HomeMy WebLinkAboutC2010-068 - 2/5/2010 - NAPage 1 of 8
AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI AND K SPACE
CONTEMPORARY FOR ART MURAL AT LA RETAMA PARK
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 City
Manager or the City Manager's designee ("City Manager") and K Space Contemporary of
Corpus Christi, Texas and its volunteer painters ("Artist").
WHEREAS, the City has identified location at La Retama Park ("Project Premises") for periodic
painting of a mural by Artist ("Artwork"),
WHEREAS, the City and Artist wish to set out the terms and conditions under which the
Artwork is to be completed;
NOW, THEREFORE, the City and Artist, 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. Contract Administrator. The City's contract administrator for this Agreement is the
City's Director of Parks and Recreation ("Director").
Section 2. Artwork. The City, and Artist ,through this Agreement, agree to have Artist design,
paint, and complete work of art to be located at Project Premises ("Artwork"). A representative
design of the Artwork will be approved by the Director and will be attached to this Agreement as
Exhibit A and incorporated in this Agreement by reference. Prior to initiating the Artwork, Artist
shall review the design for Contract Administrator's approval.
Section 3. Term. The term of this Agreement is three (3) years, effective upon City Manager
signature. This Agreement may be terminated by the City with or without cause upon thirty (30)
days written notice by City Manager to Artist.
Section 4. Compensation and Payment Schedule.
The Artist and City will work together on services and artwork ;the City will assist with supplies
when the budget allows.
Section 5. Fabrication of Artwork.
Artist shall furnish all labor, tools, materials, machinery, equipment, and incidentals necessary
for the execution of the Artwork.
Section 6. Completion of Artwork. The parties anticipate that the initial Artwork will be fully
completed no later than 45 days after execution of this MOA. Thereafter, the parties intend that
the artwork will change either every six months or annually, subject to funding of the City and
the Artist.
Section 7. Insurance.
A. Artist shall secure and maintain, during the term of this Agreement and at Artist's sole
expense, the levels and types of insurance set out in Exhibit B, a copy of which is
attached to this Aareement and incorporated in this Agreement by reference.
2010-068
02/05/10
h
K Space Contemporary ~tVDEXED
Page2of8
B. Any subcontractors, if approved by the City, must secure and maintain the same levels
and types of insurance shown in Exhibit B prior to performing any work related to this
Agreement.
C. Artist shall provide proof, by certificate of insurance meeting the limits and requirements
set out in Exhibit B, to the City's Risk Manager and Director upon the execution of this
Agreement.
D. The certificate of insurance must name the City as an additional insured and must
provide the City with at least 30 days written notice of cancellation, material change, or
intent not to renew any insurance coverage required by Exhibit B.
Section 8. Artist's Expenses. Artist shall be responsible for the payments of any required
insurance certificates; shipping costs of the Artwork to the City; all costs of travel by Artist; all
labor costs for Artist'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 Artist under this Agreement.
Section 9. Title.
Title to the Artwork will pass to the City upon completion. Artist grants the City receives an
irrevocable license to reproduce the artwork for municipal purposes deemed appropriate by the
City Manager. Artist shall not reproduce the Artwork without prior approval of the City
Manager.
Section 10. Indemnification. Artist ("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, volunteers, 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 Artwork and any act or omission of the Indemnitor or of any volunteer, agent or
employee of Indemnitor pursuant to performance under the terms of this Agreement. This
provision survives the expiration or earlier termination of this Agreement.
Section 11. Artist's Warranties.
Artist warrants and guarantees that, upon completion of the Artwork, 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 volunteers, employees and suppliers of
Artist. This provision survives the expiration of this Agreement.
Section 12. Collection Management.
A. The City reserves the right to manage its collection of art, including the Artwork,
consistent with all applicable laws, the City's Charter, ordinances, and municipal policies.
The City, shall determine the Artwork's placement at the Project Premises. This
reservation of rights survives the expiration of this Agreement.
H:\LEG-DIR\Lisa\2010 Park\KSpace MOU.doc
Page 3 of 8
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. This reservation of rights by the
City survives the expiration of this Agreement.
Section 13. Compliance with Laws.
Artist must comply with all applicable Federal, State, and local government laws, rules,
regulations, and ordinances that may be relevant or applicable to Artist's performance under this
Agreement.
Section 14. 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 15. Interpretation. This Agreement will be governed by and construed in accordance
with the laws of the State of Texas.
Section 16. 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
deposit with an overnight express delivery service, for which service has been prepaid;
(4) by fax transmission; or (5) 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 of Corpus Christi
Attn: Director of Parks and Recreation
1201 Leopard; 3rd FI
P.O. Box 9277
Corpus Christi, Texas 78469-9277
(361) 880-3461
(361) 880-3864 Fax
stacietCa~cctexas.com
IF TO ARTIST:
K Space Contemporary
Attn: Director, Michelle Smythe
415 D Starr Street
Corpus Christi, Texas 78401
C. Either party may change the address to which notice is sent by using a metnoa set out
above. Artist shall notify City of an address change within ten (10) days after the
address is changed.
H:\LEG-DIR\Lisa\2010 Park\KSpace MOU.doc
Page 4 of 8
Section 17. Mechanics and Materialman's Liens. Artist must not allow the Artwork to be
encumbered by any notice of intention to file a mechanic or materialman's lien or by the filing of
a mechanic or materialman's lien. In the event that any notice of intention to file a mechanic or
materialman's lien is received by Artist or a mechanic or materialman's lien is filed against the
Artwork purporting to be for labor or materials, Artist must discharge the same within ten (10)
days of the notice or filing.
Section 18. Disputes. Any disputes concerning Artist's performance of this Agreement that
are not disposed of by agreement between Artist and the Director will be referred to the City
Manager or the City Manager's designated representative. If these persons do not agree upon
a decision within a reasonable period of time not to exceed forty-five (45) days, the parties may
pursue other legal rights and remedies to resolve the disputes.
Section 19. 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 20. Entire Agreement. No verbal agreements or conversations between any officer,
employee, or agent of the City and Artist or Artist'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 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 and its exhibits of the terms, conditions,
promises, and covenants relating to Artist's performance under this Agreement.
EXECUTED IN DUPLICATE, each of which will be considered an original, on this theS~L~.day
of ~(rJri v 2010.
CITY OF. CORPUS CHRISTI
` ngel R. Escobar
City Manager
APPROVED AS TO LEGAL FORM ~ - S 2010
Lisa Aguil ,Assistant City Attorney
for City Attorney
H:\LEG-DIR\Lisa\2010 Park\KSpace MOU.doc
Page5of8
K Space Contemporary
~ ~.
~ ,~
~ -~
r~~~ ~ r nip i (~ Sri ~ ~ ~ .
Printed Title
Date: ~ _ ~' ` ~ Q
H:\LEG-DIR\Lisa\2010 Park\KSpace MOU.doc
Page6of8
EXHIBIT
INSURANCE REQUIREMENTS
Liability Insurance
A. KSpace must not commence work under this agreement until KSpace has obtained
all insurance required herein and such insurance has been approved by the City.
KSpace must not allow any subcontractor to commence work until all similar
insurance required of the subcontractor has been so obtained.
B. KSpace must furnish to the City's Risk Manager, two (2) copies of Certificates of
Insurance, showing the following minimum coverage by insurance company(s)
acceptable to the City's Risk Manager. The City must be named as an additional
insured for all liability policies, and a blanket waiver of subrogation is required on all
applicable policies.
TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE
30-Day Written notice of cancellation, Bodily Injury and Property Damage
material change, non-renewal or termination
required on all certificates Per Occurrence /Aggregate
Commercial General Liability including: $500,000 Combined Single Limit
1. Broad Form
2. Premises -Operations
3. Products/Completed Operations Hazard
4. Contractual Liability
5. Broad Form Property Damage
6. Independent Contractors to include
volunteers
7. Personallnjury
C. In the event of accidents while working on City property, KSpace must furnish the Risk
Manager with copies of all reports of any accidents within ten (10) days of any accident.
Article I. II. ADDITIONAL REQUIREMENTS
A. KSpace's financial integrity is of interest to the City; therefore, subject to KSpace's right to
maintain reasonable deductibles in such amounts as are approved by the City, KSpace shall
obtain and maintain in full force and effect for the duration of this Contract, and any extension
hereof, at KSpace's sole expense, insurance coverage written on an occurrence basis, by
companies authorized and admitted to do business in the State of Texas and with an A.M.
Best's rating of no less than A- (VII).
H:\LEG-DIR\Lisa12010 Park\KSpace MOU.doc
Page 7 of 8
B. The City shall be entitled, upon request and without expense, to receive copies of the
policies, declarations page and all endorsements thereto as they apply to the limits required by
the City, and may require the deletion, revision, or modification of particular policy terms,
conditions, limitations or exclusions (except where policy provisions are established by law or
regulation binding upon either of the parties hereto or the underwriter of any such policies).
KSpace shall be required to comply with any such requests and shall submit a copy of the
replacement certificate of insurance to City at the address provided below within 10 days of the
requested change. KSpace shall pay any costs incurred resulting from said changes. All notices
under this Article shall be given to City at the following address:
City of Corpus Christi
Attn: Risk Management
P.O. Box 9277
Corpus Christi, TX 78469-9277
(361) 826-4555- Fax #
C. KSpace agrees that with respect to the above required insurance, all insurance policies
are to contain or be endorsed to contain the following required provisions:
• Name the City and its officers, officials, employees, volunteers, and elected
representatives as additional insured by endorsement, as respects operations and
activities of, or on behalf of, the named insured performed under contract with the City,
with the exception of the workers' compensation and professional liability polices;
• Provide for an endorsement that the "other insurance" clause shall not apply to the City
of Corpus Christi where the City is an additional insured shown on the policy;
• Provide thirty (30) calendar days advance written notice directly to City of any
suspension, cancellation, non-renewal or material change in coverage, and not less than
ten (10) calendar days advance written notice for nonpayment of premium.
D. Within five (5) calendar days of a suspension, cancellation, or non-renewal of coverage,
KSpace shall provide a replacement Certificate of Insurance and applicable
endorsements to City. City shall have the option to suspend KSpace's performance
should there be a lapse in coverage at any time during this contract. Failure to provide
and to maintain the required insurance shall constitute a material breach of this contract.
E. In addition to any other remedies the City may have upon KSpace's failure to provide and
maintain any insurance or policy endorsements to the extent and within the time herein
required, the City shall have the right to order KSpace to stop work here under and/or
withhold any payment(s) which become due to KSpace hereunder until KSpace
demonstrates compliance with the requirements hereof.
F. Nothing herein contained shall be construed as limiting in any way the extent to which
KSpace may be held responsible for payments of damages to persons or property
resulting from KSpace's or its subcontractors or volunteers' performance of the work
covered under this agreement.
H:\LEG-DIR\Lisa\2010 Park\KSpace MOU.doc
Page 8 of 8
G. It is agreed that KSpace's insurance shall be deemed primary and non-contributory with
respect to any insurance or self insurance carried by the City of Corpus Christi for
liability arising out of operations under this contract.
H. It is understood and agreed that the insurance required is in addition to and separate
from any other obligation contained in this contract.
H:\LEG-DIR\Lisa12010 Park\KSpace MOU.doc