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HomeMy WebLinkAboutStaff Report 4.D 02/06/2012 t4. e nda'Itww #4.D al ` nt .y Zg58 DATE: February 6, 2012 TO: Honorable Mayor and Members of the City Council FROM: John C. Brown, City Manager SUBJECT: Resolution Accepting the Recommendation of the Public Art Committee to Approve the Purchase of the Cherry Soda Sculpture in the Amount of$25,000 and Authorizing the City Manager to Execute Any Necessary Transactional Documents. RECOMMENDATION It is recommended that the City Council adopt the attached Resolution Accepting the Recommendation of the Public Art,Committee to Approve the Purchase of the Cherry Soda Sculpture in'the_Amount of$25,000 and Authorizing the City Manager to Execute Any Necessary Transactional Documents. BACKGROUND In 2005, the City Council adopted the Public Art Ordinance, which established the Public Art In- Lieu Fee and created the Public Art Fund and the Public Art Committee. Public Art In-Lieu fees, collected from applicable projects in the amount of one percent(1%) of project construction costs as defined in the Ordinance, are placed in the Public Art Fund. These funds may be used for placement of public art on public,property, and are to be used exclusively to: provide sites for works of art; acquire and install works of art; maintain works of art; and support the exhibition of art which is publically accessible. The Public Art Committee is charged with, among other duties required to implement the Public Art Ordinance, reviewing development proposals for public art installations, developing a Public Art Master Plan, and identifying opportunities to obtain and/or purchase art for public display. In 2008; the City entered into a Public Art Agreement with the Voight Family Sculpture Foundation (VFSF) for the placement and display of the Robert Ellison sculpture "Cherry Soda" (the Artwork) in Petaluma (Attachment 2). That agreement was made pursuant to a separate agreement between VFSF and the artist to facilitate placing the artwork at its present location in front of 200 "C" Street, fora period of five years. The agreement included a provision providing the City an option to purchase the artwork for $60,000 or an amount set by a qualified appraiser and acceptable to the parties, whichever is less. Cherry.Soda was installed in November 2008, and has been on display since that time. Pursuant to the agreement, the City reimbursed VFSF Agenda Review: City Attorney Finance Director City.Manager for the cost of installation. Save for periodic cleaning, the City has incurred no other costs related to display. DISCUSSION The Public Art Committee is enthusiastic about acquiring Cherry Soda, and recommends that the City acquire the artwork as the,first in what it contemplates to be Petaluma's collection of public art. Committee members have been in contact with the Ellison family, which wishes to sell the artwork and is willing to do so at a discounted rate. Based on,th'at interest, the Committee solicited the services of qualified.appraisers. Mr. G. B. Carson, of G.B. Carson Art Consultation and Appraisal was selected, and appraised the artwork at no charge. Mr. Carson has provided art consultation and appraisals since 1978, operating his own firm since 1982. His areas of specialization include 19`h and20`h century American and European art, including sculpture. His clients include the Sonoma County Museum of Art, and the di Rosa collection. In Mr. Carson's opinion (Attachment 3), the proposed sale price of$25,000 "represents a sound purchase at [that] cost". He.furthet indicates that based on his research, the artwork would have a higher value, "upwards to $60,000"but which is affected by present market conditions. He concludes that the City ought not to pay more than $25,000 in the current market but that the proposed amount is fair to all parties. Section 10 (a) of the Public.Art Agreement indicates that purchase terms shall be satisfactory to VFSF in its sole discretion. A.member of the Public.Art Committee contacted VFSF with a purchase offer of$25,000, conditioned on Council's approval, whicli has been accepted by VFSF (Attachment 4). In its approval, VFSF has requested that the City pay the artist directly. If the Council authorizes this purchase, and upon receipt of payment, the artist will be responsible for providing the City with.a bill of sale transferring all title and interest in the artwork free from any liens or encumbrances. This item is placed before the City Council at the request of the Public Art Committee, and has their recommendation to acquire the artwork. FINANCIAL IMPACTS The proposed:purchase price of$25,000 would be funded from-the Public Art Fund. The Public Art Committee has further committed to reimbursing the City for its costs associated with cleaning and maintenance from the Public Art Fund. The Public Art Fund has a current balance of$47,693. There+will be no General Fund costs associated with this purchase or subsequent maintenance. ATTACHMENTS 1. Resolution 2. Public Art Agreement 3. Appraisal 4. Voight Family Sculpture Foundation (VFSF) Correspondence Accepting Offer o„, ATTACHMENT 1 RESOLUTION ACCEPTING THE RECOMMENDATION OF THE PUBLIC ART COMMITTEE TO APPROVE THE PURCHASE OF THE CHERRY SODA SCULPTURE IN THE AMOUNT OF $25,000 AND AUTHORIZING THE CITY MANAGER TO EXECUTE ANY NECESSARY TRANSACTIONAL DOCUMENTS WHEREAS,the City Council of the City of Petaluma, by Ordinance 2202 N.C.S., authorized the creation of the Public Art Program; and WHEREAS, the intent of the Public Art Program is to provide public art in public buildings and public open spaces; and WHEREAS, on November 19, 2008 the City entered into a Public Art Agreement with the Voight Family Sculpture Foundation (VFSF) for the installation of the sculpture "Cherry Soda" in front of 200 C Street; and WHEREAS, said agreement provides the City anoption.to purchase "Cherry Soda" for the appraised value of the artwork or $60,000, whichever is less; subject to approval of the sale amount and terms by VFSF; and WHEREAS, said agreement further provides that within five business days of payment, a bill of sale will be provided to the City transferring all title to and interest in the artwork to the City, free of any liens or encumbrances; and WHEREAS, an appraisal performed by G.B. Carson Art Consultation and Appraisals supports a purchase price of$25,000, a price that is satisfactory to VFSF and the artist. NOW, THEREFORE, BE IT RESOLVED by the Petaluma City Council as follows: 1. The purchase of artwork known as "Cherry Soda" for an amount of$25,000 is authorized. 2. The purchase price shall be paid directly to the artist; Robert Ellison, from the Public Art Fund. 3. Within five business days of receipt of payment, the artist shall provide a bill of sale, transferring all title to and interest in the artwork to the City, free of any liens or encumbrances. 4. The CityManager shall be authorized to execute any transactional documents necessary to complete the purchase pursuant to these terms. ATTACHMENT 2 CITY OF PETALUMA PUBLIC ART AGREEMENT (Article 19.6,Ordinance 1072 N.C.S.Resolution No 2005-091 N.C.S.) This Agreement("Agreement")is execute d q this day of MO() , Oper, by and between the Voigt Family Sculpture Foundation("VFSF") and City of Petaluma("City") The VFSF and City are collectively referred to as the "Parties." Recitals: WHEREAS,VFSF has entered an agreement with Robert Ellison, ("Artist"), owner and creator Dian artworlc entitled "Cheny Soda"("Artwork")pursuant to which agreement VFSF is authorized to enter this Agreement providing for cooperation.of the Parties concerning the placement and display at the Display Location specified in this Agreement. TheArtwork is further described,in Exhibit A,which is attached to and made a part of this Agreement; and WHEREAS, City has,adopted as part of City's Zoning Code(Ordinance No. 1072 N.C.S.)Article 19.6 entitled"Public Art,"("Enabling Legislation") establishing a public art program requiring public art or payments in lieu of publican as part of all new development in certain commercial and industrial zones in the City and authorizing creation of a Public Arts Committee("Committee")responsible for building and maintaining a meaningful public arts program ("Program")in the City; and WHEREAS,City has also adopted Resolution No. 2005-041 N.C.S. ("Implementing Legislation")establishing procedures and guidelines governing Committee's oversight over the Program; and WHEREAS, VFSF has offered the Artwork for inclusion in the Program; and WHEREAS, the Committee supports inclusion of the Artwork in the Program and display of the Artwork in the public right of way in front of 200 C Street ("Display Location"), subject to the terms of this Agreement; and WHEREAS, the Display:Location is public fee property or right of way owned by the City, and tie Display Location is-further described in Exhibit B which is attached to and made part of this Agreement; and WHEREAS, VFSF and City desire to establish the.terms and conditions that will govern, pursuant to the requirements,of the City Enabling.Legislation and Implementing Legislation;participationoftlie Artwork-in the Program, and;iirparticularto establish the terms and conditions governing:" transportation, installation, display;maintenance,removal,return Petaluma Public Art Agreement Cherry Soda By Robert Ellison 1 y� " 1 shipment,liability, and insurance.conceming participation oftlie Artwork in the Program and possible sale of the Artwork to the City; and WHEREAS, the City Council,by Resolution No. 2008-100 adopted June 16, 2008 has authorized the City Manager to execute this Agreement on behalf of the City; NOW, THEREFORE, in consideration of the mutual covenants and conditions hereinafter contained, the Parties hereby agree as follows: Agreement: 1. Recitals Part of Agreement: The Parties understand and'agree that the Recitals above are true and correct and are made a part of this Agreement. 2. Grant of License to Display Artwork: City hereby grants VFSF a license("License") to display the Artwork at theDisplay Location, subject to the terms of this Agreement. The parties understand and agree that the.License granted to the VFSF to display the Artwork at the Display Location under this Agreement conveys only license rights, and that this Agreenient does not convey any other interest or estate in the Display Location, and that VFSF's rights under this Agreement are personal to the VFSF, non-transferable or assignable (except as otherwise specified in this Agreement), and terminable by the parties and revocable by the City, in accordance with the terms of this Agreement. Nothing in this Agreement creates or may be construed to create rights of the VFSF that are property interests or estates, such as lease or easement rights, nor may any conduct of a party or of the parties create or be construed to create such property interests or estates, or to create a license coupled with an interest or an irrevocable license. As a material;element of the consideration for this Agreement, VFSF hereby waives, releases and disclaims on behalf of VFSF and any successors and assigns,any interest or estate in the Display Location (except for the license granted hereunder), including,but not limited to, any right or claim to a license coupled with an interest or an irrevocable license, arising or alleged to arise in connection with-this Agreement. 3. Grant of License Conditioned on Obtaining All Required Permits and Approvals: The Parties understand and agree:that,the License granted;pursuant to this Agreement is conditioned on the VFSF obtaining all required permits and approvals from any government agency or body, including, but not limited to, the City, with jurisdiction over display of the Artwork at-the Display Location. Permits that may be required for display of the Artwork at the Display Location include,but are not limited to, encroachment permits. The design and constriction of any proposed improvement or structure for displaying the Artwork at the Display Location will be subject to City approval and may also be subject to separate,permitting requirements. The City will cooperate with and assist the VFSF in obtaining City permits that may be:required for display of the Artwork at the Display Location. Petaluma Public Art Agreement Cherry Soda By Robert Ellison 7 1) 4. Term and Termination of Agreement: a. Expiration: This Agreement shall commence on the date of the last signature of the Parties ("Commencement Date") and continue in effect until 5 years thereafter or receipt by the City of a bill'of sale confirming purchase of the Artwork by the City in accordance with Provision 10, below, ("Expiration Date") unless earlier terminated in accordance with this provision 4 or renewed or extended in accordance with provision 15, below. The term of this Agreement may only be extended by a writing signed by both parties. b. Termination Without Cause: The City reserves the right, at any time without cause, to revoke the"license,granted under this Agreement, direct that the Artwork be removed, require the'VFSF to load and return ship the Artwork and terminate this Agreement by giving 180 days advance written notice to VFSF. c. Termination for Cause: The City also reserves the right to,revoke the license granted under this Agreement, direct that the.Artwork be removed,require the VFSF to load and return ship the Artwork and terminate this Agreement for cause,by giving 90 days advance written notice to VFSF. In its sole discretion, City,may permit VFSF a specified time within which to cure the default giving cause for termination of this Agreement. For purposes of this paragraph, "cause"shall be deemed the breach by the VFSF of a material term or condition of this Agreement-which is not due to facts or circumstances which are caused by or within the control of the City. 5. Obligations.of the Parties:Concerning Shipment, Unloading,Installation, Signage, Maintenance, Removal and Retti"rn Shipment of Artwork: The parties-will perform their respective obligations under this provision in accordance with the Schedule to be detennined between theparties and.attached to and made a part of this Agreement as Exhibit C. a. Obligations of VFSF: VFSF will be responsible for the following: 1. Shipmentof the Artwork to the Display.Location and unloading of the Artwork at the Display Location at a date and time and in a manner coordinated with and approved by the:City. 2. Preparation of the site at the Display Location and construction of installation improvements, if any, at the Display Location. Said improvements may include, but are not limited to, any foundations, footings, or concrete base as required per structural engineering specifications approved by the City. 3. Installation of the Artwork at the Display Location in coordination with City subject to City review and approval of installation design, engineering and construction. Petaluma Public Art Agreement Cherry Soda By Robert Ellison 3 4. Coordinating with the City concerning any signage related to the Artwork. 5. Removal of the Artwork from the Display Location in coordination with City upon the expiration or termination of this Agreement. 6. Loading and return shipment of the Artwork upon the expiration-or termination of this Agreement(unless expiration is due to sale of Artwork to City pursuant to provision 10) at a date and time and in a manner coordinated with and approved by the City. 7. Provision of cleaning instructions to the City for minor maintenance of the Artwork. Cleaning instructions shall,include appropriate methods by which City personnel can safely remove bird guano or graffiti without risk of damaging the Artwork. 8. All necessary repairs of the Artwork. For the purposes of this section, "repairs" shall be defined as actions such as repainting of the Artwork or repair of dents and other damage. 9. Design and installation of signage identifying the Artwork and "no climbing" signs at Display Location in coordination with the City. b. Obligations of City: City will be responsible for the following: 1. Coordinating shipment and unloading of the Artwork with the VFSF, including approving date and time of unloading. 2. Provision of all necessary permits and waiver or payment of any required permitting fees. 3. Inspection of the Artwork to ensure the Artwork can be safely displayed at the Display Location. 4. Final approval of installation design and construction, if any, in coordination with the VFSF. 5. Necessary minor maintenance of the.Artwork during the period the Artwork is displayed at the Display Location. For the purposes of this agreement"minor maintenance"shall be.limited to actions such as removal of bird guano or graffiti, in a manner specified in the cleaning instructions provided by the VFSF in accordance with section 5.a.7 above. Minor maintenance shall,not include painting or any other repair in accordance with provision 5(a)(8). 6. Coordination with VFSF concerning loading,and shipment of the Artwork upon the expiration or termination of this.Agreement, (unless expiration is due to sale of Artwork to City pursuant to provision 10), including approval of the dateiand time of loading: 7. City agrees to proniptlyreport to VFSF whenever it becomes aware of any damage to time Artwork or injury to person or,property in connection with the Artwork. City agrees to cooperate with VFSF in its repair efforts. 8. City agrees to reimburse the VFSF $4500 for the cost of installation, as stipulated in provision 6.114. below, upon receipt of an invoice from the VFSF for said amount. Petaluma Public Art Agreement Chevy Soda By Robert:Ellison 4 1 6. Costs: a. Costs Borne by VFSF: VFSF will be responsible for the following costs pursuant to this Agreement: 1. Obtaining authorization of the Artist to enter.this Agreement providing for the cooperation of the City and'the VFSF concerning placement and display of the Artwork at the Display Location. 2. Shipment of the Artwork to the Display Location and unloading of the Artwork at the Display Location. 3. Site preparation at the Display Location ands construction of installation improvements, if any, at the Display Location:Said improvements may include, but are not limited to any foundations,footings,or concrete base as required per structural engineering specifications. 4. Installation of the Artwork at the Display Location. 5. Design and installation of signage identifying the Artwork and "no climbing" signs and related improvements, if any, concerning the Artwork at the Display Location. 6. Removal of the Artwork from the Display Location and needed restoration of the Display Location, if any, upon the expiration or termination of this Agreement, (unless expiration is due to sale of Artwork to City pursuant to provision 10). 7. Loading and return shipment of the Artwork upon the expiration or termination of this Agreement, (unless expiration is due to sale of Artwork to City pursuant to provision 10). 8: Repairs and maintenance of the Artwork other than minor maintenance costs that will be borne by the City in-accordance with provision 5(a)(8), and/or insurance covering the VFSF's interest in the Artwork, for the period from and includingloading and shipment to the Display Location, through the entire period the Artwork is displayed at the Display Location, and.loading,and return shipment from the Display Location upon the expiration or termination of this Agreement. The VFSF understands.and agrees that the City will provide no insurance coverage for the VFSF's interest in or the value of the Artwork. b. Costs Borne.byCity: City will be responsible for the following costs pursuant to this Agreement: 1. Necessary minor maintenance of the Artwork, such as removal of graffitilorbird guano, in accordance with provision 5(b)(5). 2. Subject to VFSF's representation in provision 8, insurance coverage for liability to third parties for personal injury or property damage arising from:display of the Artwork at the Display Location,during the entire period the Artwork is displayed at the Display Location under theCity's-existingliability coverage. 3. City shall reimburse the VFSF in the amount of$4500 for the cost of installation upon receipt-of an invoice for said amount. Petaluma Public Art Agreement Cherry Soda By Robert Ellison 5 7. Remedies on Failure to Remove Artwork: If VFSF fails to remove or negotiate a new''removal date and return ship the Artwork in accordance with this Agreement within 30 days after prior written notice from the City to VFSF of the time for removal and return shipment of the Artwork, the City may remove the Artwork and return it to VFSF or to storage in the name of VFSF and recover from VFSF the City's actual costs,in such effort plus interest thereon at the legal rate from a date which is 2 business days after City gives'VFSF written demand for payment, until the date that reimbursement is made by VFSF to the City. 8. Representations Of.the Parties: The Parties make the following representations pursuant to this Agreement: a. Representation of VFSF: By executing this Agreement VFSF represents and warrants to the City on behalf of VFSF and VFSF's successors and assigns that VFSF has sufficient legal authority with-respect to the Artwork to bind VFSF concerning all the obligations, covenants, terms and conditions that apply to VFSF pursuant to this Agreement, and that this representation and VFSF's execution of this Agreementis in derogation of the interest of no other person or entity with respect to the Artwork, including, but not limited to, the Artist. VFSF understands and agrees that this'representation of VFSF is a material element of consideration of this Agreement:and that City's execution of this Agreement and inclusion of the Artwork in the Program are in reliance on VFSF's representation. b. Representation of City: By executing this Agreement City represents and warrants to the VFSF on behalf Of City and City's successors and assigns that City has sufficient legal authority with respect to the Display Location to bind the City concerning all the obligations, covenants, terms and conditions that apply to City pursuant to this Agreement, and that this representation and City's execution of this Agreement is in derogation of the interest of no other person or entity with respect to the Display Location. The City understands and agrees that thisrepresentation-of City is a material element of consideration of this Agreement and that the VFSF's execution of this Agreementand.making available the Artwork for the Program is in reliance on City's representation. 9. Indemnities and Releases: a. Indemnity and Release,by VFSF: Subject to City's maintenance responsibility under paragraph=5 b.S and the City's representations;inprovision 8, VFSF agrees toindemnify; hold harmless, defend, release and forever discharge City and its officers, officials, employees;;agents'and volunteers (collectively, ``City Indemnitees") from and against any and all claims, actions;'causes,of.action, obligations, liabilities, indebtedness, breach of duty, claims for:injunctive relief and any other equitable relief, suits, liens, losses,;costs or expenses, whether known or unknown, fixed or""contingent, liquidated, or unliquidated, suspected or unsuspected, foreseen or unforeseen;-(including,without limitation, attorneys fees and costs and fees of litigation and liability of or to the VFSF) (collectively, "Liability") that arise out of, are Petaluma Public Art Agreement Cherry Soda By Robert Ellison 6 1 based upon, or,relate in any way to the Artwork pursuant to this.Agreeinent, including,but not limited to,the shipment,"unloading, installation;display, removal, reloading, and return shipment of the Artwork, or VFSF's failure'to comply with any of its obligations contained in this Agreement. Subject to the VFSF's representation in provision 8, and notwithstanding the foregoing, the VFSF's obligation to indemnify,hold harmless, defend, release and forever discharge'the City Indemnitees in-accordance with this provision shall not apply to Liability to third parties for personal injury or-property damage arising from display of the Artwork at the Display Location from the time the Artwork is installed at the-Display Location in accordance with this Agreement to the tithe the Artwork is removed from theDisplay Location in accordance with this Agreement. Further, and notwithstanding the foregoing, to the extent that this Agreement is a"construction contract" as defined-in California Civil Code section 2783, as amended from time to time, the VFSF's duty to indemnify in accordance with this provision shall not apply when prohibited by California Civil Code section 2782. b.. --- Indemnity and Release by City: Subject to VFSF's representation in provision 8, City agrees to indemnify, hold harmless, defend, release 'and forever discharge VFSF and its officers, officials, employees, agents and volunteers, and the artist (collectively, "VFSF Indemnitees")from and against-any and all Liability that-arises out of, is based upon, or relates in any way to Liability to thud parties for personal injury or,property damage arising from display of the Artwork at the Display Location from the time the Artwork is installed at the Display Location in accordance with this Agreement to the time the Artwork is removed from the Display Location in accordance with this Agreement. The City agrees to promptly report directly to VFSF whenever any damage occurs to the Artwork or injury occurs to a person on account of the Artwork. The City agrees to cooperate with VFSF and the artist as assessments of damage are made:and to assist where possible as repairs are performed. c. Waiver of Civil Code Section 1542: The releases by the VFSF and the City pursuant to this provision 9 are, intended to extend to all Liability', (mown or unknown, suspected or unsuspected, and each Party expressly waives and relinquishes any rights and benefits which it has or may have under Section 1542 of the Civil Code of the State of California, which provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT-TO EXIST TN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH.IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR" 10. ,option to Purchase Artwork: During,the.tenn,of this Agreement,:City will have an option to purehiase the Artwork.("Option")-from the VFSF free of any liens or encumbrances or interests of any third party in accordance with the following: Petaluma Public Art Agreement Cherry Soda By Robert Ellison 7 lD a. Purchase Price: The;purchase price will be$60;000.00, or anramount set by a qualified appraiser and acceptable to the parties, whichever'is less, or such other teens of payment as shall be satisfactory to VFSF in its sole discretion. b. Exercise of Option: To exercise the Option, City will provide the VFSV written notice of the City's intent to exercise the Option at least 180 days prior to the expiration of this Agreement Within 5 business days of VFSF's receipt of payment in full of the purchase price in accordance with this,provision,VFSF will provide the City a bill of sale executed by VFSF or an authorized representative transferring all title to and interest in the Artwork to the City,free of any liens or encumbrances of any kind. c. Expiration of Agreement Upon Receipt of Bill of Sale: In accordance with provision 4, this Agreemenf:-will expire upon the City's receipt of a bill of sale in accordance with--this provision evidencing the City's completed purchase'of the Artwork. d. Right to OfferSculpture for Sale; Right of First Refusal: City agrees that notwithstanding the City's Option;pursuant to this provision, the Artist may offer the Artwork for sale while it is on display under this Agreement. City agrees to refer any prospective buyers it becomes aware of directly to VFSV. City will not be entitled to any commission on the sale of the Artwork sold as a result of the display under this Agreement. In the event that VFSF receives an acceptable, bona fide offer,for purchase of the Artwork from a third party, VFSF shall provide the City with written notice of such offer and its teens and conditions (the"RFR Notice"). The City shall have 60 days from receipt of the RFR Notice within which to exercise this tight of first refusal to purchase the Artwork on the same terms and conditions as set forth in the RFR Notice. In the event that the.City fails or declihes:to.exercise this right within said period of time, then this right shall lapse and VFSF shall be free to sell the Artwork to the third party purchaser on said teems and conditions,but subject to this,Agreement, excluding the terms of this provision. In the event the Artwork is sold during the teen of this Agreement to a third party, the Artwork shall remain at the display location, and the rights and obligations of VFSF and the City shall continue unchanged (except for lapse of the City's Option and right of first refusal under this provision) until expiration or termination of this Agreement. 11. Statutory Notice,Regarding Possessory Use Tax: VFSF is advised that under California Revenue and Taxation CodeSection 107.6, execution of this Agreement may create a possessoryinterest in VFSF'subject to property taxation. VFSF hereby agrees that if such possessory'interest is'creatediand is subject to property taxation, VFSF shall be solely responsible for the payment of said property taxes levied on any such interest. 12.. Survival: The parties' respective obligations in provisions 7, 8 and 9 will survive any termination or expiration of this Agreement. 13.. Notice: Notice to the parties under this Agreement will he given as follows: Petaluma Public Art Agreement Cherry Soda By Robert Ellison 8 t` To VFSF: Attn: Administrator Voigt Family Sculpture Foundation 400 Breezewood Drive Geyeserville. California 95441 (707) 857-1733 To City: Community Development Director City of Petaluma 11 English Street Petaluma, California 94952 (707)778-4301 14. Attorneys Fees: In the event either party brings an action to interpret or enforce any provision of this Agreement, the prevailing party in such action, in addition to any other damages or costs to which it may be entitled, shall recover its reasonable attorneys fees incurred in such action. 15. Entire Agreement;:Modification: This Agreement contains the entire agreement of the parties and supersedes and replaces all prior agreements of the parties, whether verbal or written, as to the subject matter hereof The terms of this Agreement may only be changed by a writing signed by representatives authorized to bind each party. 16. Governing Law'and'Venue: This Agreement shall be governed by the laws of the State of California. Any action arising from this Agreement will be veined in a court of competent jurisdiction in the County of Sonoma, State of California. 17. Binding.Effect: This agreement,except as otherwise specifically provided herein, shall be binding on and inure to the benefit of the parties and their respective successors and assigns. VFSF n By: l ' Date: /�— OP--Judy igt, Founder THE CITY OF PET.ALUMA Ott •�_V Date: �J J�dd John C. Brown, City Manager Petaluma Public Art Agreement Cherry Soda By Robert Ellison 9 l�' Attest: te ( J 11, Claire Cooper,City Clerk Approved as to form: no Eric Daily, City At orney 10b1108.3 Petaluma Public Art Agreement Cherry Soda By Robert Ellison . ._ ..... ..__ _. 10 kS Exhibit A Artwork • (Page 1 of 2) The Artwork subject to this Agreement is a sculpture entitled"Cherry Soda."The sculpture is 16 feet, 2 inches tall, and approximately 9 feet in diameter at the widest point, which is the base. Cherry Soda is a nostalgic throwback to the 1950s, especially appropriate for downtown Petaluma. The imagery includes a cup with pink foam, a straw and a gingham table cover. The Artwork is made of filly welded A36.carbon steel, painted with Devoe Bar Rust 235 epoxy primer and Devoe Dell-thane 379 aliphatic urethane top coat. A graphic depicting the Artwork is attached to and made a part of this Exhibit. The Artist indicates that the Artwork has a value of $60,000.00. • Petaluma Public Art Agreement Cherry Soda By Robert.Ellison • 11 t Exhibit A Artwork (Page 2 of 2) y" �`. - 4,� m?�.�r x4.\‘‘,;,,,,:/::- 'Y :3 Ssksr - t�`3'". }.-1,41,--,7:71: . ,1 ,' 3" 9�,r,'q,4410,,s-�'.�''. �'' .. 4.\`,a,°&' €tizte i '',.,,' a aura= - c '4 r:, a u�` ,` -'x�a�,ar ' .s a� . £� z « 3 , • r sf r�Y ss'* � lai7 q $ `qe a i i!" « Q� 1' i Y4 rc ' -i-, Via r=fir fi .R � _" g r _ a - t: x " 2 ri v y r eL x k t m ` g ;a '` m d-4% " ' 3 n a n" Q .d , r- c P t F it*I 234.maa tf ; , u2 r � 1T F sl - .e e - t k 4^ t F xx ' vv '' � a a.'' - � b- v : � . *. .lin s , '� d F _ k ate-.m �$ � '^a ' .0 . 4t, 6 ti ak:i` t a,4 0511 °R� -r .cam-y d F S L t^,c E T • t C � ,tY S P t 3 x d R ^z bl C' A L b i W Y te s1 s Tr Y 7 J 4 t dt ut.n ' 5r Fu 4 t . e fi.� t Y- Yn v� } ! „- x 2 lt elite.Y-* y - Petaluma Public Art Agreement Cherry Soda By Robert Ellison • ? • Job: • �1Associates &to—i t�n �<e) c structural en sneer n of • • sK -/ 1 � • U db pbtY �V .. a oga.t195i,$�n t CT" , y� i „k d}*r 4 tr u. °� g-tra, den�io 3 . ' r a t, 3EagleCem er 'i , 3 d t'^T J 4tk `� t I zF4'�y+ ,�I 4�.y ii It t v ,?iy �.. t �n i- 1'�'tir-,8+'z w t t @/!gr ,a ,:,.v4.; a} N 4 r -k ,.4i, _ s J. } z*r'Sdwi3lt _ S( tp 1 l 7 tit tLL t>i rC � fAe1jkt-Ali J1FUi tr k ., _ N Y Y of R a,r'n`1r'i*rtit'e"K'4∎,-.11. i•ti�ni i�' d f t} i ai �� L tits a n r E i Fayt Y tR4p a 1 f"i t'j'hk3 4t l It + }h t $tsiltl . rk4 9 y,k'Ski,r,:� ,at� { j'gitiet0. 4.x Y,;' Z' 5 '� �▪ h t 4,---••••;-1-,:w. } o-F.411 {�',t (�.3,,', .4`�r „ erSr rz `$3 .Ct Attlif '` j"n ( x ra t' 1 ��i� r Au ! I rd`S' k �raviti y l / * a ^�S1,�, ' i t - t r tO-, Is! J A"Tr L'^'T`= • G-- r � 4:'The Great. S • \.f ,i0i� •;• -•V'kEst�- i„ e ', , is 5 t,a .x t 1 G S d xy ▪ ` a .3 t a fl :$ 1Po $ 4L , i-r. t at t h ' T -. � f Sr E. . N t f t)}t� p ...: t lop ,4 O et ; r•✓ t.k1 , 3 Lj iz� t9t i u $ Jpp wref s! , t t f S t a qy 1 CT -t- ! 3. u t '3 !G f r �� 't i , T �5 i Po t� 1 F- a. txr 2-2: �. '43 a P . r ai �! • $^r r. ,, a r l .5 tlt� ' 4a y - ,, t 1 4 • ..rl d O 1■FY 4�nl c ar .rr� ; .7Q QUr r. H h S�F f 1 ,� ;:,,A,,,.c , L°,� if .. L-i n r 0 aS} 3 r n+y";44},r g VIti;, r.t I�> t t r. .;r '1 f 3t 'l �'uY $s s ,�., r Walnut Park e!g/ t rtr 1 f i� F{ lry +; �.. t a r•,y I .a+ ro S 4 ‘,1',,-,-:;,,,;,,,,,,,,,-,-;,•- t =t . t�xE rs'r l V V l i t tg `u t A..,� 3 .,�/` < , c r } iwy �3 M�21 .�Al F y sri Y t Sft „rh� ,� t4 a 'ar R s ,4tf 6 1�. 'i ° v , 7I J n o �O rr --:#' y m ,_T- i '$x t a t . t Q ',.��j i - eu� 0 h- a' .. � � �`� T % I ii 11Is?ldy • �Lo CC-7 ion • l tW Exhibit+C. Installation.Schedule Installation will occur on Monday, November 24, 2008. Petaluma Public Art Agreement Cherry Soda By Robert Ellison 14 G. B. CARSON ATTACHMENT 3 ART CONSULTATION & APPRAISALS P.O. Bo. 5502. Bcrkcic), Calilorniti 94707 tel 510-526-1950 wwmai:anon.con. 13 January 2012 Collette Michaud Petaluma Public Art Committee Dear Collette, I have reviewed all of the pertinent documents relating to the prospective acquisition of Cherry Soda, Robert Ellison's large painted steel sculpture and have concluded that at $25,000 the work represents a sound purchase at,this cost. 1 have researched Ellison's history of public and private commissions and their accompanying:sales records which would indicate that Chem,Soda would ordinarily have a far higher cost,ofupwards to $60,000 but that under present market conditions the City ought not to pay anything,higher and that at the proposed amount a "win-win" situation is achieved for all parties. Yours truly, G. B. Carson 1'0 G.B. Carson Experience Page 1 of 1 , ' t , : n t .. is t ty .G t 7 ry . , i rjtt ._ µ n•a t o f ° p✓�S n : r •a. L' P a' • 'Cu ! �ry7u .n ... 4n .. G BCarson 4Art'Consultation &Appraisals ! C.B.Carson was horn in Montana and graduated in 1977 from • the History of Art program at the University of California. Berkeley.In 1978 he joined the San Francisco firm of.Dr lay 'experience Joseph Armstrong Baird,Jr An Consultation and Appraisals. Ile started his own an appraisal office in 1982.He has been ° hased in B rkely,,since 185.and also in Townsend Montana yareas of specialization. Stine 200,. Mi Carson has been associated with mairySan F Francisco an eallenes and art publishing concerns.and has acted r d ti}T✓� as ace t and business man tger for several prominent Bay Area 'references and,Montana artists.Extensive,ongoing travel to North American and European galleries and museums has end ched his familiarity with art and the ad market. ontact-•" 'home'• - L' l z C r Ixt41' el it 4 I, • http://gbcarsoncom/experience:html �� G.B. Carson Areas of Specialization Page 1 of 1 rn, fY :. .,Sys, ) o t•� - 'yy sy �d.Vr 4 ray: l y� r`t nt 7" f '. y 9f. r , . .11 �. ,Ci.B.CarsOn Art Consultation &Apjrrnlsals "°;, °r. "„ ay G.B.Carsoris areas of specialization are 19111 and 20th century Ani erican and European an inet iding paintings,sculpture, q ri y drawings:prints and photographs.dvith a particular emphasis on art of California'and the West.li isa appraisal services include experience PP' reports for estates,insurance and charitable donations.Inflirty +C ' years of practice.his clients include notable collectors,major areas of specialization corporations,public institutions and an dealers Leading museums in the Bay Area and Montana regularly tefei'clients to -references 'contact, n,M , home • http://gbcarson.com/areas:htnil V O ATTACHMENT 4 • Brown, John From: Debra Lehane [dnlehane @comcast;net] Sent: Monday, January,23, 2012 8:24 AM To: 'Collette Michaud' Cc: 'Annee Booker Knight';'Mary Dooley; Brown, John; 'Shanta Anderson'; 'Robert W. Ellison' Subject: RE: Cherry Soda Purchase Hi Collette, I've checked with my team at VFSF and more importantly, I've talked with Robert Ellison. We are accepting the offer of $25,000 for Cherry Soda. We ask that you work directly with Robert to completethe transaction rather than sending payment to VFSF. We are very Happy that Petaluma is acquiring this work by Robert. Thank you for your efforts toward making this happen. My best, Debra LeFane Curator Voigt Family Sculpture Foundation www.voigtfoundation.com (707) 939-1908 From: Collette..Michaud [mailto:crmichaud©comcast.net] Sent:Thursday, January 19, 2012 11:47 AM To: Debra Lehane Cc: Annee Booker Knight; Mary Dooley; John Brown Subject: Cherry Soda Purchase Dear Debra, According to the;Agreementbetween the City and the Voigt Family Sculpture Foundation(VFSF), Section 10 sub requires'thatthe purchase price terms of"Cherry Soda" need to be satisfactory to VFSF. We received an appraisal (enclosed) of"Cherry Soda" from Gary Carson, who was recommended to us by you. Based on his appraisal, we are pleased to offer the VSFS $25,000 for Robert Ellison's "Cherry.Soda" pending approval of the acquisition by the City Council. If it is approved, the soonest the allocation of funds can be approved is February 27th. If the Voigt Foundation is amenable to this offer, a formal Letter of Agreement stating this amount will be mailed to the VFSF. We look forward fo purchasing "Cherry Soda" and making it the first acquisition by the Public Art Committee, formecfin 2005, and the the first piece in the City of Petaluma's permanent public art collection! Please feel free to call me if you'd like to discuss in person. 1 Kind regards, Collette Collette Michaud Petaluma Public Art Committee crmichaud @comcast.net 707-781-3131 2