HomeMy WebLinkAboutC2008-042 - 2/22/2008 - NAARTIST AGREEMENT BETWEEN THE ARTS AND CULTURAL COMNIIS SION
AND JULIE KIRK
THE STATE OF TEXAS §
COUNTY OF NUECES §
KNOW ALL BY THESE PRESENTS
This agreement ("Agreement") is entered into by and between the City of Corpus Christi,
Texas, ahome-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 Julie Kirk, an independent artist ("Artist"), SS #XXX-XX-7337 (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 payment of a
public work of temporary art ("Artwork") to be located at, in, or near the selected site of the
City's 2008 Festival of the Arts ("Project Premises");
WHEREAS, the ACC desires to contract directly with the Artist;
WI~EREAS, the ACC and the Artist wish to set out the terms and conditions under which
the Artwork and related performance expenses of the Artist are to be purchased by the ACC.
NOW, THEREFORE, the City and the Artist, for and in consideration of the cove-Hants
and agreements set out in this Agreement, the sufficiency of which is hereby ao-
knowledged, agree as follows:
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 Agreement 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 steal! create a street painting, approximately 12' x 15' in size, in chalk pastels
on concrete pavement of the Art Center of Corpus Christi for the 2008 Corpus Christi
Festival of the Arts, to be held in Corpus Christi, Texas, from Friday, March 28, 2008, to
Sunday, March 30, 2008 {"Festival"); conduct two student educational workshops on
March 28, 2008, and conduct a technique workshop on March 29, 2008 ~"Workshops");
and participate in various types of media exposure reports and interviews to be held in
conjunction with the Festival. The Artist shalt also attend, as a featured guest, an artists'
reception to be held on Friday, March 28, 2008, from 5:30 p.m. until 730 p.m. CST, such
reception being held in con junction with the Festival, at the Art Center of Corpus Christi.
Zoos-o42
02/22/08 that the Artwork will be an original work of art designed solely by
irk will be created solely through the skills of the Artist and any
Julie Kirk
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 5:30 p.m. to 7:30 pn. CST on Friday, March 28, 2008, Saturday, March
29, 2008, from 9:00 until 5:00 p.m. CST and on Sunday, March 30, 2008 from 9:00 until
4:30 p.m. CST. 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, March 30, 2008, 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 28, 2008, and will consist of a morning session,
to be held from 9:30 a.m. until 11:00 a.m. CST, and an afternoon session, to be held from
11:30 p.m. un#il 1:00 p,m. CST.
Section 4. Compensation and Payment Schedule.
{A) The ACC will pay directly to the Artist, as consideration under this Agreement, a fixed
fee of $1,500 to be paid in two parts. Advance and partial compensation, in the amount
of $500, wil! be paid for the purchase of the Artwork and the related performance duties of
the Artist under this Agreement no later than March 23, 2008; however, if the Agreement
is executed by the Artist, received by the City before March 23, 2008, and the ACC has
funds available to payment, payment may be remitted to the Artist prior to March 23,
2008. 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 March 30, 2008, or at the conclusion of the completion of the
Artwork on March 30, 2008, whichever occurs later. The advance payment of
compensation to the Artist will not be deemed a waiver of any right of the City nor
acceptance, by the City, of defective performance by the Artist.
(B) 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.
Page 2 of 7
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 safe, to the City, of the Artwork.
Section 6. Public Information by Artist. As the funds provided to compensate the
Artist for performance and for this Artwork are public funds, the Artist shall acknowledge
the ACC's and City's role in funding the Artwork in all public presentations and written,
printed, or electronic publications of the Artwork following the Artist's execution of this
Agreement and completion of the Artwork. This obligation 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 States 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 purpases.
(i} 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.
Section 8. Indemnification.
To the extent allowed by Texas law and in consideration of the payment of
funds for the Artwork and the performance of the Artist, the Artist (herein after
referred to as the {"Indemnitor') shall fully indemnify, save, and hold harmless
the City and its offcials, officers, appointees, employees, representatives, and
agents {collectively, "Indemnitees"} against any and all liability, damage, loss,
Page 3 of 7
claims, demands, and actions of any nature whatsoever on account of per sonat
injury (including, without 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 Indemnitor'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 injury, 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 thelndemnitee is made a party to any
litigation against the Indemnitor or in any litigation commenced by any party
other than 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 such claims and demands, attend to
their settlement or other dr'spo-sition, defend Indemnitee 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, demand, or action. No liability shall attach to the
City by virtue of entering into this Agreement except as is expressly provided for
under this Agreement.
Section 9. 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 Artwork is free from any and all
claims, liens, and charges of and by any person or entity including, but not limited to, ail
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 detennine 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
Page 4 of 7
be provided under this Agreement is temporary in nature and is highly susceptible to
destruction by the natural elements and by manmade devices. Both Artist and the City
agree that destruction of the Artwork will 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 title to the Artwork, may so destroy without any recourse by the
Artist.
Section 11. Force Majeure. 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 cansti-
totes awaiver 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, including, 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 govemed by Section 4 of this Agreement.
Section 13. Survival of Provisions. Termination or expiration of this Agreement 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 i 8;
2j 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 foregoing, this
Agreement is binding upon the City and the Artist, their heirs, successors, and assigns.
Section 15. Compliance with haws. 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.
Page 5 of 7
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 Agreemen#. 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
official, 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 #o the execution of this Agreement are
considered unofficial information and in no way 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, with reference to the subject matter of this Agreement, unless
contained in this Agreemen#, 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.
EXECUTED IN DUPLICATE, each of which will be considered an original, on this
the 2~- day of ~w ~ , 2008.
ATTEST: CI OF CORPUS CHRISTI
Armando Chapa eorge K. Noe
City Secretary City Manager
Approved as to legal form: ~' • 2~" , 2008.
~~,."
Lisa Aguilar, istant City Attorney
for the City Attorney
JULIE KIRK, ARTIST
Page 6 of 7
Signed•
Date: - D
~~~
STATE OF §
COUNTY OF -~~ ~
This instrument was acknowledged before me on , 2008, by
Julie Kirk, an independent artist.
igna ure o o ary u is
Printed name:
Commission expires:
Page 7 of 7
California All-Purpose Acknowledgment
State of California
County of Orange
On 02/19/08 before me, Darlene M. Elwell ,notary public, personally
appeared *** ulie Kirk*"* ,who
proved to me on the basis of satisfactory evidence to be the personya'j whose name(~6~
subscribed to the within instrument and acknowledged to me tha she executed the same
i 'the #aei~ authorized capacity, and that by'-~s~~ signatures on the instrument
the person(, or the entity upon behalf of which the person(~j acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
DIIRLENE M. ELWECI
j~! f ' p yy,~ ! ~ Commlglon N 1 75609a
Signature 1~ ~W~fC I V~ ~y (Seal} ~ r,w,pryp,m,w_~a,,,o,n,a €
Drarp~ County
MltCall'~n EipilwJul E. 201 }
Optional
Though the information below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:. Artist & Culture Com Agreement
Document Date: Fe ru 19 2008 # of Pages: 7
Signer(s) Other Than Named Above: NIA