HomeMy WebLinkAboutA8551 - PALM SPRINGS CHAMBER OF COMMERCE - LOVE LETTERS AGREEMENT FOR THE JOINT USE
OF
"LOVE LETTERS"PUBLIC ARTWORK
This Agreement forth Joint U e of"Love Letters" Public Artwork(°Agreement")
is made and'entered into-on May r2020; by and between'the City of Palm Springs,
a. California charter city ("City") and .the Palm Springs Chamber .'of :Commerce,: a
California non-profit corporation ("Chamber"). City and :.Chamber: are individually
referred to as "Party" and are collectively referred to as the "Parties."
RECITALS.
WHEREAS,,the:City.and Chamber value the vibrant cultural community that has
:helped make Palm Springs a great-place to live and::work, as well as.,a-top destination '
for world renowned'events,,architecture,,and artwork-, and;
WHEREAS,•City desires to commission an interactive work of mobile art created _.
by,Jack Rivers, Owner of Canyon Copy and .Print, and is named "Loue:Letters". The
Artwork consists of two (2);metal sculptures,ahe first piece being an approximately six
- . . . foot tall`"P" and."S,". and the second,piece being .an ap proximately.six, foot tall heart
shape and a "U.": Residents and visitors are invited to stand between.the two pieces-and ,
become the "I"'in the phrase."PS I'llove]:U..".-.It is the intent:of the Parties to wrap the
heart shape:with different•ddsigns to embody different local'eVents happening in the
City, and/or Coachella Valley, 'and beyond. A rendering of the Artwork is attached
hereto.as Exhibit"A";,,and, ..
WHEREAS, ,the City and :Chamber desire to. work-together,to ensure that the
Artwork is displayed in prominent areas throughoutthe`City during different.times of-the
year, used:in various promotional campaigns,-and is property Maintained for the benefit
of residents, businesses, and visitors, alike:
NOW, THEREFORE, in consideration of the foregoing recitals'and of the mutual
promises,. off the covenants hereinafter ..contained, and 'for good and valuable
consideration„the:receipt and sufficiency ofwhich is hereby acknowledged, the Parties
hereto agree as follows:
1. Recitals..,.The above-referenced• Recitals •are,'hereby incorporated into. the
Agreement as .though fully set forth in this Agreemerit.and each..Party.acknowledges
and agrees,that such Party is bound;for purposes of this Agreement, bythe•same.
2. Effective Date. The Parties agree that a condition precedent to the effectiveness
of this Agreement is:the full execution of the Copyright,Agreement, attached hereto as
Exhibit "B and incorporated by reference:herein between ;Jack Rivers:.(the "Artist")
and the City. The date that such Copyright Agreement shall be the "Effective Date" of
this Agreement. In the event the 'sale of the Artwork'does not occur, :this Agreement
shall automatically be null and void without further action by the Parties.
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3. Term. This Agreement shall continue in full,force and effect for a period of five:
(5) years commencing on, the Effective Date; unless earlier terminated: . .Unless
terminated; this Agreement shall thereafter automatically•renew on twelve (12) month
terms. This Agreement may be further amended to extend the term by mutual written,
agreement of the Parties..
4. Termination. Either may terminate this Agreement in the event the other Party
materially breaches the terms of this Agreement. In such case, the non-defaulting Party
must deliver,written notice of breach to the other Party, which then shall have thirty (30)
calendar'days to cure,the 'breach._ In the:event, the. defaulting Party fails to cure the
.:'breach within thirty (30) calendar days, then the non=defaulting Party,, may, in,addition to
any other,remedies available Wit by law.orequity; deem this Agreement terminated:
5:..: " Ownership of Artwork: The .City shall own the:Artwork. If the City chooses to .
seli: the Artwork; :the Chamber, shall have the right 'of first refusal'.to purchase. the. ,
Artwork: .: . ..
Acquisition of Artwork:.Chamber shall be responsible for acquiring the Artwork.
from Artist. City shall pay_Ten Thousand:dollars ($10,000) toward the purchase price,
which is: Seventeen -Thousand Three` Hundred and, `Nine Dollars and. :96/100
($1.7,309.96). The,Chamber shall-pay the remaining Seven Thousand Three Hundred
and Nine Dollars and 96/1.00 ($7,309.96) toward the purchase price.
_7. Joint Use of Artwork. The City 'and'Chamber agree that the specific terms and
conditions of the.joint.use of the' Artwork by each Partywill be as follows:
;, ;.... 7.1.:,: : City and Chamber may utilize:the Artwork for promotional events .without
additional monetary considerationao,the other Party
7.2 Cityand Chamber shall 'conduct periodic:.meetings for the,he. purpose of
determining the location for the Artwork; the periodic,wrap design for the heart shape ,
component of the Artwork, whether the Artwork needs repair or maintenance, or any
other:subject related to the joint use of the Artwork ("Artwork Meetings").
7.3 City,:shall have first priority use of-the Artwork. City ;agrees to notify
Chamber of any dates and times thaYCity will require exclusive use of Artwork.
7.4 Chamber shall be responsible; at'its sole:cost and expense, for storing the
,ArKvo,rk when not 'being used at any of the various locations decided upon by the
Parties: ' '
7.5 City shall be responsible, at its -sole, cost and ..expense, for the:° ;.
maintenance and repair, as well as the transporting; relocating and setting-up/taking
down, of the Artwork. City may delegate:such responsibilities to one or more other
entities, provided that such entities: comply with the. terms of this Agreement. The
Parties agree to schedule any planned, renovation,-and/or repairs in a manner to
minimize impact upon each other and other community uses and to submit any planned
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55575.18110%32a95664a
renovation/repairs to. Artwork at. the Artwork Meetings so as 161 assist in accurate
seasonal planning.
7.6 Each Party shall be.wholly responsible to repair any and all damages or
vandalism to the Artwork.caused by its employees, subcontractors or agents.
8. Right to•Artwork. All copyrights to,the Artwork:are setforth in accordance with
the• terms and . conditions set :forth in Exhibit "B" attached tie�eto ("Copyright ,
Agreement").
_. .
9. Indemnification. Chamber agrees to hold harmless, defend-, and indemnify City
against all actions,.claims,,or demands for injury., death`, loss, or damage„regardless of
fault :or. cause, by anyone whomsoever (except where. such injury, death, loss, or .
damage was solely due to the willful acts or'omissions of City, its agents, seniants, or. ..
employees), whenever such injury; death, loss.:or: 'damage is a, consequence of, or
arises out of the use of the Artwork by Chamber of its agents;servants, employees, or
implementation of this Agreement. Notwithstanding .the foregoing, the Chamber's
obligation to defe.nd' the City or any.bf its agents and:employees for:any judgment or.
settlement, shall 'extend, only to the percentage of negligence of the Chamber in
contributing to such claim, damage, loss;: and expense She Chamber, waives all
subrogation rights:against the City for!benefits paid to its employees for injuries growing
out of the performance of this Agreement.
10. Insurance..Chamber shall:procure and maintain, at its sole,cost and"expense;:in .
a"form and content consistent with- industry standards; with an insurer qualified to d,6
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 City Attorney,; during the entire1erm of this :Agreement and at all
times while the Artwork is being jointly used,.the following policies of insurance: ...
`10.1 Comprefiensive..General Liability Insurance. Insurance:Services Office;
Form CG 00 .01: covering CGL on an "occurrence basis, including products :'and
completed,operations,:property damage, bodily injury and personal & advertising•injury
with limits no less than•$2;000,000.pe,r occurrence. If a general aggregate limit applies,
either the general aggregate limit shall,apply separately-to this projectflocation (ISO CG
25 03 05 09 or 25 04.05: 09) or the general aggregate limit shall be twice the required
occurrence, limit. The olic of coin reheosive eneral liability insurance shall insure
p. ..y, . P 9... . tY
,against contractually assumed liability, which shall specifically.. insure Chamber's
indemnity obligation under Section 9, above,
10.2 Workers'Compensation Insurance. A policy of Workers' Compensation,.
Insurance in an amount as would fully comply with;the laws of the State of California
and which shall indemnify,.insure and provide-legal defense.for both Chamber 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 Chamber in
the course of carrying out the obligations of this Agreement.,
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10.3 Fine Arts Insurance. The City will add.the Artwork to its list of insured
artworks belonging to the City.
16.4 Automobile Insurance. ISO Form Number CA 00 01 covering any auto: .
(Code 1), or if.Chamber has no owned autos, covering hired, (Code 8) And.non-owned
autos (Code 9), with limit no less than $1,000,000 per.,accident for bodily injury and
property damage.
10.6. All of the above policies of insurance shall.be primary insurance;and shall
name, the .City, its officers,;enrployees, 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 such :policies shall
provide that such insurance may not be amended or canceled without providing thirty
(30) calendardays written notice by_registered mail to the City.Cancellation clause shall
read "SHOULD ANY OF THE ABOVE DESCRIBED POLICIES ::BE CANCELED
. ..
BEFORE.THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY SHALL
MAIL. 30 CALENDAR DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER
NAMED TO THE LEFT". In the eve nt:any of such policies are canceled, Chamber shall;
prior to the cancellation:date, submit new evidence of insurance in conformance with
the requirements of this Section. Chamber shall provide the City with Certificates .of
insurance evidencing the insurance coverages and policies required hereunder.
Chamber agrees that the existence of any insurance shall not limit or otherwise affect
Chamber's obligations. under. this Agreement:
10.6 In the event the City;Attorney determines-that the work or. services to be
performed under this Agreement create an,increased or decreased risk or loss to the
City, the Chamber agrees that the.minimum limits of the insurance policies required by
this.Section may be changed accordingly upon'.receipt of written notice.from the'Risk
Manager, provided that the Chamber shall have the'right to•appeal a determination of
increased coverage by the Risk. Manager o the City Council: of City within ten (10)
calendar days of receipt of notice from.the Risk Manager.
11. Miscellaneous Provisions.
11.1 Governing Law. This.Agreement shall.be construed and interpreted both'
as to validity and to performance of the:Parties in accordance with the laws of.the State
of California. Legal actions'concernin an & ute claim or matter arisin .out of or in.
9. 9 Y P 9
relation to this Agreement shall .be. instituted in the, Superior Court of the County of
Riverside, State of California,-or:any. other appropriate court in such county, and
Chamber covenants and agrees to submit.tothe personal jurisdiction of such court in
the event of such action.
11.2 Interpretation. This Agreement shall be construed as a whole according
to its'fairlanguage and common meaning to achieve the objectives and purposes of the
Parties. The terms of this Agreement are contractual and the resuit:.of negotiation
between the Parties. :Accordingly, any rule of construction of contracts (including,
without limitation, California Civil Code 'Section 1654) that ambiguities. are .to be
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55575.181701328956642
construed against the drafting party; shall not be employed in the interpretation of this
Agreement. .The caption headings of the various `sections and paragraphs of this
Agreement are for convenience and identification purposes :only and shall not be
deemed to limit,., expand,- or define the contents of the respective sections or
paragraphs.
11.3 Waiver. No delay.or omission in'the exercise of any right,or remedy of a
non-defaulting pagy'on any default shall impair such,right or remedy or.be construed'as
a waiver.::.No consent or .approval of 'City shall be deemed to waive or render
unnecessary City's consent to or.approval-of any subsequent act of Chamber. Any
waiver by either Party of any default must be in.Writing. No such waiver shall be a
waiver .of any other ;default concerning the; same or any other 1provision of this
Agreement. .. .
11.4 Rights and Remedies.Are Cumulative.:Except With respect to rights and.
remedies:expressly declared to be exclusive:inthis Agreement,the rights and remedies
of the Parties are cumulative. The,exercise by either,Party of one or-more of such rights. .
or remedies shall_not preclude the.exercise by it, at the same or different times, of any
other rights or remedies for the same default or any otherdefault by the other:Party.
11.5 Legal Action. In addition to any other rights or remedies, either Party may
take legal action, in law or in equity; to cure, correct; or remedy any default, to recover
damages for any default, to compel specific performance of this Agreement, to obtain
injunctive relief, a .declaratory judgment, or any other remedy consistent with 'the
purposes of this Agreement.
11:6 Notice. Any notice, demand, ..request, consent, approval, or
communication that either Parry desires, or is required to give to the other Party oe any •.
other:.person shall be in writing and-either served personally or sent by pre-paid, first
class mail to the address set forth below: .Notice shall tie deemed communicated
seventy-two (72) 'hours from the time of mailing if mailed as provided in this Section.
Either Party may .change its address by notifying the other Party of the .change of
address in writing.
To City: City of Palm Springs
Attention: City Manager
3200 E. Tahquitz Canyon Way .. ..
Palm Springs, California 92262
To Chamber: Palm Springs Chamber of Commerce
Attention: Nona Watson
190 W.-Amado Road
Palm Springs, California 92262
11.7 Integrated Agreement: This Agreement contains all of the agreements of
the Parties and supersedes all other written agreements.
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11.8 Amendment. No.amendments or other 'modifications of this Agreement
shall be binding unless through-written agreement by'all Parties.
11.9 Severability. Whenever.possible, each provision of'this Agreement shall
be interpreted in sucha manner as to:be effective and valid under applicable law. In the
event that any one ornrore-of the ph rases,:sentences, cl.auses;:paragraphs;or sections
..contained in .this Agreement. shall be declared: invalid or' unenforceable by valid
judgment or decree of a court of competent:.jurisdictioni . such invalidity. or
unenforceability shall not affect any of=the remaining phrases, sentences,::clauses,
paragraphs, or sections of this Agreement;:which shall be interpreted to carry out the
intent of the parties.
. 11.40 Successors in Interest. This Agreement shall-be binding upon and inure
to,the benefit of the Parties' successors and assignees..
11:11 Third Party Beneficiary. Except as may tie expressly provided:for-in this
•
Agreement, nothing contained in this Agreement is intended to.. confer, nor .shall
Agreement be, construed as confetr'ing, any rights;'including, Without. limitation, any
rights.as a third-party beneficiary or otherwise, upon any entity or person not a.party to
this Agreement.
[SIGNATURES, ON NEXT PAGE]
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55575.1eu0\329956643
IN WITNESS-WHEREOF, the Parties have executed this Agreement for the Joint
Use of"Love Letters" Public Artwork as of the dates stated below.
"CITY„
City of Palm Springs
Date: ��-2 o By:
David H. Ready,'Ph.D.
City Manager
APPROVED AS TO FORM: ATTEST
By: By:. w
Je ey 8. 8allin§k' thony J. Meji M
City Attorney City Clerk .
APPROVED BY CITY COUNCIL:,
Date: Agreement No.
"CHAMBER"
THE PALM SPRINGS. :CHAMBER OF
COMMERCE
Date: �� B
Nona atson; President and CEO
Page 7 of 15
55575.18110\32895664.2
Exhibit "A"
Renderings of Artwork
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Page 8 of 15
55575.18110\32895664.2
Exhibit aAn.
Renderings of Artwork
(Cont'd)
Samples
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Page 9 of 15
55575.18110\32895664.2
Exhibit"B"
COPYRIGHT AGREEMENT
This. COPYRIGHT .AGREEMENT'- ("Agreement") v is _ entered ' into as of
2020 .by and between the . CITY OF PALM SPRINGS,: a.
California charter city ("City"), Jack Rivers, an individual, co-owner of Canyon Copy
Print; a California corporation ("Artist").
Artist hereby:grants a royalty:free license in perpetuity, to the: City, its employees
and its.agents, to make two-dimensional reproductions, photographs and other two
dimensional, less than _full scale, non-exact. reproductions of the Artwork. for both
commercial and non-commercial purposes.
The Artist warrants that the w6rk1s. 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 Artwork. The'covenante, and warranties of the Artist shall be binding
on the Artist's heirs and assigns.
Due to the. nature of the Artwork and the public interest of the City, Artist and
his/her agents,;.heirs,.successors a.hd;assigns hereby-waive any and all rights they:may
have' 'against the City, and its employees, and its agents, under the ;California Art
Preservation Act, as set forth in California Civil Code Section 987,and any similar laws; ..
such as the Federal.Visual Rights:Aot, if applicable:,-The Artist, his/her agents, heirs;:
successors and assigns.also.agree to attempt to defeat this waiver by cooperating with
any oth or:,person or organization which seeks to bring an action under California Civil
Code Section 989 or any similar law, if applicable.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first above written:
[SIGNATURES ON NEXT PAGE]
Page 10 of 15
55575.18 110M 95664a
"ARTIST" II I
Date: ' l a' kr &nuL..
Jack Rivers, as an individual.
Jack Rivers, o-owner of Canyon.Copy and Print
Sandra Rivers; co-ovine of Canyon Copy and
Print
„CITY"
City of Palm Springs
Dater 027 By: .
David H. Ready, Esq.,
City Manager
APPROVED AS TO FORM: ATTEST
J re al n e `
By: ,yi�
il ._
� Y�� 9 � thony Mejia
City Attorney City Clerk
i;
APPROVED BY CITY MMIAGER
b ,
Page 11 of 15 flg '
55575.18110\32895664a fI
I
"ARTIST"
r
Date: 5� �o I �O r- `
Jack Riv rs, a 7-1-tinlividual
Jack Ri rs, •-ou ner of Canyon Copy and Print
Sandra Rivers, co-owner of Canyon Copy and
Print
"CITY"
City of Palm Springs
Date: By: W 1
David H. Ready, Esq., Ph.D.
City Manager
APPROVED AS TO FORM: ATTEST
By: J � BY:
Jeffrey Ballinger Anthony Mejia
City Attorney City Clerk
55575.1811M32895664.1 Page 11 of 15
Page 12 of 15
55575.18110\32895664.3
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA }
COUNTY OF RIVERSIDE }
On v��1k 2020, before me, �12) W&J664 Notary
Public, pers ally appeared JACK RIVERS, who proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his authorized capacity, and that by his signature on the instrument
the person, or the entity upon behalf of which the person acted,executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
......r.....r...........r.r.r.r...
FO- cBRITiNE JO WATSON10
Signature of Notary allotary Public-CaliforrilaRiverside county (Seal)
My Commission Explres
.uumuuuuu October 6,2022 .
55575.18110\32895664.1 Page 13 of 15
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached,and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA }
COUNTY OF RIVERSIDE }
On 2020, before me, Notary
Public, personally appeared DAVID H. READY, who proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his authorized capacity, and that by his signature on the instrument
the person, or the entity upon behalf of which the person acted,executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary (Seal)
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55575.1 si 10u2895e64.3
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy,or validity of that document.
STATE OF CALIFORNIA }
COUNTY OF RIVERSIDE } I `�
On 011 19 , 2020, before me, 3 r 1 -E- yle- W�c`C�CT Notary
Public, personally appeared NONA WATSON, who proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument and acknowledged to
me that she executed the same in her authorized capacity, and that by her signature on the
instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary (Seal)
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Od/0-l"k,
�IftI�E JOW'A' ON
CORIRL#2261510NotaryPUbllc-Callfornla`�Rlvorslde County
MY October 6,20221res�
.uuuuumunu.......................
9
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