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SAMPLE ARTIST CONTRACT
CITY AND COUNTY OF SAN FRANCISCO
Arts Commission
25 Van Ness Avenue, Suite 240
San Francisco, California 94102
Services Agreement — Individual Contractor
THIS AGREEMENT (hereafter “Agreement”) is made as of [insert date], in San Francisco, California, by and between [insert name of individual], an individual (“Artist”), and the CITY and COUNTY of SAN FRANCISCO, a municipal corporation (the “City”), acting by and through its Arts Commission (the “Commission”).
RECITALS
WHEREAS, Pursuant to Section 3.19 of the San Francisco Administrative Code, City has allocated funds for the acquisition of artwork for [INSERT DESCRIPTION OF PROJECT SITE], and has authorized the Commission to supervise and control the expenditure of funds for this artwork.
WHEREAS, The Commission, by Resolution Number [INSERT RESOLUTION NUMBER], has authorized the Director of Cultural Affairs to enter into Agreement with Artist in connection with the Artwork on the following terms and conditions.
WHEREAS, approval for said Agreement was obtained from a Civil Service Commission Notice of Action for Contract Number [insert Personal Services Contract Number] on [insert date of Civil Service Commission action];
NOW, THEREFORE, Artist and the City agree as follows:
1. Definitions.
Where any word or phrase defined below, or a pronoun used in place thereof, is used in any part of this Agreement or the Contract Documents, it shall have the meaning set forth below:
“Agreement” shall mean this agreement, including all addenda, appendices and modifications, whether created now or in the future.
“Alter” or “Alteration” shall mean, with respect to the Artwork, to alter, repair, modify, remove, relocate, sell, dispose of, distort, destroy, mutilate, or deface.
“Approved Costs” shall mean such costs as are scheduled on Appendix B, including the maximum expenditure authorized for each item.
“Architect” shall mean [INSERT ARCHITECT NAME].
“Artist” shall mean: [INSERT NAME AND ADDRESS OF ARTIST].
“Artwork” shall mean the work of art designed by Artist for the Site under the terms of this Agreement, as described and defined in Artist’s Proposal. In brief, the Artwork will consist of [INSERT BRIEF DESCRIPTION OF PROJECT].
“Authorization” shall mean a Term Purchase Agreement, Contract Order, or Purchase Order of City properly executed by the Commission, Purchaser, and City Administrator, and certified by the Controller for the specific funding of this Agreement or any modification thereof.
“Budget” shall mean a specific and detailed document identifying the cost of completion of all Work under this Agreement, including all modifications. The Budget shall include the costs for all design fees and costs; preliminary and final engineering requirements; estimates of ongoing maintenance needs; materials and labor for fabrication, including Artist costs; transportation of Artwork; installation of Artwork, including any necessary permits; permits and licenses; required insurance; any sales tax; post-installation maintenance required of the Artwork by Artist; and a 10% contingency allowance.
“City” shall mean City and County of San Francisco, a municipal corporation.
“Client” shall mean [INSERT NAME OF PROJECT SITE AGENCY].
“Commission” shall mean the San Francisco Arts Commission.
“Committee” shall mean the Visual Arts Committee of the Commission.
“Conceptual Design” shall mean drawings (in plan and elevation) and/or 3-dimensional models, a written description, proposed materials and samples and cost estimates at 30% design completion. The information provided in Conceptual Design shall be complete enough to fully illustrate the design intent of the Artwork.
“Construction Documents” shall mean final and complete architectural, structural, mechanical and engineering drawings, written specifications, structural and engineering calculations at 100% design completion, prepared by Artist, setting forth in detail the design of the Artwork and which are suitable for bidding. Construction Documents shall describe and fix the location, size, materials and character of the Artwork with respect to architectural, structural engineering, mechanical and electrical systems, materials, colors, method of attachment and fabrication methods, and other such elements as may be appropriate. Construction Documents must be signed and stamped by design professionals licensed in the State of California as required by the California Building Code and any local amendments thereto.
“Contract Documents” shall mean any work, including but not limited to, Design and Construction Documents, Shop Drawings, Mock-ups, models, Samples, engineering calculations, approved Installation Plans, and all material Samples and product data, the project Budget, and any and all additional documents and submittals produced under this Agreement that the Commission has approved and to which the completed Artwork is expected to conform.
“Controller” shall mean the Controller of City.
“Design Development Documents” shall mean presentation quality materials, which shall include colored drawings or computer-generated color images (in plan and elevation) and/or 3-dimensional models that accurately reflect the Artwork and how it will be installed at the Site, mock-ups, final color and materials samples, proposed fabrication methods, feasibility studies and cost estimates at 60% design completion. When used in reference to the proposed Artwork, Design Development Documents shall fix and describe the size and character of the Artwork with respect to its relationship to the Site, including architectural, structural, mechanical and electrical systems, materials and other elements as may be appropriate.
“Director of Administrative Services” shall mean the Director of Administrative Services for City.
“Director of Cultural Affairs” shall mean the Director of Cultural Affairs for the Commission.
“Force Majeure” with respect to a delay in or prevention of performance shall mean (a) any strike, lockout or other labor or industrial disturbance (whether or not on the part of the employees of either party), civil disturbance, future order claiming jurisdiction, act of the public enemy, war, riot, sabotage, blockade, embargo, inability to secure customary materials, supplies or labor through ordinary sources by reason of regulation or order of any government or regulatory body; (b) any changes in any applicable laws or the interpretation thereof; or (c) any flood, washout, explosion, or any other cause beyond the reasonable control of the party from whom performance is required.
“General Contractor” shall mean the general contractor hired by City to construct the capital improvement for the Site.
“Mock-ups” or “Samples” shall mean illustrations such as standard schedules, performance charts, instructions, brochures, diagrams, and physical samples of all or any portion of the Work, and other information furnished by Artist to illustrate materials or equipment for all or any portion of the Work. The purpose of the Mock-ups and Samples is to provide physical examples that illustrate materials, equipment or workmanship and establish the standards by which the Work will be judged.
“Proposal” shall mean the proposed visual, aesthetic, and artistic intent and design of the Artwork. The most recent design approved by the Commission is incorporated herein as part of the Contract Documents and is binding unless changes are approved by resolution of the Commission.
“Purchaser” shall mean the Director of Purchasing of City.
“Site” shall mean [INSERT DESCRIPTION OF PROJECT SITE].
“Shop Drawings” shall mean drawings, diagrams and other data specifically prepared by Artist illustrating in detail exactly how the Work, or any element thereof, is to be fabricated and installed. Shop Drawings shall be signed and stamped by a licensed design professional unless this requirement is specifically waived by the Commission.
“Work” shall mean the work of Artist pertaining to providing the Commission with the services and deliverables as required under the Agreement. In addition to all other services and deliverables required, Work shall include the design, fabrication, delivery and installation of the Artwork.
Whenever the words “as directed,” “as required,” “as permitted,” or words of like effect are used, it shall be understood as the direction, requirement, or permission of the Commission. The words “sufficient,” “necessary,” or “proper,” and the like, mean sufficient , necessary or proper in the judgment of the Commission. The words “approval,” “acceptable,” “satisfactory,” or words of like import, shall mean approved by, or acceptable to, or satisfactory to the Commission, unless otherwise indicated by the context. The terms “include,” “included” or “including” and similar terms shall be deemed to be followed by the words “without limitation.”
2. Term. Subject to Section 2, the term of this Agreement shall start on the later of [insert date] or the date on which the City’s Controller certifies to the availability of funds, as described in Section 2. Unless sooner terminated as set forth herein, the term shall end on [insert date].
3. Fiscal Limitations. THIS SECTION 2 SUPERSEDES ANY CONFLICTING PROVISION OF THIS AGREEMENT.
(a) This Agreement is subject to the fiscal provisions of the City’s charter and the budget decisions of its Mayor and Board of Supervisors. No funds will be available hereunder until prior written authorization certified by the City’s Controller. The Controller cannot authorize payments unless funds have been certified as available in the budget or in a supplemental appropriation. This Agreement shall automatically terminate, without liability to the City, if funds are not properly appropriated by the Mayor and Board of Supervisors or certified by the Controller. The City’s obligations hereunder shall never exceed the amount certified by the Controller for the purpose and period stated in such certification.
(b) The City, its employees and officers are not authorized to request services, materials, equipment or supplies that are beyond the scope of those expressly described herein, unless this Agreement is amended in writing and approved as required by law. Without such an amendment or approval, the City shall not be required to pay Artist for any such services, materials, equipment or supplies.
(c) The City, its employees and officers are not authorized to offer or promise any additional funding that would exceed the maximum amount specified in Section 4. Such additional funding requires lawful approval and certification by the Controller. Without such lawful approval and certification, the City shall not be required to provide such additional funding.
4. Services Artist Agrees to Perform; Procedure for Execution of Work; Budget; Supplies.
a. Services. Artist agrees to perform the services provided for in Appendix B, “Services to be Provided by Artist,” attached hereto and incorporated by reference as though fully set forth herein, as well as any scope of services included in any subsequent modification to this Agreement.
b. Procedure for Execution of Work.
(1) It is the general intent of the parties that Artist will complete the design, fabrication and installation of the Artwork at the Site, provided that City determines, in its sole discretion, to go forward with the completion of the Artwork. The Work shall be completed in separately defined, successive stages (“Phases”). In addition to the Phase(s) set forth in Appendix B at the time this initial Agreement is entered into, the parties may modify this Agreement to include subsequent Phases. Each Phase shall be governed by this Agreement, and by any modifications to this Agreement setting forth specific terms and conditions governing each Phase of Work. Each modification will include the Phase for which the Commission has given authorization, the scope of work covered by that Phase, the schedule of deliverables, insurance requirements, and payment terms.
(2) By authorizing any particular Phase, the Commission is not obligated to authorize any subsequent Phase. Subject to the limitations contained in this Agreement, the Commission may terminate this Agreement at any time and is under no obligation to modify the Agreement to include subsequent Phases.
(3) Artist shall not commence any Phase nor incur any expense in anticipation of commencing any Phase unless the Commission has given prior written authorization and the Controller has certified the availability of funds. Prior to beginning each Phase, Artist shall obtain the necessary approval of the previous Phase. In no event shall City be liable for any claims or damages arising from Artist’s unauthorized actions.
(4) If requested to do so in writing by the Commission, Artist shall enter into modifications of this Agreement to include later Phases of the Work, up to and including final installation at City’s option. Artist’s fee for such subsequent Phases shall be in accordance with the Budget approved pursuant to Section 8. City must exercise its option to require a subsequent Phase within 3 years of completion of the prior Phase. If City fails timely to exercise its option, Artist is released from its obligation under this Section. Artist acknowledges that Commission has provided to Artist a model contract template for Phases I through V of the Work, from conceptual design through fabrication and installation. Artist agrees that, if City exercises its option to enter into subsequent Phases of Work, Artist shall be bound to modify this Agreement to include such additional Phases of Work under the terms and conditions set forth in such model contract templates.
(5) The Work to be completed by Artist is unique and personal to Artist, and may not be capable of completion by anyone other than Artist. Therefore, if Artist fails or refuses to modify this Agreement to include subsequent Phases after having been requested to do so by the Commission, or fails to complete the Work required by any Phase, the Commission may require that Artist return all payments made under this Agreement from the initiation of the Agreement. If the Commission determines, in its sole and reasonable discretion, that Artist’s failure or refusal to complete subsequent Phases is justifiable and in good faith and for reasons beyond the control of Artist, the Commission may authorize Artist to keep payments made under this Agreement for prior completed Phases. In such case, the Commission may, at its option, engage another Artist to complete the Work.
c. Budget. Unless otherwise specified in a modification to this Agreement, at the completion of Design Development Documents, Artist shall submit a final Budget for the entire cost of completion of the Artwork, including design, fabrication, transportation and delivery, installation and any post-installation maintenance required of Artist. Once adopted by the Commission as part of the approval of the Design Development phase, such Budget shall be binding upon Artist. If Artist is unable to provide the completed and installed Artwork to City within the approved Budget, Artist will be considered to be in breach of this Agreement. The Budget, in addition to allowing for all costs anticipated for the design, fabrication, transportation and installation of the Work, must also allow for a 10% contingency allowance. Artist’s use of the contingency allowance must be approved in advance in writing by Commission staff. Any balance remaining in the materials budget or contingency allowance at the conclusion of the Agreement reverts to the Commission. The Budget shall also include an estimate of the costs of on-going maintenance of the Work. Such maintenance costs shall not be provided out of the Contract Amount unless the Commission specifically requires in writing that the Artist allocate a portion of the Contract Amount to on-going maintenance costs.
d. Suppliers. Artist shall provide the Commission with the name, address and telephone number of suppliers whose total invoices are expected to exceed one thousand dollars ($1000.00) prior to Artist beginning work under this Agreement, or as such expenses are incurred by Artist after certification of this Agreement.
5. Compensation. The total payment amount due to Artist under this Agreement shall not exceed [INSERT WHOLE DOLLAR AMOUNT IN NUMBERS AND WORDS -- NO PENNIES]. This total amount shall include Artist’s fee and all reimbursable expenses. Out of the total contract amount, Artist shall be responsible for paying all of Artist’s costs and expenses associated with the Work, including the costs of suppliers, fees, taxes, permits, insurance, transportation to and from meetings, and all other expenses associated with the scope of the Work specified in this Agreements (hereinafter “Artist’s Costs”).
Fee: Artist’s fee for coordinating and producing the Work (hereinafter “Artist’s Fee”) is [INSERT WHOLE DOLLAR AMOUNT IN NUMBERS AND WORDS -- NO PENNIES].
Reimbursables: In addition to Artist’s fee, as set forth immediately above, Artist shall be reimbursed up to [INSERT WHOLE DOLLAR AMOUNT IN NUMBERS AND WORDS -- NO PENNIES] for Approved Artist’s Costs based on the submittal of original receipts or invoices. The breakdown of Approved Costs associated with this Agreement appears in Appendix B, attached hereto and incorporated by reference as though fully set forth herein. Artist shall be entitled to reimbursement only to the extent Artist has actually incurred such costs, and City shall retain the benefit of any cost savings below those costs reflected in Appendix B and in the Budget.
Compensation shall be made to Artist based upon Artist’s successful completion, in the sole reasonable discretion of the Director of Cultural Affairs, of the milestones set forth in the Appendices to this Agreement.
No charges shall be incurred under this Agreement nor shall any payments become due to Artist until deliverables, services, or both, required under this Agreement are received from Artist and approved by the Commission as being in accordance with this Agreement. City may withhold payment to Artist in any instance in which Artist has failed or refused to satisfy any material obligation provided for under this Agreement.
In no event shall City be liable for interest or late charges for any late payments.
6. Invoices. Artist shall submit invoices for the Services in a form acceptable to the City.
7. False Claims. Artist acknowledges that it is subject to Section 21.35 of the San Francisco Administrative Code, which provides that any contractor who submits a false claim: (a) is liable for three times the amount of damages the City sustains; (b) is liable for the costs (including attorney’s fees), of a civil suit to recover such damages; and (c) may be liable for a civil penalty of up to $10,000 per claim. Under that Section, a contractor is deemed to have submitted a false claim if Artist: (i) knowingly presents (or causes to be presented) to an officer or employee of the City a false claim or request for payment or approval; (ii) knowingly makes or uses (or causes to be made or used) a false record or statement to get a false claim paid or approved by the City or to conceal, avoid, or decrease an obligation to pay or transmit money or property to the City; (iii) conspires to defraud the City by getting a false claim allowed or paid by the City; or (iv) benefits from an inadvertent submission of a false claim to the City, subsequently discovers the falsity and fails to disclose it to the City within a reasonable time after discovery.
8. Taxes. Contractor shall pay all taxes levied in connection with this Agreement or the Services, including any self-employment, possessory interest or sales and use taxes.
9. Payment Does Not Imply Acceptance of Work; Consultation; Approval and Final Acceptance
a. Payment does not imply acceptance of work. The granting of any payment by City, or the receipt thereof by Artist, shall in no way lessen the liability of Artist to replace unsatisfactory work, equipment, or materials although the unsatisfactory character of such work, equipment or materials may not have been apparent or detected at the time such payment was made. Materials, equipment, components, or workmanship that does not conform to the requirements of this Agreement may be rejected by City and in such case must be replaced by Artist without delay.
b. Consultation. Artist agrees to cooperate in good faith with the Commission and to be available as reasonably necessary for consultation with the Commission, Architect, Client, and General Contractor during all stages of the Work. Commission agrees to facilitate cooperation and arrange for and coordinate all necessary consultation among the Commission, Artist, Architect, Client, and General Contractor.
(1) Artist shall incorporate into the Contract Documents any changes made by the Architect to the Site design during the design process.
(2) Artist shall copy Commission on all correspondence between Artist, Architect, Client, Construction Management Team, or General Contractor in which Commission is not a party. Artist shall notify Commission in writing of any verbal agreements and /or understandings that are arrived at in conversations or meetings between Artist and Architect, Client, Construction Management Team and/or General Contractor to which Commission is not a party. Artist understands that failure to inform Commission of such agreements, and failure to confirm such agreements in writing with Commission and/or Client, Architect, Construction Management Team and/or General Contractor may result in such agreements not being honored.
c. Approval and Final Acceptance.
(1) The granting or withholding of any approval by the Commission shall be determined by the Commission in its sole and reasonable discretion. However, the Commission shall approve all deliverables if they conform to plans or Contract Documents previously approved by the Commission. If the Commission withholds approval of any deliverables or Phase, in addition to other rights or remedies available to the Commission under the Agreement or applicable law, the Commission shall have the right to terminate this Agreement immediately and shall have no further obligations under this Agreement.
(2) Final Acceptance. Artist shall advise the Commission in writing when Artist has completed all obligations, services and deliverables under this Agreement and all modifications. The Commission promptly shall send a Notice of Response identifying in writing any obligations, services or deliverables that Artist has not satisfactorily met, any defects in Artist’s performance, and the requirements for Artist to cure any such default. Artist shall have 20 days from dispatch of the Notice of Response to cure any defects in Artist’s performance identified in the Commission’s Notice of Response. The Artwork shall not be finally accepted by City unless the Commission has taken formal action of Final Acceptance. City shall make a good faith effort to make a determination as to Final Acceptance promptly.
(3) Civic Art Collection. Upon Final Acceptance, the Commission shall accession the Artwork into the Civic Art Collection.
10. Independent Contractor. Artist or any agent or employee of Contractor shall be deemed at all times to be an independent contractor and is wholly responsible for the manner in which it performs the services and work requested by City under this Agreement. Artist or any agent or employee of Contractor shall not have employee status with City, nor be entitled to participate in any plans, arrangements, or distributions by City pertaining to or in connection with any retirement, health or other benefits that City may offer its employees. Artist or any agent or employee of Artist is liable for the acts and omissions of itself, its employees and its agents. Artist shall be responsible for all obligations and payments, whether imposed by federal, state or local law, including, but not limited to, FICA, income tax withholdings, unemployment compensation, insurance, and other similar responsibilities related to Artist’s performing services and work, or any agent or employee of Artist providing same. Nothing in this Agreement shall be construed as creating an employment or agency relationship between City and Artist or any agent or employee of Artist.
Any terms in this Agreement referring to direction from City shall be construed as providing for direction as to policy and the result of Artist’s work only, and not as to the means by which such a result is obtained. City does not retain the right to control the means or the method by which Artist performs work under this Agreement.
11. Insurance.
a. Required Insurance. Without in any way limiting Artist’s liability pursuant to the “Indemnification” section of this Agreement, Artist must maintain in force insurance in the following amounts and coverages, or as modified in Appendix A. Artist must obtain such insurance on or before the time specified below; if no time is specified below, Artist shall obtain such insurance when required to do so by Appendix A or a modification to this Agreement. Artist must maintain all required insurance continuously from the time originally specified, throughout the term of this Agreement until Final Acceptance of the Work. The Director of Cultural Affairs, with the approval of City’s Risk Manager, may authorize in writing the release of an interest in such insurance at an earlier date.
(1) Professional Liability Insurance for all design professionals (such as architects, landscape architects or engineers) who provide Artist with signed stamped drawing or calculations. Such insurance shall have limits not less than $1 million each claim with respect to negligent acts, errors and omissions, and any deductible may not exceed $50,000 each claim. Artist shall obtain such insurance when Artist subcontracts for any work from such a design professional, and prior to the submittal of Construction Documents. Any design professional required to obtain professional liability insurance must maintain proof of insurance for the term of this Agreement.
(2) Commercial General Liability Insurance, with limits not less than $1,000,000 each occurrence Combined Single Limit for Bodily Injury and Property Damage, including Contractual Liability, Personal Injury, Products and Completed Operations. Artist shall obtain such insurance prior to transporting or installing the Work at the Site.
(3) Automobile Liability Insurance: Personal Automobile Liability Insurance with limits not less than $100,000/$300,000 each occurrence. Artist shall obtain such insurance prior to certification of this Agreement.
(4) Fine Arts Insurance or other insurance against loss in an amount to be specified in a subsequent contract modification. Artist shall obtain such insurance prior to commencing fabrication of the Artwork.
(5) Transportation and/or Installation Coverage, as necessary and appropriate.
(b) With the exception of Professional Liability and Personal Automobile Liability, each policy shall: (i) name as additional insured “the City and County of San Francisco, its officers, agents and employees”; (ii) provide that it is primary to any other insurance available to any additional insured, with respect to any claims arising out of this Agreement; (iii) provide that it applies separately to each insured against whom claim is made or suit is brought; and (iv) provide for at least thirty (30) days' advance written notice to the City of cancellation or modification.
(c) If any policy is on a claims-made form, Artist shall maintain such coverage, without lapse, for a period of three years after termination hereof so that if any occurrence during the term hereof gives rise to a claim made after such termination, such claim is covered.
Before commencing any operations under this Agreement, Contractor shall do the following: (a) furnish to City certificates of insurance, and additional insured policy endorsements with insurers with ratings comparable to A-, VII or higher, that are authorized to do business in the State of California, and that are satisfactory to City, in form evidencing all coverages set forth above, and (b) furnish complete copies of policies promptly upon City request.
(e) The City’s acceptance or approval of any insurance shall not limit Contractor’s liability hereunder.
(e) In the event of loss or damage and where any insurance proceeds are paid to City, the Commission shall make a determination, in its sole discretion, as to whether the Work shall be restored, reconstructed or abandoned. If the Commission determines that Artist shall restore or reconstruct the Work, all insurance proceeds received by City shall be paid to Artist to the extent the proceeds are used for such restoration or recreation.
12. Indemnification. Artist shall indemnify, protect, defend and hold harmless the City and its subdivisions, officials, employees and agents (each a “Covered Person”) from and against all liabilities, obligations, losses, damages, judgments, costs or expenses (including legal fees and costs of investigation) (“collectively “Losses”) arising from, in connection with or caused by: (a) any personal injury or property damage caused, directly or indirectly, by any act or omission of Artist; or (b) any infringement of patent, copyright, trademark, trade secret or other proprietary right caused by Artist. Notwithstanding the foregoing, Artist shall have no obligation under this Section with respect to any Loss that is caused solely by the active negligence or willful misconduct of the Covered Party and is not contributed to by any act or omission (including any failure to perform any duty imposed by law) by Artist. Artist acknowledges and agrees that its obligation to defend in this Section: (i) is an immediate obligation, independent of its other obligations hereunder; (ii) applies to any Loss which actually or potentially falls within the scope of this Section, regardless of whether the applicable allegations are or may be groundless, false or fraudulent; and (iii) arises at and continues after the time the Loss is tendered to Artist.
13. Liability of City. THE CITY'S PAYMENT OBLIGATIONS HEREUNDER SHALL BE LIMITED TO THE PAYMENTS UNDER SECTION 4. CITY SHALL NOT BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES.
14. Timely Provision of Services; Damages for Delayed Performance; Liquidated Damages
a. Time is of the essence in this Agreement. Artist agrees to provide all deliverables in accordance with the timelines contained herein unless changes are approved in writing by the Commission.
b. Damages for Delayed Performance
(1) Generally. Artist shall be liable for all incidental and consequential damages resulting, directly or indirectly, from delays in performance caused by Artist’s acts or omissions. Artist shall not be liable to City for damages resulting from delays caused by force majeure or by acts or omissions of City, Architect or the General Artist, except to the extent Artist failed reasonably to mitigate such damages.
(2) Illness, Injury, Death or Incapacity. Should Artist die, become ill , injured or otherwise incapacitated (collectively, “incapacitated”) such that Artist is unable to work for any period not exceeding 30 days (whether consecutive or non-consecutive), any delay arising out of such incapacity will be allowed by City whenever it is practicable to do so, considering the facts and circumstances of the Work, the Project, the Architect, the General Artist and the Client. City may require Artist to provide medical certification of any claimed incapacity. In the event Artist is incapacitated such that Artist is unable to work for a period exceeding a total of 30 days (whether consecutive or non-consecutive), City may, at its option, undertake to complete and install the Work in Artist’s absence, so long as the final Artwork is substantially similar to that designed by Artist. If City undertakes to complete the Work, City shall give due consideration to Artist’s suggestions, and Artist may disclaim authorship of the Work. If City exercises its option to implement the Artwork in Artist’s absence, any compensation paid or payable to Artist shall be reduced by the costs and expenditures of City in completion and installation of the Work. In case of incapacity exceeding 30 days, the following person shall be Artist’s representative vis-à-vis the City for purposes of this Section:
[INSERT NAME AND ADDRESS OF ARTIST’S REPRESENTATIVE]
b. Liquidated Damages.
(1) By entering into this Agreement, Artist acknowledges that in the event the Work is delayed beyond the scheduled milestones and timelines provided in this Agreement, City may suffer actual damages that will be extremely difficult to determine. Commission may determine that specification of liquidated damages is appropriate for some or all phases of Work under this Agreement and, if so, shall specify the amount of liquidated damages in the appropriate phase of Work under Appendix A. Artist agrees that the specified sum of damages per day for each calendar day of delay beyond scheduled milestones and timelines is not a penalty, but is a reasonable estimate of the loss that City will incur based on the delay, established in light of the circumstances existing at the time this Agreement was awarded.
(2) City may deduct a sum representing the liquidated damages from any money due to Artist. Such deductions shall not be considered a penalty, but rather agreed monetary damages sustained by City because of Artist’s failure to deliver to City within the time fixed or such extensions of time permitted in writing by the Commission.
(3) In case of delay in Artist’s services through no fault of Artist, including construction delay, Artist shall store the Work at no additional cost to City for up to 6 months. If Artist’s work is delayed due to construction delays at the Site or other delays caused by City or its contractors, so that Artist suffers documented direct cost impacts in the form of increased costs of materials and/or labor, Artist may apply to the City for reimbursement of those expenses, which City may award in its sole discretion.
15. Default. Artist shall be in default if Artist: (a) fails to perform any covenant (including a lapse in insurance coverage); (b) files or is the subject of a petition for bankruptcy or insolvency; or, (c) has a court-ordered receiver or trustee appointed with respect to Artist’s assets.
16. Remedies. If a default under Section 15 has occurred and is continuing, the City may, individually or in combination with any other remedy: (a) terminate this Agreement; (b) offset the amount of any outstanding liability of Artist against funds otherwise due and owing hereunder or any other agreement with Artist; (c) withhold funds due hereunder; (d) cure the default, in which event all amounts expended by the City in effecting such cure shall be payable upon demand, with interest from the date of incurrence at the maximum rate permitted by law; or (e) exercise any other remedy available by law. The City shall have no obligation to exercise any of the foregoing remedies.
17. Termination for Convenience. The City may terminate this Agreement without cause or penalty upon at least thirty (30) days’ prior written notice to Artist. In such event, Artist shall continue to perform the Services until the termination effective date, and Artist will be paid for those Services adequately performed through such date. Thereafter, this Agreement shall terminate, subject to Sections 48. Artist disclaims any right to anticipated profits or losses or any other expense not expressly covered under Section 4 and incurred prior to such termination effective date.
18. Rights and Duties Upon Termination or Expiration
If the Commission terminates this Agreement for any reason, City shall be automatically vested with title to any Work produced under this Agreement up to the date of termination. Artist shall deliver any such Work to City in the manner, at the times, and to the extent directed by City. If termination is due to the default of Artist, City may, at its option, require Artist to refund to City any interim payments received under the Agreement; in such case, City may transfer title to the Work to Artist. This subsection shall survive termination of this Agreement.
19. Artist’s 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. Warranty of Workmanship. Artist represents and warrants that, for a period of three years after final acceptance, the Work will be free of defects in workmanship or materials, including Inherent Defects (as defined below), and that the Work will be executed in permanent, non-fugitive materials that will not tend to degrade or fade over long-term installation at the Site. “Inherent Defect” refers to a quality within the material or materials which comprise the Work which, either alone or in combination, results in the tendency of the Work to destroy itself. “Inherent Defect” does not include any tendency to deteriorate that is specifically identified in the Contract Documents approved by the Commission. Artist shall, at Artist’s sole cost and expense, remedy any defects in workmanship or materials that appear within a period of three years from the date of final acceptance of the Artwork by City.
c. Warranty of Public Safety. Artist represents and warrants that the Work will not pose a danger to public health or safety 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 Agreement.
d. Acceptable Standard of Display. Artist represents and warrants that:
(1) general routine cleaning and repair of the Artwork and any associated working parts and/or equipment will maintain the Work within an acceptable standard of public display;
(2) foreseeable exposure to the elements and general wear and tear will cause the Work to experience only minor repairable damages and will not cause the Work to fall below an acceptable standard of public display; and
(3) with general routine cleaning and repair, and within the context of foreseeable exposure to the elements and general wear and tear, the Work 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.
e. Manufacturer’s Warranties. To the extent the Work incorporates products covered by a manufacturer’s warranty, Artist shall provide copies of such warranties to City.
20. Instructions for Maintenance
Unless specifically provided in this Agreement, Artist shall not be responsible for ongoing maintenance of the Artwork. Artist shall provide the Commission a General Maintenance Plan for the Artwork, generally describing anticipated maintenance requirements; a recommended maintenance schedule; anticipated and required care and/or replacement of any part of the Artwork and associated moving parts or equipment; and written instructions and manufacturer’s specifications for reasonably foreseeable maintenance and preservation activities relating to the Artwork. The Artwork must be durable, taking into consideration that the Site is an unsecured public space that may be exposed to elements such as weather, temperature variation, and considerable movement of people and equipment. Artist must ensure that all maintenance requirements will be reasonable in terms of time and expense.
Although City strives to maintain the Civic Art Collection in good repair and condition, City is not required by this Agreement to maintain the Artwork to any particular standard. City may determine to allow the Artwork to deteriorate in accordance with the Artwork’s temporary life span, if deemed appropriate by City or if City lacks sufficient funds for required maintenance and/or conservation. If the Artwork suffers deterioration, City shall have sole discretion to determine whether to remove the Artwork from display as a result of deterioration, or whether to maintain the Artwork on display despite its deteriorated condition.
The anticipated life span of the Artwork is ______ years from the date of final acceptance by the Commission. After that time, the Commission in its sole discretion may re-evaluate the Artwork to determine if it retains its identity as a work of art and, if not, whether to take appropriate action, including the possibility of destroying the Artwork. If no life span is specified above or pursuant to a subsequent contract modification, the anticipated life span of the Artwork shall be 25 years. If the Commission determines that, through decay, vandalism or other forces, the Artwork has lost its integrity to the point where it should be destroyed, the Commission shall first offer the Artwork to Artist free of charge.
21. Artist’s Moral Rights; City’s Ownership Rights.
a. The Commission, having expended considerable public funds to commission the Artwork, and pursuant to its Charter responsibilities, intends to display the Artwork at the Site as originally created by Artist and to maintain the Artwork in good condition. Public artworks commissioned by the Commission are sometimes integrated into their site, such that they become an integral, permanent and site-specific part of the building’s architecture or landscaped environment and removal of the artwork would result in significant changes to the artwork and the building’s architecture. City, however, must preserve complete flexibility to operate and manage City property in the public’s interest. Therefore, City retains the absolute right to Alter the Artwork in City’s sole judgment. For example, City may Alter the Artwork to eliminate hazard, to comply with the ADA, to otherwise aid City in the management of its property and affairs, or through neglect or accident. If, during or after the term of this Agreement, City finds the Site to be inappropriate, City has the right to install the Artwork at an alternate location that City chooses in its sole discretion. If the Artwork is free-standing such that it can be removed without significant damage to the Artwork or the Site, and if the Commission authorizes the removal of the Artwork, the Commission shall take reasonable precautions to minimize Alteration of the Artwork during removal.
b. With respect to the Artwork produced under this Agreement, and in consideration of the procedures and remedies specified in this Agreement, 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 building such that the Artwork cannot be removed from the building without Alteration of the Artwork, Artist waives any and all such claims against any future owners of the Site, and its agents, officers and employees, for Alteration of the Artwork.
c. If City intends to take any action with respect to the Site or the Artwork that would Alter the Artwork, other than routine cleaning and maintenance, the following procedures shall apply:
(1) Notice. Where time permits, Commission shall make reasonable good faith efforts to notify Artist at least 20 calendar days prior to authorizing any Alteration of the Artwork, at the last phone number or address provided by Artist to the Commission’s Collections Manager. Where time does not permit prior to Alteration of the Artwork – for example, in cases of public hazard, accident or unauthorized Alteration – Commission shall notify Artist within 30 calendar days after such Alteration.
(2) Consultation. After receiving such notice, Artist shall consult with City to determine whether the Artwork can be restored or relocated, and to attempt 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 City intends to remove the Artwork, Artist shall consult regarding methods to minimize or repair any Alteration to the Artwork caused by such removal and the potential costs of such removal.
(3) Restoration. If the Artwork is Altered, with or without prior notice to Artist, 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 compensate Artist for Artist’s time and efforts at fair market value, which may be the subject of a future Agreement between Artist and City. However, City has no obligation under this Agreement to restore the Artwork to its original condition, to compensate Artist for any restoration work, or to maintain the Artwork on display. 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. During Artist’s lifetime, City shall make best efforts not to display or deaccession only a portion of the Artwork without Artist’s consent.
(4) Removal by Artist. Where time permits, if City intends to take action that will destroy or significantly Alter the Artwork, such as destruction of all or part of the Site, and City determines that it will not remove the Artwork itself, City shall allow Artist to remove the Artwork at Artist’s expense within 60 days of notice from the City of the need to remove the Artwork, in which case title shall revert to Artist. If Artist fails to remove the Artwork within that 60 day period, City may Alter the Artwork in any manner, including destroying it, in City’s sole discretion.
(5) Remedies. If City breaches any of its obligations under this Section, Artist’s remedies shall be limited as follows: If City inadvertently fails to provide a required prior notice of Alteration, City will provide notice as soon as it discovers the omission, and before Alteration of the Artwork if that remains possible. If City Alters the Artwork without providing Artist a required prior notice of Alteration, Artist shall be given the first right of refusal to restore the Artwork at the same location and City shall make reasonable efforts to provide funding for the restoration. If City funds cannot be made available after reasonable efforts are made to secure such funding, Artist may, but is not obligated to, restore the Artwork at Artist’s expense. If Artist elects not to restore the Artwork, City may retain another artist or conservator to restore it, or may Alter the Artwork in any manner, at City’s sole discretion.
d. If City Alters the Artwork without Artist’s consent in a manner that is prejudicial to Artist’s reputation, Artist retains the right to disclaim authorship of the Artwork in accordance with California Civil Code §987(d) and 17 U.S.C. §106A(a)(2).
e. Except as provided in this Agreement, with respect to third parties who are not officers, employees, agents, successors or assigns of City, Artist retains Artist’s moral rights in the Artwork, as established in the Visual Artists Rights Act (17 U.S.C. §§106A and 113(d)), the California Art Preservation Act (Cal. Civil Code §§987 and 989), or any other local, state, federal or international moral rights laws that protect the integrity of works of art. Accordingly, nothing herein shall prevent Artist from pursuing a claim for Alteration of the Artwork against a third party who is not an officer, employee, agent, successor or assign of City. City has no obligation to pursue claims against third parties to remedy or prevent Alteration of the Artwork. However, as owner of the Artwork, City may pursue claims against third parties for damages or to restore the Artwork if the Artwork has been Altered without City’s authorization.
22. No Conflict of Interest. Artist understands Section 15.103 and Appendix C 8.105 of the City’s Charter and Section 87100 et seq. of the California Government Code, and knows of no facts that would constitute a violation of such laws.
23. Confidentiality. Artist shall keep strictly confidential any of the City’s proprietary or confidential information to which Artist has access while performing the Services and shall not make any disclosure thereof without the prior written consent of the City.
24. Notices. Unless otherwise indicated elsewhere in this Agreement, all written communications sent by the parties may be by U.S. mail, e-mail or by fax, and shall be addressed as follows:
To City: [insert name of department] To Artist: [insert Artist’s name]
[insert contact person] [insert contact person]
[insert address] [insert address]
[insert e-mail address] [insert e-mail address]
[insert fax number] [insert fax number]
Any notice of default must be sent by registered mail.
25. Ownership of Results and Risk of Loss
a. Title Transfer. Except in the case of early termination of this Agreement, title to the Artwork shall transfer from Artist to City upon the Commission’s Final Acceptance of the Artwork. Title transfer shall be self-executing upon Commission’s Final Acceptance. Artist will cooperate in providing to City any title transfer documents City may request or require during or after the Term of this Agreement.
b. Risk of Loss. The risk of loss or damage to the Artwork shall be borne solely by Artist until Final Acceptance of the Artwork by the Commission. Artist shall take steps to protect the Artwork from loss or damage. The Commission staff shall make a good faith effort to inspect the Artwork within 15 days after completion so that the Commission can approve the Artwork by resolution in a timely fashion.
c. Ownership of Documents. Conceptual Design, Design Development Documents, Construction Documents, Samples, Mock-ups and all other documents prepared and submitted by Artist to the Commission pursuant to this Agreement shall belong to the Commission. Artist may retain originals of such documents and items and provide copies to City.
26. Intellectual Property and Publicity Rights
a. Copyright. Subject to usage rights and licenses granted to City hereunder, Artist shall retain all 17 U.S.C. §106 copyrights in all original works of authorship produced under this Agreement. Artist’s copyright shall not extend to predominantly utilitarian aspects of the Work, such as landscaping elements, furnishings, or other similar objects. If Artist is comprised of two or more individual persons, the individual persons shall be deemed joint authors of the Work.
b. City’s Intellectual Property License. Artist grants to City, and to City’s agents, authorized contractors and assigns, an unlimited, non-exclusive and irrevocable license to do the following with respect to the Work, the Artwork, and any original works of authorship created under this Agreement, whether in whole or in part, in all media (including electronic and digital) throughout the universe:
(1) Implementation, Use and Display. City may use and display the Work (to the extent the Work includes graphic representations or models) and the Artwork. To the extent the Work involves design elements that are incorporated by City into the design of the Site, City may implement such elements at the Site.
(2) Reproduction and Distribution. City may make and distribute, and authorize the making, display and distribution of, photographs and other 2-dimensional reproductions. City may use such reproductions for any City-related purpose, including advertising, educational and promotional materials, brochures, books, flyers, postcards, print, broadcast, film, electronic and multimedia publicity, gifts for the Commission benefactors, documentation of City’s Civic Art Collection, and catalogues or similar publications. City shall ensure that such reproductions are made in a professional and tasteful manner, in the sole and reasonable judgment of the Commission. The proceeds from the sale of any such reproductions shall be used to maintain and support City’s Civic Art Collection or for any other public purposes that City deems appropriate. The license granted hereunder does not include the right to create 3-dimensional reproductions on items such as tote-bags, T-shirts, coffee mugs and similar merchandise. Such reproductions may only be created pursuant to separate license agreements with Artist.
(3) Public Records Requests. Any documents provided by Artist to City are public records and City may authorize third parties to review and reproduce such documents pursuant to public records laws, including the San Francisco Sunshine Ordinance and California Public Records Act.
c. Third Party Infringement. The Commission is not responsible for any third party infringement of Artist’s copyright and not responsible for protecting the intellectual property rights of Artist.
d. Credit. Artist hereby agrees that all formal references to the Artwork and any reproductions of the Artwork in any form shall include the following credit: “Collection of the City and County of San Francisco, San Francisco Arts Commission.” City shall credit Artist for the Artwork upon publication of any two dimensional reproductions of the Artwork.
e. Publicity. City shall have the right to use Artist’s name, likeness, and biographical information, in connection with the display or reproduction and distribution of the Artwork including all advertising and promotional materials regarding City or the Commission. Artist shall be reasonably available to attend any inauguration or presentation ceremonies relating to the public dedication of the Artwork.
f. Trademark. In the event that City’s use of the Artwork creates trademark, service mark or trade dress rights in connection with the Artwork, City shall have an exclusive and irrevocable right in such trademark, service mark, or trade dress.
g. Unique. Artist warrants that the design of the Artwork as expressed in the Proposal is an edition of one, and that neither Artist not Artists’ agents will execute or authorize another to execute another work of the same or substantially similar image, design, dimensions and materials as the Artwork. Artist may create works that utilize or incorporate various individual art elements that comprise the Artwork, so long as the work utilizing or incorporating such individual elements (1) does not consist predominantly of such elements (2) is not the same or substantially similar in image, design, dimensions and materials as the Artwork, and (3) is not displayed in an environment that is the same or substantially similar to the environment in which the Artwork is to be displayed at the Site. This warranty shall continue in effect for a period consisting of the life of Artist plus 70 years or for the duration of the Artwork’s copyright protected status, whichever is longer, and shall be binding on Artist and Artist’s heirs and assigns. In the case where Artist is comprised of two or more individual persons or a group of people, the measuring life shall be the life of the last surviving individual person comprising Artist. Recognizing that City has no adequate remedy at law for Artist’s violation of this warranty, Artist agrees that, in the event Artist breaches this warranty, City shall be entitled to enjoin Artist’s breach. Nothing hereunder shall be construed to constrain Artist from creating posters, notecards, or other reproductions of the Artwork.
h. Resale Royalty. If City sells the Artwork as a fixture to real property, and if the resale value of the Artwork is not itemized separately from the value of the real property, the parties agree that the resale price of the Artwork shall be presumed to be less than the purchase price paid by City under this Agreement. Thus, City has no obligation to pay resale royalties pursuant to California Civil Code §986 or any other law requiring the payment of resale royalties. If City sells the Artwork as an individual piece, separate from or itemized as part of a real property transaction, City shall pay to Artist a resale royalty to the extent required by law, based upon the sale price of the Artwork.
27. Audit. Artist shall maintain accurate books and records relating to this Agreement and the Services, including and accounting records copies of all invoices. Artist shall make such books and records available to the City for review and audit for at least three (3) years after termination of this Agreement, at a location that is readily accessible to the City.
28. No Employees; No Assignment or Subcontracting. The Services are personal in nature and shall be performed by Artist individually and without the assistance of any employee, agent, subcontractor or any other person or entity. Neither this Agreement nor any duties or obligations hereunder may be assigned, subcontracted or delegated by Artist without the prior written consent of the City.
29. Notification of Limitations on Contributions. This paragraph applies if this contract is in excess of $50,000 over a 12-month period or less and is for: (1) personal services; or (2) the selling or furnishing of any material, supplies or equipment; or (3) any combination of personal services and the selling or furnishing of any material, supplies or equipment. San Francisco Campaign and Governmental Conduct Code (the “Conduct Code”) Section 3.700 et. seq., and San Francisco Ethics Commission Regulations 3.710(a)-1 – 3.730-1, prohibit the public officials who approved this contract from receiving: (1) gifts, honoraria, emoluments or pecuniary benefits of a value in excess of $50; (2) any employment for compensation; or (3) any campaign contributions for any elective office for a period of up to six years from individuals and entities who are “public benefit recipients” of the contract. Public benefit recipients of the contract are: (1) the individual, corporation, firm, partnership, association, or other person or entity that is a party to the contract; (2) an individual or entity that has a direct 10% equity, or direct 10% participation, or direct 10% revenue interest in that party at the time the public benefit is awarded; or (3) an individual who is a trustee, director, partner or officer of the contracting party at the time the public benefit is awarded.
Artist understands that any public official who approved this contract may not accept campaign contributions, gifts, or future employment from Artist except as provided under the Conduct Code. Artist agrees to notify any other individuals or entities that may be deemed “public benefit recipients” under the Conduct Code because of this contract. Upon request, Artist agrees to furnish, before this contract is entered into, such information as any public official approving this contract may require in order to ensure such official’s compliance with the Conduct Code. Upon request, the City agrees to provide, before this contract is entered into, Artist with a list of public officials who, under the Conduct Code, approved this contract. Failure of any public official who approved this contract to abide by the Conduct Code shall not constitute a breach by either the City or Artist of this contract. Notwithstanding anything to the contrary in this contract, neither party shall have the right to terminate the contract due to any failure by the other party to provide the information described in this paragraph.
30. Nondiscrimination. In the performance of this Agreement, Artist agrees not to discriminate against any employee, City and County employee working with such contractor or subcontractor, applicant for employment with such contractor or subcontractor, or against any person seeking accommodations, advantages, facilities, privileges, services, or membership in all business, social, or other establishments or organizations, on the basis of the fact or perception of a person’s race, color, creed, religion, national origin, ancestry, age, height, weight, sex, sexual orientation, gender identity, domestic partner status, marital status, disability or Acquired Immune Deficiency Syndrome or HIV status (AIDS/HIV status), or association with members of such protected classes, or in retaliation for opposition to discrimination against such classes. Artist shall fully comply with all applicable provisions of Chapters 12B and 12C of the San Francisco Administrative Code, which are hereby made a part of this Agreement as though fully set forth herein. Artist’s failure to so comply shall be deemed a material breach of this Agreement, and Artist shall be liable for, a penalty of fifty dollars ($50) for each person for each calendar day during which such person was discriminated against in violation of the provisions of this Agreement. Any such penalty shall be payable upon demand and may be set off against any amounts due to Artist under this Agreement or under any other agreement with City. As a condition hereto, Artist shall execute the “Chapter 12B Declaration: Nondiscrimination in Contracts and Benefits” (form HRC-12B-101) with supporting documentation and secure the approval of the form by HRC.
31. MacBride Principles—Northern Ireland. Pursuant to San Francisco Administrative Code Section 12F.5, the City and County of San Francisco urges companies doing business in Northern Ireland to move towards resolving employment inequities, and encourages such companies to abide by the MacBride Principles. The City and County of San Francisco urges San Francisco companies to do business with corporations that abide by the MacBride Principles. By signing below, the person executing this agreement on behalf of Artist acknowledges and agrees that he or she has read and understood this section.
32. Tropical Hardwood and Virgin Redwood Ban. Pursuant to Section 804(b) of the San Francisco Environment Code , the City and County of San Francisco urges contractors not to import, purchase, obtain, or use for any purpose, any tropical hardwood, tropical hardwood wood product, virgin redwood or virgin redwood wood product.
33. Drug-Free Workplace. Artist acknowledges that pursuant to the Federal Drug-Free Workplace Act of 1989, the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited on City premises. Artist agrees to comply with such Act. Any violation of this Section shall be deemed a material breach of this Agreement.
34. Resource Conservation. Artist shall comply in good faith with Chapter 5 of the San Francisco Environment Code (“Resource Conservation”) , which is hereby made a part of this Agreement as though fully set forth herein. Artist’s failure to so comply shall be deemed a material breach of this Agreement, and Artist shall be liable for liquidated damages for each violation in an amount equal to the greater of Artist’s net profit under this Agreement or 5% of the total amount of this Agreement. Any such liquidated damages shall be payable upon demand and may be set off against any amounts due to Artist under this Agreement or under any other agreement with City.
35. Sunshine Ordinance. Artist understands that under Section 67.24(e) of San Francisco Administrative Code, contracts, contractors' bids, responses to requests for proposals and all other records of communications between the City and persons or firms seeking contracts, must be open to public inspection immediately after a contract has been awarded. All information provided by Artist which is covered by that ordinance (as it may be amended) will be made available to the public upon appropriate request.
36. Prohibition on Political Activity with City Funds. In accordance with San Francisco Administrative Code Chapter 12.G, Artist may not participate in, support, or attempt to influence any political campaign for a candidate or for a ballot measure (collectively, “Political Activity”) in the performance of the services provided under this Agreement. Artist agrees to comply with San Francisco Administrative Code Chapter 12.G and any implementing rules and regulations promulgated by the City’s Controller. The terms and provisions of Chapter 12.G are incorporated herein by this reference. In the event Artist violates the provisions of this section, the City may, in addition to any other rights or remedies available hereunder, (i) terminate this Agreement, and (ii) prohibit Artist from bidding on or receiving any new City contract for a period of two (2) years.
37. Preservative-treated Wood Containing Arsenic. As of July 1, 2003, Artist may not purchase preservative-treated wood products containing arsenic in the performance of this Agreement unless an exemption from the requirements of Chapter 13 of the San Francisco Environment Code is obtained from the Department of the Environment under Section 1304 of the Code. The term "preservative-treated wood containing arsenic" shall mean wood treated with a preservative that contains arsenic, elemental arsenic, or an arsenic copper combination, including, but not limited to, chromated copper arsenate preservative, ammoniacal copper zinc arsenate preservative, or ammoniacal copper arsenate preservative. Artist may purchase preservative-treated wood products on the list of environmentally preferable alternatives prepared and adopted by the Department of the Environment. This provision does not preclude Artist from purchasing preservative-treated wood containing arsenic for saltwater immersion. The term "saltwater immersion" shall mean a pressure-treated wood that is used for construction purposes or facilities that are partially or totally immersed in saltwater.
[If the contract will involve a contractor providing services involving direct supervision of minors, insert the following section. Supervision includes oversight responsibilities at City parks, playgrounds, recreational centers or beaches. Otherwise, §31 should read "Left Blank by Agreement of the Parties."]
38. Supervision of Minors. Contractor shall comply with California Penal Code section 11105.3 and request from the Department of Justice records of all convictions or any arrest pending adjudication involving the offenses specified in Welfare and Institution Code section 15660(a) of any person who applies for employment or volunteer position with Contractor in which he or she would have supervisory or disciplinary power over a minor under his or her care.
If Contractor is providing services at a City park, playground, recreational center or beach (separately and collectively, "Recreational Site"), Contractor shall not hire any person for employment or volunteer position to provide those services if that person has been convicted of any offense that was listed in former Penal Code section 11105.3 (h)(1) or 11105.3(h)(3).
If Contractor hires an employee or volunteer to provide services to minors at any location other than a Recreational Site, and that employee or volunteer has been convicted of an offense specified in Penal Code section 11105.3(c), then Contractor shall comply with that section and provide written notice to the parents or guardians of any minor who will be supervised or disciplined by the employee or volunteer not less than ten (10) days prior to the day the employee or volunteer begins his or her duties or tasks. Contractor shall provide City with a copy of any such notice at the same time that it provides notice to any parent or guardian.
Contractor acknowledges and agrees that failure by Contractor to comply with any provision of this section of the Agreement shall constitute an Event of Default.
39. Bonds
a. Labor and Materials Bond. If specified in a subsequent modification, either (1) the labor and materials costs associated with construction are expected to exceed $25,000 and this Agreement is for a “public work” as defined by California Civil Code §3100, or (2) a bond is required in the Commission’s discretion. In either case, Artist is required to obtain a payment bond in the amount specified in a subsequent modification. Such bond must include such terms and conditions as are required by City’s Risk Manager.
b. Performance Bond. Where appropriate, City may require that Artist obtain a performance bond in an amount specified by City. Such bond must include such terms and conditions as are required by City’s Risk Manager.
c. The bonds shall name as dual obligees Artist, City and County of San Francisco, and the specific project. In the event of Artist or any of Artist’s subcontractors’ failure to perform, Artist shall assign all rights under any Performance and Payment or Labor and Materials bond in favor of City.
40. No Waiver. Any failure to enforce any right or to require performance of any provision of this Agreement shall not be considered a waiver of such right or performance.
41. Modifications. This Agreement may not be modified, nor may compliance with any of its terms be waived, except by written instrument executed by each party hereto.
42. Administrative Remedy. If a dispute occurs as to the meaning hereof, then prior to resort to any other legal remedy, such dispute shall be resolved by the City’s Purchasing Division.
43. California Law; Venue. This Agreement shall be governed by the laws of California. The venue for all litigation or other disputes relative to this Agreement shall be San Francisco.
44. Construction. Section headings are for reference only and shall not be used to interpret this Agreement.
45. Entire Agreement. This Agreement contains the entire agreement between the parties, and supersedes all other oral or written provisions. The attached Appendices A and B are a part of this Agreement.
46. Compliance with Laws. Artist shall comply with the City’s charter, codes, ordinances and regulations and with applicable state and federal laws and regulations (including the Americans with Disabilities Act), as they may be amended from time to time.
47. Severability. If any provision hereof is found to be invalid or unenforceable, such finding shall not affect the validity of any other provision hereof; and such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties.
48. Survival. The following provisions hereof shall survive termination of this Agreement: 3, 7, 8, 9, 10, 11, 13, 18, 19, 20, 21, 25, 26, 27 through 29, and 38 through 46.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first referenced above.
CITY
Recommended by:
Signature for Department
Printed Name
Title and Department
Approved as to Form:
Dennis J. Herrera
City Attorney
By
Deputy City Attorney
Approved:
Director,
Office of Contract Administration
ARTIST
I have read and understood paragraph 24, the City’s statement urging companies doing business in Northern Ireland to move towards resolving employment inequities, encouraging compliance with the MacBride Principles, and urging San Francisco companies to do business with corporations that abide by the MacBride Principles.
____________________________________
Signature
____________________________________
Printed Name
____________________________________
Social Security Number
Appendix A
Services to be Provided by Artist
Phase I
Conceptual Design of Artwork
1. Authorization. Phase I has been authorized by Arts Commission Resolution Number [INSERT NUMBER].
2. Scope of Work.
a) Artist shall deliver a Proposal for the Artwork (“Proposal”). The Proposal shall include drawings (in plan and elevation) and/or 3-dimensional models, proposed materials and samples, and a written description of the Artwork in sufficient detail that Artist’s design intent is clearly expressed.
b) Proposal shall reflect the requirements of the Client and Commission, as expressed in the Request for Qualifications and as further discussed in communications with the Commission, Client and Architect. It is Artist’s responsibility to coordinate Artist’s Proposal and Conceptual Design Documents with the Architect’s design for the Site.
c) Proposal shall include a Budget for the cost of design, fabrication, transportation and installation of the Artwork. The Budget shall include documentation of the sources and/or assumptions upon which the Budget figures are based.
d) Artist shall attend project meetings and make presentations to City staff, Architects, Commissions, and other individuals and organizations, as needed. Artist agrees to collaborate closely with Architect through in-person meetings and other necessary means of communication to allow Architect to thoroughly integrate the Proposal into architectural conceptual presentation drawings.
3. Schedule of Deliverables. Proposal is due on or before [INSERT DATE].
4. Compensation. Artist’s compensation for Phase I shall be [INSERT AMOUNT]. Such compensation shall cover all of Artist’s costs and fees for Phase I.
5. Insurance Requirements. Artist shall obtain the following insurance before commencement of Phase I:
Automobile Liability Insurance in the amount of $__________.
6. Payment Schedule. [DESCRIBE MILESTONES AND TIMING OF PAYMENT].
7. Other Requirements:
Appendix A
Services to be Provided by Artist
Phase II
Design Development Documents
1. Authorization. Phase II has been authorized by Arts Commission Resolution Number [INSERT NUMBER].
2. Term of Agreement. The Term of this Agreement is extended to [INSERT DATE].
3. Scope of Work.
a) Artist shall deliver Design Development Documents. Design Development Documents shall incorporate the further development and refinement of the Proposal developed under Phase I, including the input of the Commission, Client, and Architect. It is Artist’s responsibility to coordinate the Design Development Documents for the Artwork with the Architect’s design development and/or construction documents for the Site.
b) Design Development Documents shall reflect a Proposal that continues to express the artistic intent of the Conceptual Design Documents and satisfies the requirements of the Commission and Client in accordance with Contract Documents approved in Phase I.
c) Artist shall provide an updated Budget for the design, fabrication, transportation and installation of the Artwork, and provide written estimates and other documentation on the sources and/or assumptions upon which the Budget figures are based.
d) Artist shall review Architect’s design development documents to ensure accurate integration of Artist’s design into the Site and provide the Commission and Architect with written comments and/or corrections.
e) Artist shall deliver a schedule describing Artist’s specific timelines for completing the Work.
f) Artist shall deliver a General Maintenance Plan for the Artwork.
g) Artist shall attend project meetings and make presentations to City staff, Architects, Commissions, and other individuals and organizations, as needed. Artist agrees to collaborate closely with Architect through in-person meetings and other necessary means of communication to allow Architect to thoroughly integrate the Artwork into architectural presentation drawings. Artist shall review architectural presentation drawings and related design material for accuracy of the integration of the proposed Artwork within the Site. Artist shall provide written comments on the accuracy of the Architect’s documents to the Commission and Architect.
h) Artist shall deliver all or any Work.
4. Schedule of Deliverables.
Deliverable Due Date
Design Development Documents
Budget
Description of Maintenance Requirements
Documentation
5. Compensation. Artist’s compensation for Phase II shall be [INSERT AMOUNT]. Such compensation shall cover all of Artist’s costs and fees for Phase II.
6. Insurance and/or Bond Requirements. Artist shall obtain the following insurance and/or bonds before commencement of Phase II. [INSERT INSURANCE REQUIREMENTS]
7. Payment Schedule. [DESCRIBE MILESTONES AND TIMING OF PAYMENT]
8. Other Requirements (i.e., liquidated damages):
Appendix A
Services to be Provided by Artist
Phase III
Construction Documents
1. Authorization. Phase III has been authorized by Arts Commission Resolution Number [INSERT NUMBER].
2. Term of Agreement. The Term of this Agreement is extended to [INSERT DATE].
3. Scope of Work.
a) Artist shall deliver Construction Documents for construction of the Proposal as approved under Phase II, which must be signed and stamped by design professionals licensed in the State of California, as required by the California Uniform Building Code and any San Francisco amendments to the Building Code.
b) Construction Documents shall reflect the artistic intent of the Proposal as expressed in the Contract Documents produced and approved under Phase II, and as discussed and generally agreed upon in Artist’s communications with the Commission.
c) Artist shall review Architect’s Construction Documents for accuracy of the integration of Artist’s Proposal within the Site and provide the Commission and Architect with written comments and/or corrections.
d) Artist shall deliver Mock-ups and Samples, as required by Commission or its staff.
e) Artist shall attend project meetings and make presentations to City staff, Architects, Commissions, and other individuals and organizations, as needed. Artist agrees to collaborate closely with Architect through in-person meetings and other necessary means of communication to allow Architect to thoroughly integrate the final design into architectural conceptual presentation drawings. Artist shall review Architect’s conceptual drawings and related design material for accuracy of the integration of the final design within the Site. Artist shall provide written comments on the accuracy of the Architect’s documents to the Commission and Architect.
4. Schedule of Deliverables.
Deliverable Due Date
Construction Documents
Mock-ups
Documentation
5. Compensation. Artist’s compensation for Phase III shall be [INSERT AMOUNT]. Such compensation shall cover all of Artist’s costs and fees for Phase III.
6. Insurance and/or Bond Requirements. Artist shall obtain the following insurance and/or bonds before commencement of Phase III:
Professional Liability Insurance for design professionals in the amount of $____________.
7. Payment Schedule. [DESCRIBE MILESTONES AND TIMING OF PAYMENT]
8. Other Requirements (i.e., liquidated damages):
Appendix A
Services to be Provided by Artist
Phase IV
Fabrication of Artwork
1. Authorization. Phase IV has been authorized by Arts Commission Resolution Number [INSERT NUMBER].
2. Term of Agreement. The Term of this Agreement is extended to [INSERT DATE].
3. Scope of Work.
a) Artist shall fabricate the Artwork in accordance with all Contract Documents approved by the Commission through Phase III.
b) Shop Drawings. Artist shall deliver Shop Drawings as needed for framing and attachment hardware, produced by Artist’s fabricator. The Shop Drawings shall be signed and stamped by the fabricator’s structural engineer and by Artist’s structural engineer, as required by the California Uniform Building Code and any San Francisco amendments to the Building Code.
c) Transportation Plan. Artist shall deliver a written list of the workers, vehicles, and equipment that will be involved in the transportation of the Artwork to the Site.
d) Installation Map. Artist shall deliver a numbered map indicating location and sequence of installation and evidence that Artist has numbered the Artwork and its individual components to correspond with the Installation Map.
4. Schedule of Deliverables.
Deliverable Due Date
Completed Fabrication of Artwork
Shop Drawings
Transportation Plan
Installation Map
5. Compensation. Artist’s compensation for Phase IV shall be [INSERT AMOUNT]. Such compensation shall cover all of Artist’s costs and fees for Phase IV.
6. Insurance and/or Bond Requirements. Artist shall obtain the following insurance and/or bonds before commencement of Phase IV:
Fine Arts Insurance in the amount of $__________.
a) Labor and Materials Bond in the amount of $________.
b) Performance and Payment Bond in the amount of $_________.
7. Payment Schedule. [DESCRIBE MILESTONES AND TIMING OF PAYMENT]
8. Other Requirements (i.e., liquidated damages):
Appendix A
Services to be Provided by Artist
Phase V
Transportation and Installation of Artwork
1. Authorization. Phase V has been authorized by Arts Commission Resolution Number [INSERT NUMBER].
2. Term of Agreement. The Term of this Agreement is extended to [INSERT DATE].
3. Scope of Work.
a) Artist shall provide for the transportation of the Artwork in accordance with the Transportation Plan approved by the Commission in Phase IV. Artist shall not transport the Artwork until access to the Site has been approved and scheduled by the Commission in coordination with the Client. Artist shall prepare the Artwork for transportation in accordance with customary industry standards for the transportation of fine works of art, and in accordance with the following additional specifications:
[Insert specific art transport specifications, if any]
b) Artist shall install the Artwork in accordance with Contract Documents approved in Phase IV.
c) Artist shall consult with the Commission, the Project Construction Management Team and General Contractor prior to and during the installation of the Artwork. Artist shall coordinate Artist’s activities on site with the General Contractor through the Construction Management Team and/or the Commission staff.
d) Maintenance Documents. Artist shall deliver all information necessary for the Commission to properly care for and maintain the Artwork, including information regarding the physical make-up of the Artwork, methods and materials, and information about the artistic intent of Artist in the Design, Fabrication and Installation of the Artwork..
e) Photographic Documentation. Artist shall deliver a set of color transparencies and/or black and white photographs of the installed Artwork for the Commission’s Archives.
f) Artist is responsible for rental, erection and removal of all scaffolding, lifts, and all other equipment needed for installation. Artist shall supply all hardware and personnel necessary for installation. Artist is responsible for repairing or paying for the repair of any damage to the Site, the Artwork, or the work of other contractors to the extent such damage is caused by Artist, Artist’s agents, employees, subcontractors or contractors. At the completion of installation, Artist shall clean and restore the Site and the work area to the condition it was in at the beginning of installation.
g) Approval of Site: The preparation of the Site for installation of the Artwork shall be the responsibility of the General Contractor in accordance with a separate written agreement between City and the General Contractor. Where Artist’s Work is associated with that of the General Contractor, or any other contractor engaged by the City to do work on the Site, Artist shall examine the work of such other contractors and report in writing to the Commission any visible defect or condition preventing the proper execution of Artist’s Work. If Artist proceeds without giving notice, the Artist shall be held to have approved the work or material and the existing conditions, and shall be responsible for any defects in Artist’s own Work consequent thereon, and shall not be relieved of any obligation or any guarantee because of any such condition or imperfection. To the extent that any part of the Artist’s Work is to interface with work performed or installed by the General Contractor or other contractor engaged by City to perform work on the Site, Artist shall inspect and measure the in-place work and promptly report to the City any defect in such in-place work that will impede or increase the cost of Artist’s interface unless corrected. City and/or its authorized representatives will require the party responsible for the defective work to make corrections so as to conform to its contract requirements, or if the defect is the result of a default or omission in the contract documents, may issue a change order. If Artist fails to measure, inspect and/or report defects that are reasonably discoverable, all costs of accomplishing the interface shall be borne by Artist. The forgoing does not apply to latent defects. Artist shall report to City any latent defects in another contractor’s work at any time such defects become known. City or its authorized representatives shall promptly thereafter take such steps as may be appropriate. Any difference or conflict that may arise between Artist and the General Contractor, or other contractors engaged by City to perform work on the Site, shall be adjusted as determined by City, its agents, or its authorized representatives when necessary to facilitate the work of Artist and/or other contractors or workers. No damages or claims by Artist will be allowed other than an extension of time for the completion of Work. Such an extension will be for the period of time City shall consider Artist to have been delayed in the completion of Work by reason of the work of other contractors or workers.
4. Schedule of Deliverables.
Deliverable Due Date
Transportation of Artwork
Installation of Artwork
Installation Documentation
Maintenance Documents
Photographic Documentation
5. Compensation. Artist’s compensation for Phase V shall be [INSERT AMOUNT]. Such compensation shall cover all of Artist’s costs and fees for Phase V.
6. Insurance and/or Bond Requirements. Artist shall obtain the following insurance and/or bonds before commencement of Phase V:
Commercial General Liability Insurance in the amount of $________________.
c) Labor and Materials Bond in the amount of $________.
d) Performance and Payment Bond in the amount of $_________.
7. Payment Schedule. [DESCRIBE MILESTONES AND TIMING OF PAYMENT]
8. Other Requirements (i.e., liquidated damages):
Appendix B
Artist’s Approved Costs
[List, as applicable:]
Personnel or Hourly Rate
Flat rate for specified period (e.g., monthly)
Rate for use of Artist’s equipment, if applicable
Rates for faxes (sending only), mileage, etc.
Actual costs for Artist meals accommodations, long distance and cellular phone charges, postage, vehicle rental, etc., subject to the approval of City.
Cost of any goods or materials to be provided by Artist.
Any other applicable rates or charges under the Agreement.