Dunham, Kathy & LQ Historical Society/Historic Plaques 11ART PURCHASE AGREEMENT
THIIS ART PURCHASE AGREEMENT (the "Agreement") is entered into this ( St day of
2011, by and among THE CITY OF LA QUINTA, a California municipal
corporation ("City"), LA QUINTA HISTORICAL SOCIETY ("Society") and KATHY DUNHAM
("Artist').
RECITALS
A. Society has requested approval for Historic Plaques (the "Project') on the properties
generally located at the following six locations: 1) La Quinta Historical Society Museum
(formerly Vale La Quinta); 2) El Ranchito Restaurant; 3) SilverRock Resort Clubhouse (formerly
Rancho Xochomilco); 4) La Quinta Resort; 5) Cove Casita (La Quinta Palms Realty); and 6) The
former Desert Club (Fritz Burns Park) (the "Properties"). The Project is subject to the artwork
requirements of the City of La Quinta Art in Public Places Program set forth in Chapter 2.65 of
the La Quinta Municipal Code (the "Municipal Code").
B. To meet the requirements for artwork pursuant to Chapter 2.65 of the Municipal Code,
Society is commissioning the fabrication and installation of certain artwork (the "Artwork") to
be installed and displayed by Artist on the Properties (the "Site Locations") to be determined by
City and Society.
NOW, THEREFORE, in consideration of the performance by the parties of the mutual promises,
covenants, and conditions contained hereinafter, the parties hereto agree as follows:
ARTICLE I. SCOPE OF SERVICES AND PAYMENT
1.1 Scope of Design and Fabrication Services. Subject to the terms and conditions set forth
in this Agreement, Artist shall (i) prepare, or cause to be prepared, conceptual design plans for
the Artwork, including setting forth details and samples of the materials to be used and
composition of the proposed Artwork; (ii) based on the conceptual design plans approved by
City and Society, develop working drawings that shall be incorporated into the Schedule of
Performance attached hereto as Exhibit A; and (iii) fabricate and install the Artwork as more
particularly described 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. Artist shall perform his/her obligations in strict conformance with the terms and
conditions set forth in this Agreement and shall take all other actions necessary and incidental
to the performance of said obligations.
1.2 Periodic Review. City and Society shall have the right to review the Artwork at
reasonable times during the fabrication thereof. Artist shall submit regular progress narratives,
including photographs, to City and Society as required by the Schedule of Performance set
forth in Exhibit B. The narratives shall clearly state the percentage of the Artwork completed
to date and provide an estimated completion date.
1.3 Materials and Labor. Artist shall furnish all tools, equipment, apparatus, labor, services,
materials, and transportation necessary to perform the Design and Fabrication Services more
fully described in Exhibit A and to install the Artwork, together with any appurtenances
thereto, in a good and workmanlike manner in the Site Location(s) as more fully described in
said Exhibit A or reasonably inferable therein. If Artist fails to furnish the labor, materials,
equipment, and or services necessary to perform all work and labor as herein provided in the
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manner herein set forth in good and workmanlike manner, Artist shall, in addition to any other
penalties provided in the Agreement, be liable to Society and City for all losses or damages
that either may suffer as a result of such failure, including any additional costs incurred by City
or Society in obtaining such material or labor from other sources.
1.4 Change Orders. Artist shall strictly adhere to the Scope of Design Build Services set
forth in Exhibit A, unless a change there from is authorized in writing by City and Society.
Artist shall present any and all significant changes to the Artwork not permitted by or in
substantial conformity with the approved working drawings and the. Scope of Design Build
Services set forth in Exhibit A to City and Society in writing in advance for their review and
approval. If City and Society grant such approval, the terms of said change shall be
memorialized in a written change order signed by all parties hereto prior to commencement of
said revised work. For the purposes of this section, 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 set forth in Exhibit A.
1.5 Working Environment. Artist land Society, if appropriate) shall, at all times, maintain a
safe work area and provide safe access to both the Artwork and the sites wherein the Artwork
is located prior to installation at the Site Locations for inspection of the Artwork by City and its
representatives.
1.6 Post -Fabrication Obligations.
a. Artist shall notify City and Society in writing when the fabrication of the
Artwork is completed and the Artwork is ready for delivery and installation at the Site
Locations designated in Exhibit A and Exhibit B.
b. Upon completion of the Artwork, and at all times during the fabrication and
installation process, Artist shall ensure that the Artwork complies with all applicable
statutes, ordinances and regulations of any governmental agency having jurisdiction
over the Artwork. Artist shall also ensure that the Artwork is installed in a safe
manner, and is designed to withstand the forces of nature it is expected to be exposed
to during its lifetime, including, but not limited to, wind, rain, sun, and earthquake, as
reasonable for artwork of a similar nature.
1.7 Post -Installation Obligations.
a. Artist shall be available at such reasonable time or times as may be agreed
between City and Artist to attend a presentation ceremony upon completion of the
Artwork.
b. Society shall use reasonable efforts to arrange for publicity for the completed
Artwork by local media and publications and as otherwise determined between City,
Society, and Artist as soon as practicable following installation.
C. Upon installation of the Artwork, Artist shall provide Society and City with
written instructions for appropriate maintenance and preservation of the Artwork.
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1.8 Final Acceptance.
a. Artist shall advise Society and City in writing when Artist believes that
installation of the Artwork at the Site Locations is complete. Following receipt of such
notice, Society and City shall promptly cause the installed Artwork to be inspected.
Within five (5) working days following completion of such inspections, City and Society
shall either (i) provide Artist with reasonably specific written objections, and a list of
necessary corrections to the installed Artwork that Artist must complete, or (ii) notify
Artist of their acceptance of the Artwork by issuing a Notice of Completion in the form
attached hereto as Exhibit D. Said Notice of Completion 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 City and Society of the ownership of the Artwork will occur
from the date of issuance of the Notice of Completion. At that time, ownership for
the three pieces of Artwork located on City property will transfer to the City and
ownership for the three pieces of Artwork located on private property will transfer to
the Society.
1.9 Risk of Loss. Artist shall bear the risk of loss or damage to the Artwork during the
fabrication and installation phases until Society and City issue the Notice of Completion
indicating their acceptance of the Artwork as provided in Section 1.8. Upon Artist's receipt of
the Notice of Completion, the risk of loss or damage to the Artwork shall be borne by the City
for the three pieces located on City property and by the Society for the three pieces located on
private property. Society shall take the measures described in Article VII of this Agreement, as
necessary, to protect the Artwork from loss or damage and shall maintain the Artwork located
on private properties.
1.10 Compensation to Artist: City agrees to pay Artist for the Artwork the compensation set
forth in Exhibit C. The total compensation to be paid to Artist shall not exceed $5,830 (Five
Thousand Eight Hundred Thirty Dollars). The parties agree that said compensation represents
full payment to Artist for the design, fabrication and installation of the Artwork, including
compensation for all professional services and reimbursement for expenses, and neither City
nor Society shall have any additional financial obligations under this Agreement.
ARTICLE 11. TIME OF PERFORMANCE
2.1 Time. Artist shall perform his/her obligations under this Agreement in a punctual and
diligent manner and in accordance with the Schedule of Performance attached hereto as
Exhibit B. In the event Artist fails to perform fully any and all of its obligations under this
Agreement, then City and/or Society may, at their option, after first giving twenty-four (24)
hours written notice to Artist, provide any such labor and materials as may be necessary for
the completion of the Artwork. In such event, City and/or Society may deduct the cost of said
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 Society or City is completely finished. Upon completion of the work, if the unpaid balance
of the amount to be paid to Artist under this Agreement exceeds the expenses incurred by
Society or City in securing labor and materials from other sources and/or in finishing Artist's
work, such excess shall be paid to Artist. Conversely, if the expenses incurred by City and/or
Society as described above exceed the unpaid balance due to Artist, then Artist shall promptly
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pay to City and/or Society the amount by which such expenses exceed the remaining unpaid
balance. The expense incurred by City and/or Society, as herein provided, shall be chargeable
to and paid by Artist.
ARTICLE III. WARRANTIES
3.1 Title. Artist represents and warrants that: (a) the Artwork is solely the result of the
artistic effort of the Artist and Artist is the creator and owner of the Artwork design; (b) that
the Artwork is unique and original and does not infringe upon any copyright; (c) that the
Artwork, or a duplicate thereof, has not been accepted for sale elsewhere; (d) that to the best
of his/her knowledge the Artwork is not presently subject to claims of ownership, lien or
encumbrance or to common law or statutory copyright claims of any other person, institution,
or domestic or foreign government; and (e) that the Artwork is free and clear of any and all
encumbrances and/or monetary liens. Artist covenants to defend, indemnify and hold City,
Society, and their respective officials, officers, employees, servants, attorneys, volunteers, and
agents harmless from any loss, claim or liability in any way related to a claim that the Artwork
violates federal, state or local laws, or any contractual provisions, relating to copyrights, trade
names, licenses, franchises, patents or other means of protecting interests in products or
inventions. Artist shall bear all costs arising from the use of patented, copyrighted, trade
secret or trademarked materials, equipment, devices or processes used on or incorporated in
the Artwork produced under this Agreement. In case such materials, equipment, devices or
processes are held to constitute an infringement and their use is enjoined, Artist shall, at
his/her expense, either (a) secure for City and Society the right to continue exhibiting the
Artwork by suspension of any injunction or by procuring a license or licenses for City and
Society; or (b) modify the Artwork so that it becomes non -infringing. The covenant and
warranties set forth in this Section 3.1 shall survive the termination of this Agreement.
3.2 Quality and Condition. Artist represents and warrants, except as otherwise disclosed to
City in writing, that: (a) the fabrication of the Artwork will be performed in a workmanlike
manner; (b) the Artwork, as fabricated and following 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 Artist to Society and City. The warranties described in
this Section 3.2 shall survive for a period of one (1) year after acceptance of the Artwork as
evidenced by a Notice of Completion issued in accordance with Section 1.8, except the
representation and warranty concerning latent defects shall survive for a period of three (3)
years from the acceptance of the Artwork. Society and/or City shall give notice to Artist of
any observed and claimed breach with reasonable promptness. Artist shall, at the request of
City or Society and at no cost to City or Society, cure reasonably and promptly the breach of
any such warranty which is curable by Artist and which cure is consistent with professional
conservation standards (including, for example, cure by means of repair or refabrication of the
Artwork).
ARTICLE IV. LOCATION AND DISPLAY OF ARTWORK
4.1 Location/Display. Notwithstanding any other provision of this Agreement, Artist hereby
acknowledges and agrees that all decisions regarding placement and location of the Artwork
are within the sole and absolute discretion of the Society and City, depending on location. The
City will be responsible for the location/display of the Artwork on City owned locations. The
Society will be responsible for coordination of location/display of the Artwork on private
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property locations. Artist further acknowledges and agrees that Society and City shall have
sole and absolute discretion to make alterations to, relocate, or remove and dispose of the
Artwork in their sole and absolute discretion. In the event Society and City elect to remove
and dispose of the Artwork, Society and/or City shall, subject to the provisions of Section 9.3
of this Agreement, notify Artist at least 30-days in advance of the proposed removal and
provide Artist an opportunity, at his/her sole costs, to take possession of and remove the
Artwork from the Site.
ARTICLE V. PARTY REPRESENTATIVES
5.1 City Representative. For the purposes of this Agreement, City's representative shall be
the Director of Community Services, or such other person as the Director designates in writing
(hereinafter the "City Representative"). It shall be Artist's and Society's responsibility to
assure that the City Representative is kept informed of the progress of the performance of the
services and obligations more particularly described in Exhibit A, and Artist and Society shall
refer any decisions which must be made by City to the City Representative. Unless otherwise
specified herein, any approval of City required hereunder shall mean the approval of the City
Representative.
5.2 Society Representative. For the purposes of this Agreement, Society's representative
shall be Linda Williams, or such other person as Society designates in writing (hereinafter the
"Society Representative"). The Society Representative shall be responsible during the term of
this Agreement for directing all activities of Artist and devoting sufficient time to personally
supervise the services provided by Artist hereunder. The Society Representative shall also be
responsible for overseeing and ensuring Society's performance of its obligations under this
Agreement. The Society Representative may not be changed by Society without the prior
written consent of City.
5.3 Artist Representative. For the purposes of this Agreement, Kathy Dunham ("Artist") is
the sole principal and representative of Artist authorized to act in his/her behalf with respect to
the services specified herein and make all decisions in connection therewith. It is expressly
understood that the experience, knowledge, capability and reputation of Artist were a
substantial inducement for City and Society to enter into this Agreement. Therefore, Artist
shall be responsible during the term of this Agreement for performing or directing all activities
of. Artist and devoting sufficient time to personally perform or supervise, as appropriate, the
services hereunder. Artist may not assign all or any of his/her obligations under this
Agreement without the prior written approval of both City and Society.
ARTICLE VI. OWNERSHIP OF ARTWORK
6.1 Ownership of Artwork. Title to the original renderings to produce the Artwork pursuant
to this Agreement shall pass to and vest with the City, title to the three pieces of Artwork
located on City property shall pass to and vest with the City, and title to the three pieces of
Artwork located on private property shall to and vest with the Society upon (i) the issuance of
the Notice of Completion acknowledging Final Acceptance pursuant to Section 1.9 or (ii)
Termination of the Agreement as provided in Article X hereinafter.
6.2 Title to Intellectual Property. Title to all copyright and other intellectual property rights
in the Artwork shall remain with Artist except as otherwise provided in this Agreement.
Notwithstanding the foregoing, Artist, on behalf of him/herself and his/her successors, heirs
and assigns, hereby grants in perpetuity to City and Society, successors and assigns, the right
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to photograph, film, videotape, or otherwise depict the Artwork at any time during the term of
this Agreement and to use such photographs, film, videotapes, or other depictions at any time
thereafter for commercial and noncommercial purposes to promote the City of La Quinta, or
the Project. Such uses shall give full artistic credit to Artist.
ARTICLE VII. ADDITIONAL SOCIETYS' OBLIGATIONS
7.1 Maintenance and Alteration of the Artwork. The Society shall maintain the three pieces
of Artwork located on private property in good condition in a location on the Property selected
in concert with or approved by City and private property owners. Society shall sign and record
a covenant and agreement ("Maintenance Covenant") in the form attached hereto as Exhibit E
and incorporated herein by this reference. The Maintenance Covenant shall, among other
requirements, ensure the proper maintenance of the three pieces of Artwork located on private
property and the transfer of title to the same. At a minimum, Society shall maintain the three
pieces of Artwork located on private property in a neat, aesthetic, and orderly manner in
accordance with the language recorded in the Maintenance Covenant, including, but not limited
to promptly removing any graffiti or damage from the elements.
7.2 Permanent Record. Society shall maintain records of all activities related to this
Agreement.
7.3 Location and Disposition. Society and City shall jointly select the initial locations for
placement of the Artwork on the Properties (the "Site Locations"). After installation of the
Artwork at the Site Locations by Artist, Society shall not thereafter change the location or
dispose of the Artwork without the prior written consent of City.
ARTICLE VIII. ADDITIONAL ARTIST OBLIGATIONS
8.1 Artist's Address. Artist shall notify City and Society of any change in address. City or
Society shall take reasonable effort(s) to locate Artist when matters arise relating to the
Artist's rights under this Agreement.
8.2 Surviving Covenants. The covenants and obligations set forth in this Article VIII shall be
binding upon the parties, their heirs, legatees, executors, administrators, assigns, transferees
and all their successors in interest, and 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 VIII.
8.3 Independent Contractor. Artist is, and shall at all times remain as to City and Society, a
wholly independent contractor. Artist shall have no power to incur any debt, obligation, or
liability on behalf of City or Society or otherwise act as an agent of City or Society. The City,
Society, nor any of their respective agents shall have control over the conduct of Artist or any
of Artist's employees (if any), except as set forth in this Agreement. Artist shall not, at any
time, or in any manner, represent that it or any of its officers, agents or employees are in any
manner employees of City or Society. Artist agrees to pay all required taxes on amounts paid
to Artist under this Agreement, and to indemnify and hold City and Society harmless from any
and all taxes, assessments, penalties, and interest asserted against City or Society by reason
of the independent contractor relationship created by this Agreement. Artist shall fully comply
with the workers' compensation law regarding Artist and its employees (if any). Artist further
agrees to indemnify and hold City and Society harmless from any failure of Artist to comply
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with applicable workers' compensation laws. City shall have the right to offset against the
amount of any fees due to Artist under this Agreement any amount due to City or Society from
Artist as a result of Artist's failure to promptly pay to City or Society any reimbursement or
indemnification arising under this Section 8.3.
ARTICLE IX. ARTIST'S RIGHTS
9.1 Identification. Society shall, at its expense, prepare and install at the Site Location, a
plaque identifying Artist, the title of the Artwork and the year of completion, and shall
reasonably maintain such notice in good repair for as long as the Artwork is displayed.
9.2 Repairs and Restoration.
a. City and Society 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. At Society's and City's option, Artist, during 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 Society, City and Artist
mutually agree in writing, prior to the commencement of any significant repairs or
restorations, upon Artist's fee for such services. Society and/or City shall have no
obligation to utilize the services of Artist in this respect if they choose to have the
repairs and restoration done by other professionals. 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.
9.3 Waiver of Rights. If any alteration is made to the Artwork without the consent of
Artist, Artist shall have the right to direct the Society to remove Artist's name from the
Artwork. In connection herewith, Artist hereby acknowledges and agrees that Artist is familiar
with the federal Visual Artists Rights Act 0 7 U.S.C. § § 106A and 1 13(d)), the California Art
Preservation Act (Cal. Civil Code § 987 et seq.), and the rights and protection afforded Artist
thereunder. Artist, on behalf of him/herself and on behalf of his/her successors, heirs, and
assigns, hereby waives, releases and disclaims any rights, demands or claims as may arise at
any time and under any circumstances against City, and its elected and appointed officials,
officers and employees arising under the federal Visual Artists Rights Act (17 U.S.C. § § 106A
and 113(d)), the California Art Preservation Act (Cal. Civil Code § 987 et seq.), and any other
local, state, federal or international laws that convey rights of the same nature, or any other
type of moral right protecting the integrity of works of art to the fullest extent permitted by
law. Without limiting the generality of the foregoing, Artist expressly waives any rights under
the federal Visual Artists Rights Act (17 U.S.C. §§ 106A and 113(d)►, the California Art
Preservation Act (Cal. Civil Code § 987 et seq.), and any other local, state, federal or
international laws relating to the location, placement, or removal and disposal of the Artwork.
ARTICLE X. ASSIGNMENT OR TRANSFER
10.1 Neither Artist nor Society shall assign or transfer any interest in this Agreement without
the prior written consent of City. If the assignment is approved the parties shall enter an
assignment and assumption agreement. Any attempt by Society or Artist to assign, transfer,
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or subcontract any rights, duties, or obligations arising hereunder without city's prior written
consent shall be null, void and of no effect.
ARTICLE XI. TERMINATION
11.1 Society and City may, at either their option, by written notice to 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 City to Artist ("Termination for Default"), or (b) at any other time in the sole and
absolute discretion of City and Society, acting together ("Discretionary Termination").
Termination for Default and Discretionary Termination are sometimes hereinafter collectively
referred to as "Termination." Upon Termination, except as provided in this Article X, 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 Society. In the event of a Discretionary Termination, Society shall
reimburse City for the full amount of Art in Public Places funding that was provided by City for
the Artwork. In such event and upon Artist's written request, Society shall remove Artist's
name from the Artwork.
ARTICLE XII. INSURANCE AND INDEMNIFICATION.
12.1 Insurance. Prior to commencing any work under this Agreement, and throughout the
duration of the term of this Agreement, Artist shall procure and maintain, at its sole cost, and
submit concurrently with its execution of this Agreement, insurance as described herein. All
insurance coverage required by this Agreement shall be placed with insurers authorized to do
business in the State of California with an A.M. Best and Company rating level of A- or better,
Class VI or better, unless otherwise approved by City's Risk Manager in writing.
12.1.1. Minimum Coverage. Insurance shall include the following (or broader)
coverage:
a. Insurance Services Office Commercial General Liability coverage
"occurrence" form CG 00 01 or its exact equivalent with an edition date prior to
2004 and with minimum limits of $1,000,000 per occurrence and $2,000,000
in the aggregate.
12.1.2. Required Endorsements. Liability insurance policies required to be
provided by Artist hereunder shall contain or be endorsed to contain the following
provisions:
a. City, Society, its employees, officials, agents and member agencies shall
be covered as additional insureds. Coverage shall apply to any and all liability
arising out of the Work or related to the Contract. Additional insured status
under the general liability requirement shall be provided on Insurance Services
Office Form CG 20 10 with an edition date prior to 2004, or its exact
equivalent. Additional insured status for completed operations shall be provided
either in the additional insured form or through another endorsement such as CG
20 37 with an edition date prior to 2004.
b. General liability insurance shall apply to each insured against whom a
claim is made or suit is brought, except with respect to the limits of the
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insurer's liability. Coverage will not be limited to City's or Society's vicarious
liability.
C. Liability coverage shall be primary and non-contributing with any
insurance maintained by City or Society.
d. Each policy required hereunder, and the associated evidence of coverage
(including employer's liability policies), shall provide that coverage shall not be
suspended, voided, canceled or reduced in coverage or in limits except after 30
days' prior written notice has been given to City and Society. Such provision
shall not include any limitation of liability of the insurer for failure to provide
such notice.
e. No liability insurance coverage provided to comply with this Agreement
shall prohibit Artist, or Artist's employees, or agents, from waiving the right of
recovery prior to a loss. Artist waives its right of recovery against City and
Society.
12.1.3. Verification of Coverage. Artist shall deposit with City within fifteen (15)
days of Notice to Proceed of the Contract certificates of insurance evidencing the
coverage required hereunder and all required endorsements.
12.1.4. No Waiver or Obligation. There shall be no recourse against City or
Society for payment of premiums or other amounts with respect to the insurance
required to be provided by Artist hereunder. Any failure, actual or alleged, on the part
of City or Society to monitor compliance with these requirements will not be deemed as
a waiver of any rights on the part of City or Society. City and Society have no
additional obligations by virtue of requiring the insurance set forth herein. In the event
any policy of insurance required under this Agreement does not comply with these
requirements or is canceled and not replaced, City and Society have the right but not
the duty to obtain the insurance it deems necessary and any premium paid by City or
Society will be promptly reimbursed by Artist or City will withhold amounts sufficient to
pay premium from Artist payments.
12.1.5. Prompt Notice. Artist agrees to provide immediate notice to City and
Society of any claim or loss against Artist arising out of the work performed under this
agreement. City and Society assume no obligation or liability by such notice, but has
the right (but not the duty) to monitor the handling of any such claim or claims if they
are likely to involve City or Society.
12.1.6. Subcontractors. Artist shall include all subcontractors, if any, as insureds
under its policies or shall furnish separate certificates and endorsements for each
subcontractor approved by City and Society. All coverages for subcontractors, if any,
shall be subject to all of the requirements stated herein unless otherwise approved in
advance in writing by City's Risk Manager.
12.2 Indemnification.
12.2.1. Indemnification. To the fullest extent permitted by law, Artist shall
indemnify, protect, defend and hold harmless City and Society and any and all of its
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officials, employees and agents ("Indemnified Parties") from and against any and all
liability, claims, suits, actions, arbitration proceedings, administrative proceedings,
regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged
or threatened, including, without limitation, incidental and consequential damages,
actual attorney fees incurred by City and Society, court costs, interest, defense costs
including fees of expert Artists or expert witnesses incurred in connection therewith
and any other costs or expenses of any kind whatsoever incurred in relation to, as a
consequence of or arising out of or in any way attributable, in whole or in part, to
Artist's performance of this Agreement. All obligations under this provision are to be
paid by Artist as City and Society incur them.
12.2.2Exception to Artist's Obligation to Indemnify. Without affecting the rights of
City or Society under any provision of this Agreement or this section, Artist shall not be
required to indemnify and hold harmless City or Society as set forth above for liability
attributable to the sole fault of City or Society, provided such sole fault is determined
by agreement between the parties or by the findings of a court of competent
jurisdiction. This exception will apply only in instances where City or Society is shown
to have been solely at fault and not in instances where Artist is solely or partially at
fault or in instances where City's or Society's fault accounts for only a percentage of
the liability involved. In those instances, the obligation of Artist will be all-inclusive and
City and Society will be indemnified for all liability incurred, even though a percentage
of the liability is attributable to conduct of City or Society.
12.2.3 Artist Acknowledgment. Artist acknowledges that its obligation pursuant to this
section extends to liability attributable to City and Society, if that liability is less than
the sole fault of City or Society.
12.2.41ndemnity Provisions for Subcontractors. Artist agrees to obtain executed
indemnity agreements with provisions identical to those set forth here in this section
from each and every subcontractor, sub tier Artist or any other person or entity
involved by, for, with or on behalf of Artist in the performance of this Agreement. In
the event Artist fails to obtain such indemnity obligations from others as required here,
Artist agrees to be fully responsible according to the terms of this section.
12.2.5 No Waiver; Survival. Failure of City or Society to monitor compliance with the
requirements of this Section 11.2 imposes no additional obligations on City or Society
and will in no way act as a waiver of any rights hereunder. Artist's obligation to
indemnify and defend City and Society as set forth herein is binding on the successors,
assigns, or heirs of Artist and shall survive the termination of this Agreement or this
section.
12.3 Remedies. In addition to any other remedies City and Society may have if Artist
fails to provide or maintain any insurance policies or policy endorsements to the extent
and within the time herein required, City or Society may, at its sole option:
a. Obtain such insurance and deduct and retain the amount of the premiums
for such insurance from any sums due under this Agreement.
b. Order Artist to stop work under this Agreement and/or withhold any
payment(s) which become due to Artist hereunder until Artist demonstrates
compliance with the requirements hereof.
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C. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to any other remedies City or
Society may have. The above remedies are not the exclusive remedies for Artist's failure to
maintain or secure appropriate policies or endorsements. 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 its subcontractors'
performance of work under this Agreement.
ARTICLE XIII. GENERAL PROVISIONS
13.1 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 (a) upon the delivery or receipt thereof, as the case may be, if delivered
personally or recognized overnight courier service; or (b) on the third business day following
deposit in the United States mail, sent by registered or certified mail, return receipt requested,
postage prepaid, to the addresses set forth below, or to such other addresses as the parties
may, from time to time, designate in writing pursuant to the provisions of this section. All
notices shall be addressed as follows:
CITY:
City of La Quinta
Attn: Community Services Director
P.O. Box 1504
78-495 Calle Tampico
La Quinta, CA 92247-1504
(760) 777-7032
ARTIST:
Kathy Dunham
55172 Oaktree
La Quinta, CA 92253
(760)771-6367.
SOCIETY:
La Quinta Historical Society
Attn: Linda Williams, President
P.O. Box 1283
La Quinta, CA 92253
(760) 564-1283
13.2 Nondiscrimination. In the performance of the services under this Agreement, neither
Artist nor City nor Society shall discriminate as to race, color, creed, religion, sex, marital
status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual
orientation. In addition, Artist shall comply with the equality of employment opportunity
provisions of State and local laws and regulations as presently existing or hereafter amended.
13.3 Entire Agreement, This Agreement and all exhibits attached hereto and incorporated
herein by specific reference, embodies the entire integrated agreement and understanding
between the parties hereto. 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. .
13.4 Modification. This Agreement and each of the terms embodied herein may be amended,
altered, changed, or modified only by a written instrument signed by each party hereto and
approved by appropriate action of City and Society.
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13.5 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.
13.6 Governing Law; Venue. This Agreement, regardless of where executed or performed,
shall be governed by and construed in accordance with the laws of the State of California. 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 the Indio Branch municipal court, or in the
Federal District Court in the district of California, which includes Riverside County.
13.7 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of
City, Society, and Artist, and their respective heirs, personal representatives, successors and
permitted assigns.
13.8 Severance. If a court of competent jurisdiction determines that any provision(s) of this
Agreement is invalid, void, or illegal, such provision(s) shall be severed from the Agreement
and shall in no way affect, impair or invalidate any other provision hereof, and such remaining
provisions shall remain in full force and effect.
13.9 Substitution. Whenever in the specifications of materials or process the Scope of
Services indicates or specifies materials or processes 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. Artist shall not offer any substitute material or
process 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 City or Society.
13.10 Effective Date. 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 Artist fail to enter a Date of Execution, the Effective Date shall be the Date of
Execution by City.
13.11 Force Majeure. In addition to specific provisions of Agreement, performance by any
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
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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 Society, City and
Artist.
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 Municipal
C(ororp�oraati�on
BY - ' J,,i-��Z2 �P
THOMAS P. GENOVESE, City Manager
ATTES .
VERONICA MO ECINO, CMC, City Clerk
City of La Qui ta, California
APPROVED AS TO FORM:
M. KATHERINE JENSON, City Attorney
City of La Quinta, California
SOCIETY: LA QUINTA HISTORICAL SOCIETY
in a Williams, President
ARTIST: K I�THY DUNHAM
State
Page 13 of 19
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 Society, City and
Artist.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year
first written above.
CITY:
0
VERONICA M9NTECINO, CMC, City Clerk
City of La 96inta, California
APPROVED AS TO F RM:
HERI JENSON, City t rney
City of La Quinta, California
SOCIETY:
ARTIST:
CITY OF LA QUINTA, a California Municipal
P. GENOVESE, City Manager
LA QUINTA HISTORICAL SOCIETY
By:
da illiams, President
Page 13 of 19
EXHIBIT A
SCOPE OF DESIGN BUILD SERVICES
SCOPE OF WORK
a. Artist shall furnish all labor, 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 City and Society.
b. Artist shall complete the design in sufficient scale and detail as required by City and
Society authorities for approval.
C. Artist's design and specifications have been approved by City and Society. No changes
shall be made without approval of City and Society.
Il. GENERAL ITEMS OF INCLUSION:
The work shall include but not necessarily be limited to the following:
a. Artist shall examine or cause to be examined all supporting and adjacent surfaces and
record any defects to Society and 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.
b. 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 Agreement.
C. Artist shall provide for all unloading, hoisting, and bracing for the Artwork.
d. Artist shall provide all drilling, coring, cutting, fastening required for the Artwork.
III. SPECIFIC ITEMS OF INCLUSION
The creation of historical plaques incorporating images of selected historical buildings in the
City of La Quinta. The plaques will be mounted in a conspicuous location on each building and
will include a rendering of the building and a description with historical data.
There will be 6 (six) plaques designated at the following sites:
• La Quinta Historical Society Museum
• SilverRock Resort Clubhouse (formerly Rancho Xochomilco)
• La Quinta Resort Hotel
• El Ranchito Restaurant
•. Cove casita (La Quinta Palms Realty)
• The former Desert Club (Fritz Burns Park)
Each plaque will consist of two 12"x12" ceramic tiles, side by side, surrounded by a wrought
iron, angle iron frame with several decorative scrolls. The first tile will have an image of the
building and the second tile will contain text giving historical information.
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An original piece of artwork will be created representing each of the selected buildings. The
artwork will be digitally transferred to ceramic tile and fired for permanency. The tiles are UV
fade resistant and anti -graffiti treated. Both treatments are designed to last the life of the tile.
The completed tiles will be adhered to a weather resistant backing which will be mounted in a
decorative wrought iron frame. The completed plaque will be professionally mounted to each
building in a visible location.
Each original piece of art will consist of an 11" x 11" ink rendering with watercolor. The
City of La Quinta will retain ownership of the original art, copyright remains with the Artist.
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EXHIBIT B
SCHEDULE OF PERFORMANCE
Upon final approval of the Agreement, the Artist will initiate the process of creating the
individual images, which shall be completed within five weeks. Once the images have been,
approved by the City and the Society, Artist will create the tiles within four weeks from receipt
of the City's and Society's approval of original artwork. Such approvals can either be provided
on a piece by piece basis or all at one time. Artist will arrange for a local vendor who will
make and install the frame. This framing and installation process shall be completed within six
weeks, subject to the Artist's accessibility to each building. Approximate time for completion
of the Project (excluding any unforeseen complications) shall be 120 days once the City's and
the Society's approvals of the individual images are issued.
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EXHIBIT C
SCHEDULE OF COMPENSATION
SCHEDULE OF PAYMENT TO ARTIST BY CITY:
City shall pay Artist a deposit in the amount of: $3,400
City shall pay Artist after completion of final image: $2,430
Total Not to Exceed:
$5,830
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EXHIBIT D
NOTICE OF COMPLETION FOR ARTWORK
Piece of Artwork:
WHEREAS, by that certain Art Purchase Agreement dated , 20 ("Agreement"), The
City of La Quinta, a California municipal corporation ("City") contracted with
("Society") and ("Artist") to provide certain
"Artwork" (as defined in the Agreement); and,
WHEREAS, as referenced in the Agreement, City and Society 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, City and Society do hereby certify that the fabrication
and installation of the Artwork has been fully performed and completed.
2. Nothing contained in this instrument shall modify in any other way any executory
portions of the Agreement.
IN WITNESS WHEREOF, City has executed this certificate this day of , 20_.
CITY OF LA QUINTA, a California
Municipal Corporation
32
M
Page 18 of 19
EXHIBIT E
PUBLIC ART MAINTENANCE AGREEMENT
Pursuant to Article VII. Additional Society's Obligation of this Art Purchase Agreement,
Society is obligated to maintain certain Artwork as follows:
1. Maintenance of the Public Art. Society, its successors, assigns, and any successor in
interest to the Property, covenants and agrees to maintain the three pieces of Artwork located
on private property in accordance with the "Reasonable Standards," as hereinafter defined.
Said Artwork includes, but is not limited to, adjacent sidewalks, pedestrian lighting, and
landscaping which is part of the Artwork. To accomplish the maintenance, the Society shall
either staff or contract with qualified and if required by law, licensed personnel to perform the
maintenance work, including the provision of labor, equipment, materials, support facilities, and
any and all other items necessary to comply with the requirements of this Agreement. The
obligations of Society regarding maintenance of the Artwork in accordance with this paragraph
1 are referred to herein as the "Society Obligations."
2. Reasonable Standards. The three pieces of Artwork located on private property shall be
maintained in accordance with the custom and practice generally applicable to comparable high
quality commercial properties located within the City, including but not limited to, periodic
cleaning of all exterior surfaces.
3. failure to Maintain Artwork. In the event the Society does not maintain the three
pieces of Artwork located on private property in the manner set forth herein and in accordance
with Reasonable Standards, the City shall have the right to maintain the Artwork, or to
contract for the correction of such deficiencies, after written notice to the Society. However,
prior to taking any such action, the City agrees to notify the Society in writing if the condition
of the Artwork does not meet with Reasonable Standards and to specify the deficiencies and
the actions required to be taken by the Society to cure the deficiencies. Upon notification of
any maintenance deficiency, the Society shall have thirty (30) days within which to
commence, and thereafter diligently correct, remedy or cure the deficiency. If the written
notification states the problem is urgent and relates to public health and safety, the Society
shall have forty-eight (48) hours to commence to rectify the problem.
A. Right to Maintain. In the event the Society fails to correct, remedy, or cure or
has not commenced correcting, remedying or curing such maintenance deficiency after
notification and after the period of correction has lapsed, then the City shall have the
right.to maintain the three pieces of Artwork located on private property. The Society
agrees to pay the City such charges and costs incurred by the City in curing such
maintenance deficiency.
SOCIETY: / \
Datedk(�?-11/ BY \
Page 19 of 19
EXHIBIT D
NOTICE OF COMPLETION FOR ARTWORK
Pieces of Artwork: Historical Plaques
WHEREAS, by that certain Art Purchase Agreement dated June 1, 2011 ("Agreement"), The
City of La Quinta, a California municipal corporation ("City") contracted with La Quinta
Historical Society ("Society") and Kathy Dunham ("Artist") to provide certain "Artwork" (as
defined in the Agreement); and,
WHEREAS, as referenced in the Agreement, City and Society 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, City and Society do hereby certify that the fabrication
and installation of the Artwork has been fully performed and completed.
2. Nothing dontained in this instrument shall modify in any other way any executory
portions of the Agreement.
IN WITNESS WHEREOF, City has executed this certificate this 23rd day of Septemberi 2011.
CITY OF LA QUINTA, a California
Municipal Corporation
By: IA y ton, mmuni y Servicesvector
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