Loading...
CM-2019-0096 - 4/5/2019AGREEMENT FOR THE COMMISSIONING OF ARTWORK This Agreement for Commissioning of Artwork ("Agreement") is made by and between the City of Round Rock (hereinafter referred to as the "City") and Designs by LaPaso (hereinafter referred to as the "Artist") to be effective as of the last date of due execution by all parties (the "Effective Date"). The City and the Artist may each be referred to as "party" or "parties" as the context may require. RECITALS WHEREAS, the City desire to purchase two (2) pieces of kinetic art made of stainless steel and stainless glass from the Artist; and WHEREAS, one of the pieces is named Paradox of Bling and the other piece is named Starburst (collectively the "Sculptures"); and WHEREAS, the City desires to commission the creation of the Art from the Artist and the Artist desires to create said Art, and the City desires the same; and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective duties and obligations hereunder, NOW THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is mutually agreed by and between the parties as follows: ARTICLE U TERM 1.1 The term of this Agreement shall be from the Effective Date until the full and satisfactory completion of the work as specified in Article III and in accordance with the terms of this Agreement. ARTICLE H RETENTION OF ARTIST 2.1 Retention. The City does hereby retain the Artist to perform the work and services described herein. &Y -2-0(q-00%, 2.2 Independent Contractor. The Artist is an independent contractor and will furnish all supervision, labor, materials, supplies, equipment, costs and all other incidentals, except as specifically provided in this Agreement. This Agreement does not create a partnership, employer-employee, or joint venture relationship between the parties. 2.3 Nonassignability., The Artist may not assign any rights, benefits, or claims arising under the Agreement without the prior written consent of the City. ARTICLE III ARTIST'S OBLIGATIONS 3.1 General. The Artist will create the Sculptures within the term of this Agreement in a competent and professional manner. The Artist will pay all costs associated with the creation of the Sculptures, including but not limited to labor, materials, travel expenses and other incidentals. 3.2 The Kinetic Art;. The work performed under this Agreement shall consist of creation of the Sculptures (Paradox Bling and Starburst). The Sculptures shall be 15 ft x 6 ft wide and shall be created as shown in Exhibit "A," attached hereto and incorporated herein by reference for all purposes. 3.3 Time Schedule. The Artist shall produce the Sculptures in accordance with the following timeline: Within thirty (30) days from receipt by the Artist of down payment from the City for the Sculptures. 3.5 Risk of Loss. The Artist has the sole responsibility, and bears all risk, for damage or loss of the Sculptures during fabrication. The Artist shall take such measures as are reasonably necessary to protect the Sculptures from loss or damage during the creation, storage, transportation, and delivery of the Sculptures. 3.6 Artist's Warranties. The Artist warrants and represents the following: (A) Ownership. The Artist is the sole owner of the Sculptures and has full power and authority to make this Agreement. The Sculptures do not infringe any copyright, violate any property rights, or contain any scandalous, libelous, or unlawful matter. 2 (B) Title. Immediately upon installation of the Sculptures and receipt of payment in full by the Artist, the City shall acquire good title to the Sculptures and the Sculptures shall be free from any and all claims, liens, and charges by any person or entity, including but not limited to, any employee, supplier, or subcontractor of the Artist. (C) Defects. The Sculptures shall be constructed in a workmanlike manner and shall be free from any and all defective materials or workmanship. Upon request from the City, the Artist shall remedy, or pay to remedy, any loss or damage resulting from defective materials or workmanship. 3.7 Indemnification. The Artist shall defend, indemnify, and hold harmless the City and their licensees, agents, and employees against all claims, suits, costs, damages, and expenses that the City or its licensees, agents and employees may sustain by reason of any scandalous, libelous, or unlawful matter contained or alleged to be contained in the Sculptures or any infringement or violation by the Sculptures of any copyright or property right. If any such claim shall arise during the term of this Agreement, the City may withhold any sums due to the Artist under this Agreement until such claim or suit has been settled or withdrawn. The Artist further agrees to defend, indemnify, and hold harmless the City and its licensees, agents and employees against all claims, suits, costs, damages, and expenses that the City or its licensees, agents or employees may sustain by reason of any negligent action of the Artist. ARTICLE IV PAYMENT OBLIGATIONS 4.1 Payments. The City shall pay the Artist the amount of Thirty Thousand and No/100 Dollars ($30,000.00) (invoices set forth in Exhibit "A"). The payment shall be made as follows: (A) Upon execution of this Agreement, the City shall remit a down payment of Fifteen Thousand and No/100 Dollars ($15,000.00) to Artist (the "Down Payment"). (C) Upon delivery and receipt of the Sculptures, the City shall remit a final payment of Fifteen Thousand and No/100 Dollars ($15,000.00) (the "Final Payment") to the Artist. 4.2 Approvals. Within ten (10) days of any request for approval contemplated by this Agreement, the City shall respond to such request in writing, either approving or 3 disapproving. If the City disapproves of any stage of the Sculptures, the City shall provide written comments reflecting the reasons for such disapproval. ARTICLE V COPYRIGHT AND REPRODUCTION RIGHTS 7.1 Copyriahts. The Artist retains all rights under copyright law to which the Sculptures may be subject. The City is not responsible for any third -party infringement of the Artist's copyright and is not responsible for protecting the intellectual property rights of the Artist. The Artist expressly acknowledges and agrees that the Sculptures may be photographed by the public and media. 7.2 Artist Reproductions. The Artist shall not make, or allow to be made, any additional duplicate editions of the Sculptures of any scale in any medium without the written permission of the City. Nothing in this paragraph prevents the Artist from creating future artwork in the Artist's manner and style of artistic expression or using images of the Sculptures to be included in his portfolio. 7.3 Reproductions. The Artist grants the City and its assigns an irrevocable license to make and use graphic reproductions of the Sculptures, including Artist -provided two- dimensional graphic reproductions, for any and all purposes, including but not limited to brochures, media publicity, fundraising media and all other graphic media, digital or otherwise. The rights granted under this paragraph are royalty -free, unrestricted and permanent. All reproductions by the City will contain a credit line that includes the Artist's name and the title of the Sculpture depicted. ARTICLE VI TERMINATION 8.1 Termination for Cause. If the City determines that the Artist has failed to comply with the terms of this Agreement, the City may suspend or terminate this Agreement. Prior to suspension or termination, the City shall notify the Artist of the need to take corrective action. If the corrective action is not taken within thirty (30) days of the date of the notice, the City may terminate or suspend the Agreement. The City reserves the right to withhold further payments and prohibit the Artist from incurring additional obligations of funds during the investigation of the alleged compliance breach and pending corrective action by the Artist or a decision by the City to terminate the Agreement. If the Agreement is terminated under this paragraph, the Artist shall provide an accounting of all expenses incurred by the Artist under this Agreement prior to the date of termination. Within ten (10) days of approval of the accounting by the City, the Artist shall remit to 4 the City all funds paid to the Artist under this Agreement in excess of the expenses incurred. The rights and remedies provided in this paragraph are not exclusive and are in addition to any other rights and remedies provided by law or under this Agreement. 8.2 Termination for Convenience. The City of Round Rock may, by fifteen (15) days written notice, terminate this Agreement, in whole or in part, with or without cause. If funds pledged to the City for the creation of the Sculptures, whether public or private, are withdrawn, reduced, or limited in any way after the Effective Date of this Agreement and prior to completion of the Sculptures, the City may terminate the Agreement without the fifteen (15) day notice requirement, subject to re -negotiation at the City's discretion under any new funding limitations and conditions. If the Agreement is terminated under this paragraph, the Artist may retain all funds paid to the Artist under this Agreement prior to the date of the termination. Retention of amounts previously paid is the Artist's sole and exclusive remedy in the event of termination under this Agreement. 8.3 Death or Incapacity. If the Artist becomes unable to comply with the terms of this Agreement due to death or incapacitation, such death or incapacity shall not be deemed a breach of this Agreement. However, nothing in this Section obligates the City to accept the Sculptures. If the Artist dies or becomes incapacitated during the term of this Agreement, the Agreement shall continue or terminate as follows: (A) In the event of incapacity, the City may assign the Artist's obligations and services under this Agreement to another artist in its sole discretion. Alternatively, the City may elect to terminate this Agreement. A termination under this paragraph shall be treated as a termination for convenience under paragraph 7.2. (B) In the event of the death of the Artist, this Agreement shall terminate effective as the date of death. The executor, administrator, or heirs of the Artist's estate shall all the Work completed by the Artist under this Agreement in whatever form it may be in at the time of death. The City shall not be obligated to make any additional payments under this Agreement following the death of the Artist. The City may not represent the Sculptures, or other work, to be the completed work of the Artist unless agreed upon by the Artist's executor, administrator or heirs. 8.4 Right of Refusal. The City has the right to refuse the Sculptures. Such refusal shall be made in writing and signed by the City. If the City refuse the Sculptures, the Artist shall retain the Sculptures and all funds paid prior to the refusal. After the date of the refusal under this paragraph, the City shall not be obligated to pay any additional funds to the Artist. 5 8.5 Termination by Artist. The Artist may terminate this Agreement only due to breach of this Agreement by the City. Before the Artist may terminate this Agreement under this paragraph, the Artist must provide written notice of alleged breach by City and request adequate assurance of the City's intent to remedy the alleged breach. The City shall have thirty (30) days to remedy the breach or to provide assurance acceptable to the Artist that the alleged breach will be remedied. If the City fails to remedy the alleged breach, or to provide assurance acceptable to the Artist that the breach will be remedied, the Artist may terminate this Agreement under this Section. ARTICLE IX GENERAL 9.1 Notices. All notices and other communications in connection with this Agreement must be in writing and shall be considered given as follows: (A) When delivered personally to recipient's address as stated in this Agreement; or (B) Three (3) days after being deposited in the United States mail, postage prepaid, to the recipient's address stated in this Agreement. (C) The parties' addresses are as follows: City of Round Rock: City of Round Rock 221 East Main Round Rock, Texas 78664 Artist: Designs by LaPaso Jim LaPaso 307 Homestead Road Kyle, Texas 78640 (D) Nothing contained herein restricts the transmission of routine communications between the parties. 9.2 Applicable Law; Enforcement and Venue, This Agreement is performable and enforceable in the City of Round Rock, Williamson County, Texas. If legal action is necessary by any party with respect to the enforcement of any or all of the terms of 6 conditions of this Agreement, exclusive venue for same lies in the courts of Williamson County, Texas. This Agreement is governed by and construed in accordance with the laws and court decisions of the State of Texas. The parties expressly agree that no claims or disputes between the parties arising out of or relating to this Agreement shall be submitted to or decided by any arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section I-14). 9.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties. No representation, warranty, covenant, agreement, or condition not expressed in this Agreement will be binding upon the parties hereto or will affect or be effective to interpret, change or restriction the provisions of this Agreement. This Agreement may only be amended or supplemented by a written agreement executed by all parties. 9.4 Counternarts. This Agreement may be executed in as many counterparts as may be convenient or required. It is not necessary that the signature of all persons required to bind any party appear on each counterpart. All counterparts will collectively constitute a single instrument. 9.5 Force maieure. None of the parties shall be deemed in violation of this Agreement if a party is prevented from performing any of its obligations hereunder by reasons of force majeure. For purposes of this Agreement, `force majeure" means an act of terror committed within the United States of America that materially impairs business operations; a prolonged and unforeseen strike, riot, or occurrence of civil disobedience that materially impairs business operations; a prolonged and unforeseen shortage of fuel, labor, or material; delay related to or caused by a severe weather event, such as a tornado, a hurricane, or flooding; interruption of utilities; fire or other casualty; or any other act of God beyond a party's reasonable control, which could not be avoided by the exercise of due care. 9.6 Time is of the Essence. The parties agree that time is of the essence of this Agreement and that any failure by a party to fulfill its obligations within the timeframes in this Agreement will constitute a material breach of this Agreement. 9.7 Severability. The provisions of this Agreement are severable. If any term or provision is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of the Agreement 7 IN WITNESS WHEREOF, the City and the Artist have executed this Agreement on the dates indicated below. CITY OF ROUND ROCK, TEXAS By: � �. Y Date:"` �✓ awl % ATTEST: By: (�;M L" &Lk�' Sara L. White, City Clerk FOR CITY P AS TO FORM: By: City Attorney ,:::�PFQW A& t44> 8 ARTIST By: signs by LlWaso, Artist Date: 2 DESIGNS BY LA PASO INVOICE 2/24/2019 Outdoor Sculpture Project 512-396-4441 jim@lapaso.com City of Round Rock 221 E. Main St. 307 Homestead Rd Round Rock, TX 78664 Kyle, TX 78640 Invoice Number: 67891 Terms: 50% down payment, remainder due on receipt Paradox of Bling 1 $ 15,000 $ 15,000 Total $15,000 Down payment clue now $ 7,500 Due on receipt of Sculpture $ 7,500 Sculpture will be completed within one month of receipt of down payment. Thanks so much for including my work in your landscape project! Sincerely yours, Jim LaPaso 1 Exhibit "A" fq (,t`I�1 DESIGNS BY LA PASO INVOICE 2/24/2019 Outdoor Sculpture Project 512-396-4041 jim@lapaso.com City of Round Rock 221 E. Main St. 307 Homestead Rd Round Rock, TX 78664 Kyle, TX 78640 Invoice Number: 67890 Terms: 50% down payment, remainder due on receipt Starburst (16' x 5') 1 1 $ 15,000: $ 15,000 Total $15,000 Down payment due now $ 7,500 Due on receipt of Sculpture $ 7,500 Sculpture will be completed within one month of receipt of down payment. Thanks so much for including my work in your landscape project! Sincerely yours, Jim LaPaso 1 Exhibit "A" The current version of this sculpture does not include the wind vane/tail as it is no longer necessary and diminishes the overall esthetic of the piece. Exhibit "A" City of Round Rock ROUND ROCK TEXAS Agenda Item Summary Agenda Number: Title: Consider executing an Agreement for the Commissioning of Artwork with Designs by LaPaso for the creation of two kinetic art sculptures. Type. City Manager Item Governing Body: City Manager Approval Agenda Date: 4/5/2019 Dept Director: Will Hampton Cost: $30,000.00 Indexes: Hotel Occupancy Tax Fund Attachments: LAF, Agreement Department: Communications and Marketing Department Text of Legislative File CM -2019-0096 Jim LaPaso will build custom kinetic art pieces for Round Rock to be displayed in the downtown area. One sculpture will go near the gazebo by the roundabout and the other will be placed in the grassy star in Prete Plaza. These two pieces will be made of stainless steel and stainless glass. Cost: $30,000 Source of Funds: HOT funds City of Round Rock Page 1 Printed on 4/4/Iof 8