HomeMy WebLinkAbout6/4/2008 - STAFF REPORTS - 5.A. O4p PAM S, 4
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CITY COUNCIL STAFF REPORT
DATE: June 4, 2008 NEW BUSINESS
SUBJECT: APPROVAL OF AGREEMENT FOR PURCHASE AND SALE OF PUBLIC
ARTWORK, ENTITLED "RED ECHO", BETWEEN THE CITY OF PALM
SPRINGS AND KONSTANTIN DIMOPOULOS FOR $44,790 AND
APPROVAL OF AMENDMENT NO. 5 TO AGREEMENT FOR
PLACEMENT AND REIMBURSEMENT OF PUBLIC ART WITH PALM
SPRINGS CLASSIC, LLC (AGREEMENT NO. A5101) AND APPROVAL
OF PLACEMENT OF ARTWORK IN THE MEDIAN LOCATED AT SOUTH
PALM CANYON DRIVE AND INDIAN CANYON DRIVE
FROM: David H. Ready, City Manager
BY: Community & Economic Development
SUMMARY
These three actions approve the acquisition of the sculpture "Red Echo" from artist
Konstantin Dimopoulos and the placement of the artwork in the median at South Palm
Canyon Drive and Indian Canyon Drive.
The first agreement is the Purchase and Sale of the artwork "Red Echo". The second is
an amendment with Palm Springs Classic, LLC (Lennar/Empire Communities) removing
the artwork from the agreement (A5101). Palm Springs Classic, LLC, Owner of the
Escena Project, originally proposed purchasing the artwork for the project, and to date
has paid the artist $44,790.
The third action is the approval of the placement of the artwork at the median located at
South Palm Canyon Drive and South Indian Canyon Drive.
RECOMMENDATION:
1. Approve the Agreement for Purchase and Sale of Public Artwork between the
City of Palm Springs and Konstantin Dimopoulos for$44,790.
2. Approve Amendment No. 5 to Agreement No. A5101 with Palm Springs Classic,
LLC to not install the artwork "Red Echo", reducing the total approved
reimbursement amount to $306,800.
City Council Staff Report
June 4, 2008--Page 2
Agreement for Purchase and Sale of Public Artwork, "Red Echo', Amendment NO. 5 to Agreement NO.
A5101 Placement and Reimbursement of Public Art with Palm Springs Classic, LLC and placement of
sculpture at South Palm Canyon Drive and Indian Canyon Drive
3. Approve the placement of the artwork "Red Echo" at the median island of South
Palm Canyon Drive and South Indian Canyon Drive.
4. Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
The Council approved the Agreement for Placement and Reimbursement of Public Art
with Palm Springs Classic on May 18, 2005. The agreement provides for Palm Springs
Classic, LLC (Lennar/Empire Communities), Owner of the Escena Project to provide
public art at the major entrances and in other publicly accessible areas within the
Escena Community commencing with the on-site improvement and landscaping phase,
rather than later as homes are built. As part of the original agreement, Council
approved three works of art valued at $197,550, The Owner then sought and received
Council approval for three additional works of art valued at $209,500, bringing the total
approved reimbursement to $407,050. However, the additional $209,500 included the
sculpture Art Trees by John Oleinik, a cluster of five trees varying in height from 17' to
23', at a cost of$100,250.
Palm Springs Classic, LLC subsequently learned that they would be unable to install the
Art Trees because the artist had encountered a scheduling conflict. 'Red Echo" by
Konstantin Dimopoulos was approved on February 21, 2007 to replace Art Trees. This
is a kinetic sculpture created with polyurethane resin composite rods of varying height.
The sculpture is fabricated in vibrant colors of red and orange which are embedded in
the individual rods of polyurethane resin reinforced by glass fibers, steel mesh and
concrete. The rods range in height from 11.5 — 23 feet is a total of 6 feet wide and will
be placed on an 8x8 foot base. The cost of the sculpture is $118,800.
In December 2007 the Escena project was put on hold while Palm Springs Classic, LLC
went through reorganization. Prior to this time a 50% deposit of $44,790 had been paid
to the artist for the acquisition of "Red Echo". When reorganization of the company
occurred the artist was informed that the sculpture, "Red Echo", would no longer be
needed at the Escena site. The Artist contacted City staff and inquired if the City would
be interested in obtaining the sculpture for the remaining balance of $44,790 plus
shipping and installation. The shipping and installation costs include: marine insurance
during transport, duties and port fees, transportation of the artwork from the Port of Los
Angeles to Palm Springs, crane rental, lighting fixtures and installation, landscaping
around the base of the sculpture and artist travel and accommodations. The estimated
cost of these items is approximately $16,000. The City has received confirmation from
Lennar that they are willing to forego any and all ownership, rights and obligations to the
artist and not seek any Public Art reimbursement fees from the City for the sculpture
"Red Echo".
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City Council Staff Report
June 4, 2008--Page 3
Agreement for Purchase and Sale of Public Artwork, "Red Echo', Amendment NO. 5 to Agreement NO.
A5101 Placement and Reimbursement of Public Art with Palm Springs Classic, LLC and placement of
sculpture at South Palm Canyon Drive and Indian Canyon Drive
The artwork meets the "Criteria for Selection" outlined in Section, 3-36.090 of the Public
Arts Ordinance as to quality, style, environment, and permanence, elements of design
and diversity. The suggested site location for the sculpture `Red Echo"is in accordance
with the criteria set forth in the Public Arts Ordinance No. 1479 Chapter 3.37 under
Section 3.37080 (a) Art Site Acceptability.
FISCAL IMPACT-,
There will be no fiscal impact to the City's General Fund- The purchase will be made
from the Public Arts Fund. The current fund balance in the Public Art Fund is $450,315.
Jennifer enning Join Ra mo 'd, irectcr of Community
Arts and Special Projects Coordinator and�i=eBnomi velopmpilt
—'
David H. Ready, Ci ager ' Thomas J. Wil n, Assistant City
Manager
Attachments:
Agreement For Purchase and Sale of Public Artwork
Amendment No. 5 Agreement A5101 for Reimbursement of Public Art
0006H
AGREEMENT FOR PURCHASE AND SALE OF PUBLIC ARTWORK
THIS AGREEMENT FOR PURCHASE AND SALE OF PUBLIC ART WORK
("Agreement") is entered into this day of 2008, by and between the CITY OF
PALM SPRINGS, a municipal corporation ("City") and Konstantin Dimopoulos ("Artist').
RECITALS
Pursuant to Municipal Ordinance No. 1479, the City established the Art in Public Places
Program ("Program").
WHEREAS, Palm Springs Classic, LLC 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, Palm Springs Classic, LLC 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, Palm Springs Classic, LLC 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
WHEREAS, on February 21, 2007 Palm Springs Classic, LLC received approval to
place the sculpture "Red Echo", valued at $118,800, at the Gene Autry South entrance,
bringing the total approved reimbursement to $425,600; and
WHEREAS, Palm Springs Classic, LLC no longer desires to purchase or place the
sculpture 'Red Echo' and is willing to relinquish any and all ownership, rights and
obligations to the artist and not seek any Public Art reimbursement from the City for the
sculpture, reducing the total approved reimbursement amount to $306,800; and
WHEREAS,the Artist submitted a proposal to the City forthe sale and installation of
an art piece referred to herein as "Red Echo" ("Artwork")- The Artwork is offered for sale to
the City. 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.
WHEREAS, 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").
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WHEREAS, consistent with the objectives of the Commission, and in furtherance of
the Program, City desires to purchase from Artist, and Artist desires to sell to City, artwork
described in the Proposal.
NOW, THEREFORE, City and Artist, for the consideration and under the conditions
hereinafter set forth, and pursuant to the authority, terms and conditions set forth in
Municipal Ordinance No. 1479, agree as follows:
1. Scope of Services.
1.1 Fabrication and Completion of the Artwork. 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 the City. In addition to the requirements described
in Exhibit "A", Artist shall create, transport, to the said port of entry and install the
Artwork at a site chosen by the City 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.
1.2 City's Installation and Transportation Costs. City shall bear all
installation and transportation costs as it pertains to the Artwork described in Exhibit
"A" and site as described in Exhibit "B", relating to any landscaping alterations,
lighting enhancements, and concrete materials, as the City reasonably determines
is necessary. City shall bear the costs to have the artwork transported from a
designated port of entry to the installation site.
1.3 Consultations and Deviations from Proposal. The Parties agree to
cooperate and consult each other during installation of the Artwork to assure
compliance with the specifications in the Proposal. Artist will present any proposed
installation design changes to the City for its approval and acceptance. The City
shall have sole discretion to approve and accept any such installation design
changes.
1 A Modifications to Installation. The City shall have the right, before
acceptance of the Artwork as defined in Exhibit "D' to request modifications to the
installation of the Artwork. Should such modifications result in an increase in cost to
Artist, full documentation of such costs shall be submitted to the City in writing and
subject to approval by the City. Upon approval, such increased costs shall be paid
to Artist prior to the date of installation, in addition to the fee to be paid to Artist
pursuant to Section 4 below. In the event the modifications result in a reduction of
costs to Artist, the fees owed to Artist pursuant to Section 2 below outlined in Exhibit
"C" shall be reduced by a like amount. Except as expressly provided in this
Agreement, City shall not intentionally damage, alter, modify or change the
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Sculpture, without the prior written consent of Artist, except in such cases where
damage results from an emergency or as set forth in Section 6.2 below.
1.5 City's Removal or Transfer of Artwork. City may remove or transfer
the Artwork to another location, provided, however, that the Artwork is not
destroyed, mutilated, or modified, as those terms are used in 17 U.S.C. §106A, and
so long as the Artwork can be described as created by the Artist.
2. Commencement of Installation of Artwork. Artist shall commence installation
of the Artwork upon the receipt of a written "Notice to Proceed"from the City. 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 City may permit Artist to borrow such items as needed for the
installation of the Artwork. City agrees not to reuse such studies, drawings, and models for
the purpose of constructing a full-sized duplicate of the Artwork. City acknowledges and
agrees that Artist is the exclusive intellectual property right owner of any and all designs,
drawings, models and artwork created by Artist pursuant to this Agreement.
4. Fee and Interim Payments. As consideration for the Artwork and all services
by Artist hereunder, City shall pay Artist the fees set forth on the attached Exhibit "D" in
accordance with the time frames provided therein ("Fee Schedule").
THE MAXIMUM AMOUNT OF CITY'S OBLIGATION UNDER THIS AGREEMENT
IS THE AMOUNT SPECIFIED UNDER THIS SECTION 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 Rights; City's Ownership Rights.
5.1 Alterations. The City, having expended considerable public funds to
commission the Artwork, and pursuant to its governmental and proprietary
responsibilities, intends to display the Artwork at the Site as 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 alter the Artwork in City's solejudgment.
For example, City may alter the Artwork to eliminate hazard, to comply with the
Americans with Disabilities Act (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
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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
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 goad 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
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which comprise the Artwork, or their installation, which, either alone or in
combination, result in the tendency of the Artwork, or their installation, to
deteriorate.
6.2 Public Safety. City and Artist shall cooperate to ensure that the
Artwork, or the installation, incorporate no feature which is a danger to the public
such as sharp edges or points. The City shall review the Artwork and installation
plans and shall request any modification relative to public safety priorto installation.
Any modifications requested by the City shall be governed pursuant to Section 1.3
above. Should hazards in relation to the apparent after installation, City shall have
the right to make adjustments and modifications thereto to eliminate such hazards.
Artist agrees to cooperate in making adjustments to the site or pedestal or display of
the Artwork, if necessary, to eliminate other hazards which become apparent within
one(1)year of the date the Artwork is finally accepted by City. City shall solely bear
the cost of any such modifications.
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. Fxcuse or Suspension of Contractual Obligations; Force Majeure, The time
period(s)specified in the Proposal for performance of the services rendered pursuant to
this Agreement shall be extended because of any delays due to unforeseeable causes
beyond the control and without the fault or negligence of Artist, including, but not
restricted to, acts of God or of the public enemy, unusually severe weather, fires, riots,
strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency,
including the City, if Artist, within fifteen (15)days of the commencement of such delay,
notifies the City in writing of the causes of the delay.
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
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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
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 Cit . 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
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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 Liability Insurance. A policy of
comprehensive general liability insurance written on a per occurrence basis in an
amount not less than ONE MILLION DOLLARS ($1,000,000)combined single limit.
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 or TWO HUNDRED FIFTY THOUSAND DOLLARS
($250,000.00) per person and FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) per occurrence and property damage liability limits of ONE
HUNDRED THOUSAND DOLLARS ($100,000.00) per occurrence and TWO
HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, (ii)
combined single limit liability of FIVE HUNDRED THOUSAND DOLLARS
($500,000.00), or (iii) limits as set by the City Risk Manager. Said policy shall
include coverage for owned, non-owned, leased and hired cars.
All of the above policies of insurance shall be primary insurance and shall name
City, its officers, employees and agents as additional insureds. The insurer shall waive all
rights of subrogation and contribution it may have against City, its officers, representatives,
employees and agents and their respective insurers. All of said policies of insurance shall
provide that said insurance may not be amended or canceled without providing thirty(30)
days prior written notice by registered mail to City. In the event any of said policies of
insurance are canceled, Artist shall, prior to the cancellation date, submit new evidence of
insurance in conformance with this Section to the City. No work or services under this
Agreement shall commence until Artist has provided City with Certificates of Insurance or
appropriate insurance binders evidencing the above insurance coverage's and said
Certificates of Insurance or binders are approved by City.
The policies of insurance required by this Agreement shall be satisfactory only if
issued by companies qualified to do business in California, rated "A" or better in the most
recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and
only if they are of a financial category Class VII or better, unless such requirements are
waived by the City Risk Manager due to unique circumstances.
11. Intellectual Property and Publicity Rights
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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:
112.1 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 or three-dimensional reproductions. City may use such
reproductions for any purpose, including advertising, educational, and
promotional materials, brochures, books, flyers, postcards, print, broadcast,
filmy 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 Re uests. 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.
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11.2.4 Title to Work Product. Without limiting the generality of
the foregoing, title to all drawings, plans, ideas, concepts, specifications,
models, or othertangible work product produced bythe Artist pursuant to this
Agreement shall become the property of the City when produced. The City
shall own the worldwide right, title and interest in such work product. Artist
shall deliver all such original work product to the City upon the completion or
sooner termination of the Artist services underthis Agreement but may retain
copies thereof for its permanent records so long as the same are not used
without the City's prior express written consent.
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 City of Palm Springs, CA." 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
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 similarto
the environment in which the Artwork is to be displayed at the Site. This warranty
shall continue in effect for a period consisting of the life of Artist plus 70 years or for
the duration of the Artwork's copyright protected status, whichever is longer, and
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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 Royalty. If City sells the Artwork as a fixture to real property,
and if the resale value of the Artwork is not itemized separately from the value ofthe
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 City for its registration files.
13. Repair and Restoration. It is the current policy of the City to consult
with Artist regarding repairs and restoration which are undertaken during Artist's lifetime
when that is practical. To facilitate consultation, Artist will, to the extent feasible, notify the
City of any change in his professional address.
14. Reputation,
14.1 City's Commitment. The City agrees that it will not use the Artwork or
Artist's name in a way which reflects discredit on the Artwork or on the name of
Artist or on the reputation of Artist.
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 Assignment or Transfer. The personal skill, judgment and
creativity of Artist are essential elements of this Agreement. Therefore, Artist shall
not voluntarily or involuntarily assign, convey, subcontract, hypothecate, encumber
or otherwise transfer any portion of this Agreement or any of the services to be
performed hereunder without the express written consent of City, which consent
may be withheld in City's sole and absolute discretion. In the event of such
unapproved transfer, including any bankruptcy proceeding, this Agreement shall be
void.
15. Artist as Independent Contractor.
10
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 The City may require Artist to make such revisions to the Proposal as
are necessary for the installation of the Artwork to comply with applicable statutes,
ordinances or regulations governing the services of Artist hereunder. Artist
acknowledges (i) that Labor Code Section 1771 may require the payment of
prevailing wages and (ii)the Public Contracts Code may require that certain aspects
of the installation of the Artwork be publicly bid. Upon request of City, Artist shall
make such revisions to the installation of the Artwork and/or supply data to City as is
necessary for the installation of the Artwork to comply with the Labor Code or Public
Contracts Code; provided, however, that any such changes that increase Artist
costs to complete the installation shall be paid to Artist in advance of the installation
of the Artwork.
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 Against Discrimination. Artist covenants that, by and for itself, its
heirs, executors, assigns, and all persons claiming under or through them, that there shall
be no discrimination against or segregation of, any person or group of persons on account
of race, color, creed, religion, sex, marital status, national origin, or ancestry in the
performance of this Agreement. Artist shall take affirmative action to insure that applicants
are employed and that employees are treated during employment without regard to their
race, color, creed, religion, sex, marital status, national origin, or ancestry.
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
11
Agreement.
19. Governing Law. This Agreement and all matters pertaining thereto shall be
construed according to the laws of the State of California.
20. Licenses, Permits and Fees. Any licenses, permits, and approvals required
by law for installation of the Artwork on City property shall be obtained by the City at City's
sole cost and expense.
21. Further Responsibilities of the Parties. Both parties agree to use reasonable
care and diligence to perform their respective obligations under this Agreement. Both
parties agree to act in good faith to execute all instruments, prepare all documents and
take all actions as may be reasonably necessary to cant' out the purposes of this
Agreement. Unless hereafter specified, neither party shall be responsible for the services
of the other.
22, Cam. The City Manager, or his designee, a Contract Officer of the City shall
be the City's designated representative with respect to this Agreement. It shall be Artist
responsibility to assure that the City is kept informed of the progress of Artist services
hereunder and Artist shall refer any decision which must be made by City to the City
Manager, or his designee. Unless otherwise specified herein, any approval of City required
hereunder shall mean the approval of the City Manager, or his designee. Except as
otherwise directed by the City Council, the City Manager, or his designee 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.
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: Konstantin Dimopoulos
14 Parkdale Avenue
Balwyn, 3103
Melbourne, VIC, AUSTRALIA
To City: CITY OF PALM SPRINGS
David H. Ready, Esq., Ph.D., City Manager
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Phone: 760.322-8350
Fax: 760.323-8207
david.ready( .naImsprinas-ca.aov
12
With Copy to: Douglas C. Holland, Esq., City Attorney
Woodruff Spradlin & Smart
555 Anton Boulevard, Suite 1200
Costa Mesa, CA 92626
Phone: 714.415.1042
Fax: 714.415.1142
dholland,awss-law.com
With Copy to: CITY OF PALM SPRINGS
Jennifer Henning, Public Art Coordinator
3200 E. Tahquit7 Canyon Way
Palm Springs, CA 92262
Phone: 760.778-8408
Fax: 760.322-8325
Jennifer-henning(d),palmsprinas-ca.aov
A change in the designation of the person or address to which submittals, requests, notices
or reports shall be delivered is effective when the other party has received notice of the
change by certified mail or by facsimile when followed by a return facsimile confirming
receipt.
24. Execution in Counterpart. This Agreement may be executed in several
counterparts, and all so executed shall constitute one agreement binding on all parties
hereto, notwithstanding that all parties are not signatories to the original on the same
counterpart.
13
d( 90119
IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first above written-
"ARTIST"
a :
By:
Its:
"CITY"
CITY OF PALM SPRINGS,
a municipal corporation
ATTEST:
By: By:
City Clerk City Manager
APPROVED AS TO FORM:
City Attorney
14
Of GOO 17
EXHIBIT "A"
Artwork Specifications and Instructions
The Artist proposal and specifications for the artwork titled "Red Echo" is as follows:
General Description: The Artwork was fabricated by the artist, Konstantin Dimopoulos, at
his studio located in Melbourne, Australia.
The Artwork is a kinetic sculpture created with polyurethane resin composite rods of
varying height. The sculpture is fabricated in colors of red and orange which are
embedded in the individual rods of polyurethane resin reinforced by glass fibers, steel
mesh and concrete. The rods are arranged to look like a stand of reeds. The length of the
rods ranges from 11.5 to 23 feet, and the sculpture is 6 feet wide at the base and will be
anchored in an 8 foot by 8 foot footing. Artist will fabricate a precast concrete base with
stainless steel voids into which the sculptural rods will be embedded.
Maintenance: The City will assume maintenance responsibility once the Artwork is
installed. The sculpture will need to be washed down 2 to 4 times per year using a regular
water spray. The rods are tissue coated and in a temperate environment can last 10 to 12
years before recoating with a clear UV-resistant polyurethane resin. However, in harsh
environments such as Palm Springs an initial recoating may be required after no more than
4 to 5 years. The Artist recommends that the rods in the sculpture be recoated no later
than 4 years after installation after which the rods are unlikely to need another coating of
resin for 10 more years. The resin will be provided by the Artist, who will also provide the
specifications for the resin to the City upon installation.
One of a Kind: The sculpture is unique and will not be reproduced. The Artist has
produced a maquette which will be given to the City of Palm Springs.
Costs: The$44,790 cost includes all materials to fabricate the sculpture and delivery from
Melbourne, Australia to the Port of Los Angeles.
City Responsibility: The City is responsible for payment of all associated costs for marine
insurance during transport from Australia to the Port of Los Angeles, duties and port fees at
the port of entry, transportation of artwork from the Port of Los Angeles to Palm Springs,
crane rental, lighting fixtures and installation, landscaping at the site, artist travel and
accommodations.
Timeline: The sculpture will be shipped and installed after the execution of this Agreement
by all parties.
15
0000�i�
EXHIBIT "C"
(SCHEDULE OF PERFORMANCE)
The artist shall begin shipment of the sculpture within 15 days afterthe full execution of this
Agreement.
The finished sculpture will be delivered to the Port of Los Angeles within six (6) months
after the execution of this Agreement.
Artist shall furnish to the City, within 30 days after the execution of this Agreement, a
schedule for installation of the sculpture and estimated date of delivery to the Port of Los
Angeles.
Artist shall furnish to the City, every 30 days after the shipment of the sculpture, progress
reports of the shipment and the estimated date of arrival at the Port of Los Angeles.
18
0000 ?It
EXHIBIT "D"
(FEE SCHEDULE)
Payment for the 'Red Echo" Sculpture shall be as follows:
First payment in the amount of $11,198 shall be payable upon execution of this
Agreement;
Second payment in the amount of $33,592 shall be payable within 30 days after the
complete installation of the Sculpture.
19
000022
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.
20
000023
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
, 2008 between Buyer and Seller(the"Purchase Agreement")Seller
does hereby sell, assign, transfer and deliver unto Buyer, and its successors and assigns,
that certain work created by Seller entitled
"(the "Property"), including all right, title and interest therein, and shared copyrights thereto.
Seller does hereby represent and warrant to Buyer that Seller is the lawful owner of
such personal property, and that Seller had good right to sell the same as aforesaid and
will warrant and defend the title thereto unto buyer, its successors, subsidiaries, parent
corporations, affiliates and loan participant.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of the date first
above written.
Artist
(Tax.I.D. Number)
By:
Signature
CITY OF PALM SPRINGS
a municipal corporation
By:
City Manager
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY:
21
QU0'022
FIFTH AMENDMENT
AGREEMENT NO. A5101
PLACEMENT AND REIMBURSEMENT OF PUBLIC ART BY AND BETWEEN
THE CITY OF PALM SPRINGS AND PALM SPRINGS CLASSIC, LLC
THE FIFTH 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, not to install the previously approved sculpture Red Echo
by Konstantin Dimopoulos, thereby reducing the total approved reimbursement
amount to $306,800, is made and entered into this 4th day of June 2008, thereby
amending that certain agreement dated May 18, 2005 and amended on
September 7, 2005, June 21, 2006, February 21, 2007 and April 4, 2007,
Except as expressly amended herein, all other 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.
OWNER: Palm Springs Classic,
LLC
Managing Partner
Managing Partner
CITY OF PALM SPRINGS,
a municipal corporation
City Manager
ATTEST:
By:
City Clerk
REVIEWED AND APPROVED BY:
City Attorney
aooa��
EXHIBIT "A°
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16
EXHIBIT "B"
(SITE)
- r '1, rypp"a
- ';-r .,,��W,.;." Aar. �'.;,, '•'%�'.,�;�.,C'•i•a',; . � - ,. � � .;�
?riilP�ryjT,��'"i"b�.'��-�4L:.,.1a� ��y.:F:e:9:1"P..e�h�FN:i°�o�•iir"}na}i"it'�uw:�a :,��i�=:.::=',<xt'YP S..�,.:�.Cw1i�':.�`, __..... WA.. ._ ~
Median Island S. Palm Canyon Drive and Indian Canyon Drive
17
000020