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HomeMy WebLinkAboutAGENDA REPORT 2022 0601 CCSA REG ITEM 09BCITY OF MOORPARK, CALIFORNIA City Council Meeting of June 1, 2022 ACTION APPROVED STAFF RECOMMENDATION. (ROLL CALL VOTE: 4-0, COUNCILMEMBER GROFF RECUSED) BY A. Hurtado. B. Consider Recommended Artwork and Award Agreement for the Moorpark Station North Parking Lot Public Art Project. Staff Recommendation:1) Approve “Moorpark Orchard” by Eric Powell as the artwork for the Moorpark Station North Parking Lot Public Art Project; and 2) Approve Agreement with James Eric Powell for an amount not-to-exceed $175,000, and authorize the City Manager to sign the Agreement, subject to final language approval by the City Manager, and authorize the City Manager to approve additional work not-to-exceed 10% of the amount of the Agreement. (Staff: Jeremy Laurentowski, Parks and Recreation Director) Item: 9.B. MOORPARK CITY COUNCIL AGENDA REPORT TO: Honorable City Council FROM: Jeremy Laurentowski, Parks and Recreation Director BY: Chris Ball, Senior Management Analyst DATE: 06/01/2022 Regular Meeting SUBJECT: Consider Recommended Artwork and Award Agreement for the Moorpark Station North Parking Lot Public Art Project SUMMARY The City Council is being asked to consider the recommendation of the Arts Commission for the artwork to be installed at the Moorpark Station North Parking Lot and award an Agreement to the artist, James Eric Powell (Eric Powell), for the design, fabrication, and installation of the artwork. BACKGROUND Moorpark Municipal Code Chapter 17.50 establishes the City’s Art in Public Places (AIPP) program, with the goal of balancing the community’s physical growth with revitalization and its cultural and artistic resources. This program requires certain residential, commercial, and industrial development projects to either install public artwork or pay an in-lieu fee. In-lieu fees are collected and maintained in the AIPP Fund for use exclusively for the AIPP program. The Arts Commission is tasked with reviewing proposed AIPP projects and providing recommendations to City Council regarding site locations and conceptual design of proposed artwork. In February of 2017, the Arts Commission recommended the Moorpark train station north parking lot located at 300 East High Street (the “Project Site”) as the location for a new AIPP art installation, to be coordinated with the planned Metrolink North Parking Lot Expansion project. Potential locations for artwork were identified along a new pedestrian walkway crossing the parking lot and connecting the train station to High Street. The artwork would help to establish a formal pedestrian entry to the station and add cultural interest to the downtown area. Item: 9.B. 146 Honorable City Council 06/01/2022 Regular Meeting Page 2 In June of 2018 the City Council approved the Seven-Year Capital Improvement Program (CIP) for Fiscal Years (FY) 2017/18–2024/25 and the Operating and Capital Improvements Budget for FY 2018/19, which added the Moorpark Station North Parking Lot Public Art Project (CIP #C0052) to the City’s CIP project listing and allocated $200,000 from the AIPP Fund (Fund 2007) for the project. It was anticipated that the artist selection process would begin later that year, however the project was put on hold pending commencement of the Metrolink North Parking Lot Expansion project (CIP #C0032). A contract for the construction of CIP #C0032 was eventually awarded in November of 2021 after it was delayed due to the COVID-19 pandemic and work started in early 2022. In January of 2022, a Request for Qualifications (RFQ) was released for the Moorpark Station North Parking Lot Public Art Project. The RFQ sought proposals from artists for the design, fabrication, and installation of artwork at the Project Site. The RFQ did not prescribe any specific artistic style/structure for the artwork, allowing artists to propose concepts that meet the goals of the project without being limited to a specific type of feature. It was envisioned that the overall design would serve as a welcoming gateway when approached from either High Street or the train station. It was also noted that the artwork should celebrate the history and cultural significance of the railroad for the Moorpark community while respecting the small-town character of Old Town Moorpark. Additional goals, as stated in the RFQ, included:  The artwork should be engaging and aesthetically pleasing to individuals of all ages and backgrounds.  The artwork should be a significant addition to the City’s public art collection and grow Moorpark’s reputation as a city that values and supports the arts.  The artwork should be fabricated from durable, low maintenance materials that can withstand the outdoor elements and require minimal maintenance. A total of nine applications were received by the February 9th submittal deadline. For this public art project staff looked to the City’s recently adopted Arts Master Plan for recommendations on how to update the artist selection process in line with current best practices in the public art field. Among the implemented recommendations was refining the RFQ process such that the initial application review focused primarily on the artist’s qualifications and body of work. Based on the strength of the applications, up to three semi-finalists would be invited to develop preliminary artwork proposals. Semi-finalists would be given approximately four weeks to prepare their proposals and provided a stipend in the amount of $750 following presentation of the proposals to the artist selection panel. This process follows the recommendations in the Master Plan, which notes “it is a basic tenant within public art programs that professional artists are paid for the development of proposals.” Another recommendation drawn from the Master Plan involved updating the selection process for City-sponsored public art projects. Currently there is no formal artist selection process for such projects, and the Arts Commission has served as the selection committee for the last few projects: reviewing applicants and forwarding an artist 147 Honorable City Council 06/01/2022 Regular Meeting Page 3 recommendation directly to the City Council for consideration. The Master Plan, however, observes that best practice involves the creation of a diverse, project-specific selection panel comprised of art and design professionals and appropriate project stakeholders, thus incorporating both professional and community perspectives into the selection process. This process of using a temporary selection or advisory committee to inform City decision-making is also consistent with current City practice on other projects and endeavors (for example, the General Plan Advisory Committee). For the Moorpark Station public art project, it was envisioned that the selection panel would include members of the Arts Commission as well as a representative from the design firm working on the parking lot expansion project, a representative from the City’s Public Transit Division, and a representative from the High Street business community. Such a panel would fulfill the recommendation of the Master Plan by incorporating the represented arts expertise of the Arts Commission with related professional and community perspectives. On March 7th the Arts Commission held a special meeting during which it endorsed the formation of an artist selection panel for the project (the Panel) and selected Commissioner Tania De Haz and Commissioner Kim Simons to participate. The remainder of the Panel was comprised of Gregg Denson, the parking lot expansion project’s landscape architect from Architerra Design Group; Shaun Kroes, City’s Public Works Manager and project manager for the parking lot expansion project; and Tricia Shields, a High Street business representative and co-owner of Lucky Fools Pub. DISCUSSION The Panel met twice during the artist selection process. The first meeting was on March 22nd to review the submitted applications and identify three semi-finalists for the project. The three semi-finalists were given one month to develop preliminary artwork proposals. Proposals were presented to the Panel on April 25th in person at the Moorpark Community Center. Each artist presented preliminary renderings, site plans, and other details about the proposed artwork such as anticipated work schedule and maintenance requirements. After considering all of the artist presentations, the consensus of the Panel was to recommend the proposal titled “Moorpark Orchard” by artist Eric Powell. “Moorpark Orchard” is comprised of eight unique tree-like sculptures, each with its own character and sensibility. On each tree ‘grows’ fruit common to Moorpark’s farms such as apricots, oranges, and other produce, as well as industrial elements related to the site’s heritage such as train wheels, tracks, railroad spikes, and tools. Additional historically significant imagery like the egg and the apricot blossom can also be found incorporated into the designs of individual trees. By interweaving natural and human elements, the trees celebrate Moorpark’s agricultural and industrial heritage and their inter-relationship in an uplifting and universally appealing way. The trees themselves are inspired by the “tree of life,” a concept common to all cultures. Each sculpture is constructed of steel and stands approximately 10 feet tall. The steel is treated to evoke a weathered, industrial feel, with elements of each tree painted to draw attention, enhance and enliven the installations. It was also noted by the Panel that the weathered steel construction would align well with the industrial aesthetic of the new bus shelter that will 148 Honorable City Council 06/01/2022 Regular Meeting Page 4 be on High Street adjacent to the artwork. Eric Powell’s presentation slides are included as Attachment 1 for reference. On May 17th the Arts Commission unanimously supported the recommendation of the Panel and voted to forward the recommendation to the City Council for consideration. Staff concurs with the Arts Commission recommendation of “Moorpark Orchard” by Eric Powell. The proposed artwork meets the goals of the project, providing a significant art installation constructed of durable, treated, and weatherproofed steel which would withstand outdoor elements and require minimal maintenance. Although lighting elements were not specifically incorporated into the preliminary design, during his presentation Mr. Powell indicated that lighting could be incorporated into the final design based upon electrical access at the completed project site. The City Council is now asked to consider “Moorpark Orchard” by Eric Powell as the artwork for the Moorpark Station North Parking Lot Public Art Project and approve an Agreement with the artist for the design, fabrication, and installation of the artwork. FISCAL IMPACT The total cost of the Agreement with Eric Powell for the design, fabrication and installation of the artwork is $175,000. Funding in the amount of $200,000 from the AIPP Fund (Fund 2007) is included in the adopted FY 2021/22 budget for CIP #C0052. No additional appropriation is needed at this time. COUNCIL GOAL COMPLIANCE This action is consistent with City Council Goal 3, Objective 3.13: “Develop an RFP and contract with an artist to construct artwork at the Metrolink north parking lot.” STAFF RECOMMENDATION 1. Approve “Moorpark Orchard” by Eric Powell as the artwork for the Moorpark Station North Parking Lot Public Art Project; and 2. Approve Agreement with James Eric Powell for an amount not-to-exceed $175,000, and authorize the City Manager to sign the Agreement, subject to final language approval by the City Manager, and authorize the City Manager to approve additional work not-to-exceed 10% of the amount of the Agreement. Attachment 1: Moorpark Station North Parking Lot Site Plan Attachment 2: Eric Powell Presentation Slides Attachment 3: Agreement 149 East High Street Monument Sign East High Street Moorpark Station North Parking Lot Site Plan Designated Artwork Locations ATTACHMENT 1 150 MoorPark Station North Parking Lot Public Art Project -Proposal Eric Powell, Artist May 25, 2022 ATTACHMENT 2 151 'Moorpark Orchard' is comprised of eight 'tree' sculptures, each uniquely combining elements of agriculture and industry. 152 153 154 155 156 157 158 159 160 161 162 163 164 / ~~l\.' ~ '/11 r,r,l •j-Z:' pi,N!f ~@~ 0 .. 0 l.J 1 ~ 165 .J 166 .J 167 168 169 170 171 172 173 174 Inspiration 175 176 177 178 Train Wrench t;if.l't J -~ JUlLJIO•D UfD BO•T IPIID. Railroad tools ------.... -• 179 180 tree of life One of the very few symbols that has appeared in all cultures and ages of man, it reminds us to step back and see the sweet miracles of life and our own beautiful part in them. 181 GENEALOGIC AL TREE OF THE QUEEN ANO HER DECENDANTS Tree of Life and Family Tree 182 Profile of sculpture: (' Support section (back)...) Concrete footing 183 Welcome to Moorpark Orchard Artist: Eric Powell 2022 The eight 'trees' located here celebrate the rich heritage of Moorpark's agr,rian and industrial past, present and future. The 'trees' harken to the universal symbols of the Tree of Life, the Tree of Knowledge and the Family Tree. They help us to appreciate trees in w their beauty and abundancem Plaque 184 Thank you! 185 186 ERIC POWELL Berkeley, California 94710 415.407.5060 | eric@ericpowell.com | www.ericpowell.com March 20, 2022 City of Moorpark, Public Art: Moorpark Station North Parking Lot Preliminary Proposal ‘Moorpark Orchard’ Dear Moorpark Artist Selection Committee, Thank you for selecting me as a finalist for the Moorpark Station public art project! I propose to create up to eight sculptures that evoke and conjure a ‘magical orchard’ for the walkway area of the station parking lot, called Moorpark Orchard. The orchard is comprised of up to eight ‘tree’ sculptures. Each sculpture is unique with its own character and sensibility. On each tree ‘grows’ fruit common to Moorpark’s farms such as apricots, oranges, lemons and other produce; on each tree also grows train wheels, tracks, spikes, and tools. The trees celebrate Moorpark’s agricultural and industrial heritage and their inter-relationship, in an uplifting and universally appealing way. My vision is to create artworks that enhance, enliven and magnetize Moorpark station parking lot, which is the gateway to the station. The work will create a strong sense of ‘place’ and destination that make people feel more connected to and familiar with the station, giving them an inviting experience of the station. The artwork will celebrate the timeless and enduring story of Moorpark’s history as a quintessential California agrarian town. These are the ideas and concepts that will inform my vision for the artwork. Moorpark has evolved from an agricultural-based culture and economy to the introduction of the railroad and industry and the modernization that it ultimately brought with it. I appreciate and fully agree with the vision of retaining the ‘country charm and agrarian qualities that are the roots of Moorpark’s history’. This is the best way, in my opinion, to preserve the unique character of the town. And I believe the artwork that I am proposing expresses that quality and character. 187 ERIC POWELL Berkeley, California 94710 415.407.5060 | eric@ericpowell.com | www.ericpowell.com At the same time, the new station has a modern look and the vision of the artwork needs to keep this in consideration as well. I will approach the design/concept process in a way that integrates the historical with the modern sensibilities of Moorpark into one, integrated series of artworks that bring an individual mark and identity to the new train station. Regarding the placement of the sculptures and the access to electricity and lighting: I look forward to discussing these! Thank you for your consideration. I look forward to working with you! Best regards, Eric Powell 188 ERIC POWELL Berkeley, California 94710 415.407.5060 | eric@ericpowell.com | www.ericpowell.com April 19th, 2022 City of Moorpark, Public Art: Moorpark Station North Parking Lot Preliminary Proposal: Budget Budget: One Hundred and Seventy Five Thousand Dollars ($175,000.00) Artist Fee (20%) $25,000.00 Project Expenses: Project Consultants, including structural engineer and others, as required $4,000.00 Materials: $22,000.00 Fabrication: $73,000.00 Equipment Rental: $1,000.00 Insurance (Auto, General Liability, Risk of Loss, additional) $4,500.00 Studio operation, Administrative expenses: $10,000.00 Transportation and delivery of artwork to site: $3,000.00 Installation: $15,000.00 Project Contingency (10%): $17,500.00 TOTAL PROJECT BUDGET: $175,000.00 Payment Schedule: $8,750.00 (5%) upon the execution of this Agreement. $43,750.00 (25%) upon approval of the design by Art Selection Committee and City. $52,500.00 (30%) completion of 50% of the fabrication (to be determined by the Artist). $54,300.00 (30%) upon completion of the fabrication and when the Artwork is ready for delivery and installation at the Site. $17,500.00 (10%) upon notification of completion by the Artist and acceptance by the Client. 189 ERIC POWELL Berkeley, California 94710 415.407.5060 | eric@ericpowell.com | www.ericpowell.com Preliminary schedule and progress and completion of the work: Week 1: Execution of agreement. Week 2: Artist will produce shop drawings for fabrication process and receive stamped, approved drawings from the engineer. Weeks 3-6: Artist will order materials and begin fabrication of artwork. Weeks 6-12: Artist will continue on fabrication including cutting, welding, grinding, sanding the steel material. Weeks 12-16: Completion phase of the project includes preparing the plates for the footings, final surface finishing on the sculptures, and priming and painting the sculptures. Maintenance: Normal maintenance involves cleaning the artwork with mild household soap and warm water, with a non-abrasive sponge or cloth. Clean afterwards with water. Clean as needed. Artist will provide all applicable information on the paint type and paint colors for possible future touchup. Installation plan: 1) Design installation plan; the plan involves footings and attachment method for the sculptures. The footings will be pre-poured to artist’s specifications. The footing design will include an eighteen-inch steel plate with four J-bolts that are embedded into the footing when poured. The sculpture will have a steel plate of the same size (18”x18”x3/4”) that will be bolted at four points to the embedded steel plate. The base of the sculpture will have buttresses as needed, welded to the steel base plate. This will create an extremely strong and stable structure. The ‘trunk’ of the tree sculpture will have a steel plate welded in a ‘T’ shape running up the entire length for support and structural strength. 2) Receive approval from certified engineer for installation plan. 3) Coordinate with concrete contractor for pouring concrete footings. 4) Install sculptures. This involves lifting each sculpture into place (likely using a small scissor lift or similar equipment) and bolting the sculptures down to the threaded rods of the footings, ensuring that they are level and plumb. Local Licensed Contractor: A &A Concrete: 9452 Telephone Rd #108, Ventura, CA 93004 (805)676-0829 190 AGREEMENT BETWEEN THE CITY OF MOORPARK AND JAMES ERIC POWELL FOR PUBLIC ART PROJECT AT MOORPARK STATION NORTH PARKING LOT THIS AGREEMENT, is made and effective as of __________________________, between the City of Moorpark, a municipal corporation (“City”) and James Eric Powell, a sole proprietorship (“Artist”). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: WHEREAS, City has a need for certain artistic design, fabrication, and installation services to create public art (“Artwork” or “Work ” or “Works”) at the Moorpark Station North Parking Lot located at 300 East High Street, Moorpark, CA 93021 (“Project Site”); and WHEREAS, City desires to contract for such services with a private artist ; and WHEREAS, City wishes to retain Artist for said services as described in this agreement. NOW, THEREFORE, in consideration of the mutual covenants, benefits , and premises herein stated , the parties hereto agree as follows : 1.TERM The term of this Agreement shall be from the date of execution to completion of the work identified in the Scope of Services and in conformance with Exhibit B unless this Agreement is terminated or suspended pursuant to this Agreement. 2.SCOPE OF SERVICES City does hereby retain Artist as an independent contractor in a contractual capacity to perform the services set forth in Exhibit B, Scope of Work and Exhibit C, Artist’s Proposal, and in accordance with the terms and conditions hereinafter set forth herein and with the authorities and responsibility ordinarily granted to this type of work. In the event there is a conflict between the provisions of Exhibit B, Exhibit C, and this Agreement, the language contained in this Agreement shall take precedence. Artist shall perform the tasks described and set forth in Exhibit B. Artist shall complete the tasks according to the schedule of performance, which is set forth in Exhibit C. Compensation for the services to be performed by Artist shall be in accordance with Exhibit C and Section 7 of this Agreement. Compensation shall not exceed the rates or total contract value of one hundred seventy-five thousand dollars ($175,000) as stated in Exhibit C, without the written authorization of the City Manager. Payment by City to Artist shall be in accordance with the provisions of this Agreement. 1 ATTACHMENT 3 191 3. PREVAILING WAGES City and Artist acknowledge that this project is a public work to which prevai ling wages apply, and that a public work project is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (“DIR”). Artist agrees to notify any contractors(s) hired by Artist in the commission of the Artwork, that said contractor(s) are bound by all the terms, rules and regulations described in (a) Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code, including without limitation California Labor Code Section 1771 and (b) the rules and regulations established by the DIR implementing such statutes, as though set forth in full herein, including any applicable amendments made thereto duri ng the term of this Agreement. For every contractor who will perform work on this project, Artist shall be responsible for contractor’s compliance with (a) and (b), and Artist shall take all necessary actions to ensure contractor’s compliance. California Labor Code Section 1725.5 requires all contractors and subcontractors to annually register wi th the DIR before bidding or performing on any public work contract. Artist is required to provide proof of compliance with California Labor Code Section 1725.5 prior to hiring any contractors or sub - contractors for this project. 4. SPECIAL CONTRACT PROVISIONS Artist agrees to be bound by the terms of these Special Contract Provisions: a) Copyright. The Artwork shall be considered to be “works made for hire” for the benefit of the City. The Artwork and any and all associated intellectual property rights arising from the Artwork, shall be and remain the property of the City without restriction or limitation. The Artist shall not obtain or attempt to obtain copyright protection as to the Artwork. b) Irrevocable License to Reproduce. The Artist hereby grants the City, without additional charge to, or payment by, the City, an irrevocable license to make, or cause to be made, photographs and other two-dimensional reproductions of the Artwork or the Artwork Design for any municipal purpose including, but not limited to, educational, public relations, tourist and arts promotional purposes. For the purposes of this Agreement, the following are examples of permissible reproductions for the above cited purposes: in brochures and pamphlets pertaining to the City or State; in exhibition catalogs, books, slides, photographs, postcards, posters, and calendars; in art magazines, art books and art and news sections of newspapers; in general books and magazines not primarily devoted to art; as well as on slides, CDs, DVDs, film strips, video, computer websites, television, and social media sites. Title to the completed Artwork shall immediately vest in the City upon final acceptance by the City, and all ownership rights shall be transferred, conveyed, and assigned to the City for all purposes permitted by this Agreement. Prior to completion of the Artwork, City shall have the right, at its option, to claim o wnership, possession, and control of the uncompleted portions of the Artwork which are on the Project Site. 2 192 c) Artist’s Waiver of Rights Artwork Removal. The Artwork may be removed from the Project Site at any time. The Artist and the City acknowledge that the Artist may have certain rights under the federal Visual Artists Rights Act of 1990 (“VARA”). The Artist acknowledges and understands that the installation of the Artwork at the Project Site may subject the Artwork to destruction, distortion, mutilation, or other modification due to the acts of third parties or to its removal, repair, maintenance, storage, or transfer of ownership. Limited VARA Waiver. In consideration of the mutual covenants and conditions in this Agreement, and except as otherwise provided for in this Agreement, the Artist agrees to waive any right that the Artist may have under VARA to prevent the removal of the Artwork, or the destruction, distortion, mutilation, or other modification of the Artwork which arises from, is connected with, or is caused or claimed to be caused by the removal, repair, maintenance, storage, or transfer of ownersh ip of the Artwork by the City, or their elected officials, officers, employees, agents, or representatives, o r the presence of the Artwork at the Project Site, to the maximum extent permitted by law. California Civil Code Section 987 Waiver. The Artist and the City acknowledge that the Artist may have certain rights under California Civil Code Section 987 which are not preempted by VARA. In consideration of the mutual covenants and conditions in this Agreement, and to the maximum extent permitted by law, the Artist waives any rights which the Artist or the Artist’s heirs, beneficiaries, devisees, or personal representatives may have under California Civil Code Section 987 to prevent the removal, destruction, distortion, mutilation, or other modification of the Artwork. Rights of Artist’s Heirs, Successors and Assigns. The Artist’s VARA rights under this Agreement shall cease with the Artist’s death and do not extend to the Artist’s heirs, successors or assigns. d) Risk of Loss. Until the Artist receives an artwork acceptance notice from the City, any theft of, damage or vandalism to, or acts of God or nature affecting the Artwork are the Artist’s responsibility, including, but not limited to, any loss occurring during the fabrication, storage, transportation, delivery, or installation of the Artwork. Notwithstanding the foregoing, the Artist is not responsible for any damage to the Artwork arising from the sole negligence or willful misconduct of the City, its agents, employees, representatives, and contractors. e) Errors and Omissions. The City's acceptance of the Artwork shall not release the Artist of the responsibility for the correction of errors or omissions that the Artwork may contain, including any errors or omissions which arise from the Artist’s errors or omissions, or the errors and omissions of the Artist’s employees, agents, representatives, or sub-consultants regardless of whether these errors or omissions were the result of circumstances unforeseen at the time these deliverables were developed or approved. f) Defects in Workmanship. The Artist represents and warrants that all work by the Artist and/or contractors will be performed in accordance with professional 3 193 standards and free from defective or inferior materials and workmanship (including any defects consisting of “inherent vice,” or qualities that cause or accelerate deterioration of the Artwork) for one year after the date of final acceptance by the City. g) Breach of Warranty. If within the warranty period the City observes a breach of warranty that is not curable by the Artist, the Artist is responsible for reimbursing the City for damages, expenses and loss incurred by the City as a result of the breach. However, if the Artist disclosed the risk of this damage and the City accepted in writing that it may occur, it shall not be deemed a breach for purposes of this Agreement. h) Hazardous Materials. The Artist represents and warrants that the Artwork and the materials used are not currently known to be hazardous or potentially hazardous to any plant life, animal life, human life, or natural ecosystem. i) Public Safety. The Artist represents and warrants that the Artwork shall not constitute any threat to the safety of persons or property when used in the manner for which it is designed. j) Maintenance. The Artist represents and warrants that reasonable maintenance of the Artwork will not require procedures substantially in excess of those described in a maintenance plan submitted by the Artist. k) Acceptable Standard for Display. Artist represents and warrants that general routine cleaning and repair of the Artwork and any associated working parts and/or equipment will maintain the Artwork within an acceptable standard for public display; 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 for public display; with general routine cleaning and repair, and within the context of foreseeable exposure to the elements and general wear and tear, the Artwork will not experience irreparable conditions that do not fall within an acceptable standard of public display, including mold, rust, fracturing, staining, chipping, tearing, abrading and peeling; and to the extent the Artwork incorporates products covered by a manufacturer’s warranty, the Artist shall provide copies of such warranties to the City. l) Ownership of Documents. All original designs, plans, specifications, reports, documentation, and other informational materials, whether written or read able by machine, originated, or prepared exclusively for the City pursuant to this Agreement (“Work Product Materials”) shall become the joint property of the City and the Artist. The Artist shall deliver such documents to the City whenever reasonably req uested to do so by the City. Artist may not provide, transfer or otherwise convey any of the Work Product Materials to any third party without the City’s prior, written consent. m) Reproduction Rights. In view of the intention that the Artwork shall be unique, the Artist shall not make any additional exact duplicate two or three -dimensional reproductions of the Artwork, nor shall the Artist grant permission to others to do so except with the written permission of the City. However, nothing shall prevent the Artist from creating future artworks in the Artist’s manner and style of artistic expression. 4 194 n) Acknowledging the City. The Artist shall use the Artist’s best efforts in any public showing or on a résumé to give acknowledgment to the City in substantially the following credit line: “An artwork commissioned by the City of Moorpark.” o) City’s Right to Repair and Conserve. The City shall have the right to determine when and if repairs and restorative conservation to the Artwork will be made. It is the policy of the City to consult with the Artist regarding repairs and restorative conservation which is undertaken up to five (5) years after final payment has been made, when practicable. In the event that the City makes repairs or restorative conservation not approved by the Artist, the Artist shall have the right to disown the Artwork as the Artist’s creation and request that all credits be removed from the Artwork and reproductions thereof. p) Standards of Repair and Conservation. All repairs and restorative conservation, whether performed by the Artist, the City, or by third parties responsible to the Artist or the City, shall be made in accordance with professional conservation standards and in accordance with the maintenance manual provided to the City by the Artist. q) Notification in the Event of Removal or Relocation. The City, at its sole discretion, shall make reasonable efforts to notify the Artist in a reasonable time prior to any removal or relocation of the Artwork. In the event of removal from City property, the City may offer the Artwork to the Artist free of charge, but the Artist shall cover all costs associated with removal and delivery of the Artwork to an Artist-designated site. The removal must occur without damage to the City’s property and shall occur on a date and in a manner which is mutually approved by the City and Artist. 5. PERFORMANCE Artist shall at all times faithfully, competently and to the best of their ability, experience, standard of care, and talent, perform all tasks described herein. Artist shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Artist hereunder in meeting its obligations under this Agreement. 6. MANAGEMENT The individual directly responsible for Artist’s overall performance of the Agreement provisions herein above set forth and to serve as principal liaison between City and Artist shall be James Eric Powell, and no other individual may be substituted without the prior written approval of the City Manager. The City’s contact person in charge of administration of this Agreement, and to serve as principal liaison between Artist and City, shall be the City Manager or the City Manager’s designee. 5 195 7. PAYMENT Taxpayer ID or Social Security numbers must be provided, on an IRS 1099 form, before payments may be made to vendors. The Artist shall receive a fee (Artist's Fee) of twenty-five thousand dollars ($25,000) upon completion of the Artwork and final acceptance by the City Council of the City of Moorpark of the Artwork. The Artist shall be reimbursed for other project related expenses in accordance with the Schedule of Payment as set forth in Exhibit C. The Project Budget , excluding the Artist's Fee, shall not exceed one hundred fifty thousand dollars ($150,000) for work directly related to the services set forth in Exhibit B and Exhibit C. Artist shall complete the tasks according to the Schedule of Performance , which is set forth in Exhibit C. Artist shall submit invoices in accordance with the Schedule of Payment set forth in Exhibit C. Invoices shall be submitted on or about the first business day of each month, or as soon thereafter as practical, for services provided in the previous month. Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. If the City disputes any of Artist’s fees or expenses it shall give written notice to Artist within thirty (30) days of receipt of any disputed fees set forth on the invoice. Artist shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to those set forth herein unless such additional services are authorized in advance and in writing by the City Manage r. The City Manager, if authorized by City Council, may approve additional work not to exceed ten percent (10%) of the amount of the Agreement. 8. TERMINATION OR SUSPENSION WITHOUT CAUSE The City may at any time, for any reason, with or without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon the Artist at least ten (10) days prior written notice. Upon receipt of said notice, the Artist shall immediately cease all work under this Agreement, unless the notic e provides otherwise. If the City suspends or terminates a portion of this Agreement such suspension or termination shall not make void or invalidate the remainder of this Agreement. The Artist may terminate this Agreement only by providing City with written notice no less than thirty (30) days in advance of such termination. If the Agreement is terminated by Artist prior to final acceptance of the Artwork by the City Council, Artist shall forfeit the twenty-five thousand dollar ($25,000) Artist's Fee. In the event this Agreement is terminated or suspended pursuant to this Section, the City shall pay to Artist the actual value of the work performed up to the time of termination or suspension and consistent with the Schedule of Payment, provided that the work performed is of value to the City. Upon termination or suspension of the Agreement pursuant to this Section, the Artist will submit an invoice to the City pursuant to this Agreement. 6 196 9. DEFAULT OF ARTIST The Artist’s failure to comply with the provisions of this Agreement shall constitute a default. In the event that Artist is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compen sating Artist for any work performed after the date of default and can terminate or suspend this Agreement immediately by written notice to the Artist. If such failure by the Artist to make progress in the performance of work hereunder arises out of causes beyond the Artist’s control, and without fault or negligence of the Artist, it shall not be considered a default. If the City Manager or the City Manager’s designee determines that the Artist is in default in the performance of any of the terms or conditions of this Agreement, designee shall cause to be served upon the Artist a written notice of the default. The Artist shall have seven (7) days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event that the Artist fails to cure its default within such period of time, the City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement. 10. OWNERSHIP OF DOCUMENTS Subject to additional requirements in Special Contract Provisions, Artist shall maintain complete and accurate records with respect to sales, costs, expenses, receipts, and other such information required by City that relate to the performance of servi ces under this Agreement. Artist shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly iden tified and readily accessible. Artist shall provide free access to the representatives of City or the City’s designees at reasonable times to such books and records; shall give the City the right to examine and audit said books and records; shall permit City to make transcripts therefrom as necessary; and shall allow inspection of a ll work, data, documents, proceedings, and activities related to this Agreement. Notification of audit shall be provided at least thirty (30) days before an y such audit is conducted. Such records, together with supporting documents, shall be maintained for a period of five (5) years after receipt of final payment. Upon completion of, or in the event of termination or suspension without cause of this Agreement, all original documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the City and may be used, reused, or otherwise disposed of by the City without the permission of the Artist. With respect to computer files, Artist shall make available to the City, at the Artist’s office and upon reasonable written request by the City, the necessary computer software and hardware for purposes of accessing, compiling, transferring, and printing computer files. 7 197 11. INDEMNIFICATION AND HOLD HARMLESS To the maximum extent permitted by law, the Artist agrees to defend, indemnify, protect and hold City, its elected and appointed officials, officers, employees, agents, and volunteers, free and harmless from any and all claims asserted, and/or actual or al leged liability for damages or injuries to any person or property including Artist's employees, agents, representatives or subcontractors, and/or claims and liabilities arising directly or indirectly from, or that are connected with, or are caused or claimed to be caused by, the acts or omissions of the Artist, the Artist’s employees, agents, representatives or subcontractors, or anyone acting on the Artist’s behalf. The obligation to indemnify shall be effective even if the passive negligence of the City, its agents, officers or employees contributes to the loss or claim. The Artist further agrees that the duty to defend includes payment of attorney’s fees and all costs associated with enforcement of this indemnification provision, defense of any claims arising from this Project; and, where a conflict of interest exists, or may exist between the Artist and the City, the reasonable cost of attorney’s fees and all other costs if the City chooses, at its own election, to conduct its own defense or participate in its own defense of any claim related to this Project. The Artist’s duty to indemnify, defend, and hold harmless shall not include any claims or liability (i) to the extent arising from the active negligence, sole negligence, or willful misconduct of the City, its agents, officers or employees, as established by final court decision; or (ii) where otherwise prohibited or preempted by law. Without in any way limiting the generality of the foregoing, the Artist represents and warrants that the Artwork is solely the result of the artistic effort of the Artist. Any and all materials or deliverables, including but not limited to the Artwork Design and/or the Artwork (collectively, “Works”), provided under this contract are unique, original, an edition of one, not encumbered and do not infringe upon the copyright, trademark, patent or other intellectual property rights of any third party, or are in the public domain. The Artwork has not been accepted for sale elsewhere; the Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork or any element thereof or any copyright related thereto which may affect or impair the rights granted pursuant to this Agreement; the Artwork is free and clear of any liens from any source whatsoever; all artwork created or performed by the Artist under this Agreement, whether created by the Artist alone or in collaboration with others, shall be wholly original with the Artist and shall not infringe upon or violate the rights of any third party; the Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and all services performed hereunder shall be performed in a ccordance with all applicable laws, regulations, ordinances, and/or statutes, and with all necessary care, skill, and diligence. If any of the deliverables, materials or Works provided hereunder become the subject of a claim, suit or allegation of copyright, trademark or patent infringement, City shall have the right, in its sole discretion, to require Artist to produce, at Artist’s own expense, new non-infringing materials, deliverables or Works as a means of remedying any claim of infringement in addition to any other remedy available to the City under law or equity. Artist further agrees to indemnify, defend, and hold harmless the City, its elected 8 198 and appointed officials, officers, employees, volunteers and agents from and against any and all claims, liabilities, actions, costs, judgments and/or damages of any type alleging or threatening that any materials, deliverables, supplies, equipment, services or Works provided under this contract infringe the copyright, trademark, patent or other intellectual property or proprietary rights of any third party (Third Party Claims of Infringement). If a Third Party Claim of Infringement is threatened or made before Artist receives payment under this contract, City shall be entitled, upon written notice to Artist, to withhold some or all of such payment. The City does not and shall not waive any rights that it may have against the Artist by reason of this Section, because of the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to this agreement between the Artist and the City. The hold harmless and indemnification provisions shall apply regardless of whether or not said insurance policies are determined to be applicable to any losses, liabilities, damages, costs and expenses described in this Section. 12. INSURANCE Artist shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit A attached hereto and incorporated herein by this reference as though set forth in full. 13. INDEPENDENT CONTRACTOR Artist is and shall at all times remain as to the City a wholly independent Contractor. The personnel performing the services under this Agreement on behalf of Artist shall at all times be under Artist’s exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Artist or any of Artist’s officers, employees, or agents, except as set forth in this Agreement. Artist shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the City. Artist shall not incur or have the power to incur any debt, obligation, or liability against City, or bind City in any manner. No employee benefits shall be available to Artist in connection with the performance of this Agreement. Except for the fees paid to Artist as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Artist for performing services hereunder for City. City shall not be liable for compensation or indemnification to Artist for injury or sickness arising out of performing services hereunder. 14. LEGAL RESPONSIBILITIES The Artist shall keep itself informed of local, state and federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Artist shall at all times observe and comply with all such laws and regulations, including but not limited to the Americans with Disabilities Act and Occupational Health and Safety Administration laws and regulations. 9 199 The City, and its officers and employees, shall not be liable at law or in equity occasioned by failure of the Artist to comply with this Section. 15. ANTI DISCRIMINATION Neither the Artist, nor any subconsultant under the Artist, shall discriminate in employment of persons upon the work because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, or gender of such person, except as provided in California Government Code Section 12940. The Artist shall have responsibility for compliance with California Labor Code Section 1735. 16. UNDUE INFLUENCE Artist declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of the City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of the City will receive compensation, directly or indirectly from Artist, or any officer, employee or agent of Artist, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling the City to any and all remedies at law or in equity. 17. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES No member, officer, or employee of the City, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the Services during his/her tenure or for one (1) year thereafter, shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds thereof, for work to be performed in connection with the Services performed under this Agreement. 18. CONFLICT OF INTEREST Artist shall provide no service or enter into any agreement with any individual or entity that has an agreement to provide services , materials, or equipment to City without the prior written consent of the City Manager . Artist shall not accept a gift from any person or entity doing business with the City. For purposes of this Agreement , a gift is defined as provided for in California Government Code Section 87300, et seq . and Title 2, Division 6, California Code of Regulations, Section 18730 and amendments or supplementary thereto . 19. NOTICE Any notice to be given pursuant to this Agreement shall be in writing, and all such notices and any other document to be delivered shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt requested , with postage prepaid, and addressed to the party for whom intended as follows: 10 200 To: City Manager City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 To: James Eric Powell 1415 Fifth Street Berkeley, CA 94710 Either party may, from time to time, by written notice to the other, designate a different address or contact person, which shall be substituted for the one above specified. Notices, payments and other documents shall be deemed delivere d upon receipt by personal service or as of the third (3rd) day after deposit in the United States mail. 20. CHANGE IN NAME Should a change be contemplated in the name or nature of the Artist’s legal entity, the Artist shall first notify the City in order that proper steps may be taken to have the change reflected in the Agreement documents. 21. ASSIGNMENT Artist shall not assign this Agreement or any of the rights, duties or obligations hereunder. It is understood and acknowledged by the parties that Artist is uniquely qualified to perform the services provided for in this Agreement. 22. LICENSES At all times during the term of this Agreement, Artist shall have in full force and effect, all licenses required of it by law for the performance of the services in this Agreement. 23. VENUE AND GOVERNING LAW This Agreement is made, entered into, and executed in Ventura County, California, and any action filed in any court or for arbitration for the interpretation, enforcement or other action of the terms, conditions, or covenants referred to herein shall be filed in the applicable court in Ventura County, California. The City and Artist understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. 24. COST RECOVERY In the event any action, suit or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement or as a result of any alleged breach of any provision of this Agreement, the prevailing party shall be entitled to 11 201 recover its costs and expenses from the losing party, and any judgment or decree rendered in such a proceeding shall include an award thereof. 25. ENTIRE AGREEMENT This Agreement and the Exhibits attached hereto contain the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party’s own independent investigation of any and all facts such party deems material. 26. CAPTIONS OR HEADINGS The captions and headings of the various Articles, Paragraphs, and Exhibits of this Agreement are for convenience and identification only and shall not be deemed to limit or define the content of the respective Articles, Paragraphs, and Exhibits hereof. 27. AMENDMENTS Any amendment, modification, or variatio n from the terms of this Agreement shall be in writing and shall be effective only upon approval by both parties to this Agreement. 28. PRECEDENCE In the event of conflict, the requirements of the City’s Request for Proposal, if any, and this Agreement shall take precedence over those contained in the Artist’s Proposal. 29. INTERPRETATION OF AGREEMENT Should interpretation of this Agreement, or any portion thereof, be necessary, it is deemed that this Agreement was prepared by the parties jointly and equally and shall not be interpreted against either party on the ground that the party prepared the Agreement or caused it to be prepared. 30. WAIVER No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be bin ding unless executed in writing by the party making the waiver. 31. AUTHORITY TO EXECUTE The person or persons executing this Agreement on behalf of the Artist warrants and represents that he/she has the authority to execute this Agreement on behalf of the Artist and has the authority to bind Artist to the performance of obligations hereunder. 12 202 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. CITY OF MOORPARK ARTIST By:_______________________________ By:_______________________________ Troy Brown, City Manager JAMES ERIC POWELL Attest: __________________________________ Ky Spangler, City Clerk 13 203 EXHIBIT A INSURANCE REQUIREMENTS Prior to the beginning of and throughout the duration of the Agreement, A rtist will maintain insurance in conformance with the requirements set forth below. Artist will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth here, it will be amended to do so. A rtist acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to City in excess of the limits and coverage required in this agreement and which is applicable to a given loss, will be available to City. Artist shall provide the following types and amounts of insurance: 1. Commercial General Liability Insurance using Insurance Services Office “Commercial General Liability” policy form CG 00 01 or the equivalent. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. Limits shall be no less than $1,000,000 per occurrence for all covered losses and no less than $2,000,000 general aggregate. Artist’s policy shall contain no endorsements limiting coverage beyond the basic policy coverage grant for any of the following: • Explosion, collapse or underground hazard (XCU) • Products and completed operations • Contractual liability 2. Artist shall provide Worker’s Compensation insurance on a State of California approved policy form providing statutory benefits as required by law with employer’s liability limits no less than $1,000,000 per accident or disease. A Worker’s Compensation Insurance Certificate shall be filed with the City before beginning work, unless Artist signs a written certification that Artist is aware of the provisions of California Labor Code Section 3700 et seq., which requires every employer to be insured against liability for Worker’s Compensation, and that no one other than Artist, or a legal subcontractor, will perform any services under this Agreement. In the event the Worker’s Compensation Insurance submitted by the A rtist becomes inoperative any time before the completion of the work, all work shall immediately cease until a new policy is obtained and any time so lost shall not entitle the Artist to any extension of time. Certificates shall unequivocally provide 14 204 at least thirty (30) days written notice by certified mail to the C ity prior to cancellation or modification. In lieu of the above, the Artist may provide certification to the City on a form to be provided by the City that there are no employees other than the A rtist engaged in the project. 3. Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 06 92 including symbol 1 (Any Auto) or the exact equivalent. Limits shall be no less than $1,000,000 per accident, combined single limit. If A rtist owns no vehicles, this requirement may be satisfied by a non-owned auto endorsement to the general liability policy described above. If Artist’s employees will use personal autos in any way on this project, Artist shall provide evidence of personal auto liability coverage for each such person. 4. Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit requirements, shall provide coverage at least as broad as specified for the underlying coverages. Any such coverage provided under an umbrella liability policy shall include a drop down provision providing primary coverage above a maximum $25,000 self-insured retention for liability not covered by primary but covered by the umbrella. Coverage shall be provided on a “pay on behalf” basis, with defense costs payable in addition to policy limits. There shall be no cross liability exclusion precluding coverage for claims or suits by one insured against another. Coverage shall be applicable to City for injury to employees of Artist, subcontractors or others involved in the Work. The scope of coverage provided is subject to approval of City following receipt of proof of insurance as required herein. Limits are subject to review but in no event less than $1,000,000 per occurrence and aggregate. Insurance procured pursuant to these requirements shall be written by insurers that are admitted carriers in the state of California and with an A.M. Best rating of A- or better and a minimum financial size VII. Artist and City agree as follows: 1. Artist agrees to endorse the third party general liability coverage required herein to include as additional insured City, its officials, employees and agents, using standard ISO endorsement No. CG 2010 (ongoing operations) and No. CG 2037 (completed operations) with edition acceptable to the City. Artist also agrees to require all contractors, subcontractors, and anyone else involved in any way with the project contemplated by this Agreement to do likewise. 2. Any waiver of subrogation express or implied on the part of City to any party involved in this Agreement or related documents applies only to the extent of insurance proceeds actually paid. City, having required that it be named as an additional insured to all insurance coverage required herein, expressly retains the right to subrogate against any party for sums not paid by insurance. For its part, 15 205 Artist agrees to waive subrogation rights against City regardless of the applicability of any insurance proceeds, and to require all contractors, subcontractors or others involved in any way with the project(s) contemplated by this agreement, to do likewise. 3. All insurance coverage maintained or procured by Artist or required of others by Artist pursuant to this Agreement shall be endorsed to delete the subrogation condition as to City, or to specifically allow Artist or others providing insurance herein to waive subrogation prior to a loss. This endorsement shall be obtained regardless of existing policy wording that may appear to allow such waivers. 4. It is agreed by Artist and City that insurance provided pursuant to these requirements is not intended by any party to be limited to providing coverage for the vicarious liability of City or to the supervisory role, if any, of City. All insurance coverage provided pursuant to this or any other agreement (express or implied) in any way relating to City is intended to apply to the full extent of the policies involved. Nothing referred to here or contained in any agreement involving C ity in relation to the project(s) contemplated by this Agreement is intended to be construed to limit the application of insurance coverage in any way. 5. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. 6. All coverage types and limits required are subject to approval, modification and additional requirements by the City, as the need arises. Artist shall not make any reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period) which may affect City’s protection without City’s prior written consent. 7. Proof of compliance with these insurance requiremen ts, consisting of binders of coverage, or endorsements, or certificates of insurance, at the option of City, shall be delivered to City at or prior to the execution of this Agreement. In the event such proof of any insurance is not delivered as required, or in the event such insurance is canceled at any time and no replacement coverage is provided, C ity has the right, but not the duty, to obtain any insurance it deems necessary to protect its interests under this or any other agreement and to pay the premium. Any premium so paid by City shall be charged to and promptly paid by Artist or deducted from sums due Artist, at City option. 8. Artist agrees to endorse, and to require others to endorse, the insurance provided pursuant to these requirements, to requ ire thirty (30) days notice to City and the appropriate tender prior to cancellation of such liability coverage and notice of any material alteration or non-renewal of any such coverage, and to require contractors, subcontractors, and any other party in an y way involved with the project contemplated by this agreement to do likewise. 16 206 9. It is acknowledged by the parties of this Agreement that all insurance coverage required to be provided by Artist or any subcontractor, is intended to apply first and on a primary non-contributing basis in relation to any other insurance or self insurance available to City. 10. Artist agrees to ensure that subcontractors, and any other party involved with the project that is brought onto or involved in the project by A rtist, provide the same minimum insurance coverage required of Artist. Artist agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. A rtist agrees that upon request, all agreements with subcontractors and others engaged in the project will be submitted to City for review. 11. Artist agrees that all layers of third party liability coverage required herein, primary, umbrella and excess, will have the same starting and expiration date. A rtist agrees further that all other third party coverages required herein will likewise have concurrent starting and ending dates. 12. Artist agrees not to self-insure or to use any self-insured retentions or deductibles on any portion of the insurance required herein and further agrees that it will not allow any contractor, subcontractor, architect, engineer or other entity or person in any way involved in the performance of work on the project contemplated by this agreement to self-insure its obligations to City. If Artist’s existing coverage includes a deductible or self-insured retention, the deductible or self-insured retention must be declared to the City. At that time the City shall review options with the Artist, which may include reduction or elimination of the deductible or self -insured retention, substitution of other coverage, or other solutions. 13. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the A rtist ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Artist, the City will negotiate additional compensation proportional to the increased benefit to City. 14. For purposes of applying insurance coverage only, all contracts pertaining to the project will be deemed to be executed when finalized and any activity commences in furtherance of performance under this agreement. 15. Artist acknowledges and agrees that any actual or alleged failure on the part of City to inform Artist of non-compliance with any insurance requirement in no way imposes any additional obligations on City nor does it waive any rights hereunder in this or any other regard. 16. Artist will renew the required coverage annually as long as City, or its employees or agents face an exposure from operations of any type pursuant to this 17 207 agreement. This obligation applies whether or not the agreement is canceled or terminated for any reason. The insurance shall include but not be limited to products and completed operations and discontinued operations, where applicable. Termination of this obligation is effective upon issuance of a Notice of Completion by the City. 17. Artist agrees to waive its statutory immunity under any workers’ compensation statute or similar statute, in relation to the City, and to require all subcontractors and any other person or entity involved in the project contemplated by this Agreement to do likewise. 18. Requirements of specific coverage features are not intended as limitations on o ther requirements or as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all-inclusive. 18 208 EXHIBIT B SCOPE OF WORK FOR DESIGN, FABRICATION, AND INSTALLATION SERVICES ➢Execution of an Agreement for Public Art Project with the City, including compliance with all insurance requirements noted therein. Artists are responsible for understanding what is required with regard to the insurance before submitting a proposal. ➢Research, which includes examining the site, reviewing pertinent doc uments, meeting with City staff involved in the project, as well as members of the community. ➢Creation and submission of one Schematic Design. ➢Participation in a critique of the Schematic Design by the Moorpark Arts Commission. ➢Attendance at one meeting with members of the community to present the Schematic Design and gather feedback. ➢Development and submission of a Final Proposal. ➢Participation in a review of the Final Proposal by the Arts Commission and Staff. ➢Participation in a review of the Final Proposal by the Moorpark City Council. ➢Development and submission of wet-stamped engineering and construction documents, as necessary. ➢Participation in the revision and approval process for engineering and construction documents, as necessary. ➢Site preparation. ➢Fabrication, transportation, and installation of all art element(s), including a plaque identifying the artist, title, year and crediting the Art In Public Places program. ➢Contracting and management of all subcontractors required for completion of all phases of the project, including, but not limited to, engineering, fabrication, transportation, site preparation, and installation of the Artwork. o All work required for the project shall be performed by the Artist or by City - approved subcontractors. o If the fabrication and/or installation of the Artwork or any portion of the Artwork under this Agreement is a public work pursuant to Labor Code Section 1720 et seq. and requires a licensed contractor, Artist shall be solely responsible for ensuring that Artist and Artist's subcontractors (if any) have valid appropriate licenses and registrations under California law or the applicable jurisdiction. If the Artist and/or any of Artist's subcontractors are unlicensed during any phase of the project under this Agreement, the City shall have the right to bar Artist from receiving any payment for Artist's services. Artist and any subcontractors are required to pay the general 19 209 prevailing wage, as determined by the DIR, to any worker employed for such public work on this project. ➢Submission of documentation images and a maintenance report. ➢Participation in ribbon-cutting ceremony and/or outreach to press. ➢Coordination with City staff, as needed throughout the project. Some meetings, except meetings between the artist and members of the community, may be conducted remotely, as necessary and as solely determined by City staff. The City reserves the right to revise this scope of work. 20 210 ERIC POWELL April 19th, 2022 City of Moorpark, Public Art: Moorpark Station North Parking Lot Preliminary Proposal: Budget Budget: One Hundred and Seventy Five Thousand Dollars ($175,000.00) Artist Fee (20%) $25,000.00 Project Expenses: Project Consultants, including structural engineer and others, as required $4,000.00 Materials: $22,000.00 Fabrication: $73,000.00 Equipment Rental: $1,000.00 Insurance (Auto, General Liability, Risk of Loss, additional) $4,500.00 Studio operation, Administrative expenses: $10,000.00 Transportation and delivery of artwork to site: $3,000.00 Installation: $15,000.00 Project Contingency (10%): $17,500.00 TOTAL PROJECT BUDGET: $175,000.00 Payment Schedule: $8,750.00 (5%) upon the execution of this Agreement. $43,750.00 (25%) upon approval of the design by Art Selection Committee and City. $48,750.00 (28%) completion of 50% of the fabrication (to be determined by the Artist). $48,750.00 (28%) upon completion of the fabrication and when the Artwork is ready for delivery and installation at the Site. $25,000.00 (14%) upon notification of completion by the Artist and acceptance by the Client. Berkeley, California 94710 415.407.5060 | eric@ericpowell.com | www.ericpowell.com 21 211 ERIC POWELL Berkeley, California 94710 415.407.5060 | eric@ericpowell.com | www.ericpowell.com Preliminary schedule and progress and completion of the work: Week 1: Execution of agreement. Week 2: Artist will produce shop drawings for fabrication process and receive stamped, approved drawings from the engineer. Weeks 3-6: Artist will order materials and begin fabrication of artwork. Weeks 6-12: Artist will continue on fabrication including cutting, welding, grinding, sanding the steel material. Weeks 12-16: Completion phase of the project includes preparing the plates for the footings, final surface finishing on the sculptures, and priming and painting the sculptures. Maintenance: Normal maintenance involves cleaning the artwork with mild household soap and warm water, with a non-abrasive sponge or cloth. Clean afterwards with water. Clean as needed. Artist will provide all applicable information on the paint type and paint colors for possible future touchup. Installation plan: 1) Design installation plan; the plan involves footings and attachment method for the sculptures. The footings will be pre-poured to artist’s specifications. The footing design will include an eighteen-inch steel plate with four J-bolts that are embedded into the footing when poured. The sculpture will have a steel plate of the same size (18”x18”x3/4”) that will be bolted at four points to the embedded steel plate. The base of the sculpture will have buttresses as needed, welded to the steel base plate. This will create an extremely strong and stable structure. The ‘trunk’ of the tree sculpture will have a steel plate welded in a ‘T’ shape running up the entire length for support and structural strength. 2) Receive approval from certified engineer for installation plan. 3) Coordinate with concrete contractor for pouring concrete footings. 4) Install sculptures. This involves lifting each sculpture into place (likely using a small scissor lift or similar equipment) and bolting the sculptures down to the threaded rods of the footings, ensuring that they are level and plumb. Local Licensed Contractor: A &A Concrete: 9452 Telephone Rd #108, Ventura, CA 93004 (805)676-0829 22 212