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CONTRACT 5575A Other CLOSED Agreement No. 5575A AGREEMENT FOR CENTENNIAL ART PROJECT PROPOSALS BETWEEN THE CITY OF EL SEGUNDO AND SHANA AND VINCENT ALPINO THIS AGREEMENT ("Agreement") is made and entered into this 28th day of August, 2018, by and between the CITY OF EL SEGUNDO, a general law city and municipal corporation ("CITY") and SHANA AND VINCENT ALPINO ("ARTISTS"). RECITALS A. In 2017, the CITY celebrated its 100th anniversary and, to commemorate the anniversary, desires to commission an art work to be permanently installed in a prominent location in the City; B. The CITY's Arts and Culture Advisory Committee conducted a Call for Artists, and ARTISTS are one of four artists selected to be a finalist; C. ARTISTS will submit an art work proposal to be judged later by a jury of professionals; the selected artist will then be commissioned to create the final, permanent art work within the City. The parties agree as follows: 1 SCOPE OF SERVICES. ARTISTS agrees to perform the following services: A. By September 29 , 2018 (at 5 p.m.), submit an artist's statement and a detailed sketch, digital rendering and/or model to scale of the ARTISTS' project with actual dimensions indicated and plans for placement. Describe the materials and their durability. Please also include an explanation of the maintenance requirements and an estimate of the maintenance expenses. B. By September 29, 2018 (at 5 p.m.), submit a timeline which outlines the production and installation of ARTISTS' project along with a detailed budget which includes not only the cost of the project but the cost of shipping to the City and installation of the project as well. There is a $26,000 budget for this project. C. On October 11, 2018, ARTISTS will make a presentation to the Centennial Art Project Jury at City Flail's West Conference Room between 5-9 p.m. (A specific start time will be provided to ARTISTS by October 9, 2018.) 2. COMPENSATION. The CITY agrees to pay ARTISTS $1,000 as full and complete compensation for work performed and services rendered under this Agreement. City of El Segundo Centennial Art Project Proposals Page 1 Agreement No. 5575A 3. ARTIST'S RESPONSIBILITIES, WARRANTIES AND ACKNOWLEDGMENTS. A. Personnel and Equipment ARTISTS has, or will secure at ARTISTS' sole cost and expense, all personnel and equipment required to perform ARTISTS' services. ARTISTS, and all persons retained by ARTISTS shall possess the requisite licenses and permits necessary to perform the work, B. Prevailing Wages. ARTISTS acknowledges that if ARTISTS' 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, ARTISTS 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. C. ARTISTS 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 ARTISTS' proposal. D. ARTISTS acknowledges that, if ARTISTS' proposal is selected by CITY, CITY, in its sole discretion, may request ARTISTS make revisions to the proposal before the art work is constructed or installed. If ARTISTS does not agree to such revisions, ARTISTS further acknowledges and agrees that CITY may, in its sole discretion, rescind its selection of ARTISTS' proposal as the successful proposal and may award the contract for the final art work installation to another artist, E. ARTISTS further acknowledges that if ARTISTS' proposal is not selected, the CITY will have the right to terminate this Agreement by giving written notice to ARTISTS and then CITY will have no further liability in respect hereof. For a period of 30 days after the Agreement is terminated, ARTISTS may request the return of any or all objects or documents ARTISTS 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. F. ARTISTS warrants that ARTISTS is the sole and absolute owner of the proposed art work and the art work design, that all art work created or performed by ARTISTS under this Agreement is wholly original with ARTISTS and ARTISTS has not previously sold, assigned, licensed, granted, encumbered or utilized the proposed art work or art work design, or any element thereof, in any manner which may affect the CITY's ability to show the work, reproduce the art work or maintain the art work in the future. City of El Segundo Centennial Art Project Proposals Page 2 Agreement No. 5575A G. ARTISTS 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. By January 1, 2019 after its receipt of the ARTISTS' proposal, CITY will advise ARTISTS in writing whether ARTISTS was selected as the successful proposer. The CITY reserves the right to request ARTISTS make revision$to the proposal before the art work is constructed or installed. B. If ARTISTS' proposal is not selected as the successful proposal, and ARTISTS requests the return of any objects or documents ARTISTS 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 ARTISTS. ARTISTS 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 art work may be realistic or abstract, a single object or an arrangement of elements. It should, however, be uniquely reflective of El Segundo: its character, nature, history and potential future. It should engage the public and spur further development of the City. B. Commercial Content. The proposed art work must not include an advertisement or be commercial in nature. The proposed art work must not contain copy, lettering, symbols or references directly to the promotion of any product, business, brand, organization, service, cause or place. The proposed art work may contain limited commercial elements so long as they are not considered commercial speech with the purpose of promoting a commercial transaction. C. Obscene and Indecent Content. The proposed art work must not contain any indecent or obscene content. 7. INDEMNIFICATION, ARTISTS agrees to protect, defend, indemnify and hold harmless the City of El 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 ARTISTS 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. ARTISTS further agrees to protect, defend, indemnify and hold harmless City of El Segundo Centennial Art Project Proposals Page 3 Agreement No. 5575A 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, ARTISTS shall retain all 17 U.S.C. §106 copyrights in all original works of authorship produced under this Agreement. If ARTISTS is comprised of two or more individual persons, the individual persons shall be deemed joint authors of the proposal. B. Notwithstanding the foregoing, ARTISTS 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 ARTISTS represents and warrants that the proposed art work submitted pursuant to this Agreement is the sole work of the ARTISTS and does not infringe the intellectual property rights of any third parties. CITY is not responsible for any third-party infringement of ARTISTS' copyright or for protecting ARTISTS' intellectual property rights. D. Waiver of ARTISTS'Rights. With respect to the proposed art work produced under this Agreement, and in consideration of the procedures and remedies specified in this Agreement, ARTISTS hereby waives any and all claims, 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 1'13(4)), 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. 10ANSURANCE. A. Before commencing performance under this Agreement, and at all other times this Agreement is effective, ARTISTS will procure and maintain the following City of El Segundo Centennial Art Project Proposals Page 4 Agreement No. 5575A types of insurance with coverage limits complying, at a minimum, with the limits set forth below: Tvr)e of Insurance Limits (combined sinale) Commercial general liability: $1 Million Business automobile liability: $1 Million Workers compensation 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 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. 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, g). D. ARTISTS 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.Vll." Certificate(s) must reflect that the insurer will provide 30 days' notice of any cancellation of coverage. ARTISTS 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. E. Should ARTISTS, for any reason, fail to obtain and maintain the insurance required by this Agreement, CITY may obtain such coverage at ARTISTS' expense and deduct the cost of such insurance from payments due to ARTISTS under this Agreement or terminate. 11.INDEPENDENT CONTRACTOR. CITY and ARTISTS agree that ARTISTS will act as an independent contractor and will have control of all work and the manner in which it is performed. ARTISTS will be free to contract for similar service to be City of El Segundo Centennial Art Project Proposals Page 5 Agreement No. 5575A performed for other employers while under contract with CITY. ARTISTS 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 ARTISTS as to the details of doing the work or to exercise a measure of control over the work means that ARTISTS will follow the direction of the CITY as to end results of the work only, 12.NOTICES, 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 El Segundo 350 Main Street El Segundo, CA 90245 TO ARTIST: Shana and Vincent Alpino 14422 Pauma Vista Drive Valley Center, CA 92082 C. When addressed in accordance with this paragraph, notices will be deemed giverâ–º 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 ARTISTS are material considerations for this Agreement. Unless approved by the CITY in writing, ARTISTS may not transfer any interest in this Agreement or the performance of any of ARTISTS' obligations hereunder, and any attempt by ARTISTS 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 City of El Segundo Centennial Art Project Proposals Page 6 Agreement No. 5575A 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. IS.AUTHORITY/MODIFICATION. This Agreement may be subject to and conditioned upon approval and ratification by the Ef Segundo City Council.This 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 carne 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 ARTISTS 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_ CITYOF 124 SEGUNDO ARTISTS A Gregpent Shana and cent Alpino Cite nage %ge Vi City of El Segundo Centennial Art Project Proposals Page 7 Agreement No. 5575A ATTEST: Tax 10 Number-. 2C 4 Tracy Weaver City Clerk APPROVED AS TO FORM: DO Mark b. Hensley, City Attorney City of El Segundo Centennial Art Project Noposats Page 8