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HomeMy WebLinkAboutA9376 - EASTERN LION LLCFIRST AMENDMENT TO AGREEMENT A9376 FOR PURCHASE AND SALE OF PUBLIC ARTWORK WOW Sculpture THIS FIRST AMENDMENT TO AGREEMENT A9376 FOR PURCHASE AND SALE OF PUBLIC ARTOWRK (“Amendment") is made by and between Michael Birnberg aka MIDABI (“Artist”) and CITY OF PALM SPRINGS, a California charter city and a municipal corporation ("City"), effective January 9, 2023, and amends that certain Agreement for Purchase and Sale of Public Artwork dated December 21, 2023, by and between Artist and City ("Agreement'). All terms defined in the Agreement shall have the same meaning when used herein. RECITALS A. Artist and City now mutually desire to amend the Agreement to allow for repair and relocation costs of $1,500 to be added as set forth below. NOW THEREFORE, in consideration of the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. Artist and City mutually agree to amend the Agreement as follows: AGREEMENT 1. Section 2 of the Agreement shall be replaced in its entirety and amended to read as follows: 2. Payment. As consideration for the Artwork purchase, repair, relocation, and patching of current location, City shall pay Artist a total of Six Thousand Five Hundred and Fifty Dollars ($6,550) from Program funds. 2. Continuing Effect of Agreement. Except as amended by this Amendment No. 1, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 1. From and after the date of this Amendment No. 1, whenever the term “Agreement” or “Contract” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 1. 3. Adequate Consideration. The Parties hereto irrevo cably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No.1. DocuSign Envelope ID: C7F692CB-167D-43DC-99C2-D0A3C189E8CF 4. Severability. If any portion of this Amendment No. 1 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 5. Counterparts. This Amendment No. 1 may be executed in duplicate originals, each of which is deemed to be an original, but when taken together shall constitute but one and the same instrument. [End – Signatures on Next Page] DocuSign Envelope ID: C7F692CB-167D-43DC-99C2-D0A3C189E8CF SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND Michael Birnberg aka MIDABI IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. CONTRACTOR: By: _______________________________________ By: _________________________________________ Signature Signature (2nd signature required for Corporations) Date: Date: CITY OF PALM SPRINGS: APPROVED BY CITY COUNCIL: Date: _______ Item No. APPROVED AS TO FORM: ATTEST: By: ___________________________ By: _______________________________ City Attorney City Clerk APPROVED: By: _______________________________ Date: City Manager – over $50,000 Deputy/Assistant City Manager – up to $50,000 Director – up to $25,000 Manager – up to $5,000 DocuSign Envelope ID: C7F692CB-167D-43DC-99C2-D0A3C189E8CF 1/12/2023 1/12/2023 AGREEMENT FOR PURCHASE AND SALE OF PUBLIC ARTWORK THIS AG REEMENT FOR PURCHASE AND SALE OF PUBLIC ARTWORK ("Agreement") is entered into and effective this ____ day of ___ 2022, by and between the CITY OF PALM SPRINGS, a California charter city and municipal corporation ("City"), and Michael Birnberg aka Midabi ("Artisr). RECITALS A.Pursuant to Municipal Ordinance No. 1479, City established the Public Arts Commission ("Commission") and an Art in Public Places Program ("Program"). B.In 2021, Artist's WOW sculpture ("Artwork") was approved as part of the City's temporary art program and is located at the southeast comer of Indian Canyon Drive and Arenas Road. A photograph of the Artwork is attached hereto as Exhibit 11A." C.On November 10, 2022, the City Council approved purchase of the Artwork, which will be moved to a new location at the northwest comer of Palm Canyon Drive and Via Lola, as shown in Exhibit 11B" attached hereto ("Site"). NOW, THEREFORE, City and Artist, for the consideration and under the conditions hereinafter set forth, and pursuant to the authority, terms, and conditions set forth in Municipal Ordinance No. 1479, agree as follows: AGREEMENT 1.Ownership of Documents, Models. All studies, drawings, designs, and models prepared and submitted by Artist to City relative to this Agreement shall become the property of City. City agrees not to reuse such studies, drawings, and models for the purpose of constructing a full-sized duplicate of the Artwork. 2.Payment. As consideration for the Artwork, City shall pay Artist a total of Five Thousand Dollars ($5,000) from Program funds. 3.Artist's Rights: City's Ownership Rights. 3.1 Alterations. The City, pursuant to its governmental and proprietary responsibilities, intends to display the Artwork at the Site as originally created by Artist and to maintain the Artwork in good condition. The City will preserve complete flexibility to operate and manage the Artwork in the public's interest. Therefore, City retains the abs olute right to alter the Artwork in City's sole judgment. For example, City may alter the Artwork to eliminate hazard, to comply with the ADA, to otherwise aid City in the management of its property and affairs, or through neglect or accident. If City finds the Site to be inappropriate, City has the right to cause the Artwork to be installed at an alternate location that City chooses in its sole reasonable discretion. Page 1 of 11 55575.00001\40857471.1 A9376 DocuSign Envelope ID: CDA24D21-FB58-4A8B-ABB6-85200ADDE94D December 21st 3.2 Waiver. With respect to the Artwork produced under this Agreement, Artist waives any and all rights and claims, arising at any time and under any circumstances, against City, its officers, agents, employees, successors and assigns, arising under the federal Visual Artist Rights Act (17 U.S.C. §§106A and 113(d)), the Califomia 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 as those conveyed under 17 U.S.C. §106A, Cal. Civil Code §§987 et seq., or any other type of moral right protecting the integrity of works of art. If the Artwork is incorporated into the Site such that the Artwork cannot be removed from the Site without alteration of the Artwork, Artist waives any and all such claims against the City, and its agents, officers and employees, for alteration of the Artwork. 3.3 Disclaimer. If City alters the Artwork without Artist's consent in a manner that is prejudicial to Artist's reputation, Artist retains the right to disclaim authorship of the Artwork in accordance with California Civil Code §987(d) and 17 U.S.C. §106A(a)(2). 4.Artist's Warranties. 4.1 Defects in Materials or Workmanship. Artist warrants that the Artwork will be free of defects in workmanship or materials, and that Artist will, at Artist's own expense, remedy any defects due to faulty workmanship or materials appearing during the twenty­ four (24) month period immediately following execution of both parties of this Agreement. This warranty includes any workmanship or materials which cause the Artwork to deteriorate over said twenty-four (24) month period in a manner inconsistent with the design, the approved plans and specifications or as would otherwise be expected from products made of similar materials, or from any quality within the materials which comprise the Artwork which, either alone or in combination, result in the tendency of the Artwork, or their installation, to deteriorate. 4.2 Title. Artist warrants that the Artwork is the result of the artistic efforts of Artist and that the Artwork will be delivered and transferred to City free and clear of any liens, claims, or other encumbrances of any type, exclusive of intellectual property rights of Artist. 5.Maintenance of the Artwork. Artist shall provide City with written instructions for appropriate maintenance and preservation of the Artwork. 6.Default: Remedies. 6.1 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the defaulting party in writing of the breach or dispute and the facts giving rise thereto. The injured party shall continue performing its obligations hereunder so long as the defaulting party commences to cure such default within fifteen (15)calendar days of receipt of such notice and completes the cure of such default within thirty (30) calendar days after receipt of the notice, or such longer period as may be permitted by the injured party; provided that if the default is or presents an immediate danger to the health, safety and general welfare, City may take immediate action. Page 2 of11 55575.00001\40857471.1 DocuSign Envelope ID: CDA24D21-FB58-4A8B-ABB6-85200ADDE94D Compliance with the provisions of this section shall be a condition precedent to termination of this Agreement for cause and to seek arbitration, and such compliance shall not be a waiver of any party's right to seek arbitration in the event that the dispute is not cured. 6.2 Waiver. No delay or omission in the exercise of any right or remedy by non- defaulting party on any default shall impair such right or remedy or be construed as a waiver unless such waiver, delay or omission is memorialized in writing. A party's consent to or approval of any act by the other party requiring the first 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 unless such consent or approval is memorialized in writing. Any waiver by either 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. 6.3 Rights and Remedies. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of th e parties hereunder are cumulative and 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 other default by the other party. 6.4 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or is made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys' fees. Attorneys' fees shall include attorneys' fees on appeal, and in addition, a party entitled to attorneys' fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs which are incurred in such arbitration and on appeal. 7.Hold Harmless. Artist shall hold the City, its elected officials, officers, employees and agents, harmless from and against any and all liabilities, actions, claims, demands, losses, costs, damages, penalties, and expenses (collectively "Claims"), including but not limited to Claims arising from injuries to or death of persons and for damage to property, that arise out of or relate to Artist's performance under this Agreement. This hold harmless clause excludes Claims arising from the sole negligence or willful misconduct of the City, its elected officials, officers, employees, agents, and volunteers. 8.Intellectual Property and Publicity Rights 8.1 Bill of Sale. Upon the acceptance of the Work and payment therefore by the City, the Artist shall convey and assign title to the Work and all rights thereto to the City by executing and delivering the Bill of Sale in the form attached hereto as Exhibit "C0 ("Bill of Sale"). The Artist bears the risk of damage to or loss of the Work until the title passes to the City. Artist shall register a copyright with the United States Copyright Office, and the Artist shall provide the City with a copy of the application for regis tration. The City's share in the copyright of the Work shall be transferred to the City by the Bill of Sale. Page3of11 55575.00001\40857471.1 DocuSign Envelope ID: CDA24D21-FB58-4A8B-ABB6-85200ADDE94D 8.2 Copyright. Except as noted in this Agreement, the Artist shall retain all copyrights in all original works of authorship produced under this Agreement. Artist's copyright shall not extend to predominantly utilitarian aspects of the work, such as landscaping elements, furnishings, or other similar objects. Notwithstanding any other provision to the contrary, Artist shall not grant, sell, give, or in any way convey to any person or entity of any kind a copy of the Artwork or any component thereof or any likeness or reproduction of the Artwork or any component thereof without the express written approval of the City. Nothing herein shall prohibit the Artist from providing two dimensional images of the Artwork or portions thereof to be included in any portfolio or other resume of the Artist demonstrating or depicting representative samples of the Artist's work. 8.3 City's Intellectual Property License. Artist grants to City, and to City's agents, authorized contractors and assigns, an unlimited, exclusive, and irrevocable license to all rights worldwide with respect to the Artwork and any and all intellectual property or other property of any nature produced, created, or suggested by the Artist during the term of this Agreement or resulting from the Artist's services shall be deemed a work made for hire and shall be the sole and exclusive property of the City. Such license rights include, but are not limited to the following with respect to the Artwork and any original works of authorship created under this Agreement, whether in whole or in part, in all media (including electronic and digital) throughout the universe: (a)Implementation, Use, and Display. City may use and display any and all graphic representations or models of the Artwork, as well as the Artwork. To the extent the Artwork involves design elements that are incorporated by City into the design of the Site, City may implement such elements at the Site. (b)Reproduction and Distribution. City may make and distribute, and authorize the making, display, and distribution of, photographs and any other two or three­ dimensional reproductions. City may use such reproductions for any purpose (commercial and noncommercial), including advertising, educational, and promotional materials, brochures, books, flyers, postcards, print, broadcast, film, electronic and multimedia publicity, gifts for City benefactors, documentation of City's Civic Art Collection, and catalogues or similar publications. City shall ensure that such reproductions are made in a professional and tasteful manner, in the sole and reasonable judgment of the City. The proceeds from the sale of any such reproductions shall be used to maintain and support the Artwork or for any other governmental or charitable purpose as determined at the sole di scretion of City. This provision is intended to constitute a transfer of the right to reproduction, and this Agreement is intended to be and shall be deemed to constitute the document in writing required by Civil Code Section 982(c). (c)Public Records Requests. Any documents provided by Artist to City are public records and City may authorize third parties to review and reproduce such documents pursuant to public records laws. Page 4 of 11 SSS75.0000l\408S7471.1 DocuSign Envelope ID: CDA24D21-FB58-4A8B-ABB6-85200ADDE94D 8.4 Third Party Infringement. The City is not responsible for any third party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. 8.5 Publicity. City shall have the right to use Artist's name, likeness, and biographical information, in connection with the display or reproduction and distribution of the Artwork including all advertising and promotional materials regarding the City. Artist shall be reasonably available to attend any inauguration or presentation ceremonies relating to the public dedication of the Artwork. 8.6 Trademark. In the event that City's use of the Artwork creates trademark, service mark, or trade dress rights in connection with the Artwork, City shall have an exclusive and irrevocable right in such trademark, service mark, or trade dress. Artist may not use the Artwork in any manner that would cause a likelihood of confusion as to source or sponsorship by City, its agents or assigns, or to dilute the distinctive quality of such mark. 8.7 Unique. Artist warrants that the design of the Artwork is an edition of one, and that neither Artist not Artists' agents will execute or authorize another to e xecute another work of the same or substantially similar image, design, dimensions, and materials as the Artwork. Artist may create works that utilize or incorporate various individual art elements that comprise the Artwork, so long as the work utilizing or incorporating such individual elements (1) does not consist predominantly of such elements (2) is not the same or substantially similar in image, design, dimensions and materials as the Artwork, and (3) is not displayed in an environment that is the same or substantially similar to the environment in which the Artwork is to be displayed at the Site. This warranty shall continue in effect for a period consisting of the life of Artist plus 70 years or for the duration of the Artwork's copyright protected status, whichever is longer, and shall be binding on Artist and Artist's heirs and assigns. In the case where Artist is comprised of two or more individual persons or a group of people, the measuring life shall be the life of the last surviving individual person comprising Artist. Recognizing that City has no adequate remedy at law for Artist's violation of this warranty, Artist agrees that, in the event Artist breaches this warranty, City shall be entitled to enjoin Artist's breach. 8.8 Resale Royalty. If City sells the Artwork as a fixture to real property, and if the resale value of the Artwork is not itemized separately from the value of the real property, the Parties agree that the resale price of the Artwork shall be presumed to be less than the purchase price paid by City under this Agreement. Thus, City has no obligation to pay resale royalties pursuant to California Civil Code §986 or any other law requiring the payment of resale royalties. If City sells the Artwork as an individual piece, se parate from or itemized as part of a real property transaction, City shall pay to Artist a resale royalty to the extent required by law, based upon the sale price of the Artwork. 9.Documentation. To the extent possible, Artist shall provide information on the Artwork requested by the City for its registration files. Page 5 of 11 S55 7S.0000 I \4085747 I.I DocuSign Envelope ID: CDA24D21-FB58-4A8B-ABB6-85200ADDE94D 10.Repair and Restoration. It is the current policy of the City to consult with Artist regarding repairs and restoration which are undertaken during Artist's lifetime when that is practical. To facilitate consultation, Artist will, to the extent feasible, notify the City of any change in his professional address. 11.Reputation. 11. 1 City's Commitment. The City agrees that it will not use the Artwork or Artist's name in a way which reflects discredit on the Artwork or on the name of Artist or on the reputation of Artist. 11.2 Artist's Commitment. Artist agrees that it will not make reference to the Artwork or reproduce the Artwork or any portion thereof in a way which reflects discredit on City or the Artwork. 11.3 No Assignment or Transfer. The personal skill, judgment, and creativity of Artist are essential elements of this Agreement. Therefore, Artist shall not voluntarily or invol untarily assign, convey, subcontract, hypothecate, encumber or otherwise transfer any portion of this Agreement or any of the services to be performed hereunder without the express written consent of City, which consent may be withheld in City's sole and absolute discretion. In the event of such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. 12.Integration: Amendments. This Agreement contains all of the agreements of the parties and cannot be modified, terminated or rescinded, in whole or in part, unl ess written and signed by authorized representatives of the parties hereto. No prior oral or written understanding shall be of any force with respect to those matters covered in this Agreement. 13.Governing Law. This Agreement and all matters pertaining thereto shall be construed according to the laws of the State of California. Venue shall be in Riverside County. 14.Further Responsibilities of the Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the services of the other. 15.Notices. Any notice which either party may desire to give to the other party under this Agreement must be in writing and may be given by personal delivery or by mailing the same by registered or certified mail, return receipt requested, to the party to whom the notice is directed at the address of such party hereinafter set forth, or such other address and to such other persons as the parties may hereafter designate, or by facsimile when followed by a facsimile confirming receipt: Page6of11 5557S.00001\40857471.I DocuSign Envelope ID: CDA24D21-FB58-4A8B-ABB6-85200ADDE94D To Artist: To City: Copy to: Michael Birnberg aka Midabi Eastern Lion LLC 18 Stuyvesant Oval, Suite 6A NYC 10009 917.727.2713 City Manager City of Palm Springs P.O. Box 2743 Palm Springs, CA 92263 City Attorney City of Palm Springs P.O. Box 2743 Palm Springs, CA 92263 A change in the designation of the person or address to which submittals, requests, notices or reports shall be delivered is effective when the other party has received notice of the change by certified mail or by facsimile when followed by a return facsimile confirming receipt. 16.Execution in Counterparts. This Agreement may be executed in several counterparts, and all so executed shall constitute one agreement binding on both parties hereto, notwithstanding that all parties are not signatories to the original on the same counterpart. Page7of11 S557S.OOOOl\408S7471.l DocuSign Envelope ID: CDA24D21-FB58-4A8B-ABB6-85200ADDE94D APPROVED AS TO FORM: SS575.0000l\40857471.1 "ARTIST" Page8of11 DocuSign Envelope ID: CDA24D21-FB58-4A8B-ABB6-85200ADDE94D EXHIBIT"A" PHOTOGRAPH OF WOW ARTWORK Page9of11 DocuSign Envelope ID: CDA24D21-FB58-4A8B-ABB6-85200ADDE94D SSS?S.00001 \40857471.l EXHIBIT"B• SITE Page 10 of 11 DocuSign Envelope ID: CDA24D21-FB58-4A8B-ABB6-85200ADDE94D EXHIBIT"C• BILL OF SALE BILL OF SALE AND ASSIGNMENT THIS BILL OF SALE AND ASSIGNMENT is made as of __ 2022, from Michael Birnberg aka Midabi (Seller) to the CITY OF PALM SPRINGS, a municipal corporation ("Buyer"). That for good and valuable consideration to be paid pursuant to the provisions of that certain Agreement for Purchase and Sale of Public Art Work dated _______ , 2022 between Buyer and Seller (the "Purchase Agreemenr) Seller does hereby sell, assign, transfer and deliver unto Buyer, and its successors and assigns, that certain work created by Seller entitled "WOW' (the "Properiy-), including all right, title and interest therein, and shared copyrights thereto. Seller does hereby represent and warrant to Buyer that Seller is the lawful owner of such personal property, and that Seller had good right to sell the same as aforesaid and will warrant and defend the title thereto unto buyer, its successors, subsidiaries, parent corporations, affiliates and loan participant. IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of the date first above written. ATTEST: By : ___________ _ City Clerk APPROVED AS TO FORM: Michael Birnberg aka Midabi, Artist Signature CITY OF PALM SPRINGS a municipal corporation By: _________ _ City Manager CITY ATTORNEY: ___________ _ Page 11 of 11 SSS7S.00001\40857471.1 APPROVED BY CITY COUNCIL: Date_____Item No.____ DocuSign Envelope ID: CDA24D21-FB58-4A8B-ABB6-85200ADDE94D 12/21 11/10/2022 12/21 1:O