R-2021-240 - 9/9/2021RESOLUTION NO. R-2021-240
WHEREAS, the City of Round Rock ("City") desires to commission bronze sculptures
depicting scenes from the early 1800s Round Rock Settlement ("Art") for the Heritage Trail West
Proj ect; and
WHEREAS, the City wishes to commission the creation of the Art from Antonio Munoz; and
WHEREAS, Section 252.022(a)(4) allows exemptions to competitive bidding requirements for
procurements for personal, professional, or planning services; and
WHEREAS, the City Council desires to enter into an agreement with Antonio Munoz, Now
Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on behalf of the City an
Agreement for the Commissioning of Artwork with Antonio Munoz, a copy of same being attached
hereto as Exhibit "A" and incorporated herein for all purposes.
The City Council hereby finds and declares that written notice of the date, hour, place and
subject of the meeting at which this Resolution was adopted was posted and that such meeting was
open to the public as required by law at all times during which this Resolution and the subject matter
hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act,
Chapter 5 S 1, Texas Government Code, as amended.
RESOLVED this 9th day of September, 2021.
/, A /
C RK1 V MO AN, Mayor
City of Rou Rock, Texas
ATTEST:
SARA L. WHITE, City Clerk
0112.20212; 00480223
EXHIBIT
«A„
AGREEMENT P0R—TjjE!QQMMISSIONING 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 Antonio Mutloz (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 sculptures from the Artist for the Heritage Trail in
Round Rock, 'texas (the "Location"); and
WHEREAS, the approximately ten (10) sculptures will be bronze and depict scenes from the
early 1800s Round Rock Settlement (the "Sculpture" or "Sculptures"); and
WHEREAS, the City desires to commission the creation of the Art from the Artist and the Artist
desires to create said Sculptures; 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 11
.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 Nonassignability. The Artist may not assign any rights, benefits, or claims arising under
the Agreement without the prior written consent of the City.
ARTICLE 1I1
ARTIST'S OBLIGATIONS
3.1 General. The Artist will create the Sculptures within the tern 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 Art• The work performed under this Agreement shall consist of creation of ten (10)
Sculptures in three (3) phases as described in Exhibit "A," attached hereto and
incorporated herein by reference for all purposes.
3.3 Time 5ihedule The Artist shall produce the Sculptures in Phase 1 in approximately
fifteen (15) months, the Sculptures in Phase 2 in approximately the next twenty (20)
months, and the Sculptures in Phase three (3) in approximately the next twenty-five (25)
months.
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.
(B) lLtLg, 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
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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. Payments shall be made to the Artist for each Sculpture as each Sculpture is
created as follows:
(A) A non-refundable deposit of one-half of the cost of a Sculpture (the "Deposit")
prior to the commencement of work on a Sculpture.
(B) A progress payment of one-fourth of the cost of a Sculpture (the "Progress
Payment") shall be due upon approval of completion of the original clay
Sculpture.
(C) Upon delivery and installation of a Sculpture at the Location, the City shall remit
the balance of the cost of the Sculpture (the "Final Payment") to the Artist.
The intention of the parties is for the Artist to create at least ten (10) Sculptures for the
total not -to -exceed amount of Four Hundred Ninety -Two Thousand and No/100
Dollars ($492,000.00) as set forth in Exhibit "A." In the event the Artist is unable to
complete ten (10) Sculptures for the not -to -exceed amount of $492,000.00, through no
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fault of the Artist, the Artist must immediately provide the City documentation regarding
changes in the cost of materials or circumstances, and the parties may adjust the Scope of
Work accordingly, including the number of Sculptures required. Regardless, of any
change in the Scope of Work, the City shall not be liable for payment to the Artist for any
more than $492,000A0 without a written Supplemental Agreement approved by the City
Manager or the governing body of the City.
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 Sculptures, the City shall
provide written comments reflecting the reasons for such disapproval.
ARTICLE V
COPYRIGHT AND REPRODUCTION RIGHTS
5.1 Copyrights. The Artist reserves the common-law copyright to all works commissioned
by the City that are created by the Artist, including all reproduction rights and the right to
claim statutory copyright. No work may be reproduced by anyone without the prior
approval of the Artist, with the exception of graphic reproductions as set forth in Section
5.2. 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.
5.2 Graphic 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 Sculptures depicted.
ARTICLE VI
TERMINATION
6.1 Termination fgr_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
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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.
6.2 Termination for Convenieneg. 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.
6.3 Deatb_Qr_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 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 Sculptures, or other work, to be the completed work of
the Artist unless agreed upon by the Artist's executor, administrator or heirs.
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6.4 Right of Refusal. The City has the right to refuse the Sculptures. Such refusal shall be
made in writing and signed by the City. I£ 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.
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
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
(13) 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:
Antonio Mufloz
901 East Liberty Road
Round Rock, Texas 78664
(d) Nothing contained herein restricts the transmission of routine communications
between the parties.
7.2 Applicable Law, Enforcement and VeUge. 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
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 congtitutes 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 inany 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 Fgrce majeure. 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.
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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.
IN WITNESS WHEREOF, the City and the Artist have executed this Agreement on the dates
indicated below.
CITY OF ROUND ROCK, TEXAS ARTIST
By: By:
Craig Morgan, Mayor Clonio Mutloz, Artist
Date:
ATTEST:
By:
Sara L. White, City Clerk
FOR CITY, APPROVED AS TO FORM:
Stephan L. Sheets, City Attorney
Date: Z
Exhibit "A"
City Of Round Rock Parks Department
Heritage Trail Bronze Statues Proposal
The following proposal is for a set of ten sculptures
depicting scenes from early 1800's Round Rock settlement.
The Project.
Ten slightly larger than life (115%) bronze statues,
Horse and rider (about 9' tall) roping
Tonkawa Native approaching (about 7' tall)
Young steer being pulled by rider (45" at shoulder)
Grazing Longhorn Cow (4.5' at shoulder)
Standing Calf (3.5' shoulder)
Standing Longhorn (5.5' at shoulder)
Sitting cowboy #1 by a camp site fire (about 5' tall)
Standing cowboy #2 by camp fire (about 7' tall)
Sitting cowboy #3 by camp fire (about 5' tall)
Fire Pit with all the period cookware
The project is to be set at the west side of the Round Rock at the new Heritage Trail Park and will consist of
ten somewhat realistic larger than life scenes that relate to each other.
The first one consists of a horse and rider in full motion roping a young steer with a lariat.
The rider is about to change direction after lassoing the steer that after feeling the pull changes direction in
full motion.
Not far from there Longhorn family is standing by: A full groan Steer watches, with head turned to its left,
intently at the noise caused by the roped steer. Next to him a cow calmly grazes unaffected by the commotion
while her calf muses by her side.
From there we see a camp fire scene composed of tluee rugged cowboys on a coffee brake. Two of them are sit-
ting facing each other liy the fire while another one stands behind them. The one on the left holds a coffee pot
on his right hand and carefully and paying attention pours. unto a mug held by the extended aim of the other
sitting man who with turned head and batty looks to the opposite side. The third cowboy stands closer to the
guy that pours and with his right hand on that man': shoulder also looks to the other side while he waves with
his left hand. At a distance a figure is approaching distracting two of the men. A Tonkawa brave that was in
the area on a rabbit hunt had seen the smoke and decides to come towards the three men offering his catch.
Antonio Mu6oz 9 512.699.4358 a 901 E Liberty, Round Rock, TX 78664 • Moonhawk62@gmail.com
Exhibit "A"
c,J iV
_--VV r, r
Exhibit "A"
Thne line.
Whole project of original artwork in clay, rubber/fiberglass molds and castings should take more or less 60
months depending on foundry schedules. Project will he divided in three phases
Phase Completion time
Phase 1 15 months
Horse/rider
Roped sheer
Tonkawa dative
Phase 2 20 months
Standing Steer
Grazing Steer
Calf
Phase 3 25 months
Cowboy #1
Cowboy #2
Cowboy #3
Fire pit
The Materials.
The statues will consist of a rigid metal armature surrounded by carved Styrofoam. The finished layer will be
sculpted on medium to hard oil based clay to provide a good amount of detail. After the clay originals are fin-
ished polyurethane rubber molds and fiberglass shells will be pulled to aid in the bronze casting. The bronze
foundry N611 then use the molds to produce wax patterns and do the reproduction in bronze of the original art.
Bronze should be finished with a dark brown, slightly bluish patina to match all the pieces from these scenes.
Original Artwork.
All artwork except for the horse and rider will be original material specific to this project. A pencil sketch
will be provided at the beginning to establish a proper direction to the project. Before full size statues may be
stauted a refined and detailed model or maquette at more or less 1.8 scale will be presented for discussion and
approval.
Antonio Muifoz * 512.699.4358 • 901 E Liberty, Round Rock, TX 78664 9 MoonhawvkMgmail.com
Exhibit "A"
Approximate Coat . The numbers.
Piece
Modeling
Casting
Total
Scene 1
Horse/ Rider
*$30,000
$43,000
$73,000
Roped Steer
*$18,000
$22,000
$40,000
Tonkawa Native
$26,000
$22,000
$48,000
Scene 2
Standing Steer
$32,000
$30,000
$62.000
Grazing Steer
$32,000
$30,000
$62,000
Calf
$28,000
$16,000
$44,000
Scene 3
Cowboy Cook #1
$26,000
$22,000
$48,000
Cowboy Cook #1
$26.000
$22,000
$48,000
Cowboy Cook #1
$26.000
$22,000
$48,000
Fire Pit
$12,000
$7,000
$19,000
TOTAL FOR THE PROJECT
$492,000
Critique and Changes.
Client or clients are allowed and encouraged to provide some input to the artwork. Once the model has
been approved there will he two other times that will allow for more input or critique of the pieces: Half way
through the sculpting process (intermediate phase of clay modeling) and at the end of the detail phase and
before the mold making phase.
Reasonable changes could me made during those times that are within the initial scope of the project.
Significant and unforeseen changes will be subject to price increases and deadline reviews. Artist will not be
liable for other major changes discussed later and not integrated to the initial proposal and contract unless
properly addres%ed_
The Opportunity.
I thank you for your consideration of my talent and dedication to aid with this project. Thank you for the oppor-
tunity of the submission of this proposal and possibly represent my community in such an honorable undertak-
ing. 1 look forward to get this project on it% way and Iielp the Round Rock Parks in anyway I can to make this
a successful venture.
Antonio Mutioz a 512.699.4358 a 901 E Liberty, Round Rock, TX 78664 a MoonhawkMgmail.com
Exhibit "A"
This agreement is made the - - 15 day of A04 rJS-r , 2021_ (year) by and between:
Name: _-_ �-N�� w M.,JL (Artist)
Address: _- q0 l j L_t_ �,�i�-1! 2ovND , 9&--K 7-&&V
Phone: S(L Ay�UM E-mail: Moor�httwK
and
Name: (City of Round Rock)
Address:
Phone: E-mail:
The parties agree as follows:
The Project: Round Rock Parks Department commission of a set of ten bronze statues for the
new development of the Heritage Trail Park in the City of Round Rock.
Copyright: Artist reserves the common-law copyright to all works commissioned by the City
Of Round Rock that are created by the Artist, including all reproduction rights and the right to
claim statutory copyright. No work may be reproduced by anyone without the prior written ap-
proval of Artist.
Project price: Parties wit: agree on price in writing prior to the commencement of artwork.
Payment Terms: A nonrefundable deposir of one half of the agreed price per piece (ten total) is
required before work commences. A progress payment of one quarterwill be due upon approval
of completion of original clay sculpture (prior to molding and casting). Final quarter payment is
due upon delivery or installation of artwork(s).
Cancellation: In the event of cancellation of this assignment, ownership of all copyrights and
the original artwork is retained by the artist and a cancellation fee consisting of all production
costs to date, plus one-third of the orig'nai production fee shall be paid to the artist.
Credit lines. The artist shall rece've a credit line with any editorial usage.
Modifications. Modifications of the agreement must be written, except those which the
contract may include, and the client shall be ob-igated to pay, fees or expenses that were orally
authorized in order to progress work promptly.
Attorney's Fees: In any proceeding to enforce any part of this contract, the aggrieved party
shall be entitled to reasonable attorneys' fees in addition to any available remedy.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the day and year
written above,
Artist `
City Of Round Rock Parks representative
Antonio Munoz • 512.699.4358 9 901 E liberty, Round Rock, Tx 78564 • Moonlhawk6209mail.com