RFQ - Artist List Pre-Qualification
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REQUEST FOR QUALIFICATIONS
The City of La Quinta (City) seeks proposals from qualified artists who work in a variety
of visual media to be approved for the Pre-Qualified Artist List.
Project/Services Title: Pre-Qualified Artist List
Issue Date: October, 8, 2021
DUE DATE: November, 19, 2021
Requesting Department: Community Resources Department
GENERAL TERMS AND CONDITIONS
1. SUBMISSION REQUIREMENTS
Proposals must be submitted via email or USB and must bear original or electronic signatures.
Submissions may be up to ten (ten) pages (excluding cover page and required attachments)
which shall be delivered via email as a .PDF format or a USB to the following contact:
City of La Quinta
Attn: Michael Calderon, Community Resources Analyst
78495 Calle Tampico
La Quinta, California 92253
Tel: (760) 777 – 7014
Email: mcalderon@LaQuintaCA.gov
Email Subject: RFQ – Pre-Qualified Artist List
2. SUBMISSION RESTRICTIONS
All proposals must be submitted in writing; no oral, facsimile, or telephone proposals or
modifications will be considered. Proposals received after the due date and time are considered
non-responsive, and will be returned unopened.
3. QUESTIONS or REQUESTS FOR CLARIFICATIONS
Any requests for clarification or other questions concerning this RFQ must be submitted in writing
by October, 29, 2021; and sent via email to Michael Calderon, Community Resources
Analyst, mcalderon@laquintaca.gov.
4. ERRORS AND OMISSIONS
If a proposer discovers any ambiguity, conflict, discrepancy, omission, or other error in the RFQ
or any of its attachments, he/she shall immediately notify the City of such error in writing and
request modification or clarification of the document. Modifications will be made by addenda.
Clarifications will be provided in writing to all parties who have submitted proposals or who have
requested an RFQ for purposes of preparing a proposal, without divulging the source of the
request.
If a proposer fails to notify the City prior to the date fixed for submission of proposals of an error
in the RFQ known to him/her, or an error that reasonably should have been known to him/her,
he/she shall submit a proposal at his/her own risk, and if he /she is awarded an agreement,
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he/she shall not be entitled to additional compensation or time by reason of the error or any
corrections thereof.
5. MODIFICATIONS AND WITHDRAWALS OF SUBMITTED PROPOSALS
Proposer may withdraw proposals prior to the Submittal Deadline by submitting a written
request to Michael Calderon, Community Resources Analyst, at mcalderon@LaQuintaCA.gov.
Withdrawn proposals will be returned unopened.
Proposers may modify proposals prior to the Submittal Deadline by withdrawing their proposal
as noted above and re-submitting anew before the Submittal Deadline.
6. ADDENDA
The City may modify this RFQ, any of its key action dates, or any of its attachments, prior to the
submittal deadline. Addenda will be numbered consecutively and noted following the RFQ title.
It is the proposer’s responsibility to ensure they have incorporated all addenda. Failure to
acknowledge and incorporate addenda will not relieve the proposer from the responsibility to
meet all terms and conditions of the RFQ and any subsequent addenda.
7. REJECTION OF PROPOSALS
The City may reject any or all proposals in whole or in part for any reason, including suspicion
of collusion among proposers, and may waive any immaterial deviation in a proposal. The City’s
waiver of an immaterial defect shall in no way modify the RFQ as published or excuse the
proposer from full compliance with the specifications if he/she is awarded the agreement.
Proposals referring to terms and conditions other than the City’s terms and conditions as listed
in the RFQ, may be rejected as being non-responsive.
The City may conduct an investigation as deemed necessary to determine the ability of the
proposer to perform the work, and the proposer shall furnish to the City all such information and
data for this purpose as requested by the City. The City reserves the right to reject any proposal
if the evidence submitted by, or investigation of, such proposer fails to satisfy the City that such
proposer is properly qualified to carry out the obligations of the agreement and to complete the
work specified.
8. CANCELLATION OF RFQ
This RFQ does not obligate the City to enter into an agreement. The City reserves the right to
cancel this RFQ at any time, should the project be cancelled, the City loses the required funding,
or it is deemed in the best interest of the City. No obligation, either expressed or implied, exists
on the part of the City to make an award or to pay any cost incurred in the preparation or
submission of a proposal.
9. DISPUTES/PROTESTS
The City encourages proposers to resolve issues regarding the requirements or the procurement
process through written correspondence and discussions during the period in which clarifying
addenda may be issued. The City wishes to foster cooperative relationships and to reach a fair
agreement in a timely manner. Formal proposals for major professional and technical services
shall be governed by the City’s Purchasing Policy.
10. NEGOTIATIONS AND FINAL AGREEMENT
The City’s Art Purchase Agreement is enclosed as Attachment 1 for review prior to submitting a
proposal. An agreement will not be binding or valid with the City unless and until it is executed
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by authorized representatives of the City and of the selected proposer. At the discretion of the
City, any or all parts of the successful proposal shall be made a binding part of the agreement.
11. PRICING ADJUSTMENTS
The City reserves the right to negotiate final pricing with the most qualified proposer. Pricing
shall remain firm for the entire initial term of the agreement. Thereafter, any proposed pricing
adjustment for additional periods, if any, shall be subject to the terms of the agreement.
12. SELECTION PROCESS
Statements of Qualifications shall be reviewed and rated based on the information requested by
this RFQ, as well as responses from references and clients, background checks, any research on
proposers, and other information pertinent to the evaluation process. Closely ranked firms may
be asked to furnish evidence of capability, equipment, and financial resources to adequately
provide the services.
13. RFQ TIMELINE
RFQ Issue Date:
October 8, 2021
Deadline for Proposers’ Questions:
October 29, 2021
City’s Response to Questions:
November 12, 2021
Proposals Submittal Deadline:
November 19, 2021
Complete Evaluations of Proposals:
December 13, 2021
14. PROPRIETARY, CONFIDENTIAL, AND PUBLIC INFORMATION
14.1 Proprietary and Trade Secret Information:
A copy of each proposal will be retained as an official record and will become open to
public inspection, unless the proposal or specific parts can be shown to be exempt by the
California Public Records Act [California Government Code §6250 et seq.]. Each proposer
may clearly label part of a proposal as “Confidential” if the proposer thereby agrees to
indemnify and defend the City for honoring such a designation. The failure to so label any
information that is released by the City will constitute a complete waiver of all claims for
damages caused by any release of the information. If a request for public records for
labeled information is received by the City, the City will notify the proposer of the request
and delay access to the material until seven working days after notification to the
proposer. Within that time delay, it will be the duty of the proposer to act in protection
of its labeled information. Failure to so act will constitute a complete waiver.
14.2 Confidential Information:
Evaluation scores, weight factors, and negotiation notes are confidential and will not be
released or retained [California Government Code §6254(a)].
14.3 Public Information:
All proposals will be opened on December 6, 2021, and will be made available to the public
upon request. By submitting a proposal, the proposer acknowledges and accepts that the
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content of the proposal and associated documents will become open to public inspection.
The final, executed agreement will be a public document. Proposals and other information
will not be returned.
15.PROPOSAL PREPARATION COSTS
Any costs incurred in the preparation of a proposal, preparation of changes or additions
requested by the City, presentation to the City, travel in conjunction with such presentations, or
samples of items, shall be entirely the responsibility of the proposer.
16.INSURANCE REQUIREMENTS and ACKNOWLEDGEMENT
Proposals must include a completed “Insurance Requirements Acknowledgment” form included
as Attachment 2 stating that, if selected, the proposer will provide the minimum insurance
coverage and indemnification noted in Exhibits E and F, respectively, of the City’s Agreement for
Contract Services.
Commercial General Liability (at least as broad as ISO CG 0001)
$1,000,000 (per occurrence); $2,000,000 (general aggregate)
Must include the following endorsements:
General Liability Additional Insured
General Liability Primary and Noncontributory
Commercial Auto Liability (at least as broad as ISO CA 0001)
$1,000,000 (per accident)
Personal Auto Declaration Page if applicable
Errors and Omissions Liability $1,000,000 (per claim and aggregate)
Worker’s Compensation (per statutory requirements)
Must include the following endorsements:
Worker’s Compensation Waiver of Subrogation
Worker’s Compensation Declaration of Sole Proprietor if applicable
17.NON-COLLUSION AFFIDAVIT
Proposals must include an executed Non-Collusion Affidavit, included as Attachment 3, executed
by an official authorized to bind the firm.
18.CONFLICT OF INTEREST
The City requires a Statement of Economic Interest (Form 700) to be filed by any proposer who
is involved in the making of decisions which may have a foreseeable material effect on any City
financial interest pursuant to the City’s Conflict of Interest Code and the California Political
Reform Act of 1974.
19.LOCAL BUSINESS PREFERENCE
Local vendors are encouraged, but not required. For purposes of this section, ‘local’ shall be
defined as an individual, partnership, or corporation, which regularly maintains a place of
business within a 40-mile radius of the City.
20.CITY RIGHTS AND OPTIONS
The City reserves the right to:
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▪Make the selection based on its sole discretion;
▪Issue subsequent RFQ;
▪Postpone opening proposals or selection for any reason;
▪Remedy errors in the RFQ or in the RFQ process;
▪Modify the Scope of Services in the RFQ;
▪Approve or disapprove the use of particular subcontractors;
▪Negotiate with any, all or none of the proposers;
▪Accept other than the lowest offer;
▪Waive informalities and irregularities in proposals;
▪Request additional information or clarification;
▪Request revisions during negotiations;
▪Invite any consultant of its choosing to assist with the evaluation of proposal responses
or to provide the City with a second opinion
▪Enter into an agreement with another proposer in the event the originally selected
proposer defaults or fails to execute an agreement with the City in a timely manner.
REQUESTED SERVICES
The City of La Quinta (City) seeks proposals from qualified artists to be approved for the Pre-
Qualified Artist List.
I.INTRODUCTION
The City of La Quinta’s Art in Public Places Program (APP) seeks to establish a new pre-qualified
list of emerging and established artists and artist teams working in a variety of visual media and
artistic approaches for the Pre-Qualified Artist List. APP gives voice to the city’s creative spirit –
shaping La Quinta’s visual identity, defining places that anchor the community, and contributing
to the city’s evolution as a dynamic destination. The program seeks to:
•Enhance the quality of life of residents,
•Support creative and professional growth of the arts community,
•Support economic growth,
•Enhance the experience visitors have of La Quinta, and
•Promote authentic images of La Quinta as a unique place, community, and destination.
The APP Pre-Qualified Artist List is open to receive applications from artists who are interested
in being considered for public art projects. The list is used to streamline the selection process
and opens every two years for artists to submit their information. Once submitted, artists can
remain on the eligibility list for five years before re-applying. As public art projects arise, artists
will be selected from the list for review and consideration. The City of La Quinta requests
qualifications from professional visual artists or artist teams who live in the United States. Artists
living within a 150-mile radius of La Quinta are strongly encouraged to apply.
II.SCOPE OF SERVICES
Artists selected for the Pre-Qualified Artist List may be considered for a variety of Citywide public
art opportunities including murals, sculptures, paintings, live art demonstrations, and utility box
art installations. As opportunities arise, staff will contact artists on the list to request design and
concept proposals which will undergo a review process of approval.
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III.PROPOSAL FORMAT
Firms and/or artists are encouraged to keep their proposals brief and relevant to the specific
information requested herein. Proposals should be straightforward, concise, and provide
“layman” explanation of technical terms that are used. Emphasis should be on completeness
and clarity of content.
Present the proposals in a format and order that corresponds to the numbering and
lettering contained herein, with minimal reference to supporting documentation, so that
proposals can be accurately compared.
1.Cover Letter
Signed by an official authorized to bind the firm with name, address, phone number, and
email address of firm’s contract person, location of firm’s main office, location of the office
that would service this project, a validity statement that all information and pricing provided
in the proposal is valid for at least ninety (90) days, and a statement that any individual
who will perform work for the City is free of any conflict of interest.
Statement of Qualifications including the following:
(a)A brief description of your interests, qualifications, and explanation of the unique
attributes your work will bring to La Quinta
(b)Current resume (Artist teams must submit a resume for each member)
(c)Six (6) images of completed past artworks including artwork information such as title
of work, dimensions, medium, year of completion, brief descriptions, and value or
budget amount of each artwork.
(d)Artist teams must submit images of work that demonstrates a collaborative effort to
create an artwork by all members of the team. In the Letter of Interest please state
how the team has worked collaboratively in the past and what role each team
member played. When applying as a team you are expected to accept a commission
as a team throughout the five-year term eligible for the artist list. If your team
dissolves, individuals will not be considered for commissions and each artist must re -
apply individually.
2.References
(a)Client name, client project manager, telephone number, and email address
(b)Project description
(c)Project start date, and end date
(d)Staff assigned to each project by the firm
(e)Provide a summary of final outcome
3.List of Complementary Services Offered by Proposer along with Corresponding
Prices
4.Staffing and Project Organization
5.Subcontracting Services
Subcontracting any portion(s) of the Scope of Services is not preferable; however, if a
proposer can demonstrate to the City’s satisfaction that is in the best interest of the project
to permit a portion of the service(s) to be subcontracted by the proposer, it may be
considered. Provide details on the role of any subcontractor that will be used. Assignment
is prohibited.
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6. Disclosures
Disclosure of any alleged significant prior or ongoing agreement failure, any civil or criminal
litigation or investigation pending, which involved the proposer or in which the proposer has
been judged guilty or liable within the last five (5) years. If there is no information to
disclose, proposer must affirmatively state there is no negative history.
7. Acknowledgement of Insurance Requirements (Attachment 2)
Proposals must include a written statement that, if selected, the proposer will provide the
minimum insurance coverage and indemnification noted in Exhibits E and F, respectively,
of the City’s Agreement for Contract Services included as Attachment 1.
8. Non-Collusion Affidavit (Attachment 3)
Proposals must include an executed Non-Collusion Affidavit, included as Attachment 3,
executed by an official authorized to bind the firm.
9. Acknowledgement of Addenda (Attachment 4)
If any addendum/addenda are issued, the proposer shall initial the Acknowledgement of
Addenda, included as Attachment 4.
ATTACHMENTS
1. Art Purchase Agreement
2. Insurance Requirements Acknowledgement
Must be executed by proposer and submitted with the proposal
3. Non-Collusion Affidavit
Must be executed by proposer and submitted with the proposal
4. Addenda Acknowledgement
Must be executed by proposer and submitted with the proposal
5. Review Criteria
ART PURCHASE AGREEMENT
THIS ART PURCHASE AGREEMENT (the “Agreement”) is entered into and
effective this _____ day of _____________ , by and among THE CITY OF
LA QUINTA, a California municipal corporation (“City”), and [name]
(“Artist”).
R E C I T A L S
A.A goal of the Cultural Resources Element of the 2035 La Quinta General
Plan (“General Plan”) is to provide enrichment of the community by adequate
cultural and recreational facilities and activities. To implement this goal, the
General Plan further states that the cultural resources of a city encompass
those facilities and programs which refresh, enhance or recreate people’s
bodies and spirits. Community parks, recreational activities, historic
resources, library facilities and art festivals are included in this classification.
The art in public places program is intended to achieve this purpose by
providing visual art throughout the City.
B.The City Council has previously determined that visually pleasing and
high quality public art enhance the public safety and welfare of La Quinta
residents and visitors. For the benefit of its citizens and visitors, the City
Council is commissioning the creation and installation of certain artwork (the
“Artwork”) by Artist to be located in [insert location] (the “Site Location”):
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,
develop working drawings which shall be incorporated into the Schedule of
Performance attached hereto as Exhibit B; 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 (the “Design and
Fabrication Services”). 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.
ATTACHMENT 1
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1.2 Periodic Review. City shall have the right to review the Artwork at
reasonable times during the fabrication thereof. Artist shall submit to City
regular progress narratives, including photographs, 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 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 manner herein set forth in good and workmanlike manner,
Artist shall, in addition to any other penalties provided in this Agreement, be
liable to City for all losses or damages that City may suffer as a result of such
failure, including any additional costs incurred by City in obtaining such
material or labor from other sources. It is understood and agreed that all said
labor, services, materials, equipment, and facilities shall be furnished and said
work performed and completed by Artist as an independent contractor, subject
to the inspection and approval of City.
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. Artist shall present to City in writing for its review and advance
approval 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. If City grants such approval, the
terms of said change shall be memorialized in a written change order signed
by the 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 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 Location for inspection of the
Artwork by City and its representatives.
1.6 Testing and Inspections. Where specifications require the Artwork to be
specially tested or approved, Artist shall not perform such testing, or cause
such testing to be performed, until (1) Artist has first provided timely notice
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to City that the Artwork is ready for inspection and/or testing, and (2) City
has inspected and approved of the Artwork or consented to said testing in
writing. Artist shall, at its sole cost and expense, perform all work required
to comply with scheduled inspections and testing, and any requests for
corrections City or other inspection authorities make as a result of such
inspections or testing.
1.7 Post-Creation Obligations.
a.Artist shall notify the City in writing when the fabrication of the
Artwork is complete and ready for delivery and installation at the Site
Location.
b.Upon completion of the Artwork, and at all times during creation
and installation of the Artwork, the Artist shall comply with all applicable
statutes, ordinances, and regulations of any governmental agency
having jurisdiction over Artist or the Artwork.
c.Artist shall 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,
and sun, as reasonable for artwork of a similar nature. Artist is not
responsible for repair or replacing the Artwork due to vandalism,
earthquake, or other casualty.
1.8 Post-Installation Obligations.
a.Artist shall be available at such reasonable time or times as may
be agreed between City and Artist to attend any and all inauguration,
ground breaking, or presentation ceremonies upon completion of the
Artwork.
b.City shall have the right to arrange for publicity for the completed
Artwork by local media and publications and as otherwise as may be
determined by City, in its sole and absolute discretion, following
installation.
c.Upon installation of the Artwork, Artist shall provide City with
written instructions for appropriate maintenance and preservation of the
Artwork.
1.9 Final Acceptance. Artist shall advise City in writing when Artist believes
that the Artwork and the installation of the Artwork at the Site Location are
complete. Following receipt of such notice, City shall cause the installed
Artwork to be inspected. Within five (5) working days following completion of
such inspection(s), City shall either (i) provide Artist with reasonably specific
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written objections, and a list of necessary corrections to the installed Artwork
that Artist must complete, or (ii) notify Artist of its 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.
1.10 Risk of Loss. Artist shall bear the risk of loss or damage to the Artwork
during fabrication and installation until City issues the Notice of Completion
indicating its acceptance of the Artwork as provided in Section 1.9. Upon
Artist’s receipt of the Notice of Completion, the risk of loss or damage to the
Artwork shall be borne by City. Prior to City’s issuance of the Notice of
Completion, 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 final acceptance by City.
1.11 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 $90,000 (Ninety Thousand 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 City shall have no
additional financial obligations under this Agreement.
ARTICLE II. 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 the covenants and obligations under this Agreement, then
City may, at its option, after first giving fifteen (15) days written notice to
cure to Artist, provide any such labor and materials as may be necessary for
the completion of the Artwork. In the event Artist fails to cure within the
fifteen (15) day period, City 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 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 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 as described above exceed
the unpaid balance due to Artist, then Artist shall promptly pay to City the
amount by which such expenses exceed the remaining unpaid balance. The
expenses incurred by City, as herein provided, shall be chargeable to and paid
by Artist.
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ARTICLE III. WARRANTIES
3.1 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) 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; (d) 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
(with counsel selected by City), indemnify and hold City, and City’s elected
and appointed officials, officers, employees, servants, attorneys, volunteers,
and agents harmless from any loss, claim, or liability in any way related to a
claim that 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 the right to continue exhibiting the
Artwork by suspension of any injunction or by procuring a license or licenses
for City; 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 i n 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 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 1.9, except the representation and warranty
concerning latent defects shall survive for a period of three (3) years from the
acceptance of the Artwork. City shall give written notice to Artist of any
observed and claimed breach with reasonable promptness. Artist shall, at the
request of City, and at no cost to City, 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,
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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 City shall have sole
and absolute discretion on the determination of the location and placement of
the Artwork at the Site Location. Artist further acknowledges and agrees that
City may determine to remove the Artwork in its sole and absolute discretion.
ARTICLE V. PERFORMANCE BONDS
5.1 Bonds. Artist shall not be required by City to post any performance
bonds or similar undertakings. Nevertheless, Artist shall prevent any lien from
attaching to the Artwork or the Site Location by any person or entity claiming
under Artist.
ARTICLE VI. PARTY REPRESENTATIVES
6.1 City Representative. For the purposes of this Agreement, City’s
representative shall be the Director of Community Services, or such other
person as that Director designates in writing (hereinafter the “City
Representative”). It shall be Artist’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
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.
6.2 Artist Representative. For the purposes of this Agreement, [Name]
(“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 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 City.
ARTICLE VII. OWNERSHIP OF ARTWORK; REPRODUCTION RIGHTS
7.1 Ownership of Artwork. Title to the Artwork and any construction
drawings, plans, or other work product generated pursuant to this Agreement
shall remain with the Artist during installation and shall pass to and vest in
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City upon (i) the commencement of the installation process and the full
payment of the compensation described in Exhibit C or (ii) Termination of this
Agreement.
7.2 Intellectual Property. Upon issuance of the Notice of Completion, title
to all copyright and other intellectual property rights in the Artwork shall also
pass to and vest in City. City shall have all rights under the Copyright Act of
1976, 17 U.S.C. Sections 101 et seq., and all other rights in and to the
Artwork, including ownership and possession. Artist shall retain no rights in
the Artwork and shall have no rights under the Copyright Act of 1976, 17
U.S.C. Sections 101 et seq. In view of the intention that the Artwork shall be
unique, Artist shall not make any duplicates or reproductions of the final
artwork, nor shall Artist grant permission to others to do so. The parties
recognize that City alone may grant such approval. City and its assigns may
make reproductions of the Artwork for commercial purposes, including but not
limited to reproductions used in posters, advertising, brochures, media
publicity, and catalogues, provided that these rights are exercised in a tasteful
and professional manner. All proceeds from such reproductions shall belong
to the City. All reproductions of the Artwork by City shall include a credit to
Artist and identify the location of the Artwork.
ARTICLE VIII. ADDITIONAL ARTIST OBLIGATIONS
8.1 Artist’s Address. Artist shall notify City of any change in address. City
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 VII 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 VII.
8.3 Independent Contractor. Artist is, and shall at all times remain as to
City, a wholly independent contractor. Artist shall have no power to incur any
debt, obligation, or liability on behalf of City or otherwise act as an agent of
City. Neither City nor any of its 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. Artist agrees to pay all required taxes on amounts paid to Artist under
this Agreement, and to indemnify and hold City harmless from any and all
taxes, assessments, penalties, and interest asserted against City by reason of
Last Revised April 2015 Page 8 of 25
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 harmless
from any failure of Artist to comply 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 from Artist as a result
of Artist’s failure to promptly pay to City any reimbursement or indemnification
arising under this Section 7.3.
ARTICLE IX. ARTIST’S RIGHTS AND RELATED CITY’S OBLIGATIONS
9.1 Identification. The Artist shall place his or her signature on [insert
location] 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 Maintenance. The parties recognize that maintenance of the Artwork on
a regular basis is essential to the integrity of the Artwork. Until such time as
City determines it no longer wishes to display the Artwork, City shall maintain
the Artwork.
9.3 Repairs and Restoration.
a. 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. At 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 City and Artist mutually agree in writing, prior to
the commencement of any significant repairs or restorations, upon
Artist's fee for such services. City shall have no obligation to utilize the
services of Artist in this respect if it chooses 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.
9.4 Maintenance, Alteration and Removal of the Artwork.
a. City shall maintain Artwork in a manner that City determines
appropriate in its sole discretion. All decisions regarding alterations to,
or relocation or removal of, the Artwork are within the sole and absolute
discretion of the City.
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b.If any alteration is made to the Artwork 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 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 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.
c.The parties acknowledge and agree that because the Artwork is
being installed at the roundabout located at Eisenhower Drive and Calle
Sinaloa that is owned by the City, it will not be possible to preserve the
Artwork if the City determines that it no longer wishes to have the
Artwork on display at that Site Location. By way of example, the parties
recognize that is would not be feasible or practical to relocate the
Artwork after it is installed. For this reason, the parties agree that City
shall have the right at any time and for any reason, to remove, destroy,
or otherwise dispose of the Artwork, and Artist shall have no right to
notice of such actions. City shall have no obligation to preserve the
Artwork if it determines it no longer wishes to display the Artwork. In
addition, should City transfer property containing the Site Location to a
third party, all obligations of City under this Agreement shall terminate.
9.5 Permanent Record. The City shall maintain a record of this Agreement
and of the location and disposition of the Artwork.
ARTICLE X. ASSIGNMENT OR TRANSFER
10.1 Artist shall not 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 Artist
to assign, transfer, or subcontract any rights, duties, or obligations arising
hereunder without City’s prior written consent shall be null, void and of no
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effect.
ARTICLE XI. TERMINATION
11.1 City may, at its option, by written notice to Artist, terminate this
Agreement either 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”). Upon Termination, except as provided in this Agreement, all
parties shall be released from all further obligations and liability hereunder.
Effective upon Termination, the Artwork, or so much thereof as has then been
completed, shall be transferred to and shall belong to City. In such event and
upon Artist’s written request, City shall remove Artist’s name from the
Artwork.
ARTICLE XII. INSURANCE AND INDEMNIFICATION.
12.1 Insurance. Prior to the commencing any work under this Agreement
and throughout the duration of the term of this Agreement, Artist shall procure
and maintain, at Artist’s sole cost and expense, and submit to City
concurrently with its execution of this Agreement, policies of insurance as set
forth in Exhibit E (the “Insurance Requirements”) which is incorporated
herein by this reference and expressly made a part hereof.
12.2 Indemnification. To the fullest extent permitted by law, Contractor shall
indemnify, protect, defend and hold harmless City and any and all of its
officers, employees, agents, and volunteers as set forth in Exhibit F
(“Indemnification”) which is incorporated herein by this reference and
expressly made a part hereof.
ARTICLE XII. GENERAL PROVISIONS
12.1 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: ARTIST:
City of La Quinta [Name]
Attn: Deputy City Manager [Address]
78495 Calle Tampico [Address]
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La Quinta, CA 92253
12.2 Nondiscrimination. In the performance of the services under this
Agreement, neither Artist nor City shall discriminate as to race, color, creed,
religion, sex, marital status, national origin, ancestry, age, physical or mental
handicap, medical condition, or sexual orientation. Artist shall comply with
the equality of employment opportunity provisions of State and local laws and
regulations as presently existing or hereafter amended.
12.3 Entire Agreement. This Agreement and all exhibits attached hereto and
incorporated herein by 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.
12.4 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.
12.5 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.
12.6 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, or in the
Federal District Court in the district of California which includes Riverside
County.
12.7 Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of City and Artist, and their respective heirs, personal
representatives, successors, and permitted assigns.
12.8 Severance. If any provision(s) of this Agreement is decalred to be
invalid, void, or illegal, such provision(s) shall be severed from this 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.
Last Revised April 2015 Page 12 of 25
12.9 Substitution. Whenever in the specifications of materials or process the
Scope of Design Build 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.
12.10 Authority. The persons executing this Agreement on behalf of each of
the parties hereto represent and warrant that (i) such party is duly organized
and existing or is a natural person, (ii) they are duly authorized to execute
and deliver this Agreement on behalf of said party, (iii) by so executing this
Agreement, such party is formally bound to the provisions of this Agreement,
and (iv) that entering into this Agreement does not violate any provision of
any other Agreement to which said party is bound. This Agreement shall be
binding upon the heirs, executors, administrators, successors, and permitted
assigns of the parties.
12.11 Force Majeure. In addition to specific provisions of this 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 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.
12.12 No Third Party Beneficiaries. With the exception of the specific
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provisions set forth in this Agreement, there are no intended third-party
beneficiaries under this Agreement and no such other third parties shall have
any rights or obligations hereunder.
12.13 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, and such counterparts shall
constitute one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
Last Revised April 2015 Page 14 of 25
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
CITY OF LA QUINTA, a California Municipal Corporation
By:
JON MCMILLEN, City Manager
City of La Quinta, California
ATTEST:
MONIKA RADEVA, City Clerk
City of La Quinta, California
APPROVED AS TO FORM:
WILLIAM H. IHRKE, City Attorney
City of La Quinta, California
ARTIST:
[Name]
By:
Title:
State License No.
Last Revised April 2015 Page 15 of 25
EXHIBIT A
SCOPE OF DESIGN BUILD SERVICES
I.SCOPE OF WORK
II.GENERAL ITEMS OF INCLUSION:
III.SPECIFIC ITEMS OF INCLUSION
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EXHIBIT B
SCHEDULE OF PERFORMANCE
SCHEDULING:
REVIEWS:
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EXHIBIT C
SCHEDULE OF COMPENSATION
SCHEDULE OF PAYMENT TO ARTIST BY CITY:
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EXHIBIT D
NOTICE OF COMPLETION FOR ARTWORK
Piece of Artwork: [Name of Artwork, if any]
WHEREAS, by that certain Art Purchase Agreement dated
_______________________, ____ (“Agreement”), THE CITY OF LA QUINTA,
a California municipal corporation (“City”) contracted with [Name] (“Artist”)
to provide certain “Artwork” (as defined in the Agreement); and,
WHEREAS, as referenced in the Agreement, 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 City hereto certifies as follows:
1.As provided in the Agreement, City does 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__________, ____.
CITY OF LA QUINTA, a California Municipal Corporation
By: Chris Escobedo, Director – Community Resources
Last Revised April 2015 Page 19 of 25
EXHIBIT E INSURANCE REQUIREMENTS E.1 Insurance. Prior to the beginning of and throughout the duration of this Agreement, the following policies shall be maintained and kept in full force and effect providing insurance with minimum limits as indicated below and issued by insurers with A.M. Best ratings of no less than A-:VI: Commercial General Liability (at least as broad as ISO CG 0001) $1,000,000 (per occurrence) $2,000,000 (general aggregate). Must include the following endorsements:
General Liability Additional Insured
General Liability Primary and Non-contributory
Commercial Auto Liability (at least as broad as ISO CA 0001) $1,000,000 (per accident) Errors and Omissions Liability $1,000,000 (per claim and aggregate) Workers’ Compensation (per statutory requirements) Artist shall procure and maintain, at its cost, and submit concurrently with its execution of this Agreement, Commercial General Liability insurance against all claims for injuries against persons or damages to property resulting from Artist's acts or omissions rising out of or related to Artist's performance under this Agreement. The insurance policy shall contain a severability of interest clause providing that the coverage shall be primary for losses arising out of Artist's performance hereunder and neither City nor its insurers shall be required to contribute to any such loss. A certificate evidencing the foregoing and naming City and its officers and employees as additional insured (on the Commercial General Liability policy only) shall be delivered to and approved by City prior to commencement of the services hereunder. Artist shall carry automobile liability insurance of $1,000,000 per accident against all claims for injuries against persons or damages to property arising out of the use of any automobile by Artist, its officers, any person directly or indirectly employed by Artist, any subcontractor or agent, or anyone for whose acts any of them may be liable, arising directly or indirectly out of or related to Artist's performance under this Agreement. If Artist or Artist’s employees will use personal autos in any way on this project, Artist shall provide evidence of personal auto liability coverage for each such person. The term “automobile” includes, but is not limited to, a land motor vehicle, trailer or semi-trailer designed for travel on public roads. The automobile insurance policy shall contain a severability of interest clause providing that coverage shall be primary for losses arising out of Artist's performance hereunder and neither City nor its insurers shall be required to contribute to such loss. Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of Artist and “Covered Professional Services” as
Last Revised April 2015 Page 20 of 25
designated in the policy must specifically include work performed under this agreement. The policy limit shall be no less than $1,000,000 per claim and in the aggregate. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer’s duty to defend. The policy retroactive date shall be on or before the effective date of this agreement. Artist shall carry Workers' Compensation Insurance in accordance with State Worker's Compensation laws with employer’s liability limits no less than $1,000,000 per accident or disease. Artist shall provide written notice to City within ten (10) working days if: (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; or (3) the deductible or self-insured retention is increased. In the event any of said policies of insurance are cancelled, Artist shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Exhibit to the Contract Officer. The procuring of such insurance or the delivery of policies or certificates evidencing the same shall not be construed as a limitation of Artist’s obligation to indemnify City, its officers, employees, contractors, subcontractors, or agents. E.2 Remedies. In addition to any other remedies 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, City 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. c. Terminate this Agreement. Exercise of any of the above remedies, however, is an alternative to any other remedies City 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. E.3 General Conditions Pertaining to Provisions of Insurance Coverage by Artist. Artist and City agree to the following with respect to insurance provided by Artist: 1. Artist agrees to have its insurer endorse the third party general liability coverage required herein to include as additional insureds City, its officials, employees, and agents, using standard ISO endorsement No. CG 2010 with an edition prior to 1992. Artist also agrees to require all contractors, and subcontractors to do likewise. 2. No liability insurance coverage provided to comply with this Agreement shall prohibit Artist, or Artist’s employees, or agents, from waiving the right of subrogation prior to a loss. Artist agrees to waive subrogation rights against City regardless of the applicability of any insurance proceeds, and to require all contractors and subcontractors to do
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likewise.
3.All insurance coverage and limits provided by Artist andavailable or applicable to this Agreement are intended to apply to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to City or its operations limits the application of such insurance coverage.
4.None of the coverages required herein will be incompliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing.
5.No liability policy shall contain any provision or definitionthat would serve to eliminate so-called “third party action over” claims, including any exclusion for bodily injury to an employee of the insured or of any contractor or subcontractor.
6.All coverage types and limits required are subject toapproval, modification and additional requirements by the City, as the need arises. Artist shall not make any reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period) that may affect City’s protection without City’s prior written consent.
7.Proof of compliance with these insurance requirements,consisting of certificates of insurance evidencing all of the coverages required and an additional insured endorsement to Artist’s general liability policy, shall be delivered to City at or prior to the execution of this Agreement. In the event such proof of any insurance is not delivered as required, or in the event such insurance is canceled at any time and no replacement coverage is provided, City has the right, but not the duty, to obtain any insurance it deems necessary to protect its interests under this or any other agreement and to pay the premium. Any premium so paid by City shall be charged to and promptly paid by Artist or deducted from sums due Artist, at City option.
8.It is acknowledged by the parties of this agreement that allinsurance coverage required to be provided by Artist or any subcontractor, is intended to apply first and on a primary, non-contributing basis in relation to any other insurance or self-insurance available to City.
9.Artist agrees to ensure that subcontractors, and any otherparty involved with the project that is brought onto or involved in the project by Artist, provide the same minimum insurance coverage required of Artist. Artist agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Artist agrees that upon request, all agreements with subcontractors and others engaged in the project will be submitted to City for review.
10.Artist agrees not to self-insure or to use any self-insuredretentions or deductibles on any portion of the insurance required herein (with the exception of professional liability coverage, if required) and further agrees that it will not allow any contractor, subcontractor, Architect, Engineer or other entity or person in any way involved in the performance of work on the project contemplated by this agreement to self-insure its obligations to City. If Artist’s existing coverage includes a deductible or self-
Last Revised April 2015 Page 22 of 25
insured retention, the deductible or self-insured retention must be declared to the City. At that time the City shall review options with the Artist, which may include reduction or elimination of the deductible or self-insured retention, substitution of other coverage, or other solutions. 11. The City reserves the right at any time during the term of this Agreement to change the amounts and types of insurance required by giving the Artist ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Artist, the City will negotiate additional compensation proportional to the increased benefit to City. 12. For purposes of applying insurance coverage only, this Agreement will be deemed to have been executed immediately upon any party hereto taking any steps that can be deemed to be in furtherance of or towards performance of this Agreement. 13. Artist acknowledges and agrees that any actual or alleged failure on the part of City to inform Artist of non-compliance with any insurance requirement in no way imposes any additional obligations on City nor does it waive any rights hereunder in this or any other regard. 14. Artist will renew the required coverage annually as long as City, or its employees or agents face an exposure from operations of any type pursuant to this agreement. This obligation applies whether or not the agreement is canceled or terminated for any reason. Termination of this obligation is not effective until City executes a written statement to that effect. 15. Artist shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Artist’s insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City within five (5) days of the expiration of coverages. 16. The provisions of any workers’ compensation or similar act will not limit the obligations of Artist under this agreement. Artist expressly agrees not to use any statutory immunity defenses under such laws with respect to City, its employees, officials, and agents. 17. Requirements of specific coverage features or limits contained in this section are not intended as limitations on coverage, limits or other requirements nor as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party or insured to be limiting or all-inclusive. 18. These insurance requirements are intended to be separate and distinct from any other provision in this Agreement and are intended by the parties here to be interpreted as such. 19. The requirements in this Exhibit supersede all other sections and provisions of this Agreement to the extent that any other section or
Last Revised April 2015 Page 23 of 25
provision conflicts with or impairs the provisions of this Exhibit.
20.Artist agrees to be responsible for ensuring that nocontract used by any party involved in any way with the project reserves the right to charge City or Artist for the cost of additional insurance coverage required by this agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.
21. Artist agrees to provide immediate notice to City of anyclaim or loss against Artist arising out of the work performed under this agreement. City assumes 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.
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EXHIBIT F INDEMNIFICATION F.1 General Indemnification Provision. a. Indemnification for Professional Liability. When the law establishes a professional standard of care for Artist’s services, to the fullest extent permitted by law, Artist shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and all of its officials, employees, and agents (“Indemnified Parties”) from and against any and all claims, losses, liabilities of every kind, nature, and description, damages, injury (including, without limitation, injury to or death of an employee of Artist or of any subcontractor), costs and expenses of any kind, whether actual, alleged or threatened, including, without limitation, incidental and consequential damages, court costs, attorneys’ fees, litigation expenses, and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation, to the extent same are cause in whole or in part by any negligent or wrongful act, error or omission of Artist, its officers, agents, employees or subcontractors (or any entity or individual that Artist shall bear the legal liability thereof) in the performance of professional services under this agreement. With respect to the design of public improvements, the Artist shall not be liable for any injuries or property damage resulting from the reuse of the design at a location other than that specified in Exhibit A without the written consent of the Artist. b. Indemnification for Other Than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Artist shall indemnify, defend (with counsel selected by City), and hold harmless the Indemnified Parties from and against any liability (including liability for 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, court costs, attorneys’ fees, litigation expenses, and fees of expert consultants or expert witnesses) incurred in connection therewith and costs of investigation, where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Artist or by any individual or entity for which Artist is legally liable, including but not limited to officers, agents, employees, or subcontractors of Artist. F.2 Standard Indemnification Provisions. Artist agrees to obtain executed indemnity agreements with provisions identical to those set forth herein this section from each and every subcontractor 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 herein, Artist agrees to be fully responsible according to the terms of this Exhibit. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City 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. a. Limitation of Indemnity. Without affecting the rights of City under any provision of this agreement, Artist shall not be required to indemnify and hold harmless City for liability attributable to the active negligence of City, provided such active negligence is determined by agreement between the
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parties or by the findings of a court of competent jurisdiction. In instances where City is shown to have been actively negligent and where City’s active negligence accounts for only a percentage of the liability involved, the obligation of Artist will be for that entire portion or percentage of liability not attributable to the active negligence of City.
Page 9 of 12
ATTACHMENT 2
INSURANCE REQUIREMENTS ACKNOWLEDGEMENT
Must be executed by proposer and submitted with the proposal
I, ________________________________________ (name) hereby acknowledge and
confirm that __________________________________ (name of company) has reviewed
the City’s indemnification and minimum insurance requirements as listed in Exhibits E and
F of the City’s Agreement for Contract Services (Attachment 1); and declare that insurance
certificates and endorsements verifying compliance will be provided if an agreement is
awarded.
I am _________________________________ of ______________________________,
(Title) (Company)
Commercial General Liability (at least as broad as ISO CG 0001)
$1,000,000 (per occurrence); $2,000,000 (general aggregate)
Must include the following endorsements:
General Liability Additional Insured
General Liability Primary and Noncontributory
Commercial Auto Liability (at least as broad as ISO CA 0001)
$1,000,000 (per accident)
Personal Auto Declaration Page if applicable
Errors and Omissions Liability $1,000,000 (per claim and aggregate)
Worker’s Compensation (per statutory requirements)
Must include the following endorsements:
Worker’s Compensation Waiver of Subrogation
Worker’s Compensation Declaration of Sole Proprietor if applicable
Page 10 of 12
ATTACHMENT 3
NON-COLLUSION AFFIDAVIT FORM
Must be executed by proposer and submitted with the proposal
I, ________________________________________ (name) hereby declare as follows:
I am _________________________________ of ______________________________,
(Title) (Company)
the party making the foregoing proposal, that the proposal is not made in the interest of,
or on behalf of, any undisclosed person, partnership, company, association, organization,
or corporation; that the proposal is genuine and not collusive or sham; that the proposer
has not directly or indirectly induced or solicited any other proposer to put in a false or
sham proposal, and has not directly or indirectly colluded, conspired, connived, or agreed
with any proposer or anyone else to put in a sham proposal, or that anyone shall refrain
from proposing; that the proposer has not in any manner, directly or indirectly, sought by
agreement, communication, or conference with anyone to fix the proposal price of the
proposer or any other proposer, or to fix any overhead, profit, or cost element of the
proposal price, or of that of any other proposer, or to secure any advantage against the
public body awarding the agreement of anyone interested in the proposed agreement;
that all statements contained in the proposal are true; and, further, that the proposer has
not, directly or indirectly, submitted his or her proposal price or any breakdown thereof,
or the contents thereof, or divulged information or data relative hereto, or paid, and will
not pay, any fee to any corporation, partnership, company, association, organization,
proposal depository, or to any member or agent thereof to effectuate a collusive or sham
proposal.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Proposer Signature: __________________________________________________
Proposer Name: __________________________________________________
Proposer Title: __________________________________________________
Company Name: __________________________________________________
Address: __________________________________________________
Page 11 of 12
ATTACHMENT 4
ACKNOWLEDGEMENT OF RECEIPT OF ADDENDA
Must be executed by proposer and submitted with the proposal;
If no addenda has been issued, mark “N/A” under Addendum No. indicating
Not Applicable and sign
ADDENDUM NO. SIGNATURE INDICATING RECEIPT
Page 12 of 12
Attachment 5
REVIEW CRITERIA
Proposals will be reviewed based on the following guidelines:
• Meets the definition of Artist, as defined in the Public Art Guidelines “Artist,
an individual or collective generally recognized by critics and peers as a
professional practitioner of the visual, performing or language arts, based
on a body of work, educational background, experience, exhibition history,
publication and/or creation of artwork.”
• Demonstrates artistic excellence, innovation, and originality as represented
in past work and supporting materials.
• Demonstrates capacity for working in media and with concepts that are
appropriate to the project goals and site.
• Demonstrates interest and capability in creating public artworks in
collaboration with the City, MCAD, the design team (if applicable) and other
project partners.
• Demonstrates interest and capability in engaging community
representatives in a project.
• Demonstrates the ability to communicate effectively and elicit the ideas of
team members; flexibility and problem-solving skills; and ability to work
with architectural drawings and construction documents.
• Demonstrates experience in successfully completing works of similar scope,
scale, budget, and complexity, or articulates how he or she would be able
to bring the necessary artistic and technical skills to this project.
• Is available to perform the scope of the work in a timely and professional
manner.
• Builds the diversity of the City’s public art collection