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02-084 Roger Berry - Public Art City Center Park~~ ~:U b AGREEMENT FOR CONSULTATION, DESIGN, FABRICATION, TRANSPORTATION, AND INSTALLATIO:K SERVICES BETWEEN THE CITY OF CUPERTINO AND ROGER BERRY, ARTIS'C A SOLE PROPRIETOR, FOR A WORK OF Al2T This Agreement, for Consultation, Fabrication, Tr<sportation, and Installation and for a Work of Art at the southeast corner of Stevens Creek Boulevard and Dae~A.nza Boulevazd in Cupertino (AGREEMENT), effective and entered into this /~i ~ay of~G`T' 2003, in Cupertino, California, is by and between the City of Cupertino (CITY), and Roger Berry (ARTIST). RECIT~4LS WHEREAS, the CITY OF CUPERTINO desires t~~ obtain Art Consultation, Design Fabrication, Transportation, and Installation services for a scul~~ture piece called "Perspectives", hereinafter referred to as the SCULPTURE, in City Center Pl~iza; and, WHEREAS, Roger Berry has the necessary professional expertise and skill to perform the Artistic services required. NOW, THEREFORE, the purpose of this Agreement is to retain Roger Berry as ARTIST to the CITY to perform those services specified in Exhibit A of this Agreement. THE PARTIES HEREBY AGREE AS FOLLOWS: TERMS OF AGREEMENT 1. Definitions Where any word or phrase defined below, or a pronoun used in place thereof, is used in any part of this Agreement and Specifications, it shall have the meaning herein set forth: 1.1 "ARTIST" shall mean Roger Berry. 1.2 "Art work" shall mean the SCULPTURE, ''`Perspectives", by the ARTIST for the City Center Plaza, described in EXHIBIT A -SCOPE OF WORK, and as approved by the CITY. 1.3 "City Manager" shall mean the City Mana~~er of the City of Cupertino, California. City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page 1 of 23 1.4 "CITY" shall mean the City of Cupertino, a municipal corporation. 1.5 "City Council" shall mean the City Councia of the City of Cupertino. 1.6 "City Project Manager", or "Project Manager, shall mean Terry W. Greene, City Senior Architect 1.7 "Final Design" shall mean the fmal specifications and information as indicated in EXHIBIT A -SCOPE OF WORK. 1.8 "General Contractor(s)" shall mean the general contractor (s) hired by CITY to construct the City Center Park. 1.9 "Project Director" shall mean Ralph A. Qualls, Jr., Director of Public Works. 1.10 "Project Management Team" shall mean the City Project Manager, Terry Greene, the Public Works Director, Ralph Qualls, the Construction Manager, David Marks, and the Owners Association Representative, Don E~ragg. 1.11 "Proposal" shall mean the approved SCULPTURE set forth in EXHIBIT B - PROPOSAL 1.12 "Site" shall mean southeast corner of Stevens Creek Boulevard and De Anza Boulevard in Cupertino, California. 1.13 "Work" shall mean the work to be done in providing the City of Cupertino with the SCULPTURE as described in EXHIBITS A, B, and C, as provided under the terms of this AGREEMENT. 1.14 Whenever the words "as directed", "as required", "as permitted", or works of like effect .... are used, it shall be understood as the direction, requirement, or permission of the CITY. The words "sufficient", "necessary", or "proper", and the like, mean sufficient, necessary or proper in the judgment of the CITY. The words "approval", "acceptable", "satisfactory", or words of like import, shall mean approved by, or acceptable to, or satisfactory to the CITY, unless otherwise indicated by the context. 2. Term of the Agreement The term of this AGREEMENT shall be retroactive, commencing on July 1 , 2002 ,and shall end on December 31, 2003. The CITY may, in its discretion, extend the term of this AGREEMENT by one (1) or more months, up to a maximum of (6) months, by giving written notice to ARTIST at least thirty (30) days prior to the Termination Date. City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page 2 of 23 3. Services Artist Agrees to Perform The ARTIST agrees to perform the services provided for in EXHIBIT A -SCOPE OF WORK, and further described in EXHIBIT B -PROPOSAL, as approved by the CITY, which are attached hereto and incorporated by reference as though fully set forth herein. 4. Timely Provision of Services The ARTIST agrees to the following schedule of deliverables. CITY may, in its discretion, notify ARTIST, in writing, of c}ianges in the following schedule: 4.1 Schematic Design -Completion by Februs~ry 28, 2003. ARTIST shall coordinate with CITY to review structural, location, and dimension aspects of art work. ARTIST shall complete schematic design drawings reflecting above issues and submit to CITY for review and approval by above referenced date. 4.2 Final Design -Completion by Apri130, 2003. ARTIST shall provide final specifications for the SCULPTURE to the CITY, for review and approval, by the above referenced date, including working drawings for all components, structuraUengineering drawings, cost estimates on fabrication and materials, revised and accurate site placement, and samples of materials indicative of color and surface treatment. ARTIST shall supply evidence of Insurance Against Loss, to CITY, as required in Section 15.1. 4.3 Fabrication -Completion by August 31, 2;003. ARTIST shall provide evidence of completion of fabrication to CITY. ARTIST shall supply evidence of General Liability Insurance and Comprehensive Automobile Liability Insurance, to CITY, as required under Section 15.1. 4.4 Transportation /Delivery -Between September 1, 2003 and September 30, 2003. ARTIST shall be responsible for the transportation and delivery of the SCULPTURE to the site during the referenced dates. 4.5 Installation -Completion by October 31, 2003. ARTIST shall install the SCULPTURE on the Site by the above referenced date. .ARTIST shall coordinate the installation of the SCULPTURE with the CONSTRUCTION MANAGER and the CONTRACTOR. The ARTIST shall consult with project teaun members as requested by CITY, during schematic design, final design, fabrication and installation. ARTIST shall be given not less than 30 days notice of all product delivery deadlines or schedule changes. S. Approval Process 5.1 If the CITY, in its sole and reasonable discretion, determines to withhold any approval or any element as specified below, the CITY ;shall have the right to immediately terminate this AGREEMENT and shall have no furtl~~er obligations under this AGREEMENT. City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page 3 of 23 5.2 Schematic Design. The ARTIST shall coordinate with the CITY to document structural, seismic, location, and dimensional aspects of the SCULPTURE. The ARTIST shall submit Schematic Design for CITY approval. Upon acceptance and approval by CITY, ARTIST will be issued a Notice To Proceed for Final Design. 5.3 Final Design. The ARTIST shall submit the Final Design for CITY approval. Upon acceptance and approval by CITY, ARTIS"T will be issued a Notice To Proceed for Fabrication. 5.4 Fabrication. The ARTIST shall submit evidence of completion of Fabrication for CITY approval. Upon acceptance and approval l;~y CITY, ARTIST will be issued a Notice To Proceed to prepare for Transportation and Delivery. The CITY shall be given access to the SCULPTURE and ARTIST'S studio, during normal business hours, to review the ARTIST' S progress, throughout the design. and fabrication process. 5.5 Transportation and Delivery. ARTIST shall submit evidence of the required General Liability and Automobile Liability insuran~~e as described in this AGREEMENT. Upon acceptance and approval of the insurance and transportation documents by CITY, ARTIST will be issued a Notice To Proceed to Transport and Deliver. CITY will inspect the SCULPTURE, for conformance to the Final Design prior to transport and upon arrival at Site. 5.6 Installation: ARTIST shall consult with the CITY as appropriate during the installation of the SCULPTURE. The ARTIST is entirely responsible for the material, means and methods of installation of the SCULPTURE, and at no time, prior to Final Acceptance will CITY be responsible for those materials, means or methods. 5.7 Conditions to Final Acceptance: The completed SCULPTURE shall not be deemed to have been accepted by CITY until each of the following conditions has been fulfilled, as determined by CITY: (a) Any damage to the SCULPTURE, -which occurred during transportation, delivery or installation, must be repaired to ~:he satisfaction of CITY. (b) Any disputes between ARTIST and other site contractors, arising out of or related to the installation, must be resolved. to the satisfaction of CITY. (c) ARTIST shall present Lien Releases for all Sub Contractor work associated with the design, fabrication, transportati~~n, delivery, and installation of the SCULPTURE. (d) CITY has received and approved appropriate SCULPTURE Maintenance, Repair and Operations Plan provided by ARTIST. 6. Consultation during Design, Fabricatio~~ and Installation; Deviation from Approved Specifications City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page 4 of 23 6.1 Consultation. Artist hereby acknowledges that the goal of the parties to this Agreement is the installation of a work of art that best represents the creative talents of Artist and conforms to the requirements of the CITY. To those ends, ARTIST agrees to be available, as reasonably required, for consultation with the CITY during final design, fabrication, transportation and installation ~~f the SCULPTURE, at no additional cost to the CITY. 6.2 Deviations From Approved Design. Artist shall fabricate and install the SCULPTURE in strict conformity with the drawings and specifications approved by the CITY, pursuant to Section 5 above. However, ARTIST may .at any time make a request of the CITY for its approval of a deviation from the approved drawings and specifications; provided that all such requests be made in reasonable specificity and with reasonable advance notice to provide the CITY with sufficient information and time to make an informed and considered decision. In no event shall any deviation increase the project scope and/or budget without prior CITY approval. The CITY may withhold approval to any such requested deviation. 7. Preparation of and Access to Site /Notice of Conflicting Conditions 7.1 The preparation for the Site shall be the responsibility of the ARTIST. Artist may, by mutual agreement, contract with the gener<<1 contractor to perform all site preparation and post installation work. Artist shall not transport the SCULPTURE from the studio to the Site until access to the Site has been approved by the CITY. The CITY shall not approve ARTIST'S access to the Site until: (a) ARTIST has submitted to the CITE' certificates evidencing General Liability insurance and Automobile Liability insurance as required pursuant to this AGREEMENT; and, (b) ARTIST has submitted to the CITY a certificate evidencing a transportation agreement between ARTIST and a bonded Transporter. (c) ARTIST has submitted a written acknowledgement of responsibility for all parking fees, transportation permit<,, penalties as may be incurred during transport and other costs or charges arising fi•om , or associated with the transportation of the SCULPTURE. 7.2 Where ARTIST'S work is associated with that of any other contractor, ARTIST shall examine the adjacent work and report in writing to the CITY any visible defect or condition preventing the proper execution ~~f this AGREEMENT. If ARTIST proceeds without giving notice, ARTIST shall be held to have accepted the work or material and the existing conditions, and shall be respor.~sible for any defects in his own work consequent thereupon, and shall not be relived of any obligation or any guarantee because of any such condition or imperfection. 7.3 To the extent that any part of the ARTIST' S work must interface with work performed or installed by others, ARTIST shall inspect ~~nd measure the in-place work and promptly City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page 5 crf 23 report to the CITY, in writing, any defect vn such in-place work that will impede or increase the cost of the ARTIST' S interface, unless corrected. The CITY will resolve the defective in-place work, to the satisfaction of, and without expense to, the ARTIST. If the ARTIST fails to measure, inspect and/c-r report defects that are reasonably discoverable, all costs of accomplishing the interface shall be borne by the ARTIST. The foregoing does not apply to latent defects. The Artist shall report latent defects in the in- place work at any time such defects become known to ARTIST, and the CITY shall promptly thereafter take such steps as may be appropriate. 7.4 Any difference or conflict that may arise between the ARTIST and other contractors in regard to their Work shall be adjusted as determined by the CITY, its agents, or its authorized representatives when such suspension or prosecution is necessary to facilitate the work of other contractors or workers. IJo damages or claims by the Artist will be allowed therefore other than an extension c-f time as specified in the Contract for the completion of Work. Such an extension will be for the period of time as the CITY shall consider the Artist to have been delayed in the completion of work by reason of the work of other contractors or workers. 7.5 If, when the Artist completes fabrication or procurement of the Work in accordance with the approved schedule and notifies the CITY that the Work is ready for installation, the Artist is delayed from installing the Work ~~vithin the time specified in the schedule as a result of the construction of the Site not being sufficiently complete reasonably to permit installation of the Art work therein, the CI'CY shall promptly reimburse the Artist for reasonable storage costs incurred for the period between the time provided in the schedule for commencement of installation and the date upon which the Site is reasonably sufficiently complete to permit installation of the Art work. 7.6 Artist shall not be entitled to any other damages for delays in the installation or acceptance of the work due to any actions ~~f the CITY, its consultants or contractors. Artist shall bear any storage costs resulting; from the completion of services under this Agreement prior to the time provided in the schedule in Section 4. 8. Compensation 8.1 Contract Amount: The total contract amolmt is ONE HUNDRED FORTY THREE THOUSAND SEVEN HUNDRED EIGH7,Y-EIGHT DOLLARS AND 00/100 CENTS ($143,788.00) for all services under this Agreement, including payment to all suppliers, subcontractors, fees, taxes, permits, insura~zce, transportation to and from meetings, and all other expenses associated with the scope of work specified in this Agreement. The Artist shall be responsible for the payment of all mailing or shipping charges on submissions to the CITY, the costs of tran:eporting the work to the site and the costs of all travel by the Artist and the Artist's agents .and employees necessary for the proper performance of the services requirement wider this Agreement. The breakdown of costs associated with this Agreement is provided in EXHIBIT C, "Calculation of Charges," attached hereto and incorporated by refere-ice as though fully set forth herein. City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page 6 of 23 No chazges shall be incurred under this Agreement nor shall any payments become due to Artist until all reports and services, or both, required under this Agreement are received from Artist and approved by the CITY as tieing in accordance with this Agreement. The final payment of the fee is due and payable; when the work is finally accepted by the CITY and a final invoice is submitted by the Artist. In no event shall the CITY be liable for interest or late charges for any late payments. 8.2 Interim Payments: The CITY is not obligated to pay any part of the Artist's fee or any other project expenses unless and until the work is finally accepted by the CITY. The CITY may, however, make interim payments to the Artist according to schedule and conditions set for the in EXHIBIT C - "Calculations of Charges". 8.3 Effect of Approval for Interim Payment: ~~pproval of the work to permit an interim payment is solely for the benefit of the Artist. Payment does not constitute acceptance or approval of the work by the CITY, nor shall it be construed as a waiver of the CITY's right to require that the work conform strictly to the design and project specifications as approved by the CITY. 8.4 Refund of Interim Payments: In the event this Agreement is terminated for any reason prior to CITY's final payment to Artist, Artist shall immediately refund to CITY any interim payment made to Artist, the amount of which has not been previously spent by Artist as evidenced by appropriate invoice: or receipts to cover costs and expenses approved by the CITY. 9. Method of Payment Invoices furnished by the Artist under this Agreement must be in a form acceptable to the Finance Director. All amounts paid by CI'T'Y to Artist shall be subject to audit by the CITY. Payment shall be made by the CITY to the Artist at the address stated above. 10. Tazes Any taxes levied upon this Agreement, the transaction, or the equipment or services delivered under this Agreement, including sales or use taxes shall be borne by the Artist. 11. Liability for Damage to Equipment or A,rt Work The CITY shall beaz no responsibility, nor incur any liability, for loss or damage to the Art work or any Artist-owned equipment vnvolved in Artist's performance under this Agreement. 12. Independent Contractor Artist shall be deemed at all times to be an independent contractor and shall be wholly responsible for the manner in which the Artist performs the service required by the terms City Center Pazk Roger Berry Artist Final Agreement, February 8, 2003 Page 7 of 23 of this Agreement. Nothing contained herein shall be construed as creating an employment or CITY relationship between the CITY and the Artist. Terms in this Agreement referring to direction from the CITY shall be construed as providing for direction as to policy and res~.tlt of the Artist's work only and not as to the means by which such a result is obtained. 13. Artist Warranties 13,1 Conformance with Plans and Specifications. Artist hereby expressly warrants to the CITY that the Art work, and all services anal materials incorporated therein, shall conform to all plans and specifications of t17e Art work approved by the CITY. The Art work shall be subject to inspection and rejection with due cause by the CITY from the beginning of fabrication until the fmal completion and acceptance. An inspection by the CITY of any work or material shall not be deemed to be a waiver of any future right of inspection or of any right to demand correction of any subsequently discovered defect. Any work or material found to be unsatisfactory or defective before fmal approval of the work shall be corrected or replaced by the .Artist within a reasonable time. Inspection shall not relieve the Artist of the Artist's obligation to furnish materials and workmanship reasonably in accordance with the contract. 13.2 Defects in Material and Workmanship. Artist warrants that the work will be free of defects in workmanship or materials, including inherent defects, and that Artist shall, at Artist's cost and expense, remedy such defects in workmanship or materials, that appeaz within a period of one (1) yeaz from the date the work is fmally accepted by the CITY. In the event the Art work should deteriorate due to an inherent defect within one (1) year from the date the work is finally accepted ley the CITY, the Artist will repair or replace the work at Artist's expense. "Inherent dei~ect" refers to a quality within the material or materials which comprise the Art work which, either alone or in combination, results in the tendency of the work to destroy itself. "Inherent defect" does not include any tendency to deteriorate which is specifically identified in the Specifications submitted by the Artist. 13.3 Title. The Artist represents and warrants that: (a) the Work is solely the result of the aztistic effort of the Artist; (b) the Work is unique and original and does not infringe upon any copyright; (c) the Work, or a duplicate thereof, has not been accepted for sale elsewhere; and (d) the Work is free and cle~az of any liens from any source whatever. 13.4 Unique. Artist warrants that the Art work is unique and an edition of one, and that the Artist will not execute or authorize another to execute another work of the same design, dimensions or materials as the work commissioned pursuant to this Agreement. For the purpose of this warranty, the Art work shall be defined as "Perspectives". This warranty shall continue in effect for a period consisting of the life of the Artist, plus 50 years and shall be binding on the Artist's heirs and a;~signs. City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page 8 of 23 14. Maintenance, Repairs, Alterations and Removal 14.1 Maintenance and Repair. As a condition tc- final acceptance by the CITY of the Art work, the Artist shall provide the CITY with a parts list and written description of the regular maintenance needs of the Art work. Routine maintenance of the Art work shall be the responsibility of the CITY. The CITY shall maintain the Art work and/or make minor or emergency repairs without Artist's approval or consultation, provided such work is performed in accordance with the maintenance and materials information provided by the Artist. If necessary repair:; cannot be made in accordance with the Artist's specifications, or if Artist has provided insufficient information to the CITY, the CITY may use its best judgment to effect necessary repairs. 14.2 Removal or Destruction. Artist hereby acknowledges that the Art work, when installed, will be incorporated within and made a pazt of the City Center Park in such a way that removing the Art work from the City Centc;r Plaza, or the destruction or modification of the City Center Pazk may cause the destruction, distortion, mutilation or other modification of the Art work. Artist therefore agrees that the CITY shall have the absolute right incidental to its ownership o f City Center Park and the Art work to alter, change, modify, destroy, remove, relocate, move, replace, transport, or transfer, in whole or in part (such actions being referred to herein as "Alterations"), the Art work at such time as the CITY shall deem necessary in order to exercise its powers and responsibilities with respect to public works and improvements in furtherance of CITY's operations. The - CITY shall make a good faith effort to pro~~ide the Artist with prior written notice of the CITY's intent to undertake any Alterations to the Art work. To the extent the provisions of this Section are inconsistent with the provisions of federal or state law, including without limitation the California Art Preservation Act and the 1990 Visual Artists' Rights Act, Artist hereby waives any right to preservation of the Art work provided by those laws; provided, however, that the Artist shell retain any right to disclaim authorship of the Art work pursuant to and under the conditions set forth in the California Art Preservation Act and the 1990 Visual Artists' Rights Act. 14.3 Public Hazard. Artist warrants to the CIT~t that the Art work as installed does not contain features, materials or elements that pose a foreseeable danger to the public. In the event that the CITY determines that the: Art work presents an imminent hazard to the public, the CITY may authorize the removal of the Art work without approval of the Artist. The Artist shall be notified within thirty (30) days of any such action, and the CITY shall then consider options for the final disposition, repair, reinstallation, maintenance or de-accession of the Art work. In the event that the Art work can not be removed without being irrepazably damaged or destroyed, the Artist hereby agrees to waive any rights the Artist may have under the California Art Preservation Act and the 1990 Visual Artists' Act, provided, however, that the Artist shall retain any right to disclaim authorship of the Art work pursuant to and under the conditions set forth in the California Art Preservation Act and the 19'0 Visual Artists' Rights Act. 14.4 Artist's Address. The Artist shall notify the CITY of any change in address. Failure to do so shall be deemed a waiver by Artist of any rights to approval under this Section 14. City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page 9 of 23 15. Insurance 15.1 Required Insurance. Artist shall place and maintain for the periods stated below, and pay the cost thereof, the following insurance policies: (a) Worker's Compensation. If Artist has employees, Artist shall procure and maintain statutory Worker's Compensation Insurance in the jurisdiction where the work is being performed and provide a waiver ~~f subrogation against the CITY. Artist shall also procure and maintain Employer's ]Liability Insurance with a limit of no less than $1,000,000 each accident, covering all employees. If Artist warrants that he is not an employer and has no employees as defined by the California Labor Codes Sections 3351-3351.5, then the CITY waives the: requirement for Worker's Compensation and Employer's Liability Insurance under thhis Agreement. Artist shall ensure that Artist's subcontractors who do qualify as employers as defined by the California Labor Code Sections 3351-3351.5 procure prior to certification of this Agreement, and maintain until Art work is accepted by the CITY, Worker's Compensation, with Employer's Liability insurance, with limits of no less than $1 million each accident, covering all employees employed by Artist's subcontractor to provide statutory benefits as required by the laws of California, said policy shall be endorsed to provide that the insurer waives all rights oi'subrogation against the CITY. (b) Insurance Against Loss. Prior to disbursennent by the CITY of the second interim payment pursuant to Section 10.2, to be maintained until the Art work is accepted by the CITY, proof that the Art work is insured al;ainst loss for not less than the value of this Agreement with not more than $1,000 deductible. (c) General Liability Insurance. Procure, or cause his subcontractor to procure, prior to receiving the third interim payment and maintain until the Art work has been accepted by the CITY, Comprehensive General Liability Insurance with limits not less than $1,000,000 for each occurrence combined single limit for bodily injury and property damage, including coverage for contractual liability, broad form property damage, completed co operations, and if any subcoiitxacted work, independent contractors. (d) Comprehensive Automobile Insurance. Procure, or cause his subcontractor to procure, prior to receiving the third interim payment, and maintain until the Art work has been accepted by the CITY, Comprehensive automobile liability insurance with single limit for bodily injury and property damage of $50f-,000, including coverage for owned, non- owned and hired automobiles, as applicable. Any deductible under such policy shall not exceed $1,000 for each occurrence. 15.2 Miscellaneous Insurance Matters. 15.2.1 All insurance policies obtained pursuant to this Section shall be endorsed to provide: City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page 10 of 23 (a) That thirty (30) days written notice of cancellation, non-renewal or reduction in coverage or limits shall be given to CITY Project Manager, Terry Greene, CITY of Cupertino, 10300 Torre Avenue, California 95014; and (b) That such insurance is primary to a~iy other insurance available to an additional insured with respect to claims arising out of this Agreement and that insurance applies separately to each insured against whom a claim is made or a suit is brought, but the inclusion of more than one insured shall not operate to increase the insurer's limits of liability. 15.2.2 All insurance policies required under this Agreement shall be issued by insurance companies reasonably acceptable tc- the CITY and shall be authorized to do business in the State of California. 15.2.3 The liability insurance policies required above shall be endorsed to name as an additional insured the CITY and its respective members, officer, directors, agent and employees. 15.2.4 Copies of all insurances shall be provided to the CITY, and complete copies of any insurance policies obtained pursuant to this Agreement shall be provided to the CITY if requested at any time. 16. Indemnification and General Liability Artist shall defend, indemnify and protect the CITY and its officers, employees, agents, contractors, consultants and members of it:. boards and commissions (an "Indemnified Person") harmless from and against any and all Losses arising directly or indirectly, in whole or in part, out of any injury to or de~~th to any person or damage to or destruction of any property, from any cause whatsoever, relating to Artist's performance, attempted performance or failure to perform under this Agreement, whether such Loss is caused by the Artist or his agents, employees or contractors, or by any third party. In the event any action or proceeding is brought against an Indemnified Person by reason of a claim arising out of any Loss covered ley this indemnity, and upon written notice from such Indemnified Person, Artist shall at the Artist's sole expense answer and otherwise defend such action or proceeding; using counsel approved in writing by the Indemnified Person. Each Indemnified Person shall have the right to defend, adjust, settle or compromise any claim, obligation, debt, demand, suit or judgment covered by the indemnity set forth in this Section. For purpose of this Section, the term "Losses" shall mean any and all claims, demands, losses, damages, liens, liabilities, injuries, deaths, penalties, fines, lawsuits and other proceedings, judgments and awards rendered therein, and costs and expenses, including, but not limited to, reasonable attorney's fec;s. The artist shall indemnify and hold the CITY harmless from all loss and liability, including attorney's fees, court costs, and a.ll other litigation expenses for any infringement of the patent rights, copyright, trade secret or any other proprietary right or City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page 11 of 23 trademark and all other intellectual property claims of any third party persons arising from the Artist's work under this Agreeme~it. 17. Incidental and Consequential Damages Artist shall be responsible for consequential damages for personal injury including death or tangible property damages due to the Artist's negligence or intentional acts. This Agreement shall not limit any cause of action arising between the parties which is based upon wrongful acts which are independent of the Agreement. 18. Liquidated Damages By entering into this Agreement, Artist and: his subcontractors agree that in the event the work as provided under Section 4 of this Agreement and EXHIBIT A is delayed beyond the scheduled milestones and timelines as specified under Section 4, the CITY will suffer actual damages that will be impractical or a:xtremely difficult to determine, therefore, Artist and his subcontractors agree that the sum of ONE HUNDRED DOLLARS ($100.00) per day for each day of delay be~~ond scheduled milestones and timelines is not a penalty, but is a reasonable estimate of the loss that the CITY would incur based on the delay, established in light of the circumstances existing at the time the Agreement is awarded. CITY may deduct a sum represe~lting the liquidated damages from any money due to the Artist. Such deductions shall not be considered a penalty, but rather agreed monetary damages sustained by the CITY because of failure to deliver to the CITY within the time fixed or extensions of time permir:ed by the CITY. To the extent that the delay is the result of either rain or climatic conditions that would impede the installation of the Art work, or a delay in the schedule provided to the Artist by the General Contractor, the Artist shall not be deemed responsible for :;aid delay and shall be relieved of any liquidated damages. 19. Artist's Default; Remedies; Terminatioc~ 19.1 Artist's Default. Failure or refusal of the ~~rtist to perform or do any act herein required shall constitute a default. In the event of a default, in addition to any other remedy available to the CITY, this contract may be: terminated by the CITY upon ten (10} day written notice. Such termination does not waive any other legal remedies available to the CITY. 19.2 The CITY may terminate this Agreement if the work as fabricated significantly deviates from the Specifications as provided in EXI3IBIT A and the Final Design. There shall be no termination under this subsection, however, unless Artist fails to cure any such nonconformance within 30 days after receipt of written notice from the CITY setting forth in detail the nature of the nonconformance and the specific requirements to cure or correct. In the event such a determination is made, this Agreement shall terminate 30 days after the date the CITY delivers to the; Artist in writing a notice of its intent to terminate. The CITY may rescind the notice ar extend the date for termination, but no rescission or extension is valid unless it is in writing and approved by resolution of the CITY. City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page 12 of 23 19.3 The remedies described in subparagraph (a) and (b) are in addition to all other remedies available to either party under the laws of the State of California should the other party fail to comply with the terms of this Agreement. 20. Notices Submittals, requests, notices and reports required under this Agreement shall be delivered as follows: For the CITY: Terry W. Greene, A.IA 10300 Torre Avenue; Cupertino, California, 95104, For the Artist: Roger Berry 37220 South River Road Clarksburg, CA 95612 A change in the designation of the person or address to which submittals, requests, notices, and reports shall be delivered is effective when the other party has received notice of the change by certified mail. 21.0 Ownership of Art work; Copyright and Patents; Documentation 21.1 Generally. The artist retains all rights under the Copyright Act of 1976, 17 U.S.C. 101 et seq., and all other rights in and to the Art vrork except as detailed in Section 22.5. The CITY is not responsible for any third party infringement of the Artist's copyrights and Artist agrees to hold the CITY harmless for any such infringement. 21.2 Title and Risk of Loss. Title to the Art work shall be held by the CITY. Title passes to the CITY when the Council accepts the work by resolution and the final payment is made to the Artist. The Artist bears the risk of damage to or loss of the Art work until installation of the Art work at the Site is completed as determined by the CITY. 21.3 Display. The CITY has the right to displa~r the project drawings and is authorized to make and reproduce photographs and other two-dimensional reproductions of any drawings or models for publicity and prog~~am purposes. 21.4 Ownership of Documents and Models. Shidies, drawings, designs, maquettes and models prepared and submitted prior to and during; this Agreements shall belong to the Artist. The CITY may select and the Artist shall convey to the CITY one (1) archival copy of the original drawings or models submitted as part of the proposal, the CITY representing that such drawing(s) or model(s) will be u~;ed by it solely for exhibition and held by it in permanent safekeeping. The CITY shall, <<t its sole discretion, have the unconditional right to own maquettes selected for implementation as part of commission awards or may alternatively choose to retain all such magi.~ettes until completion and approval of project City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page 13 of 23 implementation; retain first right of refusal to purchase maquettes submitted by artists not selected for implementation; be given credit upon display and/or reproduction of any maquette or proposal commissioned, whether selected for implementation or not; and require that all proposals and/or maquettes submitted be original and unique. 21.5 Reproduction Rights. The CITY shall have a perpetual, non-exclusive license to make, and to authorize the making of photograph;> and other two-dimensional reproductions of the work for educational, public relations, arts promotional and other non-commercial purposes. For the purposes of this agreemennt, the following are deemed to be reproductions for non-commercial purposes: reproduction in exhibition catalogues, books, slides, photographs, postcards, posters and calendars, and the CITY's on-line homepage; in art magazines, art books, and art and news sections of newspapers; in general books and magazines not primarily devoted to art but of an educational, historical or critical nature; slides and film strips not intended for a mass audience, and television from stations operated for educational pur~~oses or on programs for educational purposes from all stations. 21.6 Artistic Credit. Artist hereby agrees that all formal references to the work and any reproduction of the Art work or proposal iri any form shall include the following credit: "Collection City of Cupertino." The CITY hereby agrees to credit the Artist for the Art work upon publication of any two-dimensional reproductions of the work as stated in this Section. 21.7 Documentation. Artist shall provide complete information regazding intent of Art work, the materials, and processes used in the fat~rication and installation of the work to the CITY for its registration files. Artist shall provide specifications and recommendations for maintenance of the Art work and its sy:;tems. Artist shall provide the CITY with a set of two medium format color transpazencie:~, and two 8 x 10 black and white photographs and their medium format negatives, for program and archival purposes. 22. Subcontracting The Artist shall not subcontract this Agreement or any part of it unless such subcontracting is approved by the CITY. TJeither party shall, on the basis of this Agreement, contract on behalf of or in the name of the other party. An Agreement made in violation of this provision shall confer no rights on any party and shall be null and void. In the event Artist desires to subcontract for any of the services under this Agreement, the Artist shall notify the CIT`~ in writing and describe in detail the services to be provided by said subcontractor. Within ten (10) business days after receipt of Artist's notice of intent to subcontract, CITY shall notify Artist in writing of its consent to subcontract, which consent shall not be -unreasonably withheld, as well as any insurance requirements the CITY desires to impose on subcontractor activities. The Artist's agreements with his subcontractors shall require that the subcontractors comply with each of the Artist's legal obli~~ations to the CITY as set forth in this Agreement. City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page 14 of 23 The Artist shall pay prevailing wages to all employees or sub contractors during the course of executing the work described in this Agreement, and shall be prepared to submit Certified Payrolls to the City, for review, upon request. 23. No Assignment or Transfer Artist shall consistently give his personal attention to the faithful execution of the scope of work of this Agreement. The Artist shall keep the work under his control and shall not assign or subcontract the whole or any part thereof, except as herein provided. All transactions with subcontractors shall be made through the Artist, and no subcontractor shall relieve the Artist of any of the Artist'; liability or obligations under this contract. 24. Compliance with Laws Contractor Shall Not Discriminate. In the performance of this contract, Artist agrees not to discriminate on the basis of the fact or perception of a person's race, color, creed, religion, national origin, ancestry, age, sex or disability. 25. Miscellaneous 25.1 Survival of Indemnities and Other Provisions. Termination of this Agreement shall not affect CITY's right to enforce any and all indemnities, representations or warranties given or made by Artist to CITY under this Agreement, nor shall it affect any other provision of this Agreement that expressly states it shall survive termination. 25.2 Force Majeure. The term "Force Majeure" with respect to a delay in performance shall mean any delay that is attributable to (1) arty strike, lockout or other labor or industrial disturbance (whether or not on the part of the employees of either party thereto), civil disturbance, future order claiming jurisdiction, act of the public enemy, war, riot, sabotage, blockage, embargo, inability to secure customary materials, supplies or labor through ordinary sources by reason of regulation or order of any government or regulatory body: (2) any changes in any applicable laws or the interpretation thereof; or (3) any flood, washout, explosion, or any other cause beyond the reasonable control of the party from whom performance is required, or any of its contractors or other representatives. Any prevention, delay or :;toppage in a party's performance hereunder due to Force Majeure shall excuse the perfi~rmance of the party affected for a period of time equal to any such prevention, delay oi• stoppage; provided, however, that during the period of any such delay or stoppage, the party whose performance hereunder is excused shall take all reasonable steps necessary to minimize the length of such delay or stoppage. 25.3 Governing Law. This Agreement, regardless of where executed or performed, shall be governed by and construed in accordance with the laws of the State of California. 25.4 Successors and Assigns. The terms, covenants and conditions contained in this Agreement shall bind and inure to the benefit of Artist and CITY and, except as otherwise provided herein, their personal r~:presentatives and successors and assigns. There are no third-party beneficiaries to this Agreement. City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page I S ~~f 23 25.5 Integrated Agreement; Modification. This Agreement contains all the agreements of the parties hereto relating to the subject matter addressed herein, and cannot be amended or modified except by a written agreement mutually executed between each of the parties hereto. 25.6 Non-waiver of Rights. The omission by either party at any time to enforce any default or right reserved to it, or to require performance of any of the terms, covenants, or provisions hereof by the other party at the tame designated, shall not be a waiver of any such default or right to which the party is eatitled, nor shall it in any way affect the right of the party to enforce such provisions thereafter. 25.7 Entire Agreement; Construction and Interpretation of Agreement. (a) The parties intend that this Agreement (including all of the attached exhibits, which are made a part of this Agreement) shall be the final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contem~~oraneous written or oral agreements or understandings. (b) Should any provisions or portions of this Agreement be held unenforceable or invalid, the remaining provisions acid portions shall be unaffected by such holdings. (c) The subject headings of the paragraphs of this Agreement are for convenience only and shall not affect the constn~ction or interpretation of any of its provisions. (d) The parties hereto agree to execute such further instruments and to take such further actions as may be reasonably required to carry out the intent of this Agreement. (e) This Agreement may be executed ni two or more counterparts, each of which shall be deemed original, but all of which taken together shall constitute one and the same instrument. (f) If more than one person executes tr~is Agreement on behalf of "Artist", the obligations and liabilities of each such person shall be joint and several as to all obligations and liabilities of Artist Hereunder. (g) For purposes of this Agreement, re~~sonable attorney's fees and legal costs and charges of CITY's City Attorney Office shall be based on fees regularly charged by private attorneys in the CITY with an equivalent level of expertise and practicing in law firms with approximately the same number of attorneys as the City Attorney's Office. City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page 16 of 23 IN WITNESS WHEREOF, the parties hereto ha~~e executed this Agreement on the day and year indicated below, effective as of the day the Ciity Manager executes the Agreement on behalf of the CITY. APPROVED AS TO FORM: ~~ -- Charles Kilian, City Attorney CITY OF CUPERTINO ARTIST Dated: ~~~ (~/~~~~~-,~~~> !~-~ Roger Berry City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page 17 of 23 EXHIBIT A SCOPE OIL WORK 1. INTENT OF AGREEMENT The intent of this Agreement is to define the work to be done in completing the schematic design, final design, fabricating, transportvig and installing an Art work for the City Center Park, as described in the Proposal, included here as EXHIBIT B. 2. DESCRIPTION OF ART WORK In summary, the Art work, "Perspectives", will be a fixed sculpture made of a stainless steel triangular hollow tube approximately 12 inches in section, wrapping in a figure 8 reaching about 20 feet in height from its anchor point on the ground. 3. SCOPE OF WORK The Artist will be responsible for (a) providing the CITY with the fmal design and installation measurements, (b) fabricating, transporting and installing, (c) consulting on the Art Work and (d) providing reports, documentation and description of maintenance requirements. 3.1 Consultation. Consult with and meet with the Project Manager as needed to coordinate the work of fmal design and fabrication with the Building Construction plans and schedules. 3.2 Fabrication by Subcontractor. Provide the CITY with the name, address and telephone number of each subcontractor prior to the ~~rtist beginning any work under this Agreement. Provide a description of the work to be performed and the amount of the subcontract and written copies of the agreements with each. 3.3 Suppliers. Provide the CITY with the name, address and telephone number of suppliers whose total invoices are expected to exceed $1,000 prior to beginning work under this Agreement. 3.4 Final Design. Submit the Final Design for approval by the CITY. All plans must be approved and bare the signature of an appr~~priate licensed design professional whenever necessary as required by the City's adopted California Building Code. The Final Design shall include, but not be limited to: 1. Complete budget breakdown 2. Updated photo montage or model of Art work 3. Specifications for the artwork components 4. Revised drawings of all components and elements of art work 5. Structural/engineering drawings City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page 18 of 23 6. Updated bids on fabrication and materials 7. Specifications for site conditions required prior to delivery of art work 8. Samples of materials 9. Evidence of Worker's Compensatic-n Insurance and Insurance Against Loss as required in Section 15.1. 3.5 Fabrication. Fabricate the work in conforniity with the specifications set forth in EXHIBIT B and the Final Design and as approved by the Project Manager. The work shall not deviate in size, design, or materia from these specifications unless the change is approved by the CITY. Provide access to t:he Project Manager to review the fabrication in progress and to approve the Art work as fabricated, prior to delivery of the Art work. 3.6 Transportation and Installation. Provide General Liability Insurance and Automobile Liability Insurance as required in Section 16, above. Consult with the Project Manager to coordinate the delivery and installation of the Art work. Review and approve the site conditions prior to the delivery and installation. Deliver and Install the Art work or consult with the General Contractor on the installation of the Art work. 3.7 Documentation and Maintenance Plan. Artist is to provide to the CITY Contact: a. A written report including completf; information regarding the intent of the Art work, the scale, materials, and processes used in the fabrication and installation of the work to the CITY for its registration files. b. Written specifications and recommendations for maintenance of the Art work and its systems. c. Two (2) complete sets of 35 mm. Color transparencies and 8x10" black and white photographs and negatives for program and archival purposes. d. An informational attribution plaque approximately 5x7" which identifies the artwork and acknowledges the City of Cupertino and the other funding sources. The text for the plaque, which meets Americans with Disabilities (ADA) standards, will be approved by the CITY. Artist shall be responsible for installing this plaque at a location approved by the CITY. City Center Pazk Roger Berry Artist Final Agreement, February 8, 2003 Page 19 ~~f 23 EXHIBIT B PROPCISAL GENERAL SPE(~IFICATIONS The following images generally indicate the shape and size of the sculpture. The proportions of the image change with the changing of the view point. From one vantage point, the sculpture appears to be a large open box or square resting on one corner. z,:-,:r: n y. y. .,,-„ :~ ~ t"+5; 5a+ .d? °,;,` _.,"~ :t 1 ~ac"~~, .~ ,~~ ,i ~~.~ ti r, Ar k k• ~ ~. sus "'~~ ~" ..' a w : 5 ~* ~ ^1 i.. k ~ ~ ~~ r fi.~ `a'',~ ~ ea 1 f "~ a From another vantage point, the sculpture appears to be a large figure 8. City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page 20 of 23 ~- .~~.~ City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page 21 ~~f 23 The previous two images were produced by comp~rter., but the next image is a photograph of a model representing the scale, the steel materials acid finishes. The sculpture consists of a continuous welded hollow stainless steel triangular tube, approximately 12 inches in section. Upon completion of the fabrication process, the various sections will be welded together and their joints ground smooth to give the appearance of a continuous form. The bottom portion of the tube will be treated differently to the extent that its wall thickness will be greater than the top to prevent unwanted vibration traveling to the upper portion of the tube. The bottom portion of the tube may also have a dampening material such as grout poured into it. The edges forming the triangle section will be crisp and smooth but rounded to prevent injury., especially at the lower levels where people might ~iormally come in contact with it. The sculpture will be securely anchored to the ground and the anchoring hardware will be covered by paving material found elsewhere in the park. This will provide the desired appearance that the sculpture is resting on the paved surface and also prevent unauthorized access to the anchor bolts. The anchoring system will be designed by a licensed structural engineer who will take into account the lateral forces of seismic events in this location. City Center Park Roger Berry Artist Final Agreement, February 8, 2003 Page 22 of 23 EXHIBIT C COMPEN;~ATION Contract Amount: $143,788 Payment Schedule: Payment #1: $21,568.00 Purpose: Advance on completion of schematic design. Submittals: Mutual execution of the Agreement. Approvals: City Council authorized City Manager to negotiate and execute Agreement on September 16, 2002. Payment #2: $71,894.00 Purpose: Completion of schematic design and working drawings, advance on fabrication of materials. Submittals: Schematic design; Evidence of Insurance Against Loss as required in Paragraph 16.1; Fabrication schedule for work: to be done by Artist and his subcontractors; Copies of agreements between the ~~rtist and his subcontractors and suppliers; Invoice for down payment on cost of materials. Approvals: Project Manager approval of Schematic Design; approval of evidence of insurance and payment. Payment #3: $35,974.00 Purpose: Completion of fabrication. Submittals: Evidence of General Liability Insurance and Automobile Liability Insurance as required in Paragraph 16.1; Artist's receipts from his subcontractors and suppliers for work done relative to the project to date, or letters or other documentation from each stating that each is being paid in a timely manner; Invoice for interim payment accompanied with copies of receipts for project expenses. Approvals: Project Manager approval of Artwork as fabricated and ready for delivery; CITY approval of insurance and payment:; to date. Payment #4: $14,352.00 Purpose: Completion of all work. Submittals: Installed Art work and plaque; Arti:-t's reports, maintenance plans and documentation; Copies of all of the Artist's agreements with subcontractors and suppliers whose total invoices exce~:d $1,000 for work done relative to the project, with letters or other documentation showing that each has been paid in full; lien releases from all subcontractors and. Invoice for final payment. Approvals: Project Manger approval of the instaalled Art work with completion of all terms and conditions of Agreement. City Center Pazk Roger Berry Artist Final Agreement, February 8, 2003 Page 23 of 23 --~.,..