison and Peter Mollica and authorize the Mayor to execute the Agreements. ------------:-------- — ------------------------------------------ COPIES TO. Artists/Lynne Baer, Art Consultant ITEM NO. 001- H:\Herma\Council statements\Library art contracts.doc 442> AGREEMENT BETWEEN THE CITY OF DUBLIN AND EVANS AND BROWN RELATING TO THE PROVISION OF ARTISTIC SERVICES FOR A PUBLIC ART PROJECT This Agreement is made by and between the City of Dublin, a political subdivision of the State of California (hereafter "City"), and Evans & Brown (hereafter "Artist") this day of ., 2001. RECITALS WHEREAS, the' City requires the services of Artist'to perform artistic services described in the Agreement for a public art project; and WHEREAS, the City is authorized by Section 2.36.050 of the Dublin Municipal Code to contract for the specialized services of the artist contemplated by this Agreement; and WHEREAS, Artist is qualified and desires to perform the artistic services required by the City as set forth in this Agreement; and WHEREAS, the City Council, authorized an agreement between City and Artist for the preparation of a final design and fabrication for the work to be prepared for the Dublin Public Library public art project (hereafter '~/ork"). NOW, THEREFORE,~in consideration of the mutual promises contained herein, the parties hereto agree as follows: AGREEMENT ARTICLE 1. SCOPE OF WORK 1.1. For services rendered herein, City shall pay Artist a sum not to exceed $25,000 for work performed during the period beginning June 2001 through completion of the Dublin Public Library. Artist shall furnish services as described in Exhibit A of this Agreement. Terms and conditions for payment are attached in Exhibit B of this Agreement. 1.2. The City shall be responsible for providing the Artist, without cost, copies of designs, drawings, reports, and other relevant data needed by the Artist to design and execute the Project. 1.3. Evans & Brownwill create and install a.trOmpe I'oeil mural forthe children's room of the New Public Library. 1.4. The Artist shall begin work after the execution of this Agreement. Agreement for Artistic Services ATTACHMEN'~' 1 Page 1 of 13 ., 2001 / ARTICLE 2. CHANGES IN SCOPE AND ADDITIONAL WORK 2.1. The Artist shall, whenever required during'the term of this Agreement, present to the City in writing, draWing, or other appropriate media for further review and approval any significant changes in the scope, design, color, size, material, Utility, and support requirements, teXture, or location of the site or the Work. A significant change is any change which affects the installation, scheduling, site preparation, or maintenance of the Work, or the concept of the Work as represented i.n the original approved design. 2.2. The Artist shall be 'obligated to perform the services called for in Exhibit A. The Artist and the City agree that the Artist shall retain artistic control of his/her services in the performance of the services under .this Agreement, Subject only to the limitations imposed in Exhibit A. 2.3'. Not withstanding the provisions of Section 2.2 above, the City may, at any time, request the Artist in writing to revise portions of the services that he/she has previously completed in a satisfactory manner; delete portions of the Scope of the Work that the Artist has not yet performed; perform additional work beyond the Scope of Work to be provided in Exhibit A; or make other changes within the General Scope of the Work to be performed under this Agreement. In the event of such a written request, the Artist may, but shall not be obligated to agree to any such request unless not doing so will significantly impact the project's schedule, cost, or installation. 2.4. In the event the request for change is agreed to by the Artist, this Agreement shall be amended, in writing, specifying the agreed changes, including, but not limited to, a description of services, additional budget, payment schedule, and timetable. 2.5. In the event that the Artist does not agree to the request, the City shall be entitled to terminate the Agreement for cause pursuant to Article 17 herein. 2.6. No services for which additional compensation will be charged shall be provided by the Artist without the prior wdtten authorization by the City. ARTICLE 3. RESPONSIBILITY OF THE ARTIST 3.1. The Artist agrees that an essential element of this Agreement is the skill and creativity of the Artist. The Artist shall not assign the creative or artistic portions of the Work to another party for the production of the Work without the written consent of the City. Failure to conform to this provision may be cause for termination of this Agreement, at.the sole option of the City. Agreement for Artistic Services Page 2 of 13 ,2001 3'.2. The Artist shall be responsible for providing services described in Exhibit A, including but not limited to, the quality and timely completion of the services. The Artist shall be responsible for designing the Work so that it can be constructed without exceeding the approved overall budget for the project. If the installation requirements exceeds the project budget, it will be the artist's responsibility to redesign at their expense to meet the project budget. The Artist shall', without additional compensation, correct or revise any errors, omissions, or other deficiencies in his/her Work. 3.3. In the event the services of the Artist are integrated into, combined, or otherwise coordinated with services by third parties not within the control of the Artist, the Artist shall not be responsible for such third party services. If any part of the Artist's Work depends for proper execution or results upon the work of the City, or a third party responsible to the CitY, the Artist shall, prior to proceeding with his or her Work, promptly report to the City any apparent discrepancies or other defects in such other work which renders it unsuitable for proper execution and results by the ¢,rtist. The Artist shall not be responsible for any liability or failure to fulfill his/her obligations because of such discrepancies or defects. Failure of the Artist to report adiscrepancy or defect shall constitute an acceptance of the City's or third party's work as fit and proper to receive Artist's Work. Any costs caused by defective or ill-timed work shall be borne by the party responsible therefore. Nothing in this section shall limit the responsibility of the Artist to take all reasonable steps to coordinate his/her Work with the work of the City or of a third party on the project. 3.4. If the Artist is involved in the execution, fabrication, transportation, inspection, and/or installation of the Work, the following provisions shall apply: a. The Artist shall, if and when wOrking on City property, supervise such clean-up as may be reasonably requested by the City. At the close out of the Artist's Work, the Artist shall remove his/her equipment, excess materials, etc., promptly and as requested by City. b. The city and any third party contractor on the project shall notify the Artist of their operation, construction, and maintenance schedules in and around the area where the Artist's Work is to be performed. The Artist shall perform his/her services in a manner and time so as not to cause ' interference with any of the operations, construction, or maintenance of the City or third party contractor. In the event of a conflict between the schedules of the contractor and/or the City and the Artist, the conflict will be resolved by the City. If such delay prevents Artist from complying with the schedule in Exhibit A, Artist shall not be considered to have breached this Agreement, and Artist and City shall agree to amend the schedule in writing. c. The Artist shall complete the fabrication and installation of the Work in substantial conformity with the attached Exhibit A, Scope of Work. Agreement for Artistic Services Page 3 of 13 ,200t 3.5. The risk of loss or damage to the Work shall be borne by the Artist until final acceptance by City, and the Artist shall take such measures as are necessary to protect the Work from loss or damage until final acceptance by City, except that the risk of loss or damage shall be borne by the City prior to final acceptance dudng such period of time as the partially or whollY completed Work is in the custody, control, or supervision of the City or its agents for the purposes of transporting, storing, installing, or performing any other ancillary services to the Work. ARTICLE 4. WARRANTIES/STAN DARDS 4.1. The Artist warrants that: (a) the design of Work being commissioned is the original product of his/her own creative efforts; (b) unless otherwise stipulated, the work is original, that it is an edition of one (1), and that the Artist shall not sell or reproduce the Work, or allow others to do so, without the prior written consent of the City. 4.2. The Artist shall guarantee his/her Work to be free from faults of material and workmanship for a period 'of one (1) year after final acceptance by the City. The Artist shall deliver the Work to the City free and clear of any liens from any source whatever. The foregoing guarantees shall apply only to the Work that is entirely that of the Artist or persons responsible to the Artist, as installed, and shall not apply to materials or workmanship 'of projects in which the Work of the Artist is integrated or combined, or to materials purchased, acquired, or installed by a person or entity not responsible to the Artist. 4.3. The Artist shall faithfully perform the work required under this Agreement in accordance with standards of care, skill, training, diligence, and judgment provided by highly competent professionals who perform work of a similar nature to the Work described in this Agreement. Artist shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the removal of any such persons, Artist shall, immediately upon receiving notice from City of such desire of City, cause the removal of such person or persons, unless in the Artist's sole opinion, the skill or creativity of such person or persons is essential to the creation of the Work. ARTICLE 5. COMPENSATION 5.1. The Artist shall be paid for serVices satisfactorilY rendered pursuant to this Agreement in accordance with the terms herein, Exhibits A and __B, and subsequent adjustments, changes, or additions as specifically provided for in this Agreement. Such payment shall be full compensation for work performed and services rendered, for all supervision, labor, supplies, materials, equipment, or use thereof, for taxes, and for all other necessary incidentals including transportation and storage of Work. 5.2. The amount and schedule of payments to the Artist are contained in the attached Exhibit B, Compensation and Schedule of Payments. Payments under this Agreement shall not exceed a maximum amount of $25,000, subject only to Agreement for Artistic Services Page 4 of 13 ,2001 adjustments, changes, or additions as specifically provided for in this Agreement (hereafter "Total Price"). 5.3. In the event the Artist incurs costs in excess of the Total Price, the Artist shall pay such excess from his/her own funds, the City shall not be required to pay any part of such excess, and the Artist shall not have not claim against the City on account thereof. 5.4. The Artist shall submit invoices to the City according to the schedule provided for in Exhibit B. Such invoices shall be in the form requested by the City. 5.5. In the event that the City determines that Work for which it has been invoiced does not meet the contract specifications, and that it intends to withhold payment, the City shall provide detailed written notice to the Artist within fifteen (15) days of receipt of invoice, specifying the failure of performance for which the City intends to withhold payment. The Artist shall thereafter meet contract standards to the satisfaction of the City or advise the City that he/she disputes the City's determination that the specifications have not been met. 5.6. The City shall pay all invoices that meet contract specifications within thirty (30) days of receipt of invoice. 5.7. No payment to the Artist for any work performed or services rendered shall constitute a waiver or release by the City of any claims, rights or remedies it may have against the Artist under this Agreement or by law, nor shall such payment constitute a waiver, remission, or discharge by the City of any failure or fault of the Artist to satisfactorily perform the work as required under this Agreement. 5.8. The services to be required of the Artist under this Agreement shall be completed in accordance with the schedule for completion of the Work, as provided for in Exhibit A, provided that such time limits may be extended or otherwise modified by written agreement between the Artist and the City. 5.9. If, when the Artist completes fabrication or procurement of the Work in accordance with the approved schedule and notifies the City that the Work is ready for installation, the Artist is delayed from installing the Work within the time specified in Exhibit A as a result of the construction of the site for the Work not being sufficiently complete to reasonably permit installation of the Work therein, or if the City otherwise does not make the site available to the Artist in accordance with the approved schedule, the City shall promptly reimburse the Artist for reasonable transportation and storage costs incurred for the period between the time provided in Exhibit A for commencement of installation and the date upon which the site is made available to the Artist for installation of the Work. 5.10. The Artist shall bear any transportation and storage costs resulting from the completion of the Work prior to the time provided in the schedule for installation of Agreement for Artistic Services Page 5 of 13 ,2001 the Work. The artist will be responsible for the safe keeping and or repair of artwork prior to installation of the Work. 5.11. The City shall grant a reasonable extension of time to the Artist in the event that there is a delay on the part of the City in performing its obligations under this Agreement or in completing the underlying capital project. Failure to fulfill contractual obligations due to conditions beYond either party's reasonable control will not be considered a breach of this Agreement, as long as such obligations shall be suspended only for the duration of the conditions causing the delay. 5.12. For delays in the installation of the Work beyondthe schedule provided for under this Agreement caused by factors reasonably under the Artist's Control, the City agrees to accept fifty dollars ($50.00) per day as liquidated damages for such delay. ARTICLE 6. ARTIST'S RIGHTS 6.1. The City shall, at its expense, prepare and install at appropriate locations, after consultation with the Artist, a.plaque or sign identifying the Artist, the title of the Work, and the year of completion. The City shall also reasonably maintain such notice in good repair against damages due to normal wear and tear over time, vandalism, and the elements. 6.2. The City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work.' The City shall reasonably assure that the Work is properly maintained and protected, taking into account the recommendations of the Artist as stated in the maintenance program provided by the Artist. 6.3. The City agrees that it shall not intentionally damage, alter, modify, change, or substantially relocate the Work of the Artist without first conferring with the Artist and obtaining the prior written approval of the Artist to the proposed modification, change, or substantial relo.cation. 6.4. Notwithstanding the Artist's refusal to provide (or the City's failure for any reason otherwise to obtain) the Artist's written approval provided for in Section 6.3 above, the City, in its sole discretion, shall have the right to remove any work of art providing the following terms and conditions are met: a.. The removal proposal shall first be submitted to and considered by the City Council. b. The City Council shall have the non-delegable duty to decide that a work of art shall be removed. The decision to remove shall not be made by the City Council until it has reviewed the removal proposal. c. In the event that the City Council decides to remove the Work, the Artist shall have the first right of refusal to purchase his/her Work, if it stands alone and is not integrated into a larger artwork, building, or Agreement for Artistic Services Page 6 of 13 ., 2001 structure and can be removed without expense to the City. The Artist shall also have the right to have his/her name removed from the Work, as well as from the plaque installed pursuant to Section 6.1. 6.5. The City shall have the right to determine, after consultation with a professional conservator, when and if repairs and restorations to the Work will be made. During the Artist's lifetime, the Artist shall havethe right to approve all major repairs and restorations, which approval the Artist shall not unreasonably withhold. If the Artist unreasonably falls to approve any repair or restoration, the City shall have the right to make or supervise significant repairs and restorations. In the eVent that the City makes repairs or restorations not approved by the Artist, the Artist shall have the right, at his/her sole option, to have his/her name and association with the Work severed. To the extent practical, the Artist, during his/her lifetime, shall be given the opportunity to make or supervise significant repairs and restorations and shall be paid a reasonable fee for any such service, if the City and the Artist shall agree, in writing, prior to the commencement of any significant re pairs or restorations, u pon the Artist's fee for such services. 6.6. All repairs and restorations, whether performed by the Artist, the City, or third parties responsible to the Artist or the City, shall be made in accordance with professionally recognized principles of conservation of artworks. ARTICLE 7. COPYRIGHTS 7.1. The Artist shall retain all copyright and other rights in and to the Work created under this Agreement, other than ownership of the Work itself. Artist shall grant to the City an irrevocable license to graphically depict the artwork in any non- commercial manner whatsoever. For the purpose of this limitation, the graphic depiction of the artwork(s) on materials designed to promote the City shall be deemed to be a non-commercial use. 7.2. If for any reason the proposed design is not implemented, all rights to the proposed artwork shall be retained by the Artist. 7.3. The Artist agrees that all work performed under this Agreement shall comply with all applicable patent, trademark, and copyright laws,, rules, regulations, and codes of the United States. The Artist further agrees that the Work will not utilize any protected patent, trademark, or copyright in performance of work under this Agreement, unless the Artist has obtained proper permission and all releases and other necessary documents and provided copies of such releases and documents to City. If the Artist specifies any material, equipment, process, or procedure that is protected, the Artist shall disclose such patents, trademarks, and copyrights in the construction drawings and technical specifications. 7.4. The Artist agrees to release, indemnify, and hold harmless the City, its officers and employees from any and all claims, damages, suits, costs, expenses, Agreement for Artistic Services Page 7 of 13 ., 2001 liabilities, actions, or proceeding of any kind resulting from the performance and proper installation of work under this Agreement that infringes upon any patent, trademark, or copyright protected by law. 7.5. All reproductions by the City shall contain a credit to the ARTIST and a copyright notice substantially in the following form: © Evans & Brown, 2003. The Artist shall use his/her best efforts to include a credit reading substantially "An original work commissioned by the City of Dublin, California" in any public showing under the Artist's control of reproductions of the Work. ARTICLE 8. NO EMPLOYER/EMPLOYEE OR AGENCY RELATIONSHIP 8.1.. No relationship of employer and employee is created by this Agreement, it being understood that Artist shall act hereunder as an independent contractor and not as an employee of City. City shall have the right to control Artist's work only insofar as the results of Artist's services rendered pursuant to this Agreement. Artist shall not have any claim under this Agreement or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, retirement benefits, Social Security, disability, Worker's Compensation or unemployment insurance benefits, civil service protection, or employee benefits of any kind. Artist shall be solely liable for and obligated to pay directly all applicable taxes, including but not limited to Federal and State income taxes. Artist shall indemnify and hold City harmless from any and all liability that City may incur because of Artist's failure to Pay such taxes. Notwithstanding the foregoing, if the City determines that pursuant to state and federal law, Artist is an employee for purposes of Federal and State tax withholding, City shall, upon two weeks notice to Artist,. withhold from the payments to Artist hereunder federal and state payroll taxes and pay said sums over to the Federal and State governments. Although City shall control only the results of Artist's services under this Agreement, Artist agrees to perform his/her said work and functions at all times in strict accordance with currently approved methods and practices in his/her field; in a competent, efficient, timely, and satisfactory manner; and in accordance with the standards required by the City. 8.2. Nothing contained in this Agreement shall be construed as limiting the right of Artist to engage in his/her profession separate and apart from this Agreement so long as such activities do not interfere with the performance by Artist of his/her obligations as set forth herein and in Exhibit A. 8.3 EXcept as City mayspecify in writing, Artist shall h'ave no aUthority., express or implied, to act on behalf of City in any capacity whatsoever as an agent. Artist shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. Agreement for Artistic Services Page 8 of '13 ,, 2001 ARTICLE 9. CONFORMITY WITH LAW AND SAFETY 9.1. Artist shall observe and comply with all applicable laws, ordinances, codes and regulatiOns of governmental agencies, including all. provisions of the Occupational Safety and Health Act of 1979 and all amendments thereto, and all applicable federal, state, municipal, and local safety regulations. All services performed by Artist must be in accordance with those laws, ordinances, codes, and regulations. Artist shall indemnify and save City harmless from any and all liability, fines, penalties, and consequences from. any noncompliance or violations of such laws, ordinances, codes, and regulations. 9.2. If death, serious personal injury or substantial property damage occurs in connection with the performance of this Agreement, Artist shall immediately notify the City Manager by telephone. Artist shall promptly submit to City a written report, in such form as may be required by City, of all accidents that occur in connection with this Agreement. The report must include the following information: (1) name and address of the injured or deceased person(s); (2) name and address of Artist's subcontractor, if any; (3) name and address of Artist's liability insurance carrier; and (4) a detailed description of the accident and whether any of City's equipment, tools, material, or staff were involved. ARTICLE 10. CONFLICT OF INTEREST No officer, member, or employee of City and no member of its governing bodies shall have any pecuniary interest, direct or indirect, in this Agreement or the proceeds thereof. Neither Artist nor any member of Artist's family shall serve on a City board or committee or hold any position that, either by rule, practice, or action, nominates, recommends, or supervises Artist's operations or authOrizes funding to Artist. ARTICLE 11. ASSIGNMENT OF CONTRACT Nothing contained in this Agreement .shall be construed to permit assignment or transfer by Artist of any rights under this Agreement and such assignment or transfer is expressly prohibited and void. ARTICLE 12. CONFIDENTIALITY OF INFORMATION Confidential information is defined as all information disclosed to Artist that relates to the City's past, present, and future activities, as well as activities under this contract. Artist will hold all such information in trust and confidence except as otherwise required by law. Upon cancellation or expiration of this Agreement, Artist will return to City all written or descriptive matter that contains any such confidential information. ARTICLE 13. NON-DISCRIMINATION Agreement for Artistic Services Page 9 of 13 ,2001 Artist assures that he/she will comply with the Americans with Disabilities Act and with Title VII of the Civil Rights Act of 1964, and that no person shall, on the grounds of race, creed, color, disability, gender, sexual orientation, national origin, age, religion, Vietnam era Veteran's status, political affiliation, or any other non-merit factors be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under this Agreement. ARTICLE 14. USE OF CITY PROPERTY Artist shall not use City premises, propertY (including equipment, instruments, and supplies), or personnel for any purpose other than in the performance of his/her obligations under this Agreement. ARTICLE 15. FEDERAL AND STATE AUDITS Until the expiration of five years after, the furnishing of any services pursuant to this Agreement, Artist shall make available, upon written request, to the Federal/State government or any of their duly authorized representatives, this Agreement and such books, documents, and records of Artist that are necessary to 'certify the nature and extent of the reasonable cost of services to City. If Artist enters into any Agreement with any related organization to provide services pursuant to this Agreement with a value cost of $10,000 or more over a twelve-month period, such Agreement shall contain a clause to the effect that until the expiration of five years after the furnishing of services pursuant to such subcontract, the related organization shall make available, upon written request, to the Federal/State government or any of their duly authorized representatives, the subcontract, and books, documents and records of such organization that are necessary to verify the nature and effect when and if it is not required by law. ARTICLE 16. MODIFICATION No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto. ARTICLE 17. TERMINATION 17.1. Either party may terminate this Agreement with or without cause by providing thirty (30) days notice, in writing to the other party. Upon the expiration date of said notice, this Agreement shall become of no further force or effect whatsoever and each of the parties shall be relieved and discharged herefrom. 17.2. In the event that the Agreement is terminated by the City without cause, the City shall pay the Artist for all work performed and service rendered up to the effective date of the termination. The City shall have no rights to the Artist's creative work, designs, or unfinished artwork(s). Agreement for Artistic Services Page 10 of 13 ., 2001 17.3. In the event that the Agreement is terminated by the Artist without cause, the Artist shall promptly reimburse the City for all payments made under this Agreement prior to the termination by the Artist. 17.4. In the event that the City determines that the Artist has substantially failed to fulfill his/her obligations as provided under this Agreement, the City shall provide the Artist with written notice detailing the specific obligations which the City claims the Artist has failed to fulfill and notifying the Artist that he/she is deemed to be in breach of.the Agreement. If the breach is not cured or if the City and the Artist cannot agree on a schedule for curing the breach, the Agreement will be deemed'terminated on a date specified by the City, which will be no sooner than ten (10) days from the date of issuance of the notice. 17.5. If, because of death, unavailability, or any other occurrence, Artist cannot possibly render services or perform work under this Agreement, the Agreement shall be deemed terminated. ARTICLE 18. HOLD HARMLESS/INDEMNIFICATION 18.1. Artist shall indemnify, defend, and hold harmless City and its officers and' employees againSt liability for. injury or damage caused by a negligent act or omission of Artist in the performance of this Agreement and shall hold City harmless from any loss or damages directly or indirectly resulting to the City or its officers and employees on account of the performance or character of the work, unforeseen difficulties, accidents, occurrences, or other causes predicated on active or passive negligence of the Artist or any subcontractor of Artist. Artist shall indemnify, defend, and hold harmless the City, its officers, officials, directors, employees and agents from and against any or all loss, liability, expense, claim, costs (including costs of defense), suits, and damages of every kind, nature and description directly or indirectly arising from the performance of the work. This paragraph shall not be construed to exempt the City, its employees, and officers from its own fraud, willful injury, or violation of law whether willful or negligent. For purposes of Section 2782 of the Civil Code the parties hereto recognize and agree that this agreement is not a construction contract. By execution of this Agreement, Artist acknowledges and agrees that it has read and understands the provisions hereof and that'this paragraph is a material element of consideration. 18.2. The City shall indemnify the Artist against liability for injury or damage caused by a negligent act or omission of the City, its officers and employees in their performance of this Agreement and shall hold the Artist harmless from any loss occasioned by such negligent act or omission. 18.3. Upon final acceptance of the Work,'the City shall, to the extent permitted by law, indemnify, and hold harmless the Artist against any and all claims or liabilities that arise thereafter in connection with the Work performed under this Agreement, except claims by the City against Artist and claims that may occur as a result of the Artist's breach of the Warranties provided elsewhere in this Agreement, Agreement for Artistic Services Page 11 of 13 .2001 ARTICLE 19. INSURANCE/SELF-INSURANCE Artist shall at all times during the terms of this Agreement with the City maintain in force those insurance policies and bonds as designated In the attached Exhibit C and will comply with all those requirements as stated herein. ARTICLE 20. EMPLOYMENT ELIGIBILITY Persons providing services under this contract will be required'to provide the necessary documentation to establish identity and employment eligibility as required by the Immigration Reform and Control Act of 1986. Failure to provide the necessary documentation will result in the termination of contract as required by the Immigration Reform and Control Act of 1986. ARTICLE 2'1. SEVERABILITY In the event any of the provisions, or applications thereof, of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions, or applications thereof, shall not be affected. ARTICLE 22. TIME IS OF THE ESSENCE The parties agree that in the performance of the terms and requirements of this Agreement by the Artist that time is of the essence. Artist shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary for satisfactory performance of Artist's obligations pursuant to this Agreement. ARTICLE 23. LICENSES~ PERMITS~ ETC. Artist represents and warrants to City that he/she has all licenses, permits, qualifications and approvals of whatsoever nature that are legally required for Artist to practice his/her profession. Artist represents and warrants to City that Artist shall, at his/her sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required for Artist to practice his/her profession. ARTICLE 24. GOVERNING LAW This Agreement shall be governed by the laws of the State of California and any suit or action by either party shall be brought in the County of Alameda, California. ARTICLE 25. ATTORNEYS FEES If a party brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party is entitled to reasonable Agreement for Artistic Services Page 12 of 13 ., 2001 attorneys' fees in addition to any other relief to which that party may be entitled. Such fees may be set by the court in the same action or in a separate action brought for that purpose. ARTICLE 26. NO WAIVER The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. ARTICLE 27. SURVIVAL All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Artist survive the termination of this Agreement. ARTICLE 28. EXECUTION IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the day and year first written above. CITY OF DUBLIN Mayor ARTIST Attest: City Clerk Approved as to form: City Attorney j:\WPD\Mnrsw~,114\001 ~2001 ~Agree~artist._1105.doc Agreement for Artistic Se rvices Page 13 of 13 ,2001 EXHIBIT A SCOPE OF SERVICES Summary of Scope of Artist's Services The intent of this Agreement is to define the work to be done in designing, planning, fabricating, transporting and installing artwork for Dublin Public Library in the City of Dublin, California. Description of Artwork: Evans & Brown is to design and execute a mural for the two walls flanking the storytelling area in the Children's Library. The design is to depict a series of floating, whirling pieces of brightly colored paper. The pieces of paper will have silhouettes cut out of them, and the cut-outs will be used in the composition. The silhouettes will range from geometric shapes, animals and profiles to images that relate to the history of Dublin. All of the images in the mural are to be painted in trompe I'oeil ("to fool the eye") and the resulting illusion will make the colored paper images appear to stand out from the surface of the existing wall. An element or two in the murals will be used in other parts of the Children's Library. These other areas are to be determined at a later date. This project will be divided into the following phases: 1) Design Phase: Design concept as currently approved. Terms: A payment of $1,500 has been received by Evans & Brown for the design portion of the project. 2) Paintinq Phase The actual painting of the artwork from the approved designs takes place at this stage. The painting phase is estimated at six to eight weeks long. Upon review and approval of the owner's representative for adherence to the original concept, Evans & Brown will bill a total of $19,675 in two invoices during the progress of the painting. 3) Installation or On-Site Phase Evans & Brown will install the canvas or muslin with a water-base adhesive. The surface must be sound and smooth, any rough patches will telegraph through the Agreement for Artistic Services - EXHIBIT A Page 1 ,2001 murals. The sheet rock must be taped, mudded, and sanded smooth. The walls must be seale~! with one primer coat and one finish coat of fiat latex paint prior to arrival on site. Evans & Brown to provide specifications. Access equipment must be provided at no cost to Evans & Brown/Evans & Brown will protect surrounding areas with tarps, etc. as necessary. On request Evans & Brown will submit a Certificate of Insurance for its installers. All work will comply with building rules and regulations. Terms: Payment for Installation is due upon completion of Installation and approval by the client. The fee for the Installation portion of the project is $3,825. Terms 1) Total Fee: $25,000 2) The total reflects all labor and materials for this project. 3) If client confirmed dimensions vary more than 1.5% larger than dimensions given in the children's storytelling area, an additional fee will be charged to cover the increase in size. 4) All estimates reflect design time and painting unless otherwise noted. A)Evans & Brown will submit the final mock-up (based on the original presented to the Dublin City Council) of the proposed mural for approval by the City' Representative prior to commencing work on the mural.. If necessary, Evans & Brown will make minor adjustments to the mock, up based on comments by the client. An additional fee will be required for further design options. If the final approved design proves to deviate significantly from the original concept Evans & Brown will inform the client regarding additional funds required to paint it. 5) Suitable scaffold or ladder must be supplied by client at no cost to Evans & Brown. Schedule: Murals to be installed August 2002. Agreement for Artistic Services - EXHIBIT A Page 2 ,2001 EXHIBIT B CONDITION & TERMS OF PAYMENT 1. The City agrees to pay Artist a fixed fee not to exceed $25,000, which shall constitute full compensation for all services to be performed and materials furnished by the Artist under this Agreement. The fee shall be paid in the following installments, each installment to represent full, final and non-refundable payment for all services and materials provided prior to the due date thereof: City will pay Artist upon submission of a written invoice from Artist to City. As early as practical, but not later than thirty (30) calendar days following receipt of said invoice, City shall pay Artist the full face value of the invoice. Design Phase: $1,500 Painting Phase: Two payments totaling $19,675 Installation Phase: $3,825 Page 1 Agreement For Artistic Services - EXHIBIT B ,2001 EXHIBIT C INSURANCE REQUIREMENTS Contractor shall procure and maintain for the duration of the contract "occurrence coverage" insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, employees or subcontractors. The cost of such insurance shall be included in the Contractor's bid. a. Minimum Scope of Insurance. Coverage shall be at least as broad as: 1. Insurance Services Office form number GL 0002 (Ed. 1/73) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001.) 2. Insurance Services Office form number CA 0001 (Ed. 1/78) covering Automobile Liability, code 1 "any auto" and endorsement CA 0025. 3. Workers' Compensation Insurance as required by the Labor Code of the State .of California and Employers Liability Insurance. b. Minimum .Limits of Insurance. Artist shall maintain limits no less than: 1. General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. 3. Workers' Compensation and Employers Liability: Workers' Compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident. c. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials and employees; or the Artist shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Agreement For Artistic Services - EXHIBIT C Page I of 3 ,2001 d. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: 1. General Liability and Automobile Liability Coverages. A. The City, its officers, officials, employees and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Artist; products and completed operations of the Artist, premises owned, occupied or used by the Artist, or automobiles owned, leased, hired or borrowed by the Artist. The coverage shall contain no special limitations on the scope of the protection afforded to the City, its officers, officials, employees or volunteers. B. The Artist's insurance coverage shall be primary insurance as respects the city, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees or volunteers shall be excess of the Artist's insurance and shall not contribute with it. (3. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. D. The Artist's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Workers' Compensation and Employers Liability Coverage. The insurer Shall agree to waive all rights of subrogation against the City, its officers, officials, employees and volunteers for losses arising from work performed by the Artist for the City. 3. Professional Liability. Artist shall carry professional liability insurance in .an amount deemed by the City to adequately protect the Artist against liability caused by negligent, acts, errors or omissions on the part of the Artist in the course of performance of the services specified in this Agreement. 4. All Coverages. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Agreement For Artistic Services - EXHIBIT C Page 2 of 3 ,2001 e. Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than A:VII. f. Verification of Coverage. Artist shall furnish City with certificates of insurance and with original endorsements effecting coverage required by this clause. The certificates and endorsements for each insurance policy .are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. g. Subcontractors. Artist shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. h. Waiver. The City may approve a variation in those insurance requirements upon a determination that the coverages, scope, limits and forms of such insurance are either not commercially available or that the City's interests are otherwise fully protected. Agreement For Artistic Services - EXHIBIT C Page 3 of 3 ,2001 AGREEMENT BETWEEN THE CITY OF DUBLIN AND ROBERT W. ELLISON RELATING TO THE PROVISION OF ARTISTIC SERVICES FOR A PUBLIC ART PROJECT This Agreement is made by and between the City of Dublin, a political subdivision of the State of California (hereafter "City"), and Robert W. Ellison (hereafter "Artist") this day of. ,2001. RECITALS WHEREAS, the City requires the services of Artist to perform artistic services described in the Agreement for a public art project; and WHEREAS, the City is authorized by Section 2.36.050 of the Dublin Municipal Code to contract for the specialized services of the artist contemplated by this Agreement; and WHEREAS, Artist is qualified and desires to perform the artistic services required by the City as set forth in this Agreement; and WHEREAS, the City Council, authorized an agreement between City and Artist for the preparation of a final design and fabrication for the work to be prepared for the Dublin Public Library public art project (hereafter '~Vork"). NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree as follows: AGREEMENT ARTICLE 1. SCOPE OF WORK 1.1. For services rendered herein, City shall pay Artist a sum not to exceed $100,000 for work performed during the period beginning June 2001 through completion of the Dublin Public Library. Artist shall furnish services as described in Exhibit A of this Agreement. Terms and conditions for payment are attached in Exhibit B of this Agreement. 1.2. The City shall be responsible for providing the Artist, without cost, copies of designs, drawings, reports, and other relevant data needed by the Artist to design and execute the Project. 1.3. Robert W. Ellison will design, ship and install two welded steel columns. The columns will be 24 inches in diameter and 17 to 20 feet tall, carbon steel, primed and coated with catalyzed Urethane. Agreement for Artistic Services Page 1 of 13 ,2001 1.4. The Artist shall begin work after the execution of this Agreement. ARTICLE 2. CHANGES IN SCOPE AND ADDITIONAL WORK 2.1. The Artist shall, whenever required during the term of this Agreement, present to the City in writing, drawing, or other appropriate media for further review and approval any significant changes in the scope, design, color, size, material, utility, and support requirements, texture, or location of the site or the Work. A significant change is any change which affects the installation, scheduling, site preparation, or maintenance of the Work, or the concept of the Work as represented in the original approved design. 2.2. The Artist shall be obligated to perform the services called for in Exhibit A. The Artist and the City agree that the Artist shall retain artistic control of his/her services in the performance of the services under this Agreement, subject only to the limitations imposed in Exhibit A. 2.3. Not withstanding the provisions of Section 2.2 above, the City may, at any time, request the Artist in writing to revise portiOns of the services that he/she has previously completed in a satisfactory manner; delete portions of the Scope of the Work that the Artist has not yet performed; perform additional work beyond the Scope of Work to be provided in Exhibit A; or make other changes within the General Scope of the Work to be performed under this Agreement. In the event of such a written request, the Artist may, but shall not be obligated to agree to any such request unless not doing so will significantly impact the project's schedule, cost, or installation. 2.4. In the event the request for change is agreed to by the Artist, this Agreement shall be amended, in writing, specifying the agreed changes, including, but not limited to, a description of services, additional budget, payment schedule, and timetable. 2.5. In the event that the Artist does not agree to the request, the City shall be entitled to terminate the Agreement for cause pursuant to Article 17 herein. 2.6. No services for which additional compensation will be charged shall be provided by the Artist without the prior written authorization by the City. ARTICLE 3. RESPONSIBILITY OF THE ARTIST 3.1. The Artist agrees that an essential element of this Agreement is the skill and creativity of the Artist. The Artist shall not assign the creative or artistic portions of the Work to another party for the production of the Work without the written consent of the City. Failure to conform to this provision may be cause for termination of this Agreement, at the sole option of the City. Agreement for Artistic Services Page 2 of 13 ,2001 3.2. The Artist shall be responsible for providing services described in Exhibit A, including but not limited to, the quality and timely completion of the services. The Artist shall be responsible for designing the Work so that it can be constructed without eXceeding the approved overall budget for the project. If the installation requirements exceeds the project 'budget, it will be the artist's responsibility to redesign at their expense to meet the project budgetl The Artist shall, without additional compensation, correct or revise any errors, omissions, or other deficiencies in his/her Work. 3.3. In the event the services of the Artist are integrated into, combined, or otherwise coordinated with services by third parties not within the control of the Artist, the Artist shall not be responsible for such third party services. If any part of the Artist's Work depends for proper execution or results upon the work of the City, or a third party responsible to the City, the Artist shall, prior to proceeding with his or her Work, promptly report to the City any apparent discrepancies or other defects in such other work which renders it unsuitable for proper execution and results, by the Artist .' The Artist shall not be responsible for any liability or failure to fulfill his/her obligations because of such discrepancies or defects. Failure of the Artist to report a discrepancy or defect shall constitute an acceptance of the City's or third party's work as fit and proper to receive Artist's Work. Any costs caused by defective or ill-timed work shall be borne by the party responsible therefore. Nothing in this section shall limit the responsibility of the Artist to take all reasonable steps to coordinate his/her Work with the work of the City or of a third party on the project. 3.4. If the Artist is involved in the execution, fabrication, transportation, inspection, and/or installation of the Work, the following provisions shall apply: a. The Artist shall, if and when working on City property, supervise such clean-up as may be reasonably requested by the City. At the close out of the Artist's Work, the Artist shall remove his/her equipment, excess materials, etc., promptly and as requested by City. b. The City and any third party contractor on the project shall notify the Artist of their operation, construction, and maintenance schedules in and around the area where the Artist's Work is to be performed. The Artist shall perform his/her services in a manner and time so as not to cause interference with any of the operations, construction, or maintenance of the City or third party contractor. In the event of a conflict between the schedules of the contractor and/or the City and the Artist, the conflict will be resolved by the City. If such delay prevents Artist from complying with the schedule in Exhibit A, Artist shall not be considered to have breached this Agreement, and Artist and City shall agree to amend the schedule in writing. c. The Artist shall complete the fabrication and installation of the Work in substantial conformity with the attached Exhibit A, Scope of Work. Agreement for Artistic Services Page 3 of 13 ,2001 3.5. The risk of loss or damage to the Work shall be borne by the Artist until final acceptance by City, and the Artist shall take such measures as are necessary to protect the Work from loss or damage until final acceptance by City, except that the risk of loss or damage shall be borne by the City prior to final acceptance during such period of time as the partially or wholly completed Work is in the custody, control, or supervision of the City or its agents for the purposes of transporting, storing, installing, or performing any other ancillary services to the Work. ARTICLE 4. WARRANTIES/STANDARDS 4.1. The Artist warrants that: (a) the design of Work being commissioned is the original product of his/her own creative efforts; (b) unless Otherwise stipulated, the work is original, that it is an edition of one (1), and that the Artist shall not sell or reproduce the Work, or allow others to do so, without the prior written consent of the City. 4.2. The Artist shall guarantee his/her Work to be free from faults of material and workmanship for a period of one (1) year after final acceptance by the City. The Artist shall deliver the Work to the City free and clear of any liens from any source whatever. The foregoing guarantees shall apply only to the Work that is entirely that of the Artist or persons responsible to the Artist, as installed, and shall not apply to materials or workmanship of projects in which the Work of the Artist is integrated or combined, or to materials purchased, acquired, or installed by a person or entity not responsible to the Artist. 4.3. The Artist shall faithfully perform the work required under this Agreement in accordance with standards of care, skill, training, diligence, and judgment provided by highly competent professionals who perform work of a similar nature to the Work described in this Agreement. Artist shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the removal of any such persons, Artist shall, immediately upon receiving notice from City of such desire of City, cause the removal of such person or persons, unless in the Artist's sole opinion, the skill or creativity of such person or persons is essential to the creation of the Work. ARTICLE 5. COMPENSATION 5.1. The Artist shall be paid for services satisfactorily rendered pursuant to this Agreement in accordance with the terms herein, Exhibits A and B, and subsequent adjustments, changes, or additions as specifically prOvided for in this Agreement. Such payment shall be full compensation for work performed and services rendered, for all supervision,' labor, supplies, materials, equipment, or use thereof, for taxes, and for all other necessary incidentals including transportation and storage of Work. 5.2. The amount and schedule of payments to the Artist are contained in the attached Exhibit B, Compensation and Schedule of Payments. Payments under this Agreement for Artistic Services Page 4 of 13 ,2001 Agreement shall not exceed a maximum amount of $100,000, subject only to adjustments, changes, or additions as specifically provided for in this Agreement (hereafter "Total Price"). 5.3. In the event the Artist incurs costs in excess of the Total Price, the Artist shall pay such excess from his/her own funds, the City shall not be required to pay any part of such excess, and the Artist shall not have not claim against the City on account thereof. 5.4. The Artist shall submit invoices to the City according to the schedule provided for in Exhibit B. Such invoices shall be in the form requested by the City. 5.5. In the event that the City determines that Work for which it has been invoiced does not meet the contract specifications, and that it intends to withhold payment, the City shall provide.detailed written notice to the Artist within fifteen (15) days of receipt of invoice, specifying the failure of performance for which the City intends to withhold payment. The Artist shall thereafter meet contract standards to the satisfactiOn of the City or advise the City that he/she disputes the City's determination that the specifications have not been met. 5.6. The City shall pay all invoices that meet contract specifications within thirty (30) days of receipt of invoice. 5.7. No payment to the Artist for any work performed or services rendered shall constitute a waiver or release by the City of any claims, rights or remedies it may have against the Artist Under this Agreement or by law, nor shall such payment constitute a waiver, remission, or discharge by the City of any failure or fault of the Artist to satisfactorily perform the work as required under this Agreement. 5.8. The services to be required of the Artist under this Agreement shall be completed in accordance with the schedule for completion of the Work, as provided for in Exhibit A, provided that such time limits may be extended or otherwise modified by wdtten agreement between the Artist and the City. 5.9. If, when the Artist completes fabrication or procurement of the Work in accordance with the approved schedule and notifies the City that the Work is ready for installation, the Artist is delayed from installing the Work within the time specified in Exhibit A as a result of the construction of the site for the Work not being sufficiently complete to reasonably permit installation of the Work therein, or if the City otherwise does not make the site available to the Artist in accordance with the approved schedule, the City shall promptly reimburse the Artist for reasonable transportation and storage Costs incurred for the period between the time provided in Exhibit A for commencement of installation and the date upon which the site is made available to the Artist for installation of the Work. 5.10. The Artist shall bear any transportation and storage costs resulting from the completion of the Work prior to the time provided in the ischedule'for installation of Agreement for Artistic Services Page 5 of 13 ,, 2001 the Work. The artist will be responsible for the safe keeping and or repair of artwork prior to installation of the Work. 5.11. The City shall grant a reasonable extension of time to the Artist in the event that there is a delay on the part of the City in performing its obligations under this Agreement or in completing the underlying capital project. Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control will not be considered a breach of this Agreement, as long as such obligations shall be suspended only for the duration of the conditions causing the delay. 5.12. For delays in the installation of the Work beyond the schedule provided for under this Agreement caused by factors reasonably under the Artist's control, the City agrees to accept fifty dollars ($50.00) per day as liquidated damages for such delay. ARTICLE 6. ARTIST'S RIGHTS 6.1. The City shall, at its expense, prepare and install at appropriate locations, after consultation with the Artist, a plaque or sign identifying the Artist, the title of the Work, and the year of completion. The City shall also reasonably maintain such notice in good repair against damages due to normal wear and tear over time, vandalism, and the elements. 6.2. The City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work. The City shall reasonably assure that theWork is properly maintained and protected, taking into account the recommendations of the Artist as stated in the maintenance program provided by the Artist. 6.3.. The City agrees that it shall not intentionally damage, alter, modify, change, or substantially relocate the Work of the Artist without first conferring with the Artist and obtaining the prior written approval of the Artist to the proposed modification, change, or substantial relocation. 6.4. Notwithstanding the Artist's refusal to provide (or the City's failure for any reason otherwise to obtain) the Artist's written approval provided for in Section 6.3 above, the City, in its SOle discretion, shall have the right to remove any work of art providing the following terms and conditions are met: a. The removal proposal shall first be submitted to and considered by the City Council. b. The City Council shall have the non-delegable duty to decide that a work of art shall be removed. The decision to remove shall not be made by the City Council until it has reviewed the removal proposal. c. In the event that the City Council decides to remove the Work, the Artist shall have the first right of refusal to purchase his/her Work, if it stands alone and is not integrated into a. larger artwork, building, or Agreement for Artistic Services Page 6 of 13 ,2001 structure and can be removed without expense to the City. The Artist shall also have the right to have his/her name removed from the Work, as well as from the plaque installed pursuant to Section 6.1. 6.5. The City shall have the right to determine, after consultation with a professional conservator, when and if repairs and reStorations to the Work will be made. During the Artist's lifetime, the Artist shall have the right to approve all major repairs and restorations, which approval the Artist shall not unreasonably withhold. If the Artist unreasonably falls to approve any repair or restoration, the City shall have the right to make or supervise significant repairs and restorations. In the event that the City makes repairs or restorations not approved by the Artist, the Artist shall have the right, at his/her sole option, to have his/her name and association with the .Work severed. To the extent practical, the Artist, during his/her lifetime, shall be given the opportunity to make or supervise significant repairs and restorations and shall be paid a reasonable fee for anY such service, if the City and the Artist shall agree, in writing, prior to the commencement of any significant repairS or restorations, upon the Artist's fee for suCh services, 6.6. All repairs and restorations, whether performed by the Artist, the City, or third parties responsible to the Artist or the City, shall be made in accordance with professionally recognized principles of conservation of artworks. ARTICLE 7. COPYRIGHTS 7.1. The Artist shall retain all copyright and other rights in and to the Work created under this Agreement, other than ownership of the Work itself. Artist ,shall grant to the City an irrevocable license to graphically depict the artwork in any non- commercial manner whatsoever. For the purpose of this limitation, the graphic depiction of the artwork(s) on materials designed to promote the City shall be deemed to be a non-commercial use. 7.2. If for any reason the proposed design is not implemented, all rights to the proposed artwork shall be retained by the Artist. 7.3. The Artist agrees that all work performed under this Agreement shall comply with all applicable patent, trademark, and copyright laws, rules, regulations, and Codes of the United States. The Artist further agrees that the Work will not utilize any protected patent, trademark, or copyright in performance of work under this Agreement, unless the Artist has obtained proper permission and all releases and other necessary documents and provided copies of such releases and documents to City. If the Artist specifies any material, equipment, process, or procedure that is protected, the Artist shall disclose such patents, trademarks, and copyrights in the construction drawings and technical specifications. 7.4. The Artist agrees t© release, indemnify, and hold harmless the City, its officers and employees from any and all claims, damages, suits, costs, expenses, Agreement for Artistic Services Page 7 of 13 ,2001 liabilities, actions, or proceeding of any kind resulting from the performance and proper installation of work under this Agreement that infringes upon any patent, trademark, or copyright protected by law. 7.5. All reproductions by the City shall contain a credit to the ARTIST and a copyright notice substantially in the following form: © Robert W. Ellison, 2003. The Artist shall use his/her best efforts to include a credit reading substantially "An original work commissioned by the City of Dublin, California" in any public showing under the Artist's control of reproductions of the Work. ARTICLE 8. NO EMPLOYER/EMPLOYEE OR AGENCY RELATIONSHIP 8.1, No relationship of employer and employee is created by this Agreement, it being understood that Artist shall act hereunder as an independent contractor and not as an employee of City. City shall have the right to control Artist's work only insofar as the results of Artist's services rendered pursuant to this Agreement. Artist shall not have any claim under this Agreement. or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, retirement benefits, Social Security, disability, Worker's Compensation or unemployment insurance benefits, civil service protection, or employee benefits of any kind. Artist shall be solely liable for and obligated to pay directly all applicable taxes, including but not limited to Federal and State income taxes. Artist shall indemnify and hold City harmless from any and all liability that City may incur · because of Artist's. failure to pay such taxes. Notwithstanding the foregoing, if the City determines that pursuant to state and federal law, Artist is an employee for purposes of Federal and State tax withholding, City shall, upon two Weeks notice to Artist, withhold from the payments to Artist hereunder federal and state payroll taxes and pay said sums over to the Federal and State governments. Although City shall control only the results of Artist's services under this Agreement, Artist agrees to perform.his/her said work and functions at all times in strict accordance with currently approved methods and practices in his/her field; in a competent, efficient, timely, and satisfactory manner; and in accordance with the standards required by the City. 8.2. .Nothing contained in this Agreement shall be construed as limiting the right of Artist to engage in his/her profession separate and apart from this Agreement so long as such activities do not interfere with the performance by Artist of his/her obligations as set forth herein and in Exhibit A. 8.3 Except as City may specify in writing, Artist shall have no authority, express or implied, to act on behalf of City in anycapacity whatsoever as an agent. Artist shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. Agreement for Artistic Services Page 8 of 13 ., 2001 ARTICLE 9. CONFORMITY WITH LAW AND SAFETY 9.1. Artist shall observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies, including all provisions of the Occupational Safety and Health Act of 1979 and all amendments thereto, and all applicable federal, state, municipal, and local safety regulations. All services performed by Artist must be in accordance with those laws, ordinances, codes, and regulations. Artist shall indemnify and save City harmless from any and all liability, fines, penalties, and consequences from any noncompliance or violations of such laws, ordinances, codes, and regulations. 9.2. If death, serious personal injury or substantial property damage occurs in connection with the performance of this Agreement, Artist shall immediately notify the City Manager by telephone. Artist shall promptly submit to City a written report, in such form as may be required by City, of all accidents that occur in connection with this Agreement. The report must include the following information: (1) name and address of the injured or deceased person(s); (2) name and address of Artist's subcontractor, if any; (3) name and address of Artist's liability insurance carrier; and (4) a detailed description of the accident and whether any of City's equipment, tools, material, or staff were involved. ARTICLE 10. CONFLICT OF INTEREST No officer, member, or employee of City and no member of its goVerning bodies shall have any pecuniary interest, direct or indirect, in this Agreement or the prOceeds thereof. Neither Artist nor any member of Artist's family shall serve on a City board or committee or hold any position that, either by rule, practice, or action, nominates, recommends, or supervises Artist's operations or authorizes funding to Artist. ARTICLE 11. ASSIGNMENT OF CONTRACT Nothing contained in this Agreement shall be construed to permit assignment or transfer by Artist of any rights under this Agreement and such assignment or transfer is expressly prohibited and void. ARTICLE 12. 'CONFIDENTIALITY OF INFORMATION Confidential information is defined as all information disclosed to Artist that relates to the City's past, present, and future activities, as well as activities under this contract. Artist will hold all such information in trust and confidence except as otherwise required by law. Upon cancellation or expiration of this Agreement, Artist will return to City all written or descriptive matter that contains any such confidential information. ARTICLE 13. NON-DISCRIMINATION Agreement for Artistic Services Page 9 of 13 ,2001 Artist assures that he/she will comply with the Americans with Disabilities Act and with Title VII of the Civil Rights Act of 1964, and that no person shall, on the grounds of race, creed, color, disability, gender, sexual orientation, national origin, age, religion, Vietnam era Veteran's status, political affiliation, or any other non-merit factors be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under this Agreement. ARTICLE 14. USE OF CITY PROPERTY Artist shall not use City premises, property (including equipment, instruments, and supplies), or personnel for any purpose other than in the performance of his/her obligations under this Agreement. ARTICLE 15. FEDERAL AND STATE AUDITS Until the expiration of five years after the furnishing of any services pursuant to this Agreement, Artist shall make available, upon written request, to the Federal/State government or any of their duly authorized representatives, this Agreement and such books, documents, and records of Artist that are necessary to certify the nature and extent of the reasonable cost of services to City. If Artist enters into any Agreement with any related organization to provide services pursuant to this Agreement with a value cost of $10,000 or more over a twelve-month period, such Agreement shall contain a clause to the effect that until the expiration of five years after the furnishing of services pursuant to such subcontract, the related organization shall make available, upon written request, to the Federal/State government or any of their duly authorized representatives, the subcontract, and books, documents and records of such organization that are necessary to verify the nature and effect when and if it is not required by law. ARTICLE 16. MODIFICATION No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto. ARTICLE 17. TERMINATION 17.1. Either party may terminate this Agreement with or without cause by providing thirty (30) days notice, in writing to the other party. Upon the expiration date of said notice, this Agreement shall become of no further force or effect whatsoever and each of the parties shall be relieved and discharged herefrom. 17.2. In the event that the Agreement is terminated by the City without cause, the City shall pay the Artist for all work performed and service rendered up to the effective date of the termination. The City shall have no rights to the Artist's creative work, designs, or unfinished artwork(s). Agreement for Artistic Services Page 10 of 13 ., 2001 17.3. In the event that the Agreement is terminated by the Artist without cause, the Artist shall promptly reimburse the City for all payments made under this Agreement prior to the termination by the Artist. 17.4. In the event that the City determines that the Artist has substantially failed to fulfill his/her obligations as provided under this Agreement, the City shall provide the Artist with written notice detailing the specific obligations which the City claims the Artist has failed to fulfill and notifying the Artist that he/she is deemed to be in breach of the Agreement. If the breach is not cured or if the City and the Artist cannot agree on a schedule for curing the breach, the Agreement will be deemed terminated on a date specified by the City, which will be no sooner than ten (10) days from the date of issuance of the notice. 17.5. If, because of death, unavailability, or any other occurrence, Artist cannot possibly render services or perform work under this Agreement, theAgreement shall be deemed terminated. ARTICLE 18. HOLD HARMLESS/INDEMNIFICATION 18.1. Artist shall indemnify, defend, and hold harmless City and its officers and employees against liability for injury or damage caused by a negligent act or omission of Artist in the performance of this Agreement and shall hold City harmless from any loss or damages directly or indirectly resulting to the City or its officers and employees on account of the performance, or character of the work, unforeseen difficulties, accidents, occurrences, or other causes predicated on active or passive negligence of the Artist or any subcontractor of Artist. Artist shall indemnify, defend, and hold harmless the City, its officers, officials, directors, employees and agents from and against any or all loss, liability, expense, claim, costs (including costs of defense), suits, and damages of every kind, nature and description directly or indirectly arising from the performance of the work. This paragraph shall not be construed to exempt the City, its employees, and officers from its own fraud, willful injury, or violation of law whether willful Or negligent. For purposes of Section 2782 of the Civil Code the parties hereto recognize and agree that this agreement is not a construction contract. By execution of this Agreement, Artist acknowledges and agrees that it has read and understands the provisions hereof and that this paragraph is a material element of consideration. 18.2. The City shall indemnify the Artist against liability for injury or damage caused by a negligent act or omission of the City, its officers and employees in their performance of this Agreement and shall hold the Artist harmless from any loss occasioned by such negligent act or omission. 18.3. Upon final acceptance of the Work, the City shall, to the extent permitted by law, indemnify, and hold harmless the Artist against any and all claims or liabilities that arise thereafter in connection with the Work performed under this Agreement,. except claims by the City against Artist and claims that may occur as a result of the Artist's breach of the warranties provided elsewhere in this Agreement. Agreement for Artistic Services Page 11 of 13 ,2001 ARTICLE 19. INSURANCE/SELF-INSURANCE Artist shall at all times during the terms of this Agreement with the City maintain in force those insurance policies and bonds as designated In the attached Exhibit C and will comply with all those requirements as stated herein. ARTICLE 20. EMPLOYMENT ELIGIBILITY Persons providing services under this contract will be required to provide the necessary documentation to establish identity and employment eligibility as required by the Immigration Reform and Control Act of 1986. Failure to provide the necessary documentation will result in the termination of contract as required by the Immigration Reform and Control Act of 1986. ARTICLE 21. SEVERABILITY In the event any of the provisions, or applications thereof, of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions, or applications thereof, shall not be affected. ARTICLE 22. TIME IS OF THE ESSENCE 5he parties agree that in the performance of the terms and requirements of this Agreement by the Artist that time is of the essence. Artist shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary for satisfactory performance of Artist's obligations pursuant to this Agreement. ARTICLE 23. LICENSES, PERMITS~ ETC. Artist represents and warrants to City that he/she has all licenses, permits, qualifications and approvals of whatsoever nature that are legally required for Artist to practice his/her profession. Artist represents and warrants to City that Artist shall, at his/her sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required for Artist to practice his/her profession. ARTICLE 24. GOVERNING LAW This Agreement shall be governed by the laws of the State of California and any suit or action by either party shall be brought in the County of Alameda, California. ARTICLE 25. ATTORNEYS FEES If a party brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party is entitled to reasonable Agreement for Artistic Services Page 12 of 13 ,2001 attorneys' fees in addition to any other relief to which that party may be entitled. Such fees may be set by the court in the same action or in a separate action brought for that purpose. ARTICLE 26, NO WAIVER The waiver of any breach of a speCific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. ARTICLE 27. SURVIVAL All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Artist survive the termination of this Agreement. · ARTICLE 28, EXECUTION IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the day and year first written above. CITY OF DUBLIN ARTIST Mayor Attest: City Clerk ApprOved as to form: City Attorney J:\WPD\Mnrsw\114\001~2001~Agree\artist_1105.doc Robert Ellison 6480 Eagle Ridge Rd Penngrove, CA 94951 Agreement for Artistic Services Page 13 of 13 ,2001 EXHIBIT A SCOPE OF SERVICES Summary of Scope of Artist's Services The intent of this Agreement is to define the work t© be done in designing, planning, fabricating, transporting and installing artwork for the Dublin Public Library in the City of Dublin, California. Robert Ellison will provide two welded steel columns, one with an open book on top of it and the other with a computer mouse and spiraling movement trail. The respective heights of these columns are approximately 17 feet and 20 feet. The columns are 2'4 inch diameter standard pipe, bent to a 12 foot radius arc. The material for this sculpture is fully welded carbon steel plate ranging from 3/16 inch thick to % inch thick, depending on the application. The exception is the mouse, which will be fabricated from fiberglass. All edges will be rounded and are a minimum of ¼ inch in diameter. The entire surface will be ground smooth, sandblasted to white metal, primered with epoxy and color coated with catalyzed urethane, and is generally considered to be "maintenance free". Graffiti can be removed with lacquer thinner. Artist will provide manufacturer's Standard Product Specification. The Artist will provide engineering drawings and calculations of the sculpture, anchoring requirements, and foundation for City of Dublin Building Department review and approval. The Artist will also provide the anchoring embeds to the Contractor prior to final delivery of the sculpture. The sculpture will be delivered to the site fully fabriCated and color coated. Installation will be done by the Artist. Four anchor bolts will be secured with nuts from inside each column. Access ways in both columns will be covered with removable "invisible" cover plates. Cover plates will be secured with flat head counter sunk stainless steel bolts. The Artist will provide foundation drawings and steel reinforcing with attached anchor bolts to be imbedded within the concrete foundation. The City of Dublin is to provide a soils report, excavation work and the concrete foundation. Schedule Engineering - Complete and approved by NoVember 15, 2001 Anchoring Imbedments - To Contractor for installation by November 30, 2001 Sculpture Installed - By May 2002 Agreement for Artistic Services -,EXHIBIT A Page 1 .,2001 EXHIBIT B CONDITION & TERMS OF PAYMENT 1. The City agrees to pay Artist a fixed fee not to exceed $100,000, which shall constitute full compensation for all services to be performed and materials furnished by the Artist under this Agreement. The fee shall be paid in the following installments, each installment to represent full, final and non-refundable payment for all services and materials provided prior to the due date thereof: City will pay Artist upon submission of a written invoice from Artist to City. As early as practical, but not later than thirty (30)calendar days following receipt of said invoice, City shall pay Artist the full face value of the invoice. Design: $1,500 Structural Drawings and Materials Procurement: $41,750 Metal and fiberglass fabrication: $41,750 Delivery and Installation: $15,000 Agreement For Artistic Services - EXHIElIT E! Page ,2001 EXHIBIT C INSURANCE REQUIREMENTS Contractor shall procure and maintain for the duration of the contract "occurrence coverage" insurance against claims for injuries to persons or damages to property which may adse from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, employees or subcontractors. The cost of such insurance shall be included in the Contractor's bid. a. Minimum Scope of Insurance. Coverage shall be at least as broad as: 1. Insurance Services Office form number GL 0002 (Ed. 1/73) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001 .) 2. Insurance Services Office form number CA 0001 (Ed. 1/78) covering Automobile Liability, code 1 "any auto" and endorsement CA 0025. 3. Workers' Compensation Insurance as required by the Labor Code of the State of California and Employers Liability Insurance. b. Minimum Limits of.Insurance. Artist shall maintain limits no less than: 1. General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $350,000 combined single limit per accident for bodily injury and property damage. 3, Workers' Compensation and Employers Liability: Workers' Compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident. c. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials and emPloyees; or the Artist shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Agreement For Artistic Services - EXHIBIT C Page 1 of 3 ,2001 d. Other Insurance Provisions. The policies-are to contain, or be endorsed to contain, the following provisions: 1. General Liability and Automobile Liability Coverages. A. The City, its officers, officials, employees and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Artist; products and completed operations of the Artist, premises owned, occupied or used by the Artist, or automobiles owned, leased, hired or borrowed by the Artist. The coverage shall contain no special limitations on the scope of the protection afforded to the City, its officers, officials, employees or volunteers. B. The Artist's insurance coverage shall be primary insurance as respects the city, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees or volunteers shall be excess of the Artist's insurance and shall not contribute with it. C. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. D. The Artist's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its officers, officials, employees and volunteers for losses arising from work performed by the Artist for the City. 3. Professional Liability. Artist shall carry professional liability insurance in an amount deemed by the City to adequately protect the Artist against liability caused by negligent acts, errors or omissions on the part of the Artist in the course of performance of the services specified in this Agreement. 4. All Coverages. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, .reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Agreement For Artistic Services - EXHIBIT C Page 2 of 3 ,2001 e. Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than A:VII. f. Verification of Coveraqe. Artist shall furnish City with certificates of insurance and with original endorsements effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. g. Subcontractors. Artist shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. h. Waiver. The City may approve a variation in those insurance requirements upon a determination that the coverages, scope, limits and forms of such insurance are either not commercially available or that the City's interests are otherwise fully protected. Agreement For Artistic Services - EXHIBIT C Page 3 of 3 ,2001 AGREEMENT BETWEEN THE CITY OF DUBLIN AND PETER MOLLICA RELATING TO THE PROVISION OF ARTISTIC SERVICES FOR A PUBLIC ART PROJECT This Agreement is made by and between the City of Dublin, a political subdivision of the State of California (hereafter "City"), and Peter Mollica (hereafter "Artist") this __ day of ,2001. RECITALS WHEREAS, the City requires the services of Artist to perform artistic services · described in the Agreement for a public art project; and WHEREAS, the City is authorized by Section 2.36.050 of the Dublin Municipal Code to contract for the specialized services of the artist contemplated by this Agreement; and WHEREAS, Artist is qualified and desires to perform the artistic services required by the City as set forth in this Agreement; and WHEREAS, the City Council, authorized an agreement between City and Artist for the preparation of a final design and fabrication for the work to be prepared for the Dublin Public Library public art project (hereafter WVork"). NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree as follows: AGREEMENT ARTICLE 1. SCOPE OF WORK 1.1. For services rendered herein, City shall pay Artist a sum not to exceed $55,000 for work performed during the period beginning June 2001 through completion of the Dublin Public Library. Artist shall furnish services as described in Exhibit A of this Agreement. Terms and conditions for payment are attached in Exhibit B of this Agreement. 1.2. The City shall be responsible for providing the Artist, without cost, copies of designs, drawings, reports, and other relevant data needed by the Artist to design and execute the Project. 1.3. Design, fabrication, and delivery of 20 leaded glass panel windows. 1.4. The Artist shall begin work after the execution of this Agreement. Agreement for Artistic Services ATTACHMENT 3 Page 1 of 13 .,2001 ARTICLE 2. CHANGES IN SCOPE AND ADDITIONAL WORK 2.1. The'Artist shall, whenever required during the term of this Agreement, present to the City in writing, drawing, or other appropriate media for further review and approval any significant changes in the scope, design, color, size, material, utility, and support requirements, texture, or location of the site or the Work. A significant change is any change which affects the installation, scheduling, site preparation, or maintenance of the Work, or the concept of the Work as represented in the original approved design. 2.2. The Artist shall be obligated to perform the services called for in Exhibit A. The Artist and the City agree that the Artist shall retain artistic control of his/her services in the performance of the services under this Agreement, subject only to the limitations imposed in Exhibit A. 2.3. Not withstanding the provisions of Section 2.2 above, the City may, at any time, request the Artist in writing to revise portions of the services that he/she has previously completed in a satisfactory manner; delete portions of the Scope of the Work that the Artist has not yet performed; perform additional work beyond the Scope of Work to be provided in Exhibit A; or make other changes within the General Scope of the Work to be performed under this Agreement. In the event of such a written request, the Artist may, but shall not be obligated to agree to any such request unless not doing so will significantly impact the project's schedule, cost, or installation. 2.4. In the event the request for change is agreed to by the Artist, this Agreement shall be amended, in writing, specifying the agreed changes, including, but not limited to, a description of services, additional budget, payment schedule, and timetable. 2.5. In the event that the Artist does. not agree to the request, the City shall be entitled to terminate the Agreement for cause pursuant to Article 17 herein. 2.6. No services for which additional compensation will be charged shall be provided by the Artist without the prior written authorization by the City. ARTICLE 3. RESPONSIBILITY OF THE ARTIST 3.1. The Artist agrees that an essential .element of this Agreement is the skill and creativity of the Artist. The Artist shall not assign the creative or artistic portions of the Work to another party for the production of the Work without the written consent of the City. Failure to conform to this provision may be cause for termination of this Agreement, at the sole option of the City. 3.2. The Artist shall be responsible for providing services described in Exhibit A, including but not limited to, the quality and timely completion of the services. The Agreement for Artistic Services Page 2 of 13 ,2001 Artist shall be responsible for designing the Work so that it can be constructed without exceeding the approved overall budget for the project. If the installation requirements exceeds the project budget, it will be the artist's responsibility to redesign at their expense to meet the project budget. The Artist shall, without additional compensation, correct or revise any errors, omissions, or other deficiencies in his/her Work. 3.3. In the event the services of the Artist are integrated into, combined, or otherwise coordinated with services by third parties not within the control of the Artist, the Artist shall not be responsible for such third party services. If any part of the Artist's Work depends for proper execution or results upon the work of the City, or a third party responsible to the City, the Artist shall, prior to proceeding with his or her Work, promptly report to the City any apparent discrepancies or other defects in such other work which renders it unsuitable for proper execution and results by the Artist. The Artist shall not be responsible for any liability or failure to fulfill his/her obligations because of such discrepancies or defects. Failure of the Artist to report a discrepancy or defect shall constitute an acceptance of the City's or third party's work as fit and proper to receive Artist's Work. Any costs caused by defective or ill-timed work shall be borne by the party responsible therefore. Nothing in this section shall limit the responsibility of the Artist to take all reasonable steps to coordinate his/her Work with the work of the City or of a third party on the project. 3.4. If the Artist is involved in the execution, fabrication, transportation, inspection, and/or installation of the Work, the following provisions shall apply: a. The Artist shall, if and when working on City property, supervise such clean-up as may be reasonably requested by the City. At the close out of the Artist's Work, the Artist shall remove his/her equipment, excess materials, etc., promptly and as requested by City. b. The City and any third party contractor on the project shall notify the Artist of their operation, construction, and maintenance schedules in and around the area where the Artist's Work is to be performed. The Artist shall perform his/her services in a manner and time so as not to cause interference with any of the operations, construction, or maintenance of the City or third party contractor. In the event of a conflict between the schedules of the contractor and/or the City and the Artist, the conflict will be resolved by the City. If such delay prevents Artist from complying with the schedule in Exhibit A, Artist shall not be considered to have breached this Agreement, and Artist and City shall agree to amend the schedule in writing. c. The Artist shall complete the fabrication and oversee installation of the Work in substantial conformity with the attached Exhibit A, Scope of Work. 3.5. The risk of loss or damage to the Work shall be borne by the Artist until final acceptance by City, and the Artist shall take such measures as are necessary to Agreement for Artistic Services Page 3 of 13 ,2001 protect the Work from loss or damage until final acceptance by City, except that the dsk of loss or damage shall be borne by the City prior to final acceptance during such period of time as the partially or wholly completed Work is in the custody, control, or supervision of the City or its agents for the purposes of transporting, storing, installing, or performing any other ancillary services to the Work. ARTICLE 4. WARRANTIES/STANDARDS 4.1. The Artist warrants that: (a) the design of Work being commissioned is the original product of his/her own creative efforts; (b) unless otherwise stipulated, the work is original, that it is an edition of one (1), and that the Artist shall not sell or reproduce the Work, or allow Others to do so, without the prior written consent of the City. 4.2. The Artist shall guarantee his/her Work to be free from faults of material and workmanship for a period of one (1) year after final acceptance by the City. The Artist shall deliver the Work to the City free and clear of any liens from any source whatever. The foregoing guarantees shall apply only to the Work that is entirely that of the Artist or persons responsible to the Artist, as installed, and shall not apply to materials or workmanship of projects in which the Work of the Artist is integrated or combined, or to materials purchased, acquired, or installed by a person or entity not responsible to the Artist. 4.3. The Artist shall faithfully perform the work required under this Agreement in accordance with standards of care, skill, training, diligence, and judgment provided by highly competent professionals who perform work of a similar nature to the Work described in this Agreement. Artist shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the removal of any such persons, Artist shall, immediately upon receiving notice from City of such desire of City, cause the removal of such person or persons, unless in the Artist's sole opinion, the skill or creativity of such person or persons is essential to the creation of the Work. ARTICLE 5. COMPENSATION 5.1. The Artist shall be paid for services satisfactorily rendered pursuant to this Agreement in accordance with the terms herein, Exhibits A and B, and subsequent adjustments, changes, or additions as specifically provided for in this Agreement. Such payment shall be full compensation for work performed and services rendered, for all supervision, labor, supplies, materials, equipment, or use thereof, for taxes, and for all other necessary incidentals including transportation and storage of Work. 5.2. The amount and schedule of payments to the Artist are contained in the attached Exhibit B, Compensation and Schedule of Payments. Payments under this Agreement shall not exceed a maximum amount of $55,000, subject only to adjustments, changes, or additions as specifically provided for in this Agreement (hereafter "Total Price"). Agreement for Artistic Services Page 4 of 13 ,2001 5.3, In the event the .Artist incurs costs in excess of the Total Price, the Artist shall pay such excess from his/her own funds, the City shall not be required to pay any part of such excess, and the Artist shall not have not claim against the City on account thereof. 5.4. The Artist shall submit invoices to the City according to the schedule provided for in Exhibit B. Such invoices shall be in the form requested by the City.- 5.5. In the event that the City determines that Work for which it has been invoiced does not meet the contract specifications, and that it intends to withhold payment, the City shall provide detailed written notice to the Artist within fifteen (15) days of receipt of invoice, specifying the failure of performance for which the City intends to withhold payment. The Artist shall thereafter meet contract standards to the satisfaction, of the City or advise the City that he/she disputes the City's determination that the specifications have not been met. -5.6. The City shall pay all invoices that meet contract specifications within thirty (30) days of receipt of invoice. 5.7. No payment to the Artist for any work performed or services rendered shall constitute a waiver or release by the City of any claims, rights or remedies it may have against the Artist under this Agreement or by law, nor shall such payment constitute a waiver, remission, or discharge by the City of any failure or fault of the Artist to satisfactorily perform the work as required under this Agreement. 5.8. The services to be required of the Artist under this Agreement shall be completed in accordance with the schedule for completion of the Work, as provided for in Exhibit A, provided that such time limits may be extended or otherwise modified by wdtten agreement between the Artist and the City. 5.9. If, when the Artist completes fabrication or procurement of the Work in accordance with the approved schedule and notifies the City that the Work is ready for installation, the Artist is delayed from installing the Work within the time specified in Exhibit A as a result of the construction of the site for the Work not being sufficiently complete to reasonably permit installation of the Work therein, or if the City otherwise does not make the site available to the Artist in accordance with the approved schedule, the City shall promptly reimburse the Artist for reasonable transportation and storage costs incurred for the period between the time provided in Exhibit A for commencement of installation and the date upon which the site is made available to the Artist for installation of the Work. 5.10. The Artist shall bear any transportation and storage costs resulting from the completiOn of the Work prior to the time provided in the schedule for installation of ' the Work. The artist will be responsible for the safe keeping and or repair of artwork prior to installation of the Work. Agreement for Artistic Services Page 5 of 13 ,2001 5.11. The City shall grant a reasonable extension of time to the Artist in the event that there is a delay on the part of the City in performing its obligations under this Agreement or in completing the underlying capital project. Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control will not be considered a breach of this Agreement, as long as such obligations shall be suspended only for the duration of the conditions causing the delay. 5.12. For delays in the installation of the Work beyond the schedule provided for under this Agreement caused by factors reasonably under the Artist's .control, the City agrees to accept fifty dollars ($50.00) per day as liquidated damages for such delay. ARTICLE 6. ARTIST'S RIGHTS 6.1. The City shall, at its expense, prepare and install at appropriate locations, after consultation with the Artist, a plaque or sign identifying the Artist, the title of the Work, and the year of completion. The City shall also reasonably maintain such notice in good repair, against damages due to normal wear and tear over time, vandalism, and the elements. 6.2. The City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work. The City shall reasonably assure that the Work is properly maintained and protected, taking into account the recommendations of the Artist as stated in the maintenance program provided by the Artist. 6.3. The City agrees that it shall not intentionally damage, alter, modify, change, or substantially relocate the Work of the Artist without first conferring with the Artist and obtaining the prior written approval of the Artist to the proposed modification, change, or substantial relocation. 6.4. Notwithstanding the Artist's refusal to provide (or the City's failure for any reason otherwise to obtain) the Artist's written approval provided for in Section 6.3 above, the City, in its sole discretion, shall have the right to remove any work of art providing the following terms and conditions are met: a. The removal proposal shall first be submitted to and considered by the City Council. b. The City Council shall have the non-delegable duty to decide that a work of art shall be removed. The decision to remove shall not be made by the City Council until it has reviewed the removal proposal. c. In the event that the City Council decides to remove the Work, the Artist shall have the first right of refusal to purchase his/her Work, if it stands alone and is not integrated into a larger artwork, building, or structure and can be removed without expense to the City. The Artist shall also have the right to have his/her name removed from the Work, as well as from the plaque installed pursuant to Section 6.1. Agreement for Artistic Services Page 6 of 13 ., 2001 6.5. The City shall have the right to determine, after consultation with a professional conservator, when and if repairs and restorations to the Work will be made. During the Artist's lifetime, the Artist shall have the right to approve all major repairs and restorations, which approval the Artist shall not unreasonably withhold. If the Artist unreasonably falls to approve any repair or restoration, the City shall have the right to make or supervise significant repairs and restorations. In the event that the City makes repairs or restorations not approved by the Artist, the Artist shall have the right, at his/her sole option, to have his/her name and association with the Work severed. To the extent practical, the Artist, during his/her lifetime, shall be given the opportunity to make or supervise significant repairs and restorations and shall be paid a reasonable fee for any such service, if the City and the Artist shall agree, in writing, prior to the commencement of any significant repairs or restorations, upon the Artist's fee for such services. 6.6. All repairs and restorations, whether performed by the Artist, the City, or third parties responsible to the Artist or the City, shall be made in accordance with professionally recognized principles of conservation of artworks. ARTICLE 7. COPYRIGHTS 7.1. The Artist shall retain all copyright and other rights in and to the Work created under this Agreement, other than ownership of the Work itself. Artist shall grant to the City an irrevocable license to graphically depict the artwork in any non-. commercial manner whatsoever. For the purpose of this limitation, the graphic depiction of the artwork(s) on materials designed to promote the City shall be deemed to be a non-commercial use. 7.2. If for any reason the proposed design is not implemented, all rights to the proposed artwork shall be retained by the Artist. 7.3. The Artist agrees that all work perfOrmed under this Agreement shall comply with all applicable patent, trademark, and copyright laws, rules, regulations, and codes of the United States. The Artist further agrees that the Work will not utilize any protected patent, trademark, or copyright in performance of work under this Agreement, unless the Artist has obtained proper permission and all releases and other necessary documents and provided copies of such releases and documents to City. If the Artist specifies any material, equipment, process, or procedure that is protected, the Artist shall disclose such patents, trademarks, and copyrights in the construction drawings and technical specifications. 7.4. The Artist agrees to release, indemnify, and hold harmless the City, its officers and employees from any and all claims, damages, suits, costs, expenses, liabilities, actions, or proceeding of any kind resulting from the performance and proper installation of work under this Agreement that infringes upon any patent, trademark, or copyright protected by law. Agreement for Artistic Services Page 7 of 13 ,2001 7.5. All reproductions by the City shall contain a credit to the ARTIST and a copyright notice substantially in the following form: © Peter Mollica, 2003. The Artist shall use his/her best efforts to include a credit reading substantially "An original work commissioned bY the City of Dublin, California" in any public showing under the Artist's control of reproductions of the Work. ARTICLE 8. NO' EMPLOYER/EMPLOYEE OR AGENCY RELATIONSHIP 8.1. No relationship of employer and employee is created by this Agreement, it being understood that Artist shall act hereunder as an independent contractor and not as an employee of City. City shall have the right to control Artist's work only insofar as the results of Artist's services rendered pursuant to this Agreement. Artist shall not have any claim under this Agreement or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, retirement benefits, Social Security, disability, Worker's Compensation or unemployment insurance benefits, civil service protection, or employee benefits of any kind. Artist shall be solely liable for and obligated to pay directly all applicable taxes, including but not limited to Federal and State income taxes. Artist shall indemnify and hold City harmless from any and all .liability that City may incur because of Artist's failure to pay such taxes. Notwithstanding the foregoing, if the City determines that pursuant to state and federal law, Artist is an employee for purposes of Federal and State tax withholding, City shall, upon two weeks notice to Artist, withhold from the payments to Artist hereunder federal and state payroll taxes and pay said sums over to the Federal and State governments. Although City shall control only the results of Artist's services under this Agreement, Artist agrees to perform his/her said work and functions at all times in strict accordance with currently approved methods and practices in his/her field; in a competent, efficient, timely, and satisfactory manner; and in accordance with the standards required by the City. 8.2. Nothing contained in this Agreement shall be construed as limiting the right of Artist to engage in his/her profession separate and apart from this Agreement so long as such activities do not interfere with the performance by Artist of his/her obligations as set forth herein and in Exhibit A. 8.3 Except as City may specify in writing, Artist shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Artist shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. ARTICLE 9. CONFORMITY WITH LAW AND SAFETY 9.1. Artist shall observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies, including all provisions of the Occupational Safety and Health Act of 1979 and all amendments thereto, and all applicable federal, Agreement for Artistic Services Page 8 of 13 ,2001 state, municipal, and local safety regulations. All services performed by Artist must be in accordance with those laws, ordinances, codes, and regulations. Artist shall indemnify and save City harmless from any and all liability, fines, penalties, and consequences from any noncompliance or violations of such laws, ordinances, codes, and regulations. 9.2. If death, serious personal injury or substantial property damage occurs in connection with the performance of this Agreement, Artist shall immediately notify the City Manager by telephone. Artist shall promptly submit to City a written report, in such form as may be required by City, of all accidents that occur in connection with this Agreement. The report must include the following information: (1) name and address of the injured or deceased person(s); (2) name and address of Artist's subcontractor, if any; (3) name and address of Artist's liability insurance carrier; and (4) a detailed description of the accident and whether any of City's equipment, tools, material, or staff were involved. ARTICLE 10. cONFLICT OF INTEREST No officer, member, or employee of City and no member of its governing bodies shall have any pecuniary interest, direct or indirect, in this Agreement or the proceeds thereof. Neither Artist nor any member of Artist's family shall serve on a City board or committee or hold any position that, either by rule, practice, or action, nominates, recommends, or supervises Artist's operations or authorizes funding to Artist. ARTICLE 11. ASSIGNMENT OF CONTRACT Nothing contained in this Agreement shall be construed to permit assignment or transfer by Artist of any rights under this Agreement and such assignment or transfer is expressly prohibited and void. ARTICLE 12. CONFIDENTIALITY OF INFORMATION Confidential information is defined as all information disclosed to Artist that relates to the City's past, present, and future activities, as well as activities under this contract. Artist will hold all such information in trust and confidence except as otherwise required by law. Upon cancellation or expiration of this Agreement, Artist will return to City all written or descriptive matter that contains any such confidential information. ARTICLE 13. NON-DISCRIMINATION Artist assures that he/she will comply with the Americans with Disabilities Act and with Title VII of the Civil Rights Act of 1964, and that no person shall, on the grounds of race, creed, color, disability, gender, sexual orientation, national origin, age, religion, Vietnam era Veteran's status, political affiliation, or any other non-merit factors be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under this Agreement. Agreement for Artistic Services Page 9 of 13 ,2001 ARTICLE 14. USE OF CITY PROPERTY Artist shall not use City premises, property (including equipment, instruments, and supplies), or personnel for any purpose other than in the performance of his/her obligations under this 'Agreement. ARTICLE 15. FEDERAL AND STATE AUDITS Until the expiration of five years after the furnishing of any services pursuant to this Agreement, Artist shall make available, upon written request, to the Federal/State government or any of their duly authorized representatives, this Agreement and such books, documents, and records of Artist that are necessary to certify the nature and extent of the reasonable cost of services to City. If Artist enters into any Agreement with any related organization to provide services pursuant to this Agreement with a value cost of $10,000 or more over a twelve-month period, such Agreement shall contain a clause to the effect that until the expiration of five years after the furnishing of services pursuant to such subcontract, the related organization shall make available, upon written request, to the Federal/State government or any of their duly authorized representatives, the subcontract, and books, documents and records of such organization that are necessary to verify the nature and effect when and if it is not required by law. ARTICLE 16. MODIFICATION No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto. ARTICLE 17. TERMINATION 17.1. Either party may terminate this Agreement with or without cause by providing thirty (30) days. notice, in writing to the other party. Upon the expiration date of said notice, this Agreement shall become of no further force or effect whatsoever and each of the parties shall be relieved and discharged herefrom. 17.2. In the event that the Agreement is terminated by the City without cause, the City shall pay the Artist for all work performed and service rendered up to the effective date of the termination. The City shall have no rights to the Artist's creative work, designs, or unfinished artwork(s). 17.3. In the event that the Agreement is terminated by the Artist without cause, the Artist shall promptly reimburse the City for all payments made under this Agreement prior to the termination by the Artist. 17.4. In the event that the City determines that the Artist has substantially failed to fulfill his/her obligations as provided under this Agreement, the City shall provide the Artist with written notice detailing the specific obligations which the City claims the Artist Agreement for Artistic Services Page 10 of 13 ,2001 has failed to fulfill and notifying the Artist that he/she is deemed to be in breach of the Agreement. If the breach is not cured or if the City and the Artist Cannot agree on a schedule for curing the breach, the Agreement will be deemed terminated on a date specified by the City, which will be no sooner than ten (10) days from the date of issuance of the notice. 17.5. If, because of death, unavailability, or any other occurrence, Artist cannot possibly render services or perform work under this Agreement, the Agreement shall be deemed terminated. ARTICLE 18. HOLD HARMLESS/INDEMNIFICATION 18.1. Artist shall indemnify, defend, and hold harmless City and its officers and employees against liability for injury or damage caused by a negligent act or omission of Artist in the performance of this Agreement and shall hold City harmless from any loss or damages directly or indirectly resulting to the City or its officers and employees on account of the performance or character of the work, unforeseen difficulties, accidents, occurrences, or other causes predicated on active or passive negligence of the Artist or any subcontractor of Artist. Artist shall indemnify, defend, and hold harmless the City, its officers, officials, directors, employees and agents from and against any or all loss, liability, expense, claim, costs (including costs of defense), suits, and damages of every kind, nature and description directly or indirectly arising from the performance of the work. This paragraph shall not be construed to exempt the City, its employees, and officers from its own fraud, willful injury, or violation of law whether willful or negligent. For purposes of Section 2782 of the Civil Code the parties hereto recognize and agree that this agreement is not a construction contract. By execution of this Agreement, Artist acknowledges and agrees that it has read and understands the provisions hereof and that this paragraph is a material element of consideration. 18.2. The City shall indemnify the Artist against liability for injury or damage caused by a negligent act or omission of the City, its officers and employees in their performance of this Agreement and shall hold the Artist harmless from any loss occasioned by such negligent act or omission. 18.3. Upon final acceptance of the Work, the City shall, to the extent permitted by law, indemnify, and hold harmless the Artist against any and all claims or liabilities that arise thereafter in connection with the Work performed under this Agreement, except claims by the City against Artist and claims that may occur as a result of the Artist's breach of the warranties provided elsewhere in this Agreement. ARTICLE 19. INSURANCE/SELF-INSURANCE Artist shall at all times during the terms of this Agreement with the City maintain in force those insurance policies and bonds as designated In the attached Exhibit C and will comply with all those requirements as stated herein. Agreement for Artistic Services Page 11 of 13 ,2001 ARTICLE 20. EMPLOYMENT ELIGIBILITY Persons providing services under 'this contract will be reqUired to provide the necessary documentation to establish identity and employment eligibility as required by the Immigration Reform and Control Act'of 1986. Failure to provide the necessary documentation will result in the termination of contract as required by the Immigration Reform and Control Act of 1986. ARTICLE 21. SEVERABILITY In the event any of the provisions, or applications thereof, of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions, or applications thereof, shall not be affected. ARTICLE 22. TIME IS OF THE ESSENCE The parties agree that in the performance of the terms and requirements of this Agreement by the Artist that time is of the essence. Artist shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary for satisfactory performance of Artist's obligations pursuant to this Agreement. ARTICLE 23. LICENSES~ PERMITS~ ETC. Artist represents and warrants to City that he/she has all licenses, permits, qualifications and approvals of whatsoever nature that are legally required for Artist to practice his/her profession. Artist represents and warrants to City that Artist shall, at his/her sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required for Artist to practice his/her profession. ARTICLE 24. GOVERNING LAW This Agreement shall be governed by the laws of the State of California and any suit or action by either party shall be brought in the County of Alameda, California. ARTICLE 25. ATTORNEYS FEES If a party brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party is entitled to reasonable attorneys' fees 'n addition to any other relief to which that party may be entitled. Such fees may be set by the court in the same action or in a separate action brought for that purpose. ARTICLE 26. NO WAIVER Agreement for Artistic Services Page 12 of 13 ,2001 The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. ARTICLE 27. SURVIVAL All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Artist survive the termination of this Agreement. ARTICLE 28. EXECUTION IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the day and year first written above. CITY OF DUBLIN Mayor Attest: City Clerk Approved as to form: Peter Mollica 10033 Broadway Terrace Oakland, CA 94611 City Attorney J:\WPD\Mnrsw\114\001~2001~Agree\artist_l105.doc Agreement for Artistic Services Page 13 of 13 ,2001 EXHIBIT A SCOPE OF SERVICES Summary of Scope of Artist's Services The intent of this Agreement is to define the work to be done in designing, planning, fabricating, transporting and installing artwork for Dublin Public Library in the City of Dublin, California. The Commission for the Dublin Public Library Rotunda Windows will include design, fabrication and delivery of 20 leaded glass panels, (12 panels @ 24"x 43" maximum, 4 panels @ 24"x 52" maximum, 4 panels @ 24"x 54" maximum). These panels are spaced as directed per the artist on site. The design consists of colored glass shapes on a clear glass background to integrate with the surrounding glass. The'glass will be hand-made, mouth-blown "Antique" glass made in Germany, France and/or Seattle, WA.~ Small amounts of beveled glass and "Dichroic" glass will also be used. Dichroic glass is highly reflective and changes color depending on the viewer's position and whether it is seen in reflected or transmitted light. The individual pieces of glass will be held together with lead "came", traditional to leaded glass work and "cemented" using traditional putty which cleans, waterproofs and stiffens the leaded glass panel. Upon approval of the design, the Artist will begin fabrication. Fabrication will be completed within 6 months of the signing of this agreement. During fabrication and upon two days notice to the Artist, representatives of the City are welcome to visit the Artist's studio to view progress of the windows. The artist will deliver the windows. The City, through its contractor, will provide scaffolding and labor for the installation. Schedule Window installation to be coordinated with the City's contractor for May 2002. Page 1 Agreement for Adistic Services - EXHIBIT A ,2001 EXHIBIT B CONDITION & TERMS OF PAYMENT 1. The City agrees to pay Artist a fixed fee not to exceed $55,000, which shall constitute full compensation for all services to be performed and materials furnished by the Artist under this Agreement. The fee shall be paid in the following inStallments, each installment to represent full, final and non-refundable payment for all services and materials provided prior to the due date thereof: City will pay Artist upon submission of a written invoice from Artist to City. As early as practical, but not later than thirty (30) calendar days following receipt of said invoice, City shall pay Artist the full face value of the invoice. PAYMENT SCHEDULE 1. The first payment, $1500, is a stipend design fee 2. The second payment, $13,750, is design fee payable at the signing of this agreement by the Client and the Artist. 3. The third payment, $13,750, is due at the start of fabrication. 4. The fourth payment, $13,750, is payable within thirty days of billing by the Artist certifying that the fabrication is 75% complete. (Glass is cut ready for leading) 5. The final payment, $12,250, is payable upon delivery of the completed windows and includes CA sales tax. Page 1 Agreement For Artistic Services - EXHIBIT B ,2001 EXHIBIT C INSURANCE REQUIREMENTS Contractor shall procure and maintain for the duration of the contract "occurrence coverage" insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, employees or subcontractors. The cost of such insurance shall be included in the Contractor's bid. a. Minimum Scope of Insurance. Coverage shall be at least as broad as: 1. Insurance Services Office form number GL 0002 (Ed. 1/73) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001.) 2. Insurance Services Office form number CA 0001 (Ed. 1/78) covering Automobile Liability, code 1 "any auto" and endorsement CA 0025. 3.' Workers' Compensation Insurance as required by the Labor Code of the State of California and Employers Liability Insurance. b. Minimum Limits of Insurance. Artist shall maintain limits no less than: 1. General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $350,000 combined single limit per accident for bodily injury and property damage. 3. Workers' Compensation and Employers Liability: Workers' Compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident. c. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials and employees; or the Artist shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Agreement For Artistic Services - EXHIBIT C Page 1 of 3 ,2001 d. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: 1. General Liability and Automobile Liability Coverages. A. The City, its officers, officials, employees and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Artist; products and completed operations of the Artist, premises owned, occupied or used by the Artist, or automobiles owned, leased, hired or borrowed by the Artist. The coverage shall contain no special limitations on the scope of the protection afforded to the City, its officers, officials, employees or volunteers. B. The Artist's insurance coverage shall be primary insurance as respects the city, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees or volunteers shall be excess of the Artist's insurance and shall not contribute with it. C. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. D. The Artist's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its officers, officials, employees and volunteers for losses arising from work performed by the Artist for the City. 3. Professional Liability. Artist shall carry professional liability insurance inan amount deemed by the City to adequately protect the Artist against liability caused by negligent acts, errors or omissions on the part of the Artist in the course of performance of the services specified in this Agreement. 4. All Coverages. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Agreement For Artistic Services - EXHIBIT C Page 2 of 3 ,2001 e. Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than A:VII. f. Verification of Coverage. Artist shall furnish City with certificates of insurance and with original endorsements effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificateS and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. g. Subcontractors. Artist shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. h. Waiver. The City may approve a variation in those insurance requirements upon a determination that the coverages, scope, limits and forms of such insurance are either not commercially available or that the City's interests are otherwise fully protected. Agreement For Artistic Services - EXHIBIT C Page 3 of 3 ,2001