HomeMy WebLinkAbout1/19/2005 - STAFF REPORTS (18) DATE: JANUARY 19. 2005
TO: CITY COUNCIL
FROM: DIRECTOR OF COMMUNITY& ECONOMIC DEVELOPMENT
APPROVAL OF AGREEMENT FOR PLACEMENT OF ARTWORK ON PRIVATE PROPERTY
AND GRANT OF EASEMENT BETWEEN THE CITY OF PALM SPRINGS AND THE AGUA
CALIENTE DEVELOPMENT AUTHORITY (ACDA), AND REIMBURSEMENT OF THE ART
FEE IN THE AMOUNT OF $9,300.00,
RECOMMENDATION:
That the City Council approve the Agreement for Placement of Artwork on Private Property and
Grant of Easement between the City of Palm Springs and the Agua Caliente Development
Authority and approve the request for reimbursement of the art fee in the amount of$9,300.00.
BACKGROUND:
The Agua Caliente Development Authority is requesting a reimbursement of the public art fee
paid as part of the development of the Indian Canyons Resort Clubhouse project. The ACDA
commissioned an artist to incorporate a public art piece at the entrance of the clubhouse.
In accordance with the Public Arts Ordinance No 1479, Section 3.37.070, the applicant paid the
public arts fee in the amount of$12,718.98 and submitted an art-in-lieu application to the Public
Arts Commission for review and approval. The Public Arts Commission reviewed the proposed
artwork at their February 18, 2004 meeting and unanimously approved the application and
artwork as submitted.
Placement of the artwork on private property meets the objectives of the Public Arts Ordinance.
Given the Commission's February 18 approval, upon completion of the installation of the
artwork the applicant is eligible to request a reimbursement of the public arts fee paid during the
building permit process or the value of the rtwork, whichever is less. The reimbursement
request is$9,300.00, which would be pai from the Public Arts Fund account#150-4408-50015.
No gene al fund ney is used for this roject.
Dir ctor f Com ity& Economic Development
Ap ��"
City Manager ( -
Attachments: 1) Minute Order
2)Agreement for Placement of Artwork on Private Property
and Grant of Easement
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
CITY OF PALM SPRINGS
City Clerk
P.O. Box 2743
Palm Springs, CA 92263-2743
Space Above this Line Reserved for Use by Recorder
AGREEMENT FOR PLACEMENT OF ARTWORK ON PRIVATE PROPERTY
AND GRANT OF EASEMENT
This AGREEMENT FOR PLACEMENT OF ART ON PRIVATE PROPERTY
AND GRANT OF EASEMENT ("Agreement") is entered into as ofDec, by
and between the CITY OF PALM SP GS, a municipal corporat on ("City")
and fit 7N 3Q, •„c rev, a-,,-, "Owner").
RECITALS:
A. The City has established a Public Art Fee Program which authorizes the
placement of works of art on appropriate private property which encourages public access
and viewing of the art work.
B. Under the Public Art Fee Program, artwork may be provided or an "in lieu"
fee may be paid.
C. Owner desires to commission a work of art and have such work of art
placed on its property in accordance with this Agreement and the City of Palm Springs
Public Art Program as established by Chapters 2.24 and 3.37 of the Palm Springs
Municipal Code ("Public Art Ordinance").
NOW THEREFORE, to comply with the requirements of the Public Art Ordinance,
and for good and valuable consideration, the parties hereto hereby agree as follows:
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.
2. A eement to Commission Work of Art. Owner has commissioned a work
of art described as . Owner is solely responsible with respect to the
contract entered into for the commissioning of the Art ("Contract") including
responsibility for all payments to be made thereunder. a
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1003/029/28303.02
3. Duties of OwnerA The Owner owns certain property ("Property") generally
known as f ObM Arrh" ,cam :; as shown on Exhibit "A" attached hereto and
incorporat d herein. The Owner has agreed to permanently locate the Art on a portion of
the Owner's property which portion is generally depicted and described as the Site on
Exhibit "A" ("Site"). Owner shall provide for the installation of the Art on the Site at its
sole cost and expense, including, without limitation, constructing any improvements
necessary for displaying the Art.
4. Default.
(a) Cure Rights. 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.
(b) Location and Removal of Art. The Art 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 Art 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 Section 7 below to City or (ii) replace the Art with
substitute artwork of a comparable quality and value as determined in the sole discretion of
the Commission.
?t5 Identification. The Art shall be identified by a plaque stating the artist's
name, tle, the date the Art was completed and stating that the Art was funded through
the City of Palm Springs Public Arts Program. The plaque will be placed in an appropriate
location near the Art that facilitates viewing by the public.
6. Ownership. Upon the acceptance of the Art and payment therefor, the Art
and all rights thereto shall be conveyed by Artist to Owner. The Art shall remain the
property of the Owner, provided, however, that the Owner shall transfer ownership of the
Art to any successor in interest of the Site.
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10031029128303.02
7. Refund of Purchase Price. The City shall reimburse the Owner, an amount
equal to the lesser of, (i)the actual amount paid by Owner to the Artist under the Contract;
or (ii) the amount previously paid by Owner to the Public Art Fund. The amount to be
refunded shall not exceed the amount paid into the Public Arts Fund by the Owner. The
Owner's request for reimbursement shall be submitted only after the Art is installed and
approved by the Public Arts Commission. The request for reimbursement shall be in
writing and include (i) a copy of the permits set forth in Exhibit `B" attached hereto
("Permits") clearly showing the art fee and (ii) a copy(s) of the invoice Exhibit "C"
attached hereto ("Invoice")paid to the Artist and related subcontractors if any.
8. Grant of Public Access Easement. Owner hereby grants and conveys to the
City a perpetual nonexclusive easement in gross over and across the Site for purposes of
displaying the Art and allowing the public access to the Site to view and enjoy the Art at
reasonable times and in a reasonable manner("Easement").
9. Maintenance. Owner shall provide all maintenance necessary as
recommended by the artist with respect to the Art to preserve such Art 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 Art within fourteen (14) calendar days of such damage being discovered. In
the event any graffiti is discovered on the Art, owner shall remove such graffiti on the day
it is discovered. So long as the Art remains on the Site, Owner shall keep, maintain, repair
and replace the Art in a good, clean and first class condition and of the highest quality.
Materials used to restore, repair or replace any portion of the Art shall be of equal or better
quality than the original materials used in the Art. When necessary, Owner shall consult
the artist or another competent artwork 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 Art, 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.
10. 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 Art 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, et seg.).
11. 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
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10031029/29303.02
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 Art 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 Section 12 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.
(c) Fine Arts Insurance. Owner shall procure and maintain fi a arts
insurance on the Art an all risk form with limits not less than — �� Z-
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 event 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 Section 11. 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
Section 11 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.
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1003/029/29303.02
12. 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 Art 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.
13. Rights to Artwork. All copyrights to the Art shall be transferred to the
Owner together with the Art. Artist and Owner shall share copyright to the Art with the
City in accordance with the terms and conditions set forth in Exhibit "D" attached hereto
("Copyright Agreement").
14. 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.
15. Successors and Assigns. The obligations of Owner under this Agreement
shall be binding on Owner's successors and assigns and shall burden the Site and shall run
with the land and be binding upon all successors and assigns acquiring any right, title and
interest in and to the Site.
16. 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.
17. Intepration. 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.
18. 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.
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1003/029/28303.02
19. 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.
1003/029/28303 02
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first above written.
"O ER"
a• c(ly I
v.
Its: Z
"CITY"
CITY OF PALM SPRINGS,
a municipal corporation
ATTEST:
By: By
City Clerk City Manager
APPROVED AS TO FORM:
1003/029128303.02
STATE OF CALIFORNIA)
) ss.
COUNTY OF )
On 6 before iAe,4, i,� L. /,1r n
personally appeared personally known
to me ) to be the ersonjiK) whose named
is are subscribed to the within instrument and acknowledged to rq,e th e1 he/they executed the
same in is her/their authorized capacityoes), and that by hi /her/their signature" on the
Instrument the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
o � t
'z
Notary Public
(SEAL)
ELAINE L.WEDEKIND
Commission# 1399015
*My
Notary Public-California
Riverside County
Comm.Expires Feb 8,2007
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1001/029/28303.02
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'"`" s• City of Palm Springs
V
BUILDING PERMIT
•C'ttrFOFH\'•
Perml[Technlclan Angela LaFrance
DATE PLAN CHECK PLAN CHECK CASE 1 B E M P EP HP
suomrrrED 10/30/21 NUMBER 8130 FEE 4900 . 00 NUMBER 3 . 2308 PERMITS X X X X X X
Owner Address Phone bole AC.Number
Agua Caliente Dev. Authority, 901 E. Tahquitz, PS 325-2279
Contractor Address Phone state LIc.Number
Owner
Architect Address Total value of work$ 2, 543 , 796 . 00
Pearson Arch 74040 Hwy 111, Palm Desert Sewer Agreement#
Engineer Address _ School Fee See Receipt
B.G. Structural 45555 Via Corona, Indian Wells, Fixture Units 115
Lot# Block# Tact Bullding Address Building Permit
SEE + 1097 MURRAY CANYON DRIV 001-32201 7, 883 . 55
Lot Size Zone Height Occupancy A.A.No. Total Areal Plan Check
TAG A3/S3 3 . 2308 12035 001-31301 646 .27
Setbacks As Front Side Side Rear Parcel Number SMIP Tax
Constructed 512-14 0-001 001an12 534 . 20
Building Gaage/Carport Roofed Pato/Porch Microfilm
Square
Footage 5879 6156 001-34308 250 . 00
Use of building SHIP Type Permit Type Corsi.Type Fire Sprinkler Units New Sew Cn Permit Issuance
Commercial 2 CKA VN Y 0 0 Dot-32204 60 . 00
CIdSS Of New Additions AI[eations Repair Remodel Removal Replace Construction Tax
Work X X 001-31601 4, 814 . 00
Describe work In detail: DbLFee/Rmw/Mist.
To replace demolished clubhouse: Construct new 001-32210 0 . 00
clubhouse on existing golf course grounds. To include
dining room, golf shop, offices, restrooms, kitchen, lockers, Construction Permit
snack bar, bar, covered patios. Construct golf cart storage 001-32203 0 . 00
with cart wash with metal awning, bathroom & laundry Sewer Inspection
alcove. Foundation issued on seperate permit. 001-32202 46 . 00
Special Conditions: Sewer Main
Clubhouse: 5879 S.F. (demolished clubhouse was 8084 SF 420-38l 0 . 00
with same uses. no additional T.U.M.F. due, existing golf Sewer Agreement
course site) .
Cart Storage: 6156 S.F. TaA 0 . 00
Previous clubhouse did not appear to be connected to Sewer Correction Fee
sewer. No }take �dP NYtiaps i yPr{t}T E o Pa PeceD 420a8703 23 , 345 . 00
IMPORTANT Drainage Fee
0 . 00
The issuance of this permit shall not be held to be an approval of the violation of any provisions of any TUMF Fee
city or county ordinance or state law. 134-33110 0 . 00
Inspections of work are subject to an approved set of plans being on the job. Changes to plans are Misc.Filing Fee
not to be made without permission of the Building and Safety Divisions. 0 . 00
Public Arts Fee
The owner and/or contractor is responsible for establishing all property lines.All utilities must be 150-34390 12 , 718 . 98
underground. Planning Fee
This permit will expire if work is not started in 180 days or if more than 180 days elapses between 001-34303 2 , 743 . 14
inspections.
I certify that I am familiar with all requirements of the City of Palm Springs as they apply to this permit
and understand that these requirements must be completed prior to final inspection and that no 53 , 041 . 14
certification of occupancy will be issued Until such time as these requirements are met. I certify that TOTAL FEE
I have read this application and state that the information is true and correct.
Id
OWNER/CONTRACTORAGENT-- DATE BY E"
This is a Building when properly filed out,signed and validated,and is not transferable ity�
CUSTOMER'S COPY PERMIT NUMBER C 8774
EXRTRTT "Pit
149265-'
DEPARTMENT DATE
BTOMER'S ORDER NO.
i INDIAN
ME .� CANYONS
DRESS fi.., f �j r —, 1 I I_ M' ,'�2'� C� RESORT PALM SPRINGS
rY,STATE,ZI /V
1LD BY ASH C.O.D. CHARGE O ACCT. MDSE RETD PAID OUT
UANTIJY DESCRIPTION PRICE AMOUNT
2202004
February 20, 2004
r ,ale
70
ons Resort Palm Springs-Clubhouse
t
AMOUNT(S
3 v • 12'.a— '�.
0
13
14
z7 ��Qa
15 Cl :d c 7—
16
17
18 4
19 r�r0 r55.2;J�
20
RECEIVED BY
fez+' �ti Cs r'r✓
I�jAdams KEEP THIS SLIP FOR REFERENCE *. `
5805 l- /
Agua Cal ien Ftor¢ s - PALM SPRINGS,CA 9
me 5283 t
CANYON 92264
trt tY national bank
A Subsidiary of Agun Calieute 90 427811222
Band of Cahuilla Indians ''
901 E.Taliquitz Canyon Way Suite B-200 760-325-2279 00005282
palm Springs,CA 92262 ,
DAY DATE AMOUNT � t
NINE THOUSAND THREE HUNDRED AND XX / 100 Dollars �lf "
12/0 04 *****$ 00 . 00
TOTHE Richard M. Salgado
ORDER 205 Desert Lakes Dr .
OF
Rancho Mirage, CA 92270
EXHIBIT"D"
COPYRIGHT AGREEMENT
This COPYRIGHT AGREEMENT ("Agreement") is entered into as of
1 �°Lf y and( between the CITY O PALM SPRINGS, a
municipal corporation("City"), < -D S�</Oil("Artist")and �'L) tl"- (Owner).
Owner has commissioned a work of art ("Art") created by the Artist and more
particularly described in that certain Agreement for Placement of Art on Private Property
and Grant of Easement dated ' ?, 200�, by and between the City and
Owner ("City Agreement"). Artist hereby acknowledges the City Agreement. Artist has
delivered the completed Art to Owner and Owner has accepted the Art.
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 and three-dimensional, less than full-scale, non-exact
reproductions of the Art for both commercial and non-commercial purposes.
The Artist warrants that the work is unique and a single-edition, and that the Artist
will not execute or authorize another to execute another work of substantially the same
design as the Artwork. The covenants and warranties of the Artist shall be binding on the
Artist's heirs and assigns.
Due to the nature of the Art and the Site on which it is to be placed and the public
interest of the City, Artist and his/her agents, heirs, successors and assigns hereby waive
any and all rights they may have under the California Art Preservation Act, as set forth in
California Civil Code Section 987. The Artist, his/her agents, heirs, successors and assigns
also agree to attempt to defeat this waiver by cooperating with any other person or
organization which seeks to bring an action under California Civil Code Section 989.
F:
Page 9 of
1003/029/283UO2 4 �'�
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first
above written.
"OWNER"
ail �NT'
By: ��� '7vM---
Its: C J '7&+
"ARTIST"
(Name of Artist Here)
"CITY"
CITY OF PALM SPRINGS,
a municipal corporation
ATTEST:
By: By:
City Clerk City Manager
APPROVED AS TO FORM:
By:
Q\\G
7 \c
I
Page 10 of 2
1003/029128303.02
BILL OF SALE
FOR VALUE RECEIVE , the undersigned
9 a
of ✓ ,$' hereby sells d transfers
unto o- air, �J a � �P of 11/J—
(buyer) and its successors and assigns forever, the following described
goods and chattels: ( q
Seller warrants and represents that he/she has good title to said
property, full authority to sell and transfer same and that said goods
and chattels are being sold free and clear of all liens, encumbrances,
liabilities and adverse claims, of every nature and description.
Seller further warrants that it shall fully defend, protect, indemnify and
save harmless the Buyer and its lawful successors and assigns from any
and all adverse claim that may be made by any party against said
goods.
It is provided, however, that Seller disclaims any implied warranty of
condition, merchantability or fitness for a particular purpose. Said
goods being their present condition "as is" and "where is."
Signed this . _ day of 2004.
In the presence
Witness
I
eller ,
6 tf�
MINUTEORDER /G �
APPROVAL OF AGREEMENT FOR PLACEMENT
OF ARTWORK ON PRIVATE PROPERTY AND
GRANT OF EASEMENT BETWEEN THE CITY OF
PALM SPRINGS AND THE AGUA CALIENTE
DEVELOPMENT AUTHORITY (ACDA), AND
REIMBURSEMENT OF THE ART FEE IN THE
AMOUNT OF $9,300.00.
1 HEREBY CERTIFY that the Minute Order approval of Agreement for Placement of Artwork on
Private Property and Grant of Easement between the City of Palm Springs and the Agua
Caliente Development Authority(ACDA), and reimbursement of the art fee in the amount of
$9,300.00 was adopted by the City Council of the City of Palm Springs, California, in a meeting
thereof held on the 19T" day of January, 2005.
James Thompson, City Clerk
1��,1