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Contract 50247
c � CITY SECR7TARY ' o CONTRACT NO. or ` W N ¢= U AGREEMENT BETWEEN THE CITY OF FORT WORTH y. W w AND ETTY ISH-HOROWITZ AND KEVIN SLOAN " `3 FOR REVISED PRELIMINARY DESIGN OF PUBLIC ART FOR STATE HIGHWAY 121 This Agreement is entered into this /2thday of NwM 2018,by and between the City of Fort Worth, a home-rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager, and Etty Ish-Horowitz an individual, of 4318 Gilbert Avenue, Dallas, TX, 75219, and Kevin Sloan, an individual, of 1218 W Davis St, Dallas, TX 75208. City has designated the Arts Council of Fort Worth and Tarrant County, Inc., to manage this Agreement on its behalf.The Contract Manager shall act through its designated public art project manager. WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth 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; WHEREAS, in 2004, City received the Texas Governor's Community Achievement Award ("GCAA")from the Texas Department of Transportation("TxDOT"), in the amount of$265,000.00 to be used for construction and installation of a Monument/Landscape Project on a State of Texas right-of-way, and in 2007 invited FWPA to manage the project,so that it could be an impactful and unique project that combined elements of art and landscaping; WHEREAS, in addition to the GCAA funding for Preliminary and Final Design, including engineering, construction documents and City project management costs, from the Public Art Fund is included in the Fiscal Year 2018 Annual Work Plan, adopted by the Fort Worth City Council on October 17,2017,(M&C G-19139); WHEREAS, the City, in partnership with community members, selected a site for the project in the right-of-way within Fort Worth city limits (West bound I-30 from East of Cooks Lane to West of Eastchase Parkway) and TxDOT approved the site and City subsequently entered into a Monument Agreement(October 13,2013)with TxDOT to allow for construction of the Work at this site; WHEREAS,the Artists were competitively selected through a process outlined in the Fort Worth Public Art Master Plan conducted by the Contract Manager and approved by the Fort Worth Art Commission("FWAC")on May 14,2012; WHEREAS, Artists were placed under a Preliminary Design Contract (City Secretary Contract No. 43918) dated November 27, 2012, and their preliminary design was approved by the FWAC on February 16, 2015; subsequently Artists were placed under a Final Design Contract (City Secretary Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 1 of 22 Execution Copy 2/5/18 } d r Contract No.46947) dated 8/20/15 (M&C C-27340) and under this contract developed 30%, 60% and 90%construction documents; WHEREAS, after 90% construction documents were developed, TxDOT informed the City that the previously approved I-30 site was no longer feasible due to three factors: (1) The Federal Highway Administration(FHWA) had revoked their previously approved variance for size on the project and were now requiring the project conform to TxDOT's monument guidelines, which had been waived for this project; (2) While not currently funded, TxDOT has developed a schematic for future expansion of I-30, and expansion may be expedited within the next 10 years once funds are identified; and (3) High speed rail being planned for North Texas shows the Right-Of-Way along the north side of the I-30 corridor as the preferred route; WHEREAS, a site along westbound SH 121 in the north R.O.W. median west of Maxine Street and east of Beach Street has been identified by FWPA and City staff and approved by TxDOT's North Area Office as the new location for the project; the site offers views of the downtown Fort Worth skyline and is located within the Fort Worth City Limits and will be seen by all drivers approaching downtown from the DFW Airport and points east; WHEREAS, City and Artists wish to revise the existing design for I-30 to fit the new SH 121 site, to include as many of the elements originally proposed as possible, given the new site; which may include the concrete traffic control barriers, pavers from Acme Brick, core-ten steel letters that spell out FORT WORTH and native grasses and wildflowers; WHEREAS, City and Artists wish set out the terms and conditions under which said Work shall be revised to fit the new site, and to promote the integrity of Artists' ideas and statements as represented by the Work; and NOW, THEREFORE, City and Artists, for and in consideration of the covenants and agreements hereinafter set forth,the sufficiency of which is hereby acknowledged,agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement,the following terms shall have the meanings as set forth below: 1.1. Agreement — Means and includes this agreement between the City and Artists for Revised Preliminary Design of Public Art for the Site. 1.2. Artists—Means and includes Etty Ish-Horowitz and Kevin Sloan. 1.3. City—Means the City of Fort Worth. 1.4. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant County, Inc., and/or its officers, directors,and employees. Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 2 of 22 Execution Copy 2/5/18 1.5. Effective Date — Means and includes the date represented in the first paragraph of this Agreement,which shall be the official date of execution of this Agreement. 1.6. Final Design - Means the Artists' final, proposed design of the Work for the Site,which is based upon the City-approved Revised Preliminary Design and includes, but is not limited to, all final drawings, sketches, prototypes, maquettes, models, construction documents and the like that may be created by Artists in connection with this Agreement, or the like that are related, directly or indirectly, to the Work and shall include specifications for fabrication and installation of the Work. 1.7. Parties—Means and includes City and Artists. 1.8. Revised Preliminary Design — Means all preliminary drawings, sketches, prototypes, maquettes, models, narrative descriptions, budget estimates, and the like that are created by Artists in connection with this Agreement and/or any prior agreement between Artists and City for the Work. 1.9. Revised Preliminary Design Deliverables—Means and includes those items set forth in Article 2.3 of this Agreement that Artists is required to submit to City and TxDOT for review and approval. 1.10. Project — Means and includes the capital improvement/public art development undertaking of City for which Artists' services are to be provided pursuant to this Agreement. 1.11. Project Stakeholders — Means and includes the District 4 Fort Worth City Council representative, the FWAC's appointed representative, Community Stakeholders and others as may be appropriate. 1.12. Site — Means and includes site approximately 1100 feet long and 45 feet wide along westbound SH 121 in the north R.O.W. median west of Maxine Street and east of Beach Street as identified by FWPA and City staff and approved by TxDOT's North Area Office which offers views of the downtown Fort Worth skyline and is located within the Fort Worth City Limits on the north side of SH 121 and will be seen by drivers approaching downtown from the DFW Airport and points east. 1.13. Work—Means and includes the finished object(s)of art and design that are the subject of this Agreement,or any intermediary stage of completion of such work. ARTICLE 2 SCOPE OF SERVICES 2.1. General. (a) Artists shall perform all services and will furnish all supplies and materials as necessary for developing the Revised Preliminary Design of the Work. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. (b) Artists shall determine the Artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and input from Project Stakeholders and approval by TxDOT and City as set forth in this Agreement. Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 3 of 22 Execution Copy 2/5/18 (c) Artists, upon request of Contract Manager, shall provide information and/or attend meetings with appropriate City staff and TxDOT staff for purposes of risk assessment, safety review, sighting of the Work,and permitting. (d) Artists' Revised Preliminary Design shall be feasible within the implementation budget set forth in Article 2.3. (e) The specific location at the Site where the Work will be installed shall be mutually agreed upon by TxDOT, City and Artists. (f) Artists' Revised Preliminary Design shall include renderings of the design in the new location, preliminary dimensions of the Work, appropriately scaled to size for the Site along with a budget for the Final Design phase including construction documents,engineering and Artists' fees. (g) Artists shall present the Revised Preliminary Design to TxDOT and City staff for input and to the FWAC for review, input,and approval at dates and times mutually agreed upon. (h) Artists shall then make a presentation of the Revised Preliminary Design to the community in a public meeting,at a date and time determined by the City. 2.2. City Assistance. Upon request by Artists, City shall promptly furnish all information and materials required by Artists to the extent that such materials are available. City, upon request by Artists, shall also provide correct scaled drawings of the Site, if available. 2.3. Revised Preliminary Design Deliverables. (a) Within three (3) months after the Effective Date, Artists shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Article 2.3 to City for approval. Revised Preliminary Design Deliverables shall consist of the following: i. Revised Preliminary Design illustrations showing the Work revised to fit the new SH 121 site and demonstrating two vantage points, including a plan view and an elevation, which shall be in a high resolution digital format; ii. A revised narrative description of the Artists' concept, proposed materials, fabrication, and installation methods, timeline for completion, and anticipated annual maintenance requirements; iii. Artist shall provide the City with a land survey of the Site that is prepared by a surveyor acceptable to both the City and TxDOT. iv. A Final Design budget estimate, on the budget form attached hereto as Exhibit"C," for Final Design of the Work in an amount not to exceed EIGHTY FOUR THOUSAND TWO HUNDRED SIXTY EIGHT DOLLARS AND NO CENTS ($84,268.00), reflecting total costs and inclusive of an estimated remaining Artists' fee of$23,750.00, engineering fees, construction documents, consulting and all associated costs for Final Design of the Work. Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 4 of 22 Execution Copy 2/5/18 V. Artists shall make every effort to prepare a budget for Final Design of the Work that does not exceed the amount in 2.3.i.v. and shall provide Project Manager with backup in the event the budget exceeds the target amount. vi. It is understood that the Final Design must be implementable within the $265,000.00 budget awarded by the GCAA. vii. It is understood that City Project Management and Inspection Fees are not the responsibility of the Artists and shall not be included in the Final Design budget in item 2.3.iv. 2.4. Revised Preliminary Desian Review. (a) Upon 50% completion of the Revised Preliminary Design Deliverables, Artists shall present the Revised Preliminary Design to TxDOT for review and input. (b) Upon completion of the Revised Preliminary Design Deliverables, Artists shall present the Revised Preliminary Design to the FWAC for review and approval at a regularly scheduled FWAC meeting. (c) Upon approval by the FWAC, Artists shall meet with the designated Project Stakeholders, City staff, and other City boards or commissions,as appropriate,to present the Revised Preliminary Design, at a date and time mutually agreed upon, for input. (d) City shall notify Artists of its approval, or disapproval, of the Revised Preliminary Design within thirty(30)calendar days of Artists' presentation to the FWAC. (e) If City requires any revisions to the Revised Preliminary Design, then City shall inform Artists of each revision. City may require Artists to make such revisions to the Revised Preliminary Design as City deems necessary in its sole discretion and/or for the Work to comply with applicable statutes, ordinances,or regulations of any governmental regulatory agency having jurisdiction over the Site for reasons of safety and security. (f) Artists shall have thirty (30) calendar days from the date City informed Artists of the revision(s) to present the revised Revised Preliminary Design in conformance with City's requirements. (g) If City disapproves of the resubmitted Revised Preliminary Design, any further Revised Preliminary Design resubmission will be by mutual agreement of the Parties and subject to the procedures and terms in this Article. If the Parties desire not to continue with the resubmission process, then this Agreement will automatically terminate, with payment to the Artists per the payment schedule in Article 3 up through the date of termination. (See Article 4.4.d) In such event, Artists will be compensated for any services performed and expenses incurred but not yet paid under the Payment Schedule. (h) Upon City approval of the Revised Preliminary Design, any revisions made to a City-approved Revised Preliminary Design shall become part of the Revised Preliminary Design. Artists shall incorporate any City-approved revisions into the Final Design in conformance with City's requirements. Any revisions shall become part of any Final Design deliverables if the Artists Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 5 of 22 Execution Copy 2/5/18 proceeds to the final design phase. Artists shall provide the Revised Preliminary Design presentation materials to the Contract Manager to become part of the City of Fort Worth Public Art archive owned by City. These documents, models, and/or drawings will be retained for archival and exhibition purposes. (i) Upon the expiration of the Term (hereinafter defined) of this Agreement, if the Revised Preliminary Design is accepted by City,negotiations for final design of the Work shall commence. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Total compensation to Artists under the Agreement shall be up to TWENTY ONE THOUSAND DOLLARS AND NO CENTS ($21,000.00), which shall constitute full compensation for any and all costs associated with the Agreement, including, but not limited to, surveying and consulting fees, a $16,000.00 Artists' fee, and services performed and materials furnished by Artists under this Agreement. Artists and City may amend this Agreement to allow for additional payment if additional services are required. All parties agree that payments under this Agreement shall be made to Etty Ish-Horowitz, who shall be responsible for remitting to Kevin Sloan his percentage of the Artist Fee (50% of$16,000.00 or $8,000.00 paid per installments below) and for all payments to Artists' subcontractors. City shall not be liable to Kevin Sloan for any payments under this Agreement. 3.2. Payment Schedule (a) City agrees to pay Artists in the following installments set forth below, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof: i. SIX THOUSAND DOLLARS AND NO CENTS ($6,000.00) upon execution of this Agreement. ii. SIX THOUSAND DOLLARS AND NO CENTS ($6,000.00) within thirty (30) calendar days after Artists submit all of the Revised Preliminary Design Deliverables required under Article 2.3 of this Agreement. iii. THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) within thirty (30) calendar days after Artists make a presentation of the Revised Preliminary Design to TxDOT and the F WAC pursuant to Article 2.3. iv. ONE THOUSAND DOLLARS AND NO CENTS ($1,000.00) within thirty (30) calendar days after City's approval of the Revised Preliminary Design V. Surveying and Consulting Fees in an amount un to FIVE THOUSAND DOLLARS AND NO CENTS ($5,000) shall be paid to Artists for surveying and Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 6 of 22 Execution Copy 2/5/18 consulting in order to fulfill the terms of this Agreement. Such payment shall be made upon receipt of an invoice from Artists with the original invoice (a retainer fee of up to 50%is allowed)for such services attached. 3.3. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Project. City shall supply Artists with the "Texas Certificate of Exemption," in substantially the same form as that attached hereto as Exhibit"D," for use by Artists in the fulfillment of this Agreement. 3.4. Artists' Expenses. Artists shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on submissions to City, cost of all travel, and costs for Artists' agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 4 TERM AND TERMINATION 4.1. Term. This Agreement shall be in effect from the Effective Date, and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artists by City. 4.2. Gratuities. City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or given by Artists or any agent or representative to any City or Contract Manager official or employee with a view toward securing favorable treatment with respect to the awarding, amending,or making of any determinations with respect to this performance of this Agreement. 4.3. Termination for Cause. If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this Article 4.3 in accordance with the dispute resolution process set forth in Article 5. If the Parties cannot resolve the dispute(s), then the disputing party shall thereupon have the right to terminate this Agreement upon the delivery of a written "Notice of Termination"specifying the grounds for termination. Termination of this Agreement under this provision shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. 4.4. Termination for Convenience. (a) The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted thirty(30)calendar days before termination. Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 7 of 22 Execution Copy 2/5/18 t (b) If termination is for the convenience of City,City shall pay Artists pursuant to the payment provision in Article 3, and Artists shall continue to provide the City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon payment in full of all monies due for services provided up to the effective date of termination, City shall have the right, in its sole discretion, to possession and transfer of all work product produced by Artists under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination, provided that no right to fabricate or execute the Work shall pass to City. In such event, Artists will be compensated for any services performed and expenses incurred but not yet paid under the Payment Schedule. (c) If termination is for the convenience of Artists, City shall have the right, in its sole discretion,to pay Artists pursuant to the payment provision in Article 3 or require the Artists to remit to City a sum equal to all payments (if any) made to the Artists pursuant to this Agreement prior to the effective date of termination. If City chooses to pay Artists, then all work product produced by Artists under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination shall become property of City. (d) If termination is by mutual agreement of the Parties as set forth in Article 2.4, then City shall pay Artists per the payment schedule in Article 3 up through the date of termination. City shall have the right to possession and transfer of all work product produced by Artists under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination. In such event, Artists will be compensated for any services performed and expenses incurred but not yet paid under the Payment Schedule. 4.5. Incapacity of Artists. (a) In the event of Artists' death or Artists becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artists or Artists' successors for all work and services performed prior to death or incapacity. All work product produced by Artists, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination shall become property of City. (b) Should Artists' Revised Preliminary Design have been approved, in the event of termination under this Article 4.5,City shall have the right to complete the Work, if feasible. Due regard shall be made for Artists' intended results and proper credit and acknowledgement shall be given to Artists. Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 8 of 22 Execution Copy 2/5/18 ARTICLE 5 DISPUTE RESOLUTION (a) If either Artists or City has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement,the Parties shall first attempt to resolve these issues through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach, or other matter in question that may arise out of or in connection with this Agreement. (b) If the Parties fail to resolve the dispute within sixty (60) calendar days of the date of receipt of the notice of the dispute,then the Parties shall submit the matter to mediation in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code, then in effect. Request for mediation shall be in writing, and shall request that the mediation commence not less than fifteen (15) or more than forty-five (45) calendar days following the date of request, except upon Agreement of the Parties. In the event City and Artists are unable to agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty(30)calendar days following the date of the request for mediation, then all the conditions precedent in this article shall be deemed to have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No provision of this agreement shall waive any immunity or defense. No provision of this Agreement constitutes consent to sue. If the Parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute.(See Article 4.3) ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1. General. (a)Upon payment in full to Artists or pursuant to the applicable termination provision of this Agreement, the Preliminary Design, Work, and all other work product under this Agreement shall become the physical property of City, without restriction on future use, except as provided below. Artists shall retain copyright and other intellectual property rights in and to the Revised Preliminary Design and/or Work. By execution of this Agreement,Artists grants to the City an exclusive,perpetual,royalty free, Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 9 of 22 Execution Copy 2/5/18 and irrevocable license to graphically depict and publicly display the Revised Preliminary Design and/or Work for any non-commercial purpose whatsoever, except that the Work cannot be reproduced in any three-dimensional form without permission from Artists. For purposes of this limitation, any graphic depiction or display of the Revised Preliminary Design and/or Work intended to promote or benefit City, its public services or its public purposes,regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non- commercial purpose. (b) In view of the intention that the Revised Preliminary Design and the Work be unique, Artists shall not make any additional exact duplicate reproductions of the Revised Preliminary Design or the Work,nor shall Artists grant permission to others to do so except with the express written permission of City. However, nothing herein shall prevent Artists from creating future artworks in Artists' manner and style of Artistic expression. (c) Artists reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Revised Preliminary Design and/or Work, except as those rights are limited by this Agreement. City may make and disseminate photographs, drawings, and other two-dimensional reproductions of the Revised Preliminary Design and/or Work and accompanying materials for any municipal purpose. All reproductions by the City shall contain a credit to the Artists and a copyright notice substantially in the following form: "© date, Artists' name." (d) Nothing in this Agreement shall prevent the Artists from using images of the Revised Preliminary Design and/or Work for marketing and promotional purposes in connection with the Artists' business. (e) City is not responsible for any third-party infringement of Artists' copyright and not responsible for protecting the intellectual property rights of Artists. 6.2. Artists' Address. Artists shall notify City of changes in Artists' address as set forth in Article 12. The failure to do so, if such failure prevents City from locating Artists, shall be deemed a waiver by Artists of the right subsequently to enforce these provisions that require the express approval of Artists. Notwithstanding this provision, City shall make every reasonable effort to locate Artists when matters arise relating to Artists' rights. ARTICLE 7 WARRANTIES OF TITLE AND COPYRIGHT (a) Artists represents and warrants that: L Revised Preliminary Design and/or Work shall be the original product of the Artists' sole creative efforts. Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 10 of 22 Execution Copy 2/5/18 ii. Revised Preliminary Design and/or Work is and will be unique and original, and, does not infringe upon any copyright or the rights of any person; iii. Artists has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Revised Preliminary Design and/or Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; iv. Revised Preliminary Design and/or Work (or duplicate thereof) have not been accepted for sale elsewhere; v. Artists has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement;and vi. All services performed hereunder shall be performed in accordance with all applicable laws, regulations,ordinances,etc.,and with all necessary care, skill and diligence. ARTICLE 8 ARTISTS AS INDEPENDENT CONTRACTOR Artists shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of City. Artists shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of his/her officers, agents, employees,and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artists, his/her officers, agents, employees and subcontractors, and doctrine of respondent superior has no application as between City and Artists. ARTICLE 9 INDEMNIFICATION 9.1. General Indemnity. (a) ARTISTS COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 11 of 22 Execution Copy 2/5/18 WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR OMMISSIONS OF ARTISTS AND/OR ARTISTS' SUBARTISTS AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. (b) Artists agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained or caused by Artists in connection with or incidental to performance under this Agreement. (c) Artists shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. 9.2. Intellectual Property. Artists agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third party copyrighted works by Artists. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artists without the appropriate licenses or permission being secured by Artists in advance. IT IS FURTHER AGREED THAT ARTISTS SHALL RELEASE, DEFEND, INDEMNIFY,AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artists. ARTICLE 10 EQUAL OPPORTUNITY (a) Artists shall not engage in any unlawful discrimination based on race, creed, color, national origin, sex, age, religion, disability, marital status, citizenship status, sexual orientation or any other prohibited criteria in any employment decisions relating to this Agreement, and Artists represents and warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 l2 of 22 Execution Copy 2/5/18 (b) In the event of Artists noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artists may be debarred from further agreements with City. ARTICLE 11 MISCELLANEOUS 11.1. Compliance. Artists shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the performance of Artists' services under this Agreement. 11.2. Entire Agreement. This writing embodies the entire agreement and understanding between the Parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 11.3. Amendments. No alteration, change, modification, or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. 11.4. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms,covenants, and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 11.5. Governing Law and Venue. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas—Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 11.6. Successors and Assigns. Neither party hereto shall assign, sublet, or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease, or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artists and their respective successors and permitted assigns. 11.7. No Third-Parly Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artists, and any lawful successor or assign, and are not intended to create any rights, contractual, or otherwise, to any Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 13 of 22 Execution Copy 2/5/18 other person or entity. 11.8. Severability. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality,and enforceability of the remaining provisions shall not in any way be affected or impaired. 11.9. Force Maieure. It is expressly understood and agreed by the Parties to this Agreement that, if the performance of any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather; governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots; material or labor restrictions; transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. 11.10. Contract Construction. The Parties acknowledge that each party and, if it so chooses, its counsel, have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 11.11. Fiscal Funding Out. If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement to be effective on the later of(i) thirty (30) days following delivery by City to Artists of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. Notwithstanding the above, as regards this project, City Project#c01639, funds in an amount sufficient to fulfill the terms of this contract have previously been appropriated and are available for this contract. 11.12. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 11.13. Right to Audit. Artists agrees that City will have the right to audit the financial and business records of Artists that relate to the Work (collectively "Records") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, the Artists shall make all Records available to the City at Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 14 of 22 Execution Copy 2/5/18 200 Texas Street,Fort Worth,Texas or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. Artists shall require all of its subcontractors to include in their subcontracts a right to audit in favor of City in substantially the same form as described in this Article 11.13. 11.14. Certified MWBE. If applicable, Artists is encouraged to make its best effort to become a certified Minority Business Enterprise (MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is accepted by the City under the City's Business Diversity Enterprise Ordinance. 11.15. Survival Provision. The provisions contained in Articles 4.5 (Incapacity of Artists), 6 (Ownership and Intellectual Property Rights), 7 (Warranties of Title and Copyright), 8 (Artists as an Independent Contractor), 9 (Indemnification), and 11.13 (Right to Audit) shall survive the termination or expiration of this Agreement. 11.16. Counterparts and Electronic Signatures. This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 11.17. Time Extensions. The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. ARTICLE 12 NOTICES All notices, requests, demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail,return receipt requested,postage prepaid,as follows: 1. CITY OF FORT WORTH: Assistant City Manager City Manager's Office City of Fort Worth,Fort Worth City Hall 200 Texas Street Fort Worth,TX 78102-6314 Copies to: City Attorney Office of the City Attorney City of Fort Worth,Fort Worth City Hall 200 Texas Street Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 15 of 22 Execution Copy 2/5/18 Fort worth,TX 78102-6314 Martha Peters,Vice President of Public Art Arts Council of Fort Worth&Tarrant County 1300 Gendy Street Fort Worth,Texas 76107 2. ARTISTS Etty Ish-Horowitz 4318 Gilbert Avenue Dallas,TX,75219 Kevin Sloan 1218 W Davis St Dallas,TX 75208 IN WITNESS HEREOF, the Parties hereto have executed this Agrmnent to be effective as of the Effective Date. CITY OF FORT WORTH ARTISTS Etty Ish-Horowitz Fernando Costa Etty Isb-Hom4tz Assistant City Manager Date 2'6q//8 Date: J IART!IWKev* S an Kevin Sloan Date: CONTRACT COMPLIANCE MANAGER By signing,I acknowledge that I am the person responsible for the rrlonitoring and administration of this contract,including enmririg alt pertbrmance and reporting requirements. Name:Anne Allen Title:Public Art Project Manager Afinem t with Etty4sb Horowitz and Kevin Sloan for Revised Pre imimmy Design of Public Artwork for SH 121 16 of 22 Execution Copy 2/5/18 APPROVED AS TO FORM AND LEGALITY: By: Jessica San vang Assistant i Attorney I ATTEST: � Mary Kayser City Secretary Form 1295:Not ApplicableAS Contract Authorization: M&C:Not Applicable s era, Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 17 of 22 Execution Copy 2(5(l8 Exhibit A Original Final Design for I-30 Site-To Be Revised for new SH 121 site Boom #fit ri 90%PROGRESS SET o a m»v,a — _..�" __.rEnc�•....-....._�:..__...;.- .....-..:..��_:..:.._ ,ems w,.,...............„. ,,.,, .�.�..s a ,:J:..... ,.+..�. .� �n�en ...'.`"_—` Yf #WIIM.N. r M.-•- .4.._-._.._.�.«..,. _ ......, SWUWFP W�.Ahd _______W.t�9um_»_._________.FSE•aiwGsD__'______'_^"__squ.�a-___-._____ _m___»....»_____......_"!'�';.�. ..__.._._!.__> _,.__ _ — raRwr�urt -rF..,-•— f, WTERSTAS.NOCHWA7 Ao(V�NABiE WD1N RA,W.] _. piosnoex XApL1xRr •—�-i7►*- FORT WQRTH Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 18 of 22 Execution Copy 2/5/18 Exhibit B New Site: State Highway 121 (Westbound SH 121 Right of Way,West of Maxine and East of Beach) --- s -_— iaC � i- . - •-say�r• ... FTW MOWYMENT EXHIBIT ! FOR EXHIBIT ONLY Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 19 of 22 Execution Copy 2/5/18 Exhibit C Implementation Budget FORT WORTH PUBLIC ART PROJECT BUDGET Please complete this form and attach a signed receipt or estimate complete with per unit costs(no lump sums)for all items designated with an asterisk(').Cost increases must also have a written estimate attached. ARTIST'S FEE TRAVEL (For artists who live more than 50 miles from Fat Worth) Airfare Car Rental Per Diem Expenses at S per day Mileage at S per mile INSURANCE AuWHired Vehicle Liability General Liability for Artist l Subcontractors Workers Comp.I Employees Liability Other,as applicable ADMINISTRATIVE EXPENSES Phone/Fax Delivery/Shipping(for correspondence,samples,models,drawings etc) Reprographic Service Supplies PROFESSIONAL CONSULTANT FEES (if applicable,drawing must be signed and sealed by a professional registered to practice in the State of Texas) Architect' Structural Engineer' Electrical Engineer' Conservator' Photographer(for documentation of completed workr Other' MATERIALS (Please attach a complete list of materials.Itemize all anticipated aspects and components with per unit cost estimates) Materials'Total FABRICATION COSTS (Include and itemize all portions of subcontracted work and work to be completed by artist.) Artist's Labor(_hours at$per hour)Total Subcontracted Labor'(Total) Facility/Equipment Rental(used exclusively for this project)related to fabrication SITE PREPARATION (Do not include costs covered by FWPA,City of Fort Worth or others) Test Drilling` Removal` Landscaping/Irrigation' Electrical Modifications' Water Work/Mechanical Devices Other' Ag (Revised May 2011) 18 TRANSPORTATION Materlals to Fabrication Site, Finished Work to Installation Site' Other BASEIMOUN71NG Base Mounting Devices and Components FoundaftWooting Other INSTALLATION COSTS (Costs must include allowance for alter hours installation,if applicable.Please attach a complete list of equipment and individual estimates with this form) Subcontracted Labor' ScallIdding' Equipment Rental mated to insftdatlon' Of-duty Poke/Security- Traffic Barriers' Storage Facility Rental' City Permits Display Devices Fireprodne Site Restore loW Otller' LIGHTING Designers' Fbdums• subs' Site Preparation' Installation' GRAND TOTAL Please make any necessary notes here: Prepared By: Date: (Revised May 20111 Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 21 of 22 Execution Copy 2/5/18 Exhibit D Sales Tax Exemption �anew ts.an v�•�� TEXAS SALES AND USE TAX EXEMPTION CERTIFICATION Name of pwoho er.tlrm or agency City of Fort worth,Texas Address(Sawn d n mW P.O.Bog or Route nuniW Phone(Ame code and nw"W 200 Texas Street 817392-8360 CYr,Sim.ZIP ode ._� ... Fort Worth,Texas 76102 1,the purchaser named above,claim an exemption from payment of sales and use taxes(for the purchase of taxable Items described below or on the attached order or invoice)from: Soler: AN Vendors Street address: b ay.State,ZIP code: Description of items to be purchased or on the attached order or imroice: All Items except motor vehicles as listed below Purchaser crahns this exernption for the fallowing reason: Municipality,Governmental Entity I understand that i will be We for payment of all state and local sales or use taxes which may become due for failure to comply with the provisions of the Tax Code endlor all applicable law. ►understand that N is a odminalotfenae to Ove an exemption ceiftate to are sefierfbrtaxab►e Am fhatI know,at the time ofpurchase, wNbe used In a mannerWherthan that expressedto Hf cetttfmate,anddspandfng on the amountoffax evaded,the olfensamay range from a Maes C misdemeanor to a Wony of the second degree. Putthaser Title pak here` Finance Director/CFO January 3.2017 ! NOTE: This certificate cannot be issued for the purchase.Wase,or rental of a motor vehicle. THIS CERTIFICATE DOES NOT REQUIRE A NUMBER TO BE VAUD. Sales and Use Tax*Exemption Numbers'or`rant ExenW Numbers do rat exist. This certificate shotid be tubi W to the supplier.Do not send the competed certificate to the Comptroller of Pubic Accounts. Agreement with Etty-Ish Horowitz and Kevin Sloan for Revised Preliminary Design of Public Artwork for SH 121 22 of 22 Execution Copy 2/5/18