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HomeMy WebLinkAboutC37030 - Sponsor 2019 Deset X Exhibition CONTRACT NO. C37030 ",w_ STAFF REPORT CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT MEETING DATE: May 10, 2018 PREPARED BY: Deborah S. Glickman, Management Analyst REQUEST: Request for approval of a Sponsorship Agreement in the amount of $35,000 with Desert Biennial for the 2019 Desert X Exhibition. Recommendation By Minute Motion: 1) Approve a Sponsorship Agreement in the amount of $35,000 with Desert Biennial for the 2019 Desert X Exhibition to be held February 9 — April 21, 2019. a. Funds in the amount of $20,000 are being requested as part of the Fiscal Year (FY) 2018/2019 Marketing Department budget; and b. Funds in the amount of $15,000 are being requested as part of the FY 2018/2019 from the Public Art budget Fund No. 436. 2) Authorize staff to finalize the negotiations of the Sponsorship Agreement with Desert Biennial and authorize Mayor to execute same, subject to the satisfaction of the City Attorney; and 3) Waive all permit and inspection fees associated with the Desert X Exhibition. Commission Recommendation At its regularly scheduled meeting of April 11, 2018, the Art in Public Places Commission unanimously recommended a sponsorship of Desert X. Strategic Plan Desert X contributes to the Economic Development and Tourism and Marketing elements of the City's Envision Palm Desert Strategic Plan. Specifically, event creation contributes to: Staff Report Desert X Sponsorship May 10, 2018 Page 2 of 4 1) Priority No. 3 of the Economic Development element — Create and attract entertainment and events to enhance and expand the Palm Desert economy and lifestyle. 2) Priority No. 2 of the Marketing and Tourism element — Grow existing events and develop new events to enhance the desirability of Palm Desert as a year-round destination. Background The City has been approached by the organizers of Desert X for a sponsorship of $50,000 for its 2019 Exhibition, which will run from February 9 — April 21, 2019. Staff has considered this request and is recommending a sponsorship in the amount of $35,000. Funds for the sponsorship are being proposed from both the Public Art budget ($15,000) and the Marketing Department budget ($20,000) in FY 2018/2019. This sponsorship request is an increase from the $25,000 sponsorship that the City made for the 2017 Desert X Exhibition. The 2017 Desert X Exhibition took place for nine (9) weeks from February through April and was met with tremendous success. During this exhibition the City of Palm Desert was home to two sculpture installations — Curves and Zigzags by Claudia Comte and The Circle of Land and Sky by Phillip K. Smith. Both sculptures were extremely popular and well received, with images of them being circulated worldwide. Desert X staff estimates that the 2017 exhibition was visited by approximately 200,000 visitors; had two (2) billion print, broadcast, and online impressions; and more than four hundred (400) media articles including four (4) in the Los Angeles Times and five (5) in The New York Times. As did the 2017 Sponsorship Agreement, the proposed Agreement will require that at least one of the Desert X sculptures be installed in the City of Palm Desert on either public or private property. If Desert X opts to place the sculpture on City property, then staff will work with them to attain approvals and secure a Temporary Use Permit for the duration of the exhibition. Regardless of where the sculpture is installed, Desert X will be required to ensure that it is available to the public for viewing from dawn to dusk and into the evening, if appropriate, seven (7) days per week unless otherwise agreed to by both parties. The Sponsorship Agreement also requires that the sculpture be reviewed and approved by the City before being installed. Staff will also create programing, potentially including artist talks and receptions, around the artwork to coincide with First Weekend and other occasions. Staff Report Desert X Sponsorship May 10, 2018 Page 3 of 4 Sponsorship of Desert X will ensure that Palm Desert will be included in this important Coachella Valley cultural event. It will be included with logo presence and mentions of Palm Desert in most of the event's marketing and public relations. Additionally, it will offer exposure about Palm Desert to arts and culture enthusiasts and travelers worldwide. Through its partners Desert X has an enormous marketing reach regionally, nationally, and internationally. Fiscal Analysis Funds for the sponsorship of Desert X are being requested as part of the FY 2018/2019 budget in the amount of $15,000 from the Public Art Fund Account No. 436, and funds in the amount of $20,000 from the Marketing Department's budget. LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW CITY MANAGER N/A /1:"%� Robert W. Ryan Stendell t Moore auri Aylaian Hargreaves Director of Director of Finance City Manager City Attorney Community Development ATTACHMENTS: Draft Minutes from the April 11, 2018 Art in Public Places Commission meeting Draft Sponsorship Agreement with Desert Biennial Art in Public Places Minutes April 11. 2018 CONTINUED BUSINESS A. APPROVE A $15,000 SPONSORSHIP FROM THE PUBLIC ART FUND FOR THE 2019 DESERT X EXHIBITION (Continued from the meeting of March 14, 2018) Ms. Glickman stated that staff is recommending a total of a $35,000 sponsorship for the Desert X Exhibition that will require that one sculpture be placed in Palm Desert. Of the $35,000, she is asking that $15,000 be approved from the Public Art fund. The balance will be paid from the Marketing budget. Ms. Jenny Gil, Executive Director of Desert X, gave an overview of the project. She has been meeting with all of the cities in the Valley regarding the project and expects that most of them will be sponsoring the 2019 Exhibition. There will be approximately 16 sites available for artworks. The exhibition will be over a nine-week period from February 9 through April 21, 2019. The Commissioners expressed their enthusiasm from the 2017 Exhibition and are looking forward to another successful event. Commissioner Campbell moved to approve a 615,000 sponsorship from the public art fund for the 2019 Desert X Exhibition. Motion was seconded by Commissioner Hough and carried 6-0-0 with Adney, Boren, Campbell, Darby, Hough, and Miller voting AYE. 6 CONTRACT NO. C37030 SPONSORSHIP AGREEMENT This Sponsorship Agreement ("Agreement") is entered into this 10th day of May 2018, by and between the City of Palm Desert ("City") and Desert Biennial, a non-profit 501(c)3 organization ("Contractor"). The City and Contractor are sometimes collectively referred to in this Agreement as the `Parties" and individually referred to as "Party." The Agreement is made in light of the following Recitals: RECITALS WHEREAS, Contractor wishes to create an art based exhibition entitled "Desert X" (Exhibition) to attract residents and visitors to Palm Desert and the Coachella Valley from February 9 — April 21. 2019 (the "Exhibition Period"). WHEREAS, the City desires to sponsor the Exhibition through funding a portion of the costs associated with the Exhibition. WHEREAS, Contractor seeks to exhibit at minimum one (1) sculpture ("Sculpture") within the City of Palm Desert at a location yet to be determined. NOW, THEREFORE, in consideration of the mutual promises set forth herein, and in light of the above Recitals, which are hereby made a part of this Agreement, the Parties hereby agree as follows: AGREEMENT 1. Term. The Term of this Agreement shall commence on May 10, 2018 and continue until May 30, 2019 or upon completion of the Exhibition and artwork deinstallation. 2. Responsibilities of the Parties. 2.1 Responsibilities of City. 2.1 .1 City will review and approve the proposed Sculpture prior to installation. After City shall have the opportunity to review and approve any substantive material and/or design changes to the proposed Structure in advance of installation. 2.1.2 City shall waive all permit and inspection fees associated with the Exhibition. 1 2.1.3 Under a separate Temporary Use Permit, City shall allow Contractor an option to install one (1) or more approved Sculptures on City approved property for one (1) month prior to through one month following the Exhibition Period. 2.2 Responsibilities of Contractor. 2.2.1 Contractor shall provide and install a minimum of one (1) Sculpture in within the City of Palm Desert on either City or private property. 2.2.2 Contractor shall work with City staff to reasonably comply with the Americans with Disabilities Act (ADA) requirements. 2.2.3 Contactor will ensure that Sculpture is available to the public from dawn until dusk and into the evening, if appropriate, seven (7) days per week unless otherwise mutually agreed upon by both parties. 2.2.3 Contractor shall advertise and promote the City of Palm Desert within its pre-exhibition advertising, on site, post-exhibition and online advertising as shown in Exhibit A. 2.2.4 Contractor shall be responsible for obtaining all appropriate permits and/or inspections from City or any other appropriate agency. 2.2.5 Contractor will use good faith efforts to make available the artist, curator. Executive Director, and/or a board member from "Desert X" for at least one educational program at a mutually agreed upon date and time between April 5 and 7, 2018, or on another date as mutually agreed upon by both parties. 3. Compensation. The City shall pay a sponsorship fee in the amount of $35,000 to Contractor. The payment shall be remitted as follows: $10,000 due within thirty (30) days of fully executed contract, and $25,000 due by January 7, 2019 if Sculpture is installed on private property. If Sculpture is installed on City property, the payments shall be remitted as follows: $10,000 $10,000 due within thirty (30) days of fully executed contract, $20,000 by January 7, 2019, and $5,000 within thirty (30) days of deinstallation and restoration of the installation site. 2 4. Health, Safety, and Welfare of the Community. The City may impose additional reasonable requirements as deemed necessary to protect the health, safety, and welfare of the community. 5. Reproduction Rights. Contractor grants City, in perpetuity. the right to photograph, film, videotape, or otherwise depict the Sculpture at any time during the Exhibition Period and to use such photographs, film, videotapes, or depictions at any time thereafter for purposes of promotion relating to the Exhibition or the City; provided, however, that: (i) the City shall be responsible for obtaining all necessary third party clearances (e.g. from the artist or photographer); and (ii) Contractor shall have the right to approve any promotion by City relating solely to the Exhibition. Such reproduction and images of the Sculpture which feature the Sculpture as art for publicity, promotion, and educational purposes shall give reference to the artist. Reproduction and images of Sculpture in which the purpose of the reproduction or image is predominantly unrelated to the Sculpture shall not require reference to artist. 6. Remedies and Termination. 6.1 Remedies. The Parties agree to provide each other with written notice of nonperformance, unsatisfactory performance, or any other dispute arising from the terms of this Agreement. The Parties shall have thirty (30) days from receipt of said written notice to correct any performance deficiencies. The Parties may mutually agree to extend the thirty (30) day cure period. The Parties agree to cooperate in good faith to resolve any performance issues or dispute arising from this Agreement. Either Party in its sole and absolute discretion may waive a default that cannot be cured. 6.2Termination. In the event any dispute cannot be resolved under these procedures, each Party retains such legal and equitable remedies as it may have under the law to enforce this Agreement. If either Party defaults under this Agreement and does not timely cure such default, the non- defaulting Party may terminate this Agreement upon providing written notice of termination of this Agreement to the defaulting Party, in which case this Agreement shall terminate. 6.3Termination without cause. Contractor may terminate this Agreement upon at least ninety (90) days prior written notice to City. If Contractor terminates this Agreement, pursuant to this Section 10.3, the City shall be entitled to a refund of any prepaid amounts. 3 7. Insurance. Without limiting Contractor's indemnification of City, and prior to commencement of the Exhibition. Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form that is satisfactory to the City. 7.1 General Liability Insurance. Contractor shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $2,000.000 per occurrence, $4,000.000 general aggregate, for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. If alcohol is sold during the permitted activity, coverage must include full liquor liability. 7.2Automobile Liability Insurance. Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with Work to be performed under this Agreement. including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. 7.3 Workers' Compensation Insurance. Contractor shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1 ,000,000). Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City of Palm Desert, its officers, agents, employees and volunteers. 7.4 Umbrella or Excess Liability insurance. Contractor may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. In such circumstances, Contractor shall obtain and maintain an umbrella or excess liability insurance policy with limits of not less than $4,000,000 that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer's liability. Such policy or policies shall include the following terms and conditions: • A drop down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; 4 • Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; and • Policies shall "follow form" to the underlying primary policies; • Insureds under primary policies shall also be insureds under the umbrella or excess policies. 8. Other Provisions Or Requirements. 8.1 Insurance for Subcontractors. All subcontractors shall be included as additional insureds under the Contractor's policies, or the Contractor shall be responsible for causing subcontractors to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City as an Additional Insured to the subcontractors' policies. 8.2 Proof of Insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of the Exhibition. 8.3Duration of Coverage. Contractor shall procure and maintain for the duration of the contract, insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Contractor, his/her agents, representatives, employees or subcontractors. 8.4Acceptabie Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 8.5 Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against the City of Palm Desert, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City of Palm Desert and shall require similar written express waivers and insurance clauses from each of its subcontractors. 8.6 Primary and Non-Contributing Insurance. All insurance coverages shall be primary and any other insurance, deductible, or self-insurance 5 maintained by the indemnified parties shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions. 8.7Additional Insured Status. General liability, Automobile Liability, and if applicable, Pollution Liability, policies shall provide, or be endorsed to provide, that the City of Palm Desert and its officers, officials, employees, and agents shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement, under such policies. This provision shall also apply to any excess liability policies. 8.8Additional Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Exhibition. 9. Indemnification. Contractor shall indemnify, defend, and hold harmless the City of Palm Desert, its officers, employees, and agents from any and all losses, costs, expenses, claims, liabilities, actions, or damages, including liability for injuries to any person or persons or damage to property arising at any time during and/or arising out of or in any way connected with Contractors activities under the terms of this agreement, unless solely caused by the gross negligence or willful misconduct of the City of Palm Desert, its officers, employees, or agents. 9.1 Force Majeure. Any delay or failure in the performance by either party hereunder shall be excused if and to the extent caused by occurrence of a Force Majeure. Force Majeure shall mean a cause or event that is beyond the reasonable control of the party claiming Force Majeure. Force Majeure includes but not limited to, acts of God, fires, floods, rain, heavy wind, earthquake, explosions, riots, wars, sabotage, terrorism, vandalism, accident, restraint of government, governmental act, injunctions, destruction of site and other like events. In the event City has advanced funds for the sponsorship to the extent not utilized directly for the Exhibition any unused portion shall be returned. 10.Notices. Whenever it shall be necessary for either Party to serve notice on the other regarding this Agreement, such notice shall be served either in person, by certified mail, return receipt requested to the addresses below. City: City of Palm Desert Palm Desert Civic Center 73-510 Fred Waring Drive Palm Desert. CA 92260 6 Attn: City Clerk Desert X: Desert Biennial PO Box 4050 Palm Springs, CA 92263 Attn: Susan Davis Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 1 1 .Legal Costs. In the event of any legal action between the City and Contractor arising out of the obligations of the Parties pursuant to this agreement, the prevailing Party will be entitled to payment of its costs and expenses, including its reasonable outside attorneys` fees. 12.Binding Effect. Successors. Neither Party shall assign or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the other Party, which may be given in such Party's sole and absolute discretion. Any attempt to do so shall be null and void, and any assignees or transferees shall acquire no right or interest by reason of such attempted assignment or transfer. This Agreement shall bind and inure to the benefit of the Parties and their respective heirs, legal representatives, successors and assigns and all of the Parties thereto shall be jointly and severally liable hereunder. 13.Counterparts. This Agreement may be executed in counterparts each of which shall be deemed an original and all of which together shall constitute one and the same instrument which shall be binding upon the Parties notwithstanding that the Parties may not be signatories to the same counterpart or counterparts. The Parties may integrate their respective counterparts by attaching the signature pages of each separate counterpart to a single counterpart. 14.Further Assurances. Whenever requested to do so by the other Party, each Party shall execute, acknowledge, and deliver any further conveyances, assignments, confirmations, satisfactions. releases, powers of attorney, instruments of further assurance, approvals, consents, and any documents that are necessary, expedient, or proper to complete anything contemplated by this Agreement. In addition. each Party shall do any other acts and execute, acknowledge, and deliver any requested documents in order to carry out the intent and purpose of this Agreement. 15.Modifications. All modifications to this Agreement must be in writing and signed by the Parties. 7 16.Third-Party Rights. Nothing in this Agreement, expressed or implied, is intended to confer upon any person, other than the Parties and their respective successors and assigns, any rights or remedies. 17.Governing Law; Choice of Venue. This Agreement shall be governed and construed in accordance with California law, including the Fair Political Practices Act of 1974. Venue shall be Riverside County. 18.Severability. If any provision of this Agreement becomes or is declared by a court to be illegal, unenforceable or void, that clause will be omitted and the remainder of the Agreement will continue in full force and effect. Such holding shall in no way affect the validity or enforceability of this Agreement. 19.Entire Agreement. This Agreement is the entire agreement between the Parties and supersedes any prior or contemporaneous representations. understandings or agreements, whether written or oral. 20.Waiver of Jury Trial. The Parties specifically waive any right to trial by jury in any court with respect to any contractual, tortious or statutory claim, counterclaim or cross claim against the other arising out of or connected in any way to this Agreement because the Parties hereto, both of whom are represented by counsel, believe that the complex commercial and professional aspects of their dealing with one another make a jury determination neither desirable nor appropriate. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first hereinabove written. CITY OF PALM DESERT Sabby Jonathon, Mayor ATTEST: Rachelle D. Klassen, City Clerk 8 DESERT BIENNIAL Susan Davis, President Approved As To Form: Robert W. Hargreaves, City Attorney 9 Exhibit A Under this agreement, Desert Biennial will include the City of Palm Desert in the following marketing and public relations efforts: inclusion of the City of Palm Desert's logo on the Desert X website and all appropriate print and digital materials. Recognition of the City of Palm ❑esert's sponsorship in signage at the location of the installation. Mention of the City of Palm Desert as a sponsor on all press releases. Any other appropriate locations/outlets as negotiated by both Parties. 10