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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 Panted name w 4 ~' ' `' ~ Nota~r PU~~I~, Stag o~ ~@x$$ w ~ ; ~ ;~~,r, : tgti` My ~~1rr115S~~11 ~x~~r~S r~l~-f ill~~~ omm~s~on expires: