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HomeMy WebLinkAboutC-9894-1 - Donation Agreement for the Great Rescue Memorial PlaqueDONATION AGREEMENT FOR THE GREAT RESCUE MEMORIAL PLAQUE This Donation Agreement ("Agreement") is made and entered into this 27th day of May, 2025 ("Effective Date") by and between Paul Burnett, an individual ("Donor"), and the City of Newport Beach, a California municipal corporation and charter city ("City" or "Donee"). It is hereby agreed by and between the parties as follows: 1. For valuable consideration, the receipt and adequacy of which are hereby acknowledged, Donor shall donate the Plaque, Funding, and Maintenance, each as defined below, to the City, and City hereby agrees to accept the same subject to the terms and conditions set forth in this Agreement. 2. Donor, at their sole cost and expense, shall commission the creation of a plaque memorializing the Great Rescue of 1925, an event that occurred on the morning of June 15, 1925, when the ship "Thelma" went down under approximately forty foot swells near the entrance of Newport Harbor, and four surfers, Duke Kahanamoku, Owen Hale, Gerald Vultree, and William Herwig, using their surf boards, rescued the crew ("Plaque"). 3. The Plaque shall be substantially similar to the design attached hereto as Exhibit A and incorporated herein by this reference. Donor warrants that the Plaque shall be constructed of materials and finish commensurate with industry standards ready for permanent setting in concrete and durable against vandalism, theft, weather, and safe for viewing and interaction by the general public. 4. Donor shall donate two thousand five hundred dollars ($2,500.00) to the City for the purpose of offsetting the City's materials, labor and administrative costs to construct a concrete footing for installation and display of the Plaque, which shall be due and payable to the City prior to commencement of work by the City ("Funding"). 5. The City shall construct concrete footing at Vista Point in the existing Newport Beach Historical Society Kerckhoff Plaque flower bed, located at 101 Dahlia Ave, Corona Del Mar, California 92625 ("Location"). Upon a date and time mutually agreed between the parties, Donor, at their sole cost and expense, shall deliver the Plaque to the City Corporation Yard, located at 592 Superior Ave, Newport Beach, CA 92663. After completion of the footing, City shall provide notice to Donor that the footing is ready for setting of the Plaque. City shall transport the Plaque to the Location and shall set the plaque in the footing with the assistance of Southern California Bronze Co., who shall be retained at Donor's sole cost and expense. Upon installation, all rights, title and interest in the Plaque shall transfer to the City. Donation Agreement — Great Rescue Page 1 retained at Donor's sole cost and expense. Upon installation, all rights, title and interest in the Plaque shall transfer to the City. 6. City agrees to publicly display the Plaque for a minimum of twenty (20) years from the Effective Date of this Agreement ("Term"). If the City elects to move the Plaque during the Term, the City shall, at its sole cost and expense, install the Plaque upon other public property open to the general public in a location that is within slight line of the Newport Harbor entrance channel. 7. For the duration of the Term, Donor agrees, at Donor's sole cost and expense, to periodically clean the Plaque to standards commensurate with the publicly displayed art, plaques and memorials in the vicinity ("Maintenance"). Maintenance shall be limited to environmentally safe soap, water, wax and hand brushing or scrubbing. Donor shall not employ power tools, chemicals, specialized equipment, or engage in construction or other such activities. 8. Donor shall, at Donor's sole cost and expense, execute and deliver such further documents and instruments and shall take and do any and all further acts as may be required for carrying out the intent and purpose of this Agreement. 9. Donor warrants that at the time of delivery of the Plaque, Donor shall have the right to convey good title free of any encumbrance, lien, or the claim of any third person for infringement of patent, trademark, or copyright. Donor shall defend and indemnify the City, its elected officials, agents, officers, representatives and employees against any and all claims, actions, losses, damages, or liability, including but not limited to, attorneys' fees and costs, alleging, or arising out of, title or infringement of patent, trademark, or copyright. In addition to the duties set forth herein, in the event of such claim the City shall allow Donor the option, at Donor's sole cost and expense, to procure the rights necessary for the City to continue displaying the Plaque, or alternatively, subject to the City's approval as to design, to replace or modify the Plaque. 10. City makes no representations regarding whether Donor may claim a tax deduction in connection with this Agreement. Donor is advised to consult with a qualified tax professional in connection therewith. 11. This Agreement shall be binding and inure to the benefit of the parties, their successors, assigns and personal representatives. 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. In the event there are any conflicts or inconsistencies between this Agreement and any attachments hereto, the terms of this Agreement shall govern. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable Donation Agreement — Great Rescue Page 2 by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 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. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 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. [SIGNATURES ON NEXT PAGE] Donation Agreement — Great Rescue Page 3 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: `�r� '2 By: � Ati r n C. Harp '-)1s Attorney s����s ATTEST: — /rP�1n�� Date: 11 !!V, �`tt// is Attachments CITY: CITY OF NEWPORT BEACH, a California municipal corporation Date: 2 -z<- By: O'� V k JoTtap eto Mr DONOR: PAUL BURNETT Date Paul Burnett iIGNATURES] Exhibit A — Depiction of Plaque Donation Agreement — Great Rescue Page 4