HomeMy WebLinkAboutC2009-120 - 3/20/2009 - NAARTIST AGREEMENT BETWEEN
THE ARTS AND CULTURAL COMMISSION
AND JIMMY PENA
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 Jimmy Pena, 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 art ("Artwork") to be located at, in, or near the selected site of the
City's 2009 Festival of the Arts ("Project Premises");
WHEREAS, 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 Artist are to be purchased
by the ACC.
NOW, 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:
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
for the City: the Artist demonstration is to design two drawings of approximate size 48" x
24", for the permanent collection of the City. Work will demonstrate the enhancing of
wood grain with images with charcoal. The demonstration shall occur on premises of the
Art Center of Corpus Christi for the 2009 Corpus Christi Festival of the Arts, to be held in
Corpus Christi, Texas, from Friday, March 27, 2009, to Sunday, March 29, 2009
("Festival"). This demonstration will occur on March 28 and March 29, and will utilize
2009-120 a used through history to be better observers. The work
03/20/09
Pena, Jimmy
performed by the Artist at the Festival will be the basis for the permanent drawing. The
Artist will complete and deliver the final drawing to the Art Center director on behalf of the
City no later than April 15, 2009.
(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
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
on Saturday, March 29, 2009, from 10:00 until 5:00 p.m. CST and on Sunday, March 29,
2008 from 10:00 until 5:00 p.m. CST. The Artist shall be present for the general public to
view the Artist and the artwork in progress. The Artist will attend the opening of the
Festival on March 27~' from 5:30 to 8:00.
Section 4. Compensation and Payment Schedule.
(A) The ACC will pay directly to the Artist, as consideration under this Agreement, a fixed
fee of $2,000. 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, 2009; however, if the Agreement is executed by the
Artist, received by the City before March 23, 2009, and the ACC has funds available to
payment, payment may be remitted to the Artist prior to March 23, 2009. The remainder
portion, in the amount of $1,500, 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, 2009, or at the conclusion of the completion of the Artwork and/or no
later than April 25, 2009. 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.
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.
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 jointly and
severally 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 alt 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 purposes.
(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 ("lndemnitor') shall fully
indemnify, save, and hold harmless the City and its officials, oftrcers,
appointees, employees, representatives, and agents (collectively,
"Indemnitees") against any and all liability, damage, loss, claims,
demands, and actions of any nature whatsoever on account of per-
sona/ 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 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 /ndemnitees or any of them individually. The /n-
demnitorcovenants 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 than Indemnitor relating to this Agreement, Indem-
nitorshall, upon receipt of reasonable notice regarding commence-
ment of litigation and at /ndemnitor's own expense, investigate all
such claims and demands, attend to their settlement or other dispo-
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, 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. 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 consti-
tutes 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 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 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' 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
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 noway 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 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.
EXECUTEQ„IN DUPLIC TE, each of which will be considered an original, on
the day of , 2009.
ATT T:
Armando Chapa
City Secretary
CITY OF CORPUS CHRISTI
~~
` g .Escobar
ity Manager
Approved as to legal form: ~~ l9
~~/H
Lisa Aguil ssistant City Attorney
for the Cit ttomey
2009.
JIMMY PENA, ARTIST
Signed: ,ti C ~ ~
Date: ~~/ g -0 °~
STATE OF ~X~]~ §
COUNTY OF u~ §
This instrument was acknowledged before me on ~,/l'/c_.~/iJ / 9 , 2009, by
Jimmy Pena, an independent artist.
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~~ JEANNIE HOLLAND
Notary public, Stata
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Commission expires: _ //- ~ O 9