CM-2021-068 - 3/12/2021AGREEMENT 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 Art Fairchild (dba "Fairchild
Studio") (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 "parries" as the context may require.
RECITALS
WHEREAS, the City desire to purchase a sculpture from the Artist for the "Park in a Park"
Project at Old Settlers Park in Round Rock, Texas (the "Location"); and
WHEREAS, the sculpture will be 14' high x 21' wide x 3'deep and will be produced using A36
steel (the "Sculpture"); and
WHEREAS, the City desires to commission the creation of the Art from the Artist and the Artist
desires to create said Art; 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 I
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.
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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 NonassitInability. 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 Sculpture within the term of this Agreement in a
competent and professional manner. The Artist will pay all costs associated with the
creation of the Sculpture, 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
Sculpture as described in Exhibit "A," attached hereto and incorporated herein by
reference for all purposes.
3.3 Time Schedule. The Artist shall produce the Sculpture in approximately twelve (12)
weeks from the execution of this Agreement.
3.5 Risk of Loss. The Artist has the sole responsibility, and bears all risk, for damage or loss
of the Sculpture during fabrication. The Artist shall take such measures as are reasonably
necessary to protect the Sculpture from loss or damage during the creation, storage,
transportation, and delivery of the Sculpture.
3.6 Artist's Warranties. The Artist warrants and represents the following:
(A) Ownership. The Artist is the sole owner of the Sculpture and has full power and
authority to make this Agreement. The Sculpture do not infringe any copyright,
violate any property rights, or contain any scandalous, libelous, or unlawful
matter.
(B) Title. Immediately upon installation of the Sculpture and receipt of payment in
full by the Artist, the City shall acquire good title to the Sculpture and the
Sculpture 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.
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(C) Defects. The Sculpture 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
Sculpture or any infringement or violation by the Sculpture 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 to the Artist a total amount of Forty -Nine Thousand
Nine Hundred Ninety and No/100 Dollars ($49,990.00) for the sculpture. The payment
shall be made as follows:
(A) Upon execution of this Agreement, the City shall remit an initial payment of
Thirty -Five Thousand and No/100 Dollars ($35,000.00) to Artist.
(B) Upon completion of the Sculpture, but prior to transporting to the Location, the
City shall remit a second payment of Ten Thousand and No/100 Dollars
($10,000.00) to Artist.
(C) Upon delivery and receipt of the Sculpture at the Location, the City shall remit a
final payment of Four Thousand Nine Hundred Ninety and No/100 Dollars
($4,990.00) (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
disapproving. If the City disapproves of any stage of the Sculpture, the City shall provide
written comments reflecting the reasons for such disapproval.
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ARTICLE V
COPYRIGHT AND REPRODUCTION RIGHTS
5.1 Copyrights. The Artist retains all rights under copyright law to which the Sculpture 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 Sculpture may be
photographed by the public and media.
5.2 Artist Reproductions. The Artist shall not make, or allow to be made, any additional
duplicate editions of the Sculpture 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
Sculpture to be included in his portfolio.
5.3 Reproductions. The Artist grants the City and its assigns an irrevocable license to make
and use graphic reproductions of the Sculpture, 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
6.1 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
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.
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6.2 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 Sculpture, 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 Sculpture, 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.
6.3 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 Sculpture. 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 6.2.
(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 Sculpture, or other work, to be the completed work of
the Artist unless agreed upon by the Artist's executor, administrator or heirs.
6.4 Rh!ht of Refusal. The City has the right to refuse the Sculpture. Such refusal shall be
made in writing and signed by the City. If the City refuse the Sculpture, the Artist shall
retain the Sculpture 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.
6.5 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
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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 VII
GENERAL
7.1 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 Manager
City of Round Rock
221 East Main
Round Rock, Texas 78664
Artist:
Fairchild Studio
Attn: Art Fairchild
2345 Hardwick Street
Dallas, Texas 75208
(D) Nothing contained herein restricts the transmission of routine communications
between the parties.
7.2 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
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
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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).
7.3 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.
7.4 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.
7.5 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.
7.6 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.
7.7 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
By: � 111� (e�vyvf/J
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Date: 3
ATTEST:
By:
Sara L. White, City Clerk
FOR CITY, PPROVED AST FORM:
By:
Stephan L. heets, City Attorney
ARTIST
By:
Art Fairchild, Artist
Date: Z, ZZ 20?-A
Exhibit "A"
al RCNPStudio
2345 Hardwick Street
Dallas TX 75208
Rachel Morris
Park Development Specialist
301 West Bagdad, Suite 250
Round Rock, Texas 78664
Dear Rachel,
Thank you for this opportunity and I am very pleased to provide the following proposed
sculpture for the PIP Plaza.
The sculpture will be based on the following details as well as drawings produced for this
presentation.
Description:
The entire sculpture will be produced using A36 steel. The dimensions will be
14' High x 21' Wide x 3' Deep and provide adequate space for patrons to walk under the
structure. The surfaces will be allowed to naturally rust, creating a maintenance free
patina.
Maintenance:
The natural patina requires no maintenance. With proper preparation, the sculpture can
be painted with an industrial coating should this be considered in the future.
The sculpture and included costs will be: $49,990.00
Payment Terms:
$35,000.00 Due upon acceptance and prior to project commencement
$10,000.00 Due upon completion and prior to transporting to location
$4,990.00 Due upon delivery and installation
Turnaround:
The turnaround time required will be 12 weeks for the production of the art piece, during
which time, the foundation and installation site can be prepared.
Exhibit "A"
Foundation:
I will supply detail drawings for concrete foundation and lighting recommendations based
on your provided budget detailing. We will also provide holding patterns for hardware to
ensure accuracy and limit movement during cement placement. The drawings and holding
patterns will be available for delivery within four weeks of project commencement.
The Parks Department will be responsible for the entire cost of electrical installation,
lighting fixture units, foundational form placement, concrete material, steel reinforcement
and concrete finish.
Transportation:
Transportation and handling cost from my studio to location is included.
Installation Equipment:
Equipment with a lifting capacity of 8000 pounds and a lifting height of 20 feet with an
adequate reach will also be needed.
Arrangements and cost of lifting equipment used on site will be responsibility of the Parks
Department. I will help with exact equipment recommendations.
Installation Supervision and Crew:
I will supply a crew for the installation including lift operator. In addition to the crew I
provide, we ask that two city employees are available on site for added assistance.
Again, thank you for this opportunity and I look forward to delivering a specifically
designed art piece you will be thrilled with and enjoy for many years.
Should you find the above details and the drawings used for the conveyance of this
proposal match your vision, please sign below as acknowledgement of your acceptance and
return a copy for my records.
With warmest regards,
Z44U-I-k�
Art Fairchild
Client:
Date:
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ROUND ROCK
TEXAS
City of Round Rock
Agenda Item Summary
Agenda Number:
Title: Consider executing an Agreement for the Commissioning of Artwork with Art
Fairchild for the purchase of a sculpture for the "Park in a Park" Project at Old
Settlers Park.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 3/12/2021
Dept Director: Rick Atkins, Director
Cost: $49,990.00
Indexes: Parks Improvement & Acquisition Fund
Attachments: Art Commission Agreement Fairchild (signed), Artist Rendering, LAF - Art Fairchild
Department: Parks and Recreation Department
Text of Legislative File CM-2021-068
After an extensive search of the artists registered with the Texas Society of Sculptors, Parks and Recreation
determined that Art Fairchild was capable of creating a sculpture of the scale, quality, and aesthetics
needed to fit within the Park in a Park project in Old Settlers Park.
The vision of Park in a Park is to create a beautiful space for reflection and passive recreation, distinct from
the mostly active recreation currently offered by Old Settlers Park. This project will also include installation
of a plaza with pergola shade structures, relaxing swings, and artwork. It will also serve as a backdrop for
high -profile events such as the University Interscholastic League (UIL) State Cross Country Meet. Because of
this, this project will include aesthetic upgrades to the start/finish line which will increase spectator's
experience at these events. Finally, the Park in a Park project will serve as an example and catalyst for
future projects intended to elevate and diversify the recreation provided by the parks system.
The Park in a Park project will make use of Lower Colorado River Authority (LCRA) funding which was
received when the City sold an easement within Mayfield Park for the new high -voltage electrical lines.
Because these funds are associated with the sale of parkland, they must be used on park improvements.
Cost: $49,990.00
Source of Funds: Parks Improvement & Acquisition Fund
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