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HomeMy WebLinkAboutNational Geographic Society; 2013-03-29;Loan Agreement This agreement, dated 3/29/2013 is between the City of Carlsbad, William D Cannon Art Gallery (the "Borrower") and the National Geographic Society ("NGS") for the loan of one exhibition. 1. Exhibition Loan The exhibition. Simply Beautiful, as listed in Addendum C is loaned by NGS. In addition, NGS will provide a press release and several images for promotional purposes. NGS agrees to loan the exhibition to the Borrower for display to the public from September 6, 2015 to November 29, 2015. The entire loan period will be August 21, 2015 through December 4, 2015 to allow for shipping. The exhibition is loaned at a fee of $10,000 USD. Shipping costs are included in the loan fee. The Borrower will pay the cost of any other fees associated with the normal business of importing and displaying an educational exhibition such as insurance, installation, dismantling, and repacking, advertising costs, etc. The Borrower agrees to pay in the following installments: $2,500 USD due on or before July 15, 2013 $2,500 USD due on or before July 15, 2014 $5,000 USD due on or before June 21, 2015 The Borrower will comply with all instructions supplied by NGS with respect to care, handling, installing, presenting, and securing the exhibition. The loan and all details and requirements will be managed by Abigail Bysshe, Specialist, Traveling Exhibitions, National Geographic Society, who shall serve as primary NGS contact for questions about the loan document. A list of addresses of relevant staff is attached to this document. 2. Facilities Report Within one week of signing this contract, the Borrower shall provide a facilities report, sending it to the attention of the Specialist, Traveling Exhibitions. If, in the opinion of NGS, the venue facility does not meet the required temperature/humidity, security, lighting, and/or insurance standards for the exhibition or the venue is unable to make changes that would meet the required standards, NGS has the right to deny the request and cancel this agreement. The exhibition will not be shipped unless NGS has received and approved the Borrower's facilities report. 3. Exhibition Display and Lighting The Borrower shall exhibit all exhibition materials and text and credit panels unless written permission to the contrary has been obtained in advance from NGS. The Borrower may not alter the title or text panels provided by NGS without prior written approval of NGS. Any additions to the exhibition must be reviewed and approved by NGS in advance. The Borrower agrees, at its expense, to display any and all text panels sent by NGS for inclusion in the exhibition. Any such panels will be returned to NGS at the conclusion of the exhibition. The Borrower shall devise a layout, which is appropriate to the space available and, at the same time, maintains the integrity, theme, and flow of the exhibition. Further, the Borrower agrees to provide a secure suitable storage facility for any material withdrawn from the exhibition for any reason. The Borrower agrees to provide adequate lighting, ensuring that the photographs, panels, and/or exhibition materials do not fade or are not harmed as a result of the Borrower's lighting of the exhibition. 4. Insurance The Borrower shall self-insure the exhibition for the duration of the Loan Period against all risk of physical loss or damage from any external cause except wear and tear, gradual deterioration and other standard exclusions. The Borrower will report immediately to the Specialist, Traveling Exhibitions, NGS, any damage to the exhibition materials while in transit or on the Borrower's premises, regardless of who may be responsible. The Borrower is a municipal corporation organized under the laws of the State of Califomia. For insurance purposes NGS has valued the Simply Beautiful artwork collection at fifty thousand dollars ($50,000.00). Borrower is self-insured up to one million dollars ($1,000,000.00) for general liability; an excess carrier is responsible for amounts above one million dollars ($1,000,000.00). NGS agrees that Borrower is not required to provide a certification of insurance to NGS covering the stated value of the artwork. 5. Indemnity Borrower agrees to indemnify, defend and hold harmless NGS, its officers, employees, and directors, and the respective successors and assigns of the foregoing ("NGS Indemnitees") from and against any and all losses, damages, liabilities, claims, demands, suits and expenses (including attorneys' fees) that the NGS Indemnitees may incur or be liable for as a result of any third party claim, suit or proceeding made or brought against any NGS Indemnitee based upon, arising out of, or in connection with Borrower's breach of any of its duties or obligations hereunder or caused by or occasioned by any deliberate act, fault or negligence of Borrower or anyone acting on Borrower's behalf. NGS agrees to indemnify, defend and hold harmless Borrower, its officers, employees, and directors, and the respective successors and assigns of the foregoing ("Borrower Indemnitees") from and against any and all losses, damages, liabilities, claims, demands, suits and expenses (including attorneys' fees) that the Borrower Indemnitees may incur or be liable for as a result of any third party claim, suit or proceeding made or brought against any Borrower Indemnitee based upon, arising out of, or in cormection with NGS's breach of any of its duties or obligations hereunder or caused by or occasioned by any deliberate act, fault or negligence of NGS or anyone acting on NGS's behalf. Each party shall give the other prompt notice of any claim or suit coming within the purview of this indemnity. Upon the written request of any indemnified person, the indemnifying party shall assume the defense of any claim, demand or action against such Indemnitee, and shall upon the request of the Indemnitee allow such Indemnitee to participate in the defense thereof, such participation to be at the expense of such Indemnitee. Notwithstanding the foregoing sentence, the party providing the defense shall be entitled to solely control the defense of the matter in its entirety, including without limitation, settlement, offers of compromise, trial, and appeal. 6. Transportation NGS has made custom crates for the exhibitions. NGS and the Borrower will work together with the chosen carrier to arrange for their delivery to the Borrower by the agreed upon date. Overseas shipments must be sent by air. Borrower agrees to pay any waiting charges associated with Borrower's delayed readiness to accept the Exhibition at its venue. Such payments shall be made directly to the Shipper upon receipt of Shipper's invoice. If the Borrower fails to pay the Shipper within thirty days of date of invoice, then NGS shall pay the Shipper and shall invoice the Borrower for reimbursement in full, plus a service charge equal to the lesser of 2% per month or the highest amount allowable by law. Borrower shall pay any such invoice within ten (10) days of receipt. The Borrower agrees to meet all out-bound transportation schedules. Addendum B, to the next venue or back to NGS. The Borrower agrees that if it is unable to receive and/or ship the exhibition in compliance with the transportation schedule, it will absorb the cost of an acceptable interim storage facility and any other expenses resulting from its inability to comply with such schedule. 7. Packing and Handling The Borrower will ensure that all packing and unpacking instructions given by NGS are followed completely. All packing materials must be retained. Exhibition materials shall be handled with at least the same care as the Borrower uses in handling its own property. Gloves must be worn when handling the exhibition images and text panels. No changes of anv kind may be made to the exhibition materials without the written approval of NGS in advance. In preparing exhibition materials for outgoing shipping, the Borrower shall ensure that the materials are packed in the same manner they were delivered to the Borrower and are prepared for out-going shipment at a date to be determined. A condition report book is included with this exhibition. The Borrower agrees to review the condition of all parts of the exhibition, filling out the condition reports in English when the exhibition is unpacked and when it is re-packed. The Borrower must examine the exhibition materials with in seven (7) days and prior to hanging the show and report any damage. If any damage to materials, at any time, then or during the loan period, is discovered, reports must be made immediately by phone (202-828-8041) or email abysshe@ngs.org and in writing to Abigail Bysshe, Specialist, Traveling Exhibitions. The Borrower agrees that it may not alter or repair any of the exhibition materials without first obtaining the express written permission of NGS. The Borrower shall be responsible for any damage to the exhibition materials that results from its negligence or failure to comply with this Agreement, including, but not limited to, its failure to comply with NGS's instructions for handling, installation, security, storage, and shipping. The Borrower agrees to pay, within thirty (30) days, any costs billed to it by NGS to cover the cost of repairs. 8. Security The Borrower shall, at its own expense, provide adequate security and suitable environmental condition for the exhibition material, and shall comply with any special instructions put forth by NGS relating to the care of said material. The Borrower shall provide security in the exhibition space twenty four hours a day during open hours and closed hours. Security may be a combination of guards, electronic surveillance, alarms, and/or, at night, locked galleries. 9. Publicity NGS will supply the Borrower with a press release which may be used in preparing publicity materials for the exhibition. All publications, notices, advertising, and publicity regarding the exhibition shall contain prominent acknowledgment that the exhibition was organized by the National Geographic Society, by which all rights are reserved. The credit line will be ''Simply Beautiful is produced and traveled by the National Geographic Society." All press releases, advertisements, and other publicity/educational materials must be reviewed and approved by NGS in advance of production, printing, and distribution. These materials should be sent to Specialist, Traveling Exhibitions, for approval within 3 business days. The Borrower agrees to provide copies, with translations in English when necessary, of all press releases, advertisements, and other similar materials relating to the exhibitions. Within two weeks of the close of the exhibition, the Borrower agrees to forward these materials and attendance figures to the Specialist, Traveling Exhibitions. NGS reserves the right to itself to copy, photograph, or reproduce the exhibition materials. The Borrower may not copy and reproduce any exhibition materials without consent from NGS. NGS and the Borrower will allow visitors and the press to take photographs within the exhibition, as long as no damage to the exhibition is caused by such photography and related lighting. 10. Damages If the Borrower cancels the exhibition prior to the loan period, the Borrower shall promptly so notify the NGS in writing. The Borrower will reimburse NGS for any costs through the date of notice related to work done or work commissioned by NGS to be done related to making arrangements for the exhibition to be readied or shipped to the Borrower. This may include, but is not limited to, customs costs, shipping, and/or storage. If the Borrower cancels ninety (90) days prior to the opening of the exhibition, NGS is entitled to 25% of the loan fee. If the Borrower cancels sixty (60) days prior to the opening of the exhibition, NGS is enfitled to 100% of the loan fee. upon prior written notice, NGS may terminate this Agreement prior to the begirming of the loan period for events beyond its control. The Borrower shall release, indemnify, and hold NGS, its Trustees, employees, and agents harmless from and against any and all loss arising from the Borrower's inability to display the exhibition because of loss or damage to the exhibitions materials while in transit or termination of the Agreement by NGS. If for any reason (except for events beyond its control defined above) NGS is unable to provide the exhibit and perform services substantially as described in this Agreement, NGS shall promptly so notify the Borrower in writing. NGS agrees to reimburse the Borrower for its reasonable documented out-of-pocket expenses incurred through the date of NGS' notice to the Borrower. If, after the execution of this Agreement NGS notifies the Borrower that it is unable to perform, the Borrower shall receive a full refund of any amounts paid to NGS as of the cancellation date and the Borrower shall have no further obligation to pay NGS any remaining portion of the fee which would otherwise be owed to NGS under this Agreement 11. Amendments Neither this Agreement nor any terms of it may be changed, waived, discharged or terminated, expect by a written statement signed by all parties. 12. Notice Except as otherwise required specifically herein, all notices and other communications provided for or permitted hereunder shall be made by hand-delivery, pre-paid first class mail, or fax. if to (a) National Geographic Society Abigail Bysshe Specialist, Traveling Exhibitions National Geographic Society 1145 17* Street, NW Washington, DC 20036 202-828-8041; FAX: 202-857-5864 Email abysshe@ngs.org if to (b) Karen McGuire Curator of Exhibitions City of Carlsbad, William D. Carmon Art Gallery 1775 Dove Lane Carlsbad, CA 92011 Email: Karen.mcguire@carlsbadca.gov Phone: 760-602-2022; Fax: 760-602-0525 All such notices and communications shall be deemed to have been duly given when delivered by hand, if personally delivered, or if by fax, when electronic confirmation of delivery is received. 13. Successor and Assignment No changes may be made and no assignments to other entities may be made to this Agreement without the signature of all three parties. 14. Waiver/Remedies No part of this Agreement may be waived as the result of a delay in fulfilling any Agreement terms by one or more of the parties. 15. Entire Agreement This Agreement, together with all written special instructions accompanying the exhibition, is intended by the parties as a final expression of their agreement and is a complete and exclusive statement of the agreement and understanding of the parties. This Agreement supersedes all prior agreements and understandings between the parties with respect to the subject mater contained herein. 16. Severability If one term is found to be unenforceable for any reason, the remainder of the Agreement terms will still be valid. 17. Legal agreement This Agreement is govemed and constmed in accordance with the laws of the United States. 18. Goveming Law; Dispute Resolution This Agreement shall be govemed by and constmed in accordance with the laws of the District of Columbia. The parties agree to participate in non-binding mediation in the jurisdiction of the non-filing party through the American Arbitration Association or a comparable organization's mediation service. If the parties are unable to resolve the dispute through mediation, they will proceed to non-binding arbitration in accordance with the mles of the American Arbitration Association in the jurisdiction of the non-filing party. Signed: NGS \fnh r /\ 1 I ^ Borrower Title K/V\^b>^^5 Titieabr^^^(la>ai:)^^t^Arbmm^ Date Date: 4-/^/(5 APPROVED AS TO FORM CELIAArt-;BS!^WE^,jG4ty-Attomey Paul Eamonson, Esq. Assistant City Attomey Addendum A National Geographic Staff National Geographic Society 1145 17* Street, NW Washington, DC 20036 (202) 857-7000 Museum fax number: 202-857-5864 Vice President, Exhibitions Kathryn Keane (202) 457-8460 kkeane@ngs.org Traveling Exhibitions Specialist, Abby Bysshe 202-828-8041 abysshe@ngs.org Director, Exhibits: Richard Mc Walters 202-775-6735 rmcwalte@ngs.org Exhibifions Coordinator: Matt DeOrio 202-857-7519/ (c) 202-256-1519 * Shipping coordinator Mdeorio@ngs.org Addendum B Transportation/Shipping Schedule Leave NGS via: . Pick up date from NGS anticipated is be Shipping Address: Shipper: Retum Shipment Address: National Geographic Museum National Geographic Society 1147 17* Street, NW Washington, DC 20036 ATTN: Matt DeOrio 202-256-1519 (c) To arrive at NGS no later than Addendum C Sent PDF previously