HomeMy WebLinkAbout18- License Agreement - Gallatin Art Crossing Inc. - Installation of Art on City Owned Property, Parkland, and Public Rights of Way LICENSE AGREEMENT FOR INSTALLATION OF ART ON
CITY OWNED PROPERTY,PARKLAND,AND PUBLIC RIGHTS OF WAY
IN THE CITY OF BOZEMAN
This License Agreement ("Agreement") is made and entered into on 13 201�
between the City of Bozeman, a self governing municipal corporation organized and existing under its
Charter and the laws of the State of Montana, 121 North Rouse Street,Bozeman,Montana,with a
mailing address of PO Box 1230,Bozeman,MT 59771 ("City")and Gallatin Art Crossing Inc., a
501(c)(3) non-profit organization created under the laws of the State of Montana("Licensee").
Now therefore, in consideration of Licensee's promises herein, and other good and valuable
considerations,the receipt and sufficiency of which is hereby acknowledged,the City and Licensee
agree as follows:
1. License Area. This Agreement applies to City owned real property,parkland,rights of way, and
other public spaces controlled by the City of Bozeman within the City of Bozeman("License
A „�
rr� ;.
2. License Fee. This license is granted to Licensee for an annual fee of one and 00/100 dollars
($1.00),payable in advance on or before July Pt of each year during the tern of this Agreement.
3. Term. This Agreement shall be in effect upon execution by both parties and shall run from the
date listed above until December 31, 2018 unless revoked or tenninated as provided herein.
4. Scope of License. This Agreement is made pursuant to and is subject to Administrative Order
2017-01, attached as Exhibit A and incorporated by this reference. This Agreement grants a non-
exclusive license to Licensee for the Licensee's use of certain locations within the License Area
for the placement of artwork owned by Licensee or other private owners, and for the
installation of improvements and fixtures necessary to display such artwork. Licensee
shall provide all pedestals,bases,pads, platforms and other items necessary for such use
and on the conditions which the City's Representative and the Licensee agree in advance.
Licensee is responsible for maintaining artwork and all pedestals,bases, pads, platforms, and
other improvements associated with the artwork installations in a manner free of obvious and
inherent hazards and risks of injury to person or property. The Licensee shall be responsible for
any costs associated with installing, repairing, replacing and/or removing any or all pedestals,
bases, pads,platforms and artwork. All improvements and permanent fixtures, excluding
artwork, installed by the Licensee shall remain property of the City upon termination of this
License for Artwork Installations
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Agreement, at which time the Licensee must restore the sidewalk or other approved location to
its original condition as directed by the City's Representative.
The terms and conditions of this License apply to all of the existing artwork installations
listed on Exhibit B to this License and to any and all artwork installations by Licensee after
the Effective Date of this License.
5. License acts as encroachment permit; approval of new artwork installation.
Applications for new artwork installations must be submitted to the City's Representative
using the form attached as Exhibit C or a substantially similar form.
a. Public rights of way: This Agreement and the license it grants acts as an
encroachment permit for artwork installations in the public right-of way. Applications
for artwork installation in public rights of way must first be approved by the Director
of Public Works or his designee. For artwork installations on sidewalks within the
Downtown Business District as defined in Section 34, Article 5 of the Bozeman
Municipal Code,Licensee must provide with the application a letter of support from the
owner or authorized representative of the business adjacent to the sidewalk where the
installation is requested or an explanation summarizing the lack of support. The Director
of Public Works may deny, approve, or approve with additional conditions or
restrictions any such installation as the Director deems appropriate.
b. Public parks, oven space,recreational facilities: For artwork installation in dedicated
public parks, city owned open space or other recreational facilities or city controlled
parkland or trail systems the artwork installation must first be approved by the
Director of Parks and Recreation or his designee, who may deny, approve, or approve
with additional conditions or restrictions any such installation as the Director deems
appropriate.
c. Other locations within the Licensed Area: For all other locations,the artwork
installation must first be approved by the City Manager or his designee, who may
deny, approve, or approve with additional conditions or restrictions any such
installation as the City Manager deems appropriate.
6. Removal of Artwork. The City's Representative may order Licensee to remove any artwork if
the location where the artwork is installed is needed for any public purpose or if the City
determines the artwork poses a hazard to public health and safety. In such a case,Licensee must
remove the artwork within seven(7)days or within the time required by the City's
Rep r_ _ any the
City property or right of way must be repaired to the satisfaction of the City's Representative.
Licensee will contact the City's Representative within seven(7)days of removal of the artwork
for a determination by the City's Representative of the repair work necessary to return the City
License for Artwork Installations
P agc 2
property or right of way to its original condition. The City property or right of way must be
repaired within the timefiame specified by the City's Representative.
7. Replacement of Artwork. Should Licensee desire to replace an existing approved artwork,
Licensee must submit a new application to the City's Representative on the form attached as
Exhibit C or substantially similar form.
8. Indemnification and Liability Insurance.
a. To the fullest extent permitted by law,Licensee,recognizing it exercises its privileges
under this License at its own risk, shall release,and shall protect, defend,indemnify,and
hold harness the Crt„ and their agents,representah'ves, employees, and officers from
and against any and all claims, demands, actions, fees and costs(including attorney's fees
and the costs and fees of expert witness and consultants),losses, expenses,liabilities
(including liability where activity is inherently or intrinsically dangerous) or damages of
whatever kind or nature connected therewith and without limit and without regard to the
cause or causes thereof or the negligence of any party or parties that may be asserted
against,recovered from or suffered by the City, occasioned by, growing or arising out of
or resulting from or in any way related to: (i)the negligent,reckless, or intentional
misconduct of the Licensee, its officers,employees,or agents; (ii)any negligent,
reckless, or intentional misconduct of any of the artists or owners of artwork installed in
the License Area; and(iii)the negligent,reckless, or intentional misconduct of any other
third party with respect to the artwork installed in the License Area.
Such obligation shall not be construed to negate, abridge, or reduce other rights or
obligations of indemnity that would otherwise exist as to an indemnitee described in this
Section. The indemnification obligations of this Section must not be construed to negate,
abridge, or reduce any corruilon-law or statutory rights of rile indenmitee(s) winch would
otherwise exist as to such indemnitee(s).
Licensee's indemnity under this Section 9 shall be without regard to and without any
right to contribution from any insurance maintained by the City.
Should any indernrutee described herein be required to bring an action against the
Licensee to assert its right to defense or indemnification under this Agreement or under
the Licensee's applicable insurance policies required below the indemnitee shall be
entitled to recover reasonable costs and attorney fees incurred in asserting its right to
indemnification or defense but only if a court of competent jurisdiction determines the
Licensee was obligated to defend the claim(s)or was obligated to indemnify the
indemnitee for a claim(s)or any portion(s)thereof.
License for Artwork Installations
Page
In the event of an action filed against the City resulting from the City's performance
under this Agreement,the City may elect to represent itself and incur all costs and
expenses of suit.
These obligations shall survive termination of this Agreement.
b. In addition to and independent from the above, during the life of this Agreement Licensee
shall at Licensee's expense maintain those insurances as may be required by the City as
set forth below through an insurance company or companies duly licensed and authorized
to conduct business in Montana which insures the liabilities and obligations specifically
assumed by the Licensee in subsection(a)of this Section. The insurance coverage shall
not contain any exclusion for liabilities specifically assumed by the Licensee in
subsection(a) of this Section.
Within ten(10)days following execution of this Agreement, Licensee shall provide the
City with proof of such insurance in the form of a certificate of insurance,the insuring
agreement and all applicable endorsements demonstrating that such insurance is in full
force and eiiect and steal -provide such proof when requested-by the City thereafter
during the term of this Agreement.
Licensee shall notify the City thirty(30)days prior to the expiration of any such required
insurance coverage and shall ensure such required insurance coverage is timely renewed,
or..,`r«nded or r £active coverage purC based, so that there is no lapse in coverage
during the time such insurance must remain in place. Licensee shall notify the City
within two(2)business days of Licensee's receipt of notice that any required insurance
coverage will be terminated or Licensee's decision to terminate any required insurance
coverage for any reason.
The insurance and required endorsements must be in a form suitable to the City.
c. Licensee shall obtain the following type of insurance in the amount indicated:
• Workers' Compensation—not less than statutory limits; and
• Commercial General Liability- $1,000,000 per claim; $2,000,000 per occurrence.
For liabilities assumed hereunder,the City,their officers, agents,and employees, shall be
endorsed as an additional or named insured on a primary non-contributory basis on the
Commercial General Liability policy.
9. Property Damage Coverage for Installed Artwork; Indemnification and Liability Coverage.
Licensee shall require and ensure that each artist or owner of artwork to be installed in the
License Area,prior to installation,(i)provide their own property damage insurance for each
License for Artwork Installations
Page 4
piece of art at the artist or owner's own expense;(ii)enter into an agreement with Licensee
wherein the artist or owner agree to indemnify,hold harmless,and defend the City and their
officers,employees and agents in a manner and form required by the City;and(iii)provide
evidence the artist or owner holds commercial general liability insurance in a manner and form
approved by the City and which names the City of Bozeman,and their officers,employees,
and agents as additional insureds on a primary non-contributory basis in an amount and scope
acceptable to the City.
10. City not Consignee,Exhibitor or Art Dealer; Licensee not Agent. The Licensee recognizes
the City in granting the permission to use the License Area as described in this Agreement or in
any other manner whatsoever is not acting as an exhibitor,consignee, or art dealer and
notwithstanding the requirements of Section 9, above,Licensee shall indemnify,defend,and hold
the City harmless from any claim of whatever nature regarding the City acting as a consignee,
exhibitor,or art dealer. The Licensee shall inform each artist in writing the City is not acting in
such capacity. The Licensee recognizes it,its officers, employees or agents and the artists or
owners of artwork placed in the License Area are in no way authorized to nor may they act as
is t of the City and shall? fors the artists �tr � artworks �f such
ab�e�...of the 2.3 .^._ .�!c''. n3J"L' . ::3it...s Lr L;wn�r.3 t7� 33�•..t,.C'W'J3^Su L such.
11. Revocation of Agreement for City's Convenience.
a. The City may terminate this Agreement thereby revoking the license for use of the
License Area by written notice to Licensee("Notice of Termination for City's
Convenience"). The termination shall be effective in the manner specified in the Notice
of Termination for City's Convenience and shall be without prejudice to any claims the
City may otherwise have against Licensee.
b. Upon receipt of the Notice of Termination for City's Convenience,unless otherwise
directed in the Notice,the Licensee shall,within sixty(60)days,make every reasonable
effort to remove all artwork and non-permanent fixtures and if so directed by the City's
Representative shall remove all permanent fixtures and shall restore the site to its original
condition.
12. Termination by Licensee. Licensee may tenninate this Agreement with(30)days written notice
to the City. Upon such termination,the Licensee shall cause all artwork to be removed at its
expense, shall comply with all reasonable directives of the City's Representative regarding
removal of fixtures and improvements and the restoration of the artwork site.
13. Representatives.
a. City's Representative. The City's Representative for the purpose of this Agreement
shall be Alicia Kennedy, or her successor or designee. Whenever approval or
authorization from or communication or submission to City is required by this
License for Arhvork Installafiors
Page 5
Agreement, such communication or submission shall be directed to the City's
Representative and approvals or authorizations shall be issued only by such
Representative;provided,however,that in exigent circumstances when City's
Representative is not available, City may direct its communication or submission to other
City personnel or agents and may receive approvals or authorization from such persons.
b. Licensee's Representative. The Licensee's Representative for the purpose of this
Agreement shall be Tate Chamberlin, or his successor or designee. Whenever direction to
or communication with Licensee is required by this Agreement, such direction or
communication shall be directed to Licensee's Representative;provided,however,that in
exigent circumstances when Licensee's Representative is not available, City may direct
its direction or communication to other designated Licensee personnel or agents and may
receive approvals or authorization from such persons.
14. Nondiscrimination. Licensee shall have a policy to provide equal employment opportunity in
accordance with all applicable state and federal anti-discrimination laws,regulations, and
contracts. Hiring must be on the basis of merit and qualifications, and Licensee shall not
refuse employment to a person,bar a person from employment, or discriminate against a person
in compensation or in a term, condition, or privilege of employment,in performance of its acts
and obligations under this Agreement, or in selection of artwork for installation because of race,
color,religion,creed,political ideas, sex,age,marital status,national origin, actual or perceived
sexual orientation, gender identity,physical or mental disability. Licensee shall require these
s_,___
n�l`.us't;ttliauiatiuit tei13I5 of its contractors and artists fn3tailing atisloik pursuant to this
Agreement.
15. Dispute Resolution. Any claim,controversy, or dispute between the parties,their agents,
employees, or representatives shall be resolved first by negotiation between senior-level
personnel fiom each party duly authorized to execute settlement agreements. Upon mutual
agreement of the parties,the parties may invite an independent, disinterested mediator to assist in
the negotiated settlement discussions. If the parties are unable to resolve the dispute within thirty
(30)days from the date the dispute was first raised,then such dispute shall be resolved in a court
of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement.
16. Compliance with Law. The parties shall comply with all applicable state and federal laws,
regulations,and municipal ordinances in the performance of this Agreement,including any
encroachment pen-nit requirements imposed by the Montana Department of Transportation
(MDT). Licensee understands and agrees that MDT may at any time revoke the City's authority
to license artwork installations in MDT controlled rights of way.
17. Survival. Licensee's indemnification obligations shall survive the termination or expiration of
this Agreement for the maximum period allowed under applicable law.
License for Arhvork Installations
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18. Headings. The headings used in this Agreement are for convenience only and are not be
construed as a part of the Agreement or as a limitation on the scope of the particular sections to
which they refer.
19. Waiver. A waiver by City of any default or breach by Licensee of any covenants,terms, or
conditions of this Agreement does not limit the City's right to enforce such covenants,terms, or
conditions or to pursue the City's rights in the event of any subsequent default or breach.
20. Severability. If any portion of this Agreement is held to be void or unenforceable,the balance
thereof shall continue in effect.
21. Applicable Law. The parties agree that this Agreement is governed in all respects by the laws of
the State of Montana.
22. Binding Effect. This Agreement is binding upon and inures to the benefit of the heirs,legal
representatives, successors, and assigns of the parties.
23. Amendments. This Agreement may not be modified, amended, or changed in any respect except
by a written document signed by all parties.
24. No Third-Party Beneficiary. This Agreement is for the exclusive benefit of the parties, does not
constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third
parry.
25. Counterparts. This Agreement may be executed in counterparts,which together constitute one
instrument.
26. Assignment. Licensee may not assign this Agreement in whole or in part and may not sublet all
or any portion of tiie Site without the prior written consent of the City. No'assignment will
relieve Licensee of its responsibility for the performance of the Agreement(including its duty to
defend,indemnify and hold harmless). This license shall not run with the land.
27. Authority. Each party represents that it has full power and authority to enter into and perform
4 r».1 bt. FL. h been
this A�reement�,:�:ear?�er�.,4f�r.�.�,c=_er3 A�re. ent o?behalf E'if c..=�h �"a_�S uc�a_properly
b b party.� I' t�r'�
authorized and empowered to sign this Agreement.
28. Independent Contractor. The parties agree and acknowledge that in the performance of this
Agreement, Licensee shall perform its duties and obligations as an independent contractor and
not as the agent,representative, subcontractor, or employee of the City. The parties further agree
that all individuals and companies retained by Licensee,including artists whose artwork are
placed at.the Site, shall at all times be considered either an agents, employee, or independent
License for Artwork Installations
Page 7
I
contractors of Licensee and at no time will they be the employees;agents, or representatives of
dw city.
29. Integration. This Agreement and Exhibits A-C hereto shall constitute the entire agreement of
the parties. Covenants or representations not contained therein or made a part thereof by
reference, are not binding upon the parties. There are no understandings between the parties
other than as set forth in this Agreement. All communications,either verbal or written,made
prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made
a part of this Agreement by reference.
IN WITNESS WHEREOF, City and Licensee have caused this Agreement to be executed,
effective on the date written above,and intend to be legally bound thereby.
CITY OF BOZEMAN GALLATIN ART CROSSING INC.
Andrea.Surrat,Ci~'y Chuck Peek,President
APPROVED AS TO FORM:
By
Gr ullivan,Bozeman City Attorney
License for Artwork Installations
Pageg
-LWBIT A
ADMINISTRATIVE ORDER 2017-06
Adoption of Public Art Program
License for Artwork Installations
g
# t�►CO. 0
ADMINISTRATIVE ORDER 2017—06
Adoption of Public Art Program
for the review and approval of artwork installations on public property
within the City of Bozeman and administration of the program
The following administrative procedures are hereby adopted:
1. Purpose. The purpose of the Public Art Program ("Program") is to create an efficient
process for the receipt, processing, and administration of requests to install artwork in
public spaces within the City of Bozeman that promotes public art while also protecting
the public health and safety and minimizing the City's risk of liability.
2. Applicability. These procedures apply to all requests to install artwork in public spaces
within the City of Bozeman, including public rights of way,parks, city owned open space
and trails, and other city owned or city controlled property.
3. Responsibility. The City Manager or designee("City Representative")will administer the
Program.
4. Procedures:
a. License. Each artwork installation requires a license agreement in a form approved
by the City Attorney. If the installation is within a public right of way, this
requirement may be met with an encroachment permit issued by the Department of
Public Works rather than a license agreement.
b. Application. Applications for artwork installations must be submitted to the City
Representative on a form approved by the City Attorney, in substantially the form
shown in Exhibit A.
c. Approval. Applications will first be reviewed by the City Representative to
determine the location of the proposed installation.
1
i. For locations within the public right of way, the application will be
forwarded to the Director of Public Works for approval.
ii. For locations within public parks, city owned open space or other
recreational facilities, city controlled parkland or trail systems, the
application will be forwarded to the Director of Parks and Recreation for
approval.
iii. For any other public location within City, the City Manager will be
responsible for approval.
d. Issuance of license or permit. If approval is received,the City Representative will
work with the City Attorney's office (or, if applicable, the Department of Public
Works) to prepare a license agreement or issue an encroachment permit.
-r�
DATED this 5 ) day of
Andrea Surratt, City Mar ger
2
Exhibit B
Licensed Artwork Installations
Artwork Name Location
Thing#1 Creekside Park
Ascending Squares Creekside Park
Gallatin River Totem Wild Joe's
Steel Flight Alfred Stiff Building, Olive &Black
Icosahedrono us City Hall (West), 121 N. Rouse
Day Dreamer City Hall East
Vualo de Aves City Hall east @brid e
Comet CTA Architects, 411 E. Main
Three Ancient Poems CTA Architects, 411 E. Main
Against the Current 777 East Main
The Professor 777 East Main
Between Earth &Sky Soroptimist Park
Fish Face Soroptimist Park
Phosphorus Bronze Pillar Soroptimist Park
Gallatin Art Crossing kiosk Soroptimist Park
Eagle Legion Bar
Bench 224 E. Main
Turning Stone Shoefly Shoes, 131 E. Main
Leaping Brown Trout US Bank, 104 E. Main
Tortoise Visions West Gallery, 34 W. Main
The Ostrich Parking Garage
Ladybug Stark 's, 24 N. Tracy
Guardian First Security Bank, 208 E. Main
CITY OF BOZEMAN
APPLICATION FOR ARTWORK INSTALLATION
CHECK ONE: ( ) new artwork installation
( ) replacement of licensed artwork installation
1. APPLICANT(S):
Telephone:
email:
2. LOCATION OF PROPOSED INSTALLATION:
❑ Attach photo(s) or sketch(es) depicting the artwork and showing:
• overall dimensions of the artwork
• method of installation(i.e.pedestal,mounting hardware,etc.)
• for proposed installations in public right of way, any existing obstructions or improvements
near the proposed installation(i.e.trash cans, light fixtures,bike racks,trees,etc.)which
could limit the free movement of pedestrians or other members of the public
If proposed installation is within the Downtown Business District as defined in Section 34,
Article 5 of the Bozeman Municipal Code, complete#3 and attach the requested documentation:
3. Name and address of business adjacent to proposed installation:
❑ Attach a letter of support from the owner or authorized representative of the adjacent
business or an explanation summarizing the lack of support.
Submit application to: City Manager's Office, 121 N. Rouse Ave.,Bozeman MT 59771
akennedy(&,,bozeman.net
-- -- -- -- - -- -- - - -- - - -- - -- - - - - - - --- - - - ---- -- -- - - - -- - - -- - - - --- - - - - - - -
(to be completed by City Representative): Date received:
Approved by:
Approved date:
For locations in rights of tray,application must be approved by the Director of Public ff orks.
For locations in parks, open space,recreational facilities and similar public spaces, application nn{st be approved by
the Director of Parks and Recreation.
For all other locations,application must be approved by the City Manager.
License for Artwork Installations
Exhibit C