HomeMy WebLinkAbout05046 - JOHN MISHLER PURCHASE AND SALE OF PUBLIC ART WORK WAVE RHYTHMS DOCUMENT TRACKING Page: 34
Report: Expired Documents Summary August 3, 2007
Condition: Oldest Date= 11,ALL Groups,ALL Services,ALL XREFs
Document# bescrintjon Approval Date Expiration mate Closed Date
A5011-C Consulting Service-Indian Oasis Peabody I-lotel & Golf Course Total... 12/22/2004 06/01/2006
Company Name: Keyser Marston Associates
Address: , ,
Group: COMMUNITY& ECONOMIC
Service: In File
xRef; COMMUNITY& ECONOMIC
Ins. Status; No Certificate on file
A5046 Purchase sculpture"Wave of Rhythms$30,000 03/02/2005 03/01/2006
Company Name: John Mishier
Address: � '�
Group: COMMUNITY& ECONOMIC `r
Service: In File C� �
xRef: COMMUNITY& ECONOMIC '1
Ins. Status: Certificate and Policies are OK
A5062 CDBG Grant#B-05-MC-06-0561 FY 05-06 $623,843 04/06/2005 06/30/2006
Company Name: US Dept of HUD
Address: ,
Group: COMMUNITY & ECONOMIC
Service; In File
xRef: COMMUNITY& ECONOMIC
Ins. Status: No Certificate on file
Junu MISnI.n
Purchase of Art
AGREEMENT #5046-A
MO 7641, 3-2-05
AGREEMENT FOR PURCHASE AND SALE OF PUBLIC ARTWORK
THIS AGREEMENT FOR PURCHASE AND SALE OF PUBLIC ART WORK
("Agreement") is entered into this 18th day of May 2005, by and between the CITY OF
PALM SPRINGS, a municipal corporation ("City"), acting by and through its Public Arts
Commission (the "Commission") and John Mishler("Artist").
RECITALS
A. Pursuant to Municipal Ordinance No. 1479, City established the Commission
and an Art In Public Places Program ("Program").
B. Artist submitted a proposal to the Commission for the sale and installation of
an art piece referred to herein as "Wave Rhythms" ("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,forthe 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, transport, and install the
Artwork to the Site at its sole cost and expense. The Artist 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 Citv'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. Artist 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"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 Commission
in writing and subject to approval by the Commission. 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 priorwritten consent of Artist, except in
such cases where damage results from an emergency or as set forth in Section 6.2
below.
1.5 Citv'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. Commencement of Installation of Artwork. Artist 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 Artist to City relative to this Agreement shall become
the property of City. The Commission 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 ownerof any
and all designs, drawings, models and artwork created by Artist pursuant to this
Agreement.
4. Fee and Interim Payments. As consideration for the Artwork and all services
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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 4 OF THIS AGREEMENT.
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.
5. Artist's Riqhts; City's Ownership Riqhts.
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 originally created by
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 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.
5.2 Waiver. With respect to the Artwork produced under this 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.
5.3 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
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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.
5.4 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).
6. Artists' Warranties/Waivers.
6.1 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, orthe 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 Safetv. City and Artist 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
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.
6.3 Title. Artist warrants that the Artwork is the result of the artistic efforts
of Artist and 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 Artist.
7. Excuse or Suspension of Contractual Obliqations; Force Maleure. 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
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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 Commission in writing of the causes of the delay.
8. Maintenance of the Artwork. Upon completion of the installation of the
artwork, Artist 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.
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
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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 Artist. City shall have the right to terminate
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
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 Artist shall be liable for the
reasonable costs City incurs in completing the same. City may withhold payments
to Artist for the purpose of off set or partial payment of the amounts owed City as
previously stated.
9.7 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.
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. Artist 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 Liabilitv 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.
10.2 Workers' Compensation Insurance. Artist 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
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($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)
clays prior written notice by registered mail to City. In the event any of said policies of
insurance are canceled, Artist 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 Artist 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 VII or better, unless such requirements
are waived by the City Risk Manager due to unique circumstances.
It. Intellectual Property and Publicity Riqhts
11.1. 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.
11.2. 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:
11.2.1 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.
11.2.2 Reproduction and Distribution. City may make and
distribute, and authorize the making, display, and distribution of, photographs
and any other two trree=dimensional reproductions. City may use 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. 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.
11.2.3 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.
11.2.4 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 Commission 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.
11.3 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.
11.4 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 Orange County Fire City." City shall credit Artist for the Artwork
upon publication of any two or three dimensional reproductions of the Artwork.
11.5 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
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regarding the City. Artist shall be reasonably available to attend any inauguration or
presentation ceremonies relating to the public dedication of the Artwork.
11.6 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.
11.7 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 similar to 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.
11.8 Resale Rovalty. If City sells the Artwork as a fixture to real property,
and if the resale value of the Artwork is not itemized separatelyfrom 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.
12. Documentation. To the extent possible,Artist 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 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
Commission of any change in his professional address.
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14. Reputation.
14.1 Citv'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.
14.2 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
discredit on City or the Artwork.
14.3 No Assiqnment 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.
15. Artist as Independent Contractor.
15.1 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.
15.2 City and the Commission 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.
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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 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.
17 Covenant Aqainst 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.
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. Governinq 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
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. It shall be Artist responsibility to assure that the
Commission is kept informed of the progress of Artist services hereunder and Artist shall
refer any decision which must be made by City to the Commission. 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 terms of this Agreement.
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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 Artist: John Mishler
410 Chicago Avenue
Goshen, IN 46528
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 oraddress 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.
12
IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first above written.
"ARTIST"
Its:
CITY OF PALM SPRINGS,
a municipal corporation
ATTEST: _
City Clerk City Manager --
APP DASjTO FOr: AP PROVEDBY CITY COUXIL
13
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EXHIBIT "A"
(PROPOSAL)
(Specifications)
The Artist proposal and specifications for the artwork titled Wave Rhythms is as follows:
General Description: Stainless steel sheets shaped and welded together, textured in a
pattern and accented with red and black paint. The two kinetic elements turn randomly in
the wind. A four(4)foot wide round base will have six anchors to attach to the five (5)foot
wide concrete pad. The sculpture stands 14-15 feet in height and eight (8)feet in width at
the top. The sculpture will be fabricated by the artist, John Mishler, in his studio located at
Old Bag Factory complex in Goshen, Indiana. The City does not intend to light the
sculpture.
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)years and new bearings
every ten (10) years. The City will assume maintenance responsibility.
One of a Kind: The sculpture is unique and will not be reproduced. There is a six (6)foot
prototype at the Warsaw High School in Warsaw, Indiana that features only red paint.
Costs: The$30,000 cost includes all materials to fabricate the stainless sculpture;the four
(4) foot wide round base; and delivery and installation charges.
City Responsibility: The City will pay all associated costs for the construction of the five(5)
wide foot concrete pad and a crane to install the sculpture.
Timeline: The sculpture will be completed within four(4) months after the execution of this
Agreement by all parties.
14
EXHIBIT "A"
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EXHIBIT "B"
PUBLIC ART LOCATION
AT SUNRISE PARK
LEGAL DESCRIPTION:
BEING A PORTION OF LOTS 25 AND 26 AS SHOWN ON PALM VALLEY COLONY LANDS, MAP BOOK
14, PAGE 652 OF MAPS, RECORDS OF SAN DIEGO COUNTY, CALIFORNIA, LOCATION DESCRIBED
AS FOLLOWS:
AN 8.00 FEET SQUARE AREA FOR PUBLIC ART, WITH THE SOUTHWEST CORNER OF THE AREA
LOCATED AT 99.00 FEET MEASURED AT RIGHT ANGLES EAST OF THE CENTERLINE OF SUNRISE
WAY AND MEASURED AT RIGHT ANGLES 610.30 FEET NORTH OF THE CENTERLINE OF RAMON
ROAD.
COMPRISING 64 SQUARE FEET, MORE OR LESS.
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16
EXHIBIT °C
(SCHEDULE OF PERFORMANCE)
The artist shall begin fabrication of the sculpture within 15 days after the full execution of
this Agreement.
The finished sculpture will be delivered to the site within four(4) months afterthe execution
of this Agreement.
Artist shall furnish to the Commission, within 30 days afterthe execution of this Agreement,
a schedule for completion of fabrication of sculpture and estimated date of delivery,
Artist shall furnish to the Commission, every 30 days after the start of fabrication of the
sculpture, photocopies of any working drawings or photographs showing the progress of
the fabrication process.
17
EXHIBIT "D"
(FEE SCHEDULE)
Payment for the Wave Rhythms Sculpture shall be as follows:
First payment in the amount of $15,000 shah be payable upon execution of this
Agreement;
>econd payment in the amount of $15,000 shall be payable within 14 days after the
complete installation of the Sculpture.
18
EXHIBIT "D-1"
(SPECIAL REQUIREMENTS)
Waiver of certain Insurance Requirements as specified under Section 10 of this
Agreement.
1. Contractor is a sole proprietor; therefore, Section 10.2 Workers' Compensation
Insurance does not apply.
19
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
2005 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.1.D.
Number)
By:
Signature
CITY OF PALM SPRINGS
a municipal corporation
By:
City Manager
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY:
20
JUN 14.44 QY4 0,54 t481 574 534 6481 P.02i02
AI CORD, CERTIFICATE OF LIABILITY.... INSURANCE E(MMIpO(TYY1T
G/6/05
PR600CER Reliance Insurance Agency THIS CERTIPICATE IS ISSUED AS A MATTER OF INFORMATION
y ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
103 Johnston Street HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXPEND OR
PO Box 749 ALTER THE COVERAGE AFFORDED BY THE POU91ES BELOW,
Goshen IN 46528 INSURERS AFFORDING COVERAGE NAIC#
INSURED INSURERA:
John Mishler INSURER B:
410 Chicago Avenue INSURER C:
Goshen IN 46526 INSURER DI
I _ INSURER E: «...�,,.._ ,.....•..-.._......k....`
COVERAGES
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THB INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING
ANY REQUIREMENT,TERM OR CONOITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY Or;ISSUED OR
MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SURAECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES.AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS-
INSMADW4 1 POLICY EPFECTIVIS POI„ICYEI(PIRATION
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DESMIPYION OP OPERATION I LOCATIONS IYETIICLE9IEXCLYMONS ADO W BY ENDORSEMENT/SPECIAL PROVISIONS
CERTIFICATE HOLDER CANCELLATION
SHOULOANY OFTHE ADOVE DESCRIBES POLICIES BE CANCELLED BEFORE THE EXPIRATION
City of Palm Springs DATE THEREOF,THE ISSUING INSURER WILL ENDEAVOR TO MAIL DAYS WRITTEN
3200 E T,ah11nitz Canyon Way NOTICE TO THE OERTIROATE HOLDER NAMED TO THE LEFT,EUT FAILURE TO DO 30 SHALL
W
Palm Springs CA 92263-2743 IMPOSE NO OBUGAnON OR BWtt OF ANY FIND UPON THE INSURER ITS AGENTS OR
REPRESENTATIVES
AUTHORIZED R2NE;ENTAYI1E _..,_.,..._..__
ACOIRD 25(2001108) m A D CORPORATION 1988
TOTAL P.02
iON-20-200a 16:51 574 534 6481 574 534 6481 P.02i02
�ACOSI LI DATE i1AMNDIYYYYJ
TO CERTIFICATE OF LIABILITY INSURANCE.-
IODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
Reliance Insurance Agency ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER, THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
103 Johnston Street ALTER THE COVERAGE AFFORDED 13Y THE POL)CIES BELOW,
PO Box 749
rgoshen IN 46528 INSURERS AFFORDING COVERAGE - NAIC#
INSURED INsuRERA• Goodyille Mutual
John Mishler INSURER S!
410 Chicago Avenue INSURERC:
Goshen IN 46528 IN—SUUF.ER D;
_ INSURER E: __. _—_..... ..
COVERAGES
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMCD ABOVL'hOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING
ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESORISED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OP SUCH
POLICIES.AGGREGATE LIMITS SHOWN MAY HAV_BEEN REDUCED BY PAID CLAIMS.
IMIR Awl. POLICY NUMBER FDLICYFFFECTIVE P0UCYEkPIRA71ONl
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T NOWOWNEDAUTOS (Per,celdenl) S 300,000
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DESCRIPTION OF OpERATIDNSi LOCATIONS/VEN64E61EXCWSIDN6 ADDED BYENDOn9MENT/SPSO1ALPROVISIONS
2003 ford F150 VIN:2FTRF17203CA59984
CERTIFICATEHOLDER . . CANCELLATION .,_ _.............
SHOULD ANY OFTNE ABOVE DESCRIBED POUCIES BE CANCELLED BEFORE THE EXPIRATION
pL City of Palm Spring$ DATE THEREOF,THE ISSUING INSURER WILL ENDEAVOR TO MML- —DAYS WRITTEN
3200 S Tahquitz Canyon Way NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT FAILURE TO DD SO GIiALL
Palm Springs CA 92263-2743 IMPOSE ND OUMATION OR LIABILITY OF ANY KIND VPON THE INSURER,ITS AGENTS OR
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— AVTHORIZCOREPRESENTATIVE�f/ A —
ACORO 25(2001108) AC ORD CORPORATION 7Saa
TOTAL P.02
CONTRACT ABSTRACT
Contract
Company Name:
Company Contact: John Mishler, Artist
Summary of Services: Purchase of Public Artwork
Contract Price: $30,000
Funding Source: Public Art Special Revenue Fund
Contract Term: May 2005 to October 2005
Contract Administration
Lead Department: Community& Economic Development (Public Art)
Contract Administrator: Cathy Van Horn
Contract Approvals
Council/Community y.°u
Redevelopment Agency
Approval Date: May 18;2-005
Minute Order/ Resolution Number:
Agreement No:
Contract Compliance
Exhibits: Included
Signatures: Included
Insurance: Insurance Certificates Attached
Bonds: n/a
Contract prepared by: Community & Economic Development Department
Submitted on: 6-27-05 By: Cathy Van Horn
M E M O R A N D U M
TO: Cathy Van Horn
Community& Economic Development
FROM: Kathie Hart, CMC
Chief Deputy City Clerk
DATE: July 22, 2005
SUBJECT: John Mishler— Purchase of Art—A5046-a
cc: File
Attached is a copy of the above referenced agreement. We have retained an original our files.
Pease feel free to contact me if there are any questions, ext. 8206.
lkdh
attach.