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HomeMy WebLinkAbout020184 RES - 02/02/1988A RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH DANNY MICHAEL O'DOWDY FOR THE DESIGN OF A PERMANENT WORK OF ART FOR THE CENTRAL LIBRARY. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the City Manager is hereby authorized to execute an agreement in the amount of $8,500 with Danny Michael O'Dowdy for the design of a permanent work of art for the Central Library, all as more fully set forth in the agreement, a substantial copy of which is attached hereto and made a part hereof, marked Exhibit "A." ATTEST: Lam.ely City Secretary APPROVED: MA DAY OF CTilAv , 19 2i HAL GEORGE, CITY ATTORNEY By 1()46,&,-)/ si tant City Attorn5 A sistant Attorni 205RP056.res THE CITY OF CORPUS CHRISTI, TEXAS 20184 MICROFILMED THE STATE OF TEXAS COUNTY OF NUECES AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK KNOW ALL MEN BY THESE PRESENTS: (1/3/88) This ARTWORK AGREEMENT entered into by and between the CITY OF CORPUS CHRISTI, TEXAS, a municipal corporation (hereinafter referred to as "City") and DANNY MICHAEL O'DOWDY (hereinafter referred to as "Artist"): W I T N E S SET H: 1. The City hereby contracts with the Artist to provide his personal and professional services in designing a permanent work of art as described in the attached Exhibit "A" (the "Artwork"), which is incorporat- ed herein by reference, to be placed in front of the Central Library near the Commanche Street entrance. The Artist agrees to provide an 8"x10", black and white photograph of the maquette at the time of the signature of this contract. 1.1. The City will arrange for the Artist to meet with represen- tatives of the community in order for the Artist to learn of their con- cerns. 1.2. The City shall within thirty (30) days following the next regularly scheduled Commission meeting after the Artist's submission of the Proposal, notify the Artists whether it approves or disapproves the Propos- al. During this period, the Artist shall be available as reasonably required to meet with the City to discuss the Proposal. 1.3. If the City shall determine that the Proposal is disap- proved, it shall provide the Artist with a written statement of its reasons for such disapproval. In such event, the Artist shall be afforded the opportunity either to submit a second Proposal for the Work within a reasonable period of time specified, or to terminate this Agreement. Within thirty (30) days following such submission by the Artist, the City shall notify the Artist in writing whether it approves or disapproves the Proposal. 2. The City hereby warrants that the Artist is selected, and funding appropriated for this project by the City through the procedures duly adopted by the City and the Municipal Arts Commission in connection with public art in Corpus Christi. 3. The City shall pay the Artist a fixed fee of Eight Thousand Five Hundred Dollars ($8,500) within thirty (30) from the execution of this agreement and approval by the City Council for preliminary design and coordination with the City and other interested parties. (1/8/88) 3.1. Structural Design Review a. At the February 6, 1988 meeting of the Selection Panel, the Artist shall, after consultation and collaboration with the project architect and other City personnel, submit to the City detailed working drawings of the' Work and the Site, together with such other graphic materi- al as may reasonably be requested by the City in order to permit the City to carry out structural design review and to certify the compliance of the Work with the applicable statutes and ordinances. Upon request by the Artist, the City and the project architect shall promptly furnish all information, and other assistance required by the Artist in connection with said submission. b. The City may require the Artist to make such revisions to the Proposal as are necessary for the Work to comply with applicable statutes, ordinances or regulations governing the project. c. The City may also request revisions of the Proposal for other practical (non -aesthetic) reasons. d. Within thirty (30) days after its receipt of the Artist's submission pursuant to the Section 3.1, the City shall notify the Artists of its approval (or disapproval) of such submission and of all revisions made in the Proposal as a result thereof. Revisions made pursu- ant to this Section 3.1 become a part of the Proposal. 3.2. Execution of Work a. After written approval of the submissions and revisions made pursuant to Section 1.3, the Artist shall within thirty (30) days furnish to the City a tentative schedule for completion of fabrication and installation of the Work, including a schedule for the submission of progress reports, if any. After written approval of the schedule by the City, the Artist shall enter into an agreement with the City for the fabrication and installation of the work, a copy of which is attached hereto as Exhibit "B". 4. The Artist agrees to indemnify and forever save harmless the City, its officers, agents, and employees, from any and all lawsuits, claims, demands, liabilities, losses and expenses, including court costs and attorney's fees, for or on account of any injury to any person, or death at any time resulting from such injury, or any damage to property, which may arise in connection with the design, production, delivery, and installation of the Artwork as provided under this Agreement. Artist agrees to secure and maintain at his own expense throughout the term of this Agreement comprehensive general liability insurance. Coverage should go into effect on or before March 1, 1988. The insurance policy shall name the City as Additional Insured and shall provide that the City be given at least thirty (30) days written notice of cancellation, material change, or intent not to renew any insurance coverages required hereunder. Minimum limits of coverage shall be $100,000 per person and $300,000 per occurrence for bodily injury or death and $50,000 for property damage. 5. Title to the work shall pass to the City upon final accep- tance. Furthermore, upon final acceptance, all studies, drawings, designs, (1/8/88) maquettes and models prepared and submitted under this Agreement or in connection with this Agreement shall be returned to the Artist and shall belong to the Artist with the exception of the purchased maquette. 6. The Artist shall perform all work under this Agreement as independent contractor and not as an agent or employee of the City. The Artist shall not be supervised by any employee of the City nor shall the Artist exercise supervision over any employee or official of the City. 7. If either party to this Agreement shall willfully or negli- gently fail to fulfill in a timely and proper manner, or otherwise violate any of the covenants, agreements or stipulations material to this Agree- ment, the other party shall thereupon have the right to terminate this Agreement by giving written notice to the defaulting party of its intent to terminate specifying the grounds for termination. The defaulting party shall have thirty (30) days after receipt of the notice to cure the de- fault. If it is not cured, then this Agreement shall terminate. "Artistic Merit" of the Work of Art shall not be grounds for termination of this Agreement, provided however, that "artistic merit" does not include claims for default or breaches of this Agreement by Artist for deficiencies in quality of construction or workmanship of the Work of Art. 8. The Artist retains all rights under the Copyright Act of 1976, 17 USC Sections 101 et seq and all other rights in and to the work except ownership and possession, except if such rights are limited by this paragraph. In view of the intention that the completed Work of Art shall be unique, the Artist shall not make any additional exact duplicate, two or three dimensional reproductions of the final work or permit others to do so except by written permission of the City. In that regard, the City hereby grants to the Artist its permission to make exact, duplicate two-dimension- al reproductions of the work for inclusion in advertising, brochures, media publicity, catalogs, portfolios or other similar publications, provided that the reproductions are presented in a tasteful and professional manner. Similarly, the Artist shall use their best efforts to give credit reading substantially, "an original work owned and commissioned by the City of Corpus Christi, Texas: in any reproductions of the work. 9. This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and under- standings, oral or Written, with reference to the subject matter hereof, that are not merged herein and superseded hereby. 10. No alteration, change or modifications of the terms of the agreement shall be valid unless made in writing and signed by parties hereto. 11. No waiver of performance by either party shall be construed, or operate as a waiver of any subsequent default of any terms, covenants and conditions of this agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. (1/8/88) 12. This agreement, regardless of where executed, shall be governed by and construed in accordance with the laws of the State of Texas. 13. This agreement shall be binding upon and shall inure to the benefit of the City and the Artist and his respective heirs, personal representatives, successors and permitted assigns. 14. All notices, requests, demands and other communications which are required or permitted to be given under this agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage pre -paid, as follows: (a) If the City, -to the office of the City Manager. (b) If to the Artist, Danny Michael O'Dowdy, 2841 Austin Street, Corpus Christi, Texas 78404. IN WITNESS WHEREOF this agreement is executed in duplicate originals, both of equal force and effect, as of this day of , 198_ ATTEST: CITY OF CORPUS CHRISTI, TEXAS Armando Chapa, City Secretary Craig A. McDowell, City Manager APPROVED: day of , 198 Rany Michael O'Dowdy, Artist Hal George, City Attorney EXHIBIT "A" The "Sunseeker" sculpture: - The sculpture will be twelve (12) feet high. - Constructed of ferro-cement, with portions_of inlaid ceramic tile. - Sculpture base will provide bench for sitting. THE STATE OF TEXAS COUNTY OF NUECES EXHIBIT "B" PUBLIC ARTWORK FABRICATION AGREEMENT KNOW ALL MEN BY THESE PRESENTS: (1/8/88) This ARTWORK FABRICATION AGREEMENT entered into by and between the CITY OF CORPUS CHRISTI, TEXAS, a municipal corporation (hereinafter referred to as "City") and DANNY MICHAEL O'DOWDY (hereinafter referred to as "Artist") W ITNESSET H: 1. The City hereby contracts with the Artist to provide his personal and professional services in constructing a permanent work of art as described in the attached Plans and Specifications (the "Artwork"), which is incorporated herein by reference, to be placed in front of the Central Library near the Comanche Street entrance. The Artist agrees to do all work as provided in the attached Plans and Specifications and shall do such additional work as may be reasonably necessary to complete the work in accordance with said Plans and Specifications. The Artist shall furnish all labor, tools, material, machinery, equipment and incidentals reasonably necessary to the execution of the work unless otherwise provided in this agreement. The Artwork shall be completely installed at the Central Library by October 2, 1988 with a two week grace period insuring final completion by October 15, 1988. 2. The City hereby warrants that the Artist is selected, and funding appropriated for this project by the City through the procedures duly adopted by the City and the Municipal Arts Commission in connection with public art in Corpus Christi. 3. The City shall pay the Artist a fixed fee of Seventeen Thousand Five Hundred Dollars ($17,500) which shall constitute full compen- sation for all services and materials to be performed and furnished by the Artist under this Agreement. The fee shall be paid in the following installments, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the payment thereof: (a) Eight Thousand Five Hundred Dollars ($8,500) within twenty (20) days after the Artist notifies the City that the structural work is fabricated and ready for application of ferro cement and tile; (b) Nine Thousand Dollars ($9,000) within twenty (20) days after final installation and acceptance. (1/8/88) The Artist's fee shall be equitably adjusted for any increase in the Artist's cost of, or time required for, performance of any services result- ing from structural design review by the City. Any claim of the Artist for adjustment under this paragraph must be asserted in writing within thirty (30) days after the date of the revision by the Artist. 3.1. Execution of Work a. After written approval of the submissions and revisions made pursuant to structural design review by the City, the Artist shall within thirty (30) days furnish to the City a tentative schedule for completion of fabrication and installation of the Work, including a sched- ule for the submission of progress reports, if any. After written approval of the schedule by the City, the Artist shall fabricate, transport and install the Work in accordance with such schedule. Such schedule may be amended by written agreement between the City and the Artist. b. The City shall have the right to review the Work at reasonable times during the fabrication thereof. The Artist shall submit to the City progress reports in accordance with the schedule provided by this agreement. c. The Artist shall complete the fabrication and installa- tion of the Work in substantial conformity with the Proposal. d. The Artist shall present to the City in writing for further review and approval any significant changes in the scope, design, color, size, material or texture of the Work not permitted by or not in substantial conformity with the Proposal. A significant change is any change in the scope, design, color, size, material, texture or location on the Site of the Work which affects installation, scheduling, site prepara- tion or maintenance for the Work or the concept of the Work as presented in the Proposal. 4. The Artist shall notify the City at a regular meeting of the Municipal Arts Commission when the work has been substantially completed (including installation) in accordance with the Plans and Specifications. In turn, the City shall notify the Artist in writing of its final accep- tance of the Work. Final acceptance shall be effective on the thirtieth (30th) day after the Artist has notified the Commission of substantial completion unless the City gives the Artist written notice specifying such services or items which are not completed. After such notification to the Artist, final acceptance shall be effective as of the date of the City's written notification to the Artist of final acceptance. In this regard, the City agrees that final acceptance shall not be unreasonably withheld. 5. The Artist agrees that, upon substantial completion of the work and before final payment, he shall clean and remove from the work site all surplus and discarded materials, temporary structures, and debris of every kind occasioned by his work in order to leave the work site in a clean and orderly condition, substantially the same as that which original- ly existed. -2- (1/8/88) 6. All work shall be performed in a good and workmanlike manner and in accordance with the Plans and Specifications. Both parties to this contract shall keep each other informed of the progress of the Central Library project. 7. The Artist may subcontract installation of the work and tile fabrication at his expense provided that said subcontracting shall not effect the design, appearance or visual quality of the work and that such work is carried out under the personal supervision of the Artist. 8. The Artist shall at all times observe and comply with all city, state, county and federal laws, ordinances and regulations which in any manner effect the conduct of the work. 9. No party to this Agreement shall be liable for failures and delays in performance due to any cause or circumstances beyond their control, including, without hereby limiting the generalities of the forego- ing, any failures or delays in performance caused by strikes, lock outs, fires, acts of God or the public enemy, common carrier, inclement weather, riots, interference by civil or military authorities, or compliance with federal, state, county or city law. 10. The Artist agrees to indemnify and forever save harmless the City, its officers, agents, and employees, from any and all lawsuits, claims, demands, liabilities, losses and expenses, including court costs and attorney's fees, for or on account of any injury to any person, or death at any time resulting from such injury, or any damage to property, which may arise in connection with the production, delivery, and installa- tion of the Artwork as provided under this Agreement. Artist agrees to secure and maintain at his own expense throughout the term of this Agree- ment comprehensive general liability insurance. Coverage should go into effect on or before February 6, 1988. The insurance policy shall name the City as Additional Insured and shall provide that the City be given at least thirty (30) days written notice of cancellation, material change, or intent not to renew any insurance coverages required hereunder. Minimum limits of coverage shall be $100,000 per person and $300,000 per occurrence for bodily injury or death and $50,000 for property damage. 11. Title to the work shall pass to the City upon final accep- tance. Furthermore, upon final acceptance, all studies, drawings, designs, maquettes and models prepared and submitted under this Agreement or in connection with this Agreement shall be returned to the Artist and shall belong to the Artist with the exception of the purchased maquette. 12. The City shall, at its expense, prepare and install at the site a plaque identifying the Artist, the year of completion of the work, and shall reasonably maintain such notice in good repair. The content and placement of said plaque shall be determined by mutual agreement between the Artist and the City. 13. The Artist shall perform all work under this Agreement as independent contractor and not as an agent or employee of the City. The -3- (1/8/88) Artist shall not be supervised by any employee of the City nor shall the Artist exercise supervision over any employee or official of the City. 14. If either party to this Agreement shall willfully or negli- gently fail to fulfill in a timely and proper manner, or otherwise violate any of the covenants, agreements or stipulations material to this Agree- ment, the other party shall thereupon have the right to terminate this Agreement by giving written notice to the defaulting party of its intent to terminate specifying the grounds for termination. The defaulting party shall have thirty (30) days after receipt of the notice to cure the de- fault. If it is not cured, then this Agreement shall terminate. "Artistic Merit" of the Work of Art shall not be grounds for termination of this Agreement, provided however, that "artistic merit" does not include claims for default or breaches of this Agreement by Artist for deficiencies in quality of construction or workmanship of the Work of Art. 15. The Artist retains all rights under the Copyright Act of 1976, 17 USC Sections 101 et seq and all other rights in and to the work except ownership and possession, except if such rights are limited by this paragraph. In view of the intention that the completed Work of Art shall be unique, the Artist shall not make any additional exact duplicate, two or three dimensional reproductions of the final work or permit others to do so except by written permission of the City. In that regard, the City hereby grants to the Artist its permission to make exact, duplicate two-dimension- al reproductions of the work for inclusion in advertising, brochures, media publicity, catalogs, portfolios or other similar publications, provided that the reproductions are presented in a tasteful and professional manner. Similarly, the Artist shall use their best efforts to give credit reading substantially, "an original work owned and commissioned by the City of Corpus Christi, Texas: in any reproductions of the work. 16. This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and under- standings, oral or Written, with reference to the subject matter hereof, that are not merged herein and superseded hereby. 17. No alteration, change or modifications of the terms of the agreement shall be valid unless made in writing and signed by parties hereto. 18. No waiver of performance by either party shall be construed, or operate as a waiver of any subsequent default of any terms, covenants and conditions of this agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 19. This agreement, regardless of where executed, shall be governed by and construed in accordance with the laws of the State of Texas. 20. This agreement shall be binding upon and shall inure to the benefit of the City and the Artist and his respective heirs, personal representatives, successors and permitted assigns. -4- (1/8/88) 21. All notices, requests, demands and other communications which are required or permitted to be given under this agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage pre -paid, as follows: (a) If the City, to the office of the City Manager. (b) If to the Artist, Danny Michael O'Dowdy, 2841 Austin Street, Corpus Christi, Texas 78404. IN WITNESS WHEREOF this agreement is executed in duplicate originals, both of equal force and effect, as of this day of- 198_ ATTEST: CITY OF CORPUS CHRISTI, TEXAS Armando Chapa, City Secretary Craig A. McDowell, City Manager APPROVED: day of , 198 Danny Michael O'Dowdy, Artist Hal George, City Attorney -5- CITY OF CORPUS CHRISTI, TEAS CERTIFICATION OF FUNDS (City Charter Article IV Section 21) 1/11/88 I certify to the City Council that $ 25.000 , the amount required for the contract, agreement, obligation or expenditures contemplated in the above and foregoing ordinance is in the Treasury of the City of Corpus Christi to the credit of: Fund No. and Name Project NO. Permanent Art Trust Fund 111-000-243.61 Project Name Artwork for Central Library from which it is proposed to be drawn, and such money is not appropriated for any other purpose. G� 0ai 19 _ /9 /c I it FIN 2-55 Revised 7/31/69 (:2,tdattl,„ Direct° f Finance CITY OF CORPUS CHRISTI, TEXAS CERTIFICATION OF FUNDS (City Charter Article IV Section 21) 1/11/88 I certify to the City Council that $ 25,000 , the amount required for the contract, agreement, obligation or expenditures contemplated in the above and foregoing ordinance is in the Treasury of the City of Corpus Christi to the credit of: Fund No. and Name Project NO. Project Name Library Trust Fund 111-000-243.05 Artwork for the Central Library from which it is proposed to be drawn, and such money is not appropriated for any other purpose. 02 / 01--1-1-Ad"j Direc FIN 2-55 Revised 7/31/69 ,1938'2 Finance Corpus Christi, Texas 02 ka'day of The above resolution was passed by the following vote: Betty N. Turner David Berlanga, Sr. Leo Guerrero Clif Moss Bill Pruet Mary Rhodes Frank Schwing, Jr. Mary Pat Slavik C111._J Linda Strong 99.066.01 0.E66.en;t 20184 , 198g