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Fountainhead Design Inc; 2017-07-18;
Attachment "A" AMENDMENT NO.1 TO AGREEMENT FOR FABRICATION, AND INSTALLATION OF PUBLIC ARTWORK FOUNTAINHEAD DESIGN, INC. This Amendment No.1 is entered into and effective as of the I (q~ day of Tu,t\.~/ , 2018, amending the agreement dated July 18, 2017 (the "Agreement") by and be een the City of Carlsbad, a municipal corporation, ("City"), and Fountainhead Design, Inc., ("Contractor") (collectively, the "Parties") for fabrication and installation of public artwork at Pine Avenue Community Park. RECITALS A. The Parties desire to alter the Agreement's scope of work to include additional project compensation; and B. The Parties have negotiated and agreed to a supplemental scope of work and fee schedule, which is attached here to and incorporated by this reference as Exhibit "A", Scope of Services and Fee. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. In addition to those services contained in the Agreement, as may have been amended from time to time, Contractor will provide those services described in Exhibit "A". With this Amendment, the total annual Agreement amount shall not exceed one hundred seventeen thousand, three hundred eighty-nine dollars ($117,389). 2. Contractor will complete all work described in Exhibit "A". The ARTWORK shall be installed and operational on or before May 19, 2018. All other work and deliverables shall be completed by July 18, 2019. 3. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 4. All requisite insurance policies to be maintained by Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. City Attorney Approved Version 9/27/16 May 15, 2018 Item #1 Page 5 of 7 5. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. CONTRACTOR I By: / :.·.~ I By:/ i (sign here) j I II \. / /I ,,,-:__ f/ -~ 0-...J r-.J(\ t::,,. l ';->,., ~~ / L---T u (print name/tit(e) CITY OF CARLSBAD, a municipal corporation of the State of California By: ~f MA~ Mayor City Clerk If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney City Attorney Approved Version 9/27/16 2 May 15, 2018 Item #1 Page 6 of 7 EXHIBIT "A" SCOPE OF SERVICES AND FEE The Artist will be provided by the Park Contractor the schedule and milestones of the Pine Avenue Park Community Center & Gardens Project to allow the Artist adequate information for scheduling purposes. It is expected that the ARTWORK be installed and operational prior to the grand opening celebration of the park improvements schedule for May 19, 2018. The Cultural Arts Manager will notify Artist of schedule changes or modifications within 10 business days. To assist the Artist on support documentation, Cultural Arts Manager will provide Artist access to the following documents electronically as provided by the City staff: • Pine Avenue Park Community Center & Gardens Project General Provisions • Supplemental Provisions and Technical Specification • City of Carlsbad Landscape Manual • Site Plan showing location of stub outs for ARTWORK Task 1-Fabrication: Not-to-Exceed $103,389 Procure materials, fabricate ARTWORK, store and protect ARTWORK in coordination with staff and contractors. 1. $20,000 will be paid upon execution of the Agreement by all Parties for working on initial fabrication and installation of planning and designs. 2. Up to $30,000 will be paid upon the procurement of all materials satisfactory to the CITY's Cultural Arts Manager. 3. Up to $20,000 will be paid upon 75 percent completion of the ARTWORK's fabrication, in a manner acceptable to the CITY's Cultural Arts Manager. 4. Up to $33,389 will be paid upon 100 percent completion of the ARTWORK's fabrication, in a manner acceptable to the CITY's Cultural Arts Manager. Task 2-Installation: Not-to-Exceed $14,000 Delivery and Installation of ARTWORK and providing Artist's ARTWORK Maintenance Package 5. *$7,000 will be paid upon completion of installation of the ARTWORK and verified by the Cultural Arts Manager. 6. $7,000 on the written acceptance of the ARTWORK by the CITY and in a manner acceptable to the Cultural Arts Manager. *The initial $7,000 payment listed under Task 2 is an advance on the total delivery and installation payment; if the installation is not completed in a manner acceptable to the Cultural Arts Manager, any advance payments must be returned by the Artist in a timely manner. The Artist bears the sole burden for ensuring that all legally required licenses and permits are obtained and renewed as specified by the regulating agency. This information is provided as a guide only. The Artist must verify and comply with all Federal, State, and Local requirements, whether listed here or not. All fees will be paid as specified above. Artist's invoice(s) will be submitted at the completion of each task. Invoices shall be sufficiently detailed to include related activities for approval by City. City Attorney Approved Version 9/27/16 3 May 15, 2018 Item #1 Page 7 of 7 FOUDE01 OPID: VK ACORD CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DDIYYYY) ~ 05/01/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: KORAM INSURANCE CENTER, INC. ritJgNJo Extl: 323-660-1000 I r..e~ Nol: 213-381-6299 3807 WILSHIRE BLVD., SUITE 400 LOS ANGELES, CA 90010 E-MAIL ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC# INSURER A: COLONY INSURANCE COMPANY 39993 INSURED FOUNTAINHEAD DESIGN, INC. INSURER B: 4644 HUNTINGTON DRVIE SOUTH LOS ANGELES, CA 90032 INSURERC: INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE 1\UDL ~UBR POLICY EFF 1,~3}-J%~, LIMITS LTR INSD WVD POLICY NUMBER IMM/DDIYYYY) A X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 -D CLAIMS-MADE [!] OCCUR y GL0063580-02 09/30/2017 09/30/2018 UAIVJAl.>C '.YtC"ICU $ 100,000 PREMISES Ea occurrence) MED EXP (Any one person) $ 5,000 - PERSONAL & ADV INJURY $ 1,000,00C - GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,00C ~ DPRO-DLOC PRODUCTS -COMP/OP AGG $ 2,000,000 POLICY JECT OTHER: $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ rEa accident) ~ ANY AUTO BODILY INJURY (Per person) $ ~ ALL OWNED -SCHEDULED BODILY INJURY (Per accident) $ -AUTOS -AUTOS NON-OWNED PROPERTY DAMAGE $ HIRED AUTOS AUTOS f Per accident) -- $ UMBRELLA LIAB H OCCUR EACH OCCURRENCE $ - EXCESSLIAB CLAIMS-MADE AGGREGATE $ DED I I RETENTION$ $ WORKERS COMPENSATION I ~-\%uTE I IOTH- AND EMPLOYERS" LIABILITY ER Y/N ANY PROPRIETOR/PARTNER/EXECUTIVE D N/A E.L. EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E.L. DISEASE· EA EMPLOYEE $ If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $ DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached If more space is required) THE CERTIFICATE HOLDER 15 NAMED AS ADDITIONAL INSURED. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE CITY OF CARLSBAD THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 1200 CARLSBAD VILLAGE DR. ACCORDANCE WITH THE POLICY PROVISIONS. CARLSBAD, CA 92008 AUTHORIZED REPRESENTATIVE ~ 11. ~ I © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) The ACORD name and logo are registered marks of ACORD 101 GL 0063580-01 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITiONAL INSURED - OWNERS, LESSEES OR CONTRACTORS-SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Additional Insured Person(s) or Organization(s) (Additional Insured): Location(s) of Covered Operations: AS DESIGNATED IN WRITTEN CONTRACT AS DESIGNATED IN WRITTEN CONTRACT WITH THE NAMED INSURED -WITH THE NAMED INSURED It is further agreed that this insurance shall be Primary and Non-Contrib~tory but only in the event of a Named lnsured's sole negiigence. A. SECTION 11-WHO IS AN INSURED is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization is an additional insured only with respect to liability for "bodily injury", "property damage• or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above. A person's or organization's status as an additional insured under this endorsement ends when your · operations for that additional insured are completed. B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to: Additional Insured Contractual Liability. "Bodily injury" or "property damage" for which the additional insur:ed(s) are obligated to pay damages by reason of the assumption of liability in a contract or agreement. Finished Operations at Work "Bodily injury" or "property damage" occurring after: 1. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the . additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work'' out of which the injury or damage arises has been put to its intended use by any person or organization. · Negligence of Additional Insured "Bodily injury" or "property damage" arising dkectly or indirectly out of the negligence of the additional U156-0310 Includes copyrighted material of ISO Properties, Inc., with its permission. Page 1 of2 101 GL 0063580-01 insured(s). ALL OTHER TERMS AND CONDITIONS OF THE POLICY REMAIN UNCHANGED. U156-0310 Includes copyrighted material of ISO Properties, Inc., with its permission. Page 2 of2 CERTIFICATE OF EXEMPTION WORKERS' COMPENSATION/EMPLOYERS' LIABILITY INSURANCE . I, JENNA DIDIER th PRESIDENT am e _______________ _ [insert name] [title] of FOUNTAINHEAD DESIGN, INCr hereby certify that FOUNTAINHEAD DESIGN. (NC, [name of company] [name of company] has no employees and is not required by law to maintain workers' compensation or employers' liability insurance. Should FOUNTAINHEAD DESIGN, INC, [name of company] employ any person during the term of the Agreement with the City of Carlsbad for THE PINE AVENlJF PARK PllBI IC ABT WQBK [ description of project or work that is being contracted] then workers' compensation and employers' liability insurance will be obtained. ----. [Name] PRESIDENT, FOUNTAINHEAD DESIGN INC. [Title and name of company or corporation] 06/15/2006 25 A~i:I CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YYYY) 05/04/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the pollcy(les) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT Debra Jayroe NAME: FALCON WEST INSURANCE BROKERS, INC. rlJ8NJ0 Ext\: (619) 297-9184 I r.&Nol: (619) 297-9184 2525 Camino Del Rio S Ste 100 E-MAIL debraj@falconwestins.com ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC# San Diego CA 92108 INSURER A: Associated Industries Insurance Company INSURED INSURERB: National Union Fire Insurance Co, of Pittsburgh, PA Del Mar Building Inc INSURER C: 12704 Via Esperia INSURER D: INSURER E: Del Mar CA 92014 INSURER F: COVERAGES CERTIFICATE NUMBER· CL 185412524 REVISION NUMBER· THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. 1 .. ~~ TYPE OF INSURANCE LTR INSD W/D POLICY NUMBER ,:~JrlKl'./~~1 l~~hl%1v~1 LIMITS X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 -=:J CLAIMS-MADE [8] OCCUR PREMISES (E~~~~~~nce) 100,000 $ -MED EXP {Any one oersonl $ 6,000 -A y AES1050624 ,___ 01/28/2018 01/03/2019 PERSONAL & ADV INJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER GENERAL AGGREGATE s 2,000,000 ~ POLICY D ft& D LOC PRODUCTS -COMP/OP AGG $ 2,000,000 OTHER: $ AUTOMOBILE LIABILITY fE~~~~~;~llNGLE LIMIT $ -ANY AUTO BODILY INJURY (Per person) $ -OWNED ~ SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Per accident) $ --HIRED NON-OWNED rp~~=gc~T;t?AMAGE $ -AUTOS ONLY ,-...... AUTOS ONLY $ X UMBRELLA LIAB ~ OCCUR EACH OCCURRENCE $ 1,000,000 -45130750 05/03/2018 01/03/2019 1,000,000 B EXCESS LIAB CLAIMS-MADE y AGGREGATE $ I DED I I RETENTION $ $ WORKERS COMPENSATION I ~f~TUTE I I OTH- AND EMPLOYERS' LIABILITY ER YIN ANY PROPRIETOR/PARTNER/EXECUTIVE D NIA E.L. EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E.L. DISEASE• EA EMPLOYEE $ ~~S6~;":;'~rg~ o'W~PERATIONS below E.L. DISEASE· POLICY LIMIT $ DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (ACORD 101, Addltlonal Remarks Schedule, may be attached If more space Is required) City of Carlsbad, its officials, employees and volunteers are Additional Insured as respects liability arising out of work or operations performed by or on behalf of the Contractor. PROJECT: Pine Avenue Park Art Project; 3322 Madison St., Carlsbad, CA 92008 CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Garlsbad Development Services/Community & Economic ACCORDANCE WITH THE POLICY PROVISIONS. 1635 Faraday Avenue AUTHORIZED REPRESENTATIVE ~c 1.1.l.. -·---Carslbad CA 92008-7314 (', (\ I ©1908-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016103) The ACORD name and logo are registered marks of ACORD Associated Industries Insurance Company Policy No. AES105062400 COMMERCIAL GENERAL LIABILITY CG 20 33 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -OWNERS, LESSEES OR CONTRACTORS -AUTOMATIC STATUS WHEN REQUIRED IN CONSTRUCTION AGREEMENT WITH YOU This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART A. Section II -Who Is An Insured is amended to Include as an additional insured any person or or- ganization for whom you are performing operations when you an<! such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an addi- tional insured on your policy. Such person or or- ganization is an additional insured only with re- spect to liability for "bodily injury", "property damage" or "personaf and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured. A person's or organization's status as an additional insured under this endorsement ends when your operations for that additional Insured are com- pleted, B. With respect to the insurance afforded to these additional insureds, the following additional exclu- sions apply: This insurance does not apply to: 1. "Bodily injury'', "property damage" or "personal and advertising injury" arising out of the render- ing of, or the failure to render, any professional architectural, engineering or surveying servic- es, including: a. The preparing, approving, or failing to pre- pare or approve, maps, shop drawings, opi- nions, reports, surveys, field orders, change orders or drawings and specifications; or b. Supervisory, Inspection, architectural or engineering activities. 2. "Bodily Injury" or "property damage" occurring after: a. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than ser- vice, malntenanc~ or repairs) to be per- formed by or on behalf of the additional in- sured(s) at the location of the covered operations has been completed; or b, That portion of "your work" out of which the injury or damage arises has been put to its Intended use by any person or organization other than another contractor or subcontrac- tor engaged In performing operations for a principal as a part of the same project. CG 20 33 07 04 © ISO Properties, Inc., 2004 Page 1 of 1 Cl POLICYHOLDER COPY i' ., STATE COMl'EN5ATION INSURANCE: P.O. BOX 8192, PLEASANTON, CA 94588 ,.,, FUNC CERTIFICATE OF WORKERS' COMPENSATION INSURANCE ISSUE DATE: 02-01-2018 CONTRACTORS STATE LICENSE BOARD WORKERS COMPENSATION UNIT PO BOX 26000 SACRAMENTO CA 95826-0026 SP GROUP: POLICY NUMBER: 9042835-2018 CERTIFICATE ID: 1 CERTIFICATE EXPIRES: 02-01-2019 02-01-2018/02-01-2019 LIC PERMIT#: 688746 INCEPTION DATE:02-01-2018 DO:SP .i ! This is to certify that we have issued a valid Workers' Compensation insurance policy in a form approved by the California Insurance Commissioner to the employer named below for the policy period indicated. This policy is not subject to cancellation by the Fund except upon 10 days advance written notice to the employer. We will also give you 10 days advance notice should this policy be cancelled prior to its normal expiration. This certificate of insurance is not an insurance policy and does not amend. extend or alter the coverage afforded by the policy listed herein. Notwithstanding any requirement term or condition of any contract or other document with respect to which this certificate of insurance may be issued or to which it may pertain, the insurance afforded by the policy described herein is subject to all the terms. exclusions. and conditions. of such policy. ~ti -6:/ Authorized Representative President and CEO EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,000 PER OCCURRENCE. EMPLOYER DEL MAR BUILDING INC 12704 VIA ESPERIA DEL MAR CA 92014 (REV.7·2014) SP PRINTED 01-17-2018 SP ! M0409 AGREEMENT FOR FABRICATION, AND INSTALLATION OF PUBLIC ARTWORK FOUNTAINHEAD DESIGN, INC. This agreement is entered into on the / '8th day of (3; 1 0/!j , 2017, by the City of Carlsbad, a municipal corporation, hereinafter referred to as "C ~ and Fountainhead Design, Inc., hereinafter referred to as the "ARTIST". RECITALS WHEREAS, Carlsbad Municipal Code section 2.18.140 authorizes the CITY to select artists and to commission the placement of works of art in designated public places; and WHEREAS, the CITY previously commissioned the ARTIST to develop public artwork design concepts for Pine Avenue Community Park that were approved by the City Council on April 25, 2017; and WHEREAS, the CITY desires to commission ARTIST to fabricate and install artwork ("ARTWORK") for Pine Avenue Community Park, located at 3333 Harding Street, Carlsbad, CA ("SITE") as further described in Exhibits "A", "B", "C", "D", and according to the Payment Schedule set forth in Exhibit "E"; and WHEREAS, the ARTIST has been selected, pursuant to procedures adopted by the CITY, to fabricate and install the ARTWORK and funds have been allocated for that purpose; and NOW, THEREFORE, CITY and ARTIST, for the consideration and under the conditions hereinafter set forth, agree as follows: 1. ARTIST's SERVICES AND OBLIGATIONS, ADDITIONAL WORK 1.1 ARTIST's Services and Obligations. 1.1.1 The ARTIST shall, to the best of its artistic ability, fabricate and install the ARTWORK in a manner that is consistent with the intent and purpose of this Agreement. 1.1.2 The ARTIST shall fabricate, transport and install ARTWORK taking into consideration the following: (a) the nature of the SITE and the surrounding community; and (b) the budgetary requirements for the ARTWORK by the CITY (a not-to-exceed amount of ninety-four thousand dollars ($94,000) that includes the materials, fabrication, transportation/ shipping, installation, and all ARTIST travel and taxes, regardless of form, payable pursuant to the Exhibit "E" Payment Schedule); and (c) the desirability for low maintenance of said ARTWORK; and (d) the construction schedule for the Pine Avenue Park Community Center and Gardens Project; and (e) the safety of the public, including, but not limited to, the safety of persons traveling on public rights of way. 1.1.3 The ARTIST shall fabricate and install the ARTWORK in a manner which conforms to regulations of all public agencies with jurisdiction over the SITE and ARTWORK and to all other applicable laws, regulations and standards, including but not limited to, federal, state, and local requirements. The ARTIST shall be responsible for all fees and submittals associated with obtaining all required approvals (e.g. San Diego County Department of Environmental Health) and permits (e.g. building permits). 1.1.4 If any part of the ARTWORK is fabricated or installed by someone other than ARTIST, ARTIST will work with the fabricator and installer to ensure the fabrication and installation of the ARTWORK adheres to the approved final design of the ARTWORK at no additional cost or time to CITY's budgetary or scheduling requirements. 1.1.5 The ARTIST shall meet regularly with CITY staff to ensure the fabrication and installation of the ARTWORK complies with all provisions of this Agreement. 1.1.6 The ARTIST shall furnish all supplies, materials, equipment and labor necessary for fabrication and installation of the ARTWORK. 1.1. 7 The Cultural Arts Manager will furnish ARTIST with a notice to proceed and within two weeks of receipt of the notice to proceed, ARTIST shall furnish to the Cultural Arts Manager a tentative schedule for completion of fabrication and installation of the ARTWORK. After written approval of the schedule by the Cultural Arts Manager, the ARTIST shall purchase materials, fabricate, transport and install the ARTWORK in accordance with such schedule. The Cultural Arts Manager and ARTIST may amend the schedule for good cause with written approval of both parties. The Cultural Arts Manager shall have the right to review the ARTWORK at reasonable times during the fabrication thereof. 1.1.8 The ARTIST shall complete the fabrication and installation of the ARTWORK in conformity with the approved design (hereinafter "DESIGN"). The parties acknowledge that the approved conceptual design was the subject matter of a prior contract. If it is discovered during the fabrication and/or installation period that revisions to the DESIGN are necessary for the ARTWORK to comply with any law, standard or regulation, the ARTIST shall make such revisions as are necessary to maintain the project schedule. If the revisions required substantially change the approved DESIGN, the CITY may approve the revisions or recommend termination of this Agreement pursuant to the termination clause in Section 6. Minor changes to DESIGN may be approved by the Cultural Arts Manager. 1.1.9 The ARTIST may be required to meet with representatives of public entities with jurisdiction over the ARTWORK or the SITE to address any concerns voiced by those representatives. 1.1.10 The ARTIST shall notify the Cultural Arts Manager in writing when fabrication of the ARTWORK is completed and ready for delivery and installation at the SITE. ARTIST shall also notify the Cultural Arts Manager in writing regarding SITE preparation for the ARTWORK. SITE preparation requirements shall be identified and the schedule shall include a reasonable period of time for CITY to prepare the SITE for the ARTWORK. The ARTIST understands that improvements are underway for the Pine Avenue Park Community Center and Gardens Project. It is the responsibility of the ARTIST to coordinate the schedule for installation of the ARTWORK with the CITY's contractor and CITY's project manager for said improvements. The ARTIST is responsible for protecting existing conditions at the project site during installation and is responsible for any damage caused by or associated with installation of the ARTWORK. The ARTIST shall deliver and install the pre-fabricated ARTWORK and complete the final ARTWORK on-site. The CITY will provide the ARTIST with a graded site and stub outs for domestic water, recycled water and electrical for installation of the ARTWORK. The ARTIST shall be responsible for all expenses, labor, materials and equipment necessary to install the ARTWORK, including but not limited to finish grading; domestic and recycled water connections, recycled water, electrical stub outs and controllers; landscape and irrigation; footings; plumbing; and area and spot lighting of the ARTWORK as noted in support documents listed on Exhibit "E". 1.1.11 Upon installation of the ARTWORK, the ARTIST shall provide to the Cultural Arts Manager written instructions for recommended maintenance and preservation of the ARTWORK. 1.1.12 The ARTIST shall, at the option of the Cultural Arts Manager, meet with the general public or representatives of the media to discuss the DESIGN of the ARTWORK. 1.1.13 The risk of loss or damage to the ARTWORK shall be borne by ARTIST until final acceptance by CITY; the ARTIST shall take such measures as are necessary to protect the ARTWORK from loss or damage until final acceptance, ARTIST is responsible for the ARTWORK while it is at the SITE awaiting or being installed and before final acceptance by CITY. 1.1.14 The ARTIST shall be insured in the following manner, with the CITY named as an additional insured; Prior to commencing any work or receiving payment for any services performed under this Agreement, ARTIST must provide a certificate of insurance indicating one million dollars ($1,000,000) of general liability coverage, naming CITY as additional insured. The insurance shall cover all phases of the project and shall be effective from the first day work is commenced under this Agreement until one year after final written acceptance of the ARTWORK by CITY. The insurance must be obtained from a carrier admitted and authorized to do business in California with a current Best's Key Rating of not less that "A-:V." The insurance coverage must be single-limit occurrence coverage and may not be cancelled without thirty (30) days written notice to the CITY sent by certified mail. The ARTIST shall be required to provide proof of automobile liability coverage as required by the CITY's Risk Manager. 1.1.15 All costs associated with this Agreement, including cost of insurance, shall be the responsibility of ARTIST. 1.1.16 ARTIST shall provide to CITY lien releases for all materials, transportation, and the like before final payment to ARTIST shall be made. 1.1.17 ARTIST may not make any public information release in connection with the services performed under this Agreement without CITY's prior written consent, with the exception of resume use. 1.1.18 ARTIST agrees to use best efforts to be available to attend inauguration or presentation ceremonies related to the completion and acceptance of the ARTWORK by the CITY, at times mutually agreed upon by the parties. ARTIST agrees to provide CITY with a copy of any presentation materials prepared for such ceremonies. 1.2 Additional Work. CITY may desire ARTIST to perform work or render services in connection with the Site and the ARTWORK other than as expressly provided for in this Agreement. Any such work will be Additional Work, supplemental to and outside the scope of this Agreement and may not proceed without prior authorization by either a written amendment to this Agreement or a separate written agreement, signed by CITY and ARTIST. Any costs incurred by ARTIST or ARTIST's consultants, subcontractors, or agents due to the performance of Additional Work prior to execution of a written amendment or separate written agreement will not be reimbursed by CITY, unless agreed to in writing by CITY and ARTIST as provided herein or in a separate writing between ARTIST and CITY. 2. CITY'S OBLIGATIONS, RIGHT TO REVIEW, APPROVAL OF FABRICATION ARTWORK 2.1 CITY's Obligations. 2.1.1 The CITY shall make available to the ARTIST, background information on the SITE, if requested in writing by the ARTIST. The CITY will define the SITE area and specific location for incorporation into the approved final design. 2.1.2 Subject to Sections 1.1.2.(b) above, the CITY shall make payments to the ARTIST according to the Payment Schedule in Exhibit "E". The total not-to-exceed amount for this Agreement is ninety-four thousand dollars ($94,000), which includes all costs related to this Agreement, including without limitation materials, insurance, sales tax if required, labor, equipment and all travel and ARTWORK transportation, storage, installing, and all other expenses of the ARTIST. 2.1.3 CITY agrees to cooperate with ARTIST to achieve prompt completion of design, fabrication, transportation and installation of the ARTWORK. CITY agrees to allow reasonable access to the Project Site by ARTIST and ARTIST's employees, agents, consultants, and subcontractors. CITY further agrees to make its employees, contractors and agents reasonably available to ARTIST for consultation and coordination. 2.2 CITY's Right to Review. 2.2.1 Upon reasonable notice to ARTIST, CITY or its designees have the right, at mutually agreed upon times, to inspect and review the progress of the fabrication of the ARTWORK on-site or off-site. 2.2.2 If CITY, upon review of the ARTWORK during the fabrication process, determines that the ARTWORK does not conform to the approved final design, CITY reserves the right to notify ARTIST in writing of the deficiencies and that CITY intends to withhold the next payment installment as set forth in Exhibit "E", or a portion thereof, as applicable, until such deficiencies are remedied. 2.2.3 ARTIST agrees to promptly cure any deficiencies specified by CITY and notify CITY in writing upon completion of the cure. CITY will promptly review the ARTWORK, and upon approval will release any amounts withheld from the next payment installment as set forth in Exhibit "E". If ARTIST disputes CITY's determination that the ARTWORK does not conform to the approved final design, ARTIST will promptly submit reasons to the contrary in writing to CITY. CITY agrees to make reasonable efforts to resolve the dispute with ARTIST in good faith. However, final determination as to whether ARTIST has complied with the terms of this Agreement remains in CITY's sole and absolute discretion. CITY's Approval and Acceptance of Fabricated and Installed ARTWORK 2.2.4 ARTIST agrees to notify CITY in writing when off-site fabrication of the ARTWORK is completed, and that the ARTWORK is ready for transportation to and installation at the Project Site. 2.2.5 ARTIST agrees to notify CITY in writing when on-site fabrication and installation of the ARTWORK is completed. 2.2.6 Upon receiving ARTIST's notice of completion of fabrication, CITY will take the following steps: (1) Promptly inspect the ARTWORK prior to installation; (2) Determine that the ARTWORK conforms to the approved final design; 2.2. 7 In the event that CITY withholds final approval of the off-site or on-site fabricated ARTWORK, CITY will promptly notify ARTIST in writing of the reasons for withholding approval. ARTIST will then have sufficient time from the date of CITY's notice to make the necessary adjustments to the fabricated ARTWORK in order to obtain CITY's final written approval. ARTIST will not be penalized for any delay in the transportation and installation of the ARTWORK to the Project Site, unless ARTIST has willfully and substantially deviated from the approved final design without the prior written approval of CITY. If CITY determines in good faith that ARTIST's deviation was willful and substantial, ARTIST will then be held responsible for any costs incurred in correcting such deviation. 2.2.8 A plaque identifying the ARTIST, the title of the ARTWORK, if any, and the year of the ARTWORK's completion will be displayed in the immediate vicinity of the installed ARTWORK at the expense of the CITY. 3. INSTALLATION OF THE ARTWORK 3.1 Preparation of Site. CITY will be responsible for preparing the Site for the timely transportation and installation of the ARTWORK. CITY agrees to promptly notify ARTIST of any delays impacting transportation or installation of the ARTWORK. Any additional storage fees incurred as a result of such delays will be the responsibility of the CITY. ARTIST will provide engineer's stamped structural drawings for the ARTWORK, and will coordinate with CITY in the final design of the ARTWORK lighting. 3.2 Inspection of Site. ARTIST agrees to coordinate closely with CITY to ascertain that the Site is prepared for transportation and installation of the ARTWORK. ARTIST must inspect the Site before transportation and installation of the ARTWORK at the Site. ARTIST agrees to notify CITY in writing of any observed adverse conditions at, on, or around the Site that would negatively impact installation of the ARTWORK and which are in need of correction, but site preparation remains the responsibility of CITY. 3.3 Transportation of ARTWORK. Upon CITY's final written approval of the off-site fabricated ARTWORK as being in conformity with the approved final design, ARTIST will transport the ARTWORK to the Site in accordance with the schedule set forth in Exhibit "E". 3.4 Workers and Equipment. Before transporting the ARTWORK to the Site for installation, ARTIST must provide CITY within ten (10) days a list of all workers or subcontractors and equipment to be used for transportation, along with the hours of operation and the scope of work to be performed at the Site. 3.5 Presence at Site. ARTIST agrees to be onsite for all installation activities and to install the ARTWORK and related improvements and ensure conformity with the approved final design. 3.6 Final Inspection. Upon completion of installation of the ARTWORK, CITY will take the following steps: 3.6.1. Promptly inspect the ARTWORK within ten (10) business days of notice of completion of installation at the Site; 3.6.2. Determine that the ARTWORK conforms to the approved final design; and 3.6.3. Provide ARTIST with final written acceptance of the ARTWORK, which acceptance will not be unreasonably withheld. 3.7 Archival Materials for CITY. Within thirty (30) calendar days after installation of the ARTWORK, ARTIST must provide CITY with the following: 3. 7 .1. Digital Photographs. A set of at least six (6) digital high resolution photographic images of the ARTWORK, JPG or TIFF files. Images must be labeled with the name of the ARTWORK, the date that the photograph was taken, and the viewpoint from which the photograph was taken. 3.7.2. Written Description. A full written narrative description of the ARTWORK. 3.7.3. Such other ARTIST documents as the CITY may require for approval of the ARTWORK, and satisfaction of the CITY's requirement to meet the City of Carlsbad's Public Art Program as outlined by Cultural Arts Manager or Designee. 4. TERM AND EXTENSIONS This Agreement shall be effective on the date it is executed by the last party to sign the Agreement, and it shall be effective for two (2) years or until installation and acceptance of the ARTWORK, whichever is sooner. Notwithstanding, on good cause this Agreement may be extended for one additional year with the consent of both Parties and by a written amendment to this Agreement. 5. PREVAILING WAGE RATES Any construction, alteration, demolition, repair, and maintenance work, including work performed during design and preconstruction such as inspection and land surveying work, cumulatively exceeding $1,000 and performed under this Agreement are subject to state prevailing wage laws. The general prevailing rate of wages, for each craft or type of worker needed to execute the contract, shall be those as determined by the Director of Industrial Relations pursuant to the Section 1770, 1773 and 1773.1 of the California Labor Code. Pursuant to Section 1773.2 of the California Labor code, a current copy of applicable wage rates is on file in the office of the City Engineer. Contractor shall not pay less than the said specified prevailing rates of wages to all such workers employed by him or her in the execution of the Agreement. Contractor and any subcontractors shall comply with Section 1776 of the California Labor Code, which generally requires keeping accurate payroll records, verifying and certifying payroll records, and making them available for inspection. Contractor shall require any subcontractors to comply with Section 1776. 6. TERMINATION and FORCE MAJEURE 6.1 In the event of the ARTIST'S failure to deliver or perform the services required under this Agreement, CITY may terminate this Agreement for nonperformance by notifying ARTIST by certified U.S. Mail or next day overnight mail of the termination. If CITY decides to modify the ARTWORK, abandon or indefinitely postpone the work or services contemplated by this Agreement, CITY may terminate this Agreement upon written notice to ARTIST. Upon notification of termination, ARTIST has five (5) business days to deliver all work in progress to CITY and, at the CITY'S option the work in progress will become the CITY'S sole property. CITY will make a determination of fact based upon the work product delivered to CITY and of the percentage of work that ARTIST has performed which is usable and of worth to CITY in having the Agreement completed. Based upon that finding CITY will determine the final payment of the Agreement. 6.2 Force Majeure. Any delay in the performance of any the duties or obligations of either Party under this Agreement caused by an event outside the affected Parties' reasonable control shall not be considered a breach of this Agreement, and the time required for performance shall be extended for a period equal to the period of such delay. ARTIST shall not be entitled to damages or additional payment due to such delays. Such events shall include, without limitation: war, government regulation instituted or revised after the date of this Agreement, labor disputes (including without limitation strikes, lockouts, job actions or boycotts), fires, floods, earth quakes, adverse weather necessitating succession of work or similar actions of the elements, civil unrest, or such other unforeseeable causes beyond the reasonable control and without the fault or negligence of the Party so affected. The Party so affected shall give prompt notice to the other Party of such cause and shall take whatever reasonable steps are necessary to relieve the effects of such cause as rapidly as possible. In the event that the Forced Majeure delay extends longer than the CITY or ARTIST desires and such delay makes it difficult for either Party to perform, either Party may contact the other Party to meet and confer as to whether the Agreement should be terminated due to the extended delay or continue to be held in abeyance during the period of delay. If the Agreement is terminated, CITY will make the final determination as to the portions of the tasks completed and the compensation to be paid. 6.3 This Agreement may be terminated pursuant to Section 6.1 above. 7. OWNERSHIP OF MATERIAL SUBMITTED All materials submitted related to the approved ARTWORK, the approved DESIGN, or both the approved ARTWORK and DESIGN are the sole property of the CITY. 8. OWNERSHIP OF THE ARTWORK Title to the completed ARTWORK immediately vests in the CITY upon acceptance of the ARTWORK by the CITY, including all rights of ownership, possession and control. After completion and prior to acceptance of the ARTWORK, CITY shall have the right, at its option, to claim ownership, possession and control of that portion of the ARTWORK which is installed at the SITE. 9. REPRODUCTION RIGHTS Subject to the rights granted herein, ARTIST retains all rights under the Copyright Act of 1976 (17 U.S.C. §101 et. seq.), as amended from time to time. The ARTIST hereby grants the CITY, royalty free and irrevocable license to make, or cause to be made, photographs and other two-dimensional reproductions of the ARTWORK or the ARTWORK DESIGN for educational, public relations, tourism and arts promotional purposes. For the purpose of this Agreement, the following are among those deemed to be permissible reproductions for the above cited purposes: brochures and pamphlets pertaining to the CITY; reproductions in exhibition catalogues, books, slides, photographs, postcards, posters, calendars, art magazines, art books and art and news sections of newspapers; in general books and magazines not primarily devoted to art; slides and film strips; video; computer websites; and television; as well as in media that shall exist in the future. The CITY shall include the ARTIST's copyright notice on any reproductions and the ARTIST shall include the following words on any reproduction: "An original work commissioned by the City of Carlsbad, California." 10. REGISTRATION OF COPYRIGHT The responsibility for registration of the copyright shall be the responsibility of the copyright holder under this Agreement. 11. MAINTENANCE, REPAIR AND RESTORATION OF THE ARTWORK 11.1 Maintenance Requirements. By the ARTWORK installation completion date, ARTIST must provide CITY with written instructions for the recommended maintenance and preservation of the ARTWORK and product data sheets for any material or finish used. ARTIST represents and warrants that reasonable maintenance of the ARTWORK will not require procedures substantially in excess of those described in the maintenance and preservation requirements submitted by ARTIST. 11.2 CITY's Responsibility. Except as otherwise provided in this Agreement, CITY will be responsible for handling all maintenance, repair and restoration of the ARTWORK, including ongoing day-to-day maintenance and all repairs of the ARTWORK necessitated by ordinary wear and tear, and as may be otherwise required by the City of Carlsbad. All other maintenance, repair, or restoration of the ARTWORK will be done at CITY's sole discretion. 12. WARRANTIES 12 .1 Warranty of Title. ARTIST represents and warrants that: 12.1.1 The ARTWORK is solely the result of the artistic effort of the ARTIST. 12.1.2 The ARTWORK is unique and original and does not infringe upon any copyright, trademark, service mark or other intellectual property right of any third party. 12.1.3 The ARTWORK or a duplicate of the ARTWORK has not been sold elsewhere. 12.2 Warranty of Quality and Condition. ARTIST represents and warrants that: 12.2.1 The fabrication of the ARTWORK will be performed in a workman-like manner. 12.2.2 The ARTWORK, as fabricated and installed, will be free of defects in materials and workmanship, including any defects consisting of "inherent vice" or qualities which cause or accelerate deterioration of the ARTWORK for one ( 1) year after the date of final written acceptance by CITY. 12.2.3 Fabrication Materials. ARTIST represents and warrants that the materials used for fabrication of the ARTWORK are not currently known by ARTIST to be harmful to public health and safety. 12.3 Reasonable maintenance of the ARTWORK will not require procedures in excess of those described in the maintenance recommendations to be submitted by the ARTIST to the CITY along with the DESIGN. 12.4 The warranty of quality and condition of the structure integrity shall survive for a period of three (3) year after the final acceptance of the ARTWORK. The CITY shall give notice to the ARTIST of any observed breach with reasonable promptness. The ARTIST shall at the request of the CITY and at no cost to the CITY, cure reasonably and promptly the breach of any such warranty which is curable by the ARTIST and which cure is consistent with professional conservation standards (including, for example, cure by means of repair or re-fabrication of the ARTWORK). 12.5 Plant Material Warranty of Quality and Condition 12.5.1 ARTIST represents and warrants all plant material installed under Agreement against any and all poor, inadequate or inferior materials and/or workmanship for a period of one (1) year after final acceptance of the ARTWORK. If any plant materials are found to be dead, missing, or in poor condition due to faulty plant materials or workmanship, ARTIST will replace at no cost to CITY. 12.5.2 The CITY's representative shall be the sole judge as to condition of material. ARTIST to replace material within fourteen (14) days of written notification by CITY's representative. 12.5.3 The planting and irrigation associated with the ARTWORK shall be installed in accordance with the Pine Avenue Park Community Center & Gardens Project General Provisions, Supplemental Provisions and Technical Specifications, and adhere to the City of Carlsbad Landscape Manual. 13. PRESERVATION and REPAIRS OF ARTWORK 13.1 Alterations or Damage to the ARTWORK. CITY agrees not to intentionally destroy, alter, mutilate, or deface the ARTWORK. The CITY, and his or her successors in ownership must ensure that the ARTWORK remain in-situ on the property unless otherwise approved in writing by the CITY. 13.2 The CITY will have the right to determine whether repairs and/or restorations to the ARTWORK are required to be made, and if so, when the repairs and/or restorations shall be made. 13.3 Should the ARTWORK cease to be reparable, the CITY may negotiate an alternative solution for the replacement or disposition of the ARTWORK in conjunction with the CITY and the ARTIST as applicable. 13.4 Limitation of Liability. Neither ARTIST nor CITY will be responsible for damage to or destruction of the ARTWORK arising from the acts of third parties or caused by the elements, the atmosphere or other acts of nature, or caused by aging. 14. WAIVER OF ARTIST's RIGHTS The ARTIST and CITY acknowledge that the ARTIST may have certain rights under the Federal Visual Artists Rights Act of 1990 ("VARA" 17 U.S.C. § 106A, et seq.). The ARTIST acknowledges and understands that if fabrication is performed, the subsequent installation of the ARTWORK at the SITE may subject the ARTWORK to destruction, distortion, mutilation, or other modification due to its removal by the CITY or its officials, officers, employees, agents, or representatives. The ARTIST and CITY acknowledge that the ARTIST may have certain rights under California Civil Code Section 987 which are not pre-empted by VARA. In consideration of the terms and conditions in this Agreement, the ARTIST waives any rights which the ARTIST or the ARTIST's heirs, beneficiaries, devisees, or personal representatives may have under California Civil Code Section 987 to prevent the removal, destruction, distortion, mutilation, or other modification of the ARTWORK. Any contracts or written agreements between the ARTIST and his/her subcontractors or other artists contributing to the ARTWORK shall include a waiver of the ARTIST's rights under this Agreement. The ARTIST agrees to waive the rights under VARA to prevent the destruction, distortion, mutilation, or other modification of the ARTWORK. In the event of destruction, distortion, mutilation, or other modification of the ARTWORK without ARTIST'S consent in a manner that is prejudicial to the ARTIST'S reputation, ARTIST retains the right to disclaim authorship of the ARTWORK after the project is completed and accepted by the CITY. The ARTIST's rights under this Agreement shall cease with the ARTIST's death and do not extend to the ARTIST's heirs, successors or assigns. In addition, in the event that any element of the ARTWORK constitutes a public safety hazard, the CITY has the right to remove only the element posing the public safety hazard. The ARTIST, his or her agents, heirs, successors and assigns further agree not to attempt to defeat this waiver by cooperating, encouraging or assisting any organization which seeks to bring an action under these Acts. 15. SALE OR DONATION OF THE ARTWORK BY THE CITY The CITY shall have the right to donate or sell the ARTWORK at any time after acceptance of the ARTWORK. Before exercising this right, the CITY, by written notice to the ARTIST at ARTIST's last known address, agrees to give the ARTIST the opportunity to purchase the ARTWORK for the greater of the market value as determined by a qualified appraiser or the amount of any offer that the CITY has received for the purchase of the ARTWORK, plus all costs associated with the removal of the ARTWORK from the SITE, clean-up of the SITE and delivery to the ARTIST. ARTIST shall have thirty (30) days from the date of the CITY'S notice to exercise the option to purchase the ARTWORK. If ARTIST exercises this option and then rescinds the option to purchase, ARTIST shall be liable for all losses the CITY sustained as a result of the rescission to purchase the ARTWORK. 16. STATUS OF THE ARTIST ARTIST shall perform the services provided for herein in ARTIST's own way as an independent contractor and in pursuit of ARTIST's independent calling, and not as an employee of the CITY. ARTIST shall be under control of the CITY only as to the result to be accomplished, but shall consult with the CITY as provided for in this Agreement. 17. WITHHOLDINGS The CITY shall not make any federal or state tax withholdings on behalf of the ARTIST. The CITY shall not be required to pay workers' compensation insurance on behalf of the ARTIST. ARTIST agrees to indemnify the CITY for any tax, retirement contribution, social security, overtime payment, or workers' compensation payment which the CITY may be required to make on behalf of the ARTIST or any employee of the ARTIST for work done under this Agreement. 18. IMMIGRATION ACT ARTIST shall be aware of the requirements of the Immigration Reform and Control Act of 1986 and shall comply with those requirements, including but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that are included in this Agreement. 19. NONDISCRIMINATION CLAUSE ARTIST shall comply with the state and federal laws regarding nondiscrimination. 20. COVENANTS AGAINST CONTINGENT FEES ARTIST warrants that it has not employed or retained any company or person, other than a bona fide employee working for ARTIST, to solicit or secure this Agreement, and that ARTIST has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, the CITY shall have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. 21. HOLD HARMLESS AGREEMENT The CITY, its officers, and employees shall not be liable for any claims, liabilities, penalties, fines, for any damage to goods, properties, or effects of any person whatsoever, nor for personal injuries or death caused by, or resulting from, any intentional or negligent acts, errors or omissions of ARTIST or ARTIST'S agents, employees, or representatives. ARTIST agrees to defend, indemnify, and save free and harmless the CITY and its officers and employees against any of the foregoing liabilities or claims of any kinds, and any cost and expense including attorney's fees incurred by the CITY on account of any of the foregoing liabilities, including liabilities or claims by reason of alleged defects in the fabrication or installation of the ARTWORK. 21.1 Indemnification for Infringement. ARTIST also agrees to protect, defend, indemnify and hold the City harmless from any action, claim, suit or liability based on a claim that work performed under this Agreement by the ARTIST or his/her agents constitutes an infringement of any patent, copyright, trademark, trade name or other proprietary right of any party. 22. ASSIGNMENT OF CONTRACT ARTIST shall not assign this contract or any part therefore or any monies due thereunder without the prior written consent of the CITY. 23. SUBCONTRACTING If ARTIST subcontracts any of the work to be performed under this Agreement, ARTIST shall be fully responsible to the CITY for the acts and omissions of ARTIST's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as ARTIST is for the acts and omissions of persons directly employed by ARTIST. Nothing contained in this Agreement shall create any contractual relationship between any subcontractor of ARTIST and the CITY. The ARTIST shall bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to ARTIST's work unless specifically noted to the contrary in the subcontract in question and approved in writing by the CITY. 24. PROHIBITED INTEREST No official of the CITY who is authorized in such capacity on behalf of the CITY to negotiate, make, accept, or approve, or take part in negotiating, making, accepting, or approving of this Agreement, shall become directly or indirectly interested personally in this contract or in any part thereof. No officer or employee of the CITY who is authorized in such capacity and on behalf of the CITY to exercise any executive, supervisory, or similar functions in connection with the performance of this contract shall become directly or indirectly interested personally in this contract or any part thereof. 25. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of the CITY, either before, during or after the execution of this contract, shall affect or modify any of the terms or obligations herein contained nor entitle the ARTIST to any additional payment whatsoever under the terms of this contract. 26. EXHIBITS All exhibits referenced in this Agreement are attached hereto and incorporated herein by this reference. 27. CONFLICT OF INTEREST If requested by CITY, ARTIST shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The ARTIST shall report investment of interests in real property. (Remainder of Page Intentionally Left Blank) AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of ARTIST each represent and warrant that they have the legal power, right and actual authority to bind ARTIST to the terms and conditions of this Agreement. ARTIST By: I Jenna Didier, President (print name/title) t'nna Didier, CFO (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California By: KEVI City ATTEST: (1YYlc; ,~1111 Jd~~ (yn BARBARA ENGLESON City Clerk If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY: _;_Viv{_/ b---"---- Assistant City Attorney EXHIBIT "A" IMAGE -PUBLIC ART CONCEPT DESIGN Artwork Front and Side Elevations { :.· ; 10· 10· J }ii ---------______________ 40" ---·---------.. -/ FRONT ~-/ -------20' __ _ JO' ·/ SIDE EXHIBIT "B" PUBLIC ARTWORK NARRATIVE DESCRIPTION as provided by the Artist The concept for Pine Avenue Community Park began with a response to the RFQ issued by the City of Carlsbad for a "Garden Folly". The artwork is to be experienced as much as to be appreciated visually, anchoring one corner of the park, it is a destination and an iconic presence, "something between an object and a place". It is sited at the end of a long straight walkway that cuts through the southern section of the Pine Avenue Park Community Center & Garden Project. This park is wrapped to the south and west by Madison Street and Chestnut Street. The concept began to take form after multiple community engagement events where stakeholders communicated directly to the artist their ideas for the artwork which included that it be a contemplative space, a place to meet one's neighbors, abounding with flowers, with a water element and supportive of pollinators, children, and adults of all ages. The community asked for a place that would be illuminated at night and exude something of the sunshine, seaside and flowers of Carlsbad. Therefore, the artwork is designed as a contemplative, intimate space for small children and parents as well as bigger children and adults of all ages to come and explore the themes and importance of the interrelated roles of water, pollinating insects, plant diversity, and how things grow. Water is the focal point of the artwork. Carlsbad is rich in natural spring water. Some of the earliest known people, called by the early missionaries, Luiser'ios, benefitted from these natural springs, and in 1882, Carlsbad was founded by a group of businessmen who recognized the marketability of the naturally alkaline water. This special resource flows from the taps of Carlsbad and is celebrated in this artwork with the goal of indoctrinating each generation of park-goer in protecting and using (and reusing) their own local water. The artwork is conceived as a series of nested mesh shells located at the southwest corner of the park and at the end of a long walkway of Decomposed Granite (DG). The outer half-dome shell of steel mesh is 40' diameter x 16.5' tall, painted a brilliant color and supports flowering vines that are watered using drip irrigation. The next shell within it is also a half-dome of steel mesh, 30' diameter x 16.5' tall, painted a complementary color to the outer dome, and is rotated slightly to admit visitors from a path that cuts through the lower section of the park. A 24" gap along the base of each steel mesh dome allows for visibility and prevents debris from being trapped. The steel mesh of each dome has a small enough weave that it will not be climbable. The ground cover beneath these is DG. A central dome measures 1 0' in diameter and 10 to 12' in height. It is made of woven living willow that is planted in a ring surrounding a 1 0' diameter concrete disk at the center of which is a small water element. The central water element is a 20" tall x 12" diameter stack of sliced stone from a regional quarry that operates when activated by a visitor's presence. When a small outdoor-rated motion detector that is mounted above the water element (in the steel canopy of the 30' diameter hemisphere) senses someone near the water element, it begins to flow at a rate of no more than 60 gallons per hour (similar to a garden hose that is barely running). The water flows over the stacked stone and down to the ten-foot diameter patterned concrete surrounding the water element. From here, it slips into channels cut in the concrete and is conveyed to the outer perimeter of the concrete disk to irrigate willow trees that are planted there. The water element uses potable water -the water is not recirculated. The willow dome will be planted during a community event and will consist of 10 to 12 willow starts that are planted in prepared niches and woven to form a dome-shaped structure. The niches will have drip irrigation that will supplement the grey water runoff from the water element as needed. The willow dome will be woven in such a way as to inhibit the public from being able to climb it. After dark, the artwork is illuminated with in-ground low-voltage lighting that is around the inside perimeter of the outermost half-dome. There is also a single low-voltage "bullet light" that will be suspended from the unvegetated rim of the 30' steel half-dome. It will shine into the center of the willow dome, illuminating the water element. All the lighting will use white light only and be controlled via a light-sensing controller that turns the lights on as it grows dark and off as it grows light. T .g ~ .... 0 u ..J I co >< w EXHIBIT "C" SITE MAP: 3333 HARDING STREET, CARLSBAD, CA 92008 MA0l$0N GTfC[T EXHIBIT "D" ARTWORK MAINTENANCE as provided by the Artist The public artwork is designed to require minimal maintenance. A maintenance manual complete with manufacturer's specifications, installation, and maintenance guidelines will be provided by the artist at the completion of the installation. All workmanship comes with a one year guarantee. A separate two-year maintenance contract is recommended during the first years that the artwork is in place so that the artist may return to assist in pruning/shaping the willow dome. The steel mesh domes will be of galvanized steel then painted so as to reduce corrosion from the salt-laden sea air. It is estimated that every ten to fifteen years, the 30' half-dome will need a fresh application of paint. The 40' half-dome may never need more paint because it will be protected from the sun by the flowering vines it supports. The willow dome will retain its general shape without maintenance, requiring only some pruning/training twice a year to keep willow shoots from growing out beyond the dome, so as to avoid a "rangy" appearance. The patterned concrete deck may need to be power washed occasionally depending upon buildup of dirt/debris from visitors. If the concrete is damaged by graffiti or carving, the damage can be removed with a handheld grinder fitted with a wire brush. The water element will not require any specific maintenance. If the stone is damaged by graffiti or carving, the damage can be removed with a handheld grinder fitted with a wire brush. The motion detector and the solenoid valve that controls may have 10 to 20-year lifespan. These are off-the-shelf components that are readily replaced if damaged. Follow the manufacturer's maintenance guidelines for these components (to be provided with the Maintenance Package that the artist will furnish upon completion of the artwork). The irrigation system will be of the same components as are used in the rest of the park. Follow irrigation system components manufacturer's maintenance guidelines (to be provided with the Maintenance Package that the artist will furnish upon completion of the artwork). The lighting is standard LED low voltage lighting. It comes with a five-year warranty and has a minimal life of 50,000 hours. EXHIBIT "E" TASK & PAYMENT SCHEDULE The Artist will be provided by the Park Contractor the schedule and milestones of the Pine Avenue Park Community Center & Gardens Project to allow the Artist adequate information for scheduling purposes. It is expected that the ARTWORK be installed and operational prior to the grand opening celebration of the park improvements. The Cultural Arts Manager will notify Artist of schedule changes or modifications within 10 business days. To assist the Artist on support documentation, Cultural Arts Manager will provide Artist access to the following documents electronically as provided by the City staff: • Pine Avenue Park Community Center & Gardens Project General Provisions • Supplemental Provisions and Technical Specification • City of Carlsbad Landscape Manual • Site Plan showing location of stub outs for ARTWORK Task 1-Fabrication: Not-to-Exceed $80,000 Procure materials, fabricate ARTWORK, store and protect ARTWORK in coordination with staff and contractors. 1. $20,000 will be paid upon execution of the Agreement by all Parties for working on initial fabrication and installation of planning and designs. 2. Up to $30,000 will be paid after upon the procurement of all materials satisfactory to the CITY's Cultural Arts Manager. 3. Up to $20,000 will be paid upon 75 percent completion of the ARTWORK's fabrication, in a manner acceptable to the CITY's Cultural Arts Manager. 4. Up to $10,000 will be paid upon 100 percent completion of the ARTWORK's fabrication, in a manner acceptable to the CITY's Cultural Arts Manager. Task 2-Installation: Not-to-Exceed $14,000 Delivery and Installation of ARTWORK and providing Artist's ARTWORK Maintenance Package 5. *$7,000 will be paid upon completion of installation of the ARTWORK and verified by the Cultural Arts Manager. 6. $7,000 on the written acceptance of the ARTWORK by the CITY and in a manner acceptable to the Cultural Arts Manager. *The initial $7,000 payment listed under Task 2 is an advance on the total delivery and installation payment; if the installation is not completed in a manner acceptable to the Cultural Arts Manager, any advance payments must be returned by the Artist in a timely manner. The Artist bears the sole burden for ensuring that all legally required licenses and permits are obtained and renewed as specified by the regulating agency. This information is provided as a guide only. The Artist must verify and comply with all Federal, State, and Local requirements, whether listed here or not. All fees will be paid as specified above. Artist's invoice(s) will be submitted at the completion of each task. Invoices shall be sufficiently detailed to include related activities for approval by City.