LQ Investors & Mark Lundeen/Art Purchase 13ART PURCHASE AGREEMENT
THIS ART PURCHASE AGREEMENT (the "Agreement') is entered into this W I l' day of
MAR CAI 2013, by and among THE CITY OF LA QUINTA, a California municipal
corporation ("City"), LAQUINTA INVESTORS, L.P. ("Developer") and MARK LUNDEEN
("Artist').
RECITALS
A. Developer has requested approval for Double Dipper (the "Project') on the property
generally located at 47805 Caleo Bay ('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 delivery of certain artwork (the "Artwork") to be
displayed by Artist at the north west of building entry next to public sidewalk on the
Property (the "Site Location").
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
deliver 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 delivery 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, in a good and workmanlike manner in the Site
Location(s) as more fully described in said Exhibit A or reasonably inferable therein. If
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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 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 therefrom 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 scheduling, site preparation, or maintenance forthe 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 (and 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 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
delivery process, Artist shall ensure that the Artwork complies with all applicable
statutes, ordinances and regulations of any governmental agency having jurisdiction
over the Artwork.
C. Developer shall ensure that the Artwork is installed in a safe manner, and is
designed to withstand the forces of nature it is expected to be exposed to during its
lifetime, including, but not limited to, wind, rain, sun, and earthquake, as reasonable
for artwork of a similar nature.
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1.8 Post -Installation Obligations.
a. 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.
b. 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. Developer shall advise City in writing when Developer believes that
installation of the Artwork at the Site Location(s) is complete. Following receipt of
such notice, City shall promptly cause the installed Artwork to be inspected. Within
five (5) working days following completion of such inspection(s), City shall either (i)
provide Developer with reasonably specific written objections, and a list of
necessary corrections to the installed Artwork that Developer must complete, or (ii)
notify Developer 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
2038. 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 delivery phases until City issues the Notice of Completion indicating its
acceptance of the Artwork as provided in Section 1.9. Upon Developer'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).
1.11 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 $20,000
(Twenty Thousand Dollars). The parties agree that said compensation represents full
payment to Artist for the design, fabrication and delivery 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.
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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 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 Ill. 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 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 delivery, 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
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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).
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 Carl Sanders, Director of Development, 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, Mark Lundeen ("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
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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 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.
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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 Developer, 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
Vlll.
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 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
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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 113(d)), the
California Art Preservation Act (Cal. Civil Code § 987 etseq.), 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 and 113(d)), the California Art Preservation
Act (Cal. Civil Code § 987 et seq.), and any other local, state, federal or international laws
that convey rights of 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
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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, Developer 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.
12.1.2. Required Endorsements. General liability insurance policies required
to be provided by Developer hereunder shall contain or be endorsed to contain the
following provisions:
a. City, 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 2010 with an edition date prior to 2004, or its exact
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 againstwhom 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 vicarious liability.
C. Liability coverage shall be primary and non-contributing with any
insurance maintained by City.
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 prior written notice has been given to City. Such provision shall
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not include any limitation of liability of the insurer for failure to provide such
notice.
e. No liability insurance coverage provided to comply with this
Agreement shall prohibit Developer, or Developer's employees, or agents,
from waiving the right of recovery prior to a loss. Developer waives its right
of recovery against City.
12.1.3. Verification of Coverage. Developer shall deposit with City within
fifteen (15) days of Notice to Proceed of the Contract 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 for
payment of premiums or other amounts with respect to the insurance required to be
provided by Developer hereunder. Any failure, actual or alleged, on the part of City
to monitor compliance with these requirements will not be deemed as a waiver of
any rights on the part of City. City has 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 has the right but not the duty to obtain the insurance it deems
necessary and any premium paid by City will be promptly reimbursed by Developer.
12.1.5. Prompt Notice. Developer agrees to provide immediate notice to City
of any claim or loss against Developer arising out of the work performed under this
agreement. City assumes 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.
12.1.6. Subcontractors. Developer shall include all subcontractors, if any, as
insureds under its policies or shall furnish separate certificates and endorsements
for each subcontractor approved by City. 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, Developer
shall indemnify, protect, defend and hold harmless City and Developerand 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, 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 Developer's performance of this Agreement. All
obligations under this provision are to be paid by Developer as City incurs them.
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12.2.2 Exception to Developer's Obligation to Indemnify. Without affecting the
rights of City under any provision of this Agreement or this section, Developer shall
not be required to indemnify and hold harmless City as set forth above for liability
attributable to the sole fault of City, 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 is shown to have
been solely at fault and not in instances where Developer is solely or partially at
fault or in instances where City's fault accounts for only a percentage of the liability
involved. In those instances, the obligation of Developer will be all-inclusive and
City will be indemnified for all liability incurred, even though a percentage of the
liability is attributable to conduct of City.
12.2.3 Developer Acknowledgment. Developer acknowledges that its obligation
pursuant to this section extends to liability attributable to City, if that liability is less
than the sole fault of City.
12.2.4Indemnity Provisions for Subcontractors. Developer agrees to obtain
executed indemnity agreements with provisions identical to those set forth here in
this section from each and every subcontractor, or any other person or entity
involved by, for, with or on behalf of Developer in the performance of this
Agreement. In the event Developer fails to obtain such indemnity obligations from
others as required here, Developer agrees to be fully responsible according to the
terms of this section.
12.2.5 No Waiver: Survival. Failure of City to monitor compliance with the
requirements of this Section 11.2 imposes no additional obligations on City and will
in no way act as a waiver of any rights hereunder. Developer's obligation to
indemnity and defend City as set forth herein is binding on the successors, assigns,
or heirs of Developer and shall survive the termination of this Agreement or this
section.
12.3 Remedies. In addition to any other remedies City may have if Developer fails
to provide or maintain any insurance policies or policy endorsements to the extent
and within the time herein required, City 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 Developer to stop work under this Agreement and/or withhold
any payment(s) which become due to Developer hereunder until Developer
demonstrates compliance with the requirements hereof.
C. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to any other remedies
City may have. The above remedies are not the exclusive remedies for Developer'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 Developer may be held responsible
Page 11 of 22
for payments of damages to persons or property resulting from Developer'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
78-495 Calle Tampico
La Quinta, CA 92247-1504
(760) 777-7032
ARTIST:
Mark Lundeen
356 East 4th Street
Loveland, CO 80537
(970) 667-7275
DEVELOPER:
LaQuinta Investors, LP
Attn: W. Codx Erwin
12115 NE 99t Street, Ste. 1800
P.O. Box 820528
Vancouver, WA 98682-0011
(360)254-9442
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 and Developer shall comply with the equality of
employment opportunity provisions of State and local laws and regulations as presently
existing or hereafter amended.
13.3 Entire Agreement. This Agreement and all exhibits attached hereto and
incorporated herein by specific reference, embody 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.
Page 12 of 22
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.
13.11 ForceMajeure. 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
Developer (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
Page 13 of 22
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 parry 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 14 of 22
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year first written above.
CITY:
ATTEST:
SUSAN MAYSELS, Clerk
City of La Quinta, California
FORM:
CITY OF LA QUINTA, a California Municipal
Corporation
City Manager
, City Attorney
City of La Quinta,
DEVELOPER: LAQUINTA
W. Cody Erwin
Manager
ARTIST: MARK LUNDEEN
Page 15 of 22
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.
G. Artist's design and specifications have been approved by City and Developer. No
changes shall be made without approval of City and Developer.
GENERAL ITEMS OF INCLUSION
The work shall include but not necessarily be limited to the following
a. Developer shall examine or cause to be examined all supporting and adjacent
surfaces and record any defects to City prior to installing any material. The installation of
any material constitutes the Developer's complete acceptance of all substrates as
compatible with the work under this agreement.
b. Developer 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. Developer shall provide for all unloading, hoisting, and bracing for the Artwork.
d. Developer shall provide all drilling, coring, cutting, fastening required for the artwork.
e. Developer shall supply and install all specialty lighting required to complete the
artwork.
III. SPECIFIC ITEMS OF INCLUSION
The life size sculpture of grandfather and grandchild on a stone bench will be installed at
the northwest building entry next to public sidewalk. The design consists of the following:
a. The Bronze sculpture shall be attached to the stone bench by drilling into the
sculpture and attaching the artwork to the stone. Every effort shall be made to
secure the artwork in a manner to prevent theft.
The City will have an archived document listing the materials and sealers. This document
will specify the type of equipment and materials used in the event repairs are needed.
Page 16 of 22
The lighting will include two flush mounted floor lights to direct light upward toward the
artwork and will be installed by the Developers agents at their expense.
The Developers and Artist will hold a dedication in a timely fashion after completion.
Page 17 of 22
EXHIBIT B
SCHEDULE OF PERFORMANCE
SCHEDULING:
"Double Dipper" shall be completed within eight weeks of the execution of this Agreement.
Page 18 of 22
EXHIBIT C
SCHEDULE OF COMPENSATION
SCHEDULE OF PAYMENT TO ARTIST BY CITY:
City shall pay Artist a deposit in the amount of: $10,000
City shall pay Artist after completion:
Total Not to Exceed:
$10,000
$20,000
Page 19 of 22
u
U,1
EXHIBIT D
NOTICE OF COMPLETION FOR ARTWORK
Piece of Artwork: Double Dipper
WHEREAS, by that certain Art Purchase Agreement dated March 11, 2013
("Agreement"), the CITY OF LA QUINTA, a California municipal corporation ("City")
contracted with LAQUINTA INVESTORS, L.P. ("Developer") and MARK LUNDEEN
("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 3rd day of May, 2013.
CITY OF LA QYINTA, a California
Municipal Corp ration
0
LAQUINTA INVESTORS, L.P.
By:
Page 1 of 1
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. Said Artwork
includes, but is not limited to, adjacent sidewalks, pedestrian lighting, and landscaping
which is part of the Artwork. 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: maintenance of all
sidewalks, paths and other paved areas in clean and weed -free condition;
maintenance of all such areas clear of dirt, mud, trash, debris or other matter which
is unsafe or unsightly; removal of all trash, litter and other debris from the Artwork
and immediately surrounding areas and removal of all graffiti.
B. Landscape maintenance shall include, but not be limited to:
watering/irrigation; fertilization; mowing; edging; weeding; removal and replacement
of dead landscaping material; trimming of grass; tree and shrub pruning.
C. 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 and waxing of all artwork.
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.
Page 21 of 22
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.
• � w p l " I Ium I k,k'rj
Dated: By:
W. Cody Erwin
Manager
Page 22 of 22
Client8: 89467 ERWICONS
ACORD. CERTIFICATE OF LIABILITY INSURANCE mu("aroDllo
nm� esn�
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 eart ifWait e holder Is To ADDITIONAL INSURED, Tk4 polky(les) must be endoread. H SUBROGATION IS WAIVED, iu b—le ci 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 endorsomentisi.
Propel Insurance
Tacoma Commercial Insurance
1201 Pacific Ave, Suite 1000
Tacoma, WA 98402
INSURED --
Erwin Construction Company
PO Box 820528
Vancouver, WA 98682
COVERAGES CERTIFIC.ATF NIIMRFR- DOMIQUNU NIILIRDR•
THIS
IS TO CERTIFY THAT THE POLICIES
OF
INSURANCE
LISTED BELOW HAVEBEENISSUEO
TOTHE INSURED
NAMEDABOVE FORrHE POLICYPERIOD
INDICATED.
NOTWTTHSTANOINO 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.
T_
TYPE OF INSURANCE
Naa.
was,__._.________.__�.�.._
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EACH OCCURRENCE �s1000000
X coaNERcuL GENERj�AL LIABILITY
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CLAIMS#UpE u OCCUR
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AUTOMMILEUA91L(TY
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DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Muth ACORO 101, A40111on s RoMs Ae S ho&Is. a men some N requreO)
RE: Le Quinta Investors LP dba Caleo Bay ASCC • 47805 Caleo Bay Drive, La Quinta, CA 92253. Certificate
holder is inleuded as Additional Insured per the attached endorsement.
City of Le QUlnta SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
78-495 Calls Tampico ACCORDANCE WITH THE POLICY PROVISIONS.
La Quints, CA 92247.1504
AUTHORIZED REPRESENTATIVE
01988.2010 ACORD CORPORATION. All rights reserved.
ACORD 26 (2010105) 1 of 1 The ACORD name and logo are registered marks of ACORD
NS10543391M1054252 ATR00
Ervin Construction Company
POLICY NUMBER: Bcsoo292se
COMMERCIAL GENERAL LIABILITY
CG 2010 07 04
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - OWNERS, LESSEES OR
CONTRACTORS - SCHEDULED PERSON OR
ORGANIZATION
This endorsement modifies insurance provided under the following:
ldi]bI SIB:Z113/_1lei =1ki14:L•1riR W:]I11YrLKtaP/d:7_TH:4]_I;II
SCHEDULE
Name Of Additional Insured Person(s)
Or Or anization s :
Locations Of Covered Operations
Blanket by virtue of a written contract
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
A. Section 11 — Who Is An Insured is amended to
include as an additional insured the person(s) or
organization(s) shown in the Schedule, but only
with respect to liability for "bodily injury', "property
damage" or "personal and advertising injury'
caused, in whole or in part, by.
1. Your acts or omissions; or
2. The acts or omissions of those acting on your
behalf;
in the performance of your ongoing operations for
the additional insured(s) at the location(s) desig-
nated above.
B. With respect to the insurance afforded to these
additional insureds, the following additional exclu-
sions apply.
This insurance does not apply to "bodily injury' or
"property damage" occurring after:
1. All work, including materials, parts or equip-
ment fumished in connection with such work,
on the project (other than service, maintenance
or repairs) to be performed by or on behalf of
the additional insured(s) at the location of the
covered operations has been completed; or
2. That portion of "your work" out of which the
injury or damage arises has been put to its in-
tended use by any person or organization other
than another contractor or subcontractor en-
gaged in performing operations for a principal
as a part of the same project.
CG 2010 07 04 0 ISO Properties, Inc., 2004 Page 1 of 1 O
Erwin Conshuction Company
POLICY NUMBER: BCS0029288 COMMERCIAL
GENERAL LIABILITY
CG 20 37 07 04
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - OWNERS, LESSEES OR
CONTRACTORS - COMPLETED OPERATIONS
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL !LIABILITY COVERAGE PART
Section If — Who Is An Insured Is amended to include as an additional Insured the persons) or
organization(s) shown in the Schedule, but only with respect to liability for "bodily Injury" or
"property damage caused, in whole or in part, by *your work" at the location designated and
described In the schedule of this endorsement performed for that additional insured and included to
the "products -completed operations hazard".
CG 20 37 07 04
0 ISO Properties, Inc., 2004
Erwin Construction Company
POLICY NUMBER: BCS002928e
COMMERCIAL GENERAL LIABILITY
CG 24 04 05 09
WAIVER OF TRANSFER OF RIGHTS OF RECOVERY
AGAINST OTHERS TO US
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART
SCHEDULE
Name Of Person Or Organization:
Any Person or Organization who requires you to obtain this waiver of
our right of recovery under a written contract or agreement.
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
The following is added to Paragraph 8. Transfer Of
Rights Of Recovery Against Others To Us of
Section IV — Conditions:
We waive any right of recovery we may have against
the person or organization shown in the Schedule
above because of payments we make for injury or
damage arising out of your ongoing operations or
.your work" done under a contract with that person
or organization and included in the "products -
completed operations hazard". This waiver applies
only to the person or organization shown in the
Schedule above.
CG 24 04 05 09 0 Insurance Services Office, Inc., 2008 Page 1 of 11 0
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of La.Quinta
78495 Calle Tampico
La Quinta, CA 92253
Attn: Community Services
NO FEE REQUIRED FOR RECORDATION PURSUANT
TO GOVERNMENT CODE SECTION 6103
DOC # 2013-0239498
05/20/2013 04:18 PM Fees: $0.00
Page 1 of 5
Recorded in Official Records
County of Riverside
Larry W. Ward
Assessor, County Clerk & Recorder
"This document was electronically submitted
to the County of Riverside for recording"
Receipted by: MABRERA
APN 643-200-033
PUBLIC ART MAINTENANCE AGREEMENT
THIS PUBLIC ART MAINTENANCE AGREEMENT ("Maintenance Agreement") is
made as of (if , 2013, by and between the CITY OF LA QUINTA, a
California Municipal Corporation (the "City"), and LAQUINTA INVESTORS, L.P. (the
"Developer"), with respect to the following facts:
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. Said Artwork
includes, but is not limited to, adjacent sidewalks, pedestrian lighting, and landscaping
which is part of the Artwork. 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: maintenance of all
sidewalks, paths and other paved areas in clean and weed -free condition;
maintenance of all such areas clear of dirt, mud, trash, debris or other matter which
is unsafe or unsightly; removal of all trash, litter and other debris from the Artwork
and immediately surrounding areas and removal of all graffiti.
B. Landscape maintenance shall include, but not be limited to:
watering/irrigation; fertilization; mowing; edging; weeding; removal and replacement
of dead landscaping material; trimming of grass; tree and shrub pruning.
C. 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 and waxing of all artwork.
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.
IN WITNESS . WHEREOF, City and Owner have executed this Maintenance
Agreement as of the date set forth opposite their respective signatures.
CITY:
14 , 2013
ATTEST:
SUSAN MAYSELS, City CI c
City of La Quinta, California
APPROVED AS TO FORM:
M. KATHERINE JENSON, City Attorney
City of La Quinta, California
DEVELOPER:
Dated:
CITY OF LA QUINTA, a California
Municipal Corporation
J�� b— —
FRA K J ACEK, City Manager
0
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 Artwbrk, 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.
IN WITNESS WHEREOF, City and Owner have executed this Maintenance
Agreement as of the date set forth opposite their respective signatures.
CITY:
ATTEST:
2013
SIGNED IN COUNTERPART
SUSAN MAYSELS, City Clerk
City of La Quinta,.California
M. KATH RINE J
City of La Quints,
DEVELOPER:
Dated:
CITY OF LA QUINTA, a California
Municipal Corporation
By: &OM IN COUNTERPART
FRANK J. SPEVACEK, City Manager
LAQUINTA INVESTOR
ay:
W. Cody resin, anager
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SOUTHERLY OF THE SOUTHERLY CURB FACE OF HIGHWAY 11,ACROSS,
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F:LC\(A'TION OF 94.36' (NAVI)68)
B,NSIS (")FB1,1NIRING
DiE BASIS OF BEARINGS FOR THIS SURVCY IS lDf'NIICAL. VAM THAT OF
PARCT--J, MAP NO. 2-1892, FILED IN BOOK J8'7 OF PARCEL MAPS, AT
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SOUTHERLY OF THE SOUTHERLY CURB FACE OF HIGHWAY 11,ACROSS,
FROM THE CLIFF HOUSE RESTAURANT ENTRANCE. AND HAVING AN
F:LC\(A'TION OF 94.36' (NAVI)68)
B,NSIS (")FB1,1NIRING
DiE BASIS OF BEARINGS FOR THIS SURVCY IS lDf'NIICAL. VAM THAT OF
PARCT--J, MAP NO. 2-1892, FILED IN BOOK J8'7 OF PARCEL MAPS, AT
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