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Home My WebLink AboutA5981 - JAMES AND JACKIE LEE HOUSTON AGR FOR TRANSFER OF ARTWORK OWNERSHIP AGREEMENT FOR TRANSFER OF ARTWORK OWNERSHIP City of Palm Springs Public Art Program THIS AGREEMENT FOR TRANSFER OF ARTWORK OWNERSHIP AND ASSIGNMENT OF ALL RIGHTS IN ARTISTIC WORK (the "Agreement") is made and entered into as of this �5 day of 2010, by and between the CITY OF PALM SPRINGS, a California charter city and munialpal corporation ("City"), and JAMES HOUSTON and JACKIE LEE HOUSTON, individuals (collectively, "Donor"). City and 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 three (3) works of art to the City, and have such artwork initially placed at the location of 655 East Amado 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 three(3) works of 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 three (3) works of art are described as (collectively, "Art"): (i) "Blue River Woman" — a 5' sculpture by artist, Craig Goseyun, of a standing Native American woman with a water jug. (ii) "Audry" — a 5' sculpture by artist, John Kennedy, of a standing woman with a small child. (iii) "Flying Kites" — a 12' sculpture by artist, Kevin Robb, in stainless steel free-forrn on a round base. Section 2. Value of Art. The combined estimated value of the Art is One Hundred Sixty Eight Thousand Three Hundred Seventy Five U.S. Dollars and 00/100 ($168,375.00). 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. Transfer of Ri hts of Reproduction. Donor hereby transfers all rights that they possess 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, Donor shall not acquire or claim any rights in or to the Art, any uses, reproductions, or derivatives thereof or any proceeds therefrom. Moreover, Donor acknowledges and agrees that City, in it sole and exclusive discretion, may, among other acts, temporarily or permanently modify, alter, change, or destroy the Art, sell the Art, or relocate the Art from its initial location. Section 5. City's Sole and Exclusive Ownership Rights. Donor shall not retain ownership of or any right, title, or interest in any of the Art, including, but not limited to, in any related trademarks, copyrights, or other proprietary rights. The Parties agree that the Art and all such rights, title, and interest in or to the Art shall belong to and are being transferred and assigned in their entirety to the City for whatever use it desires, and that City does and shall at all times own, solely and exclusively, complete and unencumbered, all right, title, and interest in and to all of the Art worldwide, any modifications thereto and any derivative works based thereon (including, but not limited to, all patent, copyright, trademark, service mark, and trade secret rights held by Donor). Nothing contained herein shall be deemed to constitute a mere license or franchise in City. The Parties further agree that City will be free to use, modify, distribute, sell, license, or otherwise exploit all such Work and any modifications to or derivative works based thereon without any restrictions or limitations or any obligations or payments to Donor and that Donor shall have no such rights. Section G. Originality of Art. Donor hereby represents and warrants that (i) the Art is original; (ii) at the time of transfer hereunder, Donor is 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 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 delivered to the City and installed to the satisfaction of 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 A reernent. 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. 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 (1) the Party for which he or she is executing this Agreement is duly authorized and existing, (ii) be 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. "CITY" CITY OF PALM SPRINGS, a California charter city and a municipal corporation DAVID H. READY, D. City Manager ATTEST: APPROVED BY CITY MANAGER ,��LLc4� ULAl" u ` MES THOMPSON o 1 Z o f La a City Clerk / APPROVE TO FORM: DO GL S C. HOLLAND City Att rney "DO ' ES HOUST , ACKIE LEE HOUSTON