90-004 Katia Lacoste Gallery; Right of Entry to Publicly Displayed Artwork r
AGREEMENT FOR THE RIGHT OF ENTRY TO
PUBLICLY DISPLAYED ARTWORK
This Agreement is made and entered into on this 22day orf JANUARY
1990 , by and between the City of Cupertino, California, a municipal corporation
(hereinafter"Cupertino") and KATIA LACOSTE GALLERY
(hereinafter"Exhibitor" whose address is 227 NORTH F I RST STREET, SAN JOSE,
CA 95113
RECITALS
A. Cupertino wishes to enhance the aesthetics of the City of Cupertino by
providing artworks to be displayed publicly for enjoyment by the citizens,residents, and
visitors of Cupertino.
B. Cupertino is the owner of the certain real property described hereinbelow within
the City of Cupertino (the "Display Site").
C. Exhibitor wishes to loan to Cupertino,for public display, the artwork entitled
HOLES AND SHADOWS
(hereinafter "The ArtWork"),to be exhibited at the Display Site.
NOW, THEREFORE, in consideration of the foregoing promises and mutual covenants
hereinafter set forth and other valuable consideration, the parties agree as follows:
1. Display Site; Cupertino grants to Exhibitor permission to enter upon that
portion of city property outlined in red on Exhibit A, attached hereto, for the purpose of
displaying the Artwork. This area as described in the attached Exhibit A shall hereinafter
be referred to as the Display Site.
2. Term of Loan of Artwork: The public display of the Artwork shall
commence on or after 23 JANUARY , 19 90 , and shall terminate on
30 MARCH , 1990 ,
No extensions of this time shall be given without a written agreement between the parties to
that effect. Cupertino may, at its sole option,require the removal of the Artwork at a date
prior to the termination date as set forth herein. In the event that Cupertino does require an
earlier removal of the Artwork, Cupertino shall give at least 30 days notice thereof.
3. Maintenance of Artwork: The Artwork shall be maintained by Exhibitor
at all times in a safe,neat, and good physical condition. Cupertino shall be the sole judge
of the quality of maintenance. If Cupertino is not satisfied with the maintenance by
Exhibitor,Exhibitor,upon receipt of written notice submitted by Cupertino through its City
Manager which states in general terms the manner of required maintenance, shall promptly
perform the required maintenance.
4. Removal of Artwork: Upon the expiration or sooner termination of this
Agreement, Exhibitor, at its sole cost and expense, agrees to immediately remove the
Artwork from the Display Site and restore the Display Site to its original condition. If
Exhibitor fails to exercise its duties under this section, Cupertino shall have the right to
remove the Artwork, store it, and restore the Display Site at no cost or liability to
Cupertino. Exhibitor covenants and agrees to reimburse Cupertino for any removal,
storage, and/or restoration costs and expenses incurred by Cupertino.
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5. Costs of Installation and Maintenance:
a. All costs incurred with respect to the transportation of the Artwork both to
and from the Display Site shall be borne by Exhibitor.
b. All costs incurred with respect to the installation of the Artwork and Display
Site preparation shall be borne by Exhibitor.
c. All costs of maintaining the Artwork during the time of display shall be
borne by Exhibitor.
d. All landscaping maintenance services associated with outdoor displays shall
be provided by Cupertino at no cost to Exhibitor.
e. All signs placed at or near the display shall be provided by Cupertino at no
cost to Exhibitor.
6. Insurance and Liability: In no event shall Cupertino be liable for any
injury,damage including defacement,loss, theft or disappearance whatsoever of or to the
displayed Artwork. Exhibitor shall obtain and maintain insurance sufficient to cover any
loss,damage or injury to the Artwork or any person or persons for the duration of the
display.
Exhibitor agrees to indemnify, defend and hold Cupertino, its officers, agents,
servants and employees harmless against any claims or suits for loss or damage to personal
property and damage or injury, including death, to any person or persons, arising out of or
in connection with the existence,maintenance,use,or location of the Artwork at the
Display Site,whether or not caused,in whole or in part, by the alleged negligence of
officers, agents, servants, employees, contractors, subcontractors, licensees or invitees of
Exhibitor or Cupertino. Exhibitor agrees to assume all liability and responsibility of
Cupertino, its officers, agents, servants, and employees for those suits or claims.
Exhibitor agrees to indemnify Cupertino for any injury or damage to the Display Site,
whether arising out of or in connection with any acts or omissions of Exhibitors or their
officers, agents,employees, contractors, subcontractors, licensees, or invitees or caused in
whole or in part by the alleged negligence of Cupertino's officers, agents, servants,
employees, contractors, subcontractors,licensees, or invitees.
7. No Agreementto Purchase or Lea e: By accepting this loan of the
Artwork the parties recognize that no agreement to lease or purchase the Artwork is
intended. Any subsequent lease or purchase of the Artwork shall be set forth in a separate
agreement and shall be subject to the Fine Arts Commission's policies for the purchase of
public art.
8. Non-Assignability: No rights created in Exhibitor and for the benefit of
Exhibitor under this Agreement shall be assignable and any attempted assignment of this
Agreement shall terminate the rights granted to Exhibitor under this Agreement,except that
nothing contained herein shall be construed as a limitation on any rights under any
copyright laws to which the Artwork may be subject.
9. City's Right of Entry: Cupertino and its agents and employees, at all
times during the installation and display of the Artwork, shall have the right of entry and
free access to the Display Site and the right to inspect all work done,labor performed and
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• materials furnished in and about the Display Site and to inspect all aspects of the installation
of the Artwork.
10. Exercise of City's Rights: Exhibitor represents and warrants that the
rights granted herein may be exercised by Cupertino without violation of any law including
copyright law or laws pertaining to the right of privacy, and without infringing in any way
whatsoever the rights of any person, firm, or corporation.
11. Attorney's Fees: In the event that either party shall hereafter bring any
action upon any default in performance of this Agreement, the prevailing party shall recover
reasonable attorney's fees in addition to any other remedies which may be available.
12. Written Amendment: This Agreement shall constitute the entire Agreement
between Exhibitor and Cupertino with respect to the Artwork and shall not be subject to
amendment,modification, or termination,except in writing signed by the parties hereto.
WITNESS THE EXECUTION HEREOF the day and year first above written.
APPROVED: CITY OF 'ERTINO
a l/ByD.prad :rownU ir
hTes . than
City Attorney City Manager
By
ibi :r
J.Duane Green
Associate Director
Katia Lacoste Gallery
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