MURAL INSTALLATION AND MAINTENANCE AGREEMENT
1 of 8
MURAL INSTALLATION AND MAINTENANCE AGREEMENT
This MURAL INSTALLATION AND MAINTENANCE AGREEMENT (the
“Agreement”) is made this 1st of June, 2022, in the City of Visalia, County of Tulare, State of California, by and between Downtown Visalians (“Sponsor”), Heidi Steinman (“Artist”) and the City of Visalia (“City”).
W I T N E S S E T H:
WHEREAS, City understands the importance of art in public places and the role that murals play in preserving our culture, conveying the history of our community, beautifying the city, and advancing the arts.
WHEREAS, murals are permitted under the City’s sign ordinance upon the issuance of a permit from City pursuant to Visalia Municipal Code § 17.48.040.
WHEREAS, pursuant to City’s Mural Guidelines and Procedures, murals meeting certain specification are allowed subject to review by the Mural Panel and final approval by the City Council in accordance with VMC § 17.48.040.
WHEREAS, pursuant to the City’s Mural Guidelines, following approval by the Mural Panel, the property owner or the Artist who have ownership of the mural are required to provide to the City Manager, or his/her designee, evidence of an agreement which identifies the terms and conditions under which the mural will be applied; and
WHEREAS, Sponsor has obtained permission from the property owner, Franey Family Limited Partnership, to place a temporary mural on the façade and wood paneling along the front of their property, wherein temporary plywood paneling has been placed upon the façade of the building of which the interior was destroyed by a fire, and wherein the mural is intended to improve the visual quality of the building until it is restored; and
WHEREAS, to comply with the City’s mural guidelines, Sponsor, Artist, and City desire to execute an agreement establishing the Parties’ rights and responsibilities with respect to the installation, maintenance, and ownership of the mural.
NOW, THERFORE, in consideration of the mutual covenants contained in this Agreement and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:
Article 1
Definitions
1.1 “Commercial” means words or images used elsewhere in the marketplace for the purpose of promoting a particular business, product, service, cause, place or brand.
MURAL INSTALLATION AND MAINTENANCE AGREEMENT
2 of 8
1.2 “Commercial element” means art that by virtue of its location or proximity to a business may serve a minimal commercial purpose. If that art wer e in a different location, it would be considered pure art and not commercial in nature.
1.3 “Good condition” means that the mural is free of dirt, debris, and any other object or substance interfering with the public’s view of the mural.
1.4 “Mural” means a sign as defined in V isalia Municipal Code, Chapter
17.48. It is also generally described as a picture or representation, in any type of medium, on an exterior surface of a building, structure, fence or garden wall.
1.5 “Mural Panel” means the group of individuals approved by the City Manager to review applications to place murals in public places prior to presentation to Council.
Article 2
Sponsor’s Covenants
2.1 Authorization. The owners of the property located at 312-316 W.
Main Street, Visalia, California, (the “Property”), have authorized the Sponsor to install the proposed mural on the façade and wood paneling facing the south side of the Property, and will permit Artist to do so following this Agreement’s execution. Sponsor hereby acknowledges that the proposed mural design, location, and duration have been approved by the property owners. The Sponsor is entering this Agreement as the party responsible for the mural on behalf of the property owners.
2.2 Maintenance and Repair. Sponsor covenants to maintain and repair the mural during the term of this Agreement so that the mural is at all times in a state of good condition.
Article 3
Artist’s Covenants
3.1 Installation. Artist covenants to complete installat ion of the mural on the south-facing façade on the Property within 120 days after this Agreement’s execution.
3.2 Necessary Artistic Repairs. Artist covenants to assist Sponsor or the property owner in making any necessary repairs to the mural’s artistic content, including, but not limited to, restoring a damaged portion of the mural’s content.
Article 4
Term, Termination, and Extension
4.1 Term. This Agreement shall have a term of ten (10) years from the date of execution, unless terminated pursuant to Article 4 or Article 8.
MURAL INSTALLATION AND MAINTENANCE AGREEMENT
3 of 8
4.2 Sponsor or Owner’s Termination. The Sponsor, or the property owner may elect to termin ate this Agreement without any liability to Artist or City if Artist: (a) fails to install the mural as specified in this Agreement ; or (b) fail s to complete installation of the mural on the date required by Section 3.1 for any reason. In the event of such termination, the Sponsor or the property owner may elect to cover or remove those parts of the Mural that have been installed.
4.3 City’s Termination. City may elect to terminate this Agreement without any liability to Artist , Sponsor, or the property owner if the Mural is not maintained in accordance with Section 7.1.
4.4 Extension. The Parties hereto may mutually agree in writing to extend the term of this Agreement for successive five (5) or ten (10) year periods.
Article 5
Mural Specifications
5.1 Artistic Freedom. The provisions of this Article 5 shall not in any way limit or restrict Artist’s right to include content in the mural that is not commercial, indecent, or obscene.
5.2 Commercial Content. The mural shall not include an advertise ment or be commercial in nature . Murals shall not contain copy, lettering, symbols or references directly to the promotion of any product, business, brand, organiz ation, service, cause or place. Murals may contain limited commerc ial elements so long as they are not considered commercial speech with the purpose of promoting a commercial transaction.
5.3 Obscene and Indecent Content. The mural shall comply with City ordinances prohibiting indecency and obscenity in public.
5.4 Sponsor and Artist Identification. In no event shall the name of a sponsor, a sponsor product likeness, or the Artist’s signature individually comprise more than one (1) percent of the mural.
5.5 Configuration and Dimensions. The mural shall be of the s ame configuration and dimensions as the scale rendition preliminarily approv ed by the Mural Panel and Sponsor.
Article 6
Installation
6.1 Time of Installation. Artist shall begin installing the mural as soon as reasonably practicable after this Agreement’s execution.
6.2 Notice of Installation. Artist shall provide advance notice in writing to the Sponsor of the date and time Artist intends to install the m ural. Artist may thereafter
MURAL INSTALLATION AND MAINTENANCE AGREEMENT
4 of 8
proceed with the insta llation if Sponsor is not present, unless Sponsor notifies Artist in writing otherwise.
6.3 Materials. Artist shall be responsible for providing, at its cost, all materials necessary to install the mural.
6.4 Landscape Protection and Removal. Parties acknowledge that the site of the proposed mural does not contain landscaping. .
6.5 Application for Encroachment Pe rmit. Artist or the Sponsor shall determine whether installation of the mural requires an encroachment permit pursuant to Visalia Municipal Code § 12.12.010, which requires an encroachment permit for any work performed in the public right of way or utility easements in the City, and, if required, Artist or the Sponsor shall acquire said permit prior to commencing the mural’s installation.
Article 7
Maintenance and Repairs
7.1 Maintenance and Repairs. The Sponsor shall be responsible for maintaining the mural in good condition at all times while this Agreement is in f orce. If, for any reason, the m ural is not so maintained, as determined by City, City shall notify Sponsor of the need to perform maintenance and/or repai rs and identify the actions necessary for compliance with this provision. If, after thirty (30) days from the date of the City’s notification to Sponsor of the need for maintenance and/or repairs, and the Sponsor has not performed the actions identified by City as being necessary for compliance with this provision, then City shall have permission to access the façade on the Property and perform any necessary maintenance and/or repairs at Sponsor’s expense.
7.2. Access. Sponsor, under the authorization granted by the property owner hereby grants City and Artist a right of access to the Property to paint the mural and to perform maintenance and repairs required pursuant to this Agreement , and otherwise to ensure the mural remains in good condition while this Agreement is in force.
Article 8
Removal
8.1 Removal by City. City may remove the mural at Sponsor’s expense if Sponsor fails to maintain the mural in good condition as provided in Section 7.1.
8.2 Removal by Sponsor. The Sponsor or the property owner may remove the mural at their expense if either reasonably determines that the mural is harming the Property or limiting the potential usage of the Property, such as when another building is built and the temporary façade where the mural will be located is removed ; provided that Sponsor shall provide Artist and City with sixty (60) days’ notice that it intends to
MURAL INSTALLATION AND MAINTENANCE AGREEMENT
5 of 8
remove the m ural at th e end of the notice period. If possible, Sponsor shall work with Artist and City to find another suitable site for the mural.
Article 9
Insurance and Indemnification
9.1 Insurance. Sponsor or Artist shall obtain adequate insurance, both in type and amount, as determined by the City’s Risk Manager; provided ho wever, that if either party is unable to obtain insurance coverage, then in lieu thereof the Sponsor and the Artist may agree to indemnify City pursuant to Section 9.2.
9.2 Indemnification and Coordination. Unless insurance coverage has been obtained in accordance with Section 9.1, Sponsor and Artist hereby agree:
(i) to jointly and severally indemnify City for any costs the City incurs in connection with the mural caused by the actions of the Sponsor or Artist, their officers, employees, or agents, or any person who was under their control insofar as permitted by law. Further, Sponsor and Artist hereby agree to hold harmless, indemnify, and defend the City of Visalia, its officials, members, agents , and employees against any claims, costs, damages, demands, liability , and notices, or any of these, arising or resulting from any damage or injury proximately caused by actions of either party in connection with the mural, regardless of whether the city is acti vely negligent or passively negligent, except for those claims, costs, damages, demands, liability , and notices, or any of these, caused solely by the negligence or willful misconduct of City; and
(ii) to cooperate with the City to respond to specific risks, hazards, and dangers to public health and safety that are reasonably foreseeable consequences of the activity contemplated by this Agreement.
Article 10
Intellectual Property
10.1 Ownership: City, its successors and assigns, shall own all rights in the mural except as specified below.
10.2 Copyright. Subject to the restrictions and usage rights and licenses granted to Sponsor hereunder, and unless otherwise agreed to by the parti es in writing, Artist shall retain all 17 U.S.C. §106 copyrights in all original works of authorship produced under this Agreement. If Artist is comprised of two or more individual persons, the individual persons shall be deemed joint authors of the mural.
10.3 Sponsor’s Intellectual Property License. Artist hereby grants to Sponsor, and to Sponsor’s agents, authorized contractors and assigns , and to City an unlimited and irrevocable license to do the following with respect to the Mural:
MURAL INSTALLATION AND MAINTENANCE AGREEMENT
6 of 8
(i) Sponsor may use and display the mural on the Property only.
(ii) Sponsor and City may make, display, and distribute, and authorize the making, display, and distribution of photographs and other reproductions of the mural. Sponsor and City may use such reproduc tions for any Sponsor -related or City - related purpose, including advertising, educational and promotional materials, brochures, books, flyers, postcards, print, broadcast, film, electronic, and multimedia publicity.
Sponsor and City shall ensure that such reproductions are made in a professional and tasteful manner, in their sole and reasonable judgment. Sponsor and City shall make reasonable efforts to ensure that such reproductions include the following credit line and copyright notice where practicable: “ [Title of Artwor k]” © [Year of completion] by [Artist’s name]. Failure to include such credit line and notice in any reproductions shall not constitute a breach of this agreement. Neither Sponsor nor City may license or sublicense its rights for any private or commercial purpose. This license granted hereunder does not include the right to sell photographs or r eproductions of the mural or to reproductions.
10.4 Third Party Infringement. Artist represents and warrants that the mural is the sole work of the Artist and does not infringe the intellectual property rights of any third parties. Neither Sponsor nor City is responsible for any third party infringement of Artist’s copyright or for protecting Artist’s intellectual property rights. Further, Artist agrees to indemnify Sponsor and City against any claims brought against Sponsor or City alleging that the mural infringes the intellectual property rights of any third parties.
10.5 Publicity. Sponsor and City shall have the right to use Artist’s name, likeness, and biographical information, in connection with the display or reprod uction and distribution of the m ural. Artist shall be reas onably available to attend any ceremonies related to the mural.
10.6 Trademark. In the event that Sponsor‘s or City’s use of the mural creates trademark, service mark or trade dress rights in connection with the mural, Sponsor and City shall have an exclusive and irrevocable right in such trademark, service mark, or trade dress.
10.7 Waiver of Artist’s Rights. With respect to the mural produced under this Agreement, and in consideration of the procedures and remedies specified in this Agreement, Artist hereby waives any and all claims, arising at any time and under any circumstances, against Sponsor and City, its officers, agents, e mployees, successors and assigns, arising under the federal Visual Artists Rights Act (17 U.S.C. §§106A and 113(d)), the California Art Preservation Act (Cal. Civil Code §§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. §106A, Cal. Civil Code §§ 987, et seq., or any other type of moral right protecting the integrity of works of art. Specifically, Artist hereby waives any and all such claims against Sponsor, the current property owners and any future owners of the Property, and its agents, officers and em ployees, and City. Artist hereby represents and warrants that the Artist is authorized to sign this waiver.
MURAL INSTALLATION AND MAINTENANCE AGREEMENT
7 of 8
Article 11
Miscellaneous Provisions
11.1 Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL
ONE PARTY TO THIS AGREEMENT BE LIABLE TO THE OTHER PARTY FOR
ANY SPECIAL, CONSEQUENTIAL, INDIRECT , OR INCIDENTAL DAMAGES,
INCLUDING LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, OR ANY ACTIVITIES PERFORMED IN CONNECTION WITH THIS
AGREEMENT, REGARDLESS OF WHETH ER A CLAIM MADE BY THAT PARTY IS BASED ON CONTRACT OR TORT.
11.2 Survival. The provisions contained in Article 10 shall survive the expiration or termination of this Agreement.
11.3 Modification and Amendment. This Agreement may not be modified, nor may compliance with any of its terms be waived, except by written instrument executed and approved in the same manner as this Agreement.
11.4 Governing Law; Venue. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California, without regard to its conflict of laws principles. Venue for all litigation relative to the formation, interpretation and performance of this Agreement shall be in Visalia.
11.5 Headings. All article and section headings and captions contained in this Agreement are for reference only and shall not be considered in construing this Agreement.
11.6 Entire Agreement. This Agreement sets forth the entire a greement between the parties and supersedes all other oral or written provisions.
11.7 Counterparts. This Agreement may be executed in multiple counterparts and signatures may be exchanged by facsimile or electronically, each of which shall be deemed to be an original document, and all of which together shall constitute one and the same document.
11.8 Relationship of the Parties. Nothing contained in the Agreement shall be construed as creating any agency, partnership, or other form of joint ente rprise between the Parties. The relationship between the Parties shall at all times be that of independent contractors. Neither Party shall have authority to contract for or bind the other in any manner whatsoever. The Agreement confers no rights upon eith er Party except those expressly granted herein.
11.9 Attorney Fees. In the event either party commences legal proceedings for the enforcement of this Agreement, the prevailing party shall be entitled to recovery of its attorney’s fees, litigation expenses, and court costs incurred in the
MURAL INSTALLATION AND MAINTENANCE AGREEMENT
8 of 8
action brought thereon. Attorney’s fees and litigation expenses shall include without limitation costs of preparation and discovery and retaining expert witnesses, and such fees and expenses shall be pa yable whether or not the litigation proceeds to final judgment. “Prevailing party” shall be defined as the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified herein, the prevailing party shall be as determined by the court.
11.10 Notices. Notices or other communications required by this Agreement will be sufficiently made or given if mailed by certified First Class United States mail, postage pre-paid, or by commercial carrier (e.g., FedEx, UPS, etc.) when the carrier maintains receipt or record of delivery, addressed to the address stated below, or to the last address specified in writing by the intended recipient.
Sponsor: Downtown Visalians
120 S. Church
Visalia, CA 93291
Artist: Heidi Steinman
________________
________________
City City of Visalia,
Attn: Leslie Caviglia, City Manager
220 N. Santa Fe Street
Visalia, CA 93292
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first specified herein.
Sponsor
______________________________
Steve Nelson, Executive Director
Downtown Visalians
City
______________________________
Leslie Caviglia
City Manager
Artist
______________________________
Heidi Steinman