HomeMy WebLinkAboutC-5407 - Agreement for Loan and Display of Sculpture_\ AGREEMENT FOR LOAN AND DISPLAY OF SCULPTURE
1� BETWEEN THE CITY OF NEWPORT BEACH AND
Q SARAH A. WILKINSON
This Agreement is made this 26th day of March, 2013 by and between the CITY
OF NEWPORT BEACH, a California municipal corporation and charter city ( "City "), and
SARAH A. WILKINSON, a sole proprietor doing business as ( "DBA ")
SustainableArtWorks ( "Artist'), whose principal place of business is Post Office Box
1052, Corona del Mar, CA 92625 and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it Is now being
conducted under the statutes of the State of California and the Charter of City.
B. The Artist agrees to loan to City and City agrees to borrow from the Artist, the
sculpture entitled "Uprooted II" ( "Sculpture "), as depicted in Exhibit A, attached
hereto and incorporated herein by reference, for display at the City's new Civic
Center located at 100 Civic Center Drive, Newport Beach, California ( "Civic
Center").
C. The Artist represents and warrants she holds all rights, title and interests therein
or otherwise possesses the right of ownership and control of the Sculpture.
D. In accordance with City Council Policy 1 -9, the City's Arts Commission has
identified and selected an Artist for an Art in Public Places Project at the Civic
Center and has made said recommendation to the City Council for
Consideration.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
The Term of this Agreement shall commence on the Effective Date and shall
terminate on March 25, 2014, unless terminated earlier or extended by written
amendment to this Agreement.
2. HONORARIUM
2.1 City shall compensate Artist with an honorarium in the amount of Seven
Hundred and Fifty Dollars and 00/100 ($750.00) per year for the loan of the Sculpture to
the City. The first year's honorarium shall be paid by City two (2) weeks after delivery of
the Sculpture by Artist to the Civic Center and City's acceptance. Should the term of
this Agreement be extended, the honorarium for any subsequent year shall be paid
within two (2) weeks of the anniversary date of this Agreement.
2.2 Artist shall provide the City with the option to purchase the Sculpture,
including without limitation all rights, trademarks, copyrights, title and interests therein,
at an agreed upon purchase price of Twenty -Five Thousand Dollars and 00/100
($25,000.00) minus any amount the City has already paid to the Artist as an honorarium
under the terms of this Agreement ( "Purchase Price').
3. EXHIBITION SITE
The exhibition site for the Sculpture will be at a public location at the Civic Center
to be determined at the City's sole and absolute discretion (the "Site ").
4. INSTALLATION AND REMOVAL
4.1 The Artist, at h3r sole cost and expense, shall be responsible for the
preparation, transportation and delivery of the Sculpture to the Site. The Artist, at her
sole cost and expense, will also undertake the subsequent removal of the Sculpture
upon expiration of this Agreement should the City not exercise its option to purchase the
Sculpture as provided for in paragraph 2.2 above.
4.2 The City, at its sole cost and expense, shall install the Sculpture at the
Site. The City shall not seek reimbursement of any of its costs and expenses that it
might incur in installing the Sculpture at the Site.
4.3 After the Sculpture is installed by the City at the Site, the City shall cause
a plaque to be placed near the Site stating the title of the Sculpture and the Artist's
name. The exact size, color and location of the plaque will be determined by the City in
its sole and absolute discretion.
4.4 The Artist will obtain the Library Services Director's written approval of the
date and time of delivery and, if necessary, the subsequent removal of the Sculpture
5. MAINTENANCE AND REPAIRS
5.1 The Artist, at her sole cost and expense, shall maintain and repair the
Sculpture during the term of this Agreement. The Artist wiii not seek any
reimbursement or other payment from the City for incurring maintenance and /or repair
costs and expenses related to the Sculpture.
5.2 The City, at its sole cost and expense, shall maintain and repair the Site,
provided however; the City is not required to provide security for the Sculpture. The
City will not seek any reimbursement or other payment from the Artist for incurring
maintenance costs related to the Site.
5.3 If any damage to the Sculpture will render the Sculpture unsafe and
otherwise hazardous to the public health, safety and welfare, then either the Artist will
restore the Sculpture to a safe condition, as determined by the City, acting in its sole
discretion, within two (2) weeks of receipt of the City's determination, in writing; or will
remove or cause the removal of the Sculpture in accordance with Section 4 of this
Agreement. If the City causes the removal (and subsequent storage) of the Sculpture
due to the failure of the Artist to act in a timely manner, as set forth herein, the City will
be deemed to be acting on behalf of the Artist and at the sole cost and expense of the
Artist.
6. LIMITED GRANT OF LICENSE
The Artist hereby grants to the City, without charge to the City, a non - exclusive,
irrevocable, perpetual, worldwide, fully -paid license to make, reproduce, distribute, and
publicly display and perform images of the Sculpture at the Site in any medium,
including, without limitation, photographs and other two- dimensional reproductions, now
known or hereafter created or invented (the "Permitted Uses ") without payment of a
royalty to the Artist. For the purposes of this Agreement, the Permitted Uses shall be
deemed to included, but not be limited to, the foliowing reproductions: (a) in promotional
brochures, pamphlets pertaining to the City and any other similarly descriptive
materials; (b) in exhibition catalogues, books, slides, photographs, postcards, posters,
and calendars; (c) in art magazines, art books, and art and news sections of
newspapers and other periodicals; (d) in general books and magazines not primarily
devoted to art; (e) in materials of or relating to the City s Art in Public Places projects; (f)
in images displayed over the internet in connection with the City; and (g) at any other
City - related or sponsored event, entity or activity authorized by or associated with the
City, including, without limitation, catalogues, posters, web sites, brochures, books,
slides, photographs, drawing, videos, films, advertisements and articles.
7. REMOVAL BY CITY
If the Artist does not remove or cause the removal of the Sculpture within thirty
(30) days written notice of the City to remove the Sculpture, then the Sculpture may be
removed by the City in accordance with the terms and conditions of this Agreement or
otherwise in accordance with California law. If the City removes the Sculpture, then the
City, at its sole and absolute discretion, may dispose of the Sculpture in accordance
with California Civil Code sections 980 -989, inclusive, as may be amended from time to
time.
8. RISK OF LOSS AND INSURANCE
8.1 Excluding normal wear and tear, acts of God or any weather related
damage to the Sculpture, the City agrees to bear the risk of loss or damage, excluding
maintenance and repair costs, to the Sculpture, up to a maximum of the Purchase
Price. The City shall not be responsible or otherwise financially liable for any accident,
theft, vandalism or damage to the Sculpture from any cause beyond the payment of the
Purchase Price to the Artist.
8.2 The Artist, at her sole cost and expense, may obtain and maintain
insurance coverage pertaining to the Sculpture. The City will not provide, or be required
to provide, any reimbursement or other payment to the Artist for procuring this
insurance coverage.
9. HOLD HARMLESS AND INDEMNITY PROVISION
The Artist shall hold harmless, indemnify and defend the City, its elected officials,
officers, employees, agents, boards, commissions, representatives and volunteers
( "Indemnified Parties ") from any and all damages, costs or expense, at law or in equity,
that may at any time arise or be asserted due to injury to property or injury to person
caused by any willful or negligent act by the Artist, or any of her directors, officers,
employees, representatives, agents and volunteers.
Notwithstanding the foregoing, nothing herein shall be construed to require the
Artist to indemnify the Indemnified Parties from any claim arising from the negligence or
willful misconduct of the Indemnified Parties, including any negligence or willful
misconduct in the selection of the Site or the installation of the Sculpture. Nothing in
this indemnity shall be construed as authorizing any award of attorneys' fees in any
action on or to enforce the terms of this Agreement.
10. RESERVATION OF RIGHTS
Notwithstanding any other provision of this Agreement, if the City is unable or
unwilling to make, or to continue to make the Site available due to budgetary
constraints, action of the City Council, insufficient and other unavailable staffing, force
majeure or for any other reason, or for no reason at all, then the Artist and her agents,
representatives, heirs, successors and assigns will not have any right to file an action or
make a claim against the City as a result of such action or inaction.
11. NOTICE
11.1 All notices, demands, requests or approvals, including any change in
mailing address to be given under the terms of this Agreement shall be given in writing,
to City by Artist and conclusively shall be deemed served when delivered personally, or
on the third business day after the deposit thereof in the United States mail, postage
prepaid, first -class mail, addressed as hereinafter provided. All notices, demands,
requests or approvals from Artist to City shall be addressed to City at:
Attn: Cynthia Cowell, Library Services Director
City of Newport Beach
100 Civic Center Dr.
PO Box 1768
Newport Beach, CA 92658
Phone: 949 - 717 -3870
11.2 All notices, demands, requests or approvals from City to Artist shall be
addressed to Artist at:
Attn: Sarah A. Wilkinson
SustainableArtWorks
PO Box 1052
Corona del Mar, 92625
Phone: 714- 300 -8920
12. STANDARD PROVISIONS
12.1 Compliance with all Laws. Artist shall at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted.
12.2 Waiver. A waiver by City of any term, covenant, or condition in the
Agreement shall not be deemed to be a waiver of any subsequent breach of the same
or any other term, covenant or condition.
12.3 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and Agreements of whatsoever kind or nature are merged
herein. No verbal Contract or implied covenant shall be held to vary the provisions
herein.
12.4 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Exhibits attached hereto, the terms of
this Agreement shall govern.
12.5 Amendments. This Agreement may be modified or amended only by a
written document executed by both Artist and City, and approved as to form by the City
Attorney.
12.6 Income Tax Withholding. Artist warrants that she is, for purposes of
income tax withholding, domiciled in the State of California and shall be solely
responsible for the payment of any income tax as required by the State of California.
Artist agrees to defend, indemnify and hold City harmless from any tax collection efforts
by the State of California, or any other governmental taxing authority, against the City.
12.7 Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to
this Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
12.8 Equal Opportunity Employment. Artist represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex, age or any other impermissible basis under law.
12.9 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
12.10 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
12.11 No Attorney's Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorney's fees.
12.12 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: r3//3���3 //%
By: 2L/ 1/1" 4,
A ron' C. Harp Dt�A1201t3
City Attorney
ATTEST:
Date: I'lh , 13
in
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
By: X� */
Keith D. Curry
Mayor
ARTIST: SARAH A. WILKINSON, a sole
proprietor doing business as ( "DBA ")
SustainableArtWorks
Date: Lj /ll�l3
By. SGl/ll -
Sarah A. Wilkinson
Sole Proprietor
Attachments: Exhibit A: Depiction of Sculpture
EXHIBIT A
DEPICTION OF SCULPTURE
= CITY OF
c��W�RT
,= NEWPORT BEACH
City Council Staff Report
Agenda Item No. 15
March 26, 2013
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Library Services Department
Cynthia Cowell, Library Services Director
949 -717 -3810
PREPARED BY: Jana Barbier, Cultural Arts Coordinator
APPROVED:
TITLE: Loan of Sculpture Titled "Uprooted II" for Civic Center
ABSTRACT:
The City Arts Commission has researched prospective public art for the new Civic
Center exterior sites. The architects for the new Civic Center and Park have provided
detailed site maps indicating potential locations for art installations. Artist Sarah A.
Wilkinson has offered to loan a sculpture titled "Uprooted II ", at a lease cost of $750.00
for one year, ($750.00 to be applied to a potential purchase price of $25,000.00). The
Arts Commission recommends the City Council approve the loan of "Uprooted II" and
that it be displayed outside the Council Chambers, as indicated on the attached map,
(Proposed Location #1 on attached PowerPoint presentation).
RECOMMENDATION:
Staff recommends the City Council: (a) Approve and authorize the Mayor to execute the
attached Agreement For Loan and Display of Sculpture Between the City of Newport
Beach and Sarah A. Wilkinson ( "Agreement"); and (b) designate the location for the
placement and display of "Uprooted II" within the Civic Center area.
FUNDING REQUIREMENTS:
The approval of the Agreement will obligate the City to pay $750.00 for a one -year loan
of the sculpture "Uprooted II." This cost will include the preparation of and delivery of
the sculpture to the Civic Center by Ms. Wilkinson. The City will be responsible for any
additional costs necessary to install the sculpture at the selected location. Upon
expiration of the Agreement, the City will have the option to purchase the sculpture for
March 26, 2013
Page 2
an agreed upon price of $25,000.00, minus the $750.00 fee for the one -year loan.
Should the City not desire to purchase the sculpture, the Agreement requires Ms.
Wilkinson to remove the sculpture from the Civic Center without any further
compensation from the City.
DISCUSSION:
The Sculpture, "Uprooted II ", is a depiction of common kelp. Fabricated of stainless
steel and bronze in 2012 by artist Sarah A. Wilkinson, the sculpture's dimensions are 7'
long, 6' wide, 20" high and the piece weighs 135 lbs. Ms. Wilkinson has stated that the
work was designed as a functional seat, allowing the viewer to "contemplate the ocean
view and reflect on the importance of seaweed to the long -term vitality and sustainability
of our ocean environments."
The City Arts Commission's Art in Public Spaces Ad Hoc Subcommittee has been
actively pursuing the identification of a first sculpture for the opening of the Newport
Beach Civic Center and Park. At the March 14, 2013 City Arts Commission meeting,
Secretary Boller presented a PowerPoint presentation on "Uprooted II" (hard copy
attached) with a recommendation from the Art in Public Spaces Ad Hoc Subcommittee
to accept the sculpture loan. Also presented in the PowerPoint were potential site
locations for "Uprooted II" at the new Civic Center. Location #1, which was
recommended by the Arts Commission, is on the West side of the Council Chambers.
Location #2 is immediately adjacent to the Southwest corner of the window wall at the
back of Council Chambers. Location #3, which was recommended by architects and
City staff, is located on the exterior of the Community Development Office area,
adjacent to the Civic Green.
Following a discussion, the Arts Commission voted to recommend that the City Council
approve an agreement with Ms. Wilkinson for the loan of "Uprooted II" to the City of
Newport Beach for display at the new Civic Center for $750.00 a year. If approved by
the City Council, Ms. Wilkinson and City staff will make necessary arrangements for the
sculpture to be installed by May 4, 2013.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find the approval of the attached Agreement and
placement of "Uprooted II" at the new Civic Center is not subject to the California
Environmental Quality Act ( "CEQA ") pursuant to Section 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 to have a significant effect on the environment.
March 26, 2013
Page 3
NOTICING:
This 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).
by:
i Cowell,
Services Director
Attachments: A. PowerPoint Presentation on "Uprooted II" by Sarah A. Wilkinson
(includes images of the sculpture and site identification: Proposed
Location #1)
B. Agreement For Loan And Display of Sculpture Between the City of
Newport Beach and Sarah A. Wilkinson
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AGREEMENT FOR LOAN AND DISPLAY OF SCULPTURE
BETWEEN THE CITY OF NEWPORT BEACH AND
SARAH A. WILKINSON
This Agreement is made this 26th day of March, 2013 by and between the CITY
OF NEWPORT BEACH, a California municipal corporation and charter city ( "City "), and
SARAH A. WILKINSON, a sole proprietor doing business as ( "DBA ")
SustainableArtWorks ( "Artist "), whose principal place of business is Post Office Box
1052, Corona del Mar, CA 92625 and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. The Artist agrees to loan to City and City agrees to borrow from the Artist, the
sculpture entitled "Uprooted II" ( "Sculpture "), as depicted in Exhibit A, attached
hereto and incorporated herein by reference, for display at the City's new Civic
Center located at 100 Civic Center Drive, Newport Beach, California ( "Civic
Center').
C. The Artist represents and warrants she holds all rights, title and interests therein
or otherwise possesses the right of ownership and control of the Sculpture.
D. In accordance with City Council Policy 1 -9, the City's Arts Commission has
identified and selected an Artist for an Art in Public Places Project at the Civic
Center and has made said recommendation to the City Council for
Consideration.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
The Term of this Agreement shall commence on the Effective Date and shall
terminate on March 25, 2014, unless terminated earlier or extended by written
amendment to this Agreement.
2. HONORARIUM
2.1 City shall compensate Artist with an honorarium in the amount of Seven
Hundred and Fifty Dollars and 00/100 ($750.00) per year for the loan of the Sculpture to
the City. The first year's honorarium shall be paid by City two (2) weeks after delivery of
the Sculpture by Artist to the Civic Center and City's acceptance. Should the term of
this Agreement be extended, the honorarium for any subsequent year shall be paid
within two (2) weeks of the anniversary date of this Agreement.
2.2 Artist shall provide the City with the option to purchase the Sculpture,
including without limitation all rights, trademarks, copyrights, title and interests therein,
at an agreed upon purchase price of Twenty -Five Thousand Dollars and 00/100
($25,000.00) minus any amount the City has already paid to the Artist as an honorarium
under the terms of this Agreement ( "Purchase Price ").
3. EXHIBITION SITE
The exhibition site for the Sculpture will be at a public location at the Civic Center
to be determined at the City's sole and absolute discretion (the "Site ").
4. INSTALLATION AND REMOVAL
4.1 The Artist, at her sole cost and expense, shall be responsible for the
preparation, transportation and delivery of the Sculpture to the Site. The Artist, at her
sole cost and expense, will also undertake the subsequent removal of the Sculpture
upon expiration of this Agreement should the City not exercise its option to purchase the
Sculpture as provided for in paragraph 2.2 above.
4.2 The City, at its sole cost and expense, shall install the Sculpture at the
Site. The City shall not seek reimbursement of any of its costs and expenses that it
might incur in installing the Sculpture at the Site.
4.3 After the Sculpture is installed by the City at the Site, the City shall cause
a plaque to be placed near the Site stating the title of the Sculpture and the Artist's
name. The exact size, color and location of the plaque will be determined by the City in
its sole and absolute discretion.
4.4 The Artist will obtain the Library Services Director's written approval of the
date and time of delivery and, if necessary, the subsequent removal of the Sculpture
5. MAINTENANCE AND REPAIRS
5.1 The Artist, at her sole cost and expense, shall maintain and repair the
Sculpture during the term of this Agreement. The Artist will not seek any
reimbursement or other payment from the City for incurring maintenance and /or repair
costs and expenses related to the Sculpture.
5.2 The City, at its sole cost and expense, shall maintain and repair the Site,
provided however; the City is not required to provide security for the Sculpture. The
City will not seek any reimbursement or other payment from the Artist for incurring
maintenance costs related to the Site.
5.3 If any damage to the Sculpture will render the Sculpture unsafe and
otherwise hazardous to the public health, safety and welfare, then either the Artist will
restore the Sculpture to a safe condition, as determined by the City, acting in its sole
discretion, within two (2) weeks of receipt of the City s determination, in writing; or will
remove or cause the removal of the Sculpture in accordance with Section 4 of this
Agreement. If the City causes the removal (and subsequent storage) of the Sculpture
due to the failure of the Artist to act in a timely manner, as set forth herein, the City will
be deemed to be acting on behalf of the Artist and at the sole cost and expense of the
Artist.
6. LIMITED GRANT OF LICENSE
The Artist hereby grants to the City, without charge to the City, a non - exclusive,
irrevocable, perpetual, worldwide, fully -paid license to make, reproduce, distribute, and
publicly display and perform images of the Sculpture at the Site in any medium,
including, without limitation, photographs and other two- dimensional reproductions, now
known or hereafter created or invented (the "Permitted Uses') without payment of a
royalty to the Artist. For the purposes of this Agreement, the Permitted Uses shall be
deemed to included, but not be limited to, the following reproductions: (a) in promotional
brochures, pamphlets pertaining to the City and any other similarly descriptive
materials; (b) in exhibition catalogues, books, slides, photographs, postcards, posters,
and calendars; (c) in art magazines, art books, and art and news sections of
newspapers and other periodicals; (d) in general books and magazines not primarily
devoted to art; (e) in materials of or relating to the City's Art in Public Places projects; (f)
in images displayed over the internet in connection with the City; and (g) at any other
City- related or sponsored event, entity or activity authorized by or associated with the
City, including, without limitation, catalogues, posters, web sites, brochures, books,
slides, photographs, drawing, videos, films, advertisements and articles.
7. REMOVAL BY CITY
If the Artist does not remove or cause the removal of the Sculpture within thirty
(30) days written notice of the City to remove the Sculpture, then the Sculpture may be
removed by the City in accordance with the terms and conditions of this Agreement or
otherwise in accordance with California law. If the City removes the Sculpture, then the
City, at its sole and absolute discretion, may dispose of the Sculpture in accordance
with California Civil Code sections 980 -989, inclusive, as may be amended from time to
time.
8. RISK OF LOSS AND INSURANCE
8.1 Excluding normal wear and tear, acts of God or any weather related
damage to the Sculpture, the City agrees to bear the risk of loss or damage, excluding
maintenance and repair costs, to the Sculpture, up to a maximum of the Purchase
Price. The City shall not be responsible or otherwise financially liable for any accident,
theft, vandalism or damage to the Sculpture from any cause beyond the payment of the
Purchase Price to the Artist.
8.2 The Artist, at her sole cost and expense, may obtain and maintain
insurance coverage pertaining to the Sculpture. The City will not provide, or be required
to provide, any reimbursement or other payment to the Artist for procuring this
insurance coverage.
9. HOLD HARMLESS AND INDEMNITY PROVISION
The Artist shall hold harmless, indemnify and defend the City, its elected officials,
officers, employees, agents, boards, commissions, representatives and volunteers
( "Indemnified Parties ") from any and all damages, costs or expense, at law or in equity,
that may at any time arise or be asserted due to injury to property or injury to person
caused by any willful or negligent act by the Artist, or any of her directors, officers,
employees, representatives, agents and volunteers.
Notwithstanding the foregoing, nothing herein shall be construed to require the
Artist to indemnify the Indemnified Parties from any claim arising from the negligence or
willful misconduct of the Indemnified Parties, including any negligence or willful
misconduct in the selection of the Site or the installation of the Sculpture. Nothing in
this indemnity shall be construed as authorizing any award of attorneys' fees in any
action on or to enforce the terms of this Agreement.
10. RESERVATION OF RIGHTS
Notwithstanding any other provision of this Agreement, if the City is unable or
unwilling to make, or to continue to make the Site available due to budgetary
constraints, action of the City Council, insufficient and other unavailable staffing, force
majeure or for any other reason, or for no reason at all, then the Artist and her agents,
representatives, heirs, successors and assigns will not have any right to file an action or
make a claim against the City as a result of such action or inaction.
11. NOTICE
11.1 All notices, demands, requests or approvals, including any change in
mailing address to be given under the terms of this Agreement shall be given in writing,
to City by Artist and conclusively shall be deemed served when delivered personally, or
on the third business day after the deposit thereof in the United States mail, postage
prepaid, first -class mail, addressed as hereinafter provided. All notices, demands,
requests or approvals from Artist to City shall be addressed to City at:
Attn: Cynthia Cowell, Library Services Director
City of Newport Beach
100 Civic Center Dr.
PO Box 1768
Newport Beach, CA 92658
Phone: 949 - 717 -3870
11.2 All notices, demands, requests or approvals from City to Artist shall be
addressed to Artist at:
Attn: Sarah A. Wilkinson
SustainableArtWorks
PO Box 1052
Corona del Mar, 92625
Phone: 714- 300 -8920
12. STANDARD PROVISIONS
12.1 Compliance with all Laws. Artist shall at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted.
12.2 Waiver. A waiver by City of any term, covenant, or condition in the
Agreement shall not be deemed to be a waiver of any subsequent breach of the same
or any other term, covenant or condition.
12.3 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and Agreements of whatsoever kind or nature are merged
herein. No verbal Contract or implied covenant shall be held to vary the provisions
herein.
12.4 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Exhibits attached hereto, the terms of
this Agreement shall govern.
12.5 Amendments. This Agreement may be modified or amended only by a
written document executed by both Artist and City, and approved as to form by the City
Attorney.
12.6 Income Tax Withholding. Artist warrants that she is, for purposes of
income tax withholding, domiciled in the State of California and shall be solely
responsible for the payment of any income tax as required by the State of California.
Artist agrees to defend, indemnify and hold City harmless from any tax collection efforts
by the State of California, or any other governmental taxing authority, against the City.
12.7 Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to
this Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
12.8 Equal Opportunity Employment. Artist represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex, age or any other impermissible basis under law.
12.9 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
12.10 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
12.11 No Attorney's Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorney's fees.
12.12 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 3/a0/)3
By:
A o C. Harp 61201'13
City Attorney
ATTEST:
Date:
zz
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A California municipal corporation
By:
Keith D. Curry
Mayor
ARTIST: SARAH A. WILKINSON, a sole
proprietor doing business as ( "DBA ")
SustainableArtWorks
Date:
By:
Sarah A. Wilkinson
Sole Proprietor
Attachments: Exhibit A: Depiction of Sculpture
EXHIBIT A
DEPICTION OF SCULPTURE