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HomeMy WebLinkAboutC-6250(C) - MOU and Loan Agreement - Double Whitea 0 Vn N MEMORANDUM OF UNDERSTANDING AND LOAN AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND BERTIL PETERSSON THIS MEMORANDUM OF UNDERSTANDING AND LOAN AGREEMENT ("Agreement') is made on this 20th day of July, 2015, by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city, located at 100 Civic Center Drive, Newport Beach, California 92660 ("City") and Bertil Petersson, 630 N. Sepulveda Blvd. #602, EI Segundo, CA 90245 ("Artist'). RECITALS A. The City desires to mount a temporary public exhibition at the Civic Center Park located at 100 Civic Center Drive, Newport Beach, California ("Exhibition"), consisting in part of a certain work titled Double White ("Art Work") created by Artist, a description of which is attached as Exhibit A to this Agreement, and incorporated herein by reference. B. Artist owns the Art Work and desires to lend it to the City for the purpose of the Exhibition. C. Artist warrants that he/she possesses all rights and authority necessary to lend the Art Work to City and to enter into this Agreement. NOW, THEREFORE, in consideration of the foregoing and the promises contained herein, the City and Artist mutually agree as follows: 1. TERM AND EXHIBITION PERIOD 1.1 The term of this Agreement shall commence on the Effective Date and shall terminate on September 30, 2017, unless terminated earlier or extended by written amendment to this Agreement. 1.2 The Exhibition Period shall take place from August 10, 2015 — August 31, 2017 ("Exhibition Period"), unless extended or reduced by City. 2. NATURE OF SCULPTURE EXHIBITION The Exhibition shall include the Art Work, as further described in "Exhibit A." The Exhibition shall take place in the Civic Center Park located adjacent to the City of Newport Beach Civic Center at 100 Civic Center Drive, Newport Beach, California ("Location"). 3. HONORARIUM 3.1 The City agrees to compensate the Artist with an honorarium in the amount of Three Thousand Five Hundred Dollars and 00/100 ($3,500.00) which shall constitute full compensation for the loan of the Art Work to the City and any associated Artist costs during the term of the Agreement ("Honorarium"). City agrees to pay the Artist one half (1/2) of the Honorarium upon execution of this Agreement and the remaining one half (1/2) of the Honorarium upon confirmation of scheduled pick-up of the Art Work at the conclusion of the Exhibition Period. Artist shall submit invoices with the Artist name and title of the Art Work to the City upon execution of the Agreement and upon confirmation of the scheduled pick-up of the Art Work. The City shall make payments within thirty (30) calendar days upon approval of the invoice. 3.2 Art Work may be available for purchase during the Exhibition Period. Artists who wish to make their Art Work available for sale during the Exhibition Period agree that Art Work shall not be de -installed until the conclusion of the Exhibition Period, unless removed earlier by the City. The City will not request a commission from the sale of the Art Work. 4. SHIPPING OF ART WORK 4.1 Artist is encouraged to contract with a professional art handler to pack the Art Work for shipment to and from the Location. Artist shall bear all costs and risks of loss associated with packing and shipping the Art Work to and from the Location. 4.2 Artist shall cause the Art Work to ship to the Location on or by August 1 — 17, 2015 at a mutually agreed upon date and time. 4.3 Artist shall cause the Art Work to be picked up at the Location on or by September 30, 2017 at a mutually agreed upon date and time. 4.4 If the Artist is unable to accept the Art Work upon the conclusion of the Exhibition Period or fails to take control of the Art Work immediately upon de -installation of the Art Work, the City may place the Art Work in public storage for the account of Artist or may retain possession and charge storage fees. City shall also maintain insurance on the Art Work during the storage period. The City shall have a lien for the storage fees and cost of insurance during the storage period against the Art Work. 4.5 If the Art Work has not been reclaimed after thirty (30) calendar days from the termination or expiration of this Agreement, the City shall have the right and power to sell the Art Work at auction to satisfy the lien and associated costs, following the procedure provided in Section 3052 of the California Civil Code, or any successor statute. At any such auction the City shall have the right to bid on the Art Work. 4.6 If there is a change in ownership of the Art Work during the term of the Agreement, the City may require that the new owner establish the legal right to receive the Art Work by providing the City with satisfactory proof of ownership before the City will relinquish the Art Work to him or her. Artist shall cause the new owner to be aware of, and bound by, this Agreement. BERTIL PETERSSON Page 2 5. INSTALLATION AND DE -INSTALLATION 5.1 City shall bear the costs of installation and de -installation of the Art Work. Installation costs commence upon City acceptance of delivery of the Art Work at the Location. 5.2 Should Artist elect to be on Location for installation or de -installation, Artist hereby releases and discharges City from any and all claims of personal injury arising from Artist's participation in the installation or de -installation. Should Artist seek to have a representative or employee on site for installation or de -installation, such person(s) shall sign a separate liability waiver. 6. CARE AND SAFEKEEPING 6.1 Artist understands that during the Exhibition Period the Art Work will be located in an unsecured public location along a major thoroughfare, easily accessible to the public and open to the elements. 6.2 Artist understands that the City's maintenance crews may use routine watering and gardening equipment around the Art Work to maintain the landscaped areas. Artist will not hold the City responsible for any unintentional damage that may occur from the gardening equipment. 6.3 The City shall exercise the same care with respect to the Art Work as it does in safekeeping of comparable property of its own at such locations. 7. MAINTENANCE AND REPAIRS 7.1 The Artist, at their sole cost and expense, shall maintain and repair the Art Work during the Exhibition Period. The Artist will not seek any reimbursement or other payment from the City for incurring maintenance and/or repair costs and expenses related to the Art Work. 7.2 The City, at its sole cost and expense, shall maintain and repair the Location, provided however; the City is not required to provide security for the Art Work. The City will not seek any reimbursement or other payment from the Artist for incurring maintenance costs related to the Location. 7.3 If any damage to the Art Work will render the Art Work unsafe and otherwise hazardous to the public health, safety and welfare, then either the Artist will restore the Art Work to a safe condition, as determined by the City Project Administrator, in writing; or will remove or cause the removal of the Art Work in accordance with Section 5 of this Agreement. If the City causes the removal (and subsequent storage) of the Art Work due to the failure of the Artist to act in a timely manner, as set forth herein, the City will be deemed to be acting on behalf of the Artist and at the sole cost and expense of the Artist. BERTIL PETERSSON Page 3 8. RISK OF LOSS AND INSURANCE 8.1 City shall not be responsible for normal wear and tear, acts of God or any weather related damage to the Art Work. City agrees to bear the risk of loss or damage, excluding maintenance and repair costs, to the Art Work, up to a maximum of the fair market value of the Art Work immediately prior to the damage. The City shall not be responsible or otherwise financially liable for any accident, theft, vandalism or damage to the Art Work from any cause beyond the payment of the above amount to the Artist. 8.2 The City shall procure and maintain insurance against claims for injuries to persons or damages to property which may arise from or in connection to the Art Work supplied to the City but only with respect to the City's liability. 8.3 The City shall procure and maintain fine arts coverage for any damage to the Art Work. Coverage shall apply to unscheduled fine arts in the City's care, custody or control not to exceed a loss amount of Two Million Five Hundred Thousand Dollars and 00/100 ($2,500,000). The City will not be held responsible for loss resulting from a Flood or Earthquake. 8.4 Coverage provided by the City shall remain in force and effect during the term of the Agreement and the cost shall be borne by the City. 8.5 Artist is encouraged to purchase a commercial general liability policy on an occurrence basis in the amount of One Million Dollars and 00/100 ($1,000,000) per occurrence and Two Million Dollars and 00/100 ($2,000,000) in the general aggregate to protect the Artist from claims of bodily injury or property damage. Additionally, if the value of submitted Art Work exceeds the fine arts limit purchased by the City, it is the City's recommendation that the Artist purchase a property damage/fine arts policy covering the value of the Art Work. The cost of such insurance(s) shall be borne by the Artist. 8.6 Upon execution of this Agreement, Artist acknowledges and agrees that he/ she are displaying the Art Work at the Location at his/her own risk. 9. HOLD HARMLESS AND INDEMNITY PROVISION 9.1 The Artist shall hold harmless, indemnify and defend the City, its elected officials, officers, employees, agents, boards, commissions, representatives and volunteers ("Indemnified Parties") from any and all damages, costs or expense, at law or in equity, that may at any time arise or be asserted due to injury to property or injury to person caused by any willful or negligent act by the Artist, or any of his/her directors, officers, employees, representatives, agents and volunteers. 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require the Artist to indemnify the Indemnified Parties from any claim arising from the negligence or willful misconduct of the Indemnified Parties, including any negligence or willful misconduct in the selection of the Location site or the installation of the Art Work. BERTIL PETERSSON Page 4 Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. 10. EXHIBITION CATALOGUE —ADVERTISING AND USE OF IMAGES 10.1 The City shall have the right to reproduce, distribute, and/or or display representations of the Art Work in any non-commercial manner whatsoever. For the purpose of this limitation, the reproduction, representation, distribution and display of the Art Work or materials, designed solely to promote the City, its services, or to attract visitors or businesses, shall be deemed non-commercial. 10.2 It is expected that City may produce publications and other material in connection with the Exhibition. In such an event, City shall first obtain the Artist's consent. If such consent is granted, all such materials or publications shall be subject to Artist's approval, which approval will not be unreasonably withheld. 10.3 Upon request, City shall provide Artist with copies of materials, articles, reviews or features in which the Art Work is represented. 10.4 City reserves the right to create its own marketing collateral. 11. CONTRACT ADMINISTRATION 11.1 City's Representative. Unless otherwise designated in writing, the Library Services Director shall serve as the City's Project Administrator for the display of the Art Work under this Agreement. All activities performed under this Agreement shall be coordinated with this person or his/her designee. 11.2 Artist's Representative. Diana Markessinis shall serve as the Artist's Project Administrator for the display of the Art Work under this Agreement. All activities performed under this Agreement shall be coordinated with this person. 12. NOTICES 12.1 All notices, demands, requests or approvals, including any change in mailing address to be given under the terms of this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Artist to City shall be addressed to City at: Tim Hetherton, Library Services Director City of Newport Beach 1000 Avocado Avenue Newport Beach, CA 92660 BERTIL PETERSSON Page 5 12.2 All notices, demands, requests or approvals from City to Artist shall be addressed to Artist at: Bertil Petersson 630 N. Sepulveda Blvd. #602 EI Segundo, CA 90245 13. STANDARD PROVISIONS 13.1 Recitals. City and Artist acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 13.2 Compliance with all Laws. Artist shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Art Work prepared by Artist shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator. 13.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 13.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 13.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Exhibit to this Agreement, the terms of this Agreement shall govern. 13.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either parry by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 13.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Artist and City and approved as to form by the City Attorney. 13.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. BERTIL PETERSSON Page 6 13.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 13.10 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 13.11 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. 13.12 Authority to Enter Into Agreement. Artist warrants that Artist is the owner of the Art Work and has all rights and permissions to lend the Art Work to City for public exhibition and to enter into this Agreement. City warrants that it is duly authorized to enter into this Agreement and perform its obligations hereunder, and has received all necessary third party consents and approvals to perform such obligations. [SIGNATURES ON NEXT PAGE] BERTIL PETERSSON Page 7 IN WITNESS WHEREOF, the parties have executed this Agreement on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFI Date: By: ��CA /-\, AAroh C. Harp �0 City Attorney ATTEST: G / 4 /� Date: D< By: C Wu 41 Leilani I. Brown City Clerk ATTACHMENT: Exhibit A: CITY OF NEWPORT BEACH, a California municipal corporation Date: BY:�- �� Dave iff City Manager ARTIST: Bertil Petersson Date: '7 17— -:) h 7- B Bertil Petersson [END OF SIGNATURES] Description of Art Work BERTIL PETERSSON Page 8 EXHIBIT A DESCRIPTION OF ART WORK Bertil Petersson Double White Size: 60" x 48" x 42" Weight: 400 lbs. Medium: Painted steel Date Completed: 2013 Location: EI Segundo Honorarium: $3,500 For sale: $20,000 BERTIL PETERSSON Page A-1