19-094 Balance Studios, Inc., Public Art Augmented Reality Application3/25/20
SECOND AMENDMENT TO AGREEMENT 19-094
BETWEEN THE CITY OF CUPERTINO AND BALANCE
STUDIOS. INC. FOR PUBLIC AUGMENTED REALITY
APPLICATION SERVICES
This Second Amendment to Agreement 19-094 between the City of Cupertino and
BALANCE STUDIOS, INC., for reference dated 5/7/2019, is by and between the CITY OF
CUPERTINO, a municipal corporation(hereinafter"City") and Balance Studios, Inc., a Corporation
("Consultant")whose address is 2200 Dickinson Rd, Building 1, De Pere, WI, 54115, and is made
with reference to the following:
RECITALS:
A. On 5/7/2019, an agreement was entered into by and between City and Consultant
("Agreement 19-094") for Public Art Augmented Reality Application Services.
B. On August 15, 2019, City and Consultant executed a First Amendment to the
agreement for Public Art Augmented Reality Application Services.
C. Agreement 19-094 and the First Amendment are collectively referred to as the
"Agreement"unless otherwise indicated.
D. City and Consultant desire to modify the Agreement on the terms and conditions set forth
herein.
NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as
follows:
1. Maximum Compensation
Paragraph 4.1 of the Agreement is modified to read as follows: Maximum Compensation.
City will pay Consultant for Satisfactory performance of the Basic Services and Additional
Services,if approved, a cumulative total amount that will be capped so as not to exceed
$50,000 ("Contract Price"), as specified in Exhibit A, Compensation, attached and
incorporated here. The Contract Price includes all expenses and reimbursements and will
remain in place even if Consultant's actual costs exceed the capped amount. No extra work or
payment is permitted in excess of the Contract Price.
2. Except as expressly modified herein, all other terms and covenants set forth in the
Agreement shall remain the same and shall be in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this modification of
Agreement to be executed.
Balance Studios,Inc. ITY OF CUP. , O v
By—�I'' i s / By /Z�
Title Vice President Title GIS Manager
APPROVED AS TO FORM _
City Attorney
A T:
City Clerk
EXPENDIT1, TRE DISTRIBUTION
PO #2019-597 610-3,5-986 ,600-606
Original $4000
Amendment #1 : 0
Amendment, #2 -0
Total: $50000
EXHIBIT A
MLA Na
DIGITAL MEDIA STUDIOS
Change Order Form #1
This Change Order(the"Change Order") is an amendment to the Scope of Work Document for
Production Services to develop the Public Art Augmented Reality Application dated May 10, 2019 entered
into between the City of Cupertino("Cupertino')and Balance Studios, Inc. ("Balance").
1.0 Services to be Performed by Balance:
The parties hereto agree as follows to the changes and additions to the Public Art Augmented Reality
Application based on the meetings, phone calls and emails between Cupertino and Balance:
a. "Cooper"Character
y a;
• Balance is responsible for:
o Character design-similar to the
reference images provided here:
https:Hassetstore.unity.com/packages/3d/characters/robots/cute-robot-with-evil-twin-
9915
0 3D Modeling &Texturing
o Animated cycles of Cooper interacting with the Graphical User Interface(GUI).
■ Appx length per cycle—looping
■ Number of cycles—up to 10 cycles
o Integrating Cooper into the Augmented Reality space for each piece of public art.
o Important Note: Cooper floats in AR space. He will not be grounded at the floor of the
public art pieces.
• Cupertino is responsible for:
o Approval of:
■ Concept Art(2 round of revisions)
■ Final Art(1 round of revisions)
■ 3D Model(1 round of revisions)
1
b. Updated Functionality
• Cupertino will remove the physical plaques at each public art location.
• Balance to remove the scan QR code functionality that was to be used to activate the AR
content at each public art piece.
• Users will need to have location services activated to activate the AR content at the public art
piece.
2.0 Production Schedule: An updated production schedule will be provided.
3.0 The estimated contract price shall be increased as follows: $10,000.00
4.0 All other terms and conditions of the Scope of Work Document shall remain unaltered and in effect.
5.0 Payment Terms:
$5,000.00 to be added to the alpha test invoice
$5,0000.00 to be added to the final invoice.
All other terms and conditions of the Scope of Work Document shall remain unaltered and in effect.
This agreement supersedes all prior and contemporaneous agreements or representations,
written or oral, of the parties pertaining to this Project. This agreement may not be modified
except in writing signed by authorized representatives of both parties.
IN WITNESS WHEREOF,the parties hereto, being duly authorized, have executed this"Change
Order" intending to be legally bound s of the 251h of,Se tember 2019.
CLIENT APPROVAL:
9 2
FIRST AMENDMENT TO AGREEMENT 19-094
BETWEEN THE CITY OF CUPERTINO AND BALANCE
STUDIOS, INC., FOR PUBLIC ART AUGMENTED
REALITY APPLICATION SERVICES
This First Amendment to Agreement 19-094 between the City of Cupertino and Balance
Studios, Inc., for reference dated 5/7/2019, is by and between the CITY OF CUPERTINO, a
municipal corporation (hereinafter "City") and, Balance Studios, Inc., a Corporation ("Consultant")
whose address is 2200 Dickinson Road, Building 1, De Pere, WI. 54115, and is made with reference
to the following:
RECITALS:
A. On 5/7/2019, an agreement was entered into by and between City and Consultant
(hereinafter "Agreement") for Public Art Augmented Reality Application Services. The
agreement will expire on 8/30/2019.
B. The Agreement and the First Amendment are collectively referred to as the
"Agreement"unless otherwise indicated.
C. City and Consultant desire to modify the Agreement on the terms and conditions set
forth herein.
NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as
follows:
1. TERM
Paragraph 3.1 of the Agreement is modified to read as follows: This Agreement begins on the
effective date and ends on June 30, 2020,unless terminated earlier as provided herein.
2. Except as expressly modified herein all other terms and covenants set forth in the
P P Y � �
Agreement shall remain the same and shall be in full force and effect. 3
WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed.
BALANCE STUDIOS,INC. CITY OF CUPERTINO
Bycuck �� RECOMMENDE OR APPROV
Title Vice President By
Title GI Manager
APPROVED AS TO FORM
City Attorney
AT T:
City Clerk .2�
EXPENDITURE DISTRIBUTION
PO #2019-597 610-35-986 600-606
Original $40,000
Amendment #1: -
Amendment 92:
Total: $40A0
CITY OF -
DESIGN PROFESSIONAL SERVICES AGREEMENT (SINGLE)
WITH Balance Studios, Inc
CUPERTINO
I. PART
This Agreement is made and entered into as of 0510710 19
("Effective Date"), by and between the City of Cupertino, a municipal corporation ("City % and
Balance Studios, Inc. _ C'Consultant" ),
a Corporation for Public Art Au mented ReAty Application
("Project").
2. SERVICES
2.1 Basic Services. Consultant agrees to provide the Basic Services for the Project, which are set
forth in detail in the Scope of Services, attached here and incorporated as Xxhibit A. and as further
specified in ConsuItant's written .proposal as approved by City, except for any provision in the
Proposal which conflicts or is inconsistent with this Agreement and the Exhibits hereto, or as
otherwise expressly rejected by City.
2.2 Additional Services. City may request at any time during the Contract Time that Consultant
provide additional services for the Project, which are not already encompassed, expressly or implicitly,
in the Agreement, the Scope of Services, or the Proposal ("Additional Services"}, Additional Services
must be authorized in writing by City and Consultant will not be paid for unauthorized Additional
Services rendered. Additional Services are subject to all the provisions applicable to Basic Services,
except and only to the extent otherwise specified by City in writing.
All references to "Services" in the Agreement include Basic .services and Additional Services, unless
otherwise stated in writing. The Services may be divided into separate sequential tasks, as further
specified in this Agreement, the Scope of Services, and Consultant's Proposal.
Consultant is solely responsible for its errors and omissions and those of its subconsultants, and must
promptly correct them at its soil: expense. Consultant must take appropriate measures to avoid or
mitigate any delay, Iiabiiity, and costs resulting from its errors or omissions.
3. TIME OF PERFORMANCE
3.1 Term. This Agreement begins on the Effective Date and ends on A tigust 34 2019
unless terminated earlier as provided herein ("Contract Time").
3.2 Schedule of Performance, All Services must be provided within the times specified in Exhibit
B, Schedule of Perfortnan", attached and incorporated here. Consultant roust promptly notify c4 of
any actual or potential delay in providing the Services as scheduled to afford the Parties adequate
opportunity to address or mitigate delays. If the Services are divided by tasks, Consultant roust begin
work an each separate task upon receiving City's Notice to Proceed CWT0"J, and must complete each
task within the time specified in Exhibit B.
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3.3 Time is of the esseaee for the performance of all the Services. Consultant mu, ,[ have sufficient
time, resources, and qualified staff to deliver the Services on time.
4. COMPENSATION
4.1 Maximum Compensation, City will pay Consultant for satisfactory performan of the Basic
Services and Additional Services, if approved, a cumulative total stnount that will be capped so as not
to exceed $ 40,000 (` Contract Price'), as specified in Exhibit C, Compensation, attached
and incorporated here. The Contract Pricc includes all expenses and reimbursements and wi11 remain in
place even if Consultant's actual costs exceed the capped amount, No extra work or payment is
permitted in excess of the Contract price.
4.2 Rasie Services. Ury will pay Consultant S 40,000 ('Lump Sum Price") for
the complete and satisfactory performance of the Basic Services in accordance with Exhibit C. The
Lump Sum Price is inclusive ofaII time and expenses, including, but not limited to, subConsultant's
costs, materials, supplies, equipment, travel, taxes, overhead and profit. If the Basic Services are not
fully completed, Consultant will be compensated a percentage of the Lump Sum Price proportionate
to the percentage of Basic Services that were completed to City's reasonable satisfaction,
4.3 Additional Services. City has the discretion, but not the obligation, to authorize Additional
Services up to an amount not to exceed 0 . Additional Services provided to City's
reasonable satisfaction will be compensated on a lump sum basis or based on time and expenses, in
accordance will the Hourly Rates and Reimbursable Expenses Schedules included in Exhibit C. If
paid on an hourly basis, Consultant will be compensated for actual costs only of normal business
expenses and overhead, with no markup or surcharge ("Reimbursable Expenses'). Consultant will not
be entitled to reimbursement for copying, printing, faxes, telephone charges, employee overtime, or
travel to City offices or to the Project site.
4.4 invoices and Payments. Monthly invoices must describe the Services completed and the
amount due for the preceding month. City will pay Consultant within 30 clays following receipt of a
properly submitted and approved invoice for Services. The invoice roust separately itemize and
}provide subtotals ror Basic Services and Additional Services, and must state the percentage of
completion for each task, as specified in Exhibit C. City will natify Consultant in writing of any
disagreements with the invoice or the stated percentage of completion of tasks. If the disagreement is
unresolved, City will pay Consultant only for the undisputed portion of the Services. Disputed amounts
shalI be subject to the Dispute ]resolution provision of this Agreement.
a. Time and Expenses. For Additional Services provided on an hourly basis, each invoice
must also include, for each day of Services provided: (i) frame and title of each person
providing Services; (ii) a succinct summary of the Services performed by each person; (iii)
the time spent per person, in 30 minute increments; (iv) the hourly billing rate or Sub -
Consultant charge and payment due; and (v) an itemized Iist with amounts and explanation
for all permitted reimbursable expenses.
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Ae,Ogrr Pru�essfonaf r}grernwnr (sirrgfe) lRev. Aduyt 2018
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b. Rates and Receipts. All hourly rates and reimbursable expenses must. conform to the C ity-
approved rates set forth in Exhibit C , which will be in effect for the entir+c Contract Time,
Each invoice must attach legible, dated receipts for Reimbursable Expcnses.
5. INDEPENDENT CONTRACTOR
5.1 Status. Consultant is an independent Consultant and not an employee, pamcr, or joint venture
of the City+. Consultant is solely responsible for the means and methods of performing the Services and
shall exercise full control over the employment, direction, compensation and discharge of all persons
assisting Consultant in performing the Services. Consultant is not entitled to health benefits, worker's
compensation, retirement, or any City benerit.
5.2 Qualifications and Standard of Care, Consultant represents on behalf of itself and its
subConsultants that they have the qualifications and skills to perform the Services in a competent and
professional manner, as exercised by design professionals performing similar services in the San
Francisco Bay Area. Services may only be performed by qualified and experienced personnel or
subconsultants who are not employed by City and do not have any contractual relationship with City
excepting this Agreement. All Services roust be performed as specified to Cit's reasonable satisfaction.
5.3 Permits and Licenses. Consultant warrants on behalf of itself and any subComultants that they
are properly licensed, registered, and/or certified to perform the Services, as required by law, and that
they have procured it valid City Business License,
SA Sulu ousultants. finless prior written approval from City is obtained, only Consultant's
employees and subonsultants whose names are included in this Agreement and incorporated Exhibits
may provide Services under this Agreement. lwonstultant must require all subConsultants to Cornish
proof of insurance for workers' compensation, commercial liability, auto, and professional liabiI ity in
reasonable conformity to the insurance required of Consultant. The teens and oanditions of this
Agreement shall be- binding on all subConsultants relative to the portion of their work.
5.5 Tools, Materials and Equipment. Consultant will supply and shall be responsible for all tools,
materials and equipment required to perform the Ser-viues under this Agreement.
5.6 Payment of Takes.. Consultant krtList pay income taxes on the money earned under this
Agreement. Upon City's request, Consultant will provide proof of payment and will iridemnify City
for any violations pursuant to the indemnity provision of this Agreement.
5.7 Errors anti Omissions. Consultant is solely responsible for its errors and omissions and these
of its SubConsultunts, and must take prompt measures to avoid, mitigate, and correct diem at its sole
expense.
6. PROPRIETARY/CONFIDENTIAL INFORMATION
During the Contract Time Consultant may have access to private or confidential information owned or
c-ontroIled by the City, which may contain proprietary or confidential details, the disclosure of which to
third parties may be damaging to City. Consultant shall hold in confidence all City information and use
City Project Public Arf Ang, pvaed Reality Appiiwfien
Design Prapssiowl-(gFemene al�ww lRev, may, ma
Page a of I a
it only to perform this Agreement. Consultant shall exercise the same standard of care to protect City
information as a reasonably prudent Consultant would use to protect its own proprietary data.
7. OWNERSHIP OF MATERIALS
7.1 Property bights. Subject to City meeting its payment obligations for the Services, any intescst
(including copyright interests) of Consultant in any product, memoranda, study, report, map, plan,
drawing, specification, data, record, document, or other information or work, in any mad iurn, prepared
by Consultant under this Agreement ("Work product"), will be the exclusive property of the City and
shal I not be shown to a third -party without prior written approval by laity
7.2 Copyright. To the extent permitted by Title 17 of U.S. Code, all copyrights to the Work
Product prepared/created by Consultant and its SubConsultants and all copyrights in such Work
Product shall constitute City property, if it is determined under federal law that the Work Product is
not "works for hire", Consultant and SubConsultants hereby assign to City a]I copyrights to the fork
Product when and as created_ Consultant may retain copyrights to its standard details, but hereby
grants City a perpetual, ton -exclusive license to use such details.
7.3 Patents and Licenses. Consultant must pay royalties or license fees required for authorized
use of any third party intellectual property, including but not limited to patented, trademarked, or
copyrighted intellectual property if incorporated into the Services or boric product of this Agreement.
7.4 lie -Use of Work Product. Unless prohibited by law and without waiving any rights, City may
use or modify the Work Product of Consukmt and its SubConsultants to execute or implement any of
the following, but Consultant shall not be responsible or liable for Crity's ruse of Work Product:
(a) For work related to the original Services for which tvorisultant was hired;
(b) To complete the original Services with City personnel, agents or other Consultants;
(c) To make subsequent additions to the original Services; and/or
(d) For other City projects.
7.5 Deliverables and Format. Electronic and hard copies of the Work Product constitute part of
the Deliverables required under this Agreement, which shall be provided to City on recycled paper and
copied on both sides, except for one single -sided original, Large-scale architectural plans and similar
items must be in CAD and PDF formats, and unless otherwise specified, other documents must be in
Microsoft Office applications and PDF formats.
8. RECORDS
8.1 Consultant must maintain complete, accurate, and detailed accounting records relating to the
Services and Compensation, in accordance with generally accepted accounting principles and
procedures. The records must include detailed information about Consultant's performance,
benchmarks and deliverables. The records and supporting documents must be kept separate from other
files and maintained for a period of four years from the date of City's final payment.
8.2 Consultant will provide City full access to Consultant's books and records for review and audit,
to make transcripts or copies, and to conduct a preliminary exam iriatiors of all the work, data,
documents, proceedings, and activities related to this Agreement. if a supplemental examination or
City 1'rojeel Public Xrf Augmented Reality Applicr non
Dr,xigu Profr- anal rlgmemeal (single) 1Ray. belay, 2918
Page 4 of t0
audit of Consullant's records discloses non-cornpIisnee with appropriate intemaI financial controls, a
contract brcach, or a faihire to act in good faith. City will be entitled to recover from Consultant the
costs of the supplemental examination. If this is a lump sum fee Agreement, City will be provided
access to records of reimbursable expenses and the inamments of scrvicefdeIiverables for review and
audit. This Section survives the expirationElterniination of this Agreement.
9. ASSIGNMENT
Consultant shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein,
directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any
attempt to do so will be null and void, Any changes related to the Financial control or business natum
of Consultant as a legal entity will be considered an Assignment subject to City approval, which shall
not be unreasonably withheld. For purposes of this provision, control means 50% or more nf'the voting
power of the business entity. 'Ibis Agreement binds Consultant, its heirs, successors and assignees.
10. PUBLICITY 1 SIGNS
Any publicity generated by Consultant for the project under this Agreement, during the term of this
Agreement and for one year thereafter, will reference the City's contributions in making the project
possible, The words "City of Cupertino" will be displayed iri all pieces of publicity, including flyers,
press releases, posters, brochures, public service announccrnent% interviews and newspaper articles.
o signs may be hosted, exhibited or displayed on or about City property, except signage required by
law or this Agreement, without prior written approval from the City.
11. INDEMNIFICATION
11.1 To the fullest extent allowed by law and except for losses caused by the sole or active
negligence or willful misconduct of City personnel, Consultant agrees to indemnify, defend, and hold
harmless the City, its City Council, boards and conim i ss ions, officers, officials, employees, agents,
servarits, volunteers and consultants (collectively, "Indemnitees" ), as follows:
a. Inderrinity Obligations Subject to Ovil Code Section 2792.8. With respect to the
Services performed in connection with the Agreement, Consultant shall indemnify, defend, and hold
harmless Inde ninitees from and against any and ail liability, claims, actions, causes of action, deFnands
or charges whatsoever against any lndemnitee, including any injury to or death of airy person or
damage to property or other liability of any nature {collectively, " Liability"), that arise out of, pertain,
to, or relate to the negligence, recklessness, or willful misconduct of Consultant, its officers, officials,
employees, agents or SubConsultants. Such costs and expenses shall include reasonable attorney fees
for legal counsel of City's choice, expert fees, and all other costs and fees of litigation, In addition to
its indemnity obligations, Design Professional will provide its immediate and active cooperation and
assistance to the City, at no additional cast to the City, in analyzing, defending, and resolving such
Liability.
b. Claim-9 Involving Intellectual Property. Consultant shall indemnify, defend, and hold
harmless Indemnitees from and against any claim involving intellectual property, infringement or
violating o f a United States patent right or copyright, trade secret, trademark, or service mark or other
proprietary or intellectual property rights, which arises out of, pertains to, or relates to t;onsultant's
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