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HomeMy WebLinkAboutReso 02-2018 (17-1077)City of South San Francisco City Council ' Resolution: RES 02 -2018 File Number: 17 -1077 P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA Enactment Number: RES 02 -2018 RESOLUTION APPROVING THE PURCHASE AND INSTALLATION OF THREE SCULPTURES: WINDSWEPT, BY BRIAN F. RUSSELL, PURCHASE PRICE OF $18,000; SLICES OF HEAVEN BY CRAIG GRAY, PURCHASE PRICE OF $16,000; AND POPSICLES BY CRAIG GRAY, PURCHASE PRICE OF $16,000; AND AMENDING THE FISCAL YEAR 2017 -18 PARKS AND RECREATION DEPARTMENT OPERATING BUDGET BY $50,000 PURSUANT TO BUDGET AMENDMENT #18.016. WHEREAS, in March 2017, staff issued a nationwide Call for Entries for sculptures to be installed in various designated areas in South San Francisco; and WHEREAS, staff received thirty-one sculpture entries from seventeen artists by the May 10, 2017 submission deadline; and WHEREAS, at the September 21, 2017 regular meeting of the Cultural Arts Commission, the Commission voted in favor of recommending to City Council for approval the purchase of Windswept by Brian F. Russell for the purchase price of $18,000; Slices of Heaven by Craig Gray for the purchase price of $16,000; and Popsicles by Craig Gray for the purchase price of $16,000, hereinafter collectively referred to as "Artwork "; and WHEREAS, staff recommends that the Artwork be installed in the following locations, hereinafter collectively referred to as "Sites ": Windswept be installed on the Westborough Boulevard median west of the Highway 280 off ramp; Slices of Heaven be installed on Tennis Drive at the east end of the Sculpture Garden at Orange Memorial Park; and Popsicles be installed at a location yet to be determined; or if necessary due to unforeseen Site restrictions, installation at an alternative Site as recommended by the Cultural Arts Commission; and WHEREAS, staff recommends amending the Fiscal Year (FY) 2017 -18 Parks and Recreation Department operating budget by $50,000 pursuant to Budget Amendment #18.016 to cover the purchase of the Artwork. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that the City Council hereby approves the purchase of the Artwork and approves the Art Purchase Agreements for the purchase of the Artwork with the Artists, in a form substantially similar to the Art Purchase Agreements City of South San Francisco Page 1 File Number. 17 -1077 attached to this resolution as Exhibit A, Exhibit B, and Exhibit C. Enactment Number: RES 02 -2018 BE IT FURTHER RESOLVED that the City Council approves the Sites in which the Artwork are to be installed, or if necessary due to unforeseen Site restrictions, at an alternative Site as determined by the Cultural Arts Commission. BE IT FURTHER RESOLVED that the City Council hereby amends the FY2017 -18 Parks and Recreation Department operating budget by $50,000 pursuant to Budget Amendment #18.016 to cover the cost of the Artwork. BE IT FURTHER RESOLVED by the City Council of the City of South San Francisco that the City Manager is hereby authorized to execute the Art Purchase Agreements with the Artists, in a form substantially similar to the Art Purchase Agreements attached to this resolution as Exhibit A, Exhibit B, and Exhibit C, on behalf of the City of South San Francisco, subject to the approval as to form by the City Attorney, and take any other related action necessary to further the intent of this resolution. At a meeting of the City Council on 1/10/2018, a motion was made by Mark Addiego, seconded by Richard Garbarino, that this Resolution be adopted. The motion passed. Yes: 5 Mayor Normandy, Councilmember Garbarino, Vice Mayor Matsumoto, Councilmember Cyupta, and Councilmember Addiego Attest by City of South San Francisco Page 2 1 ART PURCHASE AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND BRIAN F. RUSSELL THIS ART PURCHASE AGREEMENT (“Agreement”) is made at South San Francisco, California, as of January 11, 2018, by and between THE CITY OF SOUTH SAN FRANCISCO (“City”), a municipal corporation, and Brian F. Russell (“Artist”), (sometimes referred together as the “Parties”) who agree as follows: RECITALS A. WHEREAS, the City of South San Francisco solicited proposals for a Work of public art; and B. WHEREAS, the Artist submitted a proposal for public art pursuant to the City’s request for proposals; and C. WHEREAS, the sculpture by Artist titled Windswept, (hereinafter called “Work”) is being offered by the Artist for $18,000; and D. WHEREAS, City and Artist now desire City to purchase the Work for a flat fee of $18,000. NOW, THEREFORE, for and in consideration of the promises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Artist hereby agree as follows: ARTICLE I. SCOPE OF SERVICES A. GENERAL 1. Artist agrees to sell Work described in Exhibit A attached hereto and incorporated herein by reference, and City agrees to purchase Work from Artist. The specifications of the Work are as follows: a. Title: Windswept Dimensions: 120” x 48” x 30” Medium: Aluminum alloy with durable, clear graffiti-resistant urethane lacquer coating. 2. The permanent location for the Work (“Site”) will be determined by the City at a later date. 3. The Artist shall pay for actual, reasonable costs for transportation, meals, and lodging for the Artist representative while traveling to and from the City to assist with installation of the Work. Exhibit A - Page 1 2 4. Title of ownership of the Work shall pass to the City upon the execution of this Agreement. B. DELIVERY AND INSTALLATION 1. Work Delivery. Artist, at its sole cost and expense, shall deliver the Work to a location within the City, and at a date and time and in the manner coordinated with, and approved by the City. This includes, but is not limited to: packing, shipping, transportation and unloading of the Work at a pre-determined location. 2. The Artist shall work with the City in the development of the installation plan for the site selected by the City. 3. The City shall be responsible for all expenses, materials, labor and equipment to prepare the Site foundation footing for the timely installation of the Work. The City shall waive all permit fees, license fees, and sales taxes. The Artist shall deliver and supervise the installation of the completed Work at the Site. Cost of installation shall be paid for by the City which shall include the use of a boom truck and related equipment. Cost of delivery shall be paid for by the Artist. 4. The Artist shall coordinate with the City to prepare the Site for installation. The City shall use its best efforts to arrange to temporarily modify and/or barricade the Site so as to effectively secure the Site and protect the public during installation of the Work. 5. Attendance During Installation. Artist must be present at the Site during all City installation activities related to the Work. Artist shall reimburse City for any costs incurred in the event the Artist fails to be present during any installation or removal activities. Only upon issuance of a written and signed waiver by the City, can this requirement be waived. 6. In the installation and documentation of the Work, the Artist shall comply with all applicable federal, state and local laws, rules and regulations, including those pertaining to Worker’s Compensation insurance and employee liability insurance. 7. The Artist shall complete the installation of the Work by within seven months of the date of the deposit hereinafter described (hereinafter called ‘Installation Date”), or upon a mutually agreed upon date. C. POST-INSTALLATION 1. The Artist shall furnish the City with a full written narrative description of the Work. 2. The Artist shall provide to the City, written instructions for appropriate maintenance and preservation of the Work, including moving and reinstallation of the Work. 3. The City shall provide and install an identification plaque at the site of the Work, which shall include the following information: Exhibit A - Page 2 3 Title: Windswept Artist: Brian F. Russell Material: Aluminum alloy Date: 2016 D. FINAL ACCEPTANCE 1. The Artist shall notify the City in writing when all services required by the Artist under the Contract (including those described in Article I, Section C) have been completed. The Artist shall, prior to final acceptance, provide the City with such lien and/or claim releases with respect to the Work as the City may require. The Artist releases claim to the Work upon final acceptance. 2. The City shall notify the Artist in writing of its final acceptance of the Work. 3. Final acceptance shall be determined by the City in its sole and absolute discretion. Such acceptance shall constitute the City’s acknowledgement that the Work has been completed and installed according to the terms of this Contract. F. RISK OF LOSS 1. The risk of loss or damage to the Work shall be borne by the Artist until final acceptance, and the Artist shall take such measures as are necessary to protect the Work and the materials relating hereto from loss or damage and to insure the Work and the materials relating thereto until final acceptance. 2. The Artist shall maintain appropriate insurance on the Work, insuring against potential risk of loss, including but not limited to transportation and installation, in an amount acceptable and approved by the City’s Risk Manager. The City shall be shown as an additional insured for general liability. ARTICLE II. COMPENSATION A. PAYMENT SCHEDULE 1. The City shall pay the Artist a fixed fee of $18,000, which shall constitute full compensation for all services and materials to be performed and furnished by the Artist under this Contract. 2. The $18,000 fee shall be paid in the following phases with each installment except the Phase I installment to represent full and final payment for all services and materials provided for that phase: Exhibit A - Page 3 4 a. Phase 1 – One-half of the fee amounting to $9,000 upon execution of this Contract. b. Phase 2 – $9,000 upon final assembly of the sculptures. 3. For all other expenses for which the City is obligated, payment shall be made 30 days after receipt of written statement. B. FEE STATEMENTS In order to receive the payments described in clauses a. and b. above, the Artist shall submit an invoice to the City. ARTICLE III. TIME OF PERFORMANCE A. CITY DELAY If the Artist is delayed from installing the Work by the Installation Date as a result of action taken by the City, the City shall reimburse the Artist for actual transportation and storage costs incurred for the period between the Installation date and date on which the Site is available to permit installation of the work, if and only if, the transportation and storage cost are incurred as a direct result of the delay by the City. The City shall not be responsible for any transportation and storage costs that the Artist would have been required to pay in the absence of delay caused by the City. B. FORCE MAJEURE Except for the City’s obligations to make payments following the Payment Schedule neither party shall be considered in default in the performance of its obligations hereunder if such performance is prevented or delayed because of war, hostilities, revolution, civil commotion, strike, lock-out, epidemic, accident, fire, wind, catastrophic event or flood or because of any law, order, proclamation, regulation or ordinance of any government or of any subdivision thereof or because of any act of God or any other cause beyond the reasonable control of the party affected (“Force Majeure Event”); provided that the affected party shall have used its best efforts to avoid such condition and, provided further, that notice of such Force Majeure Event is given by the affected party to the other within five (5) days of said Force Majeure Event. Should one or both of the parties be prevented from fulfilling their contractual obligations because of a Force Majeure Event lasting continuously for a period of at least six (6) months, the parties shall consult with each other regarding the future implementation of this Agreement. The parties agree to use their best efforts to minimize any delays and/or losses, if any, resulting from such Force Majeure Event. C. ASSIGNMENT In the event of the serious illness or death of the Artist during the construction and/or the installation of the Work, his heirs, family and estate will in no way be responsible for the Exhibit A - Page 4 5 completion of the unfinished Work nor shall they be entitled to the compensation for uncompleted work due under this contract. ARTICLE IV. WARRANTIES A. WARRANTIES OF TITLE 1. The Artist represents and warrants that: a. The Work is solely the result of the artistic and creative efforts of the Artist; b. Except as otherwise disclosed in writing to the City, the Work is unique and original and does not infringe upon any Copyright; and c. The Work is free and clear of all liens from any source whatsoever. 2. The warranties described in this Section A shall survive for so long as the City or any successor of City owns the Work. B. WARRANTIES OF QUALITY AND CONDITION 1. The Artist represents and warrants that: a. The Work, as fabricated and installed, will be free of defects in material and workmanship, including any defects of “inherent vice” or qualities which may cause or accelerate deterioration of the Work; and b. Reasonable maintenance of the Work will not require procedures in excess of those described in Article I, Section C, subsection 2. 2. The warranties described in this Section shall survive for a period of one (1) year after final acceptance of the Work. The City shall give notice to the Artist of any observed breach of these warranties 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 warranties, which is curable and which cure is consistent with professional conservation standard (including, for example, cure by means of repair or re-fabrication of the Work). 3. The Artist shall not be responsible for any damage inflicted on the Work by third parties or outside forces, whether man-made or from natural causes, which exceed those that the design of the Work should reasonably tolerate. 4. After final acceptance of the Work by the City, the City shall hold the Artist harmless from any and all liability or personal injury to the public, except to the extent covered by the warranties of Article IV, Section B.1. Exhibit A - Page 5 6 ARTICLE V. OWNERSHIP OF WORK AND COPYRIGHT A. GENERAL The Artist retains Copyright in and to the work under the Copyright Act of 1976, 17 U.S.C., Section 101, et seq. The Artist reserves the right to produce similar Works at any size. The City shall first notify the Artist consistent with Section D herein as to identified location of the Work. If the Artist objects to the location, the only remedy available to the Artist is to request in writing that the City remove the identification plaque referred to in Article I, Section D, subsection 3 herein, and that the City not promote the Work as that of the Artist. Provided however, this provision in no way prohibits the City from truthfully responding to inquiries, oral and written, as to the name of the Artist. The Artist shall not unreasonably object to a change of location or alteration of the site. In the event of such a move, the City will preserve the Work as delivered by the Artist, allowing changes to the base as required by the new site, but no changes to the Work itself. The City agrees to consult with Artist in the event of such a move. B. IDENTITY OF ARTIST The Artist grants to the City and its assigns an irrevocable license to make two-dimensional reproductions of the Work for non-commercial purposes, including but not limited to reproductions used in advertising, brochures, media publicity, and catalogues or other publications, provided that these rights are exercised in a tasteful and professional manner. All two-dimensional reproductions of the Work by the City shall contain a credit to the Artist substantially in the following form: Windswept By Brian F. Russell (2016) C. NOTICES All notices required herein shall be in writing and served upon the parties as follows: Brian F. Russell 10385 Long Rd. Arlington, TN 38002 901-210-8193 City Clerk City of South San Francisco 400 Grand Avenue South San Francisco, CA 94083 (650) 829-3800 Exhibit A - Page 6 7 All notices required herein shall be deemed served when mailed by First Class Mail, Certified Mail, postage prepaid, to each party’s last known mailing address. It is the responsibility of each party to inform the other of a change in address. If notice cannot be served due to a change in address, which has not been served upon the other party, such party’s failure to notify shall be deemed a waiver of notice. ARTICLE VI. SUBSEQUENT EVENTS A. MAINTENANCE The City and the Artist recognize that maintenance of the Work on a regular basis is essential to the integrity of the Work. Therefore, the City shall assure regular maintenance according to the instructions supplied by the Artist as set forth herein under Article I, Section C.2 and may take action reasonably designed to protect the Work against vandalism. B. REPAIRS AND RESTORATION After final acceptance of the Work, the Artist may inspect the Work at his own expense and shall notify the City in writing as to the necessity of any repairs. The City may in its discretion consult with the Artist and make the noted repairs. All such consultations shall be without additional cost to the City. Beyond reasonable consultation to determine a course of corrective action, any action taken by the Artist at the request of the City will be subject to a cost to be decided in a new agreement between the parties. C. FUTURE MODIFICATION OR RELOCATION 1. City has the right to remove the Artwork from the Site at any time. In addition, in the event that any element of the Artwork constitutes a public safety hazard, City has the right to remove the element posing the public safety hazard. 2. Except to the extent permitted by subsection 1 above, City agrees not to intentionally modify the Artwork without first obtaining Artist’s written consent. 3. City shall have the right to dispose of the Work, in any manner that the City deems appropriate, at any time. Before exercising this right, City, by written notice to Artist at Artist’s last known address, agrees to give Artist the opportunity to purchase the Artwork for the greater of the Total Price or the amount of any offer which 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 Artist. Artist shall have thirty (30) days from the date of City’s notice to exercise the option to purchase the Artwork. 4. Without limitation of City’s rights under this Agreement, it is City’s practice to notify and consult with the Artist before intentionally moving, relocating or removing artwork. If, after the initial discussion, Artist and City do not reach a mutually Exhibit A - Page 7 8 agreeable decision regarding relocation or modification of an Artwork, or do not agree upon compensation to Artist for providing Artist’s input on proposed relocation or modification, City may take such actions as City deems necessary in management of its Artwork, and no further agreement or compensation is due to Artist. Notwithstanding the foregoing, whether or not City notified or consulted with Artist, if City removes, relocates, or modifies the Artwork without Artist’s prior written consent, City shall not be liable to Artist for damages. Under such circumstances, if Artist objects to the modification or new location, then (i) City may restore the Artwork or replace the Artwork to its original location, or (ii) if the City does not restore the Artwork or to relocate the Artwork to the original location, Artist may request that Artist’s association with Artwork be severed. In either event, City shall have no further obligation or liability to Artist. 5. If City moves the Artwork from its originally installed location without Artist’s oversight, Artist shall not be held responsible for the structural integrity or safety of the Artwork to the extent that City’s action impaired the structural integrity or safety of the Artwork, nor shall Artist be held responsible for code compliance of the Artwork to the extent that City’s action rendered the Artwork non-compliant with applicable codes. 6. Artist’s rights under this Agreement cease with Artist’s death and do not extend to Artist’s heirs, successors or assigns. D. WAIVER OF RIGHTS The Artist understands and agrees that the provisions of this Article VI shall control over the provisions of 17 U.S.C. – 106A (a), known as the Visual Artist Rights Act of 1990 (“VARA”), and other laws granting the Artist any “moral rights” or similar rights as to the Work, and shall constitute a waiver by the Artist of any rights with the exception of copyright, in the Work set out in or otherwise granted by 17 U.S.C. – 106A (a) or in such other laws. ARTICLE VII. INDEPENDENT CONTRACTOR The Artist performs this contract as an independent contractor and not as an agent of an employee of the City. The Artist shall maintain control; furnish all supervision, labor, materials, equipment, supplies, other incidentals, as well as transportation, shipping and installation of the Work. ARTICLE VIII. ASSIGNMENT The work and services required of the Artist under this Contract are personal and shall not be assigned, sublet or transferred. However, the Artist shall be allowed to employ qualified personnel who shall work under the Artist’s supervision. Exhibit A - Page 8 9 ARTICLE IX. INDEMNIFICATION The Artist shall defend, release, indemnify and save and hold harmless the City against any and all damages to property or injuries to or death of any person or persons, and shall defend, release, indemnify and hold harmless the City from any and all claims, demands, suits, liabilities, actions, causes of actions, or legal or equitable proceedings of any kind or nature, including reasonable attorney’s fees incurred by legal counsel of the City’s choice, or by anyone whomsoever, in any way resulting from or arising out of the Artist’s activities in connection with this Contract, including acts of omissions of the Artist or persons acting under the Artist’s control. The City shall defend, release, indemnify and save and hold harmless the Artist against any and all damages to property or injuries to or death of any person or persons, and shall defend, release, indemnify and hold harmless the Artist from any and all claims, demands, suits, liabilities, actions, causes of actions, or legal or equitable proceedings of any kind or nature, including reasonable attorney’s fees incurred by legal counsel of the Artist's choice, or by anyone whomsoever, in any way resulting from or arising out of the City's activities in connection with this Contract, including acts of omissions of the City or persons acting under the City's control. ARTICLE X. TERMINATION & MEDIATION A. TERMINATION 1. If either the Artist or the City 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 Contract, the other party shall thereupon have the right to terminate this Contract by giving written notice to the defaulting party of its intent to terminate and specifying the grounds for termination. The defaulting party shall have thirty days (30) after receipt of the notice to cure the default. If the default is not cured within such time period, this Contract shall terminate. 2. In the event of a default by the City, the City shall promptly compensate the Artist pursuant to Article II for all services performed by the Artist prior to termination, and all finished and unfinished drawings, sketches, photographs and other work products prepared and submitted or prepared for submission by the Artist under this Contract shall at the City’s option become its property, provided that no right to fabricate or execute the Work shall pass to the City. 3. In the event of a default by the Artist, shall forfeit the right to any and all remaining payments due under this contract for which Work has not been completed as well as any and all copyrights reserved herein and any and all limited edition rights as defined herein. B. MEDIATION If, during the creation of the Work, its installation and subsequent existence, any disputes should arise between the Artist and the City, the parties hereto will mediate their Exhibit A - Page 9 10 disagreements and make every effort to affect a mutually satisfactory resolution of the disagreements including the appointment of an independent mediator reasonably acceptable to both parties. If unable to agree, a mediator shall be appointed by the court. Costs will be equally divided. ARTICLE XI. MODIFICATION No alteration, change or modification of the terms of this Contract shall be valid unless made in writing and signed by the parties hereto. ARTICLE XII. CONFLICT OF LAW Any provision of this Contract, which is hereafter found by a court of law or otherwise to be in conflict with the laws, rules, and/or regulations of the United States or the State of California shall be considered null and void. The valid provisions of this Contract shall be severed from the invalid provisions and remain in effect to the extent possible. The law of the State of California shall govern the interpretation of this contract. ARTICLE XIII. CHOICE OF LAW All conflicts, causes of actions and civil disputes shall be filed in the Superior Court. ARTICLE XIV. EFFECTIVE DATE The effective date of this Contract shall be the date of approval by all parties hereto. ARTICLE XV. COUNTERPARTS FOR SIGNATURE This contract may be executed in duplicate counterparts, each of which shall be deemed an original. Attest to: City of South San Francisco _____________________________ ______________________________ City Clerk City Manager (Corporate Seal) Attest to: _____________________________ Brian F. Russell Exhibit A - Page 10 Exhibit A Exhibit A - Page 11 Exhibit A Exhibit A - Page 12 Exhibit A Exhibit A - Page 13 Exhibit A Exhibit A - Page 14 Exhibit A Exhibit A - Page 15 Exhibit A Exhibit A - Page 16 1 ART PURCHASE AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND CRAIG GRAY THIS ART PURCHASE AGREEMENT (“Agreement”) is made at South San Francisco, California, as of January 11, 2018, by and between THE CITY OF SOUTH SAN FRANCISCO (“City”), a municipal corporation, and Craig Gray (“Artist”), (sometimes referred together as the “Parties”) who agree as follows: RECITALS A. WHEREAS, the City of South San Francisco solicited proposals for a Work of public art; and B. WHEREAS, the Artist submitted a proposal for public art pursuant to the City’s request for proposals; and C. WHEREAS, the sculpture by Artist titled Slices of Heaven, (hereinafter called “Work”) is being offered by the Artist for $16,000; and D. WHEREAS, City and Artist now desire City to purchase the Work for a flat fee of $16,000. NOW, THEREFORE, for and in consideration of the promises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Artist hereby agree as follows: ARTICLE I. SCOPE OF SERVICES A. GENERAL 1. Artist agrees to sell Work described in Exhibit A attached hereto and incorporated herein by reference, and City agrees to purchase Work from Artist. The specifications of the Work are as follows: a. Title: Slices of Heaven Dimensions: 48” x 48” x108” Medium: Stucco, steel, pressure-treated plywood 2. The permanent location for the Work (“Site”) will be determined by the City at a later date. 3. The Artist shall pay for actual, reasonable costs for transportation, meals, and lodging for the Artist representative while traveling to and from the City to assist with installation of the Work. Exhibit B - Slices of Heaven 2 4. Title of ownership of the Work shall pass to the City upon the execution of this Agreement. B. DELIVERY AND INSTALLATION 1. Work Delivery. Artist, at its sole cost and expense, shall deliver the Work to a location within the City, and at a date and time and in the manner coordinated with, and approved by the City. This includes, but is not limited to: packing, shipping, transportation and unloading of the Work at a pre-determined location. 2. The Artist shall work with the City in the development of the installation plan for the site selected by the City. 3. The City shall be responsible for all expenses, materials, labor and equipment to prepare the Site foundation footing for the timely installation of the Work. The City shall waive all permit fees, license fees, and sales taxes. The Artist shall deliver and supervise the installation of the completed Work at the Site. Cost of installation shall be paid for by the City which shall include the use of a boom truck and related equipment. Cost of delivery shall be paid for by the Artist. 4. The Artist shall coordinate with the City to prepare the Site for installation. The City shall use its best efforts to arrange to temporarily modify and/or barricade the Site so as to effectively secure the Site and protect the public during installation of the Work. 5. Attendance During Installation. Artist must be present at the Site during all City installation activities related to the Work. Artist shall reimburse City for any costs incurred in the event the Artist fails to be present during any installation or removal activities. Only upon issuance of a written and signed waiver by the City, can this requirement be waived. 6. In the installation and documentation of the Work, the Artist shall comply with all applicable federal, state and local laws, rules and regulations, including those pertaining to Worker’s Compensation insurance and employee liability insurance. 7. The Artist shall complete the installation of the Work by within seven months of the date of the deposit hereinafter described (hereinafter called ‘Installation Date”), or upon a mutually agreed upon date. C. POST-INSTALLATION 1. The Artist shall furnish the City with a full written narrative description of the Work. 2. The Artist shall provide to the City, written instructions for appropriate maintenance and preservation of the Work, including moving and reinstallation of the Work. 3. The City shall provide and install an identification plaque at the site of the Work, which shall include the following information: Exhibit B - Slices of Heaven 3 Title: Slices of Heaven Artist: Craig Gray Material: stucco, steel, plywood Date: 2017 D. FINAL ACCEPTANCE 1. The Artist shall notify the City in writing when all services required by the Artist under the Contract (including those described in Article I, Section C) have been completed. The Artist shall, prior to final acceptance, provide the City with such lien and/or claim releases with respect to the Work as the City may require. The Artist releases claim to the Work upon final acceptance. 2. The City shall notify the Artist in writing of its final acceptance of the Work. 3. Final acceptance shall be determined by the City in its sole and absolute discretion. Such acceptance shall constitute the City’s acknowledgement that the Work has been completed and installed according to the terms of this Contract. F. RISK OF LOSS 1. The risk of loss or damage to the Work shall be borne by the Artist until final acceptance, and the Artist shall take such measures as are necessary to protect the Work and the materials relating hereto from loss or damage and to insure the Work and the materials relating thereto until final acceptance. 2. The Artist shall maintain appropriate insurance on the Work, insuring against potential risk of loss, including but not limited to transportation and installation, in an amount acceptable and approved by the City’s Risk Manager. The City shall be shown as an additional insured for general liability. ARTICLE II. COMPENSATION A. PAYMENT SCHEDULE 1. The City shall pay the Artist a fixed fee of $16,000, which shall constitute full compensation for all services and materials to be performed and furnished by the Artist under this Contract. 2. The $16,000 fee shall be paid in the following phases with each installment except the Phase I installment to represent full and final payment for all services and materials provided for that phase: Exhibit B - Slices of Heaven 4 a. Phase 1 – One-half of the fee amounting to $8,000 upon execution of this Contract. b. Phase 2 – $8,000 upon final assembly of the sculptures. 3. For all other expenses for which the City is obligated, payment shall be made 30 days after receipt of written statement. B. FEE STATEMENTS In order to receive the payments described in clauses a. and b. above, the Artist shall submit an invoice to the City. ARTICLE III. TIME OF PERFORMANCE A. CITY DELAY If the Artist is delayed from installing the Work by the Installation Date as a result of action taken by the City, the City shall reimburse the Artist for actual transportation and storage costs incurred for the period between the Installation date and date on which the Site is available to permit installation of the work, if and only if, the transportation and storage cost are incurred as a direct result of the delay by the City. The City shall not be responsible for any transportation and storage costs that the Artist would have been required to pay in the absence of delay caused by the City. B. FORCE MAJEURE Except for the City’s obligations to make payments following the Payment Schedule neither party shall be considered in default in the performance of its obligations hereunder if such performance is prevented or delayed because of war, hostilities, revolution, civil commotion, strike, lock-out, epidemic, accident, fire, wind, catastrophic event or flood or because of any law, order, proclamation, regulation or ordinance of any government or of any subdivision thereof or because of any act of God or any other cause beyond the reasonable control of the party affected (“Force Majeure Event”); provided that the affected party shall have used its best efforts to avoid such condition and, provided further, that notice of such Force Majeure Event is given by the affected party to the other within five (5) days of said Force Majeure Event. Should one or both of the parties be prevented from fulfilling their contractual obligations because of a Force Majeure Event lasting continuously for a period of at least six (6) months, the parties shall consult with each other regarding the future implementation of this Agreement. The parties agree to use their best efforts to minimize any delays and/or losses, if any, resulting from such Force Majeure Event. C. ASSIGNMENT In the event of the serious illness or death of the Artist during the construction and/or the installation of the Work, his heirs, family and estate will in no way be responsible for the Exhibit B - Slices of Heaven 5 completion of the unfinished Work nor shall they be entitled to the compensation for uncompleted work due under this contract. ARTICLE IV. WARRANTIES A. WARRANTIES OF TITLE 1. The Artist represents and warrants that: a. The Work is solely the result of the artistic and creative efforts of the Artist; b. Except as otherwise disclosed in writing to the City, the Work is unique and original and does not infringe upon any Copyright; and c. The Work is free and clear of all liens from any source whatsoever. 2. The warranties described in this Section A shall survive for so long as the City or any successor of City owns the Work. B. WARRANTIES OF QUALITY AND CONDITION 1. The Artist represents and warrants that: a. The Work, as fabricated and installed, will be free of defects in material and workmanship, including any defects of “inherent vice” or qualities which may cause or accelerate deterioration of the Work; and b. Reasonable maintenance of the Work will not require procedures in excess of those described in Article I, Section C, subsection 2. 2. The warranties described in this Section shall survive for a period of one (1) year after final acceptance of the Work. The City shall give notice to the Artist of any observed breach of these warranties 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 warranties, which is curable and which cure is consistent with professional conservation standard (including, for example, cure by means of repair or re-fabrication of the Work). 3. The Artist shall not be responsible for any damage inflicted on the Work by third parties or outside forces, whether man-made or from natural causes, which exceed those that the design of the Work should reasonably tolerate. 4. After final acceptance of the Work by the City, the City shall hold the Artist harmless from any and all liability or personal injury to the public, except to the extent covered by the warranties of Article IV, Section B.1. Exhibit B - Slices of Heaven 6 ARTICLE V. OWNERSHIP OF WORK AND COPYRIGHT A. GENERAL The Artist retains Copyright in and to the work under the Copyright Act of 1976, 17 U.S.C., Section 101, et seq. The Artist reserves the right to produce similar Works at any size. The City shall first notify the Artist consistent with Section D herein as to identified location of the Work. If the Artist objects to the location, the only remedy available to the Artist is to request in writing that the City remove the identification plaque referred to in Article I, Section D, subsection 3 herein, and that the City not promote the Work as that of the Artist. Provided however, this provision in no way prohibits the City from truthfully responding to inquiries, oral and written, as to the name of the Artist. The Artist shall not unreasonably object to a change of location or alteration of the site. In the event of such a move, the City will preserve the Work as delivered by the Artist, allowing changes to the base as required by the new site, but no changes to the Work itself. The City agrees to consult with Artist in the event of such a move. B. IDENTITY OF ARTIST The Artist grants to the City and its assigns an irrevocable license to make two-dimensional reproductions of the Work for non-commercial purposes, including but not limited to reproductions used in advertising, brochures, media publicity, and catalogues or other publications, provided that these rights are exercised in a tasteful and professional manner. All two-dimensional reproductions of the Work by the City shall contain a credit to the Artist substantially in the following form: Slices of Heaven By Craig Gray (2017) C. NOTICES All notices required herein shall be in writing and served upon the parties as follows: Craig Gray 102B Peary Court Key West, FL 33040 305-432-6856 City Clerk City of South San Francisco 400 Grand Avenue South San Francisco, CA 94083 (650) 829-3800 Exhibit B - Slices of Heaven 7 All notices required herein shall be deemed served when mailed by First Class Mail, Certified Mail, postage prepaid, to each party’s last known mailing address. It is the responsibility of each party to inform the other of a change in address. If notice cannot be served due to a change in address, which has not been served upon the other party, such party’s failure to notify shall be deemed a waiver of notice. ARTICLE VI. SUBSEQUENT EVENTS A. MAINTENANCE The City and the Artist recognize that maintenance of the Work on a regular basis is essential to the integrity of the Work. Therefore, the City shall assure regular maintenance according to the instructions supplied by the Artist as set forth herein under Article I, Section C.2 and may take action reasonably designed to protect the Work against vandalism. B. REPAIRS AND RESTORATION After final acceptance of the Work, the Artist may inspect the Work at his own expense and shall notify the City in writing as to the necessity of any repairs. The City may in its discretion consult with the Artist and make the noted repairs. All such consultations shall be without additional cost to the City. Beyond reasonable consultation to determine a course of corrective action, any action taken by the Artist at the request of the City will be subject to a cost to be decided in a new agreement between the parties. C. FUTURE MODIFICATION OR RELOCATION 1. City has the right to remove the Artwork from the Site at any time. In addition, in the event that any element of the Artwork constitutes a public safety hazard, City has the right to remove the element posing the public safety hazard. 2. Except to the extent permitted by subsection 1 above, City agrees not to intentionally modify the Artwork without first obtaining Artist’s written consent. 3. City shall have the right to dispose of the Work, in any manner that the City deems appropriate, at any time. Before exercising this right, City, by written notice to Artist at Artist’s last known address, agrees to give Artist the opportunity to purchase the Artwork for the greater of the Total Price or the amount of any offer which 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 Artist. Artist shall have thirty (30) days from the date of City’s notice to exercise the option to purchase the Artwork. 4. Without limitation of City’s rights under this Agreement, it is City’s practice to notify and consult with the Artist before intentionally moving, relocating or removing artwork. If, after the initial discussion, Artist and City do not reach a mutually agreeable decision regarding relocation or modification of an Artwork, or do not Exhibit B - Slices of Heaven 8 agree upon compensation to Artist for providing Artist’s input on proposed relocation or modification, City may take such actions as City deems necessary in management of its Artwork, and no further agreement or compensation is due to Artist. Notwithstanding the foregoing, whether or not City notified or consulted with Artist, if City removes, relocates, or modifies the Artwork without Artist’s prior written consent, City shall not be liable to Artist for damages. Under such circumstances, if Artist objects to the modification or new location, then (i) City may restore the Artwork or replace the Artwork to its original location, or (ii) if the City does not restore the Artwork or to relocate the Artwork to the original location, Artist may request that Artist’s association with Artwork be severed. In either event, City shall have no further obligation or liability to Artist. 5. If City moves the Artwork from its originally installed location without Artist’s oversight, Artist shall not be held responsible for the structural integrity or safety of the Artwork to the extent that City’s action impaired the structural integrity or safety of the Artwork, nor shall Artist be held responsible for code compliance of the Artwork to the extent that City’s action rendered the Artwork non-compliant with applicable codes. 6. Artist’s rights under this Agreement cease with Artist’s death and do not extend to Artist’s heirs, successors or assigns. D. WAIVER OF RIGHTS The Artist understands and agrees that the provisions of this Article VI shall control over the provisions of 17 U.S.C. – 106A (a), known as the Visual Artist Rights Act of 1990 (“VARA”), and other laws granting the Artist any “moral rights” or similar rights as to the Work, and shall constitute a waiver by the Artist of any rights with the exception of copyright, in the Work set out in or otherwise granted by 17 U.S.C. – 106A (a) or in such other laws. ARTICLE VII. INDEPENDENT CONTRACTOR The Artist performs this contract as an independent contractor and not as an agent of an employee of the City. The Artist shall maintain control; furnish all supervision, labor, materials, equipment, supplies, other incidentals, as well as transportation, shipping and installation of the Work. ARTICLE VIII. ASSIGNMENT The work and services required of the Artist under this Contract are personal and shall not be assigned, sublet or transferred. However, the Artist shall be allowed to employ qualified personnel who shall work under the Artist’s supervision. Exhibit B - Slices of Heaven 9 ARTICLE IX. INDEMNIFICATION The Artist shall defend, release, indemnify and save and hold harmless the City against any and all damages to property or injuries to or death of any person or persons, and shall defend, release, indemnify and hold harmless the City from any and all claims, demands, suits, liabilities, actions, causes of actions, or legal or equitable proceedings of any kind or nature, including reasonable attorney’s fees incurred by legal counsel of the City’s choice, or by anyone whomsoever, in any way resulting from or arising out of the Artist’s activities in connection with this Contract, including acts of omissions of the Artist or persons acting under the Artist’s control. The City shall defend, release, indemnify and save and hold harmless the Artist against any and all damages to property or injuries to or death of any person or persons, and shall defend, release, indemnify and hold harmless the Artist from any and all claims, demands, suits, liabilities, actions, causes of actions, or legal or equitable proceedings of any kind or nature, including reasonable attorney’s fees incurred by legal counsel of the Artist's choice, or by anyone whomsoever, in any way resulting from or arising out of the City's activities in connection with this Contract, including acts of omissions of the City or persons acting under the City's control. ARTICLE X. TERMINATION & MEDIATION A. TERMINATION 1. If either the Artist or the City 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 Contract, the other party shall thereupon have the right to terminate this Contract by giving written notice to the defaulting party of its intent to terminate and specifying the grounds for termination. The defaulting party shall have thirty days (30) after receipt of the notice to cure the default. If the default is not cured within such time period, this Contract shall terminate. 2. In the event of a default by the City, the City shall promptly compensate the Artist pursuant to Article II for all services performed by the Artist prior to termination, and all finished and unfinished drawings, sketches, photographs and other work products prepared and submitted or prepared for submission by the Artist under this Contract shall at the City’s option become its property, provided that no right to fabricate or execute the Work shall pass to the City. 3. In the event of a default by the Artist, shall forfeit the right to any and all remaining payments due under this contract for which Work has not been completed as well as any and all copyrights reserved herein and any and all limited edition rights as defined herein. B. MEDIATION If, during the creation of the Work, its installation and subsequent existence, any disputes should arise between the Artist and the City, the parties hereto will mediate their Exhibit B - Slices of Heaven 10 disagreements and make every effort to affect a mutually satisfactory resolution of the disagreements including the appointment of an independent mediator reasonably acceptable to both parties. If unable to agree, a mediator shall be appointed by the court. Costs will be equally divided. ARTICLE XI. MODIFICATION No alteration, change or modification of the terms of this Contract shall be valid unless made in writing and signed by the parties hereto. ARTICLE XII. CONFLICT OF LAW Any provision of this Contract, which is hereafter found by a court of law or otherwise to be in conflict with the laws, rules, and/or regulations of the United States or the State of California shall be considered null and void. The valid provisions of this Contract shall be severed from the invalid provisions and remain in effect to the extent possible. The law of the State of California shall govern the interpretation of this contract. ARTICLE XIII. CHOICE OF LAW All conflicts, causes of actions and civil disputes shall be filed in the Superior Court. ARTICLE XIV. EFFECTIVE DATE The effective date of this Contract shall be the date of approval by all parties hereto. ARTICLE XV. COUNTERPARTS FOR SIGNATURE This contract may be executed in duplicate counterparts, each of which shall be deemed an original. Attest to: City of South San Francisco _____________________________ ______________________________ City Clerk City Manager (Corporate Seal) Attest to: _____________________________ Craig Gray Exhibit B - Slices of Heaven Exhibit A Exhibit B - Slices of Heaven Exhibit A Exhibit B - Slices of Heaven Exhibit A Exhibit B - Slices of Heaven Exhibit A Exhibit B - Slices of Heaven Exhibit A Exhibit B - Slices of Heaven Exhibit A Exhibit B - Slices of Heaven Exhibit A Exhibit B - Slices of Heaven Exhibit A Exhibit B - Slices of Heaven Exhibit A Exhibit B - Slices of Heaven 1 ART PURCHASE AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND CRAIG GRAY THIS ART PURCHASE AGREEMENT (“Agreement”) is made at South San Francisco, California, as of January 11, 2018, by and between THE CITY OF SOUTH SAN FRANCISCO (“City”), a municipal corporation, and Craig Gray (“Artist”), (sometimes referred together as the “Parties”) who agree as follows: RECITALS A.WHEREAS, the City of South San Francisco solicited proposals for a Work of public art; and B.WHEREAS, the Artist submitted a proposal for public art pursuant to the City’s request for proposals; and C.WHEREAS, the sculpture by Artist titled Popsicles, (hereinafter called “Work”) is being offered by the Artist for $16,000; and D.WHEREAS, City and Artist now desire City to purchase the Work for a flat fee of $16,000. NOW, THEREFORE, for and in consideration of the promises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Artist hereby agree as follows: ARTICLE I. SCOPE OF SERVICES A.GENERAL 1.Artist agrees to sell Work described in Exhibit A attached hereto and incorporated herein by reference, and City agrees to purchase Work from Artist. The specifications of the Work are as follows: a.Title: Popsicles Dimensions: 60” x 60” x108” Medium: Stucco, steel, pressure-treated plywood 2.The permanent location for the Work (“Site”) will be determined by the City at a later date. 3.The Artist shall pay for actual, reasonable costs for transportation, meals, and lodging for the Artist representative while traveling to and from the City to assist with installation of the Work. Exhibit C - Popsicles 2 4.Title of ownership of the Work shall pass to the City upon the execution of this Agreement. B.DELIVERY AND INSTALLATION 1.Work Delivery. Artist, at its sole cost and expense, shall deliver the Work to a location within the City, and at a date and time and in the manner coordinated with, and approved by the City. This includes, but is not limited to: packing, shipping, transportation and unloading of the Work at a pre-determined location. 2.The Artist shall work with the City in the development of the installation plan for the site selected by the City. 3.The City shall be responsible for all expenses, materials, labor and equipment to prepare the Site foundation footing for the timely installation of the Work. The City shall waive all permit fees, license fees, and sales taxes. The Artist shall deliver and supervise the installation of the completed Work at the Site. Cost of installation shall be paid for by the City which shall include the use of a boom truck and related equipment. Cost of delivery shall be paid for by the Artist. 4.The Artist shall coordinate with the City to prepare the Site for installation. The City shall use its best efforts to arrange to temporarily modify and/or barricade the Site so as to effectively secure the Site and protect the public during installation of the Work. 5.Attendance During Installation. Artist must be present at the Site during all City installation activities related to the Work. Artist shall reimburse City for any costs incurred in the event the Artist fails to be present during any installation or removal activities. Only upon issuance of a written and signed waiver by the City, can this requirement be waived. 6.In the installation and documentation of the Work, the Artist shall comply with all applicable federal, state and local laws, rules and regulations, including those pertaining to Worker’s Compensation insurance and employee liability insurance. 7.The Artist shall complete the installation of the Work by within seven months of the date of the deposit hereinafter described (hereinafter called ‘Installation Date”), or upon a mutually agreed upon date. C.POST-INSTALLATION 1.The Artist shall furnish the City with a full written narrative description of the Work. 2.The Artist shall provide to the City, written instructions for appropriate maintenance and preservation of the Work, including moving and reinstallation of the Work. 3.The City shall provide and install an identification plaque at the site of the Work, which shall include the following information: Exhibit C - Popsicles 3 Title: Popsicles Artist: Craig Gray Material: stucco, steel, plywood Date: 2016 D.FINAL ACCEPTANCE 1.The Artist shall notify the City in writing when all services required by the Artist under the Contract (including those described in Article I, Section C) have been completed. The Artist shall, prior to final acceptance, provide the City with such lien and/or claim releases with respect to the Work as the City may require. The Artist releases claim to the Work upon final acceptance. 2.The City shall notify the Artist in writing of its final acceptance of the Work. 3.Final acceptance shall be determined by the City in its sole and absolute discretion. Such acceptance shall constitute the City’s acknowledgement that the Work has been completed and installed according to the terms of this Contract. F.RISK OF LOSS 1.The risk of loss or damage to the Work shall be borne by the Artist until final acceptance, and the Artist shall take such measures as are necessary to protect the Work and the materials relating hereto from loss or damage and to insure the Work and the materials relating thereto until final acceptance. 2.The Artist shall maintain appropriate insurance on the Work, insuring against potential risk of loss, including but not limited to transportation and installation, in an amount acceptable and approved by the City’s Risk Manager. The City shall be shown as an additional insured for general liability. ARTICLE II. COMPENSATION A.PAYMENT SCHEDULE 1.The City shall pay the Artist a fixed fee of $16,000, which shall constitute full compensation for all services and materials to be performed and furnished by the Artist under this Contract. 2.The $16,000 fee shall be paid in the following phases with each installment except the Phase I installment to represent full and final payment for all services and materials provided for that phase: Exhibit C - Popsicles 4 a.Phase 1 – One-half of the fee amounting to $8,000 upon execution of this Contract. b.Phase 2 – $8,000 upon final assembly of the sculptures. 3.For all other expenses for which the City is obligated, payment shall be made 30 days after receipt of written statement. B.FEE STATEMENTS In order to receive the payments described in clauses a. and b. above, the Artist shall submit an invoice to the City. ARTICLE III. TIME OF PERFORMANCE A.CITY DELAY If the Artist is delayed from installing the Work by the Installation Date as a result of action taken by the City, the City shall reimburse the Artist for actual transportation and storage costs incurred for the period between the Installation date and date on which the Site is available to permit installation of the work, if and only if, the transportation and storage cost are incurred as a direct result of the delay by the City. The City shall not be responsible for any transportation and storage costs that the Artist would have been required to pay in the absence of delay caused by the City. B.FORCE MAJEURE Except for the City’s obligations to make payments following the Payment Schedule neither party shall be considered in default in the performance of its obligations hereunder if such performance is prevented or delayed because of war, hostilities, revolution, civil commotion, strike, lock-out, epidemic, accident, fire, wind, catastrophic event or flood or because of any law, order, proclamation, regulation or ordinance of any government or of any subdivision thereof or because of any act of God or any other cause beyond the reasonable control of the party affected (“Force Majeure Event”); provided that the affected party shall have used its best efforts to avoid such condition and, provided further, that notice of such Force Majeure Event is given by the affected party to the other within five (5) days of said Force Majeure Event. Should one or both of the parties be prevented from fulfilling their contractual obligations because of a Force Majeure Event lasting continuously for a period of at least six (6)months, the parties shall consult with each other regarding the future implementation of this Agreement. The parties agree to use their best efforts to minimize any delays and/or losses, if any, resulting from such Force Majeure Event. C.ASSIGNMENT In the event of the serious illness or death of the Artist during the construction and/or the installation of the Work, his heirs, family and estate will in no way be responsible for the Exhibit C - Popsicles 5 completion of the unfinished Work nor shall they be entitled to the compensation for uncompleted work due under this contract. ARTICLE IV. WARRANTIES A.WARRANTIES OF TITLE 1.The Artist represents and warrants that: a.The Work is solely the result of the artistic and creative efforts of the Artist; b.Except as otherwise disclosed in writing to the City, the Work is unique and original and does not infringe upon any Copyright; and c.The Work is free and clear of all liens from any source whatsoever. 2.The warranties described in this Section A shall survive for so long as the City or any successor of City owns the Work. B.WARRANTIES OF QUALITY AND CONDITION 1.The Artist represents and warrants that: a.The Work, as fabricated and installed, will be free of defects in material and workmanship, including any defects of “inherent vice” or qualities which may cause or accelerate deterioration of the Work; and b.Reasonable maintenance of the Work will not require procedures in excess of those described in Article I, Section C, subsection 2. 2.The warranties described in this Section shall survive for a period of one (1) year after final acceptance of the Work. The City shall give notice to the Artist of any observed breach of these warranties 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 warranties, which is curable and which cure is consistent with professional conservation standard (including, for example, cure by means of repair or re-fabrication of the Work). 3.The Artist shall not be responsible for any damage inflicted on the Work by third parties or outside forces, whether man-made or from natural causes, which exceed those that the design of the Work should reasonably tolerate. 4.After final acceptance of the Work by the City, the City shall hold the Artist harmless from any and all liability or personal injury to the public, except to the extent covered by the warranties of Article IV, Section B.1. Exhibit C - Popsicles 6 ARTICLE V. OWNERSHIP OF WORK AND COPYRIGHT A. GENERAL The Artist retains Copyright in and to the work under the Copyright Act of 1976, 17 U.S.C., Section 101, et seq. The Artist reserves the right to produce similar Works at any size. The City shall first notify the Artist consistent with Section D herein as to identified location of the Work. If the Artist objects to the location, the only remedy available to the Artist is to request in writing that the City remove the identification plaque referred to in Article I, Section D, subsection 3 herein, and that the City not promote the Work as that of the Artist. Provided however, this provision in no way prohibits the City from truthfully responding to inquiries, oral and written, as to the name of the Artist. The Artist shall not unreasonably object to a change of location or alteration of the site. In the event of such a move, the City will preserve the Work as delivered by the Artist, allowing changes to the base as required by the new site, but no changes to the Work itself. The City agrees to consult with Artist in the event of such a move. B. IDENTITY OF ARTIST The Artist grants to the City and its assigns an irrevocable license to make two-dimensional reproductions of the Work for non-commercial purposes, including but not limited to reproductions used in advertising, brochures, media publicity, and catalogues or other publications, provided that these rights are exercised in a tasteful and professional manner. All two-dimensional reproductions of the Work by the City shall contain a credit to the Artist substantially in the following form: Popsicles By Craig Gray (2016) C. NOTICES All notices required herein shall be in writing and served upon the parties as follows: Craig Gray 102B Peary Court Key West, FL 33040 305-432-6856 City Clerk City of South San Francisco 400 Grand Avenue South San Francisco, CA 94083 (650) 829-3800 Exhibit C - Popsicles 7 All notices required herein shall be deemed served when mailed by First Class Mail, Certified Mail, postage prepaid, to each party’s last known mailing address. It is the responsibility of each party to inform the other of a change in address. If notice cannot be served due to a change in address, which has not been served upon the other party, such party’s failure to notify shall be deemed a waiver of notice. ARTICLE VI. SUBSEQUENT EVENTS A.MAINTENANCE The City and the Artist recognize that maintenance of the Work on a regular basis is essential to the integrity of the Work. Therefore, the City shall assure regular maintenance according to the instructions supplied by the Artist as set forth herein under Article I, Section C.2 and may take action reasonably designed to protect the Work against vandalism. B.REPAIRS AND RESTORATION After final acceptance of the Work, the Artist may inspect the Work at his own expense and shall notify the City in writing as to the necessity of any repairs. The City may in its discretion consult with the Artist and make the noted repairs. All such consultations shall be without additional cost to the City. Beyond reasonable consultation to determine a course of corrective action, any action taken by the Artist at the request of the City will be subject to a cost to be decided in a new agreement between the parties. C.FUTURE MODIFICATION OR RELOCATION 1.City has the right to remove the Artwork from the Site at any time. In addition, in the event that any element of the Artwork constitutes a public safety hazard, City has the right to remove the element posing the public safety hazard. 2.Except to the extent permitted by subsection 1 above, City agrees not to intentionally modify the Artwork without first obtaining Artist’s written consent. 3.City shall have the right to dispose of the Work, in any manner that the City deems appropriate, at any time. Before exercising this right, City, by written notice to Artist at Artist’s last known address, agrees to give Artist the opportunity to purchase the Artwork for the greater of the Total Price or the amount of any offer which 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 Artist. Artist shall have thirty (30) days from the date of City’s notice to exercise the option to purchase the Artwork. 4.Without limitation of City’s rights under this Agreement, it is City’s practice to notify and consult with the Artist before intentionally moving, relocating or removing artwork. If, after the initial discussion, Artist and City do not reach a mutually agreeable decision regarding relocation or modification of an Artwork, or do not Exhibit C - Popsicles 8 agree upon compensation to Artist for providing Artist’s input on proposed relocation or modification, City may take such actions as City deems necessary in management of its Artwork, and no further agreement or compensation is due to Artist. Notwithstanding the foregoing, whether or not City notified or consulted with Artist, if City removes, relocates, or modifies the Artwork without Artist’s prior written consent, City shall not be liable to Artist for damages. Under such circumstances, if Artist objects to the modification or new location, then (i) City may restore the Artwork or replace the Artwork to its original location, or (ii) if the City does not restore the Artwork or to relocate the Artwork to the original location, Artist may request that Artist’s association with Artwork be severed. In either event, City shall have no further obligation or liability to Artist. 5. If City moves the Artwork from its originally installed location without Artist’s oversight, Artist shall not be held responsible for the structural integrity or safety of the Artwork to the extent that City’s action impaired the structural integrity or safety of the Artwork, nor shall Artist be held responsible for code compliance of the Artwork to the extent that City’s action rendered the Artwork non-compliant with applicable codes. 6. Artist’s rights under this Agreement cease with Artist’s death and do not extend to Artist’s heirs, successors or assigns. D. WAIVER OF RIGHTS The Artist understands and agrees that the provisions of this Article VI shall control over the provisions of 17 U.S.C. – 106A (a), known as the Visual Artist Rights Act of 1990 (“VARA”), and other laws granting the Artist any “moral rights” or similar rights as to the Work, and shall constitute a waiver by the Artist of any rights with the exception of copyright, in the Work set out in or otherwise granted by 17 U.S.C. – 106A (a) or in such other laws. ARTICLE VII. INDEPENDENT CONTRACTOR The Artist performs this contract as an independent contractor and not as an agent of an employee of the City. The Artist shall maintain control; furnish all supervision, labor, materials, equipment, supplies, other incidentals, as well as transportation, shipping and installation of the Work. ARTICLE VIII. ASSIGNMENT The work and services required of the Artist under this Contract are personal and shall not be assigned, sublet or transferred. However, the Artist shall be allowed to employ qualified personnel who shall work under the Artist’s supervision. Exhibit C - Popsicles 9 ARTICLE IX. INDEMNIFICATION The Artist shall defend, release, indemnify and save and hold harmless the City against any and all damages to property or injuries to or death of any person or persons, and shall defend, release, indemnify and hold harmless the City from any and all claims, demands, suits, liabilities, actions, causes of actions, or legal or equitable proceedings of any kind or nature, including reasonable attorney’s fees incurred by legal counsel of the City’s choice, or by anyone whomsoever, in any way resulting from or arising out of the Artist’s activities in connection with this Contract, including acts of omissions of the Artist or persons acting under the Artist’s control. The City shall defend, release, indemnify and save and hold harmless the Artist against any and all damages to property or injuries to or death of any person or persons, and shall defend, release, indemnify and hold harmless the Artist from any and all claims, demands, suits, liabilities, actions, causes of actions, or legal or equitable proceedings of any kind or nature, including reasonable attorney’s fees incurred by legal counsel of the Artist's choice, or by anyone whomsoever, in any way resulting from or arising out of the City's activities in connection with this Contract, including acts of omissions of the City or persons acting under the City's control. ARTICLE X. TERMINATION & MEDIATION A. TERMINATION 1. If either the Artist or the City 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 Contract, the other party shall thereupon have the right to terminate this Contract by giving written notice to the defaulting party of its intent to terminate and specifying the grounds for termination. The defaulting party shall have thirty days (30) after receipt of the notice to cure the default. If the default is not cured within such time period, this Contract shall terminate. 2. In the event of a default by the City, the City shall promptly compensate the Artist pursuant to Article II for all services performed by the Artist prior to termination, and all finished and unfinished drawings, sketches, photographs and other work products prepared and submitted or prepared for submission by the Artist under this Contract shall at the City’s option become its property, provided that no right to fabricate or execute the Work shall pass to the City. 3. In the event of a default by the Artist, shall forfeit the right to any and all remaining payments due under this contract for which Work has not been completed as well as any and all copyrights reserved herein and any and all limited edition rights as defined herein. B. MEDIATION If, during the creation of the Work, its installation and subsequent existence, any disputes should arise between the Artist and the City, the parties hereto will mediate their Exhibit C - Popsicles 10 disagreements and make every effort to affect a mutually satisfactory resolution of the disagreements including the appointment of an independent mediator reasonably acceptable to both parties. If unable to agree, a mediator shall be appointed by the court. Costs will be equally divided. ARTICLE XI. MODIFICATION No alteration, change or modification of the terms of this Contract shall be valid unless made in writing and signed by the parties hereto. ARTICLE XII. CONFLICT OF LAW Any provision of this Contract, which is hereafter found by a court of law or otherwise to be in conflict with the laws, rules, and/or regulations of the United States or the State of California shall be considered null and void. The valid provisions of this Contract shall be severed from the invalid provisions and remain in effect to the extent possible. The law of the State of California shall govern the interpretation of this contract. ARTICLE XIII. CHOICE OF LAW All conflicts, causes of actions and civil disputes shall be filed in the Superior Court. ARTICLE XIV. EFFECTIVE DATE The effective date of this Contract shall be the date of approval by all parties hereto. ARTICLE XV. COUNTERPARTS FOR SIGNATURE This contract may be executed in duplicate counterparts, each of which shall be deemed an original. Attest to: City of South San Francisco _____________________________ ______________________________ City Clerk City Mana ger (Corporate Seal) Attest to: _____________________________ Craig Gray Exhibit C - Popsicles Exhibit A Exhibit C - Popsicles Exhibit A Exhibit C - Popsicles Exhibit A Exhibit C - Popsicles Exhibit A Exhibit C - Popsicles Exhibit A Exhibit C - Popsicles Exhibit A Exhibit C - Popsicles Exhibit A Exhibit C - Popsicles Exhibit A Exhibit C - Popsicles Exhibit A Exhibit C - Popsicles