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Memorandum of Understanding with Meridian Academy for Tully Skate Park Public Art ProjectMEMORANDUM OF UNDERSTANDING: MERIDIAN ACADEMY TULLY PARK PUBLIC ART PROJECT This MEMORANDUM OF UNDERSTANDING: MERIDIAN ACADEMY TULLY PARK PUBLIC ART PROJECT ("MOU") is made this 26th day of October, 2010 ("Effective Date"), by and between the City of Meridian, a municipal corporation organized under the laws of the State of Idaho (hereinafter "City"), and Meridian Academy, a public high school in Meridian Joint School District no. 2 (hereinafter "School"). WHEREAS, students of School ("Artists"), following consultation with members of the Meridian Parks & Recreation ("MPR") Commission, members of the Meridian Arts Commission, and MPR Department staff, have designed and proposed to the MPR Department Director ("Director") a design, plan, and timeline for installation of a wall mural, as represented in Exhibit A hereto ("Mural") at Tully Park, 2500 N. Linder Road, Meridian, Idaho ("Site"); WHEREAS, Director finds that Artists' installation of Mural at Site will serve MPR's mission to enhance the Meridian community's quality of life by providing well-designed and properly maintained parks and recreational opportunities for all citizens; WHEREAS, School finds that Artists' installation of Mural at Site will serve School's mission to provide learning experiences that foster character, honor, opportunity, inquiry, community, and excellence; and WHEREAS, the City Council of the City of Meridian finds that the incorporation of public art into public spaces will promote public dialogue, add visual interest, character, and beautification, and deter graffiti; NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, the Parties agree as follows: I. SCOPE OF PROJECT. With the assistance and guidance of City -designated personnel, and in accordance with the terms and provisions of this MOU, Artists shall implement the Mural, as described and depicted in Exhibit A, on the concrete wall of the existing skateboard/bicycle ramp, at Site. Following installation of the painted portion of the Mural, Artists shall seek approval of such installation by Director. Director's approval shall be conditioned upon a determination that the painted portion of the Mural is in keeping with Artists' design as set forth in Exhibit A. Non- material design refinements and/or improvements shall be left to the discretion of Artists. Following Director's approval of the painted portion of the Mural, Artists and/or School shall cause the coating of the Mural with clear sealant, and following application of such sealant, Artists shall seek approval by Director. Director's approval shall be conditioned upon a determination that the sealant was applied and cured professionally according to industry standards. MEMORANDUM OF AGREEMENT MERIDIAN ACADEMY — TULLY PARK MURAL PAGE I of 4 II. MAINTENANCE AND REPAIRS. A. Determination maintenance needs. City shall make any and all determinations and decisions regarding maintenance, restoration, repair, and/or removal of the Mural. City shall, at its sole election, have the right to remove the Mural from public display, paint over the Mural, and/or destroy the Mural, in whole or in part. B. Restoration and repair. In the event that the Mural is damaged, destroyed, or obscured in whole or in part by graffiti, vandalism, or other natural or manmade cause, City shall not be required to repair or restore the Mural. If City chooses to repair or restore the Mural or any portion thereof, City may, at its sole election, but shall not be required to, seek Artists' or School's input regarding same. III. CREATION. INTEGRITY, AND OWNERSHIP OF MURAL. A. Waiver and relinquishment of rights. Artists and School shall, and hereby do, expressly waive any and all right, title, or interest in the Mural, any component thereof, and/or plans or designs related thereto. Artists and School understand that this waiver includes waivers of the exclusive rights of reproduction, adaptation, publication, and display. Artists and School shall relinquish any and all rights, title, and interest to the Mural, and hereby expressly waives any rights Artists or School have or may have to the Mural, including, but not limited to, the rights afforded artists under the Copyright Act of 1976 and the Visual Arts Rights Act of 1990, Title 17 U.S.C. §§ 101 et seq. Artists and School understand and expressly waive the rights of attribution and integrity, including as such are set forth in 17 U.S.C. § 106A. To the extent that the provisions of this MOU differ with the Copyright Act of 1976 and Visual Arts Rights Act of 1990, the provisions of this MOU will govern and any rights and duties created under that Act are expressly waived. B. Limited edition. The Mural shall be a limited edition of one. Artists and School warrant and represent that the Mural designed and installed pursuant to this MOU has never heretofore been designed, installed, created, published, or copied and that Artists are the sole creators and owners of all rights in the Mural and the design thereof. C. No copyright. Neither Artists nor School shall make any claim to the copyright of the Mural. D. Photographs of Mural by City. City may reproduce the image of the Mural and all preliminary studies and sketches thereof that have been delivered to and accepted, as City may desire for educational and public information purposes. Where practicable and to the extent of City's authority, Artists shall be collectively acknowledged to be the creators of the original subject thereof. If any alteration occurs to the Mural after installation, whether intentional or accidental and whether caused by City or others, upon written request of Artists or School, such Mural shall no longer be represented to be the work of Artists. E. Photographs of Mural by Artists. Artists and Schools may photographically reproduce the image of the Mural and all preliminary studies and sketches thereof, as Artists or School may desire for marketing, educational and public information purposes. Where practicable, Artists or School shall acknowledge on each such photographic reproduction the location of Mural. MEMORANDUM OF AGREEMENT MERIDIAN ACADEMY — TULLY PARK MURAL PAGE 2 of 4 F. Subcontracting or assignment of obligations. Artists may subcontract or assign obligations under this MOU that do not require their unique artistic talent or expertise. Any subcontractor or assignee shall be bound by all the terms and conditions of this MOU. IV. TERMINATION. A. Termination. Either party may terminate this MOU for any reason at any time upon written notice to the other party. B. Non -waiver of breach. A waiver of any breach or default of any provision of this MOU shall not be construed as a waiver of a breach of the same or any other provision hereof. V. GENERAL PROVISIONS. A. Relationship of Parties. It is the express intention of Parties that Artists and School are independent persons and not employees, agents, joint venturers, or partners of City. Nothing in this MOU shall be interpreted or construed as creating or establishing the relationship of employer and employee between any Artist and City or between any Artist and any official, agent, or employee of City. Nothing in this MOU shall be interpreted or construed as creating or establishing the relationship of employer and employee between any official, agent, or employee of School and any official, agent, or employee of City. All parties acknowledge that Artists and School are not employees of City. B. Recreational immunity applies. Both parties specifically acknowledge and agree that City holds and enjoys any and all statutorily available immunities, rights, and limitations on liability afforded to City as a landowner who has made its land available to the public without charge for recreational purposes. Both parties specifically acknowledge and agree that Artists and School's use of and entry into Tully Park for the activities described in and related to this MOU are "recreational purposes" as such term is defined in Idaho Code section 36-1604. C. Compliance with law. Throughout the course of this MOU, Artists and School shall comply with any and all applicable federal, state, and local laws. D. Non-discrimination. Throughout the course of this MOU, neither Artists nor School shall discriminate against any person as to race, creed, religion, sex, age, national origin, sexual orientation or any physical, mental, or sensory handicap. E. Entire agreement. This MOU constitutes the entire understanding between the Parties. This MOU supersedes any and all statements, promises, or inducements made by either party, or agents of either party, whether oral or written, whether previous to the execution hereof or contemporaneous herewith. The terms of this MOU may not be enlarged, modified or altered except upon written agreement signed by both parties hereto. F. MOU governed by Idaho law. The laws of the State of Idaho shall govern the validity, interpretation, performance and enforcement of this MOU. Venue shall be in the courts of Ada County, Idaho. MEMORANDUM OF AGREEMENT MERIDIAN ACADEMY — TULLY PARK MURAL PAGE 3 of 4 G. Notice. Any and all notice required to be provided by either of the Parties hereto, unless otherwise stated in this MOU, shall be in writing and shall be deemed communicated upon mailing by United States Mail, addressed as follows: School: Joseph Palaia, Principal Meridian Academy 2311 E. Lanark Street Meridian, Idaho 83642 (208) 855-4315 palaia.joseph@meridianschools.org C Steve Siddoway, Director City of Meridian Parks & Recreation Department 33 E. Broadway Ave. Meridian, Idaho 83642 (208) 888-3579 ssiddoway@meridiancity.org Either party may change its address for the purpose of this paragraph by giving written notice of such change in the manner herein provided. A. Approval required. This MOU shall not become effective or binding until approved by the duly authorized entities of City, Artists, and School. The parties signatory hereto represent and warrant that each is duly authorized to bind, respectively, City, Artists, and School to this MOU in all respects. IN WITNESS WHEREOF, the parties hereto have executed this MOU on the 26th day of October, 2010. ARTISTS / SCHOOL: Jefeph Palaia, Principal Meridian Academy CITY OF MERIDIAN: A BY: Tammy d eerd'=, r Mayor -17 v, k MEMORANDUM OF AGREEMENT MERIDIAN ACADEMY — TULLY PARK MURAL PAGE 4 of 4 EXHIBIT A