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HomeMy WebLinkAboutUnited States Postal Service (USPS) 2016-05-20CO no U' AGREEMENT REGARDING ARTWORK FROM THE POSTAL FINE ARTS COLLECTION BETWEEN THE UNITED STATES POSTAL SERVICE, AND THE CITY OF UKIAH THIS AGREEMENT ("Agreement") is entered into this )(C., day of Ail. _. 2016 (the "Effective Date") by and between the United States Postal Service ("USPS") And the City of Ukiah ("Ukiah"). RECITALS WHEREAS: the U.S. Treasury Department's Section of Fine Arts and Sculpture commissioned Benjamin Cunningham to paint an oil on canvas mural entitled "Resources of the Soil" (the "Mural"), which Mural was installed at the former Ukiah Post Office, located at 224 North Oak Street, Ukiah California 95482, (the "Building") in January 1939 and is part of the Postal Fine Arts Collection owned by the USPS; and WHEREAS: the Mural was intended to be on loan from USPS to Steam Studio under a separate Mural Loan Agreement ("MLA"), to be entered by the USPS and Steam Studio (the "Steam Studio MLA"). However, Steam Studio is marketing the Building and it appears that Steam Studio, based upon a prior verbal agreement, wishes to have the Mural exhibited by Ukiah and NOW, THEREFORE, in consideration of the mutual promises and agreements contained in this Agreement, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. USPS agrees to permit the display of the Mural by Ukiah and to allow the Mural to leave the care and custody of USPS for the purpose of exhibiting the Mural for a period beginning approximately June 27, 2016 and continuing until the earlier of (1) two years following the date hereof and (2) such date as the USPS may determine, in the exercise of its sole, but reasonable discretion, that such Mural should be relocated. Ukiah will display the Mural at the Ukiah Civic Center, 300 Seminary Avenue, Ukiah, California. The Mural is anticipated to be delivered to Ukiah Civic Center and installed on approximately June 6, 2016 at USPS's expense and at no risk or expense to Ukiah. After it is unpacked, had the necessary support framework attached, and is installed on the wall of the Ukiah Civic Center by the USPS contractor, Grace Hudson Museum staff, in conjunction with the USPS contractor, shall inspect and photograph the Mural and submit to USPS in writing a statement of its condition upon delivery and installation by the USPS contractor. This completed incoming condition report will be sent to the USPS Federal Preservation Officer ("FPO") within fourteen (14) days of the Mural's delivery date. Upon the termination or expiration of this Agreement, Grace Hudson Museum staff will de -install, pack and transport to another location within the Ukiah Valley area as designated and approved by the USPS FPO, approval not to be unreasonably withheld or delayed. This transportation will occur within three weeks of the Mural's de -installation, at the expense of Ukiah. Ukiah shall only be responsible for the conditions outlined in this Agreement during the time that the Mural is in the care, custody and control of Ukiah or the Grace Hudson Museum staff. The Mural will at all times remain the sole and exclusive property of the USPS, and this Agreement will be subject to the terms and conditions set forth. Ukiah agrees to provide USPS and any other individuals or representatives authorized by USPS with unlimited access to the Mural during normal business hours for the purposes of inspection, appraisal, high-resolution flash or professional grade reproduction, and inventory; provided the USPS activity does not unreasonably disrupt or interfere with City's and the public use of the Civic Center facilities. 2. Ukiah will furnish and affix on the wall within 24 inches from the mural, signage stating that the Mural is on loan from the USPS, providing the title of the Mural, artist's name, information about the artist's life and career, date of commissioning and context of the commissioning, all to be approved in advance by USPS FPO, approval not to be unreasonably withheld. Ukiah shall credit the USPS on this wall label, in any publicity, or any publication as follows: "Resources of the Soi!' oil on canvas by Benjamin Cunningham. On Loan and Displayed with Permission from the United States Postal Service®. All Rights Reserved." 3. USPS grants Ukiah the right, at its own expense, to take high resolution images of the Mural for non-commercial publicity, educational and archival uses, provided that USPS is credited with ownership of the Mural as outlined above. Ukiah may, at its discretion, allow the visiting public to take impromptu, low resolution photographs of the Mural for personal usage, but shall not allow the visiting public to take high- resolution, flash or professional grade photography of the Mural for any reason whatsoever. Any request to do so must be made directly to the United States Postal Service by any third party and all permission to take high-resolution photos must be given to third parties by USPS in writing. 4. Ukiah shall insure the Mural at Ukiah's expense following its arrival at the Ukiah Civic Center, during the term of this Agreement. USPS shall be named as an additional insured and loss payee under Ukiah's fine arts insurance policy(ies). The Mural shall be insured for its 2015 appraised value of $82,000, under an "all risk", policy(ies) or equivalent coverage through a joint powers agency pooled risk program subject to only the following standard exclusions which also apply to any liability of Ukiah to pay for costs to repair or restore the Mural up to the appraised value: wear and tear, gradual deterioration, or inherent vice; terrorism; nuclear risks; biological, chemical, and cyber -attack; war risks; and government action, including seizure or destruction under quarantine or customs regulations, confiscation by order of any government or public authority, or risks of contraband or illegal transportation or trade. If Ukiah fails to secure and maintain the insurance required by this paragraph 4, Ukiah will, nevertheless, be required to respond financially in case of loss or damage as if said insurance were in effect. Any inaction by USPS regarding evidence of coverage shall not be deemed a waiver. Any reference hereafter to "policy limits" should be interpreted to mean actual policy limits, or if Ukiah fails to purchase or maintain policy, the appraised value of the Mural as stated above. 5. Ukiah will provide normal maintenance and precautions to protect the Mural from damage including, but not limited to, vandalism, fire, theft, mishandling, extreme indoor light levels, direct sunlight, temperature fluctuations (the Mural will not be subject to temperatures exceeding 65 — 85 degrees Fahrenheit), and humidity fluctuations (the Mural shall only be subject to humidity levels within the range of 45- 65 percent), dirt, insects, and vermin and other environmental hazards, while the Mural is in Ukiah's care and custody. The Mural must be handled only by experienced Grace Hudson Museum staff and will be secured from damage and theft by appropriate brackets, railings, or other responsible means as are determined appropriate by Ukiah, as approved by the USPS FPO. These could include a plexi- glass sheet that covers, but is not directly laid against, the surface of the Mural, with openings left around the edges for air circulation. Grace Hudson Museum staff will inspect the Mural every other week and will immediately inform the USPS FPO, by phone, of any significant, detrimental changes in the Mural's condition as noted in these inspections, followed by a written condition report of the changes in the Mural's condition, accompanied by detailed photographs, outlining these changes. Grace Hudson Museum professional staff will complete a detailed outgoing condition report to the USPS FPO at the end of the loan period, after delivery of the Mural to its next specified Ukiah Valley location. These condition reports will summarize the Mural's current condition, any change in condition as noted in the inspections, as well as any treatment recommendations. These reports are solely for USPS's information and in connection with any claims that might arise during the term of this Agreement. If the Mural should be damaged, Ukiah shall be responsible for restoration of the Mural. The Mural will be restored in the manner provided in Section 6 below. 6. If the Mural is damaged or deteriorates while in Ukiah's care and custody, Ukiah shall notify the USPS FPO immediately, and shall have any repair or restoration performed. Such repair or restoration shall be at Ukiah's expense, if deterioration or damage is caused by Ukiah's failure to substantially comply in a material way with its obligations under Section 5. If damage is caused by any other reason, the costs of repair for which Ukiah is liable shall be limited to the proceeds of the insurance provided pursuant to Section 4, or if Ukiah fails to procure and maintain such insurance, then Ukiah's liability will be limited to the amount of insurance that Ukiah was required to procure under this Agreement. In the event of an emergency, Ukiah must take all steps necessary to prevent any additional damage to the Mural. All repair and restoration work shall be performed by a qualified conservator who has been approved in advance by the USPS FPO, such approval not to be unreasonably withheld and all repair work shall be completed promptly and with due diligence. After the completion of any such restoration work to the Mural, Ukiah shall forward the approved conservator's completed restoration report to the FPO. If Ukiah fails to complete the maintenance, repair or restoration work within the time specified in the notice, the USPS shall have the right to perform the work and seek reimbursement from Ukiah, subject to the conditions of and process dictated by the Ukiah's fine arts insurance policy(ies). Ukiah will pay USPS, as applicable the costs of the work performed, within thirty days' of receipt of insurance proceeds covering the cost thereof or if Ukiah failed to procure and continue such insurance in force, then Ukiah shall pay up to the amount of the insurance that Ukiah was required to procure under this Agreement. 7. USPS reserves any and all rights that it may hold to the Mural and any and all images of the Mural (Mural Images), including but not limited to all copyrights and other intellectual property rights, and grants permission to Ukiah to use the Mural Images for any use that does not generate income or promote the generation of income. Such uses do not include uses on Ukiah reports, brochures, newsletters, business cards or other such items. On any use, Ukiah must acknowledge USPS as the owner of all rights to the Mural and Mural Images. 8. Items bearing the Mural Images cannot be resold for any reason without a written license agreement between USPS and Ukiah. Ukiah must obtain a license agreement from USPS and pay royalties to USPS to use a Mural Image on any item for resale, including, but not limited to, Mural images, used in whole or in part, on or in postcards, posters, fine art prints, books, periodicals, greeting cards, stationary, clothing or merchandising items such as mugs and magnets. USPS has a standard license agreement for such purposes. Ukiah must notify the following USPS representative by U.S. Mail®, Certified Mail® and postage prepaid, to apply for a license: Manager, Channel Marketing & Licensing 475 L'Enfant Plaza, SW Room 6912 Washington, DC 20260 With a copy to: Integration and Planning Rights and Permissions United States Postal Service 475 L'Enfant Plaza SW, RM 3300 Washington DC 20260-3300 Email: permissions@usps.gov Fax: 202-268-8861 This notification requirement is in addition to the notifications requirement in Paragraph 14 of this Agreement. 9. Failure to obtain a license agreement from USPS prior to any resale of items bearing a Mural Image constitutes a breach of this Agreement. Upon such breach, a reasonable royalty based on Ukiah's resale of such unauthorized items bearing a Mural Image shall become immediately due and payable. USPS and its duly authorized representatives shall have the right at all reasonable business hours to examine the books and records of Ukiah pertaining to the resale of unauthorized items bearing a Mural Image. 10. The Mural must be exhibited during the term of this Agreement, except for periods required for protection or maintenance of the Mural; provided, however, that if the Mural is taken off exhibit for maintenance or restoration, Ukiah shall immediately notify the USPS FPO in writing via Express Mail® Service. Ukiah agrees to provide public access to the Mural during Ukiah's normal public business hours. In the event a security or safety risk exists at the location where the Mural is installed, Ukiah may temporarily suspend such public access. 11. Ukiah will neither promote nor conduct a media event involving the Mural without prior coordination with and written consent of the USPS. Ukiah must notify the following USPS representative by U.S. Mail®, Certified Mail® and postage prepaid, and by e- mail to initiate coordination: Manager, Pacific Area Corporate Communications 475 L'Enfant Plaza SW Washington, DC 20260-3100 don.a.smeraldi@usps.gov With email copy to the USPS FPO. This notification requirement is in addition to the notifications requirement in Paragraph 14. 12. This Agreement shall be construed in accordance with federal law; and, if there is no relevant federal law, in accordance with the law of the State of California. 13. (a) This Agreement shall terminate at the end of the term set forth in paragraph 1 unless earlier terminated as provided in this paragraph 13 or unless both Ukiah and the USPS determine, in their sole discretion whether to continue this Agreement on such terms and conditions as they may determine. (b) Notwithstanding anything to the contrary provided herein, USPS may immediately terminate this Agreement, in USPS's sole and absolute discretion, if thirty (30) days have passed after USPS has provided written notice to Ukiah that Ukiah has failed to meet any of its obligations hereunder and has failed to initiate and complete corrective action as required under the terms of the Agreement. In the event of such termination, USPS reserves the right to seek all rights and remedies available in law and equity, subject to the conditions of and process dictated by the Ukiah's fine arts insurance policy(ies). (c) Upon termination, Ukiah will be responsible for packing and transporting the Mural by professional Grace Hudson Museum staff to a location within the Ukiah Valley area designated by the USPS' Federal Preservation Officer or their authorized representative. If termination occurs by expiration of the specified term of this Agreement, or any extensions thereof, the costs of such packing and transportation shall be borne by Ukiah. If termination occurs due to Ukiah's breach of any of its obligations under the Agreement, the costs of such packing and transportation shall be borne by Ukiah. In all events, solely from the proceeds of the insurance required by Section 4 of this Agreement or if if Ukiah failed to procure and continue such insurance in force, then Ukiah shall pay the costs of packing and transportation up to the amount of the insurance that Ukiah was required to procure under this Agreement, Ukiah shall reimburse USPS for the cost of any repair or restoration work required, up to the appraised value, upon delivery and installation of the Mural to the designated Ukiah Valley location. 14. All notices must be in writing and are effective only when deposited in the U.S. Mail®, Certified Mail® and postage prepaid, or when sent via overnight delivery as follows: If to USPS: If to Ukiah: Federal Preservation Officer — USPS 475 L'Enfant Plaza SW, Room 6670 Washington, D.C. 20260-1862 City Manager City of Ukiah 300 Seminary Avenue Ukiah, CA 95482 15. This Agreement shall constitute the final, complete, and exclusive written expression of the intentions of the parties hereto with respect to the Temporary Custody Period arrangements. This Agreement shall supersede all previous communications, representations, agreements, promises, or statements either oral or written by or between either parties. This Agreement may be amended only in writing signed by each party. In the event of any conflict between this Agreement and any forms of Ukiah, the terms of this Agreement shall be controlling. 16. Each party declares that it has the authority to enter into this Agreement and that the signatory hereto has been given the requisite authority to sign. This Agreement may be signed in counterparts, each of which shall be deemed to be an original. This Agreement takes effect upon the date that representatives of all parties have signed, which date shall be inserted in the introductory paragraph of this Agreement as the "Effective Date." FOR THE CITY OF UKIAH By: e SatSgi omo ty Mana r, City of Ukiah I .fr Date FOR THE UNITED STATES POSTAL SERVICE, FACILITIES HEADQUARTERS 7 Ju,,v, Zc7 ( 6 Daniel B. Delahaye Date USPS Federal Preservation Officer