HomeMy WebLinkAbout09. Apprv PSA w-J.K. Designs, Inc. to Design, Fabricate & Install Public Art at Downey Theatre PlazaPROFESSIONAL SERVICES AGREEMENT WITH
J.K. DESIGNS FOR PUBLIC ART
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champion a community of artists and serve as a bridge between these artists and the public by
working with many cities throughout the country.
The • Sculptors'Guild Fellow, Jane DeDecker, sculpted •• pieces. "The Conductor"
•-• a confident music conductor boldly leading his musicians. "in the • 11" is completed ir
collaboration with artist Alyson Kinkade. Together, they designed the composition to include an
abstracted vibrantly painted tutu that complements Jane's expressionistic sculpting style of the
dancer who leans to tie her pointe shoe in preparation of the next performance.
The total project cost, which includes design, base design, fabrication and installation of the two
sculptures "The Conductor" and "in the Wings 11", is $70,000. The fabrication is expected to be
completed by January 15, 2021, with installation anticipated on or around January 25, 2021. A
more detailed timeline and list of artist services can be found as exhibits to the Professional
Service Agreement included as Attachment "B" to this report.
Economic Vibrancy
Quality of Life, Infrastructure & Parks
Public Engagement
FISCAL IMPACT
The funds for this public art project are currently budgeted in the City's Arts in Public Places
budget under account 40-1-6793-0520. An annual maintenance fee of $1,000 will be paid from
this account to cover cleaning and waxing of both sculptures.
ATTACHMENTS
Attachment A: Public Art Renderings
Attachment B: Professional Services Agreement with J.K. Designs, Inc. & National Sculptor's
Guild
Attachment "A"
Attachment LL
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This Agreement is made and entered into this. . day of October, 2020 , by and between the
CITY OF DOWNEY ("Cita municipal corporation and charter city located at 11111 Brookshire
Avenue, Downey, California, 90241, and J.K. Designs, Inc., a Colorado corporation doing business as
The National Sculptors' Guild ("Artist"), located at 2683 North Taft Avenue, Loveland, CO 80538.
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of the Artwork in consultation with the Artist.
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attached EXHIBIT A, entitled "ARTIST'S SERVICES," and referred to in this Agreement as "Artist's
Services."
I A A
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Attachment "B"
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A. For purposes of this Agreement, the term "Force Majeure" shall mean earthquake, fire, or
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
prevented from the performance of any covenant or obligation under this Agreement other than the
payment of money.
T. If either Artist or City is delayed or prevented from the performance of any act required by
peflucrmffem i-fff9-PZTM-Mr Tne performance Or any sucn act snan 6e extended tor a penot
equivalent to the period of such delay.
A. The maximum compensation to be paid to the Artist ("Total Price") is set forth in the
attached EXHIBIT C, entitled "COMPENSATION." The rate, schedule and method of payment also
are set out in EXH I BIT C. Such payment shall constitute full and complete compensation for work
performed and services rendered, including, but not limited to, professional services and reimbursaW.
expenses, for all supervision, labor, supplies, materials, equipment or use thereof, taxes, and for all
other necessary incidentals.
any other provision of this Agreement, Artist shall be responsible to pay or cause to be paid, prevailing
wages for all work under this Agreement, to the extent prevailing wage is applicable to the work to be
fabricated and/or installed on the Site. Artist shall defend, indemnify and hold the City, its elected
officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties
or interest arising out of any failure or alleged failure to comply with the prevailing wage laws. If
applicable, Artist shall be registered at with the Department of Industrial Relations under the Public
compensation set forth in EXHIBIT C, 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. CQ�J SAVINGS, 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 Artwork
Proposal or the Construction Documents (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 materials 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.
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which it has been invoiced does not meet the terms of this Agreement, City may withhold payment t
Artist. In the event City withholds any payment, City shall provide detailed written notice to Artist with
fifteen (15) days of receipt of Artist's invoice, specifying the failure of performance for which City
intends to withhold payment. Within fifteen (115) days of Artist's receipt of City's notice, Artist shall cu
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 dispute-
City's determination that the Agreement's specifications have not been met, within fifteen (15) days 01
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 however, the final determination as to whether Artist has
complied with the terms of th,is Agreement will remain with City. Any payments not in dispute shall be
promptly paid to Artist.
3.4. NO WAIVER OVIRIGHTS. No payment to Artist for any work performed or services
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,
or discharge by City of anv� failure or fault of Artist to satisfacLQMYAo,�erform the work as re�#.uired-urO=
this Agreement.
SECTION 4.,CUANGE§ lq��QPIIE,
4. 0. A0=[Q —N No services for which additiona:
signed by an authorized officer of City.
SECTION RESPOOF THE ARTI T.
5.0. COMPUANcIE WTH BUDGET CONSTRAIN]LS A
�.�rtist shall be responsible for providing
services described in EXHIBIT A including, but not limited to, the quality and timely completion of thc.-
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.
Artist shall be responsible for developing the Artwork Design so that the Artwork can be constructed
and installed without exceeding the total fabrication and installation budget of up to SEVENTY
THOUSAND DOLLARS AND 00/100 ($70,000.00). Any unanticipated overages will be absorbed
by the Artist. City shall have no obligation to approve a Contingency Draw to make corrections for
which the Artist or Artist's subcontractors are responsible, nor to pay for any costs that Artist could
have reasonably avoided. Artist shall, without additional compensation, correct or revise any errors,
omissions, or other deficiencies in Artist's work.
perform Artist's Services. All persons retained by Artist shall possess the requisite licenses ant
permits necessary to perform the work.
5.2 G00RDIN6j[QNLArtist acknowledges that it is an essential element of the Artist's
Services to coordinate with City. 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
coordination of the Artwork Design.
Agreement, Artist shall provide City with Artist's Tax Identification Number and any proof of Artist's
Tax Identification Number as requested by City.
SEC]:ION C 'S RESf!qNSISILMES.
6.0. Sttl� fNFQRK4A7fl6N. City shall be responsible for providing Artist, at no cost to Artist,
copies of existing designs, drawings, reports, and other relevant existing data needed by Artist in
order to perform Artist's Services.
6.1. SUPERVISION. City is under no obligation to supervise the Artist's performance of
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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.
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. Artist acknowledges and agrees that Artist shall not hold him, her or itself out
as an authorized agent of City with power to bind in any manner.
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.
any and all of City's rights and obligations under this Agreement. This Agreement shall be binding
upon and shall inure to the benefit of the successors and assigns of City.
gggM,9. INDIEMNIFI��* iN EMARTISL.
9.0. 1NbEWXlFlt"bN. rtist agrees to protect, defend, indemnify and hold harmless City
and its officers, agents and employees, from and against all claims, costs and damages (collectively,
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"Liabilities") arising out of negligent or willful acts or omissions in the performance of this Agreement
by Artist, or the Artist's agents or Artist's subcontractors. Artist's obligations to indemnify and hold City
harmless under this subsection exclude only those Liabilities, which are due to sole negligence or
willful misconduct of City its officers, agents and employees.
9.1. INFRINGEMfiNI�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 yerformed under this Av
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.
LU,
or any renewal thereof, agrees to maintain the policies set forth in the attached EXHIBIT D, entitled
"INSURANCE REQUIREMENTS." All policies, endorsements, cercates 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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§EOION 2. 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.
under this Agreement, City may terminate this Agreement upon fifteen (15) days written notice to Arti
("Termination Notice"). The Termination Notice must specify Artist's breach and provide Artist with
opportunity to cure the specified breach within the fifteen (115) day notice period. In the event that Art i
fails • cure the specified breach within the fifteen (15) • • period, the termination of th
Agreement will be effective. In instances where the specified breach is incapable of being cured with
fifteen (15) days, Artist shall commence to cure the specified breach within the fifteen (15) day noti
period and diligently execute the work necessary to complete the cure.
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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.
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of this Agreement shall not be deemed to be a waiver of any other term or condition contained here
or a waiver of any subsequent breach or violation of the same or any other term or condition. i
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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:
the Artwork and the Artwork Design, and the copyrights pertaining to the Artwork, and all the rights
associated or relating to
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,
reproduce the Artwork 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.
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E. Artist has the full power to enter into and perform this Agreement and to make the grant of
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this Agreement.
substantially similar image, design, dimensions and materials 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.
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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.
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
incori,orated into Artwork or which are in the area of the Artwork such as th I. fl—u' I . Mityu
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.
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the Artwork in the form and manner required to protect copyrights in the Artwork under United StatJ
copyright law. Placement details including size, location and method of attachment to be determin
based on mutual agreement between the City and the Artist. 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 PISPLAY/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
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B. City shall have the right to move, remove, relocate or dispose of the Artwork as specified
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A. Innovations, City Innovations. "Innovations" includes processes, machine,
compositions of matter, improvements, inventions 1whether or not *,rotectable under y aten I 1 0
of authorship, information fixed in any tangible medium of expression (whether or no t protectable und
copyright laws), moral rights, mask works, trademarks, trade names, trade dress, trade secrets, kno
how ideas 11,whether or not Yrotectable under tr-. V"I - - 2V
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under patent, copyright, moral right, mask work, trademark, trade secret or other laws, and includ
without limitation all new or useful art, combinations, discoveries, formulae, manufacturing technique
technical developments, discoveries, artwork, software, and designs. "City Innovations, are Innovatio
that Artist, solely or jointly with others, conceives, reduces to practice, creates, derives, develops
makes within the scope of Artist's work for City under this Agreement.
B. Disdosure and Omgmhip of City Innovations. Artist agrees to make and maintain
adequate and current records of all City Innovations, which records shall be and remain the property of
Artist. Artist agrees to promptly disclose to City every City Innovation. Artist hereby does and will assign
to City or City's designee Artist's entire worldwide right, title and interest in and to all City Innovations
and all associated records and intellectual property rights.
C. Assistance. Artist agrees to execute upon City's request a signed transfer of City
Innovations to City in the form set forth in EXHIBIT E at the time this Agreement is executed by Artist
for each of the City Innovations, including, but not limited to, computer programs, notes, sketches,
drawings and reports. Artist agrees to assist City in any reasonable manner to obtain, perfect and
enforce, for City's benefit, City's rights, title and interest in any and all countries, in and to all patents,
copyrights, moral rights, mask works, trade secrets, and other property rights in each of the City
Innovations. Artist agrees to execute, when requested, for each of the City Innovations (including
derivative works, improvements, renewals, extensions, continuations, divisionals, continuations in part,
orcontinuinMatentanplicationsthereoD,O��--A�,enp*v&V,v—!;�R-k,-7ktIO-&----T---'�-' I;QAA�S2�41MW2t-1
to such City Innovation, (ii) documentation (including without limitation assignments) to permit City to
obtain, perfect and enforce City's right, title and interest in and to such City Innovation, and (iii) any
other lawful documents deemed necessary by City to carry out the purpose of this Agreement. If called
upon to render assistance under this paragraph, City will be entitled to a fair and reasonable fee in
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addition to reimbursement of authorized expenses incurred at the prior written request of City. In t
event that City is unable for any reason to secure Artist's signature to any document Artist is requir
to execute under this Paragraph ("Assistance"), Artist hereby irrevocably designates and .•.. Ci
and City's duly authorized officers and agents as Artist's agents and attorneys -in -fact to act for and
Artist's behalf and instead of Artist, to execute such document with the same legal force and effect
if executed • Artist. I
D. Public Records Requests. Any documents provided by Artist to City are public records and
City may authorize third parties to review and reproduce such documents pursuant to public records
laws and policies, including the California Public Records Act.
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of Artist's copyright and not responsible for protecting the intellectual property rights of Artist or its
contractors/subcontractors.
WARRANTIES
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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 -•, 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 comp
with such Variable Media Guidelines, the City may take such Guidelines into account when
maintaining the Artwork • trying to preserve the -• of the Artwork.
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. Arti,,
agrees to hold the City harmless from any liability and to defend and indemnify the City, at Artist's so
expense, in the event that a claim is filed or a suit is brought against City •:: 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:
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A. Modify the Artwork, at Artist's expense, so that it becomes non -infringing, (M
C. Procure, at Artist's expense, the necessary licenses for the City to continue using and
17.3 VMRRANTY OE 6CCEPTABLE ST&NNQDAfflR"DF DISPLAY AND OPERATION FOR
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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 additiona
staff assistance beyond what has specifically been agreed to by City in the approved specifications,
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
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,
fabricate and install the Artwork, all standard guarantees and warranties normally provided on all
machinery, 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
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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
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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 warrantie.
described in this Agreement, and to comply with the provisions of this Agreement.
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.
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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.
18.2. CUSTODY OF RECORDS. Where City has reason to believe that such records or
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 -in -interest.
SECTION 19. ARTIST'S ANVERS.
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:
(i). City shall have the right to reproduce Artwork as provided in this Agreement.
(ii). City shall have the right to move, relocate or remove Artwork from the intended
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writing, all references to the Artwork and all reproductions of the Artwork will credit the Artwork to
Artist.
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or authorized to be made by Artist shall include the following credit: "Collection of the City of Downey
Public Art Program," or other language agreed to by all parties.
20.2. FUTURE MODIFICKTION 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
element posing the public safety hazard.
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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-u-c of the Site and d
the date of City's notice to exercise the option to purchase the Artwork.
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.
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including Inherent Vice, and that the Artist will, at the Artist's own expense, remedy any defects due ti
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
ix
charge for Artist's services in supervising the work of others or for repairing the work that they
ori�i-jaaUX#,,erformed on the Artwork and Artist will � �*; �M t �*s �-�kra
than the Artist, materials and supplies. The term "Inherent Vice" means any quality within the materia'
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.
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. aMIVAL. These representations and warranties shall survive the termination or other
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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.
22.1. STANDARDS OE REPAIR AND REMR6:00N. 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
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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.
SECTION 25. WAIVER.
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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 2
waiver of any term or condition of this Agreement.
SECTION 26.- SPECIAL PROVISIONS. 26.0. Special provisions, if any, to this Agreement arz
specified in the attached EXHIBIT E, entitled, "SPECIAL PROVISIONS."
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27.0. Submittals, requests, notices and reports (collectively "Notices") required under this
Agreement shall be delivered personaliv or throuah the mail. Dostaae Drer)aid. to t�e addresses stated
'Oelo,j:r, or to an, otices may a so e sen by facsimile to
the facsimile numbers set forth below.
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Alyson Kinkade
2683 North Taft Avenue
Loveland, CO 80538
970-290-0425.
City of Downey
ON WM 1-41 MU-01, W.- w-
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.
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address and facsimile number in the event Artist's address or facsimile number, as specified above,
ghould 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.
SECTION 28. VENUEIGOVERNING LAW.
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 AWLThe 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
29.0 The captions of the sections or paragraphs of this Agreement are for convenience only,
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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
Agreement may only be modified by a written amendment duly executed by the parties to this
Agreement.
SECTION 31. SEVERABILITY.
31.0. If any term, covenant, condition or provision of this Agreement, or the application there
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.
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IT•TRIVIP IMIR 1 1111 1111
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specified, City's Manager or the authorized representative of City's Manager shall be deemed
authorized to act of City's behalf.
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religion and furthermore that the work or services funded by this Agreement must not be used to
convey a religious message. Any portion of the compensation used in contradiction to the provisions
tf this Section shall be deemed a disallowed cost.
CITY OF DOWNEY,
a California municipal corporation
and charter city
M
n 1.71 g ri =-1 16-TM
By:
Alyson Kinkade, Pres-id-eiiiff-
a
M
EXHIBIT A
ARTIST SERVICES
- I I 17TUM
within the deadline set forth in EXHIBIT B.
Sculpture 1: The Conductor by Jane DeDecker
This figurative artwork depicts a confident and animated music conductor leading his musicians.
The sculpture is textural in the manner that the artist's hand sculpted the clay is present,
expressionistic in style. This work is visually dynamic from all angles as the composition
continually leads the eye around.
The site has been selected by the City, located at the sculpture garden at Theatre Plaza,
Downey, CA. The Artist agrees to work with the City in the development of the site plan.
• Please see attached photo
• 4ft x 2.5ft x 2ft
• Single sculpted element
• Cast in Museum -quality silicon bronze
• Warm brown/black patina
• Finished with wax
• Elevated and anchored on a custom stone base
Wart 3. STRUCTURAL ENGINEERING
The Artist shall submit Stamped Structural Engineering outlining requirements A
footings and installation. N
Part 6. INSTALLATION AND COMPLETION
• The Artist shall notify the City in writing when fabrication of the Artwork is completed,
and the Artist is ready to deliver the Artwork and install it at the Site.
• The Artist shall coordinate with the City in the development of the plan for the site. The
Artist shall deliver and install the completed artwork at the site.
• All aspects of the installation of the artwork will be the responsibility of the Artist. This
includes, transport, crane and related equipment, labor charges, hardware and epoxy.
• Installation shall be as non-invasive to the site and surroundings as possible. Details are
to be determined by engineering specific to the site. Typically, an epoxy and expansion
bolt system.
Sculpture 1: The Conductor by Jane DeDecker I
This figurative artwork depicts a ballerina in her vibrantly painted tutu leans to tie her pointe shoes
in preparation of the next performance. The sculpture is textural in the manner that the artist's
hand sculpted the clay in present, expressionistic in style. This work isvisually dynamic from all
angles emthe composition continually leads the eye around.
Pert 1. SITE SELECTION.
� The site has been selected by the City, located at the sculpture garden at Theatre Plaza,
Oovxnmy, CA. The Artist agrees 0nwork with the City in the development mfthe site plan.
Part 2.CONCEPT DESIGN
• Please see attached photo
• 2.5fto2ft x 2ft
• Single sculpted element
• Cast |nMuseum-quality silicon bronze, and acrylic paint
• Warm brown/black patina On f|gQrg, with multi -color acrylic finish oDtu1u
• Finished with wax
a, Elevated and anchored onacustom stone base
Part 3. STRUCTURAL ENGINEERING
= The Artist shall submit Stamped Structural Engineering outlining requirements for
footings and installation.
Part 4.FABRICATION
w" The Artist shall cast the artwork in museum quality bronze, the tutu and leotard will be
painted in artist -grade acrylic, unique to the City's preference.
Part 0LINSTALLATION AND COMPLETION
wThe Artist shall notify the City in writing when fabrication of the Artwork is completed,
and the Artist ieready tmdeliver the Artwork and install ite1the Site.
• The Artist eho|| coordinate with the City in the development of the plan for the site. The
Artist shall deliver and install the completed artwork at the site.
All aspects ofthe installation mfthe artwork will be the responsibility ofthe Artist. This
includes, transport, crane and related equipment, labor charges, hardware and epoxy.
� Installation shall be as non-invasive tmthe site and surroundings as possible. Details are
to be determined by engineering specific to the site. Typically, an epoxy and expansion
bolt system.
Part 7. MAINTENANCE PLAN
All maintenance work of Artwork(s) is performed on the Site. Approximate start date is one
year after installation, schedule will be determined between J.K. Designs, Inc. and the City
of Downey.
MAINTENANCE WORK INCLUDES:
1. Cleaning Artwork with non-ionic soap and potable water. Artist will use a power washer
(3500 psi) to rinse Artwork; this will remove dust, dirt so that when Artist hand- washes the
Artwork with non-ionic soap, the Artist is not sanding the surface with dirt granules. Artist
will be using a soft, nylon bristle brush and clean cotton rags to clean the Artwork. Artist
will make sure that the bucket of soapy water remains clean. Artist will power wash the
Artwork a second time to rinse the soap off.
2. Artist will clean the base and name plaque of Artwork.
3. Before Artist applies the wax, Artist will towel dry the wet Artwork and use a blower to
remove the water from the crevices or folds. Artist will not place wax over any amount of
water.
4. Artist will make sure that all weep holes are unclogged and opened. Artist will look for any
structural problems and cracks in the Artwork. Often older Artwork begins to hold water
and Artist will evaluate whether or not this trapped water will cause damage to the Artwork,
if so a small hole will be drilled in the Artwork to release the water.
5. Cold Waxing: Please note that Cold Waxing is not an easy process because it one must
be very careful not to over wax and leave small chunks of wax in crevices that turn white
over time. Artist will use conservationist approved waxes, such as, MinWax, Bowling Wax,
or Renaissance Wax. Artwork will be buffed with a dry cotton towel.
6. Hot Waxing: Using a Gas Propane Torch and monitoring the heat with a pyrometer gauge
the Artist will warm the bronze portions of the Artwork, keeping the heat temperature
evenly throughout the Artwork. Artist will apply the wax as we heat the Artwork. The wax
is a recipe by conservators. Artwork will be buffed with a damp cotton towel.
7. Stainless Steel elements of Artwork will be power washed and sprayed with a rust
remover.
MATERIAL and TOOLS: soft nylon bristle brush, potable water, dawn dish soap, non- ionic,
pressure washer, wax, gas propane torch, propane tank, white china bristle brushes for wax,
cotton towels and ladders.
EXHIBIT B
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1
TIMELINE 4-5 months from deposit TASK
By October 16, 2020 Execution of Contract
By October 31, 2020 Stamped Structural Engineering and Proof of Insurance
October 16 — December 15, 2020 Casting of sculpture in bronze at foundry
By January 1, 2021 Site Preparation in coordination with the City
December 16, 2020 — January 15, 2021 Finishing of metal and patina application
By January 20, 2021 Crating and Transport of Sculpture and Stone Base
On or around January 25, 2021 Anticipated Installation of the Sculpture and Base
TIMELINE 4-5 months from deposit
TASK
By October 16, 2020
Execution of Contract
By October 31, 2020
Stamped Structural Engineering and Proof of Insurance
October 16 — December 15, 2020
Casting of sculpture in bronze at foundry
By January 1, 2021
Site Preparation in coordination with the City
December 16, 2020 — January 15, 2021
Finishing of metal and patina/paint application
By January 20, 2021
Crating and Transport of Sculpture and Stone Base
On or around January 25, 2021
Anticipated Installation of the Sculpture and Base
IIIIIIIIIIIIIII11MIAIM
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I Fee. Artist's fee for Artwork Design, Fabrication and Installation, including all expenses relating thereto, shall
not exceed the sum of SEVENTY THOUSAND DOLLARS AND 00/100 ($70,000.00). Artwork must ship and
install together at this price.
2. Interim Payments. City agrees to pay Artist in installments as set forth in the schedule below and in
accordance with the terms of Section 3 of this Agreement.
3. PgMnt §j!gh0dule.
• One-half (50%) Thirty -Five Thousand Dollars 00/100 ($35,000.00) upon execution of the contra
• On or before December 15, 2020, Fourteen Thousand Dollars 00/100 ($14,000.00)
• On or before January 15, 2021, Fourteen Thousand Dollars 00/100($14,000.00)
• Upon installation on or before February 15, 2021, Seven Thousand Dollars 00/100($7,000.00).]
4. Fabrication and Installation, Payment Schedule for Artwork. City shall pay Artist for the costs and expenses
identified in the Artwork Budget as developed per EXHIBIT C. Artist shall submit invoices for the costs and
expenses outlined in the Budget and shall also submit documentation required regarding payment of
prevailing wages, if any ("Documentation Provision"). The City may make incremental payments of budget
line items to facilitate fabrication and installation, at the discretion of the City's Director of Community
Development. The form of the invoice shall be subject to the approval of the City's Art Project Manager.
Artist may adjust the line items within the Fabrication and Installation budget with the prior written approval
of City's Art Project Manager, which approval will not be unreasonably withheld.
5. Bg!Lnbursables: City will not make any additional payment for Artist's expenses
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.
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 Director of Community Development.
10. Annual clean and wax condition maintenance of (2) Artworks: $1,000.00 flat rate*
Price is based upon a travel route. A travel route is where a regional grouping of cleanings is compiled and
scheduled to help defer the cost of travel to the client. If a specific date is requested a $4000.00 travel fee*
will be added to the above bid.
*Rates are subject to change over time due to unforeseen increases in materials, fuel, and/or labor (cost of
living). Any such changes will be submitted in writing prior to work being done. Any additional conservation work,
and/or work requiring removal and reinstallation of Artwork (i.e. repatina or metal work repair) will be submitted
for review prior to being done.
1. Time for Comoliance. Artist shall not commence the Services orthe Project uDdmrthis
Agreement until dhas provided evidence satisfactory tothe City that ithas 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 tomodify these requirements, including
limits, based on the nature of the risk, prior experience with insurer, coverage orother special
circumstances.
U shall, e1its expense, procure and maintain for the duration
mfthe Agreement insurance against claims for injuries b»pmrmoneordanma0eebopnooertvvvhinhnnoyahee
from orinconnection with the performance ofthe Agreement, the Services orthe Project bvthmArtist.de
agents, representatives, employees orsubcontractors. Artist shall also require all ofits subcontractors to
procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet mt
least the following nn|n|nnunn levels of coverage:
(A) Minimum Scope_2f Insurance. (1) Commercial General Liability (CGL):
Insurance Services Office Form CGOOO1 covering CGLonan^oocumenme^basis including products and
completed operations, property damage, bodily injury andpenaona|andadVertimingi jury;(2).4utomobile
Liability: Insurance Services Office Form Number CA 0001 covering Code 1 (any auto) orifArtist owns no
autos, Code 8(hired)and 8(ngn-oxvnmd); 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 AnnitG no less than: (1)
Commercial General Liability /CGL): Goless than $2.0OQ.O00per occurrence for products and completed
operations, bodily injury, pnopedsdanmageandperepna|andmdVedUming| jury. |fCommercial General
Liability Insurance or other form with general aggregate limit applies, either the general aggregate limit
shall apply separately 10this Agreement/location (ISO CG 2503or25O4)orthe 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 bxthe Labor Code ofthe State ofCalifornia with Statutory Limits; (4)Employer's Liability:
Employer's Liability limits of no less than $2,000,000 per accident for bodily injurymrdimemae. Employer's
Liability coverage may be waived by the City if City receives written verification that Artist has no
employees.
|fthe Artist maintains broader coverage and/or higher |hnKothanthennininnunmshomm/inUlimaubdivision
3.2.10.2. the City requires and shall be entitled to the broader coverage and/or the higher limits maintained
bVthe Artist. Any available insurance proceeds in excess of the specified minimum limits of insurance and
coverage shall beavailable tmthe City.
maintain,(C) Professional Liability (E'rrors & Omissions), Artist shall procure and
'. • • fi ' • is i f::' � • : • • •.:: _. • • f `
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will
maintained bythe City, itsdirectors, officials,officers, employees,agents •volunteers• `excessof
_ Artist's insurance • shall not•- called upon to contribute with it in any way.
V. �a�bn of •: NopgcialAll required • this Sectionshall
contain standard separation of insureds provisions. In addition, such insurance shall not contain any
special limitations on the scope of protection afforded to the City, its directors officials, officers, employees,
agents an•' volunteers.
eitherVI. Deductibles and SetNnsurance Rgkntions. 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
•insured or City.
VII. Am2igbildy of insurers. Insurance is to be placed with insurers with a current A.M. Best's
rating no less than A:VII, authorized to do business in California, and satisfactory to the City.
i • • •...Artist shall furnish Cityoriginal of insurance,
includingall requiredamendatory (or copies ofthe applicablepolicy languageeffective
Commercial General Liability policy listing all policy endorsements to the City before the commencement of
work under this Agreement. However, failure toobtain the required documents prior0mthe commencement
of work under this Agreement shall not waive the Artist's obligation to provide them to the City. The City
nseerVem the right to require cmnnp|ete, certified omp|ee of all required insurance po|ioiea, including
endorsements, atany time.
Xi Uok*s provide coverage oOmclaims-made basis:
(A) The retroactive date must beshown and must bebefore the date ofthis
Agreement or the date work commences under this Agreement, whichever is earliest;
(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 Agreement;
(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 Agreement or the date work
commences under this Agreement, whichever is earliest, the Artist must purchase extended reporting
coverage for ominimum offive (5)years after completion ofthe Services under this Agreement.
X. Safety. Artist shall execute and maintain its work ooaa0oavoid injury ordmrnegetoanV
person orproperty. 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 of the work and the conditions under which the work
is to be performed. Safety precautions as applicable ahe|| inc|ude, 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 apparel msare necessary orlawfully required toprevent accidents orinjuries; and(C)
adequate facilities for the proper inspection and maintenance of all safety measures.
EXHIBIT E
SPECIALEBqSd�IONS
FORM ASSIGNMENT FOR SCULPTU
0141AEREAS, the undersigned, authors of the creative work, USA (referred
to hereinafter as "ASSIGNORS") have created an original work of authorship entitled for
which together with related creative works hereinafter as the COPYRIGHT;
WHEREAS , a _ having its principal place of business at_ (referred
to hereinafter as "ASSIGNEE"), is desirous of acquiring all entire right, title and interest in, to and under said
COPYRIGHT, and in, to and under any common law or registration of Copyrights or similar legal protection
to be or having been obtained therefor in the United States of America, its territorial possessions and in any
and all countries foreign thereto; and
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, ASSIGNORS hereby sell, assign, transfer and set over unto the ASSIGNEE, its successors
and assigns the entire title, right and interest in and to the COPYRIGHT, and to all common law or similar
legal protection arising therefrom, not only in the United States and its territorial possessions, but in all
countries foreign thereto to be obtained for said COPYRIGHT by said legal protection thereof or any legal
all priority rights under any International Convention.
ASSIGNORS further covenant that no assignment, sale, agreement or encumbrance has been or will
be made or entered into which would conflict with this assignment; and
ASSIGNORS further covenant that ASSIGNEE will, upon its request, be provided promptly with all
pertinent facts and documents relating to said COPYRIGHT, and will testify as to the same in any litigation
related thereto and will promptly execute and deliver to ASSIGNEE or its legal representatives any and all
papers, instruments or affidavits required to apply for, obtain, maintain, issue and enforce said invention and
said Copyrights and said equivalents thereof in any foreign country which may be necessary or desirable to
carry out the purposes thereof.
ASSIGNORS and ASSIGNEE each covenant to perform all acts and execute and deliver all
documents as may be necessary or appropriate to carry out the intent and purposes of this assignment.
This assignment embodies the entire understanding of ASSIGNORS and ASSIGNEE and
sur)ersedes and reDlaceswiry a-ird all nre-eyisfiva-.-iri6wa-i nwa,
IN
respective duly authorized representative.
WITNESS my hand at this day of _ 2020,
city State Month
WITNESS my hand at this — day of _ 2020,
City State Month
4j ffv���
U119MMM
WHEREAS, the undersigned, authors of the creative work, USA and
USA (referred to hereinafter as "ASSIGNORS") have created an original work
of authorship entitled for which together with related creative works hereinafter as the
COPYRIGHT;
WHEREAS , a... having its principal place of business at_ (referred
to hereinafter as "ASSIGNEE"), is desirous of acquiring all entire right, title and interest in, to and under said
COPYRIGHT, and in, to and under any common law or registration of Copyrights or similar legal protection
to be or having been obtained therefor in the United States of America, its territorial possessions and in any
and all countries foreign thereto; and
211 priority rights under any International Convention.
01THS [ZION 011611-11011 MY J14,
1011 NOW
said Copyrights and said equivalents thereof in any foreign country which may be necessary or desirable tit
carry out the purposes thereof.
ASSIGNORS and ASSIGNEE each covenant to perform all acts and execute and deliver all
:tocuments as may be necessary or appropriate to carry out the intent and purposes of this assignment.
This assignment embodies the entire understanding of ASSIGNORS and ASSIGNEE and
Lei :VI
respective duly authorized representative.
WITNESS my hand at I , this — day of 2020,
City State Month
WITNESS my hand at 11 t , this _ day of 2020,
City State Month