HomeMy WebLinkAboutBlum, Andrea; 1993-12-15;I
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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
CITY OF CARLSBAD, a municipal ) CIVIL ACTION NO. 93-430 S(b
corporation established under the )
laws of the State of California, 1 and HOUSING AND RE- )
government agency established 1 under the laws of the State of 1
California, )
)
Plaintiffs, 1
)
V. )
)
ANDREA BLUM, ' )
)
Defendant. 1 1
DEVELOPMENT COMMISSION OF )
THE CITY OF CARLSBAD, a local )
The parties, City of Carlsbad ("CITY") and Housing
Redevelopment Commission of the City of Carlsbad ("AGENCY"), Plainti
and Andrea Blum ("BLUM"), Defendant, having settled their dispute un
the terms and conditions of the Settlement Agreement of December
1993, attached hereto as Exhibit A (AGREEMENT), and desiring to h
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the terms and conditions of the Agreement entered herein as a judgm
of the Court, and for good cause appearing therefor.
IT IS HEREBY ORDERED, DECREED, AND ADJUDGED tl
(1) the terms, covenants, consents, waivers, and conditions of
AGREEMENT, and the AGREEMENT in its entirety, shall become
judgment of this Court, and the parties are ordered to comply with all
terms, conditions, consents, waivers, and covenants therein; and (2) neit
Plaintiffs nor Defendant in this action shall take anything by this act
other than the benefits of the terms and conditions of their Settlem
Agreement of December 15, 1993, each party to bear its own costs :
attorney’s fees.
IT IS ORDERED that judgment be entered accordingly.
Dated:
JUDGE OF THE UNITED
STATES DISTRICT COURT
I
Chairman
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II, 0 9
ohde & Victoroff, neys for BLUM
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1. Date. December 15, 1993.
2. Parties. City of Carlsbad, with principal offices at of 1200 Carlsbad Villi
Drive, Carlsbad, California 92008- 1989 ("CITY"); Housing and Redevelopmi
Commission of the City of Carlsbad, with principal offices at 1200 Carlst
Village Drive, Carlsbad, California 92008-1989 ("AGENCY") (CITY and AGEN(
referred to collectively as "CARLSBAD"); and Andrea Blum 76 Rohde & Victorc
1880 Century Park East, Suite 411, Los Angeles, CA 90067 ("ARTIST").
3. Recitals. CARLSBAD commissioned ARTIST to design a work of art entit
"Split Pavilion" ("WORK") for installation in the City of Carlsbad, County of 2
Diego, State of California near Ocean Street between Oak and Pine Avenues unc
an agreement between CITY and ARTIST dated July 10, 1987 ("AGREEMENT"),
structure embodying such WORK being completed on February 1, I!
("INSTALLATION DATE"). A dispute has arisen between ARTIST and CARLSBP
ARTIST claiming that she has moral rights under State and Federal laws so t
the structure must be preserved, and CARLSBAD taking the opposite positi
CARLSBAD commenced a suit in the United States District Court for the Southc
District of California, Case No. 93-430 S(M), for declaratory relief ("ACTIOP which ACTION is pending.
4. Purooses. The parties wish to settle their dispute, and resolve the ACTI(
by agreeing to a consent judgment in the form indicated at Exhibit A attacl hereto ("CONSENT JUDGMENT"). To do so, they agree to the following cour
of action and covenants.
5. North Bars. CARLSBAD may remove the bars on the North side of
structure ("NORTH BARS') at any time but must leave the concrete wall on
North side of the structure intact at least for the duration of the period set fo
at Paragraph 7 below. Upon removal of the NORTH BARS, the holes, if a
shall be patched to match the existing concrete, and the cut railing will
galvanized to match the end of the railing at the south end according to
specifications set forth at Exhibit B attached hereto. In consideration for
prerogative under this Agreement (but not the obligation) to remove the NOR
BARS (whether or not CARLSBAD exercises that prerogative), and in considerat
of the waiver of claimed moral rights as applied to the NORTH BARS (mentioi
below at Paragraph 14), CARLSBAD shall pay ARTIST the sum of $10,000 thi
(30) days after the date hereof E on the first day of the removal of
NORTH BARS, whichever is earlier.
6. LandscaDinR. If CARLSBAD elects to exercise its rights under Paragrap1
above by giving notice of such election to ARTIST, CARLSBAD shall also a1
the foliage within the structure ("LANDSCAPING) by supplementing some of it 2
replacing other parts of it with the foliage identified at Exhibit C attached herc
according to the planting plan depicted at Exhibit D attached hereto, which shc
the LANDSCAPING as it will appear after CARLSBAD exercises its prerogative :
the existing LANDSCAPING is supplemented and replaced. In consideration of
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prerogative under this Agreement (but not the obligation) to make
LANDSCAPING changes (whether or not CARLSBAD exercises that prerogative), 2
in consideration of the waiver of moral rights in relation to the LANDSCAPII
(mentioned at Paragraph 14 below), CARLSBAD shall pay ARTIST the sum
$10,000 forty-five (45) days after the date hereof or on the first day of
removal and alteration of the foliage, whichever is earlier. In the event that
plants presently selected at Exhibit C prove to be incompatible with the site
with each other or have difficulty surviving in the environment, CARLSBAD n
replace them with other plants having similar qualities in terms of height i
appearance, provided that none of the replacement plants shall be more than th
(3) feet in height. Moreover, before undertaking any such replaceme
CARLSBAD shall submit to ARTIST, for her comments, criticisms, and review, c(
illustrations or other photographic materials showing the new plants to be u
along with a proposed planting plan, and shall fully consult with ARTIST
connection therewith, though ARTIST shall not have the right to withhold appro?
7. Removal of Entire Structure or Other Parts Thereof. CARLSBAD D
remove the entire structure, including, without limitation, the walls and conci
benches, anytime after 78 months from the INSTALLATION DATE, leaving no r
of the structure intact, except that CARLSBAD shall not be required to rem
the North walls, the soil, and the ground-level concrete, all as depicted
Exhibit E hereto. If CARLSBAD leaves the soil intact it must remove all pla
thereon (though it may replant the area), and it must cover all, or substanti:
all, of the East-West walkway depicted in Exhibit E. Notwithstanding
foregoing, before CARLSBAD takes any action in relation to removal of
structure, other than the actions mentioned above with respect to the NOR
BARS and the LANDSCAPING, CARLSBAD, or at least CITY, shall hold pul
hearings on the removal and the impacts thereof to allow citizen input. 0
CARLSBAD exercises its removal rights it may also make other changes to the s The West railings and West retaining walls, depicted in Exhibit E, are
considered part of the structure and may be maintained or removed CARLSBAD’s discretion.
8. Credits. ARTIST shall be entitled to sole credit as the sole author of
WORK. CARLSBAD disclaims any authorship in the WORK and will do noth
to interfere with ARTIST’S above-mentioned entitlement to credit, though the par
understand that CARLSBAD cannot prevent other persons from claiming cre
including, without limitation, the architects. Notwithstanding the foregoing,
CARLSBAD exercises any of its rights under Paragraphs 5, 6, or 7 hereunder,
may describe and publicize its role in taking such actions.
9. Publicity. Either party is free to publicize its version of the dispute i
this settlement.
10. Maintenance. Unless and until CARLSBAD exercises its removal rights un
Paragraph 7 above, CITY agrees to maintain the structure as it would any ot
similar municipal structure, such maintenance obligations to extend to the en
structure, including the pools of water, lighting, LANDSCAPING, remaining b
and concrete structures.
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11. Indemnification. CARLSBAD agrees to fully indemnify ARTIST from 2
against any and all claims, demands, lawsuits, and actions arising from
connected with the WORK or the structure from the date of this Agreement UI
such time as CARLSBAD exercises its removal rights under Paragraph 7 abc
such indemnification to cover all losses, damages, judgments, awards, settlemei
decrees, and expenses (including, without limitation, attorney’s fees and costs) aris
from or connected with any such claim, demand, lawsuit, or actj
Notwithstanding the foregoing, this indemnification shall only extend to third-pa
claims that arise from the date of this Agreement until CARLSBAD exercises
removal rights under Paragraph 7 above.
12. Consent JudPment. Upon executing this Agreement the parties shall i
concurrently execute the CONSENT JUDGMENT and submit the same to Court for entry.
13. Restrictions on CARLSBAD’s DroDertv riphts. During ARTIST’S life and
fifty (50) years thereafter, CARLSBAD shall not take any action to dist
mutilate, modify, deface, destroy, or remove the WORK or the structure other tl
those actions explicitly permitted by this Agreement.
14. Waiver of Moral Rights. ARTIST has consented to the changes in
LANDSCAPING, the removal of the NORTH BARS, and the removal of
structure, as provided above at Paragraphs 5, 6. and 7, none of which shall
considered as distortions, mutilations, modifications, alterations, defacements,
destructions, in violation of the moral rights, or any other rights, claimed
ARTIST under existing or future laws. ARTIST agrees not to, directly
indirectly, oppose CARLSBAD in securing any necessary permits, permissions,
approvals, if any, in connection with CARLSBAD properly exercising its rif
under Paragraphs 5, 6, or 7, above, nor shall ARTIST assist, encourage, spon
or finance any other persons in doing so. Additionally, ARTIST warrants that
persons and entities that have provided her with services, assistance, or support
connection with the ACTION (i.e., her attorneys and People for the American W will not take any measures to hinder the proper exercise by CARLSBAD of
rights under Paragraphs 5, 6, and 7 above. A failure of the above warranty SI
be deemed a breach of this Agreement on the part of ARTIST.
15. Mutual Releases. CITY and AGENCY, on behalf of themselves and tl
respective successors and assigns, hereby fully release and discharge ARTIST :
ARTIST’S successors, assigns, heirs, personal representatives, insurers, kens
employees, agents, representatives, attorneys, and accountants (hereafter “ARTIS
AFFILIATESn) from and against any and all claims, demands, actions, and cai
of action arising from any and all events, conduct, acts, omissions, torts, breac
of contract, breaches of warranties, indemnity obligations, infringements,
violations occurring or happening from the beginning of the world to the date
this Agreement, including without limitation all claims that were or could h
been asserted by CARLSBAD in the ACTION, by claim or counter-claim,
otherwise. ARTIST, on behalf of herself and her heirs, successors, assigns,
personal representatives, hereby fully releases and discharges AGENCY and CI’
and AGENCY’S and CITY’S successors, assigns, insurers, licensees, employees, age
representatives, attorneys, accountants, officers, and directors (hereafter “CARLSBA
AFFILIATES”) from and against any and all claims, demands, actions, and cai
of action arising from any and all events, conduct, acts, omissions, torts, breac
of contract, breaches of warranties, indemnity obligations, infringements,
violations occurring or happening from the beginning of the world to the date
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this Agreement, including, without limitation, all claims that were or could h:
been asserted by ARTIST in the ACTION, by claim or counter-claim, or otherw
Each of the parties hereto represents and warrants that it or she has
heretofore assigned or transferred, or purported to assign or transfer, to any ot
person, firm, corporation, or entity any claim, demand, damage, debt, liabill
account, action or cause of action herein released. Each party hereto agrees
indemnify and hold harmless each other party hereto, as well as that par1
AFFILIATES, against any claim, demand, damage, debt, liability, account, action
cause of action, cost or expense including any and all attorney’s fees paid
incurred, arising out of or in connection with any such transfer or assignment
purported or claimed transfer or assignment. Each of the parties hereto expres
represents and warrants that she or it has the authority to bind any person, fi
corporation or entity which has any right, title or interest in the claims, demar
damages, debts, liabilities, accounts, actions and causes of action herein releas
Each party hereto agrees to indemnify and hold harmless each other party herc
as well as that party’s AFFILIATES, against any claim, demand, damage, liabil
action, cause of action, cost or expense including any and all attorney’s fees p
or incurred, arising out of or in connection with the defense of any cla
demand, debt, damage, account, liability, action or cause of action herein relea
which is brought by any such person, firm, corporation, or entity.
16. Release of Unknown Claims.
(a) The general release mentioned above at Paragraph 15 applies to
claims, known or unknown, suspected or unsuspected, based upon events, condi
acts, omissions, torts, breaches of contract, breaches of warranties, indemn
obligations, infringements, or violations occurring or happening from the beginn of the world to the date of the Agreement. Moreover, the parties specific2
waive all of their rights under Section 1542 of the California Civil Code 2
under similar provisions of the laws of any other jurisdiction. Said Section 1
reads as follows:
Section 1542. Certain claims not affected bv Peneral
release. A general release does not extend to claims
which the creditor does not know or suspect to exist in
his favor at the time of executing the release, which if
known by him must have materially affected his
settlement with the debtor.
(b) No party to this Agreement admits liability to the other party, :
CARLSBAD hereby does not admit that ARTIST has any moral rights to
WORK or to the structure; moreover, ARTIST does not admit that such mc
rights do not exist. The covenants, releases, permissions, waivers, and payme
hereunder are for purposes of settlement only.
17. Notices. All notices between the parties must be given in writing and s
by fax or by overnight courier, return-receipt requested. Faxed notices shall
sent to CARLSBAD at (619) 434-8367 and to BLUM ‘56 Rohde and Victoroff
(310) 277-1485, and shall be deemed given on the date of transmission if the pa
giving notice maintains an electronic journal showing the successful transmissj
Notices sent by courier shall be sent to the parties at their addresses indica
above at paragraph 2, and shall be deemed given two days after the writ
notice is delivered to the courier. Notices of change of fax number and cha
of address shall be given with the same formalities. The payments mentioi
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above at paragraphs 5 and 6 shall be in the form of checks made out to
Rohde and Victoroff Client Trust Account and sent by overnight courier to
address indicated above at paragraph 2.
18. General Provisions.
(a) This Agreement shall be governed by the laws of California and SI
bind and benefit the heirs, successors, assigns, and personal representatives, if a
of the parties hereto. This Agreement represents the complete understand
between the parties as to its subject matter and supersedes all prior understandir
if any, as to its subject matter. No modification or amendment, nor any prom
waiver or representation (past, present or future) shall be valid or binding unl
made in writing and signed by the party to be bound thereby. In all le
proceedings between the parties, the prevailing party shall be entitled to
reasonable attorney’s fees and costs in addition to any other relief to which
may be entitled.
(b) This Agreement shall be deemed to have been authored and draf
by all parties, after consultation with their respective counsel, in an arms-len
transaction, so that any interpretation thereof shall not be against any partici
party on the grounds that it was the sole author of this Agreement.
(c) This Agreement may be execnted in coiinteryrts; e~ch of which SI
be equally valid and binding.
19. Execution. This Agreement is executed at Carlsbad, California on the d
first written at Paragraph 1 above.
CITY OF CARLSBAD (CITY) HOUSING AND REDEVELOPME
N OF THE
Mayor
ANDREA BLUM (ARTIST)
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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
CITY OF CARLSBAD, a municipal ) CIVIL ACTION NO. 93-430 S(M)
corporation established under the )
laws of the State of California, 1
MENT COMMISSION OF THE )
CITY OF CARLSBAD, a local )
government agency established 1
under the laws of the State of )
California, 1
)
Plaintiffs, 1
)
V. )
)
ANDREA BLUM, )
)
Defendant. ) 1
and HOUSING AND REDEVELOP- )
The parties, City of Carlsbad ("CITY") and Redevelopment Commission of I
City of Carlsbad ("AGENCY"), Plaintiffs, and Andrea Blum ("BLUM), Defenda
having settled their dispute under the terms and conditions of the Settlemc
Agreement of December 15, 1993, attached hereto as Exhibit A (AGREEMENT), a
desiring to have the terms and conditions of the AGREEMENT entered herein
a judgment of the Court, and for good cause appearing therefor.
IT IS HEREBY ORDERED, DECREED, AND ADJUDGED that: (1)
terms, covenants, consents, waivers, and conditions of the AGREEMENT, and t
AGREEMENT in its entirety, shall become the judgment of this Court, and t
parties are ordered to comply with all the terms, conditions, consents, waivers, a
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covenants therein; and (2) neither Plaintiffs nor Defendant in this action shall t;
anything by this action other than the benefits of the terms and conditions of
AGREEMENT, each party to bear its own costs and attorney’s fees.
IT IS ORDERED that judgment be entered accordingly.
Dated:
JUDGE OF THE UNITED
STATES DISTRICT COURT
1
CITY by Claude A. Lewis, Mayor Andrea blum, BLM
AGENCY by Claude A. Lewis, Chairman
Approved as to form:
Ronald R. Ball, Attorney for CITY and AGENCY
Approved as to form:
Stephen Rohde, of Rohde & Victoroff
Attorneys for BLUM
Approved as to form:
Peter H. Karlen, of Peter H. Karlen A.P.L.C.
Attorneys for CITY and AGENCY
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When the northerly rail is removed where the bars meet at the east-nc
intersection, a 6-inch cantilever nipple will extend beyond the most northc
vertical railing as shown below (a).
CARLSBAD will cut the nipple back to the first vertical rail in
configuration that matches the other end of that railing, Le., will cut, weld, i
cap finish to match the south end (b).
i+t I1 I 6"t mrii II (a) innnr !b!
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1. Fountain Grass (existing)
2. Dwarf Flax (existing)
3. Liriope (existing)
4. Lampranthus (Small Iceplant)
5. Sea Lavender (Limonium)
6. Aloe (Vera)
7. Echium
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KEY
Fountain Grass
'Sea Lavender (Limonium)
Lampranthus (Small Iccplant)
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.I II
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= ground-lcvel concrete
= soil and LANDSCAPING areas
prerogative to remove the structure as per paragraph 7 of this Agreement.
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