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HomeMy WebLinkAboutA Reason to Survive - Bike Rack Project Design Services 2019-2020AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND A REASON TO SURVIVE, INC. (ARTS) THIS AGREEMENT is entered into on this 15th day of August, 2019, 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, in March 2018, the CITY partnered with ARTS to apply for a $50,000 Active Transportation Grant Program (ATGP) grant from the San Diego Association of Governments (SANDAG) to construct bike parking areas or "Bike Corrals" at various locations within the public rights of way in National City; WHEREAS, on July 27, 2018, the SANDAG Board of Directors awarded a $50,000 ATGP grant to the CITY for design and construction of bike parking enhancements; WHEREAS, on March 5, 2019, the City Council adopted Resolution No. 2019-23 approving grant appropriations to allow CITY staff to begin work on the project; WHEREAS, to fulfill the grant requirements, the CITY desires to enter into an Agreement with ARTS to assist with community engagement, design and fabrication of custom bike racks to be installed by City Public Works in designated bike parking areas; 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, funding provided through the SANDAG ATGP grant for bike parking enhancements used to retain ARTS' services shall not be applied towards ARTS's annual public art requirement 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 community engagement, design and fabrication of custom bike racks to be installed by City Public Works in designated bike parking areas within public rights of way, 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 fabrication of custom bike racks 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 July 1, 2019. The duration of this Agreement is for the period of one year, beginning July 1, 2019 through June 30, 2020. Completion dates or time durations for specific portions of the project are set forth in Exhibit "A". 4. SCOPE OF SERVICES. ARTS will perform services as set forth in the attached Exhibit "A" to provide community engagement, design and fabrication of custom bike racks to deliver art projects referred to as Bike Corrals (the "Work"). 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 appear at meetings and workshops specified in Exhibit "A" to 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. Standard Agreement Page 2 of 14 City of National City and Revised May 2019 ARTS 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. Nadia Nunez, Community Arts Manager, thereby is designated as the Project Director for ARTS. 6. DESCRIPTION OF THE WORK. The project will provide community engagement, design and fabrication of custom bike racks to deliver art projects referred to as Bike Corrals. 7. PHASES OF WORK. Phases of Work shall be performed consistent with Exhibit "A". 8. SCHEDULE. Schedule shall adhere to the dates listed in Exhibit "A." All work, including submittal of final project deliverables, close-out documents and final invoice shall be completed no later than June 30, 2020. 9. COMPENSATION AND PAYMENT. The 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. The total cost for all work described in Exhibit "A" shall not exceed $31,273, without prior written approval by the City Manager. A Project Budget Detail summarizing estimated project costs and hourly rates is presented in Exhibit "A". The compensation for ARTS' work shall not exceed the rates set forth 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 Exhibit "A", 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 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: (1) be free from defects; (2) become the property of Standard Agreement Page 3 of 14 Revised May 2019 ARTS City of National City and the CITY for use with respect to this project; and (3) 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 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. 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 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 SUBCONSULTANT(S) 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. 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. Standard Agreement Page 4 of 14 Revised May 2019 ARTS City of National City and 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 15 and 32, ownership of the Documentation shall pass to and become property of the CITY once received by the CITY. 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 set forth in this Agreement. ARTS, or ARTS' agents, servants, or employees are not in any manner agents, servants, or employees of the CITY. ARTS and its agents, servants, and employees are wholly independent from the CITY and ARTS' obligations to the CITY are solely 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, Standard Agreement Page 5 of 14 City of National City and Revised May 2019 ARTS whether now in force or subsequently enacted. ARTS and each of its SUBCONSULTANT(S), shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 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 must promptly produce a copy of any such license, permit, or approval to CITY upon request. 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, 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. Standard Agreement Page 6 of 14 Revised May 2019 ARTS City of National City and 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. To the maximum extent provided by law, 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. EMPLOYEE PAYMENTS AND INDEMNIFICATION. 25.1 PERS Eligibility Indemnification. If ARTS' employee(s) providing services under this Agreement claims, or is determined by a court of competent jurisdiction or the California Public Employees Retirement System ("PERS") to be eligible for enrollment in PERS of the CITY, ARTS shall indemnify, defend, and hold harmless CITY for the payment of any employer and employee contributions for PERS benefits on behalf of the employee as well as for payment of any penalties and interest on such contributions which would otherwise be the responsibility of the CITY. ARTS' employees providing service under this Agreement shall not: (1) qualify for any compensation and benefit under PERS; (2) be entitled to any benefits under PERS; (3) Standard Agreement Page 7 of 14 Revised May 2019 ARTS City of National City and enroll in PERS as an employee of CITY; (4) receive any employer contributions paid by CITY for PERS benefits; or (5) be entitled to any other PERS-related benefit that would accrue to a CITY employee. ARTS' employees hereby waive any claims to benefits or compensation described in this Section 25. This Section 25 applies to ARTS notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary. 25.2 Limitation of CITY Liability. The payment made to ARTS under this Agreement shall be the full and complete compensation to which ARTS and ARTS' officers, employees, agents, and subcontractors are entitled for performance of any work under this Agreement. Neither ARTS nor ARTS' officers, employees, agents, and subcontractors are entitled to any salary or wages, or retirement, health, leave or other fringe benefits applicable to CITY employees. The CITY will not make any federal or state tax withholdings on behalf of ARTS. The CITY shall not be required to pay any workers' compensation insurance on behalf of ARTS. 25.3 Indemnification for Employee Payments. ARTS agrees to defend and indemnify the CITY for any obligation, claim, suit, or demand for tax, retirement contribution including any contribution to PERS, social security, salary or wages, overtime payment, or workers' compensation payment which the CITY may be required to make on behalf of (1) ARTS, (2) any employee of ARTS, or (3) any employee of ARTS construed to be an employee of the CITY, for work performed under this Agreement. This is a continuing obligation that survives the termination of this Agreement. 26. 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 Labor Code and all amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, 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 the ARTS under this Agreement. 27. 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. 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 Standard Agreement Page 8 of 14 Revised May 2019 ARTS City of National City 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 ARTS' 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 ARTS has no employees subject to the California Workers' Compensation and Labor laws, ARTS shall execute a Declaration to that effect. Said Declaration shall be provided to ARTS by the 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 ARTS 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: 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 California that 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 List of Approved Surplus Line Insurers ("LASLI") 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 ARTS does not keep all insurance policies required by this Section 27 in full force and effect at all times during the term of this Agreement, the CITY may 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. CITY reserves the right to modify the insurance Standard Agreement Page 9 of 14 Revised May 2019 ARTS City of National City and requirements of this Section 27, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. K. If ARTS maintains broader coverage or higher limits (or both) than the minimum limits shown above, the CITY shall be entitled to the broader coverage or higher limits (or both) maintained by ARTS. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY. 28. 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. 29. 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 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 Sections 11 and 15 of this Agreement. 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. 30. 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 Standard Agreement Page 10 of 14 Revised May 2019 ARTS City of National City and 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: James Halliday Executive Director A Reason to Survive, Inc. 200 E. 12th Street National City, CA 91950 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty- eight (48) hours by letter mailed or delivered as specified in this Section. 31. 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 Standard Agreement Page 11 of 14 Revised May 2019 ARTS City of National City and 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 31 by the ARTS. 32. 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. 33. 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 33 shall survive the termination of this Agreement. 34. ADMINISTRATIVE 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. Standard Agreement Page 12 of 14 Revised May 2019 ARTS City of National City and G. Assignment & Assumption of Rights. ARTS shall not assign this Agreement, in whole or in part, to any other party without first obtaining the written consent of CITY. H. 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. I. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The venue for any legal action arising under this Agreement shall be in either state or federal court in the County of San Diego, State of California. J. 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. K. 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. L. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. M. 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 SUBCONSULTANTS(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 27 and the indemnification and hold harmless provision of Section 24 of this Agreement. N. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. Standard Agreement Page 13 of 14 Revised May 2019 ARTS City of National City and IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY By: A REASON TO SURVIV C. (ARTS) By: Jacquelin APPROVED AS TO FORM: Angil P. Morris -Jones By: Rolferto M. Contreras Deputy City Attorney Standard Agreement Page 14 of 14 Revised May 2019 ARTS City of National City and EXHIBIT "A" gat I Bike Corrals Proposal Nadia Nunez Community ARTS Manager (619) 297 — ARTS (2787) nnunez@areasontosurvive.org • • . A Reason To Survive 1200 E 12th St, National City CA 91950 1 619.297.ARTS (2787) I www.areasontosurvive.org Mr. Stephen Manganiello Director of Public Works National City Engineer Division 1243 National City Blvd. National City, CA 91950 7/1/19 Dear Stephen: A Reason to Survive (ARTS) is pleased to submit this proposal to the City of National City to work with local high school students to design custom bike corrals and coordinate fabrication. For the purposes of this proposal, the project will be referred to as Bike Corrals Project. Bike Corrals Project PROJECT OVERVIEW In collaboration with local high school students, ARTS will host a series of workshops to create custom bike corrals for the City of National City. During these workshops, students will visit prospective sites, create concept sketches, research bike rack design, study rules and compliance, create cardboard and wire models, and build full-scale metal prototypes. II. SCOPE OF SERVICES A. Design ARTS will host a series of workshops to engage local high school students to design custom bike racks. Included in the design phase is the following: • Concept and design workshop series at the ARTS Center's Industrial Arts Shop. • Design meetings with the client/staff to review & approve design option(s). • One (1) to four (4) bike corral designs. • Preparation of approved designs final specifications. • Managing and involving youth interns and all aspects of youth -based design process. • Additional requested changes or services would be billed as Additional Services. B. Fabrication Prototyping will be completed either at the ARTS Center or the Sweetwater Welding Academy. Fabrication of the final 20 pieces will be outsourced to local metal fabricators. Each bike rack corral end will include a secure metal base plate to allow for mounting onto concrete or asphalt using heavy duty, stainless steel threaded bolts. ARTS I Bike Corrals 2'Page A Reason To Survive 1200 E 12th St, National City CA 91950 1619.297.ARTS (2787) I www.areasontosurvive.org • C. Installation City Public Works employees will install each bike corral in concrete or asphalt using heavy duty, stainless steel threaded bolts upon approval by the Director of Public Works / City Engineer. D. Youth Interns and Project Artists ARTS partners with Sweetwater High School and other local high schools to offer paid and/or service learning internships for youth to learn and apply skills from professional artists on our Community Art Projects. The professional artists on our community art project are trained in community building and design. They come to ARTS through our yearly Request for Qualifications (RFQ) process, and some are graduates of ARTS' education or internship program. They also serve as mentors to the youth interns. III. COMMUNITY ENGAGEMENT A. Key Partnerships ARTS will partner with local high schools to connect with classrooms to promote civic engagement and educate youth on active transportation. Additional partners for this project may include, but are not limited to, the City of National City, National City Public Library, Boys and Girls Club of America, Sweetwater High School. B. Youth Apprenticeships ARTS will partner with Sweetwater High School and other local high schools to offer apprenticeships for youth to learn workforce development skills. ARTS will offer service learning hours for interested students. IV. II. ADDITIONAL SERVICES If requested and authorized by the Client, A Reason to Survive may provide Additional Services for the Project. Any service not specifically included under Section 1, is considered an Additional Service. 1. Engineering 2. Obtaining permits 3. Making revisions to designs/artworks inconsistent with initial approvals or instructions previously given by the Client, including changes in the Client's budget. ARTS I Bike Corrals 3IPage A Reason To Survive 1200 E 12th St, National City CA 91950 1 619.297.ARTS (2787) I www.areasontosurvive.org V. SCHEDULE The anticipated start date for the design work is based upon receipt of signed contract and subject to ARTS's availability. Estimated start date is July 15, 2019. A. Proposed schedule Student Outreach and recruitment July 24th - August 20th Design Phase September 2nd - September 27th Prototyping September 30th - October 25th Fabrication Outsourcing Fabrication Approx. 4-6 weeks October 28th — December 6th VI. COMPENSATION A Reason To Survive's price for this project is a minimum of $28,430.00 Bike Corrals Preliminary Estimate Project Management /Personal Workshop and fabrication Bike Corral Design Challenge Design and prototyping workshop 2,210.00 11,120.00 Fabrication Fabrication of 10 pairs of bike corrals (20 pieces) ARTS I Bike Corrals 14,900.00 Subtotal $28,430.00 10% Contingency $ 2,843.00 Total $31,273.00 4IPage A Reason To Survive 1200 E 12th St, National City CA 91950 1 619.297.ARTS (2787) I www.areasontosurvive.org APPENDIX A PREVIOUS CUSTOM BIKE RACKS DESIGNED BY ARTS STUDENTS tiook Installed "Free bird" bike rack Custom bike corrals installed in the City of National City ARTS I Bike Corrals Installed "D St."bike rack "Lotus" bike rack prototype 5IPage A Reason To Survive l 200 E 12th St. National City CA 91950 l 619.297.ARTS (2787) ( www.areasontosurvive.org Task Community Arts Manager Finance Coordinator 24.2 6.2 APPENDIX B PROJECT BUDGET S6510 $35.00 Materials UNTS SI'.ws EfUP/WPACE ARTS Project Budget Project: Date: Bike Corrals 5.'251201 Bats Corral Design Challenge Workshop Teaching Artists Assisting Teaching Artist (ATA] Materials 64 hrs of oars + 36 hrb class prep time 120.2 SEO.CC E4.2 $30.CO Class Sup plies Prototypes Moteriols Transportation CTAL_.,.. BUDGET 2.210.00 210.00 6,000.00 1,421100 600110 2,400.00 200.00 Mks Flacks Class Designed Bike Corrals [1-4 prototypes] Fabrication Drawing: ,tLtoCad Fabrication + powder 1r 20 520.20 14,400.00 Plaques Plaque Febricetion [dell Installation City an National Cit 10.2 ARTS I Bike Corrals 2+0Q.00 grand Tod $ 2%430m 10lf Contill{eesr S 2,143A0 Total S 33.273.00 6IPage worm.... "rwil , 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 A REASON TO SURVIVE (ARTS) Citywide Custom Bike Racks (Bike Corrals) Judy Hernandez (Engineering/Public Works) forwarded a duplicate original Agreement to A Reason to Survive (ARTS).