AGREEMENT FOR ARTIST SERVICES
This AGREEMENT is entered into and effective as of December 6, 2022, by and between the City Placentia (hereafter "CITY") and Alejandro Poli, Jr., (hereinafter referred to as "ARTIST"), to provide CITY with specialized ARTIST services by painting new murals known as "The Good People Under our Sun and Moon" on property owned by the State of California as part of a State highway beautification project sponsored by the California Department of Transportation (Caltrans) and Clean California Program.
WHEREAS, ARTIST desires to provide, and CITY desires to retain ARTIST to paint new murals; and
WHEREAS, ARTIST is a recognized professional with extensive experience and training in ARTIST's specialized field. In rendering these services ARTIST shall at a minimum exercise the ordinary care and skill expected from the average practitioner in ARTIST's profession acting under similar circumstances; and WHEREAS, such services will be of a professional and technical nature; and WHEREAS, the City Council has authorized Damien R. Arrula, City Administrator, to enter into a contract for these services.
NOW, THEREFORE, CITY and ARTIST agree as follows:
1.0 APPLICABLE DOCUMENTS
Attachment A, as set forth below is attached to and form a part of this Agreement.
Attachment A: Scope of Work, Schedule, Costs, Fees, and Artist Proposal
Attachment B: Caltrans Assignment and Transfer of Copyright and Waiver of Moral Rights in Artwork Agreement
This Agreement and the Attachment attached hereto constitutes the complete and exclusive statement of understanding between the parties which supersedes all previous agreements, written or oral, and all other communications between the parties relating to the subject matter of this Agreement.
In the event of any conflict or inconsistency between this Agreement and the attachments, or between the attachments, it shall be resolved by giving precedence first to this Agreement and then to the attachments in the following order: Attachment A, Attachment B.
2.1 TERM OF AGREEMENT
1 2.2 The term of this Agreement shall commence one day following execution of this Agreement by CITY and shall expire within twenty-four (24) months subject to CITY's right to terminate earlier as provided herein.
2.3 This Agreement may be extended at the sole discretion of CITY, on a month-to-month basis for an additional one (1) year period by amending the Agreement in writing to reflect such extension.
3.0 INTERPRETATION
This Agreement shall be interpreted in accordance with the laws of the State of California. The headings herein contained are for convenience and reference only and are not intended to define the scope of any provision thereof.
4.0 DEFINITIONS
The following words as used herein shall be construed to have the following meaning, unless otherwise apparent from the context in which they are used:
Artist: means the artist, sole proprietor, partnership, or corporation which has entered into a contract with CITY to perform or execute the work covered by these specifications, including Artist's employees, agents, assigns, contractors, subcontractors, and anyone else involved in any manner in the exercise of the rights therein given to the Artist.
Artwork: means the work as ultimately conceived, designed, painted, fabricated, and installed by the Artist after consultation with and approval by the Project Coordination Committee and applicable jurisdictional agencies.
Premises: means name and location of project.
Reproduction: means a two-dimensional or three-dimensional representation of the Artwork such as a photograph or scale model, recognizable as representing the Artwork.
5 MAXIMUM AMOUNT AND ARTIST PAYMENT
The not -to -exceed amount of this Agreement shall be One Hundred Thousand Dollars ($100,000) including all materials, labor and out of pocket expenses for the term of this Agreement as set forth in Section 2.0, above unless otherwise extended by written notice and agreed to by both parties.
5.1 Payment to ARTIST shall be made in arrears at the rates specified in Attachment A to this Agreement, "Scope of Work, Schedule, Costs, 2 Fees and Artist Proposal," provided that ARTIST is not in default under any provision of this Agreement and has submitted a complete and accurate statement of payment due with documentation and deliverables attached supporting the statement of payment due.
ARTIST's fees shall include all applicable taxes, and any additional taxes that are not included remain the responsibility of ARTIST.
5.2 ARTIST shall submit to the CITY all invoices, with documentation supporting the invoiced amounts, and the required deliverables (see Section 6.0, below, Statement of Work/Deliverables).
5.3 Upon approval of the required deliverables, the CITY shall review the invoice and adjust for any liquidated damages or other offset authorized by this Agreement and authorize payment of an accurate invoice as soon as possible after receipt of ARTIST's billing. CITY will make a reasonable effort to effect payment within forty-five (45) days following receipt of an invoice which is accurate as to form and content.
6.0 STATEMENT OF WORK/DELIVERABLES
6.1 DESCRIPTION OF THE ARTWORK
Artist will paint two murals called "The Good People Under Our Sun and Moon" on the concrete bridge slopes below the State Highway 57 freeway bridge deck at the Crowther Avenue intersection as noted in the City selected mural concepts attached to this agreement. The approved mural concepts are included in Attachment A of this agreement.
Material and conceptual changes may be made to design of the Artwork as proposed herein by the ARTIST prior to the CITY'S Acceptance of the Artwork (such as changes in the Artwork's material, color, size, relative scale and placement as compared to the preliminary design therefore that was most recently accepted or approved by the CITY) but only after the ARTIST has given written notice of such desired changes to the CITY and has received written approval of each such change.
Upon reasonable prior notice to the ARTIST, the CITY, and/or the CITY's agents shall have a right to make reasonable inspections and reviews of the ARTIST's progress with respect to the Artwork.
7.0 FURTHER TERMS AND CONDITIONS
7.1 APPROVAL AND OWNERSHIP OF ARTWORK
All tasks, "work products" (deliverables), services or other work performed by ARTIST are subject to the written approval of the CITY or designee.
Approval of deliverable(s) will not be unreasonably withheld by CITY.
Rejection of deliverable(s) shall be on clearly stated grounds with 3 reference to objective criteria based upon deviations from original designs as approved. Upon issuance by the CITY of an Acceptance Notice, as provided in Section 7.18 herein and subject to Section 7.20, all right, title and ownership of the Artwork shall vest in the State of California pursuant to a separate agreement between the State and ARTIST. The City of Placentia shall maintain the artwork under a separate agreement with the State of California.
7.2 AUTHORIZATION WARRANTY
ARTIST represents and warrants that the signatory to this Agreement is fully authorized to obligate ARTIST hereunder and that all acts necessary to effectuate the valid execution of this Agreement by any fictitious legal entity which constitutes ARTIST have been accomplished.
7.3 CHANGES AND AMENDMENTS OF TERMS
CITY reserves the right to change, through negotiation, any portion of the work required under this Agreement, or amend such other terms and conditions which may become necessary. Any such revisions shall be accomplished in the following manner:
7.3.1 For any change which does not materially affect the scope of work, or any other term or condition included under this Agreement, a Change Notice shall be prepared and signed by the CITY and ARTIST.
7.3.2 For any revision which materially affects the scope of work, price, or any term and condition included in the Agreement, a
negotiated amendment to the Agreement shall be executed by ARTIST and CITY's City Administrator or his designee.
7.3.3 For any change affecting ARTIST's project personnel, ARTIST shall submit written notification and request to effect the change to the CITY. The CITY may accept or reject ARTIST's written notification and request.
7.4 ARTIST PERSONNEL
ARTIST shall provide qualified personnel to perform work and provide "work products" (deliverables) as indicated in the Agreement. ARTIST will ensure that its staff possesses the required professional licenses and certificates, if any, required by the State of California.
7.5 CITY'S QUALITY ASSURANCE PLAN
CITY or its agent will evaluate ARTIST's performance under this Agreement on not less than an annual basis. Such evaluation will include 4 assessing ARTIST's compliance with all Agreement terms and performance standards. ARTIST deficiencies which CITY determines are severe or continuing and that may place performance of the Agreement in jeopardy, if not corrected, will be reported to the City Council. The report will include improvements/corrective action measures taken by CITY and ARTIST. If improvement does not occur consistent with the corrective action measures, CITY may terminate this Agreement or impose other penalties as specified in this Agreement.
7.6 CITY'S RIGHT TO RENEGOTIATE AGREEMENT
CITY retains the right to renegotiate the terms, conditions, and fees during the period of the Agreement if such renegotiation is necessitated by budget shortfalls and reductions. ARTIST is not obligated to accept such renegotiation terms and, in the event ARTIST and CITY cannot agree to new terms, this Agreement may be terminated for the convenience of the CITY pursuant to Section 7.24 herein.
7.7 DELEGATION AND ASSIGNMENT
ARTIST shall not delegate its duties nor assign its rights hereunder, either in whole or in part, without the prior written consent of CITY.
7.7.1 Any delegation of duties shall be in the form of a subcontract.
ARTIST'S request to CITY for approval to enter into a
subcontract shall include:
7.7.1.1 A description of the services to be provided by a proposed subcontractor.
7.7.1.2 Identification of the proposed subcontractor and an explanation of why and how the proposed subcontractor was selected.
7.7.1.3 The proposed subcontract amount, together with ARTIST's cost or price analysis thereof.
7.7.1.4 A copy of the proposed subcontract. Any later modification or amendment of such subcontract shall be approved in writing by CITY before such modification or amendment is effective.
7.7.1.5 Subcontracts shall be made in the name of ARTIST and shall not bind nor purport to bind CITY. The making of subcontracts hereunder shall not relieve ARTIST of any requirement under this Agreement, including, but not limited to, the duty to properly supervise and coordinate the work of the subcontractor.
Approval of the provisions of any subcontract by CITY shall not be construed to constitute a determination of the allowableness of any cost under this Agreement. In no event shall approval of 5 any subcontract by CITY be construed as affecting any increase in the Maximum Amount of this Agreement set forth herein.
7.8 DISCLOSURE OF INFORMATION
ARTIST shall not disclose any details in connection with this Agreement to any party, except as may be otherwise provided herein or required by law.
However, in recognizing ARTIST's need to identify its services and related clients to sustain itself, CITY shall not prohibit ARTIST from publicizing its role under this Agreement within the following conditions:
7.8.1 ARTIST shall develop all publicity material in a
professional manner.
7.8.2 During the course of performance of this Agreement, ARTIST, its employees, agents, and subcontractors shall not publish or disseminate commercial advertisements, press releases,
opinions or feature articles, using the name of CITY without CITY's prior consent.
7.8.3 ARTIST shall not possess any interest, title, or right to any CITY case data or records. ARTIST is prohibited from
disclosing any identified or unidentified raw CITY data to any other party, or from combining any identified or unidentified raw CITY data with that of any other ARTIST client or other party into any database or report format for any purpose whatsoever without the expressed, written authorization of CITY.
7.9 INDEMNIFICATION
7.9.1 The Contractor shall indemnify, defend and hold harmless the CITY, elected and appointed officers, employees, agents and volunteers ("CITY lndemnitees") from and against any and all liability, including but not limited to demands, claims, actions, fees, costs, and expenses (including attorney and expert witness fees), arising from and/or relating to this Contract, except for such loss or damage arising from the sole negligence or willful misconduct of the CITY lndemnitees.
7.10 INDEPENDENT CONTRACTOR STATUS
7.10.1 The ARTIST shall perform all services hereunder as an independent contractor and is not and shall not be considered as an employee of the CITY. The Agreement is by and between the ARTIST and the CITY and is not intended, and shall not be construed, to create the relationship of employee, agent, partnership, joint venture, or association, between the CITY and 6 the ARTIST.
7.10.2 The ARTIST understands and agrees that all persons furnishing services to the ARTIST pursuant to this Agreement are, for purposes of workers' compensation liability, employees solely of the ARTIST and not the CITY. The ARTIST shall bear the sole responsibility and liability for furnishing workers' compensation benefits to any person for injuries arising from or connected with services performed by or on behalf of the ARTIST pursuant to this Agreement.
7.10.3 ARTIST represents and warrants to CITY, and CITY relies on such representation and warranty, that ARTIST has the
necessary skills, competency and expertise to fully and completely perform the specialized services called for under this Agreement. CITY and ARTIST understand and agree that
ARTIST is responsible for the means and methods of performing these special services and accomplishing the results,
deliverables, objectives and/or purposes specified and/or requested by CITY pursuant to this Agreement.
7.11 INSURANCE COVERAGE REQUIREMENTS
Without limiting the ARTIST's indemnification of the CITY, the ARTIST shall procure and maintain throughout the Term of the Agreement the following programs of insurance as specified, except as otherwise noted.
Such insurance shall be provided by insurers acceptable to CITY and shall be primary to and not contributing with any other insurance or self- insurance programs maintained by the CITY, and such coverage shall be provided and maintained at the ARTIST'S expense.
ARTIST shall provide a certificate of insurance or other evidence of coverage acceptable to CITY, which shall evidence that the specified types and limits of insurance are in effect. Failure by ARTIST to provide evidence of, or to maintain the required insurance, shall constitute a material breach of the contract upon which CITY may immediately terminate or suspend this Agreement.
7.11.1 General Liability Insurance
Such coverage shall be obtained prior to the commencement of the painting of the Artwork and maintained until such time as ARTIST obtains CITY'S written acceptance of the Artwork. Such insurance also shall name CITY as an additional insured, and provide limits of not less than the following:
General Aggregate
Products/Completed Operations Aggregate
Personal and Advertising Injury
7 $ 1 million
$1 million
$1 million
Each Occurrence $1 million
Such coverage shall be written on an ISO Commercial General Liability form (CG 00 01) or its equivalent. Alternatively and at its sole option, the CITY also may accept liability coverage written on a Business Owners, a "Home Based" or similar "Micro" Business Policy form, or a Homeowners Insurance Policy form, providing such policy covers liability arising out of or in connection with the ARTIST'S business operations, including the ARTIST'S operations at locations other than the ARTIST'S residence premises.
Insurance Coverage Provided by Contractor: ARTIST may
satisfy all or any portion of the above general liability insurance requirements by providing evidence acceptable to CITY that the ARTIST is insured under a policy(ies) maintained by another party, such as a prime or general contractor.
7.11.2 Automobile Liability Insurance
Bodily injury liability each person
Bodily injury liability each accident
Property damage liability
$1 million
$1 million
$1 million
Such insurance shall include coverage for any vehicle the ARTIST will use to perform the services listed herein; such auto liability insurance must cover liability arising out of the ARTIST's business use of the vehicle.
7.11.3 Workers Compensation and Employers' Liability Insurance ARTIST shall be responsible for providing workers compensation benefits, as required by the Labor Code of the State of California or by any other state, and for which ARTIST is responsible. The above insurance also shall include Employers' Liability coverage with limits of not less than the following:
Each accident
Disease - policy limit
Disease - each employee
$1 million
$1 million
$1 million
7.11.4 Additional Insured Endorsements
The commercial general liability insurance policy and business automobile liability policy shall contain or be endorsed to contain the following provisions as worded below:
(a) Additional insureds: "The City of Placentia and its elected and 8 appointed boards, officers, officials, agents, employees, and volunteers are additional insureds with respect to: liability arising out of activities performed by or on behalf of the Artist pursuant to its contract with the City; products and completed operations of the Artist; premises owned, occupied or used by the Artist automobiles owned, leased, hired, or borrowed by the Artist."
(b) Notice: " ARTIST shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; (3) or the deductible or self- insured retention is increased. In the event of any cancellation or reduction in coverage or limits of any insurance, ARTIST shall forthwith obtain and submit proof of substitute insurance. Should ARTIST fail to immediately procure other insurance, as specified, to substitute for any canceled policy, the City may procure such insurance at ARTIST's sole cost and expense."
(c) Other insurance: "The ARTIST's insurance coverage shall be primary insurance as respects the City of Placentia, its officers, officials, agents, employees, and volunteers. Any other insurance maintained by the City of Placentia shall be excess and not contributing with the insurance provided by this policy." (d) Any failure to comply with the reporting provisions of the policies shall not affect coverage provided to the City of Placentia, its officers, officials, agents, employees, and volunteers. (e) The ARTIST s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
7.11.5 Proaerty Insurance
Section not used.
7.11.6 Waiver of Subroaation
The ARTIST agrees to release the CITY and waive its rights of recovery against the CITY under the insurance policies specified in this Agreement.
7.11.7 Notification of Incidents. Claims or Suitl
ARTIST shall report to CITY:
7.11.7.1 Any accident or incident relating to services
performed under this Agreement which involves injury or property damage which may result in the filing of a claim or lawsuit against ARTIST and/or CITY. Such report shall be made in writing within 24 hours of occurrence.
7.11.7.2 Any third -party claim or lawsuit filed against ARTIST arising from or related to services performed by ARTIST under this Agreement.
7.11.7.3 Any injury to an ARTIST employee which occurs on CITY property. This report shall be submitted on a CITY "Non- employee Injury Report" to the CITY Contract Manager.
7.11.7.4 Any loss, disappearance, destruction, misuse, or theft of any kind whatsoever of CITY property, monies or securities entrusted to ARTIST under the terms of this
Agreement.
7.11.8 Insurance Coveraae Reauirements for Subcontractors ARTIST shall ensure any and all subcontractors performing services under this Agreement meet the insurance requirements of this Agreement by either:
7.12.8.1 ARTIST providing evidence of ARTIST's insurance covering the activities of subcontractors, or
7.12.8.2 ARTIST providing evidence submitted by
subcontractors evidencing that subcontractors
maintain the required insurance coverage. CITY
retains the right to obtain copies of evidence of
subcontractor insurance coverage at any time.
7.13 RISK OF LOSS
Except as otherwise provided herein, all risk of destruction or damage to the Artwork or any part thereof from any cause whatsoever shall be borne by the ARTIST until written Acceptance of the Artwork by the CITY. The ARTIST shall, at ARTIST's sole expense, rebuild, repair, and/or restore any portion of the Artwork which has been damaged. ARTIST shall not be responsible for repairing any damage caused by jobsite contractors or subcontractors not under the ARTIST's contractual control or supervision.
7.14 LICENSES, PERMITS, REGISTRATIONS AND CERTIFICATES
ARTIST shall obtain and maintain in effect during the term of this Agreement, all licenses, permits, registrations and certificates, if any, required by law, which are applicable to the performance of this Agreement, and shall further ensure that all of its officers, employees and agents who perform services hereunder obtain and maintain in effect during the term of this Agreement, all licenses, permits, registrations and certificates required by law which are applicable to their performance of services hereunder.
10 7.15 LIQUIDATED DAMAGES
If ARTIST fails to perform agreed services of this Agreement or does not complete such services within the agreed specified time, the CITY may, in its sole discretion, determine that the proper remedy is to reduce ARTIST's compensation by up to ten percent (10%) of the total contract amount. The parties agree that this amount is reasonable at the time of the making of this Agreement as a sum for liquidated damages. The parties have agreed on this amount for liquidated damages because, due to the nature of the services, it would be impracticable or extremely difficult to fix the actual damages. Liquidated damages are not an exclusive remedy under this Agreement, and the CITY retains its other remedies in law and equity.
7.16 MEETINGS
All meetings between CITY and ARTIST will be held at mutually agreed upon locations in the CITY.
7.17 NOTICE OF DELAYS
Except as otherwise expressly provided herein, when either party has knowledge that any actual or potential situation is delaying or threatens to delay the timely performance of this Agreement, that party shall, within five (5) working days, give written notice thereof, including all relevant information with respect thereto to the other party.
7.18 NOTICES
7.18.1 Notices required or permitted to be given under the terms of this Agreement or by any law now or hereafter in effect may, at the option of the party giving notice, be given by personal delivery or by enclosing the same in a sealed envelope addressed to the party for whom intended and by depositing such envelope with postage prepaid in the United States Post Office or substation thereof, or any public mailbox.
The notices and envelopes containing same to CITY shall be addressed to:
City of Placentia
ATTN: Luis Estevez
401 E. Chapman Avenue
Placentia, CA 92870
The notices and envelopes containing same to ARTIST shall be addressed to:
11 Alejandro Poli, Jr.
4335 E. Lowell Street
Suite C
Ontario, CA 91761
ARTIST is responsible to notify CITY of changes of address.
Adequate notification shall consist of delivery by mail to the last address provided by ARTIST to CITY as required herein.
7.18.2 In the event of suspension or termination of this Agreement, notices may also be given upon personal delivery to any person whose actual knowledge of such suspension or termination would be sufficient notice to ARTIST.
7.18.3 CITY shall provide notices required under sections 7.20, 7.21, and 7.22 by registered mail, and/or by email notice, and/or by personal service.
7.19 CITY ACCEPTANCE OF THE ARTWORK
As a condition precedent to Acceptance, the ARTIST shall notify CITY's Project Manager in writing that the Artwork has been completely installed at the Premises ("Completion Notice"). The Completion Notice shall include final written instructions concerning maintenance requirements for the Artwork. Within thirty (30) days of CITY's receipt of the Completion Notice, CITY shall notify ARTIST in writing that the Artwork is Accepted as completed and installed as required by this Agreement ("Acceptance Notice"), or if the Artwork does not meet this Agreement's requirements, CITY shall notify ARTIST of the defects ("Defect Notice"). Such Defect Notice shall include clearly stated grounds with reference to objective criteria identifying deviations from original designs as approved.
7.20 ARTIST'S REPRESENTATIONS AND WARRANTIES
7.20.1 The ARTIST represents and warrants to the CITY that the fabrication and installation of the Artwork will be performed in a workmanlike manner and that the Artwork will be free of defects in workmanship and materials, including inherent vice and portions deemed dangerous to the public, and that the ARTIST will, at the ARTIST'S own expense, remedy any defects due to faulty workmanship or materials, or to inherent vice, which appear within a period of one year from the date the Artwork is Accepted by the CITY. "Inherent vice" refers to a quality within the material or materials which comprise the Artwork which, either alone or in combination, results in the tendency of the Artwork to destroy itself. If the Artwork should deteriorate 12 because of faulty workmanship or material or an inherent vice within one (1) year from the date the work is Accepted by the CITY, the ARTIST will promptly repair or replace the Artwork without any charge to the CITY. However, the CITY may, in its sole discretion and only to the extent it deems advisable, assist the ARTIST for out-of-pocket expenses related to the repair or replacement of the Artwork, including materials, contracted labor, travel costs and subcontractor charges; but in no event shall it pay any charge for ARTIST'S labor. Any and all repair or replacement completed by the ARTIST shall be consistent with professional conservation standards as determined solely by the CITY.
7.20.2 Warranties provided to the ARTIST by any subcontractor shall be for not less than one (1) year from the date the Artwork is Accepted by the CITY, and ARTIST shall require that all of its subcontractors shall allow the assignment of these warranties to the CITY.
7.20.3 The ARTIST represents and warrants to the CITY that the Artwork will not require maintenance substantially in excess of that described in the maintenance recommendations to be provided by the ARTIST pursuant to this Agreement.
7.20.4 The ARTIST represents to the CITY that the Artwork is solely the result of the artistic efforts of the ARTIST, and that it will be installed free and clear of any liens, claims or other
encumbrances of any type from any source whatsoever.
7.20.5 The personal skill, judgment and creativity of the ARTIST is an essential element of this Agreement. Therefore, although the parties recognize that the ARTIST may employ qualified
personnel to work under the ARTIST'S supervision, the ARTIST shall not assign, transfer or subcontract the creative and artistic portions of the Artwork to another party without prior written consent of the CITY.
7.20.6 The ARTIST represents and warrants to the CITY that the Artwork is unique and an edition of one and does not infringe upon any copyright of any person or entity, and that the ARTIST will not execute or authorize another to execute another work of art of the same theme and/or design, dimensions, and/or materials as the Artwork commissioned pursuant to this
Agreement. This warranty shall continue in effect for a period of the life of the ARTIST.
7.20.7 The ARTIST agrees to cooperate in making or permitting adjustments to the Artwork if necessary to eliminate any potential 13 safety hazards, as determined by the CITY in its sole discretion, which become apparent within one (1) year of the date the Artwork is Accepted by the CITY.
7.20.8 The terms of this Section 7.19 shall survive the expiration or termination of this Agreement.
7.21 INTELLECTUAL PROPERTY RIGHTS
Artist hereby agrees that all copyright interests, title, and ownership in the Artwork shall be owned by the California Department of Transportation (Caltrans). Artist acknowledges that by signing, executing, and notarizing Caltrans Assignment and Transfer of Copyright and Waiver of Moral Rights in Artwork agreement, which is hereby incorporated by reference and made part of this Agreement and attached as Attachment B, Artist has conveyed, transferred, and irrevocably assigns to Caltrans, the Artists' entire and exclusive copyright interests under federal and state copyright laws.
Artist further grants to the CITY an irrevocable and exclusive worldwide license to reproduce, distribute, and/or display two- dimensional reproductions of the Artwork for any non-commercial purpose including, without limitation, advertising, brochures, postcards, media publicity, and catalogues or similar publications.
All such reproductions shall bear a copyright notice in ARTIST'S name. ARTIST hereby grants to the CITY the right to reproduce and retain copies of the design plans and drawings produced and used by the ARTIST in the design and installation of the Artwork for the purposes of public exhibition related to the display of the artwork.
CITY acknowledges that Caltrans owns the copyright in the Artwork by assignment from ARTIST and that pursuant to that assignment, attached as Attachment B, ARTIST enjoys various continuing rights in the Artwork. CITY agrees that ARTIST may exercise any and all of Artist's rights as set out in Attachment B without requiring any consent from CITY and without payment of any royalties to CITY.
7.21 CITY'S RESPONSIBILITY AFTER ACCEPTANCE
7.21.1 The CITY recognizes that the maintenance of the Artwork is essential to the integrity of the Artwork and agrees that it will take reasonable efforts to see that it is properly maintained, considering the written maintenance guidelines of the
ARTIST delivered with the Completion Notice. The CITY
14 reserves the right to make minor or emergency repairs without consultation with the ARTIST provided the work is performed in accordance with recognized principles of
conservation. In the event the CITY desires to make repairs to or to restore the Artwork during the ARTIST's lifetime and such work does not comply with the ARTIST's written
maintenance guidelines, the CITY shall make a good faith effort to notify the ARTIST in writing at least thirty (30) days in advance to request that ARTIST advise CITY about the proposed repair or restoration, and ARTIST shall have a right to reasonable compensation with respect to such
advice and/or services provided.
7.22 RECORDS RETENTION AND INSPECTION
7.22.1 Upon receipt of a written request, ARTIST shall, at no cost to CITY, make available to CITY and all authorized representatives for examination, audit, excerpt, copy or transcription any pertinent transaction, activity, timecard or other record relating to this Agreement. Failure on the part of ARTIST to comply with the provisions of this Paragraph shall constitute a material breach of this Agreement upon which CITY may terminate or suspend this Agreement. Such material, including books, records, documents, case files and all pertinent costs, accounting, financial records, and proprietary data must be kept and maintained for a period of five (5) years after the term of this Agreement, or until such time as all audits are completed, whichever is later. CITY may require specific records be retained longer than five (5) years when there is outstanding litigation, unresolved disputes or any audit.
7.22.2 Upon expiration or termination of this Agreement, all documents, reports, records, case files, correspondence, and work product relating to ARTIST's operations under this Agreement shall be returned to CITY or to such other location in CITY as the CITY Contract Manager may direct. It is understood that all of the materials described above are the property of CITY and not of ARTIST.
7.22.3 In the event that an audit specifically regarding this Agreement is conducted by any Federal or State auditor, or any auditor or accountant employed by ARTIST or otherwise, ARTIST shall file a copy of each such audit report with the CITY Contract Manager within thirty (30) days after ARTIST's receipt thereof.
7.23 TERMINATION FOR CONVENIENCE OF THE CITY
7.23.1 Performance of services under this Agreement may be terminated by CITY in whole or in part when such action is deemed by CITY to be 1igi its best interest. Termination of work
shall be effected by delivery to ARTIST of a ten (10) calendar day prior written Notice of Termination specifying the extent to which the performance of work is terminated and the date upon which such termination becomes effective.
7.23.2 If, during the term of this Agreement, CITY funds appropriated for the purpose of this Agreement are reduced or eliminated, CITY may immediately terminate this Agreement upon written notice to ARTIST.
7.23.3 After receipt of the Notice of Termination and except as otherwise directed by CITY, ARTIST shall:
7.23.3.1 Immediately stop services under this Agreement on the date and to the extent specified in the Notice of
Termination.
7.23.3.2 Complete performance of such part of the work as shall not have been terminated by the Notice of Termination.
7.23.4 After receipt of the Notice of Termination, ARTIST shall submit to CITY, in the form and with the certifications as may be prescribed by CITY, its termination claim and invoice. Such claim and invoice shall be submitted promptly, but not later than three (3) months from the effective date of termination. Upon failure of ARTIST to submit its termination claim and invoice within the time allowed, CITY may determine, on the basis of information available to CITY, the amount, if any, due to ARTIST in respect to the termination and such determination shall be final. After such determination is made, CITY shall pay ARTIST the amount so determined.
7.23.5 In the event it is determined by CITY that ARTIST has been overcompensated, CITY shall notify ARTIST of the
overcompensation, and ARTIST must provide a written
response within thirty (30) days of the receipt of such notice, including any refund that may be due CITY.
7.23.6 CITY and ARTIST shall negotiate an equitable amount to be paid to ARTIST by reason of the total or partial termination of work pursuant to this paragraph. Said amount shall include a proportional payment for satisfactory work performed and reasonable expenses incurred up to the effective date of termination and may include a reasonable allowance for profit on work done but shall not include an allowance on work terminated.
CITY shall pay the agreed amount; subject to other limitations and provided that such amount shall not exceed the total funding obligated under this Agreement as reduced by the number of 16 payments otherwise made and as further reduced by the contract price of work not terminated.
7.23.7 Upon termination of this Agreement, ARTIST shall deliver to CITY all work completed or in progress, including all data, reports and deliverables within ten (10) business days after termination of this Agreement. Upon such termination CITY use of ARTIST's
copyrighted designs shall be subject to further agreement between the parties.
7.23.8 Upon termination of this Agreement, ARTIST shall comply with the provisions of Section 7.22, Records Retention and Inspection, herein above.
7.24 TERMINATION FOR DEFAULT OF ARTIST
7.24.1 CITY may, subject to the provisions outlined below, by written notice of default to ARTIST, terminate the whole or any part of this Agreement in any one of the following circumstances:
7.24.1.1 If ARTIST fails to perform the service within the time specified or, with prior CITY approval, any extension
thereof.
7.24.1.2 If ARTIST fails to perform any of the other provisions of this Agreement, or so fails to make progress as to
endanger performance of this Agreement in accordance
with its terms, and in either of these two circumstances does not remedy such failure within a period of five (5) calendar days (or such longer period as CITY may
authorize in writing) after receipt of notice from CITY specifying such failure.
7.24.2 In the event CITY terminates this Agreement in whole or in part as provided in this Section 7.24, CITY may procure, upon such terms and in such manner as CITY may deem appropriate,
services to restore the Premises to the condition which existed prior to the commencement of services hereunder. ARTIST shall be liable to CITY for the cost of such services.
7.24.3 If, after giving Notice of Termination of this Agreement under the provisions of this Section 7.24, it is determined for any reason that ARTIST was not in default under the provisions of this paragraph or that the default was excusable, the rights and obligations of the parties shall be the same as if the notice of termination had been issued pursuant Section 7.23, Termination for Convenience of the CITY, herein above.
7.24.4 Upon termination of this agreement, ARTIST shall adhere to the termination provisions of Sections 7.23.7 and 7.23.8, Termination 17 for Convenience of the CITY, herein above.
7.25 TERMINATION FOR NON -APPROPRIATION OF FUNDS
7.25.1 CITY's obligation is payable only from funds appropriated for the purpose of this Agreement. All funds for payments after the end of the current fiscal year are subject to Federal, State or CITY's legislative appropriation for this purpose. In the event this Agreement extends into succeeding fiscal year periods and the Board of Supervisors or the State or Federal Legislature does not allocate sufficient funds for the next succeeding fiscal year payments, services shall automatically be terminated as of the end of the then current fiscal year. Such termination shall be considered a termination for convenience of the CITY.
7.25.2 CITY shall make a good faith effort to notify ARTIST, in writing, of such non -appropriation at the earliest time.
7.26 VALIDITY
The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision.
7.27 WAIVER
No waiver of a breach of any provision of this Agreement by CITY shall constitute a waiver of any other breach of said provision or any other provision of this Agreement. Failure of CITY to enforce at any time, or from time to time, any provision of this Agreement, shall not be construed as a waiver thereof.
7.28 FORUM SELECTION
All disputes arising out of this Agreement which cannot be resolved by good faith negotiation between the parties in a reasonable time period shall be submitted to mediation in Orange County in accordance with the rules of Arts Arbitration and Mediation Services, a program of California Lawyers for the Arts. If mediation is not successful in resolving the entire dispute, any outstanding issues shall be submitted to final and binding arbitration in Orange County. The arbitrator's award shall be final, and judgment may be entered upon it by any court having jurisdiction thereof. The prevailing party in any arbitration shall be entitled to reasonable attorney's fees and costs, including those of the arbitrator, incurred in the enforcement of this Agreement.
7.29 DEATH OR INCAPACITY OF ARTIST
If the ARTIST becomes unable to complete the Artwork due to death or incapacity, such death or incawcity will not be treated by the CITY as
a default on the part of the ARTIST, except that the CITY is not obligated to accept the Artwork.
In the event of incapacity of the ARTIST before completion of the Artwork, it is the intent of the parties that the CITY and the ARTIST and/or the authorized representatives of the ARTIST will consult to determine if the Artwork can be completed by a third party or parties to the satisfaction of the CITY and the ARTIST. In the event of incapacity of the ARTIST, the CITY may elect to terminate this Agreement or may elect to have the Artwork completed by a third party or parties. Should the Artwork be completed by a third party or parties, the ARTIST will retain rights under Section 7.20 herein above.
In the event of death of the ARTIST, this Agreement shall terminate effective the date of death. At the CITY's request, the ARTIST's executor shall deliver to the CITY the Artwork in whatever form or degree of completion it may be in at the time. The title to the Artwork shall then transfer to the CITY however the ARTIST's heirs shall retain all rights under Section 7.20 herein above. Should the Artwork be incomplete, the CITY and the ARTIST's heirs will consult to determine whether the Artwork can be completed by a third party or parties, and how to properly credit the Artwork.
8.0 STANDARD CONTRACT TERMS
8.1 ASSURANCE OF COMPLIANCE WITH CIVIL RIGHTS LAWS
ARTIST hereby assures that it will comply with Subchapter VI of the Civil Rights Act of 1964, 42 USC Sections 2000e through 2000e (17), to the end that no person shall, on grounds of race, creed, color, sex, national origin, age, condition of mental or physical handicap, marital status, or political affiliation, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under this Agreement or under any project, program, or activity supported by this Agreement.
8.2 CONFLICT OF INTEREST
8.2.1 ARTIST represents and warrants that no CITY employee whose position in CITY enables him/her to influence the award of this Agreement, and no spouse or economic dependent of such
employee is or shall be employed in any capacity by ARTIST herein or does or shall have any direct or indirect financial interest in this Agreement.
9.0 PREVAILING WAGE
The construction, alteration, demolition, installation, or repair of public art with CITY and State of California funds constitutes Public Works as 19 defined in section 1720 of the California Labor Code. Therefore, this AGREEMENT may include both prevailing wage and non- prevailing wage work. Therefore, ARTIST and Subcontractors must comply with the requirements of Labor Code section 1720 et seq. and the Prevailing Wage Requirements as specified in Attachment I. These include, but are not limited to:
• Payment of, at a minimum, prevailing wage to qualifying workers hired by ARTIST, or any Subcontractor, to install or construct public art • Maintaining and reporting certified payroll records for qualifying workers hired by ARTIST, or any Subcontractor, to install or construct public art • Employment of apprentices for qualifying projects when workers are hired by ARTIST, or any Subcontractor, to install or construct public art (Labor Code § 1777.5)
• Registration of subcontractors performing qualifying work of installing or constructing public art with the California Department of Industrial Relations.
By executing this AGREEMENT, ARTIST hereby acknowledges that:
"I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract."
If applicable, subcontract agreements for installation or construction of the artwork shall require subcontractor to comply with California Prevailing Wage law and the requirements of the Prevailing Wage Requirements.
IN WITNESS THEREOF, CITY has caused this Agreement to be executed by Damien R. Arrula, City Administrator. ARTIST has caused this Agreement to be executed by its duly authorized representative.
CITY OF PLACENTIA
By: Date:
Damien R. Arrula,
City Administrator
ARTIST
By: Date:
Alejandro Poli, Jr.
20 APPROVED AS TO FORM:
Christian L. Bettenhausen,
City Attorney
Robert S. McKinnell,
City Clerk
Date:
Date:
21 ATTACHMENT A
SCOPE OF WORK, SCHEDULE, COSTS AND FEES
FOR FINAL INSTALLATION
ARTIST Overall Responsibilities:
1. Time is of the essence in this Agreement, which is tied to the expenditure of grant funds and the murals must be completed and final invoicing processed prior to June 30, 2023. In the event of a substantial delay in the completion of the murals a reduction of the artist fee will be assessed in the amount of $500 for every day the deliverables are late beyond the date noted above.
2. ARTIST agrees to understand and adhere to safety requirements of the City and Caltrans in the Design of the Artwork. The City and Caltrans will inform the artist about safety issues and expectations.
3. ARTIST will adhere to the schedule provided to the City. The schedule shall be provided before the start of any work. Unless otherwise agreed in a written Agreement by and between the County and Artist payment amount to the Artist shall not increase if schedule changes.
4. ARTIST shall perform all services and furnish all supplies, materials, and equipment as necessary for the painting of the Artwork.
5. ARTIST is responsible for providing professional photography of the Artwork based on the City's photographic guidelines.
CITY Overall Responsibilities:
1. CITY will set and coordinate meetings between the ARTIST and the other members of the design review committee and Caltrans, as needed to complete this scope of work.
2. CITY will ensure that the premises are prepared for the timely delivery and painting of Artwork.
3. CITY shall provide for the ARTIST's review, draft text and images on the Artwork and project for the CITY Arts Department's web site, and print materials, such as post -cards or brochures.
4. CITY will inform and include the ARTIST of any dedication events for the Artwork and/or the project.
5. The City's public information officer will coordinate inquiries from the media regarding the Artwork, especially in association with a dedication A2
event.
ARTIST Specific Tasks:
Meetinas:
1. ARTIST shall attend follow up meeting(s) and/or participate in conference calls on an as -needed basis to coordinate design details for Artwork placement and other elements to be located at the identified site.
2. ARTIST shall provide the City's project manager with a project completion schedule upon receipt of a Notice to Proceed.
Payments to ARTIST:
As defined in the Agreement the ARTIST shall be paid a fee not to exceed the amount of $100,000 as specified in Section 5.0 therein. All expenses incurred by the ARTIST are included in this fee and request for payment shall be made on a milestone basis, accompanied by a progress report and invoice.
1. 50 percent ($50,000) upon CITY's issuance of Notice to Proceed.
2. 50 percent ($50,000) upon completion and final acceptance of murals.
Payment shall be made within forty-five (45) consecutive calendar days of receipt and approval of the payments request. The ARTIST shall be responsible for all Federal and State income taxes associated with this agreement, as well as any sales, use or privilege tax which might be assessed.
A2
Attachment B
Caltrans Assignment and Transfer of Copyright and Waiver of Moral Rights in Artwork Agreement
11 ASSIGNMENT AND TRANSFER OF COPYRIGHT AND
WAIVER OF MORAL RIGHTS IN ARTWORK
This Assignment and Transfer of Copyright and Waiver of Moral Rights in Artwork (the "Agreement") is entered on the 8 day of /401''IBk/Z 207,1 -(the "Effective Date"), by and between the Artist, Alejandro Poli Jr., with his principal address in Ontario, CA (the "ASSIGNOR") and the California Department of Transportation located at 1120 N Street, Sacramento, CA 95814 (the "ASSIGNEE") (collectively, known as the "PARTIES"), with respect to this original visual artwork described below as the 'The Good People Under Our Sun and Moon' murals.
RECITALS:
WHEREAS the PARTIES agree to the following definitions as used herein and throughout this Agreement:
1. Copyrights: Means a form of protection provided, as defined and enforceable under the U.S. Copyright Act of 1976, to authors of original works of authorship. The original works of authorship include all categories of artistic work protectable under the copyright laws, including but not limited to, the intangible property rights in pictorial, graphic, architectural, and sculptural works, fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated either directly or with the aid of a machine or device.
2. Copyright Ownership: Means the owner of all Copyright interests in the work, as defined and enforced under the U.S. Copyright Act of 1976, to whom the law grants specific and exclusive rights to do and authorize any of the following: 1) to reproduce and make copies of the work; 2) to prepare derivative works based on the work; 3) to sell or distribute copies of the work to the public or other transfer of ownership, or by rental, lease, or lending; 4) to display the work publicly; 5) to perform the work publicly; and 6) to enforce the work against unauthorized use.
3. Local Agency Agreement: Means the agreement entered into between ASSIGNOR, Alejandro Poli Jr. and the City of Placentia (hereinafter, "Local Agency") pertaining to, but not limited to, the design, installation, operation, maintenance, removal of the transportation art, and the incorporation of ASSIGNOR's executed and notarized Assignment and Transfer of Copyright and Waiver of Moral Rights in Artwork by ASSIGNOR as part of the Local
Agency Agreement. The signed and executed Local Agency Agreement is hereby incorporated by reference and made part of this Agreement and attached as Exhibit A to this Agreement.
4. Final Artwork: Means the original visual artwork described below as 'The Good People Under Our Sun and Moon', developed, designed, and/or created by ASSIGNOR which form the final Material Object (as defined below) of the work commissioned exclusively for the Project (as defined below), and as detailed in the Project description, provided by ASSIGNOR and the Local Agency and approved by ASSIGNEE through the Transportation Art Proposal application process (as defined below).
ASSIGNOR acknowledges that the Final Artwork (as described below) includes Preliminary Works (as defined below) and the Material Object (as defined below) which are incorporated and made part of the final representation of the Final Artwork. All documentation pertaining to Final Artwork is hereby incorporated by reference and made part of this Agreement and attached as Exhibit B to this Agreement.
5. Material Object: Means the tangible visual Final Artwork created, designed, constructed, and installed on ASSIGNEE's right of way by ASSIGNOR, the Local Agency, the Local Agency's contractor, or by a third -party acting on behalf of the Local Agency pursuant to the Local Agency Agreement and the Transportation Art Proposal. Photographs of the Material Object are hereby incorporated by reference and made part of this Agreement, and attached as Exhibit C to this Agreement, upon completion of installation of the Material Object.
6. VARA: Means the Visual Artists Rights Act of 1990, which confers upon authors of works of visual art, several types of attribution and integrity rights, including but not limited to, the right to prevent any intentional distortion, mutilation, or other modifications to his/her visual artwork, and to prevent the destruction of a visual artwork of recognized stature.
7. CAPA: Means the California Art Preservation Act of 1979, which confers certain rights to artists of works of fine art (original paintings, sculptures, drawings or original works of art in glass, of recognized artistic quality), including, but not limited to, the right to prohibit the intentional commission of any physical defacement, mutilation, alteration, or destruction of a work of fine art by any person or entity who possesses or owns the fine art.
8. Project: Means the Transportation Art Proposal project approved through the Transportation Art Proposal application process (as defined below), including but not limited to, the name, content, size, proposed installation location, required attachments, maps, design specifications, structural plans, installation plans, traffic management plans, reproducible drawings, sketches, photographs, or other appropriate renditions of the visual art to be installed. The above-mentioned documentation of the Project is hereby incorporated by reference and made part of this Agreement and attached as Exhibit D to this Agreement.
9. Preliminary Works: Means all documentation developed specifically to prepare the Final Artwork, as set forth in Exhibit B. The Preliminary Works include, but are not limited to, concepts, photographs, sketches, photo simulations, drawings, other appropriate renditions of the visual art, and other alternate or preliminary designs and documents developed by ASSIGNOR and which form part of or all the Final Artwork. The Preliminary Works are hereby incorporated by reference and made part of this Agreement, and attached as Exhibit E.
10. Transportation Art Proposal ("TA"): Means the transportation art proposal application used by the sponsoring agency to submit its' transportation art proposal project for review, consideration, processing and approval by ASSIGNEE, including but not limited to, ASSIGNEE's Assignment and Transfer of Copyright and Waiver of Moral Rights in Artwork, the administrative procedures, required attachments, design specifications, structural plans, installation plans, traffic management plans, resolutions, artist's background, maintenance and removal plans, reproducible drawings, sketches, designs, photographs, photo simulations and other appropriate renditions of the transportation art proposal project, prior to the issuance of encroachment permits for the installation of the transportation art project on ASSIGNEE's right of way. The approved TA is hereby incorporated by reference and made part of this Agreement, and attached as Exhibit F. 1 1. Artist(s): Refers to any artist(s) who contributes to the creation, design, development and/or installation of the Preliminary Works, Final Artwork and/or the Material Object. For the avoidance of doubt the term "Artist(s)" refers to any person, adult, youth, student or minor.
WHEREAS the PARTIES agree to the description of the Final Artwork (attached as Exhibit B) as described by ASSIGNOR as follows:
1. Description of the Final Artwork:
a) Title: 'The Good People Under Our Sun and Moon'
b) Size: 180'x44' & 180'x33'
c) Category of Work: (Works of Visual Art) - Mural
d) Project: 12-0T420 and attached as Exhibit D;
e) Installation Location: SR -57, PM 16.74
f) Year Final Artwork Created: 2023
g) Artist (ASSIGNOR): Alejandro Poli Jr.
h) Artist's (ASSIGNOR) Signature:
NOW THEREFORE, in consideration of the mutual promises, covenants, warranties, mutual obligations and terms and conditions hereinafter set forth; and other good and valuable consideration received by ASSIGNOR from the Local Agency, the receipt and sufficiency of which is hereby acknowledged by ASSIGNOR, the PARTIES hereby agree as follows:
1. Assignment and Transfer of Copyright Ownership in the Final Artwork:
a) ASSIGNOR hereby conveys, transfers and irrevocably assigns to ASSIGNEE all of ASSIGNOR's Copyright Ownership rights, title and interests in the Final Artwork, including, but not limited to, ASSIGNOR's rights in: (i) ASSIGNOR's entire and exclusive Copyrights under federal and state copyright laws, in the United States and all jurisdictions outside the United States; (ii) ASSIGNOR's exclusive rights, title, and interests under common law Copyrights; (iii) any and all other privileges and rights in the Final Artwork attributed to a copyright owner; and (iv) all other intellectual property rights assigned to ASSIGNOR by additional Artist(s) in (i) -(iv) associated and subsisting in the Final Artwork (if any). ASSIGNEE shall be the sole and exclusive copyright owner of ASSIGNOR's Copyright Ownership rights in the Final Artwork and of ASSIGNOR's Copyrights in the Final Artwork from the Effective Date forward. ASSIGNEE shall have the sole and exclusive right to secure registration of the Copyrights in the Final Artwork internationally. No Copyrights Ownership rights in the Final Artwork and/or Copyrights in the Final Artwork, shall be retained by ASSIGNOR, nor shall there be any reversion of those rights to ASSIGNOR in the future, other than those rights specifically licensed and described in section 5 (a) below, in this Agreement;
b) ASSIGNOR hereby conveys, transfers and irrevocably assigns to ASSIGNEE all of ASSIGNOR's ownership interests in the Material Object in its tangible form, in which the copyrightable Final Artwork is embodied. ASSIGNOR acknowledges that the Material Object is the Final Artwork in its tangible form as defined above in section 5 of the definitions in this Agreement; c) ASSIGNOR hereby conveys, transfers and irrevocably assigns to ASSIGNEE ASSIGNOR's full-term and renewal term Copyright Ownership rights, title and interests in the Final Artwork under federal, state and common copyright laws;
d) ASSIGNOR agrees that this assignment and transfer of Copyright Ownership rights, interests and title subsisting in the Final Artwork, will remain in effect for the entire duration of such Copyright and will include all of ASSIGNOR's exclusive rights, interests, title and ownership under the copyright laws, subject to the license ASSIGNEE grants to ASSIGNOR in section 5 (a) below.
2. Waiver of Statutory Moral Rights by ASSIGNOR:
a) ASSIGNOR hereby acknowledges the existence of his or her federal and state statutory moral rights and protections under VARA and CAPA, as those rights and protections are more particularly described in 17 U.S.C. section 106A(a) VARA, and in the California Civil Code section 987 CAPA, and knowingly executes this waiver on the following terms:
i. Scope: This waiver applies to the following visual work: Final Artwork, described in this Agreement and attached as Exhibit B, entitled, 'The Good People Under Our Sun and Moon.'
ii. Uses Covered: This waiver applies to all applicable uses, with respect to the Final Artwork enumerated in section 2(a)(i) above, reserved to an owner of a lawfully copyrighted work under the copyright laws, including, but not limited to, the display of the Final Artwork publicly and to all applications in which either the attribution right, the integrity right, or the personal moral right of ASSIGNOR may be implicated.
Waiver: With respect to the Final Artwork enumerated in section 2(a)(i) above and the uses enumerated in section 2(a)(ii) above, ASSIGNOR, hereby expressly and forever waives any and all moral rights and protections arising under 17 U.S.C. section 106A(a) and California Civil Code section 987, and any other
rights arising under U.S. federal or state laws or under the laws of any other country that conveys rights and protections of the same nature as those conveyed under 17 U.S.C. section 106A(a) and California Civil Code section 987, or any other type of moral rights or droit moral in the Final Artwork.
3. Covenant to Cooperate by ASSIGNOR:
a) ASSIGNOR does hereby covenant and agree to cooperate with
ASSIGNEE
whereby, ASSIGNEE may enjoy fully the exclusive Copyright Ownership rights, title, and interests herein conveyed. Such cooperation shall include:
i. Prompt execution of all papers (prepared at the expense of ASSIGNEE) which are deemed necessary or desirable by
ASSIGNEE to perfect its rights, title, and interests herein conveyed; and
ii. Prompt execution of all petitions, oaths, specifications, declarations, or other papers (prepared at the expense of ASSIGNEE) which are deemed necessary by ASSIGNEE for
obtaining copyright registration with the United States Copyright Office covering said Final Artwork.
4. Relationship of the PARTIES:
a) The PARTIES agree that ASSIGNEE is solely a third -party beneficiary and that ASSIGNEE is not a party to nor legally obligated or bound by any of the terms and conditions contained in the Local Agency Agreement described above in section 3 of the definitions section of the Agreement. The PARTIES agree that ASSIGNOR is an independent contractor commissioned to create, develop and install the Final Artwork by the Local Agency and that no agency, partnership, joint venture, employee -employer relationship is intended or created by this Agreement. All rights, interests and title granted to ASSIGNEE are contractual in nature and expressly defined by this Agreement.
5. Grant to ASSIGNOR:
a) ASSIGNEE grants to ASSIGNOR, pursuant to this Agreement, a perpetual, exclusive, worldwide, irrevocable, sub -licensable, royalty -free license to use and exploit the Final Artwork, including in its Preliminary Works and final Material Object form. These rights include the following:
Right to Reproduce: ASSIGNOR may reproduce the Final
Artwork and derivatives thereof in copies or phonorecords, without ASSIGNEE's prior consent;
ii. Right to Prepare Derivatives: ASSIGNOR may prepare
derivatives based upon the Final Artwork (in which the
underlying work is recast, transformed, altered or adapted), without ASSIGNEE's prior consent;
Right of Public Distribution: ASSIGNOR may publish, sell and distribute copies of the Final Artwork and derivatives thereof, publicly, without ASSIGNEE's prior consent (including the right to exploit copies of the Final Artwork and derivatives thereof); iv. Right of Public Performance: ASSIGNOR may publicly perform the Final Artwork and derivatives thereof in any manner applicable, without ASSIGNEE's prior consent;
v. Right of Public Display: ASSIGNOR may publicly display the Final Artwork and derivatives thereof, including but not limited to, the display of the Final Artwork and derivatives thereof in ASSIGNOR's portfolio, websites, galleries, design periodicals and other media or exhibits. ASSIGNOR may describe, its role in relation to the Project and the services provided to other parties on its website and in other promotional materials, for any purpose, without ASSIGNEE's prior consent;
vi. Accreditation of Final Work: ASSIGNEE shall make reasonable efforts to credit ASSIGNOR as the original creator of the Final Artwork in connection with any uses by ASSIGNEE;
vii. Reprography Right: ASSIGNOR may make reprographic
reproductions database storage or retrieval, as well as making visually perceivable facsimile copies of previously published material, in each case by any means and using any technology, whether now known or hereafter developed, by photocopying, xerograph, duplicating (from stencil) or similar means, microform (including microfiche), transcription or drawing (including tracing) for an overhead or slide projection; and viii. Enforcement of Intellectual Property Rights: ASSIGNOR will have the exclusive right (but not the obligation) and ASSIGNEE grants ASSIGNOR the exclusive authority, to protect and enforce
ASSIGNEE's Copyrights in the Final Artwork, including bringing legal proceedings against infringers and issuing notice and take-down requests under the Digital Millennium Copyright Act (DMCA) (each a "Protection Action"), at the sole expense of ASSIGNOR.
6. Copyright Designation:
a) All displays and/or publications of the Final Artwork shall bear ASSIGNEE's copyright designation notice as suggested by the U.S. Copyright Office.
7. Term:
a) The Copyrights protection term of this irrevocable and exclusive assignment shall be for the full term of the copyrighted work, including its renewal term and any applicable extended renewal term of the Copyrights' protection. The terms, covenants, and provisions of this assignment shall inure to the benefit of ASSIGNEE, its officers, successors, assigns, and/or other legal representatives, and shall be binding upon said ASSIGNOR.
8. Effective Date:
a) This Agreement shall be effective as of the day, month and year first written above; upon signing by both PARTIES this Agreement; and upon the signature and placement of the official seal of a certified notary public on this Agreement. The term of this Agreement shall continue as detailed in section 7 "Term," above.
9. Warranty:
a) ASSIGNOR warrants and represents that:
i. The Final Artwork is an original visual work of authorship of ASSIGNOR;
ii. The ASSIGNOR as creative originator is the sole proprietor of the Final Artwork;
iii. The Final Artwork does not infringe any existing Copyrights; iv. The Final Artwork is not regarded by ASSIGNOR as Site -Specific Art and therefore ASSIGNOR will not seek legal protection for the Final Artwork as visual art that derives its meaning from the surrounding environment;
v. The ASSIGNOR has not entered into any assignments, transfers, licenses, contracts or mutual understandings in conflict with the terms and conditions of this Agreement; and
vi. There are no claims currently pending or threatened, nor does ASSIGNOR have any reason to believe that any claims will be brought or threatened in the future, against ASSIGNOR's rights, ownership, title or interests in the Final Artwork.
10. Indemnification:
a) ASSIGNOR agrees to indemnify and hold harmless ASSIGNEE against any and all claims, lawsuits or legal actions made in connection with the Final Artwork, including but not limited to, any copyright infringement claims, moral rights violation claims, loss claims, personal and/or real property claims, injury claims, breach of contract claims, inverse condemnation claims, conversion claims, taking of property claims, and/or damage claims (including any related legal costs, attorney fees or expenses properly incurred by ASSIGNEE).
1 1. Delivery:
a) ASSIGNOR must provide ASSIGNEE with this Agreement, properly executed, signed, dated, and notarized and attach the required Exhibit A (Local Agency Agreement), Exhibit B (Final Artwork), Exhibit C (Material Object), Exhibit D (Project), Exhibit E (Preliminary Works) and Exhibit F (TA Proposal Application), necessary to give effect to this Agreement.
ASSIGNOR shall provide to ASSIGNEE the "original wet signature" of this Agreement with the attached above-mentioned Exhibits. ASSIGNOR will receive a copy of the fully executed Agreement.
12. General Terms:
a) Applicable Law: This Agreement must be read and construed according to the laws of the State of California and the PARTIES submit to the jurisdiction of the State of California.
b) Amendments: This Agreement may not be varied, modified, renewed, or revoked, unless agreed to by both PARTIES, made in writing and signed by both PARTIES, by a person in authority to contractually bind and sign on behalf of such party.
c) Severability: If any provision of this Agreement is held by a court to be unlawful, unconscionable, invalid, unenforceable or in conflict with any rule
or law, statute, ordinance or regulation, it is to be severed so that the validity and enforceability of the remaining provisions are not affected.
13. Further Agreements:
a) This instrument contains the entire and only agreement between the PARTIES and supersedes all pre-existing agreements between them respecting its subject matter. Any representation, promise, or condition in connection with said subject matter that is not incorporated in this Agreement shall not be binding upon either party.
IN WITNESS WHEREOF, the PARTIES have caused this Agreement to be executed the day and year first written above; by the signatures of each PARTY below; and by the signature and official seal of a certified notary public:
ARTIST (ASSIGNOR)
ARTIST (ASSIGNOR) NAME:
Alejandro Poli Jr.
ARTIST (ASSIGNOR) ADDRESS: 2-f'/ ©AK c/t /z-- pg. O 7 E.
Ontario, CA c7 /W7 /
ARTIST (ASSIGNOR) SIGNATURE:
DATE:1// /20 2 -
Alejandro 'oli Jr., personal! appeared before me,
1► k'U fvet � iib!'. r , and proved to me with satisfactory evidence to be the person whose name is subscribed to the above Assignment and Transfer of Copyright and Waiver of Moral Rights in Artwork, and acknowledged to me that r she] executed the same in his authorized capacity and that by his signature an the Ass!► nment and Transfer of Copyright and Waiver of Moral Rights in Artwork, di. ii or herself] execute this Assignment and Transfer of Copyright and '' • ' - r of Moral Rights in Artwork.
WITNESS MY HAND AND OFFICIAL SEAL:
/14
SIGNATURE OF NOTARY PUBLIC
MARILY PEREZ
Notary Public - California
San Bernardino County
Commission k 2312165
My Comm. Expires Nov 9, 2023
CALIFORNIA DEPARTMENT OF TRANSPORTATION (ASSIGNEE)
ASSIGNEE NAME:
ASSIGNEE SIGNATURE:
Eric Dickson
ASSIGNEE TITLE: SENIOR LANDSCAPE ARCHITECT
DATE:
ASSIGNEE ADDRESS:
1750 East 4th Street, Suite 100 Santa Ana, CA 92705
11/17/2022
APPROVED AS TO LEGAL FORM BY:
MARIA S. SAPIANDANTE, ATTORNEY FOR ASSIGNEE
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POLIAL0001 AMARTINEZ
CERTIFICATE OF LIABILITY INSURANCE
DATE (MM/DDIYYYY)
11/17/2022
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
PRODUCER CONTACT
NAME:
FACE Insurance, a division of Vaultari Insurance Services (A/CNNo, Ext): (916) 721-2845 FAX No): (866) 400-4793
PO Box 646
Roseville, CA 95678 ADDREss: [email protected]
INSURED
Alejandro Poli Jr. Man One Art
4335 E. Lowell Street, Unit C
Ontario, CA 91761
INSURER(S) AFFORDING COVERAGE
INSURER A : Security National Insurance Company
INSURER B :
INSURER C :
INSURER D :
INSURER E :
INSURER F :
NAIC #
19879
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLIC ES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH DOLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY DAID CLAIMS.
INSR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF POLICY EXP LIMITS
LTR INSD WVD (MM/DD/YYYYI (MM/DDIYYYY)
A X COMMERCIAL GENERAL LIABILITY
CLAIMS -MADE X OCCUR X X NA107217208
GEN'L AGGREGATE LIMIT APPLIES PER:
POLICY PRO LOC
JECT
OTHER:
AUTOMOBILE LIABILITY
ANY AUTO
OWNED
AUTOS ONLY
HIRED
AUTOS ONLY
UMBRELLA LIAB
EXCESS LIAB
■
■
SCHEDULED
AUTOS
NON -OWNED
AUTOS ONLY
OCCUR
CLAIMS -MADE
DED RETENTION $
WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY
ANY PROPRIETOR/PARTNER/EXECUTIVE
OFFICER/MEMBER EXCLUDED?
(Mandatory in NH)
If yes, describe under
DESCRIPTION OF OPERATIONS below
Y/N
N/A
12/11/2021 12/11/2022
EACH OCCURRENCE
DAMAGE TO RENTED
PREMISES (Ea occurrence)
MED EXP (Any one person)
PERSONAL & ADV INJURY
GENERAL AGGREGATE
PRODUCTS - COMP/OP AGG
$
$
$
COMBINED SINGLE LIMIT
(Ea accident) $
BODILY INJURY (Per person) $
BODILY INJURY (Per accident) $
PROPERTY DAMAGE
(Per accident) $
EACH OCCURRENCE $
AGGREGATE $
E.L
E.L
E.L
PER OTH-
STATUTE ER
EACH ACCIDENT $
DISEASE - EA EMPLOYEE $
DISEASE - POLICY LIMIT $
1,000,000
100,000
5,000
1,000,000
2,000,000
2,000,000
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) RE: Q1/2023
The City of Placentia and its elected and appointed boards, officers, officials, agents, employees, and volunteers are additional insureds with respect to:
liability arising out of activities performed by or on behalf of the Artist pursuant to its contract with the City; products and completed operations of the Artist; premises owned, occupied or used by the Artistautomobiles owned, leased, hired, or borrowed by the Artist per attached endorsement form 4901080711.
General Liability Waiver of Subrogation applies in favor of The City of Placentia and its elected and appointed boards, officers, officials, agents, employees, and volunteer per attached endorsement form 4901080711.
CERTIFICATE HOLDER CANCELLATION
City of Placentia
ATTN: Luis Estevez
401 E. Chapman Avenue
Placentia, CA 92870
ACORD 25 (2016/03)
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
AUTHORIZED REPRESENTATIVE
© 1988-2015 ACORD CORPORATION. All rights reserved.
The ACORD name and logo are registered marks of ACORD
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY
BLANKET ADDITIONAL INSUREDS -
OWNERS, LESSEES OR CONTRACTORS
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Policy Number: NA107217208 Endorsement Effective: 11/17/2022 12:01 a.m.
Named Insured
ALEX POLI
MAN ONE ART
Countersigned By:
SCHEDULE
Name of Person or Organization:
THE CITY OF PLACENTIA, AND ITS ELECTED AND APPOINTED BOARDS, OFFICERS,
OFFICIALS, AGENTS, EMPLOYEES, AND VOLUNTEERS
401 E. CHAPMAN AVENUE, PLACENTIA CA 92870
Location:
401 E. CHAPMAN AVENUE, PLACENTIA CA 92870
(If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.)
A. Section II — Who Is An Insured is amended to include as an insured the person or organization shown in the Schedule, but only to the extent that the person or organization shown in the Schedule is held liable for your acts or omissions arising out of your ongoing operations performed for that insured.
B. With respect to the insurance afforded to these additional insureds, the following exclusion is added:
2. Exclusions
This insurance does not apply to "bodily injury" or "property damage" occurring after:
(1) All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the site of the covered operations has been completed; or
(2) That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.
C. The words "you" and "your" refer to the Named Insured shown in the Declarations.
D. "Your work" means work or operations performed by you or on your behalf; and materials, parts or equipment furnished in connection with such work or operations.
Primary Wordine
If required by written contract or agreement: Such insurance as is afforded by this policy shall be primary insurance, and any insurance or self-insurance maintained by the above additional insured(s) shall be excess of the insurance afforded to the named insured and shall not contribute to it. 49-0108 07 11 May Include Copyrighted Material of Insurance Services Offices, Inc. Page 1 of 1 Used with permission
Waiver of Subroeation
If required by written contract or agreement: We waive any right of recovery we may have against an entity that is an additional insured per the terms of this endorsement because of payments we make for injury or damage arising out of "your work" done under a contract with that person or organization.
© ISO Properties, Inc., 2000 49-0108 07 11 I