24438.00000\33427549.1
1 CITY OF SAN JACINTO
MURAL PROJECT
1. Parties and Date. This Agreement is made and entered into this ____ day of ________, 20__, by and between the City of San Jacinto, a municipal corporation organized under the laws of the State of California with its principal place of business at 595 South San Jacinto Avenue, San Jacinto, California 92583 (“City”) and Alberto Ahumada DBA Studio Onextreme, with its principal place of business at 435 W Esplanade Avenue, Hemet, California 92543 (“Vendor"). City and Vendor are sometimes individually referred to herein as "Party" and collectively as "Parties."
2. Terms and Conditions. The Parties shall comply with the Terms and Conditions attached hereto as Exhibit “A” and incorporated herein by this reference.
3. Scope of Services; Schedule. The Vendor shall be solely responsible for providing all materials, labor, tools, equipment, light, transportation, and superintendence of every nature and all other services and all facilities necessary to execute, complete, and deliver the services as particularly described in the Scope of Services (“Services” or “Work”) attached hereto as Exhibit “B” and incorporated herein by this reference. The Services shall be completed timely and in accordance with the Schedule of Services set forth in Exhibit “B”.
4. Term. The term of this Agreement shall commence on the date entered above until (date of expiration), unless earlier terminated as provided herein. The scope of services shall be completed within this term
5. Compensation. Vendor shall receive compensation for Services rendered under this Agreement.
The total compensation shall not exceed $94,918.49 (“Agreement Price”). Vendor’sinvoices shall include a detailed description of the Services performed. Invoices shall be submitted to the City. Four invoices will be accepted. One invoice for plaster installation and wall preparation. A second invoice for gutter drains. A third invoice will be submitted upon completion of one mural by the Vendor and acceptance by the City. A final invoice will be submitted upon completion of the second mural by the Vendor and acceptance by the City. The City shall review and pay all non-disputed and approved charges on such invoices in a timely manner.
6. Insurance. In accordance with Section 3 of the Terms and Conditions, Vendor shall, at its expense, procure and maintain for the duration of the Agreement such insurance policies as checked below and provide proof of such insurance policies in a form satisfactory to the City.
Commercial General Liability Insurance:
$1,000,000 per occurrence/$2,000,000 aggregate.
$2,000,000 per occurrence/$4,000,000 aggregate.
Automobile Liability:
$1,000,000 combined single limit for bodily injury and property damage.
Workers’ Compensation:
Statutory Limits / Employer’s Liability $1,000,000 per accident or disease and a waiver of subrogation in favor of the City, its officers, agents, employees and volunteers.
7. Warranty of Title. Vendor represents and warrants that (a) the Work is solely the result of artistic effort of Vendor and its representatives; (b) the Work is unique and original and does not infringe upon any copyright; (c) the Work, or a duplicate thereof, has not been accepted for sale elsewhere; and (d) the Work is free and clear of any liens from any source whatsoever. 24438.00000\33427549.1
2 8. Copyright. Copyright of the Work and related design, drawings, sketches, and models will be owned by the Vendor until acceptance of Vendor’s Work by the City. Notwithstanding the foregoing, Vendor agrees not to make use of such copyright in the Work for any purpose other than the performance by Vendor of Vendor’s obligations under this Agreement of public artwork, without the written consent of City. Upon acceptance of Vendor’s Work, copyright of the Work will be owned jointly by the City and the Vendor and no further use of the copyright will be made by the Vendor and the City without the written consent of the other, which consent will not be unreasonably withheld. Vendor certifies that the Work is a unique work of art especially designed for the City and shall not duplicate or reproduce the Work nor shall the Vendor permit others to do so except with the written permission by the City. The City has the right to reproduce and distribute in printed form and on commercial documents and/or brochures or any other literature of the City describing or dealing with its real estate holdings, photographs, realistic renderings, videotapes, or films of the Work. Such reproductions and use of the images of the Work for promotional purposes shall not constitute a breach of copyright and no royalty shall be due and payable by the City to the Vendor for such use.
9. Credit to the Vendor. All reproductions of the Work by the City shall contain a credit to the Vendor.
10. Vendor Reproduction Rights. City agrees that the Vendor shall have the right to reproduce and distribute in printed form and on non-commercial educational materials and brochures advertising or promoting Vendor and Vendor’s career, two-dimensional images such as photos, slides or realistic renderings, video tapes, or films of the Work as installed and formally accepted by the City. Such reproductions and use of the images of the Work for promotional and educational purposes shall be deemed to not constitute a breach of copyright in any way and no royalty fee shall be due and payable to the Vendor for such use. Such reproduction and images of the Work for publicity, promotion, and educational purposes shall, to the extent reasonably possible and appropriate, give reference to the City.
11. Warranty of Work. Vendor warrants the Work to be of good quality and free from any defective or faulty material and workmanship. Vendor agrees that for a period of one (1) year after the date of final acceptance, Vendor shall within ten (10) days after being notified in writing by the City of any defect in the Work, commence and prosecute with due diligence all services necessary to fulfill the terms of the warranty at its sole cost and expense. For any Work so corrected, Vendor’s obligation hereunder to correct defective work shall be reinstated for an additional one (1) year period, commencing with the date of acceptance of such corrected work. The City acknowledges and agrees that this warranty covers defects arising under normal use, and does not cover defects resulting from misuse, abuse, neglect, repairs, alterations or attachments made by City or third parties not approved by Vendor, failure of the City to maintain the Work in accordance with the customer care instructions provided by Vendor, service performed to the Work by anyone who is not a representative of or is not authorized by Vendor, defects arising as a result of the existing condition of the wall at the time of installation as noted by Vendor in the pre-installation inspection, and flood, fire, earthquake, immersion in liquid, excessive physical force, tampering, incorrect electrical charge, electrostatic damage, temperature outside of range (-65F to 225F), forces of nature, influence from chemical products or other similar external causes. 24438.00000\33427549.1
3 IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written.
CITY OF SAN JACINTO Studio ONEXTREME
By: __________________________ By: __________________________ Robert A. Johnson, City Manager Its: __________________________ Printed Name: ____________________
Attest:
__________________________
Julia Espinoza, City Clerk
Approved as to Form:
__________________________
Best Best & Krieger LLP
City Attorney
24438.00000\33427549.1
Ex. A-1
EXHIBIT “A”
TERMS AND CONDITIONS FOR SERVICES
1. Compliance with Law. Vendor shall comply with all applicable laws and regulations of the federal, state and local government. Vendor certifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. By its signature hereunder, Vendor certifies that it is aware of the provisions of Section 3700 of the California 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 agrees to comply with such provisions before commencing the performance of the Services. Vendor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Vendor agrees to fully comply with Prevailing Wage Laws. If the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Vendor agrees to fully comply with Prevailing Wage Laws, including, along with subcontractors, being registered with the Department of Industrial Relations (Labor Code §§ 1725.1; 1771.1). It shall be mandatory upon the Vendor and all subcontractors to comply with all Prevailing Wage Laws, which include but are not limited to prevailing wages (Labor Code §§ 1771; 1774; 1775), employment of apprentices (Labor Code § 1777.5), certified payroll records (Labor Code §§ 1771.4; 1776), hours of labor (Labor Code §§ 1813; 1815) and debarment of contractors and subcontractors (Labor Code § 1777.1). This Agreement may be subject to compliance monitoring and enforcement.
2. Standard of Care. Vendor shall perform the Services in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession practicing under similar conditions, and as more fully described in Exhibit B
3. Insurance. If required by Section 6 of this Agreement, the Vendor shall take out and maintain during this Agreement: A. Commercial General Liability Insurance for bodily injury, personal injury and property damage, at least as broad as Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 0001); B. Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, at least as broad as Insurance Services Office Form Number CA 0001 (ed. 10/13) covering automobile liability, Code 1 (any auto); C. Workers’ Compensation; and D. Professional Liability (Errors and Omissions) coverage for a term acceptable to the City. Insurance carriers shall be licensed and authorized to do business in California. Such insurance carrier shall have not less than an "A:VII" rating according to the latest Best Key Rating unless otherwise approved by City. Vendor shall add City, its officers, officials, employees, agents, and volunteers as additional insureds on Vendor’s Commercial General Liability and Automobile Liability. Coverage provided by Vendor shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it.
4. Indemnification. To the fullest extent permitted by law, Vendor shall defend (with counsel approved by City), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death (collectively, “Claims”), to the extent arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Vendor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Vendor’s Services, the project, or this Agreement, including without limitation the payment of all expert witness fees, reasonable attorney’s fees and other related costs and expenses except to the extent such loss or damage caused by the sole negligence or willful misconduct of the City. Vendor’s obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant or the City, its officials, officers, employees, agents, or volunteers. If Vendor’s obligation to defend, indemnify, and/or hold harmless arises out of Vendor’s performance as a “design professional” (as that term is defined under Civil Code § 2782.8), then, and only to the extent required by Civil Code § 2782.8, which is fully incorporated herein, Vendor’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Vendor, and, upon Vendor obtaining a final adjudication by a court of competent jurisdiction, Vendor’s liability for such claim, including the cost to defend, shall not exceed the Vendor’s proportionate percentage of fault.
5. Laws; Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court in the County of Riverside, California.
6. Termination. The City may terminate the whole or any part of this Agreement for any or no reason by giving three (3) calendar days written notice to Vendor. In such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for the work. The City shall pay Vendor the reasonable value as determined by City of any portion of the Services completed prior to termination. The City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Vendor shall not be entitled to payment for unperformed Services and shall not be entitled to damages or compensation for termination of the Services. Vendor may terminate its obligation to provide further work under this Agreement upon thirty (30) calendar days written notice to City only in the event of City’s failure to perform in accordance with the terms of this Agreement through no fault of Vendor.
7. Changes. By written notice, City may from time to time, make changes to the Services furnished to City by Vendor. If such change causes an increase or decrease in the Agreement Price or in the time required for performance, Vendor or City shall promptly notify the other party thereof and assert its claim for adjustment within fifteen (15) days after the change is ordered, and an equitable adjustment shall be made. However, nothing in this clause shall excuse the Vendor from proceeding immediately with the Agreement as changed.
8. Miscellaneous Terms. Vendor shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City. This Agreement may not be modified or altered except in writing signed by the Parties. There are no intended third party beneficiaries of any right or obligation of the Parties. This is an integrated Agreement representing the entire understanding of the Parties as to those matters contained herein, and supersedes and cancels any prior oral or written understanding or representations with respect to matters covered hereunder. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. The captions of the various paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement. The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the other provisions unenforceable, invalid or illegal. Notice may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to the Parties to the addresses set forth in this Agreement. Vendor is retained as an independent contractor and is not an employee of the City. No employee or agent of Vendor shall become an employee of City. Vendor warrants that the individual who has signed this Agreement has the legal power, right and authority to make this Agreement and bind the Vendor hereto. 24438.00000\33427549.1
Ex. C-1
EXHIBIT “B”
SCOPE OF SERVICES; SCHEDULE OF SERVICES
1. Vendor shall install the murals at the following location:
(a) 109 W Main Street.
2. Prior to starting the Work, design of the murals must be approved by the City (see Attachment A).
3. Vendor will be responsible for preparing and priming the wall at the project location.
4. Vendor shall furnish all equipment, supplies, and materials, necessary for the design, execution, fabrication, transportation, and installation of the mural at the site, and in accordance with the terms in this Agreement.
5. Vendor will be required to obtain necessary permits.
6. City may require the Vendor to make such revisions to the proposed Work as necessary for the Work to comply with applicable statutes, ordinances, or regulations governing the project.
7. Vendor shall complete the fabrication and installation of the Work in substantial conformity with this Agreement.
8. The Vendor is responsible for all property damage during installation.
9. The Vendor shall advise the City in writing when all Work required under this Agreement have been completed in substantial conformity.
10. The City shall notify the Vendor in writing of the final acceptance (or nonacceptance) of the Work.
11. The risk of loss or damage to the Work shall be borne by the Vendor until written notice of final acceptance, and the Vendor shall take such measures as are necessary to protect the Work from loss or damages until final acceptance.
12. The City reserves the right to remove or modify the mural at any time.
13. The City will be responsible for traffic control or street closures that will be required as a result of the mural installation.
24438.00000\33427549.1
Ex. C-2
ATTACHMENT A
APPROVED MURAL DESIGNS