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HomeMy WebLinkAbout23P193 - THE PILLARS OF PS EQUALITY, THE PURCHASE & SALE OF PUBLIC ARTWORKCONTRACT ABSTRACT Contract/Amendment Name of Contract: Company Name: Company Contact: Email: Summary of Services: Contract Price: Contract Term: Public Integrity/ Business Disclosure Forms: Contract Administration Lead Department: Contract Administrator/ Ext: Contract Approvals Council/City Manager Approval Date: Agreement Number: Amendment Number: Contract Compliance Exhibits: Insurance: Routed By: Bonds: Business License: Sole Source Co-Op CoOp Agmt #: Sole Source Documents: CoOp Name: CoOp Pricing: By: Submitted on: Contract Abstract Form Rev 8.16.23 Authorized Signers: Name, Email (Corporations require 2 signatures) Purchase & Sale of Public Artwork-The Pillars of PS-EQUALITY Scott Froschauer dba Big Show Industries, Inc. Scott Froschauer sf@scottfroschauer.com Purchase & Sale of Public Artwork-The Pillars of PS-Equality $50,000 October 1, 2023 through April 15, 2024 Yes Scott Froschauer, sf@scottfroschauer.com Scott Froschauer, sf@scottfroschauer.com Community & Economic Development Jay Virata 09/26/2023 23P193 N/A Yes Yes Yes Procurement N/A No Solicitation-Call For Artists-The Pillars of Palm Springs N/A N/A N/A 8/24/2023 Brian Sotak-Rossman DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person)$ OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH- STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. 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(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 10/5/2023 (805) 537-0147 70147 10200 Big Show Industries, Inc. 10401 Tuxford Sun Valley, CA 91352 A 1,000,000 US UEN 2778043.22 12/3/2022 12/3/2023 1,000,000 10,000 1,000,000 2,000,000 2,000,000 1,000,000A US UEN 2778043.22 12/3/2022 12/3/2023 HAPD/$125K/ACV/ MAX *HAPD Deds 1,500 A Misc Owned/Rented EQ US UEN 2778043.22 12/3/2022 Limit 350,000 A Special Form/RC US UEN 2778043.22 12/3/2022 12/3/2023 Deductible 1,000 The City of Palm Springs, its officials, employees, and agents are included as Additional Insured and/or Loss Payee with respect to General Liability as required by written contract or agreement but only as respects losses arising from the operations of the Named Insured per attached form(s). General Waiver of Subrogation applies to General Liability in favor of Certificate Holder(s) per ENT P4000 CW (3/15). Should the above policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named. City of Palm Springs Attention: City Manager / City Clerk 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 BIGSHOW-01 ERICHBROUHARD NFP Property & Casualty Services, Inc. 2450 Tapo Street Simi Valley, CA 93063 Jena Serranzana jena.serranzana@nfp.com Hiscox Insurance Company Inc. 12/3/2023 X X X X X X DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C FORM NUMBER: EFFECTIVE DATE: The ACORD name and logo are registered marks of ACORD ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE FORM TITLE: Page of THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, ACORD 101 (2008/01) AGENCY CUSTOMER ID: LOC #: AGENCY NAMED INSURED POLICY NUMBER CARRIER NAIC CODE © 2008 ACORD CORPORATION. All rights reserved. NFP Property & Casualty Services, Inc. BIGSHOW-01 SEE PAGE 1 1 SEE PAGE 1 ACORD 25 Certificate of Liability Insurance 2 SEE P 1 Big Show Industries, Inc. 10401 Tuxford Sun Valley, CA 91352 Los Angeles SEE PAGE 1 ERICHBROUHARD 1 CONTRACTUAL INSURANCE REQUIREMENTS The attached Certificate of Insurance is provided as part of our service to our client, the Insured. If special endorsements have been provided, they also are indicated attached. You may find that these documents do not comply with all the terms and conditions of the underlying contract between the Certificate Holder and the Insured due to the insurance company’s insuring conditions, limitations, exclusions and other terms. If you have any questions, please contact the undersigned. NFP Property & Casualty Insurance Services, Inc. CA LICENSE #0F15715 2450 TAPO ST SIMI VALLEY, CA 93063 TELEPHONE: (805) 579-1900 FAX: (805) 579-1916 DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Includes copyrighted material of Insurance Services Office, Inc., with its permission. EGL E4310 CW (03/15) Blanket Additional Insured Endorsement In consideration of the premium charged and on the understanding that all other terms, conditions and exclusions remain unchanged, it is agreed that this endorsement modifies only the terms and conditions of the Coverage Part(s) listed below: COMMERCIAL GENERAL LIABILITY COVERAGE PART Name of Person or Organization (Additional Insured) I.It is agreed that WHO IS COVERED is amended to include the following: A. Any person or organization from whom you lease a premises, and with whom you have agreed through a written or oral contract to provide insurance as afforded by this Coverage Part, are added as additional insureds. However: 1. this insurance applies to such additional insured only to the extent of liability arising out of the ownership, maintenance or use of that particular part of such premises leased to you in your on-going operations; and 2. if coverage provided to the additional insured is required by contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement or that which you would have been entitled to coverage under this Coverage Part, whichever is less. This insurance does not apply to: 1. any occurrence that takes place after you cease to be a tenant in the premises or the end of the policy period, whichever comes first; 2. structural alterations, new construction or demolition operations performed by or on behalf of the additional insured; or 3.bodily injury,property damage or personal and advertising injury arising out of the sole negligence of the additional insured. B. Any person or organization from whom you lease equipment or props, sets and wardrobe, and with whom you have agreed through a written or oral contract to provide insurance as afforded by this Coverage Part, are added as an additional insured. However: 1. this insurance applies to such additional insured only to the extent of their liability arising out of the maintenance, operation or use by you or anyone on your behalf of the equipment or props, sets and wardrobe in the performance of your on-going operations; and 2. if coverage provided to the additional insured is required by contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement or that which you would have been entitled to coverage under this Coverage Part, whichever is less. This insurance does not apply to: 1. any occurrence that takes place after the equipment or props, sets and wardrobe rental agreement/lease expires or the end of the policy period, whichever comes first; or 2.bodily injury,property damage or personal and advertising injury arising out of the sole negligence of the additional insured. C. Any: 1. financial institution or any entity that has a financial interest in your business; Page of1 2 tions and exclusions remai DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Includes copyrighted material of Insurance Services Office, Inc., with its permission. EGL E4310 CW (03/15) 2. State, Municipality or other Political Subdivision; 3. payroll service; 4. advertising agency and/or advertiser; or 5. distributor for whom you are contractually obligated to provide insurance as afforded by this Coverage Part, are added as insureds. However: 1. if coverage provided to the additional insured is required by contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement or that which you would have been entitled to coverage under this Coverage Part, whichever is less. 2. this insurance does not apply to bodily injury,property damage or personal and advertising injury arising out of the sole negligence of the additional insured. In the case of oral agreements, the agreement must also be evidenced by a certificate of insurance issued for you by us or on our behalf. II.For the purposes of coverage provided by this endorsement only, HOW MUCH WE WILL PAY is amended to include the following: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: A. required by the contract or agreement; or B. available under the applicable Limits of Insurance stated in the Declarations; whichever is less. Any payments we make under this endorsement will be a part of and not in addition to the applicable Limits of Insurance stated in the Declarations. The title of the endorsement is solely for ease of reference and forms no part of the terms and conditions of coverage. Page of2 2 DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Additional Insured Person or Organization Special Requirements In consideration of the premium charged and on the understanding that all other terms, conditions and exclusions remain unchanged, it is agreed that this endorsement modifies only the terms and conditions of the Coverage Part(s) listed below: COMMERCIAL GENERAL LIABILITY COVERAGE PART I.It is agreed that WHO IS COVERED is amended to include the person or organization stated in the Schedule above as an additional insured, but only to the extent of such additional insured's liability for bodily injury,property damage or personal and advertising injury caused by your acts or omissions or the acts or omissions of those acting on your behalf: A. in the performance of your on-going operations; or B. in connection with your premises owned by or rented to you. However, if coverage provided to the additional insured is required by a contract or agreement,the insurance affordedto such additional insured will not be broader than that which you are required by the contract or agreement or that which you would have been entitled to under this Coverage Part, whichever is less. This insurance does not apply to bodily injury,property damage or personal and advertising injury arising out of the sole negligence of the additional insured. II.For the purposes of coverage provided by this endorsement only, HOW MUCH WE WILL PAY is amended to include the following: If coverage provided to the additional insured is required by a contract or agreement,the most we will pay on behalf of the additional insured is the amount of insurance: A. required by the contract or agreement; or B. available under the applicable Limits of Insurance stated in the Declarations; whichever is less. Any payments we make under this endorsement will be a part of and not in addition to the applicable Limits of Insurance stated in the Declarations. The title of the endorsement is solely for ease of reference and forms no part of the terms and conditions of coverage. Name of Person or Organization (Additional Insured) Includes copyrighted material of Insurance Services Office, Inc., with its permission. EGL E4317 CW (03/15)Page of1 2 City of Palm Springs Attention: City Manager / City Clerk 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Hiscox Insurance Company Inc. DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Special Wording Requirement of Designated Person or Organization: III.For the purposes of coverage provided by this endorsement only, SPECIAL CONDITIONS is amended as follows: Includes copyrighted material of Insurance Services Office, Inc., with its permission. EGL E4317 CW (03/15)Page of2 2 A. Cancellation - It is agreed that the Cancellation provision under GENERAL CONDITIONS in the Entertainment Policy Jacket is amended as follows: It is agreed that the number of days in part B of the Cancellation provision is amended to 30 days. Hiscox Insurance Company Inc. DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Entertainment policy jacket Policy wording ENT P4000 CW (3/15) – Entertainment Policy Jacket Page 1 of 8 About this policy PLEASE READ THE ENTIRE POLICY CAREFULLY. It is important you understand the full extent of the insureds’and our rights and duties under this Policy and what is and is not covered. Please also check the Declarations to make sure that you have purchased all the Coverage Parts that you require. Please note that all words and phrases that appear in bold type (except headings) have special meaning and are defined, either in the Declarations, the GENERAL DEFINITIONS or the SPECIAL DEFINITIONS applicable to each Coverage Part. Where a word or phrase is defined under the SPECIAL DEFINITIONS of a Coverage Part, the definition in the Coverage Part will govern the coverage provided under that Coverage Part. Where we refer to Production Package throughout this Policy, we are referring collectively to the Cast, Media, Extra Expense, Production Equipment, Props/Sets/Wardrobe, Third Party Property Damage, Production Office Property, Money and Auto Physical Damage Coverage Parts when such Coverage Parts are applicable. Our promise to you The coverage which we provide in this Policy is contained in a number of Coverage Parts. For each Coverage Part you purchase we will make payment when: A.a claim,occurrence or loss falls within WHAT IS COVERED and HOW MUCH WE WILL PAY under that Coverage Part; B.the claim,occurrence or loss is not excluded in whole or in part under either WHAT IS NOT COVERED in that Coverage Part or WHAT IS NOT COVERED in this Entertainment Policy Jacket; and C.you have complied with the requirements set out in any SPECIAL CONDITIONS and YOUR OBLIGATIONS in that Coverage Part and the GENERAL CONDITIONS and YOUR OBLIGATIONS in this Entertainment Policy Jacket. However, we will not make any payment unless we are notified in accordance with WHAT YOU MUST NOTIFY AND WHEN and you have paid the premium.Our obligation to make any payment will be in excess of any applicable deductible. General definitions The following definitions apply to this entire Policy. Any other definitions are stated in the Coverage Part to which they apply. Claim Means any written demand for damages arising out of bodily injury, property damage, personal injury or advertising injury. Damages Means any monetary amount a court or arbitrator orders any insured to pay, including but not limited to pre-judgment interest, post-judgment interest and attorney fees in connection with a claim or suit insured under this Policy. However, this does not include any civil, regulatory or criminal fines, restitution, disgorgement, sanctions, taxes or penalties, including those imposed by any federal, state or local governmental body or any punitive or exemplary damages, unless we have agreed otherwise in HOW MUCH WE WILL PAY in each relevant Coverage Part. Insured Means you and any person or organization qualifying as an insured under WHO IS COVERED in the applicable Coverage Part(s). Occurrence Will have the meaning as defined in each applicable Coverage Part. Policy period Means the period of time stated as the ”policy period” on the Declarations, unless this Policy is cancelled, in which case the ”policy period” ends on the effective date of cancellation. Suit Means a civil proceeding in which damages for bodily injury, property damage, personal injury or advertising injury to which this Policy applies are sought. This includes an arbitration proceeding or any other alternative dispute resolution proceeding in which such damages are claimed and to which any insured submits with our consent. DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Entertainment policy jacket Policy wording ENT P4000 CW (3/15) – Entertainment Policy Jacket Page 2 of 8 We, us and our Means the insurer listed in the Declarations. You and your Means any person or organization stated as an Insured in the Declarations. What you must notify and when The following obligations apply to this entire Policy. Any other obligations are stated in the Coverage Part to which they apply. For a claim against you You must give written notice to us as soon as practicable with full details of any claim,occurrence or loss, including names and addresses of any claimants and witnesses. All such notifications must be in writing and submitted to us via the designated email address or mailing address identified in the Declarations. For a claim for loss or damage to property You must notify us, as detailed in the Declarations, as soon as practicable with details of the loss, including time and place of loss or damage and names and addresses of available witnesses. In the case of debris removal, you must notify us within 180 days of the earlier of: A. The date of the direct physical loss or damage; or B.The end of the policy period. You must also notify the appropriate law enforcement authorities if there is any reason to believe a crime may have been committed or a law may have been broken. Your obligations The following obligations apply to this entire Policy. Any other obligations are stated in the Coverage Part to which they apply. Your duties in the event of a claim against you We will not make any payment under this Policy unless the insureds: A.cooperate with us in the investigation, settlement or defense of any claim or suit; B.promptly forward to us all notices, demands, summonses or other process relating to any claim or suit; C.at our request, help us or our agent: 1. make any settlement; 2.enforce any right of contribution, subrogation or indemnity against any person or organization who may be liable to any insured; 3.defend suits by attending hearings and trials and otherwise assisting and cooperating with the defense; and 4. secure and give evidence and obtain the attendance of witnesses. D.notify us upon the insured’s discovery that products are defective. No insured will, except at their own cost, incur any expenses or voluntarily make any payment, except first aid costs. Nor shall any insured, without our prior written agreement, offer to settle or admit liability. Your duties in the event you make a claim for loss or damage to property We will not make any payment under this Policy unless the insured: A. 1.takes every reasonable step to protect the property from further damage and minimize the insured’s loss; and 2.keeps a record of the insured’s expenses necessary to protect such property for consideration in settlement of the claim. We will pay the insured’s expenses described in 1 and 2 above to the extent the insured loss or damage is reduced, and such payment will be part of and not in addition to the applicable policy limit. B.makes the property available for inspection as often as reasonably required by us. C.files with us, or with our authorized representative, sworn Proof of Loss within 60 days of our request on a form that we provide to the insured. DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Entertainment policy jacket Policy wording ENT P4000 CW (3/15) – Entertainment Policy Jacket Page 3 of 8 D.cooperates fully with us and reasonably assists us throughout the investigation, settlement and handling of any claim. E.furnishes to us within 180 days of our request all records and documents we deem necessary or appropriate to the adjustment of the loss, including without limitation the following: 1.the insured’s financial and accounting procedures, records and reports; 2.estimates, quotations, bills, invoices, vouchers, purchase orders, deeds, liens and related documentation; 3. contracts and agreements; 4. budgets, cost analyses and feasibility reports; 5. edit decision lists, and all applicable digital/HD text files and digital/HD logs; 6. scripts, schedules, reports and other production documents; 7. medical records; 8. police and fire department reports. The insured must not, except at the insured’s own cost, incur any expense or voluntarily make any payment. General conditions The following conditions apply to this entire Policy. Any other conditions are stated in the Coverage Part to which they apply. 1.Abandonment of property The insured may not abandon any covered property to us at any time without our permission. 2.Access to records and examination under oath As often as we reasonably require, the insured(s)will permit us to examine the insured’s books, records and documents and permit us to examine the insured under oath, outside the presence of any other insured, at such times and places as we reasonably require, about any matters relating to this insurance, the claim or the loss. In the event of an examination, the insured’s answers must be signed. To the extent it is within the insured’s power to do so, the insured shall also cause other persons who have information about the insurance, claim,occurrence or loss to submit to examinations under oath. No such examination of books, records or documents or examination under oath, nor any act by us or any of our employees or representatives in connection with the investigation of any claim, occurrence or loss, shall be deemed a waiver of any defense which we might otherwise have with respect to any claim,occurrence or loss, and all such examinations and acts shall be deemed to have been made or done without prejudice to our rights. 3.Action against us No action against us may be brought unless the insured has complied with all of the provisions of this Policy and the action is started within one year after the occurrence causing the loss or damage. Nothing in this Policy gives any person or organization any right to join us as a codefendant in any action against the insured to determine the insured’s liability. 4.Appraisal If we and you disagree on the amount of the loss or damage, either party may make a written request that the amount of the loss or damage be set by appraisal. Where the request is accepted, each party will select a competent and impartial appraiser within 20 days. The two appraisers will select an umpire. If they cannot agree on an umpire within 15 days, either may request that the selection be made by a judge of a court having jurisdiction. Appraisal proceedings are informal unless you and we agree otherwise. ”Informal” means that no formal discovery will be conducted, including depositions, interrogatories, requests for admissions or other forms of formal civil discovery, no formal rules of evidence shall be applied and no court reporter shall be used for the proceedings. The appraisers will state separately the value of the property and the amount of the loss or damage. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding. Each appraiser shall be paid by the party selecting him or her and the expenses of appraisal and the umpire shall be paid by the parties equally. If we agree to submit to an appraisal, we will still have our right to deny the claim. DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Entertainment policy jacket Policy wording ENT P4000 CW (3/15) – Entertainment Policy Jacket Page 4 of 8 5.Assignment and transfers You may not assign or transfer this Policy without our written consent. However, if you die then your rights and duties will be transferred to your legal representatives, but only while acting within the scope of their duties as your legal representatives, or to anyone having temporary custody of your property until your legal representative has been appointed. 6.Audit and examination of your books and records We may examine and audit the insured’s books and records as they relate to this Policy.We may do so at any time during the policy period or within three years after the expiration date. 7.Bankruptcy Bankruptcy or insolvency of you or your estate shall not relieve us of any of our obligations under this Policy. 8.Cancellation The first named insured stated in the Declarations may cancel this Policy by returning the Policy to us or by sending us advance written notice stating when the cancellation is to take effect. We may cancel this Policy by providing the first named insured stated in the Declarations with advance written notice, to the last address known to us, at least: A.10 days before the effective date of cancellation if we cancel for nonpayment of premium; or B.30 days before the effective date of cancellation if we cancel for any other reason. The notice will state the effective date of the cancellation, which ends the policy period. If we cancel the Policy, the premium refund will be computed on a pro-rata basis. If you cancel the Policy, the refund may be less than pro-rata. Premium adjustment will be made as soon as practicable after cancellation; however, the cancellation will be effective even if we have not made or offered a refund. The mailing of a notice is sufficient proof of notice of cancellation. Delivery of notice shall be equivalent to mailing. 9.Changes to your business You must promptly tell us if you materially change your business, if you acquire or merge with another business or if any party acquires your business. We will provide coverage under this policy for such a change only if we have given our written approval and you have agreed to all additional coverage terms and/or additional premium we may request to cover the change in risk. 10. Changes to the policy This Policy contains all of the agreements between you and us concerning the coverage provided. The first named insured stated in the Declarations is authorized to make changes in the terms of this Policy with our consent; however, policy terms can be amended or waived only by endorsement issued by us and made part of this Policy. 11. Compliance by insureds We have no duty to provide coverage under this Policy unless the insured has fully complied with all the terms and conditions of this Policy. 12. Compliance with applicable trade sanctions Coverage provided under this Policy does not apply to the extent that trade or economic sanctions or other laws or regulations prohibit us from providing insurance. 13. Concealment or misrepresentation Coverage provided under this Policy is void if any insured intentionally conceals or misrepresents any material fact or circumstance relating to this insurance or any claim,occurrence or loss submitted for coverage under this Policy at any time, whether before or after a loss. 14.Concurrent cause/ uninsured event If any uninsured event occurs before, concurrently with or after an occurrence and directly or indirectly causes, contributes to or increases a covered loss, then the portion of any such loss contributed to by the uninsured event is not covered. 15.Conformity to state law If any policy provision is in conflict with the applicable law of the state, province or country in which this Policy is issued, the law of the state, province or country will apply. 16.Coverage territory Unless otherwise provided for in a Coverage Part, this insurance applies within the United States, its territories and possessions, Puerto Rico and Canada. 17.Defense for suits against you We have the right and duty to defend any suit against the insured alleging liability for bodily injury, personal injury, advertising injury, or property damage, including property of others in the insured’s care, custody or control, even if the allegations are groundless, false or fraudulent, DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Entertainment policy jacket Policy wording ENT P4000 CW (3/15) – Entertainment Policy Jacket Page 5 of 8 provided that at least some portion of the suit is covered under this Policy. Our duty to defend the insured ends when we have paid the applicable Limit(s) of Insurance. Defense costs will not reduce the applicable Limit(s) of Insurance. We have the right to select and appoint counsel to defend the insured. We may, at our discretion, investigate any occurrence,claim,suit or offense and settle any claim or suit. We and you agree to use reasonable efforts to determine a fair allocation of payments (including defense costs and damages) between portions of claims that are covered and portions that are not covered under the applicable Coverage Parts. If a fair allocation cannot be agreed upon, we and you agree to submit the issue to arbitration to be conducted in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”) in effect at the time of the dispute. While the arbitration is pending,we will be obligated to pay only that portion of the disputed amount that we in good faith believe is properly allocated to us. 18.Due diligence The insured shall use due diligence to avoid or diminish a loss or circumstance that may give rise to loss or damage. Due diligence includes without limitation using best efforts to follow instructions for the use of material or equipment. 19.First named insured The person or organization first named an insured in the Declarations is primarily responsible for payment of all premiums. This insured will act on behalf of all other insureds for the giving and receiving of notice of cancellation or nonrenewal and the receiving of any return premiums that become payable under this Policy. 20.Inadvertent error You will not be prejudiced if you inadvertently mis-identify any of the property, persons or animals insured under this Policy, provided you give us the correct information as soon as practicable after discovery of the error. 21. Inspection and surveys We have the right, but not the obligation, to conduct inspections and surveys of the insured’s property and operations.We may give the insured a report on the conditions that we find and we may recommend changes. The insured has an obligation to cooperate with us and any of our agents who may conduct an inspection or survey on our behalf. Any inspections, surveys, reports or recommendations by us or our agents relate solely to the insured’s insurability and the premiums to be charged. We do not make safety inspections and do not undertake the duty of any person or organization to provide for the health or safety of any person. We do not represent or warrant that conditions are safe or healthful or that conditions comply with laws, regulations, codes or standards. 22. Liberalization If we adopt any revision during the policy period which would broaden the coverage under this Policy without additional premium, such broadened coverage will immediately apply to this Policy effective the date the revision is effective in your state. 23. Loss payment provision A.We will pay for covered loss or damage within 60 days after we receive the sworn Proof of Loss, if the insured has complied with all of the terms of this Policy; and 1.we have reached agreement with the insured on the amount of loss; or 2. an appraisal award has been made. B.We will not pay the insured more than the insured’s financial interest in the covered property. C.We may adjust losses with the owners of lost or damaged covered property if other than the insured. If we pay the owners, such payments will satisfy the insured’s claims against us for the owners’ covered property. We will not pay the owners more than their financial interest in such property. D.We may elect to defend the insured against suits arising from claims of owners of covered property. We will do so at our expense. Property not owned by the insured will be valued on the same basis as property owned by the insured, but we will not pay more than the amount for which the insured is legally liable. In no event shall we pay more than the applicable Limit of Insurance as stated in the Declarations. DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Entertainment policy jacket Policy wording ENT P4000 CW (3/15) – Entertainment Policy Jacket Page 6 of 8 24. No benefit to carrier or bailee No person or organization having custody of insured property will benefit from this insurance other than the insured. 25. Non-Renewal If we decide not to renew this Policy, we will mail or deliver to the first named insured stated in the Declarations written notice of the nonrenewal not less than 60 days before the expiration date. If notice of nonrenewal is mailed, proof of mailing will be sufficient proof of notice. 26. Other insurance If, at the time of the loss, there is other insurance available which would apply in the absence of this Policy, the insurance provided by this Policy will apply as excess insurance over the other insurance whether or not the insured can collect on such other insurance. 27. Premium audit If this Policy is issued on an auditable basis, the estimated premium is based on the exposures that you told us you would have when this Policy began.We will compute the final premium due when we determine your actual exposures. The estimated total premium will be credited against the final premium due and you will be billed for the balance if any. If the estimated total premium exceeds the final premium due, a refund will be issued to the first named insured stated in the Declarations. The first named insured stated in the Declarations is responsible for any additional premium due as a result of an audit. You must keep records of the information we need for premium computation and send us copies at such times as we may request. 28. Recovered property If, after a loss payment by us, any lost or damaged property is recovered by the insured or by us, the party making the recovery must give the other party prompt notice. If any recovered property has a salvage value, we will control the disposition of such salvage. When property is recovered, the insured may either keep the recovered property and return the applicable payment to us or keep the payment and we will keep the recovered property. If any recovered property the insured chooses to keep is in need of repair at the time of recovery, we will pay for the repairs subject to the applicable Limit of Insurance stated in the Declarations and any Basis of Settlement provisions. If any recovered property has salvage value, all amounts recovered by us shall first be applied to the amount that we have paid to the insured with respect to the claim, next to our costs of recovery, including our attorney’s fees, and then to reimburse the insured for the insured’s deductible amount and any uninsured amounts the insured may have incurred. We will determine the amount of loss or damage on the basis on which it would have been settled had the amount of recovery been known at the time the loss was originally determined. 29. Representations By acceptance of this Policy, you agree that any application form, and any representations and statements made to us by you or by anyone on your behalf are true, accurate and complete, and that we have relied upon such information in issuing this Policy. The application form will be deemed part of the Policy. If we determine that such information or any materials submitted in support thereof were untrue, inaccurate, or misleading in any material respect, then we are entitled to rescind any relevant Coverage Part. 30. Subrogation Upon payment for any loss under this Policy, the insured’s rights to recover for the loss from any person or entity shall be transferred to us to the extent of our payment, regardless of whether the insured has fully recovered or been made whole for the loss. The insured must do nothing after loss to impair such rights. At our request, the insured will bring suit against the persons or entities responsible for the loss or we may bring suit in the insured’s name or as the insured’s assignee. All amounts recovered by us or by the insured from any such person or entity shall first be applied to reimburse us for the amount that we have paid to the insured with respect to the claim, next to our cost of recovery, including our attorney fees, and only then to the insured for the insured’s deductible amount and any uninsured amounts the insured may have incurred or any portion of the loss for which the insured has not been made whole. We will waive the right of recovery we would otherwise have had against another individual or entity only if the insured has waived the insured’s right of recovery against such individual or entity in a written contract or agreement that is fully executed before the loss. DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Entertainment policy jacket Policy wording ENT P4000 CW (3/15) – Entertainment Policy Jacket Page 7 of 8 31.Two or more coverage parts or policies issued by us If one Coverage Part and any other Coverage Part or Policy issued to you by us applies to the same damaged or destroyed property, claim,occurrence or loss or to any liability for the same damages, we will pay no more than the single highest Limit of Insurance of such applicable Coverage Parts or Policy. However, if a single occurrence results in different claims or losses which trigger more than one Coverage Part, then we will pay up to the full Limit of Insurance of the applicable Coverage Part for each covered claim or loss. General policy exclusions Unless expressly stated otherwise in the individual Coverage Parts, we will not make payment for any claim, loss or damages directly or indirectly arising out of or due to any: Asbestos mining, processing, manufacturing, use, testing, ownership, sale or removal of asbestos, asbestos fibers or material containing asbestos; or exposure to asbestos, asbestos fibers or materials containing asbestos; or the provision of instructions, recommendations, notices, warnings supervision or advice given, or which should have been given, in connections with asbestos, asbestos fibers or structures or materials containing asbestos; Biochemical malicious use of any biological or chemical agent, material, device or weapon; Breach of contract liability arising solely as the result of or from any breach of any written, oral, express or implied contract or warranty; Dishonest acts criminal, fraudulent, dishonest or illegal acts, committed alone or in collusion with others, by: A.the insured; B. others who have any interest in any covered property; C.others to whom the insured entrusts covered property, including but not limited to, owners/operators that the insured has hired, other than common carriers; D.the insured’s partners, members, managers, officers, directors, trustees or joint venturers; or E.the employees or agents of persons in categories A through D above, whether or not they are at work. However, this exclusion does not apply to acts of vandalism; Insects or animals nesting, infestation, discharge or release of waste products or secretions by insects, birds, rodents or other animals; Nuclear hazards A. The explosion of any weapon employing atomic fission or fusion; or B.Nuclear reaction, radiation, or radioactive contamination, however such nuclear reaction, radiation or radioactive contamination may have been caused. However, this exclusion does not apply to ensuing loss or damage caused by or resulting from fire. Such coverage for fire applies only: A. to direct loss or damage by fire to covered property; and B.if the fire would be covered under this Policy and there is a law in effect in the jurisdiction where the loss or damage occurs that expressly prohibits us from excluding such ensuing loss or damage; Silica actual or threatened exposure to, inhalation of or contact with Silica. As used in this exclusion, the term Silica includes but is not limited to silicon dioxide, silica products, silica fibers, silica dust, any silica byproducts and silica, whether alone or in combination with any substance, product or material. This exclusion applies to every injury, damage, loss, cost or expense otherwise covered by this Policy, if any; War and military action A.War, including undeclared or civil war, invasion, act of foreign enemies or hostilities (whether war be declared or not); DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Entertainment policy jacket Policy wording ENT P4000 CW (3/15) – Entertainment Policy Jacket Page 8 of 8 B.Warlike action by a military force, including action in hindering or defending against an actual or expected attack, by any government, sovereign or other authority using military personnel or other agents; C.Insurrection, rebellion, revolution, usurped power or action taken by a governmental authority hindering or defending against any of these. This exclusion also applies to loss, damage or expenses caused by or in connection with any action taken to prevent, defend or minimize an act or threat of an act described in A through C above; Wear and tear wear and tear, gradual deterioration, wet or dry rot, decay, rust or corrosion. DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Additional Insured Person or Organization Special Requirements In consideration of the premium charged and on the understanding that all other terms, conditions and exclusions remain unchanged, it is agreed that this endorsement modifies only the terms and conditions of the Coverage Part(s) listed below: COMMERCIAL GENERAL LIABILITY COVERAGE PART I.It is agreed that WHO IS COVERED is amended to include the person or organization stated in the Schedule above as an additional insured, but only to the extent of such additional insured's liability for bodily injury,property damage or personal and advertising injury caused by your acts or omissions or the acts or omissions of those acting on your behalf: A. in the performance of your on-going operations; or B. in connection with your premises owned by or rented to you. However, if coverage provided to the additional insured is required by a contract or agreement,the insurance affordedto such additional insured will not be broader than that which you are required by the contract or agreement or that which you would have been entitled to under this Coverage Part, whichever is less. This insurance does not apply to bodily injury,property damage or personal and advertising injury arising out of the sole negligence of the additional insured. II.For the purposes of coverage provided by this endorsement only, HOW MUCH WE WILL PAY is amended to include the following: If coverage provided to the additional insured is required by a contract or agreement,the most we will pay on behalf of the additional insured is the amount of insurance: A. required by the contract or agreement; or B. available under the applicable Limits of Insurance stated in the Declarations; whichever is less. Any payments we make under this endorsement will be a part of and not in addition to the applicable Limits of Insurance stated in the Declarations. The title of the endorsement is solely for ease of reference and forms no part of the terms and conditions of coverage. Name of Person or Organization (Additional Insured) Includes copyrighted material of Insurance Services Office, Inc., with its permission. EGL E4317 CW (03/15)Page of1 2 City of Palm Springs Attention: City Manager / City Clerk 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Hiscox Insurance Company Inc. DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Special Wording Requirement of Designated Person or Organization: III.For the purposes of coverage provided by this endorsement only, SPECIAL CONDITIONS is amended as follows: Includes copyrighted material of Insurance Services Office, Inc., with its permission. EGL E4317 CW (03/15)Page of2 2 A. Cancellation - It is agreed that the Cancellation provision under GENERAL CONDITIONS in the Entertainment Policy Jacket is amended as follows: It is agreed that the number of days in part B of the Cancellation provision is amended to 30 days. Hiscox Insurance Company Inc. DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Revised 4.13.23 Page 1 of 15 PURCHASE AND SALE OF PUBLIC ARTWORK AGREEMENT 23P193 THE PILLARS OF PALM SPRINGS – EQUALITY THIS AGREEMENT FOR PURCHASE AND SALE OF PUBLIC ARTWORK (“Agreement”) is made and entered into on October 1, 2023, by and between the CITY OF PALM SPRINGS, a California charter city and municipal corporation (“City”), and SCOTT FROSCHAUER DBA BIG SHOW INDUSTRIES, INC (“Artist”). RECITALS A.Pursuant to Municipal Ordinance No. 1479, City established the Public Arts Commission (“Commission”) and an Art in Public Places Program (“Program”). NOW, THEREFORE, City and Artist, for the consideration and under the conditions hereinafter set forth, and pursuant to the authority, terms, and conditions set forth in Municipal Ordinance No. 1479, and as outlined on Exhibit A Scope of Work and Pricing and Exhibit B Insurance Requirements agree as follows: AGREEMENT 1.Ownership of Documents, Models. All studies, drawings, designs, and models prepared and submitted by Artist to City relative to this Agreement shall become the property of City. City agrees not to reuse such studies, drawings, and models for the purpose of constructing a full- sized duplicate of the Artwork. 2.Payment. As consideration for the Artwork, City shall pay Artist a total of $50,000.00 from Public Art Program funds. 3.Artist’s Rights; City’s Ownership Rights. 3.1 Alterations. The City, pursuant to its governmental and proprietary responsibilities, intends to display the Artwork at the Site as originally created by Artist and to maintain the Artwork in good condition. The City will preserve complete flexibility to operate and manage the Artwork in the public’s interest. Therefore, City retains the absolute right to alter the Artwork in City’s sole judgment. For example, City may alter the Artwork to eliminate hazard, to comply with the ADA, to otherwise aid City in the management of its property and affairs, or through neglect or accident. If City finds the Site to be inappropriate, City has the right to cause the Artwork to be installed at an alternate location that City chooses in its sole reasonable discretion. 3.2 Waiver. With respect to the Artwork produced under this Agreement, Artist waives any and all rights and claims, arising at any time and under any circumstances, against City, its officers, agents, employees, successors and assigns, arising under the federal Visual Artist Rights Act (17 U.S.C. §§106A and 113(d)), the California Art Preservation Act (Cal. Civil Code §§987 et seq.), and any other local, state, federal or international laws that convey rights of DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Revised 4.13.23 Page 2 of 15 the same nature as those conveyed under 17 U.S.C. §106A, Cal. Civil Code §§987 et seq., or any other type of moral right protecting the integrity of works of art. If the Artwork is incorporated into the Site such that the Artwork cannot be removed from the Site without alteration of the Artwork, Artist waives any and all such claims against the City, and its agents, officers and employees, for alteration of the Artwork. 3.3 Disclaimer. If City alters the Artwork without Artist’s consent in a manner that is prejudicial to Artist’s reputation, Artist retains the right to disclaim authorship of the Artwork in accordance with California Civil Code §987(d) and 17 U.S.C. §106A(a)(2). 4.Artist’s Warranties. 4.1 Defects in Materials or Workmanship. Artist warrants that the Artwork will be free of defects in workmanship or materials, and that Artist will, at Artist’s own expense, remedy any defects due to faulty workmanship or materials appearing during the twenty-four (24) month period immediately following execution of both parties of this Agreement. This warranty includes any workmanship or materials which cause the Artwork to deteriorate over said twenty- four (24) month period in a manner inconsistent with the design, the approved plans and specifications or as would otherwise be expected from products made of similar materials, or from any quality within the materials which comprise the Artwork which, either alone or in combination, result in the tendency of the Artwork, or their installation, to deteriorate. 4.2 Title. Artist warrants that the Artwork is the result of the artistic efforts of Artist and that the Artwork will be delivered and transferred to City free and clear of any liens, claims, or other encumbrances of any type, exclusive of intellectual property rights of Artist. 5.Maintenance of the Artwork. Artist shall provide City with written instructions for appropriate maintenance and preservation of the Artwork. 6.Default; Remedies. 6.1 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the defaulting party in writing of the breach or dispute and the facts giving rise thereto. The injured party shall continue performing its obligations hereunder so long as the defaulting party commences to cure such default within fifteen (15) calendar days of receipt of such notice and completes the cure of such default within thirty (30) calendar days after receipt of the notice, or such longer period as may be permitted by the injured party; provided that if the default is or presents an immediate danger to the health, safety and general welfare, City may take immediate action. Compliance with the provisions of this section shall be a condition precedent to termination of this Agreement for cause and to seek arbitration, and such compliance shall not be a waiver of any party’s right to seek arbitration in the event that the dispute is not cured. 6.2 Waiver. No delay or omission in the exercise of any right or remedy by non- defaulting party on any default shall impair such right or remedy or be construed as a waiver unless such waiver, delay or omission is memorialized in writing. A party’s consent to or DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Revised 4.13.23 Page 3 of 15 approval of any act by the other party requiring the first party’s consent or approval shall not be deemed to waive or render unnecessary the other party’s consent to or approval of any subsequent act unless such consent or approval is memorialized in writing. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 6.3 Rights and Remedies. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties hereunder are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 6.4 Attorneys’ Fees. If either party to this Agreement is required to initiate or defend or is made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys’ fees. Attorneys’ fees shall include attorneys’ fees on appeal, and in addition, a party entitled to attorneys’ fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs which are incurred in such arbitration and on appeal. 7.Hold Harmless. Artist shall hold the City, its elected officials, officers, employees and agents, harmless from and against any and all liabilities, actions, claims, demands, losses, costs, damages, penalties, and expenses (collectively “Claims”), including but not limited to Claims arising from injuries to or death of persons and for damage to property, that arise out of or relate to Artist’s performance under this Agreement. This hold harmless clause excludes Claims arising from the sole negligence or willful misconduct of the City, its elected officials, officers, employees, agents, and volunteers. 8.Intellectual Property and Publicity Rights 8.1 Bill of Sale. Upon the acceptance of the Work and payment therefore by the City, the Artist shall convey and assign title to the Work and all rights thereto to the City by executing and delivering the Bill of Sale in the form attached hereto as Exhibit “C” (“Bill of Sale”). The Artist bears the risk of damage to or loss of the Work until the title passes to the City. Artist shall register a copyright with the United States Copyright Office, and the Artist shall provide the City with a copy of the application for registration. The City’s share in the copyright of the Work shall be transferred to the City by the Bill of Sale. 8.2 Copyright. Except as noted in this Agreement, the Artist shall retain all copyrights in all original works of authorship produced under this Agreement. Artist’s copyright shall not extend to predominantly utilitarian aspects of the work, such as landscaping elements, furnishings, or other similar objects. Notwithstanding any other provision to the contrary, Artist shall not grant, sell, give, or in any way convey to any person or entity of any kind a copy of the Artwork or any component thereof or any likeness or reproduction of the Artwork or any component thereof without the express written approval of the City. Nothing herein shall prohibit the Artist from providing two dimensional images of the Artwork or portions thereof to be DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Revised 4.13.23 Page 4 of 15 included in any portfolio or other resume of the Artist demonstrating or depicting representative samples of the Artist’s work. 8.3 City’s Intellectual Property License. Artist grants to City, and to City’s agents, authorized contractors and assigns, an unlimited, exclusive, and irrevocable license to all rights worldwide with respect to the Artwork and any and all intellectual property or other property of any nature produced, created, or suggested by the Artist during the term of this Agreement or resulting from the Artist’s services shall be deemed a work made for hire and shall be the sole and exclusive property of the City. Such license rights include, but are not limited to the following with respect to the Artwork and any original works of authorship created under this Agreement, whether in whole or in part, in all media (including electronic and digital) throughout the universe: (a)Implementation, Use, and Display. City may use and display any and all graphic representations or models of the Artwork, as well as the Artwork. To the extent the Artwork involves design elements that are incorporated by City into the design of the Site, City may implement such elements at the Site. (b)Reproduction and Distribution. City may make and distribute, and authorize the making, display, and distribution of, photographs and any other two or three- dimensional reproductions. City may use such reproductions for any purpose (commercial and noncommercial), including advertising, educational, and promotional materials, brochures, books, flyers, postcards, print, broadcast, film, electronic and multimedia publicity, gifts for City benefactors, documentation of City’s Civic Art Collection, and catalogues or similar publications. City shall ensure that such reproductions are made in a professional and tasteful manner, in the sole and reasonable judgment of the City. The proceeds from the sale of any such reproductions shall be used to maintain and support the Artwork or for any other governmental or charitable purpose as determined at the sole discretion of City. This provision is intended to constitute a transfer of the right to reproduction, and this Agreement is intended to be and shall be deemed to constitute the document in writing required by Civil Code Section 982(c). (c)Public Records Requests. Any documents provided by Artist to City are public records and City may authorize third parties to review and reproduce such documents pursuant to public records laws. 8.4 Third Party Infringement. The City is not responsible for any third party infringement of Artist’s copyright and not responsible for protecting the intellectual property rights of Artist. 8.5 Publicity. City shall have the right to use Artist’s name, likeness, and biographical information, in connection with the display or reproduction and distribution of the Artwork including all advertising and promotional materials regarding the City. Artist shall be reasonably available to attend any inauguration or presentation ceremonies relating to the public dedication of the Artwork. DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Revised 4.13.23 Page 5 of 15 8.6 Trademark. In the event that City’s use of the Artwork creates trademark, service mark, or trade dress rights in connection with the Artwork, City shall have an exclusive and irrevocable right in such trademark, service mark, or trade dress. Artist may not use the Artwork in any manner that would cause a likelihood of confusion as to source or sponsorship by City, its agents or assigns, or to dilute the distinctive quality of such mark. 8.7 Unique. Artist warrants that the design of the Artwork is an edition of one, and that neither Artist not Artists’ agents will execute or authorize another to execute another work of the same or substantially similar image, design, dimensions, and materials as the Artwork. Artist may create works that utilize or incorporate various individual art elements that comprise the Artwork, so long as the work utilizing or incorporating such individual elements (1) does not consist predominantly of such elements (2) is not the same or substantially similar in image, design, dimensions and materials as the Artwork, and (3) is not displayed in an environment that is the same or substantially similar to the environment in which the Artwork is to be displayed at the Site. This warranty shall continue in effect for a period consisting of the life of Artist plus 70 years or for the duration of the Artwork’s copyright protected status, whichever is longer, and shall be binding on Artist and Artist’s heirs and assigns. In the case where Artist is comprised of two or more individual persons or a group of people, the measuring life shall be the life of the last surviving individual person comprising Artist. Recognizing that City has no adequate remedy at law for Artist’s violation of this warranty, Artist agrees that, in the event Artist breaches this warranty, City shall be entitled to enjoin Artist’s breach. 8.8 Resale Royalty. If City sells the Artwork as a fixture to real property, and if the resale value of the Artwork is not itemized separately from the value of the real property, the Parties agree that the resale price of the Artwork shall be presumed to be less than the purchase price paid by City under this Agreement. Thus, City has no obligation to pay resale royalties pursuant to California Civil Code §986 or any other law requiring the payment of resale royalties. If City sells the Artwork as an individual piece, separate from or itemized as part of a real property transaction, City shall pay to Artist a resale royalty to the extent required by law, based upon the sale price of the Artwork. 9. Documentation. To the extent possible, Artist shall provide information on the Artwork requested by the City for its registration files. 10.Repair and Restoration. It is the current policy of the City to consult with Artist regarding repairs and restoration which are undertaken during Artist’s lifetime when that is practical. To facilitate consultation, Artist will, to the extent feasible, notify the City of any change in his professional address. 11. Reputation. 11.1 City’s Commitment. The City agrees that it will not use the Artwork or Artist’s name in a way which reflects discredit on the Artwork or on the name of Artist or on the reputation of Artist. DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Revised 4.13.23 Page 6 of 15 11.2 Artist’s Commitment. Artist agrees that it will not make reference to the Artwork or reproduce the Artwork or any portion thereof in a way which reflects discredit on City or the Artwork. 11.3 No Assignment or Transfer. The personal skill, judgment, and creativity of Artist are essential elements of this Agreement. Therefore, Artist shall not voluntarily or involuntarily assign, convey, subcontract, hypothecate, encumber or otherwise transfer any portion of this Agreement or any of the services to be performed hereunder without the express written consent of City, which consent may be withheld in City’s sole and absolute discretion. In the event of such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. 12.Integration; Amendments. This Agreement contains all of the agreements of the parties and cannot be modified, terminated or rescinded, in whole or in part, unless written and signed by authorized representatives of the parties hereto. No prior oral or written understanding shall be of any force with respect to those matters covered in this Agreement. 13.Governing Law. This Agreement and all matters pertaining thereto shall be construed according to the laws of the State of California. Venue shall be in Riverside County. 14.Further Responsibilities of the Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the services of the other. 15.Notices. Any notice which either party may desire to give to the other party under this Agreement must be in writing and may be given by personal delivery or by mailing the same by registered or certified mail, return receipt requested, to the party to whom the notice is directed at the address of such party hereinafter set forth, or such other address and to such other persons as the parties may hereafter designate, or by facsimile when followed by a facsimile confirming receipt: To Artist: Big Show Industries, Inc. Attention: Scott Froschauer 10401 Tuxford St Los Angeles, CA 91352 To City: City of Palm Springs Attention: City Manager / City Clerk 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Copy to: City of Palm Springs Attention: City Attorney P.O. Box 2743 Palm Springs, CA 92263 DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Revised 4.13.23 Page 7 of 15 A change in the designation of the person or address to which submittals, requests, notices or reports shall be delivered is effective when the other party has received notice of the change by certified mail or by facsimile when followed by a return facsimile confirming receipt. 16.Execution in Counterparts. This Agreement may be executed in several counterparts, and all so executed shall constitute one agreement binding on both parties hereto, notwithstanding that all parties are not signatories to the original on the same counterpart. DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Revised 4.13.23 Page 8 of 15 SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND SCOTT FROSCHAUER DBA BIG SHOW INDUSTRIES, INC. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. CONTRACTOR: By: _____________________________ By: ______________________________ Signature Signature (2nd signature required for Corporations) Date: Date: CITY OF PALM SPRINGS: APPROVED BY CITY COUNCIL: Date: 09/26/2023 Item No. 1-H APPROVED AS TO FORM: ATTEST: By: ___________________________ By: ____________________________ City Attorney City Clerk APPROVED: By: _______________________________ Date: City Manager – over $50,000 Deputy/Assistant City Manager – up to $50,000 Director – up to $25,000 Manager – up to $5,000 DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C 10/17/202310/17/2023 10/17/2023 Revised 4.13.23 Page 9 of 15 EXHIBIT A SCOPE OF WORK AND PRICING DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Revised 4.13.23 Page 10 of 15 1. General Requirements Artist will submit a proposal for a pillar sculpture(s) that represent one of six equities that represents the core ethos and identifier for Palm Springs community. These are: (1) Creativity, (2) Equality, (3) Serenity, (4) Diversity, (5) Civility, and (6) Community. 2. Scope of Work A. Create new, original, permanent sculptures to be located on the East Tahquitz Canyon median art pads between Sunrise Way and El Cielo Road. B. The sculpture is to be between 6’-12’ tall and must be anchored on the 5’ x 5’ art pads currently located in the median. (Note: important as that will be the base to support the piece and crucial for installation) C. The sculpture shall be a one-of-a-kind piece. D. The sculpture shall be appropriate in scale, material, form and content for the immediate, general, social and physical environments with which they relate. E. Consideration shall be given to structural and surface integrity, permanence, and protection against theft, vandalism, weathering, and maintenance and repair costs. F. No parts of the sculpture may extend beyond the median. G. Traffic sight lines must be protected and lighting and / or glare cannot shine into the eyes of individuals operating vehicles on the City streets. H. The sculpture will represent one equity that represents the core ethos and identifier for Palm Springs community. These are (1) Creativity, (2) Equality, (3) Serenity, (4) Diversity, (5) Civility, and (6) Community. I. Artists may submit multiple proposals for each of the represented equity values (pillars). J. A total of six (6) pieces will be selected for production and installation. K. The word of your chosen equity must be visible on the sculpture to passersby. The word must be a fully integrated design element, and not simply a caption on the pedestal. Only one equity is to be represented in the piece. L. The sculpture installation is to be completed before April 15, 2024 – World Art Day. 3. Contract Pricing Costs outlined in the contract include all items needed to perform the work including, labor, materials, overhead, profit, travel, and all administrative costs. 4. Invoicing A. The Contractor shall submit the invoice to the Contract Administrator. Invoice must contain following: i. Purchase order number B. Approval for payment shall be authorized by the Contract Administrator. DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Revised 4.13.23 Page 11 of 15 DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Revised 4.13.23 Page 12 of 15 EXHIBIT B INSURANCE 1. Procurement and Maintenance of Insurance. Contractor shall procure and maintain public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Contractor’s performance under this Agreement. Contractor shall procure and maintain all insurance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurrently with its execution of this Agreement. Contractor shall also carry workers’ compensation insurance in accordance with California workers’ compensation laws. Such insurance shall be kept in full force and effect during the term of this Agreement, including any extensions. Such insurance shall not be cancelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to commencement of services. The procuring of such insurance and the delivery of policies, certificates, and endorsements evidencing the same shall not be construed as a limitation of Contractor’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers. 2. Minimum Scope of Insurance. The minimum amount of insurance required under this Agreement shall be as follows: 1. Comprehensive general liability and personal injury with limits of at least one million dollars ($1,000,000.00) combined single limit coverage per occurrence and two million dollars ($2,000,000) general aggregate; 2. Automobile liability insurance with limits of at least one million dollars ($1,000,000.00) per occurrence; 3. Professional liability (errors and omissions) insurance with limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) annual aggregate is: _________ required ___x_____ is not required; 4. Workers’ Compensation insurance in the statutory amount as required by the State of California and Employer’s Liability Insurance with limits of at least one million dollars $1 million per occurrence. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form. 3. Primary Insurance. For any claims related to this Agreement, Contractor’s insurance coverage shall be primary with respect to the City and its respective elected officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Contractor’s insurance and shall not contribute with it. For Workers’ Compensation and Employer’s Liability Insurance only, the insurer shall waive all rights of subrogation and contribution it may have against City, its elected officials, officers, employees, agents, and volunteers. DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Revised 4.13.23 Page 13 of 15 4. Errors and Omissions Coverage. If Errors & Omissions Insurance is required, and if Contractor provides claims made professional liability insurance, Contractor shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement to cover claims made within three years of the completion of Contractor’s services under this Agreement, or (2) to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least three years after completion of Contractor’s services under this Agreement. Contractor shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy. 5. Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City. 6. Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, effecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Contractor’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies. Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: A. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement). B. "This insurance is primary and non-contributory over any insurance or self- insurance the City may have..." ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement). C. "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, “endeavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Revised 4.13.23 Page 14 of 15 All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not waive the Contractor’s obligation to provide them. 1. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City prior to commencing any work or services under this Agreement. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its elected officials, officers, employees, agents, and volunteers; or (2) Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Certificates of Insurance must include evidence of the amount of any deductible or self-insured retention under the policy. Contractor guarantees payment of all deductibles and self-insured retentions. 8. Severability of Interests (Separation of Insureds). This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer’s liability. DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C Revised 4.13.23 Page 15 of 15 EXHIBIT C BILL OF SALE BILL OF SALE AND ASSIGNMENT THIS BILL OF SALE AND ASSIGNMENT is made as of ________________, from SCOTT FROSCHAUER DBA BIG SHOW INDUSTRIES, INC. (Seller) to the CITY OF PALM SPRINGS, a municipal corporation (“Buyer”). That for good and valuable consideration to be paid pursuant to the provisions of that certain Agreement for Purchase and Sale of Public Art Work dated _______________________ between Buyer and Seller (the “Purchase Agreement”) Seller does hereby sell, assign, transfer and deliver unto Buyer, and its successors and assigns, that certain work created by Seller entitled THE PILLARS OF PALM SPRINGS – EQUALITY (the “Property”), including all right, title and interest therein, and shared copyrights thereto. Seller does hereby represent and warrant to Buyer that Seller is the lawful owner of such personal property, and that Seller had good right to sell the same as aforesaid and will warrant and defend the title thereto unto buyer, its successors, subsidiaries, parent corporations, affiliates and loan participant. IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of the date first above written. Artist By:________________________ Signature CITY OF PALM SPRINGS a municipal corporation By:________________________ City Manager ATTEST: By:_____________________________ City Clerk APPROVED AS TO FORM: CITY ATTORNEY:________________________________ DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C CITY OF PALM SPRINGS 3200 E TAHQUITZ CANYON WAY, PALM SPRINGS, CA 92262 (760) 322-8328 BUSINESS LICENSE CERTIFICATE Fees Paid:$174.00 ISSUANCE OF THIS LICENSE DOES NOT ENTITLE THE LICENSEE TO OPERATE OR MAINTAIN A BUSINESS IN VIOLATION OF ANY OTHER LAW OR ORDINANCE. THIS IS NOT AN ENDORSEMENT OF THE ACTIVITY NOR OF THE APPLICANT'S QUALIFICATIONS. Business Name:Big Show Industries DBA: Owner:Big Show Industries, Inc Mailing Address:10401 Tuxford Street Sun Valley, CA 91352 License Number:OC-002788-2023 Expiration Date:09/30/2024 PLEASE NOTE THAT IT IS YOUR RESPONSIBILITY TO RENEW AND UPDATE THIS LICENSE ANNUALLY. Business Location:10401 Tuxford Street, Sun Valley, CA 91352 Business Description:Design and Fabrication of Public Art TO BE POSTED IN A CONSPICUOUS PLACE DocuSign Envelope ID: 1BFDEE4E-1655-45B3-8406-BDB13EF8B45C