HomeMy WebLinkAbout18. Approve Agrmt btwn City of Downey & Brodin Studios, Inc. to Design & Fabricate Fire Memorial StatueAPPROVED BY
CITY MANAGER
T: HONORABLE MAY AND MEMBERS OF THE CITY COUNCIL
OFFICE
BY: MARK GILLASPIE, FIRE CHIEF
DATE: APRIL 23, 2019
SUBJECT: AGREEMENT BETWEEN THE CITY OF DOWNEY AND BRODIN
STUDIOS,• DESIGN AND FABRICATEi-
i
RECOMMENDATION
1: Approve an Agreement with Brodin Studios in the amount of $45,000.00 to design and
fabricate a Fire Memorial Statue Work of Public Art;
2. Authorize the Mayor to Execute the Agreement.
On August 28, 2017 the City Council established an Ad Hoc Subcommittee to oversee t e
development of a design scheme for a firefighter's memorial. The purpose of the memorial is to
recognize Downey's firefighters' contributions to the community and honor the sacrifices made
while protecting and serving the residents of Downey. The subcommittee is comprised of Mayor
Rodriguez t Councilman Ashton.
VariousCivic Center sites were evaluated • the south planter adjacent•. City Hall's main
entrance was selected. The designed fire memorial will be a bronze statue sculpture of one life-
size firefighter, _ • • protective gear, kneeling forward to pick up a. fallen fire helmet.
sculptureThe will be elevated on a pedestal,i the police memorial.design
intended for ii:' public • to compliment and mirror one i
Brodin Studios, Inc. is the selected artist forthe fire memorial, who also created the police
memorial.ireason, requisition will be utiliz- i The agreementonly
include the design and _ • is c. i. of _ firefighter status.does not• '. the development
of _ selected site or _ construction of pedestal.
APRIL 2019
PAGE 2
ATTACHMENTS
Attachment i: Brodin Studios Estimate #5769
AND BRODIN STUDIOS, INC.
TO DESIGN AND FABRICATE A WORK OF PUBLIC ART
This Agreement is made and entered into this 23rd day of April, 2019, by and between the CITY
DOWNEY ("Citya municipal corporation and charter city located at 11111 Brookshire Avenue,
Downey, California, 90241, and Brodin Studios, Inc. ("Artist") a Minnesota business corporation,
located at 70127 330th Street, Kimball, MN 55351 1
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11111 Brookshire Avenue in Downey, California (the "Site").
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C. The source of funds for the Artwork derives from the City's Art in Public Places Program.
D. Artist was selected by the City Council Subcommittee following a review and
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other casualty, flood, landslide, epidemic, unforeseeable adverse weather, "acts of God," war, civil
disturbance, court ordered injunction, intervention by civil or military authorities or government, strikes,
lockouts, boycotts, or other labor disputes, to the extent any of the foregoing are beyond the
reasonable control of either City or Artist and which cause such party to be delayed or hindered in or
Attachment "A"
prevented from the performance of any covenant or obligation under this Agreement other than the
payment of money.
B. If either Artist or City is delayed or prevented from the performance of any act required by
this Agreement by reason of acts of Force Majeure, performance of such act shall be excused for the
period of the delay, and the period for the performance of any such act shall be extended for a period
equivalent to the period of such delay.
,SECTION 3. COMPENSATION AND METHOD OF PAYMENT.
3.0. COMPENSATION The maximum compensation to be paid to Artist ("Total Pnce�') is set
forth in the attached EXHIBIT C, entitled "COMPENSATION." The rate, schedule and method of
payment also are set out in EXHIBIT C. Such payment shall constitute full and complete
compensation for work performed and services rendered, including, but not limited to, professional
services and reimbursable expenses, for all supervision, labor, supplies, materials, equipment or use
thereof, taxes, and for all other necessary incidentals.
3. 1. COST OVERRUN. In the event Artist incurs costs in excess of the maximum
compensation set forth in EXHIBIT C, and said cost overrun is not a result of a modification made by
the City to the Artist's Services set forth herein or the related construction documents, Artist shall pay
such excess from Artist's own funds. City shall not be required to pay any part of such excess and
Artist shall not have any claim against City on account of any cost overruns.
3.2. MODIFICATION. If, after City issues the Notice to Proceed to Artist to proceed with
fabrication of the Artwork as set forth in EXHIBIT A, City approves any modification of the Artist's
Services (as defined in EXHIBIT A)which results in cost savings such as, but not limited to, the
deletion of an element of the Artwork, the substitution of lesser quality, quantity and/or cost material
with no offsetting upgrade of other materials, or the reduction in the Artwork's size, the cost savings
attributable to the modification will not be paid to the Artist.
3.3. CITY'S RIGHT TO WITHHOLD PAYMENT. In the event that City determines that work
which it has been invoiced does not meet the terms of this Agreement, City may withhold payment to
Artist. In the event City withholds any payment, City shall provide detailed written notice to Artist within
fifteen (15) days of receipt of Artist's invoice, specifying the failure of performance for which City
intends to withhold payment. Within fifteen (15) days of Artist's receipt of City's notice, Artist shall cure
City's objection or if City's objections are not capable of cure within fifteen (15) days, Artist shall
commence to cure City's objections and then promptly proceed to complete the cure. If Artist disputes
City's determination that the Agreement's specifications have not been met, within fifteen (15) days of
Artist's receipt of City's notice, Artist shall notify City in writing. In such event, City shall make
reasonable efforts to resolve the dispute with Artist. . Any payments not in dispute shall be promptly
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rendered shall constitute a waiver or release by City of any claims, rights or remedies City may have
against Artist under this Agreement or by law, nor shall such payment constitute a waiver, remission,
this Agreement.
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services described in EXHIBIT A including, but not limited to, the quality and timely completion of the
services without exceeding the total budget for the Artwork as set forth in EXHIBIT C. Artist shall,
without additional compensation, correct or revise any errors, omissions, or other deficiencies in
Artist's work.
5. 1. PERSONNEL, Artist has, or will secure at Artist's expense, all personnel required to
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5.2 tOORDIN"ON. Artist acknowledges that it is an essential element of the Artist's
Services to coordinate with City, as well Project Coordinator John Oskoui and Fire Chief Mark
Gillaspie with the development of the Artwork design and fabrication and City agrees that such
persons will be made reasonably available to Artist for coordination and communication. Artist agrees
to accept responsibility for the coordination with persons designated by City to be necessary to
complete Artist's Services. Artist also agrees to meet and communicate with other persons involved
with the Artwork as required by City to ensure proper coordination of the Artwork Design.
• 6. CITY'S ••
6.0. 1 84TE fNP��IW City shall be responsible for providing Artist, at no cost to Artist,
r• • existing designs, drawings, reports, and other relevant existing •- needed by Artist in
MIT
6.1. SUPERVISION. City is under no obligation to supervise the Artist's performance of
services which are described under this Agreement.
6.2. ARTWORK IDENTIFICATION. City will cause and install identification for the completed
Artwork, which will include the following information: Artist's name, year in which Artwork is
completed, Artwork title, sponsorship partners (if any) and such other information as determined by
City. Identification may be in the form of a plaque, brochure, audio identification, or other method that
is consistent with identification throughout the remainder of the City property.
relationship with City is strictly and solely that of an independent contractor, and not as an agent or an
employee of City; and as an independent contractor, Artist shall obtain no rights to retirement benefits
or other benefits which accrue to City's employees, and Artist hereby expressly waives any claim
Artist may have to any such rights. Artist further agrees to acknowledge and accept sole responsibility
for determining the method and means by which Artist will fulfill Artist's obligations under this
Agreement. Nothing contained in this Agreement shall be construed to place City and Artist in the
relationship of partners or joint venturers. Neither party shall not hold themselves out as an
authorized agent of the other party with power to bind the other party in any manner.
SECTION 8. ASSIGNABILITY.
Artist are material considerations for this Agreement. Except as may be specifically authorized under
this Agreement, Artist shall not assign or transfer any interest in this Agreement nor the performance
of any of Artist's obligations hereunder, and any attempt by Artist to so assign this Agreement or any
rights, duties or obligations arising hereunder shall be void and of no effect unless prior written
consent is given by City. However, nothing in this section shall be deemed to prevent Artist, at Artist's
sole expense, from relying on or utilizing the services of such other Artist or contractor as Artist may
require to complete the Artist's Services.
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,SECTION 9. INDEMNIFICATION BY ARTIST.
9.0. agrees to protect, defend, indemnify and hold harmless City
and its officers, agents and employees, from and against all claims, costs and damages (collectively,
"Liabilities") arising out of negligent or willful acts or omissions in the performance of this Agreement
bo Artist or the Artist's a�ents or Artist's subcontractors. Artist's oblbtations to indemnifuv and hold Cit
harmless under this subsection exclude only those Liabilities, which are due to the gross negligence
or willful misconduct of City its officers, agents and employees.
9.1. INFRINGEMENT. Artist also agrees to protect, defend, indemnify and hold City, its
officers, agents and employees harmless from any action, claim, suit or liability based on a claim that
work performed under this Agreement by Artist, or Artist's agents or Artist's subcontractors constitutes
an infringement of any patent, copyright, trademark, trade name or other proprietary right of any party.
This section shall survive expiration or sooner termination under this Agreement.
or any renewal thereof, agrees to maintain the policies set forth in the attached EXHIBIT D, entitled
"INSURANCE REQUIREMENTS." All policies, endorsements, certificates and/or binders shall be
subject to the approval by the Risk Manager of the City as to form and content. These requirements
are subject to amendments or waiver if so approved in writing by the Risk Manager. Artist agrees to
provide City copies of said policies, certificates and/or endorsements before work commences under
this Agreement.
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,SECTION 12. TERMINATION.
12.0. TERMINATION WITHOUT CAUSE. City may terminate this Agreement without cause
upon thirty (30) days written notice to Artist. Termination shall be effective thirty (30) days after Artist's
receipt of City's termination notice.
TERMINATION WITH CAUSE, If Artist fails to perform any of Artist's material obligations
under this Agreement, City may terminate this Agreement upon fifteen (15) days written notice to
Artist ("Termination Notice"). The Termination Notice must specify Artist's breach and provide Artist
with an opportunity to cure the specified breach within the fifteen (15) day notice period. In the event
that Artist fails to cure the specified breach within the fifteen (15) day notice period, the termination of
this Agreement will be effective. In instances where the specified breach is incapable of being cured
within fifteen (15) days, Artist shall commence to cure the specified breach within the fifteen (15) day
notice period and diligently execute the work necessary to complete the cure.
12.2 COMPENSATION. In the event that City terminates this Agreement, City shall pay Artist
for services performed and contractual commitments made by Artist, and previously approved by City,
with vendors and subcontractors pursuant to this Agreement that cannot be canceled, in a manner
consistent with this Agreement and in a manner reasonably satisfactory to City to date of termination,
consistent with the schedule of payment set forth in EXHIBIT C.
12.3 REMEDIES. City's remedies under this Agreement are cumulative and are in addition to
City's rights available at law or in equity.
12.4 WAIVER. The parties agree that waiver of any breach or violation of any term or condition
of this Agreement shall not be deemed to be a waiver of any other term or condition contained herein
or a waiver of any subsequent breach or violation of the same or any other term or condition.
SECTION 13. COMPLIANCE WITH LAWS.
13.0. COMPLIANCE. Artist shall comply with all applicable laws, ordinances, codes and
regulations of the federal, state and local governments.
SECTION 14. NONDISCRIMINATION.
14.0. NONDISCRIMINATION.Artist shall not discriminate, in any way, against any person on
the basis of race, sex, color, age, religion, sexual orientation, actual or perceived gender identity,
disability, ethnicity, or national origin, in connection with or related to the performance of this
Agreement.
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15.0. Artist represents and warrants that:
A. Prior to transfer of title of the Artwork to the City, Artist is the sole and absolute owner of the
Artwork and the Artwork Design, and the copyrights pertaining to the Artwork, and all the rights
associated or relating to it.
B. Artist has not previously sold, assigned, licensed, granted, encumbered, or utilized the
Artwork Design or any element thereof, in any manner which may affect or impair the rights granted
pursuant to this Agreement including without limited to, inhibiting the City's ability to show the work as
defined in Section 16, or maintain/conserve the work into the future.
C. All Artwork created or performed by Artist under this Agreement, whether created by Artist
alone or in collaboration with others, shall be wholly original with Artist and shall not infringe upon or
violate the rights of any third party.
D. Artist has acquired all rights to any third party software or other component of the Artwork
necessary for the operation of Artwork.
E. Artist has the full power to enter into and perform this Agreement and to make the grant of
rights contained in this Agreement.
F. All services performed hereunder shall be performed in accordance with EXHIBIT A with all
necessary care, skill, and diligence.
G. Artist warrants that the Artwork is the result of the artistic efforts of Artist and that it will be
delivered full and clear of any liens, claims and encumbrances of any type.
H. These representations and warranties shall survive the termination or other extinction of
this Agreement.
15.1 Artist warrants that the design of the Artwork is an edition of one, and that neither Artist
nor Artist's agent will execute or authorize another to execute another work of the same image, design
and dimensions as the Artwork. Nothing however, shall prevent Artist from making future works in his
or her style and manner of expression. This warranty shall continue in effect for the duration of the
Artwork's copyright protected status and shall be binding on Artist and Artist's heirs and assigns.
In the case where Artist is comprised of two or more individual persons or a group of people,
the measuring life shall be the life of the last surviving individual person comprising Artist team.
Recognizing that City has no adequate remedy at law for Artist's violation of this warranty, Artist
agrees that, in the event Artist breaches this warranty, City shall be entitled to enjoin Artist's breach.
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SECTION 16. INTELLECTUAL PROPERTY RIGHTS AND LICENSE, REPRODUCTION AND
PUBLICITY RIGHTS,
16.0 COPYRIGHT:
A. Except as provided in this Agreement, Artist shall retain all copyrights in the Artwork. Artist's
copyright shall not extend to predominantly functional aspects of the building or Site that may be
incorporated into Artwork or which are in the area of the Artwork, such as the flooring, walls and other
fixtures and features of the Site, furnishings, or other similar objects located at the Site. If Artist is
comprised of two or more individual persons, the individual persons shall be deemed joint authors of
the Artwork.
B. Based on mutual agreement between Artist and City, Artist may place a copyright notice on
the Artwork in the form and manner required to protect copyrights in the Artwork under United States
copyright law. If the copyright is registered with the U.S. Copyright Office, Artist shall provide City with
a copy of the application for registration, the registration number and the effective date of registration.
16.1 DISPLAY/DISPOSAL.
Artist grants City the following exclusive rights:
A. City shall have the right to display the Artwork and to loan the Artwork to others for the
purpose of public display.
B. City shall have the right to move, remove, relocate or dispose of the Artwork as specified
below in Section 20.
SECTION 17. VARIABLE MEDIA ARTWORK GUIDELINES AND ADDITIONAL
WARRANTIES
17.0 APPLICABILITY. The provisions of this Section 17 apply if the Artwork involves or
incorporates electronic, digital, video, mechanical, living, variable, moving or other dynamic
components ("Variable Media Component") and shall be in addition to and without limitation of, any
warranties, rights otherwise provided to City by Artist herein.
17.1 VARIABLE MEDIA GUIDELINES. Artist shall also provide the City with written
recommendations for translating the Artwork into new media or replacing elements of the Artwork in
the event that the original medium, components and/or the Artists' installation plan become obsolete
during the life of the Artwork ("Variable Media Guidelines"). Although the City is not required to comply
with such Variable Media Guidelines, the City may take such Guidelines into account when
maintaining the Artwork or trying to preserve the integrity of the Artwork.
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17.2 WARRANTY AGAINST INFRINGEMENT. Artist warrants that the Artwork, including
without limitation, any software included to operate or display the Artwork, does not violate or infringe
upon any patent, copyright, trade secret, or other proprietary rights of any other person or entity. Artist
agrees to hold the City harmless from any liability and to defend and indemnify the City, at Artist's sole
expense, in the event that a claim is filed or a suit is brought against City or any of its officers,
employees, or authorized agents, for the use or display of the Artwork due to a patent or copyright
infringement. Artist further agrees that if the Artwork or any component thereof is found to be
infringing while on display. Artist shall promptly:
A. Modify the Artwork, at Artist's expense, so that it becomes non -infringing, or
B. Replace the infringing element of the Artwork including without limitation software, with
equal non -infringing items, at Artist's expense, or
C. Procure, at Artist's expense, the necessary licenses for the City to continue using and
displaying the Artwork.
17.3 'WARRANTY OF ACCEPTABLE STANDARD OF DISPLAY AND OPERATION FOR
VARIABLE MEDIA COMPONENTS.
Artist represents and warrants that during the warranty period set forth in Section 21, the Artwork will
conform with the design specifications approved by City and, where Artwork involves Variable Media
Components, the Artwork will also operate, function or perform in accordance with Artist's
representations to the City without any costs beyond the final Budget for the Artwork or any additional
staff assistance beyond what has specifically been agreed to by City in the approved specifications,
and including reasonable costs for electrical power for the Artwork.
17.4 THIRD PARTY WARRANTIES AND LICENSES. Artist shall procure, on City's behalf, all
licenses and maintenance agreements from third party software developers or providers used in the
Artwork and referred to as "Third Party Software" and required to operate or display the Artwork, in a
form transferable to City and acceptable to City. Artist shall transfer the license and maintenance
agreements for the Third Party Software to City upon City's acceptance of the Artwork.
Artist shall obtain from all suppliers of the equipment and the Third Party Software used to design,
and fabricate the Artwork, all standard guarantees and warranties normally provided on all machinery,-
equipment,
achinery,equipment, services, materials, supplies and other items used in connection with the Artwork,
including all such machinery, equipment, materials and other items which are incorporated into the
Artwork. Artist shall obtain from each such supplier guarantees and warranties which are assignable
to City and shall, upon request of City, obtain an option for City to purchase a guarantee or warranty
from such suppliers covering a longer period than a one year warranty period if commercially
available at City's expense. Artist shall enforce all guarantees and warranties until such time as such
guarantees or warranties expire or are, if applicable, transferred to City as contemplated by this
Section. Such guarantees and warranties shall, to the extent they have been made assignable, be
transferred to City upon acceptance of the Artwork. Artist shall deliver to City copies of all such
guarantees and warranties and relevant extracts from all related technical specifications. Nothing in
this Section shall reduce the obligation of Artist to provide the City with the guarantees and warranties
described in this Agreement, and to comply with the provisions of this Agreement.
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account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating
to charges for services, or expenditures and disbursements charged to City for a minimum period of
three (3) years, or for any longer period required by law, from the date of final payment to Artist
pursuant to this Agreement. Artist shall maintain all documents and records which demonstrate
performance under this Agreement for a minimum period of three (3) years, or for any longer period
required by law, from the date of termination or completion of this Agreement.
shall be made available for inspection or audit, at any time during regular business hours, upon
written request by the City Finance Director, City Manager, or a designated representative of any of
these officers. Copies of such documents shall be provided to City for inspection at City Hall when it is
practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be
available at Artist's address indicated for receipt of notices in this Agreement.
17 F1IfflI!jIII!I!II�jwIj1II !111 ",1
documents may be lost Or discarded due to dissolution, disbandment or termination of Artist's
business, City may, by written request by any of the above-named officers, require that custody of the
records be given to City and that the records and documents be maintained in City Hall. Access to
such records and documents shall be granted to any party authorized by Artist's, Artist's
representatives, or Artist's successors -i n -i nte rest.
A. Without limitation of any other provision hereof, Artist expressly agrees to waive any and all
rights Artist may have pursuant to title 17 U.S.C. Section 106A, (commonly known as the "Visual
Artists Rights Act of 1990") as Artist's rights under Act apply, if at all, to the following uses of Artwork:
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(i). City shall have the right to reproduce images of the Artwork in or on any medium,
but no statutory reproductions are permitted without the written consent of the Artist.
(ii). City shall have the right to move, relocate or remove Artwork from the intended
(iii). City shall have the right to loan the Artwork as City deems appropriate as further
B. To the extent necessary for City to exercise its rights and any license conveyed under the
terms of this Agreement, Artist expressly waives any rights Artist is afforded under California Civil
20.0. COMMITMENT BY CITY. City agrees that unless Artist requests to the contrary in
writing, all references to the Artwork and all reproductions of the Artwork will credit the Artwork to
Artist.
20.1. ARTIST'S COMMITMENT, Artist agrees that all formal references to the Artwork made
or authorized to be made by Artist shall include the following credit: "Collection of the City of Downey
20.2. FUTURE MODIFICATION OR RELOCATION.
A. 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
B. Except to the extent permitted by subsection A above, City agrees not to intentionally
modify the Artwork without first obtaining Artist's written consent.
C. City shall have the right to donate or sell the Artwork 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.
D. 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
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code compliance of the Artwork to the extent that City's action rendered the Artwork non-compliant
with applicable codes.
E. Artist's rights under this Agreement cease with Artist's dissolution and do not extend to
Artist's heirs, successors or assigns.
SECTION 21. DEFECTS IN MATERIAL, WORKMANSHIP AND INHERENT VICE.
21.0. Artist warrants that the Artwork and workmanship will be free of defects in workmanship,
including Inherent Vice, and that the Artist will, at the Artist's own expense, remedy any defects due to
faulty workmanship, or Inherent Vice, which appear within a period of three years from the date the
Artwork is formally accepted. If the Artwork should deteriorate because of Inherent Vice within three
years from the date the Artwork is formally accepted, Artist will repair or replace the Artwork without
charge for Artist's services in supervising the work of others or for repairing the work that they
originally performed on the Artwork and Artist will pay for the cost of labor rendered by persons other
than the Artist, materials and supplies. The term "Inherent Vice" means any quality within the material
or materials incorporated into the Artwork which, either alone or in combination, results in the
deterioration of the Artwork. Inherent Vice does not include any potential for deterioration that is
specifically identified in the Final Proposal, nor any known aging of the materials used, i.e. the
development of a patina or the discoloration of certain materials as exhibited on statutory over time.
21.1. N0 -THREAT. Artist further warrants that the Artwork shall not constitute any threat to the
safety of persons or property when used in the manner for which it is designed. Artist agrees to
cooperate with City in making or permitting adjustments to the Artwork if necessary to eliminate
hazards which become apparent after the Artwork is accepted by City.
21.2. SURVIVAL. These representations and warranties shall survive the termination or other
extinction of this Agreement.
SECTION 22. MAINTENANCE
22.0. REPAIRS AND RESTORATION. City shall have the right to determine, after consultation
with a professional conservator, when and if repairs and restorations to the Artwork will be made. It is
the policy of City to consult with Artist regarding repairs and restoration which are undertaken during
Artist's lifetime when that is practicable. In the event that City makes repairs or restoration not
approved by Artist, Artist shall have the right, at Artist's sole option, to have Artist's association with
Artwork severed.
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22.1. STANDARDS OF REPAIR AND RESTORATION. All repairs and restorations, whether
performed by Artist, City, or by third parties responsible to Artist or City, shall be made in accordance
with professionally recognized principles of conservation of artworks and in accordance with the
maintenance instructions provided to City by Artist pursuant to EXHIBIT A.
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23.0. Artist shall avoid all conflict of interest or appearance of conflict of interest in
performance of this Agreement.
24.0. Artist agrees not to offer any City officer, official, employee any gift prohibited by the
City's conflict of interest code and State law. The offer or giving of any gift shall constitute a material
breach of this Agreement by Artist. In addition to any other remedies City may have in law or equity,
City may terminate this Agreement for such breach as provided in Section 12 of this Agreement.
25.0. Artist agrees that waiver by City of any breach or violation of any term or condition of this
Agreement shall not be deemed to be a waiver of any other term or condition contained herein or a
waiver of any subsequent breach or violation of the same or any other term or condition. The
acceptance by City of the performance of any work or services by Artist shall not be deemed to be a
waiver of any term or condition of this Agreement.
27.0. Submittals, requests, notices and reports (collectively "Notices") required under this
Agreement shall be delivered personally or through the mail, postage prepaid, to the addresses stated
below, or to any other address as may be noticed by a party. Notices may also be sent by facsimile to
the facsimile numbers set forth below.
13
da
City of Downey
11111 Brookshire Avenu-
D• -
DowneyCalifornia 90241
Phone: (562) 904-7286
Fax: (562) 923-6388
Aftn: City Manager
City of Downey
City Attorney's Office
11111 Brookshire Avenue
Downey, California 90241
Notices will be deemed effective on the date personally delivered, emailed or sent by courier service.
Notices which are mailed will be deemed effective three (3) days after deposit in the mail.
27.1 Artist agrees for the duration of Artist's life to provide City with Artist's current mailing address
and facsimile number in the event Artist's address or facsimile number, as specified above, should
change. If Artist fails to provide City with timely updates on changes to Artist's contact information,
Artist shall be considered to have waived Artist's right to notice under this Agreement.
28.0. VENUE. In the event that suit shall be brought by either party to this contract, the parties
agree that venue shall be exclusively vested in the state court of the County of Santa Clara or if
federal jurisdiction is appropriate, exclusively in a United States District Court for the Northern District
of California, San Jose, California.
28.1. 'GOVERNING LAW. The laws of the State of California shall govern this Agreement.
Except to the extent that federal law is applicable, this Agreement must be construed - and its
performance enforced - under California law.
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29.0 The captions of the sections or paragraphs of this Agreement are for convenience only.
entire understanding of the parties as to those matters contained herein. No prior oral or written
understanding shall be of any force or effect with respect to those matters covered hereunder. This
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to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this
Agreement, or the application thereof to any person or circumstance, shall remain in full force and
effect and shall in no way be affected, impaired or invalidated thereby.
religion and furthermore that the work • services funded • this Agreement must not •, used to
convey a religious message. Any portion of the compensation used in contradiction to the provisions
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WITNESS THE EXECUTION HEREOF on the day and year first herein above written.
CITY OF DOWNEY,
7, California municipal corporation
and charter city
By
Rick Rodriguez, Mayor
- %T
MA"VY1 =-1
lusiness Corporation
By:
Nick Christensen, CEO
Maria Alicia I'll D I uarte, CIVIC, City Clerk §ecretary
Ve M- i ZM kvi W -11'"I - . 11 6 0 a ,
903MMEMM
I r.
CITY OF f
California •al cor_noration
• charter city
1 By-
Rick
Rodriguez, i
• ♦ ♦ • E
Business i • • •'
Attest Attest:
Maria Alicia Duarte, CIVIC, City Clerk Secretary
Approved as to Form:
*111.igM is arci , CityAttorney
Legal Counsel
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EXHIBIT A
ARTIST' SERVICES
Artist shall perform the following services to the satisfaction of City and within the deadline set
forth in EXHIBIT B.
A. Brodin Studios will construct a life-size custom Firefighter statue to the specification of
the Downey FD and the images and information they provide for the design. The art
work will consist of a single firefighter dressed in full firefighting protective gear, including
SCBA bottle and mask, holding a fire axe with his right hand. Firefighter will be kneeling
forward, picking up a fallen fire helmet with his left hand.
Artwork shall be created using the "lost wax" method of bronze casting. The statues WN
be created from Everdur Silicon bronze, suitable for exterior display.
C. The statue will come completed and ready for installation with stainless steel threade
anchors for attaching to the customer's provided base.
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EXHIBIT B
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A. Step One will be the digital modeling of the sculpture from the customer's images and
specifications and approval of model from customer.
In
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1. Fee. Artist's fee for Artwork Design and Fabrication, including all expenses relating thereto,
shall not exceed the sum of Forty -Five Thousand Dollars and 00/100 ($45,000.00). This fee
includes but is not limited to the following costs: labor of assistants; materials, programming,
communication and other indirect costs; travel expenses of the Artist for site visits and research.
An additional amount of Four Thousand Five Hundred Dollars and 00/100($4,500.00) shall held
as a contingency to cover unforeseen costs/delivery that may be incurred during the course of
producing the Artwork, which shall be retained by the City and shall not be paid to the Artist
except where unforeseeable and unavoidable circumstances cause an increase in the costs
incurred by Artist in the Design , Fabrication and/or delivery of the Artwork.
Artist shall notify City as to the scheduled date of delivery. Shipping/Installation charges will be
billed separately after delivery and shall be due and payable within 15 days of receipt of invoice,
City shall be responsible for reasonable delivery/shipping and handling costs.
2. Interim Payments. City agrees to pay Artist in accordance with the terms of Section 3 of this
Agreement.
3. Payment Schedule'
At the Time of Delivery to City: $45,000.00
4. Fabrication, Payment Schedule for Artwork. City shall pay Artist for the costs and
expenses identified in the Artwork Budget as developed in accordance with EXHIBIT A. Artist
shall receive payment in full at the time of delivery to City.
5. Relmbursables: City will not make any additional payment for Artist's expenses.
6. In the event that the City determines that work for which it has received a request for payment
does not meet specifications required under this Agreement, City in its sole discretion shall have
the right to withhold such payment until such deficiency has been corrected. In such event, City
shall provide detailed written notice to Artist within ten (10) days of receipt of such request for
payment, specifying the failure of performance for which City intends to withhold payment. Artist
shall work to cure such failure of performance in order to meet the Agreement standards to the
satisfaction of City.
7. Notwithstanding the foregoing, Artist expressly acknowledges that approval of work to permit
an interim payment is solely for the benefit of Artist. Unless and until the City issues a Notice of
Acceptance for the Artwork, no interim approval shall constitute acceptance or approval of the
Artwork by City nor shall it be construed as a waiver of City's right to require that the Artwork
conform strictly to the Final Proposal and to the Plans.
8. Pursuant to California Revenue and Taxation Code Section 6365, the City's payment for the
Artwork is exempt from sales taxes imposed under the California Revenue and Taxation Code.
9. The parties agree that the Schedule for Payment set forth above may be modified only upon
prior written authorization of City's Assistant City Manager.
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1. I[mb fbf�hl!46ce. Artist shall not commence the Services or the Project
under this Agreement until it has provided evidence satisfactory to the City that it has
secured all insurance required under this section. In addition, Artist shall not allow any
subcontractor to commence work on any subcontract until it has provided evidence
satisfactory to the City that the subcontractor has secured all insurance required under
this section. The City reserves the right to modify these requirements, including limits,
based on the nature of the risk, prior experience with insurer, coverage or other special
circumstances.
11. MiftirriuM Requirements. Artist shall, at its expense procure and maintain
for the duration of the Agreement insurance against claims for inj�ries to persons or
damages to property which may arise from or in connection with the performance of the
Agreement, the Services or the Project by the Artist, its agents, representatives,
employees or subcontractors. Artist shall also require all of its subcontractors to
procure and maintain the same insurance for the duration of the Agreement. Such
insurance shall meet at least the following minimum levels of coverage:
(A) Minimum Scope of Insurance, (1) Commercial
General Liability (CGL)- Insurance Services Office Form CG 00 01 covering CGL on an
49 occurrence" basis including products and completed operations, property damage,
bodily injury and personal and advertising injury; (2) Automobile Liability: Insurance
Services Office Form Number CA 0001 covering Code 1 (any auto) or if Artist owns no
autos, Code 8 (hired) and 9 (non -owned); and (3) Workers' Compensation: Workers'
Compensation insurance as required by the State of California with Statutory Limits;
and (4) Employer's Liability Insurance.
(B) Minimum Limits of Insurance. Artist shall maintain
limits no less than: (1) Commercial General Liability (CGL): No less than $2,000,000
per occurrence for products and completed operations, bodily injury, property damage
and personal and advertising injury. If Commercial General Liability Insurance or other
form with general aggregate limit applies, either the general aggregate limit shall apply
separately to this Agreement/location (ISO CG 25 03 or 25 04) or the general
aggregate limit shall be twice the required occurrence limit, (2) Automobile Liability: No
less than $2,000,000 per accident for bodily injury and property damage; and (3)
Workers' Compensation: Workers' Compensation limits as required by the Labor Code
of the State of California with Statutory Limits; (4) Employer's Liability: Employer's
Liability limits of no less than $2,000,000 per accident for bodily injury or diseas-
• •
ployer's Liability coverage may be waived by the City if City receives written
verification that Artist has no employees.
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and/or the higher limits maintained by the Artist. Any available insurance proceeds il
excess of the specified minimum limits of insurance and coverage shall be available
the City.
(D) Profdssiongl b6bility �Errors & Omistibn�t Artist shall
procure and maintain, and require its sub -Artists to procure and maintain, for a period of
five (5) years following completion of the Services or the Project, errors and omissions
liability insurance appropriate to its profession. Such insurance shall be in an amount
not less than $2,000,000 per occurrence or claim and $2,000,000 in the aggregate, and
shall be endorsed to include contractual liability. If the Artist maintains broader coverage
and/or higher limits than the minimum, the City requires and shall be entitled to the
broader coverage and/or higher limits maintained by the Artist. Any available insurance
proceeds in excess of the specified minimum limits of insurance and coverage shall be
available to the City.
If an engineer or architect is required to complete the Artist's design documents, the Artist must
provide the City with a copy of the engineer's or architect's Professional Liability Errors and
Omissions insurance endorsement.
111. Insurance Endorsements. The insurance policies shall contain the
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following provisions, or Artist shall provide endorsements on forms approve y th
City to add the following provisions to the insurance policies: I
(A) Addonal Insured Status. The Commercial General
Liability policy shall be endorsed to state that: (1) the City, its directors, officials,
officers, employees, agents and volunteers shall be covered as additional insureds with
res:c fro rations .%erformed bgrA or
on behalf of the Artist, including materials, parts or equipment furnished in connection
with such work, Services. Project or operations; and (2) the insurance coverage shall be
primary insurance as respects the City, its directors, officials, officers, employees,
agents and volunteers, or if excess, shall stand in an unbroken chain of coverage
excess of the Artist's scheduled underlying coverage. Commercial General Liability
insurance coverage may be provided in the form of an endorsement to the Artist's
insurance (at lease as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26,
CG 20 33 or CG 20 38; and CG 20 37 forms if later revisions are used).
(B) VV6iver of SUbrii. bion- Artist hereby grants to City a
waiver of any right to subrogation which any insurer of said Artist may acquire against
the City by virtue of the payment of any loss under said insurance policies set forth
herein. Artist agrees to obtain any endorsement that may be necessary to affect this
waiver of subrogation, but this provision applies regardless of whether or not the City
has received a waiver of subrogation endorsement from the insurer.
(C) All Coverages. Each insurance policy required by this
Agreement shall be endorsed to state that: (A) coverage shall not be suspended,
voided, reduced or canceled except with written notice by certified mail, return receipt
requested to the City; and (B) any failure to comply with reporting or other provisions of
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the policies, including breaches of warranties, shall not affect coverage provided to the
City, its directors, officials, officers, employees, agents and volunteers.
IV. Priingry Cov For any claims related to this Agreement, the Artist's
insurance coverage shall be primary insurance and primary coverage at least as broad
as ISO CG 20 01 04 13 with respect to the City, its directors, officials, officers,
employees, agents and volunteers. Any insurance or self-insurance maintained by the
City, its directors, officials, officers, employees, agents and volunteers shall be excess
of the Artist's insurance and shall not be called upon to contribute with it in any way.
111111
Ira V 11 111i''i'm 111111111
VI. Deductibles and Self -Insurance Retentions. Any deductibles or self-insured
retentions must be declared to and approved by the City. City may require Artist to
provide proof of ability to pay losses and related investigations, claim administration and
defense expenses and costs within the retention. The policy language shall provide or
be endorsed to provide that the self-insured retention may be satisfied by either the
named insured or City.
VI 1. Agc placed with insurers ith
ppj�bifity of Insurers Insurance is to be wi
current A.M. Best's rating no less than A:VII, authorized to do business in California
and satisfactory to the City. I
Vill. y6d�gdn buCb��� Artist shall furnish City with original certificates
of insurance, including all required amendatory endorsements (or copies of the
applicable policy language effective coverage required by this provision) and a copy of
the Declarations and Endorsement Page of the Commercial General Liability policy
XI. Clajms�Mbdq Pblicies. If any of the policies provide coverage on a claims -
made basis:
(A) The retroactive date must be shown and must be before the date of
this Agreement or the date work commences under this Agreement, whichever is
(B) Insurance must be maintained and evidence of insurance must be
provided for at least five (5) years after completion of the Services provided under this
(C) If coverage is canceled, non -renewed, and not replaced with
another claims -made policy form with a retroactive date prior to the effective date of this
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Agreement • the date • commences •- this Agreement, whichever is earliest,
the Artist must purchase extended reporting coverage for a minimum of five (5) years
after completion of the Services under this Agreement.
X. Safet . Artist shall execute and maintain its work so as to avoid injury or
damage to any person • property. In carrying out its Services, the Artist shall at all
times be in compliance with all applicable local, state and federal laws, rules and
regulations, and shall exercise all necessary precautions for the safety of employees
appropriate to the nature • the work and the conditions under which the work is to be
performed. Safety precautions as applicable shall include, but shall not be limited to:
(A) adequate life protection and life-saving equipment and procedures; (B) instructions
in accident prevention for all employees and subcontractors, such as safe walkways,
scaffolds, fall protection ladders, bridges, gang planks, confined space procedures,
trenching and shoring, equipment and other safety devices, equipment and wearing
•• as are necessary • lawfully required to prevent accidents • injuries; and (C)
adequate facilities for the proper inspection and maintenance of all safety measures.
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