HomeMy WebLinkAboutC-4568 - MOU for a Sculpture Park at the Newport Beach Civic CenterOffice of the City Manager
July 24, 2013
Orange County Museum of Art
Attn: Deputy Director for Administration
850 San Clemente
Newport Beach, California 92660
RE: Termination of Memorandum of Understanding between the City of
Newport Beach and the Orange County Museum of Art for a Sculpture Park
at the Newport Beach Civic Center
Dear Mr. Peters:
Please be advised that pursuant to Section VIII(2) of the June 22, 2010 Memorandum of
Understanding ( "MOU ") between the City of Newport Beach ( "City ") and the Orange
County Museum of Art ( "OCMA "), the City is exercising its right to terminate the MOU
thirty (30) calendar days from the date of this letter.
As discussed by the Mayor and Museum Director Dennis Szakacs, this termination is
necessary under the terms of the MOU to allow the City to pursue a temporary sculpture
exhibition along the lines of the city of Palm Desert.
The City appreciates the good work of the Orange County Museum of Art and we very
much look forward to ways to mutually collaborate on the display of the Museum's fine
collection in the Civic Center in the future. Thank you for your ongoing assistance to the
City in identifying potential art for exhibition on City property.
Sincerely,
Lh
Dave Kiff
City Manager
cc: Hon. Mayor & City Council
Cynthia Cowell, Library Services Director
[A08- 00106]- Letter to OCMA Terminating MOU
Newport Beach Civic Center • 100 Civic Center Drive • Post Office Box 1768
Newport Beach, California 92658 -8915 • www.newportbeachca.gov (949) 644 -3000
MEMORANDUM OF UNDERSTANDING
BETWEEN THE CITY OF NEWPORT BEACH AND
THE ORANGE COUNTY MUSEUM OF ART FOR A SCULPTURE PARK
AT THE NEWPORT BEACH CIVIC CENTER
THIS MEMORANDUM OF UNDERSTANDING FOR A SCULPTURE PARK AT
THE NEWPORT BEACH CIVIC CENTER is made and entered into as of
,TlkE 12 2010, by and between the City of Newport Beach, a California municipal
corporation, and the Orange County Museum of Art, a California corporation.
I. RECITALS
1. City is constructing a Civic Center on a 16 -acre parcel located at 1100
Avocado Avenue, Newport Beach, California.
2. City desires to create a Sculpture Park at the Civic Center to display art for
the public's enjoyment.
3. OCMA is a premier visual arts organization in Orange County, California
with a collection that houses more than 2,500 objects and welcomes more than 60,000
visitors annually. OCMA has the necessary expertise to develop a site - specific sculpture
collection in the Sculpture Park.
4. City and OCMA desire to enter into this MOU to collaborate on the
development of the Sculpture Park at the Civic Center.
NOW, THEREFORE, in consideration of the foregoing recitals and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, City and OCMA agree as follows:
II. PURPOSE
The purpose of this MOU is to establish the general framework and
understanding of the Parties as to the development of a Sculpture Park at the Civic
Center. The Parties intend for this MOU to provide an understanding as to their
respective obligations regarding the Sculpture Park with the expectation that the Parties
may need to enter into future agreements to fully effectuate the intent of the Parties and
to implement a comprehensive plan for the development of a Sculpture Park.
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III. DEFINITIONS
For the purposes of this MOU the following words and phrases shall have the
following meanings:
1. "Arts Commission" shall mean the City of Newport Beach Arts
Commission.
2. "Artwork" shall mean pieces of art created, acquired or owned by OCMA
and proposed for display either on a permanent, temporary or long term loan basis in
the Sculpture Park. 'Permanent Artwork" shall mean Artwork accepted and owned by
City, while 'Temporary Artwork" shall mean Artwork that is loaned to City for display in
the Sculpture Park on a temporary basis but remains under the ownership of OCMA.
3. "City" shall mean the City of Newport Beach, California.
4. "City Attorney" shall mean the City Attorney of the City of Newport Beach.
5. "City Council' shall mean the Newport Beach City Council.
6. "City Manager" shall mean the City Manager of the City of Newport Beach.
7. "Civic Center" shall mean the civic building proposed to be constructed by
the City at 1100 Avocado Avenue, Newport Beach, California.
8. "Indemnified Parties" shall mean the City and its elected officials,
employees, agents, contractors, subcontractors and volunteers.
9. WOU" shall mean this Memorandum of Understanding Between the City
of Newport Beach and the Orange County Museum of Art for a Sculpture Park at the
Newport Beach Civic Center.
10. "OCMA" shall mean the Orange County Museum of Art.
11. "Party" or 'Parties" shall mean the City or OCMA individually or
collectively, respectively.
12. "Sculpture Park" shall mean the outdoor art exhibition space provided by
the City on a portion of the 16 -acre parcel that houses the Civic Center.
IV. CITY'S RESPONSIBILITIES
City shall do the following:
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I . Provide an adequate outdoor area at the Civic Center for a Sculpture Park
and permit OCMA to display City- approved Artwork within the Sculpture Park. The
location and layout of the Sculpture Park will be generally as depicted in the attached
Exhibit "A" which is incorporated by reference herein.
2. Notify OCMA of construction progress of the Civic Center, including delays
in construction, to allow OCMA to accurately time fabrication, shipping and delivery of
Artwork for the Sculpture Park.
3. Recognize OCMA's contribution when showing or reproducing Artwork
originating from OCMA in the Sculpture Park by posting a plaque or plaques within the
Sculpture Park.
4. Accept ownership, insurance and maintenance responsibilities for
Permanent Artwork and insurance and maintenance responsibilities for Temporary
Artwork provided by OCMA and displayed in the Sculpture Park. The City's insurance
will be in addition to, and not in lieu of, OCMA's insurance policy for the Temporary
Artwork.
V. OCMA'S RESPONSIBILITIES
OCMA shall do the following:
1. OCMA shall provide at least one piece of Artwork for the Sculpture Park
every two (2) years commencing from the execution of this MOU. The Artwork may be
Permanent Artwork in the form an original commission, or an acquisition by OCMA of an
existing piece. OCMA may also satisfy the Artwork requirement by providing the City
with Temporary Artwork on long term loan from OCMA's existing collection in which
case, the parties agree that OCMA shall retain ownership of such Artwork. In addition
to providing the Artwork, from time -to -time OCMA shall provide Temporary Artwork for
display within the Sculpture Park. The first piece of Temporary Artwork shall be
provided to the City prior to or concurrent with the grand opening of the Civic Center.
2. OCMA shall take the lead for seeking funding and collecting donations to
create or obtain the Artwork under this MOU. OCMA is not entitled to, and shall not
seek, reimbursement from City for the Artwork.
3. OCMA agrees and understands that the Artwork must be durable, taking
into consideration that the Sculpture Park will be an unsecured public space that may
be exposed to elements such as weather, temperature variation, and will be subject to
human touch and will take this into consideration when proposing Artwork so that
foreseeable exposure to the elements and general wear and tear will cause the Artwork
to experience only minor damage and will not cause the Artwork to fall below an
acceptable standard of display.
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4. OCMA shall comply with City's materials guidelines and safety criteria for
the Artwork as embodied in the adopted policies of the City Council. City will provide
OCMA with copies of the applicable policies upon execution of this MOU by all Parties.
5. OCMA covenants to City that the design of the Artwork and all Artwork
produced, acquired, and /or provided by OCMA pursuant to this MOU will be original and
will not infringe on any third - party's copyright rights or other intellectual property rights.
6. OCMA covenants to City that all Artwork produced, acquired, and /or
provided by OCMA pursuant to this MOU will be free and clear of all liens related to any
work performed by OCMA or its employees, volunteers, contractors or artists.
7. OCMA covenants that all Artwork under this MOU will be free of defects in
workmanship or materials for a period of twelve months after final acceptance by City.
The City's right to enforce this covenant is conditional, and shall be voided by the failure
of City to maintain the Artwork in accordance with maintenance guidelines provided by
OCMA. OCMA further agrees to provide copies of, and to the extent that it is able,
assign manufacturers' warranties for all products used in the fabrication and installation
of the Artwork to City. Artwork that predates this MOU shall, to the extent feasible, be
free of defects.
8. OCMA shall not make any duplicates of any Artwork accepted by City for
the Sculpture Park, nor shall OCMA grant permission to others to do so except with the
prior written consent of City. OCMA shall credit City when showing or reproducing
Artwork installed in the Sculpture Park.
9. OCMA shall not sell or reproduce the design of any Permanent Artwork
without the prior written consent of the City.
VI. ARTWORK REVIEW PROCESS
1. OCMA shall submit all Artwork to the Arts Commission for its review and
written recommendation to approve or reject the Artwork. At the time of submission to
the Arts Commission, OCMA shall notify the Arts Commission in writing whether a
particular piece of Artwork is designed to be temporarily or permanently displayed in the
Sculpture Park. The submittal from OCMA shall include OCMA's proposed location
within the Sculpture Park for the Artwork, the installation requirements, transportation
costs and the length of display and allocation of removal costs for Temporary Artwork.
The Arts Commission shall review the Artwork and make its written recommendation to
the City Council.
2. Upon receipt of the Arts Commission's written recommendation, the City
Council shall have sole and absolute discretion to determine if the Artwork is acceptable
for installation, whether on a permanent or temporary basis in the Sculpture Park. The
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City shall notify OCMA in writing of the City Council's decision to accept or reject the
proposed Artwork.
3. OCMA shall work with City to locate appropriate sites for the Artwork
within the Sculpture Park. OCMA understands that the proposed location of Artwork is
subject to a feasibility review by City that will consider site foundation conditions, view
plane, weight, size, and potential damage to existing Civic Center improvements during
placement, relocation, or removal operations.
4. In addition to the Artwork, City may from time -to -time procure art from
third - parties for the Sculpture Park. City shall refer all third -party art proposed to be
included within the Sculpture Park to OCMA for its review. OCMA shall review the third -
party art within thirty (30) calendar days and make a written recommendation to either
include or exclude the third -party art within the Sculpture Park. If OCMA determines the
third -party art is not appropriate for inclusion within the Sculpture Park the City shall not
install the art within the Sculpture Park. If OCMA recommends inclusion of the third -
party art within the Sculpture Park OCMA shall forward its written recommendation to
the Arts Commission pursuant to subsection 1 of Section VI and the procedure for
Artwork review shall be followed.
VII. ARTWORK INSTALLATION
1. City will prepare, at its own cost, sites meeting the requirements set by
OCMA within the Sculpture Park for the installation of approved Artwork. The extent of
the site preparation will vary depending upon the Artwork proposed and whether the
Artwork is approved to be installed on a permanent or temporary basis.
2. Thirty (30) calendar days prior to the date of installation of a piece of
Artwork, OCMA shall supply the City with a maintenance manual describing anticipated
maintenance requirements, manufacturers' preservation suggestions and a
recommended maintenance schedule.
3. At the time of installation of a piece of Permanent Artwork OCMA shall gift,
free of charge, the Permanent Artwork to the City in a form acceptable to the City
Attorney. OCMA shall at all times retain ownership and insurance for all Temporary
Artwork installed within the Sculpture Park.
4. The Parties shall execute a license agreement, in a form substantially
similar to Exhibit "B" incorporated herein authorizing OCMA to enter upon the Civic
Center site to design Artwork and assist City with Artwork installation within the
Sculpture Park. The City Council authorizes the City Manager to execute the license
agreement once approved to form by the City Attorney.
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VIII. TERM AND TERMINATION
1. Term. The term of this MOU shall commence upon the execution of this
MOU by City and OCMA and shall terminate on June 1, 2015, unless earlier terminated
as provided in this MOU.
2. Grounds for Termination. Either Party may, by written notice to the other
Party, terminate the whole or any part of this MOU with or without cause, by giving thirty
(30) calendar days written notice to the other Party specifying the effective termination
date thereof.
3. Effect of Termination. If this MOU is terminated as provided herein, City
will require OCMA to provide all finished Artwork and related documents and other
information of any kind prepared by OCMA with funds derived from grants or from the
City. OCMA shall reimburse City any funds received from City or from grants obtained
on behalf of City related to unfinished Artwork. OCMA shall be required to provide such
Artwork, reimbursement and other information within fifteen (15) calendar days of the
termination. The Permanent Artwork in the Sculpture Park shall remain in the
ownership of the City, while the Temporary Artwork and the Artwork on long term loan
shall be removed by OCMA, at their expense, within thirty (30) calendar days of the
City's written request.
IX. MISCELLANEOUS PROVISIONS
1. Cooperation: Further Acts. The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as may be
necessary, appropriate or convenient to attain the purposes of this MOU.
2. Incorporation of Recitals. The Parties agree that the recitals provided in
this MOU are true and correct and are incorporated into the substantive portion of this
MOU.
3. Grant Funding. The Parties will work cooperatively together to secure
grant funding for the Sculpture Park. The Parties have submitted a jointly executed
application to the National Endowment for the Arts date March 15, 2010. If the grant is
awarded, the City and OCMA shall utilize the grant funds in the manner described in the
grant application and supplemental documentation submitted by the Parties to the
National Endowment for the Arts regarding the grant.
4. Indemni .
4.1 To the fullest extent permitted by law, OCMA and its successors or
assigns, agrees to indemnify, defend and hold harmless the Indemnified Parties from
and against any and all claims (including, without limitation, claims for bodily injury,
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death, mechanics liens, or damage to property), demands, obligations, damages,
actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including, without limitation, attorneys' fees, disbursements, costs of
litigation, investigation, appeal, expert witness fees and court costs) of every kind and
nature whatsoever, which arise from OCMA its contractors', artists', agents',
employees', invitees', and their respective employees actions and Artwork under this
MOU. The foregoing shall not serve as authority for OCMA or its counsel to settle any
Claim without the prior written consent of City.
Notwithstanding the foregoing, nothing herein shall be construed to require
OCMA to indemnify the Indemnified Parties from any claim arising from the gross
negligence or willful misconduct of the Indemnified Parties. 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 MOU.
4.2 City shall indemnify, defend and hold harmless OCMA from and
against any and all claims (including, without limitation, claims for bodily injury, death, or
damage to property), demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including, without
limitation, attorneys' fees, disbursements, costs of litigation, investigation, appeal,
expert witness fees and court costs) of every kind and nature whatsoever, which arise
from the City's ownership of the Permanent Artwork.
Notwithstanding the foregoing, nothing herein shall be construed to require City
to indemnify OCMA from any claim arising from the negligence or misconduct of OCMA
or relating to a manufacturing defect in the Permanent Artwork. 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 MOU.
5. Insurance.
5.1 Time for Compliance. OCMA shall not commence work under this
MOU until it has provided evidence satisfactory to the City that it has secured all
insurance required under this section. In addition, OCMA shall not allow any artist to
commence work on any piece of Artwork until it has provided evidence satisfactory to
the City that the artist has secured all insurance required under this section.
5.2 Minimum Requirements. OCMA shall, at its expense, procure and
maintain for the duration of the MOU insurance against claims for injuries to persons or
damage to property which may arise from or in connection with the performance of the
MOU by OCMA, its artists, agents, representatives, employees or subcontractors.
OCMA shall also require all of its artists to procure and maintain the same insurance for
the duration of the MOU. Such insurance shall meet at least the following minimum
levels of coverage:
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(A) Minimum Scope of Insurance. Coverage shall be at least as
broad as the latest version of the following: (1) General Liability: Commercial General
Liability coverage; (2) Automobile Liability: Business Auto Coverage (any auto); and (3)
Workers' Compensation.
(B) Minimum Limits of Insurance. OCMA shall maintain limits no
less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal
injury and property damage. If Commercial General Liability Insurance or other form
with general aggregate limit is used, either the general aggregate limit shall apply
separately to this MOU or the general aggregate limit shall be twice the required
occurrence limit; and (2) Automobile Liability: $1,000,000 per accident for bodily injury
and property damage.
5.3 Insurance Endorsements. The insurance policies shall contain the
following provisions, or OCMA shall provide endorsements on forms supplied or
approved by the City to add the following provisions to the insurance policies:
(A) General Liability. The general liability policy shall be
endorsed to state that: (1) the City, its directors, officials, officers, employees, agents
and volunteers shall be covered as additional insured with respect to the Artwork during
such time as it belongs to OCMA or operations performed by or on behalf of the OCMA,
including materials, parts or equipment furnished in connection with such Artwork; and
(2) the insurance coverage shall be primary insurance as respects the City, its directors,
officials, officers, employees, agents and volunteers, or if excess, shall stand in an
unbroken chain of coverage excess of the OCMA's scheduled underlying coverage.
Any insurance or self- insurance maintained by the City, its directors, officials, officers,
employees, agents and volunteers shall be excess of the OCMA's insurance and shall
not be called upon to contribute with it in any way.
(B) All Coverages. Each insurance policy required by this MOU
shall be endorsed to state that: (1) coverage shall not be suspended, voided, reduced
or canceled except after thirty days prior written notice by certified mail, return receipt
requested, has been given to the City; and (2) any failure to comply with reporting or
other provisions of the policies, including breaches of warranties, shall not affect
coverage provided to the City, its directors, officials, officers, employees, agents and
volunteers.
5.4 Separation of Insureds: No Special Limitations. All insurance
required by this section shall contain standard separation of insureds provisions. In
addition, such insurance shall not contain any special limitations on the scope of
protection afforded to the City, its directors, officials, officers, employees, agents and
volunteers.
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5.5 Deductibles and Self- Insurance Retentions. Any deductibles or
self- insured retentions must be declared to and approved by the City. OCMA shall
guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate
such deductibles or self- insured retentions as respects the City, its directors, officials,
officers, employees, agents and volunteers; or (2) the OCMA shall procure a bond
guaranteeing payment of losses and related investigation costs, claims and
administrative and defense expenses.
5.6 Acceptability of Insurers. Insurance is to be placed with insurers
with a current A.M. Best's rating no less than A:VIII, licensed to do business in
California, and satisfactory to the City.
5.7 Verification of Coverage. OCMA shall furnish City with original
certificates of insurance and endorsements effecting coverage required by this MOU on
forms satisfactory to the City. The certificates and endorsements for each insurance
policy shall be signed by a person authorized by that insurer to bind coverage on its
behalf, and shall be on forms provided by the City if requested. All certificates and
endorsements must be received and approved by the City before work commences.
The City reserves the right to require complete, certified copies of all required insurance
policies, at any time.
5.8 City's Insurance Requirements. As related to subsection 4 of
Section IV above, City shall maintain Fine Arts Insurance or other form of insurance
acceptable to OCMA relating to Artwork on long term loan and Temporary Artwork
displayed in the Sculpture Park in an amount equal to or greater than the appraised
value of the Artwork or Artworks as determined by OCMA at the time of installation.
The Artwork will be insured and /or indemnified against standard risks of physical loss or
damage while on location in the Sculpture Park. City shall furnish OCMA with original
certificates of insurance and endorsements effective coverage required by this MOU on
forms satisfactory to OCMA naming OCMA as an additional insured.
6. Notices. Any notice, request, direction, demand, consent, waiver,
approval or other communication required or permitted to be given hereunder shall be in
writing and shall be personally delivered or sent by registered or certified mail, postage
prepaid, return receipt requested, or overnight courier, or electronic transmission as
defined below.
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Notices or other communications shall be addressed as follows:
To OCMA: Orange County Museum of Art
Attention: Deputy Director for Administration
850 San Clemente
Newport Beach, California 92660
To City: City of Newport Beach
Attention: City Manager
Attention: Library Director
3300 Newport Blvd.
Newport Beach, California 92658
Any Party may change its information for notice purposes at any time by
providing written notice to the other Party.
Communications shall be deemed effective upon (i) the date of delivery to the
address of the Party to receive such notice, if delivered personally or by messenger or
overnight courier as shown by the addressee's return receipt if by certified mail, and as
confirmed by the courier service if by courier; provided, however, that if such actual
delivery occurs after 5:00 p.m. (local time where received) or on a non - business day,
then such notice or demand so made shall be deemed effective on the first business
day following the day of actual delivery (ii) three business days after the date of posting
by the United States Post Office if by mail; or (iii) when received by recipient if given by
facsimile or e-mail (collectively, "electronic transmission "), as evidenced by written
acknowledgment from the recipient of the electronic transmission, for example by return
e -mail or by answerback if by facsimile.
7. Successors and Assigns. This MOU shall bind and inure to the benefit of
the Parties and their respective successors and assigns; provided, however, that OCMA
shall not have the right to assign its rights or obligations hereunder without the prior
written consent of City, which may be granted or withheld in City's sole and absolute
discretion.
8. Interpretation. All section headings are inserted for convenience only and
shall have no effect on the construction or interpretation of this MOU. Each Party
acknowledges that such Party and its counsel, after negotiation and consultation, have
reviewed and revised this MOU. As such, the terms of this MOU shall be fairly
construed and the usual rule of construction, to the effect that any ambiguities herein
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should be resolved against the drafting Party, shall not be employed in the interpretation
of this MOU.
9. Partial Invalidity. Each and every provision of this MOU is, and shall be
construed to be, a separate and independent covenant and agreement. If any provision
of this MOU, or the application thereof, shall to any extent be held to be invalid or
unenforceable, the remainder of this MOU, or the application of such provision to
circumstances other than those to which it is invalid or unenforceable, shall not be
affected hereby, and each provision of this MOU shall be valid and shall be enforced to
the extent permitted by law.
10. Applicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this MOU. Venue shall be in Orange County,
California.
11. Modifications. All modifications of, or amendments to, this MOU shall be
in writing and signed by the Parties.
12. No Partnership. Nothing contained in this MOU shall be deemed or
construed to create a partnership, tenancy in common, joint tenancy, joint employer
liability, joint venture or co- ownership by or between City and OCMA. Subject to its
compliance with the terms and conditions of this MOU, OCMA shall be free to determine
its own policies and practices in the conduct of its business and activities concerning the
Artwork contemplated under this MOU.
13. Prior Agreements. This MOU and all exhibits, if any, thereto contain all of
the agreements of the Parties with respect to the transaction contemplated hereby, and
no prior agreements or understandings pertaining to any such transaction shall be
effective for any purpose and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No oral agreement or implied covenant
shall be held to vary the provisions herein.
14. Other Artwork; Removal of Artwork. Subject to the terms of this MOU, the
City shall have the ability to contract with other parties to provide art for the Sculpture
Park. City shall have sole and absolute discretion to remove or relocate a piece of
Permanent Artwork from the Sculpture Park.
15. No Attorneys' Fees. In the event of a dispute under this MOU the
prevailing Party shall not be entitled to attorneys' fees.
16. Counterparts. This MOU may be executed in any number of counterparts,
each of which, when executed and delivered, shall be deemed to be an original, and all
of which, taken together, shall be deemed to be one and the same instrument.
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[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties have executed this MOU as of the date .400
first above written.
Approved as to Form:
Officokof tbe<ty 4ttomey
David R. Hunt, City Attorney
City of Newport Beach
wulldlo
Dated:
THE Tf Of � T BEACH
By: Keith C ry, Mayor
Dated:
City of Newport Beach
Leilani Brown
g City Clerk
City of Newport Beach
COUNTY MUSEUM OF ART
0
Title:
Dated:
ORANGE COUNTY MUSEUM OF ART
By: _ eA t�...
Name:
Title:
Dated:
[END OF SIGNATURES]
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Exhibit "A"
Sculpture Park Location & Lavout
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Exhibit "B"
License Agreement
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LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND THE
ORANGE COUNTY MUSEUM OF ART FOR A SCULPTURE PARK AT THE
NEWPORT BEACH CIVIC CENTER
This Civic Center Sculpture Park License Agreement ( "Agreement "), dated this
day of 2010, is made by and between the City of Newport
Beach, a California Municipal Corporation ( "City "), and the Orange County Museum of
Art, a California Corporation ( "OCMA ").
RECITALS
1. City is constructing a Civic Center on a 16 -acre parcel located at 1100
Avocado Avenue, Newport Beach, California.
2. City desires to create a Sculpture Park at the Civic Center to display art for
the public's enjoyment.
3. OCMA is a premier visual arts organization in Orange County, California
with a collection that houses more than 2,500 objects and welcomes more than 60,000
visitors annually. OCMA has the necessary expertise to develop a site - specific sculpture
collection in the Sculpture Park.
4. City desires to permit OCMA to install Artwork on the Civic Center Property
in furtherance of the development of the Sculpture Park.
5. Unless otherwise defined herein, the parties desire to use the defined
terms included within the Memorandum of Understanding Between the City of Newport
Beach and the Orange County Museum of Art for a Sculpture Park at the Newport Beach
Civic Center ( "MOU ") for this Agreement. The MOU is hereby incorporated by reference
into this Agreement.
TERMS
1. Recitals
The Recitals set forth above are true and correct, are a material part of this
Agreement, and are incorporated herein by this reference.
2. License to Enter Civic Center
2.1 The City hereby grants OCMA a license to enter upon the Civic
Center site to design Artwork and assist City with Artwork
installation within the Sculpture Park pursuant to the terms of the
MOU.
2.2 [Reserved]
2.3 The Sculpture Park location is generally depicted in Exhibit "A" to
the MOU, which is hereby incorporated by reference into this
Agreement.
3. Changes and Modifications
Changes and modifications to this Agreement shall be performed pursuant to
written agreement by the parties.
4. Notices
Any notice, request, direction, demand, consent, waiver, approval or other
communication required or permitted to be given hereunder shall be in writing and shall
be personally delivered or sent by registered or certified mail, postage prepaid, return
receipt requested, or overnight courier, or electronic transmission as defined below.
Notices or other communications shall be addressed as follows:
To OCMA: Orange County Museum of Art
Attention: Deputy Director for Administration
850 San Clemente
Newport Beach, California 92660
To City: City of Newport Beach
Attention: City Manager
Attention: Library Director
3300 Newport Blvd.
Newport Beach, California 92658
Either party may change its information for notice purposes at any time by
providing written notice to the other party.
Communications ,shall be deemed effective upon (i) the date of delivery to the
address of the party to receive such notice, if delivered personally or by messenger or
overnight courier as shown by the addressee's return receipt if by certified mail, and as
confirmed by the courier service if by courier; provided, however, that if such actual
delivery occurs after 5:00 p.m. (local time where received) or on a non - business day,
then such notice or demand so made shall be deemed effective on the first business
day following the day of actual delivery (ii) three (3) business days after the date of
posting by the United States Post Office if by mail; or (iii) when received by recipient if
given by facsimile or e-mail (collectively, "electronic transmission "), as evidenced by
written acknowledgment from the recipient of the electronic transmission, for example
by return e-mail or by answerback if by facsimile.
2
5. Indemnity
To the fullest extent permitted by law, OCMA and its successors or assigns,
agrees to indemnify, defend and hold harmless the Indemnified Parties from and
against any and all claims (including, without limitation, claims for bodily injury, death,
mechanics liens, or damage to property), demands, obligations, damages, actions,
causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including, without limitation, attorneys' fees, disbursements, costs of
litigation, investigation, appeal, expert witness fees and court costs) of every kind and
nature whatsoever, which arise from OCMA its contractors', artists', agents',
employees', invitees', and their respective employees actions and Artwork under this
Agreement. The foregoing shall not serve as authority for OCMA or its counsel to settle
any Claim without the prior written consent of City.
Notwithstanding the foregoing, nothing herein shall be construed to require
OCMA to indemnify the Indemnified Parties from any claim arising from the gross
negligence or willful misconduct of the Indemnified Parties. 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.
6. Conflict of Interest
OCMA and its employees may be subject to the provisions of the California
Political Reform Act of 1974 ( "Act "), which (a) requires such persons to disclose any
financial interest that may foreseeably be materially affected by the work performed
under this Agreement, and (b) prohibits such persons from making, or participating in
making, decisions that will foreseeably financially affect such interest. If subject to the
Act, OCMA shall conform to all requirements of the Act. Failure to do so constitutes a
material breach and is grounds for immediate termination of this Agreement by City.
OCMA shall indemnify and hold harmless City for any and all claims for damages
resulting from OCMA's violation of this Section.
7. Termination
Notwithstanding the term of this Agreement, this Agreement may be terminated
during the term or any extended term in the following manner:
7.1 By City: In accordance with the provisions of Section 6 or, at any
time, without cause upon the giving of thirty (30) days written notice
of termination to OCMA; or
7.2 By OCMA: At any time, for cause upon the giving of thirty (30) days
written notice of termination to City; or
7.3 By mutual consent: At any time, by mutual written consent of both
parties.
3
8. Integrated Agreement
With the exception of the MOU, 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.
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.
10. Independent Relationship
It is understood that OCMA is not an agent or employee of City. Nothing in this
Agreement shall be deemed to constitute approval for OCMA or any of OCMA's
employees or agents, to be the agents or employees of City.
11. Cooperation
OCMA agrees to work closely and cooperate fully with City and any other
agencies that may have jurisdiction or interest in the work to be performed. City agrees
to cooperate with the OCMA in regards to this Agreement.
12. City Policy
OCMA shall discuss and review all matters relating to this Agreement with City
representatives in advance of all critical decision points to ensure the actions taken
pursuant to this Agreement proceed in a manner consistent with City goals and policies.
13. Prohibition against Assignment and Transfer
This Agreement shall not be assigned, transferred contracted or subcontracted
out without the prior written approval of City which approval may be withheld in the
City's sole discretion.
[SIGNATURES ON NEXT PAGE]
4
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Approved as to Form:
Office of the City Attorney
David R. Hunt, City Attorney
City of Newport Beach
Dated:
THE CITY OF NEWPORT BEACH
By: Dave Kiff, City Manager
Dated:
City of Newport Beach
Attest:
Leilani Brown
City Clerk
City of Newport Beach
ORANGE COUNTY MUSEUM OF ART
By:
Name:
Title:
Dated:
ORANGE COUNTY MUSEUM OF ART
By:
Name:
Title:
Dated:
[END OF SIGNATURES]
3
�a�WPOQ� == CITY OF
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City Council Staff Report Agenda Item No. 15
July 23, 2013
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Library Services
Cynthia Cowell, Library Services Director
949- 717 -3810, ccowell @newportbeachcagoov
PREPARED BY: Cynthia Cowell
APPROVED:l�
TITLE: Sculpture in the Civic Center Park, OC Museum of Art MOU
ABSTRACT:
The City Arts Commission wishes to mount a temporary exhibit of loaned sculpture in
the Civic Center Park, the opening of which is desired to coincide with the first
anniversary of the opening of the Civic Center. The exhibit would run from May, 2014
through April, 2017. To allow this exhibit to occur, the City and the Orange County
Museum of Art have come to the mutual conclusion that a previous agreement for,
among other things, sculpture management, can end.
RECOMMENDATION:
1. Authorize the staff and members of the Arts Commission to move forward to
implement a temporary sculpture exhibit with a maximum of ten sculptures in year
one and an additional ten sculptures in year two. Sculptures exhibited in year one
would be de- installed in 2016. Sculptures added in 2015 would be de- installed in
2017. Total project time would be from July 2013 through April 2017.
2. Authorize the City Manager to send a letter to the Orange County Museum of Art
ending a June 2010 Memorandum of Understanding (MOU).
3. Adopt Budget Amendment appropriating up to $125,000 for the first year of the
temporary sculpture exhibit.
FUNDING REQUIREMENTS:
Funds in the amount of $125,000 would be transferred from General Fund Balance to a
new project budget. Funding in the same amount will be needed for year two.
1
Sculpture In The Civic Center Park, OC Museum of Art MOU
July 23, 2013
Page 2
DISCUSSION:
The Newport Beach Civic Center Park, designed by renowned landscape architectural
firm Peter Walker and Partners (PWP), is rapidly developing into a destination for
visitors to Newport Beach and a place where residents gather for civic events or to
enjoy a leisurely walk or visit to the dog park. The entire Civic Center Park was
designed to enhance quality of life through both active and passive experiences. PWP
included an Art Master Plan within the Park, which identified numerous spots within the
site where art, primarily sculpture, might be exhibited (See Exhibit A — Art Master Plan)
The City Arts Commission has been actively involved in pursuing appropriate pieces for
display and has recently been successful in placing "Uprooted II" by local artist Sarah
Wilkinson just outside the City Council Chamber.
The Arts Commission now wishes to proceed with a temporary sculpture exhibit of 18
pieces. The pieces would be solicited through a general call for artists. A consultant to
manage the project would be engaged. Working with the Art in Public Places sub-
committee of the Arts Commission, the consultant would manage the entire project,
from the initial call for submissions, through vetting the submissions for compliance with
Commission and City requirements, to the installation and de- installation of the pieces.
Staff recommends that 10 pieces would be a more easily managed first effort
commencing in August, 2013, given the extremely tight timeline proposed by the Arts
Commission. Those pieces would remain on display from May, 2014 through April,
2016. Further, staff recommends that 10 additional pieces could be selected for
inclusion in a second year project with installation completed in May of 2015, running
through April, 2017. Thus, in May of 2015, there could be 20 pieces on display. If the
concept is successful, rotating exhibits could be employed as a means of freshening the
sculpture collection while working to acquire permanent pieces.
Should the City Council approve the project on July 23, the project timeline calls for a
consultant to be selected by the end of August. The consultant would then begin
creating various forms including: master calendar; list of potential artists and art
registries; and the call for artists entry. All entries would be received by November and
vetted for inclusion in the project. The proposed pieces would be presented to the Arts
Commission at the November meeting, with those selected being forwarded to City
Council for approval in either November or December. In December, all entrants would
be notified, whether selected or not, to move forward in the process. By January, the
site selection of all pieces would be completed and Public Works staff would begin work
on construction of the pads for sculpture installation. The consultant would develop and
implement the media plan during February and March. In April, the sculptures would
begin to arrive for placement, and the exhibit would open on Saturday, May 3, 2014.
2
Sculpture in the Civic Center Park, OC Museum of Art MOU
July 23, 2013
Page 3
Staff believes that a budget of $125,000 should be sufficient to handle the installation of
10 sculptures during year one, to be installed by May, 2014. Additional funding will be
necessary to fund year two, beginning in July, 2014. Installation of the second year
project would be completed by May, 2015.
Well before the Civic Center was complete (in June 2010), the City and the Orange
County Museum of Art entered into a Memorandum of Understanding (MOU) that
anticipated a joint role between the City and OCMA to manage art — primarily sculpture
— in the Civic Center and in the park. Three years later, both parties think that the
proposed sculpture exhibit is a good path, and one that does not require the
management assistance of OCMA nor a financial or physical art commitment from
them. Therefore, the MOU is not necessary.
ENVIRONMENTAL REVIEW:
Not a Proiect CEQA Lanauaae
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will
not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
has no potential for resulting in physical change to the environment, directly or
indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Submitted by
`7l2C�c.
thia Cowell
Director of Library Services
Attachments: A. Art Master Plan prepared by PWP (Map of potential sites for the
installation of public art at the Civic Center Park)
B. Draft Letter regarding the City-OCMA MOU.
3
C
D
E.
F.
G.
H.
Sculpture in the Civic Center Park,
OC Museum of Art MOU
July 23, 2013
Page 4
Budget Amendment No. 14BA -006
Request for Approval of the Sculpture in the Park
Invitational Exhibition
Budget for 18 Sculptures
The Inherent Magic of Newport Beach
Sculpture in the Park Invitational Exhibition (Time Line)
Sculpture in the Park Call for Entries 2014/2016 Newport Beach
Invitational Exhibition
Draft for Job description Public Art Coordinator /Site Manager
ATTACHMENT A
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ART MASTER PLAN
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July 24, 2013
ATTACHMENT B
CITY OF NEWPORT BEACH
Orange County Museum of Art
Attn: Deputy Director for Administration
850 San Clemente
Newport Beach, California 92660
Office of the City Manager
RE: Termination of Memorandum of Understanding between the City of
Newport Beach and the Orange County Museum of Art for a Sculpture Park
at the Newport Beach Civic Center
Dear Mr. Peters:
Please be advised that pursuant to Section V11 1(2) of the June 22, 2010 Memorandum of
Understanding ( "MOU ") between the City of Newport Beach ( "City ") and the Orange
County Museum of Art ( "OCMA "), the City is exercising its right to terminate the MOU
thirty (30) calendar days from the date of this letter.
As discussed by the Mayor and Museum Director Dennis Szakacs, this termination is
necessary under the terms of the MOU to allow the City to pursue a temporary sculpture
exhibition along the lines of the city of Palm Desert.
The City appreciates the good work of the Orange County Museum of Art and we very
much look forward to ways to mutually collaborate on the display of the Museum's fine
collection in the Civic Center in the future. Thank you for your ongoing assistance to the
City in identifying potential art for exhibition on City property.
Sincerely,
Dave Kiff
City Manager
cc: Hon. Mayor & City Council
Cynthia Cowell, Library Services Director
(A08- 001061 -Letter to OCMA Terminating MOU
Newport Beach Civic Center • 100 Civic Center Drive • Post Office Box 1768
Newport Beach, California 92658 -8915 • www.newportbeachca.gov (949) 644 -3000 6
City of Newport Beach NO. BA- 14BA -006
ATTACHMENT C
BUDGET AMENDMENT
2013 -14 AMOUNT: $125,000.00
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates Increase in Budgetary Fund Balance
Increase Expenditure Appropriations AND X Decrease in Budgetary Fund Balance
Transfer Budget Appropriations No effect on Budgetary Fund Balance
SOURCE:
from existing budget appropriations
from additional estimated revenues
PX from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
To appropriate funds from General Fund Reserves to Cultural & Arts for a temporary exhibit of loaned sculpture
in the Civic Center Park. This cost includes consultant services to manage the entire project.
The same amount will be reauired in FY14.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Account Description
010 3605 General Fund - Fund Balance
REVENUE ESTIMATES (3601)
Fund /Division Account
EXPENDITURE APPROPRIATIONS (3603)
Description
Description
Division Number 4002 Cultural & Arts
Account Number 8080 Services- Professional & Technical NOC
Signed:
Signed
Signed:
K
Administrdtive Approval: City
City Council Approval: City Clerk
Amount
Debit Credit
$125,000.00
Automatic
$125,000.00
-7 _ r7 - /3
Date
)IMil
ate
Date
7
ATTACHMENT D
Request for Approval of the Sculpture in the Park
Invitational Exhibition
Project Proposal: Sculpture in the Park Invitational Overview
The Arts Commission's Art in Public Places Ad Hoc Committee's new
Sculpture in the Park Project will be comprised of 18 pieces of
original, high quality sculpture which will be installed throughout the
length of the new Civic Center Park. The sculptures will be on loan to
the city for a two year period starting with an exhibition dedication
celebration of the May 2014 one year Anniversary of the new Civic
Center.
A contracted project Art Coordinator /Site Manager will start the
process of Invitation Call for Entries to artists during September -
November 2013 and will work with the Arts Commission Art in Public
Places Ad Hoc Committee throughout. They will select 18 pieces,
plus 3 alternatives for presentation to the Arts Commission. Upon
approval by the Arts Commission, the selections will be brought
before the City Council for review and approval.
The Artists chosen will receive an honorarium of $2500 and will be
responsible for getting their approved sculpture to the site. All art
must be in compliance with the application guidelines, as well as, City
Policy 1 -11 Requirements for Permanent or Temporary Art
Acquisition.
Fiscal Analysis:
The fiscal impact of artwork honorariums, installation, staffing (Art
Director /Site Manager), stipend for curator, in -house
marketing /publicity, signage and maps, education and docent
materials, opening Artist Reception and insurance will be financed in
the 2013 -2014 fiscal years. The total is projected to be under
$200,000.
0
ATTACHMENT E
Budget for 18 sculptures
Honorarium
Installation for 6 Ig -12 med.
De- installation
Arts Coordinator /site manager
Curator
Opening event
Insurance
earthquake, windloading and structural engineer approval
Media, advertising, docent -edu. materials, banners,
signage etc.
45,000
25,000
18,000
45 -60000
3 -4000
4,500
156,500
??
??
??
Palm Desert uses staff for Arts Coordinator /site manager, city works
dept. for installation de- installation, uses in -house media, adv,
docent -edu. materials, banners, signage etc. and Ins.
They don't use a curator nor have an artist reception.
0
ATTACHMENT F
The Inherent Magic of Newport Beach
`Inherent Magic'
The purpose of The Arts Commission project, Sculpture in the Park Invitational,
is to celebrate our new Civic Center (and its mission of LEED Gold) by using art
to inspire the observer to look at our inherent environment in a different way. We
will be exhibiting loaned, high level sculpture for a period of two years in our new
park, to celebrate the essential, innate magic of Newport Beach -- to observe its
joy, wind, sound, summer, surf, fog, energy, history, maturity and culture, and
aesthetic sophistication. These are permanent elements that can be expressed
in art-- traditionally, abstractly or innovatively and that thrill, delight and amaze.
We wish the observer to reflect on the depth of what is here and how special,
unrepeatable and irreplaceable it is. Art has the great power to set us on our
heels and show us our very own Inherent Magic and what Newport Beach is all
about.
10
ATTACHMENT G
Sculpture in the Park Invitational Exhibition
(Time Line)
July 2013:
• The Arts Commission votes to propose to the City Council, for consideration and approval, an
every- other -year Sculpture in the Park Invitational Exhibition including a contracted project Art
Coordinator /Site Manager.
• City Council votes to approve July 23
August:
• An Art Coordinator /Site Manager is contracted for the project.
Task list description for project Art Coordinator /Site Manager
September:
• Create an open and transparent communication with the Arts Commission and City
• Co- ordinate full time line, plans and concepts with:
Arts Commission
City staff
City manager /asst. manager
Parks and Recreation
City Council
• Confirm budget, adjust time -line
• Coordinate master calendar for all deadline dates and theme
• Create artist's contract and consignment agreement form and send to city attorney for approval
• Establish open communication between artists, colleges, universities, museums and private
collectors
• Create contact list of potential artists and artist registries
• Design Call for Artists Entry form
• Review with Arts Commissioners and staff
• Post Call for Artist Entry on City Web Site and Artist Organization Web Sites
October:
• Develop and organize central selection process
11
• Coordinate with Arts Commission's, Arts in Public Spaces Ad Hoc Committee
• Manage incoming submissions and inquires
• Keep an open communication between artists, colleges, universities, museums and private
collectors
November:
• Close application process, organize /sort final submissions for selection process
• Coordinate with Art in Public Spaces Ad Hoc Committee to meet for selection
• Confirm with Public Works Department of exhibition infrastructure feasibility
• Notify City staff, Newport Beach and Co., Chamber of Commerce, and others who will be
providing free coverage of the event in their publications.
• Meet with Arts Commission's Art in Public Places Ad Hoc Committee panel members for final
selections
• Report to Arts Commissioner and City Council selection approvals
December:
• Send acceptance /rejection letters to artists who have applied
• Start site placement selection
• Examine each proposed entry for durability, environmental impact and safety concerns
• Formulate final decision for best placement and the overall aesthetic look of the exhibition
• Work with Arts Commission's Art in Public Places Ad Hoc Committee for final site placement
selections
• Oversee Public Works sculptor pads /foundations design
• Reserve Community Room for Opening Day Artists Reception
• Consult and update with City staff as they plan the One -Year Civic Center Anniversary
Celebration
January 2014:
• Fine tune placement selection
• Mail artists whose work was accepted the City's congratulations, necessary contracts, and
necessary legal documents.
• Obtain any additional artist information that might be needed
• Maintain contact with the artists and owners
• Respond to calls mail and email
• Develop docent - training materials with The Arts Foundation
• Report to Arts Commission for approval
• Start Docent Training
12
• Report to Arts Commission
February:
Media plan
• Design brochures and or catalog with artist information, images of the sculpture, dimensions
and materials of each work.
• Arrange for advertising through City staff
• Create press releases with City staff
• Arrange with City staff for banners
• Order on site sculpture labels and event signage
• Coordinate and oversee installation of sculpture pads /foundations with City
• Proactively work with city for potential problems in advance
March:
• Plan invitations and catering for Artist's Reception
Education
• Organize artist environmental /lead sculpture workshops
• Design sculpture guide
• Create education kit available from our website for thousands of children who will visit on
school excursions
• Plan access program tactile and easy tours - coordinate with Arts Foundation
• Notify schools in the area
• Create a `Site Issues Form' with City Site Manager including technical and structural questions
• Mail Site Issue Forms to each artist
• Coordinate with the City the logistic of streets -and state road use during installing process
• Review with Art in Public Places Ad Hoc Committee
• Report to Arts Commissioner
April:
• Confirm with artists their day and time of their sculptor installation
• Complete final sculpture installation
• Continue to work with staff and Arts Commission on Civic Center Anniversary Celebration
• Organize evening Artists Invitational Reception
• Readily available at all times
May.
• Final walk through of the Sculpture Park project with City, Commissioner and staff.
• Oversee evening Artists Reception
13
• Monitor new Docent Tours
• Close books
• Set up provisional time line for 2015/2016
• Review future event recommendations with Art in Public Places Ad Hoc Committee
• Final report to Arts Commission and City Council
14
ATTACHMENT H
SCULPTURE IN THE PARK
CALL FOR ENTRIES
2014/2016 NEWPORT BEACH INVITATIONAL EXHIBITION
(DEADLINE FOR ENTRIES - NOVEMBER 2013)
ABOUT THE NEWPORT BEACH SCULPTURE EXHIBITION:
The new Newport Beach Outdoor Sculpture Park designed by Peter Walker is located at the new 16 acre
Civic Center in the heart of Newport Beach. The park has been designed to exhibit eighteen pieces of
sculpture for a period of two years with installation planned for April 2014 and de- installation planned for
April of 2016. All sculpture should be suitable for outdoor installation, safe for viewers and appropriate for
extended exhibition and exposure to weather.
DEADLINE;
November 5, 2013 at 4:00 p.m. (postmark /email deadline)
HONORARIUM:
A $2500. honorarium will be provided for each selected artwork. Participant is responsible for delivery
and pick -up of the artwork per scheduled date.
ELIGIBILITY:
• All professional artists, museums /non - profit arts organizations and private collectors are
encouraged to apply.
TO APPLY SUBMIT;
• A current resume or CV including current contact information.
• A completed form for Review and Consideration of Art found on city web site
http://www.newportbeachca.gov/ .....
• Images of sculpture(s) on CD, jpegs (if submitting via email or CD), slides, or color photographs.
You must show three sides of each artwork. Please include complete contact information on
submittals.
• Description of the piece(s) including materials, dimensions and any required maintenance.
• Price of the sculpture (s) or selling price
• Submit application materials to:
City of Newport Beach
Art in the Park
1000 Avocado
Newport Beach, CA 92660
Attn. Arts Commission
Or- email address of staff
• If materials are submitted via regular mail, include a self addressed stamped envelope with the
appropriate postage for return. Submittals will not be returned if postage is not included.
• A maximum of two sculptures for consideration per artist.
TENATIVE TIMELINE;
November 5, 2013 at 4:00 p.m. (postmark/email deadline)
December 2013: Selections made by City Arts Commission - 18 sculptures plus 3 alternatives.
January 14, 2014: City Council review and approval of selections
Page 1 C Boller
15
January 16, 2014: Selected artists notified
April 2014: Installation of exhibition
May 2014: Exhibition dedication
April 2016: De- installation of exhibition
GUIDELINES:
• All sculpture should be suitable for outdoor installation, safe for viewers and appropriate for
extended outdoor exhibition and exposure to weather in Southern California.
• The sculpture must be original.
• Sculpture must be installed on one of the existing pads. All sculptures MUST be designed with
the required devices used to secure the artwork.
• Sculpture should be suitable for viewing from all angles.
• Works selected for the exhibition will be based on quality, design, scale, suitability for an outdoor
environment, safety to the public and stable mounting.
• The City reserves the right to exclude pieces that pose safety, security or other risks.
• The City will have first rights of refusal for any sales.
• Artists are responsible for insurance while the art is in transit. A condition report will be
completed upon arrival and departure.
SECURITY:
• Artists should be aware that the park is a non -gated public park.
THE CITY OF NEWPORT BEACH WILL PROVIDE THE FOLLOWING:
• Installation and de- installation of the artworks
• National, regional and local advertising
• Pads and general maintenance
• On site insurance
DISCLAMIER
• The City of Newport Beach reserves the right to reject all submittals and decline to award
contracts for this project.
INFORMATION:
For information contact.......... (contact name, email address, and telephone number.)
Page 2 C Boller
16
ATTACHMENT
Draft for Job description
Public Art Coordinator /Site Manager
Employment Type Contracted part -time, 9 -10 months 25 -30 hours per week
City of Newport Beach
The City of Newport Beach is offering an exciting project opportunity as a Public Art
Coordinator /Site Manager for the new sculpture exhibition. The Newport Beach Outdoor
Sculpture Park designed by Peter Walker is located in the new 16 acre Civic Center in
the heart of Newport Beach. The park has been designed to exhibit eighteen pieces of
sculpture for a period of two years with installation planned for April 2014 and de-
installation planned for April of 2016.
THE POSITION DESCRIPTION
Under general direction, the Public Art Program Coordinator /Site Manager assists in the
coordination and implementation of the Public Art Sculpture Program for the City of
Newport Beach, California. This classification reports to the staff and provides direct
support in administering and managing all aspects of the public art sculpture program. .
NEW POSITION
The new position is designated as a part- time, contracted "Project' position with
expected project duration of between 9 -10 months.
IDEAL CANDIDATE
In addition to meeting the minimum qualifications stated below, the ideal candidate for
this position will be an experienced project/program coordinator who is knowledgeable
about contemporary art, familiar with the theory, principles, practices and procedures of
art programs, and passionate about improving the quality of life in their community by
promoting diverse artistic and cultural innovation that inspires and thrills. It is essential
for the candidate to know our city well and to be easily accessible and readily available
during the project.
The ideal candidate for this position will have also demonstrated a track record of
success in the following areas:
• Knowledge of art and related issues
• Ability to develop, implement and manage art projects at various stages of
development;
• Capability to work well independently and with team members
• Ability to establish exceptional organizational skills, multi -task, prioritize work and
meet critical deadlines; and the
• Ability to communicate clearly and effectively at all levels within and outside the
City
• Vision artist communicate
MINIMUM QUALIFICATIONS
17
These are minimum professional requirements for the position of Public Art Program
Coordinator:
Education: Possession of a Bachelor's degree from an accredited college or university
with major course work in any of the following: Arts, Fine Arts, Art History, and Arts
Administration.
:►9
Experience: The equivalent of three years professional experience in public arts
programs, including experience working with the regional artists' community. (Additional
experience may be substituted for the education on a year- for -year basis.)
KNOWLEDGE AND SKILLS
The most suitably qualified candidates will possess the following competencies:
Knowledge of:
• Contemporary art and in particular, knowledge and familiarity of the theory,
principles, practices and procedures of public art programs.
• Practices and techniques of administrative analysis and report preparation.
• Budgetary and financial record keeping techniques and preparation.
• Laws, codes and regulations governing public agency financial operations.
• Computer applications related to the work, including Word, Excel, and
Photoshop.
• Basic personnel, procurement and contract administration practices.
Ability to:
• Develop and implement a public art program, involving the design and integration
of artwork into the construction of a public site.
• Prepare, monitor and administer program budgets and contracts.
• Manage art projects at various stages of development.
• Manage all phases of the design, fabrication and installation of the artwork.
• Work well independently and with team members.
• Possess exceptional organizational skills, multi -task, prioritize work and meet
critical deadlines.
• Communicate clearly and effectively orally and in writing to the Arts Commission
and the City Council.
• Exercise sound independent judgment within established policies and guidelines.
• Be highly organized and manage time effectively.
• Establish and maintain cooperative relationships with those contacted in the
course of work.
• Communicate effectively at all levels within and outside the city
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Agenda Item No. 15
July 23, 2013
To offer an idea of and place to visualize
what you may see in our future sculpture
park, the following slides illustrate a broad
selection of the type of sculpture
contemporary artists create. Two slides
are included to give a picture of an
installation and a working artist...
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*0r-- ,NEWPORT BEACH .: ,
....... __........._ __... _
SEW POST
CITY OF NEWPORT BEACH
OFFICE OF THE CITY CLERK
Leilani 1. Brown, MMC
June 23, 2010
Mr. Dennis Szakacs
Orange County Museum of Art
850 San Clemente
Newport Beach, CA 92660
Dear Mr. Szakacs:
Enclosed please find your executed original of Memorandum of Understanding No.
4568 between the Orange County Museum of Art and the City of Newport Beach.
If you have any questions or need additional information, please contact Library
Services Director Cynthia Cowell.
Sincerely,
Leilani I. Brown, MMC
City Clerk
Enclosures
cc: Cynthia Cowell, Library Services Director
3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92658 -8915
Telephone: (949) 644 -3005 • Fax: (949) 644 -3039 - www.city.newport- beach.ca.us
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 12
June 22, 2010
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: LIBRARY SERVICES
Cynthia Cowell, Library Services Director
949 - 717 -3810, ccowell @newportbeachca.gov
Jana Barbier, Cultural Arts Coordinator
949 - 717 -3870, jbarbier @newporbeachca.gov
SUBJECT: Memorandum of Understanding between the City of Newport Beach
and the Orange County Museum of Art to create a Sculpture Park at
the Civic Center
ISSUE:
Whether the City Council should approve a Memorandum of Understanding ( "MOU ")
with the Orange County Museum of Art ( "OCMA ") to create a Sculpture Park at the new
Civic Center?
RECOMMENDATION:
Approve the proposed MOU between the City of Newport Beach ( "City') and OCMA to
create a Sculpture Park at the Civic Center and authorize the City Manager to enter into
a License Agreement with OCMA to provide OCMA access to the Civic Center site.
DISCUSSION:
The proposed MOU between the City and OCMA will provide a mechanism for the
display of permanent and temporary works of art at the Civic Center. Permanent
artwork is defined under the MOU as artwork that will be gifted free of charge to the
City, while temporary artwork will be on loan to the City for varying periods of time.
The MOU will establish the general framework and understanding of the City and
OCMA as to the development of a Sculpture Park at the Civic Center. The MOU
provides the City and OCMA with an understanding as to their respective obligations
regarding the Sculpture Park with the expectation that the parties may need to enter into
1
future agreements to fully effectuate the intent of the parties and to implement a
comprehensive plan for the development of a Sculpture Park.
OCMA shall provide at least one piece of artwork for the Sculpture Park every two years
commencing from the execution of this MOU. The artwork may be permanent artwork
in the form an original commission, or an acquisition by OCMA of an existing piece.
OCMA may also provide the City with temporary artwork on long term loan from
OCMA's existing collection. In addition, from time -to -time OCMA shall provide
temporary artwork for display within the Sculpture Park. The first piece of temporary
artwork shall be provided to the City prior to or concurrent with the grand opening of the
Civic Center.
The City Arts Commission recommends support of the proposed MOU and voted at a
specially noticed meeting on May 17, 2010 to recommend City Council approval of this
MOU.
ENVIRONMENTAL REVIEW:
This action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant
to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable
indirect physical change in the environment) and 15060(c)(3) (the activity is not a
project as defined in Section 15378) of the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical
change to the environment, directly or indirectly.
NOTICE:
Notice of this item was provided pursuant to the Ralph M. Brown Act 72 hours prior to
the City Council's meeting.
Prepared By:
Jan rbier,
Cultural Arts Coordinator
Attachment: Sculpture Park MOU
Reviewed & Submitted By:
ynthia Cowell,
Library Services Director
2
MEMORANDUM OF UNDERSTANDING
BETWEEN THE CITY OF NEWPORT BEACH AND
THE ORANGE COUNTY MUSEUM OF ART FOR A SCULPTURE PARK
AT THE NEWPORT BEACH CIVIC CENTER
THIS MEMORANDUM OF UNDERSTANDING FOR A SCULPTURE PARK AT
THE NEWPORT BEACH CIVIC CENTER is made and entered into as of
20_, by and between the City of Newport Beach, a California municipal
corporation, and the Orange County Museum of Art, a California corporation.
I. RECITALS
1. City is constructing a Civic Center on a 16 -acre parcel located at 1100
Avocado Avenue, Newport Beach, California.
2. City desires to create a Sculpture Park at the Civic Center to display art for
the public's enjoyment.
3. OCMA is a premier visual arts organization in Orange County, California
with a collection that houses more than 2,500 objects and welcomes more than 60,000
visitors annually. OCMA has the necessary expertise to develop a site - specific sculpture
collection in the Sculpture Park.
4. City and OCMA desire to enter into this MOU to collaborate on the
development of the Sculpture Park at the Civic Center.
NOW, THEREFORE, in consideration of the foregoing recitals and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, City and OCMA agree as follows:
II. PURPOSE
The purpose of this MOU is to establish the general framework and
understanding of the Parties as to the development of a Sculpture Park at the Civic
Center. The Parties intend for this MOU to provide an understanding as to their
respective obligations regarding the Sculpture Park with the expectation that the Parties
may need to enter into future agreements to fully effectuate the intent of the Parties and
to implement a comprehensive plan for the development of a Sculpture Park.
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A10- 00025/06.07.10 V13
III. DEFINITIONS
For the purposes of this MOU the following words and phrases shall have the
following meanings:
1. "Arts Commission" shall mean the City of Newport Beach Arts
Commission.
2. "Artwork" shall mean pieces of art created, acquired or owned by OCMA
and proposed for display either on a permanent, temporary or long term loan basis in
the Sculpture Park. `Permanent Artwork" shall mean Artwork accepted and owned by
City, while 'Temporary Artwork" shall mean Artwork that is loaned to City for display in
the Sculpture Park on a temporary basis but remains under the ownership of OCMA.
3. "City" shall mean the City of Newport Beach, California.
.4. "City Attorney" shall mean the City Attorney of the City of Newport Beach.
5. "City Council' shall mean the Newport Beach City Council.
6. "City Manager" shall mean the City Manager of the City of Newport Beach.
7. "Civic Center" shall mean the civic building proposed to be constructed by
the City at 1100 Avocado Avenue, Newport Beach, California.
8. "Indemnified Parties" shall mean the City and its elected officials,
employees, agents, contractors, subcontractors and volunteers.
9. "MOU" shall mean this Memorandum of Understanding Between the City
of Newport Beach and the Orange County Museum of Art for a Sculpture Park at the
Newport Beach Civic Center.
10. "OCMA" shall mean the Orange County Museum of Art.
11. "Party" or "Parties" shall mean the City or OCMA individually or
collectively, respectively.
12. "Sculpture Park" shall mean the outdoor art exhibition space provided by
the City on a portion of the 16 -acre parcel that houses the Civic Center.
IV. CITY'S RESPONSIBILITIES
City shall do the following:
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1. Provide an adequate outdoor area at the Civic Center for a Sculpture Park
and permit OCMA to display City- approved Artwork within the Sculpture Park. The
location and layout of the Sculpture Park will be generally as depicted in the attached
Exhibit "A" which is incorporated by reference herein.
2. Notify OCMA of construction progress of the Civic Center, including delays
in construction, to allow OCMA to accurately time fabrication, shipping and delivery of
Artwork for the Sculpture Park.
3. Recognize OCMA's contribution when showing or reproducing Artwork
originating from OCMA in the Sculpture Park by posting a plaque or plaques within the
Sculpture Park.
4. Accept ownership, insurance and maintenance responsibilities for
Permanent Artwork and insurance and maintenance responsibilities for Temporary
Artwork provided by OCMA and displayed in the Sculpture Park. The City's insurance
will be in addition to, and not in lieu of, OCMA's insurance policy for the Temporary
Artwork.
V. OCMA'S RESPONSIBILITIES
OCMA shall do the following:
1. OCMA shall provide at least one piece of Artwork for the Sculpture Park
every two (2) years commencing from the execution of this MOU. The Artwork may be
Permanent Artwork in the form an original commission, or an acquisition by OCMA of an
existing piece. OCMA may also satisfy the Artwork requirement by providing the City
with Temporary Artwork on long term loan from OCMA's existing collection in which
case, the parties agree that OCMA shall retain ownership of such Artwork. In addition
to providing the Artwork, from time -to -time OCMA shall provide Temporary Artwork for
display within the Sculpture Park. The first piece of Temporary Artwork shall be
provided to the City prior to or concurrent with the grand opening of the Civic Center.
2. OCMA shall take the lead for seeking funding and collecting donations to
create or obtain the Artwork under this MOU. OCMA is not entitled to, and shall not
seek, reimbursement from City for the Artwork.
3. OCMA agrees and understands that the Artwork must be durable, taking
into consideration that the Sculpture Park will be an unsecured public space that may
be exposed to elements such as weather, temperature variation, and will be subject to
human touch and will take this into consideration when proposing Artwork so that
foreseeable exposure to the elements and general wear and tear will cause the Artwork
to experience only minor damage and will not cause the Artwork to fall below an
acceptable standard of display.
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4. OCMA shall comply with City's materials guidelines and safety criteria for
the Artwork as embodied in the adopted policies of the City Council. City will provide
OCMA with copies of the applicable policies upon execution of this MOU by all Parties.
5. OCMA covenants to City that the design of the Artwork and all Artwork
produced, acquired, and /or provided by OCMA pursuant to this MOU will be original and
will not infringe on any third - party's copyright rights or other intellectual property rights.
6. OCMA covenants to City that all Artwork produced, acquired, and /or
provided by OCMA pursuant to this MOU will be free and clear of all liens related to any
work performed by OCMA or its employees, volunteers, contractors or artists.
7. OCMA covenants that all Artwork under this MOU will be free of defects in
workmanship or materials for a period of twelve months after final acceptance by City.
The City's right to enforce this covenant is conditional, and shall be voided by the failure
of City to maintain the Artwork in accordance with maintenance guidelines provided by
OCMA. OCMA further agrees to provide copies of, and to the extent that it is able,
assign manufacturers' warranties for all products used in the fabrication and installation
of the Artwork to City. Artwork that predates this MOU shall, to the extent feasible, be
free of defects.
8. OCMA shall not make any duplicates of any Artwork accepted by City for
the Sculpture Park, nor shall OCMA grant permission to others to do so except with the
prior written consent of City. OCMA shall credit City when showing or reproducing
Artwork installed in the Sculpture Park.
9. OCMA shall not sell or reproduce the design of any Permanent Artwork
without the prior written consent of the City.
VI. ARTWORK REVIEW PROCESS
1. OCMA shall submit all Artwork to the Arts Commission for its review and
written recommendation to approve or reject the Artwork. At the time of submission to
the Arts Commission, OCMA shall notify the Arts Commission in writing whether a
particular piece of Artwork is designed to be temporarily or permanently displayed in the
Sculpture Park. The submittal from OCMA shall include OCMA's proposed location
within the Sculpture Park for the Artwork, the installation requirements, transportation
costs and the length of display and allocation of removal costs for Temporary Artwork.
The Arts Commission shall review the Artwork and make its written recommendation to
the City Council.
2. Upon receipt of the Arts Commission's written recommendation, the City
Council shall have sole and absolute discretion to determine if the Artwork is acceptable
for installation, whether on a permanent or temporary basis in the Sculpture Park. The
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20
City shall notify OCMA in writing of the City Council's decision to accept or reject the
proposed Artwork.
3. OCMA shall work with City to locate appropriate sites for the Artwork
within the Sculpture Park. OCMA understands that the proposed location of Artwork is
subject to a feasibility review by City that will consider site foundation conditions, view
plane, weight, size, and potential damage to existing Civic Center improvements during
placement, relocation, or removal operations.
4. In addition to the Artwork, City may from time -to -time procure art from
third - parties for the Sculpture Park. City shall refer all third -party art proposed to be
included within the Sculpture Park to OCMA for its review. OCMA shall review the third -
party art within thirty (30) calendar days and make a written recommendation to either
include or exclude the third -party art within the Sculpture Park. If OCMA determines the
third -party art is not appropriate for inclusion within the Sculpture Park the City shall not
install the art within the Sculpture Park. If OCMA recommends inclusion of the third -
party art within the Sculpture Park OCMA shall forward its written recommendation to
the Arts Commission pursuant to subsection 1 of Section VI and the procedure for
Artwork review shall be followed.
VII. ARTWORK INSTALLATION
1. City will prepare, at its own cost, sites meeting the requirements set by
OCMA within the Sculpture Park for the installation of approved Artwork. The extent of
the site preparation will vary depending upon the Artwork proposed and whether the
Artwork is approved to be installed on a permanent or temporary basis.
2. Thirty (30) calendar days prior to the date of installation of a piece of
Artwork, OCMA shall supply the City with a maintenance manual describing anticipated
maintenance requirements, manufacturers' preservation suggestions and a
recommended maintenance schedule.
3. At the time of installation of a piece of Permanent Artwork OCMA shall gift,
free of charge, the Permanent Artwork to the City in a form acceptable to the City
Attorney. OCMA shall at all times retain ownership and insurance for all Temporary
Artwork installed within the Sculpture Park.
4. The Parties shall execute a license agreement, in a form substantially
similar to Exhibit "B" incorporated herein authorizing OCMA to enter upon the Civic
Center site to design Artwork and assist City with Artwork installation within the
Sculpture Park. The City Council authorizes the City Manager to execute the license
agreement once approved to form by the City Attorney.
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A10- 00025/06.07.10 V13
VIII. TERM AND TERMINATION
1. Term. The term of this MOU shall commence upon the execution of this
MOU by City and OCMA and shall terminate on June 1, 2015, unless earlier terminated
as provided in this MOU.
2. Grounds for Termination. Either Party may, by written notice to the other
Party, terminate the whole or any part of this MOU with or without cause, by giving thirty
(30) calendar days written notice to the other Party specifying the effective termination
date thereof.
3. Effect of Termination. If this MOU is terminated as provided herein, City
will require OCMA to provide all finished Artwork and related documents and other
information of any kind prepared by OCMA with funds derived from grants or from the
City. OCMA shall reimburse City any funds received from City or from grants obtained
on behalf of City related to unfinished Artwork. OCMA shall be required to provide such
Artwork, reimbursement and other information within fifteen (15) calendar days of the
termination. The Permanent Artwork in the Sculpture Park shall remain in the
ownership of the City, while the Temporary Artwork and the Artwork on long term loan
shall be removed by OCMA, at their expense, within thirty (30) calendar days of the
City's written request.
IX. MISCELLANEOUS PROVISIONS
1. Cooperation; Further Acts. The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as may be
necessary, appropriate or convenient to attain the purposes of this MOU.
2. Incorporation of Recitals. The Parties agree that the recitals provided in
this MOU are true and correct and are incorporated into the substantive portion of this
MOU.
3. Grant Funding. The Parties will work cooperatively together to secure
grant funding for the Sculpture Park. The Parties have submitted a jointly executed
application to the National Endowment for the Arts date March 15, 2010. If the grant is
awarded, the City and OCMA shall utilize the grant funds in the manner described in the
grant application and supplemental documentation submitted by the Parties to the
National Endowment for the Arts regarding the grant.
4. Indemnity.
4.1 To the fullest extent permitted by law, OCMA and its successors or
assigns, agrees to indemnify, defend and hold harmless the Indemnified Parties from
and against any and all claims (including, without limitation, claims for bodily injury,
H
A10- 00025/06.07.10 V13
C$
death, mechanics liens, or damage to property), demands, obligations, damages,
actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including, without limitation, attorneys' fees, disbursements, costs of
litigation, investigation, appeal, expert witness fees and court costs) of every kind and
nature whatsoever, which arise from OCMA its contractors', artists', agents',
employees', invitees', and their respective employees actions and Artwork under this
MOU. The foregoing shall not serve as authority for OCMA or its counsel to settle any
Claim without the prior written consent of City.
Notwithstanding the foregoing, nothing herein shall be construed to require
OCMA to indemnify the Indemnified Parties from any claim arising from the gross
negligence or willful misconduct of the Indemnified Parties. 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 MOU.
4.2 City shall indemnify, defend and hold harmless OCMA from and
against any and all claims (including, without limitation, claims for bodily injury, death, or
damage to property), demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including, without
limitation, attorneys' fees, disbursements, costs of litigation, investigation, appeal,
expert witness fees and court costs) of every kind and nature whatsoever, which arise
from the City's ownership of the Permanent Artwork.
Notwithstanding the foregoing, nothing herein shall be construed to require City
to indemnify OCMA from any claim arising from the negligence or misconduct of OCMA
or relating to a manufacturing defect in the Permanent Artwork. 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 MOU.
5. Insurance.
5.1 Time for Compliance. OCMA shall not commence work under this
MOU until it has provided evidence satisfactory to the City that it has secured all
insurance required under this section. In addition, OCMA shall not allow any artist to
commence work on any piece of Artwork until it has provided evidence satisfactory to
the City that the artist has secured all insurance required under this section.
5.2 Minimum Requirements. OCMA shall, at its expense, procure and
maintain for the duration of the MOU insurance against claims for injuries to persons or
damage to property which may arise from or in connection with the performance of the
MOU by OCMA, its artists, agents, representatives, employees or subcontractors.
OCMA shall also require all of its artists to procure and maintain the same insurance for
the duration of the MOU. Such insurance shall meet at least the following minimum
levels of coverage:
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AIO- 00025/06.07.10 V13
I
(A) Minimum Scope of Insurance. Coverage shall be at least as
broad as the latest version of the following: (1) General Liability: Commercial General
Liability coverage; (2) Automobile Liability: Business Auto Coverage (any auto); and (3)
Workers' Compensation.
(B) Minimum Limits of Insurance. OCMA shall maintain limits no
less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal
injury and property damage. If Commercial General Liability Insurance or other form
with general aggregate limit is used, either the general aggregate limit shall apply
separately to this MOU or the general aggregate limit shall be twice the required
occurrence limit; and (2) Automobile Liability: $1,000,000 per accident for bodily injury
and property damage.
5.3 Insurance Endorsements. The insurance policies shall contain the
following provisions, or OCMA shall provide endorsements on forms supplied or
approved by the City to add the following provisions to the insurance policies:
(A) General Liability. The general liability policy shall be
endorsed to state that: (1) the City, its directors, officials, officers, employees, agents
and volunteers shall be covered as additional insured with respect to the Artwork during
such time as it belongs to OCMA or operations performed by or on behalf of the OCMA,
including materials, parts or equipment furnished in connection with such Artwork; and
(2) the insurance coverage shall be primary insurance as respects the City, its directors,
officials, officers, employees, agents and volunteers, or if excess, shall stand in an
unbroken chain of coverage excess of the OCMA's scheduled underlying coverage.
Any insurance or self- insurance maintained by the City, its directors, officials, officers,
employees, agents and volunteers shall be excess of the OCMA's insurance and shall
not be called upon to contribute with it in any way.
(B) All Coverages. Each insurance policy required by this MOU
shall be endorsed to state that: (1) coverage shall not be suspended, voided, reduced
or canceled except after thirty days prior written notice by certified mail, return receipt
requested, has been given to the City; and (2) any failure to comply with reporting or
other provisions of the policies, including breaches of warranties, shall not affect
coverage provided to the City, its directors, officials, officers, employees, agents and
volunteers.
5.4 Separation of Insureds; No Special Limitations. All insurance
required by this section shall contain standard separation of insureds provisions. In
addition, such insurance shall not contain any special limitations on the scope of
protection afforded to the City, its directors, officials, officers, employees, agents and
volunteers.
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A10- 00025/06.07.10 V13
ID
5.5 Deductibles and Self- Insurance Retentions. Any deductibles or
self- insured retentions must be declared to and approved by the City. OCMA shall
guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate
such deductibles or self- insured retentions as respects the City, its directors, officials,
officers, employees, agents and volunteers; or (2) the OCMA shall procure a bond
guaranteeing payment of losses and related investigation costs, claims and
administrative and defense expenses.
5.6 Acceptability of Insurers. Insurance is to be placed with insurers
with a current A.M. Best's rating no less than A:VIII, licensed to do business in
California, and satisfactory to the City.
5.7 Verification of Coverage. OCMA shall furnish City with original
certificates of insurance and endorsements effecting coverage required by this MOU on
forms satisfactory to the City. The certificates and endorsements for each insurance
policy shall be signed by a person authorized by that insurer to bind coverage on its
behalf, and shall be on forms provided by the City if requested. All certificates and
endorsements must be received and approved by the City before work commences.
The City reserves the right to require complete, certified copies of all required insurance
policies, at any time.
5.8 City's Insurance Requirements. As related to subsection 4 of
Section IV above, City shall maintain Fine Arts Insurance or other form of insurance
acceptable to OCMA relating to Artwork on long term loan and Temporary Artwork
displayed in the Sculpture Park in an amount equal to or greater than the appraised
value of the Artwork or Artworks as determined by OCMA at the time of installation.
The Artwork will be insured and /or indemnified against standard risks of physical loss or
damage while on location in the Sculpture Park. City shall furnish OCMA with original
certificates of insurance and endorsements effective coverage required by this MOU on
forms satisfactory to OCMA naming OCMA as an additional insured.
6. Notices. Any notice, request, direction, demand, consent, waiver,
approval or other communication required or permitted to be given hereunder shall be in
writing and shall be personally delivered or sent by registered or certified mail, postage
prepaid, return receipt requested, or overnight courier, or electronic transmission as
defined below.
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A10- 00025/06.07.10 V13
Notices or other communications shall be addressed as follows:
To OCMA: Orange County Museum of Art
Attention: Deputy Director for Administration
850 San Clemente
Newport Beach, California 92660
To City: City of Newport Beach
Attention: City Manager
Attention: Library Director
3300 Newport Blvd.
Newport Beach, California 92658
Any Party may change its information for notice purposes at any time by
providing written notice to the other Party.
Communications shall be deemed effective upon (i) the date of delivery to the
address of the Parry to receive such notice, if delivered personally or by messenger or
overnight courier as shown by the addressee's return receipt if by certified mail, and as
confirmed by the courier service if by courier; provided, however, that if such actual
delivery occurs after 5:00 p.m. (local time where received) or on a non - business day,
then such notice or demand so made shall be deemed effective on the first business
day following the day of actual delivery (ii) three business days after the date of posting
by the United States Post Office if by mail; or (iii) when received by recipient if given by
facsimile or e-mail (collectively, "electronic transmission "), as evidenced by written
acknowledgment from the recipient of the electronic transmission, for example by return
e -mail or by answerback if by facsimile.
7. Successors and Assigns. This MOU shall bind and inure to the benefit of
the Parties and their respective successors and assigns; provided, however, that OCMA
shall not have the right to assign its rights or obligations hereunder without the prior
written consent of City, which may be granted or withheld in City's sole and absolute
discretion.
8. Interpretation. All section headings are inserted for convenience only and
shall have no effect on the construction or interpretation of this MOU. Each Party
acknowledges that such Party and its counsel, after negotiation and consultation, have
reviewed and revised this MOU. As such, the terms of this MOU shall be fairly
construed and the usual rule of construction, to the effect that any ambiguities herein
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A10- 00025/06.07.10 V13
I�L
i
should be resolved against the drafting Party, shall not be employed in the interpretation
of this MOU.
9. Partial Invalidity. Each and every provision of this MOU is, and shall be
construed to be, a separate and independent covenant and agreement. If any provision
of this MOU, or the application thereof, shall to any extent be held to be invalid or
unenforceable, the remainder of this MOU, or the application of such provision to
circumstances other than those to which it is invalid or unenforceable, shall not be
affected hereby, and each provision of this MOU shall be valid and shall be enforced to
the extent permitted by law.
10. Applicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this MOU. Venue shall be in Orange County,
California.
11. Modifications. All modifications of, or amendments to, this MOU shall be
in writing and signed by the Parties.
12. No Partnership. Nothing contained in this MOU shall be deemed or
construed to create a partnership, tenancy in common, joint tenancy, joint employer
liability, joint venture or co- ownership by or between City and OCMA. Subject to its
compliance with the terms and conditions of this MOU, OCMA shall be free to determine
its own policies and practices in the conduct of its business and activities concerning the
Artwork contemplated under this MOU.
13. Prior Agreements. This MOU and all exhibits, if any, thereto contain all of
the agreements of the Parties with respect to the transaction contemplated hereby, and
no prior agreements or understandings pertaining to any such transaction shall be
effective for any purpose and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No oral agreement or implied covenant
shall be held to vary the provisions herein.
14. Other Artwork; Removal of Artwork. Subject to the terms of this MOU, the
City shall have the ability to contract with other parties to provide art for the Sculpture
Park. City shall have sole and absolute discretion to remove or relocate a piece of
Permanent Artwork from the Sculpture Park.
15. No Attorneys' Fees. In the event of a dispute under this MOU the
prevailing Party shall not be entitled to attorneys' fees.
16. Counterparts. This MOU may be executed in any number of counterparts,
each of which, when executed and delivered, shall be deemed to be an original, and all
of which, taken together, shall be deemed to be one and the same instrument.
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A10- 00025/06.07.10 V13
11
IN WITNESS WHEREOF, the Parties have executed this MOU as of the date
first above written.
Approved as to Form:
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David R. Hunt, City Attorney
City of Newport Beach
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Dated:
THE CITY OF NEWPORT BEACH
By: Keith Curry, Mayor
Dated:
City of Newport Beach
Attest:
Leilani Brown
City Clerk
City of Newport Beach
ORKQ COUNTY MUSEUM OF ART
By: _
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Title:
ORANGE COUNTY MUSEUM OF ART
By:
Name: CP C S
Title: APf3 (D��-T'
Dated : W/4124010
[END OF SIGNATURES]
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A10- 00025/06.02.10 V12
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....._......... _..._.._.. .
Exhibit "A"
Sculpture Park Location & Layout
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A 10- 00025/06.07.10 V 13 10
ART MASTER PLAN
BOHLIN CYWNSKI JACKSON PWP I AAUP
0 APRIL 13. 2010
Exhibit "B"
License Agreement
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A] 0- 00025/06.07.10 V13
i
LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND THE
ORANGE COUNTY MUSEUM OF ART FOR A SCULPTURE PARK AT THE
NEWPORT BEACH CIVIC CENTER
This Civic Center Sculpture Park License Agreement ( "Agreement "), dated this
day of 2010, is made by and between the City of Newport
Beach, a California Municipal Corporation ( "City'), and the Orange County Museum of
Art, a California Corporation ("OCMA").
RECITALS
1. City is constructing a Civic Center on a 16 -acre parcel located at 1100
Avocado Avenue, Newport Beach, California.
2. City desires to create a Sculpture Park at the Civic Center to display art for
the public's enjoyment.
3. OCMA is a premier visual arts organization in Orange County, California
with a collection that houses more than 2,500 objects and welcomes more than 60,000
visitors annually. OCMA has the necessary expertise to develop a site - specific sculpture
collection in the Sculpture Park.
4. City desires to permit OCMA to install Artwork on the Civic Center Property
in furtherance of the development of the Sculpture Park.
5. Unless otherwise defined herein, the parties desire to use the defined
terms included within the Memorandum of Understanding Between the City of Newport
Beach and the Orange County Museum of Art for a Sculpture Park at the Newport Beach
Civic Center ( "MOU ") for this Agreement. The MOU is hereby incorporated by reference
into this Agreement.
TERMS
1. Recitals
The Recitals set forth above are true and correct, are a material part of this
Agreement, and are incorporated herein by this reference.
2. License to Enter Civic Center
2.1 The City hereby grants OCMA a license to enter upon the Civic
Center site to design Artwork and assist City with Artwork
installation within the Sculpture Park pursuant to the terms of the
MOU.
2.2 [Reserved]
j9
2.3 The Sculpture Park location is generally depicted in Exhibit "A" to
the MOU, which is hereby incorporated by reference into this
Agreement.
3. Changes and Modifications
Changes and modifications to this Agreement shall be performed pursuant to
written agreement by the parties.
4. Notices
Any notice, request, direction, demand, consent, waiver, approval or other
communication required or permitted to be given hereunder shall be in writing and shall
be personally delivered or sent by registered or certified mail, postage prepaid, return
receipt requested, or overnight courier, or electronic transmission as defined below.
Notices or other communications shall be addressed as follows:
To OCMA: Orange County Museum of Art
Attention: Deputy Director for Administration
850 San Clemente
Newport Beach, California 92660
To City: City of Newport Beach
Attention: City Manager
Attention: Library Director
3300 Newport Blvd.
Newport Beach, California 92658
Either party may change its information for notice purposes at any time by
providing written notice to the other party.
Communications shall be deemed effective upon (i) the date of delivery to the
address of the party to receive such notice, if delivered personally or by messenger or
overnight courier as shown by the addressee's return receipt if by certified mail, and as
confirmed by the courier service if by courier; provided, however, that if such actual
delivery occurs after 5:00 p.m. (local time where received) or on a non - business day,
then such notice or demand so made shall be deemed effective on the first business
day following the day of actual delivery (ii) three (3) business days after the date of
posting by the United States Post Office if by mail; or (iii) when received by recipient if
given by facsimile or e-mail (collectively, "electronic transmission "), as evidenced by
written acknowledgment from the recipient of the electronic transmission, for example
by return e-mail or by answerback if by facsimile.
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5. Indemnity
To the fullest extent permitted by law, OCMA and its successors or assigns,
agrees to indemnify, defend and hold harmless the Indemnified Parties from and
against any and all claims (including, without limitation, claims for bodily injury, death,
mechanics liens, or damage to property), demands, obligations, damages, actions,
causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including, without limitation, attorneys' fees, disbursements, costs of
litigation, investigation, appeal, expert witness fees and court costs) of every kind and
nature whatsoever, which arise from OCMA its contractors', artists', agents',
employees', invitees', and their respective employees actions and Artwork under this
Agreement. The foregoing shall not serve as authority for OCMA or its counsel to settle
any Claim without the prior written consent of City.
Notwithstanding the foregoing, nothing herein shall be construed to require
OCMA to indemnify the Indemnified Parties from any claim arising from the gross
negligence or willful misconduct of the Indemnified Parties. 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.
6. Conflict of Interest
OCMA and its employees may be subject to the provisions of the California
Political Reform Act of 1974 ( "Act "), which (a) requires such persons to disclose any
financial interest that may foreseeably be materially affected by the work performed
under this Agreement, and (b) prohibits such persons from making, or participating in
making, decisions that will foreseeably financially affect such interest. If subject to the
Act, OCMA shall conform to all requirements of the Act. Failure to do so constitutes a
material breach and is grounds for immediate termination of this Agreement by City.
OCMA shall indemnify and hold harmless City for any and all claims for damages
resulting from OCMA's violation of this Section.
7. Termination
Notwithstanding the term of this Agreement, this Agreement may be terminated
during the term or any extended term in the following manner:
7.1 By City: In accordance with the provisions of Section 6 or, at any
time, without cause upon the giving of thirty (30) days written notice
of termination to OCMA; or
7.2 By OCMA: At any time, for cause upon the giving of thirty (30) days
written notice of termination to City; or
7.3 By mutual consent: At any time, by mutual written consent of both
parties.
3
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8. Integrated Agreement
With the exception of the MOU, 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.
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.
10. Independent Relationship
It is understood that OCMA is not an agent or employee of City. Nothing in this
Agreement shall be deemed to constitute approval for OCMA or any of OCMA's
employees or agents, to be the agents or employees of City.
11. Cooperation
OCMA agrees to work closely and cooperate fully with City and any other
agencies that may have jurisdiction or interest in the work to be performed. City agrees
to cooperate with the OCMA in regards to this Agreement.
12. City Policy
OCMA shall discuss and review all matters relating to this Agreement with City
representatives in advance of all critical decision points to ensure the actions taken
pursuant to this Agreement proceed in a manner consistent with City goals and policies.
13. Prohibition against Assignment and Transfer
This Agreement shall not be assigned, transferred contracted or subcontracted
out without the prior written approval of City which approval may be withheld in the
City's sole discretion.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Approved as to Form:
Office of the City Attorney
David R. Hunt, City Attorney
City of Newport Beach
Dated:
THE CITY OF NEWPORT BEACH
By: Dave Kiff, City Manager
Dated:
City of Newport Beach
Attest:
Leilani Brown
City Clerk
City of Newport Beach
ORANGE COUNTY MUSEUM OF ART
By:
Name:
Title:
Dated:
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By:
Name:
Title:
Dated:
[END OF SIGNATURES]
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d3
June 2, 2010
The Honorable Keith Curry, Mayor
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92660
RE: Civic Center Park Sculpture
Dear Mayor Curry:
At a meeting held on Monday, May 17, 2010, the Newport Beach Arts
Commission voted 5 - 0 (with two Commissioners absent) to recommend the Newport
Beach City Council's approval of a draft Memorandum of Understanding (MOU)
between the City of Newport Beach and the Orange County Museum of Art (OCMA)
regarding, among oiher things, sculpture in the Civic Center Park.
The draft MOU is a result of a great deal of discussion - and compromise -
between the City and OCMA with the collective goal of developing a world -class
sculpture program at the Civic Center Park. We are aware the City Attorney's Office,
the City Manager, Arts Commission, Mayor Curry, and the staff and Board at OCMA all
weighed in to make the MOU a document that is workable for all parties. We
appreciate the staff assistance of Jana Barbier to help bring this to fruition as well.
The Commission is confident the partnership, and the process described within
the MOU, will bring about a quality program of which all of the Newport Beach
community can be proud. We thank the City Council for considering this important
partnership. We look forward to implementing the MOU with the City and OCMA as we
develop a tremendous community asset at the Civic Center Park.
Sincerely,
Robyn G
Chair, Newport Beach Arts Commission
cc: Members of the Newport Beach City Council
Members of the Newport Beach Arts Commission
Dennis Szokocs, Orange County Museum of Arts (OMCA)
1000 Avocado Avenue* N.ewporf4each, CA -a 92660 0 Phone 949- 717 -3870 + Fax 949.640.5681