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HomeMy WebLinkAboutA5101 - PUBLIC ART PLACEMENT AND REIMBURSEMENT AGR PALM SPRINGS CLASSIC LLC ESCENA PALM SPRINGS Palm Springs Classic LLC Placement & reimb of art Amend 1 to A5101 MO 7746 09-21-05 FIRST AMENDMENT — ---- - AGREEMENT NO. A5101 PLACEMENT AND REIMBURSEMENT OF PUBLIC ART BY AND BETWEEN THE CITY OF PALM SPRINGS AND PALM SPRINGS CLASSIC, LLC THE FIRST AMENDMENT to Agreement No. A5101 for Placement and Reimbursement of Public Art by and between the City of Palm Springs and Palm Springs Classic, LLC is made and entered into this 7"' day of September 2005 amends that certain Agreement dated May 18, 2005 as follows: Section 1.9 Insurance U Fine Arts Insurance: Owner shall procure and maintain fine arts insurance on the Artwork an all risk form with limits not less than $197,500.00 and a deductible not to exceed Ten Thousand Dollars ($10,000.00) for each loss. Exhibit "D" Copyright Agreement (Paragraph 3): Pursuant to the City Agreement, Artist has transferred all rights under applicable copyright laws to the Art to Owner. Artist and Owner hereby agree to share copyright to the Art and hereby transfer, convey and assign to the City the right to make reproductions, photographs and other two dimensional, less than full-scale, non-exact reproductions of the Art for both commercial and non-commercial purposes. Except as expressly amended herein, all terms of the Agreement shall remain unchanged and in full force and effect. IN WITNESS WHEREOF, the parties have executed and entered into this Amendment as of the date stated above. O'JJNER: Paicn�e SSrings Ciassic, LLC i.,�r--• Managing Mery ber CITY OF PALM SPRINGS, a-municipal rqorpo�Pon--,� City Manager AP O BY 01� t G�llfUtalL ty Clerk viewed and Approved by: Cam/` City A orney pp eWID/Oi7 CONTRACT ABSTRACT Contract Company Name: Palm Springs Classic Company Contact: Summary of Services: Amendment to Agreement No. A5101 Contract Price: -0- Funding Source: n/a Contract Term: May 18, 2005 to May '18, 2015 Contract Administration Lead Department: Community & Economic Development (Public Art) Contract Administrator: Cathy Van Horn Contract Approvals Council/ Community Redevelopment Agency Approval Date: September 21, 2005 Minute Order/ Resolution Number: Mo -1-+L, Agreement No: A5101 Contract Compliance Exhibits: Included Signatures: Included Insurance: On record —submitted 5-18-05 Bonds: n/a Contract prepared by: Community & Economic Development Department 11 Submitted on: 10-24-05 By: Cathy Van Horn Palm Springs Classic LLC Placement & Reimbursement AGREEMENT #5101 MO 7673, 5-18-05 AGREEMENT FOR PLACEMENT AND REIMBURSEMENT OF PUBLIC ART BY AND BETWEEN THE CITY OF PALM SPRINGS AND PALM SPRINGS CLASSIC, LLC AGREEMENT NO. �\(J� This AGREEMENT FOR PLACMENT AND REIMBURSEMENT OF PUBLIC ART made and entered into this 18th day of May, 2005, between the CITY OF PALM SPRINGS, CALIFORNIA, a municipal corporation, hereinafter called the CITY, and PALM SPRINGS CLASSIC, LLC, a California corporation, hereinafter called OWNER. RECITALS WHEREAS, the City established Ordinance NO. 1479, a Public Arts Program and Fund pursuant to Chapters 2.24 and 3.37 (Public Art Ordinance) of the Palm Springs Municipal Code and Section 9311.00 of the Palm Springs Zoning Ordinance; and WHEREAS, the Public Art Ordinance authorizes the placement of works of art on appropriate private property in a manner which encourages public access and viewing of the artwork; and WHEREAS, the City has established that under the Public Art Ordinance, artwork may be directly provided by the developer or an "in lieu" fee may be paid; and WHEREAS, the Owner proposes to install public artwork on publicly accessible sites throughout the development known as the Escena Project, PD 231, Case No. 5.0666, TTM 32233 attached hereto as Exhibit "A" ("Artwork"); and WHEREAS, the Owner will install works of art on sites approved by the Palm Springs Public Arts Commission, as part of the master landscaping plan, prior to start of residential development at their sole cost and expense, such work described in Exhibit "B" (Site); and WHEREAS, the Owner has also submitted a proposal to the City of Palm Springs Public Arts Commission (Commission) seeking reimbursement of public art fees to be paid from",the project in an amount equal to the value of the artwork as approved by the Commission but not to exceed $500,000; and NOW, THEREFORE, THIS AGREEMENT WITNESSETH that for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in consideration of the mutual covenants indicated between the City and Owner, it is hereby agreed that: Chapter 1. Placement of Artwork 1.1 City Representative. The City of Palm Springs Public Arts Commission, an agency of the City ("Commission"), shall be the City's designated representative with respect to this Agreement. Under the direction of the City Council, the Commission shall have the authority to give approvals or consents required hereunder and to otherwise act on behalf of the City for purposes of this Agreement. 1.2 Agreement to Commission Work of Art. Owner has commissioned three separate works of art described and shown on Exhibit "A". Owner is solely responsible with respect to the contract entered into for the commissioning of the Artwork ("Contract") including responsibility for all payments to be made there under. 1.3 Duties of Owner. The Owner owns certain property ("Property') generally known as Escena Project, and has agreed to permanently locate the Artwork on a portion of the Owner's property which portion is generally depicted and described in Exhibit "B". Owner shall provide for the installation of the Artwork on the Site at its sole cost and expense, including, without limitation, constructing any improvements necessary for displaying the Artwork. Upon installation, Owner shall submit a copy of the invoice paid to the Artist and related subcontractors for all works of public art under this Agreement for the purpose of future reimbursement. 1.4 Locations and Removal of Artwork. Each Artwork shall not be removed from the Site without the prior written approval of the Commission, which approval may be withheld in the Commission's sole and absolute discretion. In addition to any other remedies provided herein, in the event that the Artwork is destroyed, removed from the Site or improperly maintained by Owner, the Commission may either require the Owner to (i) pay the art in lieu fee as set forth in Chapter 2.1 below to City or (ii) replace the Artwork with substitute Artwork of a comparable quality and value as determined in the sole discretion of the Commission. 1.5 Identification, The Artwork shall be identified by a plaque stating the artist's name, the title, the date the Artwork was completed and stating that the Artwork was funded through the City of Palm Springs Public Arts Program. The plaque will be placed in an appropriate location near the Artwork that facilitates viewing by the public. 1.6 Ownership. Upon the acceptance of the Artwork and payment therefore, the Artwork and all rights thereto shall be conveyed by Artist to Owner. The Artwork shall remain the property of the Owner, provided, however, that the Owner shall transfer ownership of the Artwork to any successor in interest of the Site. 1.7 Maintenance. Owner shall provide all maintenance necessary as recommended by the artist with respect to the Artwork to preserve such Artwork in first class condition. Owner agrees to maintain the access paths, landscaping and other improvements to the Site in first class condition. Owner shall repair and/or replace any damage to the Artwork within fourteen (14) calendar days of such damage being 2 discovered. In the event any graffiti is discovered on the Artwork, owner shall remove such graffiti on the day it is discovered. So long as the Artwork remains on the Site, Owner shall keep, maintain, repair and replace the Artwork in a good, clean and first class condition and of the highest quality. Materials used to restore, repair or replace ainy portion of the Artwork shall be of equal or better quality than the original materials used in the Artwork. When necessary, Owner shall consult the artist or another competent conservationist or restoration specialist to determine the best methods of such restoration or repair. All such maintenance, repair, replacement and restoration shall be at the sole cost of Owner. In addition to all other remedies provided by law, in the event the Owner fails to maintain the Artwork, upon reasonable notice, the City may perform all necessary repairs, maintenance or secure insurance, and charge the Owner for the costs therefor. In the event the Owner fails to reimburse the City for the reasonable costs thereof after reasonable notice, the City may assess its costs against the Property and establish a lien to be collected in the same manner as nuisance abatement liens pursuant to Section 11.72.265 of the Palm Springs Municipal Code. 1.8 Compliance with the Law. Owner hereby agrees to comply with all applicable statutes, ordinances, orders, laws, rules and regulations, and the requirements of all federal, state and municipal governments and appropriate departments, commissions, boards and offices thereof, which may be applicable to the display of Artwork on the Site or to the use or manner of use of the Site. Without in any way limiting.the foregoing, Owner agrees to comply with The Visual Artists Rights Act of 1990 (17 U.S.C. 101, etseq.). 1.9 Insurance. Owner shall procure and maintain, at its sole cost and expense, in a form and content consistent with industry standards, with an insurer qualified to do business in California and rated "A" or better in the most recent edition of Best Rating Guide with a financial class category of Class VII or better, unless such requirements are waived by the Risk Manager of the City, during the entire term of this Agreement and at all times while the Artwork is located on the. Site, the following policies of insurance: (a) Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance together with a Broad Form CGL Endorsement and insuring against contractually assumed liability, which shall specifically insure Owner's indemnity obligation under Chapter 1.10 below. The policy of insurance shall have a combined single limit liability of One Million Dollars ($1,000,000.00). (b) Workers' Compensation Insurance. A policy of Workers' Compensation Insurance in an amount as would fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both Owner and the City against any loss, claim or damage arising from any injuries or occupational hazards or diseases occurring to any worker employed by or any person retained by Owner in the course of carrying out the obligations of this Agreement. 3 (c) Fine Arts Insurance. Owner shall procure and maintain fine arts insurance on the Artwork an all risk form with limits not less than $197,500.00 and a deductible not to exceed ONE THOUSAND DOLLARS ($1,000.00) for each loss. The payment of any deductible amount shall be the responsibility of Owner All of the above policies of insurance shall be primary insurance and shall name the City, its officers, employees and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. All such policies shall provide that such insurance may not be amended or canceled without providing thirty (30) days written notice by registered mail to the City. Cancellation clause shall read "SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY SHALL MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT". In the s:vent any of such policies are canceled, Owner shall, prior to the cancellation date, submit new evidence of insurance in conformance with the requirements of this Chapter 1.9. Owner shall provide the Commission with Certificates of Insurance evidencing the insurance coverages and policies required hereunder. Owner agrees that the existence of any insurance shall not limit or otherwise affect Owner's obligations under this Agreement. In the event the Risk Manager of City determines that the work or services to be performed under this Agreement creates an increased or decreased risk or loss to the City, the Owner agrees that the minimum limits of the insurance policies required by this Chapter 1.9 may be changed accordingly upon receipt of written notice from the Risk Manager, provided that the Owner shall have the right to appeal a determination of increased coverage by the Risk Manager to the City Council of City within 10 days of receipt of notice from the Risk Manager. 1.10 Indemnification. Owner hereby agrees to Indemnify, defend and hold harmless the City, its officers, agents and employees from and against any and all actions, suits, claims, damages, losses, costs, penalties, obligations, errors, omissions or liabilities (collectively "Claims or Liabilities") arising out of or in any way connected with any act, omission or negligence of Owner, Its agents, employees or contractors, or from the existence of the Artwork on the Site, or related to this Agreement, including, without limitation, bodily injury to or death of persons, injury or damage to property and attorneys' fees, but excluding such Claims or Liabilities resulting solely from the willful misconduct of the City, its officers, agents, representatives or employees who are directly responsible to the City. 1.11 Riqhts to Artwork. All copyrights to the Artwork shall be transferred to the Owner together with the Artwork. Artist and Owner shall share copyright to the Artwork with the City in accordance with the terms and conditions set forth in Exhibit "D" attached hereto ("Copyright Agreement"). 4 Chapter 2. Reimbursement of Art Fee 2.1 Refund of Art Fee. The Owner shall be reimbursed Public Art Fees in an amount not to exceed $500,000. The Owner has submitted a proposed Art Fee Calculation Schedule attached as Exhibit "C" which estimates total art fees paid by the project of approximately $500,000. In the event the Owner installs works of public art with a value approved by the Commission of less than the maximum of $500,000, the remaining (surplus) funds stay in the Public Arts Fund Account to be available for other public art projects located in the City of Palm Springs. If the Owner installs works of public art and the total cost exceeds the maximum $500,000, the Owner shall be responsible for the excess amount and only reimbursed up to the maximum amount allowed under this Agreement. 2.2 Term. The Term of this Agreement shall be Ten (10) years from the date of execution or until a cumulative amount of$500,000 in public art fees is generated by the project and reimbursed to Owner, whichever is sooner. If, during the term of this Agreement, the cumulative amount of art fees paid by all phases of the project are less than $500,000, the Owner shall be reimbursed only up to the amount paid in art fees on the project but not more than $500,000.00. 2.3 Reimbursement Request. Upon commencement of residential development and the collection of Public Art Fees, Owner shall submit quarterly reimbursement requests to the Public Arts Administrator. The amount of the reimbursement request shall not exceed the public art fees collected for the project for the quarterly statement period. 2.4 Sale of Propertv. The Owner agrees and acknowledges that all parcels sold to other builders, whether in bulk or individually, shall not be exempt from paying Public Art Fees incurred for any development in which a public art fee is assessed on the Escena Project. 2.5 Privatization of Site. Should any of the works of public art subject to this Agreement be placed on property that becomes gated, walled, restricted or otherwise inaccessible to the public, then the value of such piece as determined in this Agreement shall be reimbursed by the Owner to the Public Arts Fund. If the Owner has not yet received reimbursement from the City subject to the Public Arts Ordinance and this Agreement, the total amount of reimbursement due to the Owner shall be reduced by that amount. 2.6 Accountinq. The City Finance Department shall maintain the public art foes collected on the Escena Project with accounting records established to sufficiently identify and control these funds. The reimbursements shall be processed through the city's established warrant payment procedure quarterly. 5 Chapter 3. General Provisions 3.1 Default Cure Riqhts. In the event of any default or breach of any of the covenants or conditions contained in this Agreement by Owner, City shall have all rights and remedies permitted at law or in equity including, without limitation, the remedy of specific performance. Additionally, in the event that Owner has not cured any curable default hereunder within thirty (30) days after written notice from City of such default, City shall have the right to cure such default and charge Owner with the cost thereof, including all costs incurred in connection with enforcing this Agreement or in collecting such amounts from Owner. 3.2 Mortgage Protection. No violation of this Agreement shall defeat or render invalid the lien of any mortgage or deed of trust given in good faith and for value. All of the covenants and conditions contained herein shall be binding and effective against any party whose interest is derived through foreclosure, trustee sale, deed in lieu of foreclosure or otherwise provided, however, that any mortgagee or beneficiary who takes title to the Site pursuant to foreclosure or deed in lieu of foreclosure or any purchaser at a foreclosure or trustee sale shall take title free of any claims against Owner arising under this Agreement which became due and payable prior to the date such mortgagee, beneficiary or purchaser takes title hereto. 3.3 Successors and Assiqns. The obligations of Owner under this Agreement shall be binding on Owner's successors and assigns and shall burden the Site and shall nun with the land and be binding upon all successors and assigns acquiring any right, title and interest in and to the Site. 3.4 Attorneys' Fees. In the event that any action or proceeding is instituted for the interpretation or enforcement of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the other party, all costs and expenses related to such action or proceeding, Including, without limitation all attorneys' fees and expert witness fees, both at trial and on appeal. 3.5 Integration, This Agreement and other documents expressly incorporated herein by reference contain the entire and exclusive understanding and agreement between the parties relating to the matters contemplated hereby and all prior or contemporaneous negotiations, agreements, understandings, representations and statements, oral or written, are merged herein and shall be of no further force or effect. 3.6 Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made by written instrument or endorsement thereon and in each such instance executed on behalf of each party hereto. 3.7 Counterparts. This Agreement may be executed in counterparts which when taken together, shall constitute one executed document as though all signatures appeared on one copy. 6 IN WITNESS WHEREOF, the City and Owner have hereunto caused these presents to be executed the day and year first above mentioned. OWNER: Palm Springs Classic, LLC A Delaware Limited Liability Co. BY: Lennar Homes of California, Inc. A California Corporation, aging er � Name: Tom Banks CITY OF PALM SPRINGS, / City Manager ATT APPROVED BY CRY COUNCIL �i' Clerk Fte ie ed and Approved by: kCity Aey (STATE OF CALIFORNIA ) ) ss. COUNTY 0F �',vci—,,;jA Q On as ,dva. a ,, before me, personally appeared personally known to me-(or-preved-to-me-on thebasis-�f-a-tisfactory-euidence)-to be the person(s-) whose names) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/hef/their authorized capacity(ies), and that by hislher/their signature(&}on the Instrument the person(&), or the entity upon behalf of which the person(s)-acted, executed the instrum ent. WITNESS my hand and official seal.Notary Public y -� r:; WEIWAA AS SEAL ;r� CommWbn•ls3e698 wen; sr�,P4 v Nory�.CoNoni© ; COmm�SUnV Notary Public/t-C. i;0 iilco,uaC , My0 Mn.60ftDec25.200E� ' ! _ — RNrsideCounty +i^Vti►-_ hR -M MYCMM.0"05 Dee 25,2008t I1 Exhibit"A" Art Tree by John Oleinik A cluster of five trees varying in height from 17' to 23' placed near the Gene Autry South entrance to the project. The trunks of the trees are made of Corten steel and the leaves are made of Plexiglas. The Commission reviewed the materials and feels comfortable that the artwork will withstand the desert environment relating to heat, wind and sand. The cost of the five art trees is $100,250. yr 1Y , K f r r- 'VJ A FlO f f k f r 1 NT 4 - 8� rt N �+ � �yb EXHIBIT "A." Abstract Animals by Virgil Villers. Three (3) abstract animal figures in varying heights (41 — 60") placed in the triangles of the roundabout off the Vista Chino entrance. The animals will be mounted on large rock formations to give additional height. The cost is $39,800. n : C � / l f} 4 ►sew11111,IJ11 1ir/lu//r/f Ar / v; slfa Ch„ov J- Site �-^=S -Trxi W A6SR.�.. � ,�, ����T Art Trees Emergence III IT 4 �]•_ ^�, - - � - ,�� a 't* .. ens v "� N \ E •" z �' n l 'S " ;aa� c5a � '� � i.� t F��iti4h�t�� �� Is{ � � ���-yew,u I� � �\� �\ i `•�v -riA. � .Yy - r��•..w.No.a«... j �'.-<._' jt -.`b, \ �'•�w�,. - . ,jy.i`i�. ki3 :ia'�cC "� n' I emu. '�2 f ,�' Y�•`Z t ,,l s- �� d-x. ._...,-. ~ �'� �.��r ._.._. Aw LOT•sF LOT 1.1 .NN ``y o ° .wx WELL G7 _ . _':•wii: �<s` '� ^`• �yam_ ''L � �� .,, ell LOT Q. F`�G uy<ps4t rN. - � � , �e.�: '',''ova._ -i.� '. .,. OT•D• e.G �< Site 2 Abstract Animals - .r, Art Fee Llalcullatio 1 Art Fee: 0.2$% of Replacement Value Escena Replacement Value Art Fee Build Area Lot Homesites Home Plan Area/Product Type Size (Acres) Size(Sq.Ft.) TT Map Sq.Ft. Cost/ $9 .0 Home Value Total Value Total PA 1A- Attached 10.00 SFA 18!Ac I$0 1,100 $930 $102,300.00 $18,414,000 $46,035 35 PA 1B -Attached 10.00 SFA 18!Ac 180 1,300 $91.00 $118,300 $21,294,000 $53,2 PA 1C -Attached 9.30 SFA 18/Ac 1 2,000 I 500 $82.00 $164,000$69.00 $$6,232,000 $15 580 5,500 38 P 2A-Detached Golf 0.3 35 2,200 $81.OD $178,200 $6,237,000 $15,593 P 2B -Detached 10.30 5,250 � SFA 8/Ae 42 1,750 $84.00 $147,000 $13,524,000 $33,610 11.90 PA 5A1 -Attached 6,000 41 2,500 $79.00 $197,500 $8,097,500 $20,244 58 P 5B -Detached Golf 8.60 P SC -Detached 16.20 5,250 85 2,200 $81.00 $213,750 $12,397,500 $30,8 13.80 7,150 58 2,850 $75.00 $213,750 $12,397,500 $30,994 U P 6-Detached 1,600 $88.00 ' $140,300 $18,022.400 $45,056 PA 7A cSt SA2 10.70 TH 12/Ac 12$ N P 7-Detached Golf 16.30 6,000 61 . 2,500 $79.00 $207,900 $17,255,700 $43.139 P 7C -Detached 16.80 ti,825 83 . . 2>100 $77.00 $207,900 $17,255,700 $43,139 P 8-Detached 11.80 f>150 43 2;8�6 $75.00 $213,750 $9,191,250 $22.978 w p 9A Detached Golf 12,10 S>a00 48 2>0Q6 �'81 00 9 $178,200 $7,840,800 $19,602 14 P 9B-1?�etached0. 1,.`�� motel 1,287 Total $196,401,150 $491,003