HomeMy WebLinkAboutC2011-342 - 9/27/2011 - ApprovedAGREEMENT BETWEEN
CITY OF CORPUS CHRISTI AND DUSTY DURRILL
FOR DONATION AND ACCEPTANCE OF A SCULPTURE
RECITALS
THIS AGREEMENT ( "Agreement "), is made this 2 Vkav of
2011, by and between the City of Corpus Christi ( "the City "), and Dusty urrill
( "Donor "), for the purpose of establishing a contractual relationship under which
Donor will procure and donate, deliver and install, and the City will accept, a
bronze -case sculpture including lighting, pedestal, and a walkway, for display on
City property at the Cole Park, Corpus Christi, Texas.
WHEREAS, Donor's agent has provided a letter to the City outlining the
Donor's offer to commission the creation of an original cast bronze sculpture
( "the Sculpture ") from artist Buddy Tatum ( "the Artist ") with the intention of
donating the same to the City as a gift; and
WHEREAS, the City and Donor (collectively "the Parties ") desire to
formalize their contractual relationship regarding the procurement and transfer of
the Sculpture, and to define their rights, obligations and liabilities therefore;
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, it is agreed by and between the parties as follows:
TERMS
1. Donation of Sculpture, lighting, pedestal, and walkway. Donor agrees
to procure and donate the Sculpture to the City, and the City agrees to accept the
sculpture, according to the terms of this Agreement. In addition, Donor agrees to
procure and donate the support pedestal, lighting, and a walkway, for City
Manager review of plans and acceptance.
2. Specifications of Sculpture. The Sculpture shall be a bronze -case
creation by artist Buddy Tatum, as shown and represented in the drawings and
photos included as Exhibit 1, attached to this agreement and herein incorporated.
The estimated dimensions of the Sculpture are; 16'height x 2.3'width x
10.5'depth. The estimated weight of the sculpture is 1,700 pounds.
The Sculpture shall include a bronze explanatory plaque identifying the Artist and
recognizing the Donor. The actual size, design, and wording of the explanatory
plaque shall be subject to the final approval of the City Director of Parks and
Recreation, whose approval shall not be unreasonably withheld. Donor shall
ensure that the Sculpture and pedestal are engineered for structural integrity and
windstorm certified.
3. Donor's Responsibilities. Donor shall procure and donate the Sculpture
including lighting, pedestal, and walkway to the City no later than 30 months after
the signing of the contract with Buddy Tatum, but in no event no later than
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09/27/11
Dusty Durrill INDEXED
Donor shall provide City Director with original signed letter from the Artist in
which the Artist grants to the City an unlimited license to graphically reproduce
the Sculpture for municipal noncommercial purposes in City brochures, catalogs,
and use in any City media or other City publications. City shall endeavor to
include the Artist name and sculpture title in the City publications or
reproductions. This provision shall survive termination or expiration of this
agreement.
Donor shall be solely and exclusively responsible for contacting, communicating
with, and coordinating delivery of the Sculpture from the Artist to the City.
Donor shall be solely and exclusively responsible for all costs related to
procurement, delivery, and installation of the Sculpture, and the lighting,
pedestal, and adjacent walkway components.
Donor shall provide to City any instructions received from the Artist regarding
routine maintenance required for the sculpture.
Donor shall endeavor to obtain an appraisal with a detailed description of the
Sculpture and the current appraised value to assist City with insurance
procurement.
Donor shall ensure that all work performed on the City property complies with all
applicable City, State, and Federal codes, statutes, ordinances and regulations.
4. City's Responsibilities. The City shall accept delivery, receipt and
ownership for the Sculpture at a mutually acceptable time and place. City shall
be responsible for on -going costs to maintain the sculpture, subject to availability
of funding.
5. Project Site. Donor shall arrange for the delivery and installation of the
Sculpture and associated pedestal, lighting and walkway, at the location in Cole
Park as depicted in the attached Exhibit 2. Should City Engineering or Utility staff
determine that this location is not suitable for the installation due to engineering
structural analysis or impact to City utility infrastructure, then the Director of
Parks and Recreation is authorized to work with Donor to identify another more
suitable location within Cole Park for placement of the sculpture.
6. Risk of Loss or Damage. Donor shall be solely responsible and assume
all risk of loss or damage to the Sculpture until receipt and acceptance thereof by
the City. Acceptance by the City shall occur after delivery and successful
installation at the project site.
7. Installation of Sculpture. Donor shall insure that its contractor hired by
Donor to install the Sculpture presents and reviews the construction plans with
City Engineering and Parks and Recreation Departments and for their prior
approval. Donor must include, in all construction contracts entered into for the
installation of the sculpture and any additional components described herein, a
provision requiring the Donor's contractor, to indemnify, hold harmless, defend
and insure City, including its officers, agents, and employees, against the risk of
legal liability for death, injury or damage to persons or property, direct or
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consequential, arising or alleged to arise out of, or in connection with, the
performance of any or all of the work, whether the claims and demands made are
just or unjust, unless same are caused by the gross negligence or willful act of
City, its officers, agents, or employees. Specific language is as follows:
Donor shall require Contractor to obtain the insurance described in the attached
Exhibit 3 and applicable permits prior to beginning work on City property.
8. Relationship of Parties. No agent, employee, representative or
subcontractor of Donor shall be deemed to be the employee, agent,
representative or subcontractor of the City. None of the benefits provided by the
City to its employees, including, but not limited to, compensation, insurance and
unemployment insurance, are available from the City to Donor or its employees,
agents, representatives or subcontractors. Donor will be solely and entirely
responsible for its acts and for the acts of Donor's agents, employees,
representatives and subcontractors during the performance of this Agreement.
9. Expiration; Termination. This Agreement shall expire automatically
upon the City's receipt and acceptance of the Sculpture. Once the commission
contract is signed with the artist, neither the City nor the Donor can terminate this
agreement.
10. Indemnification /Hold Harmless. Donor shall defend, indemnify and hold
the City, its officers, officials, employees and volunteers harmless from any and
all claims, injuries, damages, losses or suits including attorney fees, arising out of
or in connection with the performance of this Agreement, except for injuries and
damages caused by the sole negligence of the City. The provisions of this
section shall survive the expiration or termination of this Agreement.
11. Entire Agreement. The written provisions and terms of this Agreement,
together with all documents attached hereto, shall supersede all prior verbal
statements of any officer or representative of and such statements shall not be
effective or construed as entering into or forming a part of, or altering in any
manner whatsoever, this Agreement.
12. Modification. No waiver, alteration or modification of any of provisions of
this Agreement shall be binding unless in writing and signed by a duly authorized
representative of City and Donor.
13. Assignment. Any assignment of this Agreement by Donor without the
written consent of the City Director of Parks and Recreation shall be void.
14. Written Notice. All communications regarding this Agreement shall be
sent to the parties at the addresses listed below. Any written notice hereunder
shall become effective as of the date of mailing by registered or certified mail,
and shall be deemed sufficiently given if sent to the addressee at the address
stated in this Agreement or such other address as may be hereinafter specified in
writing.
15. Non - Waiver of Breach. The failure of the City to insist upon strict
performance of any of the covenants and agreements contained herein, or to
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exercise any option herein conferred in one or more instances shall not be
construed to be a waiver or relinquishment of said covenants, agreements or
options and the same shall be and remain in full force and effect.
16. Resolution of Disputes, Governing Law. Should any dispute,
misunderstanding or conflict arise as to the terms and conditions contained in
this Agreement, the matter shall be referred to the City Manager, whose decision
shall be final. In the event of litigation arising out of this Agreement, the
prevailing party shall be reimbursed for its reasonable attorney fees from the
other party. This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas.
IN WITNESS WHEREOF, the parties have executed this Agreement on
the date and year above written.
CITY OF CORPUS CHRISTI
By: L fYM4�) 0 , k0u)
Ronald L. O on, City Manager
CITY CONTACT
City Manager
1201 Leopard Street
Corpus Christi, Texas 78401
APPROVED AS TO FORM: �t�5�v I/
By: '�� zts:�i
Lisa Ag
Assistant City Attorney
For City Attorney
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Donor Address:
Dusty Durrill
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Artist Address:
Buddy Tatum
5030 Bonner
Corpus Christi, Texas 78412
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SECRETARY ,Vb.
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EXHIBIT 1
Estimated dimensions
16'height x 2.3'width x 10.5 depth
Estimated weight 1,700 Ibs
"Wind Dancer" Sculpture
Buddy Tatum, Artist
Exhibit 2
Location of Artwork
Exhibit 3
INSURANCE REQUIREMENTS
INSTALLATION CONTRACTOR'S LIABILITY INSURANCE
A. Installation Contractor must not commence work under this agreement until all insurance
required herein has been obtained and such insurance has been approved by the City.
Installation Contractor must not allow any subcontractor to commence work until all
similar insurance required of the subcontractor has been so obtained.
B. Installation Contractor must furnish to the City's Risk Manager, two (2) copies of
Certificates of Insurance with applicable policy endorsements, 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 the General liability policy. A waiver of
subrogation is required on all applicable policies.
TYPE OF INSURANCE
MINIMUM INSURANCE COVERAGE
30 -Day Notice of Cancellation required on all
Bodily Injury and Property Damage
certificates or by applicable policy endorsements
Per occurrence - aggregate
Commercial General Liability including:
$1,000,000 COMBINED SINGLE LIMIT
1. Commercial Broad Form
2. Premises — Operations
3. Products/ Completed Operations
4. Contractual Liability
5, Independent Contractors
6. Personal Injury I Advertising injury
Automobile Liability
$500,000 COMBINED SINGLE LIMIT
1. Owned Vehicles
2. Hired & Non -owned vehicles
Installation Floater
For value of sculpture, fighting, pedestal and
walkway
Applicable while on city property
WORKERS' COMPENSATION
WHICH COMPLIES WITH THE TEXAS
WORKERS' COMPENSATION ACT AND
SECTION II OF THIS EXHIBIT
EMPLOYERS' LIABILITY
$500,0001$500,0001$500,000
C. In the event of accidents of any kind, the Contractor must furnish the Risk Manager with
copies of all reports of any accidents within ten (10) days of any accident.
II. ADDITIONAL REQUIREMENTS
A. Contractor must obtain workers' compensation coverage through a licensed
insurance company in accordance with Texas law. The contract for coverage
must be written on a policy with endorsements approved by the Texas
Department of Insurance. The coverage provided must be in amounts sufficient
to assure that all workers' compensation obligations incurred will be promptly
met.
B. Contractor's financial integrity is of interest to the City; therefore, subject to
Contractors right to maintain reasonable deductibles in such amounts as are
approved by the City, Contractor shall obtain and maintain in full force and effect
for the duration of this Contract, and any extension hereof, at Contractor'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.
C. 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). Contractor 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. Contractor 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 #
D. Contractor 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;
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• 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;
• Workers' compensation and employers' liability policies will provide a waiver of
subrogation in favor of the City; and
• 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.
E. Within five (5) calendar days of a suspension, cancellation, or non - renewal of
coverage, Contractor shall provide a replacement Certificate of Insurance and
applicable endorsements to City. City shall have the option to suspend
Contractor'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.
F. In addition to any other remedies the City may have upon Contractor'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 Contractor to
stop work hereunder, and/or withhold any payment(s) which become due to
Contractor hereunder until Contractor demonstrates compliance with the
requirements hereof.
G. Nothing herein contained shall be construed as limiting in any way the extent to
which Contractor may be held responsible for payments of damages to persons
or property resulting from Contractor's or its subcontractor's performance of the
work covered under this agreement.
H. It is agreed that Contractor'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 agreement.
It is understood and agreed that the insurance required is in addition to and
separate from any other obligation contained in this agreement.
2011 Cole Park Art Donation installation ins. req.
8 -16 -11 ep Risk Mgmt.
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