Res 142-2017 10/17/2017Resolution No. __142-2017__
Resolution authorizing the City Manager to execute a professional
services contract with artist Ralph Stearns to paint a mural on the
Lake Wichita Spillway
WHEREAS, the City of Wichita Falls owns the spillway and would like t o
enhance the property with art; and,
WHEREAS, the artist, Ralph Stearns, has been found to be a capable artist able
to produce an appropriate mural at said location.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS, TEXAS, THAT:
The City Manager is hereby authorized to enter into a professional services
contract, as written by the City Attorney, with artist Ralph Stearns to paint a mural on
the east wall of the Lake Wichita Spillway.
PASSED AND APPROVED this the 17th day of October, 2017.
______________________________
M A Y O R
ATTEST:
_____________________
City Clerk
PROFESSIONAL SERVICES AGREEMENT BETWEEN
CITY OF WICHITA FALLS AND
RALPH STEARNS
This Professional Services Agreement (“Agreement”) between the City of Wichita Falls, a home
rule municipality (“City”), and, Ralph Stearns (“Provider”), is made and entered into as of
October ___, 2017 (“Effective Date”).
This Agreement is for the provision of professional services outlined in the Scope of Work.
Provider represents to having the knowledge, ability, skills, and resources to provide such services
in accordance with the terms and requirements of this Agreement.
City and Provider hereby agree as follows:
1. SCOPE OF WORK
A. Provider shall provide a mural on the Lake Wichita Spillway, which includes, but is not
limited to :
B. The scope of the work (“Work”) and for performance thereof, is as set forth in Exhibit A,
attached hereto.
C. Upon execution of this Agreement, all services previously performed by Provider on behalf
of City and included in the description of the Work shall become part of the Work and shall be
subject to the terms and conditions hereof.
D. Provider agrees and acknowledges that City is entering into this Agreement in reliance upon
Provider’s represented professional abilities with respect to performing the services, duties, and
obligations under this Agreement. Provider shall perform its services in accordance with the usual
and customary professional standards of care, skill and diligence consistent with its industry (the
“Standard of Care”). There are no obligations, commitments, or impediments of any kind known
to the Provider that will limit or prevent performance by Provider o f its services.
E. Provider shall allocate adequate time, personnel, supervision, and resources as necessary to
perform its services in an expeditious and economical manner consistent with the interest s of the
City.
F. City’s approval or acceptance of Provider’s services shall not relieve Provider of any of its
professional duties nor release Provider from any liability for negligent delivery of such services
because City is, at all times, relying upon Provider’s skill and knowledge in performing Provider’s
services. City shall have the right to reject any of Provider’s services due to any material errors or
omissions in any deliverables prepared by Provider or its consultants. Upon notice of any such
errors or omissions, Provider shall promptly provide any and all services necessary to correct or
remedy them at no additional cost to the City. Provider’s obligation to correct its errors and
omissions is in addition to, and not in substitution for, any other remedy for defective services
which City may have at law or in equity, or both.
G. Provider shall provide maintenance to the Work every 10 years three times. This shall
include any repair work or maintenance to the project from normal wear and tear.
2. TIME FOR COMMENCEMENT AND COMPLETION
It is understood that time is of the essence in the Work to be performed under this Agreement and
that Provider shall complete all authorized Work in accordance with the time for performance
described for the Work and in a minimum of time consistent with the highest custo ms, standards,
and practices of Provider’s profession. Work is to commence and will be
complete no later than 60 days thereafter.
3. PAYMENT TERMS and MAXIMUM CONTRACT SUM
A. For the satisfactory performance of the Work, City shall pay Provider an amount not to
exceed $13,000.00. City shall pay $3,000.00 as a down payment prior to the performance of the
Work and shall pay $10,000.00 upon completion.
B. Payments of the amount due to Provider will be provided by City upon receipt of invoices
which detail the dates of service and description of work performed. The invoices must be signed
by the Provider and submitted to City.
C. City makes no representations regarding the amount or type of services, if any, that
Provider will be asked to provide to City during the term(s) of this Agreement. It is expressly
understood that the City is under no obligation to request any services from Provider and no
minimum amount of work is required or contemplated by this Agreement. All service requests
will be made by the City on an as-needed basis, subject to future agreement on the scope of the
work and the fee.
4. DEFAULT AND TERMINATION
A. In the event of substantial failure by a party hereunder to perform in accordance with the
terms hereof, the other party may terminate this Agr eement upon fifteen (15) days’ written notice
of termination setting forth the nature of the failure (the termination shall not be effective if the
failure is fully cured prior to the end of the fifteen-day period), provided that said failure is
through no fault of the terminating party.
B. City may, without cause, terminate this Agreement at any time upon giving thirty (30) days’
advance notice to Provider. Upon termination pursuant to this paragraph, Provider shall be
entitled to payment of such amount as shall compensate Provider for the services satisfactorily
performed from the time of the last payment date to the termination date in accordance with this
Agreement, provided Provider shall have delivered to City a final report describing the work
completed to the date of termination. City shall not be required to reimburse Provider for any
services performed or expenses incurred after the date of the termination notice.
5. OWNERSHIP AND USE OF THE PROJECT
Provider hereby acknowledges and confirms that City shall own all right, title and interest in and
to Work (including, without limitation, the worldwide copyrights therein, including any extensions
and/or renewals thereof). City shall have the exclusive right to use and to authorize others to use
the Work and any and all portions thereof throughout the world or any part thereof in any manner
City sees fit, and to refrain from any or all of the foregoing. The payments made by City under
this Agreement is deemed to include sufficient remuneration for all Work completed. Provider
hereby waives all rights of "Droit Moral" or "Moral Rights of Authors" or any similar rights or
principles of law which you may now or later have in the Work.
6. NOTICES
Any notice required or permitted under this Agreement must be in writing, and shall be deemed to
be delivered (whether actually received or not) when deposited with the United States Postal
Service, postage prepaid, certified mail, return receipt requested, and addressed to the intended
recipient at the address set out below. Notice may also be given by regular mail, personal
delivery, courier delivery, facsimile transmission, email, or other commercially reasonably means
and will be effective when actually received. City and Provider can change their respective notice
address by sending to the other party a notice of the new address. Notices should be addressed as
follows:
City of Wichita Falls: City of Wichita Falls
Jim Dockery, Deputy City Manager
1300 7th Street
Wichita Falls, Texas 76302
Provider: Ralph Stearns
5114 Wildflower Lane
Wichita Falls, Texas 76310
7. MISCELLANEOUS
A. Provider agrees to indemnify and hold harmless City from any claim, damage,
liability, expense or loss arising out of Provider’s negligent or intentional acts or omissions
in performance under this Agreement.
B. Provider shall neither assign its rights nor delegate its duties under this Agreement without
the prior written consent of City.
C. Provider shall be an independent contractor, and neither Provider nor any employee of
Provider shall be deemed to be an agent or employee of City. As an independent contractor,
Provider will be solely responsible for determining the means and methods for performing the
services described. Provider shall observe and abide by all applicable laws and regulations,
policies and procedures, including but not limited to, those of City relative to conduct on its
premises.
D. This Agreement constitutes the sole agreement of the parties and supersedes any other oral
or written understanding or agreement. This Agreement may not be amended or otherwise
altered except upon the written agreement of both parties.
E. The validity of this Agreement and all matters pertaining to this Agreement, including but
not limited to, matters of performance, non-performance, breach, remedies, procedures, rights,
duties, and interpretation or construction, shall be governed and determined by the Constitution
and the laws of the State of Texas. Venue for any suit filed against City shall be in Wichita
County.
F. City may request a consultant to perform a criminal background check on any employee
and/or representative of Provider who conducts business pursuant to this Agreement on the
campus of City.
G. Provider shall have every employee or individual working on their behalf sign an indemnity
and hold harmless agreement with the City. See Exhibit B.
H. Provider expressly acknowledges that City is home rule municipality and nothing in this
Agreement will be construed as a waiver or relinquishment by City of its right to claim such
exemptions, privileges, and immunities as may be provided by law.
IN WITNESS WHEREOF, the parties have signed this Agreement on the date indicated below
their signatures.
City of Wichita Falls
___________________________
______________________
(Date)
(PROVIDER/COMPANY NAME)
___________________________
______________________
(Date)
EXHIBIT A
Work shall mean a mural on the eastside of the Lake W ichita Spillway as depicted
in figure 1 and figure 2. Figure 1 depicts the mural location t hat has a dimension of
50 feet wide and varies in height between 19 feet and 20 feet for a total of
approximately 950 square feet. The mural shall be a minimum of 900 square feet.
Figure 2 depicts representative illustration of the proposed mural.
Figure 1.
Figure 2.
Exhibit B
CITY OF WICHITA FALLS WAIVER, RELEASE, AND
HOLD HARMLESS AGREEMENT FOR LAKE WICHITA MURAL
In consideration of permission granted by the City of Wichita Falls (hereinafter referred to as the
“Cit y”) for allowing persons who sign this agreement to participate in the Lake Wichita Mural
Project, I agree to the following terms and conditions:
1. I certify that I am physically fit, have sufficiently prepared or trained for participation in
this activity, and have not been advised to not participate by a qualified medical
professional. I certify that there are no health-related reasons or problems which preclude
my participation in this activity.
2. I understand while participating in this activity, I may be photographed. I agree to allow
my photo, video, or film likeness to be used for any legitimate purpose by the activity
holders, producers, sponsors, organizers, and assigns.
3. I understand and agree that the City cannot indemnify me under state law.
4. Due to the nature of the activity, I agree to hold harmless the City, and all their elected or
appointed officials, officers, agents, representatives, employees, and volunteers, from any
and all liability, claims, actions, suits, judgment, damages, and costs ar ising out of or
attributed to the activity, including any injury or death and damage to or loss of property
resulting there from. This release shall bind executors, my administrators, heirs, next of
kin, successors, assigns, and me.
5. I certify that I have read this release and I have the full right, power and authority to
execute this agreement. I understand that I have given up substantial rights by signing it,
and have signed it freely and without inducement or assurance of any nature and intend it
to be a complete and unconditional release and waiver of all liability to the greatest extent
allowed by law.
6. I agree that this agreement may be executed in counterparts; each such counterpart shall
be deemed an original and when taken together with other signed counterparts, shall
constitute one signed agreement between the City and an Activity Participant.
EXECUTED this _____day of _____________________, 2017.
________________________________ ____________________________
Printed Named Signature