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HomeMy WebLinkAboutC-9797-1 - MOU and Loan Agreement (for Sculpture A Novel Idea)M MEMORANDUM OF UNDERSTANDING AND LOAN AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND NANCY LYNN GARDNER THIS MEMORANDUM OF UNDERSTANDING AND LOAN AGREEMENT ("Agreement") is made on this 1st day of September, 2024, 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 NANCY GARDNER, an individual, whose address is 323 Jasmine, Corona del Mar, California 92625 ("Owner"). RECITALS A. The City desires to mount a temporary public exhibition at the Balboa Branch Library located at 100 East Balboa Boulevard, Newport Beach, California ("Exhibition"), consisting of a certain work titled A NOVEL IDEA ("Art Work") created by artist Craig Gray, a description of which is attached as Exhibit A to this Agreement, and incorporated herein by reference. B. Owner owns the Art Work and desires to lend it to the City for the purpose of the Exhibition. C. Owner 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 Owner mutually agree as follows: 1. TERM AND EXHIBITION PERIOD 1.1 The term of this Agreement shall commence on the Effective Date and shall terminate on 31 st day of August, 2044, unless terminated earlier, or extended by written amendment to this Agreement. 1.2 The Exhibition shall commence from the time of installation of the Art Work at the Location and continue until either party hereto provides written notice to the other party of its decision to end the Exhibition ("Exhibition Period"). 2. NATURE OF SCULPTURE EXHIBITION The Exhibition shall include the Art Work, as further described in Exhibit A. The Exhibition shall take place at the Balboa Branch Library at 100 East Balboa Boulevard, Newport Beach, California ("Location"). 3. HONORARIUM 3.1 Owner desires that the City mount the Exhibition, and in exchange for the City's agreement to mount the Exhibition, Owner agrees to loan the Art Work to the City for free. There shall be no fees, reimbursement, royalties, or expenses of any nature whatsoever due to Owner arising out of this Agreement ("Honorarium"). 3.2 The Owner may make the Art Work available for purchase during the Exhibition Period. Owner agrees that the Art Work shall not be de -installed until the conclusion of the Exhibition Period, unless removed earlier by the City or approved by the City in a prior writing. The City will not request a commission from the sale of the Art Work. 4. SHIPPING OF ART WORK 4.1 City shall cause the Art Work to ship to the Location at a mutually agreed upon date and time. City shall bear all costs associated with transport of the Art Work to the Location. 4.2 If the Owner 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 or may retain possession and charge storage fees. City may obtain and/or maintain insurance on the Art Work during the storage period. The City shall have a lien for the storage fees and any cost of insurance during the storage period against the Art Work. 4.3 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. 4.4 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. Owner shall cause the new owner to be aware of, and bound by, this Agreement. 5. INSTALLATION AND DE -INSTALLATION 5.1 City shall bear the costs of installation and de -installation of the Art Work. 5.2 Should Owner elect to be on Location for installation or de -installation, Owner hereby releases and discharges City from any and all claims of personal injury arising from Owner's participation in the installation or de -installation. Should Owner seek to have a representative or employee on site for installation or de -installation, such person(s) shall sign a separate liability waiver. NANCY LYNN GARDNER Page 2 6. CARE AND SAFEKEEPING 6.1 Owner 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 Owner understands that the City's maintenance crews may use routine watering and gardening equipment around the Art Work to maintain the landscaped areas. Owner 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 Owner, at their sole cost and expense, shall maintain and repair the Art Work during the Exhibition Period. The Owner 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 Owner 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 Owner 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 Owner to act in a timely manner, as set forth herein, the City will be deemed to be acting on behalf of the Owner and at the sole cost and expense of the Owner. 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 Owner. 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. NANCY LYNN GARDNER Page 3 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 Owner 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 Owner 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 Owner 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 Owner. 8.6 Upon execution of this Agreement, Owner acknowledges and agrees that Owner is displaying the Art Work at the Location at Owner's own risk. 9. HOLD HARMLESS AND INDEMNITY PROVISION 9.1 The Owner 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 Owner, or any of Owner's directors, officers, employees, representatives, agents and volunteers. 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require the Ownerto 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. 10. EXHIBITION, ADVERTISING AND USE OF IMAGES 10.1 The City shall have the right to exhibit the Art Work during the Exhibition Period as set forth in this Agreement, and additionally, to reproduce, distribute, and/or or display images or representations of the Art Work in any non-commercial manner whatsoever. The reproduction, representation, distribution and display of the Art Work or materials to promote the City, its services, or to attract visitors or businesses, shall be deemed a non-commercial manner. NANCY LYNN GARDNER Page 4 10.2 It is expected that City may produce publications and other material in connection with the Exhibition. Owner may limit the City's use of Owner's name and/or use of the Art Work in such materials or publications by notifying the City in a prior writing. 10.3 Upon request, City shall provide Owner 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. 11. CONTRACT ADMINISTRATION 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 Owner's Representative. Nancy Gardner shall serve as the Owner'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 Owner to City shall be addressed to City at: 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 Owner shall be addressed to Owner at: Nancy Lynn Gardner 323 Jasmine Corona del Mar, CA 92625 13. POSSESSORY INTEREST TAXES Pursuant to California Revenue and Tax Code Section 107 et seq., a private party entering into a written contract with any local public entity of government whereby a possessory interest subject to property taxation is created could be subject to, and responsible for, the payment of property taxes levied on the interest. Both parties to this Agreement agree that this Agreement is not intended to create a possessory interest or NANCY LYNN GARDNER Page 5 any other interest in land whatsoever. Nevertheless, in the event that a public agency were to determine that a possessory interest subject to property taxation is created by this Agreement, Owner shall be solely responsible for any and all possessory interest taxes. 14. STANDARD PROVISIONS 14.1 Recitals. City and Owner acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 14.2 Compliance with all Laws. Owner 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 Owner shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator. 14.3 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. 14.4 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. 14.5 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. 14.6 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. 14.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Owner and City and approved as to form by the City Attorney. 14.8 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. 14.9 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. NANCY LYNN GARDNER Page 6 14.10 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. 14.11 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. 14.12 Authority to Enter Into Agreement. Owner warrants that Owner 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] NANCY LYNN GARDNER 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 ATTORNEY'S OFFICE a California municip I corporation Date: Date:�2. liU By: A By: A�4ton C. Harp G K. Leung City Attorney%2yW Manager ATTEST: Date: Leflani I. Brown City Clerk FO OWNER: NANCY LYNN GARDNER Am [END OF SIGNATURES] ATTACHMENT: Exhibit A: Description of Art Work NANCY LYNN GARDNER Page 8 EXHIBIT A DESCRIPTION OF ART WORK ARTIST NAME: CRAIG GRAY A Novel Idea Size: 5'x 1'4" x 1'6" Medium: Granite Honorarium: $0.00 Image: P.nLACES FOR THE Pturi.L oCDC NANCY LYNN GARDNER Page A-1