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Madison-PTM Dev/Point Happy Art 01ART PURCHASE AGREEMENT THIS ART PURCHASE AGREEMENT (the "Agreement") is entered into this 5' day of June, 2001, by and among THE CITY OF LA QUINTA, a California municipal corporation (the "City"), MADISON/PTM DEVELOPMENT, LLC (Developer), and FELICIA, an individual (Artist) . RECITALS A. The Developer is currently constructing a retail center on the northwest corner of Washington Street and Highway 111. To meet the requirements for artwork pursuant to Chapter 2.65 of the City Municipal Code, the Developer is commissioning from ARTIST the fabrication and installation of certain ARTWORK (the "Artwork") to be installed and displayed by the Developer at the location identified in the site map attached hereto and incorporated herein as Exhibit E. NOW, THEREFORE, the parties hereto, for the consideration and under the conditions hereinafter set forth, hereby mutually agree as follows: ARTICLE I. SCOPE OF SERVICES 1.1 Scope of Design Services. Artist shall prepare or cause to be prepared, any required approvals for all shop drawings, details, and samples, and shall do all other things necessary and incidental to the performance of the Artist's obligations pursuant to this Agreement. 1.2 Scope of Fabrication Services. Artist shall fabricate, transport and install the Artwork pursuant to and by the times set forth in the Scope of Design Build Services and the Schedule of Performance attached hereto as Exhibit A and Exhibit B. respectively, and incorporated herein by this reference. The City shall have the right to review the Artwork at reasonable times during the fabrication thereof. Artist shall submit to the City monthly progress narratives, including photographs, as required by the Schedule of Performance (Exhibit B). The narratives shall include the percentage of the Artwork completed to date, along with an estimated completion date. Artist shall furnish all tools, equipment, apparatus, facilities, plant, labor, services, materials, and all utilities and transportation, including power, fuel, and water, and to perform all work necessary to construct, transport and install in a good and workmanlike manner the scope of work set forth in the Scope of Design Build Services (Exhibit A), or reasonably inferable therein, together with the appurtenances thereto, at the Site Location. It is understood and agreed that all said plant, labor, services, materials, equipment, and facilities shall be furnished and said work performed and completed by Artist as an independent contractor, subject to the inspection and approval of the City or its representatives. S:\Community Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 1 of 21 The Artist shall present to the City in writing for further review and approval any and all significant changes in the scope, design, color, size, material or texture, of the Artwork not permitted by or not in substantial conformity with the approved working drawings and the Scope of Design Build Services (Exhibit A). A significant change is any change in the scope, design, color, size, material, texture, or Site Location which affects installation, scheduling, site preparation, or maintenance for the Artwork or the schematic concept of the Artwork as represented in the schematic drawings, the approved working drawings, and the Scope of Design Build Services (Exhibit A). Developer and Artist, as applicable, shall at all times maintain proper facilities and provide safe access for inspection of the Artwork by the City, its engineer or representatives, and to the sites wherein the Artwork is located prior to installation. Where specifications require work to be specially tested or approved, it shall not be tested without timely notice to the City, of its readiness for inspection and without the approval thereof, or consent thereto by the City. The Developer shall promptly notify the respective departments or official bodies when the artist's work is ready for inspection and the artist agrees, at once, do all work required to remove any violations or to comply with such inspections, without additional charge to the City. The Developer and/or Artist, as applicable, shall perform all work necessary to obtain approvals from the authorities mentioned above without additional cost to the City. 1.3 Change Orders. In addition to the change orders and extra work specified and provided for in the Scope of Design Build Services (Exhibit A), the City may at any time during the progress of the completion and installation of the Artwork and up to the date of the issuance of a Notice of Completion as hereinafter defined, when in the City's reasonable determination the public interest and necessity so require, request any alterations, deviations, additions to or omissions from this Agreement, Scope of Design Build Services (Exhibit A), or the work, labor and materials to be furnished thereunder, and the same shall in no way affect or make void this Agreement. Artist shall adhere strictly to the Scope of Design Build Services (Exhibit A), unless a change therefrom is authorized in writing. In such case, the terms of said change shall be understood and agreed upon in writing by the City, Developer and Artist before commencement of said revised work. 1.4 Post -Fabrication Services. a. The Developer shall notify the City in writing when fabrication of the Artwork is completed and ready for delivery and installation at the Site Location which is designated in Exhibit E, attached hereto and incorporated herein by reference. b. Upon completion and at all times during fabrication and installation, the Artwork shall comply with all applicable statutes, ordinances and regulations of any governmental agency having jurisdiction over the Artwork. S:Tommunity Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 2 of 21 1.5 Post -Installation. a. The Artist shall be available at such reasonable time or times as may be agreed between the City, Developer and Artist to attend any and all inauguration, ground breaking, or presentation ceremonies upon completion of the Artwork. b. The Developer shall use reasonable efforts to arrange for publicity for the completed Artwork by local media and publications, and otherwise as may be determined between the City, Developer and Artist as soon as practicable following installation. C. Upon installation of the Artwork, the Artist shall provide the Developer and City with written instructions for appropriate maintenance and preservation of the Artwork. 1.6 Final Acceptance. a. The Artist shall advise the Developer and the City in writing that the Artwork will become the responsibility of the City on the effective date of completion of the project and the acceptance as complete by the Developer and the City. Following receipt of such notice the City shall cause the installed Artwork to be inspected by suitably qualified and appropriate professional(s), and within five (5) days following completion of such inspection(s), the City shall either provide Developer with reasonably specific written objections to the installed Artwork or notify the Developer of its acceptance of the Artwork by a Notice of Completion in the form attached hereto as Exhibit D. Such Notice of Completion (Exhibit D) shall be evidence of the satisfactory completion and installation of the Artwork in conformity with this Agreement, subject to the indemnification, representations, and further performance obligations set forth in this Agreement. b. Final Acceptance by the City of the ownership of the Artwork will occur at the filing of the Notice of Completion. At that time, the ownership and responsibility for the Artwork will rest with the City of La Quinta. 1.7 Risk of Loss. Upon receipt of the Notice of Completion, the risk of loss or damage to the Artwork shall be borne by the City. The Artist shall take such measures as are necessary to protect the Artwork from loss or damage, through insurance or other adequate security, and to maintain the Artwork until the Notice of Completion is made by the City. 1.8 Title. Title to the Artwork and any construction drawings, plans, or other work product generated pursuant to this Agreement shall remain with the Artist during fabrication and installation, and shall pass and vest with the City upon issuance of Final Acceptance or Termination pursuant to Article IX hereof. 1.9 Payment: The Developer shall be paid the compensation set forth in Exhibit C. The total compensation to be paid to the Developer shall not exceed $94,950 (ninety four thousand, nine hundred fifty dollars). S:\Community Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 3 of 21 ARTICLE II. TIME OF PERFORMANCE 2.1 Time. Developer and Artist agree to punctually and diligently perform all their obligations under this Agreement. It is further understood and agreed that should the Artist fail to furnish the labor, materials, equipment, and or services, to perform all work and labor as herein provided in the manner herein set forth in good and workmanlike manner, Artist shall, in addition to any other penalties provided in the Agreement, be liable to the City for all losses or damages that either may suffer on account thereof. In the event Artist at the time refuses or neglects to supply a sufficient number of properly skilled workers or a sufficient quantity of materials of proper quality, or in effect be adjudicated bankrupt, or files a voluntary petition in bankruptcy, or commits any act of insolvency, or makes an assignment, for benefit or creditors, without the City's and Developer's prior written consent, or fails to make prompt payment to his materialmen and laborers, or fails in any respect to properly and diligently prosecute the work covered by this Agreement, or otherwise fails to perform fully any and all of the Covenants and obligations herein contained; then the City and Developer may, at either of their option, (1) after giving twenty-four (24) hours written notice to Artist and City or Developer, as applicable, provide any such labor and materials as may be necessary ; or (2) terminate the Artist's right to proceed with the work and, in the event, the City and/or Developer, at either of their option, shall have the right to enter upon the Artist's warehouse and take possession, for the purpose of completing the work included under this Agreement, of the Artwork or any portion thereof, and all materials, tools, and appliances thereon, and may employ any other person or persons to finish the work and provide the materials therefor. In the event City provides labor and/or materials, as set forth in (1) above, or finishes the work, as set forth in (2) above, City may deduct the cost of such labor and materials and all costs incurred in finishing the work, if applicable, from any money then due or thereafter to become due to Developer under this Agreement until the work undertaken by the City is completely finished. At that time, if the unpaid balance of the amount to be paid to the Developer under this Agreement exceeds the expenses incurred by the City in providing labor and materials and/or in finishing Artist's work, such excess shall be paid by the City to Developer, but if such expense shall exceed such unpaid balance, then Developer shall promptly pay to City the amount by which such expense shall exceed such unpaid balance. The expense incurred by the City as herein provided, either for furnishing materials, or for finishing the work, and any damages incurred by the City by reason of Artist's default, shall be chargeable to, and paid by Developer, aforesaid, to secure the payment thereof. If the City and/or Developer elects not to terminate Artist's right to proceed, Developer agrees to reimburse the City for losses or damages resulting for the delay in speedy progress of work. If Artist should neglect to prosecute the work properly or fail to perform any provisions of this Agreement, the City and/or Developer, after ten (10) days written notice to Artist, may without prejudice to any other remedy it may have make good such deficiencies. In the event the City makes good such deficiencies, it may deduct the cost thereof from the payment then or thereafter due Developer. S:\Community Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 4 of 21 In addition to specific provisions of Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lock -outs, riots, floods, earthquakes, fires, casualties, supernatural causes, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions or priority, litigation, unusually severe weather, inability to secure necessary labor, materials or tools, delays of any contractor, subcontractor or supplies, acts of the other party, acts or failure to act of any public or governmental agency or entity, including, without limitation, unreasonable delays in the processing and issuance of required permits for the installation of the Artwork by Developer (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 Developer 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 Developer. ARTICLE III. WARRANTIES 3.1 Title. The Artist represents and warrants that: (a) the Artwork is solely the result of the artistic effort of the Artist; (b) except as otherwise disclosed in writing to both the City and Developer, the Artwork is unique and original and does not infringe upon any copyright; (c) the Artwork, or a duplicate thereof, has not been accepted for sale elsewhere; and (d) the Artwork is free and clear of any and all encumbrances and/or monetary liens. 3.2 Quality and Condition. The Artist represents and warrants, except as otherwise disclosed to both the City and Developer 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 the Artist to both the City and Developer hereunder. The warranties described in this Section 3.2 shall survive for a period of one (1) year after the Acceptance of the Artwork, except the representation and warranty concerning latent defects shall survive for a period of three (3) years from after Acceptance of the Artwork. The City and/or Developer shall give notice to the Artist of any observed and claimed breach with reasonable promptness. The Artist shall, at the request of the City or Developer, and at no cost to the City or Developer, cure reasonably and promptly the breach of any such warranty which is curable by the Artist and which cure is consistent with professional conservation standards S:\Community Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 5 of 21 (including, for example, cure by means of repair or refabrication of the Artwork). ARTICLE IV. PERFORMANCE BONDS The Artist shall not be required by the City to post any performance bonds or similar undertakings, and any requirement of any other authority for performance bonds shall be the responsibility of the City. Nevertheless, Artist shall prevent any lien from attaching to the Artwork by any person claiming under Artist. ARTICLE V. REPRODUCTION RIGHTS 5.1 General. The Artist shall retain all rights under the Copyright Act of 1976, 17 U.S.C. Sections 101 et seg., and all other rights in and to the Artwork except ownership and possession, except as such rights are limited by this Agreement. In view of the intention that the Artwork in its final dimension shall be unique, the Artist shall riot make any additional exact duplicate, dimensional reproductions of the final artwork, nor shall the Artist grant permission to others to do so except with the written permission of both the City and Developer, provided, however, that at such time as Final Acceptance by the City, the City alone may grant such approval. The Artist grants to the City, Developer and its assigns an irrevocable license to make two-dimensional reproductions of the Artwork for noncommercial purposes, including but not limited to reproductions used in advertising, brochures, media publicity, and catalogues or other similar publications, provided that these rights are exercised in a tasteful and professional manner. 5.2 Notice. All reproductions by the City and Developer shall contain a credit to the Artist and denote its location, provided that the Artwork is protected by United States copyright law and reasonable substantiation thereof is provided to the City. 5.3 Registration. The Artist may at its expense cause to be registered, with the United States Register of Copyrights, a copyright in the Artwork in the Artist's name. ARTICLE VI. ARTIST'S RIGHTS 6.1 Identification. The City shall, at its expense, prepare and install at the site location, a plaque identifying the Artist, the title of the Artwork and the year of completion, and shall reasonably maintain such notice in good repair against the ravages of time, vandalism and the elements. 6.2 Maintenance. The parties recognize that maintenance of the Artwork on a regular basis is essential to the integrity of the Artwork. 6.3 Repairs and Restoration. a. The City shall have the right to determine, after consultation with a professional art conservator, when and if repairs and restoration to the Artwork will be made. To the extent practical, the Artist, during the Artist's lifetime, may be given the opportunity to make or personally supervise significant repairs and restorations and shall be paid a reasonable fee for S:\Community Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 6 of 21 any such services, provided that the City, Developer and the Artist mutually agree in writing, prior to the commencement of any significant repairs or restorations, upon the Artist's fee for such services. No fees shall be paid to Artist for repair or restoration due to a breach of the representations and warranties set forth herein. b. All repairs and restorations shall be made in accordance with recognized principles of conservation. 6.4 Maintenance and Alteration of the Artwork. a. The City shall maintain the Artwork in a manner that the City determines appropriate in its sole discretion. b. The City shall use its reasonable efforts to meet and consult with Artist prior to the time of making any alteration. If any alteration is made without the consent of Artist, Artist shall have the right to direct the City to remove Artist's name from the Artwork. In connection herewith, Artist hereby acknowledges and agrees that Artist is familiar with the California Art Preservation Act, as set forth in Section 987 of the California Civil Code and the Visual Artists Rights Act of 1990, as set forth in 17 United States Code Annotated, Section 106A, and the rights and protection afforded Artist thereunder, and Artist hereby waives each and all of Artist's rights and protection under Section 987 of the California Civil Code and under 17 United States Code Annotated, Section 106A, to the extent such rights and protection are inconsistent with this Section 6.4; provided, however, that to the extent that the rights and protection afforded Artist under Section 987 of the California Civil Code are not inconsistent with this Section 6.4 or pertain to matters that are not dealt with in this Section 6.4, Artist shall retain such rights and protection. 6.5 Permanent Record. The City shall maintain a record of this Agreement and of the location and disposition of the Artwork. 6.6 Artist's and Developer's Address. The Artist and Developer shall notify the City of changes in their address. The City shall take reasonable effort(s) to locate the Artist when matters arise relating to the Artist's rights under this Agreement. 6.7 Surviving Covenants. The covenants and obligations set forth in this Article VI shall be binding upon the parties, their heirs, legatees, executors, administrators, assigns, transferees and all their successors in interest, and the City's covenants do attach and run with the Artwork and shall be binding to and until twenty (20) years after the death of the Artist unless otherwise stated herein. Upon the death of the Artist, the representative of Artist's estate shall assume the surviving covenants and obligations of Artist set forth in this Article VI. ARTICLE VII. ARTIST AS INDEPENDENT CONTRACTOR The Artist shall perform all work under this Agreement as an independent contractor and not as an agent, joint venturer, partner or an employee of the City or the Developer. The Artist shall not: S:\Community Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 7 of 21 a. be supervised by any employee or official of the City or Developer; b. exercise supervision over any employee or official of the City or the Developer; C. have authority to contract for or bind the City or Developer in any manner; or represent itself as an agent of the City or Developer; or otherwise be authorized to act for or on behalf of the City or Developer; d. have status as the City's or Developer's employee or have any right to any benefits that the City or Developer grants to its employees. ARTICLE VIII. ASSIGNMENT OR TRANSFER No party shall assign or transfer an interest in this Agreement without the prior written consent of the other parties, provided, however, that claims for money due or to become due from the City or Developer under this Agreement may be assigned to a financial institution without approval. ARTICLE IX. TERMINATION The City and/or Developer may, at either of their option, by written notice to the Artist, terminate this Agreement either (a) upon the failure by Artist to perform any of its obligations hereunder in accordance with the terms hereof or any other breach by Artist of the terms of this Agreement, and such failure or breach continues uncured for fifteen (15) days following notice thereof from the City or Developer, as applicable, to Artist ("Termination for Default"), or (b) at any other time in the sole and absolute discretion of the City and Developer ("Discretionary Termination"). Termination for Default and Discretionary Termination are sometimes hereinafter collectively referred to as "Termination". Upon Termination, except as provided in this Article IX, all parties shall be released from all further obligations and liability hereunder. Effective upon a Termination, the Artwork, or so much thereof or has then been completed, shall be transferred to and shall belong to the Developer. In such event and upon Artist's written request, the Developer shall remove Artist's name from the Artwork. Upon a Termination for Default or upon a Discretionary Termination instituted by Developer, and subject to Article 2.1, Developer shall reimburse City for all compensation paid in accordance with the Schedule of Compensation (Exhibit C), and City shall be relieved of any further liability to make payments hereunder; upon a Discretionary Termination by City, Developer shall be entitled to that portion of the costs and expenses of Design Fabrication and Installation of Artwork provided for in Exhibit C hereto that is then payable pursuant to the Schedule of Compensation (Exhibit C), plus all costs reasonably incurred by Artist following last payment pursuant to the Schedule of Compensation prior to the date of the Discretionary Termination, provided that Artist shall be required to provided the City with reasonable substantiation for such costs. S:\Community Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 8 of 21 Notwithstanding anything else herein contained, Artist shall not be relieved of liability to the Developer and/or City for damages sustained by the Developer and/or City, as applicable, by virtue of any breach of this Agreement by the Artist, and the City may reasonably withhold payments to the Developer until such time as the exact amount of such damages is determined. In the event of a Termination, Developer is not released of the responsibility for providing the completion of the Artwork for the Site Location or shall provide a replacement work of art approved by the City. Notwithstanding anything herein to the contrary, in the event Developer has this Artwork completed, City shall compensate Developer for any amounts remaining under the Schedule of Compensation. In the event Developer elects to provide a replacement, City agrees to reasonably cooperate with Developer to negotiate and execute a replacement contract providing for the City's purchase of the replacement artwork. ARTICLE X. CONTRACTOR ADMINISTRATOR The Contract Administrator for this Agreement shall be the City Community Services Director. Wherever this Agreement requires any notice to be given to or by the City, or any determination or action to be made by the City, the City Community Services Director shall represent and act for the City. ARTICLE XI. NON-DISCRIMINATION In carrying out the performance of the services designated herein, none of the Developer, Artist and the City shall discriminate as to race, color, creed, religion, marital status, national origin or ancestry, and the Artist shall comply with the equality of employment opportunity provisions of State and local laws and regulations as presently existing or hereafter amended. ARTICLE XII. ENTIRE AGREEMENT This Agreement, and all of the exhibits attached hereto, embodies the entire Agreement and understanding between the parties hereto, and there are no other agreements or understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby, except as set forth herein above. ARTICLE XIII. MODIFICATION No alteration, change or modification of the terms of the Agreement shall be valid unless made in writing and signed by each party hereto and approved by appropriate action of the City. ARTICLE XIV. WAIVER No waiver of performance by any party hereto shall be construed as or operate as a waiver of any subsequent default of any terms, covenants and conditions of this Agreement. The S:\Community Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 9 of 21 payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. ARTICLE XV. GOVERNING LAW 15.1 This Agreement, regardless of where executed or performed, shall be governed by and construed in accordance with the laws of the State of California. 15.2 In addition to any other rights or remedies and subject to the restrictions otherwise set forth in this Agreement, any party hereto may institute legal action to seek specific performance of the terms of this Agreement, to recover damages, or to obtain any other remedy, at law or in equity, consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Riverside, in an appropriate Riverside County municipal court, or in the Federal District Court in the district of California which includes Riverside County. 15.3 If any party to this Agreement brings a legal action or proceeding against another party to enforce the provisions of this .Agreement, or on account of a claim or dispute arising out of this Agreement, then the prevailing party in such arbitration or legal action or proceeding shall be entitled to reimbursement by the other party of the legal fees and costs, including reasonable attorney fees and expert witness fees, incurred by the prevailing party in connection with the legal action or proceeding. ARTICLE XVI. HEIRS AND ASSIGNS This Agreement shall be binding upon and shall inure to the benefit of the City and Artist, and their respective heirs, personal representatives, successors and permitted assigns. ARTICLE XVII. NOTICES All notices, requests, demands and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: a. if to the City, to: City of La Quinta P.O. Box 1504 78-495 Calle Tampico La Quinta, CA 92253 Attention: Community Services Director 760-777-7032 b. if to the Developer, to: S:Tommunity Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 10 of 21 Madison Development, LLC 71361 San Gorgonio Road Rancho Mirage, CA 92270 760-771-1755 C. if to the Artist, to: Felicia 12448 East Amherst Circle Aurora CO 80014 303-696-6469 ARTICLE XVIII. INDEMNITY With respect to acts, errors or omissions in the performance of Artist's obligations hereunder, Developer and Artist agree to indemnify and hold harmless the City and its officers, agents, employees, and representatives from and against any and all claims, demands, defense costs, liability or consequential damage of any kind or nature arising out of Developer's and/or Artist's (including either of their subcontractors, agents, employees, assigns or licensees) negligent and/or willful acts, errors or omissions in the performance of Developer's and/or Artist's obligations under this Agreement. With respect to acts, errors or omissions in the performance of the City's obligations hereunder, the City agrees to indemnify and hold harmless Developer and Artist from and against any and all claims, demands, defense costs, liability or consequential damages of any kind or nature arising out of the City's (including its contractors') negligent and/or wilful acts, errors or omissions in the performance of the City's obligations under this Agreement. The foregoing indemnities shall be in effect without regard to the maintenance of insurance coverage for any such loss, costs, claims, damages or expenses. ARTICLE XIX. INSURANCE 19.1 Policies. Throughout fabrication of the Artwork the Artist shall maintain Comprehensive General Liability Insurance, or Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability (employee and contractual exclusions deleted), Products/Completed Operations Liability, Broad -Form Property Damage and Independent Contractors' ($1,000,000) per occurrence, combined single limit, written on an occurrence form, and such other forms and amounts of insurance as the City may deem necessary or desirable. All required insurance shall be evidenced by an insurance S:\Community Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 11 of 21 policy or policies (or the renewal or replacement thereof) reasonably acceptable to the City. Developer and/or Artist, as applicable, shall not proceed with any work nor receive payment under this Agreement until, among other things, the City has received the appropriate insurance certificates. Artist, prior to completion, shall maintain or cause to be maintained standard all- risk property insurance in an amount equal to or greater than the full replacement value of the Artwork. k The Artist's General Liability policy required by this Agreement shall contain the following clauses: "The City of La Quinta and its officers, agents, employees, representatives, and volunteers are added as additional insureds as respective operations and activities of, or on behalf of the named insured, performed under contract with the City of La Quinta. " Prior to commencing any work under this Agreement, Artist shall deliver to the City insurance certificates confirming the existence of the insurance required by this Agreement, and including the applicable clause referenced above. Also, within thirty (30) days of the execution date of this Agreement, Artist shall provide to the City an endorsement to the General Liability policy, which adds to this policy the applicable clause referenced above. Said endorsement shall be signed by an authorized representative of the insurance company and shall include the signator's company affiliation and title. Should it be deemed necessary by the City, it shall be the Artist's responsibility to see that the City receives documentation acceptable to the City which sustains that the individual signing said endorsement is indeed authorized to do so by the insurance company. Also, the City has the right to demand, and to receive within a reasonable time period, copies of any insurance policy required under this Agreement. In addition to any other remedies the City may have if Artist fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, the City may, at its sole option, terminate this Agreement. City's termination of the Agreement, however, is an alternative to other remedies the City may have, and is not the exclusive remedy for Artist's failure to maintain insurance or secure appropriate endorsements. Nothing herein contained shall be construed as limiting in any way the extent to which Artist may be held responsible for payments of damages to persons or property resulting from Artist's, or Artist's respective agents' contractors' or subcontractors', performance of the work covered under this Agreement. ARTICLE XX. GENERAL 20.1 Any provisions of this Agreement which shall prove to be invalid, void, or illegal shall in no way affect, impair or invalidate any other provision hereof, and such remaining S:\Community Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 12 of 21 provisions shall remain in full force and effect. 20.2 Whenever in the specifications any materials or process is indicated or specified by patent or proprietary name or by name of manufacturer, such specification shall be deemed to be used for the purpose of facilitating description of the material and/or process desired, and shall be deemed to be followed by the words "OR EQUAL", and Artist may offer any material or process which shall be equal in every respect to that so indicated or specified. 20.3 Artist shall not offer any substitute in said proposal or if a substitute so offered by Artist is not found to be equal to that so indicated or specified by name, if one only be so specified or named, or, if more than one be so specified or named, then such one as shall be specified in the proposal, or if none be so specified, then such one as shall be required by the City. 20.4 Unless a different date is provided in this Agreement, the Effective Date shall be the latest Date of Execution, hereinafter set forth below the names of the signature hereto. Should the Developer or Artist fail to enter a Date of Execution, the Effective Date shall be the Date of Execution by the City. 20.5 The City shall give any subsequent owner of the Artwork written notice of the covenants contained herein, and shall cause each such successive owner to be bound thereby. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. CITY: CITY OF LA QUINTA, a California municipal corporation By: THOMAS P. GENOVESE, City Manager City of La Quinta, California ATTEST: J REEK, City Clerk City of La Quinta, California S:Tommunity Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 13 of 21 APPRO D AS TO FORM: M. KAMERNE JENSO , City Atto _ City of La Quinta, California P, Pr7NMiADASON/PTM—DEVEL-*OPMENT, LLC S:\Community Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 14 of 21 EXHIBIT A SCOPE OF DESIGN BUILD SERVICES I. SCOPE OF WORK 1. Artist shall furnish all labor, engineering, material, tools, equipment, etc., required to design the Artwork in accordance with the quality level and intent of the concept drawings as prepared by Artist and approved by the City, along with all governing agency requirements and code criteria. 2. Developer and/or Artist is responsible for submitting all required documents relating to the Artwork design to appropriate government agencies so that building plan check and all required permits may be obtained in a timely manner. 3. Developer and/or Artist shall immediately notify the City in writing of any cost impact or schedule impact whether increase or decrease, resulting from any modifications to the design. Any redesign fees or any other costs incurred by the City due to Developer and/or Artist's negligence or failure to keep the City informed of scope variances in a timely manner shall be charged equally to the Developer and Artist. 4. Artist shall complete the design in sufficient scale and detail as required by the City and governmental authorities for approval. The design documents shall bear the stamp of a professional Mechanical, Structural and/or Electrical Engineer(s) licensed in the State of California deemed necessary. 5. Artist's design and specifications shall be subject to approval by the City and its consultants. II. GENERAL ITEMS OF INCLUSION: As a further clarification to the plans and specifications, the work shall include but not necessarily be limited to the following: 1. Artist shall examine or cause to be examined all supporting and adjacent surfaces and record any defects to the City prior to installing any material. The installation of any material constitutes the Artist's complete acceptance of all substrates as compatible with the work under this agreement. 2. Any work not provided for in this Agreement must be authorized by the City and Developer prior to the installation of such work. 3. Artist is responsible for all repairs or replacement of any existing property or work which is damaged as a result of the performance of the work under this Agreement. S:\Community Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 15 of 21 4. Artist shall provide for all unloading, hoisting, scaffolding, and bracing for the Artwork. 5. Artist shall provide all drilling, coring, cutting, fastening, and welding required for the Artwork. 6. Artist shall provide all speciality lighting required to complete the artwork. 7. Developer shall supply all landscaping required to complete the Artwork. III. SPECIFIC ITEMS OF INCLUSION 1. The Artwork consists of: 70 foot meandering fountain containing six basins 4 inch high outer walls Water fountain of textured concrete Color to match exterior of surrounding buildings Water basins will vary in size from 6" to 12" deep A six foot bronze Native American sculpture will be located in the northern most basin, set upon a base 30 inches tall Multiple boulders to be found throughout the fountain basin River stone to line all fountain basins Lighting to be incorporated into the fountain, as well as all pump equipment to ensure water flow throughout the fountain basins And contains all details as presented in the Landscape Architects rendering of the art piece as provided as attached to this exhibit S:\Community Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 16 of 21 Landscape Plan J) -MF, ryp�rvr t .., r M .D.= r • '. 3WUY1031'rM iTr.RLnarwsr++3WUrV'=KrC%j (: ,kdd`dH iNIOd Y.L 17 C L) w S:\Community Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 17 of 21 EXHIBIT B SCHEDULE OF PERFORMANCE SCHEDULING: The project will take approximately six months to complete the fabrication of the Artwork. Work will commence during the month of November, 2001 and completed, installed and functioning by May, 2002. REVIEWS: There may be one review by the Cultural Arts Commission of the work in progress if the Commission deems it necessary . The project may be reviewed by the City Council as deemed appropriate. S:\Community Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 18 of 21 EXHIBIT C SCHEDULE OF COMPENSATION PRICE: Basic Contract: Total Not to Exceed SCHEDULE OF PAYMENTS: First payment due upon approval of Art Purchase Agreement (25%) Second payment due upon installation of fountain walls (25%) $949950 $949950 $239737.50 $239737.50 Third payment due upon completion of sculpture $23,737.50 (25 %) Final payment due upon filing Notice of Completion $23,737.50 (25 %) S:\Community Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 19 of 21 EXHIBIT D NOTICE OF COMPLETION FOR ARTWORK Piece of Artwork: Point Happy Art Feature WHEREAS, by that certain Art Purchase Agreement dated , 2001 ( "Agreement"), THE CITY OF LA QUINTA, a California municipal corporation (the "City") contracted with 1VIADISON/PTM DEVELOPMENT, LLC (Developer) and FELICIA (Artist) to provide certain "Artwork" (as defined in the Agreement); and, WHEREAS, as referenced in the Agreement, the City shall furnish Developer and Artist with a Notice of Completion upon completion of the fabrication and installation of the Artwork; and, WHEREAS, such certificate shall be conclusive determination of satisfactory completion of the fabrication and installation of the Artwork, as required by the Agreement, has been satisfactorily completed. NOW, THEREFORE, the parties hereto certify as follows: 1. As provided in the Agreement, the City does hereby certify that the fabrication and installation of the Artwork has been fully performed and completed. Any executory obligations pursuant to the Agreement, which are hereby incorporated herein by reference, shall remain enforceable according to their terms. 2. Nothing contained in this instrument shall modify in any other way any executory portions of the Agreement. IN WITNESS WHEREOF, the Agency has executed this certificate this day of 12002. CITY OF LA QUINTA, a California municipal corporation by: S:\Community Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 20 of 21 AGREEKENT NUI� y`a' T�19�✓ 1 A bronze fouAtain title " FAMILY six feet high and four feet diameter with four figures with a like- ness to represent the local Cahulle Indian women.. r• 2 Patina to be used will be Ferric Nitrate with some Cupric Nitrate over laved. Sample enclosed on a miniature bronze. The bronze sculpture includes internal plumbing that controls the water flow from various points.( Such as the clay pots and some areas under the rock formation) 4 Completion tiMe will be six months from time of deposit to sculptor is made. 5 A delivery of the bronze sculpture to the site when completed. 6 Total cost will be $52,400 a deposit of $26,200 when signing this agreement.balance due upon delivery of $26,200. r Thank you for all your considerations, &77- x2- y �1 Fe} r Tq� &� Pr is / sculptor. 01/ 12448 East Amherst Cirds. Aurora, CO 80014 (303) 696.6469 '.i c 4.r 04-1 P.O. Box 1504 78-495 CALLE 'T'AMPICO LA QUINTA, CALIFORNIA 92253 September 24, 2001 Madison Development , LLC 7361 San Gorgonio Road Rancho Mirage, CA 92270 Gentlemen: (760) 7 7 7 - 7 0 0 0 FAX (760) 777-7101 Please find enclosed a copy of the Art Purchase Agreement for the installation of artwork at the northwest corner of Washington Street and Highway 111, approved by the Council September 18, 2001. Three original signature pages are enclosed also. Once signed, please return all three signature pages to me in the stamped, self-addressed envelope. Once all signatures are obtained, you will be mailed a fully executed original Agreement for your records. Should you have any questions, please don't hesitate to call. Sincerely, JUNE S. GREEK, CMC, City Clerk City of La Quinta, California enclosures xc: Dodie Horvitz, Community Services Director P.O. Box 1504 78-495 CALLE TAMPICO LA QUINTA, CALIFORNIA 92253 January 3, 2002 (760) 7 7 7 - 7 0 0 0 FAX (760) 777-7101 Madison Development, LLC 71-361 San Gorgonio Road Rancho Mirage, CA 92270 Gentlemen: Please find enclosed a fully executed Art Purchase Agreement by and among the City of La Quinta, Madison/PTM Development, LLC., and Felicia for the Point Happy Art Feature. Should you have any questions, please don't hesitate to call. Sincerely, JUNE S. GREEK, CMC, City Clerk City of La Quinta, California enclosure xc: Felicia, 12448 E. Amherst Circle, Aurora, CO 80014 Dodie Horvitz, Director of Community Services �M, EXHIBIT D Piece of Artwork: Point Happy Art Feature 1) WHEREAS, by that certain Art Purchase Agreement dated 5 , 2001 ("Agreement"), THE CITY OF LA QUINTA, a California municipal corporation (the "City") contracted with MADISON DEVELOPMENT, LLC (Developer) and FELICIA (Artist) to provide certain "Artwork" (as defined in the Agreement); and, WHEREAS, as referenced in the Agreement, the City shall furnish Developer and Artist with a Notice of Completion upon completion of the fabrication and installation of the Artwork; and, WHEREAS, such certificate shall be conclusive determination of satisfactory completion of the fabrication and installation of the Artwork, as required by the Agreement, has been satisfactorily completed. NOW, THEREFORE, the parties hereto certify as follows: 1. As provided in the Agreement, the City does hereby certify that the fabrication and installation of the Artwork has been fully performed and completed. Any executory obligations pursuant to the Agreement, which are hereby incorporated herein by reference, shall remain enforceable according to their terms. 2. Nothing contained in this instrument shall modify in any other way any executory portions of the Agreement. ���,, I WITNESS WHEREOF, the Agency has executed this certificate this day of VUU'�" , 2002. CITY OF LA QUINTA, a California municipal corporation by: S:\Community Services\Art In Public Places Agreements\Art Purchase Agreement, Point Happy.wpd Page 18 of 18 R AMENDMENT NO. 1 TO ART PURCHASE AGREEMENT THIS AMENDMENT NO. 1 TO ART PURCHASE AGREEMENT (this "Amendment No. 1") is entered into this 3 day of February, 2004 by and among THE CITY OF LA QUINTA, a California municipal corporation (the "City"), MADISON/PTM DEVELOPMENT, LLC ("Developer"), and FELICIA ("Artist"), an individual. RECITALS WHEREAS, Developer owns a development within the City commonly referred to as the Point Happy Development ("Development Area"); WHEREAS, in order to comply with Chapter 2.65 of the City Municipal Code, Developer entered into that certain Art Purchase Agreement, dated June 5, 2001 ("Original Agreement"), whereby it commissioned Artist to fabricate and install certain artwork (the "Artwork") to be displayed in the Development Area; WHEREAS, pursuant to the Original Agreement, the City agreed to undertake maintenance, repair and restoration obligations with respect to the Artwork ("Maintenance Obligations"); WHEREAS, the Developer now desires to take on, and the City agrees to turn over, said Maintenance Obligations; WHEREAS, Artist has been made aware of the desires of the Developer and City with respect to the Maintenance Obligations and has no objection to this modification of the Original Agreement; and WHEREAS, the parties hereto now desire to execute this Amendment No. 1, effective immediately upon execution by all three parties, to formally recognize the modification of the Original Agreement with respect to the Maintenance Obligations. NOW, THEREFORE, in consideration of the above recitals and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: AMENDMENT 1. The Original Agreement is hereby amended to transfer any and all Maintenance Obligations from the City to the Developer. 2. Developer acknowledges that the Maintenance Obligations require it to maintain, repair and restore the Artwork to the standard prescribed in the Original Agreement, as may be amended herein. 3. To effectuate the above modifications of the Original Agreement, the following sections are hereby amended: A. Section 6.3 subparagraph "a" of the Original Agreement is hereby amended as follows: The City shall have the right to determine, after consultation with the Developer and a professional art conservator, when and if repairs and restoration to the Artwork will be made. To the extent practical, the Artist, during the Artist's lifetime, may be given the opportunity to make or personally supervise significant repairs and restorations and shall be paid a reasonable fee for any such services, provided that the Developer and the Artist mutually agree in writing prior to the commencement of any significant repairs or restorations upon the Artist's fee for such services. Developer shall pay Artist or any other contracted party all fees associated with repair and/or restoration of the Artwork. No fees shall be paid to Artist for repair or restoration due to a breach of the representations and warranties set forth herein. B. Section 6.4 subparagraph "a" of the Original Agreement is hereby amended as follows: The Developer shall maintain the Artwork in a manner that causes the Artwork to remain in good condition and to the reasonable satisfaction of the City. The maintenance shall be subject to any applicable standards set out in the City's Municipal Code. 4. The Original Agreement is further amended to add the following provision: The Developer shall procure and maintain, at its cost, and submit within thirty days of the execution of Amendment No. 1, commercial liability insurance against all claims for injuries against persons or damages to property resulting from Developer's acts or omissions related to Developer's performance under this Amendment No. 1. The insurance policy shall be primary for losses arising out of Developer's performance hereunder and neither the City nor its insurers shall be required to contribute to any such loss. A certificate evidencing the foregoing and naming the City and its officers and employees as additional insured shall be delivered to and approved by the City prior to commencement of the services hereunder. The amount of insurance required hereunder shall be as follows. The Coverage for personal injury/property damage shall be $100,000 per individual; $300,000 per occurrence. The Developer shall also 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 the Developer, its officers, any directly or indirectly employed by the Developer, any subcontractor, and agents or anyone for whose acts any of them may be liable, arising directly or indirectly out of or related to Developer's performance under this Amendment No. 1. 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 be primary for losses arising out of Developer's performance hereunder and neither the City nor its insurers shall be required to contribute to such loss. A certificate evidencing the foregoing and naming the City and its officers and employees as additional insured shall be delivered to and approved by the City prior to commencement of the services hereunder. Developer shall also carry Workers' Compensation Insurance in accordance with and to the extent required by State Workers' Compensation laws. All insurance required by the Section shall be kept in effect during the term of this Amendment No. 1 and shall not be cancelable without thirty (30) days written notice of proposed cancellation to City. The procuring of such insurance or the delivery of policies or certificates evidencing the same shall not be construed as a limitation of Developer's obligation to indemnify the City, its officers, employees, contractors, subcontractors or agents. 6. Developer hereby agrees to indemnify, defend and hold City and its officials, officers, employees, and representatives (collectively, the "Indemnitees") harmless from and against all claims, obligations, expenses, liabilities, and costs (including but not limited to attorneys' fees) (collectively, the "Claims") for property damage or bodily injury or death of any person or persons arising from Developer's performance of its Maintenance Obligations except to the extent any such claim is caused by the active negligence or willful misconduct of Indemnitees. 7. The person executing this Amendment No. 1 on behalf of each party warrants that he/she is duly authorized to execute and deliver this Amendment No. 1 on behalf of the respective party for which he/she signs, and that by so executing this Amendment No. 1, such party is bound by the provisions of this Amendment No. 1. 8. In the event any action brought between the parties hereto relating to this Amendment No. 1 or the breach thereof, the prevailing party in such action shall be entitled to recover from any other party reasonable expenses, attorneys' fees and costs in connection with such action or proceeding. 9. If any term, provision, covenant, or condition of this Amendment No. 1 is held to be invalid, void, or otherwise unenforceable to any extent by any court of competent jurisdiction, the remainder of this Amendment No. 1 shall not be affected thereby, and each term, provision, covenant, or condition of this Amendment No. 1 shall be valid and enforceable to the fullest extent permitted by law. 10. This Amendment No. 1 constitutes the entire agreement between the parties pertaining to the subject matter hereof, and all prior and contemporaneous agreements, representations, negotiations and understandings of the parties, whether oral or written, are hereby superseded and merged herein. 11. This Amendment No. 1 may be executed in two or more counterparts, each of which together shall constitute one and the same document. Unless otherwise defined herein, terms used herein shall have the meanings ascribed thereto in the Original Agreement. 12. The City reserves the right to terminate this Amendment No. 1 at any time, with or without cause, upon thirty (30) days written notice to Developer and Artist. In the event of termination, the Original Agreement shall remain in full force and effect as it existed prior to this modification. If the City exercises its right of termination pursuant to this paragraph, Developer agrees to return the Artwork, at its sole cost and expense. The Artwork shall be returned in at least as good of a condition as the Artwork is in as of the date of this Amendment No. 1. 13. Except as specifically expressed herein, all other terms, conditions and provisions of the Original Agreement shall remain unchanged and in full force and effect. 14. In the event that Developer wishes in the future to assign the Maintenance Obligations to a third party, such assignment shall be made through an assignment and assumption agreement ("Assignment and Assumption Agreement") subject to review and approval by the City. The City shall be a signatory to the Assignment and Assumption Agreement. An Assignment and Assumption Agreement shall only be considered for approval by the City if all of the following criteria are met: (1) the assignee agrees in the Assignment and Assumption Agreement to assume all responsibilities and obligation of Developer for as long at the Artwork is displayed in the Development Area; (2) the City determines, in its sole discretion, that the assignee has the necessary qualifications and financial resources to complete the Maintenance Obligations; and (3) the City Attorney approves the form of the Assignment and Assumption Agreement. IN WITNESS WHEREOF, the parties hereto have caused their duly authorized representatives to execute this Amendment No. 1 on the dates set forth below. "Developer " /7 "City" PMENT, LLC City of La Quinta, a California municipal —� Fco ratio r. Its: Its: _ Date: Date: APPROVED AS TO FORM: By: M. Kat er a ens , City Attorney ATTEST: une S. Greek, City erk "Artist"