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Home My WebLink About11/4/2009 - STAFF REPORTS - 5.B. A. P A L M SA? i� 4 ✓ CitZ Council Staff Report DATE: November 3, 2009 NEW BUSINESS SUBJECT: APPROVE THE AGREEMENT FOR TRANSFER OF THE OWNERSHIP OF ARTWORK TO THE CITY OF PALM SPRINGS; AUTHORIZE THE REIMBURSEMENT OF PUBLIC ART-IN-LIEU FEES TO THE AGUA CALIENTE BAND OF CAHUILLA INDIANS FOR ARTWORK BY DOUG HYDE; APPROVE AN AGREEMENT FOR PLACEMENT OF ARTWORK ON PRIVATE PROPERTY AND ACCEPT A GRANT OF EASEMENT FOR PUBLIC ART BETWEEN THE CITY OF PALM SPRINGS AND LUNDIN DEVELOPMENT COMPANY. FROM: David H. Ready, City Manager BY: Community and Economic Development SUMMARY The Section 14 Master Plan was approved by the Tribe and adopted by City Council in March, 2004. A requirement of the Section 14 Master Plan calls for Type I Gateway Elements to be installed at each of the four corners of Section 14. The Type 1 Gateways will be uniform and marked with the Tribal medallion and placed to signify entry into Section 14. In order to ensure uniformity and the appropriate design for the Gateway Elements, the Tribe advanced the cost of developing the design features. The Tribe is requesting that the City reimburse the Tribe with the public art funds generated by the project ($25,049) to offset some of the cast of design and installation of the Type I Gateway features through the Public Art Fund. The Tribe is proposing the placement of the first of four Type I Gateway Elements to be located at the Ralph's Shopping Center on the northwest corner of Sunrise Way and Ramon Road, The Tribe has paid for the artwork but does not have the appropriate resources to maintain public art. The Tribe has proposed to donate the Type I Gateway Element to the City and request reimbursement of the Public Art Fee generated from the project less the maintenance costs for a five year period. The Tribe has, therefore, requested reimbursement in the amount of$25,049. RECOMMENDATION: 1. Approve an agreement for transfer of the ownership of artwork to the City of Palm Springs; and i V T nnM Na. �^ —= City Council Staff Report (November 4, 2009) -- Page 2 Agreement for Transfer of Ownership and Reimbursement of Public Art Fees and Agreement for Placement of Artwork on Private Property and Grant of Easement 2. Authorize the reimbursement of the Public Art-In-Lieu Fees for Artwork to the Agua Caliente Band of Cahuilla Indians ("Tribe"), in an amount not to exceed $25,049 from public art fees collected from the Ralph's Shopping Center Project; and 3. Approve an agreement for placement of artwork on private property and accept a Grant of Easement with Lundin Development Company. 4. Authorize the City Manager to execute all necessary documents. STAFF ANALYSIS: The Section 14 Master Plan requires that Gateway Elements be used to distinguish Section 14 and signify entrance into the district. Type 1 and Type 2 Gateways are proposed for Section 14. The Type 1 Gateways are uniform sculptures with the Tribal medallion and signify entry into Section 14 at each of the four corners. The Type 2 Gateways are large-scale sculpture, to be located on Tahquitz Canyon Way at Indian Canyon and Sunrise Way. The Ralph's Shopping Center at Sunrise Way and Ramon Road is located at a Gateway corner of Section 14 and conditioned to comply with the Type 1 Gateway requirements. Lundin Development Company, developer of the Ralph's Shopping Center at Sunrise Way and Ramon Road made an initial public art presentation to the Public Arts Commission in October 2002. The Developer worked on the public art proposal for four years, but was unable to obtain an approval for the public art proposal from the Public Arts Commission and the Indian Planning Commission. On December 21, 2006, to ensure uniformity of the Type 1 Gateway Elements, the Tribe proposed that they advance the cost of developing a design for these features in collaboration with the Public Arts Commission and Indian Planning Commission. This approach would ensure the appropriateness and significance of the Gateway features. At the September 13, 2007 Public Arts Commission meeting, Tribal Planning Staff presented design ideas for the Type 1 Gateway feature to be located at the Ralph's Shopping Center site; the Commission made comments but no formal action was taken. Tribal Council subsequently approved the design presented at the September 13, 2007 Public Arts Commission meeting and the commissioning of artist Doug Hyde to create the Section 14 Gateway Elements. At the April 9, 2009 Public Arts Commission meeting, the Tribe proposed donating the Type I Gateway Element to the City to become part of the City's Public Art Collection. The Tribe also requested reimbursement of the Public Art Fee generated by the Lundin/Ralph's Center project. A motion was made by Commissioner Kabler and seconded by Commissioner Kennedy to recommend approval of the proposal as presented and drafted in the resolution. The motion passed unanimously on a 5/0 vote. Y City Council Staff Report (November 4, 2009) — Page 3 Agreement for Transfer of Ownership and Reimbursement of Public Art Fees and Agreement for Placement of Artwork on Private Property and Grant of Easement The Tribe will be responsible for the installation, landscaping, lighting costs and will pay to maintain the sculpture for a five year period. The cost of maintenance is estimated to be approximately $3,000, The public art fee collected from the Ralph's Shopping Center Project was $28,049, maintenance costs will be deducted from this amount reducing the total reimbursement to $25,049. FISCAL IMPACT: There is no negative fiscal impact to the City as the Tribe is seeking reimbursement for a cost that was paid by Public Art Fees and which is allowed by the Ordinance. No General Fund money will be used for this project. .C11L-4 =Z- Jennifer enning Thomas J. Wkt on, Arts and pecial rojects Coordl ator Assistant City Manager David H. Ready, Esq., City Manager Attachments: Images of Artwork and Site Resolution Agreement for Transfer of Artwork Ownership and Reimbursement of Public Art-In-Lieu Fee for Artwork Agreement for Placement of Artwork and Grant of Easement. 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CITY OF PALM SPRINGS, CALIFORNIA, APPROVING INSTALLATION OF THE SECTION 14 MASTER PLAN TYPE I GATEWAY ELEMENT AT THE RALPH'S SHOPPING CENTER ON THE NORTHWEST CORNER AT SUNRISE WAY AND RAMON ROAD; ACCEPT THE DONATION OF THE TYPE I SCULPTURE AS PART OF THE CITY'S PUBLIC ART COLLECTION; AND RECOMMEND THE REIMBURSEMENT OF PUBLIC ART-IN-LIEU FEES GENERATED FROM THE RALPH'S SHOPPING CENTER PROJECT. WHEREAS, the City Council created according to Chapter 224 of the Palm Springs Municipal Code (Section 2.24.010) the Public Arts Commission; and WHEREAS, at the October 10, 2002 Public Arts Commission meeting an art-in- lieu presentation was made, by Lundin Development, developer of the Ralph's Shopping Center project, for the display of giclee prints depicting well known Modernist architecture in Palm Springs and recognizing the Tribe; and WHEREAS, at the September 11, 2003 meeting the Commission recommended a motion not to approve the giclee prints display project, the motion carried 5/0; and WHEREAS, on October 13, 2005 the Commission was presented with an art-in- lieu proposal by artist Roger Hopkins to create a Type I Gateway Element Sculpture, a motion was made to approve the concept, motion carried 6/0; and WHEREAS, on June 8, 2006 Roger Hopkins, artist for Lundin Development, made a presentation proposing a new Type I sculpture design (maquette) for the Ralph's Shopping Center. A motion was made to accept the new design, motion carried 6/1; and WHEREAS, Lundin Development approves of the artwork being proposed by the Tribe and the reimbursement of art-in-lieu fees paid in conjunction with the initial construction of the project; and WHEREAS, on September 13, 2007 the Tribe presented a new design for the Type 1 Gateway Element Sculpture with the Tribal Logo/seal to signify entry into Section 14 designed by artist Doug Hyde; and WHEREAS, the proposed site for the installation is at the Ralph's Shopping Center at the northwest corner of Ramon Road and Sunrise Way; and NOW, THEREFORE, be it resolved that the Public Arts Commission recommends: Resolution No. Page 2 1) THE INSTALLATION OF THE SECTION 14 MASTER PLAN TYPE I GATEWAY ELEMENT BY DOUG HYDE AT THE RALPH'S SHOPPING CENTER ON THE NORTHWEST CORNER OF RAMON ROAD AND SUNRISE WAY; AND 2) ACCEPT THE DONATION OF THE TYPE I GATEWAY ELEMENT SCULPTURE AS A PART OF THE CITY'S PUBLIC ART COLLECTION; AND 3) RECOMMEND THE REIMBURSEMENT OF PUBLIC ART-IN-LIEU FEES GENERATED FROM THE RALPH'S SHOPPING CENTER PROJECT TO THE AGUA CALIENTE BAND OF CAHUILLA INDIANS. ADOPTED the day of 2009 James Thompson City Clerk ATTEST: Jennifer A. Henning, Public Arts & Special Projects Coordinator Ell RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: AGUA CALIENTE BAND OF CAHUILLA INDIANS Tribal Planning and Development Department 5401 Dinah Shore Drive Palm Springs, CA 92264 Space above this Line Reserved for Use by Recorder AGREEMENT FOR TRANSFER OF ARTWORK OWNERSHIP AND REIMBURSEMENT OF THE PUBLIC ART IN-LIEU FEE FOR THE ARTWORK This AGREEMENT FOR TRANSFER OF ARTWORK OWNERSHIP AND REIMBURSEMENT OF THE PUBLIC ART IN-LIEU FEE FOR THE ARTWORK ("Agreement') is entered into as of 2009 by and between the AGUA CALIENTE BAND OF CAHUILLA INDIANS ("Tribe"), a federally-recognized Indian Tribe governing itself according to a Constitution and By-Laws and exercising sovereign authority over the lands of the Agua Caliente Indian Reservation ("Reservation"), and the CITY OF PALM SPRINGS, a municipal corporation ("City"). RECITALS: A. The City has established a Public Art Fee Program which authorizes the placement of works of art on appropriate private property which encourages public access and viewing of the artwork. B. Under the Public Art Fee Program, artwork may be provided or an "in-lieu" fee may be paid. C. The Tribe has commissioned a work of art that complies with the Section 14 Master Plan Type One Gateway Concept Plan. D. The Tribe desires to transfer ownership of the work of art to the City, and have such artwork placed on the Reservation at the northwest corner of Ramon Road and Sunrise Way in accordance with this Agreement, the Section 14 Master Plan, and the City of Palm Springs Public Art Program as established by Chapters 2.24 and 3.37 of the Palm Springs Municipal Code ("Public Art Ordinance"). E. The Tribe also desires to formally request reimbursement in the amount equal to the public art in-lieu fee paid by the Ralphs Shopping Center located at the northwest corner of Ramon Road and Sunrise Way as compensation for the work of art. NOW THEREFORE, to comply with the requirements of the Section 14 Master Plan and the Public Art Ordinance, and for good and valuable consideration, the parties hereto hereby agree as follows: 1. Tribal Representative. The Chief Planning and Development Officer or his designee ("Contract Officer"), shall be the Tribe's designated representative with respect to this Agreement. The Contract Officer shall have the authority to give approvals or consents required hereunder and to otherwise act on behalf of the Tribe for purposes of this Agreement. 2. Agreement to Commission Work of Art. The Tribe commissioned Doug Hyde Sculpture Studio ("Artist") and received a work of art described as one of the four Section 14 Master Plan Type One Gateway Elements, as shown on Exhibit "A" ("Artwork"). The Tribe has held sole responsibility with respect to the contract entered into for the commissioning of the Artwork ("Contract") including responsibility for all payments totaling $62,500, 3. Installation of Artwork. The Tribe shall install the Artwork at the southeast corner of the property generally known as the Ralphs Shopping Center, as shown on Exhibit "B" ("Site")- The Tribe shall provide for the installation of the Artwork on the Site including, without limitation, constructing any improvements necessary for displaying the Artwork. 4. Transfer of Ownership. Upon installation of the Artwork, this Agreement serves as formal acknowledgement of transfer of ownership of the Artwork to the City. 5. Duties of Ownership. Upon transfer of ownership, the City shall be responsible for all maintenance necessary as recommended by the Artist with respect to the Artwork to preserve such Artwork in a first class condition. 6. Reimbursement of the "In-Lieu" Public Art Fee. In return for the transfer of ownership of the Artwork from the Tribe to the City, the Tribe shall be reimbursed an amount equal to the in-lieu public art fee of $28,049 that was collected as a Condition of Approval for the Ralphs Shopping Center, less a deposit amount to be retained by the City for the Maintenance of the Artwork. 7. Default. (a) Cure Riahts. In the event of any default or breach of any of the covenants or conditions contained in this Agreement by the City, the Tribe 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 the City has not cured any curable default hereunder within thirty (30) days after written notice from the Tribe of such default, the Tribe shall have the right to cure such default and charge the City with the cost thereof, including all costs incurred in connection with enforcing this Agreement or in collecting such amounts from the City. (b) Location and Removal of Artwork. In the event that the Artwork is removed from the Site, ownership of the Artwork will revert back to the Tribe and this Agreement shall be terminated. 2 8. Identification. The Artwork shall be identified by a plaque stating, at a minimum, the Artist's name, the title, the date the Artwork was completed, and stating that the Artwork was funded by the Agua Caliente Band of Cahuilla Indians and the City of Palm Springs Public Arts Program. The Tribe shall be responsible for the creation and installation of the identification plaque. 9. Maintenance. The City shall repair and/or replace any damage to the Artwork within fourteen (14) calendar days of such damage being discovered. In the event any graffiti is discovered on the Artwork, the City shall remove such graffiti an the day it is discovered. So long as the Artwork remains on the Site, the City shall keep, maintain, repair and replace the Artwork in a good, clean and first class condition and of the highest quality. Materials used to restore, repair or replace any portion of the Artwork shall be of equal or better quality than the original materials used in the Artwork. When necessary, the City shall consult the Tribe and the Artist to determine the best methods of such restoration or repair. All such maintenance, repair, replacement and restoration shall be at the sole cost of the City. In addition to all other remedies provided by law, in the event the City fails to maintain the Artwork, upon reasonable notice, the Tribe may contract the Artist to perform all necessary repairs, maintenance or secure insurance, and charge the City for the costs thereof. 10. Indemnification. The City hereby agrees to indemnify, defend and hold harmless the Tribe, its 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 the City, its agents, employees or contractors, or from the existence of the Artwork on the Site, 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 officers, agents, representatives or employees who are directly responsible to the City. 11. Rights to Artwork. All copyrights to the Artwork shall be transferred to the City together with the Artwork. Artist and the City shall share copyright to the Artwork with the Tribe in accordance with the terms and conditions set forth in Exhibit "C" attached hereto ("Copyright Agreement"). 12, Attorneys' Fees. In the event that any action or proceeding is instituted for the interpretation or enforcement 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. 13, 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. 3 12 14. 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. 15. Counterparts. This Agreement may be executed in counterparts which, when taken together, shall constitute one executed document as though all signatures appeared an one copy. IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above written. [SIGNATURES ON NEXT PAGE] 4 ACUA LIENT AND OF CAHUILLA INDIANS By* Date: Chi f anning & Development Officer CITY OF PALM SPRINGS gy; Date: City Manager ATTEST: By: Date: City Clerk APPROVED AS TO FORM: By; Date: Agency Counsel 5 1� AGUA G I.IENT AND OF GAWUILLA INDIANS 45-- a gy ❑ate:Chi f arming Development Officer CITY OF PALM SPRINGS By: Date: City Manager ATTEST: By: Date: City Clerk APPROVED AS TO FORM: By-. Date: Agency Counsel 5 I � CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT Gt�i• , l-c": .m;S•.. r M.�wC ..�ra'��e;Gi'.5<'F`C .. _�r �'cfa,ShY�'�_,cc',C�'-r'+c , "r�C rw-( State of California County of On 42 ,_ before me, @G _� - oalp lies Insert rva cantl—iAe olm nmor personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(a) IS/are subscribed to the within instrument and acknowledged to me that he/shay executed the same in his(pstAiefr authorized capacity(+%), and that by hfslhQ44etr signature(&) on the C.LIESER Instrument the person(s), or the entity upon behalf of CammrtalNn r 1041M which the persons) acted, executed the instrument. Notary ftil-comets Rfmt:IN County Comm.Fxn Mar 2f1,2018 1 certify under PENALTY OF PERJURY under the laws A of the Stale of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature__ VIflC2 NOlary eC1l ApOVC SiStm'urc of NOlary PyCh4 OPTIONAL Though the rnrormanon below is not required by law,it may prove valuahie to persons retying on the document and could preaant rrapdufam removal and reaHachment of fhra corm to another docur 1. Description of Attached Document Title or Type of CocuCL lT1Jd j'�,` NI�i�T4� Document Cate: _ & L r �/fr—' , ._ Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: flag• �i ,L�- ____ Signer's Name. - Individual Individual Corporate Otficer—Title(s): 6Qrrporale Officer—Tdle(s): - Partner— Limited General _ Partn Limited Gener Attorney m Fact r • Attorney in Fac ' Trustee too lw"o hers Trustee Tcp of li`Lr9C Prv-• Guardian or Conservator Guardian or Consorvator Other: Other, Signr;r Is RLppre riling.—_ Signer Is Representing: m . R.�..•.zrxvxcr. z�T,.e'✓.° 1F�7c ..t. .�c^ C.z. 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EXHIBIT A 17 �. n.. P- .y•. 'M f. `op + e inter , No P ; . ; , „ IrMa aJ � 1�..� .;n 1�J�� ®:'� C..Z+-•'-J x�- Y �MI Ir _ I. [ Lim ;• •i �I s' —r � - i I 1' 1 EXHIBIT"C" (COPYRIGHT AGREEMENT) This COPYRIGHT AGREEMENT ("Agreement") is entered into as of , 2009 by and between the AQUA CALIENTE BAND OF CAHUILLA INDIANS ("Tribe), the CITY OF PALM SPRINGS ("City"), and Doug Hyde Sculpture Studio, ("Artist"). The Tribe has commissioned a work of art ( Artwork') created by the Artist and more particularly described in that certain Consulting Services Agreement dated December 14, 2007, by and between the Tribe and Doug Hyde Sculpture Studio. The Artist hereby acknowledges the Consulting Services Agreement. Artist has delivered the completed Artwork to the Tribe and the Tribe has accepted the Artwork. Pursuant to the Consulting Services Agreement, the Artist has transferred all rights under applicable copyright laws to the Artwork to the Tribe. Artist and Tribe hereby agree to share copyright to the Artwork and hereby transfer, convey and assign to the City the right to make 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 Artwork is one part of a=unique and single- edition suite of pieces, and that the Artist will not execute or authorize another to execute another work of substantially the same design as the Artwork. The covenants and warranties of the Artist shall be binding on the Artist's heirs and assigns. Due to the nature of the Artwork and the Site on which it is to be placed and the public interest of the City, Artist and his/her 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/her agents, heirs, successors and assigns also agree 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. 8 IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above written. AGUA A IE T BAND OF CAHUILLA INDIANS II By: Date: 1� Chie P ann ng & Development Officer CITY OF PALM SPRINGS By: Date: City Manager ARTIST q By: _ Date: 3— �- � 1 Doug Hyde Sc Ip re Sty io 9 `2F�� IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above written. AQUA CALIENTE BAND OF CAHUILLA INDIAN$ By: Date: Chief Planning & Development Officer CITY OF PALM SPRINGS By: Date: City Manager ARTIST By: Date: Doug Hyde Sculpture Studio A 0VED AS TO FORM a rrt a ly.nr"Oi 9 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: CITY OF PALM SPRINGS City Clerk P.O. Box 2743 Palm Springs, CA 92263-2743 Space Above this Line Reserved for use by Recorder AGREEMENT FOR PLACEMENT OF ARTWORK ON PRIVATE PROPERTY AND GRANT OF EASEMENT This AGREEMENT FOR PLACEMENT OF ART ON PRIVATE PROPERTY ("Agreement") is entered into as of 2009 by and between the CITY OF PALM SPRINGS, a municipal corporation ("City") and LUNDIN DEVELOPMENT, COMPANY and SUNRISE PLACE NO. 2, LTD ("Owner"). RECITALS: A. The City has established a Public Arts Program as established by Chapters 2.24 and 3.37 of the Palm Springs Municipal Code ("Public Art Ordinance") which authorizes the placement of works of art on appropriate private property which encourages public access and viewing of the artwork- B. Under the Public Art Fee Program, artwork may be acquired through the Public Arts Fund, either on City or private property, whether on loan, as a gift or purchase- C. The City has acquired a work of art and desires to have such work of art placed on the Owner's property in accordance with this Agreement and the City of Palm Springs Public Art Program. NOW THEREFORE, to comply with the requirements of the Public Art Ordinance, and for good and valuable consideration, the parties hereto hereby agree as follows: 1. Grant of Easement for Display of Public Art. Owner hereby grants and conveys to the City of Palm Springs an easement for permanent use of the Site (as shown in Exhibit "B") for purposes of locating and displaying the Artwork and allowing the public access to the Site to view and enjoy the Artwork at reasonable times and in a reasonable manner ("Contract"), as described in Exhibit "B"_ 2. Maintenance. The City shall provide all maintenance necessary as recommended by the artist with respect to the Artwork to preserve such Artwork in first �G class condition. City agrees to maintain the access paths, landscaping and other improvements to the Site. City shall repair and/or replace any damage to the Artwork within a reasonable time after such discovery. When necessary, City shall consult the artist or another competent Artwork conservationist or restoration specialist to determine the best methods of such restoration or repair. 3. Identification. The Artwork shall be identified by a plaque stating the artist's name, the title, the date the Artwork was completed and stating that the Artwork was funded through the City of Palm Springs Public Arts Program. The plaque will be placed in an appropriate location near the Artwork that facilitates viewing by the public. 4. City Representative. The City Manager, or his designee, a Contract Officer of the City ("City Manager"), shall be the City's designated representative with respect to this Agreement. Under the direction of the City Council, the City Manager shall have the authority to give approvals or consents required hereunder and to otherwise act on behalf of the City for purposes of this Agreement. 5, Owner and Representative. The Owner is the owner of certain property ("Property") generally known as Sunrise Place No. 2, LTD., as shown on Exhibit "B" attached hereto and incorporated herein. The Owner has agreed to Grant an Easement for the placement of Artwork on a portion of the Owner's property which portion is generally depicted and described as the "Site" on Exhibit "B". 6. Location and Removal of Artwork. In addition to any other remedies provided herein, in the event that the Artwork is destroyed, removed from the Site or improperly maintained by the City, the Owner may require that the City replace the Artwork with substitute Artwork of a comparable quality and value as determined at the sole discretion of the City, with consent of the Owner and the Agua Caliente Band of Cahuilla Indians ("Tribe"). 7. Insurance. The City 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 Artwork is located on the Site. 8. Indemnification. The City hereby agrees to indemnify, defend, and hold harmless the Owner 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 City, its agents, employees, or contractors, or from the existence of the Artwork on the Site, 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 from the negligence or willful misconduct of the Owner, its officers, agents, representatives, or employees. 2 1003/029/28303 01 '� 9. Compliance with the Law. City hereby agrees to comply with all applicable statutes, ordinances, orders, laws, rules and regulations, and the requirements of all federal, state and municipal governments and appropriate departments, commissions, boards and offices thereof, which may be applicable to the display of Artwork on the Site or to the use or manner of use of the Site. Without in any way limiting the foregoing, City agrees to comply with The Visual Artists Rights Act of 1990 (17 U.S.C. 101, etseq.). 10. Successors and Assigns. The rights and obligations of Owner under this Agreement shall be applicable to Owner's successors and assigns. 11. 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. 12. 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. 1& Counterparts. This Agreement may be executed in counterparts which, when taken together, shall constitute one executed document as though all signatures appeared on one copy. 3 10031029/28303,02 t �t IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above written. "OWNER" OWNER: Lundin Development Company MANAGER: Sunrise Place No. 2, LTD. By: Name: Leonard H. Lundin Its: Managing Partner By: Name: Gregory W. Bever Its: Managing Partner "CITY" CITY OF PALM SPRINGS, a municipal corporation ATTEST: By: By: City Clerk City Manager APPROVED AS TO FORM: 4 1003/029/28303 02 ;. Material: Granite Veneer Granite Bolder: 24FJ`x24J`A`x3O" (apprI 1 • .. 1' II � .. 1 �n w�H .. atm•• �rrrwnr r� ,r ZI y�'.w w irlr•v Sao �{, , .r,•{,�. » .�.»,Q, -fir ..,Iry , •o- q 'a 1 M r ry r •• l _ �� . wnw � r;•.�h r r�� w EXHIBIT " B" P_O.C. 5 0 ' PARCEL 5 II �� III ROW PM 29638 II PMB 20411 0- 7 3 ii II II II rhi IM I, II T.P.O.B. == == J 19.00' 10.28'_� V - 0 8.91' i� w c N,j Z ( Z `�\� D N 89'32'17" E � i� U) ' O L7 O RAMON ROAD PARCEL MAP 29638, PM BOOK 204, PAGE 10-13, R.C.R_ 29,, DESIGN BY: SCALE: FILE NO.: PUBLIC ART EASEMENT FIJP NTS R 09-0078 CHECKED BY: OLTE SHEET NO.: 04/06/09 1 OF 1 EXHIBIT "B" PUBLIC ART EASEMENT Being a portion of Parcel 5 of Parcel Map 29638, recorded in Parcel Map Book 204, Pages 10-13, inclusive, official records of Riverside County Recorder, located in the City of Palm Springs, California, in said county, and more particularly described as follows: Commencing at the Northeast corner of Parcel 5, of said tract, thence South 00106'42" East, along the east property line of Parcel 5, a distance of 146.10 feet, Thence leaving said east property line, South 89032" 7" West, a distance of 1028 feet, to the True Point of Beginning; Thence continuing South 89132'17'West, a distance of 19.00 feet Thence South 46049'38"West, a distance of 19.08 feet; Thence South 0027'43" East, a distance of 18.67 feet; Thence North 89032'17" East, a distance of 9.67 feet; Thence North 46049'38" East, a distance of 31.58 feet; Thence North 00027'43" West, a distance of 10.42 feet, to the True Point of Beginning. Said easement contains 708 square feet(more or less). 2 A rr,l�r�„iM• � i•MINi�MI - r. irl br lio,� 4 —yl f�jy y�if�t �I - hr •I, r r r'Xnrn'IIi1M1m ", n�. r + 'rn V hIn r. r.rr re. ,i,l�gr.wP+wni�M on p� ..,..r��, , �W�ror•r��rrrn.IMA.'Ma A[ ' rl r i,,, i toll 41,MNti1?11, i .{ -.V* M �.. � .i r..r,�.n+PNA.My�rV _i-!Yq'I twyN N11►Vnl!{� �r{ 1� t, r iia"�7 j n :Itl'n Y Nr r irY 1 lip Mf • n r nlr ron•1rvwrwr�� r�\� m�M �� STATE OF CALIFORNIA ) ss. COUNTY OF ) On _, 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($), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Notary Public (SEAL) 1pD31p29/2H303.02 q � 1