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HomeMy WebLinkAboutAgenda Report - March 18, 2015 C-13AGENDA ITEM Cqon 13 y CITY OF LODI COUNCIL COMMUNICATION TM AGENDA TITLE: Adopt Resolution Authorizing City Manager to Execute Contract for Seward Johnson Sculpture Exhibit, and Appropriating Art in Public Places Funds for Exhibit and Traffic Control Box Art Project ($30,000) MEETING DATE: March 18, 2015 PREPARED BY: Parks, Recreation, and Cultural Services Director RECOMMENDED ACTION: Adopt resolution authorizing the City Manager to execute contract for Seward Johnson sculpture exhibit, and appropriating Art in Public Places funds for exhibit and the Traffic Control Box Art Project in the amount of $30,000. BACKGROUND INFORMATION: The City Council initially approved an expenditure of $39,500 on November 6, 2013 upon the recommendation of the Art Advisory Board. The Board later learned from the foundation that controls the Seward Johnson sculptures that not all of the desired pieces were available to display in Lodi in 2014 and, as a result, decided to postpone the exhibit until 2015. In the meantime, the appropriated funds in Fiscal Year 2013/14 were not reallocated in the current fiscal year, and the contract for the exhibit was only recently completed. The attached resolution authorizes the City Manager to execute the contract for this exhibit, which is scheduled for display in downtown Lodi from April 15, 2015 through July 15, 2015. The exhibit consists of 10 sculptures, including the highly desired "Forever Marilyn" Monroe likeness, at a cost of $24,000. The Art Advisory Board will choose sculpture locations for the upcoming exhibit at a special meeting in early April. The Johnson sculptures last visited Lodi in 2011 and were a downtown attraction. Similarly, not all of the traffic control box funds appropriated in FY 2013/14 ($4,500) were expended, The unspent balance of $3,300 needs to be appropriated for the final six box art projects and a protective sealant for all 10 boxes in this phase. The overall appropriation of $30,000 includes a contingency of $2,700 for unforeseen expenses related to the sculpture installation, removal and sidewalk repair. These projects are funded by development impact mitigation fees paid by developers and not tax revenue. The funds are restricted to public art projects and not available for other uses. FISCAL IMPACT: Not to exceed $30,000. FUNDING AVAILABLE: Art in Public ces Fund (434.32205, b ance of $165,917.69) C:+G Jordan Ayers, Deputy City Mapager Jeff d Parks, Recreation, and Cultural Services Director APPROVEDq e gn VZ�--ier, City -Manager SCULPTURE LOAN AGREEMENT FOR SEWARD JOHNSON WORK(S) This Agreement is made this 14th day of January, 2015 ("Effective Date") by The Seward Johnson Atelier, Inc. ("TSJA"), a nonprofit corporation organized under the laws of the State of New Jersey, with a place of business at 14 Fairgrounds Road, Hamilton, New Jersey 08619, and the City of Lodi: Division of Arts and Culture ("Exhibitor"), with a place of business At 125 S. Hutchins Street Lodi California 95240. (TSJA and Exhibitor shall each be referred to herein as a "Party" or, collectively, as the "Parties"). WHEREAS, TSJA is a nonprofit corporation organized and operated for charitable and educational purposes as described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, whose mission is to: promote public appreciation and knowledge of art and public placement and view of sculpture; support and lend art to businesses, individuals, charitable organizations, and government entities for public exhibition; and build and revitalize communities through the public placement of art; and WHEREAS, TSJA owns certain works of art created by Seward Johnson for the purposes of public exhibition, display, loan, sale and donation in furtherance of its charitable and educational purposes; and WHEREAS, TSJA desires to loan certain sculptural work(s) of art to Exhibitor for the purposes of public display and education in accordance with the terms of this Agreement; and WHEREAS, Exhibitor wishes to publicly display certain sculpture(s) received from TSJA for charitable purposes. NOW THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, agree as follows: ICY X1.7► KV.1 MET" 10101 Old 1010111 1. Definitions. (a) Loaned Sculpture(s). The term "Loaned Sculpture(s)" shall mean sculpture(s) owned by TSJA created by Seward Johnson, loaned to Exhibitor in accordance with the terms of this Agreement and listed in Exhibit A, including, if any, related frames, pedestals, bases, installation structures, background material crating, packaging and/or any other item supplied by TSJA in connection with any Loaned Sculpture(s). (b) Loan Period. The term "Loan Period" will mean the period from the date on which Exhibitor receives the Loaned Sculpture(s) listed in Exhibit A, until the date that the Exhibitor makes the Loaned Sculpture(s) available for return to Foundation in accordance with the terms of Section 15(a) herein. (c) Exhibit Site. The term "Exhibit Site" shall mean the following location: City of Lodi, CA. (d) Exhibition Period. The term "Exhibition Period" shall mean Exhibitor's planned exhibition at the Exhibit Site, presently scheduled to commence on April 15, 2015 and conclude on July 15, 2015. 2. Term. The term of this Agreement shall be from the Effective Date until sixty (60) days after the Loaned Sculpture(s) are returned to TSJA, or the termination of this Agreement in accordance with the terms of Section 18 herein, whichever is less. 3. Purpose of Loan. (a) Exhibition. Exhibitor agrees to use and display the Loaned Sculpture(s) in furtherance of TSJA's charitable purpose and in accordance with the terms of this Agreement. (b) Public Display_ Exhibitor hereby represents that the Loaned Sculpture(s) will be on continuous public display during the Exhibition Period at venues or spaces including, but not limited to the Exhibit Site, that are customarily open and accessible to the public for a minimum period of thirty (30) hours each week. (b) Admission of public. During the Exhibition Period, Exhibitor will admit the public to the Exhibit Site and any other site where the Loaned Sculpture(s) are displayed in accordance with the terms of this Agreement without discrimination or segregation on the basis of race, religious creed, skin color, national origin, ancestry, physical or mental disability, medical condition, marital status, gender, age, or sexual orientation. 4. Assignment. (a) Exhibitor. Exhibitor may not, at any time, assign or transfer to any parry (i) its rights under this Agreement, (ii) possession of the Loaned Sculpture(s), or (iii) any interest in the Loaned Sculpture(s). (b) Foundation. TSJA may assign all or any portion of its rights under this Agreement to any third party without prior written notice to Exhibitor. 2 5. Care and Safekeenine. (a) Standard of care. Exhibitor will at all times during the Loan Period (24-hour, seven day basis), handle and care for the Loaned Sculpture(s) in accordance with the highest standards for and best practices concerning the treatment and protection of artworks of a similar nature and value adopted and/or used by major art institutions that regularly handle and care for art of the same nature and value as the Loaned Sculpture(s), taking into account the specific nature and value of the Loaned Sculpture(s), its/their materials, the fragility of the Loaned Sculpture(s) and the other unique properties of the Loaned Sculpture(s) as works of art. Exhibitor will check the condition of the Loaned Sculpture(s) a minimum of one (1) time per month for the duration of the Loan Period. (b) Security. Exhibitor will protect the Loaned Sculpture(s) from fire, theft, acts of the public, vandalism, and mishandling, and otherwise provide a safe and secure environment in all respects during the Loan Period, including retrieval, custody, and immediate notification of TSJA in the event of an emergency. (c) Installation. TSJA has the right to supervise and approve the installation of the Loaned Sculpture(s) at the Exhibit Site and the right to specify installation and removal requirements. Unless otherwise agreed upon by the Parties in a signed writing, the Exhibitor will provide professional installation expertise, manpower, and equipment. Once installed, the Loaned Sculpture(s) may not be removed or moved in any manner without TSJA's prior written consent, except in an emergency (for example, fire). (d) Siting / Withdrawal of Sculptures. Siting of any Loaned Sculpture(s) at the Exhibit Site shall be subject to TSJA's sole approval. The Loaned Sculpture(s) shall not moved or relocated from its/their original installation sites at the Exhibit Site, including any re-siting of the Loaned Sculpture(s) to any location other than the Exhibit Site and/or withdrawal of the Loaned Sculpture(s) from public display, without TSJA's prior written consent, except in an emergency (for example, fire). All costs associated with moving, relocating, re-siting and/or withdrawal of any Loaned Sculpture(s) will be paid for by the Party that initiated the moving, relocating, re- siting and/or withdrawal. In the event Exhibitor requests the moving, relocating or re-siting of the Loaned Sculpture(s) or withdrawal of the Loaned Sculpture(s) from display, the Exhibitor shall pay the expenses of an experienced art handler/installer (selected by TSJA) ("Art Handler") to accompany the Loaned Sculpture(s) during such moving, relocating re-siting or withdrawal. Such expenses may include, without limitation, the Art Handler's hourly wages or fees and reasonable economy class travel, lodging, and meal costs. (e) Handling. In every instance, Exhibitor warrants that the Loaned Sculpture(s) will be handled only by trained staff and/or recognized fine art handlers under competent supervision, and under conditions including but not limited to, security measures approved by TSJA. The Loaned Sculpture(s) must not be handled except as expressly permitted in this Agreement. (f) Inspection. Within thirty (30) days after the execution of this Agreement, TSJA may inspect the Exhibit Site. If the Exhibit Site is not approved by TSJA, TSJA may terminate this Agreement without any liability to Exhibitor. At all times during the Loan Period and upon reasonable notice to Exhibitor, TSJA and/or its representatives will have the right to access, inspect, and view the Loaned Sculpture(s). If at any time during the Loan Period TSJA identifies any damage to the Loaned Sculpture(s), TSJA may, in its sole discretion, require immediate remedial measures, remove the damaged Loaned Sculpture(s) and/or terminate this Agreement under Section 18 hereunder without any liability or further obligation to Exhibitor. (g) No waiver. TSJA's approval, review, or supervision of, or attendance at, Exhibitor's facilities, or of any packing, installation, removal, and/or other handling of the Loaned Sculpture(s), will not in any way make TSJA liable or responsible for any such activity or events, or waive or diminish any of Exhibitor's obligations and responsibilities under this Agreement or at law. 6. Loan Fee. Exhibitor agrees to pay and TSJA agrees to accept a total loan fee in the amount of U.S. $24,000.00 (Twenty-four thousand dollars and no cents) for the loan of the Loaned Sculpture(s) pursuant to this Agreement (the "Loan Fee"). The Loan Fee shall be payable by Exhibitor according to the following schedule: $12,000.00 (twelve thousand dollars and no cents) of the Loan Fee will be payable upon execution of the Agreement and $12,000.00 (twelve thousand dollars and no cents) of the Loan Fee will be payable by January 1, 2015. No rights other than those set forth in this Agreement shall pass to Exhibitor upon payment of the Loan Fee to TSJA. 7. Shipping and Installation. (a) Shipping. TSJA shall be fully responsible for properly and securely packing the Loaned Sculpture(s) for shipment and for paying all costs of packing, loading, and professional and secure roundtrip transportation of the Loaned Sculpture(s). TSJA will have the right to specify a carrier of its own choosing, or to approve a professional carrier and to specify packing and transportation requirements, which Exhibitor agrees to follow. In no event will Exhibitor appoint any provider of transportation or packing services or implement any transportation or packing measures for the Loaned Sculpture(s) without TSJA's prior written consent. (b) Installation. Exhibitor will be responsible for all costs associated with installation of the Loaned Sculpture(s) at the Exhibitor's Exhibit Site. 8. Storage. All crate and packing materials used in transporting and packing the Loaned Sculpture(s) must be stored and preserved during the Loan Period by the Exhibitor. Any lost or damaged crate and/or packaging materials will be replaced at Exhibitor's expense. 9. Conservation; Alteration. Exhibitor agrees not to perform any invasive examination or inspection of the Loaned Sculpture(s), and not to conserve, repair, alter, modify, unmat, unframe, remat or reframe, remove or add any base or pedestal to, restore the Loaned Sculpture(s) or any part of the Loaned Sculpture(s), or otherwise disassemble any part of the Loaned Sculpture(s), or substitute or replace any glass or other cover, or consent to or permit any of the foregoing, without the express prior written consent of TSJA. Hanging or mounting devices existing on the 4 Loaned Sculpture(s) may not be removed or repositioned from the Loaned Sculpture(s), nor may any other devices be attached, without TSJA's prior written consent. 10. Damage or Loss. (a) Report. Exhibitor must immediately report to TSJA by telephone (to be followed up in writing delivered within three (3) business days), any evidence of damage to or loss or deterioration of, or endangerment to, the Loaned Sculpture(s) during the Loan Period. (b) Mitigation. Following any damage, loss, deterioration, or endangerment to the Loaned Sculpture(s), without limiting any other provision of this Agreement, Exhibitor must take and pay the cost of any reasonable actions TSJA may require to secure and protect the Loaned Sculpture(s) from further damage, loss, deterioration, or endangerment. Exhibitor (itself or its insurer) will be solely responsible for all costs of conservation necessitated by any damage, loss, deterioration, or endangerment that occurs during the Loan Period. Such costs shall not exceed the value of the damaged Loaned Sculpture(s). 11. Insurance; Liability for Loss or Damage. (a) Insurance Requirements. Unless otherwise agreed upon by the Parties in a signed writing, Exhibitor agrees to: (1) insure the Loaned Sculpture(s) against "all risks" of physical loss or damage while on the Exhibit Site throughout the Loan Period as set forth in this Section 11; and (2) procure and maintain commercial general liability insurance in the aggregate amount of $2,000,000 (two million dollars) insuring against any claims for damage or destruction of property, bodily injury, or death arising out delivery, storage, installation, maintenance, transportation, and/or exhibition of the Loaned Sculpture(s), whether at the Exhibit Site or otherwise. All insurance obtained by Exhibitor to insure the Loaned Sculpture(s) (the "Exhibitor Policies") must be acceptable to TSJA in form and content and must comply with all of the following requirements: (i) Valuation. Exhibitor must insure the Loaned Sculpture(s) fully for the current market value(s), as such value(s) may change from time to time, but no less than the stated value(s) indicated on Exhibit A of this Agreement (the "Stated Value(s)"), each of which Exhibitor agrees represents a fair, reasonable, and accurate value for the associated Loaned Sculpture. TSJA will have the right to solicit new valuations to determine the Stated Value(s) of the Loaned Sculpture(s), as TSJA deems appropriate, in its reasonable discretion. Promptly after receipt of TSJA's written request(s) (including via e-mail), Exhibitor must take any and all necessary steps to ensure that the insurance coverage hereunder is increased accordingly (including without limitation by increasing the Stated Value(s) of the Loaned Sculpture(s) on all Exhibitor Policies). (ii) Additional Insured and Loss Payee. The Exhibitor Policies must name TSJA either as named insured or as additional insured and loss payee in the event of loss, damage, or destruction of the Loaned Sculpture(s). If Exhibitor receives any insurance proceeds in respect to the Loaned Sculpture(s), Exhibitor will only receive and hold such proceeds in trust for TSJA and will promptly deliver all such proceeds to TSJA. 5 However, receipt of any insurance proceeds shall serve as a credit against any amounts otherwise owed by Exhibitor to foundation for damages, restoration or protection to the Loaned Sculpture(s) under this Agreement. (iii) Severability. The Exhibitor Policies must provide for coverage independent from, and regardless of, any defenses insurer may have against, Exhibitor or any other insured. The Exhibitor Policies must provide that coverage under such policies cannot be invalidated or prejudiced by Exhibitor's actions. To the extent that any Exhibitor Policies also provide coverage for Exhibitor's legal liability to TSJA, such insurance must provide for severability of interests, and must not include any exclusion that would preclude suits between insureds and/or between insureds and loss payees. (iv) Partial and Total Loss. If the Loaned Sculpture(s) are damaged, the amount of loss will be the cost and expense of restoration plus the diminution in value. The diminution in value will be measured by taking the greater of the current market value of the Loaned Sculpture(s) immediately before the damage occurred or the Stated Value(s) of the Loaned Sculpture(s) and subtracting the current market value after restoration as determined in the sole discretion of TSJA. If any of the Loaned Sculpture(s) are lost (including, without limitation, stolen) or destroyed, the proceeds from the policies must be paid directly to TSJA in an amount equal to the greater of the current market value of the Loaned Sculpture(s) at the time of loss or the Stated Value(s). (v) No Contest. Exhibitor's insurer(s) must agree not to contest or litigate this Agreement. (vi) Other Insurance. If TSJA elects to maintain its own insurance coverage, such coverage will in all events be secondary and noncontributory to the coverage provided by Exhibitor, and will not release Exhibitor from, or waive or diminish, any of Exhibitor's obligations or liabilities under this Agreement. (vii) Repurchase Right. If any Loaned Sculpture(s) is/are lost (including, without limitation, stolen) and then recovered after TSJA has been reimbursed by the insurer, TSJA will have the option to exchange the insurance proceeds for the recovered Loaned Sculpture(s). (viii) Notice. TSJA must receive at least ninety (90) days prior written notice of cancellation, intent not to renew, or any substantive change in policy terms or rate ("Revision to Insurance Coverage"). After receipt of notice of any Revision to Insurance Coverage, TSJA may, at its sole discretion, terminate this Agreement without liability to Exhibitor. (ix) Lenders paid first. If the Exhibitor Policies are not exclusive to TSJA (if, for example, the Loaned Sculpture(s) are insured under blanket insurance policies), then the Exhibitor Policies must provide that third party lenders to Exhibitor (such as TSJA) have priority of recovery over Exhibitor and any other insureds, additional insureds, and loss 0 payees under the Exhibitor Policies, according to allocation provisions that are acceptable to TSJA, such that TSJA is fully compensated for any loss. (x) Jurisdiction. The Exhibitor Policies must agree to the jurisdiction and governing law provisions of Section 20 of this Agreement; provided, however, that if Exhibitor has used its best efforts to cause the Exhibitor Policies to agree to such jurisdiction and governing law provisions, Exhibitor will not be in breach of this Agreement for failing to comply with the jurisdiction and governing law provisions of Section 19 if Exhibitor's insurers will not agree or will agree only if Exhibitor pays an additional premium or fee. (b) Endorsements; Certificate of Insurance. Exhibitor agrees to notify its insurers of the terms of this Agreement, and to obtain from its insurers an endorsement including any of the provisions of this Section 11 not already included in the policy terms. In addition, Exhibitor will obtain and provide TSJA with a certificate of insurance (i) naming TSJA as a named insured or additional insured and, in either event, loss payee, and (ii) evidencing coverage of the Loaned Sculpture(s) for loss or destruction for the Stated Value(s), in a manner satisfactory to TSJA. Exhibitor agrees to deliver such certificate and endorsement (if applicable), along with a copy of the provisions of the Exhibitor Policies pertaining to: (1) all risks coverage; (2) exclusions; (3) valuation; (4) severability; (5) determination of partial and total loss; (6) arbitration; (7) treatment of other insurance; (8) repurchase right (right to exchange proceeds); and (9) lenders priority of payment to TSJA no fewer than ten (10) business days prior to the commencement of the Loan Period. At TSJA's request, Exhibitor will also deliver a copy of the terms of Exhibitor's policy. (c) Deductibles. Exhibitor agrees to pay any and all deductibles relating to insurance coverage for the Loaned Sculpture(s) and/or relating to any claim made under the general commercial general liability insurance required pursuant to Section 11(a), which deductibles may not exceed an amount approved by TSJA. (d) Separate Insurance Policy, At TSJA's option, in lieu of adding the Loaned Sculpture(s) and TSJA to Exhibitor's existing policy, TSJA may require Exhibitor to obtain and pay for a separate insurance policy covering only the Loaned Sculpture(s), issued by a carrier of TSJA's choice and otherwise meeting the requirements of this Section 11. (e) Disposition of damaged art work. Notwithstanding any other term or provision of this Agreement, in the event of any partial damage to the Loaned Sculpture(s) during the Loan Period, TSJA will, in all events, have the right to retain the Loaned Sculpture(s) and title thereto, and will not have any obligation to transfer the Loaned Sculpture(s) to Exhibitor or Exhibitor's insurers. If there is total damage to any of the Loaned Sculpture(s) during the Loan Period, and if Exhibitor itself pays TSJA for the loss under the provisions of this Agreement, then TSJA will have the right to retain the Loaned Sculpture(s) and title thereto, and will not have any obligation to transfer the Loaned Sculpture(s) to Exhibitor, even if the Loaned Sculpture(s) are worthless. If there is total damage to the Loaned Sculpture(s) during the Loan Period, and if Exhibitor's insurer(s) pay TSJA in full for the loss, Exhibitor will nevertheless use its best efforts to cause its insurer(s) to return the Loaned Sculpture(s) to TSJA, and to ensure that TSJA retains all title thereto, even if the Loaned Sculpture(s) are worthless. If Exhibitor is unable to cause Exhibitor's insurer(s) to return the Loaned Sculpture(s) to TSJA despite Exhibitor's best efforts, then Exhibitor will continue to use its best efforts to ensure that Exhibitor's insurer(s) dispose of the Loaned Sculpture(s) in consultation with TSJA and in a manner respectful of TSJA's wishes. Notwithstanding any other term or provisions of this Agreement, retention by TSJA of the Loaned Sculpture(s) and/or title thereto will in no way affect any right of TSJA's under this Agreement. (f) Exhibitor's liability beyond insurance; duty to indemnify. Exhibitor agrees to assume absolutely and unconditionally all liability, and to fully reimburse and indemnify TSJA for any and all loss, damage and/or destruction relating to the Loaned Sculpture(s), or to any part of the Loaned Sculpture(s), during the Loan Period, where such loss, damage and/or destruction (i) is not fully covered (including all expenses required of TSJA) under the terms of the Exhibitor Policies for any reason, and (ii) the result of or caused directly or indirectly by any negligent, wrongful or intentional act, omission or error of, or other failure to meet any term(s) or special standard(s) of care set forth in this Agreement, of Exhibitor or anyone on its behalf or any of its employees, agents, officers, directors, representatives, or contractors. This obligation to reimburse and indemnify TSJA extends, without limitation, to any shortfall in insurance that results from any instance in which Exhibitor's fine arts insurance does not or cannot meet the insurance or indemnity related terms of this Agreement. Notwithstanding any inference to the contrary contained in this paragraph, Exhibitor's liability will not be limited in any way with regard to any intentional harm (be it an act or omission) by Exhibitor, or anyone on its behalf or any of its employees, agents, officers, directors, representatives, or contractors, during the Loan Period. (g) No Waiver. Exhibitor's failure to provide any information, certificates, or policies required by this Agreement, including without limitation, either a certificate of insurance or an endorsement establishing that all of the insurance requirements set forth herein have been met, and/or TSJA's acceptance of any policy or certificate of insurance not in compliance with the requirements of this Agreement will not in any event be or be deemed to be, or constitute, a waiver by TSJA of any of the requirements of this Agreement or of Exhibitor's covenants, liabilities, or obligations under this Agreement. 12. Copvright; Indemnification; Photography Limitations. (a) Compliance with law. Exhibitor agrees to observe and comply with all copyright, trademark, and other intellectual property laws and regulations, all moral rights including, without limitation, attribution rights, any rights under 17 U.S.C. §106(a), and all rights of privacy and publicity (individually and collectively "I.P. Rights"), relating to the Loaned Sculpture(s), and not to infringe or violate any I.P. Rights. (b) Copyright. It is understood that TSJA is the copyright owner of the Loaned Sculpture(s) and shall retain copyright ownership of the Loaned Sculpture(s), including the exclusive right to make reproductions. Exhibitor agrees never to contest the copyright(s) of TSJA and/or its successors, heirs, and/or assigns in the Loaned Sculpture(s). (c) Reproductions prohibited. Exhibitor may not make or use any reproduction of the Loaned Sculpture(s) including, but not limited to two-dimensional images or photographs depicting the Loaned Sculpture(s), for any commercial purpose without prior written consent of TSJA. (d) Authorized Images. Exhibitor may publicly display, reproduce, and distribute photographic reproductions of Loaned Sculpture(s) approved by TSJA to promote and market Exhibitor's exhibitions which include the Loaned Sculpture(s) ("Authorized Images"). Copies of all of Exhibitor's materials containing Authorized Images shall be provided to TSJA for TSJA's records. All Authorized Images must show the appropriate notice as provided below in Section 12(f). All Authorized Images must show the appropriate notice as provided below in Section 12(f)(i) - (iv). All of Exhibitor's rights to use Authorized Images provided herein shall cease on the earliest of: (1) the close of the Exhibition Period; or (3) the date of termination of this Agreement pursuant to Section 18 herein. (e) Use of photographic reproductions. Other than as provided in Section 12(c) and 12(d), Exhibitor may not use photographic reproductions of the Loaned Sculpture(s) for any purpose, including postcards, note cards, posters, books, CDs, DVDs, and prints, without TSJA's prior written approval. (f) Copyright Notice. (i) Credit line for Authorized Images. The following credit line shall appear adjacent to each Authorized Image: "[title of the Loaned Sculpture] by Seward Johnson, On Loan From The Seward Johnson Atelier, Inc." (ii) Copyright notice for individual Authorized Images. Unless otherwise instructed by TSJA, in addition to the credit line required by Section 12(f)(i) above, the following copyright notice shall appear adjacent to individual Authorized Images in which Foundation owns the copyright: "Photograph — © [year of publication of photograph], The Seward Johnson Atelier, Inc." In the event TSJA advises Exhibitor that TSJA is not the copyright owner of the Authorized Image, the notice above must be modified to replace "The Seward Johnson Atelier, Inc." with the name of the photographer or party who owns the copyright in the Authorized Image. (iii) Copyright notice for materials containing Authorized Images. If Exhibitor elects to produce materials containing Authorized Images, the following copyright notice shall appear in each copy thereof - 0 "© [year of publication], [Exhibitor], All rights reserved" Unless otherwise instructed by TSJA the following additional copyright notice must appear directly below Exhibitor's copyright notice: "The photographs contained herein are © [include the most recent publication date for any Authorized Image used] or earlier, The Sculpture Foundation, Inc., except where otherwise noted, and are used with permission of The Seward Johnson Atelier, Inc. All rights reserved." (iv) Notices not mutually exclusive. The credit lines and copyright notices above are not mutually exclusive and, depending on Exhibitor's respective use, circumstances may require use of one or more of the credit line and/or notices. 13. Copies of Exhibitor Materials. Use of Foundation photographs in catalogues and other promotional media is subject to TSJA's prior consent. Exhibitor will provide TSJA with twenty (20) complimentary copies of any catalogue (including hardback, CD, DVD and any other media) and other written material that it may publish or distribute or authorize relating to the Loaned Sculpture(s) and/or the Exhibitor's Exhibit Site. 14. Return/Removal of Loaned Sculptures. (a) Unless otherwise agreed upon by the Parties in a signed writing pursuant to Section 7(a) of this Agreement, Exhibitor agrees to make the Loaned Sculpture(s) available for return to Foundation no later than one (1) week after the end of the Exhibition Period or within five (5) days of receipt of a notice of termination from TSJA ("Termination Notice") if this Agreement is terminated under Section 18 herein. Exhibitor will not have any right to retain the Loaned Sculpture(s) after the end of the Exhibition Period under any circumstances. (b) In the event that the Loaned Sculpture(s) are not made available for return to TSJA in accordance with this Agreement, TSJA and/or its representative(s), at Exhibitor's cost and expense, will have the right to terminate this Agreement and immediately retrieve the Loaned Sculptures (without waiver of any claims), including without limitation, and to the extent allowed by law, enter Exhibitor's premises without prior notice and immediately retrieve the Loaned Sculpture(s) without responsibility for any unintentional loss or damage due to such removal and without liability to Exhibitor. (c) Exhibitor will only release the Loaned Sculpture(s) to, and take instructions concerning the Loaned Sculpture(s) from, TSJA or its duly authorized agent. In the case of an agent acting on TSJA's behalf, Exhibitor must not act without reliable written proof of the agent's authorization from TSJA. 10 15. Responsibility. (a) No liability or warranty. TSJA will bear no expense relating to the lending of the Loaned Sculpture(s) to Exhibitor. TSJA does not make (and hereby expressly disclaims) any and all warranties or representations (express or implied), including to Exhibitor or otherwise, in respect of the Loaned Sculpture(s), or any right in the Loaned Sculpture(s), including, but not limited to, title, quiet enjoyment, or authenticity. However, Foundation represents and warrants that it is the copyright owner of the Loaned Sculptures and agrees to defend, indemnify, and hold harmless Exhibitor against any third party claims for copyright infringement. (b) Indemnification. In all events, Exhibitor agrees to and will release, indemnify, and defend TSJA and its trustees, directors, officers, employees, contractors, representatives, and agents from and against all costs, losses, taxes, assessments, demands, fees, and expenses (including attorneys' fees and costs), claims, damages, suits, actions and/or proceedings, threatened against or suffered by Exhibitor or TSJA or their respective trustees, directors, officers, employees, or agents, and relating to or arising out of this Agreement; any breach or failure to perform by Exhibitor under this Agreement; any act or omission by or on behalf of Exhibitor or any director, officer, employee, agent, contractor, representative, or invitee of Exhibitor ("Exhibitor's Agents"); any prohibited use of I.P. Rights by Exhibitor or Exhibitor's Agents not consistent with this Agreement and/or the lending of the Loaned Sculpture(s) to Exhibitor, including, without limitation, the transportation, possession, preservation, reproduction, and/or display of the Loaned Sculpture(s), and the return of the Loaned Sculpture(s) to TSJA. 16. Ownership. Exhibitor will at all times recognize only TSJA as the legal owner of the Loaned Sculpture(s), and will not recognize nor entertain any competing claims by any third party in respect of the Loaned Sculpture(s). Exhibitor agrees never to contest TSJA's and/or its successors', heirs', and/or assigns' title in the Loaned Sculpture(s). If Exhibitor becomes aware of any claim or circumstances that may give rise to a claim in respect of the Loaned Sculpture(s), it will immediately inform TSJA and take such reasonable steps as TSJA may require (including the immediate removal of the Loaned Sculptures from the Exhibitor's Exhibit Site), at the Exhibitor's sole cost and expense. Exhibitor hereby waives any and all interest and claim in the Loaned Sculpture(s), and agrees not to in any way encumber, claim or assert or cause or allow any other party to claim, any interest of any kind in the Loaned Sculptures. 17. Confidentiality. Except as required by the California Public Records Act, the terms of this Agreement, including, but not limited to, the Loan Fee (if any), the condition of the Loaned Sculpture(s), all transportation and shipping arrangements, and all additional information designated or provided by TSJA as confidential relating to this Agreement and the Loaned Sculpture(s), must be kept confidential by Exhibitor. Except as reasonably related and necessary to fulfilling its obligations under this Agreement, Exhibitor will not publish or disclose such information or permit any trustee, director, officer, agent, representative, employee, or affiliate of Exhibitor to publish or disclose such information, to any person, by any means, at any time, without TSJA's prior written consent. 11 18. Termination. (a) Breach. TSJA may, at any time, terminate this Agreement, without any liability to or further obligation to the Exhibitor, in the event of a breach by Exhibitor of any conditions or term of this Agreement, including, but not limited to damage to the Loaned Sculpture(s). If the Agreement is terminated by TSJA, TSJA shall notify the Exhibitor of such termination and provide a Termination Notice to Exhibitor. Exhibitor shall make the Loaned Sculpture(s) available for return shipping pursuant to the terms of Section 14 herein within five (5) days of receipt of the Termination Notice. (b) Termination upon transfer of assets. Should ownership of an individual Loaned Sculpture be legally transferred from TSJA to Exhibitor, this Agreement shall terminate with respect to such Loaned Sculpture upon the effective date of such transfer. 19. Applicable Law; Exclusive Jurisdiction; Venue and Removal. (a) Applicable law. This Agreement and all disputes relating to or arising out of this Agreement (including insurance disputes, unless prohibited by the insurance laws and regulations applicable to the policy(ies)) will be governed by and construed in accordance with the laws of any jurisdiction that is most favorable to TSJA as an insured, without giving effect to the provisions of such jurisdiction relating to conflicts or choice of law. (b) Exclusive jurisdiction; venue and removal. All disputes and matters arising under, in connection with, or incidental to this Agreement and/or the Loaned Sculpture(s), including, but not limited to, any dispute involving insurance coverage or proceeds, will be litigated, if at all, in and before a federal court with diversity jurisdiction in the State of New Jersey or the Superior Court of New Jersey located in Mercer County, New Jersey, USA, to the exclusion of other courts of other states and to the exclusion of other venues. Exhibitor and TSJA EXPRESSLY CONSENT TO THE JURISDICTION OF EITHER COURT and agree that this venue is convenient and not to seek a change of venue or to seek to dismiss the action on the ground of forum non conveniens, not to assert any defense based on lack of jurisdiction of this court, and not to bring any action arising under, in connection with, or incidental to this Agreement in any other court. 20. Taxes. Exhibitor agrees to be fully responsible for (and to promptly pay) any and all levies, liens, taxes (including, but not limited to, personal property taxes and/or GST, VAT, or similar taxes) and/or all other assessments of any kind or nature relating to the lending of the Loaned Sculpture(s) for the use by Exhibitor of the Loaned Sculpture(s) during the Loan Period, including, but not limited to, the transportation, possession, presence, and/or display of the Loaned Sculpture(s). 12 21. Miscellaneous. This Agreement may be executed in counterparts, each of which shall constitute an original and both of which shall constitute the same instrument. Nothing in this Agreement will be deemed to create a joint venture, partnership, lease, or principal -agent, employer-employee, or any similar relationship or arrangement, between Exhibitor and TSJA. Nothing in this Agreement will be construed to give any party (other than Exhibitor and TSJA, and their successors and assigns as provided herein) any legal or equitable right, benefit, remedy, or claim in respect of this Agreement and Exhibitor's and/or TSJA's covenants and obligations hereunder. Any waivers under this Agreement must be in writing to be effective. The party signing this Agreement on behalf of Exhibitor hereby represents and warrants that s/he is duly authorized to sign this Agreement on behalf of and bind Exhibitor as provided in this Agreement. The terms and conditions of Sections 11, including, but not limited to full satisfaction of all obligations to reimburse TSJA thereunder, 12, 14, 15, 17, 18, 19, 20, 21 and 22 of this Agreement will survive the expiration of this Agreement. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such term or provision or portion thereof as to that application will be severed from the rest of this Agreement and such event will not impact the effectiveness or validity of the remainder of such provision or any other provision or term hereof. If at any time TSJA's consent or approval is required as set forth in this Agreement, such approval or consent may be given or denied by TSJA in its sole discretion. The captions and descriptive headings of this Agreement are for convenience only and shall be of no force or effect in construing or interpreting any of the provisions of this Agreement. 22. Compliance with Laws and Regulations. Exhibitor shall adhere to all federal and state laws and regulations applicable to its obligations and responsibilities under this Agreement. 23. Notice. All notices, requests, demands, consents, approvals, and other communications (including any change to this provision) required to be given in writing under this Agreement are considered given upon receipt if delivered personally or sent by recognized courier, certified mail (return receipt requested and postage -prepaid), or fax (if delivery is confirmed by the sender), as follows: For Exhibitor: Ms. Jennifer Winn Recreation Manager Hutchins Street Square 125 S. Hutchins Street Lodi, CA 95240 209-333-6800 x 6891 209-333-5906 fax 13 For TSJA: Curator 2525 Michigan Avenue, Ste. A-6 Santa Monica, California 90404 (310) 264-2400 (310) 264-2403 fax With a Copy to: Janice D. Magdich City Attorney City of Lodi PO Box 3006 Lodi, CA 95241 209-333-6701 209-333-6807 fax With a Copy to: Chief Administrative Officer The Seward Johnson Atelier, Inc. 14 Fairgrounds Road Hamilton, NJ 08619 (609) 689-1040 (609) 689-1059 fax 24. Entire Agreement. This Agreement (including all Exhibit(s) hereto) constitutes the entire agreement between TSJA and Exhibitor with respect to the subject matter hereof. Any prior agreements, promises, negotiations, or representations that may have been made or relied upon that are not expressly set forth in this Agreement are of no force or effect. This Agreement may be modified only in writing, which writing must be signed by both parties. TSJA and Exhibitor execute this Agreement by their duly authorized agents as of the Effective Date. THE SEWARD JOHNSON ATELIER, INC. By: Name: Paula Stoeke Title: Director and Curator Exhibits Exhibit A: Sculpture(s) on Loan from TSJA Exhibit B: Maintenance Instructions 14 EXHIBITOR By: Name: Stephen Schwabauer Title: City Manager ATTEST: Jennifer Robison, City Clerk App ed as to form: s --------------- nice D. M dich, City Attorney With a Copy to: Janice D. Magdich City Attorney City of Lodi PO Box 3006 Lodi, CA 95241 209-333-6701 209-333-6807 fax With a Copy to: Chief Administrative Officer The Seward Johnson Atelier, In 14 Fairgrounds Road Hamilton, NJ 08619 (609)689-1040 (609) 689-1059 fax 24. Entire Agreement. This Agreement (including all Exhibit(s) hereto) consti entire agreement between TSJA and Exhibitor with respect to the subject matter hei prior agreements, promises, negotiations, or representations that may have been ma upon that are not expressly set forth in this Agreement are of no force or effect. Th may be modified only in writing, which writing must be signed by both parties. TSJA and Exhibitor execute this Agreement by their duly authorized agents Effective Date. tle: Oirect4 and Exhibits Narne: tephen chwabauer Title: City Manager ATTEST: Jennifer Robison, City Clerk roved as to form: Janice . Magdich, City Atton Exhibit A: Sculpture(s) on Loan from TSJA Exhibit B: Maintenance Instructions 4 EXHIBIT A Sculpture(s) on Loan from TSJA 1. A Little to the Right $120,000.00 2. Frequent Flyers $120,000.00 3. God Bless America $180,000.00 4. Los Mariachis $150,000.00 5. Time's Up $150,000.00 6. Waiting to Cross $80,000.00 7. Coming Home $150,000.00 8. Captured $86,000.00 9. Forever Marilyn $150,000.00 10. Unconditional Surrender $140,000.00 15 EXHIBIT B Maintenance Instructions Seward Johnson's Painted Bronze Sculpture Recommended Maintenance Procedure The best way to protect against corrosion is by implementing regular maintenance performed by the artist's studio once every five years. We also suggest a localized program of regular dusting and cleaning. Surfaces should be visually inspected frequently with special attention given to areas exposed to handling, abrasion, or where pockets of water may pool during rain or from daily sprinklers. Indoor installations need regular dusting with occasional cleaning. Outdoor installations need more frequent cleaning, generally semi-annually or possibly quarterly depending on location, but at least once a year. If you are hosting an exhibition, or work of art, in a highly trafficked urban locale, it is recommended that you wash the sculpture with good water and very mild non-ionic or neutral detergent at least twice a week. While cleaning, please inspect closely, to make sure there are no inconsistencies developing in the paint due to atmospheric influences. Small areas of bare metal on a larger whole will tend to corrode faster than normal and it is important to insulate those areas when they appear. Re- painting, with the help of the artist's studio, should be done when the condition of the paint layer is compromised beyond the scope of a small touch up. CLEANING PROCEDURE: Simple cleaning with mild non-ionic or neutral detergent (see below list) using a soft non-metallic scrub brush, sponge or cloth. Never use a rough -bristled or wire -bristled brush. Rinse well with water and dry thoroughly by hand. It is recommended not to wax the painted sculptures. First, because of the durability of the paint that is a two part component urethane Clear. This Clear, with or without waxing, will last just as long. Secondly the wax will get into the texture and porosity of the piece. This makes it difficult to remove and inhibits future restoration. Lastly, the wax, on a hot day gets soft, which traps dust. This makes the colors look extremely dirty, especially the whites. NON-IONIC AND NEUTRAL DETERGENT: (used in a 1:10 ratio of soap to water) Orvis Liquid Soap Conservation Materials, Ltd. 1165 Marietta Way Sparks, NV 89431 16 Non -Ionic Detergent* Industrial Soap Company 2930 Marker Street St. Louis, MO 63103 * Ivory Liquid, Joy, and other neutral detergent soap Feel free to contact us for additional information or details at: The Seward Johnson Atelier (tel) 310 264 2400 (fax) 310 264 2403 info@sewardjohnsonatelier.org 17 1. AA# 2. JV# Please provide a description of the project, the total cost of the project, as well as justification for the requested adjustment. If you need more space, use an additional sheet and attach to this form. At the recommendation of the Art Advisory Board, Art in Public Places funds will be used to rent Seward Johnson sculptures for downtown Lodi from April 15, 2015 through July 15, 2015, and continue funding the traffic control box art I has authorized the appropriation adjustment, complete the following: Date: 3/18/15 Res No: „ /) „ Attach copy of resolution to this form. Department Head Signature: Deputy City Manager/Internal Services Manager Date Submit completed form to the Budget Division with any required documentation. Final approval will be provided in electronic copy format. FUND # BUS. UNIT # ACCOUNT # ACCOUNT TITLE AMOUNT A. 434 N/A 32205 AiPP Fund balance $30,000 SOURCE OF FINANCING B. 434 43499000 77020 Seward Johnson sculpture $26,700 USE OF FINANCING 434 43499000 77020 Traffic Control Box art $3,300 Please provide a description of the project, the total cost of the project, as well as justification for the requested adjustment. If you need more space, use an additional sheet and attach to this form. At the recommendation of the Art Advisory Board, Art in Public Places funds will be used to rent Seward Johnson sculptures for downtown Lodi from April 15, 2015 through July 15, 2015, and continue funding the traffic control box art I has authorized the appropriation adjustment, complete the following: Date: 3/18/15 Res No: „ /) „ Attach copy of resolution to this form. Department Head Signature: Deputy City Manager/Internal Services Manager Date Submit completed form to the Budget Division with any required documentation. Final approval will be provided in electronic copy format. RESOLUTION NO. 2015-34 A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE THE CONTRACT FOR THE SEWARD JOHNSON SCULPTURE EXHIBIT AND FURTHER APPROPRIATING FUNDS FOR THE EXHIBIT AND THE TRAFFIC CONTROL BOX ART PROJECT WHEREAS, the City Council initially approved an expenditure of $39,500 on November 6, 2013, upon the recommendation of the Art Advisory Board; and WHEREAS, the Board later learned from the foundation that controls the Seward Johnson sculptures that not all of the desired pieces were available to display in Lodi in 2014 and, as a result, decided to postpone the exhibit until 2015; and WHEREAS, the exhibit is scheduled for display in downtown Lodi from April 15, 2015 through July 15, 2015; and WHEREAS, the exhibit consists of 10 sculptures at a cost of $24,000; and WHEREAS, not all of the Traffic Control Box Art Project funds appropriated in FY 2013/14 ($4,500) were expended, and the unspent balance of $3,300 needs to be appropriated for the final six box art projects and for a protective sealant for all 10 boxes in this phase; and WHEREAS, the overall appropriation of $30,000 includes a contingency of $2,700 for unforeseen expenses related to the sculpture installation, removal, and sidewalk repair. NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby authorize the City Manager to execute the contract for the Seward Johnson Sculpture Exhibit; and BE IT FURTHER RESOLVED, that Art in Public Places funds in the amount of $30,000 be appropriated for the Seward Johnson Sculpture Exhibit and Traffic Control Box Art Project. Dated: March 18, 2015 hereby certify that Resolution No. 2015-34 was passed and adopted by the Lodi City Council in a regular meeting held March 18, 2015, by the following vote: AYES: COUNCIL MEMBERS — Chandler, Nakanishi, and Mayor Johnson NOES: COUNCIL MEMBERS — None ABSENT: COUNCIL MEMBERS — Kuehne and Mounce ABSTAIN: COUNCIL MEMBERS — None J NIFER FERRAIOLO City Clerk 2015-34