MURAL INSTALLATION AND MAINTENANCE AGREEMENT
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MURAL INSTALLATION AND MAINTENANCE AGREEMENT
This MURAL INSTALLATION AND MAINTENANCE AGREEMENT (the
“Agreement”) is made this 17th day of February, 2023, in the City of Visalia, County of Tulare, State of California, by and between City of Visalia (“Owner” or “City”), Colleen Michell-Veyna (“Artist”) and the Visalia Rawhide Baseball Club (“Lessee”).
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 City’s Mural Panel and final approval by the City Council in accordance with VMC § 17.48.040.
WHEREAS, Lessee is leasing from City the facility currently known as Valley Strong Ballpark, formerly Recreation Ballpark, which consists of a baseball stadium and associated stadium facilities located at 300 N. Giddings Street, Visalia.
WHEREAS, Lessee, with the permission of City as the facility owner, is interested in allowing Artist to create a mural in the area described in this Agreement.
WHEREAS, pursuant to the City’s Mural Guidelines, following approval by the Mural Panel, Owner and Artist are required to provide to the City Manager, or his/her designee, evidence of an agreement which identifies the terms and conditions for the proposed mural that will be applied; and
WHEREAS, to comply with the City’s Mural Guidelines, Lessee, 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.
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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 were in a different location, it would be considered pure art and not commercial in nature.
1.3 “Good condition” means that the mural that is the subject of this Agreement must be kept free of dirt, debris, graffiti, other forms of defacement, any other object or substance interfering with the public’s view of the mural, that any connection of the mural and the structure be maintained in good working order, and that the mural, including any mounting hardware, be maintained at regular intervals to counteract impacts from sunlight and weather. The term good condition also includes the requirement that if the mural is mounted to a structure, then the structure must be maintained to avoid damage from the installation of the mural and repaired if the mounting of the mural on the structure causes damage over time.
1.4 “Mural” is the artwork that is the subject of this Agreement, and Parties acknowledge the Mural must be approved pursuant to the mural policy referred to in Visalia Municipal Code, Chapter 17.48 prior to installation . The term “mural” 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. Parties acknowledge that installation of the Mural at the proposed location may subject the Mural to destruction, distortion, mutilation, or other modification by reason of its removal.
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
Owner and Lessee Covenants
2.1 Owner Covenants. Owner covenants that it owns Valley Strong Ballpark, located at 300 N. Giddings Street, Visalia, California, 93291 (the “Property”), is authorized to permit the mural’s installation upon the south-facing wall of the Property, subject to compliance with the applicable City of Visalia policy on murals, and will permit the mural to be installed by Artist following this Agreement’s execution, in accordance with the City Council’s action to approve the mural’s installation on March 6, 2023. A map showing the proposed location of the mural is attached to this Agreement as Exhibit “A” and made a part hereof by reference.
2.2 Lessee Covenants. Lessee covenants to work with Artist 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. In addition, Lessee covenants that should it transfer its lease of the Property, then it shall require the new leaseholder to assume all duties under this Agreement.
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Article 3
Artist’s Covenants
3.1 Installation. Artist covenants to complete installation of the mural on the south-facing wall of the Property within 120 days after this Agreement’s execution.
3.2 Necessary Artistic Repairs. Artist covenants to assist Lessee in maintaining and repairing the mural so that it is in a state of good condition during this Agreement, this includes but is not limited to making any necessary repairs to the Mural’s artistic content, including, but not limited to, restoring a damaged porti on of the M ural’s content.
Article 4
Term, Termination, and Extension
4.1 Term. Parties acknowledge the Mural is for a specific term and is not permanent. The Mural may be removed at the expiration of this Agreement or sooner if the Mural is causing damage to the structure, is not being maintained properly, or interfering with the use of the Property. This Agreement shall have a term of seven (7) years from the date of execution, unless terminated pursuant to Article 4. This Agreement shall end at the expiration of the Term and the Owner or Lessee in possession of the Property may remove the Mural after providing notice to the Artist at least ninety (90) days prior to removal that removal may damage the Mural and the Artist has the right to remove the Mural . If the lease by the Lessee ends prior the termination of this Agreement and is not transferred to a new leaseholder, then this Agreement may continue between City and Artist, or City, at its sole option may decide to terminate this Agreement and remove the Mural.
4.2 Termination for Failure to Complete Mural. Lessee may elect to terminate this Agreement without any liability to Artist or City if Artist: (a) fails to install the Mural as specified in this Agreement; or (b) fails to complete installation of the Mural on the date required by Section 3.1 for any reason. In the event of such termination, Lessee shall be responsible for covering or removing those parts of the Mural that have been installed and shall have no requirement to notify the Artist prior to covering or removing the Mural in this instance since the Mural will be considered unfinished and unauthorized.
4.3 Termination for Failure to Maintain. City or Lessee may elect to terminate this Agreement without any liability to Artist 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) year periods.
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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. However, the Mural will be considered a sign and must be approved pursuant to the City of Visalia Mural Policy before it can be installed. Installation of the Mural without approval pursuant to the Mural Policy will mean the Mural is not authorized and will be subject to removal by the City at the cost of the Lessee.
5.2 Commercial Content. The Mural shall not include an advertisement 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 commercial 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 same configuration and dimensions as the scale rendition preliminarily approved by the Mural Panel and Owner.
Article 6
Installation
6.1 Time of Installation. Artist shall begin installing the M ural as soon as reasonably practicable after this Agreement’s execution and approval of the Mural pursuant to the City of Visalia Mural Policy . Artist shall complete the Mural within 120 days once work on installation of the Mural begins.
6.2 Notice of Installation. Artist shall provide advance notice in writing to Lessee and City of the date and time Artist intends to install the M ural. Artist may thereafter proceed with the insta llation if Lessee or City is not present, unles s Lessee or City notifies Artist in writing otherwise.
6.3 Materials. Lessee shall be responsible for providing, at its cost, all materials necessary to install the M ural. Lessee is also solely responsible for confirming that the proposed location of the Mural is structurally suitable for the placement of the Mural.
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6.4 Landscape Protection and Removal. To the extent reasonably practicable under the circumstances, Artist shall take care to protect any landscaping on the Property during installation. If installation requires the removal of any landscaping on the Property, Artist shall be responsible for replacing the landscaping after completing installation and all costs associated with replacement , if necessary . Prior to removing or altering any landscaping on the Property, Artist shall first acquire Lessee’s and City’s consent to such removal or alteration.
6.5 Application for Encroachment Permit . Artist shall determine whether installation of the M ural requires an encroachment permit pursuant to Visalia Municipal Code § 12.12.010, which requires an encroachment perm it for any work performed in the public right of way or utility easements in the City, and, if required, Artist shall acquire said permit prior to commencing the Mural’s installation.
Article 7
Maintenance and Repairs
7.1 Maintenance and Repairs. Lessee shall be responsible for maintaining the Mural and the underlying wall in good condition at all times while this Agreement is in force. This includes liability for all maintenance costs. This Agreement shall presume that the Mural requires regular maintenance at least every five-years. Lessee shall be responsible for working with the Artist in conducting this required maintenance, or alternatively provide City with a maintenance schedule for the Mural that will be followed by the Artist. If, for any reason, the Mural is not so maintained, as determined by City, City shall notify Lessee of the need to perform maintenance and/or repairs and identify the actions necessary for compliance with t his provision. If, after thirty (30) days from the date of the City’s notification to Lessee of the need for maintenance and/or repairs, Lessee has not performed the actions identified by City as being necessary for compliance with this provision, City may enter Lessee’s property and perform any necessary maintenance and/or repairs at Lessee ’s expense. Parties acknowledge that failure to maintain or repair the Mural shall be considered harming the Property or limiting the ability of the Owner and Lessee to use the Property for the purpose for which it is intended.
7.2. Access. Lessee hereby grants City and Artist a right of access to the Property to paint the M ural and to perform maintenance and repairs required pursuant to this Agreement, and otherwise to ensure the M ural remains in good condition while this Agreement is in force. The license shall continue at all times while this Agreement is in effect.
Article 8
Removal
8.1 Removal by City. City may remove the M ural at Lessee’s expense if Lessee fails to maintain the Mural in good condition as provided in Section 7.1 or if the term of this Agreement expires.
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8.2 Removal by Lessee. Lessee may remove the Mural at Lessee’s expense if Lessee reasonably determines that the Mural is harming the Property or l imiting Lessee’s ability to use the Property for the purpose for which it is intended.
8.3 Notice to Artist. Prior to removal of the Mural the City or Lessee shall provide Artist and the other Party to this Agreement with ninety (90) days’ notice that they intend to remove the Mural at the end of the notice period and that removal of the Mural may cause destruction, distortion, mutilation, or other modification of the Mural . Artist, may choose to remove the Mural at Artist’s expense. If possible, Lessee shall work with Artist and City to find another suitable site for the Mural.
Article 9
Insurance and Indemnification
9.1 Insurance. Lessee and Artist shall obtain adequate insurance, both in type and amount, as determined by the City’s Risk Manager; provided however, that if either party is unable to obtain insurance coverage, then in lieu thereof that party may agree to indemnify City pursuant to Section 9.2 after submitting a verified statement (a) stating that the party was unabl e to obtain insurance coverage after a reasonable and good faith attempt to do so and (b) identifying the name and address of at least two insurance agents or other sources contacte d for the purpose of obtaining insurance pursuant to this Agreement.
9.2 Indemnification and Coordination. Unless insurance coverage has been obtained in accordance with Section 9.1, Lessee and Artist hereby agree:
(i) to jointly and severally indemnify City for any costs the City incurs in connection with the M ural caused by the actions of the Lessee or Artist, their officers, employees, or agents, or any person who was under their control insofar as permitted by law. Further, Lessee 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 actively negligent or passively negligent, except for those claims, costs, damages, demands, liability, and notices, or any of these, caus ed 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.
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10.2 Copyright. Subject to the restrictions and usage rights and licenses granted to Owner hereunder, and unless otherwise agreed to by the parties 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 Intellectual Property License. Artist hereby grants to City and Lessee, and their agents, authorized contractors, and assigns, an unlimited and irrevocable license to do the following with respect to the Mural:
(i) Lessee and City may use and display the Mural on the Property only.
(ii) Lessee and City may make, display, and distribute, and authorize the making, display, and distribution of photographs and other reproductions of the M ural.
Lessee and City may use such reproductions for any Lessee-related or City-related purpose, including advertising, educational and promotional materials, brochures, books, flyers, postcards, print, broadcast, film, electronic, and multimedia publicity. Lessee and City shall ensure that such reproductions are made in a professional and tasteful manner, in their sole and reasonable judgment. Lessee 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 Lessee 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 reproductions 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 Lessee 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 Lessee and City against any claims brought against Lessee or City alleging that the Mural infringes the intellectual property rights of any third parties.
10.5 Publicity. Lessee and City shall have the right to use Artist’s name, likeness, and biographical information, in connection with the display or reproduction and distribution of the Mural. Artist shall be reas onably available to attend any ceremonies related to the Mural.
10.6 Trademark. In the event that Lessee’s or City’s use of the Mural creates trademark, service mark or trade dress rights in connection with the Mural, Lessee 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 M ural produced under this Agreement, and in consideration of the procedures and remedies specified in this
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Agreement, Artist hereby waives any and all claims, arising at any time and under any circumstances, against L essee and City, its officers, agents, employees, 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 Lessee, City or any future owners of the Property , and its agents, officers and employees, and City. Artist hereby represents and warrants that the Artist is authorized to sign this waiver.
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. Parties agree that should the current Lessee sell or transfer its leasehold interest in the Property, then this Agreement may be transferred to the new leaseholder of the Property.
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 supersede 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.
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11.8 Relationship of the Parties. Nothing contained in the Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the Parties. The relationship between the Parties shall at all times be that of independent contractors. Neither Party shal l have authority to contract for or bind the other in any manner whatsoever. The Agreement confers no rights upon either Party except those expressly granted herein.
11.9 Attorney Fees. In the event either party commences legal proceedings for the enforc ement of this Agreement, the prevailing party shall be entitled to recovery of its attorney’s fees, litigation expenses, and court costs incurred in the 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 payable 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 reli ef 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. Parties agree to notify each other of any changes in their address.
Owner: City of Visalia
Attn: Leslie Caviglia, City Manager
220 N. Santa Fe Street
Visalia, CA 93292
Artist: Colleen Mitchell-Veyna
xxxxx
xxxxx
Lessee: Visalia Rawhide Baseball Club
300 N. Giddings Street
Visalia, CA 93291
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first specified herein.
Owner
______________________________
Leslie Caviglia
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City Manager
Artist
______________________________
Colleen Mitchell-Veyna
Lessee
______________________________
Visalia Rawhide Baseball Club