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HomeMy WebLinkAboutC2007-073 - 3/27/2007 - NAARTIST AGREEMENT BETWEEN THE ARTS AND CULTURAL COMMISSION AND T14E STATE OF TEXAS COUNTY OF NUECES MELANIE STIMMELL KNOW ALL BY THESE PRESENTS This agreement ( "Agreement ") is entered into by and between the City of Corpus Christi, Texas, a home -rule municipal corporation ( "City "), acting through its duly authorized Director of Parks and Recreation ( "Director") and its duly appointed Arts and Cultural Commission ( "ACC "), and Melanie Stimmell, an independent artist ( "Artist "), S$ #XXX -XX -3888 (numbers intentionally deleted; incorporated by reference as if fully set out herein retained on file). WHEREAS, the City has allocated funds to the ACC for the selection and psyment of a public work of temporary art ( "Artwork ") to be located at, in, or near the selected site of the City's 2007 Festival of the Arts ( "Project Poemiaes"); VMEREAS, the ACC desires to contract directly with the Artist; WHEREAS, the ACC and the Artist wish to set out the terms and conditions under which the Artwork and related performance expenses of the AtRist are to be purchased by the ACC. NOON, THEREFORE, the City and the Artist, for and in consideration of the cove -nants and agreements set out in this Agreement, the sufficiency of which is hereby ac- knowledged, agree as follows- 2007-073 03/27/07 Stimmell, Melanie Section 1. Preamble Language. The preamble language included above this initial numerated section is incorporated into this Agreement by reference and made a part of this Agreement for all intents and purposes. Section 2. Contract Administrator. The ACC's contract administrator for this Agree -ment is the City's Director, with the review and approval of the ACC. Section 3. Scope of Artwork and Performance. (A) The ACC, through this Agreement, contracts with the Artist to provide the following: the Artist shall create a street painting, approximately 12'x 15' in size, in chalk pastels on asphalt paving of the City for the 2007 Corpus Christi Festival of the Arts, to be held in Corpus Christi, Texas, from Friday, March 30, 2007, to Sunday, April 1, 2007 ( "Festival "), conduct two student educational workshops on March 30, 2007, and conduct a technique workshop on March 31, 2007 ( "Workshops "); and participate in various types of media exposure reports and interviews to be held in corqunction with the Festival. The Artist shall also attend, as a featured guest, an artists reception to be held on Friday, March 30, 2007, from 5 :30 p.m. until 8 p.m. CST, such reception being held in conjunction with the Festival, at the historic Galvan House located in the City's Heritage Park. (S) The Artist warrants that the Artwork will be an original work of art designed solely by the Artist and, the Artwork will be created solely through the skills of the Artist and any apprentices or assistants working under the Artist's direct supervision and control. The advance design of the Artwork to be displayed has been communicated by the Artist to the ACC, and the purchase of this Artwork has been reviewed and approved by the City's ACC. The warranty provisions contained in this section survive the expiration of this Agreement. (C) The Artist shall be present to create the Artwork and perform related responsibilities from the hours of 9:30 a.m. until 4 p.m. CST on Friday, March 30, 2007. and Saturday, March 31, 2007, and from noon until 4:30 p.m. CST on Sunday, April 1, 2007. The Artist shall be present for the general public to view the Artist and the artwork in progress, with the Artwork to be completed no later than 4:30 p.m. CST on Sunday, April 1, 2007, weather permitting. (D) The Workshops to be held by the Artist are at the discretion of the ACC. If so arranged by the ACC, the Workshops will each consist of a 30 -45 minute slide or PowerPoint software -aided lecture and an actual drawing demonstration, to be followed by an open discussion of street painting with chalk. It is anticipated by the ACC that the Workshops may be held on Friday, March 30, 2007, and will consist of a morning session, to be held from 9:30 a.m. until 11 a.m. CST, and an afternoon session, to be held from 1,:30 p.m until I p.m. CST Section 4. Compensation and Payment Schedule. (A) The ACC will pay directly to the Artist, as consideration under this A$reernent, a fixed fee of $1,500 to be paid in two parts. Advance and partial compensation, in the amount of $500, will be paid for the purchase of the Artwork and the related performance duties of the Artist under this Agreement no later than March 23, 2007: however, if the Agree -ment is executed by the Artist, received by the City before March 23, 2007, and the ACC has funds available to payment, payment may be remitted to the Artist prior to March 23, 2007. The remainder portion, in the amount of $1,000, for the purchase of the Artwork and the related performance duties of the Artist under this Agreement is to be paid no later than 5 p.m. CST on April 1, 2007, or at the conclusion of the completion of the Artwork on April 1, 2007, whichever occurs later. The advance payment of compensa -tion to the Artist will not be deemed a waiver of arty right of the City nor acceptance, by the City, of defective performance by the Artist. (BB) As further consideration, the ACC shall be responsible for full payment and the securing of round -trip air transportation for the Artist, with arrangements acceptable to the Artist and ACC and meeting the provisions of this Agreement, to the City for creation of the Artwork and the Artist's related performance. (C) As further additional consideration, the ACC shall be responsible for full payment and the securing of not less than three nights of single -room hotel accommodations within the City for the Artist. The payment and securing of any additional accommodations beyond the time period stated are at the sole discretion of the ACC. Section 5. Taxes. The Artist is solely responsible for the payment of any and all taxes that may become due to any taxing authority, agency, or entity with respect to the creation, performance, and sale, to the City, of the Artwork. Suction S. Public Information by Artist. As the funds provided to compensate the Artist for performance and for this Artwork are public funds, the Artist shall adknowWge the ACC's and City's role in funding the Artwork in all public pr'sentations and written, printed, or electronic publications of the Artwork folowing the Artist's execution of this Agreement and completion of the Artwork. TNs oblation of the Artist survives the expiration of this Agreement. Section 7. Title; Copyright and License to Reproduce. (A) Title to the Artwork passes to the City upon final remittance by the ACC of payment to the Artist (B) The Artist retains all rights under the Copyright Act of 1976, 17 United Sues Code, Sections 101 et seq., as it may be amended, and all other rights in and to the work except ownership and possession. Notwithstanding the foregoing, the Artist grants to the City an irrevocable license to graphically reproduce, through photography or otherwise, the image of the Artwork including, but not limited to, any proposed designs of the Artwork that have been delivered to the ACC and the City and the completed Artwork image, and to authorize third parties to graphically reproduce, through photography or otherwise, any and all of the same as are desired by the City for municipal purposes, e.g., education, public information, and similar public purposes. For the purposes of this Agreement, the following are among those deemed to be reproductions for municipal purposes: brochures and pamphlets pertaining to the ACC or the City, reproduction in exhibition or Festival catalogues, books, slides, photographs, postcards, posters, and calendars; reproduction in art magazines, and art and news sections of newspapers; slides and film strips not intended for mass audience; and television broadcasts from stations operated for educational or news purposes or on programs for educational purposes from all stations. (ii) On each such municipal reproduction, the Artist will be acknowledged, using designations provided by the Artist, to be the creator of the original Artwork depicted, provided that reproductions of any preliminary studies and models may not be identified as or represented to be the finished Artwork. (iii) The rights granted under this section survive the expiration of this Agreement Siction 8. Indemnification. To the extent allowed by Texas law and in consideration of the p ym *nt of funds for the Artwork and the performance of the Aiirtis4 the Artist (herein after referred to as the (" indemnitor" ) sal/ fully indemnify, save, and hold harmless the City and its oiciak, officers, appointees, employees, representatives, and ants (collectively, "Indemnitees ") against any and all 110bility, damage, loss, claims, demands, and actions of any neture whatsoever on account of per -sonal injury (including, w thou limitation on the foregoing, premises defects, workers' compensation, and death claims), property loss, or damage of any kind whatsoever, including dishonest, fraudulent, negligent, or criminal acts of the Indemnitor or the Iriidemnitor's employees, representatives, or agents, acting alone or in collusion with others, which may arise out of, be caused by, or be in any way connected with, either proximately or remotely, wholly or in part, Indemnitor's design, creation, or completed fabrication of the Artwork and any act or omission of the Indemnitor or of any employee, repre- sentative, or agent of the Indemnitor pursuant to performance under the terms of this Agreement, including, but not limited to, acts related to copyright, trademark, and patent infringement. The terms of this indemnification are effective regardless of whether such hVury, damage, or loss is caused by the sole, contributory, or concurrent negligence of the Indemnitees or any of them individually. The In- demnitor covenants and agrees that, if the Indemnitee is made a party to any litigation against the Indemnitor or in any litigation commenced by any party other then Indemnitor relating to this Agreement, Indem -nitor shall, upon receipt of reasonable notice regarding commence -ment of litigation and at Indemnitor's own expense, investigate all sach Maims and demands, attend to their settlement or other dkpo- sition, defend lndemnitee in all actions based thereon with counsel satisfactory to the Indemnitee, and pay all charges of attorneys and all other costs and expenses of any kind arising from any said liability, damage, loss, claim, doman4 or action. No liability shall attach to the City by virtue of enuring into this Agreement except as is expressly provided for under this Agreement. Section 8. Artist's Warranty. The Artist warrants and guarantees that, upon the ACC's final remittance of payment to the Artist, the City acquires good title to the Artwork and that the ANwork is free from any and all claims, liens, and charges of and by any person or+entity including, but not limited to, all employees and suppliers of the Artist. Section 10. Artwork Collection Management (A) The City reserves the right to manage its collection of art, including the Artwork, con- sistent with all applicable laws, the City's Charter, ordinances, and municipal policies. The City, through this Agreement, is purchasing a work of public art, and the City, acting through the ACC and its appointed Commissioner, shall determine the Artwork's placement at the Project Premises. (B) The City reserves the right to manage its buildings, facilities, and public sites for public purposes and in doing so, may determine that it is necessary to relocate or remove the Artwork or modify the site in or on which it is located. Notwithstanding the previous statement, the Artist and the City acknowledge that the Artwork contemplated to be provided under this Agreement is temporary in nature and is highly susceptible to destruction by the natural elements and by menmade devices. Both Artist and the City agree that destruction of the Artwork w#1 eventually occur If the City decides, at any time, to destroy the work or determines that the Artwork no longer has any value to the City, the City, holding We to the Artwork, may so destroy without any recourse by the Artist. Section 11. Force Mejeure. No party to this Agreement is liable for failures or delays in performance due to any cause beyond their control including, but not limited to, any failures or delays in performance caused by strikes, lock outs, fires, acts of God or the public enemy, common carrier, severe inclement weather, and riots or interference by civil or military authorities. The Artist shall inform the City in writing and submit proof of force majeure within three (3) business days of the event or occurrence of force ma- jeure. The Artist's failure to inform and submit proof to the City of force majeure consti- tutes a waiver of this right by the Artist as a defense. The failures or delays to perform extend the period of performance until these exigencies have been removed. Section 12. Term of Agreement. This Agreement, excluding certain covenants that survive the earlier termination or expiration of this Agreement, ineluding, but not limited to, Sections 3, 5, 6, 7, 9, 10, 11, 17, and 18, will expire upon the ACC's final payment to the Artist as governed by Section 4 of this Agreement. Section 13. Survival of Provisions. Termination or expiration of this Alreerront for any reason does not release either party from any liabilities or obligations set forth in this Agreement that: 1) the parties have expressly agreed survive any such termination or expiration including, but not limited to, Sections 3, 5, 6, 7, 9, 10, 11, 17, and 18, 2) remain to be performed; or 3) by their nature would be intended to be applicable following any such termination or expiration. Section 14. Assignment and Transfer. This Agreement may not be, in whole or in part, assigned or transferred, directly or indirectly, by the Artist without the prior written consent of the Director and the Commissioner of the ACC. Subject to the foOegoing, this Agreement is binding upon the City and the Artist, their heirs, successors, and assigns. Section 15. Compliance with Laws. The Artist must comply with all applicable Federal, State, and local government laws, rules, regulations, and ordinances, which may be relevant or applicable to the Artist's performance under this Agreement. Section 16. Venue. Should any action be brought by either party to enforce the provisions of this Agreement, the parties agree that all actions brought to enforce compliance with this Agreement must be brought in Nueces County, Texas; where this Agreement was executed and will be performed. Section 17. Interpretation. The parties agree that this Agreement will be governed by and construed in accordance with the laws of the State of Texas. Section 18. Acknowledgment and Construction of Ambiguities. The parties ex- pressly agree that they have each independently read and understood this Agreement. By the Artist's execution of this Agreement, the Artist agrees to be bound by the terms, provisions, and conditions contained in this Agreement. The parties expressly agree that any ambiguities in this Agreement may not be construed against the drafter Section 19. Captions. The captions utilized in this Agreement are for convenience only and do not in any way limit or amplify the terms, provisions, or conditions of this Agreement. Section 20. Executory Agreement. This Agreement is not considered valid until signed by the Artist and an authorized signer or designee of the City. Section 21. Entire Agreement. No verbal agreements or conversations between any of°alicial, officer, employee, representative, or agent of the ACC or the City and the Artist, or the Artist's agent prior to the execution of this Agreement affect or modify any of the terms, provisions, liabilities, or obligations of the parties contained in this Agreement. Any verbal agreements or conversations prior to the execution of this Agreement are considered unofficial information and in no w0y binding on either party. This Agreement constitutes the entire agreement between the City, the ACC, and the Artist for the purpose stated. All other agreements, promises, representations, and understandings, oral or otherwise, weh reference to the subject matter of this Agreement, unless contained in this Agreement, are expressly revoked, as the parties intend to provide for a complete understanding within the provisions of this Agreement of the terms, provisions, conditions, and promises relating to the Artist's performance under this Agreement (EXECUTION PAGES FOLLOW) EXECUTED IN DUPLICATE, each of which will be considered an original, on this the Z day of V �^- 2007. AYTEST: Armando Chapa City Secretary CITY OF CORPUS CHRISTI e ge K. Noe City Manager or designee i APPROVED AS TO LEGA� FOR �I , 2007. f IF Eliza R. Hundley A sistaM City Attorney for the City Attorney STATE OF TEXAS s COUNTY OF NUECES § This instrument wa� %s acknowledged before me on ., � " -A du l,L t I 2007, I � __ by George K. Noe, City Manager of Corpus Christi, Texas, a Texas home -rule municipal corporation, or designee on behalf of the corporation. Notary Public, State of Texas �.... I PV i Connie Parks r 4 w My Commission Expires November 09, 200' MELANIE STJMMELL, AjtTFST ,- ' Signed: Date: STATE OF , ✓�� -����� � `�