Loading...
HomeMy WebLinkAboutDURAN, KIMBERLY dba THE HEAVYDa'p U ) Csy►'• Lo N N O N rn 0 a w Ln uhni;;,t ON FILE PROCEED is ,,,DURANCE EXPIRES .... uF COUNCIL N-2022-252 SANTA ANA POLICE DEPARTMENT "COMMUNITY FIRST" MURAL City of Santa Ana ARTIST AGREEMENT This agreement is made and entered into this 24th day of August, 2022, by and between the City of Santa Ana, a charter city and municipal corporation (hereinafter "City"), and KIMBERLY DURAN dba THE HEAVY (hereinafter "Artist") selected to create artwork for the Santa Ana Police Department ("SAPD") Cafe Youth Engagement project. In consideration of the promises contained herein, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows: A. Project Artist will paint artwork/mural ("Artwork") at the Santa Ana Police Department's (SAPD) headquarters Cafe located at 60 Civic Center Plaza, Santa Ana, California 92702 ("Location"). The title(s) of the artwork shall be attached as Exhibit A to this Agreement. 2. Items submitted by the Artist to SAPID for review and final approval for commencement of Artwork will be submitted to the City in a digital format, including but not limited to, size of file, resolution, image file format (i.e..png, .jpeg, .tif, .gif, etc.). The Artwork will be completed within 1-3 days of the start of the assignment. 3. SAPID will provide written approval of the final design and coordinate with Artist as to scheduling, logistics, and location of Artwork. 4. The Artwork will be painted as a mural at the Location. The specific dimensions of the Artwork/mural have previously been discussed with Artist and the location has been demonstrated to the Artist . 5. Artist recognition via signature on the work may be no larger than 3" x 5". 6. Artwork may not contain advertising, religious art, sexual content, negative or violent imagery, convey political partisanship or include any hidden, subliminal or camouflaged messages or statements of any kind or nature. 7. Artwork may not include any breach of intellectual property, trademarks, brands, images of illegal activity or involve the attachment of any objects to the box. B. Property Rights 1. The Artist hereby waives any legal rights under Federal, State, local, and/or all other applicable laws to maintain the Artwork on City property. The completed work will be the property of the City, who will retain the sole and absolute right and discretion to remove, modify, or relocate components of or the complete Artwork, if necessary, without compensation or notice to the artist. 2. The Artist grants to the City a lifetime non-commercial license regarding the Artwork provided in Exhibit "A". The City shall have the rights to use any images, photographs or video of the artwork and the installation process for publicity or promotional purposes and Artist agrees that the work product created by the City for these purposes shall remain the sole property of the City. C. Payment The City will compensate Artist in the amount of five thousand dollars ($5,000). Payment shall be processed per the details in Exhibit "A". Artist agrees and understands that payment timing is dependent on City accounting procedures and may take up to (45) forty-five days to process. Payment need not be made for work which fails to meet a reasonable standard of performance or objectively does not reflect the final draft approved by the City prior to commencement of the Artwork at the SAPID location. D. Indemnity and Release of Liability Artist shall defend, indemnify, protect and hold harmless the City, or their elected and appointed officers, employees, members or agents from and against all claims for damages, liability, cost and expense (including without limitation attorney's fees) arising out of or alleged by third parties as a result of the negligent acts, errors or omissions or the willful misconduct of the Artist, and Artist's employees, subcontractors or other persons, agencies or firms for whom Artist is legally responsible in connection with the execution of the work covered by this agreement. Artist shall have no duty to indemnify or hold harmless the City if claims, damages, liability, costs, expenses (including without limitation, attorney's fees) arising from the sole negligence or sole willful misconduct of the City. Artist's obligations shall survive the termination of this Agreement. Artist agrees to hereby fully release and forever discharge the City from any and all claims, demands, damages, losses, and liabilities (hereinafter collectively referred to as "claims"), which are or may be related to or in any way connected with the negligence or willful misconduct of its officers, officials, employees, or agents in connection with the creation, painting or installation of the Artwork. E. Termination The City may terminate this Agreement at any time for any reason. If the Agreement is terminated by the City after the installation of the Artwork has commenced, Artist shall be entitled to reasonable compensation for work performed to date, minus any offset representing the City's damages should termination result from Artist's breach of contract. Artist hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 2 F. General Terms 1. Artist and any of the Artist's agents, employees or representatives are, for all purposes under this agreement, an independent contractor and shall not be deemed to be an employee of the City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, work's compensation benefits, injury leave or other leave benefits. 2. Neither party shall assign any rights or obligations under this Agreement. 3. 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. 4. 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, 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. 5. 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. 6. 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. 7. Insurance Vendor 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 Vendor, 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 property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separatelyto this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall betwice the required occurrence limit. • Automobile Liability: Insurance Services Office Form Number CA 0001 covering Code 1 (any auto), or if Vendor has no owned autos, Code 8 (hired) and 9 (non- owned), with limits no less than $1,000,000 per accident for bodily injury and propertydamage. (Not required if vendor provides written verification it has no vehicles). Workers' Compensation insurance 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 verification it has no employees). If the Vendor maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limitsmaintained by the Instructor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. Self -Insured Retentions Self -insured retentions must be declared to and approved by the City. The City may requirethe Instructor to 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 City. Other Insurance Provisions The general liability policy is to contain, or be endorsed to contain, the following provisions: 1. The City, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds with respect to liability arising out of work or operations performed by or on behalf of the Instructor including materials, parts or equipment furnished in connection with such work or operations. 2. For any claims related to this contract, the Vendor's insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, agents, and volunteers. 3. The Insurance Company agrees to waive all rights of subrogation against the City,its elected or appointed officers, officials, agents, and employees for losses paid underthe terms of any policy which arise from work performed by the Instructor for the City. This provision also applies to the Instructor's Workers' Compensation policy. 4. Each insurance policy required above shall provide that coverage shall not be canceled,except with notice to the City. 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 City. Verification of Coverage Vendor shall furnish the City 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 N-2022-252 Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications, at any time. Special Events Coverage for Instructors Special events coverage is available for an additional fee to provide the liability insurance required by this agreement. Vendor can obtain additional information and cost from the City. Special or Low Risk Activities City reserves the right to modify these requirements, including limits, based on the nature ofthe risk, prior experience, insurer, coverage, or other special circumstances. The City reserves the right to modify or waive insurance requirements for certain low risk recreational activities. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: ,g,, Clerk of . the ouncil �* APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: TA ARA BO OSIAN Senior Assistant City Attorney ARTIST' sm Kimberly Duran Title: Creative Director Signature: CITY OF SANTA ANA KRISTINE RIDGE City Manager Recommended for Approval: VALEN N Chief of Police SCOPE OF WORK Project: "Community First" themed mural for the SAPD Cafe Youth Engagement Fee: $5,000 This fee will include artist fee, materials and engagement with the Youth. 50% payment due up front upon execution of agreement and 50% upon completion of project. Scope: • Artist will engage local students for input on ideas and designs for the mural. • Artist will provide the Santa Ana Police Department's Public Information Officer (PIO) with the final design once it is completed for approval. • The Santa Ana Police Department will provide the artist with access to the space to lay out the sketch prior to painting. • Artist will coordinate with the PIO on scheduling access to the space for the duration of the project. • Project to be completed within 1-3 days from commencement of the work.