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Item 4I 4I - 1 M E M O R A N D U M September 8, 2015 To: Shana K. Yelverton, City Manager From: Chris Tribble, Director of Community Services Subject: Approve contract with artist Kathleen Caricof for public art for Phase 1 of The Marq Southlake Action Requested: City Council approval of a contract with artist Kathleen Caricof in the amount of $100,000 for the sculpture, Constellation,for Phase 1 of The Marq Southlake. Background Information: The purpose of this item is for City Council to approve the proposed contract with the artist for public art at Phase 1 of The Marq Southlake. As recommended in the Public Art Master Plan, public art should be considered for all City funded capital projects. To date, public art has been installed at: DPS Headquarters DPS North Training Facility North Park Bicentennial Park At the August 18, 2015 meeting, City Council approved (7-0) selection of the art public art piece for Phase 1 of The Marq Southlake. The next step in the process to secure art for the project is the approval of a contract with the artist, Kathleen Caricof. The proposed contract is the standard Artists Agreement utilized by the City on previous public art sculpture contracts, including the artist contracts for sculptures at DPS North, DPS Headquarters and the other City roundabouts. Included in the cost of $100,000 is the installation. A copy of the proposed contract is attached to the memo for your consideration. City of Southlake Values: Shana K. Yelverton, City Manager Meeting Date September 15, 2015 4I - 2 Page 2 of 3 Upon City Council approval the artist contract will be signed and work will begin. Completion of the art work and installation is expected in February 2016. A copy of the proposed artist contract is attached for your consideration. Financial Considerations: Funding in the amount of $100,000 has been included in the project budget for the design and installation of public art at Phase 1 of The Marq Southlake as recommended in the 2030 Public Art Master Plan and Public Art Policy. Strategic Link: Selection of the public art is related to the focus area of Quality Development and meets the corporate objective to provide attractive and unique spaces for the enjoyment of personal interests.It also addresses Critical Business Outcome CB01, to implement Southlake 2030 Plan by focusing on short-term initiatives. Citizen Input/ Board Review: Per the adopted Public Art Display and/or Performance Policy, the Southlake Arts Council shall make recommendations on placement, artwork and artists to the City Council who will make any and all final determinations on the said placement and the artwork/artists. Southlake Arts Council reviewed responses and selected finalists April 28, 2015. Southlake Arts Council reviewed final concepts May 26, 2015 and requested revisions to the concepts from Kathleen Caricof. Southlake Arts Council approved (6-0) June 23, 2015 to Kathleen Caricof. Phase 1 of The Marq Southlake onAugust 18, 2015. City Council consideration of the artist contract on September 15, 2015 Legal Review: The agreement was modeled after the Public Art Contract utilized by the City and reviewed by the City Attorney. City of Southlake Values: Shana K. Yelverton, City Manager Meeting Date September 15, 2015 4I - 3 Page 3 of 3 Alternatives: Alternatives may include: Approve the contract as presented Approve the contract with input as desired Decision not to approve the contract Supporting Documents: Contract with Kathleen Caricof Recommendation: City Council approval of a contract with Kathleen Caricof in the amount of $100,000 for the sculpture, , Phase 1 of The Marq Southlake. City of Southlake Values: NATIONAL SCULPTORSÈ GUILD S C U L P T O R S È G U I L D N A T I O N A L Same Size Stars, Different Size Bases "SOUTHLAKE CONSTELLATION Stainless Steel Stars Same Size Stars, Different Size Bases Stainless Steel Stars "SOUTHLAKE CONSTELLATION Different Size Stars, Same Size Bases Stainless Steel Stars Different Size Stars, Different Size Bases Different Size Stars, Same Size Bases "SOUTHLAKE CONSTELLATION To Be Determined "SOUTHLAKE CONSTELLATION 11 - 4I 4I - 12 AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND KATHLEEN CARICOF AND THE NATIONAL SCULPTORS GUILD (ARTIST) CREATION OF SCULPTURE WITH THREE ABSTRACT STARS APPROXIMATELY TEN FEET TALL AFFIXED TO INDIVIDUAL BASES OF VARIED HEIGHTS (APPROXIMATELY TWO FEET, THREE FEET, AND FOUR FEET) FOR THE CITY OF SOUTHLAKE made as of the ____ day of September in the Year 2015 BETWEEN the City: The City of Southlake, Texas 1400 Main Street, Ste 440 Southlake, Texas 76092 Telephone 817-748-8384 Facsimile 817-748-8250 and the Artist: Kathleen Caricof c/o National 2683 North Taft Avenue Loveland CO 80538 for the following Artwork: Creation of asculpture with three abstract stars approximately ten feet tall affixed to individual bases of varied heights (approximately two feet, three feet, and four feet) for the City of Southlake to be located near the amphitheater at The Marq Southlake, 411 Unity Way. The City and the Artist agree as set forth below. THIS AGREEMENTCity of is made and entered by and between the Southlake, Texas , a home-rule municipal corporation located in Tarrant and Kathleen Caricof and the hereinafter collectively effective from and after the date as provided herein, hereinafter referred to as the WHEREAS , the City desires to engage the services of the Artist to create sculptures to be located near the amphitheater at The Marq Southlake, 411 Unity Way. WHEREAS , the Artist desires to render such services for the City upon the terms and conditions provided herein. NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS: CaricofArtist Contract Page 1 of 24 4I - 13 That for and in consideration of the covenants contained herein, and for the mutual benefits to be obtained, the parties agree as follows: CaricofArtist Contract Page 2 of 24 4I - 14 ARTICLE 1 Employment of the Artist 1.1 - The City hereby agrees to retain the Artist to perform the services set forth herein in connection with the Art. Artist agrees to perform such services in accordance with the terms and conditions of this Agreement. Design and Installation 1.2 - The parties agree that Artist shall perform the incorporated herein by reference. The Artist shall furnish all materials, labor, tools, equipment, apparatus, facilities and anything else necessary to complete the Artwork in a workmanlike manner. The parties understand and agree that the form of written change orders, may be authorized from time to time by the City. The Artwork shall be delivered at the artists cost and expense. The City will be responsible for the installation at its location, including the crane and related equipment; labor, barricades and traffic control. Kathleen Caricof and the National Sculptors Guild will act as a consultant for said installation but shall not receive an additional fee for Artist's time or travel. Design and installation of the Artwork shall comply with applicable building codes and seismic safety regulations. Size of Artwork 1.3 - The completed Artwork shall be true to the estimated measurements and constructed out of the materials described in Exhibit "A". Permits, Licenses, and Taxes - 1.4The Contractor for the project shall obtain and maintain during the term of this Agreement, all permits (including a City building permit), licenses, and certificates and pay all taxes that may be required in connection with the performance of services under this Agreement. Notwithstanding any other provision of this Agreement, neither Artist nor Guild shall be charged a fee for issuance of a City building permit or any City license. Schedule of Work 1.5 - The Artist agrees to commence work immediately upon execution of this Agreement and receipt of first payment, and to proceed diligently with said work to completion as described in the Completion Schedule/Artwork Billing and herein by reference. Artwork Installation Site 1.6 The Artwork shall be permanently affixed to the installation site, to be located near the amphitheater at The Marq Southlake, 411 Unity Way unless the City exercises its option to relocate as set forth in Section 8.2. The Artist shall design and construct the sculpture and its base so that the art installation will be structurally safe and sound and comply with current municipal building codes and seismic standards in accordance with the Uniform Building Code. CaricofArtist Contract Page 3 of 24 4I - 15 ARTICLE 2 THE CITY'S RESPONSIBILITIES Artwork Data 2.1 - The City shall furnish required information that it currently has in its possession, as expeditiously as necessary for the orderly progress of the work, and the Artist shall be entitled to rely upon the accuracy and completeness of such information. City Project Manager 2.2 - The City shall designate, when necessary, a representative authorized to act on the City's behalf with respect to the Artwork , by and through this authorized representative, shall examine the documents submitted by the Artist and render any required decisions pertaining thereto as soon as practical so as to avoid unreasonable delay in the progress of the Artist's services. Reimbursement for Travel 2.3 The Artist shall pay for all travel as it applies to this agreement. ARTICLE 3 Compensation for Artist's Services 3.1 - Artwork shall be one hundred thousand dollars and no cents ($100,000 and materials to be provided in accordance with this Agreement shall be paid in accordance with Article 3 and the Completion Schedule/Artwork Billing andten percent (10%) of the Ten thousand dollars and no cents ($10,000) shall not be paid until the Artist has completed all of the Artwork services and tasks described in heArtist will also be required to fill out the proper paperwork to become an approved vendor of the City before payments commence. Artwork Suspension 3.2 - If the Artwork is suspended or abandoned by the City in whole or in part for more than three (3) months, Artist shall be entitled to compensation for any and all work completed to the satisfaction of City in accordance with the provisions of this Agreement prior to suspension or abandonment. In the event of such suspension or abandonment by the City, Artist shall deliver to City all finished or unfinished documents, data, studies, surveys, drawings, maps, models, reports, photographs and/or any other items prepared by Artist in connection with this Agreement prior to Artist receiving final payment. If the Artwork is resumed after being suspended for more than three (3) months, the Artist's compensation shall be equitably adjusted as approved by the City. Any additional amounts paid to the Artist after the Artwork is resumed shall be agreed upon in writing by both parties before the services are performed. CaricofArtist Contract Page 4 of 24 4I - 16 ARTICLE 4 OWNERSHIP AND COPYRIGHT Ownership of Work 4.1 - The Artwork is the property of the City; The Artist retains Copyright in and to the Artwork under the Copyright Act of 1976, 17 U.S.C., Section 101, et seq. The Artist reserves the right to produce the Artwork at any size. Each edition will be clearly marked as a limited edition. If the City should desire to place the Artwork in a location that is not shown on Exhibit B, the City shall first notify the Artist consistent with Section D herein as to the new location. The City shall be entitled to copies of the plans that are prepared by the Artist in connection with the development and fabrication of the Artwork under this Agreement. The ownership of the sculpture is transferred to the City upon full payment of Artwork Ownership of Copyright - 4.2 Artist shall retain the copyright to the Artwork. Artist shall take all steps, at his own expense, to protect the copyright of the Artwork. License to City - 4.3 The Artist irrevocably licenses the City, its employees, representatives, officers and agents, the right to make photographs, two dimensional reproductions, and adaptations of the work for educational, public relations, arts promotional and other non-commercial purposes. For the purposes of this Agreement, the following, among others, are deemed to be reproductions and/or adaptations for non-commercial purposes: reproduction in exhibition catalogues, websites, books, slides, photographs, postcards, posters, and calendars; in magazines, books, art and news sections of newspapers; in general books and magazines not primarily devoted to art but of an educational, historical or critical nature; slides, videos and film strips not intended for a mass audience, and television from stations operated for educational purposes or on programs for educational and news purposes from all stations. All aforementioned work product created by Kathleen Caricof will include the words: SCULPTURED BY KATHLEEN CARICOF, NATIONAL SCULPTORS GUILD. Copyright Notice 4.4 The City undertakes to use its reasonable efforts to include in any reproductions which it makes of the Artwork a copyright notice in the following form: Copyright Kathleen Caricof or © Kathleen Caricof Representations and Warranties Regarding Copyright 4.5 The Artist not infringe the copyright, trademark, or other intangible rights of any third party. CaricofArtist Contract Page 5 of 24 4I - 17 Warranty of Title 4.6 The Artist represents and warrants that the Artwork is free and clear of all liens from any source whatsoever. ARTICLE 5 FABRICATION Specifications 5.1 Artist will create the Artwork, or cause it to be fabricated, in substantial conformity with the specifications Changes 5.2 Any significant changes to the Artwork by either Artist or as requested by City will be approved in writing by the other party. For purposes of this a change in the scope, design, color, size, or material of the Artwork, which affects cost, installation, site preparation, maintenance and concept as described in Exhibit written approval of the change in writing at the address provided in Article 14. The City will provide a written response within thirty (30) calendar days of receipt of the request. Review of the Artwork 5.3 The City will be given access to the Artwork during rea Alternatively, the City requests and shall be given photographic documentation of ess to verify each stage that triggers payment pursuant to Section 3.1 above. Notification of Fabrication Completion 5.4 Artist will notify the City in writing in the manner provided in Article 14 below when the Artwork is completed and ready for delivery. Designated representatives of the City will have the opportunity to inspect the Artwork for conformity with the design and structural requirements of this Agreement prior to delivery and to give written approval or disapproval of the Artwork within thirty (30) business days following notice from the Artist. As an alternative to the studio inspection, photographic documentation may be submitted to the City upon completion of the Artwork. Preparation of Site 5.5 Regarding installation of the Artwork, cooperation from specifications and drawings for the specific area at the site where the Artwork is to be installed. Artist is responsible for obtaining and forwarding to City design drawings and calculations for the installation of the Artwork. The drawings will illustrate the The base will be provided by the Artist. The designated city staff member will utilize these drawings and if, during installation, the Artwork is found to differ from the discrepancy and bring the Artwork into conformance with the drawings. CaricofArtist Contract Page 6 of 24 4I - 18 Warranty of Craftsmanship 5.6 The Artist warrants that the Artwork will be free of defects in workmanship and materials. In the event that any defects become apparent in the workmanship or materials within two (2) years of the completion of the Artwork by the Artist and acceptance of the Artwork by the City,Artist will remedy is period. ARTICLE 6 STORAGE Storage 6.1 -Storage of the Artwork, if necessary, is the responsibility of the Artist. ARTICLE 7 FINAL APPROVAL OF ARTWORK Final Acceptance 7.1 - City will inspect the Artwork prior to taking delivery to determine whether it conforms with all of the requirements of this Agreement. The Artist shall furnish City with a full written narrative description of the Artwork. If the City finds that any aspect of the Artwork is not in conformance with this Agreement, the City will notify Artist in writing and Artist will have a reasonable time and opportunity to address and cure any defects, requests or concerns of the City. Final acceptance shall be determined by the City in its sole and absolute discretion. The City shall notify the Artist in writing of its final acceptance of the Artwork. In no event shall the final acceptance occur more than thirty (30) days from the date of installation. Title and Final Acceptance 7.2 - Title of ownership of the Artwork shall pass to the City upon final acceptance. ARTICLE 8 INTEGRITY OF THE WORK Routine Maintenance 8.1 The Artist shall provide to City written instructions for appropriate routine maintenance and preservation of the Artwork, including moving and installation of the Artwork. Repairs 8.2 - The City undertakes to exercise reasonable care to protect, repair, and maintain the work. Artist agrees to cooperate with and advise the City without charging the City in connection with any such non-routine maintenance, including, without limitation, damage by acts of God, vandalism, conservation and/or replacement of any portion of the Artwork to the extent that the Artist is able to do so. CaricofArtist Contract Page 7 of 24 4I - 19 -routine maintenance authorized representative unless required by an emergency. Relocation of the Work 8.3 To the extent that the Artwork is capable of being relocated, the City shall have the right to do so. If feasible, the City shall attempt to consult with the Artist concerning the relocation of the Artwork prior to relocation, if any. If the Artist is not pleased with such relocation, he or she shall have the right to renounce credit for the Artwork. If Artist renounces credit for his Artwork, this would include, among other things, assignment to the City of the copyrights described herein. Credit 8.4 The City agrees, at its own expense, to prepare and install at or near the Artwork a public notice, the form and exact location of which shall be solely determined by City, giving Artist credit for the creation of the Artwork. ARTICLE 9 RISK OF LOSS/INSURANCE COVERAGE Risk of Loss 9.1 The risk of loss or damage to the Artwork shall be borne by the Artist until final acceptance, and the Artist shall take such measures as are reasonable to protect the Artwork and the materials relating hereto from loss or damage until final acceptance. Insurance 9.2 The Artist, consistent with the contractor, shall carry, and shall require any of its subcontractors to carry, at least the following insurance in such form, with such companies, and in such amounts (unless otherwise specified) as City may require: i. All States Endorsement, to the extent required by federal law and complying with the laws of the State of Texas; ii. Commercial General Liability insurance, including Blanket Contractual Liability, Broad Form Property Damage, Personal Injury, Completed Operations/Products Liability, Premises Liability, Medical Payments, General Liability Endorsements, for at least One Million Dollars ($1,000,000) Combined Single Limit Bodily Injury and Property Damage on an occurrence basis; iii. Comprehensive Automobile Liability insurance covering all owned, non-owned or hired automobiles to be used by the Contractor, with coverage for at least One Million Dollars ($1,000,000) Combined Single Limit Bodily Injury and Property Damage. CaricofArtist Contract Page 8 of 24 4I - 20 Insurance Requirements 9.3 - The Artist shall: i. Name the City, its officers, agents, representatives, and employees as additional as to all applicable coverage with the ; ii. Provide for at least thirty (30) days prior written notice to the City for cancellation, non-renewal, or material change of the insurance; and iii. Provide for a waiver of subrogation against the City for injuries, including death, property damage, or any other loss to the extent the same is covered by the proceeds of insurance. Insurance Company Qualification 9.4 All insurance companies providing the required insurance shall be authorized to transact business in Texas and Certificate of Insurance 9.5 A certificate of insurance evidencing the required insurance shall be submitted no later than the date of the execution of this Agreement. If this Agreement is renewed or extended by the City, a certificate of insurance shall also be provided to the City prior to the date the Agreement is renewed or extended. ARTICLE 10 AUDITS AND RECORDS/PROHIBITED INTEREST/VENDOR DISCLOSURE The Artist agrees that at any time during normal business hours and as often as City may deem necessary, Artist shall make available to representatives of the ith respect to all matters covered by this Agreement, and will permit such representatives of the City to audit, examine, copy and make excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement, all for a period of four (4) years from the date of final settlement of this Agreement or for such other or longer period, if any, as may be required by applicable statute or other lawful requirement. The Artist agrees that the Artist is aware of the prohibited interest requirement of D and incorporated herein by reference for all purposes, and will abide by the same. Further, a lawful representative of Artist shall execute the Affidavit. Artist understands and agrees that the existence of a prohibited interest during the term of this Agreement will render the Agreement voidable. CaricofArtist Contract Page 9 of 24 4I - 21 The Artist agrees that the Artist is further aware of the vendor disclosure requirements set forth in Chapter 176, Local Government Code, as amended, and will abide by the same. In this connection, a lawful representative of the Artist shall execute the Conflict of Interest Questionnaire, Form CIQ, attached hereto as Exhibit E ARTICLE 11 TERMINATION OF AGREEMENT/REMEDIES Artist Default 11.1Failure or refusal of the Artist to perform any act herein required, unless mutually agreed to in writing by the City and the Artist, shall constitute a default. Artist shall be given a reasonable time within which to cure said default after receiving said notice in writing. In the event of a default, in addition to any other remedy available to the City, this Agreement may be terminated by the City upon ten (10) days written notice. Such notice does not waive any other legal remedies available to the City. Conditions for Termination of Agreement Other tha 11.2 If the City deems, in its sole discretion, the Artwork design is inappropriate or unworkable for the site, or if the deadlines specified herein are not met due, in estimates indicate that the Artwork cannot be completed within the budget, the City retains the right to terminate this Agreement and is released from the obligation to enter . Artwork In the event of any termination, Artist shall deliver to City all work, entirely or partially completed that Artist has been compensated for. The Artist shall receive full payment for services satisfactorily performed (as outlined in Exhibit "B"),andas solely determined by the City. The City shall make this final payment within thirty (30) days of notifying the Artist. Remedies Cumulative 11.3 - The rights and remedies provided by this Agreement are cumulative, and the use of any one right or remedy by either party shall not preclude or waive its rights to use any or all other remedies. These rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise. ARTICLE 12 DISPUTE RESOLUTION/MEDIATION In addition to all remedies at law, the parties may resolve/mediate any controversy, claim or dispute arising out of or relating to the interpretation or performance of this Agreement, or breach thereof, by voluntary mediation to be conducted by a mutually acceptable mediator. The cost of the mediation shall be divided equally between the Artist and the City. CaricofArtist Contract Page 10 of 24 4I - 22 ARTICLE 13 INDEMNITY Indemnification - Artist agrees to defend, indemnify and hold harmless the City, all of its officers, Council members, agents and employees from and against all claims, actions, suits, demands, proceedings, costs, damages and liabilities, including reasonable attorne expenses, arising out of, connected with, or resulting from any acts or omissions of Artist or any agent, employee, subcontractor, or supplier of Artist in the execution or performance of this contract without regard to whether such persons are under the direction of City agents or employees. The Artist agrees to protect and indemnify the City, all of its officers, Council members, agents and employees, from all claims, actions, suits, demands, fees, court costs and related expenses, arising out of any alleged infringement provisions of this Article shall survive the termination or expiration of this Agreement. ARTICLE 14 NOTICES Artist agrees that all notices or communications to City permitted or required under this Agreement shall be delivered to City at the following addresses: Project Manager: Cassie Tucker City of Southlake 1400 Main Street, Ste 440 Southlake, Texas 76092 City agrees that all notices or communication to Artist permitted or required under this Agreement shall be delivered to Artist at the following address: Kathleen Caricof c/o National Sculptors Guild 2683 North Taft Avenue Loveland CO 80538 Any notice provided for under the terms of this Agreement by either party to the other shall be in writing and may be effected by registered or certified mail, return receipt requested. CaricofArtist Contract Page 11 of 24 4I - 23 All notices or communication required to be given in writing by one party or the other shall be considered as having been given to the addressee on the date such notice or communication is postmarked by the sending party. Each party may change the address to which notice may be sent to that party by giving written notice of such change to the other party in accordance with the provisions of this Agreement. ARTICLE 15 MISCELLANEOUS Complete Agreement 15.1 - This Agreement, including the exhibits hereto E constitute the entire agreement by and between the parties regarding the subject matter hereof and supersedes all prior and/or contemporaneous written and/or oral understandings. This Agreement may not be amended, supplemented, and/or modified except by written agreement duly executed by both parties. To the extent that any provision of this Agreement should conflict with the provisions of an exhibit, the provisions of this Agreement shall prevail. Assignment and Subletting 15.2 - The Artist agrees that neither this Agreement nor the work to be performed hereunder will be assigned or sublet without the prior written consent of the City. The Artist further agrees that the assignment or subletting of any portion or feature of the work or materials required in the performance of this Agreement shall not relieve the Artist of its full obligations to the City as provided by this Agreement. All such approved work performed by assignment or subletting shall be billed through Artist, and there shall be no third party billing. Successors and Assigns 15.3 - City and Artist, and their partners, assigns, successors, subcontractors, executors, officers, agents, employees, representatives, and administrators are hereby bound to the terms and conditions of this Agreement. Severability 15.4 - In the event a term, condition, or provision of this Agreement is determined to be invalid, illegal, void, unenforceable, or unlawful by a court of competent jurisdiction, then that term, condition, or provision, shall be deleted and the remainder of the Agreement shall remain in full force and effect as if such invalid, illegal, void, unenforceable or unlawful provision had never been contained herein. Venue 15.5 - This entire Agreement is performable in Tarrant County, Texas and the venue for any action related directly or indirectly, to this Agreement or in any manner connected therewith shall be Tarrant County, Texas, and this Agreement shall be construed under the laws of the State of Texas. CaricofArtist Contract Page 12 of 24 4I - 24 Execution/Consideration 15.6 - This Agreement is executed by the parties hereto without coercion or duress for a substantial consideration, the receipt and sufficiency of which is forever confessed. Authority 15.7 - The individuals executing this Agreement on behalf of the respective parties below represent to each other that all appropriate and necessary action has been taken to authorize the individual who is executing this Agreement to do so for and on behalf of the party for which his or her signature appears, that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and binding agreement on the party for whom the individual is signing this Agreement and that each individual affixing his or her signature hereto is authorized to do so, and such authorization is valid and effective on the date thereof. Waiver 15.8 - Waiver by either party of any breach of this Agreement, or the failure of either party to enforce any of the provisions of this Agreement, at any enforce and compel strict compliance. Headings 15.9 - The headings of the various sections of this Agreement are included solely for convenience of reference and are not to be full or accurate descriptions of the content thereof. Multiple Counterparts 15.10 - This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. A facsimile signature will also be deemed to constitute an original if properly executed. Sovereign Immunity 15.11 The parties agree that the City has not waived its sovereign immunity or any other legal defense by entering into and performing its obligations under this Agreement. Representations 15.12 Each signatory represents that this Agreement has been read by the party for which this Agreement is executed and that such party has had the opportunity to confer with its counsel. Miscellaneous Drafting Provisions 15.13 This Agreement shall be deemed drafted equally by all parties hereto. The language of all parts of this Agreement shall be construed as a whole according to its fair meaning, and any presumption or principle that the language herein is to be construed against any party shall not apply. No Third Party Beneficiaries 15.14 Nothing in this Agreement shall be construed to create any right in any third party not a signatory to this Agreement, and the parties do not intend to create any third party beneficiaries by entering into this Agreement CaricofArtist Contract Page 13 of 24 4I - 25 Relationship of Parties 15.15The provisions of this Agreement shall not be construed to create a partnership or joint venture between the parties. Artist is respondeat superior shall not apply between the City and the Artist. IN WITNESS WHEREOF, the parties have executed this Agreement and caused this Agreement to be effective on the latest day as reflected by the signatures below. Effective Date: _____________________________________ CITYARTIST The City of Southlake, TexasKathleenCaricof By:By: Shana YelvertonKathleenCaricof Title:City ManagerTitle:Artist National Sculptors Guild By: _________________________ Alyson Kinkade, Secretary ________________________ John Kinkade, President Approved as to Form: By:_____________________________ Taylor, Olson, Adkins, Sralla, and Elam L.L.P City Attorneys STATE OF TEXAS: CaricofArtist Contract Page 14 of 24 4I - 26 COUNTY OF TARRANT: BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THIS STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED SHANA YELVERTON, KNOWN TO ME TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO THE FOREGOING INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE EXECUTED THE SAME FOR THE PURPOSE AND CONSIDERATION EXPRESSED, AND IN THE CAPACITY THEREIN STATED. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS ____ DAY OF ________,______, 2015. ______________________________________________ NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS STATE OF __________________: COUNTY OF ______________________: BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THIS STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED SETH VANDABLEKNOWN TO ME TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO THE FOREGOING INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE/SHE EXECUTED THE SAME FOR THE PURPOSE AND CONSIDERATION EXPRESSED, AND IN THE CAPACITY THEREIN STATED. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS ____ DAY OF _____________., 2015. ______________________________________________ NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS CaricofArtist Contract Page 15 of 24 4I - 27 SCOPE OF SERVICES AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND KATHLEEN CARICOF AND THE NATIONAL SCULPTORS GUILD (ARTIST) CREATION OF SCULPTURE WITH THREE ABSTRACT STARS APPROXIMATELY TEN FEET TALL AFFIXED TO INDIVIDUAL BASES OF VARIED HEIGHTS (APPROXIMATELY TWO FEET, THREE FEET, AND FOUR FEET) FOR THE CITY OF SOUTHLAKE Sculpture The services are to be provided by Kathleen Caricof, sculptor, and the National Sculptors Guild in the creation of a sculpture per the design approved by the th Southlake City Council (August 18, 2015),KCwill furnish all design, ATHLEEN ARICOF labor and material in the fabrication of the sculptures as described in the following areas and amounts: I. Design, fabricate, ship and install the sculpture: A. Create the drawings, templates, and engineering documents for the sculptures and bases. B. Provide the material for the sculptures and bases. C. Kathleen Caricof will sculpt the above described sculptures in a 3D mockette for approval. D. Provide appropriate packing and ship the sculptures to the site. E. Install the sculptures on footings and/or pedestals built by the Artist. Footings The services are to be provided by the Kathleen Caricof. The Artist will provide all labor and material for the footings and pedestals at the Artist Note: City of Southlake is responsible to provide any and all landscape lighting. Clarifications Should there be any pedestrian barricades required during installation Delays due to others and beyond the implementation date shall constitute additional schedule extensions and appropriate general condition costs. All Artwork shall be performed during normal business hours. CaricofArtist Contract Page 16 of 24 4I - 28 Exclusions: Any and all dust, waste, and sanitary requirements. Any and all landscaping and/or landscaping repairs. Any and all licenses, fees and permits. Any and all bonds. Any and all testing and inspection costs. Any and all damage to under ground services not marked. The Artist shall create and install the Artwork in substantial conformity with the approved Design. Any significant changes in the concept, as defined in Article 5.2, must be approved by the City. It is the responsibility of the Artist to coordinate with the City, and Contractor to ensure that the site is prepared to receive the Artwork. All Artwork installation and site preparation shall be performed during normal business hours. The City will be responsible for preparation of the site, including installation of the footings and pedestals, landscape and lighting. Upon completion of the permanent installation of the Artwork, the City project manager will inspect the work and give notice of acceptance, as provided in this Agreement. CaricofArtist Contract Page 17 of 24 4I - 29 COMPLETION SCHEDULE/ARTWORK BILLING AND BUDGET AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND KATHLEEN CARICOF (ARTIST) CREATION OF SCULPTURES FOR THE CITY OF SOUTHLAKE Task Timeline Conceptual Month 1 Check #1 in the Begin engineering drawings(September 20, amount of $50,000documents. 2015 to October 20, (50%) paid upon 2015)signed contract Engineering Month 2Continue work on documents(October 20, 2015 engineering to November 15, documents. 2015) Month 3Check #2 in the Complete (November 2015)amount of $20,000 engineering (20%) paid upon documents and the City approval of begin work on engineering fabrication. documents. Month 4-5Continues work on (December-fabrication. January2015) Month 6Check #3 in the Complete steel (January 2016)amount of $20,000 stars. (20%) paid upon the City approval of City reviews stars completely for approval. fabricated steel stars. Finalacceptance by Month 6Approve work.Sculptures project manager;(February2016)delivered to City submit maintenance Check #4in amount and installed at Site worksheets;of $10,000(10%)by City under dedication.due upon installation. CaricofArtist Contract Page 18 of 24 4I - 30 MAP OF INSTALLATION SITE CaricofArtist Contract Page 19 of 24 4I - 31 AFFIDAVIT THE STATE OF _____________§ COUNTY OF _______________§ I, ____________________, Artist, make this affidavit and hereby on oath state the following: I, and/or a person or persons related to me, have the following interest in a business entity that would be peculiarly affected by the work or decision on the project (check all that apply); Ownership of 10% or more of the voting shares of the business entity. ___ Ownership of $2,500 or more of the fair market value of the business entity. ___ Funds received from the business entity exceed 10% of my income for the previous year. Real property is involved and I have an equitable or legal ownership with a fair market value of at least $2,500. ___ None of the above. A relative of mine has substantial interest in the business entity or property that would be affected by my decision of the public body of which I am a member. Other: _____________________________________________________ Upon the filing of this affidavit with the City of Southlake, Texas, I affirm that no relative of mine, in the first degree by consanguinity or affinity as defined in Chapter 573 of the Texas Government Code, is a member of the public body which took action on the agreement. Signed this ________ day of ___________________________, 2015. CaricofArtist Contract Page 20 of 24 4I - 32 ________________________________ Signature of Official/Title BEFORE ME, the undersigned authority, this day personally appeared ________________________________ and on oath stated that the facts hereinabove stated are true to the best of his/her knowledge or belief. Sworn to and subscribed before me on this ______ day of _______________________, 2015. ________________________________ Notary Public in and for The State of ___________ My commission expires: ____________ CaricofArtist Contract Page 21 of 24 4I - 33 CaricofArtist Contract Page 22 of 24 4I - 34 CaricofArtist Contract Page 23 of 24 4I - 35 CaricofArtist Contract Page 24 of 24