HomeMy WebLinkAbout10. Approve PSA's w-Lindsay Yost & Preferred Impressions, Inc-Design, Fabricate & Install Public Art at Furman Parky
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FROM -OFFICE OF '
r• E. SCHINDLER,DIRECTOR OF • DEVELOPMENT
PROFESSIONAL i DESIGN, FABRICATE AND
INSTALL PUBLIC ART AT FURMAN PARK
That the City Council approve Professional Services Agreements to design, fabricate and install
public art at Furman Park located at 10419 Rives Avenue, with Lindsay Yost and Preferred
Impressions, Inc.; and authorize the City Manager to execute any and all amendments to the
agreement.
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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 facilities where public art is displayed.
Staff has been working with Council Members of the Theater Subcommittee and Downtown
Subcommittee regarding various art installations for the Theater Plaza and Downtown area.
The subject public art piece was initially slated for the southwest corner of Downey Avenue and
Second Street. After further discussion it was decided that the public art piece would better
compliment the future improvements at Furman Park. The Council Members desired to work
with local artists and agreed upon the "Dreams of Tomorrow" design from artist Lindsay Yost
and designer Chris Tassos, owner of Preferred Impressions, Inc., as depicted on Attachment
'A,
Through a collaborative effort, the public art piece will be designed and fabricated by the two
separate parties, and then installed incrementally creating a complete and complimentary art
piece. Mrs. Yost will design, and install a tile mosaic. The artwork will be applied to the
PROFESSIONAL SERVICES AGREEMENTS TO DESIGN, FABRICATE
AND INSTALL PUBLIC ART IN FURMAN PARK
MAY 28, 2019
PAGE 2
concrete base which will subsequently support an aluminum rocket replica, a separate, but
adjoining art piece being created at the same site by Preferred Impressions, Inc. The artwork
will be applied to the concrete base after the base has been poured and cured. The concrete
base will be installed by the City of Downey's Public Works Department, in partnership with
Preferred Impressions, Inc.
When conducting research for this art piece, Mrs. Yost took into account Downey's history
within the state of California, choosing to focus on the city's deep roots in the aerospace
industry. She chose a design that would be reminiscent of that time period with the color and
design that was popular then and continues to be timeless now. When designing this piece,
Mrs. Yost wanted it to have a youthful feel due to the nature of the rocket ship that will adorn to
top of the concrete base. She took classic shapes from mid-century design and architecture,
and then added pops of color to ensure that this piece would appeal to local residents, young
and old. Mrs. Yost wanted this design to bring back happy memories to anyone that remembers
playing at a park playground as a child.
Preferred Impressions, Inc. will design, fabricate, and install an aluminumrocket with concrete
base. The rocket will be 12 feet tall. At its widest point (tip of rocket fin to tip of opposing rocket
fin) it will measure 5 feet. The completed public art piece will reach a total height of 14 feet tall
from the floor to the tip of the nose cone of the rocket. The rocket color will consist of the being
a natural aluminum with an orbital sanded finish. The color of nose cone and fins will be
anodized orange.
Both the artist and designer have strong bonds to Downey. Lindsay Yost is a lifelong Downey
resident, has been creating mosaics since 2008, and continues to hone her artistic style, which
is inspired by the Pop Art movement and the work of her grandmother, renowned sculptor and
ceramist, Bonnie Jean Malcolm. She attended Warren High School and Long Beach City
College, where her talents were enhanced by studies in ceramics and photography. Throughout
her 20 years as an employee of the Downey Unified School District, Mrs. Yost has shared her
passion for art by teaching mosaic classes to GATE students and speaking with middle school
students about her art and their own artistic ambitions. Mrs. Yost was recently asked to be the
featured artist at the Downey Symphony's last concert of its 60th season, and she is actively
involved with the Downey Arts Coalition. In 2018, she was the featured artist in a solo show in
Solvang, California, where her work was displayed for six months. She will return to the same
venue this summer with a second show. She enjoys using as much recycled and repurposed
materials as possible in her mosaics, which gives each one its own unique charm.
Mr. Chris Tassos, Owner and President of Preferred Impressions, Inc., was born and raised in
Downey, and graduated from Warren High School. His parents still reside in Downey.
Preferred Impressions, Inc. is a Downey company, and has been in town for 14 years. Mr.
Tassos has been working with the City through his company since 2014. He works closely with
the City's Public Works, and Parks and Recreation Departments, providing design services for
special events, and various city equipment and infrastructure.
The artist services and project timelines are listed within the Professional Services Agreements
listed as Exhibits "B" and "C".
PROFESSIONAL SERVICES AGREEMENTS TO DESIGN, FABRICATE
AND INSTALL PUBLIC ART IN FURMAN PARK
MAY 28, 2019
PAGE 3
Quality of Life, Infrastructure & Parks
Public Engagement
FISCAL IMPACT
The total project cost� which includes pre -design, design, fabrication and installation o the
"Dreams of Tomorrow" artwork, is $29,640. 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 Lindsay Yost
Attachment C — Professional Services Agreement with Preferred Impress ons, m
Mir -l"11111
• r•
AND LINDSA YOST
TO DESIGN,r •- •
This Agreement is made and entered into this day of , 2019, by and between
the CITY OF DOWNEY ("City"), a municipal corporation and charter city located at 11111 Brookshire
Avenue, Downey, California, 90241, and Lindsay Yost ("Artist") an individual, located at 7624 Luxor
Street Downey, CA 90241.
A. City desires to commission a public art project (the "Artwork") which is to be located at
Furman Park located at 10419 Rives Avenue in Downey, California (the "Site").
B. The Community Development Department of City will manage the development of the
Artwork in consultation with the Artist.
C. The source of funds for the Artwork derives from funds made available through 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,
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.
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 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.
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,
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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 performancefor which City
intends to withhold payment. Within fifteen (15) 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 (15) 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.
SECTION 4. CHANGES 1N SCOPE.
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,
without additional compensation, corrector revise any errors, omissions, or other deficiencies in
Artist's work.
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Artist shall be responsible for developing the Artwork Design so thatthe Artwork can be constructed
and installed without exceeding the total fabrication and installation budget of up to TEN THOUSAND
SIX HUNDRED AND FORTY DOLLARS AND 40/100 ($10,640.00).
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. Artistacknowledgesthat it an essential element of the Artist's
Services to coordinate with City, as well as Chris Tassos and other persons who may be involved
with the development of the Artwork design, fabrication and installation and City agrees that such
persons will be made reasonably available to Artist for coordination and communication. 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.
SECTION 7. INDEPENDENT CONTRACTOR.
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
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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.
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.
9.1. INFRINGEMENT. Artist also agrees to protect, defend, indemnify and hold City, its
officers, agents and employees harmless from any action, claim, suit or 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.
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SECTION 10. INSURANCE REQUIREMENTS.
10.0. INSURANCE, Artist, at Artist's sole cost and expense for the full term 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.
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 tocurethe 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
consistent with this Agreement and in a manner reasonably satisfactory to City to date of termination,
consistent with the schedule of payment set forth in EXHIBIT C.
12.3 REIVIEDIES., 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.
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SECTION 13. COMPLIANCE WITH LAWS.
13.0. COMPLIANCE, Artist shall comply with all applicable laws, ordinances, codes and
regulations of the federal, state and local governments.
14.0.';1 NONDISCRIMINATION. INATION. Artist shall not discriminate, in any 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.
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 any 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.
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 hereunder shall 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.
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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 the case where 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.O 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. Artist may, at Artist's option, place a copyright notice on the Artwork in form and manner
required to protect copyrights in the Artwork under United States copyright law. If the copyright is
registered with the 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 the right to 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; Cit Innovations. "Innovations" includesprocesses, machines,
compositions of matter, improvements, inventions (whether or not protectable under patent laws),
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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
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.
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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 to and without 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 claim is filed ora 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 patentor 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
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 warrantyperiod 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.
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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 tows "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.
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 for a minimum period of
three (3) years, or for any longer period required by law, 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 inspectionoraudit, 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
11
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.
SECTION 20. REPUTATION AND CREDIT.
20.0. COMMITMENT BY 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
element posing the public safety hazard.
12
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 any time. 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 theamountof 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 MATERIAE WORKMANSHIP 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
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.
13
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 offeror 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.
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.
14
SECTION 26. SPECIAL PROVISIONS.
26.0. Special provisions, if any, to this Agreement are specified in the attached EXHIBIT E,
entitled, "SPECIAL PROVISIONS."
-SECTION 27. NQTICES,
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.
Lindsay Yost
7624 Luxor Street
Downey, CA 90241
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.
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.
is
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.
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 beheld 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.
• +r
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.
16
33.0 Artist agrees that no work or services funded by this Agreement shall inhibit or promote
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 provisions
of this Section shall be deemed a disallowed cost.
WITNESS THE EXECUTION HEREOF on the day and year first herein above written.
CITY OF i
• charter city
Attest.-
Maria
ttest:
Rick Rodriguez, Mayor
Maria Alicia Duarte, CMC, City Clerk
Approved as to Form..
ette M. Abich Garcia, City Attorney
Secretary
Approved as to Form:
Legal Counsel
17
EXHIBIT A
ARTIST'- SERVICES
Artist shall perform the following services to the satisfactionof City and within the deadline set
forth in EXHIBIT B:
I. DESCRIPTION OF THE ARTWORK
The Artist will design, and install a the mosaic titled, "Dreams of Tomorrow" ("Artwork").
The Artwork will be located in Furman Park at 10419 Rives Avenue in Downey,
California. The Artwork will be applied to the concrete base of an aluminum rocket
replica, -a separate, but adjoining art piece being created at the same site by a separate
artist, under a separate Professional Services Agreement, by the name of Preferred
Impressions, Inc. The Artwork will be applied to the concrete base after the base has
been poured and cured. The concrete base will be installed by the City of Downey, in
partnership with Preferred Impressions,_ Inc.
When researching for this art piece, the Artist took into account Downey's history in the
state of California, choosing to focus on the city's deep roots in the aerospace industry.
The Artist also wanted to pay tribute to Downey's incorporation date, 1956. The Artist
chose a design that would be reminiscent of that time period with the color and design
that was popular then and still timeless now, some 60 years later.
When designing this piece, the Artist wanted it to have a youthful feel because of the
nature of the rocket ship that will adorn to top of the concrete base. The Artist took
classic shapes from mid-century design and architecture, and then added pops of color
to ensure that this piece would appeal to local residents, young and old. The Artist
wanted this design to bring back happy memories to anyone that remembers playing at
a park playground as a child. The Artist also wanted to incorporate the feeling of being
in outer space, to pay tribute to Downey's rich history in the aerospace industry.
The concrete base will be poured in place (i.e. at Furman Park) and serve as the base of
the Artwork, and will be 2 feet tall by 3 feet wide at its base. This work will occur under a
separate Professional Services Agreement with Preferred Impressions, Inc., in
partnership with the City of Downey's Public Works Department.
When the concrete base is poured, cured, and forms are removed, the Artist will create
templates from paper on-site to ensure proper size and placement of the design
shapes. At the point of curing, the Artist will be able to adhere the mosaic covered mesh
directly to the concrete using a modified thinset without doing anything additional, unless
it needs to be cleaned up from being taken out of the forms. The Artist will not be able to
make this determination until visual inspection is conducted.
The concrete bands at the top and the bottom will be polished prior to the mosaic being
installed. The Artist will then take those templates back to the Artist's studio and transfer
those onto mesh pieces that will be cut into strips that will fit the dimensions of the
concrete base.
18
The Artist will then hand cut and place each piece according to the pattern and adhere
them to the mesh using a heat gun. Once all the tile pieces are adhered to the mesh,
then the Artist will transfer those pieces to back to the base to mount each tiled strip to
the concrete using exterior adhesive. Once that sets, the Artist will be able to grout and
seal the entire piece.
The Artist will use ceramic tile, stained glass, and some recycled ceramics in this piece.
The colors used in this mosaic will be bold, bright, and solid primary and secondary
colors, with turquoise being the main background color. The main color that will be used
in this art piece is turquoise (the background), but the shapes will be bold, bright colors
of the rainbow (green,_ yellow, orange, purple, red and blue). All materials used to create
the mosaic are made for exterior use. The grout and sealer is specific to outdoor use,
and will be able to withstand the elements. The recessed area of the concrete base will
be covered with a mosaic, leaving the top and bottom strips of the concrete exposed, but
it will be polished, creating a finished look. Anti -graffiti coating will be applied to aid in
the removal of any graffiti.
An image of the Artwork is included in this Exhibit.
Il. MAINTENANCE, REPAIR AND RESTORATION OF ARTWORK
The Artist will remain on-call to City to provide maintenance, repair and restoration
services for the Artwork. For up to one year after City issues the Notice of Acceptance of
the Artwork, Artist will monitor the Artwork two times per month, inspecting it for any
damage, including any loose tile, cracked or chipped grout. If damage exists, or the need
for maintenance, repair or restoration is required, including fixing and replacing any and all
parts of the mosaic, Artist will provide the work for a time and material(s) fee as set forth in
Exhibit C.
III. NOTICE OF DESIGN ACCEPTANCE
See Attached to this Exhibit
IV: NOTICE TO PROCEED WITH FABRICATION AND INSTALLATION
See Attached to this Exhibit
19
,f
0 C#�bfbownqy
Lindsay Yost
7624 Luxor Street
Downey, CA 90241
1411111 i i►I IiIiii
Pursuant to Exhibit A — Ill. Notice of esign cceptance, o the Pro essional Services
Agreement between the City of Downey ("CITY") and Lindsay Yost ("ARTIST"), the
CITY accepts the designs submitted by the ARTIST for the art piece to be located at
Furman Park. The design acceptance is based on continued work and partnership
between Council Members Rick Rodriguez and Alex Saab, and the ARTIST.
The City looks forward to working with the ARTIST in the completion and installation of
the art piece. Should you have any questions, please feel free to contact me at (562)
904-7151 or aschindlerOdownevcaom.
0 00
*91 Lvi I IVA L 010 11 rd a] so
Aldo E. Schindler
Director
Future Unlimited
CIVIC CENTER LIBRARY POLICE DEPARTMENT PARKS & RECREATION
11111 BROOKSHIRE AVE, 11121 BROOKSHIRE AVE. 10911 BROOKSHIRE AVE- 7850 QUILL DR.
PO BOX 7016 DOWNEY, CALIFORNIA PO BOX 7016 DOWNEY, CALIFORNIA
DOWNEY, CALIFORNIA 90241-7016 DOWNEY, CALIFORNIA 90242
90241-7016 562-904-7360 90241-7016 562-904-7238
562-869-7331 www.downeylibrary-org 562-861-0771
www.downevca.orq
INNER PRIKIN Oil W. "M
DOWNEY, CALIFORNIA
90241-7016
562-904-7202
MAINTENANCE SERVICES
12324 BELLFLOWER BLVD,
DOWNEY, CALIFORNIA
90242
562-904-7194
CftybtDown�y
RE: EXHIBIT A —IV. NOTICE TO PROCEED WITH FABRICATION AND
INSTALLATIOU
Pursuant to Exhibit A — IV. Notice to Proceed with Fabrication and Installation, of the
Professional Services Agreement between the City of Downey ("CITY") and Lindsay
Yost ("ARTIST"), the CITY herein provides notice to the ARTIST on
to proceed with the fabrication and installation of the art piece, after this Professional
The City looks forward to working with the ARTIST in the completion and installation of
the art piece. Should you have any questions, please feel free to contact me at (562)
904-7151 or asch"i-ndleradowhovea.10M. I
I be a 0
1061 RAI LVAN111 011 61"001 HAM PLO W��
N •
Future unlimited
CIVIC CENTER UTILITIES DIVISION MAINTENANCE SERVICES
9252 STEWART & GRAY RD. 12324 BELLFLOWER BLVD,
DOWNEY, CALIFORNIA DOWNEY, CALIFORNIA
90241-7016
90242
562-904-7202
562-904-7194
LIBRARY
POLICE DEPARTMENT
PARKS & RECREATION
11 111 BROOKSHIRE AVE,
11121 BROOKSHIRE AVE,
10911 BROOKSHIRE AVE,
7850 QUILL DR.
PC BOX 7016
DOWNEY, CALIFORNIA
SO BOX 7016
DOWNEY, CALIFORNIA
DOWNEY, CALIFORNIA
90241-7016
DOWNEY, CALIFORNIA
90242
90241-7016
562-904-7360
90241-7016
562-904-7238
562-869-7331
www,dawneylibrary,or9
562-861-0771
www.downevca.orq
EXHIBIT B
SCHEDULE OF •
TASK ESTIMATED LENGTH OF TIME
Pricing, shopping, gathering all materials 2 weeks, with possible 6 week wait time
for special order materials
Measure and create template, prepare concrete 1 week
Cut tiles and materials, assemble mosaic off site 4-6 weeks
Deliver and install mosaic on concrete base at 1-2 weeks
work site
Grout and seal mosaic 4-6 days
Maintenance, Repair, Restoration As requested by the City of Downey
Ra
EXHIBIT C
1. Fee. Artist's fee for Artwork Design, Fabrication and Installation, including all expenses
relating thereto, shall not exceed the sum of TEN THOUSAND SIX HUNDRED AND
FORTY DOLLARS AND 40/100 ($10,640.00).
2. Interim Payments; 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.
Design & Materials $2,140.00
Assembly & Installation $2,000.00
Upon Completion $6,500.00
4. Fabrication and Installation, Payment Schedule for Artwork. City shall pay Artist for the costs
and expenses identified in the Artwork Budget as developed based on EXHIBIT A. 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 Art Project Manager. The form of the
invoice shall be subject to the approval of the City's Art Project Manager or Director of
Community Development. Artist may adjust the line items within the Fabrication and Installation
budget with the prior written approval of City's Art Project Manager or Director of Community
Development, which approval will not be unreasonably withheld.
5. Reirnbursables: 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.
21
9. The parties agree that the Schedule for Payment set forth above may be modified only up
prior written authorization of City's Director of Economic Development or Project Manager. I
F7
I. 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.
IL Minimum eggirernents. 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 minimum shown in this
subdivision 3.2.10.2, 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.
(C) Professional Liabilit Errors & Omissions). Artist shall procure and
maintain, and require its sub -Artists to procure and maintain, for a period 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
23
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 engineers or architects Professional Liability Errors and
Omissions insurance endorsement.
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 2026, CG 20 33 or CG 20
38; 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 Covera es. 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.
24
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 losses and 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. Acce tabilit cif 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 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.
IX. 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.
25
WHEREAS, the undersigned, authors of the creative work, Lindsay Yost, an
Individual, (referred to hereinafter as "ASSIGNOR") has created an original work of authorship
entitled Dreams of Tomorrow described in Exhibit "A" for which together with related creative
works hereinafter as the COPYRIGHT;
WHEREAS City of Downey, a municipal corporation and charter city having its principal
place of business at 11111 Brookshire Avenue, Downey, California, 90241 (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 Jaw 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, ASSIGNOR hereby sells, assigns, transfers and sets 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.
ASSIGNOR further covenants that no assignment, sale, agreement or encumbrance has
been or will be made or entered into which would conflict with this assignment; and
ASSIGNOR further covenants 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; and.
ASSIGNOR 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; and
ASSIGNOR does hereby grant to ASSIGNEE the rights: to do any and all acts
necessary or appropriate to protect the rights granted herein such as securing copyright/
trademark registration, renewals, reissues and extensions; to institute any actions to defend
Assignee's ownership over the COPYRIGHT; to collect any income, royalties, damages, and
payments derived from past, present, or future infringement of the COPYRIGHT and to enjoy all
rights provided for the COPYRIGHT through copyright and trademark laws enacted in the
United States and foreign countries; and
26
27
o
Date. g/,f//?
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of �v5
On ®' -_ before me;-- -%�Y� ' A�A �) -
s (Insert NV a of Notary Public and Title)
personally appeared ,;
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s)acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
SI r t
� 90:
WITNESS my • .• Notary Public - California �00
Signatur���' 2 Los Angeles s,CM
,
IMAGE OF ARTWORK
29
D PREFERRED IMPRESSIONS,
TO DESIGN, FABRICATE AND INSTALL A WORKOF
This Agreement is made and entered into this day of , 2019 , by and between
the CITY OF DOWNEY ("City"), a municipal corporation and charter city located at 11111 Brookshire
Avenue, Downey, California, 90241, and PREFERRED IMPRESSIONS, INC. ("Artist"), a California
corporation located at 9708 Washburn Rd., Downey, CA 90241.
A. City desires to commission a public art project (the "Artwork") which is to be located at
Furman Park, located at 10419 Rives Avenue in Downey, California (the "Site")
B. The Community Development Department of City will manage the development of the
Artwork in consultation with the Artist.
C. The source of funds for the Artwork derives from funds made available through Arvin 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 t. 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."
SECTION 2. SCHEDULE OF PERFORMAIVCE.
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,
i
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.
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.
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,
2
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. CITYS CITYRIGHT 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 (15) 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 (15) 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 WAIVE I 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.
SECTION 4. CHANGES IN SCOPE.
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.
SECTION 5. RESPONSIBILITIES OF THE ARTIST.
5.0. COMPLIANCE WITH BUDGET CONSTRAINTS. Artist shall be responsible for providing
services described in EXHIBIT 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,
without additional compensation, correct or revise any errors, omissions, or other deficiencies in
Artist's work.
3
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 TWENTY
THOUSAND DOLLARS AND 001100 ($20,000.00).
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, as well as Lindsay Yost and other persons who may be involved
with the development of the Artwork design, fabrication and installation and City agrees that such
persons will be made reasonably available to Artist for coordination and communication. 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.
SECTIO 6. -CITY'S RESPONSIBILITIES.
6.0. SITE lUFORMATIM 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 IDENT IFICATION,_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.
SECTION 7.INDEPENDENT CONTRACTO
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
4
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.
SECTION 8. ASSIGNABILITY.
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.
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 performanceofthis 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.
9.1. INFRINGEMENT. Artist also agrees to protect, defend, indemnify and hold City, its
officers, agents and employees harmless from any action, claim, suit or 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.
5
SECTION 10. INSURANCE REQUIR9MENTS.
10.0. INSURANCE. Artist, at Artist's sole cost and expense for the full term 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.
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
withanopportunity 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
consistent with this Agreement and in a 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.
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13.0. COMPLIANCE... Artist shall comply with all applicable laws, ordinances, codes and
regulations of the federal, state and local governments.
14.0. NONDISCRIMINATION. Artist shall not discriminate, in any 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.
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 any 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.
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 hereunder shall 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.
7
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 the case where 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.
r fr. it it i.' S s,. 0. 0 1 i �.
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 maybe
incorporated into Artwork or which are in the area of the Artwork, such as the flooring, walls and other
fixturesandfeatures 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. Artist may, at Artist's option, place a copyright notice on the Artwork in the form and manner
required to protect copyrights in the Artwork under United States copyright law. If the copyright is
registered with the 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.
16.1I01Si yI01SPOSAI.
Artist grants City the following exclusive rights:
A. City shall have the right to 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 ANIS ASSIGNMENT OF INNOVATIONS.
A. innovations; City Innovations. "Innovations" includes processes, machines,
compositions of matter, improvements, inventions (whether or not protectable under patent laws),
12
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
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 Reauests,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
Jaws 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.
W
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 to and without 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
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 ANIS 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.
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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 withthe provisions of this Agreement.
�•awl
18.0. MAINT NANCERERECORDS. 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 for a minimum period of
three (3) years, or for any longer period required by law, 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 fora 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
11
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.. CUSTODYOFRECORDS. 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.
W
A. Without limitation of any other provision hereof, Artist expresslyagrees 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.
ECTION 20. REPUTATION AND CREDIT.
20.0. COMMITMENT BY 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
element posing the public safety hazard.
12
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 any time. 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 beheld 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.,WORKMANSHIP 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
originally performed on the ArtworkandArtist 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 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.
13
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.
SECTION 23. CONFLICT OF INTEREST.
23.0. Artist shall avoid all conflict of interest or appearance of conflict of interest in
performance of this Agreement.
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.
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 termor 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.
14
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.
am
Preferred Impressions, Inc.
9708 Washburn Rd.
Downey, CA 90241
714-745-1904
chris@12referredimeressions.com
Attn: Chris Tassos
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.
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 addressor 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.
15
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.
Excepttothe 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.
•
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.
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.
16
33.0 Artist agrees that no work or services funded by this Agreement shall inhibit or promote
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 provisions
of this Section shall be deemed a disallowed cost.
17
CITY • DOWNEY,
a California municipal corporation
and charter city
y:
Rick Rodriguez, Mayor
M -
Preferred Impressions, Inc., a California
corporation
By:
'Chris Tassos
Its: Owner and President
Maria Alicia Duarte, CIVIC, City Clerk Secretary
►• Garcia, City Attorney
W3030MEMEMUM
om
EXHIBIT A
ARTIST'S SERVICES
Artist shall perform the following services to the satisfaction of City and within the deadline set
forth in EXHIBIT B:
I. DESCRIPTION OF THE ARTWORK
Preferred Impressions, Inca ("Artist") will design, fabricate, and install an aluminum
rocket with concrete base ("Artwork"), which will be complimented by a tile mosaic
covering the concrete base (to be completed by another Artist) titled, "Dreams of
Tomorrow". The Artwork will be located in Furman Park at 10419 Rives Avenue in
Downey, California.
The Artwork will stand 12 feet tall from tip of the nose cone to the bottom of the three fins
attached to the rocket. At its widest point (tip of rocket fin to tip of opposing rocket fin)
the Artwork will measure 5 feet.
The Artwork color will consist of the body to be natural aluminum with an orbital sanded
finish. The color of nose cone and fins will be anodized orange.
The Artwork will be constructed entirely of 6061 aluminum and will be treated with an
anodized coating to withstand the elements. An anti -graffiti coat will also be applied.
Material and fabrication specifics include:
• Center tubing extending through the rocket will be constructed of 2 inch
aluminum tubing with '/4 inch thick wall;
Round "step plates" (i.e. round portions of the exterior "ribs:" are connected to
plates) to be constructed of 1/2 inch aluminum plate;
Rocket "ribs" to be constructed of 3/16 inch x1 inch aluminum bar; and,
4 Rocket "fins" to be constructed out of/4 inch aluminum plate.
The concrete base will be poured in place (i.e. at Furman Park), serve as the `base `of the
Artwork, and will bet feet tall by 3 feet wide at its base.
The installation of the Artwork will be completed in partnership with the City of Downey's
Public Works and Park & Recreation Departments, and the Artist.
• The Artist will provide required engineering plans, forms and Jbolt templates to
pour the concrete base.
• The Artist will provide any subject matter expertise regarding the Artwork and its
installation.
• Installation ofrebar, footings, and pouring of concrete to be completed by City's
Public Works Department.
• Any necessary tools to pour and install the concrete base of the Artwork (i.e.
cement mixer, backhoe) will be provided by City's Public Works Department.
An image of the Artwork is included in this Exhibit.
19
The Artist will remain on-call to City to provide maintenance, repair and restoration
services for the Artwork. For up to one year after City issues the Notice of Acceptance of
the Artwork, Artist will monitor the Artwork two times per month, inspecting it for any
damage. If damage exists, or the need for maintenance, repair or restoration is required,
Artist will provide the work for a time and material(s) fee as set forth in Exhibit C.
111. NOTICE OF DESIGN ACCEPTANC
-- Attached to this Exhibit
NOTICE TO PROCEEDFABRICATION 1 INSTAILLATIO
See -• to this Exhibit
EMEMEW
Preferred Impressions, In
Attn: Mr. Chris Tassos
9708 Washburn Road
Downey, CA 90241 1
The City looks forward to working with the ARTIST in the completion and installation of
the art piece. Should you have any questions, please feel free to contact me at (562)
904-7151 or aschindlqt&bWftff�ga�•.
CITY OF DOWNEY
COMMUNITY DEVELOPMENT DE",T.
Aldo E ' Sch n•ler
Director
Future Unlimited
CIVIC CENTER
LIBRARY
POLICE DEPARTMENT
PARKS & RECREATION
UTILITIES DIVISION
MAINTENANCE SERVICES
71111 BROOKSHIRE AVE,
11121 BROOKSHIRE AVE.
10911 BROOKSHIRE AVE
7850 QUILL DR-
9252 STEWART & GRAY RD,
12324 BELLFLOWER BLVD.
PO BOX 7016
DOWNEY, CALIFORNIA
PO BOX 7016
DOWNEY, CALIFORNIA
DOWNEY, CALIFORNIA
DOWNEY, CALIFORNIA
DOWNEY, CALIFORNIA
9 02 41-7 01 6
DOWNEY, CALIFORNIA
90242
90241-7016
90241-7016
562-904-7360
90241-7016
562-904-7238
562-904-7202
90242
562-869-7331
www,downeylibraryarg
562-861-0771
562-904-7194
www.downevca,ora
El0,
cixy ownq
Preferred Impressions, Inc.
Attn: Mr. Chris Tassos
9708 Washburn Road
Downey, CA 90241
RE: EXHIBIT A —IV. NOTICE TO PROCEED WITH FABRICATION AND
INSTALLATION
1-- k�- I t •
IRM, 0 M-- MR 11
The City looks forward to working with the ARTIST in the completion and installation i
the art piece. Should you have any questions, please feel free to contact me at (562)
904-7151 or aschindIe[@dbwh6yqa.oLg- I
202M
0 9
Ly. Al kyj 124 11
Aldo E. Schindler
Director
Future Unlimited
CIVIC CENTER LIBRARY POLICE DE MENT
11111 BROOKSHIRE AVE, 11121 BROOKSHIRE AVE, 10911 BROC=RE AVE,
PO BOX 7016 DOWNEY, CALIFORNIA PO BOX 7016
DOWNEY, CALIFORNIA 9 02 41-7 01 6 DOWNEY, CALIFORNIA
90241-7016 562-904-7360 90241-7016
562-869-7331 www.d.._Ylibraryorq 562-861-0771
www.do,Anevca.orq
UTILITIES DIVISION
9252 STE WART & GRAY RD
DOWNEY, CALIFORNIA
90241-7016
562-904-7202
DOWNEY, CALIFORNIA
90242
562-904-7194
EXHIBIT B
Er
-f -AS -K ESTIMATED LENGTH OF TIME
Build, mold and pour the concrete base for the Rocket 3 weeks
(i.e., art piece)
Fabricate the Rocket 8 weeks
Site installation of the Rocket 1 week
Maintenance, Repair, Restoration As requested by the City of Downey
in
1. Fee. Artist's fee for Artwork Design, Fabrication; and Installation, including all expenses
relating thereto, shall not exceed the sum of TWENTY THOUSAND DOLLARS AND
00/100 ($20,000.00)
2. Pavment Schedule.
Upon Completion $20,000.00
3. Fabrication and Installation, Payment Schedule for Artwork. City shall pay Artist for the
costs and expenses identified in the Artwork Budget as developed based on EXHIBIT A. 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 Art Project Manager or 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 or Director of Community
Development, which approval will not be unreasonably withheld.
4. Reimbursables: City will not make any additional payment for Artist's expenses.
5.1n 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.
6. 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.
7."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.
8. 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 or Art Project Manager,
9. Maintenance, Repair and Restoration of Artwork: $75/hourplus materials.
22
r
I. Time for Comllnce 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.
II. Minimum Reouirements. 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 minimum shown in
this subdivision 3.2.10.2, 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.
23
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. CommercialGeneral 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 20 38; 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. PrimaN 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 anyway.
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 losses and 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.
24
VII. Acceptability of Insurers. Insurance is to be placed with insurers with a
currentA.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 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.
IX. 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 incompliance 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.
25
WHEREAS, the undersigned, authors of the creative work, Preferred Impressions, a
California Corporation (referred to hereinafter as "ASSIGNORS") have created an original
work of authorship entitled Dreams of Tomorrow described in Exhibit "A" for which together
with related creative works hereinafter as the COPYRIGHT;
WHEREAS City of Downey, a'municipal corporation and charter city having its principal
place of business at 11111 Brookshire Avenue, Downey, California, 90241 (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 valuableconsideration, 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; and.
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; and
ASSIGNOR does hereby grant to ASSIGNEE the rights: to do any and all acts
necessary or appropriate to protect the rights granted herein such as securing copyright/
trademark registration, renewals, reissues and extensions; to institute any actions to defend
Assignee's ownership over the COPYRIGHT; to collect any income, royalties, damages, and
payments derived from past, present, or future infringement of the COPYRIGHT and to enjoy all
rights provided for the COPYRIGHT through copyright and trademark laws enacted in the
United States and foreign countries; and.
26
Preferred Impressions, Inc.
By
Name: Chris Tassos
Title: Owyer—aid-Pre-sideit
27
Date: ~2�
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of
On before m
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Californiathat the
foregoing paragraph is true and correct.
Sifty lei. OLI
0 COMM. #221190
WITNESS my hand and official seal. Notary Public •California
Los Angeles Couo1 r
• � x fires 1
Signatur > (Seal)
M