CM-2019-0162 - 5/31/2019AGREEMENT 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 Melissa Fontenette-Mitchell
(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 initiated a "Call to Artist: Mural Project" requesting proposals from artists
for a mural to be located at 216 East Main Street, Round Rock, Texas, attached as Exhibit "A"
and incorporated herein for all purposes; and
WHEREAS, based on the proposals received by the Artist (attached as Exhibit "B" and
incorporated herein for all purposes), the City desires to purchase the services of the Artist to
create a mural for the Round Rock Public Library from the Artist; and
WHEREAS, the mural will be a full fine art photography mural of 162" x 104" (the "Art"); 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 II
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 I II and in accordance with the terms of this
Agreement.
ARTICLE II
RETENTION OF ARTIST
2.1 Retention. The City does hereby retain the Artist to perform the work and services
described herein.
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 NonassignabiliIi. 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 Art within the term of this Agreement in a competent
and professional manner. The Artist will pay all costs associated with the creation of the
Art, including but not limited to labor, materials, travel expenses and other incidentals.
3.2 The Art. The work performed under this Agreement shall consist of creation of a full
fine art photography mural of 162" x 104" to be located at the Round Rock Public
Library and shall be created as shown in Exhibit "B," attached hereto and incorporated
herein by reference for all purposes.
3.3 Time Schedule. The Artist shall complete the Art in accordance with the following
timeline:
Art shall be completed prior to October 4, 2019.
3.5 Risk of Loss. The Artist has the sole responsibility, and bears all risk, for damage or loss
of the Art during creation. The Artist shall take such measures as are reasonably
necessary to protect the Art from loss or damage during the creation of the Art.
3.6 Artist's Warranties. The Artist warrants and represents the following:
(A) Ownership. The Artist is the sole owner of the Art and has full power and
authority to make this Agreement. The Art does not infringe any copyright,
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violate any property rights, or contain any scandalous, libelous, or unlawful
matter.
(B) Title. Immediately upon completion of the Art and receipt of payment in full by
the Artist, the City shall acquire good title to the Art and the Art 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 Art 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 Iicensees, agents and employees may sustain by reason of
any scandalous, libelous, or unlawful matter contained or alleged to be contained in the
Art or any infringement or violation by the Art 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 One Thousand Five Hundred
and No/100 Dollars ($1,500.00) to be paid as follows:
A) An initial payment of Seven Hundred Fifty and No/100 Dollars ($750.00) shall be
made two (2) weeks from the date of execution of this Agreement; and
B) The remaining balance of Seven Hundred Fifty and No/100 Dollars ($750.00) shall
be paid upon completion of the Art.
4.2 Material Reimbursement. The Artist may receive up to Five Hundred and No/100
Dollars ($500.00), subject to approved receipts. Additional funds may be approved by
the Library Director, if appropriate.
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4.3 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
disapproving. If the City disapproves of any stage of the Art, the City shall provide
written comments reflecting the reasons for such disapproval.
ARTICLE V
COPYRIGHT AND REPRODUCTION RIGHTS
7.1 Copyrights. The Artist retains all rights under copyright law to which the Art 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 Art 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 Art 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 Art to be
included in his portfolio.
7.3 Reproductions. The Artist grants the City and its assigns an irrevocable Iicense to make
and use graphic reproductions of the Art, 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 Art 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
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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
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 Art, 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 Art, 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 Incayacity. 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 Art. 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 tennination 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 Art, 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 Art. Such refusal shall be made in
writing and signed by the City. If the City refuse the Art, the Artist shall retain the Art
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and all funds paid prior to the refusal, if applicable. After the date of the refusal under
this paragraph, the City shall not be obligated to pay any additional funds to the Artist.
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:
Melissa Fontenette-Mitchell
PO Box 243
Cedar Park, Texas 78630
(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
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necessary by any party with respect to the enforcement of any or all of the terms of
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 1-14).
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 Counterparts. 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 ma'eure. 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.
(Signatures on the following page.)
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IN WITNESS WHEREOF, the City and the Artist have executed this Agreement on the dates
indicated below.
CITY OF ROUND ROCK, TEXAS
Laurie Hadley, ity Manager
Date: be
ATTEST:
By:
Sara L. White, City Clerk
FOR CIT PPROVED S TO FORM:
By:
Stephan Sheets, City Attorney
ARTIST
By:
Melissa l:onten -Mitchell, Artist
Date:
Exhibit "A"
ROUN10 ROCK TEXAS
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Call for Artists: Mural Project
PROJECT
Mural -216 E. Main Street
The Round Rock Public Library is issuing a call for artist proposals for a mural to be located at 216 E.
Main Street, Round Rock, Texas.
Mural Goals:
• Further encourage and promote the use of the quiet work and study area;
• Enhance the Library's image as a public art friendly facility;
• Engage and promote the work of regional and local artists;
• Encourage creative thinking, through public art;
• Honor the memory of Dr. Paul H. Jones.
Mural Details:
The mural will be approximately 162" x 104" (please see photo of wall at the end of this document). The
location is on the second floor in an area for work and study with access to resources for students,
professionals, and the public. The current location of the mural will be considered a temporary
Installation and the permanent location will be in the new library facility. The artist will be applying the
paint to panels that will be able to be moved to the new library facility in three to five years.
There is no application fee.
Proposal Deadline: April 5, 2019
BUDGET/COMPENSATION
Stipend: $1,500
An initial payment of 50% will be paid within two weeks of a signed letter of agreement and 50% will be
paid upon completion of the mural.
Material reimbursement: Artist will receive up to $500.00 in material reimbursements (with receipts and
subject to a signed letter of agreement). Artists will be asked to include a budget in proposal.
Additional funds may be approved by the Library Director if appropriate.
Completion Date: All work must be completed prior to October 4, 2019.
Exhibit "A"
ROUND ROCK TEXAS
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SUBMISSION REQUIREMENTS
Artists may submit two proposals. Each proposal should be structured and labeled using the following
headings:
Part 1: The Written Proposal
Contact information
Full Name
Address
Phone number
Email address
Illustrations of Proposed Work
Proposals must contain between one (1) and five (5) sketches or digital illustrations of the proposed
mural.
Detailed Project Description (1 page maximum, 12 pt. font)
A description of the proposed work. Please include the following descriptions:
• A literal description of the mural.
• A description of the concepts in the proposed mural.
• An artist statement describing mural experience and interest in the project.
Materials budget
Material reimbursement is available up to $500.00. The materials budget maybe increased depending
on justification and approval of the Library Director. Please submit a detailed materials budget. The City
will assist with procuring scaffolding, ladders, and other pieces of equipment necessary.
Part 2: Support Materials/Previous Work
• Proposals should be accompanied by 5 to 10 images of previous work. Files should be
submitted in a .pdf format and will be acknowledged upon receipt.
• Resume - Maximum 2 pages.
Exhibit "A"
ROUNO ROCK TEXAS
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Selection:
The artist will be selected by the Library Director and Senior Manager. They will use the following
criteria to evaluate the artist:
• Original and personal approach.
• Artistic excellence of past work.
• E=xperience with public art projects.
• Experience with site-specific artwork.
Additional eligibility requirements:
• Individual artist (no artist teams).
• Must be legally able to work in the United States.
• Local artists only. Must reside in the Austin—Round Rock MSA.
The Round Rock Public Library does not discriminate on the basis of race, sex, religion, color, national
origin, age, ancestry, disability, economic status, or gender identity.
Submissions must be received by 5:00 P.M. on Friday, April 5, 2019. Artist will be notified about the
selection by Friday, April 26, 2019.
If you have any questions or concerns, please feel free to contact Michelle Cervantes at 512-218-7010 or
email mcervantes roundrocktexas. ov.
Exhibit "B"
T1 ST �R
)Sr aphy
Melissa Fontenette-Mitchell
Round Rock Public Library Mural Proposal
PROPOSAL FOR MURAL
The opportunity to contribute to my local public library a mural that will be ideal for bridging the
community and art. I have been living in Round Rock for 25 years. I've seen the community
evolve into a place where people call home. In honoring the memory of Dr. Paul H. Jones, my
fine art photography collection celebrates a rich diversity of this unique subject matter.
My fine art photography encompasses a trinity — the vision of the photographer; the spirit of the
subject and the heart of the viewer. Only when these three things come together you have truly
captured the moment.
ILLUSTRATIONS OF PROPOSED WORK
To offer a quiet and peaceful work and study area. An area that will simply display a visual and
conceptual art vibe.
The final art area will either display a full fine art photography mural of 162"X104" or a triptych
in the same dimensions. The mural will artistically inspire the viewer to understand how art is in
our thoughts and ideas.
ARTIST STATEMENT
Having engaged subjects as diverse as the Civil Rights Movement, Women's Rights and
Community Issues. My work reproduces familiar visual and conceptual art. While I use a
variety of materials and processes in each fine artwork my methodology is consistent.
My work has been exhibited at numerous venues in Texas, Florida and New York. The Bydee
Art Gallery, The Contemporary Art Museum, Mattie Kelly Art Gallery, Heath Gallery, Open
Doors Gallery, People's Art Gallery, Round Rock Art Space and Conception Art Gallery.
The subject matter of each body of work celebrate a rich diversity to encourage young minds to
dream and follow their purpose. During research and production new areas of interest arise and
lead to the next body of work. Art remains as a strong contender of how we share our thoughts
and ideas.
Exhibit "B"
My most recent accomplishment was being selected as one the 200 Artist out of 1250
submissions to exhibit her artwork at Austin City Hall. 2017 Melissa was awarded Top 100
Achievements in Black Austin Fine Art Artist. In 2015 Melissa was awarded l' place in Digital
Photography and People's Choice Award at Texas State University. In 2014 Villager's
Newspaper Photographer of the week.
MATERIALS BUDGET
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Vd3 Panel triptychs — Masonite panels and installation - $1578.00
162"X104" - Decal fine art photography and installation - $1638.00.!
EDUCATION
1991 Bachelor of Business, Marketing, Texas Southem University, Houston, TX
EXHIBITIONS
2019 People's Gallery, Austin City Hall, Austin, TX 2019 Conception Art, Austin, TX
2018 Round Rock Art Space, RR, TX 2018 Open Doors Gallery, Cedar Park, TX
2017 Art House at The Jones Center, Austin, TX 2017 Mattie Kelly Art Gallery, Destin, FL
2016 The Contemporary Austin Museum, Austin, TX 2015 "Imagine" Texas State University, RR, TX
2014 Heath Gallery, New York, NY
2012 Bydee Art Gallery, Austin, TX
AWARDS AND DISTINCTION
2013 Oh WOW Gallery, Bastrop, TX
2018 Top Achievements in Black Austin Fine Art Artist, Austin, TX
2015 "Imagine" First Place Digital Photography and People's Choice Award, Round Rock, TX
2014 Villager's Photographer of the Week, Austin, TX
PUBLICATIONS
HOUZZ Magazine, Austin, TX Austin Villager Newspaper, Austin, TX
KVUE News, Austin, TX The Courier, North Florida, FL
National Park Service, US Department of the Interior, Washington, DC
National News ABC News, New York, NY
Winsome Expressions Notecards Collection, Atlanta, GA
TEXTILE
httys://shopvida.com/collections/melissa-fontenette-mitchell
City of Round Rock
TEXAS J?ROUNO iiOIX Agenda Item Summary
Agenda Number:
Title: Consider executing an Agreement for the Commissioning of Artwork with
Melissa Fontenette-Mitchell for a mural to be located at the Round Rock
Public Library.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 5/31/2019
Dept Director: Michelle Cervantes
Cost: $1,500.00
Indexes: Library Fund
Attachments: LAF-Library Mural 052219.pdf, Agreement for Commissioning of Artwork
052219.pdf
Department: Library Department
Text of Legislative File CM -2019-0162
The work performed under the Agreement for artwork by Melissa Fontenette-Mitchell will
consist of the creation of a full fine art photography mural of 162" x 104" to be located inside the
Round Rock Public Library.
Cost: $1,500.00
Source of Funds: Library Fund
C1fy al Round Rock Page f Printed an 513&2019