PROFESSIONAL SERVICES AGREEMENT
This agreement (“Agreement”) is made as of July 23, 2025 by and between the City of Commerce, a municipal corporation ("City") and Vivache, LLC a California limited liability company (“Consultant”). City and Consultant are sometimes hereinafter individually referred to as a “Party” and collectively referred to as the “Parties.”
R E C I T A L S
WHEREAS, City desires to commission the services of Consultant as an independent contractor to paint one or more murals (“Artwork”) under the California Department of Transportation’s (“Caltrans”) Transportation Art Program pursuant the Scope of Services attached hereto as Exhibit A; and WHEREAS, Consultant represents that it is fully qualified to perform such consulting services by virtue of its experience and the training, education and expertise of its principals and employees.
NOW, THEREFORE, in consideration of performance by the parties of the covenants and conditions herein contained, the parties hereto agree as follows:
1. Scope of Services. The nature and scope of the specific services to be performed by Consultant are as described in Exhibit A, as well as the maintenance services described under Section 14.
2. Term of Agreement. This Agreement shall commence on the date first set forth above (the “Commencement Date”) and shall remain and continue in effect until tasks described in Exhibit A are completed, but in no event later than June 30, 2025, unless sooner terminated pursuant to the provisions of this Agreement. The maintenance obligations under Exhibit B, Section 15, shall survive the termination or expiration of this Agreement for the time specified therein.
3. Compensation.
A. City agrees to compensate Consultant for services under this Agreement in compliance with the schedule set forth in Exhibit A. Consultant shall submit proper invoices in the form and manner specified by City, from time to time, pursuant to the schedule set forth in Exhibit A. Each invoice shall include a breakdown of all services performed together with the hours spent on each service, or portion of the work completed, as applicable, conforming to the period of time or portion of work completed for which such invoice is issued. Consultant shall maintain appropriate and necessary documentation supporting the invoices detailing the type of service provided. It shall be available for review by the City at all reasonable times upon request. Payment of invoices shall be made within forty-five (45) days following receipt thereof by City. Any undisputed amounts not timely paid shall bear interest thereon at the maximum legal rate until paid in full.
B. For each progress payments City shall pay Consultant a sum based upon ninety five percent (95%) of the contract price apportionment of the labor and materials incorporated into the work under the contract during the month covered by said statement. The remaining five percent (5%) thereof shall be retained as performance security to be paid to the Consultant within sixty (60) days after final acceptance of the work by the City Council, after Consultant shall have furnished City with a release of all undisputed contract amounts, if required by City. In the event there are any claims specifically excluded by Consultant from the operation of the release, the City may retain proceeds (per Public Contract Code 7107) of up to 150% of the amount in dispute. City’s failure to deduct or withhold shall not affect Contractor’s obligations hereunder.
C. Substitution of Securities.
Pursuant to Public Contracts Code Sec. 22300 Consultant shall be allowed to substitute securities for any moneys withheld by the City to ensure performance under a contract, unless, federal regulations or policies, or both, do not allow the substitution of securities. At the request and expense of the Contractor, securities equivalent to the amount withheld shall be deposited with the CITY, or with a state or federally chartered bank in this state as the escrow agent, who shall then pay those moneys to the Consultant. Upon satisfactory completion of the contract, the securities shall be returned to the contractor.
D. Total payment to Consultant pursuant to this Agreement shall not exceed ______$569,335.00 for the two locations (excluding Telegraph Road) or $943, 150.00 for all three locations at which is it contemplated that Artwork may be installed, which selection shall be at the City’s direction, pursuant to the options set forth in Exhibit A attached hereto.
E. If at the request of the City, Consultant is required to incur out of pocket expenses (including but not limited to, out-of-town travel and lodging) which are above and beyond the ordinary expenses associated with performance of this Agreement, Consultant shall be entitled to reimbursement of such expenses. Consultant shall only be reimbursed for those expenses which: (I) appear on Consultant’s monthly invoices; (II) are accompanied by a copy of the City’s written authorization for Consultant to incur such expenses; and (III) receipts documenting such expenses.
4. General Terms and Conditions. The General Terms and Conditions set forth in Exhibit B are incorporated as part of this Agreement. In the event of any inconsistency between the General Terms and Conditions and any other exhibit to this Agreement, the General Terms and Conditions shall control unless it is clear from the context that both parties intend the provisions of the other exhibit(s) to control.
5. Addresses.
City of Commerce
City of Commerce
2535 Commerce Way
Commerce, CA 90040
Attn: City Manager
Company
Vivache, LLC
Attn: Michael Che Romero
1925 W. 85th Street
Los Angeles, CA 90047
6. Exhibits. All exhibits referred to in this Agreement are listed here and are incorporated and made part of this Agreement by this reference.
Exhibit A – Scope of Services and Compensation Schedule Exhibit B – General Terms and Conditions
Exhibit C – Caltrans Copyright License and Waiver of Moral Rights in Artwork Exhibit D – Caltrans Transportation Art Maintenance Agreement Exhibit E – Labor and Materials Bond
SIGNATURES ON FOLLOWING PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates written below.
CITY
CITY OF COMMERCE
By: ______________________________ ______________________ Hugo A. Argumedo, Mayor Date
CONSULTANT
VIVACHE, LLC
By: _______________________________ ________________________ Michael Che Romero Date
ATTEST:
By: ______________________________ ________________________ Lena Shumway, City Clerk Date APPROVED AS TO FORM:
By: ______________________________ ________________________ Noel Tapia, City Attorney Date
EXHIBIT A
SCOPE OF WORK
OPTION 1 (All Three Locations: Triggs, Telegraph and Leonis) Scope
Costs
Estimated Timing*
Triggs
Priming and prepping
-Labor at prevailing wage
-Water
-Machinery
-Primer
-Miscellaneous supplies
$12,000
6 weeks
Materials
-Equipment supplies: paint, brushes, spray guns, miscellaneous -Anti-graffiti coating
-Boom lift
-Scissor lift
-Scaffolding
$15,000
Traffic Control to be performed by California Traffic Control (CTC) -Traffic control plan
-Engineer stamp
-Submittal and application fee
-Permit cost
-2 Man traffic control with truck and equipment
-Contingency
$81,752
Labor/Artists at prevailing wages
-Daily set up
-Daily breakdown
-On site storage
-4-5 artists depending on skill and experience
-Overhead costs
$300,000
Total
$408,752
Leonis – Pedestrian Walkway
Priming and prepping
-Labor at prevailing wage
-Water
-Machinery
-Primer
-Miscellaneous supplies
$10,000
3 weeks
Materials
-Equipment supplies: paint, brushes, spray guns, miscellaneous -Anti-graffiti coating
-Boom lift
-Scissor lift
-Scaffolding
$12,000
Traffic Control - City of Commerce to provide
N/A
Labor/Artists at prevailing wages
-Daily set up
-Daily breakdown
-On site storage
-4-5 artists depending on skill and experience
-Overhead costs
$122,000
Total
$144,000
Telegraph
Priming and prepping
-Labor at prevailing wage
-Water
-Machinery
-Primer
-Miscellaneous supplies
$12,000
6 weeks
Materials
-Equipment supplies: paint, brushes, spray guns, miscellaneous -Anti-graffiti coating
-Boom lift
-Scissor lift
-Scaffolding
$15,000
Traffic Control to be performed by California Traffic Control (CTC) -Traffic control plan
-Engineer stamp
-Submittal and application fee
-Permit cost
-2 Man traffic control with truck and equipment
-Contingency
$102,190
Labor/Artists at prevailing wages
-Daily set up
-Daily breakdown
-On site storage
-4-5 artists depending on skill and experience
-Overhead costs
$225,000
Total
$354,190
Total budget before bond
$906,942
Bond
Bond
$27,208
Total budget and timing for all three locations
$934,150
15 weeks (approximately 4 months)
*Timing is contingent upon Vivache LLC’s schedule and weather conditions OPTION 2 (Two Locations: Triggs and Leonis)
Scope
Costs
Estimated Timing*
Triggs
Priming and prepping
-Labor at prevailing wage
-Water
-Machinery
-Primer
-Miscellaneous supplies
$12,000
6 weeks
Materials
-Equipment supplies: paint, brushes, spray guns, miscellaneous -Anti-graffiti coating
-Boom lift
-Scissor lift
-Scaffolding
$15,000
Traffic Control to be performed by California Traffic Control (CTC) -Traffic control plan
-Engineer stamp
-Submittal and application fee
-Permit cost
-2 Man traffic control with truck and equipmen
-Contingency
$81,752
Labor/Artists at prevailing wages
-Daily set up
-Daily breakdown
-On site storage
-4-5 artists depending on skill and experience
-Overhead costs
$300,000
Total
$408,752
Leonis – Pedestrian Walkway
Priming and prepping
-Labor at prevailing wage
-Water
-Machinery
-Primer
-Miscellaneous supplies
$10,000
3 weeks
Materials
-Equipment supplies: paint, brushes, spray guns, miscellaneous -Anti-graffiti coating
-Boom lift
-Scissor lift
-Scaffolding
$12,000
Traffic Control - City of Commerce to provide
N/A
Labor/Artists at prevailing wages
-Daily set up
-Daily breakdown
-On site storage
-4-5 artists depending on skill and experience
-Overhead costs
$122,000
Total
$144,000
Total budget before bond
$552,752
Bond
Bond (3%)
$16,583
Total budget and timing for 2 locations
$569,335
9 weeks
*Timing is contingent upon Vivache LLC’s schedule and weather conditions
MURAL MAINTENANCE
Mural Maintenance Plan
All murals will be coated with anti-graffiti coating. The coating has a lifetime of 3 graffiti removals per application, such that after 3 removals, new coating would need to be reapplied. Removal of graffiti from murals will also require cleanup following graffiti removal/cleaning of murals. Note: graffiti removal/cleanup must be done promptly, so that graffiti does not cure on the mural, and become difficult or impossible to remove. City of Commerce will need to notify Vivache LLC to come and maintain.
For all mural maintenance, Vivache LLC will initially bill and receive $300/hour, subject to increases from time to time, not more often than once per calendar year, plus reimbursement of direct expenses (including supplies) incurred in each act of maintenance. All maintenance invoices shall be sent to the City within 30 days following performance of any mural maintenance, to be payable within 45 days following receipt by the City.
EXHIBIT B
GENERAL TERMS AND CONDITIONS
1. Status as Independent Contractor.
A. Consultant is, and shall at all times remain as to City, a wholly independent contractor. Consultant shall have no power to incur any debt, obligation, or liability on behalf of the City of Commerce or otherwise act on behalf of Commerce as an agent. Neither the City of Commerce nor any of its agents shall have control over the conduct of Consultant or any of Consultant’s employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of the City of Commerce.
B. Consultant agrees to pay all required taxes on amounts paid to Consultant under this Agreement, and to indemnify and hold City harmless from any and all taxes, assessments, penalties, and interests asserted against City by reason of the independent Consultant relationship created by this Agreement. In the event that City is audited by any Federal or State agency regarding the independent status of Consultant and the audit in any way fails to sustain the validity of a wholly independent Consultant relationship between City and Consultant, then Consultant agrees to reasonably cooperate with City, at Consultant’s own expense, to establish the independent contractor status created by this Agreement.
C. To the extent Consultant has employees, Consultant shall fully comply with the workers' compensation law regarding Consultant and Consultant’s employees. Consultant further agrees to indemnify and hold City harmless from any failure of Consultant to comply with applicable worker's compensation laws. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this Section 1.
D. Consultant represents to the City, and City relies on Consultant’s representations, that Consultant shall serve solely in the capacity of an independent contractor to the City. Neither the City nor any of its agents will have control over the conduct of Consultant or any of Consultant’s employees, except as otherwise set forth in the Agreement. Consultant may not, at any time or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of the City. The City has no duty, obligation, or responsibility to the Consultant’s agents or employees, including the Affordable Care Act coverage requirements. Consultant is solely responsible for any tax penalties associated with the failure to offer affordable coverage to its agents and employees under the Affordable Care Act with respect to Consultant’s agents and employees. Consultant warrants and represents that the City will not be responsible and will not be held liable for issues related to Consultant’s status as an independent contractor, including Consultant’s failure to comply with Consultant’s duties, obligations, and responsibilities under the Affordable Care Act. Consultant further agrees to defend, indemnify, and hold the City harmless for any and all taxes, claims, and penalties against the City related to Consultant’s obligations under the Affordable Care Act.
2. Standard of Performance
Consultant shall perform all work to the highest professional standards and in a manner reasonably satisfactory to the City Manager or his/her designee. No additional or different tasks or services shall be performed by Consultant other than those specified in Exhibit A, except to the extent such Exhibit A is modified by a written amendment executed by City and Consultant. All tasks and services performed under this Agreement must comply with all Caltrans regulations and requirements under the Transportation Art Program. Consultant acknowledges that it has reviewed all such Transportation Art Program guidelines and regulations and agrees to comply with all such requirements in the performance of this Agreement.
3. Indemnification.
A. Consultant is skilled in the professional calling necessary to perform the services and duties agreed to be performed under this Agreement, and City is relying upon the skill and knowledge of Consultant to perform said services and duties.
B. City and its respective elected and appointed boards, officials, officers, agents, employees and volunteers (individually and collectively, "Indemnities") shall have no liability to Consultant or any other person for, and Consultant shall indemnify, defend, protect and hold harmless Indemnities from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses of whatever nature, including reasonable attorneys' fees and disbursements (collectively "Claims"), which Indemnities may suffer or incur or to which Indemnities may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or other loss occurring as a result of or allegedly caused by Consultant’s performance of or failure to perform any services under this Agreement or by the negligent or willful acts or omissions of Consultant, its agents, officers, directors, subcontractor, sub consultant or employees, committed in performing any of the services under this Agreement. Notwithstanding the foregoing, Consultant’s liabilities under this subsection shall be limited by the extent of the negligence or willful acts or omissions of City or any Indemnities.
C. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth in this Section from each and every subcontractor, sub consultant or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. In the event Consultant fails to obtain such indemnity obligations from others as required in this Section, Consultant agrees to be fully responsible according to the terms of this Section. Failure of the City to monitor compliance with these requirements imposes no additional obligations on City and will in no way serve as a waiver of any rights hereunder. This obligation to indemnify and defend Indemnities as set forth herein shall survive the termination of this Agreement and is in addition to any rights which City may have under the law. This indemnity is effective without reference to the existence or applicability of any insurance coverage which may have been required under this Agreement or any additional insured endorsements which may extend to City.
4. Insurance.
A. Without limiting Consultant’s indemnification of Indemnities pursuant to Section 3 of this Agreement, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement the types and amounts of insurance as described below:
(I) Consultant shall maintain Commercial General Liability Insurance with coverage at least as broad as Insurance Services Office Commercial General Liability Form CG 00 01 in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted. (II) Consultant shall maintain Business Auto Coverage on ISO Business Auto Coverage Form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. (III) Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance with on a state approved policy form providing statutory benefits as required by law with employer’s liability limits no less than $1,000,000 per accident for all covered losses; B. City, its officers, officials, employees and volunteers shall be named as additional insureds on the policy(ies) as to commercial general liability and automotive liability.
C. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager.
D. All insurance policies shall provide that the insurance coverage shall not be non-renewed, canceled, reduced, or otherwise modified (except through the addition of additional insureds to the policy) by the insurance carrier without the insurance carrier giving City thirty (30) days' prior written notice thereof. Any such thirty (30) day notice shall be submitted to CITY via certified mail, return receipt requested, addressed to “Director of Human Resources & Risk Management,” City of Commerce, 2535 Commerce Way, Commerce, California, 90040. Consultant agrees that it will not cancel, reduce or otherwise modify said insurance coverage.
E. Consultant shall submit to City (I) insurance certificates indicating compliance with the minimum insurance requirements above, and (II) insurance policy endorsements indicating compliance with all other minimum insurance requirements above, not less than one (1) day prior to beginning of performance under this Agreement. Endorsements shall be executed on City’s appropriate standard forms entitled "Additional Insured Endorsement".
F. Consultant’s insurance shall be primary as respects the City, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees and volunteers shall be excess of Consultant’s insurance and shall not contribute with it.
G. Consultant agrees that if it does not keep the aforesaid insurance in full force and effect, and such insurance is available at a reasonable cost. City may take out the necessary insurance and pay the premium thereon, and the repayment thereof shall be deemed an obligation of Consultant’s and the cost of such insurance may be deducted, at the option of City, from payments due Consultant.
5. Release of Information/Confidentiality.
A. Consultant in the course of its duties may have access to confidential data of City, private individuals, or employees of the City. Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without written authorization by City. City shall grant such authorization if disclosure is required by law. All City data shall be returned to City upon the termination of this Agreement. Consultant, its officers, employees, agents, or subconsultants, shall not without written authorization from the City Manager, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the City. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena. Consultant’s covenant under this section shall survive the termination of this Agreement.
B. Consultant shall promptly notify City should Consultant, its officers, employees, agents, or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request, court order, or subpoena from any person or party regarding this Agreement and the work performed thereunder. City retains the right, but has no obligation, to represent Consultant and/or be present at any deposition, hearing, or similar proceeding. Consultant agrees to reasonably cooperate with City and to provide the opportunity to review any response to discovery requests provided by Consultant. However, City's right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
6. Ownership of Work Product.
A. Consultant shall maintain complete and accurate records with respect to sales, costs, expenses, receipts, and other such information required by the City that relate to the performance of services under this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to the representatives of the City or its designees at reasonable times, on reasonable prior notice, to such books and records; shall give the City the right to examine and audit said books and records; shall permit the City to make transcripts therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment.
B. Upon completion of, or in the event of termination or suspension of this Agreement, all original documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the City and may be used, reused, or otherwise disposed of by the City without the permission of the Consultant. With respect to computer files, Consultant shall make available to the City, at the Consultant's office and upon reasonable written request by the City, the necessary computer software and hardware for purposes of accessing, compiling, transferring, and printing computer files.
C. Consultant represents and warrants to the City that the Artwork produced pursuant to this Agreement is an original design that, to the best of Artist's knowledge, does not infringe on any third-party intellectual property rights. By executing this Agreement, Consultant acknowledges that it is not violating the terms of any other agreement to which it is a party. Consultant hereby agrees that title to the Artwork shall be owned by Caltrans and Caltrans shall have a license to make certain noncommercial uses of the Artwork. Consultant acknowledges that by signing and executing the Caltrans Copyright License and Waiver of Moral Rights in Artwork agreement, which is hereby incorporated by reference and made part of this Agreement as Exhibit C, Consultant has conveyed or will convey title in the Artwork to Caltrans, has waived or will waive any and all moral rights to the Artwork, and has granted or will grant Caltrans a nonexclusive, perpetual, irrevocable, royalty‐free, world‐wide, sublicensable license to the Artwork.
7. Conflict of Interest.
A. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the services to be performed by Consultant under this Agreement, or which would conflict in any manner with the performance of its services hereunder. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of having any interest which would conflict in any manner with the performance of its services pursuant to this Agreement.
B. Consultant covenants not to give or receive any compensation, monetary or otherwise, to or from the ultimate vendor(s) of services to City as a result of the performance of this Agreement, or the services that may be procured by the City as a result of the recommendations made by Consultant. Consultant’s covenants under this section shall survive the termination of this Agreement.
8. Termination. Notwithstanding any other provision, this Agreement may be duly terminated at any time by the City at its sole discretion with or without cause by serving upon the consultant at least ten (10) days prior written notice (“Notice of Termination”). Upon receipt of said notice, the Consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise. Unless expressly agreed upon in writing by the City, the City shall not be obligated to pay for any services rendered nor any costs or expenses paid or incurred after the date of termination. The effective date of termination shall be upon the date specified in the written Notice of Termination. Consultant agrees that in the event of such termination, Consultant must refund the City its prorated share, except for services satisfactorily rendered prior to the effective date of termination. Immediately upon receiving written Notice of Termination, Consultant shall discontinue performing services, preserve the product of the services and upon payment for services, turn over to City the product of the services in accordance with written instructions of City.
In the event this Agreement is terminated pursuant to this Section, the City shall pay to Consultant the actual value of the work performed up to the time of termination, provided that the work performed is of value to the City. Upon termination of the Agreement pursuant to this Section, the Consultant will submit an invoice to the City.
City acknowledges that Michael Che Romero is a key person involved in the rendering of the services by Consultant under this Agreement. Should Michael Che Romero become ill, disabled, injured, or otherwise incapacitated or unable to reasonably cause Consultant to complete performance of the services, at any time during the term of this Agreement, Consultant or one of its representatives will notify City promptly. In such event, if Consultant is unable to resume performance, for a period of thirty (30) aggregate days, either party shall have the right to terminate this Agreement immediately with written notice to the other.
9. Personnel. Consultant represents that it has, or will secure at its own expense, all personnel required to perform the services under this Agreement. All of the services required under this Agreement will be performed by Consultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such services. Consultant reserves the right to determine the assignment of its own employees to the performance of Consultant’s services under this Agreement, but City reserves the right, for good cause, to require Consultant to exclude any employee from performing services on City's premises.
10. Non-Discrimination and Equal Employment Opportunity.
A. Consultant shall not discriminate as to race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation, in the performance of its services and duties pursuant to this Agreement, and will comply with all rules and regulations of City relating thereto. Such nondiscrimination shall include but not be limited to the following: employment, upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.
B. Consultant will, in all solicitations or advertisements for employees placed by or on behalf of Consultant state either that it is an equal opportunity employer or that all qualified applicants will receive consideration for employment without regard to race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation.
C. Consultant will cause the foregoing provisions to be inserted in all subcontracts for any work covered by this Agreement except contracts or subcontracts for standard commercial supplies or raw materials.
11. Assignment. The parties hereto shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt by a party to assign this Agreement or any rights, duties, or obligations arising hereunder shall be void and of no effect.
12. Performance Evaluation. For any Agreement in effect for twelve months or longer, the City Manager may require a written annual administrative performance evaluation within ninety (90) days of the first anniversary of the effective date of this Agreement, and each year thereafter throughout the term of this Agreement. The work product required by this Agreement shall be utilized as the basis for review, and any comments or complaints received by City during the review period, either orally or in writing, shall be considered. City shall meet with Consultant prior to preparing the written report. If any noncompliance with the Agreement is found, City may direct Consultant to correct the inadequacies, or, in the alternative, may terminate this Agreement as provided herein.
13. Mural Signature. City agrees that Consultant will be allowed to allocate a space (which size and exact location to be designated by City and approved by both Parties in writing) on the Artwork to paint and display “Muralist: @VIVACHEDESIGNS” or a substantially similar signature, which may include, in Consultant’s discretion, a “QR” code linked to Consultant’s website, portfolio, and/or other similar information. City agrees such signature shall be permanent and shall not be removed by City for so long as the Artwork are installed, provided that Consultant alone shall be responsible for future touch-ups thereto. City understands and acknowledges the extreme importance of such signature(s) to Consultant as a means of identifying and crediting Consultant as the creator of the Artwork, and, accordingly, City agrees, following installation of the Artwork, to preserve all signature(s) and protect the signature(s) from being deleted, erased, altered, manipulated, covered, removed, or otherwise materially affected or changed from its original state, without the prior written consent of Consultant.
A. City further agrees that, in the event that it is discovered that any material alteration to the signature(s) has/have occurred, Consultant is entitled to re-apply the signature(s) to the Artwork during reasonable business hours, with written notice to City. City further agrees that Consultant shall be entitled to utilize reasonable methods to protect the signature upon installation of the Artwork, including, without limitation, use of protective screens, shields, or compounds affixed or painted over the signature. City expressly acknowledges and agrees that its breach of this requirement, without prejudice to any other rights or remedies available to Consultant under this Agreement, at law, or in equity, shall entitle Consultant to seek immediate injunctive and/or declaratory relief in a court of competent jurisdiction, without the posting of any undertaking.
B. It is expressly acknowledged by City that the application, protection and maintenance of such signature provided for in this Section, and the notoriety which Consultant will receive from the completion and installation of the Artwork is fundamental to and a portion of the consideration for Consultant’s assent to this Agreement, such that City’s promises contained in this Section constitute an inducement to Consultant to enter into this Agreement. The provisions of this Section shall survive this Agreement.
14. Publicity and Promotion. City shall use best efforts, where applicable, give credit for the Artwork to Consultant on and through any social media post, photo, video, or other publication of any sort or in any medium referencing or depicting the Artwork. City agrees to back-link to www.vivachedesigns.com and reference @VivacheDesigns on any and all internet-based or internet-distributed publications, including, without limitation, its own website, if any, and social media platforms (i.e., Business Websites, Blogs, Facebook, Instagram, Twitter, Snapchat, etc.) where City posts, references, or depicts the Artwork in any respect, all postings regarding the design and mural. Additionally, City hereby grants to Consultant the right to take or obtain photographs, videos, and other recordings of any type, of the Artwork, as installed in or at the project site, along with a perpetual, worldwide, royalty-free license to utilize, reproduce, publish, distribute, and disseminate any such photographs, videos, and recordings for promotional purposes, including, without limitation, showcasing Consultant’s abilities, capabilities, and portfolio of work. The provisions of this Section shall survive this Agreement. City agrees that Consultant shall be entitled to obtain or prepare, at its cost, press releases concerning the Artwork, and City agrees to reasonably cooperate with the preparation of such press releases, including, without limitation, responding to request for comment or statement by any press or publication contacting City concerning the Artwork.
15. Mural Maintenance. Pursuant to the Caltrans Transportation Art Program requirements, the City possesses certain duties to maintain the Artwork under the Transportation Art Maintenance Agreement (“TAMA”) attached hereto is a boiler plate and incorporated herein by reference as Exhibit “D”. In exchange for the compensation provided under this Agreement, Consultant agrees to perform all general maintenance, graffiti removal, restoration, and routine maintenance related tasks under Sections 3, 5, 6, 7, Exhibit D, at the rates and under the terms specified for mural maintenance in Exhibit A. This obligation shall survive the early termination or expiration of this Agreement prior to the expiration of Maintenance Period, but shall apply only to completed Artwork in the event that this Agreement is terminated for any reason prior to complete installation of all Artwork.
16. Right to Remove Deliverables. City hereby agrees that, in the event that City obtains actual knowledge of Caltrans’ intention to demolish or otherwise renovate or alter the Artwork in such a manner that the Artwork produced hereunder would be destroyed, defaced, damaged, or otherwise materially altered, City shall use best efforts to provide written notice to Consultant so that Consultant shall have the opportunity to request from Caltrans to remove and dispose of all or any portion of the Artwork. However, City shall have no contractual obligation under this Agreement to provide such notice, and failure to do so shall not be considered a default under this Agreement. City shall not be responsible for facilitating any such request with Caltrans and Consultant shall be the sole responsibility of the Consultant. City agrees to reasonably cooperate with Consultant, including, without limitation, granting Consultant and its agents and representatives access to the Artwork and reasonable use of the project facilities (such as loading docks, elevators, or freight and loading areas), to remove the Artwork to the extent provided by Caltrans consent. City does not warrant or guarantee that Caltrans will grant any such request.
17. Bonds. Consultant, before commencing work on the Artwork, shall furnish and file with City, a Labor and Materials Payment Bond in the sum of 100% of the Agreement price, conditioned upon the payment of all labor and materials furnished in connection with this Agreement in the form attached hereto as Exhibit “D”.
18. Compliance with Laws. Consultant shall keep itself informed of State, Federal and Local laws, ordinances, codes and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. Consultant shall at all times comply with such laws, ordinances, codes and regulations. The City, its officers and employees shall not be liable at law or in equity occasioned by failure of Consultant to comply with this Section.
19. Prevailing Wages.
A. Where applicable, Consultant shall pay prevailing Wage rates to laborers performing the work hereunder in accordance with the “General Wage Determination Made by the Director of Industrial Relations Pursuant To California Labor Code, Part 7, Chapter 1, Article 2, Sections 1770, 1773 and 1773.1", for Los Angeles County. Wage rates shall conform with those available at the City of Commerce Public Works Department and posted at the project site.
B. The following Labor Code sections are hereby referenced and made a part of this Agreement:
1. Section 1775 - Penalty for Failure to Comply with Prevailing Wage Rates.
2. Section 1777.4 - Apprenticeship Requirements.
3. Section 1777.5 - Apprenticeship Requirements.
4. Section 1813 - Penalty for Failure to Pay Overtime.
5. Sections 1810 and 1811 - Working Hour Restrictions.
6. Section 1775 - Payroll Records.
7. Section 1773.8 - Travel and Subsistence Pay.
20. Intentionally Omitted.
21. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of any one or more of the conditions of performance under this Agreement shall be effective only if made in writing and not be a continuing waiver, nor a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Consultant constitute or be construed as a waiver by City of any breach of covenant, or any default which may then exist on the part of Consultant, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City with regard to such breach or default.
22. Attorney's Fees. In the event that either party to this Agreement shall commence any legal or equitable action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including reasonable attorney's fees and costs, including costs of expert witnesses.
23. Notices. Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on (a) the day of delivery if delivered by hand during Consultant regular business hours or by facsimile before or during Consultant regular business hours; (b) on the third business day following deposit in the United States mail, postage prepaid; or (c) on the first business day following transmission by electronic mail, to the addresses heretofore set forth in the Agreement, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this section.
24. Governing Law. This Agreement shall be construed and interpreted both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of California. However, the Parties may agree to submit any dispute to non-binding arbitration.
25. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be the original, and all of which together shall constitute one and the same instrument. Electronic and electronically transmitted signatures shall have the same force and effect as physical signatures.
26. Severability. If any provision or any part of any provision of this Agreement is found to be invalid or unenforceable, the balance of this Agreement shall remain in full force and effect.
27. Entire Agreement. This Agreement, and any other documents incorporated herein by specific reference, represents the entire and integrated agreement between Consultant and City. This Agreement supersedes all prior oral or written negotiations, representations or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the Parties which expressly refers to this Agreement. Amendments on behalf of the City will only be valid if signed by the Mayor and attested by the City Clerk.
28. Authority. The person or persons executing this Agreement on behalf of Consultant warrants and represents that he/she has the authority to execute this Agreement on behalf of Consultant and has the authority to bind Consultant to the performance of its obligations hereunder.
29. Force Majeure. Any delay or failure of a party’s performance under this Agreement shall not constitute a breach hereunder and shall be excused where such delay or failure is caused by or due to any of the following conditions and to the extent such conditions cannot be reasonably mitigated: acts of God, war, terrorism, civil unrest, catastrophe, extreme weather, pandemic/public health emergency, the order of any authority having jurisdiction over the location where the work is performed, or any other condition beyond such party’s control. In the event that any delay or failure caused by such conditions is excused hereunder, the party excused from such performance shall nevertheless remain obligated to resume or complete performance promptly following the end of the existence of such condition, provided, however, that the parties agree to make equitable adjustments to any timelines or compensation schemes reasonably affected by such condition, as applicable.
EXHIBIT C
CALTRANS COPYRIGHT LICENSE AND
WAIVER OF MORAL RIGHTS IN ARTWORK
EXHIBIT D
CALTRANS TRANSPORTATION ART
MAINTENANCE AGREEMENT
EXHIBIT E
LABOR AND MATERIALS PAYMENT BOND
(Use of City Bond Form is Required)
LABOR AND MATERIAL PAYMENT BOND
PUBLIC WORK (CALIFORNIA)
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, ________________________________________, as Principal, has entered into a contract dated ___________________, _____, (the "Contract") with the City of _____________________________ (Obligee) referred to and made a part hereof to perform the following work of public improvement, to wit:
____________________________________________________________________________________________________________________________________________________________________________________________________________________________________and all appurtenant work in accordance with the plans and specifications for Project No._______, which requires Principal to file this bond to secure claims made under Civil Code Section 3082 et seq.
NOW THEREFORE, we, ____________________________________, as Principal, and ___________________________________________, a corporation organized under the laws of ______________________ and duly authorized to transact business in the State of California, as Surety, are held firmly bound unto the City of _____________________________, as Obligee, and all subcontractors, laborers, materialpersons and other persons employed in the performance of the referenced agreement, in the sum of _________________________________________________ Dollars ($_______________________), lawful money of the United States of America, which is 100% of the amount of the Contract, for the payment whereof well and truly to be made the Principal and Surety bind themselves, their heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents.
The address at which the Surety may be served with notices, papers and other documents is:
__________________________________________________________________________________________________________________________________________ _____________________________________________________________________ The address at which the Principal may be served with notices, papers and other documents is:
_______________________________________________________________________________________________________________________________________________________________________________________________________________ If the above bounden Principal, his or its heirs, executors, administrators, successors, assigns, or any of his or its subcontractors, fails to pay for any materials, provisions, provender, or other supplies, or teams, implements or machinery, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor to persons named in Section 9100 of the Civil Code, or for amounts due under the Unemployment Insurance Code with respect to such work or labor performed under the Contract, or for any amounts required to be deducted, withheld and paid over to the Employment Development Department from the wages of employees of the contractor and subcontractors pursuant to Section 13020 of the Unemployment Insurance Code, then the Surety on this bond will pay the same, in an amount not exceeding the sum specified in this bond, and also, in case suit is brought upon this bond, a reasonable attorney's fee, which shall be awarded by the court to the prevailing party in said suit, said attorney's fee to be taxed as costs in said suit and to be included in the judgment herein rendered.
As part of the obligation secured hereby, the Surety shall not be exonerated or released from the obligation of the bond by any change, alteration, or modification in or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement or pertaining or relating to the furnishing of labor, materials, or equipment therefor, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme of work of improvement, nor by any rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement, or under the bond, nor, where the bond is given for the benefit of claimants, by any fraud practiced by any person other than the claimant seeking to recover on the bond.
This bond shall inure to the benefit of any and all persons, companies and corporations named in Civil Code Section 9100 so as to give them a right of action in a suit on this bond.
This bond is executed for the purpose of complying with the laws of the State of California designated as Title 3, Chapter 5, Payment Bond, commencing with Section 9550 of the Civil Code of the State of California and all amendments thereto, and shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code of the State of California.
This document is signed by the respective parties on the dates next to their names.
Principal
By: _________________________________
Title: ________________________________
Surety
By: _________________________________
Title: ________________________________
Date: ________________________________
Date: ________________________________
I declare under penalty of perjury under the laws of the State of California that the contents of the above Labor and Materials Payment Bond are true and correct, and that I have been duly authorized to sign this Labor and Materials Payment Bond on behalf of Surety. This Declaration is signed on ______ , in the City of _____, State of California. --OR--
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document State of California )
)
County of ___________________________ )
On ______________ before me, ____________________________________(here insert name and title of the officer), personally appeared ___________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature __________________________________ (Seal)
-- AND –
(Proof of signature authorization or power of attorney must be attached) APPROVED AS TO FORM:
________________________
City Attorney
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