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HomeMy WebLinkAboutA8297 - BIG SHOW INDUSTRIES - PURCHASE OF ARTWORK "FINDING OUR WAY" AGREEMENT FOR PURCHASE AND SALE OF PUBLIC ARTWORK THIS AGREEMENT FOR PURCHASE AND SALE OF PUBLIC ARTWORK ("Agreement") is entered into and effective this day of 2019, by and between the CITY OF PALM SPRINGS, a California charter city and municipal corporation ("City"), and Big Show Industries, Inc. ("Artist"). RECITALS A. Pursuant to Municipal Ordinance No. 1479, City established the Public Arts Commission ("Commission") and an Art in Public Places Program ("Program"). B. Artist submitted a proposal ("Proposal")to the Commission for the sale of an art piece referred to herein as "Finding Our Way" ("Artwork"). C. City and Artist desire for the Artwork to be installed in a public/private space, visible to the public, located in Palm Springs more particularly depicted on Exhibit "B" attached hereto (the "Site"). D. Consistent with the objectives of the Commission, and in furtherance of the Program, City desires to purchase from Artist, and Artist desires to sell to City, artwork described in the Proposal. NOW, THEREFORE, City and Artist, for the consideration and underthe conditions hereinafter set forth, and pursuant to the authority, terms and conditions set forth in Municipal Ordinance No. 1479, agree as follows: 1. Scope of Services. 1.1 Fabrication and Completion of the Artwork. Artist shall fabricate or caused to be fabricated, the Artwork under the personal supervision of the Artist and in conformity with the Proposal, attached hereto as Exhibit"A"and incorporated herein by reference, and the procedures and timeline set forth in the Schedule of Performance (the "Schedule"), attached hereto as Exhibit "C" and incorporated herein by reference. The Artwork shall not deviate in specifications, including, but not limited to, size, design or material from the Proposal, unless the change is approved in writing by the City. In addition to the requirements described in Exhibit "A",Artist shall create, transport, and deliver the Artwork to a location within the City as identified by the Contract Officer at Artist's sole cost and expense. Artist shall also be responsible for installation of the Artwork. Artist shall bear the risk of loss on the Artwork until it is delivered to the City. 1.2 Artist's Installation Costs. Artist shall bear any installation costs as it pertains to the Site as described in Exhibit "B", attached hereto and incorporated herein by reference, including any landscaping alterations, lighting enhancements, and concrete materials. 952040.1 1.3 Modifications Prior to Installation. The City shall have the right, before acceptance of the Artwork, to request modifications to the Artwork. Should such modifications result in an increase in cost to Artist, full documentation of such costs shall be submitted to the City in writing and subject to approval by the City. Upon approval, such increased costs shall be paid to Artist prior to the date of installation, in addition to the fee to be paid to Artist pursuant to Section 4 below. In the event the modifications result in a reduction of costs to Artist, the fees owed to Artist pursuant to Section 2 below outlined in Exhibit "C" shall be reduced by a like amount. Except as expressly provided in this Agreement, City shall not intentionally damage, alter, modify or change the Sculpture, without the prior written consent of Artist, except in such cases where damage results from an emergency or as set forth in Section 6.2 below. 1.4 City's Removal or Transfer of Artwork. City may, in its sole and absolute discretion, remove or transfer the Artwork to another location, provided, however, that the Artwork is not destroyed, mutilated, or modified, as those terms are used in 17 U.S.C. §106A, and so long as the Artwork can be described as created by the Artist. 1.5 Option to Purchase Copies. City may, but shall have no obligation to, purchase from Artist up to four(4) additional copies of the Artwork at the same price set forth in Section 4 below, within two (2) years of the date of this Agreement. 2. Completion and Delivery of Artwork. The Artwork shall be completed and delivered in accordance with the Schedule of Performance, a copy of which is attached hereto as Exhibit "C". 3. 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. City acknowledges and agrees that Artist is the exclusive intellectual property right owner of any and all designs, drawings, models and artwork created by Artist pursuant to this Agreement. 4. Fee and Interim Payments. As consideration for the Artwork and all services by Artist hereunder, City shall pay Artist the fees in an amount not to exceed NINE THOUSAND DOLLARS ($ 9,000.00) plus applicable sales tax, as set forth on the attached Exhibit "D", attached hereto and incorporated herein by reference ("Fee Schedule"). THE MAXIMUM AMOUNT OF CITY'S OBLIGATION UNDER THIS AGREEMENT IS THE AMOUNT SPECIFIED UNDER THIS SECTION 4 OF THIS AGREEMENT. ARTIST WILL COMPLETE THE WORK AND SERVICES REQUIRED UNDER THIS AGREEMENT FOR THE DESIGN, DEVELOPMENT, CONSTRUCTION,AND DELIVERY OF THE ARTWORK WITHOUT LIABILITY ON THE CITY'S PART FOR ANY PAYMENT 952040.1 2 BEYOND SUCH MAXIMUM AMOUNT. 5. Artist's Rights; City's Ownership Rights. 5.1 Alterations. The City, having expended considerable public funds to commission the Artwork, and 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 must preserve complete flexibility to operate and manage City property 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, during or after the term of this Agreement, 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. 5.2 Waiver. With respect to the Artwork produced under this Agreement, Artist waives any and all claims, arising at any time and under any circumstances, against City, its officers, agents, employees, successors and assigns, arising under the federal Visual Artists 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 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 a building or the Site such that the Artwork cannot be removed from the building or Site without alteration of the Artwork, Artist waives any and all such claims against any future owners of the Site, and its agents, officers and employees, for alteration of the Artwork. 5.3 Good Faith. Where time permits, prior to altering the Artwork, City shall make reasonable good faith efforts to notify and consult with Artist, at the last phone number or address provided by Artist to the City, and to come to a mutually agreeable plan for disposition of the Artwork. Such consultation shall be without charge by Artist unless otherwise specifically agreed in writing. If the Artwork is altered and City intends to maintain the Artwork on display, City shall make a reasonable good faith effort to engage Artist in the restoration of the Artwork and to compensate Artist for Artist's time and efforts at fair market value,which may be the subject of a future agreement between Artist and City. However, City has no obligation under this Agreement to restore the Artwork to its original condition or to compensate Artist for any restoration work. If Artist fails or refuses to negotiate with City in good faith with respect to any restoration, City may contract with any other qualified art conservator or artist for such restoration. 5.4 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 952040.1 3 �F authorship of the Artwork in accordance with California Civil Code §987(d) and 17 U.S.C. §106A(a)(2). 6. Artists' Warranties/Waivers. 6.1 Defects in Materials or Workmanship.Artist warrants that the Artwork and Artist services hereunder 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 twelve (12) month period immediately following completion of the installation of the Artwork. This warranty includes any workmanship or materials which cause the Artwork to deteriorate over said twelve (12) 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. 6.2 Public Safety. City and Artist shall cooperate to insure that the Artwork, or the installation, incorporate no feature which is a danger to the public such as sharp edges or points. The City shall review the Artwork and installation plans and shall request any modification relative to public safety priorto installation. Any modifications requested by the City shall be governed pursuant to Section 1.3 above. Should hazards become apparent after installation, City shall have the right to make adjustments and modifications thereto to eliminate such hazards. Artist agrees to cooperate in making adjustments to the site or pedestal or display of the Artwork, if necessary, to eliminate other hazards which become apparent within one (1) year of the date the Artwork is finally accepted by City. City shall solely bear the cost of any such modifications. 6.3 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. 7. Excuse or Suspension of Contractual Obligations; Force Majeure. The time periods) specified in the Proposal for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Artist, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if Artist, within fifteen (15) days of the commencement of such delay, notifies the City in writing of the causes of the delay. 8. Maintenance of the Artwork. Upon completion of the installation of the Artwork, Artist shall provide City with written instructions for appropriate maintenance and preservation of the Artwork. 952040.1 4 t 9. Default; Remedies. 9.1 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) days of receipt of such notice and completes the cure of such default within thirty (30) 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. 9.2 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. 9.3 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. 9.4 Arbitration. In addition to any other rights or remedies, either party may seek arbitration to cure, correct, or remedy any default or to recover damages for any default. Arbitration shall occur in the State of California according to the rules of the American Arbitration Association. The.prevailing party shall be entitled to recover reasonable attorney's fees, in addition to all other sums provided by law. The internal laws of the State of California shall govern this Agreement(exclusive of the conflicts of laws provision). 9.6 Termination for Default of Artist. City shall have the right to terminate this Agreement for cause upon any material breach by Artist of the obligations imposed upon Artist under this Agreement, subject to the requirements of Section 9.1 above. In such event, City may after compliance with the provisions of Section 9.1 above, take over the Artwork and complete the installation of the Artwork as 952040.1 5 1 such installation is contemplated hereunder, and Artist shall be liable for the reasonable costs City incurs in completing the same. City may withhold payments to Artist for the purpose of off set or partial payment of the amounts owed City as previously stated. 9.7 Termination for Default of City. Artist shall have the right to terminate this Agreement for cause upon any material breach by City of the obligations imposed upon City underthis Agreement, subjectto the requirements of Section 9.1 above. 9.8 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. 10. 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. 11. Intellectual Property and Publicity Rights 11.1. 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"E" ("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. 11.2. 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 952040.1 6 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. 11.3. 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: 11. 3.1 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. 11. 3.2 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, 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. 11.3.3 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. 11.3.4 Title to Work Product. Without limiting the generality of the foregoing, title to all drawings, plans, ideas, concepts, specifications, models, or other tangible work product produced by the Artist pursuant to this Agreement shall become the property of the City when produced. The City shall own the worldwide right, title and interest in such work product. Artist shall deliver all such original work product to the City upon the completion or 952040.1 7 sooner termination of the Artist services under this Agreement but may retain copies thereof for its permanent records so long as the same are not used without the City's prior express written consent. 11.4 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. 11.5 Credit. Artist hereby agrees that all formal references to the Artwork and any reproductions of the Artwork in any form shall include the following credit: "Collection of the City of Palm Springs Public Art Collection." City shall credit Artist for the Artwork upon publication of any two or three dimensional reproductions of the Artwork. 11.6 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. 11.7 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. 11.8 Unique. Artist warrants that the design of the Artwork as expressed in the Proposal 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, except as City may request pursuant to Section 1.6 above. 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 952040.1 8 the event Artist breaches this warranty, City shall be entitled to enjoin Artist's breach. 11.9 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. 12. Documentation. To the extent possible,Artist shall provide information on the Artwork requested by the City for its registration files. 13. 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. 14. Reputation. 14.1 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. 14.2 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. 14.3 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. 15. Artist as Independent Contractor. 15.1 Neither City nor any of its employees shall have any control over the manner, mode or means by which Artist, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Artist employees, servants, representatives or agents, or in fixing their number, compensation or 952040.1 9 hours of service. Artist shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Artist shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of the City. City shall not in any way or for any purpose become or be deemed to be a partner of Artist in its business or otherwise or a joint venture or a member of any joint enterprise with Artist. 15.2 The City may require Artist to make such revisions to the Proposal as are necessary for the installation of the Artwork to comply with applicable statutes, ordinances or regulations governing the services of Artist hereunder. Artist acknowledges (i) that Labor Code Section 1771 may require the payment of prevailing wages and (ii)the Public Contracts Code may require that certain aspects of the installation of the Artwork be publicly bid. Upon request of City, Artist shall make such revisions to the installation of the Artwork and/or supply data to City as is necessary for the installation of the Artwork to comply with the Labor Code or Public Contracts Code; provided, however, that any such changes that increase Artist costs to complete the installation shall be paid to Artist in advance of the installation of the Artwork. 16. Conflict of Interest. No officer, representative or employee of City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer, representative or employee participate in any decision relating to the Agreement which effects his or her financial interest or the financial interest of any corporation, limited liability company, partnership or association in which he or she is, directly or indirectly, interested, in violation of any Federal or California statute or regulation. Artist warrants that it has-not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 17 Covenant Against Discrimination. Artist covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of actual or perceived race, color, creed, religion, sex, marital status, national origin, disability, medical condition, marital status, domestic partner status, gender, gender identity, gender expression, sexual orientation as those terms are defined by California law, or ancestry, or association with members of classes protected in this section or in retaliation or opposition to any practices forbidden under this section, in the performance of this Agreement. Artist shall include a similar provision in all subcontracts associated with this Agreement. Artist shall provide the certification required by Palm Springs Municipal Code section 7.09.040(4). 18. 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. 952040.1 10 19. Governing Law. This Agreement and all matters pertaining thereto shall be construed according to the laws of the State of California. 20. Licenses, Permits and Fees. Any licenses, permits, and approvals required by law for installation of the Artwork on City property shall be obtained by the City at City's sole cost and expense. 21. 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 cant' out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the services of the other. 22. City Manager. The City Manager, or his designee, a Contract Officer of the City shall be the City's designated representative with respect to this Agreement. It shall be Artist responsibility to assure that the City is kept informed of the progress of Artist services hereunder and Artist shall refer any decision which must be made by City to the City Manager or his designee. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the City Manager. Except as otherwise directed by the City Council, the City Manager shall have the authority to give any approvals or consents required hereunder and to otherwise act on behalf of City in order to carry out the terms of this Agreement. 23. 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: Scott Froschauer Big Show Industries, Inc. 10401 Tuxford Street Sun Valley, CA 91352 To City: City Manager City of Palm Springs P.O. Box 2743 Palm Springs, CA 92263 Copy to: City Attorney City of Palm Springs P.O. Box 2743 Palm Springs, CA 92263 952040.1 11 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. 24. Execution in Counterpart. This Agreement may be executed in several counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatories to the original on the same counterpart. 952040.1 12 IN WITNESS WHEREOF, the parties have entered into this Agreement as Of the date first above written. "ARTIST" a : By: Its: "CITY" CITY OF PALM SPRINGS, a municipal corporation ATTZonAyy4!M=ejj By: By. , MMC Clerk David R D., Esq., City anag r APPROVED AS TO FORM: Je rey e13611inger, City Attorney APPftM=&Y=C0UNCL � P4 Not To Exceed$ o� Without The Exp ess Rem Authorization Of The City Managm 13 952040.1 EXHIBIT "A" (PROPOSAL) 952040.1 14 0 Finding Our Way "Finding our Way" is a playful and informative art installation designed to direct visitors who are traveling along Palm Canyon Drive to the Palm Springs Art Museum. The installation takes the form of a classic wayfinding sign using multiple blade signs to provide useful information and playful references to the worlds' museums along with quotes on art. The installation uses the materials and techniques of standard Department of Transportation signage and hardware. This gives the piece longevity and resilience to the elements while playing with visual cues that are already engrained in all of us. The post will be 14' tall, fluted aluminum. The signs are fabricated to DOT specifications with aluminum, with engineering grade reflected vinyl. Price (installed) $9000 Palm SQ�Y`. fat,Drink,Park k, Ali isanyih+n4' AVAndYaarbol �pacarr4��ay en'S t°=`everYh rl9ht to snoppin9 EXHIBIT "B" (SITE) 952040.1 15 1 From: Ann Sheffer To: Jay Virata Daniel DeGarmo Cc: Scott Froschauer Subject: Purchase of artwork Date: Tuesday,May 21,2019 11:07:57 AM Attachments: Microsoft Word-Findino the Way.docx.odf Palm Springs Proposal 190503.odf.odf Findino the Way.docx Hi Jay and Dan -- This is the piece of art that we voted to purchase at our last meeting, called Finding Our Way... At David Ready's suggestion, we are planning to acquire the piece, and then submit several possible locations to the City Council. The artist will;�deliver it on;June 6, and we will determine adocationathat it can be stored, until the location is set at which point we +""-0 ask:the Rublic Works De art to install it. Scott — would you please get in touch with Jay Virata and Dan DeGarmo (emails above) and give them your contact information for the check...and find out what form the invoice should take once the piece is finished and delivered. Thanks! Ann EXHIBIT "C" (SCHEDULE OF PERFORMANCE) Artist shall begin fabrication of the Artwork after the full execution of this Agreement and deliver the artwork to the City. 952040.1 16 EXHIBIT "D" (FEE SCHEDULE) City shall compensate Artist in an amount not to exceed _Nine thousand dollars and no cents ($9,000.00) ("Fees") for purchase of the Artwork. City shall pay Artist within thirty (30) days of an invoice and in accordance with the following schedule: Within 30 days of the date of this Agreement, and receipt of an invoice, Artist shall be paid twenty-five percent of the total Fees. Final payment shall be made within 30 days of delivery of the Artwork, following the receipt of an invoice, Artist shall be paid the remaining balance of the Fees. 952040.1 17 i EXHIBIT"E" (BILL OF SALE) BILL OF SALE AND ASSIGNMENT THIS BILL OF SALE AND ASSIGNMENT is made as of 2019 from (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 , 2019 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 "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. 5 Co raSG 4 -e Artist �. By: _a �1?gnature CITY OF PALM SPRINGS a municipal corporation pp C B City Manager ATTityyClerk By: APPROVED AS TO FO CITY ATTORNEY: 18 952040.1 E 0 'OV Ib (213)21 6-5039 10401 Tuxford St.Sun Valley 91352 ScottC&Bigshowindustries.com Client City of Palm Springs Quote# 2019-34 Address Job Name Finding Our Way City,State, Zip Date 5/21/19 Phone Contact Jay Virata Sculpture, $9,000.00 Finding Our Way(Complete) $9,000.00 Total $9,000.00 Please make checks payable to Big Show Industries. Fed ID#20-3127409 For payments over 30 days due, there will be a 10% surcharge. Thank you!