HomeMy WebLinkAboutReso 116-2016 (16-733) „xso City of South San Francisco
P.O. Box 711 (City Hall,
400 Grand Avenue)
y = South San Francisco,CA
4 Resolution: RES 116-2016
File Number: 16-733 Enactment Number: RES 116-2016
RESOLUTION APPROVING THE ART PURCHASE AGREEMENT
WITH ARTIST POKEY PARK FOR THE PURCHASE OF THE
ELECTRIC SLIDE SCULPTURE IN THE AMOUNT OF $8,000 AND
AUTHORIZING THE CITY MANAGER TO EXECUTE SAID
AGREEMENT.
WHEREAS, the City of South San Francisco (City) solicited entries for loan of public art to be located
at the Orange Memorial Park Sculpture Garden; and
WHEREAS, Pokey Park(Artist) submitted an entry,Electric Slide pursuant to the City's request; and
WHEREAS, on February 8, 2013, City and Artist entered into a Loan Art Program Agreement, whereby
Artist agreed to loan Electric Slide to the City for display through 2015, in exchange for a $1,500
stipend; and
WHEREAS, on May 20, 2015, City and Artist entered into the First Amendment to the Loan Art
Program Agreement in order to extend the term of the Loan Art Program Agreement through 2016 for an
additional $750 stipend; and
WHEREAS, City and Artist now desire City to purchase Electric Slide previously on loan by Artist for
one additional stipend of$8,000.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that
the City Council hereby approves the Art Purchase Agreement between the City and Pokey Park(Exhibit
A).
BE IT FURTHER RESOLVED by the City Council of the City of South San Francisco that the City
Manager is hereby authorized to execute the Art Purchase Agreement on behalf of the City Council of
the City of South San Francisco, subject to the approval as to form by the City Attorney, and take any
other related action necessary to further the intent of this Resolution.
* * * *
At a meeting of the City Council on 9/28/2016, a motion was made by Karyl Matsumoto, seconded by
Pradeep Gupta, that this Resolution be approved.The motion passed.
Page 1
File Number: 16-733 Enactment Number: RES 116-2016
Yes: 4 Councilmember Normandy, Councilmember Matsumoto, Vice Mayor Gupta,
and Mayor Addiego
Absent: 1 Councilmember Garbarino
Attest by s/ice
4 a M a
Page 2
1
ART PURCHASE AGREEMENT BETWEEN
THE CITY OF SOUTH SAN FRANCISCO AND POKEY PARK.
THIS ART PURCHASE AGREEMENT (“Agreement”) is made at South San Francisco,
California, as of October 1, 2016, by and between THE CITY OF SOUTH SAN FRANCISCO
(“City”), a municipal corporation, and Pokey Park, of Tucson, Arizona (“Artist”), (sometimes
referred together as the “Parties”) who agree as follows:
RECITALS
A.WHEREAS, the City of South San Francisco solicited entries for loan of public art
(hereinafter called “Work”) to be located at the Orange Memorial Park Sculpture Garden
(hereinafter called “Site”); and
B.WHEREAS, the Artist submitted an entry, Electric Slide pursuant to the City’s
request; and
C.On February 8, 2013, CITY and ARTIST entered into a Loan Art Program
Agreement, whereby ARTIST agreed to loan Work to the City for display through 2015, in
exchange for a $1,500 stipend; and
D.On May 20, 2015, CITY and ARTIST entered into the First Amendment to the
Loan Art Program Agreement in order to extend the term of the Loan Art Program Agreement
through 2016 for an additional $750 stipend; and.
E.City and Artist now desire City to purchase the Work previously on loan by Artist
for one additional stipend of $8,000.
NOW, THEREFORE, for and in consideration of the promises and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and
Artist hereby agree as follows:
ARTICLE I. SCOPE OF SERVICES
A.Purchase of Work
1.Artist agrees to sell Work to City and City agrees to purchase Work from Artist.
2.Title of ownership of the Work shall pass to the City upon the execution of this
Agreement.
ARTICLE II. COMPENSATION
A.PAYMENT
Exhibit A: Art Purchase Agreement - Pokey Park
2
1. City shall pay Artist a fixed fee of eight thousand dollars ($8,000) for the Work, which
shall constitute the full purchase price under this Contract.
2. City shall provide Artist with payment within thirty (30) days of execution of this
Agreement.
ARTICLE III. TIME OF PERFORMANCE
A. FORCE MAJEURE
Except for the City’s obligations to make payments pursuant Article II, neither party shall be
considered in default in the performance of its obligations hereunder if such performance is
prevented or delayed because of war, hostilities, revolution, civil commotion, strike, lock-
out, epidemic, accident, fire, wind, catastrophic event or flood or because of any law, order,
proclamation, regulation or ordinance of any government or of any subdivision thereof or
because of any act of God or any other cause beyond the reasonable control of the party
affected (“Force Majeure Event”); provided that the affected party shall have used its best
efforts to avoid such condition and, provided further, that notice of such Force Majeure Event
is given by the affected party to the other within five (5) days of said Force Majeure Event.
Should one or both of the parties be prevented from fulfilling their contractual obligations
because of a Force Majeure Event lasting continuously for a period of at least six (6) months,
the parties shall consult with each other regarding the future implementation of this
Agreement. The parties agree to use their best efforts to minimize any delays and/or losses,
if any, resulting from such Force Majeure Event.
ARTICLE IV. WARRANTIES
A. WARRANTIES OF TITLE
1. The Artist represents and warrants that:
a. the Work is solely the result of the artistic and creative efforts of the Artist;
b. except as otherwise disclosed in writing to the City, the Work is unique and original
and does not infringe upon any Copyright; and
c. the Work is free and clear of all liens from any source whatsoever.
2. The warranties described in this Section A shall survive for so long as the City or any
successor of City owns the Work.
B. WARRANTIES OF QUALITY AND CONDITION
1. The Artist shall furnish the City with a full written narrative description of the Work.
Exhibit A: Art Purchase Agreement - Pokey Park
3
2. The Artist shall provide to the City, written instructions for appropriate maintenance and
preservation of the Work, including moving and reinstallation of the Work.
3. The Artist represents and warrants that:
a. the Work, as fabricated and installed, will be free of defects in material and
workmanship, including any defects of “inherent vice” or qualities which may cause
or accelerate deterioration of the Work; and
b. reasonable maintenance of the Work will not require procedures in excess of those
described in Article IV, Section B, subsection 2.
4. The warranties described in this Section B shall survive for a period of one (1) year after
transfer of ownership of the Work. The City shall give notice to the Artist of any
observed breach of these warranties with reasonable promptness. The Artist shall, at the
request of the City, and at no cost to the City, cure reasonably and promptly the breach of
any such warranties, which is curable and which cure is consistent with professional
conservation standard (including, for example, cure by means of repair or refabrication of
the Work).
5. The Artist shall not be responsible for any damage inflicted on the Work by third parties
or outside forces, whether man-made or from natural causes, which exceed those that the
design of the Work should reasonably tolerate.
6. After transfer of ownership to the City, the City shall hold the Artist harmless from any
and all liability or personal injury to the public, except to the extent covered by the
warranties of Article IV, Section B.
ARTICLE V. OWNERSHIP OF WORK AND COPYRIGHT
A. GENERAL
The Artist retains Copyright in and to the work under the Copyright Act of 1976, 17 U.S.C.,
Section 101, et seq. The 9’6” monument shall be a one of a kind sculpture. The Artist
reserves the right to produce similar Works at any size.
B. IDENTITY OF ARTIST
The Artist grants to the City and its assigns an irrevocable license to make two-dimensional
reproductions of the Work for non-commercial purposes, including but not limited to
reproductions used in advertising, brochures, media publicity, and catalogues or other
publications, provided that these rights are exercised in a tasteful and professional manner.
All two-dimensional reproductions of the Work by the City shall contain a credit to the Artist
substantially in the following form: By: Pokey Park, 2013
Exhibit A: Art Purchase Agreement - Pokey Park
4
C. NOTICES
All notices required herein shall be in writing and served upon the parties as follows:
Pokey Park
6396 N. Desert Wind Circle
Tucson, AZ 85750
City of South San Francisco
Attn: City Manager
PO Box 711
South San Francisco, CA 94083
(650) 877-8500
All notices required herein shall be deemed served when mailed by First Class Mail,
Certified Mail, postage prepaid, to each party’s last known mailing address. It is the
responsibility of each party to inform the other of a change in address. If notice cannot be
served due to a change in address, which has not been served upon the other party, such
party’s failure to notify shall be deemed a waiver of notice.
ARTICLE VI. SUBSEQUENT EVENTS
A. MAINTENANCE
The City and the Artist recognize that maintenance of the Work on a regular basis is essential
to the integrity of the Work. Therefore, the City shall assure regular maintenance according
to the instructions supplied by the Artist and may take action reasonably designed to protect
the Work against vandalism.
B. REPAIRS AND RESTORATION
After transfer of ownership to the City, the Artist may inspect the Work at her own expense
and shall notify the City in writing as to the necessity of any repairs. The City may in its
discretion consult with the Artist and make the noted repairs. All such consultations shall be
without additional cost to the City.
C. ALTERATION OF THE WORK
The City will not consent to the intentional alteration, modifications or change to the Work.
The City shall retain the right to sell or donate the Work to a third party.
D. REMOVAL FROM THE SITE
The City shall retain the right, at its sole discretion, to remove from display and place in
storage, or surplus, sell, donate, or scrap the Work.
Exhibit A: Art Purchase Agreement - Pokey Park
5
E. WAIVER OF RIGHTS
The Artist understands and agrees that the provisions of this Article VI shall control over the
provisions of 17 U.S.C. – 106A (a), known as the Visual Artist Rights Act of 1990
(“VARA”), and other laws granting the Artist any “moral rights” or similar rights as to the
Work, and shall constitute a waiver by the Artist of any rights with the exception of
copyright, in the Work set out in or otherwise granted by 17 U.S.C. – 106A (a) or in such
other laws.
ARTICLE VII. INDEPENDENT CONTRACTOR
The Artist performed work under this Agreement as an independent contractor and not as an
agent of an employee of the City.
ARTICLEVIII. INDEMNIFICATION
The Artist shall defend, release, indemnify and save and hold harmless the City against any and
all damages to property or injuries to or death of any person or persons, and shall defend, release,
indemnify and hold harmless the City from any and all claims, demands, suits, liabilities, actions,
causes of actions, or legal or equitable proceedings of any kind or nature, including reasonable
attorney’s fees incurred by legal counsel of the City’s choice, or by anyone whomsoever, in any
way resulting from or arising out of the Artist’s activities in connection with this Contract,
including acts of omissions of the Artist or persons acting under the Artist’s control.
ARTICLE IX. TERMINATION
If either the Artist or the City shall willfully or negligently fail to fulfill in a timely and proper
manner, or otherwise violate any of the covenants, agreements or stipulations material to this
Contract, the other party shall thereupon have the right to terminate this Agreement by giving
written notice to the defaulting party of its intent to terminate and specifying the grounds for
termination. The defaulting party shall have thirty days (30) after receipt of the notice to cure the
default. If the default is not cured within such time period, this Agreement shall terminate.
ARTICLE X. MODIFICATION
No alteration, change or modification of the terms of this Contract shall be valid unless made in
writing and signed by the parties hereto.
ARTICLE XI. CONFLICT OF LAW
Any provision of this Agreement, which is hereafter found by a court of law or otherwise to be in
conflict with the laws, rules, and/or regulations of the United States or the State of California
shall be considered null and void. The valid provisions of this Agreement shall be severed from
the invalid provisions and remain in effect to the extent possible. The law of the State of
California shall govern the interpretation of this contract.
Exhibit A: Art Purchase Agreement - Pokey Park
6
ARTICLE XII. CHOICE OF LAW
All conflicts, causes of actions and civil disputes shall be filed in the Superior Court in the State
of California.
ARTICLE XIII. EFFECTIVE DATE
The effective date of this Agreement shall be the date of approval by all parties hereto.
ARTICLE XIV. PRIOR AGREEMENTS
All terms, conditions and provisions in this Agreement shall control between the City and Artist.
If there is a conflict between the terms of this Agreement and prior Art Loan Agreements
between the City and Artist, the terms of the Agreement will control.
ARTICLE XV. COUNTERPARTS FOR SIGNATURE
This contract may be executed in duplicate counterparts, each of which shall be deemed an
original.
CITY OF SOUTH SAN FRANCISCO ARTIST
By: _______________________ ________________ By: __________________________
Sharon Ranals, Director of Parks and Recreation Pokey Park
Approved as to Form:
By: ______________________
City Attorney
2320736.1
Exhibit A: Art Purchase Agreement - Pokey Park