Loading...
HomeMy WebLinkAboutHOWARD, MICHAEL - 2018City of Santa Ana Clerk of the Council COTC Office Use Only AGREEMENT TERMINATION FORM —� Please complete this form in its entirety when the attached agreement and991 SEP 77 _ pM 3� 11 amendments (if any) are no longer in effect. Note: If your agreement is grant related, please ensure that all grant retention requirements C� T OF SANTA A NA have been satisfied prior to signing the termination form. Cj- RK OF COU!j'Cjj, I i Is the agreement(s) a permanent record? Yes _ No I Return form to the Clerk of the Council Office (M-30). Call 647-1520 if you have any questions. The agreement with 01 chae"l pyWA - W 4Lak:c. No. N-2018-085 was completed one woe-- i i and final payment has been made. (List all amendments. Use space below if needed.) Department: C'Djq Phone/Ext.: 53 1-5 y� Signature: [9 r dY�A ` l rw��d .n Date: Revised 1478-16 INSURANCE NOT REQUIRED WORN MV 0ROrFF0 ._-UNCII. aT'Eo MY 2 s 2018 MURAL AGREEMENT AND GENERAL RELEASE (ANGELS PARK) N-2018-085 This Mural Agreement and General Release ("Agreement") is made and entered into as of May 11 , 2018, by and among the City of Santa Ana, a charter city �Z and municipal corporation ("City"), and. Michael Howard ("Artist') (each 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 paint a thirty-five (35) foot long by ten (10) foot high mural on the blank portion of the wall in Angels Park located at 200 N. Flower Street, Santa Ana ("Mural'). B. The Artist is sponsored by State Farm Insurance for the painting of the Mural. The City will be covering the labor and materials cost of an anti -graffiti coating to be applied to the Mural by the Artist. C. 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 a thirty-five (35) foot long by ten (10) foot high Mural on the blank portion of the wall in Angels Park located at 200 N. Flower Street, Santa Ana, as generally depicted in the renderings attached hereto as Exhibit A and incorporated herein by reference. B. After the Artist has completed painting the Mural, the Artist shall apply an anti -graffiti coating to the Mural. The City shall be responsible for any and all costs associated with the application of such permanent coating to the Mural. The Artist shall be responsible for any and all costs related to the painting of the Mural and the anything else related to the rest of the project. C. City agrees to pay, and Artist agrees to accept as total payment for his services, the rates and charges identified in Exhibit B attached herewith and incorporated herein by reference. The total sum to be expended under this Agreement by the City to Artist shall not exceed One Hundred Dollars ($100.00) as compensation for the anti -graffiti coating on the Mural. D. Payment by City shall be made within forty-five days (45) days following receipt of proper invoice, subject to City accounting procedures. Prepayment 11 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. E. City shall not be responsible for any other payments except as expressly stated herein. F. The Artist agrees to obtain all the necessary licenses and permits, if any, prior to commencing any Mural painting activities. G. The City recognizes that the painting 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. H. Artist shall ensure that any areas utilized for the Mural 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 painting of the Mural, trash and debris must be removed and cleaned up on a daily basis. Artist 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 wall indicated hereinabove. 4. Right to Use Image of Mural for Publicity Purposes The Artist grants the City the right to use any images, photographs or video of the Mural and the painting process for publicity or promotional purposes. 7 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 Neither of the Parties shall assign any rights or obligations under this Agreement. 7. Reserved 8. Safety Artist shall execute and maintain his work so as to avoid injury or damage to any person or property. In carrying out his 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 Liability Artist agrees 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. 10. Mutual Indemnification A. Artist 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, or his officers, officials, employees, or agents in connection with the Mural. 3 B. The City shall defend (with legal counsel reasonably acceptable to Artist), indemnify and hold harmless Artist, his 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. 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. Ell N-2018-085 IN WITNESS WHEREOF, the Parties hereto have executed this Mural Agreement and General Release the date and year first above written. ATTEST: CITY OF SANTA ANA e Clerk of - Council City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City AttorrDey By: o Ryan O. dge Assistant ity Att rney "ARTIST" MICHAEL HOWARD s Recommended for Approval: ��— STEVEN A. MENDOZA Executive Director Community Development Agency Recommended for Approval: GERARDO MOUET Executive Director Parks, Recreation, and.Community Services Agency Exhibit A Mural Renderings Exhibit B Mural Anti -Graffiti Coating Budget K-2018-085 Operation Clean Slate Materials & Costs for sealing mural at Angels Community Park Item Brand Cost Clear Coat Sealant Diamondbrand- Varathane $42.00 Roller & roller cover / Paint tray / Brushes Various $18.00 Labor / transportation / Insurances N/A $40.00 TOTAL $100.00 OP ID: BOLO f'♦` "- CERTIFICATE OF LIABILITY INSURANCE DATE(1m6/20Y8 V Og118/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER SchwCompany 17300 Redkert Hill 17300 Red Hill Avenue, ate 210 Irvine, CA 92614 CONTACT Lori Rosenfeld PHONE ac No:714.436.6498 E 1 714-689.1770 agnrsless: loci sch_ okert.com ooMoH ID a. OPERA-3 INSURER 8 AFFORDING COVERAGE INSURERA: Nonprofits' Insurance Alliance NAIC a INSURED Operation Clean Slate 1578 Minorca Drive Costa Mesa, CA 92626 INSURER9: INSURERC: INSURERD: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER• THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INBR TYPE OF INSURANCE P01 YNUMBER POLICYEF1 MMD YY P C P 1 YVVV LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 A X COMMERCIAL GENERAL LIABILITY X 2018-20739 02/15I2018 02/15/2019 PREMISEIraaceurtence It 600,000 CLAIMS -MADE XOCCUR MEDE%P(Anyoneperson) S 20,000 PERSONAL a ADV INJURY $ 1,000,00C GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER; PRODUCTS• COMP/OP AGO $ 2,000,000 POLICY PRO- LOC AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT ANYAUTO (Lacodden) $ BODILY INJURY(Parperson) $ ALL OWNED AUTOS BODILY INJURY (Per accidon0 $ SCHEDULEDAUTOS PROPERHIRED (PERACTIDENT) E (PER ACCIDENT) $ AUTOS NON-OWNEDAUTOS $ $ UMBRELLA LIAR OCCUR EACH OCCURRENCE It AGGREGATE $ EXCESS LIAB CLAIMS -MADE DEDUCTIBLE $ RETENTION WORKERS COMPENSATION WC STATU- OTH- AND EMPLOYERS' LIABWTY YIN E,L. EACH ACCIDENT $ ANY PROPRIETORIPANERIE OFFICERIMEM ERE%OIBDED7 ECUTIVE NIA E.L. DISEASE - EAEMPLOYEE $ (Mandatory In NH) Ifyyae dosoribe Under EL. DISEASE- POLICY LIMIT $ DESLIRIPTION OF OPERATIONS below 4 A DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES Attach ACORD 101, AtldlNonal Remarks schatlule, if more apace is required) to The City oq Sant Apa, it's officers, em ees, a ants and repres ntatives nar ed as ac�diklonal insured as is to tote �Ta �re resppe operations of named The City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS, AUTHORIZED REPRESENTATIVE 1988.2009 ACORD CORPORATION. All rinhfs rnnnn,ed ALJUKD m JAUUs106) The ACORD name and logo are registered marks of ACORD POLICY NUMBER: 2018-20739 COMMERCIAL GENERAL LIABILITY CG 20 15 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. FA 91111 • D 1 Sri. This endorsement modifies insurance provided under the fallowing: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s) (Vendor Your Products City of Santa Ana its officers employees, agents & representatives 20 Civic Center Plaza Santa Ana; CA 92701 Information required to complete this Schedule if not shown above, will be shown in the Declarations. A. Section II — Who Is An Insured is amended to include as an additional insured any person(s) or organization(s) (referred to throughout this endorsement as vendor) shown in the Schedule, but only with respect to "bodily injury' or "property damage" arising out of "your products" shown in the Schedule which are distributed or sold in the regular course of the vendor's business. However: 1. The insurance afforded to such vendor only applies to the extent permitted by law; and 2. If coverage provided to the vendor Is required by a contract or agreement, the insurance afforded to such vendor will not be broader than that which you are required by the contract or agreement to provide for such vendor. B. With respect to the insurance afforded to these vendors, the following additional exclusions apply: 1. The insurance afforded the vendor does not apply to: a. "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; b. Any express warranty unauthorized by you; c. Any physical or chemical change in the product made intentionally by the vendor; d. Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container, CG 2015 0413 © Insurance Services Office, Inc., 2012 Page 1 of 2 e. Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; f. Demonstration, Installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; g. Products which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor; or h. "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (1) The exceptions contained In Sub- paragraphs d, orf.; or (2) Such Inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. 2. This insurance does not apply to any Insured person or organization, from whom you have acquired such products, or any ingredient, part or container, entering into, accompanying or containing such products. C. With respect to the insurance afforded to these vendors, the following Is added to Section III — Llmits Of Insurance: If coverage provided to the vendor is required by a contract or agreement, the most we will pay on behalf of the vendor is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. Page 2 of 2 0 Insurance Services Office, Inc., 2012 CG 20 15 0413 NONPROFITS INSURANCE ALLIANCE OF CALIFORNIA A Head for insurance. A Heart for Nonprofits. POLICY NUMBER: 2018-20739 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED PRIMARY AND NON-CONTRIBUTORY ENDORSEMENT FOR PUBLIC ENTITIES This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART A. SECTION II —WHO IS AN INSURED is amended to include any public entity as an additional insured for whom you are performing operations when you have agreed in a written contract or written agreement that such public entity be added as an additional insured(s) on your policy, but only with respect to liability for "bodily injury', "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your negligent acts or omissions; or 2. The negligent acts or omissions of those acting on your behalf; in the performance of your ongoing operations. No such public entity is an additional insured for liability arising out of the "products -completed operations hazard" or for liability arising out of the sole negligence of that public entity. B. With respect to the insurance afforded to these additional insured(s), the following additional exclusions apply. This insurance does not apply to "bodily injury' or "property damage" occurring after: 1. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. C. The following is added to SECTION III — LIMITS OF INSURANCE: The limits of insurance applicable to the additional insured(s) are those specified in the written contract between you and the additional insured(s), or the limits available under this policy, whichever are less. These limits are part of and not in addition to the limits of insurance under this policy. D. With respect to the insurance provided to the additional insured(s), Condition 4. Other Insurance of SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS is replaced by the following: 4. Other Insurance a. Primary Insurance This insurance is primary if you have agreed in a written contract or written agreement: (1) That this insurance be primary. If other insurance is also primary, we will share with all thatLb other insurance as described in c. below; or , ��yyi (2) The coverage afforded by this insurance is primary and non-contributory with the additional t insured(s)' own insurance. NIAC-E61 02 17 Page 1 of 2 Paragraphs (1) and (2) do not apply to other insurance to which the additional insured(s) has been added as an additional insured or to other insurance described in paragraph b. below. b. Excess Insurance This insurance is excess over: 1. Any of the other insurance, whether primary, excess, contingent or on any other basis: (a) That is Fire, Extended Coverage, Builder's Risk, Installation Risk or similar coverage for "your work"; (b) That is fire, lightning, or explosion insurance for premises rented to you or temporarily occupied by you with permission of the owner; (c) That is insurance purchased by you to cover your liability as a tenant for "property damage' to premises temporarily occupied by you with permission of the owner; or (d) If the loss arises out of the maintenance or use of aircraft, "autos" or watercraft to the extent not subject to Exclusion g. of SECTION I — COVERAGE A— BODILY INJURY AND PROPERTY DAMAGE. (a) Any other insurance available to an additional insured(s) under this Endorsement covering liability for damages which are subject to this endorsement and for which the additional insured(s) has been added as an additional insured by that other insurance. (1) When this insurance is excess, we will have no duty under Coverages A or B to defend the additional insured(s) against any "suit" if any other insurer has a duty to defend the additional insured(s) against that "suit". If no other insurer defends, we will undertake to do so, but we will be entitled to the additional insured(s)' rights against all those other insurers. (2) When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (a) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (b) The total of all deductible and self -insured amounts under all that other insurance. (3) We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Methods of Sharing If all of the other insurance available to the additional insured(s) permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any other the other insurance available to the additional insured(s) does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. 6 NIAC-E61 02 17 Page 2 of 2