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HomeMy WebLinkAboutC2011-354 - 10/11/2011 - Approveda Page 1 of 7 AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI AND K SPACE CONTEMPORARY FOR ART MURAL- AT STARR STREET BALUSTRADE 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 K Space Contemporary of Corpus Christi, Texas, a Texas nonprofit corporation. WHEREAS, the City has identified location at Starr Street Balustrade ( "Project Premises ") for periodic painting of a mural ( "Artwork ") by K Space Contemporary and its volunteer painters, ( "Artist "), WHEREAS, the City and K Space Contemporary wish to set out the terms and conditions under which the Artwork is to be completed; NOW, THEREFORE, the City and K Space Contemporary, 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 K Space Contemporary, 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 initial Artwork is attached to this Agreement as Exhibit A. Prior to initiating any Artwork at the Project Premises, Artist shall review the design for Director's prior written 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 Director to K Space Contemporary. At termination of this agreement, K Space Contemporary shall paint over the Project Premises with fresh coat of paint, returning the Project Premises to the same condition as it existed prior to start of this Agreement. Section 4. Compensation and Payment Schedule. K Space Contemporary and its volunteers will provide all work under this Agreement at no cost to the City. The City may 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 60 days after execution of this MOA. Thereafter, the parties intend that the artwork will change either every six months or annually. Prior to initiating any Artwork at the Project Premises, Artist must review the design for Director's prior written approval. 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 Agreement and incorporated in this Agreement by reference. 2011 -354 M2011 -220 sU 10 /11/11er Data:Saved Attachments: KSpace MOU for mural Starr StQ.doc K Space Contemporary iNDE X ED Page 2of7 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 Director. Artist shall not reproduce the Artwork without prior approval of the Director. Section 10. Indemnification. K Space Contemporary ( "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, the 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. Prior to utilizing any volunteers at the Project Premises, K Space Contemporary must ensure that each volunteer has executed the attached Volunteer & Community Service Worker Release of Liability and Hold Harmless Agreement, and provide original executed document to the Director. 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 sup leers of Artist This rovision urv' es the expiration of this Agreement 4t.!ri .iss�m.!!.nta! _.. KAParkRe6SHAREDIAGENDA ITEMSICouncil Meetings1201119 Sept 27WSpace M4UWSpace MOU for mural Starr Stv2.doc Page 3 of 7 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. 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; or (2) by deposit with the United .States Postal Service as certified or registered mail, return receipt requested, postage prepaid; 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. All communications must only be made to the following: IF TO CITY: City of Corpus Christi Attn. Director of Parks and Recreation 1201 Leopard; 3 rd FI P.O. Box 9277 Corpus Christi, Texas 78469 -9277 (361) 880 -3461 (361) 880 -3864 Fax IF TO ARTIST: K Space Contemporary Attn: President, David L. Phillips 415 D Starr Street Corpus Christi, Texas 78401 G. tither parry may change the address to which notice is sent by using a method set out above. Artist shall notify City of an address change within ten (10) days after the address is changed. 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 Macintosh HD: Users: michellesmythe :Documents:Microsoft User Data:Saved Attachments:KSpace MOU for mural Starr Stv2.doc Page 4 of 7 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 the /Q 4` 8a y of T -U�tA 2011. CITY OF CORPUS CHRISTI LLIL-J0- - L Ronald L. Olson City Manager PPROV D AS TO LEGAL FORM . r i 2011 .A,At- Lisa Agui+ r, Assistant City Attorney for City Aft6rney K Space Contemporary B Printed Title Date: l d I 4&L AUT NOR IM IT MUNCIL •RIHp y Macintosh HID: Users: michellesmythe :Documents:Microsoft User Data:Saved A@achments:KSpace MOU for mural Starr Stv2.doc Page 5 of 7 EXHIBIT A ARTWORK Proposed Mural at Starr Street Balustrade KAParkRec1SHAREMAGENDA ITEMS1Council Meetings1201118 Sept 201KSpace MOU1KSpace MOU for mural Starr Stv2.doc Page 6 of 7 EXHIBIT B INSURANCE REQUIREMENTS I. 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, 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 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, required on all certificates or by applicable policy Bodily Injury and Property Damage endorsements Per Occurrence I Aggregate Commercial General Liability including: 1 $500,000 Combined Single Limit 1. Broad Form 2. Premises — Operations 3. Products /Completed Operations Hazard 4. Contractual Liability 5. Independent Contractors to include volunteers 6. Personal Injury /Advertising Injury Property Insurance KSpace will be responsible for any and all damage to any equipment used; regardless if owned, borrowed, rented or leased. Applicable when paid employees on site: MUST COMPLY WITH THE TEXAS WORKERS' COMPENSATION ACT AND Workers Compensation SECTION II OF THIS EXHIBIT $500,0001$500,000 /$500,000 Employers Liability 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. II. ADDITIONAL REQUIREMENTS A. Applicable when paid employees on site,:KSpace 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 and with endorsements approved by the Texas Department of Insurance. The Macintosh HD: Users: michellesmythe :Documents:Microsoft User Data:Saved Attachments:KSpace MOU for mural Starr StvIdoc , !r , Page 7 of 7 coverage provided must be in amounts sufficient to assure that all workers' compensation obligations incurred will be promptly met B. 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. 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). 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) 8264555- Fax ## D. 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 policy; • 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. E. 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 agreement. F.. 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. G. 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. 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 agreement. I. It is understood and agreed that the insurance required is in addition to and separate from any other obligation contained in this agreement. Macintosh HD: Users: michellesmythe :Documents:Microsoft User Data:Saved Attachments: KSpaceMOU for mural StarrStv2.doc