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HomeMy WebLinkAboutA9481 - Old Las Palmas Neighborhood Organization55575.18110\42498439.2 ENCROACHMENT LICENSE AND ARTWORK DONATION AGREEMENT BETWEEN OLD LAS PALMAS NEIGHBORHOOD ORGANIZATION AND THE CITY OF PALM SPRINGS AND FOR PRINCE AND BLUE BELLY CRAB ARTWORK IN PUBLIC RIGHT OF WAY MEDIAN This Encroachment License and Artwork Donation Agreement (“Agreement”) is entered into on ___________________, (“Effective Date”), by and between Old Las Palmas Neighborhood Organization, a California nonprofit public benefit corporation, (“OLPNO”) and the City of Palm Springs, a California charter city (“City”). OLPNO and City and sometimes herein referred to individually as “Party” and jointly as “Parties.” RECITALS A. OLPNO desires to coordinate, purchase, and oversee installation of two metal sculptures entitled Prince and Blue Belly Crab, (“Artwork”) by Delos Van Earl (“Artist”). When installed, the Artwork will encroach upon the City-owned West Vista Chino median, west of North Palm Canyon Drive and east of Belardo Road, Palm Springs, California in the Old Las Palmas Neighborhood (“Encroachment Area”). The Encroachment Area is described and shown in Exhibit “A,” attached hereto and incorporated herewith. B. City agrees to issue an encroachment permit (“Permit”) to OLPNO so that OLPNO may arrange for the installation of the Artwork in the Encroachment Area. City further agrees to award a grant to OLPNO for the coordination, purchase, and installation of the Artwork. C. Following the completion and acceptance of the Artwork by OLPNO, OLPNO agrees to donate the Artwork to the City to be included as part of the City’s public art collection. D. City is willing to accept the donation of the Artwork under the terms and conditions herein. NOW THEREFORE, the Parties agree as follows: AGREEMENT 1. Recitals. The Parties acknowledge the accuracy of the foregoing recitals and Exhibit, which are incorporated herein by this reference. 2. Term of Agreement. The term of this AGREEMENT (“Agreement Term”) shall commence on the Effective Date and shall extend until the date that the City formally accepts the donation of the Artwork from OLPNO pursuant to the provisions of this Agreement. 3. Termination. 3.1 The City and OLPNO can mutually agree in writing to terminate this Agreement at any time. The City may terminate this Agreement without cause upon thirty (30) days written notice to OLPNO. In such event, the City may, at its discretion, assume responsibility for completing the coordination, purchase, and installation of the Artwork. Docusign Envelope ID: F41294DC-B200-42FC-A2E1-16CA33328EC1 8/20/2024 55575.18110\42498439.2 3.2 Upon termination of this Agreement for any reason: (a) The License granted pursuant to section 4.1 shall terminate, and, if directed by the City, OLPNO shall remove the Artwork and restore the Encroachment Area to its former condition at OLPNO’s sole cost and expense. If OLPNO fails to remove the Artwork and restore the Encroachment Area within thirty (30) days after termination, the City shall have the right to do so, and OLPNO shall reimburse the City for all expenses incurred. (b) OLPNO shall provide the City with any documents, correspondence, or materials related to the coordination, purchase, and installation of the Artwork. (c) Any obligations or liabilities of the Parties that arose prior to the termination date shall survive termination of this Agreement. 4. License. 4.1 Grant of License. City grants a non-exclusive License to OLPNO to install the Artwork within the Encroachment Area upon all the terms and conditions of the Permit and this Agreement. OLPNO acknowledges that City is acting only in its proprietary capacity as the owner of the Encroachment Area and not in any regulatory fashion. The Parties shall not consider this Agreement as approval of any applicable permits, licenses, or other governmental approvals required for the installation or construction needed for this use described herein. OLPNO shall have the right of non-exclusive ingress and egress to the Encroachment Area seven (7) days a week, twenty four (24) hours a day, to install and maintain the Artwork, subject to the limitations set forth herein. 4.2 Term and Termination of License. The term of this License shall commence on the Effective Date and will expire on the date that the City formally accepts the Artwork as a donation from OLPNO pursuant to the provisions of this Agreement (“License Term”). The License is terminable with or without cause by City at any time during the License Term. Upon City’s thirty (30) days’ notice during the License Term, OLPNO shall remove the Artwork and restore the Encroachment Area to its former condition, at OLPNO’s sole cost and expense. In the event OLPNO fails to remove the Artwork and restore the Encroachment Area within thirty (30) days’ notice from City, City shall have the right to do so without notice to OLPNO. OLPNO shall immediately reimburse the City for all expenses incurred by City in the removal of the Artwork and restoration of the Encroachment Area on the City Property, including storage of the Artwork after removal from the Encroachment Area. Said amounts shall accrue interest from the date the expenses were incurred by City at the maximum non-usurious interest rate permitted by law. 4.3 Acquisition and Ownership of Artwork during License Term. OLPNO shall be responsible for acquiring the Artwork from Artist. City agrees to provide a grant to OLPNO in the amount of Fifty Thousand Dollars ($50,000.00) to coordinate with Artist, purchase, and install the Artwork. During the License Term, OLPNO shall be the owner of the Artwork. 4.4 Installation Schedule and Procedures. (a) Prior to Installation. Prior to commencement of installation of the Artwork, OLPNO shall (1) ensure that Artist signs the Public Artwork Agreement and Release (“Artist Docusign Envelope ID: F41294DC-B200-42FC-A2E1-16CA33328EC1 55575.18110\42498439.2 Agreement”) attached hereto as Exhibit “B,” and (2) return said executed Artist Agreement to City. (b) Commencement of Installation. OLPNO shall commence the installation of the Artwork within a reasonable amount of time, in no event to exceed ninety (90) days following the Effective Date. OLPNO shall notify the City at least twenty-four (24) hours prior to beginning any physical work on the in the Encroachment Area and on the Artwork installation. OLPNO shall also notify the City upon completion of the Artwork. (c) Installation of Artwork. The Artwork will be installed within the Encroachment Area as illustrated in Exhibit “A.” Pursuant to this Agreement, the Artwork shall be installed in a careful and workmanlike manner and in accordance with plans and specifications to be submitted to and approved by the City of Palm Springs Department of Public Works and Engineering Department before OLPNO commences installation of Artwork within the Encroachment Area or commences construction of any work on the Encroachment Area. 4.5 Maintenance during License Term. OLPNO shall have the right and obligation to maintain and repair, at its own cost and expense, the Artwork and to keep it and the Encroachment Area in a neat, clean, first-class condition and in good order and repair, free of trash and debris at all times during the License Term. As the Artwork is on a public right-of-way median, OLPNO shall ensure that any excavations, backfill and repaving, installation of any concrete base or footing, as necessary, required by OLPNO to install the Artwork are maintained as required by the City, in accordance with applicable City standards or as directed by the City Engineer. OLPNO hereby agrees to perform such additional repairs and/or maintenance work on the Artwork and in the Encroachment Area within fifteen (15) calendar days’ notice from City. In the event that OLPNO does not maintain the Artwork as required herein, the City will have the option to either (1) terminate the License as more particularly provided in Section 4.2 or, (2) after giving OLPNO reasonable notice, to make such repairs or perform such maintenance as is required. If City performs the required repairs and/or maintenance, City shall submit an invoice to OLPNO for payment of the repairs and/or maintenance work performed by City, including administrative fees, and OLPNO shall pay such invoice received within thirty (30) days for such work performed. Failure to pay any invoice submitted to OLPNO by City within thirty (30) days’ notice from City shall automatically terminate the License herein granted and may pursue an action for damages against OLPNO. (a) Construction/Use by Others within Encroachment Area. OLPNO hereby acknowledges that the License herein granted by City is non-exclusive, and that City may grant subsequent encroachments within the Encroachment Area to other parties, including public utility companies, other governmental agencies, and private parties. (b) Relocation of Artwork within City Right-of-Way. In the event of a conflict with any other proposed use by any public agency or private party whose proposed utility is approved for installation by City within the Encroachment Area, OLPNO hereby agrees to relocate the Artwork, at OLPNO’s sole expense, as necessary to remove any such conflict with any other proposed use by any public agency or private party. OLPNO shall prepare relocation plans for the Artwork and submit to the City Engineer, as well as the affected public agency or private party, for review and comment within thirty (30) days’ notice from City of the conflict. OLPNO shall Docusign Envelope ID: F41294DC-B200-42FC-A2E1-16CA33328EC1 55575.18110\42498439.2 relocate the Artwork, as directed by the City, pursuant to this License, except, however, that relocation of the Artwork, as approved by City, shall commence no later than thirty (30) days approval of relocation plans for the Artwork by City. 4.6 Installation and Maintenance Safety Precautions. OLPNO shall, in connection with the construction and maintenance of the Artwork during the License Term, provide, install, and maintain such lights, barriers, warning signs or other safety precautions as are reasonably necessary to protect anyone utilizing the Encroachment Area for whatever reason. In the event that the City determines that suitable safety precautions are not being provided by OLPNO, the City may, after two (2) days’ notice from City to OLPNO, provide, install and maintain such safety precautions. If the City provides the safety precautions pursuant to this Section, City shall submit an invoice to OLPNO for payment of the safety precautions installed by City, including administrative fees, and OLPNO shall pay such invoice received within thirty (30) days for such work performed. Failure to pay any invoice submitted to OLPNO by City within thirty (30) days shall automatically terminate the License herein granted and may pursue an action for damages against OLPNO. 5. Donation and Acceptance. 5.1 Donation. Upon installation, OLPNO shall convey by irrevocable donation the Artwork and its legal title to City. OLPNO shall represent that (1) it is the sole owner of the Artwork, (2) there are no liens or encumbrances on the Artwork, and (3) OLPNO possesses the legal right to convey title to the Artwork. OLPNO shall convey all intellectual property rights, including copyrights, in the Artwork and hereby waives all rights under the Visual Artists Rights Act of 1990, 17 U.S.C. §§ 106A and 113(d) (“VARA”), the California Art Preservation Act, Cal. Civ. Code, §§ 987, 989 (“CAPA”), and any other local, state, foreign or international law, as currently drafted or as may be hereafter amended, that conveys the same or similar rights (“Moral Rights Laws”). 5.2 Acceptance. Upon conveyance by OLPNO, City shall inspect the Artwork. If the Artwork and installation meets City’s expectations, City shall formally accept the donation of the Artwork under the terms, qualifications and conditions as set forth in this Agreement. Upon acceptance, all rights of title and ownership will be conveyed to the City and the Artwork covered by this Agreement shall become the sole property of the City and all future decisions regarding the use and continued ownership of such property will be within the sole and unconditional discretion of the City. The License Term shall automatically terminate upon acceptance by City and City shall take full responsibility over maintenance of the Artwork and the former Encroachment Area. 5.3 Removal or Relocation. The City retains the right to relocate or permanently remove the Artwork from public display for any reason, in the sole discretion of the City, including, but not limited to: hazards to public health, safety or welfare; unsightly or deteriorated conditions of the artwork; or the need to access, repair, and maintain public facilities. 6. Indemnification. To the furthest extent allowed by law, OLPNO shall indemnify, hold harmless, and defend City and its officers, officials, employees, agents, and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage, Docusign Envelope ID: F41294DC-B200-42FC-A2E1-16CA33328EC1 55575.18110\42498439.2 including damage by fire or other casualty) incurred by City, and from any and all claims, demands and actions in law or equity (including attorneys’ fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of OLPNO’s: (i) occupancy, maintenance and/or use of the Artwork and/or Encroachment Area; or (ii) performance of, or failure to perform, the terms of this Agreement. OLPNO’s obligations under the preceding sentence shall apply to any negligence of City, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or by the willful misconduct, of City or its officers, officials, employees, agents or volunteers. 6.1 OLPNO’s occupancy, maintenance and use of the Artwork and Encroachment Area shall be at OLPNO’s sole risk and expense. OLPNO accepts all risk relating to OLPNO’s: (i) occupancy, maintenance and/or use of the Artwork or Encroachment Area; and (ii) the performance of, or failure to perform, the terms of this License. City shall not be liable to OLPNO or OLPNO’s insurer(s) for, and OLPNO and its insurer(s) hereby waives and releases City from, any and all loss, liability, fines, penalties, forfeitures, costs or damages resulting from or attributable to an occurrence on or about the Encroachment Area in any way related to the OLPNO’s operations and activities, including installation and maintenance of the Artwork. OLPNO shall immediately notify City of any occurrence on the Encroachment Area resulting in injury or death to any person or damage to property of any person. 6.2 To the extent that it is necessary for OLPNO to contract for the installation, maintenance, or repair of the Artwork, OLPNO shall require each consultant and contractor to indemnify, hold harmless, defend and release City and its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraphs. This entire Section 6 shall survive termination or expiration of this Agreement. 6.3 OLPNO will promptly pay any judgment rendered against the City, its officers, agents, or employees for any such claims or liabilities and OLPNO agrees to save and hold the City, its officers, agents, and employees harmless there from. 6.4 In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against OLPNO for such damages or other claims arising out of the location, construction, maintenance, relocation or removal of the Artwork, OLPNO agrees to pay the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including, but not limited to, legal costs and attorneys’ fees. 7. Insurance. OLPNO shall procure and maintain, at its sole cost and expense, and submit concurrently with its execution of this License, in a form and content satisfactory to City, public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from OLPNO’s use of the Artwork within the Encroachment Area under this License, and sufficient to cover OLPNO’s obligations under Section 6 of this License. Insurance shall be kept in full force and effect during the term of this License, and shall not be cancelable without thirty (30) days written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insured by original endorsement shall be delivered to and approved by City prior to City's approval of this License. The procuring of such Docusign Envelope ID: F41294DC-B200-42FC-A2E1-16CA33328EC1 55575.18110\42498439.2 insurance and the delivery of policies, certificates, and endorsements evidencing the same shall not be construed as a limitation of OLPNO’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers. 7.1 Minimum Scope of Insurance. The minimum amount of insurance required hereunder shall be as follows: (a) Comprehensive general liability and personal injury with limits of at least One Million Dollars ($1,000,000) combined single limit coverage per occurrence. (b) For any claims related to this License, OLPNO’s insurance coverage shall be primary insurance as respects City and its respective elected officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of OLPNO’s insurance and shall not contribute with it. 7.2 Sufficiency of Insurers. Insurance required herein shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VIII, or better, unless otherwise acceptable to the City. 7.3 Verification of Coverage. OLPNO shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this License. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before approval of this License. City reserves the right to require OLPNO’s insurers to provide complete, certified copies of all required insurance policies at any time. Verification of Insurance Coverage may be provided by: (1) an approved General Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: (a) “The City of Palm Springs, its officials, employees and agents are named as an additional insured” may be included in this statement). (b) “This insurance is primary and non-contributory over any insurance or self- insurance the City may have” may be included in this statement). (c) “Should any of the above described policies be cancelled before the expiration date thereof, the issuing company will mail 30 days written notice t o the Certificate Holder named.” Language such as, “endeavor to mail” and “but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative” is not acceptable and must be crossed out. See example below. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policy. Docusign Envelope ID: F41294DC-B200-42FC-A2E1-16CA33328EC1 55575.18110\42498439.2 All certificates and endorsements are to be received and approved by the City before this Agreement is approved. Cancellation Example: SHOULD ANY OF THE ABOVE REFERENCED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS* WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED HEREIN BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. *The broker/agent can include a qualifier stating “10 days’ notice for nonpayment of premium.” 7.4 Deductibles and Self-Insured Retentions. Any deductibles or self- insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its elected officials, officers, employees, agents, and volunteers; or, OLPNO shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. 7.5 Severability of Interests (Separation of Insured). This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer’s liability. 7.6 Insurance Increase. Not more frequently than one (1) time every three (3) years, if, in the opinion of the City, the amount of public liability and property damage insurance coverage at that time is not adequate, the City may require modifications to the required insurance coverage in this Section 7. City shall notify OLPNO, and OLPNO hereby agrees to provide City with certificates and endorsements evidencing City’s required increased insurance coverage amounts within thirty (30) days’ notice from City. Failure of OLPNO to provide City with certificates and endorsements evidencing City’s required increased insurance coverage amounts within thirty (30) days shall automatically terminate the License herein granted. 8. Notices. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to be given under the provisions of this Agreement shall be in writing and either served personally or sent prepaid, first-class mail to the following address: To City: City of Palm Springs PO Box 2743 Palm Springs, CA 92263-2743 Attn: Public Works and Engineering Department Docusign Envelope ID: F41294DC-B200-42FC-A2E1-16CA33328EC1 55575.18110\42498439.2 With Copy to: City Attorney City of Palm Springs PO Box 2743 Palm Springs, CA 92263-2743 To OLPNO: Old Las Palmas Neighborhood Organization PO Box 2658 Palm Springs, CA 92263-2658 9. Attorneys’ Fees. In any action between the parties hereto seeking enforcement of this Agreement, or in connection with the Agreement or the Permit, the prevailing party in such action shall be entitled to have and to recover from the other party its reasonable attorneys’ fees and other reasonable expenses in connection with such action or proceeding in addition to its recoverable court costs. 10. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties’ successor and assignees. 11. Amendment or Modification. This Agreement may not be modified or amended except by written agreement by all parties. 12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 13. Severability. The invalidity or unenforceability of any provision of this Agreement with respect to a particular party or set of circumstances shall not in any way affect the validity and enforceability of any other provision hereof or the same provision when applied to another party or to a different set of circumstances. 14. Authority. The persons executing this Agreement on behalf of the Parties warrant that they are duly authorized to execute this Agreement on behalf of the Parties and that by so executing this Agreement the Parties are formally bound to the provisions of this Agreement. [Signatures on following page] Docusign Envelope ID: F41294DC-B200-42FC-A2E1-16CA33328EC1 55575.18110\42498439.2 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above. OLPNO Old Las Palmas Neighborhood Organization By _________________________ By _____________________________ ____________________________ _____________________________ President Secretary ATTEST: CITY OF PALM SPRINGS, A California Charter City and Municipal Corporation ___________________________ ___________________________________ Brenda Pree Scott C. Stiles Palm Springs City Clerk Palm Springs City Manager APPROVED AS TO FORM: ___________________________ Jeffrey S. Ballinger Palm Springs City Attorney Docusign Envelope ID: F41294DC-B200-42FC-A2E1-16CA33328EC1 8/20/2024 8/20/2024 8/20/2024 55575.18110\42498439.2 Exhibit “A” Encroachment Area West Chino median between North Palm Canyon and Belardo Road. The median is 441 feet long. Prince to be located approximately 90 feet west of the Palm Canyon edge of the West Chino Median. Blue Belly Crab to be located approximately 190 feet west of the Palm Canyon end of the West Chino median. Docusign Envelope ID: F41294DC-B200-42FC-A2E1-16CA33328EC1 55575.18110\42498439.2 Exhibit “B” Public Artwork Agreement and Release This Public Artwork Agreement and Release (“Release”) is issued in connection with my original work of art described as follows: 1. Description: [type, medium]: Painted metal sculptures 2. Title, Date: Prince and Blue Belly Crab, ______________. 3. Address/Location(s): West Vista Chino median, west of North Palm Canyon Drive and east of Belardo Road, Palm Springs, California in the Old Las Palmas Neighborhood, Palm Springs, CA (“Encroachment Area”), including (without limitation) all images, signage, art, design, methods, labels, logos, special effects, name(s), likenesses and/or any other material and creative elements contained therein (“Artwork”). I, (the “Artist”), understand that my Artwork which has been selected for installation on city-owned property in the City of Palm Springs, that the City has granted an encroachment license (“License”) to Old Las Palmas Neighborhood Organization (“OLPNO”) to install the Artwork on the Encroachment Area”), and that this Release is attached to and incorporated with the Agreement memorializing the License and OLPNO’s donation of the Artwork as Exhibit “B.” Due to the nature of the Artwork and the public interest of the City, Artist and Artist’s agents, heirs, successors and assigns hereby waive any and all rights and claims they may have against the City, and its employees, and its agents, under the Visual Artists Rights Act of 1990, 17 U.S.C. §§ 106A and 113(d) (“VARA”), the California Art Preservation Act, Cal. Civ. Code, §§ 987, 989 (“CAPA”), and any other local, state, foreign or international law, as currently drafted or as may be hereafter amended, that conveys the same or similar rights (“Moral Rights Laws”), with respect to the Artwork, its display, removal from display, exhibition, installation, conservation, storage, study, alteration, and any other activities conducted by the City, its officers, employees, agents, contractors, licensees, successors or assigns. To the extent that Artwork, during removal, may encounter physical defacement, mutilation, alternation, distortion, destruction, or other modification (collectively, “Modification”), Artist waives any and all such claims under any Moral Rights Laws arising out of or against the City or future owners of the site, and its agents, officers and employees, for Modification of the Artwork. The City has the absolute right to change, modify, destroy, remove, relocate, move, replace, transport, repair or restore the Artwork in City’s sole discretion. The City has no obligation to pursue claims against third parties for modifications or damage to the Artwork done without the City’s authorization. However, the City may pursue claims against third parties for modifications or damage or to restore the Artwork if the work has been modified without the City’s authorization. In the event that the City pursues such a claim, it shall notify the Artist, and Artist shall cooperate with the City’s efforts to prosecute such claims. Docusign Envelope ID: F41294DC-B200-42FC-A2E1-16CA33328EC1 55575.18110\42498439.2 If the City modifies the Artwork without the Artist’s consent in a manner that is prejudicial to Artist’s reputation, Artist retains the right to disclaim authorship of the Artwork in accordance with 17 U.S.C. § 106A (a)(2). Artist further understands that, in connection with the display of my Artwork, City requires this Release as a pre-condition. Artist acknowledges and agrees that the City is not obligated to allow Artist’s Artwork on City property, nor obligated to sustain the inclusion of the Artwork beyond any term it determines in its sole discretion pursuant to the this Release and/or the Agreement. Artist hereby grants to City an irrevocable, perpetual, and nonexclusive worldwide license to reproduce, distribute, install, and/or publicly display two-dimensional reproductions of the Artwork, in whole or in part, for non-commercial purposes in connection with this Release, including in any advertisements, prints, brochures, catalogues, online campaigns and social media, and any other marketing and publicity material and campaigns of the City for purposes of promoting the City or the Artwork (collectively, the “Use Rights”). While Artist understands that Artist may not be accorded credit for the Artwork, Artist authorizes City, if it so chooses, to make reasonable and customary use of Artist’s name, likeness, and biographical information, in connection with my Artwork and the foregoing Use Rights. Artist hereby waives all rights and benefits of “droit moral” or “moral rights of authors” or any similar rights or principles of law which Artist may now or later have in and to the Artwork. Artist represents and warrants to the City that: (i) Artist has the right to grant the foregoing rights to use Artist’s Artwork without the necessity of making payments to or obtaining the consent of any third person or entity; (ii) the Artwork shall not defame, infringe upon, misappropriate or violate, any intellectual property or other right of any person or entity; (iii) the Artwork is not the subject of any litigation or claim that might give rise to litigation; and (iv) the Artwork will in no way infringe upon or violate any copyright or intellectual property rights of any party. Artist agrees to indemnify and hold harmless the City, and any person claiming under the City, including the City’s their elected and unelected officials, employees, and agents from and against any liabilities, losses, claims, demands, costs (including without limitation reasonable attorneys’ fees) and expenses arising from or otherwise related to: (i) Artist’s wrongful or negligent acts, errors, and omissions; and (ii) Artist’s breach or alleged breach of the terms hereof, including any representation or warranty contained herein. Any remedies Artist may seek or have against the City in connection with the Artwork and/or the Release shall be limited to the right to recover damages, if any, in an action at law, and Artist hereby waives any right or remedy in equity, including without limitation, the right to seek injunctive relief. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Release. Artist is acting as an independent contractor in connection with the Artwork, and nothing contained herein shall create or be construed as creating a partnership, joint venture, or agency relationship. This Release shall be governed by the laws of the State of California. Any and all actions arising out of the Release shall be litigated in the applicable courts located in Riverside County, California. This Release supersedes any and all other releases, agreements and Docusign Envelope ID: F41294DC-B200-42FC-A2E1-16CA33328EC1 55575.18110\42498439.2 understandings, oral or written, between the parties with respect to the subject-matter herein. The City may assign its rights and obligations hereunder as it each deems appropriate. By affixing my signature below, I acknowledge and agree to the terms and conditions set forth herein: “Artist” Signature: _____________________________ Print Name: ____________________________ Date: _________________________________ Address: _______________________________ _______________________________________ Phone: (__) ____________ Email: ________________ Docusign Envelope ID: F41294DC-B200-42FC-A2E1-16CA33328EC1