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HomeMy WebLinkAboutAGUILERA, MARINA (6)N-2023-115 INSURANCE NOT REQUIRED WORK MAY PROCEED CITY CLERK '..yW'sA`') DATE: MAY 16 2023 WItIiArtl Sk)&Vat)ttITY OF SANTA ANA ARTIST AGREEMENT WITH MARINA AGUILERA FOR MURAL ON GARDEN WALL BUILDING AT EL SALVADOR PARK This Artist Agreement ("Agreement") is made and entered this 9th day of May, 2023, by and between 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"), and Marina Aguilera, an individual ("Artist"). City and Artist may herein individually be referred to as a "Party' and collectively be referred to as the "Parties' to the Agreement. RECITALS: A. City desires to engage Artist to render an 8ft x 14ft paint/tile mural ("Artwork") on the Garden Wall Building located on City -owned property at El Salvador Park ("Site"). A true and correct copy of Artist's Scope of Work is attached hereto as Exhibit A and incorporated herein by reference. B. In undertaking the performance pursuant to this Agreement, Artist represents they are skilled and knowledgeable in the arts and culture arena and that the Artwork created hereunder will be created in compliance with such standards as may reasonably be expected from an artist. 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. Term. This Agreement shall be effective upon the date first written above and expire June 15, 2023, unless terminated earlier in accordance with this Agreement. The term of this Agreement may be extended upon a writing executed by the Artist, City Manager and City Attorney. 2. Funding. 2.1. Subject to Artist's performance of all required actions under this Agreement, City shall provide funding, as detailed below, of an amount not to exceed Six Thousand Dollars and Zero Cents ($6,000.00). 2.2. Artist will be paid in two (2) installments. First payment will be half of the funding amount provided above, or $3,000, and will be provided upon the full execution of the Agreement by the parties and City's receipt of an invoice from Artist, subject to City account procedures. The second and final payment will include the remaining amount of $3,000 and will be issued within thirty (30) days after the Artist completes the Artwork, submits to the City all the proper invoices and final report for the Artwork, and Artwork is approved by the Executive Director of Parks, Recreation and Community Services Agency, or their designee. 2.3. Appropriate performance of the Artwork by Artist will be determined by City in its sole discretion. City reserves the right to cease funding after the first disbursement detailed above, and to be reimbursed the initial payment, if Artist's performance is determined to be insufficient or unacceptable in the City's sole discretion. Page 1 of 7 2.4. City represents that there is no correlation or connection between its selection of individuals for funding and an individual's business relationship or potential business relationship with City. 3. Activities. Artist agrees: 3.1. Artist is hereby retained to furnish all labor, materials, tools, equipment, services, and incidental and customary work necessary to design, fabricate, transport and install the Artwork ("Services") on the Site in accordance with the schedule of completion as described in Exhibit A attached hereto and incorporated herein by reference. 3.2. Artist shall be responsible for complying with all Federal, State and local laws, ordinances, statutes and regulations, including, but not limited to zoning and environmental requirements, and for obtaining all required licenses, permits, or other authorizations applicable to the performance of Artist's Services under the Agreement. 3.3. Artist shall execute and deliver to City any instruments that City may reasonably require to confirm ownership of the Artwork. 3.4. Artist shall maintain all pertinent financial and accounting records pertaining to this Agreement in accordance with generally accepted accounting principles and other procedures reasonably specified by City. Upon termination or expiration of this Agreement or request by City, Artist shall provide, at its expense, copies of all financial and accounting records produced by it arising out of this Agreement. 3.5. Artist shall allow audits, compliance or special reviews and inspections, including on - site inspection, with or without prior notice, of Artist's facilities by City or by third parties designated by City, or their authorized representatives. Artist shall provide its full cooperation for any such audit, review or inspection, including providing timely access, for examination and copying of records (including computerized records) pertinent books, documents, papers, computer programs and records and reasonable access to its personnel. 3.6. Artist shall ensure that the Site is 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 Services and installation of the Artwork, trash and debris shall be removed and cleaned up on a daily basis. Artist shall place a drop cloth or similar barrier on the ground below the Artwork while installation is underway, which barrier shall be removed each day upon completion of an installation session. 3.7. The 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. Appropriateness of the content of the Artwork will be determined by City in its sole discretion. 3.8. The Artwork may not include any breach of intellectual property, trademarks, brands, or images of illegal activity, and the Artist must be the copyright holder for the Artwork. Page 2 of 7 3.9. If the Artwork is a mural, it must be covered in an anti -graffiti coating at the Artist's expense. 3.10. After installation, should the Artwork be defaced and/or not repaired, maintained, preserved, and/or conserved, the City has the option to repair, maintain, preserve, and/or conserve the Artwork, or alternatively, the City as the sole authority to remove, alter, or destroy the Artwork. 3.11. Artist will have first right of refusal to restore said Artwork, City agrees to engage in good faith negotiations with Artist regarding compensation for such restoration. If Artist is unwilling to perform or unable to perform within a reasonable time, the City has the right to request the services needed from a different artist. 3.12. The City owns the physical Artwork on City property and the right to control what art is displayed on City property, as such, the Artwork may be removed at the sole discretion of the City or as otherwise agreed upon with Artist. 4. Intellectual Property and Publicity Rights. 4.1. Copyright. Subject to usage rights and licenses granted to City hereunder, the copyright in all original works of authorship under this Agreement shall be owned by the Artist or her heirs. If Artist is comprised of two or more individual persons, the individual persons shall be deemed joint authors of the Work. 4.2. City's Intellectual Property License. Artist grants to City, and to City's agents, authorized contractors and assigns, a non-exclusive and irrevocable license to do the following with respect to the Artwork throughout the universe: 4.2.1. Implementation, Use and Display. City may use and display the Artwork at the Site. 4.2.2. Reproduction and Distribution. City may make and distribute, and authorize the making, display and distribution of, photographs and other reproductions. City may use such reproductions for any not -for -profit City -related purpose, including advertising, educational and promotional materials, brochures, books, flyers, postcards, print, broadcast, film, electronic and multimedia publicity, documentation of City's art collection, and catalogues or similar publications. City shall ensure that such reproductions are made in a professional and tasteful manner, in the sole and reasonable judgment of the City. 4.3. Third Party Infringement. The City is not responsible for any third party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. 4.4. Credit. Artist hereby agrees that all formal references to the Artwork and any reproductions of the Artwork in any form shall include the following credit: "Collection of the City of Santa Ana." Wherever the City find practicable, the City shall make an effort to ensure that all reproductions by the City shall contain a copyright notice substantially Page 3 of 7 in the following form: "©, Artist's name, date," in such a manner and location as shall comply with U.S. Copyright Laws. 4.5. Publicity. City shall have the right to use Artist's name as well as Artist -approved likeness and biographical information, in connection with the display or reproduction and distribution of the Artwork including all advertising and promotional materials regarding the City. Artist shall be reasonably available to attend any inauguration or presentation ceremonies, if any, relating to the public dedication of the Artwork. 4.6. Trademark. In the event that City's use of the Artwork creates a trademark, service mark or trade dress rights in connection with the Artwork, City shall have a non-exclusive and irrevocable license in such trademark, service mark, or trade dress subject to the same rights and limitations in Section 4.2 above. 5. Termination. 5.1. Either Party may immediately terminate this Agreement upon one or more of the following: 5.1.1. Violation of any federal, state or local law or regulation. 5.1.2. Breach of any of the terms or conditions of this Agreement that has not been cured within 15 days of written notice of such breach. 5.2. In the event the Agreement is terminated under Section 5.1, City reserves the right to require Artist to refund any or all funds awarded to Artist under this Agreement, and Artist agrees to refund to City any or all funds awarded under this Agreement. 6. Limitation of Liability. 6.1. IN NO EVENT SHALL CITY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR EXPENSES FOR ANY NEGLIGENCE, BREACH OF CONTRACT OR ANY OTHER ACT ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIVITIES COVERED HEREUNDER. 6.2. Section 5 and Section 6 do not limit Artist's rights, including its ability to seek recovery, against anyone other than City, its directors, officers, employees, agents, successors and assigns. 7. Indemnification. 7.1. Each Party ("Indemnifying Party") shall defend, indemnify, protect and hold harmless the other Party, and its elected and appointed officers, employees, members or agents (collectively, "Indemnified Parties"), if any, 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 to be the result of the negligent acts, errors or omissions or the willful misconduct of the Indemnifying Party, and Indemnifying Party's employees, subcontractors or other persons, agencies or firms for whom Indemnifying Party is legally responsible in connection with the execution of the work covered by this Agreement. Page 4 of 7 Indemnifying Party shall have no duty to indemnify or hold harmless the Indemnified Parties if claims, damages, liability, costs, expenses (including without limitation, attorney's fees) arise from the sole negligence or sole willful misconduct of the Indemnified Parties. The indemnification obligation in this section shall include claims that are or may be related to the creation, painting, performance or installation of the Artwork hereunder. Indemnifying Party's obligations shall survive the termination of this Agreement. 7.2. Indemnified Parties' right to indemnification is in addition to, and may be exercised independently of, any remedy held by Indemnified Parties under this Agreement, at law or in equity. 8. General Provisions. 8.1. Artist shall acquire prior written permission from City for any use of the City name or logo in association with its Artwork. 8.2. If any parts of this Agreement are held to be invalid or unenforceable, the remaining parts of the Agreement shall continue to be valid and enforceable. 8.3. Artist shall comply with all governmental requirements that may now or in the future become applicable to its Services under this Agreement. 8.4. This Agreement, including Exhibit A, Scope of Work, and any amendments or schedules hereto, contain the full understanding and agreement of the Parties with respect to its subject matter, and no waiver, alteration or modification of any of the provisions to this Agreement shall be binding unless in writing and signed by an authorized officer of both Parties. 8.5. No waiver by either Party or any breach, default, or series of breaches or defaults, and no failure, refusal, or neglect of either Party to exercise any right, power, or option given to it under this Agreement or to insist upon strict compliance with the terms of this Agreement shall constitute a waiver of these provisions with respect to any subsequent breach or waiver by either Party or its right at any time thereafter to require exact and strict compliance with provisions of this Agreement. 8.6. Any notice or other communication required or permitted to be made or given by either Party pursuant to this Agreement will be in writing and will be deemed to have been duly given: (i) five (5) business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; (ii) when transmitted if sent by facsimile, provided a confirmation of transmission is produced by the sending machine; or (III) when delivered if delivered personally or sent by express courier service. All notices to City shall include a reference to the Artwork title. All notices will be sent to the other Party at its address as set forth below or at such other address as such Party will have specified in a notice given in accordance with this section: Page 5 of 7 Artist: Marina Aguilera 75 Via Cuidado Rancho Santa Margarita, CA 92688 949-459-8488 aquileraarts angmail.com City: City of Santa Ana Clerk of the Council (M-30) 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 FAX (714) 647-6956 8.7. This Agreement is subject to all applicable local, State and Federal laws. 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. 8.8. Artist agrees to comply with all applicable equal opportunity and affirmative action laws as appropriate, Artist shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Artist affirms that it is an equal opportunity employer (if applicable) and shall comply with all applicable federal, state and local laws and regulations. 8.9. 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. 8.10. Neither Party shall assign any rights or obligations under this Agreement. 8.11. 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. 8.12. 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 Page 6 of 7 N-2023-115 to Agreement, and consider this matter with legal counsel, and that the terms of this greement, and its consequences, are fully understood by each Party. 8.13. 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 8, 14. 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. IN WITNESS WHEREOF, the parties hereto have executed this Artist Agreement the date and year first above written. iATTEST- Ilk- City APPROVED AS TO FORM: Sonia R. Carvalho City Attorney Brandon Salvatierra Deputy City Attorney RECOMMENDED FOR APPROVAL CITY OF SANTA ANA 'G 414 Kristine Ridge City Manager ARTIST: Page 7 of 7 EXHIBIT A Exhibit A SCOPE OF SERVICES VENDOR INFORMATION: Marina Aguilem PROJECT: El Salvador Park Mural Paint/Tile — Garden Wall Building SERVICE DATE(S): May 2023 — June 2023 COMPENSATION DUE TO THE VENDOR: $6,000 DESCRIPTION: Marina Aguilera will be painting/tiling an 8ft x 14ft mural on the Garden wall building, located at El Salvador Park. $6,000 as follows: 50% upon executed agreement, 50% balance due at the end of project, approved by the Executive Director of PRCSA. a