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La Quinta Historical Society & Maria Hunt/Art Purchase 13ART PURCHASE AGREEMENT �/ THIS AR PURCHASE AGREEMENT (the "Agreement") is entered into this / t day of 2013, by and among THE CITY OF LA QUINTA, a California municipal corporation ("City"), LA QUINTA HISTORICAL SOCIETY ("LQHS") and MARIA HUNT ("Artist"). RECITALS A. LQHS has requested approval for two Welcome Signs (the "Project') on the property generally located in City medians located in the Cove Neighborhood ("Properties"). The Project is subject to the artwork requirements of the City of La Quinta Art in Public Places Program set forth in Chapter 2.65 of the La Quinta Municipal Code (the "Municipal Code"). B. To meet the requirements for artwork pursuant to Chapter 2.65, LQHS is commissioning the fabrication and installation of certain artwork (the "Artwork") to be installed and displayed by Artist in medians west of Avenida Bermudas on Avenue 52nd and Eisenhower Drive south of Calle Tampico (the "Site Locations"). NOW, THEREFORE, in consideration of the performance by the parties of the mutual promises, covenants, and conditions contained hereinafter, the parties hereto agree as follows: ARTICLE I. SCOPE OF SERVICES AND PAYMENT 1.1 Scope of Design and Fabrication Services. Subject to the terms and conditions set forth in this Agreement, Artist shall (i) prepare, or cause to be prepared, conceptual design plans for the Artwork, including setting forth details and samples of the materials to be used and composition of the proposed Artwork; (ii) based on the conceptual design plans approved by City and LQHS, develop working drawings which shall be incorporated into the Schedule of Performance attached hereto as Exhibit A; and (iii) fabricate and install the Artwork as more particularly described in the Scope of Design Build Services and the Schedule of Performance attached hereto as Exhibit A and Exhibit B, respectively, and incorporated herein by this reference. Artist shall perform her obligations in strict conformance with the terms and conditions set forth in this Agreement and shall take all other actions necessary and incidental to the performance of said obligations. 1.2 Periodic Review. City and LQHS shall have the right to review the Artwork at reasonable times during the fabrication thereof. Artist shall submit regular progress narratives, including photographs, to City and LQHS as required by the Schedule of Performance set forth in Exhibit B. The narratives shall clearly state Page 1 of 21 the percentage of the Artwork completed to date and provide an estimated completion date.. 1.3 Materials and Labor. Artist shall furnish all tools, equipment, apparatus, labor, services, materials, and transportation necessary to perform the Design and Fabrication Services more fully described in Exhibit A and to install the Artwork, together with any appurtenances thereto, in a good and workmanlike manner in the Site Location(s) as more fully described in said Exhibit A or reasonably inferable therein. If Artist fails to furnish the labor, materials, equipment, and or services necessary to perform all work and labor as herein provided in the manner herein set forth in good and workmanlike manner, Artist shall, in addition to any other penalties provided in the Agreement, be liable to LQHS and City for all losses or damages that either may suffer as a result of such failure, including any additional costs incurred by City or LQHS in obtaining such material or labor from other sources. 1.4 Change Orders. Artist shall strictly adhere to the Scope of Design Build Services set forth in Exhibit A, unless a change there from is authorized in writing by City and LQHS. Artist shall present any and all significant changes to the Artwork not permitted by or in substantial conformity with the approved working drawings and the Scope of Design Build Services set forth in Exhibit A to City and LQHS in writing in advance for their review and approval. If City and LQHS grant such approval, the terms of said change shall be memorialized in a written change order signed by all parties hereto prior to commencement of said revised work. For the purposes of this section, a "significant change" is any change in the scope, design, color, size, material, texture, or site location which affects installation, scheduling, site preparation, or maintenance for the Artwork or the schematic concept of the Artwork as represented in the schematic drawings, the approved working drawings, and the Scope of Design Build Services set forth in Exhibit A. 1.5 Working Environment. Artist (and LQHS, if appropriate) shall, at all times, maintain a safe work area and provide safe access to both the Artwork and the sites wherein the Artwork is located prior to installation at the Site Location for inspection of the Artwork by City and its representatives. 1.6 Testing and Inspections. Where specifications require the Artwork to be specially tested or approved, Artist shall not perform such testing, or cause such testing to be performed, until (1) Artist or LQHS has first provided timely notice to City that the Artwork is ready for inspection and/or testing, and (2) City has inspected and approved of the Artwork or consented to said testing in writing. Artist shall, at its sole cost and expense, perform all work required to comply with scheduled inspections and testing, and any requests for corrections City or other inspection authorities make as a result of such inspections or testing. Page 2 of 21 1.7 Post -Fabrication Obligations. a. LQHS and/or Artist shall notify City in writing when the fabrication of the Artwork is completed and the Artwork is ready for delivery and installation at the Site Location(s) designated in Exhibit A and Exhibit B. b. Upon completion of the Artwork, and at all times during the fabrication and installation process, Artist shall ensure that the Artwork complies with all applicable statutes, ordinances and regulations of any governmental agency having jurisdiction over the Artwork. Artist shall also ensure that the Artwork is installed in a safe manner, and is designed to withstand the forces of nature it is expected to be exposed to during its lifetime, including, but not limited to, wind, rain, sun, and earthquake, as reasonable for artwork of a similar nature. 1.8 Post -Installation Obligations. a. LQHS shall use reasonable efforts to arrange for publicity for the completed Artwork by local media and publications and as otherwise determined between City, LQHS, and Artist as soon as practicable following installation. b. Upon installation of the Artwork, Artist shall provide LQHS and City with written instructions for appropriate maintenance and preservation of the Artwork. 1.9 Final Acceptance. a. Artist shall advise LQHS and City in writing when Artist believes that installation of the Artwork at the Site Location(s) is complete. Following receipt of such notice, LQHS and City shall promptly cause the installed Artwork to be inspected. Within five (5) working days following completion of such inspection(s), City and LQHS shall either (i) provide Artist with reasonably specific written objections, and a list of necessary corrections to the installed Artwork that Artist must complete, or (ii) notify Artist of their acceptance of the Artwork by issuing a Notice of Completion in the form attached hereto as Exhibit D. Said Notice of Completion shall be evidence of the satisfactory completion and installation of the Artwork in conformity with this Agreement, subject to the indemnification, representations, and further performance obligations set forth in this Agreement. 1.10 Risk of Loss. Artist shall bear the risk of loss or damage to the Artwork during the fabrication and installation phases until LQHS and City issue the Notice of Completion indicating their acceptance of the Artwork as provided in Section 1.9. Upon Artist's receipt of the Notice of Completion, the risk of loss or damage to the Artwork shall be borne by the City. The City shall take the measures Page 3 of 21 described in Article VII of this Agreement, as necessary, to protect the Artwork from loss or damage and shall maintain the Artwork. 1.11 Compensation to Artist: City agrees to pay Artist for the Artwork the compensation set forth in Exhibit C. The total compensation to be paid to Artist shall not exceed $6,760 (Six Thousand Seven Hundred and Sixty Dollars). The parties agree that said compensation represents full payment to Artist for the design, fabrication and installation of the Artwork, including compensation for all professional services and reimbursement for expenses, and neither City nor LQHS shall have any additional financial obligations under this Agreement. ARTICLE II. TIME OF PERFORMANCE 2.1 Time. Artist shall perform his/her obligations under this Agreement in a punctual and diligent manner and in accordance with the Schedule of Performance attached hereto as Exhibit B. In the event Artist fails to perform fully any and all of its obligations under this Agreement, then City and/or LQHS may, at their option, after first giving twenty-four (24) hours written notice to Artist, provide any such labor and materials as may be necessary for the completion of the Artwork. In such event, City and/or LQHS may deduct the cost of said labor and materials and all costs incurred in finishing the work, if applicable, from any money then due or thereafter to become due to Artist under this Agreement until the work undertaken by LQHS or City is completely finished. Upon completion of the work, if the unpaid balance of the amount to be paid to Artist under this Agreement exceeds the expenses incurred by LQHS or City in securing labor and materials from other sources and/or in finishing Artist's work, such excess shall be paid to Artist. Conversely, if the expenses incurred by City and/or LQHS as described above exceed the unpaid balance due to Artist, then Artist shall promptly pay to City and/or LQHS the amount by which such expenses exceed the remaining unpaid balance. The expense incurred by City and/or LQHS, as herein provided, shall be chargeable to and paid by Artist. ARTICLE III. WARRANTIES 3.1 Title. Artist represents and warrants that: (a) the Artwork is solely the result of the artistic effort of the Artist and Artist is the creator and owner of the Artwork design; (b) that the Artwork is unique and original and does not infringe upon any copyright; (c) that the Artwork has not been accepted for sale elsewhere; (d) that to the best of his/her knowledge the Artwork is not presently subject to claims of ownership, lien or encumbrance or to common law or statutory copyright claims of any other person, institution, or domestic or foreign government; and (a) that the Artwork is free and clear of any and all encumbrances and/or monetary liens. Artist covenants to defend, indemnify and hold City, LQHS, and their respective officials, officers, employees, servants, attorneys, volunteers, and agents harmless from any loss, claim or liability in any way related to a claim that that the Artwork violates federal, state or local laws, or any contractual provisions, Page 4 of 21 relating to copyrights, trade names, licenses, franchises, patents or other means of protecting interests in products or inventions. Artist shall bear all costs arising from the use of patented, copyrighted, trade secret or trademarked materials, equipment, devices or processes used on or incorporated in the Artwork produced under this Agreement. In case such materials, equipment, devices or processes are held to constitute an infringement and their use is enjoined, Artist shall, at his/her expense, either (a) secure for City and LQHS the right to continue exhibiting the Artwork by suspension of any injunction or by procuring a license or licenses for City and LQHS; or (b) modify the Artwork so that it becomes non -infringing. The covenant and warranties set forth in this Section 3.1 shall survive the termination of this Agreement. 3.2 Quality and Condition. Artist represents and warrants, except as otherwise disclosed to City in writing, that: (a) the fabrication of the Artwork will be performed in a workmanlike manner; (b) the Artwork, as fabricated and following installation, will be free of patent and latent defects in material and workmanship, including any defects or qualities which cause or accelerate deterioration of the Artwork; and (c) reasonable maintenance of the Artwork will not require procedures substantially in excess of those described in the maintenance recommendations to be submitted by Artist to LQHS and City. The warranties described in this Section 3.2 shall survive for a period of one (1) year after acceptance of the Artwork as evidenced by a Notice of Completion issued in accordance with Section 1.9, except the representation and warranty concerning latent defects shall survive for a period of three (3) years from the acceptance of the Artwork. LQHS and/or City shall give notice to Artist of any observed and claimed breach with reasonable promptness. Artist shall, at the request of City or LQHS and at no cost to City or LQHS, cure reasonably and promptly the breach of any such warranty which is curable by Artist and which cure is consistent with professional conservation standards (including, for example, cure by means of repair or re -fabrication of the Artwork). ARTICLE IV. LOCATION AND DISPLAY OF ARTWORK 4.1 Location/Display. Notwithstanding any other provision of this Agreement, Artist hereby acknowledges and agrees that all decisions regarding placement and location of the Artwork are within the sole and absolute discretion of the LQHS and City. Artist further acknowledges and agrees that City shall have sole and absolute discretion to make alterations to, relocate, or remove and dispose of the Artwork in their sole and absolute discretion. In the event the City elects to remove and dispose of the Artwork, City shall, subject to the provisions of Section 9.3 of this Agreement, notify Artist at least 30-days in advance of the proposed removal and provide Artist an opportunity, at his/her sole costs, to take possession of and remove the Artwork from the Site. Page 5 of 21 ARTICLE V. PARTY REPRESENTATIVES 5.1 City Representative. For the purposes of this Agreement, City's representative shall be the Director of Community Services, or such other person as the Director designates in writing (hereinafter the "City Representative"). It shall be Artist's and LQHS's responsibility to assure that the City Representative is kept informed of the progress of the performance of the services and obligations more particularly described in Exhibit A, and Artist and LQHS shall refer any decisions which must be made by City to the City Representative. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the City Representative. 5.2 LQHS Representative. For the purposes of this Agreement, LQHS's representative shall be Linda Williams, LQHS President, or such other person as LQHS designates in writing (hereinafter the "LQHS Representative"). The LQHS Representative shall be responsible during the term of this Agreement for directing all activities of Artist and devoting sufficient time to personally supervise the services provided by Artist hereunder. The LQHS Representative shall also be responsible for overseeing and ensuring LQHS's performance of its obligations under this Agreement. The LQHS Representative may not be changed by LQHS without the prior written consent of City. 5.3 Artist Representative. For the purposes of this Agreement, Maria Hunt ("Artist"), is the sole principal and representative of Artist authorized to act in his/her behalf with respect to the services specified herein and make all decisions in connection therewith. It is expressly understood that the experience, knowledge, capability and reputation of Artist were a substantial inducement for City and LQHS to enter into this Agreement. Therefore, Artist shall be responsible during the term of this Agreement for performing or directing all activities of Artist and devoting sufficient time to personally perform or supervise, as appropriate, the services hereunder. Artist may not assign all or any of his/her obligations under this Agreement without the prior written approval of both City and LQHS. ARTICLE VI. OWNERSHIP OF ARTWORK 6.1 Ownership of Artwork. Title to the Artwork and any construction drawings, plans, or other work product generated pursuant to this Agreement shall pass to and vest with City in interest to the Property upon (i) the issuance of the Notice of Completion acknowledging Final Acceptance pursuant to Section 1.9 or (ii) Termination of the Agreement as provided in Article X hereinafter. 6.2 Title to Intellectual Property. Title to all copyright and other intellectual property rights in the Artwork shall remain with Artist except as otherwise provided in this Agreement. Notwithstanding the foregoing, Artist, on behalf of him/herself and his/her successors, heirs and assigns, hereby grants in perpetuity to City and LQHS, and their respective heirs, successors and assigns, the right to photograph, Page 6 of 21 film, videotape, or otherwise depict the Artwork at any time during the term of this Agreement and to use such photographs, film, videotapes, or other depictions at any time thereafter for commercial and noncommercial purposes to promote the exhibition, the City of La Quinta, or the Project. Such uses shall give full artistic credit to Artist. ARTICLE VII. ADDITIONAL CITY OBLIGATIONS 7.1 Maintenance and Alteration of the Artwork. At all times the Artwork vests in City, the City shall maintain the Artwork in good condition. Covenant, including, but not limited to promptly removing any graffiti or damage from the elements; (ii) obtain and maintain insurance in an amount not less than the appraised value to repair or replace the Artwork in the event of loss or damage; (iii) ensure transfer of title to the Artwork as a fixed asset on the Property. 7.2 Location and Disposition. City shall select the initial location for placement of the Artwork on the Property (the "Site Location"). After installation of the Artwork at the Site Location, LQHS shall not thereafter change the location or dispose of the Artwork without the prior written consent of City. ARTICLE VIII. ADDITIONAL ARTIST OBLIGATIONS 8.1 Artist's Address. Artist shall notify City and LQHS of any change in address. City or LQHS shall take reasonable effort(s) to locate Artist when matters arise relating to the Artist's rights under this Agreement. 8.2 Surviving Covenants. The covenants and obligations set forth in this Article VIII shall be binding upon the parties, their heirs, legatees, executors, administrators, assigns, transferees and all their successors in interest, and City's covenants do attach and run with the Artwork and shall be binding to and until twenty (20) years after the death of the Artist unless otherwise stated herein. Upon the death of the Artist, the representative of Artist's estate shall assume the surviving covenants and obligations of Artist set forth in this Article VIII. 8.3 Independent Contractor. Artist is, and shall at all times remain as to City and LQHS, a wholly independent contractor. Artist shall have no power to incur any debt, obligation, or liability on behalf of City or LQHS or otherwise act as an agent of City or LQHS. Neither City, LQHS, nor any of their respective agents shall have control over the conduct of Artist or any of Artist's employees (if any), except as set forth in this Agreement. Artist shall not, at any time, or in any manner, represent that it or any of its officers, agents or employees are in any manner employees of City or LQHS. Artist agrees to pay all required taxes on amounts paid to Artist under this Agreement, and to indemnify and hold City and LQHS harmless from any and all taxes, assessments, penalties, and interest asserted against City or LQHS by reason of the independent contractor relationship created Page 7 of 21 by this Agreement. Artist shall fully comply with the workers' compensation law regarding Artist and its employees (if any). Artist further agrees to indemnify and hold City and LQHS harmless from any failure of Artist to comply with applicable workers' compensation laws. City shall have the right to offset against the amount of any fees due to Artist under this Agreement any amount due to City or LQHS from Artist as a result of Artist's failure to promptly pay to City or LQHS any reimbursement or indemnification arising under this Section 8.3. ARTICLE IX. ARTIST'S RIGHTS 9.1 Repairs and Restoration. a. City and LQHS shall have the right to determine, after consultation with a professional art conservator, when and if repairs and restoration to the Artwork will be made. At LQHS's and City's option, Artist, during Artist's lifetime, may be given the opportunity to make or personally supervise significant repairs and restorations and shall be paid .a reasonable fee for any such services, provided that LQHS, City and Artist mutually agree in writing, prior to the commencement of any significant repairs or restorations, upon Artist's fee for such services. LQHS and/or City shall have no obligation to utilize the services of Artist in this respect if they choose to have the repairs and restoration done by other professionals. No fees shall be paid to Artist for repair or restoration due to a breach of the representations and warranties set forth herein. b. All repairs and restorations shall be made in accordance with recognized principles of conservation. 9.2 Waiver of Rights. If any alteration is made to the Artwork without the consent of Artist, Artist shall have the right to direct the LQHS to remove Artist's name from the Artwork. In connection herewith, Artist hereby acknowledges and agrees that Artist is familiar with the federal Visual Artists Rights Act (17 U.S.C. § § 106A and 1 13(d)1, the California Art Preservation Act (Cal. Civil Code § 987 et seq.), and the rights and protection afforded Artist thereunder. Artist, on behalf of him/herself and on behalf of his/her successors, heirs, and assigns, hereby waives, releases and disclaims any rights, demands or claims as may arise at any time and under any circumstances against City, and its elected and appointed officials, officers and employees arising under the federal Visual Artists Rights Act (17 U.S.C. § § 106A and 1 13(d)), the California Art Preservation Act (Cal. Civil Code § 987 et seq.), and any other local, state, federal or international laws that convey rights of the same nature, or any other type of moral right protecting the integrity of works of art to the fullest extent permitted by law. Without limiting the generality of the foregoing, Artist expressly waives any rights under the federal Visual Artists Rights Act (17 U.S.C. §§ 106A and 113(d)►, the California Art Preservation Act (Cal. Civil Code § 987 et seq.), and any other local, state, federal Page 8 of 21 or international laws relating to the location, placement, or removal and disposal of the Artwork. ARTICLE X. ASSIGNMENT OR TRANSFER 10.1 Neither Artist nor LQHS shall assign or transfer any interest in this Agreement without the prior written consent of City. If the assignment is approved the parties shall enter an assignment and assumption agreement. Any attempt by LQHS or Artist to assign, transfer, or subcontract any rights, duties, or obligations arising hereunder without city's prior written consent shall be null, void and of no effect. ARTICLE XI. TERMINATION 11.1 LQHS and City may, at either their option, by written notice to Artist, terminate this Agreement either (a) upon the failure by Artist to perform any of its obligations hereunder in accordance with the terms hereof or any other breach by Artist of the terms of this Agreement, and such failure or breach continues uncured for fifteen (15) days following notice thereof from City to Artist ("Termination for Default"), or (b) at any other time in the sole and absolute discretion of City and LQHS, acting together ("Discretionary Termination"). Termination for Default and Discretionary Termination are sometimes hereinafter collectively referred to as "Termination." Upon Termination, except as provided in this Article X, all parties shall be released from all further obligations and liability hereunder. Effective upon a Termination, the Artwork, or so much thereof or has then been completed, shall be transferred to and shall belong to LQHS. In the event of a Discretionary Termination, LQHS shall reimburse City for the full amount of Art in Public Places funding that was provided by City for the Artwork. In such event and upon Artist's written request, LQHS shall remove Artist's name from the Artwork. ARTICLE XII. INSURANCE AND INDEMNIFICATION. 12.1 Insurance. Prior to commencing any work under this Agreement, and throughout the duration of the term of this Agreement, Artist shall procure and maintain, at its sole cost, and submit concurrently with its execution of this Agreement, insurance as described herein. All insurance coverage required by this Agreement shall be placed with insurers authorized to do business in the State of California with an A.M. Best and Company rating level of A- or better, Class VI or better, unless otherwise approved by City's Risk Manager in writing. 12.1.1. Minimum Coverage. Insurance shall include the following (or broader) coverage: a. Insurance Services Office Commercial General Liability coverage "occurrence" form CG 00 01 or its exact equivalent with an edition date prior to 2004 and with minimum limits of $1,000,000 per occurrence and $2,000,000 in the aggregate. Page 9 of 21 12.1.2. Required Endorsements. Liability insurance' policies required to be provided by Artist hereunder shall contain or be endorsed to contain the following provisions: a. City, LQHS, its employees, officials, agents and member agencies shall be covered as additional insureds. Coverage shall apply to any and all liability arising out of the Work or related to the Contract. Additional insured status under the general liability requirement shall be provided on Insurance Services Office Form CG 20 10 with an edition date prior to 2004, or its equivalent. Additional insured status for completed operations shall be provided either in the additional insured form or through another endorsement such as CG 20 37 with an edition date prior to 2004. b. General liability insurance shall apply to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. Coverage will not be limited to City's or LQHS's vicarious liability. C. Liability coverage shall be primary and non-contributing with any insurance maintained by City or LQHS. d. Each policy required hereunder, and the associated evidence of coverage (including employer's liability policies), shall provide that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after 30 days' prior notice has been given to City and LQHS. Such provision shall not include any limitation of liability of the insurer for failure to provide such notice. e. No liability insurance coverage provided to comply with this Agreement shall prohibit Artist, or Artist's employees, or agents, from waiving the right of recovery prior to a loss. Artist waives its right of recovery against City and LQHS. 12.1.3. Verification of Coverage. Artist shall deposit with City within fifteen (15) days of Notice to Proceed of the Contract certificates of insurance evidencing the coverage required hereunder and all required endorsements. 12.1.4. No Waiver or Obligation. There shall be no recourse against City or LQHS for payment of premiums or other amounts with respect to the insurance required to be provided by Artist hereunder. Any failure, actual or alleged, on the part of City or LQHS to monitor compliance with these requirements will not be deemed as a waiver of any rights on the part of City or LQHS. City and LQHS have no additional obligations by virtue of requiring the insurance set forth herein. In the event any policy of insurance required under this Agreement does not comply with these requirements or is canceled and not replaced, City and LQHS have the right but not the duty to Page 10 of 21 obtain the insurance it deems necessary and any premium paid by City or LQHS will be promptly reimbursed by Artist or City will withhold amounts sufficient to pay premium from Artist payments. 12.1.5. Prompt Notice. Artist agrees to provide immediate notice to City and LQHS of any claim or loss against Artist arising out of the work performed under this agreement. City and LQHS assume no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City or LQHS. 12.1.6. Subcontractors. Artist shall include all subcontractors, if any, as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor approved by City and LQHS. All coverages for subcontractors, if any, shall be subject to all of the requirements stated herein unless otherwise approved in advance in writing by City's Risk Manager. 12.2 Indemnification. 12.2.1. Indemnification. To the fullest extent permitted by law, Artist shall indemnify, protect, defend and hold harmless City and LQHS and any and all of its officials, employees and agents ("Indemnified Parties") from and against any and all liability, claims, suits, actions arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including, without limitation, incidental and consequential damages, actual attorney fees incurred by City and LQHS, court costs, interest, defense costs including fees of expert Artists or expert witnesses incurred in connection therewith and any other costs or expenses of any kind whatsoever incurred in relation to, as a consequence of or arising out of or in any way attributable, in whole or in part, to Artist's performance of this Agreement. All obligations under this provision are to be paid by Artist as City and LQHS incur them. 12.2.2 Exception to Artist's Obligation to Indemnify. Without affecting the rights of City or LQHS under any provision of this Agreement or this section, Artist shall not be required to indemnify and hold harmless City or LQHS as set forth above for liability attributable to the sole fault of City or LQHS, provided such sole fault is determined by agreement between the parties or by the findings of a court of competent jurisdiction. This exception will apply only in instances where City or LQHS is shown to have been solely at fault and not in instances where Artist is solely or partially at fault or in instances where City's or LQHS's fault accounts for only a percentage of the liability involved. In those instances, the obligation of Artist will be all-inclusive and City and LQHS will be indemnified for all Page 11 of 21 liability incurred, even though a percentage of the liability is attributable to conduct of City or LQHS. 12.2.3 Artist Acknowledgment. Artist acknowledges that its obligation pursuant to this section extends to liability attributable to City and LQHS, if that liability is less than the sole fault of City or LQHS. 12.2.4 Indemnity Provisions for Subcontractors. Artist agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subcontractor, sub tier Artist or any other person or entity involved by, for, with or on behalf of Artist in the performance of this Agreement. In the event Artist fails to obtain such indemnity obligations from others as required here, Artist agrees to be fully responsible according to the terms of this section. 12.2.5 No Waiver; Survival. Failure of City or LQHS to monitor compliance with the requirements of this Section 12.2 imposes no additional obligations on City or LQHS and will in no way act as a waiver of any rights hereunder. Artist's obligation to indemnify and defend City and LQHS as set forth herein is binding on the successors, assigns, or heirs of Artist and shall survive the termination of this Agreement or this section. 12.3 Remedies. In addition to any other remedies City and LQHS may have if Artist fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City or LQHS may, at its sole option: a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement. b. Order Artist to stop work under this Agreement and/or withhold any payment(s) which become due to Artist hereunder until Artist demonstrates compliance with the requirements hereof. C. Terminate this Agreement. Exercise of any of the above remedies, however, is an alternative to any other remedies City or LQHS may have. The above remedies are not the exclusive remedies for Artist's failure to maintain or secure appropriate policies or endorsements. Nothing herein contained shall be construed as limiting in any way the extent to which Artist may be held responsible for payments of damages to persons or property resulting from Artist's or its subcontractors' performance of work under this Agreement. Page 12 of 21 ARTICLE XIII. GENERAL PROVISIONS 13.1 Notices. All notices, requests, demands and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given (a) upon the delivery or receipt thereof, as the case may be, if delivered personally or recognized overnight courier service; or (b) on the third business day following deposit in the United States mail, sent by registered or certified mail, return receipt requested, postage prepaid, to the addresses set forth below, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this section. All notices shall be addressed as follows: CITY: City of La Quinta Attn: Community Services Director 78-495 Calle Tampico La Quinta, CA 92253 (760) 777-7032 ARTIST - Maria Hunt 80127 Maramar Drive Indio, CA 92203 (760) 774-6363 LQHS: La Quinta Historical Society Attn: Linda Williams, President 77-885 Avenida Montezuma La Quinta, CA 92253 13.2 Nondiscrimination. In the performance of the services under this Agreement, neither Artist nor City nor LQHS shall discriminate as to race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation. In addition, Artist shall comply with the equality of employment opportunity provisions of State and local laws and regulations as presently existing or hereafter amended. 13.3 Entire Agreement. This Agreement and all exhibits attached hereto and incorporated herein by specific reference, embodies the entire integrated agreement and understanding between the parties hereto. There are no other agreements or understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby, except as set forth herein above. 13.4 Modification. This Agreement and each of the terms embodied herein may be amended, altered, changed, or modified only by a written instrument signed by each party hereto and approved by appropriate action of City and LQHS. 13.5 Waiver. No waiver of performance by any party hereto shall be construed as or operate as a waiver of any subsequent default of any terms, covenants and conditions of this Agreement. The payment or acceptance of fees for any period Page 13 of 21 after a default shall not be deemed a waiver of any right or acceptance of defective performance. 13.6 Governing Law; Venue. This Agreement, regardless of where executed or performed, shall be governed by and construed in accordance with the laws of the State of California. In addition to any other rights or remedies and subject to the restrictions otherwise set forth in this Agreement, any party hereto may institute legal action to seek specific performance of the terms of this Agreement, to recover damages, or to obtain any other remedy, at law or in equity, consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Riverside, in the Indio Branch municipal court, or in the Federal District Court in the district of California, which includes Riverside County. 13.7 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of City, LQHS, and Artist, and their respective heirs, personal representatives, successors and permitted assigns. 13.8 Severance. If a court of competent jurisdiction determines that any provision(s) of this Agreement is invalid, void, or illegal, such provision(s) shall be severed from the Agreement and shall in no way affect, impair or invalidate any other provision hereof, and such remaining provisions shall remain in full force and effect. 13.9 Substitution. Whenever in the specifications of materials or process the Scope of Services indicates or specifies materials or processes by patent or proprietary name or by name of manufacturer, such specification shall be deemed to be used for the purpose of facilitating description of the material and/or process desired, and shall be deemed to be followed by the words "OR EQUAL," and Artist may offer any material or process which shall be equal in every respect to that so indicated or specified. Artist shall not offer any substitute material or process if a substitute so offered by Artist is not found to be equal to that so indicated or specified by name, if one only be so specified or named, or, if more than one be so specified or named, then such one as shall be specified in the proposal, or if none be so specified, then such one as shall be required by City or LQHS. 13.10 Effective Date. Unless a different date is provided in this Agreement, the Effective Date shall be the latest Date of Execution, hereinafter set forth below the names of the signature hereto. Should Artist fail to enter a Date of Execution, the Effective Date shall be the Date of Execution by City. 13.11 Force Majeure. In addition to specific provisions of Agreement, performance by any party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lock -outs, riots, floods, earthquakes, fires, casualties, supernatural causes, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, Page 14 of 21 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 LQHS, City and Artist. [THIS SPACE INTENTIONALLY LEFT BLANK — SIGNATURES BEGIN ON NEXT PAGE] Page 15 of 21 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. CITY: ATTEST: SUSAN MAYSELS, City C16rk City of La Quinta, California APPROVED AS, TO CITY OF LA QUINTA, a California Municipal Corporation M. FAtFHERIN� JFNSON, City Attorney City of La Quibtcy California LQHS: LA QUI TA HISTORICAL SOCIETY WILLIAMS, President ARTIST: MARIA MARIA HUNT Page 16 of 21 1*A:11;31911 SCOPE OF DESIGN BUILD SERVICES SCOPE OF WORK a. Artist shall furnish all labor, material, tools, equipment, etc., required to design the Artwork in accordance with the quality level and intent of the concept drawings as prepared by Artist and approved by City and LQHS. b. Artist shall complete the design in sufficient scale and detail as required by City and LQHS authorities for approval. C. Artist's design and specifications have been approved by City and LQHS. No changes shall be made without approval of City and LQHS. II. GENERAL ITEMS OF INCLUSION: The work shall include but not necessarily be limited to the following: a. Artist shall examine or cause to be examined all supporting and adjacent surfaces and record any defects to LQHS and City prior to installing any material. The installation of any material constitutes the Artist's complete acceptance of all substrates as compatible with the work under this agreement. b. Artist is responsible for all repairs or replacement of any existing property or work which is damaged as a result of the performance of the work under this Agreement. C. IArtist shall provide for all unloading, hoisting, and bracing for the Artwork. d. Artist shall provide all drilling, coring, cutting, fastening required for the artwork. e. Artist shall supply and install all specialty lighting required to complete the artwork. III. SPECIFIC ITEMS OF INCLUSION The two welcome signs will be installed in the center of the median where identified by the City and installed in concrete. Every effort shall be made to secure the artwork in a manner to prevent theft. Page 17 of 21 The City will have an archived document listing the materials and sealers. This document will specify the type of equip ent and materials used in the event repairs are needed. The lighting will include two solar powef mounted ground lights to direct light upward toward the artwork installed by the, Artist. Page 10 of 21 I*A:IM112:3 SCHEDULE OF PERFORMANCE SCHEDULING: "Welcome Signs" shall be completed within eight weeks of the execution of this Agreement. Page 19 of 21 EXHIBIT C SCHEDULE OF COMPENSATION SCHEDULE OF PAYMENT TO ARTIST BY CITY: City shall pay Artist a deposit in the amount of: $3,000 City shall pay Artist after completion: Total Not to Exceed: $3,760 $ 6, 760 Page 20 of 21 EXHIBIT D NOTICE OF COMPLETION FOR ARTWORK Piece of Artwork: Welcome Signs WHEREAS, by that certain Art Purchase Agreement dated , 2013 ("Agreement"), The City of La Quinta, a California municipal corporation ("CITY") contracted with LA QUINTA HISTORICAL SOCIETY ("LQHS") and Maria Hunt ("Artist") to provide certain "Artwork" (as defined in the Agreement); and, WHEREAS, as referenced in the Agreement, City and LQHS shall furnish Artist with a Notice of Completion upon completion of the fabrication and installation of the Artwork; and, WHEREAS, such certificate shall be conclusive determination of satisfactory completion of the fabrication and installation of the Artwork, as required by the Agreement, has been satisfactorily completed. NOW, THEREFORE, the parties hereto certify as follows: 1. As provided in the Agreement, City and LQHS do hereby certify that the fabrication and installation of the Artwork has been fully performed and completed. 2. Nothing contained in this instrument shall modify in any other way any executory portions of the Agreement. IN WITNESS WHEREOF, City has executed this certificate this day of , 2014. CITY OF LA QUINTA, a California Municipal Corporation LA QUINTA HISTORICAL SOCIETY -32 Page 21 of 21 ok TLD 11-27-13 , � A4(JRU CERTIFICATE OF LIABILITY INSURANCE Dill C(N NO Y YY2U13 YI 1UI 11;'20 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW, THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER($), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certihwto holder i5 an ADDITIONAL INSURED, the policylies) must be endorsed. It SUBROGATION IS WAIVED. subioct 1. the terms and conditions of the policy, certain policies may requue an endorsement A statement on this certificate does not confer rights to the codiflcate holder in lieu of such endorsement(s), PRI)DUCER TOM GORSKI INSURANCE AGENCY INC. Iuau 4 r Jash FncV 95 ARGONAUT SUITE 120 IA's, ¢a. EAL 949-a3T-90SO rAx I.tn.e, Not; 949.33E 0532 At -ISO VIEJO, CA 92656 E.m<IL —_ ADDRESS: josb2tnmgorskl.nei I"SUREli AFFORDING_ COVERAGE_ I NAICI �. !NSURERA: SCILff1Bll(i,Jer31 e5UfD I1Ce Cgmp3r,y 2516t INSURED HUNT, MARIA INSUREaa 60127 MARAMAR OR =43URER4 I INDIO CA 92203-4854- I"SURERE_ -,--- _ INAIIRrn f I nvmucn: THIS IS TO C.11N 11fY THAT if1E POLICIES OF INSURANCI: LISTED BELO`i+ /IAVL OEGN ISSUED TO Yee INSURED N&MI-U ABOVE FOR THE I'QLICY Pei INDICAIE'D. NOTWITHSTANDING ANY RFOU,TIEMENT. TERAJ Of/ CONDITI(ae OF ANY CONTRACT OR OTNErf DOCURIEN7 WTH :{LSPRC r ' TO WHICH rigs CERTIFICATE MAY 13E ISSWdO OR MAY PERTAIN, T11C INSURANCE AFI:01Yk.0 BY THF. PQIJCILS DESCRIBED nli It ClV IS SUBJECT iG [XCLUSIGN$ AND CONDI I IONS OF SUCH POLICIES. LIMITS $HOk\1Y R-AV I IAVE BFFN RGOUCEO BY PAID Cl AIMS. - ALL 1Hf: TI?klEj, INS tI AWL.4-UaR: HnudYLrI I Full £XP rHl PIPE OI INSUNANCE ) kII ytV I POLICY NUI/PLR JVP@O/YYYY� MnivL'Yyni A 6[NFNAL LIARILRY �r� LI"Ir5 ;AJH r`i NGE LI GJU O)U X, LWdrdtltCNLffNfR.a [IAULLd'( „ LIAI•aCL rrNiiO _ I_ vRfnR g ( e n.n_.el 5 DlJ P,LAIII- AIACIC- x IOCL'Ia: I -` 92-CT-R982-9 (if1512014 _900 rdrel xv - - r S.nl)o -- — PEP!0NAt Y. 3G')INJUNY t ^.OLTd,0O0 ' -- C•4NIINgL Ai;f:Rf.fdTr I y <,(tj9,e'JU Li£rl'L n.;�Rrl)tirE LVUII P.PPLtCS Pf.R JI ItV 1 iU L L��. _ AUTOILGe1Lr LIAHIL1fY I 11 1 - pRr,CI:GTc;.gpnl�I(.I'4(lO. 3 c!}�L'.UJU ` Bu in Prapurly s ID.OW IIN�Ty Ll fr JIILJI IF.V S ,N\AIJIQ 1 J MEG 1U IIOD Y IMtIIIt Sr ,Gl AUlull _tU AUTJS I IUS 1 - L'UPILY U41IPY II raK _'I , - 1 NfN1 nWNpn uaLrn Harr � /,uT•lz I � � T i.. v u v r,'i - I • UU"Yk,LLA LAS I _ I fUli L Cfl r J 23{-NCf y I IXCG6S 11AN __ _I uto . P Tr 4TNJN6 NDRNf NS COMPENSATION W_ I 'ilL T'nb AND Ct/VLOYERSLIARILITY YIN LA _ JVlty Llr.0 rS _ ,_r R n rrC fffT-h': CYLCIRIVE f P fill tlbI IIAbIR14W LI UfO> _ r I. -A H vCCIi 1 UanA,PIY In kill CL GISCA217, 114KI)YLL S — YII-^IL4iN •`•'-':Flnp=..rJ I F. L'JlSc&-A P':AICY!4,U f. _ ( I _ DESCPoPUONOY OPERATIONSILOCA11U.vSIVEX:CLE+(AllacbeCDUDIIIJ,A0JaAnal Remaws •:cnM:,H, :I n:ero eyyce l: rcrt^M=nr -� - The Cily of 0 Quintal and RIC officers, agents. repfasenlatives, cold VDIUMCOrs are added as addi@Dnal nl9ured as rewdAl, oplioctons and aovllies of or cn behalf of the named insured, porfm Ined under this agreement Angela Guereque, Senior Secretary City of La Quinta, Community Services Department 78-495 Calle Tampico La Quinta, CA 92253 SHOULD ANY OF OIL ABOVE DESCRIBED POLICIES eE CANCELLED BEFCItt, THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCONOANCE WITH THE POLICY PROVISIONS. nvTHUNItrsD arearaEnrm,4L reserved. ACORD 25 (2010106) The ACORD name and logo are registered marks of ACORD ID01,I8G 132340.7 03-01-2012 1 Policy No.: 92 CTR982 9 SECTION II ADDITIONAL INSURED Policy No.: 92 CTR982 9 Named Insured: HUNT, MARIA Additional Insured (include address): THE CITY OF LA QUINTA AND THE OFFICERS, AGENTS, AND REPRESENTATIVES, AND VOLUNTEERS 78495 CALLE TAMPICO LA QUINTA, CA 92253 FE-6609 RE WHO IS AN INSURED, under SECTION II DESIGNATION OF INSURED, is amended to include as an insured the Additional Insured shown above, but only to the extent that liability is imposed on that Additional Insured solely because of your work performed for that Additional Insured shown above. Any insurance provided to the Additional Insured shall only apply with respect to a claim made or a suit brought for damages for which you are provided coverage. The Primary Insurance coverage below applies only when there is an "X" in the box. ® Primary Insurance. The insurance provided to the Additional Insured shown above shall be primary insurance. Any insurance carried by the Additional Insured shall be noncontributory with respect to coverage provided to you. All other policy provisions apply. FE6609 Printed in U.S.A.