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HomeMy WebLinkAbout7/6/2011 - STAFF REPORTS - 2R �yX +V -tidy P A L M SAP �Z^^ 1 Y• V * A * C'LCOR Aa Poanr*o Q 'F°RN� CITY COUNCIL STAFF REPORT DATE: July 6, 2011 Consent Calendar SUBJECT: APPROVE A RECOMMENDATION TO PURCHASE THE SCULPTURE ENTITLED "MADEMOISELLE COCO" IN THE AMOUNT OF $12,500 FOR PLACEMENT AT THE CITY'S NEW ANIMAL CARE FACILITY LOCATED AT 4575 EAST MESQUITE AVENUE; AND APPROVE AN AGREEMENT FOR PURCHASE AND SALE OF PUBLIC ARTWORK BETWEEN THE CITY OF PALM SPRINGS AND ARTISTS KAREN AND TONY BARONE. FROM: David H. Ready, City Manager BY: Community & Economic Development SUMMARY On June 9, 2011 the Public Arts Commission voted 5/0 to recommend the purchase of the sculpture entitled "Mademoiselle Coco" for $12,500 by artists Karen and Tony Barone for placement at the City's new Animal Care Facility located at 4575 East Mesquite Avenue. RECOMMENDATION: 1. Approve the recommendation to purchase the sculpture "Mademoiselle Coco" for placement at 4575 East Mesquite Avenue; 2. Approve an Agreement for Purchase and Sale of Public Artwork with Karen and Tony Barone for $12,500 in a form acceptable to the City Attorney; 3. Authorize City Manager to execute all necessary documents. STAFF ANALYSIS: On June 9, 2011 the Public Arts Commission voted 5/0 to approve a recommendation to purchase artwork, entitled "Mademoiselle Coco" by artists Karen and Tony Barone. The sculpture is a made from transparent blue topcoat, aluminum and is approximately eight feet four inches high (8'-4"); three feet five inches wide (3'-5"); and seven feet long (T). Maintenance requirements are minimal; the piece will require periodic pressure washing ITEM NO.� - City Council Staff Report July 6, 2011 -- Page 2 Approve Recommendation to Purchase Public Artwork and may need repainting every five to ten years. The annual maintenance costs are estimated to be approximately $500-$800. The Public Arts Commission recommended placement of the sculpture at the City's new Animal Care Facility located at 4575 East Mesquite Avenue to complement the public art sculpture approved on July 7, 2010, "Monsieur Pompadour". Based on the high profile location, staff recommends that the exact placement of the artwork at the site be reviewed and determined in conjunction with the landscape architect. The sculpture has been fabricated and can be displayed at a temporary location during the construction phase of the Animal Care Facility project. FISCAL IMPACT: There is no impact to the General Fund. The cost to acquire and install the sculpture shall be made from the Public Arts Account #150-30-4408-50015; the current balance in this account is 115,8 2. Jennifer He ing Thomas J. Wilson Public Arts Coordinator Assistant City Manager r David H. Ready, Es , City Manager Attachments: Picture and description of Artwork Agreement for Purchase and Sale of Public Artwork 02 Z N slr w Y r a dIF V Title: Mademoiselle Coco Material: Transparent blue coated aluminum Size: 8'-4"H X X-599W X 711- ,�" ✓���"Mx '� "`ta"�v "y t�adr ��7 �r da�+� �� ark �awyf ,r tf .' ��a w r +{� �,^y�✓y a t�'� �f•dN5 �.�w�"d„�'$�rd..,�rdr�,way ,id a ��a '., �:,pp �✓�� r as r d-✓" � aW ?� ° �t, � �I'�,.,pN�t", �.Ny pk tr pa 8a.✓�+mky���" "^�✓" �" p +d !" ,yaw �����+'� a6,r�t�a���"�°3rr.�r~��,a �✓�": i x r. ,r"!r ., , ,rpolo ,.lac J .K,y,Tr*p+rr R+yr'i i% • ��� Aoe 4dL G AGREEMENT FOR PURCHASE AND SALE OF PUBLIC ARTWORK THIS AGREEMENT FOR PURCHASE AND SALE OF PUBLIC ART WORK ("Agreement") is entered into this day of 2011, by and between the CITY OF PALM SPRINGS, a municipal corporation ("City"), acting by and through its City Manager, or his designee, a Contract Officer of the City ("City Manager") and KAREN AND TONY BARONE ("Artist"). RECITALS A. Pursuant to Municipal Ordinance No. 1479, City established the Public Arts Commission ("Commission") and an Art In Public Places Program ("Program"). B. Artist submitted a proposal to the Commission for the sale of an art piece referred to herein as"Monsieur Pompadour" ("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 Artist, and Artist desires to sell to City, artwork described in the Proposal. NOW, THEREFORE, City and Artist, for the consideration and underthe 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. Artist has fabricated or caused to be fabricated, the Artwork under the personal supervision of the "Artist" 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", Artist shall create and transport, the Artwork to the Site at its sole cost and expense. The City shall install the Artwork with the highest standards of care, giving special consideration to protecting the Artwork from theft and/or breakage. 741962.1 1 1.2 City's Installation Costs. City shall bear, all installation costs as it pertains to the site as described in Exhibit "B", relating to any landscaping alterations, lighting enhancements, and concrete materials, as the City reasonably determines is necessary. Artist shall be responsible for delivering the Artwork to the installation site and shall bear all costs of delivery. 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. Artist will present any proposed installation design changes to the City for its approval and acceptance. The City shall have sole discretion to approve and accept any such installation design changes. 1.4 Modifications to Installation. The City shall have the right, before acceptance of the Artwork as defined in Exhibit "D", to request modifications to the installation of the Artwork. Should such modifications result in an increase in cost to Artist, full documentation of such costs shall be submitted to the City in writing and subject to approval by the City. Upon approval, such increased costs shall be paid to Artist prior to the date of installation, in addition to the fee to be paid to Artist pursuant to Section 4 below. In the event the modifications result in a reduction of costs to Artist, the fees owed to Artist pursuant to Section 2 below outlined in Exhibit "C" shall be reduced by a like amount. Except as expressly provided in this Agreement, City shall not intentionally damage, alter, modify or change the Sculpture, without the prior written consent of Artist, 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 Artist. 2. Ownership of Documents, Models. All studies, drawings, designs, and models prepared and submitted by Artist to City relative to this Agreement shall become the property of City. The City may permit Artist 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 Artist is the exclusive intellectual property right owner of any and all designs, drawings, models and artwork created by Artist pursuant to this Agreement. 3. Fee and Interim Payments. As consideration for the Artwork and all services by Artist hereunder, City shall pay Artist the fees set forth on the attached Exhibit "D" in accordance with the time frames provided therein ("Fee Schedule"). THE MAXIMUM AMOUNT OF CITY'S OBLIGATION UNDER THIS AGREEMENT IS THE AMOUNT SPECIFIED UNDER THIS SECTION 3 OF THIS AGREEMENT. 741962 i 2 C ka ARTIST 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. 4. Artist's Rights; City's Ownership Rights. 4.1 Alterations. The City, having expended considerable public funds to purchase the Artwork, and pursuant to its governmental and proprietary responsibilities, intends to display the Artwork at a Site in the City 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 alter the Artwork in City's sole judgment. 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. 4.2 Waiver. With respect to the Artwork produced underthis Agreement, Artist 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 Artists 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, Artist waives any and all such claims against any future owners of the Site, and its agents, officers and employees, for alteration of the Artwork. 4.3 Good Faith. Where time permits, prior to altering the Artwork, City shall make reasonable good faith efforts to notify and consult with Artist, at the last phone number or address provided by Artist to the City, and to come to a mutually agreeable plan for disposition of the Artwork. Such consultation shall be without charge by Artist 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 Artist in the restoration of the Artwork and to compensate Artist for Artist's time and efforts at fair market value,which may be the subject of a future agreement between Artist and City. However, City has no obligation under this Agreement to restore the Artwork to its original condition or to compensate Artist for any restoration work. If Artist 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 artist for such restoration. 741962.1 3 t�i ! 4.4 Disclaimer. If City alters the Artwork without Artist's consent in a manner that is prejudicial to Artist's reputation, Artist 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. Artists' Warranties/Waivers. 5.1 Defects in Materials or Workmanship. Artist warrants that the Artwork and Artist services hereunder will be free of defects in workmanship or materials, and that Artist will, at Artist'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. 5.2 Public Safety. City and Artist shall cooperate to ensure that the Artwork, or the installation, incorporate no feature which is a danger to the public such as sharp edges or points. The City shall review the Artwork and installation plans and shall request any modification relative to public safety prior to installation. Any modifications requested by the City 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 to eliminate such hazards. Artist 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. 5.3 Title. Artist warrants that the Artwork is the result of the artistic efforts of Artist and that the Artwork will be delivered and transferred to City free and clear of any liens, claims, or other encumbrances of any type, exclusive of intellectual property rights of Artist. 6. Excuse or Suspension of Contractual Obligations, Force Majeure. 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 Artist, 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 Artist, within fifteen (15)days of the commencement of such delay, notifies the City in writing of the causes of the delay. 741962.1 4 7. Maintenance of the Artwork. Upon delivery of the Artwork, Artist shall provide City with written instructions for appropriate maintenance and preservation of the Artwork. 8. Default; Remedies. 8.1 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. 8.2 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. 8.3 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. 8.4 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). 8.5 Termination for Default of Artist. City shall have the right to terminate 741962.1 5 t1 IJ this Agreement for cause upon any material breach by Artist of the obligations imposed upon Artist under this Agreement, subject to the requirements of Section 8.1 above 8.6 Termination for Default of City. Artist 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. 8.7 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. 9. Insurance. Artist shall procure and maintain, at its sole cost and expense, until delivery of the Artwork, the following policies of insurance: 9.1 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. 9.2 Workers' Compensation Insurance. Artist shall maintain insurance and shall provide a copy for City upon execution of this Agreement. 9.3 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 741962A 6 10 insurance are canceled, Artist shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to the City. No work or services under this Agreement shall commence until Artist has provided City with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverage's 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 VII or better, unless such requirements are waived by the City Risk Manager due to unique circumstances. 10. Intellectual Property and Publicity Rights 10.1. Copyright. Except as noted in this Agreement, the Artist shall retain all copyrights in all original works of authorship produced under this Agreement. Artist's copyright shall not extend to predominantly utilitarian aspects of the work, such as landscaping elements, furnishings, or other similar objects. Notwithstanding any other provision to the contrary, Artist shall not grant, sell, give, or in any way convey to any person or entity of any kind a copy of the Artwork or any component thereof or any likeness or reproduction of the Artwork or any component thereof without the express written approval of the City. Nothing herein shall prohibit the Artist from providing two dimensional images of the Artwork or portions thereof to be included in any portfolio or other resume of the Artist demonstrating or depicting representative samples of the Artist's work. 10.2. City's Intellectual Property License. Artist grants to City, and to City's agents, authorized contractors and assigns, an unlimited, exclusive, and irrevocable license 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 Artist during the term of this Agreement or resulting from the Artist's services shall be deemed a work made for hire and shall be the sole and exclusive property of the City. Such license rights include, but are 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: 10.2.1 Implementation, Use, and_Display. City may use and display any and all graphic representations or models of the Artwork, as well as the Artwork. To the extent the Artwork involves design elements that are incorporated by City into the design of the Site, City may implement such elements at the Site. 10.2.2 Reproduction and Distribution. City may make and distribute, and authorize the making, display, and distribution of, photographs and any other two or three-dimensional reproductions. City may use such 741962.1 7 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. 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. 10.2.3 Public Records Requests. Any documents provided by Artist to City are public records and City may authorize third parties to review and reproduce such documents pursuant to public records laws. 10.2.4 Title to Work Product. Without limiting the generality of the foregoing, title to all drawings, plans, ideas, concepts, specifications, models, or other tangible work product produced by the Artist pursuant to this Agreement shall become the property of the City when produced. The City shall own the worldwide right, title and interest in such work product. Artist shall deliver all such original work product to the City upon the completion or sooner termination of the Artist services underthis Agreement but may retain copies thereof for its permanent records so long as the same are not used without the City's prior express written consent. 10.3 Third Party Infringement. The City is not responsible for any third party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. 10.4 Credit. Artist 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, CA." City shall credit Artist for the Artwork upon publication of any two or three dimensional reproductions of the Artwork. 10.5 Publicity. City shall have the right to use Artist'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. Artist shall be reasonably available to attend any inauguration or presentation ceremonies relating to the public dedication of the Artwork. 10.6 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. Artist 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. 741962,1 g c. 10.7 Unique. Artist warrants that the design of the Artwork as expressed in the Proposal is an edition of one, and that neither Artist not Artists' agents will execute or authorize another to execute another work of the same or substantially similar image, design, dimensions, and materials as the Artwork. Artist may create 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 Artist plus 70 years or for the duration of the Artwork's copyright protected status, whichever is longer, and shall be binding on Artist and Artist's heirs and assigns. In the case where Artist is comprised of two or more individual persons or a group of people,the measuring life shall be the life of the last surviving individual person comprising Artist. Recognizing that City has no adequate remedy at law for Artist's violation of this warranty, Artist agrees that, in the event Artist breaches this warranty, City shall be entitled to enjoin Artist's breach. 10.8 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 Artwork as an individual piece, separate from or itemized as part of a real property transaction, City shall pay to Artist a resale royalty to the extent required by law, based upon the sale price of the Artwork. 11. Documentation. To the extent possible,Artist shall provide information on the Artwork requested by the City for its registration files. 12. Repair and Restoration. It is the current policy of the City to consult with Artist regarding repairs and restoration which are undertaken during Artist's lifetime when that is practical. To facilitate consultation, Artist will, to the extent feasible, notify the City of any change in his professional address. 13. Reputation. 13.1 City's Commitment. The City agrees that it will not use the Artwork or Artist's name in a way which reflects discredit on the Artwork or on the name of Artist or on the reputation of Artist. 13.2 Artist's Commitment. Artist agrees that it will not make reference to the Artwork or reproduce the Artwork or any portion thereof in a way which reflects 7419G2.1 9 , 3 discredit on City or the Artwork. 13.3 No Assignment or Transfer. The personal skill, judgment and creativity of Artist are essential elements of this Agreement. Therefore, Artist 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. 14. Artist as Independent Contractor. 14.1 Neither City nor any of its employees shall have any control over the manner, mode or means by which Artist, 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 Artist employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Artist 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. Artist 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 any way or for any purpose become or be deemed to be a partner of Artist in its business or otherwise or a joint venture or a member of any joint enterprise with Artist. 14.2 City may require Artist 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 Artist hereunder. Artist 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, Artist 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 Artist costs to complete the installation shall be paid to Artist in advance of the installation of the Artwork. 15. 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 her financial interest or the 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. Artist 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. 741962,1 10 1 16. Covenant Against Discrimination. Artist 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. Artist 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. 17. 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. 18. Governing Law. This Agreement and all matters pertaining thereto shall be construed according to the laws of the State of California. 19. 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. 20. 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 Agreement. Unless hereafter specified, neither party shall be responsible for the services of the other. 21. City Manager. The City Manager, or his designee, a Contract Officer of the City shall be the City's designated representative with respect to this Agreement. It shall be Artist responsibility to assure that the City is kept informed of the progress of Artist services hereunder and Artist shall refer any decision which must be made by City to the City Manager or his designee. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the City Manager. Except as otherwise directed by the City Council, the City Manager shall have the authority to give any approvals or consents required hereunder and to otherwise act on behalf of City in orderto carry out the terms of this Agreement. 22. 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: q To Artist: Karen and Tony Barone P.O. Box 2042 Rancho Mirage, CA 92270 To City: Public Arts Coordinator 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. 23. 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. 741962.1 12 1. IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above written. "ARTIST" a : By: Its: "CITY" CITY OF PALM SPRINGS, a municipal corporation ATTEST: By: By: City Clerk, City Manager James Thompson David H. Ready, Esq., Ph.D. APPROVED AS TO FORM: City Attorney 741962.1 13 I' EXHIBIT "A" (PROPOSAL) (Specifications) The Artist proposal and specifications for the artwork titled "Mademoiselle Coco" is as follows: General Description: Aluminum, transparent blue topcoat, painted with enamel paint. The sculpture stands eighty feet, four inches (8'4") in height, three feet, five inches (3'-5") inches in width and seven feet (T) in length. The sculpture has been fabricated by the artists, Karen and Tony Barone, at their studio located in Rancho Mirage, CA. Maintenance: The sculpture will need periodic wipe down with sponge and water to remove sand and dust. Re-painting may be required every five (5)to ten (10)years. The City will assume maintenance responsibility. One of a Kind: The sculpture is unique and will not be reproduced. Costs: The $12,500 cost includes all materials to fabricate the steel sculpture and delivery charges. City Responsibility: The City will pay all associated costs for the installation of the sculpture at the site. Timeline: The sculpture will be delivered within ninety(90) days after the execution of this Agreement by all parties. 741962.1 14 EXHIBIT "A" ARTWORK a n, 6�r p$ t 61 p �t }R �♦/€p1?� f � „ 3 +fir k a': � a°4�wMl IVI�9 k� SaE`r 3 N 9•. u�ll FI n N ,sp � Title: Mademoiselle Coco ,. Material: Transparent blue coated aluminum Size: 8'-4"H X 3'-5"W X VL 741962.1 15 `:� EXHIBIT "B" (THE SITE) "Mademoiselle Coco"will be installed at the new Palm Springs Animal Shelter located at the southeast corner of Mesquite Road and Vella Road. 741962,1 16 c. S� EXHIBIT "C" (SCHEDULE OF PERFORMANCE) The artist shall deliver the sculpture within ninety (90) days after the full execution of this Agreement to a site specified by the City. 74 1962 t 17 :� A. EXHIBIT "D" (FEE SCHEDULE) Payment for the "Monsieur Pompadour" Sculpture shall be as follows: First payment in the amount of$6,250 shall be payable upon execution of this Agreement; Second payment in the amount of$6,250 shall be payable within 30 days after the delivery of the Sculpture to the City. 741962.1 18 G EXHIBIT "D-1" (SPECIAL REQUIREMENTS) Waiver of certain Insurance Requirements as specified under Section 10 of this Agreement. 1. Insurance. Artist shall procure and maintain, at its sole cost and expense, until delivery of the Artwork to the City, 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. 2. Contractor is a sole proprietor; therefore, Section 10.2 Workers' Compensation Insurance does not apply. 3. Contractor will not be operating an automobile; therefore, Section 10.3 Automotive Insurance does not apply. 741962.1 19 2 F3 EXHIBIT "E" (BILL OF SALE) BILL OF SALE AND ASSIGNMENT THIS BILL OF SALE AND ASSIGNMENT is made as of from (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 , 2011 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 "(the "Property"), including all right, title and interest therein, and shared copyrights thereto. Seller does hereby represent and warrant to Buyer that 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. Artist (Tax.I.D. Number) By: Signature CITY OF PALM SPRINGS a municipal corporation By: City Manager ATTEST: By: City Clerk APPROVED AS TO FORM: CITY ATTORNEY: 741962A 20 24