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HomeMy WebLinkAbout23P197 - EASTERN LION LLCCONTRACT ABSTRACT Contract/Amendment Name of Contract: Company Name: Company Contact: Email: Summary of Services: Contract Price: Contract Term: Public Integrity/ Business Disclosure Forms: Contract Administration Lead Department: Contract Administrator/ Ext: Contract Approvals Council/City Manager Approval Date: Agreement Number: Amendment Number: Contract Compliance Exhibits: Insurance: Routed By: Bonds: Business License: Sole Source Co-Op CoOp Agmt #: Sole Source Documents: CoOp Name: CoOp Pricing: By: Submitted on: Contract Abstract Form Rev 8.16.23 Authorized Signers: Name, Email (Corporations require 2 signatures) Purchase & Sale of Public Artwork-The Pillars of PS-COMMUNITY Michael Birnberg dba Eastern Lion LLC - MIDABI Michael Birnberg contact@midabi.art Purchase & Sale of Public Artwork-The Pillars of PS-Community $50,000 October 1, 2023 through April 15, 2024 Yes Michael Birnberg, contact@midabi.art Community & Economic Development Jay Virata 9/26/2023 23P197 N/A Yes Yes Yes Procurement N/A No Solicitation-Call For Artists-The Pillars of Palm Springs N/A N/A N/A 8/24/2023 Brian Sotak-Rossman DocuSign Envelope ID: 2D8CE6D0-B16A-4A1F-9C67-76B347A0A1D0 CITY OF PALM SPRINGS 3200 E TAHQUITZ CANYON WAY, PALM SPRINGS, CA 92262 (760) 322-8328 PLEASE NOTE THAT IT IS YOUR RESPONSIBILITY TO RENEW AND UPDATE THIS LICENSE ANNUALLY. BUSINESS LICENSE CERTIFICATE Business Name:Business Type(s):Eastern Lion LLC 7380 SERVICES-MISCELLANEOUS BUSINESS SERVICES Business Location:18 Stuyvesant OVAL Suite 6A New York, NY 10009 Mailing Address:18 Stuyvesant OVAL Suite 6A New York, NY 10009 Owner:Michael Birnberg License Number:OC-001597-2023 Out of CityLicense Type: Issued Date:7/31/2023 Classification:Out of City Expiration Date:7/31/2024 Fees Paid:$174.00 ISSUANCE OF THIS LICENSE DOES NOT ENTITLE THE LICENSEE TO OPERATE OR MAINTAIN A BUSINESS IN VIOLATION OF ANY OTHER LAW OR ORDINANCE. THIS IS NOT AN ENDORSEMENT OF THE ACTIVITY NOR OF THE APPLICANT'S QUALIFICATIONS. TO BE POSTED IN A CONSPICUOUS PLACE DocuSign Envelope ID: 2D8CE6D0-B16A-4A1F-9C67-76B347A0A1D0 Revised 4.13.23 Page 1 of 15 PURCHASE AND SALE OF PUBLIC ARTWORK AGREEMENT 23P197 THE PILLARS OF PALM SPRINGS – COMMUNITY THIS AGREEMENT FOR PURCHASE AND SALE OF PUBLIC ARTWORK (“Agreement”) is made and entered into on October 1, 2023, by and between the CITY OF PALM SPRINGS, a California charter city and municipal corporation (“City”), and Michael Birnberg DBA Eastern Lion LLC (MIDABI) (“Artist”). RECITALS A.Pursuant to Municipal Ordinance No. 1479, City established the Public Arts Commission (“Commission”) and an Art in Public Places Program (“Program”). 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, and as outlined on Exhibit A Scope of Work and Pricing and Exhibit B Insurance Requirements 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 $50,000.00 from Public Art 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 absolute 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. 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 California Art Preservation Act (Cal. Civil Code §§987 et seq.), and any other local, state, federal or international laws that convey rights of DocuSign Envelope ID: 2D8CE6D0-B16A-4A1F-9C67-76B347A0A1D0 Revised 4.13.23 Page 2 of 15 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. 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 DocuSign Envelope ID: 2D8CE6D0-B16A-4A1F-9C67-76B347A0A1D0 Revised 4.13.23 Page 3 of 15 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 the 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 “C” (“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 registration. The City’s share in the copyright of the Work shall be transferred to the City by the Bill of Sale. 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 DocuSign Envelope ID: 2D8CE6D0-B16A-4A1F-9C67-76B347A0A1D0 Revised 4.13.23 Page 4 of 15 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 discretion 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. 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. DocuSign Envelope ID: 2D8CE6D0-B16A-4A1F-9C67-76B347A0A1D0 Revised 4.13.23 Page 5 of 15 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 execute 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, separate 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. 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. DocuSign Envelope ID: 2D8CE6D0-B16A-4A1F-9C67-76B347A0A1D0 Revised 4.13.23 Page 6 of 15 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 involuntarily 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, unless 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: To Artist: To City: Copy to: MIDABI Attention: Michael Birnberg 74711 Dillion Rd., Unit 277 Desert Hot Springs, CA 92241 City of Palm Springs Attention: City Manager / City Clerk 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 City of Palm Springs Attention: City Attorney P.O. Box 2743 Palm Springs, CA 92263 DocuSign Envelope ID: 2D8CE6D0-B16A-4A1F-9C67-76B347A0A1D0 Revised 4.13.23 Page 7 of 15 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. DocuSign Envelope ID: 2D8CE6D0-B16A-4A1F-9C67-76B347A0A1D0 Revised 4.13.23 Page 8 of 15 SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND MICHAEL BIRNBERG DBA EASTERN LION LLC (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: 09/26/2023 Item No. 1-H 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: 2D8CE6D0-B16A-4A1F-9C67-76B347A0A1D0 10/16/2023 10/16/2023 Revised 4.13.23 Page 9 of 15 EXHIBIT A SCOPE OF WORK AND PRICING DocuSign Envelope ID: 2D8CE6D0-B16A-4A1F-9C67-76B347A0A1D0 Revised 4.13.23 Page 10 of 15 1. General Requirements Artist will submit a proposal for a pillar sculpture(s) that represent one of six equities that represents the core ethos and identifier for Palm Springs community. These are: (1) Creativity, (2) Equality, (3) Serenity, (4) Diversity, (5) Civility, and (6) Community. 2. Scope of Work A. Create new, original, permanent sculptures to be located on the East Tahquitz Canyon median art pads between Sunrise Way and El Cielo Road. B. The sculpture is to be between 6’-12’ tall and must be anchored on the 5’ x 5’ art pads currently located in the median. (Note: important as that will be the base to support the piece and crucial for installation) C. The sculpture shall be a one-of-a-kind piece. D. The sculpture shall be appropriate in scale, material, form and content for the immediate, general, social and physical environments with which they relate. E. Consideration shall be given to structural and surface integrity, permanence, and protection against theft, vandalism, weathering, and maintenance and repair costs. F. No parts of the sculpture may extend beyond the median. G. Traffic sight lines must be protected and lighting and / or glare cannot shine into the eyes of individuals operating vehicles on the City streets. H. The sculpture will represent one equity that represents the core ethos and identifier for Palm Springs community. These are (1) Creativity, (2) Equality, (3) Serenity, (4) Diversity, (5) Civility, and (6) Community. I. Artists may submit multiple proposals for each of the represented equity values (pillars). J. A total of six (6) pieces will be selected for production and installation. K. The word of your chosen equity must be visible on the sculpture to passersby. The word must be a fully integrated design element, and not simply a caption on the pedestal. Only one equity is to be represented in the piece. L. The sculpture installation is to be completed before April 15, 2024 – World Art Day. 3. Contract Pricing Costs outlined in the contract include all items needed to perform the work including, labor, materials, overhead, profit, travel, and all administrative costs. 4. Invoicing A. The Contractor shall submit the invoice to the Contract Administrator. Invoice must contain following: i. Purchase order number B. Approval for payment shall be authorized by the Contract Administrator. DocuSign Envelope ID: 2D8CE6D0-B16A-4A1F-9C67-76B347A0A1D0 Revised 4.13.23 Page 11 of 15 DocuSign Envelope ID: 2D8CE6D0-B16A-4A1F-9C67-76B347A0A1D0 Revised 4.13.23 Page 12 of 15 EXHIBIT B INSURANCE 1. Procurement and Maintenance of Insurance. Contractor shall procure and maintain public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Contractor’s performance under this Agreement. Contractor shall procure and maintain all insurance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurrently with its execution of this Agreement. Contractor shall also carry workers’ compensation insurance in accordance with California workers’ compensation laws. Such insurance shall be kept in full force and effect during the term of this Agreement, including any extensions. Such insurance shall not be cancelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to commencement of services. The procuring of such insurance and the delivery of policies, certificates, and endorsements evidencing the same shall not be construed as a limitation of Contractor’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers. 2. Minimum Scope of Insurance. The minimum amount of insurance required under this Agreement shall be as follows: 1. Comprehensive general liability and personal injury with limits of at least one million dollars ($1,000,000.00) combined single limit coverage per occurrence and two million dollars ($2,000,000) general aggregate; 2. Automobile liability insurance with limits of at least one million dollars ($1,000,000.00) per occurrence; 3. Professional liability (errors and omissions) insurance with limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) annual aggregate is: _________ required ___x_____ is not required; 4. Workers’ Compensation insurance in the statutory amount as required by the State of California and Employer’s Liability Insurance with limits of at least one million dollars $1 million per occurrence. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form. 3. Primary Insurance. For any claims related to this Agreement, Contractor’s insurance coverage shall be primary with respect to the City and its respective elected officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Contractor’s insurance and shall not contribute with it. For Workers’ Compensation and Employer’s Liability Insurance only, the insurer shall waive all rights of subrogation and contribution it may have against City, its elected officials, officers, employees, agents, and volunteers. DocuSign Envelope ID: 2D8CE6D0-B16A-4A1F-9C67-76B347A0A1D0 Revised 4.13.23 Page 13 of 15 4. Errors and Omissions Coverage. If Errors & Omissions Insurance is required, and if Contractor provides claims made professional liability insurance, Contractor shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement to cover claims made within three years of the completion of Contractor’s services under this Agreement, or (2) to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least three years after completion of Contractor’s services under this Agreement. Contractor shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy. 5. Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City. 6. Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, effecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Contractor’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies. Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: A. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement). B. "This insurance is primary and non-contributory over any insurance or self- insurance the City may have..." ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement). C. "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, “endeavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. DocuSign Envelope ID: 2D8CE6D0-B16A-4A1F-9C67-76B347A0A1D0 Revised 4.13.23 Page 14 of 15 All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not waive the Contractor’s obligation to provide them. 1. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City prior to commencing any work or services under this Agreement. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its elected officials, officers, employees, agents, and volunteers; or (2) Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Certificates of Insurance must include evidence of the amount of any deductible or self-insured retention under the policy. Contractor guarantees payment of all deductibles and self-insured retentions. 8. Severability of Interests (Separation of Insureds). This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer’s liability. DocuSign Envelope ID: 2D8CE6D0-B16A-4A1F-9C67-76B347A0A1D0 Revised 4.13.23 Page 15 of 15 EXHIBIT C BILL OF SALE BILL OF SALE AND ASSIGNMENT THIS BILL OF SALE AND ASSIGNMENT is made as of _________________, from MICHAEL BIRNBERG DBA EASTERN LION LLC (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 _______________________ between Buyer and Seller (the “Purchase Agreement”) Seller does hereby sell, assign, transfer and deliver unto Buyer, and its successors and assigns, that certain work created by Seller entitled THE PILLARS OF PALM SPRINGS – COMMUNITY (the “Property”), 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. Artist By:________________________ Signature CITY OF PALM SPRINGS a municipal corporation By:________________________ City Manager ATTEST: By:_____________________________ City Clerk APPROVED AS TO FORM: CITY ATTORNEY:________________________________ DocuSign Envelope ID: 2D8CE6D0-B16A-4A1F-9C67-76B347A0A1D0 CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) 8/7/2023 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT : If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on This certificate does not confer rights to the certificate holder in lieu of such an endorsement(s). PRODUCER JP WEST INC 90 BROAD ST 3RD FL NEW YORK, NY 10004-3342 CONTACT NAME: PHONE (A/C. No. Ext.): (212) 461-2262 FAX (A/C. No. Ext.): (212) 461-2263 E-MAIL ADDRESS: INSURED EASTERN LION LLC 18 STUYVESANT OVAL APT 6A NEW YORK, NY 10009-2246 INSURER(S) AFFORDING COVERAGE NAIC # INSURER A : THE TRAVELERS INDEMNITY COMPANY OF CONNECTICUT INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSD SUBR WVD POLICY NUMBER POLICY EFF (MM/DD/YYYY) POLICY EXP (MM/DD/YYYY) LIMITS A X COMMERCIAL GENERAL LIABILITY 68G-1X008486-23-42 10/01/2023 10/01/2024 EACH OCCURRENCE $1,000,000 CLAIMS-MADE X OCCUR DAMAGE TO RENTED PREMISES (Ea Occurrence) $300,000 X HIRED AUTO MED EXP (Any one person) $5,000 X NON OWNED AUTO PERSONAL & ADV INJURY $1,000,000 GEN’L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $2,000,000 X POLICY PROJECT LOC PRODUCTS – COMP/OP AGG $2,000,000 OTHER AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident) $ ANY AUTO BODILY INJURY (Per person) $ OWNED AUTOS ONLY SCHEDULED AUTOS BODILY INJURY (Per accident) $ HIRED AUTOS ONLY NON-OWNED AUTOS ONLY PROPERTY DAMAGE (Per accident) $ $ UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS-MADE AGGREGATE $ DED RETENTION $ WORKERS COMPENSATION AND EMPLOYERS’ LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS BELOW PER STATUTE OTH -ER Y/N N/A E.L. EACH ACCIDENT $ E.L. DISEASE– EA EMPLOYEE $ E.L. DISEASE – POLICY LIMIT $ $ $ $ DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) CERTIFICATE HOLDER CANCELLATION City of Palm Springs P.O. Box 2743 Palm Springs, CA 92263 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS AUTHORIZED REPRESENTATIVE © 1993-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/3) The Acord name and logo are registered marks of ACORD The City of Palm Springs, its officials, employees, and agents are named as an additional insured as required by contract with respects to terms and conditions of the policy. DocuSign Envelope ID: 2D8CE6D0-B16A-4A1F-9C67-76B347A0A1D0