1 AGREEMENT BETWEEN THE CITY OF SUNNYVALE
AND LINDA BRUNKER FOR PROFESSIONAL SERVICES
(DESIGN, FABRICATION, AND INSTALLATION OF PUBLIC ART AT CIVIC CENTER
AMPHITHEATER)
THIS AGREEMENT is made and entered into by the City of Sunnyvale, a chartered municipal corporation of the State of California (“CITY”), and Linda Brunker (“ARTIST”), located at 509 Burnham Road, Oak View, CA 93022, this 15th day of July 2022.
RECITALS
WHEREAS, CITY intends to integrate a SITE‐specific sculpture (“ARTWORK”) as part of the Civic Center Amphitheater, located at 546 W. Olive Avenue, in Sunnyvale, CA, and desires to engage an ARTIST to provide design, fabrication, delivery, lighting, and installation in connection with the ARTWORK (the “Services”); and
WHEREAS, ARTIST has represented that she has the necessary professional expert ise,
qualifications, and capability, and all necessary authority to provide the Services; and WHEREAS, ARTIST was selected from a pool of applicants, as the most qualified to design and fabricate the ARTWORK. The Art Commission and City Council approved the conceptual proposals by ARTIST on Jan. 19, 2022 and Feb. 01, 2022, respectively; and WHEREAS, CITY is commissioning the ARTWO
RK to fulfill a portion of the public art
requirements for City’s Civic Center Phase 1 project, consistent with the requirements of its Municipal Percent for Art Policy ; and
WHEREAS, in reliance on these representations, CITY desires to engage ARTIST to provide the Services as more fully described
in Exhibits A and A‐1 (“Scope of Services”), attached to and made a part of this Agreement; and
WHEREAS, CITY has provided certain specifications for the Civic Center Amphitheater, within which ARTIST has designed her ARTWORK to fit; and WHEREAS, the ARTWORK will be considered a permanent installation, intended to remain or remaining in a public place for one year or more after the comple tion by ARTIST, provided,
however, CITY may remove the ARTWORK in accordance with CITY’s Deaccession Policy or as described in this Agreement; and
WHEREAS, CITY may accession the completed ARTWORK consistent with the provisions of its Public Art Program into the CITY’S Collection of Public Art upon acceptance of the ARTWORK
and own all right, title and interest in the ARTWORK pursuant to the specific terms of this Agreement.
Attachment 5
2 NOW THEREFORE, in consideration of the recitals, covenants, terms and conditions in this Agreement, the parties agree as follows:
1. SERVICES BY ARTIST
ARTIST shall perform the Services as described in Exhibits A (“Scope of Services”) and A‐1, attached and incorporated by reference, in accordance with the terms and conditions contained in this Agreement. The perf
ormance of all Services shall be to the reasonable satisfaction of CITY.
ARTIST shall determine the method, details and means of performing the services.
2. DUTIES OF CITY
(a) CITY shall provide, at no cost to ARTIST, any non‐confidential documents or information available to CITY that is required by ARTIST for perform ance of her duties. (b) CITY shall coordinate with ARTIST to define and plan a community workshop to promote interest in public art that includes public participation to create an art project (the “Workshop”).
CITY shall provide outreach to community members for the event. (c) CITY shall provide and display a plaque, at CITY’s cost, no les s than eight inches by eight
inches, at minimum identifying the ARTIST, title, date and medium for the ARTWORK. Placement of the plaque shall be done in consultation with ARTIST.
3. TIME FOR PERFORMANCE
ARTIST shall promptly commence the Services, diligently prosecute all of the Services to
completion, and deliver the ARTWORK and agreed upon services to CITY according to the schedule specified in Exhibit A. Time is of the essence in performance of all obligations under this Agreement, and extensions of time may be granted by the Superintendent of Recreatio n Services only as provided in Section 28, Excuse From Performance, below.
4. COMPENSATION
CITY agrees to pay ARTIST as full compensation for the services rendered pursuant to this Agreement, the amounts set forth in Exhibit A. Total compensation, including Optional Services as described in Exhibit A, shall not exceed three hundred twenty‐one thousand dollars ($321,000.00).
ARTIST shall submit invoices to CITY for
services no more than monthly. All invoices, including
detailed backup, shall be sent to City of Sunnyvale, attention Accounts Payable, P.O. Box 3707, Attachment 5
3 Sunnyvale, CA 94088‐3707. Payment shall be made within twenty‐one working days upon completion of each task as provided in Exhibit A and upon receipt of an accurate, itemized invoice by CITY’s Accounts Payable Unit.
(a) CITY has no obligations regarding commissions or any agreement with galleries or agents with whom ARTIST may have contracted. CITY shall not be responsible for paying sales tax. (b) As used herein, “working days” means all days, except Saturday, Sunday and CITY holidays (New Year’s Day, New Year’s Eve, Martin Luther King Day, President’s Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving, Day after Thanksgiving, Christmas Eve and Christmas Day).
5. ARTIST WARRANTIES
(a) Warranty of Title. ARTIST represents and warrants that ARTIST is the sole author of the ARTWORK and
that ARTIST is the sole owner of any and all copyrights pertaining to the ARTWORK. ARTIST further represents that the ARTWORK is free and clear of any liens and that there are no outstanding disputes in
connection with property rights, intellectual property rights or any other rights in the ARTWORK or any parts of the ARTWORK. (b) Workmanship. ARTIST shall warrant and maintain the ARTWORK free from all faults or defects related to material or workmanship for a period of two years after the ARTW ORK is accepted by CITY.
(c) Originality. ARTIST warrants that the design of the ARTWORK is an edition of one, and that neither ARTIST nor ARTIST’S agents will execute or authorize another to execute another work of the same or substantially similar image, design, dimensions and materials as the ARTWORK.
(d) Public Safety. ARTIST represents and warrants that the ARTWORK will not pose a danger to the safety of persons or property in
view of the possibility of misuse, if such misuse is in a manner that was reasonably foreseeable at any time during the term of this Agreem ent. ARTIST agrees to cooperate with CITY in making or permitting adjustments to the ARTWORK if necessary to eliminate hazards that become apparent after the ARTWORK is accepted by CITY. (e) Acceptable Standard of Display. ARTIST represents and warrants that:
(1) General routine cleaning and repai r of the ARTWORK and any associated working parts and/or equipment will maintain the ARTWORK within an acceptable standard of public display;
Attachment 5
4 (2) Foreseeable exposure to the elements and general wear and tear will cause the ARTWORK to experience only minor repairable damages and will not cause the ARTWORK to fall below an acceptable standard of public display; and (3) With general routine cleaning and repair consistent with instructions provided to CITY by ARTIST, and within the context of foreseeable exposure to the elements and general wear and tear, the ARTWORK will not ex
perience irreparable conditions that fall
below an acceptable standard of public display, including but not limited to mold, rust that is not part of the surface patina, fracturing, staining, chipping, tearing, abrading and peeling.
(f) Physical Warranty. ARTIST shall provide a two‐year warranty on the ARTWORK and advise
on maintenance at no cost to CITY as described in this Agreement. For each ARTWORK, the warranty shall begin on the date of the CITY’S acceptance of the ARTWORK, such acceptance not to be unreasonably withheld, conditioned or del
ayed.
(g) Errors/Omissions. ARTIST shall correct, at no cost to CITY, any and all defects in the work product submitted to CITY, provided CITY gives not less than 30 days’ prior written notice thereof to ARTIST. If ARTIST has prepared plans and specifications or other design documents to construct and install the ARTWORK, ARTIST sh
all be obligated to correct any and all technical errors or omissions on such plans. This obligation shall survive termination of the Agreement for a period of one year.
6. TRANSFER OF TITLE TO ARTWORK
Title to the ARTWORK shall remain in ARTIST’S name until CITY has accepted the ARTWORK as completed and it is installed to the satisfaction of CITY. Transfer of title shall be self‐executing upon CITY’s acceptance. ARTIST shall bear
all risk of loss of the ARTWORK until title has been
transferred to CITY, and CITY agrees to inspect ARTWORK and accept ARTWORK within thirty (30) days of ARTIST’S notification of completion, unless the provisions of Section 9(a) or (b) apply.
7. ACCEPTANCE OF WORK
CITY agr
ees to accept the completed ARTWORK unless:
(a) The ARTWORK was not completed in substantial conformance with the approved final design, or
(b) The ARTWORK as completed or an
y portion thereof does not conform to a reasonable
standard of artistic or technical quality. CITY shall provide its reasons for this finding to ARTIST in writing no later than ten (10) days after ARTIST has tendered the ARTWORK to the CITY for CITY’s acceptance. Where the ARTIST disputes this finding, the dispute shall be submitted to Arts Attachment 5
5 Arbitration and Mediation Services (“A.A.M.S.”), of California Lawyers for the Arts, San Francisco, CA for resolution, and any decision by A.A.M.S. shall be binding upon CITY and ARTIST and neither shall have any further recourse or cause of action regarding the matters so resolved. (c) Upon the CITY’s refusal to accept the ARTWORK for the reasons stated in subparagraphs (a) or (b), CITY, in addition to other rights or remedies available to the CITY under th e Agreement
or applicable law, shall have the right to: (1) request that ARTIST correct the deficiencies in the ARTWORK within a reasonable time, or (2) terminate this Agreement and recover all sums previously paid to ARTIST.
(d) No paym
ents to ARTIST shall be deemed as a waiver of CITY’s right to refuse to accept the ARTWORK.
8. CLEANING AND MAINTENANCE OF ARTWORK
(a) ARTIST shall design the ARTWORK so that it is durable, taking into consideration that the SITE is an unsecured public space, and that the ARTWORK will be exp osed to elements, including
but not limited to, weather, temperature variation, and movement of people, vehicles and equipment. ARTIST shall design and construct the ARTWORK so that maintenance requirements are reasonable in terms of time and expense.
(b) As a condition of and prior to acceptance of the ARTWORK, ARTIST shall supply CITY with written maintenance instructions for proper care
of the ARTWORK, including standards for
general routine cleaning and repair of the ARTWORK and any associated working parts and/or equipment.
(c) Following acceptance of the work, CITY shall be responsible for the proper cleaning, maintenance and protection of the ARTWORK. Although CITY strives to maintain its public art collection in
good repair and condition, CITY is not required by this Agreement to maintain the ARTWORK to any particular standard.
(d) ARTIST will supply during her lifetime at no charge; four (4) hours of advice by telephone each calendar year as to problems arising in
relation to maintenance of the ARTWORK. All repairs
and restorations that are made during the lifetime of ARTIST shall be performed in consultation with ARTIST as provided in Section 11, below.
(e) CITY shall have the right to determine, after consultation with ARTIST, 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. CITY shall make a reasonable effort to consult with ARTIST and a professional conservator in all matters concerning major repairs and restoration of the work. In the event that CITY makes repairs or restoration not approved by ARTIST, ARTIST shall have the right, at ARTIST’s Attachment 5
6 sole option, to have ARTIST’s association with ARTWORK severed and shall have no further maintenance or warranty obligations under this Section 17 of this Agreement to CITY. (f) 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 conservati
on of ARTWORK and in reasonable accordance with the maintenance instructions provided to CITY by ARTIST.
9. ARTIST’S MORAL RIGHTS; WAIVER OF VARA AND CAPA RIGHTS (a) The CITY, having expended considerable public funds to commission the ARTWORK, and pursuant to its responsibilities to maintain the ARTWORK owned by CITY, intends to make its best efforts to display the ARTW
ORK at the SITE, as originally created by ARTIST and to maintain the ARTWORK in good condition. However, CITY must preserve complete flexibility to operate and manage CITY property. Therefore, subject to CITY’s obligation to make good faith efforts to consult with ARTIST as set forth in subsection (c), below, ARTIST agrees that CITY, in connection with its powe
r and duty to operate and manage CITY property in the public’s interest, shall have the absolute right to alter, repair, modify, remove, relocate, sell, dispose of, or destroy (collectively, “MODIFY”) the ARTWORK in CITY’S sole judgment. For ex ample, CITY may MODIFY
the ARTWORK to eliminate hazards, to comply with the ADA, to otherwise aid CITY in the management of its property and affairs, or through neglect or accident. CITY also has the right to install the ARTWORK in an alternate location that the CITY chooses in its sole discretion . If CITY chooses to destroy artwork, ARTIST will be given the option of salvaging the ARTWORK at no cost to CITY.
(b) ARTIST waives any and all claims, arising at any time and under any circumstances, against CITY, its officers, agents, employees, successors and assigns, arising under the federal Visual Artists Rights Act (17 U.S.C. §§106A and 113(d)), the California Art Preservation Act (Cal. Civil Code §§987 et seq.), and any other local, state, federal or international laws that convey rights of the same nature as those conveyed under 17 U.S.C. §106A, Cal. Civil Code §§987 et seq., or any other type of moral right
protecting the integrity of works of art. If the ARTWORK is incorporated into a SITE such that the ARTWORK cannot be removed from the SITE without MODIFYING the ARTWORK, ARTIST waives any and all such claims against any future owners of the SITE, and its agents, officers and
employees, for MODIFYING the ARTWORK.
(c) Where time permits, prior to MODIFYING the ARTWORK, CITY shall make reasonable good faith efforts to notify and consult with ARTIST, at the last phone number or address provided by ARTIST to the CITY, and to come to a mutually agreeable plan for disposition of the ARTWORK.
Such consultation
shall be without charge by ARTIST unless otherwise specifically agreed in writing. If the ARTWORK is MODIFIED and CITY intends to maintain the ARTWORK on display, CITY shall make a reasonable good faith effort to engage ARTIST in the restoration of the ARTWORK and to compen
sate ARTIST for ARTIST’S time and efforts at fair market value, which Attachment 5
7 may be the subject of a future Agreement between ARTIST and CITY. However, CITY has no obligation under this Agreement to restore the ARTWORK or to compensate ARTIST for any restoration work. If ARTIST fails or refuses to negotiate with CITY in good faith with respect to any restoration, CITY may contract with any other qualified art conservator or artist for such restoration
.
(d) If CITY alters the ARTWORK without ARTIST’S consent in a manner that is prejudicial to ARTIST’S reputation, ARTIST may disclaim authorship of the ARTWORK.
10. QUALIFICATIONS/STANDARD OF CARE.
All of the Services shall be performed by ARTIST or under ARTIST’s supervision. ARTIST represents that she possesses the professional and technical personnel necessary to perform the Services required by this Agreem
ent and that the personnel have sufficient skill and experience to perform the Services assigned to them. ARTIST represents that she, her employees and subcontractors, if permitted, have and shall maintain during the term of this Agreement all professional licenses, qualifications, insurance and approvals of whatever nature tha t are legally required to perform
the Services. All of the Services to be furnished by ARTIST under this agreement shall meet the professional standard and quality that prevail among professionals in the same discipline and of similar knowledge and skill engaged in related work throughout California under the same or similar circumstances.
11. PERFORMANCE OF AGREEM
ENT IN EVENT OF DEATH OR DISABILITY OF ARTIST
(a) If ARTIST is unable to personally perform her obligation under this Agreement due to death or disability prior to the completion and installation of the ARTWORK, this Agreement may be termin
ated at the sole discretion of CITY, and, in such event, all completed work, materials, and supplies related to the ARTWORK shall be delivered to CITY and shall become CITY's sole property.
(b) ARTIST, or her estate, as the case may be, shall refund to CITY whatever amount CITY paid to ARTIST pursuant to Paragraph 4(a) of this Agreement, less the total of:
(1) All costs and expenses incurred by AR
TIST in connection with the performance of
this Agreement prior to the time of her death or disability; such costs and expenses shall be supported by adequate documentary evidence before they can be credited against any refund;
(2) Five hundred dollars ($500.00) per month for the nearest number of whole months which
have elapsed from the execution of this Agreement at the time of such death or disability.
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8 (c) In the event of such termination, CITY may take such action as may appear to it appropriate under the circumstances, including but not limited to commissioning another artist to complete the ARTWORK. In the event that CITY completes the ARTWORK or arranges to have it completed, ARTIST’S name shall be publicly displayed at, on or near the ARTWORK, unless ARTIST and
CITY mutually agree otherwise.
12. CONFLICT OF INTEREST
ARTIST shall avoid all conflicts of interest, or appearance of conflict, in performing the services and agrees to immediately notify CITY of any facts that may give rise to a conflict of interest.
ARTIST is aware of the prohibition that no officer of CITY shall have any interest, direct or indirect, in
this Agreement or in the proceeds thereof. During the term of this Agreement ARTIST shall not accept employment or an obligation which is inconsistent or incompatible with ARTIST’S obligations under this Agreement.
13. CONFIDENTIAL INFORMATION
ARTIST shall maintain in confidence and
at no time use, except to the extent required to perform her obligations hereunder, any and all proprietary or confidential information of CITY of which ARTIST may become aware in the performance of her services.
14. COMPLIANCE WITH LAWS
(a) Nondiscrimination. ARTIST shall not discriminate against, or engage in the harassment of, any CITY employee or volunteer or any employee of ARTIST or applicant for employment because
of an individual’s race, religion, color, sex, gender identity, sexual orientation (including heterosexuality, homosexuality and bisexuality), ethnic or national origin, ancestry, citizenship status, uniformed service member status, marital status, family relationship, pregnancy, age, cancer or HIV/AIDS‐related medical condition, genetic characteristics, and physical or mental
disability (whether perceived or actual). This prohibition shall apply to all of ARTIST’s employment practices and to all of ARTIST’s activities as a provider of services to the CITY. (b) Compliance with Other Laws. ARTIST shall comply with all federal, state and city laws,
statutes, ordinances, rules and regulations, and the orders and decrees of any courts, or administrative bodies or tribunals in any manner affecting the performance of this Agreement.
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9 15. PREVAILING WAGES AND DIR REGISTRATION FOR PUBLIC WORKS CONTRACTS. (a) ARTIST is required to pay general prevailing wages as defined in Subchapter 3, Title 8 of the California Code of Regulations and Section 16000 et seq. and Section 1773.1 of the California Labor Code. Pursuant to the provisions of Section 1773 of the Labor Code of the State of California, the City Council has obtained the general prevailing rate of per diem wages and the
general rate for holiday and overtime work in this locality for each craft, classification, or type of worker needed to execute the contract for this Project from the Director of the Department of Industrial Relations (“DIR”). A copy of the prevailing wage rates may be reviewed in the office of the Director of Public Wo
rks, City of Sunnyvale, 456 West Olive Avenue, Sunnyvale, California.
Wage rates can also be obtained through the California Department of Industrial Relations website at: http://www.dir.ca.gov/OPRL/DPreWageDetermination.htm
(b) ARTIST shall provide a copy of prevailing wage rates to any staff or subcontractor hired, and shall pay the adopted prevailing wage rates as a minimum. ARTIST shall comply with the provisions of all sections, including, but not limited to, Sections 1775, 1776, 1777.5, 1782, 1810, and 1813, of the Labor Code pertaining to prevailing wages. (c) It shall be mandatory upon ARTIST and upon any subcontractor to pay not less than the specified rates to all laborers, workers, and
mechanics employed in the execution of the Contract.
It is further expressly stipulated that ARTIST shall, as a penalty to Owner, forfeit two hundred dollars ($200.00) for each calendar day, or portion thereof, for each laborer, worker, or mechani c
paid less than the stipulated prevailing rates for any work done under this Contract by ARTIST or by any subcontractor; and ARTIST agrees to comply with all provisions of Section 1775 of the Labor Code. In case it becomes necessary for
ARTIST or any subcontractor to employ on the
project under this Contract any person in a trade or occupation (except executives, supervisory, administrative, clerical, or other non‐manual workers as such) for which no minimum wage rate is herein specified, ARTIST shall immediately notify CITY, which will promptly thereafter determine the prevailing rate for such additional trade or occupation and shall fu rnish ARTIST
with the minimum rate based thereon. The minimum rate thus furnished shall be applicable as a minimum for such trade or occupation from the time of the initial employment of the person affected and during the continuance of such employment.
16. INDEPENDENT CONTRACTOR
ARTIST is acting as independent contractor in furnishing the services or materials and performing
the work required by this Agreement and is not an agent, servant or employee of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the r elationship of employer and employee between CITY and ARTIST. ARTIST is responsible for paying all required state and federal taxes.
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10 17. HOLD HARMLESS/INDEMNIFICATION
A. Artist shall hold harmless, defend, and indemnify the City and its officers, agents, officials, employees, and volunteers against all claims, losses, damages and/or expenses including attorney fees, costs of litigation and judgement, directly or indirectly arising from or claiming to arise from any injury to any person(s), damage to any property, or any economic loss, arising out of, in whole or in
part, (1) by any negligent act or omission of the Artist; and/or (2) the Artist’s performance or non‐performance of its duties under this contract/agreement; and/or (3) any defect in any services provided by the Artist. This duty to defend, indemnify, and hold harmless shall include the Artist’s responsibility for any an
d all foregoing claims, even if such claims are
groundless, false, and/or fraudulent and any and all equitable relief, damages, costs and attorney fees except those caused by the sole negligence, recklessness or willful misconduct of the City.
B. This obligation shall be continuing in nature and extend beyond the term of this contra
ct/agreement. The doctrine of equitable tolling extends the time within which an action for breach of this provision may be filed.
C. Artist and City as used in this section, include the employees, agents, sub‐contractors, and any other pe
rson who are directly employed by or otherwise legally responsible, respectively to each party.
18. INSURANCE
ARTIST shall take out and maintain during the life of this Agreement, policies of insurance as specified in Exhibit C attached and incorporated by reference and shall provide all certificates or endorsements as specified in Exhibit C.
19. COPYRIGHT OWNERSHI
P
ARTIST retains all rights under the Copyright Act of 1976, USC101, as the sole author of the ARTWORK for the duration of the copyright.
20. REPRODUCTION RIGHTS
(a) ARTIST shall not make any additional exact duplicate reproductions of the final ARTWORK, nor shall ARTIST grant permission to others to do so except with the written permission of the
CITY. However, nothing shall prevent ARTIST from creating works in the ARTIST’S manner and style of artistic expression.
(b) ARTIST grants CITY license to make two‐dimensional reproductions of the ARTWORK for non‐commercial purposes, including, but not limited to, reproductions used in brochures, media Attachment 5
11 publicity, and exhibition catalogues or other similar publication provided that these reproductions are exercised in a tasteful and professional manner. All reproductions by the CITY shall contain a credit to the ARTIST and a copyright notice. (c) CITY grants ARTIST license to make two‐dimensional reproductions of the ARTWORK for non‐commercial purposes, including, but not limited to, reproductions used in brochures, media publicity,
and exhibition catalogues, ARTIST’S portfolio or other similar publication provided that these reproductions are exercised in a tasteful and professional manner. All reproductions by the ARTIST shall contain a credit to the CITY as the owner of the ARTWORK. (d) If the CITY wishes to make reproductions of the ARTWORK for commercial purposes, including, but not limited to, tee shirts, post cards and posters, the parties shall execute a
separate agreement to address the terms.
21. CITY REPRESENTATIVE
Damon Sparacino, Superintendent of Recreation Services as the CITY Manager's authorized representative, shall represent CITY in all matters pertaining to the se rvices to be rendered under
this Agreement. All requirements of CITY pertaining to the services and materials to be rendered under this Agreement shall be coordinated through the CITY representative.
22. ARTIST’S REPRESENTATIVE
Linda Brunker shall represent ARTIST in all matters pertaining to the services and materials to be rendered under this Agreement. All requirements of ARTIST pertaining to the services or materials to be rendered under this Agreement shall be coordinated through the ARTIST.
23. NOTICES
All
notices required by this Agreement shall be in writing and shall be personally delivered, sent by first class mail with postage prepaid, or sent by commer cial courier addressed as follows:
To CITY: Damon Sparacino
Superintendent of Recreation Services
Department of Library and Recreation Services
CITY OF SUNNYVALE
P.O. Box 3707
Sunnyvale, CA 94088‐3707
Attachment 5
12 To ARTIST: Linda Brunker
509 Burnham Road
Oak View, CA 93022
Nothing in this provision shall be construed to prohibit communication by more expedient means, such as by email or fax, to accomplish timely communication. Each party may change the address by written notice in accordance with this paragraph. Notices delivered personally shall be deemed communicated as of actu
al receipt; mailed notices shall be deemed communicated as of three business days after mailing.
24. NOTICE OF CHANGE OF ADDRESS
ARTIST agrees to notify CITY in writing promptly of any changes of address. A failure to do so shall be deemed a waiver of ARTIST’S rights under this Agreement.
25. NO ASSIGNMENT OR SUBCONTRACTING
(a) The exp
ertise and experience of ARTIST are material considerations for this Agreement.
ARTIST shall not sublet or assign any right or obligation pursuant to this Agreement without the prior and express written consent of the CITY. Any attempted or purported assignment without CITY’s written consent shall be void and of no effect. Con sent to one assignment will not be
deemed to be consent to any subsequent assignment.
(b) ARTIST shall not subcontract any portion of the work to be performed under this Agreement without the prior and express written consent of the CITY. ARTIST shall be responsible for directing the work of any subcontractors and for
any compensation due to subcontractors.
CITY assumes no responsibility whatsoever concerning compensation of subcontractors. ARTIST shall be fully responsible to CITY for all acts and omissions of ARTIST’s subcontractors in connection with their performance of the Services. ARTIST shall change or add subcontractors only with
the prior approval of CITY.
26. EXCUSE FROM PERFORMANCE
In the event ARTIST’S performance of any of their obligations or undertakings under this Agreement is delayed, interrupted, or prevented by an act of God, unforeseen conditions, unusually severe weather, governme ntal order or occurrences that are beyond the control of either party to this Agreement, ARTIST shall be excused from any further performance for whatever period of time after the occurrence necessary to remedy the effects of that occurrence.
ARTIST shall notify CITY in writing within ten (10) days after any occurrence described in this Attachment 5
13 section that may delay ARTIST’S performance. The Superintendent of Recreation Services shall amend the schedule when, in his determination, ARTIST’S performance has been excused, and the delay or interruption has resulted in a material change in the time for performance.
27. TERMINATION
(a) If ARTIST defaults in the performance of this Agreement or materially breaches any of its provisions, CITY at its option may ter
minate this Agreement by giving written notice to ARTIST. (b) If CITY fails to pay ARTIST, ARTIST at her option may terminate this Agreement if the failure is not remedied by CITY within thirty (30) days from the date payment is due. ARTIST shall present CITY with any work product completed at that point in time.
(c) Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY also shall have the right to terminate this Agreement for any reason by giving ten (10) days' written notice to ART
IST. In the event of such termination without cause, ARTIST shall be compensated in proportion to the percentage of services performed or materials furnished (in relation to the total which would have been performed or furnished), through the date of receipt of notification from CITY to terminate. ARTIST shall present CITY with any work product completed at that point in time.
(d) No paym
ent, partial payment, acceptance, or partial acceptance by CITY or acceptance of any payment or partial payment by ARTIST will operate as a waiver on the part of CITY or ARTIST of any of their rights under this Agreement.
28. ENTIRE AGREEMENT; AMENDMENT
This writing constitutes the entire Agreement between the parties relating to the services to be performed or materials to be furnished hereunder. No modification of this Agreement shall be effective unless and until such modification is evidenced by writing, signed by all parties.
29. GOVERNING LAW, JURISDICTION AND VENUE
This Agreement shall be governed by and construed in
accordance with the laws of the State of
California, excluding its conflict of law principles. Proper venue for legal actions will be exclusively vested in a state court in the County of Santa Clara. The parties agree that subject matter and personal jurisdiction are proper in state court in the County of Santa Cla ra, and waive all venue
objections.
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14 30. ATTORNEY’S FEES
In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred.
31. MISCELLANEOUS
Time shall be of the essence in this Agreement. Failure on the part of either party to enforce any provision of this Agreement shall not be construed as a waiver of the right to compel enforcement of such provision or any othe
r provision.
IN WITNESS WHEREOF, the parties have executed this Agreement.
ATTEST:
CITY CLERK CITY OF SUNNYVALE (“CITY”)
__________________________________ ______________________________ Deputy City Clerk City Manager
APPROVED AS TO FORM: ARTIST
__________________________________ ______________________________ City Attorney
Linda Brunker
EXHIBITS:
A. Scope of Services
A‐1. Conceptual Designs approved by Arts Commission and City Council C. Insurance Requirements
Attachment 5
15 EXHIBIT A SCOPE OF SERVICES
Background
The purpose of this agreement is to define the scope of work for the design, fabrication, delivery and installation, including lighting, of an original ARTWORK designed by ARTIST Linda Brunker to be integrated into the
Civic Center Amphitheater, located at 465 W. Olive Ave., in Sunnyvale, California.
The Amphitheater site is
part of the Civic Center Modernization project, which is currently underway and includes the following new construction:
• New 119,874 square‐feet, four‐story, Net Zero Energy and Certified LEED Platinum City Hall
• Renovated Public Safety Headquarters (i.e., lobby, entry and tenant improvements)
• New two‐story, 15,002 square‐feet Emergency Operations Center • Approximately 6 acres of open space
• Pedestrian improvements along Olive Avenue
• Frontage improvements along Mathilda Avenue from W. Olive Avenue to El Camino Real including a new multiuse pathway and walkways for public use • Civic plaza
• Outdoor amphitheater
In response to a Request for Qualifications, ARTIST created a conceptual design for the original ARTWORK approved by the Arts Commission on January 19, 2002 and the City Council on February 1, 2022. ARTIST proposed a series of Corten steel, cut‐out figures holding hands in unity.
The figures will be representative of a range of diverse cultures, genders, age groups and abilities, similar to the multiplicity of Sunnyvale’s residential and business communities. Text, short sayings, poetry, words of wisdom and detailed motifs will be weaved throughout the figures and gold leaf will be applied to highlight these details.
The figures will be installed in the greenspace behind the amphitheater seating and can be configured in one of two ways:
• In a 25‐ to 30‐feet diameter circle, with figures ranging up to 12‐feet tall (visitors will be able to enter the circle under the raised arms of the figures). • In an approximately 25‐feet arc parallel to the arc of the curved seating.
Final placement of ARTWORK will be determined in collaboration with the project team including the project designer, project manager, Superintendent of Recreation, or his designee, and architect.
Attachment 5
16 Maintenance of the sculptures is expected to be minimal, as Corten steel is meant to withstand the elements and does not require regular cleaning, and a detailed maintenance plan will be developed by ARTIST for the City. The approved artist and conceptual design is represented Exhibit A‐1.
It is mutually understood by the CITY and ARTIST that minor refinements to the conceptual design and engineering may take place. Shou
ld the initial conceptual design as approved by the Art Commission and City Council shift significantly, CITY staff will report back to the Art Commission and City Council on those changes.
Summary of ARTWORK
ARTIST will further develop the conceptual proposals re presented in Exhibit A‐1, including
lighting of the installed ARTWORK; and fabricate, deliver, and coordinate installation, , of the finished ARTWORK with the CITY as detailed below. References to “ARTWORK” in this scope of services shall include any and all lighting, electrical, and engineering requirements associated with and
necessary to complete and install such artwork. The images in Exhibit A‐1 are for reference only. To view more details of the approved ARTWORK, please see the presentation to the Art Commission on January 19, 2022.
ARTIST Requirements for the ARTWORK
(1) ARTIST shall furnish and provide at her cost and expense all labor, supplies, materials, lighting, equipment and shipment thereof related to completion of the ARTWORK . ARTIST will
provide all necessary foundations, anchoring hardware, lighting, and finishes necessary for the installation of the ARTWORK as approved by the CITY. All services related to the ARTWORK shall be performed in a professional manner and in strict compliance with all terms and conditions in the Agreem
ent.
(2) Delivery of ARTWORK and materials necessary for installation of the Artwork will be coordinated with the CITY on mutually agreeable delivery dates to the project SITE. ARTIST will supply any necessary delivery details to the CITY in advance rega rding delivery vehicles, crates,
and staging necessary for the installation. For the ARTWORK, ARTIST shall be responsible for all direct shipping costs, including packing materials, insurance, and use of any shipping vendors.
CITY agrees that additional costs imposed on ARTIST by CITY’S delay will be reasonably compensated to ARTIST.
(3) Installation dates will be determined by mutual agreement between the CITY and the ARTIST. The ARTIS
T or ARTIST’S representative shall be present to oversee the installation. The ARTIST shall provide to the CITY in advance information regarding equipment involved for installation, numbers of contractors involved to complete the installation, electrical or Attachment 5
17 equipment needs, and any additional information required by the CITY. ARTIST shall be responsible for contracting with installation contractors. All installation contractors must be pre‐ approved by CITY and must comply with all requirements for subcontractors in this Agreement, including but not limited to, insurance and Prevailing Wage requirements. (4) ARTIST shall provide CITY with the names of all subcontractors along with a co py of the agreement between the ARTIST and each subcontractor.
(5) In designing and fabricating the ARTWORK, ARTIST shall take all reasonable measures to protect or preserve the integrity of the ARTWORK including but not limited to application of a protective sealant, patina and/or ant
i‐graffiti coating.
(6) ARTIST shall cooperate with CITY and provide any documentation reasonably requested in order to assist CITY in preparing ARTIST’S payments in accordance to the terms set forth in Paragraph 4(a).
ARTWORK Services, Schedule, and Compensation
(1) Task 1: Commencement of Final Design Development
(a) Services
(1) Upon execution of this Agreement, and written notice from CITY to proceed, ARTIST shall commence the final design of the ARTWORK. Final design shall include a lighting design and plan for the ARTWORK, and ARTIST shall be responsible for providing all materials and details necessary for lighting for the artwork, including, but not limited to permits, conduit, engineering and light fixtures.
(2) The ARTWOR
K shall substantially conform to the conceptual design proposal attached in Exhibit A‐1 and any requested modifications approved and directed by the Sunnyvale City Council at their February 01, 2022 meeting. (3) ARTIST shall coordinate with CITY’S project manager to visit the project SITE to discuss and agree
on final locations for the ARTWORK. Artist shall be responsible for preparing and submitting engineering plans for footings and installation of the ARTWORK, as well as electrical plans for lighting associated with the ARTWORK, and shall be responsible for all costs related to plans, permits, and materials for the ARTWORK.
(4) ARTIST shall coordinate with CITY to define and plan a community workshop to promote interest in public art that includes public participation to Attachment 5
18 create an art project (the “Workshop”). ARTIST shall oversee community workshop and provide, at her cost, any necessary materials for the workshop. (5) ARTIST shall submit to CITY for approval a final design, including a final SITE plan for the ARTWORK locations reflecting footing, lighting and electrical plans, and a detailed plan for the Workshop within thirty (30) working days of execution of this agreement.
(b) Compensation for Commencing Final Design Development (1) CITY shall pay ARTIST seventy‐seven thou
sand dollars ($77,000) within twenty‐one
(21) working days of final execution (complete signatures) of this Agreement;
(2) Task 2: CITY Approval of Final Design.
(a) Services
(1) Within a reasonable period after ARTIST submits the final design to CITY, CITY will review and provide written approval of the final design. (2) After City’s written approval, ARTIST may not change the approved SITE or the approved final design of the ARTWORK or lighting without written approval of the Superintendent of Recreatio
n Services or his designee.
(b) Compensation for Services‐ CITY Approval of Final Design (1) CITY shall pay ARTIST seventy‐seven thousand dollars ($77,000) within twenty‐one (21) working days of CITY’s written acceptance of final design for the ARTWORK.
(3) Task 3: Fabrication of ARTWORK and Community Workshop (a) Services
(1) Following CITY’s written approval of the final design, ARTIST shall commence the execution of the ARTWORK in accordance with the Final Design approved by CITY.
(2) Artist shall conduct the community Workshop at a date and time mutually agreed between City and Artist.
(b) Compensation for Fabrication and Community Workshop (1) CITY shall pay ARTIST seventy‐seven
thousand dollars ($77,000) within twenty‐
one (21) working days of City’s verification of ARTIST’s completion of fabrication of the Artwork and completion of the Workshop, whichever occurs later.
Attachment 5
19 (4) Task 4: Installation of ARTWORK
(a) Services
(1) ARTIST shall coordinate installation of ARTWORK with CITY, engineers, architects and contractors at her expense. ARTIST shall secure all required licenses permits and similar legal authorizations at the ARTIST’S expense as may be necessary for the installation of the ARTWORK at the SITE. (2) ARTIST shall be responsible for installation of the ARTWORK and all costs associated with placement and anc
horing of the ARTWORK including required
foundations, mounts and hardware, and electrical conduit, including lighting fixtures. ARTIST must consult with the Superintendent of Recreation Services or his designee, CITY engineers, architects, contractors, and the Construction Project Manager prior to and during installation.
(3) ARTIST shall be responsible for installation of the ARTWORK lighting and all costs associated with placement of electrical conduit, including lighting fixtures.
ARTIST must consult with the Superintendent of Recreation Services or his designee, CITY engineers, contractors, and the Construction Project Manager prior to and during installation of the lighting.
(4) Fabrication, delivery and installation of ARTWORK must be completed between January 2 and March 1, 2023, unless
otherwise notified in writing by
CITY. ARTIST will assume all costs associated with transportation and installation of completed ARTWORK. ARTIST will be required to inspect SITE, at her cost, prior to the transportation and installation of the ARTWORK and shall notify the CITY of any adverse SITE conditions that will impact the installation of the ARTWORK.
Failure to do so by the ARTIST shall be deemed as an acceptance of the SITE conditions.
(5) Field m
eetings and installation drawings shall be required in order to prepare for final installation. Installation drawings shall ta ke into account all
municipal and state building codes and will also be reviewed by CITY’s Project Manager in order to prepare for final installation.
(6) ARTIST shall be present to supervise the installation of the ARTWORK. (7) Installation shall be required to meet all municipal and state building codes and obtain ins
pection approval from CITY’s Project Manager. If installation does not meet inspection criteria, ARTIST at her own cost shall continue working until such time as approval is obtained from CITY’s Project Manager. Final placement Attachment 5
20 of the ARTWORK must be approved by the Project Manager and Superintendent of Recreation Services, or his designee, prior to installation. (b) Compensation for Installation of the Artwork
(1) CITY shall pay ARTIST fifty thousand dollars ($50,000) within twenty‐ one (21) working days of completion of installation of the ARTWORK.
(5) Task 5: CITY’S Final Acceptance of ARTWORK
(a) Service
(1) Following installation of the ARTWORK, CITY shall accept the ARTWORK as provided in this Agreement.
(2) ARTIST shall provide CITY, engineers, architects and contractors with all drawings, plans, photos, and maintenance and other requirements set forth in this Agreement, prior to City’s acceptance of Artwork.
(b) Compensation for Final Acceptance of ARTWORK
(1) CITY shall pay ARTIST thirty‐five thousand dollars ($35,000.00) within sixty (60) days of acceptance by CITY’s Construction Project Manager and the
Superintendent of Recreation Services or his designee as provided in this Agreement.
(6) Optional Task 6: Storage of Art
(a) Service
(1) In the event that Fair Oaks Park is not ready for art installation as expected by March 1, 2023, additional storage may be required. CITY and ARTIST shall meet to discuss storage requirements and agree in writing on terms and compensation for such storage, estimated at an additional $500 per month after March 02, 2023.
Should additional storage be required, funds for Additional Services will be made available fo
r this purpose in accordance with the terms of this section. Payment for additional services is subject to all requirements and restrictions in this Agreement.
Attachment 5
21 (b) Compensation for Storage of Art
(1) If additional storage is required, CITY’s Project Manager may authorize up to five hundred dollars per month not to exceed a total of five thousand dollars ($5,000), for additional storage beyond the installation dates set forth in this Agreement.
Attachment 5
EXHIBIT A-1 ARTIST PROPOSAL
LINDA BRUNKER – selected biography
Born Dublin, Ireland, 13th March 1966
National College of Art & Design, Dublin, Ireland. 1983 ‐ 1988 1988 ‐ Degree in fine art, Sculpture. 1987 ‐ Diploma in fine art, Sculpture Large and Public commissions:
‘Spirit of Speed’, Savoy Automobile Museum, 40 ft, Cartersville, Georgia, USA. 2021 ‘Ferdinand’, Team Brunker/Mcleod. Shanghai, China. 5’ x 9’. Painted, forged stainless steel. 2021 ‘Earth & Air’, Limerick, Ireland, 18 ft high, stainless steel, 2020, ‘Feathers’, Country Garden, Suzhou, China,3 elements @ 8 ft high, bronze, 2019 ‘Gaia’s Garden’, Yangcheng Lake Peninsula, China, 82 ft high, stainless steel, bronze, copper. 2018 ‘Lovers of life’, Yangcheng Lake Peninsula, China, 50 ft high, stainless steel, 2018 ‘Messengers 2’, Yangcheng Lake Peninsula, China, 33 ft high, stainless steel, 2018 ‘Dove’, Yangcheng Lake Peninsula, China, 50 ft high, stainless steel, 2018 ‘Dancer’, Yangcheng Lake Peninsula, China, 50 ft high, stainless steel, 2018 ‘Community Butterfly’, Suzhou Center, Suzhou, 15 ft high, China, stainless steel, 2017 ‘Listener’, Suzhou Center, Suzhou, China 28 ft high, stainless steel, 2017 ‘Floating Silk’, CIFI Lake Mansion, Suzhou, China, 10 ft high, bronze, 2016 ‘Game of Sea and Stars’, CIFI Lake Mansion, Suzhou, 15 ft high, China. Bronze, 2016 ‘Messengers’, Tai lake, Suzhou, China, 35 ft high, stainless steel, 2016 ‘Plant Form Head’, Vanke Midtown, Suzhou, China. 30 ft high, bronze, 2013. ‘Sink or Swim ‐ Hurricane Sandy Memorial Sculpture’, New York. USA, 6 ft high, bronze & stone. 2013. ‘Earth, Water, Air’, Commissioned by Marion Meyer Fine Art. Newport Beach, CA. USA. 10 ft high, bronze. 2007. ‘Cradle’, Pact Woodland Sculpture Project, Dublin. Ireland. Commissioned by PACT. 8 ft high, bronze. 2006. ‘The People’s Council’, City Hall, Laguna Beach. CA. USA. Granite, bronze. 2005. ‘Aurora’, Las Vegas, Nevada, USA. Bronze. 2005.
‘Samhain – (winter)’, St. Bridgit’s Meditation Garden, County Galway, Ireland. Bronze. 2004. ‘Aphrodite Rising’, San Francisco, USA. Bronze. 2004.
‘Groundling’, Boston, commissioned by Daniel Fine Art. USA. Bronze, 2004. ‘Voyager 2’, Laytown Strand, commissioned by Meath County Council, Ireland, bronze & stone. 2004. ‘Voyager 1’, Treasure Island Park, commissioned by Laguna Beach City, California. USA. Bronze & stone. 2003. ‘The Healing Tree’, Virginia Community Services Center, Co Cavan. Ireland. Bronze, 15ft high, 2002. ‘The Wishing Hand’, Ministry of Education, Marlborough Square, Dublin. Ireland. Bronze, 6 ft high, 2001. ‘Aqua’, Sea Castle, Santa Monica Beach, California, USA, bronze, 7 ft high, 2001. ‘Two For Joy’, Bray Police Station, Wicklow, Ireland. Bronze 7 granite & bronze, 2001. ‘The Ocean Meets The Land’, Hawaii, commissioned by Daniel Fine Art. 2000. ‘Meeting Point’, Scotch Quay, Waterford, Ireland. Commissioned by Frisby Construction, 2000. ‘Connect’. Commissioned for the Telecom Ireland, London Office. United Kingdom. Copper, 1999. ‘Continuum’, St. Helen's Hotel, Stillorgan, Co Dublin, Ireland, bronze, 15 ft high. 1999. ‘Overflow’, Pembroke Place, Grand Canal Street, Dublin, Ireland, bronze, 12 ft high, 1998. ‘Orchard Gate’, Athy, commissioned by Athy Urban District Council, Ireland. Granite, 1997. ‘Signal’, RTE (National Broadcasting Center), Dublin, Ireland, bronze & stone, 1996. ‘Source’ RTE, (National Broadcasting Center) Dublin, Ireland, bronze, 1996. ‘Flow’, Lennox Hill Medical Imaging Center, New York, bronze, 1996. ‘Lake Angel’, Lough Owel, Mullingar, Ireland. bronze & stainless steel, 25 ft high, 1993. ‘Awakening 2’, Rue Montroyer, Brussels, Belgium. Commissioned by Irish Life Assurance plc, bronze, 1991. ‘Awakening 1’, Earlsfort Center, Dublin, Ireland. 1990.
Solo Exhibitions:
2016 ‘Seen & Unseen’. Shaanxi Provence Art Museum, Xian, China 2016 ‘Seen & Unseen’. Suzhou Art Museum, Suzhou, China 2007/08 ‘Earth, Water, Air’, Gallery 13, Los Angeles. 1997 AIB, Park Avenue, New York.
Attachment 5
LINDA BRUNKER – selected biography
1996 Solomon Gallery, Dublin, Ireland.
Department of the Arts, Culture and Gaeltaght, Dublin, Ireland. 1995 AIHS, Fifth Avenue, New York.
AIB, Park Avenue, New York.
1994 Solomon Gallery, Dublin, Ireland.
Selected Group Exhibitions
Linda has participated in many group exhibitions from 1988 – 2021 in EU, USA and China, including.
2017 ‘Jinji Lake Bienale’, Suzhou, China
2015 ‘The Art Of A Nation’, Mall Galleries, London, UK. 2011 ‐ 2017 ‘Dialogue With Emperor Qin’, touring Museums in China and Europe. 2009 ‘Botanica ‐ Images of Nature Up Close’. Gallery 13 – Irish Fine Art, Los Angeles. 2008 ‘Spirit of Nature. Irish Art inspired by Nature and Landscape’. Gallery 13 – Irish Fine Art, Los Angeles.
‘Garden Sculpture’ – International garden sculpture, Gormleys Fine Art, Brackenstown House, Dublin. 2000 ‘AIB Art’ an exhibition of contemporary Irish figurative art, Poznan Castle, Poland. 1999 ‘Coda 999’, Dublin Castle, Ireland.
1996 ‘Women Sculptors’, Solomon Gallery, Dublin. Ireland. The best of British and Irish Sculptors.
1991 ‘Art Inc.’, Art from corporate collections, Guinness Hop Store, Dublin, Ireland. 1990 ‘Springboard’, Irish Life Exhibition Center, Dublin. Ireland. 1988 ‘Sculpture in Context’, Fernhill Gardens, Sandyford, Co. Dublin, Ireland. ‘Sculpture Open’, Gallagher Gallery, Dublin, Ireland.
‘G.P.A. Emerging Artists’, Douglas Hyde Gallery, Dublin. Ire land. The Best of New Irish Art.
Selected Press Coverage
‘Gaia’s Garden’, Mark Ewart, Irish Arts Review, Autumn 2017 ‘Qu Art’, Boss magazine, 2014. China.
‘Into the world of Outdoor sculpture’, Ar
t Business News, USA. March 2009
‘Bronze is Beautiful’, Home Interiors & Living Magazine, June 2005 ‘Naturally Sculpted’, Irish Homes Magazine, May 2005
‘Brunkers Original’, Aidan Dunne, The Irish Times Magazine, 17th March 2001 ‘A Future Created Through The Past’, Sunday Independent, 16th January 2000 ‘Upfront And Meaningful', Irish I
ndependent, 15th December, 1998
AIB Art. 1998, ‘Pembroke Statue A Watermark For Private Developers’, Sunday Tribune, 14th September, 1997 ‘Critics Choice’, Tribune Magazine, 10th November 1996
'From Little Acorns', Aidan Dunne, Social & Personal Magazine, May 1995 ‘Big Apple Brunker’, Tribune Magazine, 30th April 1995
‘Linda Bunker Solomon Gallery’,
Tribune Magazine, 30th October 1994
‘Bronze By Gold, The work of Irish Women Sculptors’, Dorothy Walker. Irish Arts Review, 1989/1990 ‘Young Work Will Grow In Value’, Dorothy Walker, Irish Independent, 6th December, 1988 Other Information:
Established ‘Gallery13‐Irish Fine Art’, Los Angeles 2007. ‘Who’s Who – Ireland’s Influential 1,000’, 2007.
Awarded USA E1 Permanent Reside
ncy Card as ‘Person of Extraordinary Ability in the Arts’. 2004.
Member of Board of the Sculptor’s Society of Ireland 1988‐91.
Lectured ‘Bronze Casting Techniques & Practice’, National College of Art & Design, Dublin, Ireland, 1992 – 1994.
Museum Collections
Shaanxi Provence Art Museum, Xian, China
Suzhou Art Museum, Suzhou, China
National Self Portrait Collection. Ireland
Awards
Art In Public Space Award. Awarded by Laguna Beach Beautifi cation Council for ‘Voyager’, Treasure island Park. CA 2018 Attachment 5
My vision for the Sunnyvale Civic Center Sculpture.
Linda Brunker - 09/06/2021
My design is inspired by the people of Sunnyvale.
It’s location at the heart of the Sunnyval e community suggests to us that it should be an artwork that is created with a lot of input fro m the people of Sunnyvale. It should be about them and for them.
Inspired by them and inspiring for them.
My goal is to create an atmosphere of participation, curiosity, inspiration and connection to the community.
To
this end I would like to invite the people of Sunnyvale to come to gether and pose, so they can be part of the creation of their o wn sculpture. I propose to create steel silhouettes o
f a diverse group of
figures holding hands. These steel silhouettes would be formed to create a circle (or an arc depending on the selected location).
Please see the Locatio
n map.
The figures will be cut from heavy gauge steel. Detailed images and text will be cut out leaving negative spaces and cre
ating a filigree design (similar to paper cuts). Gold leaf will be applied to highlight some details.
Some brail text can also
be included for the visua lly impaired .
Each figure will tell a story or give words of inspiration that will engage, uplift, mot ivate, comfort, entertain, inspire, unite and more.
The community
can also be invited to contribu te text for possible inclusion in the artwork.
The sculpture will represent a diverse range of people and will include figures from different races, genders, age groups, persons with disabilities, etc.
Many aspects of Sunnyvale can be represented: it’s indigenous people, farming history, contemporary innovation, diverse cultures, etc.
The process of choosing the figures and the text can be worked out between myself and the Arts Commission.
I suggest that people
can be invited on a particular day to a photo session event.
I will photograph a range of Sunnyvale people.
They can also be invited to submit some text: a saying, a short piece of poetry, their own words of wisdom, etc.
From this pool of photos and text the artist will choose the final content for the a rtwork and finalize the details of the design.
Each figure panel will be decorated with a l
ot of details. The various motifs and text will
engage viewers of all ages.
They will enjoy seeing it over and over as new details can continue to be discovered.
Attachment 5
Location
This artwork can be adapted to two locations. The format will depend on the chosen location.
A. Located behind the top row of Amphitheatre steps. The sculpture would be arc shaped following the curve of the steps. This elevated position would provide a natural platform allowing good visibility for the artwork and providing a backdrop for the Amphitheatre.
B. The open grass area to the west of the Amphitheatre. In this space we suggest a circular format. It would be visible from Olive Avenue and All American Way.
Either format will echo the circular theme of the landscape design.
Materials
I propose heavy gauge Corten steel for this sculpture.
Corten resists the corrosive effects of weather by forming a coating of oxidation over the metal, which inhibits deeper penetration and negates the need for painting and rust- prevention maintenance over the years.
Its warm rust tones wi ll complement the materials used in the Civic buildings and be a good contrast against the surrounding green grass.
All material and finish options can be explored at the final design stage after consultation with the project architects and designers.
I also propose finishing some details
with gold leaf. The text, for example. This is also a
maintenance free and
durable finish.
Scale
If this design is selected the final scale will be worked out at the next stage. Scale models will be made.
I envision the tallest figures to be around 12 ft tall for both A and B formats.
People should be
able to walk under some of the arms and into the center of the circle in the case of location B.
The di
ameter of the circle would be in the 25 – 30 ft range. The center would be paved.
For location A the figures would be the width of the top step of the Amphitheatre or a bit wider. They would also be set in a paved border to facilitate landscaping maintenance.
Attachment 5
Sample Figures
Attachment 5
Attachment 5
Amphitheater Location A - Back View
114
Attachment 5
Amphitheater Location B - Circle View
115
Attachment 5
Corten Steel Color Example
116
Attachment 5
22 EXHIBIT C
INSURANCE REQUIREMENTS
Consultant/Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work by the Consultant/Contractor, their agents, representatives, or employees.
Minimum Scope and Limits of Insurance. Consultant/Contractor shall maintain limits not less than:
1. Commercial General Liability: coverage written on an occurrence basis with limits not less than $1,000,000 per occurrence and $2,000,000 aggregate for bodily injury, personal injury and property damage. ISO Occurrence Form CG 0001 or equivalent is required.
2. Automobile Liability: coverage with a combined single limit of not less than $1,000,000 per occurrence applying to all owned, non‐owned, or hired vehicles used in conjunction
with this contract for bodily injury and property damage. ISO Form CA 0001 or equivalent is required.
3. Workers’ Compensation: Statutory Limits and Employer's Liability: $1,000,000 per accident for bodily injury or disease. This policy must be endorsed with a waiver of subrogation in favor
of the City of Sunnyvale.
Industry Specific Coverages. If checked below, the following insurance is also required:
☐ Liquor Liability coverage written on an occurrence basis with limits not less then $1,000,000 per occurrence.
☐ Professional Liability / Errors and Omissions Liability coverage with limits not less than $1,000,000 per occurrence.
☐ Valuable Papers and Electronic Data Processing with limits not less than $10,000 each. ☐ Cyber Liability coverage with limits not less than of $1,000,000. ☐ If working directly with
minors, the Certificate of Insurance must include coverage for molestation and sexual abuse with limits not less than $1,000,000 per occurrence and $2,000,000 aggregate. In the event that Abuse & Molestation Liability coverage is Attachment 5
23 provided via a Claims Made Policy, the coverage shall include a minimum of a five‐year extended reporting clause.
☐ Pollution Liability Insurance with limits not less than $1,000,000 per occurrence. ☐ MCS‐90 Endorsement to Business Automobile insurance for transportation of hazardous materials and pollutants.
☐ Builder’s Risk / Course of Construction: coverage written on an “all risk” basis with limits
equal to the completed value of the project and no coinsurance penalty provisions.
The City of Sunnyvale must be Loss Payee on the policy with respect to any repairs or replacement of any damaged property or other amounts payable under the policy.
Deductibles, Self‐Insured Retentions and Other Coverages:
Any deductibles or self‐insured retentions must be declared and approved by the City of Sunnyvale, Risk Manager. The Consultant/Contractor shall guarantee payment of any losses and related investigations, claim administration and defense expenses within the deductible or self‐ insured retention.
The aforementioned insurance requirements can be met through any combination of self‐ insured, primary and excess/umbrella policies that fulfill the stipulated coverage as cited above.
Other Insurance Provisions:
1. During the term of the contract, the City of Sunnyvale, its officials, employees, agents and volunteers are to be covered as an additional insured in the Consultant’s/Contractor’s commercial general liability policy (and if applicable, liquor liability, valuable papers and electronic data processing, cyber liability, pollution liability, sexual abuse and molestation, crime coverage, property coverage and builder’s risk policies) with respects to liability arising out of activities performed by or on behalf of the Consultant/Contractor; products and completed operations of the Consultant/Contractor; premises owned, occupied or used by the Consultant/Contractor. The cove
rage shall contain no special limitations on the scope of protection afforded to the City of Sunnyvale, its officers, employees, agents or volunteers.
2. For any claims related to this project, the Consultant’s/Contractor’s insurance shall be primary.
Any insurance or self‐insurance maintained by the City of Sunnyvale, its officers, officials, employees, agents and
volunteers shall be excess of the Consultant’s/Contractor’s insurance and shall not contribute with it.
3. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City of Sunnyvale, its officers, officials, employees, agents or volunteers.
Attachment 5
24 4. The Consultant’s/Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
5. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, cancelled by either party, reduced in coverage or in limits exce pt after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City of Sunnyvale.
6. The policy limits of coverage shall be made available to the full limits of the policy. The minimum limits stated above shall not serve to reduce the Consultant’s/Contractor’s policy limits of coverage. Therefore, the requirements fo
r coverage and limits shall be (1) the minimum
coverage and limits specified in this agreement, or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured, whichever is greater.
Acceptability of Insurers:
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A: VII, and who are admitted and authorized to do business and in good standing in California unless otherwise acceptable to the City of Sunnyvale’s Risk Manager.
Verification of Coverage:
Consultant/Contractor shall furnish the City of Sunnyvale with original a Certificate of Insurance effecting the coverage required. The certificates are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates are to be received and approved by the City of Sunnyvale, Risk Manager prior to commencement of work.
The Consultant/Contractor shall provide certificate(s) evidencing renewals of all insurance required herein prior to the exp
iration date of any such insurance. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
For all insurance policy renewals during the term of this Contract, Consultant/Contractor shall submit insurance certificate
s reflecting the policy renewals through PINS.
Subcontractors
Consultant/Contractor shall require all subcontractors to procure and maintain insurance policies subject to these requirements. Failure of Consultant/Contractor to verify existence of sub‐ contractor’s insurance shall not relieve Consultant/Contractor from any claim arising from sub‐ contractors work on behalf of Consultant/Contractor.
Attachment 5