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HomeMy WebLinkAboutA7127 - EASTERN LION , LLC AMENDMENT NO. 2 TO AGREEMENT FOR PURCHASE AND SALE OF PUBLIC ARTWORK This Amendment No. 2 ("Second Amendment') to the AGREEMENT FOR PURCHASE AND SALE OF PUBLIC ARTWORK ("Agreement') is hereby entered into this day of February, 2019, by and between the CITY OF PALM SPRINGS, a California charter city and municipal corporation ("City"), and EASTERN LION, LLC ("Artist'). Recitals A. On April 19, 2018, the City and Artist entered into an Agreement for the purchase and sale of public artwork. B. On October 15, 2018, the City and Artist entered into Amendment No. 1 ("First Amendment") Agreement to extend the overall time of performance to a total of thirty-two (32) weeks within which time Artist was to fabricate and deliver the artwork to the City. C. On December 13, 2018, the City of Palm Springs Public Art Commission approved a modification to the artwork, specifications, timeframe, and budget as shown in Exhibit A2, and amended below. NOW, THEREFORE, the City and Artist hereby agree as follows: Aareement 1. Exhibit "A" shall be replaced with Exhibit A2 attached to this Second Amendment. 2. Exhibit "C" of the Agreement shall be revised to read as follows: "Artist shall install the Artwork by February 28, 2019" 3. Exhibit "D" of the Agreement shall be revised to read as follows: "The total amount to be paid under this Agreement will be $13,000 of which $5,000 has already been paid." 4. All other provisions of the Agreement shall remain in full force and effect. ORIGINAL BID 960599.2 ANDIOR AGREEMENT IN WITNESS WHEREOF, the parties have duly executed this Amendment on the date first set forth above. EASTERN LION, LLC THE CITY OF PALM SPRINGS ("Artist') ("City") By: Byr Mi I Bimberg David Ready City Manager Approved as to Form: Attest: Edward Kotkin ony Mej City Attorney City Clerk AnPRn1�,r4'f � ._r1 dCLY'CWSL ltiQet i �naE Asa Without The Ex re Authorization Of The Written City Manager, City Gd' / 960599.2 EXHIBIT A2 - Size of sculpture will be 60" x 136.5" x 119.02" (amended to reflect accurate dimensions post fabrication) -- Sculpture to be installed at the median adjacent to the parking lot behind the Palm Springs Visitor's Center. (amended to reflect the new location) (new pictures added below) 4 3 2 1 3 B ' B A ":::: _ _.. _ _. A CHANGE n._ fAOMEM N YEMENT _. B 4 3 2 1... 4 3 2 1 8 B A A CHANGE s MO!AENi 9605 4 3 __ .. 2 AMENDMENT NO. 1 TO AGREEMENT FOR PURCHASE AND SALE OF PUBLIC ARTWORK This Amendment No. 1 ("Amendment") to the AGREEMENT FOR PURCHASE AND SALE OF PUBLIC ARTWORK ("Agreement") is hereby entered into this 1st day of October, 2018, by and between the CITY OF PALM SPRINGS, a California charter city and municipal corporation ("City"), and EASTERN LION, LLC ("Artist"). Recitals A. On April 19, 2018, the City of Palm Springs ("City") and Artist entered into an Agreement for the purchase and sale of public artwork. B. The Artist was provided a twenty-four (24) week timeframe to fulfill the terms of the Agreement. C. The City and Artist desire to extend the term of the Agreement for an additional eight weeks. NOW, THEREFORE, the City and Artist hereby agree as follows: Agreement 1. Exhibit "C of the Agreement shall be revised to read as follows: "Artist shall begin fabrication of the commissioned sculpture after the full execution of this Agreement and deliver the artwork to the City within thirty-two (32) weeks." 2. All other provisions of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties have duly executed this Amendment on the date first set forth above. jSj^^i^'-invrDBycnYMA,'ft EASTERN LION, LLC ("Artist") /7 THE CITY OF PALM SPRINGS ("City") Michael Birnberg David Ready, Esq., Ph.D City Manager Approved as to Form:Attest: Edward Kotkin City Attorney Anthony Mejl City Clerk / f/i rr -. 960599.2 OKINALBID ^D/ORAGREfflejr & AGREEMENT FOR PURCHASE AND SALE OF PUBLIC ARTWORK THIS AGREEMENT FOR PURCHASE AND SALE OF PUB IC. ARTWORK ("Agreement") is entered into and effective this t�, day of fi / 2018, by and between the CITY OF PALM SPRINGS, a California charter ci and municipal corporation ("City"), and EASTERN LION, LLC ("Artist"). RECITALS A. Pursuant to Municipal Ordinance No. 1479, codified in Chapter 2.24 of the Palm Springs Municipal Code, 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 "Moment Movement Change" ("Artwork"). C. City and Artist desire for the Artwork to be installed in a public space 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, 9 � Y P � artwork described in the Proposal. NOW, THEREFORE, City and Artist, for the consideration and under the conditions hereinafter set forth, and pursuant to the authority, terms and conditions set forth in Municipal Ordinance No. 1479, agree as follows: 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 b the City. In addition to the requirements 9 PP 9 Y Y 4 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. The Artist shall 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 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. 3.2218 Eastern Lion - City of Palm Springs ORIGINAL BID Page 1 of 12 AND/OR AGREEMENT 1.3 Installation. Artist agrees to be adhere to all California Building and Safety Codes during the installation process. The City shall review the Artwork and installation plans and shall request any modification relative to public safety prior to installation. Any modifications requested by the City shall be governed pursuant California Building Code and Engineering Standards. 1.4 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. 1.5 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 continues to be described as created by the Artist subsequent to the removal or transfer in question. 1.6 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, attached hereto as Exhibit 11C.11 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 twenty thousand five hundred dollars ($20,500), as set forth on the attached Exhibit "D," attached hereto and incorporated herein by reference ("Fee Schedule"). 3,22.18 Eastern Lion - City of Palm Springs Page 2 of 12 THE MAXIMUM AMOUNT OF CITY'S OBLIGATION UNDER THIS AGREEMENT IS THE AMOUNT SPECIFIED UNDER THIS SECTION 4 OF THIS AGREEMENT, EXCEPT AS THAT OBLIGATION IS MODIFIED UNDER SECTION 1 .3.. 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 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 Americans with Disabilities Act, 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. In executing this Agreement, Artist warrants and covenants that he agrees to and understands this waiver, and has consulted with his own legal counsel regarding the waiver's nature, scope and significance, to the extent that any legal counsel was desired. 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 32118 Eastern Lion - City of Palm Springs Page 3 of 12 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 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 prior to 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. 3.22.18 Eastern Lion - City of Palm Springs Page 4 of 12 7. Excuse or Suspension of Contractual Obligations; Force Maieure. The time period(s) 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. 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. 3.22.18 Eastern Lion - City of Palm Springs Page 5 of 12 9.4 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 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. 9.5 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 under this Agreement, subject to the requirements of Section 9.1 above. 9.6 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. 3.22.18 Eastern Lion - City of Palm Springs Page 6 of 12 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 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 Reauests. 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. 3.22.18 Eastern Lion - City of Palm Springs Page 7 of 12 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 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 Publicit . 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. 3.22.18 Eastern Lion - City of Palm Springs Page 8 of 12 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. 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. 3.22.18 Eastern Lion -City of Palm Springs Page 9 of 12 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 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. In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any 322.18 Eastern Lion - City of Palm Springs Page 10 of 12 Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. 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. 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: 3,22.18 Eastern Lion - City of Palm Springs Page 11 of 12 To Artist: Eastern Lion LLC 18 Stuyvesant Oval, Suite 6A New York, NY, 10009 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 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 or2iginal on the same counterpart. EASTERN LION, LLC By."/ Michael Birnberg ATTEST: CONTENTS APPROVED: CITY OF PALM SPRINGS, CA By Qe a�d �ynW, �. l, =��- y::;�;'iIi Ant�y Mejia, City Clerk eh,�� �?v*l David H. Read y Manager Date: / ,J Date: y/ APPROV S TO FORM: APPROVED BY CITY COUNCIL: By Date: � Agreement No. Edward Z. Kotkin, City Attorney Date: f 3.22.18 APPROVED BY CITY MANAGER Eastern Lion of Palm Springs Page12of12 jn-k—' 0' 1 C� 00 AW? CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§1189 A notary public or ocher clfic:a owf&MV this certificate veeiriaa only the idarsn[y of 11he ir6y dust who aigrad the docuumat to which this catficate a atmchad,and not the Viddnlness,accuracy,or vai3tty of dot docwwvL state of of 1��ef�5y l 0.�Ot('f) 9 ,'WV before, L(nV�IA��ia �l N07&n, Date f�tkwe YJG(knert lime and Tide of the OAScer N appeared �l Mt/�tllt fib 1'i Alsme(q)of 34>arfi1 who proved to me on the basis of satisfactory evidence to be thqjperawX whose hems( GAiscribed to the with inatrumerrt and ackrro>.I tome that execited ttna same in eutivi ized capscdy(r)IB}.and that R�r aKpahrre{�on the mattument the person", or the entity upon behalf of which the personfAj ad,executed the irotru rent i eeAify under PENALTY OF PERJURY under the taws of the Starts of California that the foregoing paragraph is true and correcL WITNESS my hand and official seal. CYNTHIAA BERARDI Notary Public-Cal9omia : Signature- Riverside ^n� jo-,yrGlirlial, Riverside County Commission#2229138 [ SVrmhn*of Notary Pub&c Ex Tres Feb 18 20�22 Pie Nafary seal Above OP 1 MAL Though Nags section is optional cornplsfirg duo lnlonrahm can dater alter stion of the docurneref or firsuclubat Agaftechrimint of Un form to an urrntanoted document Desorption of Attached[)q��r�nC (� DWe.ocu ft iC {>l( Q q u Title or Type of DacunerttNafP.I.nit,,t If ru(I�MS�-A Number of Pages:. EIgnerf}ij Other Than Named Above: Capecdty(ree}Clamed by&9neKa1 Signer a None= Sil ner'a Na ❑Carparato Officer—Tt1e(a}- ❑ ol6ear—Tiiefs}- ❑Partner— ❑Lsnited ❑General — ❑Landed ❑General ❑Indrvidual ❑Attorney in Fact ❑Individual ❑Attorney in Fact ❑Tnratee ❑Marian or or ❑Trustee ❑Guardian or Conservator ❑Other ❑Other signer fa Signer Is Representing: 02014 National Notary Association•www.Netiaallolary.arg•1-MG-US NOTARY f1-800-8784MMn Mam 15097 3.22.18 Eastern Lion - City of Palm Springs Acknowledgment EXHIBIT "A" (ARTWORK) "MOMENT MOVEMENT CHANGE" ARTWORK SPECIFICATIONS Sign & Supports 20' x 10', 1/4" thick metal sheet Laser cut lettering & welding Steel supports over concrete slab $10,000.00 Paint & Hardware Industrial grade paint, spray rig setup Additional installation & setup hardware $1,800.00 Installation Labor based on 4 persons Tools and equipment $2.700.00 Personnel Artist fee, planning, technical design, fabrication & installation management $5,000.00 Proposed contingency of $1,000.00 returned if not used. Total: $20,500.00 3.22.18 Eastern Lion - City of Palm Springs EXHIBIT "A" EXHIBIT "B" (SITE) Parcel F of the downtown Palm Springs site plan, location Belardo Road and Museum Way. USES V v z W� n 5 ar j:7 Al PCX-INTOWN PALM 5PRING5 "z56r-L&.N DEVELA1.11prIENT 3.22.18 Eastern Lion - City of Palm Springs EXHIBIT"B" EXHIBIT "C (SCHEDULE OF PERFORMANCE) Artist shall begin fabrication of the commissioned sculpture after the full execution of this Agreement and deliver the artwork to the City within twenty-four (24) weeks. 3.22.18 Eastern Lion - City of Palm Springs EXHIBIT "C EXHIBIT "D" (FEE SCHEDULE) City shall compensate Artist in an amount not to exceed twenty thousand five hundred dollars ($20,500) ("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 thirty (30) days of the date of this Agreement, and receipt of an invoice, Artist shall be paid twenty-five percent (25%) of the total Fees. Final payment shall be made within thirty (30) days of delivery and satisfactory installation of the Artwork, following the receipt of an invoice; Artist shall be paid the remaining balance of the Fees. APPROVED BUDGET Sign & Supports 20' x 10', 1/4" thick metal sheet Laser cut lettering & welding Steel supports over concrete slab $10,000.00 Paint & Hardware Industrial grade paint, spray rig setup Additional installation & setup hardware $1,800.00 Installation Labor based on 4 persons Tools and equipment $2.700.00 Personnel Artist fee, planning, technical design, fabrication & installation management $5,000.00 Proposed contingency of $1,000.00 returned if not used. Total: $20,500.00 3.22.18 Eastern Lion - City of Palm Springs EXHIBIT"D" EXHIBIT "E" (BILL OF SALE) BILL OF SALE AND ASSIGNMENT THIS BILL OF SALE AND ASSIGNMENT is made as of 2018 from 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 tha ce in Agreement for Purchase and Sale of Public Art Work dated �,` , 2018 between Buyer and Seller (the "Purchase Agreement") Sell r does hereby sell, assign, transfer and deliver unto Buyer, and its successors and assigns, that certain work created by Seller entitled "MOMENT MOVEMENT CHANGE" (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. Eriv, N LI , By: Signature / CITY OF PALM SPRINGS a California charter city and municipal corporation ATTEST: By: By: Community & Economic City Clerk Development Director AP ED S FORM: By: City Manager City Attorney APPROVEQ BY CITY MANAGER a�t, t;o 500.00 A107 322.18 Eastern Lion - City of Palm Springs EXHIBIT"E"