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HomeMy WebLinkAboutA Reason to Survive - Paradise Creek Educational Gathering Place - 2016AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND A REASON TO SURVIVE, INC. (ARTS) THIS AGREEMENT is entered into on this 9th day of May, 2016, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and A REASON TO SURVIVE, INC. (ARTS), a California non-profit corporation (the "CONSULTANT"). RECITALS WHEREAS, A REASON TO SURVIVE, INC. (ARTS), a California non-profit corporation has been a catalyst in delivering arts, culture and education programs and projects in National City, and has created a movement behind the importance of the arts as a prevention and intervention vehicle to create positive transformation in children and youth facing adversity; WHEREAS, the CITY'S Department of Engineering & Public Works applied for and received a Prop 84 Storm Water Grant Program grant from the State Water Resources Control Board (SWRCB) to install multiple bioretention areas and constructed wetlands at Kimball Park, and restore approximately 1,050 linear feet of Paradise Creek within Kimball Park; WHEREAS, part of the grant agreement with the SWRCB requires the CITY to create an educational gathering place near the wetland and creek restoration area, which includes creating a minimum of three educational/interpretive signs and five benches; WHEREAS, to meet the grant requirements for public outreach and education, the CITY desires to employ a CONSULTANT to provide art and design services for a community art piece referred to as Paradise Creek Educational Gathering Place; WHEREAS, the CITY and the CONSULTANT previously entered into a five-year Lease Agreement, effective July 1, 2015, wherein the CONSULTANT agreed to lease the CITY' S Arts Center located at 200 E. 12th Street and as part of the consideration for the lease, enrich the lives of National City residents by providing arts, culture and educational resources;-. WHEREAS, per the terms of the Lease Agreement, the CONSULTANT is required to deliver a minimum of $75,000 in public art projects per year; WHEREAS, any and all public art delivered by the CONSULTANT under this Agreement shall be considered separate and distinct from requirements under the Lease Agreement, and therefore, will not relieve the CONSULTANT of its obligations under the Lease Agreement; WHEREAS, based on review of the CONSULTANT'S performance and qualifications providing art projects, community outreach and education for residents of National City, the CITY has determined that the CONSULTANT, a California non-profit corporation and a 501(c)(3) non-profit, is qualified by experience and ability to perform the services desired by the CITY, and the CONSULTANT is willing to perform such services; and, WHEREAS, the CONSULTANT agrees that upon completion of the Paradise Creek Educational Gathering Place, the physical works of art shall be transferred to the CITY and the CONSULTANT waives and releases all rights of ownership to the work of art. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONSULTANT. The CITY agrees to engage the CONSULTANT, and the CONSULTANT agrees to perform the services set forth here in accordance with all terms and conditions contained herein. The CONSULTANT represents that all services shall be performed directly by the CONSULTANT or under direct supervision of the CONSULTANT. 2. PURPOSE. The CITY hereby commissions the CONSULTANT to engage the services of a professional artist(s), to be selected through a Request for Qualifications, in the conceptualization, creation, design, production, transport, and installation of original sculptures, benches, educational signage and landscaping as generally described in Section 4 below. The CONSULTANT hereby agrees to provide those services in conformance with the terms of this Agreement. 3. EFFECTIVE DATE AND LENGTH OF AGREEMENT. This Agreement will become effective on February 1, 2016. The duration of this Agreement is for a period of six months, February 1, 2016 through July 31, 2016. Completion dates or time durations for specific portions of the Project are set forth in Exhibit "A". 4. SCOPE OF SERVICES. The CONSULTANT will perform services as set forth in the attached Exhibit "A" to deliver a community art project referred to as Paradise Creek Educational Gathering Place (the "Work"). The CONSULTANT shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CITY for such services, except as authorized in advance by the CITY. The CITY may unilaterally, or upon request from the CONSULTANT, from time to time reduce or increase the Scope of Services to be performed by the CONSULTANT under this Agreement. Upon doing so, the CITY and the CONSULTANT agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services. 2 City of National City and A Reason to Survive, Inc. 5. PROJECT COORDINATION AND SUPERVISION. Stephen Manganiello, Director of Public Works / City Engineer hereby is designated as the Project Coordinator for the CITY. and will monitor the progress and execution of this Agreement. The CONSULTANT shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONSULTANT. Ashleigh Starke, Director of Programs, thereby is designated as the Project Director for the CONSULTANT. 6. DESCRIPTION OF THE WORK. See Exhibit "A" for Description of the Work, including an artist rendering of the Paradise Creek Educational Gathering Place. 7. PHASES OF WORK. See Exhibit "A" for Phases of Work. 8. SCHEDULE. See Exhibit "A" for Schedule. 9. COMPENSATION AND PAYMENT. The compensation for the CONSULTANT shall be based on monthly billings covering actual work performed. Billings shall include labor classifications, respective rates, hours worked and also materials, if any. The total cost for all work described in Exhibit "A" shall not exceed $50,000 (the Base amount) without prior written authorization from the Project Coordinator. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibit "A", as determined by the Project Coordinator. The CONSULTANT shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred, and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CITY, and for furnishing of copies to the CITY, if requested. 10. ACCEPTABILITY OF WORK. The City shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement, and the amount of compensation due. In the event the CONSULTANT and the City cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT in this Agreement, the City or the CONSULTANT shall give to the other written notice. Within ten (10) business days, the CONSULTANT and the City shall each prepare a report which supports their position and file the same with the other party. The City shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT. 11. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint ventures with one another. Neither the CONSULTANT nor the CONSULTANT'S employees are employees of the CITY, and are not entitled to any of the rights, benefits, or privileges of the CITY'S employees, including but not limited to retirement, medical, unemploy- ment, or workers' compensation insurance. 3 City of National City and A Reason to Survive, Inc. This Agreement contemplates the personal services of the CONSULTANT and the CONSULTANT'S employees, and it is recognized by the parties that a substantial inducement to the CITY for entering into this Agreement was, and is, the professional reputation and competence of the CONSULTANT and its employees. Neither this Agreement nor any interest herein may be assigned by the CONSULTANT without the prior written consent of the CITY. Nothing herein contained is intended to prevent the CONSULTANT from employing or hiring as many employees, subconsultants and/or professional artists, as the CONSULTANT may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONSULTANT with its subconsultant(s) shall require the subconsultant(s) to adhere to the applicable terms of this Agreement. 12. RISK OF LOSS AND INSURANCE. The CONSULTANT shall bear all risk of loss or damage to the Work until it is delivered and installed at the site. 13. REPRODUCTIONS. The CONSULTANT shall not create three-dimensional reproductions of the Work, or portions thereof, without the express, written consent of the CITY. All expenses associated with creating three-dimensional reproductions shall be borne by the CONSULTANT. 14. OWNERSHIP RIGHTS AND LICENSES. Consistent with Section 11 of this Agreement, professional artists under contract with the CONSULTANT for the purpose of performing the Work are required to adhere to the applicable terms of this Agreement, including the provisions of this Section 14 and Section 31. Ownership of all materials and concepts produced for the CITY under this Agreement, including but not limited to the completed Work, and all rights to licensing and reproductions of the Work, shall pass to and become the property of the CITY, once payment for that phase of work is made by the CITY. The CITY, at its option, will store all drawings and materials that may assist with future repairs. The CONSULTANT shall waive all rights to the Work, including copyright, moral rights under the Visual Artists Rights Act, rights under the California Art Preservation Act, and any other artistic rights that may exist in the Work. The CONSULTANT hereby assigns to the CITY all rights to produce, give, sell, and distribute still or motion images and models or other likeness of any kind of the Work, the compensation for which is part of the fee described above, but shall exercise no rights thereto inconsistent with the provision of this Section 14. The CITY may provide appropriate credit to the CONSULTANT on all such material, but is not obligated to do so. Any Memoranda, Reports, Maps, Drawings, Renderings, Photos, Plans, Specifications, and other documents prepared by the CONSULTANT for this Project, whether paper or electronic, shall become the property of the CITY for use with respect to this Project, and shall be turned over to the CITY upon completion of the Project, or any phase thereof, as contemplated by this Agreement. 4 City of National City and A Reason to Survive, Inc. The CONSULTANT agrees that the CITY may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium, or method utilize the CONSULTANT' S written work product for the CITY'S purposes, and the CONSULTANT expressly waives and disclaims any residual rights granted to it by state or federal law, including Civil Code Sections 980 through 989 relating to intellectual property and artistic works and 17 United States Code § 106A and § 113(d) relating to artists rights. 15. REPAIRS. To the extent practical, all repairs and restorations made during the lifetime of the CONSULTANT shall have the CONSULTANT'S approval. To the extent practical, the CITY shall give the CONSULTANT the opportunity to perform the repairs and restoration at a reasonable fee. 16. PROCESS DOCUMENTATION. The CONSULTANT shall document, photographically and in writing, the creative process for production of the Work at various and appropriate stages and shall provide that documentation to the CITY prior to installation of the Work. 17. CONTROL. Neither the CITY nor its officers, agents, or employees shall have any control over the conduct of the CONSULTANT or any of the CONSULTANT'S employees, except as herein set forth, and the CONSULTANT or the CONSULTANT'S agents, servants, or employees are not in any manner agents, servants, or employees of the CITY, it being understood that the CONSULTANT its agents, servants, and employees are as to the CITY wholly independent CONSULTANT, and that the CONSULTANT'S obligations to the CITY are solely such as are prescribed by this Agreement. 18. COMPLIANCE WITH APPLICABLE LAW. The CONSULTANT, in the performance of the services to be provided herein, shall comply with all applicable state and federal statutes and regulations, and all applicable ordinances, rules, and regulations of the City of National City, whether now in force or subsequently enacted. The CONSULTANT and each of its SUBCONSULTANT(S), shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 19. LICENSES, PERMITS, ETC. The CONSULTANT represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The CONSULTANT represents and covenants that the CONSULTANT shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for the CONSULTANT to practice its profession. 20. STANDARD OF CARE. A. The CONSULTANT, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONSULTANT'S trade or profession currently practicing under similar conditions and in similar locations. The CONSULTANT shall take all special precautions necessary to protect the CONSULTANT'S employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. 5 City of National City and A Reason to Survive, Inc. B. Unless disclosed in writing prior to the date of this Agreement, the CONSULTANT warrants to the CITY that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONSULTANT'S professional performance or the furnishing of materials or services relating thereto. C. The CONSULTANT is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONSULTANT has been retained to perform, within the time requirements of the CITY, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONSULTANT has notified the CITY otherwise, the CONSULTANT warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by the CONSULTANT to use due diligence under this sub -paragraph will render the CONSULTANT liable to the CITY for any increased costs that result from the CITY'S later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 21. NON-DISCRIMINATION PROVISIONS. The CONSULTANT shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONSULTANT will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The CONSULTANT agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. 22. CONFIDENTIAL INFORMATION. The CITY may from time to time communicate to the CONSULTANT certain confidential information to enable the CONSULTANT to effectively perform the services to be provided herein. The CONSULTANT shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. The CONSULTANT shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 14, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONSULTANT, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONSULTANT without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONSULTANT by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONSULTANT shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CITY. In its performance hereunder, the 6 City of National City and A Reason to Survive, Inc. CONSULTANT shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONSULTANT shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of this Section 22. 23. INDEMNIFICATION AND HOLD HARMLESS. The CONSULTANT agrees to defend, indemnify and hold harmless the City of National City, its officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suites, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONSULTANT'S performance or other obligations under this Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers, or employees. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. 24. WORKERS' COMPENSATION. The CONSULTANT shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CITY or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONSULTANT under this Agreement. 25. INSURANCE. The CONSULTANT, at its sole cost and expense, shall purchase and maintain, and shall require its SUBCONSULTANT(S), when applicable, to purchase and maintain throughout the term of this Agreement, the following checked insurance policies: A. ❑ If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). The policy shall name the CITY and its officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of $1,000,000 per occurrence and $2,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Agreement. The policy shall name the CITY and its officers, agents and employees as additional insureds, and a separate additional insured 7 City of National City and A Reason to Survive, Inc. endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". D. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of CONSULTANT'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided prior to commencement of work under this Agreement. If CONSULTANT has no employees subject to the California Workers' Compensation and Labor laws, CONSULTANT shall execute a Declaration to that effect. Said Declaration shall be provided to CONSULTANT by CITY. E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY of cancellation or material change. F. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONSULTANT shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. G. Insurance shall be written with only California admitted companies that hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the CITY'S Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. H. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY'S Risk Manager. If the CONSULTANT does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. I. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. 26. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of - court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney's fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 8 City of National City and A Reason to Survive, Inc. 27. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 28. TERMINATION. A. This Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 30-day's written notice to the CONSULTANT. During said 30-day period the CONSULTANT shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated immediately by the CITY for cause in the event of a material breach of this Agreement, misrepresentation by the CONSULTANT in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CITY. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONSULTANT as provided for herein. D. In the event of termination, all finished or unfinished Memoranda, Reports, Maps, Drawings, Renderings, Photos, Plans, Specifications and other documents prepared by the CONSULTANT, whether paper or electronic, shall immediately become the property of and be delivered to the CITY, and the CONSULTANT shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CITY by the CONSULTANT'S breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 14. E. The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONSULTANT; (2) a reorganization of the CONSULTANT for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONSULTANT. 29. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if 9 City of National City and A Reason to Survive, Inc. mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To CITY: Stephen Manganiello Director of Public Works / City Engineer Engineering & Public Works Department City of National City 1243 National City Boulevard National City, CA 91950-4301 To CONSULTANT: Matt D'Arrigo CEO / Founder A Reason to Survive, Inc. 200 E. 12th Street National City, CA 91950 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty- eight (48) hours by letter mailed or delivered as specified in this Section. 30. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONSULTANT shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the City of National City. The CONSULTANT also agrees not to specify any product, treatment, process or material for the project in which the CONSULTANT has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. The CONSULTANT shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONSULTANT shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CITY in which the CONSULTANT has a financial interest as defined in Government Code Section 87103. The CONSULTANT represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CITY. ❑ If checked, the CONSULTANT shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, the CONSULTANT shall file a Statement of Economic Interests with the City Clerk 10 City of National City and A Reason to Survive, Inc. of the City of National City in a timely manner on forms which the CONSULTANT shall obtain from the City Clerk. The CONSULTANT shall be strictly liable to the CITY for all damages, costs or expenses the CITY may suffer by virtue of any violation of this Section 30 by the CONSULTANT. 31. WAIVER. Due to the nature of the work of art and the site on which it is installed, the CONSULTANT and his/her agents, heirs, successors and assigns hereby waive any and all federal and state rights they may have in or to the Work, including but not limited to copyright, any rights under the Visual Artists Rights Act, as set forth at 17 U.S.C. §106A and § 113(d), and any rights under the California Art Preservation Act, as set forth in Civil Code Section 987. The CONSULTANT agrees that upon completion, the physical work of art which is created pursuant to this Agreement shall be transferred to and shall vest in the CITY, and the CONSULTANT hereby expressly waives and releases all rights of ownership to the work of art, including but not limited to those under Civil Code Section 988. The CONSULTANT and his/her agents, heirs, successors and assigns also agree not to attempt to defeat this waiver by cooperating with any organization which seeks to bring an action against City under Civil Code Section 989 or any other provision of law. 32. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state, or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. To the extent any provision of any Exhibit or Schedule conflicts or is inconsistent with provisions of this Agreement, the terms of this Agreement shall control. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 11 City of National City and A Reason to Survive, Inc. laudia G City Atto I. Audit. If this Agreement exceeds ten -thousand dollars ($10,000), the parties shall be subject to the examination and audit of the State Auditor for a period of three (3) years after final payment under the Agreement, per Government Code Section 8546.7. J. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. K. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. L. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY A REASON TO SURVIVE, INC. (ARTS) By:.) tti Leslie Deese, City Manager Matt D' rrigo, APPROVED AS TO FORM: tf Li eiV SI va'_ By: Dan Buryj, Director of Operations 12 City of National City and A Reason to Survive, Inc. d- EXHIBIT "A" A Reason to Survive I ARTS Changing the life trajectory of youth through the arts and creativity Mr. Stephen Manganiello Director of Public Works/City Engineer National City Engineer Division 1243 National City Blvd. National City, CA 91950 5/6/2016 Dear Steve: 200 E 12th Street National City, CA 91950 Phone: 619.297.2787 Web: www.areasontosurvive.org A Reason to Survive (ARTS) respectfully submits a proposal to National City for art and design services for a community art project in Kimball Park adjacent to Paradise Creek. For the purposes of this proposal, the project will be referred to as Paradise Creek Educational Gathering Place, located at 141-229 E. 16th Street, National City, CA. PARADISE CREEK EDUCATIONAL GATHERING PLACE SCOPE OF WORK I. PROJECT OVERVIEW It is our understanding that the City of National City received a Prop 84 Storm Water Grant Program grant from the State Water Resources Control Board to install multiple bioretention areas and constructed wetlands at Kimball Park and restore approximately 1,050 linear feet of Paradise Creek within Kimball Park. Per the City's grant agreement with the State, the City is required to create an educational gathering place near the constructed wetland and creek restoration that includes installation of a minimum of three educational/interpretive signs and five benches. In order to meet the City's grant requirements, ARTS, in collaboration with local artists, middle and high school students, and community volunteers, will create an educational gathering place near the constructed wetland and creek restoration. The project will include a gateway with educational elements to overlook the wetlands at the south entrance of Kimball Park. The community will be engaged in the design and build of all aspects of the project through facilitated community design meetings and a project build. II. PROJECT ACTIVITIES A. Design Component The design will include landscape features consistent with the City's Capital Improvement Program (CIP), including the following: ■ Artistic representation of the storm water and tidal flow etched and painted into the concrete walking path; ARTS I A Reason To Survive: Paradise Creek Page 1 of 6 Educational Gathering Place A Reason To Survive Initials: t Date: S%iis' National City Initia s. Date: A Reason to Survive I ARTS Changing the life trajectory of youth through the arts and creativity 200 E 1216 Street National City, CA 91950 Phone 6192972787 Web wwvi areasontosurvive_org Landscaping "swales" that mimic the storm water collection systems throughout NC using the same boulders and river rocks; ■ 8-10 benches made of recycled concrete material from the old riverbed; • 3 artistic signs on storm water education; • Sculptural elements that emit light (as beacons might) and offer conceptual representation of the birds of southern California that will populate the area thanks to the naturalization of the creek and filtering of storm water. The preliminary design was previously vetted through City staff and the Public Art Committee for consistency review. See Appendix C for rendering. The project scope and public art design elements were found to be consistent with the City's Public Art Program, CIP and grant requirements. B. Engineering ARTS will ensure that all design elements requiring engineering and/or permitting is determined through consultations with City staff and/or their engineering consultants, and subsequently submitted to the National City Engineering Division for review and approval. III. COMMUNITY ENGAGEMENT A. Steering Group A Steering Group, comprised of 8-10 individuals, will serve as a working group and help to advise the project on a monthly basis. Members include: NC Public Library, ARTS youth apprentices, NC Community Services, NC Engineering & Public Works, Olivewood Gardens, San Diego Community Garden Network, and Health & Human Services Agency. Guidance includes, but is not limited to, participant outreach, securing in -kind materials, and advocating for the project. B. Key Partnerships Key partners for this Project include, but are not limited to, the City of National City, Olivewood Gardens, National City Public Library, Boys and Girls Club of America, National City Middle School, Sweetwater High School, San Diego Community Garden Network, Health and Human Services Agency, and National City Nutrition Center. C. Volunteer Participants ARTS will engage approximately 200 youth and adults from National City and surrounding communities in the design and build of Paradise Creek Educational Gathering Place. Participants will be invited to attend a Community Design Workshop, Open House, Early Success Art -making Workshops and the culminating Build. D. Youth Apprenticeships ARTS will partner with Sweetwater High School and other local high schools to offer approximately four (4) paid apprenticeships for youth to learn workforce development skills ARTS I A Reason To Survive: Paradise Creek Educational Gathering Place Page 2 of 6 A Reason To Survive Initials Date: I 40 National City Initials: Date: A Reason to Survive I ARTS Changing the life trajectory of youth through the arts and creativity 200 E 12th Street National City, CA 91950 Phone 619 297 2787 Web- www areasontosurvive.org from professional artists. Apprenticeships include one (1) Landscape Architecture, two (2) 3D Design & Fabrication one (1) Photojournalism position. Apprentices will work with professional artists approximately 8-10 hours per week during the Project. ARTS will also offer Service Learning hours for interested students. IV. ARTISTS A. Rooted in Place Landscape Architecture and Consulting (Rooted) will serve as the Project Manager / Lead Designer, and be responsible for designing and implementing the project. Rooted is trained in the Pomegranate Center methodology, and has served as the Project Manager for two of ARTS previous gathering place projects — Manzanita Gathering Place (2013, City Heights) and Park & Lot Gathering Place (2015, National City). B. ARTS conducted an artist search for two Support Artists by means of a Request for Qualifications. Brennan Hubble and Vicki Leon, public artists with professional experience in 3D Design and Fabrication, were selected by an art committee and are employed with a work -for -hire agreement. Both are Pomegranate Center fellows, and have participated on two or more gathering places led by ARTS. V. SCHEDULE Planning for the Project will begin in February, with completion of final design in May. The installation and build will occur June 2, 3, 4 and 5. The Project will be finalized by June 30, 2016. Please see Appendix B for key dates associated with this Project timeline. ARTS I A Reason To Survive: Paradise Creek Educational Gathering Place Page3of6 A Reason To Survive Initials ate:514/P1 National City initials:" Date: A Reason to Survive 1 ARTS Changing the life trajectory of youth through the art, and crcat i it% APPENDIX A PROJECT SITE MAP ARTS I A Reason To Survive: Paradise Creek Page 4 of 6 Educational Gathering Place 200 E 12'" Street National City, CA 91950 Phone: 619.297.2787 Web: www.areasontosurvive.org A Reason To Survive Initial .Date: Slbil (P National City Initials: Date: A Reason to Survive I ARTS Changing the life trajectory of youth through the arts and creativity APPENDIX B PROJECT SCHEDULE March 3/7: Steering Group Meeting #1 5:00 pm to 6:30 pm Location: ARTS Center April 4/4: Community Design Meeting 6:00 pm to 8:00 pm Location: ARTS Center 4/5 — 4/7: Design Charrette 9:00 am to 4:00 pm Location: ARTS Center 4/7: Community Open House 6:00 pm to 7:00 pm Location: ARTS Center 4/11: Steering Group Meeting #2 5:00 pm to 6:30 pm Location: ARTS Center May 5/7: Early Success Art -making Workshops 1:00 pm to 4:00 p.m. Location: ARTS Center 5/9: Steering Group Meeting #3 5:00 pm to 6:30 pm Location: ARTS Center 5/21: Early Success Art -making Workshops 1:00 pm to 4:00 pm Location: ARTS Center June 6/2 — 6/5: Project Build 9:00 am to 4:00 pm Location: On -site (Paradise Creek) ARTS I A Reason To Survive: Paradise Creek Page 5 of 6 Educational Gathering Place 200 E 12th Street National City, CA 91950 Phone: 619297.2787 Web; www.areasontosurvive.org A Reason To Survive Initialsf. Date/0//O National City Initials: Date: A Reason to Survive I ARTS Changing the life trajectory of youth through the arts and creativity APPENDIX C PROJECT RENDERING 200E 12t Street National City, CA 91950 Phone: 619.297.2787 Web: www.areasontosurvive.org ARTS I A Reason To Survive: Paradise Creek Page 6 of 6 �j / Educational Gathering Place A Reason To Survive Initials/�l� Date: 1 National City Initials: Date: -{- EXHIBIT "A" A Reason to Survive I ARTS Changing the life trajectory of youth through the arts and creativity Mr. Stephen Manganiello Director of Public Works/City Engineer National City Engineer Division 1243 National City Blvd. National City, CA 91950 5/6/2016 Dear Steve: 200E 12'" Street National City, CA 91950 Phone: 619.297.2787 Web: www.areasontosurvive.org A Reason to Survive (ARTS) respectfully submits a proposal to National City for art and design services for a community art project in Kimball Park adjacent to Paradise Creek. For the purposes of this proposal, the project will be referred to as Paradise Creek Educational Gathering Place, located at 141-229 E. 16th Street, National City, CA. PARADISE CREEK EDUCATIONAL GATHERING PLACE SCOPE OF WORK I. PROJECT OVERVIEW It is our understanding that the City of National City received a Prop 84 Storm Water Grant Program grant from the State Water Resources Control Board to install multiple bioretention areas and constructed wetlands at Kimball Park and restore approximately 1,050 linear feet of Paradise Creek within Kimball Park. Per the City's grant agreement with the State, the City is required to create an educational gathering place near the constructed wetland and creek restoration that includes installation of a minimum of three educational/interpretive signs and five benches. In order to meet the City's grant requirements, ARTS, in collaboration with local artists, middle and high school students, and community volunteers, will create an educational gathering place near the constructed wetland and creek restoration. The project will include a gateway with educational elements to overlook the wetlands at the south entrance of Kimball Park. The community will be engaged in the design and build of all aspects of the project through facilitated community design meetings and a project build. II. PROJECT ACTIVITIES A. Design Component The design will include landscape features consistent with the City's Capital Improvement Program (CIP), including the following: ■ Artistic representation of the storm water and tidal flow etched and painted into the concrete walking path; ARTS l A Reason To Survive: Paradise Creek Page 1 of 6 Educational Gathering Place A Reason To Survive Initials: Date: National City Initials: Date: A Reason to Survive I ARTS Changing the life trajectory of youth through the arts and creativity 200 E I2t Street National City, CA 91950 Phone. 619.297.2787 Web: www areasontosurvive.org • Landscaping "swales" that mimic the storm water collection systems throughout NC using the same boulders and river rocks; • 8-10 benches made of recycled concrete material from the old riverbed; • 3 artistic signs on storm water education; • Sculptural elements that emit light (as beacons might) and offer conceptual representation of the birds of southern California that will populate the area thanks to the naturalization of the creek and filtering of storm water. The preliminary design was previously vetted through City staff and the Public Art Committee for consistency review. See Appendix C for rendering. The project scope and public art design elements were found to be consistent with the City's Public Art Program, CIP and grant requirements. B. Engineering ARTS will ensure that all design elements requiring engineering and/or permitting is determined through consultations with City staff and/or their engineering consultants, and subsequently submitted to the National City Engineering Division for review and approval. III. COMMUNITY ENGAGEMENT A. Steering Group A Steering Group, comprised of 8-10 individuals, will serve as a working group and help to advise the project on a monthly basis. Members include: NC Public Library, ARTS youth apprentices, NC Community Services, NC Engineering & Public Works, Olivewood Gardens, San Diego Community Garden Network, and Health & Human Services Agency. Guidance includes, but is not limited to, participant outreach, securing in -kind materials, and advocating for the project. B. Key Partnerships Key partners for this Project include, but are not limited to, the City of National City, Olivewood Gardens, National City Public Library, Boys and Girls Club of America, National City Middle School, Sweetwater High School, San Diego Community Garden Network, Health and Human Services Agency, and National City Nutrition Center. C. Volunteer Participants ARTS will engage approximately 200 youth and adults from National City and surrounding communities in the design and build of Paradise Creek Educational Gathering Place. Participants will be invited to attend a Community Design Workshop, Open House, Early Success Art -making Workshops and the culminating Build. D. Youth Apprenticeships ARTS will partner with Sweetwater High School and other local high schools to offer approximately four (4) paid apprenticeships for youth to learn workforce development skills ARTS 1 A Reason To Survive: Paradise Creek Page 2 of6 Educational Gathering Place A Reason To Survive Initials: National City Initials: Date;>/ %6 Date: A Reason to Survive I ARTS Changing the life trajectory of youth through the arts and creativity 200 E 12th Street National City, CA 91950 Phone: 619,2972787 Web www areasontosurvive.org from professional artists. Apprenticeships include one (1) Landscape Architecture, two (2) 3D Design & Fabrication one (1) Photojournalism position. Apprentices will work with professional artists approximately 8-10 hours per week during the Project. ARTS will also offer Service Learning hours for interested students. IV. ARTISTS A. Rooted in Place Landscape Architecture and Consulting (Rooted) will serve as the Project Manager / Lead Designer, and be responsible for designing and implementing the project. Rooted is trained in the Pomegranate Center methodology, and has served as the Project Manager for two of ARTS previous gathering place projects — Manzanita Gathering Place (2013, City Heights) and Park & Lot Gathering Place (2015, National City). B. ARTS conducted an artist search for two Support Artists by means of a Request for Qualifications. Brennan Hubble and Vicki Leon, public artists with professional experience in 3D Design and Fabrication, were selected by an art committee and are employed with a work -for -hire agreement. Both are Pomegranate Center fellows, and have participated on two or more gathering places led by ARTS. V. SCHEDULE Planning for the Project will begin in February, with completion of final design in May. The installation and build will occur June 2, 3, 4 and 5. The Project will be finalized by June 30, 2016. Please see Appendix B for key dates associated with this Project timeline. ARTS 1 A Reason To Survive: Paradise Creek Educational Gathering Place Page 3 of 6 A Reason To Survive Initials: Date: $7co"' National City Initials: Date: A Reason to Survive I ARTS Changing the life trajectory of youth through the arts and creativity APPENDIX A PROJECT SITE MAP ARTS I A Reason To Survive: Paradise Creek Page 4 of 6 Educational Gathering Place A Reason To Survive Initial) National City Initial 200E 12th Street National City, CA 91950 Phone: 619.297.2787 Web. www.areasontosurvive.org Date: 1 . Date: A Reason to Survive I ARTS Changing the life trajectory of youth through the arts and creativity APPENDIX B PROJECT SCHEDULE March 3/7: Steering Group Meeting #1 5:00 pm to 6:30 pm Location: ARTS Center April 4/4: Community Design Meeting 6:00 pm to 8:00 pm Location: ARTS Center 4/5 —4/7: Design Charrette 9:00 am to 4:00 pm Location: ARTS Center 4/7: Community Open House 6:00 pm to 7:00 pm Location: ARTS Center 4/11: Steering Group Meeting #2 5:00 pm to 6:30 pm Location: ARTS Center May 5/7: Early Success Art -making Workshops 1:00 pm to 4:00 p.m. Location: ARTS Center 5/9: Steering Group Meeting #3 5:00 pm to 6:30 pm Location: ARTS Center 5/21: Early Success Art -making Workshops 1:00 pm to 4:00 pm Location: ARTS Center June 6/2 — 6/5: Project Build 9:00 am to 4:00 pm Location: On -site (Paradise Creek) ARTS I A Reason To Survive: Paradise Creek Page 5 of6 Educational Gathering Place 200 E 121h Street National City, CA 91950 Phone: 619.2972787 Web: www areasontosurvive.org A Reason To Survive Initials Date: 5/(0 4 National City Initials: Date: A Reason to Survive I ARTS Changing the life trajectory of youth through the art.: and ,...reat i APPENDIX C PROJECT RENDERING ARTS I A Reason To Survive: Paradise Creek Page 6 of 6 Educational Gathering Place 200 F. 12th Street National City, CA 91950 Phone- 619,297.2787 Web www areasontosuryive_org A Reason To Survive Initials: Date:5/4/A0 National City Initial Date: A REASON TO SURVIVE ARTS Staff Cost Sheet Director of Programs $37/ hour Director of Operations $37/ hour Community Arts Manager $27/ hour Director of Creativity $25/ hour Empower Manager $25/ hour Media Arts Department Lead $25/ hour Youth Apprentices $12/ hour Outreach Coordinator $20/ hour (in -kind, VISTA position) Project Manager/ Lead Designer varies according to scope of work Support Artist varies according to scope of work ARTS I A Reason To Survive 200 East 121" Street National City, California 91950 Tel 619.297.ARTS (2787) Fax 866.246.5811 Web A ReasonToSurvive.org Tax ID 33-0963135 AREASOI OP ID: WG A --- CERTIFICATE OF LIABILITY INSURANCE �� DA05/09/2016TE Y) 05/0912016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Johnson & Wood Ins Serv, A Div of Hub Intl Ins Sery Inc 5731 Palmer Way, Suite D Carlsbad, CA 92010 Ed Johnson CONTACT Ed Johnson NAME: (AJCO,, N , E:t):760-603-0131 FAX No): 760-603-8135 E-MAIL ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC # INSURER A: Philadelphia Indemnity Ins Co 18058 INSURED A Reason to Survive 200 E. 12th. 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(Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below Y / N N / A 9037947 12/20/2015 12/20/2016 X WC STATU- TORY LIMITS OTH- ER E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 E.L. DISEASE - POLICY LIMIT $ 1,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) City of National City is named as additional insured/landlord as respects to premises located at 200 East 12th Street; National City, CA 91950 CERTIFICATE HOLDER CANCELLATION CITNATI City of National City 1243 National City Blvd National City, CA 91950 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ACORD 25 (2010/05) © 1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD :r*J•ijj AI 11 AU S CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950-4397 619-336-4228 phone / 619-336-4229 fax Michael R. Dalla, CMC - City Clerk A REASON TO SURVIVE (ARTS) Paradise Creek Educational Gathering Place Judy Hernandez (Engineering/Public Works) Forwarded Copy of Agreement to ARTS