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HomeMy WebLinkAboutA6596 - AGUA CALIENTE BAND OF CAHUILLA INDIANS - AGR FOR TRANSFER OF ARTWORK OWNERSHIP OF YOUNG BASKETMAKER 2015-0339548 07/30/2015 12:18 PM Fee: $ 0.00 RECORDING REQUESTED BY: Page 1 of 12 CITY OF PALM SPRINGS Recorded in Official Records County of Riverside Peter Rldana Assessor—County I Clerk-Recorder AND WHEN RECORDED MAIL TO: 'III ,l�,. 'EI�V�'��r��Qf>,�I III City of Palm Springs P. O. Box 2743 J I R I A Exam: Palm Springs, CA 92263 Page DA PCOR Misc Long 1 RFD 1st Pg Adn Pg Cert CC Attn: Office of the City Clerk TZ SIZE NCOR S M F CH T. Filing fee EXEMPT per Government Code 6103 AGREEMENT FOR TRANSFER OF ARTWORK OWNERSHIP A6596 I l.Ir 0, Dcxum.'i t THIS AREA FOR RECORDER ' S USE ONLY THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3.00 Additional Recording Fee Applies) 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 Ab�b AGREEMENT FOR TRANSFER OF ARTWORK OWNERSHIP This AGREEMENT FOR TRANSFER OF ARTWORK OWNERSHIP ("Agreement") is entered into as of 2015 by and between the AGUA CALIENTE BAND OF CAHUILLA INDIA S ("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"). The Tribe and City are sometimes referred to hereinafter individually as a "Party" and collectively as the "Parties." RECITALS: A. The Section 14 Master Plan Type 2 Gateway Concept Plan calls for the installation of a gateway sculpture in the median at the intersection of Tahquitz Canyon Way and Sunrise Way. C. The Tribe has commissioned a work of art that complies with the gateway sculpture requirements of the Type 2 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 in the Tahquitz Canyon Way median west of 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. 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. 1 2. Agreement to Commission Work of Art. The Tribe commissioned Doug Hyde Sculpture Studio ("Artist") and received a work of art titled the "Young Basketmaker" and described as one of the two Section 14 Master Plan Type 2 Gateway Sculptures, 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. 3. Installation of Artwork. The Tribe shall install the Artwork in the Tahquitz Canyon Way median, 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 other than those being constructed as part of the Tahquitz Canyon Way Median Landscaping Improvements Project, City Project No. 08-20. 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. Default. (a) Cure Rights. 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 Permanent Removal of Artwork. In the event that the Artwork is permanently removed from the Site, unless otherwise agreed to by both Parties, ownership of the Artwork will revert back to the Tribe and this Agreement shall be terminated. Removal for maintenance pursuant to paragraph 8 shall not be deemed a permanent removal. 7. 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. The Tribe shall be responsible for the creation and installation of the identification plaque. 8. 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 on the day it is discovered. So long as the Artwork remains on the Site, the 2 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 at the sole discretion of the Tribe, charge the City for the costs thereof. 9. 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 Tribe, its officers, agents, representatives or employees who are directly responsible to the Tribe. 10. Rights to Artwork. Unless provided otherwise herein, 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"). In the event ownership of the Artwork reverts back to the Tribe, the City will relinquish its share of copyright to the Artwork and the Copyright Agreement shall be terminated. 11. 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. 12. 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. 13. 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. 3 14. 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. IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first above written. [SIGNATURES ON NEXT PAGE] 4 EXHIBIT "A" "YOUNG BASKETMAKER" lei tT y,.ur a� 5 AGUAt E BAND OF CAHUILLA INDIANS By: Date: CWing & Development Officer T mas J . Davis CITY OF PALM SPRINGS By' Date: Q1 City Manager David H. Ready ATTEST: ByC Date: 071231Zo 15 City Clerk James Thompson APPROY S TO FORM: By: Dater 5 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California ) County of R oe'd5 %C -e— ) � On 3" 1( (S_ before me, t - Q LC 4. Qr)�Qc' Date Here Ihsert Name and Title of the OilrcW personally appeared `rk r)wi ru ba U. Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the persons} whose name4s) is/are subscribed to the within instrument and acknowledged to me that he/stye/they executed the same in his/her/their authorized capacity, and that by his/her/their signature(s}on the instrument the person(s), or the entity upon behalf of which the person(s)-acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. LaLARRY FOSSUM WITNESS my nd off icial.sfid ' Commission s 1970591 Notary Public-California = ` Riverside County Signature M Co + mm.Expires Feb 25,2016 ig ture of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document A0,,ea_.a,� {ter Tra�s{ e Title or Type of Document:02 4?two. Dwoars( p Document Date: i Zr /2-/`l Number of Pages: el Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Partner — ❑ Limited ❑General ❑ Individual ❑Attorney in Fact ❑ Individual ❑Attorney in Fact ❑Trustee ❑ Guardian or Conservator ❑Trustee ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer Is Representing: Signer Is Representing: ©2014 National Notary Association •www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item #5907 ACKNOWLEDGMENT OF INSTRUMENT (Cal. Civil Code Section 1181) State of California ) County of Riverside ) ss. City of Palm Springs ) On July 23, 2015, before me, JAMES THOMPSON, CITY CLERK, CITY OF PALM SPRINGS CALIFORNIA, personally appeared DAVID H. READY, who I personally know is the CITY MANAGER of the CITY OF PALM SPRINGS whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his official and authorized capacity on behalf of the City of Palm Springs, a California Charter City. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and the official seal of the City of Palm Springs, California, this 23rd day of July, 2015. {Of p PLM Sp4 iy c V N CglIFO RN Signature: MES THOMPSON, CITY CLERK City of Palm Springs, California Title or Type of Document: AGREEMENT FOR TRANSFER OF ARTWORK OWNERSHIP Agua Caliente Band of Cahuilla Indians EXHIBIT 9" . ,_ . am2 Gateway Location »� / x . • � � Mlo,41; gCUET ■■AmGR■TI■N n■em mNYml■m■I■ TYPE 2 GATEWAY SCULPTURE m@7 ■� ■ , \~ < , y \ , Type=Gateway m ,Town m_, § « E . >�__, . . 6 . EXHIBIT "C" (COPYRIGHT AGREEMENT) This COPYRIGHT AGREEMENT ("Agreement") is entered into as of Ake. /f? , 2014 by and between the AGUA 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 unique and a single-edition, 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 not 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. [SIGNATURES ON NEXT PAGE] 7 IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above written. AGUA C IENT BAND OF CAMILLA INDIANS By: Date: 12 I Z Chi f Planninqq & Development Officer Th mas J . 6avis CITY OF P"APRINGS By: — •�� Date: City Mafiager David H. Ready ARTIST By: Date: I /k- 2c)I Doug Hy Sc pture Studio ATTEST: es T o '&;", i�YZ e> r� APPROVED BY CTf COUINCIL aPo FORM "10A of Wfiawdy DATE ppp AS TO FO r A RNA E�Y�� DATE 2/ '11�:-- 8