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HomeMy WebLinkAboutItem 5.2 Francis Ranch Development Public Art Agreement STAFF REPORT CITY COUNCIL Page 1 of 3 Agenda Item 5.2 DATE: October 21, 2025 TO: Honorable Mayor and City Councilmembers FROM: Colleen Tribby, City Manager SUBJECT: Francis Ranch Development Public Art Agreement Prepared by: Shaun Chilkotowsky, Parks & Community Services Manager EXECUTIVE SUMMARY: The City Council will consider approving an agreement with Trumark Homes governing the acquisition and installation of the public artwork to be installed as part of the Francis Ranch Development. STAFF RECOMMENDATION: Adopt the Resolution Approving an Agreement for the Acquisition and Installation of Public Art by Developer for the Francis Ranch Development. FINANCIAL IMPACT: There is no impact on City funds as this is developer-installed artwork. Trumark Homes' public art obligation for this project is estimated at $1,534,580. DESCRIPTION: Background Chapter 8.58 of the Dublin Municipal Code (Public Art Program Contribution) establishes requirements and procedures for developer contributions to public art in the City. Generally, all new non-residential development, and new residential development in excess of 20 residential units, is subject to a public art contribution. The developer can make the contribution in the form of either: 1) a public art project acquired and installed on site, valued at 0.5 percent of the development project’s building valuation, exclusive of land; or 2) a monetary contribution to the City’s Public Art Fund, valued at a certain percent of the development’s building valuation, exclusive of land, as follows: a. 0.5 percent for residential developments in excess of 20 units, or for non - residential buildings more than 50,000 square feet. b. 0.45 percent for non-residential buildings less than 50,000 square feet. 19 Page 2 of 3 Francis Ranch Public Art The Francis Ranch development is located on a 165.5-acre site and will include 573 residential units. More specifically, the project will include six neighborhoods, two neighborhood parks totaling 11 acres, and a two-acre public/semi-public site for affordable housing. The project site, owned by Arroyo CAP IV-3 (Arroyo) and TH East Ranch Dublin LLC (Trumark Homes), straddles existing Croak Road with Jordan Ranch to the west, Positano to the north, and undeveloped land to the east and south. Trumark Homes, as Developer, has elected to install public art on site. Artwork Design and Location The series of 18 artworks, designed by local artist Eric Powell, will be located in two public parks being constructed as part of the development project. The park s comprise 11 acres and include a mix of passive and active use amenities. The artworks include artistic arches or gateways into the parks and playgrounds, large scale steel sculptures, artistic light poles, and wood benches. The detailed proposal is included with this Staff Report as part of Attachment 2. The City will own the land where the future artworks will be located, and upon successful installation and project acceptance, Trumark Homes will transfer ownership of the artworks to the City as well. As the owner of the artworks, the City will take on maintenance responsibilities, and Trumark Homes will provide a one-time payment of $50,000 to the City to cover future maintenance costs. Artwork Review Process On August 18, 2024, Trumark Homes and artist Eric Powell attended the Farmers Market at Emerald Glen Park to present the artwork proposal to the community and solicit feedback. Overall, the community was supportive of the project and highlighted the artworks’ deep connection to the surrounding landscape. At its meeting on November 18, 2024, the Parks and Community Services Commission reviewed the art and expressed support for the proposal, particularly for how the artist was able to utilize art to connect the site’s agricultural past with its vibrant, active future. At its December 12, 2024 meeting, the Heritage and Cultural Arts Commission reviewed the proposal and voted unanimously to recommend the artwork to the City Council for final approval. On January 14, 2025, the City Council approved the artwork proposal. Public Art Agreement The Dublin Municipal Code requires that, for on-site public art, developers must execute an agreement with the City which sets forth the ownership, maintenance responsibilities, and insurance coverage for the project. The proposed Agreement for the Acquisi tion and Installation of Public Art (Attachment 2) meets this obligation for the Francis Ranch art project. Trumark’s agreement with the artist (Exhibit A of Attachment 2), which was executed in June 2023, anticipated completion of the artwork by December 2024. Due to changes in the timeline for the overall Francis Ranch development, the initial agreement timeline between the artist and Developer is no longer relevant, and the City desires to have the Public Art timeline 20 Page 3 of 3 coincide with the overall development and park construction. The proposed Agreement provides that, should the artwork not be done before occupancy, the Developer will be required to obtain a faithful performance bond and a labor and materials bond to ensure it is completed as proposed. STRATEGIC PLAN INITIATIVE: None. NOTICING REQUIREMENTS/PUBLIC OUTREACH: The City Council Agenda was posted, and a copy of the Staff Report was provided to the developer. ATTACHMENTS: 1) Resolution Approving an Agreement for the Acquisition and Installation of Public Art by Developer for the Francis Ranch Development 2) Exhibit A to the Resolution – Agreement for the Acquisition and Installation of Public Art by Developer for the Francis Ranch Development 21 Attachment 1 Reso. No. XX-25, Item X.X, Adopted 10/21/2025 Page 1 of 1 RESOLUTION NO. XX – 25 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING AN AGREEMENT FOR THE ACQUISTION AND INSTALLATION OF PUBLIC ART BY DEVELOPER FOR THE FRANCIS RANCH DEVELOPMENT WHEREAS, The Francis Ranch Development, owned by TH East Ranch Dublin LLC (Trumark Homes) (“Developer”) and Arroyo CAP IV-3 (Arroyo), is located on a 165-acre site that includes the construction of 573 residential units; 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 14, 2024, City Council approved Developer’s proposed public artwork by artist Eric Powell; and WHEREAS, Developer has entered into a contract with artist Eric Powell 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 which formalizes public art obligations. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the Public Art Agreement for the Francis Ranch Development, 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. PASSED, APPROVED AND ADOPTED this 21st day of October 2025, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ______________________________ Mayor ATTEST: _________________________________ City Clerk 22 1 Agreement for the Acquisition and Installation of Public Art by Developer AGREEMENT FOR THE ACQUISITION AND INSTALLATION OF PUBLIC ART BY DEVELOPER FOR THE FRANCIS RANCH DEVELOPMENT This AGREEMENT FOR THE ACQUISITION AND INSTALLATION OF PUBLIC ART BY DEVELOPER (“Agreement”) is dated as of October 21, 2025 (“Effective Date”), and is entered into between the CITY OF DUBLIN, a California municipal corporation (“City”), TH EAST RANCH DUBLIN LLC, a California limited liability company (“Developer”), and ARROYO CAP IV-3, LLC, a Delaware limited liability company (“Owner”). City, Developer, and Owner may be referred to individually as a “Party” or collectively as the “Parties.” City, Developer, and Owner enter into this Agreement with reference to the following recitals of fact (each, a “Recital”): RECITALS A. Owner is the owner of property in the City of Dublin (“City”) commonly known as 4038 Croak Road (APNs 905-2-8 through 10, 15 through 18, 21, 23; 905-22-1 through 77, inclusive; 905-22-101 through 905-22-103, inclusive; 905-22-110; 905-23-92; 905-24-01 through 70, 905- 24-75 through 94, inclusive; 905-24-99 through 905-24-122, inclusive) (“Owner’s Property”) and Developer is the owner of property in the City (APNs 905-22-23 through 43, inclusive; 905- 23-8; 905-23-9; 905-23-23; 905-23-24; 905-23-68; 905-23-69; 905-24-71 through 74, inclusive; 905-24-95 through 98, inclusive) (“Developer’s Property”, and together with Owner’s Property, the “Property”). B. Owner and Developer entered into (i) an Option Agreement dated September 28, 2023, wherein Owner granted an option to Developer to purchase and acquire the Owner’s Property in successive takedown closings on a lot-by-lot basis for the construction of a residential development project, and (ii) a Construction Agreement dated September 28, 2023, with Trumark Construction Services, Inc., an affiliate of Developer, wherein Trumark Construction Services, Inc., agree to, among other things, develop and install on-site and off-site grading, backbone and infrastructure and other improvements in connection with development of the Property (the “Project”). C. City will become the owner of two neighborhood parks totaling 11.0 acres within the Project (the “City Parks”) following their dedication by Developer and subsequent acceptance by the City. Developer will cause the installation of a public art project on the City Parks, which will be solely owned and maintained by the City in accordance with the provisions outlined in the Agreement. D. On December 7, 2023, the City Council adopted Resolution No. 140-21 finding the Project exempt from CEQA and approved Vesting Tract Map No. 8563 (the “Map”). On March 14, 2023, the Planning Commission adopted Resolution No. 23-02 and approved the Site Development Review Permit (PLPA-2022000018). Map condition of approval number 16 (the “Condition”) requires Developer to acquire and install a public art project in accordance with Chapter 8.58 of the City Municipal Code valued at a minimum of One Million Five Hundred Thirty Four Thousand, five hundred eighty, and 35/100 Dollars ($1,534,580.35), to comply with the Project’s public art compliance report submitted by the Developer and on file with the City, and to, prior to issuance of a Certificate of Occupancy for the 286th residential unit on the Property (a) secure completion of the public art project in a manner deemed satisfactory to the City and (b) execute an Attachment 2 Exhibit A to the Resolution 23 2 Agreement for the Acquisition and Installation of Public Art by Developer agreement between the City and Developer that sets forth the ownership and insurance coverage for the public art project. E. Developer entered into a Public Art Agreement with Eric Powell, a sole proprietor (“Artist”), on or around June 7, 2023 (“Artist Agreement”). Under the Artist Agreement, the Artist agreed to design, fabricate and install public art on the City Parks. The Artist Agreement contains warranties, standards and releases. A copy of the Artist Agreement is attached hereto and incorporated herein by reference as Exhibit A. F. On December 12, 2024, 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 10 “Cloud Lanterns”, 2 Illuminated Sculptures, 2 Bird Arches and 4 benches from Heritage Trees, as approved by the City Council and Heritage Commission. The Public Art design concepts and general installation locations are set forth in Exhibit B, which is attached hereto and incorporated herein by reference, as modified to conform to the improvement plans for the City Parks approved by City and to adjust for field conditions encountered when installing the Public Art. G. The Parties desire to enter into this Agreement to memorialize the City’s approval of the Public Art. Further, compliance with this Agreement is intended to fully satisfy the Condition and Developer’s obligation to enter into an agreement setting forth ownership, maintenance responsibilities, and insurance coverage for the Public Art. NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION AND THE PROMISES AND COVENANTS OF CITY, OWNER AND DEVELOPER SET FORTH IN THIS AGREEMENT, CITY, OWNER AND DEVELOPER AGREE, AS FOLLOWS: TERMS AND CONDITIONS 1. PUBLIC ART INSTALLATION, OWNERSHIP, AND MAINTENANCE 1.1 License, Installation, and City Manager Determination. City hereby grants Developer an irrevocable license (the “License”) to enter the City Parks to install the Public Art on the City Parks at the locations set forth in Exhibit B. The License shall terminate upon City’s delivery of the Acceptance Notice (as defined below) to Developer and Artist. 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. Developer represents and warrants to the City that Artist, and where applicable, Artist’s employees, agents, and any subcontractors, have and shall keep in effect at all times during the term of this Agreement, any licenses, permits, and approvals of whatsoever nature that are legally required to practice their respective professions, at no cost to the City. In addition to the foregoing, Developer represents and warrants to the City that Artist and, where applicable, any subcontractors shall obtain and maintain during the term of this Agreement any licenses required by the City in order to be in compliance with all applicable regulatory requirements and any building permit, encroachment permit or other permits necessary for installation, building and/or encroachments. In addition, Developer is responsible for obtaining, prior to installation, 24 3 Agreement for the Acquisition and Installation of Public Art by Developer 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. Developer shall provide City with evidence of such waivers prior to installation. Within five (5) 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 substantial compliance with Exhibit A. If the City Manager determines that the Public Art is not in compliance with the approvals in Exhibit A, the City Manager shall provide written notice to Developer and Owner specifying the corrective work needed for compliance within this five (5) day time period. If City Manager fails to provide written notice of the need for corrective work within such five (5) day time period, the Public Art shall be deemed to be in substantial compliance with Exhibit A. 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 five (5) working 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 provide written notice to the Developer and Owner within the five (5) working day period advising of the need for additional time, such additional time not to exceed ten (10) additional working days, and provide the factual basis to support the need for the additional time. In the event City fails to notify Developer of the need for additional time or to approve of the Public Art, the Public Art shall be deemed to be in substantial compliance with Exhibit A and such deemed substantial compliance shall in no event delay home sales or the issuance of any certificates of occupancies. 1.2 Controlling Agreement. In the event of any inconsistencies between this Agreement and the Artist Agreement, this Agreement shall govern. 1.3 Ownership and Maintenance. Within five (5) business days of City’s approval or deemed approval of the Public Art, as set forth in Section 1.1 above, City shall accept the Public Art from the Artist and evidence the same by written notice to the Artist and Developer (the “Acceptance Notice”). Thereafter, City shall own and maintain the Public Art. Within three (3) business days of City’s delivery of the Acceptance Notice to Developer, Developer shall pay City Fifty Thousand and 00/100 Dollars ($50,000.00) (the “Maintenance Fee”) for maintenance of the Public Art which shall be paid out of the total budget for the Public Art. City shall maintain the Public Art, at its sole cost and expense in the event the cost of maintenance exceeds the Maintenance Fee, in good repair and condition and in accordance with the general maintenance plan prepared by the Artist under the Artist Agreement. City will use reasonable efforts to maintain the Public Art in good repair and condition. 1.4 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. 1.4.1 Faithful Performance. A corporate surety bond issued by a company duly and legally licensed to conduct a general surety business in the State of California in favor of and payable to the City equivalent to one hundred percent (100%) of the estimate set forth in 25 4 Agreement for the Acquisition and Installation of Public Art by Developer Exhibit C and sufficient to assure City that the Public Art will be satisfactorily installed. Any bond shall be subject to approval as to form by the City Attorney, which such approval shall not be unreasonably withheld, delayed, conditioned or denied. 1.4.2 Labor and Materials. A corporate surety bond issued by a company duly and legally licensed to conduct a general surety business in the State of California 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 shall be subject to approval as to form by the City Attorney, which such approval shall not be unreasonably withheld, delayed, conditioned or denied. 1.4.3 City shall be the sole indemnitee named on any security required by this Agreement. 1.4.4 Within five (5) 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 substantial compliance with this Agreement, and the applicable Artist Agreements, as applicable, which determination shall not be unreasonably withheld, conditioned or delayed. The security set forth in this Section 1.4 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 five (5) 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 five (5) days to inspect the work as provided in this paragraph. 1.5 Modifications; Relocation. Developer intends to display the Public Art as originally created by Artist substantially in the locations set forth on Exhibit B. Notwithstanding the foregoing, Developer may make minor modifications to the Public Art and/or relocate the Public Art with the consent of the Director of Parks and Community Services, which shall not be unreasonably withheld, conditioned or delayed. 1.6 Visual Barriers. Developer agrees that no structures or visual barriers of any kind that impair or impede the public’s ability to view the Public Art shall be constructed or maintained on or adjacent to the Public Art, nor shall Developer do anything that shall prevent, impair, or discourage the public’s ability to view the Public Art. 1.7 Insurance and Indemnification. 1.7.1 Commercial General Liability and Automobile Liability Policies. 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 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. 26 5 Agreement for the Acquisition and Installation of Public Art by Developer 1.7.2 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. An endorsement 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. 1.7.3 Indemnification. To the fullest extent permitted by law, 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 caused by the negligence or willful misconduct of Developer, its agents, contractors, subcontractors, or employees in the performance of this Agreement. The foregoing hold harmless statement of Developer shall apply 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. 1.8 Satisfaction of the Condition. City agrees that compliance with this Agreement shall fully satisfy the Condition. Provided Developer is in substantial compliance with this Agreement, and has otherwise fulfilled any other requirements and conditions specifically outlined in the Site Development Review Permit (PLPA-2022000018), and other related agreements that are part of or related to the Condition, the City may not withhold (a) issuance of Project building permits and/or certificates of occupancy, including but not limited to the first certificate of occupancy for the Project, or (b) acceptance of a completed tract within the Property, based on the Condition. Further, this Agreement shall fully satisfy the Condition as the same is imposed on APN 905-20-1 through 905-20-91; 905-23-1 through 7, inclusive; 905-23-10 through 22, inclusive; 905-23-25 through 905-23-67, inclusive; and 905-23-70 through 905-23- 91, inclusive, owned by Taylor Morrison of California, LLC, a California limited liability company (“Taylor Morrison”), for certain real property located in the City of Dublin, County of Alameda, State of California as more particularly described in that certain Agreement for Purchase of Real Property and Preliminary Escrow Instructions dated November 3, 2023 by and between Taylor Morrison and Developer, as amended. Taylor Morrison shall be a third party beneficiary to the previous sentence with all rights to enforce the same as though it were a party to this Agreement. Furthermore, this Agreement shall satisfy the obligations imposed on any subsequent owner of any portion of the Project to satisfy the Condition for such subsequent 27 6 Agreement for the Acquisition and Installation of Public Art by Developer owner’s development of the portion of the Project acquired by such subsequent owner, and such subsequent owner shall be a third party beneficiary to this sentence with all rights to enforce the same as though it were a party to this Agreement. 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: Name:TH East Ranch LLC Address: 3001 Bishop Dr., Suite 100 City, State ZIP:San Ramon, CA 94583 Attn:Tony Bosowski Telephone:(925) 999-3972 Email:tbosowski@trumarkco.com With a copy to: (Developers’ attorney) Name:Jackson Tidus Address:2030 Main Street, Suite 1500 City, State ZIP:Irvine, CA 92614 Attn:Sonia Lister Telephone:(949) 851-7408 Email:slister@jacksontidus.law 28 7 Agreement for the Acquisition and Installation of Public Art by Developer To Owner: Name: Arroyo Cap IV-3, LLC Address:18575 Jamboree Road, Suite 350 City, State ZIP:Irvine, CA 92612 Attn: Jeffrey Brouelette Telephone: (949) 272-1172 jbrouelette@arroyocapital.com To City: Name: City of Dublin Address:100 Civic Plaza City, State ZIP:Dublin, California 94568 Attn:City Manager Telephone:(925) 833-6650 Email:city.manager@dublin.ca.gov With a copy to: Name:Redwood Public Law Address:409 13th Street, Suite 100 City, State ZIP:Oakland, California 94612 Attn:John D. Bakker, Esq. Telephone:(510) 721-3210 Email:john.bakker@redwoodpubliclaw.com 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 29 8 Agreement for the Acquisition and Installation of Public Art by Developer 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. 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. 30 9 Agreement for the Acquisition and Installation of Public Art by Developer 2.13 Assignment. Developer and Owner may assign the rights, interests and obligations of Developer and/or Owner arising under this Agreement to a homeowners’ association formed for the Project or to a successor in interest or assignee of Developer or Owner at which point Developer and Owner 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. Owner has the right, but not the obligation, to assume Developer’s obligations by delivering a notice of Owner’s assumption to City (provided that such assumption by Owner shall not release Developer from its obligations hereunder pursuant to the terms of this Section 2.13). 2.14 Successors and Assigns. All references to the Developer in this Agreement shall be deemed to refer to and include TH East Ranch LLC, a California limited liability company, and all successors and assigns to TH East Ranch LLC, a California limited liability company. 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 printed by the recipient and that the printed document may contain different type styles and type sizes, different pagination and different formatting that the original copy of the Assignment in the possession of the Party sending the Assignment. The Parties agree that any such copies of this Assignment shall be accepted by the Parties as true and correct originals of the Assignment so long as the actual text of the Assignment remains the same. This Agreement constitutes the entire understanding and Agreement of the Parties regarding the subject matter of this Agreement. [Signatures on following page] 31 10 Agreement for the Acquisition and Installation of Public Art by Developer IN WITNESS WHEREOF, the Parties have signed this Agreement by and through the signatures of their respective authorized representative(s) as follow: CITY:DEVELOPER: CITY OF DUBLIN, a California municipal corporation TH EAST RANCH DUBLIN LLC, a California limited liability company By:By: Name:Name: Title: Title: ATTEST: By: Name: Title: City Clerk APPROVED AS TO FORM: By: Name: Title: City Attorney [Owner signature page to follow] 32 11 Agreement for the Acquisition and Installation of Public Art by Developer OWNER: ARROYO CAP IV-3, LLC, a Delaware limited liability company By: Arroyo Cap IV-2, LLC, a Delaware limited liability company its sole member By: Arroyo Capital IV, LLC, a Delaware limited liability company its sole member By:____________________________ Name: _________________________ Title: _________________________ 33 Agreement for the Acquisition and Installation of Public Art by Developer EXHIBIT A Artist Agreement 34 35 36 37 38 39 40 Docusign Envelope ID: B3832437-DD29-4140-A918-C508D32F0E76 3.5 Section 4. Section 5. 5.1 5.2 5.3 5.4 Authorization to Perform Services. The Artist is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from Trumark. FACILITIES AND EQUIPMENT. Except as set forth herein, Artist shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the Work required by this Agreement. RESPONSIBILITY OF THE ARTIST 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 Trumark. Failure to conform to this provision may be cause for termination of this Agreement, at the sole option of Trumark. 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. As part of the Work, Artist shall be responsible for designing the artwork, as described in Exhibit A, so that it can be constructed without exceeding the approved overall budget for the artwork of $1,151,250.00, The Artist shall, without additional compensation, correct or revise any errors, omissions, or other deficiencies in his/her Work. The Artist shall complete the design, fabrication and installation of the Work in substantial conformity with the attached Exhibit A, Scope of Work. The risk of loss or damage to the Work shall be borne by the Artist until final acceptance by Trumark. The Artist shall take such measures as are necessary to protect the Work from loss or damage until final acceptance by Trumark, including but not limited to storing the Work pending installation. Furthermore, upon scheduled delivery of the Work, should Artist find an adverse site condition that prevents installation of the Work as scheduled, Artist shall notify Trumark and Trumark shall be responsible for the safe storage of the Work pending installation. Section 6. TIMELY PROVISION OF SERVICES: DAMAGES FOR DELAYED PERFORMANCE: 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. The Work shall be completed according to the schedule set forth in Exhibit B and all Work shall be complete, and ready for Trumark's final acceptance, by December 2024. 6.1 Damages for Delayed Performance. Subject to reasonable proof and documentation confirming the same submitted by Trumark, Artist shall be liable for any actual damages resulting, directly or indirectly, from delays in performance caused by Artist's acts or omissions, including but not limited to Project construction or occupancy delays. Damages may include, but are not limited to the cost to retrofit the Work installation area should Artist not meet installation schedule as specified in Exhibit B. The Artist shall not be liable 5 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 FIRST AMENDMENT TO PUBLIC ART AGREEMENT BETWEEN TH EAST RANCH DUBLIN LLC AND ERIC POWELL This FIRST AMENDMENT TO PUBLIC ART AGREEMENT BETWEEN TH EAST RANCH DUBLIN LLC AND ERIC POWELL (this First Amendment ade to be effective as of June 23, 2025, by and between TH EAST RANCH DUBLIN LLC, a California limited liability company Trumark ERIC POWELL, a sole proprietor Artist A. Trumark and Artist entered into that certain Public Art Agreement between TH East Artist Agreement Artist agreed to perform certain artistic services required by Trumark as more fully described therein. B. Trumark and Artist now desire to amend the Artist Agreement as set forth in this First Amendment. All terms not otherwise defined in this First Amendment shall have the meanings given them in the Artist Agreement. NOW, THEREFORE, incorporating the foregoing recitals, and for other fair and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Trumark and Artist hereby agree as follows: 1. Entity Formation. Trumark is a California limited liability company. Any reference to Trumark as a Delaware limited liability company in the Artist Agreement shall hereby mean California limited liability company. 2. Licenses. Artist shall, and shall cause its employees, agents, and any subcontractors, to keep in effect at all times during the term of the Artist Agreement, any licenses, permits, and approvals of whatsoever nature that are legally required to practice their respective professions, at no cost to the City o City cause any of its subcontractors to obtain and maintain, during the term of the Artist Agreement valid business licenses from City. 3. Release of Liability. Artist hereby waives, releases, acquits, and forever dischargers Trumark and City, its affiliates, subsidiaries, directors, officers and employees, of and from any and all claims, liens, demands, losses, damages, liabilities, fines, penalties, chargers, administrative and judicial proceedings and orders, judgments, all costs and expenses incurred in connection therewith (including, without limitation, reasonable outside and expenses of all experts and consultants), or compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, accrued or not accrued, liquidated or unliquidated, fixed or contingent, which Artist ever had, now has or may have, or which may arise in the future, in each such case in this paragraph above, to the extent arising from (a) under the Visual Artists Rights Act of 1990 or the California Artists Preservation Act have been violated or (b) any claims arising from the Artist Agreement except for the gross negligence or willful misconduct of Trumark. For the avoidance of doubt, Artist retains his moral rights as to any third party who would intentionally damage or destroy the Work. 4. Scope of Work. Exhibit A to the Artist Agreement shall be amended to include the following description of the Work: 66 cloud lanterns, two (2) illuminated sculptures, two (2) bird arches, and four (4) benches from heritage trees approved by 5. Full Force and Effect. Except as modified by this First Amendment, the Artist Agreement shall remain in full force and effect. 6. Counterparts. This First Amendment may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. The parties may also deliver executed copies of this First Amendment to each other by electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. No party may raise the use of any image transmission device or method or the fact that any signature was transmitted as an image as a defense to the enforcement of this First Amendment. (Signatures on next page) 67 IN WITNESS WHEREOF, the parties have executed this First Amendment as of the date set forth above. ARTIST: Eric Powell TRUMARK: TH EAST RANCH DUBLIN LLC, a California limited liability company By: Tony Bosowski, Authorized Agent 68 Agreement for the Acquisition and Installation of Public Art by Developer EXHIBIT B Public Art Proposal and Locations 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 Agreement for the Acquisition and Installation of Public Art by Developer EXHIBIT C Bond Estimates Labor and Materials: $1,534,580.35 Faithful Performance: $1,534,580.35 93