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Washington-Adams/Art Maintenance 00ART MAINTENANCE AGREEMENT THIS ART MAINTENANCE AGREEMENT (the "Agreement") is entered into this I D day o%!, 2000, by and between THE CITY OF LA QUINTA, a California municipal corporation (he "City"), and Washington/Adams, Partnership (Developer). RECITALS A. The Developer has entered into an ART PURCHASE AGREEMENT with the City to provide an art piece on the northeast corner of Highway 111 and Washington Street, effective September 6, 1996 (Exhibit A). The ART PURCHASE AGREEMENT states in section 6.4 (a) that "the Developer shall maintain the Artwork in a manner that the City determines appropriate at its sole discretion". Article XIII of the ART PURCHASE AGREEMENT states that modifications of the terms of the Agreement shall valid when made in writing and signed by each party hereto and approved by appropriate fiction of the City. NOW, THEREFORE, the parties hereto, for the consideration and under the conditions hereinafter set forth, hereby mutually agree as follows: ARTICLE I. SCOPE OF SERVICES 1.1 Maintenance of the Artwork. The City shall be responsible for the lighting system contained within the artwork. All costs associated with the maintenance of the lighting system shall be borne by the City. The Developer agrees to provide all necessary information to the City regarding the supplier in which components of the lighting system may be purchased. All other related maintenance of the artwork shall remain the responsibility of the Developer, as stated in the ART PURCHASE AGREEMENT. The ART MAINTENANCE AGREEMENT shall run concurrent with the terms of the ART PURCHASE AGREEMENT. As stated in the ART PURCHASE AGREEMENT, Section 1.6. (b) Final Acceptance by the City of the ownership of the Artwork will occur at the completion of twenty-five years (25) or the year 2021. At that time the ownership and responsibility for the Artwork will rest with the City of La Quinta. ARTICLE II. NON-DISCRIMINATION In carry:ate g out the performance of the services designated, the Developer, and the City shcrimi all not disas to race, color, creed, religion, marital status, national origin or ancestry. ARTICLE III. ENTIRE AGREEMENT This Ag eement, consisting of 4 pages plus exhibit A consisting of 18 pages embodies a supplemental agreement to the ART PURCHASE AGREEMENT, as an A:\Art Maintenance Agreement Short Version.wpd 1 understanding between they parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby, except as set forth hereinabove. ARTICLE IV. MODIFICATION No alterati n, change or modification of the terms of the Agreement shall be valid unless made in writing an signed by each party hereto and approved by appropriate action of th e City. ARTICLE V. WAIVER No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants and conditions of this Agreement. ARTICLE VI. GOVERNING LAW 6.1 This Agreement, regardless of where executed or performed, shall be governed by and construed in accordance with the laws of the State of California. 6.2 In addition to any other rights or remedies and subject to the restrictions otherwise set forth in this Agreement, either party 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 an appropriate Riverside County municipal court, or in the FederalDistrict Court in the district of California which includes Riverside County. 6.3 If any party y to this Agreement brings a legal action or proceeding against another party to enforce the provisions of this Agreement, or on account of a claim or dispute arising out of this Agreement, then the prevailing party in such arbitration or legal action or proceeding shall be entitled to reimbursement by the other party of the legal fees and costs, including reasonable attorney fees, incurred by the prevailing party in connection with the legal action or proceeding. ARTICLE VII. HEIRS AND ASSIGNS This Agreement shall be binding upon and shall inure to the benefit of the partiest, and their respective heirs, personal representatives, successors and permitted assigns. ARTICLE VIII. NOTICES All notices, requests, demands and other communications which are required or permitted to be given udder this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent A:\Art Maintenance Agreement Sh�rt Version.wpd 2 by registered or certified mail, returned receipt requested, postage prepaid, as follows: a. if to the City, to: City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 Attention: Community Services Director b. if to the Developer, to: Mr. Michael Shovlin Washington/Adams, Partnership 71-084 Tamarisk Lane Rancho Mirage, CA 92270 ARTICLE IX. INDEMNITY With respect to acts, errors or omissions in the performance of Developer's obligations hereunder, Developer agrees to indemnify and hold harmless the City and its officers, agents, employees, and representatives from and against any and all claims, demands, defense costs, liability or consequential damage of any kind or nature arising out of Developer's (including its subcontractors, agents,' employees, assigns or licensees) negligent and/or willful acts, errors or omissions in the performance of Developer's obligations under this Agreement. With respect to acts, errors or omissions in the performance of the City's obligations hereunder, the City agrees to indemnify and hold harmless Developer from and against any and all claims, demands, defense costs, liability or consequential damages of any kind or nature arising out of the City's (including its contractors') negligent and/or wilful acts, errors or omissions in the performance of the City's obligations under this Agreement. The forego g indemnities shall be in effect without regard to the maintenance of insurance coverage for any such loss, costs, claims, damages or expenses. ARTICLE X. GENERAL 10.1 Any provisions of this Agreement which shall prove to be invalid, void, or illegal shall in no way affect, ii-JIipair or invalidate any other provision hereof, and such remaining provisions shall remain iq full force and effect. 10.2 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 the Developer fail to enter j a Date of Execution, the Effective Date shall be the Date of Execution by the City. A:\Art Maintenance Agreement Short Version.wpd IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the P g day and year first written above. CITY: CITY OF LA QUINTA, a California munn ation By:e, /• THOMAS P. GENOVESE, City Manager City of La Quinta, California ATTEST: JU EEK, City Clerk City of La Quinta, California APPROVED AS TO i&�- OALIZI;Xcota DAWN HONEYWE L, �ICity Attorney City of La Quinta, California DEVELOPER: WASHINGTON/ADAMS, Partnership A:\Art Maintenance Agreement Short Version. wpd EXHIBIT A ART PURCHASE AGREEMENT ATTACHED IN ITS ENTIRETY A:\Art Maintenance Agreement Shock Version. wpd • � E ATTACHMENT 2 ORIGINIA1 ART P TLCHASE AGREEMENT $ 3 i THIS ART PURCHASE AGREEMENT (the "Agreement") is entered into this lc',,'day of , 1996, b and between THE CITY OF LA - QUINTA, a California municipal corporation (the "City ) and. WASHINGTON/ADAMS, L.L.C. ("Developer") and LOLUS DEMARTINO ("Artist?'). RECITALS A. The De eloper is currently constructing the One Eleven La Quinta Shopping Center. To meet the requirement for artwork pursuant to Chapter 2.65 of the City Municipal Code, the Developer is commissioning the fabrication and installation of certain ARTWORK (the "Artwork") to be installed and displayed by the Developer at the SITE LOCATION which is within the One Eleven 4 Quinta Shopping Center located at the northeast corner of Highway 111 and Washington Street (the "Site Location"). NOW, THEI hereinafter set forth, 1.1 Scope Prepared, any requires things necessary and pursuant to this Agrea 1.2 &= Artwork pursuant to Schedule of Perforr incorporated herein t the ,parties hereto, for the consideration and under the conditions mutually agree as follows: ARTICLE I. SCOPE OF SERVICES f Design Services, Developer and/or Artist shall prepare or cause to be approvals for all shop drawings, details, and samples, and shall do all other ncidental to the performance of Developer's and/or Artist's obligations f Fabrication Services. Artist shall fabricate, transport and install the ad by the times set forth in the Scope of Design Build Services and the nce -attached hereto as Exhibit A and Exhibit B, respectively, and this reference. The City shall have the right to review the Artwork at reasonable times during the fabrication thereof. Arm shall submit to the Developer and the City monthly progress narratives, including photograp , as required by the Schedule of Performance (Exhibit B). The narratives shall include the percentage of the Artwork completed to date, along with an estimated completion date. 1 Artist hall furnish all tools, equipment, apparatus, facilities, plant, labor, services, materials, and all u " ties and transportation, including power, fuel, and water, and to perform all work necessary to c nstruct, transport and install in a good and workmanlike manner the scope of work set forth ' the Scope of Design Build. Services (Exhibit A), or reasonably inferable therein, together wi the appurtenances thereto, at the Site Location. It is understood and agreed that all said plant, la r, services,- materials, equipment, and facilities shall be furnished and said work performed and completed by Artist as an independent contractor, subject to the inspection and approval of the City or its representatives. 0.05 An Pt rchase Agreement b. U n completion and at all times during fabrication and installation, the Artwork shall comply w th all applicable statutes, ordinances and regulations of any governmental agency having jurisdicti n over the Artwork. 1.5 a. The Artist shall be available at such reasonable time or -times as may be agreed between the C. , Developer, and Artist to attend any and all inauguration, ground breaking, or presentatin ceremonies upon completion of the Artwork. b. The Developer shall use reasonable efforts to arrange for publicity for the completed Artwork by local media and publications, and otherwise as may be determined between the City, Developer, and Artist as soon as practicable following installation. c* pon installation of the Artwork, the Artist shall provide the Developer and City with written ins7s. "ons for appropriate maintenance and preservation of the Artwork, with which the Developecomply subject to Section 6.4 hereof. 1.6 a. ',The Artist shall advise the Developer and the City in writing that the Artwork will become the responsibility of the Developer on the effective date of completion of the project and the acceptance as complete by the Developer and the City. Following receipt of such notice the City shall j cause the installed Artwork 'to be inspected by suitably qualified and appropriate professioz(s), and within five (5) days following completion of such inspection(s), the City shall either p vide Developer with reasonably specific written objections to the installed Artwork or notify the Developer of its acceptance of the Artwork by a Notice of Completion in the form attached hereto as Exhibit-D. Such Notice of Completion (Exhibit D) 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 the City of the ownership of the Artwork will occur at the completion of i twenty-five years (25) or the year 2021. At that time the ownership and responsibility for thel Artwork will rest with the City. 1.7 BiSL shall be borne by the (25) years or the yeg Artwork from loss (Y Artwork until the a P such measures as an or other adequate s made by the City f 1. u. Upon final completion, the risk of loss or damage to the Artwork )eveloper until the City accepts the Artwork at the completion of twenty-five 2021. The Artist shall take such measures as are necessary to protect the damage, through insurance or other adequate security, and to maintain the 3tice of Completion has been issued by the City. The Developer shall take necessary to protect the Artwork from loss or damage, through insurance xity, and to maintain the Artwork until the a Notice of Acceptance has been 007 thereof. If the City aj agrees to reimburse the speedy progress of woe If Artist provisions of this A Artist, may without j may deduct the cost that the City and/or charged to Artist. Developer elects not to terminate Artist's right to proceed, .Artist and/or Developer for losses or damages resulting from the delay in ild neglect to prosecute the work properly or fail to perform any it, the City and/or Developer, after three (3) days' written notice to to any other remedy it may have, make good such deficiencies and from the payment then or thereafter due Artist; provided, however, per shall approve such action and certify the amount thereof to be ARTICLE M. WARRANTIES 3.1 Title. Tie Artist represents and warrants that: (a) the Artwork is solely the result of the artistic effort of, the Artist; (b) except as otherwise disclosed in writing to the City and Developer, the Artwork is unique and original and does not infringe upon any copyright; (c) the Artwork, or a duplicated thereof, has not been accepted for sale elsewhere; and (d) the Artwork is free and clear of any and all encumbrances and/or monetary liens. 3.2 Quality land Condition. The Artist represents and warrants, except as otherwise disclosed to the City Developer 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 patenq and latent defects in material and workmanship, including any defects consisting of "inherent) vice" 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 the Artist to the City and Developer hereunda. The warranties described in this Section 3.2 shall survive for a period of one (1) year after the Notice of Completion, except the representation and warranty - concerning latent defects shall survive fbr a period of three (3) years from after Acceptance of the Artwork by the City and Developer. I The City and/or Developer shall give notice to the Artist of any observed and claimed breach with reasonable promptness. The Artist shall, at the request of the City or Developer; and at no�cost to the City or Developer, cure reasonably and promptly the breach of any such warranty 'ch is curable by the Artist and which cure is consistent with professional conservation standar#(including, for example, cure by means of repair or refabrication of the Artwork). ARTICLE IV. PERFORMANCE BONDS The shall not be required by the City to post any performance bonds or similar undertakings and any requirement of any other authority for performance bonds shall be the responsibility o the City. Nevertheless, Artist shall prevent any lien from attaching to the Artwork or develo ent of.the site by any person claiming under Artist. MI:J I� Art Purchase Agreement is b. All repairs and restorations shall be made in accordance with recognized principles of conservation. 6.4 Maintenance and Alteration of the Artwork. a. The Developer shall maintain the Artwork in a manner that the City determines appropriate * its sole discretion. b. The City and Developer shall use its reasonable efforts to meet and consult with Artist prior to the time of making any alteration. If any alteration is made without the consent of Artist, Artist shall have the right to direct the City and Developer to remove Artist's name from the Artwork. In connection herewith, Artist hereby acknowledges and agrees that Artist is familiar with � Section 987 of the California Civil Code and the rights and protection afforded Artist thereunder, and Artist hereby waives each and all of Artist's rights and protection under Section 987 of Ithe California Civil Code to the extent such rights and protection are inconsistent with this ;Section 6.4; provided, however, that to the extent that the rights and protection afforded Artist under Section 987 of the California Civil Code are not inconsistent with this Section 6.4 or pertain to matters that are not dealt with in this Section 6.4, Artist shall retain such rights and prc 6.5 Remarie Record, The City shall maintain a record of this Agreement and of the location and disposition of the Artwork. 6.6 .The Artist and Developer shall notify the City of changes in their address. The City sh ll take reasonable effort(s) to locate the Artist when matters arise relating to the Artist's rights er this Agreement. 6.7 venants. The covenants and obligations set forth in this Article VI shall be binding up n the parties, their heirs, legatees, executors, administrators, assigns, transferees and all the successors. in interest, and the City's covenants do attach and run with the Artwork and shall bel 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 VI. ARTICLE VII. ARTIST AS INDEPENDENT CONTRACTOR The "t shall perform all work under this Agreement as an independent contractor and not as an agent, joint venturer, partner or an employee of the City or the Developer. The Artist shall not: a. be supervised by any employee or official of the City or the Developer; b. exercise supervision over any employee or official of the City or the Developer; o i l Art Purchase Agreement i ARTICLE X. CONTRACTOR ADMINISTRATOR The Contract Administrator for this Agreement shall be the City Community Development Director. ifterever this Agreement requires any notice to be given to or by the City, or any determination or action to be made by the City, the City Community Development Director shall represent and act for the City. ARTICLE M. NON-DISCRIlVI NATION In carryinfg out the performance of the services designated, the Developer, Artist and the City shall not discriminate as to race, color, creed, religion, marital status, national origin or ancestry, and the Artist shall comply with the equality of employment opportunity provisions of State and local laws d regulations as presently existing or hereafter amended. ARTICLE XII. ENTIRE AGREEMENT This A meat, consisting of thirteen pages and four exWbits, embodies the entire Agreement and unders ing between the parties hereto, and there are no other agreements and understandings, oral or' written, with reference to the subject matter hereof that are not merged herein and superseded hereby, except as set forth hereinabove. ARTICLE XIII. MODIFICATION No alteration, change or modification of the terms of the Agreement shall be valid unless made in writing ,end signed by each party hereto and approved by appropriate action of the City. ARTICLE XIV. WAIVER No waiver of performance by either party 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 ofl defective performance. ARTICLE XV. GOVERNING LAW 15.1 This Agreement, regardless of where executed or performed, shall be governed by and construed in accordance with the laws of the State of California. 15.2 In addition to any other rights or remedies and subject to the restrictions otherwise . set forth in this Agreement, either party 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 an appropriate Riverside County municipal court, or in the Federal District. Court in the district of California which includes Riverside County. 013 11 Art Au base Agreement With respect to acts, errors or omissions in the performance of the City's obligations hereunder, the City agrees to indemnify and hold harmless Developer and Artist from and against any and all claims, demands, defense costs, liability or consequential damages of any kind or nature arising out of the City's (including its contractors') negligent and/or wilful acts, errors or omissions in the performance of the City's obligations under this Agreement. The foregoing indemnities shall be in effect without regard to the maintenance of insurance coverage for any such loss, costs, claims, damages or expenses. ARTICLE M. INSURANCE 19.1 Policies. Throughout fabrication of the Artwork the Developer shall insure that the Artist maintains Comprehensive General Liability Insurance, or Commercial General Liability insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability (employee and contractual exclusions deleted), Products/Completed Operations Liability, Broad -Form Property Damage 'and Independent Contractors' ($1,000,000) per occurrence, combined single limit, written on an occurrence form, and such other forms and amounts of insurance as the City may deem necessary or desirable. All required insurance shall be evidenced by an insurance policy or policies (or the renewal or replacement thereof) reasonably acceptable to the City. I Developer and Artist shall not proceed with any work nor receive payment under this Agreement until, among other things, the City has received the appropriate insurance certificates. Developer and/or Artist, prior to completion, shall maintain or cause to be maintained standardall-risk property insurance in an amount equal to or greater than the full replacement value of the Artwork. The Artist's General Liability policy required by this Agreement shall contain the following clauses: "The City of La Quinta and its officers, agents, employees, representatives, and volunteers. along with Developer are added as additional insureds as respective operations and activities of, or on behalf of the named insured, .j performed under contract with'the City of La Quinta." Prior commencing any work under this Agreement, Developer and Artist shall deliver to the City ' certificates confirming the existence of the insurance required by this Agreement, and incl ding the applicable clause referenced above. Also, within thirty (30) days of the execution dateof this Agreement, Artist shallprovide to the City an endorsementto the General Liability poicy, which adds to this policy the applicable clause referenced above. Said endorsement shall be signed by an authorized representative of the insurance company and shall include the signator's company affiliation and title. Should it be deemed necessary by the City, it shall be Developer's and Artist's responsibility to see that the City receives documentation acceptable to the City which sustains that the individual signing said endorsement is. indeed U146 An Purchase Agreement i 20.5 The City s hall give any subsequent owner of the Artwork written notice of the covenants contained herein, and shall cause each such successive owner to be bound thereby. 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 municipa rporation By: THOMAS P. GENOVESE, City Manager City of La Quinta, California tAMUNDR4A T: 00, L. RMO, City Clerk City of La Quinta, Ca4fornia APPROVED AS TO FORM: DAWN HONEYWELL, City Attorney City of La Quinta; California .ARTIST: LOUIS DEMARTINO DEVELOPER: WASHINGTON/ADAMS, L.L.C. 00-1 By Its FORM.CON 13 . �1:7 Art Purchase Agreemm 4. Artist shall provide all unloading, hoisting, scaffolding, -and, bracing for the Artwork. 5. Artist shall provide all drilling, coring, cutting, fastening, and welding required for the Artwork. 6. Artist shall supply all specialty lighting required to complete the Artwork. 7. Developer shall supply all landscaping required to complete the Artwork. III. SPECIFIC rmMs OF iNCLusm 1. One Elevjen La Quinta Landmark: The mountains will be depicted by pyramidal, bronze peaks, supported�by a base of pigmented concrete in a color evoking the desert floor. To draw one's attention at night, light would emanate from a small, clear, poly carbonate gem embedded' in the mountains, softly spilling a refracted glow onto the reflective surfaces of the slopes. The bottom perimeter of the mountains (the concrete base) would be downlighted to create a weightless floating e4ect. 2. The bronze peaks and the pigmented concrete would be 30-feet by 12-feet by 18 -feet. 3. The entire Artwork -is to be permanently bolted to the boulders and sufficient security measures insured by the Artist. 019 Art Purchan AgMmOM EXffiBIT C SCHEDULE OF COMPENSATION PRICE: Basic Contract: Total Not to Exceed. S-HEDLTi.E OF PA M: Washington Street/Highway 111 Sculpture Cinema Complex Sculpture $95,000 $81,000 $14.000 $95,000 Note: Any fee waivers granted the Developer both in past and. future will be deducted from the Not to Exceed amount of $95,000.