The URL can be used to link to this page

Home My WebLink About06346 - KAREN AND TONY BARONE AGREEMENT FOR TRANSFER OF ARTWORK Kathie Hart From: Jennifer Henning Sent: Thursday,September 10, 2015 9:37 AM To: Kathie Hart Cc: Jay Thompson Subject: RE:A6346- BARONE Agreement 1 V� Goad morning! Yes, you may close this agreement. All the best, \ �� (7601llwiv Public Arts&Special Projects Coordinator Community&Economic Development City of Palm Springs Tel: 760.778.8408 Fax: 760.322.8325 www.palmsprings-ca.gov City Hall is open 8:00am - 6:00pm Monday-Thursday and closed every Friday. Please note effective July 7, 2014 Public Arts hours are only Wednesday and Thursday 7:00am— 6:00Am. From: Kathie Hart Sent: Tuesday, August 11, 2015 5:24 PM To: Jennifer Henning Cc: Jay Thompson Subject: A6346 - BARONE Agreement Jennifer: This agreement is for the Gift Donation of R Hero for Fire Station 3 590 E Racquet Club Road, approved by the Council in 2013. OK to close this agreement file? Kathie Hart, MMC Chief Deputy City Clerk City of Palm Springs (760) 323-8206 L (760) 322-8332 3200 E. Tahquitz Canyon Way Kathie.Hart@PalmSpringsCA.gov Palm Springs,CA 92262 City }-fall is open 8 am to 6 pm, Monday through Thursday, and closed on Fridays. 1 AGREEMENT FOR TRANSFER OF ARTWORK OWNERSHIP City of Palm Springs Public Art Program THIS AGREEMENTFOR TRANSFER OF ARTWORK OWNERSHIP AND ASSIGNMENT OF ALL RIGHTS IN ARTISTIC WORK (the "Agreement") is made and entered into as of this IaZ day of W. 2013, by and between the CITY OF PALM SPRINGS, a California charter city and municipal corporation ("City"), and KAREN AND TONY BARONE ("Artists" or "Donor"). City and Artists/Donor are sometimes hereinafter referred to as "Party" and are hereinafter referred to collectively as the "Parties." RECITALS A. Donor desires to transfer ownership of artwork ("Art") to the City, and have such Art initially placed at the location of 590 East Racquet Club Road, Palm Springs, California, 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 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 is described as follows: the sculpture titled "R. HERO" is fabricated from solid aluminum with a clear-coat finish, painted blue with signature black Dalmatian spots, and is 6'-2" in size, and is depicted in Exhibit "A", attached hereto and incorporated herein by reference. Section 2. Initial Location of Art. The Art will initially be placed at 590 East Racquet Club Road, Palm Springs, California, as shown on Exhibit "B", attached hereto and incorporated herein by reference. The City will furnish a plaque adjacent to the artwork at the site, with the title of the work, the name of the Artists, the phrase "Donated by Karen and Tony Barone in honor of firefighters and first responders," plus the City's standard requirements. The City agrees to stage a dedication ceremony inviting firefighters and first responders, City officials, media and the public. The City may move the Art from its initial location, at any time for any reason, to a suitable alternate location mutually agreed upon by City and Donor. In 950599.1 ORIGINAL BID ANOfOR AGREEMENT the event City and Donor are unable to agree upon an alternative location, the Art shall be returned to Donor. Section 3. City Representative. For purposes of this Agreement, the contract administrator and City representative shall be the City Manager or his designee (hereinafter the "City Representative"). Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the City Representative. Section 4. Transfer of Rights of Reproduction. 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 blue "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 blue 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 Artists or donate the "Art" to an entity acceptable to the Artists. Section 5. City's Sole and Exclusive Ownership Rights. Although the City shall hold ownership & title of the blue "R. HERO" sculpture, the Artists retain all rights related to trademarks, copyrights or other proprietary rights as set forth in Section 4 above. The City shall have the right to reproduce the photo image of the artwork for historical and promotional use. Section 6. Originality of Art. Artists hereby represents and warrants that (i) the Art is original; (ii) at the time of transfer hereunder, Artists are the sole owner of the Art and of all rights it possesses therein including copyright, trademark, and other proprietary rights; (iii) Donor has and will have full and sufficient right to assign all rights granted herein and to waive all rights relinquished herein;(iv) Donor is 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 950599.1 present) of such infringement been threatened or asserted, nor is such a claim pending, against Donor (or, insofar as Donor is aware, against any entity from which Donor has obtained any rights). Section 7. Risk of Loss. Donor bears the sole risk of damage to or loss of the Art until such Art is received 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 Donor, 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 Donor. 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. 950599.1 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) 950599.1 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written. ..cITY. CITY OF PALM SPRINGS, a California charter city and a municipal corporation DAVID H. READY, E , . City Manager ATTEST: APPROVED BY CITY COUNCIL �.� DAMES THOMPSON �j�City Clerk APPROVED AS TO FORM: City Attorney "ARTISTS/DONOR" r arone O a T n ar 950599.1 EXHIBIT "A" (ARTWORK) 'Il # ft IL V k Y ., Y �' • -f 950599.1 EXHIBIT "B" (THE SITE) The recommended installation site for the sculpture "R. Herd' is at Palm Springs Fire Station Number 3 at the northwest corner of Racquet Club Drive and Via Miraleste. 950599.1