Leichliter/Badges Art 04ART PURCHASE AGREEMENT
THIS ART PURCHASE AGREEMENT (the "Agreement") is entered into this 18'
day of May 2004, by and among THE CITY OF LA QUINTA, a California municipal
corporation (the "City") and Mark Leitchliter, an individual and J. K. Designs, Inc., a
Colorado Corporation doing business as the National Sculptors' Guild (collectively
referred to as Artist).
RECITALS
A. The City Council is commissioning the fabrication and installation of
certain ARTWORK (the "Artwork") to be installed and displayed by the artist on the
Civic Center Campus (the "Site Location").
NOW, THEREFORE, the parties hereto, for the consideration and under the
conditions hereinafter set forth, hereby mutually agree as follows:
ARTICLE I. SCOPE OF SERVICES
1.1 Scope of Design Services. Artist shall prepare or cause to be
prepared, any required approvals for all shop drawings, details, and samples, and shall
do all other things necessary and incidental to the performance of the Artist's
obligations pursuant to this Agreement.
1.2 Scope of Fabrication Services. Artist shall fabricate, transport and install
the Artwork pursuant to and by the times set forth in the Scope of Design Build
Services and the Schedule of Performance attached hereto as Exhibit A and Exhibit B,
respectively, and incorporated herein by this reference.
The City shall have the right to review the Artwork at reasonable times
during the fabrication thereof. Artist shall submit to the City monthly progress
narratives, including photographs, as required by the Schedule of Performance (Exhibit
B). The narratives shall include the percentage of the Artwork completed to date,
along with an estimated completion date.
Artist shall furnish all tools, equipment, apparatus, facilities, plant, labor,
services, materials, and all utilities and transportation, including power, fuel, and
water, and to perform all work necessary to construct, transport and install in a good
and workmanlike manner the scope of work set forth in the Scope of Design Build
Services (Exhibit A), or reasonably inferable therein, together with the appurtenances
thereto, at the Site Location. It is understood and agreed that all said plant, labor,
services, materials, equipment, and facilities shall be furnished and said work
performed and completed by Artist as an independent contractor, subject to the
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inspection and approval of the City or its representatives.
The Artist shall present to the City in writing for further review and
approval any and all significant changes in the scope, design, color, size, material or
texture, of the Artwork not permitted by or not in substantial conformity with the
approved working drawings and the Scope of Design Build Services (Exhibit A). A
significant change is any change in the scope, design, color, size, material, texture, or
Site Location which affects installation, scheduling, site preparation, or maintenance
for the Artwork or the schematic concept of the Artwork as represented in the
schematic drawings, the approved working drawings, and the Scope of Design Build
Services (Exhibit A).
Artist shall at all times maintain proper facilities and provide safe access
for inspection of the Artwork by the City, its engineer or representatives, and to the
sites wherein the Artwork is located prior to installation. Where specifications require
work to be specially tested or approved, it shall not be tested without timely notice to
the City, of its readiness for inspection and without the approval thereof, or consent
thereto by the City. The Artist shall promptly notify the respective departments or
official bodies when the artist's work is ready for inspection and the artist agrees, at
once, do all work required to remove any violations or to comply with such
inspections, without additional charge to the City. The Artist shall perform all work
necessary to obtain approvals from the authorities mentioned above without additional
cost to the City.
1.3 Change Orders.
In addition to the change orders and extra work specified and provided
for in the Scope of Design Build Services (Exhibit A), the City may at any time during
the progress of the completion and installation of the Artwork and up to the date of
the issuance of a Notice of Completion as hereinafter defined, when in the City's
reasonable determination the public interest and necessity so require, request any
alterations, deviations, additions to or omissions from this Agreement, Scope of
Design Build Services (Exhibit A), or the work, labor and materials to be furnished
there under, and the same shall in no way affect or make void this Agreement.
Artist shall adhere strictly to the Scope of Design Build Services (Exhibit
A), unless a change there from is authorized in writing. In such case, the terms of
said change shall be understood and agreed upon in writing by the City and Artist
before commencement of said revised work.
1.4 Post -Fabrication Services.
a. The Artist shall notify the City in writing when fabrication of the
Artwork is completed and ready for delivery and installation at the Site Location,
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which is designated in Exhibit E, attached hereto and incorporated herein by reference.
b. Upon completion and at all times during fabrication and installation,
the Artwork shall comply with all applicable statutes, ordinances and regulations of
any governmental agency having jurisdiction over the Artwork.
1.5 Post -Installation.
a. The Artist shall be available at such reasonable time or times as
may be agreed between the City and Artist to attend any and all inauguration, ground
breaking, or presentation ceremonies upon completion of the Artwork.
b. The City shall use reasonable efforts to arrange for publicity for the
completed Artwork by local media and publications, and otherwise as may be
determined between the City and Artist as soon as practicable following installation.
C. Upon installation of the Artwork, the Artist shall provide the City
with written instructions for appropriate maintenance and preservation of the Artwork.
1.6 Final Acceptance.
a. The Artist shall advise the City in writing that the Artwork will
become the responsibility of the City on the effective date of completion of the project
and the acceptance as complete by the City. Following receipt of such notice the City
shall cause the installed Artwork to be inspected by suitably qualified and appropriate
professional(s), and within five (5) days following completion of such inspection(s), the
City shall either provide the artist with reasonably specific written objections to the
installed Artwork or notify the artist of its acceptance of the Artwork by a Notice of
Completion in the form attached hereto as Exhibit D. Such Notice of Completion
(Exhibit D) shall be evidence of the satisfactory completion and installation of the
Artwork in conformity with this Agreement, subject to the indemnification,
representations, and further performance obligations set forth in this Agreement.
b. Final Acceptance by the City of the ownership of the Artwork will
occur at the filing of the Notice of Completion. At that time, the ownership and
responsibility for the Artwork will rest with the City of La Quinta.
1.7 Risk of Loss. Upon receipt of the Notice of Completion, the risk of loss
or damage to the Artwork shall be borne by the City. The Artist shall take such
measures as are necessary to protect the Artwork from loss or damage, through
insurance or other adequate security, and to maintain the Artwork until the Notice of
Completion is made by the City.
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1.8 Title. Title to the Artwork and any construction drawings, plans, or other
work product generated pursuant to this Agreement shall remain with the Artist during
fabrication and installation, and shall pass and vest with the City upon issuance of
Final Acceptance or Termination pursuant to Article IX hereof.
1.9 Payment: The artist shall be paid the compensation set forth in Exhibit C.
The total compensation to be paid to the Artist shall not exceed $100,000 ( one
hundred thousand dollars).
ARTICLE 11. TIME OF PERFORMANCE
2.1 Time. The Artist agrees to punctually and diligently perform all
obligations under this Agreement. It is further understood and agreed that should the
Artist fail to furnish the labor, materials, equipment, and or services, to perform all
work and labor as herein provided in the manner herein set forth in good and
workmanlike manner, Artist shall, in addition to any other penalties provided in the
Agreement, be liable to the City for all losses or damages that either may suffer on
account thereof.
In the event Artist at the time refuses or neglects to supply a sufficient
number of properly skilled workers or a sufficient quantity of materials of proper
quality, or in effect be adjudicated bankrupt, or files a voluntary petition in bankruptcy,
or commits any act of insolvency, or makes an assignment, for benefit or creditors,
without the City's prior written consent, or fails to make prompt payment to his
material men and laborers, or fails in any respect to properly and diligently prosecute
the work covered by this Agreement, or otherwise fails to perform fully any and all of
the Covenants and obligations herein contained; then the City may, at its option, (1)
after giving twenty-four (24) hours written notice to Artist and City as applicable,
provide any such labor and materials as may be necessary ; or (2) terminate the
Artist's right to proceed with the work and, in the event, the City, at its option, shall
have the right to enter upon the Artist's warehouse and take possession, for the
purpose of completing the work included under this Agreement, of the Artwork or any
portion thereof, and all materials, tools, and appliances thereon, and may employ any
other person or persons to finish the work and provide the materials therefore.
In the event City provides labor and/or materials, as set forth in (1) above, or finishes
the work, as set forth in (2) above, City may deduct the cost of such labor and
materials and all costs incurred in finishing the work, if applicable, from any money
then due or thereafter to become due to Artist under this Agreement until the work
undertaken by the City is completely finished. At that time, if the unpaid balance of
the amount to be paid to the Artist under this Agreement exceeds the expenses
incurred by the City in providing labor and materials and/or in finishing Artist's work,
such excess shall be paid by the City to Artist, but if such expense shall exceed such
unpaid balance, then Artist shall promptly pay to City the amount by which such
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expense shall exceed such unpaid balance. The expense incurred by the City as
herein provided, either for furnishing materials, or for finishing the work, and any
damages incurred by the City by reason of Artist's default, shall be chargeable to, and
paid by Artist, aforesaid, to secure the payment thereof. If the City elects not to
terminate Artist's right to proceed, Artist agrees to reimburse the City for losses or
damages resulting for the delay in speedy progress of work.
If Artist should neglect to prosecute the work properly or fail to perform
any provisions of this Agreement, the City, after ten (10) days written notice to Artist,
may without prejudice to any other remedy it may have make good such deficiencies.
In the event the City makes good such deficiencies, it may deduct the cost thereof
from the payment then or thereafter -due Artist.
In addition to specific provisions of Agreement, performance by either
party hereunder shall not be deemed to be in default where delays or defaults are due
to war, insurrection, strikes, lock -outs, riots, floods, earthquakes, fires, casualties,
supernatural causes, acts of the public enemy, epidemics, quarantine restrictions,
freight embargoes, lack of transportation, governmental restrictions or priority,
litigation, unusually severe weather, inability to secure necessary labor, materials or
tools, delays of any contractor, subcontractor or supplies, acts of the other party, acts
or failure to act of any public or governmental agency or entity, including, without
limitation, unreasonable delays in the processing and issuance of required permits for
the installation of the Artwork by Artist (except that any act or failure to act of City
shall not excuse performance by City) or any other causes beyond the reasonable
control or without the fault of the party claiming an extension of time to perform.
Notwithstanding the foregoing, market and economic conditions shall not entitle Artist
to an extension of time to perform. An extension of time for any such cause shall be
for the period of the enforced delay and shall commence to run from the time of the
commencement of the cause, if notice by the party claiming such extension is sent to
the other party within ten (10) days of knowledge of the commencement of the cause.
In addition, times of performance under this Agreement may be extended by mutual
written agreement by City and Artist.
ARTICLE III. WARRANTIES
3.1 Title. The Artist represents and warrants that: (a) the Artwork is solely
the result of the artistic effort of the Artist; (b) except as otherwise disclosed in
writing to the City that the Artwork is unique and original and does not infringe upon
any copyright; (c) the Artwork, or a duplicate thereof, has not been accepted for sale
elsewhere; and (d) the Artwork is free and clear of any and all encumbrances and/or
monetary liens.
3.2 Quality and Condition. The Artist represents and warrants, except as
otherwise disclosed to the City in writing, that: (a) the fabrication of the Artwork will
be performed in a workmanlike manner; (b) the Artwork, as fabricated and following
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installation, will be free of patent and latent defects in material and workmanship,
including any defects or qualities which cause or accelerate deterioration of the
Artwork; and (c) reasonable maintenance of the Artwork will not require procedures
substantially in excess of those described in the maintenance recommendations to be
submitted by the Artist to the City.
The warranties described in this Section 3.2 shall survive for a period of
one (1) year after the Acceptance of the Artwork, except the representation and
warranty concerning latent defects shall survive for a period of three (3) years from
after Acceptance of the Artwork. The City shall give notice to the Artist of any
observed and claimed breach with reasonable promptness. The Artist shall, at the
request of the City and at no cost to the City cure reasonably and promptly the breach
of any such warranty which is curable by the Artist and which cure is consistent with
professional conservation standards (including, for example, cure by means of repair or
re -fabrication of the Artwork).
ARTICLE IV. PERFORMANCE BONDS
The Artist shall not be required by the City to post any performance
bonds or similar undertakings, and any requirement of any other authority for
performance bonds shall be the responsibility of the City. Nevertheless, Artist shall
prevent any lien from attaching to the Artwork by any person claiming under Artist.
ARTICLE V. REPRODUCTION RIGHTS
5.1 General. The Artist shall retain all rights under the Copyright Act of
1976, 17 U.S.C. Sections 101 et seg., and all other rights in and to the Artwork
except ownership and possession, except as such rights are limited by this
Agreement. In view of the intention that the Artwork in its final dimension shall be
unique, the Artist shall not make any additional exact duplicate, dimensional
reproductions of the final artwork, nor shall the Artist grant permission to others to do
so except with the written permission of the City provided, however, that at such time
as Final Acceptance by the City, the City alone may grant such approval. The Artist
grants to the City and its assigns an irrevocable license to make two-dimensional
reproductions of the Artwork for noncommercial purposes, including but not limited to
reproductions used in advertising, brochures, media publicity, and catalogues or other
similar publications, provided that these rights are exercised in a tasteful and
professional manner.
5.2 Notice. All reproductions by the City shall contain a credit to the Artist,
Mark Leichliter, National Sculptors' Guild, and denote its location, provided that United
States copyright law protects the Artwork and reasonable substantiation thereof is
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provided to the City.
5.3 Registration. The Artist may at its expense cause to be registered, with
the United States Register of Copyrights, a copyright in the Artwork in the Artist's
name.
ARTICLE VI. ARTIST'S RIGHTS
6.1 Identification. The City shall, at its expense, prepare and install at the
site location, a plaque identifying the Artist, Mark Leichliter, National Sculptors' Guild,
the title of the Artwork and the year of completion, and shall reasonably maintain such
notice in good repair against the ravages of time, vandalism and the elements.
6.2 Maintenance. The parties recognize that maintenance of the Artwork on
a regular basis is essential to the integrity of the Artwork.
6.3 Repairs and Restoration.
a. The City shall have the right to determine, after consultation with a
professional art conservator, when and if repairs and restoration to the Artwork will be
made. To the extent practical, the Artist, during the Artist's lifetime, may be given
the opportunity to make or personally supervise significant repairs and restorations and
shall be paid a reasonable fee for any such services, provided that the City and the
Artist mutually agree in writing, prior to the commencement of any significant repairs
or restorations, upon the Artist's fee for such services. No fees shall be paid to Artist
for repair or restoration due to a breach of the representations and warranties set forth
herein.
b. All repairs and restorations shall be made in accordance with
recognized principles of conservation.
6.4 Maintenance and Alteration of the Artwork.
a. The City shall maintain the Artwork in a manner that the City
determines appropriate in its sole discretion. All decisions regarding alterations to the
Artwork are within the sole and absolute discretion of the City.
b. The City shall use its reasonable efforts to meet and consult with
Artist prior to the time of making any alteration. If any alteration is made without the
consent of Artist, Artist shall have the right to direct the City to remove Artist's name
from the Artwork. In connection herewith, Artist hereby acknowledges and agrees
that Artist is familiar with the California Art Preservation Act, as set forth in Section
987 of the California Civil Code and the Visual Artists Rights Act of 1990, as set forth
in 17 United States Code Annotated, Section 106A, and the rights and protection
afforded Artist there under, and Artist hereby waives each and all of Artist's rights and
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protection under Section 987 of the California Civil Code and under 17 United States
Code Annotated, Section 106A, to the extent such rights and protection are
inconsistent with this Section 6.4; provided, however, that to the extent that the
rights and protection afforded Artist under Section 987 of the California Civil Code are
not inconsistent with this Section 6.4 or pertain to matters that are not dealt with in
this Section 6.4, Artist shall retain such rights and protection.
6.5 Permanent Record. The City shall maintain a record of this Agreement
and of the location and disposition of the Artwork.
6.6 Artist's Address. The Artist shall notify the City of changes in address.
The City shall take reasonable effort(s) to locate the Artist when matters arise relating
to the Artist's rights under this Agreement.
6.7 Surviving Covenants. The covenants and obligations set forth in this
Article VI shall be binding upon the parties, their heirs, legatees, executors,
administrators, assigns, transferees and all their successors in interest, and the City's
covenants do attach and run with the Artwork and shall be binding to and until twenty
(20) years after the death of the Artist unless otherwise stated herein. Upon the
death of the Artist, the representative of Artist's estate shall assume the surviving
covenants and obligations of Artist set forth in this Article VI.
ARTICLE VI1. ARTIST AS INDEPENDENT CONTRACTOR
The Artist shall perform all work under this Agreement as an independent
contractor and not as an agent, joint venturer, partner or an employee of the City.
The Artist shall not:
a. be supervised by any employee or official of the City;
b. exercise supervision over any employee or official of the City;
C. have authority to contract for or bind the City in any manner; or
represent itself as an agent of the City; or otherwise be authorized to act for or on
behalf of the City;
d. has status as the City's employee or has any right to any benefits
that the City grants to its employees.
ARTICLE Vlll. ASSIGNMENT OR TRANSFER
No party shall assign or transfer an interest in this Agreement without the
prior written consent of the other parties, provided, however, that claims for money
due or to become due from the City under this Agreement may be assigned to a
financial institution without approval.
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ARTICLE IX. TERMINATION
The City may, at either its option, by written notice to the Artist,
terminate this Agreement either (a) upon the failure by Artist to perform any of its
obligations hereunder in accordance with the terms hereof or any other breach by
Artist of the terms of this Agreement, and such failure or breach continues uncured for
fifteen (15) days following notice thereof from the City to Artist ("Termination for
Default"), or (b) at any other time in the sole and absolute discretion of the City
("Discretionary Termination"). Termination for Default and Discretionary Termination
are sometimes hereinafter collectively referred to as "Termination" . Upon
Termination, except as provided in this Article IX, all parties shall be released from all
further obligations and liability hereunder. Effective upon a Termination, the Artwork,
or so much thereof or has then been completed, shall be transferred to and shall
belong to the City. In such event and upon Artist's written request, the City shall
remove Artist's name from the Artwork.
ARTICLE X. CONTRACTOR ADMINISTRATOR
The Contract Administrator for this Agreement shall be the City
Community Services Director. Wherever this Agreement requires any notice to be
given to or by the City, or any determination or action to be made by the City, the City
Community Services Director shall represent and act for the City.
ARTICLE XI. NON-DISCRIMINATION
In carrying out the performance of the services designated herein, none
of the Artist and the City shall discriminate as to race, color, creed, religion, marital
status, national origin or ancestry, and the Artist shall comply with the equality of
employment opportunity provisions of State and local laws and regulations as
presently existing or hereafter amended.
ARTICLE XI1. ENTIRE AGREEMENT
This Agreement, and all of the exhibits attached hereto, embodies the
entire Agreement and understanding between the parties hereto, and there are no
other agreements or understandings, oral or written, with reference to the subject
matter hereof that are not merged herein and superseded hereby, except as set forth
herein above.
ARTICLE XIII. MODIFICATION
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No alteration, change or modification of the terms of the Agreement shall
be valid unless made in writing and signed by each party hereto and approved by
appropriate action of the City.
ARTICLE XIV. WAIVER
No waiver of performance by any party hereto shall be construed as or
operate as a waiver of any subsequent default of any terms, covenants and conditions
of this Agreement. The payment or acceptance of fees for any period after a default
shall not be deemed a waiver of any right or acceptance of defective performance.
ARTICLE XV. GOVERNING LAW
15.1 This Agreement, regardless of where executed or performed, shall be
governed by and construed in accordance with the laws of the State of California.
15.2 In addition to any other rights or remedies and subject to the restrictions
otherwise set forth in this Agreement, any party hereto may institute legal action to
seek specific performance of the terms of this Agreement, to recover damages, or to
obtain any other remedy, at law or in equity, consistent with the purpose of this
Agreement. Such legal actions must be instituted in the Superior Court of the County
of Riverside, in an appropriate Riverside County municipal court, or in the Federal
District Court in the district of California, which includes Riverside County.
15.3 If any party to this Agreement brings a legal action or proceeding against
another party to enforce the provisions of this Agreement, or on account of a claim or
dispute arising out of this Agreement, then the prevailing party in such arbitration or
legal action or proceeding shall be entitled to reimbursement by the other party of the
legal fees and costs, including reasonable attorney fees and expert witness fees,
incurred by the prevailing party in connection with the legal action or proceeding.
ARTICLE XVI. HEIRS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit of the
City and Artist, and their respective heirs, personal representatives, successors and
permitted assigns.
ARTICLE XVII. NOTICES
All notices, requests, demands and other communications which are
required or permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given upon the delivery or receipt thereof, as the case may
be, if delivered personally or sent by registered or certified mail, return receipt
requested, postage prepaid, as follows:
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a. if to the City, to:
City of La Quinta
P.O. Box 1504
78-495 Calle Tampico
La Quinta, CA 92253
Attention: Community Services Director
760-777-7032
b. if to the Artist, to:
Mark Leichliter
National Sculptors' Guild
2683 North Taft Avenue
Loveland, CO 80538
(970) 667-2015
ARTICLE XV111. INDEMNITY
With respect to acts, errors or omissions in the performance of Artist's
obligations hereunder, Artist agrees to indemnify and hold harmless the City and its
officers, agents, employees, and representatives from and against any and all claims,
demands, defense costs, liability or consequential damage of any kind or nature arising
out of Artist's (including either of their subcontractors, agents, employees, assigns or
licensees) negligent and/or willful acts, errors or omissions in the performance of
Artist's obligations under this Agreement.
With respect to acts, errors or omissions in the performance of the City's
obligations hereunder, the City agrees to indemnify and hold harmless Artist from and
against any and all claims, demands, defense costs, liability or consequential damages
of any kind or nature arising out of the City's (including its contractors') negligent
and/or willful acts, errors or omissions in the performance of the City's obligations
under this Agreement.
The foregoing indemnities shall be in effect without regard to the
maintenance of insurance coverage for any such loss, costs, claims, damages or
expenses.
ARTICLE XIX. INSURANCE
19.1 Policies. Throughout fabrication of the Artwork the Artist shall
maintain Comprehensive General Liability Insurance, or Commercial General Liability
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Insurance, including coverage for Premises and Operations, Contractual Liability,
Personal Injury Liability (employee and contractual exclusions deleted),
Products/Completed Operations Liability, Broad -Form Property Damage and
Independent Contractors' (S 1,000,000) per occurrence, combined single limit, written
on an occurrence form, and such other forms and amounts of insurance as the City
may deem necessary or desirable. All required insurance shall be evidenced by an
insurance policy or policies (or the renewal or replacement thereof) reasonably
acceptable to the City. Artist, as applicable, shall not proceed with any work nor
receive payment under this Agreement until, among other things; the City has received
the appropriate insurance certificates.
Artist, prior to completion, shall maintain or cause to be maintained
standard all-risk property insurance in an amount equal to or greater than the full
replacement value of the Artwork.
The Artist's General Liability policy required by this Agreement shall
contain the following clauses:
"The City of La Quinta and its officers, agents, employees,
representatives, and volunteers are added as additional insured as
respective operations and activities of, or on behalf of the named
insured, performed under contract with the City of La Quinta."
Prior to commencing any work under this Agreement, Artist shall deliver
to the City insurance certificates confirming the existence of the insurance required by
this Agreement, and including the applicable clause referenced above. Also, within
thirty (30) days of the execution date of this Agreement, Artist shall provide to the
City an endorsement to the General Liability policy, which adds to this policy the
applicable clause referenced above. Said endorsement shall be signed by an
authorized representative of the insurance company and shall include the signator's
company affiliation and title. Should it be deemed necessary by the City, it shall be
the Artist's responsibility to see that the City receives documentation acceptable to
the City, which sustains that the individual signing said endorsement is indeed
authorized to do so by the insurance company. Also, the City has the right to
demand, and to receive within a reasonable time period, copies of any insurance policy
required under this Agreement.
In addition to any other remedies the City may have if Artist fails to
provide or maintain any insurance policies or policy endorsements to the extent and
within the time herein required, the City may, at its sole option, terminate this
Agreement.
City's termination of the Agreement, however, is an alternative to other
remedies the City may have, and is not the exclusive remedy for Artist's failure to
maintain insurance or secure appropriate endorsements.
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Nothing herein contained shall be construed as limiting in any way the
extent to which Artist may be held responsible for payments of damages to persons or
property resulting from Artist's, or Artist's respective agents' contractors' or
subcontractors', performance of the work covered under this Agreement.
ARTICLE XX. GENERAL
20.1 Any provisions of this Agreement, which shall prove to be invalid, void,
or illegal shall in no way affect, impair or invalidate any other provision hereof, and
such remaining provisions shall remain in full force and effect.
20.2 Whenever in the specifications any materials or process is indicated or
specified by patent or proprietary name or by name of manufacturer, such
specification shall be deemed to be used for the purpose of facilitating description of
the material and/or process desired, and shall be deemed to be followed by the words
"OR EQUAL", and Artist may offer any material or process which shall be equal in
every respect to that so indicated or specified.
20.3 Artist shall not offer any substitute in said proposal or if a substitute so
offered by Artist is not found to be equal to that so indicated or specified by name, if
one only be so specified or named, or, if more than one be so specified or named, then
such one as shall be specified in the proposal, or if none be so specified, then such
one as shall be required by the City.
20.4 Unless a different date is provided in this Agreement, the Effective Date
shall be the latest Date of Execution, hereinafter set forth below the names of the
signature hereto. Should the Artist fail to enter a Date of Execution, the Effective
Date shall be the Date of Execution by the City.
20.5 The City shall give any subsequent owner of the Artwork written notice
of the covenants contained herein, and shall cause each such successive owner to be
bound thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
CITY:
CITY OF LA QUINTA, a California
Mun7*Lororation
By. ,
THOMAS P. GENOVESE, City Manager
City of La Quinta, California
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ATTEST:
J N REEK, City Clerk
City of La Quinta, California
Z
OVE , TO FO
HERINE J ON, City At
City of La Quinta, California
ARTIST:
MARK LE WVEE
J. K. DESIGNS, INC. a Colorado Corporation
doing Ijusipess as the National Sculptors' Guild
By:
N W. KIAKPIDE, Preside
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EXHIBIT A
SCOPE OF DESIGN BUILD SERVICES
I. SCOPE OF WORK
1. Artist shall furnish all labor, engineering, material, tools, equipment, etc.,
required to design the Artwork in accordance with the quality level and intent of the
concept drawings as prepared by Artist and approved by the City, along with all
governing agency requirements and code criteria.
2. Artist is responsible for submitting all required documents relating to the
Artwork design to appropriate government agencies so that building plan check and all
required permits may be obtained in a timely manner.
3. Artist shall immediately notify the City in writing of any cost impact or
schedule impact whether increase or decrease, resulting from any modifications to the
design. Any redesign fees or any other costs incurred by the City due to Artist's
negligence or failure to keep the City informed of scope variances in a timely manner
shall be charged to the Artist.
4. Artist shall complete the design in sufficient scale and detail as required
by the City and governmental authorities for approval. The design documents shall
bear the stamp of a professional Mechanical, Structural and/or Electrical Engineer(s)
licensed in the State of California deemed necessary.
5. Artist's design and specifications shall be subject to approval by the City
and its consultants.
II. GENERAL ITEMS OF INCLUSION:
As a further clarification to the plans and specifications, the work shall include
but not necessarily be limited to the following:
1. Artist shall examine or cause to be examined all supporting and adjacent
surfaces and record any defects to the City prior to installing any material. The
installation of any material constitutes the Artist's complete acceptance of all
substrates as compatible with the work under this agreement.
2. Any work not provided for in this Agreement must be authorized by the City
prior to the installation of such work.
3. Artist is responsible for all repairs or replacement of any existing property
or work which is damaged as a result of the performance of the work under this
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Agreement.
4. Artist shall provide for all unloading, hoisting, scaffolding, and bracing for
the Artwork.
5. Artist shall provide all drilling, coring, cutting, fastening, and welding
required for the Artwork.
6. Artist shall provide all specialty lighting required to complete the artwork.
7. Artist shall supply all landscaping required to complete the Artwork.
111. SPECIFIC ITEMS OF INCLUSION
1. The Artwork consists of:
A large natural stone in earth tones with the approximate dimensions of
10 feet wide by 7 feet tall by 1.5 feet deep and placed in the location
designated on the Civic Center Campus.
Two badges, approximately six feet tall made _of two or more layers of
bronze and stainless steel. The badges will mounted on either side of the
stone.
The badges will be created out of separated layers of bronze and
stainless steel and will be cut using a waterjet process.
The colors of the badges will contrast with the natural stone.
Each badge will be lighted to accentuate the depth and definition.
The badges will be permanently attached to the stone.
Lighting will be installed to properly illuminate the art piece.
The City will provide the model badges for the police and fire
departments to be represented.
I The City will provide wording to be etched upon the stone.
The City will provide the wording to be etched upon a separate plaque to
be located next to the main sculpture. This plaque will be displayed in a
manner consistent with the main sculpture.
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Agreement-Badges.doc
EXHIBIT B
SCHEDULE OF PERFORMANCE
SCHEDULING:
The project will take approximately 180 days to complete the fabrication of the
Artwork upon submission of the information from the City.
Work will commence during the month of June 2004 and completed, installed
and functioning by approximately November 2004, contingent upon submission of the
information from the City.
REVIEWS:
There may be one review by the Cultural Arts Commission of the work in
progress if the Commission deems it necessary .
The project may be reviewed by the City Council as deemed appropriate.
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EXHIBIT C
SCHEDULE OF COMPENSATION
PRICE:
Basic Contract: $100,000
Total Not to Exceed $100,000
SCHEDULE OF PAYMENTS:
First payment due upon approval of $ 25,000
Art Purchase Agreement (25%)
Second payment due upon visual proof of purchase $25,000
of stone and stainless steel (25%)
Third payment due upon completion of fabrication $25,000
of badges (25% )
Final payment due upon filing Notice of Completion $ 25,000
(25%)
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EXHIBIT D
NOTICE OF COMPLETION FOR ARTWORK
Piece of Artwork:
WHEREAS, by that certain Art Purchase Agreement dated May 18, 2004
("Agreement"), THE CITY OF LA QUINTA, a California municipal corporation (the
"City") contracted with Mark Leichliter (Artist) and J. K. Designs, Inc., a Colorado
Corporation doing business as the National Sculptors' Guild (collectively referred to as
Artist) to provide certain "Artwork" (as defined in the Agreement); and,
WHEREAS, as referenced in the Agreement, the City shall furnish Artist with a
Notice of Completion upon completion of the fabrication and installation of the
Artwork; and,
WHEREAS, such certificate shall be conclusive determination of satisfactory
completion of the fabrication and installation of the Artwork, as required by the
Agreement, has been satisfactorily completed.
NOW, THEREFORE, the parties hereto certify as follows:
1. As provided in the Agreement, the City does hereby certify that the
fabrication and installation of the Artwork has been fully performed and completed.
Any executory obligations pursuant to the Agreement, which are hereby incorporated
herein by reference, shall remain enforceable according to their terms.
2. Nothing contained in this instrument shall modify in any other way any
executory portions of the Agreement.
day of
IN WITNESS WHEREOF, the City has executed this certificate this
.2004.
CITY OF LA QUINTA, a California
municipal corporation
by:
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EXHIBIT E
SITE LOCATION MAP
a
5
1.2
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