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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