HomeMy WebLinkAboutC2009-525 - 12/23/2009 - NAPage 1 of 8
AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI
AND LYNDA JONES
This agreement ("Agreement") is entered into by and between the City of Corpus Christi, Texas, a
home-rule municipal corporation ("City"), acting through its duly authorized City Manager or the City
Manager's designee ("City Manager") and Lynda Jones of Corpus Christi, Texas
("Photographer/Author").
WHEREAS, the City has allocated funds for the development and purchase of handouts which depicts
photographs and historical summary of City-owned art, in both hard copy and electronic copy for
reproduction by the City at no additional cost to the City; ("Project")
WHEREAS, Photographer/Author has completed the Project and the City and Photographer/Author
wish to set out the terms and conditions of payment, and rights of the City relative to the Project at no
additional cost to the City;
NOW, THEREFORE, the City and Photographer/Author, for and in consideration of the covenants and
agreements set out in this Agreement, the sufficiency of which is hereby acknowledged, 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 City's contract administrator for this Agreement is the City's
Director of Parks and Recreation ("Director").
Section 3. Project. The City, through this Agreement, contracts with Photographer/Author to receive
professional services in designing, constructing, finishing, and delivering to the City 24 single sided
pages of handouts which depicts photographs and historical summary of major City-owned art through
2009, in both a hard copy and electronic copy for use by the City at no additional cost to the City;
("Project"). This historical summary includes information provided by available artists. The electronic
copy shall be provided in the following format: InDesign.
Section 4. Compensation and Payment Schedule.
A. The City will pay directly to Photographer/Author a fixed fee of Four thousand, nine hundred and
ninety dollars ($4,990.00) which the parties agree is full compensation for all services performed,
all products to be furnished by Photographer/Author under this Agreement, and full compensation
for future reproductions by the City. Any reproductions of the Project shall be at the sole expense
of the City, or paid with private donations gifted to the City for such purpose.
B. The payment of compensation to Photographer/Author, at any time during the term of this
Agreement, will not be deemed a waiver of any right of the City or acceptance, by the City, of
defective performance by Photographer/Author.
C. The fee will be paid within thirty (30) days of receipt by the Park and Recreation acting
Director of the City of all services and products required under this Agreement.
Section 5. Completion of Project. The Project must be fully completed and delivered to the City within
30 days of the signing of this Agreement by Photographer/Author.
2009-525
12/23/09
~_,,Tones, Lynda
Page 2 of 8
A. The City is atax-exempt organization and no State of Texas or local sales taxes are due upon the
Project by the City. The City shall supply Photographer/Author with a copy of the Texas Sales
Tax Exemption Certificate ("Texas Certificate"). The City does not warrant that the Texas
Certificate will be acceptable in any other jurisdiction outside the boundaries of Texas for tax-
exempt purchases of materials or supplies to be used for the Project.
B. Photographer/Author 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 services provided by
Photographer/Author or with the Project that is the subject of this Agreement. This provision
survives the expiration or earlier termination of this Agreement.
C. Photographer/Author shall pay, before delinquency: all taxes, levies, and assessments arising
from Photographer/Author's activities and undertakings pursuant to this Agreement; taxes levied
on Photographer/Author's art studio and any improvements on the studio property or other place
used for the fabrication and completion of the Project; taxes levied on Photographer/Author's
equipment, tools, and machinery; and taxes levied on Photographer/Author's interest in this
Agreement.
Section 7. Photographer/Author's Expenses. Photographer/Author shall be responsible for all
expenses associated with the Project, including but not limited to the payments of all mailings for
submission to the City, including any required insurance certificates; shipping costs of the Project to the
City; all costs of travel by Photographer/Author; all labor costs for Photographer/Author's employees; and
all other costs, unless specifically excluded in this Agreement, that are necessary for the proper
performance of the work, services, and obligations required by Photographer/Author under this
Agreement.
Section 8. Independent Contractor; Lack of Contractual Authority.
A. Photographer/Author performs all work and services under this Agreement as an independent
contractor and not as an agent, representative, or employee of the City.
B. This Agreement does not establish Photographer/Author as the agent or legal representative of
the City for any purpose whatsoever, and Photographer/Author is not granted any express or
implied right or authority to assume or create any obligation or responsibility on behalf of, or in the
name of, the City or to bind the City in any manner whatsoever.
Section 9. Title; Copyright and License to Reproduce.
A. Title and rights to the Project will pass to the City upon remittance of the final payment, however
transfer of the title to the city shall not prevent Photographer/Author from speaking about her work
and the development of the project in her individual capacity.
B. The parties acknowledge that the City has a right to graphically reproduce the individual artwork
as well as the entire compilation comprising Project.
Notwithstanding the foregoing, Photographer/Author grants to the City an irrevocable license to use,
sub- license, sell, distribute, display, perform, create derivative works, and graphically reproduce,
through reprinting, photography or otherwise, the Project or any portions thereof; 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 any purpose deemed appropriate by the City Manager. The rights granted
by this subsection survive the termination of this Agreement.
C. Should City decide in its sole discretion to reproduce the Project for sale, the City agrees that
proceeds from the sale shall go to the PALS account for the benefit of the Arts and Cultural
Commission purposes.
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D. When City arranges reprints of the project for general public distribution or sale, the City shall first
contact the Photographer/Author for consultation regarding quality of the reprinting. City agrees
to utilize local printer to the extent feasible under applicable purchasing laws, and agrees to make
the proofs available for review to Photographer/Author.
E. Upon City's determination of website capacity, City may make the Project available on the City's
website.
F. The City plans to print the Project in booklet form, once funding is available and can be identified.
G. When City decides in its discretion to make additions or deletions to the Project, the City agrees
to provide Photographer/Artist with first right to make the additions or deletions for the price being
offered by the City, subject to Photographer Artist/ ability to complete the work within the timeline
identified by the City.
Section 10. Assignment of Copyrights /Copyright Release/ Waiver. All writing, materials, graphics,
names, designs, illustrations, software, computer codes, ideas, compositions of matter, inventions and
other works of Photographer/Author which are created while performing the Project for City shall belong
to City. Photographer/Author hereby assigns, transfers, waives and forever releases to City all rights
which Photographer/Author may have to copyright and to other statutory and common law protection of
the Project. The right to use, license, sell, reproduce, distribute, display, perform, copyright and legally
protect the Project shall be the sole and exclusive property of City. Photographer/Author also hereby
transfers, assigns, waives and forever releases to City the rights to Project and all derivative works of
the Project.
PHOTOGRAPHER/AUTHOR agrees that any work prepared for CITY, including Project, that is eligible
for copyright protection in the United States or elsewhere shall be a work made for hire. If any such work
is deemed for any reason not to be a work made for hire, PHOTOGRAPHER/AUTHOR hereby assigns
all right, title, and interest in the copyright in such work, including that in derivative work(s), and all
extensions and renewals thereof, to CITY and agrees to provide assistance as requested by CITY in the
establishment, preservation, and enforcement of its copyright in such work, such assistance to be
provided at CITY's expense and with additional compensation to PHOTOGRAPHER/AUTHOR.
PHOTOGRAPHER/AUTHOR agrees to waive all rights relating to the work developed or produced
including, without limitation, on use or subsequent modifications, except as identified in Section 9D and
9G above..
For the avoidance of doubt, the Parties agree that Photographer/Author's sole rights herein are for
identification of authorship purposes. Photographer/Author may display the Project and services
performed for City ,with the authorship noted thereon.
Photographer/Author, hereby releases City and City's assigns, licensees and successors from any
claims that may arise regarding the use of Project or work based on services contracted, including any
claims of defamation, invasion of privacy, or infringement of moral rights, rights of publicity or copyright.
City is permitted, although not obligated, to include the name of Photographer/Author as a credit in
connection with the work.
All rights are reserved to the City in regard to the Project. No part of the Project may be reproduced
without prior permission of the City of Corpus Christi.
City is not obligated to utilize any of the rights granted in this Agreement.
Section 11. Risk of Loss. Photographer/Author shall take all measures reasonably necessary to
protect the Project from loss or damage until Photographer/Author has completed delivery to the City of
all materials that constitute and form the Project is transferred to the City.
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Section 12. Indemnification. Photographer/Author ("Indemnitor") shall fully indemnify, save, and hold
harmless the City and its officers, employees, and agents (collectively, "Indemnitees") against any and all
liability, damage, loss, claims, demands, and actions of any nature whatsoever on account of personal
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, fabrication, installation, repair, restoration,
or removal of the Project and any act or omission of the Indemnitor or of any agent or employee of
Indemnitor pursuant to performance under the terms of this Agreement. The terms of this
indemnification are effective regardless of whether the injury, damage, or loss is caused by the sole,
contributory, or concurrent negligence of the Indemnitees or any of them individually. The Indemnitor
covenants 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, Indemnitor shall,
upon receipt of reasonable notice regarding commencement of litigation and at his/her own expense,
investigate all these claims and demands, attend to their settlement or other disposition, 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 attaches to the City by virtue of entering into this Agreement except
as is expressly provided for under this Agreement. This provision survives the expiration or earlier
termination of this Agreement.
Section 13. Photographer/Author's Warranties.
A. Warranty Against Defects. Photographer/Author represents and warrants that the Project is
designed to last for seven (7) years and guarantees the Project against faulty material and
workmanship, including inherent vice. The term "inherent vice" means a quality within the
material(s) that compromise(s) the Project and, either alone or in combination, results in the
tendency of the Project to destroy itself and its image. In the event of a claim by the City for faulty
material or workmanship, Photographer/Author shall, at the City's option, remedy or pay for any
loss or damage resulting from faulty material or workmanship that occurs or appears after the
date the City issues a Notice of Final Acceptance of the Project. The City shall give written notice
with reasonable promptness to Photographer/Author regarding observed defects in the Project
that occur or appear. Nothing contained in this Agreement or any action whatsoever by the City
constitutes an acceptance of work not done in accordance with the provisions of this Agreement
or relieves Photographer/Author of liability or responsibility for faulty material or workmanship.
This provision survives the expiration of this Agreement.
B. Warranty of Title. Photographer/Author represents, warrants and guarantees that, upon the
City's final remittance of payment to Photographer/Author, the City acquires good title to the
Project and that the Project 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 Photographer/Author.
This provision survives the expiration of this Agreement.
Section 14. Collection Management.
A. The City reserves the right to manage its collection of art, including the Project, consistent with
all applicable laws, the City's Charter, ordinances, and municipal policies. The City, through this
Agreement, is commissioning and purchasing the Project, and the City shall determine the
Project's placement. This reservation of rights survives the expiration of this Agreement.
Section 15. Force Majeure. No party to this Agreement will be 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. Photographer/Author 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. Photographer/Author's failure to inform and submit proof to the City of
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force majeure constitutes a waiver of this right as a defense. The failures or delays to perform extend
the period of performance until these exigencies have been removed.
Section 16. Survival of Terms. 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 the termination or expiration including, but not limited to, Sections 6B, 9, 12, 13,
14, and 22(B); 2) remain to be performed; or 3) by their nature would be intended to be applicable
following the termination or expiration.
Section 17. Assignment and Transfer. This Agreement may not be, in whole or in part, assigned or
transferred, directly or indirectly, by Photographer/Author without the prior written consent of the City
Manager. Subject to the foregoing, this Agreement is binding upon the City and Photographer/Author,
their successors, and assigns.
Section 18. Non-Discrimination. Photographer/Author shall not discriminate or permit discrimination
against any person or group of persons, as to employment or in the performance of services under this
Agreement, on the grounds of race, religion, national origin, sex, physical or mental disability, or age, or
in any manner prohibited by the laws of the United States or the State of Texas. The City retains the
right to take the action as the United States may direct to enforce this non-discrimination covenant.
Section 19. Compliance with Laws.
A. Photographer/Author must comply with all applicable Federal, State, and local government laws,
rules, regulations, and ordinances that may be relevant or applicable to Photographer/Author's
performance under this Agreement.
B. This Agreement is also subject to applicable provisions of the City's Charter.
Section 20. Venue. 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 21. Interpretation. This Agreement will be governed by and construed in accordance with the
laws of the State of Texas.
Section 22. Notice.
A. All notices, demands, requests, or replies provided for or permitted, under this Agreement by
either party must be in writing and must be delivered by one of the following methods: (1) by
personal delivery; (2) by deposit with the United States Postal Service as certified or registered
mail, return receipt requested, postage prepaid; (3) by prepaid telegram; (4) by deposit with an
overnight express delivery service, for which service has been prepaid; (5) by fax transmission; or
(6) a-mail.
B. Notice deposited with the United States Postal Service in the manner described above shall be
deemed effective two (2) business days after deposit with the United States Postal Service.
Notice by telegram or overnight express delivery service in the manner described above will be
deemed effective one (1) business day after transmission to the telegraph company or overnight
express carrier. Notice by fax ore-mail will be deemed effective upon transmission with proof of
delivery to the receiving party. All communications must only be made to the following:
IF TO CITY:
City of Corpus Christi
Attn: Director of Parks and Recreation
1201 Leopard; 3rd FI
P.O. Box 9277
Corpus Christi, Texas 78469-9277
IF TO PHOTOGRAPHER/AUTHOR:
Lynda Jones
602 Vaky
Corpus Christi, TX 78404
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(361) 880-3461
(361) 880-3864 Fax
C. Either party may change the address to which notice is sent by using a method set out above.
Photographer/Author shall notify City of an address change within ten (10) days after the address
is changed.
Section 23. Modification or Amendment. No modification or amendment of any of the terms of this
Agreement will be effective unless the modification or amendment is in writing and signed by an
authorized representative of each of the parties to this Agreement.
Section 24. Waiver.
A. The failure of either party to complain of any act or omission on the part of the other party, no
matter how long the same may continue, will not be deemed a waiver by said party of any of its
rights under this Agreement.
B. No waiver of any covenant or condition or of the breach of any covenant or condition of this
Agreement by either party at any time, express or implied, will be taken to constitute a waiver of
any subsequent breach of the covenant or condition nor will justify or authorize the
nonobservance on any other occasion of the same or any other covenant or condition of this
Agreement.
C. If any action by Photographer/Author requires the consent or approval of the City on one
occasion, any consent or approval given on said occasion will not be deemed a consent or
approval of the same action or any other action on any other occasion.
D. Any waiver or indulgence of Photographer/Author's default of any provision of this Agreement will
not be considered an estoppel against the City. It is expressly understood that, if at any time
Photographer/Author is in default in any of its conditions or covenants of this Agreement, the
failure on the part of the City to promptly avail itself of said rights and remedies that the City may
have will not be considered a waiver on the part of the City, but the City may at any time avail
itself of said rights or remedies allowed under this Agreement, in law, or in equity.
E. Any waiver or indulgence of the City's default of any provision of the Agreement will not be
considered an estoppel against the Photographer/Author. It is expressly understood that, if at
any time the City is in default in any of its conditions or covenants of this Agreement, the failure
on the part of the Photographer/Author to promptly avail itself of said rights and remedies that the
Photographer/Author may have will not be considered a waiver on the part of the
Photographer/Author, but the Photographer/Author may at any time avail itself of said rights or
remedies allowed under this Agreement, in law, or in equity.
Section 25. Severability.
A. If, for any reason, any section, paragraph, subdivision, clause, provision, phrase, or word of this
Agreement or the application hereof to any person or circumstance is, to any extent, held illegal,
invalid, or unenforceable under present or future law or by a final judgment of a court of
competent jurisdiction, then the remainder of this Agreement, or the application of said term or
provision to persons or circumstances other than those as to which it is held illegal, invalid, or
unenforceable, will not be affected thereby, for it is the definite intent of the parties to this
Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word hereof
be given full force and effect for its purpose.
B. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present
or future law effective during the term of this Agreement, in lieu of each illegal, invalid, or
unenforceable clause or provision, a clause or provision, as similar in terms to the illegal, invalid,
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or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will
be added to this Agreement automatically.
Section 26. Acknowledgment and Construction of Ambiguities. The parties expressly agree that
they have each independently read and understood this Agreement. By Photographer/Author's
execution of this Agreement, Photographer/Author agrees to be bound by the terms, covenants, and
conditions contained in this Agreement. By agreement of the parties, any ambiguities in this Agreement
may not be construed against the drafter.
Section 27. Captions. The captions utilized in this Agreement are for convenience only and do not in
any way limit or amplify the terms or provisions of this Agreement.
Section 28. Disclosure of Interests. Photographer/Author further covenants and agrees, in
compliance with the City Code of Ordinances, Section 2-349, as amended, to complete the Disclosure of
Interest form that is attached to this Agreement as Exhibit A and that is incorporated by reference into
this Agreement.
Section 29.Executory Agreement. This Agreement is not considered valid until signed by authorized
representatives of each of the parties
Section 30. Entire Agreement. No verbal agreements or conversations between any officer,
employee, or agent of the City and Photographer/Author or Photographer/Author's agent prior to the
execution of this Agreement affect or modify any of the terms or obligations contained in this Agreement.
Any verbal agreements or conversations prior to execution of this Agreement are considered unofficial
information and in no way binding on either party. This Agreement and the attached and incorporated
exhibits constitute the entire agreement between the City and Photographer/Author 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 and its exhibits of the terms, conditions, promises, and covenants relating to
Photographer/Author's performance under this Agreement.
EXECUTED IN DUPLICATE, each of which will be considered an original, on this the ~3 day of
U~c,~..~ l~ , 2009.
ATTEST:
Armando Chapa
City Secretary
CITY F CORPUS CHRISTI
` R. Escobar
ity Manager
APPROVED AS TO LEGAL FORM ~'~
Lisa Aguilar, Assistant City Attorney
for City Attorney
X669 33-b i :~
PHOTOGRAPHER/AUTHOR
By: ~~~ r-' -~r---r
Printed Title
Date: f 2,/~~~v ~~
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~~ SUPPLIER NUMBER
fir, TO BE ASSIGNED BY CITY-
PURCHASING DIVISION
City of
COrpus
Chnsti
CITY OF CORPUS CHRISTI
DISCLOSURE OF INTEREST
All persons or firms seeking to do business with the City must provide the following information. Every question
must be answered. If the question is not applicable, answer with "NA". See reverse side for definitions.
COMPANY NAME : / ~ /~ /~ ` j
P. O. BOX: // ~
/~~ -
STREET: ~ ~ ~ ~ !~ ~' CITY: C ~ ~'/7 u j ~`G ~!`~'// ZIP:
FIRM IS: 1. Corporation ( ) 2. Partnership ( ) 3. Sole Owner (~`
4. Association ( ) 5. Other ( )
DISCLOSURE QUESTIONS
If additional space is necessary, please use the reverse side of this page or attach separate sheet.
1. State the names of each `employee" of the City of Corpus Christi having an "Interest" in the above named
"firm."
Name ~ ~ Job Title and City Department (if known)
2. State the names of each Council Member of the City of Corpus Christi having a "substantial interest" in the
above named "firm."
Name ~ l~ Title
tate t e names o eac oar mein er o t e City of orpus rlstl avmg a su stantla interest m t e
above named "firm."
/~ Name Board, Commission, or Committee
4. State the names of each employee or officer of a "consultant" for the City of Corpus Christi who worked on any
matter related to the subject of this contract and has an "interest" in the above named "firm."
Consultant
/ ~~
CERTIFICATE
I certify that all information provided is true and correct as of the date of this statement, that I have not
knowingly withheld disclosure of any information requested; and that supplemental statements will be promptly
submitted to the City o/f Corpus Christi, Texas as changes occur.
Certifying Person: !~ ~~ .., ~ JUn-ES Title: ~ ~ ~ 'O ~
ype or n
Signature of Certifying Person: ` -- ~ C~~t~-~- Date: I ? 2 ~/