montague pedestrian overcrossing mural $15,000 ......call for artists montague pedestrian...

CALL FOR ARTISTS

Montague Pedestrian Overcrossing Mural

$15,000 Commission

CALL ISSUE DATE: December 11, 2020

CALL DEADLINE: January 11, 2021

The City of Milpitas invites qualified professional artists based in the Bay Area (Santa Clara County, plus Alameda, Contra Costa, Marin, Napa, Santa Cruz, San Francisco, San Mateo, Solano and Sonoma counties) to submit designs for a painted or mixed media mural for the Montague Pedestrian Overcrossing pedestrian entrance area, leading to the Milpitas Bay Area Rapid Transit (BART) station.

BACKGROUND:

The City of Milpitas is located in Silicon Valley, along the eastern foothills between Fremont and San Jose. Once a small agricultural community and crossroads rest stop for travelers, Milpitas is now one of the fastest growing cities in California and one of the most ethnically diverse. Milpitas is a home to advanced manufacturing and technology corporations, including the semiconductor firm KLA-Tencor, cybersecurity firm FireEye, and electronics manufacturer Flex Ltd. The Milpitas Metro district, where this project is located, is representative of these rapid societal and economic changes. Of particular historical note, this project is very near to the site of the Ford Motor Assembly Plant, now the Great Mall. Not only did the auto plant fuel Milpitas’ growth through the late 1950s to 1970s, it also helped cement Milpitas reputation as a socially progressive community after its union workers successfully convinced the City to allow the first planned racially integrated housing development in the country. Other chapters of Milpitas history that may be of interest include: the Muwekma Ohlone as original inhabitants of the area; its transformation to a ranching and farming community with Spanish ranchos, including at the site of present-day Higuera Adobe Park and Alviso Adobe Park; and cultural subgroups that have settled in Milpitas, each adding to the City’s rich cultural fabric. Additional information about Milpitas diversity is available on the US Census website. PROJECT DESCRIPTION: The Montague Pedestrian Overcrossing is an enclosed pedestrian bridge over Montague Expressway, providing easy access from the new Milpitas Transit Station parking garage and Milpitas BART station to the surrounding Milpitas Metro district. Just north of the overcrossing is the Great Mall, the largest enclosed outlet and value retail shopping, entertainment and dining destination in Northern California. The area includes a lot of newer, high-density housing and is being developed as a pedestrian and cyclist friendly neighborhood with a lively, urban atmosphere. Milpitas Metro’s growing Innovation district provides a fertile environment for research and development companies. The Montague Pedestrian Overcrossing structure serves as an informal gateway to Milpitas from San Jose to the south. As such, the Arts Commission has expressed interest in, but is not requiring, artwork that celebrates the history and identity of the City of Milpitas. This public art mural will be at the base of the north stair tower and exterior of the electrical room. It is ground level and highly visible to both pedestrians and motorists. The total area available is approximately

https://www.census.gov/quickfacts/milpitascitycaliforniahttps://www.vta.org/projects/bart-sv/phase-i/montague-expressway-pedestrian-overcrossing

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629 square feet. The surface is a prefinished metal wall. See Attachment A for construction drawings and site specifications. The actual overcrossing portion of the structure features a colorful architectural enhancement by San Jose architect Bill Gould. A series of metallic fins form a colorful rainbow when viewed at angle. The fins vary in height and are arranged so their tops mimic the tops of hills to the east of the bridge. There has been some discussion of adding artistic lighting to the bridge in the future. The Arts Commission is interested in colorful mural artwork that will complement the existing architectural enhancement. They have also expressed interest in mural artwork which is dynamic, perhaps appearing different at different times of day or year or from different directions such as enhanced with glow-in-the-dark, reflective or heat sensitive paint. DESIGN SPECIFICATIONS:

• Artwork must be suitable for all ages and in keeping with community values.

• Artwork must be durable (fade resistant paint, anti-graffiti coating required).

• Any lighting enhancements must be included in the cost of the project.

• Artwork may be either painted directly on structure or on removable panels to be affixed to structure.

ART SELECTION PROCESS: Staff will review applications for completeness. The Arts Commission will review designs at its January 25, 2021 meeting and make recommendations to the City Council. If necessary, additional public comment may be sought online or in-person at any point in the process. City Council is expected to review the recommended design and approve an agreement at its regular meeting on February 23, 2021. This timeline is subject to change. Artist will be asked to sign a Public Art Agreement, including standard Liability Waiver and Release, obtain a Milpitas business license and provide proof of insurance. See Attachment B to review contract terms. The City of Milpitas reserves the right to reject any or all applications or proposals, or to terminate the selection process without prior notice. The City of Milpitas reserves the right to terminate the project at any time.

PROPOSAL SPECIFICATIONS:

The proposal shall be submitted electronically in written form via email, file transfer or on a thumb drive. Acceptable file formats are .pdf, .jpeg, .doc, .ppt, .htm, .mp4, .mov, .wmv, and .xls. Your proposal must include:

1. Qualifications

• Professional Resumes for lead artist and artist assistants working on the project.

• Portfolio samples of up to six projects, similar in scope. Include artwork name, location, commissioning body, installation date, price and reference contact information (name, email, phone).

2. Proposal Narrative Please provide the following:

• Artist’s Statement describing inspiration, meanings, symbolism and/or historical context for the piece. (One-page max)

• Proposed dimensions

• Proposed materials

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• Proposed muralist(s), including all assistants who will be painting

• Recommended installation procedure, including any special equipment required

• Expected lifespan of the artwork

• Recommended annual and sporadic maintenance necessary to achieve expected lifespan

• How/if the public is encouraged to interact with the artwork

• How/if the public is prohibited from interacting with the artwork, including safety measures

3. Rendering / Materials Information

• Illustrations showing both day and nighttime views of the artwork

• If appropriate, video rendering of mural viewed from a vehicle traveling westbound on Montague Expressway.

• Proposed palette, including paint brands

• If appropriate, model or sample of any mixed media materials or items that will be affixed to the mural

4. Timeline Please provide a timeline for fabrication and installation. We expect a contract to be offered in February 2021. Desired installation is Spring-Summer 2021.

5. Budget

Please provide a complete, itemized budget, not to exceed $15,000. Your budget must cover everything you will need to design, fabricate and install the work. Your itemized list could include:

• Artist’s fee

• Any studio assistants

• Any field coordination

• Additional renderings, CAD drawings and models

• Engineering – structural, electrical, mechanical

• Contractor services* – construction, electrical, mechanical, plumbing

• Materials and supplies

• Hardware

• Fabrication

• Artwork transportation

• Art installation

• Equipment rental

• Interpretive plaque or signage (City provides standard artwork identification plaque.)

• Administrative expenses directly related to this project: insurance, permits or certifications, additional studio space

• Artist travel to Milpitas. Indicate the number of visits proposed and purpose of each.

• Project contingency

* Public Art projects can be subject to Department of Industrial Relations rules and prevailing wage. This project is not expected to trigger DIR rules, but please be advised if contractor services are to be used.

SUBMISSION INSTRUCTIONS / DEADLINE:

All proposals must be submitted electronically. All materials must be received at by 5:00 p.m. on Monday, January 11, 2021, 5 p.m. It is the responsibility of the applicant to verify receipt of the proposal prior to deadline. Please note, City Offices are not open for in-person deliveries at this time. USPS deliveries are held for pickup at the Post Office, which can result in delayed delivery. Email submission is strongly recommended.

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Any packages containing any related material shall be plainly marked on the outside in the following manner: “Montague Pedestrian Overcrossing Mural.” Electronic copies may be delivered via email, file sharing website or on a thumb drive. Thumb drives will not be returned.

RETURN YOUR PROPOSAL, INCLUDING SIGNED COVERSHEET TO:

Mail: Montague Pedestrian Overcrossing Mural Attn: Tegan McLane, Community Engagement and Inclusion Administrator

Milpitas Community Center 457 E. Calaveras Blvd. Milpitas, CA 95035

Phone: office - (408) 586-3212 cell- (408) 209-5321 Email: [email protected]

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PROPOSAL COVERSHEET:

Montague Pedestrian Overcrossing Mural Project Proposals will not be accepted after January 11, 2021 at 5:00 p.m.

Artist: ____________________________________________________________ Co-Artist, if applicable_________________________________________________ Co-Artist, if applicable_________________________________________________ Address: _______________________________________________________________

City: __________________________________ State: ___________ Zip: ____________

Phone: _________________________________ Fax: __________________________

E-mail Address: ____________________________Website________________________

Signature of Artist: _____________________________________________ Date: ________________

Signature of Co-Artist, if applicable: _________________________________ Date: ________________

Signature of Co-Artist, if applicable: _________________________________ Date: ________________

Attachment A

akleiberDistance Measurement9.04 ft




akleiberText Box10.07 FT


akleiberText Box13.45 FT.




akleiberText BoxEast Elevation


akleiberText Box9.51FT

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PUBLIC ART AGREEMENT BETWEEN THE

CITY OF MILPITAS AND

________________________

This Agreement is entered into on ______________________________, 2019 by and between the City of Milpitas, a municipal corporation of the State of California (“City”), and _______________________, an individual (“Artist”), with its principal place of business at [Street Address], [City], [State] [Zip Code].

RECITALS

WHEREAS, Artist desires to perform and assume responsibility for the provision of public art required by City on the terms and conditions set forth in this Agreement. Artist represents that it is experienced in providing public art services to public clients and is familiar with the project; and

WHEREAS, City desires to engage Artist to render such public art [insert description of the artwork here] (“Artwork”) for the [insert site description here] (“Site”) as set forth in this Agreement.

NOW, THEREFORE, City and Artist, for the consideration and under the conditions hereinafter set forth agree as follows:

SECTION 1. SCOPE OF SERVICES

1.1 Duties.

1.1.1 Artist is hereby retained to furnish all labor, materials, tools, equipment, services, and incidental and customary work necessary to design, fabricate, transport and install the Artwork (“Services”) on the Site in accordance with the schedule of completion as described in Exhibit A attached hereto and incorporated herein by reference.

1.1.2 Artist shall be responsible for complying with all Federal, State and local laws, ordinances, statutes and regulations, including, but not limited to zoning and environmental requirements, and for obtaining all required licenses, permits, or other authorizations applicable to the performance of Artist’s Services under this Agreement.

1.1.3 Artist shall execute and deliver to City any instruments that City may reasonably require to confirm ownership of the Artwork.

1.2 Maintenance; Warranty.

1.2.1 Artist will consult City during the design of the Artwork to ensure that all maintenance requirements will be reasonable in terms of time and expense. The Artwork must be durable, taking into consideration that the Site may be an exposed, unsecured public space.

Attachment B

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1.2.2 Following completion of the Artwork, Artist shall provide City with detailed written maintenance instructions setting forth the minimum maintenance and preservation standards.

1.2.3 Following installation of the Artwork, Artist agrees to sign and submit photographs of the Artwork to City certifying the Artwork’s authenticity.

1.2.4 Final acceptance is effective on the date City issues written notification of final acceptance or thirty (30) days after Artist has sent City written notice of completion, whichever first occurs, unless City, upon receipt of Artist’s notice of completion, provides Artist with written notice specifying and describing any incomplete Services before thirty (30) days have elapsed.

1.2.5 Following final acceptance of the Artwork by City, City shall be responsible for the maintenance of the Artwork. Artist agrees to provide both written and verbal advice to City at no charge regarding the maintenance of the Artwork.

SECTION 2. COMPENSATION AND PAYMENT SCHEDULE

2.1 Artist Compensation.

City shall pay to Artist a fixed fee of _______________________ as full compensation for all Services to be performed and materials to be furnished by Artist under this Agreement. The fee shall be paid as described in Exhibit B, attached hereto and incorporated by this reference. All requests for payment must be accompanied by a detailed invoice. Artist shall provide City with Artist’s Tax Identification Number and any proof of such number as requested.

2.2 Artist’s Expenses.

Artist shall be solely responsible for all labor, materials and equipment necessary for completion of the Artwork, and for all expenses including, without limitation, permits, insurance, all travel costs by Artist and Artist’s agents and employees, and for proper performance of the Services required under this Agreement. 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.

2.3 Retention and Audit of Records.

Artist shall retain records pertinent to this Agreement and make such records available upon request by City and/or Auditor General of the State of California, or representative of any of these offices, for a period of five (5) years after final payment.

SECTION 3. TIME OF PERFORMANCE

3.1 Duration.

The Services required of Artist as set forth in Section 1 and Exhibit A shall be completed in accordance with the schedule described in Exhibit A. Artist shall not commence performance

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of any Services until the City has issued a written Notice to Proceed to Artist providing a commencement date for performance of Services by Artist.

3.2 Time Extension.

City and Artist may mutually agree to time extensions of obligations under this Agreement in writing.

3.3 Damages for Delayed Performance.

Subject to reasonable proof and documentation confirming the same submitted by the City, Artist shall be liable for all incidental and consequential damages resulting, directly or indirectly, from delays in performance caused by Artist’s acts or omissions. Damages may include, but are not limited to, the cost to retrofit the Artwork installation area should Artist not meet the installation schedule as specified in Exhibit A. Artist shall not be liable to City for damages resulting from delays caused by force majeure or by acts or omissions of the City or third party, except to the extent Artist failed to reasonably mitigate such damages.

3.4 Illness, Injury, Death, or Incapacity.

Should Artist die, become ill, injured or otherwise incapacitated (collectively, “incapacitated”) such that Artist is unable to work for any period not exceeding 30 days (whether consecutive or non-consecutive), any delay arising out of such incapacity will be allowed by the City whenever it is practicable to do so, depending on the facts and circumstances, and at City’s discretion. City may require Artist to provide medical certification of any claimed incapacity. In the event Artist is incapacitated such that Artist is unable to work for a period exceeding a total of 30 days (whether consecutive or non-consecutive), City may, at its option, undertake to complete and install the Artwork in Artist’s absence, so long as the final Artwork is substantially similar to that designed by Artist. If City undertakes to complete the Artwork, City shall give due consideration to Artist’s suggestions, and Artist may disclaim authorship of the Artwork. If City exercises its option to implement the Artwork in Artist’s absence, any compensation paid or payable to Artist shall be reduced by the costs and expenditures of the City in completion and installation of the Artwork. In case of incapacity exceeding 30 days, the following person shall be Artist’s representative vis-à-vis the City for purposes of this Section unless otherwise directed in writing by Artist:

[Insert Name] [Insert Address] [Insert City, State, Zip Code] [Insert Phone] [Insert E-mail]

3.5 Termination.

If either party to this Agreement shall willfully or negligently fail to fulfill in a timely and proper manner or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, the other party shall have the right thereupon to terminate this Agreement by giving written notice to the defaulting party of its intent to terminate and, specifically, the grounds

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for termination. The defaulting party shall have 30 days after receipt of the notice to cure the default. If default is not cured, this Agreement shall terminate. In the event of City’s default, City shall compensate Artist for all Services performed by Artist prior to termination, in accordance with the installment payment schedule described in Exhibit B. In the event of Artist’s default, all products prepared and submitted or prepared for submission by Artist under this Agreement shall at City’s option become City’s property. City shall retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Artist pursuant to this Agreement following termination or expiration of this Agreement. Artist shall not be relieved of liability to City for damages sustained by City by virtue of Artist’s breach of this Agreement. In such event, City may reasonably withhold payments to Artist until the exact amount of damages due City from Artist is determined. In addition and following termination or expiration of this Agreement, the City shall retain the right to have the Artwork completed; however, the Artist shall retain the copyright in the Artwork.

SECTION 4. INSURANCE AND INDEMNIFICATION

4.1 Insurance.

Artist shall not commence work for City until it has provided evidence satisfactory to City that it has secured all insurance required under Exhibit C attached hereto and incorporated herein by reference. In addition, Artist shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under Exhibit C.

4.2 Indemnification.

Artist shall indemnify, protect, defend and hold harmless City, its officials, employees and agents from and against all liabilities, obligations, losses, damages, judgments, costs or expenses, including attorney’s fees, court costs and other litigation costs arising from, in connection with or caused by any personal injury or property damage caused, directly or indirectly, by any act or omission of Artist, or any infringement of patent, copyright, trademark, trade secret or other proprietary, moral or intellectual property right caused by Artist or Artist’s employees, agents, contractors, or subcontractors, or in connection with the Artwork.

SECTION 5. RIGHTS, OWNERSHIP, AND INTEREST

5.1 Ownership and Moral Rights.

Title to the Artwork shall pass to City upon final acceptance pursuant to Section 1.2.4. All materials paid for and produced under this Agreement including, without limitation, all studies, drawings, designs, models, reports, data, maps, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents in electronic or any other form, that Artist prepares, obtains or submits this Agreement, shall be City property. It is understood and agreed that the documents and other materials, including, but not limited to, those described above and prepared pursuant to this Agreement, are prepared specifically for City and are not necessarily suitable for any future or other use. City and Artist agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties, unless subject to disclosure under applicable laws. Artist hereby agrees to deliver those documents to City upon termination

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of the Agreement. Artist bears the risk of damage to or loss of the Artwork until City’s final acceptance under Section 1.2.4 and shall take such measures as necessary to protect the Artwork from damage until final acceptance.

Artist shall retain all rights under the Copyright Act of 1976 for original works produced under this Agreement except ownership and possession and as otherwise provided in this Agreement. Artist’s copyright shall not extend to predominantly utilitarian aspects of the Artwork, such as landscaping, elements, furnishings, or similar objects. If Artist is comprised of two or more individual persons, the individual persons shall be deemed joint authors of the Artwork. City and its assigns are not responsible for any third party infringement of Artist’s copyright or for protecting the intellectual property rights of Artist. Any registration of a copyright, including costs, shall be the sole responsibility of Artist.

5.2 Artist’s Waiver.

Artist waives any and all rights and claims, with respect to Artwork produced under this Agreement arising against City, its elected and appointed officials, employees, agents and assigns arising under title 17 U.S.C. Section 106A (commonly known as the Federal “Visual Artist Rights Act of 1990”), California Civil Code Section 987 (commonly known as the “California Art Preservation Act”), and any other local, State, Federal or international laws that convey rights of the same nature as those conveyed under the California Civil Code or any other type of moral right protecting the integrity of works of art.

Artist understands that the Artwork is to be installed at a Site on public property, and that the operation, management, or other circumstances of the Site, could result in significant alteration of the Artwork or Site. Without limiting the generality of the preceding paragraph, Artist hereby agrees that City may alter the location of the Site, move the Artwork to a different Site, or remove the Artwork altogether at City’s sole reasonable discretion.

Artist hereby agrees that City has the right to alter the Artwork or City may retain another qualified artist to alter the Artwork, with or without Artist’s permission. If the Artwork is altered without Artist’s permission or falls below acceptable public display standards, Artist may disavow authorship of the Artwork by written notice to City. For purposes of this Agreement, the term “alter” or “alteration” with respect to the Artwork shall mean: alter, repair, restore, modify, remove, relocate, sell, dispose of, distort, destroy, mutilate, or deface. City has no obligation to pursue claims against third parties to remedy or prevent alteration of the Artwork. However, City, as owner of the Artwork, may pursue claims against third parties for damages or to restore the Artwork if it has been altered without City’s authorization.

5.3 Reproduction.

Artist grants to City and its assigns an irrevocable license and right to duplicate, make, display, distribute, and authorize the making, display, and distribution of reproductions of the Artwork for commercial or noncommercial purposes, including, but not limited to advertising, brochures, media publicity, educational and promotional materials, postcards, booklets, catalogues and other similar publications. This provision is intended to constitute a transfer of the right to reproduction, and this Agreement is intended to be and shall be deemed to constitute the document in writing required by Civil Code Section 982(c). All images or reproductions of the Artwork by

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the City shall contain a credit to the Artist and a copyright notice substantially in the following form: “[ARTIST NAME] ©, [DATE].” The Artist shall include a credit that substantially reads “An original work commissioned by the City of Milpitas, California” in the Artist’s reproductions or images of the Artwork.

City shall have the right to use Artist’s name, likeness, and biographical information, in connection with the display or reproduction and distribution of the Artwork, including all advertising and promotional materials.

5.4 Royalty Rights.

City may use Artwork for any purpose, including commercial purposes, pursuant to Section 5.3. City is not obligated to make any royalty payments to Artist except as required by law.

SECTION 6. ARTIST’S REPRESENTATIONS AND WARRANTIES

6.1 Artist shall perform all work under this Agreement as an independent contractor and not as an agent or an employee of City. Any additional personnel performing the Services under this Agreement on behalf of Artist shall not be employees of City and shall at all times be under Artist’s exclusive direction and control.

6.2 Artist represents and warrants that:

(i) Artist is the sole owner of the Artwork and any copyrights and has the full power to enter into and execute this Agreement;

(ii) The Artwork is unique and original and solely the result of the artistic effort of Artist, except as otherwise disclosed in writing to City, does not infringe upon any copyright or rights of any person and is free and clear of any liens or disputes related to property, intellectual or any other rights;

(iii) The Artwork, or a duplicate thereof, has not been accepted for sale elsewhere.

(iv) The Artwork is free from defective, hazardous or inferior materials and workmanship or inherent vice or qualities that cause or accelerate deterioration, except as otherwise disclosed in writing to City, and will not pose a danger to public health and safety.

(v) Reasonable maintenance of the Artwork will not require procedures in excess of those described in the maintenance and preservation recommendations submitted by Artist pursuant to Section 1.2.2. The Artwork will not experience irreparable damage nor fall below an acceptable standard of public display with reasonable maintenance as recommended by Artist and normal exposure to the elements.

(vi) The Artist guarantees the Artwork against all defects in its design, workmanship and materials for a period of three (3) years following final acceptance. If any such defects occur within this time period, the Artist agrees to promptly and satisfactorily repair, correct, or replace the defective portion of the Artwork at the Artist's own expense. Repairs to any

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defective portion of the Artwork shall begin within thirty (30) days of receiving notice of the need for repair. If necessary, the Artist may substitute others to perform the repair work upon the City Manager’s approval.

(vii) No person has been employed or retained to solicit or secure this Agreement for commission, percentage, brokerage or contingent fee and that no member of City has any interest, financially or otherwise in Artist’s business.

(viii) Artist is aware of the requirements of California Labor Code Sections 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Artwork is being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Artist agrees to fully comply with and to require its consultants to fully comply with such Prevailing Wage Laws. City shall provide Artist with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement upon request. Artist shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Artwork available to interested parties upon request, and shall post copies at the Artist’s principal place of business and at the project site. Artist shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure of the Artist or its consultants to comply with the Prevailing Wage Laws. It shall be mandatory upon the Artist and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Section 1776), hours of labor (Labor Code Sections 1813 and 1815), contractor registration (Labor Code Sections 1725.5 and 1771.1) and debarment of contractors and subcontractors (Labor Code Section 1777.1).

SECTION 7. SOLICITATION

Artist agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through written materials.

SECTION 8. NON-DISCRIMINATION

Artist shall not discriminate, in any way, against any person on the basis of race, sex, color, age, religion, sexual orientation, disability, ethnicity, national origin, or disability in connection with or related to the performance of this Agreement.

SECTION 9. ASSIGNABILITY

Artist shall not assign, sublet or transfer any interest in this Agreement nor the performance of any of Artist’s obligations hereunder. Any attempt by Artist to assign any rights, duties, obligations shall be void and of no effect without City’s prior written consent.

SECTION 10. ENTIRE AGREEMENT

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This Agreement, including exhibits, embodies the entire understanding between the parties hereto. There are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. No alteration, change or modification of the terms of this Agreement shall be valid unless made in writing and signed by both parties. Any waiver of any breach of violation of any term or condition of this Agreement shall not be deemed to be a waiver of any other term or condition contained herein or a waiver of any subsequent breach or violation of the same or any other term of condition.

SECTION 11. 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. Venue shall be in the County of Santa Clara.

SECTION 12. NOTICES

All notices, requests, demands and other communications required by this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:

CITY City of Milpitas City Manager’s Office 455 East Calaveras Boulevard Milpitas, CA 95035

ARTIST [Name] [Company] [Street Address] [City], [State] [Zip Code]

Such notice shall be deemed made when personally delivered or, when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by signing below.

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CITY OF MILPITAS Approved By: Steven G. McHarris, City Manager Date Approved As To Form: Christopher J. Diaz, City Attorney Approved: ____________________________________ Walter C. Rossmann, Risk Manager/ Director of Finance Approved As To Content: Renee Lorentzen, Director of Recreation and Community Services

ARTIST Signature Name Date

Exhibit A 38077.00150\32302482.2

EXHIBIT A

Scope of Work

1. Artwork.

A [insert art medium] generally described as [name of work] (see picture attached), to be located at [insert street address], in the City of Milpitas, California. The size of the [insert art medium] shall be approximately [insert size].

2. Services.

Artist promises and agrees to furnish Services, and shall manage and oversee the production, crafting, and installation of the Artwork, with Artist solely responsible for final delivery and installation of Artwork to City’s satisfaction. Artist shall not be substituted without City’s prior written approval. Artist shall collaborate with City staff to ensure that the design, dimensions, materials and siting of the Artwork are acceptable to City.

3. Final Design, Shop Drawings, and Specifications.

The Artwork is subject to review by the Milpitas Arts Commission and approval by the City Council, and review and approval by other City departments, as applicable. The Artwork shall be installed so as not to interfere with the intended use of the Site, pedestrian and other traffic flow, parking, and safety devices and procedures at the Site. Within thirty (30) days after this Agreement is executed, Artist shall prepare and submit a final design, shop drawings and specifications for the construction and installation of the Artwork (“Design and Specifications”). The final design proposal shall include the following elements:

• Rendering of the final image (adjusted to fit the actual dimensions as constructed), with the minimum size of rendering to be [insert dimensions];

• Detailed description of materials, adhesives, colors and finishes. The design and materials shall be suitable to withstand without cracking, chipping, peeling, fading, rusting, or otherwise deteriorating, the climatic and environmental conditions commonly experienced within and in the general vicinity of the City of Milpitas for a reasonable amount of time, at least [insert number] years from final acceptance. Such materials shall withstand temperatures in excess of 100 degrees Fahrenheit and below 32 degrees Fahrenheit, high velocity winds, heavy rainfall and periods of very low humidity. It is understood by both parties however, that bronze galvanized painted steel by its very nature will change in patina and fade over time, and that moving parts require maintenance. The use of quality paints that have an above average rating for UV and general durability is required;

• Information on the durability and maintenance requirements of the Artwork, including a recommended maintenance schedule, and theft/vandalism prevention measures;

Exhibit A 38077.00150\32302482.2

• Site preparation requirements; and,

• Detailed project timeline.

City shall review the final design proposal within thirty (30) days.

4. Revisions to Design.

If City requires any changes to the final Design and Specifications, it shall provide Artist with a written statement of required changes. City may require Artist to make revisions to the Artwork as necessary for the Artwork to comply with applicable statutes, ordinances or regulation. If revisions are required, Artist shall submit a revised proposal within thirty (30) days of notification. Upon City’s approval of the final design proposal, Artist shall procure materials procurement and complete a mock-up of a work and materials color palette within thirty (30) days.

Minor changes in form, shape, materials and color may be made at Artist’s discretion to refine the Design. Any significant changes to the Artwork by Artist or as requested by City must be approved in writing by the other party. For purposes of this Agreement, a “significant change” means any change, including, but not limited to a change in the scope, design, color, size or material, texture or location of the Site of the Artwork, which affects cost, installation, Site preparation, maintenance and concept as represented in the Design. If Artist needs to make a significant change to the Artwork, Artist must notify City of the change in writing at the address provided. City must provide a written response within ten (10) calendar days. No response from City will constitute rejection.

5. Fabrication.

The artistic expression, scope, design, color, size, material, texture, and manner of fabrication shall be substantially in accordance with the Design for the Artwork reviewed by the Milpitas Arts Commission and approved by the City Council. During fabrication of the Artwork, City shall have the right to visit the studio or premises where the Artwork is located to inspect the Artwork.

6. Delivery.

Artist shall notify City, in writing, when fabrication of the Artwork is complete and ready for transportation and installation. Designated representatives of City will have the opportunity to inspect the Artwork for conformity with the Design and structural requirements prior to delivery and to give approval or disapproval of the Artwork for delivery within thirty (30) days following notice of completion from Artist. If City does not inspect or approve the Artwork within thirty (30) days, approval by City to deliver the Artwork will be deemed given and Artist will deliver the Artwork pursuant to Section 7 below. If City approves the Artwork, or the Artwork is deemed approved, City and Artist shall mutually agree to a date to install the Artwork. Artist shall be responsible for arranging, supervising and paying all costs associated with transporting the Artwork to the Site and installing the Artwork at the Site.

7. Installation.

Exhibit A 38077.00150\32302482.2

Artist shall oversee the installation of the completed Artwork at the Site in compliance with the Design and Specifications required in Section 3 above. Once the Artwork is installed, the Artwork and installation shall be reviewed and approved by City and other applicable City departments or outside agencies, where appropriate, to ensure Artwork meets the project requirements and does not interfere with the use of the Site.

8. Final Acceptance.

Artist shall advise City in writing when all Services required under this Agreement have been completed in compliance with the terms of this Agreement and the final design and specifications for the Artwork.

Upon installation of the Artwork, unless otherwise agreed between the parties, City will inspect the Artwork and approve the Artwork as delivered upon a finding that (i) the Artwork is in conformance with the Design and Specifications set forth in Section 3 above and (ii) Artist is in substantial compliance with the other terms of this Agreement which City has not waived. If City finds that any aspect of the Artwork is not in conformance with the Design and Specifications set forth in Section 3 above, City will notify Artist in writing. Artist will have a reasonable opportunity to address any requests or concerns of City as mutually agreed upon between the parties.

Final acceptance is effective as provided in Section 1.2.4 of this Agreement.

9. Artist’s Attendance.

Artist shall be available, with reasonable advance notice, to attend public meetings, design and installation coordination meetings, installation of the Artwork, ceremonies and the like, as necessary, to communicate about and ensure proper installation and maintenance of the Artwork.

10. Artwork Documentation and Maintenance Instructions.

Within thirty (30) days after the completion of the Artwork, Artist shall furnish City with one palette of color samples with the name and manufacturer of each color used in the work to assist in accurate maintenance and restoration of the Artwork. Following completion of the Artwork, Artist shall provide City with detailed written instructions for appropriate and reasonable maintenance and preservation of Artwork, including a recommended maintenance schedule. City shall maintain and protect Artwork in accordance with such instructions. The minimum maintenance and preservation standards for the Artwork shall include, without limitation, product data sheets for materials or finishes used.

Exhibit A 38077.00150\32302482.2

SCHEDULE OF SERVICES

Artwork shall proceed with the following schedule. Artist’s final design and specifications shall include a more detailed schedule including information on production dates, transportation dates and installation dates.

1. Approval of agreement by City Council (approx. [insert month date, year]) 2. Artist submits final design and specifications proposal that includes final Site from City;

30 days later (approx. [insert month date, year]) 3. Within 30 days – City accepts final design and specifications and completes plan check

review of proposal (approx. [insert month date, year]) 4. If changes are required by City, Artist works to gain City approval of final design and

specifications within 30 days (approx. [insert month date, year]) 5. Preparation, materials procurement, completion of mock-up of work and materials color

palette; 30 days later (approx. [insert month date, year]) 6. Notice by Artist of completion and opportunity for City to inspect Artwork prior to

delivery. 7. Installation of Artwork at site; no later than [insert month date, year], unless City and

Artist have mutually agreed to a time extension, in writing. 8. Ribbon Cutting for project; soon after installation 9. Final Acceptance of Artwork by City; within 30 days of satisfactory delivery and

installation

Exhibit B 38077.00150\32302482.2

EXHIBIT B

Compensation and Payment Schedule

Artist shall execute the Artwork in accordance with the budget set forth herein. Payment shall be made in accordance with the following scheduled installments, each installment representing full and final payment for all Services and materials provided prior to payment thereof. Artist shall submit a detailed invoice listing the item or task, dates of service, purchase order number and any other relevant information as requested by City for all requests for payment.

Payment #1 – Contract Execution - Upon execution of this Agreement, Artist may invoice for an amount not to exceed twenty-five percent (25%)

$______________

Payment #2 – Design/Working Documents - Upon notification of approval by City, Artist may invoice for an amount not to exceed twenty-five percent (25%)

$______________

Payment #3 – Fabrication – Upon notification by Artist that Artwork is ready for delivery and installation and notification of approval by City, Artist may invoice for an amount not to exceed twenty-five percent (25%)

$______________

Payment #4 – Installation & Final Acceptance – Upon successful installation of Artwork and notification by Artist that all Services have been completed, including submittal of maintenance and preservation instructions, and notification of final approval by City pursuant to Section 1.2.4 of this Agreement, Artist may invoice for an amount not to exceed twenty-five percent (25%)

$______________

Total obligation under this Agreement: $______________ Improperly completed invoices which have to be returned for correction may result in payment delay and shall not be subject to an interest penalty. Invoice payment requirements do not start until a properly completed invoice is provided to City.

Exhibit C 38077.00150\32302482.2

EXHIBIT C

Insurance Requirements

Please refer to the insurance requirements listed below. Those that have an “X” indicated in the space before the requirement apply to Contractor/Artist. Contractor/Artist shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor/Artist, its agents, representatives, employees or subcontractors.

Contractor/Artist shall provide its insurance broker(s)/agent(s) with a copy of these requirements and request that they provide Certificates of Insurance complete with copies of all required endorsements. Contractor/Artist shall furnish City with copies of original endorsements affecting coverage required by this Exhibit C. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements and certificates are to be received and approved by City before work commences. City has the right to require Contractor’s/Artist’s insurer to provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications.

If the Contractor/Artist maintains higher limits than the minimums shown below, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor/Artist. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City. Commercial General Liability (CGL): ___ Coverage at least as broad as Insurance Services Office (“ISO”) Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $2,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. ___X_ Coverage at least as broad as ISO Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $1,000,000.00 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. ___ Coverage at least as broad as ISO Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $5,000,000.00 per occurrence. If a general aggregate

Exhibit C 38077.00150\32302482.2

limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. Automobile Liability: __X_ Coverage at least as broad as ISO Form Number CA 0001 covering, Code 1 (any auto), of if Contractor/Artist has no owned autos, Code 8 (hired) and 9 (non-owned), with limits no less than $1,000,000.00 per accident for bodily injury and property damage. ___ Coverage at least as broad as ISO Form Number CA 0001 covering, Code 1 (any auto), with limits no less than $5,000,000.00 per accident for bodily injury and property damage. ___ Garage keepers’ extra liability endorsement to extend coverage to all vehicles in the care, custody and control of the Contractor/Artist, regardless of where the vehicles are kept or driven. Professional Liability (Errors and Omissions): ___ Insurance appropriates to the Artist’s profession, with limit no less than $1,000,000.00 per occurrence or claim, $2,000,000.00 aggregate. ___ (If Design/Build), with limits no less than $1,000,000.00 per occurrence or claim, and $2,000,000.00 policy aggregate. ___ Insurance appropriates to the Artist’s profession, with limit no less than ______ per occurrence or claim, ______ aggregate Workers’ Compensation Insurance: __X__ Insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000.00 per accident for bodily injury or disease. (Not required if Contractor/Artist provides written verification it has no employees) The Contractor/Artist makes the following certification, required by section 1861 of the California Labor Code: I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract. __________________________________ Contractor/Artist Signature Builder’s Risk (Course of Construction): ___ Insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions. Surety Bonds:

Exhibit C 38077.00150\32302482.2

___ Contractor/Artist shall provide the following Surety Bonds:

1. Bid Bond 2. Performance Bond 3. Payment Bond

The Payment Bond and Performance Bond shall be in a sum equal to the contract price. Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California. Contractor’s Pollution Legal Liability: ___ Contractor’s/Artist’s pollution legal liability and/or Asbestos Legal Liability and/or Errors and Omissions (if project involves environmental hazards) with limits no less than $1,000,000.00 per occurrence or claim and $2,000,000.00 policy aggregate. Other Insurance Provisions: The insurance policies are to contain, or be endorsed to contain the following provisions: __X__ Additional Insured Status: The insurance policies are to contain, or be endorsed to contain the following provision: The City, its elected and appointed officials, officers, attorneys, agents, and employees are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor/Artist or any subcontractors including materials, parts, or equipment furnished in connection with such work or operations, including completed operations. General liability coverage can be provided in the form of an endorsement to the Contractor’s/Aritst’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10 and CG 20 37 if a later edition is used). The Additional Insured coverage under the Contractor’s/Artist’s policy shall be “primary and non-contributory” and will not seek contribution from the City’s insurance or self-insurance and shall be at least as broad as CG 20 01 04 13. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City (if agreed to in a written contract or agreement) before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured. __X__ Primary Coverage: The insurance policies are to contain, or be endorsed to contain the following provision: For any claims related to this contract, the Contractor’s/Artist’s insurance coverage shall be primary insurance as respects the City, its elected and appointed officials, officers, attorneys, agents, and employees. Any insurance or self-insurance maintained by the City, its elected and

Exhibit C 38077.00150\32302482.2

appointed officials, officers, attorneys, agents, and employees shall be in excess of the Contractor’s or Consultant’s insurance and shall not contribute with it. ____ Builder’s Risk (Course of Construction Insurance) (applicable to Construction Contracts only) Contractor/Artist may submit evidence of Builder’s Risk insurance in the form of Course of Construction coverage. Such coverage shall name the City as a loss payee as their interest may appear. If the project does not involve new or major reconstruction, at the option of the City, an Installation Floater may be acceptable. For such projects, a Property Installation Floater shall be obtained that provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment. The Property Installation Floater shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the City’s site. __X__ Notice of Cancellation, Suspension or Otherwise Voiding Policies: Each insurance policy required above shall contain, or be endorsed to contain that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except with thirty (30) days’ prior written notice by certified mail, return receipt requested to the City. __X__ Waiver of Subrogation: Contractor/Artist hereby grants to City a waiver of any right to subrogation which any insurer of said Contractor/Artist may acquire against the City by virtue of the payment of any loss under such insurance. Contractor/Artist agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. The Workers’ Compensation Policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by Contractor/Artist, its employees, agents and subcontractors. ____ Completed Operations For Construction Agreements, Contractor/Artist shall maintain insurance as required by this Agreement to the fullest amount allowed by law and shall maintain insurance for a minimum of five (5) years following the completion of this project. In the event Contractor/Artist fails to obtain or maintain completed operations coverage as required by this Agreement, the City at its sole discretion may purchase the coverage required and the cost will be paid by Contractor/Artist.

THE FOLLOWING PROVISIONS APPLY TO ALL AGREEMENTS

Deductibles and Self-Insured Retentions (“SIR”): Any deductibles or self-insured retentions must be declared to and approved by City. The City may require the Contractor/Artist to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense

Exhibit C 38077.00150\32302482.2

expenses within the retention. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its elected and appointed officials, officers, attorneys, agents, and employees; or (2) the Contractor/Artist shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. All SIRs must be disclosed to Risk Management for approval and shall not reduce the limits of liability. Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or the City. City reserves the right to obtain a full-certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later. Acceptability of Insurers: Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to City. Claims Made Policies: (note - should be applicable only to professional liability, see below)

1. The Retroactive Date must be shown, and must be before the date of the contract or the beginning of contract work.

2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of contract of work.

3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Contractor/Artist must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.

4. A copy of the claims reporting requirements must be submitted to the City for review.

5. If the Services involve lead-based paint or asbestos identification/remediation, the Contractor’s Pollution Liability Policy shall not contain lead-based paint or asbestos exclusions. If the Services involve mold identification/remediation, the Contractors Pollution Liability Policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.

Subcontractors: Contractor/Artist shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor/Artist shall ensure that City is an additional insured on insurance required from subcontractors. Subcontractor agrees to be bound to Contractor/Artist and City in the same manner and to the same extent as Contractor/Artist is bound to City under this Agreement and any other contract documents. Subcontractor further agrees to include the same requirements and provisions of this Agreement, including the indemnity and insurance requirements, with any sub-subcontractor to

Exhibit C 38077.00150\32302482.2

the extent they apply to the scope of the sub-subcontractor’s work. A copy of the City indemnity and insurance provisions will be furnished to the subcontractor upon request. Verification of Coverage: Contractor/Artist shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this Exhibit. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s/Artist’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. Special Risks or Circumstances City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage or other special circumstances. Failure to Comply: Each insurance policy required above shall contain or be endorsed to contain that any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected and appointed officials, officers, attorneys, agents, and employees. Applicability of Coverage: Each insurance policy required above shall contain or be endorsed to contain that the Contractor’s/Artist’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

Call for Artists - Montague POC Mural released 121120.pdfArt installation areaMontague Expressway POC_2020-12-07_12-14-17 Art area at bask of stairwellMontague Expressway POC_2020-12-07_12-02-18 art area at base of stairwellPotential Space for Arts at MPOCMilpitas_ Public Art ContractTemplate-c2 (BBK edits 8.28.19)SECTION 1. SCOPE OF SERVICES1.1 Duties.1.1.1 Artist is hereby retained to furnish all labor, materials, tools, equipment, services, and incidental and customary work necessary to design, fabricate, transport and install the Artwork (“Services”) on the Site in accordance with the schedule o...1.1.2 Artist shall be responsible for complying with all Federal, State and local laws, ordinances, statutes and regulations, including, but not limited to zoning and environmental requirements, and for obtaining all required licenses, permits, or oth...1.1.3 Artist shall execute and deliver to City any instruments that City may reasonably require to confirm ownership of the Artwork.

1.2 Maintenance; Warranty.1.2.1 Artist will consult City during the design of the Artwork to ensure that all maintenance requirements will be reasonable in terms of time and expense. The Artwork must be durable, taking into consideration that the Site may be an exposed, unsec...1.2.2 Following completion of the Artwork, Artist shall provide City with detailed written maintenance instructions setting forth the minimum maintenance and preservation standards.1.2.3 Following installation of the Artwork, Artist agrees to sign and submit photographs of the Artwork to City certifying the Artwork’s authenticity.1.2.4 Final acceptance is effective on the date City issues written notification of final acceptance or thirty (30) days after Artist has sent City written notice of completion, whichever first occurs, unless City, upon receipt of Artist’s notice of c...1.2.5 Following final acceptance of the Artwork by City, City shall be responsible for the maintenance of the Artwork. Artist agrees to provide both written and verbal advice to City at no charge regarding the maintenance of the Artwork.

SECTION 2. COMPENSATION AND PAYMENT SCHEDULE2.1 Artist Compensation.2.2 Artist’s Expenses.2.3 Retention and Audit of Records.

SECTION 3. TIME OF PERFORMANCE3.1 Duration.3.2 Time Extension.3.3 Damages for Delayed Performance.Subject to reasonable proof and documentation confirming the same submitted by the City, Artist shall be liable for all incidental and consequential damages resulting, directly or indirectly, from delays in performance caused by Artist’s acts or omiss...3.4 Illness, Injury, Death, or Incapacity.Should Artist die, become ill, injured or otherwise incapacitated (collectively, “incapacitated”) such that Artist is unable to work for any period not exceeding 30 days (whether consecutive or non-consecutive), any delay arising out of such incapacit...3.5 Termination.

SECTION 4. INSURANCE AND INDEMNIFICATION4.1 Insurance.4.2 Indemnification.

SECTION 5. RIGHTS, OWNERSHIP, AND INTEREST5.1 Ownership and Moral Rights.5.2 Artist’s Waiver.5.3 Reproduction.5.4 Royalty Rights.

SECTION 6. ARTIST’S REPRESENTATIONS AND WARRANTIES6.1 Artist shall perform all work under this Agreement as an independent contractor and not as an agent or an employee of City. Any additional personnel performing the Services under this Agreement on behalf of Artist shall not be employees of City a...6.2 Artist represents and warrants that:(i) Artist is the sole owner of the Artwork and any copyrights and has the full power to enter into and execute this Agreement;(ii) The Artwork is unique and original and solely the result of the artistic effort of Artist, except as otherwise disclosed in writing to City, does not infringe upon any copyright or rights of any person and is free and clear of any liens or disput...(iii) The Artwork, or a duplicate thereof, has not been accepted for sale elsewhere.(iv) The Artwork is free from defective, hazardous or inferior materials and workmanship or inherent vice or qualities that cause or accelerate deterioration, except as otherwise disclosed in writing to City, and will not pose a danger to public healt...(v) Reasonable maintenance of the Artwork will not require procedures in excess of those described in the maintenance and preservation recommendations submitted by Artist pursuant to Section 1.2.2. The Artwork will not experience irreparable damage n...(vi) The Artist guarantees the Artwork against all defects in its design, workmanship and materials for a period of three (3) years following final acceptance. If any such defects occur within this time period, the Artist agrees to promptly and satisf...(vii) No person has been employed or retained to solicit or secure this Agreement for commission, percentage, brokerage or contingent fee and that no member of City has any interest, financially or otherwise in Artist’s business.(viii) Artist is aware of the requirements of California Labor Code Sections 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailin...

SECTION 7. SOLICITATIONArtist agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through written materials.

SECTION 8. NON-DISCRIMINATIONSECTION 9. ASSIGNABILITYSECTION 10. ENTIRE AGREEMENTSECTION 11. GOVERNING LAWSECTION 12. NOTICESArtist shall notify City, in writing, when fabrication of the Artwork is complete and ready for transportation and installation. Designated representatives of City will have the opportunity to inspect the Artwork for conformity with the Design and st...Final acceptance is effective as provided in Section 1.2.4 of this Agreement.