HomeMy WebLinkAboutC-8524-5 - MOU and Loan Agreement - Getting Your BearingsAMENDMENT NO. ONE TO MEMORANDUM OF UNDERSTANDING AND LOAN
AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND
DAVID BOYER
V
THIS AMENDMENT NO. ONE TO MEMORANDUM OF UNDERSTANDING AND
LOAN AGREEMENT ("Agreement') is made and entered into as of this 2nd day of
August, 2019 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a
California municipal corporation and charter city ("City"), and DAVID BOYER, 15150 Sheri
K Bar Lane, Reno, Nevada 89521 ("Artist').
RECITALS
A. On October 9, 2017, City and Artist entered into a Memorandum of Understanding
and Loan Agreement ("Agreement') for City to mount a temporary public exhibition
at the Civic Center Park located at 100 Civic Center Drive, Newport Beach,
California ("Exhibition"), consisting in part of a certain work titled "Getting Your
Bearings" ("Art Work") created by Artist.
B. The parties desire to enter into this Amendment No. One to extend the term date,
extend the Exhibition Period, update Exhibit A, increase compensation, and to
change the date in which the Art work shall be picked up on or by.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM AND EXHIBITION PERIOD
Section 1 of the Agreement is amended in its entirety and replaced with the
following:
"1.1 The term of this Agreement shall commence on the Effective Date and shall
terminate on January 31, 2020, unless terminated earlier or extended by written
amendment to this Agreement.
1.2 The Exhibition Period shall take place from October 9, 2017 to January 31,
2020 ("Exhibition Period"), unless extended or reduced by City."
2. HONORARIUM
Section 3.1 of the Agreement shall be amended in its entirety and replaced with
the following: "The City agrees to compensate the Artist with an honorarium in the amount
of Three Thousand Eight Hundred Fifty Dollars and 00/100 ($3,850.00) which shall
constitute full compensation for the loan of the Art Work to the City and any associated
Artist costs during the term of the Agreement ("Honorarium"). City agrees to pay the Artist
one half (1/2) of the Honorarium upon execution of this Agreement and the remaining one
half (1/2) of the Honorarium upon confirmation of scheduled pick-up of the Art Work at
the conclusion of the Exhibition Period. Artist shall submit invoices with the Artist name
and title of the Art Work to the City upon execution of the Agreement and upon
confirmation of the scheduled pick-up of the Art Work. The City shall make payments
within thirty (30) calendar days upon approval of the invoice."
David Boyer Page 1
The total amended compensation reflects Artist's additional Honorarium for the
extended Exhibition Period, in an amount not to exceed Five Hundred Dollars and
00/100 ($500.00)
Exhibit A of the Agreement shall be amended to reflect the additional Honorarium,
attached hereto as Exhibit A and incorporated herein by reference.
3. SHIPPING OF ART WORK
Section 4.3 of the agreement is amended in its entirety and replaced with the
following: "4.3 Artist shall cause the Art Work to be picked up at the Location on or by
January 31, 2020 at a mutually agreed upon date and time."
4. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
David Boyer Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY' OFFICE
Date:7/Wofot
CITY OF NEWPORT BEACH,
a California munical corporation
Date: FLC26 -l9
By: I& BY:
Foe' Aaron C. Harp 3O0 Gr K. Leung
City Attorney olCi Manager
ATTEST:
Date:
By:
Lei i I. Br n
City Cler
Attachment:
ARTIST: DAVID BOYER
Date: 9-11-19
By: I✓
David Boyer
Artist
[END OF SIGNATURES]
Exhibit A — Description of Art Work
David Boyer Page 3
EXHIBIT A
DESCRIPTION OF ART WORK
ARTIST NAME: David Boyer
TITLE OF ARTWORK: Getting Your Bearings
Size: 12.5'x 15' x 13'
Weight: 1,900 lbs.
Medium: Steel
Date Completed: 2014
Location: Reno, NV
Honorarium: $3,850
For sale: $65,000
Image:
David Boyer Page A-1
T
N MEMORANDUM OF UNDERSTANDING AND LOAN AGREEMENT
iYJ
BETWEEN THE CITY OF NEWPORT BEACH AND
t DAVID BOYER
v
THIS MEMORANDUM OF UNDERSTANDING AND LOAN AGREEMENT
("Agreement") is made on this 9th day of October, 2017 by and between the CITY OF
NEWPORT BEACH, a California municipal corporation and charter city, located at 100
Civic Center Drive, Newport Beach, California 92660 ("City") and DAVID BOYER, 15150
Sheri K Bar Lane, Reno, Nevada 89521 ("Artist').
RECITALS
A. The City desires to mount a temporary public exhibition at the Civic Center Park
located at 100 Civic Center Drive, Newport Beach, California ("Exhibition"),
consisting in part of a certain work titled "Getting Your Bearings" ("Art Work")
created by Artist, a description of which is attached as Exhibit A to this
Agreement, and incorporated herein by reference.
B. Artist owns the Art Work and desires to lend it to the City for the purpose of the
Exhibition.
C. Artist warrants that he/she possesses all rights and authority necessary to lend
the Art Work to City and to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the promises contained
herein, the City and Artist mutually agree as follows:
TERM AND EXHIBITION PERIOD
1.1 The term of this Agreement shall commence on the Effective Date and shall
terminate on September 30, 2019, unless terminated earlier or extended by written
amendment to this Agreement.
1.2 The Exhibition Period shall take place from October 9, 2017 to September
30, 2019 ("Exhibition Period"), unless extended or reduced by City.
2. NATURE OF SCULPTURE EXHIBITION
The Exhibition shall include the Art Work, as further described in "Exhibit A." The
Exhibition shall take place in the Civic Center Park located adjacent to the City of Newport
Beach Civic Center at 100 Civic Center Drive, Newport Beach, California ("Location").
HONORARIUM
3.1 The City agrees to compensate the Artist with an honorarium in the amount
of Three Thousand Three Hundred Fifty Dollars and 00/100 ($3,350.00) which shall
constitute full compensation for the loan of the Art Work to the City and any associated
Artist costs during the term of the Agreement ("Honorarium"). City agrees to pay the Artist
one half (1/2) of the Honorarium upon execution of this Agreement and the remaining one
half (1/2) of the Honorarium upon confirmation of scheduled pick-up of the Art Work at
the conclusion of the Exhibition Period. Artist shall submit invoices with the Artist name
and title of the Art Work to the City upon execution of the Agreement and upon
confirmation of the scheduled pick-up of the Art Work. The City shall make payments
within thirty (30) calendar days upon approval of the invoice.
3.2 Art Work may be available for purchase during the Exhibition Period. Artists
who wish to make their Art Work available for sale during the Exhibition Period agree that
Art Work shall not be de -installed until the conclusion of the Exhibition Period, unless
removed earlier by the City. The City will not request a commission from the sale of the
Art Work.
4. SHIPPING OF ART WORK
4.1 Artist is encouraged to contract with a professional art handler to pack the
Art Work for shipment to and from the Location. Artist shall bear all costs and risks of
loss associated with packing and shipping the Art Work to and from the Location.
4.2 Artist shall cause the Art Work to ship to the Location on or by October 14,
2017 at a mutually agreed upon date and time.
4.3 Artist shall cause the Art Work to be picked up at the Location on or by
September 30, 2019 at a mutually agreed upon date and time.
4.4 If the Artist is unable to accept the Art Work upon the conclusion of the
Exhibition Period or fails to take control of the Art Work immediately upon de -installation
of the Art Work, the City -may place the Art Work in public storage for the account of Artist
or may retain possession and charge storage fees. City shall also maintain insurance on
the Art Work during the storage period. The City shall have a lien for the storage fees
and cost of insurance during the storage period against the Art Work.
4.5 If the Art Work has not been reclaimed after thirty (30) calendar days from
the termination or expiration of this Agreement, the City shall have the right and power to
sell the Art Work at auction to satisfy the lien and associated costs, following the
procedure provided in Section 3052 of the California Civil Code, or any successor statute.
At any such auction the City shall have the right to bid on the Art Work.
4.6 If there is a change in ownership of the Art Work during the term of the
Agreement, the City may require that the new owner establish the legal right to receive
the Art Work by providing the City with satisfactory proof of ownership before the City will
relinquish the Art Work to him or her. Artist shall cause the new owner to be aware of,
and bound by, this Agreement.
David Boyer Page 2
5. INSTALLATION AND DE -INSTALLATION
5.1 City shall bear the costs of installation and de -installation of the Art Work.
Installation costs commence upon City acceptance of delivery of the Art Work at the
Location.
5.2 Should Artist elect to be on Location for installation or de -installation, Artist
hereby releases and discharges City from any and all claims of personal injury arising
from Artist's participation in the installation or de -installation. Should Artist seek to have
a representative or employee on site for installation or de -installation, such person(s) shall
sign a separate liability waiver.
6. CARE AND SAFEKEEPING
6.1 Artist understands that during the Exhibition Period the Art Work will be
located in an unsecured public location along a major thoroughfare, easily accessible to
the public and open to the elements.
6.2 Artist understands that the City's maintenance crews may use routine
watering and gardening equipment around the Art Work to maintain the landscaped
areas. Artist will not hold the City responsible for any unintentional damage that may
occur from the gardening equipment.
6.3 The City shall exercise the same care with respect to the Art Work as it does
in safekeeping of comparable property of its own at such locations.
7. MAINTENANCE AND REPAIRS
7.1 The Artist, at their sole cost and expense, shall maintain and repair the Art
Work during the Exhibition Period. The Artist will not seek any reimbursement or other
payment from the City for incurring maintenance and/or repair costs and expenses related
to the Art Work.
7.2 The City, at its sole cost and expense, shall maintain and repair the
Location, provided however; the City is not required to provide security for the Art Work.
The City will not seek any reimbursement or other payment from the Artist for incurring
maintenance costs related to the Location.
7.3 If any damage to the Art Work will render the Art Work unsafe and otherwise
hazardous to the public health, safety and welfare, then either the Artist will restore the
Art Work to a safe condition, as determined by the City Project Administrator, in writing;
or will remove or cause the removal of the Art Work in accordance with Section 5 of this
Agreement. If the City causes the removal (and subsequent storage) of the Art Work due
to the failure of the Artist to act in a timely manner, as set forth herein, the City will be
deemed to be acting on behalf of the Artist and at the sole cost and expense of the Artist.
David Boyer Page 3
8. RISK OF LOSS AND INSURANCE
8.1 City shall not be responsible for normal wear and tear, acts of God or any
weather related damage to the Art Work. City agrees to bear the risk of loss or damage,
excluding maintenance and repair costs, to the Art Work, up to a maximum of the fair
market value of the Art Work immediately prior to the damage. The City shall not be
responsible or otherwise financially liable for any accident, theft, vandalism or damage to
the Art Work from any cause beyond the payment of the above amount to the Artist.
8.2 The City shall procure and maintain insurance against claims for injuries to
persons or damages to property which may arise from or in connection to the Art Work
supplied to the City but only with respect to the City's liability.
8.3 The City shall procure and maintain fine arts coverage for any damage to
the Art Work. Coverage shall apply to unscheduled fine arts in the City's care, custody
or control not to exceed a loss amount of Two Million Five Hundred Thousand Dollars
and 00/100 ($2,500,000). The City will not be held responsible for loss resulting from a
Flood or Earthquake.
8.4 Coverage provided by the City shall remain in force and effect during the
term of the Agreement and the cost shall be borne by the City.
8.5 Artist is encouraged to purchase a commercial general liability policy on an
occurrence basis in the amount of One Million Dollars and 00/100 ($1,000,000) per
occurrence and Two Million Dollars and 00/100 ($2,000,000) in the general aggregate to
protect the Artist from claims of bodily injury or property damage. Additionally, if the value
of submitted Art Work exceeds the fine arts limit purchased by the City, it is the City's
recommendation that the Artist purchase a property damage/fine arts policy covering the
value of the Art Work. The cost of such insurance(s) shall be borne by the Artist.
8.6 Upon execution of this Agreement, Artist acknowledges and agrees that he/
she are displaying the Art Work at the Location at his/her own risk.
9. HOLD HARMLESS AND INDEMNITY PROVISION
9.1 The Artist shall hold harmless, indemnify and defend the City, its elected
officials, officers, employees, agents, boards, commissions, representatives and
volunteers ("Indemnified Parties") from any and all damages, costs or expense, at law or
in equity, that may at any time arise or be asserted due to injury to property or injury to
person caused by any willful or negligent act by the Artist, or any of his/her directors,
officers, employees, representatives, agents and volunteers.
9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
the Artist to indemnify the Indemnified Parties from any claim arising from the negligence
or willful misconduct of the Indemnified Parties, including any negligence or willful
misconduct in the selection of the Location site or the installation of the Art Work. Nothing
in this indemnity shall be construed as authorizing any award of attorneys' fees in any
action on or to enforce the terms of this Agreement.
David Boyer Page 4
10. EXHIBITION CATALOGUE —ADVERTISING AND USE OF IMAGES
10.1 The City shall have the right to reproduce, distribute, and/or or display
representations of the Art Work in any non-commercial manner whatsoever. For the
purpose of this limitation, the reproduction, representation, distribution and display of the
Art Work or materials, designed solely to promote the City, its services, or to attract
visitors or businesses, shall be deemed non-commercial.
10.2 It is expected that City may produce publications and other material in
connection with the Exhibition. In such an event, City shall first obtain the Artist's consent.
If such consent is granted, all such materials or publications shall be subject to Artist's
approval, which approval will not be unreasonably withheld.
10.3 Upon request, City shall provide Artist with copies of materials, articles,
reviews or features in which the Art Work is represented.
10.4 City reserves the right to create its own marketing collateral.
ifr_111triIILR1l ] 11150 04
11.1 City's Representative. Unless otherwise designated in writing, the Library
Services Director shall serve as the City's Project Administrator for the display of the Art
Work under this Agreement. All activities performed under this Agreement shall be
coordinated with this person or his/her designee.
11.2 Artist's Representative. David Boyer shall serve as the Artist's Project
Administrator for the display of the Art Work under this Agreement. All activities
performed under this Agreement shall be coordinated with this person.
12. NOTICES
12.1 All notices, demands, requests or approvals, including any change in
mailing address to be given under the terms of this Agreement shall be given in writing
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided. All notices, demands, requests or
approvals from Artist to City shall be addressed to City at:
Tim Netherton, Library Services Director
City of Newport Beach
1000 Avocado Avenue
Newport Beach, CA 92660
12.2 All notices, demands, requests or approvals from City to Artist shall be
addressed to Artist at:
David Boyer Page 5
David Boyer,
15150 Sheri K Bar Lane,
Reno, NV 89521
13. STANDARD PROVISIONS
13.1 Recitals. City and Artist acknowledge that the above Recitals are true and
correct and are hereby incorporated by reference into this Agreement.
13.2 Compliance with all Laws. Artist shall, at its own cost and expense, comply
with all statutes, ordinances, regulations and requirements of all governmental entities,
including federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all Art Work prepared by Artist shall conform to applicable City, county, state
and federal laws, rules, regulations and permit requirements and be subject to approval
of the Project Administrator.
13.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
13.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
13.5 Conflicts or Inconsistencies.. In the event there are any conflicts or
inconsistencies between this Agreement and the Exhibit to this Agreement, the terms of
this Agreement shall govern.
13.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
13.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Artist and City and approved as to form by the City
Attorney.
13.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
13.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
David Boyer Page 6
13.10 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
13.11 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
13.12 Authority to Enter Into Agreement. Artist warrants that Artist is the owner of
the Art Work and has all rights and permissions to lend the Art Work to City for public
exhibition and to enter into this Agreement. City warrants that it is duly authorized to enter
into this Agreement and perform its obligations hereunder, and has received all necessary
third party consents and approvals to perform such obligations.
[SIGNATURES ON NEXT PAGE]
David Boyer Page 7
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTO NEY'S OFFICE a California municipal corporation
Date: /0 2 _ Date: IDL�K1v2
A_ By: WIN
Harp WA 101Mi -F Dave iff
,iey City Manager
ATTEST: /h �� ARTIST: David Boyer
Date: V
Date:
By: D ` VO/► By:�fssz.—
Leilani I. Brown David Boyer
City Clerk
ATTAC
it A:
[END OF SIGNATURES]
Description of Art Work
David Boyer Page 8
EXHIBIT A
DESCRIPTION OF ART WORK
ARTIST NAME: David Boyer
TITLE OF ARTWORK: Getting Your Bearings
Size: 12.5'x 15'x 13'
Weight: 1,900 lbs.
Medium: Steel
Date Completed: 2014
Location: Reno, NV
Honorarium: $3,350
For sale: $65,000
Image:
David Boyer Page A-1