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CONTRACT 5696 Maintenance and Repair Agreement CLOSEDAgreement No. 5696 MURAL INSTALLATION AND MAINTENANCE AGREEMENT BETWEEN THE CITY OF EL SEGUNDO AND NANIBAH CHACON THIS MURAL INSTALLATION AND MAINTENANCE AGREEMENT ("Agreement") is made and entered into this 29th day of April, 2019, by and between the CITY OF EL SEGUNDO, a general law city and municipal corporation ("City") and NANIBAH CHACON, an individual ("Artist"). 1. City understands the importance of art in public places and the role that murals play in preserving our culture, conveying the history of our community, beautifying the city, and advancing the arts. 2. Murals are permitted under the City's sign ordinance, provided they are not for commercial purposes and otherwise comply with EI Segundo Municipal Code § 15-18-3, as described below. 3. The Friends of the EI Segundo Public Library ("The Friends") is a non- profit organization that supports the City's Public Library; The Friends have agreed to pay the Artist $7,500 to install a mural at the library; 4. The City and Artist desire to execute this agreement establishing the Parties' rights and responsibilities with respect to the installation, maintenance, and ownership of the mural. NOW, THERFORE, in consideration of the mutual covenants contained in this Agreement and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: 1. DEFINITIONS. A. "Commercial" means words or images used elsewhere in the marketplace for the purpose of promoting a particular business, product, service, cause, place or brand. B. "Commercial element" means art that by virtue of its location or proximity to a business may serve a minimal commercial purpose. If that art were in a different location, it would be considered pure art and not commercial in nature. C. "Good condition" means that the Mural is free of dirt, debris, and any other object or substance interfering with the public's view of the Mural. D. "Mural" means the work of art designed or produced by Artist and selected for installation on the Property and as approved by Library Director Melissa City of EI Segundo Mural Installation and Maintenance Page 1 Agreement No. 5696 McCollum, Arts and Culture Advisory Committee Chair Jeff Cason, and Arts and Culture Advisory Committee Member Kristen Dorsey by May 15, 2019. 2. ARTIST'S COVENANTS. A. Artist shall perform all services and furnish all supplies, materials, travel, and equipment as necessary for the design, execution, fabrication, transportation and installation of a Mural at the Property in accordance with the terms of this Agreement. Artist covenants to complete installation of the Mural on the Community Room interior wall of the Property within 60 days after this Agreement's execution. Artist shall complete the fabrication and installation of the Mural in substantial conformity with the approved design. B. City has the right to review the Mural at all reasonable times during the fabrication and installation. City may require the Artist to make revisions to the Mural. C. Artist covenants to assist City in making any necessary repairs to the Mural's artistic content, including, but not limited to, restoring a damaged portion of the Mural's content. 3. CITY'S COVENANTS. A. City covenants that it owns the property located at the EI Segundo Public Library — 111 West Mariposa Avenue, EI Segundo, CA, 90245 (the "Property"), is authorized to permit the Mural's installation upon the Community Room interior wall of the Property, and will permit Artist to do so following this Agreement's execution. B. City covenants to maintain and repair the Mural during the term of this Agreement so that the Mural remains in a state of good condition. 4. TERM, TERMINATION, AND EXTENSION. A. This Agreement shall have a term of 5 years from the date of execution, unless terminated pursuant to this Section. The parties may agree to extend the term of this Agreement by a written amendment signed by both parties. B. City may elect to terminate this Agreement without any liability to Artist if Artist: (a) fails to install the Mural as specified in this Agreement; or (b) fails to complete installation of the Mural on the date required by Section 3.A for any reason. In the event of such termination, City may elect to cover or remove those parts of the Mural that have been installed. 5. MURAL SPECIFICATIONS. City of EI Segundo Mural Installation and Maintenance Page 2 Agreement No. 5696 A. Artistic Freedom. The provisions of this Section shall not in any way limit or restrict Artist's right to include content in the Mural that is not commercial, indecent, or obscene. B. Commercial Content. The Mural shall not include an advertisement or be commercial in nature. Murals shall not contain copy, lettering, symbols or references directly to the promotion of any product, business, brand, organization, service, cause or place. Murals may contain limited commercial elements so long as they are not considered commercial speech with the purpose of promoting a commercial transaction. C. Sponsor and Artist Identification. Pursuant to EI Segundo Municipal Code § 15-18-3, the use of registered, copyrighted, or trademark names, insignia, or logos is permitted within the sponsor's portion of the artwork, but names, insignia, or logos larger than 6 square feet or one percent (1 %) of the area of the artwork, whichever is less, may not include registration, copyright, or trademark symbols. Such artwork is subject to review by the City's Director of Planning and Building Safety or his designee to determine if the extent of any commercial message in the Mural is a minor component of the artwork. When the use of names, insignia, or logos is larger than 6 square feet or one percent (1%), the entire artwork will be treated as a sign that is subject to permit requirements in ESMC Chapter 15-18. D. Obscene and Indecent Content. The Mural must not contain any indecent or obscene content. 6. INSTALLATION; MAINTENANCE AND REPAIRS. A. Artist shall begin installing the Mural on May 23, 2019, or as soon as reasonably practicable after this Agreement's execution. B. Artist shall be responsible for providing, at its cost, all materials necessary to install the Mural. C. Upon completion of the Mural and the acceptance of the Mural by the City, Artist shall provide the City the written instructions for appropriate maintenance and preservation of the Mural. City shall be responsible for maintaining the Mural in good condition at all times while this Agreement is in force. 7. ALTERATION OF THE MURAL OR OF THE SITE; REMOVAL. A. The City agrees that it will not intentionally damage, alter, modify or change the Mural without the prior written approval of the Artist. B. The City shall notify the Artist of any proposed alteration of the Site that would affect the intended character and appearance of the Mural and shall consult with the Artist in the planning and execution of any such alteration and City of EI Segundo Mural Installation and Maintenance Page 3 Agreement No. 5696 shall make a reasonable effort to maintain the integrity of the Mural, C. Nothing in this Section shall preclude any right of the City (1) to remove the Mural from public display or (2) to destroy the Mural. 8. WARRANTIES. A. Warranties of Title. The Artist represents and warrants that: (a) the Mural is solely the result of the artistic effort of the Artist; (b) except as otherwise disclosed in writing to the City, the Mural is unique and original and does not infringe upon any copyright; (c) that the Mural, or a duplicate thereof, has not been accepted for sale elsewhere; and (d) the Mural is free and clear of any liens from any source whatever. B. Warranties of Quality and Condition. The Artist represents and warrants, (a) the execution and fabrication of the Mural will be performed in a workmanlike manner; (b) the Mural, as fabricated and installed, will be free of defects in material and workmanship, including any defects consisting of "inherent vice" or qualities which cause or accelerate deterioration of the Mural; and (c) reasonable maintenance of the Mural will not require procedures substantially in excess of those described in the maintenance recommendations to be submitted by the Artist to the City hereunder. C. The warranties described in this Section shall survive for a period of one year after the final acceptance of the Mural. The City shall give notice to the Artist of any observed breach with reasonable promptness. The Artist shall, at the request of the City, and at no cost to the City, cure reasonably and promptly the breach of any such warranty which is curable by the Artist and which cure is consistent with professional conservation standards (including, for example, cure by means of repair or refabrication of the Mural). 9. INDEMNIFICATION. Artist hereby agrees to indemnify City for any costs the City incurs in connection with the Mural caused by the actions of the Artist, his or her officers, employees, or agents, or any person who was under their control insofar as permitted by law. Further, Artist hereby agrees to hold harmless, indemnify, and defend the City of EI Segundo, its 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 either party in connection with the Mural, regardless of whether the city is actively negligent or passively negligent, except for those claims, costs, damages, demands, liability, and notices, or any of these, caused solely by the negligence or willful misconduct of City; and to cooperate with the City to respond to specific risks, hazards, and dangers to public health and safety that are reasonably foreseeable consequences of the activity contemplated by this Agreement. City of EI Segundo Mural Installation and Maintenance Page 4 Agreement No. 5696 10. INTELLECTUAL PROPERTY. A. Ownership. Upon final acceptance of the Mural, City, its successors and assigns, shall own all rights in the Mural except as specified below. B. 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 Mural. C. City's Intellectual Property License. Artist hereby grants to City an unlimited and irrevocable license to do the following with respect to the Mural: 1. City may display the Mural on the Property, 2. City may make, display, and distribute, and authorize the making, display, and distribution of photographs and other reproductions of the Mural. City may use such reproductions for any City -related purpose, including advertising, educational and promotional materials, brochures, books, flyers, postcards, print, broadcast, film, electronic, and multimedia publicity. City shall ensure that such reproductions are made in a professional and tasteful manner, in their sole and reasonable judgment. City shall make reasonable efforts to ensure that such reproductions include the following credit line and copyright notice where practicable: "[Title of Artwork - TBD]" 2019 by Nanibah Chacon. Failure to include such credit line and notice in any reproductions shall not constitute a breach of this agreement. City may not license or sublicense its rights for any private or commercial purpose. This license granted hereunder does not include the right to sell photographs or reproductions of the Mural or to reproductions. D. Third Party Infringement. Artist represents and warrants that the Mural 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. Further, Artist agrees to indemnify City against any claims brought against City alleging that the Mural infringes the intellectual property rights of any third parties. E. Publicity. City shall have the right to use Artist's name, likeness, and biographical information, in connection with the display or reproduction and distribution of the Mural. Artist shall be reasonably available to attend any ceremonies related to the Mural. F. Trademark. If City's use of the Mural creates trademark, service mark or trade dress rights in connection with the Mural, City shall have an exclusive and irrevocable right in such trademark, service mark, or trade dress. City of EI Segundo Mural Installation and Maintenance Page 5 Agreement No. 5696 G. Waiver of Artist's Rights. With respect to the Mural produced under this Agreement, and in consideration of the procedures and remedies specified in this Agreement, Artist 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 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. Artist hereby represents and warrants that the Artist is authorized to sign this waiver. 11. 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. 12. FAMILIARITY WITH WORK. A. By executing this Agreement, Artist represents that Artist has i. Thoroughly investigated and considered the scope of services to be performed; Carefully considered how the services should be performed; and iii. Understands the facilities, difficulties, and restrictions attending performance of the services under this Agreement. B. If services involve work upon any site, Artist warrants that Artist has or will investigate the site and is or will be fully acquainted with the conditions there existing, before commencing the services hereunder. Should Artist discover any latent or unknown conditions that may materially affect the performance of the services, Artist will immediately inform City of such fact and will not proceed except at Artist's own risk until written instructions are received from City. 13. 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: City of EI Segundo Mural Installation and Maintenance Page 6 Commercial general liability: Business automobile liability: Workers compensation Agreement No. 5696 Limits (combined since $500,000 $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 Artist'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. 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. D. Automobile coverage will be written on ISO Business Auto Coverage Form CA 00 01 06 92, including symbol 1 (Any Auto), or if Artist does not own or lease autos, Hired/Non-Owned Automobile Liability (symbols 8, 9). E. 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. 14. INDEPENDENT CONTRACTOR; PREVAILING WAGES. A. 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 City of EI Segundo Mural Installation and Maintenance Page 7 Agreement No. 5696 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. B. The City alerts Artist to the provisions of Labor Code § 1771, which may require the payment of prevailing wages. 15. 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. Such noticing does not include day-to-day communications between City and Artist. Notice sent by mail will be addressed as follows: To CITY: City of EI Segundo 350 Main Street EI Segundo, CA 90245 TO ARTIST: Nanibah Chacon 607 Page Northeast Albuquerque, New Mexico 87102 B. 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. C. 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. 16. 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. 17. 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. 18. 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 EI Segundo Mural Installation and Maintenance Page 8 Agreement No. 5696 such portion enforceable and, as so modified, such portion and the balance of this Agreement will continue in full force and effect. 19. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of reference only and will not affect the interpretation of this Agreement. 20. 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. 21. AUTHORITY/MODIFICATION. This Agreement is not binding upon City until executed by the City Manager. 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 may execute any such amendment on behalf of City. 22. 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. 23. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of reference only and will not affect the interpretation of this Agreement. 24. 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. 25. ENTIRE AGREEMENT. This Agreement constitutes the sole agreement between City and Artist respecting Maintenance and Installation of the Mural. There are no other understandings, terms or other agreements expressed or implied, oral or written. [SIGNATURES ON FOLLOWING PAGE] City of EI Segundo Mural Installation and Maintenance Page 9 Agreement No. 5696 IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and year first hereinabove written. CITY L U ARTIST Greg rpen r, Nanibah Chacon City nag ATTE T: Tracy Weaver, City Clerk APPROVED AS TO FORM: �6Ma . Hensley, City Attorney City of EI Segundo Mural Installation and Maintenance Page 10