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HomeMy WebLinkAbout2/19/2014 - AGREEMENTS FUNDING AGREEMENT Palm Springs Art Museum THIS FUNDING AGREEMENT ("Agreement') is made and entered into on 5&nV 4X A , 201eby and between the City of Palm Springs, a California charter city and municipal corporation ("CITY"), and Palm Springs Art Museum, a California non-profit corporation (RECIPIENT). RECITALS A. CITY and RECIPIENT are mutually interested in funding of programs and services to the Palm Springs community. B. RECIPIENT has agreed to provide such services to the Palm Springs community pursuant to the terms of this Agreement. C. Based on its experience and reputation, RECIPIENT is qualified to provide the services and desires to provide such services. D. City desires to support the services of RECIPIENT. NOW, THEREFORE, in consideration of the promises and mutual agreements contained herein, the parties hereto agree as follows: AGREEMENT 1. SERVICES OF RECIPIENT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, RECIPIENT agrees to provide services as generally described in Exhibit "A" attached hereto and incorporated herein by this reference ("Services"). 1.2 Compliance with Law. All services rendered under this Agreement shall be provided in accordance with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regulations. 1.3 Licenses and Permits. RECIPIENT shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the services required by this Agreement. 1.4 Promotional Literature. In the event RECIPIENT distributes promotional literature advertising the Services, CITY shall be acknowledged as a sponsor of the Services. 1.5 Volunteer Coordination. To the extent reasonable, if requested by City, RECIPIENT agrees to notify its employees, members or volunteers of opportunities to volunteer at City events. ORIGINAL BID AND/OR AGREEMENT � Revised: 1/31/18 720599.1 1.6 Seatirm at Annual Gala. RECIPIENT shall provide CITY with one table of preferred seating to the Palm Springs Art Museum's 2019 Annual Gala; photograph with the headlining talent; invitation for twelve guests to attend VIP reception; prominent acknowledgement of the City's sponsorship of the event in InSight magazine and MAC newsletter. 2. TIME FOR COMPLETION The time for completion of the services to be performed by Contractor is an essential condition of this Agreement. Contractor shall prosecute regularly and diligently the work of this Agreement according to the agreed upon schedule of performance set forth in Exhibit "A." Contractor shall not be accountable for delays in the progress of its work caused by any condition beyond its control and without the fault or negligence of Contractor. Delays shall not entitle Contractor to any additional compensation regardless of the party responsible for the delay. 3. COMPENSATION OF RECIPIENT 3.1 Compensation of Recipient. CITY agrees to provide RECIPIENT with funding in an amount not to exceed fifty thousand dollars ($50,000) to be used for providing the Services. 3.2 Method of Payment. CITY will provide RECIPIENT with funding within thirty days (30 days) of execution of this agreement and upon receipt of invoice from RECIPIENT. 3.3 Changes. In the event any change or changes to the Services is requested by CITY, the parties hereto shall execute a written amendment to this Agreement setting forth with particularity all terms of such amendment including, but not limited to, any additional funding. 4. PERFORMANCE SCHEDULE 4.1 Time of Essence. Time is of the essence in the performance of this Agreement. 4.2 Schedule of Performance. RECIPIENT shall complete the Services no later than June 30, 2019. Any remaining unused funds after June 30, 2019 shall be returned to the CITY. 4.3 Force Maieure. The time for performance of services to be rendered under this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of RECIPIENT, if RECIPIENT notifies the Contract Officer within ten (10) days of the commencement of such condition. Unforeseeable causes include, but are not limited to, acts of God or of a public enemy, acts of the government, fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, and unusually severe weather. After RECIPIENT notification, the Contract Officer shall investigate the facts and the extent of any necessary delay, and extend the time for performing the services for the 2 Revised:1/31/18' 720599.I period of the enforced delay when and if, in the Contract Officer's judgment, such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. 4.4 Term. Unless earlier terminated in accordance with Section 3.5 of this Agreement, this Agreement shall continue in full force and effect for a period of twelve months, commencing July 1 , 2018 and ending on June 30, 2019, unless extended by mutual written agreement of the parties. 4.5 Termination Prior to Expiration of Term. CITY reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to RECIPIENT. Where termination is due to the fault of Contractor and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the CITY. Upon receipt of the notice of termination, RECIPIENT shall immediately cease all services except such as may be specifically approved by Contract Officer. RECIPIENT shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any services authorized by the Contract Officer after such notice. RECIPIENT may terminate this agreement, with or without cause, upon thirty (30) days written notice to CITY. 5. COORDINATION OF WORK 5.1 Representative of Recipient. The following principal of RECIPIENT is designated as being the principal and representative of RECIPIENT authorized to act and make all decisions in its behalf with respect to the specified services and work: Mark Prior, Interim Chief Executive Officer, Palm Springs Art Museum. 5.2 Contract Officer. The Contract Officer shall be the City Manager or his/her designee ("Contract Officer"). Unless otherwise specified, any approval of CITY shall mean the approval of the Contract Officer. 5.3 Prohibition Against Subcontracting or Assignment. RECIPIENT shall not contract with any other individual or entity to perform any services required under this Agreement without the CITY's express written approval. In addition, neither this Agreement nor any interest may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of CITY. 5.4 Independent Contractor. Neither CITY nor any of its employees shall have any control over the manner, mode, or means by which RECIPIENT, its agents or employees, perform the services required, except as otherwise specified. RECIPIENT shall perform all required services as an independent contractor of CITY and shall not be an employee of CITY and shall remain at all times as to CITY a wholly independent contractor with only such obligations as are consistent with that role; however, CITY shall have the right to review RECIPIENT's work product, result, and advice. RECIPIENT shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of CITY. 3 Revised:1/31/18 720599.1 6. INSURANCE Contractor shall procure and maintain, at its sole cost and expense, policies of insurance as required by the City Attorney. 7. INDEMNIFICATION. 7.1 Indemnification. To the fullest extent permitted by law, RECIPIENT shall defend (at RECIPIENT's sole cost and expense), indemnify, protect, and hold harmless CITY, its elected officials, officers, employees, agents, and volunteers (collectively the "Indemnified Parties"), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively "Claims"), including but not limited to Claims arising from injuries to or death of persons (RECIPIENT's employees included), for damage to property, including property owned by City, from any violation of any federal, state, or local law or ordinance, and from errors and omissions committed by RECIPIENT, its officers, employees, representatives, and agents, that arise out of or relate to RECIPIENT's performance under this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the CITY, its elected officials, officers, employees, agents, and volunteers. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit RECIPIENT's indemnification obligation or other liability under this Agreement. RECIPIENT's indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final. This provision is intended for the benefit of third party Indemnified Parties not otherwise a party to this Agreement. B. RECORDS AND REPORTS 8.1 Reports. RECIPIENT shall prepare and submit to the Contract Officer a report concerning the performance of the Services required by this Agreement within 30 days of completion of the Services or upon expiration of this Agreement, whichever occurs first. The report shall include all promotional materials developed for the Programming and additional media and related items pertaining to the programming. 8.2 Records. RECIPIENT shall keep such books and records as shall be necessary to properly perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records. 8.3 Cost Records. RECIPIENT shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred while performing under this Agreement. RECIPIENT shall make such materials available at its offices at all reasonable times during the term of this Agreement and for q Revised:1131118 720599.1 three (3) years from the date of final payment for inspection by City and copies shall be promptly furnished to City upon request. 8.4 Financial Records. RECIPIENT shall provide to the City an Annual Financial Report, including a balance sheet, income statement, and a description of the RECIPIENT's operations prepared in compliance with generally accepted auditing principles (GAAP) and certified by a licensed Certified Public Accountant no later than eight (8) months following the close of RECIPIENT's fiscal year end on September 30, 2019 in addition to the Internal Revenue Form 990 to be filed within the same time concerning the performance of the Services required by this Agreement within thirty (30) days of completion of the Services or upon expiration of this Agreement, whichever occurs first. 9. ENFORCEMENT OF AGREEMENT 9.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 9.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties. Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs. 9.3 Waiver. No delay or omission in the exercise of any right or remedy of a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of CITY shall be deemed to waive or render unnecessary CITY's consent to or approval of any subsequent act of RECIPIENT. Any waiver by either party of any default must be in writing. No such waiver shall be a waiver of any other default concerning the same or any other provision of this Agreement. 9.4 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative. 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. 5 Revised: 1/31118 720599.1 9.5 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment, or any other remedy consistent with the purposes of this Agreement. 10. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 10.1 Non-Liability of City Officers and Employees. No officer or employee of CITY shall be personally liable to the RECIPIENT, or any successor-in-interest, in the event of any default or breach by CITY or for any amount which may become due to the RECIPIENT or its successor, or for breach of any obligation of the terms of this Agreement. 10.2 Conflict of Interest. RECIPIENT acknowledges that no officer or employee of the CITY has or shall have any direct or indirect financial interest in this Agreement nor shall RECIPIENT enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one year thereafter. RECIPIENT warrants that RECIPIENT has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement. 10.3 Covenant Against Discrimination. In connection with its performance under this Agreement, RECIPIENT shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). RECIPIENT shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to CITY's lawful capacity to enter this Agreement, and in executing this Agreement, RECIPIENT certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any RECIPIENT activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that RECIPIENT is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. 11. MISCELLANEOUS PROVISIONS 11.1 Notice. Any notice, demand, request, consent, approval, or communication that either party desires, or is required to give to the other party or any other person shall be in writing and either served personally or sent by pre-paid, first- class mail to the address set forth below. Notice shall be deemed communicated seventy-two (72) hours from the time of mailing if mailed as provided in this Section. 6 Revised:1131J18 720599.1 Either party may change its address by notifying the other party of the change of address in writing. To City: CITY OF PALM SPRINGS David H. Ready, Esq., Ph.D., City Manager 3200 E. Tahquitz Canyon Way Palm Springs, California 92262 (760) 322-8362 To Contractor: PALM SPRINGS ART MUSEUM Mark Prior, Interim CEO 101 Museum Drive Palm Springs, CA 92262 (760) 322-4849 11.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and supersedes all other written agreements. 11.3 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement by all Parties. 11.4 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the parties. 11.5 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the Parties' successors and assignees. 11.6 Third Party Beneficiary. Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third-party beneficiary or otherwise, upon any entity or person not a party to this Agreement. 11.7 Recitals. The above-referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same. 11.8 Authority. The persons executing this Agreement on behalf of the Parties warrant that they are duly authorized to execute this Agreement on behalf of Parties and that by so executing this Agreement the Parties are formally bound to the provisions of this Agreement. 7 Revised: 1/31118 720599.1 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. "CITY" City of Palm Springs 7 Date: By: David H. Ready, Phb City Manager APPROVED AS TO FORM: ATTEST B Edward Z. Kotkin, Anthony Mejia City Attorney City Clerk APPROVED BY CITY COUNCIL T�,__ � p, ►��l) "RECIPIENT" Palm Springs Art Museum Date: Lp 1 L�2 U By : Jb L Name 6,0 Title Date: Name Title 8 - Revised:1I31118 720599_1 EXHIBIT "A" CONTRACTOR'S SCOPE OF SERVICESMORK Including, Schedule of Fees And Schedule of Performance 10 Revised:1131718 720599.1 EXHIBIT "A" DESCRIPTION OF PROGRAMMING Palm Springs Art Museum accepts funding in the amount of Fifty Thousand Dollars ($50,000) for the Programming described herein and located at RECIPIENT'S property at 101 Museum Drive, Palm Springs, California, or as specified: Free Thursday Evenings at the Palm Springs Art Museum Free Thursday Evenings: RECIPIENT will provide CITY with prominent acknowledgement of sponsorship at each Free Thursday Evenings event and in 1nSight magazine. Annual Report RECIPIENT will provide CITY with an Annual Report showing attendance at the Free Thursday Evenings Program no later than sixty (60) days following the end of RECIPIENT'S fiscal year (September 30). Educational Programming Opportunities RECIPIENT shall provide the CITY up to four (4) opportunities to provide free arts- related education programming in conjunction with Free Thursday Evenings. Museum staff, City staff and Public Arts Commissioners shall jointly direct the development and/or modification of existing programs, as appropriate, for special education events. Prior to the event, Museum shall assist with marketing via newsletters, press releases and social media. 15 Revised:1/31118 720599. EXHIBIT "B" INSURANCE PROVISIONS Including Verification of Coverage, Sufficiency of Insurers, Errors and Omissions Coverage, Minimum Scope of Insurance, Deductibles and Self-Insured Retentions, and Severability of Interests (Separation of Insureds) Revised:1131118 7205gU 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 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 12 Revised: 1/31/18 720599_1 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. 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 VI I, 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: 1. "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). 2. "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). 3. "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. 13 Revised:1/31118 720599.1 4. 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. 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. 7. 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. 14 Revised: 1/31/18 720599.1 FUNDING AGREEMENT Palm Springs Art Museum THIS FUNDING AGREEMENT ("Agreement') is made and entered into this day of Mar , 2017, by and between the City of Palm Springs, a California charter city and municipal corporation, (herein "City"), and Palm Springs Art Museum, a California non-profit corporation, (herein `Recipient'). RECITAL A. The City and Recipient are mutually interested in the funding of programs and services to the Palm Springs community. B. The Recipient has agreed to provide such services to the Palm Springs community pursuant to the terms of this Agreement. C. Based on its experience and reputation, the Recipient is qualified to provide the services and desires to provide such services. D. City desires to support the services of Recipient. NOW, THEREFORE, in consideration of the promises and mutual agreements contained herein, the parties hereto agree as follows: AGREEMENT 1. SERVICES OF RECIPIENT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Recipient agrees to provide services as generally described in Exhibit "A" attached hereto and incorporated herein by this reference ("Services"). 1.2 Compliance with Law. All services rendered under this Agreement shall be provided in accordance with all laws, ordinances, resolutions, statutes, rules, and regulations of City and any federal, state, or local governmental agency of competent jurisdiction. 1.3 Licenses and Mormits. Recipient shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the services required by this Agreement. 1.4 Promotional Literature. In the event Recipient distributes promotional literature advertising the Services, City shall be acknowledged as a sponsor of the Services. 1.5 Volunteer Coordination. To the extent reasonable, if requested by City, Recipient agrees to notify its employees, members and volunteers of opportunities to volunteer at City events. Y111,1111151611.I 1 1.6 Recipient shall provide The City with one table of preferred seating to the Palm Springs Art Museums' 2017 Annual Gala; photograph with the headlining talent; invitation for two guests to attend a VIP reception; prominent acknowledgement of the City of Palm Springs' sponsorship at the event, in InSight magazine and the MAC newsletter. 2. COMPENSATION OF RECIPIENT 2.1 Compensation of Recipient. City agrees to provide Recipient with funding in an amount not to exceed fifty thousand dollars ($50,000.00) to be used for providing the Services. 2.2 Method of Payment. City will provide Recipient with funding within thirty (30) days of receipt of an invoice from Recipient. 2.3 Changes. In the event any change or changes to the Services is requested by City, the parties hereto shall execute a written amendment to this Agreement, setting forth with particularity all terms of such amendment, including, but not limited to, any additional funding. 3. PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. Recipient shall complete the Services no later than June 30, 2017. Any remaining unused funds after June 30, 2017 shall be returned to City. 3.3 Force Maieure. The time for performance of services to be rendered pursuant to this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Recipient, including, but not limited to, acts of God or of a public enemy, acts of the government, fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, and unusually severe weather if Recipient shall within ten (10) days of the commencement of such condition notify the Contract Officer who shall thereupon ascertain the facts and the extent of any necessary delay, and extend the time for performing the services for the period of the enforced delay when and if in the Contract Officer's judgment such delay is justified, and the Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. 3.4 Term. Unless earlier terminated in accordance with Section 8.5 of this Agreement, this Agreement shall continue in full force and effect for a period of twelve months, commencing on July 1, 2016, and ending on June 30, 2017 . unless extended by mutual written agreement of the parties. 4. COORDINATION OF WORK 4.1 Representative of Recipient. The following principal of Recipient is hereby designated as being the representative of Recipient authorized to act on its 931691,1951011 2 behalf with respect to the Services specified herein and make all decisions in connection therewith: Elizabeth Armstrong, Executive Director. 4.2 Contract Officer. The Contract Officer shall be the City Manager, or his/her designee. Unless otherwise specified herein, any approval of the City required hereunder shall mean the approval of the Contract Officer. 4.3 Prohibition Aaainst Subcontractina or Assignment. Recipient shall not contract with any other individual or entity to perform in whole or in part the Services required hereunder without the express written approval of City. In addition, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. 4.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode, or means by which Recipient, its agents or employees, perform the services required herein, except as otherwise set forth herein. Recipient shall perform all services required herein as an independent contractor of City and shall not be an employee of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role; however, City shall have the right to review Recipient's work product, result, and advice. Recipient shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. 5. INSURANCE Recipient shall procure and maintain, at its sole cost and expense, policies of insurance as required by the City Attorney. 6. INDEMNIFICATION. To the fullest extent permitted by law, Recipient shall defend (at Recipient's sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the "Indemnified Parties"), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively "Claims"), including but not limited to Claims arising from injuries to or death of persons (Recipient's employees included), for damage to property, including property owned by City, from any violation of any federal, state, or local law or ordinance, and from errors and omissions committed by Recipient, its officers, employees, representatives, and agents, which Claims arise out of or are related to Recipient's negligence or willful misconduct in the performance of this Agreement, but excluding such Claims arising from the negligence or willful misconduct of the City, its elected officials, officers, employees, agents, and volunteers. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Recipient's indemnification obligation or other liability hereunder. 7. RECORDS AND REPORTS 7.1 Reports. Recipient shall prepare and submit to the Contract Officer a report concerning the performance of the Services required by this Agreement within 9.1696 016461 3 thirty (30) days of completion of the Services or upon expiration of this Agreement, whichever occurs first. The report shall also include all promotional materials developed for the Programming and additional media and related items pertaining to the Programming. 7.2 Records. Recipient shall keep such books and records as shall be necessary to properly perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records. 7.3 Cost Records. Recipient shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred while performing under this Agreement and shall submit such materials to the Contract Officer a report concerning the performance of the Services required by this Agreement within thirty (30) days of completion of the Services or upon expiration of this Agreement, whichever occurs first. 7.4 Financial Records. Recipient shall provide to the City an Annual Financial Report, including a balance sheet, income statement, and a description of the Recipient's operations prepared in compliance with generally accepted auditing principles (GAAP) and certified by a licensed Certified Public Accountant no later than eight months following the close of Recipient's fiscal year end on September 30, 2017 in addition to the Internal Revenue Service Form 990 to be filed within the same time constraints. Recipient shall prepare and submit to the Contract Officer a report concerning the performance of the Services required by this Agreement within thirty (30) days of completion of the Services or upon expiration of this Agreement, whichever occurs first. 8. ENFORCEMENT OF AGREEMENT 8.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Recipient covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 8.2 Waiver. No delay or omission in the exercise of any right or remedy of a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of City shall be deemed to waive or render unnecessary City's consent to or approval of any subsequent act of Recipient. 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. 8.3 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such YSIHO i1110ID 1 4 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. 8.4 Leaal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment, or any other remedy consistent with the purposes of this Agreement. 8.6 Termination Prior to Expiration of Term. City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Recipient, except that where termination is due to the fault of Recipient and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of termination, Recipient shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Recipient shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any services authorized by the Contract Officer thereafter. Recipient may terminate this Agreement, with or without cause, upon thirty (30) days written notice to City. 9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 9.1 Non-Liability of City Officers and Employees. No officer or employee of City shall be personally liable to the Recipient, or any successor-in-interest, in the event of any default or breach by City or for any amount which may become due to the Recipient or its successor, or for breach of any. obligation of the terms of this Agreement. 9.2 Conflict of Interest. Recipient acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement, nor shall Recipient enter into any Agreement of any kind with any such officer or employee during the term of this Agreement and for one year thereafter. Recipient warrants that Recipient has not paid or given, and will not pay or given, any third party any money or other consideration in exchange for obtaining this Agreement. 9.3 Covenant Against Discrimination. Recipient covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination or segregation in the performance of or in connection with this Agreement regarding any person or group of persons on account of their actual or perceived race, color, religion, ancestry, national origin, disability, medical condition, marital status, domestic partner status, sex, gender, gender identity, gender expression, or sexual orientation. 9.4 Political Use/Lobbying. Recipient covenants that the funds provided by City pursuant to this Agreement will not be used for political advocacy or lobbying purposes. 111(11111I11I 5 9.5 Non-Discrimination Certification. a) Recipient certifies and represents that, during the performance of the Agreement, the Recipient and any other parties with whom it may contract shall adhere to the City's non-discrimination and equal benefits as provided in the Section to assure that applicants and employees are treated equally and are not discriminated against because of their actual or perceived race, color, religion, ancestry, national origin, disability, medical condition, marital status, domestic partner status, sex, gender, gender identity, gender expression, national origin, ancestry, or sexual orientation. Recipient further certifies that it will not maintain any segregated facilities. b) Recipient shall, in all solicitations or advertisements for applicants for employment placed by or on behalf of this Agreement, state that it is an "equal opportunity employer" or that all qualified applicants will receive consideration for employment without regard to their actual or perceived race, color, religion, ancestry, national origin, disability, medical condition, marital status, domestic partner status, sex, gender, gender identity, gender expression, or sexual orientation. c) Recipient shall certify that it has not, in the performance of this Agreement, discriminated against applicants or employees because of their actual or perceived race, color, religion, ancestry, national origin, disability, medical condition, marital status, domestic partner status, sex, gender, gender identity, gender expression, or sexual orientation. d) If requested to do so by the Contract Officer, Recipient shall provide the City with access to copies of all of its records pertaining or relating to its employment practices, except to the extent such records or portions of such records are confidential or privileged under state or federal law. e) Recipient agrees to recruit Coachella Valley residents initially and to give them preference, if all other factors are equal, for any new positions which result from the performance of this Agreement and which are performed within the city. The Contract Officer may agree to modify requirement where it is in conflict with federal or state laws or regulations. f) Nothing contained in this Agreement shall be construed in any manner so as to require or permit any act which is prohibited by law. 10. MISCELLANEOUS PROVISIONS 10.1 Notice. Any notice, demand, request, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by pre-paid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed 154611,I951e911 6 communicated seventy-two (72) hours from the time of mailing if mailed as provided in this Section. To City: CITY OF PALM SPRINGS David H. Ready, Esq., Ph.D., City Manager 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Phone: 760.322-8350 Fax: 760.323-8207 david.readvapalmspringsca.gov To Recipient: PALM SPRINGS ART MUSEUM Elizabeth Armstrong, Executive Director 101 Museum Drive Palm Springs, CA 92262 Phone: 760.322.4849 Fax: 760.327.5069 earmstrong(a)_psmuseum.org 10.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and cannot be amended or modified except by written agreement. 10.3 Amendment. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 10.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 10.5 Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. "Ill'. Y 11,111 7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective on the day and year first above written. The undersigned hereby warrants that they are legally authorized and entitled to make the promises, covenants, and representations set forth herein. "RECIPIENT" By: ' t= LLB�! "f1-\ I�R M rs[R-a►•rC� Title: AppFaM BY CITY COUNCIL Date: -�SP, IUD "CITY" CITY OF PALM SPRINGS ATTEST: By: By Kathleen D. Hart, MMC David H. Ready, Esq., Ph.D, Interim City Clerk City Manager APPRO eO FORM: By: eeno� Douglas . Holland, City At Marcus L. Fuller, MPA, PE, PLS Assistant City Manager/City Engineer EXHIBIT "A" DESCRIPTION OF PROGRAMMING Palm Springs Art Museum accepts funding in the amount of Fifty Thousand Dollars ($50,000) for the Programming described herein and located at Recipient's property at 101 Museum Drive, Palm Springs, California, or as specified: Free Thursday Evenings at the Palm Springs Art Museum Free Thursday Evenings Recipient will provide the City of Palm Springs with prominent acknowledgement of sponsorship at each Free Thursday Evenings event and in inSight magazine. Annual Report Sixty (60) days after the Term of the agreement, the Palm Springs Art museum will provide City with an Annual Report showing attendance at the Free Thursday Evenings Program. Educational Programming Opportunities Recipient shall provide the City of Palm Springs up to four (4) opportunities to provide free arts related education programming in conjunction with Free Thursday Evenings. Museum Staff, City Staff and Public Arts Commissioners shall jointly direct the development and/or modification of existing programs, as appropriate, for special educational events. Prior to the event the Museum shall assist with marketing via newsletters, press releases and social media. V95.1SWI5 M.1 9 FUNDING AGREEMENT Palm Springs Art Museum THIS FUNDING AGREEMENT ("Agreement') is made and entered into this Iq day of Decernler 2015, by and between the City of Palm Springs, a California charter city and municipal corporation, (herein "City"), and Palm Springs Art Museum, a California non-profit corporation, (herein 'Recipient'). RECITAL A. The City and Recipient are mutually interested in the funding of programs and services to the Palm Springs community. B. The Recipient has agreed to provide such services to the Palm Springs community pursuant to the terms of this Agreement. C. Based on its experience and reputation, the Recipient is qualified to provide the services and desires to provide such services. D. City desires to support the services of Recipient. NOW, THEREFORE, in consideration of the promises and mutual agreements contained herein, the parties hereto agree as follows: AGREEMENT 1. SERVICES OF RECIPIENT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Recipient agrees to provide services as generally described in Exhibit "A" attached hereto and incorporated herein by this reference ("Services"). 1.2 Compliance with Law. All services rendered under this Agreement shall be provided in accordance with all laws, ordinances, resolutions, statutes, rules, and regulations of City and any federal, state, or local governmental agency of competent jurisdiction. 1.3 Licenses and Permits. Recipient shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the services required by this Agreement. 1.4 Promotional Literature. In the event Recipient distributes promotional literature advertising the Services, City shall be acknowledged as a sponsor of the Services. 1.5 Volunteer Coordination. To the extent reasonable, if requested by City, Recipient agrees to notify its employees, members and volunteers of opportunities to volunteer at City events. 951696,9516%I ORIGINAL BID AND/OR AGREEMENT 1.6 Recipient shall provide the City with one table of preferred seating to the Palm Springs Art Museums' 2016 Annual Gala. 2. COMPENSATION OF RECIPIENT 2.1 Compensation of Recipient. City agrees to provide Recipient with funding in an amount not to exceed fifty thousand dollars ($50,000.00) to be used for providing the Services. 2.2 Method of Payment. City will provide Recipient with funding within thirty (30) days of receipt of an invoice from Recipient. 2.3 Changes. In the event any change or changes to the Services is requested by City, the parties hereto shall execute a written amendment to this Agreement, setting forth with particularity all terms of such amendment, including, but not limited to, any additional funding. 3. PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Force Maieure. The time for performance of services to be rendered pursuant to this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Recipient, including, but not limited to, acts of God or of a public enemy, acts of the government, fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, and unusually severe weather if Recipient shall within ten (10) days of the commencement of such condition notify the Contract Officer who shall thereupon ascertain the facts and the extent of any necessary delay, and extend the time for performing the services for the period of the enforced delay when and if in the Contract Officer's judgment such delay is justified, and the Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. 3.3 Term. Unless earlier terminated in accordance with Section 8.5 of this Agreement, this Agreement shall continue in full force and effect for a period of twelve months, commencing on July 1, 2015, and ending on June 30, 2016 unless extended by mutual written agreement of the parties. 4. COORDINATION OF WORK 4.1 Representative of Recipient. The following principal of Recipient is hereby designated as being the representative of Recipient authorized to act on its behalf with respect to the Services specified herein and make all decisions in connection therewith: Elizabeth Armstrong, Executive Director. 4.2 Contract Officer. The Contract Officer shall be the City Manager, or his/her designee. Unless otherwise specified herein, any approval of the City required hereunder shall mean the approval of the Contract Officer. "191 1155 I'll 2 4.3 Prohibition Against Subcontracting or Assignment. Recipient shall not contract with any other individual or entity to perform in whole or in part the Services required hereunder without the express written approval of City. In addition, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. 4.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode, or means by which Recipient, its agents or employees, perform the services required herein, except as otherwise set forth herein. Recipient shall perform all services required herein as an independent contractor of City and shall not be an employee of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role; however, City shall have the right to review Recipient's work product, result, and advice. Recipient shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. 5. INSURANCE Recipient shall procure and maintain, at its sole cost and expense, policies of insurance as required by the City Attorney. 6. INDEMNIFICATION. To the fullest extent permitted by law, Recipient shall defend (at Recipient's sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the "Indemnified Parties"), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively "Claims"), including but not limited to Claims arising from injuries to or death of persons (Recipient's employees included), for damage to property, including property owned by City, from any violation of any federal, state, or local law or ordinance, and from errors and omissions committed by Recipient, its officers, employees, representatives, and agents, which Claims arise out of or are related to Recipient's negligence or willful misconduct in the performance of this Agreement, but excluding such Claims arising from the negligence or willful misconduct of the City, its elected officials, officers, employees, agents, and volunteers. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Recipient's indemnification obligation or other liability hereunder. 7. RECORDS AND REPORTS 7.1 Reports. Recipient shall prepare and submit to the Contract Officer a report concerning the performance of the Services required by this Agreement within thirty (30) days of completion of the Services or upon expiration of this Agreement, whichever occurs first. The report shall also include all promotional materials developed for the Programming and additional media and related items pertaining to the Programming. 951696.1951696.1 3 7.2 Records. Recipient shall keep such books and records as shall be necessary to properly perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records. 7.3 Cost Records. Recipient shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred while performing under this Agreement and shall submit such materials to the Contract Officer a report concerning the performance of the Services required by this Agreement within thirty (30) days of completion of the Services or upon expiration of this Agreement, whichever occurs first. 7.4 Financial Records. Recipient shall provide to the City an Annual Financial Report, including a balance sheet, income statement, and a description of the Recipient's operations prepared in compliance with generally accepted auditing principles (GAAP) and certified by a licensed Certified Public Accountant no later than eight months following the close of Recipient's fiscal year end on September 30, 2016 in addition to the Internal Revenue Service Form 990 to be filed within the same time constraints. Recipient shall prepare and submit to the Contract Officer a report concerning the performance of the Services required by this Agreement within thirty (30) days of completion of the Services or upon expiration of this Agreement, whichever occurs first. 8. ENFORCEMENT OF AGREEMENT 8.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Recipient covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 8.2 Waiver. No delay or omission in the exercise of any right or remedy of a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of City shall be deemed to waive or render unnecessary City's consent to or approval of any subsequent act of Recipient. 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. 8.3 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties 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. v.i,.x. SEI.v 1 4 8.4 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment, or any other remedy consistent with the purposes of this Agreement. 8.5 Termination Prior to Expiration of Term. City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Recipient, except that where termination is due to the fault of Recipient and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of termination, Recipient shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Recipient shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any services authorized by the Contract Officer thereafter. Recipient may terminate this Agreement, with or without cause, upon thirty (30) days written notice to City. 9. CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION 9.1 Non-Liability of City Officers and Employees. No officer or employee of City shall be personally liable to the Recipient, or any successor-in-interest, in the event of any default or breach by City or for any amount which may become due to the Recipient or its successor, or for breach of any obligation of the terms of this Agreement. 9.2 Covenant Against Discrimination. Recipient covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination or segregation in the performance of or in connection with this Agreement regarding any person or group of persons on account of race, color, creed, religion, sex, marital status, disability, sexual orientation, national origin, or ancestry. 9.3 Political Use/Lobbying. Recipient covenants that the funds provided by City pursuant to this Agreement will not be used for political advocacy or lobbying purposes. 10. MISCELLANEOUS PROVISIONS 10.1 Notice. Any notice, demand, request, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by pre-paid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated seventy-two (72) hours from the time of mailing if mailed as provided in this Section. 951694.Y514W.1 5 To City: CITY OF PALM SPRINGS David H. Ready, Esq., Ph.D., City Manager 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Phone: 760.322-8350 Fax: 760.323-8207 david.readvC�palmspringsca.gov To Recipient: PALM SPRINGS ART MUSEUM Elizabeth Armstrong, Executive Director 101 Museum Drive Palm Springs, CA 92262 Phone: 760.322.4849 Fax: 760.327.5069 earmstrong a()psmuseum.org 10.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and cannot be amended or modified except by written agreement. 10.3 Amendment. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 10.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 10.5 Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. R .,v- 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective on the day and year first above written. The undersigned hereby warrants that they are legally authorized and entitled to make the promises, covenants, and representations set forth herein. "RECIPIENT" By: poroi'k and Harold �'. ._p_ Title: G� �'I y1Y�G{ �1GVC(gQYri¢11J� Date: �C.CGvr��O.¢Y 2015 v APPROVED BY CITY COUNCIL "CITY" CITY OF PALM SPRINGS ATTEST: By: . �� B ' James Thompson, City Clerk David H. Ready, Esq., Ph. , City Manager APPRO E �S TO FORM: By: By: Dougl C. Holland, City Attorney Lauri Aylaian, Director Community and Economic Development x,R hfi 7 EXHIBIT"A" DESCRIPTION OF PROGRAMMING Palm Springs Art Museum accepts funding in the amount of Fifty Thousand Dollars ($50,000) for the Programming described herein and located at Recipient's property at 101 Museum Drive, Palm Springs,California, or as specified: Free Thursday Evenings at the Palm Springs Art Museum Free Thursday Evenings Recipient will provide the City of Palm Spring Public Art Commission with prominent acknowledgement of sponsorship at each Free Thursday Evening event and in tnSight magazine. The 2016 Annual Gala Recipient will provide the City with one table of ten for dinner,performance,and dancing; preferred seating at the event; photograph with the headlining talent;invitation for two guests to attend a VIP reception; prominent acknowledgement of the City Council's and the City's Public Arts Commission's sponsorship at the event, in in Sight magazine and the MAC newsletter. Annual Report Sixty (60) days after the Term, the Palm Springs Art museum will provide City with an Annual Report showing attendance at the Free Thursday Evening Program. FUNDING AGREEMENT Palm Springs Art Museum THIS FUNDING AGREEMENT ("Agreement') is made and entered into this 1gth day of February, 2014, by and between the City of Palm Springs, a California charter city and municipal corporation, (herein "City"), and Palm Springs Art Museum, a California non-profit corporation, (herein "Recipient'). RECITAL A. The City and Recipient are mutually interested in the funding of programs and services to the Palm Springs community. B. The Recipient has agreed to provide such services to the Palm Springs community pursuant to the terms of this Agreement. C. Based on its experience and reputation, the Recipient is qualified to provide the services and desires to provide such services. D. City desires to support the services of Recipient. NOW, THEREFORE, in consideration of the promises and mutual agreements contained herein, the parties hereto agree as follows: AGREEMENT 1. SERVICES OF RECIPIENT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Recipient agrees to provide services as generally described in Exhibit "A" attached hereto and incorporated herein by this reference ("Services"). 1.2 Compliance with Law. All services rendered under this Agreement shall be provided in accordance with all laws, ordinances, resolutions, statutes, rules, and regulations of City and any federal, state, or local governmental agency of competent jurisdiction. 1.3 Licenses and Permits. Recipient shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the services required by this Agreement. 1.4 Promotional Literature. In the event Recipient distributes promotional literature advertising the Services, City shall be acknowledged as a sponsor of the Services. 1.5 Volunteer Coordination. To the extent reasonable, if requested by City, Recipient agrees to notify its employees, members and volunteers of opportunities to volunteer at City events. 451696J93169L.1 �,; t 1J10f; nG n FE P.9 F!•' 1.6 Recipient shall provide the City with one table of preferred seating to the 75`" Anniversary Gala: Celebrating Palm Springs Art Museums' Diamond Anniversary. 2. COMPENSATION OF RECIPIENT 2.1 Compensation of Recipient. City agrees to provide Recipient with funding in an amount not to exceed fifty thousand dollars ($50,000.00) to be used for providing the Services. 2.2 Method of Payment. City will provide Recipient with funding within thirty (30) days of receipt of an invoice from Recipient. 2.3 Changes. In the event any change or changes to the Services is requested by City, the parties hereto shall execute a written amendment to this Agreement, setting forth with particularity all terms of such amendment, including, but not limited to, any additional funding. 3. PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Force Maieure. The time for performance of services to be rendered pursuant to this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Recipient, including, but not limited to, acts of God or of a public enemy, acts of the government, fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, and unusually severe weather if Recipient shall within ten (10) days of the commencement of such condition notify the Contract Officer who shall thereupon ascertain the facts and the extent of any necessary delay, and extend the time for performing the services for the period of the enforced delay when and if in the Contract Officer's judgment such delay is justified, and the Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. 3.3 Term. Unless earlier terminated in accordance with Section 8.5 of this Agreement, this Agreement shall continue in full force and effect for a period of twelve months, commencing on July 1, 2013, and ending on June 30, 2014 unless extended by mutual written agreement of the parties. 4. COORDINATION OF WORK 4.1 Representative of Recipient. The following principal of Recipient is hereby designated as being the representative of Recipient authorized to act on its behalf with respect to the Services specified herein and make all decisions in connection therewith: Steven A. Nash, Ph.D., Executive Director. 4.2 Contract Officer. The Contract Officer shall be the City Manager, or his/her designee. Unless otherwise specified herein, any approval of the City required hereunder shall mean the approval of the Contract Officer. 9J169G19JIGY6.1 2 4.3 Prohibition Against Subcontracting or Assignment. Recipient shall not contract with any other individual or entity to perform in whole or in part the Services required hereunder without the express written approval of City. In addition, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. 4.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode, or means by which Recipient, its agents or employees, perform the services required herein, except as otherwise set forth herein. Recipient shall perform all services required herein as an independent contractor of City and shall not be an employee of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role; however, City shall have the right to review Recipient's work product, result, and advice. Recipient shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. 5. INSURANCE Recipient shall procure and maintain, at its sole cost and expense, policies of insurance as required by the City Attorney. 6. INDEMNIFICATION. To the fullest extent permitted by law, Recipient shall defend (at Recipient's sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the "Indemnified Parties"), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively "Claims"), including but not limited to Claims arising from injuries to or death of persons (Recipient's employees included), for damage to property, including property owned by City, from any violation of any federal, state, or local law or ordinance, and from errors and omissions committed by Recipient, its officers, employees, representatives, and agents, which Claims arise out of or are related to Recipient's negligence or willful misconduct in the performance of this Agreement, but excluding such Claims arising from the negligence or willful misconduct of the City, its elected officials, officers, employees, agents, and volunteers. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Recipient's indemnification obligation or other liability hereunder. 7. RECORDS AND REPORTS 7.1 Reports. Recipient shall prepare and submit to the Contract Officer a report concerning the performance of the Services required by this Agreement within thirty (30) days of completion of the Services or upon expiration of this Agreement, whichever occurs first. 7.2 Records. Recipient shall keep such books and records as shall be necessary to properly perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all reasonable times, 9516%1951696.1 3 including the right to inspect, copy, audit, and make records and transcripts from such records. 7.3 Cost Records. Recipient shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred while performing under this Agreement and shall make such materials available at its offices at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment for inspection by City and copies thereof shall be promptly furnished to City upon request. 8. ENFORCEMENT OF AGREEMENT 8.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Recipient covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 8.2 Waiver. No delay or omission in the exercise of any right or remedy of a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of City shall be deemed to waive or render unnecessary City's consent to or approval of any subsequent act of Recipient. 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. 8.3 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties 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. 8.4 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment, or any other remedy consistent with the purposes of this Agreement. 8.5 Termination Prior to Expiration of Term. City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Recipient, except that where termination is due to the fault of Recipient and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of termination, Recipient shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Recipient shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any services authorized by the Contract Officer thereafter. Recipient may terminate this Agreement, with or without cause, upon thirty (30) days written notice to City. 911696 M16%., 4 9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 9.1 Non-Liability of City Officers and Employees. No officer or employee of City shall be personally liable to the Recipient, or any successor-in-interest, in the event of any default or breach by City or for any amount which may become due to the Recipient or its successor, or for breach of any obligation of the terms of this Agreement. 9.2 Covenant Against Discrimination. Recipient covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination or segregation in the performance of or in connection with this Agreement regarding any person or group of persons on account of race, color, creed, religion, sex, marital status, disability, sexual orientation, national origin, or ancestry. 9.3 Political Use/Lobbving. Recipient covenants that the funds provided by City pursuant to this Agreement will not be used for political advocacy or lobbying purposes. 10. MISCELLANEOUS PROVISIONS 10.1 Notice. Any notice, demand, request, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by pre-paid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated seventy-two (72) hours from the time of mailing if mailed as provided in this Section. To City: CITY OF PALM SPRINGS David H. Ready, Esq., Ph.D., City Manager 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Phone: 760.322-8350 Fax: 760.323-8207 david.readV(a)palmspringsca.gov To Recipient: PALM SPRINGS ART MUSEUM Steven A. Nash, Ph.D., Executive Director 101 Museum Drive Palm Springs, CA 92262 Phone: 760.322.4849 Fax: 760.327.5069 snash(a)psmuseum.org 10.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and cannot be amended or modified except by written agreement. 951696 1951696 1 5 10.3 Amendment. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 10.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 10.5 Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. 9516% <I fi96J 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective on the day and year first above written. The undersigned hereby warrants that they are legally authorized and entitled to make the promises, covenants, and representations set forth herein. "CITY" CITY OF PALM SPRINGS ATTEST: By By. / James Thompson, City Clerk David H. Ready, City Manager APPROV jk_S TO FORM: APPROVED BY CITY COUNCIL Douglas C. Holland, City Attorney "RECIPIE l By: l� , Title: L Date: 9516%19516%1 7 EXHIBIT "A" DESCRIPTION OF PROGRAMMING Palm Springs Art Museum accepts funding in the amount of Fifty Thousand Dollars ($50,000) for the Programming described herein and located at Recipient's property at 101 Museum Drive, Palm Springs, California, or as specified: Free Thursday Evenings at the Palm Springs Art Museum Free Thursday Evenings Recipient will provide the City of Palm Springs with prominent acknowledgement of sponsorship at each Free Thursday Evening event and in InSight magazine. Sculpture Conservation Funding Funding will provide conservation work for the sculpture Big SkuN and Horn In Two Parts IV by Jack Zajac. The sculpture was exhibited outdoors, at the Palm Springs Airport, for a two year exhibition period. Due to the outdoor exhibition setting the patina surface was soiled with bird droppings, particulate debris, adhered soot and grime, and the patina was worn with a variable surface. Exposure to sprinkler spray and atmospheric moisture resulted in the accretion of calcium carbonate and water staining to the surface of the skull and the base below. This sponsorship is to offset the costs incurred for conservation services. 951696.19516%1 8