Loading...
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. r-f)IR\I iaa\9009 ParkcWrt Rnnk Cnnt rlaan 1999909 dnr. Page 3 of 8 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. C,-fIIR\I ica\700A Parkc\Art Rnnk Cnni rlaan 17779n9 tint. Page 4 of 8 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 G-nIR\I ica\9009 Parks\Arf Rnnk Cnnt rlaan 1999909 tint. Page 5 of 8 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 G-I)IR\I iSa\9009 ParksWrt Rnnk Cnnt clean 1999909 dor. Page 6 of 8 (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, G-nIR\I isa\9nnA ParkcWrt Rnnk Cnnt rlr an 1777909 tint. Page 7 of 8 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 ~~ G-nIR\I isa\7009 Parkc\Art Rnok Cnnt dean 1777909 rinr•. ~~ 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 ~/