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HomeMy WebLinkAboutCARLIE STRACKACity of Santa Ana COTC Office Use Only t Clerk of the Council AGREEMENT TERMINATION FORM Please complete this form in its entirety when the attached agreeme rf II PM 2: L12 amendments (if any) are no longer in effect. Note: If your agreement is grant related, please ensure that all grant retention requiremenrss ( T Y Q F A jN T Z A W A have been satisfied prior to signing the termination form. C L E R f 01F C G U N i ) L Is the agreement(s) a permanent record? Yes No Return form to the Clerk of the Council Office (M-30). Call 647-1520 if you have any questions. The agreement with byt � I', (`K!w Ag,<- N-2020-042 Ott — 7 7� ! rrri Are No. was completed on iQ) and fi a paymen as een ma e. (List all amendments. Use space below if needed.) Pgfffr(e� Teyrm'1m4ed .��.. Department: CAA Mfrs CtJ/d �CL1'TULA(P. Phone/Ext.: 4J `55 5356 f-C' `r I& Signature: Date: Oaych iB , w'-Lo ilagreemen(Oonnslform - agreement termination form_goldenrod.doc N-2020-042 ARTIST AGREEMENT (du ' This Artist Agreement ("Agreement") is made and entered this 27th day of February, 2020, by and between the City of Santa Ana, a charter City and municipal N corporation organized and existing under the Constitution and laws of the State of o California ("City"), and Carlie Stracka ("Artist"). City and Artist may herein individually be referred to as a "Party" and collectively be referred to as the "Parties" to the Agreement. 0 RECITALS: A. City desires to engage Artist to render such public art known as "Monarch Miracle" ("Artwork") for the Willits and Sullivan Beautification Project Permanent Display ("Project") located on the city -owned lot on the corner of Willits and Sullivan ("Site"). A true and correct copy of Artist's Scope of Work is attached hereto as Exhibit A and incorporated herein by reference. B. On January 16, 2020, the Arts and Culture Commission reviewed the Project and recommended that Artist be selected to install the Artwork on the Site. C. In undertaking the performance pursuant to this Agreement, Artist represents that she is skilled and knowledgeable in the arts and culture arena and that the Artwork created hereunder for the Project 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 signature by both Parties and shall expire one (1) year from the date first written above, unless terminated earlier in accordance with this Agreement. The term of this Agreement may be extended upon a writing executed by the 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 Eighteen Thousand Dollars ($18,000.00). 2.2. Artist will be paid in two (2) installments. First payment will be half of the funding amount provided above, or $9,000, and will be provided within thirty (30) days of the full execution of the Agreement by the parties and City's receipt of an invoice from Artist. The second and final payment will include the remaining amount of $9,000 and will be issued within thirty (30) days after the Artist submits to the City all the proper invoices and final report for the Project. 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. 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. z 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. 4. Termination. 4.1. City may immediately terminate this Agreement upon one or more of the following: 4.1.1. Artist's violation of any federal, state or local law or regulation. 4.1.2. Artist's breach of any of the terms or conditions of this Agreement, including the Application and Timeline, or any unapproved deviation from said documents that has not been cured within 30 days of written notice of such breach. 4.2. In the event the Agreement is terminated under Section 4.1, 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. 5. Limitation of Liability. 5.1. 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. 5.2. Section 5 and Section 6 do not IimitArtist's rights, including its abilityto seek recovery, against anyone other than City, its directors, officers, employees, agents, successors and assigns. 6. Indemnification. 6.1. Artist shall defend, indemnify, protect and hold harmless the City, and its 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 to be the 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) arise from the sole negligence or sole willful misconduct of the City subsequent to declaration by the Artist. Artist's obligations shall survive the termination of this Agreement. 6.2. 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, performance or installation of the Project hereunder. 3 6.3. Artist further agrees that City may in good faith and on reasonable terms settle any such claims and that City's right to indemnification shall extend to any such settlement, provided City has given notice of such claim and its intent to settle. City's right to indemnification is in addition to, and may be exercised independently of, any remedy held by City under this Agreement, at law or in equity. The indemnity provision set forth in this Agreement shall survive the termination or expiration of this Agreement indefinitely. 7. General Provisions. 7.1. Artist shall acquire prior written permission from City for any use of the City name or logo in association with its Artwork. 7.2. 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. 7.3. Artist shall comply with all governmental requirements that may now or in the future become applicable to its Services under this Agreement. 7.4. 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. 7.5. 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. 7.6. 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 Project title. All notices will be sent to the other Party at its address as set forth below or at such other address as such Partywill have specified in a notice given in accordance with this section: Artist: Carlie Stracka PO Box 7092 Rancho Santa Fe, CA 92067 N 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 7.7. 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. 7.8. 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. 7.9. Any funds provided under this Agreement that are not expended, obligated or otherwise committed by the termination or expiration of this Agreement shall be immediately returned to City. 7.10. Artist grants to City a non-exclusive, irrevocable, transferable, royalty free, worldwide license to use, reproduce, display, distribute, and prepare derivative works, in any form or media at the discretion of the City for the Artwork conceived, performed or created as a result of this Agreement. 7.11. 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. 7.12. Neither Party shall assign any rights or obligations under this Agreement. 7.13. 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. 5 7.14. 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. 7.15. 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. 7.16. 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. {Signatures on following page) IN WITNESS WHEREOF, the parties hereto have executed this Artist Agreement the date and year first above written. ATTEST: DAISY GOMEZ Clerk of the Council APPROVED AS TO FORM: Sonia R. Carvalho City 64rnEy By: Ry n� Hodge Assi t y Attorney RECOMMENDED FOR APPROVAL: Steven A. Mendoza Executive Director Community Development Agency CITY OF SANTA ANA KRISTINE RIDGE �— City Manager ARTIST: Uarlie Stracka EXHIBIT A SCOPE OF WORK I Budget: Steel materials and fabrication, Electrolurgy: $3,225 Landscaping, pathway: $1,075 Materials: Wood, grout, thin set, clay, glaze, hardware, sealant ... etc. $2,500 Insurance: $700 Liberty Mutual Installation, Ralph Hernandez Co Inc: $3,000 Footing, Ralph Hernandez Co Inc: $7,000 Transportation: $500 Total: $18,000 Willits & Sullivan Beautification Project Permanent Public Art Display Timeline "MONARCH MIRACLES" DATE PROJECT TASK LOCATION March 2020 Butterflies Fabricated, Art Workshop with students Stanford Sign & Awning 2556 Faivre St, Chula Vista, CA; Willits & Sullivan, Lincoln Elementary School April 2020 Mosaic on 5' butterfly artist studio May 2020 Mosaic on 2'butterfly artist studio June 2020 Mosaic on 4' butterfly artist studio July 2020 Mosaic on 3' butterfly artist studio August 2020 Mosaic on 2' butterfly artist studio September 2020 Install on site, 1 week footing, 1 week kids' tiles Willits & Sullivan, Lincoln Elementary School