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04-27-2009 (Public Arts Advisory) Agenda Packet Fire Station #3 Art Selection Panel and the Wylie Public Arts Advisory Board CITY`F WYLIE NOTICE OF MEETING Special Called Meeting Agenda Joint Meeting of the Fire Station #3 Art Selection Panel and the Public Arts Advisory Board April 27, 2009— 6:30 pm Wylie Municipal Complex Wylie City Council Chambers/Conference Room 2000 Highway 78 North Stewart Matthews Chair Polly Harrison Vice Chair Patsy Robertson Board Member Erin Dougherty Board Member Ashley Burt Board Member Kathy Spillyards Board Member Alvaro Salinas Board Member • Carole Ehrlich Board Liaison Carole Ehrlich Secretary In accordance with Section 551.042 of the Texas Government Code, this agenda has been posted at the Wylie Municipal Complex, distributed to the appropriate news media, and posted on the City website: a n w.wv 1 ictexa.s.gov within the required time ,frame. As a courtesy, the entire Agenda Packet has also been posted on the City of Wylie website: I' ',a riietc rcis. ��i_ The Chairman and Board request that all cell phones and pagers be turned off or set to vibrate. Members of the audience are requested to step outside the Council Chambers to respond to a page or to conduct a phone conversation. The Wylie Municipal Complex is wheelchair accessible. Sign interpretation or other special assistance fir disabled attendees must he requested 48 hours in advance by contacting the City Secretary's Office at 972.442.8100 or TD 972.44'.817 0. CALL TO ORDER .innounce the presence ola Quorum. WORK SESSION Joint Work Session of the Wylie Public Arts Board and the Fire Station #3 Selection Panel • Presentation of the Art Design by Montage 48/61 for Fire Station #3 \pill 2 . 2009 Wylie Public Arts Advisory Board Special Called Meeting Agenda Page 2 of BUSINESS ITEMS 1. Consider and act upon approval and recommendation to the Wylie City Council for the art design and contract between Montage 48/61 and the City of Wylie to commission the art piece for the Fire Station #3 Public Art Project. (C. Ehrlich, staff liaison) Executive Summary The Wylie City Council approved the selection of Montage 48/61 for the artists to complete a design for the Fire Station #3 Public Art Project. Larry Enge and Charlotte Lindsey met with Fire Chief Corbin and other members of the Fire Department to collaborate on the design of the mosaics to be created for this art space. Montage 48/61 has presented the final design model for this project for review and recommendation by the Fire Station #3 Art Selection Panel and PAAB. PAAB may recommend the final design and a contract for the commissioning of the art to the Wyllie City Council, who may finally approve and authorize the execution of the contract. 2. Consider and act upon approval of the minutes from the April 16, 2009 Public Arts Advisory Board Meeting. (C. Ehrlich, PAAB staff liaison) ADJOURNMENT CERTIFICATION 1 ccrtih•that this Notice of Meeting was posted on this ' v o ,il. 2009 at 5:00 p.m. as required by law in accordance with Section 551.042 of the Texas Government Co ' ,. .e• 'ate news media was contacted. As a courtesy, this agenda is also posted on the City of Wvlie websi • TP:G;Off Carole Ehrli(rh,City Secretary - "-es: -.7 Date Notice Removed • .41n►• Public Arts Advisory Board CITY OF WYLIE AGENDA REPORT Meeting Date: April 27, 2009 Item Number: 1 Department: Board Liaison (City Secretary's Use Only) Prepared By: Carole Ehrlich Account Code: Date Prepared: 4-24-09 Budgeted Amount: Exhibits: 2 Subject Consider and act upon approval and recommendation to the Wylie City Council for the art design and contract between Montage 48/61 and the City of Wylie to commission the art piece for the Fire Station #3 Public Art Project. (C. Ehrlich, staff liaison) Recommendation Motion to recommend at a cost of to the Wylie City Council for the art design and contract between Montage 48/61 and the City of Wylie to commission the art piece for the Fire Station #3 Public Art Project. Discussion The Wylie City Council approved the selection of Montage 48/61 for the artists to complete a design for the Fire Station #3 Public Art Project as recommended by the Public Arts Advisory Board and the Fire Station #3 Art Selection Panel. Larry Enge and Charlotte Lindsey met with Fire Chief Corbin and other members of the Fire Department to collaborate on the design of the mosaics to be created for this art space. In the course of collaboration, it was suggested the art be designed utilizing columns within the art space with a variety of mosaics depicting the first 100 years of the Wylie Volunteer/Full Time Fire Department; within the recommended $25,000 budget. The artists presented two columns that would be placed within the planter either centered or off-set at either side of the art site. There was some concern with regard to the balance of the art space in comparison to the number and size of the columns. After further collaboration, the artist were asked to create a wall to see if a wall placed in the center of the space would better enhance the art. Montage 48/61 re-designed the proposal to include a 4 ft by 14 ft wall with a 28" footer underneath and above the art planter, to give additional height for viewing. The artists submitted the re-designed wall and reported that after checking with their (base/wall) construction contractor it was found that the cylinder poured columns were less costly than constructing the wall and would require additional labor and materials at an additional cost of $2,900. They explained that they had exhausted all contingency funding they had set aside. The Fire Department has suggested, if approved by council, construction funding be used to cover the $2,900 overage. The wall has large "rest" areas between the actual mosaic designs. This was done to separate the individual mosaic scenes and to stay within the budget and size presented. The artists were asked to revise the design to enlarge the actual mosaic scenes and reduce the size of the rest lines; to include a cost to make this change. The artists redesigned the art work and submitted to the committee with the additional cost of$2,500. Part of the Fire Station #3 contingency Page 1 Page 2 of 2 budget could be used to accomplish this option. Option #1 — provides for the wall in lieu of the columns at a cost of$2,900. (which must have final approval by Council); Total contract cost of$27,900. Option #2 — provides for larger mosaic scenes and smaller rest areas within the same design and size at a cost of $2,500. (using contingency funding) Total contract cost for both options $30,400. This would leave a contingency fund of$2,900. Montage 48/61 has presented the final design model for this project for review and recommendation by the Fire Station #3 Art Selection Panel and PAAB. PAAB may recommend the final design and a contract for the commissioning of the art to the Wylie City Council, who may finally approve and authorize the execution of the contract. Approved By Initial Date CE 4-24-09 Department Liaison (ll 0 C CO CO I ! 3 - - . I L A"RIM K14FT1 Al I Mt 349.1232 4 inch cap 74- a) U C CO 4 inch top base -1 18 inch lower base PUBLIC ART PROJECT: FIRE STATION #3 Montage 48/61 Charlotte Lindsey and Larry Enge • 5626 Willis Avenue Dallas TX 75206 •214-794-3264 214-824-8023 Iarryenge@earthlink.net charalin@sbcglobal.net i , , PARKING LOT t i 5P 1 1 ..kilk4kINII\ t. 4 ,i- -4,41414,4:;%Alk:10, \ 3 % 0 0 d ws aY ¢ 1 € } oe r f 3 APPROOF COLUMNSATION 29.0936' ALLEN STREET Montage 48/61 Charlotte Lindsey and Larry Enge • 5626 Willis Avenue Dallas TX 75206 •214-794-3264 214-824-8023 larryenge@earthlink.net charalin@sbcglobal.net I 1 _ a C Z N 1 TWLT t ` .:7► L_1't�1'� , q- , , , , 7 . 35 o 1 I r' __,_. . __.. ....__ A•RRIl.l4Fr) Al IIM 349.1232 Wall I 14 ft I Image Wall Height 48 inches 4.00 Ft Cap thickness 4 inches l I Bottom Base thickness 28 inches c Total height 80 inches 6.67 ft ap ct c Length of Image Wall 168 inches 14.00 ft co Length of Cap: 172 inches 14.33 ft Length of Bottom Base 180 inches 15.00 ft 15 ft Base length PUBLIC ART PROJECT: FIRE STATION #3 Montage 48/61 Charlotte Lindsey and Larry Enge• 5626 Willis Avenue Dallas TX 75206 • 214-794-3264 214-824-8023 larryenge@earthlink.net charalin@sbcglobal.net AGREEMENT BETWEEN THE CITY OF WYLIE,TEXAS (CITY) AND LARRY ENGE AND CHARLOTTE LINDSEY "MONTAGE 48/61"(ARTISTS) FOR THE FABRICATION AND INSTALLATION OF THE PROPOSED FIRE STATION#3 PUBLIC ART PROJECT 210 NORTH W.A.ALLEN BLVD. WYLIE,TEXAS 75098 made as of the 12th day of May, in the Year 2009 BETWEEN the City: The City of Wylie,Texas 2000 State Highway 78 Wylie, Texas 75098 Telephone 972-442-8100 Facsimile and the Artist(s): Larry Enge and Charlotte Lindsey, "Montage 48/61" 5626 Willis Avenue Dallas,Texas 75206 Telephone: 214-824-8023 Facsimile: 484-970-8537 for the following Project: Fabrication and Installation of the proposed Fire Station#3 Public Art Project The City and the Artist agree as set forth below. THIS AGREEMENT is made and entered by and between the City of Wylie, Texas, a Home-Rule Municipal Corporation, hereinafter referred to as (the "City"), and Larry Enge and Charlotte Lindsey, "Montage 48/61", hereinafter referred to as(the"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 fabricate and install the proposed City of Wylie, Fire Station#3 Public Art Project,hereinafter referred to as the"Project"; 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 hereby,the parties hereto agree as follows: ARTICLE 1 ARTIST'S SERVICES 1.1 Employment of the Artist- The City hereby agrees to retain the Artist to perform the services set forth herein in connection with the Project. Artist agrees to perform such services in accordance with the terms and conditions of this Agreement. 1.2 Scope of Services - The parties agree that Artist shall perform such services as are set forth and described in Exhibit "A", which is attached hereto and incorporated herein by reference for all purposes. The parties understand and agree that deviations or modifications to the scope of services described in Exhibit "A", in the form of written change orders,may be authorized from time to time by the City. 1.3 Schedule of Work - The Artist agrees to commence work immediately upon execution of this Agreement and receipt of first payment, and to proceed diligently with said work to completion as described in the Completion Schedule/Project Billing/Project Budget attached hereto as Exhibit "B" and incorporated herein by reference for all purposes, but in no event shall the Project be completed any later than twelve (12) months following written notice from City that it has acquired the necessary, as solely determined by the City, easement at the location where the Artwork made the subject of this Agreement will be erected. In this connection, the parties hereto agree that within ten (10) days of securing said easement, Exhibit `B" of this Agreement shall be amended in writing to reflect the agreed upon Project Completion Schedule timeline. ARTICLE 2 THE CITY'S RESPONSIBILITIES 2.1 Project Data - The City shall furnish required information, that it currently has in its possession, as expeditiously as necessary for the orderly progress of the work, and the Artist shall be entitled to rely upon the accuracy and completeness thereof 2.2 City Project Manager- The City shall designate, when necessary, a representative authorized to act on the City's behalf with respect to the Project (the "Project Manager"). The City or such authorized representative shall examine the documents submitted by the Artist and shall render any required decisions pertaining thereto as soon as practical so as to avoid unreasonable delay in the progress of the Artist's services. ARTICLE 3 ARTIST'S COMPENSATION 3.1 Compensation for Artist's Services-As described in"Article 1, Artist's Services", compensation for this Project shall be Dollars ($ ) ("Artist's Fee") and will cover all services to be rendered and materials to be provided in accordance with this Agreement. The Artist's Fee shall be paid in accordance with Article 3 and the Completion Schedule/Project Billing/Project Budget as set forth in Exhibit `B", attached hereto. The final fifteen (15) percent of the Artist's Fee, or Dollars ($ ) shall not be paid until the Artist has completed, delivered and installed, where applicable, all of the Artwork services and tasks described in Exhibits "A" and `B", attached hereto. 3.2 Invoices — No payment to the Artist shall be made until Artist tenders an invoice to the City. Payments are payable to the Artist within thirty (30) days from the date of invoice as long as the invoice is mailed to City within three (3) days of the date of the invoice. Invoices are to be mailed to City immediately upon completion of each individual task listed in Exhibit "A". If any invoice remains outstanding and unpaid for more than sixty (60) days from the date of invoice, and Artist has fully performed its obligations as set forth herein, the Artist has the option upon written notice to the City, to suspend all work specified under this Agreement until the account is brought current. Continued performance and/or completion of work by the Artist under this Agreement shall resume upon the payment of the earned fees by the City. Agreement for Fire Station#3 Public Commission-Montage 48/61 513257.vl 3.3 Failure to Pay- Failure of the City to pay an invoice, for a reason other than cause, to the Artist within sixty(60) days from the date of the invoice shall grant the Artist the right, in addition to any and all other rights provided, to, upon written notice to the City, refuse to render further services to the City and such act or acts shall not be deemed a breach of this Agreement. The City shall not be required to pay any invoice submitted by the Artist if the Artist breached any provision(s)herein. 3.4 Adjusted Compensation - If the Scope of the Project or if the Artist's Services are materially changed, the amounts of the Artist's compensation shall be equitably adjusted as approved by City. Any additional amounts paid to the Artist as a result of any material change to the Scope of the Project shall be agreed upon in writing by both parties before the services are performed. 3.5 Project Suspension - If the Project is suspended or abandoned 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, Artist shall deliver to City all finished or unfinished documents, data, studies, surveys, drawings, maps, models, reports, photographs and/or any other items prepared by Artist in connection with this Agreement prior to Artist receiving final payment. If the Project is resumed after being suspended for more than three (3) months, the Artist's compensation shall be equitably adjusted as approved by the City. Any additional amounts paid to the Artist after the Project is resumed shall be agreed upon in writing by both parties before the services are performed. ARTICLE 4 OWNERSHIP AND COPYRIGHT 4.1 Ownership of Work- The Project is the property of the City, and the Artist shall not make any duplicate work of the same or substantially similar size, nor shall the Artist grant permission to others to do so except with the written permission of the City. The City shall be entitled to copies of the plans and the maquette, which are prepared by the Artist in connection with the development and fabrication of the Project under this Agreement. The ownership of the mosaic art for Wyllie's Fire Station #3 transferred to the City upon full payment of Artwork described in Exhibits "A" and "B" attached hereto. 4.2 Ownership of Copyright - Artist shall retain the copyright to the Artwork. Artist shall take all steps, at his own expense,to protect the copyright of the Artwork. 4.3 License to City - The Artist irrevocably licenses the City, its employees, representatives, officers and agents, the right to make photographs, two dimensional reproductions, and adaptations of the work for educational, public relations, arts promotional and other non-commercial purposes. For the purposes of this Agreement, the following, among others, are deemed to be reproductions and/or adaptations for non-commercial purposes: reproduction in exhibition catalogues, websites, books, slides, photographs, postcards, posters, and calendars; in magazines, books, art and news sections of newspapers; in general books and magazines not primarily devoted to art but of an educational,historical or critical nature; slides, videos and film strips not intended for a mass audience, and television from stations operated for educational purposes or on programs for educational and news purposes from all stations. 4.4 Copyright Notice—The City undertakes to use its reasonable efforts to include in any reproductions which it makes of the Artwork a copyright notice in the following form: Copyright Montage 48/61 or©Montage 48/61 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. Agreement for Fire Station#3 Public Commission-Montage 48/61 513257.vl ARTICLE 5 FABRICATION 5.1 Specifications —Artist will fabricate the Artwork, or cause it to be fabricated, in substantial conformity with the Design approved by City as set forth in Exhibit"A". 5.2 Changes — Any significant changes to the Artwork by either Artist or as requested by City will be approved in writing by the other party. For purposes of this Agreement, a"significant change"will mean any change, including but not limited to, a change in the scope, design, color, size, or material of the Artwork, which affects cost, installation, site preparation, maintenance and concept as represented in the Design described in Exhibit "A". If Artist wishes to make a significant change to the Artwork, he/she must request written approval from the City of the change in writing at the address provided in Section 14. City will provide a written response within thirty(30)calendar days. 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 pursuant to Section 15 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 prior to delivery and to give written approval or disapproval of the Artwork for 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 — Due to the nature of the streetscape project and installation of the Artwork, cooperation from the City's designated Landscape Architect 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 prepared by a professional structural engineer. The drawings will illustrate the Artwork's support system, including without limitation, connection to the base. The Landscape Architect 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 Agreement into conformance with the drawings. 5.6 Warranty of Craftsmanship —The Artist warrants that the Artwork will be free of defects in workmanship and materials. In the event that any defects become apparent in the workmanship or materials within five (5) years of the execution of this Agreement,Artist will remedy any defects at Artist's sole cost and expense. ARTICLE 6 STORAGE 6.1 Storage Costs - Artist will make all efforts to coordinate installation such that the Artwork will not need to be stored prior to installation. If the Artwork is to be installed within fourteen (14) days of its delivery date to the designated site, and is to be stored temporarily at a location at the site, the Artist is responsible for ensuring the safety of the Artwork until the permanent installation is completed. The Artist will be responsible for any and all costs associated with storing the Artwork, including but not limited to, the cost of transporting the Artwork to and from the storage facility, from the date mutually agreed upon in writing by the Artist and City for delivery to the site until the Artwork is permanently installed. If, for reasons outside of the control of the Artist,the Artwork will not be able to be permanently installed within fourteen (14) days of its arrival date on site, as mutually agreed upon in writing by the Artist and City, and it is necessary to store the Artwork for more than fourteen (14) days prior to the permanent installation, the City must notify the Artist prior to delivery of the Artwork to the site. Storage of the Artwork will be at a location mutually agreed upon in writing by the Agreement for Fire Station#3 Public Commission-Montage 48/61 513257.vl Artist and City. Any and all costs associated with storing the Artwork, including but not limited to,the cost of transporting the Artwork from the storage facility, shall be apportioned between City and Artist as follows: • first day (as mutually agreed upon in writing by Artist and City for delivery to the site) of storage through day 14—Artist • day 15 until the date the Artwork is permanently installed--City 6.2 Storage Requirements - If the City is providing on-site storage, the City will provide a locked storage facility to adequately, as solely determine by the City, contain the Artwork and the materials and supplies reasonably required by Artist for the permanent installation of the Artwork. ARTICLE 7 FINAL APPROVAL OF ARTWORK Within ten (10)business days of the permanent installation of the Artwork, the City will inspect the Artwork to determine whether it conforms to all of the requirements of this Agreement. If the City desires any modifications to the Artwork or finds that any aspect of the Artwork is not in conformance with this Agreement, the City will notify Artist in writing within seven (7) business days of the inspection. Artist will have an opportunity to address and cure any defects, requests or concerns of the City within fifteen (15) days of the date of the City's notice provided pursuant to Article 7. ARTICLE 8 INTEGRITY OF THE WORK 8.1 Repairs and Maintenance - The City undertakes to exercise reasonable care to protect, repair, and maintain the work. Artist agrees to cooperate with and advise the City 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 he or she 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 his or her authorized representative unless an emergency requires the City to do so. 8.2 Relocation of the Work— To the extent that the Artwork is capable of being relocated, the City shall have the right to do so. If feasible,the City shall attempt to consult with the Artist concerning the relocation of the Artwork prior to any such relocation; however, the Artist's approval is not required for the relocation, if any. If the Artist is not pleased with such relocation, 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,relinquishment and abandonment of the copyrights described herein. 8.3 Credit—The City agrees, at its own expense,to prepare and install at or near the Project a public notice, the form and exact location of which shall be solely determined by City, giving Artist credit for the creation of the Artwork. ARTICLE 9 INSURANCE COVERAGE Artist shall provide and maintain the types and amounts of insurance set forth herein for and during all aspects and phases of this Project. Artist shall be required to provide and maintain general liability insurance with a minimum of One Million and No/100 Dollars ($1,000,000.00) per occurrence and Two Million and No/100 Dollars ($2,000,000.00) aggregate. In addition, Artist shall provide and maintain insurance for loss (including theft, fire and damage) and employee health and disability insurance, as well as any statutorily required workers' compensation insurance. All insurance and certificate(s) of insurance shall contain the following provisions: Agreement for Fire Station#3 Public Commission-Montage 48/61 513257.v1 1. Name the City, its officers,agents, representatives, and employees as additional insureds as to all applicable coverage with the exception of workers' compensation insurance. 2. Provide for at least thirty(30)days prior written notice to the City for cancellation,non-renewal, or material change of the insurance. 3. Provide for a waiver of subrogation against the City for injuries, including death, property damage, or any other loss to the extent the same is covered by the proceeds of insurance. Insurance company qualification: All insurance companies providing the required insurance shall be authorized to transact business in Texas and rated at least"A"by AM Best or other equivalent rating service. Certificate of insurance: A certificate of insurance evidencing the required insurance shall be submitted no later than the date of the execution of this Agreement. If this Agreement is renewed or extended by the City, a certificate of insurance shall also be provided to the City prior to the date the Agreement is renewed or extended. ARTICLE 10 AUDITS AND RECORDS/PROHIBITED INTEREST/VENDOR DISCLOSURE The Artist agrees that at any time during normal business hours and as often as City may deem necessary, Artist shall make available to representatives of the City for examination all of its 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 it is aware of the prohibited interest requirement of the City Charter, which is repeated on the Affidavit, and will abide by the same. Further, a lawful representative of Artist shall execute the Affidavit attached hereto as Exhibit"C" and incorporated herein by reference for all purposes. Artist understands and agrees that the existence of a prohibited interest during the term of this Agreement will render the Agreement void able. The Artist agrees that it is further aware of the vendor disclosure requirements set forth in Chapter 176, Local Government Code, as amended, and will abide by the same. In this connection, a lawful representative of the Artist shall execute the Conflict of Interest Questionnaire, Form CIQ, attached hereto as Exhibit"D"and incorporated herein for all purposes. ARTICLE 11 TERMINATION OF AGREEMENT/REMEDIES 11.1 Artist Default — Failure or refusal of the Artist to perform any act herein required, unless mutually agreed to in writing by the City and the Artist shall constitute a default. In the event of a default, in addition to any other remedy available to the City,this Agreement may be terminated by the City upon ten(10)day written notice. Such notice does not waive any other legal remedies available to the City. 11.2 Conditions for Termination of Agreement Other than Artist's Default — If the City deems, in its sole discretion, the Project design is inappropriate or unworkable for the site, or if the deadlines specified herein are not met due, in whole or in part, to the Artist's actions and/or omissions, or if cost estimates indicate that the Project cannot be completed within the Project budget, the City retains the right to terminate this Agreement and is released from the obligation to enter into fabrication and installation of the Artist's design concept for the Project. In the event of any termination,Artist shall deliver to City all work, entirely or partially completed. Agreement for Fire Station#3 Public Commission-Montage 48/61 513257.vl The Artist shall receive as compensation, full payment for services satisfactorily, as solely determined by the City, performed as outlined in Exhibit"B", as applicable,to the date of the termination notice received. The City shall make this final payment within thirty(30)days of notifying the Artist. 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. ARTICLE 13 INDEMNITY ARTIST SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS CITY AND ITS CITY COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES AND EMPLOYEES FROM AND AGAINST ALL DAMAGES, INJURIES (INCLUDING DEATH), CLAIMS, PROPERTY DAMAGES (INCLUDING LOSS OF USE), CLAIMS FOR PATENT, TRADEMARK AND/OR COPYRIGHT INFRINGEMENT AND/OR ANY OTHER INTELLECTUAL PROPERTY AND/OR PROPRIETARY CLAIM, LOSSES, DEMANDS, SUITS, JUDGMENTS AND COSTS, INCLUDING REASONABLE ATTORNEY'S FEES AND EXPENSES (INCLUDING ATTORNEYS' FEES AND EXPENSES INCURRED IN ENFORCING THIS INDEMNITY), CAUSED BY THE NEGLIGENT, GROSSLY NEGLIGENT, AND/OR INTENTIONAL ACT AND/OR OMISSION OF ARTIST,ITS OFFICERS,AGENTS,REPRESENTATIVES,EMPLOYEES,SUBCONTRACTORS,LICENSEES, INVITEES OR ANY OTHER THIRD PARTIES FROM WHOM ARTIST IS LEGALLY RESPONSIBLE, IN ITS/THEIR PERFORMANCE OF THIS AGREEMENT AND/OR ARISING OUT OF GOODS AND/OR SERVICES PROVIDED BY ARTIST PURSUANT TO THIS AGREEMENT, REGARDLESS OF THE JOINT OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF THE CITY (HEREINAFTER"CLAIMS"). THIS INDEMNIFICATION PROVISION AND THE USE OF THE TERM"CLAIMS" IS ALSO SPECIFICALLY INTENDED TO APPLY TO,BUT NOT LIMITED TO,ANY AND ALL CLAIMS, WHETHER CIVIL OR CRIMINAL, BROUGHT AGAINST CITY BY ANY GOVERNMENT AUTHORITY OR AGENCY RELATED TO ANY PERSON PROVIDING SERVICES UNDER THIS AGREEMENT THAT ARE BASED ON ANY FEDERAL IMMIGRATION LAW AND ANY AND ALL CLAIMS, DEMANDS, DAMAGES, ACTIONS AND CAUSES OF ACTION OF EVERY KIND AND NATURE,KNOWN AND UNKNOWN,EXISTING OR CLAIMED TO EXIST,RELATING TO OR ARISING OUT OF ANY EMPLOYMENT RELATIONSHIP BETWEEN ARTIST AND HIS EMPLOYEES OR SUBCONTRACTORS AS A RESULT OF THAT SUBCONTRACTOR'S OR EMPLOYEE'S EMPLOYMENT AND/OR SEPARATION FROM EMPLOYMENT WITH ARTIST, INCLUDING BUT NOT LIMITED TO, ANY DISCRIMINATION CLAIM BASED ON SEX, SEXUAL ORIENTATION OR PREFERENCE, RACE, RELIGION, COLOR, NATIONAL ORIGIN, AGE OR DISABILITY UNDER FEDERAL, STATE OR LOCAL LAW, RULE OR REGULATION, AND/OR ANY CLAIM FOR WRONGFUL TERMINATION, BACK PAY, FUTURE WAGE LOSS, OVERTIME PAY, EMPLOYEE BENEFITS, INJURY SUBJECT TO RELIEF UNDER THE WORKERS' COMPENSATION ACT OR WOULD BE SUBJECT TO RELIEF UNDER ANY POLICY FOR WORKERS COMPENSATION INSURANCE, AND ANY OTHER CLAIM, WHETHER IN TORT, CONTRACT OR OTHERWISE. ARTIST IS EXPRESSLY REQUIRED TO DEFEND CITY AGAINST ALL SUCH CLAIMS. IN ITS SOLE DISCRETION, CITY SHALL HAVE THE RIGHT TO APPROVE OR SELECT DEFENSE COUNSEL TO BE RETAINED BY ARTIST AT A REASONABLE AND CUSTOMARY COST, IN FULFILLING ITS OBLIGATION HEREUNDER TO DEFEND AND INDEMNIFY CITY, UNLESS SUCH RIGHT IS EXPRESSLY WAIVED BY CITY IN WRITING. CITY RESERVES THE RIGHT TO PROVIDE A PORTION OR ALL OF ITS OWN DEFENSE; HOWEVER, CITY IS UNDER NO OBLIGATION TO DO SO. ANY SUCH ACTION BY CITY IS NOT TO BE CONSTRUED AS A WAIVER OF ARTIST'S Agreement for Fire Station#3 Public Commission-Montage 48/61 513257.vl OBLIGATION TO DEFEND CITY OR AS A WAIVER OF ARTIST'S OBLIGATION TO INDEMNIFY CITY PURSUANT TO THIS AGREEMENT. ARTIST SHALL RETAIN CITY APPROVED DEFENSE COUNSEL WITHIN SEVEN (7) BUSINESS DAYS OF CITY'S WRITTEN NOTICE THAT CITY IS INVOKING ITS RIGHT TO INDEMNIFICATION UNDER THIS AGREEMENT. IF ARTIST FAILS TO RETAIN COUNSEL WITHIN SUCH TIME PERIOD, CITY SHALL HAVE THE RIGHT TO RETAIN DEFENSE COUNSEL ON ITS OWN BEHALF, AND ARTIST SHALL BE LIABLE FOR ALL COSTS INCURRED BY CITY. 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: Mindy Manson City Manager Carole Ehrlich Arts Contract Manager City of Wylie 2000 State Highway 78 Wylie,Texas 75098 City agrees that all notices or communication to Artist permitted or required under this Agreement shall be delivered to Artist at the following address: Larry Enge and Charlotte Lindsey, "Montage 48/61" 5626 Willis Avenue Dallas,Texas 75206 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 notice of such change to the other party in accordance with the provisions of this Agreement. ARTICLE 15 MISCELLANEOUS 15.1 Complete Agreement - This Agreement, including the exhibits hereto labeled "A" through "D", all of which are incorporated herein for all purposes, constitute the entire agreement by and between the parties regarding the subject matter hereof and supersedes all prior and/or contemporaneous written and/or oral understandings. This Agreement may not be amended, supplemented, and/or modified except by written agreement duly executed by both parties. To the extent that any provision of this Agreement should conflict with the provisions of an exhibit, the provisions of this Agreement shall prevail. 15.2 Assignment and Subletting - The Artist agrees that neither this Agreement nor the work to be performed hereunder will be assigned or sublet without the prior written consent of the City. The Artist further agrees that the assignment or subletting of any portion or feature of the work or materials required in the performance of this Agreement shall not relieve the Artist of its full obligations to the City as provided by this Agreement. All such approved work performed by assignment or subletting shall be billed through Artist, and there shall be no third party billing. Agreement for Fire Station#3 Public Commission-Montage 48/61 513257.vl 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 Collin County, Texas and the venue for any action related directly or indirectly, to this Agreement or in any manner connected therewith shall be Collin 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 any substantial consideration,the sufficiency of which is forever confessed. 15.7 Authority - The individuals executing this Agreement on behalf of the respective parties below represent to each other that all appropriate and necessary action has been taken to authorize the individual who is executing this Agreement to do so for and on behalf of the party for which his or her signature appears, that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and binding agreement on the party for whom the individual is signing this Agreement and that each individual affixing his or her signature hereto is authorized to do so, and such authorization is valid and effective on the date thereof. 15.8 Waiver - Waiver by either party of any breach of this Agreement, or the failure of either party to enforce any of the provisions of this Agreement, at any time, shall not in any way affect, limit or waive such party's right thereafter to enforce and compel strict compliance. 15.9 Headings - The headings of the various sections of this Agreement are included solely for convenience of reference and are not to be full or accurate descriptions of the content thereof. 15.10 Multiple Counterparts - This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. A facsimile signature will also be deemed to constitute an original if properly executed. 15.11 Sovereign Immunity—The parties agree that the City has not waived its sovereign immunity by entering into and performing its obligations under this Agreement. 15.12 Representations—Each signatory represents 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 Death of Artist — In the event the Artist dies or becomes incapacitated during the term of this Agreement, the fabrication, delivery, and installation of the Artwork shall be completed pursuant to the Artist's design, conception, and plans by [Backup Artist Name, Address, City, Street Zip, and Phone Number]. Agreement for Fire Station#3 Public Commission-Montage 48/61 513257.vl 15.15 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. 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 Wylie,Texas Larry Enge and Charlotte Lindsey,"Montage 48/61" By: Print Name: Larry Enge Title: Artist By: By: Mindy Manson, City Manager Print Name: Charlotte Lindsey Title: Artist Approved as to Form: By: Abernathy,Roeder,Boyd&Joplin, P.C. City Attorneys Agreement for Fire Station#3 Public Commission-Montage 48/61 513257.vl STATE OF TEXAS § COUNTY OF COLLIN § BEFORE ME, the undersigned authority, a Notary Public in and for this State of Texas, on this day personally appeared MINDY MANSON, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that she executed the same for the purpose and consideration expressed, and in the capacity therein stated. Given under my hand and seal of office this day of , 2008. 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 , on this day personally appeared , Artist, 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 , 2008. Notary Public in and For the State of Agreement for Fire Station#3 Public Commission-Montage 48/61 513257.vl EXHIBIT "A" SCOPE OF SERVICES AGREEMENT BETWEEN THE CITY OF WYLIE,TEXAS (CITY) AND LARRY ENGE AND CHARLOTTE LINDSEY,"MONTAGE 48/61"(ARTIST) FOR THE FABRICATION AND INSTALLATION OF THE PROPOSED FIRE STATION#3 PUBLIC ART PROJECT 210 NOTH W.A.ALLEN BLVD. WYLIE,TEXAS 75098 Project Description Wylie Fire Station#3 Public Art Project To fabricate and install the proposed Fire Station #3 Public Art, artist Larry Enge and Charlotte Lindsey, Montage 48/61 will perform the following tasks: A) Following a site visit, submit final schematic drawings of the proposal, based upon submitted maquette to City staff and the Public Arts Advisory Board for their review and approval within sixty (60) days of the receipt of this agreement. These drawings will include: • Detailed information of every physical feature of the construction of the Artwork and its integration with the site with any proposed changes to the previously submitted concept highlighted. (Final Design). ■ A description of any issues involved in the construction, integration and maintenance of the Artwork, as well as any third party subcontractors needed to work on the project. • A final project budget breakdown not to exceed $ ■ An installation timeline. B) Following formal approval of the Public Arts Advisory Board, the Artist shall submit drawings stamped by an engineer, licensed by the State of Texas and paid for by the Artist, for certification that the Artwork, foundation, and its connection will be structurally sound. C) The Artist shall fabricate 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, the Project Landscape Architect, and Contractor to ensure that the site is prepared to receive the Artwork. The Artist will be responsible for preparation of the site, including installation of the foundation. The City will be responsible for any fill soil within the space, irrigation to the site and lighting. D) Upon completion of the permanent installation and clean-up of the site, the City Project Manager will inspect the work and give notice of acceptance, as provided in this Agreement. The Artist will complete the City's maintenance worksheet and submit it to the City within ten(10)days of City's final acceptance of the Artwork. Agreement for Fire Station#3 Public Commission-Montage 48/61 513257.vl MAINTENANCE PROCEDURES Materials and Care Information Sheet(to be filled out by the artist and submitted upon completion of the project prior to final payment.) Artist: Date: Title of Work: Media: Specific materials used(Brand name and type of all materials, i.e.type of paper and fiber content,mental alloy, chemical composition of patina, etc.) Specific techniques used in the fabrication of the Artwork. (Airbrush painting, lost wax casting, TIG welding, etc.): Fabricator name and address(if other than artist): Installation materials and techniques(Attach as-built drawings as appropriate): Recommended Maintenance procedures. (Be as specific as possible about techniques and materials): Cautions regarding maintenance,handling, etc: Agreement for Fire Station#3 Public Commission-Montage 48/61 513257.vl EXHIBIT `B" COMPLETION SCHEDULE/PROJECT BILLING/PROJECT BUDGET AGREEMENT BETWEEN THE CITY OF WYLIE,TEXAS(CITY) AND LARRY ENGE AND CHARLOTTE LINDSEY,"MONTAGE 48/61" (ARTIST) FOR THE FABRICATION AND INSTALLATION OF THE PROPOSED FIRE STATION#3 PUBLIC ART PROJECT ARTIST COMPENSATION: $25,000.00 TASK DESCRIPTION PAYMENT TIMELINE 1 Execution of Agreement and Notice to Proceed $12,500.00 Insurance documentation sent to City Within 60 days 2 Submit of Execution Execution Execution of of Final schematic drawings Agreement Agreement Stamped engineered drawings Budget breakdown Fabrication and Installation Timeline All Items in Exhibit A Part(A) and (B) For approval to City Staff and Public Art Board. Calculating and Ordering Tile I I 3 Fabrication of Mosaic begins $5,000.00 Upon delivery of Tile (Approx. 60/75 (Approximately 8 month process) days days after Execution Execution of of Agreement) Agreement) 4 Halfway point of Fabrication $3,750.00 4 months after Fabrication begins begins 5 Coordinate with City on Site Prep Oversee Concrete construction 5 Installation 8 months 6 Final Acceptance by Project Manager, submit maintenance $3,750.00 9 months worksheets (Exhibit A Part(D)) TOTAL $25,000.00 Agreement for Fire Station#3 Public Commission-Montage 48/61 513257.v1 EXHIBIT"C" AFFIDAVIT THE STATE OF § COUNTY OF § I, Montage 48/61, Larry Enge and Charlotte Lindsey, Artists, 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 Wylie,Texas, I affirm that no relative of mine, in the first degree by consanguinity or affinity as defined in Chapter 573 of the Texas Government Code, is a member of the public body which took action on the agreement. SIGNED this_day of ,20 Larry Enge,/Artist Charlotte Lindsey, Artist BEFORE ME, the undersigned authority, this day personally appeared and on oath stated that the facts hereinabove stated are true to the best of his/her knowledge or belief. Sworn to and subscribed before me on this day of , 20 . Notary Public in and for The State of My commission expires: EXHIBIT "D" CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor or other person doing business with local governmental entity Page 2 J Name of local government officer with whom filer has of ilitation or business relationship. (Complete this section only if the answer to A,B,or C is 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 CIO 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 [] 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 n No C. Is the filer of this questionnaire affiliated with a corporation or other business entity that the local government officer serves as an officer or director,or holds an ownership of 10 percent or more? Yes n No D. Describe each affiliation or business relationship. J Describe any other affiliation or business relationship that might cause a conflict of interest. u Signature of person doing business with the governmental entity Date Amendea D'11312000 Agreement for Fire Station#3 Public Commission-Montage 48/61 513257.v1 Public Arts Advisory Board CITY OF WYLIE Minutes Regular Board Meeting April 16, 2009 - 6:30 p.m. Wylie Municipal Complex Council Conference Room 2000 Highway 78 North CALL TO ORDER Announce the presence of a Quorum. The meeting was called to order at 6:35 p.m. by Chairman Stewart Matthews. Those in attendance were: Patsy Robertson, Polly Harrison, Kathy Spillyards, Alvaro Salinas, Erin Dougherty and Ashley Burt. Staff present was Carole Ehrlich, Board Liaison/Secretary, Mindy Manson, City Manager, and Craig Kelly, Public Information Officer. DISCUSSION ITEMS ❑ Update and discussion regarding the 2009 Annual Wylie Arts Festival cost estimates and presentation to the Wylie City Council for final approval to hold the event. (City Manager, Mindy Manson and PIO, Craig Kelly) Board/Staff Comments City Manger Manson addressed the board stating that staff was currently working on the 2009-2010 Budget. She explained that this year and next staff was looking for ways to reduce the budget and still provide services the city has enjoyed. She explained that PIO Kelly had put together an estimate of costs based on other events of this type that he had assisted with. She explained that this would be part of the budget items presented to the Wylie City Council during the budget work sessions. She noted that the proposal for the Wylie Arts Festival should be presented to Council prior to the budget work session so the Council had a clear idea of what the event would be. Public Information Officer Kelly presented the categories of the event that would require expenditures. They included: advertising, printing of materials for marketing, vendor applications and other event materials, electricity, stage, sound, porta potties, postage, staff overtime, and other miscellaneous costs. He explained that in addition, there could be tents and other items requiring some costs as well. He reported that the sponsorship committee had met and discussed sponsorships that could off-set part of the expenses. He told the members that this committee would work very hard to commit sponsors for the event. He reported that in addition to sponsorships, revenue would be derived from vendor booth rentals. He warned that these were estimates only. PAAB Chair Matthews thanked PIO Kelly for his time in creating the estimates. ❑ Update and discussion regarding the branding/logo for the 2009 Annual Wylie Arts Festival and Update. (Members Erin Dougherty and Ashley Burt) April 16,2009 Public Arts Advisory Board Minutes 2 Board/Staff Comments Logo/Branding Committee Chair Erin Dougherty presented five options for the Wylie Arts Festival logo. She explained that Public Information Officer Kelly had created the logos and was present to address some of the features of each logo. PIO Kelly addressed the board and explained that the logos presented were in different holiday colors and "A"s that could be interchanged at the pleasure of the board. He explained that the wording under Wylie Arts Festive that denoted the activities (food, crafts, art, tree lighting) would help people understand what the event was all about. He noted that it is small in size but was needed to explain the new event. Board members thanked PIO Kelly for his time in creating the logo options. o Wylie Arts Festival Committee Reports. (Committee Chairs) Board/Staff Comments Committee chairs for the Wylie Arts Festival gave a brief update on the work completed for those functions. Staff liaison Ehrlich handed each committee head a brief outline of committee timelines and a calendar to mark for planning purposes. o Update and discussion regarding a donation of art to the City of Wylie. (C. Ehrlich, Staff Liaison) Staff Comments PAAB staff liaison Ehrlich gave a short update on the donation of art by sculptor, Herk van Tongeren. She reported that the contract to accept the art is being reviewed and subsequent transportation plans were also under discussion. She reported that when all issues were finalized, the item would come back to PAAB and Wylie City Council. BUSINESS ITEMS 1. Consider and act upon approval of the minutes from the February 19, 2009 Public Arts Advisory Board Meeting. (C. Ehrlich, PAAB staff liaison) Board Action A motion was made by board member Spillyards, seconded by board member Salinas to approve the February 19, 2009 PAAB minutes as presented. A vote was taken and the motion passed 7-0. 2. Consider and act upon final approval of the logo for the Wylie Arts Festival. (E. Dougherty, Logo/Branding Chair) Staff/Board Comments PAAB Chair Matthews explained that the Logo/Branding Committee has presented the final logo options for the new festival to accompany the application and other marketing materials. He reported that the committee is asking PAAB members for final approval of their choice for the logo. PAAB members discussed the options for wording, color and design. April 16,2009 Public Arts Advisory Board Minutes 3 Board Action A motion was made by board member Dougherty, seconded by board member Salinas to approve the logo as follows: Wylie in Gold, Arts in light green with the easel feature, Festival in red and art, crafts, music, food, tree lighting in red with bullets separating each word. The star should be in the same gold as the Wylie wording. A vote was taken and the motion passed 7-0. (See approved logo, attached to the minutes) ADJOURNMENT Board Action A motion was made by board chair Matthews, seconded by board member Spillyards to adjourn the meeting at 8:42 p.m. A vote was taken and the motion passed 6-0 with Ashley Burt absent. Steward Matthews, Chair Carole Ehrlich, Secretary v \ (-.) FESTIVAL ART • CRAFTS • MUSIC • FOOD • TREE LIGHTING