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Res 2873 10/20/19814 . RESOLUTION NO. RESOLUTION APPROVING AND AUTHORIZING CITY MANAGER TO SIGN CONTRACT WITH GEORGE SUGARMAN FOR CREATION OF A SCULPTURE TO BE PLACED IN BELLEVUE PARK TO COMMEMORATE THE CITY ' S 100TH ANNIVERSARY. WHEREAS , the Wichita Arts Commission has proposed, as a centennial project, that a major sculpture piece be erected in Bellevue Park, and that Bellevue Park be upgraded as a place of beauty to compliment such art form; and, WHEREAS , the Wichita Falls Centennial Commission has endorsed the Art Commission ' s plan for such centennial project; and, WHEREAS, the Wichita Falls Parks Board recommended the use of Bellevue Park as a centennial site; and, WHEREAS, a matching grant of $50, 000 has been approved by the National Endowment for the Arts to provide a total of 100, 000 for purchase of the sculpture piece; and, WHEREAS, the Arts Commission, with the assistance of a number of outside art experts , has recommended the commissioning of George Sugarman of New York City to create such sculpture. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF WICHITA FALLS, TEXAS, THAT: That certain contract, a copy of which is attached hereto, between the City of Wichita Falls and Mr. George Sugarman to design , create and install a major piece of sculpture in Bellevue Park in commemoration of the centennial of the City of Wichita Falls, is hereby approved, and the City Manager is authorized to execute the same. PASSED AND APPROVED this the 20th day of October, 1981. MAYOR ATTEST: City Clerk 2- On this day of 1981, the City of Wichita Falls , Texas (hereinafter referred to as the City) and George Sugarman (hereinafter referred to as the Artist) , an individual whose address is 21 Bond Street, New York City, New York 10012 do hereby mutually agree as follows: ARTICLE 1. Definititions A) Commission means the Wichita Falls Arts Commission . 1 B) Contracting Officer means the City Manager of the City of Wichita Falls or his duly authorized representative. 61 ARTICLE 2 . Scope of Services A) The Artist shall perform all services and furnish all supplies, material and equipment as necessary for the design, execution and installation of a sculpture to be placed in Bellevue Park. The Artist shall execute the work in an artistic, professional manner and in strict compliance with all terms and conditions of this contract. B) , The theme of the sculpture shall be based on a crape myrtle or an alternative theme approved by an ad hoc committee comprised of the Commission and three members of the Board of Aldermen, City of Wichita Falls . C) The Artist shall submit to the City a model of the proposed sculpture of size ratio not less than one-eighth inch equal to one foot and transport the model to Wichita Falls not later than The cost of transporting the model shall be at the Artist ' s expense. The model, if and when accepted by the ad hoc committee as provided for in this Article, shall become the property Laa of the City of Wichita Falls. D) The work shall be of materials and of size mutually acceptable to the Contracting Officer and the Artist. E) The Artist shall furnish the following to the City: 1) Three 35 mm slides of the finished sculpture. 2) Three 8 x 10 color photos of the finished sculpture. 3) Monthly progress reports. ARTICLE 3. Changes A) The Artist shall make any revision necessary to comply with such recommenations as the Contracting Officer may make Page 4 of 10 Pages Agenda Item No. 10.e. I- I for practical (non-aesthetic) reasons . B) Any changes made by the Artist after submission of the model must be approved by the ad hoc committee. ARTICLE 4 . Inspection and Care A) The Artist shall furnish facilities for inspection of the work in progress by authorized representatives of the Contracting Officer. The City will contact the Artist in advance to arrange a mutually convenient time for such inspections. B) The Artist shall be responsible for the care and protection of all work performed by him until completion of the installed work and acceptance by the Contracting Officer. The Artist shall repair or restore any work damaged IpriortoitsacceptancebytheContractingOfficer. ARTICLE 5 . Time for Completion The Artist shall complete all work as follows: A) The model as required by Article 2 (C) calendar days after the receipt of notice to proceed. B) The completed work in place by July 1, 1982 , unless a time extension is granted by the Contracting Officer and approved by the National Endowment for the Arts. ARTICLE 6 . Ownership A) The model and sculpture produced under this agreement shall be the property of the City of Wichita Falls. B) The Artist shall neither publicly exhibit the final work nor shall he make exact reproductions or reductions of the finished work except by written permission of the Contracting Officer. ARTICLE 7 . Submission of Model A) Upon completion of the model required in Article 2 (C) of this agreement, the model will be submitted to the ad hoc committee. B) The Artist will accompany the model to the City of Wichita Falls to consult with the ad hoc committee on a date mutually agreed on between the Artist and the Contracting Officer. C) Within 15 days after submission of the model, the Commission and the ad hoc committee will notify the Artist Page 6 of 10 Pages 2- Agenda Item No. 10.e. F r in writing of the approval or rejection of the proposed design. D) In the event the design and any other agreed upon alternative designs are rejected , this agreement shall be terminated. _ F i) The City shall reimburse the Artist for reasonable expenses incurred and a reasonable amount for labor expended in the development of the model, but such reimbursement shall not exceed $10, 000. ri ii) Negotiations for redesign may be opened by mutual agreement of the City and the Artist. There shall be no expense, however, to the City of Wichita Falls unless a Fseparate agreement is executed. E) In the event the proposed design is approved, the C.Artist will be notified in writing to proceed with fabri- cation of the full scale sculpture. ARTICLE 8 . Fee and Payment A) In consideration of the Artist' s performance of the services required by this contract, the City shall pay the I,== Artist a fixed fee not to exceed $100 , 000 . The fee shall be paid in installments as follows: li 1) One-fourth ($25 , 000) upon approval of the model as required by Article 2 (C) . 2) One-fourth ($25 , 000) when 50% of fabrication is completed and so certified L by the fabricator. 00 3) One-fourth ($25, 000) when fabrication is fully completed and ready for transport. 4) One-fourth ($25 , 000) when erection on site is completed. B) The sum of $100, 000 shall include all costs for the sculpture including but not limited to the Artist ' s work, his commission to his agent, materials and fabrication expense, insurance, cost of performance and maintenance bonds, transportation to Wichita Falls, permanent erection at the Bellevue Park site, the Artist ' s travel to Wichita Falls to supervise the erection of the sculpture. a4almlnoir 4144.y—eet.hepttraes.=.,re*atff=trykg= c1Mmiss.iipan.: C) Upon payment of the fourth installment, the Artist agrees to execute a bill of sale for the finished sculpture to the City of Wichita Falls. 3 Page 5 of 10 Pages Agenda Item No. 10.e. 1 r , . • F. ARTICLE 9. Travel All travel by the Artist and his agents or employees as may be necessary for proper performance of the services required under this contract is included in the amount set out in Article 8 of this agreement and shall be at no additional1costtotheCityofWichitaFalls . F ARTICLE 10. Responsibility of the Artist A) Neither the City' s review, approval or acceptance of, nor payment for, any of the services required under this contract shall be construed to operate as a waiver of any rights under this contract or of any cause of action aris- ing out of the performance of this contract, and the Artist shall be and remain liable to the City for all damges to the City in accordance with applicable law for all damages caused to the City by the Artist ' s negligent performance of any of 1 k. the services furnished under this agreement. V B) The right and remedies of the City provided for under this agreement are in addition to any other rights andrremediesprovidedbylaw. C) The Artist guarantees all work to be free from defects or inferior materials and workmanship for one year after the date of final acceptance by the City. If within one year the Contracting Officer finds the work in need of repair because of defective material or workmanship, the artist shall without additional expense to the City, promptly and satisfactorily make the necessary repair. D) The Artist shall furnish bond covering the faithfulLperformanceofalldutiesrequiredbythisagreementand i , the payment of all obligations arising thereunder, in such form as the Contracting Officer may prescribe and with suchL. sureties as he may approve. E) The Artist shall submit the model required in Article 2 (C) and plans for the sculpture to a registered Texas Professional Civil Engineer. The Engineer shall review and inspect the model and plans. The Engineer shall submit a letter to the Contracting Officer giving a report on his inspection. This must be delivered to the Contracting Officer prior to the commencement of construction . L F) The Artist shall , one hundred eighty days (180) prior to the anticipated arrival of the sculpture in Wichita Falls, L 4- Page 7 of 10 Pages Agenda Item No. 10.e. 11 1 F furnish the Contracting Officer with specifications for site preparation at Bellevue Park. It is anticipated that such specification shall not exceed provision of a level surface with more than four reinforced concrete piers with bolts for securing the sculpture. The cost of site preparation shall be at the expense of the City of Wichita Falls. I G) In order to pave the way for a favorable public reception of the sculpture the Commission intends to coordinate a program of public information and education. The Artist agrees to make himself reasonably available to the news media while in the City of Wichita Falls. ARTICLE 11. Suspension of Work A) The Contracting Officer may order the Artist in writing to suspend all or any part of the work for such period of time as he may determine to be appropriate for the convenience of the City. B) If the Contracting Officer orders the Artist to suspend work as provided in (A) of this Article, an adjustment shall be made for any increase in cost of performance of this Icontractnecessarilycausedbysuchsuspension. ARTICLE 12 . Maintenance of Records A) The Artist agrees to keep complete and accurate records, including time sheets and travel vouchers (all travel must be economy) of all time and expenses allocated to the performance of services under this agreement. Such records shall be kept in the offices of the Artist and shall be made available to the Contracting Officer for inspection and copy upon request. These records will be made available as well for audit purposes to the Commission, to the City of Wichita Falls, to the Department of Labor, to the National Endowment for the Arts, to the Comptroller General of the United States or any of their duly authorized representatives and will be retained for three years after the expiration of this contract unless permission to destroy them is granted by the City of Wichita Falls. ARTICLE 13 . Equal Opportunity Clause L During the performance of this contract, the Artist agrees as follows: A) The Artist will not discriminate against any employee IL or applicant for employment because of race, color, religion , 5 Page 8 of 10 Pages Agenda Item No. 10.e. L r . r sex or national origin. The Artist will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race , color, religion , sex, or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for r training, including apprenticeship. The Artist agrees to post in conspicuous places available to employees and applicants for employment , notices to be provided by the Contracting Officer setting forth the provisions of this Equal Opportunity Clause. B) The Artist will , in all solicitations or advertisements F for employees placed by or on behalf of the Artist , state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin. C) The Artist will send to each labor union or representative of workers with which he has a collective bargaining agree- ment or other contract or understanding, a notice, to be provided by the Contracting Officer, advertising the labor union or workers ' representative of the Artist ' s commitments under this Equal Opportunity Clause, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 4.D) The Artist will comply with all provisions of Executive Order No. 11246 of September 24 , 1965 , as amended by Executive Order No. 11375 of October 13 , 1967, and of the rules , Lregulations , and relevant orders of the Secretary of Labor. ift E) The Artist will furnish all information and reports required by Executive Order No. 11246 of September 24 , 1965 , as amended by Executive Order No. 11375 of October 13 , 1967 ,L and by the rules , regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to r his books, records , and accounts by the City and the Secretary L of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders . l' F) In the event of the Artist ' s noncompliance with the EqualL Opportunity Clause of this agreement or with any of the said rules , regulations , or orders, this contract may be cancelled, terminated, or suspended, in whole or in part, and the Artist may be declared ineligible for further government contracts, in accordance with procedures authorized in Executive Order No. 11246 of September 24 , 1965, as amended 6- Page 9 of 10 Pages Agenda Item No. 10.e. 7 by Executive Order No. 11375 of October 13 , 1967 , or by rule , regulation, or order of the Secretary of Labor, or as otherwise provided by law. ARTICLE 14 . Agreement Non-assignable This agreement shall not be assignable by either the Artist or the City. ARTICLE 15 . Texas Law to Apply This agreement in no way affects the Artist ' s obligation to comply with all applicable law, ordinances , and codes of the Federal, State and local governing bodies. All questions arising under this agreement shall be construed and resolved with the laws of the State of Texas. ARTICLE 16 . Time is of the Essence Time is of the essence in this agreement. l IN ,WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS INSTRUMENT TO BE EXECUTED DAY AND YEAR FIRST ABOVE WRITTEN. CITY OF WICHITA FALLS , TEXAS BY: Stuart A. Bach, City Manager ATTEST: City Clerk L George Sugarman EL EL L 7- Page 10 of 10 Pages Agenda Item No. 10.e.