HomeMy WebLinkAbout17 - MOU and Loan Agreement with Nancy Lynn Gardner for the Sculpture A Novel IdeaQ SEW Pp�T
CITY OF
z NEWPORT BEACH
c�<,FORN'P City Council Staff Report
November 19, 2024
Agenda Item No. 17
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Melissa Hartson, Library Services Director - 949-717-3801,
mhartson@newportbeachca.gov
PREPARED BY: Rebecca Lightfoot, Library Services Manager - 949-717-3819,
rightfoot@newportbeachca.gov
TITLE: Memorandum of Understanding and Loan Agreement with
Nancy Lynn Gardner for the Sculpture A Novel Idea
ABSTRACT:
Artist Craig Gray's sculpture, A Novel Idea, was part of Phase VII of the Sculpture
Exhibition at Civic Center Park. Newport Beach resident Nancy Gardner acquired the
sculpture and will lend it to the City of Newport Beach for a period of 20 years. The
sculpture will be displayed at the new Balboa Branch Library.
RECOMMENDATIONS:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
b) Approve a Memorandum of Understanding and Loan Agreement between the City of
Newport Beach and Nancy Lynn Gardner for the exhibition of the sculpture, A Novel
Idea; and
c) Approve the placement of A Novel Idea in the Library Entry Plaza of the new Balboa
Branch Library.
DISCUSSION:
A Novel Idea, a sculpture created by artist Craig Gray, was one of the works featured in
Phase VII of the Newport Beach Sculpture Exhibition in Civic Center Park. Newport Beach
resident Nancy Gardner acquired the piece and is offering it for loan to the City of Newport
Beach. Library staff worked with the City Attorney's Office to draft a Memorandum of
Understanding and Loan Agreement (Attachment A).
The sculpture meets the criteria as established in City Council Policy 1-9, Art in Public
Places (Attachment B). Additionally, City Council Policy 1-11 Acquisition of Art by the City
of Newport Beach (Attachment C) requires "all proposals to donate, exhibit, loan, sell or
commission Art to the City ... shall be reviewed by the Arts Commission for
recommendation to the City Council."
17-1
Memorandum of Understanding and Loan Agreement with
Nancy Lynn Gardner for the Sculpture A Novel Idea
November 19, 2024
Page 2
The City Arts Commission (Commission) approved the loan of the sculpture at its
April 11, 2024 meeting. At its May 9, 2024 meeting, the Commission approved
recommending to the City Council that the sculpture be placed at the new Balboa Branch
Library location. City Council approved a design concept layout for this new facility at its
May 14, 2024 meeting and the approved design includes a Library Entry Plaza. The
Commission recommends that A Novel Idea be installed in the Library Entry Plaza upon
completion of the new facility.
In accordance with City Council Policy 1-11, which requires the Commission to "advise
the City Council regarding appropriate City property or City buildings for display of Art, in
conjunction with the City commission, committee, board and/or department which has
responsibility for planning or maintaining the proposed location", the Board of Library
Trustees, at its July 16, 2024 meeting, also approved recommending to the City Council
that the sculpture be placed at the new Balboa Branch Library location.
Library staff has coordinated with the Public Works Department to store the sculpture until
the new branch library and fire station project is completed. Storing the piece, rather than
temporarily siting the work, reduces costs and prevents risk of damage by decreasing the
amount of times the sculpture must be disassembled, relocated and reassembled.
21k*Td±\■I►TAI:YTo19
There is no fiscal impact related to this loan as the MOU states the "Owner agrees to loan
the Art Work to the City for free. There shall be no fees, reimbursement, royalties, or
expenses of any nature whatsoever due to Owner arising out of this Agreement."
However, the City shall bear the costs of installation and de -installation of the Art Work,
which requires City staff to transport and install the sculpture at the designated site. These
costs will be absorbed within the existing operating budget.
ENVIRONMENTAL REVIEW -
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).
ATTACHMENTS:
Attachment A — Memorandum of Understanding
Attachment B — City Council Policy 1-9, Art in Public Places
Attachment C — City Council Policy 1-11, Acquisition of Art by the City of Newport Beach
17-2
ATTACHMENT A
MEMORANDUM OF UNDERSTANDING AND LOAN AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND
NANCY LYNN GARDNER
THIS MEMORANDUM OF UNDERSTANDING AND LOAN AGREEMENT ("Agreement")
is made on this 1st day of September, 2024, by and between the CITY OF NEWPORT
BEACH, a California municipal corporation and charter city, located at 100 Civic Center
Drive, Newport Beach, California 92660 ("City") and NANCY GARDNER, an individual,
whose address is 323 Jasmine, Corona del Mar, California 92625 ("Owner").
RECITALS
A. The City desires to mount a temporary public exhibition at the Balboa Branch
Library located at 100 East Balboa Boulevard, Newport Beach, California
("Exhibition"), consisting of a certain work titled A NOVEL IDEA ("Art Work")
created by artist Craig Gray, a description of which is attached as Exhibit A to
this Agreement, and incorporated herein by reference.
B. Owner owns the Art Work and desires to lend it to the City for the purpose of
the Exhibition.
C. Owner warrants that he/she possesses all rights and authority necessary to
lend the Art Work to City and to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the promises contained
herein, the City and Owner mutually agree as follows:
1. TERM AND EXHIBITION PERIOD
1.1 The term of this Agreement shall commence on the Effective Date and shall
terminate on 31 st day of August, 2044, unless terminated earlier, or extended by written
amendment to this Agreement.
1.2 The Exhibition shall commence from the time of installation of the Art Work
at the Location and continue until either party hereto provides written notice to the other
party of its decision to end the Exhibition ("Exhibition Period").
2. NATURE OF SCULPTURE EXHIBITION
The Exhibition shall include the Art Work, as further described in Exhibit A. The
Exhibition shall take place at the Balboa Branch Library at 100 East Balboa Boulevard,
Newport Beach, California ("Location").
3. HONORARIUM
3.1 Owner desires that the City mount the Exhibition, and in exchange for the
City's agreement to mount the Exhibition, Owner agrees to loan the Art Work to the City
17-3
for free. There shall be no fees, reimbursement, royalties, or expenses of any nature
whatsoever due to Owner arising out of this Agreement ("Honorarium").
3.2 The Owner may make the Art Work available for purchase during the
Exhibition Period. Owner agrees that the Art Work shall not be de -installed until the
conclusion of the Exhibition Period, unless removed earlier by the City or approved by the
City in a prior writing. The City will not request a commission from the sale of the Art
Work.
4. SHIPPING OF ART WORK
4.1 City shall cause the Art Work to ship to the Location at a mutually agreed
upon date and time. City shall bear all costs associated with transport of the Art Work to
the Location.
4.2 If the Owner is unable to accept the Art Work upon the conclusion of the
Exhibition Period or fails to take control of the Art Work immediately upon de -installation
of the Art Work, the City may place the Art Work in public storage or may retain
possession and charge storage fees. City .may obtain and/or maintain insurance on the
Art Work during the storage period. The City shall have a lien for the storage fees and
any cost of insurance during the storage period against the Art Work.
4.3 If the Art Work has not been reclaimed after thirty (30) calendar days from
the termination or expiration of this Agreement, the City shall have the right and power to
sell the Art Work at auction to satisfy the lien and associated costs, following the
procedure provided in Section 3052 of the California Civil Code, or any successor statute.
At any such auction the City shall have the right to bid on the Art Work.
4.4 If there is a change in ownership of the Art Work during the term of the
Agreement, the City may require that the new owner establish the legal right to receive
the Art Work by providing the City with satisfactory proof of ownership before the City will
relinquish the Art Work to him or her. Owner shall cause the new owner to be aware of,
and bound by, this Agreement.
5. INSTALLATION AND DE -INSTALLATION
5.1 City shall bear the costs of installation and de -installation of the Art Work.
5.2 Should Owner elect to be on Location for installation or de -installation,
Owner hereby releases and discharges City from any and all claims of personal injury
arising from Owner's participation in the installation or de -installation. Should Owner seek
to have a representative or employee on site for installation or de -installation, such
person(s) shall sign a separate liability waiver.
NANCY LYNN GARDNER Page 2
17-4
6. CARE AND SAFEKEEPING
6.1 Owner understands that during the Exhibition Period the Art Work will be
located in an unsecured public location along a major thoroughfare, easily accessible to
the public and open to the elements.
6.2 Owner understands that the City's maintenance crews may use routine
watering and gardening equipment around the Art Work to maintain the landscaped
areas. Owner will not hold the City responsible for any unintentional damage that may
occur from the gardening equipment.
6.3 The City shall exercise the same care with respect to the Art Work as it does
in safekeeping of comparable property of its own at such locations.
7. MAINTENANCE AND REPAIRS
7.1 The Owner, at their sole cost and expense, shall maintain and repair the Art
Work during the Exhibition Period. The Owner will not seek any reimbursement or other
payment from the City for incurring maintenance and/or repair costs and expenses related
to the Art Work.
7.2 The City, at its sole cost and expense, shall maintain and repair the
Location, provided however; the City is not required to provide security for the Art Work.
The City will not seek any reimbursement or other payment from the Owner for incurring
maintenance costs related to the Location.
7.3 If any damage to the Art Work will render the Art Work unsafe and otherwise
hazardous to the public health, safety and welfare, then either: the Owner will restore the
Art Work to a safe condition, as determined by the City Project Administrator, in writing;
or, will remove or cause the removal of the Art Work in accordance with Section 5 of this
Agreement. If the City causes the removal (and subsequent storage) of the Art Work due
to the failure of the Owner to act in a timely manner, as set forth herein, the City will be
deemed to be acting on behalf of the Owner and at the sole cost and expense of the
Owner.
8. RISK OF LOSS AND INSURANCE
8.1 City shall not be responsible for normal wear and tear, acts of God or any
weather related damage to the Art Work. City agrees to bear the risk of loss or damage,
excluding maintenance and repair costs, to the Art Work, up to a maximum of the fair
market value of the Art Work immediately prior to the damage. The City shall not be
responsible or otherwise financially liable for any accident, theft, vandalism or damage to
the Art Work from any cause beyond the payment of the above amount to the Owner.
8.2 The City shall procure and maintain insurance against claims for injuries to
persons or damages to property which may arise from or in connection to the Art Work
supplied to the City, but only with respect to the City's liability.
NANCY LYNN GARDNER Page 3
17-5
8.3 The City shall procure and maintain fine arts coverage for any damage to
the Art Work. Coverage shall apply to unscheduled fine arts in the City's care, custody
or control not to exceed a loss amount of Two Million Five Hundred Thousand Dollars
and 00/100 ($2,500,000). The City will not be held responsible for loss resulting from a
Flood or Earthquake.
8.4 Coverage provided by the City shall remain in force and effect during the
term of the Agreement and the cost shall be borne by the City.
8.5 Owner is encouraged to purchase. a commercial general liability policy on
an occurrence basis in the amount of One Million Dollars and 00/100 ($1,000,000) per
occurrence and Two Million Dollars and 00/100 ($2,000,000) in the general aggregate to
protect the Owner from claims of bodily injury or property damage. Additionally, if the
value of submitted Art Work exceeds the fine arts limit purchased by the City, it is the
City's recommendation that the Owner purchase a property damage/fine arts policy
covering the value of the Art Work. The cost of such insurance(s) shall be borne by the
Owner.
8.6 Upon execution of this Agreement, Owner acknowledges and agrees that
Owner is displaying the Art Work at the Location at Owner's own risk.
9. HOLD HARMLESS AND INDEMNITY PROVISION
9.1 The Owner shall hold harmless, indemnify and defend the City, its elected
officials, officers, employees, agents, boards, commissions, representatives and
volunteers ("Indemnified Parties") from any and all damages, costs or expense, at law or
in equity, that may at any time arise or be asserted due to injury to property or injury to
person caused by any willful or negligent act by the Owner, or any of Owner's directors,
officers, employees, representatives, agents and volunteers.
9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
the Ownerto indemnifythe Indemnified Parties from any claim arising from the negligence
or willful misconduct of the Indemnified Parties, including any negligence or willful
misconduct in the selection of the Location site or the installation of the Art Work. Nothing
in this indemnity shall be construed as authorizing any award of attorneys' fees in any
action on or to enforce the terms of this Agreement.
10. EXHIBITION, ADVERTISING AND USE OF IMAGES
10.1 The City shall have the right to exhibit the Art Work during the Exhibition
Period as set forth in this Agreement, and additionally, to reproduce, distribute, and/or or
display images or representations of the Art Work in any non-commercial manner
whatsoever. The reproduction, representation, distribution and display of the Art Work or
materials to promote the City, its services, or to attract visitors or businesses, shall be
deemed a non-commercial manner.
NANCY LYNN GARDNER Page 4
17-6
10.2 It is expected that City may produce publications and other material in
connection with the Exhibition. Owner may limit the City's use of Owner's name and/or
use of the Art Work in such materials or publications by notifying the City in a prior writing.
10.3 Upon request, City shall provide Owner with copies of materials, articles,
reviews or features in which the Art Work is represented.
10.4 City reserves the right to create its own marketing collateral.
11. CONTRACT ADMINISTRATION
11.1 City's Representative. Unless otherwise designated in writing, the Library
Services Director shall serve as the City's Project Administrator for the display of the Art
Work under this Agreement. All activities performed under this Agreement shall be
coordinated with this person or,his/her designee.
11.2 Owner's Representative. Nancy Gardner shall serve as the Owner's Project
Administrator for the display of the Art Work under this Agreement. All activities
performed under this Agreement shall be coordinated with this person.
12. NOTICES
12.1 All notices, demands, requests or approvals, including any change in
mailing address to be given under the terms of this Agreement shall be given in writing
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided. All notices, demands, requests or
approvals from Owner to City shall be addressed to City at:
Library Services Director
City of Newport Beach
1000 Avocado Avenue
Newport Beach, CA 92660
12.2 All notices, demands, requests or approvals from City to Owner shall be
addressed to Owner at:
Nancy Lynn Gardner
323 Jasmine
Corona del Mar, CA 92625
13. POSSESSORY INTEREST TAXES
Pursuant to California Revenue and Tax Code Section 107 et seq., a private party
entering into a written contract with any local public entity of government whereby a
possessory interest subject to property taxation is created could be subject to, and
responsible for, the payment of property taxes levied on the interest. Both parties to this
Agreement agree that this Agreement is not intended to create a possessory interest or
NANCY LYNN GARDNER Page 5
17- 7
any other interest in land whatsoever. Nevertheless, in the event that a public agency
were to determine that a possessory interest subject to property taxation is created by
this Agreement, Owner shall be solely responsible for any and all possessory interest
taxes.
14. STANDARD PROVISIONS
14.1 Recitals. City and Owner acknowledge that the above Recitals are true and
correct and are hereby incorporated by reference into this Agreement.
14.2 Compliance with all Laws. Owner shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Art Work prepared by Owner shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator.
14.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
14.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, .and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
14.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Exhibit to this Agreement, the terms of
this Agreement shall govern.
14.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
14.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Owner and City and approved as to form by the City
Attorney.
14.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
14.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
NANCY LYNN GARDNER Page 6
17-8
14.10 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
14.11 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
14.12 Authority to Enter Into Agreement. Owner warrants that Owner is the owner
of the Art Work and has all rights and permissions to lend the Art Work to City for public
exhibition and to enter into this Agreement. City warrants that it is duly authorized to enter
into this Agreement and perform its obligations hereunder, and has received all necessary
third party consents and approvals to perform such obligations.
[SIGNATURES ON NEXT PAGE]
NANCY LYNN GARDNER Page 7
17-9
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: jOlot/Zq
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By: � � ,, By:
Aajon C. Harp /11,14
City Attorney ON'
ATTEST:
Date:
In
Leilani I. Brown
City Clerk
ATTACHMENT: Exhibit A
Grace K. Leung
City Manager
OWNER: NANCY LYNN GARDNER
Date:
in
Nancy Lynn Gardner
[END OF SIGNATURES]
Description of Art Work
NANCY LYNN GARDNER Page 8
17-10
EXHIBIT A
DESCRIPTION OF ART WORK
ARTIST NAME: CRAIG GRAY
A Novel Idea
Size- 5'x1'4"x1'6"
Medium: Granite
Honorarium: $0.00
Image:
NANCY LYNN GARDNER Page A-1
17-11
ATTACHMENT B
I-9
ART IN PUBLIC PLACES
A. The City of Newport Beach recognizes the importance and desirability of
enhancing and beautifying the public places within the City, by acquiring and
displaying publicly accessible works of art for the cultural benefit of the City,
its citizens and its visitors.
B. The City seeks to involve professional artists in City planning and design
projects; to integrate artworks in City capital improvement projects; and
to commission and/ or purchase new artworks for public places.
C. Public art can include but is not limited to permanent and temporary
sculpture, murals, as well as artist -designed fountains, mosaics and tile
work, banners, park benches and other street furniture, water features, bus
shelters, streetlights and lanterns, kiosks, retaining walls, and/or
hardscape treatments.
D. Reserved.
E. Reserved.
F. Reserved.
G. The Arts Commission shall review any future modifications, relocation,
repairs, and/or replacement of parts or works for Art located in public places.
History
Adopted T-1 - 9-8-1986
Amended T-1-1-24-1994 (changed to I-18)
Amended I -18 - 5-26-1998
Amended I-18 - 4-8-2003 (changed to 1-9)
Amended I-9 - 8-8-2017
1
17-12
ATTACHMENT C
ACQUISITION OF ART BY THE CITY OF NEWPORT BEACH
A. The City of Newport Beach ("City") believes that paintings, sculptures, drawings
and other art (collectively, "Art") placed on City property and in City buildings
increases the aesthetic appeal and beauty of such property and buildings, and of
the City in general.
B. All proposals to donate, exhibit, loan, sell or commission Art to the City
(collectively, "Convey(s)," "Conveyed," "Conveying" or "Conveyance") shall be
reviewed by the Arts Commission for recommendation to the City Council.
C. The Arts Commission shall be responsible to:
1. Confer with persons who have offered to Convey Art to the City,
informing them of this policy, including criteria for approving Art and the
policies, criteria and approval process.
2. Advise the City Council of the artistic merit and value of Art offered to the
City.
3. Advise the City Council regarding appropriate City property or City
buildings for display of Art, in conjunction with the City commission,
committee, board and/or department which has responsibility for
planning or maintaining the proposed location.
D. The Arts Commission shall consider the following criteria in making a
recommendation for accepting an offer to Convey Art to the City:
1. The Art should be an original creation or a limited edition by the original
artist, and be of the highest quality and level of artistic excellence.
2. The Art should add to the balanced inventory of the City's collection,
representing a variety of style, design and media.
3. The person(s) seeking to Convey Art to the City shall complete all
required forms, as provided by the Library Services Department.
4. The Art should be of satisfactory physical condition, be sufficiently
durable as to not be easily damaged or destroyed, should not require
restoration or extensive long term conservation, and should be of a
physical size and weight that the Art can be managed in storage, transport
and public display without difficulty. Art requiring restoration may only
17-13
be considered with full disclosure of the restoration costs provided by a
licensed art appraiser.
5. The Art should be consistent with and relevant to the civic interests and
broad variety of tastes within the Newport Beach community.
E. Art may only be recommended by the Arts Commission to the City Council for
acceptance upon the majority vote of the Arts Commission.
F. Art accepted into the City collection by the City Council is accepted with the
understanding that the City Council reserves the right to place the Art on public
display on either a permanent or temporary basis, and to store the Art when not
on display. Acceptance of Art by the City Council does not guarantee that the
Art will be displayed in perpetuity. The City Council may sell, donate or
otherwise remove any Art in the City collection. Any proceeds received by the
City from the transfer of Art shall be expended to acquire, restore or display Art.
G. Art considered for inclusion in the City's collection must conform to City Council
Policy I-9 (Art in Public Places).
H. The City does not provide valuations or appraisals of Art Conveyed to the City.
The value of Art should be presented by the person(s) Conveying Art to the City
at the time of Conveyance. It is the responsibility of the person(s) Conveying Art
to the City to furnish a valuation to the appropriate government tax agency.
I. The person(s) Conveying Art to the City shall obtain all intellectual and
photographic property rights to the Art and transfer such rights to the City. The
City reserves the right to photograph Art for any and all purposes, including, but
not limited to, publicity and informational literature.
J. Any person(s) that Conveys Art to the City shall represent and warrant in writing
that it owns the Art and that the Art shall be Conveyed to the City free and clear of
all liens, restrictions, security interests or agreements by which the City would be
bound, but subject to all laws generally applicable to the transfer of title of any
work of Art.
K. Subject to compliance with California Civil Code Section 987, the City shall assume
no liability in the event of loss or damage to any Art accepted into the City's
collection.
17-14
Adopted- February 24,1986
Reaffirmed -January 24,1994
Amended & Reassigned -April 8, 2003
Amended - May 12, 2015
Formerly F-23
Formerly I-13
17-15