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HomeMy WebLinkAboutContract 39997FJ Ilk `k 1 • �// / AGREEMENT FOR FINAL DESIGN OF PUBLIC ART WORK FOR THE WEST SIDE WATER TREATMENT FACILITY AGREEMENT BETWEEN THE CITY OF FORT WORTH AND JULIE LAZARUS This Agreement is entered into this day of 2010, by and between the CITY OF FORT WORTH, a home rule municipal corporation, of the State of Texas (the "City") acting by and through Fernando Costa, its duly authorized Assistant City Manager, and JULIE LAZARUS (the "Artist") of 3955 Altura Court, Fort Worth, TX 76109. The City has designated the ARTS COUNCIL OF FORT WORTH AND TARRANT COUNTY, INC. (the "Contract Managers") to manage this AGREEMENT on its behalf. The Contract Managers shall act through Anne Allen, its designated Public Art Project Manager. WHEREAS, the City is implementing the Fort Worth Public Art Program pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances he "City Code"), in order 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, the City is designing and constructing a new Westside Water Treatment Plant on Old Weatherford Road near Chapel Creek Boulevard (the "Project"), just outside of the city limits, as shown on the map attached herein as Exhibit "A" (the "Site"); WHEREAS, the plant, designed by CDM and Komatsu Architects, will use cutting edge membrane technology coupled with conventional treatment standards to produce high quality drinking water to keep up with the demands of the rapidly growing city, in a 50,000 — 60,000 square foot administration building that will welcome tour groups and visitors with an open two-story height lobby with a glass curtain wall and slate floors; 1 OFFICIAL RECORD CITY SECRETARY FT, WORTH, TX WHEREAS, the City desires to include public art in the Westside Water Treatment Plant to enhance visitors' and staffs' experience of the facility; WHEREAS, the Fort Worth Art Commission ("FWAC") has recommended funds from the Specially Funded Capital Projects Fund in its Fiscal Year 2010 Annual Work Plan to design and implement public art for the Westside Water Treatment Plant (the "Work"), which City Council approved on October 6, 2009 (M&C G-16725); WHEREAS, the Artist was competitively selected through a process outlined in the Fort Worth Public Art Master Plan conducted by the Contract Manager with oversight of the FWAC; WHEREAS, the City and the Artist acknowledge that the Artist's Conceptual Proposal (the "Conceptual Proposal"), attached hereto as Exhibit "B," has been reviewed by the Artist Selection Panel and by the FWAC as the basis for executing this Agreement with the Artist; WHEREAS, the FWAC has recommended that the Artist be retained to develop a Final Design for public artwork to be incorporated into the Westside Water Treatment Plant, in association with the City of Fort Worth's Water Department; and WHEREAS, the City and the Artist wish to set out the terms and conditions for the Artist's participation in the project, including consultation with the City's project consultants, CDM and Komatsu Architects (the "Project Consultants"). NOW, THEREFORE, the City and the Artist for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: 2 ARTICLE 1 SCOPE OF SERVICES AND DELIVERABLES 1.1 Scope of Services. a. The Artist, in consultation with the Project Consultants, shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and acceptance by the City as set forth in this Agreement. b. The Artist shall perform all services and will furnish all supplies and materials as necessary for developing a Final Design for the Work at the Site ("Final Design"). Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. c. Artist shall meet and coordinate with the Project Consultants to ensure proper integration of the Work into the Site and into the construction documents, as may be necessary. d. Artist shall consult with a qualified art conservator and shall provide written maintenance recommendations for the sculpture from said conservator to the Contract Manager. e. Artist shall present the Final Design to the designated community stakeholder's group, City Council Member, and City Officials for input. Artist shall also present the Final Design to the FWAC for review and approval at dates and times mutually agreed upon. 1.2 Final Design Deliverables a. Within four (4) months after the execution of this Agreement, the Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Section 1.2.a.i.—iv. (collectively, the "Final Design ) eliverables") to the City for approval. Final Design Deliverables shall consist of the following: i. Detailed, design illustrations of the Work for the Site; these illustrations shall be at least 20" x 30" and mounted on foam core and/or in a high resolution digital format, such as JPEG or TIF files; Artist shall provide a final written narrative describing the following items: (1) Final Design concepts and timeline for completion; (2) Proposed 3 materials, fabrication, and installation methods for all elements of the Work; (3) Maintenance requirements for all elements of the Work as dictated by the Artist along with cost estimates for annual maintenance; and (4) Proposed public education program(s) to be conducted by the Artist during the commission phase of the artwork; ii. The Artist shall provide comprehensive working drawings, detailing the means of installing all elements of the Work on the Site (interior artwork and exterior tile mosaic artwork), together with other such graphic material as may be requested by the City in order to permit the City to carry out structural and electrical design review. These drawings must be signed and stamped by an engineer and/or architect licensed to work in the State of Texas as required by the City. The Artist will obtain and furnish to the City certificates of professional liability insurance from each such licensed professional and will require the City to be named as a "certificate holder" entitled to notice of cancellation/nonrenewal in accordance with standard practices. The Artist shall not be liable for the use of the drawings submitted under Section 1.2.a.iii. for any use other than the Final Design. iv. Artist shall provide a final budget for the Work with written estimates attached for supplies and services to be provided by Artist and/or Artist's subcontractor or the General Contractor, in an amount not to exceed $115,432. b. Upon completion of the Final Design Deliverables, the Artist shall meet with the City officials and community stakeholders, as appropriate, to present the Final Design, at a date and time mutually agreed upon, for input. c. Artist shall present the Final Design to the FWAC for approval at regularly scheduled meetings. d. Upon approval, Artist shall provide the Final Design presentation materials to the Contract Manager to become part of the City's Public Art archive. e. Upon request by the Artist, the City, the Project Consultant, and/or project manager shall promptly furnish all information, materials, and assistance required by the Artist in connection with said submission to the extent such materials are available. The City, upon request, shall also provide correct scaled drawings of the Site, if available. 0 f. 1.3. Implementation Budget Total. Artist shall develop a Final Design that is financially feasible relative to the budget for implementation. It is understood that the budget for implementation of the Final Design is estimated at ONE HUNDRED FIFTEEN THOUSAND FOUR HUNDRED THIRTY TWO DOLLARS AND NO CENTS ($115,432) including materials, labor, fabrication, delivery, installation, insurance, transportation, travel and all associated costs for the Work, as well as a fixed artist's fee (less Artist's fees and engineering fees paid under this contract). Artist shall provide a detailed budget, on the budget form attached hereto as Exhibit "C", for implementation of the Work through an Artwork Commission Contract with the City, which contract is subject to the approval of City Council. 1.4. Design Review. a. The City may require the Artist to make such revisions to the Final Design as are necessary for the Work to comply with applicable statutes, ordinances or regulations of any governmental regulatory agency having jurisdiction over the Final Design Site for reasons of safety and security. b. The City may also require the Artist to make such revisions to the Final Design as the City deems necessary in its sole discretion. c. Within thirty (30) days of its receipt of the Artist's submission of the Final Design, the City shall notify the Artist of its approval, or disapproval, of such submission and of each revision made in the Final Design. Revisions made pursuant to this Section 1.4, upon approval by the City, shall become part of the Final Design. d. If the Final Design or any required revision is disapproved by the City, the Artist shall have a reasonable amount of time to resubmit the Final Design in conformance with the City's requirement. e. If resubmitted materials are not approved by the City, this Agreement may be terminated at the City's option, with payment for work performed per the payment schedule in Section 2.1. £ Upon the expiration of the Term (hereinafter defined in Section 3.1) of this Agreement, if the Final Design is accepted by the City and funding is approved by City Council, negotiations for fabrication, delivery, and installation of the Work shall commence, which shall become part of the deliverables under the subsequent Artwork Commission Contract. 5 ARTICLE 2 COMPENSATION AND PAYMENT SCHEDULE 2.1. Fee. The City shall pay the Artist a fee not to exceed THIRTEEN THOUSAND THREE HUNDRED TWELVE DOLLARS AND NO CENTS ($13,312.00), which includes a fixed Artist's fee of TEN THOUSAND THREE HUNDRED TWELVE DOLLARS AND NO CENTS ($10,312.00) inclusive of incidental costs and all travel expenses (the 'Artists' Fee") and an amount not to exceed THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) for engineering and consulting fees (the "Engineering and Consulting Fees"), which shall constitute full compensation for all services and materials to be performed and furnished by the Artist under this Agreement, including engineering and consulting fees as provided below. The Artist's Fee shall be paid in the following installments, expressed as portions of the Artist's Fee, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof. The Artist's Fee shall be paid as follows: a. Four Thousand Dollars and No Cents ($4,000.00) upon execution of this Agreement, recognizing that the Artist has already invested time and expense in preliminary design team coordination with the Project Consultants and the City. b. Five Thousand Dollars and No Cents ($5,000.00) within thirty (30) days after the Artist submits "Final Design Deliverables," as required in Section 1.2.a. i-iv. of this Agreement and makes a presentation of the Final Design to the FWAC. c. One Thousand Three Hundred Twelve Dollars and No Cents ($1,312.00) within thirty (30) days after the City's approval of the Final Design. The Engineering and Consulting Fees in an amount not to exceed Three Thousand Dollars and No Cents ($3,000) shall be paid to the Artist for engineering fees and a conservator's consultation in order to fulfill the terms of this Agreement. Such payment 6 shall be made upon receipt of an invoice from the Artist with the original invoice (a retainer fee of up to 50% is allowed) for such services attached. 2.2. Sales Taxes. The City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Project. The City shall supply the Artist with the "Texas Sales Tax and Local Sales Tax Exemption Certificate" in substantially the same form as that attached hereto as Exhibit "D" for use by the Artist in the fulfillment of this Agreement. 2.3. Artist's Expenses. The 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 the City, 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 3 TERM AND TERMINATION 3.1. Term. This Agreement shall be in effect from the date stated in the first paragraph of this Agreement, and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to the Artist by the City, whichever is later. 3.2. Gratuities. The City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or given by the 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. 7 3.3. Termination for Cause. If either party to this Agreement shall willfully or negligently fail to fulfill in a timely and proper manner, or otherwise violate, any of the covenants, agreements, or stipulations material to this Agreement, the other party shall thereupon have the right to terminate this Agreement by giving written notice to the defaulting party of the intent to terminate, specifying the grounds for termination. The defaulting party shall have thirty (30) days after receipt of the notice to cure the default. If the default is not cured, then this Agreement shall terminate. Termination of this Agreement under this provision shall not relieve the parry in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. 3.4. 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) days before termination. The notice shall specify whether the termination is for convenience or cause. b. If the termination is for the convenience of the City, the Artist shall have the right to fees for work performed, in which event the City shall have the right at its discretion to possession and transfer of title to the sketches, designs, and models already prepared and submitted or presented for submission to the City by the Artist under this Agreement prior to the date of termination, provided that no right to fabricate or execute the Work shall pass to City. termination is for the convenience of the Artist, the Artist shall remit to the City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to termination. 3.5. Incapacity of Artist. a. In the event of the Artist's death or the Artist becoming physically or legally incapacitated during the term of this Agreement, the City shall have the right to terminate this Agreement on payment to the Artist or the Artist's successors for all work and services performed prior to death or incapacity. All finished and unfinished drawings, sketches, photographs, models, and work shall become property of City. b. Should the Artist's design have been approved or if the Artist's work has progressed to the point of fabrication of the Work, in the event of termination under this Section 3.5, the City shall have the right to complete the Work. Due regard shall be made for the Artist's intended results and proper credit and acknowledgement shall be given to Artist. ARTICLE 4 REPRODUCTION RIGHTS 4.1 General a. Upon payment in full to the Artist, the Artist's Final Design, the Work, and all other work product under this Agreement shall become property of the City, without restriction on future use, except as provided below. The Artist shall retain copyright and other intellectual property rights in and to the Final Design and/or the Work. By execution of this Agreement, the Artist grants to the City a perpetual, irrevocable license to graphically depict or display Final Design and the Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of Final Design or the Work intended to promote or benefit the 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 the City, shall be deemed a non-commercial purpose. Notwithstanding the above limitation, the Artist agrees and understands that nothing in this paragraph shall affect or limit the City's absolute, unrestricted rights incidental to the City's full ownership of the final artwork to alter, change, modify, destroy, remove, move, replace, operate, maintain, transport, sell or transfer, in whole or in part, the final artwork when the City deems it necessary within its discretion, in order to otherwise exercise the City's powers and responsibility in regard to public works and improvements, in furtherance of the City's operations or for any other reason. The City agrees to credit the Artist as the creator and copyright holder when it graphically depicts or displays the Work. b. The City shall take title to all documents and/or drawings, which constitute or are components of the Conceptual Proposal and/or the Final Design, upon final approval of 0 the Final Design. These documents and/or drawings will be retained for archival and exhibition purposes. c. The Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Conceptual Proposal and/or the Final Design, except as those rights are limited by this Agreement. The City may make and disseminate photographs, drawings, and other two-dimensional reproductions of the Conceptual Proposal and the Final Design 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 Final Design or the Work for marketing and promotional purposes in connection with Artist's business, provided, however, that the Artist shall make its best effort to credit City for commissioning the Work whenever possible. e. The City is not responsible for any third -party infringement of the Artist's copyright and not responsible for protecting the intellectual property rights of the Artist. 4.2 Artist's Address. The Artist shall notify the City of changes in the Artist's address as set forth in Article 10. The failure to do so, if such failure prevents the City from locating the Artist, shall be deemed a waiver by the Artist of the right subsequently to enforce these provisions that require the express approval of the Artist. Notwithstanding this provision, the City shall make every reasonable effort to locate the Artist when matters arise relating to the Artist's rights. ARTICLE 5 WARRANTIES Artist represents and warrants that: a. The Work shall be the original product of the Artist's sole creative efforts; b. The Work is and will be unique and original, and does not infringe upon any copyright or the rights of any person or entity; c. The Artist has not sold, assigned, transferred, licensed, granted, encumbered, and/or utilized the Work or any element thereof or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; d. The Work (or duplicate thereof) has not been accepted for sale elsewhere; e. The Work is free and clear of any liens from any source whatsoever; f. The Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; g. All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill, and diligence; and h. Artist shall assume the defense of, and INEMNIFY AND HOLD HARMLESS, CITY, ITS OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS FROM AND AGAINST 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 WORK BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. ARTICLE 6 ARTIST AS INDEPENDENT CONTRACTOR The Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant, or employee of the City. The 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 the City and the 11 Artist, his/her officers, agents, employees and subcontractors, and doctrine of respondeat superior has no application as between the City and the Artist. ARTICLE 7 INDEMNIFICATION a. ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND, AT ITS OWN EXPENSE, CITY AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING, BUT NOT LIMITED TO, DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES AND SERVICES DESCRIBED HEREIN, PROVIDED THAT SAID CLAIMS OR SUITS ARE CAUSED BY ARTIST'S NEGLIGENCE OR WILFUL MISCONDUCT; AND ARTIST HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FOR ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KINDS OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES, AND SERVICES DESCRIBED HEREIN, PROVIDED THAT SAID CLAIMS OR SUITS ARE CAUSED BY ARTIST'S NEGLIGENCE OR WILFUL MISCONDUCT. ARTIST LIKEWISE COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL INJURY, DAMAGE, AND/OR DESTRUCTION OF PROPERTY OF CITY, ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR OMISSIONS OF THE ARTIST, ITS OFFICERS, MEMBERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, INVITEES, LICENSEES, OR PROGRAM PARTICIPANTS. b. THE ARTIST AGREES TO AND SHALL RELEASE THE CITY, ITS AGENTS, EMPLOYEES, OFFICERS, AND LEGAL REPRESENTATIVES FROM ALL LIABILITY FOR INJURY, DEATH, DAMAGE, AND/OR LOSS TO PERSONS OR PROPERTY SUSTAINED BY THE ARTIST IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THIS AGREEMENT. c. The Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of the City in substantially the same form as above. d. The Artist agrees to accept indemnification provisions in substantially the same form as above, in the subsequent artwork Commission Contract. e. All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. ARTICLE 8 EQUAL OPPORTUNITY a. The Artist shall not discriminate against any employee or applicant for employment because of age, disability, race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. The Artist shall take affirmative action to ensure that employees are treated equally during employment, without regard to their age, disability, race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. Such action shall include, but not be limited to, the following: Employment, upgrading, demotion, transfer, recruitment or pay or other forms of compensations, and selection for training, including, but not limited to, apprenticeship. The Artist agrees to post in conspicuous places, available to employees and applications for employment, notices to be provided by the City setting forth the provision of this nondiscrimination clause. b. The Artist shall in all solicitation or advertisements for employment placed on or on behalf of the Artist, state that all qualified applicants shall receive consideration for employment without regard to race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. 13 c. The Artist shall furnish all information and reports requested by the City of Fort Worth, and shall permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with such rules and regulations. d. In the event of the Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and the Artist may be debarred from further agreements with the City of Fort Worth. ARTICLE 9 MISCELLANEOUS 9.1. Compliance. The Artist shall comply with all Federal, State, and City statutes, ordinances, and regulations applicable to the performance of the Artist services under this Agreement. 9.2. 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. 9.3. 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 the City. 9.4. 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. 9.5. 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 14 Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 9.6. 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 the City and the Artists and their respective successors and permitted assigns. 9.7. No Third -Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of the City and the Artist, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 9.8 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. 9.9. 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, 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. 15 9.10. 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. 9.11. Fiscal Funding_Out. If for any reason, at any time during any term of this Agreement, the 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 I ollowing delivery by the City to the Artist of written notice of the City's intention to terminate or (ii) the last date for which funding has been appropriated by the City Council for the purposes set forth in this Agreement. 9.12. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 9.13. Artist's Address. Artist shall notify the Contract Manager of changes in address. 9.14. Surviving_Covenants. The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of the Artist. 9 15 City s Right to Complete. In the event of the death or legal incapacity of the Artist, the City of Fort Worth shall have the right to complete the Work and shall give credit to Artist, as appropriate. 9.16. Right to Audit. The Artist agrees that the City will have the right to audit the financial and business records of the 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 1000 Throckmorton Street, Fort Worth, Texas or at another location in the City acceptable to 16 both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. Notwithstanding anything to the contrary herein, this Section 8.16 shall survive expiration or earlier termination of this Agreement. 9.17. Certified MWBE. If applicable, Artist shall make its best effort to become a certified Minority/Women Business Enterprise (M/WBE) firm with a certifying agency whose certification is accepted by the City under the City's M/WBE ordinance. 9.18 Survival Provision The provisions contained in Articles 5, 6, and 7 shall survive the termination or expiration of this Agreement. 9.19 Public Information Act The Artist understands and acknowledges that the City is a public entity under the laws of the State of Texas and as such, all documents held by the City are subject to disclosure under Chapter 552 of the Texas Government Code. The Artist shall clearly indicate to the City what information it deems proprietary. If the City is required to disclose any documents that may reveal any Artist Proprietary Information to third parties under the Texas Government Code, or by any other legal process, law, rule, or judicial order by a court of competent jurisdiction, the City will notify the Artist prior to disclosure of such documents, and give the Artist the opportunity to submit reasons for objections to disclosure. The City agrees to restrict access to the Artist's information to those persons within its organization who have a need to know for purposes of management of this Agreement. The City agrees to inform its employees of the obligations under this paragraph and to enforce rules and procedures that will prevent any unauthorized disclosure or transfer of information. The City will use its best efforts to secure and protect the Artist's information in the same manner and to the same degree it protects its own proprietary information; however, the City does not guarantee that any information deemed proprietary by the Artist will be protected from public disclosure if release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Agreement. i�� ARTICLE 10 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: Fernando Costa, Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 Copies to: David Yett, City Attorney Law Department 1000 Throckmorton Street Fort Worth, TX 76102 Martha Peters, Public Art Director Arts Council of Fort Worth &Tarrant County 1300 Gendy Street Fort Worth, TX 76107 Julie Lazarus 3955 Altura Court Fort Worth, TX 76109 [SIGNATURES APPEAR ON THE FOLLOWING PAGE.] IN WITNESS HEREOF, the parties hereto have executed this Agreement on this day and year first written above. APPROVED AS TO FORM: Tyler F. Wallach Assistant City Attorney Date: 3 / 2 S'/ / a Contract Authorization: No M&C Required CITY OF FORT WORTH Fernando Costa Assistant City Manager Date: S/Zs�O ATTESTED BY: Hendrix 'City Secret ry Date: ��o� y/�/o 19 OFFICIAL RECORD CITY SECRETARY T. WORTH, TX Exhibit A: The Site Westside Water Treatment Plant 20 Exhibit B: Artist's Conceptual Proposal i Interior lobby elevation with artist's painting Exhibit B: Artist's Conceptual Proposal, Continued... Exterior sketch of retaining wall at entrance with artist's mosaic 22 Exhibit C: Budget ARTIST'S FEE {2f�e) TRAY EL (For artists who live more than SO miles irorn Fort Worth) Airfare Gar Rental Par Diem Expenses at per day Mileage at $_ per mils INSURANCE Aut�Hired Vehicle Liability 4ieneral Liability for Artist l Suk�otntractors Worker's Cornp.f Employer's Liability Other, as applicable — ADMINISTRATNE EXPENSES live PhctratFax De ryfShit•4ing(forcorresp lyknce, samples, moxais,drawings etc) Reprographic Service Supplies RROFFj=SSIt?NAL CCiNSULTANT FE€S (If applicable, thawing must be aigrwJ aril sealed by a profassiottal registered to praciica ire the State of Tex as) Architect` Structural Engineer' Electr�al Engineer` Conservetw Photographst (fordacurnentation of oomplated work)` Other` MATERIALS (Please attach a complete I�t of rnatarlals. Itemize all arrt4c�ated aspeots arrJ components with per unit oast estimates) MateTiale Total Cost increases?: Projected Increase in Cost Materials 12 Months In Future FABRICATlf7N COSTS (Irx;luda and itemke all partbns t# sut�c�rtractedwork and wrnk to be aompietad � artist.) Ariista Labor (__hours at 3_ per i>our) Total Subcontracted Labor* (Total) FacilityrEtluipment Rental llrsed exciusnrety for this ptajecir raletet! to ation cost Increases?: Projected Increase in Cost Fabrication 12 Months In Future SITE RRERARAT14lN (Do not im LrJe casts covered by FVrrPA, City of Fart W otter or others) Test Qrillir�' Removar Landscapinq vvlgatbn' Electrical Modifications' 23 W afar W ark�Mechanical Davk�ea othsT' Cost Increases?: Projected Increase in Cost site Preparation 12 Mcnths In Future TRANSpoRTATION Metetfalsto FakT'ratian Site' R63hed Work to Installation Site' CnheT' at Irrreases?: Projected Increase in Cost Ttanspwation 12 Months In Future BASErMOUNTING Base Mounting Devices and Components FoundatbaToating Other Cc�t htcreases? Projected Increase in Cost M3untirr3rFooting 12 Months In Furore INSTALLATfoN CCfSTS (C+ is must include allarrarre for alter haura installation, iF api:, le. Please attach a aarnpleta list of egripment and Individual estimateswith this form} Stkt attracted Laker' Scaffolding' Equipment Rental related to installation' Off -duty PoIIca'Se uT'rty' Traftio Barriers' Storage Facility Rental' City Permits Display Dsvices Firepto<•+1ing' Site Restoration" othat' LIGHTING Coat Increases?, Projected increase in Cost Installation 12 Months In Future oes�nera' Futures` Bulbs` Site Preparation' Installation' Cost Increases?; Projected Inetease in Cost Lighting 12 Months In Future GRAND TOTAL(InelUdlnjj projectetl cost Increase, if arty} piease maKB any necessary notes hate; prepared Byr Date; 24 Exhibit D: Sales Tax Exemption TEXAS CERTIF.[CATE OF EXEMPTION I 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. Descziption of'Itenrs (or an attached order or invoice) To Be Purchased: All Items 1 claim this exemption for the following reason: Name of exempt organization: City of Fort Worth Texas Sales and Use Tax Permit Number 1-75-60005284 Project for which materials and supplies ate purchased: I understand that I will Ue liable for payment of sales tax, which may become due for failure to comply wiflr the provisions of the state, city and/or metropoliiart irarrsit anthozzty sales and use tax laws and comptroller rules regarding exempt purchases Liability for the tax will be determined by the price paid for the taxable items. purchased or the fair market rental value for the period of time used. I understand that it is a misdemeanor to give an exemption certificate to the seller for taxable items which I lano�v, at the time o£ the puuchase, will be used th a manner other than that expensed in this certificate and, upon conviction, may be fined up to $500 per offense Tax Exempt Status Due to Being a Governmental Entity Putchaser: City of Fort Worth Siireet Addzess: 1000 Throckmorton Street City, State, Zip Code: Fort Worth, Texas 76102 Sign Here:' Date: 02/07/2007 Phone: f8171392-8325 This certificate does not require a number to be valid. Sales and use tax "exemption numbers" ox "tax exempt" numbers do not exist. This certificate should be furnished to the supplier. Do not send the completed certificate to the Comptroller of Public Accounts. Exhibit no Insurance Requirements PUBLIC ART PROJECTS Now INSURANCE REQUIREMENTS Artist and/or Artist's Subcontractors will provide the following insurance requirements. 1. Commercial General Liability (CGL) $1,000,000 Each occurrence $2,000,000 Aggregate limit 2. 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. If Artist subcontracts fabrication, transportation and installation of the Work, Artist shall not be required to provide Commercial General Liability Insurance, however Artist's Subcontractor shall provide Commercial General Liability Insurance which shall name the Artist, and The City of Fort Worth as additional insured. 3. Automobile Liability $1,000,000 Each accident or $250,000 Bodily Injury per person $500,000 Bodily Injury per occurrence $1003000 Property Damage A commercial business policy shall provide coverage on "Any Auto," defined as autos owned, hired and non -owned. 4. For Artists Al Artist's Subcontractors who have employees: Workers' Compensation Statutory limits Employer's liability $1005000 $100,000 $500,000 Each accident/occurrence Disease -per each employee Bodily Injury/Disease - policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.) and minimum policy limits for Employers' Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee. 26 GENERAL POLICY REQUIREMENTS • The City of Fort Worth, its Officers, Employees and Volunteers shall be named as an Additional Insured. Exception: The additional insured requirement does not apply to Workers' Compensation policies. • Thirty (30) days notice of cancellation or non -renewal. Example: "This insurance shall not be cancelled or non -renewed, until after thirty (30) days prior written notice has been given to the City of Fort Worth, except for ten (10) days notice for non-payment of premium. • Waiver of rights of recovery (subrogation) 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. Except for workers' compensation, 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." (If coverage is written on a claims -made basis, the retroactive date shall be coincident with or prior to the date of the contractual agreement and the certificate of insurance shall state that the coverage is claims made and the retroactive date. The insurance coverage shall be maintained for the duration of the contractual agreement and for five (5) years following completion of the service provided under the contractual agreement or for the warranty period, whichever is longer. An annual certificate of insurance submitted to the City shall evidence such insurance coverage.) • The deductible or self -insured retention (SIR) affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of the 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 the City's Risk Manager. • The City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their 27 limits when deemed necessary and prudent by the City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to the City of Fort Worth. The City shall be required to provide prior notice of ninety days. ® The 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.