Apply for a Grant

Note: this is a sample draft (subject to change) of explanatory information regarding the contract and the contract itself that must be signed by those who receive a Creative Capital grant. Applicants should read and understand the terms of this contract before completing their application. Successful applicants will have up to 90 days to complete this contract or else the grant is forfeited.

[SAMPLE] INFORMATION REGARDING FINANCIAL AGREEMENT WITH CREATIVE CAPITAL FOUNDATION (current as of February 2005)

Part of the grant process at Creative Capital involves a financial arrangement between artists and the Foundation regarding future revenue derived from the projects being funded. A key aspect of our experiment is to see to what extent the arts community can fund itself: Any revenue derived by Creative Capital from projects it funds will be used to support future artists’ projects. In 2004, our first project, Barbara Hammer’s film, Resisting Paradise, returned a small amount to the fund and we expect a couple other projects to reach profitability in 2005.

The purpose of this document is to provide you with a sense of the basic financial agreement. If you already have a general familiarity with contracts you may be comfortable reviewing this contract on your own. However, you may wish to have an attorney review it as well.
It is important to us to offer a fair and proportional financial arrangement, one that will not be onerous to the artists with whom we are working—or to us.

Here’s the Idea:

1. A Final Project Budget will be mutually agreed upon. We are aware that artists often fail to include adequate fees to themselves, and often do not charge off to the project budget items such as the costs of utilizing personal equipment.
2. The percentage of the Creative Capital grant to the project will be calculated based on this Final Project Budget figure (“Grantor’s Percentage”).
3. All revenues including grants, cash awards, fellowships, sales, etc. generated up to that Final Project Budget figure go directly to the artist/project. We know that many of the projects we support may not generate revenues in excess of this amount.
4. However, once the Final Project Budget figure is met, Creative Capital will be entitled to receive the Grantor’s Percentage out of all proceeds from the project until Creative Capital has recouped the total dollar amount of its Grant. After that point, the Grantor’s Percentage will be halved for all future receipts from the project.

Below you will find explanations and several examples of the way the financial agreement might work in different situations:

If you are receiving a grant to produce work:

1. You will create a Final Project Budget (including appropriate artist fees, development costs, use of personal equipment, etc.) that we will review.
2. The percentage of Creative Capital’s contribution to the total budget will then be calculated.
3. All revenues generated up to that Final Project Budget figure go directly to cover project costs.
4. For any revenue generated in excess of that figure, Creative Capital will receive the percentage it contributed to the budget, until it has recouped its actual dollar contribution.

After Creative Capital has recouped the dollar amount it has contributed to the project, the percentage of project proceeds it is entitled to will be halved.

Example: Creative Capital grants $10,000 towards a project with a Final Project Budget of $100,000. After the Final Project Budget amount is met, Creative Capital will receive 10% of all future receipts until it has recouped its $10,000. From then on, it will receive 5% of all future proceeds.

If you are receiving a grant to present or distribute work already completed:

1. You will create a Final Project Budget. In this case, The Final Project Budget will include all costs of development and production along with all distribution or presentation costs. We will then review the Final Project Budget.
2. The Grantor’s Percentage will then be formulated.
3. All revenues generated up to the Final Project Budget figure go directly to cover project costs.
4. For any revenue generated in excess of that amount, Creative Capital will receive the percentage it contributed to the budget, until it has recouped its actual dollar contribution.
5. After Creative Capital has recouped the dollar amount it has contributed to the project, the percentage of project proceeds it is entitled to will be halved.

Example: An artist first receives a $10,000 Production Grant as set forth above. Following production, the artist applies for a Distribution/Presentation Grant and receives an additional $5,000. At that point, the Final Project Budget figure is amended to $105,000 (the original Production Budget of $100,000 plus the Presentation/Distribution amount). The Grantor’s Percentage at that point would equal 14.3%. ($15,000/$105,000). Therefore, Creative Capital will receive 14.3% of the project proceeds until it has recouped its $15,000; after it has recouped its $15,000 contribution, it will be entitled to 7.1% of all future proceeds.

If you are receiving a grant to develop a project:

1. Again, a budget will be mutually agreed upon. In this case, it will be a budget just for development (the “Development Budget”).
2. Upon production, a Final Project Budget is agreed upon. The Final Project Budget will be equal to the production costs plus the Development Budget. Again, a percentage of the Creative Capital grant to the total Project Budget will be formulated, resulting in a calculation of the Grantor’s Percentage.
3. In addition, if any development projects were to apply for and receive further production or distribution/presentation grants from Creative Capital, then the standard production/distribution deal would be applied to that portion of the Creative Capital grants.

Examples: Creative Capital grants $10,000 towards development for a project. The Development Budget is $15,000. Upon production, a Final Project Budget of $100,000 is agreed upon ($15,000 Development and $85,000 for Production).

When the Final Project Budget is raised, the artist pays Creative Capital back its development grant of $10,000, then Creative Capital will be entitled to 5% of the project’s proceeds in perpetuity.

These examples do not cover every potential scenario, but we hope they provide an idea of how the arrangement might work.

CREATIVE CAPITAL FOUNDATION SAMPLE ARTIST CONTRACT
(current as of February 2005)

Dear Artist:
This Letter of Agreement, when fully signed by the parties hereto shall, along with the Attachments, constitute the entire agreement between Creative Capital Foundation (“Creative Capital”) and you with respect to the Project.

1. Grant.
Creative Capital agrees to pay to you the sum of $ 10,000 (the “Grant”) for the purpose of {developing, producing, distributing} the Project. The Grant shall be paid in three (3) installments: the first installment which shall be an amount equal to eighty (80%) percent of the Grant, and shall be paid upon full execution of this Letter Agreement. The second installment shall be in an amount equal to ten (10%) percent of the Grant, shall be paid upon Creative Capital’s receipt of a complete “Interim Report” as defined below in section 3b(i) of this document. The third installment shall be in an amount equal to ten (10%) percent of the Grant, and shall be paid upon Creative Capital’s receipt of a complete “Final Report” as defined below in section 3b(ii) of this document.

2. Services.
In addition to the initial grant of $ 10,000 that has been awarded to the Grantee by the Creative Capital Foundation, the Grantee is eligible to apply for additional funding and service opportunities once they have convened with Grantor for an orientation meeting regarding the Project. These funding and service opportunities include Strategic Support of $5,000, an invitation to attend the Annual Artists’ Retreat and/or participate in the Strategic Planning Program. (A grantee must attend an orientation meeting with the Grantor no later than June 30th of the year in which they have received their award.)
Once a Grantee has participated in one or more of the following: the Annual Artists’ Retreat and/or; Strategic Planning Program and/or; attending a Creative Capital Professional Development Retreat; they are eligible for Special Opportunities and Follow-up Funding as well as opportunities for special presentations on Creative Capital Foundation’s website.

3. What you will need to provide.
Before this Letter of Agreement can be fully signed and as a condition precedent to Creative Capital’s obligation to pay you the first installment of the Grant, you must provide the following documents:
(i) a detailed description of the Project, including a project timeline, which shall be attached to this Agreement as Attachment A, “Project Description”; and
(ii) a project budget for the Project, which shall be attached to this Agreement as Attachment B, “Project Budget”.
(b) After you have received your first installment payment, you shall deliver the following reports to Creative Capital:
(i) a written status report regarding the Project (the “Interim Report”) shall be delivered at a date to be determined by Creative Capital. Creative Capital will provide you with forms for such reports; and
(ii) a final report within sixty (60) days of the Project’s completion (the “Final Report”). Creative Capital will provide you with forms for such reports.

4. Changes to the Project Description or Project Budget.
(a) Creative Capital acknowledges that the creative process may make necessary changes and/ or supplements to the Project and the Project Description necessary; however, the following elements are of the essence of this Letter of Agreement and may not be changed by you without the prior written consent of the Creative Capital: participation by (grantee’s name)____________________________________________. Any other changes to the Project Description which do not require Creative Capital’s consent shall nevertheless be disclosed in writing to Creative Capital in the reports furnished pursuant to Paragraph 2 above.
(b) You agree not to make any change in the Project Budget without the prior written consent of Creative Capital, which consent shall not be unreasonably withheld, other than incidental changes to the line allocations of the Project Budget, not to exceed twenty (20%) percent in either direction, without the consent of Creative Capital.

5. Financial Terms.
(a) In consideration of the Grant, you hereby agree that Creative Capital shall be entitled to a portion of the Gross Proceeds, if any, derived from the exploitation of the Project. Accordingly, you shall pay or cause to be paid to Creative Capital, that certain portion of the Gross Proceeds (“Creative Capital’s Percentage”) as follows:
(i) until such time as Creative Capital has received amounts equal to the Grant, Creative Capital’s Percentage of the Gross Proceeds shall be based on what percentage of Creative Capital’s funding represents in relation to the total amount of the Project Budget; and
(ii) upon Creative Capital’s full recoupment of the Grant, Creative Capital’s Percentage shall be reduced to one half of the percentage set forth in (i) above and which Creative Capital shall be entitled to receive for as long as thereare Gross Proceeds derived from the Project.
Creative Capital will use such amount solely for its exempt purposes.
(b) “Gross Proceeds” as used herein shall mean all receipts, in excess of the Project Budget, derived from the distribution, exhibition, presentation, reproduction, and exploitation of the Project including but not limited to grants, fellowships, awards, television sales, and ticket receipts, or any ancillary or derivative rights therein, in all media, throughout the universe, in perpetuity and all ancillary, allied, subsidiary, and derivative rights therewith and thereto.
(c) You will be required to deliver to Creative Capital, statements of account in the form of Attachment C hereto. You will furnish such reports to Creative Capital on an annual basis (the “Accounting Period”) commencing with the submission of the Final Report and continuing for so long as there are Gross Proceeds derived from the Project until such time as Gross Proceeds are less than Five Thousand dollars ($5000) a year for two (2) consecutive years. Your obligation to submit a statement of account shall resume, however, for any year in which there are Gross Proceeds in excess of Five Thousand dollars ($5000) during the period that is five (5) years from the last statement of account submitted. Each statement shall be delivered within thirty (30) days of the end of the applicable Accounting Period. You may be required to supply Creative Capital with additional reports upon Creative Capital’s reasonable request. The parties may mutually agree at any time to discontinue your obligation to furnish such annual statements.
(d) At Creative Capital’s sole expense, Creative Capital shall have the right to audit your books and records applicable to the Project, one time only in any twelve-month period, and upon reasonable prior written notice.

6. Credit.
In all and any usage of the Project issued by or authorized by Artist, credits shall be included or attached containing substantially the following: “A Project of Creative Capital” (the “Credit”). The Credit shall appear in a grouping with all other funding credits. Wherever you receive credit in any advertising, promotion or publicity for the Project, Creative Capital shall receive the Credit, provided that such advertising, promotion or publicity is within your control. When such is not the case, then you shall use your best efforts to ensure the Credit is afforded to Creative Capital.

7. Intellectual Property.
As between Creative Capital and you, you shall own and control all intellectual property rights, including without limitation copyright, trademark and patent rights, in and to the Project; and you shall have the right to assign, transfer, sell or encumber any such rights provided however, you shall give Creative Capital written notice of any such assignment or transfer and the assignee thereof shall be bound to your obligations hereunder.

8. Representations and Warranties.
You warrant and represent that: (a) the Project is your original creation and is solely the result of your artistic effort; (b) the Project is free and clear of liens or encumbrances from any source whatsoever; (c) you know of no adverse claims to the Project and that the Project, as a whole, is not in the public domain; (d) you have secured or will have secured prior to completion of the Project Description, any and all necessary rights, clearances and/or licenses with respect to the Project, and any other materials and elements embodied in or used in connection with the performance of this Agreement; (e) none of the Project and/or other materials provided, created, produced, compiled, developed or otherwise supplied hereunder, shall violate or infringe upon the copyright, trademark, privacy, creative or other rights of any person, firm, corporation or other third party by reason of distribution, exhibition or other use; (f) you have not entered into and will not enter into any agreement adverse to or inconsistent with this Agreement.

9. Indemnification.
(a) You agree to indemnify and hold Creative Capital, its directors, officers and employees harmless from and against any claims, causes of action, demands, loss or damage by reason of (i) a breach of any representation, warranty or covenant hereunder, (ii) any exhibition, presentation, distribution or exploitation of the Project or any rights therein and (iii) the negligence, fault or default of you, your employees, authorized agents, servants or independent contractors hired by you, or any subcontractor hired by any of the foregoing.
(b) You shall be solely responsible for all injuries to persons, including death, or damage of property, sustained during his/her performance of this Agreement and resulting from any negligence, fault or default of you or any of your employees, authorized agents, servants or independent contractors hired by you, or any subcontractor hired by any of the foregoing.
(c) You shall comply with all applicable State, City, and Federal laws, ordinances, codes, and regulations which affect the Project. In addition you shall comply with not-for-profit rules forbidding the carrying on of propaganda or otherwise attempting to influence legislation or intervention in (including the publishing or distribution of statements) any political campaign on behalf of any candidate for public office which affect the Project. Artist shall, at his or her own expense, obtain all permits, licenses and approvals required and shall comply with all laws in connection therewith.
(d) You agree to notify Creative Capital promptly, in writing, of any legal claim or action of which you have knowledge, which is in any way related to this Agreement or your obligations hereunder.
(e) The warranties, representations and indemnifications contained herein shall survive any termination or expiration of this Agreement.

10. Creative Capital Rights.
From the execution hereof forward, Creative Capital and others, as specified, shall have the following rights in the Project on a non-exclusive basis: (i) Creative Capital shall have the non-exclusive right to use the Project for archival purposes; (ii) Creative Capital shall have the non-exclusive right to use and authorize others to use the Project, and the names, likenesses and biographies of any and all persons appearing in or performing services in connection with the Project for purposes of promoting the Project or for institutional promotion of Creative Capital; and (iii) Creative Capital, and such other parties as they may designate, shall have the non-exclusive right to duplicate and distribute any written materials prepared for use in conjunction with the Project.
(b) Creative Capital shall have the right to terminate the Agreement for cause if (i) you fail to cure or correct Non-compliance. “Non-compliance” as used herein shall mean if you should materially breach any of the terms, conditions or covenants of this Agreement, or conduct yourself in such a way in the provision of services required by this Agreement that the interest or activities of Creative Capital is subject to substantial harm. In such event, then Creative Capital shall notify you in writing of such failure, breach or conduct and offer you an opportunity to correct such failure, breach or conduct within thirty (30) days. If, in the reasonable opinion of Creative Capital, you do not cure such failure, breach or conduct, then Creative Capital shall have the right to terminate this Agreement, or (ii) you shall become insolvent or bankrupt, or assign the Agreement or its proceeds for the benefit of creditors, or take advantage of any insolvency statute or debtor or creditor law, now or hereafter enacted or amended, or if your property or affairs shall be placed in the hands of a receiver or receivers. In the event of any such termination as set forth above, all executory obligations of Creative Capital shall be null and void and of no further force or effect, but your executory obligations shall survive and remain in full force and effect.
(c) Notwithstanding any other provision of this Agreement to the contrary, you agree that you will look only to Creative Capital for payment of the Grant. You further agree that you waive any right(s) of claim(s) you may have for payment against the Board of Directors of Creative Capital (the “Board”), and release and forever discharge the Board from all claims, demands, and damages of any type, relating to the Grant, including, without limitation, for breach of this contract. No member of Creative Capital or the Board or any officer or employee of Creative Capital or the Board shall be liable to you personally under or by reason of this Agreement or any of its provisions.

11. Insurance.
You and/or the exhibitors, presenters and distributors of the Project, as applicable, shall maintain an insurance plan that will include coverage for comprehensive general liability in connection with the Project. Unless otherwise specified, the limits of coverage that will be obtained and maintained by you and/or each subcontractor shall be in the amount of one (1) million dollars ($1,000,000.00) per occurrence and three (3) million dollars ($3,000,000.00) in the aggregate. You or your subcontractor must effect said policies and maintain said policies until completion of the Project Description and in all events up to the date when final payment is made by Creative Capital. You shall be solely responsible for all other insurance that is required by law, including but not limited to automobile liability, workers’ compensation and disability insurance.

12. Assignment.
It is understood and agreed that the subject matter of this Agreement is special, unique, and of an artistic and intellectual nature, and that your personal services are of the essence herein. Accordingly, you shall not assign or transfer this Agreement or any portion thereof to another party without the express written consent of Creative Capital. Notwithstanding the foregoing, you may subcontract portions of the Project Description at your sole expense, provided that said subcontracting shall not affect your primary responsibility for the creative and artistic portions of the Project and provided such work is performed under your personal supervision. Should legal or fiscal concerns require that Creative Capital or the Board assign its rights and obligations hereunder, then Creative Capital may do so without your prior consent, but shall give you written notice of the assignment.

13. Offer Subject to Rescission.
Please note that this letter of agreement is an offer, the acceptance of which shall be evidenced only by your signature hereto. Creative Capital must receive your signature on this letter agreement no later than March 21, 2005 (“offer period’) or else this offer shall be automatically revoked, without any further action by Creative Capital. In the event a copy of this letter of agreement signed by you is not received by Creative Capital during the offer period, you shall not be eligible to receive the grant or any of the services or additional funding set forth in this letter of agreement and this agreement shall be deemed void and have had no legal validity from its inception.

14. Miscellaneous.
The Agreement embodies the entire agreement and understanding of the parties and supersedes all prior agreements and understandings relating to the subject matter hereof. The relationship created by this Agreement between Creative Capital and the Grantee is one between a not-for-profit funding organization and recipient, and shall in no way be construed to create or appoint the Grantee as an agent or employee of Creative Capital or the Board for any purpose whatsoever. This Agreement shall be governed by the laws of the State of New York without regard to its conflicts of law principles. No alteration, change or modification of the terms of this Agreement shall be valid unless made in writing and signed by all parties hereto and approved by appropriate action of Creative Capital.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written, to be effective as of the day and year first above written.
Agreed and Accepted:
Creative Capital Foundation
By:_______________________
Date:____________________[Grantee Name & Signature]
Date:____________________

Attachment A: “Project Description” (a detailed description of the Project)
Attachment B: “Project Budget” (a project budget for the Project)
Attachment C: “Statements of account on an annual basis (the “Accounting Period”) commencing with the submission of the Final Report and continuing for so long as there are Gross Proceeds derived from the Project until such time as Gross Proceeds are less than Five Thousand dollars ($5000) a year for two (2) consecutive years.