HomeMy WebLinkAboutC2008-097 - 3/26/2008 - NAARTtT AEEMEIVT BETVIIE~N THE ARTS ANA CLtLTURAL ~I~MISt~N
ANA DE~~RAH DALES
THE STATE OF TEXAS §
COUNTY OF NUECES ~
~HOVI~ ALL ~Y THESE PREENT
This agreement ~"Agreemeot~~~ is entered into by and between the City of orp~
Christi, Texas, a borne-rule municipal corporation ~"C~ty"~, acting through its duly
authorized Director of Parks and Recreation ~~~~recto~'} ar~d its duly appointed Arts and
Cultural Commission ~"ACCn~, and Deborah Males, independent artist ~~Art~s~'}, each
Artist with XXX~iCC-8~7~ numbers intentionally deleted; incorporated by
refrence as if fully set out herein; retained on file~~
vVHEREA, the City has allocated funds to t#~e ACC far the selection and payrnerrt
of a public work of art ~"Artworks} to be Iodated at, in, or rear the selected site of the
City's aDB Festival of the Arts ~"Pro~et Premises'~~;
~IIIHEREA, the ACC desires to contract directly with the Ar#it;
~VHEREA, the ACC and the Artist wish to set out the terms ar~d conditions under
which the Artwork end related performance expenses of the Artist ere to be purchased
by the ACC,
N11~, THE~~FO~E, the City and the Artist, for and in considers#ion of the coven
Hants and agreements set out in Phis Agreement, the sufficiency of which is hereby ac~
knowledged, agree as follows:
section ~. ~~ear~b~e Language. The preamble language included above this initial
numerated section is incorporated into this Agreement by reference and made a part ofi
this Agreement for all intents end purposes
eo~on ~. Contrac# A~min~trator. The ACC's contract administrator far this Agree-
ment lathe City's Director, tirr the review and approval of the ACC.
section ~. Scope of Artwork and Perforn~a~nce~
~A~ The ACC, through this Agreement, contracts with the Artist to provide the follov~ring
for the City: the Artist dernontratian is tv design a painting of approximate sire ~ 8~ x
~~~f for the permanent collection of the City depicting the area of the Art Center. The
deorontration shall occur on premises of the Art Center of Cous Christi for the gg8
Corpus Christi Festival of the Arts, to be held in Corpus Christi, Texas from Friday March
~, ~Dg~, to Sunday, March ~, ~40g ~~Fea~ivat~}. This demanstratian will occur on
Marc#~ ~ and March fig. The work performed by the Artist t the Festival will be the
basis for the permanent painting. The Artist will complete and deliver the final painting to
the Ad Cantor director on behalf of the City nv later than April 1 , ~D~B, with frame
provided by Artist. The frame i not included ire the ~~~ by 4~ sire.
~p~~~~~ ~ that the Artwork will be an origins! work of art designed solely by
~31~G108 vrk will be created solely through the skills of the Artist and any
Deborah N~~e~
apprentices or assistants working under the Artist's direct supervision and control. The
advance design of the Artwork to be displayed has been corr~municated by the Artist to
the A~, and the purchase of this Artwork has been reviewed and approved by the pity's
Act. The warranty provisions contained in this section survive the expiration of this
Agrer~enti
~} The Artist sha!! be present to create the Artwork and perform related responsibilities
on Saturday, March ~9, aa~, from g:gg anti! b:Dg p.m. SST and on Sunday, March 30,
gg8 fram g:~0 unti11:0a p.m. SST. The Artist shall be present far the general public to
view the Artist and the artuvork in progress. The Artist wi!! attend the opening of the
i~etival.
sec~vn ~. com~ensaan and Payment schedule.
~A~ The Arc wi!! pay directly to the Artist, as consideratian under this Agreement, a fixed
fee of x,400. Advance end partial compensation, in the amount of ~Og, will be paid far
the purchase of the Artwork and the related per#orrnance duties of the Artist under this
Agreement ra later than lillarch ~3, X045; hovrrever, if the Agreerent is executed by the
Artist, received by the City before March ~3, 045y and the A~ has funds available to
payment, payment may be remi#ted to the Artist prior to March , X555. The remainder
portion, in tha amount of ~,SDO, for the purchase of the Artwork and the related
performance duties of the Artist under this Agreement i to be paid ono later than p.rr~.
SST on March 5, ~SDS, or at the conclusion of the completion of the Artwork no later
fan April 15, X008. The advance payment of compensation to the Artist will snot be
deemed a waiver of any right of the pity nor acceptance, by the pity, of defective
per~orrnance by the Artist.
Seodvn ~ Taxes. The Artist i responsible for the payment of any and a!I taxes that
may bec~e due to any taxing authority, agency, or entity with respect to the creation,
perforrance, and sale, to the pity, of the Artwork,
seotion ~. Public tnfornnafion ~~ ArStf As the funds provided to compensate the
Artist for performance and far this Artwork are public funds, the Artist shall jointly and
severally acknowledge the A's and City's role in funding the Artwork in a!! public
presentations and written, printed, or electronic publications of the Artwork following the
Arti#' execution of this Agreement and corrrpletion of the Artwork. This obligation of the
Artist survives the expiration of this Agree€xrent.
secdou ~. Tide; c~pyrlght and license to Repradu~ce.
~A~ Ti#ie to the Artwork passes to the pity upon final remittance by the A of payment
to the Artist.
~B} The Artist each retain a#I rights under the opyr~ght Act of 145,1 ~ l~r~ited States
code, Sections 101 et seq., a if may be amended, and all other rights in and to the
work except ownership and possession. Notwithstanding the foregoing, the Artist grants
to the pity 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 ABC and the city and the completed
Artwark image, and to authorize third parties to graphically reproduce, through
photography r otherwise, any and all of the sane as are desired by the pity far
municipal purposes, e.g., education, public inforr~nation, and similar public purposes.
~i} For the purpases of this Agreer~ent, the following are among thane deemed to
be reproductions for municipal purposes: brochures and pamphlets pertaining to
the A or the pity; reproduction in exhibition or Festival catalogues, books,
elides, photographs, postcards, palters, and calendars; reproduction in art
magazines, and art and news sections of newspapers slides and flrn strips r-at
intended for mass audience; and television broadcasts from stations operated
far educational ar news purposes ar on programs for educational purposes train
ail stations,
~ii~ an 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 prlirnina~ studies and models
may not be identified as or represented to be the finished Artwork.
~iii~ ~`h rights granted under this section survive the expiration of this Agreement,
eo~~n S, I~ndemnlcat~on.
To the extent allowed by Texas !aw and in consideration of the
paymeni~ of funds for the Artwork and the performance of the Artisf,
each Artist {herein after referred to as fhe ("lndemn~tor") steal! fully
indemnify, save, and hold harmless the City and i#s officials, officers,
appointees, employees, representatives, and agents (collectively,
"Indemnitees") against any and arl liability, damage, foss, claims,
demands, and ac#ions of any nature whatsoever 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 Indemnitor or the lndemnitor's
employees, represen#a#ives, 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 Indemni~or or of any employee, repre-
senta#ive, or agent of fire lndemnitor pursuan# 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 ~s caused by the sole, contributory, or concurrent
negligence of the lndemnitees or any of them individually. The In-
demnitorcovenants and agrees that, if the Indemnitee is made a party
to any litigation against the lndemnitor or in any litigation commenced
by any party other than Indemnifor relating to this Agreement, lndem-
nitvrshall, upon receipt of reasonable notice regarding commence-
ment oflitigation and a# Indemnitor's own expense, investigate aN
such claims and demands, attend to their settlement or other d~spw
sition, defend Indemnitee in all ac#ions based thereon with courtse!
satisfactory to the Indemnftee, and pay alI charges of at#orneys and a!t
other costs and expenses of any kind arising from any said Lability,
damage, loss, claim, demand, or action. No lability shall attach to the
City by virtue of entering into this Asreement except as is expressly
provided for under this AgreemeR#
Sec~on ~. Artist's Warranty.
The Artist vr-arrant and guarantees that: upon the A's final remittance of payment to
the Artist, the pity acquires goad 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, all ennployee and suppliers of the Artist
Section ~~, Artwork coitec~on l~anagemen#.
~A} The i#y reserves the right to manage its collection of art, including the Artuvork, con-
sistent with all applicable laws, the pity's charter, ordinances, and municipal policies.
The pity, through this Agreement, is purchasing a work of public art, and the pity, acting
#hrough the ABC and its appointed ornmisioner, 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 ar an which it is totaled. if the City decides, at
any time, to destroy the work or determines that the Artwork no longer has any value to
the pity, the pity, holding #itle #o the Artwork, may o destroy without any recourse by the
Artist,
Sec~an 1 ~ f Force Illla~aure. No parley to this Agreement is liable for failures or delays
in perfarmace due to any cause beyond their control including, but not limited to, any
failures or delays in perfan~ance caused by strikes, lock outs, Tres, acts of hod or tMe
public enemy, common carrier, severe inclement weather, and riots ar interference by
civil or rniii#ary author~te. The Artist shall inform the pity in writing and submit proof of
force ma~eure wi#hin three ~~ business days of the event or occurrence of force ma-
jeure. The Artist's failure to inform and submit proofto the pity of force ~ajeure consti-
tutes a v~raiver of this right by the Artist as a defense. The failures or delays to perform
extend the period of perfornnance until these exigencies have been removed.
Section ~12f fiernn of I~greemr~nt. This Agreemen#, exciud#ng certain covenants that
survive the earlier termination or expiration of this Agreement, including, but not limited
to, Sections , ~, ~, ~} g,1 ~, ~ 1, ~ 1, and 1 ~, will expire upon the ABC's final payment to
the Artist s governed by Section 4 of this Agreement,
Section ~3. Survival of ~~oviions. 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: ~ ~ the parties have expressly agreed survive any such termination or
expiration including, but not limited to, Sections , ~, l} 9, t 0, t ~ , t 7, ar~d 1 ~;
~~ remain to be performed; ar ~~ by their nature v~rould be intended to be applicable
following any such termination or expiration.
Section ~~4. Assignment and Transfer. This Agreement may not be, in whole ar 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 i binding upon the City and the Artist, their heirs, successors, end assigns.
Section '~ ~. compliance with Laws. The Artist rmust comply with all applicable
Federal, Mete, and local government laws, rule, regulations, and ordinances, which
may be relevant or applicable to the Artist' performance under this Agreement,
Section 1. Venue. Should any action be brought by either party to enforce the
provisions of this Agreement, the porkies agree that ali actions brought to enforce
compliance with this Agreement must be brought in Nueces County, Texas, where this
Agreement was executed and will be performed,
Scgon 1?, lnter~reta~on. The parties agree that this Agreement will be governed by
and construed in accordance with the laws of the State of Texas.
Section ~~. Acknowledgrnentend constxuc~on of Ambiguities, The parties ex-
preslyagree 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 #hi Agreemen#. The parties expressly agree
that any ambiguities in this Agreerne~nt may not be construed against the drafter.
ecgon ~lg. captions. T#~e captions utilized in this Agreement are far convenience
only and do not in any way iirnit or amplify the teens, previsions, or conditions of this
Agreement.
Section ~4. Executory Agreement. This Agreement i not considered valid anti!
signed by the Artist and an authorized signer or designee of the City.
Section ~~. Enure 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, liabifitie, 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 noway binding on either party. This Agreement
constitutes the entire agreefnent between the City, the ACC, and the Artist for the
purpase stated. All other agreements, promises, representations, and understandings,
oral or otherwise, with reference t~ the subje matter of #his Agreement, unless
contained in this Agreement, are expressly revoked, as the parties intend to provide far
ca~mplete understanding whin the provisions of this Agreement of the terms, provisions,
conditions, end promises relating to the Artist's performance under this Agreement,
~~uT lh~ DuPL~~#T~, a h of which will be considered an original, on this
the day of , ~~g~.
ATTEST: CITY„pF CORPUS CHRISTI
Armando papa Barge ~C, Noe
City secretary pity llJlanager
cued s to l ai fomn: Y ~~ ~` , ~gDS,
APp
l~isa Aquila Assistant pity Attorney
for the City Attorney
DEBORAH MALES, ARTIST
Signed:
i • +
bete.
wiling Address ~~ Del filar, carpus Christi, Texas X84
STATE OF ~~i4-S §
COUNTY OF ~/C~,~C~ ~ §
This instrument was acknowledged before me on /~ ~ 2008, by
Deborah l~llales~ an independent artist,
reo o u~c
'''~~~~~~#'' JEANN~~ H~~tAND
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omm~s~on expires: