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granted pursuant to this Agreement; the artwork is free and clear of any liens from any source whatsoever; all artwork created or performed by the Artist under this Agreement, whether created by the Artist alone or in collaboration with others, shall be wholly original with the Artist and shall not infringe upon or violate the rights of any third party; the Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and all services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc. and with all necessary care, skill, and diligence.

B.2.1 Defects in Workmanship. The Artist represents and warrants that all work by the Artist and/or sub-consultants will be performed in accordance with professional standards and free from defective or inferior materials and workmanship (including any defects consisting of “inherent vice,” or qualities that cause or accelerate deterioration of the artwork) for one year after the date of final acceptance by the City under Exhibit F.

B.2.2 Inherent Defects. If within four years from the date the artwork is formally accepted, the City observes any breach of warranty that is curable by the Artist, the Artist shall, at the request of the City, cure the breach promptly, satisfactorily and consistent with professional conservation standards, at no expense to the City. The City shall give notice to the Artist of such breach with reasonable promptness.

B.2.3 Breach of Warranty. If within one year the City observes a breach of warranty that is not curable by the Artist, the Artist is responsible for reimbursing the City for damages, expenses and loss incurred by the City as a result of the breach. However, if the Artist disclosed the risk of this breach and the City, through the artwork proposal review and approval process outlined in Exhibit A, accepted that it may occur, it shall not be deemed a breach for purposes of this Agreement.

B.2.4 Hazardous Materials. The Artist represents and warrants that the artwork and the materials used are not currently known to be hazardous or potentially hazardous to any plant life, animal life, human life or natural ecosystem.

B.2.5 Public Safety. The Artist represents and warrants that the artwork shall not constitute any threat to the safety of persons or property when used in the manner for which it is designed.

B.2.5.1Adjustments to Eliminate Hazards. The Artist agrees to cooperate with the City in making or permitting adjustments to the artwork if necessary to eliminate hazards which become apparent after the artwork is accepted by the City. The Artist shall be notified in writing when an adjustment is necessary and the City shall consult with the Artist in accordance with Section B.9 of this Exhibit.

B.2.6 Maintenance. The Artist represents and warrants that reasonable maintenance of the artwork will not require procedures substantially in excess of those described in the maintenance plan submitted by the Artist pursuant to Exhibit A.

B.2.7 Acceptable Standard for Display. Artist represents and warrants that: General routine cleaning and repair of the artwork and any associated working parts and/or equipment will maintain the artwork within an acceptable standard for public display; foreseeable exposure to the elements and general wear and tear will cause the artwork to experience only minor repairable damages and will not cause the artwork to fall below an acceptable standard for public display; with

CCDC/City of San Diego Asian Pacific Historic District Gateway Public Art March 2010 Page 29 of 38

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