HomeMy WebLinkAboutContract 1992 AGREEMENT FOR PURCHASE OF ARTWORK
BY AND BETWEEN
THE CITY OF CATHEDRAL CITY
AND
KAREN RILEY
This Agreement("Agreement") is entered into as of this 30 day of June 30,2022("Effective
Date")by and between the City of CathedralyAtyera California Charter("City"),and KAREN
RILEY or company legal name: ,a sole proprietor, limited
liability company(LLC),or corporation(circle one)( Artist"). City and Artist are sometimes
hereinafter individually referred to as"Party"and hereinafter collectively referred to as the
"Parties."
WHEREAS, Artist has been selected pursuant to procedures adopted by the City of
Cathedral City to produce and provide to City one or more of their own original paintings as
specified and approved by City's Public Art's Commission,as indicated in the renderings attached
to this Agreement as Exhibit"A" (hereinafter referred to as the "Work"), and on such terms and
conditions as set forth in this Agreement.
WHEREAS, Artist acknowledges and agrees that City will keep the Work as its own and
sole possession and will also transfer the image of the Work onto ceramic tries for placement and
installation on City's Ophelia Bringas Bridge.
NOW, THEREFORE, in consideration of the mutual promises and agreements made by
the Parties and contained herein and for other consideration,the value and adequacy of which are
hereby acknowledged,the Parties agree as follows:
SECTION 1. GENERAL SCOPE OF WORK
Subject to the terms and conditions set forth in this Agreement,Artist shall:
A. In accordance with the schedule set forth in Exhibit B,purchase on Artist's account
all labor, supplies, materials and equipment required to produce and provide the
Work to the City.
B. Artist agrees that City through its Public Arts Commission and/or City Council shall
have final approval authority over such Work and may direct Artist to make changes
to the Work,prior to acceptance by City.
C. Artist shall not commence performance of any of the services identified in Section
1, subsection A until receiving a written"Notice to Proceed"from the City.
D. City shall be solely responsible for transfer of the Work to ceramic tiles,installation
of such tiles on the Bridge and for maintenance of the tiles thereafter. City owes
no duty to Artist to maintain the tiles in any particular state or measured by any
particular standard of care.
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SECTION 2. TERM
The term of this Agreement shall begin as of the effective date until the Work has been delivered
to and accepted by City and the image of the Art has been successfully transferred to the ceramic
tiles. Certain of the obligations set forth in this Agreement shall survive the termination and/or
expiration of the term.
SECTION 3. COMPENSATION
A. City agrees to pay Artist one thousand two hundred dollars and no cents($1,200.00)
per completed and accepted Work. Payment shall be made as set forth in Exhibit
C. The Parties understand that the total compensation for all services, deliverables
and travel in this Agreement shall not exceed the above stated amount.
B. No payment shall be made if Artist is in default of this Agreement or if any phase
or portion of the Art is not completed to the satisfaction of the City. City shall have
sole discretion to determine whether the Art as specified in Exhibits A and B is to
the satisfaction of the City.
SECTION 4. ARTIST WARRANTIES
A. Repair of Work. Artist agrees and warrants that, until the Work is successfully
transferred to ceramic tiles to the satisfaction of City, Artist shall repair or replace,
as is determined necessary by City, and to the reasonable satisfaction of City, the
Work which has been damaged,injured or otherwise adversely affected by the acts
or omissions of Artist, Artist's agents, contractors, or employees. Artist shall be
solely responsible for all expenses and costs which may be necessary to comply
with the requirements of this paragraph, and City shall have no responsibility or
liability, therefore. If the Work has been damaged, injured or otherwise adversely
affected by the acts or omissions of City, its agents, contractors or employees, or
by the acts or omissions of a third party,Artist agrees to repair or replace the ART,
but City shall pay Artist an amount of additional compensation to be mutually
agreed upon by the City and Artist, to which Artist will not unreasonably refuse to
agree.
B. Originality of Work. Artist warrants that the Work is original and is solely the
product of Artist's own creative efforts and does not infringe the rights, including
copyrights, of any person or entity. Artist also warrants that, unless otherwise
stipulated in writing, the Work is original, that it is an edition of one (1), and that
Artist shall not sell, license, perform or reproduce a substantially similar copy of
the Work without the prior written consent of City. However, nothing contained
herein shall prevent the Artist from creating future works in their style and manner
of working.
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C. Work Free from Defects. Artist shall warrant and maintain the Work free from all
faults or defects related to material or workmanship for a period of one year after
the Work is accepted by City.
D. Compliance with all Laws. Artist agrees to produce and provide the Work in
conformance with all applicable laws. Specifically, and without limitation, Artist
is fully aware of the provisions of Labor Code section 1720 et seq. regarding
payment of prevailing wages in connection with public works, and Artist shall
comply with such laws, as applicable. Artist's execution of this Agreement is an
acknowledgment that it has had the opportunity to obtain independent legal advice
and counsel in this regard prior to executing this Agreement. Neither the City nor
any of its employees, agents, or representatives have rendered opinions to Artist
respecting the applicability of Labor Code section 1720 et seq. to the Work
or installation thereof, and Artist has not relied on any such representation in
entering into this Agreement. In the event any claim of any kind or nature based
on Labor Code section 1720 et seq. (including section 1781) is brought or made
against the City in connection with this Agreement, the Work, or its installation,
Artist shall defend, indemnify, and hold harmless the City with respect to such
claim in accordance with Section 9,below.
SECTION 5. TRANSFER OF TITLE
Title to the Work shall remain with the Artist until the City has accepted the Work as delivered to
an accepted by City. When City has so accepted, title shall transfer to City. Artist shall bear all
risk of loss of the Work until title has been transferred to the City. City agrees to inspect work and
accept Work within thirty(30)days of Artist's notification of completion,subject to the provisions
in Section 7.
SECTION 6. PERFORMANCE MADE IMPOSSIBLE
In the event it shall become impossible for artist to complete the Work because of illness or injury,
this Agreement may be terminated at the sole discretion of City, and in such event, all completed
work, materials and supplies related to the Work shall be delivered to City and shall, along with
the Proposal, become City's sole property. City shall thereafter have no obligation to make any
additional or further payments to Artist,and Artist shall have no further or additional claims against
City with respect to the Work or such portion thereof as may be completed, or the Proposal, or
with respect to any matter whatsoever pertaining to, affected by or embodied in this Agreement.
In the event of such termination, City may take such action as may appear to it appropriate under
the circumstances, including,without limitation of the generality of the foregoing, commissioning
another artist to complete the Work. In the event that City completes the Work or arranges to have
it completed, Artist's name shall be publicly displayed at, on or near the Work, unless Artist and
City mutually agree otherwise.
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SECTION 7. ACCEPTANCE OF WORK
A. City agrees to accept the completed Work unless the Work was not completed in
conformance with the Proposal or the Specification and to the City's satisfaction or
unless City has directed changes to the Work prior to acceptance.
B. Upon the City's refusal to accept the Work for the reasons stated in subsection A
above, City shall have the right to (1)request that Artist correct the deficiencies in
the Work within a reasonable time, or(2)terminate this Agreement and recover all
sums previously paid to Artist. Both remedies shall be independent and cumulative
and in addition to any other remedy available to the City at law or equity.
Enforcement of one such remedy shall not be exclusive, nor shall it be deemed an
election of such remedy to the exclusion of any other or further remedy.
C. No payment to Artist shall be deemed as a waiver of City's right to refuse to accept
the Work.
SECTION 8. ARTIST PAYMENT OF CONTRACTORS AND EMPLOYEES
In the event Artist hires or contracts with employees, subcontractors, or material suppliers,
Artist shall pay these employees, subcontractors, or material suppliers out of the payments made
to Artist by City for completion of the phase of work for which the employees, subcontractors, or
material suppliers provided labor or materials and provide proof of payment to the City prior to
completion of the next phase of work. In the case of nonpayment of wages or other amounts due
the employees, subcontractors, or material suppliers herein, City may withhold from Artist out of
payments due a sum sufficient to pay such persons the amounts owed by Artist absent evidence
satisfactory to the City of a legal basis for such nonpayment. All subcontractors shall be properly
licensed pursuant to the Contractors State License Law (Bus. and Prof. Code §§ 7000 et seq.).
Before performing any work, each subcontractor shall provide to the City and Artist evidence that
the subcontractor has workers' compensation insurance coverage.
SECTION 9. INDEMNITY
To the fullest extent permitted by law, the Parties shall defend, indemnify, and hold
harmless each other and their respective officers, elected officials, employees, agents, and
volunteers (collectively "Indemnitees") from and against any and all claims, loss, cost, damage,
injury, expense and liability of every kind, nature and description (including, without limitation,
fines, penalties, incidental and consequential damages, reasonable court costs and attorneys' fees,
litigation expenses and fees of expert consultants or expert witnesses incurred in connection
therewith, and costs of investigation), where the same arise out of, are a consequence of, or are in
any way attributable to, in whole or in part, the performance of this Agreement by the Parties.
Neither termination of this Agreement nor completion of the services shall release the Parties from
their obligations under this Agreement, as long as the event giving rise to the claim, loss, cost,
damage, injury, expense or liability occurred prior to the effective date of any such termination or
completion.
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SECTION 10. PROPERTY OF THE CITY
It is mutually agreed that the Work, and all materials and components prepared by Artist related
thereto under this Agreement, shall become the property of City, and Artist shall have no property
right therein whatsoever. Immediately upon termination and/or completion of this Agreement,
City shall be entitled to, and Artist shall deliver to City, reports, investigations, appraisals,
inventories, studies, analyses, drawings and data estimates performed to that date, whether
completed or not, and other such materials as may have been prepared or accumulated to date by
Artist in performing this Agreement which is not Artist's privileged information, as defined by
law, or Artist's personnel information, along with all other property belonging exclusively to City
which is in Artist's possession. Publication of any information derived from work performed or
data obtained in connection with services rendered under this Agreement must be approved in
writing by City. Additionally,it is agreed that the Parties intend this to be an agreement for services
and each considers the products and results of the services to be rendered by Artist hereunder to
be work made for hire. Artist acknowledges and agrees that the Work (and all rights therein,
including,without limitation, copyright)belongs to and shall be the sole and exclusive property of
City without restriction or limitation upon its use or dissemination by City,including reproduction,
licensing, or sale of the Work in any form or medium, and Artist shall have not right to
compensation for such use.
SECTION 11. INSURANCE
Artist shall provide and maintain insurance, acceptable to the City, in full force and effect
throughout the term of this Agreement, against claims for injuries to persons or damages to
property which may arise from or in connection with the performance of the Services by Artist,its
agents, representatives or employees. Artist shall procure and maintain the following scope and
limits of insurance: Commercial General Liability(CGL)written on an occurrence basis to protect
Artist and City against liability or claims of liability which may arise out of this Agreement in the
amount of one million dollars ($1,000,000) per occurrence and subject to an annual aggregate of
two million dollars ($2,000,000). There shall be no endorsement or modification of the CGL
limiting the scope of coverage for either insured vs. additional insured claims or contractual
liability. All defense costs shall be outside the limits of the policy the insurance policies and made
a part of this Agreement. All insurance policies shall be subject to approval by City as to form and
content. These requirements are subject to amendment or waiver, if so approved in writing by the
City Manager. Artist agrees to deposit with City,at or before the effective date of this Agreement,
certificates of insurance necessary to satisfy City that the insurance provisions of this contract have
been complied with. The certificates and endorsements are to be signed by a person authorized by
that insurer to bind coverage on its behalf. City shall be named as the Additional Insured and
reserves the right to inspect complete, certified copies of all required insurance policies, at any
time.
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SECTION 12. WAIVER OF VARA AND CAPA RIGHTS
To the fullest extent permitted by law,Artist waives any and all rights Artist may have with respect
to the Work under the federal Visual Artists Rights Act of 1990 (17 U.S.C. §§ 106A and 113(d)),
the California Art Preservation Act (Cal. Civ. Code §§ 987 et seq.), and any other local, state,
federal or international laws that convey rights of the same nature as those conveyed under 17
U.S.C. § 106A, Cal. Civ. Code §§ 987 et seq., or any other type of moral right protecting the
integrity of works of art.
SECTION 13. LOCATION OF WORK
The final location of the Work shall be solely determined by the City. City shall have the right,in
the exercise of its sole discretion, to remove or relocate the Work, and any likeness of the Work,
without
SECTION 14. EXCUSE FROM PERFORMANCE
A. In the event Artist's performance of any of his obligations or undertakings under
this Agreement is delayed, interrupted, or prevented by an act of God, unforeseen
conditions,unusually severe weather,or occurrences that are beyond the reasonable
control of either party to this Agreement, Artist shall be excused from any further
performance for whatever period of time after the occurrence necessary to remedy
the effects of that occurrence. Artist shall notify City in writing within ten (10)
days after any occurrence described in this section that may delay Artist
performance. City shall amend the Schedule when, in its determination, Artist's
performance has been excused, and the delay or interruption has resulted in a
material change in the time for performance.
B. In the event that the installation site has not been adequately prepared for receipt of
the Work as scheduled,or delivery or installation is delayed due to a material failure
on the part of the City or its subcontractors, then the City shall promptly act to
address the problem(s) identified by Artist. In such events, timelines for
performance by Artist shall be extended as needed,provided,that none of the delays
are caused in whole or in part
by Artist. Site preparation by City shall not include site measurements,which shall
be the sole responsibility of Artist.
SECTION 15. TERM; SUSPENSION; TERMINATION
A. This Agreement shall become effective on the date as first ascribed above and shall
continue in effect until both parties have fully performed their respective
obligations under this Agreement,unless sooner terminated, as provided herein.
B. City shall have the right at any time to temporarily suspend Artist's performance
hereunder,in whole or in part,by giving a written notice of suspension to Artist. If
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City gives such notice of suspension,Artist shall immediately suspend its activities
under this Agreement, as specified in such notice.
C. City shall have the right to terminate this Agreement at any time by giving a 30
days written notice of termination to Artist. If City gives such notice of termination,
Artist shall immediately cease rendering services pursuant to this Agreement.
D. City shall pay Artist the reasonable value of services rendered by Artist prior to
termination, provided, however, City shall not in any manner be liable for lost
profits that might have been made by Artist had the Agreement not been terminated.
In this regard, Artist shall furnish such financial information as in the judgment of
the City is necessary for City to determine the reasonable value of the services
rendered by the Artist. This shall not affect any right or remedy that City may have
in law or equity.
SECTION 16. INDEPENDENT CONTRACTOR
In the performance of Artist's obligations set forth in this Agreement, it is expressly understood
that Artist, including Artist's agents, servants, employees and subcontractors, is an independent
contractor solely responsible for its acts and omissions, and Artist shall not be considered an
employee or agent of the City for any purpose.
SECTION 17. ASSIGNMENT
Service Provider shall not assign, delegate, or transfer any interest in this Agreement nor the
performance of any Service Provider's obligations hereunder,without the prior written consent of
the City.
SECTION 18. NOTICES
All notices and other communications required or permitted to be given hereunder shall be in
writing and shall be sent by: (a) certified or registered mail, postage prepaid, return receipt
requested, (b) personal delivery, or (c) a recognized overnight carrier that provides proof of
delivery,and shall be addressed as follows:
If to City: If to Artist: .
City of Cathedral City ,
Attn: City Manager 2((JOL� 4 , `i-I
68700 Avenida Lalo Guerrero
Cathedral City,California 92234Ca5.14outiai (/t-��
Notices shall be deemed effective upon receipt or rejection only.
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SECTION 19. LAW TO GOVERN; VENUE
This Agreement shall be governed by the laws of the State of California. In the event of litigation
between the Parties,venue in state trial courts shall take place in the Superior Court of the State of
California for the County of Riverside, or if in federal court the United States District Court for
the Central District of California, Eastern Division.
SECTION 20. AMENDMENT
Any amendment to this Agreement will be effective only if it is in writing signed by all Parties to
this Agreement.
SECTION 21. WAIVER
Waiver of a breach or default under this Agreement shall not constitute a continuing waiver
of a subsequent breach of the same or any other provision under this Agreement.
SECTION 22. SEVERABILITY
If any term,condition or covenant of this Agreement is declared or determined by any court
of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this
Agreement shall not be affected thereby and the Agreement shall be read and construed without
the invalid, void or unenforceable provision(s).
SECTION 23. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the Parties with respect to the matters
set forth herein. Any amendments,modifications,or changes to this Agreement shall be in writing
and signed by both Parties.
[Signatures on Following Page]
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ARTIST:
By:
(Sign name above)
PRINT NAME : KAREN RILEY
TITLE OR CAPACITY:
DATE:
CITY OF CATHEDRAL CITY
By:
Charles P. McClendon,City Manager
Approved as to form:
BURKE, WILLIAMS & SORENSEN, LLP
By:
Eric S.Vail
City Attorney
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EXHIBIT A
SPECIFICATION/RENDERING OF WORK
Artist: KAREN RILEY
Address:
z taititC �rca ex(---tj
12Z3
Contact Phone:
qigti —6)
Title of Artwork:
Medium or material:
• Acrylic on stretched canvas
Date and place completed:
Collaborating artist(s),if applicable:
•
Maker(s)other than Artist(fabricators,technicians,etc.),if applicable: (Include names,addresses,phone numbers
and element worked on.)
• May not apply
Dimensions: (Measure in both inches and centimeters;record height first,then width,then depth if needed or diameter;
if a work is irregular or circular in shape,state as such in parenthesis;if work involves multiple pieces,measure the
significant parts as well as the whole;measure the work separately from the frame or pedestal;include the dimensions
of the frame or pedestal.)
• 36 inches by 36 inches
Materials used in execution of artwork:
• Acrylic on stretched canvas
• List any specifics here:(e.g.brand of acrylic and canvas,etc.,)
Technique or construction methods used in the execution of the Artwork: (Attach fabrication drawings,if necessary.)
•
Material finish on the Artwork: (Glaze,paint color and type,sanding,grit,tool pattern,surface sealer,etc.)
• N/A.Artist is providing the City the finished painting on canvas.City will manage rest of the process.
[RENDERINGS ATTACHED ON THE FOLLOWING PAGE]
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EXHIBIT B"
SCHEDULE OF PERFORMANCE
• Performance of work will be directed as needed by PAC Chairperson Dee Ann
Hopings and Vice Chair Piper Scott
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EXHIBIT C
COMPENSATION
A. PAYMENT—FOLLOWING FINAL ACCEPTANCE
Upon completion, deliver and acceptance of the Work by the City,Artist may invoice City
for a final payment of one thousand two hundred dollars and no cents ($1,200.00). In the case of
the Artist being requested by the City to create more than one Work, upon completion and
acceptance of each Work the Artist may separately invoice the City for said Work.
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