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21-001 Sarabijt SinghNO. _______________ FY2020-21 PUBLIC ARTWORK COMMISSION AGREEMENT THIS AGREEMENT is made by and between the City of Cupertino, a municipal corporation (“City”), and Sarabijt Singh (“Artist”), and is effective on the last date signed below (“Effective Date”). RECITALS WHEREAS, the Cupertino City Council approved the “Art in Unexpected Places” pilot program in the City Work Program for Fiscal Year 2019-2020, in an effort to beautify public spaces, surprise and delight passers-by, and encourage the community to reflect on themes and imagery that represent the heritage, natural beauty, diversity, and creativity of the residents of the City; WHEREAS, following a competitive selection process, the Fine Arts Commission voted on June 8 and approved the selection of Artist to install mural wall art on City property at Blackberry Farm Café Wall and authorized acquisition by commission of the artwork described in this Agreement; NOW, THEREFORE, City and Artist agree as follows: 1. Purpose of Agreement Artist, as the sole owner and creator of the wall mural artwork (“Artwork”), hereby agrees to commission Artwork for City pursuant to the terms of this Agreement. The Artwork prepared by Artist, is attached and incorporated into this Agreement as Exhibit A. In consideration of Artist’s agreement to commission the Artwork for City, City agrees to publicly display the Artwork on City property at Blackberry Farm Café Wall consistent with the terms of this Agreement, and to credit Artist for the Artwork. This Agreement is intended to implement and shall be interpreted in accordance with the terms of all City ordinances, policies, rules, and regulations, which are incorporated herein by this reference. 2. Payments In consideration of Artist’s agreement to commission the Artwork for City, at the conclusion of the installation of the Artwork and acceptance of the Artwork by City, City 2 shall reimburse Artist for the Artwork, labor, and actual cost of materials and equipment reasonably required to install the Artwork, consistent with the budget set forth in Exhibit A and in an amount not to exceed $3,000 (“Artist Fee”). Artist shall submit appropriate documentation (i.e., receipts) to support the requested reimbursement amount. The Artist Fee amount is expected to be sufficient to cover Artist’s full costs to install the Artwork; City is not expected to provide any additional funding to Artist for the cost of materials and equipment necessary to complete the installation. 3. Artist’s Representations and Warranties Artist represents and warrants the following to City: a. Artist is the original and only creator of the Artwork. b. Artist is the sole owner of the Artwork; the Artwork is free and clear of any liens and there are no outstanding disputes in connection with property rights, intellectual property rights, or any other rights in the Artwork or parts of the Artwork; and Artist is the sole owner of any and all copyrights and other intellectual rights pertaining to the Artwork. c. The Artwork will not pose a danger to public property, 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. Foreseeable exposure to the elements and general wear and tear will cause the Artwork to experience only minor, repairable damage and will not cause the Artwork to fall below an acceptable standard of public display. e. General routine maintenance and repair of the Artwork will maintain the Artwork within an acceptable standard of public display. 4. Intellectual Property and Publicity Rights a. Following acceptance of the Artwork by City, Artist shall not retain any intellectual property or other rights relating to the Artwork. All such rights shall immediately transfer to and vest in City. 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 Artwork: 3 (1) Use and Display. City may use and display the Artwork. (2) Reproduction and Distribution. City may make, display, distribute, and sell, and authorize the making, display, distribution, and sale of, photographs and other two- dimensional reproductions of the Artwork, including reproductions on three- dimensional goods (such as tote bags and coffee mugs). City may use such reproductions for City-related purposes, including advertising, educational and promotional materials, brochures, books, flyers, postcards, print, broadcast, film, electronic and multimedia publicity, catalogues or similar publications, and goods for sale. City shall ensure that such reproductions are made in a professional and tasteful manner, in the sole and reasonable judgment of City. c. Credit. On each City reproduction of the Artwork, Artist shall be acknowledged, using designations provided by Artist, to be the artist of the Artwork. d. Third Party Infringement. City is not responsible for any third-party infringement of any copyright to the Artwork held by Artist and is not responsible for protecting the intellectual property rights of Artist. Artist understands and agrees that the Artwork will be displayed in a public place and may be photographed, filmed, or otherwise recorded for any purpose without any restriction by City. e. 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. f. Alteration. 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. g. Waiver. Artist hereby waives any and all claims, arising with respect to the Artwork 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 similar laws. Artist shall have no right to royalties or other compensation in the event City sells the Artwork in the future. Artist shall have no right to any portion of funds that may be collected by City in connection with the display and/or reproduction of the Artwork. 4 5. Damage to Artwork and Risk of Loss City shall be under no obligation to insure the Artwork against damage and loss. City may, however, choose to do so from time to time at its sole discretion. City shall not be liable to Artist for any damages to the Artwork, regardless of cause. 6. Repair and Maintenance City shall be under no obligation to repair and maintain the Artwork. City may however, choose to do so from time to time at its sole discretion. City shall not be liable to Artist for any damage to Artwork caused by maintenance or repairs or by the failure to undertake any such maintenance or repairs. 7. Indemnification To the fullest extent allowed by law and except for losses caused by the sole negligence or willful misconduct of City personnel, Artist agrees to indemnify, defend, and hold harmless the City, its City Council, boards and commissions, officers, officials, employees, agents, servants, volunteers and Contractors (collectively, “Indemnitees”), through legal counsel acceptable to City, from and against any liability for damages, claims, actions, causes of action, demands, charges, losses, costs and expenses (including attorney fees, legal costs and expenses related to litigation, arbitrations, administrative and regulatory proceedings), of every nature, arising out of or in any way related to Artist’s or Artist’s agents performance of the work under this Agreement. This includes but is not limited to liability resulting in personal injury, death, property damage, or economic losses. Artist must pay any costs City may incur in enforcing this provision and must accept a tender of defense upon receiving notice from City. Artist’s payments may be deducted or offset to cover any money the City lost due to a claim or counterclaim arising out of this agreement. 8. General Liability Insurance Artist shall maintain general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage. The general liability policies shall be endorsed to provide that City and its officers, officials, employees, and agents shall be additional insureds under such policies. 9. Termination of Agreement City may decide to remove the Artwork from public display and terminate this 5 Agreement at any time in its sole discretion. City shall provide written notice of the intent to remove the Artwork and terminate the Agreement to Artist at the address listed in Section 17 of this Agreement. 10. Installation and Removal of Artwork City will have authority over the installation and removal of the Artwork. City and Artist have jointly developed a plan for installation of the Artwork in a manner that is cost- effective as well as protective of City property and the Artwork. That plan is attached to this Agreement as Exhibit B. Artist shall take all actions reasonably necessary to facilitate and permit implementation of the plan described in Exhibit B, including making the Artwork available on a timely basis. Artist shall also be solely responsible for any and all activities identified in Exhibit B as being the responsibility of Artist. City shall be solely responsible for removal of the Artwork. If the Artwork can be removed from public display without significant damage to the Artwork or the site where the Artwork is installed, City shall take reasonable precautions to minimize alteration of the Artwork during removal. If the Artwork cannot be removed from public display without alteration of the Artwork (e.g., it is a mural or is incorporated into a building), Artist waives any and all such claims, and any rights granted under the Visual Artists Rights Act, the California Art Preservation Act, or similar law, against City, its agents, officers and employees, for alteration of the Artwork. 11. Choice of 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 the Superior Court for the County of Santa Clara. 12. Captions Section headings are for reference only and shall not be used to interpret this Agreement. 13. 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 affect the intent of the parties. 6 14. 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. 15. Entire Agreement This Agreement, including the attachments, contains the entire agreement between the parties, and supersedes all other oral or written provisions, conditions and/or covenants. 16. Modifications and Amendments No amendment or modification to this Agreement shall be effective unless it is in writing and signed by authorized representatives of each of the parties hereto. 17. Notices Unless otherwise indicated in this Agreement, all written communications sent by the parties may be made by U.S. Mail or e-mail, and shall be addressed as follows: City of Cupertino Sarabijt Singh Attn: Kelsey Hayes Cupertino, CA 95014 18. Binding Effect The provisions, covenants, and conditions in this Agreement shall inure to and bind the parties, their legal heirs, representatives, successors, and assigns. 19. Enforcement In the event of litigation between the parties arising out of this Agreement, the prevailing party shall recover its costs of litigation, including attorney's fees. 20. Ownership of Artwork Upon acceptance of the Artwork by City, title to the Artwork shall immediately transfer to and vest in City. 7 IN WITNESS WHEREOF, the parties have executed this Agreement effective the date last signed below. ARTIST By ________________________ Name ______________________ Title ______________________ Date _______________________ Tax I.D. No.: CITY OF CUPERTINO A Municipal Corporation By ________________________ Name ______________________ Title ______________________ Date _______________________ APPROVED AS TO FORM: _____________________________ HEATHER M. MINNER Cupertino City Attorney ATTEST: _____________________________ KIRSTEN SQUARCIA City Clerk Date ________________________ Sarabjit Singh Sarabjit Singh Jan 7, 2021 Artist Heather M. Minner Rachelle Sander Jan 11, 2021 Rec Supervisor Jan 11, 2021 8 Exhibit A: Artwork Details, Materials Required, and Cost Breakdown Artistic vision: Since the theme is Natural habitat, flora, and fauna, I have prepared the design after taking a good look at the place and making notes of the different species of nature to be found there. This mural will not only enhance the area and show the local community that we need to preserve this disappearing natural habitat for our future generations to enjoy, but it will also serve as a visual of the different varieties of nature to be found in that area. My design includes kids to represent our future; in one of the three designs, I’m presenting. Multicultural kids reflect the mixed culture of the City of Cupertino. In my second design, I have varied it by showing just one kid to represent future generations. The third design just focuses on the Natural habitat and the fauna and flora. I’m open to combining any particular element to any design that is selected. The actual mural will have more details that cannot be brought out in this smaller draft version. The theme is: -The natural habitat, fauna, and flora - Area 6’x30’ Materials to be used: Will use Artist acrylic paints. Multiple colors will be used - greens, reds, oranges, yellows, blue. Lilac, browns, black, white Hansa Yellow Light-Pint 107-2 Pint/16 fl. oz. Cadmium Yellow Medium-Pint 102-2 Pint/16 fl. oz. Hansa Yellow Light-Quart 107-3 Quart/32 fl. oz. Cadmium Orange-Quart 124-3 Quart/32 fl. oz. Cadmium Red Light-Quart 145-3 Quart/32 fl. oz. Cadmium Red Medium-Pint 125-2 Pint/16 fl. oz. Naphthol Crimson-Pint 171-2 Pint/16 fl. oz. Quinacridone Violet-4 oz 181-1 Portrait Tone-4 oz 150-1 Hot Pink-4 oz 136-1 Medium Violet/Purple-4 oz 186-1 Ultramarine Blue-Pint 122-2 Pint/16 fl. oz. Phthalo Turquoise-Pint 135-2 9 Blue Green-Pint 142-2 Pint/16 fl. oz. Chromium Oxide Green-Pint 104-2 Pint/16 fl. oz. Phthalo Blue Deep (green shade)-Pint 115D-2 Pint/16 fl. oz. Medium Green-Pint 182-2 16 fl. oz. Yellow Green-Pint 120-2 Pint/16 fl. oz. Titanium White-Gallon 118-4 Gallon/128 fl. oz. Raw Titanium Matte-4 oz 134-1 4 fluid ounces Bone/Ivory Black-Pint 183-2 Pint/16 fl. oz. Payne’s Gray-4 oz 140-1 4 fluid ounces Raw Umber-Pint 117-2 Pint/16 fl. oz. Raw Umber Dark-Pint 117D-2 Pint/16 fl. oz. Burnt Umber-Pint 101-2 Pint/16 fl. oz. Burnt Sienna-Pint 100-2 Pint/16 fl. oz. Neutral Gray 5-Pint 174-2 Pint/16 fl. oz. Gesso 200-4 Gallon/128 fl. oz. Matte Varnish-Gallon 205-4 Arylide Yellow (PY 194) Pint 178-2 Novaplex 235-Quart 235-3 Quart/32 fl. Oz. Exterior Varnish -Gallon 216-4 (For protection) Gallon/128 fl. oz. Paint Brushes: 4” W-1, 2” W-1, 1.5” W-1, 1” W---1, .5”------1, .8”------1 Dropcloth- 6 pack Bucket-1 Water bottle--2gallons Total Estimated Cost: $600 Wall Prep: The wall must be prepped with filling any holes and painted white. Person to paint and work plus materials estimated cost: $400 Hiring an assistant: $500 Total Estimated Cost: $1500 Timeline: The estimated time the project will take is 7-10 days. 10 Exhibit B: Plan for Installation and Removal of Artwork Installation and de-installation (removal) of the Artwork will require the participation and cooperation of Artist and City as follows: - City will prepare the wall for the mural, including but not limited to, cleaning the wall (pressure washing) and applying a primer coating. - City will be fully responsible for Artwork maintenance after completion and if necessary, de-installation of Artwork. - Artist will purchase all necessary artwork supplies and equipment to complete Artwork. - Artist will be fully responsible for installation of Artwork. Note: Those items identified as being the responsibility of City shall be arranged by City and the costs covered under the provisions of the Agreement. Those items identified as being the responsibility of Artist shall be arranged by Artist, in cooperation with City and its schedule, at no cost to City, except in accordance with the Artist Fee provisions of this Agreement. In accordance with the Agreement, any costs that result from Artist’s deviations from the responsibilities and schedules identified in this plan shall be borne by Artist. Schedule for Installation Wall preparation and Artwork installation shall begin once the Agreement is signed by all parties involved and shall be completed by Friday, April 2, 2021. 1289108.1 Commercial General Liability Coverage Part Declarations Policy No:    Effective Date: 12/14/2020 AT 12:01 A.M. STANDARD TIME AT YOUR MAILING ADDRESS NAMED INSURED: Sarabjit Singh LIMITS OF INSURANCE General Aggregate Limit $1,000,000 Products­completed Operations Aggregate Limit $1,000,000 Personal and Advertising Injury Limit $1,000,000 Each Occurrence Limit $1,000,000 Damage to Premises Rented to You Limit $50,000 Any One Premise Medical Expense Limit $1,000 Any One Person DESCRIPTION OF BUSINESS Form of Business: Individual Partnership Joint Venture Trust Limited Liability Corporation Organization, including a corporation (but not including a partnership, joint venture, trust, or limited liability company) Location(s) (including Zip Code) of All Premises You Own, Rent or Occupy                 CLASSIFICATION AND PREMIUM Rate Advance Premium Classification Code No.Premium Basis*Pr/CO All Other Pr/CO All Other Location # 1 Painting ­ exterior ­ buildings or structures ­ three stories or less in height ­ NOC 98304 p 3,000  265.813  348.101 $238.00 $312.00 See DECBGLS (07­05) for continuation of table *See backside of DECBGL for definitions Total Advance Premium: $550.00 FORMS AND ENDORSEMENTS              (other than applicable Forms and Endorsements shown elsewhere in this policy) Forms and endorsements applying to this Coverage Part and made a part of this policy at time of issue: Refer to Endorsement E849. THESE DECLARATIONS AND THE COMMON POLICY DECLARATIONS, IF APPLICABLE, TOGETHER WITH THE COMMON POLICY CONDITIONS, COVERAGE FORM(S) AND FORMS AND ENDORSEMENTS, IF ANY, ISSUED TO FORM A PART THEREOF, COMPLETE THE ABOVE NUMBERED POLICY. Includes copyrighted material of Insurance Services Office, Inc., with its permission. Copyright, Insurance Services Office, Inc., 1985 DECBGL (07­05) Classification and Premium table continued Rate Advance Premium Classification Code No.Premium Basis*Pr/CO All Other Pr/CO All Other CG2010 Additional Insured ­ Owners, Lessees Or Contractors ­ Scheduled Person Or Organization ­  Limit (Fully Earned) INCL *See backside of DECBGL for definitions Total Advance Premium: $550.00 Commercial General Liability Coverage Part Declarations Policy No:    Effective Date: 12/14/2020 AT 12:01 A.M. STANDARD TIME AT YOUR MAILING ADDRESS NAMED INSURED: Sarabjit Singh DECBGLS (07­05) POLICY NUMBER: COMMERCIAL GENERAL LIABILITY CG 20 10 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED – OWNERS, LESSEES OR CONTRACTORS – SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE A. Section II – Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1.Your acts or omissions; or 2.The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above. However: 1.The insurance afforded to such additional insured only applies to the extent permitted by law; and 2.If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1.All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2.That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. Name Of Additional Insured Person(s) Or Organization(s) Location(s) Of Covered Operations City of Cupertino TBD Information required to complete this Schedule, if not shown above, will be shown in the Declarations CG 20 10 04 13 © Insurance Services Office, Inc., 2012 Page 1 of 2 C. With respect to the insurance afforded to these additional insureds, the following is added to Section III – Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1.Required by the contract or agreement; or 2.Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. CG 20 10 04 13 © Insurance Services Office, Inc., 2012 Page 2 of 2 Art in Unexpected Places - Commission Agreement Final Audit Report 2021-01-12 Created:2021-01-07 By:Kevin Khuu (KevinK@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAxlYL69mIKPZDNJ9G7eXqh4ZYIEVC1FOX "Art in Unexpected Places - Commission Agreement" History Document created by Kevin Khuu (KevinK@cupertino.org) 2021-01-07 - 1:47:30 AM GMT- IP address: 73.70.97.4 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2021-01-07 - 1:49:55 AM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2021-01-07 - 5:20:34 PM GMT - Time Source: server- IP address: 73.170.27.253 Document emailed to Sarabjit Singh ( for signature 2021-01-07 - 5:20:38 PM GMT Email viewed by Sarabjit Singh ( 2021-01-07 - 5:40:31 PM GMT- IP address: 74.125.209.42 Document e-signed by Sarabjit Singh ( Signature Date: 2021-01-07 - 10:58:36 PM GMT - Time Source: server- IP address: 73.222.29.193 Document emailed to Heather M. Minner (minner@smwlaw.com) for signature 2021-01-07 - 10:58:40 PM GMT Email viewed by Heather M. Minner (minner@smwlaw.com) 2021-01-11 - 11:39:21 PM GMT- IP address: 45.41.142.34 Document e-signed by Heather M. Minner (minner@smwlaw.com) Signature Date: 2021-01-11 - 11:39:47 PM GMT - Time Source: server- IP address: 52.39.49.65 Document emailed to Rachelle Sander (rachelles@cupertino.org) for signature 2021-01-11 - 11:39:50 PM GMT Email viewed by Rachelle Sander (rachelles@cupertino.org) 2021-01-12 - 0:50:01 AM GMT- IP address: 104.47.74.126 Document e-signed by Rachelle Sander (rachelles@cupertino.org) Signature Date: 2021-01-12 - 0:50:36 AM GMT - Time Source: server- IP address: 73.158.59.6 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2021-01-12 - 0:50:39 AM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2021-01-12 - 1:03:41 AM GMT- IP address: 69.110.137.176 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2021-01-12 - 1:03:55 AM GMT - Time Source: server- IP address: 69.110.137.176 Agreement completed. 2021-01-12 - 1:03:55 AM GMT