HomeMy WebLinkAboutAGUILAR, CARLOS; SAMMY MONTOYA AND SUPERIOR PROPERTY SERVICES 1INSURANCE NOT REQUIRED N-2018-084
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DATE: ��3�� 8 MURAL RESTORATION
AGREEMENT AND GENERAL RELEASE
("HEROES AMONG US" MURAL)
This Mural Restoration Agreement and General Release ("Agreement') is made
and entered into as of May 22, 2018, by and among the City of Santa Ana, a charter city
and municipal corporation ("City"), Carlos Aguilar ("Artist/Muml Owner), Sammy
Montoya ('Property Owner"), and Superior Property Services ("Donor) (all of which are
also collectively referred to as "the Parties") in light of the following facts:
Recitals
A. The City seeks to have the Artist restore the "Heroes Among Us"
mural located on the La Chiquita building located at 906 E. Washington Avenue, Santa
Ana ("Mural').
B. Property Owner hereby consents to the work being completed on
the Mural on his building, and agrees to comply with regulations in the California Art
Preservation Act, as well as the Federal Visual Artists Rights, meant to protect and
preserve the Mural. Additionally, Property Owner will notify the Artist in writing at least
ninety (90) days in advance of any painting over the Mural.
C. Donor hereby agrees to apply a permanent coating to the Mural to
prevent future damage, after the Mural has been restored by the Artist, at no cost to the
City or any other Party.
D. The restoration of the Mural will improve the aesthetics of the area
and thereby will serve an important community interest.
In consideration of the promises contained herein, the receipt and adequacy of
which is hereby acknowledged, the Parties hereto agree as follows:
1. Agreement
A. The Artist shall utilize his unique talent and skill to paint over any
and all damage and restore the "Heroes Among Us" Mural to its original condition.
B. The Property Owner shall allow the restoration of the Mural directly
upon the La Chiquita building located at 906 E. Washington Avenue, Santa Ana, and
shall allow the Parties to enter upon the exterior of his property as necessary for such
purposes.
C. Once the restoration of the Mural is completed, Property Owner
agrees to comply with regulations in the California Art Preservation Act, as well as the
Federal Visual Artists Rights, meant to protect and preserve the Mural. Additionally,
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Property Owner will notify the Artist in writing at least ninety (90) days in advance of any
painting over the Mural.
D. After the Artist has completed restoration of the Mural, Donor shall
apply a permanent coating to the Mural to prevent future damage. Donor shall be
responsible for any and all costs associated with the application of such permanent
coating to the Mural.
E. City agrees to pay, and Artist agrees to accept as total payment for
his services, the rates and charges identified in Exhibit A attached herewith and
incorporated herein by reference. The total sum to be expended under this Agreement
by the City to Artist shall not exceed $11,296.00 as compensation for completing
restoration of the Mural. A contingency amount of $461.32 shall be included for
unforeseen circumstances, such as additional supplies, increase in cost of supplies, or
additional labor, for a total not to exceed amount of $11,757.32. Subject to proper
invoicing from the Artist confirming expenditures, payments shall be made from City to
Artist as follows:
1. $3,919.11 at the commencement of work;
2. $3,919.11 after eight (8) weeks from the date of
commencement of work; and,
3. $3,457.78, plus any contingency amount, if applicable, upon
successful completion of the project, subject to proper
invoicing from Artist confirming all expenditures for the
project.
F. The first two (2) payments from the City to the Artist shall be made
according to the schedule above. However, the final Payment by City shall be made
following receipt of proper invoice, subject to City accounting procedures. Prepayment
for services is acceptable under said Agreement due to the nature of the services being
provided. However, the City reserves the right to seek any and all remedies, including
refund of payment, for work that fails to meet the standards of performance as set forth
in the Recitals, which may reasonably be expected by City. On separate approval by
the City, payment will be made on all proper invoices evidencing acceptable work
performed prior to the start date of this Agreement.
G. No other parties shall receive any compensation under this
Agreement, and City shall not be responsible for any other payments except as
expressly stated herein.
H. Property Owner will be responsible for the maintenance of the
Mural, which includes but is not limited to, graffiti removal and paint touch-up, but would
not include restoration, for the duration of the Mural's existence on said building. Any
such expenses for said maintenance shall not exceed $500 per year.
E
I. The Artist and Donor agree to obtain all the necessary licenses and
permits, if any, prior to commencing any Mural restoration activities.
J. Mural installation activities shall be conducted according to the
schedule provided in Exhibit A attached hereto and incorporated herein by reference.
The City recognizes that the restoration of the Mural is an artistic endeavor, thus it is
difficult to establish an exact end date for completion or set dates and times for
installation activities. Therefore, an updated schedule may be approved from time to
time at the sole discretion of the City Manager or his designee. It is the responsibility of
the Parties to request and submit any updates to the schedule at least five (5) business
days in advance of the date for which the change is being requested.
K. Parties shall ensure that any areas utilized for the Mural restoration
project are maintained and restored to a well-maintained, safe, sanitary, and clean
condition, and kept free of any hazardous waste at all times. All equipment associated
with the restoration of the Mural, trash and debris must be removed and cleaned up on
a daily basis. Parties shall place a drop cloth or similar barrier on the ground below the
Mural while restoration is underway, which barrier shall be removed each day upon
completion of a session.
2. Reserved
3. Waiver of Rights to Maintain Artwork
The Artist hereby waives any legal rights that he may have under Federal,
State, local and/or Administrative law to maintain the Mural upon the building indicated
hereinabove.
4. Right to Use Image of Mural for Publicity Purposes
The Artist and Property Owner grant the City the right to use any images,
photographs or video of the Mural and the restoration process for publicity or
promotional purposes.
5. Ownership of Copyright
The Artist shall retain all copyrights to the Mural image. The City shall
identify the Artist as the creator of the Mural Image if it is used in promotional or
publicity materials.
6. Assignment
None of the Parties shall assign any rights or obligations under this
Agreement.
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7. Reserved
8. Safety
Artist shall execute and maintain its work so as to avoid injury or damage
to any person or property. In carrying out its services, the Artist shall at all times be in
compliance with all applicable local, state and federal laws, rules and regulations, and
shall exercise all necessary precautions for the safety of employees/volunteers
appropriate to the nature of the work and the conditions under which the work is to be
performed. Safety precautions as applicable shall include, but shall not be limited to: (i)
adequate life protection and life saving equipment and procedures; (ii) instructions in
accident prevention for all employees, volunteers and subcontractors, such as safe
walkways, scaffolds, fall protection ladders, bridges, confined space procedures,
trenching and shoring, equipment and other safety devices, equipment and wearing
apparel as are necessary or lawfully required to prevent accidents or injuries; and (iii)
adequate facilities for the proper inspection and maintenance of all safety measures.
9. Release of Liabilitv
Artist, Property Owner, and Donor agree to hereby fully release and
forever discharge the City from any and all claims, demands, damages, losses, and
liabilities (hereafter collectively referred to as "Claims"), which are or may be related to
or in any way connected with the negligence or wilful misconduct of its officers, officials,
employees or agents in connection with the creation, painting, installation, or restoration
of the Mural and the completion of the project.
10. Mutual Indemnification
A. Artist, Property Owner, and Donor shall defend (with legal counsel
reasonably acceptable to the City), indemnify and hold harmless the City and its
officers, officials, employees and agents against any and all liability, amounts paid in
settlement costs, penalties, fines, judgments and other costs and expenses, including
attorneys' fees, arising out of the active negligence and/or intentional or willful
misconduct of the Artist, Property Owner, or Donor, or their officers, officials,
employees, or agents in connection with the Mural.
B. The City shall defend (with legal counsel reasonably acceptable to
Artist, Property Owner, and Donor), indemnify and hold harmless Artist, Property
Owner, and Donor, its officers, officials, employees and agents against any and all
liability, amounts paid in settlement, costs, penalties, fines, judgments and other costs
and expenses, including attorneys' fees, arising out of the active negligence and/or
intentional or willful misconduct of City, its officers, officials, employees or agents in
connection with the Mural.
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11. Conflict of Interest
Each Party 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. Voluntary Nature of Agreement
Each Party warrants that they have executed this Agreement knowingly,
freely and voluntarily and with full knowledge of its legal consequences. All Parties
involved warrant and represent that, prior to executing this Agreement and release,
each party has had the opportunity to review and consider this matter with legal
counsel, and that the terms of this Agreement, and its consequences, are fully
understood by each Party.
13. Entire Agreement
This Agreement represents the entire agreement and understanding
between the Parties, and supersedes any and all prior agreements and understandings
between the Parties, whether oral or written.
14. Signatory Authority.
Each undersigned represents and warrants that its signature hereinbelow
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 to 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.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement and
General Release the date and year first above written.
ATTEST:
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CITY OF SANTA ANA
MARIA D. HUIZAR
RAUL GODINEZ I
Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
SIGNED IN COUNTERPART
By:
Ryan 0. Hodge
Assistant City Attorney
"ARTIST"
CARLOS AGUILAR
III
"DONOR"
SUPERIOR PRO
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By: > %
Title:���•—.�,�
City Manager
Recommended for Approval:
Executive Director
Community Development Agency
"PROPERTY OWNER"
SAMMY MONTOYA
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement and
General Release the date and year first above written.
ATTEST:
SIGNED IN COUNTERPART
MARIA D. HUIZAR
Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City
By:
Rya
Ass
"ARTIST"
CARLOS AGUILAR
SIGNED IN COUNTERPART
"DONOR"
SUPERIOR PROPERTY SERVICES
SIGNED IN COUNTERPART
Title:
11
CITY OF SANTA ANA
SIGNED IN COUNTERPART
RAUL GODINEZ II
City Manager
Recommended for Approval:
SIGNED IN COUNTERPART
Executive Director
Community Development Agency
"PROPERTY OWNER"
SAMMY MONTOYA
SIGNED IN COUNTERPART
Exhibit A
"Among Heroes" by Carlos Balam Aguilar
Mural Restoration Project
Repair/Repaint 22 WW2 portraits, spot repair & anti -graffiti coat on 27 x 27 foot wall
14 week project — M -F, lam -fpm (30 hrs week):
1 week — Install scaffolding & chain link fencing, wall prep & mount informational vinyl sign
11 weeks — Repaint/Restore 22 portraits
1 weeks — Spot restoration on wall overall
1 weeks — Add layers of anti -graffiti varnish
Labor - $20 hr x 30hrs a week = $600 week x 14 weeks = $8,400
Meals - $20 a day perdiem x 70days = $1,400
Paint - NovaColor Mural Pigments - $616
#100 Burnt Sienna $44 unit (3 @ $132)
#101 Burnt Umber $44 unit (3 @ $132)
#126 Raw Sienna $44 unit (3 @ $132)
#108 Mars Black $45 unit (2 @$90)
#118 Titanium White $130 unit (1 @ $130)
Brushes & Solvants - $300
Anti -Graffiti Coat — Soluvar - $260
$64.99 unit (4 @ $260)
Scaffolding - $280 flat rate ($20 wk for 14 weeks)
Portable chain link fencing — In -Kind from Public Works
Vinyl Sign Printing - $40
Project Total - $11,296
Vinyl Sign Wording:
"Among Heroes" mural restoration project
Artist: Carlos Balam Aguilar
Estimated Completion Date: July 2015
Subjet: Blurb on Mural
Commission: This project was spearheaded by the Santa Ana Arts Commission
City Agencies: Economic Development in partnership with Public Works & SAPD
Santa Ana Mayor & City Council: List Names
City Manager:
Chief of Police:
Judge:
City Seal