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03-27-2008 (Public Arts Advisory) Agenda Packet Public Arts Advisory Board CITY OF WYLIE NOTICE OF MEETING Regular Meeting Agenda March 27, 2008 — 6:30 pm Wylie Municipal Complex Council Chambers/Council Conference Room 2000 Highway 78 North Steward Matthews Chair Polly Harrison Vice Chair Patsy Robertson Board Member Kathryn Welp Board Member Ashley Burt Board Member Kathy Spillyards Board Member Warner Washington 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: vvvvw.vvylietexas.gov within the required time frame. As a courtesy, the entire Agenda Packet has also been posted on the City of Wylie website: vvvvw.vvylietexas.gov. 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 for disabled attendees must be requested 48 hours in advance by contacting the City Secretary's Office at 972.442.8100 or TD 972.442.8170. CALL TO ORDER Announce the presence of a Quorum. BUSINESS ITEMS 1. Consider and act upon approval of the minutes from the February 21, 2008 Public Arts Advisory Board Meeting. WORK SESSION Li Discussion regarding the consulting recommendations and direction from the Public Arts Advisory Board regarding the creation of the Wylie Public Art Guidelines and Procedures. (Architectural Arts consultant, Sharon Leeber) March 27,2008 Wylie Public Arts Advisory Board Regular Meeting Agenda Page 2 of 2 ADJOURNMENT CERTIFICATION I cert0) that this Notice of Meeting was posted on this 20th day of March, 2008 at 5:00 p.m. as required by law in accordance with Section 551.042 of the Texas Government Code and that the appropriate news media was contacted. As a courtesy, this agenda is also posted on the City of Wylie website: wvvw.vvylietexas.gov. Carole Ehrlich,City Secretary Date Notice Removed 1 Contents Executive Summary 3 Developing the Public Art Program 5 Forms of Visual Art 6 Appropriate Work 6 Inappropriate Work 6 Building on Community Strengths 7 Accountability and Responsiveness to the Community 7 Roles and Responsibilities 7 Artists Registry 9 Sources and Uses of Funds 9 Annual Public Art Work Plan 9 Process and Procedures io Artist selection Panels io Selection Process io Project Implementation Contracts Request for Artist Qualifications Agreement for Artist Consulting Services Agreement for Commissioned Artwork Artwork Transfer of Title Program Administration 48 Collection Management 48 Maintenance&Conservation 48 Banking 48 Insurance 48 Next Steps 48 Community Programs,Participation&Reaching Out Partnering to Enliven the Arts 49 A place to Gather 49 Policy for Local vs. non-local artists 50 Other Facilitated by the City Council of the City of Wylie, Texas of 2007 and 2008, Carole Ehrlich, TRMC, CMC, City Secretary, City of Wylie, the Public Art Advisory Board of 2007-2008, and Sharon Corgan Leeber 2 CtIc 0 The Mission as contained in City Ordinance 2006-37:ref. Section 2, article j. determined that Wylie was eager to have a program that provides art for public spaces within the city. The city council moved forward to establish this in Section 3 of Ordinance 2006-37 SECTION 3. Establishment of Public Arts Program. The public arts program is hereby established to, among other things, promote and encourage public and private art programs, to further the development and awareness of, and interest in, the visual arts, to create an enhanced visual environment for city residents, to commemorate the city's rich cultural and ethnic diversity, to integrate the design work of artists into the development of the city's capital infrastructure improvements and to promote tourism and economic vitality in the city through the artistic design of public spaces. This program requires a somewhat organized and structured plan that defines some of the elements needed to implement projects resulting from this ordinance. The Public Art Master Plan (PAMP) will be a framework containing a series of policy measures and processes to enable the City to fulfill its public art objectives effectively and efficiently. While I am referring to this as the PAMP, I would prefer that we would title it simply a Guide or Guidelines, which seems to allow for a bit more flexibility for future needs that will require change or amending this document. The Goal of the Public art plan is very basically to help acquire beautiful, interesting, and sometimes fun, works of art for public places in Wylie. This should go hand in hand with the existing Master Plan for the City of Wylie and work in harmony and promotion of the urban design and community development goals. This in turn, makes a better environment for the City of Wylie. It promotes tourism and economic energy and helps to create a large community public space with many special spaces within it. As it grows and follows the guidelines that have been put in place, the city will develop a profile that meshes the past with the present and future without losing any of it's charm or history, yet allowing it to move forward bringing the past to future generations. The enhancement of this space frequently attracts people to use the area, which begins to fulfill the mission of the community. (Ordinance No. 2006-37, Section 3) The goals of the citizens of Wylie are that the results of"the plan" can and will give a picture of visual growth of the artistic nature in the region and beyond. It is a message from the City to future inhabitants about what we care about. Eventually this public art program will take art off of the walls and pedestals and it can focus on City gateways and community design projects. Vision should be the cumulative as the projects are completed and their results can be seen. There is already an expansive vision plan in place both for the Master Plan for the City and Ordinance 2006-37, which has created the PAMP. Finally,this plan is going to be in place to help create an improved visual environment 3 for the citizens of Wylie: to integrate the work of artists into the development of new public buildings and public works projects,to promote industry,to promote tourism, and as other goals develop,to help find a way for them. Ultimately, it is to make Wylie a better place in which to live and do business. 4 10 inj I/iC Pubic Ml Pkiu ik/7ru1u.ii that will be used,needed: Public Art includes works of art in any material created for positioning in or on your public spaces, or that are a part of the architecture, landscape design or the site work. Artwork— works in large assortment of media that are made by working,professional artists. Artist Design Services— This is usually an artist or group of visual artists who can develop designs for art, landscape art, urban design elements, or other architectural or landscape architectural projects. Design Subcommittee Acquisition including work that has been purchased gifted or by other means acquired by the City. Accessioning this is the step taken to include and record the piece in the City records. Deaccessioning this is a step taken to remove the piece from the permanent collection of the City. Professional Artist This is an artist who has established a valid reputation of excellence through the judgment of juried exhibitions,public commissions,foundations awards,and peer group reputation. Public Art Coordinator will mean the person who is temporarily or permanently responsible for the running of this program. The coordinator can be a contract consultant, a city staff member, city council member,a volunteer authorized by the City Manager or a combination of these. 5 (but not limited to): Painting: all, including permanently attached works such as murals and frescoes. Sculpture: in the round, bas-relief, high relief, mobile,fountain, environmental, street furniture, kinetic, electronic in all materials available. Forms in other materials: glass, mosaic,clay,wood,textile,metal,fiber,fiberglass,and mixed media. Photography: graphic arts: film-making, print-making, drawing and calligraphy where appropriate. (as it works with the design and the art) (including but not limited to): All artwork commissioned by the Wylie PAP needs to be designed or facilitated by professional artists. Therefore design work provided by the artist to be incorporated into the construction project, (by the contractor or fabricator)including: Interior or exterior surfaces,fixtures and functional elements: Outdoor space design elements in plazas,city spaces,gateways,etc. Artists design and collaboration of public works stations: wastewater facilities, bike and pedestrian paths,parks,roadways, and other community facilities. Ma s •ro•riate or :(or expenditures) Reproductions, of original art (mechanical or otherwise) except in the case of film, video, photography, printmaking or other REAL art. Architectural, functional, decorative, ornamental elements which are designed by the building's architect, as opposed to elements created by an artist(or artist design team)commissioned for this purpose. Art Objects which are mass produced or manufactured, such as statues, fountains, normal playground equipment unless brought in as part of the artists design. Landscape architecture and landscape gardening in general unless these elements are designed by an artist who uses them as a major part of the art. 6 1 1 1 1 1 1 s Include examples of mission statements to give the board a starting point. If you have an urban plan, use it. If your mission is to justimprove new buildings, start there, if your mission is to improve a district,the downtown area, start there, but frankly it is easier not to get t yourself into making the statement for a specific thing. MUCH BETTER to say that an ANNUAL program will be developed by the public art committee to submit to the city council annually for approval And then proceed to invite several interested members of the community BEYOND the PAC to be a part of this discussion. The reasons for including •u7lu7liiillitll Creation of the City Art Program should refer to Ordinance No.2006-37 This is a dangerous area. The accountability should be well-handled by the process of choosing the public art committee and the approval process that follows that. That is the accountability process. The responsiveness to the community will come as smaller areas have projects and the smaller sub-communities can then be involved in different ways. (expand). Initially, there will be large projects to deal with and these will go through the initial approval and scrutiny that will not happen later in the process. smdl Pesi..nsThUths Refer to Chart#1 for the lineage regarding the role of art and the PAMP in the City of Wylie. Players to include City Council, Who will review the annual planned CIP to see if they are eligible for the per cent for art. which the City Secretary will then appropriate money to the Percent for Art Account as part of the annual capital budgeting process and submit it to the e city council for approval for transfer to the PAP accounts. Public Arts Advisory Board, Ultimately — They will have the responsibility for managing the program — rules, regulations, policies, guidelines, all consistent with the Master Plan as provided in this document. There will be adequate room for future change and addition as that is part of the growth process in a smart city. Choose members of Design Subcommittee and Artists Selection Committees when appropriate. Review and approve the recommendations of artists from the artist selection panels, following Design Subcommittee review and recommend dollar amounts of contracts. Review and approve proposed gifts and loans of public art to the City (when the proposed loan or gift is valued in excess of based on a professional appraisal supplied by the donor) upon recommendations from the Design Subcommittee. 7 City Manager & Board Staff Liaison This is for a future development time when your program warrants a full time person who can interact directly with the City Manager and the City Council along with the Public Arts Committee and all of its branches. In the interim if the City Secretary is able to handle the additional work load she/he would be the person best equipped to do this job. It is a position that could,perhaps, encourage some public docent assistance. City Council Authorizes capital Public Art Com project Art Selection Panel Reviews artist recom. I Tours site,takes some Forwards public input,issues call Arts Commission recommendation to for artists or••••• Council Or Secretary -interviews artist Directs Public Art Reviews proposals Committee to -recommends artist(s) proceed wit project For project Arts Commission or City I Council Public Art Com. -Agrees to artist recom. -staff negotiates artist Defines project budget, parameters selection contract. process.Recommends Art Selection Panel City Council Approves Artist Contract Chart # 1 8 Artists Registry The author will be providing an outline of how to set up an artists registry that would most likely be set up in the new City of Wylie library. This could possibly be managed by an intern or an art docent who volunteered a few hours a week. Artist Selection panels, Need to be made of a mix of people who are somewhat knowledgeable in the areas of public art and aesthetics. These people should also be able to advise about the quality of the work of artists under consideration. The panel should also have a selection of citizens from the community including a user of the space, building, facility in, or on which the art will be placed plus a local or regional artist IF THAT IS POSSIBLE. This balance helps to achieve the desired goal which brings the highest quality possible for the budget and process. If the building has had a key architect or architecture firm, it would be important that someone from that firm, preferable the design architect, be involved in the selection pane. Initially you are going to need to use a consultant. During this time you should use it as a learning experience for the future training of a chosen few who will be the nucleus of your committee. Eventually many of your citizens will find this very interesting and educate themselves to be a part of future committees. This might be the impetus for a community outreach program on public art and a docent program as the artists install their pieces. ti Capital improvement projects should be reviewed as soon as the fiscal year approaches. In the future, the City of Wylie should consider raising the % for Art to 1 1/2 % with the goal ultimately being 2%which is closer to the national average. Exploration into grants for specific projects should be researched on a semi-annual basis. This could be a position for a city intern until a full time arts coordinator is on board. These grant seeking documents for capital purposes should include a Percent for Art Accounts. Each year 15% of the budget should immediately be put into an interest-bearing account for the future years. This will eventually be used for restoration and repair in the future on public art pieces with leftover monies used for projects that have been earlier determined that are city spaces not connected to the CIP. As I see it this applies perhaps more to public spaces (real estate) with then a goal of acquiring or commissioning works for these spaces. This is a long-term project and should be thought of after the Art in Public places program involving the CIP is well in place. 9 At the present this should be a function of the PAC. Prior to each fiscal year a review of existing public art and it's placement AND condition within the city; and a budget needed to repair any work if needed, along with the projected CIP projects and their budgets. These, combined with any loan work (works) singularly or within exhibitions will form the Annual Public Art Work Plan. This should determine if it is then possible to have monies for any other direction of building on the community strengths that can be expanded from the overall community goals that cannot be reached through CIP projects. 0000 0000 ou I Art/ t Atection Pallet , Need to be made of a mix of people who are somewhat knowledgeable in the areas of public art and aesthetics. These people should also be able to advise about the quality of the work of artists under consideration. The panel should also have a selection of citizens from the community and a user of the space, building, facility in, or on which the art will be placed. This balance helps to achieve the desired goal which brings the highest quality possible for the budget and process. Initially you are going to need to use a consultant. During this time you should use it as a learning experience for the future training of a chosen few who will be the nucleus of your committee. Eventually many of your citizens will find this very interesting and educate themselves to be a part of future committees. This might be the impetus for a community outreach program on public art as the artists install their pieces. The above suggestions are simple and straightforward guidelines. As you (PAC) become more practiced with this endeavor and your funds are larger, and, most importantly, you have a long lead time,you can be very creative. You can use marketing skills to approach this — detailed and varied. A call for art?Chose a dozen artists? Quietly zoom in on a few artists you know could give you national and even international exposure. These and hundreds of other possibilities exist and will be easily explored as you move forward. This can take on all forms. As you become more practiced with this endeavor and your funds are larger and, most importantly, you have a long lead, you can be very creative and use marketing talent as well as art talent to approach this. Again, an easy process, but very detailed and varied. Local, regional or national? How do you decide? A call for art? Chose a dozen artists? Quietly zoom in on a few artists you know could do a great job and meet the budget,too? These and another one hundred questions need answering. This is the place to establish what will be done. It is important to have it on paper. elect-ion ProccSS Make a plan for the artists selection process. Each can be different and depend primarily on time and budget. Lin iited ComPetitioi specific artists are invited by the selection group to submit credentials or proposals. 10 Open Competition any artist may submit credentials or proposals, subject to any requirements established by the artist selection or the person(s) Calls for entries for open competitions will be sufficiently detailed to permit artists to determine whether their work is appropriate to the project under consideration. Direct Selection artists who are approached directly. This is usually something that happens in a situation when something has to be done quickly,or within a certain budget and needs to be controlled. Mixed Process This is a mix of all of the above. What about the unknown artists? ** Can they do the job? What about the engineering problems, and the longevity? 11 See Chart A for Initial start. REQUEST FOR ARTIST QUALIFICATIONS PROJECT: (Facility Name) (Address) (Address) 1. Site Description: This section should describe the general public purposes of the facility or site and should also describe in specific detail the activities or operations that will take place once the capital improvement project is completed. It should note the level of public access, the estimate number of persons projected to use facility, number and nature of employees, operating hours, nature of clientele, any unusual characteristics of operations, etc. The general location of site should be described: type of neighborhood, urban design considerations, approaches to the site, etc. Specific plans for the site should be described to the extent that they have been developed. The architectural or engineering program should be attached, along with conceptual designs or schematics, if available. 2. Current Status of the Project: Should note whether project has been funded and appropriated. Source of funding. Status of architect - or engineering - design consultant selection. Identify other design consultants if they have been selected. 3. Timetable: Should project the overall timetable for the project (schedule for conceptual design, schematics, working drawings, construction documents, bidding/contract award, construction, facility opening) with particular note of the periods during which artist involvement would be required. Should also note, if possible, the level of artist commitment required during each time period (i.e., 50% time, full-time, etc.) 4. Project Description: This section should describe in detail the expected scope of services of the artist. Will the artist be a member of the project design team? What will be the artist's relationship to the architect? Subcontractor? Co-equal designer? With whom will the artist contract? Will the artist be working on the overall design or specific elements of the architecture program? Typical elements, such as fixtures and furnishings? 12 Discreet artworks? How will these issues be resolved during the course of the design development? If the project is for the creation of a specific artwork, the nature of the desired work should be described in detail here. For example, if you are looking for an artist to create a stained glass window, then the dimensions of the opening(s), structural considerations, related design elements, etc., should be detailed. 5. Project Budget: This section should state the budget available for the project. Any limitations should be stated here. For instance, if the artist's fee is limited to 15% of the budget for design, with the remainder for the actual fabrication and installation of artworks, that should be stated here. This section should also indicate whether the budget is inclusive of travel, overhead, insurance, site preparation, lighting and utilities, installation, etc. 6. Project Selection Panel: This section should identify the members of the selection panel who will be choosing the artist(s) who will be recommended for the project. 7. Selection Process: This section should outline in some detail the process for the selection of artists, including what the respondents are being asked to submit, whether travel and honoraria are offered, whether the artists will be asked to develop a proposal, etc. Typically, artists will be asked to submit slides of previous work, a professional résumé and a brief statement of their response to the challenge offered by the project, not to exceed two typewritten pages. Up to five artists will be selected to interview for the project. Finalists who are asked to prepare a proposal will normally be paid a small honorarium. The selection panel should always reserve the right to reject all proposals or applicants. 8. Pre-submittal Conference/Site Visits: This section should be included if there is an opportunity to visit the site prior to the submittals or whether there is a mandatory or optional pre-submittal meeting prior to submittal. If so, this section should indicate the time, date and place of the meeting, as well as a contact person. 9. Deadline: This section will contain the time and date by which the submittals are due, and should indicate whether this is a postmark deadline or a receipt deadline. This section should also indicate when artists can expect to receive notice about the project. 10. Instructions: This section will contain specific instructions relating to the artist submittals. They might for instance contain the following instructions: a. Entries will be accepted in two-dimensional form only. 13 b. Submit: 1) upto twenty slides, one C[), or Rash Drive or photographs of 20 recent representative work, a list with annotation (10 copies), your current professional resume (10 copies) and a no-more-than two-page response to the opportunity presented by the project (10 copies). c. It is emphasized that specific proposals for the artworks are not requested at this time and will not be reviewed. d. Include a se|f-addressed, stamped envelope with sufficient postage to cover the return of visuals. Only slides, C[)'s and photographs will be returned. e. Every work should be labeled on the front of the slide with the artist's name, the title of the work, the medium, dimensions and date of creation. An arrow should indicate the top of the slide. f. Every item in the artist's submittal should be labeled with the artist's name. g. Artists whose work, by its nature, cannot be shown through the media listed above should contact (Person and phone number), to make special arrangements. h. All materials must be contained in a single envelope not to exceed 16" X 20". Only one entry per envelope. Artists submitting to other projects should make separate submittals. Entries should be addressed to: (Project Name) VVy||e Arts Advisory Board 2000 Highway 78 North Wylie, TX 75098 |. VVh||e every precaution will be taken to prevent the loss or damage to entries, the VVy||e Arts Commission, its staff and selection panels assume no responsibility in the case of loss or damage to the items submitted. j. The VVy||e Arts Commission reserves the right to duplicate materials for its artists registry. Artists not wishing their work duplicated for the registry should indicate that in their submittal. k. All artists who submit for this project will be notified by rna|| of the selection panel's decision. No information regarding the decision will be released bytelephone. |. Artists who wish to be notified that their submittal has been received should include a stamped, self-addressed postcard that will be mailed back to them upon receipt ofthe submittal. 14 AGREEMENT FOR ARTIST CONSULTING SERVICES THIS AGREEMENT made and entered by and between the City ofWylie, a political subdivision of the State of Texas (hereinafter referred to as "City") and Sharon Leeber, President of Architectural Arts, a company duly qualified to conduct business in the State of Texas, whose principal place of business is 6410 Dykes Way, Dallas, TX 75230, (hereinafter referred to as "Artist"). NOW, THEREFORE, |n consideration of, the mutual terms, conditions, promises, covenants and payments hereinafter set forth, City and Artist agree as follows: ARTICLE 1 DEFINITIONS AND IDENTIFICATIONS: For the purposes of this Agreement and the various covenants, conditions, terms and provisions which follow, the definitions and identifications set forth below are assumed to be true and correct and are agreed upon by the parties. 1.1 CITY COUNCIL: The City Council of Wylie, Texas, which is the governing body of the City of Wylie government. 1.2 ARTIST: the business entity selected to perform services pursuant to this Agreement. 1.3 CONTRACT ADMINISTRATOR: The Contract Administrator shall be the Public Art Coordinator, staff of the Public Arts Advisory Board. In the administration of this Agreement, as contrasted with matters of policy, all parties may rely upon instructions or determinations made by the Contract Administrator. 1.4 CITY: City ofWylie, a body corporate and politic and a political subdivision of the State of Texas. 1.5 NOTICE TO PROCEED: Avvr|tten Notice to Proceed with the Project issued by the Contract Administrator. 1.6 PROJECT: (describe) 1.7 WORK: The product(s) of the Artist's consulting services under this Agreement. ARTICLE PREAMBLE: Negotiations pertaining to the services to be performed by Artist were undertaken between Artist and a committee pursuant to Chapter , City of Wylie Code (Public Art Ordinance reference), and this Agreement incorporates the results of such negotiation. 15 ARTICLE SCOPE {)FWORK: 3.1 For services rendered herein, City shall pay Artist a sum not to exceed Dollars $ for work performed during the period beginning through. Artist shall furnish services as described in Exhibit A of this Agreement. Terms and Conditions for Payment are attached |n Exhibit Bof this Agreement. 3.2 Artist shall provide monthly progress reports and/or deliverables to Contract Administrator in a manner acceptable to the Contract Administrator. ARTICLE CHANGES IN SCOPE AND ADDITIONAL WORK: 4.1 Artist shall, whenever required during the term of this Agreement, present to the City in writing, drawing or other appropriate media for further review and approval any significant changes in the scope, design, or nature of the work being performed under this Agreement. 4.2 Artist shall be obligated to perform the services called for in Exhibit A Artist and City agree that Artist shall retain artistic control of his/her services in the performance of the services under this Agreement, subject only to the limitations imposed in Exhibit A 4.3 Notwithstanding, the provision of Section 4.2 immediately above, City may, at any time, request Artist in writing to: revise portions of the services that he/she has previously completed in a satisfactory manner; delete portions of the Scope of Work which has yet to be performed; perform additional work beyond the Scope of Work provided in Exhibit A> or make other changes within the general Scope of Work to be performed under this Agreement. In the event of such a written request, Artist may, but shall not be obligated to, agree to any such request. (a) In the event the request for change is agreed to by Artist, this Agreement shall be amended, in writing, specifying the agreed changes, including, but not ||rn|ted to, a description of services, additional budget, payment schedule and timetable. (b) In the event that Artist does not agree to the request, City shall be entitled to terminate the Agreement for cause pursuant to Article 18, hereinafter. 4.4 No services for which additional compensation will be charged shall be provided by Artist without the prior vvr|L1en authorization by City and a Notice to Proceed from the Contract Administrator. ARTICLE RESPONSIBILITIES OF THE ARTIST: 5.1 Artist agrees that an essential element of this Agreement is the sW|| and creativity of Artist. Artist shall not assign any of the creative or artistic portions of the work to another party for the production of the work without the written consent 16 of the City. Failure to conform to this provision may be cause for termination of this Agreement, at the sole option of City. 52 Artist shall be responsible for providing services described in Exhibit A including, but not ||rn|ted to, the quality and Urne|y completion of the services. Artist shall, without additional compensation, correct or revise any errors, omissions, or other deficiencies |n the work. 5.3 In the event the services of Artist are integrated into, combined, or otherwise coordinated with services by third parties not within the control of the Artist, the Artist shall not be responsible for such third party services. If any part of Artist's work depends for proper execution or results upon the work of City, or a third party responsible to the City, Artist shall, prior to proceeding with his or her work, promptly report to the City any apparent discrepancies or other defects in such other work which renders it unsuitable for proper execution and results by Artist. Artist shall not be responsible for any liability or failure to fulfill his/her obligations because of such discrepancies or defects. Failure of Artist to report a discrepancy or defect shall constitute an acceptance of C|ty's or third party's work as fit and proper to receive Artist's work. Any costs caused by defective or |||-Urned work shall be borne by the party responsible therefore. Nothing in this section shall ||rn|t the responsibility of Artist to take all reasonable steps to coordinate his/her work with the work of the City or of a third party on the project. 5.4 Artist shall supply City with: (a) His/her current professional resume (b) Four (4) 35-rnrn color slides, jpegs on a C[), Flash Drive or other approved method of any completed work (c) Two (2) Black and White 8" x 10" glossy photographic prints orjpegs of the work (d) Detailed information concerning the materials used in the creation of the work (e) A detailed maintenance program and schedule for the work. ARTICLE RESPONSIBILITIES {)FCITY: 6.1 City shall assist Artist by placing at Artist's disposal all public information it has available pertaining to the Project. 6.2 City shall be responsible for providing Artist, without cost, copies of designs, drawings, reports, and other relevant data needed by Artist in order to design and execute the work. 6.2 City shall perform, in a Urne|y way, each and every activity as set forth in the Scope of Services. If delays occur when deliverables of Artist are dependent upon C|ty's timeliness, Artist's schedule of performance shall be adjusted accordingly. 17 6.3 City shall: (a) Arrange for access so that Artist may enter upon public and private property as required for Artist to perform the services under this Agreement. (b) Give prompt written notice to Artist whenever City observes or otherwise becomes aware of any development that affects the scope or timing of Artist's services. (c) Arrange appointments, meetings, consultations as needed for Artist to fulfill his/her obligations under this Agreement. (d) Review materials as set forth in Exhibit in a timely manner. ARTICLE WARRANTIES/STANDARDS: 7.1 Artist warrants that the work being contracted will be: (a) The original product of the Artist's own creative efforts (b) Artist shall not sell or reproduce the work, or allow others to do so without the prior written consent ofthe City. 7.3 Artist shall faithfully perform the work required under this Agreement in accordance with standards of care, skill, training, diligence and judgment provided by highly competent professionals who perform work ofa s|rn||ar nature to the work described |n this Agreement. ARTICLE COMPENSATION AND TIME OF PERFORMANCE: 8.1 Artist shall be paid for services satisfactorily rendered pursuant to this Agreement in accordance with the terms herein, Exhibits A and B, and subsequent adjustments, changes or additions as specifically provided for in this Agreement. Such payment shall be full compensation for work performed and services rendered, for all supervision, labor, supplies, materials, equipment or use thereof, taxes, and for all other necessary incidentals. 8.2 The amount and schedule of payments to Artist are contained in the attached Exhibit B, Compensation and Schedule of Payments, provided that such payments shall not exceed a rnax|rnurn amount of DOLLARS, ($ ), subject only to adjustments, changes or additions as specifically provided for in this Agreement ("Total Price"). 8.3 In the event Artist incurs costs in excess of the Total Price, Artist shall pay such excess from his/her own funds, and City shall not be required to pay any part of such excess, and Artist shall have no da|rn against City on account thereof. 8.4 Artist shall submit invoices to City according to the schedule provided for in Exhibit B, such invoice to be in the form requested by the City. 18 85 In the event that the City determines that work for which it has been invoiced does not meet the contract specifications and that it intends to withhold payment, the City shall provide detailed written notice to Artist within fifteen (15) days of receipt of invoice, specifying the failure of performance for which City intends to withhold payment. Artist shall thereafter meet contract standards to the satisfaction of the City or advise the City that he/she disputes the C|ty's determination that the specifications have not been met. 8.6 City shall pay all invoices that meet contract specifications within thirty (3O) days of receipt ofinvoice. 8.7 No payment to Artist for any work performed or services rendered shall constitute a waiver or release by the City of any claims, rights or remedies it may have against Artist under this Agreement or by law, nor shall such payment constitute a waiver, remission, or discharge by the City of any failure or fault of the Artist, to satisfactorily perform the work as required under this Agreement. 8.8 The services to be required of Artist under this Agreement shall be completed in accordance with the schedule for completion of the work as proposed by the Artist and approved by the City, provided that such time ||rn|ts may be extended or otherwise modified by vvr|L1en agreement between Artist and City. 8.9 If, when Artist completes fabrication or procurement of the work in accordance with the approved schedule and notifies City that the work is ready for installation, Artist is delayed from installing the work within the time specified in the schedule as a result of the construction of the site not being sufficiently complete reasonably to permit installation of the work therein, or City otherwise does not make the site available toArtist in accordance with the approved schedule, City shall promptly reimburse Artist for reasonable transportation and storage costs incurred for the period between the time provided in the schedule for commencement of installation and the date upon which the site is made available to the Artist for installation of the work. 8.10 Artist shall bear any transportation and storage costs resulting from the completion of the work prior to the time provided in the schedule for installation of the work. 8.11 City shall always grant a reasonable extension of time to Artist in the event that there is a delay on the part of the City in performing its obligations under this Agreement or in completing the underlying capital project, or if conditions beyond Artist's control or Acts of God render Urne|y performance of Artist's services impossible or unexpectedly burdensome. Failure tofulfill contractual obligations due to conditions beyond e|therparty's reasonable control will not be considered a breach of contract; provided that such obligations shall be suspended only for the duration of such conditions. 8.12 For delays in the installation of the work beyond the schedule provided for under this Agreement caused by factors reasonably under Artist's control, City agrees to accept fifty dollars ($50.00) per day as liquidated damages for such delay. 19 ARTICLE 9 ARTIST'S RIGHTS: 9.1 City shall, at its expense, prepare and install at appropriate locations, after consultation with Artist, a plaque or sign, identifying Artist, the title of the work and the year of completion, and shall reasonably maintain such notice in good repair against damages due to normal wear and tear over time, vandalism, and the elements. 9.2 City recognizes that maintenance of the work on a regular basis is essential to the integrity of the work. City shall reasonably assure that the work is properly maintained and protected, taking into account the recommendations of Artist as stated in the maintenance program provided by Artist. 9.3 City agrees that it shall not intentionally damage, alter, modify, change or substantially relocate the work of Artist without first conferring with Artist and obtaining the prior written approval of Artist to the proposed modification, change or substantial relocation. 9.4 Notwithstanding an Artist's refusal to provide (or City's failure for any reason to otherwise obtain) Artist's written approval provided for in Section 9.3 above, City, in its sole discretion, shall have the right to remove any work of art providing the following terms and conditions are met: (a) The removal proposal shall first be submitted to and considered by the City of Wylie Public Arts Advisory Board. Following review and consideration of the removal proposal by the City of Wylie Public Arts Advisory Board, it shall submit its recommendation on removal to the Wylie City Council. (b) The Wylie City Council shall have the duty to decide that a work of art shall be removed. The decision to remove shall not be made by the City Council until the recommendation required in section 9.4a is received and considered by the City Council. (c) In the event that the Wylie City Council shall decide to remove the work, the ARTIST shall have the first right of refusal to purchase his/her work, providing it stands alone and is not integrated into a larger artwork, building or structure and can be removed without expense to City; and the right to have his/her name removed from the work, as well as the plaque installed pursuant to Section 9.1. 9.5 City shall have the right to determine, after consultation with a professional conservator, when and if repairs and restorations to the work will be made. During Artist's lifetime, Artist shall have the right to approve all major repairs and restorations, provided, however, that Artist shall not unreasonably withhold approval for any repair or restoration of the work. If Artist unreasonably fails to approve any repair or restoration, City shall have the right to make or supervise significant repairs and restorations. In the event that City makes repairs or restorations not approved by Artist, Artist shall have the right, at his/her sole option, to have the Artist's name and association with the work severed. To the extent practical, Artist, during Artist's lifetime, shall be given the opportunity to make or supervise significant repairs and restorations and shall be paid a reasonable fee for any such services, provided that City and Artist shall agree, in writing, prior to the 20 commencement of any significant repairs or restorations, upon Artist's fee for such services. 9.6 All repairs and restorations, whether performed by Artist or City, or by third parties responsible to Artist or City, shall be made in accordance with professionally recognized principles ofconservation of artworks. ARTICLE1O COPYRIGHTS: 10.1 Artist shall retain all copyright and all other rights in and to any artwork(s) created under this Agreement, provided that Artist grants to the City an irrevocable license to graphically depict the artwork in any non-commercial manner whatsoever. For the purpose of this limitation, the graphic depiction of the artwork(s) on materials designed to promote the City shall be deemed to be a non- commercial use. 10.2 If for any reason the proposed design is not implemented, all rights to the proposed artwork shall be retained by the Artist. 10.3 Artist agrees that all work performed under this Agreement shall comply with all applicable patent, trademark and copyright laws, rules, regulations and codes of the United States. Artist further agrees that the work will not utilize any protected patent, trademark or copyright in performance of work under this Agreement unless Artist has obtained proper permission and all releases and other necessary documents. If Artist specifies any material, equipment, process or procedure which is protected, Artist shall disclose such patents, trademarks and copyrights in the construction drawings and technical specifications. 10.4 Artist agrees to release, indemnify, and save harmless City, its officers and employees from any and all claims, damages, suits, costs, expenses, liabilities, actions or proceedings of any kind resulting from the performance of work under this Agreement which infringes upon any patent, trademark or copyright protected by law. ARTICLE 11 TIME FOR PERFORMANCE: 11.1 The provisions of this Agreement and the compensation for Artist's services provided for in this Agreement have been agreed to in anticipation of the orderly and continuous progress of the Project. 11.2 Prior to beginning the performance of the services under this Agreement, Artist must receive a written Notice to Begin. 11.3 In the event Artist is unable to complete the above services because of delays resulting from untimely issuance of a "Notice to proceed," or from untimely review and approval by the City, and such delays are not the fault of the Artist, the City shall grant a reasonable extension of time for completion. 11.4 Artist shall complete the services required in Exhibit A within months from the date of approval of the contract by the City Council. 21 ARTICLE 12 TERMINATION: 12.1 Either party may terminate this Agreement with or without cause by providing thirty (30) days notice, in writing, to the other party. Upon the expiration date of said notice, this Agreement shall become of no further force or effect whatsoever and each of the parties shall be relieved and discharged here from. 12.2 In the event that the Agreement is terminated by City without cause, City shall pay the artist for all work performed and services rendered up to the effective date of the termination. City shall have no rights to Artist's creative work, designs or unfinished artvvork(s). 12.3 In the event that the Agreement is terminated by Artist without cause, Artist shall promptly reimburse City for all payments made under this Agreement prior to the termination byArtist. 12.4 In the event that City determines that Artist has substantially failed to fulfill his/her obligations as provided under this Agreement, City shall provide Artist with written notice detailing the specific obligations which the City claims Artist has failed to fulfill and notifying Artist that he/she is deemed to be in breach of the Agreement. If the breach is not cured or if City and Artist cannot agree on a schedule for curing the breach, the Agreement will be deemed terminated on a date specified by the City which will be no sooner than ten (10) days from the date of issuance of the notice. In the event that the Agreement is so terminated by the City, the Artist shall promptly reimburse the City for all payments made under this Agreement prior to the termination by the City. 12.5 If, because of the death, or any other occurrence, it becomes impossible for Artist to render services or perform work under this Agreement, the Agreement shall be deemed terminated. 22 ARTICLE13 I0SU RAN CE/SELF-I0SURA0CE: Artist shall at all times during the term of this contract with the City maintain in force those insurance policies and bonds as designated in the attached Exhibit C and will comply with all those requirements as stated herein. (Author will give City several examples of companies available to insure artists for city projects.) ARTICLE14 EQUAL OPPORTUNITY EMPLOYMENT: 14.1 Artist agrees that it will not discriminate against any employee or applicant for employment for work under this Agreement on the basis of race, color, religion, gender, age, national origin, creed, marital status, or the presence of any sensory, mental or physical handicap in employment or application for employment or in the administration of this agreement. 14.2 Artist agrees to comply fully with all applicable federal, state, or local laws, ordinances, executive orders and regulations which prohibit discrimination. 14.3 Artist shall comply with Title I and Title II of the Americans with [)|sab|||Ues Act regarding nondiscrimination on the basis of disability in employment and in state and local government services, in the course of providing any services funded in whole or in part by City of Wylie. ARTICLE 15 MISCELLANEOUS: 15.1 RECORDS: Artist shall keep such records and accounts and require any and all subcontractors to keep records and accounts as may be necessary in order to record complete and correct entries as to personnel days charged to this engagement and any expenses for which Artist expects to be reimbursed. Such books and records will be available at all times, during normal business hours, for examination and audit by City and shall be kept for a period of three (3) years after the completion of all work to be performed pursuant to this Agreement. Incomplete or incorrect entries in such books and records will be grounds for disallowance by City of any fees or expenses based upon such entries. 15.2 INDEPENDENT CONTRACTOR: Artist is an independent contractor under this Agreement. Personal services provided by Artist shall be by employees of Artist, and not as officers, employees, or agents of City, excepting those employees of City made available to the Artist. Personnel policies, tax responsibilities, social security and health insurance, employee benefits, purchasing policies and other s|rn||ar administrative procedures applicable to the activities of the Artist under this Agreement shall be those of the Artist, except for those employees of the City made available to assist the Artist. 15.3 SUBCONTRACTORS: In the event the Artist, during the course of the work under this Agreement, requires the service of any subcontractors or other professional associates in connection with services or activities covered by this Agreement, Artist must secure the prior written approval of the City. 23 154 ASSIGNMENT: This Agreement, or any interest herein, shall not be assigned, transferred or otherwise encumbered, under any circumstances, by Artist, without the prior written consent ofCity. 15.5 ALL PRIOR AGREEMENTS SUPERSEDED: This document incorporates and includes all prior negotiations, correspondence, conversations, agreements or understandings applicable to the matters contained herein; and the parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained in this document. Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. 15.6 MODIFICATIONS: It is agreed that no modification, amendment or alteration in the terms or conditions contained herein and shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. 15.7 CONFORMITY WITH LAW AND SAFETY: Artist shall observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies, including all provisions of the Occupational Safety and Health Act of 1979 and all amendments thereto, and all applicable Federal, State, municipal and local safety regulations. All services performed by Artist must be in accordance with these laws, ordinances, codes and regulations. Artist shall indemnify and save City harmless from any and all liability, fines, penalties and consequences from any noncompliance or violations of such laws, ordinances, codes and regulations. Accidents: If death, serious personal injury or substantial property damage occurs in connection with the performance of this contract, Artist shall immediately notify the City Risk Manager's Office by telephone. Artist shall promptly submit to City a vvr|L1en report, in such form as may be required by City ofall accidents which occur in connection with this contract. This report must include the following information: (1) name and address of the injured or deceased person(s)> (2) name and address of Artist's subcontractors, if any; (3) name and address of Artist's liability insurance carrier; and (4) a detailed description ofaccident and whether any ofC|ty's equipment, tools, material or staff were involved. 15.8 CONFLICT OF INTEREST: No officer, member, or employee of the City and no member of their governing boards, councils or commissions shall have any pecuniary interest, direct or indirect, in this Agreement or the proceeds thereof. Any violation of this provision shall be considered a material breach of this Agreement. 15.9 USE OF CITY PROPERTY: Artist shall not use City premises, property (including equipment, instruments and supplies) or personnel for any purpose other than the performance of his/her obligations under this Agreement. 24 1510 ENTIRE CONTRACT: The parties agree that this Agreement is the complete expression of the terms hereto and any oral representations or understandings not incorporated herein are excluded. 15.11 TIME: Both parties recognize that time is of the essence in the performance of the provisions of this Agreement. 15.12 SERVICE OF PROCESS: Artist agrees to appoint with a principal place of business at as its sole agent on vvhorn all process may be served in any action or proceeding for any claim or action arising out of this Agreement. 15.13 SEVERABILITY: In the event any of the provisions or applications thereof, of this Agreement is held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions, or applications thereof, shall not be affected. 25 IT T • •F, the parties hereto have executed this Agreement the day and year first below written. -- CITY • -- D ate I : y: City of Wylie Wylie Public Arts Advisory Board "City" -- •TI T D te I : Architectural Arts y: Sharon Leeber, President "Artist" 26 IT T • •F, the parties hereto have executed this Agreement the day and year first below written. -- CITY • -- D ate. : City of Wylie Wylie Arts Commission "City" -- •TI T Date. : Architectural Arts y: Sharon Leeber, President "Artist" 27 T I A • T made and entered by and between the City of Wylie, a political subdivision of the State of Texas (hereinafter referred to as "City") and Sharon Leeber, President of Architectural Arts, a company duly qualified to conduct business in the State of Texas, whose principal place of business is 6410 Dykes Way, Dallas, TX 75230, (hereinafter referred to as "Artist"). • , T • F ID • , in consideration of the mutual terms, conditions, promises, covenants and payments hereinafter set forth, City and Artist agree as follows: A •TIC'. 1 FI ITU, AD D TIFIC TI : For the purposes of this Agreement and the various covenants, conditions, terms and provisions which follow, the definitions and identifications set forth below are assumed to be true and correct and are agreed upon by the parties. 1.1 COUNCIL: The City Council of Wylie, Texas 1.2 ARTIST: The business entity selected to perform services pursuant to this Agreement. 1.3 CONTRACT ADMINISTRATOR: The Contract Administrator shall be the staff of the Public Arts Advisory Board in the administration of this Agreement, as contrasted with matters of policy, all parties may rely upon instructions or determinations made by the Contract Administrator. 1.4 CITY: The City of Wylie, a body corporate and politic and a political subdivision of the State of Texas. 1.5 NOTICE TO PROCEED: A written Notice to Proceed with the Project issued by the Contract Administrator. 1.6 PROJECT: (described) ARTICLE 2 PREAMBLE: Negotiations pertaining to the services to be performed by Artist were undertaken between the Artist and a committee pursuant to The Public Art Master Plan of the City of Wylie, and this Agreement incorporates the results of such negotiation. 28 ARTICLE SCOPE {)FWORK: 3.1 For services rendered herein, City shall pay Artist a sum not to exceed- for work performed during the period beginning through. Artist shall furnish services as described in Exhibit A of this Agreement. Terms and Conditions for Payment are attached |n Exhibit Bof this Agreement. 3.2 The City shall be responsible for providing the Artist, without cost, copies of designs, drawings, reports, and other relevant data needed by Artist in order to design and execute the work. 3.3 Artist shall provide monthly progress reports and/or deliverables to Contract Administrator in a manner acceptable to the Contract Administrator. ARTICLE CHANGES IN SCOPE AND ADDITIONAL WORK: 4.1 Artist shall, whenever required during the term of this Agreement, present to the City in writing, drawings or other appropriate media for further review and approval of any significant changes in the scope, design, color, size, material, utility and support requirements, texture, or location of the site or of the work. A significant change is any change which affects the installation, scheduling, site preparation or maintenance of the work, or the concept of the work as represented in the original approved design. 4.2 Artist shall be obligated to perform the services called for in Exhibit A Artist and City agree that the Artist shall retain artistic control of his/her services in the performance of the services under this Agreement, subject only to the limitations imposed in Exhibit A. 4.3 Notwithstanding, the provision of Section 4.2, immediately above, City may, at any time, request Artist, in writing, to: revise portions of the services that he/she has previously completed in a satisfactory manner; delete portions of the Scope of Work which has yet to be performed; perform additional work beyond the Scope of Work provided in Exhibit A> or make other changes within the general Scope of Work tobe performed under this Agreement. In the event of such a written request, Artist may, but shall not be obligated to, agree to any such request. (a) In the event the request for change is agreed to by Artist, this Agreement shall be amended, in writing, specifying the agreed changes, including, but not ||rn|ted to, a description of services, additional budget, payment schedule and timetable. (b) In the event that Artist does not agree to the request, City shall be entitled to terminate the Agreement for cause pursuant to Article 12, hereinafter. 4.4 No services, for which additional compensation will be charged, shall be provided by Artist without the prior written authorization by City. 29 ARTICLE RESPONSIBILITIES {)F THE ARTIST: 51 Artist agrees that an essential element of this Agreement is the skill and creativity of Artist. Artist shall not assign the creative or artistic portions of the work to another party for the production of the work without the written consent of City. Failure to conform to this provision may be cause for termination of this Agreement, at the sole option ofCity. 5.2 Artist shall be responsible for providing services described in Exhibit A Including, but not ||rn|ted to, the quality and timely completion of the services. Artist shall be responsible for designing the artwork so that it can be constructed without exceeding the approved overall budget for the project. Artist shall, without additional compensation, corrector revise any errors, omissions, or other deficiencies in his/her work. 5.3 In the event the services of Artist are integrated into, combined, or otherwise coordinated with services by third parties not within the control of Artist, Artist shall not be responsible for such third party services. If any part of Artist's work depends, for proper execution or results upon the work of City, or a third party responsible to City, Artist shall, prior to proceeding with his or her work, promptly report to City, any apparent discrepancies or other defects in such other work which renders it unsuitable for proper execution and results by Artist. Artist shall not be responsible for any liability or failure to fulfill his/her obligations because of such discrepancies or defects. Failure of Artist to report a discrepancy or defect shall constitute an acceptance of C|ty's, or third party's, work as fit and proper to receive Artist's work. Any costs caused by defective or |||-Urned work shall be borne by the party responsible therefore. Nothing in this section shall ||rn|t the responsibility of Artist to take all reasonable steps to coordinate his/her work with the work of City or of a third party on the project. 5.4If Artist |s involved in the execution, fabrication, transportation, inspection and/or installation of an artwork, the following provisions shall apply: (a) Artist shall, if and when working on City property, supervise such clean-up as may be reasonably requested by City. At the close out of Artist's work, Artist shall remove his/her equipment, excess materials, etc., promptly and as requested by City. (b) City and any third party contractor on the project shall notify Artist of their operation, construction and maintenance schedules in and around the area where Art|st's work is to be performed. Artist shall perform his/her services in a manner and time so as not to cause interference with any of the operations, construction, or maintenance of City or third party contractor. In the event of a conflict between the schedules of the contractor and/or City and Artist, the conflict will be resolved by City. If the resolution of the conflict results in a delay of the performance of Artist, Artist shall have the right to renegotiate this Agreement to compensate h|rn or her for any additional costs or expenses caused by the delay. (c) Artist shall complete the fabrication and installation of the work in substantial conformity with the attached Exhibit A, Scope ofWork. 30 55Art|st shall supply City with: (a) His/her current professional resume (b) Four (4) 35-rnrn color slides of the completed work (c) Two (2) Black and White 8" x 10" glossy photographic prints ofthe work (d) Detailed information concerning the materials used in the creation of the work (e) A detailed maintenance program and schedule for the work. ARTICLE RESPONSIBILITIES {)FCITY: 6.1 City shall assist Artist by placing at Artist's disposal all public information it has available pertaining to the project. 6.2 City shall perform, in a timely way, each and every activity as set forth in the Scope of Services. If delays occur when deliverables of Artist are dependent upon C|ty's timeliness, Artist's schedule of performance shall be adjusted accordingly. 6.3 CITY shall: (a) Arrange for access so that Artist may enter upon public and private property as required for Artist to perform the services under this Agreement. (b) Give prompt written notice to Artist whenever City observes or otherwise becomes aware of any development that affects the scope or timing of Artist's services. (c) Arrange appointments, meetings, consultations, as needed, for Artist to fulfill his/her obligations under this Agreement. (d) Review materials as set forth in Exhibit in a timely manner. ARTICLE WARRANTIES/STANDARDS: 7.1 Artist warrants that: (a) the design or work being commissioned is the original product of his/her own creative efforts (b) that the work is original (c) that Artist shall not sell or reproduce the work, or allow others to do so without the prior written consent of City. 7.2 Artist shall guarantee his/her work to be free from faults of material and workmanship for a period of one (1) year after installation and final acceptance by 31 City. Artist shall deliver the work to City free and dear of any liens from any source whatsoever. These guarantees shall apply only to that work which |s entirely that of Artist or persons responsible to Artist, as installed, and shall not apply to materials or workmanship of projects in which the work of Artist is integrated or combined, or to materials purchased, acquired, or installed by a person or entity not responsible to Artist. 7.3 Artist shall faithfully perform the work required under this Agreement in accordance with standards of care, skill, training, diligence and judgment provided by highly competent professionals who perform work ofa s|rn||ar nature to the work described in this Agreement. ARTICLE COMPENSATION AND TIME OF PERFORMANCE: 8.1 Artist shall be paid for services satisfactorily rendered pursuant to this Agreement in accordance with the terms herein, Exhibits A and B, and subsequent adjustments, changes or additions as specifically provided for in this Agreement. Such payment shall be full compensation for work performed and services rendered, for all supervision, labor, supplies, materials, equipment or use thereof, taxes, and for all other necessary incidentals including transportation of the work to the designated site. 8.2 The amount and schedule of payments to Artist are contained in the attached Exhibit B, Compensation and Schedule of Payments, provided that such payments shall not exceed a rnax|rnurn amount of DOLLARS, ($ ), subject only to adjustments, changes or additions as specifically provided for in this Agreement ("Total Price"). 8.3 In the event Artist incurs costs in excess of the Total Price, Artist shall pay such excess from his/her own funds, and City shall not be required to pay any part of such excess, and Artist shall have no da|rn against City on account thereof. 8.4 Artist shall submit invoices to City according to the schedule provided for in Exhibit B, such invoice to be in the form requested by City. 8.5 In the event that City determines that work for which it has been invoiced does not meet the contract specifications and that it intends to withhold payment, City shall provide detailed written notice to Artist within fifteen (15) days of receipt of invoice, specifying the failure of performance for which City intends to withhold payment. Artist shall thereafter meet contract standards to the satisfaction of City or advise City that he/she disputes C|ty's determination that the specifications have not been met. 8.6 City shall pay all invoices that meet contract specifications within thirty (3O) days of receipt ofinvoice. 8.7 No payment to Artist for any work performed or services rendered shall constitute a waiver or release by City of any claims, rights or remedies it may have against Artist under this Agreement or by law, nor shall such payment constitute a waiver, remission, or discharge by City of any failure or fault of Artist, to satisfactorily perform the work as required under this Agreement. 32 8.8 The services to be required of Artist under this Agreement shall be completed in accordance with the schedule for completion of the work as proposed by Artist and approved by City, provided that such time ||rn|ts may be extended or otherwise modified by written agreement between Artist and City. 8.9 If, when Artist completes fabrication or procurement of the work in accordance with the approved schedule and notifies City that the work is ready for installation, Artist is delayed from installing the work within the time specified in the schedule as a result of the construction on the site not being sufficiently complete reasonably to permit installation of the work therein, or the City otherwise does not make the site available to Artist in accordance with the approved schedule, City shall promptly reimburse Artist for reasonable transportation and storage costs incurred for the period between the time provided in the schedule for commencement ofinstallation and the date upon which the site is made available to Artist for installation of the work. 8.10 Artist shall bear any transportation and storage costs resulting from the completion of the work prior to the time provided in the schedule for installation of the work. 8.11 City shall always grant a reasonable extension of time to Artist in the event that there is a delay on the part of City in performing its obligations under this Agreement or in completing the underlying capital project, or if conditions beyond Artist's control or acts of God render Urne|y performance of Artist's services impossible or unduly burdensome. Failure to fulfill contractual obligations due to conditions beyond e|therparty's reasonable control will not beconsidered a breach of contract; provided that such obligations shall be suspended only for the duration of such conditions. 8.12 For delays in the installation of the work beyond the schedule provided for under this Agreement caused by factors reasonably under Artist's control, City agrees to accept one hundred-fifty dollars ($150.00) per day as liquidated damages for such delay. ARTICLE ARTIST'S RIGHTS: 9.1 City shall, at its expense, prepare and install at appropriate locations, after consultation with the ARTIST, a plaque or sign, identifying Artist, the title of the work and the year of completion, and shall reasonably maintain such notice in good repair against damages due to normal wear and tear over time, vandalism, and the elements. 9.2 City recognizes that maintenance of the work on a regular basis is essential to the integrity of the work. City shall reasonably assure that the work is properly maintained and protected, taking into account the recommendations of Artist as stated in the maintenance program provided by Artist. 9.3 City agrees that it shall not intentionally damage, alter, modify, change or substantially relocate the work of Artist without first conferring with Artist and obtaining the prior written approval of Artist to the proposed modification, change or substantial relocation. 33 9.4 Notwithstanding, Artist's refusal to provide (or City's failure for any reason to otherwise obtain) Artist written approval provided for in Section 9.3 above, City, in its sole discretion, shall have the right to remove any work of art providing the following terms and conditions are met: (a) The removal proposal shall first be submitted to and considered by the VVy||e City Arts Commission. Following review and consideration of the removal proposal by the Commission, it shall submit its recommendation on removal to the City of Wylie City Council. (b) The City ofWylie City Council shall have the duty to decide that work of art shall be removed. The decision to remove shall not be made by the City Council until the recommendation required in section 9.4a is received and considered by the City Council. (c) In the event that the City of Wylie City Council shall decide to remove the work, Artist shall have the first right of refusal to purchase his/her work, providing it stands alone and is not integrated into a larger artwork, building or structure and can be removed without expense to City; and the right to have his/her name removed from the work, as well as the plaque installed pursuant to Section 9.1. 9.5 City shall have the right to determine, after consultation with a professional conservator, when and if repairs and restorations to the work will be made. During Artist's lifetime, Artist shall have the right to approve all major repairs and restorations, provided, however, that Artist shall not unreasonably withhold approval for any repair or restoration of the work. If Artist unreasonably fails to approve any repair or restoration, City shall have the right to make or supervise significant repairs and restorations. In the event that City makes repairs or restorations not approved by Artist, Artist shall have the right, at his/her sole option, to have Artist's name and association with the work severed. To the extent practical, Artist, during Artist's lifetime, shall be given the opportunity to make or supervise significant repairs and restorations and shall be paid a reasonable fee for any such services, provided that City and Artist shall agree, in writing, prior to the commencement of any significant repairs or restorations, upon Artist's fee for such services. 9.6 All repairs and restorations, whether performed by Artist or City, or by third parties responsible to Artist or City, shall be made in accordance with professionally recognized principles of conservation of artworks. 34 ARTICLE1O COPYRIGHTS: 10.1 Artist shall retain all copyright and all other rights in and to any artwork(s) created under this Agreement, provided that Artist grants to City an irrevocable license to graphically depict the artwork for any non-commercial purpose whatsoever. For the purposes of this limitation, the graphic depiction of the artwork(s) on materials designed to promote City shall be deemed to be a non- commercial use. 10.2 If for any reason the proposed design is not implemented, all rights to the proposed artwork shall be retained by Artist. 10.3 Artist agrees that all work performed under this Agreement shall comply with all applicable patent, trademark and copyright laws, rules, regulations and codes of the United States. Artist further agrees that the work will not utilize any protected patent, trademark or copyright in performance of work under this Agreement unless Artist has obtained proper permission and all releases and other necessary documents. If Artist specifies any material, equipment, process or procedure which is protected, Artist shall disclose such patents, trademarks and copyrights |n the construction drawings and technical specifications. 10.4 Artist agrees to release, indemnify, and save harmless City, its officers and employees from any and all claims, damages, suits, costs, expenses, liabilities, actions or proceedings of any kind resulting from the performance of work under this Agreement which infringes upon any patent, trademark or copyright protected by law. ARTICLE 11 TIME FOR PERFORMANCE: 11.1 The provisions of this Agreement and the compensation for Artist's services provided for in this Agreement have been agreed to in anticipation of the orderly and continuous progress of the Project. 11.2 Prior to beginning the performance of the services under this Agreement, Artist must receive a written Notice to Proceed. 11.3 In the event Artist is unable to complete the above services because of delays resulting from untimely issuance of a "Notice to Proceed," or from untimely review and approval by City, and such delays are not the fault of Artist, City shall grant a reasonable extension of time for completion. 11.4 Artist shall complete the services required in Exhibit A within months from the date of approval of the contract by the Board of City Commissioners. 35 ARTICLE 12 TERMINATION: 12.1 Either party may terminate this Agreement with or without cause by providing thirty (30) days notice, in writing, to the other party. Upon the expiration date of said notice, this Agreement shall become of no further force or effect whatsoever and each of the parties shall be relieved and discharged here from. 12.2 In the event that the Agreement is terminated by City without cause, City shall pay the artist for all work performed and services rendered up to the effective date of the termination. City shall have no rights to Artist's creative work, designs or unfinished artvvork(s). 12.3 In the event that the Agreement is terminated by Artist without cause, Artist shall promptly reimburse City for all payments made under this Agreement prior to the termination by Artist. 12.4 In the event that City determines that Artist has substantially failed to fulfill his/her obligations as provided under this Agreement, City shall provide Artist with written notice detailing the specific obligations which City claims Artist has failed to fulfill and notifying Artist that he/she is deemed to be in breach of the Agreement. If the breach is not cured or if City and Artist cannot agree on a schedule for curing the breach, the Agreement will be deemed terminated on a date specified by City which will be no sooner than ten (10) days from the date of issuance of the notice. In the event that the Agreement is so terminated by City, Artist shall promptly reimburse City for all payments made under this Agreement prior to the termination by City. 12.5 If, because of the death, or any other occurrence, it becomes impossible for Artist to render services or perform work under this Agreement, the Agreement shall be deemed terminated. ARTICLE13 I0SU RAN CE/SELF-I0SURA0CE: Artist shall at all times, during the term of this contract with City, maintain in force those insurance policies and bonds as designated in the attached Exhibit C and will comply with all those requirements as stated herein. ARTICLE14 EQUAL OPPORTUNITY EMPLOYMENT: 14.1 Artist agrees that it will not discriminate against any employee or applicant for employment for work under this Agreement on the basis of race, color, religion, gender, age, national origin, creed, marital status, or the presence of any sensory, mental or physical handicap in employment or application for employment or in the administration of this agreement. 14.2 Artist agrees to comply fully with all applicable federal, state, or local laws, ordinances, executive orders and regulations which prohibit discrimination. 14.3 Artist shall comply with Title I and Title II of the Americans with Disabilities Act regarding nondiscrimination on the basis of disability in employment 36 and in state and local government services, in the course of providing any services funded in whole or in part by the City of Wylie. ARTICLE 15 MISCELLANEOUS: 15.1 RECORDS: Artist shall keep such records and accounts and require any and all subcontractors to keep records and accounts, as may be necessary, in order to record complete and correct entries as to personnel days charged to this engagement and any expenses for which Artist expects to be reimbursed. Such books and records will be available at all times, during normal business hours, for examination and audit by City and shall be kept for a period of three (3) years after the completion of all work to be performed pursuant to this Agreement. Incomplete or incorrect entries in such books and records will be grounds for disallowance by City of any fees or expenses based upon such entries. 15.2 INDEPENDENT CONTRACTOR: Artist is an independent contractor under this Agreement. Personal services provided by Artist shall be by employees of Artist, and not as officers, employees, or agents of City, excepting those employees of City made available to Artist. Personnel policies, tax responsibilities, social security and health insurance, employee benefits, purchasing policies and other s|rn||ar administrative procedures applicable to the activities of Artist under this Agreement shall be those of Artist, except for those employees of City made available to assist Artist. 15.3 SUBCONTRACTORS: In the event Artist, during the course of the work under this Agreement, requires the service of any subcontractors or other professional associates in connection with services or activities covered by this Agreement, Artist must secure the prior vvr|L1en approval of City. 15.4 ASSIGNMENT: This Agreement, or any interest herein, shall not be assigned, transferred or otherwise encumbered, under any circumstances, by Artist, without the prior vvr|L1en consent of City. 15.5 ALL PRIOR AGREEMENTS SUPERSEDED: This document incorporates and includes all prior negotiations, correspondence, conversations, agreements or understandings applicable to the matters contained herein; and the parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained in this document. Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. 15.6 MODIFICATIONS: It is agreed that no modification, amendment or alteration in the terms or conditions contained herein and shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. 15.7 CONFORMITY WITH LAW AND SAFETY: Artist shall observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies, including all provisions of the Occupational Safety and Health Act of 1979 and all amendments thereto, and all applicable Federal, State, municipal and local safety regulations. All services performed by Artist must be in accordance with these laws, ordinances, codes and regulations. Artist shall indemnify and save City harmless 37 from any and all liability, fines, penalties and consequences from any noncompliance or violations of such laws, ordinances, codes and regulations. Accidents: If death, serious personal injury or substantial property damage occurs in connection with the performance of this contract, Artist shall immediately notify the City Risk Manager's Office by telephone. Artist shall promptly submit to City a written report, in such form as may be required by City ofall accidents which occur in connection with this contract. This report must include the following information: (1) name and address of the injured or deceased person(s)> (2) name and address of Artist's subcontractors, if any; (3) name and address of Artist's liability insurance carrier; and (4) a detailed description of accident and whether any ofC|ty's equipment, tools, material or staff were involved. 15.8 CONFLICT OF INTEREST: No officer, member, or employee of City and no member of their governing boards, councils or commissions shall have any pecuniary interest, direct or indirect, in this Agreement or the proceeds thereof. Any violation of these provisions shall be considered a material breach of this Agreement. 15.9 USE OF CITY PROPERTY: Artist shall not use City premises, property (including equipment, instruments and supplies) or personnel for any purpose other than the performance of his/her obligations under this Agreement. 15.10 ENTIRE CONTRACT: The parties agree that this Agreement is the complete expression of the terms hereto and any oral representations or understandings not incorporated herein are excluded. 15.11 TIME: Both parties recognize that time is of the essence in the performance of the provisions of this Agreement. 15.12 SERVICE OF PROCESS: Artist agrees to appoint, with a principal place of business at, as its sole agent on vvhorn all process may be served in any action or proceeding for any claim or action arising out of this Agreement. 15.13 SEVERABILITY: In the event any of these provisions, or applications thereof, of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions, or applications thereof, shall not be affected. 38 IT T • •F, the parties hereto have executed this Agreement the day and year first below written. -- CITY • -- D ate I : y: City of Wylie Wylie Arts Commission "City" -- •TI T D te I : Architectural Arts y: Sharon Leeber, President "Artist" 39 IT T • •F, the parties hereto have executed this Agreement the day and year first below written. -- CITY • -- D ate. : City of Wylie Wylie Arts Commission "City" -- •TI T Date. : Architectural Arts y: Sharon Leeber, President "Artist" 40 CITY OF Wylie, Texas AGREEMENT FOR TRANSFER OF TITLE OFARTWORK THIS AGREEMENT, made and entered into this day of , 20 , by and between City ofWylie, a political subdivision of the State of Texas, hereinafter referred to as the "CITY", and , with an office located at , hereinafter called the "ARTIST". WHEREAS, Artist has created a certain artwork (the "Work"): Title Medium Dimensions [)ate of Creation And WHEREAS, City proposes to purchase Work from Artist, and Artist proposes to transfer title and possession of Work to the CITY; and 0{)VV, THEREFORE, CITY and ARTIST, for consideration hereinafter set forth, mutually agree as follows: ARTICLE 1 SCOPE OF AGREEMENT: 1.1 Artist hereby transfers title and possession of Work to City 1.2 City agrees to pay Artist as compensation a fee of DOLLARS (�), including sales taxes. It is understood that City has no obligations whatsoever with respect to sales commissions or any agreements with galleries or other agents with vvhorn Artist may have contracted. 1.3 Work is to be delivered to City no later than (date) 1.4 Work is to be installed by (date). If Artist is responsible for the installation of Work, the scope of work and additional compensation, if any, for that installation is contained in the attached Exhibit A Any unusual or extraordinary installation requirements, whether to be performed by Artist or others, shall be cleared with City in advance. 1.5 Artist shall supply City with: (a) His/her current professional resume (b) Four (4) 35-rnrn color slides of Work (c) Two (2) Black and White 8" x 10" glossy photographic prints of Work 41 (d) Detailed information concerning the materials used in the creation of Work (e) Adeta||ed maintenance program and schedule for Work. ARTICLE WARRANTIES/STANDARDS: 2.1 Artist warrants that: (a) Work being purchased is the original product of his/her own creative efforts (b) Unless otherwise stipulated, Work is original (c) That Artist shall not sell or reproduce Work, or a||ovv others to do so without the prior written consent of City. 2.2 Artist shall guarantee his/her Work to be free from faults of material and workmanship for a period of one (1) year after installation and final acceptance by City. Artist shall deliver Work to City free and dear of any liens from any source whatsoever. ARTICLE ARTIST'S RIGHTS: 3.1 City shall, at its expense, prepare and install at appropriate locations, after consultation with Artist, a plaque or sign, identifying Artist, the title of Work and the year of completion, and shall reasonably maintain such notice in good repair against damages due to normal wear and tear over time, vandalism, and the elements. 3.2 City recognizes that maintenance of Work on a regular basis is essential to the integrity of Work. City shall reasonably assure that Work is properly maintained and protected, taking into account the recommendations of Artist as stated in the maintenance program provided by Artist. 3.3 City agrees that it shall not intentionally damage, alter, modify, change or substantially relocate Work of Artist without first conferring with Artist and obtaining the prior written approval of Artist to the proposed modification, change or substantial relocation. 3.4 Notwithstanding, a refusal by Artist to provide (or C|ty's failure for any reason to otherwise obtain) Artist's written approval provided for in Section 3.3 above, City, in its sole discretion, shall have the right to remove any work of art providing the following terms and conditions are met: (a) The removal proposal shall first be submitted to and considered by the Santa Cruz Arts Commission. Following review and consideration of the removal proposal by the Arts Commission, it shall submit its recommendation on removal to City Council of City of Santa Cruz. (b) City Council of City of Santa Cruz shall have the duty to decide that a work of art shall be removed. The decision to remove shall not be made by 42 City Council until the recommendation required in section 3.4a is received and considered by City Council. (c) In the event that City Council shall decide to remove Work, Artist shall have the first right of refusal to purchase his/her Work, providing it stands alone and is not integrated into a larger artwork, building or structure and can be removed without expense to City; and the right to have his/her name removed from Work, as well as the plaque installed pursuant to Section 3.1. 3.5 City shall have the right to determine, after consultation with a professional conservator, when and if repairs and restorations to Work will be made. During Artist's lifetime, Artist shall have the right to approve all major repairs and restorations, provided, however, that Artist shall not unreasonably withhold approval for any repair or restoration of Work. If Artist unreasonably fails to approve any repair or restoration, City shall have the right to make or supervise significant repairs and restorations. In the event that City makes repairs or restorations not approved by Artist, Artist shall have the right, at his/her sole option, to have Artist's name and association with Work severed. To the extent practical, Artist, during Artist's lifetime, shall be given the opportunity to make or supervise significant repairs and restorations and shall be paid a reasonable fee for any such services, provided that City and Artist shall agree, in writing, prior to the commencement of any significant repairs or restorations, upon Artist's fee for such services. 3.6 All repairs and restorations, whether performed by Artist or City, or by third parties responsible to Artist or City, shall be made in accordance with professionally recognized principles of conservation of artworks. ARTICLE 4 COPYRIGHTS: 4.1 Artist shall retain all copyright and all other rights in and to any artwork(s) created under this Agreement, provided that Artist grants to City an irrevocable license to graphically depict Work in any noncommercial manner whatsoever. For the purpose of this limitation, the graphic depiction of Work on materials designed to promote City shall be deemed to be a non-commercial use. 4.2 Artist agrees that the creation of Work covered by this Agreement complied with all applicable patent, trademark and copyright laws, rules, regulations and codes of the United States. Artist further agrees that Work does not utilize any protected patent, trademark or copyright in performance of work under this Agreement unless Artist has obtained proper permission and all releases and other necessary documents. If Work contains any material, equipment, process or procedure which is protected, Artist warrants that he/she has disclosed such patents, trademarks and copyrights to City prior to the signing of this Agreement. 4.3 Artist agrees to release, indemnify, and save harmless City, its officers and employees from any and all claims, damages, suits, costs, expenses, liabilities, actions or proceedings of any kind resulting from the performance of work under this Agreement which infringes upon any patent, trademark or copyright protected by law. 43 ARTICLE CONFLICT {)FINTEREST: No officer, member, or employee of CITY and no member of their governing bodies shall have any pecuniary interest, direct or indirect, in this Agreement or the proceeds thereof. Neither Artist, nor any member of ARTIST'S family, shall serve on a CITY board, committee or hold any such position which, either by rule, practice, or action, nominates, recommends, supervises ARTIST'S operations, or authorizes funding to ARTIST. ARTICLE ASSIGNMENT {)FCONTRACT: Nothing contained in this Agreement shall be construed to permit assignment or transfer by ARTIST of any rights under this Agreement and such assignment or transfer is expressly prohibited and void. ARTICLE NON-DISCRIMINATION: ARTIST assures that he/she will comply with the Americans with Disabilities Act and with Title VII of the Civil Rights Act of 1964, and that no person shall , on the grounds of race, creed, color, disability, gender, sexual orientation, national origin, age, religion, political affiliation, or any other non merit factors be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under this Agreement. ARTICLE USE OF CITY PROPERTY: ARTIST shall not use CITY premises, property (including equipment, instruments and supplies) or personnel for any purpose other than the performance of his/her obligations under this Agreement. ARTICLE MODIFICATION: No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto. ARTICLE1O H{)L[) HARM LESS/IN[)EM0IFICATI{)0: 12.1 Artist shall indemnify City, its officers and employees against liability for injury or damage caused by a negligent act or omission of ARTIST in the performance of this Agreement and shall hold CITY harmless from any loss occasioned as a result of the performance of this contract by ARTIST. 12.2 City shall indemnify Artist against liability for injury or damage caused by a negligent act or omission of City, its officers and employees in the performance of this Agreement and shall hold Artist harmless from any loss occasioned by such negligent act oromission. 44 ARTICLE 11 SEVERABILITY: In the event any of the provisions, or applications thereof, of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions, or applications thereof, shall not be affected. 45 IT T • •F, the parties hereto have executed this Agreement the day and year first below written. -- CITY • -- D ate I : y: City of Wylie "City" -- •TI T D te I : Architectural Arts y: Sharon Leeber, President "Artist" 46 IT T • •F, the parties hereto have executed this Agreement the day and year first below written. -- CITY • -- D ate I : y: City of Wylie "City" -- •TI T D te I : Architectural Arts y: Sharon Leeber, President "Artist" 47 „„„ „„, or, or 0. Collection Management Maintenance & Conservation . Artists will be required to provide the Wylie PAP with information about methods and frequency of routine maintenance during the time of installation. When the work is completed by someone other than the artist (fabricator) they will provide this information to the city. The Coordinator will make periodic checks as suggested by the artists for each work. See Chart #3 (The author will supply a maintenance chart for the city to keep. This will be provided around the 20th of March) Banking Within the Capital Improvements Fund there should be a specific account designated "Percent for Arts”. All money appropriated for the arts should go in this account. There should be established within the % fund an interest bearing account that is funded for future maintenance by each project. Money pooled or remaining at the end of each fiscal year should be held in this interest account for re-appropriation for projects not directly attached to CIP projects. Insurance See Artist Contract with the City under Self Insurance. The City should insure most Public art with the Capital Improvement. If it is a donated work of art (see separate guidelines for acceptance of these works) those monies should be addressed in the acceptance of the work. If it is a commissioned or purchases work by the city that has a particular quirk, or potential hazard to it (review information now available regarding Battery Park in NYC) the insurance could be covered with an agreement by one of the contractors (architect, landscape architect) to reduce the threat to the city. The next steps will be problematic only in the need to curtail them. ey will grow so rapidly out of the process and fulfillment of the initial projects that this is the time to sit down and decide some of the REAL goals, immediate and future goals. These are the pieces that you want left unsaid in a document that you might find outgrown as quickly as you find some maturity in these initial projects. Some of the eagerness can be addressed ins all budget items using local artists and craftsman, who can also work with the community and the public school system to increase awareness, 48 create community projects and perhaps by seeking in kind donations from local merchants make special annual festivals really something to look forward to. This type of project can include things as simple as doing identifying markers on bike paths, footpaths, trails (information systems, too), along with designing small bridges over creeks and low spaces, designing public flower gardens and so many community projects that it could even be a community effort coming up with projects under a certain budget. Quickly a cohesive pattern will be seen for what REALLY NEEDS TO HAPPEN for your downtown commercial area to: 1. attract more business, and more businesses 2. to start filling in the gaps, visual and otherwise that will be very unique to you, the citizens of Wylie, rather than echoing or thinking like towns and cities nearby do 3. to excite the citizens living IN Wylie about Public Art and Art in all forms, music, performance including theater and dance and to begin to participate both physically and philanthropically in all of those next steps that will happen by taking these first steps. CtmlTninl 1FtF1TLH, 1ifltiCiL1n e chin 00 IL I ris ihe c I]Partri T inirven e11 In the above document I have shown how the community can be involved in this public art process. I would especially encourage the PAC to use the press and radio to let the community of Wylie know about what is happening at various stages of the process AFTER the decisions have been made. I do not encourage them to let the public be involved with decisions at this beginning time. When it is time for the artist to come and present the maquette (if that happens) I would hope that enough per diem could be allowed to have the artist stay an extra day to do a public presentation and to work with the public school at whatever level the PAC feels would be most beneficial to the community. As soon as the installation is well enough underway that there is no danger, and viewers are not a nuisance, I would encourage the public to come and watch, perhaps turn it into a public picnic kind of affair with local restaurants supplying a main dish and interested citizens bringing auxiliary food: a sort of"feed the starving artist"gathering. People who are usually against spending money on public art, or generally cantankerous about anything new quickly soften when they are allowed to do a face to face question session and feel as though they are a part of the solution,which artists usually have a knack for encouraging. A 1)1 cc The local newspaper would be the logical place to publish information about the happenings in the Visual and Performing Arts in Wylie. I would also ask a local radio station if they might do a 5-minute session once a month or every two weeks as a public service, or perhaps some Wylie merchants might sponsor it. The new library would seem to be the most logical place to have a semi-permanent exhibition space located in. This could be used for many things in addition to art exhibitions. It would certainly be an appropriate place to show maquettes for final choices for those larger competitions for CIP's. It could also serve as a space for local and regional art fairs and exhibitions,craft fairs in co-ordination with an annual arts&crafts,home—type event. 49 This space would come under the jurisdiction of the City Council and then the Public Arts Council when the event was applicable. The funding would have to be approved of by the City Council. The temporary art exhibitions would be subject to all of the rules and regulations that would be currently in effect for the PAC and the PAMP. P,licyf.r 1, c' I vs 0 0 n c' I A ifisis The City of Wylie should seek artist of the highest quality,as suitable for the project no matter where they live. With that said,it is important to achieve some balance of work by artist of regional,national and local reputation. A project's funding is one of the key guides to resolving this dilemma. Is it a local,regional, national or international budget? Gone are MOST of the days when you can find an artist to do it to help his/her reputation almost on spec. But, it is still sometimes possible to find those artists in the US and Europe,it just takes more management time. In some cases,it might be desirable to have a very high profile artist work on a project. If the budget is available this might be an opportunity to bring one or two local artists on the team as participants. Sometimes,a particular project may require that the artist live nearby. If it is an on-going, day to day project,this may be an opportunity for a local artist(s)to do. The same would work when an artist is needed who is very familiar with the habits of the community. There are many scenarios to this,but they are all workable within reason. This is when it is, perhaps,wise,to spend some money on a seasoned consultant on an hourly basis to guide you. 1 oo oo Artw.rk this c ,pleled around the •lher iViise.things Iwant_to inlud .. Nol necessary ul 1 think they will help you. low lo do an Artisis islry A Guide to PA M ainlenance 50 AGREEMENT BETWEEN THE CITY OF WYLIE,TEXAS(CITY) AND [ARTIST'S NAME](ARTIST) FOR THE FABRICATION AND INSTALLATION OF THE PROPOSED [PROJECT] [PROJECT LOCATION](PROJECT) made as of the day of in the Year 2008 BETWEEN the City: The City of Wylie, Texas 2000 State Highway 78 Wylie, Texas 75098 Telephone 972-442-8100 Facsimile and the Artist(s): [Name] [Address] [City,State,Zip] Telephone Facsimile for the following Project: Fabrication and Installation of the proposed [Name of 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 "City", and [Name of Artist] 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 fabricate and install the proposed[Name of Project and Project Location], 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: Deleted:187 Artist Contract Page 1 of 16 511 7*v1 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 [Written Dollar Amount] ($ Dollar Amount) ("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 percent (15%) of the Artist's Fee, or [Fifteen Percent Written Dollar Amount] ($Dollar Amount) 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 Deleted:187 Artist Contract Page 2 of 16 51127.v1 brought current. Continued performance and/or completion of work by the Artist under this Agreement shall resume upon the payment of the earned fees by the City. 3.3 Failure to Pay - Failure of the City to pay an invoice, for a reason other than cause, to the Artist within sixty (60) days from the date of the invoice shall grant the Artist the right, in addition to any and all other rights provided, to, upon written notice to the City, refuse to render further services to the City and such act or acts shall not be deemed a breach of this Agreement. The City shall not be required to pay any invoice submitted by the Artist if the Artist breached any provision(s)herein. 3.4 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 It. of is transferred to the City upon full payment of Artwork described in Exhibits "A" and "B" __- Deleted:sculpture 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[Artist Name]or©[Artist Name] z{Deleted:187 Artist Contract Page 3 of 16 51127.v1 4.5 Representations and Warranties Regarding Copyright — The Artist represents and warrants that the Artwork is an original creation of Artist's and will not infringe the copyright, trademark, or other intangible rights of any third party. ARTICLE 5 FABRICATION 5.1 Specifications —Artist will 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 Deleted:187 Artist Contract Page 4 of 16 51127.v1 from the storage facility, from the date mutually agreed upon in writing by the Artist and City for delivery to the site until the Artwork is permanently installed. If, for reasons outside of the control of the Artist, the Artwork will not be able to be permanently installed within fourteen (14)days of its arrival date on site, as mutually agreed upon in writing by the Artist and City, and it is necessary to store the Artwork for more than fourteen (14)days prior to the permanent installation, the City must notify the Artist prior to delivery of the Artwork to the site. Storage of the Artwork will be at a location mutually agreed upon in writing by the Artist and City. Any and all costs associated with storing the Artwork, including but not limited to, the cost of transporting the Artwork from the storage facility, shall be apportioned between City and Artist as follows: • first day(as mutually agreed upon in writing by Artist and City for delivery to the site)of storage through day 14—Artist • day 15 until the date the Artwork is permanently installed--City 6.2 Storage Requirements--If the City is providing on-site storage, the City will provide a locked storage facility to adequately, as solely determined by the City, contain the Artwork and the materials and supplies reasonably required by Artist for the permanent installation of the Artwork. ARTICLE 7 FINAL APPROVAL OF ARTWORK Within ten (10) business days of the permanent installation of the Artwork, the City will inspect the Artwork to determine whether it conforms with all of the requirements of this Agreement. If the City desires any modifications to the Artwork or finds that any aspect of the Artwork is not in conformance with this Agreement,the City will notify Artist in writing within seven(7)business days of the inspection.Artist will have an opportunity to address and cure any defects, requests or concerns of the City within fifteen(15)days of the date of the City's notice provided pursuant to Article 7. ARTICLE 8 INTEGRITY OF THE WORK 8.1 Repairs and Maintenance-The City undertakes to exercise reasonable care to protect, repair, and maintain the work. Artist agrees to cooperate with and advise the City 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. Deleted:187 Artist Contract Page 5 of 16 51127.v1 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: 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 CIO, 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 Deleted:187 Artist Contract Page 6 of 16 51127.v1 default, in addition to any other remedy available to the City, this Agreement may be terminated by the City upon ten (10)day written notice. Such notice does not waive any other legal remedies available to the City. 11.2 Conditions for Termination of Agreement Other than Artist's Default — If the City deems, in its sole discretion, the Project design is inappropriate or unworkable for the site, or if the deadlines specified herein are not met due, in whole or in part, to the Artist's actions and/or omissions, or if cost estimates indicate that the Project cannot be completed within the Project budget, the City retains the right to terminate this Agreement and is released from the obligation to enter into fabrication and installation of the Artist's design concept for the Project. In the event of any termination,Artist shall deliver to City all work, entirely or partially completed. The Artist shall receive as compensation, full payment for services satisfactorily, as solely determined by the City, performed as outlined in Exhibit "B", as applicable, to the date of the termination notice received. The City shall make this final payment within thirty (30) days of notifying the Artist. 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, Deleted:187 Artist Contract Page 7 of 16 511 7*v1 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 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. {Deleted:187 Artist Contract Page 8 of 16 I 511 7*v1 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: [Name] 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: [Artist Name] [Address] [City, State,Zip] 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. 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. Deleted:187 Artist Contract Page 9 of 16 51127.v1 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]. 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. Deleted:187 Artist Contract Page 10 of 16 51127.v1 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 Name By: By: Mindy Manson Name Title: City Manager Title: Artist Approved as to Form: By: Abernathy, Roeder, Boyd&Joplin, P.C. City Attorney 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 . 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 [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 . NOTARY PUBLIC IN AND FOR THE STATE OF Deleted:187 Artist Contract Page 11 of 16 511 7*v1 EXHIBIT"A" SCOPE OF SERVICES AGREEMENT BETWEEN THE CITY OF WYLIE,TEXAS(CITY) AND[NAME OF ARTIST](ARTIST) FOR THE FABRICATION AND INSTALLATION OF THE PROPOSED[NAME AND LOCATION OF PROJECT](PROJECT) Project Description [Description of Project] To fabricate and install the proposed [Project], artist[Artist Name]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 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[Total cost]. ■ 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 City will be responsible for preparation of the site, including installation of the foundation 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. Deleted:187 Artist Contract Page 12 of 16 511 7*v1 EXHIBIT"B" COMPLETION SCHEDULE/PROJECT BILLING/PROJECT BUDGET AGREEMENT BETWEEN THE CITY OF WYLIE,TEXAS(CITY) AND[NAME OF ARTIST](ARTIST) FOR THE FABRICATION AND INSTALLATION OF THE PROPOSED[NAME AND LOCATION OF PROJECT](PROJECT) Completion Schedule and Project Billing TASK DESCRIPTION PAYMENT TIMELINE 1 Execution of Agreement and Notice to Proceed. Insurance documentation sent to City. 2 Submit final design and budget breakdown for approval to City Staff and Public Art Board. Stamped engineered drawings submitted. 3 Artist begins work on . 4 Artist completes work on . City inspection and approval. 5 Additional work. 6 Additional work. 7 Additional work. 8 Delivery and installation. 9 Final acceptance by project manager, submit maintenance worksheets, dedication. TOTAL Deleted:187 Artist Contract Page 13 of 16 511 7*v1 EXHIBIT"C" AFFIDAVIT THE STATE OF § COUNTY OF § I, ,Artist, make this affidavit and hereby on oath state the following: I, and/or a person or persons related to me, have the following interest in a business entity that would be peculiarly affected by the work or decision on the project(check all that apply); Ownership of 10%or more of the voting shares of the business entity. Ownership of$2,500 or more of the fair market value of the business entity. Funds received from the business entity exceed 10%of my income for the previous year. Real property is involved and I have an equitable or legal ownership with a fair market valu-e 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 affe-cted 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 Signature of Official/Title BEFORE ME, the undersigned authority, this day personally appeared and on oath stated that the facts hereinabove stated are true to the best of his/her knowledge or belief. Sworn to and subscribed before me on this day of , 20 Notary Public in and for The State of My commission expires: Deleted:187 Artist Contract Page 14 of 16 51127.v1 EXHIBIT"D" CONFLICT OF INTEREST QUESTIONNAIRE FORM CIO For vendor or other person doing business with local governmental entity Page 2 LI Name of local government officer with whom filler has affillitation or business relationship.(Complete this section only if the answer to A,B,or C is"YES) This section„ item 5 including subparts A,13,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 gave nment officer named in this section;receiving or likely to receive taxable income from the filer of the questionnaire? n Yes, n No B. Is the filer of the questionnaire,eceiving 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? nYes n No C. Is the filer of this questionnaire affiliated with a corporation or other business entity that the local gayer;;; ent officer serves as an officer or director,or holds an ownership of 10 percent or more? nYes n No D. Describe each affiliation or business relationship. Describe any other affiliation or business relationship that might cause a conflict of interest. 1:1 Signature of person doing busi:il ess with the govern,nental entity Date Amendec mow zt Deleted:187 Artist Contract Page 15 of 16 51127*v1 {Deleted:187 Artist Contract Page 16 of 16 51127.v1