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HomeMy WebLinkAbout12 - Sculpture Park at the Civic CenterCITY 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. 1 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: 2 A10- 00025/06.07.10 V13 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. 3 A10 -00025/06.07.10 V13 G 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 4 A I0- 00025/06.07.10 V 13 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. 5 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: 7 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. f 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. E 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 10 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. 11 A 10- 00025/06.07.10 V 13 13 { [SIGNATURES ON FOLLOWING PAGE] 12 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: am ; y David R. Hunt, City Attorney City of Newport Beach 01dib 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: _ Nam Title: ORANGE COUNTY MUSEUM OF ART By: Name: CP C S Title: APf3 (D��-T' Dated : W/4124010 [END OF SIGNATURES] 13 A10- 00025/06.02.10 V12 15 ....._......... _..._.._.. . Exhibit "A" Sculpture Park Location & Layout 14 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 15 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. 2 90 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 )I 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] G 0,)- 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: AI7_\k[�IK�1�P►r�'��� [�Lyx11��[ityG \:�I By: Name: Title: Dated: [END OF SIGNATURES] 5 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