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Item 4DCity of Southlake Values: Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork M E M O R A N D U M March 31, 2021 To: Shana K. Yelverton, City Manager From: Chris Tribble, Director of Community Services Subject: Ratify final concept and contract with artist Hunter Brown, DBA Innovative Sculpture Design LLC, in an amount not to exceed $110,000 for public art to be installed at Park Village. Action Requested: Ratify final concept and contract with artist Hunter Brown, DBA Innovative Sculpture Design LLC, in an amount not to exceed $110,000 for public art to be installed at Park Village. Background Information: In November 2020 City Council approved a Zoning Change and Site Plan revision to the Park Village development to include modifications to the fountain and landscaping, enhancements to the plaza area paving and the addition of a shade structure. These changes also included the addition of Public Art to be included in the fountain modification area. City Council and the Southlake Arts Council held a special meeting on January 27, 2021, to discuss the art to be included in the plan, the joint group selected work by artist Hunter Brown, DBA Innovative Sculpture Design LLC to create a sculpture for the project. The City Manager has conditionally approved the contract due to th e short project timeline. Financial Considerations: Funding will be provided by the Capital Improvement Fund in the amount of $110,000 Strategic Link: Ratification of the final concept is linked to the City’s Strategy Map related to Quality Development and Performance Management and Service Delivery and meets the corporate objectives of Collaborate with Select Partners to Implement Service Solutions and Invest to Provide and Maintain High Quality Public Assets. It also is connected 4D-1 Shana Yelverton, City Manager Meeting Date – April 6, 2021 Page 2 of 2 City of Southlake Values: Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork to Critical Business Outcome 05, to Improve quality of life through progressive implementation of Southlake’s Comprehensive Plan recommendations. Citizen Input/ Board Review: The selection of public art complies with provisions of the Public Art Display and/or Performance Policy and the Southlake 2030 Public Art Master Plan. Southlake Arts Council reviewed Hunter Brown’s and recommended (5-0) to City Council March 23, 2021 City Council consideration April 6, 2021 Legal Review: Not Applicable Alternatives: Approve with recommended edits Deny approval and explore other options Supporting Documents: Renderings of “Take-off” concept Contract with Hunter Brown for public art piece Recommendation: Ratify final concept and contract with artist Hunter Brown, DBA Innovative Sculpture Design LLC, in an amount not to exceed $110,000 for public art to be installed at Park Village. 4D-2 Title: Take-O Medium: 316 Grade Stainless Steel Finish: Blend brush-patterned stainless steel Scale: 12’H x 12’W x 8’D Weight: Approx 3,000lbs Base: 42”D plate with 3”H planter band extrusion - 3/4” thick plate set with threaded studs to be set by artist during installation. - plate and bolt attachments to be covered by reflective fire glass Location: Fountain at Park Village Shopping Center. Southlake, TX Prepared for: Park Village Project/ Southlake Public Art Prepared by: Innovative Sculpture Design LLC, Hunter Brown March 8, 2021 4D-3 Description 4’D Base 3’H 12’ 12’ - Piece is attached to 3/4” anchor plate - anchor plate is 42“ Diameter ( 3” buer to edges of base) - plate banded with 3” strip - plate to be anchored with threaded studs to base - bolt attachments then covered with re glass and lled to the top of the 3” strip. * other options available It is Brown’s mission to create designs that push the limits of form, structure, and space. Although the overall aesthetic takes precedent throught the design process, Brown strives to create art pieces that have underlying iconography and deeper meaning. Take-O’ is a modern stainless steel sculpture design, composed of twisting and turning forms that ascend upward, intersecting and jutting through space. Although, the design is abstract in nature, the movement of the forms exhibit an aeronautical feel. Each form twist and tapers accross the sky in similar fashion to flight maneuvering. The cantalievered balance, delicate joineries, and assymetrical composition gives the piece a gravity defying feel and pushes the aviation theme. The relationship and orientation of each form creates drastically diernt compositions from dierent perspectives, making the piece transformative. The scale of the piece is large but not overpowering for the space. The piece extrudes into the sky, which pushes creates dramatic eect by using the skyline as it’s canvas. Take-O will have great presence in the space, and will become a place-making/ iconic piece of art for the community. 4D-4 4D-5 4D-6 Brush Pattern Finish Samples 4D-7 Viusalization of piece from corner, based on site proportions at 12’H with a 3’H base. Placement Reference *note scale and orientation are not accurate in this viusalization 4D-8 - Proposal submission March 2021 - Confirm design details - Sign artist contract - Order materials upon receipt of first payment - Begin fabrication April 2021 - Submit structural drawings April 2021 - Complete fabrication June 2021 - Install piece June 2021 - Installation date to be determined Azuria Fire Glass Reference 4D-9 Lighting We recommend Color Kinetics lighting by Philips to illuminate the piece. The Blast luminaires set the standard for flood lighting - delivering high quality light and uncompromising performance with exceptional reliability. The Blast Powercore lighting boosts the output to meet the most demanding white and color lighting applications. The fixtures have precise color, remote monitoring, and programming capabilities that open doors for innovative light show programming. Sample 4D-10 Materials 4’x10’ 316 grade stainless steel sheet 14 $ 660.00 $ 9,240.00 1/2” stainless round 40 $ 27.00 $ 1,080.00 2“ schedule 10 stainless tube 2 $ 440.00 $ 880.00 3/4” steel plate 42“D cnc cut 1 $ 1,000.00 $ 1,000.00 8% tax $ 496.00 Consumables/Production Cost Welding Consumables $ 2,000.00 Finish and Abrasives $ 3,500.00 Passivation Wash $ 300.00 ProtectaClear Coating $ 250.00 Scissor Lift Rental $ 1,000.00 Telehandler Lift Rental $ 800.00 Studio Fee $ 5,000.00 Insurance $ 1,500.00 Engineer Fee $ 3,500.00 Labor Production Labor 1000 hrs $ 70.00 $70,000.00 Tranport / Install Transport $ 1,500.00 Crane Rental and Opperator $ 1,500.00 Reach Lift rental $ 800.00 Travel $ 500.00 Lodge $ 500.00 Install Fee $ 1,000.00 Total: $106,346.00 4D-11 The piece is constructed in 11 gauge high chromium stainless steel (316 grade). The steel sheet is welded around a structural form constructed in tube and solid round stainless rods. This structure is designed to withstand high wind load and storms. The skin material/exterior material has high chromium content which is a chemical compostion created for protecting the surfaces from oxidation in the most harsh environments. The piece is coated in a Everbrite Permaclear Coating which also serves as a protective coating and maintains the materials high luster, keeping the piece looking clean with minimal maintenance. Maintenance includes washing the piece similar to washing a car. (If pressure washing the psi should be less than 3000psi with a non agressive tip.) Water and mild soap can be used to wash the sculpture as needed. Re-application of the Protectaclear coating is reccomended every 8-10 years. The coating has a self leveling property and is easy to re-apply. Innovative Sculpture Design will do the first re-application free of charge. Footing drawings and details will be provided once the base design is confirmed. At that time I will contract a structural engineer to provide spec drawings. The piece itself will be mounted on a 3/4” steel plate that will be anchored to the footing using threaded studs. The plate and attachment is then covered with reflective fire glass. Note: other base options available. We fabricate and complete all stages of the fabrication process at Innovative Sculpture Studio. The 8000sq. ft. studio has high structural beams and plenty of space to produce monumental works in house. Our fabrication assistants are trained in all stages of the process, from fabricating structural armatures to applying the final finish. The base construction will be contracted and completed prior to the completion of the fabrication process by the purchasing party. Once the fabrication is complete we will transport the assembled work as one piece using contracted carrier. The piece will be shrink-wrapped and secured with supports prior to transport. Installation will be completed in 1 day using a crane to pick and set the piece on the footing. A lane closure for the day will likely be neccessary. Base plate will be secured to the footing using threaded studs per engineering drawing specs. The studs will be set by Innovative Sculpture Design during install. This will allow flexibiltiy with the orientation of the piece. This design is my design and will be unique to this location. There will be no duplications or reproductions. Maintenance Project Plan Footing 4D-12 FABRICATION AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND HUNTER BROWN, DBA INNOVATIVE SCULPTURE DESIGN (ARTIST) CREATION OF A SCULPTURE FOR THE CITY OF SOUTHLAKE made as of the 26th day of March in the Year 2021 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: Hunter Brown d.b.a. Innovative Sculpture Design 4200 Hoerner Road Little Rock, AR 72209 Telephone 870-550-3619 Email innovativesculpturedesign@gmail.com for the following Artwork: Creation of a stainless-steel sculpture, “Take-Off”, composed of twisting and turning forms that ascend upward, intersecting and jutting through space for the City of Southlake. The piece has the approximate dimensions of 12’ht x 8’d x 12’w and will have a blend brush-patterned finish to be mounted on a 4’ diameter footing as a part of the Park Village development for an amount not to exceed $107,000. The City and the Artist agree as set forth below. THIS AGREEMENT is made and entered by and between the City of Southlake, Texas, a home-rule municipal corporation located in Tarrant and Denton County Texas, hereinafter referred to as “City”, and Hunter Brown, hereinafter collectively referred to as “Artist”, to be effective from and after the date as provided herein, hereinafter referred to as the “Agreement”; WHEREAS, the City desires to engage the services of the Artist to create a sculpture, “Take-Off,” approximately 12’ feet tall, depicting an abstract piece with an aeronautical feel for the City of Southlake to be mounted on a 4’ foot diameter footing in Park Village for an amount not to exceed $107,000. WHEREAS, the Artist desires to render such services for the City upon the terms and conditions provided herein. 4D-13 NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS: That for and in consideration of the covenants contained herein, and for the mutual benefits to be obtained, the parties agree as follows: ARTICLE 1 ARTIST’S SERVICES 1.1 Employment of the Artist - 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. 1.2 Design and Installation - The parties agree that Artist shall perform the services set forth and described in Exhibit “A”, which is attached and 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 deviations or modifications to the scope of services described in Exhibit “A”, in the form of written change orders, may be authorized from time to time by the City. The Artwork shall be delivered and installed by the Artist. Installation will be scheduled according to the timeline set forth in Exhibit “B.” Any changes to the installation date must occur with at least a forty -five (45) day notice and be agreed upon in writing by both the City and the Artist. The City will be responsible for the installation at its location, including barricades and traffic control. Hunter Brown 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. 1.3 Size of Artwork - The completed Artwork shall be true to the estimated measurements and constructed out of the materials described in Exhibit "A". 1.4 Permits, Licenses, and Taxes - The 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, Artist shall not be charged a fee for issuance of a City building permit or any City license. 1.5 Schedule of Work - 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 Budget attached as Exhibit “B” and incorporated herein by reference. 4D-14 1.6 Artwork Installation Site – The Artwork shall be permanently affixed to the installation site, located in the Park Village development unless the City exercises its option to relocate as set forth in Section 8.2. The Artist shall design 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. ARTICLE 2 THE CITY'S RESPONSIBILITIES 2.1 Artwork Data - 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. 2.2 City Project Manager - The City shall designate, when necessary, a representative authorized to act on the City's behalf with respect to the Artwork (the “Project Manager”). The City, 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. 2.3 Reimbursement for Travel – The Artist shall pay for all travel as it applies to this agreement. ARTICLE 3 ARTIST’S COMPENSATION 3.1 Compensation for Artist's Services - As described in “Article 1, Artist's Services”, compensation for this Artwork shall be one hundred-seven thousand dollars and no cents ($107,000) (“Artist’s Fee”) and will cover all services to be rendered and materials to be provided in accordance with this Agreement. The Artist’s Fee shall be paid in accordance with Article 3 and the Completion Schedule/Artwork Billing and Budget as set forth in Exhibit “B“. The final ten percent (10%) of the Artist’s Fee, or eleven thousand dollars and no cents ($11,000) shall not be paid until the Artist has completed all of the Artwork services and tasks described in Exhibits “A” and “B”. The Artist will also be required to fill out the proper paperwork to become an approved vendor of the City before payments commence. 3.2 Artwork Suspension - 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 susp ension or abandonment. In the event of such suspension or abandonment by the City, 4D-15 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. ARTICLE 4 OWNERSHIP AND COPYRIGHT 4.1 Ownership of Work - 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 described in Exhibits “A” and “B”. 4.2 Ownership of Copyright - Artist shall retain the copyright to the Artwork. Artist shall take all steps, at his own expense, to protect the copyright of the Artwork. 4.3 License to City - 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 the Artist will include the words: SCULPTURED BY HUNTER BROWN. 4.4 Copyright Notice – 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: 4D-16 Copyright Hunter Brown or © Hunter Brown 4.5 Representations and Warranties Regarding Copyright – The Artist represents and warrants that the Artwork is an original creation of Artist’s and will not infringe the copyright, trademark, or other intangible rights of any third party. 4.6 Warranty of Title – The Artist represents and warrants that the Artwork is free and clear of all liens from any source whatsoever. ARTICLE 5 FABRICATION 5.1 Specifications – Artist will create the Artwork, or cause it to be fabricated, in substantial conformity with the specifications set forth in Exhibit “A”. 5.2 Changes – 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 Agreement, a “significant change” will mean any change, including but not limited to, 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 “A”. If Artist wishes to make a significant change to the Artwork, he must request 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. 5.3 Review of the Artwork – The City will be given access to the Artwork during reasonable business hours at Artist’s or fabricator’s studio in order to review the Artwork and Artist’s or fabricator’s progress with fabrication of the Artwork. Alternatively, the City requests and shall be given photographic documentation of Artist’s progress to verify each stage that triggers payment pursuant to Section 3.1 above. 5.4 Notification of Fabrication Completion – 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. 5.5 Preparation of Site – Regarding installation of the Artwork, cooperation from the City’s designated staff and contractor is required. City will provide Artist with the specifications and drawings for the specific area at the site where the Artwork is to be 4D-17 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 Artwork’s support system, including without limitation, connection to the base. The designated city staff member will utilize these drawings and if, during installation, the Artwork is found to differ from the specifications noted in the drawings, it will be the Artist’s responsibility to remedy the discrepancy and bring the Artwork into conformance with the drawings. 5.6 Warranty of Craftsmanship – 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 any defects at Artist’s sole cost and expense during this period. ARTICLE 6 STORAGE 6.1 Storage - Storage of the Artwork is the responsibility of the Artist. ARTICLE 7 FINAL APPROVAL OF ARTWORK 7.1 Final Acceptance - 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. 7.2 Title and Final Acceptance - Title of ownership of the Artwork shall pass to the City upon final acceptance. ARTICLE 8 INTEGRITY OF THE WORK 8.1 Routine Maintenance – The Artist shall provide to City written instructions for appropriate routine maintenance and preservation of the Artwork, including moving and installation of the Artwork. 8.2 Repairs - The City undertakes to exercise reasonable care to protect, repair, and maintain the work. Artist agrees to cooperate with and advise the 4D-18 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. During Artist’s lifetime, the City will not undertake any non-routine maintenance on the Artwork without attempting to consult with the Artist or the Artist’s authorized representative unless required by an emergency. 8.3 Relocation of the Work – 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 any such relocation; however, the Artist’s approval is not required for the 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 Ar tist renounces credit for his Artwork, this would include, among other things, assignment to the City of the copyrights described herein. 8.4 Credit – 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 9.1 Risk of Loss – 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. 9.2 Insurance – The Artist, consistent with the Artist’s status as an independent 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. Worker’s Compensation and Employer’s Liability insurance, including 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, Interest of Employees as additional insured’s, and Broad Form General Liability Endorsements, for at least One Million Dollars ($1,000,000) Combined Single Limit Bodily Injury and Property Damage on an occurrence basis; 4D-19 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. 9.3 Insurance Requirements - The Artist shall: i. Name the City, its officers, agents, representatives, and employees as additional insured’s as to all applicable coverage with the exception of workers’ compensation insurance; 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. 9.4 Insurance Company Qualification – All insurance companies providing the required insurance shall be authorized to transact business in Texas and rated at least “A” by AM Best or other equivalent rating service. 9.5 Certificate of Insurance – 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 City for examination all of the Artist’s records with 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 the City Charter, which is repeated on the Affidavit attached hereto as Exhibit “D” and incorporated herein by reference for all purposes, and will abide by the 4D-20 same. Further, a lawful representative of Artist shall execute the Affidavit. Artist understands and agrees that the existence of a prohibite d interest during the term of this Agreement will render the Agreement voidable. 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” and incorporated herein for all purposes. ARTICLE 11 TERMINATION OF AGREEMENT/REMEDIES 11.1 Artist Default – Failure 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 whi ch 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. 11.2 Conditions for Termination of Agreement Other than Artist’s Default – If the City deems, in its sole discretion, the Artwork design is inappropriate or unworkable for the site, or if the deadlines specifi ed herein are not met due, in whole or in part, to the Artist’s actions and/or omissions, or if cost 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 into fabrication and installation of the Artist’s design concept for the 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"), and as solely determined by the City. The City shall make this final payment within thirty (30) days of notifying the Artist. 11.3 Remedies Cumulative - 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 4D-21 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. 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 attorneys’ fees, court costs and related 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, proceedings, costs, damages and liabilities, including reasonable attorneys’ fees, court costs and related expenses, arising out of any alleged infringement of patents or copyrights arising from the Artist’s performance under the Artist’s Bid or this Agreement, including attorneys’ fees and court costs. The 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: Vicky Schiber City of Southlake 285 Shady Oaks 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: Hunter Brown d.b.a. Innovative Sculpture Design 4200 Hoerner Road Little Rock, AR 72209 4D-22 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. 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 15.1 Complete Agreement - This Agreement, including the exhibits hereto labeled “A” through “E”, all of which are incorporated herein for all purposes, 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. 15.2 Assignment and Subletting - 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. 15.3 Successors and Assigns - 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. 15.4 Severability - 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. 15.5 Venue - This entire Agreement is performable in Tarrant County, Texas and the venue for any action related directly or indirectly, to this Agreement or in 4D-23 any manner connected therewith shall be Tarrant County, Texas, and this Agreement shall be construed under the laws of the State of Texas. 15.6 Execution/Consideration - 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. 15.7 Authority - 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. 15.8 Waiver - 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 time, shall not in any way affect, limit or waive such party’s right thereafter to enforce and compel strict compliance. 15.9 Headings - 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. 15.10 Multiple Counterparts - 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. 15.11 Sovereign Immunity – 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. 15.12 Representations – 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. 15.13 Miscellaneous Drafting Provisions – This Agreement shall be deemed drafted equally by all parties hereto. The language of all p arts 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. 15.14 No Third Party Beneficiaries – Nothing in this Agreement shall be construed to create any right in any third party not a signatory to this Agreement, 4D-24 March 29, 2021 4D-25 4D-26 EXHIBIT “A” SCOPE OF SERVICES AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND HUNTER BROWN OF HUNTER BROWN (ARTIST) CREATION OF A SCULPTURE COMPOSED OF TWISTING AND TURNING FORMS THAT ASCEND UPWARD, INTERSECTING AND JUTTING THROUGH SPACE FOR THE CITY OF SOUTHLAKE. THE PIECE HAS THE APPROXIMATE DIMENSIONS OF 12’HT X 8’D X 12’W AND WILL HAVE A BLEND BRUSH-PATTERNED FINISH TO BE MOUNTED ON A 4’ DIAMETER FOOTING AS A PART OF THE PARK VILLAGE DEVELOPMENT. Sculpture The services are to be provided by Hunter Brown, sculptor, in the creation of a sculpture per the design approved by the Southlake City Council (April 6th, 2021), Hunter Brown will furnish all design, 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 and base: A. Provide the material for the sculpture and base in its entirety. B. Hunter Brown will sculpt the above described sculpture in accordance with the approved drawings. C. Provide appropriate packing and ship the sculpture to the site. D. Consult with the city on installation of the sculpture. E. Provide engineer-stamped drawings of the sculptures and base. The Artist shall create and oversee the installation of 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. Installation These services are to be provided by the City of Southlake in the installation of the sculpture: A. City of Southlake is responsible to provide any and all landscape lighting. 4D-27 B. The City will be responsible for the installation at its location, including barricades and traffic control. 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. Clarifications • Delays due to others and beyond the implementation date shall constitute additional schedule extensions and appropriate general condition costs. • All artwork installation shall be performed during normal working hours. 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. ARTIST PROPOSAL: Prepared for: Park Village Project/ Southlake Public Art Prepared by: Innovative Sculpture Design LLC, Hunter Brown Project Details: Title: Take-Off Medium: 316 Grade Stainless Steel Finish: Blend brush-patterned stainless steel Scale: 12’H x 12’W x 8’D Weight: Approx 3,000lbs Base: 42”D plate with 3”H planter band extrusion - 3/4” thick plate set with threaded studs to be set by artist during installation. - plate and bolt attachments to be covered by reflective fire glass Location: Fountain at Park Village Shopping Center. Southlake, TX Description It is Brown’s mission to create designs that push the limits of form, structure, and space. Although the overall aesthetic takes precedent through the design process, Brown strives to create art pieces that have underlying iconography and deeper meaning. 4D-28 Take-Off’ is a modern stainless steel sculpture design, composed of twisting and turning forms that ascend upward, intersecting and jutting through space. Although, the design is abstract in nature, the movement of the forms exhibit an aeronautical feel. Each form twist and tapers across the sky in similar fashion to flight maneuvering. The cantilevered balance, delicate joineries, and asymmetrical composition gives the piece a gravity defying feel and pushes the aviation theme. The relationship and orientation of each form creates drastically different compositions from different perspectives, making the piece transformative. The scale of the piece is large but not overpowering for the space. The piece extrudes into the sky, which pushes creates dramatic effect by using the skyline as it’s canvas. Take- Off will have great presence in the space and will become a place-making/ iconic piece of art for the community. 4D-29 4D-30 4D-31 EXHIBIT “B” COMPLETION SCHEDULE/ARTWORK BILLING AND BUDGET AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND HUNTER BROWN (ARTIST) CREATION OF SCULPTURES FOR THE CITY OF SOUTHLAKE Task Timeline City Artist Conceptual design. Month 1 (April 2021) Contract signed Check #1 in the amount of $53,500 due (50%) paid upon approval of concept design. Provides final conceptual design. Fabrication of sculpture completed. Photos of progress submitted Months 2 - 3 (May 2021 – June 2021) Photos submitted of completed fabrication stage of project. Check #2 in amount of $42,800 (40%) paid upon approval. Completes figures, incorporating any feedback from City Council. City reviews figures for approval Begins foundry work, if approved by City. Supervises casting process at foundry. City approves final sculpture. Final acceptance by project manager; submit maintenance worksheets; dedication. Month 3 (June 2021) Approve work. Check #3 in amount of $10,700 (10%) due upon completion of installation. Sculpture delivered to City and installed at Site by City under Artist’s supervision. 4D-32 EXHIBIT “C” MAP OF PARK VILLAGE 4D-33 4D-34 4D-35 4D-36 EXHIBIT “E” 4D-37 4D-38 4D-39