CITY OF SAN MATEO CALL FOR ARTISTS REQUEST FOR QUALIFICATIONS FOR PUBLIC ART INSTALLATIONS

Transcription

1 CITY OF SAN MATEO CALL FOR ARTISTS REQUEST FOR QUALIFICATIONS FOR PUBLIC ART INSTALLATIONS RFQ Issue Date: October 21, 2014 Proposal Due Date: December 16, 2014 City of San Mateo 330 West 20 th Avenue San Mateo, CA Kathy Kleinbaum Senior Management Analyst City Manager s Office kkleinbaum@cityofsanmateo.org (650)

2 REQUEST FOR QUALIFICATIONS FOR A PUBLIC ART INSTALLATION BACKGROUND The City of San Mateo is a community of approximately 98,000 people located on the San Francisco Peninsula. In 2005, the City adopted the Art in Public Places ordinance, which requires new development projects either to install publicly visible art as part of the project or contribute a percentage of the cost of the project for the Art in Public Places fund. The fund finances the acquisition of public art by the City in order to promote cultural and artistic expression and to improve the environment, image and character of the community. The program is administered by the Civic Arts Committee (CAC), a six-person, Council-appointed advisory committee. CALL FOR ARTISTS This RFQ solicits submittals of qualifications from artists who would be willing to work with the CAC to design or to select an existing work of art to be funded by this program and placed at Gateway Park, a prominent location within the City. Interested artists are invited to submit a portfolio of their work. The selected artists will work with the CAC to either identify an existing work or to design a new work that is appropriate for the selected site. This process is designed to allow for the public art to be specifically tailored for the site context and to accommodate site specific considerations, such as view corridors, foundation requirements, and maintenance. The CAC may choose more than one artist to develop a proposal for the site. The selected artists will be granted a stipend of $3,000 during the proposal development period. The CAC will then select a finalist work of art for installation at the site. SITE Gateway Park is located at 800 East Third Avenue. The site within the park that is available for the installation of public art is located at the corner of South Humboldt and East Third Avenue and is highly visible for cars coming off of the Third Avenue/Downtown San Mateo exit ramp from Highway 101. The site is in a prominent corner of the park that is used for passive recreation and is adjacent to the San Mateo Creek. Please refer to Exhibit A of this RFQ for photographs of the site. Applicants are encouraged to visit the site. The exact art placement will be determined by the size and nature of the art selected. One important item to note is that the soil conditions at this site require that the public art be installed on a foundation with deep piers. As a result, the City will be responsible for providing the foundation for the final work of art and the artist will be responsible for providing design criteria for the foundation specific to the piece. Minimizing potential installation costs (i.e. the number of piers required) will be a key consideration for selecting the final piece of art for this site. STIPEND The CAC is willing to offer the selected artists a stipend of $3,000 to cover costs incurred while selecting and/or designing the public art and determining the installation requirements. This stipend is included in 2

3 the proposed budget but will be awarded to the artist regardless of whether the City ends up purchasing the work of art. BUDGET The budget for this public art to be installed at the Gateway Park site is not to exceed $60,000, which includes the artist stipend, fabrication, transportation to the site, and installation. The City will be responsible for the design and construction of the foundation for the piece. DESIGN GUIDELINES The selected artists will work with the CAC to select or design appropriate public art suitable for display to a wide and diverse audience. The public art should have meaning relative to its setting and take into account the rich history of San Mateo. It can either be a freestanding piece or integrated into the landscape as a component such as a fence, mural, sculpture or other element, but should be large enough to be seen from the street by vehicular and pedestrian traffic. The artwork should be of materials and construction that are resistant to theft, vandalism and deterioration and constructed to avoid expensive maintenance and repair. The art piece should be accessible and free from unsafe conditions or factors that could bear upon public liability and the safety of the community. The selected artwork will be required to comply with the ADA requirements in addition to related federal, state and local codes and the artist is encouraged to develop artwork sensitive to programmatic as well as physical accessibility issues. SELECTION CRITERIA The selection of artists shall be evaluated based on the CAC s assessment of their ability to create public art that meets the criteria set forth in the City of San Mateo Civic Arts Committee, Guidelines for Art in Public Places, Implementing Chapter of the City Of San Mateo Municipal Code, as follows: 1. Inherent Artistic Quality: The assessed aesthetic merit of the piece as a work of art, independent of other considerations. 2. Context of Artwork with Site: Works of art should consider the scale, material, form, and content with their surroundings. Consideration should be given to the architectural, historical, geographical and social/cultural context of the site. 3. Media: All forms of visual art may be considered. Works shall be permanently attached. 4. Permanence: Due consideration shall be given to the structural and surface soundness, and to inherent resistance to theft, vandalism and weathering. 5. Ability to Maintain: Significant consideration shall be given to the cost and amount of ongoing maintenance and/or repair anticipated, and the ability to provide adequate maintenance. 6. Public Safety and Accessibility: Each work shall be evaluated to ensure that it does not present a hazard to public safety and complies with all applicable building codes and accessibility requirements. 7. Diversity: The CAC is committed to acquiring art works that are reflective of diverse cultural communities and perspectives. The program shall also strive for diversity in style, scale, media and numbers of artists represented. 3

4 8. Duplication: To assure that the artwork will not be duplicated, the artist will be asked to warrant that the work is unique and an edition of one unless stated to the contrary in the contract. SUBMITTAL MATERIALS The following submittals are requested under this Request for Qualifications: 1. Artist s Resume 2. References (please submit a minimum of three) 3. Photos of prior works, including artist description of piece, dimensions of works, materials, project summary, and inspiration 4. Approach for public art at Gateway Park All submittals shall be sent electronically in PDF format. If your submittal does not meet the electronic formatting requirements, it may not be honored as an official submittal and may not be reviewed. The City shall determine which submittal packages are responsive and reserves the right to reject all incomplete proposals. Do not put application materials in notebooks or binders or send any materials not specifically requested as part of this application (e.g., drawings, videos, catalogs, etc.). They will not be considered as part of your application packet and will not be reviewed by the CAC. The City reserves the right to reject any or all proposals, to initiate an alternate selection process, or to reissue the RFQ. REVIEW PROCESS The CAC will select finalists and will work with them to select or design public art for the site. The finalists will be eligible for a stipend to cover this work. The final public art proposal must be reviewed by the Parks and Recreation Commission and approved by the City Council prior to the City committing to purchasing and installing the work. The City reserves the right to reject the public art proposal at this phase. RULES, TERMS AND CONDITIONS By submitting their qualifications, entrants grant the City of San Mateo the right to use the selected artist s work at the proposed site, as well as for advertising, promotion, fundraising, and for any other City purpose. You, the Artist, hereby affirmatively represent that you own all copyright rights without restriction or infringement on any third party rights to the artwork you submit for consideration. The submitted artwork proposal must not be copyrighted by any entities other than the person(s) submitting the artwork proposal. By entering, participants agree that City of San Mateo is not responsible for any incorrect information, whether caused by website users or by any equipment or programming, or by any technical or human error that may occur in the processing of submissions by the City of San Mateo, including but not limited to any misprints or typographical errors. 4

5 City of San Mateo will not be responsible for incomplete, defective, or unreadable entries or for failure to receive entries due to transmission failures or technical failures of any kind, whether originating with sender or City of San Mateo. Participants agree to be bound by these official Request for Qualifications rules and the decisions of CAC and the City Council. The invalidity or unenforceability of any provision of these rules shall not affect the validity or enforceability of any other provision. PRE-SUBMITTAL MEETING The City will host a pre-submittal meeting, at which attendance by proposing artists is optional, on November 7 th at 11:00 a.m. at Room C in San Mateo City Hall to answer any questions regarding the RFQ and/or submittal process. Please contact Kathy Kleinbaum (650) or at kkleinbaum@cityofsanmateo.org to RSVP and receive additional information. PROPOSAL TIMELINE Listed below is the proposal time line that outlines pertinent dates of which proposers should make themselves aware: RFQ issued Tuesday, October 21, 2014 Pre-submittal meeting Friday, November 7, 2014 at 11:00 a.m. Submittal Deadline Tuesday, December 16, 2014 at 5:00 p.m. Finalists to be selected by Civic Arts Committee February 2015 Development of site specific art proposal March 2015 to July 2015 Review and approval of art proposal August 2015 RFQ DUE DATE Submittals must be received no later than 5:00 p.m., December 16, Submittals should be ed to the attention of Kathy Kleinbaum, Senior Management Analyst, at kkleinbaum@cityofsanmateo.org with the subject line PUBLIC ART RFQ. Submittals should be in PDF form. Submittals of over 10 MB cannot be accepted via and must be sent either through a file sharing software program or by mail on a jump drive or other electronic format. Submittals received after the time and date specified will not be considered. COMPENSATION Compensation for this public arts project is not to exceed the proposed budget as described in this document, which includes the artist stipend during the design phase. Upon the artist selection and award of the project, the City shall negotiate a payment schedule with the Artist. Artists may propose changes to the proposed terms of the agreement (refer to Exhibit B) and the City will take any proposed changes into consideration when determining to whom to make the award. ARTISTS WAIVER The City of San Mateo will require the artist of the selected work to sign a waiver of rights pursuant to the Visual Artists Rights Act and the California Art Preservation Act. The waiver will grant the City the 5

6 right to remove, relocate, transport, repair, or restore the selected work of art as needed. A sample waiver is included as Exhibit C. ALL SUBMITALS WILL BECOME THE PROPERTY OF THE CITY OF SAN MATEO. ATTACHMENTS: EXHIBIT A: EXHIBIT B: EXHIBIT C: Photographs of Site Sample Agreement for Acquisition of Public Art Sample Artist Waiver 6

7 EXHIBIT A 1

8 EXHIBIT A 2

9 AGREEMENT FOR ACQUISITION OF PUBLIC ART (ARTIST NAME) THIS AGREEMENT is made and entered into as of the day of, 2015, by and between the CITY OF SAN MATEO, a charter city and municipal corporation of the State of California ("City"), and, ("Artist") (collectively, the Parties ). RECITALS WHEREAS, the provision of art in public places, whether in the form of freestanding pieces such as sculptures or memorials, architectural embellishments, or other forms incorporated into areas accessible to the public, is an essential component of any great city and makes that city more interesting and vibrant for its residents and visitors; and WHEREAS, the City desires to facilitate the provision of art in a public place; and WHEREAS, Artist has submitted a proposal to City and has affirmed its willingness and ability to perform such work; and WHEREAS, the City has selected the Artist to be commissioned to design, fabricate, create and install in a public place within the City an original and appropriate work of art, all as described in this Agreement; and WHEREAS, Artist has the necessary experience in providing professional services, skills, and advice related to producing a work of art; and WHEREAS, the Artist is qualified and able to perform the services, and is willing to accept the commission as described in this Agreement; and WHEREAS, the City desires to own and maintain such work of art as provided herein. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, the Parties agree as follows: 1. Scope of Work. City retains Artist to perform, and Artist agrees to render the services and work (the Art work ) that are defined in attached in the "Scope of Work" which is incorporated by this reference in accordance with this Agreement s terms and conditions. 2. Standard of Performance. While performing the work, Artist will exercise the reasonable professional care and skill customarily exercised by reputable members of Artist's profession practicing in the state of California, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 1

10 3. Term. Unless earlier terminated, the term of this Agreement will commence upon the date first above written and shall expire upon completion of the Work hereunder by Artist. 4. Schedule. Artist will adhere to the schedule set forth in the Scope of Work hereof, attached and incorporated by this reference; provided, that City will grant reasonable extensions of time for the performance of such Work occasioned by unusually lengthy governmental reviews of Artist s work product or other unavoidable delays occasioned by circumstances; provided, further, that such unavoidable delay will not include strikes, lockouts, work stoppages, or other labor disturbances conducted by, or on behalf of, Artist s officers or employees. Artist acknowledges the importance to City of City s project schedule and agrees to put forth its best professional efforts to perform the Work under this Agreement in a manner consistent with that schedule. City understands, however, that Artist s performance must be guided by sound practices with respect to the fabrication of the art work in order to maintain the integrity of the materials and ensure the safety of the art work. 5. Time is of the Essence. Time is of the essence for each and every provision of this Agreement. 6. Compensation. The total fee payable for the Work to be performed during this Agreement will be $, dollars. The compensation amount shall include any applicable sales tax for the City s purchase of the Artwork. No other compensation for the work will be allowed except for items covered by subsequent amendments to this Agreement. Payments shall be made to the Artist upon his or her submission of detailed statements of account to the City. The Artist may propose changes to the proposed terms of the agreement and the City will take any proposed changes into consideration when determining to whom to make the award. 7. Independent Contractor. Artist will perform the work in Artist's own way as an independent contractor and in pursuit of Artist's independent calling, and not as an employee of City. The persons used by Artist to provide services under this Agreement will not be considered employees of City for any purposes. 7.1 The payment made to Artist pursuant to the Agreement will be the full and complete compensation to which Artist is entitled. City will not make any federal or state tax withholdings on behalf of Artist or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Artist or its employees or subcontractors. Artist agrees to reimburse City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Artist or any agent, employee, or subcontractor of Artist for work done under this Agreement. At the City s election, City may deduct the reimbursement amount from any balance owing to Artist. 2

11 8. Subcontracting. Artist will not subcontract any portion of the Work without prior written approval of City Manager or his/her designee. If Artist subcontracts any of the work, Artist will be fully responsible to City for the acts and omissions of Artist's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Artist is for the acts and omissions of persons directly employed by Artist. 8.1 Notwithstanding the Artist s employment of a person or firm to perform a part of the work as permitted under this Agreement, the Artist shall remain responsible to the City for the faithful performance, when due, of the work, and no delegation or subcontracting of a part of the Work shall relieve the Artist of his or her duties under this Agreement. 8.2 Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Artist and City. Artist will be responsible for payment of subcontractors. Artist will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Artist's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 9. Other Consultants. The City reserves the right to employ other consultants in connection with the Work. 10. Indemnification. Artist will defend, indemnify and hold harmless City its elected and appointed officials, agents, and employees against any such claims, damages, losses and expenses including attorney fees arising out of Artist s performance of of the work, except where caused by the active negligence, sole negligence, or willful misconduct of City. Artist will defend City, its elected officials, agents and employees against any such claims. 11. Insurance. Artist will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the work by Artist or Artist s agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII." 11.1 Coverages and Limits. Artist will maintain the types of coverages and minimum limits indicated below. These minimum amounts of coverage will not constitute any limitations or cap on Artist's indemnification obligations under this Agreement. City, its elected and appointed officials, agents, and employees make no representation that the limits of the insurance specified to be carried by Artist pursuant to this Agreement are adequate to protect Artist. If Artist believes that any required insurance coverage is inadequate, Artist will obtain such 3

12 additional insurance coverage, as Artist deems adequate, at Artist's sole expense Commercial General Liability Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit Automobile Liability. $1,000,000 combined single-limit per accident for bodily injury and property damage Workers Compensation. If applicable, workers compensation coverage in at least the minimum statutory limits Additional Provisions. Artist will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: For Commercial General Liability Insurance and Automobile Liability Insurance, City, its elected and appointed officials, agents and employees will be named as additional insureds Artist will obtain occurrence coverage This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent pursuant to the Notice provisions of this Agreement Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Artist will furnish certificates of insurance and endorsements to City Failure to Maintain Coverage. If Artist fails to maintain any of these insurance coverages, then City will have the option to declare Artist in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Artist is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Artist or deduct the amount paid from any sums due Artist under this Agreement Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 4

13 11.6 Primary Coverage. For any claims related to the Work and this Agreement, the Artist s insurance coverage will be primary insurance with respect to City, its elected and appointed officials, agents and employees. Any insurance or self-insurance maintained by City for itself, its elected and appointed officials, agents and employees, will be in excess of Artist s insurance and not contributory with it Reduction in Coverage/Material Changes. Artist will notify City thirty (30) days prior to any reduction in any of the insurance coverage required pursuant to this Agreement or any material changes to the respective insurance policies. 12. Warranty. The Artist represents and warrants to the City that: he or she is the sole creator of the Art work, that the Artist has full power and authority to make this Agreement; the Art work does not infringe upon any copyright or violate any property right or other intellectual property rights; and, no lien or encumbrance exists against the Art work and that following the transfer of title to the Art work to the City, no individual or entity will have any right or interest in the Art work that is prior or superior to the City s right and interest. The Artist further represents and warrants that the Art work, as fabricated and installed, will be structurally sound and free of defects in material and workmanship, including any defects consisting of inherent vice or qualities which cause or accelerate deterioration of the Art work, and shall be designed so as routinely not to require extensive or extraordinary maintenance or conservation measures. These warranties shall be in effect for a period of two (2) years after final acceptance of the Art work and transfer of ownership to the City. If, within the time warranty period, the Art work exhibits any structural or cosmetic defect or flaw in violation of the Artist s warranty, the Artist shall repair the Art work or replace any defective component of the Art Work at no cost to the City. All repairs or cures to defects shall be consistent with professional conservation standards. A recommended Maintenance Schedule from the Artist is included below as part of this Scope of Work. Any required maintenance of the Art work shall be carried out by the City with the intention of protecting the value, integrity, and authenticity of the Art work. After the expiration of the warranty period, the City will make a reasonable effort to consult with and gain the approval of the Artist in all matters concerning repairs and restoration of the Art work. 5

14 13. Ownership of Documents. All work product produced by Artist or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Artist or its agents, employees and subcontractors pursuant to this Agreement will be delivered to City pursuant to the termination clause of this Agreement. Artist will have the right to make one (1) copy of the work product for Artist s records. 14. Copyrights. The Artist in exchange for the compensation received from the City knowingly, voluntarily, and irrevocably hereby grants to the City of San Mateo, its officers, employees, agents, contractors and assigns, an unlimited, non-exclusive, royalty-free and irrevocable license (a) the right to use and publicly display the Artist s name, artwork, and corresponding written descriptions in all forms of media and in all manners, and (b) the right to make and distribute reproductions of the artwork, and (c) the right to prepare, make and distribute derivative works thereof, and (d) authorize the making, public display, and distribution of reproductions of the art work and derivative works thereof for reference, promotional, educational, scholarly, or any other City purpose. In addition to the rights expressly granted to the City by the Artist in this Agreement, Artist also hereby grants any and all rights set forth in the Submittal and Assignment Form, incorporated herein by this reference. The Artist certifies that the Art work created pursuant to this Agreement is a unique work of art and has not been and will not be substantially reproduced by the Artist without the prior written permission of the City. Should the Artist decide to reproduce the Art Work in an edition or in any other way, the Artist shall first obtain the written permission of the City. The Artist agrees to include on or in any form of reproduction of the Art Work initiated or authorized by the Artist, a credit to the City, stating that the Artwork was commissioned and owned by the City. 15. Waiver of Proprietary Rights for Art work Placed upon City Property. The provisions of this paragraph shall apply to modify Artist s rights of attribution and integrity as set out in the Visual Artists Rights Act, 17 U.S.C. 106A and 113(d) ("VARA"), the California Art Preservation Act, Cal. Civil Code 987 and 989 ("CAPA"), and any rights arising under United States federal or state law or under the laws of another country that convey rights of the same nature as those conveyed under VARA and CAPA, as against the City and its agents. The City has the absolute right to change, modify, remove, relocate, move, replace, transport, repair or restore the Art work from its original installation site located in Gateway Park in San Mateo, CA, in whole or in part, in City s sole discretion. The City shall make a reasonable attempt to notify the Artist in writing if for any reason the City intends to remove the Art work from the installation site and/or to relocate the Art work at a new site. The Artist may advise or consult with the City regarding any such removal or relocation. 6

15 Artist bears the sole responsibility for providing the City with any changes to the Artist s Address for Notice. Notice of changes must be mailed to the City of San Mateo, Community Development Director, Community Development Department, 330 West 20th Ave, City of San Mateo, CA Non-Destruction, Alteration, or Modification of the Art work. To the extent required by applicable federal law or other applicable laws and regulations, the City shall not intentionally destroy or modify the Artwork in any way whatsoever during the Artist s lifetime without first making a reasonable effort to locate and inform the Artist, and to obtain the Artist s written permission, if possible; however, this section shall not apply to modifications caused by the passage of time, the inherent nature of the materials or the result of conservation, lighting or placement in connection with public presentation. If any significant modification occurs to the Art work after final acceptance by the City, whether such change is intentional, unintentional, or malicious, and if the Artist makes a written request to the City that the Art Work no longer be represented as the work of the Artist, then the Art Work shall no longer be so represented. 17. Final Acceptance. Upon final acceptance, title to the Art work shall pass from the Artist and vest in the City. The Artist hereby transfers to the City title, and interest in and to the Art work, and all of the Artist s rights, except those expressly reserved by this Agreement. 18. Business License. Artist will obtain and maintain a City of San Mateo Business License for the term of the Agreement, as may be amended from time-to-time. 19. Maintenance of Records. Artist will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Artist will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Artist will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 20. Notices. The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Artist under this Agreement. For City: City of San Mateo 330 West 20 th Avenue City of San Mateo, CA (650) Attn: City Manager 7

16 For Artist: Name Title Address Phone No. Except as otherwise stated, all notices to be provided or that may be provided under this Agreement must be in writing and delivered by regular and certified mail. Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 21. Conflict of Interest. Artist, for Artist and on behalf of Artist s agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Artist further warrants that neither Artist, nor Artist s agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Artist will file with the City an affidavit disclosing this interest. 22. General Compliance with Laws. Artist will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Artist, or in any way affect the performance of the work by Artist. Artist will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Artist's work with all applicable laws, ordinances and regulations. 23. Discrimination and Harassment Prohibited. Artist will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 24. Termination. In the event of the Artist's failure to prosecute, deliver, or perform the work, City may terminate this Agreement for nonperformance by notifying Artist in writing pursuant to the notice provisions of this Agreement. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Artist pursuant to the notice provisions of this Agreement. Termination will be effective immediately upon notification. Artist has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Artist has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. 25. Covenants Against Contingent Fees. Artist warrants that Artist has not employed or retained any company or person, other than a bona fide employee working for Artist, to solicit or secure this Agreement, and that Artist has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct 8

17 from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 26. Claims And Lawsuits. By signing this Agreement, Artist agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Artist acknowledges that if a false claim is submitted to City by Artist, it may be considered fraud and Artist may be subject to criminal prosecution. Artist acknowledges that California Government Code sections et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Artist acknowledges that the filing of a false claim may subject Artist to an administrative debarment proceeding as the result of which Artist may be prevented to act as an Artist on any public work or improvement for a period of up to five (5) years. Artist acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 27. Jurisdiction and Venue. Any action at law or in equity brought by either of the Parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Mateo, State of California, and the Parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 28. Successors and Assigns. It is mutually understood and agreed that this Agreement will be binding upon the Parties and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Artist without the prior consent of City, which will not be unreasonably withheld. 29. Paragraph Headings. Paragraph headings as used herein are for convenience only and will not be deemed to be a part of such paragraphs and will not be construed to change the meaning thereof. 30. Waiver. The delay or inaction of any party in the pursuit of such party s remedies as set forth in this Agreement, or available by law, shall not operate as a waiver of any of that party s rights or remedies. 31. Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the provision shall be stricken, and all other provisions of this Agreement which can operate independently of such stricken provisions shall continue in full force and effect. 32. Entire Agreement. This Agreement, (including any other written document 9

18 referenced in it), the Request for Proposals, the Scope of Work, and the Submittal and Assignment Form, embody the entire agreement and understanding between the parties. In case of the conflict, the terms of the Agreement take precedence over the other documents. Neither this Agreement nor any of its provisions may be amended except in a writing signed by both parties. 33. Authority. The individuals executing this Agreement and the instruments referenced in it on behalf of Artist each represent and warrant that they have the legal power, right and actual authority to bind Artist to the terms and conditions of this Agreement. 34. Survival. The following provisions of this Agreement shall survive and be in full force and effect after the termination of this Agreement, for whatever cause: Parts 10, 12, 13, 14, 15, and 16, and the paragraphs thereunder. CITY: CITY OF SAN MATEO, a charter city and municipal corporation of the State of California 330 West 20 th Avenue San Mateo, CA Larry A. Patterson, City Manager ATTEST: APPPROVED AS TO FORM: Patrice M. Olds, City Clerk Gabrielle Whelan, Assistant City Attorney ARTIST: [NAME] [ADDRESS] **By: Printed Name: Title: 10

19 EXHIBIT C: SAMPLE WAIVER OF RIGHTS PURSUANT TO THE VISUAL ARTISTS RIGHTS ACT AND THE CALIFORNIA ART PRESERVATION ACT I, ( Artist ), have created the following artwork: to be installed in Gateway Park. The City of San Mateo has purchased the artwork with funds deposited into the Art in Public Places fund. The above-described work may be considered to be a work of visual art subject to the provisions of the federal Visual Artists Rights Act of 1990 and the California Art Preservation Act. I am an author of the work described herein, am authorized to waive the rights conferred by the Visual Artists Rights Act and the California Art Preservation Act, and am waiving my rights pursuant to the Visual Artists Rights Act of 1990 and to the California Art Preservation Act. This waiver does not extend to the rights of attribution conferred by 17 U.S.C. 106A(a)(1) or 106A(a)(2). The City of San Mateo has the absolute right to remove, relocate, transport, repair, or restore the sculpture entitled located in Gateway Park. Artist s Address for Notice: Artist is responsible for notifying the City of San Mateo of any changes to the Artist s Address for Notice by mailing notice to: City of San Mateo Community Development Department 330 W. 20 th Avenue San Mateo, CA Dated: (Artist s Signature) Q:\CDD\Civic Arts Committee\RFQ\Visual Arts Waiver - EXHIBIT C.docx