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4.02 Avalon West Dublin Public Art Installation Agreement and First Amendment to the Agreement for Long Term Encroachment for Landscape Features with Tract 8460, Avalon West Dublin
r DUBLIN CALIFORNIA STAFF REPORT CITY COUNCIL DATE: .Line 6, 2023 TO: Honorable Mayor and City Councilmembers FROM: Linda Smith, City Manager Agenda Item 4.2 SU ELECT : Avalon West Dublin Public Art Installation Agreement and First Amendment to the Agreement for Long Term Encroachment for Landscape Features with Tract 8460, Avalon West Dublin Prepared by: Shaun Chilkotowsky, Heritage & Cultural Arts Manager and Kan Xu, Senior Civil Engineer EXECUTIVE SUMMARY: The City Council will consider approving the Avalon West Dublin Public Art Installation Agreement (Art Agreement). The Art Agreement formalizes the Public Art design, construction, and installation obligations. The City Council will also consider approving the First Amendment to the Agreement for Long Term Encroachment for Landscape Features with Tract 8460, Avalon West Dublin (Amended Encroachment Agreement). The Amended Encroachment Agreement incorporates changes consistent with the Art Agreement and includes property owner responsibility for additional decorative features within the St. Patrick Way street right-of-way. STAFF RECOMMENDATION: Adopt the Resolution Approving the Avalon West Dublin Public Art Installation Agreement and Adopt the Resolution Approving the First Amendment to the Agreement for Long Term Encroachment for Landscape Features with Tract 8460, Avalon West Dublin. FINANCIAL IMPACT: There is no impact on the General Fund to prepare and approve the agreements. The Developer bears all staff time and costs to prepare the agreements. DESCRIPTION: Background At its May 1, 2018 meeting, the City Council adopted Resolution Numbers 40-18 and 41-18, authorizing the development of an 8.53-acre site within Downtown Dublin, the construction of the extension of St. Patrick Way from the existing terminus just west of Golden Gate Drive to Regional Page 1 of 3 33 Street, and the construction of a 499-unit residential building with related site improvements. Avalon West Dublin, L.P. is the owner and developer (Developer) of the Avalon West Dublin project (formerly St. Patrick Way Residential Project), which is a 499-unit residential project within the Downtown Dublin Specific Plan Transit -Oriented District. Public Art Installation Agreement On January 10, 2023, the City Council unanimously approved the proposed artwork by Avalon West Dublin and artist Norie Sato. An Avalon West Dublin development tentative map condition of approval was established to ensure that the requirements of the Public Art Ordinance are met. Private developments that install public art on -site are required to enter into a Public Art Installation Agreement (Art Agreement, Attachment 2) with the City. The Art Agreement will ensure the art is installed as proposed and the Developer is familiar with the maintenance requirements that must be conducted for the life of the art. The Art Agreement also details the public art obligation. For this project, the total obligation is $691,008. The Art Agreement establishes an agreed -upon scope of services and schedule for completion of the public art. The City and Developer desire to have all artworks completed and installed prior to occupancy. Should the artwork not be done before occupancy, the Developer will be required to obtain faithful performance and labor and materials bonds to ensure the artwork is completed as proposed. Installation of the artwork is currently planned to coincide with completion of building construction. Agreement for Lona Term Encroachment for Landscape Features On October 19, 2021, the City Council adopted Resolution No. 121-21 approving the Agreement for Long Term Encroachment for Landscape Features with Tract 8460, Avalon West Dublin (Encroachment Agreement, Attachment 5), which provides for the property owner to maintain project -related landscape and decorative features within the public street right-of-way of St. Patrick Way, including all frontage landscape plantings, street trees, irrigation, sidewalks, stormwater treatment areas, seat walls, and decorative/stamped pavement. The City and Developer have agreed to amend the Encroachment Agreement to include maintenance of artwork along the St. Patrick Way project frontage. The Amended Encroachment Agreement (Attachment 4) also includes property owner maintenance of various additional decorative features that were not included in the Encroachment Agreement. STRATEGIC PLAN INITIATIVE: None. NOTICING REQUIREMENTS/PUBLIC OUTREACH: The City Council Agenda was posted. Page 2 of 3 34 ATTACHMENTS: 1) Resolution Approving the Avalon West Dublin Public Art Installation Agreement 2) Exhibit A to the Resolution - Avalon West Dublin Public Art Installation Agreement 3) Resolution Approving the First Amendment to the Agreement for Long Term Encroachment for Landscape Features with Tract 8460, Avalon West Dublin 4) Exhibit A to the Resolution - First Amendment to the Agreement for Long Term Encroachment for Landscape Features with Tract 8460, Avalon West Dublin 5) Agreement for Long Term Encroachment for Landscape Features with Tract 8460, Avalon West Dublin Page 3 of 3 35 Attachment I RESOLUTION NO. XX — 23 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING THE AVALON WEST DUBLIN PUBLIC ART INSTALLATION AGREEMENT WHEREAS, Avalon West Dublin, L.P., a Delaware Limited Partnership ("Developer"), is developing an 8.53-acre site within Downtown Dublin that includes the construction of a 499-unit residential building; and WHEREAS, Developer is required under Dublin's Public Art Ordinance, Municipal Code section 8.58.060(A) to install Council -approved public art; and WHEREAS, on January 11, 2023, City Council approved Developer's proposed public artwork by artist Norie Sato; and WHEREAS, Developer has entered into a contract with artist Norie Sato to complete the approved artwork; and WHEREAS, Dublin's Public Art Ordinance, Municipal Code section 8.58.070(D) requires that Developer execute an agreement with the City prior to occupancy of the first structure in the project, which sets forth the ownership, maintenance responsibilities, and insurance coverage for the public artwork; and WHEREAS, the City of Dublin and the Developer desire to enter into an agreement for the installation, ownership, and maintenance of City Council approved public art. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the Avalon West Dublin Public Art Installation Agreement, attached hereto as Exhibit A to this Resolution. BE IT FURTHER RESOLVED that the City Manager, or designee, is authorized to execute Exhibit A and make any necessary, non -substantive changes to Exhibit A to carry out the intent of this Resolution. {Signatures on the following page} Reso. No. XX-23, Item X.X, Adopted 06/06/2023 Page 1 of 2 36 PASSED, APPROVED AND ADOPTED this 6th day of June 2023, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk Reso. No. XX-23, Item X.X, Adopted 06/06/2023 Page 2 of 2 37 Attachment 2 PUBLIC ART INSTALLATION AGREEMENT This PUBLIC ART INSTALLATION AGREEMENT ("Agreement") is dated as of June 6, 2023 ("Effective Date"), and is entered into between the CITY OF DUBLIN, a California municipal corporation ("City"), and Avalon West Dublin, L.P., a Delaware Limited Partnership ("Developer"). City and Developer may be referred to individually as a "Party" or collectively as the "Parties." City and Developer enter into this Agreement with reference to the following recitals of fact (each, a "Recital"): RECITALS A. Developer is the owner of property in the City of Dublin ("City") generally located South of St. Patrick's Way, West of Golden Gate Drive, East of Regional Street, and known as Avalon West Dublin, 7688 Saint Patrick Way (APN 941-2855-001) ("Project"). B. City is the owner of property located immediately north of the Project that includes a portion of the land included in the extension of Saint Patrick Way. The extension of Saint Patrick Way is being constructed by Developer on behalf of the City. This extension includes a seat wall, which is the site of a proposed public art piece that has also been proposed by the Developer. Pursuant to the Artist Agreement discussed in Recital D below, Developer will cause the installation of a public art project on the City -owned property, which will be solely owned and maintained by Developer in accordance with the provisions outlined in the Agreement for Long Term Encroachment for Landscape Features with Tract 8460, Avalon West Dublin (County Recorder No. 2021371212) and the First Amendment thereto (Recorder No. [INSERT RECORDING NUMBER FOR FIRST AMENDMENT TO ENCROACHMENT) (the Agreement for Long Term Encroachment and the First Amendment thereto are collectively referred to as "Long Term Encroachment Agreement"). C. On May 1, 2018, the City Council approved Resolution No. 40-18, approving Vesting Tentative Map No. 10809 (the "Map") and Site Development Review Permit for the Project. Condition of approval Number 20 (the "Condition") requires Developer (i) to acquire and install a public art project in accordance with Chapter 8.58 of the City Municipal Code valued at a minimum of $691,007.93, (ii) to comply with the Project's public art compliance report submitted by the Developer and on file with the City, and (iii) to, prior to first occupancy, (a) secure completion of the public art project in a manner deemed satisfactory to the City and (b) execute an agreement between the City and Developer that sets forth the ownership, maintenance responsibilities and insurance coverage for the public art project. D. Developer entered into a Public Art Agreement with Norie Sato dba Sato Service LLC ("Artist"), on or around June 6, 2022 ("Artist Agreement"). Under the Artist Agreement, the Artist agreed to design, fabricate and install public art on the property owned by the City. The Artist Agreement contains maintenance provisions, warranties, standards and releases. A copy of the Artist Agreement is attached hereto and incorporated herein by reference as "Exhibit A." 1 38 E. On December 8, 2022, the Heritage and Cultural Arts Commission reviewed the proposed public art project prepared by the Developer ("Public Art") and recommended approval of the Public Art to the City Council. The Public Art consists of a series of curved, perforated, painted metal panels with decorative light fixtures spanning nearly 400 feet adjacent to St. Patrick's Way. The Public Art will be installed in the locations set forth on "Exhibit B," which is attached hereto and incorporated herein by reference. F. The Parties desire to enter into this Agreement to memorialize the City's approval of the Public Art and outline the terms and conditions of Developer's installation of the Public Art. G. Concurrently with the execution of this Agreement, the Parties are entering into that certain First Amendment to Long Term Encroachment Agreement that sets forth certain ownership and maintenance obligations regarding the Public Art. NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION AND THE PROMISES AND COVENANTS OF CITY AND DEVELOPER SET FORTH IN THIS AGREEMENT, CITY AND DEVELOPER AGREE, AS FOLLOWS: TERMS AND CONDITIONS 1. PUBLIC ART INSTALLATION AND OWNERSHIP 1.1 Installation and City Manager Determination. Developer shall cause the Public Art to be installed on the Property at the locations set forth on Exhibit B. Developer is solely responsible for ensuring that installation of the Public Art complies with the Visual Artists Rights Act of 1990 ("VARA") and the California Artists Preservation Act ("CAPA") to the extent applicable and Developer is solely responsible for obtaining any necessary waivers, releases or permission from the artist pursuant to the aforementioned statutes prior to installation. In addition, Developer is responsible for obtaining, prior to installation, all necessary waivers, releases and permission from the artist pursuant to the aforementioned statutes to permit the City to remove or relocate the Public Art in the event that the Public Art conflicts with future improvements or future plans proposed by the City prior to installation. Within ten (10) working days of notice of the installation, the City Manager, or his designee, shall determine if the Public Art has been completed in a satisfactory manner, which determination shall not be unreasonably withheld, conditioned or delayed and shall be made if in the determination of the City Manager, the Public Art is in compliance with the Site Development Review Permit Condition, Long Term Encroachment Agreement, and Artist Agreement. If the City Manager determines that the Public Art is not in compliance with the aforementioned approvals, the City Manager shall provide written notice to Charlie Koch, Development Manager at AvalonBay Communities (charlie_koch@avalonbay.com), specifying the corrective work needed for compliance within this ten (10) day period. In the event that corrective work is required to bring the Public Art into compliance, Developer will notify the City upon completion of the corrective work, and the City Manager will again be permitted ten (10) days to inspect the work as provided in this paragraph. If the City Manager reasonably determines that additional time is needed in order to evaluate whether the Public Art is in compliance with aforementioned approvals, the City Manager will 2 39 provide written notice to the Developer within the ten (10) day period advising of the need for additional time and provide the factual basis to support the need for the additional time. 1.2 Ownership and Developer's Maintenance. Following the City's approval or deemed approval, as set forth in Section 1.1 above, Developer shall accept the Public Art from the Artist. Thereafter, Developer shall own the Public Art and shall maintain the Public Art in accordance with the requirements of the Long Term Encroachment Agreement. 1.3 Security. If the installation of the Public Art will not take place prior to occupancy of the Project, Developer shall furnish City with the following security in a form satisfactory to the City Attorney for the installation of Public Art. (a) Faithful Performance. Either a cash deposit, a corporate surety bond issued by a company duly and legally licensed to conduct a general surety business in the State of California, or an irrevocable instrument of credit in favor of and payable to the City equivalent to one hundred percent (100%) of the estimate set forth in Exhibit C and sufficient to assure City that the Public Art will be satisfactorily installed. Any bond or instrument of credit shall be subject to approval as to form by the City Attorney, which such approval shall not be unreasonably withheld, delayed, conditioned or denied. (b) Labor and Materials. Either a cash deposit, a corporate surety bond issued by a company duly and legally licensed to conduct a general surety business in the State of California, or an irrevocable instrument of credit in favor of and payable to the City equivalent to one -hundred percent (100%) of the estimate set forth in Exhibit C and sufficient to assure City that persons furnishing labor, materials, or equipment shall be paid therefore. Any bond or instrument of credit shall be subject to approval as to form by the City Attorney, which such approval shall not be unreasonably withheld, delayed, conditioned or denied. (c) City shall be the sole indemnitee named on any security required by this Agreement. (d) Within ten (10) calendar days of notice of the installation, the City Manager, or his/her designee, shall determine if the Public Art has been completed and installed in a satisfactory manner, which determination shall not be unreasonably withheld, conditioned or delayed and shall be made if, in the determination of the City Manager, the Public Art is in substantial compliance with this Agreement, and the applicable Artist Agreements, as applicable. The security set forth in this Section 1.2 shall be released upon such determination. If such determination cannot be made, the City Manager shall provide written notice pursuant to Section 2.2 specifying the corrective work needed for compliance within this ten (10) day time period. In the event that corrective work is required to bring the Public Art into compliance, Developer will notify the City upon completion of the corrective work, and the City Manager will again be permitted ten (10) days to inspect the work as provided in this paragraph. 1.4 Insurance and Indemnification. (a) Throughout the fabrication and installation of the Public Art as contemplated by this Agreement, Developer and Artist are required to secure and maintain commercial general liability and automobile liability policies covering personal injury or 3 40 property damage associated with the Public Art and fabrication and installation thereof, such insurance shall include a combined single limit policy of liability insurance not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) in the aggregate insurance during the fabrication and installation phases of the Public Art as set forth further in the Artist Agreement. (b) All Policy Requirements. Developer shall provide City with verification of the required insurance under the Artist Agreement. All insurance policies contemplated by this Section shall be placed with insurers with a Bests' rating of no less than A:VII and shall name the City and its officers, officials, employees and volunteers as an additional insured on all such policies. Endorsements must state that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance or self-insurance maintained by the City shall be called upon to contribute to a loss under the coverage. Any failure of Developer to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers. Developer shall notify City within 14 days of notification from Developer's insurer if such coverage is suspended, voided or reduced in coverage or in limits. In the event that any policy contemplated in this Section includes a self -insured retention payment of which is limited to the named insured, such policy will be modified by special endorsement to allow for payment of the self -insured retention by additional insureds. (c) Indemnification. Developer shall hold harmless, indemnify and, at the City's request, defend City (with counsel reasonably acceptable to City), its officers, employees, authorized agents, boards and commissions, whether elected or appointed, from and against all third party claims, demands, actions, causes of action, losses, damages, liabilities, costs and expenses, including but not limited to reasonable attorney's fees or obligations, for or in connection with any claim that the Artist's rights under VARA or CAPA have been violated, as well as in connection with any claim related to personal injury (including, but not limited to, death) or damage to property (both real and personal) to the extent arising out of or connected with the negligent act, error or omission of Developer, its agents, contractors, subcontractors, or employees in connection with the performance of this Agreement. The foregoing hold harmless statement of Developer shall apply to all damages and claims for damages of every kind suffered or alleged to have been suffered by reason of the activities undertaken pursuant to this Agreement, regardless of whether or not City has approved the plans or specifications for the Public Art and regardless of whether or not insurance policies have been determined to be applicable to any such damages or claims for damages. 1.5 Satisfaction of the Condition. City agrees that compliance with this Agreement and the Long Term Encroachment Agreement shall fully satisfy the Condition. Provided Developer is in substantial compliance with this Agreement and the Long Term Encroachment Agreement and has otherwise fulfilled any non -Public Art -related requirements, the City may not withhold issuance of Project building permits and/or certificates of occupancy, including but not limited to the first certificate of occupancy for the Project, based on the Condition. 4 41 2. GENERAL PROVISIONS 2.1 Incorporation of Recitals. The Recitals set forth above are true and correct and incorporated into this Agreement by reference. 2.2 Notices, Demands and Communications Between the Parties. 2.2.1 Delivery. Any and all notices submitted by any Party to another Party pursuant to or as required by this Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, nationally recognized overnight (one business day) courier (i.e., United Parcel Service, Federal Express, etc.) or by registered or certified United States mail, postage prepaid, return receipt requested, to the address of the recipient Party, as designated in this Section. Notices may be sent in the same manner to such other addresses as the Parties may from time to time designate by notice in accordance with this Section. Notice shall be deemed received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, one business day after delivery to a nationally recognized overnight carrier or two (2) calendar days after it is placed in the United States mail in accordance with this Section 2.2.1. Any attorney representing a Party may give any notice on behalf of such Party. 2.2.2 Addresses. The notice addresses for the Parties, as of the Effective Date, are as follows: To Developer: Avalon West Dublin, L.P. 455 Market St., Suite 1650 San Francisco, CA 94105 Attn: Charlie Koch Via email: Charlie_Koch@avalonbay.com To City: City of Dublin 100 Civic Plaza Dublin, CA 94568 Attn: City Manager With a copy to: Meyers Nave 555 12th Street, Suite 1500 Oakland, CA 94607 Attn: City Attorney To Artist: 5 42 Norie Sato dba Sato Service LLC 1045 NE 88th St. Seattle, WA 98115 Via email: satoservice@seanet.com / 206-235-4287 2.3 Relationship of Parties. The Parties each intend and agree that City and Developer are independent contracting entities and do not intend by this Agreement to create any partnership, joint venture, or similar business arrangement, relationship or association between them. 2.4 Legal Actions. Either Party may institute legal action, at law or in equity, to enforce or interpret the rights or obligations of the Parties under this Agreement or recover damages. 2.5 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties set forth in this Agreement are cumulative and the exercise by a Party of one or more of such rights or remedies shall not preclude the exercise by such Party, at the same or different times, of any other rights or remedies for the same default or the same rights or remedies for any other default by the other Party or Parties. 2.6 Principles of Interpretation. A word, term or phrase defined in the singular in this Agreement may be used in the plural, and vice versa, all in accordance with ordinary principles of English grammar, which shall govern all language in this Agreement. The words "include" and "including" in this Agreement shall be construed to be followed by the words: "without limitation." Each collective noun in this Agreement shall be interpreted as if followed by the words "(or any part of it)," except where the context clearly requires otherwise. Every reference to any document, including this Agreement, refers to such document, as modified from time to time (excepting any modification that violates this Agreement), and includes all exhibits, schedules, addenda and riders to such document. The word "or" in this Agreement includes the word "and." Every reference to a law, statute, regulation, order, form or similar governmental requirement refers to each such requirement as amended, modified, renumbered, superseded or succeeded, from time to time. 2.7 Governing Law. The procedural and substantive laws of California shall govern the interpretation and enforcement of this Agreement, without application of conflicts or choice of laws principles. The Parties acknowledge and agree that this Agreement is entered into, is to be fully performed in and relates to real property located in the County of Alameda, State of California. All legal actions arising from this Agreement shall be filed in the Superior Court of California in and for the County of Alameda or in the United States District Court with jurisdiction in the County. 2.8 No Third -Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any person or entity other than the Parties and their respective permitted successors and assigns, nor is anything in this Agreement intended to relieve or discharge any obligation of any third person to any Party or give any third person any right of subrogation or action over or against any Party. 6 43 2.9 Time Declared to be of the Essence. As to the performance of any obligation under this Agreement of which time is a component, the performance of such obligation within the time specified is of the essence. 2.10 Legal Costs. In the event that a Party brings an action to enforce this Agreement or otherwise arising out of this Agreement, the prevailing Party in such action shall be entitled to recover from the other Party its Legal Costs (which shall be defined to include all reasonable costs and expenses such Party incurs in any legal proceeding, or other matter for which such Party is entitled to be reimbursed for its Legal Costs, including reasonable attorneys' fees, court costs and expenses and consultant and expert witness fees and expenses). 2.11 Entire Agreement. This Agreement integrates all of the terms and conditions mentioned in this Agreement or incidental to this Agreement, and supersedes all negotiations or previous agreements between the Parties with respect to all or any portion of the Public Art. 2.12 Waivers and Amendments. All waivers of the provisions of this Agreement and all amendments to this Agreement must be in writing and signed by the appropriate authorities of the Parties. Failure to insist on any one occasion upon strict compliance with any term, covenant, condition, restriction or agreement contained in this Agreement shall not be deemed a waiver of such term, covenant, condition, restriction or agreement, nor shall any waiver or relinquishment of any rights or powers under this Agreement, at any one time or more times, be deemed a waiver or relinquishment of such right or power at any other time or times. 2.13 Assignment. With the City's written consent, which will not be unreasonably withheld or delayed, Developer may assign the rights, interests and obligations of Developer arising under this Agreement to a homeowners' association formed for the Project or to a successor in interest or assignee of Developer at which point Developer shall have no further liability hereunder. Developer shall notify the City in writing of the assignment at least thirty (30) calendar days following completion of the assignment. 2.14 Successors and Assigns. All references to the Developer in this Agreement shall be deemed to refer to and include Avalon West Dublin L.P., a Delaware Limited Partnership, and all successors and assigns to Avalon West Dublin L.P., a Delaware Limited Partnership. 2.15 Survival of Agreement. All of the provisions of this Agreement shall be applicable to any dispute between the Parties arising from this Agreement, whether prior to or following expiration or termination of this Agreement, until any such dispute is finally and completely resolved between the Parties, either by written settlement, entry of a non -appealable judgment or expiration of all applicable statutory limitations periods and all terms and conditions of this Agreement relating to dispute resolution and limitations on damages or remedies shall survive any expiration or termination of this Agreement. 2.16 Counterparts. This Assignment may be executed in one or more counterparts. All counterparts so executed shall constitute one agreement, binding on all Parties, even though all Parties are not signatory to the same counterpart. The Parties agree to accept signed copies of this Agreement transmitted by electronic facsimile copies as original documents. The Parties acknowledge that copies of this Assignment may be transmitted by a Party over the Internet and 7 44 printed by the recipient and that the printed document may contain different type styles and type sizes, different pagination and different formatting that the original copy of the Assignment in the possession of the Party sending the Assignment. The Parties agree that any such copies of this Assignment shall be accepted by the Parties as true and correct originals of the Assignment so long as the actual text of the Assignment remains the same. This Agreement constitutes the entire understanding and Agreement of the Parties regarding the subject matter of this Agreement. IN WITNESS WHEREOF, the Parties have signed this Agreement by and through the signatures of their respective authorized representative(s) as follow: CITY: CITY OF DUBLIN, a California municipal corporation By: Name: Linda Smith Title: City Manager ATTEST: By: Name: Marsha Moore Title: City Clerk APPROVED AS TO FORM: By: Name: John Bakker Title: City Attorney DEVELOPER: Avalon West Dublin L.P., a Delaware Limited Party, aroly i r, DocuSigned by: By: t, .iVstithrt-r 2ED2428F56DA44F... Name: Joe Kirchofer Title: Senior Vice President - Development 8 45 EXHIBIT A Artist Agreement 46 ARTWORK COMMISSION AGREEMENT This Artwork Commission Agreement ("Agreement") is entered into as of June 6, 2022 (the "Effective Date") by and between AvalonBay Communities, Inc. ("Client") and Norie Sato dba Sato Service LLC ("Artist"). Client and Artist are, each, a "Party" and, collectively, the "Parties." WHEREAS, Client is building a 499-unit apartment building located at 7688 Saint Patrick Way, in Dublin, CA and associated improvements to the public street Saint Patrick Way; and WHEREAS Artist has been commissioned by Client to create a site -specific sculptural work called " ACROSSROADACROSS" ("Artwork"), NOW, THEREFORE, in consideration of good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and incorporating the foregoing recitals, the Parties hereby agree as follows: 1. SCOPE OF SERVICES (a) Artist's Obligations. Subject to the terms and conditions of this Agreement, Artist shall: (i) perform all services and furnish all supplies, material labor and/or equipment as necessary for the design and fabrication of the Artwork at the Site, as defined in Artist's Design Proposal attached hereto as Exhibit A (the "Proposal"), in accordance with the specified schedule. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement; (ii) determine Artistic expression, design, dimensions and materials of the Artwork, subject to review and acceptance by Client as set forth in this Agreement. To ensure that the Artwork as installed shall not interfere with the intended use of the Site, pedestrian and other traffic flow, parking, and safety devices and procedures at the Site, Artist's proposal shall be reviewed and approved by Client or applicable city departments, and where appropriate, the project architect to ensure compliance with these objectives; (iii) prepare the design concept in corresponding accordance with the budget, approved by Client ("Budget") attached as Exhibit B and made a part hereof. The design concept shall include a description of all materials and products utilized in the Artwork and the required routine care and upkeep involved; (iv) attend in person or by phone design and construction coordination meetings with Client, general contractor, architect and other parties, as appropriate, to communicate about the Artwork and to ensure appropriate integration and/or installation of the Artwork; 1 47 (v) coordinate with Client's architect, engineers, other consultants, contractors, and subcontractors (collectively, "Client's Consultants") and provide sufficient information and detail to Clent's Consultants in order to confirm that the design and development of the Artwork meets the standards provided for in applicable codes, laws and regulations (the "Structural Specifications"). Artist shall be responsible for coordinating their design to the site's existing conditions and to the landscape, civil, electrical, and joint trench designs that will be built at the site of the artwork. Should any modifications to these landscape, civil, electrical, or joint trench designs be required to accommodate the artwork, the artist shall request these modifications in as timely a manner as possible; (vi) complete the fabrication of the Artwork by the scheduled installation date as provided in Exhibit C attached hereto and made a part herof, (vii) arrange the transportation and installation of the Artwork in consultation with Client by the estimated completion date of _11/15/2023 (the "Final Completion Date"), or such date as the Parties may agree upon in writing. Notwithstanding the foregoing, however, in the event of a Force Majeure (as defined in Section 7(b) below), the Final Completion Date shall be extended for an additional period equal to the amount of delay caused by such event of Force Majeure. If Artist does not install the Artwork himself or herself, Artist shall supervise and approve the installation; (viii) provide required insurance in amounts and limits specified in Section 16 and Exhibit D: (ix) provide Client with a list of all subcontractors, if any, along with a copy of the agreement between Artist and each subcontractor; (x) provide a maintenance manual with a description of all materials and products utilized in the Artwork and the required care and upkeep involved; and (xi) provide photographic documentation of the Artwork in development. (xii) Lights to be installed in artwork by Artist; and lights, timer, and controller are included in Artist budget. Artist agrees to ensure that the budget for additional electrical needs to be handle by MCH Electric and payed separately by AvalonBay does not exceed $35,000. (b) Client's Obligations Subject to the terms and conditions of this Agreement, Client shall: (i) be responsible for providing Artist, at no expense to Artist, copies of existing designs, drawings, reports, and other existing relevant data, if any, in Client's possession, which is needed by Artist in order to perform; (ii) appoint an individual employee or consultant of AvalonBay to serve as its representative with regard to the design and installation of the Artwork. Such individual's 2 48 role shall include, at a minimum, the communication of AvalonBay's design aesthetic to Artist, so as to avoid conflicting viewpoints and instructions. (iii) coordinate any necessary site preparation with Artist, including before the building is completed, so as to minimize site preparation costs to Artist as possible. Should artwork installation take place after completion of the Project, AvalonBay agrees to provide access to the installation site. Should Artist be informed of or discover unforeseen site conditions that were not previously known that result in the need for design changes that result in additional costs, such changes shall be subject to discussion and approval. (iv) be responsible for the excavation and installation of the seatwall; (v) be responsible for cost of artwork conduit & junction boxes, electrical wires, pulling of wires, and attaching wires to artwork lights, timer, and controller in building's equpment room that will not exceed $35,000 and will installed by MCH Electric. (vi) secure any and all required licenses, permits and similar legal authorizations at Artist's expense as may be necessary for the installation and maintenance of the Artwork at the Site. (c) Cooperation. Subject to the terms and conditions set forth in this Agreement, Artist and Client together shall cooperate and exchange such information as is reasonably required to coordinate work on the specific details of the installation of the Artwork. 2. DESIGN (a) Approval. Prior to execution of this Agreement, Client has had the opportunity to notify Artist if it requires any revisions to the Artwork design (the "Design") in order to comply with any applicable laws, ordinances and/or regulations or for other reasons including, but not limited to, ensuring the physical integrity of the Artwork or its installation at the Site. If such notification has been delivered, Artist shall use best efforts to incorporate such revisions as part of the Design. (b) Final/Construction Documents. (i) Artist will provide structural engineering drawings, as needed, prepared by a qualified engineer, licensed by the state and paid by Artist, certifying that the Artwork will be of adequate structural integrity and Artist shall provide Client with such certification. (ii) Where appropriate, as determined by Client, Artist shall present the Design to a qualified conservator, who will make recommendations on the maintenance of the Artwork, and Artist shall provide a written copy of the conservator's recommendations to Client. 3. CHANGES TO THE DESIGN 3 49 (a) Artist Revisions. Prior to the execution of any change in the approved Design, Artist shall present proposed changes in writing to Client for further review and approval. Artist must provide a detailed description of any significant changes in Artistic expression, design, dimensions and materials of the Artwork that is not permitted by nor in substantial conformity with the already approved Design or any change that affects the Budget. Such notice will also include a detailed description of any additional costs that may be incurred or changes in the Budget. A significant change is any change that materially affects installation, scheduling, Site preparation or maintenance of the Artwork or the concept of the Artwork as represented in the Design or is visible to the general public. (b) Approval. If Client approves the changes, Client shall promptly notify Artist in writing. If Client disapproves of the changes, Client shall promptly notify Artist in writing and Artist shall continue to fabricate the Artwork in substantial conformity with the Design. Should the Artist requested changes be caused by a site condition that was unknown at the time of this proposal and/or is subsequently brought to Artist's attention by AvalonBay or its contractors, should AvalonBay disapprove the changes requested by Artist, AvalonBay shall bear legal and financial liability for any matters arising from its disapproval of the requested changes. 4. FABRICATION STAGE (a) Conformity to Design. Artist shall fabricate and install the Artwork in substantial conformity with the Design. Artist may not deviate from the approved Design without written approval of Client. (b) Protection of Artwork. Artist shall take reasonable measures to protect or preserve the integrity of the Artwork such as the application of protective or anti -graffiti coatings, if applicable, unless Client disapproves. If the Artwork is being constructed on -site, Artist shall avoid creating nuisance conditions arising out of Artist's operations. Prior to requesting authorization to transport and install the Artwork, Artist shall be required to provide Client with a list of all workers or subcontractors and equipment to be used along with the hours of operation and the scope of work to be performed on site. All additional workers or subcontractors must provide proof of insurance prior to entering the Site. (c) Client Review. Client shall have the right to review the Artwork at reasonable times during the fabrication, upon reasonable notice. If Client, upon review of the Artwork, determines that the Artwork does not conform to the Design or a revised and approved Design, Client reserves the right to notify Artist in writing of the deficiencies and that Client intends to withhold the next budget installment. If Artist disputes Client's determination that the Artwork does not conform, Artist shall promptly submit reasons in writing to Client within seven (7) days of Client's prior notification to the contrary. Client shall make reasonable efforts to resolve the dispute with Artist in good faith. (d) Artist Cure. In the event that Artist does not dispute Client's determination that the Artwork does not conform, Artist will promptly cure Client's objections and will notify Client in writing of completion of the cure. Client shall promptly review the Artwork, and upon approval 4 50 shall release the next budget installment. Nothing in this Section 4 is intended to abrogate the dispute resolution terms of Section 26, below. (e) Notice of Completion. Artist shall notify Client in writing when fabrication of the Artwork has been completed, and that the Artwork is ready for delivery and installation at the Site if the Artwork was fabricated off -site. (f) Inspection and Approval. Client shall inspect the Artwork within five (5) days after receiving notification pursuant to paragraph (e), prior to installation, to determine that the Artwork conforms with the Design and to give final approval of the Artwork. Client shall not unreasonably withhold final approval of the fabricated Artwork. In the event that Client does withhold final approval, Client shall submit the reasons for such disapproval in writing within five (5) days of examining the fabricated Artwork. Artist shall then have ten (10) days from the date of Client's notice of the disapproval to either dispute the basis for disapproval in writing or make the necessary adjustments to the fabricated Artwork in accordance with such writing, unless such adjustments require longer than ten days, in which case Artist will begin to make the adjustments within ten days. Artist shall then be held responsible for any expenses incurred in correcting such deviation. (g) Installation Delays. Client shall promptly notify Artist of any delays impacting installation of the Artwork. Any additional storage fees incurred as a result of such delays are the responsibility of Client. (h) Site Inspection. Artist shall be required to inspect the Site prior to the transportation and installation of the Artwork and shall notify Client of any adverse Site conditions readily apparent to Artist that will impact the installation of the Artwork. 5. FINAL ACCEPTANCE. Client shall inspect the installation of the Artwork within five (5) days after receiving notification that installation of the approved Artwork has been completed, to determine that the installation conforms with the Design and specifications. Client shall not unreasonably withhold final approval of the installation. Client's final approval of the installation shall constitute "Final Acceptance" of the Project. 6. COST AND PAYMENT (a) Total Artwork Payment The total payment due to Artist for the Artwork and all work to be performed under this Agreement is an amount equal to $610,000 ( the "Total Artwork Payment"). (b) Budget and Milestone Payments (i) The Artwork shall be completed in separately defined, successive stages (the "Phases.") (ii) A schedule of milestones in the design, fabrication, and installation Phases of the Artwork is set forth on Exhibit C (the "Milestones"). 5 51 (iii) The initial Budget, set forth in Exhibit B, sets forth the direct costs of fabricating, transporting, and installing the Artwork. The Budget may be amended from time to time, in writing and signed by both Parties, to reflect updated, agreed -upon costs. (c) Payment Terms and Schedule (i) The Total Artwork Payment shall be earned and paid in installments upon the achievement of the Milestones, pursuant to the terms in Exhibit C. Artist shall provide Client two (2) weeks' notice and submit an invoice before the expected completion of any Milestone so that Client is prepared to make the associated payment within thirty (30) days of receipt of the invoice. (ii) Artist shall notify Client of the tentative schedule for the fabrication and installation of the Artwork, including a schedule for the submission of progress reports and inspections if any. The Schedule may be amended by written agreement. (iii) Client acknowledges that successive Phases are dependent upon prompt Milestone payments. Artist is not be responsible for delays caused by Client's failure to make payment when due. (e) Taxes. Any state or federal sales, use or excise taxes, or similar charges relating to the services and materials under this Agreement shall be paid by Artist in a timely fashion. 7. TIME OF PERFORMANCE. Time is of the essence in this Agreement. Artist shall dedicate such time and effort as is necessary to fulfill Artist's obligations to completely finish and install the Artwork to the satisfaction of Client within the timelines set forth in Exhibit C. except as the Artwork may be delayed by circumstances described in Sections 6(c) or 7(b). 8. TERM (a) Duration. This Agreement shall be effective on Effective Date and, unless terminated earlier pursuant to such provisions in the Agreement, shall extend until Final Acceptance, or submission of final payment to Artist by Client under Exhibit C, whichever is later. Extension of time of performance hereunder may be granted upon the request of one Party and the consent of the other thereto, which consent shall not be unreasonably withheld. Such extension shall be in writing, signed by both Parties, and attached to the schedule under provided in Exhibit C. (b) Force Majeure. Client shall grant to Artist a reasonable extension of time in the event that conditions beyond Artist's control render timely performance of Artist's services impossible or unduly burdensome ("Force Majeure"). All such performance obligations shall be suspended for the duration of the condition. Both Parties shall take all reasonable steps during the existence of the condition to assure performance of their contractual obligations when the condition no longer exists. Failure to fulfill contractual obligations due to conditions beyond either Party's reasonable control will not be considered a breach of contract, provided that such obligations shall be suspended only for the duration of such conditions. 6 52 9. TERMINATION. (a) Termination for Convenience. Client shall have the right to terminate this Agreement for any reason at any time by giving ten (10) days' written notice to Artist to stop work. Client shall pay Artist for all Milestone payments owed Artist through the date of termination, as well as (i) all unreimbursed costs incurred by Artist to design, fabricate, or install the Artwork from the completion date of the most recently completed Phase, and (ii) all future costs that Artist cannot reasonably avoid that are reasonably related to performance of Artist's obligations hereunder. (b) Termination for Default. If Artist willfully or negligently fails to fulfill in a timely manner, or otherwise violates any of the covenants, agreements or stipulations material to this Agreement, Client shall thereupon have the right to terminate this Agreement by giving written notice to Artist of its intent to terminate specifying the grounds for termination. Artist shall have twenty (20) days after the effective date of the notice to cure the default, unless the default is not capable of being cured within twenty days, in which case Artist shall commence to cure the default within such time. If it is not timely cured, or the cure is not timely commenced, as applicable, this Agreement shall terminate. (c) Effect of Termination for Artist's Default. (i) If Artist defaults for cause other than death or incapacitation, Artist shall return to Client all funds provided by Client. Artist shall provide an accounting. All finished and unfinished drawings, sketches, photographs and other Artwork products prepared and submitted or prepared for submission by Artist under this Agreement shall be retained by Artist. Artist shall retain the copyright in the Artwork and all rights under Section 13 and Section 14. (ii) Upon notice of termination, Artist and his/her subcontractors shall cease all services affected. 10. DOCUMENTATION OF WORK. At the conclusion of the project Artist shall provide to Client ten (10) high resolution (300 dpi minimum) digital images documenting the processes of Artwork fabrication and installation and, contingent upon such transfer of title to the Artwork in accordance with Section 11, Artist hereby sells, assigns, and transfers to Client the digital images and agrees, on his/her own behalf and on behalf of his/her heirs, legatees and successors in interest, not to assert any interest in the digital images inconsistent with the sale to Client hereunder and after such sale, Client shall be the owner of the digital images. Nothing in this Section 10 is intended to contravene the rights granted, reserved, and licensed in Section 14, below. 11. TRANSFER OF TITLE; RISK OF LOSS (a) Title to the Artwork. Title to the Artwork will transfer to Cleint when (a) Artist has completed and installed the Artwork, and (b) Artist has received full payment under Section 6, above. Artist shall provide Client with a Transfer of Title Contingent upon such transfer of title. Artist hereby sells, assigns, and transfers to Client the Artwork and agrees, on his/her own behalf and on behalf of his/her heirs, legatees and successors in interest, not to assert any interest in the Artwork inconsistent with the sale to Client hereunder and after such sale, Client shall be the owner 7 53 of the Artwork. Risk of damage or loss in connection with the Artwork will transfer to Client when the Artwork is installed. If the Artwork is damaged or destroyed in whole or in part prior to such installation, Artist shall be responsible for restoring or replacing the Artwork and installing the Artwork in accordance with the terms of this Agreement at his sole cost and expense, and Client shall not be required to pay any additional amounts to Artist other than any portion of the Total Artwork Payment not yet paid to Artist pursuant to Section 6 of this Agreement. Notwithstanding the foregoing, Client shall pay all such cost and expense to the extent such damage or destruction arises out of the negligence of Client or Client's contractors and employees, which payments shall be in addition to the Total Artwork Payment set forth in Section 6(a). 12. ARTIST REPRESENTATIONS AND WARRANTIES. (a) Warranties of Title Artist warrants and represents to Client that: (i) Artist holds all rights to the Artwork, free and clear of any liens, encumbrances, licenses, or claims of any nature, and has not made any agreement inconsistent with the commissioning of the Artwork to Client. (ii) The Artwork is unique and original and shall not infringe on any third party's intellectual property rights. (iii) Artist will provide maintenance management manual, schedule and warranties for two (2) years following completion as set forth in subpart (b), below. If unforeseen issues arise (building construction related damage or vandalism) Artist will have an opportunity to provide a proposal to repair the art and submit expenses for reimbursement by Client. (iv) Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement. (v) All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc. and with all necessary care, skill, and diligence. (vi) These representations and warranties shall survive the termination or other extinction of this Agreement. (b) Warranties of Quality and Condition (i) Artist represents and warrants that all work will be performed in accordance with professional "workmanlike" standards and free from defective or inferior materials and workmanship (including any defects consisting of "inherent vice," or qualities that cause or accelerate deterioration of the Artwork) for two years after the date of Final Acceptance by Client under Section 5. 8 54 (ii) Artist represents and warrants that the Artwork and the materials used are not currently known to be harmful to public health and safety. (iii) Artist represents and warrants that reasonable maintenance of the Artwork will not require procedures substantially in excess of those described in the maintenance and preservation recommendations submitted by Artist pursuant to Section 1(a)(xi). (iv) If within two years Client observes any breach of warranty described in this Section 12(b) that is curable by Artist, Artist shall, at the request of Client, cure the breach promptly, satisfactorily and consistent with professional conservation standards, at no expense to Client. Client shall give notice to Artist of such breach with reasonable promptness. (v) If after two years Client observes any breach of warranty described in this Section 12(b) that is curable, Client shall contact Artist to make or supervise repairs or restorations. Artist or Artist's subcontractor shall make or supervise repairs or restorations at Artist's or Artist's subcontractor's then current professional hourly rates and direct expenses or such work, payable by Client.. (vi) Acceptable Standard of Display. Artist represents and warrants that: (a) General routine cleaning and repair of the Artwork and any associated working parts and/or equipment will maintain the Artwork within an acceptable standard of public display. (b) Foreseeable exposure to the elements and general wear and tear will cause the Artwork to experience only minor repairable damages and will not cause the Artwork to fall below an acceptable standard of public display. (c) With general routine cleaning and repair, and within the context of foreseeable exposure to the elements and general wear and tear, the Artwork will not experience irreparable conditions that do not fall within an acceptable standard of public display, including mold, rust, fracturing, staining, chipping, tearing, abrading and peeling. Notwithstanding the foregoing, Artist cannot warranty that paint will withstand accidental or intentional damage, including scratching, scraping, or the like. (d) Manufacturer's Warranties. To the extent the Artwork incorporates products covered by a manufacturer's warranty, Artist shall provide copies of such warranties to Client. 13. RIGHTS OF REPRODUCTION; INTELLECTUAL PROPERTY AND PUBLICITY RIGHTS. (a) Artist shall retain the copyright to the Artwork and the right to claim authorship of the Artwork. Artist warrants that the Artwork is and shall be a limited edition of one. Artist has not and, provided this Agreement is not terminated pursuant to section 9, will not create a reproduction of the Artwork in the same size, medium, and color without the written permission of Client. 9 55 (b) Client shall ensure that Artist's name and copyright date is publicly displayed on, at, or near the Artwork. (c) In furtherance and not in limitation of the foregoing, contingent upon the transfer of title to the Artwork noted in Section 11, above, Artist hereby grants to Client and its successors, agents and representatives a non-exclusive, royalty -free, irrevocable, worldwide license to create (i) photographic, video, or film images of the Artwork and to distribute or use such images in connection with the ownership, management, promotion and marketing of the Project This Section 13 is intended to be an express grant of limited rights of reproduction under California Civil Code Section 982(c). No other rights of reproduction are granted unless set forth herein. In no event may replicas of the Artwork be offered for sale in any manner without separate authorization from Artist and express written agreement between the Parties. (d) Client shall have the right, upon Arist's prior approval which shall not be unreasonably withheld, to use Artist's name, likeness, and biographical information, in connection with the display or reproduction and distribution of the Artwork including all advertising and promotional materials pursuant to section 13(c). Artist shall be reasonably available to attend any inauguration or presentation ceremonies relating to the public dedication of the Artwork. 14. ARTIST'S RIGHTS (a) Artist Credited. Client shall use commercially reasonable efforts to identify Artist as the creator of the Artwork. (b) Right to Repair and/or Alter the Artwork. Client may make or authorize others to repair, refurbish, or otherwise maintain the Artwork, or enter into a further agreement with Artist for such services. Client will not intentionally alter, modify, change, destroy or damage the Artwork without first obtaining permission from the Artist. Notwithstanding the foregoing, If Client reasonably determines that the Artwork presents imminent harm or hazard to the public, other than as a result of Client's failure to maintain the Artwork as required under this Agreement, Client may authorize the removal of the Artwork without the prior approval of the Artist. (c) VARA and CAPA Rights. If any alteration or damage to the Artwork occurs after installation and transfer of title, whether intentional or accidental and whether done by Client or others, without Artist's consent, Artist shall have the right to disclaim authorship of the Artwork in accordance with Visual Artists Rights Act (17 U.S.C. §§ 106A and 113(d) (VARA) and the California Art Preservation Act (Cal. Civil Code §§ 987 and 989) (CAPA), in addition to any remedies the Artist may have in law or equity under this Agreement. (d) Disposal of Artwork. In the event that Client intends to remove or dispose of the Artwork, Client shall make reasonable good faith efforts to notify Artist. Artist shall have sixty (60) calendar days from receipt of such notice to remove the Artwork, at Artist's 10 56 expense. If Artist fails to remove the Artwork within that sixty-day period, Client may dispose of the Artwork by any means, including destruction, in its sole discretion. For the avoidance of doubt, the following activities, alone, shall not constitute disposal or destruction: Relocation, whether temporary or permanent; storage for any length of time; or transfer of possession. (e) Precedence of Agreement. The terms of this section 14 are intended to replace and substitute for the rights of the Artist under VARA, CAPA, or any other local, state, federal or international moral rights laws that protect the integrity of works of art, to the extent that any portion of this Agreement is in direct conflict with those rights. The Parties acknowledge that this Agreement supersedes those laws to the extent that this Agreement is in direct conflict therewith. 15. INDEMNITY (a) By Artist. Artist shall defend, indemnify and hold Client, its members, and its and their members, partners, officers, directors, employees and agents harmless from and against all claims, demands, liabilities, losses, damages and expenses (including but not limited to attorneys' and expert witness fees and costs) (collectively, "Liabilities"), and by whomsoever brought arising out of Artist's breach of this Agreement or the actions or omissions of Artist, Artist's subcontractors and agents, or anyone acting on behalf of Artist pursuant to Artist's performance of this Agreement; provided that the foregoing indemnity does not apply to Liabilities to the extent arising from the negligence or willful misconduct of the Client Indemnitees, their respective subcontractors or agents. The obligations under this Section shall extend to any claim or legal proceeding brought by employees of Artist against Client or other Indemnitees for injury or death while rendering services in connection with this Agreement. Client's review and approval of any documents prepared or furnished by Artist shall not relieve Artist of the foregoing obligations. Artist shall also cause to be released of record any mechanics' or material suppliers' liens encumbering Client's property which arise out of Artist's work or services and shall defend, indemnify and hold harmless Client from any Liabilities arising out of or related to such liens. (b) By Client. Client shall defend, hold harmless and indemnify Artist, his/her agents and employees, and each and every one of them (collectively, the "Artist Indemnitees"), from and against any and all Liabilities of every type and description (i) arising from personal injury or death or damage to personal property that arise out of, pertain to or relate solely to any negligent act or omission, recklessness or willful misconduct of Client, its subcontractors or agents, and their respective officers and employees, in connection with Client's performance under this Agreement; provided that the foregoing indemnity does not apply to liability for damages for death or bodily injury to persons, injury to property, or other loss, damage or expense to the extent arising from the sole negligence or willful misconduct of the Artist Indemnitees; or (ii) arising from or related to Client's breach of this Agreement. (c) Survival: The provisions of this Section 15 shall survive any expiration or termination of this Agreement. (d) Notice. The Indemnified Party shall provide prompt notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will 11 57 assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party's expense. The Indemnified Party at its own expense may hire counsel to participate in the defense of a claim. 16. INSURANCE. Artist shall obtain and maintain, at its expense, with a carrier authorized to do business in California and having a Best's rating of at least A-VIII, the insurance specified on Exhibit D. 17. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, LOST REVENUE, OR LOSS OF BUSINESS, WHICH ARE HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH LOST PROFITS, LOST REVENUE, OR LOSS OF BUSINESS WAS FORESEEABLE OR WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. THE PROVISIONS OF THIS SECTION 16 SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT. 18. NOTICE. Any notices or other communications hereunder may be in writing and will be deemed delivered (a) when personally delivered to the Party to whom directed, (b) five (5) days following deposit in the United States mail, certified mail, return receipt requested, (c) the next business day following the date of deposit with FedEx (or other nationally recognized overnight delivery service) for next day delivery, or (d) by email, and will be effective when receipt is acknowledged, addressed to the Parties at the following addresses, or at addresses later provided by written notice to the other Party in the manner provided in this paragraph: If to Artist: Norie Sato dba Sato Service LLC 1045 NE 88th St. _Seattle, WA 98115 satoservice@,seanet.com / 206 235-4287 If to Client: Either Party may change the contact information in this Section by written notice to the other Party. Artist agrees that notice delivered by Client pursuant to this Section 18 shall constitute a diligent attempt to contact Artist under Section 987 of the California Civil Code. 19. ASSIGNMENT. Client shall have the right to assign all or any part of its rights under this Agreement in its discretion, including but not limited to transferring such rights to a successor owner or tenant of the Project. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties hereto. 12 58 20. EXHIBITS. All exhibits referred to herein are attached hereto and are by this reference incorporated as if set forth fully herein. 21. AMENDMENT. This Agreement, including any Exhibits thereto, may be amended only in writing signed by the Party against whom, or against whose successors and assigns, enforcement of the change is sought. 22. BINDING EFFECT. This Agreement shall be binding on the heirs, executors, administrators, successors and assigns of the Parties. 23. SEVERABILITY. If any term, provision, or application of this Agreement is held invalid or unenforceable, the remainder of this Agreement, and any application of its terms and provisions will not be affected by that invalidity, but will remain valid and enforceable. 24. SOLE AGREEMENT. This Agreement constitutes the sole agreement between Artist and Client respecting the transfer of rights to the Artwork, and correctly sets forth mutual obligations of Artist and Client as of its date. Any agreements or representations respecting the subject matter hereof not expressly set forth in this Agreement are null and void. 25. CHOICE OF LAW AND DISPUTE RESOLUTION. (a) Comply With Laws. Artist, its employees, subcontractors and others acting under Artist's direction or control shall at all times observe and comply with any and all applicable laws, regulations and governmental orders and official interpretations thereof, including, but not limited to, all orders of governmental bodies and agencies relating to the safety of employees or to safety in the performance of the work. Artist shall obtain and maintain all applicable licenses and permits for the conduct of its business and performance of services specified in this Agreement. (b) Arbitration. Any controversy or claim arising out of or related to this Agreement, or the breach thereof, however, characterized, shall be resolved through a binding, non-public arbitration before a single arbitrator selected as provided in this Section. Any Party initiating arbitration shall give written notice to the other Party, which notice shall state with particularity the nature of the dispute and the basis and computation of the demand for relief, making specific reference to the provisions of this Agreement pertaining to the dispute. At the option of Client by notice to Artist, if all or part of the resolution of such dispute would require the participation as a party by a person or entity that is not similarly bound to participate in this arbitration or does not agree to be joined in such arbitration, the provisions of this Section shall not apply to such dispute. The Parties agree to use the services of JAMS/ENDISPUTE ("JAMS") located in San Francisco, California, or a successor or similar dispute resolution service if JAMS is no longer in existence. If the Parties cannot agree upon an arbitrator within fourteen (14) days following the giving of demand for arbitration, either of the Parties shall request that JAMS provide a list of no less than five potential arbitrators. Any potential arbitrators shall be former judges in either the California Superior Court or the Court of Appeals or persons who shall have had at least fifteen (15) years of continuous experience in a business relating to the issue to be resolved in the San Francisco Bay Area and not have been employed by either of the parties to this dispute within the preceding five (5) years. . 13 59 26. INDEPENDENT CONTRACTOR. Artist agrees to perform all Artwork under this Agreement as an independent contractor and not as an agent or employee of Client. Artist acknowledges and agrees that Artist shall not hold himself or herself out as an authorized agent of Client with the power to bind Client in any manner. Artist shall be solely responsible for any withholdings, deductions or payments which may be required in connection with payments he/she receives. Artist shall provide Client with Artist's Tax Identification Number and any proof of such number as requested by Client. 27. COUNTERPARTS. This Agreement may be executed in counterparts with all those counterparts together constituting one original of this Agreement IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written. ARTIST: Date: June 3, 2022 By: Sato Service LLC Name: Norie Sato Title: Artist/Manaaer Date: June 3, 2022 CLIENT: By: AVALONBAY COMMUNITIES, INC., a Maryland rporatio By: 4.7fi, Joe Kirchofer Vice President, Development Date: 6/8/2Z' 14 ACROSS ROADS/il.. 01116. Norie Sato, artist May 2022 revision '4100141 Artist Agreement Exhibit A sak10": • 61 62 res I" .....C.ru`mRyPark IT y,1 :,.5I:Fo0r—IIYhS:hoc1 . Nome arms; HiEL't ie Park ,_- } y Alamo Creek Park 911.01 G Park rswinherly Hills dog Park Dutthn bons tmeh Fa$sajara Qeek Eti1Jes flan' 'aTer kegionalPar Jose Maria A1I2dw y FIrmcmKty.qrhr+nI I m e ralu Gk.!: 1.1;_ict. aCsyetano ��Dubin•easannn Coelta Vit.oresa'e --•r-- Bfr�J,. 18E TTT Four �o;nLsby hemwrrlO�tels S1;erarurr PIe95an9ori F New mdGa ESd38ar T 'wimple I Minimal Ilk IMII. riirpOr; till R As.:. Ili III ..-4" % till li BMX Park 63 The Artwork: 1. A Series of curved anodized aluminum panels laser cut with various patterns create layering, moire pattern movement and shifting views as one moves along the length of the road. Depending on the speed and location, different combinations and legibility of various images emerge, disappear, become abstract, pull into focus. These panels will create the bulk of the screening and a backdrop to the street. The curves soften the effect of the screen, while layering images and allowing interesting juxtapositions between different panels. The panels will be created in collaboration with AZahner Company, a fabricator based in Kansas City, using their ImageLines system of transforming images into perforations. This "standardization" allows for a more cost effective method of producing dynamic and unique image effects. They have a great deal of expertise, capability and options for materials and other fabrication techniques. I have worked with them on other recent projects and feel them uniquely well -suited for this project and complexities. The proposed material is painted aluminum which will be bent and cut as necessary for structure and attachment. The attachment to the concrete seating wall will be mechanical, using stainless steel fasteners, galvanized steel angles, which will allow for strength, permanence, yet replaceability. The height of the screens are 5' X various lengths. When placed on an 18" high seating wall, the height of the screens will be 6'8" above grade. In the proposed layout, approximately 146 panels are included. Some variation in height could be introduced, if final engineering and budget allow. 2. Lighting will be incorporated in 2 ways: A): Cylindrical colums out of the same panel materials and colors with perforated patterns and up lights at bottom B): "Clover Flower" lights are whimsical sculptural interpretations of a clover flower, continuing the thematic connection emanate light from the "petals" placed on a pole and create a counterpoint to the geometry of the screenwall and other lighting. ipppopprirw s * a:•• : w# r li R:• f 7 6,10 umo r •ri ' r r ++! i I I *+* I I i rt 4 • i • gm Jo ma my ilM mom wallop gi r 1• 1 /1r {g1 r i #► r 1 � :M y I. y j ' + •#*# «#fRI'~-. .�t-r'��+- 11 i • i i * 4.i.. JII._ter For more information about the capabilities of this sys- tem, please go to: https://www.azahner.com/labs/imagelines/ # 1 1 %i Ii7',/: .• un LI u"•N.,1 , N . 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'+�$, '..� ,,* ,x.�.. �•�:�~ ii+G�f�iff trri yy�iy�r+q 'IJ+r���+r+ryrikr r���hHrryf ""ri+rjj�rkl. •�+rJiirrviiiir�+frli� r �rirryJ��rirl+riri aver{+r+r+,hi+Arlri,4,1lrr,.,_rrr,rrrirlr ,J+r%r+ +r J ,ffy+�l,Fl14P]*.Irj)V yr! e rr r. rr r'�rrii+fl4'-kr ille4,1/Irr rFr%. 1 fete 11,r i'f+-0f at' ' flf/ f�f ff✓'f fiJW �4 fArf fU�i'Sf xirr r+iye 1prh+rfl ikf o .r.11 fryryf if *Jo iHi4'4 , /rrr,.f+irr rrj/ifi WifiilWHry,+ "rh +*1111.+l��fi# rl. i #, Whr lrr ▪ yV.dhw. AF. -rick rir r r4'-ibirl ri• +,�f�ijc 'rl, r hilr • i� ,�/ jrr rr. /y��fl��"rri,��i�J1 jI�lkyVri�lff. . +,7f. . . . . JI/lihr+Uf/frl `! iy %%/ f/1147067,.. 11�J1 fj���Nf% „„,,„,„.„ i+a °'r+ n, •rq +q Ifq{ f1l7!f{„ ''' -y am • +• '•, Vf S' - • • r, gib, 'rfi�1 riri. 4 ff}JY{+r} l # J1 JGF y� feif 4' fi1J' it *444; , 014��.' .• ' . `- `' iirlr fi Wi'�rfir rr+ir 7i �4 • ' b! hlfi4, WI WI.,irle ih y 0 /94Er ,'��44 k I J 44, ry, • • f "ITf �i ,' 'd4 / f �y, fir {u � '°Dr �n r,� ih �r rrry'�+ ti"- �i�+lhlhri+kill��JflfilF;�iiriJ rihirrF;r+,r+eq`r+oal r+Wriy xi+W �bll f �+fiRfinf�hr+. +,�rr�r err , , aS kr• x +g Y rri, rir+¢rrt4ry r,rr hry,�r;re x,' i' ` ,.i +rr„•R`rrtryr Ortgivrtrr4.44 14 � ` 1{ N +4 IJti y 8 iy, :$1g r'/lfli4r/+1ay�/, b ,�'++`f. ",r,., yw r•',yrn, M'^urr,y -"` 4x Y Y�j� 7F� ,r+� ''+F' 'i{1 Ii irfN•,.n •�rwr u N.rrrJr rr -0f.-'lllr r rr'▪ i vn i.h.. •*4,- r'w-. M-,•,,y.-.l,+rJrl+l,� riyp,r 67,1 kPk`r • • 'r •7•/•' -, �;3"ir,+ry�,N-�r+-r'.N,ryr r+ "'+i �rN+ rry •rffy...;, .� � y�",4 "".r+rrrvr�+h ryryu.r+r+r�, 64 DIAGRAMMATIC OVERVIEW OF THE ARTWORK These drawings show the layout and colors of the panels over the length of the site. These are at the proposed scale owever, some modulation may occur during final design/modulation to create some variation. _ _ __i.._I i h L[l hflji[ 1 ljffl: 1[I Q1WLIll fl[iimiVLI l in r II[T111lL[I Ol] II�DII]!IlT�-� I$IDil l] � �-f IIQID�p ] I I] mill llRllll 1111J Q]➢ ELEVATION VIEW PLAN VIEW (FROM ABOVE) 65 A more detailed view of elements of the art screen showing: Curved panels in a variety of shapes, orientation Color: 5-10 colors of painted aluminum proposed Each panel will be custom perforated in a variety n' +- idea of "threes" 2 Lighting elements: Uplit cylinder and "Clover Flower" lights 66 ZAHNER 1400 E. Ninth Street Kansas City, Missouri 64106 (816)474-8882 0 cv JOB #: JOB NAMF• BY: DATE: 52.00 stacked fasteners say 6" O PRELIMINARY ENGINEERING AND ATTACHMENTS MATERIAL. FINISH: TYPE NOTES: 4' rolled SS angle Note: these angles will b.? g4lianize�' S tit l cone anchors say at 12" oc double returns, stronger Curved panels are maximum 32" long. The vertical edges are bent twice into an "L", creating stable units that could stand more solidly with strenth along the edges. They are attached along the curve with L-shaped elements to the concrete wall with stainless fasteners. 67 1' 6" 5' w im DTA 11 Concrete seat wall (i' wide x 18" tall) Cylindrical columns have uplights inside 68 Tall cylinders (8' +/-) have uplights in the bottom. Colored LEDs are proposed over Flower" Ligh IW" is 69 View from above of a portion of the artwork 70 71 :E:W•.J...::,-...".-*.z2...i.17:, 2--z-- :'.----------7-------'.zz=----. ----..--?:1-.-.---z: - '---..-.74-.':,!;`--. -.---;.„----_--..-.2•2' 5.-z..--..4'.-.1:,- - .--Q.% %—•_:,,-____--.---__'---.--.......--.,...„--...,,,, ;---,z..._.,,....-4.-_-1---.....,.: '''-','---...'"-- - ----'- ---- ---- '--...--.-..---.------,,, -4 ..; . g0 ..c..f 1..4 :L.;* •V, , (II ., . . . '. %. .,. ,1/4 VA 1 ., . . , . . . ''i:... \i, ‘ AN.V7L:,..:1'...t. VV:".•;:-.,.::..:1-; I:. 1 i i A 1 i II 11 11 1 kitt iig:ii \V.' Vr:tILS1 % \ \..'‘4 1 14:'t . Ili t'ol$:::1' Ti %\ cll.'s:, 41-1-!-1-. -m:. 0V-VV,...J. -ts*•.1.1.Wt1-"_'..... 16..t.11., ..,...%. t t t. ... - L. 14 ..; ..1i.,,.%.;t 7,1i . 7.• = ii 1 1,1 \\\.60 . Ilk\ 1 su \\V-t61151. \ /4. 04:1 1....-t.1$44..-N ‘vi• \.V% Valli .. -E 11. - 1. .7. - • • ThP • ". • t 5 5 IA. gl re '5 5 S. 412 41. .°0 .4k .a 14 44 +- I. ... 1. ; • "7.. •••• 54'S% V:5 .• • •• .4 1. 4 %PO 5- 1:01 V.".. 5 15 -;• v. ;; 72 Some possible images for perforation. The curved lines that are planned for interpretation of the images are dynamic and in combination with the curved forms and potential layering will create interesting effects as one moves along the wall. 73 Lighting elements: 2 Types of lighting elements Cylndrical structure made of perforated panels is uplit by an LED bulb at the base. Light will be seen through the per- forations as well as "leaks" of light toward the panels next to them. Approximately 10-13 are included at this point. "Clover Flower" Light Concept Creates a sculptural counterpoint to the geomety of the panels and cylindrical lighting elements. Currently 3 are includ- ed. They are approximately 10-12' off the ground. 7.1.44[,M.al ..4ea4 +m.wa rdidi Ce4,141 be funNUMmuna mho rtrnr W 74 ARTIST AGREEMENT EXHIBIT B BUDGET [To be amended from time to time, in writing and signed by both parties, to reflect updated, agreed -upon costs.] Conceptual Budget as of 5/2022 FINAL DESIGN/Const. Docs Final Design fees $610,000.00 12% $73,200.00 Inc. travel, CAD, engineering FABRICATION Materials and Fabrication: Metal Screenwall, painting, shipping (Zahner) $350,000.00 Lighting elements (DI), uplights, clover $85,900 INSTALLATION Labor/ Equipment/ (not determined WHO) $43,000.00 OTHER Taxes, insurance/other costs $3,000.00 Project Management/oversight $610,000.00 4% $24,400.00 Total $579,500.00 Contingency $610,000.00 5% $30,500.00 Total with contingency $610,000.00 17 75 ARTIST AGREEMENT EXHIBIT C: PROJECT PHASES AND PAYMENT SCHEDULE. Project Phase 1— Initial concept selection, negotiation of Purchase Agreement, Execution of Agreement. Milestone 1: Completion of Phase 1. 15% of Total Artwork Payment Due: $91,500.00 Project Phase 2 — Design refinement phase. Meet with Client, material research, retain structural engineers, and begin structural engineering, initial drafting, illustrations, descriptive statements, clarifications for planning process, administration and project management, finalize paint colors, finalize design, and any other materials required for Project. Estimated completion date: August 30, 2022 Milestone 2: Completion of Phase 2. 15% of Total Artwork Payment Due: $91,500.00 Project Phase 3: Project design and engineering drawings approved, determine scope and timetable for fabrication, specifications and fabrication and installation schedule submission, submission of certificates of insurance acceptable to Buyer, permits approved. Submission of Phase 3 report and approved structural engineering drawings. Estimated Completion Date 10/2022 Milestone 3: Completion of Phase 3. 20% of Total Artwork Payment Due: $122,000.00 Project Phase 4: Fabrication start date to 50% completion: Start 1/2023 Estimated 50% completion date: 4/30/2023 Milestone 4: Completion of Phase 4. 20% of Total Artwork Payment Due: $122,000.00 Project Phase 5: Fabrication complete in shop, ready to ship. Estimated completion date:. 7/15//2023 Milestone 5: Completion of Phase 5. 20% of Total Artwork Payment Due: $122,000.00 Project Phase 6: Transport and Installation. Inspection, delivery of documentation, transfer of title. Installation Start Target Date: 8/15/2023 Installation Finish Target: 8/28/2023 or prior to planting at site Estimated Final Completion date :11/15/2023 Milestone 6: Completion of Phase 6. 10% of Total Artwork Payment Due: $61,000.00 Total Artwork Payment: $610,000. 18 76 ARTIST AGREEMENT EXHIBIT D INSURANCE Artist shall obtain and maintain, at its expense, with a carrier authorized to do business in California and having a Best's rating of at least A-VIII, the following insurance coverage: 1. Workers' Compensation as required by law and Employer's Liability. The Employer's Liability minimum limits shall be: (i) bodily injury by accident: $1,000,000 each accident; (ii) bodily injury by disease: $1,000,000 policy limit; and (iii) bodily injury by disease: $1,000,000 each employee. (a) No Workers' Compensation insurance shall be required if Artist completes the following certification: "I certify that my business has no employees, and that I do not employ anyone. I am exempt from the legal requirements to provide Workers' Compensation insurance." NS (Artist initials) 2. Commercial General Liability Insurance in the amount of $1 million each occurrence, $2 million aggregate, for bodily injury and/or property damage liability and include: 3. If necessary, Artist will require their subcontractors or subconsultants to obtain Professional Liability (Errors and Omissions) insurance, including coverage for contractual liability, in the amount of $1,000,000 per claim and annual aggregate. Artist hereby assigns to Client all rights and claims that Artist may have against its subcontractors by reason of their malpractice, misfeasance, negligence, or other professional liability. Artist will not be required to carry Professional Liability insurance. 4. The General Liability policy shall provide that such insurance is primary insurance with respect to Client and that any other insurance maintained by Client is excess and non-contributing with the insurance required under this Exhibit D. All insurance other than Workers' Compensation/ Employer's Liability and Professional Liability (Errors & Omissions) policies shall name the entities listed on the Indemnitees and any other party specified by at any time and from time to time as additional insureds (collectively, the "Additional Insureds"). The Commercial General Liability insurance shall provide coverage for the Additional Insureds at least as broad as that provided for the first named insured. The additional insured coverage shall be in the form of: 1) an individual endorsement naming the Additional Insureds or 2) a blanket endorsement or policy provision stating that any entity required by a written contract or written agreement with the named insured is included as an additional insured. The limits of insurance provided to the Additional Insureds shall be the greater of that set forth in these General Terms or the full per occurrence limit set forth in the policy(ies). 5. All liability and Workers' Compensation insurance policies shall provide that the insurance company waives all rights of recovery by way of subrogation against the Indemnitees and all liability insurance shall be provided on an "occurrence" basis; so long as coverage remains in force for at least three (3) years after Substantial Completion of the project to which this Agreement relates. 6. Copies of policies or a certificate and endorsements providing coverage required under this Exhibit D must be delivered to Client prior to commencement of performance under this Agreement. The 19 77 requirements for the foregoing insurance shall not derogate from Artist's obligations to indemnify Client under this Agreement. Unless agreed to in advance by Client, Artist shall require its subcontractors to provide insurance with the same coverage and limits as Artist would be required to carry under the Agreement, endorsed to name the Additional Insureds as additional insureds. If Artist fails to provide evidence of insurance as required above, then Client shall have the right to withhold payments to Artist until satisfactory evidence of insurance is provided to Client. 20 78 . T LL • EXHIBIT B Artwork Location Map • -1 • 1- 79 EXHIBIT C Bond Estimates Labor and Materials: $691,008 Faithful Performance• $691,008 5353942.1 80 Attachment 3 RESOLUTION NO. XX — 23 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING THE FIRST AMENDMENT TO THE AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITH TRACT 8460, AVALON WEST DUBLIN WHEREAS, on October 19, 2021, the City Council adopted Resolution No. 121-21 approving the Agreement for Long Term Encroachment for Landscape Features with Tract 8460, Avalon West Dublin ("Agreement"), with Avalon West Dublin, L.P., a Delaware limited partnership ("Owner"); and WHEREAS, the City of Dublin and the Owner desire to amend the Agreement to add the maintenance of public art and various decorative features within the public street right-of-way of St. Patrick Way to the Landscape Features listed in the Agreement. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the First Amendment to the Agreement for Long Term Encroachment for Landscape Features with Tract 8460, Avalon West Dublin, attached hereto as Exhibit A to this Resolution. BE IT FURTHER RESOLVED that the City Manager, or designee, is authorized to execute Exhibit A and make any necessary, non -substantive changes to Exhibit A to carry out the intent of this Resolution. PASSED, APPROVED AND ADOPTED this 6th day of June 2023, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk Reso. No. XX-23, Item X.X, Adopted 06/06/2023 Page 1 of 1 81 Attachment 4 Recording Requested By: CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 FIRST AMENDMENT TO AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITH TRACT 8460, AVALON WEST DUBLIN This First Amendment is made and entered into this day of , 2023, by and between the City of Dublin, a municipal corporation ("City") and Avalon West Dublin, L.P., a Delaware limited partnership ("Owner"). A. City and Owner are parties to that certain "Agreement for Long Term Encroachment for Landscape Features with Tract 8460 ("Agreement"), approved by City Council Resolution No. 121-21 on October 19, 2021. B. By this Amendment, the parties desire to add the maintenance of public art and various decorative and special features at St. Patrick Way to the Landscape Features listed in the Agreement. C. City and Owner entered into a separate Public Art Installation Agreement to memorialize the process for City's approval of the public art and outline the terms and conditions of Developer's installation of the Public Art. D. This Amendment and performance of the associated obligations contained herein are intended to fully satisfy the condition to the approval of Vesting Tentative Map No. 10809 and the Site Development Review Permit for the Project that obligates City and Owner to enter into an agreement setting forth ownership, maintenance responsibilities and insurance coverage for the public art project to be installed in St. Patrick Way. NOW, THEREFORE, in the consideration of the of the mutual promises, conditions and covenants herein contained, the parties agree as follows: Section 1. Section 3 of the Agreement is amended and restated to read as follows: Landscape Features: Owner, as part of the Project, anticipates the construction of Project related landscape features within the City's rights of ways on the following streets with Tract 8460; St. Patrick Way (collectively, the "Landscape Features"). Construction details for these Landscape Features are shown on the following plans: 1 82 a. Landscape Plan — St. Patrick Way, prepared by The Guzzardo Partnership, approved by the City Engineer on 9/28/2021, and all approved revisions; and b. Improvement Plan — St. Patrick Way, prepared by CBG Civil Engineers, approved by the City Engineer on 9/28/2021, and all approved revisions; and c. Norie Sato Artwall Feature, Dublin, CA, prepared by Zahner. (the "Public Art"). The scope of the improvements covered under the agreement is shown on the attached Exhibit "A". Section 2. Section 6 of the Agreement is amended and restated to read as follows: Operations and Maintenance. 6.1 Owners shall maintain and repair all the Landscape Features, including all frontage landscape plantings, irrigation, sidewalks, stormwater treatment areas, seat walls, decorative sidewalk medallions, decorative benches, bike racks, string light poles, decorative/stamped pavement, and street trees with tree grates within the designated areas, in a safe manner consistent with the approved plans to the reasonable satisfaction of the City at its sole cost and expense, including electric power and water cost. Owner will be responsible at its sole cost to replace or repair any Landscape Feature damaged or removed during the maintenance or repair of sewer, water, drainage or utility improvements by the City, Dublin San Ramon Services District or utility company, unless such damage or removal is caused by the negligence, gross negligence or willful misconduct of the City, Dublin San Ramon Services District or utility company. The City will maintain at its sole cost all asphalt concrete pavement, concrete curb and gutter, drainage improvements, traffic signs and striping, and streetlights in the public right of way. 6.2. The following provisions shall apply specifically to the Public Art: (a) Following the City's approval of the Public Art in accordance with Section 1.1 of the Public Art Installation Agreement, Owner shall own the Public Art and shall maintain the Public Art, in a safe and clean manner consistent with the approved plans to the reasonable satisfaction of the City all at Owner's sole cost and expense, including electric power, water, and other utilities cost. Owner will use reasonable efforts to maintain the Public Art in good repair and condition. Owner will be responsible at its sole cost to replace or repair the artwork should it be damaged or removed during the maintenance or repair of sewer, water, drainage or utility improvements by the City, Dublin San Ramon Services District or utility company, unless such damage or removal is caused by the negligence, gross negligence or willful misconduct of the City, Dublin San Ramon Services District or utility company. If the Public Art suffers deterioration due to any cause other than Owner's failure to maintain the Art, Owner and City shall meet and confer in good faith to determine whether to replace any portion of the Public Art or translate any component into new media, or whether to restore the Public Art. The anticipated life span of the Public Art is 25 years from the date of approval by the City, as 2 83 set forth in Section 1.1 above. After that time, Owner may, in consultation with City, re- evaluate the Public Art 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 Public Art. In the event that the Owner, in consultation with City, determines that the Public Art does not retain its identity as a work of art and Owner wishes to destroy the Public Art, the Owner must replace the Public Art with art of similar value, adjusted for inflation ("Replacement Art"). Any proposed Replacement Art must be approved by the City prior to the destruction of the Public Art. Owner is solely responsible for ensuring that any destruction or removal of the Public Art complies with the Visual Artists Rights Act of 1990 ("VARA") and the California Artists Preservation Act ("CAPA") to the extent applicable and Owner is solely responsible for obtaining any necessary releases or permission from the artist pursuant to the aforementioned statutes. (b) In the event that Owner fails to maintain the Public Art in accordance with this Agreement, City shall provide written notice of such condition to both the Owner and the Artist. In the event that Owner fails to cure or commence to cure the condition within thirty (30) days following receipt of such notice, the City shall have the right, but not the obligation, to perform all acts necessary to cure such condition (or to pursue such other remedy available to the City), including without limitation the right to access the Public Art, and charge the Owner the City's costs for such action. (c) Modifications; Relocation. Owner intends to display the Public Art as originally created by Artist at the locations set forth on Exhibit [_]. Notwithstanding the foregoing, Owner may make minor modifications to the Public Art and/or relocate the Public Art with the consent of the Director of Parks and Community Services, which shall not be unreasonably withheld, conditioned or delayed. Owner is solely responsible for ensuring that any modification or relocation of the Public Art complies with VARA and CAPA to the extent applicable and Owner is solely responsible for obtaining any necessary releases or permission from the artist pursuant to the aforementioned statutes. (d) Visual Barriers. The Parties agree that no structures or visual barriers of any kind that impair or impede the public's ability to view the Public Art shall be constructed or maintained on or adjacent to the Public Work, nor shall the Parties do anything that shall prevent, impair, or discourage the public's ability to view the Public Art. Notwithstanding the foregoing, the City may install temporary structures or visual barriers to the extent necessary to protect public health and safety in the event of an emergency or in furtherance of a City project or repair to adjacent public structures or improvements. Section 3. Section 7 of the Agreement is amended and restated to read as follows: 7. Removal or Relocation: If future improvements or future plans proposed by the City conflict with any of the Landscape Features, the City may remove or reasonably relocate the Landscape Feature at its sole cost. If any of the Landscape Features are relocated, the City and Owners will execute a modification to this Agreement to reflect the maintenance and operations at its new location. Provided, however, the City is under no obligation to relocate any of the 3 84 Landscape Features. Owner is solely responsible for obtaining all necessary waivers, releases, and/or permission from the artist to permit City to relocate or remove the Public Art elements of the Landscape Features in compliance with the Visual Artists Rights Act of 1990 ("VARA") and the California Artists Preservation Act ("CAPA") to the extent applicable. Section 4. Section 8 of the Agreement is amended and restated to read as follows: 8. Insurance 8.1. Throughout the installation, fabrication, and maintenance of the Landscape Features, including the Public Art, as contemplated by this Agreement, Owner is required to secure and maintain commercial general liability and automobile liability policies covering personal injury or property damage associated with the Landscape Features and the installation, fabrication and maintenance thereof, such insurance shall include a combined single limit policy of liability insurance not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) in the aggregate. 8.2. All insurance policies contemplated by this Section shall be placed with insurers with a Bests' rating of no less than A-:VII and shall name the City and its officers, officials, employees and volunteers as an additional insured on all such policies. Endorsements must state that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance or self-insurance maintained by the City shall be called upon to contribute to a loss under the coverage. Any failure of Owner to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers. Owner shall notify City within 14 days of notification from Owner's insurer if such coverage is suspended, voided or reduced in coverage or in limits. In the event that any policy contemplated in this Section includes a self -insured retention payment of which is limited to the named insured, such policy will be modified by special endorsement to allow for payment of the self -insured retention by additional insureds. Section 5. Section 9 of the Agreement is amended and restated to read as follows: 9. Indemnification: Owner shall hold harmless, indemnify and, at the City's request, defend City (with counsel reasonably acceptable to City), its officers, employees, authorized agents, boards and commissions, whether elected or appointed, from and against all third party claims, demands, actions, causes of action, losses, damages, liabilities, costs and expenses, including but not limited to reasonable attorney's fees or obligations, (i) for or in connection with any claim that the Artist's rights under VARA or CAPA have been violated, and (ii) in connection with any claim related to personal injury (including, but not limited to, death) or damage to property (both real and personal) to the extent arising out of or connected with the negligent act, error or omission of Owner, its agents, contractors, subcontractors, or employees in connection with the performance of this Agreement, including the construction, maintenance or operation of the Landscape 4 85 Features, unless caused by the negligence, gross negligence or willful misconduct of the City, its agents, contractors or employees. The foregoing hold harmless statement of Owner shall apply to all damages and claims for damages of every kind suffered or alleged to have been suffered by reason of the activities undertaken pursuant to this Agreement, regardless of whether or not City has approved the plans or specifications for the Landscape Features and regardless of whether or not insurance policies have been determined to be applicable to any such damages or claims for damages. Section 6. Section 11 of the Agreement is hereby amended by deleting the following language: "or to a successor in interest of Owners with respect to all or a portion of the Project". Section 7. Section 12 of the Agreement is amended and restated to read as follows: 12. Successors and Assigns: Covenants Intended to Run with the Land: Each reference to the "City" in this Agreement shall be deemed to refer to and include the City and all successors and assigns of City as owners of St. Patrick's Way. All references to the "Owner" in this Agreement shall be deemed to refer to and include Owner and all successors and assigns of Owner as owners of all or a portion of the Property. This Agreement is intended to be a covenant running with the land and binding upon successor owners of St. Patrick's Way and the Property. Section 8. This Amendment shall be recorded in the Official Records of the County of Alameda, State of California. Section 9. Exhibit "1" to this Amendment is hereby attached to the Agreement as a new Exhibit "A". Section 10. Except as amended herein, all other provisions of the Agreement shall be unchanged and remain in full force and effect. SIGNATURES ON FOLLOWING PAGE 5 86 Dated this day of , 2023. CITY: THE CITY OF DUBLIN, a municipal corporation By: Linda Smith City Manager OWNER: AVALON WEST DUBLIN, L.P., a Delaware limited partnership By: Avalon West Dublin GP, LLC, its general partner By: Avalon West Dublin QRS, LLC, its sole member By: Avalor'� �W . r,,,....,...,,,,,:*' s Inc. its sole member, Y' DocuSign"e(df/Aby/�(/'`� �/' f , BY: D2F56Dr A44F'. Joe Kirchofer Senior Vice President - Development 6 87 CONCRETE SEAT WALL LEGEND: L.T.E.A PUBLIC ART WITH ASSOCIATED LIGHTING ///// J49 PROPERTY LINE PUBLIC RIGHT OF WAY PUBLIC ART WITH ASSOCIATED LIGHTING AND CONCRETE SEAT WALL LANDSCAPING, IRRIGATION, SIDEWALK, STORMWATER TREATMENT AREAS, DECORATIVE BENCHES, BIKE RACKS, STREET TREES WITH TREE GRATES, DECORATIVE SIGNAGE MONUMENTS, DECORATIVE SIDEWALK MEDALLIONS, AND STRING LIGHT POLES LONG TERM ENCROACHMENT AGREEMENT DECORATIVE/STAMPED PAVEMENT qs 350-'0 L.T.E.A EXHIBIT 1 ST. PATRICK WAY CITY OF DUBLIN ALAMEDA COUNTY CALIFORNIA DATE: MAY 22, 2023 SCALE: 1" =100' cb9l CIVIL ENGINEERS SAN RAMON (925) 866-0322 ROSEVILLE (916)788-4456 W W W.CBANDG.COM • SURVEYORS • PLANNERS 88 F:12763-0001ACADIEXHIBITSIXB-098-LTEA EXHIBIT-1 2023-05-22.DW, Attachment 5 Recording Requested By: CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 r,V) ` Fee Waived per GC 27383 2021371212 11/15/2021 10:20 AM 7 PGS OFFICIAL RECORDS OF ALAMEDA COUNTY MELISSA WILK, CLERK -RECORDER RECORDING FEES: $0.00 1111111111 11 111111/111 111 AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITH TRACT 8460, AVALON WEST DUBLIN THIS AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITH TRACT 8460 ("Agreement") is made between the City of Dublin ("City") and Avalon West Dublin, L.P., a Delaware Limited Partnership ("Owner"). 1. Property: The subject property is Tract 8460 as filed in Book of Maps at Pages IV - 2-3 , in the Official Records of the County of Alameda, State of California. 2. Developer: Developer is the Owner of Tract 8460, Avalon West Dublin ("Project"). 3. Landscape Features: Owner, as part of the Project, anticipates the construction of Project related landscape features within the City's rights of ways on the following streets with Tract 8460; St. Patrick Way (collectively, the "Landscape Features"). Construction details for these Landscape Features are shown on the following plans: a. Landscape Plan — St. Patrick Way, prepared by The Guzzardo Partnership, approved by the City Engineer on 9/28/2021; and b. Improvement Plan — St. Patrick Way, prepared by CBG Civil Engineers, approved by the City Engineer on 9/28/2021 The scope of the improvements covered under the agreement is shown on the attached Exhibit "A". 4. Encroachment Permit: Owners shall apply to the City for an encroachment permit for work to be performed pursuant to this Agreement. The City must grant the encroachment permit for all work to install, operate and maintain the Landscape Features improvements and all the conditions imposed by the City must be consistent with the provisions of this Agreement. If there is a conflict 1 between any provisions of this Agreement and the encroachment permit, the provisions of this Agreement shall prevail over the conditions of the encroachment permit. 5. Ownership: Owners shall own all special Landscape Features, including but not limited to sidewalk, plantings, irrigation, street trees, stormwater treatment areas, seat wall, decorative/stamped pavement, etc. 6. Operations and Maintenance: Owners shall maintain and repair all the Landscape improvements, including all frontage landscape plantings, irrigation, sidewalks, stormwater treatment areas, seat walls, decorative/stamped pavement and street trees within the designated areas, in a safe manner consistent with the approved plans to the reasonable satisfaction of the City at its sole cost and expense, including electric power and water cost. Owner will be responsible at its sole cost to replace or repair any Landscape Feature damaged or removed during the maintenance or repair of sewer, water, drainage or utility improvements by the City, Dublin San Ramon Services District or utility company, unless such damage or removal is caused by the negligence, gross negligence or willful misconduct of the City, Dublin San Ramon Services District or utility company. The City will maintain at its sole cost all asphalt concrete pavement, concrete curb and gutter, drainage improvements, traffic signs and striping, and streetlights in the public right of way. 7. Removal or Relocation: If future improvements proposed by the City conflict with any of the Landscape Features, the City may remove or reasonably relocate the Landscape Feature at its sole cost. If any of the Landscape Features are relocated, the City and Owners will execute a modification to this Agreement to reflect the maintenance and operations at its new location. Provided, however, the City is under no obligation to relocate any of the Landscape Features. 8. Insurance: Owners shall obtain and maintain in effect a combined single limit policy of liability insurance not less than one million dollars ($1,000,000) covering the Landscape Features improvements and shall name the City as an additional insured. 9. Indemnification: Owners shall indemnify, defend and hold the City harmless from and against any and all loss, claims, liability damage or expense or cost the City may incur or become liable for or for which a claim is made by a third party, due to or arising out of Owner's construction, maintenance or operations of the Landscape Features unless caused by the negligence, gross negligence or willful misconduct of the City, its agents, contractors or employees. 10. Permanent: The Landscape Features and the rights appurtenant thereto as set forth in this Agreement shall exist in perpetuity, and are appurtenant to the Property. 11. Right to Assign: Owners may assign any or all rights, interests and obligations of Owners arising under this Agreement to the Homeowners' Association for Tract 8460 or to a successor in interest of Owners with respect to all or a portion of the Project; provided, however, that no such assignment of Owners' rights interests and obligations under this Agreement shall occur without prior written notice to the City and written approval by the City Manager, which approval shall not be unreasonably withheld, conditioned or delayed. The City Manager shall consider and decide on any assignment within ten (10) days after Owner's notice thereof, provided all necessary documents and other information are provided to the City Manager to enable the City Manager to assess the assignment. 12. Successors and Assigns: Each reference to the "City" in this Agreement shall be deemed to refer to and include the City and all successors and assigns of City. All references to the "Owner" in this Agreement shall be deemed to refer to and include Avalon West Dublin, L.P., a Delaware Limited Partnership, and all successors and assigns of Avalon West Dublin, L.P., a Delaware Limited Partnership. 13. Notices: Any notices, requests, demands or other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given on the date of delivery if delivered personally to the party to whom notice is to be given (including messenger or recognized delivery or courier service) or on the second day after mailing, if mailed to the party to whom notice is to be given, by first-class mail, postage prepaid, and properly addressed as follows: City: City of Dublin 100 Civic Plaza Dublin, California 94568 Fax No. (925) 833-6651 Attn: City Manager Owner: Avalon West Dublin, L.P. 455 Market St., Suite 1650 San Francisco, CA 94105 Attn: Development VP 14. Exhibits: All exhibits attached to this Agreement are incorporated herein as though they were set forth in full body of this Agreement. 15. Partial Invalidity. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect and shall in no way be impaired or invalidated, and the parties agree to substitute for the invalid or unenforceable provision a valid and enforceable provision that most closely approximates the intent and economic effect of the invalid or unenforceable provision. 16. Entire Agreement. This Agreement contains the entire agreement and understanding of the parties with respect to the subject matter hereof and cannot be amended or modified except by a written agreement, executed by each of the parties hereto. 17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall, for all purposes, be deemed an original and all such counterparts, taken together, shall constitute one and the same instrument. Dated this 21t1 day of Qc be..v- , 2021. CITY: THE CITY OF DUBLIN, a municipal corporation Linda Smith City Manager OWNER: AVALON WEST DUBLIN, L.P., A DELAWARE LIMITED PARTNERSHIP By: Avalon West Dublin GP, LLC, its general partner By: Avalon West Dublin QRS, LLC, its sole member By: AvalonBay Coo}rununi 'es, Inc., its sole member By: /_,— Joe Kir ofer / V Vice resident - Development CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of San Francisco On101(u)0 Date personally appeared before me, } OUD SAPPRASERT O'BRIEN, NOTARY PUBLIC Here Insert Name and Title of the Officer JOE I1,1 Git'O%f Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. A A A �► A w w -- w r OUD SAPPRASERT O'BRIEN I COMM. #2223474 NOTARY PUBLIC-CALIFORNIA 0 SAN FRANCISCO COUNTY iv My Comm. Expires Dec. 23, 2021 Place Notary Seal and/or Stamp Above I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Signature of Notary Public OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): 0 Partner — 0 Limited 0 General ❑ Individual ❑ Trustee O Other: Signer is Representing: ❑ Attorney in Fact O Guardian of Conservator coitw4.-yamtwgoistmoiwl. ©2017 National Notary Association Number of Pages: Signer's Name: O Corporate Officer — Title(s): ❑ Partner — 0 Limited 0 General O Individual ❑ Trustee O Other: Signer is Representing: ❑ Attorney in Fact ❑ Guardian of Conservator (Z,--,-(/Gy s, Gr=i Z373 PROPERTY BOUNDARY LINE RIGHT OF WAY LINE PROPOSED SANITARY SEWER MAIN (SEE NOTE 1) PROPOSED STORM DRAIN MAIN PROPOSED WATER MAIN (SEE NOTE 3) CO PROPOSED PRIVATE PROPOSED I I a I 3I II S H IMPROVEMENTS TO BE CITY OWNED/PRIVATELY MAINTAINED IMPROVEMENTS TO BE CITY OWNED/CITY MAINTAINED 0 z U Lai LaJ w CI m m W m /- m lay m a U S JJ O tNi J �J S' W J 0 $' 0 La-O W J J V% (n J (Z__ <N mZ Zw - wO q W >Z U� U' Z ¢ mm O W ll. 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T I I �1 0 a oik 1 1 I.�'�.tote co c� 'Ir I •ittit0v.-.: = U LL \ -FJ Pf I ,. «0.1,,. \ i , M 9 %3 (y`` `eiF --1 __ 01%3 _ _ — _ � - — SSA%3 — — �J � .J r _ , DJell9 1'V4OFO2J F:1276300041CAD1EXHIBITSM-083OWNERSHIP 8 MAINTENANCE.DWc CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Alameda On October 27, 2021 before me, Marsha Louise Moore, Notary Public, personally appeared Linda Smith„ who proved to me on the basis of satisfactory evidence to be the person(s) whose names) is/arc subscribed to the within instrument and acknowledged to me that -he/she/t-hey executed the same in his/her/thei-r authorized capacity{ies), and that by his/her/thei signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature 00(AAAAWPAar62-- (Seal) MARSHA LOUISE MOORE Notary public - California i Alameda County Commission # 2339611 My Comm, Expires Dec 1, 2024 L-a1.41St. T-{o D r C—