CALIFORNIA
ARTIST AGREEMENT
FOR CITY USE ONLY
Contract No. CIP No.
Resolution No. Project No. REV 11/2021
AGREEMENT FOR DESIGN, FABRICATION, TRANSPORTATION AND
INSTALLATION OF ART WORK FOR THE MURAL ON THE HOLLIS STREET FAÇADE AT 1456 63RD STREET ART PROJECT
THIS AGREEMENT FOR DESIGN, FABRICATION, TRANSPORTATION, AND
INSTALLATION OF ART WORK FOR THE MURAL ON THE HOLLIS STREET FAÇADE AT 1456 63RD STREET ART PROJECT (“Agreement"), is effective and entered into as of _______________ (“Effective Date”) by and between THE CITY OF EMERYVILLE (“City”), and GUILLAUME OLLIVIER DBA PACIFIC MEDIA VENTURES, LLC (“Artist”), collectively referred to as the “Parties.” WHEREAS, pursuant to Article 4 of Chapter 2 of Title 3 of the Emeryville Municipal Code (“Public Art Ordinance”), the City has allocated funds for the design, fabrication, transportation, and installation of an original piece of art for the MURAL ON THE HOLLIS STREET FAÇADE AT 1456 63RD STREET Public Art Project (“Project”); and WHEREAS, the Artist has developed a proposal to design, fabricate, transport, and install an original piece of art at 1456 63rd Street (“Project Site”), and as more particularly set forth in the Art Work Proposal submitted by Artist pursuant to that certain Art Work Proposal dated March 19, 2021 (“Art Work Proposal”), Artist pursuant to that certain Agreement for Artwork Proposal dated March 19, 2021 by and between the City and Artist; and
WHEREAS, the Art Work Proposal submitted by the Artist was reviewed by the Emeryville Public Art Committee, and the Committee has recommended to the City Council that it enter into this Agreement with Artist to design, fabricate, transport, and install the Art Work; and
WHEREAS, on June 7, 2022, the Emeryville City Council approved the Public Art Committee’s recommendation to select the Artist and authorized the City Manager to enter into this Agreement with the Artist to design, fabricate, transport, and install the MURAL ON THE HOLLIS STREET FAÇADE AT 1456 63RD STREET Art Work at the Project Site;
NOW, THEREFORE, the City and the Artist, for the consideration and under the conditions hereinafter set forth, agree as follows:
1. DEFINITIONS
Where any word or phrase defined below, or a pronoun used in place thereof, is used in any part of this Agreement, it shall have the meaning herein set forth:
Attachment 1
City of Emeryville | Artist Agreement: Design, Fabrication, Transportation and Installation of Art Work REV 11/2021
"Artist” shall mean Guillaume Ollivier .
"Art Work" shall mean the Art Work by the Artist for the Project, as described in Section 3 herein and Exhibit A, attached hereto and incorporated herein, and as approved by the City Council.
“City” shall mean the City of Emeryville, a municipal corporation. "City Council" shall mean the City Council of the City of Emeryville, California. "City Manager" shall mean the City Manager of the City of Emeryville, California. "Committee" shall mean the Public Art Committee of the City of Emeryville, California. “Project Manager” shall mean Amber Evans of the City of Emeryville Economic Development and Housing Department, or other designee approved by the City Manager.
“Project Site” shall mean the approved location for the installation of the Art Work, as described in EXHIBIT B.
“Services” shall have that meaning described in Section 3. “Eligible Costs” shall be those costs for supplies and materials that are necessary and required for the execution and provision of Services, as described in Exhibit C. “Interim Payment” shall have that meaning described in Section 9.3.
Whenever the words "as directed", "as required", "as permitted", or words of like effect are used, it shall be understood as the direction, requirement, or permission of the City.
The words "sufficient", "necessary", or "proper", and the like, mean sufficient, necessary or proper in the judgment of the City.
The words "approval", "acceptable", "satisfactory", or words of like import, shall mean approved by, or acceptable to, or satisfactory to the City, unless otherwise indicated by the context.
2. TERMS OF THE AGREEMENT
The term ("Term") of this Agreement shall commence upon the Effective Date and be completed no later than DECEMBER 31, 2022, or upon the Final Acceptance of the Art Work by the City Council as described in Section 6, whichever is earlier.
City of Emeryville | Artist Agreement: Design, Fabrication, Transportation and Installation of Art Work REV 11/2021
3. SERVICES ARTIST AGREES TO PERFORM
The Artist agrees to design, fabricate, transport, and install the Art Work at the Project Site and as more specifically set forth in EXHIBIT A, which is attached and incorporated into this Agreement except to the extent inconsistent with the terms of this Agreement.
The Artwork is generally described as a mural as depicted in Exhibit A of 2,250 square feet on the southern edge of the Hollis Façade of 1456 63rd Street. The Artist will be responsible for the following services (collectively, the “Services”):
providing the City with the final design submittal for approval; fabricating and installing the Art Work and the landscape materials in the timeframe described in Section 5;
consulting with the City on the Art Work;
providing reports, documentation and description of maintenance requirements of Art Work; and
securing all Project Approvals for fabrication and installation from the City and any other governmental agencies.
4. PROJECT APPROVALS
Artist, at his expense, shall secure or cause to be secured any and all project approvals and permits (“Project Approvals”), which may be required by City or other governmental agencies, including compliance with the California Environmental Quality Act (Public Resources Code § 21000, et seq.). Staff will work cooperatively with Artist to assist in coordinating the expeditious processing and consideration of all necessary Project Approvals for the Art Work. However, the execution of this Agreement does not constitute the granting of, or a commitment to obtain, any Project Approvals required by City or any other governmental agency.
5. TIMELY PROVISION OF SERVICES
Artist shall commence and complete design, fabrication, transportation, and installation of the Art Work and satisfy all other obligations and conditions of this Agreement with respect thereto within the times established in this Agreement. The Artist agrees to the following schedule of deliverables. Project Manager and Artist may mutually agree in writing to changes in the following schedule.
5.1 Final Design
Artist shall submit the Final Design of the Art Work to the Project Manager by JULY 1, 2022. Final Design Submittal materials shall include:
to-scale working drawings for all components of the Art work; structural/engineering drawings;
City of Emeryville | Artist Agreement: Design, Fabrication, Transportation and Installation of Art Work REV 11/2021
samples of materials to be used indicative of color or surface treatment; a scaled site plan showing the revised and accurate site placement of the Art Work;
budget showing current cost estimates on fabrication and materials; written specifications and recommendations for maintenance of the Art Work and its systems.
Within fifteen (15) calendar days of receipt of the Final Design submitted by the Artist, the Project Manager shall either approve or reject the Final Design and provide Artist written notice thereof. If the Final Design is rejected, the Project Manager shall provide the Artist the reasons for such rejection; the Artist shall thereafter correct and resubmit the Final Design to the Project Manager within fifteen (15) calendar days of the rejection. Once the Final Design is accepted, the Project Manager shall provide Artist with written notice of its approval of the Final Design and Notice to Proceed with Fabrication of the Art Work (“Final Design Approval – Fabrication Notice to Proceed”).
5.2 Installation Encroachment Permit
Within fifteen (15) calendar days of issuance of the Final Design Approval-Fabrication Notice to Proceed, Artist shall obtain all necessary Project Approvals, including but not limited to an Encroachment Permit from City, for Installation of the Art Work at the Project Site.
5.3 Fabrication
Upon issuance of the Final Design Approval – Fabrication Notice to Proceed by the City, Artist shall commence with fabrication of the Art Work and complete fabrication thereof within ninety (90) calendar days of issuance of the Final Design Approval – Fabrication Notice to Proceed.
Artist will fabricate the Art Work in accordance with the Final Design approved by City for the design of the Art Work.
Artist shall give Project Manager one (1) week notice of the dates of the following milestones for the fabrication of the Art Work: 25% complete, 50% complete, and 75% complete. The City retains the right to review and inspect the Art Work in studio and to approve or reject it as fabricated.
The City will review and approve the Art Work as fabricated at each milestone and will determine, in its sole reasonable discretion, that it meets all of the specifications previously approved by the City and that no default by Artist hereunder has occurred and is continuing. Artist shall contact Project Manager by email two weeks prior to the date of 100% completion of fabrication of the Art Work for review and approval of fabrication of Art Work by Project Manager. Upon approval of the fabrication of the Art Work, the Project Manager shall provide Artist written notice of the approval of the fabrication of the Art Work (“Fabrication Approval Notice”).
City of Emeryville | Artist Agreement: Design, Fabrication, Transportation and Installation of Art Work REV 11/2021
5.4 Art Work Installation Plan
Within fifteen (15) calendar days from issuance of the Fabrication Approval Notice, Artist shall submit to the Project Manager an Art Work Installation Plan describing the fabrication, delivery, and installation of the Art Work at the Project Site (“Art Work Installation Plan”). The Art Work Installation Plan shall include a list of equipment and materials to be used, surveying requirements, details regarding the limit of the work, staging and storage needs, a list of subcontractors and equipment to be used on the Project Site, a detailed schedule of work at the Project Site. Artist shall submit all necessary Project Approvals, including but not limited to an Encroachment Permit from City for installation of the Art Work, concurrent with submittal of the Art Work Installation Plan.
Within fifteen (15) calendar days of receipt of the Art Work Installation Plan, City shall notify Artist in writing of approval or rejection of the Art Work Installation Plan. In the case of rejection, Artist shall make revisions to the Art Work Installation Plan specified by City. Upon approval of the Art Work Installation Plan the Project Manager shall issue the Art Work Installation Plan and Notice to Proceed with Fabrication and Installation of the Art Work at the Project Site (“Installation Plan Approval – Installation Notice to Proceed”).
Artist will be responsible for the labor, material, and equipment necessary to load and transport the Art Work to the Project Site. Artist will install the Art Work in accordance with the approved Art Work Installation Plan. Artist shall transport and install the Art Work at the Project Site within sixty (60) calendar days of the date of the Installation Plan Approval-Installation Notice to Proceed. Artist shall coordinate the delivery and installation of the Art Work with the Project Manager.
At least three (3) business days prior to the fabrication and installation of the Art Work, the Artist shall contact the Project Manager for approval to begin work at the Project Site. The Project Manager or other City staff shall be present at the Project Site on the first day of fabrication.
Artist shall notify Project Manager upon completion of installation of the Art Work for review and approval of the installed Art Work by the Project Manager.
5.5 Documentation and Final Maintenance Plan
Within fifteen (15) calendar days of the date of the Installation Plan Approval-Installation Notice to Proceed, Artist shall submit to Project Manager a Documentation and Final Maintenance Plan addressing the following elements:
1) A written report for the City’s files including complete information regarding the intent of the Art Work and the scale, materials, and processes used in the fabrication and installation of the Art Work.
2) Final written specifications and recommendations for maintenance of the Art Work, including an estimate of annual maintenance costs associated with the Art Work.
City of Emeryville | Artist Agreement: Design, Fabrication, Transportation and Installation of Art Work REV 11/2021
3) One (1) set of digital images provided on CD for program and archival purposes, showing fabrication, installation, and completed phases of the Art Work.
Project Manager shall review the Documentation and Final Maintenance Plan within fifteen (15) calendar days of receipt. Artist shall make revisions to the Documentation and Final Maintenance Plan as specified by City prior to its approval. Upon approval of the Documentation and Final Maintenance Plan, the Project Manager shall issue written notice of its approval (“Maintenance Plan Approval Notice”).
6. APPROVAL PROCESS
6.1 Generally
If the City in its sole discretion determines to withhold any approval of any element as specified below, the City shall have the right to terminate this Agreement and shall have no further obligations under this Agreement, and the provisions of Section 18 shall apply.
6.2 Final Design Submittal
The Artist shall submit the Final Design Submittal to the Project Manager as described in Section 5.1, and receive approval prior to fabrication and installation.
6.3 Fabrication and Installation of Art Work
The Artist shall consult with the Project Manager prior to and during the fabrication and installation of the Art Work, as described in Sections 5.3 and 5.4. The installed Art Work shall be reviewed by the Project Manager prior to Final Acceptance of the Art Work by the City Council.
6.4 Conditions to Final Acceptance
The completed Art Work shall not be deemed to have been accepted by the City Council until each and every one of the following conditions has been fulfilled, as determined by the City Council:
All approvals required under Section 5 shall have been obtained by Artist; and The installation of the Art Work shall conform to the Final Design specifications for the Art Work approved by Project Manager pursuant to Section 5.1 above; and
The Art Work shall have been fabricated and installed on a timely basis; The completed Art Work shall have been reviewed and approved by the Project Manager.
The Art Work shall be in substantial compliance with all other terms and conditions contained in this Agreement and shall not be in default of this Agreement.
Artist has provided City with a Documentation and Final Maintenance Plan (“Maintenance Plan”) addressing the following elements:
City of Emeryville | Artist Agreement: Design, Fabrication, Transportation and Installation of Art Work REV 11/2021
1) A written report for the City’s files including complete information regarding the intent of the Art Work and the scale, materials, and processes used in the fabrication and installation of the Art Work.
2) Final written specifications and recommendations for maintenance of the Art Work, including an estimate of annual maintenance costs associated with the Art Work.
3) One (1) set of digital images provided on CD for program and archival purposes, showing fabrication, installation, and completed phases of Art Work.
4) Maintenance and Materials list as described in Section 15.1. Artist shall advise the Project Manager in writing when these conditions have all been met. The Project Manager shall notify Artist in writing of any deficiencies in meeting the conditions for Final Acceptance.
The City Council has taken action for Final Acceptance of Art Work (“Final Acceptance”).
7. CONSULTATION DURING DESIGN, FABRICATION AND INSTALLATION;
DEVIATION FROM APPROVED SPECIFICATIONS
7.1 Consultation
Artist hereby acknowledges that the goal of the parties to this Agreement is the installation of a work of art that best represents the creative talents of Artist and conforms to the requirements of the City. To those ends, Artist agrees to be available as reasonably required for consultation with the Project Manager during design and execution of the Art Work, at no additional cost to the City. Artist shall also make good faith efforts to attend any inauguration or presentation ceremonies and/or public relation events.
7.2 Deviations From Approved Specifications
Artist shall fabricate and install the Art Work in strict conformity with the specifications and designs approved by the City pursuant to Sections 5 and 6 above. However, Artist may at any time make a request of the City for its approval of a deviation from the approved specifications. All such requests must be made in reasonable specificity and with reasonable advance notice to provide the City with sufficient information and time to make an informed and considered decision. City reserves the right to bring such requests to the Committee and/or City Council for approval. In no event shall any deviation increase the project scope and/or Contract Amount without prior City Council approval. The City may withhold approval to any such requested deviation in its sole discretion.
City of Emeryville | Artist Agreement: Design, Fabrication, Transportation and Installation of Art Work REV 11/2021
8. PREPARATION OF AND ACCESS TO PROJECT SITE/NOTICE OF
CONFLICTING CONDITIONS
The preparation of the Project Site shall be the responsibility of the Artist. Artist shall not fabricate or install the Art Work until access to the Project Site has been approved and scheduled in coordination with the Project Manager. Cost of transportation to and from the Project Site and any parking fees incurred by the Artist are the responsibility of the Artist.
Where the Artist’s work is associated with that of any other contractor, the Artist shall examine the adjacent work and report in writing to the Project Manager any visible defect or condition preventing the proper execution of Artist’s contract. If Artist proceeds without giving notice, the Artist shall be held to have accepted the work or material and the existing conditions, and shall be responsible for any defects in its own work consequent thereon, and shall not be relieved of any obligation or any guarantee because of any such condition or imperfection.
In case of delay in Artist’s services through no fault of Artist, including construction delay, Artist shall store the Art Work at no additional cost to City for up to 6 months. If Artist’s work is delayed due to construction delays at the Project Site or other delays caused by City or its contractors, so that Artist suffers documented direct cost impacts in the form of increased costs of materials and/or labor, Artist may apply to the City for reimbursement of those expenses, which City may award in its sole discretion. In no event shall reimbursement of expenses exceed the Contingency Amount.
9. COMPENSATION
9.1 Contract Amount
The total compensation is EIGHTY THOUSAND DOLLARS AND NO CENTS ($80,000.00) (“Contract Amount”) for all Services under this Agreement, including payment to all suppliers, subcontractors, fees, taxes, Emeryville business tax certificate, Project Approvals, insurance, transportation to and from meetings, site preparation, restoring site to prior condition, and all other expenses associated with the scope of work specified in this Agreement. The Artist shall be responsible for the payment of all mailing or shipping charges on submissions to the City, the costs of fabricating, transporting, and installing the Art Work, for transporting and unloading materials and equipment to the Project Site, and for the costs of all travel by the Artist and the Artist’s agents, subcontractors, fabricators, and employees necessary for the proper performance of the Services required under this Agreement.
No charges shall be incurred under this Agreement nor shall any payments become due to Artist until all deliverables and Services required under this Agreement are received from and performed by Artist and approved by the City as being in accordance with this Agreement and the Artist provides invoices for each Interim Payment. The final payment is due and payable upon Final Acceptance of the Art Work and a final invoice is submitted by the Artist.
City of Emeryville | Artist Agreement: Design, Fabrication, Transportation and Installation of Art Work REV 11/2021
In no event shall the City be liable for interest or late charges for any late payments.
9.2 Method of Payment
City agrees to pay Artist for the Services performed and Eligible Costs incurred by Artist upon certification by City that the Services were actually performed and Eligible Costs actually incurred in accordance with this Agreement. A schedule of the approved Eligible Costs is included herein as EXHIBIT C.
9.3 Payment Schedule
City shall make payments to Artist for the amounts specified and Services as described in EXHIBIT D: ARTIST’S PAYMENT SCHEDULE. Compensation for Services performed and Eligible Costs incurred shall be paid to Artist upon receipt and approval of invoices by City. Artist shall submit invoices for each Payment Milestone described in EXHIBIT D. City shall pay Artist within forty-five (45) days after approval of the invoice by City (each an “Interim Payment”). In no event shall total payment exceed the total Contract Amount described in Section 9.1; provided further that no payment shall include expenditure of any Contingency Amount, unless such expenditure has been approved in writing by City as described in Section 9.1 and invoices for Eligible Costs in Exhibit C demonstrate costs in excess of total payments made and to be made to the Artist. City may withhold any payments to Artist in any instance in which Artist has failed or refused to satisfy any material obligation provided for under this Agreement or is otherwise in default. In no event shall City be responsible for payments to supplier or subcontractor of Artist.
9.4 Effect of Interim Payments
Approval of the work to permit an Interim Payment is solely for the benefit of the Artist.
Any Interim Payment does not constitute acceptance or approval of the work by the City; nor shall it be construed as a waiver of the City's right to require that the work conform strictly to the Final Design as approved by the Project Manager, as specified under Section 5.1.
10. METHOD OF PAYMENT; AUDIT AND RECORDS
Invoices furnished by the Artist under this Agreement must be in a form acceptable to the City. Payment shall be made within forty-five (45) days after approval of the invoice by Project Manager.
At any time during normal business hours and as often as the City may deem necessary, there shall be made available to the City for examination all records with respect to all matters covered by this Agreement. The Artist will permit the City to audit, examine, and make excerpts or transcripts from such records, and to audit all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and or data relating to all matters covered by this Agreement.
City of Emeryville | Artist Agreement: Design, Fabrication, Transportation and Installation of Art Work REV 11/2021
11. TAXES
Any taxes levied upon this Agreement, the transaction, or the equipment or services delivered under this Agreement, including sales or use taxes shall be borne by the Artist.
12. LIABILITY FOR DAMAGE TO EQUIPMENT OR ART WORK
The City shall bear no responsibility, nor incur any liability, for loss or damage to the Art Work or any Artist-owned equipment involved in Artist’s performance under this Agreement.
13. INDEPENDENT CONTRACTOR
Artist shall be deemed at all times to be an independent contractor and shall be wholly responsible for the manner in which the Artist performs the service required by the terms of this Agreement. Nothing contained herein shall be construed as creating an employment or City relationship between the City and the Artist. Terms in this Agreement referring to direction from the City shall be construed as providing for direction as to policy and result of the Artist’s work only and not as to the means by which such a result is obtained.
Artist is solely responsible for hiring and paying subcontractors and employees, as well as responsible for the acts of these subcontractors and employees.
14. ARTIST WARRANTIES
14.1 Conformance with Plans and Specifications
Artist hereby expressly warrants to the City that the Art Work, and all services and materials incorporated therein, shall conform to all plans and specifications of the Art Work approved by the City. The Art Work shall be subject to inspection and rejection by the City from the beginning of fabrication until the completion and Final Acceptance. An inspection by the City of any work or material shall not be deemed to be a waiver of any future right of inspection or of any right to demand correction of any subsequently discovered defect. Any work or material found to be unsatisfactory or defective before final approval of the work shall be corrected or replaced by the Artist within a reasonable time. Inspection shall not relieve the Artist of the Artist’s obligation to furnish materials and workmanship reasonably in accordance with the contract.
14.2 Defects in Material and Workmanship
Artist warrants that the work will be fit for the intended purpose; will be safe and will not have any nuisance or harmful effect; and will be free of defects in workmanship or materials, including inherent defects. Artist warrants that it shall, at Artist’s cost and expense, remedy such defects in workmanship or materials that appear within twentyfour (24) months of the Final Acceptance of the Art Work.
City of Emeryville | Artist Agreement: Design, Fabrication, Transportation and Installation of Art Work REV 11/2021
In the event the Art Work should deteriorate due to an inherent defect during the Installation Period, the Artist will replace the work at Artist’s expense. "Inherent defect" refers to a quality within the material or materials which comprise the Art Work which, either alone or in combination, results in the tendency of the work to destroy itself. "Inherent defect" does not include any tendency to deteriorate which is specifically identified in the proposal submitted by the Artist.
14.3 Title
The Artist represents and warrants that 1) the Art Work is solely the result of the artistic effort of the Artist; and 2) the Art Work is unique and original and does not infringe upon any copyright.
15. MAINTENANCE, REPAIRS, ALTERATIONS AND REMOVAL
15.1 Maintenance and Repair
As a condition to Final Acceptance by the City of the Art Work, the Artist shall provide the City with a materials list, the manufacturer’s technical sheets and/or specifications for the materials, and a written description of the regular maintenance needs of the Art Work (“Maintenance and Materials List”). Routine maintenance of the Art Work shall be the responsibility of the City. The City shall maintain the Art Work and/or make minor or emergency repairs without Artist's approval or consultation, provided such work is performed in accordance with the maintenance and materials information provided by the Artist. If necessary maintenance and repairs cannot be made in accordance with the Artist’s specifications, or if the Artist has provided insufficient information to the City, the City may use its best judgment to effect necessary repairs in a timely fashion.
15.2 Removal or Destruction
Artist hereby acknowledges that the Art Work, when installed, will be incorporated within and made a part of the Project Site in such a way that removing the Art Work from the Project Site, or the destruction or modification of the Project Site may cause the destruction, distortion, mutilation or other modification of the Art Work. Artist therefore agrees that the City shall have the absolute right incidental to its ownership of the Art Work to alter, change, modify, destroy, remove, relocate, move, replace, transport, or transfer, in whole or in part (such actions being referred to herein as "Alterations"), the Art Work at such time as the City shall deem necessary in order to exercise its powers and responsibilities with respect to public works and improvements in furtherance of City's operations. The City shall make a good faith effort to provide the Artist with prior written notice of the City's intent to undertake any Alterations to the Art Work. To the extent the provisions of this Section are inconsistent with the provisions of federal or state law, including without limitation the California Art Preservation Act (California Civil Code Sections 980 et seq.) and the 1990 Visual Artists' Rights Act, Artist hereby waives any right to preservation of the Art Work provided by those laws; provided, however, that the Artist shall retain any right to disclaim authorship of the Art Work pursuant to and under the conditions set forth in the California Art Preservation Act and the 1990 Visual Artists’ Rights Act.
City of Emeryville | Artist Agreement: Design, Fabrication, Transportation and Installation of Art Work REV 11/2021
15.3 Public Hazard
Artist warrants to the City that the Art Work as installed does not contain features, materials or elements that pose a foreseeable danger to the public. In the event that the City determines that the Art Work presents an imminent hazard to the public, the City may authorize the removal of the Art Work without approval of the Artist. The Artist shall be notified within ten (10) days of any such action, and the City shall then consider options for the final disposition, repair, reinstallation, maintenance or de-accession of the Art Work. In the event that the Art Work cannot be removed without being irreparably damaged or destroyed, the Artist hereby agrees to waive any rights the Artist may have under the California Art Preservation Act and the 1990 Visual Artists’ Rights Act, provided, however, that the Artist shall retain any right to disclaim authorship of the Art work pursuant to and under the conditions set forth in the California Art Preservation Act and the 1990 Visual Artists’ Rights Act.
16. INSURANCE
16.1 Required Insurance
Artist shall place and maintain for the periods stated below, and pay the cost thereof, the following insurance policies:
A. Worker's Compensation. If Artist has employees, Artist shall procure and maintain statutory Worker’s Compensation Insurance in the jurisdiction where the work is being performed and provide a waiver of subrogation against the City.
Artist shall also procure and maintain Employer’s Liability Insurance with a limit of no less than $1,000,000.00 each accident, covering all employees. If Artist warrants that it is not an employer and has no employees as defined by the California Labor Code Sections 3351-3351.5, then the City waives the requirement for Worker's Compensation and Employer's Liability Insurance under this Agreement.
Artist shall ensure that Artists’ subcontractors who do qualify as employers as defined by the California Labor Code Sections 3351-3351.5 procure prior Worker's Compensation, with Employer's Liability insurance, with limits of no less than $1,000,000.00 each accident, covering all employees employed by Artist’s subcontractor to provide statutory benefits as required by the laws of California, said policy shall be endorsed to provide that the insurer waives all rights of subrogation against the City.
I certify that my business has no employees and that I do not employ anyone. I am exempt from the legal requirement to provide Workers’ Compensation Insurance.
__________ (Artist’s Initials)
City of Emeryville | Artist Agreement: Design, Fabrication, Transportation and Installation of Art Work REV 11/2021
B. General Liability Insurance. Artist shall procure and maintain Comprehensive General Liability Insurance with limits not less than $1,000,000.00 for each occurrence combined single limit for bodily injury and property damage, including coverage for contractual liability, broad form property damage, completed operations, and if any subcontracted work, independent contractors.
C. Comprehensive Automobile Insurance. Artist shall procure and maintain, and cause any subcontractors to procure, Comprehensive Automobile Liability insurance with single limit for bodily injury and property damage of $1,000,000.00, including coverage for owned, non-owned and hired automobiles, as applicable. Any deductible under such policy shall not exceed $1,000.00 for each occurrence.
D. Risk of Loss Insurance. Artist shall procure and maintain Risk of Loss Insurance in an amount not less than $80,0000. Artist shall take such measures as are reasonably necessary to protect the Art Work from loss or damage until Artist has completed the Art Work as specified herein and ownership is transferred to the City. The risk of loss or damage to the Art Work shall by borne by Artist prior to final acceptance of the Art Work by the City.
16.2 Miscellaneous Insurance Matters
All insurance policies obtained pursuant to Section 16 shall be endorsed to provide:
1) That thirty (30) days written notice of cancellation, non-renewal or reduction in coverage or limits shall be given to
City of Emeryville
Attn: Economic Development and Housing Manager
1333 Park Avenue
Emeryville, CA 94608-3517
; and
2) That such insurance is primary to any other insurance available to an additional insured with respect to claims arising out of this Agreement and that insurance applies separately to each insured against whom a claim is made or a suit is brought, but the inclusion of more than one insured shall not operate to increase the insurer's limits of liability.
All insurance policies required under this Agreement shall be issued by insurance companies reasonably acceptable to the City and shall be admitted to do business in the State of California.
The liability insurance policies required above shall be endorsed to name as an additional insured the City and its respective members, officers, directors, agents and employees.
Copies of all insurances shall be provided to the City, and complete copies of any insurance policies obtained pursuant to this Agreement shall be provided to the City if requested at any time.
City of Emeryville | Artist Agreement: Design, Fabrication, Transportation and Installation of Art Work REV 11/2021
17. INDEMNIFICATION AND GENERAL LIABILITY
Artist shall defend, indemnify and hold harmless the City and its officers, employees, agents, contractors, consultants and members of its boards, committees and commissions (an "Indemnified Person") harmless from and against any and all Losses arising directly or indirectly, in whole or in part, out of any injury to or death to any person or damage to or destruction of any property, from any cause whatsoever, relating to Artist’s performance, attempted performance or failure to perform under this Agreement or breach of this Agreement, whether such Loss is caused by the Artist or its agents, employees or contractors, or by any third party, but excluding liability caused by conduct of the City.
In the event any action or proceeding is brought against an Indemnified Person by reason of a claim arising out of any Loss covered by this indemnity, and upon written notice from such Indemnified Person, Artist shall at the Artist’s sole expense answer and otherwise defend such action or proceeding using counsel approved in writing by the Indemnified Person. Each Indemnified Person shall have the right to defend, adjust, settle or compromise any claim, obligation, debt, demand, suit or judgment covered by the indemnity set forth in this Section.
For purposes of this Section, the term "Losses" shall mean any and all claims, demands, losses, damages, liens, liabilities, injuries, deaths, penalties, fines, lawsuits and other proceedings, judgments and awards rendered therein, and costs and expenses, including, but not limited to, reasonable attorney's fees.
The Artist shall indemnify and hold the City harmless from all loss and liability, including attorney's fees, court costs, and all other litigation expenses for any infringement of the patent rights, copyright, trade secret or any other proprietary right or trademark and all other intellectual property claims of any third party persons arising from the Artist’s work under this Agreement.
The provisions of this Section 17 shall survive termination of this Agreement.
18. DEFAULT; REMEDIES; TERMINATION
18.1 For Cause
Failure or refusal of either party to perform or do any act herein required shall constitute a default. Either party may terminate this Agreement upon seven (7) days’ advance written notice to the other party in the event that the other party 1) materially breaches any duty, obligation, or service required pursuant to this Agreement and 2) fails to cure such breach within ten (10) days after written notice of such breach from the nonbreaching party.
In the event this Agreement is terminated by reason of the Artist’s default, the Artist shall immediately refund to the City the amount of any interim payment(s) made to the Artist.
City of Emeryville | Artist Agreement: Design, Fabrication, Transportation and Installation of Art Work REV 11/2021
18.2 For Public Convenience or Necessity
The City may terminate this Agreement at any time, in whole or in part, for any as a condition of receiving the fair and reasonable payment from the City, the Artist agrees to transfer title to all partially completed work, plans, notes, drawings, etc. to the City.
Upon termination by City pursuant to this subsection 18.2, City shall provide for payment to the Artist for services rendered and expenses incurred prior to the termination date. Artist shall receive payment only for expenses directly related to the current phase of the Project at the time of termination. Such payment shall not exceed the amount of the Interim Payment for the current phase of the Project at the time of termination.
18.3 Legal Remedies
Termination by the City pursuant to this Section does not waive any other legal remedies available to the City. The remedies described herein are in addition to all other remedies available to either party under the laws of the State of California should the other party fail to comply with the terms of this Agreement.
19. NOTICES
Submittals, payments, requests, notices and reports required under this Agreement shall be delivered as follows:
CITY ARTIST / CONTRACTOR
Amber Evans
Phone No: 510-596-4382
E-Mail : [email protected]
Guillaume Ollivier
Phone No: 818-519-2952
E-Mail : [email protected]
Any submittal, payment, request, notice, or report shall be deemed delivered five (5) business days after the party providing notice has mailed said notice to the other party by certified mail.
20. OWNERSHIP OF ART WORK; COPYRIGHT AND PATENTS;
DOCUMENTATION
20.1 Generally
Artist shall retain all rights under the Copyright Act of 1976, 17 U.S.C. 101 et seq., and all other rights in and to the Art Work except as otherwise set forth in this Agreement.
The City is not responsible for any third party infringement of the Artist's copyrights and Artist agrees to hold the City harmless for any such infringement.
20.2 Title and Risk of Loss
Title to the Art Work shall be held by the City. The Artist bears the risk of damage to or loss of the Art Work prior to Final Acceptance by City.
City of Emeryville | Artist Agreement: Design, Fabrication, Transportation and Installation of Art Work REV 11/2021
20.3 Display
The City has the right to display the project drawings and models, and is authorized to make and reproduce photographs and other two-dimensional reproductions of any drawings or models for publicity and program purposes.
20.4 Ownership of Documents and Models
Studies, drawings, designs, maquettes and models prepared and submitted to the City shall be returned to the Artist following Execution of the Art Work.
20.5 Reproduction Rights
City shall have a perpetual, nonexclusive license to make, and to authorize the making of photographs and other two-dimensional reproductions of the work for educational, public relations, arts promotional and other non-commercial purposes. For the purposes of this Agreement, the following are deemed to be reproductions for noncommercial purposes: reproduction in exhibition catalogues, books, slides, photographs, postcards, posters and calendars, and the City’s on-line homepage; in art magazines, art books, and art and news sections of newspapers; in general books and magazines not primarily devoted to art but of an educational, historical or critical nature; slides and film strips not intended for a mass audience, and television from stations operated for educational purposes or on programs for educational purposes from all stations.
20.6 Artistic Credit
The City hereby agrees to credit the Artist for the Art Work upon publication of any twodimensional reproductions of the work as stated in this Section.
21. SUBCONTRACTING
The Artist shall not subcontract this Agreement or any part of it unless such subcontracting is approved by the City in writing. Neither party shall, on the basis of this Agreement, contract on behalf of or in the name of the other party. An agreement made in violation of this provision shall confer no rights on any party and shall be null and void. In the event Artist desires to subcontract for any of the services under this Agreement, the Artist shall notify the City in writing and describe in detail the services to be provided by said subcontractor. Within ten (10) business days after receipt of Artist’s notice of intent to subcontract, City shall notify Artist in writing of its consent to subcontract, which consent shall not be unreasonably withheld. All subcontractors shall obtain insurance for the coverages and amounts described in Section 16. All insurance policies of subcontractors shall name the City as an additional insured.
The Artist's agreements with its subcontractors shall require that the subcontractors comply with each of the Artist’s legal obligations to the City as set forth in this Agreement.
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22. NO ASSIGNMENT OR TRANSFER
Artist shall consistently give its personal attention to the faithful execution of the scope of work of this Agreement. The Artist shall keep the work under its control and shall not assign or subcontract the whole or any part thereof, except as herein provided. All transactions with subcontractors shall be made through the Artist, and no subcontractor shall relieve the Artist of any of the Artist’s liability or obligations under this contract.
23. COMPLIANCE WITH LAWS
In the performance of this contract, Artist agrees to comply with applicable laws and regulations. Artist covenants and declares that it has obtained all diplomas, certificates, licenses, permits or the like required of Artist by any and all national, state, regional, county, city or local boards, agencies, commissions, committees or other regulatory bodies in order to perform the services contracted for under this Agreement. All work performed by Artist under this Agreement shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily expected of competent professionals. Artist shall not to discriminate on the basis of the fact or perception of a person's race, color, creed, religion, national origin, ancestry, age, sex, or disability.
24. CONFLICTS OF INTEREST
Artist covenants and declares that, other than this Agreement, it has no business holdings or agreements with any official, employee or other representative of the City.
For the duration of this Agreement, in the event the Artist or its principals, agents or employees acquire such a holding, interest or agreement within the City of Emeryville or with any official, employee or representative of the City in the future, the Artist will immediately notify the City of such holding, interest or agreement in writing.
25. BUSINESS TAX CERTIFICATE
Prior to commencement of the services to be provided hereunder, Artist shall apply to the City of Emeryville Finance Department for a business tax certificate, pay the applicable business license tax and maintain said business tax certificate during the term of this Agreement, as provided in Article 1 of Chapter 1 of Title 3 of the Emeryville Municipal Code.
26. LIVING WAGE
Artist shall comply with the requirements of the City’s Living Wage Ordinance set forth in Chapter 31 of Title 5 of the Emeryville Municipal Code, unless said Agreement is (i) between the City and another governmental entity, (ii) subject to a higher prevailing wage rate as defined in the California Labor Code, or (iii) subject to federal or state laws or regulations that would preclude the application of the City’s laws.
Compliance with the Living Wage Ordinance, if applicable, shall be required during the term of the Agreement for all employees of Artist who perform at least twenty-five percent (25%) of the work arising from this Agreement, unless said employees are
City of Emeryville | Artist Agreement: Design, Fabrication, Transportation and Installation of Art Work REV 11/2021
otherwise exempt from the application of the Living Wage Ordinance pursuant to Section 5-31.08. Artist shall promptly provide to the City documents and information verifying compliance with the requirements of the Living Wage Ordinance within ten (10) working days following a written request for such documentation and information from the City.
Failure to comply with the Living Wage Ordinance provides that a person claiming a violation thereof may bring an action against Artist for back pay, reinstatement and compensatory damages, as well as a penalty up to three times the amount of damages for a willful violation, plus reasonable attorney’s fees and costs. In addition, the City may terminate the Agreement and pursue any other remedies available to the City, including debarment, for violations of the Living Wage Ordinance.
Artist shall notify each of its affected employees with regards to wages that are required to be paid pursuant to this chapter. “Living Wage” means no less than $13.36 per hour (as of July 1, 2012, subject to increase annually on July 1st to reflect the twelve-month average increase to the Consumer Price Index for all urban consumers in the San Francisco-Oakland-San Jose Metropolitan Statistical Area for the preceding year from May to April, not to exceed three percent (3%) in any one year) including wages and health benefits. If Artist contributions for health benefits are not paid on an hourly basis, Artist must demonstrate to the City the hourly value of such benefits in order to receive credit for such payments to covered employees.
27. MISCELLANEOUS
27.1 Survival of Indemnities and Other Provisions
Termination of this Agreement shall not affect City's right to enforce any and all indemnities, representations or warranties given or made by Artist to City under this Agreement, nor shall it affect any other provision of this Agreement that expressly states it shall survive termination.
27.2 Force Majeure
The term "Force Majeure" with respect to a delay in performance shall mean any delay that is attributable to:
1) any strike, lockout or other labor or industrial disturbance (whether or not on the part of the employees of either party thereto), civil disturbance, future order claiming jurisdiction, act of the public enemy, war, riot, sabotage, blockade, embargo, inability to secure customary materials, supplies or labor through ordinary sources by reason of regulation or order of any government or regulatory body;
2) any changes in any applicable laws or the interpretation thereof; or
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3) any flood, washout, explosion, or any other cause beyond the reasonable control of the party from whom performance is required, or any of its contractors or other representatives. Any prevention, delay or stoppage in a party's performance hereunder due to Force Majeure shall excuse the performance of the party affected for a period of time equal to any such prevention, delay or stoppage; provided, however, that during the period of any such delay or stoppage, the party whose performance hereunder is excused shall take all reasonable steps necessary to minimize the length of such delay or stoppage.
27.3 Governing Law
This Agreement, regardless of where executed or performed, shall be governed by and construed in accordance with the laws of the State of California. Any legal action taken to enforce the terms of this Agreement shall be instituted in the Superior Court of the State of California, County of Alameda, or in the United States District Court, Northern District of California. The prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which the party may be entitled.
27.4 Successors and Assigns
The terms, covenants and conditions contained in this Agreement shall bind and inure to the benefit of Artist and City and, except as otherwise provided herein, their personal representatives and successors and assigns. There are no third-party beneficiaries to this Agreement.
27.5 Integrated Agreement; Modification
This Agreement contains all the agreements of the parties hereto relating to the subject matter addressed herein, and cannot be amended or modified except by a written agreement mutually executed between each of the parties hereto.
27.6 Non-waiver of Rights
The omission by either party at any time to enforce any default or right reserved to it, or to require performance of any of the terms, covenants, or provisions hereof by the other party at the time designated, shall not be a waiver of any such default or right to which the party is entitled, nor shall it in any way affect the right of the party to enforce such provisions thereafter.
27.7 Entire Agreement; Construction and Interpretation of Agreement The parties intend that this Agreement (including all of the attached exhibits, which are made a part of this Agreement) shall be the final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous written or oral agreements or understandings.
Should any provisions or portions of this Agreement be held unenforceable or invalid, the remaining provisions and portions shall be unaffected by such holdings.
City of Emeryville | Artist Agreement: Design, Fabrication, Transportation and Installation of Art Work REV 11/2021
The subject headings of the paragraphs of this Agreement are for convenience only and shall not affect the construction or interpretation of any of its provisions. The parties hereto agree to execute such further instruments and to take such further actions as may be reasonably required to carry out the intent of this Agreement.
This Agreement may be executed in two or more counterparts, each of which shall be deemed original, but all of which taken together shall constitute one and the same instrument.
If more than one person executes this Agreement on behalf of Artist, the obligations and liabilities of each such person shall be joint and several as to all obligations and liabilities of Artist hereunder.
For purposes of this Agreement, reasonable attorney's fees and legal costs and charges of City's City Attorney Office shall be based on fees regularly charged by private attorneys in the City with an equivalent level of expertise and practicing in law firms with approximately the same number of attorneys as the City Attorney's Office.
28. WAIVER OF AGREEMENT
The City’s failure to enforce any provision of this Agreement or the waiver in a particular instance shall not be construed as a general waiver of any future breach or default.
SIGNATURES ON FOLLOWING PAGE
City of Emeryville | Artist Agreement: Design, Fabrication, Transportation and Installation of Art Work REV 11/2021
29. SIGNATURE PAGE TO ARTIST AGREEMENT: DESIGN, FABRICATION,
TRANSPORTATION AND INSTALLATION OF ART WORK
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year indicated below, effective as of the day the City Manager executes the Agreement on behalf of the City.
Approved As To Form:
City Attorney
Dated: CITY OF EMERYVILLE
Christine S. Daniel, City Manager
Dated: PACIFIC MEDIA VENTURES LLC
(Signature)
Guillaume Ollivier
Attach:
W-9 Form
Attach:
Business License Certificate
ATTACHMENTS
Exhibit A: Artist Proposal
Exhibit B: Art Work Location Map
Exhibit C: Eligible Costs
Exhibit D: Artist Payment Schedule
7 (;+,%,7$
*8,//$80(2//,9,(5'%$3$&,),&0(',$9(1785(6//&
Exhibit A
8
9
10
11
12
13
Guillaume Ollivier
Prior Work
14
15
1456 63rd Street /6360 Hollis Street
Exhibit
B
1456 63rd Street /6360 Hollis Street
Exhibit C
Budget
Number Milestones Payment % Payment
Start Date: 08-01-2022
End Date: 08-15-2022
1 2
3 4
5 10%
40%
10%
$6,800
$6,800
$27,200
$20,400
$6,800 10% Signing Of Contract
Approval of Design
Approval of Scope
1 month before start date
1 week after completion 30%
Schedule
Emeryville Mural
1456 63rd Street /6360 Hollis St.
Artist/Painter: Guillaume Ollivier
Description of Project: Painting a mural at 1456 63rd St Will Rent a Boom lift and keep it on the corner of 63rd and Hollis for 7 Days.
Will Rent a Scissor lift for 2 weeks and store it on the corner of 63rd and Hollis.
PAYMENT SCHEDULE:
Project QUANTITY COSTS
TOTAL
Emeryville Mural
$68,000
$ 68,000
1
Exhibit D