HomeMy WebLinkAboutReso 43-23 Approving the Avalon West Dublin Public Art Installation AgreementDocuSign Envelope ID: 91 E18C8B-6332-4E18-B969-926165A93030
RESOLUTION NO. 43 — 23
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING THE AVALON WEST DUBLIN PUBLIC ART INSTALLATION AGREEMENT
WHEREAS, Avalon West Dublin, L.P., a Delaware Limited Partnership ("Developer"), is
developing an 8.53-acre site within Downtown Dublin that includes the construction of a 499-unit
residential building; and
WHEREAS, Developer is required under Dublin's Public Art Ordinance, Municipal Code
section 8.58.060(A) to install Council -approved public art; and
WHEREAS, on January 11, 2023, City Council approved Developer's proposed public
artwork by artist Norie Sato; and
WHEREAS, Developer has entered into a contract with artist Norie Sato to complete the
approved artwork; and
WHEREAS, Dublin's Public Art Ordinance, Municipal Code section 8.58.070(D) requires
that Developer execute an agreement with the City prior to occupancy of the first structure in the
project, which sets forth the ownership, maintenance responsibilities, and insurance coverage for
the public artwork; and
WHEREAS, the City of Dublin and the Developer desire to enter into an agreement for the
installation, ownership, and maintenance of City Council approved public art.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
hereby approve the Avalon West Dublin Public Art Installation Agreement, attached hereto as
Exhibit A to this Resolution.
BE IT FURTHER RESOLVED that the City Manager, or designee, is authorized to execute
Exhibit A and make any necessary, non -substantive changes to Exhibit A to carry out the intent
of this Resolution.
{Signatures on the following page}
Reso. No. 43-23, Item 4.2, Adopted 06/06/2023 Page 1 of 2
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PASSED, APPROVED AND ADOPTED this 6th day of June 2023, by the following vote:
AYES: Councilmembers Hu, Josey, McCorriston, Qaadri and Mayor Hernandez
NOES:
ABSENT:
ABSTAIN:
DocuSigned by:
rAittteiSS61 aLVV alAjti5
Mayor /H4bHS4bL.
ATTEST:
DocuSigned by:
CitybUecuH...
Reso. No. 43-23, Item 4.2, Adopted 06/06/2023 Page 2 of 2
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Exhibit A
PUBLIC ART INSTALLATION AGREEMENT
This PUBLIC ART INSTALLATION AGREEMENT ("Agreement") is dated as of June
6, 2023 ("Effective Date"), and is entered into between the CITY OF DUBLIN, a California
municipal corporation ("City"), and Avalon West Dublin, L.P., a Delaware Limited Partnership
("Developer"). City and Developer may be referred to individually as a "Party" or collectively
as the "Parties." City and Developer enter into this Agreement with reference to the following
recitals of fact (each, a "Recital"):
RECITALS
A. Developer is the owner of property in the City of Dublin ("City") generally
located South of St. Patrick's Way, West of Golden Gate Drive, East of Regional Street, and
known as Avalon West Dublin, 7688 Saint Patrick Way (APN 941-2855-001) ("Project").
B. City is the owner of property located immediately north of the Project that
includes a portion of the land included in the extension of Saint Patrick Way. The extension of
Saint Patrick Way is being constructed by Developer on behalf of the City. This extension
includes a seat wall, which is the site of a proposed public art piece that has also been proposed
by the Developer. Pursuant to the Artist Agreement discussed in Recital D below, Developer will
cause the installation of a public art project on the City -owned property, which will be solely
owned and maintained by Developer in accordance with the provisions outlined in the
Agreement for Long Term Encroachment for Landscape Features with Tract 8460, Avalon West
Dublin (County Recorder No. 2021371212) and the First Amendment thereto (Recorder No.
[INSERT RECORDING NUMBER FOR FIRST AMENDMENT TO ENCROACHMENT) (the
Agreement for Long Term Encroachment and the First Amendment thereto are collectively
referred to as "Long Term Encroachment Agreement").
C. On May 1, 2018, the City Council approved Resolution No. 40-18, approving
Vesting Tentative Map No. 10809 (the "Map") and Site Development Review Permit for the
Project. Condition of approval Number 20 (the "Condition") requires Developer (i) to acquire
and install a public art project in accordance with Chapter 8.58 of the City Municipal Code
valued at a minimum of $691,007.93, (ii) to comply with the Project's public art compliance
report submitted by the Developer and on file with the City, and (iii) to, prior to first occupancy,
(a) secure completion of the public art project in a manner deemed satisfactory to the City and
(b) execute an agreement between the City and Developer that sets forth the ownership,
maintenance responsibilities and insurance coverage for the public art project.
D. Developer entered into a Public Art Agreement with Norie Sato dba Sato Service
LLC ("Artist"), on or around June 6, 2022 ("Artist Agreement"). Under the Artist Agreement,
the Artist agreed to design, fabricate and install public art on the property owned by the City.
The Artist Agreement contains maintenance provisions, warranties, standards and releases. A
copy of the Artist Agreement is attached hereto and incorporated herein by reference as "Exhibit
A."
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E. On December 8, 2022, the Heritage and Cultural Arts Commission reviewed the
proposed public art project prepared by the Developer ("Public Art") and recommended
approval of the Public Art to the City Council. The Public Art consists of a series of curved,
perforated, painted metal panels with decorative light fixtures spanning nearly 400 feet adjacent
to St. Patrick's Way. The Public Art will be installed in the locations set forth on "Exhibit B,"
which is attached hereto and incorporated herein by reference.
F. The Parties desire to enter into this Agreement to memorialize the City's approval
of the Public Art and outline the terms and conditions of Developer's installation of the Public
Art.
G. Concurrently with the execution of this Agreement, the Parties are entering into
that certain First Amendment to Long Term Encroachment Agreement that sets forth certain
ownership and maintenance obligations regarding the Public Art.
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION AND THE
PROMISES AND COVENANTS OF CITY AND DEVELOPER SET FORTH IN THIS
AGREEMENT, CITY AND DEVELOPER AGREE, AS FOLLOWS:
TERMS AND CONDITIONS
1. PUBLIC ART INSTALLATION AND OWNERSHIP
1.1 Installation and City Manager Determination. Developer shall cause the Public
Art to be installed on the Property at the locations set forth on Exhibit B. Developer is solely
responsible for ensuring that installation of the Public Art complies with the Visual Artists
Rights Act of 1990 ("VARA") and the California Artists Preservation Act ("CAPA") to the
extent applicable and Developer is solely responsible for obtaining any necessary waivers,
releases or permission from the artist pursuant to the aforementioned statutes prior to installation.
In addition, Developer is responsible for obtaining, prior to installation, all necessary waivers,
releases and permission from the artist pursuant to the aforementioned statutes to permit the City
to remove or relocate the Public Art in the event that the Public Art conflicts with future
improvements or future plans proposed by the City prior to installation. Within ten (10) working
days of notice of the installation, the City Manager, or his designee, shall determine if the Public
Art has been completed in a satisfactory manner, which determination shall not be unreasonably
withheld, conditioned or delayed and shall be made if in the determination of the City Manager,
the Public Art is in compliance with the Site Development Review Permit Condition, Long Term
Encroachment Agreement, and Artist Agreement. If the City Manager determines that the Public
Art is not in compliance with the aforementioned approvals, the City Manager shall provide
written notice to Charlie Koch, Development Manager at AvalonBay Communities
(charlie_koch@avalonbay.com), specifying the corrective work needed for compliance within
this ten (10) day period. In the event that corrective work is required to bring the Public Art into
compliance, Developer will notify the City upon completion of the corrective work, and the City
Manager will again be permitted ten (10) days to inspect the work as provided in this paragraph.
If the City Manager reasonably determines that additional time is needed in order to evaluate
whether the Public Art is in compliance with aforementioned approvals, the City Manager will
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provide written notice to the Developer within the ten (10) day period advising of the need for
additional time and provide the factual basis to support the need for the additional time.
1.2 Ownership and Developer's Maintenance. Following the City's approval or
deemed approval, as set forth in Section 1.1 above, Developer shall accept the Public Art from
the Artist. Thereafter, Developer shall own the Public Art and shall maintain the Public Art in
accordance with the requirements of the Long Term Encroachment Agreement.
1.3 Security. If the installation of the Public Art will not take place prior to occupancy
of the Project, Developer shall furnish City with the following security in a form satisfactory to
the City Attorney for the installation of Public Art.
(a) Faithful Performance. Either a cash deposit, a corporate surety
bond issued by a company duly and legally licensed to conduct a general surety business in the
State of California, or an irrevocable instrument of credit in favor of and payable to the City
equivalent to one hundred percent (100%) of the estimate set forth in Exhibit C and sufficient to
assure City that the Public Art will be satisfactorily installed. Any bond or instrument of credit
shall be subject to approval as to form by the City Attorney, which such approval shall not be
unreasonably withheld, delayed, conditioned or denied.
(b) Labor and Materials. Either a cash deposit, a corporate surety
bond issued by a company duly and legally licensed to conduct a general surety business in the
State of California, or an irrevocable instrument of credit in favor of and payable to the City
equivalent to one -hundred percent (100%) of the estimate set forth in Exhibit C and sufficient to
assure City that persons furnishing labor, materials, or equipment shall be paid therefore. Any
bond or instrument of credit shall be subject to approval as to form by the City Attorney, which
such approval shall not be unreasonably withheld, delayed, conditioned or denied.
(c) City shall be the sole indemnitee named on any security required
by this Agreement.
(d) Within ten (10) calendar days of notice of the installation, the City
Manager, or his/her designee, shall determine if the Public Art has been completed and installed
in a satisfactory manner, which determination shall not be unreasonably withheld, conditioned or
delayed and shall be made if, in the determination of the City Manager, the Public Art is in
substantial compliance with this Agreement, and the applicable Artist Agreements, as applicable.
The security set forth in this Section 1.2 shall be released upon such determination. If such
determination cannot be made, the City Manager shall provide written notice pursuant to Section
2.2 specifying the corrective work needed for compliance within this ten (10) day time period.
In the event that corrective work is required to bring the Public Art into compliance, Developer
will notify the City upon completion of the corrective work, and the City Manager will again be
permitted ten (10) days to inspect the work as provided in this paragraph.
1.4 Insurance and Indemnification.
(a) Throughout the fabrication and installation of the Public Art as
contemplated by this Agreement, Developer and Artist are required to secure and maintain
commercial general liability and automobile liability policies covering personal injury or
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property damage associated with the Public Art and fabrication and installation thereof, such
insurance shall include a combined single limit policy of liability insurance not less than one
million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) in the
aggregate insurance during the fabrication and installation phases of the Public Art as set forth
further in the Artist Agreement.
(b) All Policy Requirements. Developer shall provide City with
verification of the required insurance under the Artist Agreement. All insurance policies
contemplated by this Section shall be placed with insurers with a Bests' rating of no less than
A:VII and shall name the City and its officers, officials, employees and volunteers as an
additional insured on all such policies. Endorsements must state that coverage is primary
insurance with respect to the City and its officers, officials, employees and volunteers, and that
no insurance or self-insurance maintained by the City shall be called upon to contribute to a loss
under the coverage. Any failure of Developer to comply with reporting provisions of the policy
shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
Developer shall notify City within 14 days of notification from Developer's insurer if such
coverage is suspended, voided or reduced in coverage or in limits. In the event that any policy
contemplated in this Section includes a self -insured retention payment of which is limited to the
named insured, such policy will be modified by special endorsement to allow for payment of the
self -insured retention by additional insureds.
(c) Indemnification. Developer shall hold harmless, indemnify and, at
the City's request, defend City (with counsel reasonably acceptable to City), its officers,
employees, authorized agents, boards and commissions, whether elected or appointed, from and
against all third party claims, demands, actions, causes of action, losses, damages, liabilities,
costs and expenses, including but not limited to reasonable attorney's fees or obligations, for or
in connection with any claim that the Artist's rights under VARA or CAPA have been violated,
as well as in connection with any claim related to personal injury (including, but not limited to,
death) or damage to property (both real and personal) to the extent arising out of or connected
with the negligent act, error or omission of Developer, its agents, contractors, subcontractors, or
employees in connection with the performance of this Agreement. The foregoing hold harmless
statement of Developer shall apply to all damages and claims for damages of every kind suffered
or alleged to have been suffered by reason of the activities undertaken pursuant to this
Agreement, regardless of whether or not City has approved the plans or specifications for the
Public Art and regardless of whether or not insurance policies have been determined to be
applicable to any such damages or claims for damages.
1.5 Satisfaction of the Condition. City agrees that compliance with this Agreement
and the Long Term Encroachment Agreement shall fully satisfy the Condition. Provided
Developer is in substantial compliance with this Agreement and the Long Term Encroachment
Agreement and has otherwise fulfilled any non -Public Art -related requirements, the City may not
withhold issuance of Project building permits and/or certificates of occupancy, including but not
limited to the first certificate of occupancy for the Project, based on the Condition.
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2. GENERAL PROVISIONS
2.1 Incorporation of Recitals. The Recitals set forth above are true and correct and
incorporated into this Agreement by reference.
2.2 Notices, Demands and Communications Between the Parties.
2.2.1 Delivery. Any and all notices submitted by any Party to another Party
pursuant to or as required by this Agreement shall be proper if in writing and dispatched by
messenger for immediate personal delivery, nationally recognized overnight (one business day)
courier (i.e., United Parcel Service, Federal Express, etc.) or by registered or certified United
States mail, postage prepaid, return receipt requested, to the address of the recipient Party, as
designated in this Section. Notices may be sent in the same manner to such other addresses as
the Parties may from time to time designate by notice in accordance with this Section. Notice
shall be deemed received by the addressee, regardless of whether or when any return receipt is
received by the sender or the date set forth on such return receipt, on the day that it is dispatched
by messenger for immediate personal delivery, one business day after delivery to a nationally
recognized overnight carrier or two (2) calendar days after it is placed in the United States mail
in accordance with this Section 2.2.1. Any attorney representing a Party may give any notice on
behalf of such Party.
2.2.2 Addresses. The notice addresses for the Parties, as of the Effective
Date, are as follows:
To Developer:
Avalon West Dublin, L.P.
455 Market St., Suite 1650
San Francisco, CA 94105
Attn: Charlie Koch
Via email: Charlie_Koch@avalonbay.com
To City:
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attn: City Manager
With a copy to:
Meyers Nave
555 12th Street, Suite 1500
Oakland, CA 94607
Attn: City Attorney
To Artist:
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Norie Sato dba Sato Service LLC
1045 NE 88th St.
Seattle, WA 98115
Via email: satoservice@seanet.com / 206-235-4287
2.3 Relationship of Parties. The Parties each intend and agree that City and
Developer are independent contracting entities and do not intend by this Agreement to create any
partnership, joint venture, or similar business arrangement, relationship or association between
them.
2.4 Legal Actions. Either Party may institute legal action, at law or in equity, to
enforce or interpret the rights or obligations of the Parties under this Agreement or recover
damages.
2.5 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this
Agreement, the rights and remedies of the Parties set forth in this Agreement are cumulative and
the exercise by a Party of one or more of such rights or remedies shall not preclude the exercise
by such Party, at the same or different times, of any other rights or remedies for the same default
or the same rights or remedies for any other default by the other Party or Parties.
2.6 Principles of Interpretation. A word, term or phrase defined in the singular in this
Agreement may be used in the plural, and vice versa, all in accordance with ordinary principles
of English grammar, which shall govern all language in this Agreement. The words "include"
and "including" in this Agreement shall be construed to be followed by the words: "without
limitation." Each collective noun in this Agreement shall be interpreted as if followed by the
words "(or any part of it)," except where the context clearly requires otherwise. Every reference
to any document, including this Agreement, refers to such document, as modified from time to
time (excepting any modification that violates this Agreement), and includes all exhibits,
schedules, addenda and riders to such document. The word "or" in this Agreement includes the
word "and." Every reference to a law, statute, regulation, order, form or similar governmental
requirement refers to each such requirement as amended, modified, renumbered, superseded or
succeeded, from time to time.
2.7 Governing Law. The procedural and substantive laws of California shall govern
the interpretation and enforcement of this Agreement, without application of conflicts or choice
of laws principles. The Parties acknowledge and agree that this Agreement is entered into, is to
be fully performed in and relates to real property located in the County of Alameda, State of
California. All legal actions arising from this Agreement shall be filed in the Superior Court of
California in and for the County of Alameda or in the United States District Court with
jurisdiction in the County.
2.8 No Third -Party Beneficiaries. Nothing in this Agreement, express or implied, is
intended to confer any rights or remedies under or by reason of this Agreement on any person or
entity other than the Parties and their respective permitted successors and assigns, nor is anything
in this Agreement intended to relieve or discharge any obligation of any third person to any Party
or give any third person any right of subrogation or action over or against any Party.
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2.9 Time Declared to be of the Essence. As to the performance of any obligation
under this Agreement of which time is a component, the performance of such obligation within
the time specified is of the essence.
2.10 Legal Costs. In the event that a Party brings an action to enforce this Agreement
or otherwise arising out of this Agreement, the prevailing Party in such action shall be entitled to
recover from the other Party its Legal Costs (which shall be defined to include all reasonable
costs and expenses such Party incurs in any legal proceeding, or other matter for which such
Party is entitled to be reimbursed for its Legal Costs, including reasonable attorneys' fees, court
costs and expenses and consultant and expert witness fees and expenses).
2.11 Entire Agreement. This Agreement integrates all of the terms and conditions
mentioned in this Agreement or incidental to this Agreement, and supersedes all negotiations or
previous agreements between the Parties with respect to all or any portion of the Public Art.
2.12 Waivers and Amendments. All waivers of the provisions of this Agreement and
all amendments to this Agreement must be in writing and signed by the appropriate authorities of
the Parties. Failure to insist on any one occasion upon strict compliance with any term,
covenant, condition, restriction or agreement contained in this Agreement shall not be deemed a
waiver of such term, covenant, condition, restriction or agreement, nor shall any waiver or
relinquishment of any rights or powers under this Agreement, at any one time or more times, be
deemed a waiver or relinquishment of such right or power at any other time or times.
2.13 Assignment. With the City's written consent, which will not be unreasonably
withheld or delayed, Developer may assign the rights, interests and obligations of Developer
arising under this Agreement to a homeowners' association formed for the Project or to a
successor in interest or assignee of Developer at which point Developer shall have no further
liability hereunder. Developer shall notify the City in writing of the assignment at least thirty
(30) calendar days following completion of the assignment.
2.14 Successors and Assigns. All references to the Developer in this Agreement shall
be deemed to refer to and include Avalon West Dublin L.P., a Delaware Limited Partnership,
and all successors and assigns to Avalon West Dublin L.P., a Delaware Limited Partnership.
2.15 Survival of Agreement. All of the provisions of this Agreement shall be
applicable to any dispute between the Parties arising from this Agreement, whether prior to or
following expiration or termination of this Agreement, until any such dispute is finally and
completely resolved between the Parties, either by written settlement, entry of a non -appealable
judgment or expiration of all applicable statutory limitations periods and all terms and conditions
of this Agreement relating to dispute resolution and limitations on damages or remedies shall
survive any expiration or termination of this Agreement.
2.16 Counterparts. This Assignment may be executed in one or more counterparts.
All counterparts so executed shall constitute one agreement, binding on all Parties, even though
all Parties are not signatory to the same counterpart. The Parties agree to accept signed copies of
this Agreement transmitted by electronic facsimile copies as original documents. The Parties
acknowledge that copies of this Assignment may be transmitted by a Party over the Internet and
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printed by the recipient and that the printed document may contain different type styles and type
sizes, different pagination and different formatting that the original copy of the Assignment in
the possession of the Party sending the Assignment. The Parties agree that any such copies of
this Assignment shall be accepted by the Parties as true and correct originals of the Assignment
so long as the actual text of the Assignment remains the same. This Agreement constitutes the
entire understanding and Agreement of the Parties regarding the subject matter of this
Agreement.
IN WITNESS WHEREOF, the Parties have signed this Agreement by and through the
signatures of their respective authorized representative(s) as follow:
CITY:
CITY OF DUBLIN, a California municipal
corporation
By:
Name: Linda Smith
Title: City Manager
ATTEST:
By:
Name: Marsha Moore
Title: City Clerk
APPROVED AS TO FORM:
By:
Name: John Bakker
Title: City Attorney
DEVELOPER:
Avalon West Dublin L.P., a Delaware Limited
Party, aroly i r,
DocuSigned by:
By: t, .iVstithrt-r
2ED2428F56DA44F...
Name: Joe Kirchofer
Title: Senior Vice President - Development
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EXHIBIT A
Artist Agreement
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ARTWORK COMMISSION AGREEMENT
This Artwork Commission Agreement ("Agreement") is entered into as of June 6, 2022 (the
"Effective Date") by and between AvalonBay Communities, Inc. ("Client") and Norie Sato dba
Sato Service LLC ("Artist"). Client and Artist are, each, a "Party" and, collectively, the
"Parties."
WHEREAS, Client is building a 499-unit apartment building located at 7688 Saint Patrick Way,
in Dublin, CA and associated improvements to the public street Saint Patrick Way; and
WHEREAS Artist has been commissioned by Client to create a site -specific sculptural work
called " ACROSSROADACROSS" ("Artwork"),
NOW, THEREFORE, in consideration of good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and incorporating the foregoing recitals, the
Parties hereby agree as follows:
1. SCOPE OF SERVICES
(a) Artist's Obligations.
Subject to the terms and conditions of this Agreement, Artist shall:
(i) perform all services and furnish all supplies, material labor and/or equipment as
necessary for the design and fabrication of the Artwork at the Site, as defined in Artist's
Design Proposal attached hereto as Exhibit A (the "Proposal"), in accordance with the
specified schedule. Services shall be performed in a professional manner and in strict
compliance with all terms and conditions in this Agreement;
(ii) determine Artistic expression, design, dimensions and materials of the Artwork,
subject to review and acceptance by Client as set forth in this Agreement. To ensure that
the Artwork as installed shall not interfere with the intended use of the Site, pedestrian and
other traffic flow, parking, and safety devices and procedures at the Site, Artist's proposal
shall be reviewed and approved by Client or applicable city departments, and where
appropriate, the project architect to ensure compliance with these objectives;
(iii) prepare the design concept in corresponding accordance with the budget, approved
by Client ("Budget") attached as Exhibit B and made a part hereof. The design concept
shall include a description of all materials and products utilized in the Artwork and the
required routine care and upkeep involved;
(iv) attend in person or by phone design and construction coordination meetings with
Client, general contractor, architect and other parties, as appropriate, to communicate about
the Artwork and to ensure appropriate integration and/or installation of the Artwork;
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(v) coordinate with Client's architect, engineers, other consultants, contractors, and
subcontractors (collectively, "Client's Consultants") and provide sufficient information
and detail to Clent's Consultants in order to confirm that the design and development of
the Artwork meets the standards provided for in applicable codes, laws and regulations (the
"Structural Specifications"). Artist shall be responsible for coordinating their design to the
site's existing conditions and to the landscape, civil, electrical, and joint trench designs that
will be built at the site of the artwork. Should any modifications to these landscape, civil,
electrical, or joint trench designs be required to accommodate the artwork, the artist shall
request these modifications in as timely a manner as possible;
(vi) complete the fabrication of the Artwork by the scheduled installation date as
provided in Exhibit C attached hereto and made a part herof,
(vii) arrange the transportation and installation of the Artwork in consultation with
Client by the estimated completion date of _11/15/2023 (the "Final Completion
Date"), or such date as the Parties may agree upon in writing. Notwithstanding the
foregoing, however, in the event of a Force Majeure (as defined in Section 7(b) below), the
Final Completion Date shall be extended for an additional period equal to the amount of
delay caused by such event of Force Majeure. If Artist does not install the Artwork himself
or herself, Artist shall supervise and approve the installation;
(viii) provide required insurance in amounts and limits specified in Section 16 and
Exhibit D:
(ix) provide Client with a list of all subcontractors, if any, along with a copy of the
agreement between Artist and each subcontractor;
(x) provide a maintenance manual with a description of all materials and products
utilized in the Artwork and the required care and upkeep involved; and
(xi) provide photographic documentation of the Artwork in development.
(xii) Lights to be installed in artwork by Artist; and lights, timer, and controller are
included in Artist budget. Artist agrees to ensure that the budget for additional electrical
needs to be handle by MCH Electric and payed separately by AvalonBay does not exceed
$35,000.
(b) Client's Obligations
Subject to the terms and conditions of this Agreement, Client shall:
(i) be responsible for providing Artist, at no expense to Artist, copies of existing
designs, drawings, reports, and other existing relevant data, if any, in Client's possession,
which is needed by Artist in order to perform;
(ii) appoint an individual employee or consultant of AvalonBay to serve as its
representative with regard to the design and installation of the Artwork. Such individual's
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role shall include, at a minimum, the communication of AvalonBay's design aesthetic to
Artist, so as to avoid conflicting viewpoints and instructions.
(iii) coordinate any necessary site preparation with Artist, including before the building
is completed, so as to minimize site preparation costs to Artist as possible. Should artwork
installation take place after completion of the Project, AvalonBay agrees to provide access
to the installation site. Should Artist be informed of or discover unforeseen site conditions
that were not previously known that result in the need for design changes that result in
additional costs, such changes shall be subject to discussion and approval.
(iv) be responsible for the excavation and installation of the seatwall;
(v) be responsible for cost of artwork conduit & junction boxes, electrical wires,
pulling of wires, and attaching wires to artwork lights, timer, and controller in
building's equpment room that will not exceed $35,000 and will installed by MCH Electric.
(vi) secure any and all required licenses, permits and similar legal authorizations at
Artist's expense as may be necessary for the installation and maintenance of the Artwork
at the Site.
(c) Cooperation. Subject to the terms and conditions set forth in this Agreement,
Artist and Client together shall cooperate and exchange such information as is reasonably
required to coordinate work on the specific details of the installation of the Artwork.
2. DESIGN
(a) Approval. Prior to execution of this Agreement, Client has had the opportunity
to notify Artist if it requires any revisions to the Artwork design (the "Design") in order to comply
with any applicable laws, ordinances and/or regulations or for other reasons including, but not
limited to, ensuring the physical integrity of the Artwork or its installation at the Site. If such
notification has been delivered, Artist shall use best efforts to incorporate such revisions as part of
the Design.
(b) Final/Construction Documents.
(i) Artist will provide structural engineering drawings, as needed, prepared by a
qualified engineer, licensed by the state and paid by Artist, certifying that the Artwork will
be of adequate structural integrity and Artist shall provide Client with such certification.
(ii) Where appropriate, as determined by Client, Artist shall present the Design to a
qualified conservator, who will make recommendations on the maintenance of the
Artwork, and Artist shall provide a written copy of the conservator's recommendations to
Client.
3. CHANGES TO THE DESIGN
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(a) Artist Revisions. Prior to the execution of any change in the approved Design,
Artist shall present proposed changes in writing to Client for further review and approval. Artist
must provide a detailed description of any significant changes in Artistic expression, design,
dimensions and materials of the Artwork that is not permitted by nor in substantial conformity
with the already approved Design or any change that affects the Budget. Such notice will also
include a detailed description of any additional costs that may be incurred or changes in the Budget.
A significant change is any change that materially affects installation, scheduling, Site preparation
or maintenance of the Artwork or the concept of the Artwork as represented in the Design or is
visible to the general public.
(b) Approval. If Client approves the changes, Client shall promptly notify Artist in
writing. If Client disapproves of the changes, Client shall promptly notify Artist in writing and
Artist shall continue to fabricate the Artwork in substantial conformity with the Design. Should
the Artist requested changes be caused by a site condition that was unknown at the time of this
proposal and/or is subsequently brought to Artist's attention by AvalonBay or its contractors,
should AvalonBay disapprove the changes requested by Artist, AvalonBay shall bear legal and
financial liability for any matters arising from its disapproval of the requested changes.
4. FABRICATION STAGE
(a) Conformity to Design. Artist shall fabricate and install the Artwork in substantial
conformity with the Design. Artist may not deviate from the approved Design without written
approval of Client.
(b) Protection of Artwork. Artist shall take reasonable measures to protect or
preserve the integrity of the Artwork such as the application of protective or anti -graffiti coatings,
if applicable, unless Client disapproves. If the Artwork is being
constructed on -site, Artist shall avoid creating nuisance conditions arising out of Artist's
operations. Prior to requesting authorization to transport and install the Artwork, Artist shall be
required to provide Client with a list of all workers or subcontractors and equipment to be used
along with the hours of operation and the scope of work to be performed on site. All additional
workers or subcontractors must provide proof of insurance prior to entering the Site.
(c) Client Review. Client shall have the right to review the Artwork at reasonable
times during the fabrication, upon reasonable notice. If Client, upon review of the Artwork,
determines that the Artwork does not conform to the Design or a revised and approved Design,
Client reserves the right to notify Artist in writing of the deficiencies and that Client intends to
withhold the next budget installment. If Artist disputes Client's determination that the Artwork
does not conform, Artist shall promptly submit reasons in writing to Client within seven (7) days
of Client's prior notification to the contrary. Client shall make reasonable efforts to resolve the
dispute with Artist in good faith.
(d) Artist Cure. In the event that Artist does not dispute Client's determination that
the Artwork does not conform, Artist will promptly cure Client's objections and will notify Client
in writing of completion of the cure. Client shall promptly review the Artwork, and upon approval
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shall release the next budget installment. Nothing in this Section 4 is intended to abrogate the
dispute resolution terms of Section 26, below.
(e) Notice of Completion. Artist shall notify Client in writing when fabrication of the
Artwork has been completed, and that the Artwork is ready for delivery and installation at the Site
if the Artwork was fabricated off -site.
(f) Inspection and Approval. Client shall inspect the Artwork within five (5) days
after receiving notification pursuant to paragraph (e), prior to installation, to determine that the
Artwork conforms with the Design and to give final approval of the Artwork. Client shall not
unreasonably withhold final approval of the fabricated Artwork. In the event that Client does
withhold final approval, Client shall submit the reasons for such disapproval in writing within five
(5) days of examining the fabricated Artwork. Artist shall then have ten (10) days from the date of
Client's notice of the disapproval to either dispute the basis for disapproval in writing or make the
necessary adjustments to the fabricated Artwork in accordance with such writing, unless such
adjustments require longer than ten days, in which case Artist will begin to make the adjustments
within ten days. Artist shall then be held responsible for any expenses incurred in correcting such
deviation.
(g) Installation Delays. Client shall promptly notify Artist of any delays impacting
installation of the Artwork. Any additional storage fees incurred as a result of such delays are the
responsibility of Client.
(h) Site Inspection. Artist shall be required to inspect the Site prior to the
transportation and installation of the Artwork and shall notify Client of any adverse Site conditions
readily apparent to Artist that will impact the installation of the Artwork.
5. FINAL ACCEPTANCE. Client shall inspect the installation of the Artwork within five
(5) days after receiving notification that installation of the approved Artwork has been completed,
to determine that the installation conforms with the Design and specifications. Client shall not
unreasonably withhold final approval of the installation. Client's final approval of the installation
shall constitute "Final Acceptance" of the Project.
6. COST AND PAYMENT
(a) Total Artwork Payment
The total payment due to Artist for the Artwork and all work to be performed under this
Agreement is an amount equal to $610,000 ( the "Total Artwork Payment").
(b) Budget and Milestone Payments
(i) The Artwork shall be completed in separately defined, successive stages (the
"Phases.")
(ii) A schedule of milestones in the design, fabrication, and installation Phases of the
Artwork is set forth on Exhibit C (the "Milestones").
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(iii) The initial Budget, set forth in Exhibit B, sets forth the direct costs of fabricating,
transporting, and installing the Artwork. The Budget may be amended from time to time,
in writing and signed by both Parties, to reflect updated, agreed -upon costs.
(c) Payment Terms and Schedule
(i) The Total Artwork Payment shall be earned and paid in installments upon the
achievement of the Milestones, pursuant to the terms in Exhibit C. Artist shall provide
Client two (2) weeks' notice and submit an invoice before the expected completion of any
Milestone so that Client is prepared to make the associated payment within thirty (30) days
of receipt of the invoice.
(ii) Artist shall notify Client of the tentative schedule for the fabrication and installation
of the Artwork, including a schedule for the submission of progress reports and inspections
if any. The Schedule may be amended by written agreement.
(iii) Client acknowledges that successive Phases are dependent upon prompt Milestone
payments. Artist is not be responsible for delays caused by Client's failure to make
payment when due.
(e) Taxes. Any state or federal sales, use or excise taxes, or similar charges relating to
the services and materials under this Agreement shall be paid by Artist in a timely fashion.
7. TIME OF PERFORMANCE. Time is of the essence in this Agreement. Artist shall
dedicate such time and effort as is necessary to fulfill Artist's obligations to completely finish and
install the Artwork to the satisfaction of Client within the timelines set forth in Exhibit C. except
as the Artwork may be delayed by circumstances described in Sections 6(c) or 7(b).
8. TERM
(a) Duration. This Agreement shall be effective on Effective Date and, unless
terminated earlier pursuant to such provisions in the Agreement, shall extend until Final
Acceptance, or submission of final payment to Artist by Client under Exhibit C, whichever is
later. Extension of time of performance hereunder may be granted upon the request of one Party
and the consent of the other thereto, which consent shall not be unreasonably withheld. Such
extension shall be in writing, signed by both Parties, and attached to the schedule under provided
in Exhibit C.
(b) Force Majeure. Client shall grant to Artist a reasonable extension of time in the
event that conditions beyond Artist's control render timely performance of Artist's services
impossible or unduly burdensome ("Force Majeure"). All such performance obligations shall be
suspended for the duration of the condition. Both Parties shall take all reasonable steps during the
existence of the condition to assure performance of their contractual obligations when the
condition no longer exists. Failure to fulfill contractual obligations due to conditions beyond either
Party's reasonable control will not be considered a breach of contract, provided that such
obligations shall be suspended only for the duration of such conditions.
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9. TERMINATION.
(a) Termination for Convenience. Client shall have the right to terminate this
Agreement for any reason at any time by giving ten (10) days' written notice to Artist to stop work.
Client shall pay Artist for all Milestone payments owed Artist through the date of termination, as
well as (i) all unreimbursed costs incurred by Artist to design, fabricate, or install the Artwork
from the completion date of the most recently completed Phase, and (ii) all future costs that Artist
cannot reasonably avoid that are reasonably related to performance of Artist's obligations
hereunder.
(b) Termination for Default. If Artist willfully or negligently fails to fulfill in a timely
manner, or otherwise violates any of the covenants, agreements or stipulations material to this
Agreement, Client shall thereupon have the right to terminate this Agreement by giving written
notice to Artist of its intent to terminate specifying the grounds for termination. Artist shall have
twenty (20) days after the effective date of the notice to cure the default, unless the default is not
capable of being cured within twenty days, in which case Artist shall commence to cure the default
within such time. If it is not timely cured, or the cure is not timely commenced, as applicable, this
Agreement shall terminate.
(c) Effect of Termination for Artist's Default.
(i) If Artist defaults for cause other than death or incapacitation, Artist shall return to
Client all funds provided by Client. Artist shall provide an accounting. All finished and
unfinished drawings, sketches, photographs and other Artwork products prepared and
submitted or prepared for submission by Artist under this Agreement shall be retained by
Artist. Artist shall retain the copyright in the Artwork and all rights under Section 13 and
Section 14.
(ii) Upon notice of termination, Artist and his/her subcontractors shall cease all
services affected.
10. DOCUMENTATION OF WORK. At the conclusion of the project Artist shall provide
to Client ten (10) high resolution (300 dpi minimum) digital images documenting the processes of
Artwork fabrication and installation and, contingent upon such transfer of title to the Artwork in
accordance with Section 11, Artist hereby sells, assigns, and transfers to Client the digital images
and agrees, on his/her own behalf and on behalf of his/her heirs, legatees and successors in interest,
not to assert any interest in the digital images inconsistent with the sale to Client hereunder and
after such sale, Client shall be the owner of the digital images. Nothing in this Section 10 is
intended to contravene the rights granted, reserved, and licensed in Section 14, below.
11. TRANSFER OF TITLE; RISK OF LOSS
(a) Title to the Artwork. Title to the Artwork will transfer to Cleint when (a) Artist
has completed and installed the Artwork, and (b) Artist has received full payment under Section 6,
above. Artist shall provide Client with a Transfer of Title Contingent upon such transfer of title.
Artist hereby sells, assigns, and transfers to Client the Artwork and agrees, on his/her own behalf
and on behalf of his/her heirs, legatees and successors in interest, not to assert any interest in the
Artwork inconsistent with the sale to Client hereunder and after such sale, Client shall be the owner
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of the Artwork. Risk of damage or loss in connection with the Artwork will transfer to Client
when the Artwork is installed. If the Artwork is damaged or destroyed in whole or in part prior to
such installation, Artist shall be responsible for restoring or replacing the Artwork and installing
the Artwork in accordance with the terms of this Agreement at his sole cost and expense, and
Client shall not be required to pay any additional amounts to Artist other than any portion of the
Total Artwork Payment not yet paid to Artist pursuant to Section 6 of this Agreement.
Notwithstanding the foregoing, Client shall pay all such cost and expense to the extent such
damage or destruction arises out of the negligence of Client or Client's contractors and employees,
which payments shall be in addition to the Total Artwork Payment set forth in Section 6(a).
12. ARTIST REPRESENTATIONS AND WARRANTIES.
(a) Warranties of Title
Artist warrants and represents to Client that:
(i) Artist holds all rights to the Artwork, free and clear of any liens, encumbrances,
licenses, or claims of any nature, and has not made any agreement inconsistent with the
commissioning of the Artwork to Client.
(ii) The Artwork is unique and original and shall not infringe on any third party's
intellectual property rights.
(iii) Artist will provide maintenance management manual, schedule and warranties for
two (2) years following completion as set forth in subpart (b), below. If unforeseen issues
arise (building construction related damage or vandalism) Artist will have an opportunity
to provide a proposal to repair the art and submit expenses for reimbursement by Client.
(iv) Artist has the full power to enter into and perform this Agreement and to make the
grant of rights contained in this Agreement.
(v) All services performed hereunder shall be performed in accordance with all
applicable laws, regulations, ordinances, etc. and with all necessary care, skill, and
diligence.
(vi) These representations and warranties shall survive the termination or other
extinction of this Agreement.
(b) Warranties of Quality and Condition
(i) Artist represents and warrants that all work will be performed in accordance with
professional "workmanlike" standards and free from defective or inferior materials and
workmanship (including any defects consisting of "inherent vice," or qualities that cause
or accelerate deterioration of the Artwork) for two years after the date of Final Acceptance
by Client under Section 5.
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(ii) Artist represents and warrants that the Artwork and the materials used are not
currently known to be harmful to public health and safety.
(iii) Artist represents and warrants that reasonable maintenance of the Artwork will not
require procedures substantially in excess of those described in the maintenance and
preservation recommendations submitted by Artist pursuant to Section 1(a)(xi).
(iv) If within two years Client observes any breach of warranty described in this Section
12(b) that is curable by Artist, Artist shall, at the request of Client, cure the breach
promptly, satisfactorily and consistent with professional conservation standards, at no
expense to Client. Client shall give notice to Artist of such breach with reasonable
promptness.
(v) If after two years Client observes any breach of warranty described in this Section
12(b) that is curable, Client shall contact Artist to make or supervise repairs or restorations.
Artist or Artist's subcontractor shall make or supervise repairs or restorations at Artist's or
Artist's subcontractor's then current professional hourly rates and direct expenses or such
work, payable by Client..
(vi) Acceptable Standard of Display. Artist represents and warrants that:
(a) General routine cleaning and repair of the Artwork and any associated
working parts and/or equipment will maintain the Artwork within an acceptable
standard of public display.
(b) Foreseeable exposure to the elements and general wear and tear will cause
the Artwork to experience only minor repairable damages and will not cause the
Artwork to fall below an acceptable standard of public display.
(c) With general routine cleaning and repair, and within the context of
foreseeable exposure to the elements and general wear and tear, the Artwork will
not experience irreparable conditions that do not fall within an acceptable standard
of public display, including mold, rust, fracturing, staining, chipping, tearing,
abrading and peeling. Notwithstanding the foregoing, Artist cannot warranty that
paint will withstand accidental or intentional damage, including scratching,
scraping, or the like.
(d) Manufacturer's Warranties. To the extent the Artwork incorporates products covered by a
manufacturer's warranty, Artist shall provide copies of such warranties to Client.
13. RIGHTS OF REPRODUCTION; INTELLECTUAL PROPERTY AND
PUBLICITY RIGHTS.
(a) Artist shall retain the copyright to the Artwork and the right to claim
authorship of the Artwork. Artist warrants that the Artwork is and shall be a limited
edition of one. Artist has not and, provided this Agreement is not terminated
pursuant to section 9, will not create a reproduction of the Artwork in the same size,
medium, and color without the written permission of Client.
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(b) Client shall ensure that Artist's name and copyright date is publicly displayed on,
at, or near the Artwork.
(c) In furtherance and not in limitation of the foregoing, contingent upon the transfer
of title to the Artwork noted in Section 11, above, Artist hereby grants to Client and its
successors, agents and representatives a non-exclusive, royalty -free, irrevocable,
worldwide license to create (i) photographic, video, or film images of the Artwork and to
distribute or use such images in connection with the ownership, management, promotion
and marketing of the Project This Section 13 is intended to be an express grant of limited
rights of reproduction under California Civil Code Section 982(c). No other rights of
reproduction are granted unless set forth herein. In no event may replicas of the Artwork
be offered for sale in any manner without separate authorization from Artist and express
written agreement between the Parties.
(d) Client shall have the right, upon Arist's prior approval which shall not be
unreasonably withheld, to use Artist's name, likeness, and biographical information, in
connection with the display or reproduction and distribution of the Artwork including all
advertising and promotional materials pursuant to section 13(c). Artist shall be reasonably
available to attend any inauguration or presentation ceremonies relating to the public
dedication of the Artwork.
14. ARTIST'S RIGHTS
(a) Artist Credited. Client shall use commercially reasonable efforts to identify Artist
as the creator of the Artwork.
(b) Right to Repair and/or Alter the Artwork. Client may make or authorize others to
repair, refurbish, or otherwise maintain the Artwork, or enter into a further agreement with
Artist for such services. Client will not intentionally alter, modify, change, destroy or
damage the Artwork without first obtaining permission from the Artist. Notwithstanding
the foregoing, If Client reasonably determines that the Artwork presents imminent harm or
hazard to the public, other than as a result of Client's failure to maintain the Artwork as
required under this Agreement, Client may authorize the removal of the Artwork without
the prior approval of the Artist.
(c) VARA and CAPA Rights. If any alteration or damage to the Artwork occurs after
installation and transfer of title, whether intentional or accidental and whether done by
Client or others, without Artist's consent, Artist shall have the right to disclaim
authorship of the Artwork in accordance with Visual Artists Rights Act (17 U.S.C. §§
106A and 113(d) (VARA) and the California Art Preservation Act (Cal. Civil Code §§
987 and 989) (CAPA), in addition to any remedies the Artist may have in law or equity
under this Agreement.
(d) Disposal of Artwork. In the event that Client intends to remove or dispose of the
Artwork, Client shall make reasonable good faith efforts to notify Artist. Artist shall have
sixty (60) calendar days from receipt of such notice to remove the Artwork, at Artist's
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expense. If Artist fails to remove the Artwork within that sixty-day period, Client may
dispose of the Artwork by any means, including destruction, in its sole discretion. For the
avoidance of doubt, the following activities, alone, shall not constitute disposal or
destruction: Relocation, whether temporary or permanent; storage for any length of time;
or transfer of possession.
(e) Precedence of Agreement. The terms of this section 14 are intended to replace and
substitute for the rights of the Artist under VARA, CAPA, or any other local, state, federal
or international moral rights laws that protect the integrity of works of art, to the extent that
any portion of this Agreement is in direct conflict with those rights. The Parties
acknowledge that this Agreement supersedes those laws to the extent that this Agreement
is in direct conflict therewith.
15. INDEMNITY
(a) By Artist. Artist shall defend, indemnify and hold Client, its members, and its
and their members, partners, officers, directors, employees and agents harmless from and against
all claims, demands, liabilities, losses, damages and expenses (including but not limited to
attorneys' and expert witness fees and costs) (collectively, "Liabilities"), and by whomsoever
brought arising out of Artist's breach of this Agreement or the actions or omissions of Artist,
Artist's subcontractors and agents, or anyone acting on behalf of Artist pursuant to Artist's
performance of this Agreement; provided that the foregoing indemnity does not apply to Liabilities
to the extent arising from the negligence or willful misconduct of the Client Indemnitees, their
respective subcontractors or agents. The obligations under this Section shall extend to any claim
or legal proceeding brought by employees of Artist against Client or other Indemnitees for injury
or death while rendering services in connection with this Agreement. Client's review and approval
of any documents prepared or furnished by Artist shall not relieve Artist of the foregoing
obligations. Artist shall also cause to be released of record any mechanics' or material suppliers'
liens encumbering Client's property which arise out of Artist's work or services and shall defend,
indemnify and hold harmless Client from any Liabilities arising out of or related to such liens.
(b) By Client. Client shall defend, hold harmless and indemnify Artist, his/her agents
and employees, and each and every one of them (collectively, the "Artist Indemnitees"), from
and against any and all Liabilities of every type and description (i) arising from personal injury or
death or damage to personal property that arise out of, pertain to or relate solely to any negligent
act or omission, recklessness or willful misconduct of Client, its subcontractors or agents, and their
respective officers and employees, in connection with Client's performance under this Agreement;
provided that the foregoing indemnity does not apply to liability for damages for death or bodily
injury to persons, injury to property, or other loss, damage or expense to the extent arising from
the sole negligence or willful misconduct of the Artist Indemnitees; or (ii) arising from or related
to Client's breach of this Agreement.
(c) Survival: The provisions of this Section 15 shall survive any expiration or
termination of this Agreement.
(d) Notice. The Indemnified Party shall provide prompt notice to the Indemnifying
Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will
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assume the defense of the claim through counsel designated by it and reasonably acceptable to the
Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to
the entry of any judgment, without written consent of the Indemnified Party, which will not be
unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying
Party in the defense of a claim, at Indemnifying Party's expense. The Indemnified Party at its own
expense may hire counsel to participate in the defense of a claim.
16. INSURANCE. Artist shall obtain and maintain, at its expense, with a carrier authorized
to do business in California and having a Best's rating of at least A-VIII, the insurance specified
on Exhibit D.
17. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE
TO THE OTHER PARTY UNDER ANY THEORY OF TORT, CONTRACT, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, LOST
REVENUE, OR LOSS OF BUSINESS, WHICH ARE HEREBY EXCLUDED BY
AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH LOST PROFITS,
LOST REVENUE, OR LOSS OF BUSINESS WAS FORESEEABLE OR WHETHER A PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. THE PROVISIONS OF THIS
SECTION 16 SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS
AGREEMENT.
18. NOTICE. Any notices or other communications hereunder may be in writing and will be
deemed delivered (a) when personally delivered to the Party to whom directed, (b) five (5) days
following deposit in the United States mail, certified mail, return receipt requested, (c) the next
business day following the date of deposit with FedEx (or other nationally recognized overnight
delivery service) for next day delivery, or (d) by email, and will be effective when receipt is
acknowledged, addressed to the Parties at the following addresses, or at addresses later provided
by written notice to the other Party in the manner provided in this paragraph:
If to Artist: Norie Sato dba Sato Service LLC
1045 NE 88th St.
_Seattle, WA 98115
satoservice@,seanet.com / 206 235-4287
If to Client:
Either Party may change the contact information in this Section by written notice to the other Party.
Artist agrees that notice delivered by Client pursuant to this Section 18 shall constitute a diligent
attempt to contact Artist under Section 987 of the California Civil Code.
19. ASSIGNMENT. Client shall have the right to assign all or any part of its rights under this
Agreement in its discretion, including but not limited to transferring such rights to a successor
owner or tenant of the Project. The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the Parties hereto.
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20. EXHIBITS. All exhibits referred to herein are attached hereto and are by this reference
incorporated as if set forth fully herein.
21. AMENDMENT. This Agreement, including any Exhibits thereto, may be amended
only in writing signed by the Party against whom, or against whose successors and assigns,
enforcement of the change is sought.
22. BINDING EFFECT. This Agreement shall be binding on the heirs, executors,
administrators, successors and assigns of the Parties.
23. SEVERABILITY. If any term, provision, or application of this Agreement is held
invalid or unenforceable, the remainder of this Agreement, and any application of its terms and
provisions will not be affected by that invalidity, but will remain valid and enforceable.
24. SOLE AGREEMENT. This Agreement constitutes the sole agreement between Artist
and Client respecting the transfer of rights to the Artwork, and correctly sets forth mutual
obligations of Artist and Client as of its date. Any agreements or representations respecting the
subject matter hereof not expressly set forth in this Agreement are null and void.
25. CHOICE OF LAW AND DISPUTE RESOLUTION.
(a) Comply With Laws. Artist, its employees, subcontractors and others acting under
Artist's direction or control shall at all times observe and comply with any and all applicable laws,
regulations and governmental orders and official interpretations thereof, including, but not limited
to, all orders of governmental bodies and agencies relating to the safety of employees or to safety
in the performance of the work. Artist shall obtain and maintain all applicable licenses and permits
for the conduct of its business and performance of services specified in this Agreement.
(b) Arbitration. Any controversy or claim arising out of or related to this Agreement,
or the breach thereof, however, characterized, shall be resolved through a binding, non-public
arbitration before a single arbitrator selected as provided in this Section. Any Party initiating
arbitration shall give written notice to the other Party, which notice shall state with particularity
the nature of the dispute and the basis and computation of the demand for relief, making specific
reference to the provisions of this Agreement pertaining to the dispute. At the option of Client by
notice to Artist, if all or part of the resolution of such dispute would require the participation as a
party by a person or entity that is not similarly bound to participate in this arbitration or does not
agree to be joined in such arbitration, the provisions of this Section shall not apply to such dispute.
The Parties agree to use the services of JAMS/ENDISPUTE ("JAMS") located in San Francisco,
California, or a successor or similar dispute resolution service if JAMS is no longer in existence.
If the Parties cannot agree upon an arbitrator within fourteen (14) days following the giving of
demand for arbitration, either of the Parties shall request that JAMS provide a list of no less than
five potential arbitrators. Any potential arbitrators shall be former judges in either the California
Superior Court or the Court of Appeals or persons who shall have had at least fifteen (15) years of
continuous experience in a business relating to the issue to be resolved in the San Francisco Bay
Area and not have been employed by either of the parties to this dispute within the preceding five
(5) years. .
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26. INDEPENDENT CONTRACTOR. Artist agrees to perform all Artwork under this
Agreement as an independent contractor and not as an agent or employee of Client. Artist
acknowledges and agrees that Artist shall not hold himself or herself out as an authorized agent of
Client with the power to bind Client in any manner. Artist shall be solely responsible for any
withholdings, deductions or payments which may be required in connection with payments he/she
receives. Artist shall provide Client with Artist's Tax Identification Number and any proof of such
number as requested by Client.
27. COUNTERPARTS. This Agreement may be executed in counterparts with all those
counterparts together constituting one original of this Agreement
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
day and year first above written.
ARTIST:
Date: June 3, 2022
By: Sato Service LLC
Name: Norie Sato
Title: Artist/Manaaer
Date: June 3, 2022
CLIENT:
By: AVALONBAY COMMUNITIES, INC.,
a Maryland rporatio
By: 4.7fi,
Joe Kirchofer
Vice President, Development
Date: 6/8/2Z'
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Artist Agreement Exhibit A
ACROSSROADS
nr7 oritl.lAi proposal
Norie Sato, artist
May 2022 revision
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DocuSign Envelope ID: 91 E18C8B-6332-4E18-B969-926165A93030
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DocuSign Envelope ID: 91E18C8B-6332-4E18-B969-926165A93030
The Artwork:
1. A Series of curved aluminum panels laser cut with various patterns create layering, moire pattern movement and shifting views as one moves along the length of the
road. Depending on the speed and location, different combinations and legibility of various images emerge, disappear, become abstract, pull into focus. These panels will create
the bulk of the screening and a backdrop to the street. The curves soften the effect of the screen, while layering images and allowing interesting juxtapositions between different
panels.
The panels will be created in collaboration with AZahner Company, a fabricator based in Kansas City, using their ImageLines system of transforming images into perforations. This
"standardization" allows for a more cost effective method of producing dynamic and unique image effects. They have a great deal of expertise, capability and options for materials
and other fabrication techniques. I have worked with them on other recent projects and feel them uniquely well -suited for this project and complexities.
The proposed material is painted aluminum which will be bent and cut as necessary for structure and attachment. The attachment to the concrete seating wall will be mechanical,
using stainless steel fasteners, galvanized steel angles, which will allow for strength, permanence, yet replaceability.
The height of the screens are 5' X various lengths. When placed on an 18" high seating wall, the height of the screens will be 6'8" above grade.
In the proposed layout, approximately 146 panels are included. Some variation in height could be introduced, if final engineering and budget allow.
2. Lighting will be incorporated in 2 ways: A): Cylindrical colums out of the same panel materials and colors with perforated patterns and up lights at bottom
B): "Clover Flower" lights are whimsical sculptural interpretations of a clover flower, continuing the thematic connection emanate light from the "petals" placed on a pole and
create a counterpoint to the geometry of the screenwall and other lighting.
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DocuSign Envelope ID: 91 E18C8B-6332-4E18-B969-926165A93030
DIAGRAMMATIC OVERVIEW OF THE ARTWORK
These drawings show the layout and colors of the panels over the length of the site. These are at the proposed scale owever, some modulation may occur
during final design/modulation to create some variation.
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ELEVATION VIEW
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PLAN VIEW (FROM ABOVE)
DocuSign Envelope ID: 91E18C8B-6332-4E18-B969-926165A93030
A more detailed view of elements of the art screen showing:
Curved panels in a variety of shapes, orientation
Color: 5-10 colors of painted aluminum proposed
Each panel will be custom perforated in a variety n' +-
idea of "threes"
2 Lighting elements: Uplit cylinder and "Clover Flower" lights
DocuSign Envelope ID: 91 E18C8B-6332-4E18-B969-926165A93030
ZAHNER
1400 E. Ninth Street
Kansas City, Missouri 64106
(816)474-8882
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JOB #:
JOB NAMF•
BY:
DATE:
52.00
stacked fasteners say 6"
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PRELIMINARY ENGINEERING AND ATTACHMENTS
MATERIAL.
FINISH:
TYPE
NOTES:
4' rolled SS angle
Note: these angles
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double returns, stronger
Curved panels are maximum 32" long. The vertical edges are bent twice into an "L", creating stable units that could stand more solidly
with strenth along the edges. They are attached along the curve with L-shaped elements to the concrete wall with stainless fasteners.
DocuSign Envelope ID: 91 E18C8B-6332-4E18-B969-926165A93030
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Concrete seat wall (i' wide x 18" tall)
Cylindrical columns have uplights inside
DocuSign Envelope ID: 91 E18C8B-6332-4E18-B969-926165A93030
Tall cylinders (8' +/-) have uplights in the bottom.
Colored LEDs are proposed
over Flower" Ligh
is
DocuSign Envelope ID: 91E18C8B-6332-4E18-6969-926165A93030
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View from above of a portion of the artwork
DocuSign Envelope ID: 91E18C8B-6332-4E18-B969-926165A93030
DocuSign Envelope ID: 91E18C8B-6332-4E18-6969-926165A93030
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DocuSign Envelope ID: 91E18C8B-6332-4E18-6969-926165A93030
Some possible images for perforation. The curved lines that are planned for interpretation of
the images are dynamic and in combination with the curved forms and potential layering will
create interesting effects as one moves along the wall.
DocuSign Envelope ID: 91E18C8B-6332-4E18-B969-926165A93030
Lighting elements:
2 Types of lighting elements
Cylndrical structure made
of perforated panels
is uplit by an LED bulb at the base.
Light will be seen through the per-
forations as well as "leaks" of light
toward the panels next to them.
Approximately 10-13 are included at
this point.
"Clover Flower" Light Concept
Creates a sculptural counterpoint to the
geomety of the panels and cylindrical
lighting elements. Currently 3 are includ-
ed. They are approximately 10-12' off the
ground.
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DocuSign Envelope ID: 91 E18C8B-6332-4E18-B969-926165A93030
ARTIST AGREEMENT EXHIBIT B
BUDGET
[To be amended from time to time, in writing and signed by both parties, to reflect updated,
agreed -upon costs.] Conceptual Budget as of 5/2022
FINAL DESIGN/Const. Docs
Final Design fees $610,000.00 12% $73,200.00
Inc. travel, CAD, engineering
FABRICATION
Materials and Fabrication: Metal
Screenwall, painting, shipping (Zahner)
$350,000.00
Lighting elements (DI), uplights, clover $85,900
INSTALLATION
Labor/ Equipment/ (not determined
WHO)
$43,000.00
OTHER
Taxes, insurance/other costs $3,000.00
Project Management/oversight $610,000.00 4% $24,400.00
Total $579,500.00
Contingency $610,000.00 5% $30,500.00
Total with contingency $610,000.00
17
DocuSign Envelope ID: 91E18C8B-6332-4E18-B969-926165A93030
ARTIST AGREEMENT EXHIBIT C:
PROJECT PHASES AND PAYMENT SCHEDULE.
Project Phase 1— Initial concept selection, negotiation of Purchase Agreement, Execution of
Agreement.
Milestone 1: Completion of Phase 1. 15% of Total Artwork Payment Due: $91,500.00
Project Phase 2 — Design refinement phase. Meet with Client, material research, retain structural
engineers, and begin structural engineering, initial drafting, illustrations, descriptive statements,
clarifications for planning process, administration and project management, finalize paint colors,
finalize design, and any other materials required for Project. Estimated completion date:
August 30, 2022
Milestone 2: Completion of Phase 2. 15% of Total Artwork Payment Due: $91,500.00
Project Phase 3: Project design and engineering drawings approved, determine scope and timetable
for fabrication, specifications and fabrication and installation schedule submission, submission of
certificates of insurance acceptable to Buyer, permits approved. Submission of Phase 3 report and
approved structural engineering drawings. Estimated Completion Date 10/2022
Milestone 3: Completion of Phase 3. 20% of Total Artwork Payment Due: $122,000.00
Project Phase 4: Fabrication start date to 50% completion: Start 1/2023 Estimated 50%
completion date: 4/30/2023
Milestone 4: Completion of Phase 4. 20% of Total Artwork Payment Due: $122,000.00
Project Phase 5: Fabrication complete in shop, ready to ship. Estimated completion date:.
7/15//2023
Milestone 5: Completion of Phase 5. 20% of Total Artwork Payment Due: $122,000.00
Project Phase 6: Transport and Installation. Inspection, delivery of documentation, transfer of title.
Installation Start Target Date: 8/15/2023 Installation Finish Target: 8/28/2023 or prior to planting
at site
Estimated Final Completion date :11/15/2023
Milestone 6: Completion of Phase 6. 10% of Total Artwork Payment Due: $61,000.00
Total Artwork Payment: $610,000.
18
DocuSign Envelope ID: 91E18C8B-6332-4E18-B969-926165A93030
ARTIST AGREEMENT EXHIBIT D
INSURANCE
Artist shall obtain and maintain, at its expense, with a carrier authorized to do business in California and
having a Best's rating of at least A-VIII, the following insurance coverage:
1. Workers' Compensation as required by law and Employer's Liability. The Employer's
Liability minimum limits shall be: (i) bodily injury by accident: $1,000,000 each accident; (ii)
bodily injury by disease: $1,000,000 policy limit; and (iii) bodily injury by disease: $1,000,000
each employee.
(a) No Workers' Compensation insurance shall be required if Artist completes the
following certification:
"I certify that my business has no employees, and that I do not employ anyone. I am
exempt from the legal requirements to provide Workers' Compensation insurance."
NS (Artist initials)
2. Commercial General Liability Insurance in the amount of $1 million each occurrence, $2
million aggregate, for bodily injury and/or property damage liability and include:
3. If necessary, Artist will require their subcontractors or subconsultants to obtain
Professional Liability (Errors and Omissions) insurance, including coverage for contractual liability, in
the amount of $1,000,000 per claim and annual aggregate. Artist hereby assigns to Client all rights and
claims that Artist may have against its subcontractors by reason of their malpractice, misfeasance,
negligence, or other professional liability. Artist will not be required to carry Professional Liability
insurance.
4. The General Liability policy shall provide that such insurance is primary insurance with
respect to Client and that any other insurance maintained by Client is excess and non-contributing with
the insurance required under this Exhibit D. All insurance other than Workers' Compensation/
Employer's Liability and Professional Liability (Errors & Omissions) policies shall name the entities
listed on the Indemnitees and any other party specified by at any time and from time to time as additional
insureds (collectively, the "Additional Insureds"). The Commercial General Liability insurance shall
provide coverage for the Additional Insureds at least as broad as that provided for the first named insured.
The additional insured coverage shall be in the form of: 1) an individual endorsement naming the
Additional Insureds or 2) a blanket endorsement or policy provision stating that any entity required by a
written contract or written agreement with the named insured is included as an additional insured. The
limits of insurance provided to the Additional Insureds shall be the greater of that set forth in these
General Terms or the full per occurrence limit set forth in the policy(ies).
5. All liability and Workers' Compensation insurance policies shall provide that the
insurance company waives all rights of recovery by way of subrogation against the Indemnitees and all
liability insurance shall be provided on an "occurrence" basis; so long as coverage remains in force for at
least three (3) years after Substantial Completion of the project to which this Agreement relates.
6. Copies of policies or a certificate and endorsements providing coverage required under this
Exhibit D must be delivered to Client prior to commencement of performance under this Agreement. The
19
DocuSign Envelope ID: 91E18C8B-6332-4E18-B969-926165A93030
requirements for the foregoing insurance shall not derogate from Artist's obligations to indemnify Client
under this Agreement. Unless agreed to in advance by Client, Artist shall require its subcontractors to
provide insurance with the same coverage and limits as Artist would be required to carry under the
Agreement, endorsed to name the Additional Insureds as additional insureds. If Artist fails to provide
evidence of insurance as required above, then Client shall have the right to withhold payments to Artist
until satisfactory evidence of insurance is provided to Client.
20
DocuSign Envelope ID: 91E18C8B-6332-4E18-B969-926165A93030
EXHIBIT B
Artwork Location Map
ST.PAIRICKWAY OTEWED]
•
I
1-
DocuSign Envelope ID: 91E18C8B-6332-4E18-B969-926165A93030
EXHIBIT C
Bond Estimates
Labor and Materials: $691,008
Faithful Performance• $691,008
5353942.1