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HomeMy WebLinkAbout13. Approve PSA w-JK Designs Inc for Public Art at Downey Theatre PlazaI I IL -7121 E V APPROVED BY ANAGER O. HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCICITY M FROM: OFFICE OF THE CITY MANAGER BY: ALDO E. SCHINDLER, DIRECTOR OF COMMUNITY DEVELOPMENT DATE: APRIL 23, 2019 SUBJECT: PROFESSIONAL SERVICES AGREEMENT WITH J.K. DESIGNS FOR PUBLIC ART That the City Council approve a Professional Services Agreement to design, fabricate and install public art in the future renovated Downey Theater Plaza with J.K. Designs, Inc. (dba: The National Sculptor's Guild); and authorize the City Manager to execute any and all amendments to the agreement. The Downey City Council adopted the original Art in Public Places Program on November 22, 2005. The goal of Downey's Art in Public Places Program is to provide original artworks that are easily accessible to the general public throughout the City. The Art in Public Places Program is designed to offer a wide range of artistic styles, themes, and media, all of outstanding quality. The unique variety of artistic styles is chosen to provoke discussion and encourage comment. The Art in Public Places Program is dependent on public-private cooperation between the City, artists, and the developer. The Art in Public Places Program also provides the Downey City Council with the flexibility to initiate public art projects on City -owned property, and to provide for faces where public art is displayed. Staff has been working with Council Members of the Theater Subcommittee regarding various art installations for the Theater Plaza area. Recently staff and the Council Members agreed upon the "Tree of Life" design of sculptor Clay Enoch, who is a Fellow at The National Sculptor's Guild, as depicted on Attachment "A". This art piece would be installed in the center of the proposed improvements of the future renovated Downey Theater Plaza. JK Designs' Principal, John Kinkade, founded the National Sculptor's Guild in 1992, with a handful of sculptors who wished to find thoughtful public applications for their work. Representation has since grown to over 40 contracted painters and sculptors on display at their headquarters, the Columbine Gallery, plus an extended network of 200+ artists that their design team works with on a regular basis. When appropriate, the design team grows to include structural engineers, architects, landscape architects, light designers, fountain specialists, designers and contractors specific to each project from around the nation. The National PROFESSIONAL SERVICES AGREEMENT WITH J.K. DESIGNS FOR PUBLIC ART APRIL 23, 2019 PAGE 2 Sculptor's Guild provides a turnkey operation, handling every component of the art process from pre -design to installation. The purpose of the National Sculptor's Guild is to champion a community of artists and to serve as a bridge between these artists and the public. They work with many cities throughout the country, but the proposed "Tree of Life" design is a first for California. The National Sculptor's Guild Fellow, Clay Enoch, who will create the "Tree of Life", participated in the Tennessee Governor's School for the Fine Arts, before earning his Bachelor's of Fine Arts from Wheaton College in Illinois. The total project cost, which includes pre -design, design, fabrication and installation of the "Tree of Life" artwork, is $375,000. The artist services and project timeline are listed within the Professional Services Agreement as Exhibits "A" and "B". Economic Vibrancy Quality of Life, Infrastructure & Parks Public Engagement FISCAL IMPACT The funds for this public art project are currently budgeted in the City's Arts in Public Places budget. The account used for these activities is 40-1-6793-0520. ATTACHMENTS Attachment A — Public Art Rendering Attachment B — Professional Services Agreement with J.K. Designs, Inc. & National Sculptor's Guild CLAY ENOCH REE OF LIFE CAST SILICON BRONZE -I OFT HIGH X 12FT DIAMETER $375,000 ENLARGED FIGURES WILL BE SCULPTED IN LEOTARDS FOR PUBLIC PLACEMENTS IK DESIGNS, INC. = NATIONAL SCULPTORS' GUILD 2683 North Taft Avenue l Loveland, Colorado 80538 1 (970) 667-2015 sales@columbinensg.com I jk-designs-inc..com r AND J.K. DESIGNS, INC. DBA THE NATIONAL SCULPTOR'S GUILD TO DESIGN, FABRICATE AND INSTALL A WORK OF PUBLIC ART This Agreement is made and entered into this day of April, 2019, by and between the CITY OF DOWNEY ("City"), a municipal corporation and charter city located at 11111 Brookshire Avenue, Downey, California, 90241, and J.K. Designs, Inc., a Colorado corporation doing business as The National Sculptor's Guild ("Artist"), located at 2683 North Taft Avenue, Loveland, CO 80538. RECITALS A. City desires to commission a public art project (the "Artwork") which is to be located at Downey Theater Plaza, located at or about 8435 Firestone Blvd, Downey, CA (the "Site"). B. The Community Development Department of City will manage the development of the Artwork in consultation with the Artist, and the City Manager's Department will manage the installation of the Artwork in consultation with the Artist. C. The source of funds for the Artwork derives from funds made available through City's Art in Public Places Program. D. Artist was selected by the City Council following a review and recommendation from the Downtown Downey Subcommittee. In view of the above recitals, the parties agree: SECTION 1., SCOPE OF SERVICES. 1.0 Artist shall perform those services specified in detail and in the location specified in the attached EXHIBIT A, entitled "ARTIST'S SERVICES," and referred to in this Agreement as "Artist's Services." 2.0. GENERAL. Artist is to complete Artist's Services according to the schedule set out in the attached EXHIBIT B, entitled "SCHEDULE OF PERFORMANCE." 2.1 TIME IS OF THE ESSENCE. It is understood that time is of the essence in the performance of Artist's Services under this Agreement. 2.2 FORCE MAJEURE. A. For purposes of this Agreement, the term "Force Majeure" shall mean earthquake, fire, or other casualty, flood, landslide, epidemic, unforeseeable adverse weather, "acts of God," war, civil disturbance, court ordered injunction, intervention by civil or military authorities or government, strikes, lockouts, boycotts, or other labor disputes, to the extent any of the foregoing are beyond the reasonable control of either City or Artist and which cause such party to be delayed or hindered in or prevented from the performance of any covenant or obligation under this Agreement other than the payment of money. B. If either Artist or City is delayed or prevented from the performance of any act required by this Agreement by reason of acts of Force Majeure, performance of such act shall be excused for the period of the delay, and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. r i i • � • � t 3.0. 'COMPENSATION. A. The maximum compensation to be paid to Artist ("Total Price") is set forth in the attached EXHIBIT C, entitled "COMPENSATION." The rate, schedule and method of payment also are set out in EXHIBIT C. Such payment shall constitute full and complete compensation for work performed and services rendered, including, but not limited to, professional services and reimbursable expenses, for all supervision, labor, supplies, materials, equipment or use thereof, taxes, and for all other necessary incidentals. B. In the performance of work to be fabricated and/or installed on the Site, without limitation of any other provision of this Agreement, Artist shall be responsible to pay or cause to be paid, prevailing wages for all work under this Agreement, to the extent prevailing wage is applicable to the work to be fabricated and/or installed on the Site. Artist shall defend, indemnify and hold the City, its elected officials,_ officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the prevailing wage laws. If applicable, Artist shall be registered at with the Department of Industrial Relations under the Public Works Contractor Registration Program for Labor Compliance. 3.1. COST OVERRUN. In the event Artist incurs costs in excess of the maximum compensation set forth in EXHIBIT C Artist shall pay such excess from Artist's own funds. City shall not be required to pay any part of such excess and Artist shall not have any claim against City on account of any cost overruns. 2 3.2. COST SAVINGS, If, after City issues the Notice to Proceed to Artist to proceed with fabrication of the Artwork as set forth in EXHIBIT A, City approves any modification of the Artwork Proposal or the Construction Documents (as defined in EXHIBIT A), which results in cost savings such as, but not limited to, the deletion of an element of the Artwork, the substitution of lesser quality, quantity and/or cost materials with no offsetting upgrade of other materials, or the reduction in the Artwork's size, the cost savings attributable to the modification will not be paid to the Artist. 3.3. CITY'S RIGHT TO WITHHOLD PAYMENT. In the event that City determines that work for which it has been invoiced does not `meet the terms of this Agreement, City may withhold payment to Artist. In the event City withholds any payment, City shall provide detailed written notice to Artist within fifteen (15) days of receipt of Artist's invoice, specifying the failure of performance for which City intends to withhold payment. Within fifteen (95) days of Artist's receipt of City's notice, Artist shall cure City's objection or if City's objections are not capable of cure within fifteen (15) days, Artist shall commence to cure City's objections and then promptly proceed to complete the cure. If Artist disputes City's determination that the Agreement's specifications have not been met, within fifteen (115) days of Artist's receipt of City's notice, Artist shall notify City in writing. In such event, City shall make reasonable efforts to resolve the dispute however, the final determination as to whether Artist has complied with the terms of this Agreement will remain with City. Any payments not in dispute shall be promptly paid to Artist. 3.4. NO WAIVER OF RIGHTS. No payment to Artist for any work performed or services rendered shall constitute a waiver or release by City of any claims, rights or remedies City may have against Artist under this Agreement or by law, nor shall such payment constitute a waiver, remission, or discharge by City of any failure or fault of Artist to satisfactorily perform the work as required under this Agreement. 4.0. ADDITIONAL SERVICE AUTHORIZATION, No services for which additional compensation will be charged shall be provided without prior written amendment to this Agreement signed by an authorized officer of City. 5.0. COMPLIANCE WITH BUDGET CONSTRAINTS. Artist shall be responsible for providing services described in EXHIBIT A including, but not limited to, the quality and timely completion of the services without exceeding the total budget for the Artwork as set forth in EXHIBIT C. Artist shall, 3 without additional compensation, correct or revise any errors, omissions, or other deficiencies in Artist's work. Artist shall be responsible for developing the Artwork Design so that the Artwork can be constructed and installed without exceeding the total fabrication and installation budget of up to THREE HUNDRED SEVENTY-FIVE THOUSAND DOLLARS AND 00/100 ($375,000.00). Any unanticipated overages will be absorbed by the Artist. City shall have no obligation to approve a Contingency Draw to make corrections for which the Artist or Artist's subcontractors are responsible, nor to pay for any costs that Artist could have reasonably avoided. Artist shall, without additional compensation, corrector revise any errors, omissions, or other deficiencies in Artist's work. 5.1. PERSONNEL. Artist has, or will secure at Artist's expense, all personnel required to perform Artist's Services. All persons retained by Artist shall possess the requisite licenses and permits necessary to perform the work. 5.2 COORDINATION. Artist acknowledges that it is an essential element of the Artist's Services to coordinate with City. _Artist agrees to accept responsibility for the coordination with persons designated by City to be necessary to complete Artist's Services. Artist also agrees to meet and communicate with other persons involved with the Artwork as required by City to ensure proper coordination of the Artwork Design. 5.3. TAX IDENTIFICATION NUMBER. No later than the date of Artist's execution of this Agreement, Artist shall provide City with Artist's Tax Identification Number and any proof of Artist's Tax Identification Number as requested by City. SECTION 6. CITY'S RESPONSIBILITIES. 6.0. SITE INFORMATION, City shall be responsible for providing Artist, at no cost to Artist, copies of existing designs, drawings, reports, and other relevant existing data needed by Artist in order to perform Artist's Services. 6.1. SUPERVISION. City is under no obligation to supervise the Artist's performance of services which are described under this Agreement. 6.2. ARTWORK IDENTIFICATION, City will cause and install identification for the completed Artwork, which will include the following information: Artist's name, year in which Artwork is completed, Artwork title, sponsorship partners (if any) and such other information as determined by City. Identification may be in the form of a plaque, brochure, audio identification, or other method that is consistent with identification throughout the remainder of the City property. 4 7.0. ARTIST AS INDEPENDENT_ CONTRACTOR. It is understood and agreed that Artist's relationship with City is strictly and solely that of an independent contractor, and not as an agent or an employee of City; and as an independent contractor, Artist shall obtain no rights to retirement benefits or other benefits which accrue to City's employees, and Artist hereby expressly waives any claim Artist may have to any such rights. Artist further agrees to acknowledge and accept sole responsibility for determining the method and means by which Artist will fulfill Artist's obligations under this Agreement. Nothing contained in this Agreement shall be construed to place City and Artist in the relationship of partners. Artist acknowledges and agrees that Artist shall not hold him, her or itself out as an authorized agent of City with power to bind in any manner. 8.0. ASSIGNABILITY OF CONTRACT. The parties agree that the expertise and experience of Artist are material considerations for this Agreement. Except as may be specifically authorized under this Agreement, Artist shall not assign or transfer any interest in this Agreement nor the performance of any of Artist's obligations hereunder, and any attempt by Artist to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect unless prior written consent is given by City. However, nothing in this section shall be deemed to prevent Artist, at Artist's sole expense, from relying on or utilizing the services of such other Artist or contractor as Artist may require to complete the Artist's Services. 8.1..CITY'S RIGHT TO ASSIGN CONTRACT. City shall have the right to assign or transfer any and all of City's rights and obligations under this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of City. SECTION 9. INDEMNIFICATION BY ARTIST. 9.0. INDEMNIFICATION. Artist agrees to protect, defend, indemnify and hold harmless City and its officers, agents and employees, from and against all claims, costs and damages (collectively, "Liabilities") arising out of negligent or willful acts or omissions in the performance of this Agreement by Artist, or the Artist's agents or Artist's subcontractors. Artist's obligations to indemnify and hold City harmless under this subsection exclude only those Liabilities, which are due to sole negligence or willful misconduct of City its officers, agents and employees. 5 9.1. INFRINGEMENT. Artist also agrees to protect, defend, indemnify and hold City, its officers, agents and employees harmless from any action, claim, suitor liability based on a claim that work performed under this Agreement by Artist, or Artist's agents or Artist's subcontractors constitutes an infringement of any patent, copyright, trademark, trade name or other proprietary right of any party. This section shall survive expiration or sooner termination under this Agreement. SECTION 10. INSURANCE REQUIREMENTS. 10.0. INSURANCE. Artist, at Artist's sole cost and expense for the fullterm of this Agreement or any renewal thereof, agrees to maintain the policies set forth in the attached EXHIBIT D, entitled "INSURANCE REQUIREMENTS." All policies, endorsements, certificates and/or binders shall be subject to the approval by the Risk Manager of the City as to form and content. These requirements are subject to amendments or waiver if so approved in writing by the Risk Manager. Artist agrees to provide City copies of said policies, certificates and/or endorsements before work commences under this Agreement. r SECTION 12. TERMINATION. 12.0. TERMINATION WITHOUT CAUSE. City may terminate this Agreement without cause upon thirty (30) days written notice to Artist. Termination shall be effective thirty (30) days after Artist's receipt of City's termination notice. 12.1. TERMINATION WITH CAUSE. If Artist fails to perform any of Artist's material obligations under this Agreement, City may terminate this Agreement upon fifteen (15) days written notice to Artist ("Termination Notice"). The Termination Notice must specify Artist's breach and provide Artist with an opportunity to cure the specified breach within the fifteen (15) day notice period. In the event that Artist fails to cure the specified breach within the fifteen (15) day notice period, the termination of this Agreement will be effective. In instances where the specified breach is incapable of being cured within fifteen (15) days, Artist shall commence to cure the specified breach within the fifteen (15) day notice period and diligently execute the work necessary to complete the cure. 12.2 COMPENSATION. In the event that City terminates this Agreement, City shall pay Artist for services performed and contractual commitments made by Artist, and previously approved by City, with vendors and subcontractors pursuant to this Agreement that cannot be canceled, in a manner M. consistent with this Agreement and in manner reasonably satisfactory to City to date of termination, consistent with the schedule of payment set forth in EXHIBIT C. 12.3 REMEDIES, City's remedies under this Agreement are cumulative and are in addition to City's rights available at law or in equity. 12.4 WAIVER. The parties agree that waiver of any breach or violation of any term or condition of this Agreement shall not be deemed to be a waiver of any other term or condition contained herein or a waiver of any subsequent breach or violation of the same or any other term or condition. 13.0. COMPLIANCE, Artist shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local governments. SECTION 14. NONDISCRIMINATION. 14.0.NONDISCRIMINATION. Artist shall not discriminate, in way, against any person on the basis of race, sex, color, age, religion, sexual orientation, actual or perceived gender identity, disability, ethnicity, or national origin, in connection with or related to the performance of this Agreement. SECTION 15. ARTIST'S WARRANTY. 15.0. Artist represents and warrants that`. A. Prior to transfer of title of the Artwork to the City, Artist is the sole and absolute owner of the Artwork and the Artwork Design, and the copyrights pertaining to the Artwork, and all the rights associated or relating to it. B. Artist has not previously sold, assigned, licensed, granted, encumbered, or utilized the Artwork Design or any element thereof, in manner which may affect or impair the rights granted pursuant to this Agreement including without limited to, inhibiting the City's ability to show the work, reproduce the Artwork as defined in Section 16, or maintain/conserve the work into the future. C. All Artwork created or performed by Artist under this Agreement, whether created by Artist alone or in collaboration with others, shall be wholly original with Artist and shall not infringe upon or violate the rights of any third party. D. Artist has acquired all rights to any third party software or other component of the Artwork necessary for the operation of Artwork. 7 E. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement. F. All services performed hereundershall be performed in accordance with EXHIBIT A with all necessary care, skill, and diligence. G. Artist warrants that the Artwork is the result of the artistic efforts of Artist and that it will be delivered full and clear of any liens, claims and encumbrances of any type. H. These representations and warranties shall survive the termination or other extinction of this Agreement. 15.1 Artist warrants that the design of the Artwork is an edition of one, and that neither Artist nor Artist's agent will execute or authorize another to execute another work of the same or substantially similar image, design, dimensions and materials as the Artwork. Nothing however, shall prevent Artist from making future works in his or her style and manner of expression. This warranty shall continue in effect for the duration of the Artwork's copyright protected status and shall be binding on Artist and Artist's heirs and assigns. In thecasewhere Artist is comprised of two or more individual persons or a group of people, the measuring life shall be the life of the last surviving individual person comprising Artist team. Recognizing that City has no adequate remedy at law for Artist's violation of this warranty, Artist agrees that, in the event Artist breaches this warranty, City shall be entitled to enjoin Artist's breach. PUBLICITY RIGHTS. 16.0 COPYRIGHT. A. Except as provided in this Agreement, Artist shall retain all copyrights in the Artwork. Artist's copyright shall not extend to predominantly functional aspects of the building or Site that may be incorporated into Artwork or which are in the area of the Artwork, such as the flooring, walls and other fixtures and features of the Site, furnishings, or other similar objects located at the Site. If Artist is comprised of two or more individual persons, the individual persons shall be deemed joint authors of the Artwork. B. Based on mutual agreement between Artist and City, Artist may, place a copyright notice on the Artwork in the form and manner required to protect copyrights in the Artwork under United States copyright law. Placement details including size, location and method of attachment to be determined based on mutual agreement between the City and the Artist. If the copyright is registered with the 0 U.S. Copyright Office, Artist shall provide City with a copy of the application for registration, the registration number and the effective date of registration. 16.1. DISPLAY/DISPOSAL. Artist grants City the following exclusive rights: A. City shall have therightto display the Artwork and to loan the Artwork to others for the purpose of public display. B. City shall have the right to move, remove, relocate or dispose of the Artwork as specified below in Section 20. 16.2 DISCLOSURE AND ASSIGNMENT OF INNOVATIONS. A. Innovations; Citi Innovations. "Innovations" includes processes, machines, compositions of matter, improvements, inventions (whether or not protectable under patent laws), works of authorship, information fixed in any tangible medium of expression (whether or not protectable under copyright laws), moral rights, mask works, trademarks, trade names, trade dress, trade secrets, know-how, ideas (whether or not protectable under trade secret laws), and all other subject matter protectable under patent, copyright, moral right, mask work, trademark, trade secret or other laws, and includes without limitation all new or useful art,combinations, discoveries, formulae, manufacturing techniques, technical developments, discoveries, artwork, software, and designs. "City Innovations" are Innovations that Artist, solely or jointly with others, conceives,, reduces to practice, creates, derives, develops or makes within the scope of Artist's work for City under this Agreement. B. Disclosure and Ownership of City Innovations. Artist agrees to make and maintain adequate and current records of all City Innovations, which records shall be and remain the property of Artist. Artist agrees to promptly disclose to City every City Innovation. Artist hereby does and will assign to City or City's designee Artist's entire worldwide right, title and interest in and to all City Innovations and all associated records and intellectual property rights. C. Assistance. Artist agrees to execute upon City's request a signed transfer of City Innovations to City in the form set forth in EXHIBIT E at the time this Agreement is executed by Artist for each of the City Innovations, including, but not limited to, computer programs, notes, sketches, drawings and reports. Artist agrees to assist City in any reasonable manner to obtain, perfect and enforce, for City's benefit, City's rights, title and interest in any and all countries, in and to all patents, copyrights, moral rights, mask works, trade secrets, and other property rights in each of the City Innovations. Artist agrees to execute, when requested, for each of the City Innovations (including derivative works, improvements, renewals, extensions, continuations, divisionals, continuations in part, or continuing patent applications thereof), (i) patent, copyright, mask work or similar applications related to such City Innovation, (ii) documentation (including without limitation assignments) to permit City to obtain, perfect and enforce City's right, title and interest in and to such City Innovation, and (iii) any other lawful documents deemed necessary by City to carry out the purpose of this Agreement. If called upon to render assistance under this paragraph, City will be entitled to a fair and reasonable fee in addition to reimbursement of authorized expenses incurred at the prior written 0 request of City. In the event that City is unable for any reason to secure Artist's signature to any document Artist is required to execute under this Paragraph ("Assistance"), Artist hereby irrevocably designates and appoints City and City's duly authorized officers and agents as Artist's agents and attorneys -in -fact to act for and in Artist's behalf and instead of Artist, to execute such document with the same legal force and effect as if executed by Artist. D. Public Records Requests. Any documents provided by Artist to City are public records and City may authorize third parties to review and reproduce such documents pursuant to public records laws and policies, including the California Public Records Act. 16.3 THIRD PARTY INFRINGEMENT. City is not responsible for any third party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist or its contractors/subcontractors. SECTION 17. VARIABLE MEDIA ARTWORK GUIDELINES AND ADDITIONAL WARRANTIES 17.0 APPLICABILITY. The provisions of this Section 17 apply if the Artwork involves or incorporates electronic, digital, video, mechanical, living, variable, moving or other dynamic components ("Variable Media Component") and shall be in addition toandwithout limitation of, any warranties, rights otherwise provided to City by Artist herein. 17.1 VARIABLE MEDIA GUIDELINES._ Artist shall also provide the City with written recommendations for translating the Artwork into new media or replacing elements of the Artwork in the event that the original medium, components and/or the Artists' installation plan become obsolete during the life of the Artwork ("Variable Media Guidelines"). Although the City is not required to comply with such Variable Media Guidelines, the City may take such Guidelines into account when maintaining the Artwork or trying to preserve the integrity of the Artwork. 17.2 WARRANTY AGAINST INFRINGEMENT. Artist warrants that the Artwork, including without limitation, any software included to operate or display the Artwork, does not violate or infringe upon any patent, copyright, trade secret, or other proprietary rights of any other person or entity. Artist agrees to hold the City harmless from any liability and to defend and indemnify the City, at Artist's sole expense, in the event that a claim is filed or a suit is brought against City or any of its officers, employees, or authorized agents, for the use or display of the Artwork due to a patent or copyright infringement. Artist further agrees that if the Artwork or any component thereof is found to be infringing while on display. Artist shall promptly: A. Modify the Artwork, at Artist's expense, so that it becomes non -infringing, or 10 B. Replace the infringing element of the Artwork including without limitation software, with equal non -infringing items, at Artist's expense, or C. Procure, at Artist's expense, the necessary licenses for the City to continue using and displaying the Artwork. 17.3 WARRANTY OF ACCEPTABLE STANDARD OF DISPLAY AND OPERATION FOR VARIABLE MEDIA COMPONENTS. Artist represents and warrants that during the warranty period set forth in Section 21, the Artwork will conform with the design specifications approved by City and, where Artwork involves Variable Media Components, the Artwork will also operate, function or perform in accordance with Artist's representations to the City without any costs beyond the final Budget for the Artwork or any additional staff assistance beyond what has specifically been agreed to by City in the approved specifications, - and including reasonable costs for electrical power for the Artwork. 17.4 THIRD PARTY WARRANTIES AND LICENSES. Artist shall procure, on City's behalf, all licenses and maintenance agreements from third party software developers or providers used in the Artwork and referred to as "Third Party Software" and required to operate or display the Artwork, in a form transferable to City and acceptable to City. Artist shall transfer the license and maintenance agreements for the Third Party Software to City upon City's acceptance of the Artwork. Artist shall obtain from all suppliers of the equipment and the Third Party Software used to design, fabricate and install the Artwork, all standard guarantees and warranties normally provided on all machinery, equipment, services, materials, supplies and other items used in connection with the Artwork,_ including all such machinery, equipment, materials and other items which are incorporated into the Artwork. Artist shall obtain from each such supplier guarantees and warranties which are assignable to City and shall, upon request of City, obtain an option for City to purchase a guarantee or warranty from such suppliers covering a longer period than a one year warranty period if commercially available at City's expense. Artist shall enforce all guarantees and warranties until such time as such guarantees or warranties expire or are, if applicable, transferred to City as contemplated by this Section. Such guarantees and warranties shall, to the extent they have been made assignable, be transferred to City upon acceptance of the Artwork. Artist shall deliver to City copies of all such guarantees and warranties and relevant extracts from all related technical specifications. Nothing in this Section shall reduce the obligation of Artist to provide the City with the guarantees and warranties described in this Agreement, and to comply with the provisions of this Agreement. 11 18.0. MAINTENANCE OF RECORDS. Artist shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to City fora minimum period of three (3) years, or for any longer period required by Jaw, from the date of final payment to Artist pursuant to this Agreement. Artist shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years, or for any longer period required by law, from the date of termination or completion of this Agreement. 18.1. AUDIT. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Finance Director, City Manager, or a designated representative of any of these officers. Copies of such documents shall be provided to City for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Artist's address indicated for receipt of notices in this Agreement. 18.2. CUSTODY OF RECORDS. Where City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Artist's business, City may, by written request by any of the above-named officers, require that custody of the records be given to City and that the records and documents be maintained in City Hall Access to such records and documents shall be granted to any party authorized by Artist's, Artist's representatives, or Artist's successors -in -interest. SECTION 19. ARTIST'S WAIVERS, A. Without limitation of any other provision hereof, Artist expressly agrees to waive any and all rights Artist may have pursuant to title 17 U.S.C. Section 106A, (commonly known as the "Visual Artists Rights Act of 1990") as Artist's rights under Act apply, if at all, to the following uses of Artwork: (i). City shall have the right to reproduce Artwork as provided in this Agreement. (ii). City shall have the right to move, relocate or remove Artwork from the intended location and to store or dispose of Artwork as City deems appropriate. (iii). City shall have the right to loan the Artwork as City deems appropriate as further provided in Section 16.1 above, and in Section 20.2 below. B. Artist further agrees that to the extent California Civil Code Section 987 has force or effect with respect to Artist's rights to the Artwork, Artist expressly waives such rights. • �> •k Lr r 12 20.0. 'COMMITMENT ITMENT B " CITY. City agrees that unless Artist requests to the contrary in writing, all references to the Artwork and all reproductions of the Artwork will credit the Artwork to Artist. 20.1. ARTIST'S COMMITMENT. Artist agrees that all formal references to the Artwork made or authorized to be made by Artist shall include the following credit "Collection of the City of Downey Public Art Program," or other language agreed to by all parties. 20.2. FUTURE MODIFICATION OR RELOCATION. A. City has the right to remove the Artwork from the Site at any time. In addition, in the event that any element of the Artwork constitutes a public safety hazard, City has the right to remove the elementposing the public safety hazard. B. Except to the extent permitted by subsection A above, City agrees not to intentionally modify the Artwork without first obtaining Artist's written consent. C. City shall have the right to donate or sell the Artwork at anytime. Before exercising this right, City, by written notice to Artist at Artist's last known address, agrees to give Artist the opportunity to purchase the Artwork for the greater of the Total Price or the amount of any offer which City has received for the purchase of the Artwork, plus all costs associated with the removal of the Artwork from the Site, clean-up of the Site and delivery to Artist. Artist shall have thirty (30) days from the date of City's notice to exercise the option to purchase the Artwork. D. If City moves the Artwork from its originally installed location without Artist's oversight, Artist shall not be held responsible for the structural integrity or safety of the Artwork to the extent that City's action impaired the structural integrity or safety of the Artwork, nor shall Artist be held responsible for code compliance of the Artwork to the extent that City's action rendered the Artwork non-compliant with applicable codes. E. Artist's rights under this Agreement cease with Artist's death and do not extend to Artist's heirs, successors or assigns. SECTION 21. DEFECTS IN MATERIAL, ORK ANSHIP AND INHERENT VICE. 21.0. Artist warrants that the Artwork and workmanship will be free of defects in workmanship, including Inherent Vice, and that the Artist will, at the Artist's own expense, remedy any defects due to faulty workmanship, or Inherent Vice,which appear within a period of three years from the date the Artwork is formally accepted. if"the Artwork should deteriorate because of Inherent Vice within three years from the date the Artwork is formally accepted, Artist will repair or replace the Artwork without charge for Artist's services in supervising the work of others or for repairing the work that they 13 originally performed on the Artwork and Artist will pay for the cost of labor rendered by persons other than the Artist, materials and supplies. The term"Inherent Vice" means any quality within the material or materials incorporated into the Artwork which, either alone or in combination, results in the deterioration of the Artwork. Inherent Vice does not include any potential for deterioration that is specifically identified in the Final Proposal. 21.1. NO THREAT. Artist further warrants that the Artwork shall not constitute any threat to the safety of persons or property when used in the manner for which it is designed. Artist agrees to cooperate with City in making or permitting adjustments to the Artwork if necessary to eliminate hazards which become apparent after the Artwork is accepted by City. 21.2. SURVIVAL. These representations and warranties shall survive the termination or other extinction of this Agreement. SECTION 22. MAINTENANCE 22.0. REPAIRS AND RESTORATION. City shall have the right to determine, after consultation with a professional conservator, when and if repairs and restorations to the Artwork will be made. It is the policy of City to consult with Artist regarding repairs and restoration which are undertaken during Artist's lifetime when that is practicable. In the event that City makes repairs or restoration not approved by Artist, Artist shall have the right, at Artist's sole option, to"have Artist's association with Artwork severed. 22.1. STANDARDS OF REPAIR AND RESTORATION. All repairs and restorations, whether performed by Artist, City,- or by third parties responsible to Artist or City, shall be made in accordance with professionally recognized principles of conservation of artworks and in accordance with the maintenance instructions provided to City by Artist pursuant to EXHIBIT A. 23.0. Artist shall avoid all conflict of interest or appearance of conflict of interest in performance of this Agreement. SECTION 24. GIFTS. 24.0. Artist agrees not to offer any City officer, official, employee any gift prohibited by the City's conflict of interest code and State law. The offer or giving of any gift shall constitute a material breach of this Agreement by Artist. In addition to any other remedies City may have in law or equity, City may terminate this Agreement for such breach as provided in Section 12 of this Agreement. 14 25.0. Artist agrees that waiver by City of any breach or violation of any term or condition of this Agreement shall not be deemed to be a waiver of any other term or condition contained herein or a waiver of any subsequent breach or violation of the same or any other term or condition. The acceptance by City of the performance of any work or services by Artist shall not be deemed to be a waiver of any term or condition of this Agreement. SECTION 26. SPECIAL PROVISIONS. 26.0. Special provisions, if any, to this Agreement are specified in the attached EXHIBIT E, entitled,"SPECIAL PROVISIONS." 27.0. Submittals, requests, notices and reports (collectively "Notices") required under this Agreement shall be delivered personally or through the mail, postage prepaid, to the addresses stated below, or to any other address as may be noticed by a party. Notices may also be sent by facsimile to the facsimile numbers set forth below. M0 Clay Enoch National Sculptor's Guild 2683 North Taft Avenue Loveland, CO 80538 970-290-0425. City of Downey 11111 Brookshire Avenue Downey, California 90241 Phone: (562) 904-7286 Attn: City Manager City of Downey City Attorney's Office 11111 Brookshire Avenue Downey, California 90241 Notices will be deemed effective on the date personally delivered, emailed or sent by courier service. Notices which are mailed will be deemed effective three (3) days after deposit in the mail. 15 27.1 Artist agrees for the duration of Artist's life to provide City with Artist's current mailing address and facsimile number in the event Artist's address or facsimile number, as specified above, should change. If Artist fails to provide City with timely updates on changes to Artist's contact information, Artist shall be considered to have waived Artist's right to notice under this Agreement 28.0. VENUE. In the event that suit shall be brought by either party to this contract, the parties agree that venue shall be exclusively vested in the state court of the County of Santa Clara or if federal jurisdiction is appropriate, exclusively in a United States District Court for the Northern District of California, San Jose, California. 28.1. GOVERNING LAW. The laws of the State of California shall govern this Agreement. Except to the extent that federal law is applicable, this Agreement must be construed - and its performance enforced - under California law. 29.0 The captions of the sections or paragraphs of this Agreement are for convenience only. They shall not be used in construction of this Agreement. SECTION 30. PRIOR AGREEMENTS AND AMENDMENTS. - 30.0. ENTIRE AGREEMENT. This Agreement, including all of its attachments, represents the entire understanding of the parties as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This Agreement may only be modified by a written amendment duly executed by the parties to this Agreement. SECTION 31. SEVERABILITY. 31.0. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants; conditions or provisions of this -Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 16 SECTION 32. REFERENCE TO CITY., 32.0. Where this Agreement requires or permits City to act and no officer of the City is specified, City's Manager or the authorized representative of City's Manager shall be deemed authorized to act of City's behalf. SECTION 33. NO RELIGIOUS OR POLITICAL ADVOCACY. 33.0 Artist agrees that no work or services funded by this Agreement shall inhibit or promot religion and furthermore that the work or services funded by this Agreement must not be used to convey a religious message. Any portion of the compensation used in contradiction to the provisiohll� WITNESS THE EXECUTION HEREOF on the day and year first herein above written. CITY OF DOWNEY, a California municipal corporation and charter city By Rick Rodriguez, Mayor Attest. 11111RAMPEPRIP.011P.11 M-kTAMM MIN APPROVED AS =TO A Y�le M. Abich Garcia, City Attorney tNr%�11r6% �61 �Mml W%T =113. 7f 1 jL 11 L I dba National Sculptor's Guild B Afyson Kinkade, ftsFde nt 17 EXHIBIT A to Artist shall perform the following services to the satisfaction of City and within the deadline set forth in EXHIBIT B. Part 1. SITE SELECTION. The site has been selected by the City, the "Downey Theater Plaza", located at or about 8435 Firestone Blvd, Downey, CA. The Artist agrees to work with the City in the development of the site plan and the engineering and design of the infinity fountain. Part 2. Concept Design • Please see attached photos Part 3. Approval of Clay Figures • The Artist shall submit photographs of the completed clay figures of the art piece to the City for approval. The City may visit the Artist's studio at anytime during the creation of the clay figures. Part 4. Approval of the Fountain Design The City and Artist shall review and approve the fountain design and the structural engineering. Part 5. Fabrication The Artist shall fabricate the art piece of museum quality bronze and stainless-steel sculpture. Part 6. Installation and Completion The Artist and the City shall coordinate the installation of the sculpture and the Artist shall install the sculpture. 18 EXHIBIT B SCHEDULE OF PERFORMANCE TIMELINE TASK May 1, 2019 to May 15, 2019 Completion of Structural Engineering Drawings and submittal of Proof of Insurance May 1, 2019 to August 1, 2019 Creation of the life size figures in clay August 1, 2019 to September 1, 2019 Molds created from clay figures September 1, 2019 to April 1, 2020 Casting of figures in bronze, fabrication of the stainless-steel rings, and fabrication of the complete sculpture April 1, 2020 to April 30, 2020 Shipping and installation of the sculpture 19 EXHIBIT C 5011 1. Fee. Artist's fee for Artwork Design, Fabrication and Installation, including all expenses relating thereto, shall not exceed the sum of THREE HUNDRED SEVENTY-FIVE THOUSAND DOLLARS AND 00/100 ($375,000). 2. Interim I a ments City agrees to pay Artist in installments as set forth in the schedule below and in accordance with the terms of Section 3 of this Agreement. • One-half (50%) One Hundred Eighty -Seven Thousand Five Hundred Dollars 00/100 ($1$7,500.00) upon execution of the contract. • On or before May 1, 2019, Thirty -Seven Thousand Five Hundred Dollars 00/100 ($37,500.00) On or before August 1, 2019, Thirty -Seven Thousand Five Hundred Dollars 00/100 ($37,500.00) On or before November 1, 2019, Thirty -Seven Thousand Five Hundred Dollars 00/100 ($37,500.00) On or before February 1, 2020, Thirty -Seven Thousand Five Hundred Dollars 00/100 ($37,500:00) Upon installation anticipated to be no later than April 30, 2020, Thirty -Seven Thousand Five Hundred Dollars 00/100 ($37,500.00). 4. Fabrication and Installation, Payment Schedule for Artwork. City shall pay Artist for the costs and expenses identified in the Artwork Budget as developed per EXHIBIT C. Artist shall submit invoices for the costs and expenses outlined in the Budget and shall also submit documentation required regarding payment of prevailing wages, if any ("Documentation Provision"). The City may make incremental payments of budget line items to facilitate fabrication and installation, at the discretion of the City's Director of Community Development. The form of the invoice shall be subject to the approval of the City's Art Project Manager. Artist may adjust the line items within the Fabrication and Installation budget with the prior written approval of City's Art Project Manager, which approval will not be unreasonably withheld. 5. eimbursables: City will not make any additional payment for Artist's expenses. 6. In the event that the City determines that work for which it has received a request for payment does not meet specifications required under this Agreement, City in its sole discretion shall have the right to withhold such payment until such deficiency has been corrected. In such event, City shall provide detailed written notice to Artist within ten (10) days of receipt of such request for payment, specifying the failure of performance for which City intends to withhold payment. Artist shall work to cure such failure of performance in order to meet the Agreement standards to the satisfaction of City. 7. Notwithstanding the foregoing, Artist expressly acknowledges that approval of work to permit an interim payment is solely for the benefit of Artist. Unless and until the City issues a Notice of Acceptance for the Artwork, no interim approval shall constitute acceptance or approval of the Artwork by City nor shall it be construed as a waiver of City's right to require that the Artwork conform strictly to the Final Proposal and to the Plans. 8. Pursuant to California Revenue and Taxation Code Section 6365, the City's payment for the Artwork is exempt from sales taxes imposed under the California Revenue and Taxation Code. 20 9. The parties agree that the Schedule for Payment set forth above may be modified only upon prior written authorization of City's Director of Community Development. 21 10 Rill V-11 0 MKIM4 1._ Time for Compliance. Artist shall not commence the Services or the Project under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Artist shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience with insurer, coverage or other special circumstances. Tl. Minimum Reguirements. Artist shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement, the Services or the Project by the Artist, its agents, representatives, employees or subcontractors. Artist shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. (1) Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis including products and completed operations, property damage, bodily injury and personal and advertising injury; (2) Automobile Liability: Insurance Services Office Form Number CA 0001 covering Code 1 (any auto) or if Artist owns no autos, Code 8 (hired) and 9 (non -owned); and (3) Workers' Compensation: Workers' Compensation insurance as required by the State of California with Statutory Limits; and (4) Employer's Liability Insurance. (B) Minimum Limits of Insurance. Artist shall maintain limits no less than: (1) Commercial General Liability (CGL): No less than $2,000,000 per occurrence for products and completed operations, bodily injury, property damage and personal and advertising injury. If Commercial General Liability Insurance or other form with general aggregate limit applies, either the general aggregate limit shall apply separately to this Agreement/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: No less than $2,000,000 per accident for bodily injury and property damage; and (3) Workers' Compensation: Workers' Compensation limits as required by the Labor Code of the State of California with Statutory Limits; (4) Employer's Liability: Employer's Liability limits of no less than $2,000,000 per accident for bodily injury or disease. Employer's Liability coverage may be waived by the City if City receives written verification that Artist has no employees. If the Artist maintains broader coverage and/or higher limits than the minimumshownin this subdivision 3.2.102, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Artist. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. (D) Professional Liability (Errors & Omissignsj. Artist shall procure and maintain, and require its sub -Artists to procure and maintain, for aperiod of five (5) years following completion of the Services or the Project, errors and omissions liability insurance appropriate to its profession. Such insurance shall be in an amount not less than $2,000,000 per occurrence or claim and $2,000,000 in the aggregate, and shall be endorsed to include contractual liability. If the Artist maintains broader coverage and/or higher limits than the minimum, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Artist. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. If an engineer or architect is required to complete the Artist's design documents, the Artist must provide the City with a copy of the engineer's or architect's Professional Liability Errors and Omissions insurance endorsement. 22 III. Insurance Endorsements. The insurance policies shall contain the following provisions, or Artist shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies: (A) Additional Insured Status. The Commercial General Liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to liability arising from the work, Services, Project or operations performed by or on behalf of the Artist, including materials, parts or equipment furnished in connection with such work, Services._ Project or operations; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Artist's scheduled underlying coverage. Commercial General Liability insurance coverage may be provided in the form of an endorsement to the Artist's insurance (at lease as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33 or CG 2038; and CG 20 37 forms if later revisions are used). (B) Waiver of Subrogation. Artist hereby grants to City a waiver of any right to subrogation which any insurer of said Artist may acquire against the City by virtue of the payment of any loss under said insurance policies set forth herein. Artist agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. (C) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except with written notice by certified mail, return receipt requested to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers. IV. Primary Coverage. For any claims related to this Agreement, the Artist's insurance coverage shall be primary insurance and primary coverage at least as broad as ISO CG 20 01 04 13 with respect to the City, its directors, officials, officers, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Artist's insurance and shall not be called upon to contribute with it in any way. V. Separation, of Insureds, No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors officials, officers, employees, agents and volunteers. VI. Deductibles and Self -Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. City may require Artist to provide proof of ability to pay lossesand related investigations, claim administration and defense expenses and costs within the retention. The policy language shall provide or be endorsed to provide that the self-insured retention may be satisfied by either the named insured or City. VII. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VII, authorized to do business in California, and satisfactory to the City. VIII. Verification of Coverage. Artist shall furnish City with original certificates of insurance, including all required amendatory endorsements (or copies of the applicable policy language effective coverage required by this provision) and a copy of the Declarations and Endorsement Page of the Commercial General Liability policy listing all policy endorsements to the City before the commencement of work under this Agreement. However, failure to obtain the required documents prior to the commencement of work under this Agreement 23 shall not waive the Artist's obligation to provide them to the City. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, at any time. XI. Claims -Made policies, If any of the policies provide coverage on a claims -made basis: (A) The retroactive date must be shown and must be before the date of this Agreement or the date work commences under this Agreement, whichever is earliest; (B) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Services provided under this Agreement; (C) If coverage is canceled, non -renewed, and not replaced with another claims -made policy form with a retroactive date prior to the effective date of this Agreement or the date work commences under this Agreement, whichever is earliest, the Artist must purchase extended reporting coverage for a minimum of five (5) years after completion of the Services under this Agreement. X. Safety. Artist shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Artist shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life- saving equipment and procedures;_ (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 24 FORM ASSIGNMENT WHEREAS, the undersigned, authors of the creative work, USA (referred to hereinafter as "ASSIGNORS") have created an original work of authorship entitled " for which together with related creative works hereinafter as the COPYRIGHT; WHEREAS a having its principal place of business at (referred to hereinafter as "ASSIGNEE"), is desirous of acquiring all entire right, title and interest in, to and under said COPYRIGHT, and in, to and under any common law or registration of Copyrights or similar legal protection to be or having been obtained therefor in the United States of America, its territorial possessions and in any and all countries foreign thereto; and NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, ASSIGNORS hereby sell, assign, transfer and set over unto the ASSIGNEE, its successors and assigns the entire title, right and interest in and to the COPYRIGHT, and to all common law or similar legal protection arising therefrom, not only in the United States and its territorial possessions, but in all countries foreign thereto to be obtained for said COPYRIGHT by said legal protection thereof or any legal equivalent thereof in a foreign country for the full term or terms for which the same may be granted, including all priority rights under any International Convention. ASSIGNORS further covenant that no assignment, sale, agreement or encumbrance has been or will be made or entered into which would conflict with this assignment; and ASSIGNORS further covenant that ASSIGNEE will, upon its request, be provided promptly with all pertinent facts and documents relating to said COPYRIGHT, and will testify as to the same in any litigation related thereto and will promptly execute and deliver to ASSIGNEE or its legal representatives any and all papers, instruments or affidavits required to apply for, obtain, maintain, issue and enforce said invention and said Copyrights and said equivalents thereof in any foreign country which may be necessary or desirable to carry out the purposes thereof. ASSIGNORS and ASSIGNEE each covenant to perform all acts and execute and deliver all documents as may be necessary or appropriate to carry out the intent and purposes of this assignment. This assignment embodies the entire understanding of ASSIGNORS and ASSIGNEE and supersedes and replaces any and all pre-existing assignments or understandings between ASSIGNORS and ASSIGNEE. No amendment or modification of this assignment shall be valid or binding upon ASSIGNORS or ASSIGNEE unless made in writing and signed on behalf of each of ASSIGNORS and ASSIGNEE by their respective duly authorized representative. WITNESS my hand at , , this _ day of 2019, City State Month WITNESS my hand at ,- , this _ day of 2019, City State Month 25 Title Copyright No. Cop ri ht Date m