AGREEMENT FOR DONATION, INSTALLATION AND
MAINTENANCE OF PUBLIC ARTWORK
This Agreement for Donation, Installation and Maintenance of Public Artwork (“Agreement”) is made and entered into this [___] day of [______], 2025, by and between the City of San Clemente, California (the “City”) and the San Clemente Lifeguard and Junior Guard Foundation, a California nonprofit public benefit corporation (the “Foundation”), who are sometimes referred to as “Party” and collectively as the “Parties”, with respect to the following facts:
R E C I T A L S
WHEREAS, the Foundation is a nonprofit public benefit corporation, duly organized and existing under the laws of the State of California, dedicated to enhancing the safety and well-being of visitors to the beach through education, community partnerships, direct support of the San Clemente Marine Safety Division’s lifeguard and junior lifeguard programs, and preservation of the history and memorabilia of San Clemente lifeguarding; and WHEREAS, the Foundation intends to raise funds and commission a sculpture (the “Artwork”), created by sculptor Bill Limebrook (the “Artist”), an illustration of which is attached hereto as Exhibit A and incorporated herein by this reference, to honor and celebrate the City’s 90-plus year commitment to providing ocean lifeguard services that promote the safety of its beaches and beachgoers, and will have title to the Artwork following its construction; and WHEREAS, the Artwork is being offered to the City as a gift; and WHEREAS, the City recognizes the importance of this tribute and supports the installation of the Artwork at Parque Del Mar, a site that will enhance the community’s appreciation of San Clemente’s coastline and lifeguard history, and wishes to collaborate with the Foundation regarding the installation and ongoing maintenance of the Artwork; and WHEREAS, the city council of the City (the “City Council”) at its regular meeting of September 3, 2024 adopted Resolution No. 24-139, which, among other things, conditionally approved the installation of the Artwork at the north side of Parque Del Mar, in the location depicted as Location D (“Site”) in Exhibit “A” to Resolution No. 24-139, which is incorporated herein fully by this reference, subject to obtaining a coastal development permit, waiver or other approval from the California Coastal Commission and subject to the Foundation entering into an installation and maintenance agreement with the City as set forth in Section 4 of Resolution No. 24-139; and WHEREAS, on September 3, 2024, the City Council found, among other things, that the addition of the Artwork at the Site aligns with the existing recreational, visitor serving and cultural use of the area, will enhance the park’s visual appeal, does not involve any change in land use or density, will not impact coastal resources and is categorically exempt from the California Environmental Quality Act (“CEQA”) under Class 3, Section 15303 of the state CEQA Guidelines (14 CCR 15303); and WHEREAS, on September 3, 2024, the City Council authorized the city manager to negotiate and execute an installation and maintenance agreement with the Foundation providing for the ongoing care and maintenance of the Artwork and the Parties intend this Agreement to be such installation and maintenance agreement; and WHEREAS, on February 5, 2025, the California Coastal Commission approved a de minimis waiver for installation of the Artwork.
NOW, THEREFORE, in consideration of the mutual promises and undertakings herein contained, the City and the Foundation enter into this Agreement for Donation, Installation and Maintenance of Public Artwork to define their respective roles and responsibilities concerning the Artwork and hereby agree as follows:
CONDITIONS PRECEDENT AND SCOPE OF SERVICES
CONDITIONS PRECEDENT
The conditions precedent to this Agreement becoming effective are as follows:
The Parties shall have executed this Agreement by their duly authorized representatives; Following its fundraising efforts, the Foundation shall have provided written notice to the City of its intention to proceed with the commission and installation of the Artwork; and Prior to having receiving the notice set forth in paragraph (b) above, there shall have been no legal challenge filed related to the Artwork or its installation on City property.
Should any of the foregoing conditions precedent fail to occur, this Agreement shall automatically be deemed have no force or effect.
GENERAL SCOPE OF SERVICES; INSTALLATION AND MAINTENANCE The Artwork shall be constructed to fit a permanent base. The Foundation shall be responsible for the commission, construction, delivery and installation of the Artwork and the base at the Site. The City and the Foundation shall mutually agree on the installation date(s) of each of the base and the Artwork. Each Party shall have a designated representative or representatives present for the delivery, siting and final installation of the Artwork.
As needed, the City shall provide the Foundation, its contractors and representatives access to the Site and permit them to conduct installation-related activities. The City shall waive any applicable fees and shall use its best efforts to expedite required approvals in connection with the installation-related activities. In addition, the City shall, if requested, support installation of the base and the Artwork by providing access to City crews.
The City shall permit, at the time of installation of the Artwork and at any time thereafter upon reasonable written notice to the City, the Foundation to modify the dedication plaque and/or install additional donor recognition plaques, at the Foundation’s discretion, on or near the base of the Artwork. The City may not remove any donor recognition plaques without the Foundation’s prior written consent.
Title to the Artwork shall pass to the City upon installation at the Site, subject to the City’s performance of its obligations under this Agreement.
Prior to installation, the Foundation shall prepare, in consultation with the Artist, and deliver to the City a general maintenance plan (the “Maintenance Plan”) for the Artwork, with a description of future anticipated maintenance requirements and a recommended maintenance schedule. Upon installation, the City shall be responsible for maintaining the Artwork in good condition. The Foundation shall not be responsible for preventive, corrective, ongoing or other maintenance of the Artwork. The City shall perform routine maintenance on the Artwork in accordance with the Maintenance Plan. Maintenance shall include, but is not limited to, cleaning, repair and any necessary preservation measures to ensure that the Artwork remains in good condition. In addition, the City shall be responsible for as needed cleaning and maintenance of the Artwork necessitated by graffiti, defacement or other acts of the public related to the Artwork, including, but not limited to, removing items of any kind placed on the surface of the Artwork, whether temporary or permanent in nature.
Within six (6) months of installation of the Artwork, the Foundation shall deliver funds to the City in an amount, agreed-upon in writing, equal to three (3) years of projected routine maintenance costs. The City shall use these funds only for maintenance of the Artwork. After such funds are expended, maintenance shall be at the City’s sole cost and expense.
WARRANTIES
WARRANTIES OF TITLE
The Foundation represents and warrants that:
The Artwork is solely the property of the Foundation.
The Artwork does not infringe upon any copyright.
The Artwork has not been accepted elsewhere.
The Artwork is original, is unique and is limited to one casting.
The Artwork is free and clear of any liens from any source whatsoever.
WARRANTIES OF QUALITY AND CONDITION
The Foundation represents and warrants that:
To the best knowledge of the Foundation, the execution of the Artwork has been performed in a workmanlike manner.
The Artwork, as fabricated and delivered, will be free of defects in material and workmanship, including any defects or known qualities that may cause or accelerate deterioration of the Artwork.
To the best knowledge of the Foundation, reasonable maintenance of the Artwork will not require procedures substantially more than those described in the Maintenance Plan.
NOTICE AND CURE OF BREACH
With reasonable promptness, the City shall give notice to the Foundation of any observed breach of any of the Foundation’s warranties under Section 2-2.
The Foundation shall, at the request of the City, and at no cost to the City, use reasonable commercial efforts to cure reasonably and promptly the breach of any warranty in Section 2-2 that is curable and which cure is consistent with professional standards, including, for example, using reasonable commercial efforts to cause the Artist to cure by means of repair or re-fabrication of the Artwork.
COPYRIGHTS, CREDIT
GENERAL
The City shall have title, ownership and possession of the Artwork as installed at the Site and the Artist retains all other rights under the Copyright Act of 1976 (17 U.S.C. §106). The Foundation, pursuant to its agreement with the Artist, has a non-exclusive, royalty-free, perpetual right and license to reproduce images of the Artwork for permissible purposes including, but not limited to, any written or printed information, reproduction in books, slides, photographs, postcards, posters, calendars, film strips, magazines, and newspapers, video and television, and computer web sites and other internet-based content, and to sublicense such right, and hereby grants the City a non-exclusive, royalty free, perpetual sublicense thereof. The City has no obligation to sue or defend on behalf of the Foundation or the Artist to protect any intellectual property claims of the Foundation or the Artist.
CREDIT TO THE ARTIST AND FOUNDATION
All images of the Artwork by the City represented in any media, including digital, shall contain a credit to the Artist and to the Foundation for its donation, and the following copyright notice: “©Bill Limebrook.”
CREDIT TO THE CITY
The Foundation shall use its best efforts to give a credit in any public showing, and in any media, including digital, of illustrations or photographs of the Artwork installed at the Site under the Foundation’s control, as follows: “An original Artwork owned by the City of San Clemente.” SITING
For the duration of this Agreement, the Artwork will be displayed at the Site or such other appropriate location as mutually agreed by the City and the Foundation. Any relocation of the Artwork from one site to another shall be at the City’s sole cost and expense. The City shall take reasonable precautions to minimize damage to or alteration of the Artwork during removal and relocation.
REMOVAL, ALTERATION, FIRST RIGHT OF REFUSAL
The City may temporarily remove the Artwork from public display at any time, including, but not limited to, temporary removal for maintenance or to remedy a safety hazard. For the purposes of this Agreement, a removal is temporary if the City in good faith intends to return the Artwork to public display. A temporary removal shall last no longer than one (1) year, after which such removal will be considered permanent and subject to Section 5-3.
Subject to the maintenance obligations provided in Section 1-2(c), although the City strives to maintain its public artwork in good repair and condition, the City may, but has no further obligation to, conduct work to conserve, repair and restore the Artwork at any time whenever the City deems such work is prudent or necessary.
If the City intends to stop conducting routine maintenance or to take any action with respect to the Site or the Artwork that would (a) alter, modify, or damage the Artwork or (b) permanently remove the Artwork from public display or deaccession such work, the City shall notify the Foundation at least twenty (20) calendar days prior to authorizing any such action and request written permission. If the Foundation does not provide written permission or denial within sixty (60) calendar days of such request, the City shall have the right to alter, modify or change the Artwork, subject to the terms and conditions below:
The Foundation shall have the first right of refusal to purchase all or part of the Artwork at the fair market value as determined by a qualified professional appraiser selected by the City and the Foundation for which the City and the Foundation will share the cost; If the Foundation does not exercise its first right of refusal and the City proceeds, in its discretion, to sell the Artwork, the City shall pay to the Foundation the sale price, less any reasonable and documented maintenance costs related to the Artwork borne by the City; If the Foundation does not exercise its first right of refusal and the City is not able to sell the Artwork, the City may permanently remove the Artwork from the Site, re-site it, store it, or dispose of it in any manner that the City sees fit; or The Foundation shall have the right to have its name and donor names removed from the Artwork as an alternative remedy.
INDEMNIFICATION
Each Party shall, to the fullest extent permitted by law, defend, indemnify and hold harmless the other Party and its officials, officers, employees, volunteers and agents from and against any and all liability, claims, judgments, causes of action, or demands arising directly or indirectly out of this Agreement or arising in connection with or related to the Artwork, except for those determined to be caused by the negligence or willful misconduct of the indemnifying Party. This indemnity obligation shall survive the termination or expiration of this Agreement.
COMPLIANCE
The Foundation shall be responsible for determining and shall comply with all federal, state and local laws, ordinances and regulations applicable to the performance of the Foundation’s obligations under this Agreement including, but not limited to, any applicable Public Contract Code or Labor Code requirements. The Foundation shall use reasonable commercial efforts to comply with any applicable City policies and procedures or to cause its contractors and representatives to do so.
ENTIRE AGREEMENT
This writing and the documents referred to herein embody the entire Agreement and understanding between the Parties hereto, and there are no other agreements or understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby.
MODIFICATION
No alteration, change, amendment, or modification of the terms of this Agreement shall be valid, unless made in writing and signed by both Parties hereto and approved by appropriate action of the City.
APPLICABLE LAW
This Agreement and all matters relating to it or the Artwork shall be governed by and construed in accordance with the laws of the State of California and any action brought relating to this Agreement or the Artwork shall be held exclusively in a state court in the County of Orange. Foundation hereby waives the right to remove any action from Orange County as may otherwise be permitted by California Code of Civil Procedure Section 394.
DISPUTE RESOLUTION
If a dispute should arise regarding the performance of this Agreement or the Artwork, the following procedures shall be used to address the dispute:
If the dispute is not resolved informally between representatives of Foundation and the City, then, within five (5) working days of notice from either Party notifying the other that such dispute remains outstanding and cannot be resolved informally, the Foundation shall prepare a written position statement containing the Party’s full position and a recommended method of resolution and shall deliver the position statement to the City’s contract officer, which is hereby designated as Samantha Wylie or whomever the city manager may hereafter designate (the “Contract Officer”).
Within ten (10) working days of receipt of the position statement, the Contract Officer shall prepare a response statement containing the City’s full position and a recommended method of resolution and shall deliver the response statement to the Foundation.
After the exchange of statements, if the dispute is not resolved within ten (10) working days, the Foundation and the Contract Officer shall deliver the statements to the city manager who shall make a recommendation within fifteen (15) working days regarding resolution of such dispute.
If the dispute remains unresolved for fifteen (15) days following the city manager’s recommendation, and the Parties have exhausted the procedures of this Article 11, either Party may then seek resolution by mediation or such other remedies available to them by law or in equity.
ASSIGNMENT
This Agreement is an agreement between the Parties and there are no third party beneficiaries under this Agreement. The Foundation shall not assign, encumber, or transfer, voluntarily or involuntarily, any of its rights, duties, or obligations under this Agreement without the prior express written consent of the City in each instance. Any such assignment, transfer, or encumbrance given without written consent of the City shall be void and, at the option of the City, shall render this Agreement void.
SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit of the City and of the Foundation and of their respective successors and permitted assigns. In the event the Foundation ceases to exist prior to the end of the term of this Agreement, as described in Article 16, the parties agree to cooperate in good faith to identify a suitable successor.
NOTICES
All notices, requests, demands and other communications that are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon delivery and receipt thereof, as the case may be, if delivered personally, sent by email, or sent by certified mail, return receipt request, postage-prepaid as follows:
THE CITY: City of San Clemente
City Clerk
910 Calle Negocio
San Clemente, CA 92673
Email: [[email protected]
FOUNDATION: San Clemente Lifeguard and Junior Lifeguard Foundation Attn: Greg Hulsizer
PO Box 200
San Clemente, CA 92674
Email: [_____________________]
SURVIVING ARTICLES
All provisions of this Agreement that by their express terms survive termination or expiration of this Agreement, including the indemnification obligations, shall survive termination or expiration of this Agreement and the date by which all obligations required under this Agreement have been performed.
TERM AND TERMINATION
The initial term of this Agreement shall be for a period of twenty (20) years from the date that the Artwork is installed, unless earlier terminated or extended by mutual written agreement of both Parties. No later than one (1) year prior to the end of the initial term, the City and Foundation will meet and confer in good faith regarding potential extension of the Agreement, disposition of the sculpture, or other matters of interest by either party. After the expiration or earlier termination of this Agreement, the City shall have the right to maintain or dispose of the Artwork as it sees fit.
SIGNATURES
This Agreement may be executed electronically and in any number of counterparts, which together shall constitute one instrument with the same force and effect as original ink signatures.
Each signatory and Party hereto hereby warrants and represents to the other Party that it has legal authority, capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. Each signatory further warrants and represents that it will defend and indemnify the other Party should the foregoing representation prove false.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective authorized officers or representatives as of the day and year first set forth above.
CITY
City of San Clemente,
a California municipal corporation
By:
Andy Hall, City Manager Date
FOUNDATION
San Clemente Lifeguard & Junior Guard
Foundation, a California nonprofit corporation
By:
Greg Hulsizer, President Date
By: _________________________________
Larry Moore, Vice President Date
APPROVED AS TO FORM:
By:
Elizabeth A. Mitchell Date
ATTEST:
By:
City Clerk Date
Exhibit A
Artwork
2 4932-7872-2579.6
Attachment 3