Lot 164: Dan Christensen (1942-2007) American Flamingo1979acrylic on canvas, signed and inscribed on verso 'Acrylic on canvas © Dan Christensen - 1979 'American Flamingo''80 x 79in (203.2 x 200.7cm)
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Buyer's Premium$1 - 2,999: 27.5%
$3,000 - 399,999: 25.0%
$400,000 - 3,999,999: 20.0%
Notice to Bidders
The following Conditions of Sale, as amended by any published or posted notices or verbal announcements during the sale, constitute the entire terms and conditions on which property listed in the catalog shall be offered for sale or sold by Bonhams & Butterfields Auctioneers Corp.
and any consignor of such property for whom we act as agent. If live online bidding is available for the subject auction, additional terms and conditions of sale relating to online bidding will apply; see www.bonhams.com/WebTerms for the supplemental terms. As used herein,
"Bonhams," "we" and "us" refer to Bonhams & Butterfields Auctioneers Corp.
1. As used herein, the term "bid price" means the price at which a lot is successfully knocked down to the purchaser.
The term "purchase price" means the aggregate of (a) the bid price, (b) a PREMIUM retained by us and payable by the purchaser EQUAL TO 27.5% OF THE FIRST $3,000 OF THE BID PRICE, 25% OF THE AMOUNT OF THE BID PRICE ABOVE $3,000 UP TO AND INCLUDING $400,000, 20% OF THE AMOUNT OF THE BID PRICE ABOVE $400,000 UP TO AND INCLUDING $4,000,000, AND 13.9% OF THE AMOUNT OF THE BID PRICE OVER $4,000,000, and (c) unless the purchaser is exempt by law from the payment thereof, any Alabama, Arizona, California, Colorado,Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Indiana, Kentucky, Louisiana, Maine, Massachusetts,Michigan, Minnesota, Nevada, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, Texas, Utah, Virginia, Washington, D.C., Washington state, Wisconsin,Wyoming or other state or local sales tax (or compensating
use tax) and other applicable taxes. With regard to New York sales tax, please refer to the "Sales and Use Tax" section of
these Conditions of Sale.
2. On the fall of the auctioneer's hammer, the highest bidder shall have purchased the offered lot in accordance and subject to compliance with all of the conditions set forth herein and (a) assumes full risk and responsibility therefor, (b) if requested will sign a confirmation of purchase, and (c) will pay the purchase price in full or such part as we may require for all lots purchased. No lot may be transferred. Any person placing a bid as agent on behalf of another (whether or not such person has disclosed that fact or the identity of the principal) may be jointly and severally liable with the principal under any contract resulting from the acceptance of a bid.
Unless otherwise agreed, payment in good funds is due and payable within five (5) business days following the auction sale. Whenever the purchaser pays only a part of the total purchase price for one or more lots purchased, we may apply such payments, in our sole discretion, to the lot or lots we choose. Payment will not be deemed made in full until we have collected good funds for all amounts due. Payment for purchases may be made in or by (a) cash, (b) cashier's check or money order, (c) personal check with approved credit drawn on a U.S. bank, (d) wire transfer
or other immediate bank transfer, or (e) Visa, MasterCard, American Express or Discover credit, charge or debit card.
A processing fee will be assessed on any returned checks. Please note that the amount of cash notes and cash equivalents that can be accepted from a given purchaser may be limited.
To the fullest extent permitted by applicable law: The purchaser grants us a security interest in the property, and we may retain as collateral security for the purchaser's obligations to us, any property and all monies held or received by us for the account of the purchaser, in our possession. We also retain all rights of a secured party under the California Commercial Code. If the foregoing conditions or any other applicable conditions herein are not complied with, in addition to all other remedies available to us and the consignor by law, we may at our election: (a) hold the purchaser liable for the full purchase price and any ate charges, collection costs, attorneys' fees and costs,expenses and incidental damages incurred by us or the consignor arising out of the purchaser's breach; (b) cancel the sale, retaining as liquidated damages all payments made by the purchaser; and/or (c) cancel the sale and/or resell the purchased property, at public auction and/or by private sale, and in such event the purchaser shall be liable for the payment of all consequential damages, including any deficiencies or monetary losses, and all costs and expenses of such sale or sales, our commissions at our standard rates, all other charges due hereunder, all late charges,
collection costs, attorneys' fees and costs, expenses and incidental damages. In addition, where two or more amounts are owed in respect of different transactions by the purchaser to us, to Bonhams 1793 Limited and/or to any of our other affiliates, subsidiaries or parent companies worldwide within the Bonhams Group, we reserve the right to apply any monies paid in respect of a transaction to discharge any amount owed by the purchaser. If all fees, commissions, premiums, bid prices and other sums due to us from the purchaser are not paid promptly as provided in these Conditions of Sale, we reserve the right to impose a finance charge equal to 1.5% per month (or, if lower, the maximum nonusurious rate of interest permitted by applicable law), on all amounts due to us beginning on the 31st day following the sale until payment is received, in addition to other remedies available to us by law.
3. We reserve the right to withdraw any property and to divide and combine lots at any time before such property's auction. Unless otherwise announced by the auctioneer at the time of sale, all bids are per lot as numbered in the catalog and no lots shall be divided or combined for sale.
4. We reserve the right to reject a bid from any bidder, to split any bidding increment, and to advance the bidding in any manner the auctioneer may decide. In the event of any dispute between bidders, or in the event the auctioneer doubts the validity of any bid, the auctioneer shall have sole and final discretion either to determine the successful bidder or to re-offer and resell the article in dispute. If any dispute
arises after the sale, our sales records shall be conclusive in all respects.
5. If we are prevented by fire, theft or any other reason whatsoever from delivering any property to the purchaser or a sale otherwise cannot be completed, our liability shall be limited to the sum actually paid therefor by the purchaser and shall in no event include any compensatory, incidental or consequential damages.
6. If a lot is offered subject to a reserve, we may implement such reserve by bidding on behalf of the consignor, whether by opening bidding or continuing bidding in response to other bidders until reaching the reserve. If we have an interest in an offered lot and the proceeds therefrom other than our commissions, we may bid therefor to protect such interest. CONSIGNORS ARE NOT ALLOWED TO BID ON THEIR OWN ITEMS.
7. All statements contained in the catalog or in any bill of sale, condition report, invoice or elsewhere as to authorship, period, culture, source, origin, measurement, quality, rarity, provenance, importance, exhibition and literature of historical relevance, or physical condition ARE QUALIFIED STATEMENTS OF OPINION AND NOT REPRESENTATIONS OR WARRANTIES. No employee or agent of Bonhams is authorized to make on our behalf or
on that of the consignor any representation or warranty, oral or written, with respect to any property.
8. All purchased property shall be removed from the premises at which the sale is conducted by the date(s) and time(s) set forth in the "Buyer's Guide" portion of this catalog. Property designated with a "W" and associated purchased lots, if not removed promptly following sale, will be transferred to an offsite warehouse at the purchaser's risk and expense, as set forth in more detail in the "Buyer's Guide." Purchased property that is permitted to remain onsite at Bonhams' facility should be removed at the purchaser's expense not later than 5:00 p.m. Pacific Time five (5) business days following the date of the sale. If not so removed, a storage fee of $5.00 per lot per day will be payable to us by the purchaser beginning at the close of the 21st day following the sale, and we may thereafter transfer such property to an offsite warehouse at the
purchaser's risk and expense. Accounts must be settled in full before property will be released. Packing and handling of purchased lots are the responsibility of the purchaser. Bonhams can provide packing and shipping services for certain items as noted in the "Buyer's Guide" section of the catalog.
9. The copyright in the text of the catalog and the photographs, digital images and illustrations of lots in the catalog belong to Bonhams or its licensors. You will not reproduce or permit anyone else to reproduce such text, photographs, digital images or illustrations without our prior written consent.
10. These Conditions of Sale shall bind the successors and assigns of all bidders and purchasers and inure to the benefit of our successors and assigns. No waiver,amendment or modification of the terms hereof (other thanposted notices or oral announcements during the sale) shall bind us unless specifically stated in writing and signed by us. If any part of these Conditions of Sale is for any reason invalid or unenforceable, the rest shall remain valid and enforceable.
11. These Conditions of Sale and the purchaser's and ourrespective rights and obligations hereunder are governed by the laws of the State of California. By bidding at an auction, each purchaser and bidder agrees to be bound by these Conditions of Sale. Any dispute, controversy or claim arising out of or relating to this agreement, or the breach, termination or validity thereof, brought by or against Bonhams (but not including claims brought against the consignor by the purchaser of lots consigned hereunder) shall be resolved by the procedures set forth below.
MEDIATION AND ARBITRATION PROCEDURES
(a) Within 30 days of written notice that there is a dispute, the parties or their authorized and empowered representatives shall meet by telephone and/or in person to mediate their differences. If the parties agree, a mutually acceptable mediator shall be selected and the parties will equally share such mediator's fees. The mediator shall be a retired judge or an attorney familiar with commercial law and trained in or qualified by experience in handling mediations. Any communications made during the mediation process shall not be admissible in any subsequent arbitration, mediation or judicial proceeding. All proceedings and any resolutions thereof shall be confidential, and the terms governing arbitration set forth in paragraph (c) below shall govern.
(b) If mediation does not resolve all disputes between the parties, or in any event no longer than 60 days after receipt of the written notice of dispute referred to above, the parties shall submit the dispute for binding arbitration before a single neutral arbitrator. Such arbitrator shall be a retired judge or an attorney familiar with commercial law and trained in or qualified by experience in handling arbitrations. Such arbitrator shall make all appropriate disclosures required by law. The arbitrator shall be drawn from a panel of a national arbitration service agreed to by the parties, and shall be selected as follows: (i) If the national arbitration service has specific rules or procedures, those rules or procedures shall be followed; (ii) If the national arbitration service does not have rules or procedures for the selection of an arbitrator, the arbitrator shall be an individual jointly agreed to by the parties. If the parties cannot agree on a national arbitration service, the arbitration shall be conducted by the American Arbitration Association, and the arbitrator shall be selected in accordance with the Rules of
the American Arbitration Association. The arbitrator's award shall be in writing and shall set forth findings of fact and
(c) Unless otherwise agreed to by the parties or provided by the published rules of the national arbitration service:
(i) the arbitration shall occur within 60 days following the selection of the arbitrator;
(ii) the arbitration shall be conducted in the designated location, as follows: (A) in any case in which the subject auction by Bonhams took place or was scheduled to take place in the State of New York or Connecticut or the Commonwealth of Massachusetts, the arbitration shall
take place in New York City, New York; (B) in all other cases, the arbitration shall take place in the city of San Francisco, California; and
(iii) discovery and the procedure for the arbitration shall be as follows:
(A) All arbitration proceedings shall be confidential;
(B) The parties shall submit written briefs to the arbitrator no later than 15 days before the arbitration commences;
(C) Discovery, if any, shall be limited as follows: (I) Requests for no more than 10 categories of documents,to be provided to the requesting party within 14 days of written request therefor; (II) No more than two (2)depositions per party, provided however, the deposition(s)
are to be completed within one (1) day; (III) Compliance with the above shall be enforced by the arbitrator in accordance with California law; (D) Each party shall have no longer than eight (8) hours to present its position. The entire hearing before the arbitrator shall not take longer than three (3) consecutive days;(E) The award shall be made in writing no more than 30 days following the end of the proceeding. Judgment
upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. To the fullest extent permitted by law, and except as required by applicable arbitration rules, each party shall bear its own attorneys' fees and costs in connection with
the proceedings and shall share equally the fees and expenses of the arbitrator
LIMITED RIGHT OF RESCISSION
If within one (1) year from the date of sale, the original purchaser (a) gives written notice to us alleging that the identification of Authorship (as defined below) of such lot as set forth in the BOLD TYPE heading of the catalog description of such lot (as amended by any
saleroom notices or verbal announcements during the sale) is not substantially correct based on a fair reading of the catalog (including the terms of any glossary contained therein), and (b) within 10 days after such notice returns the lot to us in the same condition as at the time of sale, and (c) establishes the allegation in the notice to our satisfaction (including by providing one or more written opinions by recognized experts in the field, as we may reasonably require), then the sale of such lot will be rescinded and, unless we have already paid to the consignor monies owed him in connection with the sale, the original purchase price will be refunded. If, prior to receiving such notice from the original purchaser alleging such defect, we have paid the consignor monies owed him in connection with the sale, we shall pay the original purchaser the amount of our commissions, any other sale proceeds to which we are entitled and applicable taxes received from the purchaser on the sale and make demand on the consignor to pay the balance of the original purchase price to the original purchaser. Should the consignor fail to pay such amount promptly, we may disclose the identity of the consignor and assign to the original purchaser our rights against the consignor with respect to the lot the sale of which is sought to be rescinded. Upon such disclosure and assignment, any liability of Bonhams as consignor's agent with respect to said lot shall automatically terminate.
The foregoing limited right of rescission is available to the original purchaser only and may not be assigned to or relied upon by any subsequent transferee of the property sold. The purchaser hereby accepts the benefit of the consignor's warranty of title and other representations and warranties made by the consignor for the purchaser's benefit. Nothing in this section shall be construed as an admission by us of any representation of fact, express or implied, obligation or responsibility with respect to any lot. THE PURCHASER'S SOLE AND EXCLUSIVE REMEDY AGAINST BONHAMS FOR ANY REASON WHATSOEVER IS THE LIMITED RIGHT OF RESCISSION DESCRIBED IN THIS SECTION.
"Authorship" means only the identity of the creator, the period, culture and source or origin of the lot, as the case may be, as set forth in the BOLD TYPE heading of the print catalog entry. The right of rescission does not extend to: (a) works of art executed before 1870 (unless
these works are determined to be counterfeits created since 1870), as this is a matter of current scholarly opinion which can change; (b) titles, descriptions, or other identification of offered lots, which information normally appears in lower case type below the BOLD TYPE heading identifying the Authorship; (c) Authorship of any lot where it was specifically mentioned that there exists a conflict of specialist or scholarly opinion regarding the Authorship of the lot at the time of sale; (d)Authorship of any lot which as of the date of sale was in scholars and specialists regarding the same; or (e) the identification of periods or dates of creation in catalog descriptions which may be proven inaccurate by means of scientific processes that are not generally accepted for use until after publication of the catalog in which the property is offered or that were unreasonably expensive or impractical to use at the time of such publication.
LIMITATION OF LIABILITY
EXCEPT AS EXPRESSLY PROVIDED ABOVE, ALL PROPERTY IS SOLD "AS IS." NEITHER BONHAMS NOR THE CONSIGNOR MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY, FITNESS OR CONDITION OF THE PROPERTY OR AS TO THE CORRECTNES 0F DESCRIPTION, GENUINENESS,TRIBUTION,PROVENANCE OR PERIOD OF THE PROPERTY OR AS TO WHETHER THE PURCHASER ACQUIRES ANY COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS IN LOTS SOLD OR AS TO WHETHER A WORK OF ART IS SUBJECT TO THE ARTIST'S MORAL RIGHTS OR OTHER RESIDUAL RIGHTS OF THE ARTIST. THE PURCHASER EXPRESSLY ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL BONHAMS BE LIABLE FOR ANY DAMAGES INCLUDING, WITHOUT LIMITATION, ANY COMPENSATORY, INCIDENTAL OR CONSEQUENTIAL DAMAGES.