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CM-12-06-115CITY OF ROUND ROCK AGREEMENT FOR EXHIBITION OF ART IN PUBLIC PLACES WITH ROUND ROCK AREA ARTS COUNCIL THE STATE OF TEXAS CITY OF ROUND ROCK COUNTY OF WILLIAMSON COUNTY OF TRAVIS KNOW ALL BY THESE PRESENTS: That this Agreement for sourcing, securing, and arranging for exhibition of artwork on City: owned property, referred to herein as the "Agreement," is made and entered into on this the i. day of the month of atilt , 20 (2- , by and between the CITY OF ROUND ROCK, TEXAS, a home -rule municipality whose offices are located at 221 East Main Street, Round Rock, Texas 78664, referred to herein as the "City," and the ROUND ROCK AREA ARTS COUNCIL, a Texas non-profit corporation whose offices are located at the Business Center Complex, 231 East Main Street, Round Rock, Texas 78664, referred to herein as the "RRAAC." This Agreement supersedes and replaces any previous agreements between the named parties, whether oral or written, and whether or not established by custom and practice. RECITALS: WHEREAS, City desires to participate with an entity charged with sourcing, securing, and arranging for exhibition of certain privately -owned artwork on City -owned property; and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights, duties, and obligations; 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, the parties mutually agree as follows: 1. AGREEMENT BY RRAAC TO SECURE ARTWORK; AGREEMENT BY CITY TO DISPLAY ARTWORK A. RRAAC hereby agrees to source, secure, and arrange for exhibition artwork appropriate for display in and on City -owned public buildings and property, namely Round Rock City Hall, located at 221 East Main Street, Round Rock, Texas 78664. B. City hereby agrees to the display pf such referenced privately -owned artwork on its property referenced herein in Section 1, Paragraph A, such display to bb' in accordance with this Agreement. 249883/jkg 2. RRAAC's CONTRACTUAL OBLIGATIONS RRAAC expressly acknowledges its contractual obligations to do the following: A. Advise artists that publically displayed art is subject to inherent deterioration and acts of vandalism, and obtain agreement from artists that City shall not be held responsible for same. B. Obtain certification from artists that the artwork exhibited is in such condition as to withstand the ordinary strains of public display. C. Advise artists that City will afford the artwork exhibited a comparable standard of care as it gives other personal property owned by City, and obtain agreement from artists that City shall have no responsibility for insuring the artwork while same is being displayed on City - owned property. Advise artists that RRAAC and City eitc6tirage all exhibitors to carry his/her own personal property and general liability insurance. D. At the time of on-site installation of the artwork, complete a "Condition Report" which accurately documents the condition of the artwork as it arrived on site. E. Advise artists that City has the right, in its sole and unfettered discretion, to request removal of any damaged or unacceptable piece of artwork promptly. Any associated costs shall be the sole responsibility of the artist. F. Advise artists that City will assume no responsibility whatsoever for loss or damage to any artwork, frame, glass, component parts, and the like, no matter how and when sustained. 3. TRANSPORTATION AND INSTALLATION A. RRAAC shall be solely responsible for arranging with the artist for the transportation of exhibited artwork to and from the property for display, and for installation and removal of the referenced artwork to City's specifications and satisfaction. Any costs therefor shall not be the responsibility of City. RRAAC expressly acknowledges and agrees to ensure restoration of City's property on which the referenced artwork was displayed to the condition in which it existed immediately prior to display of the referenced artwork. B. City's responsibility shall be limited to coordination of the installation of the referenced artwork with the receiving City agency. 4. EFFECTIVE DATE; TERM This Agreement shall be effective when properly executed by the parties, and shall terminate on 31 Of, J , 20 t3 , unless terminated sooner pursuant to Section 6 hereof. 2 5. NO PAYMENT BY CITY TO EXHIBIT; SALE OF ARTWORK A. All parties expressly acknowledge and agree that City shall have no responsibility whatsoever for payment for the exhibited artwork or for anything associated therewith. B. Unless otherwise directed by City, no artwork, irrespective of whether it has been sold to a third party during an exhibition or before installation, may be removed from City's display area until the ending date of the exhibition in which it is displayed. RRAAC has the sole responsibility to notify City in writing if a third party is permitted to retrieve artwork at the conclusion of the exhibition or at any other time, and City shall have no responsibility whatsoever relating in any way to releasing artwork for delivery. Any artwork sold while on display under this Agreement is subject to the collection and remittance of sales tax to the State Tax Comptroller. 6. TERMINATION A. RRAAC shall cause the exhibited artwork to remain on the referenced City - owned property for the time specified herein in Section 4, but City may at any time during the referenced period direct removal of the exhibited artwork. In that event, this Agreement shall terminate. B. Upon termination of this Agreement, RRAAC shall promptly arrange with the artist or with its own forces for removal of the exhibited artwork, along with all structures necessary for and/or attendant to display, in accordance with Section 3 hereof. 7. RETURN OF ARTWORK A. Upon return of the exhibited artwork, RRAAC shall provide City with a copy of its final "Condition Report and Return of Art Receipt" to be signed by the artist prior to or at the time of removal of the referenced artwork. Such final report shall constitute proof of the return of the referenced artwork by City in acceptable condition. In the event the artist fails or refuses to collect the referenced artwork and/or fails or refuses to sign the final report within fifteen (15) days of notice that such final report is available for signature, then and in that event the condition of the referenced artwork, as noted on the final report and as returned, shall be automatically deemed to be acceptable to artist, without further action required on the part of City, and any subsequent claims made shall not be valid or honored. B. City shall have the absolute right to demand removal of the exhibited artwork upon termination of this Agreement under Section 6 hereof. In the event City is unable, after making reasonable effort, to secure removal of the referenced artwork by the artist and/or RRAAC within sixty (60) days after termination date, then and in that event City shall have the absolute right to remove the referenced artwork, place same in storage, and charge any and all associated costs including but not limited to removal fees, transportation fees, storage fees, and insurance costs, and City shall further have the right to place and enforce liens for such fees and costs. 3 C. At the conclusion of the sixty (60) day period referenced in Section 7, Paragraph B, if the artist has failed to pay all charges and satisfactorily arrange for the removal of the exhibited artwork, then and in that event ownership of the exhibited artwork shall immediately pass to City without any further requirement of payment or abandonment proceedings. D. In the event the exhibited artwork is at any time voluntarily offered as a gift to City, and if City accepts such offer of a gift, then and in that event RRAAC shall have the artist execute a valid Deed of Gift to City. At the time of recordation of such Deed of Gift, this Agreement shall terminate. 8. COPYRIGHT; REPRODUCTION RIGHTS A. As to the exhibited artwork, RRAAC shall obtain certification from the artist that the artwork submitted for exhibition is his/her original art and that he/she is the author and creator of such artwork. B. Except as otherwise delineated in Section 8 hereof, City shall not make any commercial use of the design of the referenced artwork without the artist's written consent. C. RRAAC shall secure from the artist a grant to City of an unrestricted license to use photographic reproductions of the referenced artwork in advertising brochures, media publicity, promotion of City activities, catalogues, site guides, books, and publications for noncommercial purposes. In the event of such reproductions, the parties shall use best efforts to secure credits listing the artist as the creator of the referenced artwork and owner of its copyright, and RRAAC as the entity which brokered the referenced artwork. 9. CONFLICT OF INTEREST RRAAC shall obtain certification from the artist that he/she presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with this Agreement. 10. ASSIGNMENT Without express written agreement of City, RRAAC shall not transfer or assign this Agreement or any right hereunder to any other party for the term of this Agreement. Additionally, RRAAC shall obtain agreement from the artist that he/she will not assign or transfer any rights, privileges, obligations, or other interest under this Agreement, including any claims for money due, without the prior written consent of City and RRAAC. 11. RELEASE RRAAC shall obtain agreement from the artist that he/she releases City, its officers and employees, from all liabilities, claims, and obligations whatsoever arising from or under this Agreement, and that the artist agrees not to purport to bind City to any obligation not assumed 4 herein by City unless the artist has express written authority herein to do so, and then only within the strict limits of that authority. 12. INDEMNIFICATION RRAAC shall obtain agreement from the artist that he/she indemnifies, holds harmless and agrees to defend City from all losses, damages, claims or judgments on account of any suit, judgment, execution, claim, action, or demand whatsoever arising from the artist's performance under this Agreement, as well as the performance of the artist's employees, agents, representatives and subcontractors, including payments of all attorney's fees and costs. 13. THIRD PARTY BENEFICIARIES By entering into this Agreement, the parties do not intend to create any right, title, or interest in or for the benefit of any person other than City and RRAAC. No person shall claim any right, title or interest under this Agreement or seek to enforce this Agreement as a third party beneficiary of this Agreement. 14. APPLICABLE LAW; CHOICE OF LAW; VENUE The parties shall abide by all applicable federal and state laws and regulations, and all ordinances, rules and regulations of the City of Round Rock. In any action, suit or legal dispute arising from this Agreement, RRAAC agrees that the laws of the State of Texas shall govern. The parties agree that any action or suit arising from this Agreement shall be commenced in Texas. Any action or suit commenced in the courts of the State of Texas shalllie brought in Williamson County. 15. AMENDMENTS This agreement shall not be altered, changed or modified except by an amendment in writing executed by all parties hereto. 16. ENTIRE AGREEMENT This Agreement incorporates all the agreements, covenants and understandings between the parties hereto concerning the services to be performed hereunder, and all such agreements, covenants and understandings have been merged into this Agreement. This Agreement expresses the entire Agreement and understanding between the parties with respect to its subject matter. No prior agreement or understanding, verbal or otherwise, of the parties or their agents shall be valid or enforceable unless embodied in this Agreement. 17. SEVERABILITY In case any one or more of the provisions contained in this Agreement or any application thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein and any other application thereof shall not in any way be affected or impaired thereby. 5 18. NOTICES Any notices required to be given under this Agreement shall be in writing and served by personal delivery or by mail, postage prepaid, to the parties at the following addresses: CITY OF ROUND ROCK City Manager 221 East Main Street Round Rock, TX 78664 ROUND ROCK AREA ARTS COUNCIL Board of Directors Business Center Complex 231 East Main Street Round Rock, TX 78664 IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth below. CITY OF ROUND ROCK By: Steve Norwood, i anager Date Signed: CO FOR CITY, ATTEST By: Sara L. White, City Seceta4.0.e44C, FOR CIT • PPROVED S TO FORM By: L. Sheets, City Attorney ROUND ROCK ARE A ' TS COUNCIL By:�a Cathy Date Signed: 6