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HomeMy WebLinkAboutC2008-043 - 2/25/2008 - NA ARTIST AGREEMENT BE~'WEEN THE ARTS AND CULTURAL COMMISSION . AND MELANIE STIMMELL' 4 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 Melanie Stimmell, an independent~artist ("Artist"), SS #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 payment of a public work of temporary art ("Artwork") to be loca#ed at, in, or near the selected site of the City's 200$ Festival of the Arts {"Project Premises"}, WHEREAS, the ACC desires to contract direc#ly with the Artist; ` WHEREAS, the ACC,and the Artist wish to set out the terms and conditions. under which the Artwork and rela#ed 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 ac- knowledged, agree as follows: . { 2008-043 02/25/08 Melanie Stimmell 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 Agreementfor 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, con#racts with the Artist to provide the following:, the Artist shall crea#e a street painting, approximately 12' x 15' in size, in chalk pastels ~ ' on asphalt paving of the City 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 participa#e in various types of media exposure reports and interviews #o be held in conjunction with the Festival. The Artist shall 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 Chris#i. ~B) 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 ACG. The warranty provisions contained in this section survive the expiration of #his 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 p.m. CST on Friday, March 28, 2008, Saturday, March 29, 2008, from 9:00 a.m. until 5:00 p.m. CST and on Sunday, March 30, 2008 from 9:00 a.m. 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, tie Workshops will each consist of a 30-45 minute slide or PowerPoint software-aided lecture and an ac#ual 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. until 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, 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, 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. Thp 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 Apst 1, 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-#rip air transportation for the Artist, with arrangemen#s acceptable #o the Artist and ACC and meeting the provisions of this Agreement, to the City for creation of the Arlwork and the Artist's related perfgrmance. (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. ho#el accommodations within the City for the Artist. The payment and securing of any additional accommodations beyondrthe 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 became due to any taxing authority, agency, or entity with respect to the creation, performance, and sale, 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 fnal 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 righ#s in and to the work except ownership arad possession. Notwithstanding the foregoing, the Artist grants to the City an irrevocable license to graphically reproduce, through pho#ography or otherwise, the image of the Artwork including, bu# not limi#ed 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 s#rips no# 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 #hat 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. ' Sec#ion 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 ~o, as the ("Indemnitor") shall fully indemnify, save, .and hold harmless the City and its officials, officers, appointees, employees, representatives, and agents tcoiiectively, "Indemnitees"} against any and all liability, damage, loss, claims, demands, and actions of any nature whafsoever on account of per-sonal 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 -ndemnitor 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, lndemnitor's design, creation, or completed fabrication of the Artwork and any act or omission M of the Indemnitor or of any employee, represents#ive, 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 lndemnitees or any of them individually. The Indemnitor covenants and agrees that, if the Indemnitee Is made a parfy to any litigation against the Indemnitor or in any litigation commenced by any party other than Indemnitor relating to this Agreement, Indemnitor shall, upon receipt of reasonable notice regarding commencement of litigation and at Indemnitor's own expense, investigate all such claims and demands, attend to their setflement or other ~ . disposition, defend Indemnitee in all actions based thereon with cqunsel 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 info #ftis Agreement except as is expressly , provided for under this Agreement. Section 9. Artist's Warranty. The Artist warrants and guarantees that, upon the ABC'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, artd 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, consistent 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 manmade devices. Both Artist and the Ci#y agree that destruction of the Artwork will eventually occur. If the City decides, at any time, to destroy the work or determines #hat the Artwork no longer has any value tq 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 #his Agreement is liable.for failures or delays in performance 'due #o 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 majeure. The Artist's failurb to inform and submit proof to the City of force majeure constitutes a waiver of this right by the Artist as a defense. The failures or delays #o 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 ACA's final payment to the Artist as governed 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, $, 10, 11, 17, and 18; 2} remain #o 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 F - or in part, assigned or transferred, directly or indirectly, by the Artist without the prior written; - cohsent 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 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 Agreemen# must be brought in Nueces County, ' Texas, where this Agreement was executed and wiN be performed. Section 17. Interpretation. The parties agree that this Agf"_eement 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. gy the Artist's execution of this Agreemen#, 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 Agreemen#. 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 to 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 agreemen#s, promises, representations, and understandings, oral or otherwise, with 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 pertormance under this Agreement. EXECUTED IN DUPLICATE, each of which will be considered an original, on this the . a~day of , 2Q08. ATTEST: CITY OF CORPUS CHRISTI Armando Chap eorge K. Noe City Secretary City Manager , Approved as to legal form: a'a 2' , 2008. ~~~ Lisa Aguilar, sistant City Attorney for the City Attorney MELANIE STIMMELL, AR~TI~ Signed: Date: r~ ~l T w STATE OF L~~/~~~~§ ~. L Y f COUNTY OF ~ ~) } Tf~is instrument was acknowledged before me on lVf r~ . ~~ 2008, by Melanie Stimmell, an independent artist. F e of No P blic y Pri t name: NICdLE J. HORTON /1~~~/~ / ~~~; },f ,/ ~ ~~~~~` ~/i~j~, G` ~`~"~' ~' Commission # 1553942 ~/// V /lj,(/\/ ~ I/U / /~/'~~%` ! i .~ •.µ, Notary Public - Callfarnla ~_ ~ , Los Angeles County Commission eX ices: My Comm. Expires Feb ~ 9, 2009 ~ p . ---°-~ F PAGE Page PACE 7 of NUMPAGES 7 F y CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ~ cv County of ~~ ~~i/ ~ ~y~ On ~/~ ~~ a~Obefore me, Dale ,~/ / personally appeared y "/~C~~'//~ (_ NICOLE 3• H ~ 553942 Commisstor+ # Carlio[nia • ~': ~ Notary Public - . "~. Los Angeles County ~.. My Comm. Expires feb ti 9.2 ~~ ~i~~~ d~ ~/C Here insert Name and Titie of a Officer ~~~~ who proved to me on the basis of atisfactory evidence to be the person(s) whose name{ is/ re subscribed to the wit ' instrument and ackn ed to me #hat h sh hey executed the same ' hisltheir authorized capacity(ies}, and that by hisl~their signature(s) on the instrument the persons}, or the entity upon behalf of which the person{s} acted, executed the ins#rument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and WITNE~ Place Notary Seal Ahpve Signatur OPTIONAL Though the information below is not required by law, !f may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of !h!s form to another document. Descrip#ion of Attached Docun Title or Type of Document: Document Date: ~ l~/~~ Signer(s) Other Than Named Above: Capacity(ies) Claimed fay Signer{s) Signer's Name: © Individual ^ Corporate Officer -Title(s): - ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing ~~~`~~ Number of Pages: Tap of lhurnb here Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ Genera! ^ Attorney in Pact ^ Trustee ^ Guardian or Conservator ^ Other: Signer is Representing: Top of thumb here ®2007 National Notary Assoaation • 9350 De Soto Ave-, P.O. 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