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HomeMy WebLinkAbout2009 CON CDC Blueink.com - Tile Project Art MuseumAGREEMENT BY AND BETWEEN COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND BLUEINK.COM, LLC THIS AGREEMENT is entered into this 20th day of August 2009, by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a community development commission (the "CDC"), and BLUEINC.COM, LLC (the "CONTRACTOR"). RECITALS WHEREAS, the CDC desires to employ an CONTRACTOR for the creation of an original tile project (the "Work") for National City's Art Museum. WHEREAS, the CDC has determined that the CONTRACTOR is a Limited Liability Company_and is qualified by experience and ability to perform the services desired by the CDC, and the CONTRACTOR is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONTRACTOR. The CDC hereby agrees to engage the CONTRACTOR and the CONTRACTOR hereby agrees to perform the services hereinafter set forth in accordance with all terms and conditions contained herein. The CONTRACTOR represents that all services required hereunder will be performed directly by the CONTRACTOR or under direct supervision of the CONTRACTOR. 2. PURPOSE. The CDC hereby commissions the CONTRACTOR and engages his services in the conceptualization, creation, design, production, transport, and installation of an original art project as generally described in Section 3 below. The CONTRACTOR hereby agrees to provide those services in conformance with the terms of this Agreement. 3. SCOPE OF SERVICES. The CONTRACTOR shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CDC for such services, except as authorized in advance by the CDC. The CDC may unilaterally, or upon request from the CONTRACTOR, from time to time reduce or increase the Scope of Services to be performed by the CONTRACTOR under this Agreement. Upon doing so, the CDC and the CONTRACTOR agree to meet in Revised August 2005 good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services, not to exceed a factor of 7% from the base amount. 4. PROJECT COORDINATION AND SUPERVISION. Brad Raulston is designated as the Project Coordinator for the CDC and will monitor the progress and execution of this Agreement. The CONTRACTOR shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONTRACTOR. Jen Lewin is designated as the Project Director for the CONTRACTOR. 5. DESCRIPTION OF THE WORK. The CDC and the CONTRACTOR agree that the Work will consist of an original custom 2005 Laser Harp and "The Moth" interactive display design similar in fabrication, cost, and complexity as shown in Attachment A, The CONTRACTOR agrees that the Work will be created specifically and exclusively for the CDC, that it will be the CONTRACTOR's own work, in the CONTRACTOR's style and of comparable quality to his other tile projects. 6. PHASES OF WORK: Under this commission the CONTRACTOR will complete the Work in the following phases: A. Concept Design. The CONTRACTOR shall create the conceptual design for the Work in the form of studies, sketches, drawings, clay studies of the concepts requested, and one composition maquette of the Work, all for approval by the CDC. The CONTRACTOR shall prepare a written description that shall include identification of materials, approximate dimensions, approximate weight and other pertinent information. The CONTRACTOR shall prepare a detailed Schedule of Performance (the "Schedule of Performance") for the subsequent phases of work, consistent with the milestones identified in Section 7. The CONTRACTOR will consult with the CDC as necessary to gain approval of the maquettes, materials, mounting methods and schedules. The CDC will collaborate with the CONTRACTOR and ensure the Concept Design meets all required code and safety requirements. The CDC will be responsible to create, manage and execute the "city requirements" activities such as installation drawings, permits, inspections, etc. Upon written approval of the maquette, materials, and schedules (collectively, the "Concept Design") by the CDC, this phase shall be complete. B. Full -Scale 2005 Laser Harp and "The Moth" interactive display design. Upon written approval of the Concept Design by the CDC, the CONTRACTOR shall create the full-size, detailed 2005 Laser Harp and "The Moth" interactive display design project for approval by the CDC. This approval will be done at the Kimball Park Recreation Center, or from photos and videos if preferred by the CDC. Upon written approval of the 2005 Laser Harp and "The Moth" interactive display design. 2 Public Art Release Agreement between CDC and Blueink.com, LLC, August 20, 2009 C. Fabrication Work. Upon written approval of the Full -Scale tile design by the CDC, the CONTRACTOR shall commence the tile making , fabrication processes and complete the Work for approval by the CDC. This approval will be done at the Fabrication, or from photos and videos if preferred by the CDC. Upon completion and written approval of the Work in mosaic tile, this phase shall be complete. D. Delivery and Installation. Upon completion and written approval of the Fabrication Work by the CDC, and upon completion of the components required for mounting, the CONTRACTOR shall deliver, or cause to have delivered, the Work to the site or to a location nearby designated by the CDC. It is agreed that the cost of delivery to the site shall be the responsibility of St. Clair Gallery and, not to exceed $1,800. It is further agreed that the CONTRACTOR will be responsible for the Work while in transit and will be responsible for completing any necessary repairs or adjustments to the Work upon arrival at the National City Art Center. 7. SCHEDULE. The Schedule of Performance for the Work to be prepared by the CONTRACTOR and approved by the CDC shall include the following milestones: A. Concept Design. Ready for Approval: 45 days, or upon recommendation by the National City Public Art Committee and subsequent approval by the City Council. B. Full -Scale rendering Ready for Approval: Concept Design Approval + Four (4) months C. Fabrication Work. Ready for Approval: Full -Scale Approval + Three (3) months D. Delivery and Installation. Ready for installation prior to September 15, 2009. Modifications to the Schedule of Performance may be made if agreed upon by both parties in writing. 8. FEES: The total fee and expenses due the CONTRACTOR for the Work shall be $15,000. This amount includes all fees and expenses incurred for the completed Work, including but not limited to all consultation and concept approval, one detailed full-sized 2005 Laser Harp and "The Moth" interactive display, fabrication, sealing, fabrication costs, process documentation, shipping and delivery, supervision of installation, and taxes. The CONTRACTOR shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment 3 Public Art Release Agreement between CDC and Blueink.com, LLC, August 20, 2009 under this Agreement, for inspection by the CDC and for furnishing of copies to the CDC, if requested. 9. APPROVALS AND PAYMENTS. The CDC will review the work at each phase. Written approval at each phase of work will be required before the subsequent phase begins. Payments, as described below, will be made upon approval of each phase of work and upon submittal of an appropriate invoice by the CONTRACTOR. A. Concept Design. Review and approval of the Conceptual Design is required before the CONTRACTOR begins the full-scale model of the art project. B. Delivery and Installation. Final payment in the not -to -exceed amount of $15,000 shall be made within thirty (days) of Work installation and final acceptance by the CDC. 10. RISK OF LOSS AND INSURANCE. The CONTRACTOR shall bear all risk of loss or damage to the Work until it is delivered and installed at the site. 11. EARLY TERMINATION. Notice of early termination shall be given in writing and shall state the grounds for termination and the CONTRACTOR retains all rights to use the art elsewhere. The following shall constitute grounds for early termination: A. Concept Design. If the CDC does not approve the Conceptual Design, this Agreement shall terminate and the CONTRACTOR shall retain the fee paid upon execution hereof. B. Pre -Fabrication. The CITY may terminate this Agreement at any time during the pre -fabrication phase of work. In that event, the CITY shall pay to the CONTRACTOR the pro rata portion of the payment for the full-scale pre fabrication phase in relation to the degree of the phase completed, but in no event shall the CONTRACTOR be obligated to refund any part of the payment prior to this phase. C. Fabrication Work. The CDC may terminate this Agreement at any time during the fabrication phase of work. In that event, the CONTRACTOR retains ownership and rights to the molds and any castings produced and the CDC shall pay to the CONTRACTOR the pro rata portion of the payment for the fabrication phase in relation to the degree of the fabrication phase completed, or the actual costs paid to the fabrication CONTRACTORs, whichever is greater and but not to exceed the scheduled payment for the fabrication work phase. In no event shall the CONTRACTOR be obligated to refund any part of the payments made prior to this phase. D. Delivery and Installation. The CDC may terminate this Agreement after completion and approval of the fabrication work but prior to installation. In that event, 4 Public Art Release Agreement between CDC and Blueink.com, LLC, August 20, 2009 however, if the CDC approved the Work at the completion of the fabrication phase of the work, full payment shall be due to the CONTRACTOR. E. Nonpayment. The CONTRACTOR shall have the right to terminate this Agreement only in the event that the CDC fails for a period of sixty (60) days, without cause, to pay to the CONTRACTOR any payment due. Such termination by the CONTRACTOR shall not preclude the CONTRACTOR from pursuing his remedies for collection of any payment due. F. Default by CONTRACTOR. The CDC may terminate this Agreement upon the failure of the CONTRACTOR to comply with the approved Schedule of Performance. A failure to comply with the Schedule of Performance shall occur when the CONTRACTOR fails to meet a performance milestone within forty-five (45) days of the approved date. G. Death or Incapacity of the CONTRACTOR. This Agreement shall terminate upon the death or incapacity of the CONTRACTOR. The CONTRACTOR's estate shall retain all payment made prior to such event, but shall be entitled to no further payments, nor bear any liability for the failure to complete the Work. The CDC shall be entitled to all written materials, maquettes, clay compositions, and the sculpture in progress upon such termination, and Section 10 shall survive such termination. 9. REPRODUCTIONS. The CONTRACTOR may create one set of reference castings at the CONTRACTOR's expense. No other three-dimensional reproductions of the Work, or portions thereof, shall be created without the express, written consent of both the CONTRACTOR and the CDC. 10. OWNERSHIP RIGHTS AND LICENSES. Ownership of all materials and concepts produced for the CDC under this Agreement, including but not limited to the completed Work, "molds," clay constructions, maquettes, and all rights to licensing and reproductions of the Work (except as expressly provided in Section 9 above), shall pass to and become the property of the CITY, once payment for that phase of work is made by the CDC. The CDC, at its option, will store all "molds" for future repairs. The CONTRACTOR shall retain the copyright to the Work, but shall exercise no rights thereto inconsistent with the provisions of this Section 10. The CONTRACTOR shall retain the right to approve all photographic documentation of the Work, where the Work is the primary subject, during the development and for a period of one year after installation, to be used in publications the CDC controls or authorizes, provided that such approval shall not be unreasonably withheld. The CONTRACTOR shall be credited in any and all materials and documents concerning the Work produced under the CDC or CDC's control. The CONTRACTOR shall retain the right to use images of the Firehouse and Work in the CONTRACTOR's materials, portfolio, and any other printed use (other than use for sale) the CONTRACTOR or his heirs authorize. 5 Public Art Release Agreement between CDC and Blueink.com, LLC, August 20, 2009 The CONTRACTOR hereby assigns to the CDC all rights to produce, give, sell, and distribute still or motion images and models or other likeness of any kind of the Work, the compensation for which is part of the fee described above, but shall exercise no rights thereto inconsistent with the provisions of this Section 10. The CDC agrees to provide appropriate credit to the CONTRACTOR on all such material. The CONTRACTOR agrees that the CDC may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium or method utilize the CONTRACTOR'S written work product for the CDC's purposes, and the CONTRACTOR expressly waives and disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to intellectual property and CONTRACTOR work. 11. REPAIRS. To the extent practical, all repairs and restorations made during the lifetime of the CONTRACTOR shall have the CONTRACTOR's approval. To the extent practical, the CDC shall give the CONTRACTOR the opportunity to perform the repairs and restoration at a reasonable fee. 12. PROCESS DOCUMENTATION. The CONTRACTOR shall document, photographically and in writing, the creative process and the production of the Work at various and appropriate stages and shall provide that documentation to the CDC at the time of installation of the Work in a form suitable as a basis for for use in an exhibit describing the creation of the Work. 13. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners or joint ventures with one another. Neither the CONTRACTOR nor the CONTRACTOR'S employees are employees of the CDC and are not entitled to any of the rights, benefits, or privileges of the CDC's employees, including but not limited to retirement, medical, unemployment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONTRACTOR and the CONTRACTOR'S employees, and it is recognized by the parties that a substantial inducement to the CDC for entering into this Agreement was, and is, the professional reputation and competence of the CONTRACTOR and its employees. Neither this Agreement nor any interest herein may be assigned by the CONTRACTOR without the prior written consent of the CDC. Nothing herein contained is intended to prevent the CONTRACTOR from employing or hiring as many employees, or subcontractors, as the CONTRACTOR may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONTRACTOR with its subcontractor(s) shall require the subcontractor to adhere to the applicable terms of this Agreement. 14. CONTROL. Neither the CDC nor its officers, agents or employees shall have any control over the conduct of the CONTRACTOR or any of the CONTRACTOR'S employees except as herein set forth, and the CONTRACTOR expressly agrees not to represent that the CONTRACTOR or the CONTRACTOR's 6 Public Art Release Agreement between CDC and Blueink.com, LLC, August 20, 2009 agents, servants, or employees are in any manner agents, servants or employees of the CDC, it being understood that the CONTRACTOR, its agents, servants, and employees are as to the CDC wholly independent contractors and that the CONTRACTOR's obligations to the CDC are solely such as are prescribed by this Agreement. 15. COMPLIANCE WITH APPLICABLE LAW. The CONTRACTOR, in the performance of the services to be provided herein, shall comply with all applicable State and Federal statutes and regulations, and all applicable ordinances, rules and regulations of the City of National City, whether now in force or subsequently enacted. The CONTRACTOR, and each of its subcontractors, shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 16. LICENSES, PERMITS, ETC. The CONTRACTOR represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The CONTRACTOR represents and covenants that the CONTRACTOR shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for the CONTRACTOR to practice its profession. 17. STANDARD OF CARE. A. The CONTRACTOR, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONTRACTOR's trade or profession currently practicing under similar conditions and in similar locations. The CONTRACTOR shall take all special precautions necessary to protect the CONTRACTOR's employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site B. Unless disclosed in writing prior to the date of this agreement, the CONTRACTOR warrants to the CITY that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONTRACTOR's professional performance or the furnishing of materials or services relating thereto. C. The CONTRACTOR is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONTRACTOR has been retained to perform, within the time requirements of the CDC, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONTRACTOR has notified the CDC otherwise, the CONTRACTOR warrants that all products, materials, processes or treatments identified in the project documents prepared for the CDC are reasonably commercially available. Any failure by the CONTRACTOR to use due diligence under this sub -paragraph will render the CONTRACTOR liable to the CDC for any increased costs that result from the CDC's later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 7 Public Art Release Agreement between CDC and Blueink.com, LLC, August 20, 2009 18. NON-DISCRIMINATION PROVISIONS. The CONTRACTOR shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONTRACTOR will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The CONTRACTOR agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. 19. CONFIDENTIAL INFORMATION. The CDC may from time to time communicate to the CONTRACTOR certain confidential information to enable the CONTRACTOR to effectively perform the services to be provided herein. The CONTRACTOR shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CDC. The CONTRACTOR shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 13, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONTRACTOR, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONTRACTOR without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONTRACTOR by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONTRACTOR shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CDC. In its performance hereunder, the CONTRACTOR shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. The CONTRACTOR shall be liable to CDC for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 20. INDEMNIFICATION AND HOLD HARMLESS. The CONTRACTOR agrees to defend, indemnify, and hold harmless the Community Development Commission of the City of National City, its officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONTRACTOR's negligent performance of this Agreement. 8 Public Art Release Agreement between CDC and Blueink.com, LLC, August 20, 2009 21. WORKERS' COMPENSATION. The CONTRACTOR shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar state or Federal acts or laws applicable; and shall indemnify, and hold harmless the CDC and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CDC or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONTRACTOR under this Agreement. 22. INSURANCE. The CONTRACTOR, at its sole cost and expense, shall purchase and maintain, and shall require its subCONTRACTOR's, when applicable, to purchase and maintain throughout the term of this agreement, the following insurance policies: ❑ A. If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). C. Commercial general liability insurance, with minimum limits of $1,000,000 per occurrence/$2,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Agreement. D. Workers' compensation insurance in an amount sufficient to meet statutory requirements covering all of CONTRACTOR'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the CDC. Said endorsement shall be provided prior to commencement of work under this Agreement. E. The aforesaid policies shall constitute primary insurance as to the CDC, its officers, employees, and volunteers, so that any other policies held by the CDC shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CDC of cancellation or material change. F. Said policies, except for the professional liability and workers' compensation policies, shall name the CDC and its officers, agents and employees as additional insureds, and separate additional insured endorsements shall be provided. G. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONTRACTOR shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. H. Any aggregate insurance limits must apply solely to this Agreement. I. Insurance shall be written with only California admitted companies which hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the City's Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. J. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CDC's Risk Manager. If the CONTRACTOR does not keep all of such insurance policies in 9 Public Art Release Agreement between CDC and Blueink.com, LLC, August 20, 2009 full force and effect at all times during the terms of this Agreement, the CDC may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. K. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CDC. 23. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of -court settlement, shall be entitled to have and, recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CDC shall, in addition, be limited to the amount of attorney's fees incurred by the CDC in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 24. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation, shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 25. TERMINATION. A. This Agreement may be terminated with or without cause by the CDC. Termination without cause shall be effective only upon 60- day's written notice to the CONTRACTOR. During said 60-day period the CONTRACTOR shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated immediately by the CDC for cause in the event of a material breach of this Agreement, misrepresentation by the CONTRACTOR in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CDC. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONTRACTOR as provided for herein. D. In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications, Work and other documents prepared 10 Public Art Release Agreement between CDC and Blueink.com, LLC, August 20, 2009 by the CONTRACTOR, whether paper or electronic, shall immediately become the property of and be delivered to the CDC, and the CONTRACTOR shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CDC by the CONTRACTOR's breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 6. E. The CDC further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONTRACTOR; (2) a reorganization of the CONTRACTOR for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONTRACTOR. 26.. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To the CDC: Brad Raulston Executive Director Community Development Commission of the City of National City 1243 National City Boulevard National City, CA 91950-4301 To the CONTRACTOR: Jen Lewin Blueink.com, LLC 437 Pine Street Boulder, CO 80302 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, 11 Public Art Release Agreement between CDC and Blueink.com, LLC, August 20, 2009 request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified in this Section. 27. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONTRACTOR shall not perform services of any kind for any person or entity whose interest's conflict in any way with those of the CDC of the City of National City. The CONTRACTOR also agrees not to specify any product, treatment, process or material for the project in which the CONTRACTOR has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. The CONTRACTOR shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONTRACTOR shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CDC in which the CONTRACTOR has a financial interest as defined in Government Code Section 87103. The CONTRACTOR represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CDC. ❑ If checked, the CONTRACTOR shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, the CONTRACTOR shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which the CONTRACTOR shall obtain from the City Clerk. The CONTRACTOR shall be strictly liable to the CDC and the City of National City for all damages, costs or expenses the CDC may suffer by virtue of any violation of this Paragraph 21 by the CONTRACTOR. 28. WAIVER. Due to the nature of the work of art and the site on which it is installed, the CONTRACTOR and his/her agents, heirs, successors and assigns hereby waive any and all rights they may have under the California Art Preservation Act, as set forth in Civil Code Section 987. The CONTRACTOR agrees that upon completion, the physical work of art which is created pursuant to this Agreement shall be transferred to and shall vest in the City of National City, and the CONTRACTOR hereby expressly waives and releases all rights of ownership to the work of art, including those under Civil Code Section 988. The CONTRACTOR, his/her agents, heirs, successors and assigns also agree not to attempt to defeat this waiver by cooperating with any organization which seeks to bring an action under Civil Code Section 989. 29.. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state or legal holiday. 12 Public Art Release Agreement between CDC and Blueink.com, LLC, August 20, 2009 B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. I. Entire Agreement. This Agreement supersedes any prior agree- ments, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. J. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. K. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. 13 Public Art Release Agreement between CDC and Blueink.com, LLC, August 20, 2009 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. COMMUNITY DEVELOPMENT COMMISSION OF THE • - NATIONAL CITY cutive Director APPROVED AS TO FORM: Geor,Eiser III City Attorney BLUEINK.COM LLC 14 Public Art Release Agreement between CDC and Blueink.com, LLC, August 20, 2009 ACORO® CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) 8/24/2009 PRODUCER (303) 442-1484 FAX: (303) 442-8822 Taggart & Associates, Inc. 1600 Canyon Boulevard P. O. Box 147 Boulder CO 80306 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED BLUE INK.COM, LLC 437 UNIVERSITY AVE BOULDER CO 80302 INSURER A: Hartford Casualty Insurance 2 942 4 INSURER B: Pinnacol Assurance 41190 INSURER C: INSURER D: INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OFSUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR ADD'L NSRD TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE (MM/DD/YYYY) POLICY EXPIRATION DATE (MM/DD/YYYY) LIMITS A GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY 34SBARU9723 4/25/2009 4/25/2010 EACH OCCURRENCE $ 1,000,000 PRocTED- PREMISES l (Ea occunence) $ 300,000 CLAIMS MADE OCCUR MED EXP (Any one person) $ 10,000 GEN'L X PERSONAL&ADVINJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 AGGREGATE LIMIT APPLIES PER: POLICY PRO- JECT PRODUCTS - COMP/OP AGG $ 2 , 000 , 000 AUTOMOBILE ---- LIABILITY COMBINED SINGLE LIMIT (Ea accident) BODILY INJURY (Per person) BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) GARAGE LIABILITY ANY AUTO AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC $ AUTO ONLY: AGG $ EXCESS / UMBRELLA LIABILITY EACH OCCURRENCE $ OCCUR CLAIMS MADE DEDUCTIBLE RETENTION $ AGGREGATE $ $ $ WORKERS AND EMPLOYERS' ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER (Mandatory If yes, describe SPECIAL COMPENSATION LIABILITY Y / N 4105515 6/1/2009 6/1/2010 WC STATU- OTH- TORY LIMITS ER E.L. EACH ACCIDENT $ 1 000,000 EXCLUDED? E.L. DISEASE - EA EMPLOYEE $ 1,000,000 in NH) under PROVISIONS below E.L. DISEASE - POLICY LIMIT $ 1,000,000 OTHER DESCRIPTION OF OPERATIONS / LOCATIONS I VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENTI SPECIAL PROVISIONS CERTIFICATE HOLDER CANCELLATION (619)336-4286 Community Development Commission Of the City of National City Attn: Redevelopment Division 1243 National City Blvd National City, CA 91950-4301 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 10 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE J Monteleone/JSM ACORD 25 (2009/01) INS025 (200901) © 1988-2009 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER This Certificate of Insurance does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2009/01) INS025 (200901) BUSINESS LIABILITY COVERAGE FORM (b) Rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by you, any of your "employees", "volunteer workers", any partner or member (if you are a partnership or joint venture), or any member (if you are a limited liability company). b. Real Estate Manager Any person (other than your "employee" or "volunteer worker"), or any organization while acting as your real estate manager. c. Temporary Custodians Of Your Property Any person or organization having proper temporary custody of your property if you die, but only: (1) With respect to liability arising out of the maintenance or use of that property; and (2) Until your legal representative has been appointed. d. Legal Representative If You Die Your legal representative if you die, but only with respect to duties as such. That representative will have all your rights and duties under this insurance. e. Unnamed Subsidiary Any subsidiary and subsidiary thereof, of yours which is a legally incorporated entity of which you own a financial interest of more than 50% of the voting stock on the effective date of this Coverage Part. The insurance afforded herein for any subsidiary not shown in the Declarations as a named insured does not apply to injury or damage with respect to which an insured under this insurance is also an insured under another policy or would be an insured under such policy but for its termination or upon the exhaustion of its limits of insurance. 3. Newly Acquired Or Formed Organization Any organization you newly acquire or form, other than a partnership, joint venture or limited liability company, and over which you maintain financial interest of more than 50% of the voting stock, will qualify as a Named Insured if there is no other similar insurance available to that organization. However: a. Coverage under this provision is afforded only until the 180th day after you acquire or form the organization or the end of the policy period, whichever is earlier; and b. Coverage under this provision does not apply to: (1) "Bodily injury" or "property damage" that occurred; or (2) "Personal and advertising injury" arising out of an offense committed before you acquired or formed the organization. 4. Operator Of Mobile Equipment With respect to "mobile equipment' registered in your name under any motor vehicle registration law, any person is an insured while driving such equipment along a public highway with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the equipment, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. "Bodily injury" to a co -"employee" of the person driving the equipment; or b. "Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. 5. Operator of Nonowned Watercraft With respect to watercraft you do not own that is less than 51 feet long and is not being used to carry persons for a charge, any person is an insured while operating such watercraft with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the watercraft, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. "Bodily injury" to a co -"employee" of the person operating the watercraft; or b. "Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. Form SS 00 08 04 05 Page 11 of 24 BUSINESS LIABILITY COVERAGE FORM en se%cif." i i tiara, testing, on of parts under om the manufacfu er, repackaged in ''`"the cirgiria! container; Page 12 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM 1i31C1t 1,f G -`;: ' ",,1;){ UL"t:7, - ;: .tL"r"'st '' l x'v:F -, iit - ri ♦ ,�,,,,,- _... C:'-�,,,."`-:' ;rv' � ::�.` �;,'�: �_.. ", ,; :;'�^` (:� � .- 1�.1 ��J��� au `t',} f 2!3'�'✓1��:114, G+a`,: drawings an pecificatt ri ' c r;, ,; fail"ire, to 'render, any p Supervtsary,:: ':' ° ns{ e ion *V r it t.irat engineering ai architectural "d;'r ' =aetgin in "services, including _ - activities'. Form SS 00 08 04 05 Page 13 of 24 BUSINESS LIABILITY COVERAGE FORM D. LIABILITY AND MEDICAL EXPENSES LIMITS OF INSURANCE 1. The Most We Will Pay The Limits of Insurance shown in the Declarations and the rules below fix the most we will pay regardless of the number of: a. Insureds; b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing "suits". 2. Aggregate Limits The most we will pay for: a. Damages because of "bodily injury" and "property damage" included in the "products -completed operations hazard" is the Products -Completed Operations Aggregate Limit shown in the Declarations. b. Damages because of all other "bodily injury", "property damage" or "personal and advertising injury", including medical expenses, is the General Aggregate Limit shown in the Declarations. This General Aggregate Limit applies separately to each of your "locations" owned by or rented to you. "Location" means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway or right-of-way of a railroad. This General Aggregate limit does not apply to "property damage" to premises while rented to you or temporarily occupied by you with permission of the owner, arising out of fire, lightning or explosion. 3. Each Occurrence Limit Subject to 2.a. or 2.b above, whichever applies, the most we will pay for the sum of all damages because of all "bodily injury", "property damage" and medical expenses arising out of any one "occurrence" is the Liability and Medical Expenses Limit shown in the Declarations. The most we will pay for all medical expenses because of "bodily injury" sustained by any one person is the Medical Expenses Limit shown in the Declarations. 4. Personal And Advertising Injury Limit Subject to 2.b. above, the most we will pay for the sum of all damages because of all "personal and advertising injury" sustained by any one person or organization is the Personal and Advertising Injury Limit shown in the Declarations. 5. Damage To Premises Rented To You Limit The Damage To Premises Rented To You Limit is the most we will pay under Business Liability Coverage for damages because of "property damage" to any one premises, while rented to you, or in the case of damage by fire, lightning or explosion, while rented to you or temporarily occupied by you with permission of the owner. In the case of damage by fire, lightning or explosion, the Damage to Premises Rented To You Limit applies to all damage proximately caused by the same event, whether such damage results from fire, lightning or explosion or any combination of these. 6. How Limits Apply To Additional Insureds The most we will pay on behalf of a person or organization who is an additional insured under this Coverage Part is the lesser of: a. The limits of insurance specified in a written contract, written agreement or permit issued by a state or political subdivision; or b. The Limits of Insurance shown in the Declarations. Such amount shall be a part of and not in addition to the Limits of Insurance shown in the Declarations and described in this Section. Page 14 of 24 Form SS 00 08 04 05 Wood and Glass Laser Harp, by Jen lewin This rendering is simply a visual example of what the harp can look like. (NOTE- laser strings are only visible with fog effects. ) This harp has a wood mahogany base that sits on the floor. It has an upper laser track attached to the Ceiling. It has a tall wood/mahogany control box. to power control cords Wood and Glass Laser Harp, by Jen lewin Dimensions. I a OFFICE OF THE CITY CLERK 1243 National City Blvd. National City, California 91950 Michael R. Dalla, CMC - City Clerk 619-336-4228 phone • 619-336-4229 fax BLUEINK.COM, LLC CREATION OF AN ORIGINAL TILE PROJECT FOR NATIONAL CITY'S ART MUSEUM Denise Davis (CDC) Forwarded Copy of Contract to the Contractor