HomeMy WebLinkAbout05255 - SAMUEL FREEMAN LLC DBA PATRICIA FAURE GALLERY PURCHASE OF ARTWORK LAWN CHAIR Page 1 of 1
Kathie Hart
From: Jennifer Henning
Sent: April 18, 2007 4.55 PM
To: Kathie Hart
Subject: FASTTRACK DOC'S......
Kathie,
Are documents#A5256-Whirlwind IV and 4A5255— Lawn Chair still open? If those documents are still open you may
go ahead and close them. Both of those items have been finished. Thank you and please let me know if you have any
questions. Thank you!
Jennifer Henning
Public Arts&Special Projects Coordinator
Community&Economic Development
City of Palm Springs
Tel:760.778.8408
Fax:760.322.8325
*Please note new email address:
jennifer.henning@paimsprings-ca.gov
www.paimsprLng-q-ca.gov
�0wLG
04/19/07
S Freeman LLC Dba P Faure Gallery
" "LAWN CHAIR"
Agreement A5255
MO 7842 04-05-06
AGREEMENT FOR PURCHASE AND SALE OF PUBLIC ARTWORK
THIS AGREEMENT FOR PURCHASE AND SALE OF PUBLIC ART WORK
("Agreement") is entered into this !7 66 f`" day of— r( 2006, by and between the
CITY OF PALM SPRINGS, a municipal corporation (" IGty"), acting by and through its
Public Arts Commission (the "Commission") and Samuel Freeman, LLC, DBA Patricia
Faure Gallery ("Gallery").
RECITALS
A. Pursuant to Municipal Ordinance No. 1479, City established the Commission
and an Art in Public Places Program ("Program").
B. Gallery submitted a proposal to the Commission for the sale and installation
of an art piece referred to herein as "Lawn Chair" ("Artwork"). The Artwork is offered for
sale to the City, acting by and through the Commission. The Proposal, including all
relevant specifications, is attached hereto as Exhibit "A" and incorporated herein by
reference. Where the Proposal and the terms of Exhibit "A" conflict, the terms of Exhibit
"A" shall control.
C. The Proposal provides that the Artwork will 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 Gallery, and Gallery desires to sell to City, artwork
described in the Proposal.
NOW, THEREFORE, City and Gallery, 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. Gallery has fabricated or
caused to be fabricated, the Artwork under the personal supervision of the Gallery
and in conformity with the Proposal, 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 by motion of the Commission. In addition to the
requirements described in Exhibit"A", Gallery shall create, transport, and install the
Artwork to the Site (but not in relation to the preparation of the site) at its sole cost
and expense. The Gallery shall install the Artwork with the highest standards of
care, giving special consideration to protecting the Artwork from theft and/or
breakage.
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1.2 City's Installation Costs. City shall bear, in its sole and absolute
discretion, any installation costs as it pertains to the site as described in Exhibit"B",
relating to any landscaping alterations, lighting enhancements, and concrete
materials.
1.3 Consultations and Deviations from Proposal. The Parties agree to
cooperate and consult each other during installation of the Artwork to assure
compliance with the specifications in the Proposal. Gallery will present any
proposed installation design changes to the Commission for its approval and
acceptance. The Commission shall have sole discretion to approve and accept any
such installation design changes.
1.4 Modifications to Installation. The Commission shall have the right,
before acceptance of the Artwork as defined in Exhibit"A", to request modifications
to the installation of the Artwork. Should such modifications result in an increase in
cost to Gallery, full documentation of such costs shall be submitted to the
Commission in writing and subject to approval by the Commission. Upon approval,
such increased costs shall be paid to Gallery prior to the date of installation, in
addition to the fee to be paid to Gallery pursuant to Section 4 below. In the event
the modifications result in a reduction of costs to Gallery, the fees owed to Gallery
pursuant to Section 2 below outlined in Exhibit "C" shall be reduced by a like
amount. Except as expressly provided in this Agreement, City or Commission shall
not intentionally damage, alter, modify or change the Sculpture, without the prior
written consent of Gallery, 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 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 can be described as created by the original artist ("Original
Artist").
2. Commencement of Installation of Artwork. Gallery shall commence
installation of the Artwork upon the receipt of a written "Notice to Proceed" from the
Commission. The Artwork shall be completed in accordance with the Schedule of
Performance contained in the Proposal, a copy of which is attached hereto as Exhibit"C".
3. Ownership of Documents, Models. All studies, drawings, designs, and
models prepared and submitted by Gallery to City relative to this Agreement shall become
the property of City. The Commission may permit Gallery to borrow such items as needed
for the installation of the Artwork. 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 Gallery is the exclusive intellectual property right owner of
any and all designs, drawings, models and artwork created by Gallery pursuant to this
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Agreement.
4. Fee and Interim Payments. As consideration for the Artwork and all services
by Gallery hereunder, City shall pay Gallery the fees set forth on the attached Exhibit"D"in
accordance with the time frames provided therein ("Fee Schedule"). If at any time the City
sells, transfers or assigns its rights in the Artwork pursuant to this Agreement before all its
obligations are met under the Fee Schedule, all remaining fees and payments shall
become immediately payable forthwith.
THE MAXIMUM AMOUNT OF CITY'S OBLIGATION UNDER THIS AGREEMENT
IS THE AMOUNT SPECIFIED UNDER THIS SECTION 4 OF THIS AGREEMENT.
GALLERY WILL COMPLETE THE WORK AND SERVICES REQUIRED UNDER THIS
AGREEMENT FOR THE DESIGN, DEVELOPMENT, CONSTRUCTION, AND
INSTALLATION OF THE ARTWORK WITHOUT LIABILITY ON THE CITY'S PART FOR
ANY PAYMENT BEYOND SUCH MAXIMUM AMOUNT EXCLUDING ALL APPLICABLE
STATE OR LOCAL TAXES.
5. Gallery'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 created by the Original
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 alterthe Artwork in City's solejudgment,
acting reasonably. For example, City may alter the Artwork to eliminate hazard, to
comply with the ADA, 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,
Gallery 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 Galleries 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, Gallery waives any and all such claims
against any future owners of the Site, and its agents, officers and employees, for
alteration of the Artwork.
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5.3 Good Faith. Where time permits, prior to altering the Artwork, City
shall make reasonable good faith efforts to notify and consult with Gallery, at the
last phone number or address provided by Gallery to the City, and to come to a
mutually agreeable plan for disposition of the Artwork. Such consultation shall be
without charge by Gallery unless otherwise specifically agreed in writing. If the
Artwork is altered and City intends to maintain the Artwork on display, City shall
make a reasonable good faith effort to engage Gallery in the restoration of the
Artwork and to compensate Gallery for Gallery's time and efforts at fair market
value, which may be the subject of a future agreement between Gallery and City.
However, City has no obligation under this Agreement to restore the Artwork to its
original condition orto compensate Gallery for any restoration work. If Gallery 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 Gallery for such restoration.
5.4 Disclaimer. If City alters the Artwork without Gallery's consent in a
manner that is prejudicial to Gallery's reputation, Gallery 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).
5.5 Limitation of Liability. Upon execution of this agreement, the City and
Commission hereby irrevocably releases and discharges the Gallery from any and
all liability of any kind, including but not limited to any damages or costs for any
injuries however caused, that arise now or in the future in relation to the artwork.
6. Gallery's Warranties/Waivers.
6.1 Defects in Materials or Workmanship. Gallery warrants that the
Artwork and Gallery services hereunder will be free of defects in workmanship or
materials, and that Gallery will, at Gallery'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, or the installation,
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, or their installation, which, either alone or in
combination, result in the tendency of the Artwork, or their installation, to
deteriorate.
6.2 Public Safety. City and Gallery 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 Commission shall review the Artwork and
installation plans and shall request any modification relative to public safety prior to
installation. Any modifications requested by the Commission shall be governed
pursuant to Section 1.3 above. Should hazards in relation to the apparent after
installation, City shall have the right to make adjustments and modifications thereto
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to eliminate such hazards. Gallery 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. Gallery warrants that the Artwork will be installed and transferred
to City free and clear of any liens, claims, or other encumbrances of any type,
exclusive of intellectual property rights of Original Artist.
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 Gallery, 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 Gallery, within fifteen (15) days of the commencement of such delay,
notifies the Commission in writing of the causes of the delay.
8. Maintenance of the Artwork. Upon completion of the installation of the
artwork, Gallery 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.
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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.
9.4 Arbitration. In addition to any other rights or remedies, either party
may seek arbitration to cure, correct, or remedy any default or to recover damages
for any default. Arbitration shall occur in the State of California according to the
rules of the American Arbitration Association. The prevailing party shall be entitled
to recover reasonable attorney's fees, in addition to all other sums provided by law.
The internal laws of the State of California shall govern this Agreement(exclusive of
the conflicts of laws provision).
9.6 Termination for Default of Gallery. City shall have the right to terminate
this Agreement for cause upon any material breach by Gallery of the obligations
imposed upon Gallery underthis 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 Gallery shall be liable for the
reasonable costs City incurs in completing the same. City may withhold payments
to Gallery for the purpose of off set or partial payment of the amounts owed City as
previously stated.
9.7 Termination for Default of Citv. Gallery 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.
9.8 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. Insurance. Gallery shall procure and maintain, at its sole cost and expense,
until completion of installation of the Artwork, the following policies of insurance:
10.1 Comprehensive General Liability Insurance. A policy of
comprehensive general liability insurance written on a per occurrence basis in an
amount not less than ONE MILLION DOLLARS ($1,000,000)combined single limit.
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10.2 Workers'Compensation Insurance. Gallery shall maintain insurance
and shall provide a copy for City upon execution of this Agreement.
10.3 Automotive Insurance. A policy of comprehensive automobile liability
insurance written on a per occurrence basis in an amount not less than either (i)
bodily injury liability limits of TWO HUNDRED FIFTY THOUSAND DOLLARS
($250,000.00) per person and FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) per occurrence and property damage liability limits of ONE
HUNDRED THOUSAND DOLLARS ($100,000.00) per occurrence and TWO
HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, (ii)
combined single limit liability of FIVE HUNDRED THOUSAND DOLLARS
($500,000.00), or (iii) limits as set by the City Risk Manager. Said policy shall
include coverage for owned, non-owned, leased and hired cars.
All of the above policies of insurance shall be primary insurance and shall name
City, its officers, employees and agents as additional insureds. The insurer shall waive all
rights of subrogation and contribution it may have against City, its officers, representatives,
employees and agents and their respective insurers. All of said policies of insurance shall
provide that said insurance may not be amended or canceled without providing thirty(30)
days prior written notice by registered mail to City. In the event any of said policies of
insurance are canceled, Gallery shall, prior to the cancellation date, submit new evidence
of insurance in conformance with this Section to the Commission. No work or services
under this Agreement shall commence until Gallery has provided City with Certificates of
Insurance or appropriate insurance binders evidencing the above insurance coverages and
said Certificates of Insurance or binders are approved by City.
The policies of insurance required by this Agreement shall be satisfactory
only if issued by companies qualified to do business in California, rated "A" or better in the
most recent edition of Best Rating Guide, The: Key Rating Guide or in the Federal Register,
and only if they are of a financial category Class VI or better, unless such requirements
are waived by the City Risk Manager due to unique circumstances.
11. Intellectual Property and Publicity Rights
11.1. General Except as noted in this Agreement, the City and
Commission hereby affirm that the Gallery is not the Original Artist and all
copyrights in all original works of authorship produced under this Agreement remain
at all times with the Original Artist. The City and Commission affirm that by
executing this Agreement, the Gallery is not making any representation or
warranties regarding the intellectual property rights relating to the Artwork or the
Original Artist. For further clarification, all rights and obligations under this section
11 are not applicable to the Gallery.
11.2. Copyright. Original Artist's copyright shall not extend to predominantly
utilitarian aspects of the work, such as landscaping elements, furnishings, or other
similar objects. Nothing herein shall prohibit the Gallery from providing two-
dimensional images of the Artwork or portions thereof to be included in any portfolio
or other resume of the Gallery demonstrating or depicting representative samples of
the Gallery's work.
11.3 City's Intellectual Property License. Except as provided in this Section
11.3, Gallery makes no representations or warranties with regard to the City's
license, if any, 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 Original Artist during the term of this Agreement including such license rights
including, but 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. The City's use and
display of all graphic representations or models of the Artwork, as well as the
Artwork.
11.3.2 Reproduction and Distribution. The City is granted a
license to make and distribute, and authorize the making, display, and
distribution of, photographs and any other two dimensional reproductions.
The Gallery makes no representation or warranty with regard to the City's
use of 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. The 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 Requests. Any documents provided by
Gallery to City are public records and City may authorize third parties to
review and reproduce such documents pursuant to public records laws.
11.3.4 Title to Work Product. The Gallery makes no
representation or warranty with regard to the title to all drawings, plans,
ideas, concepts, specifications, models, or other tangible work product
produced by the Original Artist becoming the property of the City when
produced. The Gallery makes no representation or warranty with regard to
the City's ownership of the worldwide right, title and interest in such work
product.
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11.4 Third Party Infringement. The City and Gallery are not responsible for
any third party infringement of Original Artist's copyright and shall not be responsible
for protecting the intellectual property rights of Original Artist.
11.5 Credit. Gallery 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 Arts Commission." City shall credit
Gallery for the Artwork upon publication of any two or three dimensional
reproductions of the Artwork.
11.6 Publicity. City shall have the right to use Gallery'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. Gallery 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. Gallery 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. Gallery warrants that the design of the Artwork as expressed
in the Proposal is an edition of one, and that neither Gallery nor Gallery's agents will
execute or authorize the Original Artist or another to execute another work of the
same or substantially similar image, design, dimensions, and materials as the
Artwork. Gallery may authorize 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 similarto the environment in which the Artwork is to be displayed at the
Site. This warranty shall continue in effect for a period consisting of the life of
Gallery plus 70 years orfor the duration of the Artwork's copyright protected status,
whichever is longer, and shall be binding on Gallery and Gallery's heirs and assigns.
Recognizing that City has no adequate remedy at law for Gallery's violation of this
warranty, Gallery agrees that, in the event Gallery breaches this warranty, City shall
be entitled to enjoin Gallery'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
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Artwork as an individual piece, separate from or itemized as part of a real property
transaction, City shall pay to Original Artist a resale royalty to the extent required by
law, based upon the sale price of the Artwork.
12. Documentation. To the extent possible, Gallery shall provide information on
the Artwork requested by the Commission for its registration files.
13. Repair and Restoration. It is the current policy of the Commission to consult
with Gallery regarding repairs and restoration which are undertaken when that is practical.
To facilitate consultation, Gallery will, to the extent feasible, notify the Commission of any
change in business address.
14. Reputation.
14.1 City's Commitment. The City agrees that it will not use the Artwork or
Gallery's name in a way which reflects discredit on the Artwork or on the name of
Gallery or on the reputation of Gallery.
14.2 Gallery's Commitment. Gallery 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 Gallery are essential elements of this Agreement. Therefore, Gallery
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.
15. Gallery as Independent Contractor.
15.1 Neither City nor any of its employees shall have any control over
the manner, mode or means by which Gallery, 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 Gallery employees,
servants, representatives or agents, or in fixing their number, compensation or
hours of service. Gallery 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.
Gallery 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 anyway or for any
purpose become or be deemed to be a partner of Gallery in its business or
otherwise or a joint venture or a member of any joint enterprise with Gallery.
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15.2 City and the Commission may require Gallery 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 Gallery
hereunder. Gallery 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, Gallery 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 Gallery costs to complete the installation shall be paid to
Gallery 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 herfinancial interest orthe 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. Gallery 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. Gallery covenants that, by and for itself, its
heirs, executors, assigns, and all persons claiming under or through them, that there shall
be no discrimination against or segregation of, any person or group of persons on account
of race, color, creed, religion, sex, marital status, national origin, or ancestry in the
performance of this Agreement. Gallery shall take affirmative action to insure that
applicants are employed and that employees are treated during employment without regard
to their race, color, creed, religion, sex, marital status, national origin, or ancestry.
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
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Agreement. Unless hereafter specified, neither party shall be responsible for the services
of the other.
22. Commission. The Commission shall be the City's designated representative
with respect to this Agreement. Unless otherwise specified herein, any approval of City
required hereunder shall mean the approval of the Commission. Except as otherwise
directed by the City Council, the Commission 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 terns 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:
To Gallery: Samuel Freeman, LLC
DBA, Patricia Faure Gallery
2525 Michigan Ave. Suite B7
Santa Monica, CA 90404
To Commission: Public Arts Commission
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 original on the same
counterpart.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date
first above written.
Samuel Freeman, a Limited Liability
Company, DBA Patricia Faure Gallery
a :
By:
Its
CITY OF PALM SPRINGS,
a municipal corporation
ATTEST:
s� City Clerk City Manaor- -
it APPROVED BY CITY COUNCIL
APP O D AS TO FORM: /
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EXHIBIT "A"
(PROPOSAL)
(Specifications)
The proposal made by Samuel Freeman, LLC DBA Patricia Faure Gallery is to purchase
one (1) Blue McRight sculpture.
The title and size of the sculpture is as follows:
1. Lawn Chair (2002) (108" x 60" x 40")
Total purchase price for the one (1) sculpture is $8,660.00.
VJ-
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M
4117S1#4 4 !:
wr
s
BfuaWleRight "in]possible Lawn Chair"
T6"longby 5'frlgt by42'"wide,steel uphorstered with attinceal grass
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EXH1131T "B"
(SITE)
A site for the sculpture, "Lawn Chair" has not been determined. The Public Arts
Commission will review potential sites and submit to City Council for approval.
15
EXHIBIT "C"
(SCHEDULE OF PERFORMANCE)
The one (1) sculpture is an existing work of art, ready to be transported and installed, at
a respective site to be determined; therefore, the followings Sections are not applicable:
1. Scope of Services
1.1 Fabrication and Completion of the Artwork.
1.3 Consultations and Deviations from Proposal
1.4 Modifications to Install
2. Commencement of Installation of Artwork
6. Gallery's Warranties/Waivers
6.1 Defects in Materials or Workmanship
6.2 Public Safety
10. Insurance (All Insurance requirements are waived, the City shall add the
artwork to its Insurance Policy)
10.1 Comprehensive General Liability Insurance
.3ffb
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EXHIBIT "D"
(FEE SCHEDULE)
The City shall pay the following payment schedule to the Gallery:
One installment: $8,660.00 payable within 30-days of date of execution of the
Agreement for Purchase and Sale of Public Artwork.
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EXHIBIT "E"
(BILL OF SALE)
BILL OF SALE AND ASSIGNMENT
THIS BILL OF SALE AN[) ASSIGNMENT is made as of
_ 1104/v4' from Samuel Freeman, LLC, DBA Patricia Faure Gallery
(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
that certain Agreement for Purchase and Sale of Public Art Work dated
q/210 , 2006 between Buyer and Seller(the "Purchase Agreement') Seller
does Hereby sell, assign, transfer and deliver unto Buyer, and its successors and assigns,
that certain work created by Seller entitled Lawn Chair(the "Property"), including all right,
title and interest therein, and shared copyrights thereto.
Seller does hereby represent and warrant to Buyerthat 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.
Samuel Freeman, a Limited
Liability Company, DBA Patricia
Faure Gallery
�(Tax.I.D.
Numbe
By:,'
S' nature
CITY OF PALM SPRINGS
a municipal corporation
City Manager fig`
A E APPROVED BY CITY COUNCIL
ity Clerk
6,Ail�:1PROVED AS TO I 'g
_-
C[TY ATTORNEY: /" �7�7 r��r
18