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CM Use Public Property for Temporary Art Installationy-3-$qq LICENSE AGREEMENT FOR USE OF PUBLIC PROPERTY FOR TEMPORARY ART INSTALLATION (Art Works Downtown) THIS LICENSE AGREEMENT is made and entered into as of the 2-9 day of July, 2019, by and between the City of San Rafael, a California Charter City ("City") and Art Works Downtown, Inc. a 501(c)(3) nonprofit corporation ("Licensee"). RECITALS A. In September, Licensee is hosting ZENPOP, a solo exhibit of artist Nellie King Solomon ("Artist"), at the Art Works Downtown 1337 Gallery. B. In connection with the core exhibit, Licensee wishes to install a 7X7 piece of Artist's work at San Rafael City Hall as an auxiliary display, and to include this auxiliary display in a tour map with other auxiliary displays, and other advertisements and promotions for the core exhibition. C. City is willing to grant a license to Licensee for use of certain City property, on the terms and conditions hereinafter set forth. NOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows: 1. License. The City grants Licensee, its officers, employees, agents and volunteers, permission to use that portion of the City's property described and/or shown in Exhibit A (hereafter, the "Premises"), for the temporary placement of certain works of art, including necessary installation/security devices for such art and related identifying signs, all as designated in Exhibit B (hereafter, "Artwork or Artworks"), for Licensee's ZENPOP auxiliary exhibition, in accordance with the terms and conditions specified herein. The City will direct any inquiries about purchasing the Artwork to Licensee. 2. As -is Condition. Licensee acknowledges and agrees that the Premises are being licensed and accepted in their "as -is" condition, without representation or warranty of any kind, and subject to all applicable laws, rules and ordinances governing their use. Licensee represents and warrants to City that it has investigated and inspected, either independently or through agents of Licensee's own choosing, the condition of the Premises and the suitability of the Premises for Licensee's intended use. Licensee has determined, based solely on its own investigation, that the Premises are suitable for Licensee's intended use. Licensee acknowledges and agrees that neither City nor any of its agents have made, and City hereby disclaims, any representations or warranties, express or implied, concerning the Premises, the physical or environmental condition of the Premises, the present or future suitability of the Premises for Licensee's event, or any other matter whatsoever relating to the Premises. 3. Term. Except as otherwise terminated as provided herein, the term of this Agreement shall be from July 29, 2019 to September 15, 2019. 4. Permitted Uses. Licensee may enter and use the Premises only for the uses specified in paragraph 1 of this License, and for no other purposes; Licensee's use of the Premises hereunder shall be subject to the following standards, conditions and limitations: a. Design Standards. Licensee shall be responsible for selecting the art for display on the Premises; however, Licensee acknowledges and agrees that in addition to any selection process of Licensee's, any Artwork proposed to be displayed on City property pursuant to this License Agreement shall be reviewed and approved by the City Manager prior to installation for consistency with the following criteria and design standards: i. The Artwork shall be suitable for display in a public space to a diverse audience including persons of all ages. ii. The Artwork shall not pose a threat to public health or safety. iii. The Artwork shall meet applicable Americans with Disabilities Act ("ADA") regulations. b. City Approval of Artworks. All Artworks proposed for installation pursuant to this License Agreement shall be reviewed and approved in writing by the City Manager or his designee prior to installation. In the event the City Manager or his designee determines, in his sole discretion, that any particular Artwork is inconsistent with the design standards set forth in subsection (a) of this section, Licensee shall not install the disapproved Artwork. c. Installation of Artworks. Licensee shall be responsible for any equipment, materials, and labor needed to install and secure each Artwork, and the plan for installation of any Artwork, including method and schedule of installation, shall be submitted to the City Manager for approval prior to installation of the Artwork. City shall coordinate with the site managers for the installations, assigning staff to be on site during installations. 5. Licensee Responsibility for Individual Artworks. Licensee hereby acknowledges that the City shall not enter into a license agreement with Artist and agrees that Licensee will be responsible for ensuring that any agreements between Licensee and Artist shall not violate the terms of or conflict with this License Agreement or with City's or Licensee's rights and obligations hereunder. Notwithstanding the foregoing, prior to installation of any particular Artwork, Licensee shall provide to City a written waiver, signed by Artist, of the artist's rights pursuant to the Visual Artists Rights Act (17 U.S.C. §§106A and 113(d), the California Art Preservation Act (Cal. Civ. Code §§987 et seq., and any other similar laws, in the form attached hereto as Exhibit C. 6. License Personal. The license herein granted is personal to Licensee and its officers, employees, agents and volunteers, and no right hereunder may be assigned, sublet or otherwise transferred in whole or in part. 7. Termination; Removal or Alteration of Improvements. Notwithstanding the term set forth in paragraph 3: a. If Licensee defaults with respect to any obligation, covenant or condition of this License Agreement, and fails to correct the default within five (5) days after the receipt of notice from the City to do so, City may immediately terminate this Licensee Agreement by giving written notice to the Licensee. b. If City determines, in its sole discretion, that Licensee's use of the Premises unduly impedes or restricts the movement of pedestrians or creates an undue risk to public health or safety, or otherwise constitutes a public nuisance, the City may terminate this License Agreement upon two (2) days notice to Licensee. c. City may terminate this License Agreement if the City finds that the Artwork do not meet the Design Standards set forth in section 4(a) of this License Agreement. d. In the event of emergency, determined in the sole discretion of the City, City may, at its sole option and without notice to Licensee, alter, remove or protect at Licensee's sole expense, any and all Artworks installed or placed in, on, under or about the Premises by Licensee. e. If at any time prior to or during the tern of this License Agreement, City finds any part of the Premises to be inappropriate for any reason for installation of the Artwork, City shall have the right, in its sole discretion, to designate an alternate location on City - owned property for installation of the Artwork. 8. Surrender and Restoration. Upon termination of this License Agreement, Licensee, at its sole cost and expense, shall promptly and safely remove all Artwork, signs and any other personal property placed on the Premises, restore the Premises to their original condition, clean the premises and cease any further use of the Premises as provided herein. Should Licensee neglect to restore the Premises to a condition satisfactory to City, City may perform such work or have such work performed, and Licensee shall immediately reimburse City for all direct and indirect costs associated with such work upon receipt of a statement therefor. 9. Indemnification; Risk of Loss. Licensee shall indemnify, release, defend and hold harmless the City, its officers, agents, employees and volunteers, against any claim, demand, suit, judgment, loss, liability or expense of any kind, including attorney's fees and administrative costs, arising out of or resulting in any way, in whole or in part, fiom any acts or omissions, intentional or negligent, of Licensee or Licensee's officers, agents and employees or volunteers, or from Licensee's occupancy, use or misuse of the Premises pursuant to this License Agreement. Licensee shall assume all risk of loss, damage, or injury to Licensee, or its property including any and all Artwork, arising out of or connected to its use or occupation of the Premises pursuant to this License Agreement, and shall indemnify and hold the City harmless from any claim related to such loss, damage or injury. 10. Insurance. Licensee shall maintain in effect during the term of this License Agreement, at no expense to City, insurance in a form approved by the City Attorney, as follows: a. Worker's compensation insurance, as required by the State of California, with statutory limits, and employer's liability insurance with limits of no less than $1,000,000 per accident for bodily injury or disease. The worker's compensation insurance shall be specifically endorsed to waive any right of subrogation against the City. b. General Commercial Liability insurance, in the minimum amount of $1,000,000 per occurrence and $2,000,000 aggregate, for death, bodily injury, personal injury, and property damage, endorsed to include the City and its officers, agents, ' employees, and volunteers as additional insureds. The additional insured coverage under Licensee's insurance policies shall be "primary and noncontributory" with respect to any insurance or coverage maintained by the City. c. Licensee shall subunit to the City certificates of insurance and properly executed endorsements evidencing the term, coverage, limits and endorsements as required above. 11. Compliance with Laws. Licensee shall observe and comply with all applicable federal, state, City, or other governmental statutes, ordinances, and regulations now in force or which hereafter may be in force, including the ADA. 12. Notices. Any notice required under this License Agreement shall be in writing. Delivery of such written notice shall be deemed sufficiently given forty-eight (48) hours after deposit in the United States Mail, registered or certified, return receipt requested, with postage thereon fully prepaid, or upon personal delivery, addressed as follows: If to City: Jim Schutz, City Manager City of San Rafael 1400 Fifth Avenue P.O. Box 151560 San Rafael, CA 94915-1560 If to Licensee: Art Works Downtown, Inc. Attn: Stan Gibbs 1325-1337 Fourth Street San Rafael, CA 94901 Either party may at any time change its address for notices by giving written notice of such change in the manner provided above. 13. Attorney's Fees. If either party should commence a legal action or proceeding to enforce the terms of tlus License Agreement, the prevailing party in the proceeding shall receive, in addition to court costs, reasonable attorney's fees, including the reasonable value of services rendered by the City Attorney's Office. IN WITNESS WHEREOF, the parties hereto have executed this License Agreement as of the day and year first written above. CITY OF SAN RAFAEL ATTEST: LINDSAY LARA, City Clerk APPROVED AS TO FORM: ROBERT F. EPSTEIN, Ity At ney ART WORKS DOWNTOWN, INC. 1 � S - S e-� [Print Name] Ye C v' wre -1), rr.ciro ✓ [Title of Corporate Officer] [Print Name] le of Second Coiporcle Officer] EXHIBIT A (Description of Licensed Premises) For two months (July 29 — September 13), Artworks Downtown will put the proposed art piece in the stairwell that leads from the 2nd to 31 floor of City Hall, located at 1400 Fifth Avenue, San Rafael CA 94901, where there is currently a large aerial. 6 EXHIBIT B (Description of Artworks, including signs, instal lation/security devices) ArtWorks Doi\ nto« n will temporarily (2 months) put a large 7' X 7' art piece (canvas) in the stairwell of City Hall. The canvas will hang on two screws installed with mollies provided by Art Works Downtown staff with the supervision of the City's Facility Repair Supervisor, Omar Garcia. 7 EXHIBIT C ARTIST'S RELEASE AND WAIVER (Nellie King Solomon) The undersigned Artist hereby acknowledges and agrees that neither the City of San Rafael nor its officers, employees, agents, or volunteers shall be liable for any distortion, mutilation, modification or destruction, by accident, act of God or person, of any artwork created by Artist and displayed on public property of the City of San Rafael for and as part of Art Works Downtown. The undersigned Artist hereby waives any and all claims, arising at any time and under any circumstances, against City, its officers, agents, employees, and volunteers, arising under the federal Visual Artists Rights Act (17 U.S.C. Sections 106A and 113(d)), the California Art Preservation Act (Cal. Civil Code Sections 987 et seq.), and any other local, state, federal or international laws that convey rights of the same nature as those conveyed under 17 U.S.C. Section 106A, Cal. Civil Code Sections 987 et seq., or any other type of moral right protecting the integrity of works of art. Dated: c� 8 ARTIST NELLIE KING SOLOMON 422a Locust Street Sausalito, CA 94965 nel l ie(c�nelliekingsolomon.com CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: City Manager's Office Project Manager: Jim Schutz Extension: 3475 Contractor Name: ArtWorks Downtown Contractor's Contact: Stan Gibbs Contact's Email: stan@artworksdowntown.org ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT a. Email PINS Introductory Notice to Contractor DATE Check/Initial 1 Project Manager Click here to ❑ enter a date. b. Email contract (in Word) and attachments to City LQM Attorney c/o Laraine.Gittens@cityofsanrafael.org 2 City Attorney a. Review, revise, and comment on draft agreement 7/24/2019 and return to Project Manager Click here to ❑ b. Confirm insurance requirements, create Job on enter a date. PINS, send PINS insurance notice to contractor 7/25/2019 ❑ 3 Department Director Approval of final agreement form to send to contractor 4 Project Manager Forward three (3) originals of final agreement to 7/25/2019 contractor for their signature ® N/A 5 Project Manager When necessary, contractor -signed agreement agendized for City Council approval * *City Council approval required for Professional Services ❑ Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Click here to Date of City Council approval enter a date PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City 7/31/19 Attorney with printed copy of this routing form L M 7 City Attorney Review and approve hard copy of signed agreement D 8 City Attorney Review and approve insurance in PINS, and bonds �1 I (for Public Works Contracts) 77 Agreement executed by City Council authorized _ Q 9 City Manager/ Mayor official 10 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager