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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