HomeMy WebLinkAbout2008-007 Atascadero Veterans Memorial RO
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CITY OF ATASCADERO AND
THE ATASCADERO VETERAN'S MEMORIAL FOUNDATION
AGREEMENT FOR THE ATASCADERO VETERAN'S MEMORIAL
THIS AGREEMENT, entered into this 26th day of February 2008, by and
between City Of Atascadero, a California municipal corporation and general law City
(City) and the Atascadero Veteran's Memorial Foundation, a non-profit corporation
(Foundation). This Agreement is made with respect to the following facts:
RECITALS
1. There is strong public support within the local community for the construction
of an "all wars" memorial to honor and remember Atascadero military
veterans who have made, and continue to make, significant personal
sacrifices in service of the United States of America.
2. In response to the public's interest in honoring its military veterans, the
Foundation has agreed, at its own expense, to design, construct, install, and
gonate to the City a bronze memorial statue and memorial wall to be placed
on public property.
3. The Foundation has also agreed to undertake certain ongoing maintenance
obligations regarding the memorial and its location.
4. On March 27, 2007, the Atascadero City Council approved the Foundation's
proposed Memorial to be located at the corner of Atascadero Lake Park at
Highway 41 and Portola Road, as described more particularly in the Site Plan
approved by the City and attached to this Agreement as Exhibit A. The
location described in the Site Plan, including but not limited to the bronze
memorial statue, the memorial wall, associated landscaping and lighting and
other related improvements, shall be referred to collectively as the "Memorial
Site."
5. The parties to this Agreement also wish` to define their respective
responsibilities for maintenance and landscaping services at the Memorial
Site.
AGREEMENT
NOW, THEREFORE, for and in considera ion of the mutual promises and
Agreements herein contained and the Recitals set forth above and hereby incorporated
into this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as follows.
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1. THE PARTIES' RESPECTIVE OBLIGATIONS.
1.1. The Foundation's obligations consist of the following actions (each at the
Foundation's sole expense):
1.1.1 The Foundation agrees to transfer the Veteran's Memorial
as a gift to the City. Upon its completion, the Foundation will
irrevocably assign, transfer and give title and its interest in, the
Veteran's Memorial to the City, for the benefit of the City.
1.1.2 The Foundation shall produce for the City drawings of the
design concept of the Veteran's Memorial. The Foundation shall
also provide to the City, for City approval, duplicates of all plans,
drawings, field notes, and other documents as and when they are
prepared by the Foundation and its consultants (if any) in
connection with the Veteran's Memorial such that the City has a full
and complete set of the Memorial documents at all times during the
term of this Agreement.
1.1.3 The Foundation represents and warrants that: (a) the
Veteran's Memorial's design concept is solely the result of the
artistic effort of the Foundation, its consultants and/or contractors,
and does not infringe upon any copyright; (b) the design concept is
unique and original; (c ) the design concept has not been accepted
for sale or transfer elsewhere; (d) the Foundation will not design or
create any additional substantially similar work or version of the
design concept; and (e) the design concept is, and during the term
of this Agreement will remain, free and clear of any liens, security
interests or similar claims from any source whatsoever. The
Foundation will notify the City promptly in the event any lien,
security interest or similar claim is made or placed or threatened on
the design concept.
1.1.4 The Foundation recognizes the existence of moral rights of
artists set forth in the Visual Artists' Rights Act of 1990, as
amended, and as codified in Title 17 of United States Code (the
"Visual Artists' Rights Act"). To the extent the design concept is
protected by the Visual Artists' Rights Act, and the Foundation is
entitled to protection there under, the Foundation expressly waives
any and all rights arising under the Visual Artists' Rights Act. If the
Foundation intends to engage any consultant, contractor, or other
artist in connection with the Veteran's Memorial to develop the
design concept which are or may be protected by the Visual Artists'
Rights Act, the Foundation shall require such consultant,
contractor, or other artist to execute and deliver to the City a waiver
of its rights under the Visual Artists' Rights Act as provided in this
Agreement.
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1.1.5 The Foundation agrees to comply with all applicable
Municipal Code provisions and the memorial's designer and/or
sculptor in constructing and installing the bronze memorial statue
and memorial wall.
1.1.6 The Foundation agrees to submit to the City a written
maintenance schedule as suggested by: (1) the Granite
Fabricator/Installer, to maintain the integrity of the Memorial's
Granite Wall(s) as described in the Memorial design, (2) the
Sculptor and any suggested maintenance to care for the Bronze
Statue.
1.1.7 The Foundation agrees that its consultant(s) and/or
contractor(s)' services shall conform to the professional standards
of care and practice exercised by individuals engaged in performing
comparable services; that the personnel furnishing said services
shall be qualified and competent to perform adequately the services
assigned to them; and that the recommendations, guidance and
performance of such personnel shall reflect such standards of
professional knowledge and judgment.
1.1.8. The Foundation agrees to use a licensed, bonded and
insured General Contractor with sufficient General Liability
Insurance as required by the City, during construction and until the
Memorial is gifted to the City upon its completion.
1.1.9. The Foundation, its contractors, representatives and
agents, during the course of their performance hereunder, shall
have access to the Memorial Site in order to meet their obligations
hereunder, provided that the Foundation shall coordinate all such
access to the site with the City.
1.1.10. The Foundation agrees to install all landscaping and
irrigation equipment at the Memorial Site pursuant to the Site Plan
approved by the City attached as Exhibit A.
1.1.11. The Foundation agrees to maintain the Memorial Site by
maintaining the walls, benches, the bronze memorial statue, the
memorial wall, lighting equipment and other improvements in good
repair, replacing flags on a regular and as-needed basis, and
removing trash and debris from the Memorial Site on a periodic and
as-needed basis. The Foundation shall perform all necessary
maintenance on the bronze memorial statue and memorial wall
pursuant to the designer and sculptor's recommendations and
maintain the bronze memorial statue and memorial wall in good
condition. In addition to the maintenance schedule provided by
Section 1.1.6, the Foundation shall submit for City approval a
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maintenance schedule for all other maintenance required of the
Foundation by this Section 1.1.11.
1.1.12 The Foundation agrees to report any vandalism or damage
at the Memorial Site to the Atascadero Police Department as soon
as possible.
1.1.13. The Foundation shall remove any graffiti from the bronze
statue memorial statue and memorial wall within 5 business days of
the discovery of such graffiti or receiving a request from the City to
remove such graffiti.
1.1.14. The Foundation agrees to provide the City's Public Works
Department with advance written notice of any maintenance,
renovation, or alterations of the Memorial Site that would require a
permit under the Municipal Code or would change the appearance
of the Memorial Site in any material way. In performing such
maintenance, renovation work, or alterations, the Foundation shall
comply with all applicable governmental requirements.
1.1.15 The Foundation retains the exclusive right to add names
and language to the Walls of the Memorial and to add engraved
bricks to the "Pathway to Freedom" at the Foundation's sole
expense as needed and in perpetuity, to update the Memorial site
as needed and upon written notice to the City of the proposed
update activities.
1.1.16 The Foundation retains all rights under the Copyright Act
of 1976, 17 U.S.C. §101 et seq., and all other rights in and to the
Veteran's Memorial's design concept other than ownership and
possession of the memorial as installed (which the City shall have
solely and exclusively).
1.1.17 The Foundation grants to the City an irrevocable license to
make photographs, drawings, or other two-dimensional
reproductions of the design concept and the Veteran's Memorial for
its public purposes, including but not limited to use in advertising,
brochures, or other media publicity for the City or the area in which
the Veteran's Memorial will be located.
1.1.18. The Foundation grants to the City an irrevocable license to
repair and/or restore the Veteran's Memorial, and to alter or modify
upon written Agreement with Foundation, the Veteran's Memorial
as is reasonably necessary in connection with such repair and/or
restoration. In exercising its rights hereunder, the City will endeavor
to respect the integrity of the Veteran's Memorial. The Foundation
reserves the right to remove its name from the Veteran's Memorial
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and disclaim authorship or association with the Veteran's Memorial
in the event of such alteration or modification by providing to the
City written notice to that effect.
1.1.19. The Foundation shall have the right to prepare and affix a
credit name plate on or near the Veteran's Memorial upon its
completion, provided that all features of the name plate and its
location and placement shall be reasonable.
1.1.20 The Foundation shall use its best efforts to give a credit
reading substantially, "an original design concept commissioned by
the Atascadero Veteran's Memorial Foundation, and owned by the
City of Atascadero," in any public showing under the Foundation's
control of reproductions of the design concept.
1.2. The City's obligations consist of the following:
1.2.1. The City of Atascadero agrees to grant the use of the
Memorial Site as the location of the Veteran's Memorial.
1.2.2. The City agrees to inspect the Memorial during construction
and upon completion of the Memorial for compliance with the
approved Site Plan.
1.2.3. The City agrees to remove graffiti (other than graffiti on the
bronze memorial statue and memorial wall) at the Memorial site
within 5 business days of discovery of such graffiti or receiving a
request from the Foundation to remove such graffiti.
1.2.4. The City agrees to be solely responsible for all maintenance
of the Veterans Memorial site excepting the maintenance
responsibilities agreed to by the Foundation as described in Section
1.1.11 and 1.1.13 of this Agreement. The City's accepted
maintenance responsibilities include, but are not limited to:
irrigation equipment and lighting installed by the Foundation at the
Memorial Site, in a safe, attractive and clean manner.
1.2.5. The City agrees to pay for the cost of all utilities at the
Memorial Site.
1.2.6. The City agrees to maintain any trees, shrubs and lawn
planted by the Foundation at the Memorial Site.
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1.2.7. The City agrees to perform any necessary weeding and
application of pre-emergent herbicide in the landscaped and hard-
scaped areas at the Memorial Site.
1.2.8 The City agrees to direct the City Staff to provide approved
Building permits to the Foundation at no charge to the Foundation
as the permits are to build a City park.
2. TERM OF AGREEMENT AND OTHER PROVISIONS
2.1.1. Subject to the provisions of this Agreement regarding
termination set forth below, the term of this Agreement shall begin
on February 26, 2008, and terminate on February 26, 2023.
2.1.2 The City may terminate this Agreement on fourteen (14)
days' written notice if (a) the Agreement or any part thereof shall be
assigned without the previous written consent of the City; (b) the
Foundation shall violate any provision of the Agreement, or shall fail
to perform services in a timely and workmanlike manner; or shall
fail to perform, keep, or observe any of the terms, covenants or
conditions herein contained; (c) the Foundation abandons in whole
or in part its services, or becomes unable to perform its services; or
(d) a lien or security interest or similar claim arising under or
through the Foundation is placed on the Veteran's Memorial;
provided, however, that the Foundation shall not be in default if any
such failure to perform or make progress under (a) — (c) above
arises out of causes beyond the control and without the fault or
negligence of the Foundation or such failure to perform has been
cured (as reasonably supported by tangible evidence) prior to the
expiration of such fourteen-day period. In the event of such
termination, the City may procure, upon such terms and in such
manner as it shall deem appropriate, services similar to those so
terminated, without prejudice to any other rights and remedies for
default that the City may have.
In the event of any termination pursuant to the provisions hereof,
the Foundation shall promptly deliver to the City all documents
pertaining to Foundation's services to that time. In the event of a
termination of this Agreement arising out of this Section, all of the
aforesaid documents and all work in progress shall become the
property of the City and sole and exclusive right to fabricate and
install the Veteran's Memorial at the City's own expense shall pass
to the City and the Foundation shall assign to the City any and all
rights under its contract(s) with the fabricator, installer and others
needed to complete and install the Veteran's Memorial as
contemplated hereunder. It is acknowledged and agreed that
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Foundation's services under this Agreement may not be assumed
or assigned by a trustee in bankruptcy.
2.1.3 The Foundation is not an agent or employee of the City, and
shall be responsible for its own services. The employees used by
the Foundation to perform the services described herein shall be
deemed to be the Foundation's employees exclusively, and shall be
paid by the Foundation for all services in this connection. The
Foundation shall be responsible for all obligations and reports
covering Social Security withholding, unemployment insurance,
workers' compensation, income tax and other reports and
deductions required by any applicable state and federal law for
such employees.
2.1.4 The Foundation covenants that it presently has no interest
(to the best of its knowledge after due inquiry), and that it shall not
have any interest, direct or indirect, that would conflict in any
manner with the performance of services required under this
Agreement. During the term of this Agreement, Foundation shall
not employ, on either a full-time or part-time basis, any person so
long as such person shall be employed by the City.
2.1.5 In no event shall the Foundation be liable to the City for any
damages for loss resulting from causes beyond the reasonable
control of the Foundation, and in no event shall the Foundation be
liable for incidental, special or consequential damages, including
loss of anticipated revenues or profits, whatever the cause.
2.1.6. No member or employee of the Foundation shall be charged
personally or held contractually liable by or to the City under any
term or provision of this Agreement, or because of any breach
thereof, or because of its execution or attempted execution.
2.1.7 The person executing this Agreement on behalf of the
parties represents and certifies that he/she has authority and power
to sign on behalf of that party, and to bind that party to the
obligations contained herein.
2.1.8. The City, with the Agreement of the Foundation, is authorized
to extend the term of this Agreement beyond the termination date,
as needed, under the same terms and conditions set forth in this
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Agreement. Any such extension shall be in writing signed by the
parties and will be an amendment to this Agreement.
2.1.9. The Agreement shall terminate upon the bankruptcy or
insolvency of any party. -
2.1.10 Upon the City's acceptance of the completion of the
Memorial, the Memorial shall become the property of the City.
3. DESIGNATED REPRESENTATIVES.
3.1. The City's Director of Community Services is the designated
City Representative and is responsible for coordination with the
Foundation Representative.
3.2. The Chair of the Foundation is the designated Foundation
Representative and is responsible for coordination with the City
Representative.
4. LIABILITY COVERAGE
4.1. The City has liability coverage as a Member of the California
Joint Powers Insurance Authority(CJPIA). The Memorandum of
Liability Coverage of CJPIA, effective July 1, 2007, provides that
"Protected Party" includes: "C. Any nonprofit California
corporation or unincorporated association under written contract
with the Member to perform specified functions under the Member's
direction and control." CJPIA has reviewed this Agreement and
determined that the Foundation is a Protected Party for the
activities described in this Agreement. This coverage of the
Foundation will be at no expense to the Foundation.
4.2 Any contractor or subcontractor hired by the Foundation to
perform any work or services referenced in this Agreement must
provide to the City proof of insurance in the form of a Certificate of
Insurance and Endorsement naming the City and Foundation as
additional insureds on a General Liability policy with limits of not
less than $1,000,000 per occurrence for bodily injury, personal
injury and property damage and also provide proof of Workers
Compensation Insurance for all of its employees.
4.3 The Foundation shall provide the City with a copy of all written
Agreements with any contractor who performs any work on the
Memorial along with a copy of the proof of insurance provided by
that contractor as required by this Agreement.
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5. INDEMNIFICATION.
5.1 The City agrees to hold harmless and indemnify, and, at the
Foundation request, defend the Foundation, its officers, officials,
employees, agents, representatives, and volunteers from and
against any and all claims, demands, actions, damages, expenses,
suits, accidents, injuries, liability, or proceedings of any character
whatever, including without limitation, attorney's fees, brought for or
on account of, or resulting from or arising out of or in connection
with, any negligence or wrongful conduct by the City or Foundation
or any of the City's or Foundation's, officials, directors officers,
agents, employees or representatives, in connection with or in the
performance of this Agreement except for claims resulting from or
arising out of the willful misconduct of the Foundation or its officials,
directors, officers, agents, employees or representatives and
except for claims arising from any work by the Foundation or its
contractors which was not approved by the City under this
Agreement.
5.2 The contract between the Foundation and any contractor for
work on the Memorial shall include a provision that the contractor
agrees to defend and indemnify the Foundation and City for any
claim arising from work performed by the contractor on the
Memorial.
6. ASSIGNMENT.
The Foundation may not assign this Agreement or any part of this
Agreement to any other individual or entity without the prior written
consent of the City Manager or his/her designee.
7. MODIFICATION OF AGREEMENT.
This Agreement may be modified or amended only upon mutual written
consent of the City and the Foundation.
8. USE OF TERM "City".
Reference to the "City" in this Agreement includes the City Manager or
any authorized representative acting on behalf of City. All City approvals
provided for in this Agreement shall be by the City Manager or his or her
designee.
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9. NOTICES.
All notices, approvals, requests, consents or other communications,
required or permitted pursuant to this Agreement shall be in writing and
effective upon receipt if may be given by personal delivery or by mail.
Notice sent by mail must be addressed as follows:
TO City: City Of Atascadero
Director of Community Services
6907 EI Camino Real
Atascadero, CA 93422
TO Foundation: Atascadero Veteran's Memorial Foundation
Chair
P.O. Box 1466
Atascadero, CA 93423
and when addressed in accordance with this paragraph, will be deemed
given two days after deposit in the United States mail, postage prepaid. In
all other instances, notices will be deemed given at the time of actual
delivery. Changes may be made in the names or addresses of persons to
whom notices are to be given by giving notice in the manner prescribed in
this paragraph.
10. NOTICE OF DEFAULT AND OPPORTUNITY TO CURE.
Neither party will be deemed to be in breach of this Agreement based on a
default that is capable of being cured until it has received written notice of
the default from the other party. The party charged with a default will have
15 days from the date of receiving such notice in which to cure the default
or otherwise respond. If the circumstances leading to the notice of default
have not been cured or explained to the satisfaction of the other party
within 15 days from the date on which the party received notice, the non-
defaulting party may terminate this Agreement pursuant to Section 2.
11. WAIVER.
A waiver by the City or Foundation of any default of any term, covenant, or
condition contained in this Agreement shall not be deemed to be a waiver
of any subsequent default of the same or any other term, covenant, or
condition contained in this Agreement whether of the same or different
character.
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12. GOVERNING LAW.
The terms of this Agreement will be interpreted according to the laws of the State
of California. Should litigation occur, venue will be in the Superior Court of San
Luis Obispo County.
13. INTEGRATED AGREEMENT.
This Agreement sets forth the entire understanding between the parties as to the
subject matter hereof and supersedes all prior or collateral Agreements and
representations. This Agreement may not be amended or modified except by a
writing signed by both parties.
ATTEST: City of Atascadero
By: VV
City Clerk City Manager
Approve s T Fo m: Atascadero Veteran's Memorial Foundation
By: By:
City Attorney President
ATTEST:
of Foundation
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