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HomeMy WebLinkAboutGRAIN PROJECT, THE, WORKSHOP FOR COMMUNITY ARTS, AND RYAN CHASE - 2013INSURANCE NOT ON FILE WORK MAY NOT PROCEED CLERK OF COUNCIL DATE: fEP 18 2013 AGREEMENT AND GENERAL RELEASE (DOWNTOWN MURAL) This Agreement and General ele se (hereinafter "Agreement") is made and entered into as o ? ,x2013, by and among the City of Santa Ana, a charter city and municipal corporation (hereinafter "City"), The Grain Project (hereinafter "Sponsor"), the J' Workshop for Community Arts (hereinafter "Workshop") and Ryan Chase (hereinafter "Mr. Chase") (all three also collectively referred to as "the Parties") in light of the following facts: Recitals A. The City seeks to highlight its rich history and vibrant Downtown arts community by commissioning the installation of a mural in the Downtown area. B. The Sponsor is a registered non-profit organization that is dedicated to promoting strong communities through public art which will serve in the role of fiscal sponsor with regard to the installation of the mural. C. The Workshop is a collective of local artists with expertise in the installation, design and painting of murals. D. Mr. Chase is a local business leader who supports the arts in the Downtown community. E. The Parties will ensure to solicit participation in the mural installation from a broad range of community members. F. The mural, although it may be temporary, will improve the aesthetics of the Downtown 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 City is hereby providing guidance in regards to the concept, themes and ideas for the design of the downtown mural. As such, the Sponsor and Workshop shall design and paint a mural representing the City's history and leadership in Orange Country ("the Mural"). N-2013-129 B. The Sponsor and Workshop shall cause the Mural to be created and painted directly upon the south facing wall of the City- owned parking structure located at 350 E. Fifth Street, Santa Ana, California ("the Project"). C. The City shall pay the Workshop the sum of Two Hundred and Fifty Dollars ($250) as compensation for completing the Mural. The City shall pay the Workshop by check within sixty (60) days from the date the Project is complete. D. The Workshop will present the City with the proposed design of the Mural prior to its installation. The City Manager will review the proposed design and will approve or reject the design in has sole discretion. In addition, the City retains the right to terminate the Mural installation process or remove the Mural at any time including after installation has commenced or the Mural is complete. E. The Sponsor and Workshop will conduct community outreach to gather input from community members on the design of the Mural. Outreach efforts will include, but not be limited to, activities such as interviews and meetings with community members. On-site outreach efforts will be limited to standing room only gatherings. The Sponsor and Workshop shall be responsible for the cost of obtaining a special event permit if such is required due to the meetings or anything in connection with or arising out of the Project and installation of the Mural. F. Mr. Chase will be responsible for the maintenance of the Mural, which includes but is not limited to, graffiti removal and paint touch-up for the duration of the Mural's existence on said building. O. The Sponsor and Workshop agree to obtain all the necessary licenses and permits, such as street closure permits and/or encroachment permits, prior to commencing any mural installation activities. The City will work with the Sponsor and Workshop to obtain the required licenses and permits. The costs related to all required licenses and permits shall be the responsibility of the Sponsor and/or Workshop. H. Mural installation activities shall cease and not be allowed on trash pick-up days so as to not interfere with those vital services in the Downtown. 1. Parties shall ensure that any areas utilized for the Mural installation project, whether it be the alley, Plaza Santa Ana or other public areas or improvements are maintained and restored to a well-maintained, safe, sanitary, and clean condition, and kept free of any hazardous waste 2 at all times. All equipment associated with the installation 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 installation is underway, which barrier shall be removed each day upon completion of an installation session. J. Parties shall have access to the subject wall for Mural installation based on a set schedule ("Schedule") and must apply for and receive any and all necessary permits to ensure proper coordination with the City so that public safety, services and access can be maintained as necessary. Said Schedule is subject to the approval of the City Manager or his designee and must be submitted within 14 days of the date of this Agreement. The Schedule shall indicate the anticipated dates and blocks of time for the installation to be performed. If said Schedule is not submitted within the 14 days, City can unilaterally stop the Mural Project. The City recognizes that the creation of the Mural is an artistic endeavor utilizing a variety of artists 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. 2. Representatives of Parties A. The Sponsor shall serve as the fiscal sponsor for the installation of the Mural by the Workshop and its members. Lara Montagne shall be deemed the Sponsor Representative for purposes of this Agreement. S. The Mural will be designed, created and supervised by members of the Workshop, subject to prior approval of the City as indicated herein. Adriana Alexander shall be deemed the Workshop Representative for purposes of this Agreement. 3. Waiver of Rights to Maintain Artwork The Sponsor and Workshop hereby waive any legal rights that either party may have under Federal, State, local and/or Administrative law to maintain the Mural upon the building indicated hereinabove. The Sponsor and Workshop hereby give the City the right to remove the Mural from the building at any time in the sole and absolute discretion of the City. 3 4. Right to Use Image of Mural for Publicity Purposes The Sponsor and Workshop grant the City the right to use any images, photographs or video of the Mural and the installation process for publicity or promotional purposes and agree that the results of such activity shall remain the sole property of the City of Santa Ana. 5. Ownership of Copyright The Sponsor and Workshop shall retain all copyrights to the Mural image. The City shall identify the Sponsor and Workshop as the creator of the Mural Image when it is used in promotional or publicity materials. 6. Assignment None of the parties shall assign any rights or obligations under this Agreement. 7. Time of Completion The City recognizes that the creation of the Mural is an artistic endeavor that cannot be completed on a date certain. The parties believe the Project will take approximately twelve (12) weeks. Therefore, the City and the Sponsor agree to a target date for completion of the Mural of December 13, 2013. In any event the Sponsor and Workshop must complete the Mural no later than December 31, 2013, subject to Section U. above. 8. Insurance Requirements A. Time for Compliance. Sponsor shall not commence any services under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Sponsor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. S. Minimum Requirements. Sponsor shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Sponsor, its agents, representatives, employees or subcontractors. Sponsor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: 4 (i) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); and (2) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. (ii) Minimum Limits of Insurance. Sponsor shall maintain limits no less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; and (2) Workers' Compensation and Employer's Liability: Workers' Compensation limits as required by the Labor Code of the State of California. Employer's Liability limits of $1,000,000 per accident for bodily injury or disease. If Sponsor does not have employees as defined by the Labor Code, Sponsor shall sign the Waiver attached hereto and incorporated herein as Exhibit A. C. Insurance Endorsements. The insurance policies shall contain the following provisions, or Sponsor shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies: (i) General Liability. The general liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the services or operations performed by or on behalf of the Sponsor, including materials, parts or equipment furnished in connection with such work; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Sponsor's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Sponsor's insurance and shall not be called upon to contribute with it in any way. (il) Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Sponsor. (iii) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other s provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers. D. Separation of Insureds. No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents and volunteers. E. Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. Sponsor shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents and volunteers; or (2) the Sponsor shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense. F. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VII, licensed to do business in California, and satisfactory to the City. G. Verification of Coverage. Sponsor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. H. Safety. Sponsor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its services, the Sponsor 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 6 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 A. The Sponsor and Workshop 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 or installation of the Mural and the completion of the Project. B. The City agrees to hereby fully release and forever discharge the Sponsor and its employees and agents 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 the City or its officers, officials, employees or agents or the condition of City's building in connection with the creation, painting or installation of the Mural and the completion of the Project. 10. Mutual Indemnification A. The Sponsor and Workshop 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 Sponsor and Workshop, their officers, officials, employees, or agents in connection with the Mural. B. The City shall defend (with legal counsel reasonably acceptable to the Sponsor and Workshop), indemnify and hold harmless the Sponsor and Workshop, 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' flees, 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. 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 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. 8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement and General Release the date and year first above written. ATTEST: MARIA D. FIUIZAR Clerk of the Council APPROVED AS TO FORM: SOMA R. CARVALHO City Attorney By: ,c., C . iL Lisa E. Storck Assistant City Attorney "SPONSOR" THE GRAIN PROJECT By:.. Title: ??CEC r1?\y ¢al 7?Y? "MR. CHASE" RYAN CHASE By: CITY OF.&AVTA ANA Interim City Manager Interim Executive Director Community Redevelopment Agency "WORKSHOP" WORKSHOP FOR COMMUNITY ARTS By: /??" 2 ? v a Ad/0.? . Title: _Pro b;eP. Title: M cam ate/ Exhibit A WAIVER WORKERS' COMPENSATION DECLARATION G,,\aP rvto ?-j T A 6? I ?C?C 3T1V? D I whereby affirm under penalty of perjury, the (Name/Title) following declaration : I certify on behalf of ]a±C U a A IN f A<XlEt " that during the term of my (Organization Name) agreement between the 'j}} 6" (Zti1 j r? kofLfk'C? and the City of Santa Ana, for QLA'Zfr SA-oJT?F Nl* M U R N L purposes/services, I currently do not not employ any person in any manner so as to become subject to the workers' compensation laws of California. I agree that if this changes and I should become subject to the workers' compensation provisions of Section 3700 of the Labor Code, I shall forthwith comply with those provisions. DATE: Signature I By: 1 - Name: Title: (?C Zy? j\ ?EZC?` Telephoner ll! ?j 2 , °23°J'2 WARNING: FAILURE TO SECURE WORKERS' COMPENSATION COVERAGE IS UNLAWFUL, AND SHALL SUBJECT AN EMPLOYER TO CRIMINAL PENALTIES AND CIVIL FINES UP TO ONE HUNDRED THOUSAND DOLLARS ($100,000). IN ADDITION TO THE COST OF COMPENSATION, DAMAGES AS PROVIDED FOR IN SECTION 3706 OF THE LABOR CODE, INTEREST, AND ATTORNEY'S FEES. 10