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HomeMy WebLinkAboutLicense Agreement/CRC/Evan Lurie Gallery/Kevin Barrett/ SUNDANCE ArtworkLICENSE AGREEMENT This License Agreement (the "Agreement "), executed this day of June, 2012, by and between The City of Carmel Redevelopment Commission ( "CRC "), and Evan Lurie Gallery, Inc. and Kevin Barrett (collectively, the "Licensee "), WITNESSES: Recitals WHEREAS, Licensee is: (a) the operator of that certain art gallery located at 30 W. Main Street, Carmel, Indiana (the "Gallery "); and /or (b) the owner and /or creator of that certain artwork titled "Sundance ", which artwork is depicted and /or described on Exhibit A, attached hereto and incorporated herein (the "Artwork "); W HEREAS, CRC has constructed a public art stage in the Carmel Arts & Design District (the "Arts District "), which area is more particularly depicted and /or described on Exhibit B, attached hereto and incorporated herein (the "Public Art Stage "); WHEREAS, Licensee seeks to display the Artwork on the Public Art Stage; and WHEREAS, CRC and Licensee desire to enter into this Agreement; Agreement NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged hereby, CRC and Licensee agree as follows: 1. Grant. Subject to the terms and conditions of this Agreement, CRC hereby grants to Licensee a license (the "License ") to use the Public Art Stage for the public display of the Artwork. 2. Term. The term of the License (the "Term ") shall: (a) commence on the date hereof; and (b) end on the date that is 12 months thereafter. Notwithstanding anything stated to the contrary herein, if: (a) the Gallery ceases operations on or in the Arts District; or (b) Licensee delivers to CRC written notice that the Artwork has been sold; then, in either case, this Agreement and the License immediately shall terminate. 3. Use. CRC has granted the License for the sole purpose of allowing Licensee to display publicly the Artwork (the "Permitted Use "). At all times, Licensee shall use and operate the Public Art Stage: (a) only for the Permitted Use; (b) in a careful and safe manner; and (c) in compliance with all applicable laws, statutes, and /or ordinances, governmental rules, regulations, guidelines, orders, and /or decrees (the "Laws "). Licensee shall not: (a) except to the extent necessary to: (i) protect the Artwork or its structural integrity; or (ii) perform Licensee's obligations pursuant to Subsection 4(b); change, modify, replace, or otherwise alter (whether with another artwork or otherwise); (b) except for a small sign indicating the artist's name, the Gallery, and that the Artwork is for sale or loan by Licensee, which sign reasonably is approved in advance by CRC, place any advertising, insignia, trade dress, or other mark on; or (c) replace, modify, or remove any advertising, insignia, trade dress, or other mark from; the Artwork or the Public Art Stage, or any portion of the Artwork or the Public Art Stage, without the prior written consent of CRC, which consent may be withheld in CRC's sole discretion. 4. Maintenance. (a) CRC. Except as expressly set forth in Subsection 4(b), CRC, at its cost, shall: (i) maintain the Public Art Stage and the Artwork in a clean and sightly condition; (ii) repair, in a good and workmanlike manner, any: (A) damage to the Public Art Stage or the Artwork caused by normal wear and tear; and (B) damage to the Public Art Stage or the Artwork above and beyond that constituting normal wear and tear (the "Extraordinary Damage ") caused by: (1) CRC; (2) any person or entity working by, through, or on behalf of, CRC; or (3) any member of the general public (other than Licensee or any person or entity working by, through, or on behalf of, Licensee); (iii) replace, as necessary, all or any component of the Public Art Stage and /or the Artwork caused by: (A) normal wear and tear; or (B) Extraordinary Damage caused by: (1) CRC or any person or entity working by, through, or on behalf of, CRC; or (2) or any member of the general public (other than Licensee or any person or entity working by, through, or on behalf of, Licensee); and (iv) remove from the Public Art Stage, package, and transport the Artwork to Licensee at a location identified by Licensee. (b) Licensee. Licensee: (i) at CRC's cost, shall package, transport to the Public Art Stage, install, and display; and (ii) at Licensee's cost, shall: (A) repair, in a good and workmanlike manner, any Extraordinary Damage to the Public Art Stage and the Artwork caused by Licensee or any person or entity working by, through, or on behalf of, Licensee; and (B) replace, as necessary, all or any component of the Public Art Stage and /or the Artwork caused by Extraordinary Damage caused by Licensee or any person or entity working by, through, or on behalf of, Licensee. 5. Insurance. CRC, at its cost, shall keep in full force and effect throughout the Term a casualty policy of insurance with respect to the Artwork, including, without limitation, casualty resulting from Extraordinary Damage, which policy shall name Licensee as an additional insured. CRC shall provide to Licensee copies of all such policy of insurance upon request. 6. Reimbursement. Notwithstanding anything stated to the contrary herein, if Licensee sells the Artwork: (a) during the Term; or (b) after the Term, if Licensee's negotiations with the purchaser began during the Term; then Licensee, within 30 days after such sale, shall reimburse CRC for all costs and expenses incurred by CRC in performing its obligations pursuant to Sections 4 and 5 (other than any costs and expenses incurred as a result of Extraordinary Damage caused by CRC or any person or entity acting by, through, or on behalf of, CRC). The terms and conditions of this Section shall survive the termination of this Agreement. 7. Default. If Licensee fails to perform or adhere to any of its obligations or covenants under this Agreement and such failure continues for five days after written notice from CRC, then CRC may exercise any remedy available to it at law or in equity, including, without limitation, curing the breach for the account of Licensee, obtaining injunctive relief or the remedy of specific performance, or terminating the License and this Agreement. 8. Assignment. Licensee shall not: (a) assign or transfer this Agreement in whole or in part; or (b) grant a sublicense or concession in connection with this Agreement; in either case without the prior written consent of CRC. This prohibition shall include any act that: (a) has the effect of an assignment or transfer; and (b) occurs by operation of law. 9. Surrender. Upon the termination of this Agreement for any reason, Licensee promptly shall, subject to the terms and conditions of Section 4: (a) remove the Artwork from the Public Art Stage; and (b) surrender the Public Art Stage to CRC, in the same order and condition as on the date hereof, ordinary wear and tear excepted. 10. Indemnity. Licensee shall indemnify and hold harmless CRC and its officers, officials, employees, agents, assigns, attorneys, and legal representatives from and against any and all claims, damages, losses, and expenses (including, without limitation, attorneys' fees) arising from or connected with: (a) the possession and /or use by Licensee of the Artwork or the Public Art Stage; or (b) the breach by Licensee of any term or condition of this Agreement. The terms and conditions of this !Section shall survive the termination of this Agreement. 11. Depictions. Licensee hereby grants to CRC a license to photograph, video record, or otherwise depict, in, on, or through any medium (whether print, digital, or other media format), the Artwork, for use by Z: \Documents \W ilmering, Ryan \CRC \General \Form Contracts \Public Art License Agreement (Gallery & Artist) (Kevin Barrett).wpd -2- P.1 CRC in CRC's advertising or marketing of CRC, the Arts District, or CRC - sponsored or CRC - related events_ Such license shall survive the termination of this Agreement 12. Notice. Any notice given pursuant to Ibis Agreement shall be in writing, and shall be deemed to have been given when: (a) delivered in person to the other party; (b) sent by facsimile, with electronic confirmation of receipt or (c) sent by national overnight delivery service, with confirmation of receipt addressed to CRC at 30 West Main Street, Suite 220, Carmel, Indiana 46032. Facsimile: 317 -84-4 - 3498. Attn: Les Olds; and addressed to Licensee at Facsimile: Attn: Evan Lurie. 13. Authority. Each of the undersigned persons executing this Agreement on behalf of CRC and Licensee represent and certify that (a) he or she is empowered and authorized by all necessary action of CRC or Licensee, respectively, to execute and deliver this Agreement; (b) he or she has full capacity, power, and authority to enter into and carry out this Agreement and (c) the execution, delivery, and performance of this Agreement has been authorized by CRC or Licensee, respectively. 14. fW iscellaneous. This Agreement constitutes the entire agreement between CRC and Licensee with respect to the subjectmatter hereof, and may be modified only by a writing signed by both CRC and Licensee. The invalidity, illegality, or unenforceability of any one or more of the terms and conditions of this Agreement shall not affect the validity, legality, or enforceability of the remaining terms and conditions hereof. This Agreement shall be govemed by, and construed in accordance with, the laws of the State of Indiana. The section headings shall not be considered in any way to affect the interpretation of this Agreement. This Agreement shall not be construed to create a contractual relationship with, give rights or benefits to, or create a cause of action in favor of, anyone other than the parties hereto. IN WITNESS W HEREOF, the parties have executed this Agreement as of the date set forth above. Z.:11) mum antslW iimenng. RyanlCRClGeneratIForm ContracblPublic An License Aarenmen, (Gallery* Arlist) (Kevin earretl).wpd -3- CRC: THE CITY OF CARMEL REnEVELOPMENT COMMISSION // 8y: \ ; Alai LI/ii4 William Mamma - ident LICENSEE: EXHIBIT A Depiction and /or Description of the Artwork pi EXHIBIT A Depiction andfor Description of the Artwork -Sundance" 2011 Welded and Painted Aluminum (138 x 48 x 45") EXHIBIT B Depiction and/or Description of the Public Art Stage