HomeMy WebLinkAbout2/20/2008 - STAFF REPORTS - 5.B. �pF p A 4M SA4
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'F°R` City Council Staff Re ort
DATE: February 20, 2008 NEW BUSINESS
SUBJECT: PURCHASE OF PUBLIC ARTWORK FROM BUSCHLEN MOWATT
GALLERIES AND JOHN CLEMENT FOR THE SCULPTURE SQUEEZE
CURRENTLY LOCATED AT 538 NORTH PALM CANYON DRIVE, PALM
CANYON THEATRE.
FROM: David H. Ready, City Manager
BY: Community and Economic Development
SUMMARY
The Public Arts Commission recommends approval of the purchase of artwork entitled
Squeeze by artist John Clement at a price of $56,000. The artwork is currently on loan
to the City and is on display near the entrance of the Palm Canyon Theatre at Frances
Stevens Park. Two other works of art by the same artist are also on loan and on display
at other locations.
RECOMMENDATION:
1. Approve the Agreement for Purchase and Sale of Public Artwork from Buschlen
Mowatt Galleries and John Clement for one steel sculpture titled Squeeze in the
amount of $56,000 by artist John Clement currently located at 538 North Palm
Canyon Drive, Palm Canyon Theatre-
2- Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
On January 3, 2007 the City entered into an eighteen month loan agreement with
Buschlen Mowatt Galleries to exhibit three large-scale steel sculptures, currently on
display at the Palm Canyon Theatre, the Palm Springs Mall and The Courtyard.
At the November 8, 2007 Public Arts meeting Buschlen Mowatt Galleries requested that
the Commission consider purchasing the artwork. The Gallery offered a sale price of
Item 5 . 13 .
City Council Staff Report
(February 20, 2008) -- Page 2
(Purchase Clement Sculpture)
$60,000 for one sculpture or $168,000 ($56,000 each) for all three, which is below the
price of$65,000 each in the original Loan Agreement.
On December 13, 2007 the Public Arts Commission reviewed the November proposal
as well as additional information about the artist including recent work commissioned by
the communities of Cashiers, NC and Delray Beach, FL. The Commission also
discussed the Artist's reputation and recent national recognition he and the City
received in the 2007-2008 Art in America Annual Guide to Galleries, Museums and
Artists. The Commission felt the sculptures would be a significant addition to the City's
public art collection and a prudent investment. While the Commission would like to
consider the purchase of all three sculptures, they deferred that decision until a five year
operating and acquisition strategy could be developed. In order to move forward, a
motion to purchase one sculpture for $60,000 was approved 3-1. A follow-up motion to
purchase the sculpture entitled Squeeze and to relocate the artwork to an alternate site
at a later date was approved 4-0. Since the time of this meeting staff followed up with
the artist and he has agreed to sell Squeeze at the bulk price of $56,000.
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 current site location of the sculpture Squeeze 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 Ajts Fu d_ The current fund balance in the P lic Art Fund is $499,990.
Jennifer nninng John aym d, Director of Community
Arts and Special Projects Coo^ inator and cono i Development
David H. Ready, Cifyg Thomas J.er Wi on, Assistant City
Manager
Attachments:
Agreement For Purchase and Sale of Public Artwork
Press Articles
Agreement For Placement and Loan of Artwork
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"), acting by and through its City
Manager, or his designee, a Contract Officer of the City ("City Manager") and Buschlen
Mowatt Galleries, a Limited Liability Company (the "Gallery") and John Clement (the
"Artist").
RECITALS
A. Pursuant to Municipal Ordinance No. 1479, City established the City and an
Art In Public Places Program ("Program")-
B. Gallery submitted a proposal to the City for the sale and installation of an art
piece referred to herein as Squeeze("Artwork") by John Clement("Artist")- The Artwork is
offered for sale to the City, acting by and through the City Manager, or his designee. The
Proposal, including all relevant specifications, is attached hereto as Exhibit "A" and
incorporated herein by reference. Where the Proposal and the terms of Exhibit"A"conflict,
the terms of Exhibit "A" shall control.
C. The Proposal provides that the Artwork currently installed in a public space
located in Palm Springs more particularly depicted on Exhibit "B" attached hereto (the
"Site").
D. Consistent with the objectives of the City, and in furtherance of the Program,
City desires to purchase from Gallery and Artist, and Gallery and Artist desires to sell to
City, artwork described in the Proposal.
NOW, THEREFORE, City and Gallery, 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 Art Work. Gallery has fabricated or
caused to be fabricated, the Artwork under the personal supervision of the Gallery
and in conformity with the Proposal, procedures and timeline set forth in the
Schedule of Performance (the "Schedule"), attached hereto as Exhibit "C" and
incorporated herein by reference. The Artwork shall not deviate in specifications,
including, but not limited to, size, design or material from the Proposal, unless the
change is approved in writing by motion of the City Manager. In addition to the
requirements described in Exhibit"A", Gallery shall create, transport, and install the
Artwork to the Site (but not in relation to the preparation of the site) at its sole cost
and expense. The Gallery shall install the Artwork with a reasonable standard of
care, giving special consideration to protecting the Artwork from theft and/or
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breakage.
1.2 City's Installation Costs. City shall bear, in its sole and absolute
discretion, any installation costs as it pertains to the site as described in Exhibit"B",
relating to any landscaping alterations, lighting enhancements, and concrete
materials.
1.3 Consultations and Deviations from Proposal. The Parties agree to
cooperate and consult each other during installation of the Artwork to assure
compliance with the specifications in the Proposal. Gallery will present any
proposed installation design changes to the City for its approval and acceptance.
The City shall have sole discretion to approve and accept any such installation
design changes.
1.4 Modifications to Installation. The City shall have the right, before
acceptance of the Artwork as defined in Exhibit "A", to request reasonable
modifications to the installation of the Artwork. Should such modifications result in
an increase in cost to Gallery, full documentation of such costs shall be submitted to
the City in writing and subject to approval by the City Manager. Upon approval,
such increased costs shall be paid to Gallery prior to the date of installation, in
addition to the fee to be paid to Gallery pursuant to Section 4 below. In the event
the modifications result in a reduction of costs to Gallery, the fees owed to Gallery
pursuant to Section 2 below outlined in Exhibit "C" shall be reduced by a like
amount_ Except as expressly provided in this Agreement, the City shall not
intentionally damage, alter, modify or change the sculpture, without the priorwritten
consent of Gallery, except in such cases where damage results from an emergency
or as set forth in Section 62 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. Gallery 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 Gallery to City relative to this Agreement shall become
the property of City. The City may permit Gallery or 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 the Artist is the exclusive intellectual property right owner of
any and all designs, drawings, models and artwork created by Artist pursuant to this
Agreement.
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4. Fee and Interim Payments. As consideration for the Artwork and all services
by Gallery hereunder, City shall pay Gallery the fees set forth on the attached Exhibit"D" in
accordance with the time frames provided therein ("Fee Schedule"). If at any time the City
sells, transfers or assigns its rights in the Artwork pursuant to this Agreement before all its
obligations are met under the Fee Schedule, all remaining fees and payments shall
become immediately payable forthwith.
THE MAXIMUM AMOUNT OF CITY'S OBLIGATION UNDER THIS AGREEMENT
IS THE AMOUNT SPECIFIED UNDER THIS SECTION 4 OF THIS AGREEMENT.
GALLERY 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 EXCLUDING ALL APPLICABLE
STATE OR LOCAL TAXES.
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 created by the 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 sole judgment, acting
reasonably. For example, City may alter the Artwork to eliminate hazard, to comply
with the ADA, to otherwise aid City in the management of its property and affairs, or
through neglect or accident. If, during or after the term of this Agreement, City finds
the Site to be inappropriate, City has the right to cause the Artwork to be installed at
an alternate location that City chooses in its sole reasonable discretion.
5.2 Waiver. With respect to the Artwork produced under this Agreement,
Artist waives any and all claims, arising at any time and under any circumstances,
against City, its officers, agents, employees, successors and assigns, arising under
the federal Visual Gallerys 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 goad 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
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charge by Artist unless otherwise specifically agreed in writing. If the Artwork is
altered and City intends to maintain the Artwork on display, City shall make a
reasonable good faith effort to engage Artist in the restoration of the Artwork and to
compensate Artist for Artist's time and efforts at fair market value,which may be the
subject of a future agreement between Artist and City. However, City has no
obligation under this Agreement to restore the Artwork to its original condition or to
compensate Artist for any restoration work- If Artist fails or refuses to negotiate with
City in good faith with respect to any restoration, City may contract with any other
qualified art conservator or Artist for such restoration.
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).
5.5 Limitation of Liability- Upon execution of this agreement, the City
hereby irrevocably releases and discharges the Artist from any and all liability of any
kind, including but not limited to any damages or costs for any injuries however
caused, that arise now or in the future in relation to the artwork.
6. Gallery's WarrantiesNVaivers.
6-1 Defects in Materials or Workmanship. Gallery warrants that the
Artwork and Gallery services hereunder will be free of defects in workmanship or
materials, and that Gallery will, at Gallery's own expense, remedy any defects due
to faulty workmanship or materials appearing during the twelve (12) month period
immediately following completion of the installation of the Artwork. This warranty
includes any workmanship or materials which cause the Artwork, or the installation,
to deteriorate over said twelve (12) month period in a manner inconsistent with the
design, the approved plans and specifications or as would otherwise be expected
from products made of similar materials, or from any quality within the materials
which comprise the Artwork, or their installation, which, either alone or in
combination, result in the tendency of the Artwork, or their installation, to
deteriorate.
62 Public Safety. City and Gallery shall cooperate to insure that the
Artwork, or the installation, incorporate no feature which is a danger to the public
such as sharp edges or points. The 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.
Gallery 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.
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6.3 Title. Gallery warrants that the Artwork will be installed and transferred
to City free and clear of any liens, claims, or other encumbrances of any type,
exclusive of intellectual property rights of Artist.
7. Excuse or Suspension of Contractual 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
Gallery, 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 Gallery, 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
arbitration, and such compliance shall not be a waiver of any parry'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
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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 Gallery. City shall have the right to terminate
this Agreement for cause upon any material breach by Gallery of the obligations
imposed upon Gallery 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 Gallery shall be liable for the
reasonable costs City incurs in completing the same. City may withhold payments
to Gallery for the purpose of off set or partial payment of the amounts owed City as
previously stated.
9.7 Termination for Default of Ci Gallery shall have the right to terminate
this Agreement for cause upon any material breach by City of the obligations
imposed upon City under this Agreement, subject to the requirements of Section 9.1
above.
9.8 Attorneys' Fees. If either party to this Agreement is required to initiate
or defend or is made a party to any action or proceeding in any way connected with
this Agreement, the prevailing party in such action or proceeding, in addition to any
other relief which may be granted, whether legal or equitable, shall be entitled to
reasonable attorneys' fees. Attorneys'fees shall include attorneys'fees on appeal,
and in addition, a party entitled to attorneys' fees shall be entitled to all other
reasonable costs for investigating such action,taking depositions and discovery and
all other necessary costs which are incurred in such arbitration and on appeal.
10. Insurance. Gallery 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. Gallery 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)
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bodily injury liability limits of TWO HUNDRED FIFTY THOUSAND DOLLARS
($250,000.00) per person and FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) per occurrence and property damage liability limits of ONE
HUNDRED THOUSAND DOLLARS ($100,000.00) per occurrence and TWO
HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, (ii)
combined single limit liability of FIVE HUNDRED THOUSAND DOLLARS
($500,000.00), or (iii) limits as set by the City Risk Manager. Said policy shall
include coverage for owned, non-owned, leased and hired cars.
All of the above policies of insurance shall be primary insurance and shall name
City, its officers, employees and agents as additional insureds. The insurer shall waive all
rights of subrogation and contribution it may have against City, its officers, representatives,
employees and agents and their respective insurers. All of said policies of insurance shall
provide that said insurance may not be amended or canceled without providing thirty (30)
days prior written notice by registered mail to City. In the event any of said policies of
insurance are canceled, Gallery 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 Gallery has provided City with Certificates of Insurance or
appropriate insurance binders evidencing the above insurance coverages and said
Certificates of Insurance or binders are approved by City.
The policies of insurance required by this Agreement shall be satisfactory only if
issued by companies qualified to do business in California, rated "A" or better in the most
recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and
only if they are of a financial category Class VII or better, unless such requirements are
waived by the City Risk Manager due to unique circumstances.
11. Intellectual Property and Publicity Rights
11.1. General Except as noted in this Agreement, the City hereby
affirms that the Gallery is not the Artist and all copyrights in all original works of
authorship produced under this Agreement remain at all times with the Artist. The
City affirms that by executing this Agreement, the Gallery is not making any
representation orwarranties regarding the intellectual property rights relating to the
Artwork or the Artist. For further clarification, all rights and obligations under this
section 11 are not applicable to the Gallery.
11.2. Copyright. Artist's copyright shall not extend to predominantly
utilitarian aspects of the work, such as landscaping elements, furnishings, or other
similar objects. 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.
11.3 City's Intellectual Property License. Except as provided in this Section
11.3, Artist makes no representations or warranties with regard to the City's license,
if any, to all rights worldwide with respect to the Artwork and any and all intellectual
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property or other property of any nature produced, created, or suggested by the
Artist during the term of this Agreement including such license rights including, but
not limited to, the following with respect to the Artwork and any original works of
authorship created under this Agreement, whether in whole or in part, in all media
(including electronic and digital) throughout the universe.
11.3.1 Implementation, Use, and DisplaV. The City's use and
display of all graphic representations or models of the Artwork, as well as the
Artwork.
11.3.2 Reproduction and Distribution. The City is granted a
license to make and distribute, and authorize the making, display, and
distribution of, photographs and any other two dimensional reproductions.
The Artist makes no representation or warranty with regard to the City's use
of such reproductions for any purpose, including advertising, educational,
and promotional materials, brochures, books, flyers, postcards, print,
broadcast, film, electronic and multimedia publicity, gifts for City benefactors,
documentation of City's Civic Art Collection, and catalogues or similar
publications. The City shall ensure that such reproductions are made in a
professional and tasteful manner, in the sole and reasonable udgment 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.
11.3.3 Public Records Reguests. Any documents provided by
Artist to City are public records and City may authorize third parties to review
and reproduce such documents pursuant to public records laws.
11.3.4 Title to Work Product. The Artist makes no
representation or warranty with regard to the title to all drawings, plans,
ideas, concepts, specifications, models, or other tangible work product
produced by the Artist becoming the property of the City when produced.
The Artist makes no representation or warranty with regard to the City's
ownership of the worldwide right, title and interest in such work product.
11.4 Third Party Infringement. The City and Artist are not responsible for
any third party infringement of Artist's copyright and shall not be responsible for
protecting the intellectual property rights of Artist.
11.5 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 Public Arts Commission". City shall credit
Artist for the Artwork upon publication of any-two orthree dimensional reproductions
of the Artwork.
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11.6 PublicitV. 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.
11.7 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.
11.8 Unique. Artist warrants that the design of the Artwork as expressed in
the Proposal is an edition of one, and that neither Artist nor Artist's agents will
execute or authorize the Artist or another to execute another work of the same or
substantially similar image, design, dimensions, and materials as the Artwork. Artist
may authorize works that utilize or incorporate various individual art elements that
comprise the Artwork, so long as the work utilizing or incorporating such individual
elements (1)does not consist predominantly of such elements(2) is not the same or
substantially similar in image, design, dimensions and materials as the Artwork, and
(3) is not displayed in an environment that is the same or substantially similar to the
environment in which the Artwork is to be displayed at the Site. This warranty shall
continue in effect for a period consisting of the life of the Artist plus 70 years or for
the duration of the Artwork's copyright protected status, whichever is longer, and
shall be binding on Artist and Artist's heirs and assigns. Recognizing that City has
no adequate remedy at IawforArtist's violation of this warranty,Artist agrees that, in
the event Artist breaches this warranty, City shall be entitled to enjoin Artist's
breach.
11.9 Resale RoyaItV. If City sells the Artwork as a fixture to real property,
and if the resale value of the Artwork is not itemized separately from the value of the
real property, the Parties agree that the resale price of the Artwork shall be
presumed to be less than the purchase price paid by City under this Agreement.
Thus, City has no obligation to pay resale royalties pursuant to California Civil Code
§986 or any other law requiring the payment of resale royalties. If City sells the
Artwork as an individual piece, separate from or itemized as part of a real property
transaction, City shall pay to Artist a resale royalty to the extent required by law,
based upon the sale price of the Artwork.
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 when that is practical. To
facilitate consultation, Artist will, to the extent feasible, notify the City of any change in
business address.
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14. Reputation.
14.1 City's Commitment. The City agrees that it will not use the Artwork,
Gallery or Artist's name in a way which reflects discredit on the Artwork or on the
name of the Gallery or Artist or on the reputation of the Gallery or Artist.
14.2 Gallery and Artist's Commitment. Gallery and Artist agree 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, neither
Gallery nor 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. Gallery and Artist as Independent Contractors.
15.1 Neither City nor any of its employees shall have any control over
the manner, mode or means by which Gallery and Artist, its agents or employees,
perform the services required herein, except as otherwise setforth herein. City shall
have no voice in the selection, discharge, supervision or control of Gallery and
Artist's employees, servants, representatives or agents, or in fixing their number,
compensation or hours of service. Gallery and 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. Gallery and 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 the
Gallery or Artist in its business or otherwise or a joint venture or a member of any
joint enterprise with Gallery or Artist.
15.2 City may require Gallery and 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 Gallery and
Artist hereunder. Gallery and 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, Gallery and 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 Gallery costs to complete the installation shall be
paid to Gallery and Artist in advance of the installation of the Artwork.
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16. Conflict of Interest. No officer, representative or employee of City shall have
any financial interest, direct or indirect, in this Agreement nor shall any such officer,
representative or employee participate in any decision relating to the Agreement which
effects his or her financial interest or the financial interest of any corporation, limited liability
company, partnership or association in which he or she is, directly or indirectly, interested,
in violation of any Federal or California statute or regulation. Gallery and 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. Gallery and 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. Gallery and Artist shall take affirmative action to
insure that applicants are employed and that employees are treated during employment
without regard to their race, color, creed, religion, sex, marital status, national origin, or
ancestry.
18. Integration:Amendments. This Agreement contains all of the agreements of
the parties and cannot be modified, terminated or rescinded, in whole or in part, unless
written and signed by authorized representatives of the parties hereto. No prior oral or
written understanding shall be of any force with respect to those matters covered in this
Agreement.
19. 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. City Manager. The City Manager shall be the City's designated
representative with respect to this Agreement. Unless otherwise specified herein, any
approval of the City required hereunder shall mean the approval of the City Manager.
Except as otherwise directed by the City Council, the City Manager shall have the authority
to give any approvals or consents required hereunder and to otherwise act on behalf of
City in order to carry out the terms of this Agreement.
23. Notices. Any notice which either party may desire to give to the other party
11
31+32 v2
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 Gallery: Buschlen Mowatt Galleries
1445 West Georgia Street
Vancouver, BC, Canada V6G 2T3
To Artist: John Clement
1196 Metropolitan Avenue
Brooklyn, NY 11237
To City: City Manager
City of Palm Springs
P.O. Box 2743
Palm Springs, CA 92263
Copy to: City Attorney
City of Palm Springs
P.O. Box 2743
Palm Springs, CA 92263
A change in the designation of the person or address to which submittals, requests, notices
or reports shall be delivered is effective when the other party has received notice of the
change by certified mail or by facsimile when followed by a return facsimile confirming
receipt.
24. Execution in Counterpart. This Agreement may be executed in several
counterparts, and all so executed shall constitute one agreement binding on all parties
hereto, notwithstanding that all parties are not signatories to the original on the same
counterpart.
12
32532,2
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date
first above written.
Buschlen Mowatt Galleries, a Limited
Liability Company
a :
By:
Its:
John Clement, Corporation
a :
By:
Its:
CITY OF PALM SPRINGS,
a municipal corporation
ATTEST:
By: By:
City Clerk City Manager
APPROVED AS TO FORM:
City Attorney
13
M32 v2
EXHIBIT "A"
(PROPOSAL)
Buschlen Mowatt Galleries and John Clement shall sell one (1) sculpture, entitled
Squeeze by Artist, currently on loan to the City, located at Frances Stevens Park in
front of the Palm Canyon Theatre, 538 North Palm Canyon Drive.
The title and size of the sculpture is as follows:
1. Squeeze (9' x 9' x 12')
Total purchase price for the one (1) sculpture is $56,000.00.
14
=2 v2
EXHIBIT "A"
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John Clement
Squeeze, 2005
108x108x144
EXHIBIT "B"
(THE SITE)
The one (1) sculpture is located at Frances Stevens Park. The sculpture entitled Squeeze
is on display in front of Palm Canyon Theatre, 538 North Palm Canyon Drive.
15
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EXHIBIT "B"
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DESIGN BY: SCALE: SECTION:
PUBLIC ART LOCATION FLIP NTS 10-T4S-R4E
538 N PALM CANYON DRIVE CHECKED BY: DATE SHEET NO.:
12/18/06 1 OF 1
EXHIBIT "C"
(SPECIAL REQUIREMENTS)
The one (1) sculpture is an existing work of art, already transported and installed, at the
respective site therefore the followings Sections are not applicable:
1. Scope of Services
1.1 Fabrication and Completion of the Artwork.
1.2 City's Installation Costs
1.3 Consultations and Deviations from Proposal
1.4 Modifications to Install
2. Commencement of Installation of Artwork
6. Gallery's Warranties/Waivers
6.1 Defects in Materials or Workmanship
62 Public Safety
10. Insurance (The City shall add the artwork to its Insurance Policy)
10.1 Comprehensive General Liability Insurance
102 Workers' Compensation Insurance
10.3 Automotive Insurance
16
32S32 v2
EXHIBIT "D"
(FEE SCHEDULE)
The City shall pay the following payment schedule to the Gallery:
First installment: $56,000 payable within 30-days of date of execution of the
Agreement for Purchase and Sale of Public Artwork
17
aW2�2
EXHIBIT "E"
(BILL OF SALE)
BILL OF SALE AND ASSIGNMENT
THIS BILL OF SALE AND ASSIGNMENT is made as of
from Buschlen Mowatt Galleries and John Clement(Sellers)
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 Squeeze by Artist(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.
Buschlen Mowatt Galleries, John Clement,
a Limited Liability Company Corporation
(Tax.I.D. Number) (Tax.I.D. Number)
By: By:
Signature Signature
CITY OF PALM SPRINGS
a municipal corporation
By:
City Manager
ATTEST:
By.
City Clerk
APPROVED AS TO FORM.
CITY ATTORNEY:
18
32532,2
Press Articles
Art M* America
July 25, 2007
Thank you very much for submitting information about your 2006
public art projects . Enclosed is a set of tear sheets of the
public art section of the Annual Guide, Art in America' s August
issue, where your installation was highlighted.
Please send press releases of permanent or long-term proaects
completed during 2007 to lmiller@brantpub. com, to be considered
for inclusion in next year' s Guide .
Best regards,
Leigh Anne Miller
Art in America
Assistant Editor/
Reviews Coordinator
(212) 941--2864
575 Broadway, New York NY 10012 Tel: (212) 941-2800 Fax: (212) 941-2819
-
_-: ...
Sarah Morris (NYC)y 3 Arturo Herrera (Chicago)
2 Lco bnonen(La Grand,Ore.)
P
°iii ran
JIIPrt
8 Matthew Ritchie (Eugene,Ore.)
10 ,John Clement (Patin Springy)
Laurel Beclanan (Pin:sbu gh) 9 Pavel Kraus(Charlotte)
Jarvis Rockwell (Scntisdale)
16 Maya Lin (Jersey City)
15 Joyce Hsu(San Francisco) V Steve Appleton(Los Angeles)
Sarah Morris 4 Ann Gillen light mg and irugatiun system simulating 9 Pavol Kraus
Robert lbi=..Lever House'slobbyand Linc6yLine.Awall scolphire made of sunlight,moonlight and rain re-create Leuitotm Pour slightly staggered 10-by-
6ouityard ceilingwerepaintedwith a 400 Enearfeetofstainess-steel tubes Seattle's pre-fteeway climate of 1960, 4-foot panels of 2-inch translucent green
fractured,geometric pattern fortwo ands and rods suggesting Imes ofcorrmuniazl inn sited in 1-5 Colonnade Park,a city 21\ glass,at the American Asset Corporation's
halfmonths,a Public Art Fund project. On ared-painted stairwell,at the City commission.
University of New Tories new Graduate Whitehall Corporals Center
Lee Imonen School of Journalism,eomrmssloned 7 Laurel Beckman 10 John Clement
1H'CrScridPlutu Aline ofcedarbeams by CUNY,, Phnndosm.Four round llghtboxes Sgios-6,A9•by9-by-lSfootsteelseulpl'ure,
supports a spiraling tunnel ofsteel rings temporarily installed on Strawberry Way one in a series of three brighl ly painted
inspredbyaNativegmerinanfishingtrap, 5 Sarah Sze illuminate phoros of human and=at world installed downtown(through
located in a student4iou8mg courtyard al BlwPolss.Inspired byurbanfire escapes eyes,commissioned by lire Pittsburgh December 2007),sponsored bythe City of
Eastern Oregon University,a state commission. and a Jackson Pollock paint ing,50 feet of Downtown Partnership, Palm Springs Public Arts Commission
ladderbke blue-painted steel and aluminum
Artum Herrera elementsclin0t thewalis ofagraduate 8 Matthew Ritchie 11 Andrea Blum
Ni9htB0'mL=L/erimgo A 37-fooWong residence hall at NET,a university commission Store Docisis and Life,Labsrhj and Pla.Leaw,A 4,S00-square-foot installs ion
abstract mural inthe Department of Pumil.An outdoor cast-aluminum sculpture of pavihons,tables and seating made of
Homeland Securitys U.S.Citizenship& 6 John BolaH and dune indoor tiglubox murals at the perforated steel and concrete with inset
hnmigmtion Servile building commissioned SenicmA Ci'lmate(Paradle6 Reconsidered). Wayne Morse Courthouse,commissioned lighting,on the edge ofthe University of
bythe U.S.General SamicesAdmvdsuat ion. Four trees and a computer-operated by the U.S.General Services Administration. Pennsylvania campus,commissioned by
6 Annual Guid6200/ Photos: Morale 5601)9 Klrn or nW Lee Inionon Heuem L6611e Scnwlm RgotoOMPhh Inc aeclu„ln Lary RIPPnI Rllcryle Joshua J6lbop Kmue Pavel I(r6u.
01rm6nl John Clemml ROphwell Chile LoomL•H,,,Joyce Hsu L11 Cou0161 Mey6 LJn Swdlo,npplelom Aox Fortran
4
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111114
Gillen (NYC) 6 JohnRoloff (Seattle)
5 Sarah Sze (Boston)
12 Loma Jordan(Seattle)
rea Him(Philadelphia) 13 All=&Ellen Wexler(NYC)
All
hill ......
i Wdua(NYC) 20 Chris Drury(Nashville)
19 Archie Held(Sacramento)
school and Philadelphia's 14 Jarvis Rockwoll University'sVisualArts Building, is Archie Held
evelopmentAuthomy H=A14-frottalipyrarrildsLacked comarassionedbyNCU. PurttenEasixt An18-foot-tallbronze
with over 11,000 actionfigures from and standese-steel fountsm based an
ma Jordan Rockwell's collection,afive-month 17 Steve Appleton Nal naltmerlainwaven baskets and
qoiZflyFavaem and Garden..A 60- installationatthe Seat lsdalo Certerfor FarPTiwiar.A camera hidden in a engraved with designs chosen by local
-long steel dragoody with soaring the Performing Arts,a city cominnission- sculpture photographs people's faces tribal elders,aL.SeCratafflio,City Hall
drought-rezust,ant,landscaping,at and linueuts them Onto glas&disks and Plaza,commissioned by the city's
,Ule Public Utilities'Longfellow 15 Joyce Hsu tamnated panels in a courtyard of Metropolitan Arls Cornaftimlon.
4;funded by SPU's I"for Art Ford Incomplettigatirmorokons.Two SuroYel+Vice,a n=d-usL prujLLt In
laser-oul aluminum sculptures all a Hollywood,commissioned by L.N.'s 20 Chris Drury
an and Ellen Wexler dragonfly and a firefly,insisted on Community Redevelopment Agency. Tic Star Chamber.Over 200 tons of
7bo Large,ThbLesr.A two-pad the fences of Argonne Playground, bmwinne boulders form a spiral pathway
eel in one,chair backs extend a city commission. is Seth Weiner and a 12-foot-fall dome that lumaimrs as
at up and are topped by a 1ti-square- 27ie Fortunate Islands.A tree with a carriers,obscurra,with stones marldrig
canopy,in the other,chairs support 16 Maya Lin video monitors Showing canaries on W seasonal equinoxes and solstices,on the
touL plane 30 inches off the ground, By Definitim,The word uaff'm branches,temporarily installed in a Mends of Vanderbilt Uravoitaty's Dyer r ----
ted on the 1juilgon River at Wes( 50 larguages carvedinto a sunken security booth in Thomas Paine Park, Observatory,commissioned by the school. li ---
,Street,a Hudson River Park TYetat oonot-olA ring,and a lass panel 81rhol a project of the Lower Manhattan P u b I I q Art In 171 e v I o w In I g In I I in
tholKlon. with definitions,at New Jersey CItY OuldWrell Council. featured In it NWrsAmerica.
a3:Gillen.Mtark(3111arr&e George Seuret Roolf John Reutr Blum Pawn rare,jivd.n:Lm.,liad.)Werilera Allan Waxis Art in Amerwit 57
er Seth Wolncq Hold Edward Malden,Dory ON5 Drury
1fJ _ rrex E. it 1.1;3:1 rJ r. -!`J37r.t:•.11J , .i..'r'-.
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AGREEMENT FOR PLACEMENT AND LOAN OF ARTWORK
This AGREEMENT FOR PLACEMENT AND LOAN OF ARTWORK (Agreement) is
entered into as of WYA, Llry l7 �001 by and between the CITY OF PALM SPRINGS,
a municipal corporation (City) arid BUSCHLEN MOWATT FINE ART, LLC (Owner).
RECITALS
A. The City has established a Public Arts Program, which authorizes the
placement of works of art on appropriate private and public property, which
encourages public access, and viewing of the artwork.
B. Under the Public Arts Program, artwork may be loaned to the City and a fee
paid for loan term-
C. Owner desires to loan a work of art and have such work of art placed on public
property or private property under an Agreement for Placement of Public Art or
Private Property in accordance with this Agreement and the City of Palm
Springs Public Arts Program as established by Chapters 2.24 and 3.37 of the
Palm Springs Municipal Code (Public Arts Ordinance)-
NOW, THEREFORE, for good a valuable consideration, the receipt and adequacy of
which is herby acknowledged, the parties herby agree that acceptance of the loan of the
artwork described below of this Agreement is subject to the following conditions:
-- — - ---Cites Representafive fi-he-CV--MaTmgeT oorhts—d-eslgrree,—Co7tn—c -Offi el of the City ("City Manager"), shall be the City's designated representative with respect to this
Agreement. Under the direction of the City Council, the City Manager 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. Loan Fee. City shall pay a loan fee in the total amount of SEVEN THOUSAND SIX
HUNDRED SEVENTY FIVE DOLLARS ($7,675.00), payable within thirty (30) days of
receipt of an invoice by Owner. The fee shall cover all costs of employment of Art
Handler, travel expenses, accommodations, per diem, Administrative fee, miscellaneous
tool expenses and paint related to the placement of the Artwork. Crane rental costs for
relocating the artwork to the designated sites shall be paid by the City. The loan fee shall
be paid from the Public Arts Fund.
3. Loan Term. The loan term shall be eighteen (18) months, with an option by
Owner to remove the pieces after twelve (12) months with a thirty (30) day written notice.
4. The Artwork. The Owner will loan to the City the "Artwork", consisting of three
(3) steel sculptures titled Squeeze, (approximately 108x108x144 inches), Ithiel,
1
(approximately 108x108x96 inches) and Butch, (approximately 120x1O8x96 inches) by
Artist, John Clement as shown in Exhibit "A" (the Artwork).
5. Location and Site Preparation. The artwork shall be located at three locations:
777 East Tahquitz Canyon Way, (Regal Cinemas) at the landscaped area of the
northeast corner of the property; Palm Canyon Theatre, 538 North Palm Canyon Drive on
the grassy area near the front entrance and Palm Springs Mall, 2365 Tahquitz Canyon
Way at the concrete pad area located at the southeast entrance on Farrell Drive, as
shown in Exhibit "B" (the Sites).
6. Right to Purchase. During the duration of the exhibition and prior to removal of the
Artwork as provided in this Agreement, the City of Palm Springs will have the right to
purchase the pieces at a price of$65,000 each. In the case of a third party offer made on
the purchase of the pieces before the City has chosen to purchase, the City of Palm
Springs will be given right of first refusal to match the quoted price in order to keep the
pieces.
7. Sale of Pieces. Buschlen Mowatt Fine Art, LLC will donate 10% of the final
purchase agreement to the Public Arts Fund if one or more of the pieces are sold during
the time of the exhibition in the City of Palm Springs or within ninety (90) days of the
removal of the Artwork.
8. Care and Condition. The artwork is loaned in good condition unless otherwise
noted. The artwork should be examined for condition upon receipt_ The artwork shall at all
times be given special care to insure it against loss, damage or deterioration. Should loss
or damage or deterioration be noted, Buschlen Mowatt Fine Art, LLC are to be notified
immediately and in detail. It is understood that the artwork covered by this Agreement
Shall—remain-in—the"coriditinmin—whriUh—t ey are received. I hey shall no e cleaned,
repaired, retouched, or altered in any way except with written permission from Buschlen
Mowatt Fine Art, LLC.
9. Reproduction and Distribution. City may make and distribute, and authorize the
making, display, and distribution of, photographs and any other two-dimensional
reproductions. City may use such reproductions for any purpose, including advertising,
educational, and promotional materials, brochures, books, flyers, postcards, print,
broadcast, film, electronic and multimedia publicity, gifts for City benefactors,
documentation of City's Public Art Collection, and catalogues or similar publications. City
shall ensure that such reproductions are made in a professional and tasteful manner, in
the sole and reasonable judgment of the City. The proceeds from the sale of any such
reproductions shall be used to maintain and support the Artwork or for any other
governmental or charitable purpose as determined at the sole discretion of City.
10. Indemnification. Buschlen Mowatt Fine Art, LLC hereby agrees to indemnify
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
2
any act, omission or negligence of Buschlen Mowatt Fine Art LLC, its agents, employees
or contractors, or from the existence of the Artwork at the Loan Agreement sites, 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 will misconduct of the City, its officers, agents or employees who
are directly responsible to the City.
3
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first above written.
"OWNER"
BUSCHLEN MOWATT FINE ART, LLC
A Limited Liability Corporation
Its V /a�sra�
"CITY"
4
EST: CITY OF PALM SPRINGS,
A municipal corporation
ity Clerk os !Z zoo?
City Manager
APPR AS TO FORM: APPROVED By CliYC PdCIL
City Att rney
4
State of California )
)ss.
County of Riverside )
On rehr'IA�y before me, LVt,�hl a /7. 3er4rdl.
Date //Name and Title of Officer v
personally appeared �d err
0
Name(s) of Signe s)
❑ personally known to me
91 proved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) are
subscribed to the within instrument and
CYNTHIA A.BERARDI acknowledged to me that&she/they executed
Commission N 1445E99 the same in is h-er/thiatr authorized
`O. IMVCoffm.
Notary Public-Colllomia capacity(+es), and that by is Jar/tttetir
Rlveniae CountyEq*MFab7t1,2010 signatures(sj on the instrument the person(s), or
the entity upon behalf of which the person(s -
acted, executed the instrument.
WITNESS my hand and official seal
Signatdre of Notary Public
EXHIBIT "A"
(The Artwork)
5
EXHIBIT "A"
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Squeeze, 2005
108x108x144
EXHIBIT "A"
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Butch, 2005
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(The Site)
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12/18/06 1 OF 1
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12/18/06 1 OF 1