Possible Breach of Contract by City of El Paso over “Uplift” Public Art Sculpture

Artist Margarita Cabrera has acquired the legal services of Attorney Francis S. Ainsa Jr. of Ainsa Hutson LLP, Attorneys at Law, for possible breach of contract regarding “Uplift,” a public art sculpture contracted by the City of El Paso.   Attorney Ainsa sent a letter to Mayor Oscar Leeser and City Representatives on April 26, 2015 (see PDF at end of this article).  According to Ainsa’s letter, Cabrera was away on vacation the week of March 9th when she received a telephone call from her studio manager that the City personnel were at the roundabout and they were “cutting her sculpture and hauling it away.”   Cabrera then checked her e-mail and  she saw that Pat Dalbin, the El Paso Public Art Program Manager, had sent her the following message:

Margarita,

It has come to our attention that your art piece “Uplift” currently being installed at the Country Club roundabout does not conform to the design accepted by the City of El Paso. Your final approved documents (attached) indicated that the metal shavings would be tossed into the concrete foundation but this is not the case you have significantly altered the design by adding actual guns to the work and compromised the structural integrity. You are to cease and desist all work and meet with us first thing Monday morning to discuss this matter. Please let us know as soon as possible at what time you will be at in our offices to discuss. Thank you.

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Cabrera did not include actual guns in the sculpture, but rather components (or pieces of guns) that had been confiscated by the Sheriff’s Department, but not the “actual guns” as Dalbin states in her e-mail.   According to the Ainsa letter, “the City was aware of the fact that the sculpture included components from guns.”  Also, her piece was dismantled and destroyed when Cabrera was out-of-town and without her consent.   To this day Cabrera has not been able to view what is left of her sculpture.   The art piece is still owned by Cabrera because she had not given the title to the artwork to the City (which is the standard practice in public art commissions), so it was still rightfully hers.  Section 2.8.2 of the contract states that “Title of the Artwork passes to the City apon [upon] final acceptance by the City and final payment to the Artist.”

Cabrera called Ms. Dalbin numerous times via telephone on March 13th, but Dalbin did not return her calls, in spite of Cabrera leaving several voice messages.   On Monday, March 16, 2015, Cabrera met with Laura Gordon, Tracey Jerome, the newly-hired Museums and Cultural Affairs Department (MCAD) Director and Acting Director of the El Paso Museum of Art and Dalbin, but as the letter states, she was told that the City Manager Tommy Gonzalez had ordered the sculpture removed because its design had been altered and was structurally unsound.  That it was “structurally unsound” is perplexing because cities often sign off on structural engineers’ plans (it is not erected if it is not safe).  It will be interesting to see how this issue pans out.

PDF Letter from Attorney Francis S. Ainsa Jr. to City of El Paso: Ltr to City 042615(3)

Link to change.org petition: https://www.change.org/p/city-of-el-paso-mayor-and-council-tell-us-why-uplift-was-removed

 

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