Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Item 9B
CITY OF SOUTH LAKE MEMORANDUM 18 January 2011 To: Shana Yelverton, City Manager From: Jim C. Blagg, Assistant City Manager/Director of Public Safety Subject: Approve Artists, Concepts and Contracts for Art in Roundabouts Action Requested: Approve Artists, Concepts and Contracts for Art in Roundabouts Background The City of Southlake's CIP has funded the construction of four roundabouts throughout the City. Currently there are roundabouts at the intersections of Continental and Carroll (Brumlow), Continental and White Chapel, White Chapel and Dove and Dove and North Carroll. Within the CIP the Council approved funds to place public art within each of these roundabouts. The City of Southlake released a national call to artists in April of 2010 for art to be placed in four roundabouts. Thirty five artists responded, and at the May Arts Council meeting the artists were narrowed to seven. The seven remaining artists were asked to provide specific concepts for the roundabouts. The Arts Council Artists selection subcommittee including Council members Zito and Morris reviewed the artist's concepts and then made recommendation to the full Arts Council of four artists. The Arts Council recommended the four artists to the City Council; however, the City Council opted to take a closer review of the art concepts and the artists. Subsequently, a meeting was held with the Artists, City Council Members Zito, Morris and Muller and the Arts Council Members. The result of this meeting was a selection of three artists to be recommended to the Arts Council. The Arts Council recommended the three artists, their concepts and contracts to City Council at their December 14, 2010 meeting on a vote of 6-0. The artists are Jane DeDecker, Darrell Davis, and Seth Vandable. Jane DeDecker will provide art for two roundabouts, one at Continental and White Chapel and one at White Chapel and Dove; Darrell Davis will provide an art work at Dove and North Carroll; and, Seth Vandable will provide an art work at Continental and Carroll (Brumlow). Upon City Council approval the artists' contracts will be signed and work will begin. Completion of the art work and installation will take approximately 10 months. Financial Considerations: $440,000 is allocated in CIP for art associated with the construction of the four roundabouts • These three contracts have a not to exceed price of $350,000 • City will also pay for installation with the remaining funds Strategic Link: This item meets the Council's Strategic Focus Areas of Quality Development and Partnerships and Volunteerism by addressing the corporate objectives of providing attractive and unique spaces for enjoyment of personal interests and promoting opportunities for partnerships and volunteer involvement Citizen Input/ Board Review: Arts Council recommended approval of this item at its December 14, 2010 meeting by a vote of 6-0 Legal Review: The contracts have been reviewed by the City Attorney Alternatives: Reject recommendation and direct staff to do another call for artists Approve artists but direct that new concepts be developed Determine that no art will be placed in roundabouts Supporting Documents: Contracts for all three artists Staff Recommendation: Approve Artists, Concepts and Contracts for Art in Roundabouts AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND JANE DEDECKER AND THE NATIONAL SCULPTORS GUILD (ARTIST) CREATION OF SCULPTURES FOR THE CITY OF SOUTHLAKE made as of the day of January in the Year 2011 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: Jane Dedecker c/o National Sculptor's Guild 2683 North Taft Avenue Loveland CO 80538 for the following Artwork: Creation of a sculpture for the City of Southlake to be located in the roundabout at Dove Road and N. White Chapel, and a second sculpture to be located at Continental Blvd and S. White Chapel. 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 Jane Dedecker and the National Sculptor's Guild hereinafter collectively referred to as "Artist", to be effective from and after the date as provided herein, hereinafter referred to as the "Agreement"; WHEREAS, the City desires to engage the services of the Artist to create sculptures to be located in the roundabout at Dove Road and N. White Chapel, and a second to be located at Continental Blvd and S. White Chapel . 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, the parties agree as follows: ARTICLE 1 ARTIST'S SERVICES 1.1 Employment of the Artist - The City hereby agrees to retain the Artist to perform the services set forth herein in connection with the Art. Artist agrees to perform such services in accordance with the terms and conditions of this Agreement. 1.2 Design and Installation - The parties agree that Artist shall perform the services set forth and described in Exhibit "A", which is attached and incorporated herein by reference. The Artist shall furnish all materials, labor, tools, equipment, apparatus, facilities and anything else necessary to complete the Artwork in a workmanlike manner. The parties understand and agree that deviations or modifications to the scope of services described in Exhibit "A", in the form of written change orders, may be authorized from time to time by the City. The Artwork shall be delivered and installed by the Artist at its sole cost and expense. Design and installation of the Artwork shall comply with applicable building codes and seismic safety regulations. 1.3 Size of Artwork - The completed Artwork shall be true to the estimated measurements and constructed out of the materials described in Exhibit "A". 1.4 Permits, Licenses, and Taxes - The Contractor for the project shall obtain and maintain during the term of this Agreement, all permits (including a City building permit), licenses, and certificates and pay all taxes that may be required in connection with the performance of services under this Agreement. Notwithstanding any other provision of this Agreement, neither Artist nor Guild shall be charged a fee for issuance of a City building permit or any City license. 1.5 Schedule of Work - The Artist agrees to commence work immediately upon execution of this Agreement and receipt of first payment, and to proceed diligently with said work to completion as described in the Completion Schedule/Artwork Billing and Budget attached as Exhibit `B" and incorporated herein by reference. If the Agreement 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 this Agreement. 1.6 Artwork Installation Site — The Artwork shall be permanently affixed to the installation site, be located in the roundabout at Dove Road and N. White Chapel, and a second to be located at Continental Blvd and S. White Chapel unless the City exercises its option to relocate as set forth in Section 8.2. The Artist shall design and construct the sculpture and its base so that the art installation will be structurally safe and sound and comply with current municipal building codes and seismic standards in accordance with the Uniform Building Code. ARTICLE 2 THE CITY'S RESPONSIBILITIES 2.1 Artwork Data - The City shall furnish required information that it currently has in its possession, as expeditiously as necessary for the orderly progress of the work, and the Artist shall be entitled to rely upon the accuracy and completeness of such information. 2.2 City Proiect Manager - The City shall designate, when necessary, a representative authorized to act on the City's behalf with respect to the Artwork (the "Project Manager"). The City, by and through this authorized representative, shall examine the documents submitted by the Artist and render any required decisions pertaining thereto as soon as practical so as to avoid unreasonable delay in the progress of the Artist's services. 2.3 Reimbursement for Travel - With prior written City approval, the City shall pay for actual reasonable and necessary costs for transportation, meals and lodging for the Artist while traveling to, from and while residing in North Texas, as well as any and all other necessary costs associated with the Artist's stay in North Texas to commence and complete the Artwork. ARTICLE 3 ARTIST'S COMPENSATION 3.1 Compensation for Artist's Services - As described in "Article 1, Artist's Services", compensation for this Artwork shall be one hundred and eighty thousand dollars and no cents ($180,000) ("Artist's Fee") and will cover all services to be rendered and materials to be provided in accordance with this Agreement ($90,000 each for two roundabouts). The Artist's Fee shall be paid in accordance with Article 3 and the Completion Schedule/Artwork Billing and Budget as set forth in Exhibit `B". The final thirty three percent (33%) of the Artist's Fee, or Twenty eight thousand and nine hundred dollars and no cents ($60,000) shall not be paid until the Artist has completed all of the Artwork services and tasks described in Exhibits "A" and `B". The Artist will also be required to fill out the proper paperwork to become an approved vendor of the City before payments commence. 3.2 Artwork Suspension - If the Artwork is suspended or abandoned by the City in whole or in part for more than three (3) months, Artist shall be entitled to compensation for any and all work completed to the satisfaction of City in accordance with the provisions of this Agreement prior to suspension or abandonment. In the event of such suspension or abandonment by the City, Artist shall deliver to City all finished or unfinished documents, data, studies, surveys, drawings, maps, models, reports, photographs and/or any other items prepared by Artist in connection with this Agreement prior to Artist receiving final payment. If the Artwork is resumed after being suspended for more than three (3) months, the Artist's compensation shall be equitably adjusted as approved by the City. Any additional amounts paid to the Artist after the Artwork is resumed shall be agreed upon in writing by both parties before the services are performed. ARTICLE 4 OWNERSHIP AND COPYRIGHT 4.1 Ownership of Work - The Artwork is the property of the City; The Artist retains Copyright in and to the Artwork under the Copyright Act of 1976, 17 U.S.C., Section 101, et seq. The Artist reserves the right to produce the Artwork at any size. Each edition will be clearly marked as a limited edition. If the City should desire to place the Artwork in a location that is not shown on Exhibit B, the City shall first notify the Artist consistent with Section D herein as to the new location. The City shall be entitled to copies of the plans that are prepared by the Artist in connection with the development and fabrication of the Artwork under this Agreement. The ownership of the sculpture is transferred to the City upon full payment of Artwork described in Exhibits "A" and "B". 4.2 Ownership of Copyright - Artist shall retain the copyright to the Artwork. Artist shall take all steps, at his own expense, to protect the copyright of the Artwork. 4.3 License to City - The Artist irrevocably licenses the City, its employees, representatives, officers and agents, the right to make photographs, two dimensional reproductions, and adaptations of the work for educational, public relations, arts promotional and other non-commercial purposes. For the purposes of this Agreement, the following, among others, are deemed to be reproductions and/or adaptations for non-commercial purposes: reproduction in exhibition catalogues, websites, books, slides, photographs, postcards, posters, and calendars; in magazines, books, art and news sections of newspapers; in general books and magazines not primarily devoted to art but of an educational, historical or critical nature; slides, videos and film strips not intended for a mass audience, and television from stations operated for educational purposes or on programs for educational and news purposes from all stations. All aforementioned work product created by Jane Dedecker will include the words: SCULPTURED BY JANE DEDECKER, NATIONAL SCULPTORS GUILD. 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 Jane Dedecker or © Jane Dedecker 4.5 Representations and Warranties Regarding Copyright — The Artist represents and warrants that the Artwork is an original creation of Artist's and will not infringe the copyright, trademark, or other intangible rights of any third party. 4.6 Warranty of Title — The Artist represents and warrants that the Artwork is free and clear of all liens from any source whatsoever. ARTICLE 5 FABRICATION 5.1 Specifications — Artist will create the Artwork, or cause it to be fabricated, in substantial conformity with the specifications set forth in Exhibit "A". 5.2 Changes — Any significant changes to the Artwork by either Artist or as requested by City will be approved in writing by the other party. For purposes of this Agreement, a "significant change" will mean any change, including but not limited to, a change in the scope, design, color, size, or material of the Artwork, which affects cost, installation, site preparation, maintenance and concept as described in Exhibit "A". If Artist wishes to make a significant change to the Artwork, he must request written approval of the change in writing at the address provided in Article 14. The City will provide a written response within thirty (30) calendar days of receipt of the request. 5.3 Review of the Artwork — The City will be given access to the Artwork during reasonable business hours at Artist's or fabricator's studio in order to review the Artwork and Artist's or fabricator's progress with fabrication of the Artwork. Alternatively, the City requests and shall be given photographic documentation of Artist's progress to verify each stage that triggers payment pursuant to Section 3.1 above. 5.4 Notification of Fabrication Completion — Artist will notify the City in writing in the manner provided in Article 14 below when the Artwork is completed and ready for delivery. Designated representatives of the City will have the opportunity to inspect the Artwork for conformity with the design and structural requirements of this Agreement prior to delivery and to give written approval or disapproval of the Artwork within thirty (30) business days following notice from the Artist. As an alternative to the studio inspection, photographic documentation may be submitted to the City upon completion of the Artwork. 5.5 Preparation of Site — Regarding installation of the Artwork, cooperation from the City's designated staff and contractor is required. City will provide Artist with the specifications and drawings for the specific area at the site where the Artwork is to be 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. The City will be responsible for the installation at its location, including the crane and related equipment; labor, barricades and traffic control and costs of travel as described in Section 2.3. Jane Dedecker and the National Sculptors Guild will act as a consultant for said installation but shall not receive an additional fee for Artist's time and weather. 5.6 Warranty of Craftsmanship — The Artist warrants that the Artwork will be free of defects in workmanship and materials. In the event that any defects become apparent in the workmanship or materials within two (2) years of the completion of the Artwork by the Artist and acceptance of the Artwork by the City, Artist will remedy any defects at Artist's sole cost and expense during this period. ARTICLE 6 STORAGE 6.1 Storage - Storage of the Artwork, not to exceed fifteen (15) days, after the acceptance by City, will be at Jane DeDecker's studio. ARTICLE 7 FINAL APPROVAL OF ARTWORK 7.1 Final Acceptance - City will inspect the Artwork prior to taking delivery to determine whether it conforms with all of the requirements of this Agreement. The Artist shall furnish City with a full written narrative description of the Artwork. If the City finds that any aspect of the Artwork is not in conformance with this Agreement, the City will notify Artist in writing and Artist will have a reasonable time and opportunity to address and cure any defects, requests or concerns of the City. Final acceptance shall be determined by the City in its sole and absolute discretion. The City shall notify the Artist in writing of its final acceptance of the Artwork. In no event shall the final acceptance occur more than thirty (30) days from the date of installation. 7.2 Title and Final Acceptance - Title of ownership of the Artwork shall pass to the City upon final acceptance. ARTICLE 8 INTEGRITY OF THE WORK 8.1 Routine Maintenance — The Artist shall provide to City written instructions for appropriate routine maintenance and preservation of the Artwork, including moving and installation of the Artwork. 8.2 Repairs - The City undertakes to exercise reasonable care to protect, repair, and maintain the work. Artist agrees to cooperate with and advise the City without charging the City in connection with any such non -routine maintenance, including, without limitation, damage by acts of God, vandalism, conservation and/or replacement of any portion of the Artwork to the extent that the Artist is able to do so. During Artist's lifetime, the City will not undertake any non -routine maintenance on the Artwork without attempting to consult with the Artist or the Artist's authorized representative unless required by an emergency. 8.3 Relocation of the Work — To the extent that the Artwork is capable of being relocated, the City shall have the right to do so. If feasible, the City shall attempt to consult with the Artist concerning the relocation of the Artwork prior to any such relocation; however, the Artist's approval is not required for the relocation, if any. If the Artist is not pleased with such relocation, he or she shall have the right to renounce credit for the Artwork. If Artist renounces credit for his Artwork, this would include, among other things, assignment to the City of the copyrights described herein. 8.4 Credit — The City agrees, at its own expense, to prepare and install at or near the Artwork a public notice, the form and exact location of which shall be solely determined by City, giving Artist credit for the creation of the Artwork. ARTICLE 9 RISK OF LOSS/INSURANCE COVERAGE 9.1 Risk of Loss — The risk of loss or damage to the Artwork shall be borne by the Artist until final acceptance, and the Artist shall take such measures as are reasonable to protect the Artwork and the materials relating hereto from loss or damage until final acceptance. 9.2 Insurance — The Artist, consistent with the Artist's status as an independent contractor, shall carry, and shall require any of its subcontractors to carry, at least the following insurance in such form, with such companies, and in such amounts (unless otherwise specified) as City may require: 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; 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. 9.3 Insurance Requirements - The Artist shall: i. Name the City, its officers, agents, representatives, and employees as additional insured's as to all applicable coverage with the exception of workers' compensation insurance; ii. Provide for at least thirty (30) days prior written notice to the City for cancellation, non -renewal, or material change of the insurance; and iii. Provide for a waiver of subrogation against the City for injuries, including death, property damage, or any other loss to the extent the same is covered by the proceeds of insurance. 9.4 Insurance Company Qualification — All insurance companies providing the required insurance shall be authorized to transact business in Texas and rated at least "A" by AM Best or other equivalent rating service. 9.5 Certificate of Insurance — A certificate of insurance evidencing the required insurance shall be submitted no later than the date of the execution of this Agreement. If this Agreement is renewed or extended by the City, a certificate of insurance shall also be provided to the City prior to the date the Agreement is renewed or extended. ARTICLE 10 AUDITS AND RECORDS/PROHIBITED INTERESTNENDOR DISCLOSURE The Artist agrees that at any time during normal business hours and as often as City may deem necessary, Artist shall make available to representatives of the City for examination all of the Artist's records with respect to all matters covered by this Agreement, and will permit such representatives of the City to audit, examine, copy and make excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement, all for a period of four (4) years from the date of final settlement of this Agreement or for such other or longer period, if any, as may be required by applicable statute or other lawful requirement. The Artist agrees that the Artist is aware of the prohibited interest requirement of the City Charter, which is repeated on the Affidavit attached hereto as Exhibit "D" and incorporated herein by reference for all purposes, and will abide by the same. Further, a lawful representative of Artist shall execute the Affidavit. Artist understands and agrees that the existence of a prohibited interest during the term of this Agreement will render the Agreement voidable. The Artist agrees that the Artist is further aware of the vendor disclosure requirements set forth in Chapter 176, Local Government Code, as amended, and will abide by the same. In this connection, a lawful representative of the Artist shall execute the Conflict of Interest Questionnaire, Form CIQ, attached hereto as Exhibit "E" and incorporated herein for all purposes. ARTICLE 11 TERMINATION OF AGREEMENT/REMEDIES 11.1 Artist Default — Failure or refusal of the Artist to perform any act herein required, unless mutually agreed to in writing by the City and the Artist, shall constitute a default. Artist shall be given a reasonable time within which to cure said default after receiving said notice in writing. In the event of a default, in addition to any other remedy available to the City, this Agreement may be terminated by the City upon ten (10) days written notice. Such notice does not waive any other legal remedies available to the City. 11.2 Conditions for Termination of Agreement Other than Artist's Default — If the City deems, in its sole discretion, the Artwork design is inappropriate or unworkable for the site, or if the deadlines 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 Artwork cannot be completed within the budget, the City retains the right to terminate this Agreement and is released from the obligation to enter into fabrication and installation of the Artist's design concept for the Artwork. In the event of any termination, Artist shall deliver to City all work, entirely or partially completed that Artist has been compensated for. The Artist shall receive full payment for services satisfactorily performed (as outlined in Exhibit "B"), and as solely determined by the City. The City shall make this final payment within thirty (30) days of notifying the Artist. 11.3 Remedies Cumulative - The rights and remedies provided by this Agreement are cumulative, and the use of any one right or remedy by either party shall not preclude or waive its rights to use any or all other remedies. These rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise. ARTICLE 12 DISPUTE RESOLUTION/MEDIATION In addition to all remedies at law, the parties may resolve/mediate any controversy, claim or dispute arising out of or relating to the interpretation or performance of this Agreement, or breach thereof, by voluntary mediation to be conducted by a mutually acceptable mediator. The cost of the mediation shall be divided equally between the Artist and the City. ARTICLE 13 INDEMNITY Indemnification - Artist agrees to defend, indemnify and hold harmless the City, all of its officers, Council members, agents and employees from and against all claims, actions, suits, demands, proceedings, costs, damages and liabilities, including reasonable attorneys' fees, court costs and related expenses, arising out of, connected with, or resulting from any acts or omissions of Artist or any agent, employee, subcontractor, or supplier of Artist in the execution or performance of this contract without regard to whether such persons are under the direction of City agents or employees. The Artist agrees to protect and indemnify the City, all of its officers, Council members, agents and employees, from all claims, actions, suits, demands, proceedings, costs, damages and liabilities, including reasonable attorneys' fees, court costs and related expenses, arising out of any alleged infringement of patents or copyrights arising from the Artist's performance under the Artist's Bid or this Agreement, including attorneys' fees and court costs. The provisions of this Article shall survive the termination or expiration of this Agreement. ARTICLE 14 NOTICES Artist agrees that all notices or communications to City permitted or required under this Agreement shall be delivered to City at the following addresses: Assistant City Manager: Jim Blagg Project Manager: Kerry McGeath City of Southlake 1400 Main Street, Ste 440 Southlalce, 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: Jane DeDecker c/o National Sculptors Guild 2683 North Taft Avenue Loveland CO 80538 Any notice provided for under the terms of this Agreement by either party to the other shall be in writing and may be effected by registered or certified mail, return receipt requested. All notices or communication required to be given in writing by one party or the other shall be considered as having been given to the addressee on the date such notice or communication is postmarked by the sending party. Each party may change the address to which notice may be sent to that party by giving written notice of such change to the other party in accordance with the provisions of this Agreement. ARTICLE 15 MISCELLANEOUS 15.1 Complete Agreement - This Agreement, including the exhibits hereto labeled "A" through "E", all of which are incorporated herein for all purposes, constitute the entire agreement by and between the parties regarding the subject matter hereof and supersedes all prior and/or contemporaneous written and/or oral understandings. This Agreement may not be amended, supplemented, and/or modified except by written agreement duly executed by both parties. To the extent that any provision of this Agreement should conflict with the provisions of an exhibit, the provisions of this Agreement shall prevail. 15.2 Assignment and Subletting - The Artist agrees that neither this Agreement nor the work to be performed hereunder will be assigned or sublet without the prior written consent of the City. The Artist further agrees that the assignment or subletting of any portion or feature of the work or materials required in the performance of this Agreement shall not relieve the Artist of its full obligations to the City as provided by this Agreement. All such approved work performed by assignment or subletting shall be billed through Artist, and there shall be no third party billing. 15.3 Successors and Assigns - City and Artist, and their partners, assigns, successors, subcontractors, executors, officers, agents, employees, representatives, and administrators are hereby bound to the terms and conditions of this Agreement. 15.4 Severability - In the event a term, condition, or provision of this Agreement is determined to be invalid, illegal, void, unenforceable, or unlawful by a court of competent jurisdiction, then that term, condition, or provision, shall be deleted and the remainder of the Agreement shall remain in full force and effect as if such invalid, illegal, void, unenforceable or unlawful provision had never been contained herein. 15.5 Venue - This entire Agreement is performable in Tarrant County, Texas and the venue for any action related directly or indirectly, to this Agreement or in any manner connected therewith shall be Tarrant County, Texas, and this Agreement shall be construed under the laws of the State of Texas. 15.6 Execution/Consideration - This Agreement is executed by the parties hereto without coercion or duress for a substantial consideration, the receipt and sufficiency of which is forever confessed. 15.7 Authority - The individuals executing this Agreement on behalf of the respective parties below represent to each other that all appropriate and necessary action has been taken to authorize the individual who is executing this Agreement to do so for and on behalf of the party for which his or her signature appears, that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and binding agreement on the party for whom the individual is signing this Agreement and that each individual affixing his or her signature hereto is authorized to do so, and such authorization is valid and effective on the date thereof. 15.8 Waiver - Waiver by either party of any breach of this Agreement, or the failure of either party to enforce any of the provisions of this Agreement, at any time, shall not in any way affect, limit or waive such party's right thereafter to enforce and compel strict compliance. 15.9 Headings - The headings of the various sections of this Agreement are included solely for convenience of reference and are not to be full or accurate descriptions of the content thereof. 15.10 Multiple Counterparts -This Agreement maybe executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. A facsimile signature will also be deemed to constitute an original if properly executed. 15.11 Sovereign Immunity —The parties agree that the City has not waived its sovereign immunity or any other legal defense by entering into and performing its obligations under this Agreement. 15.12 Representations — Each signatory represents that this Agreement has been read by the party for which this Agreement is executed and that such party has had the opportunity to confer with its counsel. 15.13 Miscellaneous Drafting Provisions — This Agreement shall be deemed drafted equally by all parties hereto. The language of all 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 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 15.15 Relationship of Parties — The provisions of this Agreement shall not be construed to create a partnership or joint venture between the parties. Artist is performing Artists' services as an independent contractor and the doctrine of respondeat superior shall not apply between the City and the Artist. IN WITNESS WHEREOF, the parties have executed this Agreement and caused this Agreement to be effective on the latest day as reflected by the signatures below. Effective Date: CITY ARTIST The City of Southlake, Texas Jane DeDecker Shana Yelverton Title: City Manager By: Jane Dedecker Title: Artist National Sculptors Guild By: Alyson Kinkade, Secretary John Kinkade, President Approved as to Form: By: Taylor, Olson, Adkins, Sralla, and Elam L.L.P City Attorneys STATE OF TEXAS: COUNTY OF TARRANT: BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THIS STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED SHANA YELVERTON, KNOWN TO ME TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO THE FOREGOING INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE EXECUTED THE SAME FOR THE PURPOSE AND CONSIDERATION EXPRESSED, AND IN THE CAPACITY THEREIN STATED. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS DAY OF , 2011. NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS STATE OF COUNTY OF BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THIS STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED SETH VANDABLE KNOWN TO ME TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO THE FOREGOING INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE/SHE EXECUTED THE SAME FOR THE PURPOSE AND CONSIDERATION EXPRESSED, AND IN THE CAPACITY THEREIN STATED. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS DAY OF 2011. NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS EXHIBIT "A" SCOPE OF SERVICES AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND JANE DEDECKER AND THE NATIONAL SCULPTORS GUILD (ARTIST) CREATION OF SCULPTURE FOR THE CITY OF SOUTHLAKE Sculpture The services are to be provided by Jane Dedecker, sculptor, and the National Sculptors Guild in the creation of bronze sculpture for the roundabouts at Dove Road and N. White Chapel, and a second to be located at Continental Blvd and S. White Chapel. 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: L 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 has 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. 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. The Artist shall create and install the Artwork in substantial conformity with the approved Design. Any significant changes in the concept, as defined in Article 5.2, must be approved by the City. It is the responsibility of the Artist to coordinate with the City, and Contractor to ensure that the site is prepared to receive the Artwork. All Artwork installation and site preparation shall be performed during normal business hours. The City will be responsible for preparation of the site, including installation of the footings and pedestals, landscape and lighting. Upon completion of the permanent installation of the Artwork, the City project manager will inspect the work and give notice of acceptance, as provided in this Agreement. EXHIBIT "B" COMPLETION SCHEDULE/ARTWORK BILLING AND BUDGET AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND JANE DEDECKER (ARTIST) CREATION OF SCULPTURES FOR THE CITY OF SOUTHLAKE Task Timeline City Artist Conceptual drawings Month 1 (January Contract signed Provides final 2011) conceptual drawings. Begin work on clay Month 2 Check #1 in the Begins work on figures amount of $60,000 creating clay figures. due (33%) paid upon approval of drawings by City Project Manager. Month 3 On -site visit Continues work on clay figures. Month 4 Continues work on clay figures. Approve clay figures Months 5 - 9 On -site visit in Completes clay and send to foundry month 6 figures. for casting; approve bronze on Approves clay City reviews clay return from Foundry figures and final figures for approval bronze on return from foundry Begins foundry work, if approved by Check 92 in amount City. of $60,000 (33%) paid upon approval Supervises casting of clay figures. process at foundry. City approves final bronze. Final acceptance by Month 10 (October Approve work. Bronze figures project manager; 2011) delivered to City at submit maintenance Check 93 in amount Artist's Studio and worksheets; of $60,000 (33%) installed at Site by dedication. due upon City under Artist's installation. supervision. EXHIBIT "C" MAP OF INSTALLATION SITE Owfol 'l V/aNIN�7CN CT Y�� /I r J � 1 / :';E CONTINENTAL BLVD r I d L rr 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 Signature of Official/Title 2011. 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 12011. Notary Public in and for The State of My commission expires: EXHIBIT "E" INFORMATIONREGARDING VENDOR CONFLICT OFINTEREST QUESTIONNAIRE 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 purchases 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; enters into negotiations with the City for a contract; or 4. applies for a tax abatement and/or economic development incentive that will result in a contract with the City. THE FOLLOWING ARE CONSIDERED OFFICERS OF THE CITY: 1. Mayor and City Council Members; 2. City Manager; 3. Board and Commission members appointed by the Mayor or City Council members; 4. Directors of 4A and 4B development corporations; 5. the executive directors or managers of 4A and 4B development corporations; and 6. Directors of 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:1Southlake\liscellaneous\Chapter 176Attachment CIQ.092608.doc 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 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 form contains mandatory disclosures regarding "employment or business relationships" with a municipal officer. Officials may be asked to clarify or interpret various portions of the questionnaire. WHEN: The person or business must file: 1. 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 Finance Department is required by law to post the statements on 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. W:\SouthlakeMiscellaneous\Chapter 176.Attachment C1Q.092608.doc Page 2 of CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ 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 filer has affiliation or business relationship. Attach additional pages to this Form CIQ as necessary_ A. Is the local government officer named in this section receiving or likely to receive taxable income from the filer of the questionnaire? Yes E-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? Yes E-1 No C. Is the filer of this questionnaire affiliated with a corporation or other business entity thatthe local government officer serves as an officer or director, or holds an ownership of 10 percent or more? F7Yes F7No D_ Describe each affiliation or business relationship_ Describe any other affiliation or business relationship that might cause a conflict of interest. Signature of person doing business with the governmental entity Nate Amended 0 W 3Q000 AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND DARRELL DAVIS (ARTIST) CREATION OF SCULPTURES FOR THE CITY OF SOUTHLAKE made as of the day of January in the Year 2011 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: Darrell Davis 5109 Hidden Oaks Ln. Arlington, TX 76017 Telephone 817 228 3434 for the following Artwork: Creation of a sculpture for the City of Southlake to be located at the roundabout at Dove Road and N. Carroll Avenue. 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 Darrell Davis 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 to be located in the roundabout at Dove Road and N. Carroll Avenue. 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, the parties agree as follows: ARTICLE 1 ARTIST'S SERVICES 1.1 Employment of the Artist - The City hereby agrees to retain the Artist to perform the services set forth herein in connection with the Artwork. Artist agrees to perform such services in accordance with the terms and conditions of this Agreement. 1.2 Design and Installation - The parties agree that Artist shall perform the services set forth and described in Exhibit "A", which is attached and incorporated herein by reference. The Artist shall furnish all materials, labor, tools, equipment, apparatus, facilities and anything else necessary to complete the Artwork in a workmanlike manner. The parties understand and agree that deviations or modifications to the scope of services described in Exhibit "A", in the form of written change orders, may be authorized from time to time by the City. The Artwork shall be delivered and installed by the Artist at its sole cost and expense. Design and installation of the Artwork shall comply with applicable building codes and seismic safety regulations. 1.3 Size of Artwork - The completed Artwork shall be true to the estimated measurements and constructed out of the materials described in Exhibit "A". 1.4 Permits, Licenses, and Taxes - The Contractor for the project shall obtain and maintain during the term of this Agreement, all permits (including a City building permit), licenses, and certificates and pay all taxes that may be required in connection with the performance of services under this Agreement. Notwithstanding any other provision of this Agreement, neither Artist nor Guild shall be charged a fee for issuance of a City building permit or any City license. 1.5 Schedule of Work - The Artist agrees to commence work immediately upon execution of this Agreement and receipt of first payment, and to proceed diligently with said work to completion as described in the Completion Schedule/Artwork Billing and Budget attached as Exhibit `B" and incorporated herein by reference. If the Agreement 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 this Agreement. 1.6 Artwork Installation Site — The Artwork shall be permanently affixed to the installation site, located at the roundabout at N. Carroll Avenue and Dove Road (as described on the map attached as Exhibit "C"), (hereinafter referred to as "the Site"), unless the City exercises its option to relocate as set forth in Section 8.2. The Artist shall design and construct the sculpture and its base so that the art installation will be structurally safe and sound and comply with current municipal building codes and seismic standards in accordance with the Uniform Building Code. ARTICLE 2 THE CITY'S RESPONSIBILITIES 2.1 Artwork Data - The City shall furnish required information that it currently has in its possession, as expeditiously as necessary for the orderly progress of the work, and the Artist shall be entitled to rely upon the accuracy and completeness of such information. 2.2 City Proiect Manager - The City shall designate, when necessary, a representative authorized to act on the City's behalf with respect to the Artwork (the "Project Manager"). The City, by and through this authorized representative, shall examine the documents submitted by the Artist and render any required decisions pertaining thereto as soon as practical so as to avoid unreasonable delay in the progress of the Artist's services. 2.3 Reimbursement for Travel - With prior written City approval, the City shall pay for actual reasonable and necessary costs for transportation, meals and lodging for the Artist while traveling to, from and while residing in North Texas, as well as any and all other necessary costs associated with the Artist's stay in North Texas to commence and complete the Artwork. ARTICLE 3 ARTIST'S COMPENSATION 3.1 Compensation for Artist's Services - As described in "Article 1, Artist's Services", compensation for this Artwork shall be eighty five thousand dollars and no cents ($85,000.00) ("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/Artwork Billing and Budget as set forth in Exhibit "B". The final thirty three percent (33%) of the Artist's Fee, or Twenty eight thousand and nine hundred dollars and no cents ($28,900.00) shall not be paid until the Artist has completed all of the Artwork services and tasks described in Exhibits "A" and "B". The Artist will also be required to fill out the proper paperwork to become an approved vendor of the City before payments commence. 3.2 Artwork Suspension - If the Artwork is suspended or abandoned by the City in whole or in part for more than three (3) months, Artist shall be entitled to compensation for any and all work completed to the satisfaction of City in accordance with the provisions of this Agreement prior to suspension or abandonment. In the event of such suspension or abandonment by the City, Artist shall deliver to City all finished or unfinished documents, data, studies, surveys, drawings, maps, models, reports, photographs and/or any other items prepared by Artist in connection with this Agreement prior to Artist receiving final payment. If the Artwork is resumed after being suspended for more than three (3) months, the Artist's compensation shall be equitably adjusted as approved by the City. Any additional amounts paid to the Artist after the Artwork is resumed shall be agreed upon in writing by both parties before the services are performed. ARTICLE 4 OWNERSHIP AND COPYRIGHT 4.1 Ownership of Work - The Artwork is the property of the City; The Artist retains Copyright in and to the Artwork under the Copyright Act of 1976, 17 U.S.C., Section 101, et seq. The Artist reserves the right to produce the Artwork at any size. Each edition will be clearly marked as a limited edition. If the City should desire to place the Artwork in a location that is not shown on Exhibit B, the City shall first notify the Artist consistent with Section D herein as to the new location. The City shall be entitled to copies of the plans that are prepared by the Artist in connection with the development and fabrication of the Artwork under this Agreement. The ownership of the sculpture is transferred to the City upon full payment of Artwork described in Exhibits "A" and "B". 4.2 Ownership of Copyright - Artist shall retain the copyright to the Artwork. Artist shall take all steps, at his own expense, to protect the copyright of the Artwork. 4.3 License to City - The Artist irrevocably licenses the City, its employees, representatives, officers and agents, the right to make photographs, two dimensional reproductions, and adaptations of the work for educational, public relations, arts promotional and other non-commercial purposes. For the purposes of this Agreement, the following, among others, are deemed to be reproductions and/or adaptations for non-commercial purposes: reproduction in exhibition catalogues, websites, books, slides, photographs, postcards, posters, and calendars; in magazines, books, art and news sections of newspapers; in general books and magazines not primarily devoted to art but of an educational, historical or critical nature; slides, videos and film strips not intended for a mass audience, and television from stations operated for educational purposes or on programs for educational and news purposes from all stations. All aforementioned work product created by Darrell Davis will include the words: SCULPTURED BY DARRELL DAVIS. 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 Darrell Davis or © Darrell Davis 4.5 Representations and Warranties Regarding Copyright — The Artist represents and warrants that the Artwork is an original creation of Artist's and will not infringe the copyright, trademark, or other intangible rights of any third party. 4.6 Warranty of Title — The Artist represents and warrants that the Artwork is free and clear of all liens from any source whatsoever. ARTICLE 5 FABRICATION 5.1 Specifications — Artist will create the Artwork, or cause it to be fabricated, in substantial conformity with the specifications set forth in Exhibit "A". 5.2 Changes — Any significant changes to the Artwork by either Artist or as requested by City will be approved in writing by the other party. For purposes of this Agreement, a "significant change" will mean any change, including but not limited to, a change in the scope, design, color, size, or material of the Artwork, which affects cost, installation, site preparation, maintenance and concept as described in Exhibit "A". If Artist wishes to make a significant change to the Artwork, he must request written approval of the change in writing at the address provided in Article 14. the City will provide a written response within thirty (30) calendar days of receipt of the request. 5.3 Review of the Artwork — The City will be given access to the Artwork during reasonable business hours at Artist's or fabricator's studio in order to review the Artwork and Artist's or fabricator's progress with fabrication of the Artwork. Alternatively, the City requests and shall be given photographic documentation of Artist's progress to verify each stage that triggers payment pursuant to Section 3.1 above. 5.4 Notification of Fabrication Completion — Artist will notify the City in writing in the manner provided in Article 14 below when the Artwork is completed and ready for delivery. Designated representatives of the City will have the opportunity to inspect the Artwork for conformity with the design and structural requirements of this Agreement prior to delivery and to give written approval or disapproval of the Artwork within thirty (30) business days following notice from the Artist. As an alternative to the studio inspection, photographic documentation may be submitted to the City upon completion of the Artwork. 5.5 Preparation of Site — Regarding installation of the Artwork, cooperation from the City's designated staff and contractor is required. City will provide Artist with the specifications and drawings for the specific area at the site where the Artwork is to be 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. The City will be responsible for the installation at its location, including the crane and related equipment; labor, barricades and traffic control and costs of travel as described in Section 2.3. Darrell Davis will act as a consultant for said installation but shall not receive an additional fee for Artist's time and weather. 5.6 Warranty of Craftsmanship — The Artist warrants that the Artwork will be free of defects in workmanship and materials. In the event that any defects become apparent in the workmanship or materials within two (2) years of the completion of the Artwork by the Artist and acceptance of the Artwork by the City, Artist will remedy any defects at Artist's sole cost and expense during this period. ARTICLE 6 STORAGE 6.1 Storage - Storage of the Artwork, not to exceed fifteen (15) days, after the acceptance by City, will be at Darrell Davis' studio. ARTICLE 7 FINAL APPROVAL OF ARTWORK 7.1 Final Acceptance - City will inspect the Artwork prior to taking delivery to determine whether it conforms with all of the requirements of this Agreement. The Artist shall furnish City with a full written narrative description of the Artwork. If the City finds that any aspect of the Artwork is not in conformance with this Agreement, the City will notify Artist in writing and Artist will have a reasonable time and opportunity to address and cure any defects, requests or concerns of the City. Final acceptance shall be determined by the City in its sole and absolute discretion. The City shall notify the Artist in writing of its final acceptance of the Artwork. In no event shall the final acceptance occur more than thirty (30) days from the date of installation. 7.2 Title and Final Acceptance - Title of ownership of the Artwork shall pass to the City upon final acceptance. ARTICLE 8 INTEGRITY OF THE WORK 8.1 Routine Maintenance — The Artist shall provide to City written instructions for appropriate routine maintenance and preservation of the Artwork, including moving and installation of the Artwork. 8.2 Repairs - The City undertakes to exercise reasonable care to protect, repair, and maintain the work. Artist agrees to cooperate with and advise the City without charging the City in connection with any such non -routine maintenance, including, without limitation, damage by acts of God, vandalism, conservation and/or replacement of any portion of the Artwork to the extent that the Artist is able to do so. During Artist's lifetime, the City will not undertake any non -routine maintenance on the Artwork without attempting to consult with the Artist or the Artist's authorized representative unless required by an emergency. 8.3 Relocation of the Work — To the extent that the Artwork is capable of being relocated, the City shall have the right to do so. If feasible, the City shall attempt to consult with the Artist concerning the relocation of the Artwork prior to any such relocation; however, the Artist's approval is not required for the relocation, if any. If the Artist is not pleased with such relocation, he or she shall have the right to renounce credit for the Artwork. If Artist renounces credit for his Artwork, this would include, among other things, assignment to the City of the copyrights described herein. 8.4 Credit — The City agrees, at its own expense, to prepare and install at or near the Artwork a public notice, the form and exact location of which shall be solely determined by City, giving Artist credit for the creation of the Artwork. ARTICLE 9 RISK OF LOSS/INSURANCE COVERAGE 9.1 Risk of Loss — The risk of loss or damage to the Artwork shall be borne by the Artist until final acceptance, and the Artist shall take such measures as are reasonable to protect the Artwork and the materials relating hereto from loss or damage until final acceptance. 9.2 Insurance — The Artist, consistent with the Artist's status as an independent contractor, shall carry, and shall require any of its subcontractors to carry, at least the following insurance in such form, with such companies, and in such amounts (unless otherwise specified) as City may require: 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. 9.3 Insurance Requirements - The Artist shall: i. Name the City, its officers, agents, representatives, and employees as additional insured's as to all applicable coverage with the exception of workers' compensation insurance; ii. Provide for at least thirty (30) days prior written notice to the City for cancellation, non -renewal, or material change of the insurance; and iii. Provide for a waiver of subrogation against the City for injuries, including death, property damage, or any other loss to the extent the same is covered by the proceeds of insurance. 9.4 Insurance Company Qualification — All insurance companies providing the required insurance shall be authorized to transact business in Texas and rated at least "A" by AM Best or other equivalent rating service. 9.5 Certificate of Insurance — A certificate of insurance evidencing the required insurance shall be submitted no later than the date of the execution of this Agreement. If this Agreement is renewed or extended by the City, a certificate of insurance shall also be provided to the City prior to the date the Agreement is renewed or extended. ARTICLE 10 AUDITS AND RECORDS/PROHIBITED INTERESTNENDOR DISCLOSURE The Artist agrees that at any time during normal business hours and as often as City may deem necessary, Artist shall make available to representatives of the City for examination all of the Artist's records with respect to all matters covered by this Agreement, and will permit such representatives of the City to audit, examine, copy and make excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement, all for a period of four (4) years from the date of final settlement of this Agreement or for such other or longer period, if any, as may be required by applicable statute or other lawful requirement. The Artist agrees that the Artist is aware of the prohibited interest requirement of the City Charter, which is repeated on the Affidavit attached hereto as Exhibit "D" and incorporated herein by reference for all purposes, and will abide by the same. Further, a lawful representative of Artist shall execute the Affidavit. Artist understands and agrees that the existence of a prohibited interest during the term of this Agreement will render the Agreement voidable. The Artist agrees that the Artist is further aware of the vendor disclosure requirements set forth in Chapter 176, Local Government Code, as amended, and will abide by the same. In this connection, a lawful representative of the Artist shall execute the Conflict of Interest Questionnaire, Form CIQ, attached hereto as Exhibit "E" and incorporated herein for all purposes. ARTICLE 11 TERMINATION OF AGREEMENPREMEDIES 11.1 Artist Default — Failure or refusal of the Artist to perform any act herein required, unless mutually agreed to in writing by the City and the Artist, shall constitute a default. Artist shall be given a reasonable time within which to cure said default after receiving said notice in writing. In the event of a default, in addition to any other remedy available to the City, this Agreement may be terminated by the City upon ten (10) days written notice. Such notice does not waive any other legal remedies available to the City. 11.2 Conditions for Termination of Agreement Other than Artist's Default — If the City deems, in its sole discretion, the Artwork design is inappropriate or unworkable for the site, or if the deadlines 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 Artwork cannot be completed within the budget, the City retains the right to terminate this Agreement and is released from the obligation to enter into fabrication and installation of the Artist's design concept for the Artwork. In the event of any termination, Artist shall deliver to City all work, entirely or partially completed that Artist has been compensated for. The Artist shall receive full payment for services satisfactorily performed (as outlined in Exhibit "B"), and as solely determined by the City. The City shall make this final payment within thirty (30) days of notifying the Artist. 11.3 Remedies Cumulative - The rights and remedies provided by this Agreement are cumulative, and the use of any one right or remedy by either party shall not preclude or waive its rights to use any or all other remedies. These rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise. ARTICLE 12 DISPUTE RESOLUTION/MEDIATION In addition to all remedies at law, the parties may resolve/mediate any controversy, claim or dispute arising out of or relating to the interpretation or performance of this Agreement, or breach thereof, by voluntary mediation to be conducted by a mutually acceptable mediator. The cost of the mediation shall be divided equally between the Artist and the City. ARTICLE 13 INDEMNITY Indemnification - Artist agrees to defend, indemnify and hold harmless the City, all of its officers, Council members, agents and employees from and against all claims, actions, suits, demands, proceedings, costs, damages and liabilities, including reasonable attorneys' fees, court costs and related expenses, arising out of, connected with, or resulting from any acts or omissions of Artist or any agent, employee, subcontractor, or supplier of Artist in the execution or performance of this contract without regard to whether such persons are under the direction of City agents or employees. The Artist agrees to protect and indemnify the City, all of its officers, Council members, agents and employees, from all claims, actions, suits, demands, proceedings, costs, damages and liabilities, including reasonable attorneys' fees, court costs and related expenses, arising out of any alleged infringement of patents or copyrights arising from the Artist's performance under the Artist's Bid or this Agreement, including attorneys' fees and court costs. The provisions of this Article shall survive the termination or expiration of this Agreement. ARTICLE 14 NOTICES Artist agrees that all notices or communications to City permitted or required under this Agreement shall be delivered to City at the following addresses: Assistant City Manager: Jim Blagg Project Manager: Kerry McGeath 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: Darrell Davis 5109 Hidden Oaks Ln. Arlington, TX 76017 Phone no: 817 228 3434 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 parry may change the address to which notice may be sent to that party by giving written notice of such change to the other party in accordance with the provisions of this Agreement. ARTICLE 15 MISCELLANEOUS 15.1 Complete Agreement - This Agreement, including the exhibits hereto labeled "A" through "E", all of which are incorporated herein for all purposes, constitute the entire agreement by and between the parties regarding the subject matter hereof and supersedes all prior and/or contemporaneous written and/or oral understandings. This Agreement may not be amended, supplemented, and/or modified except by written agreement duly executed by both parties. To the extent that any provision of this Agreement should conflict with the provisions of an exhibit, the provisions of this Agreement shall prevail. 15.2 Assignment and Subletting - The Artist agrees that neither this Agreement nor the work to be performed hereunder will be assigned or sublet without the prior written consent of the City. The Artist further agrees that the assignment or subletting of any portion or feature of the work or materials required in the performance of this Agreement shall not relieve the Artist of its full obligations to the City as provided by this Agreement. All such approved work performed by assignment or subletting shall be billed through Artist, and there shall be no third party billing. 15.3 Successors and Assigns - City and Artist, and their partners, assigns, successors, subcontractors, executors, officers, agents, employees, representatives, and administrators are hereby bound to the terms and conditions of this Agreement. 15.4 Severability - In the event a term, condition, or provision of this Agreement is determined to be invalid, illegal, void, unenforceable, or unlawful by a court of competent jurisdiction, then that term, condition, or provision, shall be deleted and the remainder of the Agreement shall remain in full force and effect as if such invalid, illegal, void, unenforceable or unlawful provision had never been contained herein. 15.5 Venue - This entire Agreement is performable in Tarrant County, Texas and the venue for any action related directly or indirectly, to this Agreement or in any manner connected therewith shall be Tarrant County, Texas, and this Agreement shall be construed under the laws of the State of Texas. 15.6 Execution/Consideration - This Agreement is executed by the parties hereto without coercion or duress for a substantial consideration, the receipt and sufficiency of which is forever confessed. 15.7 Authority - The individuals executing this Agreement on behalf of the respective parties below represent to each other that all appropriate and necessary action has been taken to authorize the individual who is executing this Agreement to do so for and on behalf of the party for which his or her signature appears, that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and binding agreement on the party for whom the individual is signing this Agreement and that each individual affixing his or her signature hereto is authorized to do so, and such authorization is valid and effective on the date thereof. 15.8 Waiver - Waiver by either party of any breach of this Agreement, or the failure of either party to enforce any of the provisions of this Agreement, at any time, shall not in any way affect, limit or waive such party's right thereafter to enforce and compel strict compliance. 15.9 Headings - The headings of the various sections of this Agreement are included solely for convenience of reference and are not to be full or accurate descriptions of the content thereof. 15.10 Multiple Counterparts -This Agreement maybe executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. A facsimile signature will also be deemed to constitute an original if properly executed. 15.11 Sovereign Immunity —The parties agree that the City has not waived its sovereign immunity or any other legal defense by entering into and performing its obligations under this Agreement. 15.12 Representations — Each signatory represents that this Agreement has been read by the party for which this Agreement is executed and that such party has had the opportunity to confer with its counsel. 15.13 Miscellaneous Drafting Provisions — This Agreement shall be deemed drafted equally by all parties hereto. The language of all 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 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 15.15 Relationship of Parties — The provisions of this Agreement shall not be construed to create a partnership or joint venture between the parties. Artist is performing Artists' services as an independent contractor and the doctrine of respondeat superior shall not apply between the City and the Artist. IN WITNESS WHEREOF, the parties have executed this Agreement and caused this Agreement to be effective on the latest day as reflected by the signatures below. Effective Date: CITY ARTIST The City of Southlake, Texas Darrell Davis By: By: Shana Yelverton Title: City Manager Approved as to Form: By: Taylor, Olson, Adkins, Sralla, and Elam L.L.P City Attorneys Darrell Davis Title: Artist 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 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 2011. NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS STATE OF COUNTY OF BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THIS STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED SETH VANDABLE KNOWN TO ME TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO THE FOREGOING INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE/SHE EXECUTED THE SAME FOR THE PURPOSE AND CONSIDERATION EXPRESSED, AND IN THE CAPACITY THEREIN STATED. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS DAY OF 2011. NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS EXHIBIT "A" SCOPE OF SERVICES AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND DARRELL DAVIS (ARTIST) CREATION OF SCULPTURE FOR THE CITY OF SOUTHLAKE Sculpture The services are to be provided by Darrell Davis, sculptor, in the creation of a bronze sculpture for the roundabout at Dove Road and N. Carroll Street 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: L Design, fabricate, ship and install the sculptures: H. Provide the material for all of the sculptures. I. Darrell Davis will sculpt the above described sculptures in clay for approval. J. Provide appropriate packing and ship the sculptures to the site. K. Install the sculptures on footings and/or pedestals built by the Contractor. L. Consult with City of Southlake in the design and creation of the site rooms that will stage the Artwork as necessary. M. Create the drawings and templates for the bas relief as well as any bronze or stainless steel elements of the bas relief. N. Supervise and assist a subcontractor in the creation of the has 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. 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. The Artist shall create and install the Artwork in substantial conformity with the approved Design. Any significant changes in the concept, as defined in Article 5.2, must be approved by the City. It is the responsibility of the Artist to coordinate with the City, and Contractor to ensure that the site is prepared to receive the Artwork. All Artwork installation and site preparation shall be performed during normal business hours. The City will be responsible for preparation of the site, including installation of the footings and pedestals, landscape and lighting. Upon completion of the permanent installation of the Artwork, the City project manager will inspect the work and give notice of acceptance, as provided in this Agreement. EXHIBIT "B" COMPLETION SCHEDULE/ARTWORK BILLING AND BUDGET AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND DARRELL DAVIS (ARTIST) CREATION OF SCULPTURES FOR THE CITY OF SOUTHLAKE Task Timeline City Artist Conceptual drawings Month 1 (January Contract signed Provides final 2011) conceptual drawings. Begin work on clay Month 2 Check #1 in the Begins work on figures amount of $28,050 creating clay figures. due (33%) paid upon approval of drawings by City Project Manager. Month 3 On -site visit Continues work on clay figures. Month 4 Continues work on clay figures. Approve clay figures Months 5 - 9 On -site visit in Completes clay and send to foundry month 6 figures. for casting; approve bronze on Approves clay City reviews clay return from Foundry figures and final figures for approval bronze on return from foundry Begins foundry work, if approved by Check #2 in amount City. of $28,050 (33%) paid upon approval Supervises casting of clay figures. process at foundry. City approves final bronze. Final acceptance by Month 10 (October Approve work. Bronze figures project manager; 2011) delivered to City at submit maintenance Check #3 in amount Artist's Studio and worksheets; of $28,900 (33%) installed at Site by dedication. due upon City under Artist's installation. supervision. EXHIBIT "C" MAP OF INSTALLATION SITE 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 Signature of Official/Title 2011. 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 12011. Notary Public in and for The State of My commission expires: EXHIBIT "E" INFORMATIONREGARDING VENDOR CONFLICT OFINTEREST QUESTIONNAIRE 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 purchases 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; enters into negotiations with the City for a contract; or 4. applies for a tax abatement and/or economic development incentive that will result in a contract with the City. THE FOLLOWING ARE CONSIDERED OFFICERS OF THE CITY: 1. Mayor and City Council Members; 2. City Manager; 3. Board and Commission members appointed by the Mayor or City Council members; 4. Directors of 4A and 4B development corporations; 5. the executive directors or managers of 4A and 4B development corporations; and 6. Directors of 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:1Southlake\liscellaneous\Chapter 176Attachment CIQ.092608.doc 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 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 form contains mandatory disclosures regarding "employment or business relationships" with a municipal officer. Officials may be asked to clarify or interpret various portions of the questionnaire. WHEN: The person or business must file: 1. 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 Finance Department is required by law to post the statements on 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. W:\SouthlakeMiscellaneous\Chapter 176.Attachment C1Q.092608.doc Page 2 of CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ 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 filer has affiliation or business relationship. Attach additional pages to this Form CIQ as necessary_ A. Is the local government officer named in this section receiving or likely to receive taxable income from the filer of the questionnaire? Yes E-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? Yes E-1 No C. Is the filer of this questionnaire affiliated with a corporation or other business entity thatthe local government officer serves as an officer or director, or holds an ownership of 10 percent or more? F7Yes F7No D_ Describe each affiliation or business relationship_ Describe any other affiliation or business relationship that might cause a conflict of interest. Signature of person doing business with the governmental entity Nate Amended 0 W 3Q000 AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND SETH VANDABLE (ARTIST) CREATION OF SCULPTURES FOR THE CITY OF SOUTHLAKE made as of the day of January in the Year 2011 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: Seth Vandable P.O. Box 2466 Cedar Hill, TX 75106 Telephone 972-293-8151 for the following Artwork: Creation of a sculpture for the City of Southlake to be located at the roundabout at S. Carroll Avenue, Continental Boulevard, and Brumlow Avenue. 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 Seth Vandable 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 to be located in the roundabout at S. Carroll Avenue, Continental Boulevard, and Brumlow Avenue, and 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, the parties agree as follows: ARTICLE 1 ARTIST'S SERVICES 1.1 Employment of the Artist - The City hereby agrees to retain the Artist to perform the services set forth herein in connection with the Artwork. Artist agrees to perform such services in accordance with the terms and conditions of this Agreement. 1.2 Design and Installation - The parties agree that Artist shall perform the services set forth and described in Exhibit "A", which is attached and incorporated herein by reference. The Artist shall furnish all materials, labor, tools, equipment, apparatus, facilities and anything else necessary to complete the Artwork in a workmanlike manner. The parties understand and agree that deviations or modifications to the scope of services described in Exhibit "A", in the form of written change orders, may be authorized from time to time by the City. The Artwork shall be delivered and installed by the Artist at its sole cost and expense. Design and installation of the Artwork shall comply with applicable building codes and seismic safety regulations. 1.3 Size of Artwork - The completed Artwork shall be true to the estimated measurements and constructed out of the materials described in Exhibit "A". 1.4 Permits, Licenses, and Taxes - The Contractor for the project shall obtain and maintain during the term of this Agreement, all permits (including a City building permit), licenses, and certificates and pay all taxes that may be required in connection with the performance of services under this Agreement. Notwithstanding any other provision of this Agreement, neither Artist nor Guild shall be charged a fee for issuance of a City building permit or any City license. 1.5 Schedule of Work - The Artist agrees to commence work immediately upon execution of this Agreement and receipt of first payment, and to proceed diligently with said work to completion as described in the Completion Schedule/Artwork Billing and Budget attached as Exhibit `B" and incorporated herein by reference. If the Agreement 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 this Agreement. 1.6 Artwork Installation Site — The Artwork shall be permanently affixed to the installation site, located at the roundabout at S. Carroll Avenue, Continental Boulevard, and Brumlow Avenue, (as described on the map attached as Exhibit "C"), (hereinafter referred to as "the Site"), unless the City exercises its option to relocate as set forth in Section 8.2. The Artist shall design and construct the sculpture and its base so that the art installation will be structurally safe and sound and comply with current municipal building codes and seismic standards in accordance with the Uniform Building Code. ARTICLE 2 THE CITY'S RESPONSIBILITIES 2.1 Artwork Data - The City shall furnish required information that it currently has in its possession, as expeditiously as necessary for the orderly progress of the work, and the Artist shall be entitled to rely upon the accuracy and completeness of such information. 2.2 City Proiect Manager - The City shall designate, when necessary, a representative authorized to act on the City's behalf with respect to the Artwork (the "Project Manager"). The City, by and through this authorized representative, shall examine the documents submitted by the Artist and render any required decisions pertaining thereto as soon as practical so as to avoid unreasonable delay in the progress of the Artist's services. 2.3 Reimbursement for Travel - With prior written City approval, the City shall pay for actual reasonable and necessary costs for transportation, meals and lodging for the Artist while traveling to, from and while residing in North Texas, as well as any and all other necessary costs associated with the Artist's stay in North Texas to commence and complete the Artwork. ARTICLE 3 ARTIST'S COMPENSATION 3.1 Compensation for Artist's Services - As described in "Article 1, Artist's Services", compensation for this Artwork shall be eighty five thousand dollars and no cents ($85,000.00) ("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/Artwork Billing and Budget as set forth in Exhibit "B". The final thirty three percent (33%) of the Artist's Fee, or Twenty eight thousand and nine hundred dollars and no cents ($28,900.00) shall not be paid until the Artist has completed all of the Artwork services and tasks described in Exhibits "A" and "B". The Artist will also be required to fill out the proper paperwork to become an approved vendor of the City before payments commence. 3.2 Artwork Suspension - If the Artwork is suspended or abandoned by the City in whole or in part for more than three (3) months, Artist shall be entitled to compensation for any and all work completed to the satisfaction of City in accordance with the provisions of this Agreement prior to suspension or abandonment. In the event of such suspension or abandonment by the City, Artist shall deliver to City all finished or unfinished documents, data, studies, surveys, drawings, maps, models, reports, photographs and/or any other items prepared by Artist in connection with this Agreement prior to Artist receiving final payment. If the Artwork is resumed after being suspended for more than three (3) months, the Artist's compensation shall be equitably adjusted as approved by the City. Any additional amounts paid to the Artist after the Artwork is resumed shall be agreed upon in writing by both parties before the services are performed. ARTICLE 4 OWNERSHIP AND COPYRIGHT 4.1 Ownership of Work - The Artwork is the property of the City; The Artist retains Copyright in and to the Artwork under the Copyright Act of 1976, 17 U.S.C., Section 101, et seq. The Artist reserves the right to produce the Artwork at any size. Each edition will be clearly marked as a limited edition. If the City should desire to place the Artwork in a location that is not shown on Exhibit B, the City shall first notify the Artist consistent with Section D herein as to the new location. The City shall be entitled to copies of the plans that are prepared by the Artist in connection with the development and fabrication of the Artwork under this Agreement. The ownership of the sculpture is transferred to the City upon full payment of Artwork described in Exhibits "A" and "B". 4.2 Ownership of Copyright - Artist shall retain the copyright to the Artwork. Artist shall take all steps, at his own expense, to protect the copyright of the Artwork. 4.3 License to City - The Artist irrevocably licenses the City, its employees, representatives, officers and agents, the right to make photographs, two dimensional reproductions, and adaptations of the work for educational, public relations, arts promotional and other non-commercial purposes. For the purposes of this Agreement, the following, among others, are deemed to be reproductions and/or adaptations for non-commercial purposes: reproduction in exhibition catalogues, websites, books, slides, photographs, postcards, posters, and calendars; in magazines, books, art and news sections of newspapers; in general books and magazines not primarily devoted to art but of an educational, historical or critical nature; slides, videos and film strips not intended for a mass audience, and television from stations operated for educational purposes or on programs for educational and news purposes from all stations. All aforementioned work product created by Seth Vandable will include the words: SCULPTED BY SETH VANDABLE. 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 Seth Vandable or © Seth Vandable 4.5 Representations and Warranties Regarding Copyright — The Artist represents and warrants that the Artwork is an original creation of Artist's and will not infringe the copyright, trademark, or other intangible rights of any third party. 4.6 Warranty of Title — The Artist represents and warrants that the Artwork is free and clear of all liens from any source whatsoever. ARTICLE 5 FABRICATION 5.1 Specifications — Artist will create the Artwork, or cause it to be fabricated, in substantial conformity with the specifications set forth in Exhibit "A". 5.2 Changes — Any significant changes to the Artwork by either Artist or as requested by City will be approved in writing by the other party. For purposes of this Agreement, a "significant change" will mean any change, including but not limited to, a change in the scope, design, color, size, or material of the Artwork, which affects cost, installation, site preparation, maintenance and concept as described in Exhibit "A". If Artist wishes to make a significant change to the Artwork, he must request written approval of the change in writing at the address provided in Article 14. The City will provide a written response within thirty (30) calendar days of receipt of the request. 5.3 Review of the Artwork — The City will be given access to the Artwork during reasonable business hours at Artist's or fabricator's studio in order to review the Artwork and Artist's or fabricator's progress with fabrication of the Artwork. Alternatively, the City requests and shall be given photographic documentation of Artist's progress to verify each stage that triggers payment pursuant to Section 3.1 above. 5.4 Notification of Fabrication Completion — Artist will notify the City in writing in the manner provided in Article 14 below when the Artwork is completed and ready for delivery. Designated representatives of the City will have the opportunity to inspect the Artwork for conformity with the design and structural requirements of this Agreement prior to delivery and to give written approval or disapproval of the Artwork within thirty (30) business days following notice from the Artist. As an alternative to the studio inspection, photographic documentation may be submitted to the City upon completion of the Artwork. 5.5 Preparation of Site — Regarding installation of the Artwork, cooperation from the City's designated staff and contractor is required. City will provide Artist with the specifications and drawings for the specific area at the site where the Artwork is to be 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. The City will be responsible for the installation at its location, including the crane and related equipment; labor, barricades and traffic control and costs of travel as described in Section 2.3. Seth Vandable will act as a consultant for said installation but shall not receive an additional fee for Artist's time and weather. 5.6 Warranty of Craftsmanship — The Artist warrants that the Artwork will be free of defects in workmanship and materials. In the event that any defects become apparent in the workmanship or materials within two (2) years of the completion of the Artwork by the Artist and acceptance of the Artwork by the City, Artist will remedy any defects at Artist's sole cost and expense during this period. ARTICLE 6 STORAGE 6.1 Storage - Storage of the Artwork, not to exceed fifteen (15) days, after the acceptance by City, will be at Seth Vandable's studio. ARTICLE 7 FINAL APPROVAL OF ARTWORK 7.1 Final Acceptance - City will inspect the Artwork prior to taking delivery to determine whether it conforms with all of the requirements of this Agreement. The Artist shall furnish City with a full written narrative description of the Artwork. If the City finds that any aspect of the Artwork is not in conformance with this Agreement, the City will notify Artist in writing and Artist will have a reasonable time and opportunity to address and cure any defects, requests or concerns of the City. Final acceptance shall be determined by the City in its sole and absolute discretion. The City shall notify the Artist in writing of its final acceptance of the Artwork. In no event shall the final acceptance occur more than thirty (30) days from the date of installation. 7.2 Title and Final Acceptance - Title of ownership of the Artwork shall pass to the City upon final acceptance. ARTICLE 8 INTEGRITY OF THE WORK 8.1 Routine Maintenance — The Artist shall provide to City written instructions for appropriate routine maintenance and preservation of the Artwork, including moving and installation of the Artwork. 8.2 Repairs - The City undertakes to exercise reasonable care to protect, repair, and maintain the work. Artist agrees to cooperate with and advise the City without charging the City in connection with any such non -routine maintenance, including, without limitation, damage by acts of God, vandalism, conservation and/or replacement of any portion of the Artwork to the extent that the Artist is able to do so. During Artist's lifetime, the City will not undertake any non -routine maintenance on the Artwork without attempting to consult with the Artist or the Artist's authorized representative unless required by an emergency. 8.3 Relocation of the Work — To the extent that the Artwork is capable of being relocated, the City shall have the right to do so. If feasible, the City shall attempt to consult with the Artist concerning the relocation of the Artwork prior to any such relocation; however, the Artist's approval is not required for the relocation, if any. If the Artist is not pleased with such relocation, he or she shall have the right to renounce credit for the Artwork. If Artist renounces credit for his Artwork, this would include, among other things, assignment to the City of the copyrights described herein. 8.4 Credit — The City agrees, at its own expense, to prepare and install at or near the Artwork a public notice, the form and exact location of which shall be solely determined by City, giving Artist credit for the creation of the Artwork. ARTICLE 9 RISK OF LOSSANSURANCE COVERAGE 9.1 Risk of Loss — The risk of loss or damage to the Artwork shall be borne by the Artist until final acceptance, and the Artist shall take such measures as are reasonable to protect the Artwork and the materials relating hereto from loss or damage until final acceptance. 9.2 Insurance — The Artist, consistent with the Artist's status as an independent contractor, shall carry, and shall require any of its subcontractors to carry, at least the following insurance in such form, with such companies, and in such amounts (unless otherwise specified) as City may require: vii. 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; viii. 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; ix. Comprehensive Automobile Liability insurance covering all owned, non - owned or hired automobiles to be used by the Contractor, with coverage for at least One Million Dollars ($1,000,000) Combined Single Limit Bodily Injury and Property Damage. 9.3 Insurance Requirements - The Artist shall: i. Name the City, its officers, agents, representatives, and employees as additional insured's as to all applicable coverage with the exception of workers' compensation insurance; ii. Provide for at least thirty (30) days prior written notice to the City for cancellation, non -renewal, or material change of the insurance; and iii. Provide for a waiver of subrogation against the City for injuries, including death, property damage, or any other loss to the extent the same is covered by the proceeds of insurance. 9.4 Insurance Company Oualification — All insurance companies providing the required insurance shall be authorized to transact business in Texas and rated at least "A" by AM Best or other equivalent rating service. 9.5 Certificate of Insurance — A certificate of insurance evidencing the required insurance shall be submitted no later than the date of the execution of this Agreement. If this Agreement is renewed or extended by the City, a certificate of insurance shall also be provided to the City prior to the date the Agreement is renewed or extended. ARTICLE 10 AUDITS AND RECORDS/PROHIBITED INTERESTNENDOR DISCLOSURE The Artist agrees that at any time during normal business hours and as often as City may deem necessary, Artist shall make available to representatives of the City for examination all of the Artist's records with respect to all matters covered by this Agreement, and will permit such representatives of the City to audit, examine, copy and make excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement, all for a period of four (4) years from the date of final settlement of this Agreement or for such other or longer period, if any, as may be required by applicable statute or other lawful requirement. The Artist agrees that the Artist is aware of the prohibited interest requirement of the City Charter, which is repeated on the Affidavit attached hereto as Exhibit "D" and incorporated herein by reference for all purposes, and will abide by the same. Further, a lawful representative of Artist shall execute the Affidavit. Artist understands and agrees that the existence of a prohibited interest during the term of this Agreement will render the Agreement voidable. The Artist agrees that the Artist is further aware of the vendor disclosure requirements set forth in Chapter 176, Local Government Code, as amended, and will abide by the same. In this connection, a lawful representative of the Artist shall execute the Conflict of Interest Questionnaire, Form CIQ, attached hereto as Exhibit "E" and incorporated herein for all purposes. ARTICLE 11 TERMINATION OF AGREEMENT/REMEDIES 11.1 Artist Default — Failure or refusal of the Artist to perform any act herein required, unless mutually agreed to in writing by the City and the Artist, shall constitute a default. Artist shall be given a reasonable time within which to cure said default after receiving said notice in writing. In the event of a default, in addition to any other remedy available to the City, this Agreement may be terminated by the City upon ten (10) days written notice. Such notice does not waive any other legal remedies available to the City. 11.2 Conditions for Termination of Agreement Other than Artist's Default — If the City deems, in its sole discretion, the Artwork design is inappropriate or unworkable for the site, or if the deadlines 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 Artwork cannot be completed within the budget, the City retains the right to terminate this Agreement and is released from the obligation to enter into fabrication and installation of the Artist's design concept for the Artwork. In the event of any termination, Artist shall deliver to City all work, entirely or partially completed that Artist has been compensated for. The Artist shall receive full payment for services satisfactorily performed (as outlined in Exhibit "B"), and as solely determined by the City. The City shall make this final payment within thirty (30) days of notifying the Artist. 11.3 Remedies Cumulative - The rights and remedies provided by this Agreement are cumulative, and the use of any one right or remedy by either party shall not preclude or waive its rights to use any or all other remedies. These rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise. ARTICLE 12 DISPUTE RESOLUTION/MEDIATION in addition to all remedies at law, the parties may resolve/mediate any controversy, claim or dispute arising out of or relating to the interpretation or performance of this Agreement, or breach thereof, by voluntary mediation to be conducted by a mutually acceptable mediator. The cost of the mediation shall be divided equally between the Artist and the City. ARTICLE 13 INDEMNITY Indemnification - Artist agrees to defend, indemnify and hold harmless the City, all of its officers, Council members, agents and employees from and against all claims, actions, suits, demands, proceedings, costs, damages and liabilities, including reasonable attorneys' fees, court costs and related expenses, arising out of, connected with, or resulting from any acts or omissions of Artist or any agent, employee, subcontractor, or supplier of Artist in the execution or performance of this contract without regard to whether such persons are under the direction of City agents or employees. The Artist agrees to protect and indemnify the City, all of its officers, Council members, agents and employees, from all claims, actions, suits, demands, proceedings, costs, damages and liabilities, including reasonable attorneys' fees, court costs and related expenses, arising out of any alleged infringement of patents or copyrights arising from the Artist's performance under the Artist's Bid or this Agreement, including attorneys' fees and court costs. The provisions of this Article shall survive the termination or expiration of this Agreement. ARTICLE 14 NOTICES Artist agrees that all notices or communications to City permitted or required under this Agreement shall be delivered to City at the following addresses: 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: Seth Vandable P.O. Box 2466 Cedar Hill, TX 75106 Any notice provided for under the terms of this Agreement by either party to the other shall be in writing and may be effected by registered or certified mail, return receipt requested. All notices or communication required to be given in writing by one party or the other shall be considered as having been given to the addressee on the date such notice or communication is postmarked by the sending party. Each party may change the address to which notice may be sent to that party by giving written notice of such change to the other party in accordance with the provisions of this Agreement. ARTICLE 15 MISCELLANEOUS 15.1 Complete Agreement - This Agreement, including the exhibits hereto labeled "A" through "E", all of which are incorporated herein for all purposes, constitute the entire agreement by and between the parties regarding the subject matter hereof and supersedes all prior and/or contemporaneous written and/or oral understandings. This Agreement may not be amended, supplemented, and/or modified except by written agreement duly executed by both parties. To the extent that any provision of this Agreement should conflict with the provisions of an exhibit, the provisions of this Agreement shall prevail. 15.2 Assignment and Subletting - The Artist agrees that neither this Agreement nor the work to be performed hereunder will be assigned or sublet without the prior written consent of the City. The Artist further agrees that the assignment or subletting of any portion or feature of the work or materials required in the performance of this Agreement shall not relieve the Artist of its full obligations to the City as provided by this Agreement. All such approved work performed by assignment or subletting shall be billed through Artist, and there shall be no third party billing. 15.3 Successors and Assigns - City and Artist, and their partners, assigns, successors, subcontractors, executors, officers, agents, employees, representatives, and administrators are hereby bound to the terms and conditions of this Agreement. 15.4 Severability - In the event a term, condition, or provision of this Agreement is determined to be invalid, illegal, void, unenforceable, or unlawful by a court of competent jurisdiction, then that term, condition, or provision, shall be deleted and the remainder of the Agreement shall remain in full force and effect as if such invalid, illegal, void, unenforceable or unlawful provision had never been contained herein. 15.5 Venue - This entire Agreement is performable in Tarrant County, Texas and the venue for any action related directly or indirectly, to this Agreement or in any manner connected therewith shall be Tarrant County, Texas, and this Agreement shall be construed under the laws of the State of Texas. 15.6 Execution/Consideration - This Agreement is executed by the parties hereto without coercion or duress for a substantial consideration, the receipt and sufficiency of which is forever confessed. 15.7 Authority - The individuals executing this Agreement on behalf of the respective parties below represent to each other that all appropriate and necessary action has been taken to authorize the individual who is executing this Agreement to do so for and on behalf of the party for which his or her signature appears, that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and binding agreement on the party for whom the individual is signing this Agreement and that each individual affixing his or her signature hereto is authorized to do so, and such authorization is valid and effective on the date thereof. 15.8 Waiver - Waiver by either party of any breach of this Agreement, or the failure of either party to enforce any of the provisions of this Agreement, at any time, shall not in any way affect, limit or waive such party's right thereafter to enforce and compel strict compliance. 15.9 Headings - The headings of the various sections of this Agreement are included solely for convenience of reference and are not to be full or accurate descriptions of the content thereof. 15.10 Multiple Counterparts -This Agreement maybe executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. A facsimile signature will also be deemed to constitute an original if properly executed. 15.11 Sovereign Immunity —The parties agree that the City has not waived its sovereign immunity or any other legal defense by entering into and performing its obligations under this Agreement. 15.12 Representations — Each signatory represents that this Agreement has been read by the party for which this Agreement is executed and that such party has had the opportunity to confer with its counsel. 15.13 Miscellaneous Drafting Provisions — This Agreement shall be deemed drafted equally by all parties hereto. The language of all 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 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 15.15 Relationship of Parties — The provisions of this Agreement shall not be construed to create a partnership or joint venture between the parties. Artist is performing Artists' services as an independent contractor and the doctrine of respondeat superior shall not apply between the City and the Artist. IN WITNESS WHEREOF, the parties have executed this Agreement and caused this Agreement to be effective on the latest day as reflected by the signatures below. Effective Date: CITY The City of Southlake, Texas Shana Yelverton Title: City Manager Approved as to Form: By: Taylor, Olson, Adkins, Sralla, and Elam L.L.P City Attorneys ARTIST Seth Vandable By: Seth Vandable Title: Artist 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 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 2011. NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS STATE OF COUNTY OF BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THIS STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED SETH VANDABLE KNOWN TO ME TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO THE FOREGOING INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE/SHE EXECUTED THE SAME FOR THE PURPOSE AND CONSIDERATION EXPRESSED, AND IN THE CAPACITY THEREIN STATED. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS DAY OF 2011. NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS EXHIBIT "A" SCOPE OF SERVICES AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND SETH VANDABLE (ARTIST) CREATION OF SCULPTURE FOR THE CITY OF SOUTHLAKE 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: L Design, fabricate, ship and install the sculptures: O. Provide the material for all of the sculptures. P. Seth Vandable will sculpt the above described sculptures in clay for approval. Q. Provide appropriate packing and ship the sculptures to the site. R. Install the sculptures on footings and/or pedestals built by the Contractor. S. Consult with City of Southlake in the design and creation of the site rooms that will stage the Artwork as necessary. T. Create the drawings and templates for the bas relief as well as any bronze or stainless steel elements of the bas relief. U. Supervise and assist a subcontractor in the creation of the has 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. 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. The Artist shall create and install the Artwork in substantial conformity with the approved Design. Any significant changes in the concept, as defined in Article 5.2, must be approved by the City. It is the responsibility of the Artist to coordinate with the City, and Contractor to ensure that the site is prepared to receive the Artwork. All Artwork installation and site preparation shall be performed during normal business hours. The City will be responsible for preparation of the site, including installation of the footings and pedestals, landscape and lighting. Upon completion of the permanent installation of the Artwork, the City project manager will inspect the work and give notice of acceptance, as provided in this Agreement. EXHIBIT "B" COMPLETION SCHEDULE/ARTWORK BILLING AND BUDGET AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND SETH VANDABLE (ARTIST) CREATION OF SCULPTURES FOR THE CITY OF SOUTHLAKE Task Timeline City Artist Conceptual drawings Month 1 (January Contract signed Provides final 2011) conceptual drawings. Begin work on clay Month 2 Check #1 in the Begins work on figures amount of $28,050 creating clay figures. due (33%) paid upon approval of drawings by City Project Manager. Month 3 On -site visit Continues work on clay figures. Month 4 Continues work on clay figures. Approve clay figures Months 5 - 9 On -site visit in Completes clay and send to foundry month 6 figures. for casting; approve bronze on Approves clay City reviews clay return from Foundry figures and final figures for approval bronze on return from foundry Begins foundry work, if approved by Check #2 in amount City. of $28,050 (33%) paid upon approval Supervises casting of clay figures. process at foundry. City approves final bronze. Final acceptance by Month 10 (October Approve work. Bronze figures project manager; 2011) delivered to City at submit maintenance Check #3 in amount Artist's Studio and worksheets; of $28,900 (33%) installed at Site by dedication. due upon City under Artist's installation. supervision. Is EXHIBIT "C" MAP OF INSTALLATION SITE a ` D p O f r t E CONTINENTAL BLYD 1, 4�� r "fl-S vilt1 MEW MC GGUERY LIN S •r: 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 Signature of Official/Title 2011. 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 12011. Notary Public in and for The State of My commission expires: EXHIBIT "E" INFORMATIONREGARDING VENDOR CONFLICT OFINTEREST QUESTIONNAIRE 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 purchases 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; enters into negotiations with the City for a contract; or 4. applies for a tax abatement and/or economic development incentive that will result in a contract with the City. THE FOLLOWING ARE CONSIDERED OFFICERS OF THE CITY: 1. Mayor and City Council Members; 2. City Manager; 3. Board and Commission members appointed by the Mayor or City Council members; 4. Directors of 4A and 4B development corporations; 5. the executive directors or managers of 4A and 4B development corporations; and 6. Directors of 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:1Southlake\liscellaneous\Chapter 176Attachment CIQ.092608.doc 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 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 form contains mandatory disclosures regarding "employment or business relationships" with a municipal officer. Officials may be asked to clarify or interpret various portions of the questionnaire. WHEN: The person or business must file: 1. 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 Finance Department is required by law to post the statements on 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. W:\SouthlakeMiscellaneous\Chapter 176.Attachment C1Q.092608.doc Page 2 of CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ 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 filer has affiliation or business relationship. Attach additional pages to this Form CIQ as necessary_ A. Is the local government officer named in this section receiving or likely to receive taxable income from the filer of the questionnaire? Yes E-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? Yes E-1 No C. Is the filer of this questionnaire affiliated with a corporation or other business entity thatthe local government officer serves as an officer or director, or holds an ownership of 10 percent or more? F7Yes F7No D_ Describe each affiliation or business relationship_ Describe any other affiliation or business relationship that might cause a conflict of interest. Signature of person doing business with the governmental entity Nate Amended 0 W 3Q000