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CM-2016-1022 - 1/29/2016AGREEMENT 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"), Round Rock Area Arts Council, a Texas Nonprofit Corporation (hereinafter referred to as the "Council"), and Antonio Munoz (hereinafter referred to as the "Artist") to be effective as of the last date of due execution by all parties (the "Effective Date"). The Council and the Artist may each be referred to as "party" or '`parties" as the context may require. RECITALS WHEREAS, the City and Council desire to install two (2) custom cast bronze full-scale sculptures at Chisholm Trail Crossing Park, located at 500 Chisholm Trail Road, Round Rock, Texas (the "Park"); and WHEREAS, one of the sculptures will be of a horse and rider (the "Horse and Rider"), and the other sculpture will be of a trail drive foreman (the "Foreman") (collectively the "Sculptures"); and WHEREAS, the Council desires to commission the creation of the Sculptures from the Artist and the Artist desires to create said Sculptures, 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 III and in accordance with the terms of this Agreement. CM - 2o% .--/02 2 ARTICLE II RETENTION OF ARTIST 2.1 Retention. The Council 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 Nonassinability. The Artist may not assign any rights, benefits, or claims arising under the Agreement without the prior written consent of the City and the Council. 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 Sculptures. The work performed under this Agreement shall consist of creation of the Sculptures (the Horse and Rider and the Foreman) and installation of the Sculptures at the Park (collectively the "Work"). The Sculptures shall be created in conformance with the following: (A) Horse and Rider. The Horse and Rider shall consist of a full-scale cast bronze sculpture of a horse and its rider. The rider (the "Rider") shall be in a realistic style with all clothing, tack and other personal property depictions consistent with the 1870s time period. The Rider will be modeled after an image of Gene Beck to be provided by the Council. The Horse and Rider will include a plaque describing the sculpture and the Beck family and the content of such plaque will be provided by the Council. (B) The Foreman. The Foreman shall consist of a full-scale cast bronze sculpture of a trail drive foreman standing on a two level stone base with all clothing, tack and other personal property depictions consistent with the 1870s time period. The 2 Foreman shall hold two branding irons, the design of which will be provided by the Council. The Forman shall be depicted as interacting with the Rider. The Foreman shall include a plaque describing the sculpture and the Peckham family and the content of such plaque shall be provided by the Council. 3.3 Time Schedule. The Artist shall produce the Sculptures in accordance with the following timeline: (A) Within thirty (30) days of receipt of the Initial Deposit, the Artist shall create one- sixth (1/6) scale concept maquettes of the Sculptures (the "Maquettes") for approval of by the Council. (B) Original artwork of both Sculptures in clay shall take no more than eleven (11) months to complete from the Effective Date of this Agreement. (C) Within sixty days (60) days of approval of the Molds by the Commission, the Molds shall be completed. Bronze castings shall take between four (4) to six (6) months. (D) Within thirty (30) days of the approval of the completed Sculptures, the Artist shall deliver the Sculptures to the Park for installation. The Artist shall provide all necessary technical assistance for the installation of 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 and through installation. The Artist shall take such measures as are reasonably necessary to protect the Sculptures from loss or damage during the creation, storage, transportation, delivery and installation of the Sculptures. The Artist shall maintain a policy of insurance as required by the City and Council and sufficient to cover the risk of damage or loss of the Sculptures during creation and through installation. 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) Title. Immediately upon installation of the Sculptures and receipt of payment in full by the Artist, the Council shall acquire good title to the Sculptures and the 3 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. Upon acquiring the title, the Council shall transfer ownership of the Sculptures to the City. (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 Council, the Artist shall remedy, or pay to remedy, any loss or damage resulting from defective materials or workmanship for a period of ten (10) years from the date of installation. 3.7 Indemnification. The Artist shall defend, indemnify, and hold harmless the City, the Council and their licensees, agents, and employees against all claims, suits, costs, damages, and expenses that the City, the Council or their 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 and/or the Council 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, the Council and their licensees, agents and employees against all claims, suits, costs, damages, and expenses that the City, the Council or their licensees, agents or employees may sustain by reason of any negligent action of the Artist. ARTICLE IV COUNCIL'S OBLIGATIONS 4.1 Pavments. The Council shall pay the Artist the amount of ONE HUNDRED SIX THOUSAND, SEVEN HUNDRED THIRTY AND NO/100 DOLLARS ($106,730.00) (the "Council's Total Payment"). The Total Payment shall be made as follows: (A) Within five (5) days of the Effective Date, the Council shall remit an initial deposit of FIFTY-THREE THOUSAND, THREE HUNDRED SIXTY-FIVE HUNDRED AND NO/100 DOLLARS ($53,365.00) to Artist (the "Initial Deposit"). (B) Within five (5) days of the approval of the clay patterns by the Commission, the Council shall remit a progress payment of TWENTY-SIX THOUSAND, SIX HUNDRED EIGHTY- TWO AND 50/100 DOLLARS ($26,682.50) (the "Progress Payment") to the Artist. 4 (C) Upon installation of the Sculptures, the Council shall remit a final payment of TWENTY-SIX THOUSAND SIX HUNDRED EIGHTY-TWO AND 501100 DOLLARS ($26,682.50) (the "Final Payment") to the Artist. 4.2 Approvals. Within ten (10) days of any request for approval contemplated by this Agreement, the Council shall respond to such request in writing, either approving or disapproving. If the Council disapproves of any stage of the Sculptures, the Council shall provide written comments reflecting the reasons for such disapproval. ARTICLE V CITY'S OBLIGATIONS 5.1 Payment. The City shall pay a one-time payment to the Council upon execution of this Agreement in the amount of TWENTY-SIX THOUSAND SIX HUNDRED EIGHTY- TWO AND 501100 DOLLARS ($26,682.50) (the "City's Total Payment"). ARTICLE VI CHANGES TO SCULPTURES 6.1 Request. The Artist may request that changes be made to the design of the Sculptures following the approval of the Maquettes and the Clay Patterns. Such request must be submitted in writing to the Council prior to making the proposed changes. 6.2 Approval. The Artist must obtain written approval of the proposed changes from the Council. If the Council does not approve the proposed changes, the Council shall notify the Artist in writing and the Artist shall continue to fabricate the Sculptures in conformity with the approved Maquettes and Clay Patterns, unless otherwise directed by the Council. 6.3 Costs. Any changes to the costs of the Sculptures resulting from approved changes are the sole responsibility of the Artist. No additional payments will be allowed as a result of changes except as mutually agreed upon by the parties in writing. ARTICLE VII COPYRIGHT AND REPRODUCTION RIGHTS 7.1 Copyrights. The Artist retains all rights under copyright law to which the Sculptures, the Maquettes, the Clay Patterns and the preliminary studies, drawings, specifications, and models may be subject. The City and the Council are not responsible for any third party infringement of the Artist's copyright and are 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 and the Council. 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 Council Reproductions. The Artist grants the City, the Council and their 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 Council will contain a credit line that includes the Artist's name and the title of the Sculpture depicted. ARTICLE VIII TERMINATION 8.1 Termination for Cause. If the City and the Council determines that the Artist has failed to comply with the terms of this Agreement, the City and the Council may suspend or terminate this Agreement. Prior to suspension or termination, the City and the Council 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 and the Council may terminate or suspend the Agreement. The City and the Council reserve 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 and the Council 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 and the Council, the Artist shall remit to the City and the Council 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 and the Council 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 and/or the Council 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 and the Council may terminate the Agreement without the fifteen (15) day notice requirement, subject to re -negotiation at the City's and the Council'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 and the Council 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 and the Council may assign the Artist's obligations and services under this Agreement to another artist in its sole discretion. Alternatively, the City and the Council 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 and the Council shall not be obligated to make any additional payments under this Agreement following the death of the Artist. The City and the Council 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 and the Council has the right to refuse the Sculptures. Such refusal shall be made in writing and signed by the City and the Council. If the City and the Council refuse the Sculptures, the Artist shall retain the Sculptures and all funds paid 7 prior to the refusal. After the date of the refusal under this paragraph, the City and the Council 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 and/or the Council. Before the Artist may terminate this Agreement under this paragraph, the Artist must provide written notice of alleged breach by City and Council, and request adequate assurance of the City's and the Council's intent to remedy the alleged breach. The City and the Council 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 or the Council 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 Council: Round Rock Area Arts Council P.O. Box 5981 Round Rock, Texas 78683 Artist: Antonio Munoz 901 East Liberty Round Rock, Texas 78664 8 (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 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 inteipret, 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 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. 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. E 9.7 Number and gender. Words of any gender used in this Agreement include any other gender or neuter, and words in the singular number include the plural, and vice versa, unless the context requires otherwise. 9.8 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.] mi IN WITNESS WHEREOF, the City, the Council and the Artist have executed this Agreement on the dates indicated below. CITY OF ROUND ROCK, TEXAS ARTIST Laurie Hadley, City Manager Antonio Munoz, Artist Date: k, ATTEST: By: Sara L. White, City Clerk ! NVE.45 r, VA Stephan 4 SheetsZ, ttorney ��G1 ROUND ROCK AREA ARTS COUNCIL: Kris Whitfield, President Date:D-&—, 'v' �C /� Date: IN WITNESS WHEREOF, the City, the Council and the Artist have executed this Agreement on the dates indicated below. CITY OF ROUND ROCK, TEXAS Laurie Hadley, City Manager Date: ATTEST: Sara L. White, City Clerk FOR CITY, APPROVED AS TO FORM: Stephan L. Sheets, ttorney � UQ` �4 f' ROUND ROCK AREA ARTS COUNCIL: By: Kris Whitfield, President Date: b(L �� 11 ARTIST By: Antonio Munoz, Artist Date: n (, 9 7 o %~i City of Round Rock F� ROUND ROCK TEXAS Agenda Item Summary Agenda Number: Title: Consider executing an Agreement for the Commissioning of Artwork with Antonio Munoz for the creation and installation of two custom cast bronze sculptures at Chisholm Trail Crossing Park. Type: City Manager Item Governing Body: City Manager Approval Agenda Date: 1/29/2016 Dept Director: Rick Atkins, Director Cost: Indexes: Attachments: LAF Bronze Statutes at Chisholm.pdf, Back-up Bronze Statutes.pdf Department: Parks and Recreation Department Text of Legislative File CM -2016-1022 Consider executing an Agreement for the Commissioning of Artwork with Antonio Munoz for the creation and installation of two custom cast bronze sculptures at Chisholm Trail Crossing Park. This agreement would allow the commissioning of two bronze sculptures at Chisholm Trail Crossing Park. The artwork will complete the "Cows in the Creek" scene that was installed in 2005. The sculptures will continue to tell the story of Round Rock's history and be incorporated into Heritage Trail upon its completion. This agreement aligns with several City Strategic Goals including: - Improve City aesthetics, development and redevelopment quality, and sustainabilty - Incorporate arts and culture throughout the City Department official recommends approval of this item. City of Round Rock Page 1 Printed on 112912016