Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Item 4F
City of Southlake, Texas MEMORANDUM January 16, 2009 TO: Honorable Mayor and Members of the City Council FROM: Jim C. Blagg, Assistant City Manager /Director of Public Safety SUBJECT: Approve contracts with Archie St. Clair in the amount of $280,000 and Liz Bonham in the amount of $5,000 to provide art for the new DPS Headquarters Action Requested: Approve contracts with Archie St. Clair in the amount of $280,000 and Liz Bonham in the amount of $5,000 to provide art for the new DPS Headquarters Background Information: The Crime Control and Prevention District Board created a subcommittee to recommend art for the new DPS facility. The committee created review criteria, and through a call to artists received twenty one responses. Following a detailed review of the proposals that number was cut to seven for detailed responses. The Committee then reviewed those responses and chose a sculpture and painting with a particular artist to do each. The subcommittee then presented their choices to the Crime Control Board who subsequently affirmed their recommendations. This item is the approval of the contracts for the artists that were chosen. Financial Considerations: Funding for the project will come from the Crime Control and Prevention District Board and will be the allowed 1% of the proposed construction cost to be at or about $285,000. Citizen Input/ Board Review: Southlake Arts Council voted unanimously to recommend the contract template for approval. The Crime Control and Prevention District Board recommended these contracts to Council at their January 13, 2009 Board meeting on a vote of 6 -0. Legal Review: Completed by City Attorneys. Alternatives: Reject contracts and do another call for artists. Do not place public art at the DPS Headquarters. Supporting Documents: Artists' Contracts Staff Recommendation: Approve contracts with Archie St. Clair in the amount of $280,000 and Liz Bonham in the amount of $5,000 to provide art for the new DPS Headquarters AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND ARCHIE ST CLAIRE (ARTIST) CREATION OF SCULPTURES FOR THE CITY OF SOUTHLAKE DEPARTMENT OF PUBLIC SAFETY HEADDQUARTERS made as of the day of in the Year 2009 BETWEEN the City: The City of Southlake, Texas 1400 Main Street, Ste 440 Southlake, Texas 76092 Telephone 817 748 8384 Facsimile 817 748 8250 and the Artist(s): Archie St Clair 701 S. Main Street Grapevine, TX 76051 Telephone 817 -966- 2229 for the following Project or Creation of sculptures for the City of Southlake Department of Artwork: Public Safety Headquarters The City and the Artist agree as set forth below. THIS AGREEMENT is made and entered by and between the City of Southlake, Texas, a Home -Rule Municipal Corporation located in Tarrant and Denton County Texas, hereinafter referred to as "City ", and Archie St. Clair hereinafter referred to as "Artist", to be effective from and after the date as provided herein, hereinafter referred to as the "Agreement ". WHEREAS, the City desires to engage the services of the Artist to create a sculpture for the main entry to the Department of Public Safety Headquarters, and another sculpture to be placed on a pedestal within an interior courtyard of the stricture. WHEREAS, the Artist desires to render such services for the City upon the terms and conditions provided herein. NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS: That for and in consideration of the covenants contained herein, and for the mutual benefits to be obtained hereby, the parties hereto agree as follows: ARTICLE 1 ARTIST'S SERVICES 1.1 Emplovment of the Artist - The City hereby agrees to retain the Artist to perform the services set forth herein in connection with the Project. Artist agrees to perform such services in accordance with the terms and conditions of this Agreement. 1.2 Scope of Services - The parties agree that Artist shall perform such services as are set forth and described in Exhibit "A ", which is attached hereto and incorporated herein by reference for all purposes. The parties understand and agree that deviations or modifications to the scope of services described in Exhibit "A ", in the form of written change orders, may be authorized from time to time by the City. 1.3 Schedule of Work - The Artist agrees to commence work immediately upon execution of this Agreement and receipt of first payment, and to proceed diligently with said work to completion as described in the Completion Schedule/Project Billing/Project Budget attached hereto as Exhibit `B" and incorporated herein by reference for all purposes. ARTICLE 2 THE CITY'S RESPONSIBILITIES 2.1 Proiect Data - The City shall furnish required information, that it currently has in its possession, as expeditiously as necessary for the orderly progress of the work, and the Artist shall be entitled to rely upon the accuracy and completeness thereof. 2.2 Citv Proiect Manager -The City shall designate, when necessary, a representative authorized to act on the City's behalf with respect to the Project (the "Project Manager"). The City or such authorized representative shall examine the documents submitted by the Artist and shall render any required decisions pertaining thereto as soon as practical so as to avoid unreasonable delay in the progress of the Artist's services ARTICLE 3 ARTIST'S COMPENSATION 3.1 Compensation for Artist's Services - As described in "Article 1, Artist's Services ", compensation for this Project shall be two hundred and eighty thousand dollars and no cents ($280,000.00) ( "Artist's Fee ") and will cover all services to be rendered and materials to be provided in accordance with this Agreement. The Artist's Fee shall be paid in accordance with Article 3 and the Completion Schedule/Project Billing/Project Budget as set forth in Exhibit 'B ", attached hereto. The final twenty percent (20 %) of the Artist's Fee, or fifty six thousand dollars and no cents ($56,000.00) shall not be paid until the Artist has completed, delivered and installed, where applicable, all of the Artwork services and tasks described in Exhibits "A" and "B ", attached hereto. The artist will also be required to fill out the proper paperwork to become an approved vendor for the City of Southlake before payments will commence. 3.2 Invoices — No payment to the Artist shall be made until Artist tenders an invoice to the City. Payments are payable to the Artist within thirty (30) days from the date of invoice as long as the invoice is mailed to City within three (3) days of the date of the invoice. Invoices are to be mailed to City immediately upon completion of each individual task listed in Exhibit "A ". If any invoice remains outstanding and unpaid for more than sixty (60) days from the date of invoice, and Artist has fully performed its obligations as set forth herein, the Artist has the option upon written notice to the City, to suspend all work specified under this Agreement until the account is brought current. Continued performance and/or completion of work by the Artist under this Agreement shall resume upon the payment of the earned fees by the City. 3.3 Failure to Pav - Failure of the City to pay an invoice, for a reason other than cause, to the Artist within sixty (60) days from the date of the invoice shall grant the Artist the right, in addition to any and all other rights provided, to, upon written notice to the City, refuse to render further services to the City and such act or acts shall not be deemed a breach of this Agreement. The City shall not be required to pay any invoice submitted by the Artist if the Artist breached any provision(s) herein. 3.4 Ad dousted Compensation - If the Scope of the Project or if the Artist's services are materially changed, the amounts of the Artist's compensation shall be equitably adjusted as approved by City. Any additional amounts paid to the Artist as a result of any material change to the Scope of the Project shall be agreed upon in writing by both parties before the services are performed. 3.5 Proiect Suspension - If the Project is suspended or abandoned by the City in whole or in part for more than three (3) months, Artist shall be entitled to compensation for any and all work completed to the satisfaction of City in accordance with the provisions of this Agreement prior to suspension or abandonment. In the event of such suspension or abandonment by the City, Artist shall deliver to City all finished or unfinished documents, data, studies, surveys, drawings, maps, models, reports, photographs and/or any other items prepared by Artist in connection with this Agreement prior to Artist receiving final payment. If the Project is resumed after being suspended for more than three (3) months, the Artist's compensation shall be equitably adjusted as approved by the City. Any additional amounts paid to the Artist after the Project is resumed shall be agreed upon in writing by both parties before the services are performed. ARTICLE 4 OWNERSHIP AND COPYRIGHT 4.1 Ownership of Work - The Project is the property of the City, and the Artist shall not make any duplicate work of the same or substantially similar size, nor shall the Artist grant permission to others to do so except with the written permission of the City. The City shall be entitled to copies of the plans, which are prepared by the Artist in connection with the development and fabrication of the Project under this Agreement. The ownership of the sculpture is transferred to the City upon full payment of Artwork described in Exhibits "A" and "B" attached hereto. 4.2 Ownership of Copyright - Artist shall retain the copyright to the Artwork. Artist shall take all steps, at his own expense, to protect the copyright of the Artwork. 4.3 License to City - The Artist irrevocably licenses the City, its employees, representatives, officers and agents, the right to make photographs, two dimensional reproductions, and adaptations of the work for educational, public relations, arts promotional and other non - commercial purposes. For the purposes of this Agreement, the following, among others, are deemed to be reproductions and /or adaptations for non - commercial purposes: reproduction in exhibition catalogues, websites, books, slides, photographs, postcards, posters, and calendars; in magazines, books, art and news sections of newspapers; in general books and magazines not primarily devoted to art but of an educational, historical or critical nature; slides, videos and film strips not intended for a mass audience, and television from stations operated for educational purposes or on programs for educational and news purposes from all stations. 4.4 Copyright Notice — The City undertakes to use its reasonable efforts to include in any reproductions which it makes of the Artwork a copyright notice in the following form: Copyright Archie St Clair or © Archie St Clair 4.5 Representations and Warranties Regarding Copyright — The Artist represents and warrants that the Artwork is an original creation of Artist's and will not infringe the copyright, trademark, or other intangible rights of any third party. ARTICLE 5 FABRICATION 5.1 Specifications — Artist will create the Artwork, or cause it to be fabricated, in substantial conformity with the Design approved by City as set forth in Exhibit "A ". 5.2 Changes — Any significant changes to the Artwork by either Artist or as requested by City will be approved in writing by the other party. For purposes of this Agreement, a "significant change" will mean any change, including but not limited to, a change in the scope, design, color, size, or material of the Artwork, which affects cost, installation, site preparation, maintenance and concept as represented in the Design described in Exhibit "A ". If Artist wishes to make a significant change to the Artwork, he must request written approval of the change in writing at the address provided in Article 14. The Southlake Arts Council Board and the Crime Control and Prevention District Board will act on the request at the first available meeting, and the City will provide a written response within thirty (30) calendar days of receipt of the request. 5.3 Review of the Artwork — The City will be given access to the Artwork during reasonable business hours at Artist's or fabricator's studio in order to review the Artwork and Artist's or fabricator's progress with fabrication of the Artwork. Alternatively, the City requests and shall be given photographic documentation of Artist's progress to verify each stage that triggers payment pursuant to Section 3.1 above. 5.4 Notification of Fabrication Completion — Artist will notify the City in writing in the manner provided in Article 14 below when the Artwork is completed and ready for delivery. Designated representatives of the City will have the opportunity to inspect the Artwork for conformity with the design and structural requirements of this Agreement prior to delivery and to give written approval or disapproval of the Artwork within thirty (30) business days following notice from the Artist. As an alternative to the studio inspection, photographic documentation may be submitted to the City upon completion of the Artwork. 5.5 Preparation of Site — Regarding installation of the Artwork, cooperation from the City's designated staff and contractor is required. City will provide Artist with the specifications and drawings for the specific area at the site where the Artwork is to be installed. Artist is responsible for obtaining and forwarding to City design drawings and calculations for the installation of the Artwork. The drawings will illustrate the Artwork's support system, including without limitation, connection to the base. The designated city staff member will utilize these drawings and if, during installation, the Artwork is found to differ from the specifications noted in the drawings, it will be the Artist's responsibility to remedy the discrepancy and bring the Artwork into conformance with the drawings. 5.6 Warrantv of Craftsmanship –The Artist warrants that the Artwork will be free of defects in workmanship and materials. In the event that any defects become apparent in the workmanship or materials within five (5) years of the execution of this Agreement, Artist will remedy any defects at Artist's sole cost and expense. ARTICLE 6 STORAGE 6.1 Storage Costs -- Artist will make all efforts to coordinate installation such that the Artwork will not need to be stored prior to installation. If the Artwork is to be installed within fourteen (14) days of its delivery date to the designated site, and is to be stored temporarily at a location at the site, the Artist is responsible for ensuring the safety of the Artwork until the permanent installation is completed. The Artist will be responsible for any and all costs associated with storing the Artwork, including but not limited to, the cost of transporting the Artwork to and from the storage facility, from the date mutually agreed upon in writing by the Artist and City for delivery to the site until the Artwork is permanently installed. If, for reasons outside of the control of the Artist, the Artwork will not be able to be permanently installed within fourteen (14) days of its arrival date on site, as mutually agreed upon in writing by the Artist and City, and it is necessary to store the Artwork for more than fourteen (14) days prior to the permanent installation, the City must notify the Artist prior to delivery of the Artwork to the site. Storage of the Artwork will be at a location mutually agreed upon in writing by the Artist and City. Any and all costs associated with storing the Artwork, including but not limited to, the cost of transporting the Artwork from the storage facility, shall be apportioned between City and Artist as follows: • first day (as mutually agreed upon in writing by Artist and City for delivery to the site) of storage through day 14— Artist • day 15 until the date the Artwork is permanently installed- -City 6.2 Storage Requirements -- If the City is providing on -site storage, the City will provide a locked storage facility to adequately, as solely determined by the City, contain the Artwork and the materials and supplies reasonably required by Artist for the permanent installation of the Artwork. ARTICLE 7 FINAL APPROVAL OF ARTWORK Within ten (10) business days of the permanent installation of the Artwork, the City will inspect the Artwork to determine whether it conforms with all of the requirements of this Agreement. If the City desires any modifications to the Artwork or finds that any aspect of the Artwork is not in conformance with this Agreement, the City will notify Artist in writing within seven (7) business days of the inspection. Artist will have an opportunity to address and cure any defects, requests or concerns of the City within fifteen (15) days of the date of the City's notice provided pursuant to Article 7. ARTICLE 8 INTEGRITY OF THE WORK 8.1 Repairs and Maintenance - The City undertakes to exercise reasonable care to protect, repair, and maintain the work. Artist agrees to cooperate with and advise the City without charge in connection with any such non - routine maintenance, including, without limitation, damage by acts of God, vandalism, conservation and/or replacement of any portion of the Artwork to the extent that Artist is able to do so. During Artist's lifetime, the City will not undertake any non - routine maintenance on the Artwork without attempting to consult with the Artist or Artist's authorized representative unless an emergency requires the City to do so. 8.2 Relocation of the Work – To the extent that the Artwork is capable of being relocated, the City shall have the right to do so. If feasible, the City shall attempt to consult with the Artist concerning the relocation of the Artwork prior to any such relocation; however, the Artist's approval is not required for the relocation, if any. If the Artist is not pleased with such relocation, the Artist shall have the right to renounce credit for the Artwork. If Artist renounces credit for his Artwork, this would include, among other things, assignment to the City of the copyrights described herein. 8.3 Credit — The City agrees, at its own expense, to prepare and install at or near the Project a public notice, the form and exact location of which shall be solely determined by City, giving Artist credit for the creation of the Artwork. ARTICLE 9 INSURANCE COVERAGE Insurance The Artist, consistent with the Artist's status as an independent contractor, shall carry, and shall require any of its subcontractors to carry, at least the following insurance in such form, with such companies, and in such amounts (unless otherwise specified) as City may require: Worker's Compensation and Employer's Liability insurance, including All States Endorsement, to the extent required by federal law and complying with the laws of the State of Texas; ii. Commercial General Liability insurance, including Blanket Contractual Liability, Broad Form Property Damage, Personal Injury, Completed Operations /Products Liability, Premises Liability, Medical Payments, Interest of Employees as additional insured's, and Broad Form General Liability Endorsements, for at least One Million Dollars ($1,000,000) Combined Single Limit Bodily Injury and Property Damage on an occurrence basis; iii. Comprehensive Automobile Liability insurance covering all owned, non -owned or hired automobiles to be used by the Contractor, with coverage for at least One Million Dollars ($1,000,000) Combined Single Limit Bodily Injury and Property Damage. 1. Name the City, its officers, agents, representatives, and employees as additional insureds as to all applicable coverage with the exception of workers' compensation insurance. 2. Provide for at least thirty (30) days prior written notice to the City for cancellation, non - renewal, or material change of the insurance. 3. Provide for a waiver of subrogation against the City for injuries, including death, property damage, or any other loss to the extent the same is covered by the proceeds of insurance. Insurance company qualification All insurance companies providing the required insurance shall be authorized to transact business in Texas and rated at least "A" by AM Best or other equivalent rating service. Certificate of insurance A certificate of insurance evidencing the required insurance shall be submitted no later than the date of the execution of this Agreement. If this Agreement is renewed or extended by the City, a certificate of insurance shall also be provided to the City prior to the date the Agreement is renewed or extended. ARTICLE 10 AUDITS AND RECORDS /PROHIBITED INTEREST/VENDOR DISCLOSURE The Artist agrees that at any time during normal business hours and as often as City may deem necessary, Artist shall make available to representatives of the City for examination all of the Artist's records with respect to all matters covered by this Agreement, and will permit such representatives of the City to audit, examine, copy and make excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement, all for a period of four (4) years from the date of final settlement of this Agreement or for such other or longer period, if any, as may be required by applicable statute or other lawful requirement. The Artist agrees that the Artist is aware of the prohibited interest requirement of the City Charter, which is repeated on the Affidavit attached hereto as Exhibit "C" and incorporated herein by reference for all purposes, and will abide by the same. Further, a lawful representative of Artist shall execute the Affidavit attached hereto as Exhibit "C ". Artist understands and agrees that the existence of a prohibited interest during the term of this Agreement will render the Agreement voidable. The Artist agrees that the Artist is further aware of the vendor disclosure requirements set forth in Chapter 176, Local Government Code, as amended, and will abide by the same. In this connection, a lawful representative of the Artist shall execute the Conflict of Interest Questionnaire, Form CIQ, attached hereto as Exhibit "D" and incorporated herein for all purposes. ARTICLE 11 TERMINATION OF AGREEMENT /REMEDIES 11.1 Artist Default — Failure or refusal of the Artist to perform any act herein required, unless mutually agreed to in writing by the City and the Artist, shall constitute a default. In the event of a default, in addition to any other remedy available to the City, this Agreement may be terminated by the City upon ten (10) day written notice. Such notice does not waive any other legal remedies available to the City. 11.2 Conditions for Termination of Agreement Other than Artist's Default — If the Cite deems, in its sole discretion, the Project design is inappropriate or unworkable for the site, or if the deadlines specified herein are not met due, in whole or in part, to the Artist's actions and /or omissions, or if cost estimates indicate that the Project cannot be completed within the Project budget, the City retains the right to terminate this Agreement and is released from the obligation to enter into fabrication and installation of the Artist's design concept for the Project. In the event of any termination, Artist shall deliver to City all work, entirely or partially completed. The Artist shall receive as compensation, full payment for sere ices satisfactorily, as solely determined by the City, performed as outlined in Exhibit "B ", as applicable, to the date of the termination notice received. Tire City shall make this final payment within thirty (30) days of notifying the Artist. 11.3 Remedies Cumulative The rights and remedies provided by this Agreement are cumulative, and the use of any one right or remedy by either party shall not preclude or waive its rights to use any or all other remedies. These rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise. ARTICLE 12 DISPUTE RESOLUTION /MEDIATION In addition to all remedies at law, the parties may resolve /mediate any controversy, claim or dispute arising out of or relating to the interpretation or performance of this Agreement, or breach thereof, by voluntaiv mediation to be conducted by a mutually acceptable mediator. The costs of such mediation shall be divided equally betNween the Artist and the City. ARTICLE 13 INDEMNITY Indemnification Artist agrees to defend, indemnify and hold harmless the City, all of its officers, Council members, agents and employees from and against all claims, actions, suits, demands, proceedings, costs, damages and liabilities, including reasonable attorneys' fees, court costs and related expenses, arising out of, connected with, or resulting from any acts or omissions of Artist or any agent, employee, subcontractor, or supplier of Artist in the execution or performance of this contract without regard to whether such persons are under the direction of City agents or employees. The Artist agrees to protect and indemnify the City, all of its officers, Council members, agents and employees, from all claims, actions, suits, demands, proceedings, costs, damages and liabilities, including reasonable attorneys' fees, court costs and related expenses, arising out of any alleged infringement of patents or copyrights arising from the Artist's performance under the Artist's Bid or under this Agreement, including attomeys' fees and court costs. The provisions of this Article shall survive the termination or expiration of this Agreement. ARTICLE 14 NOTICES Artist agrees that all notices or communications to City permitted or required under this Agreement shall be delivered to City at the following addresses: Ken Keny McGeath Deputy Director of Community Sern-ices City of Southlake 1400 Main Street, Ste 440 Southlake, Texas 76092 City agrees that all notices or communication to Artist permitted or required under this Agreement shall be delivered to Artist at the following address: Archie St Clair 701 S. Main Street Grapevine, TX 76051 Any notice provided for under the terms of this Agreement by either party to the other shall be in writing and may be effected by registered or certified mail, return receipt requested. All notices or communication required to be given in writing by one party or the other shall be considered as having been given to the addressee on the date such notice or communication is postmarked by the sending party. Each party may change the address to which notice may be sent to that party by giving written notice of such change to the other party in accordance with the provisions of this Agreement. ARTICLE 15 MISCELLANEOUS 15.1 Complete Agreement - This Agreement, including the exhibits hereto labeled "A" through "D ", all of which are incorporated herein for all purposes, constitute the entire agreement by and between the parties regarding the subject matter hereof and supersedes all prior and /or contemporaneous written and /or oral understandings. This Agreement may not be amended, supplemented, and /or modified except by written agreement duly executed by both parties. To the extent that any provision of this Agreement should conflict with the provisions of an exhibit, the provisions of this Agreement shall prevail. 15.2 Assignment and Subletting - The Artist agrees that neither this Agreement nor the work to be performed hereunder will be assigned or sublet without the prior written consent of the City. The Artist further agrees that the assignment or subletting of any portion or feature of the work or materials required in the performance of this Agreement shall not relieve the Artist of its full obligations to the City as provided by this Agreement. All such approved work performed by assignment or subletting shall be billed through Artist, and there shall be no third party billing. 15.3 Successors and Assigns - City and Artist, and their partners, assigns, successors, subcontractors, executors, officers, agents, employees, representatives, and administrators are hereby bound to the terms and conditions of this Agreement. 15.4 Severabilitv - In the event a term, condition, or provision of this Agreement is determined to be invalid, illegal, void, unenforceable, or unlawful by a court of competent jurisdiction, then that term, condition, or provision, shall be deleted and the remainder of the Agreement shall remain in full force and effect as if such invalid, illegal, void, unenforceable or unlawful provision had never been contained herein. 15.5 Venue - This entire Agreement is performable in Tarrant and /or Denton County, Texas and the venue for any action related directly or indirectly, to this Agreement or in any manner connected therewith shall be Tarrant County, Texas, and this Agreement shall be construed under the laws of the State of Texas. 15.6 Execution /Consideration - This Agreement is executed by the parties hereto without coercion or duress for a substantial consideration, the receipt and sufficiency of which is forever confessed. 15.7 Authoritv - The individuals executing this Agreement on behalf of the respective parties below represent to each other that all appropriate and necessary action has been taken to authorize the individual who is executing this Agreement to do so for and on behalf of the party for which his or her signature appears, that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and binding agreement on the party for whom the individual is signing this Agreement and that each individual affixing his or her signature hereto is authorized to do so, and such authorization is valid and effective on the date thereof. 15.8 Waiver - Waiver by either party of any breach of this Agreement, or the failure of either party to enforce any of the provisions of this Agreement, at any time, shall not in any way affect, limit or waive such party's right thereafter to enforce and compel strict compliance. 15.9 Headings - The headings of the various sections of this Agreement are included solely for convenience of reference and are not to be full or accurate descriptions of the content thereof. 15.10 Multiple Counterparts - This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. A facsimile signature will also be deemed to constitute an original if properly executed. 15.11 Sovereign Immunitv — The parties agree that the City has not waived its sovereign immunity or any other defense by entering into and performing its obligations under this Agreement. 15.12 Representations — Each signatory represents that this Agreement has been read by the parry for which this Agreement is executed and that such parry has had the opportunity to confer with its counsel. 15.13 Miscellaneous Drafting Provisions — This Agreement shall be deemed drafted equally by all parties hereto. The language of all 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 parry shall not apply. 15.14 No Third Partv Beneficiaries — Nothing in this Agreement shall be construed to create any right in any third parry not a signatory to this Agreement, and the parties do not intend to create any third parry beneficiaries by entering into this Agreement 15.15. Relationship of Parties — No provision of this Agreement shall be construed to create a partnership or joint venture between the parties. Artist is performing Artist's services as an independent contractor and the doctrine of respondeat superior shall not apply between the City and Artist. N WITNESS WHEREOF, the parties have executed this Agreement and caused this Agreement to be effective on the Effective Date shown below. Effective Date: CITY ARTIST The City of Southlake, Texas Archie St. Clair By: By: Shana Yelverton Archie St. Clair Title: City Manager Title: 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 , NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS STATE OF COUNTY OF BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THIS STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED ARCHIE ST. CLAIR KNOWN TO ME TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO THE FOREGOING INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE EXECUTED THE SAME FOR THE PURPOSE AND CONSIDERATION EXPRESSED, AND IN THE CAPACITY THEREIN STATED. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS DAY OF , NOTARY PUBLIC IN AND FOR THE STATE OF EXHIBIT "A" SCOPE OF SERVICES AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND ARCHIE ST CLAIR (ARTIST) CREATION OF SCULPTURES FOR THE CITY OF SOUTHLAKE DEPARTMENT OF PUBLIC SAFETY HEADQUARTERS Project Description Creation of two sculptures (one representing a fireman and policeman, and one representing a police dog and fire dog with the respective helmet or hat next to each animal ) for the Department of Public Safety Headquarters The sculptures will be cast bronze, The sculpture at the main entrance will be set into a raised area and will require the sculpted figures to be 1 and 1 /2 times life size (fireman and policeman). The sculpture in the interior courtyard (police dog and fire dog) will be life size. To create and install the proposed project Archie St. Clair will perform the following tasks: A) Following a site visit, Artist shall submit final schematic drawings of the proposal (the "Design "), based upon proposal submitted to City staff and shall submit the schematic drawings to the requisite city boards (Southlake Arts Council Board and Crime Control and Prevention District Board) for review and approval within 60 days of the execution of this agreement. These drawings will include: • Detailed information of every physical feature of the construction of the Artwork and its integration with the site, with any proposed changes to the previously submitted proposal • A description of any issues involved in the construction, integration and maintenance of the Artwork, as well as any third party subcontractors needed to work on the project. ■ A final project budget breakdown not to exceed $280,000.00 ■ An installation timeline. B) Following formal approval of the schematic drawings by the Southlake Arts Council Board and Crime Control and Prevention District Board, the Artist shall submit drawings paid for by the Artist, with a certification that the Artwork, foundation for the Artwork and connection of the Artwork to the foundation will be structurally sound. C) The Artist shall create and install the Artwork in substantial conformity with the approved Design. Any significant changes in the concept, as defined in Section 5.2, must be approved by the City. It is the responsibility of the Artist to coordinate with the City and Contractor to ensure that the site is prepared to receive the Artwork. The City will be responsible for preparation of the site, including furnishing and preparing the foundation and lighting. D) Upon completion of the permanent installation and clean -up of the Project site by the Artist, the City project manager will inspect the work and give notice of acceptance, as provided in this Agreement. EXHIBIT `B" COMPLETION SCHEDULE/PROJECT BILLING/PROJECT BUDGET AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND ARCHIE ST. CLAIR (ARTIST) CREATION OF SCULPTURES FOR THE CITY OF SOUTHLAKE DEPARTMENT OF PUBLIC SAFETY HEADQUARTERS Completion Schedule and Project Billing Task Timeline COs Artist Foundry Conceptual Month 1 Contract - Provide drawings January signed Final conceptual 2009 drawings Begin work on Month 2 Check #1 Begins work on clay figures - $140,000 creating clay figures due (50 %) upon approval of drawings by Project Manager Month 3 Work continues on clay figures Month 4 On -site Work continues on clay visits figures Months Work continues on clay 5 & 6 figures Month 7 On -site Work continues on clay visits figures Clay Figures Month 8 -12 Approve Clay figures completed Approved figures are approved and clay and reviewed by COS processed as sent to foundn figures approval for Foundry necessary, cast in for casting and final work to begin bronze, flaws removed Approve Bronze Bronze on Supervise casting process in metal shop, patina on return from return at foundry. applied, (Process takes Foundry from Approve final bronze 3 -4 months) Foundry Check # 2 $84,000 paid upon approval of clay figures (30 %) Final acceptance Month 13 Approve Bronze figures delivered by project (January work. and installed in Southlake. manager, submit 2010) Check #3 Supervise Installation maintenance $56,000 worksheets, due upon dedication. installa - tion (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 Signature of Official/Title BEFORE ME, the undersigned authority, this day personally appeared 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 and on oath Notary Public in and for The State of My commission expires: EXHIBIT "D" INFORMA TION REG 4RIDING VENDOR CONFLICT OF INTEREST QUES'TfONNAIRE WHO: A person must file a conflict of interest questionnaire with the City if the person has a employment or business relationship with an officer of the City that results in taxable income exceeding $2,500 during the preceding twelve month period, or an officer or a member of the officer's family has accepted gifts with an aggregate value of more than $250 during the previous twelve month period and the person engages in any of the following actions: 1. contracts or seeks to contract for the sale or purchase of property, goods, or services with the City, including any of the following: a. written and implied contracts, utility purchases, purchase orders, credit card purchasscs and any purchase of goods and services by the City; b. contracts for the purchase or sale of real property, personal property including an auction of property; c. tax abatement and economic development agreements; 2. submits a bid to sell goods or services, or responds to a request for proposal for services; 3. enters into negotiations with the City for a contract; or 4. applies for a fax abatement and/or economic development incentive that will result in a contract with the City. THE FOLLOWING ARK CONSIDERED OFFICERS OF T" F CITY: 1 _ Mayor and City Council Members; 2. City Manager; 3. Roard and Commission members appointed by the Mayor or City Council members; 4. Directors of 4A and 413 development corporations; 5. the executive directors or managers of 4A and 413 development corporations; and G. Directors or the City of Southlake who have authority to sign contracts on behalf of the City. EXCLUSIONS: A questionnaire statement need not be filed if the money paid to a local government officer was a political contribution, a gift to a member of the officer's family from a family member; a contract or purchase of less than $2,500 or a transaction at a price and subject W: 15rautlYlakclh4isctllancnusl C'loap(er 176Attacdimmt CIQ.09260R.dn Page I of 3 to terms available to the public; a payment for food, lodging, transportation or entertainment; or a transaction subject to rate or fee regulation by a governmental entity or agency. WHAT: A person or business that contracts with the City or who seeks to contract with the City roust file a "conflict of interest questionnaire" (FORM CIQ) which is available online at www.ethics.state.tx.us and a copy of which is attached to this Guideline. The form contains mandatory disclosures regarding "employment or business relationships" with a municipal officer. Officials maybe asked to clarify or interpret various portions of the questionnaire. WHEN: The person or business must file: I. the questionnaire no later than seven days after the date the person or business begins contract discussions or negotiations with the municipality, or submits an application, responds to a request for proposals or bids, correspondence, or other writing related to a potential contract or agreement with the City; and 2. an updated questionnaire within seven days after the date of an event that would make a filed questionnaire incomplete or inaccurate. It does not matter if the submittal of a bid or proposal results in a contract. The statute requires a vendor to file a FORM CIQ at the time a proposal is submitted or negotiations commence. WHERE: The vendor or potential vendor must mail or deliver a completed questionnaire to the Finance Department. The Rmance Department is required by low to post the statements an the City's internet website. ENFORCEMENT: Failure to file a questionnaire is a class c misdemeanor punishable by a fine not to exceed $500. It is an exception to prosecution that the person files a FORM CIQ not later than seven business days after the person received notice of a violation. NOTE: The City does not have a duty to ensure that a person files a conflict of interest questionnaire. WASnuffiIak MisceIImwns\Ghapkx 176.Attwhmcnt CIQ-0926UKAa; Page 2 of 3 CONFLICT OF INTEREST QUESTIONNAIRE FORM ICIQ For vendor or other person doing business with local governmental entity Page 2 Name of local government officer with whom filer has affilitation or business relationship. (Complete this section only if the answer to A, B, or Cis YES.) This section, item 5 including subparts A, B, C & D, must be completed for each !officer with whom the tiler has affiliation or business relationship. Attach additional pages to this Form CIO as necessary. A. Is the local government officer named in this section receiving or iikeBy to receive taxable income from the filer of the :,.iestionnaire? Yes F-1 No B. Is the filer of the questionnaire receiving or likely to receive taxable income from or at the direction of the local government officer named in this section AND the taxable income is not from the local governmental entity? F7 Yes F7 No C. Is the filer of this questionnaire affiliated with a corporation or other business entity that the local government officer serves as an officer or director, or holds an ownership of 10 percent or mare? F7 Yes F7 No D. Describe each affiliation or business relationship. Describe any other affiliation or business relationship that might cause a conflict of interest. �i:jnatjre of person doing business with the governmental entity Date Amended 0 W N200® AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND LIZ BONHAM (ARTIST) FOR CREATION OF A PAINTING FOR THE CITY OF SOUTHLAKE DEPARTMENT OF PUBLIC SAFETY HEADDQUARTERS MAIN ENTRY LOBBY made as of the day of BETWEEN the City: and the Artist(s): in the Year 2009 The City of Southlake, Texas 1400 Main Street, Ste 440 Southlake, Texas 76092 Telephone 817 748 8384 Facsimile 817 748 8250 Liz Bonham 509 San Juan Southlake, Texas 76092 Telephone: (817) 223 -4057 for the following Project/ Creation of a painting for the City of Southlake Department of Artwork: Public Safety Headquarters main entry lobby The City and the Artist agree as set forth below. THIS AGREEMENT is made and entered by and between the City of Southlake, Texas, a Home -Rule Municipal Corporation located in Tarrant and Denton County Texas, hereinafter referred to as "City ", and Liz Bonham hereinafter referred to as "Artist", to be effective from and after the date as provided herein, hereinafter referred to as the "Agreement ". WHEREAS, the City desires to engage the services of the Artist to create a painting for the main lobby of the Department of Public Safety Headquarters. WHEREAS, the Artist desires to render such services for the City upon the terns and conditions provided herein. NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS: That for and in consideration of the covenants contained herein, and for the mutual benefits to be obtained hereby, the parties hereto agree as follows: ARTICLE 1 ARTIST'S SERVICES 1.1 Employment of the Artist - The City hereby agrees to retain the Artist to perform the services set forth herein in connection with the Project. Artist agrees to perform such services in accordance with the terns and conditions of this Agreement. 1.2 Scone of Services - The parties agree that Artist shall perform such services as are set forth and described in Exhibit "A ", which is attached hereto and incorporated herein by reference for all purposes. The parties understand and agree that deviations or modifications to the scope of services described in Exhibit "A ", in the form of written change orders, may be authorized from time to time by the City. 1.3 Schedule of Work - The Artist agrees to commence work immediately upon execution of this Agreement and receipt of first payment, and to proceed diligently with said work to completion as described in the Completion Schedule/Project Billing/Project Budget attached hereto as Exhibit `B" and incorporated herein by reference for all purposes. ARTICLE 2 THE CITY'S RESPONSIBILITIES 2.1 Proiect Data - The City shall furnish required information, that it currently has in its possession, as expeditiously as necessary for the orderly progress of the work, and the Artist shall be entitled to rely upon the accuracy and completeness thereof. 2.2 Citv Proiect Manager -The City shall designate, when necessary, a representative authorized to act on the City's behalf with respect to the Project (the "Project Manager"). The City or such authorized representative shall examine the documents submitted by the Artist and shall render any required decisions pertaining thereto as soon as practical so as to avoid unreasonable delay in the progress of the Artist's services ARTICLE 3 ARTIST'S COMPENSATION 3.1 Compensation for Artist's Services - As described in "Article 1, Artist's Services ", compensation for this Project shall be five thousand dollars and no cents ($5,000.00) ( "Artist's Fee ") and will cover all services to be rendered and materials to be provided in accordance with this Agreement. The Artist's Fee shall be paid in accordance with Article 3 and the Completion Schedule/Project Billing/Project Budget asset forth in Exhibit `B ", attached hereto. The final twenty percent (25 %) of the Artist's Fee, or twelve hundred and fifty dollars and no cents ($1250.00) shall not be paid until the Artist has completed, delivered and installed, where applicable, all of the Artwork services and tasks described in Exhibits "A" and "B ", attached hereto. The artist will also be required to fill out the proper paperwork to become an approved vendor for the City of Southlake before payments will commence. 3.2 Invoices — No payment to the Artist shall be made until Artist tenders an invoice to the City. Payments are payable to the Artist within thirty (30) days from the date of invoice as long as the invoice is mailed to City within three (3) days of the date of the invoice. Invoices are to be mailed to City immediately upon completion of each individual task listed in Exhibit "A ". If any invoice remains outstanding and unpaid for more than sixty (60) days from the date of invoice, and Artist has fully performed its obligations as set forth herein, the Artist has the option upon written notice to the City, to suspend all work specified under this Agreement until the account is brought current. Continued performance and/or completion of work by the Artist under this Agreement shall resume upon the payment of the earned fees by the City. 3.3 Failure to Pay - Failure of the City to pay an invoice, for a reason other than cause, to the Artist within sixty (60) days from the date of the invoice shall grant the Artist the right, in addition to any and all other rights provided, to, upon written notice to the City, refuse to render further services to the City and such act or acts shall not be deemed a breach of this Agreement. The City shall not be required to pay any invoice submitted by the Artist if the Artist breached any provision(s) herein. 3.4 Adiusted Compensation - If the Scope of the Project or if the Artist's services are materially changed, the amounts of the Artist's compensation shall be equitably adjusted as approved by City. Any additional amounts paid to the Artist as a result of any material change to the Scope of the Project shall be agreed upon in writing by both parties before the services are performed. 3.5 Proiect Suspension - If the Project is suspended or abandoned by the City in whole or in part for more than three (3) months, Artist shall be entitled to compensation for any and all work completed to the satisfaction of City in accordance with the provisions of this Agreement prior to suspension or abandonment. In the event of such suspension or abandonment by the City, Artist shall deliver to City all finished or unfinished documents, data, studies, surveys, drawings, maps, models, reports, photographs and/or any other items prepared by Artist in connection with this Agreement prior to Artist receiving final payment. If the Project is resumed after being suspended for more than three (3) months, the Artist's compensation shall be equitably adjusted as approved by the City. Any additional amounts paid to the Artist after the Project is resumed shall be agreed upon in writing by both parties before the services are performed. ARTICLE 4 OWNERSHIP AND COPYRIGHT 4.3 Ownership of Work - The Project is the property of the City, and the Artist shall not make any duplicate work of the same or substantially similar size, nor shall the Artist grant permission to others to do so except with the written permission of the City. The City shall be entitled to copies of the plans and the maquette, which are prepared by the Artist in connection with the development and fabrication of the Project under this Agreement. The ownership of the sculpture is transferred to the City upon full payment of Artwork described in Exhibits "A" and "B" attached hereto. 4.4 Ownership of Copyright - Artist shall retain the copyright to the Artwork. Artist shall take all steps, at his own expense, to protect the copyright of the Artwork. 4.5 License to City - The Artist irrevocably licenses the City, its employees, representatives, officers and agents, the right to make photographs, two dimensional reproductions, and adaptations of the work for educational, public relations, arts promotional and other non - commercial purposes. For the purposes of this Agreement, the following, among others, are deemed to be reproductions and /or adaptations for non - commercial purposes: reproduction in exhibition catalogues, websites, books, slides, photographs, postcards, posters, and calendars; in magazines, books, art and news sections of newspapers; in general books and magazines not primarily devoted to art but of an educational, historical or critical nature; slides, videos and film strips not intended for a mass audience, and television from stations operated for educational purposes or on programs for educational and news purposes from all stations. 4.6 Copyright Notice — The City undertakes to use its reasonable efforts to include in any reproductions which it makes of the Artwork a copyright notice in the following form: Copyright Liz Bonham or OO Liz Bonham 4.5 Representations and Warranties Regarding Copyright — The Artist represents and warrants that the Artwork is an original creation of Artist's and will not infringe the copyright, trademark, or other intangible rights of any third party. ARTICLE 5 CREATION OF THE ARTWORK 5.7 Specifications — Artist will create the Artwork. or cause it to be fabricated, in substantial conformity with the Design approved by City as set forth in Exhibit "A ". 5.8 Changes — Any significant changes to the Artwork by either Artist or as requested by City will be approved in writing by the other party. For purposes of this Agreement, a "significant change" will mean any change, including but not limited to, a change in the scope, design, color, size, or material of the Artwork, which affects cost, installation, site preparation, maintenance and concept as represented in the Design described in Exhibit "A ". If Artist wishes to make a significant change to the Artwork, he must request written approval of the change in writing at the address provided in Article 14. The Southlake Arts Council Board and the Crime Control and Prevention District Board will act on the request at the first available meeting, and the City will provide a written response within thirty (30) calendar days of receipt of the request. 5.9 Review of the Artwork — The City will be given access to the Artwork during reasonable business hours at Artist's or fabricator's studio in order to review the Artwork and Artist's or fabricator's progress with fabrication of the Artwork. Alternatively, the City requests and shall be given photographic documentation of Artist's progress to verify each stage that triggers payment pursuant to Section 3.1 above. 5.10 Notification of Fabrication Completion — Artist will notify the City in writing in the manner provided in Article 14 below when the Artwork is completed and ready for delivery. Designated representatives of the City will have the opportunity to inspect the Artwork for conformity with the design and structural requirements of this Agreement prior to delivery and to give written approval or disapproval of the Artwork within thirty (30) business days following notice from the Artist. As an alternative to the studio inspection, photographic documentation may be submitted to the City upon completion of the Artwork. 5.11 Preparation of Site — Regarding installation of the Artwork, cooperation from the City's designated staff and contractor is required. City will provide Artist with the specifications and drawings for the specific area at the site where the Artwork is to be installed. Artist is responsible for obtaining and forwarding to City design drawings and calculations for the installation of the Artwork. The drawings will illustrate the Artwork's support system, including without limitation, connection to the base. The designated city staff member will utilize these drawings and if, during installation, the Artwork is found to differ from the specifications noted in the drawings, it will be the Artist's responsibility to remedy the discrepancy and bring the Artwork into conformance with the drawings. 5.12 Warrantv of Craftsmanship –The Artist warrants that the Artwork will be free of defects in workmanship and materials. In the event that any defects become apparent in the workmanship or materials within five (5) years of the execution of this Agreement, Artist will remedy any defects at Artist's sole cost and expense. ARTICLE 6 STORAGE 6.1 Storage Costs -- Artist will make all efforts to coordinate installation such that the Artwork will not need to be stored prior to installation. If the Artwork is to be installed within fourteen (14) days of its delivery date to the designated site, and is to be stored temporarily at a location at the site, the Artist is responsible for ensuring the safety of the Artwork until the permanent installation is completed. The Artist will be responsible for any and all costs associated with storing the Artwork, including but not limited to, the cost of transporting the Artwork to and from the storage facility, from the date mutually agreed upon in writing by the Artist and City for delivery to the site until the Artwork is permanently installed. If, for reasons outside of the control of the Artist, the Artwork will not be able to be permanently installed within fourteen (14) days of its arrival date on site, as mutually agreed upon in writing by the Artist and City, and it is necessary to store the Artwork for more than fourteen (14) days prior to the permanent installation, the City must notify the Artist prior to delivery of the Artwork to the site. Storage of the Artwork will be at a location mutually agreed upon in writing by the Artist and City. Any and all costs associated with storing the Artwork, including but not limited to, the cost of transporting the Artwork from the storage facility, shall be apportioned between City and Artist as follows: • first day (as mutually agreed upon in writing by Artist and City for delivery to the site) of storage through day 14— Artist • day 15 until the date the Artwork is permanently installed- -City 6.2 Storage Requirements -- If the City is providing on -site storage, the City will provide a locked storage facility to adequately, as solely determined by the City, contain the Artwork and the materials and supplies reasonably required by Artist for the pennanent installation of the Artwork. ARTICLE 7 FINAL APPROVAL OF ARTWORK Within ten (10) business days of the permanent installation of the Artwork, the City will inspect the Artwork to determine whether it conforms with all of the requirements of this Agreement. If the City desires any modifications to the Artwork or finds that any aspect of the Artwork is not in conformance with this Agreement, the City will notify Artist in writing within seven (7) business days of the inspection. Artist will have an opportunity to address and cure any defects, requests or concerns of the City within fifteen (15) days of the date of the City's notice provided pursuant to Article 7. ARTICLE 8 INTEGRITY OF THE WORK 8.1 Repairs and Maintenance - The City undertakes to exercise reasonable care to protect, repair, and maintain the work. Artist agrees to cooperate with and advise the City without charge in connection with any such non - routine maintenance, including, without limitation, damage by acts of God, vandalism, conservation and/or replacement of any portion of the Artwork to the extent that the Artist is able to do so. During Artist's lifetime, the City will not undertake any non - routine maintenance on the Artwork without attempting to consult with the Artist or the Artist's authorized representative unless an emergency requires the City to do so. 8.2 Relocation of the Work – To the extent that the Artwork is capable of being relocated, the City- shall have the right to do so. If feasible, the City shall attempt to consult with the Artist concerning the relocation of the Artwork prior to any such relocation, however, the Artist's approval is not required for the relocation, if any. If the Artist is not pleased with such relocation, the Artist shall have the right to renounce credit for the Artwork. If Artist renounces credit for the Artwork, this would include, among other things, assignment to the City of the copyrights described herein. 8.3 Credit — The City agrees, at its own expense, to prepare and install at or near the Project a public notice, the form and exact location of which shall be solely determined by City, giving Artist credit for the creation of the Artwork. ARTICLE 9 INSURANCE COVERAGE Insurance The Artist, consistent with the Artist's status as an independent contractor, shall carry, and shall require any of its subcontractors to carry, at least the following insurance in such form, with such companies, and in such amounts (unless otherwise specified) as City may require: iv. Worker's Compensation and Employer's Liability insurance, including All States Endorsement, to the extent required by federal law and complying with the laws of the State of Texas; V. Commercial General Liability insurance, including Blanket Contractual Liability, Broad Form Property Damage, Personal Injury, Completed Operations /Products Liability, Premises Liability, Medical Payments, Interest of Employees as additional insured's, and Broad Form General Liability Endorsements, for at least One Million Dollars ($1,000,000) Combined Single Limit Bodily Injury and Property Damage on an occurrence basis; vi. Comprehensive Automobile Liability insurance covering all owned, non -owned or hired automobiles to be used by the Contractor, with coverage for at least One Million Dollars ($1,000,000) Combined Single Limit Bodily Injury and Property Damage. 4. Name the City, its officers, agents, representatives, and employees as additional uisureds as to all applicable coverage with the exception of workers' compensation insurance. 5. Provide for at least thirty (30) days prior written notice to the City for cancellation, non - renewal, or material change of the insurance. 6. Provide for a waiver of subrogation against the City for injuries, including death, property damage, or any other loss to the extent the same is covered by the proceeds of insurance. Insurance company qualification All insurance companies providing the required insurance shall be authorized to transact business in Texas and rated at least "A" by AM Best or other equivalent rating service. Certificate of insurance A certificate of insurance evidencing the required insurance shall be submitted no later than the date of the execution of this Agreement. If this Agreement is renewed or extended by the City, a certificate of insurance shall also be provided to the City prior to the date the Agreement is renewed or extended. ARTICLE 10 AUDITS AND RECORDS /PROHIBITED INTEREST/VENDOR DISCLOSURE The Artist agrees that at any time during normal business hours and as often as City may deem necessary, Artist shall make available to representatives of the City for examination all of the Artist's records with respect to all matters covered by this Agreement, and will permit such representatives of the City to audit, examine, copy and make excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement, all for a period of four (4) years from the date of final settlement of this Agreement or for such other or longer period, if any, as may be required by applicable statute or other lawful requirement. The Artist agrees that the Artist is aware of the prohibited interest requirement of the City Charter, which is repeated on the Affidavit attached hereto as Exhibit "C" and incorporated herein by reference for all purposes, and will abide by the same. Further, a lawful representative of Artist shall execute the Affidavit attached hereto as Exhibit "C ". Artist understands and agrees that the existence of a prohibited interest during the term of this Agreement will render the Agreement avoidable. The Artist agrees that the Artist is further aware of the vendor disclosure requirements set forth in Chapter 176, Local Government Code, as amended, and will abide by the same. In this connection, a lawful representative of the Artist shall execute the Conflict of Interest Questionnaire, Form CIQ, attached hereto as Exhibit "D" and incorporated herein for all purposes. ARTICLE 11 TERMINATION OF AGREEMENT /REMEDIES 11.1 Artist Default — Failure or refusal of the Artist to perform any act herein required, unless mutually agreed to in writing by the City and the Artist, shall constitute a default. In the event of a default, in addition to any other remedy available to the City, this Agreement may be terminated by the City upon ten (10) day written notice. Such notice does not waive any other legal remedies available to the City. 11.2 Conditions for Termination of Agreement Other than Artist's Default — If the City deems, in its sole discretion, the Project design is inappropriate or unworkable for the site, or if the deadlines specified herein are not met due, in whole or in part, to the Artist's actions and/or omissions, or if cost estimates indicate that the Project cannot be completed within the Project budget, the City retains the right to terminate this Agreement and is released from the obligation to enter into fabrication and installation of the Artist's design concept for the Project. In the event of any termination, Artist shall deliver to City all work, entirely or partially completed. The Artist shall receive as compensation, full payment for services satisfactorily, as solely determined by the City, performed as outlined in Exhibit `B ", as applicable, to the date of the termination notice received. The City shall make this final payment within thirty (30) days of notifying the Artist. 11.3 Remedies Cumulative The rights and remedies provided by this Agreement are cumulative, and the use of any one right or remedy by either party shall not preclude or waive its rights to use any or all other remedies. These rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise. ARTICLE 12 DISPUTE RESOLUTION /MEDIATION In addition to all remedies at law, the parties may resolve /mediate any controversy, claim or dispute arising out of or relating to the interpretation or performance of this Agreement, or breach thereof, by voluntary mediation to be conducted by a mutually acceptable mediator. The costs of such mediation shall be divided equally between the Artist and the City/ ARTICLE 13 INDEMNITY Indemnification Artist agrees to defend, indemnify and hold harmless the City, all of its officers, Council members, agents and employees from and against all claims, actions, suits, demands, proceedings, costs, damages and liabilities, including reasonable attorneys' fees, court costs and related expenses, arising out of, connected with, or resulting from any acts or omissions of Artist or any agent, employee, subcontractor, or supplier of Artist in the execution or performance of this contract without regard to whether such persons are under the direction of City agents or employees. The Artist agrees to protect and indemnify the City, all of its officers, Council members, agents and employees, from all claims, actions, suits, demands, proceedings, costs, damages and liabilities, including reasonable attorneys' fees, court costs and related expenses, arising out of any alleged infringement of patents or copyrights arising from the Artist's performance under the Artist's Bid or under this Agreement, including attorneys' fees and court costs. The provisions of this Article shall survive the termination or expiration of this Agreement. ARTICLE 14 NOTICES Artist agrees that all notices or communications to City permitted or required under this Agreement shall be delivered to City at the following addresses: Kerry McGeath Deputy Director of Community Services City of Southlake 1400 Main Street, Ste 440 Southlake, Texas 76092 City agrees that all notices or communication to Artist permitted or required under this Agreement shall be delivered to Artist at the following address: Liz Bonham 509 San Juan Southlake, Texas 76092 Telephone: (817) 223 -4057 Any notice provided for under the terms of this Agreement by either party to the other shall be in writing and may be effected by registered or certified mail, return receipt requested. All notices or communication required to be given in writing by one party or the other shall be considered as having been given to the addressee on the date such notice or communication is postmarked by the sending party. Each party may change the address to which notice may be sent to that party by giving written notice of such change to the other party in accordance with the provisions of this Agreement. ARTICLE 15 MISCELLANEOUS 15.1 Complete Agreement - This Agreement, including the exhibits hereto labeled "A" through "D ", all of which are incorporated herein for all purposes, constitute the entire agreement by and between the parties regarding the subject matter hereof and supersedes all prior and /or contemporaneous written and /or oral understandings. This Agreement may not be amended, supplemented, and /or modified except by written agreement duly executed by both parties. To the extent that any provision of this Agreement should conflict with the provisions of an exhibit, the provisions of this Agreement shall prevail. 15.2 Assignment and Subletting - The Artist agrees that neither this Agreement nor the work to be performed hereunder will be assigned or sublet without the prior written consent of the City. The Artist further agrees that the assignment or subletting of any portion or feature of the work or materials required in the performance of this Agreement shall not relieve the Artist of its full obligations to the City as provided by this Agreement. All such approved work performed by assignment or subletting shall be billed through Artist, and there shall be no third party billing. 15.3 Successors and Assigns - City and Artist, and their partners, assigns, successors, subcontractors, executors, officers, agents, employees, representatives, and administrators are hereby bound to the terms and conditions of this Agreement. 15.4 Severabilitv - In the event a term, condition, or provision of this Agreement is determined to be invalid, illegal, void, unenforceable, or unlawful by a court of competent jurisdiction, then that term, condition, or provision, shall be deleted and the remainder of the Agreement shall remain in full force and effect as if such invalid, illegal, void, unenforceable or unlawful provision had never been contained herein. 15.5 Venue - This entire Agreement is performable in Tarrant and /or Denton County, Texas and the venue for any action related directly or indirectly, to this Agreement or in any manner connected therewith shall be Tarrant County, Texas, and this Agreement shall be construed under the laws of the State of Texas. 15.6 Execution /Consideration - This Agreement is executed by the parties hereto without coercion or duress for a substantial consideration, the receipt and sufficiency of which is forever confessed. 15.7 Authoritv - The individuals executing this Agreement on behalf of the respective parties below represent to each other that all appropriate and necessary action has been taken to authorize the individual who is executing this Agreement to do so for and on behalf of the party for which his or her signature appears, that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and binding agreement on the party for whom the individual is signing this Agreement and that each individual affixing his or her signature hereto is authorized to do so, and such authorization is valid and effective on the date thereof. 15.8 Waiver - Waiver by either party of any breach of this Agreement, or the failure of either party to enforce any of the provisions of this Agreement, at any time, shall not in any way affect, limit or waive such party's right thereafter to enforce and compel strict compliance. 15.9 Headings - The headings of the various sections of this Agreement are included solely for convenience of reference and are not to be full or accurate descriptions of the content thereof. 15.10 Multiple Counterparts - This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. A facsimile signature will also be deemed to constitute an original if properly executed. 15.11 Sovereign Immunity — The parties agree that the City has not waived its sovereign immunity or any other defense by entering into and performing its obligations under this Agreement. 15.12 Representations — Each signatory represents that this Agreement has been read by the party for which this Agreement is executed and that such parry has had the opportunity to confer with its counsel. 15.13 Miscellaneous Drafting Provisions — This Agreement shall be deemed drafted equally by all parties hereto. The language of all 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. 15.14 No Third Partv 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. 15.15 Relationship of Parties — No provision f this Agreement shall be construed to create a partnership or joint venture between the parties. Artist is performing Artist's services as an independent contractor and the doctrine of respondeat superior shall not apply between the City and Artist. IN WITNESS WHEREOF, the parties have executed this Agreement and caused this Agreement to be effective on the Effective Date shown below. Effective Date: CITY ARTIST The City of Southlake, Texas Liz Bonham By: By: Shana Yelverton Liz Bonham Title: City Manager Title: 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 1 2009. NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS STATE OF COUNTY OF BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THIS STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED LIZ BONHAM 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 1 2009 NOTARY PUBLIC IN AND FOR THE STATE OF EXHIBIT "A" SCOPE OF SERVICES AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND LIZ BONHAM (ARTIST) CREATION OF A PAINTING FOR THE CITY OF SOUTHLAKE DEPARTMENT OF PUBLIC SAFETY HEADDQUARTERS MAIN ENTRY LOBBY Project Description Creation of a painting for the Department of Public Safety Headquarters presenting an action scene involving all aspects of the Department of Public Safety including Police, Fire and EMT with Southlake Town Hall in the background. The painting will be a framed 32x40 oil painting and a Gold or Silver Frame To create and install the proposed project Liz Bonham will perform the following tasks: A) Following a site visit, Artist shall submit final schematic drawings of the proposal (the "Design"), based upon proposal submitted to City staff and requisite city boards (the Southlake Arts Council Board and the Crime Control and Prevention District Board) for review and approval within 60 days of the execution of this agreement. These drawings will include: ■ Detailed drawing of the Artwork with any proposed changes to the previously submitted ■ A description of any issues involved in the painting or hanging of the Artwork, as well as any third part- subcontractors needed to work on the project. ■ A final project budget breakdown not to exceed $5,000 ■ An installation timeline. B) The Artist shall create and install the Artwork in substantial conformity with the approved Design. Any significant changes in the concept, as defined in Article 5.2, must be approved by the City. It is the responsibility of the Artist to coordinate with the City, and Contractor to ensure that the site is prepared to receive the Artwork. The City will be responsible for preparation of the site, including furnishing and installing the lighting. C) Upon completion of the permanent installation and clean-up of the Project site by the Artist, the City project manager will inspect the work and give notice of acceptance, as provided in this Agreement. EXHIBIT `B" COMPLETION SCHEDULE/PROJECT BILLING/PROJECT BUDGET AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND LIZ BONHAM (ARTIST) CREATION OF A PAINTING FOR THE CITY OF SOUTHLAKE DEPARTMENT OF PUBLIC SAFETY HEADDQUARTERS MAIN ENTRY LOBBY Completion Schedule and Project Billing Task Timeline COs Artist Conceptual Month 1 -2 Contract Provide drawings January signed Final more detailed 2009 drawings Month 2 Check #1 $3750 due (75 %) Work on Month 3 Work commences on painting painting commences Month 4 On -site visits Work continues on p aintin g Months Work continues on 5 & 6 painting Month 7 On -site visits Work continues on painting Final Month 8 -12 Approve Have the painting acceptance by paintings and available for review project manager frame Dedication and Month 13 Check # 3 Work is hung in the final payment (Januaiy $1250 paid location 2010) upon installation (25 %) 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 , 2009. Signature /Title BEFORE ME, the undersigned authority, this day personally appeared 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 1 2009. and on oath Notary Public in and for The State of My commission expires: EXHIBIT "D" INFORMA TION REG 4RIDING VENDOR CONFLICT OF INTEREST QUES'TfONNAIRE WHO: A person must file a conflict of interest questionnaire with the City if the person has a employment or business relationship with an officer of the City that results in taxable income exceeding $2,500 during the preceding twelve month period, or an officer or a member of the officer's family has accepted gifts with an aggregate value of more than $250 during the previous twelve month period and the person engages in any of the following actions: 1. contracts or seeks to contract for the sale or purchase of property, goods, or services with the City, including any of the following: a. written and implied contracts, utility purchases, purchase orders, credit card purchasscs and any purchase of goods and services by the City; b. contracts for the purchase or sale of real property, personal property including an auction of property; c. tax abatement and economic development agreements; 2. submits a bid to sell goods or services, or responds to a request for proposal for services; 3. enters into negotiations with the City for a contract; or 4. applies for a fax abatement and/or economic development incentive that will result in a contract with the City. THE FOLLOWING ARK CONSIDERED OFFICERS OF T" F CITY: 1 _ Mayor and City Council Members; 2. City Manager; 3. Roard and Commission members appointed by the Mayor or City Council members; 4. Directors of 4A and 413 development corporations; 5. the executive directors or managers of 4A and 413 development corporations; and G. Directors or the City of Southlake who have authority to sign contracts on behalf of the City. EXCLUSIONS: A questionnaire statement need not be filed if the money paid to a local government officer was a political contribution, a gift to a member of the officer's family from a family member; a contract or purchase of less than $2,500 or a transaction at a price and subject W: 15rautlYlakclh4isctllancnusl C'loap(er 176Attacdimmt CIQ.09260R.dn Page I of 3 to ter available to the public; a payment for food, lodging, transportation or entertainment; or a transaction subject to rate or fee regulati on by a governmental entity or agency. WHAT: A person or business that contracts with the City or who seeks to Contract with the City must file a "conflict of interest questionnaire" (FORM CIQ) which is available online at www.ethics.state.tx.us and a copy of which is attached to this Guideline. The farm contains mandatory disclosures regarding "employment or business relationships" with a municipal officer. Officials maybe asked to clarify or interpret various portions of the questionnaire. MWEN: The person or business must file: I. the questionnaire no later than seven days after the date the person or business begins contract discussions or negotiations with the municipality, or submits an application, responds to a request for proposals or bids, correspondence, or other writing related to a potential contract or agreement with the City; and 2. an updated questionnaire within seven days after the date of an event that would Snake a filed questionnaire incomplete or inaccurate. It does not matter if the submittal of a bid or proposal results in a contract. The statute requires a vendor to file a FORM CIQ at the time a proposal is submitted or negotiations commence. WHERE: The vendor or potential vendor must mail or deliver a completed questionnaire to the Finance Department. The Finance Department is required by law to past the statements nn the City's internet website. ENFORCEMENT: Failure to file a questionnaire is a class c misdemeanor punishable by a line not to exceed $500. it is an exception to prosecution that the person files a FORM CIQ not later than seven business days after the person received notice of a violation. NOTE: The City does not have a duty to ensure that a person files a conflict of interest questionnaire. W :%Scuth1ak6Mi5m11 w11S\C:hup1u 176.Attwhment C1Q- 0926[7RA ;. Pago 2 of 3 CONFLICT OF INTEREST QUESTIONNAIRE FORM ICIQ For vendor or other person doing business with local governmental entity Page 2 Name of local government officer with whom filer has affilitation or business relationship. (Complete this section only if the answer to A, B, or Cis YES.) This section, item 5 including subparts A, B, C & D, must be completed for each !officer with whom the tiler has affiliation or business relationship. Attach additional pages to this Form CIO as necessary. A. Is the local government officer named in this section receiving or iikeBy to receive taxable income from the filer of the :,.iestionnaire? Yes F-1 No B. Is the filer of the questionnaire receiving or likely to receive taxable income from or at the direction of the local government officer named in this section AND the taxable income is not from the local governmental entity? F7 Yes F7 No C. Is the filer of this questionnaire affiliated with a corporation or other business entity that the local government officer serves as an officer or director, or holds an ownership of 10 percent or mare? F7 Yes F7 No D. Describe each affiliation or business relationship. Describe any other affiliation or business relationship that might cause a conflict of interest. �i:jnatjre of person doing business with the governmental entity Date Amended 0 W N200®