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HomeMy WebLinkAboutResolution - 2010-R0200 - Professional Services Agreement With Vivian Cooke Or Original Piece Of Art - 04/19/2010Resolution No. 2010—RO200 April 19, 2010 Item No. 5.24 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, Professional Services Agreement for an original piece of art for placement in the City of Lubbock Cemetery, by and between the City of Lubbock and Vivian T. Cooke, and related documents. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on April 19, 2010 `lam TOM MARTIN, MAYOR ATTEST: Rebecca barza, City Secretary APPROVED AS TO CONTENT: LeeAnn Dumbauld, City Manager APPROVED, IS TO FORM: Chad Weaver, Assistant City Attorney vwxcdocs/RESTSA-Vivian T. Cooke April 13, 2010 Resolution No. 2010-RO200 PROFESSIONAL SERVICES AGREEMENT This Professional Services Agreement ("Agreement") is entered into this 19th day of April, 2010, by and between the City of Lubbock (the "City"), a Texas home rule municipal corporation, and Vivian Cooke (the "Artist"). WITNESSETH WHEREAS, the City is interested in having an original piece of art for placement in the City of Lubbock Cemetery; and WHEREAS, Artist has substantial skill and experience in the creation of original artworks; and and WHEREAS, the City desires a completed original piece of art for the Cemetery; WHEREAS, the City desires to contract with Artist to perform services related to the creation of an original piece of art and Artist desires to provide the services and materials related to the art. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and Artist agree as follows: ARTICLE I Services 1.01 Artist agrees to the following: Artist shall perform all services and furnish all supplies, materials and equipment necessary for the creation, construction and completion of a piece of artwork ("Work") to be located in the City of Lubbock Cemetery. The work shall be exclusively based upon the model as represented in Exhibit "A" attached hereto and incorporated herein by reference. The Work shall be cast in bronze and be three (3) feet in height. It shall be cast by a foundry to be approved in advance by the City. The Work shall be created, constructed, and completed in a professional manner and with a finish that is suited and appropriate for outdoor display. The Work shall be delivered to the City in a finished and complete condition and in a manner that complies with the City's specifications for mounting at the City of Lubbock Cemetery. 1.02 Any sales, use or excise taxes, or similar charges relating to services and materials shall be paid by the Artist. 1.03 Artist shall deliver to the City the completed Work no later than twelve (12) months from date of execution of this Agreement. 1.04 At the time of delivery, Artist shall also deliver to the City any and all specifications, renditions, drawings, sketches, models, papers, documents or photographs of the Work or associated with the creation, or completion of the Work and all such items shall become the property of the City at the time of delivery. 1.05 Artist or City may terminate this Agreement for any reason upon thirty (30) days within notice to the other party. If the Agreement is terminated early, the Artist shall immediately deliver to the City the Work, in its present stage of completion, in addition to all items listed in paragraph 1.04, above. ARTICLE II Compensation 2.01 The consideration to be paid for the services to be provided the City as described in Article I shall be a fixed fee of $50,000.00, which shall constitute full -2- compensation for all services and materials to be performed and furnished by Artist under this Agreement. The fee shall be paid as follows: a. 1/3 of the fee upon execution of this Agreement; b. 1/3 of the fee when the Work is 50% complete; upon approval of the City Manager, or the City Manager's designee, after viewing and inspecting the Work at this stage of completion; and C. 1/3 of the fee upon delivery of the completed Work. Artist's failure to complete the Work, shall result in a forfeiture of any portion of the fee that has yet to be paid. ARTICLE III Warranties/Indemnity 3.01 Artist makes the following warranties of title: a. The Work is solely the result of her artistic efforts; b. The Work is unique and original and does not infringe upon any copyright; C. The Work, or a duplicate thereof, has not been accepted for sale elsewhere; and d. The Work is free and clear of any liens from any source whatsoever. ARTICLE IV Reproduction Rights 4.01 Artist retains all rights under the Copyright Act of 1976 17 U.S.C. § et. seq., and all other rights in and to the Work except ownership and possession of the piece, except as such rights are limited by this Agreement. City, as owner of the Work, shall have the full right to use photographs or representations of the Work in advertising, promotional and marketing materials for the City and its operations -3- and services. Artist will not make any additional exact duplicates, nor grant any other person permission to do so except with the written permission of the City. ARTICLE V Miscellaneous 5.01 Artist shall comply with all statutes, regulations, ordinances, rules and any other legal requirement related to, in any way, manner or form, the performance of the services contemplated herein. 5.02 Any notice required by this Agreement shall be deemed to be properly served, if (i) provided in person or by telephonic facsimile; or (ii) deposited in the United States mail by certified letter, return receipt requested, addressed to the recipient at recipient's address shown below, subject to the right of either party to designate a different address by notice given in the manner just described. Notice shall be deemed to be received when delivered if provided in person or by telephonic facsimile or, if deposited in the United States mail, as set forth above, three (3) days after depositing such notice in the United States mail, as set forth above. For City: Sally Abbe, Planner City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 For Artist: Vivian T. Cooke 1836 Manhattan Drive Lubbock, TX 79404 5.03 This Agreement is to be construed under Texas Law and the obligations of the parties created by this Agreement are performable, at least in part, in Lubbock -4- County, Texas. Venue for any action brought pursuant to this Agreement or activity contemplated hereby, shall exclusively be in Lubbock County, Texas. 5.04 This Agreement represents the entire and sole agreement between the City and Artist with respect to the subject matter hereof and supersedes any and all prior negotiations, understandings, representations or other agreements, whether written or oral. This Agreement may not be modified or amended except in writing and duly executed by each party hereto. 5.05 Nothing contained herein shall be construed to imply a joint venture, partnership or principal — agent relationship between Artist and City. 5.06 If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary to render it valid and enforceable so long as said modification is reasonably within the intent the parties as originally expressed. In the event such provision may not be so modified, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in force and effect as if such provision had not been included in this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized representatives as of the date first written above. CITY OF LUBBOCK Tom Martin, Mayor ATTEST: Rebe ca Garza, City Sec et ry VIVIAN T. COOKE -5- APPROVED AS TO CONTENT: xt&j&a� Le Dumbauld, City Manager APPROVED AS TO FORM: �Z74--� Chad Weaver, Assistant City Attorney vw Chad/Contracts-Agreements PSA -Vivian Cook April 13, 2010 OT