Ware, William/Embassy Art Purchase 04ART PURCHASE AGREEMENT
THIS ART PURCHASE AGREEMENT (the "Agreement") is entered into this 20" day of
January 2004, by and among THE CITY OF LA QUINTA, a California municipal corporation
(the "City") and Bill Ware, an individual (Artist).
RECITALS
A. A Developer is currently constructing the Embassy Suites on the northeast
corner of Calle Tampico and Desert Club Drive. To meet the requirements for artwork
pursuant to Chapter 2.65 of the City Municipal Code, the City Council is commissioning the
fabrication and installation of certain ARTWORK (the "Artwork") to be installed and
displayed by the artist at the SITE LOCATION which is the terminus of the Calle Tampico
and Desert Club Drive (the "Site Location").
NOW, THEREFORE, the parties hereto, for the consideration and under the conditions
hereinafter set forth, hereby mutually agree as follows:
ARTICLE I. SCOPE OF SERVICES
1.1 Scope of Design Services. Artist shall prepare or cause to be prepared, any
required approvals for all shop drawings, details, and samples, and shall do all other things
necessary and incidental to the performance of the Artist's obligations pursuant to this Agreement.
1.2 Scope of Fabrication Services. Artist shall fabricate, transport and install the
Artwork pursuant to and by the times set forth in the Scope of Design Build Services and the
Schedule of Performance attached hereto as Exhibit A and Exhibit B, respectively, and
incorporated herein by this reference.
The City shall have the right to review the Artwork at reasonable times during the
fabrication thereof. Artist shall submit to the City monthly progress narratives, including
photographs, as required by the Schedule of Performance (Exhibit B). The narratives shall
include the percentage of the Artwork completed to date, along with an estimated completion date.
Artist shall furnish all tools, equipment, apparatus, facilities, plant, labor, services,
materials, and all utilities and transportation, including power, fuel, and water, and to perform all
work necessary to construct, transport and install in a good and workmanlike manner the scope of
work set forth in the Scope of Design Build Services (Exhibit A), or reasonably inferable therein,
together with the appurtenances thereto, at the Site Location. It is understood and agreed that all
said plant, labor, services, materials, equipment, and facilities shall be furnished and said work
performed and completed by Artist as an independent contractor, subject to the inspection and
approval of the City or its representatives.
S:\City Clerk\Agreements.Contracts\Art Purchase Agreement Embassy Suites..doc Page I of 19
The Artist shall present to the City in writing for further review and approval any
and all significant changes in the scope, design, color, size, material or texture, of the Artwork
not permitted by or not in substantial conformity with the approved working drawings and the
Scope of Design Build Services (Exhibit A). A significant change is any change in the scope,
design, color, size, material, texture, or Site Location which affects installation, scheduling, site
preparation, or maintenance for the Artwork or the schematic concept of the Artwork as
represented in the schematic drawings, the approved working drawings, and the Scope of Design
Build Services (Exhibit A).
Artist shall at all times maintain proper facilities and provide safe access for
inspection of the Artwork by the City, its engineer or representatives, and to the sites wherein the
Artwork is located prior to installation. Where specifications require work to be specially tested
or approved, it shall not be tested without timely notice to the City, of its readiness for inspection
and without the approval thereof, or consent thereto by the City. The Artist shall promptly notify
the respective departments or official bodies when the artist's work is ready for inspection and the
artist agrees, at once, do all work required to remove any violations or to comply with such
inspections, without additional charge to the City. The Artist shall perform all work necessary to
obtain approvals from the authorities mentioned above without additional cost to the City.
1.3 Change Orders.
In addition to the change orders and extra work specified and provided for in the
Scope of Design Build Services (Exhibit A), the City may at any time during the progress of the
completion and installation of the Artwork and up to the date of the issuance of a Notice of
Completion as hereinafter defined, when in the City's reasonable determination the public interest
and necessity so require, request any alterations, deviations, additions to or omissions from this
Agreement, Scope of Design Build Services (Exhibit A), or the work, labor and materials to be
furnished there under, and the same shall in no way affect or make void this Agreement.
Artist shall adhere strictly to the Scope of Design Build Services (Exhibit A), unless
a change there from is authorized in writing. In such case, the terms of said change shall be
understood and agreed upon in writing by the City and Artist before commencement of said
revised work.
1.4 Post -Fabrication Services.
a. The Artist shall notify the City in writing when fabrication of the Artwork is
completed and ready for delivery and installation at the Site Location, 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:\City Oerk\Agreements.Contracts\Art Purchase Agreement Embassy Suites..doc Page 2 of 19
1.5 Post -Installation.
a. The Artist shall be available at such reasonable time or times as may be
agreed between the City and Artist to attend any and all inauguration, ground breaking, or
presentation ceremonies upon completion of the Artwork.
b. The City shall use reasonable efforts to arrange for publicity for the
completed Artwork by local media and publications, and otherwise as may be determined between
the City and Artist as soon as practicable following installation.
C. Upon installation of the Artwork, the Artist shall provide the City with
written instructions for appropriate maintenance and preservation of the Artwork.
1.6 Final Acceptance.
a. The Artist shall advise the City in writing that the Artwork will become the
responsibility of the City on the effective date of completion of the project and the acceptance as
complete by the City. Following receipt of such notice the City shall cause the installed Artwork
to be inspected by suitably qualified and appropriate professional(s), and within five (5) days
following completion of such inspection(s), the City shall either provide the artist with reasonably
specific written objections to the installed Artwork or notify the artist of its acceptance of the
Artwork by a Notice of Completion in the form attached hereto as Exhibit D. Such Notice of
Completion (Exhibit D) shall be evidence of the satisfactory completion and installation of the
Artwork in conformity with this Agreement, subject to the indemnification, representations, and
further performance obligations set forth in this Agreement.
b. Final Acceptance by the City of the ownership of the Artwork will occur at
the filing of the Notice of Completion. At that time, the ownership and responsibility for the
Artwork will rest with the City of La Quinta.
1.7 Risk of Loss. Upon receipt of the Notice of Completion, the risk of loss or damage
to the Artwork shall be borne by the City. The Artist shall take such measures as are necessary to
protect the Artwork from loss or damage, through insurance or other adequate security, and to
maintain the Artwork until the Notice of Completion is made by the City.
1.8 Title. Title to the Artwork and any construction drawings, plans, or other work
product generated pursuant to this Agreement shall remain with the Artist during fabrication and
installation, and shall pass and vest with the City upon issuance of Final Acceptance or
Termination pursuant to Article IX hereof.
1.9 Payment: The artist shall be paid the compensation set forth in Exhibit C. The total
compensation to be paid to the Artist shall not exceed $67,169 (sixty seven thousand, one
hundred sixty nine dollars).
Page 3 of 19
S:\City ClerMAgreements.Contracts\Art Purchase Agreement Embassy Suites..doc
ARTICLE II. TIME OF PERFORMANCE
2.1 Time. The Artist agrees to punctually and diligently perform all obligations under
this Agreement. It is further understood and agreed that should the Artist fail to furnish the labor,
materials, equipment, and or services, to perform all work and labor as herein provided in the
manner herein set forth in good and workmanlike manner, Artist shall, in addition to any other
penalties provided in the Agreement, be liable to the City for all losses or damages that either may
suffer on account thereof.
In the event Artist at the time refuses or neglects to supply a sufficient number of
properly skilled workers or a sufficient quantity of materials of proper quality, or in effect be
adjudicated bankrupt, or files a voluntary petition in bankruptcy, or commits any act of
insolvency, or makes an assignment, for benefit or creditors, without the City's prior written
consent, or fails to make prompt payment to his material men and laborers, or fails in any respect
to properly and diligently prosecute the work covered by this Agreement, or otherwise fails to
perform fully any and all of the Covenants and obligations herein contained; then the City may, at
its option, (1) after. giving twenty-four (24) hours written notice to Artist and City as applicable,
provide any such labor and materials as may be necessary ; or (2) terminate the Artist's right to
proceed with the work and, in the event, the City, at its option, shall have the right to enter upon
the Artist's warehouse and take possession, for the purpose of completing the work included under
this Agreement, of the Artwork or any portion thereof, and all materials, tools, and appliances
thereon, and may employ any other person or persons to finish the work and provide the materials
therefore.
In the event City provides labor and/or materials, as set forth in (1) above, or finishes the work,
as set forth in (2) above, City may deduct the cost of such labor and materials and all costs
incurred in finishing the work, if applicable, from any money then due or thereafter to become
due to Artist under this Agreement until the work undertaken by the City is completely finished.
At that time, if the unpaid balance of the amount to be paid to the Artist under this Agreement
exceeds the expenses incurred by the City in providing labor and materials and/or in finishing
Artist's work, such excess shall be paid by the City to Artist, but if such expense shall exceed
such unpaid balance, then Artist shall promptly pay to City the amount by which such expense
shall exceed such unpaid balance. The expense incurred by the City as herein provided, either for
furnishing materials, or for finishing the work, and any damages incurred by the City by reason of
Artist's default, shall be chargeable to, and paid by Artist, aforesaid, to secure the payment
thereof. If the City elects not to terminate Artist's right to proceed, Artist agrees to reimburse the
City for losses or damages resulting for the delay in speedy progress of work.
If Artist should neglect to prosecute the work properly or fail to perform any
provisions of this Agreement, the City, after ten (10) days written notice to Artist, may without
prejudice to any other remedy it may have make good such deficiencies. In the event the City
makes good such deficiencies, it may deduct the cost thereof from the payment then or thereafter -
due Artist.
In addition to specific provisions of Agreement, performance by either party
hereunder shall not be deemed to be in default where delays or defaults are due to war,
S:\City Clerk\Agreements.Contracts\Art Purchase Agreement Embassy Suites..doc Page 4 of 19
insurrection, strikes, lock -outs, riots, floods, earthquakes, fires, casualties, supernatural causes,
acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of
transportation, governmental restrictions or priority, litigation, unusually severe weather, inability
to secure necessary labor, materials or tools, delays of any contractor, subcontractor or supplies,
acts of the other party, acts or failure to act of any public or governmental agency or entity,
including, without limitation, unreasonable delays in the processing and issuance of required
permits for the installation of the Artwork by Artist (except that any act or failure to act of City
shall not excuse performance by City) or any other causes beyond the reasonable control or
without the fault of the party claiming an extension of time to perform. Notwithstanding the
foregoing, market and economic conditions shall not entitle Artist to an extension of time to
perform. An extension of time for any such cause shall be for the period of the enforced delay
and shall commence to run from the time of the commencement of the cause, if notice by the party
claiming such extension is sent to the other party within ten (10) days of knowledge of the
commencement of the cause. In addition, times of performance under this Agreement may be
extended by mutual written agreement by City and Artist.
ARTICLE III. WARRANTIES
3.1 Title. The Artist represents and warrants that: (a) the Artwork is solely the result
of the artistic effort of the Artist; (b) except as otherwise disclosed in writing to the City that the
Artwork is unique and original and does not infringe upon any copyright; (c) the Artwork, or a
duplicate thereof, has not been accepted for sale elsewhere; and (d) the Artwork is free and clear
of any and all encumbrances and/or monetary liens.
3.2 Quality and Condition. The Artist represents and warrants, except as otherwise
disclosed to the City in writing, that: (a) the fabrication of the Artwork will be performed in a
workmanlike manner; (b) the Artwork, as fabricated and following installation, will be free of
patent and latent defects in material and workmanship, including any defects or qualities which
cause or accelerate deterioration of the Artwork; and (c) reasonable maintenance of the Artwork
will not require procedures substantially in excess of those described in the maintenance
recommendations to be submitted by the Artist to the City.
The warranties described in this Section 3.2 shall survive for a period of one (1)
year after the Acceptance of the Artwork, except the representation and warranty concerning latent
defects shall survive for a period of three (3) years from after Acceptance of the Artwork. The
City shall give notice to the Artist of any observed and claimed breach with reasonable
promptness. The Artist shall, at the request of the City and at no cost to the City cure reasonably
and promptly the breach of any such warranty which is curable by the Artist and which cure is
consistent with professional conservation standards (including, for example, cure by means of
repair or refabrication of the Artwork).
ARTICLE IV. PERFORMANCE BONDS
S:\City Clerk\Agreements.Contracts\Art Purchase Agreement Embassy Suites..doc Page 5 of 19
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 se ., and all other rights in and to the Artwork except ownership and
possession, except as such rights are limited by this Agreement. In view of the intention that the
Artwork in its final dimension shall be unique, the Artist shall not make any additional exact
duplicate, dimensional reproductions of the final artwork, nor shall the Artist grant permission to
others to do so except with the written permission of the City provided, however, that at such time
as Final Acceptance by the City, the City alone may grant such approval. The Artist grants to the
City and its assigns an irrevocable license to make two-dimensional reproductions of the Artwork
for noncommercial purposes, including but not limited to reproductions used in advertising,
brochures, media publicity, and catalogues or other similar publications, provided that these rights
are exercised in a tasteful and professional manner.
5.2 Notice. All reproductions by the City shall contain a credit to the Artist and denote
its location, provided that United States copyright law protects the Artwork 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
any such services, provided that the City and the Artist mutually agree in writing, prior to the
commencement of any significant repairs or restorations, upon the Artist's fee for such services.
No fees shall be paid to Artist for repair or restoration due to a breach of the representations and
warranties set forth herein.
Page 6 of 19
S:\City Clerk\Agreements.Contracts\Art Purchase Agreement Embassy Suites..doc
b. All repairs and restorations shall be made in accordance with recognized
principles of conservation.
6.4 Maintenance and Alteration of the Artwork.
a. The City shall maintain the Artwork in a manner that the City determines
appropriate in its sole discretion. All decisions regarding alterations to the Artwork are within the
sole and absolute discretion of the City.
b. The City shall use its reasonable efforts to meet and consult with Artist prior
to the time of making any alteration. If any alteration is made without the consent of Artist, Artist
shall have the right to direct the City to remove Artist's name from the Artwork. In connection
herewith, Artist hereby acknowledges and agrees that Artist is familiar with the California Art
Preservation Act, as set forth in Section 987 of the California Civil Code and the Visual Artists
Rights Act of 1990, as set forth in 17 United States Code Annotated, Section 106A, and the rights
and protection afforded Artist there under, and Artist hereby waives each and all of Artist's rights
and protection under Section 987 of the California Civil Code and under 17 United States Code
Annotated, Section 106A, to the extent such rights and protection are inconsistent with this
Section 6.4; provided, however, that to the extent that the rights and protection afforded Artist
under Section 987 of the California Civil Code are not inconsistent with this Section 6.4 or pertain
to matters that are not dealt with in this Section 6.4, Artist shall retain such rights and protection.
6.5 Permanent Record. The City shall maintain a record of this Agreement and of the
location and disposition of the Artwork.
6.6 Artist's Address. The Artist shall notify the City of changes in address. The City
shall take reasonable effort(s) to locate the Artist when matters arise relating to the Artist's rights
under this Agreement.
6.7 Surviving Covenants. The covenants and obligations set forth in this Article VI
shall be binding upon the parties, their heirs, legatees, executors, administrators, assigns,
transferees and all their successors in interest, and the City's covenants do attach and run with the
Artwork and shall be binding to and until twenty (20) years after the death of the Artist unless
otherwise stated herein. Upon the death of the Artist, the representative of Artist's estate shall
assume the surviving covenants and obligations of Artist set forth in this Article VI.
ARTICLE 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. The Artist
shall not:
a. be supervised by any employee or official of the City;
Page 7 of 19
S:\City Clerk\Agreements.Contracts\Art Purchase Agreement Embassy Suites..doc
b. exercise supervision over any employee or official of the City;
C. have authority to contract for or bind the City in any manner; or represent
itself as an agent of the City; or otherwise be authorized to act for or on behalf of the City;
d. has status as the City's employee or has any right to any benefits that the
City grants to its employees.
ARTICLE 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 under this Agreement may be assigned to a financial institution without
approval.
ARTICLE IX. TERMINATION
The City may, at either its option, by written notice to the Artist, terminate this
Agreement either (a) upon the failure by Artist to perform any of its obligations hereunder in
accordance with the terms hereof or any other breach by Artist of the terms of this Agreement,
and such failure or breach continues uncured for fifteen (15) days following notice thereof from
the City to Artist ("Termination for Default"), or (b) at any other time in the sole and absolute
discretion of the City ("Discretionary Termination"). Termination for Default and Discretionary
Termination are sometimes hereinafter collectively referred to as "Termination". Upon
Termination, except as provided in this Article IX, all parties shall be released from all further
obligations and liability hereunder. Effective upon a Termination, the Artwork, or so much
thereof or has then been completed, shall be transferred to and shall belong to the City. In such
event and upon Artist's written request, the City shall remove Artist's name from the Artwork.
ARTICLE X. CONTRACTOR ADMINISTRATOR
The Contract Administrator for this Agreement shall be the City Community
Services Director. Wherever this Agreement requires any notice to be given to or by the City, or
any determination or action to be made by the City, the City Community Services Director shall
represent and act for the City.
ARTICLE XI. NON-DISCRIMINATION
In carrying out the performance of the services designated herein, none of the Artist
and the City shall discriminate as to race, color, creed, religion, marital status, national origin or
ancestry, and the Artist shall comply with the equality of employment opportunity provisions of
State and local laws and regulations as presently existing or hereafter amended.
ARTICLE XII. ENTIRE AGREEMENT
S:\City Clerk\Agreements.Contracts\Art Purchase Agreement Embassy Suites..doc Page 8 of 19
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
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
Page 9 of 19
S:\City Clerk\Agreements.Contracts\Art Purchase Agreement Embassy Suites..doc
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 Artist, to:
Bill Ware
73-891 Masson Street
Palm Desert, CA 92260
760-340-5024
ARTICLE XVIII. INDEMNITY
With respect to acts, errors or omissions in the performance of Artist's obligations
hereunder, Artist agrees to indemnify and hold harmless the City and its officers, agents,
employees, and representatives from and against any and all claims, demands, defense costs,
liability or consequential damage of any kind or nature arising out of Artist's (including either of
their subcontractors, agents, employees, assigns or licensees) negligent and/or willful acts, errors
or omissions in the performance of Artist's obligations under this Agreement.
With respect to acts, errors or omissions in the performance of the City's
obligations hereunder, the City agrees to indemnify and hold harmless Artist from and against any
and all claims, demands, defense costs, liability or consequential damages of any kind or nature
arising out of the City's (including its contractors') negligent and/or willful acts, errors or
omissions in the performance of the City's obligations under this Agreement.
The foregoing indemnities shall be in effect without regard to the maintenance of
insurance coverage for any such loss, costs, claims, damages or expenses.
ARTICLE XIX. INSURANCE
19.1 Policies. Throughout fabrication of the Artwork the Artist shall maintain
Comprehensive General Liability Insurance, or Commercial General Liability 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
Page 10 of 19
S:\City Clerk\Agreements.Contracts\Art Purchase Agreement Embassy Suites..doc
limit, written on an occurrence form, and such other forms and amounts of insurance as the City
may deem necessary or desirable. All required insurance shall be evidenced by an insurance
policy or policies (or the renewal or replacement thereof) reasonably acceptable to the City.
Artist, as applicable, shall not proceed with any work nor receive payment under this Agreement
until, among other things; the City has received the appropriate insurance certificates.
Artist, prior to completion, shall maintain or cause to be maintained standard all-
risk property insurance in an amount equal to or greater than the full replacement value of the
Artwork.
The Artist's General Liability policy required by this Agreement shall contain the
following clauses:
"The City of La Quinta and its officers, agents, employees, representatives,
and volunteers are added as additional insured as respective operations and
activities of, or on behalf of the named insured, performed under contract
with the City of La Quinta, "
Prior to commencing any work under this Agreement, Artist shall deliver to the
City insurance certificates confirming the existence of the insurance required by this Agreement,
and including the applicable clause referenced above. Also, within thirty (30) days of the
execution date of this Agreement, Artist shall provide to the City an endorsement to the General
Liability policy, which adds to this policy the applicable clause referenced above. Said
endorsement shall be signed by an authorized representative of the insurance company and shall
include the signator's company affiliation and title. Should it be deemed necessary by the City, it
shall be the Artist's responsibility to see that the City receives documentation acceptable to the
City, which sustains that the individual signing said endorsement is indeed authorized to do so by
the insurance company. Also, the City has the right to demand, and to receive within a reasonable
time period, copies of any insurance policy required under this Agreement.
In addition to any other remedies the City may have if Artist fails to provide or
maintain any insurance policies or policy endorsements to the extent and within the time herein
required, the City may, at its sole option, terminate this Agreement.
City's termination of the Agreement, however, is an alternative to other remedies
the City may have, and is not the exclusive remedy for Artist's failure to maintain insurance or
secure appropriate endorsements.
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
Page 11 of 19
S:\City Clerk\Agreements.Contracts\Art Purchase Agreement Embassy Suites..doc
shall in no way affect, impair or invalidate any other provision hereof, and such remaining
provisions shall remain in full force and effect.
20.2 Whenever in the specifications any materials or process is indicated or specified by
patent or proprietary name or by name of manufacturer, such specification shall be deemed to be
used for the purpose of facilitating description of the material and/or process desired, and shall be
deemed to be followed by the words "OR EQUAL", and Artist may offer any material or process
which shall be equal in every respect to that so indicated or specified.
20.3 Artist shall not offer any substitute in said proposal or if a substitute so offered by
Artist is not found to be equal to that so indicated or specified by name, if one only be so specified
or named, or, if more than one be so specified or named, then such one as shall be specified in the
proposal, or if none be so specified, then such one as shall be required by the City.
20.4 Unless a different date is provided in this Agreement, the Effective Date shall be
the latest Date of Execution, hereinafter set forth below the names of the signature hereto. Should
the Artist fail to enter a Date of Execution, the Effective Date shall be the Date of Execution by
the City.
20.5 The City shall give any subsequent owner of the Artwork written notice of the
covenants contained herein, and shall cause each such successive owner to be bound thereby.
Page 12 of 19
S:\City Clerk\Agreements.Contracts\Art Purchase Agreement Embassy Suites..doc
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
Munici Co ration
By:
THOMAS P. GENOVESE, City Manager
City of La Quinta, California
ATTEST:
9R�:� -JOL�
JUWGIttEK, City Clerk
City of La Quinta, California
APPROVED AS TO O
M. KAT ERINE jfNSON, City Attorney
City of La Quinta, California
ARTIST:
9, Me%
/ ,!4 '
S:\City Clerk\Agreements.Contracts\Art Purchase Agreement Embassy Suites..doc Page 13 of 19
EXHIBIT A
SCOPE OF DESIGN BUILD SERVICES
I. SCOPE OF WORK
1. Artist shall furnish all labor, engineering, material, tools, equipment, etc., required
to design the Artwork in accordance with the quality level and intent of the concept drawings as
prepared by Artist and approved by the City, along with all governing agency requirements and
code criteria.
2. Artist is responsible for submitting all required documents relating to the Artwork
design to appropriate government agencies so that building plan check and all required permits
may be obtained in a timely manner.
3. Artist shall immediately notify the City in writing of any cost impact or schedule
impact whether increase or decrease, resulting from any modifications to the design. Any
redesign fees or any other costs incurred by the City due to Artist's negligence or failure to keep
the City informed of scope variances in a timely manner shall be charged to the Artist.
4. Artist shall complete the design in sufficient scale and detail as required by the City
and governmental authorities for approval. The design documents shall bear the stamp of a
professional Mechanical, Structural and/or Electrical Engineer(s) licensed in the State of
California deemed necessary.
5. Artist's design and specifications shall be subject to approval by the City and its
consultants.
II. GENERAL ITEMS OF INCLUSION:
As a further clarification to the plans and specifications, the work shall include but not
necessarily be limited to the following:
1. Artist shall examine or cause to be examined all supporting and adjacent surfaces
and record any defects to the City prior to installing any material. The installation of any material
constitutes the Artist's complete acceptance of all substrates as compatible with the work under
this agreement.
2. Any work not provided for in this Agreement must be authorized by the City prior to
the installation of such work.
3. Artist is responsible for all repairs or replacement of any existing property or work
which is damaged as a result of the performance of the work under this Agreement.
S:\City Clerk\Agreements.Contracts\Art Purchase Agreement Embassy Suites..doc Page 14 of 19
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. Artist shall supply all landscaping required to complete the Artwork.
III. SPECIFIC ITEMS OF INCLUSION
1. The Artwork consists of:
Two contemporary, three dimensional horses (large female and small
foal) constructed of a brushed aluminum per City Council direction to be
located on the corner of Calle Tampico and Desert Club. Artwork is to be
integrated into the approved landscape plan for the project, not to be obscured
by vegetation or signage.
S:\City Clerk\Agreements.Contracts\Art Purchase Agreement Embassy Suites..doc Page 15 of 19
EXHIBIT B
SCHEDULE OF PERFORMANCE
SCHEDULING:
The project will take approximately 180 days to complete the fabrication of the
Artwork.
Work will commence during the month of February 2004 and completed, installed and
functioning by September 2004.
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:\City Clerk\Agreements.Contracts\Art Purchase Agreement Embassy Suites..doc Page 16 of 19
EXHIBIT C
SCHEDULE OF COMPENSATION
PRICE:
Basic Contract:
Total Not to Exceed
SCHEDULE OF PAYMENTS:
First payment due upon approval of
Art Purchase Agreement
Second payment due upon completion of
Fifty percent of the work
Third payment due upon installation of work
$679169
$679169
$20,000
$15,723
$159723
Final payment due upon filing Notice of Completion $15,723
S:\City Clerk\Agreements.Contracts\Art Purchase Agreement Embassy Suites..doc Page 17 of 19
0M11111.)0 011
NOTICE OF COMPLETION FOR ARTWORK
Piece of Artwork:
WHEREAS, by that certain Art Purchase Agreement dated January 20, 2004
("Agreement"), THE CITY OF LA QUINTA, a California municipal corporation (the "City")
contracted with Bill Ware (Artist) to provide certain "Artwork" (as defined in the Agreement);
and,
WHEREAS, as referenced in the Agreement, the City shall furnish Artist with a Notice of
Completion upon completion of the fabrication and installation of the Artwork; and,
WHEREAS, such certificate shall be conclusive determination of satisfactory completion of
the fabrication and installation of the Artwork, as required by the Agreement, has been
satisfactorily completed.
NOW, THEREFORE, the parties hereto certify as follows:
1. As provided in the Agreement, the City does hereby certify that the fabrication and
installation of the Artwork has been fully performed and completed. Any executory obligations
pursuant to the Agreement, which are hereby incorporated herein by reference, shall remain
enforceable according to their terms.
2. Nothing contained in this instrument shall modify in any other way any executory
portions of the Agreement.
IN WITNESS WHEREOF, the City has executed this certificate this day of
.2003.
CITY OF LA QUINTA, a California
municipal corporation
by:
S:\City Clerk\Agreements.Contracts\Art Purchase Agreement Embassy Suites..doc Page 18 of 19
EXHIBIT E
SITE LOCATION MAP
S:\City Clerk\Agreements.Contracts\Art Purchase Agreement Embassy Suites..doc Page 19 of 19
`01/28/2004 WED 08:42. FAX'76.0�777 7107 La Qulnta C1ty Clerk
0 001
TRANSMISSION OR
JOB NO.
DESTINATION ADDRESS
PSWD/SUBADDRESS
DESTINATION ID
ST. TIME
USAGE T
PGS.
RESULT
*********************
*** TX REPORT ***
0348
93405024
01/28 08:33
08'32
19
OR
ART E&LCHASE AGREEMENT
THYS ART PURCHASE AGREEMENT (the "Agreement") is entered into this 2& day of
January 2004, by and among THE CiTy OF 1.A QUINTA, a California municipal corporation
(the "City") and Bill Ware, an individual (Artist).
RECITALS
A. A Developer is currently constetiutg the Embassy Suites on the northeast
corner of Calle Tampico and Desert Club Drive. To meet the requirements for artwork
pursuant to Chapter 2.65 of the City Municipal Code, the City Council is commissioning the
fabrication and installation of certain ARTWORK (the "Artwork") to be installed and
displayed by the artist at the SITE LOCATION which is the terminus of the Cane Tampico
and Desert Club Drive (the "Site Locution").
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 &M of Desien..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 Sipe 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 R). The narratives shall