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2010-12-14 SLAC Packet M E M O R A N D U M December 1, 2010 TO: Southlake Arts Council FROM: Jim Blagg, Assistant City Manager SUBJECT: Agenda Item Comments for the regular Southlake Arts Council Meeting – Tuesday, December 14, 2010 at 6:00 p.m. Please note the meeting will begin at 6:00 p.m., in Town Hall – 3rd Floor, Room 3A. A light dinner will be served about 5:45 p.m. If possible, could you please notify staff if you will not be able to attend the meeting at 817.748.8384 or kmcgeath@ci.southlake.tx.us? Thank you! 1. Agenda Item No. 2A – 2C. Administrative Comments: Reports --- Updates will be provided about the APEX Arts League, Arts Council Northeast and the Community Band. 2. Agenda Item No. 3A. Consent: Approval of the minutes from the October 26, 2010 Southlake Arts Council meeting – If you have corrections to the meeting minutes, please make it part of the motion for consideration. 3. Agenda Item No. 4. PUBLIC FORUM: This is the public's opportunity to address the Arts Council about non-agenda items. During this proceeding it is important that the council not deliberate (discuss among yourselves) or take action on any item brought up at this time. The Arts Councils' options during this topic are 1) to listen; 2) ask questions and respond to the presenter only; 3) request staff to look into the issue and report back to the Arts Council; and/or 4) request that the chair put the item on a future agenda for the Arts Council to discuss or consider. 4. Agenda Item No. 5A. Consider: Recommendation on 2011 Community Services Agreement with APEX Arts League – The purpose of this item is to seek a recommendation to City Council on the community service agreement with APEX Arts League with a funding request of $5,000. There is an additional $3,000 for a back to school concert – making the total payment of $8,000. The agreement was reviewed with APEX. Copy of the Agreement is in the packet. 5. Agenda Item No. 5B. Consider: Recommendation on 2011 Community Services Agreement with Arts Council Northeast – The purpose of this item is to receive the Arts Council’s recommendation to City Council on the proposed 2011 Community Services Agreement with Arts Council Northeast. Funding in the amount of $22,000 is requested in the 2011 Agreement to provide Masterworks programs for the community. Funding is provided in the Hotel Occupancy Tax fund. Arts Council Southlake Arts Council Meeting Date – December 14, 2010 Page 2 of 2 Northeast has reviewed the proposed agreement. A copy of the Agreement is in the packet. Agenda Item No. 5C. Consider: Recommendation on 2011 Community Services Agreement with Southlake Community Band – The purpose of this item is to receive the Arts Council’s recommendation to City Council on the proposed 2011 Community Services Agreement with Southlake Community Band. Funding in the amount of $7,000 is requested in the 2011. A copy of the agreement is in your packet. Agenda Item No. 5D. Consider: Recommendation on Artist Contracts for Roundabout Art – The purpose of this item is to receive the Arts Council’s recommendation to City Council on the artist contracts for the three artists who will be providing sculptures for four (4) roundabouts. Agenda Item No. 5E. Consider: Recommendation on Display of Public Art Policy – This item was discussed at the previous Arts Council meeting in October when staff distributed draft documents for the Arts Council’s review and comments: 1) Art Exhibit Agreement, 2) Display of Public Art Policy, and 3) Public Art Display and/or Performance Facility and Property Use Permit. Your packet contains the latest revised documents for your review and recommendation. 6. Agenda Item No. 6A. Discussion: Display of CISD Art in the Lobby in Town Hall in January and February and Art Displays Related to Art In The Square – This item is a discussion and an opportunity to review when the CISD art program wants to display visual art in Town Hall. We appreciate your commitment and service to the City. JB STAFF CONTACT INFORMATION: Telephone – (817) 748-8203 Facsimile – (817) 748-8027 400 North White Chapel Blvd., Southlake, Texas 76092-6242 Jim Blagg, Assistant City Manager, 817-748-8601, jblagg@ci.southlake.tx.us Kerry McGeath, Deputy Director of Community Services, 817-748-8384, kmcgeath@ci.southlake.tx.us Cynthia Pfledderer, Librarian, 817-748-8246, cpfledderer@ci.southlake.tx.us Nancy Roper, Administrative Secretary, 817-748-8249; nroper@ci.southlake.tx.us Linda Carpenter-Elgin, Administrative Secretary, 817-748-8184; lcarpenter@ci.southlake.tx.us OFFICIAL MEETING MINUTES APPROVED BY MEMBERS OF THE SOUTHLAKE ARTS COUNCIL Southlake Arts Council Meeting Minutes – October 26, 2010 Page 1 of 3 SOUTHLAKE ARTS COUNCIL MEETING 1 Southlake Town Hall – 4A 2 1400 Main Street 3 Southlake, Texas 76092 4 5 October 26, 2010 6 M I N U T E S 7 8 Arts Council Members Present – Leslie Bartlett, Vice Chair; Jonathan Calvert, Chair; 9 Deborah Frazier; Merlene Ingraham; Carol Knox; Terri Messing; Leslie Ann Walker. 10 11 Arts Council Members Absent – Karen Chidiac. 12 13 Staff Members Present – Jim Blagg, Assistant City Manager; Kerry McGeath, Deputy 14 Director of Community Services. 15 16 Others Present – Pam Muller, City Council Member. 17 18 REGULAR SESSION: 19 20 Agenda Item No. 1- Call to Order: 21 22 Chair Calvert called the meeting to order at 6:02 p.m. 23 24 REPORTS: 25 26 Agenda Item No. 2A - Administrative Comments – Oath of Office: 27 28 Mr. McGeath administered the Oath of Office to Ms. Knox. Ms. Walker took the Oath at 29 an earlier date. 30 31 Agenda Item No. 2B - Administrative Comments – Update from APEX . 32 33 Ms. Messing brought some fliers to show the Arts Council. There are two major 34 programs in the upcoming weeks. The first is a choral program with six high school 35 choirs. The other program is the Southlake – Fort Worth Symphony string players 36 playing at Watermere. 37 38 The September event with Radio City Music Hall was exceptional and the fourth annual 39 meeting is next week. 40 41 Agenda Item No. 2C - Administrative Comments – Update from ArtsNet. 42 43 The presenter was not able to come. 44 45 46 OFFICIAL MEETING MINUTES APPROVED BY MEMBERS OF THE SOUTHLAKE ARTS COUNCIL Southlake Arts Council Meeting Minutes – October 26, 2010 Page 2 of 3 Agenda Item No. 2D - Administrative Comments – Update on Roundabout Art Project. 1 2 Mr. Blagg and the artists will meet with the City Council tomorrow afternoon to have a 3 conversation about the kind of art wanted in the roundabouts. The City Council will also 4 have an opportunity to see more of their work. The artists will be asked to have a 5 concept piece available for the December 14, 2010 Arts Council meeting. 6 7 The trees in the roundabouts are place holders until the art is ready. They will be 8 relocated once the art is available. The City Council has agreed to pay the trip 9 expenses for the artists. Each artist will be offered up to $1500 for the concept piece. 10 11 The Library bought 2 extra copies of The Artist’s Guide to Public Art so the Arts Council 12 can have a reference. 13 14 Agenda Item No. 2E - Administrative Comments – Update on Art Master Plan. 15 16 An RFQ was answered by one vendor. The scope of services will be addressed next 17 week after the budget is finalized. It is hoped that the budget will be in place to show 18 the Arts Council at the December meeting. Once the Arts Council approves the budget, 19 it will be sent to the City Council for approval in January, 2011. 20 21 Mr. McGeath commented on the author’s night event last week sponsored by the 22 Library. He described the cultural passes that were procured by the Library for check 23 out. 24 25 There were only three responses to the survey. 26 27 CONSENT AGENDA: 28 29 Agenda Item No. 3A - Approval of the minutes from the August 24, 2010 Southlake Arts 30 Council meeting. 31 32 A motion was made and seconded to approve the minutes. They were unanimously 33 approved. 34 35 REGULAR AGENDA: 36 37 Agenda Item No. 4 - Public Forum: 38 39 The Public Forum was opened at 6:19 pm and as there was no one to speak was 40 closed at 6:19 pm. 41 42 43 44 45 46 OFFICIAL MEETING MINUTES APPROVED BY MEMBERS OF THE SOUTHLAKE ARTS COUNCIL Southlake Arts Council Meeting Minutes – October 26, 2010 Page 3 of 3 CONSIDER AGENDA: 1 2 Agenda Item No. 5A – Consider. 3 4 There were no items for this agenda. 5 6 DISCUSSION AGENDA: 7 8 Agenda Item No. 6A – Display of Art in Public Buildings. 9 10 Mr. McGeath distributed drafts of three documents entitled: 11 12 Art exhibit agreement by and between the City of Southlake, Texas and (name of artist) 13 14 Display of Public Art policy 15 16 Southlake Arts Council – Public Art display and/or performance Facility and Property 17 Use permit 18 19 They will be reviewed by the Arts Council and comments brought to the December 20 meeting. The form(s) will be completed by the artist, reviewed by the Arts Council and 21 sent to the City Council for approval. Smaller projects and city departments will only 22 need to get the approval of the Arts Council. 23 24 There was some discussion about and suggestions for the documents. 25 26 Agenda Item No. 7 - Adjournment 27 28 The next meeting is Tuesday, December 13, 2010 at 6 pm. This meeting was adjourned 29 at 6:40 p.m. 30 31 32 33 34 Jon Calvert, Chair 35 36 Attest: 37 38 39 40 41 Kerry McGeath, Deputy Director of Community Services 42 43 A RECORDING OF THE MEETING IS AVAILABLE FOR REVIEW IN THE OFFICE OF THE CITY SECRETARY. 44 45 5A - 1 M E M O R A N D U M December 1, 2010 TO: Southlake Arts Council FROM: Jim Blagg, Assistant City Manager - Operations SUBJECT: Recommendation on 2011 Community Services Agreement with Apex Arts League Action Requested: Southlake Arts Council recommendation on the 2011 Community Services Agreement with the Apex Arts League. Background Information: The Apex Arts League is a non-profit agency seeking to enhance community awareness, participation, and appreciation of the arts in the north central region of the Dallas/Fort Worth Metroplex. One of their main objectives is to provide performing and visual arts in the region. The Apex Arts League seeks to secure funding, support, and partnerships through local organizations, community groups, and private businesses. In general, the proposed 2011 Community Services Apex Arts League scope of services includes: • APEX staff contact person to serve as a liaison between APEX and the City • Enhance the arts in the community and work toward establishing a home for the arts • Schedule eleven (11) high quality professional programs or events featuring local talent free to the public between January 1, 2011 and September 30, 2011 • Provide and promote at least three (3) educational programs in the arts for all ages • Provide and promote at least three (3) programs or events with a community arts component including but not limited to the display of public art Appendix Section A, part B describes the City’s obligations for the agreement. Section B of the Appendix describes the performance and quality measures the City will use to determine whether APEX has met the performance measures. A copy of the proposed 2011 Community Services Agreement with Apex Arts League is included in your packet. Southlake Arts Council Meeting Date – December 14, 2010 Page 2 of 2 5A - 2 Financial Considerations: As part of the proposed agreement, total funding in the amount of $8,000 is allocated for Apex Arts League for 2011. $5,000 to be dispersed annually on November 1 of each year the agreement is active and a payment of $3,000 made to pay for a back to school performance. Funding is available in the approved FY 2011 general fund budget for this proposed expenditure. Strategic Link: This item is linked to the City’s Strategy Map related to the focus area of Quality Development and Partnerships and Volunteerism and meets the corporate objectives to Provide Attractive and Unique Spaces for Enjoyment of Personal Interests, Collaborate with Select Partners to Implement Service Solutions, Provide High Quality Customer Service and Actively Promote Opportunities for Partnerships and Volunteer Involvement. Citizen Input/ Board Review: Southlake Arts Council review and recommendation December 14, 2010. City Council to consider January 4, 2011 Legal Review: This agreement was modeled after the standard community services agreement utilized by the City. Alternatives: Alternatives may include the following: • Arts Council recommendation to approve proposed agreement as presented • Arts Council recommendation to approve proposed agreement with input as desired • Arts Council recommendation not to approve the proposed agreement Supporting Documents: Proposed 2011 Agreement for Community Services with Apex Arts League. Recommendation: Southlake Arts Council recommendation to City Council to approve the 2011 Community Services Agreement with the Apex Arts League with funding support of $8,000. 2011 AGREEMENT BETWEEN CITY OF SOUTHLAKE AND APEX ARTS LEAGUE STATE OF TEXAS § § COUNTY OF TARRANT § THIS AGREEMENT is entered into by and between the City of Southlake, Texas, a home rule municipal corporation located in Tarrant County and Denton County, Texas, acting by and through its duly authorized Mayor (hereinafter referred to as “City”), Apex Arts League, a non-profit corporation of Texas, acting by and through its duly authorized Chairman (hereinafter referred to as “AAL”), an organization exempt from taxation under Section 501(c)(3) of the Internal Revenue Code. WHEREAS, the mission of AAL is to enhance appreciation and participation in music and dance, as well as literary, visual and theatrical arts in our region and to forward efforts of creating a regional arts center, a home for community arts, a stage for professional performances and an educational and civic center for all; and WHEREAS, City and AAL desire to enter into a Renewal Agreement whereby AAL will continue to provide for the creation a regional focal point, enhance community awareness and appreciation, and promote education instruction for all ages for the arts, a meeting facility for civic and community groups, create a home for area arts groups, and provide a venue for all performing and visual arts in the region. NOW, THEREFORE, City and AAL, in consideration of the mutual undertakings hereunder set forth, do hereby covenant and agree as follows: SECTION 1 SCOPE OF SERVICES A. AAL shall provide the services as outlined in the attached Appendix, Section A. B. City shall provide services as outlined in the attached Appendix, Section A. 2011 Community Services Agreement with Apex Arts League Approved by City Council (date) Page 2 of 7 SECTION 2 CITY AND AAL STAFF CONTACT S A. AAL and the City shall both provide staff liaison’s as outlined in the attached Appendix, Section A. SECTION 3 GOVERNANCE A. AAL shall be solely governed by its board of directors, who shall meet in accordance with the bylaws and articles of incorporation. The time, date, place and agenda of these board meetings shall be the responsibility of the AAL board of directors. SECTION 4 CONSIDERATION In recognition that the City elected to support the AAL and their promotion of the arts rather than provide such service, City agrees to an annual payment to be paid to AAL in the amount of $5,000 to be dispersed annually on November 1 of each year. A payment of $3,000 will also be made to pay for a back to school performance. Total paid to APEX is $8,000. Final payment amount is subject to City Council budget authorization. Payment by the City shall be applied by AAL as described in the attached Appendix, Section A. SECTION 5 REPORTING A. AAL shall generate and provide to Kerry McGeath of the City, quarterly reports regarding the performance measures outlined in the attached Appendix, Section B. SECTION 6 INSURANCE AND INDEMNIFICATION A. AAL AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND OTHER CONSULTANTS), ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR 2011 Community Services Agreement with Apex Arts League Approved by City Council (date) Page 3 of 7 INDIRECTLY, THE NEGLIGENT ACT OR OMISSION OF APEX, ITS OFFICERS, EMPLOYEES AND AGENTS, IN THE PERFORMANCE OF SERVICES UNDER THIS AGREEMENT. APEX SHALL NOT BE REQUIRED TO INDEMNIFY THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FOR ANY DAMAGES OR LIABILITY FOUND BY A COURT TO HAVE ARISEN FROM THE NEGLIGENT ACT OR OMISSION OF THE CITY, ITS OFFICERS, AGENTS OR EMPLOYEES, EXCEPT TO THE EXTENT OF ANY APPLICABLE INSURANCE COVERAGES. SECTION 7 INDEPENDENT CONTRACTOR In performing the services hereunder, AAL is acting as an independent contractor, and shall not be deemed an employee, agent or partner of the City. City shall have no power to direct or supervise its activities in carrying out its responsibilities under this Agreement. Neither party shall have the authority to make binding representations or agreements on behalf of the other. SECTION 8 TERM OF AGREEMENT AND REVIEW OF PERFORMANCE 1. The term of this agreement shall be for a period beginning October 1, 2010 and ending September 30, 2011. This agreement may be renewed for up to three successive one-year periods beginning on October 1 and ending on September 30 of each year upon written agreement by both parties and annual budget approval by the Southlake City Council. 2. At the end of the term, the City will undertake an annual review of the performance based upon performance and quality measures outlined in the attached Appendix, Section B. 3. Notwithstanding any provision herein to the contrary, either party may terminate this Agreement upon 30 days written notice to the other. Upon termination, or if AAL ceases to provide transportation services, AAL shall return to the City any unexpended funds paid pursuant to this Agreement. SECTION 9 NO WAIVER OF GOVERNMENTAL IMMUNITY Notwithstanding any provision of this Agreement to the contrary, nothing contained in this agreement shall be construed to limit or waive any governmental or sovereign immunity of the City, or any immunity applicable to its officers, agents, servants or employees. To the extent there may be a waiver of immunity under state law, the remedies available to enforce this agreement are limited to mandamus, specific performance or injunctive relief. All other 2011 Community Services Agreement with Apex Arts League Approved by City Council (date) Page 4 of 7 remedies, including suits for damages and recovery of attorney’s fees are specifically waived by both parties. SECTION 10 CITY OF SOUTHLAKE – STRATEGIC LINK The City has adopted a Strategic Management System to improve the organization’s ability to define and execute its strategy. Effective strategic management systems provide the mechanism to link the mission, strategy, department goals, citizen perceptions, and service delivery efforts in a continuous feedback loop. AAL, its mission and the services outlined in the attached Appendix, link to the City’s strategy through the following strategic objectives: • Promote opportunities for partnerships and volunteer involvement • Collaborate with select partners to implement service solutions SECTION 11 CITY OF SOUTHLAKE VALUES The City has adopted values that are the fundamental principles that guide how officials, staff, and employees of the City conduct themselves in pursuit of the mission and vision. All business conducted with the City shall adhere to the City's organizational values as described below:  Integrity: Being worthy of the public's trust in all things. We deal honestly and respectfully with each other and the public at all times.  Innovation: Valuing progressive thinking, creativity, flexibility and adaptability in service delivery.  Accountability: Taking personal responsibility for our actions or inaction while putting the interests of the taxpayer first.  Commitment to Excellence: Behaving responsively in our delivery of service to the public. Our work is characterized by its quality and by the diligence with which it is carried out. We proactively seek to solve problems in advance.  Teamwork: Recognizing the importance of working together to meet our citizen's needs, communicating clearly, sharing resources and information freely. The values set forth in Section 11 are goals to which City officials, staff and employees are expected to adhere to in activities concerning this Agreement. While perceived failure to adhere to, comply with, or take action consistent with these values should be reported to an appropriate City official, staff member, or 2011 Community Services Agreement with Apex Arts League Approved by City Council (date) Page 5 of 7 employee, such action or failure to act shall not be considered a breach of this Agreement. SECTON 12 MISCELLANEOUS This Agreement sets forth all the agreements between the parties and no modification shall be effective unless reduced to writing and signed by the part to be changed therewith. This document may be executed in duplicate originals. IN WITNESS WHEREOF the City and AAL have executed this Agreement as of this _______day of ____________________, 201__. _________________________ Mayor, City of Southlake _________________________ Chairman, Apex Arts League Approved as to form and legality: Attorney at Law 2011 Community Services Agreement with Apex Arts League Approved by City Council (date) Page 6 of 7 2011 AGREEMENT BETWEEN CITY OF SOUTHLAKE AND APEX ARTS LEAGUE APPENDIX SECTION A SCOPE OF SERVICES A. In return for payment described in Section 4 of this Agreement, APEX shall provide the following services: 1. APEX staff contact person to serve as a liaison between the APEX and the City: a. Name: Terri Messing b. Title: President c. Phone: 817 251 4300 d. Email Address: terrimessing@verizon.net 2. Enhance the arts in the community and will work toward establishing a home for the arts. 3. Schedule 11 high quality professional programs or events featuring local talent free to the public between January 1, 2011 and September 30, 2011; 4. Provide and promote at least three (3) educational programs in the arts for all ages. 5. Provide and promote at least three (3) programs or events with a community arts component including but not limited to the display of public art. B. In addition to payment described in Section 4 of this agreement, City shall: 1. Provide a staff contact person to serve as a liaison between City and APEX. The City liaison shall be apprised by APEX of all APEX. board meetings, APEX shall forward a copy of the agenda for each meeting prior to any scheduled meetings, and the City liaison may participate with the APEX board at all scheduled meetings. a. Name: Kerry McGeath b. Title: Deputy Director of Community Services c. Phone: 817 748 8384 d. Email Address: kmcgeath@ci.southlake.tx.us 2011 Community Services Agreement with Apex Arts League Approved by City Council (date) Page 7 of 7 2. Provide a presence on the www.cityofsouthlake.com which is limited to: a. One information page which includes organization name, mission, contact information and link to organization website; and b. ---insert event info language---; and 3. Consider posting information contained in press releases on www.MySouthlakeNews.com and/or www.CityofSouthlake.com. Any and all information in such press releases will be subject to review and possible revision prior to posting. 4. Publish in the quarterly editions of the Southlake Scene organization information to include organization name, mission, contact information and link to organization website. 5. Provide access to the City’s logo for use by APEX. Such use is subject to review and approval by the City’s Community Relations Officer. 6. Provide at no cost to APEX in accordance with current policies and guidelines, the use of City facilities for events and meetings directly related to APEX business. Requests for use of City facilities shall follow current reservation procedures as outlined in the Facility Use Policy. SECTION B PERFORMANCE AND QUALITY MEASURES A. In evaluating APEX performance pursuant to Section 8 of this agreement, the City will determine whether APEX has met the following performance measures: 1. The APEX organization will track attendance at programs/events they provide throughout the year and provide that information to city staff at the end of each calendar quarter. 2. APEX will provide an assement of value that their program created in the community for the period of the contract at the end of each calendar year. 3. Apex will track attendance and participation in the creative arts educational programming it provides the community and will provide that information to city staff at the end of the calendar quarter. 4. Apex will track attendance and participation in the programs/events it provides the community with a community arts program and will provide that information to city staff at the end of the calendar quarter. 5B - 1 M E M O R A N D U M December 1, 2010 TO: Southlake Arts Council FROM: Jim Blagg, Assistant City Manager - Operations SUBJECT: Recommendation on 2011 Community Services Agreement with Arts Council Northeast Action Requested: Arts Council recommendation on the 2011 Community Services Agreement with Arts Council Northeast (formerly known as ARTSNET) Background Information: Arts Council Northeast supports every aspect of artistic expression - from painting and sculpture, to music, theatre, dance, and writing. Arts Council Northeast accomplishes its mission by providing grants, information, and assistance to artists, arts organizations and the general public. Arts Council Northeast continues to look for innovative ways to encourage, support and facilitate artistic cultural opportunities within the communities of North Tarrant County. Arts Council Northeast, in conjunction with the cities of North Tarrant County, presents visual and performing arts concerts which are free and open to the public. Local, national and international artists, as well as new emerging artists, have provided tremendous programs for patrons of varying tastes. Southlake has participated in the ARTSNET Masterworks Music Series for over eleven years and they have been well attended as part of our annual concert series in Town Square. In general, the scope of services proposed in the 2011 Community Services Agreement with Arts Council Northeast include: • Staff liaison between Arts Council Northeast and City • Perform twelve (12) concert events free to the public between January 1, 2011 and September 30, 2011 Southlake Arts Council Meeting Date – December 14, 2010 Page 2 of 3 5B - 2 • Provide citizens access and opportunity to participate in the arts, support community cultural events and provide educational programs to both children and adults in the community at no charge Appendix Section A, part B describes the City’s obligations for the agreement. Section B describes the performance and quality measures the City will use to evaluate performance measures of the agreement with Arts Council Northeast. A copy of the proposed 2011 Community Services Agreement with Arts Council Northeast is included in your packet. Financial Considerations: As part of the proposed agreement, funding in the amount of $22,000 is requested and available in the Hotel Occupancy Tax to support these programs through Arts Council Northeast. Citizen Input/ Board Review: Southlake Arts Council review and recommendation December 14, 2010. City Council will consider the Agreement at their January 4, 2011 meeting. Legal Review: The proposed agreement was modeled after the standard community services agreement utilized by the City. Alternatives: Alternatives may include the following: • Arts Council recommendation to approve proposed agreement as presented • Arts Council recommendation to approve proposed agreement with input as desired • Arts Council recommendation not to approve the proposed agreement Supporting Documents: Supporting documents include:  Proposed 2011 Agreement for Community Services with Arts Council Northeast Southlake Arts Council Meeting Date – December 14, 2010 Page 3 of 3 5B - 3 Recommendation: Southlake Arts Council recommendation to City Council to approve the 2011 Community Services Agreement with Arts Council Northeast with funding support of $22,000. 2011 AGREEMENT BETWEEN CITY OF SOUTHLAKE AND Arts Council Northeast STATE OF TEXAS § § COUNTY OF TARRANT § THIS AGREEMENT is entered into by and between the City of Southlake, Texas, a home rule municipal corporation located in Tarrant County and Denton County, Texas, acting by and through its duly authorized Mayor (hereinafter referred to as “City”), and the Arts Council Northeast, a non-profit corporation of Texas, acting by and through its duly authorized Executive Director (hereinafter referred to as “ARTS COUNCIL NORTHEAST”), an organization exempt from taxation under Section 501(c)(3) of the Internal Revenue Code. WHEREAS, the mission of ARTS COUNCIL NORTHEAST is to encourage, support and facilitate artistic cultural opportunities within the communities of North Tarrant County; and WHEREAS, City and ARTS COUNCIL NORTHEAST desire to enter into a Renewal Agreement whereby ARTS COUNCIL NORTHEAST will continue to provide assistance for art related projects and programs, youth summer art programs, art classes, citizen access to the arts, community cultural events, and educational programs while also offering free concerts and concert scheduling; NOW, THEREFORE, City and ARTS COUNCIL NORTHEAST, in consideration of the mutual undertakings hereunder set forth, do hereby covenant and agree as follows: SECTION 1 SCOPE OF SERVICES A. ARTS COUNCIL NORTHEAST shall provide the services as outlined in the attached Appendix, Section A. B. City shall provide services as outlined in the attached Appendix, Section A. 2011 Community Services Agreement with Arts Council Northeast Approved by City Council (date) Page 2 of 7 SECTION 2 CITY AND ARTS COUNCIL NORTHEAST STAFF CONTACT S A. ARTS COUNCIL NORTHEAST and the City shall both provide staff liaison’s as outlined in the attached Appendix, Section A. SECTION 3 GOVERNANCE A. ARTS COUNCIL NORTHEAST shall be solely governed by its board of directors, who shall meet in accordance with the bylaws and articles of incorporation. The time, date, place and agenda of these board meetings shall be the responsibility of the ARTS COUNCIL NORTHEAST board of directors. SECTION 4 CONSIDERATION In recognition that the City elected to support the ARTS COUNCIL NORTHEAST and their art initiatives rather than provide such service, City agrees to an annual payment to be paid to ARTS COUNCIL NORTHEAST in the amount of $22,000 to be dispersed annually on November 1 of each year. Final payment amount is subject to City Council budget authorization. Payment by the City shall be applied by ARTS COUNCIL NORTHEAST as described in the attached Appendix, Section A. SECTION 5 REPORTING A. ARTS COUNCIL NORTHEAST shall generate and provide to Kerry McGeath of the City, quarterly reports regarding the performance measures outlined in the attached Appendix, Section B. SECTION 6 INSURANCE AND INDEMNIFICATION A. ARTS COUNCIL NORTHEAST AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND OTHER CONSULTANTS), ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE NEGLIGENT 2011 Community Services Agreement with Arts Council Northeast Approved by City Council (date) Page 3 of 7 ACT OR OMISSION OF ARTS COUNCIL NORTHEAST, ITS OFFICERS, EMPLOYEES AND AGENTS, IN THE PERFORMANCE OF SERVICES UNDER THIS AGREEMENT. ARTS COUNCIL NORTHEAST SHALL NOT BE REQUIRED TO INDEMNIFY THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FOR ANY DAMAGES OR LIABILITY FOUND BY A COURT TO HAVE ARISEN FROM THE NEGLIGENT ACT OR OMISSION OF THE CITY, ITS OFFICERS, AGENTS OR EMPLOYEES, EXCEPT TO THE EXTENT OF ANY APPLICABLE INSURANCE COVERAGES. SECTION 7 INDEPENDENT CONTRACTOR In performing the services hereunder, ARTS COUNCIL NORTHEAST is acting as an independent contractor, and shall not be deemed an employee, agent or partner of the City. City shall have no power to direct or supervise its activities in carrying out its responsibilities under this Agreement. Neither party shall have the authority to make binding representations or agreements on behalf of the other. SECTION 8 TERM OF AGREEMENT AND REVIEW OF PERFORMANCE 1. The term of this agreement shall be for a period beginning October 1, 2010 and ending September 30, 2011. This agreement may be renewed for up to three successive one-year periods beginning on October 1 and ending on September 30 of each year upon written agreement by both parties and annual budget approval by the Southlake City Council. 2. At the end of the term, the City will undertake an annual review of the performance based upon performance and quality measures outlined in the attached Appendix, Section B. 3. Notwithstanding any provision herein to the contrary, either party may terminate this Agreement upon 30 days written notice to the other. Upon termination, or if ARTS COUNCIL NORTHEAST ceases to provide transportation services, ARTS COUNCIL NORTHEAST shall return to the City any unexpended funds paid pursuant to this Agreement. SECTION 9 NO WAIVER OF GOVERNMENTAL IMMUNITY Notwithstanding any provision of this Agreement to the contrary, nothing contained in this agreement shall be construed to limit or waive any governmental or sovereign immunity of the City, or any immunity applicable to its officers, agents, servants or employees. To the extent there may be a waiver of immunity under state law, the remedies available to enforce this agreement are limited to mandamus, specific performance or injunctive relief. All other 2011 Community Services Agreement with Arts Council Northeast Approved by City Council (date) Page 4 of 7 remedies, including suits for damages and recovery of attorney’s fees are specifically waived by both parties. SECTION 10 CITY OF SOUTHLAKE – STRATEGIC LINK The City has adopted a Strategic Management System to improve the organization’s ability to define and execute its strategy. Effective strategic management systems provide the mechanism to link the mission, strategy, department goals, citizen perceptions, and service delivery efforts in a continuous feedback loop. Arts Council Northeast, its mission and the services outlined in the attached Appendix, link to the City’s strategy through the following strategic objectives: • Promote opportunities for partnerships and volunteer involvement • Collaborate with select partners to implement service solutions SECTION 11 CITY OF SOUTHLAKE VALUES The City has adopted values that are the fundamental principles that guide how officials, staff, and employees of the City conduct themselves in pursuit of the mission and vision. All business conducted with the City shall adhere to the City's organizational values as described below:  Integrity: Being worthy of the public's trust in all things. We deal honestly and respectfully with each other and the public at all times.  Innovation: Valuing progressive thinking, creativity, flexibility and adaptability in service delivery.  Accountability: Taking personal responsibility for our actions or inaction while putting the interests of the taxpayer first.  Commitment to Excellence: Behaving responsively in our delivery of service to the public. Our work is characterized by its quality and by the diligence with which it is carried out. We proactively seek to solve problems in advance.  Teamwork: Recognizing the importance of working together to meet our citizen's needs, communicating clearly, sharing resources and information freely. The values set forth in Section 11 are goals to which City officials, staff and employees are expected to adhere to in activities concerning this Agreement. While perceived failure to adhere to, comply with, or take action consistent with these values should be reported to an appropriate City official, staff member, or 2011 Community Services Agreement with Arts Council Northeast Approved by City Council (date) Page 5 of 7 employee, such action or failure to act shall not be considered a breach of this Agreement. SECTON 12 MISCELLANEOUS This Agreement sets forth all the agreements between the parties and no modification shall be effective unless reduced to writing and signed by the part to be changed therewith. This document may be executed in duplicate originals. IN WITNESS WHEREOF the City and ARTS COUNCIL NORTHEAST have executed this Agreement as of this _______ day of ____________________, 201__. _________________________ Mayor, City of Southlake _________________________ Executive Director, ARTS COUNCIL NORTHEAST Approved as to form and legality: Attorney at Law 2011 Community Services Agreement with Arts Council Northeast Approved by City Council (date) Page 6 of 7 2011 AGREEMENT BETWEEN CITY OF SOUTHLAKE AND ARTS COUNCIL NORTHEAST APPENDIX SECTION A SCOPE OF SERVICES A. In return for payment described in Section 4 of this Agreement, ARTS COUNCIL NORTHEAST shall provide the following services: 1. ARTS COUNCIL NORTHEAST staff contact person to serve as a liaison between the ARTS COUNCIL NORTHEAST and the City: a. Name: Cathy Hernandez b. Title: President c. Phone: 817 283 3406 d. Email Address: chernandez@artscouncilnortheast.org 2. Perform twelve (12) concert events free to the public between January 1, 2011 and September 30, 2011. Proposed events include are not limited to the Annual MasterWorks Southlake Music Series in Town Square. Community Services staff will work with Arts Council Northeast to develop who will perform and the Southlake Arts Council will review the proposed line up. 3. Scheduling of concerts and make up concerts, if necessary, will be by agreement of the City Community Services Director and Arts Council Northeast. 4. Provide citizens access and opportunity to participate in the arts support community cultural events, and provide educational programs to both children and adults in the community at no charge B. In addition to payment described in Section 4 of this agreement, City shall: 1. Provide a staff contact person to serve as a liaison between City and ARTS COUNCIL NORTHEAST The City liaison shall be apprised by ARTS COUNCIL NORTHEAST of all ARTS COUNCIL NORTHEAST board meetings, ARTS COUNCIL NORTHEAST shall forward a copy of the agenda for each meeting prior to any scheduled meetings, and the City liaison may participate with the ARTS COUNCIL NORTHEAST board at all scheduled meetings. a. Name: Kerry McGeath b. Title: Deputy Director Community Services c. Phone: 817 748 8384 2011 Community Services Agreement with Arts Council Northeast Approved by City Council (date) Page 7 of 7 d. Email Address: kmcgeath@ci.southlake.tx.us 2. Provide a presence on the www.cityofsouthlake.com which is limited to: a. One information page which includes organization name, mission, contact information and link to organization website; and b. ---insert event info language---; 3. Consider posting information contained in press releases on www.MySouthlakeNews.com and/or www.CityofSouthlake.com. Any and all information in such press releases will be subject to review and possible revision prior to posting. 4. Publish in the quarterly editions of the Southlake Scene organization information to include organization name, mission, contact information and link to organization website. 5. Provide access to the City’s logo for use ARTS COUNCIL NORTHEAST. Such use is subject to review and approval by the City’s Community Relations Officer. 6. Provide at no cost to ARTS COUNCIL NORTHEAST in accordance with current policies and guidelines, the use of City facilities for events and meetings directly related to ARTS COUNCIL NORTHEAST business. Requests for use of City facilities shall follow current reservation procedures as outlined in the Facility Use Policy. SECTION B PERFORMANCE AND QUALITY MEASURES A. In evaluating ARTS COUNCIL NORTHEAST performance pursuant to Section 8 of this agreement, the City will determine whether ARTS COUNCIL NORTHEAST has met the following performance measures: 1. The Arts Council Northeast organization will track attendance at concerts they provide throughout the year and provide that information to city staff at the end of each calendar quarter. 2. Arts Council Northeast will provide an assement of value that their program created in the community for the period of the contract at the end of each calendar year. 3. Arts Council Northeast will track attendance and participation in the arts programming it provides the community and will provide that information to city staff at the end of the calendar quarter. 5C- 1 M E M O R A N D U M December 9, 2010 TO: Southlake Arts Council FROM: Jim Blagg, Assistant City Manager - Operations SUBJECT: Recommendation on 2011 Community Services Agreement with the Southlake Community Band Action Requested: Southlake Arts Council recommendation on the 2011 Community Services Agreement with the Southlake Community Band. Background Information: Southlake Community Band first received funding from the City in 1995. Their request for financial support stemmed from the increasing size of the Southlake Community Band, as well as the growing number of area performances for the public. Over the past several years the Southlake Community Band has added to their concert schedule in order to meet the demands of a growing community, the on-going growth of their jazz band activities, and an increased number of City sponsored special events. The events in which the Southlake Community Band performs include the Stars and Stripes Celebration, Home for the Holidays and various concerts throughout the year. Their purpose is to provide education and entertainment in an effort to increase local appreciation of the arts. In general, the scope of services proposed in the 2011 Community Services Agreement for Southlake Community Band include: • Liaison between the Band and City • Perform at least eight (8) concerts events free to the public between January 1, 2011 and September 30, 2011 • Provide creative arts program for music appreciation which is open to the public • Present an update to the Southlake Arts council quarterly or as needed Southlake Arts Council Meeting Date – December 14, 2010 Page 2 of 3 5C - 2 Appendix Section A, part B describes the City’s obligations for the agreement. Section B describes the performance and quality measures the City will use to evaluate the Agreement. A copy of the proposed 2011 Community Services Agreement with Southlake Community Band is included with this memo. Financial Considerations: The Southlake Community Band has requested funding of $7,000 for 2011 for services rendered to the community. This represents no increase from the previous fiscal year. Funding is available in the approved FY 2011 general fund budget for this proposed expenditure. Strategic Link: This item is linked to the City’s Strategy Map related to the focus area of Quality Development and Partnerships and Volunteerism and meets the corporate objectives to Provide Attractive and Unique Spaces for Enjoyment of Personal Interests, Collaborate with Select Partners to Implement Service Solutions, Provide High Quality Customer Service and Actively Promote Opportunities for Partnerships and Volunteer Involvement. Citizen Input/ Board Review: Southlake Arts Council review and recommendation December 14, 2010 City Council to consider January 4, 2011. Legal Review: This agreement was modeled after the standard community services agreement utilized by the City. Alternatives: Alternatives may include the following: • Arts Council recommendation to approve proposed agreement as presented • Arts Council recommendation to approve agreement with input as desired • Arts Council recommendation not to approve proposed agreement Supporting Documents: Proposed Agreement for Community Services with Southlake Community Band. Southlake Arts Council Meeting Date – December 14, 2010 Page 3 of 3 5C - 3 Recommendation: Southlake Arts Council recommendation to City Council to approve the 2011 Community Services Agreement with the Southlake Community Band with funding support of $7,000. 2011 AGREEMENT BETWEEN CITY OF SOUTHLAKE AND SOUTHLAKE COMMUNITY BAND STATE OF TEXAS § § COUNTY OF TARRANT § THIS AGREEMENT is entered into by and between the City of Southlake, Texas, a home rule municipal corporation located in Tarrant County and Denton County, Texas, acting by and through its duly authorized Mayor (hereinafter referred to as “City”), and Southlake Community Band, a non-profit corporation of Texas, acting by and through its duly authorized President (hereinafter referred to as the “Band”), an organization exempt from taxation under Section 501(c)(3) of the Internal Revenue Code. WHEREAS, the mission of the Band is to provide support for a strong local arts program through local concert events which help provide a focus for the expansion of other arts programs in the City of Southlake; and WHEREAS, City and the Band desire to enter into a Renewal Agreement whereby the Band will continue to provide citizens access to participate in the arts, free concert events, and concert scheduling; NOW, THEREFORE, City and the Band, in consideration of the mutual undertakings hereunder set forth, do hereby covenant and agree as follows: SECTION 1 SCOPE OF SERVICES A. Band shall provide the services as outlined in the attached Appendix, Section A. B. City shall provide services and funding as outlined in the attached Appendix, Section A. SECTION 2 CITY AND BAND STAFF CONTACT S A. The Band and the City shall both provide staff liaison’s as outlined in the attached Appendix, Section A. 2011 Community Services Agreement with Southlake Community Band Approved by City Council (date) Page 2 of 7 SECTION 3 GOVERNANCE A. The Band shall be solely governed by its board of directors, who shall meet in accordance with the bylaws and articles of incorporation. The time, date, place and agenda of these board meetings shall be the responsibility of the Band board of directors. SECTION 4 CONSIDERATION In recognition that the City elected to support the Band and their support for the local arts rather than provide such service, City agrees to an annual payment to be paid to the Band in the amount of $7,000 to be dispersed annually on November 1 of each year. Final payment amount is subject to City Council budget authorization. Payment by the City shall be applied by the Band as described in the attached Appendix, Section A. SECTION 5 REPORTING A. The Band shall generate and provide to Kerry McGeath, Deputy Director of Community Services of the City, quarterly reports regarding the performance measures outlined in the attached Appendix, Section B. SECTION 6 INSURANCE AND INDEMNIFICATION A. BAND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND OTHER CONSULTANTS), ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE NEGLIGENT ACT OR OMISSION OF SOUTHLAKE COMMUNITY BAND, ITS OFFICERS, EMPLOYEES AND AGENTS, IN THE PERFORMANCE OF SERVICES UNDER THIS AGREEMENT. SOUTHLAKE COMMUNITY BAND SHALL NOT BE REQUIRED TO INDEMNIFY THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FOR ANY DAMAGES OR LIABILITY FOUND BY A COURT TO HAVE ARISEN FROM THE NEGLIGENT ACT OR OMISSION OF THE CITY, 2011 Community Services Agreement with Southlake Community Band Approved by City Council (date) Page 3 of 7 ITS OFFICERS, AGENTS OR EMPLOYEES, EXCEPT TO THE EXTENT OF ANY APPLICABLE INSURANCE COVERAGES. SECTION 7 INDEPENDENT CONTRACTOR In performing the services hereunder, the Band is acting as an independent contractor, and shall not be deemed an employee, agent or partner of the City. City shall have no power to direct or supervise its activities in carrying out its responsibilities under this Agreement. Neither party shall have the authority to make binding representations or agreements on behalf of the other. SECTION 8 TERM OF AGREEMENT AND REVIEW OF PERFORMANCE 1. The term of this agreement shall be for a period beginning October 1 2010 and ending September 30 2011. This agreement may be renewed for up to three successive one-year periods beginning on October 1 and ending on September 30 of each year upon written agreement by both parties and annual budget approval by the Southlake City Council. 2. At the end of the term, the City will undertake an annual review of the performance based upon performance and quality measures outlined in the attached Appendix, Section B. 3. Notwithstanding any provision herein to the contrary, either party may terminate this Agreement upon 30 days written notice to the other. Upon termination, or if the Band ceases to provide transportation services, the Band shall return to the City any unexpended funds paid pursuant to this Agreement. SECTION 9 NO WAIVER OF GOVERNMENTAL IMMUNITY Notwithstanding any provision of this Agreement to the contrary, nothing contained in this agreement shall be construed to limit or waive any governmental or sovereign immunity of the City, or any immunity applicable to its officers, agents, servants or employees. To the extent there may be a waiver of immunity under state law, the remedies available to enforce this agreement are limited to mandamus, specific performance or injunctive relief. All other remedies, including suits for damages and recovery of attorney’s fees are specifically waived by both parties. 2011 Community Services Agreement with Southlake Community Band Approved by City Council (date) Page 4 of 7 SECTION 10 CITY OF SOUTHLAKE – STRATEGIC LINK The City has adopted a Strategic Management System to improve the organization’s ability to define and execute its strategy. Effective strategic management systems provide the mechanism to link the mission, strategy, department goals, citizen perceptions, and service delivery efforts in a continuous feedback loop. The Band, its mission and the services outlined link to the City’s strategy through the following strategic objectives: • Promote opportunities for partnerships and volunteer involvement • Collaborate with select partners to implement service solutions SECTION 11 CITY OF SOUTHLAKE VALUES The City has adopted values that are the fundamental principles that guide how officials, staff, and employees of the City conduct themselves in pursuit of the mission and vision. All business conducted with the City shall adhere to the City's organizational values as described below:  Integrity: Being worthy of the public's trust in all things. We deal honestly and respectfully with each other and the public at all times.  Innovation: Valuing progressive thinking, creativity, flexibility and adaptability in service delivery.  Accountability: Taking personal responsibility for our actions or inaction while putting the interests of the taxpayer first.  Commitment to Excellence: Behaving responsively in our delivery of service to the public. Our work is characterized by its quality and by the diligence with which it is carried out. We proactively seek to solve problems in advance.  Teamwork: Recognizing the importance of working together to meet our citizen's needs, communicating clearly, sharing resources and information freely. The values set forth in Section 11 are goals to which City officials, staff and employees are expected to adhere to in activities concerning this Agreement. While perceived failure to adhere to, comply with, or take action consistent with these values should be reported to an appropriate City official, staff member, or employee, such action or failure to act shall not be considered a breach of this Agreement. 2011 Community Services Agreement with Southlake Community Band Approved by City Council (date) Page 5 of 7 SECTON 12 MISCELLANEOUS This Agreement sets forth all the agreements between the parties and no modification shall be effective unless reduced to writing and signed by the part to be changed therewith. This document may be executed in duplicate originals. IN WITNESS WHEREOF the City and the Band have executed this Agreement as of this_____ day of ____________________, 201__. _________________________ Mayor, City of Southlake _________________________ President, Southlake Community Band Approved as to form and legality: Attorney at Law 2011 Community Services Agreement with Southlake Community Band Approved by City Council (date) Page 6 of 7 2011 AGREEMENT BETWEEN CITY OF SOUTHLAKE AND SOUTHLAKE COMMUNITY BAND APPENDIX SECTION A SCOPE OF SERVICES A. In return for payment described in Section 4 of this agreement, the Band shall provide the following services: 1. The Band staff contact person to serve as a liaison between the Band and the City: a. Name: Ken McMillan b. Title: c. Phone: d. Email Address: kenmcmillan@verizon.net 2. Perform at least 8 concert events free to the public between January 1, 2011 and September 30, 2011. Proposed events include but are not limited to: Fall Concert, Home for the Holidays, Winter Holiday Concert, Guest Artist Concert, Annual Young Peoples Concert, Stars and Stripes City of Southlake July 4th Celebration, Other concerts at Town Square, and Art in the Square. A list of proposed concerts will be provided to staff at the beginning of the CS agreement period. 3. Scheduling of concerts and make up concerts, if necessary, will be by agreement of the City Community Services Director and the Band President. 4. Provide a creative arts program for music appreciation which is open to the public. 5. Present an update to the Southlake Arts Council quarterly or as is necessary. B. In addition to payment described in Section 4 of this agreement, City shall: 1. Provide a staff contact person to serve as a liaison between City and the Band. The City liaison shall be apprised by the Band of all the Band board meetings, the Band shall forward a copy of the agenda for each meeting prior to any scheduled meetings, and the City liaison may participate with the Band board at all scheduled meetings. a. Name: Kerry McGeath 2011 Community Services Agreement with Southlake Community Band Approved by City Council (date) Page 7 of 7 b. Title: Deputy Director Community Services (Arts Council Liaison) c. Phone: 817 748 8246 d. Email Address: kmcgeath@coi.southlake.tx.us 2. Provide a presence on the www.cityofsouthlake.com which is limited to: a. One information page which includes organization name, mission, contact information and link to organization website; and b. ---insert event info language---; 3. Consider posting information contained in press releases on www.MySouthlakeNews.com and/or www.CityofSouthlake.com. Any and all information in such press releases will be subject to review and possible revision prior to posting. 4. Publish in the quarterly editions of the Southlake Scene organization information to include organization name, mission, contact information and link to organization website. 5. Provide access to the City’s logo for use by the Band. Such use is subject to review and approval by the City’s Community Relations Officer. 6. Provide at no cost to the Band in accordance with current policies and guidelines, the use of City facilities for events and meetings directly related to the Band business. Requests for use of City facilities shall follow current reservation procedures as outlined in the Facility Use Policy. SECTION B PERFORMANCE AND QUALITY MEASURES A. In evaluating the Band’s performance pursuant to Section 8 of this agreement, the City will determine whether the Band has met the following performance measures: 1. The Southlake Community Band organization will track attendance at concerts they provide throughout the year and provide that information to city staff at the end of each calendar quarter. 2. The band will provide an assement of value that their program created in the community for the period of the contract at the end of each calendar year. 3. The band will track attendance and participation in the creative arts programming it provides the community and will provide that information to city staff at the end of the calendar quarter. M E M O R A N D U M December 1, 2010 TO: Southlake Arts Council FROM: Jim Blagg, Assistant City Manager - Operations SUBJECT: Recommendation on artist contracts for Roundabout Art Action Requested: Arts Council recommendation on the artists contracts for roundabout art Background Information: The Arts Council will be considering the artist contracts to provide a recommendation to City Council. The contracts will be provided in the packet of materials delivered to Arts Council members and a presentation will be made at the Arts Council meeting. Financial Considerations: Total cost not to exceed $360,000 Citizen Input/ Board Review: Southlake Arts Council review and recommendation December 14, 2010. City Council will consider the Contracts at their January 4, 2011 meeting. Legal Review: N/A Alternatives: Alternatives may include the following: • Arts Council recommendation to approve proposed contracts as presented • Arts Council recommendation to approve proposed contracts with input as desired • Arts Council recommendation not to approve the proposed contracts Supporting Documents: Supporting documents include: • Contracts for artists Vandable, Davis and Dedecker Recommendation: Southlake Arts Council recommendation to City Council to approve the artists contracts for roundabout art 1 City of Southlake CONTRACT FOR COMMISSION THIS CONTRACT FOR COMMISSION is made this 4th day of January, 2011, by and between the City of Southlake (hereinafter called “City”); and Seth Vandable (hereinafter called “Artist”). WHEREAS, the City of Southlake solicited proposals for a Artwork of public art (hereinafter called “Artwork”) to be located in the roundabout at Continental Carroll/Brumlow and (hereinafter called “Site”); and WHEREAS, the Artist submitted a proposal for the Artwork pursuant to the City’s request for proposals; and WHEREAS, the Artist was selected by the City to design, execute, fabricate and install the Artwork; and WHEREAS, the City and the Artist desire to set forth the terms upon which the Artist will produce and install the Artwork for the City; NOW, THEREFORE, the City and the Artist, for the consideration and under the conditions hereinafter set forth, agree as follows: ARTICLE I. SCOPE OF SERVICES A. General 1. Responsibilities of the Parties. The Artist agrees to create, build, fabricate and install the Artwork in accordance with Exhibit “A”. a. Design and Installation. The Artist shall furnish all materials, labor, tools, equipment, apparatus, facilities and anything else necessary to complete installation of the Artwork in a workmanlike manner. The Artwork shall be permanently affixed to the Site in the manner to be determined by a structural engineer as described in Exhibit "A". The Artwork shall be delivered and installed by the Artist at its sole cost and expense. Design and installation of the Artwork shall comply with applicable building codes and seismic safety regulations. 2 b. 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, neither Artist nor Guild shall be charged a fee for issuance of a City building permit or any City license. c. Size of Artwork. The completed Artwork shall be true to the estimated measurements and constructed out of the materials described in Exhibit "A". 2. The permanent location for the Artwork at the Site as well as other acceptable locations shall be as described on the map attached hereto as Exhibit B and incorporated herein by reference. The Artist shall design and construct the sculpture and its base so that as installed it will be structurally safe and sound in compliance with all current State of Texas Building and Seismic Standards in accordance with the Uniform Building Code. 3. Subject to review and acceptance by the City, the Artist shall determine the artistic expression, scope, design, color, size, context and texture of the Artwork. 4. The City shall pay for actual, reasonable and necessary costs for transportation, meals and lodging for the Artist representative while traveling to, from and while residing in North Texas as well as any and all other costs associated with the Artist’s stay in North Texas to commence and complete the Artwork, with prior written approval of the City. B. EXECUTION OF THE ARTWORK 1. The Artist shall complete the installation and fabrication of the Artwork in conformity with the specifications set forth in Article I, Section A.1 of this contract and Exhibit A herein. 2. Prior to implementation of any changes in the Artwork, the Artist shall present to the City in writing, a detailed description of such proposed changes. The City shall have the right in its sole absolute discretion to approve or disapprove any changes suggested by the Artist. The Artist 3 may implement changes only with the prior written approval of the City. 3. The City shall have the right to review the progress of the Artwork at reasonable times, and with advance notice, during the fabrication thereof. The Artist shall submit such reports regarding the progress of the Artwork as the City may request. 4. In the design, execution, fabrication, installation and documentation of the Artwork, the Artist shall comply with all applicable federal, state and local laws, rules and regulations, including those pertaining to Worker’s Compensation insurance and employee liability insurance. 5. The Artist shall complete the fabrication and installation of the Artwork by October 14, 2011 (hereinafter called ‘Installation Date”), provided this contract has been fully executed by the City and the initial payment has been remitted by February, 2011. If this contract has not been fully executed by all parties hereto by January 30, 2011, the Artist shall complete the fabrication and installation of the Artwork within ten (10) months from the date of the execution of this contract. The installation date may be extended only with the written approval of the City. C. DELIVERY AND INSTALLATION 1. The Artist shall notify the City in writing when fabrication of the Artwork is completed, and the Artist is ready to deliver the Artwork and install it at the Site. 2. The Artist shall Artwork with the City in the development of the plan for the site. 3. The City shall be responsible for all expenses, materials, labor and equipment to prepare the Site for the timely installation of the Artwork. The Artist shall deliver and install the completed Artwork at the Site. Cost of delivery and installation shall be paid for by the City. These costs to include: a) crane and related equipment b) labor charges, barricades and traffic control 4 c) costs of travel as described in Article I, Section A4, but no additional fee for Artist’s time and effort. 4. The Artist shall coordinate with the City to prepare the Site for installation. The City shall use its best efforts to arrange to temporarily modify and/or barricade the Site so as to effectively secure the Site and protect the public during installation of the Artwork. D. POST-INSTALLATION 1. The Artist shall furnish the City with a full written narrative description of the Artwork. 2. The Artist shall provide to the City, written instructions for appropriate maintenance and preservation of the Artwork, including moving and reinstallation of the Artwork. 3. The City shall provide and install an identification plaque which shall be made of bronze in the approximate size of 8.5” X 11”, which shall include the following information: Title: TBD artist’s name Year E. FINAL ACCEPTANCE 1. The Artist shall notify the City in writing when all services required by the Artist under the Contract (including those described in Article I, Section D) have been completed. The Artist shall, prior to final acceptance, provide the City with such lien and/or claim releases with respect to the Artwork as the City may require. 2. The City shall notify the Artist in writing of its final acceptance of the Artwork. 3. Final acceptance shall be determined by the City in its sole and absolute discretion. Such acceptance shall constitute the City’s acknowledgement that the Artwork has been completed and installed according to the terms of this Contract. 5 4. Title of ownership of the Artwork shall pass to the City upon final acceptance. In no event shall the final acceptance occur more than 30 days from the date of installation. F RISK OF LOSS 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 necessary to protect the Artwork and the materials relating hereto from loss or damage and to insure the Artwork and the materials relating thereto until final acceptance. 2. The Artist shall maintain appropriate insurance on the Artwork, insuring against potential risk of loss, including but not limited to design, fabrication, transportation and installation, in an amount acceptable and approved by the City’s Risk Manager. The City shall be shown as an additional insured for general liability. ARTICLE II. COMPENSATION A. PAYMENT SCHEDULE 1. The City shall pay the Artist a fixed fee of $90,000, which shall constitute full compensation for all services and materials to be performed and furnished by the Artist under this Contract. The compensation shall be payable as set forth on the Schedule of Compensation attached to this Agreement as Exhibit “C” and incorporated by this reference. 2. For all other expenses for which the City is obligated, payment shall be made 30 days after receipt of written statement. B. FEE STATEMENTS In order to receive the payments described in clauses II. A. 1. and II. A. 2. above, the Artist shall submit a statement to the City. 6 ARTICLE III. TIME OF PERFORMANCE A. CITY DELAY If the Artist is delayed from installing the Artwork by the Installation Date as a result of action taken by the City, the City shall reimburse the Artist for actual transportation and storage costs incurred for the period between the Installation date and date on which the Site is available to permit installation of the Artwork, if and only if, the transportation and storage cost are incurred as a direct result of the delay by the City. The City shall not be responsible for any transportation and storage costs that the Artist would have been required to pay in the absence of delay caused by the City. B. FORCE MAJEURE Except for the City’s obligations to make payments following the Payment Schedule neither party shall be considered in default in the performance of its obligations hereunder if such performance is prevented or delayed because of war, hostilities, revolution, civil commotion, strike, lock-out, epidemic, accident, fire, wind, catastrophic event or flood or because of any law, order, proclamation, regulation or ordinance of any government or of any subdivision thereof or because of any act of God or any other cause beyond the reasonable control of the party affected (“Force Majeure Event”); provided that the affected party shall have used its best efforts to avoid such condition and, provided further, that notice of such Force Majeure Event is given by the affected party to the other within five (5) days of said Force Majeure Event. Should one or both of the parties be prevented from fulfilling their contractual obligations because of a Force Majeure Event lasting continuously for a period of at least six (6) months, the parties shall consult with each other regarding the future implementation of this Agreement. The parties agree to use their best efforts to minimize any delays and/or losses, if any, resulting from such Force Majeure Event. C. ASSIGNMENT In the event of the serious illness or death of the Artist during the construction and/or the installation of the 7 Artwork, his heirs, family and estate will in no way be responsible for the completion of the unfinished Artwork nor shall they be entitled to the compensation for uncompleted Artwork due under this contract. The National Sculptors’ Guild shall be responsible for the completion of the Artwork, subject to the written approval of the City. ARTICLE IV. WARRANTIES A. WARRANTIES OF TITLE 1. The Artist represents and warrants that: a. the Artwork is solely the result of the artistic and creative efforts of the Artist; b. except as otherwise disclosed in writing to the City, the Artwork is unique and original and does not infringe upon any Copyright; and c. the Artwork is free and clear of all liens from any source whatsoever. 2. The warranties described in this Section A shall survive for so long as the City or any successor of City owns the Artwork. B. WARRANTIES OF QUALITY AND CONDITION 1. The Artist represents and warrants that: a. the Artwork, as fabricated and installed, will be free of defects in material and workmanship, including any defects of “inherent vice” or qualities which may cause or accelerate deterioration of the Artwork; and b. reasonable maintenance of the Artwork will not require procedures in excess of those described in Article I, Section D, subsection 2. 2. The warranties described in this Section shall survive for a period of one (1) year after final acceptance of the Artwork. The City shall give notice to the Artist of any observed breach of these warranties with reasonable promptness. The Artist shall, at the request of the City, and at no cost to the City, cure reasonably and promptly the breach of any such warranties, which is curable and which cure is consistent with professional conservation standard (including, for example, cure by means of repair or refabrication of the Artwork). 8 3. The Artist shall not be responsible for any damage inflicted on the Artwork by third parties or outside forces, whether man-made or from natural causes, which exceed those that the design of the Artwork should reasonably tolerate. 4. After final acceptance of the Artwork by the City, the City shall hold the Artist harmless from any and all liability or personal injury to the public, except to the extent covered by the warranties of Article IV, Section B.1. ARTICLE V. OWNERSHIP OF ARTWORK AND COPYRIGHT A. GENERAL 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. If the Artist objects to the new location, the only remedy available to the Artist is to request in writing that the City remove the identification plaque referred to in Article I, Section D, subsection 3 herein, and that the City not promote the Artwork as that of the Artist. Provided however, this provision in no way prohibits the City from truthfully responding to inquiries, oral and written, as to the name of the Artist. The Artist shall not unreasonably object to a change of location or alteration of the site. IDENTITY OF ARTIST The Artist grants to the City and its assigns an irrevocable license to make two-dimensional reproductions of the Artwork for non-commercial purposes, including but not limited to reproductions used in advertising, brochures, media publicity, and catalogues or other publications, provided that these rights are exercised in a tasteful and professional manner. All two-dimensional reproductions of the Artwork by the City shall contain a credit to the Artist substantially in the following form: Artists Name, Seth Vandable Date: December 8th 2010 9 B. NOTICES All notices required herein shall be in writing and served upon the parties as follows: Seth Vandable PO Box 2466 Cedar Hill, TX 75106 (972) 293 8151 City of Southlake Assistant City Manager: Jim Blagg Project Manager: Kerry McGeath City address: 1400 Main Street, STE 440 Southlake, TX 76092 Phone no: 817 748 8384 All notices required herein shall be deemed served when mailed by First Class Mail, Certified Mail, postage prepaid, to each party’s last known mailing address. It is the responsibility of each party to inform the other of a change in address. If notice cannot be served due to a change in address, which has not been served upon the other party, such party’s failure to notify shall be deemed a waiver of notice. ARTICLE VI. SUBSEQUENT EVENTS A. MAINTENANCE The City and the Artist recognize that maintenance of the Artwork on a regular basis is essential to the integrity of the Artwork. Therefore, the City shall assure regular maintenance according to the instructions supplied by the Artist as set forth herein under Article I, Section D.2. and may take action reasonably designed to protect the Artwork against vandalism. B. REPAIRS AND RESTORATION After final acceptance of the Artwork, the Artist may inspect the Artwork at his own expense and shall notify the City in writing as to the necessity of any repairs. The City may in its discretion consult with the Artist and make the noted repairs. All such consultations shall be without additional cost to the City. 10 C. ALTERATION OF THE ARTWORK The City will not consent to the intentional alteration, modifications of change to the Artwork. The City shall retain the right to sell or donate the Artwork to a third party. D. ALTERATION OF THE SITE The City shall notify the Artist of any proposed significant alterations of the Site. The Artist may at his sole expense request copies of plans detailing proposed alterations to the Site. If such alterations cannot be undertaken to the reasonable satisfaction of the Artist, he may request the public notice referred to in Article I, Section D.3. be removed and otherwise proceed in accordance with Article V. Section A. E. WAIVER OF RIGHTS The Artist understands and agrees that the provisions of this Article VI shall control over the provisions of 17 U.S.C. – 106A (a), known as the Visual Artist Rights Act of 1990 (“VARA”), and other laws granting the Artist any “moral rights” or similar rights as to the Artwork, and shall constitute a waiver by the Artist of any rights with the exception of copyright, in the Artwork set out in or otherwise granted by 17 U.S.C. – 106A (a) or in such other laws. ARTICLE VII. INDEPENDENT CONTRACTOR The Artist performs this contract as an independent contractor and not as an agent or an employee of the City. The Artist shall maintain control; furnish all supervision, labor, materials, equipment, supplies, other incidentals, as well as transportation, shipping and installation of the Artwork. ARTICLE VIII. ASSIGNMENT The Artwork and services required of the Artist, Seth Vandable, under this Contract are personal and shall not be assigned, sublet or transferred. However, the Artist shall be allowed to employ qualified personnel who shall Artwork under the Artist’s supervision. 11 ARTICLE IX. INDEMNIFICATION The Artist shall defend, release, indemnify and save and hold harmless the City against any and all damages to property or injuries to or death of any person or persons, and shall defend, release, indemnify and hold harmless the City from any and all claims, demands, suits, liabilities, actions, causes of actions, or legal or equitable proceedings of any kind or nature, including reasonable attorney’s fees incurred by legal counsel of the City’s choice, or by anyone whomsoever, in any way resulting from or arising out of the Artist’s activities in connection with this Contract, including acts of omissions of the Artist or persons acting under the Artist’s control. ARTICLE X. TERMINATION & MEDIATION A. TERMINATION 1. If either the Artist or the City shall willfully or negligently fail to fulfill in a timely and proper manner, or otherwise violate any of the covenants, agreements or stipulations material to this Contract, the other party shall thereupon have the right to terminate this Contract by giving written notice to the defaulting party of its intent to terminate and specifying the grounds for termination. The defaulting party shall have thirty days (30) after receipt of the notice to cure the default. If the default is not cured within such time period, this Contract shall terminate. 2. In the event of a default by the City, the City shall promptly compensate the Artist pursuant to Article II for all services performed by the Artist prior to termination, and all finished and unfinished drawings, sketches, photographs and other Artwork products prepared and submitted or prepared for submission by the Artist under this Contract shall at the City’s option become its property, provided that no right to fabricate or execute the Artwork shall pass to the City. 3. In the event of a default by the Artist, Seth Vandable, shall forfeit the right to any and all remaining payments due under this contract for which Artwork has not been completed as well as any and all copyrights reserved herein and any and all limited edition rights as defined herein. Then and in that event Seth Vandable shall be responsible 12 for completion of The Artwork, subject to the written approval of the City. B. MEDIATION If, during the creation of the Artwork, its installation and subsequent existence, any disputes should arise between the Artist and the City, the parties hereto will mediate their disagreements and make every effort to affect a mutually satisfactory resolution of the disagreements including the appointment of an independent mediator reasonably acceptable to both parties. If unable to agree, a mediator shall be appointed by the court. Costs will be equally divided. ARTICLE XI. MODIFICATION No alteration, change or modification of the terms of this Contract shall be valid unless made in writing and signed by the parties hereto. ARTICLE XII. CONFLICT OF LAW Any provision of this Contract, which is hereafter found by a court of law or otherwise to be in conflict with the laws, rules, and/or regulations of the United States or the States of Colorado and Texas shall be considered null and void. The valid provisions of this Contract shall be severed from the invalid provisions and remain in effect to the extent possible. The law of the State of Texas shall govern the interpretation of this contract. ARTICLE XIII. CHOICE OF LAW All conflicts, causes of actions and civil disputes shall be filed in the Tarrant County, Texas Superior Court. ARTICLE XIV. EFFECTIVE DATE The effective date of this Contract shall be the date of approval by all parties hereto. ARTICLE XV. COUNTERPARTS FOR SIGNATURE This contract may be executed in duplicate counterparts, each of which shall be deemed an original. 13 Attest to: CITY The City of Southlake, Texas ARTIST Seth Vandable By: By: Shana Yelverton, City Manager Seth Vandable, Artist Approved as to Form: By: _____________________________________ Taylor, Olson, Adkins, Sralla, and Elam L.L.P City Attorneys STATE OF TEXAS § 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 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 ________, 2009. ______________________________________________ NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS STATE OF TEXAS: § COUNTY OF TARRANT § BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THIS STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED JANICE HART MELITO KNOWN TO ME TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO 14 THE FOREGOING INSTRUMENT AND ACKNOWLEDGED TO ME THAT SHE EXECUTED THE SAME FOR THE PURPOSE AND CONSIDERATION EXPRESSED GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS ____ DAY OF ________, _____. ______________________________________________ NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS 15 EXHIBIT “A” SCOPE OF ARTWORK & TIMELINE Sculpture The services are to be provided by Seth Vandable, sculptor, in the creation of a bronze sculpture for the roundabout at Continental and Carroll(Brumlow) Streets in Southlake Texas per the design approved by the Southlake City Council, SETH VANDABLE 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 sculptures: A. Provide the material for all of the sculptures. B. Seth Vandable will sculpt the above described sculptures in clay for approval. C. Provide appropriate packing and ship the sculptures to the site. D. Install the sculptures on footings and/or pedestals built by the Contractor. E. Consult with City of Southlake in the design and creation of the Site rooms that will stage the Artwork as necessary. F. Create the drawings and templates for the bas relief as well as any bronze or stainless steel elements of the bas relief. G. Supervise and assist a subcontractor in the creation of the bas relief. Clarifications The cost and construction of the footings and pedestals shall be a part of the Contractors contract. The cost and installation of the stone walls of the outside rooms shall be a part of the Contractors contract. Footings The services are to be provided by the City of Southlake’s Contractor and a part of the construction costs. The City of Southlake’s Contractor will provide all labor and material for the footings and pedestals at the City’s expense. 16 Note: City of Southlake is responsible to provide any and all landscape lighting. Clarifications Should there be any pedestrian barricades required during installation it will be the City of Southlake’s responsibility. 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 Artworking 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. 17 EXHIBIT “B” Task Timeline COS Artist Conceptual drawings Month 1 January 2011 Contract signed Provide final conceptual drawings Begin Work on clay figures Month 1 Through Month 5 Begins work on clay figures and continues that work Clay figures approved and sent to foundry for casting – approve Bronze on return from Foundry Month 5 through 9 On-site visit month 5 Approve clay figures and final bronze on return from foundry Clay figures completed and reviewed by COS – approval for foundry work to begin Supervise casting process at foundry Approve final bronze Final acceptance by project manager and dedication Month 10 October 2011 Final acceptance by project manager and installation Bronze figures delivered and installed 18 SITE 19 EXHIBIT “C” SCHEDULE OF COMPENSATION Total due $90,000, payable as follows: • One Third (33.33%) down ($29,997.00) upon execution of the contract, • on or before, February 4th 2011 • One third (33.33%) ($29,997.00) • on or before June 10th 2011 • The remainder ($30,006) upon installation. All payments shall be made within 30 days after receipt of a written statement. All checks shall be made payable to Seth Vandable Payments received outside of the 30 day payment period shall bear interest at the rate of 1.5% (18% per annum) and the project completion time shall be extended by the number of days the payment is delinquent. 20 EXHIBIT “D” 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 ___________________________, 20____. 21 ________________________________ 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 _______________________, 20___. ________________________________ Notary Public in and for The State of ___________ My commission expires: ____________ 22 23 1 City of Southlake CONTRACT FOR COMMISSION THIS CONTRACT FOR COMMISSION is made this 4th day of January, 2011, by and between the City of Southlake (hereinafter called “City”); and Darrell Davis (hereinafter called “Artist”). WHEREAS, the City of Southlake solicited proposals for a Artwork of public art (hereinafter called “Artwork”) to be located in the roundabout at Dove and Carroll roads and (hereinafter called “Site”); and WHEREAS, the Artist submitted a proposal for the Artwork pursuant to the City’s request for proposals; and WHEREAS, the Artist was selected by the City to design, execute, fabricate and install the Artwork; and WHEREAS, the City and the Artist desire to set forth the terms upon which the Artist will produce and install the Artwork for the City; NOW, THEREFORE, the City and the Artist, for the consideration and under the conditions hereinafter set forth, agree as follows: ARTICLE I. SCOPE OF SERVICES A. General 1. Responsibilities of the Parties. The Artist agrees to create, build, fabricate and install the Artwork in accordance with Exhibit “A”. a. Design and Installation. The Artist shall furnish all materials, labor, tools, equipment, apparatus, facilities and anything else necessary to complete installation of the Artwork in a workmanlike manner. The Artwork shall be permanently affixed to the Site in the manner to be determined by a structural engineer as described in Exhibit "A". The Artwork shall be delivered and installed by the Artist at its sole cost and expense. Design and installation of the Artwork shall comply with applicable building codes and seismic safety regulations. 2 b. 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, neither Artist nor Guild shall be charged a fee for issuance of a City building permit or any City license. c. Size of Artwork. The completed Artwork shall be true to the estimated measurements and constructed out of the materials described in Exhibit "A". 2. The permanent location for the Artwork at the Site as well as other acceptable locations shall be as described on the map attached hereto as Exhibit B and incorporated herein by reference. The Artist shall design and construct the sculpture and its base so that as installed it will be structurally safe and sound in compliance with all current State of Texas Building and Seismic Standards in accordance with the Uniform Building Code. 3. Subject to review and acceptance by the City, the Artist shall determine the artistic expression, scope, design, color, size, context and texture of the Artwork. 4. The City shall pay for actual, reasonable and necessary costs for transportation, meals and lodging for the Artist representative while traveling to, from and while residing in North Texas as well as any and all other costs associated with the Artist’s stay in North Texas to commence and complete the Artwork, with prior written approval of the City. B. EXECUTION OF THE ARTWORK 1. The Artist shall complete the installation and fabrication of the Artwork in conformity with the specifications set forth in Article I, Section A.1 of this contract and Exhibit A herein. 2. Prior to implementation of any changes in the Artwork, the Artist shall present to the City in writing, a detailed description of such proposed changes. The City shall have the right in its sole absolute discretion to approve or disapprove any changes suggested by the Artist. The Artist 3 may implement changes only with the prior written approval of the City. 3. The City shall have the right to review the progress of the Artwork at reasonable times, and with advance notice, during the fabrication thereof. The Artist shall submit such reports regarding the progress of the Artwork as the City may request. 4. In the design, execution, fabrication, installation and documentation of the Artwork, the Artist shall comply with all applicable federal, state and local laws, rules and regulations, including those pertaining to Worker’s Compensation insurance and employee liability insurance. 5. The Artist shall complete the fabrication and installation of the Artwork by October 14, 2011 (hereinafter called ‘Installation Date”), provided this contract has been fully executed by the City and the initial payment has been remitted by February, 2011. If this contract has not been fully executed by all parties hereto by January 30, 2011, the Artist shall complete the fabrication and installation of the Artwork within ten (10) months from the date of the execution of this contract. The installation date may be extended only with the written approval of the City. C. DELIVERY AND INSTALLATION 1. The Artist shall notify the City in writing when fabrication of the Artwork is completed, and the Artist is ready to deliver the Artwork and install it at the Site. 2. The Artist shall Artwork with the City in the development of the plan for the site. 3. The City shall be responsible for all expenses, materials, labor and equipment to prepare the Site for the timely installation of the Artwork. The Artist shall deliver and install the completed Artwork at the Site. Cost of delivery and installation shall be paid for by the City. These costs to include: a) crane and related equipment b) labor charges, barricades and traffic control 4 c) costs of travel as described in Article I, Section A4, but no additional fee for Artist’s time and effort. 4. The Artist shall coordinate with the City to prepare the Site for installation. The City shall use its best efforts to arrange to temporarily modify and/or barricade the Site so as to effectively secure the Site and protect the public during installation of the Artwork. D. POST-INSTALLATION 1. The Artist shall furnish the City with a full written narrative description of the Artwork. 2. The Artist shall provide to the City, written instructions for appropriate maintenance and preservation of the Artwork, including moving and reinstallation of the Artwork. 3. The City shall provide and install an identification plaque which shall be made of bronze in the approximate size of 8.5” X 11”, which shall include the following information: Title: TBD artist’s name Year E. FINAL ACCEPTANCE 1. The Artist shall notify the City in writing when all services required by the Artist under the Contract (including those described in Article I, Section D) have been completed. The Artist shall, prior to final acceptance, provide the City with such lien and/or claim releases with respect to the Artwork as the City may require. 2. The City shall notify the Artist in writing of its final acceptance of the Artwork. 3. Final acceptance shall be determined by the City in its sole and absolute discretion. Such acceptance shall constitute the City’s acknowledgement that the Artwork has been completed and installed according to the terms of this Contract. 5 4. Title of ownership of the Artwork shall pass to the City upon final acceptance. In no event shall the final acceptance occur more than 30 days from the date of installation. F RISK OF LOSS 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 necessary to protect the Artwork and the materials relating hereto from loss or damage and to insure the Artwork and the materials relating thereto until final acceptance. 2. The Artist shall maintain appropriate insurance on the Artwork, insuring against potential risk of loss, including but not limited to design, fabrication, transportation and installation, in an amount acceptable and approved by the City’s Risk Manager. The City shall be shown as an additional insured for general liability. ARTICLE II. COMPENSATION A. PAYMENT SCHEDULE 1. The City shall pay the Artist a fixed fee of $90,000, which shall constitute full compensation for all services and materials to be performed and furnished by the Artist under this Contract. The compensation shall be payable as set forth on the Schedule of Compensation attached to this Agreement as Exhibit “C” and incorporated by this reference. 2. For all other expenses for which the City is obligated, payment shall be made 30 days after receipt of written statement. B. FEE STATEMENTS In order to receive the payments described in clauses II. A. 1. and II. A. 2. above, the Artist shall submit a statement to the City. 6 ARTICLE III. TIME OF PERFORMANCE A. CITY DELAY If the Artist is delayed from installing the Artwork by the Installation Date as a result of action taken by the City, the City shall reimburse the Artist for actual transportation and storage costs incurred for the period between the Installation date and date on which the Site is available to permit installation of the Artwork, if and only if, the transportation and storage cost are incurred as a direct result of the delay by the City. The City shall not be responsible for any transportation and storage costs that the Artist would have been required to pay in the absence of delay caused by the City. B. FORCE MAJEURE Except for the City’s obligations to make payments following the Payment Schedule neither party shall be considered in default in the performance of its obligations hereunder if such performance is prevented or delayed because of war, hostilities, revolution, civil commotion, strike, lock-out, epidemic, accident, fire, wind, catastrophic event or flood or because of any law, order, proclamation, regulation or ordinance of any government or of any subdivision thereof or because of any act of God or any other cause beyond the reasonable control of the party affected (“Force Majeure Event”); provided that the affected party shall have used its best efforts to avoid such condition and, provided further, that notice of such Force Majeure Event is given by the affected party to the other within five (5) days of said Force Majeure Event. Should one or both of the parties be prevented from fulfilling their contractual obligations because of a Force Majeure Event lasting continuously for a period of at least six (6) months, the parties shall consult with each other regarding the future implementation of this Agreement. The parties agree to use their best efforts to minimize any delays and/or losses, if any, resulting from such Force Majeure Event. C. ASSIGNMENT In the event of the serious illness or death of the Artist during the construction and/or the installation of the 7 Artwork, his heirs, family and estate will in no way be responsible for the completion of the unfinished Artwork nor shall they be entitled to the compensation for uncompleted Artwork due under this contract. The National Sculptors’ Guild shall be responsible for the completion of the Artwork, subject to the written approval of the City. ARTICLE IV. WARRANTIES A. WARRANTIES OF TITLE 1. The Artist represents and warrants that: a. the Artwork is solely the result of the artistic and creative efforts of the Artist; b. except as otherwise disclosed in writing to the City, the Artwork is unique and original and does not infringe upon any Copyright; and c. the Artwork is free and clear of all liens from any source whatsoever. 2. The warranties described in this Section A shall survive for so long as the City or any successor of City owns the Artwork. B. WARRANTIES OF QUALITY AND CONDITION 1. The Artist represents and warrants that: a. the Artwork, as fabricated and installed, will be free of defects in material and workmanship, including any defects of “inherent vice” or qualities which may cause or accelerate deterioration of the Artwork; and b. reasonable maintenance of the Artwork will not require procedures in excess of those described in Article I, Section D, subsection 2. 2. The warranties described in this Section shall survive for a period of one (1) year after final acceptance of the Artwork. The City shall give notice to the Artist of any observed breach of these warranties with reasonable promptness. The Artist shall, at the request of the City, and at no cost to the City, cure reasonably and promptly the breach of any such warranties, which is curable and which cure is consistent with professional conservation standard (including, for example, cure by means of repair or refabrication of the Artwork). 8 3. The Artist shall not be responsible for any damage inflicted on the Artwork by third parties or outside forces, whether man-made or from natural causes, which exceed those that the design of the Artwork should reasonably tolerate. 4. After final acceptance of the Artwork by the City, the City shall hold the Artist harmless from any and all liability or personal injury to the public, except to the extent covered by the warranties of Article IV, Section B.1. ARTICLE V. OWNERSHIP OF ARTWORK AND COPYRIGHT A. GENERAL 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. If the Artist objects to the new location, the only remedy available to the Artist is to request in writing that the City remove the identification plaque referred to in Article I, Section D, subsection 3 herein, and that the City not promote the Artwork as that of the Artist. Provided however, this provision in no way prohibits the City from truthfully responding to inquiries, oral and written, as to the name of the Artist. The Artist shall not unreasonably object to a change of location or alteration of the site. IDENTITY OF ARTIST The Artist grants to the City and its assigns an irrevocable license to make two-dimensional reproductions of the Artwork for non-commercial purposes, including but not limited to reproductions used in advertising, brochures, media publicity, and catalogues or other publications, provided that these rights are exercised in a tasteful and professional manner. All two-dimensional reproductions of the Artwork by the City shall contain a credit to the Artist substantially in the following form: Artists Name, Darrell Davis Date: December 8th 2010 9 B. NOTICES All notices required herein shall be in writing and served upon the parties as follows: Darrell Davis 5109 Hidden Oaks Ln. Arlington, TX 76017 817 228 3434 City of Southlake Assistant City Manager: Jim Blagg Project Manager: Kerry McGeath City address: 1400 Main Street, STE 440 Southlake, TX 76092 Phone no: 817 748 8384 All notices required herein shall be deemed served when mailed by First Class Mail, Certified Mail, postage prepaid, to each party’s last known mailing address. It is the responsibility of each party to inform the other of a change in address. If notice cannot be served due to a change in address, which has not been served upon the other party, such party’s failure to notify shall be deemed a waiver of notice. ARTICLE VI. SUBSEQUENT EVENTS A. MAINTENANCE The City and the Artist recognize that maintenance of the Artwork on a regular basis is essential to the integrity of the Artwork. Therefore, the City shall assure regular maintenance according to the instructions supplied by the Artist as set forth herein under Article I, Section D.2. and may take action reasonably designed to protect the Artwork against vandalism. B. REPAIRS AND RESTORATION After final acceptance of the Artwork, the Artist may inspect the Artwork at his own expense and shall notify the City in writing as to the necessity of any repairs. The City may in its discretion consult with the Artist and make the noted repairs. All such consultations shall be without additional cost to the City. 10 C. ALTERATION OF THE ARTWORK The City will not consent to the intentional alteration, modifications of change to the Artwork. The City shall retain the right to sell or donate the Artwork to a third party. D. ALTERATION OF THE SITE The City shall notify the Artist of any proposed significant alterations of the Site. The Artist may at his sole expense request copies of plans detailing proposed alterations to the Site. If such alterations cannot be undertaken to the reasonable satisfaction of the Artist, he may request the public notice referred to in Article I, Section D.3. be removed and otherwise proceed in accordance with Article V. Section A. E. WAIVER OF RIGHTS The Artist understands and agrees that the provisions of this Article VI shall control over the provisions of 17 U.S.C. – 106A (a), known as the Visual Artist Rights Act of 1990 (“VARA”), and other laws granting the Artist any “moral rights” or similar rights as to the Artwork, and shall constitute a waiver by the Artist of any rights with the exception of copyright, in the Artwork set out in or otherwise granted by 17 U.S.C. – 106A (a) or in such other laws. ARTICLE VII. INDEPENDENT CONTRACTOR The Artist performs this contract as an independent contractor and not as an agent or an employee of the City. The Artist shall maintain control; furnish all supervision, labor, materials, equipment, supplies, other incidentals, as well as transportation, shipping and installation of the Artwork. ARTICLE VIII. ASSIGNMENT The Artwork and services required of the Artist, Darrell Davis, under this Contract are personal and shall not be assigned, sublet or transferred. However, the Artist shall be allowed to employ qualified personnel who shall Artwork under the Artist’s supervision. 11 ARTICLE IX. INDEMNIFICATION The Artist shall defend, release, indemnify and save and hold harmless the City against any and all damages to property or injuries to or death of any person or persons, and shall defend, release, indemnify and hold harmless the City from any and all claims, demands, suits, liabilities, actions, causes of actions, or legal or equitable proceedings of any kind or nature, including reasonable attorney’s fees incurred by legal counsel of the City’s choice, or by anyone whomsoever, in any way resulting from or arising out of the Artist’s activities in connection with this Contract, including acts of omissions of the Artist or persons acting under the Artist’s control. ARTICLE X. TERMINATION & MEDIATION A. TERMINATION 1. If either the Artist or the City shall willfully or negligently fail to fulfill in a timely and proper manner, or otherwise violate any of the covenants, agreements or stipulations material to this Contract, the other party shall thereupon have the right to terminate this Contract by giving written notice to the defaulting party of its intent to terminate and specifying the grounds for termination. The defaulting party shall have thirty days (30) after receipt of the notice to cure the default. If the default is not cured within such time period, this Contract shall terminate. 2. In the event of a default by the City, the City shall promptly compensate the Artist pursuant to Article II for all services performed by the Artist prior to termination, and all finished and unfinished drawings, sketches, photographs and other Artwork products prepared and submitted or prepared for submission by the Artist under this Contract shall at the City’s option become its property, provided that no right to fabricate or execute the Artwork shall pass to the City. 3. In the event of a default by the Artist, Darrell Davis, shall forfeit the right to any and all remaining payments due under this contract for which Artwork has not been completed as well as any and all copyrights reserved herein and any and all limited edition rights as defined herein. Then and in that event Darrell Davis shall be responsible 12 for completion of The Artwork, subject to the written approval of the City. B. MEDIATION If, during the creation of the Artwork, its installation and subsequent existence, any disputes should arise between the Artist and the City, the parties hereto will mediate their disagreements and make every effort to affect a mutually satisfactory resolution of the disagreements including the appointment of an independent mediator reasonably acceptable to both parties. If unable to agree, a mediator shall be appointed by the court. Costs will be equally divided. ARTICLE XI. MODIFICATION No alteration, change or modification of the terms of this Contract shall be valid unless made in writing and signed by the parties hereto. ARTICLE XII. CONFLICT OF LAW Any provision of this Contract, which is hereafter found by a court of law or otherwise to be in conflict with the laws, rules, and/or regulations of the United States or the States of Colorado and Texas shall be considered null and void. The valid provisions of this Contract shall be severed from the invalid provisions and remain in effect to the extent possible. The law of the State of Texas shall govern the interpretation of this contract. ARTICLE XIII. CHOICE OF LAW All conflicts, causes of actions and civil disputes shall be filed in the Tarrant County, Texas Superior Court. ARTICLE XIV. EFFECTIVE DATE The effective date of this Contract shall be the date of approval by all parties hereto. ARTICLE XV. COUNTERPARTS FOR SIGNATURE This contract may be executed in duplicate counterparts, each of which shall be deemed an original. 13 Attest to: CITY The City of Southlake, Texas ARTIST Darrell Davis By: By: Shana Yelverton, City Manager Darrell Davis, Artist Approved as to Form: By: _____________________________________ Taylor, Olson, Adkins, Sralla, and Elam L.L.P City Attorneys STATE OF TEXAS § 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 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 ________, 2009. ______________________________________________ NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS STATE OF TEXAS: § COUNTY OF TARRANT § BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THIS STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED JANICE HART MELITO KNOWN TO ME TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO 14 THE FOREGOING INSTRUMENT AND ACKNOWLEDGED TO ME THAT SHE EXECUTED THE SAME FOR THE PURPOSE AND CONSIDERATION EXPRESSED GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS ____ DAY OF ________, _____. ______________________________________________ NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS 15 EXHIBIT “A” SCOPE OF ARTWORK & TIMELINE Sculpture The services are to be provided by Darrell Davis,sculptor,in the creation of a bronze sculpture for the roundabout at Dove and Carroll Streets in Southlake Texas per the design approved by the Southlake City Council, DARRELL DAVIS 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 sculptures: A. Provide the material for all of the sculptures. B. Darrell Davis will sculpt the above described sculptures in clay for approval. C. Provide appropriate packing and ship the sculptures to the site. D. Install the sculptures on footings and/or pedestals built by the Contractor. E. Consult with City of Southlake in the design and creation of the Site rooms that will stage the Artwork as necessary. F. Create the drawings and templates for the bas relief as well as any bronze or stainless steel elements of the bas relief. G. Supervise and assist a subcontractor in the creation of the bas relief. Clarifications The cost and construction of the footings and pedestals shall be a part of the Contractors contract. The cost and installation of the stone walls of the outside rooms shall be a part of the Contractors contract. Footings The services are to be provided by the City of Southlake’s Contractor and a part of the construction costs. The City of Southlake’s Contractor will provide all labor and material for the footings and pedestals at the City’s expense. Note: City of Southlake is responsible to provide any and all landscape lighting. 16 Clarifications Should there be any pedestrian barricades required during installation it will be the City of Southlake’s responsibility. 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 Artworking 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. 17 EXHIBIT “B” Task Timeline COS Artist Conceptual drawings Month 1 January 2011 Contract signed Provide final conceptual drawings Begin Work on clay figures Month 1 Through Month 5 Begins work on clay figures and continues that work Clay figures approved and sent to foundry for casting – approve Bronze on return from Foundry Month 5 through 9 On-site visit month 5 Approve clay figures and final bronze on return from foundry Clay figures completed and reviewed by COS – approval for foundry work to begin Supervise casting process at foundry Approve final bronze Final acceptance by project manager and dedication Month 10 October 2011 Final acceptance by project manager and installation Bronze figures delivered and installed 18 SITE 19 EXHIBIT “C” SCHEDULE OF COMPENSATION Total due $90,000, payable as follows: • One Third (33.33%) down ($29,997.00) upon execution of the contract, • on or before, February 4th 2011 • One third (33.33%) ($29,997.00) • on or before June 10th 2011 • The remainder ($30,006) upon installation. All payments shall be made within 30 days after receipt of a written statement. All checks shall be made payable to Darrell Davis Payments received outside of the 30 day payment period shall bear interest at the rate of 1.5% (18% per annum) and the project completion time shall be extended by the number of days the payment is delinquent. 20 EXHIBIT “C” 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 ___________________________, 20____. 21 ________________________________ 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 _______________________, 20___. ________________________________ Notary Public in and for The State of ___________ My commission expires: ____________ 22 23 1 City of Southlake CONTRACT FOR COMMISSION THIS CONTRACT FOR COMMISSION is made this 4th day of January, 2011, by and between the City of Southlake (hereinafter called “City”); and Jane Dedecker (hereinafter called “Artist”). WHEREAS, the City of Southlake solicited proposals for a Artwork of public art (hereinafter called “Artwork”) to be located in the two roundabouts at Continental and White Chapel, and Dove and White Chapel and (hereinafter called “Site(s)”); and WHEREAS, the Artist submitted a proposal for the Artwork pursuant to the City’s request for proposals; and WHEREAS, the Artist was selected by the City to design, execute, fabricate and install the Artwork; and WHEREAS, the City and the Artist desire to set forth the terms upon which the Artist will produce and install the Artwork for the City; NOW, THEREFORE, the City and the Artist, for the consideration and under the conditions hereinafter set forth, agree as follows: ARTICLE I. SCOPE OF SERVICES A. General 1. Responsibilities of the Parties. The Artist agrees to create, build, fabricate and install Artwork in accordance with Exhibit “A”. a. Design and Installation. The Artist shall furnish all materials, labor, tools, equipment, apparatus, facilities and anything else necessary to complete installation of the Artwork in a workmanlike manner. The Artwork shall be permanently affixed to the Site in the manner to be determined by a structural engineer as described in Exhibit "A". The Artwork shall be delivered and installed by the Artist at its sole cost and expense. Design and installation of the Artwork shall comply with applicable building codes and seismic safety regulations. 2 b. 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, neither Artist nor Guild shall be charged a fee for issuance of a City building permit or any City license. c. Size of Artwork. The completed Artwork shall be true to the estimated measurements and constructed out of the materials described in Exhibit "A". 2. The permanent location for the Artwork at the Site as well as other acceptable locations shall be as described on the map attached hereto as Exhibit B and incorporated herein by reference. The Artist shall design and construct the sculpture and its base so that as installed it will be structurally safe and sound in compliance with all current State of Texas Building and Seismic Standards in accordance with the Uniform Building Code. 3. Subject to review and acceptance by the City, the Artist shall determine the artistic expression, scope, design, color, size, context and texture of the Artwork. 4. The City shall pay for actual, reasonable and necessary costs for transportation, meals and lodging for the Artist representative while traveling to, from and while residing in North Texas as well as any and all other costs associated with the Artist’s stay in North Texas to commence and complete the Artwork, with prior written approval of the City. B. EXECUTION OF THE ARTWORK 1. The Artist shall complete the installation and fabrication of the Artwork in conformity with the specifications set forth in Article I, Section A.1 of this contract and Exhibit A herein. 2. Prior to implementation of any changes in the Artwork, the Artist shall present to the City in writing, a detailed description of such proposed changes. The City shall have the right in its sole absolute discretion to approve or disapprove any changes suggested by the Artist. The Artist 3 may implement changes only with the prior written approval of the City. 3. The City shall have the right to review the progress of the Artwork at reasonable times, and with advance notice, during the fabrication thereof. The Artist shall submit such reports regarding the progress of the Artwork as the City may request. 4. In the design, execution, fabrication, installation and documentation of the Artwork, the Artist shall comply with all applicable federal, state and local laws, rules and regulations, including those pertaining to Worker’s Compensation insurance and employee liability insurance. 5. The Artist shall complete the fabrication and installation of the Artwork by October 14, 2011 (hereinafter called ‘Installation Date”), provided this contract has been fully executed by the City and the initial payment has been remitted by February, 2011. If this contract has not been fully executed by all parties hereto by January 30, 2011, the Artist shall complete the fabrication and installation of the Artwork within ten (10) months from the date of the execution of this contract. The installation date may be extended only with the written approval of the City. C. DELIVERY AND INSTALLATION 1. The Artist shall notify the City in writing when fabrication of the Artwork is completed, and the Artist is ready to deliver the Artwork and install it at the Site. 2. The Artist shall Artwork with the City in the development of the plan for the site. 3. The City shall be responsible for all expenses, materials, labor and equipment to prepare the Site for the timely installation of the Artwork. The Artist shall deliver and install the completed Artwork at the Site. Cost of delivery and installation shall be paid for by the City. These costs to include: a) crane and related equipment b) labor charges, barricades and traffic control 4 c) costs of travel as described in Article I, Section A4, but no additional fee for Artist’s time and effort. 4. The Artist shall coordinate with the City to prepare the Site for installation. The City shall use its best efforts to arrange to temporarily modify and/or barricade the Site so as to effectively secure the Site and protect the public during installation of the Artwork. D. POST-INSTALLATION 1. The Artist shall furnish the City with a full written narrative description of the Artwork. 2. The Artist shall provide to the City, written instructions for appropriate maintenance and preservation of the Artwork, including moving and reinstallation of the Artwork. 3. The City shall provide and install an identification plaque which shall be made of bronze in the approximate size of 8.5” X 11”, which shall include the following information: Title: TBD artist’s name Year E. FINAL ACCEPTANCE 1. The Artist shall notify the City in writing when all services required by the Artist under the Contract (including those described in Article I, Section D) have been completed. The Artist shall, prior to final acceptance, provide the City with such lien and/or claim releases with respect to the Artwork as the City may require. 2. The City shall notify the Artist in writing of its final acceptance of the Artwork. 3. Final acceptance shall be determined by the City in its sole and absolute discretion. Such acceptance shall constitute the City’s acknowledgement that the Artwork has been completed and installed according to the terms of this Contract. 5 4. Title of ownership of the Artwork shall pass to the City upon final acceptance. In no event shall the final acceptance occur more than 30 days from the date of installation. F RISK OF LOSS 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 necessary to protect the Artwork and the materials relating hereto from loss or damage and to insure the Artwork and the materials relating thereto until final acceptance. 2. The Artist shall maintain appropriate insurance on the Artwork, insuring against potential risk of loss, including but not limited to design, fabrication, transportation and installation, in an amount acceptable and approved by the City’s Risk Manager. The City shall be shown as an additional insured for general liability. ARTICLE II. COMPENSATION A. PAYMENT SCHEDULE 1. The City shall pay the Artist a fixed fee of $180,000 ($90,000 for each) which shall constitute full compensation for all services and materials to be performed and furnished by the Artist under this Contract. The compensation shall be payable as set forth on the Schedule of Compensation attached to this Agreement as Exhibit “C” and incorporated by this reference. 2. For all other expenses for which the City is obligated, payment shall be made 30 days after receipt of written statement. B. FEE STATEMENTS In order to receive the payments described in clauses II. A. 1. and II. A. 2. above, the Artist shall submit a statement to the City. 6 ARTICLE III. TIME OF PERFORMANCE A. CITY DELAY If the Artist is delayed from installing the Artwork by the Installation Date as a result of action taken by the City, the City shall reimburse the Artist for actual transportation and storage costs incurred for the period between the Installation date and date on which the Site is available to permit installation of the Artwork, if and only if, the transportation and storage cost are incurred as a direct result of the delay by the City. The City shall not be responsible for any transportation and storage costs that the Artist would have been required to pay in the absence of delay caused by the City. B. FORCE MAJEURE Except for the City’s obligations to make payments following the Payment Schedule neither party shall be considered in default in the performance of its obligations hereunder if such performance is prevented or delayed because of war, hostilities, revolution, civil commotion, strike, lock-out, epidemic, accident, fire, wind, catastrophic event or flood or because of any law, order, proclamation, regulation or ordinance of any government or of any subdivision thereof or because of any act of God or any other cause beyond the reasonable control of the party affected (“Force Majeure Event”); provided that the affected party shall have used its best efforts to avoid such condition and, provided further, that notice of such Force Majeure Event is given by the affected party to the other within five (5) days of said Force Majeure Event. Should one or both of the parties be prevented from fulfilling their contractual obligations because of a Force Majeure Event lasting continuously for a period of at least six (6) months, the parties shall consult with each other regarding the future implementation of this Agreement. The parties agree to use their best efforts to minimize any delays and/or losses, if any, resulting from such Force Majeure Event. C. ASSIGNMENT In the event of the serious illness or death of the Artist during the construction and/or the installation of the Artwork, his heirs, family and estate will in no way be responsible for the completion of the unfinished Artwork nor 7 shall they be entitled to the compensation for uncompleted Artwork due under this contract. The National Sculptors’ Guild shall be responsible for the completion of the Artwork, subject to the written approval of the City. ARTICLE IV. WARRANTIES A. WARRANTIES OF TITLE 1. The Artist represents and warrants that: a. the Artwork is solely the result of the artistic and creative efforts of the Artist; b. except as otherwise disclosed in writing to the City, the Artwork is unique and original and does not infringe upon any Copyright; and c. the Artwork is free and clear of all liens from any source whatsoever. 2. The warranties described in this Section A shall survive for so long as the City or any successor of City owns the Artwork. B. WARRANTIES OF QUALITY AND CONDITION 1. The Artist represents and warrants that: a. the Artwork, as fabricated and installed, will be free of defects in material and workmanship, including any defects of “inherent vice” or qualities which may cause or accelerate deterioration of the Artwork; and b. reasonable maintenance of the Artwork will not require procedures in excess of those described in Article I, Section D, subsection 2. 2. The warranties described in this Section shall survive for a period of one (1) year after final acceptance of the Artwork. The City shall give notice to the Artist of any observed breach of these warranties with reasonable promptness. The Artist shall, at the request of the City, and at no cost to the City, cure reasonably and promptly the breach of any such warranties, which is curable and which cure is consistent with professional conservation standard (including, for example, cure by means of repair or refabrication of the Artwork). 8 3. The Artist shall not be responsible for any damage inflicted on the Artwork by third parties or outside forces, whether man-made or from natural causes, which exceed those that the design of the Artwork should reasonably tolerate. 4. After final acceptance of the Artwork by the City, the City shall hold the Artist harmless from any and all liability or personal injury to the public, except to the extent covered by the warranties of Article IV, Section B.1. ARTICLE V. OWNERSHIP OF ARTWORK AND COPYRIGHT A. GENERAL 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. If the Artist objects to the new location, the only remedy available to the Artist is to request in writing that the City remove the identification plaque referred to in Article I, Section D, subsection 3 herein, and that the City not promote the Artwork as that of the Artist. Provided however, this provision in no way prohibits the City from truthfully responding to inquiries, oral and written, as to the name of the Artist. The Artist shall not unreasonably object to a change of location or alteration of the site. IDENTITY OF ARTIST The Artist grants to the City and its assigns an irrevocable license to make two-dimensional reproductions of the Artwork for non-commercial purposes, including but not limited to reproductions used in advertising, brochures, media publicity, and catalogues or other publications, provided that these rights are exercised in a tasteful and professional manner. All two-dimensional reproductions of the Artwork by the City shall contain a credit to the Artist substantially in the following form: Artists Name, Jane Dedecker Date: December 8th 2010 9 B. NOTICES All notices required herein shall be in writing and served upon the parties as follows: Jane Dedecker 1503 West 8th Street Loveland, CO 80537 (970) 663 5727 City of Southlake Assistant City Manager: Jim Blagg Project Manager: Kerry McGeath City address: 1400 Main Street, STE 440 Southlake, TX 76092 Phone no: 817 748 8384 All notices required herein shall be deemed served when mailed by First Class Mail, Certified Mail, postage prepaid, to each party’s last known mailing address. It is the responsibility of each party to inform the other of a change in address. If notice cannot be served due to a change in address, which has not been served upon the other party, such party’s failure to notify shall be deemed a waiver of notice. ARTICLE VI. SUBSEQUENT EVENTS A. MAINTENANCE The City and the Artist recognize that maintenance of the Artwork on a regular basis is essential to the integrity of the Artwork. Therefore, the City shall assure regular maintenance according to the instructions supplied by the Artist as set forth herein under Article I, Section D.2. and may take action reasonably designed to protect the Artwork against vandalism. B. REPAIRS AND RESTORATION After final acceptance of the Artwork, the Artist may inspect the Artwork at his own expense and shall notify the City in writing as to the necessity of any repairs. The City may in its discretion consult with the Artist and make the noted repairs. All such consultations shall be without additional cost to the City. 10 C. ALTERATION OF THE ARTWORK The City will not consent to the intentional alteration, modifications of change to the Artwork. The City shall retain the right to sell or donate the Artwork to a third party. D. ALTERATION OF THE SITE The City shall notify the Artist of any proposed significant alterations of the Site. The Artist may at his sole expense request copies of plans detailing proposed alterations to the Site. If such alterations cannot be undertaken to the reasonable satisfaction of the Artist, he may request the public notice referred to in Article I, Section D.3. be removed and otherwise proceed in accordance with Article V. Section A. E. WAIVER OF RIGHTS The Artist understands and agrees that the provisions of this Article VI shall control over the provisions of 17 U.S.C. – 106A (a), known as the Visual Artist Rights Act of 1990 (“VARA”), and other laws granting the Artist any “moral rights” or similar rights as to the Artwork, and shall constitute a waiver by the Artist of any rights with the exception of copyright, in the Artwork set out in or otherwise granted by 17 U.S.C. – 106A (a) or in such other laws. ARTICLE VII. INDEPENDENT CONTRACTOR The Artist performs this contract as an independent contractor and not as an agent or an employee of the City. The Artist shall maintain control; furnish all supervision, labor, materials, equipment, supplies, other incidentals, as well as transportation, shipping and installation of the Artwork. ARTICLE VIII. ASSIGNMENT The Artwork and services required of the Artist, Jane Dedecker, under this Contract are personal and shall not be assigned, sublet or transferred. However, the Artist shall be allowed to employ qualified personnel who shall Artwork under the Artist’s supervision. 11 ARTICLE IX. INDEMNIFICATION The Artist shall defend, release, indemnify and save and hold harmless the City against any and all damages to property or injuries to or death of any person or persons, and shall defend, release, indemnify and hold harmless the City from any and all claims, demands, suits, liabilities, actions, causes of actions, or legal or equitable proceedings of any kind or nature, including reasonable attorney’s fees incurred by legal counsel of the City’s choice, or by anyone whomsoever, in any way resulting from or arising out of the Artist’s activities in connection with this Contract, including acts of omissions of the Artist or persons acting under the Artist’s control. ARTICLE X. TERMINATION & MEDIATION A. TERMINATION 1. If either the Artist or the City shall willfully or negligently fail to fulfill in a timely and proper manner, or otherwise violate any of the covenants, agreements or stipulations material to this Contract, the other party shall thereupon have the right to terminate this Contract by giving written notice to the defaulting party of its intent to terminate and specifying the grounds for termination. The defaulting party shall have thirty days (30) after receipt of the notice to cure the default. If the default is not cured within such time period, this Contract shall terminate. 2. In the event of a default by the City, the City shall promptly compensate the Artist pursuant to Article II for all services performed by the Artist prior to termination, and all finished and unfinished drawings, sketches, photographs and other Artwork products prepared and submitted or prepared for submission by the Artist under this Contract shall at the City’s option become its property, provided that no right to fabricate or execute the Artwork shall pass to the City. 3. In the event of a default by the Artist, Jane Dedecker, shall forfeit the right to any and all remaining payments due under this contract for which Artwork has not been completed as well as any and all copyrights reserved herein and any and all limited edition rights as defined herein. Then and in that event Jane Dedecker shall be responsible 12 for completion of The Artwork, subject to the written approval of the City. B. MEDIATION If, during the creation of the Artwork, its installation and subsequent existence, any disputes should arise between the Artist and the City, the parties hereto will mediate their disagreements and make every effort to affect a mutually satisfactory resolution of the disagreements including the appointment of an independent mediator reasonably acceptable to both parties. If unable to agree, a mediator shall be appointed by the court. Costs will be equally divided. ARTICLE XI. MODIFICATION No alteration, change or modification of the terms of this Contract shall be valid unless made in writing and signed by the parties hereto. ARTICLE XII. CONFLICT OF LAW Any provision of this Contract, which is hereafter found by a court of law or otherwise to be in conflict with the laws, rules, and/or regulations of the United States or the States of Colorado and Texas shall be considered null and void. The valid provisions of this Contract shall be severed from the invalid provisions and remain in effect to the extent possible. The law of the State of Texas shall govern the interpretation of this contract. ARTICLE XIII. CHOICE OF LAW All conflicts, causes of actions and civil disputes shall be filed in the Tarrant County, Texas Superior Court. ARTICLE XIV. EFFECTIVE DATE The effective date of this Contract shall be the date of approval by all parties hereto. ARTICLE XV. COUNTERPARTS FOR SIGNATURE This contract may be executed in duplicate counterparts, each of which shall be deemed an original. 13 Attest to: CITY The City of Southlake, Texas ARTIST Jane Dedecker By: By: Shana Yelverton, City Manager Jane Dedecker, Artist Approved as to Form: By: _____________________________________ Taylor, Olson, Adkins, Sralla, and Elam L.L.P City Attorneys STATE OF TEXAS § 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 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 ________, 2009. ______________________________________________ NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS STATE OF TEXAS: § COUNTY OF TARRANT § BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THIS STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED JANICE HART MELITO KNOWN TO ME TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO 14 THE FOREGOING INSTRUMENT AND ACKNOWLEDGED TO ME THAT SHE EXECUTED THE SAME FOR THE PURPOSE AND CONSIDERATION EXPRESSED GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS ____ DAY OF ________, _____. ______________________________________________ NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS 15 EXHIBIT “A” SCOPE OF ARTWORK & TIMELINE Sculpture The services are to be provided by Jane Dedecker, sculptor,i n the creation of bronze sculptures for the roundabouts at White Chapel and Continental and Dove and White Chapel roads in Southlake Texas per the design approved by the Southlake City Council, JANE DEDECKER 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 sculptures: A. Provide the material for all of the sculptures. B. Jane Dedecker will sculpt the above described sculptures in clay for approval. C. Provide appropriate packing and ship the sculptures to the site. D. Install the sculptures on footings and/or pedestals built by the Contractor. E. Consult with City of Southlake in the design and creation of the Site rooms that will stage the Artwork as necessary. F. Create the drawings and templates for the bas relief as well as any bronze or stainless steel elements of the bas relief. G. Supervise and assist a subcontractor in the creation of the bas relief. Clarifications The cost and construction of the footings and pedestals shall be a part of the Contractors contract. The cost and installation of the stone walls of the outside rooms shall be a part of the Contractors contract. Footings The services are to be provided by the City of Southlake’s Contractor and a part of the construction costs. The City of Southlake’s Contractor will provide all labor and material for the footings and pedestals at the City’s expense. 16 Note: City of Southlake is responsible to provide any and all landscape lighting. Clarifications Should there be any pedestrian barricades required during installation it will be the City of Southlake’s responsibility. 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 Artworking 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. 17 EXHIBIT “B” Task Timeline COS Artist Conceptual drawings Month 1 January 2011 Contract signed Provide final conceptual drawings Begin Work on clay figures Month 1 Through Month 5 Begins work on clay figures and continues that work Clay figures approved and sent to foundry for casting – approve Bronze on return from Foundry Month 5 through 9 On-site visit month 5 Approve clay figures and final bronze on return from foundry Clay figures completed and reviewed by COS – approval for foundry work to begin Supervise casting process at foundry Approve final bronze Final acceptance by project manager and dedication Month 10 October 2011 Final acceptance by project manager and installation Bronze figures delivered and installed 18 SITE 19 20 EXHIBIT “C” SCHEDULE OF COMPENSATION Total due $180,000, payable as follows: • One Third (33.33%) down ($59,994.00) upon execution of the contract, • on or before, February 4th 2011 • One third (33.33%) ($59,994.00) • on or before June 10th 2011 • The remainder ($60,012) upon installation. All payments shall be made within 30 days after receipt of a written statement. All checks shall be made payable to Jane Dedecker Payments received outside of the 30 day payment period shall bear interest at the rate of 1.5% (18% per annum) and the project completion time shall be extended by the number of days the payment is delinquent. 21 EXHIBIT “C” 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 ___________________________, 20____. 22 ________________________________ 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 _______________________, 20___. ________________________________ Notary Public in and for The State of ___________ My commission expires: ____________ 23 24 M E M O R A N D U M December 1, 2010 TO: Southlake Arts Council FROM: Jim Blagg, Assistant City Manager - Operations SUBJECT: Recommendation on Display of Public Arts Policy Action Requested: Arts Council recommendation on the Display of Public Arts Policy Background Information: The Arts Council reviewed the policy draft in their last meeting and indicated a couple of minor revisions related to allowing for extensions and how to deal with artists selling art while on display and fund raising events – all of which have been addressed in the document included for your consideration Financial Considerations: N/A Citizen Input/ Board Review: Southlake Arts Council review and recommendation December 14, 2010. City Council will consider the Agreement at their January 4, 2011 meeting. Legal Review: N/A Alternatives: Alternatives may include the following: • Arts Council recommendation to approve proposed agreement as presented • Arts Council recommendation to approve proposed agreement with input as desired • Arts Council recommendation not to approve the proposed agreement Supporting Documents: • Proposed Public Art Display policy, including Art Exhibit Agreement and Performance Use Permit Southlake Arts Council Meeting Date – December 14, 2010 Page 2 of 2 Recommendation: Southlake Arts Council recommendation to City Council to approve the proposed Public Art Display policy Display of Public Art policy Placement of art exhibits at public facilities or other city property: Planned Visual Art Exhibits, temporary - A duration of three and not to exceed six weeks to occur no more then 5 times per year. Two of which would be reserved for CISD student art. Southlake Arts Council would present up to 3 Call to Artists per annum and per the Call to Artist SOP would select the artist (s) to present during these planned periods. Dates for presentation will be determined by the Southlake Arts Council. Exhibits will be managed and maintained by City of Southlake staff liaison with the Southlake Arts Council. City department displays, events or programs will be available for Southlake Arts Council review, but not approval, all other applications will require Southlake Arts Council review and approval. Ad Hoc Visual Arts Exhibit, temporary – A duration of three and not to exceed 7 days to occur when space is determined by staff to be available. As opposed to the planned exhibits these would be initiated by the Public or City of Southlake staff. Facility Arts display/performance form will need to be submitted to staff Southlake Arts Council liaison at least 6 weeks in advance of the showing for scheduling purposes, and review by the Southlake Arts Council. Southlake Arts Council will review and approve or deny all applications in order to determine appropriateness of the application in a requested venue. Exhibits will be managed and maintained by City of Southlake staff liaison with the Southlake Arts Council. City department displays, events or programs will be available for Southlake Arts Council review, but not approval, all other applications will require Southlake Arts Council review and approval. Performing Arts Programs , temporary – Limited to single performances. Facility Arts display/performance form will need to be submitted to the Southlake Arts Council liaison at least 4 weeks in advance of the showing for scheduling purposes, and review/approval by the Southlake Arts Council. City sponsored performances in City facilities that are not generally used for programming will be the responsibility of the department or division sponsoring or providing the event. The sponsoring department or division is responsible for submitting proper forms to the Southlake Arts Council liaison. City department displays, events or programs will require Southlake Arts Council review, but not approval; all other applications will require Southlake Arts Council review and approval. Donated Art to be placed in public facilities - Will be reviewed by the Southlake Arts Council and a recommendation will be made to the City Council for placement of the Art in a city facility or on city property. Credence and a clear preference will be given to location indicated by donor, but the City Council will make any and all final determinations on placement. Purchased Public Art – The placement and purchasing process of the Southlake Arts Council will be followed. The Southlake Arts Council will recommend placement and art to the City Council who will make any and all final determinations on the said placement and the art/artists Art Exhibit Agreement – Art displayed on a temporary basis will require that the artist and the City of Southlake sign an agreement that determines the length of time for displays. Key components are: Artwork and Agency: Artists agrees to at no cost to the city lend his/her artwork for temporary display Installation and Curatorship: Artist shall deliver the Artwork in a form that is ready for immediate display. Artist’s assumption of Liability and Waiver removal of Artwork: Artist acknowledges and agrees that the City will not provide security for the exhibition, including without limitation, set up, operation and tear down of the exhibit, and City should not, for any reason, be liable for lost, stolen, or damaged Artwork and/or any related materials associated or used with the exhibit. Conflicting events: City will coordinate scheduling of exhibits. Should a conflict arise between the exhibit and a function by the City, the City’s event and/or function would take precedence. Facility Arts display performance use permit: Form is based on the park use permit and is required to be filled out and processed by staff for the Southlake Arts Council review 6 weeks prior to display, with the exception of art displays or performances initiated by city departments or divisions, which will be coordinated with the Southlake Arts Council staff liaison for scheduling purposes. Extensions can be requested for both ad-hoc and planned art displays for a period to be determined by city staff that administer the arts program and will be based on but not limited to the following: Upcoming displays, City Managers office requests and other staff determined administrative needs. Sales of displayed art work: Art work that is displayed can be made available for sale by the artist but the artist or their representative can not actively solicit the sales of art other then passively indicating (discreetly) the price and the artists contact information on the art itself. The city will not be involved in any such transactions and will not solicit sales of items on behalf of an artist or their agents. Art displayed and sold for fundraising: Art can be displayed and sold as part of a fundraising event but the fundraising can only occur actively at specific events that need to be negotiated with the City. The art can be continuously displayed but city facilities will not be a site for continuous/ongoing fundraising. Fundraising events can only be for non-profit organizations Definitions: A. Arts in public places – Any art displayed, performed, or demonstrated in City parks, rights-of-ways, or the interior/exterior of any City facility. B. Artwork – Includes, but is not limited to, a sculpture, monument, mural, painting, fountain, or stained glass. C. Artist – A practioner in the visual and/or performing arts, generally recognized by critics and peers as a professional of serious intent and recognized ability that produces fine works of arts. E. City – Shall mean the City of Southlake, Texas. F. Deaccensioning – The removal, relocation, selling, auctioning, or trading of artworks owned by the City. G. Donations (and Gifts) – Arts donated to the City from a private individual or institution and/or other outside sources. H. Loan – Works of arts provided to the City to display for a predetermined period of time and to be returned to the owner after the loan period has expired. I. Southlake Arts Council, a board appointed by the City Council that makes recommendations to the City Council regarding the public arts program. J. Permanent arts in public places - Any visual work of arts displayed in City parks, rights-of-ways, or the interior/exterior of any City facility. K. Donor - An individual, private company, community group, or other organization who places artwork in City parks, rights of ways, the interior or exterior of any City facility and/or private facilities and/or properties. L. Public Arts Collection – Consists of all City of Southlake owned or controlled fine works of arts. M. Art Exhibit Agreement – Agreement that will exist between the City of Southlake and artists who display temporary exhibits in city facilities or on city property O. Temporary arts in City facilities or property – any visual or performing work of art in city facilities or property. P. Facility Arts display performance use permit - Form is required to be filled out and processed by staff for Arts Council review 6 weeks prior to display, with the exception of art displays or performances initiated by city departments or divisions, which will be coordinated with the Southlake Arts Council staff liaison for scheduling purposes. ART EXHIBIT AGREEMENT BY AND BETWEEN THE CITY OF SOUTHLAKE, TEXAS, AND (Artist)_________________________________________ This Art Exhibit Agreement (“Agreement”) is made and entered into this ___ day of__________________, by and between the City of Southlake, Texas (“City”), a Home-Rule Municipal Corporation and __________________________________ (“Artist”) on the terms and conditions set forth below. WHEREAS, the Exhibition is anticipated to be held from __________through ___________and any additional dates agreed to in writing; and WHEREAS, the Exhibition will be located at a facility of the City of Southlake WHEREAS, in exchange for the promotion of the arts, Artist desires to lend, at no cost to City, his/her Artwork (hereinafter defined) for display at the Exhibition as set forth below; and WHEREAS, City has investigated and determined that it would be beneficial and in the best interests of the City and its citizens to allow the Artist to place the Artwork at City Hall to promote visual arts in t he City on the terms and conditions set forth below. NOW, THEREFORE, for and in consideration of the premises and the mutual promises, covenants, and agreements hereinafter set forth, Artist and City agree as follows: 1. Artwork and Agency. Artist agrees to, at no cost to City, lend his/her Artwork, as more particularly described and/or depicted on Exhibit A, attached hereto and incorporated herein for all purposes, for display at the Exhibition (“Artwork”). All modifications or additions to Exhibit A shal l be in writing, signed by both parties, and attached to this Agreement. Artist and City agree that City is not, under any circumstance, acting as Artist’s agent, dealer and/or exclusive seller. The parties acknowledge and agree that the Exhibition is the sole and exclusive event of the City in its promotion of public art. 2. Delivery/Loan Period. Artist hereby agrees to loan the Artwork to City from __________through___________. Artist shall, at his/her sole cost and expense, be responsible for delivery a nd removal of the Artwork from the Exhibition, said removal to occur no later than ___________(“Removal Date”). Artist acknowledges and agrees that space is limited in City Hall and that all artwork submitted for display during the Exhibition is subject to the review and approval of the Southlake Arts Council. 3. Installation and Curatorship. Artist shall deliver the Artwork in a form that is ready for immediate display. Two -dimensional (“2D”) Artwork shall be wired for hanging and three dimensional (“3D”) artwork must be ready for installation immediately upon delivery to the Exhibition. Artist shall tape the following information on the back of 2D pieces and attach temporarily to 3D pieces: Artist’s name, title of piece, and medium. The Artwork must be approved, in its sole discretion, by the Southlake Arts Council. 4. Artist Assumption of Liability and Waiver/Removal of Artwork. Artist acknowledges and agrees that City will not provide any security for the Exhibition, including, without limitation, set up, operation and teardown of the Exhibition, and City shall not, for any reason, be liable for any lost, stolen and/or damaged Artwork and/or the related materials, equipment and/or any other items associated and/or used in conjunction with the Artwork and/or Exhibition. ARTIST HEREBY RELEASES CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES AND EMPLOYEES, FROM, AND WAIVES ANY AND ALL RIGHTS TO ANY AND ALL CLAIMS FOR DAMAGES, OR OTHERWISE, HE/SHE MAY HAVE WITH REGARD TO LOST, STOLEN AND/OR DAMAGED ARTWORK AND/OR RELATED MATERIALS, EQUIPMENT AND/OR ANY OTHER ITEMS ASSOCIATED AND/OR USED IN CONJUNCTION WITH THE ARTWORK AND/OR EXHIBITION. Should Artist fail to remove the Artwork by the Removal Date, City shall have the right to dispose of the Artwork and any other items related thereto in any manner deemed appropriate solely by City. Artist shall be responsible for any and all costs and expenses associated with City’s removal of the Artwork and/or the related materials, equipment and/or any other items associated and/or used in conjunction with the Exhibition as provided in this Paragraph. ARTIST HEREBY RELEASES CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES AND EMPLOYEES, FROM, AND WAIVES ANY AND ALL RIGHTS TO ANY AND ALL CLAIMS FOR DAMAGES, OR OTHERWISE, HE/SHE MAY HAVE WITH REGARD TO, CITY’S REMOVAL OF THE ARTWORK AND/OR RELATED MATERIALS, EQUIPMENT AND/OR ANY OTHER ITEMS ASSOCIATED AND/OR USED IN CONJUNCTION WITH THE EXHIBITION AS PROVIDED IN THIS PARAGRAPH. 5. Photographic Rights. Artist hereby grants permission to City to photograph and/or videotape and/or to authorize others to photograph and/or videotape the Artwork and Exhibition for any non-commercial use, including but not limited to, installation documentation, publicity of the Artwork and/or Exhibition, record keeping and additional non-commercial purposes such as, among others, educational, public relations and promotion of the arts. 6. Representations and Warranties Regarding Copyright. Artist hereby warrants and represents that the Artwork is an original creation of Artist and will not infringe the copyright, trademark or other intangible rights of any third party. 7. Termination/Waiver of Damages. This Agreement may, at any time, be terminated for any reason or no reason at all. Should City terminate this Agreement, ARTIST HEREBY RELEASES CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, SERVANTS, REPRESENTATIVES AND EMPLOYEES, FROM, AND WAIVES ANY AND ALL RIGHTS TO ANY AND ALL CLAIMS FOR DAMAGES, OR OTHERWISE, HE/SHE MAY HAVE WITH REGARD TO CITY’S TERMINATION OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ACTUAL AND/OR CONSEQUENTIAL DAMAGES. 8. Conflicting Events. City will coordinate the scheduling of the Exhibition so as not to conflict with any event and/or function of the City. Should a conflict arise between the Exhibition and an event and/or function of the City, the City’s event and/or function shall take precedence over the Exhibition. 9. No Security/Waiver of Damages/Liability. Artist acknowledges and agrees that City will not provide any security for the Exhibition, including, without limitation, set up, operation, viewing by the public and/or removal of the Artwork at the conclusion of the Exhibition, and City shall not be liable for any lost, stolen and/or damaged property, materials, equipment and/or the Artwork and any other items associated and/or used in conjunction with the Exhibition and/or Artwork. ARTIST HEREBY RELEASES CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES AND EMPLOYEES, FROM, AND WAIVES ANY AND ALL RIGHTS TO ANY AND ALL CLAIMS FOR DAMAGES, OR OTHERWISE, IT MAY HAVE WITH REGARD TO LOST, STOLEN AND/OR DAMAGED PROPERTY, MATERIALS, EQUIPMENT AND/OR THE ARTWORK AND ANY OTHER ITEMS ASSOCIATED AND/OR USED IN CONJUNCTION WITH THE EXHIBITION AND/OR ARTWORK. 10. Indemnification. ARTIST SHALL DEFEND, INDEMNIFY, SAVE HARMLESS, AND EXEMPT CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES, SERVANTS AND EMPLOYEES FROM AND AGAINST ALL LAWSUITS, ACTIONS, LEGAL PROCEEDINGS, CLAIMS, DEMANDS, DAMAGES, COSTS, EXPENSES, AND ATTORNEYS’ FEES INCIDENT TO THE PERFORMANCE OF THIS AGREEMENT AND /OR THE SET UP, OPERATION, VIEWING BY THE PUBLIC AND/OR REMOVAL OF THE ARTWORK AND ARISING OUT OF A WILLFUL AND/OR NEGLIGENT ACT AND/OR OMISSION OF THE CITY AND/OR ARTIST, THEIR RESPECTIVE OWNERS, OFFICERS, PARTNERS, AGENTS, SERVANTS, REPRESENTATIVES, CONTRACTORS, SUBCONTRACTORS, VOLUNTEERS AND/OR EMPLOYEES. This Paragraph shall survive the termination of this Agreement. 11. Entirety of Agreement, Governing Jurisdiction and Mediation. This Agreement constitutes the entire Agreement between the parties. No modification will be enforceable except in writing and signed by both parties. This Agreement is governed by the laws of the State of Texas. In the event that any dispute arising under this Agreement results in litigation or mediation, such action or proceeding will be brought exclusively with the state court of Tarrant County, Texas. 12. Reference to Artist. When referring to Artist herein, this Agreement shall refer to and be binding upon Artist, his/her agents, representatives, servants, employees, volunteers and assigns. 13. Reference to City. When referring to City herein, this Agreement shall refer to and be binding upon the City of Southlake, its Council Members, officers, agents, representatives, servants, employees and assigns. 14. Compliance with Laws. Artist shall comply with any and all local, state and federal ordinances, rules, laws and regulations, as they currently exist, may be amended or in the future arising. 15. Default. In the event Artist fails to comply with any of the provisions of this Agreement, City shall have the following remedies, in addition to City’s other rights and remedies: a. to immediately terminate this Agreement without any liability to City as previously provided herein; and/or b. to require the immediate cessation of the set up, operation and/or removal of the Artwork and/or Exhibition. 16. Miscellaneous Provisions. a. 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, and the parties do not intend to create any third party beneficiaries by entering into this Agreement. b. Assignment. This Agreement is not assignable without the prior written consent of City. c. Notices. Any notice provided or permitted to be given under this Agreement must be in writing and may be served by depositing same in the United States Mail, addressed to the party to be notified, postage pre-paid and registered or certified with return receipt requested, or by delivering the same in person to such party via a hand-delivery service, Federal Express or any courier service that provides a return receipt showing the date of actual delivery of same to the addressee thereof. Notice given in accordance herewith shall be effective upon receipt at the address of the addressee. For purposes of notice, the addresses of the parties shall be as follows: If to Artist, to: Artist Attn: ___________________ ________________________ ________________________ If to City, to: City of Southlake Attn: City of Southlake Public Arts Liaison 1400 Main Street # 130. Southlake, Texas 76092 d. Sovereign Immunity. The parties agree that City has not waived its sovereign immunity by entering into and performing its obligations under this Agreement. e. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the matters contained herein and may not be modified or terminated except upon the mutual written agreement of the parties hereto. f. Execution. This Agreement is executed by the parties hereto without coercion or duress and for substantial consideration, the sufficiency of which is forever confessed. g. 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. h. Authority to Execute. The individuals executing this Agreement on behalf of the respective parties below represent to each other and to others 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 hereof. i. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns, as allowed herein. j. Savings/Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision thereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. k. Miscellaneous Representations. Each signatory represents this Agreement has been read by the party for which this Agreement is executed and that such party has had an opportunity to confer with its counsel. l. Miscellaneous Drafting Provision. 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. Headings in this Agreement are for the convenience of the parties and are not intended to be used in construing this document. m. 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. 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. CITY: _______________________ The City of Southlake , Texas 6101 Southlake Square Blvd. Southlake , Texas 75034 972.292.5100 ARTIST: _______________________________ _______________________________ _______________________________ _______________________________ Southlake Arts Council Public Art display and/or performance Facility and Property Use permit Please Note: All requests are taken on a first-come, first -served basis. Art Exhibit agreement is also required to be signed before any display or performance may occur. Extensions may be granted by staff. City Facility requested__________________________________________________________________ ____________________________________________________________________________________ CONTACT INFORMATION Personal Responsible: ___________________________ Phone: _______________________________ Cell Phone: _________________________ E-Mail Address: ________________________________ Address: _____________________________ City ___________________________ State ________ Zip ________ Alternative Contact: Name: ____________________________________________________________________________ Phone Number: ________________________________ E-mail: ________________________________ DISPLAY or PERFORMANCE INFORMATION Requested Date: ______________________________________________________________________ Type of Display or performance: __________________________________________________________ Detailed Information about the display or performance, including planned activities or any equipment/special needs: _______________________________________________________________ ____________________________________________________________________________________ ____________________________________________________________________________________ Organization Represented: ______________________________________________________________ Non-Profit: Yes _______ No _______ Is this display or performance to include a fund raiser? Yes ________ No ________ Note: Must provide at least 6 weeks notice and cannot be a continuous fundraising effort throughout the duration of the exhibit, but must occur in a specific event(s) If YES, please answer the following: Does your organization maintain a Southlake Mailing address or PO Box? Yes _____ No ______ Do a majority of your members, including officers, reside in Southlake? Yes _____ No ______ Will your event cause any impact on City Staff or City resources? Yes _____ No ______