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HomeMy WebLinkAbout020308 RES - 05/10/1988A RESOLUTION AUTHORIZING THE EXECUTION OF AGREEMENTS FOR THE PURCHASE OF ARTWORK FOR THE CENTRAL LIBRARY WITH THOMAS SEAWELL, BENITO HUERTA, AND DEE WOLFF. 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 Agreements for the Purchase of Artwork for the Central Library with Thomas Seawell for $4,800; Benito Huerta for $11,000; and Dee Wolff for $4,400; all as more fully set forth in the Agreements for the Purchase of Artwork, substantial copies of which are attached hereto and made a part hereof, marked Exhibits A, B, and C respectively. ATTEST: 44A-ffl-IS2 Ci y ecretary OR M THE CITY OF CORPUS CHRISTI, TEXAS APPROVED: ,27/4 DAY OF , 19 ?",f HAL GEORGE, CITY ATTORNEY By Assistant City Attorney 206RP061.res zoaos MICROFILMED (2/16/88) AGREEMENT FOR THE PURCHASE OF ARTWORK FOR THE CITY OF CORPUS CHRISTI PUBLIC ART PROGRAM THIS AGREEMENT is made and entered into this day of , 19 , by and between the City of Corpus Christi, located Nueces County, Texas, (the "City") a municipal corporation, acting by and through its duly authorized City Manager and Thomas Seawell, ithe "Artist") residing at P.O. Box 14 - Starling, New York, 13156-0014. WHEREAS, the City is implementing the Public Art Program pursuant to Ordinance No.. 19663, by appropriating certain funds for the establishment of artworks in public places and authorizing payments for the design, execution, fabrication, transportation, acquisition, installation and maintenance of works of art and the support of an artist selection process; and WHEREAS, the Public Art Fund for the Library Department and its Central Library facility (the "City Facility") has been allocated for the selection, purchase and placement of a work of art at, in or near said City Facility; and WHEREAS, the Artist has created two-dimensional works of art (the "work") which the City has selected through the Public Art Ordinance, No. 19663, and Program Guidelines as a suitable public artwork for the said City Facility; and WHEREAS, the Artist has indicated a desire to transfer the title and possession of the Work to the City; NOW, THEREFORE, the City and the Artist, for and in consideration of the cove- nants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: ARTICLE I SCOPE OF SERVICES 1.1. General. The Artist shall perform all services and furnish all supplies, material and equipment as necessary for the transportation and installation of the Work as hereinafter specified. 1.2. The Work. The Work under this Agreement is to transfer title to and to install, the following: Title: "EMPTY/Emyty:empty centers" Date of Execution: December 1979 to 1983 Dimensions of Artwork: Image size - 15"x20"; framed size 22"x27" Materials (Artwork): oil poster inks on paper. A limited edition of ten (10) Serigraphs as described above. The site selected for installation of the Work is described in Exhibit "A". 1.3. Maintenance. Upon delivery of the work, the artist shall supply the City with the recommended maintenance requirements for the work. hai, (2/16/88) ARTICLE 2 SCHEDULE The Artist shall be responsible for shipping and delivery of the Work by June 30, 1988. The Artist shall notify the City in writing at least ten (10) days prior to the date the Work shall be ready for installation. Time extensions shall be granted by the City to the extent the Artist actually incurs delays in the delivery of the Work due to circumstances unforeseen by Artist as of the time of execution of this Agreement. ARTICLE 3 PAYMENT FOR ARTWORK The Artist shall, upon receipt and installation of the Works and delivery of materials, and other documents required under Article 7 hereof, be paid by the City a total of Four Thousand Eight Hundred Dollars ($4,800), under the following condi- tions. The Artist shall submit a billing on an invoice form supplied by the City, when he has completed all the terms of this Agreement, which invoice shall serve to pass title and right to possession of the Work to the City. the City shall process the voucher and make payment to the Artist within forty-five (45) days of receipt. The City shall supply to the Artist the appropriate tax exemption certificates to prove no Federal, State or local taxes are due on this transaction. ARTICLE 4 TERMINATION a. If the Works are deemed by the City to have not been fairly represented in the slide(s) of the Works, in image and/or in quality of materials or technique, the City retains the right to refuse acceptance of the Works and to terminate this Agreement, within thirty (30) days of delivery of the Works. b. If, through any cause, the Artist shall fail to fulfill in a timely and proper manner his obligation under this Agreement, or if the Artist shall violate any of the covenants, agreements or stipulation of this Agreement, the City shall thereupon have the right to terminate this Agreement by giving written notice to the Artist, specifying the reasons for such termination and the effective date thereof, which shall be no less than ten (10) days from date of receipt of the termination notice by Artist. ARTICLE 5 INDEMNIFICATION The Artist shall defend, protect, indemnify and save harmless the City, its officers, agents, employees and assigns, from and against any and all damages, claims, suits, and/or actions arising from any act, activity or omission of the Artist or any of his employees or agents in the performance of this Agreement arising from acts occurring before the Works are installed. Upon completion of delivery of the Works, the Artist's liability and responsibility for the Works is terminated except as set forth in Article 6 hereof. -2- (2/16/88) ARTICLE 6 RISK OF LOSS AND INSURANCE The risk of damage to or loss of the Works prior to final delivery and accep- tance of that delivery by the Public Art Coordinator shall be solely that of the Artist. The Artist shall provide a policy of insurance, covering all risks and hazards against any damage to or loss of the Works while it is being stored and delivered. A certificate of insurance shall be tendered to the Public Art Coordina- tor's office within the (10) days of the execution of this Agreement. ARTICLE 7 ARTIST'S RIGHTS 7.1. Notice. The City shall, at the City's expense, provide a plaque giving public notice to the Artist, the Works titles and the years of completion. The notice shall be displayed in a public area adjacent to the Works. The City shall maintain said notice in good repair against the ravages of time, vandalism and the elements. 7.2. Maintenance. The City recognizes that maintenance of the Works on a regular basis is essential to the integrity of the Work. The City shall reasonably assume that the Works are properly maintained and protected and shall reasonably protect and maintain the Works against the ravages of time, vandalism and the elements. 7.3. Repairs and Restoration. a. As provided in the Guidelines, the City shall have the right to determine, when and if repairs and restorations to the Works will be made. During the Artist's lifetime and to the extent practicable, the City shall give the Artist the right to approve all repairs and restorations; provided, however, the Artist shall not unreasonably withhold approval for any repair or restoration of the Works. If the Artist unreasonably fails to approve any repair or restoration, the City shall have the right to make such repair or restoration. To the extent practi- cable, the Artist, during Artist's lifetime, shall be given the opportunity to make or personally supervise significant repairs and restorations and shall be paid a reasonable fee for any such services, provided that the City and the Artist shall agree in writing, prior to commencement of any significant repairs and restorations, upon the Artist's fee for such services. If a reasonable fee cannot be negotiated; a fee shall be established as provided in the Guidelines. Should the Artist fail to agree to make or supervise the repairs or restora- tions, the City shall have the right to solicit bids and award contracts for the services to other qualified professionals. b. All repairs and restorations shall be made in accordance with recognized princi- ples of conservation. c. When emergency repairs are necessary in order to prevent the loss of or further damage to the Works, such repairs shall be undertaken or arranged by the City without advance notice to Artist and such repairs shall not be deemed to consti- tute artistic alteration. -3- (2/16/88) 7.4. Alteration of the Work or of the Site. a. The City agrees that it will not intentionally destroy, damage, alter, modify or change the Works without the prior written approval of the Artist. b. In the event the Works are substantially damaged or artistically altered in a substantial manner, City shall no longer represent the Work to be the Work of Artist if Artist gives written notice to the City that it is the position of Artist to deny authorship on the grounds stated in this paragraph. c. Nothing in this Section 7.4 shall preclude any right of the City to move the Work or remove it from public display, in accordance with its deaccessioning policy. If the City shall at any time decide to dispose of the Work by means other than sale or trade, it shall be notice to the Artist offer the Artist a reasonable oppor- tunity to recover the Work at no cost to the Artist except for an obligation of the Artist to indemnify and reimburse the City for the amount by which the cost to the City of such recovery exceeds the costs to the City of the proposed destruction. 7.5. Permanent Record. The City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 7.6. Artist's Address. The Artist shall notify the City of changes in his address. The failure to do so, if such failure prevents the City from locating the Artist, shall be deemed a waiver by the Artist of the right subsequently to enforce those provisions of this Article 6 that require the express approval of the Artist. Notwithstanding this provision, the City shall make every reasonable effort to locate the Artist when matters arise relating to the Artist's rights. 7.7. Resale Royalty. If, during the life of the Artist, the City sells the Work, the City shall pay the Artist a sum equal to fifteen percent (15%) of the appreciated value of the Work. For purposes of this Agreement, appreciated value shall mean the salesprice of the Work less this original fixed fee stipulated in this Agreement, as amended. Nothing in this Agreement shall be construed to impose any obligation on the City as to the method of sale or disposal. The choice of such method of sale or disposal shall be the sole right of the City. 7.8. Surviving Covenants. The covenants and obligations set forth in this Article 8 shall be binding upon the parties, their heirs, legatees, executors, administrators, assigns, transferees and all their successors in interest, and the City's covenants do attach and run with the Work and shall be binding to and until twenty (20) years after the death of the Artist. However, the obligations imposed upon the City by Sections 8.3(a) and 8.6 shall terminate on the death of the Artist. The City shall give any subsequent owner of the Work notice in writing of the covenants herein, and shall cause each such owner to be bound thereby. 7.9. Additional Rights and Remedies. Nothing contained in this Article 8 shall be construed as a limitation on such other rights and remedies available to the Artist under the law which may now or in the future be applicable. -4- (2/16/88) ARTICLE 8 WARRANTIES 8.1. Warranties of Title. The Artist represents and warrants that: a. The Work is solely the result of the artistic effort of the Artist; b. Except as otherwise disclosed in writing to the City, the Work is unique and original and does not infringe upon any copyright; - c. The Work, or a duplicate thereof, except for limited edition,has not been accepted for sale elsewhere; and d. The Work is free and clear of any liens from any source whatever. 8.2. Warranties of Ouality and Conditions. The Artist represents and warrants that: a. The Work was executed and fabricated in a workmanlike manner; b. The Work, as delivered and installed, will be free of defects in material and workmanship, including any defects consisting of "inherent vice" or qualities which cause or accelerate deterioration of the Work; and c. Reasonable maintenance of the Work will not require procedures substantially in excess of those described in the maintenance recommendations to be submitted under Article 1.3 hereof. The warranties described in this Section 8.2 shall survive for a period of one year after completion of installation of the Work. The City shall give notice to the Artist of any observed breach with reasonable promptness. the Artist shall, at the City's request, and at no cost to the City, cure reasonably and promptly the breach of any such warranty which is curable by the Artist and which cure is consistent with professional conservation standards, including but not limited to, cure by means of repair or refabrication of the Work. ARTICLE 9 REPRODUCTION RIGHTS 9.1. General. The Artist retains all rights under the Federal Copyright Act of 1976, 17 U.S.C. ** 101 et. seq., and all other rights in and to the Work except as such rights are limited by this Section 9.1. In view of the intention that the Work in its final dimension shall be unique, and except for limited edition, the Artist shall not make any additional exact duplicate, two-dimensional reproductions of the final Work, nor shall the Artist grant permission to others to do so except with the prior written permission of the City. The Artist grants to the City and its assigns an irrevocable license to make two-dimensional reproductions of the Work for non-commercial purposes, including but not limited to, reproductions used in adver- tising, brochures, stationery, media publicity, and catalogues of other similar publications, provided, that these rights are exercised in a tasteful and profession- al manner. Artist agrees to indemnify and hold harmless the City, its officials, employees, agents and contractors, and each and everyone of them from an against all claims, losses, damages, actions or expenses of every type and description, including attorney's fees, to which they may be subjected arising out of an alleged or actual copyright violation or other lack of ownership, authorship or originality. '(2/16/88) 9.2. Notice. All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: " C Artist's name, " date of publication. 9.3. Credit to City. The Artist shall use his best efforts to give a credit reading substantially, "an original Work owned and by the City of Corpus Christi," in any public showing under the Artist's control of reproductions of the Work. ARTICLE 10 ARTIST AS INDEPENDENT CONTRACTOR The Artist shall perform all work under this Agreement as an independent con- tractor and not as an agent or an employee or official of the City. The Artist shall not be supervised by any employee or official of the City nor shall the Artist exercise supervision over an employee or official of the City. ARTICLE 11 MISCELLANEOUS 11.1. Gratuities. The City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or give by the Artist or any agent or representative to any City official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to the performance of this Agreement. In the event this Agreement is cancelled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover from the Artist a sum equal in amount to the cost incurred by the Artist in providing such gratuities. 11.2. Entire Agreement. This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 11.3. Modifications. No alteration, change or modification of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of the City. 11.4. Waiver. No waiver of performance by either party shall be construed as 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. 11.5. Governing Law. This Agreement, regardless of where executed or performed, shall be governed by and construed in accordance with the laws of the State of Texas. Venue for any litigation arising from this Agreement shall be in Corpus Christi, Nueces County, Texas. 11.6. Heirs and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the City and the Artist and their respective heirs, personal represen- tatives, successors and permitted assigns. 11.7. Notices. 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 -;- (2/16/88) may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: 1. CITY OF CORPUS CHRISTI: Joe B. Rodriquez, Public Art Coordinator Multicultural Center 1581 North Chaparral Corpus Christi, Texas 78401 City Attorney's Office P. 0. Box 9277 Corpus Christi, Texas 78469-9277 Attention: Reuben Perez 2. ARTIST: Thomas Seawell P.O. Box 14 Sterling, New York 13156-0014 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. ATTEST: CITY OF CORPUS CHRISTI Armando Chapa, City Secretary APPROVED: day of 1988 Hal George, City Attorney -7- By Juan Garza, City Manager Thomas Seawell, Artist (2/16/88) AGREEMENT FOR THE PURCHASE OF ARTWORK FOR THE CITY OF CORPUS CHRISTI PUBLIC ART PROGRAM THIS AGREEMENT is made and entered into this /7 day of , 19 88, by and between the City of Corpus Christi, located Nueces County, Texas, (the "City") a municipal corporation, acting by and through its duly authorized City Manager and Benito Huerta, (the "Artist") residing at 1043 Studewood - Houston, Texas, 77008. WHEREAS, the City is implementing the Public Art Program pursuant to Ordinance No.. 19663, by appropriating certain funds for the establishment of artworks in public places and authorizing payments for the design, execution, fabrication, transportation, acquisition, installation and maintenance of works of art and the support of an artist selection process; and WHEREAS, the Public Art Fund for the Library Department and its Central Library facility (the "City Facility") has been allocated for the selection, purchase and placement of a work of art at, in or near said City Facility; and WHEREAS, the Artist has created two-dimensional works of art (the "work") which the City has selected through the Public Art Ordinance, No. 19663, and Program Guidelines as a suitable public artwork for the said City Facility; and WHEREAS, the Artist has indicated a desire to transfer the title and possession of the Work to the City; NOW, THEREFORE, the City and the Artist, for and in consideration of the cove- nants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: ARTICLE I SCOPE OF SERVICES 1.1. General. The Artist shall perform all services and furnish all supplies, material and equipment as necessary for the transportation and installation of the Work as hereinafter specified. 1.2. The Work. The Work under this Agreement is to transfer title to and to install, the following: Title: "Juarez" Date of Execution: 1987 Dimensions of Artwork: 7 feet by 11 feet -framed Materials (Artwork): Oil paint, oil stick, straw, pencil on canvas. The site selected for installation of the Work is described in Exhibit "A". 1.3. Maintenance. Upon delivery of the work, the artist shall supply the City with the recommended maintenance requirements for the work. (2/16/88) ARTICLE 2 SCHEDULE The Artist shall be responsible for shipping and delivery of the Work by June 30, 1988. The Artist shall notify the City in writing at least ten (10) days prior to the date the Work shall be ready for installation. Time extensions shall be granted by the. City to the extent the Artist actually incurs delays in the delivery of the Work due to circumstances unforeseen by Artist as of the time of execution of this Agreement. ARTICLE 3 PAYMENT FOR ARTWORK The Artist shall, upon receipt and installation of the Works and delivery of materials, and other documents required under Article 7 hereof, be paid by the City a total of Eleven Thousand Dollars ($11,000), under the following conditions. The Artist shall submit a billing on an invoice form supplied by the City, when he has completed all the terms of this Agreement, which invoice shall serve to pass title and right to possession of the Work to the City. the City shall process the voucher and make payment to the Artist within forty-five (45) days of receipt. The City shall supply to the Artist the appropriate tax exemption certificates to prove no Federal, State or local taxes are due on this transaction. ARTICLE 4 TERMINATION a. If the Works are deemed by the City to have not been fairly represented in the slide(s) of the Works, in image and/or in quality of materials or technique, the City retains the right to refuse acceptance of the Works and to terminate this Agreement, within thirty (30) days of delivery of the Works. b. If, through any cause, the Artist shall fail to fulfill in a timely and proper manner his obligation under this Agreement, or if the Artist shall violate any of the covenants, agreements or stipulation of this Agreement, the City shall thereupon have the right to terminate this Agreement by giving written notice to the Artist, specifying the reasons for such termination and the effective date thereof, which shall be no less than ten (10) days from date of receipt of the termination notice by Artist. ARTICLE 5 INDEMNIFICATION The Artist shall defend, protect, indemnify and save harmless the City, its officers, agents, employees and assigns, from and against any and all damages, claims, suits, and/or actions arising from any act, activity or omission of the Artist or any of his employees or agents in the performance of this Agreement arising from acts occurring before the Works are installed. Upon completion of delivery of the Works, the Artist's liability and responsibility for the Works is terminated except as set forth in Article 6 hereof. -2- (2/16/88) ARTICLE 6 RISK OF LOSS AND INSURANCE The risk of damage to or loss of the Works prior to final delivery and accep- tance of that delivery by the Public Art Coordinator shall be solely that of the Artist. The Artist shall provide a policy of insurance, covering all risks and hazards against any damage to or loss of the Works while it is being stored and delivered. A certificate of insurance shall be tendered to the Public Art Coordina- tor's office within the (10) days of the execution of this Agreement. ARTICLE 7 ARTIST'S RIGHTS 7.1. Notice. The City shall, at the City's expense, provide a plaque giving public notice to the Artist, the Works titles and the years of completion. The notice shall be displayed in a public area adjacent to the Works. The City shall maintain said notice in good repair against the ravages of time, vandalism and the elements. 7.2. Maintenance. The City recognizes that maintenance of the Works on a regular basis is essential to the integrity of the Work. The City shall reasonably assume that the Works are properly maintained and protected and shall reasonably protect and maintain the Works against the ravages of time, vandalism and the elements. 7.3. Repairs and Restoration. a. As provided in the Guidelines, the City shall have the right to determine, when and if repairs and restorations to the Works will be made. During the Artist's lifetime and to the extent practicable, the City shall give the Artist the right to approve all repairs and restorations; provided, however, the Artist shall not unreasonably withhold approval for any repair or restoration of the Works. If the Artist unreasonably fails to approve any repair or restoration, the City shall have the right to make such repair or restoration. To the extent practi- cable, the Artist, during Artist's lifetime, shall be given the opportunity to make or personally supervise significant repairs and restorations and shall be paid a reasonable fee for any such services, provided that the City and the Artist shall agree in writing, prior to commencement of any significant repairs and restorations, upon the Artist's fee for such services. If a reasonable fee cannot be negotiated; a fee shall be established as provided in the Guidelines. Should the Artist fail to agree to make or supervise the repairs or restora- tions, the City shall have the right to solicit bids and award contracts for the services to other qualified professionals. b. All repairs and restorations shall be made in accordance with recognized princi- ples of conservation. c. When emergency repairs are necessary in order to prevent the loss of or further damage to the Works, such repairs shall be undertaken or arranged by the City without advance notice to Artist and such repairs shall not be deemed to consti- tute artistic alteration. -3- (2/16/88) 7.4. Alteration of the Work or of the Site. a. The City agrees that it will not intentionally destroy, damage, alter, modify or change the Works without the prior written approval of the Artist. b. In the event the Works are substantially damaged or artistically altered in a substantial manner, City shall no longer represent the Work to be the Work of Artist if Artist gives written notice to the City that it is the position of Artist to deny authorship on the grounds stated in this paragraph. c. Nothing in this Section 7.4 shall preclude any right of the City to move the Work or remove it from public display, in accordance with its deaccessioning policy. If the City shall at any time decide to dispose of the Work by means other than sale or trade, it shall be notice to the Artist offer the Artist a reasonable oppor- tunity to recover the Work at no cost to the Artist except for an obligation of the Artist to indemnify and reimburse the City for the amount by which the cost to the City of such recovery exceeds the costs to the City of the proposed destruction. 7.5. Permanent Record. The City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 7.6. Artist's Address. The Artist shall notify the City of changes in his address. The failure to do so, if such failure prevents the City from locating the Artist, shall be deemed a waiver by the Artist of the right subsequently to enforce those provisions of this Article 6 that require the express approval of the Artist. Notwithstanding this provision, the City shall make every reasonable effort to locate the Artist when matters arise relating to the Artist's rights. 7.7. Resale Royalty. If, during the life of the Artist, the City sells the Work, the City shall pay the Artist a surn equal to fifteen percent (15%) of the appreciated value of the Work. For purposes of this Agreement, appreciated value shall mean the salesprice of the Work less this original fixed fee stipulated in this Agreement, as amended. Nothing in this Agreement shall be construed to impose any obligation on the City as to the method of sale or disposal. The choice of such method of sale or disposal shall be the sole right of the City. 7.8. Surviving Covenants. The covenants and obligations set forth in this Article 3 shall be binding upon the parties, their heirs, legatees, executors, administrators, assigns, transferees and all their successors in interest, and the City's covenants do attach and run with the Work and shall be binding to and until twenty (20) years after the death of the Artist. However, the obligations imposed upon the City by Sections 8.3(a) and 8.6 shall terminate on the death of the Artist. The City shall give any subsequent owner of the Work notice in writing of the covenants herein, and shall cause each such owner to be bound thereby. 7.9. Additional Rights and Remedies. Nothing contained in this Article 3 shall be construed as a limitation on such other rights and remedies available to the Artist under the law which may now or in the future be applicable. -4- (2/16/88) ARTICLE 8 WARRANTIES 8.1. Warranties of Title. The Artist represents and warrants that: a. The Work is solely the result of the artistic effort of the Artist; b. Except as otherwise disclosed in writing to the City, the Work is unique and original and does not infringe upon any copyright; c. The Work, or a duplicate thereof, except for limited edition,has not been accepted for sale elsewhere; and d. The Work is free and clear of any liens from any source whatever. 8.2. Warranties of Ouality and Conditions. The Artist represents and warrants that: a. The fork was executed and fabricated in a workmanlike manner; b. The Work, as delivered and installed, will be free of defects in material and workmanship, including any defects consisting of "inherent vice" or qualities which cause or accelerate deterioration of the Work; and c. Reasonable maintenance of the Work will not require procedures substantially in excess of those described in the maintenance recommendations to be submitted under Article 1.3 hereof. The warranties described in this Section 8.2 shall survive for a period of one year after completion of installation of the Work. The City shall give notice to the Artist of any observed breach with reasonable promptness. the Artist shall, at the City's request, and at no cost to the City, cure reasonably and promptly the breach of any such warranty which is curable by the Artist and which cure is consistent with professional conservation standards, including but not limited to, cure by means of repair or refabrication of the Work. ARTICLE 9 REPRODUCTION RIGHTS 9.1. General. The Artist retains all rights under the Federal Copyright Act of 1976, 17 U.S.C. ** 101 et. sect., and all other rights in and to the Work except as such rights are limited by this Section 9.1. In view of the intention that the Work in its final dimension shall be unique, and except for limited edition, the Artist shall not make any additional exact duplicate, two-dimensional reproductions of the final Work, nor shall the Artist grant permission to others to do so except with the prior written permission of the City. The Artist grants to the City and its assigns an irrevocable license to make two-dimensional reproductions of the Work for non-commercial purposes, including but not limited to, reproductions used in adver- tising, brochures, stationery, media publicity, and catalogues of other similar publications, provided, that these rights are exercised in a tasteful and profession- al manner. Artist agrees to indemnify and hold harmless the City, its officials, employees, agents and contractors, and each and everyone of them from an against all claims, losses, damages, actions or expenses of every type and description, including attorney's fees, to which they may be subjected arising out of an alleged or actual copyright violation or other lack of ownership, authorship or originality. -5- (2/16/38) 9.2. Notice. All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: " C Artist's name, " date of publication. 9.3. Credit to City. The Artist shall use his best efforts to give a credit reading substantially, "an original Work owned and by the City of Corpus Christi," in any public showing under the Artist's control of reproductions of the Work. ARTICLE 10 ARTIST AS INDEPENDENT CONTRACTOR The Artist shall perform all work under this Agreement as an independent con- tractor and not as an agent or an employee or official of the City. The Artist shall not be supervised by any employee or official of the City nor shall the Artist exercise supervision over an employee or official of the City. ARTICLE 11 MISCELLANEOUS 11.1. Gratuities. The City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or give by the Artist or any agent or representative to any City official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to the performance of this Agreement. In the event this Agreement is cancelled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover from the Artist a sum equal in amount to the cost incurred by the Artist in providing such gratuities. 11.2. Entire Agreement. This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 11.3. Modifications. No alteration, change or modification of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of the City. 11.4. Waiver. No waiver of performance by either party shall be construed as 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. 11.5. Governing Law. This Agreement, regardless of where executed or performed, shall be governed by and construed in accordance with the laws of the State of Texas. Venue for any litigation arising from this Agreement shall be in Corpus Christi, Nueces County, Texas. 11.6. Heirs and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the City and the Artist and their respective heirs, personal represen- tatives, successors and permitted assigns. 11.7. Notices. 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 -6- (2/16/88) may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: 1. CITY OF CORPUS CHRISTI: Joe B. Rodriquez, Public Art Coordinator Multicultural Center 1581 North Chaparral Corpus Christi, Texas 78401 2. ARTIST: City Attorney's Office P. 0. Box 9277 Corpus Christi, Texas 78469-9277 Attention: Reuben Perez Benito Huerta 1043 Studewood Houston, Texas 77008 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. ATTEST: CITY OF CORPUS CHRISTI Armando Chapa, City Secretary APPROVED: day of , 1988 Hal George, City Attorney By Juan Garza, City Manager 40110011, S:enito Huerta, Artist -7- (2/16/88) AGREEMENT FOR THE PURCHASE OF ARTWORK FOR THE CITY OF CORPUS CHRISTI PUBLIC ART PROGRAM THIS AGREEMENT is made and entered into this day of , 19 by and between the City of Corpus Christi, located Nueces County, Texas, (the "City") a municipal corporation, acting by and through its duly authorized City Manager and Dee Wolff, (the "Artist") residing at 421 Arlington - Houston, Texas, 77007. . WHEREAS, the City is implementing the Public Art Program pursuant No.. 19663, by appropriating certain funds for the establishment of public places and authorizing payments for the design, execution, transportation, acquisition, installation and maintenance of works of support of an artist selection process; and to Ordinance artworks in fabrication, art and the WHEREAS, the Public Art Fund for the Library Department and its Central Library facility (the "City Facility") has been allocated for the selection, purchase and placement of a work of art at, in or near said City Facility; and WHEREAS, the Artist has created two-dimensional works of art (the "work") which the City has selected through the Public Art Ordinance, No. 19663, and Program Guidelines as a suitable public artwork for the said City Facility; and WHEREAS, the Artist has indicated a desire to transfer the title and of the Work to the City; NOW, THEREFORE, the City and the Artist, for and in consideration of nants and agreements hereinafter set forth, the sufficiency of which acknowledged, agree as follows: ARTICLE I SCOPE OF SERVICES possession the cove - is hereby 1.1. General. The Artist shall perform all services and furnish all supplies, material and equipment as necessary for the transportation and installation of the Work as hereinafter specified. 1.2. The Work. The Work under this Agreement is to transfer title to and to install, the following: Title: Two Paths #1 Date of Execution: 1986 Dimensions of Artwork: 22" by 30" -Framed size, 27"x31" Materials (Artwork): Gouache on Pondicherry Paper Title: Two Paths #2 Date of Execution: 1988 Dimensions of Artwork: 22"x30" -Framed size, 27"x31" Materials (Artwork): Gouache on Pondicherry Paper The site selected for installation of the Work is described in Exhibit "A". 1.3. Maintenance. Upon delivery of the work, the artist shall supply the City with the recommended maintenance requirements for the work. (2/16/88) ARTICLE 2 SCHEDULE The Artist shall be responsible for shipping and delivery of the Work by May 30, 1988. The Artist shall notify the City in writing at least ten (10) days prior to the date the Work shall be ready for installation. Time extensions shall be granted by the City to the extent the Artist actually incurs delays in the delivery of the Work due -to circumstances unforeseen by Artist as of the time of execution of this Agreement. ARTICLE 3 PAYMENT FOR ARTWORK The Artist shall, upon receipt and installation of the Works and delivery of materials, and other documents required under Article 7 hereof, be paid by the City a total of Four Thousand Four Hundred Dollars ($4,400), under the following conditions. The Artist shall submit a billing on an invoice form supplied by the City, when he has completed all the terms of this Agreement, which invoice shall serve to pass title and right to possession of the Work to the City. the City shall process the voucher and make payment to the Artist within forty-five (45) days of receipt. The City shall supply to the Artist the appropriate tax exemption certificates to prove no Federal, State or local taxes are due on this transaction. ARTICLE 4 TERMINATION a. If the Works are deemed by the City to have not been fairly represented in the slide(s) of the Works, in image and/or in quality of materials or technique, the City retains the right to refuse acceptance of the Works and to terminate this Agreement, within thirty (30) days of delivery of the Works. b. If, through any cause, the Artist shall fail to fulfill in a timely and proper manner his obligation under this Agreement, or if the Artist shall violate any of the covenants, agreements or stipulation of this Agreement, the City shall thereupon have the right to terminate this Agreement by giving written notice to the Artist, specifying the reasons for such termination and the effective date thereof, which shall be no less than ten (10) days from date of receipt of the termination notice by Artist. ARTICLE 5 INDEMNIFICATION The Artist shall defend, protect, indemnify and save harmless the City, its officers, agents, employees and assigns, from and against any and all damages, claims, suits, and/or actions arising from any act, activity or omission of the Artist or any of his employees or agents in the performance of this Agreement arising from acts occurring before the Works are installed. Upon completion of delivery of the Works, the Artist's liability and responsibility for the Works is terminated except as set forth in Article 6 hereof. -2- (2/16/88) ARTICLE 6 RISK OF LOSS AND INSURANCE The risk of damage to or loss of the Works prior to final delivery and acceptance of that delivery by the Public Art Coordinator shall be solely that of the Artist. The Artist shall provide a policy of insurance, covering all risks and hazards against any damage to or loss of the Works while it is being stored and delivered. A certificate of insurance shall be tendered to the Public Art Coordinator's office within the (10) days of the execution of this Agreement.' ARTICLE 7 ARTIST'S RIGHTS 7.1. Notice. The City shall, at the City's expense, provide a plaque giving public notice to the Artist, the Works titles and the years of completion. The notice shall be displayed in a public area adjacent to the Works. The City shall maintain said notice in good repair against the ravages of time, vandalism and the elements. 7.2. Maintenance. The City recognizes that maintenance of the Works on a regular basis is essential to the integrity of the Work. The City shall reasonably assume that the Works are properly maintained and protected and shall reasonably protect and maintain the Works against the ravages of time, vandalism and the elements. 7.3. Repairs and Restoration. a. As provided in the Guidelines, the City shall have the right to determine, when and if repairs and restorations to the Works will be made. During the Artist's lifetime and to the extent practicable, the City shall give the Artist the right to approve all repairs and restorations; provided, however, the Artist shall not unreasonably withhold approval for any repair or restoration of the Works. If the Artist unreasonably fails to approve any repair or restoration, the City shall have the right to make such repair or restoration. To the extent practi- cable, the Artist, during Artist's lifetime, shall be given the opportunity to make or personally supervise significant repairs and restorations and shall be paid a reasonable fee for any such services, provided that the City and the Artist shall agree in writing, prior to commencement of any significant repairs and restorations, upon the Artist's fee for such services. If a reasonable fee cannot be negotiated; a fee shall be established as provided in the Guidelines. Should the Artist fail to agree to make or supervise the repairs or restora- tions, the City shall have the right to solicit bids and award contracts for the services to other qualified professionals. b. All repairs and restorations shall be made in accordance with recognized princi- ples of conservation. c. When emergency repairs are necessary in order to prevent the loss of or further damage to the Works, such repairs shall be undertaken or arranged by the City without advance notice to Artist and such repairs shall not be deemed to consti- tute artistic alteration. 7.4. Alteration of the Work or of the Site. a. The City agrees that it will not intentionally destroy, damage, alter, modify or change the Works without the prior written approval of the Artist. -3- (2/16/88) b. In the event the Works are substantially damaged or artistically altered in a substantial manner, City shall no longer represent the Work to be the Work of Artist if Artist gives written notice to the City that it is the position of Artist to deny authorship on the grounds stated in this paragraph. c. Nothing in this Section 7.4 shall preclude any right of the City to move the Work or remove it from public display, in accordance with its deaccessioning policy. If the City shall at any time decide to dispose of the Work by means other than sale or trade, it shall be notice to the Artist offer the Artist a reasonable oppor- tunity to recover the Work at no cost to the Artist except for an obligation of the Artist to indemnify and reimburse the City for the amount by which the cost to the City of such recovery exceeds the costs to the City of the proposed destruction. 7.5. Permanent Record. The City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 7.6. Artist's Address. The Artist shall notify the City of changes in his address. The failure to do so, if such failure prevents the City from locating the Artist, shall be deemed a waiver by the Artist of the right subsequently to enforce those provisions of this Article 6 that require the express approval of the Artist. Notwithstanding this provision, the City shall make every reasonable effort to locate the Artist when matters arise relating to the Artist's rights. 7.7. Resale Royalty. If, during the life of the Artist, the City sells the Work, the City shall pay the Artist a sum equal to fifteen percent (15%) of the appreciated value of the Work. For purposes of this Agreement, appreciated value shall mean the salesprice of the Work less this original fixed fee stipulated in this Agreement, as amended. Nothing in this Agreement shall be construed to impose any obligation on the City as to the method of sale or disposal. The choice of such method of sale or disposal shall be the sole right of the City. 7.8. Surviving Covenants. The covenants and obligations set forth in this Article 8 shall be binding upon the parties, their heirs, legatees, executors, administrators, assigns, transferees and all their successors in interest, and the City's covenants do attach and run with the Work and shall be binding to and until twenty (20) years after the death of the Artist. However, the obligations imposed upon the City by Sections 8.3(a) and 8.6 shall terminate on the death of the Artist. The City shall give any subsequent owner of the Work notice in writing of the covenants herein, and shall cause each such owner to be bound thereby. 7.9. Additional Rights and Remedies. Nothing contained in this Article 8 shall be construed as a limitation on such other rights and remedies available to the Artist under the law which may now or in the future be applicable. -4- (2/16/88) ARTICLE 8 WARRANTIES 8.1. Warranties of Title. The Artist represents and warrants that: a. The Work is solely the result of the artistic effort of the Artist; b. Except as otherwise disclosed in writing to the City, the Work is unique and original and does not infringe upon any copyright; c. The Work, or a duplicate thereof, except for limited edition,has not been accepted for sale elsewhere; and d. The Work is free and clear of any liens from any source whatever. 8.2. Warranties of Quality and Conditions. The Artist represents and warrants that: a. The Work was executed and fabricated in a workmanlike manner; b. The Work, as delivered and installed, will be free of defects in material and workmanship, including any defects consisting of "inherent vice" or qualities which cause or accelerate deterioration of the Work; and c. Reasonable maintenance of the Work will not require procedures substantially in excess of those described in the maintenance recommendations to be submitted under Article 1.3 hereof. The warranties described in this Section 8.2 shall survive for a period of one year after completion of installation of the Work. The City shall give notice to the Artist of any observed breach with reasonable promptness. the Artist shall, at the City's request, and at no cost to the City, cure reasonably and promptly the breach of any such warranty which is curable by the Artist and which cure is consistent with professional conservation standards, including but not limited to, cure by means of repair or refabrication of the Work. ARTICLE 9 REPRODUCTION RIGHTS 9.1. General. The Artist retains all rights under the Federal Copyright Act of 1976, 17 U.S.C. ** 101 et. seq., and all other rights in and to the Work except as such rights are limited by this Section 9.1. In view of the intention that the Work in its final dimension shall be unique, and except for limited edition, the Artist shall not make any additional exact duplicate, two-dimensional reproductions of the final Work, nor shall the Artist grant permission to others to do so except with the prior written permission of the City. The Artist grants to the City and its assigns an irrevocable license to make two-dimensional reproductions of the Work for non-commercial purposes, including but not limited to, reproductions used in advertising, brochures, stationery, media publicity, and catalogues of other similar publications, provided, that these rights are exercised in a tasteful and professional manner. Artist agrees to indemnify and hold harmless the City, its officials, employees, agents and contractors, and each and everyone of them from an against all claims, losses, damages, actions or expenses of every type and description, including attorney's fees, to which they may be subjected arising out of an alleged or actual copyright violation or other lack of ownership, authorship or originality. - - (2/16/88) 9.2. Notice. All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: " C Artist's name, " date of publication. 9.3. Credit to City. The Artist shall use his best efforts to give a credit reading substantially, "an original Work owned and by the City of Corpus Christi," in any public showing under the Artist's control of reproductions of the Work. ARTICLE 10 ARTIST AS INDEPENDENT CONTRACTOR The Artist shall perform all work under this Agreement as an independent con- tractor and not as an agent or an employee or official of the City. The Artist shall not be supervised by any employee or official of the City nor shall the Artist exercise supervision over an employee or official of the City. ARTICLE 11 MISCELLANEOUS 11.1. Gratuities. The City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or give by the Artist or any agent or representative to any City official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to the performance of this Agreement. In the event this Agreement is cancelled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover from the Artist a sum equal in amount to the cost incurred by the Artist in providing such gratuities. 11.2. Entire Agreement. This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 11.3. Modifications. No alteration, change or modification of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of the City. 11.4. Waiver. No waiver of performance by either party shall be construed as 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. 11.5. Governing Law. This Agreement, regardless of where executed or performed, shall be governed by and construed in accordance with the laws of the State of Texas. Venue for any litigation arising from this Agreement shall be in Corpus Christi, Nueces County, Texas. 11.6. Heirs and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the City and the Artist and their respective heirs, personal represen- tatives, successors and permitted assigns. 11.7. Notices. 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 -g- (2/16/88) may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: 1. CITY OF CORPUS CHRISTI: Joe B. Rodriquez, Public Art Coordinator Multicultural Center 1581 North Chaparral Corpus Christi, Texas 78401 2. ARTIST: City Attorney's Office P. 0. Box 9277 Corpus Christi, Texas 78469-9277 Attention: Reuben Perez Dee Wolff 421 Arlington Houston, Texas 77007 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. ATTEST: CITY OF CORPUS CHRISTI Armando Chapa, City Secretary APPROVED: day of , 1988 Hal George, City Attorney By Juan Garza, City Manager CITY OF CORPUS CHRISTI, TEXAS CERTIFICATION OF FUNDS r/ (City Charter Article IV Section Z11) 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 Nave Permanent Art Trust Fund 111-000-243.61 Artwork for Central Library from which it is proposed to be drawn, and such money is not appropriated for any other purpose. F$f�I'f97. ?. ,C A <64 Atk 1/44.3-2 FIN 2-55 Revised 7/31/69 , 19 P8 99.066.01 Corpus Christi, Texas /IA day of The above resolution was passed by the following vote: Betty N. Turner David Berlanga, Sr. Leo Guerrero Adatfift Clif Moss Bill Pruet Mary Rhodes Frank Schwing, Jr. (2,11L2 Mary Pat Slavik(fP1.--)) Linda Strong 20308 1982