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HomeMy WebLinkAbout7.1 Dan Dykes, CnsltAgmt CITY CLERK File # 600-30 AGENDA STATEMENT CITY COUNCIL MEETING DATE: July 1, 2003 SUBJECT: Consultant Services Agreement - Bus Shelter Fabrication Report by Theresa Yvonne, Heritage & Cultural Arts Supervisor ATTACHMENTS: 1. Agreement RECOMMENDATION: ~.~%~ 1. Approve Agreement ~.J[~.~ ~. Authorize Mayor to Execute Agreement FINANCIAL STATEMENT: The Consultant will be paid a fixed fee not to exceed $75,000.00. Sufficient funds are funded in the Fiscal Year 2003-2004 Budget. DESCRIPTION: One of the City Council's high priority goals is to "Complete Public Art/Bus Shelter Project in downtown Dublin". The project provides for the replacement of three bus shelters over two fiscal years. The bus shelters scheduled for replacement are located in the downtown area along Dublin Boulevard as follows: 1) north side of Dublin Boulevard at Village Parkway and the 1- 680 underpass; 2) north side of Dublin Boulevard at Golden Gate Drive; and 3) south side of Dublin Boulevard at Golden Gate Drive. The Livermore Amador Valley Transit Authority will contribute $6,000 towards the cost of replacing each bus shelter. The Selection Committee and the Heritage and Cultural Arts Commission both recommended the design of artist Dan Dykes. The recommendation was based upon the unique conceptual design for the shelter and Mr. Dykes extensive experience and expertise in metal sculpting. On November 5, 2002, the City Council approved Mr. Dykes' conceptual design of the Bus Shelters. The technical.plans and specifications have been prepared for fabrication of a full-scale structure. The documents will be used to bid, fabricate and install the three shelters and any future shelters funded for replacement. Staff has negotiated an agreement with Mr. Dykes to fabricate the first three shelters. Attachment 1 is the Agreement that has been prepared by the City Attorney and approved by the artist for the Bus Shelter project. Exhibit A of the Agreement contains a detailed scope of work for the project. Exhibit B of the Agreement outlines the payment schedule and fee for services. Under this agreement Mr. Dykes would be paid a flat fee not to exceed $75,000. Upon approval of the fabrication agreement, Staff anticipates the three new shelters would be installed by the end of the year. It will take approximately four months to fabricate the shelters and the installation of each shelter will be performed concurrently within approximately one week. RECOMMENDATION: It is the recommendation of Staff that the City Council approve the Agreement with artist Dan Dykes and authorize the Mayor to execute the Agreement. COPIES TO: Heritage and Cultural Arts Commission Dan Dykes, artist ,lll~lr ~ ITEM NO. G:\COUNCIL~Agenda StatementsX2003\7-1-03 bus shelter fabrication.doc AGREEMENT BETWEEN THE CITY OF DUBLIN AND DAN DYKES RELATING TO THE PROVISION OF ARTISTIC FABRICATION SERVICES FOR A PUBLIC ART PROJECT This Agreement is made by and between the City of Dublin, a political subdivision of the State of California (hereafter "City"), and Dan Dykes (hereafter "Artist") this 1st day of July, 2003. RECITALS WHEREAS, the City requires the services of Artist to perform artistic services described in the Agreement for a public art project; and WHEREAS, the City is authorized by Section 2.36.050 of the Dublin Municipal Code to contract for the specialized services of the advisor contemplated by this Agreement; and WHEREAS, Artist is qualified and desires to perform the artistic services required by the City as set forth in this Agreement; and WHEREAS, the City Council, on November 5, 2002, approved the artwork by Artist for the bus shelter design; and WHEREAS, the City and Artist are parties to a certain agreement entitled, Agreement Between the City of Dublin and Dan Dykes Relating to the Provision of Artistic Services for a Public Art Project, and dated for reference February 4, 2003 ("the Design Agreement"). The Design Agreement envisioned Artist preparing design specifications for fabrication of Public Bus Shelters to be installed in the City. WHEREAS, Artist has prepared and the City has approved engineering drawings and design specifications for the Public Art. WHEREAS, the City now desires to engage the Artist to fabricate and install three prototype Public Bus Shelters at the following locations: (a) the northside of Dublin Boulevard at Village Park and the 1-680 underpass; (b) the northside of Dublin Boulevard at Golden Gate Drive; and (c) the southside of Dublin Boulevard at Golden Gate Drive (collectively "the Artwork"). NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree as follows: AGREEMENT ARTICLE 1. SCOPE OF WORK Agreement for Fabrication Services Page I of 13 July 1,2003 ATTACHMENT 1 <¢¢ '%'~ ~"~ ' 1.1. For services rendered herein, City shall pay Artist a sum not to exceed $75,000.00 for the fabrication and installation of the three Public Bus Shelters. Artist shall furnish services as described in Exhibit A of this Agreement. Terms and conditions for payment are attached in Exhibit B of this Agreement. 1.2. The Artist shall begin work after the execution of this Agreement and complete work four months from the date of this agreement. ARTICLE 2. CHANGES IN SCOPE AND ADDITIONAL WORK 2.1. The Artist shall be obligated to perform the services called for in Exhibit A. The Artist and the City agree that the Artist shall retain artistic control of his/her services in the performance of the services under this Agreement, subject only to the limitations imposed in Exhibit A. 2.2. Notwithstanding the provisions of Section 2.1 above, the City may, at any time, request the Artist in writing to revise portions of the services that he/she has previously completed in a satisfactory manner; delete portions of the Scope of the Work that the Artist has not yet performed; perform additional work beyond the Scope of Work to be provided in Exhibit A; or make other changes within the General Scope of the Work to be performed under this Agreement. In the event of such a written request, the Artist may, but shall not be obligated to agree to any such request. 2.3. In the event the request for change is agreed to by the Artist, this Agreement shall be amended, in writing, specifying the agreed changes, including, but not limited to, a description of services, additional budget, payment schedule, and timetable. 2.4. In the event that the Artist does not agree to the request, the City shall be entitled to terminate the Agreement for cause pursuant to Article 17 herein. 2.5. No services for which additiona~ compensation will be charged shall be provided by the Artist without the prior written authorization by the City. ARTICLE 3. RESPONSIBILITY OF THE ARTIST 3.1. The Artist agrees that an essential element of this Agreement is the skill and creativity of the Artist. The Artist shall not assign the creative or artistic portions of the Artwork to another party for the production of the Artwork without the written consent of the City. Failure to conform to this provision may be cause for termination of this Agreement, at the sole option of the City. 3.2. The Artist shall be responsible for providing services described in Exhibit A, including but not limited to, the quality and timely completion of the services. As part Agreement for Fabrication Services Page 2 of 13 July 1, 2003 of the Artwork, Artist shall be responsible for designing bus shelters, as described in Exhibit A, so that they can be fabricated without exceeding the approved overall budget for the project, or $25,000 per shelter. The Artist shall, without additional compensation, correct or revise any errors, omissions, or other deficiencies in his/her Work. 3.3. In the event the services of the Artist are integrated into, combined, or otherwise coordinated with services by third parties not within the control of the Artist, the Artist shall not be responsible for such third party services. If any part of the Artist's Work depends for proper execution or results upon the work of the City, or a third party responsible to the City, the Artist shall, prior to proceeding with his or her Work, promptly report to the City any apparent discrepancies or other defects in such other work which renders it unsuitable for proper execution and results by the Artist. The Artist shall not be responsible for any liability or failure to fulfill his/her obligations because of such discrepancies or defects. Failure of the Artist to report a discrepancy or defect shall constitute an acceptance of the City's or third party's work as fit and proper to receive Artist's Work. Any costs caused by defective or ill-timed work shall be borne by the party responsible therefore. Nothing in this section shall limit the responsibility of the Artist to take all reasonable steps to coordinate his/her Work with the work of the City or of a third party on the project. 3.4. If the Artist is involved in the execution, fabrication, transportation, inspection, and/or installation of the Artwork, the following provisions shall apply: a. The Artist shall, if and when working on City property, supervise such clean-up as may be reasonably requested by the City. At the close out of the Artist's Work, the Artist shall remove his/her equipment, excess materials, etc., promptly and as requested by City. b. The City and any third party contractor on the project shall notify the Artist of their operation, construction, and maintenance schedules in and around the area where the Artist's Work is to be performed. The Artist shall perform his/her services in a manner and time so as not to cause interference with any of the operations, construction, or maintenance of the City or third party contractor. In the event of a conflict between the schedules of the contractor and/or the City and the Artist, the conflict will be resolved by the City. If the resolution of the conflict results in a delay of the performance of the Artist, the Artist shall have the right to renegotiate this Agreement to compensate him or her for any additional costs or expenses caused by the delay. If such delay prevents Artist from complying with the schedule in Exhibit A, Artist shall not be considered to have breached this Agreement, and Artist and City shall agree to amend the schedule in writing. c. The Artist shall complete the fabrication and installation of the Artwork in substantial conformity with the attached Exhibit A, Scope of Work. Agreement for Fabrication Services Page 3 of 13 July 1, 2003 3.5. The risk of loss or damage to the Artwork shall be borne by the Artist until final acceptance by City, and the Artist shall take such measures as are necessary to protect the Artwork from loss or damage until final acceptance by City, except that the risk of loss or damage shall be borne by the City prior to final acceptance during such period of time as the partially or wholly completed Work is in the custody, control, or supervision of the City or its agents for the purposes of transporting, storing, installing, or performing any other ancillary services to the Artwork. ARTICLE 4. WARRANTIES/STANDARDS 4.1. The Artist warrants that: (a) the design of Work being commissioned is the original product of his/her own creative efforts; (b) unless otherwise stipulated, the Artwork is original, that it is an edition of one (1), and that the Artist shall not sell or reproduce the Artwork, or allow others to do so, without the prior written consent of the City. 4.2. The Artist shall guarantee his/her Work to be free from faults of workmanship for a period of one (1) year after final acceptance by the City. The Artist shall deliver the Artwork to the City free and clear of any liens from any source whatever. The foregoing guarantees shall apply only to the Artwork that is entirely that of the Artist or persons responsible to the Artist, as installed, and shall not apply to materials or workmanship of projects in which the Artwork of the Artist is integrated or combined, or to materials purchased, acquired, or installed by a person or entity not responsible to the Artist. 4.3. The Artist shall faithfully perform the work required under this Agreement in accordance with standards of care, skill, training, diligence, and judgment provided by highly competent professionals who perform work of a similar nature to the Artwork described in this Agreement. Artist shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the removal of any such persons, Artist shall, immediately upon receiving notice from City of such desire of City, cause the removal of such person or persons, unless in the Artist's sole opinion, the skill or creativity of such person or persons is essential to the creation of the Artwork. ARTICLE 5. COMPENSATION 5.1. The Artist shall be paid for services satisfactorily rendered pursuant to this Agreement in accordance with the terms herein, Exhibits A and _B_B, and subsequent adjustments, changes, or additions as specifically provided for in this Agreement. Such payment shall be full compensation for work performed and services rendered, for all supervision, labor, supplies, materials, equipment, or use thereof, for taxes, and for all other necessary incidentals including transportation and storage of Work. 5.2. The conditions and terms of payment amount and schedule of payments to the Artist are contained in the attached Exhibit B, Payments under this Agreement Agreement for Fabrication Services Page 4 of 13 July 1, 2003 shall not exceed a maximum amount of $75,000.00, subject only to adjustments, changes, or additions as specifically provided for in this Agreement (hereafter "Total Price"). 5.3. In the event the Artist incurs costs in excess of the Total Price, the Artist shall pay such excess from his/her own funds, the City shall not be required to pay any part of such excess, and the Artist shall have no claim against the City on account thereof. 5.4. The Artist shall submit invoices to the City according to the schedule provided for in Exhibit B. Such invoices shall be in the form requested by the City. 5.5. In the event that the City determines that Work for which it has been invoiced does not meet the contract specifications, and that it intends to withhold payment, the City shall provide detailed written notice to the Artist within fifteen (15) days of receipt of invoice, specifying the failure of performance for which the City intends to withhold payment. The Artist shall thereafter meet contract standards to the satisfaction of the City or advise the City that he/she disputes the City's determination that the specifications have not been met. 5.6. The City shall pay all invoices that meet contract specifications within thirty (30) days of receipt of invoice. 5.7. No payment to the Artist for any work performed or services rendered shall constitute a waiver or release by the City of any claims, rights or remedies it may have against the Artist under this Agreement or by law, nor shall such payment constitute a waiver, remission, or discharge by the City of any failure or fault of the Artist to satisfactorily perform the work as required under this Agreement. 5.8. The services to be required of the Artist under this Agreement shall be completed in accordance with the schedule for completion of the Artwork, as provided for in Exhibit A, provided that such time limits may be extended or otherwise modified by written agreement between the Artist and the City. 5.9. If, when the Artist completes fabrication or procurement of the Artwork in accordance with the approved schedule and notifies the City that the Artwork is ready for installation, the Artist is delayed from installing the Artwork within the time specified in Exhibit A as a result of the construction of the site for the Artwork not being sufficiently complete reasonably to permit installation of the Artwork therein, or if the City otherwise does not make the site available to the Artist in accordance with the approved schedule, the City shall promptly reimburse the Artist for reasonable transportation and storage costs incurred for the period between the time provided in Exhibit A for commencement of installation and the date upon which the site is made available to the Artist for installation of the Artwork. Agreement for Fabrication Services Page 5 of 13 July 1,2003 5.10. The Artist shall bear any transportation and storage costs resulting from the completion of the Artwork prior to the time provided in the schedule for installation of the Artwork. 5.11. The City shall always grant a reasonable extension of time to the Artist in the event that there is a delay on the part of the City in performing its obligations under this Agreement or in completing the underlying capital project, or if conditions beyond the Artist's control render timely performance of the Artist's service impossible or unexpectedly burdensome. Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control will not be considered a breach of this Agreement, as long as such obligations shall be suspended only for the duration of the conditions causing the delay. 5.12. For delays in the delivery of the Artwork beyond the schedule provided for under this Agreement caused by factors reasonably under the Artist's control, the City agrees to accept fifty dollars ($50.00) per day as liquidated damages for such delay. ARTICLE 6. ARTIST'S RIGHTS 6.1. The City shall, at its expense, prepare and install at appropriate locations, after consultation with the Artist, a plaque or sign identifying the Artist, the title of the Artwork, and the year of completion. The City shall also reasonably maintain such notice in good repair against damages due to normal wear and tear over time, vandalism, and the elements. 6.2. The City recognizes that maintenance of the Artwork on a regular basis is essential to the integrity of the Artwork. The City shall reasonably assure that the Artwork is properly maintained and protected, taking' into account the recommendations of the Artist as stated in the maintenance program provided by the Artist. 6.3. The City agrees that it shall not intentionally damage, alter, modify, change, or substantially relocate the Artwork of the Artist without first conferring with the Artist and obtaining the prior written approval of the Artist to the proposed modification, change, or substantial relocation. 6.4. Notwithstanding the Artist's refusal to provide (or the City's failure for any reason otherwise to obtain) the Artist's written approval provided for in Section 6.3 above, the City, in its sole discretion, shall have the right to remove any work of art providing the following terms and conditions are met: a. The removal proposal shall first be submitted to and considered by the City Council. b. The City Council shall have the non-delegable duty to decide that a work of art shall be removed. The decision to remove shall not be made by the City Council until it has reviewed the removal proposal. Agreement for Fabrication Services Page 6 of 13 July 1, 2003 c. In the event that the City Council decides to remove the Artwork, the Artist shall have the first right of refusal to purchase his/her Work, if it stands alone and is not integrated into a larger artwork, building, or structure and can be removed without expense to the City. The Artist shall also have the right to have his/her name removed from the Artwork,' as well as from the plaque installed pursuant to Section 6.1. 6.5. All repairs and restorations, whether performed by the Artist, the City, or third parties responsible to the Artist or the City, shall be made in accordance with professionally recognized principles of conservation of artworks. ARTICLE 7. COPYRIGHTS 7.1. The Artist shall retain all copyright and other rights in and to the Artwork created under this Agreement, other than ownership of the Artwork itself. Artist shall grant to the City an irrevocable license to graphically depict the artwork in any non- commercial manner whatsoever. For the purpose of this limitation, the graphic depiction of the artwork(s) on materials designed to promote the City shall be deemed to be a non-commercial use. 7.2. If for any reason the proposed design is not implemented, all rights to the proposed artwork shall be retained by the Artist. 7.3. The Artist agrees that all work performed under this Agreement shall comply with all applicable patent, trademark, and copyright laws, rules, regulations, and codes of the United States. The Artist further agrees that the Artwork will not utilize any protected patent, trademark, or copyright in performance of work under this Agreement, unless the Artist has obtained proper permission and all releases and other necessary documents and provided copies of such releases and documents to City. If the Artist specifies any material, equipment, process, or procedure that is protected, the Artist shall disclose such patents, trademarks, and copyrights in the construction drawings and technical specifications. 7.4. The Artist agrees to release, indemnify, and hold harmless the City, its officers and employees from any and all claims, damages, suits, costs, expenses, liabilities, actions, or proceeding of any kind resulting from the performance of work under this Agreement that infringes upon any patent, trademark, or copyright protected by law. 7.5. All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: © Dan Dykes, 2003. The Artist shall use his/her best efforts to include a credit reading substantially "An original work commissioned by the City of Dublin, California" in any public showing under the Artist's control of reproductions of the Artwork. Agreement for Fabrication Services Page 7 of 13 July 1, 2003 ARTICLE 8. NO EMPLOYER/EMPLOYEE OR AGENCY RELATIONSHIP 8.1. No relationship of employer and employee is created by this Agreement, it being understood that Artist shall act hereunder as an independent contractor and not as an employee of City. City shall have the right to control Artist's work only insofar as the results of Artist's services rendered pursuant to this Agreement. Artist shall not have any claim under this Agreement or otherwise against'City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, retirement benefits, Social Security, disability, Worker's Compensation or unemployment insurance benefits, civil service protection, or employee benefits of any kind. Artist shall be solely liable for and obligated to pay directly all applicable taxes, including but not limited to Federal and State income taxes. Artist shall indemnify and hold City harmless from any and all liability that City may incur because of Artist's failure to pay such taxes. Notwithstanding the foregoing, if the City determines that pursuant to state and federal law, Artist is an employee for purposes of Federal and State tax withholding, City shall, upon two weeks notice to Artist, withhold from the payments to Artist hereunder federal and state payroll taxes and pay said sums over to the Federal and State governments. Although City shall control only the results of Artist's services under this Agreement, Artist agrees to perform his/her said work and functions at all times in strict accordance with currently approved methods and practices in his/her field; in a competent, efficient, timely, and satisfactory manner; and in accordance with the standards required by the City. 8.2. Nothing contained in this Agreement shall be construed as limiting the right of Artist to engage in his/her profession separate and apart from this Agreement so long as such activities do not interfere with the performance by Artist of his/her obligations as set forth herein and in Exhibit A. 8.3 Except as City may specify in writing, Artist shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Artist shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. ARTICLE 9. CONFORMITY WITH LAW AND SAFETY 9.1. Artist shall observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies, including all provisions of the Occupational Safety and Health Act of 1979 and all amendments thereto, and all applicable federal, state, municipal, and local safety regulations. All services performed by Artist must be in accordance with those laws, ordinances, codes, and regulations. Artist shall indemnify and save City harmless from any and all liability, fines, penalties, and consequences from any noncompliance or violations of such laws, ordinances, codes, and regulations. Agreement for Fabrication Services Page 8 of 13 July 1,2003 9.2. If death, serious personal injury or substantial property damage occurs in connection with the performance of this Agreement, Artist shall immediately notify the City Manager by telephone. Artist shall promptly submit to City a written report, in such form as may be required by City, of all accidents that occur in connection with this Agreement. The report must include the following information: (1) name and address of the injured or deceased person(s); (2) name and address of Artist's subcontractor, if any; (3) name and address of Artist's liability insurance carrier; and (4) a detailed description of the accident and whether any of City's equipment, tools, material, or staff were involved. ARTICLE 10. CONFLICT OF INTEREST No officer, member, or employee of City and no member of its governing bodies shall have any pecuniary interest, direct or indirect, in this Agreement or the proceeds thereof. Neither Artist nor any member of Artist's family shall serve on a City board or committee or hold any position that, either by rule, practice, or action, nominates, recommends, or supervises Artist's operations or authorizes funding to Artist. ARTICLE 11. ASSIGNMENT OF CONTRACT Nothing contained in this Agreement shall be construed to permit assignment or transfer by Artist of any rights under this Agreement and such assignment or transfer is expressly prohibited and void. ARTICLE 12. CONFIDENTIALITY OF INFORMATION Confidential information is defined as all information disclosed to Artist that relates to the City's past, present, and future activities, as well as activities under this contract. Artist will hold all such information in trust and confidence except as otherwise required by law. Upon cancellation or expiration of this Agreement, Artist will return to City all written or descriptive matter that contains any such confidential information. ARTICLE 13. NON-DISCRIMINATION Artist assures that he/she will comply with the Americans with Disabilities Act and with Title VII of the Civil Rights Act of 1964, and that no person shall, on the grounds of race, creed, color, disability, gender, sexual orientation, national origin, age, religion, Vietnam era Veteran's status, political affiliation, or any other non-merit factors be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under this Agreement. ARTICLE 14. USE OF CITY PROPERTY Artist shall not use City premises, property (including equipment, instruments, and supplies), or personnel for any purpose other than in the performance of his/her obligations under this Agreement. Agreement for Fabrication Services Page 9 of 13 July 1, 2003 ARTICLE 15. FEDERAL AND STATE AUDITS Until the expiration of five years after the furnishing of any services pursuant to this Agreement, Artist shall make available, upon written request, to the Federal/State government or any of their duly authorized representatives, this Agreement and such books, documents, and records of Artist that are necessary to certify the nature and extent of the reasonable cost of services to City. If Artist enters into any Agreement with any related organization to provide services pursuant to this Agreement with a value cost of $10,000 or more over a twelve-month period, such Agreement shall contain a clause to the effect that until the expiration of five years after the furnishing of services pursuant to such subcontract, the related organization shall make available, upon written request, to the Federal/State government or any of their duly authorized representatives, the subcontract, and books, documents and records of such organization that are necessary to verify the nature and effect when and if it is not required by law. ARTICLE 16. MODIFICATION No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto. ARTICLE 17. TERMINATION 17.1. Either party may terminate this Agreement with or without cause by providing thirty (30) days notice, in writing to the other party. Upon the expiration date of said notice, this Agreement shall become of no further force or effect whatsoever and each of the parties shall be relieved and discharged herefrom. 17.2. In the event that the Agreement is terminated by the City without cause, the City shall pay the Artist for all work performed and service rendered up to the effective date of the termination. The City shall have no rights to the Artist's creative work, designs, or unfinished artwork(s). 17.3. In the event that the Agreement is terminated by the Artist without cause, the Artist shall promptly reimburse the City for all payments made under this Agreement prior to the termination by the Artist. 17.4. In the event that the City determines that the Artist has substantially failed to fulfill his/her obligations as provided under this Agreement, the City shall provide the Artist with written notice detailing the specific obligations which the City claims the Artist has failed to fulfill and notifying the Artist that he/she is deemed to be in breach of the Agreement. If the breach is not cured or if the City and the Artist cannot agree on a schedule for curing the breach, the Agreement will be deemed terminated on a date specified by the City, which will be no sooner than ten (10) days from the date of issuance of the notice. Agreement for Fabrication Services Page 10 of 13 July 1,2003 17.5. If, because of death, unavailability, or any other occurrence, Artist cannot possibly render services or perform work under this Agreement, the Agreement shall be deemed terminated. ARTICLE 18. HOLD HARMLESS/INDEMNIFICATION 18.1. Artist shall indemnify, defend, and hold harmless City and its officers and employees against liability for injury or damage caused by a negligent act or omission of Artist in the performance of this Agreement and shall hold City harmless from any loss or damages directly or indirectly resulting to the City or its officers and employees on account of the performance or character of the work, unforeseen difficulties, accidents, occurrences, or other causes predicated on active or passive negligence of the Artist or any subcontractor of Artist. Artist shall indemnify, defend, and hold harmless the City, its officers, officials, directors, employees and agents from and against any or all loss, liability, expense, claim, costs (including costs of defense), suits, and damages of every kind, nature and description directly or indirectly arising from the performance of the Artwork. This paragraph shall not be construed to exempt the City, its employees, and officers from its own fraud, willful injury, or violation of law whether willful or negligent. For purposes of Section 2782 of the Civil Code the parties hereto recognize and agree that this agreement is not a construction contract. By execution of this Agreement, Artist acknowledges and agrees that it has read and understands the provisions hereof and that this paragraph is a material element of consideration. 18.2. The City shall indemnify the Artist against liability for injury or damage caused by a negligent act or omission of the City, its officers and employees in their performance of this Agreement and shall hold the Artist harmless from any loss occasioned by such negligent act or omission. 18.3. Upon final acceptance of the Artwork, the City shall, to the extent permitted by law, indemnify, and hold harmless the Artist against any and all claims or liabilities that arise thereafter in connection with the Artwork performed under this Agreement, except claims by the City against Artist and claims that may occur as a result of the Artist's breach of the warranties provided elsewhere in this Agreement. ARTICLE 19. INSURANCE/SELF-INSURANCE Artist shall at all times during the terms of this Agreement with the City maintain in force those insurance policies and bonds as designated In the attached Exhibit C and will comply with all those requirements as stated herein. ARTICLE 20. EMPLOYMENT ELIGIBILITY Persons providing services under this contract will be required to provide the necessary documentation to establish identity and employment eligibility as required by the Immigration Reform and Control Act of 1986. Failure to provide the necessary Agreement for Fabrication Services Page 11 of 13 July 1, 2003 documentation will result in the termination of contract as required by the Immigration Reform and Control Act of 1986. ARTICLE 21. SEVERABILITY In the event any of the provisions, or applications thereof, of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions, or applications thereof, shall not be affected. ARTICLE 22. TIME IS OF THE ESSENCE The parties agree that in the performance of the terms and requirements of this Agreement by the Artist that time is of the essence. Artist shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary for satisfactory performance of Artist's obligations pursuant to this Agreement. ARTICLE 23. LICENSES, PERMITS, ETC. Artist represents and warrants to City that he/she has all licenses, permits, qualifications and approvals of whatsoever nature that are legally required for Artist to practice his/her profession. Artist represents and warrants to City that Artist shall, at his/her sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required for Artist to praCtice his/her profession. ARTICLE 24. GOVERNING LAW This Agreement shall be governed by the laws of the State of California and any suit or action by either party shall be brought in the County of Alameda, California. ARTICLE 25. ATTORNEYS FEES If a party brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party is entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. Such fees may be set by the court in the same action or in a separate action brought for that purpose. ARTICLE 26. NO WAIVER The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. ARTICLE 27. SURVIVAL Agreement for Fabrication Services Page 12 of 13 July 1, 2003 All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Artist survive the termination of this Agreement. ARTICLE 28. EXECUTION IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the day and year first written above. CITY OF DUBLIN ARTIST Mayor Dan Dykes 181 Sylvan Road Attest: Walnut Creek, CA 94596 City Clerk Approved as to form: City Attorney J :\WPD\Mnrsw\114\001\200 lgAgree\artist_l 105.doc Agreement for Fabrication Services Page 13 of 13 July 1,2003 EXHIBIT A SCOPE OF SERVICES Summary of Scope of Artist's Services The intent of this Agreement is to define the work to be done in fabricating, transporting, and installing artwork for the replacement of existing Public Bus Shelters located in the following locations in the City of Dublin: (a) the northside of Dublin Boulevard at Village Parkway and the McDonald's driveway; (b) the northside of Dublin Boulevard at Golden Gate Drive in front of the Burlington Coat Factory parking lot; and (c) the southside of Dublin Boulevard at Golden Gate Drive in front of the Washington Mutual Building. Artist shall complete the fabrication and installation of the Artwork in substantial conformity with the Plans and Specifications, dated February 2003, and attached to the Agreement as Exhibit D. Artwork does not include any foundation preparation or electrical subcontracting. The City will prepare the foundations for artwork per Plans and Specifications ( Exhibit D) given two weeks written notice form the artist. The artwork will be completed and installed at above locations four (4) months from the execution of this agreement. Agreement For Fabrication Services - EXHIBIT B Page 1 of 1 July 1,2003 EXHIBIT B CONDITION & TERMS OF PAYMENT 1. The term of this Agreement is from July 2003 through November 2003. The foregoing notwithstanding, this Agreement may be extended by mutual agreement on a month-by-month basis. 2. The City agrees to pay Artist a fixed fee not to exceed $75,000.00, which shall constitute full compensation for all services to be performed and materials furnished by the Artist under this Agreement. The fee shall be paid in the following installments, each installment to represent full, final and non-refundable payment for all services and materials provided prior to the due date thereof: City will pay Artist upon submission of a written invoice from Artist to City. As early as practical, but not later than thirty (30) calendar days following receipt of said invoice, City shall pay Artist the full face value of the invoice. 1) The first payment, $18,750.00, is payable upon execution of this agreement. 2) The second payment, $ 26,250.00, is payable upon fabrication of all major elements of the project. 3) The third payment, $ 22,500.00, is payable when all elements are ready for installation and site visitation by the City to approve all elements for installation. 4) The fourth and final payment, $ 7,500.00, is payable upon installation and acceptance of artwork from City. 5) The completion date for the artwork is November 14th, 2003. Agreement For Fabrication Services - EXHIBIT B Page 1 of 1 July 1, 2003 EXHIBIT C INSURANCE REQUIREMENTS Artist shall procure end maintain for the duration of the contract "occurrence coverage" insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, employees or subcontractors. The cost of such insurance shall be included in the Artist's bid. a. Minimum Scope of Insurance. Coverage shall be at least as broad as: 1. Insurance Services Office form number GL 0002 (Ed. 1/73) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001 .) 2. ~nsurance Services Office form number CA 0001 (Ed~ 12/90) covering Automobile Liability, code 1 "any auto" and endorsement CA 0025. 3. Workers' Compensation Insurance as required by the Labor Code of the State of California and Employers Liability Insurance. b. Minimum Limits of Insurance. Artist shall maintain limits no less than: 1. General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. 3. Workers' Compensation and Employers Liability: Workers' Compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident. c. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shell reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials and employees; or the Artist shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Agreement For Fabrication Services - EXHIBIT C Page 1 of 3 July 1, 2003 d. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: 1. General Liability and Automobile Liability Coverages. A. The City, its officers, officials, employees and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Artist; products and completed operations of the Artist, premises owned, occupied or used by the Artist, or automobiles owned, leased, hired or borrowed by the Artist. The coverage shall contain no special limitations on the scope of the protection afforded to the City, its officers, officials, employees or volunteers. B. The Artist's insurance coverage shall be primary insurance as respects the city, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees or volunteers shall be excess of the Artist's insurance and shall not contribute with it. C. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. D. The Artist's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its officers, officials, employees and volunteers for losses arising from work performed by the Artist for the City. 3. Professional Liability. Artist shall carry professional liability insurance in an amount deemed by the City to adequately protect the Artist against liability caused by negligent acts, errors or omissions on the part of the Artist in the course of performance of the services specified in this Agreement. 4. All Coverages. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Agreement For Fabrication Services - EXHIBIT 6 Page 2 of 3 July 1, 2003 e. Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than A:VlI. f. Verification of Coverage. Artist shall furnish City with certificates of insurance and with original endorsements effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. g. Subcontractors. Artist shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. h. Waiver. The City may approve a variation in those insurance requirements upon a determination that the coverages, scope, limits and forms of such insurance are either not commercially available or that the City's interests are otherwise fully protected. Agreement For Fabrication Services - EXHIBIT C Page 3 of 3 July 1,2003 Exhibit D Plans and Specifications Please see attached documents Agreement For Fabrication Services - EXHIBIT D Page 1 of 3 July 1, 2003