HomeMy WebLinkAbout4.11 - 3323 Clover Park Public Art Agreement Amendment
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STAFF REPORT
CITY COUNCIL
DATE: August 18, 2020
TO: Honorable Mayor and City Councilmembers
FROM:
Linda Smith, City Manager
SUBJECT:
Clover Park Public Art Agreement Amendment
Prepared by: Shaun Chilkotowsky, Heritage & Cultural Arts Manager
EXECUTIVE SUMMARY:
The City Council will consider amending the agreement with Colin Selig for the Public
Art installation at Clover Park.
STAFF RECOMMENDATION:
Adopt the Resolution Approving Amendment #1 to the Agreement with Colin Selig for a
Public Art Project at Clover Park.
FINANCIAL IMPACT:
There is sufficient funding in the Clover Park Public Art Project (PK0317) budget, as
included in the 2020-2025 Capital Improvement Program, for this amendment.
DESCRIPTION:
Clover Park (2901 Threecastles Way) is a neighborhood park located in the Irongate
development. The park is being built in conjunction with and adjacent to Sunrise Park, a
community nature park. Clover Park is on the lower level, connected to Sunrise Park by
a switchback trail.
The City Council considered artwork, a Colin Selig’s design named Arachnicat, for this
park at its November 5, 2019 meeting, and voted to approve the design and associated
artist agreement. At the meeting, further direction was provided that included makin g
the piece more “seatable” and taking into consideration third party art conservator
recommendations (Attachment 4) that included a higher-quality paint system.
Based on previous input and discussion with the City Council, the initial proposal by
Colin Selig has been modified. The original proposal was a sculpture over nine feet tall;
the height has been reduced to six feet and the piece has been elongated to
approximately 12 feet. The additional length has allowed for the benches to be
expanded, resulting in a safer seating area.
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Another modification discussed at the City Council’s November 5, 2019, meeting was to
use a high-quality liquid coating as the paint system, as opposed to the powder coated
paint in the original design. The recommendation to use a high-quality paint was made
by a third-party art conservator, as powder coating tends to fade or fail quicker than
such liquid coatings. High-quality liquid coatings are more durable, retain color, and are
easier to repair if necessary. Staff and the artist have further researched this approach
and agree with the conservator’s report.
Lastly, a full structural design has been completed by a California Licensed Structural
Engineer that was retained by the artist. The design was submitted to the City’s Building
and Safety Division for full review and approval. This process has been completed and
installation permits have been approved and issued.
Project Budget
The overall budget for the Clover Park Public Art (PK0317) is $39,600. Of this amount,
$32,660 was allocated to the artist, which includes the design fee, structural
engineering, fabrication, painting/finish coat, and installation. The remaining $6,940 is
for soft costs, such as Staff time, permitting, and third-party construction inspections.
The artist allocation and budget for this project incorporated a powder coating paint
system for the finish coat, estimated at $2,500. The high-quality liquid coating is
estimated at $8,500, which is $6,000 higher than the artists original estimate. The artist
has agreed to cover $4,000 of this cost with the City contributing the remaining $2,000 .
Funding for the additional $2,000 City contribution is available in the existing project
budget but requires amending the existing artist agreement not-to-exceed amount from
$32,660 to $34,660 (Attachment 3).
All other modifications to the art project, as directed by the City Council and
recommended by the art conservator have been incorporated into the project without
any budget impacts.
STRATEGIC PLAN INITIATIVE:
None.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS:
1. Resolution Approving Amendment #1 to the Agreement with Colin Selig for a Public
Art Project at Clover Park
2. Exhibit A to the Resolution – Amendment #1 to the Public Art Agreement
3. Original Agreement with Colin Selig for the Clover Park Public Art Without
Attachments
4. Clover Park Art Conservator's Report
RESOLUTION NO. XX - 20
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* * * * * * * * * * *
APPROVING AMENDMENT #1 TO THE AGREEMENT WITH COLIN SELIG FOR A
PUBLIC ART PROJECT AT CLOVER PARK
WHEREAS, the 2020-2025 Capital Improvement Program includes a project to design,
fabricate, and install permanent public art at Clover Park; and
WHEREAS, the public art proposal by Colin Selig was recommended by the Clover
Park Art Selection Committee, Heritage and Cultural Arts Commission, and Parks and
Community Services Commission; and
WHEREAS, the City Council at its November 5, 2019 meeting reviewed the artist
proposal, provided further direction to incorporate changes into the project, and adopted a
resolution authorizing the City Manager to enter into a Public Art Agreement with Colin Selig;
and
WHEREAS, Staff and Colin Selig, based on feedback from the City Council and a
recommendation made by an art conservator, desire to use a higher quality liquid coating on
the art sculpture, instead of the originally proposed power coating; and
WHEREAS, Staff and Colin Selig desire to amend the Public Art Agreement to
increase the compensation not-to-exceed amount by $2,000, from $32,660 to $34,660, due to
the increased costs associated with the higher quality liquid coating; and
WHEREAS, Staff has prepared a first amendment to the agreement that addresses the
modified terms and conditions of the public art installation.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin
does hereby approve Amendment #1 to the Agreement with Colin Selig, as attached hereto
as Exhibit A, and authorizes the City Manager to execute the amendment and any other
modifications as needed, and within existing budgetary appropriations, to carry out the intent
of this Resolution.
PASSED, APPROVED AND ADOPTED this 18th day of August 2020, by the following
vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_____________________________
Mayor
ATTEST:
_________________________________
City Clerk
AMENDMENT #1 TO THE PUBLIC ART AGREEMENT BETWEEN
THE CITY OF DUBLIN AND COLIN SELIG
WHEREAS, on November 5, 2019, the City of Dublin (hereinafter referred
to as "CITY") and Colin Selig (hereinafter referred to as "Artist") entered into a Public
Art Agreement for design, fabrication and installation of Public Art at Clover Park
(hereinafter referred to as the “AGREEMENT”); and
WHEREAS, the CITY and Artist have a desire to modify the type of coating
that will be used in the final design. The coating will be a higher quality liquid coating
whereas the original coating was specified as powder coating; and
WHEREAS, the CITY and Artist now wish to amend the Agreement to,
modify Sections 3, 15.1, 16.5, 19.12 and Exhibit C of the Agreement; and
NOW THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the AGREEMENT is amended as follows:
1)Section 3 shall be rescinded in its entirety and replaced with the following:
COMPENSATION. City hereby agrees to pay Artist a sum not to exceed $34,660
as specified in Exhibit C, notwithstanding any contrary indications that may be
contained in Artist’s proposal, for services to be performed under this Agreement;
or subject to additional amounts for any revisions requested and change order
approved by the City as provided for in Section 2.3 above or elsewhere in this
Agreement. In the event of a conflict between this Agreement and Artist’s
proposal, regarding the amount of compensation, the Agreement shall prevail. City
shall pay Artist for services rendered pursuant to this Agr eement at the time and
in the manner set forth herein. The payments specified in Exhibit C shall be the
only payments from City to Artist for services rendered pursuant to this Agreement.
Artist shall submit all invoices to City in the manner specified h erein. Except as
specifically authorized by City, Artist shall not bill City for duplicate services
performed by more than one person.
Artist and City acknowledge and agree that compensation paid by City to Artist
under this Agreement is based upon Artist’s estimated costs of providing the
services required hereunder, including salaries and benefits of employees and
subcontractors of Artist. Consequently, the parties further agree that
compensation hereunder is intended to include the costs of contributio ns to any
pensions and/or annuities to which Artist and its employees, agents, and
subcontractors may be eligible. City therefore has no responsibility for such
contributions beyond compensation required under this Agreement.
2) Section 1.1 shall be rescinded in it’s entirety and replaced with the following:
Term of Services. The term of this Agreement shall begin on the date first noted
above and shall be complete by December 31, 2020, and Artist shall complete the
Work described in Exhibit A of the original agreement, prior to that date, unless
the term of the Agreement is otherwise terminated or extended, as provided for in
Section 17. The time provided to Artist to complete the services required by this
Agreement shall not affect the City’s right to terminate the Agreement, as provided
for in Section 17.
3) Section 15.1 shall be rescinded in its entirety and replaced with the following:
Independent Contractor. At all times during the term of this Agreement, Artist
shall be an independent contractor and shall not be an employee of City. This
Agreement shall not be construed as an agreement for employment. City shall
have the right to control Artist only insofar as the results of Artist’s services
rendered pursuant to this Agreement and assignment of personnel pursuant to
Subsection 1.3; however, otherwise City shall not have the right to control the
means by which Artist accomplishes services rendered pursuant to this
Agreement. Artist further acknowledges that Artist performs Services outside the
usual course of the City’s business; and is customarily engaged in an
independently established trade, occupation, or business of the same nature as
the Artist performs for the City, and has the option to perform such work for other
entities. Notwithstanding any other City, state, or federal policy, rule, regulation,
law, or ordinance to the contrary, Artist and any of its employees, agents, and
subcontractors providing services under this Agreement shall not qualify for or
become entitled to, and hereby agree to waive any and all claims to, any
compensation, benefit, or any incident of employment by City, including but not
limited to eligibility to enroll in the California Public Employees Retirement
System (PERS) as an employee of City and entitlement to any contribution to be
paid by City for employer contributions and/or employee contributions for PERS
benefits.
4) Section 16.5 shall be rescinded in its entirety and replaced with the following:
Nondiscrimination and Equal Opportunity. Artist shall not discriminate, on the
basis of a person’s race, sex, gender, religion (including religious dress and
grooming practices), national origin, ancestry, physical or mental disability,
medical condition (including cancer and genetic characteristics), marital status,
age, sexual orientation, color, creed, pregnancy, genetic information, gender
identity or expression, political affiliation or belief, military/veteran status, or any
other classification protected by applicable local, state, or federal law s (each a
“Protected Characteristic”), against any employee, applicant for employment,
subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant
for any services or programs provided by Consultant under this Agreement.
Consultant shall include the provisions of this Subsection in any subcontract
approved by the Contract Administrator or this Agreement.
5) Section 19.12 Integration shall be rescinded in its entirety and replaced with the
following:
Integration. This Agreement, including Exhibits A, B and updated Exhibit C,
represents the entire and integrated agreement between City and Artist and
supersedes all prior negotiations, representations, or agreements, either written
or oral.
6) Except to the extent inconsistent with this First Amendment, the Parties ratify and
confirm all of the terms and conditions of the AGREEMENT.
7) All requisite insurance policies to be maintained by the Consultant pursuant to
the Agreement, as may have been amended from time to time, shall include
coverage for the amended term, as described above.
8) The individuals executing this Amendment and the instruments referenced in it
on behalf of Consultant each represent and warrant that they have the legal
power, right and actual authority to bind Consultant to the terms and conditions of
this Amendment.
SIGNATURES ON THE FOLLOWING PAGE
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be
executed as of the date and year first above written.
CITY OF DUBLIN
Dated: ___________ __ By: ________________________________
Linda Smith, City Manager
ATTEST:
By:
Marsha Moore, City Clerk
ARTIST
Dated: By: _____________________________
Colin Selig, Artist
Payments Descriptions Total %Invoice Amt.Total Invoice
Invoice 1 raw material 3,800 100 3,800
FebruaUysubcontractor: footings, installation expenses 7,250 50 3,625
subcontractor: engineer’s fees 2,500 100 2,500
9,925
Invoice 2 fabrication 8,500 100 8,500
Marchoverhead 2,710 50 1,355
9,855
Invoice 3 subcontractor: coating 00 100 ,500
6HSWtransportation to site 400 100 400
subcontractor: footings, installation expenses 7,250 50 3,625
overhead 2,710 50 1,355
artist design fees 000 100 ,000
1,880
Total Invoices Amount 3,660
(;+,%,7&
&203(16$7,21
THIS AGREEMENT is made by and between the City of Dublin ("City") and Colin Selig ("Artist") as of
November 5, 2019, for the purposes and on the terms and conditions set forth below.
WHEREAS, the City requires the services of Artist to perform artistic services described in the Agreement for a
public art project as described under Section 8.58 of the Dublin Municipal Code; and
WHEREAS, the City is authorized by Section 2.36.050 of the Dublin Municipal Code to contract for the
specialized services of the artist contemplated by this Agreement; and
WHEREAS, Artist is qualified and desires to perform the artistic services required by the City as set forth in this
Agreement; and
WHEREAS, the City Council, on November 5, 2019, authorized the City Manager to negotiate an agreement
between City and Artist for the preparation of a final design, fabrication and installation for public art at Clover Park
(2901 Threecastles Way.)
NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree as
follows:
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Artist shall provide to
City the services necessary to provide the artwork ("Work") described in the Artist Proposal described in Exhibit A,
and in the Scope of Work attached as Exhibit B at the time and place, and in the manner specified therein. In the
event of a conflict in or inconsistency between the terms of this Agreement and Exhibit B, the Agreement shall
prevail.
1.1 Term of Services. The term of this Agreement shall begin on the date first noted above and shall
end on the date of completion specified in Exhibit B, and Artist shall complete the Work described
in Exhibit A prior to that date, unless the term of the Agreement is otherwise terminated or
extended, as provided for in Section 17. The time provided to Artist to complete the services
required by this Agreement shall not affect the City's right to terminate the Agreement, as provided
for in Section 17.
1.2 Standard of Performance. Artist shall perform all services required pursuant to this Agreement in
the manner and according to the standards observed by a competent practitioner of the profession
in which Artist is engaged in the geographical area in which Artist practices its profession. Artist
shall prepare all work products required by this Agreement in a substantial, first-class manner and
shall conform to the standards of quality normally observed by a person practicing in Artist's
profession.
1.3 Assignment of Personnel. 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 reassignment of any such persons, Artist shall, immediately upon
receiving notice from City of such desire of City, reassign such person or persons.
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City of Dublin and Colin Selig Page 1 of 19
1.4 Time. Artist shall devote such time to the performance of services pursuant to this Agreement as
may be reasonably necessary to meet the standard of performance provided in Section 1.1 above
and to satisfy Artist's obligations hereunder.
Section 2. SCOPE OF WORK: Artist shall provide a final design, fabrication and installation of artwork for
Clover Park public art project as more specifically described in Exhibits A and B of this Agreement,
2.1 The City shall be responsible for providing the Artist, without cost, copies of designs, drawings,
reports, and other relevant data needed by the Artist to design and execute the Project,
2.2 The Artist shall, whenever required during the term of this Agreement, present to the City in writing,
drawing, or other appropriate media for further review and approval any significant changes in the
scope, design, color, size, material, utility, support requirements, texture, or location of the site or the
Work. A significant change is any change that could affect the future installation, scheduling, site
preparation, or maintenance of the Work, or the concept of the Work as represented in the original
concept design included in Exhibit A.
2.3 The City may, at any time, request the Artist in writing to (a) revise portions of the services that
he/she has previously completed in a satisfactory manner; (b) delete portions of the Scope of the
Work that the Artist has not yet performed; (c) perform additional work beyond the Scope of Work to
be provided in Exhibit B; and, (d) 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.
2.4 In the event the request for change is agreed to by the Artist, this Agreement shall be amended, in
writing, specifying the agreed changes, including, but not limited to, a description of services,
additional budget, payment schedule, and timetable. 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 additional compensation will be charged shall be provided by the Artist without
the prior written authorization by the City.
Section 3. COMPENSATION. City hereby agrees to pay Artist a sum not to exceed $32,660 as specified in
Exhibit C, notwithstanding any contrary indications that may be contained in Artist's proposal, for services to be
performed under this Agreement; or subject to additional amounts for any revisions requested and change order
approved by the City as provided for in Section 2.3 above or elsewhere in this Agreement. In the event of a conflict
between this Agreement and Artist's proposal, attached as Exhibit A, regarding the amount of compensation, the
Agreement shall prevail. City shall pay Artist for services rendered pursuant to this Agreement at the time and in the
manner set forth herein. The payments specified in Exhibit C shall be the only payments from City to Artist for
services rendered pursuant to this Agreement. Artist shall submit all invoices to City in the manner specified herein.
Except as specifically authorized by City, Artist shall not bill City for duplicate services performed by more than one
person.
Artist and City acknowledge and agree that compensation paid by City to Artist under this Agreement is based upon
Artist's estimated costs of providing the services required hereunder, including salaries and benefits of employees
and subcontractors of Artist. Consequently, the parties further agree that compensation hereunder is intended to
include the costs of contributions to any pensions and/or annuities to which Artist and its employees, agents, and
subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation
required under this Agreement,
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City of Dublin and Colin Selig Page 2 of 19
3.1 Invoices. Artist shall submit invoices as specified in Exhibit B and C, not more often than once a
month during the term of this Agreement, based on the cost for services performed and
reimbursable costs incurred prior to the invoice date. Invoices shall contain the following
information:
® Serial identifications of each billable phase; i.e., Bill No. 1 Phase I for the first invoice, etc.;
• The beginning and ending dates of the billing period;
® A Task Summary containing the original contract amount, the amount of prior billings, the
total due this period, the balance available under the Agreement, the Artist's signature.
3.2 Total Payment. City shall pay for the services to be rendered by Artist pursuant to this
Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by
Artist in rendering services pursuant to this Agreement. City shall make no payment for any extra,
further, or additional service pursuant to this Agreement.
In no event shall Artist submit any invoice for an amount in excess of the maximum amount of
compensation provided above either for a task or for the entire Agreement, unless the Agreement
is modified prior to the submission of such an invoice by a properly executed change order or
amendment.
3.3 Payment of Taxes. Artist is solely responsible for the payment of employment taxes incurred
under this Agreement and any similar federal or state taxes.
3.4 Payment upon Termination. In the event that the City or Artist terminates this Agreement
pursuant to Section 17, the City shall compensate the Artist for all outstanding costs and
reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of
termination. Artist shall maintain adequate logs and timesheets in order to verify costs incurred to
that date.
3.5 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 the
Contract Administrator.
Section 4. 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 services required by this
Agreement. City shall make available to Artist only the facilities and equipment listed in Exhibit B, and only under the
terms and conditions set forth herein.
Section 5. RESPONSIBILITY OF THE ARTIST
5.1 The Artist agrees that an essential element of this Agreement is the skill and creativity of the Artist.
The Artist shall not assign the creative or artistic portions of the Work to another party for the
production of the Work without the written consent of the City. Failure to conform to this provision
may be cause for termination of this Agreement, at the sole option of the City.
5.2 The Artist shall be responsible for providing services described in Exhibit B, 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 $32,660. The Artist shall, without
additional compensation, correct or revise any errors, omissions, or other deficiencies in his/her
Work.
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City of Dublin and Colin Selig Page 3 of 19
5.3 The Artist shall complete the fabrication and installation of the Work in substantial conformity with
the attached Exhibit B, Scope of Work.
5.4 The risk of loss or damage to the Work shall be borne by the Artist until final acceptance by City.
The Artist shall take such measures as are necessary to protect the Work from loss or damage
until final acceptance by City.
Section 6. TIMELY PROVISION OF SERICES• 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.
6.1 Damages for Delayed Performance. Subject to reasonable proof and documentation confirming
the same submitted by the City, Artist shall be liable for all incidental and consequential damages
resulting, directly or indirectly, from delays in performance caused by Artist's acts or omissions.
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 to City
for damages resulting from delays caused by force majeure or by acts or omissions of City,
Architect or the General Contractor; or third party vandalism, except to the extent Artist failed
reasonably to mitigate such damages.
6.2 Illness, Injury, Death or Incapacity. Should Artist die, become ill, injured or otherwise
incapacitated (collectively, "incapacitated") such that Artist is unable to work for any period not
exceeding 30 days (whether consecutive or non-consecutive), any delay arising out of such
incapacity will be allowed by City whenever it is practicable to do so, considering the facts and
circumstances of the Work, the Project, the Architect, the General Contractor and the Client. City
may require Artist to provide medical certification of any claimed incapacity. In the event Artist is
incapacitated such that Artist is unable to work for a period exceeding a total of 30 days (whether
consecutive or nonconsecutive), City may, at its option, undertake to complete and install the Work
in Artist's absence, so long as the final Artwork is substantially similar to that designed by Artist. If
City undertakes to complete the Work, City shall give due consideration to Artist's suggestions, and
Artist may disclaim authorship of the Work. If City exercises its option to implement the Artwork in
Artist's absence, any compensation paid or payable to Artist shall be reduced by the costs and
expenditures of City in completion and installation of the Work. In case of incapacity exceeding 30
days, the following person shall be Artist's representative vis-a-vis the City for purposes of this
Section 6 unless otherwise directed in writing by the Artist:
Colin Selig
1547 Palos Verdes #315
Walnut Creek, CA 94597
(925) 457-5060
info@colinselig,com
Section 7. APPROVAL AND FINAL ACCEPTANCE OF ARTWORK. Payment does not imply acceptance of
work. The granting of any payment by City, or the receipt thereof by Artist, shall in no way lessen'the liability of Artist
to replace unsatisfactory work, equipment, or materials, although the unsatisfactory character of such work,
equipment or materials may not have been apparent or detected at the time such payment was made. Materials,
equipment, components, or workmanship that does not conform to the requirements of this Agreement may be
rejected by City and in such case must be replaced by Artist without as soon as possible.
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City of Dublin and Colin Selig Page 4 of 19
7.1 The granting or withholding of any approval by the City shall be determined by the City in its sole
and reasonable discretion. However, the City shall approve all deliverables if they materially
conform to plans or Contract Documents previously approved by the City. If the City withholds
approval of any deliverables or Phase, in addition to other rights or remedies available to the City
under the Agreement or applicable law, the City shall have the right to terminate this Agreement
immediately and shall have no further obligations under this Agreement.
7.2 Final Acceptance. Artist shall advise the City in writing when Artist has completed all obligations,
services and deliverables under this Agreement and all modifications. The City promptly shall send
a Notice of Response identifying in writing any obligations, services or deliverables that Artist has
not satisfactorily met, any defects in Artist's performance, and the requirements for Artist to cure
any such default. Artist shall have 20 days from dispatch of the Notice of Response to cure any
defects in Artist's performance identified in the City's Notice of Response. The Artwork shall not be
officially accepted by City unless the City has issued a resolution of Final Acceptance. City shall
make a good faith effort to make a determination as to Final Acceptance promptly.
7.3 Public Art Collection. Upon Final Acceptance, the City shall accession the Artwork into the Public
Art Collection.
Section 8. WARRANTIES/STANDARDS
8.1 Unique. Artist warrants that the design of the Artwork as expressed in the Proposal, Exhibit A, is
an edition of one, and that neither Artist nor Artist's agents will execute or authorize another to
execute another work of the same or substantially similar image, design, dimensions and materials
as the Artwork.
8.2 Warranty of Title. Artist represents and warrants that Artist is the sole author of the Artwork and
that Artist is the sole owner of any and all copyrights pertaining to the Artwork. Artist further
represents that the Artwork is free and clear of any liens and that there are no outstanding disputes
in connection with property rights, intellectual property rights or any other rights in the Artwork or
any parts of the Artwork.
8.3 The Artist shall faithfully perform the work required under this Agreement in accordance with
standards of care, skill, training, diligence, and judgment provided by highly competent
professionals who perform work of a similar nature to the Work described in this Agreement. Artist
shall assign only competent personnel to perform services pursuant to this Agreement, In the event
that City, in its sole discretion, at any time during the term of this Agreement, desires the removal
of any such persons, Artist shall, immediately upon receiving notice from City of such desire of
City, cause the removal of such person or persons, unless in the Artist's sole opinion, the skill or
creativity of such person or persons is essential to the creation of the Work,
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City of Dublin and Colin Selig Page 5 of 19
8.4 Warranty of Workmanship. The Artist shall guarantee his/her Work to be free from faults of
material and workmanship for a period of one (1) year after installation and final acceptance by the
City. The Artist shall deliver the Work to the City free and clear of any liens from any source
whatsoever. The foregoing guarantees shall apply only to the Work that is entirely that of the Artist
or persons responsible to the Artist, as installed, and shall not apply to materials or workmanship of
projects in which the Work of the Artist is integrated or combined, or to materials purchased,
acquired, or installed by a person or entity not responsible to the Artist.
8.5 Warranty of Public Safety. Artist represents and warrants that the Work will not pose a danger to
public health or safety in view of the possibility of misuse, if such misuse is in a manner that was
reasonably foreseeable at any time during the term of this Agreement,
8.6 Warranty of Acceptable Standard of Display and Operation. Artist represents and warrants
that:
8.6.1 Occasional or minimal cleaning and repair of the Artwork and any associated working
parts and/or equipment will maintain the Work within an acceptable standard of public
display;
8.6.2 Foreseeable exposure to the elements and general wear and tear will cause the Work to
experience only minor repairable damages and will not cause the Work to fall below an
acceptable standard of public display; and
8.6.3 With general routine cleaning and repair, and within the context of foreseeable exposure
to the elements and general wear and tear, the Work 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.
8.7 Manufacturer's Warranties. To the extent the Work incorporates products covered by a
manufacturer's warranty, Artist shall provide copies of such warranties to City.
Section 9. MAINTENANCE OF ARTWORK
9.1 Unless specifically provided in this Agreement, Artist shall not be responsible for ongoing
maintenance of the Artwork.
9.2 Artist shall provide the City with a General Maintenance Plan for the Artwork, with a detailed
description of future anticipated maintenance requirements; a recommended maintenance
schedule; anticipated and required care and/or replacement/upgrade of any part of the Artwork and
associated moving parts or equipment including any staff time involved in displaying or operating
artwork and the frequency of such staff involvement; and written instructions and manufacturer's
specifications for reasonably foreseeable maintenance and preservation activities relating to the
Artwork.
9.3 The Artwork shall be durable, taking into consideration that the installation site is an unsecured
public space that may be exposed to elements such as weather, temperature variation, and
considerable movement of people and equipment. Artist shall ensure that all maintenance
requirements will be reasonable in terms of time and expense.
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City of Dublin and Colin Selig Page 6 of 19
9.4 Although City strives to maintain the Public Art Collection in good repair and condition, City is not
required by this Agreement to maintain the Artwork to any particular standard, City may determine
to allow the Artwork to deteriorate in accordance with the Artwork's temporary life span, if deemed
appropriate by City or if City lacks sufficient funds for required maintenance and/or conservation, if
the Artwork suffers deterioration, City shall have sole discretion to determine whether to remove
the Artwork from display as a result of deterioration, whether to replace any portion of the Artwork
or translate any component into new media, or whether to maintain the Artwork on display despite
its deteriorated condition.
9.5 The anticipated life span of the Artwork is 25 years from the date of final acceptance by the City.
After that time, the City in its sole discretion may re-evaluate the Artwork to determine if it retains
its identity as a work of art and, if not, whether to take appropriate action, including the possibility of
destroying the Artwork. If the City determines that, through decay, vandalism or other forces, the
Artwork has lost its integrity to the point where it should be destroyed, the City shall first offer the
Artwork to Artist free of charge and in writing.
Section 10. ARTIST'S RIGHTS: CITY'S OWNERSHIP RIGHTS
10A The City intends to display the Artwork as originally created by Artist in Exhibit A and to maintain
the Artwork in good condition. Public artworks commissioned by the City are sometimes integrated
into their site, such that they become an integral, permanent and site -specific part of the building's
architecture or landscaped environment and removal of the artwork would result in significant
changes to the artwork and the building's architecture. City, however, shall preserve complete
flexibility to operate and manage City property in the public's interest. Therefore, City retains the
absolute right to alter the Artwork in City's sole judgment. For example, City may alter the Artwork
to eliminate hazard, to comply with the ADA, to otherwise aid City in the management of its
property and affairs, or through neglect or accident. If, during or after the term of this Agreement,
City finds the Site to be inappropriate, City has the right to install the Artwork at an alternate
location that City chooses in its sole discretion. If the Artwork is free-standing such that it can be
removed without significant damage to the Artwork or the Site, and if the City authorizes the
removal of the Artwork, the City shall take reasonable precautions to minimize alteration of the
Artwork during removal.
10.2 With respect to the Artwork produced under this Agreement, and in consideration of the procedures
and remedies specified in this Agreement, Artist waives any and all claims, arising at any time and
under any circumstances, against City, its officers, agents, employees, successors and assigns,
arising under the federal Visual Artists Rights Act (and 113(d)), the California Art Preservation Act
(Cal, Civil Code §§987 et seq.), and any other local, state, federal or international laws that convey
rights of the same nature as those conveyed under 17 U,S.C, §106A, Cal. Civil Code §§987 et
seq., or any other type of moral right protecting the integrity of works of art. If the Artwork is
incorporated into a building such that the Artwork cannot be removed from the building without
alteration of the Artwork, Artist waives any and all such claims against any future owners of the
site, and its agents, officers and employees, for alteration of the Artwork,
10.3 If City intends to take any action with respect to the site or the Artwork that would alter the Artwork,
other than routine cleaning and maintenance, the following procedures shall apply,
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10.3.1 Notice. Where time permits, City shall make reasonable good faith efforts to notify Artist
at least 20 calendar days prior to authorizing any alteration of the Artwork, at the last
phone number or address provided by Artist to the City's Contract Administrator. Where
time does not permit prior to alteration of the Artwork — for example, in cases of public
hazard, accident or unauthorized alteration — City shall notify Artist within 30 calendar
days after such alteration.
10.3.2 Consultation. After receiving such notice, Artist shall consult with City to determine
whether the Artwork can be restored or relocated, and to attempt to come to a mutually
agreeable plan for disposition of the Artwork. Such consultation shall be without charge by
Artist unless otherwise specifically agreed in writing. If City intends to remove the Artwork,
Artist shall consult regarding methods to minimize or repair any Alteration to the Artwork
caused by such removal and the potential costs of such removal.
10.3.3 Restoration. If the Artwork is altered, with or without prior notice to Artist, and City intends
to maintain the Artwork on display, City shall make a reasonable good faith effort to
engage Artist in the restoration of the Artwork and to compensate Artist for Artist's time
and efforts at fair market value, which may be the subject of a future Agreement between
Artist and City. However, City has no obligation under this Agreement to restore the
Artwork to its original condition, to compensate Artist for any restoration work, or to
maintain the Artwork on display. If Artist fails or refuses to negotiate with City in good faith
with respect to any restoration, City may contract with any other qualified art conservator
or artist for such restoration, During Artist's lifetime, City shall make best efforts not to
display or de -accession only a portion of the Artwork without Artist's consent.
10.3.4 Removal by Artist. Where time permits, if City intends to take action that will destroy or
significantly alter the Artwork, such as destruction of all or part of the site, and City
determines that it will not remove the Artwork itself, City shall allow Artist to remove the
Artwork at Artist's expense within 60 days of notice from the City of the need to remove
the Artwork, in which case title shall revert to Artist. If Artist fails to remove the Artwork
within that 60 day period, City may alter the Artwork in any manner, including destroying
it, in City's sole discretion.
10.3.5 Remedies. If City breaches any of its obligations under this Section, Artist's remedies
shall be limited as follows: If City inadvertently fails to provide a required prior notice of
alteration, City will provide notice as soon as it discovers the omission, and before
alteration of the Artwork if that remains possible. If City alters the Artwork without
providing Artist a required prior notice of alteration, Artist shall be given the first right of
refusal to restore the Artwork at the same location and City shall make reasonable efforts
to provide funding for the restoration. If City funds cannot be made available after
reasonable efforts are made to secure such funding, Artist may, but is not obligated to,
restore the Artwork at Artist's expense. If Artist elects not to restore the Artwork, City may
retain another artist or conservator to restore it, or may Alter the Artwork in any manner, at
City's sole discretion.
10.4 If City alters the Artwork without Artist's consent in a manner that is prejudicial to Artist's reputation,
Artist retains the right to disclaim authorship of the Artwork in accordance with California Civil Code
§987(d) and 17 U.S.C. §106A(a)(2).
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10.5 Except as provided in this Agreement, with respect to third parties who are not officers, employees,
agents, successors or assigns of City, Artist retains Artist's moral rights in the Artwork, as
established in the Visual Artists Rights Act (17 U.S.C. §§106A and 113(d)), the California Art
Preservation Act (Cal. Civil Code §§987 and 989), or any other local, state, federal or international
moral rights laws that protect the integrity of works of art. Accordingly, nothing herein shall prevent
Artist from pursuing a claim for alteration of the Artwork against a third party who is not an officer,
employee, agent, successor or assign of City. City has no obligation to pursue claims against third
parties to remedy or prevent alteration of the Artwork. However, as owner of the Artwork, City may
pursue claims against third parties for damages or to restore the Artwork if the Artwork has been
altered without City's authorization,
Section 11. INTELLECTUAL PROPERTY AND PUBLICITY RIGHTS
11.1 Copyright. Subject to usage rights and licenses granted to City hereunder, Artist shall retain all 17
U.S.C. §106 copyrights in all original works of authorship produced under this Agreement. Artist's
copyright shall not extend to predominantly utilitarian aspects of the Work, such as landscaping
elements, furnishings, or other similar objects. If Artist is comprised of two or more individual
persons, the individual persons shall be deemed joint authors of the Work.
11.2 City's Intellectual Property License. Artist grants to City, and to City's agents, authorized
contractors and assigns, an unlimited, non-exclusive and irrevocable license to do the following
with respect to the Work, the Artwork, and any original works of authorship created under this
Agreement, whether in whole or in part, in all media (including electronic and digital) throughout the
universe:
11.2.1 Implementation, Use and Display. City may use and display the Work (to the extent the
Work includes graphic representations or models) and the Artwork. To the extent the
Work involves design elements that are incorporated by City into the design of the site,
City may implement such elements at the site.
11.2.2 Reproduction and Distribution. City may make and distribute, and authorize the
making, display and distribution of, photographs and other 2-dimensional reproductions.
City may use such reproductions for any City -related purpose, including advertising,
educational and promotional materials, brochures, books, flyers, postcards, print,
broadcast, film, electronic and multimedia publicity, gifts for City benefactors,
documentation of City's Public Art Collection, and catalogues or similar publications. City
shall ensure that such reproductions are made in a professional and tasteful manner, in
the sole and reasonable judgment of the City. The proceeds from the sale of any such
reproductions shall be used to maintain and support City's Public Art Collection or for any
other public purposes that City deems appropriate. The license granted hereunder
includes the right to create 2-dimensional reproductions on items such as tote -bags, T-
shirts, coffee mugs and similar merchandise, Nothing hereunder shall be construed to
constrain Artist from creating posters, note cards, or other reproductions of the Artwork
with appropriate credit to the City.
11.2.3 Public Records Requests. Any documents provided by Artist to City are public records
and City may authorize third parties to review and reproduce such documents pursuant to
public records laws, including the San Francisco Sunshine Ordinance and California
Public Records Act.
11.3 Third Party Infringement. The City is not responsible for any third party infringement of Artist's
copyright and not responsible for protecting the intellectual property rights of Artist.
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11.4. Credit. All reproductions by the City shall contain a credit to the Artist and a copyright notice
substantially in the following form: "Colin Selig (c), March 2, 2020." The Artist shall use his/her best
efforts to include a credit reading substantially "An original work commissioned by the City of
Dublin, California" in any public showing under the Artist's control of reproductions of the Work.
11.5 Publicity. City shall have the right 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 regarding City or the City. Artist shall be reasonably available to attend
any inauguration or presentation ceremonies relating to the public dedication of the Artwork.
11.6 Trademark. In the event that City's use of the Artwork creates trademark, service mark or trade
dress rights in connection with the Artwork, City shall have an exclusive and irrevocable right in
such trademark, service mark, or trade dress,
11.7 Resale Royalty. If City sells the Artwork as a fixture to real property, and if the resale value of the
Artwork is not itemized separately from the value of the real property, the parties agree that the
resale price of the Artwork shall be presumed to be less than the purchase price paid by City under
this Agreement. Thus, City has no obligation to pay resale royalties pursuant to California Civil
Code §986 or any other law requiring the payment of resale royalties. If City sells the Artwork as an
individual piece, separate from or itemized as part of a real property transaction, City shall pay to
Artist a resale royalty to the extent required by law, based upon the sale price of the Artwork.
11.8 If for any reason the proposed design is not implemented, all rights to the proposed artwork shall
be retained by the Artist. The City shall have no right to implement the proposed artwork, whether
or not protected by copyright, unless and until the City and the Artist enter into a subsequent
agreement for the implementation of the proposed design.
Section 12. OWNERSHIP OF RESULTS AND RISK OF LOSS
12.1 Title Transfer. Except in the case of early termination of this Agreement, title to the Artwork shall
transfer from Artist to City upon the City's Final Acceptance of the Artwork. Title transfer shall be
self-executing upon City's Final Acceptance. Artist will cooperate in providing to City any title
transfer documents City may request or require during or after the Term of this Agreement.
12.2 Risk of Loss. The risk of loss or damage to the Artwork shall be borne solely by Artist until Final
Acceptance of the Artwork by the City. Artist shall take steps to protect the Artwork from loss or
damage. The City staff shall make a good faith effort to inspect the Artwork within 15 days after
completion so that the City can approve the Artwork by resolution in a timely fashion.
12.3 Ownership of Documents. Conceptual Design, Design Development Documents, Construction
Documents, Samples, Mock-ups and all other documents prepared and submitted by Artist to the
City pursuant to this Agreement shall belong to the City, Artist may retain originals of such
documents and items and provide copies to City.
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Section 13. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Artist, at its
own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to persons or
damages to property that may arise from or in connection with the performance of the work hereunder by the Artist
and its agents, representatives, employees, and subcontractors. Artist shall provide proof satisfactory to City of such
insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects to the
City. Artist shall maintain the insurance policies required by this section throughout the term of this Agreement. The
cost of such insurance shall be included in the Artist's bid. Artist shall not allow any subcontractor to commence work
on any subcontract until Artist has obtained all insurance required herein for the subcontractor(s) and provided
evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement
prior to execution.
13.2 Commercial General and Automobile Liability Insurance.
13.2.1 General requirements. Artist, at its own cost and expense, shall maintain commercial
general and automobile liability insurance for the term of this Agreement in an amount not
less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, TWO MILLION
DOLLARS ($2,000,000,00) aggregate, combined single limit coverage for risks associated
with the work contemplated by this Agreement. If a Commercial General Liability
Insurance or an Automobile Liability form or other form with a general aggregate limit is
used, either the general aggregate limit shall apply separately to the work to be performed
under this Agreement or the general aggregate limit shall be at least twice the required
occurrence limit. Such coverage shall include but shall not be limited to, protection
against claims arising from bodily and personal injury, including death resulting therefrom,
and damage to property resulting from activities contemplated under this Agreement,
including the use of owned and non -owned automobiles,
13.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad
as Insurance Services Office Commercial General Liability occurrence form CG 0001 (ed.
11/88) or 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. Automobile coverage shall be at
least as broad as Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90)
Code 8 and 9 ("any auto"). No endorsement shall be attached limiting the coverage.
13.2.3 Additional requirements. Each of the following shall be included in the insurance
coverage or added as an endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be covered as
additional insureds with respect to each of the following: liability arising out of
activities performed by or on behalf of Artist, including the insured's general
supervision of Artist; products and completed operations of Artist; premises
owned, occupied, or used by Artist; and automobiles owned, leased, or used by
the Artist. The coverage shall contain no special limitations on the scope of
protection afforded to City or its officers, employees, agents, or volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not on a
claims -made basis.
C. 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.
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d. Any failure of Artist to comply with reporting provisions of the policy shall not
affect coverage provided to City and its officers, employees, agents, and
volunteers.
An endorsement shall state that coverage shall not be canceled except after
thirty (30) days' prior written notice by certified mail, return receipt requested, has
been given to the City. Artist shall notify City within 14 days of notification from
Artist's insurer if such coverage is suspended, voided or reduced in coverage or
in limits.
13.3 All Policies Requirements.
13.3.1 Acceptability of insurers. All insurance required by this section is to be placed with
insurers with a Bests' rating of no less than ANIL
13.3.2 Verification of coverage. Prior to beginning any work under this Agreement, Artist shall
furnish City with certificates of insurance and with original endorsements effecting
coverage required herein. 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 City reserves the right to require complete, certified copies of all required insurance
policies, at any time.
13.3.3 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.
13.3.4 Variation. The City may approve a variation in the foregoing 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.
13.3.5 Deductibles and Self -Insured Retentions. Artist shall disclose to and obtain the
approval of City for the self -insured retentions and deductibles before beginning any of the
services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Artist may increase such deductibles or self -
insured retentions with respect to City, its officers, employees, agents, and volunteers.
The Contract Administrator may condition approval of an increase in deductible or self -
insured retention levels with a requirement that Artist procure a bond, guaranteeing
payment of losses and related investigations, claim administration, and defense expenses
that is satisfactory in all respects to each of them.
13.3.6 Notice of Reduction in Coverage. In the event that any coverage required by this
section is reduced, limited, or materially affected in any other manner, Artist shall provide
written notice to City at Artist's earliest possible opportunity and in no case later than five
days after Artist is notified of the change in coverage.
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13.4 Remedies. In addition to any other remedies City may have if Artist fails to provide or maintain
any insurance policies or policy endorsements to the extent and within the time herein required,
City may, at its sole option exercise any of the following remedies, which are alternatives to other
remedies City may have and are not the exclusive remedy for Artist's breach:
® Obtain such insurance and deduct and retain the amount of the premiums for such insurance
from any sums due under the Agreement;
® Order Artist to stop work under this Agreement or withhold any payment that becomes due to
Artist hereunder, or both stop work and withhold any payment, until Artist demonstrates
compliance with the requirements hereof; and/or
® Terminate this Agreement.
Section 14. INDEMNIFICATION AND ARTIST'S RESPONSIBILITIES. Artist shall indemnify, defend with
counsel mutually selected by the City and Artist, and hold harmless the City and its officials, officers, employees,
agents, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of
action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any
federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or
negligent acts or omissions of Artist or its employees, subcontractors, or agents, by acts for which they could be held
strictly liable, or by the quality or character of their work. The foregoing obligation of Artist shall not apply when (1)
the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful misconduct
of the City or its officers, employees, agents, or volunteers and (2) the actions of Artist or its employees,
subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or violation of law.
It is understood that the duty of Artist to indemnify and hold harmless includes the duty to defend as set forth in
Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required
under this Agreement does not relieve Artist from liability under this indemnification and hold harmless clause. This
indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not such
insurance policies shall have been determined to apply. By execution of this Agreement, Artist acknowledges and
agrees to the provisions of this Section and that it is a material element of consideration.
In the event that Artist or any employee, agent, or subcontractor of Artist providing services under this Agreement is
determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be
eligible for enrollment in PERS as an employee of City, Artist shall indemnify, defend, and hold harmless City for the
payment of any employee and/or employer contributions for PERS benefits on behalf of Artist or its employees,
agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which
would otherwise be the responsibility of City.
Section 15. STATUS OF ARTIST AS INDEPENDENT CONTRACTOR.
15.1 Independent Contractor. At all times during the term of this Agreement, Artist shall be an
independent contractor and shall not be an employee of City. City shall have the right to control
Artist only insofar as the results of Artist's services rendered pursuant to this Agreement and
assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the
right to control the means by which Artist accomplishes services rendered pursuant to this
Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or
ordinance to the contrary, Artist and any of its employees, agents, and subcontractors providing
services under this Agreement shall not qualify for or become entitled to, and hereby agree to
waive any and all claims to, any compensation, benefit, or any incident of employment by City,
including but not limited to eligibility to enroll in the California Public Employees Retirement System
(PERS) as an employee of City and entitlement to any contribution to be paid by City for employer
contributions and/or employee contributions for PERS benefits.
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15.2 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 in this Agreement.
15.3 Artist No Agent. 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.
16.1 Governing Law. The laws of the State of California shall govern this Agreement.
16.2 Compliance with Applicable Laws. Artist and any subcontractors shall comply with all laws
applicable to the performance of the work hereunder.
16.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal
assistance from another governmental entity, Artist and any subcontractors shall comply with all
applicable rules and regulations to which City is bound by the terms of such fiscal assistance
program.
16.4 Licenses and Permits. Artist represents and warrants to City that Artist and its employees,
agents, and any subcontractors have all licenses, permits, qualifications, and approvals of
whatsoever nature that are legally required to practice their respective professions. Artist
represents and warrants to City that Artist and its employees, agents, any subcontractors shall, at
their 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 to practice their respective professions.
In addition to the foregoing, Artist and any subcontractors shall obtain and maintain during the term
of this Agreement valid Business Licenses from City.
16.5 Nondiscrimination and Equal Opportunity.
Artist shall not discriminate, on the basis of a person's race, sex, gender, religion (including
religious dress and grooming practices), national origin, ancestry, physical or mental disability,
medical condition (including cancer and genetic characteristics), marital status, age, sexual
orientation, color, creed, pregnancy, genetic information, gender identity or expression, political
affiliation or belief, military/veteran status, or any other classification protected by applicable local,
state, or federal laws (each a "Protected Characteristic"), against any .employee, applicant for
employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for
any services or programs provided by Artist under this Agreement. Artist shall include the
provisions of this Subsection in any subcontract approved by the Contract Administrator or this
Agreement.
16.6 (Intentionally deleted)
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17.1 Termination. City may cancel this Agreement at any time and without cause upon written
notification to Artist.
Artist may cancel this Agreement upon thirty (30) days' written notice to City and shall include in
such notice the reasons for cancellation.
In the event of termination, Artist shall be entitled to compensation for services performed to the
effective date of termination; City, however, may condition payment of such compensation upon
Artist delivering to City any or all documents, photographs, computer software, video and audio
tapes, and other materials provided to Artist or prepared by or for Artist or the City in connection
with this Agreement.
17.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement
beyond that provided for in Subsection 1.1, Any such extension shall require a written amendment
to this Agreement, as provided for herein. Artist understands and agrees that, if City grants such
an extension, City shall have no obligation to provide Artist with compensation beyond the
maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract
Administrator, City shall have no obligation to reimburse Artist for any otherwise reimbursable
expenses incurred during the extension period.
17.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties.
17.4 Assignment and Subcontracting. City and Artist recognize and agree that this Agreement
contemplates personal performance by Artist and is based upon a determination of Artist's unique
personal competence, experience, and specialized personal knowledge, Moreover, a substantial
inducement to City for entering into this Agreement was and is the professional reputation and
competence of Artist. Artist may not assign this Agreement or any interest therein without the prior
written approval of the Contract Administrator. Artist shall not subcontract any portion of the
performance contemplated and provided for herein, other than to the subcontractors noted in the
proposal, without prior written approval of the Contract Administrator.
17.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this
Agreement allocating liability between City and Artist shall survive the termination of this
Agreement.
17.6 . Options upon Breach by Artist. If Artist materially breaches any of the terms of this Agreement,
City's remedies shall include, but not be limited to, the following:
17.6.1 Immediately terminate the Agreement;
17.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work
product prepared by Artist pursuant to this Agreement;
17.6.3 Retain a different Artist to complete the work described in Exhibit A not finished by Artist;
or
17.6.4 Charge Artist the difference between the cost to complete the work described in Exhibit A
that is unfinished at the time of breach and the amount that City would have paid Artist
pursuant to Section 2 if Artist had completed the work,
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18.1 City Access to Artwork; Inspection of Work and Artwork. City shall have the reasonable right
to, at its sole expense, inspect the Work, including the Artwork, at the fabrication Site during any
phase of the project at any time. In the event that all or part of the Work is created in a location
other than the Site, the City shall have the right to inspect the Work, including the Artwork, at any
phase of the project following 48 hours written notice from the City to the Artist. The Artist shall be
responsible for facilitating City's prompt access to Artist's property or the property of the Artist's
subcontractors where the Work or portions of the Work are being fabricated or installed.
18.2 Status Reports. Artist shall submit written reports regarding the status of the Work, including the
Artwork, as may be reasonably requested by the City, The City shall determine the format for the
content of such reports. The timely submission of all reports is a necessary and material term and
condition of this Agreement, The reports, including any copies, shall be submitted on recycled
paper and printed on double -sided pages to the maximum extent possible.
18.3 Artist Availability. Artist or Artist's authorized agent shall be available at Artist's sole expense for
up to 2 visits to Dublin to ensure the proper installation and operation of the Artwork. During each
visit to Dublin, unless otherwise agreed upon by the City, the Artist's visit shall last for at least a full
8 hour day.
18.4 Records Created as Part of Artist's Performance. With the exception of model submitted with
initial proposal, all reports, data, maps, models, charts, studies, surveys, photographs,
memoranda, plans, studies, specifications, records, files, or any other documents or materials, in
electronic or any other form, that Artist prepares or obtains pursuant to this Agreement and that
relate to the matters covered hereunder shall be the property of the City. Artist hereby agrees to
deliver those documents to the City upon termination of the Agreement. It is understood and
agreed that the documents and other materials, including but not limited to those described above,
prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily
suitable for any future or other use. City and Artist agree that, until final approval by City, all data,
plans, specifications, reports and other documents are confidential and will not be released to third
parties without prior written consent of both parties, It is also agreed that proposal model remains
property of the Artist and will be returned to Artist after the finished sculpture is installed.
18.5 Artist's Books and Records. Artist shall maintain any and all ledgers, books of account, invoices,
vouchers, canceled checks, and other records or documents evidencing or relating to charges for
services or expenditures and disbursements charged to the City under this Agreement for a
minimum of three (3) years, or for any longer period required by law, from the date of final payment
to the Artist to this Agreement.
18.6 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement
requires Artist to maintain shall be made available for inspection, audit, and/or copying at any time
during regular business hours, upon oral or written request of the City. Under California
Government Code Section 8546.7, if the amount of public funds expended under this Agreement
exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the
examination and audit of the State Auditor, at the request of City or as part of any audit of the City,
for a period of three (3) years after final payment under the Agreement.
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19.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for declaratory
relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The
court may set such fees in the same action or in a separate action brought for that purpose.
19.2 Venue. In the event that either party brings any action against the other under this Agreement, the
parties agree that trial of such action shall be vested exclusively in the state courts of California in
the County of Alameda.
19.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement
is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in
full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not
void or affect the validity of any other provision of this Agreement.
19.4 No Implied Waiver of Breach. 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,
19.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall
apply to and bind the successors and assigns of the parties.
19.6 Use of Recycled Products. Artist shall prepare and submit all reports, written studies and other
printed material on recycled paper to the extent it is available at equal or less cost than virgin
paper.
19.7 Conflict of Interest. Artist may serve other clients, but none whose activities within the corporate
limits of City or whose business, regardless of location, would place Artist in a "conflict of interest,"
as that term is defined in the Political Reform Act, codified at California Government Code Section
81000 et seq.
Artist shall not employ any City official in the work performed pursuant to this Agreement, No
officer or employee of City shall have any financial interest in this Agreement that would violate
California Government Code Sections 1090 et seq.
Artist hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an
employee, agent, appointee, or official of the City. If Artist was an employee, agent, appointee, or
official of the City in the previous twelve months, Artist warrants that it did not participate in any
manner in the forming of this Agreement. Artist understands that, if this Agreement is made in
violation of Government Code §1090 et.seq., the entire Agreement is void and Artist will not be
entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Artist will be required to reimburse the City for any sums paid to
the Artist. Artist understands that, in addition to the foregoing, it may be subject to criminal
prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from
holding public office in the State of California.
19.E Solicitation. Artist agrees not to solicit business at any meeting, focus group, or interview related
to this Agreement, either orally or through any written materials.
19.9 Contract Administration. This Agreement shall be administered by the City Manager or his/her
designee ("Contract Administrator"). All correspondence shall be directed to or through the
Contract Administrator or his or her designee.
Public Art Agreement between the November 5, 2019
City of Dublin and Colin Selig Page 17 of 19
19.10 Notices. Any written notice to Artist shall be sent to;
Colin Selig
1547 Palos Verdes #315
Walnut Creek, CA 94597
(925) 457-5060
info@colinselig,com
Any written notice to City shall be sent to:
City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
(925) 833-6645
19.11 Professional Seal. Where applicable in the determination of the contract administrator, the first
page of a technical report, first page of design specifications, and each page of construction
drawings shall be stamped/sealed and signed by the licensed professional responsible for the
report/design preparation. The stamp/seal shall be in a block entitled "Seal and Signature of
Registered Professional with report/design responsibility," as in the following example.
Seal and Signature of Registered Professional with
report/design responsibility.
19.12 Integration. This Agreement, including the proposal, scope of work, and payment schedule
attached hereto and incorporated herein as Exhibits A, B and C, represents the entire and
integrated agreement between City and Artist and supersedes all prior negotiations,
representations, or agreements, either written or oral,
Public Art Agreement between the November 5, 2019
City of Dublin and Colin Selig Page 18 of 19
CITY, DUBLIN
ir
is Foss, City ManaRr/
Attest:
Caroline Soto, City Clerk
Approved as to Form:
John Iker, City Attorney
ARTIST
Colin Selig, Artist
Public Art Agreement between the November 5, 2019
City of Dublin and Colin Selig Page 19 of 19
Conservation Assessment
Date: 8-19-19
Client: City of Dublin, Attn: Tyler Phillips
Object: Proposed Artwork, ‘Arachnicat’ by Colin Selig for Clover Park, Dublin
Detail of Proposed Design-Artist Provided
Description and Materials:
is design by Colin Selig is described by the artist as a ‘whimsical biomorphic sculpture climbing up out of the adjacent
creek-bed and strip of trees to explore Clover Park’.
Proposed Measurements:
Height: Approx. 7.5 feet tall and 9 feet wide and deep
Concrete Footing: approximately 10 feet in diameter.
Preservation-Arts.com 510.808.7894 info@preservation-arts.com 743 47th Street #102, Oakland, CA 94609
Conservation Assessment of Proposed Sculpture ‘Arachnicat’ by Colin Selig for Clover Park, Dublin
Location:
e sculpture will be located in Clover Park in a landscaped area. (see image below). No other landscaping details were
provided.
Design Concept (Artist Rendering)
Design:
e artist describes the sculpture as ‘Abstract and organic in form, she has an insect’s body comprising three spherical
elements. e shapes of her ve legs are anthropomorphically muscular yet their uantity and attachment to her body is
spider-like. Arachnicat is designed for tactile human interaction and will appeal to people of all ages.’
e sculpture also doubles as a bench, ‘Between her legs are three seating surfaces, allowing pedestrians and bicyclists to sit
and relax within her. ese seating elements also add important structural strength to the piece.’
Preservation-Arts.com Page 2 of 5
Conservation Assessment of Proposed Sculpture ‘Arachnicat’ by Colin Selig for Clover Park, Dublin
Artist Design with Dimensions
Materials:
e following are presented as materials for the sculpture:
SUBSTRATE: Repurposed scrap steel propane tanks.
e tanks are cut apart and the pieces reassembled to form 1/4” thick curved steel parts.
CONSTRUCTION: Joins are seam welded together and all welds and edges are sanded smooth.
PAINT FINISH: Powder coated with a zinc rich epoxy primer and a low maintenance powder coating.
Assessment of Di erent Elements and Maintenance Issues:
Choice of Metals:
e proposed design of this sculpture is composed entirely of recycled mild steel propane tanks, with the goal of a zero carbon
footprint. In general, sculptures made of recycled steel are not recommended for accession into permanent collections. is is
because they are o en made of various di erent types of steel and when used with a di erent welding rod, can lead to galvanic
corrosion and poor performance. ese objects can be very expensive to maintain and o en fail, and it is recommended to
place in a temporary collection category to acknowledge the likely failure of materials.
In this case, the sculpture is formed of the same type of steel throughout, and so the approach is similar to that of a mild steel
based sculpture. It is important to identify the alloy of the steel and the weld rod matched to prevent galvanic corrosion
around the welds.
Preservation-Arts.com Page 3 of 5
Conservation Assessment of Proposed Sculpture ‘Arachnicat’ by Colin Selig for Clover Park, Dublin
Fasteners and Welding:
e welding rod and any fasteners should be matched to the exact grade of metal to prevent galvanic corrosion.
Powder Coating:
Although powder coating is inexpensive, conservators usually do not recommend powder coating as a paint system since it
tends to chalk out (fade) and fail uicker than high performance li uid coatings. A high performance li uid coating (urethane
or uoropolymer) with appropriate zinc based primer will retain its color, be more durable and be easier to inpaint losses and
undertake repairs if necessary.
All li uid coatings should be applied to the speci ed manufacturers thickness to be e ective and dry lm thicknesses should
be measured and noted in the archives in addition to the exact paint system. It is also recommended for the collection to
re uest sprayed out metal coupons of the colors to keep in the archives so that fading of the colors can be monitored, and
original artist intent can be preserved.
Preparation of the Surface During Painting:
All old propane tank paint should be sandblasted o and a zinc rich primer applied. is will ensure even protection for the
steel.
Wear to the Surfaces:
is sculpture is intended to be used as a seat and interact with the public. As such it is likely to develop scratches, chips,
losses and possible vandalism to the surface more uickly than otherwise. Use of a primer that is colored one tone lighter than
the top coat will help disguise losses into the primer layer. Losses through the primer layer and into the metal will begin to
corrode very uickly due to water penetration and it is recommended to have annual maintenance to repair losses to prevent
major issues developing.
Landscaping:
All landscape should be drip system and no sprinklers should be used in the vicinity. Recycled water tends to contain
chlorides that can cause ferrous corrosion very uickly and also mineral deposits that deposit insoluble white salts on the
surface.
Trees and landscaping should be kept away from the surfaces with at least a 24” clearance and hard landscaping directly
around the artwork is recommended.
Access for Maintenance:
e landscaping plan should consider the accessibility for maintenance of the sculpture. A nearby water connection should be
provided and there should be at surfaces all around for placement of ladders to access the top.
Recommendations:
●Identify the alloy of steel used in the propane tanks and use matched welding rod to prevent galvanic corrosion and
overall failure.
●Use of a higher performance li uid coating (urethane or uoropolymer) with a zinc primer rather than powder
coating will give better long term results.
●Use of a primer that is colored one tone lighter than the top coat will help disguise losses into the primer layer.
●SSPC SP6 blasting of all old propane paint prior to primer application.
●Landscaping plan should accommodate maintenance re uirements including nearby water supply and at
hardscaping for placement of ladders.
Preservation-Arts.com Page 4 of 5
Conservation Assessment of Proposed Sculpture ‘Arachnicat’ by Colin Selig for Clover Park, Dublin
Maintenance Budget:
Estimated Basic Annual Maintenance:
Team of 3 people for one 8 hour day, with documentation, materials and travel:
Conservator- 9 hours x $120=$1,080
Conservator- 9 hours x $120=$1,080
Technician- 9 hours x $95=$855
Documentation: $120
Travel: $60
Total : $3,195
*Major repairs will be assessed as they arise and are separate to this. In addition this is based on 2019 agreed labor rates, and
will change/increase each year.
Conclusions:
is sculpture is a little at a disadvantage being formed of recycled materials, however as long as the recommendations above
are followed it should perform as well as a mild steel painted sculpture. It will re uire annual maintenance to keep the
sculpture in good order, and deal with losses before ferrous corrosion (rusting) gets established.
Preservation-Arts.com Page 5 of 5