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Desert Recreation Dist / Steve Davis Art Purchase 11i. ART PURCHASE AGREEMENT TH S ART PURCHASE AGREEMENT (the "Agreement") is entered into this jS 64 day of 2011, by and among THE CITY OF LA QUINTA, a California municipal corpora t n ("City"), DESERT RECREATION DISTRICT ("Developer") and STEVE DAVIS ("Artist"). RECITALS A. Developer has requested approval for LaQscape (the "Project") on the property generally located at the La Quinta Community Center, Wellness Center, 77865 Avenida Montezuma, La Quinta, CA 92253 ("Property"). The project is subject to the artwork requirements of the City of La Quinta Art in Public Places Program set forth in Chapter 2.65 of the La Quinta Municipal Code (the "Municipal Code"). B. To meet the requirements for artwork pursuant to Chapter 2.65, Developer is commissioning the fabrication and installation of certain artwork (the "Artwork") to be installed and displayed by Artist at a location(s) on the Property (the "Site Location(s)") to be determined by City and Developer. NOW, THEREFORE, in consideration of the performance by the parties of the mutual promises, covenants, and conditions contained hereinafter, the parties hereto agree as follows: ARTICLE I. SCOPE OF SERVICES AND PAYMENT 1.1 Scope of Design and Fabrication Services. Subject to the terms and conditions set forth in this Agreement, Artist shall (i) prepare, or cause to be prepared, conceptual design plans for the Artwork, including setting forth details and samples of the materials to be used and composition of the proposed Artwork; (ii) based on the conceptual design plans approved by City and Developer, develop working drawings which shall be incorporated into the Schedule of Performance attached hereto as Exhibit A; and (iii) fabricate and install the Artwork as more particularly described in the Scope of Design Build Services and the Schedule of Performance attached hereto as Exhibit A and Exhibit B, respectively, and incorporated herein by this reference. Artist shall perform his/her obligations in strict conformance with the terms and conditions set forth in this Agreement and shall take all other actions necessary and incidental to the performance of said obligations. 1.2 Periodic Review. City and Developer shall have the right to review the Artwork at reasonable times during the fabrication thereof. Artist shall submit regular progress narratives, including photographs, to City and Developer as required by the Schedule of Performance set forth in Exhibit B. The narratives shall clearly state the percentage of the Artwork completed to date and provide an estimated completion date. 1.3 Materials and Labor. Artist shall furnish all tools, equipment, apparatus, labor, services, materials, and transportation necessary to perform the Design and Fabrication Services more fully described in Exhibit A and to install the Artwork, together with any appurtenances thereto, in a good and workmanlike manner in the Site Location(s) as more fully described in said Exhibit A or reasonably inferable therein. If Artist fails to furnish the labor, materials, equipment, and or services necessary to perform all work and labor as herein provided in the manner herein set forth in good and workmanlike manner, Artist shall, in addition to any other penalties provided in the Agreement, be liable to Developer and City for all losses or damages Page 1 of 20 that either may suffer as a result of such failure, including any additional costs incurred by City or Developer in obtaining such material or labor from other sources. 1.4 Change Orders. Artist shall strictly adhere to the Scope of Design Build Services set forth in Exhibit A, unless a change there from is authorized in writing by City and Developer. Artist shall present any and all significant changes to the Artwork not permitted by or in substantial conformity with the approved working drawings and the Scope of Design Build Services set forth in Exhibit A to City and Developer in writing in advance for their review and approval. If City and Developer grant such approval, the terms of said change shall be memorialized in a written change order signed by all parties hereto prior to commencement of said revised work. For the purposes of this section, a "significant change" is any change in the scope, design, color, size, material, texture, or site location which affects installation, scheduling, site preparation, or maintenance for the Artwork or the schematic concept of the Artwork as represented in the schematic drawings, the approved working drawings, and the Scope of Design Build Services set forth in Exhibit A. 1.5 Working Environment. Artist land Developer, if appropriate) shall, at all times, maintain a safe work area and provide safe access to both the Artwork and the sites wherein the Artwork is located prior to installation at the Site Location for inspection of the Artwork by City and its representatives. 1.6 Testing and Inspections. Where specifications require the Artwork to be specially tested or approved, Artist shall not perform such testing, or cause such testing to be performed, until (1) Artist or Developer has first provided timely notice to City that the Artwork is ready for inspection and/or testing, and (2) City has inspected and approved of the Artwork or consented to said testing in writing. Artist shall, at its sole cost and expense, perform all work required to comply with scheduled inspections and testing, and any requests for corrections the City or other inspection authorities make as a result of such inspections or testing. 1.7 Post -Fabrication Obligations. a. Developer and/or Artist shall notify City in writing when the fabrication of the Artwork is completed and the Artwork is ready for delivery and installation at the Site Location(s) designated in Exhibit A and Exhibit B. b. Upon completion of the Artwork, and at all times during the fabrication and installation process, Artist shall ensure that the Artwork complies with all applicable statutes, ordinances and regulations of any governmental agency having jurisdiction over the Artwork. Artist shall also ensure that the Artwork is installed in a safe manner. 1.8 Post -Installation Obligations. a. Artist shall be available at such reasonable time or times as may be agreed between City and Artist to attend any and all inauguration, ground breaking, or presentation ceremonies upon completion of the Artwork. b. Developer shall use reasonable efforts to arrange for publicity for the completed Artwork by local media and publications and as otherwise determined between City, Developer, and Artist as soon as practicable following installation. Page 2 of 20 C. Upon installation of the Artwork, Artist shall provide Developer and City with written instructions for appropriate maintenance and preservation of the Artwork. 1.9 Final Acceptance. a. Artist shall advise Developer and City in writing when Artist believes that installation of the Artwork at the Site Location(s) is complete. Following receipt of such notice, Developer and City shall promptly cause the installed Artwork to be inspected. Within five (5) working days following completion of such inspection(s), City and Developer shall either (i) provide Artist with reasonably specific written objections, and a list of necessary corrections to the installed Artwork that Artist must complete, or (ii) notify Artist of their acceptance of the Artwork by issuing a Notice of Completion in the form attached hereto as Exhibit D. Said Notice of Completion shall be evidence of the satisfactory completion and installation of the Artwork in conformity with this Agreement, subject to the indemnification, representations, and further performance obligations set forth in this Agreement. b. Final Acceptance by City of the ownership of the Artwork will occur twenty-five years (25) from the date of issuance of the Notice of Completion or the year 2036. At that time, ownership and responsibility for the Artwork will transfer to City. At City's option, City may permit the ownership of the Artwork to remain with the owner of the Site. 1 .10 Risk of Loss. Artist shall bear the risk of loss or damage to the Artwork during the fabrication and installation phases until Developer and City issue the Notice of Completion indicating their acceptance of the Artwork as provided in Section 1.9. Upon Artist's receipt of the Notice of Completion, the risk of loss or damage to the Artwork shall be borne by Developer until City accepts the artwork at the conclusion of the 25-year period provided in Section 1.9(b). Developer shall take the measures described in Article VII of this Agreement, as necessary, to protect the Artwork from loss or damage and shall maintain the Artwork until City accepts final ownership of the Artwork as provided in Section 1.9(b). 1 .1 1 Compensation to Artist: City agrees to pay Artist for the Artwork the compensation set forth in Exhibit C. The total compensation to be paid to Artist shall not exceed Ten Thousand one hundred dollars ($10,100). The parties agree that said compensation represents full payment to Artist for the design, fabrication and installation of the Artwork, including compensation for all professional services and reimbursement for expenses, and neither City nor Developer shall have any additional financial obligations under this Agreement. ARTICLE II. TIME OF PERFORMANCE 2.1 Time. Artist shall perform his/her obligations under this Agreement in a punctual and diligent manner and in accordance with the Schedule of Performance attached hereto as Exhibit B. In the event Artist fails to perform fully any and all of its obligations under this Agreement, then City and/or Developer may, at their option, after first giving twenty-four (24) hours written notice to Artist, provide any such labor and materials as may be necessary for the completion of the Artwork. In such event, City and/or Developer may deduct the cost of said labor and materials and all costs incurred in finishing the work, if applicable, from any money then due or thereafter to become due to Artist under this Agreement until the work undertaken by Developer or City is completely finished. Upon completion of the work, if the Page 3 of 20 unpaid balance of the amount to be paid to Artist under this Agreement exceeds the expenses incurred by Developer or City in securing labor and materials from other sources and/or in finishing Artist's work, such excess shall be paid to Artist. Conversely, if the expenses incurred by City and/or Developer as described above exceed the unpaid balance due to Artist, then Artist shall promptly pay to City and/or Developer the amount by which such expenses exceed the remaining unpaid balance. The expense incurred by City and/or Developer, as herein provided, shall be chargeable to and paid by Artist. ARTICLE III. WARRANTIES 3.1 Title. Artist represents and warrants that: (a) the Artwork is solely the result of the artistic effort of the Artist and Artist is the creator and owner of the Artwork design; (b) that the Artwork is unique and original and does not infringe upon any copyright; (c) that the Artwork, or a duplicate thereof, has not been accepted for sale elsewhere; (d) that to the best of his/her knowledge the Artwork is not presently subject to claims of ownership, lien or encumbrance or to common law or statutory copyright claims of any other person, institution, or domestic or foreign government; and (e) that the Artwork is free and clear of any and all encumbrances and/or monetary liens. Artist covenants to defend, indemnify and hold City, Developer, and their respective officials, officers, employees, servants, attorneys, volunteers, and agents harmless from any loss, claim or liability in any way related to a claim that that the Artwork violates federal, state or local laws, or any contractual provisions, relating to copyrights, trade names, licenses, franchises, patents or other means of protecting interests in products or inventions. Artist shall bear all costs arising from the use of patented, copyrighted, trade secret or trademarked materials, equipment, devices or processes used on or incorporated in the Artwork produced under this Agreement. In case such materials, equipment, devices or processes are held to constitute an infringement and their use is enjoined, Artist shall, at his/her expense, either (a) secure for City and Developer the right to continue exhibiting the Artwork by suspension of any injunction or by procuring a license or licenses for City and Developer; or (b) modify the Artwork so that it becomes non -infringing. The covenant and warranties set forth in this Section 3.1 shall survive the termination of this Agreement. 3.2 Quality and Condition. Artist represents and warrants, except as otherwise disclosed to City in writing, that: (a) the fabrication of the Artwork will be performed in a workmanlike manner; (b) the Artwork, as fabricated and following installation, will be free of patent and latent defects in material and workmanship, including any defects or qualities which cause or accelerate deterioration of the Artwork; and (c) reasonable maintenance of the Artwork will not require procedures substantially in excess of those described in the maintenance recommendations to be submitted by Artist to Developer and City. The warranties described in this Section 3.2 shall survive for a period of one (1) year after acceptance of the Artwork as evidenced by a Notice of Completion issued in accordance with Section 1.9, except the representation and warranty concerning latent defects shall survive for a period of three (3) years from the acceptance of the Artwork. Developer and/or City shall give notice to Artist of any observed and claimed breach with reasonable promptness. Artist shall, at the request of City or Developer and at no cost to City or Developer, cure reasonably and promptly the breach of any such warranty which is curable by Artist and which cure is consistent with professional conservation standards (including, for example, cure by means of repair or refabrication of the Artwork). Page 4 of 20 ARTICLE IV. LOCATION AND DISPLAY OF ARTWORK 4.1 Location/Display. Notwithstanding any other provision of this Agreement, Artist hereby acknowledges and agrees that all decisions regarding placement and location of the Artwork are within the sole and absolute discretion of the Developer and City. Artist further acknowledges and agrees that Developer and City shall have sole and absolute discretion to make alterations to, relocate, or remove and dispose of the Artwork in their sole and absolute discretion. In the event Developer and City elect to remove and dispose of the Artwork, Developer and/or City shall, subject to the provisions of Section 9.3 of this Agreement, notify Artist at least 30-days in advance of the proposed removal and provide Artist an opportunity, at his/her sole costs, to take possession of and remove the Artwork from the Site. ARTICLE V. PARTY REPRESENTATIVES 5.1 City Representative. For the purposes of this Agreement, City's representative shall be the Director of Community Services, or such other person as the Director designates in writing (hereinafter the "City Representative"). It shall be Artist's and Developer's responsibility to assure that the City Representative is kept informed of the progress of the performance of the services and obligations more particularly described in Exhibit A, and Artist and Developer shall refer any decisions which must be made by City to the City Representative. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the City Representative. 5.2 Developer Representative. For the purposes of this Agreement, Developer's representative shall be Craig DeWitt, Director Recreation Services, or such other person as Developer designates in writing (hereinafter the "Developer Representative"). The Developer Representative shall be responsible during the term of this Agreement for directing all activities of Artist and devoting sufficient time to personally supervise the services provided by Artist hereunder. The Developer Representative shall also be responsible for overseeing and ensuring Developer's performance of its obligations under this Agreement. The Developer Representative may not be changed by Developer without the prior written consent of City. 5.3 Artist Representative. For the purposes of this Agreement, Steve Davis ("Artist") is the sole principal and representative of Artist authorized to act in his/her behalf with respect to the services specified herein and make all decisions in connection therewith. It is expressly understood that the experience, knowledge, capability and reputation of Artist were a substantial inducement for City and Developer to enter into this Agreement. Therefore, Artist shall be responsible during the term of this Agreement for performing or directing all activities of Artist and devoting sufficient time to personally perform or supervise, as appropriate, the services hereunder. Artist may not assign all or any of his/her obligations under this Agreement without the prior written approval of both City and Developer. ARTICLE VI. OWNERSHIP OF ARTWORK 6.1 Ownership of Artwork. Title to the Artwork and any construction drawings, plans, or other work product generated pursuant to this Agreement shall pass to and vest with Developer or its successor in interest to the Property upon (i) the issuance of the Notice of Completion acknowledging Final Acceptance pursuant to Section 1.9 or (ii) Termination of the Agreement as provided in Article X hereinafter. During the 25-year period provided in subsection (b) of said Section 1.9, the Artwork shall be a permanent fixed asset to the Property, and title to the Artwork shall transfer with title to the Property as an integral part of Page 5 of 20 the sale of the real property. Thereafter, upon the expiration of the 25-year period as provided in Section 1.9(b), title to the Artwork and all construction drawings, plans, or other work product generated pursuant to this Agreement shall pass to and vest in City. 6.2 Title to Intellectual Property. Title to all copyright and other intellectual property rights in the Artwork shall remain with Artist except as otherwise provided in this Agreement. Notwithstanding the foregoing, Artist, on behalf of him/herself and his/her successors, heirs and assigns, hereby grants in perpetuity to City and Developer, and their respective heirs, successors and assigns, the right to photograph, film, videotape, or otherwise depict the Artwork at any time during the term of this Agreement and to use such photographs, film, videotapes, or other depictions at any time thereafter for noncommercial purposes to promote the exhibition, the City of La Quinta, or the Project. Such uses shall give full artistic credit to Artist. ARTICLE VII. ADDITIONAL DEVELOPERS' OBLIGATIONS 7.1 Maintenance and Alteration of the Artwork. At all times during the 25-year period that title to the Artwork vests in Developer, Developer, and/or Developer's successors, heirs and assigns, shall maintain the Artwork in good condition in a location on the Property selected in concert with or approved by City. Developer shall sign and record a covenant and agreement ("Maintenance Covenant") in the form attached hereto as Exhibit E and incorporated herein by this reference. The Maintenance Covenant shall, among other requirements, ensure the proper maintenance of the Artwork and the transfer of title to the Artwork. At a minimum, Developer shall (i) maintain the Artwork in a neat, aesthetic, and orderly manner in accordance with the language recorded in the Maintenance Covenant, including, but not limited to promptly removing any graffiti or damage from the elements; (ii) obtain and maintain insurance in an amount not less than the appraised value to repair or replace the Artwork in the event of loss or damage; (iii) ensure transfer of title to the Artwork as a fixed asset on the Property. 7.2 Permanent Record. Developer shall maintain records of all activities related to this Agreement. 7.3 Location and Disposition. Developer and City shall jointly select the initial location for placement of the Artwork on the Property (the "Site Location"). After installation of the Artwork at the Site Location by Arties, Developer shall not thereafter change the location or dispose of the Artwork without the prior written consent of City. ARTICLE VIII. ADDITIONAL ARTIST OBLIGATIONS 8.1 Artist's Address. Artist shall notify City and Developer of any change in address. City or Developer shall take reasonable effort(s) to locate Artist when matters arise relating to the Artist's rights under this Agreement. 8.2 Surviving Covenants. The covenants and obligations set forth in this Article VIII shall be binding upon the parties, their heirs, legatees, executors, administrators, assigns, transferees and all their successors in interest, and City's covenants do attach and run with the Artwork and shall be binding to and until twenty (20) years after the death of the Artist unless otherwise stated herein. Upon the death of the Artist, the representative of Artist's estate shall assume the surviving covenants and obligations of Artist set forth in this Article VIII. Page 6 of 20 8.3 Independent Contractor. Artist is, and shall at all times remain as to City and Developer, a wholly independent contractor. Artist shall have no power to incur any debt, obligation, or liability on behalf of City or Developer or otherwise act as an agent of City or Developer. Neither City, Developer, nor any of their respective agents shall have control over the conduct of Artist or any of Artist's employees (if any), except as set forth in this Agreement. Artist shall not, at any time, or in any manner, represent that it or any of its officers, agents or employees are in any manner employees of City or Developer. Artist agrees to pay all required taxes on amounts paid to Artist under this Agreement, and to indemnify and hold City and Developer harmless from any and all taxes, assessments, penalties, and interest asserted against City or Developer by reason of the independent contractor relationship created by this Agreement. Artist shall fully comply with the workers' compensation law regarding Artist and its employees (if any). Artist further agrees to indemnify and hold City and Developer harmless from any failure of Artist to comply with applicable workers' compensation laws. City shall have the right to offset against the amount of any fees due to Artist under this Agreement any amount due to City or Developer from Artist as a result of Artist's failure to promptly pay to City or Developer any reimbursement or indemnification arising under this Section 8.3. ARTICLE IX. ARTIST'S RIGHTS 9.1 Identification. Developer shall, at its expense, prepare and install at the Site Location, a plaque identifying Artist, the title of the Artwork, that it is Art in Public Places funded by the City of La Quinta, and the year of completion, and shall reasonably maintain such notice in good repair for as long as the Artwork is displayed. 9.2 Repairs and Restoration. a. City and Developer shall have the right to determine, after consultation with a professional art conservator, when and if repairs and restoration to the Artwork will be made. At Developer's and City's option, Artist, during Artist's lifetime, may be given the opportunity to make or personally supervise significant repairs and restorations and shall be paid a reasonable fee for any such services, provided that Developer, City and Artist mutually agree in writing, prior to the commencement of any significant repairs or restorations, upon Artist's fee for such services. Developer and/or City shall have no obligation to utilize the services of Artist in this respect if they choose to have the repairs and restoration done by other professionals. No fees shall be paid to Artist for repair or restoration due to a breach of the representations and warranties set forth herein. b. All repairs and restorations shall be made in accordance with recognized principles of conservation. 9.3 Waiver of Rights. If any alteration is made to the Artwork without the consent of Artist, Artist shall have the right to direct the Developer to remove Artist's name from the Artwork. In connection herewith, Artist hereby acknowledges and agrees that Artist is familiar with the federal Visual Artists Rights Act (17 U.S.C. § § 106A and 1 13(d)), the California Art Preservation Act (Cal. Civil Code § 987 et seq.), and the rights and protection afforded Artist thereunder. Artist, on behalf of him/herself and on behalf of his/her successors, heirs, and assigns, hereby waives, releases and disclaims any rights, demands or claims as may arise at any time and under any circumstances against City, and its elected and appointed officials, officers and employees arising under the federal Visual Artists Rights Act (17 U.S.C. § § 106A Page 7 of 20 and 1 13(d)), the California Art Preservation Act (Cal. Civil Code § 987 et seq.), and any other local, state, federal or international laws that convey rights of the same nature, or any other type of moral right protecting the integrity of works of art to the fullest extent permitted by law. Without limiting the generality of the foregoing, Artist expressly waives any rights under the federal Visual Artists Rights Act (17 U.S.C. §§ 106A and 113(d)), the California Art Preservation Act (Cal. Civil Code § 987 et seq.), and any other local, state, federal or international laws relating to the location, placement, or removal and disposal of the Artwork. ARTICLE X. ASSIGNMENT OR TRANSFER 10.1 Neither Artist nor Developer shall assign or transfer any interest in this Agreement without the prior written consent of City. If the assignment is approved the parties shall enter an assignment and assumption agreement. Any attempt by Developer or Artist to assign, transfer, or subcontract any rights, duties, or obligations arising hereunder without city's prior written consent shall be null, void and of no effect. ARTICLE XI. TERMINATION 11.1 Developer and City may, at either their option, by written notice to Artist, terminate this Agreement either (a) upon the failure by Artist to perform any of its obligations hereunder in accordance with the terms hereof or any other breach by Artist of the terms of this Agreement, and such failure or breach continues uncured for fifteen (15) days following notice thereof from City to Artist ("Termination for Default"), or (b) at any other time in the sole and absolute discretion of City and Developer, acting together ("Discretionary Termination"). Termination for Default and Discretionary Termination are sometimes hereinafter collectively referred to as "Termination." Upon Termination, except as provided in this Article X, all parties shall be released from all further obligations and liability hereunder. Effective upon a Termination, the Artwork, or so much thereof or has then been completed, shall be transferred to and shall belong to Developer. In the event of a Discretionary Termination, Developer shall reimburse City for the full amount of Art in Public Places funding that was provided by City for the Artwork. In such event and upon Artist's written request, Developer shall remove Artist's name from the Artwork. ARTICLE XII. INSURANCE AND INDEMNIFICATION 12.1 Insurance. Prior to commencing any work under this Agreement, and throughout the duration of the term of this Agreement, Artist shall procure and maintain, at its sole cost, and submit concurrently with its execution of this Agreement, insurance as described herein. All insurance coverage required by this Agreement shall be placed with insurers authorized to do business in the State of California with an A.M. Best and Company rating level of A- or better, Class VI or better, unless otherwise approved by City's Risk Manager in writing. 12.1.1. Minimum Coverage. Insurance shall include the following (or broader) coverage: a. Insurance Services Office Commercial General Liability coverage "occurrence" form CG 00 01 or its exact equivalent with an edition date prior to 2004 and with minimum limits of $1,000,000 per occurrence and $2,000,000 in the aggregate. Page 8 of 20 12.1.2. Required Endorsements. Liability insurance policies required to be provided by Artist hereunder shall contain or be endorsed to contain the following provisions: a. City, Developer, its employees, officials, agents and member agencies shall be covered as additional insureds. Coverage shall apply to any and all liability arising out of the Work or related to the Contract. Additional insured status under the general liability requirement shall be provided on Insurance Services Office Form CG 20 10 with an edition date prior to 2004, or its equivalent. Additional insured status for completed operations shall be provided either in the additional insured form or through another endorsement such as CG 20 37 with an edition date prior to 2004. b. General liability insurance shall apply to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. Coverage will not be limited to City's or Developer's vicarious liability. C. Liability coverage shall be primary and non-contributing with any insurance maintained by City or Developer. d. Each policy required hereunder, and the associated evidence of coverage (including employer's liability policies), shall provide that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after written notice has been given to City and Developer. e. No liability insurance coverage provided to comply with this Agreement shall prohibit Artist, or Artist's employees, or agents, from waiving the right of recovery prior to a loss. Artist waives its right of recovery against.City and Developer. 12.1.3. Verification of Coverage. Artist shall deposit with City certificates of insurance evidencing the coverage required hereunder and all required endorsements. 12.1.4. No Waiver or Obligation. There shall be no recourse against City or Developer for payment of premiums or other amounts with respect to the insurance required to be provided by Artist hereunder. Any failure, actual or alleged, on the part of City or Developer to monitor compliance with these requirements will not be deemed as a waiver of any rights on the part of City or Developer. City and Developer have no additional obligations by virtue of requiring the insurance set forth herein. In the event any policy of insurance required under this Agreement does not comply with these requirements or is canceled and not replaced, City and Developer have the right but not the duty to obtain the insurance it deems necessary and any premium paid by City or Developer will be promptly reimbursed by Artist or City will withhold amounts sufficient to pay premium from Artist payments. 12.1.5. Prompt Notice. Artist agrees to provide immediate notice to City and Developer of any claim or loss against Artist arising out of the work performed under this agreement. City and Developer assume no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City or Developer. Page 9 of 20 12.1.6. Subcontractors. Artist shall include all subcontractors, if any, as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor approved by City and Developer. All coverages for subcontractors, if any, shall be subject to all of the requirements stated herein unless otherwise approved in advance in writing by City's Risk Manager. 12.2 Indemnification. 12.2.1. Indemnification. To the fullest extent permitted by law, Artist shall indemnify, protect, defend and hold harmless City and Developer and any and all of its officials, employees and agents ("Indemnified Parties") from and against any and all liability, claims, suits, actions arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including, without limitation, incidental and consequential damages, actual attorney fees incurred by City and Developer, court costs, interest, defense costs including fees of expert Artists or expert witnesses incurred in connection therewith and any other costs or expenses of any kind whatsoever incurred in relation to, as a consequence of or arising out of or in any way attributable, in whole or in part, to Artist's performance of this Agreement. All obligations under this provision are to be paid by Artist as City and Developer incur them. 12.2.2Exception to Artist's Obligation to Indemnify. Without affecting the rights of City or Developer under any provision of this Agreement or this section, Artist shall not be required to indemnify and hold harmless City or Developer as set forth above for liability attributable to the sole fault of City or Developer, provided such sole fault is determined by agreement between the parties or by the findings of a court of competent jurisdiction. This exception will apply only in instances where City or Developer is shown to have been solely at fault and not in instances where Artist is solely or partially at fault or in instances where City's or Developer's fault accounts for only a percentage of the liability involved. In those instances, the obligation of Artist will be all-inclusive and City and Developer will be indemnified for all liability incurred, even though a percentage of the liability is attributable to conduct of City or Developer. 12.2.3Artist Acknowledgment. Artist acknowledges that its obligation pursuant to this section extends to liability attributable to City and Developer, if that liability is less than the sole fault of City or Developer. 12.2.41ndemnity Provisions for Subcontractors. Artist agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subcontractor, sub tier Artist or any other person or entity involved by, for, with or on behalf of Artist in the performance of this Agreement. In the event Artist fails to obtain such indemnity obligations from others as required here, Artist agrees to be fully responsible according to the terms of this section. 12.2.5 No Waiver; Survival. Failure of City or Developer to monitor compliance with the requirements of this Section 11.2 imposes no additional obligations on City or Developer and will in no way act as a waiver of any rights hereunder. Artist's obligation to indemnify and defend City and Developer as set forth herein is binding on the successors, assigns, or heirs of Artist and shall survive the termination of this Agreement or this section. Page 10 of 20 12.3 Remedies. In addition to any other remedies City and Developer may have if Artist fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City or Developer may, at its sole option: a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement. b. Order Artist to stop work under this Agreement and/or withhold any payment(s) which become due to Artist hereunder until Artist demonstrates compliance with the requirements hereof. Terminate this Agreement. Exercise of any of the above remedies, however, is an alternative to any other remedies City or Developer may have. The above remedies are not the exclusive remedies for Artist's failure to maintain or secure appropriate policies or endorsements. Nothing herein contained shall be construed as limiting in any way the extent to which Artist may be held responsible for payments of damages to persons or property resulting from Artist's or its subcontractors' performance of work under this Agreement. ARTICLE XIII. GENERAL PROVISIONS 13.1 Notices. All notices, requests, demands and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given (a) upon the delivery or receipt thereof, as the case may be, if delivered personally or recognized overnight courier service; or (b) on the third business day following deposit in the United States mail, sent by registered or certified mail, return receipt requested, postage prepaid, to the addresses set forth below, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this section. All notices shall be addressed as follows: CITY: City of La Quinta Attn: Community Services Director P.O. Box 1504 78495 Calle Tampico La Quinta, CA 92247-1504 (760) 777-7032 ARTIST: Steve Davis 4450 Blanton Heights Road Eugene, OR 97405 (541)914-2876 DEVELOPER: Desert Recreation District Attn: Director of Recreation Services 45305 Oasis Street Indio, CA 92201 (760)347-3484 13.2 Nondiscrimination. In the performance of the services under this Agreement, neither Artist nor City nor Developer shall discriminate as to race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation. In addition, Artist shall comply with the equality of employment opportunity provisions of State and local laws and regulations as presently existing or hereafter amended. Page 11 of 20 13.3 Entire Agreement. This Agreement and all exhibits attached hereto and incorporated herein by specific reference, embodies the entire integrated agreement and understanding between the parties hereto. There are no other agreements or understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby, except as set forth herein above. 13.4 Modification. This Agreement and each of the terms embodied herein may be amended, altered, changed, or modified only by a written instrument signed by each party hereto and approved by appropriate action of City and Developer. 13.5 Waiver. No waiver of performance by any party hereto shall be construed as or operate as a waiver of any subsequent default of any terms, covenants and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 13.6 Governing Law; Venue. This Agreement, regardless of where executed or performed, shall be governed by and construed in accordance with the laws of the State of California. In addition to any other rights or remedies and subject to the restrictions otherwise set forth in this Agreement, any party hereto may institute legal action to seek specific performance of the terms of this Agreement, to recover damages, or to obtain any other remedy, at law or in equity, consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Riverside, in the Indio Branch municipal court, or in the Federal District Court in the district of California, which includes Riverside County. 13.7 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of City, Developer, and Artist, and their respective heirs, personal representatives, successors and permitted assigns. 13.8 Severance. If a court of competent jurisdiction determines that any provision(s) of this Agreement is invalid, void, or illegal, such provision(s) shall be severed from the Agreement and shall in no way affect, impair or invalidate any other provision hereof, and such remaining provisions shall remain in full force and effect. 13.9 Substitution. Whenever in the specifications of materials or process the Scope of Services indicates or specifies materials or processes by patent or proprietary name or by name of manufacturer, such specification shall be deemed to be used for the purpose of facilitating description of the material and/or process desired, and shall be deemed to be followed by the words "OR EQUAL," and Artist may offer any material or process which shall be equal in every respect to that so indicated or specified. Artist shall not offer any substitute material or process if a substitute so offered by Artist is not found to be equal to that so indicated or specified by name, if one only be so specified or named, or, if more than one be so specified or named, then such one as shall be specified in the proposal, or if none be so specified, then such one as shall be required by City or Developer. 13.10 Effective Date. Unless a different date is provided in this Agreement, the Effective Date shall be the latest Date of Execution, hereinafter set forth below the names of the signature hereto. Should Artist fail to enter a Date of Execution, the Effective Date shall be the Date of Execution by City. Page 12 of 20 13.11 Force Majeure. In addition to specific provisions of Agreement, performance by any party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lock -outs, riots, floods, earthquakes, fires, casualties, supernatural causes, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions or priority, litigation, unusually severe weather, inability to secure necessary labor, materials or tools, delays of any contractor, subcontractor or supplies, acts of the other party, acts or failure to act of any public or governmental agency or entity, including, without limitation, unreasonable delays in the processing and issuance of required permits for the installation of the Artwork by Artist (except that any act or failure to act of City shall not excuse performance by City) or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. Notwithstanding the foregoing, market and economic conditions shall not entitle Artist to an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within ten (10) days of knowledge of the commencement of the cause. In addition, times of performance under this Agreement may be extended by mutual written agreement by Developer, City and Artist. [THIS SPACE INTENTIONALLY LEFT BLANK - SIGNATURES BEGIN ON NEXT PAGE] Page 13 of 20 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. CITY: CITY OF LA QUINTA, a California Municipal Corporation THOMAS P. GENOVESE, City Manager ATTEST - VERONICA MONTECINO, CMC, City Clerk City of La Quinta, California APPROVED ASTO FORM: M� KATHERINE JEN, City City of La Quinta, rAlifornia DEVELOPER: DESERT RECREATION DISTRICT By: vin Kalmari ARTIST: STEVE DAVIS Title: Owner State License No. 100490316 Page 14 of 20 EXHIBIT A SCOPE OF DESIGN BUILD SERVICES SCOPE OF WORK a. Artist shall furnish all labor, material, tools, equipment, etc., required to design the Artwork in accordance with the quality level and intent of the concept drawings as prepared by Artist and approved by City and Developer. b. Artist shall complete the design in sufficient scale and detail as required by City and Developer authorities for approval. C. Artist's design and specifications have been approved by City and Developer. No changes shall be made without approval of City and Developer. IL GENERAL ITEMS OF INCLUSION: The work shall include but not necessarily be limited to the following: a. Artist shall examine or cause to be examined all supporting and adjacent surfaces and record any defects to Developer and City prior to installing any material. The installation of any material constitutes the Artist's complete acceptance of all substrates as compatible with the work under this agreement. b. Artist is responsible for all repairs or replacement of any existing property or work which is damaged as a result of the performance of the work under this Agreement. C. Artist shall provide for all unloading, hoisting, scaffolding, and bracing for the Artwork. d. Artist shall provide all drilling, coring, cutting, fastening required for the artwork. III. SPECIFIC ITEMS OF INCLUSION Copper water feature "LaQscape" to be delivered and installed, weighing approximately 200 lbs., measuring approximately 2.5'h x 8'1" x 2'w. "LaQscape" will be made using all new copper (.043 gauge thickness), with the copper basin using .031 gauge for the base and .043 gauge for the sides for strength. The agave sculptures will have be given a green patina to mimic their natural color. Each agave will be a separate fountain with its own pump that will be constructed with copper tubing from the center of the fountain down through the middle of the fountain and is connected with plastic tubing which connects directly to the pump. The basin will include stones native to the desert. IV. CARE & CLEANING OF PROPOSED ARTWORK One of the greatest qualities of copper is that it is timeless. The minerals in the water help determine how copper may change over the years, which is one of its beauties. Periodically (once every other month) a small amount of chlorine will be added to the water to prevent any algae growth. A drop or two of water softener should be added to neutralize hard water. The water can be changed after a few months, or water just added to account for evaporation. If Page 15 of 20 water is replaced, remove with a wet -vac and replace with fresh water, a drop or two of water softener and a small amount of bleach. The pumps will last between 3 and 7 years. Replacements are available from the artist. The artist will supply pump specifications so replacement pumps can be purchased from another vendor if preferred. The Developer shall include a plaque indicating the project is Art in Public Placed funded by the City of La Quinta. The Developer and Artist will hold a dedication in tandem with the grand opening of the Wellness Center. Page 16 of 20 EXHIBIT B SCHEDULE OF PERFORMANCE SCHEDULING: Delivery and installation shall be completed by July 8, 2011. Page 17 of 20 EXHIBIT C SCHEDULE OF COMPENSATION SCHEDULE OF PAYMENT TO ARTIST BY CITY: City shall pay Artist a deposit in the amount of: $3,000 City shall pay Artist after completion: $7,100 Total Not to Exceed: $10,100 Page 18 of 20 EXHIBIT D NOTICE OF COMPLETION FOR ARTWORK Pieces of Artwork: LaQscape WHEREAS, by that certain Art Purchase Agreement dated May 18, 2011 ("Agreement'), The City of La Quinta, a California municipal corporation ("City") contracted with Desert Recreation District ("Developer") and Steve Davis ("Artist") to provide certain "Artwork" (as defined in the Agreement); and, WHEREAS, as referenced in the Agreement, City and Developer shall furnish Artist with a Notice of Completion upon completion of the fabrication and installation of the Artwork; and, WHEREAS, such certificate shall be conclusive determination of satisfactory completion of the fabrication and installation of the Artwork, as required by the Agreement, has been satisfactorily completed. NOW, THEREFORE, the parties hereto certify as follows: 1. As provided in the Agreement, City and Developer do hereby certify that the fabrication and installation of the Artwork has been fully performed and completed. 2. Nothing contained in this instrument shall modify in any other way any executory portions of the Agreement. IN WITNESS WHEREOF, City has executed this certificate this 6tb day of July, 2011. CITY OF LA IQUINTA, a California Municipal Corporation 32 Director Page 19 of 20 EXHIBIT E PUBLIC ART MAINTENANCE AGREEMENT Pursuant to Article VII. Additional Developers' Obligation of this Art Purchase Agreement, Developer is obligated to maintain certain Artwork as follows: 1. Maintenance of the Public Art. Developer, its successors, assigns, and any successor in interest to the Property, covenants and agrees to maintain the Artwork in accordance with the "Reasonable Standards," as hereinafter defined. To accomplish the maintenance, the Developer shall either staff or contract with qualified and if required by law, licensed personnel to perform the maintenance work, including the provision of labor, equipment, materials, support facilities, and any and all other items necessary to comply with the requirements of this Agreement. The obligations of Developer regarding maintenance of the Artwork in accordance with this paragraph 1 are referred to herein as the "Developer Obligations." 2. Reasonable Standards. The following standards ("Reasonable Standards") shall be complied with by the Developer and its maintenance staff, contractors or subcontractors: A. Maintenance shall include, but not be limited to: keeping the art and water feature clear and free of calcium deposits and remove algae in holding ponds; and keeping water in the unit and checking the motors on a monthly basis to assure it is operating properly. B. The Artwork shall be maintained in accordance with the custom and practice generally applicable to comparable high quality commercial properties located within the City, including but not limited to, periodic cleaning of all exterior surfaces. 3. Failure to Maintain Artwork. In the event the Developer does not maintain the Artwork in the manner set forth herein and in accordance with Reasonable Standards, the City shall have the right to maintain the Artwork, or to contract for the correction of such deficiencies, after written notice to the Developer. However, prior to taking any such action, the City agrees to notify the Developer in writing if the condition of the Artwork does not meet with Reasonable Standards and to specify the deficiencies and the actions required to be taken by the Developer to cure the deficiencies. Upon notification of any maintenance deficiency, the Developer shall have thirty (30) days within which to commence, and thereafter diligently correct, remedy or cure the deficiency. If the written notification states the problem is urgent and relates to public health and safety, the Developer shall have forty-eight (48) hours to commence to rectify the problem. A. Right to Maintain. In the event the Developer fails to correct, remedy, or cure or has not commenced correcting, remedying or curing such maintenance deficiency after notification and after the period of correction has lapsed, then the City shall have the right to maintain the Artwork. The Developer agrees to pay the City such charges and costs incurred by the City in curing such maintenance deficiency. DEVELOPER: Dated: `t' Zl • Zol DESERT RECREATION DISTRICT By: c J )IIKevin K-a'l-rTTn Page 20 of 20 . TT D - I r ,1 wr lu" Jon CERTIFICATE OF LIABILITY INSURANCE W" DATE1alas os�12,11 THIS CERTIFICATE 19 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: N the certificate holder Is an ADDITIONAL INSURED, On pollcy(les) must be endorsed. N SUBROGATION 6 WANED, 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 endoreeme e . PRODUCER 888-693-7892 NWC Insurance Services 888�77-7598 PO BOX 7807 ACT NAMD PNON6 FAX Santa Rosa, CA 95407 David Greesnlcklaus ADDRESS: m GOWIT-1 MSIJRERffii AFFORDING COVERAGE RAN:* INSURED Go With The Flow Copper Water INEURERA: RLI Insurance Company Features - Steve Davis 4450 Blanton Heights Road Eugene, OR 97405 INSURER e : INBUNMC: INDORSED: WSURERE: INBURSE F: COwFRAI%FS CERTIFICATE IMUMRFR- REVISION NUMRFR- 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. 91. TYPE OF INSURANCE POLICY NUMBER N LISTS A A GENERAL LIABILITY X COMMERCIAL GENERALLIABLITY CWMSJAADE 7x OCCUR X BuslinessOwners X BOPIOI9014 BOPIOIS014 03104111 03/04M1 03104M2 03ID4M2 EACH OCCURRENCE s 1,DOD,O MISS m EearmnLe a 60'OOC MED EXP(AIN am paw) $ 5,00 PERSONAL& ADV INJURY a 1,000,00 OENERALAOOREGATE a 2,000,0 GENLAGGREGATE LIMIT APPLIES PER X POLICY 7 PRO- LOC PRODUCTS -COMPIOP AGO a 1,000,00 S AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NONLYaiEDAUTOS COMBINED SINGLE LIMIT me Debase) s BODILY INJURY(Pw pawn) a BODILY INJURY(PwacWArM a PROPERTY DAMAGE Tor aaia6rm a a s UMBRELALL40 EXCESS IJAS OCCUR CLAIMS -MADE EACH OCCURRENCE a AGGREGATE a DEDUCTIBLE RETENTION 5 S a WORKSIa COMPENSATION AND E MPLOYEmr LIABILITY ANY PROPFUETORNARTNERIEXEWnVEYa OFMCEPMEMBER EXCLUDED? (MWANNY In NH) N gp��R, OF�ERAT Bpelpp NfA WC BTATTf- TTL E.L. EACH ACCIDENT a EL.DIMASE-EAEMMOYE a EL.MEASE-POLICY LIMB S A BPP SOP1019014 0WWO 03I04M1 BPP _ 16 OEDCN OP OPSUI /IACATKINS/VBI ACORD701 RaealN b,NRNNeepwebrwM" The CddvvLa Qulntaf employees, oC as■■��TTt1�� and ragencles are addltionN insureds, per endorsement to VeoGued by carrier. CITYOFL SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE DATE THEREOF,The CRY Of La Quints - ACCORDANCETION WITH THE OLICYY PROVISSIOTS& WILL BE DELIVERED IN 78495 Calla Tampico La Quints, CA 92247.1504 AUTHORIZEn REPmOffATM David Grossnicklaus All rlahts ACORD 25 (200911119) The ACORD name and logo are registered marks of ACORD Z00/T000 SNI B,LV,LSTIV £945Zt£T65 XVd 0: 60 TTOZ/OT/40 Policy Number: BOP1019014 RLI Insurance Company THIS ENDORSEMENT CHANGES YOUR COVERAGE. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - STATE OR POLITICAL SUBDIVISIONS PERMITS RELATING TO PREMISES This endorsement modifies insurance provided under the foDowing: BUSINESSOWNERS COVERAGE FORM SCHEDULE State or Political Subdivislon: CITY OF LA QUINTA PO BOX 15D4 78495 CALLE TAMPICO LA QUINTA, CA92247-1504 (If no. entry appears above, Information required to complete this endorsement will be shown In the Declarations as applicable to this endorsement) Paragraph C. Who Is An Insured in SECTION II - LIABILRY is amended to Include as an Insured any state or political subdMsion shown In the Schedule, subject to the following additional provision: This Insurance applies only with respect to the following hazards for which the state or political subdivision has Issued a permit In connection with premises you own, rent, or control and to which this Insurance applies: The existence, maintenance, repair, constructlon, erection, or removal of advertising signs, awnings, canopies, cellar entrances, coal holes, driveways, manholes, marquees, hoist away openings, sidewalk vaults, street banners, or decorations. ALL OTHER TERMS AND CONDITIONS OF THIS POLICY REMAIN UNCHANGED. BOP 407 (07102) Contains copyrighted material of Insurance Services OAic% Inc. Page 1 of 1 900/90018 SNI BZtlZSTIV .99t9ZtCTV9 XVd 9T:90 TTOZ/LT/SO _/A'1/11 ul-1u; A^ Ro- CERTIFICATE OF LIABILITY INSURANCE li�' DATE""ID""YYY' 05/12/11 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 to an ADDITIONAL INSURED, the policy(les) must be endorsed. H SUBROGATION 13 WANED, subject to Via terms and conditions of the policy, certain policies may require an endomanenL A statement on this certificate does not corder rights to the conMcote holder In lieu of such endomeme s . PRODUCER BU-693-788 NWC Insurance Services PO BOX 7307 866 577-7595 Santa Rose, CA 95407 David Grosenteklaua cT ruca; PHONE PAX me: P GOWIT-1 DIBII AFFORDING COVERAGE - RAIC6 INSURED Go With The Flow Copper Water Features - Steve Davis 4450 Blanton Heights Road Eugene, OR 97405 nownsR A: RLI Insurance Comparry IxeuReaa: INBURERC: NBDRERO: D*WMR E: NBORERF: LAJYLJ UlZti UC I IFIGATE NUMBER_ RF inm N1IMRGQ- 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 SHORN MAY HAVE BEEN REDUCED BY PAID CLAIMS. TR TYPE OF INSURANCE POLICY NUMBER Y VFfmmmotyrm 03JM2 11M118 A A GENERAL LABILITY XCOIERCIAGENRLeIL CWMSMADE XOOCCUR X Business Owners X BOP7018014 SOP1019014 03/04/11 EACH OCCURRENCE S 1100010 PREMISES (Es om„wae $ 5010 MEDEXP(Any " ) S 5100 PERSONAL It ADV INJURY S 1,000,00 GENERAL AGGREGATE S 2,000100 GENLAGGREGATE LOW APPLIES PER JIMX POLICY PRO- LOG PRODUCTS -COMROP AGG S 1,000.00 S AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NONONMEDAUTOS COMBINED SINGLE LIMIT (Ea eotltlM) $ BODILY INJURY (PW paman7 d BODILY NJURY(PW AWM) S PROPERTY DAMAGE IPseaddeml S S e "YBRELIALAB EXCESS LAB OCCUR CLAIMS- AUE EACHOCCUIRENCE d AGGREGATE a DEDUCTIBLE RETENTION I S 4 wDRaEO COMPOWYM AND EMPLOYERS LIABILITY YIN ANY PROPRIETORRARTNEREXECUTNE❑ OFFICEW"EMBER EXCLUDED? (illoxi nIn NMI Myyeer1 Cmcb WOMO OES(:RWTION OF OPEMTIONS ENav NIA 71f E.L EACH ACCIDENT $ E.L. Dk9EASE• EA EMPLOYEE-1 E.L. DISEASE •POLICY LIAIR 6 A BPP BOPIOI9014 01"10 1 O M4111 BPP 10, DEBCRIp�ox OFOPEATgxa�/LGcuTpNB YBIJOU" Naee ACORDIOI.Add and Ramoft Wodulk Mmaeapsagro*dmM Desert Re =on Dutr1DDm emp9Oyew, U c1a11, aggenOB and member agencies are additional insureds, per Endorsement. 0 be Issued by carrier. DESERTR SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Desert Recreation District THE EKPNATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISION& Director Recreation Services 45305 Oasis Street AUmOIl® RM4=EiTATNE Indio, CA 92201 David Grossnicldaue ACORD 25 (2008109) The ACORD name and logo are registered marks of ACORD Z00/Z0018 SNI B,LV.LSI7V £969Z6£T6S %Vol. LY:60 TTOZ/9T/90 Policy Number: BOP1019014 RLI Insurance Company THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - MANAGERS OR LESSORS OF PREMISES This endorsement modifies Insurance provided under the following: BUSINESSOWNERS COVERAGE FORM SCHEDULE A. Designation Of Premises (Part Leased To You): B. Name Of Person Or Organisation (Additional Insured): DESERT RECREATION DISTRICT ATTN: DIR.RECREATION SERVICES 45305 OASIS STREET INDIO CA 92201 .Information required to complete this schedule, if not shown above, will be shown in the Declarations. A. The following Is added to Paragraph C. Who Is An Insured in Section 11- Llabill1 r: 3. The person or organization shown in the Sched- ule is also an Insured, but only with respect to Ilabfiity arising out of the ownership, maintenance or use of that part of the promises leased to you and shown in the Schedule. B. The following exclusions are added to Section If - Liability: This Insurance does not apply to: 1. Any "oocurrence" that takes place after you cease to be a tenant In the premises described In the Schedule. Z Structural alterations, new construction or demo- lition operations performed by or for the person or organization designated In the Schedule. Page 1 of 1 900/90012 SNI 21IVIS11Y £96SUM9 %Vd 61:90 TTOZ/LT/90 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Veronica J. Montecino, City Clerk gA City of La Quinta P. 0. Box 1504 La Quinta CA 92247-1504 NO FEE REQUIRED FOR RECORDATION PURSUANT TO GOVERNMENT CODE SECTION 6103 DOC # 2011-0343826 '08/05/2011 09:25A Fee:NC Page 1 of 5 i Recorded in Official Records County of Riverside Larry W. Ward Assessor, County Clerk d Recorder 111111111111111111111111111111111111111111111111 U I PAGU SIZE I DA I MISC I LONG RFD COPY L 1 465 1 426 1 PCORI NCORI SMF CTY I UNI PUBLIC ART MAINTENANCE AGREEMENT 11-07-007-Lq THIS PUBLIC ART MAINTENANCE AGREEMENT ("Maintenance Agreement") is made as of July 6, 2011, by and between the CITY OF LA QUINTA, a California Municipal Corporation (the "City"), and DESERT RECREATION DISTRICT (the "Owner"), with respect to the following facts: A. Owner owns fee title to certain real property (the "Property") located in the City of La Quinta, California, generally located at the La Quinta Community Center, Wellness Center, 77865 Avenida Montezuma in the City of La Quinta, California and more fully and legally described in Exhibit A, attached hereto and incorporated herein by this reference. B. Owner has previously requested and received approval to construct LaQscape (the "Project") on the Property. The Project is subject to the public artwork requirements of the City of La Quinta Art in Public Places Program set forth in Chapter 2.65 of the La Quinta Municipal Code (the "Municipal Code"). C. To satisfy the Project's public artwork requirement pursuant to said Chapter 2.65, Owner and City entered into that certain Art Purchase Agreement (the "Artwork Agreement") dated May 18, 2011. D. Pursuant to Article VII of the Artwork Agreement,- Owner is obligated to maintain the Artwork and to ensure that the Artwork remains a permanent fixed asset to the Property until title to the Artwork transfer to City as provided in the Artwork Agreement. NOW, THEREFORE, the parties agree as follows: 1. Title and Location of Artwork. During the term of this Maintenance Agreement, the Artwork shall remain on the Property at a location approved by City and shall further remain a permanent fixed asset on the Property until title to the Artwork passes to City as provided in the Artwork Agreement (the "Fixed Term"). During the 25-year Fixed Term, title to the Artwork shall transfer with title to the Property as an integral part of the sale of the Property. At the conclusion of the 25-year period specified in the Artwork Agreement, title to the Artwork shall pass to and vest in City, at which time this Maintenance Agreement shall terminate by its own terms. The Artwork shall not be relocated on the Property or removed and disposed of without the prior written consent of City. 2. Maintenance of the Artwork. Owner, its successors, assigns, and any successor in interest to the Property, covenants and agrees to maintain the Artwork in accordance with the "Reasonable Standards," as hereinafter defined. To accomplish the maintenance, Owner shall either staff or contract with qualified and, if required by law, licensed personnel to perform the maintenance work, including the provision of labor, equipment, materials, support facilities, and any and all other items necessary to comply with the requirements of this Maintenance Agreement. The obligations of Owner regarding maintenance of the Artwork in accordance with this paragraph 2 are referred to herein as the "Owner Obligations." 3. Reasonable Standards. The following standards ("Reasonable Standards") shall be complied with by Owner and its maintenance staff, contractors or subcontractors: A. Maintenance shall include, but not be limited to: keeping the art and water feature clear and free of calcium deposits and remove algae in holding ponds; and keeping water in the unit and checking motors on monthly basis to assure it is operating properly. B. The Artwork shall be maintained in accordance with the custom and practice generally applicable to comparable high quality commercial properties located within City, including but not limited to, periodic cleaning of all exterior surfaces. 4. Failure to Maintain Artwork. In the event Owner does not maintain the Artwork in the manner set forth herein and in accordance with Reasonable Standards, City shall have the right to maintain the Artwork, or to contract for the correction of such deficiencies, after written notice to Owner. However, prior to taking any such action, City agrees to notify Owner in writing if the condition of the Artwork does not meet with Reasonable Standards and to specify the deficiencies and the actions required to be taken by Owner to cure the deficiencies. Upon notification of any maintenance deficiency, Owner shall have thirty (30) days within which to commence, and thereafter diligently correct, remedy or cure the deficiency. If the written notification states the problem is urgent and relates to public health and safety, Owner shall have forty-eight (48) hours to commence to rectify the problem. In the event Owner fails to correct, remedy, or cure or has not commenced correcting, remedying or curing such maintenance deficiency after notification and after the period of correction has lapsed, then City shall have the right to maintain the Artwork. Owner agrees to pay City such charges and costs incurred by City in curing such maintenance deficiency. 5. Term and Termination. This Maintenance Agreement shall commence on the first set forth above (the "Effective Date") and shall remain in full force and effect until title to the Artwork passes to and vests in City as provided in the Artwork Agreement or the year 2036 ('Term"). Notwithstanding the foregoing, the Maintenance Agreement may be terminated with the written consent of City if the related Artwork Agreement has been terminated. In the event the City subsequently determines in the exercise of its reasonable discretion, whether at the request of Owner or otherwise, that the obligations imposed upon Owner by this Maintenance Agreement are no longer required, City will execute instruments in recordable form releasing Owner and its successors in interest from any liability under this Maintenance Agreement. IN WITNESS WHEREOF, City and Owner have executed this Maintenance Agreement as of the date set forth opposite their respective signatures. JtJA 2011 I_1 VERONICA M,,,QNTECINO, CMC, City Clerk City of La Winta, California CITY OF LA QUINTA, a California Municipal Corpz-- orati�on THOMAS P. GENOVESE, City Manager APPROVED AS TO FORM: By: k — ZF'KKTHERINE JENS City Attorney City of La Quinta, C ornia DESERT RECREATION DISTRICT By: KEJ1►J kALMAN DISTRfGr GE -"?,AL MAN,WER State of California ) County of Q "`�) OnN. ,before me, '��1' n_� Notary Public, personally appeared 2 V in 4� j+"riv3 who proved to me on the basis of satisfactory evidence to be the person($) whose name!$) is/are subscribed to the within instrument, and acknowledged to me that he/sheki•rey' executed the same in his/hefkheir authorized capacity(iesi, and that by his/hefM1W signatureo) on the instrument the person(, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State o_f_California_that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Newry FWk • Cdoonds A' a — co" I (seal) State of California 1 County of R(JERStPe 1 On Jam! 2011 before me, SUSArJ MAY5eLS Notary Public, personally appeared -HdMAS f. 66t40465 E who proved to me on the basis of satisfactory evidence to be the person(&) whose name(*) is/me subscribed to the within instrument, and acknowledged to me that he/shook" executed the same in his/hoWKW& authorized capacity(iw), and that by hishko *air signature(*) on the instrument the person(%), or the entity upon behalf of which the person(*) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. � SLS U Ocg Np i aY4ag4E799 WITNESS my hand and official seal. NOTAR PUBLIC•GLLIFORMAI g RNERSIDE COIARY ' D E fires APR 13 1p13 Signature (seal) Exhibit A LEGAL DESCRIPTION BLKS 130 & 131 MB 018/082 SANTA CARMELITA AT VALE LA QUINTA NO 14.