PUBLIC ARTWORK LOAN AGREEMENT THIS AGREEMENT is made and entered int n between the Twn f Mraga ( Twn ), a municipal crpratin, and ( Artist/Dnr ). RECITALS WHEREAS, pursuant t Reslutin 91-2015, the Twn Cuncil established an Art in Public Spaces Plicy fr the Twn; WHEREAS, the plicy authrizes the Twn t acquire artwrk fr public display thrugh leases, lans, and dnatins f artwrk; WHEREAS, n Nvember 18, 2015, the Twn Cuncil adpted Reslutin N. 91-2015, which authrized acquisitin by lan f the artwrk described in this Agreement; NOW, THEREFORE, Twn and Artist/Dnr agree as fllws: 1. Purpse f Agreement Artist/Dnr, as the sle wner and creatr f the artwrk entitled ( Artwrk ), hereby agrees t lan Artwrk t the Twn fr the perid f time specified in Sectin 2 f this Agreement. The Public Art Applicatin prepared by Artist/Dnr, which describes the Artwrk and includes a phtgraph f the Artwrk, is attached and incrprated int this Agreement as Exhibit A. In cnsideratin f Artist/Dnr s lan f the Artwrk t Twn, Twn agrees t publicly display the Artwrk (insert area fr display), t credit Artist/Dnr fr the lan n a sign psted with the Artwrk, and t insure the Artwrk against lss r damage as specified in Sectin 6 f this Agreement. This Agreement is intended t implement and shall be interpreted in accrdance with the terms f the Twn f Mraga Art in Public Spaces Plicy, which is attached and incrprated int this Agreement as Exhibit B. 2. Effective Date and Term f Agreement This Agreement shall be effective n the date that it has been signed and executed by bth parties. It shall remain in effect until, with a pssible ne-year extensin, unless it is terminated earlier pursuant t Sectin 9 f this Agreement. The term f this Agreement shall be extended by ne year, t, if the Twn and Artist/Dnr s agree in writing prir t. At the end f the term, the Twn shall remve the Artwrk and return it t the Dnr, as prvided in Sectin 10 f this Agreement. 1
3. Payments a. Artist/Dnr shall lan the Artwrk t Twn fr the limited term f this Agreement specified in Sectin 2 withut the payment f cmpensatin by the Twn. b. Artist/Dnr agrees t pay any and all csts incurred by the Twn in cnnectin with the installatin, maintenance, and remval f the Artwrk, as prvided in this Agreement. 4. Artist/Dnr s Representatins and Warranties a. Artist/Dnr represents and warrants that Artist/Dnr is the riginal and nly creatr f the Artwrk. b. Artist/Dnr represents and warrants that Artist/Dnr is the sle wner f the Artwrk. Artist/Dnr further represents and warrants that the Artwrk is free and clear f any liens and that there are n utstanding disputes in cnnectin with prperty rights, intellectual prperty rights, r any ther rights in the Artwrk r parts f the Artwrk. Artist/Dnr represents and warrants that Artist/Dnr is the sle wner f any and all cpyrights and ther intellectual rights pertaining t the Artwrk. c. Artist/Dnr represents and warrants that the Artwrk will nt pse a danger t public prperty, health r safety in view f the pssibility f misuse, if such misuse is in a manner that was reasnably freseeable at any time during the term f this Agreement. d. Artist/Dnr represents and warrants that freseeable expsure t the elements and general wear and tear will cause the Artwrk t experience nly minr, repairable damage and will nt cause the Artwrk t fall belw an acceptable standard f public display; e. Artist/Dnr represents and warrants that general rutine maintenance and repair f this Artwrk will maintain the Artwrk within an acceptable standard f public display. f. Artist/Dnr represents and warrants that the installatin and remval f the Artwrk will nt unacceptably damage r alter the Artwrk. g. Artist/Dnr represents and warrants that the ttal value f the Artwrk is $, which is less than the $50,000 maximum value established by the Twn f Mraga Art in Public Spaces Plicy. 5. Intellectual Prperty and Publicity Rights a. Twn s Intellectual Prperty License. Artist/Dnr grants t Twn, and t Twn s agents, 2
authrized cntractrs and assigns, an unlimited, nn-exclusive and irrevcable license t d the fllwing with respect t the Artwrk: (1) Use and Display. Twn may use and display the Artwrk fr the term prvided in Sectin 2. (2) Reprductin and Distributin. Twn may make and distribute, and authrize the making, display and distributin f, phtgraphs and ther tw-dimensinal reprductins f the Artwrk. Twn may use such reprductins fr any Twn-related purpse, including advertising, educatinal and prmtinal materials, brchures, bks, flyers, pstcards, print, bradcast, film, electrnic and multimedia publicity, dcumentatin f Twn s Art in Public Spaces Plicy, and catalgues r similar publicatins. Twn shall ensure that such reprductins are made in a prfessinal and tasteful manner, in the sle and reasnable judgment f the Twn. b. Third Party Infringement. The Twn is nt respnsible fr any third party infringement f any cpyright t the Artwrk held by Artist/Dnr and is nt respnsible fr prtecting the intellectual prperty rights f Artist/Dnr. c. Credit. On each Twn reprductin f the Artwrk, the Artist/Dnr shall be acknwledged, using designatins prvided by the Artist/Dnr, t be the Artist/Dnr f the Artwrk. d. Trademark. In the event that Twn s use f the Artwrk creates trademark, service mark r trade dress rights in cnnectin with the Artwrk, Twn shall have an exclusive and irrevcable right in such trademark, service mark, r trade dress. e. Alteratin. If Twn alters the Artwrk withut Artist/Dnr s cnsent in a manner that is prejudicial t Artist/Dnr s reputatin, Artist/Dnr retains the right t disclaim authrship f the Artwrk. 6. Liability fr Damage t Artwrk and Risk f Lss a. Twn shall insure the Artwrk against damage and lss thrugh the Municipal Pling Authrity ( MPA ). If the Artwrk is lst r damaged while n public display, Twn s liability (including the liability f MPA) shall in n event exceed the value f the Artwrk stated in Sectin 4 f this Agreement. b. The risk f lss r damage t the Artwrk shall be brne slely by Artist/Dnr until the Twn takes pssessin and accepts the Artwrk. Once the Artwrk has been remved frm public display pursuant t this Agreement, the risk f lss r damage t the Artwrk shall be brne slely by Artist/Dnr. 3
7. Repair and Maintenance a. Artist/Dnr shall be respnsible fr all reasnably necessary maintenance and repairs f the Artwrk during the term f this Agreement. Maintenance includes, but is nt limited t, rutine cleaning f the Artwrk as necessary t maintain the Artwrk in a cnditin apprpriate fr public display and any and all actins taken t preserve, restre, r cnserve the Artwrk. b. Prir t cnducting any maintenance r repairs n the Artwrk, Artist/Dnr shall btain the apprval f the Twn. Artist/Dnr shall request apprval f the Twn in writing, at the address prvided in Sectin 18 f this Agreement. The Artist/Dnr s request shall identify the methd(s) f maintenance r repair prpsed, the persn(s) wh will perfrm the repair r maintenance, and the time perid in which the repair r maintenance will be perfrmed. If the Twn apprves the request, it may impse cnditins n that apprval as necessary t prtect public prperty, health and safety. c. Maintenance and repairs must be perfrmed in a manner that des nt damage public prperty. Artist/Dnr is liable t the Twn fr any damage t public prperty caused by maintenance r repair activities. d. Twn shall nt be liable t Artist/Dnr fr any damage t Artwrk caused by maintenance r repairs undertaken by Artist/Dnr r by the failure t undertake any such maintenance r repairs. 8. Indemnificatin Artist/Dnr shall indemnify, prtect, defend and hld harmless the Twn and its subdivisins, fficials, emplyees and agents frm and against all liabilities, bligatins, lsses, damages, judgments, csts r expenses (including legal fees and csts f investigatin) (cllectively Lsses ) arising frm, in cnnectin with r caused by: (a) any persnal injury r prperty damage caused, directly r indirectly, by any act r missin f Artist/Dnr and/r Artist/Dnr s agents, emplyees, r assigns; (b) any infringement f patent, cpyright, trademark, trade secret r ther prprietary right; r (c) any infringement f Artist s rights under 16 U.S.C. 106A, 16 U.S.C. 113, Civil Cde 987 et seq, r similar state, federal, r internatinal law. Ntwithstanding the freging, Artist/Dnr shall have n bligatin under this Sectin with respect t any Lss that is caused slely by the active negligence r willful miscnduct f the Twn and is nt cntributed t by any act r missin (including any failure t perfrm any duty impsed by law) by Artist/Dnr. Artist/Dnr acknwledges and agrees that its bligatin t defend in this Sectin: (i) is an immediate bligatin, independent f its ther bligatins hereunder; (ii) applies t any Lss which actually r ptentially falls within the scpe f this Sectin, regardless f whether the applicable allegatins are r may be grundless, false r fraudulent; and (iii) arises at and cntinues after the time the Lss is tendered t Artist/Dnr. 4
9. Terminatin f Agreement a. Twn s Right t Terminate Agreement Befre Expiratin f the Term. Prir t the expiratin f the term f this Agreement set frth in Sectin 2, the Twn may decide t remve the Artwrk frm public display and terminate this Agreement in accrdance with the prcedures established in Sectin 8 f the Twn s Art in Public Spaces Plicy, attached and incrprated heret as Exhibit B. Prir t the meeting f the Art in Public Spaces Cmmittee where the remval f the Artwrk is being cnsidered, the Twn shall prvide written ntice f the intent t remve the Artwrk and terminate the Agreement t the Artist/Dnr at the address listed in Sectin 18 f this Agreement. b. Artist/Dnr s Right t Terminate Agreement Befre Expiratin f the Term. Prir t the expiratin f the term f this Agreement set frth in Sectin 2, the Artist/Dnr may prvide written ntice f Artist/Dnr s intent t terminate this Agreement t the Twn, at the address listed in Sectin 18 f this Agreement. Upn receipt f Artist/Dnr s ntice f terminatin, the Twn shall fllw the prcedures specified in Sectin 8 f the Twn s Art in Public Spaces Plicy, attached and incrprated heret as Exhibit B. Artist/Dnr shall be slely respnsible fr any and all csts incurred by the Twn in cnnectin with remval f the Artwrk in the event Artist/Dnr elects t terminate this Agreement prir t the expiratin f the term set frth in Sectin 2. Artist/Dnr shall pay any such csts within thirty (30) days f receiving a written invice frm the Twn. 10. Installatin and Remval f Artwrk The Twn will have authrity ver the installatin and remval f the Artwrk. The Twn and Artist/Dnr have jintly develped a plan fr installatin and remval f the Artwrk in a manner that is cst-effective as well as prtective f Twn prperty and the Artwrk. That plan is attached t this Agreement as Exhibit C. Artist/Dnr shall take all actins reasnably necessary t facilitate and permit implementatin f the plan described in Exhibit C, including making the Artwrk available n a timely basis. Artist/Dnr shall als be slely respnsible fr any and all activities identified in Exhibit C as being the respnsibility f Artist/Dnr. The Twn will secure funding t cver the cst f thse activities described in Exhibit C that are nt identified as being the respnsibility f Artist/Dnr. In light f the Artist/Dnr s cmmitment t cmply with the plan described in Exhibit C and the financial cmmitment made by the Twn Cuncil, the Twn is nt anticipated t bear any csts assciated with the installatin and remval f the Artwrk. If the Twn incurs any unanticipated csts as a result f any failure by Artist/Dnr t carry ut bligatins under this Agreement and/r the plan cntained in Exhibit C, Artist/Dnr shall reimburse the Twn fr thse csts. Artist/Dnr shall pay any such csts within thirty (30) days f receiving a written invice frm the Twn. 5
If the Artwrk can be remved frm public display withut significant damage t the Artwrk r the site where the Artwrk is installed, the Twn shall take reasnable precautins t minimize alteratin f the Artwrk during remval. If the Artwrk cannt be remved frm public display withut alteratin f the Artwrk (e.g., it is incrprated int a building), Artist waives any and all such claims, and any rights granted under the Visual Artists Rights Act, the Califrnia Art Preservatin Act, r similar law, against the Twn, its agents, fficers and emplyees, fr alteratin f the Artwrk. 11. Chice f Law & Venue This Agreement shall be gverned by the laws f Califrnia. The venue fr all litigatin r ther disputes relative t this Agreement shall be the Superir Curt fr the Cunty f Cntra Csta. 12. Captins Sectin headings are fr reference nly and shall nt be used t interpret this Agreement. 13. Severability If any prvisin heref is fund t be invalid r unenfrceable, such finding shall nt affect the validity f any ther prvisin heref; and such prvisin shall be enfrced t the maximum extent pssible s as t effect the intent f the parties. 14. N Waiver Any failure t enfrce any right r t require perfrmance f any prvisin f this Agreement shall nt be cnsidered a waiver f such right r perfrmance. 15. Entire Agreement This Agreement, including the attached and incrprated exhibits, cntains the entire agreement between the parties, and supersedes all ther ral r written prvisins. 16. Prvisins that Survive Terminatin f this Agreement Sectins 4, 5, 6, 8, 10, and 11 shall survive the terminatin f this Agreement r the expiratin f the term f this Agreement. 17. Mdificatins and Amendments N amendment r mdificatin t this Agreement shall be effective unless it is in writing and signed by authrized representatives f each f the parties heret. 6
18. Ntices a. Unless therwise indicated in this Agreement, all written cmmunicatins sent by the parties may be made by U.S. Mail, e-mail, r fax, and shall be addressed as fllws: Twn f Mraga Directr f Parks and Recreatin 2100 Dnald Drive Mraga, CA 94556 Fax: (925) 376-2034 Artist Name Street Address Twn, State ( ) - b. Artist/Dnr shall prvide written ntice t Twn f any change in address, r change in wnership f the Artwrk, within thirty (30) days f such change. 19. Binding Effect a. The prvisins, cvenants, and cnditins in this Agreement shall inure t and bind the parties, their legal heirs, representatives, successrs, and assigns. b. If Artist/Dnr transfers wnership f the Artwrk during the term f this Agreement, all rights and bligatins f Artist/Dnr under this Agreement shall be transferred t the successr wner f the Artwrk, and said successr wner shall be bund by this Agreement. 20. Enfrcement In the event f litigatin between the parties arising ut f this Agreement, the prevailing party shall recver its csts f litigatin, including attrney s fees. IN WITNESS WHEREOF, the parties heret have executed this Agreement by having their signatures affixed belw. Twn f Mraga Rbert Priebe Interim Twn Manager Artist/Dnr Artist Name Artist/Dnr Signature 7
Attest: Marty C. McInturf Twn Clerk Apprved as t frm: Karen Murphy Assistant Twn Attrney
EXHIBIT A Public Art Applicatin EXHIBIT B Twn f Mraga Art in Public Spaces Plicy EXHIBIT C Plan fr Installatin and Remval f Artwrk
Exhibit C: Plan fr Installatin and Remval f Artwrk Installatin and deaccessin (remval) f the Artwrk by Artist/Dnr, which will be n lan t the Twn f Mraga will require the participatin and cperatin f the Artist/Dnr and the Twn as fllws: Respnsible Party (check apprpriate clumn) Artist/Dnr Twn 1. Transprt t site frm current lcatin ( ) ( ) 2. Transprt back frm site t riginal lcatin ( ) ( ) 3. Preparatin f anchring r supprt ( ) ( ) 4. Placement f anchring r supprt ( ) ( ) 5. Remval f anchring r supprt ( ) ( ) 6. Mvement f Artwrk frm transprt vehicle t display site ( ) ( ) 7. Mvement f Artwrk frm display site t transprt vehicle ( ) ( ) 8. Other related csts fr installatin (specified belw) ( ) ( ) 9. Other related csts fr deaccessin (specified belw) ( ) ( ) Nte: Thse items identified as being the respnsibility f the Twn shall be arranged by the Twn and the csts cvered under the prvisins f the Agreement. Thse items identified as being the respnsibility f the Artist/Dnr shall be arranged by the Artist/Dnr, in cperatin with the Twn and its schedule, at n cst t the Twn. In accrdance with the Agreement, any csts that result frm Artist/Dnr s deviatins frm the respnsibilities and schedules identified in this plan shall be brne by the Artist/Dnr. Schedule fr Installatin and Deaccessin: Installatin (check all that apply) The Artist/Dnr will make the Artwrk available fr pick up at (address) by the transprter retained by the Twn beginning at (date/time). The Artist/Dnr will be at the display site t assist with installatin at (date/time). The Artist/Dnr will arrange in advance with the Twn fr a date and time t install the Artwrk.
The Artist/Dnr will ensure that the Artwrk is ready fr display n later than (date). Deaccessin (check all that apply) The Artist/Dnr will arrange in advance with the Twn fr a date and time t remve the Artwrk at the end f the lan term. At the end f the lan term, n the date and time arranged in advance by the Twn, the Artist/Dnr will be present at the display site t assist with deinstallatin. The Artist/Dnr will be available t receive the Artwrk frm transprter at (address) n the date and time arranged in advance by the Twn. The Artist/Dnr understands and acknwledges that the Artwrk will be part f a public art display invlving multiple pieces dnated by numerus artists. In rder t limit the installatin and deaccessin csts assciated with this display the Twn has, t the greatest extent pssible, arranged fr the participating artists t undertake as much f the installatin and deaccessin wrk as pssible, at n cst t the Twn. In additin, installatin and deaccessin f all f the artwrk in the display will prceed in a crdinated manner designed t limit assciated labr and equipment csts. The Artist/Dnr understands and acknwledges that they will need t cperate and cmply with the schedule and activities fr installatin and de-installatin f the artwrk established by the Twn. NOTES AND ADDITIONAL SPECIFICATIONS