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Contract 53438
CITY SECRETARY GON I RACT N 0 ;y° F°P�wR�11� AGREEMENT BETWEEN THE CITY OF FORT WORTH AND JULIE RICHEY MOSAICS, LLC FOR PRELIMINARY DESIGN OF PUBLIC ART FOR NORTH ANIMAL CONTROL AND SERVICE CENTER CAMPUS PUBLIC ART PROJECT This Agreement is entered into this ,atn day of January , 2020, by and between the City of Fort Worth, a home-rule municipal corporation of the State of Texas, acting by and through Dana Burghdoff, its duly authorized Interim Assistant City Manager,and Julie Richey Mosaics,LLC located at 518 West Davis Street#6, Dallas,Texas 75208,acting by and through its duly authorized manager,Julie Richey.The 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, City has completed work on a North Service Center and is designing and constructing a North Animal Control Center on a campus located at 301 Hillshire Drive,in Council District 7,utilizing funds from the 2014 Bond Program and the 2018 Bond Program; WHEREAS, City has set aside funds to design and commission public art/design enhancements in conjunction with the North Service Center and North Animal Control Center projects allocated from the 2014 Bond Program as part of the Public Art Plan for the 2014 Capital Improvement Program, adopted by the Fort Worth City Council on October 21, 2014, (M&C G-18339) and from the 2018 Bond Program as part of the Public Art Plan for the 2018 Capital Improvement Program, adopted by the Fort Worth City Council on October 16, 2018 (M&C G-19401) . The project was included in the Fort Worth Public Art Fiscal Year 2019 Annual Work Plan, adopted by the Fort Worth City Council on November 6, 2018 (M&C G-19412); WHEREAS, through an interview-based process, which was conducted by the Contract Manager, Artist was competitively recommended for this project by the artist selection panel on September 12, 2019, and this recommendation was approved by the Fort Worth Art Commission ("FWAC") on October 7, 2019; and WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be designed to promote the integrity of Artist's ideas and statements as represented by the Work. NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth,the sufficiency of which is hereby acknowledged, agree as follows: r0FF11CvA1Agreement Between the City of Fort Worth and of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork r T T ARTICLE 1 DEFINITIONS As used in this Agreement,the following terms shall have the meanings as set forth below: I.I. Agreement—Means and includes this Agreement between the City of Fort Worth and Artist for Preliminary Design of public art for the Site. 1.2. Artist—Means and includes Julie Richey Mosaics,LLC. 1.3. Artwork Design—Means and includes the Preliminary Design of the Work,which is defined in 1.3.a. below. 1.3.a. Preliminary Design — Means all preliminary drawings, sketches, prototypes, maquettes, models, narrative descriptions, budget estimates, and the like that are created by Artist in connection with this Agreement and/or any prior agreement between Artist and City for the Work. 1.4. Contract Manager—Means and includes the Arts Council of Fort Worth and Tarrant County, Inc., and its officers, directors, and employees. 1.5. City—Means and includes the City of Fort Worth,Texas. 1.6. 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. 1.7. Parties—Means and includes City and Artist. 1.8. Preliminary Design Deliverables—Means and includes those items set forth in Article 2.3 of this Agreement that Artist is required to submit to City for its review and approval prior to proceeding to the final design phase of this Project. 1.9. Project—Means and includes the capital improvement or public art development undertaking of City at the North Animal Control and Service Center Campus,for which Artist's services are to be provided pursuant to this Agreement.A project outline and additional Community Stakeholder goals,attached hereto as "Exhibit A",describe the parameters and expectations of the project. 1.10 Project Core Team—Means and includes the group of community members, generally 5-7 people, who are invited by the City Council Member to provide input on the project for its duration, in accordance with the Fort Worth Master Plan Update,page 23. 1.11. Project Stakeholders — Means and includes the appropriate City Council Member(s), the Project Core Team,the FWAC's appointed representative, and others as may be appropriate. Agreement Between the City of Fort Worth and Page 2 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork 1.12. Site—Means the North Animal Control and Service Center Campus at 301 Hillshire Drive,Fort Worth,Texas, 76052, attached hereto as"Exhibit B." 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 AND DELWERABLES 2.1. Scope of Services. a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary for developing a Preliminary Design of the Work and for providing the Preliminary Design Deliverables. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist 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 City as set forth in this Agreement. City may request changes to the Artwork Design from time to time under this Agreement, and Artist will accommodate City's requests. C. Prior to commencing the Preliminary Design, Artists shall meet with and seek input from Project Stakeholders,North Animal Control design team, and City staff. d. The location at the Site where the Work shall be installed shall be mutually agreed upon by City and Artist. e. Artist, upon request of Contract Manager, shall provide information and/or attend meetings with appropriate City staff for purposes of risk assessment, safety review, sighting of the Work, and permitting. f. Artist shall meet and coordinate with Contract Manager and others, as necessary, to explore the feasibility of integrating the Work into the Site in terms of structural support, electricity, or other infrastructure needs to support the Work. g. Artist shall present the Preliminary Design to the FWAC for joint review with the Project Core Team, other Project Stakeholders, the appropriate City staff, and for the FWAC's approval at a regularly scheduled FWAC meeting with a date and time mutually agreed upon.The Final Design shall be shared with City boards or commissions, as appropriate. 2.2. City Assistance. Upon request by Artist, City shall promptly furnish all information and materials required by Artist to the extent that such materials are available. City,upon request by Artist,shall also provide correct scaled drawings of the Site,if available. Agreement Between the City of Fort Worth and Page 3 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork 2.3. Preliminary Design Deliverables. a. Within four(4)months after the Effective Date,Artist 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. Preliminary Design Deliverables shall consist of the following: i. Detailed, design illustrations for the Work for the Site, which shall be in a high-resolution digital format, such as JPEG or TIF files, showing the proposed Work from multiple vantage points with at least one illustration showing the Work's size and placement in relation to the Site; ii. A narrative description of the Artist's concept,proposed materials,fabrication,and installation methods, timeline for completion and maintenance, and anticipated annual maintenance requirements; iii. A preliminary budget estimate, on the budget form attached hereto as Exhibit "C," for final design and implementation of the Work in an amount up to $277,176.00 which includes all costs for materials, engineering, labor, fabrication, delivery, installation, insurance (City requirements attached hereto as Exhibit "D"), travel costs, transportation, remaining Artist's fee of$34,486.00 and all other associated costs for the Work; and iv. Artist shall provide the Preliminary Design presentation materials in PowerPoint format to the Contract Manager to become part of the City of Fort Worth Public Art archive owned by City. All documents,models,and/or drawings will be retained for archival and exhibition purposes. b. Preliminary Design Deliverables shall be submitted to the Contract Manager two (2) weeks prior to the scheduled Preliminary Design presentation for staff review. 2.4. Preliminary Design Review. a. Upon completion and submission of the Preliminary Design Deliverables and acceptance by Contract Manager, Artist shall present the Preliminary Design to the FWAC for joint review with the Project Core Team, other Project Stakeholders, the appropriate City staff, and for the FWAC's approval at a regularly scheduled FWAC meeting with a date and time mutually agreed upon. b. City shall notify Artist of its approval, or disapproval, of the Preliminary Design within thirty (30) business days of Artist's presentation to the FWAC. C. If City disapproves of the Preliminary Design, either in whole or in part,then City shall inform Artist of each revision to be made to the Preliminary Design. City may require Artist to make such revisions to the 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. Agreement Between the City of Fort Worth and Page 4 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork d. Artist shall have thirty (30) calendar days from the date City informed Artist of the revision(s) to present the revised Preliminary Design in conformance with City's requirements. e. If City disapproves of the resubmitted Preliminary Design, any further Preliminary Design resubmissions 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 for work performed per the payment schedule in Article 3 up through the date of termination. (See Article 4.4.d) f. Upon City approval of the Preliminary Design, any revisions made to a City-approved Preliminary Design shall become part of the Preliminary Design. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Total compensation to Artist under the Agreement shall be in an amount up to SIXTEEN THOUSAND, SEVEN HUNDRED, EIGHTY DOLLARS AND NO CENTS ($16,780.00) which shall constitute full compensation for any and all costs associated with the Agreement, including, but not limited to engineering and consulting,travel (see Section 2.1(1)), an Artist's fee of$14,780.00,and all other services performed and materials furnished by Artist under this Agreement. Artist and City may amend this Agreement to allow for additional payment if additional services are required. 3.2. Payment Schedule. a. City agrees to pay Artist 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. TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) upon execution of this Agreement. ii. THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) within thirty (30) calendar days after Artist meets with North Animal Control design team, Project Core Team, and other stakeholders to gather input prior to Preliminary Design development. Ili. FIVE THOUSAND DOLLARS AND NO CENTS ($5,000.00) within thirty (30) calendar days after Artist submits all of the Preliminary Design Deliverables required under Article 2.3 of this Agreement. iv. THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) within thirty (30) calendar days after Artist makes a presentation(s) of the Preliminary Design to the FWAC, the Project Core Team,and other Project Stakeholders. Agreement Between the City of Fort Worth and Page 5 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork V. ONE THOUSAND, SEVEN HUNDRED, EIGHTY DOLLARS AND NO CENTS ($1,780.00)within thirty(30)calendar days after City's approval of the Preliminary Design. vi. An engineering allowance of up to TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00)for preliminary consultation as needed. Such payment shall be made upon receipt of an invoice from Artist 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 Artist with the"Texas Certificate of Exemption," in substantially the same form as that attached hereto as Exhibit"E"for use by Artist in the fulfillment of this Agreement. 3.4. Artist's Expenses. Artist 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 and/or Contract Manager, cost of all travel, and costs for Artist's 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 Artist 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 Artist 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. Agreement Between the City of Fort Worth and Page 6 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork 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. b. If the termination is for the convenience of City,City shall pay Artist for services actually rendered up to the effective date of termination in accordance with Section 3.2 of this Agreement, and Artist 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 Artist 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. C. If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to pay Artist for services actually rendered up to the effective date of termination in accordance with Section 3.2 of this Agreement or require the Artist to remit to City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to the effective date of termination. If City chooses to pay Artist for services actually rendered, then all work product produced by Artist 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 Artist for work performed in accordance with Section 3.2 of this Agreement up through the date of termination. City shall have the right to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs,models, and designs, up to the effective date of termination. 4.5. Incapacity of Artist. a. In the event of Artist's death or Artist becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to death or incapacity. All work product produced by Artist, 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 Artist's 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 Artist's intended results and proper credit and acknowledgement shall be given to Artist. Agreement Between the City of Fort Worth and Page 7 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork ARTICLE 5 DISPUTE RESOLUTION If either Artist 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 parry's specific reasons for such dispute. Within ten(10)business days of receipt of the notice,both parties shall make a g?od 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. 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 may submit the matter to non-binding mediation upon written consent of the authorized representatives of both parties 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 Artist or pursuant to the applicable termination provision of this Agreement, the Artwork Design,Work,and all other work product under this Agreement shall become the property of City,without restriction on future use,except as provided below. Artist shall retain copyright and other intellectual property rights in and to the Artwork Design and/or Work. By execution of this Agreement, Artist grants to the City an exclusive, perpetual, royalty free, and irrevocable license to graphically depict or publicly display the Artwork Design and/or Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Design and/or Work intended to promote or benefit City, its public services or its public purposes, Agreement Between the City of Fort Worth and Page 8 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork 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 Artwork Design and the Work be unique, Artist shall not make any additional exact duplicate reproductions of the Artwork Design or the Work, nor shall Artist grant permission to others to do so except with the express written permission of City. However, nothing herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic expression. C. Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Artwork 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 Artwork Design and/or Work and accompanying materials for any municipal purpose. All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: "©date, Artist's name." d. Nothing in this Agreement shall prevent the Artist from using images of the Artwork Design and/or Work for marketing and promotional purposes in connection with the Artist's business. e. City is not responsible for any third-party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist 6.2. Artist's Address. Artist shall notify City of changes in Artist's address as set forth in Article 12. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions that require the express approval of Artist. Notwithstanding this provision,City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights. ARTICLE 7 WARRANTIES OF TITLE AND COPYRIGHT a. Artist represents and warrants that: i. Artwork Design and/or Work shall be the original product of the Artist's sole creative efforts. ii. Artwork 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. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork Design and/or Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; iv. Artwork Design and/or Work(or duplicate thereof)have not been accepted for sale elsewhere; V. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and Agreement Between the City of Fort Worth and Page 9 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork 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 ARTIST AS INDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor,and not as an officer, agent,servant or employee of City.Artist 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 Artist,his/her officers,agents,employees and subcontractors,and doctrine of respondent superior has no application as between City and Artist. ARTICLE 9 INDEMNIFICATION 9.1. General Indemnity. a. ARTIST 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 HIND 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, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR OMMISSIONS OF ARTIST AND/OR ARTIST'S 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. Artist 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 Artist in connection with or incidental to performance under this Agreement. Agreement Between the City of Fort Worth and Page 10 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork C. Artist 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. Artist 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 Artist. 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 Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER AGREED THAT ARTIST 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 Artist. ARTICLE 10 EQUAL OPPORTUNITY a. Artist 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 Artist 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. b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled,terminated,or suspended in whole or in part,and Artist may be debarred from further agreements with City. ARTICLE I MISCELLANEOUS 11.1. Compliance. Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the performance of Artist's services under this Agreement. Agreement Between the City of Fort Worth and Page 1 1 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork 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 Artist and their respective successors and permitted assigns. 11.7. No Third-Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights,contractual, or otherwise,to any 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 Majeure. 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, Agreement Between the City of Fort Worth and Page 12 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork 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 Artist 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. 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. Artist agrees that City will have the right to audit the financial and business records of Artist 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 Artist shall make all Records available to the City at 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. Artist 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 MBE/WBE. If applicable, Artist 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. Agreement Between the City of Fort Worth and Page 13 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork 11.15. Survival Provision. The provisions contained in Articles 4.5(Incapacity of Artist),Articles 6(Ownership and Intellectual Property Rights), 7 (Warranties of Title and Copyright), 8 (Artist 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. 11.18. Israel. If Artist is a company with ten(10)or more full-time employees and if this Agreement is for$100,000 or more, Artist acknowledges that in accordance with Chapter 2270 of the Texas Government Code, the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1)does not boycott Israel;and(2)will not boycott Israel during the term of the contract. The terms"boycott Israel"and"company"shall have the meanings ascribed to those terms in Section 909.001 of the Texas Government Code. If applicable under this Agreement and Artist is considered a "company," by signing this contract, Artist certifies that Artist's signature provides written verification to the City that Artist:(1)does not boycott Israel;and(2)will not boycott Israel during the term of the Agreement. 11.19. Publicity. For the duration of the Agreement,if Artist intends to seek its own publicity for the Work, such efforts and/or press releases must be approved,in advance,by City. 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: Dana Burghdoff,Interim Assistant City Manager City Manager's Office City of Fort Worth 200 Texas Street,Third Floor Fort Worth,Texas 76102 Agreement Between the City of Fort Worth and Page 14 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork Copies to: Sarah Fullenwider,City Attorney Office of the City Attorney City of Fort Worth 200 Texas Street,Third Floor Fort Worth,Texas 76102 Martha Peters,Director of Public Art Arts Council of Fort Worth&Tarrant County 1300 Gendy Street Fort Worth,Texas 76107 2. ARTIST Julie Richey Mosaics, LLC Julie Richey 518 West Davis Street#6 Dallas,Texas 75208 IN WITNESS HEREOF,the Parties hereto have executed this Agreement to be effective as of the Effective Date. CITY OF FORT WORTH Julie Richey Mosaics,LLC by: C..,Z by: pafka fie€€ Julie Riche Assistant City Manager Manager Contract Compliance Manager By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including en uring al performance a reporting requirements. Name. Ali a La be Title: Public Art Project and Capital Budget Manager APPROVED AS TO FORM AND LEGALITY: Matthew Murray Assistant City Attorney Form 1295: Not required Contract Authorization: n C—No M&C Required ATTESTED BY: � Mary J. ayser t�1 City Secretary .; OFMCIAL RECGR UTY SECRETARY FT. WORTHF'TX Agreement Between the City of Fort Worth and Page 15 of23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork Exhibit A: Project Outline (Combined) North Animal Control and Field Operations Services Facilities Public Art Proiect Outline 1 Ilk Al .k North Animal Control Center iL North Field Operations Facility and Animal Control Center Campus BACKGROUND AND HISTORY The North Field Operations Services Facility and the Second Animal Control Center projects were identified in the Public Art Plan for the 2014 Bond Program as a locations for public art;however,only design funds for the Second Animal Control Center were included. Funds to construct the Animal Control Center were included in the 2018 Bond, and the project was included in the Public Art Plan for the 2018 Bond Program. The City constructed the new North Field Operations Facility to house Transportation/Public Works field operations crews and Equipment Services maintenance staff,along with a public drop-off center for residents disposing of household goods. The City is currently designing the North Animal Control Center for the site adjacent to the North Service Facility. Public art funds for both facilities are being combined to create more impactful artwork within the City's campus. PUBLIC ART BUDGET For the North Field Operations Services Facility and the Second (North)Animal Control Center, the PublicArt Plan for the 2014 Bond Program designated $141,800 in 2% public art funds. The Public Art Plan for the 2018 Bond Program, designated $270,000 in 2% public art funds for the North Animal Control Center. The total project budget for the campus is $411,800, including project management costs and contingencies. The project was included in the Fort Worth Public Art Fiscal Year 2019 Annual Work Plan and Budget; which was adopted by the Fort Worth City Council on November 6, 2018(M&C G-19412). PUBLIC ART SITE AND APPROACH The North Field Operations Services Facility, Drop off Center, and Animal Control Center are/will be located in far north Fort Worth,just north of Highway 287, near the intersection of East Bonds Ranch Road and Blue Agreement Between the City of Fort Worth and Page 16 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork Mound Road. The area is sparsely developed with residential neighborhoods,and the facility will be adjacent to the back side of an anticipated new retail development. Public access to the service center site will be limited to a public entry area and refuse drop-off area; however,the public will have access to the majority of the North Animal Control Center grounds and buildings. At their meeting on April 11, 2019,the Project Core Team discussed their interest in artwork that may serve as a way-finding element, helping citizens find the location and understand the purpose of the campus. Though the artwork could be comprised of multiple pieces, they shared the desire for a component of the artwork to be highly visible from the main entry. PROJECT CORE TEAM Jeffrey Bass, Bonds Ranch Dave Fancher,Tehama Ridge HOA Diana Mudwilder, Dorado Ranch HOA Cynde Rodriguez, Copper Creek HOA ARTIST SELECTION PROCESS SELECTION PANEL MEETING#1 FWPA staff shall present a pool of 5-10 qualified Texas-based artists from the Fort Worth Public Art Pre- Qualified List of Artists. Artists will be contacted prior to being considered by the Artist Selection Panel, to ascertain their interest and availability. The Artist Selection Panel shall review the artists' qualifications and select 3 finalists and one alternate. Upon selecting the finalists, the Artist Selection Panel will recommend whether the finalists should be invited to create o conceptual proposal prior to the second Selection Panel meeting. ARTIST ORIENTATION The artist/finalists shall participate in an orientation on site, if possible, prior to Selection Panel Meeting#2 to be further familiarized with contextual surroundings. The Artist Selection Panel and Project Core Team shall be invited to participate in the orientation. SELECTION PANEL MEETING#2 The Artist Selection Panel shall interview the three artist/finalists individually at this meeting and will be asked to address a series of questions about how they would approach the project. Alternatively, if the artist/finalists have been asked to develop conceptual proposals, they will present them to the Artist Selection Panel and answer questions. After discussion, the panel will then recommend one artist and one alternate for the project. Upon the FWAC's approval of the Panel's recommendation, a design contract will be executed with the selected artist. ARTIST SELECTION PANEL(Voting) 1. Diana Mudwilder, Elected Project Core Team Member 2. Cynde Rodriguez, Elected Project Core Team Member 3. Sheila Hill, Fort Worth Art Commissioner 4. TBD,Arts Professional/Design Team Member 5. TBD, Local Artist ADVISORS(Non-voting) 1. Mayor Pro Tern Dennis Shingleton, Council District 7 2. Tim Morton, Code Compliance Dept./Animal Control, City of Fort Worth Agreement Between the City of Fort Worth and Page 17 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork 3. Ronnie Clements,Architectural Services, City of Fort Worth 4. Others as may be appropriate TIMELINE (Subject to change) Project Core Team Orientation March 27, 2019 Project Outline Approved May 13, 2019 Selection Panel Meeting#1 Early June 2019 Selection Panel Meeting#2 (interviews) Late June 2019 FWAC approval July 2019 Preliminary Design Contract execution with artist July 2019 NOTE: Since Project Outline approval, Community Stakeholders have held additional discussions and added the following goals for the artwork: • The artwork should be engaging to visitors and interactive in some way • Rather than serve only as a wayfinding element,the work shall be located within and possibly throughout the Animal Control campus in publicly accessible pedestrian areas. • It is encouraged for the work to have conceptual depth and not be solely representational work featuring dogs and/or cats. Agreement Between the City of Fort Worth and Page 18 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork Exhibit B: Site 301 Hillsbire Drive, Fort Worth, TX 76052 REGIONAL MAP MW Uftind as w a M Bar&R Rd W 1Ndr Rd Alliance Town Center P SITE PLAN J I V 1 a-A Agreement Between the City of Fort Worth and Page 19 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork � w Exhibit C: Budget Form PROJECT BUDGET ARTIST PROJECT DEVELOPMENT COSTS COSTS FEES INSTALLATION Artist design fee Transportation Professional fees Permits Engineer Site preparation/remediation Architect Footings I foundations Lighting Designer Electrical Connections/modifications Conservator Labor Other Equipment rental SUB-TOTAL FEES Traffic co�trol Security TRAVEL SUS-TO*INSTALLATION Transporation Lodging Per diem(meals and incidentals) OVERHEAD SUB-TOTAL TRAVEL insurance(prorated) Studio asd=nt(hours x$per hour) FABRICATION SUB-TOTAL OVERHEAD Artist administration(hours x$per hour) Materials CONTINGENCY Artist labor(hours x$per hour) Labor --- --- -— -- --- -- --- GRAND TOTAL ARTIST Rentals(equipment,space,etc.) PROJECT COSTS Storage SUB-TOTAL FABRICATION Agreement Between the City of Fort Worth and Page 20 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork Exhibit D: Insurance Requirements PUBLIC ART PROJECTS -INSURANCE REQUIREMENTS Artist shall meet all the following insurance requirements for this Project. If Artist subcontracts fabrication, transportation, and/or installation of the Work, then Artist shall also require his/her subcontractor(s) to abide by all of the following insurance requirements. Commercial General Liability(CGL) $1,000,000 Each occurrence $2,000,000 Aggregate limit Coverage shall include, but not be limited to, the following: premises, operations, independent contractors, products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an occurrence basis, and be as comprehensive as the current Insurance Services Office (ISO) policy. The policy shall name City as an additional insured. Bailee's/Property(if applicable) The inland marine policy shall provide per occurrence coverage at replacement cost value based on the latest appraised value of the Artwork, which is entrusted to the Artist and is considered to be in the Artist's care, custody, and control and shall include property"in transit." Automobile Liability $1,000,000 Each accident or $250,000 Bodily Injury per person $500,000 Bodily Injury per occurrence $100,000 Property Damage A commercial business policy shall provide coverage on"Any Auto," defined as autos owned, hired and non- owned. For Artist and/or Artist's Subcontractors who have employees: Workers'Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease-per each employee $500,000 Bodily Injury/Disease-policy limit Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas workers' Compensation Act(Art. 8308 1.01 et seq. Tex. Rev. Civ. Stat.). Agreement Between the City of Fort Worth and Page 21 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork GENERAL POLICY REQUIREMENTS The certificate of insurance shall include an endorsement naming the City of Fort Worth, its' Officers, Employees and Volunteers as an "Additional Insured" on all liability policies. Exception: the additional insured requirement does not apply to Workers' Compensation or Automobile policies. Artist is responsible for providing the City a thirty day (30) notice of cancellation or non-renewal of any insurance policy and may not change the terms and conditions of any policy that would limit the scope or coverage, or otherwise alter or disallow coverage as required herein. The workers' compensation policy shall include a Waiver of Subrogation(Right of Recovery) in favor of the City of Fort Worth. The insurers for all policies must be licensed/approved to do business in the State of Texas. If the subcontractor is an international entity and carries insurance through an international insurance company, then the subcontractor must obtain language on their certificate of insurance confirming that its insurance policy extends coverage to operations in the United States. All insurers must have a minimum rating of A- VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. Unless otherwise stated,all required insurance shall be written on an"occurrence basis." The deductible or self-insured retention(SIR)affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of City of Fort Worth in regards to asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups, must also approved by City's Risk Manager. City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by City based upon changes in statutory law,court decision or the claims history of the industry as well as of the contracting party to City of Fort Worth. City shall be required to provide prior notice of ninety days. City shall be entitled,upon request and without expense,to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. Agreement Between the City of Fort Worth and Page 22 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork Exhibit E: Sales Tax Exemption 4 k'(R.4.712; Texas Sales and Use Tax Exemption Certification This certificate does not require a number to be valid. Narre of purchaser,Arm cragency City of Fort Worth,Texas Address(Street d rumor.P.O.Box a Route number) Phone(Ana code andnumbeQ 200 Texas Street 817392-8360 City.state,ZIP rode Fort Worth,Texas 76102 t,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: Seller: All Vendors Street address: City,State,ZIP code: Description of items to be purchased or on the attached order or invoice: All items. Purchaser acknowledges that this Certificate cannot be used for the purchase,lease or rental of a motor vehicle. Purchaser claims this exemption for the following reason: Municipality,Govemmental Entity I understand that I will be liable for payment of all state and local sales or use taxes which may become due for fadure to comply with the provisions of the Tax Code and/or all applicable law. I understandthatitis a criminal offense togive an exemption certificate to thesePerfortaxable items thati know,atthe time ofpurchase, Millie used in amannerotherthan that expressed in thiscertificate,anddependingonthe amount oftax evaded,the offense may range from a Class C misdemeanor to a felony of the second degree. Purcha 'Mie Dae eho f Finance Director/CFO S-,sru q 2 1018 NOTE This certificate cannot be issued for the purchase,lease,or rental of a motor vehicle. THIS CERTIFICATE DOES NOTREQUIRE A NUMBER TO BE VALID. Sates and Use Tax`Exemption Numbers"or'Tax Exempr'Numbers do not exist. This certificate should be furnished to the supplier. Do BpA send the completed certificate to the Comptroller of Public Accounts. Agreement Between the City of Fort Worth and Page 23 of 23 Julie Richey Mosaics,LLC for Preliminary Design of Public Artwork