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Home My WebLink AboutContract 1561 ORIGINAL C - i AGREEMENT FOR TRANSFER OF ARTWORK OWNERSHIP City of Cathedral City Public Art Program L THIS AGREEMENT FOR TRANSFER OF ARTWORK OWNERSHIP AND ASSIGNMENT OF ALL RIGHTS IN ARTISTIC WORK (the "Agreement") is made and entered into as of this /1 day of Sr# . 4,-2017 , by and between the CITY OF CATHEDRAL CITY, a Municipal Corporation ("City"), and Simi Dabah, a ("Donor"). City and Donor are each sometimes hereinafter referred to as "Party" and are hereinafter referred to collectively as "Parties." RECITALS WHEREAS, Donor presently desires and intends to transfer ownership of artwork ("Art") to the City and all residual, exclusive rights therein, and have such Art initially placed at the location of the intersection of Ramon Road and Da Vall Drive, Cathedral City, California, in accordance with this Agreement, and the City of Cathedral City Art in Public Places Program as established by Chapter 11.45 of the Cathedral City Municipal Code ("Public Art Ordinance"); and WHEREAS, the City desires to accept the transfer of ownership of the Art and all rights therein in accordance with the terms of this Agreement and the Public Art Ordinance. NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: AGREEMENT Section 1. Recitals; Exhibits. The recitals above are hereby incorporated by reference in this Agreement as though fully set forth herein, and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same. Each of the Exhibits attached hereto is incorporated herein by reference. Section 2. Description of Art. The Art is described in Exhibit "A", attached hereto and incorporated herein by reference. Section 3. Initial Location of Art. a. The City shall have the full discretion as to when and where the Art is displayed. Donor shall have no right to have the Art displayed at a particular time or at a particular location or in a particular manner. b. The Art will initially be placed at the location in Cathedral City, California, as shown on Exhibit "B", attached hereto and incorporated herein by reference. The City may, in its sole 1 discretion, move the Art from its initial location at any time, for any reason in the City's sole discretion, to any other location within the City, and may modify the lighting of and/or placement of the Art. Where Donor is also the author of the Art ("Artist"), the Donor hereby agrees to waive any and all rights Donor may have under the Visual Artists Rights Act, 17 U.S.C. §§ 101 et seq., including but not limited to the right to prevent any intentional distortion, mutilation, or other modification of the Art, and the right to prevent the grossly negligent destruction of a work of recognized stature, which could be implicated by the relocation or subsequent placement of the Art, and such waiver shall apply to any and all uses by the City, including but not limited to all public display uses. Where Donor is also the Artist, Donor hereby agrees to waive any and all rights Donor may have under California Civil Code § 987, including any right arising from the physical defacement, mutilation, alteration, or destruction of the Art which could occur as a result of such relocation or placement. c. In order to preserve the integrity of the work, Donor may provide the City with written instructions relating to the initial or future installation of the work. However, Donor acknowledges and agrees that the City shall have full discretion to follow or not follow said instructions, and that the City shall be authorized to use its sole discretion to determine reasonable and appropriate installation plan(s). Section 4. City Representative. For purposes of this Agreement, the City representative shall be the City Manager, or his or her designee (hereinafter the "City Representative"). Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the City Representative. Notwithstanding any language in this Agreement to the contrary, the Parties acknowledge that this Agreement will not be effective unless and until the City Council of the City approves the form hereof in open session. Section 5. Ownership of and Transfer of Physical Art; Good Title. a. Donor hereby represents and warrants that it is the owner of the physical work of Art, and that Donor holds good title to the Art, free and clear from any defects of title, including but not limited to liens or claims by co-owners, heirs, or governments based on any violation of import or export laws. Donor hereby represents and warrants that the Art has not been stolen. Donor hereby agrees to indemnify the City, and its officers, directors, employees, agents, and representatives from any and all actions, claims, demands, damages, costs and expenses, including attorneys' fees, and all consequential damages, known and unknown, arising from or in connection with the Art or the transfer of the Art under this Agreement, which may result from a defect in title, including without limitation, any and all claims arising under the National Stolen Property Act, 18 U.S.C. §§ 2314-2315, or any other domestic or foreign law governing cultural property, stolen property, or the import or export of property. b. Donor hereby transfers the physical work of Art to the City, and the City hereby accepts said transfer of Art. Donor shall effectuate said transfer by releasing the Art to the City at a time agreed upon by the Parties, not to exceed thirty (30) days from the effective date of this Agreement. Section 6. Ownership and Transfer of All Exclusive Rights in the Copyrighted Work. a. Donor hereby represents and warrants that it is the owner of copyright of the Art, and is the sole owner of those exclusive rights comprised in the copyright, as provided in 17 U.S.C. 2 § 106, including the rights to reproduce the Art; prepare derivative works based on the Art; distribute copies of the Art to the public by sale or other transfer of ownership or by rental, lease, or lending; to perform the Art publicly; to display the Art publicly; and to perform the Art publicly by means of a digital audio transmission ("Exclusive Copyright Rights"). b. Donor hereby transfers complete ownership of the copyright of the Art to the City, including any and all Exclusive Copyright Rights, and City accepts ownership of those rights. City shall have the complete and exclusive right to publicly display the Art at the time, location, and in the manner of its choosing. In order to publicly display the Art, the City may, but is not required to, utilize stands, pedestals, platforms, bases, frames, display cases, or other display systems of its choosing; and may, but is not required to, place or affix placards or other signs near or to the Art, which may bear information, including but not limited to, the Artist's name, the name of the Art, the Donor's name, the City seal or name, and the date of transfer to the City. Section 7. Transfer of Rights of Reproduction. Donor hereby represents and warrants that it possesses the exclusive right of reproduction, as related to the Art and as that term is defined in California Civil Code § 982, which it hereby completely transfers, without reservation, to the City. The City shall have the exclusive right to reproduce the Art in any manner whatsoever for commercial and non- commercial purposes, including but not limited to reproductions of the Art as prints suitable for framing; casts of sculpture; reproductions used for greeting cards; and reproductions used in any form of advertising, including magazines, calendars, newspapers, posters, billboards, films or television. Hereinafter, Donor shall not acquire or claim any rights in or to the Art, any uses, reproductions, or derivatives thereof, or any proceeds therefrom. Section 8. City's Sole and Exclusive Ownership Rights. The Parties agree that upon execution of this Agreement, that the Art and all such rights, title, and interest in or to the Art, including all Exclusive Copyright Rights, patents, trademarks, service marks, or trade secret rights, held by Donor, shall belong to and will be transferred and assigned in their entirety to the City for whatever use it desires, and that City will and shall at all times own, solely and exclusively, complete and unencumbered, all right, title, and interest in and to the Art worldwide, as well as any modifications thereto and derivative works based thereon. Nothing contained herein shall be deemed to constitute a mere license or franchise in City. The Parties further agree that Donor shall not retain any ownership of or any right, title, or interest in the Art, or any portion thereof, including, but not limited to any related copyrights, or other proprietary rights. The Parties further agree that City will be free to use, modify, distribute, sell, license, or otherwise exploit the Art and any modifications to or derivative works based thereon, without any restrictions or limitations, and without any obligations, including that for compensation to Donor, and that Donor shall have no such rights. Section 9. Donor's Warranties: Authenticity, Originality, No Infringement on Rights. Donor hereby represents and warrants that (i) the Art is authentic and was created by the Artist as represented by Donor; (ii) the Art is original in creation; (iii) at the time of transfer hereunder, Donor is the sole owner of the Art and of all rights the Art possesses therein including copyright, trademark, and all other proprietary rights; (iv) Donor has and will have full and sufficient authority to transfer all rights granted herein and to waive all rights relinquished herein; (v) Donor is not under any obligation to transfer or sell the Art or any portion or residual right thereof to any third party; (vi) the Art has not been and will not be published under 3 circumstances which have or will cause a loss of any copyright, trademark, or other proprietary rights therein; and (vii) the Art does not and will not infringe any patent, copyright, trademark, or other proprietary rights, privacy rights, publicity rights, or other rights of any third party, nor has any claim (whether or not embodied in a legal action, past or present) of such infringement been threatened or asserted, nor is such a claim pending, against Donor (or, insofar as Donor is aware, against any entity from which Donor has obtained any rights). Section 10. Indemnification. Donor hereby agrees to indemnify the City, and its officers, directors, employees, agents, and representatives from any and all liability including actions, claims, demands, damages, costs and expenses, including attorneys' fees, and all consequential damages, known and unknown (collectively, "Claims"), arising from or in connection with the Art or the transfer of the Art under this Agreement, including any Claims which may arise in connection with any false representations, whether intentional or unintentional, made by the Donor as to authenticity or originality of the Art, or as to Donor's ownership of copyright or title to the work of Art; or arising from the Art's alleged infringement on any third party's rights including trademark, copyright, publicity, or privacy rights; or any Claims which may otherwise arise for any reason under any state, federal, or foreign law, including but not limited to The National Stolen Property Act, The Copyright Act, The Lanham (Trademark) Act, The Antiquities Act of 1906, The Archeological Resources Protection Act of 1979, The Native American Graves Protection and Repatriation Act, any customs laws relating to the import or export of property, or any laws governing cultural property or stolen property. Section 11. Waiver of Rights. Where the Donor is also the Artist, Donor hereby waives any and all rights Donor may have under the Visual Artists Rights Act, 17 U.S.C. §§ 101 et seq., including but not limited to the right of attribution, and the right of integrity, which right of integrity prevents any intentional distortion, mutilation, or other modification of the Art, and prevents the grossly negligent destruction of a work of recognized stature. Said waiver shall apply to any and all uses by the City, including but not limited to all public display uses, at any location and at any time. Where Donor is also the Artist, Donor furthermore hereby waives any and all rights Donor may have under California Civil Code § 987, including any right arising from the physical defacement, mutilation, alteration, or destruction of the Art, and the right to claim or disclaim authorship. Section 12. Delivery and Risk of Loss. The City shall be responsible for delivery of the Art to the City, all delivery costs, and all installation costs. The City furthermore bears the sole risk of damage to the Art during delivery to the City and during the installation of said Art. Section 13. Maintenance and Insurance. If Section 11 does not apply, the City will reasonably maintain the Art in a condition such that the Art is not intentionally distorted, mutilated, or modified in a manner which would be prejudicial to the Artist's reputation, and may insure the Art, at the City's discretion. However, Donor acknowledges and agrees that due to limited resources, the City shall not be responsible for extraordinary maintenance costs, which the City may determine in its full discretion. The City shall not be liable or otherwise responsible for any modifications to the Art which result from the passage of time or the inherent nature of materials, or which result from any conservation or 4 restoration of the Art. The City's maintenance or restoration efforts, which the City may take at its sole discretion, shall not be considered intentional distortion, mutilation, or modification of the Art. Section 14. Right to Resale. Donor hereby acknowledges and agrees that City is subject to physical space and other resource constraints, and may at any time in the future be unable to display, store or otherwise maintain ownership of the Art. The Parties hereby agree that at such time the City may sell the Art and is entitled to keep all of the proceeds in its Art in Public Places Fund, established pursuant to the Public Art Ordinance, Section 11.45.130. Section 15. Publicity Release. Without additional compensation, Donor hereby gives permission irrevocably and in perpetuity to the City to use, adapt, edit, reproduce, distribute, display, broadcast, and publicly display Donor's name, photograph and/or likeness (including, without limitation aural and visual likeness), hometown, and biographical data, without limitation, in whole or in part, throughout the world in any manner or medium now existing or later developed in connection with the City's Art in Public Places Program and any other promotional marketing or advertising activities of the City. Section 16. Documentation Relating to the Art. Donor agrees to transfer to the City all documentation, and share with the City all information, which Donor has, if any, relating to the Art, including authenticity, ownership, display, and restoration information prior to or simultaneously with the Effective Date of this Agreement. Section 17. Tax Deduction. In most cases, gifts to the City are tax deductible under the Internal Revenue Code. However, the City makes no representation as to any deduction which Donor will be entitled to as a result of the donation of Art, and the Parties agree that this donation is not dependent upon Donor receiving any such deduction. Donor acknowledges and represents that he or she has had the opportunity to seek independent legal advice as to the availability of any such tax deduction. Section 18. Valuation of Art. The City lacks expertise to value the Art. It is the Donor's sole responsibility to obtain valuation of the Art for tax deduction or any other purposes. However, the Parties agree that the City may use any such valuation obtained by Donor for any purpose, including for insuring the Art, if it chooses to do so. Section 19. Agreement Sufficient to Transfer. The Parties agree that this Agreement is the sole document necessary to effectuate the transfer of ownership of the Art, and ownership of any and all copyright rights as provided herein. The Parties acknowledge that under copyright law, the transfer of all copyright rights 5 contained herein shall become effective immediately upon execution of this document, whether the Agreement is recorded or not. Section 20. Attorneys' Fees. In the event either Party shall commence any action, including any form of alternative dispute resolution, against the other Party relating to this Agreement, or for the breach of any obligation contained herein, the prevailing Party shall be entitled to recover from the losing Party reasonable attorneys' fees, expenses, and costs associated with the action or alternative dispute resolution. Section 21. Successors and Assigns. The terms of this Agreement shall be binding upon and inure to the benefit of the respective heirs, successors in interest, and assigns of the Parties hereto. Section 22. Entire Agreement. This Agreement represents the entire integrated agreement between the City and the Donor, and supersedes all prior negotiations, representations, or agreements, either written or oral. This Agreement may be amended only by a written instrument signed by both the City and the Donor. Section 23. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force and effect. Section 24. Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California. In the event of litigation between the Parties, venue in State trial courts shall be exclusively in Riverside County, California. In the event of litigation in a United States District Court, exclusive venue shall lie in the Central District of California. Section 25. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument. Section 26. Authority. Each of the undersigned individuals represent and warrant that (i) the Party for which he or she is executing this Agreement is duly authorized and existing, (ii) he or she is duly authorized to execute and deliver this Agreement on behalf of the Party for which he or she is signing, (iii) by so executing this Agreement, the Party for which he or she is signing is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not 6 violate any provision of any other agreement to which the Party for which he or she is signing is bound. Section 27. Effective Date. This Agreement shall become effective upon its approval by the City Council of the City and its execution by each of the Parties set forth below, whichever occurs later. [SIGNATURE PAGE FOLLOWS] 7 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written. "CITY" CITY OF CATHEDRAL CITY, A Municipal Corporation Date: // L, 2013 �� boil kODERIC J. WOOD City Manager ATTEST: APPROVED AS TO CONTENT: ditad.2, .,AT�� ATRICK J. MILOS ity ler Community Dev Director APPROVED AS TO FORM: CHARLES GREEN City Attorney "DONOR(S)" Date: /, 2013 - S b A.34 ff (Donor Name) Se,co[.PTv2E. D #-.5=7_10c) Date: , 2013 (Donor Name) 8 SIMI DABAH,TRUSTEE,(The Realty Trust) 2068 Orange Tree Lane,#100 Redlands,CA 92374 1-310-200-4233/Cell 1-323-653-9394/Fax Email: jdabah @earthlink.net DONATION OF SIMI DABAH SCULPTURE FOR PERMANENT INSTALLLATION SCULPTURE ID# ,0 0 q - d 5 -O q DONATED BY: SIMI DABAH DATE: Sep remb 2 W;,) 2p 13 TO NON-PROFIT: C AT I-)I✓D R kir G/7y (Enter name of Non-Profit) ADDRESS: (08-- o o AiJ )'DA LA Ld 606../Q4-02..6 CITY: (ATH 2,}L C i 7 ( STATE: GA 2-2-3q CONTACT NAME: it!fit C0)(-') V A`I rZlC L *l!L0 5 PHONE: 7 6e) 91 2-- `f 0 5 E-MAIL: ►`Mc-0j 7u.ctc. Y��T ( tilt O5l)cR ,4. ,r(, C30■/ This document transfers all right,title and interest in and to the sculpture identified above to the NON-PROFIT identified above for permanent installation by the NON-PROFIT in accordance with the policies and instructions stipulated on the reverse of this form. Simi Dabah,Trustee Ii SculptureDocs:DonationPermForm9/8/2013 Simi Dabah sculptures are donated to qualified non-profit and public organizations(NON-PROFIT)for permanent installation on their property. Selection of an organization for this program is based,in part, on its legal status as a non-profit and its stated mission. Simi Dabah(DONOR)has final approval in selecting the organization and the proposed installation site. The sculptures have no appraised value. They have never been sold in the usual market of galleries, dealers,and auction houses. Simi Dabah deducts no costs from his taxes,and no charitable deductions are taken. The NON-PROFIT is responsible for the transport and installation of donated sculpture: 1. The DONOR will load sculpture from the Joshua Tree studio onto the transport vehicle provided by the NON-PROFIT. The NON-PROFIT is responsible for sculpture once it is loaded. 2.The DONOR may recommend someone as possible Transporter or Installer. Financial arrangements are between the Transporter/Installer and the NON-PROFTT. 3. The DONOR will provide data on the dimensions and weight of the sculpture. The NON-PROFIT is responsible for. 1.Determining local requirements for installation of sculpture and for obtaining any permits,if required. A qualified contractor should be consulted about requirements including pedestal installation. 2.Pedestals necessary for installation. A pedestal should be aesthetically pleasing as well as mechanically adequate. A pedestal may be installed at ground level or above ground,and with a shape(round,rectangular,etc.)that is suitable for the sculpture. The NON-PROFIT is responsible for costs. 3.Location of sculpture installation. Location must be approved by the DONOR. Photos of the proposed location should be provided to assist the DONOR. 4.A prominently displayed plaque at the installation site identifying sculpture title, medium used,and artist's name. Example will be provided. Donated sculpture may not be painted nor modified in any way without consent of the DONOR. SculptureDocs:DonationProgramPermAttachment9/8/2013