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HomeMy WebLinkAboutA6551 - KAREN & TONY BARONE - TRANSFER OF ARTWORK OWNERSHIP - R HERO ' N AGREEMENT FOR TRANSFER OF ARTWORK OWNERSHIP City of Palm Springs Public Art Program THIS AGREEMENT FOR TRANSFER OF ARTWORK OWNERSHIP IN ARTISTIC WORK (the "Agreement") is made and entered into as of this 2 r 'r day of 0-O'CA 2014, by and between the CITY OF PALM SPRINGS, a California charter city and municipal corporation ("City"), Bunni & Rick Benaron and Donna MacMillan ("Donors"). City and Donors are sometimes hereinafter referred to as "Party" and are hereinafter referred to collectively as the "Parties." RECITALS A. Donors desire to transfer physical ownership of artwork ("Art") to the City, and have such Art placed at a location selected by the City, and approved by the Donors, in accordance with this Agreement, 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"). B. The City desires to accept the transfer of the physical ownership of the Art in accordance with the terms of this Agreement and the Public Art Ordinance. NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: AGREEMENT Section 1. Description of Art. The Art, by artists Karen & Tony Barone, is described as follows: the sculpture titled "R. HERO" is fabricated from solid aluminum, painted red with signature black Dalmatian spots, with a clear-coat finish, and is 6'-2" tall in size, and is depicted in Exhibit "A", attached hereto and incorporated herein by reference. Section 2. Location of Art. The Art will be placed at a location selected by the City and approved by the Donors. The City will furnish a plaque adjacent to the artwork at the site, with the title of the work, the name of the Artists, acknowledgment of the Donors and the Artists mission to honor firefighters and first responders, plus City protocol requirements. The City agrees to stage a dedication ceremony inviting firefighters and first responders, City officials, media and the public. The City may, in its sole discretion, move the Art from its initial location, at any time for any reason, to a suitable alternate highly trafficked outdoor public site that is in keeping with the Artists' & Donors mission of honoring firefighters and first responders and is acceptable to the Donors. Section 3. City Representative. For purposes of this Agreement, the contract administrator and City representative shall be the City Manager (hereinafter the "City Representative"). Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the City Representative. Section 4. Rights of Reproduction. Donors agree that Artists hereby retain all copy rights and rights of reproduction as that term is defined in California Civil Code Section 982, in the Art, including but not limited to the right to claim statutory copyright in the Art and the right to reproduce the Art in any manner whatsoever for commercial and non-commercial purposes. Hereinafter, The City shall not acquire or claim any rights in or to the Art, other than ownership of the physical work itself and "fair use" privileges. The artists have created the red "R. HERO" (Art) Dalmatian puppy dog sculpture as one in a series of brightly colored "R. HERO" sculptures destined for sites across the country to honor firefighters and first responders. The Artists agree not to duplicate the red color on the "R. HERO" (Art) on any other "R. HERO" sculptures located in the Coachella Valley. Moreover, the City may not temporarily or permanently modify, alter, change, or destroy the Art, or sell the Art. Should the City no longer desire to retain physical ownership of the "Art", it may only return the "Art" to the Donors, or relocate the "Art" to an entity acceptable to the Donors. Section S. City's Sole and Exclusive Ownership Rights. Although the City shall hold ownership & title of the red "R. HERO" sculpture, the Donors agree the Artists shall retain all rights related to trademarks, copyrights or other proprietary rights. The City will have the right to reproduce the photo image of the artwork for historical and promotional use. Section 6. Originality of Art. Donors hereby represent and warrant that (i) the Art is original; (ii) at the time of transfer hereunder, Donors are the sole owners of the physical art and the Artists are the sole owners of all rights the Artwork possesses, including copyright, trademark, and other proprietary rights; (iii) Donors have and will have full and sufficient right to assign all rights of physical ownership granted herein; iv) Donors are not under any obligation to transfer or sell any of the Art to any third party; (v) the Art has not been and will not be published under circumstances which have or will cause a loss of any copyright, trademark, or other proprietary rights therein; and (vi) the Art does not and will not infringe any patent, copyright, trademark, or other proprietary rights, privacy rights, or other rights of any third party, nor has any claim (whether or not embodied in a legal action, past or present) of such infringement been threatened or asserted, nor is such a claim pending, against Donors (or, insofar as Donors are aware, against any entity from which Donors have obtained any rights). Section 7. Risk of Loss. Donors bear the sole risk of damage to or loss of the Art until such Art is picked up by the City and installed by the City. Section 8. Attorneys' Fees. In the event either Party shall commence any action against the other Party relating to this Agreement, or for the breach of any obligation contained herein, the prevailing Party shall be entitled to recover from the losing Party reasonable attorneys' fees, expenses, and court costs. Section 9. Successors and Assigns. The terms of this Agreement shall be binding upon and inure to the benefit of the respective heirs, successors in interest, and assigns of the Parties hereto. Section 10. Entire Agreement. This Agreement represents the entire integrated agreement between the City and the Donors, and supersedes all prior negotiations, representations, or agreements, either written or oral. This Agreement may be amended only by a written instrument signed by both the City and the Donors. Section 11. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force and effect. Section 12. Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California. In the event of litigation between the Parties, venue in State trial courts shall be exclusively in Riverside County, California. In the event of litigation in a United States District Court, exclusive venue shall lie in the Central District of California. Section 13. Execution. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument. Section 14. Authority. Each of the undersigned individuals represent and warrant that (i) the Party for which he or she is executing this Agreement is duly authorized and existing, (ii) he or she is duly authorized to execute and deliver this Agreement on behalf of the Party for which he or she is signing, (iii) by so executing this Agreement, the Party for which he or she is signing is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which the Party for which he or she is signing is bound. Section 15. Recitals. The recitals above are hereby incorporated by reference in the Agreement as though fully set forth herein, and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written. 1r "CITY'• CITY OF PALM SPRINGS, a California charter city and a municipal corporation DAVID H. READY, Es ., City Manager ATTEST DAMES THOMPSON - APPROVED BYC COUNCIL ity Clerk I APPR V S TO FOR DOUGLA C. HOLLAND City Attorney " DONO Bunni Benar Rick Benaron Don a MacMillan EXHIBIT "A" a (ARTWORK)