Terms & Conditions
City of Malibu Loan and License Agreement for Display of Art Work
Authority to Enter into Agreement
The City wishes to install a temporary public exhibition in Malibu City Hall, on the City’s website, as well as at local businesses (the “Exhibition”) consisting of art pieces including framed, digital and analog (such as photography and film), and other art deemed appropriate by the City (the “Art Work”) from the “Lender” (artist submitting artwork for the Radical Beauty, Malibu Rising Art Exhibtion).
The Lender warrants that the Lender is the sole and exclusive original artist of the Art Work and retains all rights associated with ownership, including the authority to license the use of the Art Work, or the Lender warrants that the Lender has obtained all rights, authorizations, and permissions from the original artist to lend the Art Work to the City for public exhibition and to enter into this Agreement. If the Lender is not the original artist of the Art Work, the Lender shall provide sufficient proof of authorization from the original artist to the City prior to the City’s acceptance of the Art Work. In the event that it is legally determined that the Lender is not the copyright owner of the Art Work, the Lender shall indemnify and hold harmless the City as set forth in the Agreement.
City warrants that it is duly authorized to enter into this Agreement and perform its obligations hereunder.
Ownership of the Art Work
The Lender retains all rights, including copyright and other intellectual property rights, to the Art Work. The Lender retains the right to reproduce, modify, print, enter into other non-exclusive licenses, or sell the Art Work or copyrights in the Art Work. The City expressly acknowledges that it has no rights to the Art Work, except those rights agreed to in this Agreement.
Nature of Exhibition
The Birds and the Bees, A Celebration of Spring in Malibu
art exhibition may take place at times between March 20, 2020 and June 30, 2020, which involves the hanging and display of the Art Work in public spaces and local businesses. The Exhibition will take place at Malibu City Hall, potentially on the City’s website, and within various participating Malibu businesses (the “Location
”). The City reserves the exclusive right to amend, shorten, extend, or terminate the Exhibition at any time and in its sole discretion.
Use of the Art Work
Lender grants the City a non-exclusive and royalty-free license as follows:
To reproduce, publish, use, broadcast, publicly display the Art Work in its entirety or in any portion, individually or in a collective work or other compilation in any form, including but not limited to, the exercise of such rights through internet or intranet sites, computer on-line services, and all other media and distribution mechanisms now known or later developed, for use solely in conjunction with any City purpose.
To reproduce, print, copy, broadcast, and distribute the Art Work for marketing and promotional purposes by any method that the City, in its discretion, deems appropriate, including both electronic and physical reproduction and distribution (without geographical limitation) and also gives permission for the City to display the Art Work on the City’s website.
To use Lender’s name, voice, photograph, biographical information, and likeness in connection with the Agreement provided that any such uses are in connection with the City’s purposes.
Lender hereby acknowledges the rights of integrity and attribution conferred by Section 106A (a), paragraphs (2) and (3) of Title 17 of the U.S. Code, the California Art Preservation Act (Civil Code §987) and any other rights of the same nature granted by federal, state or international laws, and of his/her own free will hereby waives such rights with respect to the City’s usage or use of the Art Work consistent with the Agreement and the right to receive notice of City’s intent to take any such action.
Location of Art Work
Lender expressly acknowledges that Lender will have no choice, say, control, direction, input, or otherwise into the location and placement of the Art Work. Lender expressly acknowledges that the City shall retain sole and complete discretion and control over placement of the Art Work. Lender recognizes that Lender’s Art Work may be located within City Hall, on the City’s website, or within one of the participating City Businesses. Should Lender object to, or disapprove of, the placement or location of the Art Work, Lender may demand the return of the Art Work as set forth in this Agreement. Lender will be responsible for all costs and securing all materials and transportation related to transporting the Art Work.
The loan period shall be deemed to commence upon the delivery of the Art Work to the City at a time agreed upon by the Parties, and upon the City’s acceptance of the delivered Art Work. The loan period shall terminate upon the exchange of the possession and control of the Art Work from the City to the Lender or any authorized representative. (This loan period shall be referred to as the “Loan Period
Each Art Work shall be deemed on loan to the City during the Loan Period. By mutual written agreement, the Art Work may be removed earlier than said date should its materials or quality in any way be compromised by natural or man-made forces, or should Lender demand the return of the Art Work, or other unforeseen circumstances.
Lender agrees to loan the City the Art Work during the Loan Period free of charge. Lender agrees that City is not responsible for any costs, rents, expenses, fees, royalties, or otherwise associated with the display of the Art Work.
Installation and De-Installation
At the direction of the City, Lender will transport Art Work and deliver to City Hall on the mutually arranged date. If a Location has been chosen for the Art Work, City will notify the Lender of such Location and, at the sole discretion of the City, Lender may be responsible for securing materials and transportation for transporting Art Work to and from the Location upon direction by the City.
Lender shall accept return of the Art Work by the City at the termination of the Loan Period. Upon request, a release waiver will be signed by Lender that states after reviewing the condition of Art Work, the Lender waives all claims for damages and equity against the City and will acknowledge that the City is no longer in possession or control of the Art Work. The Lender will coordinate a de-installation and pickup or delivery date with the City. The Lender is responsible for securing materials and transportation for transporting Art Work from City Hall.
Return of Art Work
Lender shall accept return of the Art Work by the City at the termination of the Loan Period. If the City, after making reasonable efforts and through no fault of its own, shall be unable to return the Art Work within six months after such termination, then the City may place the Art Work in public storage for the account of Lender or may retain possession and charge storage fees at the rates quoted by the Licensed Public Warehouse, and carry insurance on the Art Work, and the City shall have a lien for the storage fees and cost of insurance. If the Art Work has not been reclaimed after two years from the termination of the Agreement, the City shall have the right and power to sell the Art Work at auction to satisfy the lien, pursuant to applicable law. At any such auction the City shall have the right to bid on the Art Work.
If there is a change in ownership of the Art Work during the Loan Period, the City will require that the new owner establish the legal right to receive the Art Work by providing the City with satisfactory proof before the City will relinquish the Art Work to the new owner.
The City shall maintain liability coverage for any third party claims for damage or destruction of property, bodily injury, or death arising out of exhibition of the Art Work at the Location. The City shall secure fine art property coverage for the schedule of Art Work during the period in which it has the Art Work under its care, custody, and control by providing that schedule to the City’s Alliant Insurance representative for coverage under California Joint Powers Insurance Authority Property Program if the value of the schedule of Art Work is under $1 million. If the schedule of Art Work is valued at $1 million or more the City shall secure additional fine art property coverage for the schedule of Art Work during the period in which it has the Art Work under its care, custody and control. Lender shall provide the appraised value of the Art Work to the City in advance of the delivery date. Coverage shall cease upon the termination of the Loan Period.
Safekeeping, Security, and Risk
Lender expressly acknowledges that the Art Work will be located during the Exhibition in an unsecured public location inside of a public building or local business that is easily accessible, or on the City’s website. Lender expressly acknowledges that because the Art Work will be displayed in public buildings or local business, or on the City’s website, it will not receive the same protections and security as at a formal art showing, museum, or exhibit.
Lender acknowledges and agrees that City will provide no additional security for the Art Work beyond the current security measures in place at City facilities and on the City’s website and whatever security measures are used and implemented in the participating local businesses.
Lender bears sole responsibility for obtaining and maintaining insurance for the Art Work while it is in transit to and from City Hall unless the shipping of the Art Work has been arranged by the City. Lender warrants that the appraised value Lender provides for property insurance purposes is the true value of the Art Work.
Indemnification and Release
Lender agrees to indemnify, defend, and hold the City, its officers, employees, and agents, volunteers, and representatives harmless from any liability (including attorney's fees and the costs of defending any actions) arising out of any claims, demands, actions, controversies, agreements, discipline, or causes of action whatsoever, whether known or unknown, by any individual, institution, entity, or other persons in any way connected with, arising out of, or related to the rights, including but not limited to copyright and any other intellectual property rights, to the Art Work.
Lender hereby releases and discharges the City, including without limitation, its officers, employees, agents, volunteers, and representatives, from any and all claims, demands, and causes of action that Lender may have against it for use of the Art Work, including, but not limited to, any claims based on the right of privacy, the right of publicity, copyright, libel, or slander.
Representations and Warranties
Lender hereby represents and warrants to the City as follows:
Lender has not assigned or transferred, or purported to assign or transfer, any rights to the Art Work to any individual, institution, entity, or other persons not a party to this Agreement.
Lender is not aware of any existing claims, demands, actions, controversies, agreements, discipline, or causes of action, nor of any facts that might give rise to any claims, demands, actions, controversies, agreements, discipline, or causes of action, of any type or any nature regarding rights to the Art Work.
Lender has received all approvals necessary to enter into the Agreement and that the person signing the Agreement is fully authorized to commit and bind such Party to each and all of the terms and conditions hereof.
This Agreement may not be changed, modified, or amended except by written instrument specifying that it amends such agreement and signed by the Party against whom the enforcement of any waiver, change, modification, extension or discharge is sought.
No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision whether or not similar, nor shall any waiver be deemed a continuing waiver; and no waiver shall be implied from delay or be binding unless executed in writing by the Party making the waiver. All of the covenants, releases and other provisions herein contained in favor of the persons and entities released are made for the express benefit of each and all of the said persons and entities, each of which has the right to enforce such provisions.
This Agreement is an integrated contract and sets forth the entire agreement between the Parties hereto with respect to the subject matter contained herein. All agreements, covenants, representations and warranties, express or implied, oral or written, of the Parties hereto with regard to such subject matter are contained in this Agreement.
This Agreement shall be construed as though each of the parties participated equally in the drafting of the same and any rule of construction that a document is to be construed against the drafting party shall not be applicable to this Agreement. This agreement shall be governed by, and construed in accordance with, the laws of the State of California. Any action arising out of this agreement must be commenced in the state courts of the State of California, County of Los Angeles and each Party hereby consents to the jurisdiction of the above court in any such action and to the laying of venue in the State of California, County of Los Angeles, and agrees that such courts have personal jurisdiction over each of them.
The section headings that appear throughout this Agreement have been provided solely for the convenience of the Parties and do not define or limit the scope of any provision. Consequently, the headings shall not be considered when interpreting this Agreement.
Each provision of this Agreement is severable from the other provisions. If, for any reason, any provision of this Agreement is declared invalid or contrary to existing law, the inoperability of that provision shall have no effect on the remaining provisions of this Agreement, which shall continue in full force and effect to the fullest extent permitted by law.
Change of Address
It is the sole responsibility of Lender to notify the City of any change of address. In case of death of Lender, the legal representative of the Lender is requested to contact the City in writing to provide information regarding the disposition of the Art Work and as to whom and where notices should be sent.
Unless otherwise designated in writing, Kristin Riesgo, Community Services Deputy Director will be the selected member of City staff who shall serve as the City’s representative for the administration of the project. All activities performed under this Agreement shall be coordinated with this person.This call has agreed to ArtCall.org Terms & Conditions