[Note: Section numbering in these project description sections corresponds to the printable RFQ]

All applicants must be at least 18 years of age and have all necessary documentation and permits to work in the United States at the time of submittal of qualifications.

Selection and commissioning of artists by the City and the pursuit of all Office of Cultural Affairs activities are implemented without preference to racial or ethnic origins, sex, sexual orientation, religious affiliation, disability or age.

The City of San José reserves the right in their sole discretion to reject any or all applications, proposals, applicants, or projects, and to modify or terminate the application process or the selection process for any reason and without prior notice. Applicant agrees that any and all materials submitted pursuant to this call for entry become the property of the City of San José and shall not be returned to Applicant. Notwithstanding the foregoing, Applicant shall retain all copyright in the work which may be held by Applicant. 

IX. CITY OF SAN JOSE CONTRACTS, POLICIES AND LEGAL REQUIREMENTS  

A. Contracts

All artists or members of artist teams accepted into the Roster must be at least 18 years of age and be eligible to work in the United States and have all necessary documentation and permits to work in the United States at the time of submittal of qualifications.

Artists who are offered commissions for specific mural projects must enter into a contract with the City of San José using its standard design-fabrication agreement. A generic boilerplate of this agreement can be viewed at San José Public Art Program Design-Fabrication Boilerplate Agreement: Mural Projects. Final award of a mural commission shall be contingent upon the selected artist/team accepting Terms and Conditions of the agreement to the terms listed in the boilerplate. In some instances, for mural commissions of less than $10,000, artists may work under a Purchase Order with the City. Per the agreement (or purchase order), contracted artists must comply with City policies pertaining to non-discrimination, gifts, environmental safety and other City statutes.

Artists selected for a commission must complete an IRS W-9 form (to be provided by the CITY after selection) and must comply with local business licensing requirements including any local Business Tax requirements If selected for a project, the artist Artists will also be required to obtain Automobile Insurance and General Liability Insurance coverages in conformance with requirements set by the City of San Jose’s Risk Manager.

The City of San José reserves the right in their sole discretion to reject any or all applications, proposals, applicants, or projects, and to modify or terminate the application process or the selection process for any reason and without prior notice. Applicant agrees that any and all materials submitted pursuant to this call for entry become the property of the City of San José and shall not be returned to Applicant. Notwithstanding the foregoing, Applicant shall retain all copyright in the work which may be held by Applicant.

X. PROTESTS

A. If an interested party wants to dispute the final mural roster artist selection, they must submit their protest in writing to the City’s Public Art Director no later than five (5) business days after the Roster Artists Recommendation is reported to the Public Art Committee, detailing the grounds, factual basis, and providing all supporting information.  Protests will not be considered for disputes of requirements or specifications, which must be addressed in accordance with the Objections Section above.  Failure to submit a timely written protest to the contact listed below will bar consideration of the protest.

B. Protests must be addressed to the following:

          Office of Cultural Affairs
          Attention: Michael Ogilvie
          200 E. Santa Clara Street, 12th Floor
          San José, CA  95113

C. Grounds for which No Protest is Allowed: There is no right to protest based on the following:

• Incomplete (non-responsive) applications;
• Disqualification due to not meeting the Eligibility Requirements in Section VI.
• Late submission of applications; or
• A dispute regarding the application requirements and/or specifications that could have been addressed by submitting a question and/or objection in accordance with Section XI.

D. Director’s Decision: The Director or an appropriate designee of the Director will issue a written decision on any protest.  The Director, or designee, may base the decision on the written protest alone or may informally gather evidence from the Artist filing the protest or any other person having relevant information.  The Director’s decision is final.

XI. GROUNDS FOR DISQUALIFICATION

A.    All Artists are expected to have read and understand the “Procurement and Contract Process Integrity and Conflict of Interest”, Section 7 of the Consolidated Open Government and Ethics Provisions adopted on August 26, 2014.  A complete copy of the Resolution 77135 can be found at:  https://www.sanjoseca.gov/home/showdocument?id=19565.

Any Artist who violates the Policy will be subject to disqualification.  Generally, the grounds for disqualification include:

1. Contact regarding this procurement with any City official or employee or Evaluation team other than the Procurement Contact from the time of issuance of this solicitation until the end of the protest period.
2. Evidence of collusion, directly or indirectly, among Artists in regard to the amount, terms, or conditions of this proposal.
3. Influencing any City staff member or evaluation team member throughout the solicitation process, including the development of specifications.
4. Evidence of submitting incorrect information in the response to a solicitation or misrepresent or fail to disclose material facts during the evaluation process.

B.     In addition to violations of Process Integrity Guidelines, the following conduct may also result in disqualification:

1. Offering gifts or souvenirs, even of minimal value, to City officers or employees.
2. Existence of any lawsuit, unresolved contractual claim or dispute between Artist and the City.
3. Evidence of Artist’s inability to successfully complete the responsibilities and obligations of the proposal.
4. Artist’s default under any City Special Purchase Demand, resulting in termination of such Purchase Order or contract.
5. Evidence of any wage theft judgements

XII. MISCELLANEOUS PROVISIONS

A. City’s Right to Terminate Process:  The City of San José reserves the right in its sole discretion to reject any or all submittals, applications, proposals, applicants, or projects, and to modify or terminate the application process or the selection process at any time for any reason and without prior notice.

B. Costs of Preparing Submittal:  Artist bears all costs associated with its efforts in responding to this Call.

C. Ownership of Submission: Any and all materials submitted pursuant to this Call for Submissions become the property of the City of San José and shall not be returned to the artists or artist teams. Notwithstanding the foregoing, artists or artist teams shall retain all copyright in the work which may be held by the artists or artist teams.

D. Gifts Prohibited: Chapter 12.08 of the San José Municipal Code generally prohibits a City officer or designated employee from accepting any gift(s).  The Artist or Artist Team selected as a result of this procurement will be required to comply with Chapter 12.08: (https://library.municode.com/ca/san_jose/codes/code_of_ordinances?nodeId=TIT12ETOPGOPR_CH12.08PRGI). 

By submitting a response to this Call, the Artist represents that:

• He/she is familiar with the requirements of Chapter 12.08, and
• He/she has complied with, and throughout the remainder of this application process will continue to comply with, the requirements of Chapter 12.08.

The Artist’s failure to comply with Chapter 12.08 at any time during this process is a ground for disqualification.

E. Discrimination:  It is the City’s policy that the selected Artist shall not discriminate, in any way, against any person on the basis of race, sex, color, age, religion, sexual orientation, actual or perceived gender identity, disability, ethnicity, or national origin, in connection with or related to the performance of City contracts.

F. Public Nature of Submissions:  All applications and submissions and other correspondence with the City regarding this Call become the exclusive property of the City and become public records under the California Public Records Act (California Government Code section 6250 et seq.)  All submissions and other correspondence will be subject to the following requirements:

1. The City has a substantial interest in not disclosing submissions during the evaluation process.  For this reason, the City will not disclose any part of the Application before it issues the Final Notice of selection.  After issuance of the Final Notice of selection, all submissions will be subject to public disclosure.
2. There are a limited number of exceptions to the disclosure requirements under the Public Records Act, such as for trade secret information.  The City is not in a position to determine what information in a submission, if any, may be subject to one of these exceptions.  Accordingly, if an Artist believes that any specific portion of its submission is exempt from disclosure under the Public Records Act, the Artist must mark the portion of the submission as such and state the specific provision in the Act that provides the exemption and the factual basis for claiming the exemption.  For example, if an Artist believes a submission contains trade secret information, the Artist must plainly mark the information as “Trade Secret” and refer to the appropriate section of the Public Records Act, which provides the exemption for such information and the factual basis for claiming the exemption.
3. If a request is made for information in a submission that an Artist has properly marked as exempt from disclosure under the Public Records Act (e.g. information that the Artist has marked as “Confidential”, “Trade Secret” or “Proprietary”), the City will provide the Artist with reasonable notice of the request and the opportunity to seek protection from disclosure by a court of competent jurisdiction. It will be the Artist’s sole responsibility to seek such protection from a court.
4. Any submission that contains language attempting to make all or significant portions of the submission exempt from disclosure or that fails to provide the exemption information required above will be considered a public record in its entirety.  Therefore, do not mark your entire submission as “confidential,” “trade secret,” or “proprietary.”

G. Environmentally Preferable Procurement Policy:  The City has adopted an “Environmentally Preferable Procurement” (EPP) policy. The goal is to encourage the procurement of products and services that help to minimize the environmental impact resulting from the use and disposal of these products. These products include, but are not limited to, those that contain recycled content, conserve energy or water, minimize waste or reduce the amount of toxic material used and disposed. Computers and other electronics are a growing focus of environmentally preferable purchasing activities due to their high prominence in the waste stream, their numerous hazardous chemical constituents, and their significant energy use. Moreover, when these products are improperly disposed of they can release hazardous substances that pollute the environment.

1. In support of this policy, the selected Artist will be required to work with the City to apply this policy where it is feasible to do so.  In addition, Artists should address any environmental considerations with their proposal response.
2. The entire EPP policy may be found in the City’s internet site at the following link: https://www.sanjoseca.gov/your-government/environment/business-school-resources/for-schools/environmentally-preferable-procurement

H. Unfair Competitive Advantage

1. The City seeks applications for this Call through a competitive, impartial process in which all Artists are treated fairly.  An Artist that has an actual or apparent unfair competitive advantage jeopardizes the integrity of the competitive process.
2. A number of different situations can give rise to an actual or apparent unfair competitive advantage.  Most commonly, an actual or apparent unfair competitive advantage arises because the Artist has unequal access to nonpublic information or unique insight into the scope of work.  Whether an unfair competitive advantage exists depends on the specific facts of each situation.
3. The existence of an unfair competitive advantage is a basis for the City to disqualify an Artist’s participation in this Call.  If the City determines that an Artist is disqualified because of the existence of an unfair competitive advantage, it will provide the Artist with a written statement of the facts leading to its conclusion that an unfair competitive advantage exists.  The Artist may protest the determination in accordance with Section XII of this Application.  Notwithstanding anything to the contrary in Section XII, the Artist shall submit its written protest no later than 5 business days after the date of the City’s letter of disqualification.
4. The Artist represents that before submitting a response to the Call it investigated and considered the issue of potential unfair competitive advantage, including considering any sub-consultants it has worked with.  By submitting a response to the Call, the Artist further acknowledges that performing the work resulting from this Call potentially could be the basis of creating an actual or apparent unfair competitive advantage for any future work.  The City strongly advises Artists to consult with their legal counsel regarding these issues.

I.  Disqualification of Former Employees

1. Chapter 12.10 of the City’s Municipal Code generally prohibits a former City officer or “designated employee”, as defined in Chapter 12.10, from providing services to the City connected with his/her former duties or official responsibilities.  The Artist selected as a result of this process will be prohibited from either directly or indirectly using any former City officer or designated employee to perform services in violation of Chapter 12.10.
2. By submitting a response to this Call, the Artist represents that:

• He/she is familiar with the requirements of Chapter 12.10, and
• His/her response to this Call does not contemplate the use of any former City officer or designated employee in violation of Chapter 12.10.

The Artist’s failure to comply with Chapter 12.10 at any time during this application process is a ground for disqualification.