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HomeMy WebLinkAboutA3149 - BIRD MEDICAL TECHNOLOGIES SCULPTURE o C � m a a n LL RECORDING REQUESTED BY f1� l W g C) 3 AND WHEN RECORDED MAIL TO: ?014� W < C),CITY OF PALM SPRINGSWCity Clerk P.O. Box 2743 Bird Technologies Inc - Palm Springs, CA 92263 Grant of Easement & Agr to maintain sculpture (per Exh C) --` AGREEMENT #3149 CAM signed 12-29-93 O rP-rPrnrded) (For Recorder ' s Use Onlyl GRANT OF EASEMENT AND AGREEMENT This Grant of Easement and Agreement ( this "Agreement" ) is made as of ,lung 10 _ r 1993 by and between BIRD MEDICAL TECHNOLOGIES, INC. , a California corporation ( "Grantor" ) and the CITY OF PALM SPRINGS, CALIFORNIA, a municipal corporation ( the "City" ) . R, E A. Grantor is the owner of that certain real property located in the County of Riverside, State of California, more particularly described on Exhibit "A" attached hereto ( "Grantor ' s Property" ) . B. City is the owner of a certain sculpture ( "Sculpture" ) created by Damian Priour ( "Artist" ) which Grantor desires City to locate on a portion of Grantor ' s Property. C. To facilitate location of the Sculpture upon Grantor ' s Property, Grantor desires to grant to City an easement for purposes of placing the Sculpture on Grantor ' s Property as more particularly provided herein. NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the parties hereby agree as follows : 1 . Grant of Easement . Grantor hereby grants and conveys to City a perpetual non-exclusive easement in gross over that portion of Grantor ' s Property legally described or depicted on Exhibit "B" attached hereto and incorporated herein ( the "easement area" ) for purposes of placing the • • 3500 394199 Sculpture thereon and for access over and across the Grantor ' s Property and iEor purposes of maintaining, repairing and replacing , if necessary, the Sculpture and for the removal thereof . 2 . Maintenance. Grantor hereby agrees to maintain the easement area, including all access paths , landscaping and other improvements , in first class condition, and shall maintain the Sculpture in first class condition and shall perform all maintenance recommended by the Artist with respect to the Sculpture . Grantor shall repair and/or replace any damage to the Sculpture within fourteen ( 14) days of such damage being discovered. in the event any graffiti is discovered on the Sculpture, Grantor shall remove such graffiti on the same day it is discovered. It is the intent of the parties that so long as the Sculpture remains on Grantor ' s Property, Grantor shall keep, maintain, repair and replace the Sculpture :such that it remains in a good, clean and first class condition and of the highest quality. Materials used to restore, repair or replace any portion of the Sculpture shall be of equal or better quality than the original materials used in the Sculpture. When necessary, Grantor shall consult the Artist or another competent art work conservationist or restoration specialist to determine the best methods of such restoration or repair . All such maintenance, repair , replacement and restoration shall be at the sole cost of Grantor . 3 . Insurance. Grantor shall procure and maintain, at its sole cost and expense, in a form and content consistent with industry standards, with an insurer qualified to do business in California and rated "A" or better in the most recent edition of Best Rating Guide with a financial class . category of Class VII or better, unless such requirements are waived by the Risk Manager of the City, during the entire term of this Agreement and at all times while the Sculpture is located on Grantor ' s Property, the following policies of insurance : (a) Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance together with a Broad Form CGL Endorsement and insuring against contractually assumed liability which shall specifically insure Grantors indemnity obligations under Section 4 below. The policy of insurance shall have a combined single limit liability of one Million Dollars ( $1, 000 , 000 . 00 ) . (b) Workers ' Compensation Insurance . A policy of workers ' compensation insurance in an amount as would -2- 3500 394199 fully comply with the laws of the State of California and which shall 'indemnify, insure and provide legal defense for both Grantor and the City against any loss, claim or damage arising from any injuries or occupational hazards or diseases occurring to any worker employed by or any person retained by Grantor in the course of carrying out the obligations of this Agreement. (c) Proaerty_ Insurance . Grantor shall procure and maintain a policy of property insurance which shall specifically cover the Sculpture providing protection against any peril included within the classification of "fire and extended coverage" , "all risk" and/or "special form" , together with insurance against vandalism, theft and malicious mischief . The policy and certificate evidencing the policy shall specifically reference the coverage of the Sculpture. All of the above policies of insurance shall be primary insurance and shall name the City, its officers, employees and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers . All of such policies shall provide that such insurance may not be amended or cancelled without providing thirty (30 ) days prior written notice by registered mail to the City. in the event any of such policies are cancelled, Grantor shall, prior to the cancellation date, submit new evidence of insurance in conformance with the requirements of this Section 3 . Grantor shall provide the Commission with Certificates of Insurance evidencing the insurance coverages and policies required hereunder. Grantor agrees that the existence of any insurance shall not limit or otherwise affect Grantor ' s obligations under this Agreement. 4. Indemnification. Grantor hereby agrees to indemnify, defend and hold harmless the City, its officers, agents and employees from and against any and all actions , suits, claims , damages , losses, costs , penalties, obligations, errors, omissions or liabilities ( collectively "Claims or Liabilities" ) arising out of or in any way connected with any act., omission or negligence of Grantor, its agents, employees or contractors, or from the existence of the Sculpture on Grantor ' s Property, or related to this Agreement, including, without limitation, bodily injury to or death of persons , injury or damage to Property and attorneys ' fees, but excluding such Claims or Liabilities resulting solely from the willful misconduct of the City, its • • 3500 394199 officers , agents or employees who are directly responsible to the City. 5. Default . In the event of any default or breach of any of the covenants or conditions contained in this Agree- ment by Grantor , City shall have all rights and remedies permitted at law or in equity including, without limitation, the remedy of specific: performance. Additionally, in the event that Grantor has not cured any default hereunder within sixty ( 60 ) days after written notice from City of such default, City shall have the right to cure such default and charge Grantor with the cost thereof , including all costs incurred in connection with enforcing this Agreement or in collecting such amounts from Grantor . City shall also have the right in the event Grantor fails to cure a default as provided herein to remove the Sculpture from Grantor 's Property and terminate this Agreement . In such event, all costs associated with the removal of the Sculpture and the reinstallation of the Sculpture on other property shall be borne by Grantor and shall be paid immediately upon receipt of an invoice therefor . 6. Termination. In the event of any uncured breach or default by Grantor of any of the terms and provisions of this Agreement resulting in the removal of the Sculpture from Grantor ' s Property. Pursuant to Section 5 above, this Agreement shall terminate . At any time subsequent to the date of any conveyance or transfer of Grantor ' s property from Bird Medical Technologies, Inc. , as the original Grantor, whether voluntarily or by operation of law, City shall have the right , but not the obligation, to remove the Sculpture from Grantor ' s Property and terminate this Agreement with or without cause whether or not a breach or default exists in this Agreement. In the event City determines to remove the Sculpture from Grantor ' s Property and terminate this Agreement without the existence of a breach or default by Grantor, then all removal costs shall be borne by the City. In the event City elects to terminate this Agreement pursuant to this Section, City shall, at Grantor ' s request , deliver to Grantor a Quitclaim Deed releasing and relinquishing any rights City may have pursuant to this Agreement . 7 . Mortgagee Protection . No violation of this Agree- ment shall defeat or render invalid the lien of any mortgage or deed of trust given in good faith and for value . All of the covenants and Conditions contained herein shall be binding and effective against any party whose interest is derived through foreclosure , trustee sale , deed in lieu of foreclosure or otherwise; provided , however , that any mortgagee or beneficiary who takes title to Grantor ' s _1t_ • 3500 394199 Property pursuant to foreclosure or deed in lieu of foreclosure or any purchaser at a foreclosure or trustee sale shall take title free of any claims against Grantor arising under this Agreement which became due and payable prior to the date such mortgagee, beneficiary or purchaser takes title thereto. 8. Successors and Assigns . The obligations of Grantor under this Agreement shall be binding on Grantor ' s successors and assigns and shall burden the Grantor ' s Property and shall run with the land and be binding upon all successors and assigns acquiring any right , title and interest in and to Grantor ' s Property. 9 . Access to Public. Although the easements granted herein shall not constitute easements granted to the public, Grantor hereby agrees to allow the public access to Grantor ' s Property to view and enjoy the Sculpture at reasonable times and in a reasonable manner . 10 . Attorneys ' Fees . in the event that any action or proceeding is instituted for the interpretation or enforce- ment of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the other party, all costs and expenses related to such action or proceeding, including without limitation all attorneys ' fees and expert witness fees, both at trial and on appeal. 11. Waiver . No delay or omission in the exercise of any right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver . A party' s consent to or approval of any act by the other party requiring the party' s consent or approval shall not be deemed to waive or render unnecessary the other party' s consent to or approval of any subsequent act. Any waiver by any party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement . 12 . City Representative . The City of Palm Springs Public Arts Commission, an agency of the City of Palm Springs ( the "Commission" ) shall be the City ' s designated representa- tive with respect to this Agreement . The Commission shall have the authority to give any approvals or consents required hereunder and to otherwise act on behalf of the City for purposes of this Agreement . -5- 3500 394199 IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above written. Grantor : BIRD MEDICAL TECHNOLOGIES, INC. , a California corporation By: r !�?, •r Tt9 : C ipf Fxarntive officer N By: ��� s' '•' . It Secretary and Chief Financial Officer City: CITY OF P S, a municipal corporation By: Its: C •✓%`f .� • PUBLIC- TS COMMI SION ATTEST: By. /�11�2lC�- � man41kei-rk de APPROVED AS TO FORM: RUTAN & TUCKER Davi Aleshire City Attorney -6- ( 3500 394199 STATE OF CALIFORNIA ) ss . COUNTY OF QII/EIS/DC ) On hlna 113 1993 , before me, Nancy A. Keller , personally appeared Felix T. Trnilo John F KPcslar personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s ) whose name( s) +-T/are subscribed to the within instrument and acknowledged to me that -he;j4she/they executed the same in hinsmt r/their authorized capacity( ies) , and that by -h-ir�r/their signature( s) on the instrument the person( s ) , or the entity upon behalf of which the person( s ) acted, executed the instrument . WITNESS my hand and official seal . (SEAL) '•. NANCYA.KELLER f c''u .e COMM.#994558 z Notary PubIIC—California RIVERSIDE COUNTY MY Comm.Expires MAY 9,199 ' pq"'p"P7T s —y\ ALL-PURPOSE ACKNOWLEDGMENT 1 3500 NO209 State of Cal i forni a CAPACITY CLAIMED BY SIGNER Countyof Riverside ❑ INDIVIDUAL(S) ElCORPORATE OnOAA_99?Z�3 before me, Elaine L. Schwartz, Notary Public OFFICER(S) DAZE NAME,TITLE OF OFFICER-E G,'JANE DOE,NOTARY PUBLIC' TITLE(S) ❑ PARTNER(S) personally appeared Rob W. Parkins and J. Surnich ❑ ATTORNEY-IN-FACT NAME(S)OF SIGNER(S) ❑ TRUSTEE(S) [XI personally known to me-Ott-fl'pFeved-to-tfte-on-fhe-besi&e#satlsfaetery-eAdeRc,e- ❑ SUBSCRIBING WITNESS to be the persoR(�_)'whose nameW is/6i�[) subscribed to the within instrument and ac- knowledgedGUARDIAN/CONSERVATOR to me that he/sh t e xecuted ❑ OTHER: the same in his/her eir authorized OFFICIAL NOTARY SEAL capacity g , and that by his/her heir El AINE L.SCHWARTZ �1 signature6)on the instrument the person(sl) Notary Public—California f' ortheentityupon behalf of which the person(Q SIGNER IS REPRESENTING: 1 NAME OF PERSON(S)OR ENTITYUES) RIVERSIDE COUNTY t '•�Lv.:' My Comm Expires FEBo3199: acted, executed the instrument. Witness my hand and official seal. r SIGNeU)1;,Orf40TARY ATTENTION NOTARY:Although the information requested below is OPTIONAL,it could prevent baud nt attachment of this certificate to unaulhorized document. THIS CERTIFICATE Title or Type of Document MUST BE ATTACHED TO THE DOCUMENT Number of Pages Date of Document DESCRIBED AT RIGHT: Signer(s) Other Than Named Above 01991 NATIONAL NOTARY ASSOCIATION•8236 Remmet Ave •P O.Box 7184•Canoga Park,CA 91304-7184 ALL-PURPOSE ACKNOWLEDGMENT 394199 NO 209 State of CAPACITY CLAIMED BY SIGNER County of ❑ INDIVIDUAL(S) ❑ CORPORATE On before me, tiA/,J�, OFFICER(S) TITLE(S) ATV NAME,TITLE OF OFFICER ED,'JANE DOP,NOTARY POBL C' [I PARTNER(S) personally appeared J ❑ ATTORNEY-IN-FACT �� NAME(S)OFSIGNER(S) ❑ TRUSTEE(S) Its personally known to me —OR---p proved to me on the-basis of-satisfactory-evidence ❑ suascRlolNG WITNESS to be the perso%( Kwhose name,( re subscribed to the within instrument and ac- ❑ GUARDIAN/CONSERVATOR x •" ' - ^�-ti l knowledged to me that h sh hey executed ❑ OTHER: !� °'• OFFICIAL NOTARY SEAL ' the same in hi er eir authorized ELAINE L SCHWAR TL Notary public—Cablornia capacity,(Lsr and that by hi&�their •9 j„;g RIVSRSIDE COUNT, signature,(gi-fon the instrument the persorO), My Cornet E%puU:. I=Ea tl31A55 orthe entity upon behalf of which the person�af SIGNER IS REPRESENTING: . acted, executed the instrument. NAME OF PERSON(S)OR ENTITYDESI Witness my hand and official seal. OF NOTARV EDESCRIBED ARY:Although the information requested below Is OPTIONAL,it could prevent fraudulent al}aphment of this certificate to unauthorized document. ATE Title or Type of Document CHED Number of Pages ate of Document MENT RIGHT: Signers) Other Than Named Above 0 1991 NATIONAL NOTARY ASSOCIATION•6236 Remmet Ave.•P O.Box 7164•Canoga Park,CA 91304 7194 f 3500 • 394199 EXHIBIT "A" Legal Description A PORTION OF THE NORTHWEST WARTER OF SECTION 7, TCJWIEHIP 4 SOUTH, RANGE 5 EAST, SAN BMIARDINO MERIDIAN, DESCRIBED AS FOLLOWS: DMINNIM AT THE TRUE CENTER OF SECTION 7 AS SHOWN ON RS 67/85-96: THENCE NORTH 89037159" WEST, A DISTANCE OF 219.29 FEET TO THE TRUE PO= OF BEGINNING; THENCE NORTH 89037159" WEST, A DISTANCE OF 653.35 FEED; THE3SICE NORTH 0016131" EAST, A DISTANCE OF 990.45 FEET; THENCE SOUTH 89°50'42" EAST, A DISTANCE OF 657 .30 FEET; THENCE SCUM 0009 '42" EAST, A DISTANCE OF 992.86 FEET TO THE TRUE POINT OF BEGINNING. CCNIpRISING 14.94 ACRES, M)RE OR LEGS. Said land is also shown as Parcel 2 of Lot Line Adjustment No. L89-10 recorded Ncvenber 22, 1989 as Instrument No. 411023 of Official Records of Riverside County, California. EXHIBIT "A" TO GRANT OF EASEMENT AND AGREEMENT 3500 Description of Gnmt asement qow 394199 n ' BEGINNING AT THE S.W. CORNER OF PARCEL 2: THENCE NORTH 0a16'31" EAST, A DISTANCE OF 180.00 FEET TO BEGINNING POINT; n , , 2 , THENCE NORTH 0o16'31" EAST, A DISTANCE OF 50.00 FEET; rn THENCE SOUTH 89050'42" EAST, A DISTANCE OF 110.00 FEET; ' THENCE SOUTH 0016'31" EAST, A DISTANCE OF 50.00 FEET; THENCE NORTH 89o5D'42" WEST, A DISTANCE OF 110.00 FEET TO THE TRUE POINT OF BEGINNING. C3E$/n /J/NG PD/nl T� . . . . . . . . . . _ _ . . . - - . . . rL _-_ _ _ - - . . . __ . . _ . _ 1$0' 50� 510,,0 CENTER CPIVE - - - - - - - - - - - - -- - - , C — n�; zoo NC!1rJ()l ).► 11 ' , 1 i ' z h -s' --------------- -- - C 1 p t W 9, EXHIBIT "B" ti z TO GRANT OF EASEMENT AND AGREEMENT cll _ dbuo Bird Technologies Inc - Bill • •of Sale (per Exh A) AGREEMENT 3149 Executed 6-10-93 BILL OF SALE AND ASSIGNMENT THIS BILL OF SALE AND ASSIGNMENT is made as of June 10 , 199-3, from BIRD MEDICAL TECHNOLOGIES, INC. , a Cali ornia corporation ( "Seller" ) to the CITY OF PALM SPRINGS, a municipal corporation ( "Buyer" ) . KNOW ALL MEN BY THESE PRESENTS : That for good and valuable consideration to be paid pursuant to the provisions of that certain Agreement for Purchase and Sale of a Work of Art dated September 23 , 1992 between Buyer and Seller ( the "Purchase Agreement" ) Seller does hereby sell, assign, transfer and deliver unto Buyer , and its successors and assigns, that certain sculpture created by Mr . Damian Priour ( "Artist" ) entitled Flight ( the "Property" ) . To have and to hold all such Property unto Buyer, its successors and assit7ns forever . Seller hereby assigns , transfers and conveys all warranties, indemnities, agreements, covenants and chooses in action owned by Seller with respect to the Property or which were obtained from the Artist in relation to the Property, including, without limitation, all those representations, warranties and covenants contained in that certain contract between the Artist and Seller dated September 24, 1992, all copyrights to the Property, all rights to royalties resulting from the Property and the right to make reproductions and photographs or other renderings of the Property for both commercial and noncommercial purposes . IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of the date first above written. BIRD MEDICAL TECHNOLOGIES, INC. , a CalifoorrnJia/ corporation By I ts : Chief Executive Officer By: I ts : Secretary and Chief Financial Officer q,,I/• lo. W i,l r 3500 STATE OF CALIFORNIA ) COUNTY OF A Vt ) On June 10 , 1993 , before me, Nancy A. Keller , personally ap— peaie -' helix T. Trniln John F_ KPGsIPr personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s ) whose name( s ) /are subscribed to the within instrument and acknowledged to me that `hefs#e/they executed the same in trisfher-/their authorized capacity( ies) , and , that by h#T70tter/their signature(s) on the instrument the person(s}, or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (SEAL) ?%-- ON- NANCY A.KELLER COMM,i994558 z Notary Public—Californian RIVERSIDE COUNTY My Comm.Expires Mv1Y 9. 1997 r- PLEASE COMPLETE THIS I1ORMATION 3500 RECORDING REQUESTED BY: o w� rn x- rn M AND WHEN RED ROED- AIL TO: LL I wn Big 0 0 THIS SPACE FOR RECORDER'S USE ONLY 9 Y . THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION (Additional recording fee applies) `0 11/92 Bird Medical Technologies Inc Work of Art - Purchase & Sale AGREEMENT #3149 M05078, 9-16-92 AGREEMENT FOR PURCHASE AND SALE OF A WORKrvr-tuxx - This "Agreement" is entered into as of �'•- ,_' 1992 by and between the CITY OF PALM SPRINGS,a municipal corporation ( "City") and. BIRD MEDICAL TECHNOLOGIES, INC. , a California corporation ( "Bird") . RECITALS: A. The City is interested in acquiring works of art for placement on appropriate private property which encourages public access and viewing. B. Bird desires to commission a work of art and have such work of art placed on its property. C. City desires to purchase from Bird the work of art for purposes of placing such work of art on Bird' s property subject to each of the terms and conditions of this Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows: 1. City Representative. The City of Palm Springs Public Arts Commission, an agency of the City of Palm Springs (the "Commission" ) shall be the City' s designated representa- tive with respect to this Agreement. Under the direction of the City Council, the Commission shall have the authority to give any approvals or consents required hereunder and to otherwise act on behalf of the City for purposes of this Agreement. 2. Agreement to Commission Work of Art. Bird hereby agrees to commission a sculpture (the "Sculpture" ) to be created by Mr. Damian Priour ( the "Artist" ) . Bird shall be solely responsible with respect to the contract entered into for the commissioning of the Sculpture, including responsi- bility for all payments to be made thereunder. Bird shall enter into a contract (the "Contract" ) with the Artist and the Imago Gallery, if applicable, which shall be reviewed and approved by the Commission prior to its execution by Bird, and which shall include the following provisions: (a) Warranty. The Artist shall warrant that the Sculpture will be free of defects in workmanship and/or materials, and that: the Artist will, at the Artist ' s sole cost and expense remedy any defects due to faulty workmanship and/or materials. This warranty includes any workmanship or materials which cause the Sculpture 2/347/014084-0001/07 8/25/92 to deteriorate over time in a manner inconsistent with the plans and specifications or as would be expected from products made of similar materials. (b) Maintenance. The Artist shall supply Bird with specifications as to the methods and materials used in the Sculpture and shall recommend and submit a maintenance program for the Sculpture. (c) Plans and Specifications/Completion of Work. The Sculpture shall be constructed according to the model and plans and specifications approved by the Commission on March 12, 1992 and shall be approximately eight (8) feet in width at the base and eighteen (18) feet high (collectively the "Plans and Specifications" ) . The Sculpture shall be completed and ready for unveiling one hundred twenty (120) days after the execution of the contract between Artist and Bird. (d) Acceptance of Work. Bird shall not accept the completed Sculpture until the Sculpture _ _ has been aacepted by. the__City_Council and the Commission. Bird may accept the Sculpture when the Commission has adopted a resolution finding: (i) That the work conforms to the Plans and Specifications or to any modifications thereof approved by resolution of the Commission; ( ii) That the Sculpture has been transported to its ultimate site and completed on a timely basis or that the Commission for good cause has waived the City' s right to so require. (e) Right to Make Modifications. The City shall have the right, prior to the acceptance of the Sculpture, to request that modifications be made to the Sculpture, and such modifications shall be performed prior to acceptance. Any expense associated with such modification shall be borne by the City. (f) Waiver . Due to the nature of the Sculpture and the site on which it is to be placed and the public interest of the City, Artist and his agents, heirs, successors and assigns hereby waive any and all rights they may have under the California Art Preservation Act, as set forth in California Civil Code Section 987. The Artist, his agents„ heirs, successors and assigns also agree not to attempt to defeat this waiver by cooperating with any other person or organization which seeks to bring an action under California Civil Code Section 989. -2- (g) Rights to Sculpture. Subsequent to the acceptance of the Sculpture and payment therefor, the Sculpture and all rights thereto shall be conveyed by Artist to Bird, as the owner thereof, including the right to display the work in places of the owner ' s choosing and to loan the work to other persons or entities. The owner shall have the right to make reproductions, photographs and other two and three dimensional reproductions of the Sculpture for both commercial and non--commercial purposes. Any and all royalties resulting from the Sculpture shall belong to the owner thereof. The Artist shall copyright the Sculpture and all rights under the copyright shall be transferred to the owner together with the Sculpture. (h) Warranties of Artist. The Artist shall make the following warranties which shall specifically provide that they are transferable to the City: (i) The Artist warrants that the work will not present a danger to the public and shall not contain features which the Commission deems a danger to the public and agrees to cooperate in making and permitting adjustments to the work to eliminate hazards which become apparent within one (1) year of the date the work is finally accepted; (ii) The Artist warrants that the work is a result of the artistic efforts of the Artist and that it will be installed and delivered free and clear of any liens, claims or other encumbrance of any type; and (iii) The Artist warrants that the work is unique and a single edition, and that the Artist will not execute or authorize another to execute another work of substantially the same design as the Sculpture. The covenants and warranties of the Artist shall tie binding on the Artist ' s heirs and assigns. (i) Transferability. Artist shall agree that all of the covenants, representations and warranties of Artist contained in the Contract shall be transferable to the City. 3. Agreement for Purchase and Sale of Sculpture. Within fifteen (15) days after Bird has obtained free and clear title to the Sculpture and the Commission has accepted the Sculpture as provided in Section 2(d) above, Bird shall convey all right, title and interest in and to the Sculpture by the execution and delivery of a Bill of Sale in the form attached hereto as Exhibit "A" , to the City and City agrees -3- to accept such Sculpture. The Bill of Sale shall assign and convey the Sculpture and all rights, warranties and copyrights obtained from the Artist pursuant to the contract entered into with the Artist pursuant to the above referenced requirements. 4. Payment of Purchase Price. The City shall pay to Bird, as the purchase price for the Sculpture and all rights incidental thereto, an amount equal to the lesser of: ( i) the actual amount paid by Bird to the Artist under the Contract; or (ii) Fifty Thousand Dollars ( $50,000.00) . The purchase price shall be delivered to Bird in the form of a City check within thirty (30) days from the receipt and approval by the Commission of Bird' s invoice for the amount of the purchase price, but no earlier than the acceptance of the Sculpture by the City and the delivery of the Bill of Sale to the City. Bird's invoice shall evidence the actual amount paid to the Artist under the Contract. 5. Location of Sculpture. Upon completion and acceptance, the Sculpture shall be located on a portion of the Bird property as depicted on Exhibit "B" attached hereto and incorporated herein and, subject to the terms of this Agreement and the Easement, the City agrees not to remove the Sculpture from the Bird property so long as such property is owned by Bird; provided, however, that the City may remove, but shall not be obligated to do so, the Sculpture at any time after a transfer or conveyance of such Bird property, whether voluntarily or by operation of law. City also agrees not to modify the Sculpture without Bird' s consent at any time prior to the time of any conveyance or transfer of the Bird property by Bird, either voluntarily or by operation of law. 6. Duties of Bird. As provided above, the City has agreed to locate the Sculpture on a portion of the Bird property provided that Bird complies with each and every covenant and obligation of Bird contained in this Agreement including, without limitation, the following: (a) Construction of Improvements. Bird shall construct an appropriate sculpture foundation measuring two ( 2) feet in height by eight (8) feet in width of a material and design, and subject to plans and specifica- tions approved by the Commission together with landscape mounding surrounding the sculpture foundation up to four (4) feet in height as approved by the Commission and City Planning Department. (b) Grant of Easement. Bird shall grant an ease- ment to the City for the placement of the Sculpture on that portion of; the Bird property shown on Exhibit "B" which easement shall be in the form of Exhibit "C" -4- attached hereto and incorporated herein (the "Easement") . Bird shall comply with each and every of the covenants and conditions contained in the Easement. The Easement shall be granted, delivered and recorded in the Official Records of Riverside County, California concurrently with the delivery of the Bill of Sale. (c) Installation. Bird shall provide for the installation of the Sculpture on the site at its cost in accordance with plans approved by the Commission. 7. Miscellaneous Provisions. (a) Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns. (b) Integration. This Agreement and other documents expressly incorporated herein by reference contain the entire and exclusive understanding and agreement between the parties relating to the matters contemplated hereby and all prior or contemporaneous negotiations, agreements, understandings, representations and statements, oral or written, are merged herein and shall be of no further force or effect. (c) Modifications . Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made by written instrument or endorsement thereon and in each such instance executed on behalf of each party hereto. (d) Severability. If any term, provision, condition or covenant of this Agreement or the application thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this instrument, or the application of such term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. (e) Governing Law. This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement. (f) Attorneys ' Fees. In the event of any dispute between the parties to this Agreement or any action or -5- proceeding to enforce any provision of this Agreement or to seek a declaration of rights under this Agreement, the prevailing party or parties shall be entitled to recover from the other party or parties all expenses, fees and costs of such matter, including without limitation reasonable attorneys ' fees and any costs of appeal, investigation, preparation and professional or expert consultation or testimony incurred in connection with the matter. (g) No Waiver,. No delay or omission by either party hereto in exercising any right or power accruing upon the compliance or failure of performance by the other party hereto under the provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof . A waiver by either party hereto of a breach of any of the covenants, conditions or agreements hereof to be performed by the other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions hereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. BIRD MEDICAL TECHNOLOGIES, INC. , a C ] ifornia corporation By: Its: "Bird" (Signatures continued on next page] �l -6- • �q CITY OF P a munici al corporate By: Its:- "City" PUBLIC-- TS COMMISSION Chairman ATTEST: 1, Et,y/Clerk Approved as to form: RUTAN & TUCKER APPRO11tFID r0l City A•tyfbrney — Sad eCilyd.�SG�.C�Cv.%__ / 7 By: David J. Aleshire1/7 � J -7- BILL OF SALE AND ASSIGNMENT THIS BILL OF SALE AND ASSIGNMENT is made as of , 199 from BIRD MEDICAL TECHNOLOGIES, INC. , a California corporation ( "Seller" ) to the CITY OF PALM SPRINGS, a municipal corporation ( "Buyer" ) . KNOW ALL MEN BY THESE PRESENTS: That for good and valuable consideration to be paid pursuant to the provisions of that certain Agreement for Purchase and Sale of a Work of Art dated , 1992 between Buyer and Seller ( the "Purchase Agreement" ) Seller does hereby sell , assign, transfer and deliver unto Buyer, and its successors and assigns, that certain sculpture created by Mr. Damian Priour ( "Artist" ) entitled j ( the "Property" ) . To have and to hold all such Property into Buyer, its successors and assigns forever . Seller hereby assigns, transfers and conveys all warranties, indemnities , agreements, covenants and chooses in action owned by Seller with respect to the Property or which were obtained from the Artist in relation to the Property, including, without limitation, all those representations, warranties and covenants contained in that certain contract between the Artist and Seller dated , all copyrights to the Property, all rights to royalties resulting from the Property and the right to make reproductions and photographs or . other renderings of the Property for both commercial and noncommercial purposes . IN WITNESS WHEREOF, Seller has executed this -Bill of Sale as of the date first above written. BIRD MEDICAL TECHNOLOGIES, INC. , a California corporation By: Its: By: i Its : EXHIBIT "A" TO AGREEMENT FOR PURCHASE AND SALE 2/347/014084-0001/09 8/13/92 JIHIHX3 Y, -------------------- i r1 i LOCATION OF SCULPTURE — -------------- --- -------------------------- 3tI83 .311433 Od:u .__..-. .. . ... ...............................................__.__.._.--.____.-_._-_. w g r. V __________________ _ •' I:vdi Ab1OY 3439 _ - _______________________ w". II }I RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF PALM SPRINGS Public Arts Commission Attn: (For Recorder ' s Use Only) GRANT OF EASEMENT AND AGREEMENT This Grant of Easement and Agreement (this "Agreement") is made as of , 1992 by and between BIRD MEDICAL TECHNOLOGIES, INC. , a California corporation ( "Grantor" ) and the CITY OF PALM SPRINGS, CALIFORNIA, a municipal corporation (the "City") . R E C I T A L S: A. Grantor is the owner of that certain real property located in the County of Riverside, State of California, more particularly described on Exhibit "A" attached hereto ("Grantor ' s Property" ) . B. City is the owner of a certain sculpture ( "Sculpture" ) created by Damian Priour ( "Artist" ) which Grantor desires City to locate on a portion of Grantor 's Property. C. To facilitate location of the Sculpture upon Grantor ' s Property, Grantor desires to grant to City an easement for purposes of placing the Sculpture on Grantor ' s Property as more particularly provided herein. NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the parties hereby agree as follows: 1. Grant of Easement. Grantor hereby grants and conveys tc City a perpetual non-exclusive easement in gross over that portion of Grantor ' s Property legally described or depicted on Exhibit "B" attached hereto and incorporated herein (the "easement area" ) for purposes of placing the EXHIBIT "C" TO AGREEMENT FOR PURCHASE AND SALE 2/347/014084-0001/08 8/25/92 � /f Sculpture thereon and for access over and across the Grantor ' s Property and for purposes of maintaining, repairing and replacing, if necessary, the Sculpture and for the removal thereof. 2 . Maintenance. Grantor hereby agrees to maintain the easement area, including all access paths, landscaping and other improvements , in first class condition, and shall maintain the Sculpture in first class condition and shall perform all maintenance recommended by the Artist with respect to the Sculpture. Grantor shall repair and/or replace any damage to the Sculpture within fourteen ( 14) days of such damage being discovered. In the event any graffiti is discovered on the Sculpture, Grantor shall remove such graffiti on the same day it is discovered. It is the intent of the parties that so long as the Sculpture remains on Grantor ' s Property, Grantor shall keep, maintain, repair and replace the Sculpture such that it remains in a good, clean and first class condition and of the highest quality. Materials used to restore, repair or replace any portion of the Sculpture shall be of equal or better quality than the original materials used in the Sculpture. When necessary, Grantor shall consult the Artist or another competent art work conservationist or restoration specialist to determine the best methods of such restoration or repair . All such maintenance, repair , replacement and restoration shall be at the sole cost of Grantor . 3 . Insurance. Grantor shall procure and maintain, at its sole cost and expense, in a form and content consistent with industry standards, with an insurer qualified to do business in California and rated "A" or better in the most recent edition of Best Rating Guide with a financial class category of Class VII or better, unless such requirements are waived by the Risk Manager of the City, during the entire term of this Agreement and at all times while the Sculpture is located on Grantor ' s Property, the following policies of insurance: (a) Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance together with a Broad Form CGL Endorsement and insuring against contractually assumed liability which shall specifically insure Grantors indemnity obligations under Section 4 below. The policy of insurance shall have a combined single limit liability of One Million Dollars ( $1,000 , 000 . 00 ) . (b) Workers ' Compensation Insurance. A policy of workers ' compensation insurance in an amount as would -2- fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both Grantor and the City against any loss, claim or damage arising from any injuries or occupational hazards or diseases occurring to any worker employed by or any person retained by Grantor in the course of carrying out the obligations of this Agreement. (c) Property :Insurance. Grantor shall procure and maintain a policy of property insurance which shall specifically cover the Sculpture providing protection against any peril included within the classification of "fire and extended coverage" , "all risk" and/or "special form" , together with insurance against vandalism, theft and malicious mischief. The policy and certificate evidencing the policy shall specifically reference the coverage of the Sculpture. All of the above policies of insurance shall be primary insurance and shall name the City, its officers, employees and agents as additional. insureds. The insurer shall waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. All of such policies shall provide that such insurance may not be amended or cancelled without providing thirty (30) days prior written notice by registered mail to the City. In the event any of such policies are cancelled, Grantor shall, prior to the cancellation date, submit new evidence of insurance in conformance with the requirements of this Section 3. Grantor shall provide the Commission with Certificates of Insurance evidencing the insurance coverages and policies required hereunder . Grantor agrees that the existence of any insurance shall not limit or otherwise affect Grantor ' s obligations under this Agreement. 4. Indemnification. Grantor hereby agrees to indemnify, defend and hold harmless the City, its officers, agents and employees from and against any and all actions, suits, claims, damages, losses, costs, penalties, obligations, errors, omissions or liabilities (collectively "Claims or Liabilities" ) arising out of or in any way connected with any act, omission or negligence of Grantor, its agents, employees or contractors, or from the existence of the Sculpture on Grantor ' s Property, or related to this Agreement, including, without limitation, bodily injury to or death of persons, injury or damage to Property and attorneys ' fees, but excluding such Claims or Liabilities resulting solely from the willful misconduct of the City, its -3- officers, agents or employees who are directly responsible to the City. 5 . Default . In the event of any default or breach of any of the covenants or conditions contained in this Agree- ment by Grantor , City shall have all rights and remedies permitted at law or in equity including, without limitation, the remedy of specific performance. Additionally, in the event that Grantor has not cured any default hereunder within sixty ( 60) days after written notice from City of such default, City shall have the right to cure such default and charge Grantor with the cost thereof, including all costs incurred in connection with enforcing this Agreement or in collecting such amounts from Grantor . City shall also have the right in the event Grantor fails to cure a default as provided herein to remove the Sculpture from Grantor ' s Property and terminate this Agreement . In such event, all costs associated with the removal of the Sculpture and the reinstallation of the Sculpture on other property shall be borne by Grantor and shall be paid immediately upon receipt of an invoice therefor . 6 . Termination. I:n the event of any uncured breach or default by Grantor of any of the terms and provisions of this Agreement resulting in the removal of the Sculpture from Grantor ' s Property. Pursuant to Section 5 above, this Agreement shall terminate . At any time subsequent to the date of any conveyance or transfer of Grantor ' s property from Bird Medical Technologies, Inc. , as the original Grantor, whether voluntarily or by operation of law, City shall have the right, but not the obligation, to remove the Sculpture from Grantor ' s Property and terminate this Agreement with or without cause whether or not a breach or default exists in this Agreement. In the event City determines to remove the Sculpture from Grantor ' s Property and terminate this Agreement without the existence of a breach or default by Grantor, then all removal costs shall be borne by the City. In the event City elects to terminate this Agreement pursuant to this Section, City shall, at Grantor ' s request, deliver to Grantor a Quitclaim Deed releasing and relinquishing any rights City may have pursuant to this Agreement. 7 . Mortgagee Protection. No violation of this Agree- ment shall defeat or render invalid the lien of any mortgage or deed of trust given in good faith and for value. All of the covenants and conditions contained herein shall be binding and effective against any party whose interest is derived through foreclosure, trustee sale, deed in lieu of foreclosure or otherwise; provided, however , that any mortgagee or beneficiary who takes title to Grantor ' s -4- Property pursuant to foreclosure or deed in lieu of foreclosure or any purchaser at a foreclosure or trustee sale shall take title free of any claims against Grantor arising under this Agreement which became due and payable prior to the date such mortgagee, beneficiary or purchaser takes title thereto. 8. Successors and Assigns . The obligations of Grantor under this Agreement shall be binding on Grantor ' s successors and assigns and shall burden the Grantor ' s Property and shall run with the land and be binding upon all successors and assigns acquiring any right, title and interest in and to Grantor ' s Property. 9 . Access to Public. Although the easements granted herein shall not constitute easements granted to the public, Grantor hereby agrees to allow the public access to Grantor ' s Property to view and enjoy the Sculpture at reasonable times and in a reasonable manner . 10 . Attorneys ' Fees . In the event that any action or proceeding is instituted for the interpretation or enforce- ment of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the other party, all costs and expenses related to such action or proceeding, including without limitation all attorneys ' fees and expert witness fees, both at trial and on appeal . 11. Waiver. No delay or omission in the exercise of any right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver . A party ' s consent to or approval of any act by the other party requiring the party ' s consent or approval shall not be deemed to waive or render unnecessary the other party ' s consent to or approval of any subsequent act . Any waiver by any party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement . 12. City Representative. The City of Palm Springs Public Arts Commission, an agency of the City of Palm Springs ( the "Commission" ) shall be the City ' s designated representa- tive with respect to this Agreement . The Commission shall have the authority to give any approvals or consents required hereunder and to otherwise act on behalf of the City for purposes of this Agreement . -5- IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above written. Grantor : BIRD MEDICAL TECHNOLOGIES, INC. , a California corporation By: Its : By: Its : City: CITY OF PALM SPRINGS, a municipal corporation By: Its : PUBLIC ARTS COMMISSION By: Chairman ATTEST: City Clerk APPROVED AS TO FORM: RUTAN & TUCKER David J. Aleshire City Attorney -6- s � STATE OF CALIFORNIA ) Ss. COUNTY OF ) On 1992 , before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s ) whose name( s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity( ies ) , and that by his/her/their signature(s) on the instrument the person(s ) , or the entity upon behalf of which the person( s ) acted, executed the instrument . WITNESS my hand and official seal . (SEAL) XX -7- STATE OF CALIFORNIA ss . COUNTY OF ) On , 1992, before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity( ies) , and that by his/her/their signature(s) on the instrument the person(s ) , or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (SEAL) -8-