HomeMy WebLinkAboutBLUE MOUNTAIN DEVELOPMENT, INC.WOr,K 4AV P�Pnr•c_-_
Z 23
CEERK _
DATE' ��� O 2 2022
6, : ?WA (E)
CONSULTANT AGREEMENT BETWEEN THE CITY OF SANTA ANA
AND BLUE MOUNTAIN DEVELOPMENT FOR ART INSTALLATION
PROGRAM MANAGEMENT SERVICES
N-2022-360
(SU"'NAV) THIS AGREEMENT is made and entered into on this 23 day of November, 2022 by and
between Blue Mountain Development, ("Consultant"), and the City of Santa Ana, a charter city
and municipal corporation organized and existing under the Constitution and laws of the State of
California ("City").
RECITALS
A. The City desires to retain a Consultant having special skill and knowledge in the field of
Art Installation Program Management Services.
B. Consultant represents that Consultant is able and willing to provide such services to the
City.
C. In undertaking the performance of this Agreement, Consultant represents that it is
knowledgeable in its field and that any services performed by Consultant under this
Agreement will be performed in compliance with such standards as may reasonably be
expected from a professional consulting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the
terms and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
Consultant shall perform the services described in the City's Calls for Proposals: South
Main Public Arts Initiative — Phase 2 that is attached as Exhibit A and incorporated herein, and as
further delineated in Consultant's proposal, which is attached as Exhibit B and incorporated in
full.
2. COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as total payment for its services for
City, the rates and charges identified in Exhibit B. The total amount to be expended
during the term of this Agreement shall not exceed $49,325.00.
b. Payment by City shall be made within forty-five (45) days following receipt of proper
invoice evidencing work performed, subject to City accounting procedures. Payment
need not be made for work which fails to meet the standards of performance set forth
in the Recitals which may reasonably be expected by City.
3. TERM
This Agreement shall commence on the date first written above and continue for a two (2)
year term, unless terminated earlier in accordance with Section 15, below. The term of this
Agreement may be extended for up to two (2) one (1) year periods upon a writing executed by the
City Manager and City Attorney.
4. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an
independent Consultant and not an employee of the City. This Agreement is not intended nor shall
it be construed to create an employer -employee relationship, a joint venture relationship, or to
allow the City to exercise discretion or control over the professional manner in which Consultant
performs the services which are the subject matter of this Agreement; however, the services to be
provided by Consultant shall be provided in a manner consistent with all applicable standards and
regulations governing such services. Consultant shall pay all salaries and wages, employer's social
security taxes, unemployment insurance and similar taxes relating to employees and shall be
responsible for all applicable withholding taxes.
5. OWNERSHIP OF MATERIALS
This Agreement creates a non-exclusive and perpetual license for City to copy, use,
modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property
embodied in plans, specifications, studies, drawings, estimates, and other documents or works of
authorship fixed in any tangible medium of expression, including but not limited to, physical
drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or
caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant
shall require all subcontractors to agree in writing that City is granted a non-exclusive and
perpetual license for any Documents & Data the subcontractor prepares under this Agreement.
Consultant represents and warrants that Consultant has the legal right to license any and all
Documents & Data. Consultant makes no such representation and warranty in regard to
Documents & Data which were provided to Consultant by the City. City shall not be limited in
any way in its use of the Documents and Data at any time, provided that any such use not within
the purposes intended by this Agreement shall be at City's sole risk.
6. INSURANCE
Contractor shall procure and maintain for the duration of the contract insurance against claims for
injuries to persons or damages to property which may arise from or in connection with the
performance of the work hereunder and the results of that work by the Contractor, his agents,
representatives, employees or subcontractors.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
• Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering
CGL on an "occurrence" basis, including products and completed operations, property
damage, bodily injury and personal & advertising injury with limits no less than $1,000,000
per occurrence. If general aggregate limit applies, either the general aggregatelimit shall apply
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separately to this project/location (ISO CG 25 03 or 25 04) or the generalaggregate limit shall
be twice the required occurrence limit.
• Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if
Contractor has no owned autos, hired, (Code 8) and non -owned autos (Code 9), with limitno
less than $1,000,000 per accident for bodily injury and property damage. (Not required if
vendor provides written verification it has no vehicles and doesn't require a vehicle to
complete scope of work.)
• Workers' Compensation: as required by the State of California, with Statutory Limits, and
Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily
injury or disease. (Not required if vendor provides written verificaiion it has no employees.)
If the Contractor maintains broader coverage and/or higher limits than the minimums shown
above, the Entity requires and shall be entitled to the broader coverage and/or the higher limits
maintained by the contractor. Any available insurance proceeds in excess of the specified
minimum limits of insurance and coverage shall be available to the Entity.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The Entity, its officers, officials, employees, and volunteers are to be covered as additional
insureds on the CGL policy with respect to liability arising out of work or operations performed
by or on behalf of the Contractor including materials, parts, or equipment furnished in connection
with such work or operations. General liability coverage can be provided in the form of an
endorsement to the Contractor's insurance (at least as broad as ISO Form CG 20 10 1185 or if not
available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20
37 if a later edition is used).
Primary Coverage
For any claims related to this contract, the Contractor's insurance coverage shall be primary
coverage at least as broad as ISO CO 20 01 04 13 as respects the Entity, its officers, officials,
employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers,
officials, employees, or volunteers shall be excess of the Contractor's insurance and shall not
contribute with it.
Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except
with notice to the Entity.
Waiver of Subrogation
Contractor hereby grants to Entity a waiver of any right to subrogation which any insurer of said
Contractor may acquire against the Entity by virtue of the payment of any loss under such
insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver
of subrogation, but this provision applies regardless of whether or not the Entity has received a
waiver of subrogation endorsement from the insurer.
3
Self -Insured Retentions
Self -insured retentions must be declared to and approved by the Entity. The Entity may require the
Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses
and related investigations, claim administration, and defense expenses within the retention. The
policy language shall provide, or be endorsed to provide, that the self -insured retention may be
satisfied by either the named insured or Entity.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current
A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the Entity.
Claims Made Policies
If any of the required policies provide claims -made coverage:
1. The Retroactive Date must be shown, and must be before the date of the contractor the
beginning of contract work.
Z Insurance must be maintained and evidence of insurance must be provided for at least
five (5) years after completion of the contract of work.
3. If coverage is canceled or non -renewed, and not replaced with another claims -made
policy form with a Retroactive Date prior to the contract effective date, the Contractor
must purchase "extended reporting" coverage for a minimum of five (5) years after
completion of work.
Verification of Coverage
Contractor shall furnish the Entity with original Certificates of Insurance including all required
amendatory endorsements (or copies of the applicable policy language effecting coverage required
by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all
policy endorsements to Entity before work begins. However, failure to obtain the required
documents prior to the work beginning shall not waive the Contractor's obligation to provide them.
The Entity reserves the right to require complete, certified copies of all required insurance policies,
including endorsements required by these specifications, at any time.
Special Risks or Circumstances
Entity reserves the right to modify these requirements, including limits, based on the nature of the
risk, prior experience, insurer, coverage, or other special circumstances.
" i1»1051.ftticyv_c1W
Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers,
agents, employees, contractors, special counsel, and representatives from liability: (1) for personal
injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for
personal injury, including death, and claims for property damage, which may arise from the
negligent operations of the Contractor, its subcontractors, agents, employees, or other persons
acting on its behalf which relates to the services described in section 1 of this Agreement; and (2)
from any claim that personal injury, damages, just compensation, restitution, judicial or equitable
relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and
hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial
or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in
this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant
further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including
fees and costs for special counsel to be selected by the City, regarding any action by a third party
challenging the validity of this Agreement, or asserting that personal injury, damages, just
compensation, restitution, judicial or equitable relief due to personal or property rights arises by
reason of the terms of, or effects arising from this Agreement. City may make all reasonable
decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing,
to the extent Contractor's services are subject to Civil Code Section 2782.8, the above indemnity
shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of,
pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor.
8. INTELLECTUAL PROPERTY INDEMNIFICATION
Consultant shall defend and indemnify the City, its officers, agents, representatives, and
employees against any and all liability, including costs, for infringement of any United States'
letters patent, trademark, or copyright infringement, including costs, contained in the work product
or documents provided by Consultant to the City pursuant to this Agreement.
9. RECORDS
Consultant shall keep records and invoices in connection with the work to be performed
under this Agreement. Consultant shall maintain complete and accurate records with respect to
the costs incurred under this Agreement and any services, expenditures, and disbursements
charged to the City for a minimum period of three (3) years, or for any longer period required by
law, from the date of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of the City to
examine, audit, and make transcripts or copies of such records and any other documents created
pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all
work, data, documents, proceedings, and activities related to this Agreement for a period of three
(3) years from the date of final payment to Consultant under this Agreement.
10. CONFIDENTIALITY
If Consultant receives from the City information which due to the nature of such
information is reasonably understood to be confidential and/or proprietary, Consultant agrees that
it shall not use or disclose such information except in the performance of this Agreement, and
further agrees to exercise the same degree of care it uses to protect its own information of like
importance, but in no event less than reasonable care. "Confidential Information" shall include all
nonpublic information. Confidential information includes not only written information, but also
information transferred orally, visually, electronically, or by other means. Confidential
information disclosed to either party by any subsidiary and/or agent of the other party is covered
by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any
information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the
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Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant
without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e)
is independently developed by the Consultant without reference to information disclosed by the
City.
11. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interests and shall not have interests, direct
or indirect, which would conflict in any manner with performance of services specified under this
Agreement.
12. NON-DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital status,
sexual orientation, gender identity, gender expression, gender, medical conditions, genetic
information, or military and veteran status, age, national origin, ancestry, or disability, as defined
and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization,
promotion, termination or other employment related activities or any services provided under this
Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all
applicable federal, state and local laws and regulations.
13. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Contractor, and supersedes any and all other agreements, oral or written, between the parties. In
the event of a conflict between the terms of this Agreement and any attachments hereto, the terms
of this Agreement shall prevail. This Agreement may not be modified except by written instrument
signed by the City and by an authorized representative of Contractor. The parties agree that any
terms or conditions of any purchase order or other instrument that are inconsistent with, or in
addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each
party to this Agreement acknowledges that no representations, inducements, promises or
agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any
party, which is not embodied herein.
14. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Contractor,
Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior
written consent of the City and any such assignment, transfer, delegation or subcontract without
the City's prior written consent shall be considered null and void. Nothing in this Agreement shall
be construed to limit the City's ability to have any of the services which are the subject to this
Agreement performed by City personnel or by other Contractors retained by City.
0
[byN Y I RATAli;nHIM
This Agreement may be terminated by the City upon thirty (30) days written notice of
termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant
compensation for all services performed by Consultant prior to receipt of such notice of
termination, subject to the following conditions:
a. As a condition of such payment, the Executive Director may require Consultant to
deliver to the City all work product(s) completed as of such date, and in such case
such work product shall be the property of the City unless prohibited by law, and
Consultant consents to the City's use thereof for such purposes as the City deems
appropriate.
b. Payment need not be made for work which fails to meet the standard of
performance specified in the Recitals of this Agreement.
I[1 1'/l►M
No waiver of breach, failure of any condition, or any right or remedy contained in or
granted by the provisions of this Agreement shall be effective unless it is in writing and signed by
the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or
remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not
similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies.
17. JURISDICTION - VENUE
This Agreement has been executed and delivered in the State of California and the validity,
interpretation, performance, and enforcement of any of the clauses of this Agreement shall be
determined and governed by the laws of the State of California. Both parties further agree that
Orange County, California, shall be the venue for any action or proceeding that may be brought or
arise out of, in connection with or by reason of this Agreement.
18. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses,
permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder
and required by the laws and regulations of the United States, the State of California, the City of
Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and
in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and
exemptions. Said inability shall be cause for termination of this Agreement.
19. NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this Agreement
shall be in writing and shall be deemed to be properly given if delivered in person or mailed by
first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in
the manner provided in this Section, to the following persons:
To City:
Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
Fax: 714- 647-6956
With courtesy copies to:
Executive Director
Public Works Agency
City of Santa Ana
20 Civic Center Plaza (M-36)
P.O. Box 1988
Santa Ana, California 92702
To Consultant: Blue Mountain Development
2423 Sebald Avenue
Redondo Beach, CA, 90278
Attn: Omar M. Dandashi, P.E.
Vice President
A party may change its address by giving notice in writing to the other party. Thereafter,
any communication shall be addressed and transmitted to the new address. If sent by mail,
communication shall be effective or deemed to have been given three (3) days after it has been
deposited in the United States mail, duly registered or certified, with postage prepaid, and
addressed as set forth above. If sent by fax, communication shall be effective or deemed to have
been given twenty-four (24) hours after the time set forth on the transmission report issued by the
transmitting facsimile machine, addressed as set forth above. For purposes of calculating these
time frames, weekends, federal, state, County or City holidays shall be excluded.
20. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature herein below has the
power, authority and right to bind their respective parties to each of the terms of
this Agreement, and shall indemnify City fully, including reasonable costs and
attorney's fees, for any injuries or damages to City in the event that such authority
or power is not, in fact, held by the signatory or is withdrawn.
b. The Agreement is the final and complete agreement and any prior or
contemporaneous agreements for similar services between the parties is superseded
by this Agreement. This shall not apply where the Parties are currently engaged
and Consultant is providing services not contemplated by this Agreement.
C. All Exhibits referenced herein and attached hereto shall be incorporated as if fully
set forth in the body of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first
above written.
ATTEST:
1is Clerk of the Council
APPROVED AS TO FORM
SONIA R. CARVALHO
City Attorney
ryy�e
By: "t
Jose Montoya
Assistant City Attorney
RECOMMENDED FOR APPROVAL
a yA,
bil Saba
Executive Director
Public Works Agency
CITY OF SANTA ANA
`�_ (� L-- Tcr-
Kristine Ridge
City Manager
:I1)M1IJ N 1.X W
17
Nicholas J. Biro - President
Blue Mountain Development, Inc.
0
Burrola, Melissa
From: City of Santa Ana <certificate-request@ctrax.jdidata.com>
Sent: Wednesday, November 23, 2022 12:18 PM
To: NBiro Blue MT Development; Burrola, Melissa; Thomas, Sean; veronica@bulen.com
Subject: Internal Notice of Compliance
NOTICE OF COMPLIANCE
CITY STAFF: PRINT THIS PAGE .AND INCLUDE WITH AGREEMENT TO THE CLERK OFT" E COUNCIL
Contractor Blue Mountain Development, Inc.
Name:
Project TBD (101)
Number:
Project AGREEMENT BETWEEN THE CITY OF SANTA ANA AND BLUE
Name: MOUNTAIN DEVELOPMENT FOR ART INSTALLATION PROGRAM
MANAGEMENT SERVICES
The Certificate of Insurance (COI) submitted indicates that the coverages are in compliance with the
insurance requirements. No further action is required at this time.
The compliant coverage(s) are:
TYPE OF INSURANCE
AUTOMOBILE LIABILITY
GENERAL LIABILITY
WORKERS COMPENSATION AND
EMPLOYERS' LIABILITY
Thank you,
City of Santa Ana
Risk Management Division
POLICY EXPIRATION
NUMBER DATE
4031144935
4031144935
WAIVER
11/04/2023
I1/04/2023
10/10/2023
COI DATE FILE NAME
11/18/2022 Risk
Management.pd£
11/18/2022 Risk
Management.pdf
Affidavit of
Exemption for
11/18/2022 Workers
Compensation
Insurance
2022.pdf
1
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EXHIBIT B
BLUE MOUNTAIN
DEVELOPMENT
August 30, 2022
Mr. Sean Thomas
Senior Civil Engineer
City of Santa Ana — Public Works Agency
20 Civic Center Plaza
Santa Ana, California 92702
Subject: South Main Street Infrastructure Improvements
Art Installation Program Management
Dear Sean,
Thank you for the opportunity to provide the City of Santa Ana South Main Street Infrastructure
Art Installation Program Management Services. Blue Mountain Development (BMD) looks
forward to the integration of the City's community vision through the management of the project
Art Installation Program.
The integration of public art fulfills a part of the City's Council's vison. The installation of public
art within the South Main Street corridor offers opportunities with the Bus Shelters Inserts,
Interactive Bus Shelters, at the Main and Pine Street Parking Lot, Medians, and Sidewalk and
Crosswalk Art. The artist's expression within the project area will require a developing a unique
approach to assist the selected artists successfully implement their concepts. The City of Santa
Ana has issued two Calls for Public Art Proposal to artists or art teams with connections or ties to
Santa Ana to showcase art along South Main. Using the art submission list from the call and the
City's ranking of the art, BMD will work with the selected artists and serve as a liaison between the
City and the artists to implement the work along South Main Street. This will include the tasks
and scope of work listed below:
• TASK t — Art Project Procurement Setup
o Proposal Status Artist Coordination. BMD will notify all artists of selection status. (City to
Provide Contact Information for Artists)
o Artist Agreement Preparation. BMD will work with the City of Santa Ana and the selected
Artists to establish an agreement between the City and the Artists. The City will provide
BMD with the template agreement. BMD will modify the agreement to be project specific
and artist specific. BMD will issue the agreement to selected artists for signature and will
address any questions and concerns.
TASK 2 — Art Implementation Management
0 Plan Art Proposal Schedule and Delivery Planning
.BLUE MOUNTAIN
DEVELOPMENT
• TASK 3 - Field Condition Coordination
o Assist Field Delivery of Art projects
o Determine Construction Approaches
o Construction Operations Management
• TASK 4 - Art Project Acceptance & Payment
o BMD will provide contract administration services to organize payment to the artists.
Payment will come from the City.
o Art Project Field Review and Acceptance
o Payment & Closeout
The type of art projects being considered by the City for implementation include the following
scope of work:
• Interactive and Educational Bus Shelters (1 Location)
o Coordinate agreement with artist
o Review construction submittal
o Work with fabricators for production of bus shelter per architectural drawings supplied by
artist
o Coordinate the purchase order and installation of bus shelter
o Coordinate with contractor to perform the work
• Tile Art Sculpture at Main and Pine Parking Lot (1 Location)
o Coordinate agreement with artist
o Coordinate with contractor / artist to perform the work
• Bike Rack at Main and Pine Parking Lot (1 Location)
o Coordinate agreement with artist
o Work with artist to provide bike rack sculpture that reflects South Main
o Get files from them in correct format
o Possibly obtain a sketch from them with dimensions
o Coordinate with contractor to perform work
• Metal Art Panels on Median Fence (1 Location)
o Coordinate agreement with artist
o Coordinate with contractor / artist to perform work
• Bus Shelter Inserts (17 Locations)
o Coordinate agreement with artists
o Get files from them in correct format
o Coordinate production of inserts
• Cross Walk Sand Blast Art (Up to 18 Locations)
o Coordinate agreement with artists
o Get files from them in correct format
o Coordinate with contractor to perform the work
• Sidewalk Poetry (Up to 50 Locations, 32 Character Poems)
o Coordinate agreement with artists
o Coordinate with contractor to perform the work
-V--'90MP BLUE MOUNTAIN
DEVELOPMENT
The professional services budget for the scope of work is proposed on a time and materials basis
with a not -to -exceed value of $50,000 with the following staff rates:
• Principal - $205 per hour
• Project Manager - $150 per hour
This budget includes project management, planning and technical strategies, construction
implantation, coordination, and serve as a liaison with City Staff and selected artists, meetings and
budget management.
As always, we remain available to discuss this proposal. Please feel free to reach me at
909.268.9918. Thank you again for the opportunity to propose on the City of Santa Ana Main
Street Art Installation Program.
Respectfully,
Omar M. Dandashi, PE
Vice President