Loading...
HomeMy WebLinkAboutA Reason to Survive - Art and Design Services to Create Two (2) Creative Placemaking Projects - 2017AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND A REASON TO SURVIVE, INC. (ARTS) THIS AGREEMENT is entered into on this 19th day of December, 2017, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and A REASON TO SURVIVE, INC., a California non-profit corporation (ARTS). RECITALS WHEREAS, 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, ARTS applied for and received a $65,000 Creative California Communities (CCC) grant from the California Arts Council to lead the development of two creative placemaking projects that incorporate art, health and community engagement, located in the Westside (Old Town) neighborhood of National City, California; WHEREAS, the first project will construct a public gathering place and storefront renovation at the northwest corner of the intersection of Coolidge Avenue and W. 16th Street, with a focus on providing children and residents access to healthy foods; WHEREAS, the second project will construct a public gathering place in Paradise Creek Park, with a focus on providing children and residents access to art and education; WHEREAS, the CCC grant requires a "one-to-one" match in the amount of $65,000, for a total project cost of $130,000, and the CITY agrees to fund the $65,000 match to assist ARTS with development of the projects for the benefit of the community; WHEREAS, the CITY's matching funds shall only be used for project improvements located within the public rights of way; WHEREAS, the CITY and ARTS previously entered into a thirty-six month Maintenance and Operating (M&O) Agreement, dated December 5, 2017, wherein ARTS agreed to maintain and operate the City -owned property located at 200 E. 12th Street as an Arts Center for the community's benefit to enrich the lives of National City residents by providing arts, culture and educational resources; WHEREAS, per the terms of the M&O Agreement, ARTS is required to deliver a minimum of $125,000 in public / capital art projects per year; WHEREAS, ARTS contribution of $65,000 towards the capital art improvements identified and funded by the CCC grant and further defined in this Agreement, would be applied towards ARTS' annual public art requirement under the M&O Agreement; WHEREAS, the CITY'S contribution of $65,000 towards the capital art improvements identified by the CCC grant and further defined in this Agreement, shall be considered separate and distinct from requirements under the M&O Agreement, and therefore, will not relieve ARTS of its obligations under the M&O Agreement; WHEREAS, based on review of ARTS' performance and qualifications delivering capital art projects through community engagement, the CITY has determined that ARTS, a California non-profit corporation, is qualified by experience and ability to perform the services desired by the CITY, and ARTS is willing to perform such services; WHEREAS, the CITY has further determined that ARTS is skilled in delivering capital art projects, which beautify the community, and is capable of lifting the spirits of residents and visitors of National City; WHEREAS, ARTS agrees that upon completion of the projects, ownership of the physical works of art installed within public rights of way shall be transferred to the CITY, and ARTS waives and releases all rights of ownership to those works of art. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF ARTS. The CITY agrees to engage ARTS to provide art and design services to lead the development of two creative placemaking projects that incorporate art, health and community engagement, located in the Westside (Old Town) neighborhood of National City, California, and ARTS agrees to perform the services set forth here in accordance with all terms and conditions contained herein. ARTS represents that all services shall be performed directly by ARTS staff or under direct supervision of ARTS. 2. PURPOSE. The CITY hereby commissions ARTS to oversee the conceptualization, creation, design, and community build of two creative placemaking projects as generally described in Section 4 below. ARTS 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 December 5, 2017. The duration of this Agreement is for the period of December 5, 2017 through June 30, 2018. 4. SCOPE OF SERVICES. ARTS will perform services as set forth in the attached Exhibit "A" to deliver two community art projects referred to as Westside / Paradise Creek Public Gathering Places (the "Work"). Standard Agreement Page 2 of 13 Revised December 2016 ARTS City of National City and ARTS 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. ARTS shall keep staff and City Council advised of the progress on the project. The CITY may unilaterally, or upon request from ARTS, from time to time reduce or increase the Scope of Services to be performed by ARTS under this Agreement. Upon doing so, the CITY and ARTS 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. 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. ARTS shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for ARTS. ARTS' Executive Director, thereby is designated as the Project Director for ARTS. 6. DESCRIPTION OF THE WORK. A. The first project will construct a public gathering place and storefront renovation at the northwest corner of the intersection of Coolidge Avenue and W. 16th Street, with a focus on providing children and residents access to healthy foods B. The second project will construct a public gathering place in Paradise Creek Park, with a focus on providing children and residents access to art and education. 7. PHASES OF WORK. Not applicable. 8. SCHEDULE. All work shall be completed no later than June 30, 2018. 9. COMPENSATION AND PAYMENT. The CITY shall contribute up to $65,000 in matching funds to support ARTS in meeting their CCC grant match requirement. Payment is subject to ARTS completing their share of the project improvements, which is valued at $65,000, for a total estimated project cost of $130,000. Compensation for ARTS shall be based on monthly billings covering actual work performed. Billings shall include labor classifications, respective rates, hours worked and also materials, if any. A Budget Detail summarizing estimated project costs is presented in Exhibit "A." Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with the scope of work, as determined by the CITY. ARTS 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 ARTS and the CITY cannot agree to the quality or acceptability of the work, the Standard Agreement Page 3 of 13 Revised December 2016 ARTS City of National City and manner of performance and/or the compensation payable to ARTS in this Agreement, the CITY or ARTS shall give to the other written notice. Within ten (10) business days, ARTS 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 ARTS. 11. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The Memoranda, Reports, Maps, Drawings, Plans, Specifications, and other documents prepared by ARTS 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. Contemporaneously with the transfer of documents, ARTS hereby assigns to the CITY, and ARTS thereby expressly waives and disclaims any copyright in, and the right to reproduce, all written material, drawings, plans, specifications, or other work prepared under this Agreement, except upon the CITY'S prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. ARTS shall, upon request of the CITY, execute any further document(s) necessary to further effectuate this waiver and disclaimer. ARTS agrees that the CITY may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium, or method utilize ARTS' written work product for the CITY'S purposes, and ARTS expressly waives and disclaims all rights mentioned in Section 15. Any modification or reuse by the CITY of documents, drawings, or specifications prepared by ARTS shall relieve ARTS from liability under Section 23, but only with respect to the effect of the modification or reuse by the CITY, or for any liability to the CITY should the documents be used by the CITY for some project other than what was expressly agreed upon within the Scope of Services of this project, unless otherwise mutually agreed. 12. 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 venturers with one another. Neither ARTS nor ARTS' 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, unemployment, or workers' compensation insurance. This Agreement contemplates the personal services of ARTS and the ARTS' 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 ARTS and its employees. Neither this Agreement nor any interest herein may be assigned by ARTS without the prior written consent of the CITY. Nothing herein contained is intended to prevent ARTS from employing or hiring as many employees, or subconsultants, as ARTS may deem necessary for the proper and efficient performance of this Agreement. All agreements by ARTS with its subconsultants shall require the subconsultant(s) to adhere to the applicable terms of this Agreement. 13. RISK OF LOSS AND INSURANCE. ARTS shall bear all risk of loss or damage to the Work until it is delivered and installed at the site. Standard Agreement Page 4 of 13 Revised December 2016 ARTS City of National City and 14. REPRODUCTIONS. ARTS 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 ARTS. 15. OWNERSHIP RIGHTS AND LICENSES. Consistent with Section 11 of this Agreement, professional artists under contract with ARTS for the purpose of performing the Work are required to adhere to the applicable terms of this Agreement, including the provisions of this Section 15 and Section 32. 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. ARTS 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. ARTS 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 15. The CITY may provide appropriate credit to ARTS 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 ARTS 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. ARTS agrees that the CITY may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium, or method utilize ARTS' written work product for the CITY'S purposes, and ARTS 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. The provisions of this Section 15 shall survive the termination of this Agreement. 16. REPAIRS. To the extent practical, all repairs and restorations made during the lifetime of ARTS shall have ARTS' approval. To the extent practical, the CITY shall give ARTS the opportunity to perform the repairs and restoration at a reasonable fee. 17. PROCESS DOCUMENTATION. ARTS shall document, photographically and in writing ("Documentation"), 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. Consistent with Sections 23 and 32, ownership of the Documentation shall pass to and become property of the CITY once received by the CITY. Standard Agreement Page 5 of 13 Revised December 2016 ARTS City of National City and 18. CONTROL. Neither the CITY nor its officers, agents, or employees shall have any control over the conduct of ARTS or any of ARTS' employees, except as herein set forth, and ARTS or ARTS' agents, servants, or employees are not in any manner agents, servants, or employees of the CITY, it being understood that ARTS, its agents, servants, and employees are as to the CITY wholly independent consultants, and that ARTS' obligations to the CITY are solely such as are prescribed by this Agreement. 19. COMPLIANCE WITH APPLICABLE LAW. ARTS, 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. ARTS and each of its subconsultants, shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 20. LICENSES, PERMITS, ETC. ARTS represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. ARTS represents and covenants that ARTS 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 ARTS to practice its profession. 21. STANDARD OF CARE. A. ARTS, 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 ARTS' trade or profession currently practicing under similar conditions and in similar locations. ARTS shall take all special precautions necessary to protect ARTS' 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. B. Unless disclosed in writing prior to the date of this Agreement, ARTS 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 ARTS' professional performance or the furnishing of materials or services relating thereto. C. ARTS is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project ARTS 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 ARTS has notified the CITY otherwise, ARTS warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by ARTS to use due diligence under this sub -paragraph will render ARTS 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. 22. NON-DISCRIMINATION PROVISIONS. ARTS 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. ARTS will take positive action to insure that applicants are employed without regard to their age, race, Standard Agreement Page 6 of 13 City of National City and Revised December 2016 ARTS 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. ARTS 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. 23. CONFIDENTIAL INFORMATION. The CITY may from time to time communicate to ARTS certain confidential information to enable ARTS to effectively perform the services to be provided herein. ARTS shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. ARTS 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 23, 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 ARTS, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of ARTS without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to ARTS 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. ARTS 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, ARTS 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. ARTS shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of this Section 23. 24. INDEMNIFICATION AND HOLD HARMLESS. ARTS agrees to defend, indemnify and hold harmless the City of National City, its officers, officials, agents, employees, and volunteers against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, 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 ARTS' 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, employees or volunteers. CITY will cooperate reasonably in the defense of any action, and ARTS shall employ competent counsel, reasonably acceptable to the City Attorney. 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. 25. WORKERS' COMPENSATION. ARTS 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 Standard Agreement Page 7 of 13 City of National City and Revised December 2016 ARTS amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, employees, and volunteers 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 ARTS under this Agreement. 26. INSURANCE. ARTS, 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 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, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of either $2,000,000 per occurrence and $4,000,000 aggregate, or $1,000,000 per occurrence and $2,000,000 aggregate with a $2,000,000 umbrella policy, covering all bodily injury and property damage arising out of its operations, work, or performance under this Agreement. The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". The "project" or "location" should be noted with specificity on an endorsement that shall be incorporated into the policy. 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, officials, 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's Risk Manager, at the address listed in subsection G below, 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. The Certificate Holder for all policies of insurance required by this Section shall be: Standard Agreement Page 8 of 13 Revised December 2016 ARTS City of National City and City of National City c/o Risk Manager 1243 National City Boulevard National City, CA 91950-4397 H. Insurance shall be written with only insurers authorized to conduct business in Californiathat hold a current policy holder's alphabetic and financial size category rating of not less than A:VII according to the current Best's Key Rating Guide, or a company of 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. I. 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. J. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. K. If the CONSULTANT maintains broader coverage or higher limits (or both) than the minimum limits shown above, the CITY requires and shall be entitled to the broader coverage or higher limits (or both) maintained by the CONSULTANT. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY. 27. 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. 28. TERMINATION. A. This Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 60-day's written notice to ARTS. During said 60-day period ARTS 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 ARTS in Standard Agreement Page 9 of 13 Revised December 2016 ARTS City of National City and 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 ARTS as provided for herein. D. In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by ARTS, whether paper or electronic, shall immediately become the property of and be delivered to the CITY, and ARTS 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 ARTS' breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 15. E. The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting ARTS; (2) a reorganization of ARTS for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of ARTS. 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 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 91950-4397 To ARTS: Executive Director A Reason to Survive, Inc. 200 E. 12th Street National City, CA 91950 Standard Agreement Page 10 of 13 Revised December 2016 ARTS City of National City and 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, ARTS 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. ARTS also agrees not to specify any product, treatment, process or material for the project in which ARTS has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. ARTS shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. ARTS shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CITY in which ARTS has a financial interest as defined in Government Code Section 87103. ARTS 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, ARTS shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, ARTS shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which ARTS shall obtain from the City Clerk. ARTS 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 ARTS. 31. PREVAILING WAGES. State prevailing wage rates may apply to work performed under this Agreement. State prevailing wages rates apply to all public works contracts as set forth in California Labor Code, including but not limited to, Sections 1720,1720.2, 1720.3, 1720.4, and 1771. ARTS is solely responsible to determine if State prevailing wage rates apply and, if applicable, pay such rates in accordance with all laws, ordinances, rules, and regulations. 32. WAIVER. Due to the nature of the work of art and the site on which it is installed, ARTS 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. ARTS agrees that upon completion, ownership in the physical work of art which is created pursuant to this Agreement shall be transferred to and shall vest in the CITY, and ARTS 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. ARTS 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. The provisions of this Section 32 shall survive the termination of this Agreement. Standard Agreement Page 11 of 13 Revised December 2016 ARTS City of National City and 33. 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 exhibits, schedules, or provisions thereof conflict or are inconsistent with the terms and conditions contained in this Agreement, the terms and conditions 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. 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. Subcontractors or Subconsultants. The CITY is engaging the services of ARTS identified in this Agreement. ARTS shall not subcontract any portion of the work, unless such subcontracting was part of the original proposal or is allowed by the CITY in writing. In the event any portion of the work under this Agreement is subcontracted, the subconsultant(s) shall be required to comply with and agree to, for the benefit of and in favor of the CITY, both the insurance provisions in Section 17 and the indemnification and hold harmless provision of Section 15 of this Agreement. M. 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 Standard Agreement Page 12 of 13 Revised December 2016 ARTS City of National City and 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) Leslie Deese, City Manager B Fabienne Hanks, Board Chair a Montgomery, Board Member APPROVED AS TO FORM: Angil P. Morris -Jones By: j Roberto M. Contreras Deputy City Attorney Standard Agreement Page 13 of 13 Revised December 2016 ARTS City of National City and EXHIBIT "A" - BUDGET DETAIL A. PERSONNEL EXPENSES JOB TITLE (# OF STAFF) RATE OF PAY CCC GRANT MATCHING FUNDS 1. ARTISTIC Project Manager/Lead Designer $45-$55/hr $10,000 $25,000 Support Artist $30/hr $20,000 Student Apprentice (6-8) $11/hr $15,000 2. ADMINISTRATIVE Community Arts Manager (1) $28/hr $0 Student Apprentices Manager (1) $26/hr $0 Artistic Director& Managing Director $38/hr $0 3. TECHNICAL University of San Diego CasterCenter Evaluation Consultants $10,000 per service (spread across multiple projects) $0 SUBTOTAL: Personnel Expenses $45,000 $25,000 B. OPERATING / PRODUCTION EXPENSES CCC GRANT MATCHING FUNDS 4. PROJECT MATERIALS $19,000 $40,000 5. DOCUMENTATION & MARKETING SUPPLIES $1,000 6. GENERAL OPERATING $0 SUBTOTAL: Operating / Production Expenses $20,000 $40,000 TOTAL EXPENSES $65,000 $65,000 �"—, AKeA50N-02 '41c.. CERTIFICATE OF LIABILITY INSURANCE CCHACON DA'E""'DD/"`Y) 09/14/2017 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER HUB International Insurance Services Inc. 5731 Palmer Way, Suite D Carlsbad, CA 92010 NAM@• ci PHONE (aJc, No xt): (760) 603-0131 I (AC, No): ADDRESS: INSURERR(RE AFFORDING COVERAGE NAIL I INSURER A : Philadelphia Indemnity insurance Company 18058 INSURED A Reason to Survive 200 E. 12th. St National City, CA 91953 INSURER g . State Compensation insurance Fund of California 35076 INSURER c ; INSURER D ; POURER E : INSURER F : COVERAGE CERTIFICATE NUMBER: • THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLIC ES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADOL INSD BUBR V/VD POLICY NUMBER POLICY EFF IMMJDDIYYYY) 07/01/2017 POLICY P AMMMIIDDDD 07/01/2018 LIMITS A X COMMERCIAL GENERAL UAAILRY [ X I OCCUR X PHPK1512422 OCCURRENCE 1,000,000 CLAMS -MADE _EACH I TOI N D cal _$ $ 100,000 MED EXP (Any one person) $ 5,000 PERSONAL & ADV INJURY $ 1,000,000 (aN'LTELINITAPPLI i PER ILOC - AGGREGATE $ 2,000,000 POLICY JE tt Fla PRODUCTS- COMP/OP AGG $ 2,000,000 OTHER $ A AUTOMOBILE LtAEILnY ANYAUTO ONLY AUTOSD AUTO N X PHPK1512422 07/01/2017 07/01/2018 (COIND EsaBdden SINGLE LIMIT $ 1,000,000 X BODILY INJURY/Perperson) $ BODILY INJURY (Per accident $ E (ODd7dOnL) $ A X UMBRELLA LIAR rX EXCESSLLAB OCCUR CLAIMS•MAOE PHUB545546 07/01/2017 07/01/2018 EACH OCCURRENCE $ 3,000,000 AGGREGATE 1 DPI�) X�, R��FTAFMqTTION$ 10,000 Prod/ComplOpspT�} $ 3,000,000 B A NDREMPLOYERS LIABILITY ANY F CPREO�PIBETBOERIPARTHERJEXECUTIVE Y/N OFFiICERIMEMBE; EXCLUDED? ` N iM Oalory Mt NH Dtye8e daaaue under DESCRI.cta under AT(ONS below N /A X 9037947 12/20/2016 12/20M017 X Mat EFL EL EACH ACCIDENT $ 1,000,000 E.L DISEASE - EA EMPLOYEE $ 1,000,000 EL DISEASE -POLICY LIMIT $ 1,000,000 DESCR$'TION OF OPERATIONS! LOCATIONS/VEHICLES ,,�aCORD 101, Addltleral Rernarta Schedule, may Da ICecht_M If molt epees is required) The City of National City, Its elected officials, officers, agents, employees and volunteers are named as additional Insured per General Liability form #PI-GLD-HS(10/11), and Auto form SCA 20 48 02 99. When required by written contrail. CERTIFICATE HOLDER CANCELLATION City of National City c/o Risk Manager 1243 National City Blvd National City, CA 91950-4397 ACORD 25 (2016/03) SHOULD ANY OF THE ABOVE DESCRIBED POUCIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL RE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. C 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD PI-GLD-HS (10/11) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. GENERAL LIABILITY DELUXE ENDORSEMENT: HUMAN SERVICES This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE It is understood and agreed that the following extenslons only apply in the event that no other specific coverage for the indicated loss exposure Is provided under this policy. If such specific coverage applies, the terms, conditions and limits of that coverage are the sole and exclusive coverage applicable under this policy, unless otherwise noted on this endorsement. The following is a summary of the Limits of Insurance and additional coverages provided by this endorsement. For complete details on specific coverages, consult the policy contract wording. Coverage Applicable Limit of Insurance Page # Extended Property Damage Included 2 Limited Rental Lease Agreement Contractual Liability $50,000 limit 2 Non -Owned Watercraft Less than 58 feet 2 Damage to Property You Own, Rent, or Occupy $30,000 limit 2 Damage to Premises Rented to You $1,000,000 3 HIPAA Clarification 4 Medical Payments $20,000 5 Medical Payments — Extended Reporting Period 3 years 5 Athletic Activities Amended 5 Supplementary Payments — Ball Bonds $5,000 5 Supplementary Payment — Loss of Earnings $1,000 per day 5 Employee Indemnification Defense Coverage $25,000 5 Key and Lock Replacement — Janitorial Services Client Coverage $10,000 limit 6 Additional Insured — Newly Acquired Time Period Amended 6 Additional Insured — Medical Directors and Administrators included 7 Additional Insured — Managers and Supervisors (with Fellow Employee Coverage) Included 7 Additional Insured — Broadened Named Insured Included 7 Additional Insured — Funding Source Included 7 Additional Insured — Home Care Providers Included 7 Additional Insured — Managers, Landlords, or Lessors of Premises Included 7 Additional Insured — Lessor of Leased Equipment Included 7 Additional Insured — Grantor of Permits Included 8 Additional Insured — Vendor Included 8 Additional Insured — Franchisor Included 9 Additional Insured — When Required by Contract Included 9 Additional Insured — Owners, Lessees, or Contractors Included 9 Additional Insured — State or Political Subdivisions Included 10 Page 1 of 12 Includes copyrighted material of Insurance Services Office, Inc., with its permission. © 2011 Philadelphia Indemnity Insurance Company PI-GLD-HS (10/11) Duties in the Event of Occurrence, Claim or Suit Included 10 Unintentional Failure to Disclose Hazards Included 10 Transfer of Rights of Recovery Against Others To Us Clarification 10 Liberalization Included 11 Bodily Injury — includes Mental Anguish Included 11 Personal and Advertising injury — includes Abuse of Process, Discrimination Included 11 A. Extended Property Damage SECTION I — COVERAGES, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY, Subsection 2. Exclusions, Paragraph a. is deleted in its entirety and replaced by the following: a. Expected or Intended Injury "Bodily injury° or property damage" expected or intended from the standpoint of the insured. This exclusion does not apply to "bodily injury' or "property damage' resulting from the use of reasonable force to protect persons or property. B. Limited Rental Lease Agreement Contractual Liability SECTION I — COVERAGES, COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY, Subsection 2. Exclusions, Paragraph b. Contractual Liability is amended to include the following: (3) Based on the named insured's request at the time of claim, we agree to indemnify the named insured for their liability assumed in a contract or agreement regarding the rental or lease of a premises on behalf of their client, up to $50,000. This coverage extension only applies to rental lease agreements. This coverage is excess over any renter's liability insurance of the client. C. Non -Owned Watercraft SECTION I — COVERAGES, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY, Subsection 2. Exclusions, Paragraph g. (2) is deleted in its entirety and replaced by the following: (2) A watercraft you do not own that is: (a) Less than 58 feet long; and (b) Not being used to carry persons or property for a charge; This provision applies to any person, who with your consent, either uses or is responsible for the use of a watercraft. This insurance is excess over any other valid and collectible insurance available to the insured whether primary, excess or contingent. D. Damage to Property You Own, Rent or Occupy SECTION I — COVERAGES, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE Page2of12 Includes copyrighted material of Insurance Services Office, Inc., with its permission. © 2011 Philadelphia Indemnity insurance Company PI-GLD-HS (10/11) LIABILITY, Subsection 2. Exclusions, Paragraph j. Damage to Property, Item (1) is deleted in its entirety and replaced with the following: (1) Property you own, rent, or occupy, including any costs or expenses Incurred by you, or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another's property, unless the damage to property is caused by your client, up to a $30,000 limit. A client is defined as a person under your direct care and supervision. E. Damage to Premises Rented to You 1. If damage by fire to premises rented to you is not otherwise excluded from this Coverage Part, the word "fire" is changed to 'fire, lightning, explosion, smoke, or leakage from automatic fire protective systems" where it appears in: a. The last paragraph of SECTION I — COVERAGES, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY, Subsection 2. Exclusions; is deleted in its entirety and replaced by the following: Exclusions c. through n. do not apply to damage by fire, lightning, explosion, smoke, or leakage from automatic fire protective systems to premises while rented to you or temporarily occupied by you with permission of the owner. A separate limit of insurance applies to this coverage as described in SECTION III — LIMITS OF INSURANCE. b. SECTION III — LIMITS OF INSURANCE, Paragraph 6. is deleted in its entirety and replaced by the following: Subject to Paragraph 5. above, the Damage To Premises Rented To You Limit is the most we will pay under Coverage A for damages because of "property damage' to any one premises, while rented to you, or In the case of damage by fire, lightning, explosion, smoke, or leakage from automatic fire protective systems while rented to you or temporarily occupied by you with permission of the owner. c. SECTION V — DEFINITIONS, Paragraph 9.a., is deleted in its entirety and replaced by the following: A contract for a lease of premises. However, that portion of the contract for a lease of premises that indemnifies any person or organization for damage by fire, lightning, explosion, smoke, or leakage from automatic fire protective systems to premises while rented to you or temporarily occupied by you with permission of the owner is not an "insured contract"; 2. SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS, Subsection 4. Other Insurance, Paragraph b. Excess Insurance, (1) (a) (II) is deleted in its entirety and replaced by the following: That Is insurance for fire, lightning, explosion, smoke, or leakage from automatic fire protective systems for premises rented to you or temporarily occupied by you with permission of the owner; 3. The Damage To Premises Rented To You Limit section of the Declarations is amended to the greater of: Page 3 of 12 Includes copyrighted material of Insurance Services Office, Inc., with its permission. © 2011 Philadelphia Indemnity Insurance Company PI-GLD-HS (10/11) a. $1,000,000; or b. The amount shown in the Declarations as the Damage to Premises Rented to You Limit. This is the most we will pay for all damage proximately caused by the same event, whether such damage results from fire, lightning, explosion, smoke, or Teaks from automatic fire protective systems or any combination thereof. F. HIPAA SECTION I — COVERAGES, COVERAGE B PERSONAL AND ADVERTISING INJURY LIABILITY is amended as follows: 1. Paragraph 1. Insuring Agreement is amended to include the following: We will pay those sums that the insured becomes legally obligated to pay as damages because of a "violation(s)" of the Health Insurance Portability and Accountability Act (HIPAA). We have the right and the duty to defend the insured against any "suit," "investigation," or "civil proceeding" seeking these damages. However, we will have no duty to defend the insured against any `suit" seeking damages, "investigation,' or 'civil proceeding" to which this insurance does not apply. 2. Paragraph 2. Exclusions is amended to include the following additional exclusions: This insurance does not apply to: a. Intentional, Willful, or Deliberate Violations Any willful, intentional, or deliberate "violation(s)" by any insured. b. Criminal Acts Any violation which results in any criminal penalties under the HIPAA. c. Other Remedies Any remedy other than monetary damages for penalties assessed. d. Compliance Reviews or Audits Any compliance reviews by the Department of Health and Human Services. 3. SECTION V — DEFINITIONS is amended to include the following additional definitions: a. "Civil proceeding" means an action by the Department of Health and Human Services (HHS) arising out of 'violations." b. "Investigation' means an examination of an actual or alleged'wiolation(s)" by HHS. However, "investigation' does not include a Compliance Review. c. 'Violation" means the actual or alleged failure to comply with the regulations Included in the H I PAA. Page 4 of 12 Includes copyrighted material of Insurance Services Office, Inc., with its permission. © 2011 Philadelphia Indemnity Insurance Company PI-GLD-HS (10/11) G. Medical Payments — Limit Increased to $20,000, Extended Reporting Period If COVERAGE C MEDICAL PAYMENTS is not otherwise excluded from this Coverage Part: 1. The Medical Expense Limit is changed subject to all of the terms of SECTION III - LIMITS OF INSURANCE to the greater of: a. $20,000; or b. The Medical Expense Limit shown in the Declarations of this Coverage Part. 2. SECTION I — COVERAGE, COVERAGE C MEDICAL PAYMENTS, Subsection 1. Insuring Agreement, a. (3) (b) is deleted in its entirety and replaced by the following: (b) The expenses are incurred and reported to us within three years of the date of the accident. H. Athletic Activities SECTION I — COVERAGES, COVERAGE C MEDICAL PAYMENTS, Subsection 2. Exclusions, Paragraph e. Athletic Activities is deleted in its entirety and replaced with the following: e. Athletic Activities To a person injured while taking part in athletics. I. Supplementary Payments SECTION I — COVERAGES, SUPPLEMENTARY PAYMENTS - COVERAGE A AND B are amended as follows: 1. b. is deleted in its entirety and replaced by the following: 1. b. Up to $5000 for cost of bail bonds required because of accidents or traffic law violations arising out of the use of any vehicle to which the Bodily Injury Liability Coverage applies. We do not have to furnish these. 1.d. is deleted in its entirety and replaced by the following: 1. d. All reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of the claim or "suit", Including actual loss of eamings up to $1,000 a day because of time off from work. J. Employee Indemnification Defense Coverage SECTION I — COVERAGES, SUPPLEMENTARY PAYMENTS — COVERAGES A AND B the following is added: We will pay, on your behalf, defense costs incurred by an °employee" in a criminal proceeding occurring in the course of employment. The most we will pay for any "employee° who is alleged to be directly involved in a criminal proceeding is $25,000 regardless of the numbers of "employees," claims or "suits' brought or persons or organizations making claims or bringing "suits. Page 5 of 12 Includes copyrighted material of Insurance Services Office, Inc., with its permission. © 2011 Philadelphia Indemnity Insurance Company PI-GLD-HS (10/11) K. Key and Lock Replacement — Janitorial Services Client Coverage SECTION I — COVERAGES, SUPPLEMENTARY PAYMENTS — COVERAGES A AND B is amended to include the following: We will pay for the cost to replace keys and locks at the "clients' premises due to theft or other loss to keys entrusted to you by your "client,' up to a $10,000 limit per occurrence and $10,000 policy aggregate. We will not pay for loss or damage resulting from theft or any other dishonest or criminal act that you or any of your partners, members, officers, "employees', "managers", directors, trustees, authorized representatives or any one to whom you entrust the keys of a "client' for any purpose commit, whether acting alone or in collusion with other persons. The following, when used on this coverage, are defined as follows: a. "Client" means an individual, company or organization with whom you have a written contract or work order for your services for a described premises and have billed for your services. b. "Employee" means: (1) Any natural person: (a) While in your service or for 30 days after termination of service; (b) Who you compensate directly by salary, wages or commissions; and (c) Who you have the right to direct and control while performing services for you; or (2) Any natural person who is furnished temporarily to you: (a) To substitute for a permanent "employee" as defined in Paragraph (1) above, who is on leave; or (b) To meet seasonal or short-term workload conditions; while that person is subject to your direction and control and performing services for you. (3) "Employee" does not mean: (a) Any agent, broker, person leased to you by a labor leasing firm, factor, commission merchant, consignee, independent contractor or representative of the same general character; or (b) Any "manager," director or trustee except while performing acts coming within the scope of the usual duties of en "employee." c. "Manager" means a person serving in a directorial capacity for a limited liability company. L. Additional Insureds SECTION II — WHO IS AN INSURED is amended as follows: 1. If coverage for newly acquired or formed organizations is not otherwise excluded from this Page6of12 Includes copyrighted material of Insurance Services Office, Inc., with its permission. © 2011 Philadelphia Indemnity Insurance Company PI-GLD-HS (10/11) Coverage Part, Paragraph 3.a. is deleted in its entirely and replaced by the following: a. Coverage under this provision is afforded until the end of the policy period. 2. Each of the following is also an insured: a. Medical Directors and Administrators — Your medical directors and administrators, but only while acting within the scope of and during the course of their duties as such. Such duties do not include the furnishing or failure to furnish professional services of any physician or psychiatrist in the treatment of a patient. b. Managers and Supervisors — Your managers and supervisors are also insureds, but only with respect to their duties as your managers and supervisors. Managers and supervisors who are your "employees` are also insureds for °bodily injury" to a co - "employee" while in the course of his or her employment by you or performing duties related to the conduct of your business. This provision does not change Item 2.a.(1)(a) as It applies to managers of a limited liability company. c. Broadened Named Insured — Any organization and subsidiary thereof which you control and actively manage on the effective date of this Coverage Part. However, coverage does not apply to any organization or subsidiary not named in the Declarations as Named Insured, if they are also insured under another similar policy, but for its termination or the exhaustion of its limits of insurance. d. Funding Source — Any person or organization with respect to their liability arising out of: (1) Their financial control of you; or (2) Premises they own, maintain or control while you lease or occupy these premises. This insurance does not apply to structural alterations, new construction and demolition operations performed by or for that person or organization. e. Home Care Providers — At the first Named Insured's option, any person or organization under your direct supervision and control while providing for you private home respite or foster home care for the developmentally disabled. f. Managers, Landlords, or Lessors of Premises — Any person or organization with respect to their liability arising out of the ownership, maintenance or use of that part of the premises leased or rented to you subject to the following additional exclusions: g. This insurance does not apply to: (1) Any "occurrence" which takes place after you cease to be a tenant in that premises; or (2) Structural alterations, new construction or demolition operations performed by or on behalf of that person or organization. Lessor of Leased Equipment — Automatic Status When Required In Lease Agreement With You — Any person or organization from whom you lease equipment when you and such person or organization have agreed in writing in a contract or agreement that such person or organization is to be added as an additional insured on your policy. Such person or Page 7 of 12 Includes copyrighted material of Insurance Services Office, Inc., with its permission. © 2011 Philadelphia Indemnity Insurance Company PI-GLD-HS (10/11) organization is an insured only with respect to liability for "bodily injury,' "property damage" or "personal and advertising injury" caused, in whole or in part, by your maintenance, operation or use of equipment leased to you by such person or organization. A person's or organization's status as an additional insured under this endorsement ends when their contract or agreement with you for such leased equipment ends. With respect to the insurance afforded to these additional insureds, this insurance does not apply to any 'occurrence' which takes place after the equipment lease expires. h. Grantors of Permits — Any state or political subdivision granting you a permit in connection with your premises subject to the following additional provision: (1) This insurance applies only with respect to the following hazards for which the state or political subdivision has issued a permit in connection with the premises you own, rent or control and to which this insurance applies: (a) The existence, maintenance, repair, construction, erection, or removal of advertising signs, awnings, canopies, cellar entrances, coal holes, driveways, manholes, marquees, hoist away openings, sidewalk vaults, street banners or decorations and similar exposures; (b) The construction, erection, or removal of elevators; or (c) The ownership, maintenance, or use of any elevators covered by this insurance. i. Vendors — Only with respect to "bodily injury" or "property damage" arising out of "your products" which are distributed or sold In the regular course of the vendor's business, subject to the following additional exclusions: (1) The insurance afforded the vendor does not apply to: (a) "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; (b) Any express warranty unauthorized by you; (c) Any physical or chemical change In the product made intentionally by the vendor; (d) Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then rcpadcaged in the original container; (e) Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; Demonstration, Installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product (f) Page 8 of 12 Includes copyrighted material of Insurance Services Office, Inc., with its permission. © 2011 Philadelphia Indemnity insurance Company j. PI-GLD-HS (10/11) (g) Products which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor, or (h) "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (i) The exceptions contained in Sub -paragraphs (d) or (f); or (ii) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. (2) This insurance does not apply to any insured person or organization, from whom you have acquired such products, or any ingredient, part or container, entering into, accompanying or containing. Franchisor — Any person or organization with respect to their liability as ttie grantor of a franchise to you. k. As Required by Contract — Any person or organization where required by a written contract executed prior to the occurrence of a loss. Such person or organization is an additional insured for "bodily injury," "property damage" or "personal and advertising injury" but only for liability arising out of the negligence of the named insured. The limits of insurance applicable to these additional insureds are the lesser of the policy limits or those limits specified in a contract or agreement. These limits are included within and not in addition to the limits of insurance shown in the Declarations I. Owners, Lessees or Contractors — Any person or organization, but only with respect to liability for "bodily injury," "property damage" or "personal and advertising injury" caused, in whole or in part, by: (1) Your acts or omissions; or (2) The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured when required by a contract. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: (a) All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or (b) That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. Page 9 of 12 Includes copyrighted material of Insurance Services Office, Inc., with its permission. © 2011 Philadelphia Indemnity Insurance Company PI-GLD-HS (10/11) m. State or Political Subdivisions — Any state or political subdivision as required, subject to the following provisions: (1) This insurance applies only with respect to operations performed by you or on your behalf for which the state or political subdivision has Issued a permit, and Is required by contract. (2) This insurance does not apply to: (a) "Bodily injury," "property damage" or "personal and advertising injury" arising out of operations performed for the state or municipality; or (b) "Bodily injury" or "property damage" included within the "products -completed operations hazard." M. Duties in the Event of Occurrence, Claim or Suit SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS, Paragraph 2. is amended as follows: a. is amended to include: This condition applies only when the "occurrence' or offense is known to: (1) You, if you are an individual; (2) A partner, if you are a partnership; or (3) An executive officer or insurance manager, if you are a corporation. b. is amended to include: This condition will not be considered breached unless the breach occurs after such claim or "suit" is known to: (1) You, if you are an individual; (2) A partner, if you are a partnership; or (3) An executive officer or Insurance manager, if you are a corporation. N. Unintentional Failure To Disclose Hazards SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS, 6. Representations is amended to include the following: It is agreed that, based on our reliance on your representations as to existing hazards, if you should unintentionally fail to disclose all such hazards prior to the beginning of the policy period of this Coverage Part, we shall not deny coverage under this Coverage Part because of such failure. O. Transfer of Rights of Recovery Against Others To Us SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS, 8. Transfer of Rights of Page 10 of 12 Includes copyrighted material of Insurance Services Office, Inc., with its permission. CO 2011 Philadelphia Indemnity Insurance Company PI-GLD-HS (10/11) Recovery Against Others To Us is deleted in its entirety and replaced by the following: If the insured has rights to recover all or part of any payment we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after Toss to impair them. At our request, the insured will bring "suit" or transfer those rights to us and help us enforce them. Therefore, the insured can waive the insurer's rights of recovery prior to the occurrence of a loss, provided the waiver is made in a written contract. P. Liberalization SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS, is amended to include the following: If we revise this endorsement to provide more coverage without additional premium charge, we will automatically provide the additional coverage to all endorsement holders as of the day the revision is effective in your state. Q. Bodily Injury — Mental Anguish SECTION V — DEFINITIONS, Paragraph 3. Is deleted in its entirety and replaced by the following: "Bodily injury" means: a. Bodily injury, sickness or disease sustained by a person, and Includes mental anguish resulting from any of these; and b. Except for mental anguish, includes death resulting from the foregoing (Item a. above) at any time. R. Personal and Advertising Injury — Abuse of Process, Discrimination If COVERAGE B PERSONAL AND ADVERTISING INJURY LIABILITY COVERAGE Is not otherwise excluded from thls Coverage Part, the definition of "personal and advertising injury" is amended as follows: 1. SECTION V— DEFINITIONS, Paragraph 14.b. is deleted in its entirety and replaced by the following: b. Malicious prosecution or abuse of process; 2. SECTION V — DEFINITIONS, Paragraph 14. is amended by adding the following: Discrimination based on race, color, religion, sex, age or national origin, except when: a. Done intentionally by or at the direction of, or with the knowledge or consent of: (1) Any insured; or (2) Any executive officer, director, stockholder, partner or member of the insured; b. Directly or indirectly related to the employment, former or prospective employment, termination of employment, or application for employment of any person or persons by an insured; Page 11 of 12 Includes copyrighted material of Insurance Services Office, Inc., with its permission. © 2011 Philadelphia Indemnity Insurance Company PI-GLD-HS (10/11) c. Directly or indirectly related to the sale, rental, lease or sublease or prospective sales, rental, lease or sub -lease of any room, dwelling or premises by or at the direction of any insured; or d. Insurance for such discrimination is prohibited by or held in violation of law, public policy, legislation, court decision or administrative ruling. The above does not apply to fines or penalties imposed because of discrimination. Page 12 of 12 Includes copyrighted material of Insurance Services Office, Inc., with its permission. © 2011 Philadelphia Indemnity Insurance Company POLICY NUMBER: PHPK1648807 COMMERCIAL AUTO CA20480299 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED INSURED This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM GARAGE COVERAGE FORM MOTOR CARRIER COVERAGE FORM TRUCKERS COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modi- fied by this endorsement. This endorsement Identifies person(s) or organization(s) who are "insureds` under the Who Is An Insured Provi- sion of the Coverage Form. This endorsement does not alter coverage provided in the Coverage Form. This endorsement changes the policy effective on the inception date of the policy unless another date is indicated below. Endorsement Effective: 7/01/2017 Counter ' (Authorized Representative) Named Insured: A Reason to Survive SCHEDULE Name of Person(s) or Organization(s): The City of National City, its elected officials, officers, agents, employees and volunteers (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to the endorsement.) Each person or organization shown in the Schedule is an "'nsurred" for Liability Coverage, but only to the extent that person or organization qualifies as an "insured" under the Who Is An Insured Provision contained in Section II of the Coverage Form. CA 20 48 02 99 Copyright, Insurance Services Office, Inc., 1998 Page 1 of 1 0 7NOOn,wr TED City of National City (To be submitted only when there are no employees subject to Workers' Compensation) DECLARATION AND ADDENDUM TO ALL CONTRACTS AWARDED TO: jai`/ I a .S `e / vi vlc f r✓C . (Company Name) or lee purpose of inducing the City of National City to go forward with any contracts awarded to l( PAS' o o S c-r, of v7E (Company), I declare as follows: s r PA- y authorized to execute this document on behalf of _(company) with respect to compliance with the California (name) , t 21/L-1 ty EC'47 P[� p(tit!e), am Workers' Compensation and Labor laws. All work required will be performed personally and solely by volunteers of A l' r. <430/✓ 11 v 5c.t',v/v>& (company), who are independent contractors. If, however, - IZ.(= DA) 1 o JVv(V(c (company) shall Averpe required to hire employees or Subcontractors to perform this contract 4 s' &/ /O SwRv/ter (company) shall obtain Workers' Compensation Insurance and/or provide proof of Workers' Compensation Insurance coverage to the City of National City. This document constitutes a declaration by Ff %t1 3 o I cf Q of v!i✓ (company) against its financial interest, relative to any claims which may be asserted under the California Workers' Compensation and/or Labor laws against the City of National City relating to any bid or contract awarded (� n�(f -4-1 (company). /C tS ^' J o -(�M'/(VV" (company) will defend, indemnify, and hold harmless the City of National City, its officers and employees, from any and all claims and liability, including Workers' Compensation claims and liability that may be asserted or established by any party in the event it hires an employee in violation of this addendum or if a volunteer of the organization makes a claim against or alleges liability of the City of National City for Workers' Compensation, and it will further indemnify the City of National City, its officers and employees, for all damages the City thereby suffers. I agree thAt these declarations shall constitute an addendum to any bid or contract awarded to: '. k / (t,(,14N v rC (company). Dated: KvAt-Ar [D , 20 (g. . (Insert company name in alf , ��- jJff//r B I — /(91gnature of Authorize " presentative) fiefs' 11;q1t-(D 4ArEC7aR (Name and Title) % RESOLUTION NO. 2017 — 238 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH A REASON TO SURVIVE, INC. (ARTS) TO LEAD THE DEVELOPMENT OF TWO CREATIVE PLACEMAKING PROJECTS THAT INCORPORATE ART, HEALTH AND COMMUNITY ENGAGEMENT, LOCATED IN THE WESTSIDE (OLD TOWN) NEIGHBORHOOD OF NATIONAL CITY FUNDED THROUGH A $65,000 CREATIVE CALIFORNIA COMMUNITIES GRANT FROM THE CALIFORNIA ARTS COUNCIL AWARDED TO ARTS AND $65,000 IN MATCHING CITY FUNDS 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; and WHEREAS, ARTS applied for and received a $65,000 Creative California Communities (CCC) grant from the California Arts Council to lead the development of two creative placemaking projects that incorporate art, health, and community engagement, located in the Westside (Old Town) neighborhood of National City; and WHEREAS, the first project will construct a public gathering place and storefront renovation at the northwest corner of the intersection of Coolidge Avenue and West 16th Street, with a focus on providing children and residents access to healthy foods; and WHEREAS, the second project will construct a public gathering place in Paradise Creek Park, with a focus on providing children and residents access to art and education; and WHEREAS, the CCC grant requires a "one-to-one" match in the amount of $65,000, for a total project cost of $130,000, and the City agrees to fund the $65,000 match to assist ARTS with development of the projects for the benefit of the community; and WHEREAS, the City's matching funds shall only be used for project improvements located within the public rights of way; and WHEREAS, the City and ARTS previously entered into a thirty-six (36) month Maintenance and Operating (M&O) Agreement, dated December 5, 2017, wherein ARTS agreed to maintain and operate the City -owned property located at 200 East 12th Street as an Arts Center for the community's benefit to enrich the lives of National City residents by providing arts, culture, and educational resources; and WHEREAS, per the terms of the M&O Agreement, ARTS is required to deliver a minimum of $125,000 in public/capital art projects per year; and WHEREAS, ARTS contribution of $65,000 towards the capital art improvements identified and funded by the CCC grant and further defined in the Agreement, would be applied towards ARTS' annual public art requirement under the M&O Agreement; and WHEREAS, the City's contribution of $65,000 towards the capital art improvements identified by the CCC grant and further defined in the Agreement, shall be Resolution No. 2017 — 238 Page Two considered separate and distinct from requirements under the M&O Agreement, and therefore, will not relieve ARTS of its obligations under the M&O Agreement; and WHEREAS, based on review of ARTS' performance and qualifications delivering capital art projects through community engagement, the City has determined that ARTS is qualified by experience and ability to perform the services desired by the City, and ARTS is willing to perform such services; and WHEREAS, ARTS agrees that upon completion of the projects, ownership of the physical works of art installed within public rights of way shall be transferred to the City, and ARTS waives and releases all rights of ownership to those works of art. NOW, THEREFORE, BE IT RESOLVED that the City Council hereby authorizes the City Manager to execute an Agreement with A Reason to Survive, Inc. (ARTS) to lead the development of two creative placemaking projects that incorporate art, health and community engagement, located in the Westside (Old Town) neighborhood of National City funded through a $65,000 Creative California Communities grant from the California Arts Council awarded to ARTS and $65,000 in matching City funds. PASSED and ADOPTED this 19th day of December, 2017. n Morrison, Mayor ATTEST: 2,,,e e. e i 4ael R. Della, , y Clerk APPROVED AS TO FORM: Passed and adopted by the Council of the City of National City, California, on December 19, 2017 by the following vote, to -wit: Ayes: Councilmembers Cano, Mendivil, Morrison, Rios, Sotelo-Solis. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Mayor of the City of National City, California a City Clerk of the City National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2017-238 of the City of National City, California, passed and adopted by the Council of said City on December 19, 2017. City Clerk of the City of National City, California By: Deputy CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: December 19, 2017 AGENDA ITEM NO. 8 EM TITLE: Resolution of the City Council of the City of National City authorizing the City Manager to execute an Agreement with A Reason to Survive, Inc. (ARTS) to lead the development of two creative placemaking projects that incorporate art, health and community engagement, located in the Westside (Old Town) neighborhood of National City funded through a $65,000 Creative California Communities grant from the California Arts Council awarded to ARTS and $65,000 in City matching funds. PREPARED BY: Stephen Manganiello PHONE: 619-336-4382 EXPLANATION: See attached. DEPARTMENT: Engineering/Public Works APPROVED BY: FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: Finance APPROVED: ( MIS Funds are available in the following CIP expenditure accounts through prior City Council appropriations: 296-409-500-598-6577 (Westside Mobility Improvements) - $25,000 001-409-500-598-1596 (WI-TOD / Paradise Creek Park Improvements) - $40,000 ENVIRONMENTAL REVIEW: Notice of Exemption will be prepared and filed with the County Recorder's Office. ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt resolution executing an Agreement with ARTS to lead the development of two creative placemaking projects that incorporate art, health and community engagement, located in the Westside (Old Town) neighborhood of National City. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: 1. Explanation 2. Agreement 3. Resolution ledsolalrdr No. 20/7-.2 38 Explanation: On December 5, 2017, City Council adopted Resolution No. 2017-237, which authorized the Mayor to execute a thirty-six month Maintenance and Operating (M&O) Agreement with A Reason to Survive, Inc. (ARTS), wherein ARTS agreed to maintain and operate the City -owned property located at 200 E. 12th Street as an Arts Center for the community's benefit to enrich the lives of National City residents by providing arts, culture and educational resources. Per the terms of the M&O Agreement, ARTS is required to deliver a minimum of $125,000 in public / capital art projects per year. In support of this requirement, ARTS was successful in receiving a $65,000 Creative California Communities (CCC) grant from the California Arts Council to lead the development of two creative placemaking projects that incorporate art, health and community engagement, located in the Westside (Old Town) neighborhood of National City. The first project will construct a public gathering place and storefront renovation at the northwest corner of the intersection of Coolidge Avenue and W. 16th Street, with a focus on providing children and residents access to healthy foods. The second project will construct a public gathering place in Paradise Creek Park, with a focus on providing children and residents access to art and education. The CCC grant requires a "one-to-one" match in the amount of $65,000, for a total project cost of $130,000. Since ARTS 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, staff desires to fund the $65,000 match to assist ARTS with development of the projects for the benefit of the community. Funding for the match is available through prior City Council Capital Improvement Program (CIP) appropriations as follows: Westside Mobility Improvements grant from SANDAG - $25,000 WI-TOD / Paradise Creek Park Improvements CIP - $40,000 AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND A REASON TO SURVIVE, INC. (ARTS) THIS AGREEMENT is entered into on this 19th day of December, 2017, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and A REASON TO SURVIVE, INC., a California non-profit corporation (ARTS). RECITALS WHEREAS, 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, ARTS applied for and received a $65,000 Creative California Communities (CCC) grant from the California Arts Council to lead the development of two creative placemaking projects that incorporate art, health and community engagement, located in the Westside (Old Town) neighborhood of National City, California; WHEREAS, the first project will construct a public gathering place and storefront renovation at the northwest corner of the intersection of Coolidge Avenue and W. 16th Street, with a focus on providing children and residents access to healthy foods; WHEREAS, the second project will construct a public gathering place in Paradise Creek Park, with a focus on providing children and residents access to art and education; WHEREAS, the CCC grant requires a "one-to-one" match in the amount of $65,000, for a total project cost of $130,000, and the CITY agrees to fund the $65,000 match to assist ARTS with development of the projects for the benefit of the community; WHEREAS, the CITY's matching funds shall only be used for project improvements located within the public rights of way; WHEREAS, the CITY and ARTS previously entered into a thirty-six month Maintenance and Operating (M&O) Agreement, dated December 5, 2017, wherein ARTS agreed to maintain and operate the City -owned property located at 200 E. 12th Street as an Arts Center for the community's benefit to enrich the lives of National City residents by providing arts, culture and educational resources; WHEREAS, per the terms of the M&O Agreement, ARTS is required to deliver a minimum of $125,000 in public / capital art projects per year; -1- WHEREAS, ARTS contribution of $65,000 towards the capital art improvements identified and funded by the CCC grant and further defined in this Agreement, would be applied towards ARTS' annual public art requirement under the M&O Agreement; WHEREAS, the CITY'S contribution of $65,000 towards the capital art improvements identified by the CCC grant and further defined in this Agreement, shall be considered separate and distinct from requirements under the M&O Agreement, and therefore, will not relieve ARTS of its obligations under the M&O Agreement; WHEREAS, based on review of ARTS' performance and qualifications delivering capital art projects through community engagement, the CITY has determined that ARTS, a California non-profit corporation, is qualified by experience and ability to perform the services desired by the CITY, and ARTS is willing to perform such services; WHEREAS, the CITY has further determined that ARTS is skilled in delivering capital art projects, which beautify the community, and is capable of lifting the spirits of residents and visitors of National City; WHEREAS, ARTS agrees that upon completion of the projects, ownership of the physical works of art installed within public rights of way shall be transferred to the CITY, and ARTS waives and releases all rights of ownership to those works of art. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF ARTS. The CITY agrees to engage ARTS to provide art and design services to lead the development of two creative placemaking projects that incorporate art, health and community engagement, located in the Westside (Old Town) neighborhood of National City, California, and ARTS agrees to perform the services set forth here in accordance with all terms and conditions contained herein. ARTS represents that all services shall be performed directly by ARTS staff or under direct supervision of ARTS. 2. PURPOSE. The CITY hereby commissions ARTS to oversee the conceptualization, creation, design, and community build of two creative placemaking projects as generally described in Section 4 below. ARTS 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 December 5, 2017. The duration of this Agreement is for the period of December 5, 2017 through June 30, 2018. 4. SCOPE OF SERVICES. ARTS will perform services as set forth in the attached Exhibit "A" to deliver two community art projects referred to as Westside / Paradise Creek Public Gathering Places (the "Work"). Standard Agreement Page 2 of 13 City of National City and Revised December 2016 ARTS -2- ARTS 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. ARTS shall keep staff and City Council advised of the progress on the project. The CITY may unilaterally, or upon request from ARTS, from time to time reduce or increase the Scope of Services to be performed by ARTS under this Agreement. Upon doing so, the CITY and ARTS 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. 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. ARTS shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for ARTS. ARTS' Executive Director, thereby is designated as the Project Director for ARTS. 6. DESCRIPTION OF THE WORK. A. The first project will construct a public gathering place and storefront renovation at the northwest corner of the intersection of Coolidge Avenue and W. 16th Street, with a focus on providing children and residents access to healthy foods B. The second project will construct a public gathering place in Paradise Creek Park, with a focus on providing children and residents access to art and education. 7. PHASES OF WORK. Not applicable. 8. SCHEDULE. All work shall be completed no later than June 30, 2018. 9. COMPENSATION AND PAYMENT. The CITY shall contribute up to $65,000 in matching funds to support ARTS in meeting their CCC grant match requirement. Payment is subject to ARTS completing their share of the project improvements, which is valued at $65,000, for a total estimated project cost of $130,000. Compensation for ARTS shall be based on monthly billings covering actual work performed. Billings shall include labor classifications, respective rates, hours worked and also materials, if any. A Budget Detail summarizing estimated project costs is presented in Exhibit "A." Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with the scope of work, as determined by the CITY. ARTS 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 ARTS and the CITY cannot agree to the quality or acceptability of the work, the Standard Agreement Page 3 of 13 City of National City and Revised December 2016 ARTS -3- manner of performance and/or the compensation payable to ARTS in this Agreement, the CITY or ARTS shall give to the other written notice. Within ten (10) business days, ARTS 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 ARTS. 11. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The Memoranda, Reports, Maps, Drawings, Plans, Specifications, and other documents prepared by ARTS 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. Contemporaneously with the transfer of documents, ARTS hereby assigns to the CITY, and ARTS thereby expressly waives and disclaims any copyright in, and the right to reproduce, all written material, drawings, plans, specifications, or other work prepared under this Agreement, except upon the CITY'S prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. ARTS shall, upon request of the CITY, execute any further document(s) necessary to further effectuate this waiver and disclaimer. ARTS agrees that the CITY may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium, or method utilize ARTS' written work product for the CITY'S purposes, and ARTS expressly waives and disclaims all rights mentioned in Section 15. Any modification or reuse by the CITY of documents, drawings, or specifications prepared by ARTS shall relieve ARTS from liability under Section 23, but only with respect to the effect of the modification or reuse by the CITY, or for any liability to the CITY should the documents be used by the CITY for some project other than what was expressly agreed upon within the Scope of Services of this project, unless otherwise mutually agreed. 12. 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 venturers with one another. Neither ARTS nor ARTS' 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, unemployment, or workers' compensation insurance. This Agreement contemplates the personal services of ARTS and the ARTS' 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 ARTS and its employees. Neither this Agreement nor any interest herein may be assigned by ARTS without the prior written consent of the CITY. Nothing herein contained is intended to prevent ARTS from employing or hiring as many employees, or subconsultants, as ARTS may deem necessary for the proper and efficient performance of this Agreement. All agreements by ARTS with its subconsultants shall require the subconsultant(s) to adhere to the applicable terms of this Agreement. 13. RISK OF LOSS AND INSURANCE. ARTS shall bear all risk of loss or damage to the Work until it is delivered and installed at the site. Standard Agreement Page 4 of 13 City of National City and Revised December 2016 ARTS -4- 14. REPRODUCTIONS. ARTS 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 ARTS. 15. OWNERSHIP RIGHTS AND LICENSES. Consistent with Section 11 of this Agreement, professional artists under contract with ARTS for the purpose of performing the Work are required to adhere to the applicable terms of this Agreement, including the provisions of this Section 15 and Section 32. 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. ARTS 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. ARTS 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 15. The CITY may provide appropriate credit to ARTS 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 ARTS 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. ARTS agrees that the CITY may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium, or method utilize ARTS' written work product for the CITY'S purposes, and ARTS 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. The provisions of this Section 15 shall survive the termination of this Agreement. 16. REPAIRS. To the extent practical, all repairs and restorations made during the lifetime of ARTS shall have ARTS' approval. To the extent practical, the CITY shall give ARTS the opportunity to perform the repairs and restoration at a reasonable fee. 17. PROCESS DOCUMENTATION. ARTS shall document, photographically and in writing ("Documentation"), 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. Consistent with Sections 23 and 32, ownership of the Documentation shall pass to and become property of the CITY once received by the CITY. Standard Agreement Page 5 of 13 City of National City and Revised December 2016 ARTS -5- 18. CONTROL. Neither the CITY nor its officers, agents, or employees shall have any control over the conduct of ARTS or any of ARTS' employees, except as herein set forth, and ARTS or ARTS' agents, servants, or employees are not in any manner agents, servants, or employees of the CITY, it being understood that ARTS, its agents, servants, and employees are as to the CITY wholly independent consultants, and that ARTS' obligations to the CITY are solely such as are prescribed by this Agreement. 19. COMPLIANCE WITH APPLICABLE LAW. ARTS, 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. ARTS and each of its subconsultants, shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 20. LICENSES, PERMITS, ETC. ARTS represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. ARTS represents and covenants that ARTS 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 ARTS to practice its profession. 21. STANDARD OF CARE. A. ARTS, 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 ARTS' trade or profession currently practicing under similar conditions and in similar locations. ARTS shall take all special precautions necessary to protect ARTS' 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. B. Unless disclosed in writing prior to the date of this Agreement, ARTS 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 ARTS' professional performance or the furnishing of materials or services relating thereto. C. ARTS is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project ARTS 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 ARTS has notified the CITY otherwise, ARTS warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by ARTS to use due diligence under this sub -paragraph will render ARTS 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. 22. NON-DISCRIMINATION PROVISIONS. ARTS 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. ARTS will take positive action to insure that applicants are employed without regard to their age, race, Standard Agreement Page 6 of 13 Revised December 2016 ARTS City of National City and -6- 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. ARTS 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. 23. CONFIDENTIAL INFORMATION. The CITY may from time to time communicate to ARTS certain confidential information to enable ARTS to effectively perform the services to be provided herein. ARTS shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. ARTS 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 23, 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 ARTS, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of ARTS without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to ARTS 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. ARTS 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, ARTS 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. ARTS shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of this Section 23. 24. INDEMNIFICATION AND HOLD HARMLESS. ARTS agrees to defend, indemnify and hold harmless the City of National City, its officers, officials, agents, employees, and volunteers against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, 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 ARTS' 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, employees or volunteers. CITY will cooperate reasonably in the defense of any action, and ARTS shall employ competent counsel, reasonably acceptable to the City Attorney. 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. 25. WORKERS' COMPENSATION. ARTS 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 Standard Agreement Page 7 of 13 Revised December 2016 ARTS City of National City and -7- amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, employees, and volunteers 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 ARTS under this Agreement. 26. INSURANCE. ARTS, 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 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, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of either $2,000,000 per occurrence and $4,000,000 aggregate, or $1,000,000 per occurrence and $2,000,000 aggregate with a $2,000,000 umbrella policy, covering all bodily injury and property damage arising out of its operations, work, or performance under this Agreement. The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". The "project" or "location" should be noted with specificity on an endorsement that shall be incorporated into the policy. 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, officials, 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's Risk Manager, at the address listed in subsection G below, 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. The Certificate Holder for all policies of insurance required by this Section shall be: Standard Agreement Page 8 of 13 City of National City and Revised December 2016 ARTS -8- City of National City c/o Risk Manager 1243 National City Boulevard National City, CA 91950-4397 H. Insurance shall be written with only insurers authorized to conduct business in Californiathat hold a current policy holder's alphabetic and financial size category rating of not less than A:VII according to the current Best's Key Rating Guide, or a company of 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. I. 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. J. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. K. If the CONSULTANT maintains broader coverage or higher limits (or both) than the minimum limits shown above, the CITY requires and shall be entitled to the broader coverage or higher limits (or both) maintained by the CONSULTANT. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY. 27. 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. 28. TERMINATION. A. This Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 60-day's written notice to ARTS. During said 60-day period ARTS 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 ARTS in Standard Agreement Page 9 of 13 City ofNational City and Revised December 2016 ARTS -9- 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 ARTS as provided for herein. D. In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by ARTS, whether paper or electronic, shall immediately become the property of and be delivered to the CITY, and ARTS 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 ARTS' breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 15. E. The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting ARTS; (2) a reorganization of ARTS for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of ARTS. 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 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: To ARTS: Stephen Manganiello Director of Public Works / City Engineer Engineering & Public Works Department City of National City 1243 National City Boulevard National City, CA 91950-4397 Executive Director A Reason to Survive, Inc. 200 E. 12th Street National City, CA 91950 Standard Agreement Page 10 of 13 City of National City and Revised December 2016 ARTS -10- 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, ARTS 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. ARTS also agrees not to specify any product, treatment, process or material for the project in which ARTS has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. ARTS shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. ARTS shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CITY in which ARTS has a financial interest as defined in Government Code Section 87103. ARTS 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, ARTS shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, ARTS shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which ARTS shall obtain from the City Clerk. ARTS 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 ARTS. 31. PREVAILING WAGES. State prevailing wage rates may apply to work performed under this Agreement. State prevailing wages rates apply to all public works contracts as set forth in California Labor Code, including but not limited to, Sections 1720,1720.2, 1720.3, 1720.4, and 1771. ARTS is solely responsible to determine if State prevailing wage rates apply and, if applicable, pay such rates in accordance with all laws, ordinances, rules, and regulations. 32. WAIVER. Due to the nature of the work of art and the site on which it is installed, ARTS 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. ARTS agrees that upon completion, ownership in the physical work of art which is created pursuant to this Agreement shall be transferred to and shall vest in the CITY, and ARTS 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. ARTS 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. The provisions of this Section 32 shall survive the termination of this Agreement. Standard Agreement Page 11 of 13 City of National City and Revised December 2016 ARTS -11- 33. 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 exhibits, schedules, or provisions thereof conflict or are inconsistent with the terms and conditions contained in this Agreement, the terms and conditions 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. 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. Subcontractors or Subconsultants. The CITY is engaging the services of ARTS identified in this Agreement. ARTS shall not subcontract any portion of the work, unless such subcontracting was part of the original proposal or is allowed by the CITY in writing. In the event any portion of the work under this Agreement is subcontracted, the subconsultant(s) shall be required to comply with and agree to, for the benefit of and in favor of the CITY, both the insurance provisions in Section 17 and the indemnification and hold harmless provision of Section 15 of this Agreement. M. 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 Standard Agreement Page 12 of 13 City of National City and Revised December 2016 ARTS -12- 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: Leslie Deese, City Manager APPROVED AS TO FORM: Angil P. Morris -Jones By: Roberto M. Contreras Deputy City Attorney B Fabienne Hanks, Board Chair By: manila Montgomery, Board Member Standard Agreement Page 13 of 13 City of National City and Revised December 2016 ARTS -13- EXHIBIT "A" - BUDGET DETAIL A. PERSONNEL EXPENSES JOB TITLE (# OF STAFF) RATE OF PAY CCC GRANT MATCHING FUNDS 1. ARTISTIC Project Manager/Lead Designer $45-$55/hr $10,000 $25,000 Support Artist $30/hr $20,000 Student Apprentice (6-8) $11/hr $15,000 2. ADMINISTRATIVE Community Arts Manager (1) $28/hr $0 Student Apprentices Manager (1) $26/hr $0 Artistic Director& Managing Director $38Jhr $0 3. TECHNICAL University of San Diego CasterCenter Evaluation Consultants $10,000 per service (spread across multiple projects) $0 SUBTOTAL: Personnel Expenses $45,000 $25,000 B. OPERATING / PRODUCTION EXPENSES CCC GRANT MATCHING FUNDS 4. PROJECT MATERIALS $19,000 $40,000 5. DOCUMENTATION & MARKETING SUPPLIES $1,000 6. GENERAL OPERATING $0 SUBTOTAL: Operating / Production Expenses $20,000 $40,000 TOTAL EXPENSES $65,000 $65,000 -14- RESOLUTION NO. 2017 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH A REASON TO SURVIVE, INC. (ARTS) TO LEAD THE DEVELOPMENT OF TWO CREATIVE PLACEMAKING PROJECTS THAT INCORPORATE ART, HEALTH AND COMMUNITY ENGAGEMENT, LOCATED IN THE WESTSIDE (OLD TOWN) NEIGHBORHOOD OF NATIONAL CITY FUNDED THROUGH A $65,000 CREATIVE CALIFORNIA COMMUNITIES GRANT FROM THE CALIFORNIA ARTS COUNCIL AWARDED TO ARTS AND $65,000 IN MATCHING CITY FUNDS 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; and WHEREAS, ARTS applied for and received a $65,000 Creative California Communities (CCC) grant from the California Arts Council to lead the development of two creative placemaking projects that incorporate art, health, and community engagement, located in the Westside (Old Town) neighborhood of National City; and WHEREAS, the first project will construct a public gathering place and storefront renovation at the northwest corner of the intersection of Coolidge Avenue and West 16th Street, with a focus on providing children and residents access to healthy foods; and WHEREAS, the second project will construct a public gathering place in Paradise Creek Park, with a focus on providing children and residents access to art and education; and WHEREAS, the CCC grant requires a "one-to-one" match in the amount of $65,000, for a total project cost of $130,000, and the City agrees to fund the $65,000 match to assist ARTS with development of the projects for the benefit of the community; and WHEREAS, the City's matching funds shall only be used for project improvements located within the public rights of way; and WHEREAS, the City and ARTS previously entered into a thirty-six (36) month Maintenance and Operating (M&O) Agreement, dated December 5, 2017, wherein ARTS agreed to maintain and operate the City -owned property located at 200 East 12th Street as an Arts Center for the community's benefit to enrich the lives of National City residents by providing arts, culture, and educational resources; and WHEREAS, per the terms of the M&O Agreement, ARTS is required to deliver a minimum of $125,000 in public/capital art projects per year; and WHEREAS, ARTS contribution of $65,000 towards the capital art improvements identified and funded by the CCC grant and further defined in the Agreement, would be applied towards ARTS' annual public art requirement under the M&O Agreement; and WHEREAS, the City's contribution of $65,000 towards the capital art improvements identified by the CCC grant and further defined in the Agreement, shall be Resolution No. 2017 — Page Two considered separate and distinct from requirements under the M&O Agreement, and therefore, will not relieve ARTS of its obligations under the M&O Agreement; and WHEREAS, based on review of ARTS' performance and qualifications delivering capital art projects through community engagement, the City has determined that ARTS is qualified by experience and ability to perform the services desired by the City, and ARTS is willing to perform such services; and WHEREAS, ARTS agrees that upon completion of the projects, ownership of the physical works of art installed within public rights of way shall be transferred to the City, and ARTS waives and releases all rights of ownership to those works of art. NOW, THEREFORE, BE IT RESOLVED that the City Council hereby authorizes the City Manager to execute an Agreement with A Reason to Survive, Inc. (ARTS) to lead the development of two creative placemaking projects that incorporate art, health and community engagement, located in the Westside (Old Town) neighborhood of National City funded through a $65,000 Creative California Communities grant from the California Arts Council awarded to ARTS and $65,000 in matching City funds. PASSED and ADOPTED this 19th day of December, 2017. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Angil P. Morris -Jones City Attorney • /�I//NMmwwwmx11R1,�I February 20, 2018 CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950-4397 619-336-4228 Michael R. Dalla, CMC - City Clerk James Halliday Interim Executive Director A Reason to Survive, Inc. 200 East 12th Street National City, CA 91950 Dear Mr. Halliday, On December 19th, 2017, Resolution No. 2017-238 was passed and adopted by the City Council of the City of National City, authorizing execution of an Agreement with A Reason to Survive, Inc. (ARTS). We are forwarding a certified copy of the above Resolution and a fully executed original Agreement. Sincerely, Michael R. Dalla, CMC City Clerk Enclosures