CONTRACT 5838C Other CLOSEDAgreement No. 5838C
AGREEMENT FOR MAIN / IMPERIAL GATEWAY ART PROJECT
PROPOSALS BETWEEN
THE CITY OF EL SEGUNDO AND
LOOKING
THIS AGREEMENT ("Agreement") is made and entered into this 18th day of
November, 2019, by and between the CITY OF EL SEGUNDO, a general law city and
municipal corporation ("CITY") and LOOKING ("ARTIST").
RECITALS
A. In 2018, the CITY directed and funded a Capital Improvement Project (CIP) for
an entry gateway at Main Street and Imperial Highway in the City;
B. The CITY's Gateway Committee conducted a Call for Artist Team —Request for
Qualifications, and ARTIST is one of five artist teams selected to be a finalist;
C. ARTIST will submit a concept proposal to be judged later by a jury of
professionals. Upon approval by City Council, the selected ARTIST will enter into
a Public Works standard contract for construction documents.
The parties agree as follows:
1. SCOPE OF SERVICES. ARTIST agrees to perform the following services:
A. By 5:00 p.m. on January 21, 2020, submit a concept statement and a detailed
site plan, digital rendering and/or model to scale of the ARTIST's project with
actual dimensions indicated. The ARTIST shall also include a section and
elevation, a description of the materials and their durability, and an
explanation of the project's maintenance requirements.
B. Also by 5:00 p.m. on January 21, 2020, submit a timeline which outlines the
production and installation of ARTIST's project along with a detailed budget
which includes installation of the project. There is a $140,000 budget for this
project.
C. On January 23 rd, 2020, ARTIST will make a presentation to the Gateway
Project Jury at City Hall's West Conference Room between 1-5 p.m. (A
specific start time will be provided to ARTIST.)
2. COMPENSATION. The CITY agrees to pay ARTIST $2,000 as full and complete
compensation for work performed and services rendered under this Agreement.
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3. ARTIST'S RESPONSIBILITIES, WARRANTIES AND ACKNOWLEDGMENTS.
A. Personnel and Equipment. ARTIST has, or will secure at ARTIST's sole cost
and expense, all personnel and equipment required to perform ARTIST's
services. ARTIST, and all persons retained by ARTIST shall possess the
requisite licenses and permits necessary to perform the work.
B. ARTIST acknowledges that if ARTIST's proposal is selected by the CITY,
ARTIST shall enter into a Public Works standard contract for construction
documents and subject to insurance requirements.
C. Prevailing Wages. ARTIST acknowledges that if ARTIST's proposal is the
successful proposal for actual construction and installation, any work to be
fabricated and/or installed on CITY property may be subject to the payment of
prevailing wages. If so, ARTIST shall pay or cause to be paid prevailing
wages for all work performed under the Agreement to be entered between
CITY and the successful proposer.
D. ARTIST acknowledges and agrees that CITY may, for record-keeping and
archival purposes only, photograph, film or videotape any objects and
photocopy any printed materials that are part of ARTIST's proposal.
E. ARTIST acknowledges that, if ARTIST's proposal is selected by CITY, CITY,
in its sole discretion, may request ARTIST make revisions to the proposal
before the art work is constructed or installed. If ARTIST does not agree to
such revisions, ARTIST further acknowledges and agrees that CITY may, in
its sole discretion, rescind its selection of ARTIST's proposal as the
successful proposal and may award the contract for the final art work
installation to another artist.
F. ARTIST further acknowledges that if ARTIST's proposal is not selected, the
CITY will have the right to terminate this Agreement by giving written notice to
ARTIST and then CITY will have no further liability in respect hereof. For a
period of 30 days after the Agreement is terminated, ARTIST may request the
return of any or all objects or documents ARTIST submitted as part of the
proposal, and CITY agrees to promptly return such objects or documents.
Any objects or documents not requested to be returned per this section will, at
the CITY's option, become its property and CITY may dispose of such objects
or documents as it so chooses.
G. ARTIST warrants that ARTIST is the sole and absolute owner of the proposed
art work and the art work design, that all art work created or performed by
ARTIST under this Agreement is wholly original with ARTIST and ARTIST
has not previously sold, assigned, licensed, granted, encumbered or utilized
the proposed art work or art work design, or any element thereof, in any
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manner which may affect the CITY's ability to show the work, reproduce the
art work or maintain the art work in the future.
H. Commercial Content. The proposed concept must not include an advertisement
or be commercial in nature. The proposed concept must not contain copy,
lettering, symbols or references directly to the promotion of any product,
business, brand, organization, service, cause or place. The proposed concept
may contain limited commercial elements so long as they are not considered
commercial speech with the purpose of promoting a commercial transaction.
I. Obscene and Indecent Content. The proposed concept must not contain any
indecent or obscene content.
J. ARTIST acknowledges that CITY reserves the right to terminate this Agreement
without awarding any contract to any proposer, to reject all of the submissions
and to re -advertise for new proposals. By entering this Agreement, CITY is not
obligated to award the contract to any proposer.
4. CITY'S RESPONSIBILITIES.
A. CITY will advise ARTIST in writing whether ARTIST was selected as the
successful proposer. The CITY reserves the right to request ARTIST revise
the proposal before the work is constructed or installed.
B. If ARTISTS's proposal is not selected as the successful proposal, and
ARTIST requests the return of any objects or documents ARTIST submitted
as part of the proposal, CITY agrees to promptly return such objects or
documents.
5. TERMINATION. CITY may elect to terminate this Agreement at any time without
any liability to ARTIST. ARTIST may terminate this Agreement at any time with
30 days' written notice to CITY and any payment not yet made by the CITY as of
the date of the notice will be forfeited.
6. PROPOSED ART WORK SPECIFICATIONS.
A. The proposed concept should be uniquely reflective of the City of EI Segundo:
its character, nature, history and potential future. It should engage the public
and spur further development of the City.
B. The proposed concept shall follow the following criteria/guidelines and
parameters: Improvements may incorporate some of the following elements:
1. Uniquely reflective of EI Segundo: its character, nature, history and
potential future.
2. The words 'EL SEGUNDO' shall be incorporated in a horizontal format.
3. Iconic, Unique, Organic, Kinetic/Moving, Photo opportunity, Safe
4. Abstract rather than literal interpretation of EI Segundo (aerospace,
refinery, tech, ocean/beach, blue butterfly)
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5. Makers/Doers/Tinkerers
6. Welcoming but not using the words `Welcome To'
7. Scaled to the intersection
8. New landscaping
9. Lighting
10. The existing rock walls shall remain. The other elements, landscaping
and signage may be removed
11. Height restrictions due to overhead utility lines. City to provide
restrictions.
12. No over the street structures.
13. No water fountains
7. INDEMNIFICATION. ARTIST agrees to protect, defend, indemnify and hold
harmless the City of EI Segundo, its elected and appointed officials, members,
agents, and employees against any claims, costs, damages, demands, liability,
and notices, or any of these, arising or resulting from any damage or injury
proximately caused by actions of the ARTIST in the performance of this
Agreement, except for those claims, costs, damages, demands, liability, and
notices, or any of these, caused solely by the negligence or willful misconduct of
CITY. ARTIST further agrees to protect, defend, indemnify and hold harmless
CITY, its elected officials, members, agents and employees from any action,
claim, suit or liability brought against CITY alleging that the proposed art work
infringes the intellectual property rights of any third parties. This section shall
survive termination of this Agreement.
8. INTELLECTUAL PROPERTY.
A. Copyright. Subject to the restrictions and usage rights and licenses granted to
CITY hereunder, and unless otherwise agreed to by the parties in writing,
ARTIST shall retain all 17 U.S.C. §106 copyrights in all original works of
authorship produced under this Agreement. If ARTIST is comprised of two or
more individual persons, the individual persons shall be deemed joint authors
of the proposal.
B. Notwithstanding the foregoing, ARTIST agrees that CITY may make, display,
and distribute, and authorize the making, display, and distribution of
photographs and other reproductions of the proposed art work to evaluate the
proposal.
C. No Third Party Infringement. ARTIST represents and warrants that the
proposed art work submitted pursuant to this Agreement is the sole work of
the ARTIST and does not infringe the intellectual property rights of any third
parties. CITY is not responsible for any third -party infringement of ARTIST's
copyright or for protecting ARTIST's intellectual property rights.
D. Waiver of ARTIST's Rights. With respect to the proposed art work produced
under this Agreement, and in consideration of the procedures and remedies
specified in this Agreement, ARTIST hereby waives any and all claims,
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arising at any time and under any circumstances, against CITY, its officers,
agents, employees, successors and assigns, arising under the federal Visual
Artists Rights Act (17 U.S.C. §§106A and 113(d)), the California Art
Preservation Act (Cal. Civil Code §§987, et seq.), and any other local, state,
federal or international laws that convey rights of the same nature as those
conveyed under 17 U.S.C. §106A, Cal. Civil Code §§ 987, et seq., or any
other type of moral right protecting the integrity of works of art.
9. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL ONE
PARTY TO THIS AGREEMENT BE LIABLE TO THE OTHER PARTY FOR ANY
SPECIAL, CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES,
INCLUDING LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT, OR ANY ACTIVITIES PERFORMED IN CONNECTION
WITH THIS AGREEMENT, REGARDLESS OF WHETHER A CLAIM MADE BY
THAT PARTY IS BASED ON CONTRACT OR TORT.
10. INSURANCE,
A. Before commencing performance under this Agreement, and at all other times
this Agreement is effective, ARTIST will procure and maintain the following
types of insurance with coverage limits complying, at a minimum, with the
limits set forth below:
Iyi)e of Insurance
Commercial general liability:
Business automobile liability:
Workers compensation
Limits (combined sinctle)
$1 Million
$1 Million
Statutory requirement
B. Commercial general liability insurance will meet or exceed the requirements
of ISO -CGL Form No. CG 00 01 11 85 or 88, or equivalent. The amount of
insurance set forth above will be a combined single limit per occurrence for
bodily injury, personal injury, and property damage for the policy coverage.
Liability policies will be endorsed to name City, its officials, and employees as
"additional insureds" under said insurance coverage and to state that such
insurance will be deemed "primary" such that any other insurance that may be
carried by City will be excess thereto. CITY's additional insured status will
apply with respect to liability and defense of suits arising out of
CONSULTANT's acts or omissions. Such insurance will be on an
"occurrence," not a "claims made," basis and will not be cancelable or subject
to reduction except upon 30 days prior written notice to City.
C. Automobile coverage will be written on ISO Business Auto Coverage Form
CA 00 01 06 92, including symbol 1 (Any Auto), or if CONSULTANT does not
own or lease autos, Hired/Non-Owned Automobile Liability (symbols 8, 9).
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D. ARTIST acknowledges that if ARTIST's proposal is the successful proposal
for actual construction and installation, ARTIST will be required to procure
commercial general liability insurance with a coverage limit of at least $1
million as described below.
E. Commercial general liability insurance will meet or exceed the requirements
of ISO -CGL Form No. CG 00 01 11 85 or 88, or equivalent. The amount of
insurance set forth above will be a combined single limit per occurrence for
bodily injury, personal injury, and property damage for the policy coverage.
Liability policies will be endorsed to name City, its officials, and employees as
"additional insureds" under said insurance coverage and to state that such
insurance will be deemed "primary" such that any other insurance that may be
carried by City will be excess thereto. CITY's additional insured status will
apply with respect to liability and defense of suits arising out of LICENSEE's
acts or omissions. Such insurance will be on an "occurrence," not a "claims
made," basis and will not be cancelable or subject to reduction except upon
30 days prior written notice to City.
F. ARTIST will furnish to City valid Certificates of Insurance evidencing
maintenance of the insurance required under this Agreement, a copy of an
Additional Insured Endorsement as required herein, and such other evidence
of insurance or copies of policies as may be reasonably required by City from
time to time. Insurance must be placed with insurers with a current A.M. Best
Company Rating equivalent to at least a Rating of "A:VII." Certificate(s) must
reflect that the insurer will provide 30 days' notice of any cancellation of
coverage. ARTIST will require its insurer to modify such certificates to delete
any exculpatory wording stating that failure of the insurer to mail written notice
of cancellation imposes no obligation, and to delete the word "endeavor" with
regard to any notice provisions.
G. Should ARTIST, for any reason, fail to obtain and maintain the insurance
required by this Agreement, CITY may obtain such coverage at ARTIST's
expense and deduct the cost of such insurance from payments due to
ARTIST under this Agreement or terminate.
11. INDEPENDENT CONTRACTOR. CITY and ARTIST agree that ARTIST will act
as an independent contractor and will have control of all work and the manner in
which it is performed. ARTIST will be free to contract for similar service to be
performed for other employers while under contract with CITY. ARTIST is not an
agent or employee of CITY and is not entitled to participate in any pension plan,
insurance, bonus or similar benefits CITY provides for its employees. Any
provision in this Agreement that may appear to give CITY the right to direct
ARTIST as to the details of doing the work or to exercise a measure of control
over the work means that ARTIST will follow the direction of the CITY as to end
results of the work only.
12. NOTICES.
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Agreement No. 5838C
A. All notices given or required to be given pursuant to this Agreement will be in
writing and may be given by personal delivery or by mail. Notice sent by mail
will be addressed as follows:
To CITY: City of EI Segundo
350 Main Street
EI Segundo, CA 90245
TO ARTIST: LOOKING, John Clark
214 Main St. #302
EI Segundo, CA 90245
C. When addressed in accordance with this paragraph, notices will be deemed
given upon deposit in the United States mail, postage prepaid. In all other
instances, notices will be deemed given at the time of actual delivery.
D. Changes may be made in the names or addresses of persons to whom
notices are to be given by giving notice in the manner prescribed in this
paragraph.
13. NO ASSIGNMENT. The parties agree that the expertise and experience of
ARTIST are material considerations for this Agreement. Unless approved by the
CITY in writing, ARTIST may not transfer any interest in this Agreement or the
performance of any of ARTIST's obligations hereunder, and any attempt by
ARTIST to do so shall be void and of no effect.
14. WAIVER. A waiver by CITY of any breach of any term, covenant, or condition
contained in this Agreement will not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant, or condition contained in this
Agreement, whether of the same or different character.
15. CONSTRUCTION. The language of each part of this Agreement will be
construed simply and according to its fair meaning, and this Agreement will never
be construed either for or against either party.
16. SEVERABLE. If any portion of this Agreement is declared by a court of
competent jurisdiction to be invalid or unenforceable, then such portion will be
deemed modified to the extent necessary in the opinion of the court to render
such portion enforceable and, as so modified, such portion and the balance of
this Agreement will continue in full force and effect.
17. INTERPRETATION. This Agreement was drafted in, and will be construed in
accordance with the laws of the State of California, and exclusive venue for any
action involving this agreement will be in Los Angeles County.
18. AUTHORITY/MODIFICATION. This Agreement may be subject to and
conditioned upon approval and ratification by the EI Segundo City Council. This
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Agreement is not binding upon CITY until executed by the City Manager or
designee. The Parties represent and warrant that all necessary action has been
taken by the Parties to authorize the undersigned to execute this Agreement and
to engage in the actions described herein. This Agreement may be modified by
written agreement. CITY's city manager or designee may execute any such
amendment on behalf of CITY.
19. ACCEPTANCE OF ELECTRONIC SIGNATURES. The Parties agree that this
Agreement, agreements ancillary to this Agreement, and related documents to
be entered into in connection with this Agreement will be considered signed
when the signature of a party is delivered by electronic (.pdf) or facsimile
transmission. Such electronic or facsimile signature will be treated in all respects
as having the same effect as an original signature.
20. CAPTIONS. The captions of the paragraphs of this Agreement are for
convenience of reference only and will not affect the interpretation of this
Agreement.
21. FORCE MAJEURE. Should performance of this Agreement be prevented due to
fire, flood, explosion, war, terrorist act, embargo, government action, civil or
military authority, the natural elements, or other similar causes beyond the
Parties' control, then the Agreement will immediately terminate without obligation
of either party to the other.
22. ENTIRE AGREEMENT. This Agreement constitutes the sole agreement between
CITY and ARTIST respecting the art work proposal. There are no other
understandings, terms or other agreements expressed or implied, oral or written.
IN WITNESS WHEREOF the parties hereto have executed this Agreement the
day and year first hereinabove written.
CITY,qF EL SEGUNDO ARTIS
' AV SM
o G
jSt Minnick, LOOKING
City Manager
ATTEST: Tax ID Number:
95-4381881
Tracyeaver,
City Clerk
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APPROVED AS TO FORM:
Mark D. Hensley,
City Attorney
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