HomeMy WebLinkAboutContract 43918c•_;%5 CIA:ritrARY fy
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AGREEMENT BETWEEN THE CITY OF FORT WORTH
AND ETTY HOROWITZ AND KEVIN SLOAN
FOR PRELIMINARY DESIGN OF PUBLIC ART FOR
THE I-30 GATEWAY MONUMENT PROJECT
This Agreement is entered into this
day of f\JVJ(Vv\½CVT2O12, by and between
the City of Fort Worth, a home -rule municipal corporation of the State of Texas, acting by and
through Fernando Costa, its duly authorized Assistant City Manager, and Etty Horowitz, an
individual, of 6628 Sahalee Drive, Fort Worth, Texas 76132, and Kevin Sloan, an individual, of
2400 Empire Central, Suite F, Dallas, Texas 75235. 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 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, the City of Fort Worth's Environmental Management Department (now,
split between the Code Compliance Department and the Transportation and Public Works
Department) won the Texas Governor's Community Achievement Award (GCAA) in 2004, an
award administered by the Texas Department of Transportation (TxDOT), providing
$265,000.00 that may be used for construction and installation of a landscape project on a State
of Texas right-of-way that fulfills the City's expectations and meets TxDOT's design, safety,
maintenance and funding requirements;
Agreement between the City of Fort Worth and Etty Horowitz and Kevin Sloan
for Preliminary Design of Public Artwork
11-71-12 PO4:25 IN
OFFICIAL RECORD
CITY UCRETARY
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WHEREAS, TxDOT has agreed to construct a gateway monument on a TxDOT-
approved site in the right-of-way on the north side of Interstate 30, just west of the Pantego Bible
Church sign near the eastern city limits of Fort Worth;
WHEREAS, the Fort Worth Art Commission (the "FWAC") has recommended the
Project in its Fiscal Year 2012 Annual Work Plan and Budget (approved by City Council on
December 6, 2011 as M&C C-25337);
WHEREAS, funding for the Artists' preliminary design and final design shall come from
the Public Art Fund;
WHEREAS, Artists were competitively selected through a process outlined in the Fort
Worth Public Art Master Plan conducted by the Contract Manager with oversight of the FWAC,
and were approved by the FWAC at a regularly -scheduled meeting on May 14, 2012;
WHEREAS, the FWAC has recommended that Artists, in coordination with City and
TxDOT, be retained to design an artwork for the Site; and
WHEREAS, City and Artists wish to set out the terms and conditions under which said Work
shall be designed to promote the integrity of Artists' ideas and statements as represented by the Work.
NOW, THEREFORE, City and Artists for and in consideration of the covenants and agreements
hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings as set forth below:
1.1. Agreement — Means and includes this agreement between the City and Etty Horowitz
and Kevin Sloan for Preliminary Design of Public Art for the Site.
1.2. Artists — Means and includes Etty Horowitz and Kevin Sloan and/or their heirs,
executors, administrators, legal representatives, successors, agents, subartists, contractors, and
assigns.
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1.3. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant
County, Inc , and/or its officers, directors, employees, agents, subsidiary organizations, parent
organization, successor corporations, assigns, predecessors, stockholders, administrators, and
related companies.
1.4. City — Means and includes the City of Fort Worth and its officers, representatives,
agents, servants, and employees.
1 5 Effective Date — Means and includes the date represented in the first paragraph of
this Agreement, which shall be the official date of execution of this Agreement.
1.6. Parties — Means and includes City and Artists.
1.7. Preliminary Design — Means all preliminary drawings, sketches, prototypes,
maquettes, models, narrative descriptions, budget estimates, and the like that are created by
Artists in connection with this Agreement and/or any prior agreement between Artists and City
for the Work.
1.8. Preliminary Design Deliverables — Means and includes those items set forth in
Article 2.3 of this Agreement that Artists are required to submit to City and TxDOT for review
and approval.
1.9. Project — Means and includes the capital improvement/public art development
undertaking of City for which Artists' services are to be provided pursuant to this Agreement.
1.10. Project Stakeholders — Means and includes the appropriate City Council
Member(s), and their appointed community representatives and the FWAC's appointed
representative and others as may be appropriate.
1.11. Site — Means and includes the TxDOT-approved and State of Texas -owned property
in the right-of-way on the north side of Interstate 30, just west of the Pantego Bible Church sign
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for Preliminary Design of Public Artwork
near the eastern city limits of Fort Worth, Texas 76103, which is more particularly described in
Exhibit "A," attached hereto and incorporated herein by reference for all purposes.
1.12. Work — Means and includes the finished object(s) of art and design that are the
subject of this Agreement, or any intermediary stage of completion of such work.
ARTICLE 2
SCOPE OF SERVICES
2.1. General.
(a) Artists shall perform all services and will furnish all supplies and materials as necessary for
developing the Preliminary Design of the Work. Services shall be performed in a professional
manner and in strict compliance with all terms and conditions in this Agreement.
(b) Artists shall determine the artistic expression, scope, design, color, size, material, and texture
of the Work, subject to review and input from Project Stakeholders and approval by City and
by TxDOT as set forth in this Agreement.
(c) Prior to commencing the Preliminary Design, Artists shall meet with and seek input from
Project Stakeholders.
(d) Artists shall explore concepts for the Work within TxDOT's GCAA award project
implementation budget set forth in Article 2.3.
(e) Artists shall design an impactful, unique and beautiful gateway monument that welcomes
drivers into the City from the east, which balances a sculptural feel with a strong landscaping
vision, and can be achieved within the grant budget using materials and construction
practices allowed under the GCAA's guidelines and all applicable guidelines, laws, rules,
regulations, and ordinances.
(f) The specific location at the Site where the Work will be installed shall be mutually agreed
upon by City, TxDOT, and Artists.
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(g) Artists shall develop a Preliminary Design of the Work, which shall conform to the following
requirements:
i. Combine a sculptural approach with a strong, supporting landscaping design that
orients itself primarily to west -bound traffic on I-30 and will be identifiable and
rewarding at freeway speeds.
ii. Form a visually cohesive design between the sculptural and landscape aspects of
the Work that challenges and elevates the typical monument sign concept.
iii. Utilize durable materials that include, but are not limited to, metal, stone, and
concrete. The landscape component shall utilize proven, hardy Texas native and
adapted plants that will require little to no maintenance once the establishment
period has passed.
iv. Include preliminary landscape design, including type and location of plant
materials and watering/establishment plan.
v. Include preliminary dimensions and massing of the Work, scaled to slope and size
of site as well as site -line opportunities along the west bound I-30 corridor.
vi. Include preliminary signage design, including font, materials, and attachment
method, and which shall include the text "Fort Worth."
vii Include preliminary lighting design, including specifying type and location of
lighting fixtures and solar panels.
(h) Artists shall meet and coordinate with Project Stakeholders, the City, TxDOT and others, as
necessary, to explore the compatibility of the Work with TxDOT requirements and the
feasibility of integrating the Work into the Site in terms of structural support, lighting,
electricity, or other infrastructure needs to support the Work.
(i) Artists shall present the Preliminary Design to TxDOT, Project Stakeholders, the appropriate
City staff, and other City boards or commissions, as appropriate, for input and to the FWAC
for review and approval at dates and times mutually agreed upon
2.2. City Assistance.
Upon request by Artists, City shall promptly furnish all information and materials required by
Artists to the extent that such materials are available. City, upon request by Artists, shall also
provide correct scaled drawings of the Site, if available.
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2.3. Preliminary Design Deliverables
(a) Within three (3) months after the Effective Date, Artists shall provide services and all
supplies, materials, and equipment necessary to provide certain deliverables, as set forth in
this Article 2.3 to City and TxDOT for approval. Preliminary Design Deliverables shall
consist of the following*
i. Three preliminary design illustrations showing the proposed Work from three vantage
points, including a plan view, which shall be at least 20" x 30" and mounted on foam
core and/or in a high resolution digital format.
ii. A narrative description of the Artists' concept, proposed materials including plant
materials, fabrication, and installation methods, maintenance, and anticipated annual
maintenance requirements.
iii. Material or fabrication samples and/or prototype models for the Work that show the
size and placement of the Work in relation to the Site, as appropriate.
iv. A preliminary budget estimate, on the budget form attached hereto as Exhibit "B," for
implementation of a final design of the Work in an amount not exceed TWO
HUNDRED FORTY THOUSAND DOLLARS AND NO CENTS ($240,000.00),
reflecting total costs and inclusive of site grading and preparation, materials, labor,
fabrication, transportation, construction, insurance, installation, plant materials and
establishment of same, irrigation system, lighting, bringing power to the Site, and all
associated costs for the Work.
(b) The preliminary budget shall designate what items the base bid shall include and what
items shall be considered as add alternates, to ensure the project remains buildable in the event
costs increase by the time of implementation In addition, Artists shall also allow for possible
cost increases across all line items in the base bid and in the add alternates. TxDOT has agreed to
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be responsible for the cost of the traffic control plan and guardrail replacement, utilizing
$25,000.00 of the $265,000.00 GCAA budget.
2.4. Preliminary Design Review
(a) Upon completion of the Preliminary Design Deliverables, Artists shall meet with TxDOT, the
designated Project Stakeholders, City staff, and other City boards or commissions, as
appropriate, to present the Preliminary Design, at a date and time mutually agreed upon, for
input.
(b) Artists shall present the Preliminary Design to the FWAC for approval at a regularly
scheduled FWAC meeting
(c) City shall notify Artists of its approval, or disapproval, of the Preliminary Design within
thirty (30) business days of Artists' presentation to the FWAC.
(d) If City disapproves of the Preliminary Design, either in whole or in part, then City shall
inform Artists of each revision to be made to the Preliminary Design. City may require
Artists 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.
(e) Artists shall have thirty (30) calendar days from the date City informed Artists of the
revision(s) to present the revised Preliminary Design in conformance with City's
requirements.
(f) 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
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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)
(g) Upon City approval of the Preliminary Design, any revisions made to a City -approved
Preliminary Design shall become part of the Preliminary Design. Artists shall incorporate
any City -approved revisions into the final design in conformance with City's requirements.
Any revisions shall become part of any final design deliverables if the Artists proceed to the
final design phase. Artists shall provide the Preliminary Design presentation materials to the
Contract Manager to become part of the City of Fort Worth Public Art archive owned by
City. These documents, models, and/or drawings will be retained for archival and exhibition
purposes.
(h) Upon the expiration of the Term (hereinafter defined) of this Agreement, if the Preliminary
Design is accepted by City, negotiations for final design of the Work shall commence.
ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1. Compensation
Total compensation under the Agreement shall be FIFTEEN THOUSAND DOLLARS AND
NO CENTS ($15.000.00), which shall constitute full compensation for any and all costs
associated with the Agreement, including, but not limited to, all travel expenses, and services
performed and materials furnished by Artists under this Agreement. Artists and City may amend
this Agreement to allow for additional payment if additional services are required.
3.2. Payment Schedule
City agrees to pay Artists in the following installments set forth below, each installment to
represent full and final, non-refundable payment for all services and materials provided prior to
the due date thereof:
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(a) FIVE THOUSAND DOLLARS AND NO CENTS ($5.000.00) upon execution of this
Agreement
(b) EIGHT THOUSAND DOLLARS AND NO CENTS ($8.000.00) within thirty (30)
calendar days after Artists submit all of the Preliminary Design Deliverables required
under Article 2.4 of this Agreement and makes a presentation(s) of the Preliminary
Design to the FWAC.
(c) TWO THOUSAND DOLLARS AND NO CENTS ($2.000.00) within thirty (30)
calendar days after City's approval of the Preliminary Design.
3.3. Sales Taxes.
City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be
due upon the Project. City shall supply Artists with the "Texas Certificate of Exemption," in
substantially the same fonlrr as that attached hereto as Exhibit "C," for use by Artists in the
fulfillment of this Agreement
3.4. Artists' Expenses
Artists shall be responsible for the payments of all expenses incurred during the performance of
this Agreement, including, but not limited to, services, materials, mailing/shipping charges and
insurance on submissions to City, cost of all travel, and costs for Artists' agents, consultants,
and/or employees necessary for the proper performance of the services required under this
Agreement.
ARTICLE 4
TERM AND TERMINATION
4.1. Term
This Agreement shall be in effect from the Effective Date, and, unless terminated earlier pursuant
to such provisions in this Agreement, shall extend until final payment to Artists by City.
4.2. Gratuities
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City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or
otherwise were offered or given by Artists or any agent or representative to any City or Contract
Manager official or employee with a view toward securing favorable treatment with respect to
the awarding, amending, or making of any determinations with respect to this performance of this
Agreement.
4.3. Termination for Cause
If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms
of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material
to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this
Article 4.3 in accordance with the dispute resolution process set forth in Article 5 If the Parties
cannot resolve the dispute(s), then the disputing party shall thereupon have the right to tei ninate
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 tends of this
Agreement
4.4. Termination for Convenience
a. The services to be performed under this Agreement may be terminated by either party,
subject to written notice submitted thirty (30) calendar days before termination, specifying the
grounds for termination
b. If the termination is for the convenience of City, City shall pay Artists for services
actually rendered up to the effective date of ten iination, and Artists shall continue to provide the
City with services requested by City and in accordance with this Agreement up to the effective
date of termination. Upon payment in full of all monies due for services provided up to the
effective date of termination, City shall have the right, in its sole discretion, to possession and
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transfer of all work product produced by Artists under this Agreement, including, but not limited
to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the
effective date of termination, provided that no right to fabricate or execute the Work shall pass to
City.
c. If termination is for the convenience of Artists, City shall have the right, in its sole
discretion, to pay Artists for services actually rendered up to the effective date of termination or
require the Artists to remit to City a sum equal to all payments (if any) made to the Artists
pursuant to this Agreement prior to the effective date of termination. If City chooses to pay
Artists for services actually rendered, then all work product produced by Artists under this
Agreement, including, but not limited to, finished and unfinished drawings, sketches,
photographs, models, and designs, up to the effective date of termination shall become property
of City.
d. If termination is by mutual agreement of the Parties as set forth in Article 2.4, then City
shall pay Artists for work performed per the payment schedule in Article 3 up through the date of
termination. City shall have the right to possession and transfer of all work product produced by
Artists under this Agreement, including, but not limited to, finished and unfinished drawings,
sketches, photographs, models, and designs, up to the effective date of termination
4.5. Incapacity of Artists
a. In the event of either Etty Horowitz's or Kevin Sloan's death or physical or legal
incapacitation during the term of this Agreement, City shall have the right to terminate this
Agreement on payment to Artists or Artists' successors for all work and services performed prior
to death or incapacity. All work product produced by Artists, including, but not limited to,
finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective
date of termination shall become property of City.
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b. Should Artists' Preliminary Design have been approved, in the event of termination under
this Article 4.5, City shall have the right to complete the Work, if feasible. Due regard shall be
made for Artists' intended results and proper credit and acknowledgement shall be given to
Artists. This provision shall survive the termination or expiration of this Agreement.
ARTICLE 5
DISPUTE RESOLUTION
If either Artists or City has a claim, dispute, or other matter in question for breach of duty,
obligations, services rendered or any warranty that arises under this Agreement, the Parties shall
first attempt to resolve these issues through this dispute resolution process. The disputing party
shall notify the other party in writing as soon as practicable after discovering the claim, dispute,
or breach. The notice shall state the nature of the dispute and list the party's specific reasons for
such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a
good faith effort, either through email, mail, phone conference, in person meetings, or other
reasonable means to resolve any claim, dispute, breach, or other matter in question that may arise
out of or in connection with this Agreement.
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
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the conditions precedent in this article shall be deemed to have occurred. The Parties shall share
the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under
this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation shall be
enforceable as a settlement agreement in any court having jurisdiction. No provision of this
agreement shall waive any immunity or defense. No provision of this Agreement constitutes
consent to sue If the Parties cannot resolve the dispute through mediation, then either party shall
have the right to exercise any and all remedies available under law regarding the dispute. (See
Article 4.3)
ARTICLE 6
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
6.1 General
a. Upon payment in full to Artists or pursuant to the applicable termination provision of this
Agreement, the Preliminary Design, Work, and all other work product under this Agreement
shall become the property of City, without restriction on future use, except as provided below.
Artists shall retain copyright and other intellectual property rights in and to the Preliminary
Design and/or Work. By execution of this Agreement, Artists grants to the City an exclusive,
perpetual, and irrevocable license to graphically depict or display the Preliminary Design and/or
Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic
depiction or display of the Preliminary Design and/or Work intended to promote or benefit City,
its public services or its public purposes, regardless of whether or not a fee is charged to the
public, or whether revenue is otherwise received by City, shall be deemed a non-commercial
purpose.
b. In view of the intention that the Preliminary Design and the Work be unique, Artists shall
not make any additional exact duplicate reproductions of the Preliminary Design or the Work,
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nor shall Artists grant permission to others to do so except with the express written permission of
City. However, nothing herein shall prevent Artists from creating future artworks in Artists
manner and style of artistic expression.
c. Artists reserve every right available under the Federal Copyright Act to control the
making and dissemination of copies or reproductions of the Preliminary Design and/or Work,
except as those rights are limited by this Agreement. City may make and disseminate
photographs, drawings, and other two-dimensional reproductions of the Preliminary Design
and/or Work and accompanying materials for any municipal purpose. All reproductions by the
City shall contain a credit to the Artists and a copyright notice substantially in the following
form: "CO date, Artists' name "
d. Nothing in this Agreement shall prevent the Artists from using images of the Preliminary
Design and/or Work for marketing and promotional purposes in connection with the Artists'
business; provided, however, that Artists shall make their best efforts to credit City for
commissioning the Work whenever possible substantially in the following form: "an original
artwork commissioned by and in the collection of the City of Fort Worth, Texas."
e. City is not responsible for any third -party infringement of Artists' copyright and not
responsible for protecting the intellectual property rights of Artists
6.2 Artists' Addresses.
Artists shall notify City of changes in Artists' address as set forth in Article 12. The
failure to do so, if such failure prevents City from locating Artists, shall be deemed a waiver by
Artists of the right subsequently to enforce these provisions that require the express approval of
Artists. Notwithstanding this provision, City shall make every reasonable effort to locate Artists
when matters arise relating to Artists' rights.
ARTICLE 7
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WARRANTIES OF TITLE AND COPYRIGHT
Artists represent and warrant that
(a) Preliminary Design and/or Work shall be the original product of the Artists' sole creative
efforts.
(b) Preliminary Design and/or Work is and will be unique and original, and does not infringe
upon any copyright or the rights of any person;
(c) Artists have not sold, assigned, transferred, licensed, granted, encumbered, or utilized the
Preliminary Design and/or Work or any copyright related thereto that may affect or impair
the rights granted pursuant to this Agreement;
(d) Preliminary Design and/or Work (or duplicate thereof) have not been accepted for sale
elsewhere;
(e) Artists have the full power to enter into and perform this Agreement and to make the
grant of rights contained in this Agreement; and
(f) All services performed hereunder shall be performed in accordance with all applicable
laws, regulations, ordinances, etc., and with all necessary care, skill and diligence.
ARTICLE 8
ARTISTS AS INDEPENDENT CONTRACTORS
Artists shall perform all work and services hereunder as independent contractors, and not
as an officers, agents, servants or employees of City. Artists shall have exclusive control of, and
the exclusive right to control the details of the work performed hereunder, and all persons
performing same, and shall be solely responsible for the acts and omissions of his/her officers,
agents, employees, and subcontractors. Nothing herein shall be construed as creating a
partnership or joint venture between City and Artists, their officers, agents, employees and
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subcontractors, and doctrine of respondent superior has no application as between City and
Artists.
9.1. General Indemnity
ARTICLE 9
INDEMNIFICATION
i. ARTISTS COVENANT AND AGREE TO AND DO HEREBY INDEMNIFY,
HOLD HARMLESS, AND DEFEND, AT THEIR OWN EXPENSE, CITY FROM
AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS,
ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES
(INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF
DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR
SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO,
THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO,
WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND
PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT
NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM
FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER
KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT
OF OR RESULTING FROM THE ANY ACTS, ERRORS, OR OMMISSIONS OF
ARTISTS AND/OR ARTISTS' SUBARTISTS AND CONTRACTORS AND
THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS,
MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH
THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR
NONPERFORMANCE OF THIS AGREEMENT.
ii. Artists agree to and shall release City from any and all liability for injury, death, damage,
or loss to persons or property sustained or caused by Artists in connection with or
incidental to performance under this Agreement.
iii. 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
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Artists agree to assume full responsibility for complying with all State and Federal Copyright Laws and
any other regulations, including, but not limited to, the assumption of any and all responsibilities for
paying royalties that are due for the use of other third party copyrighted works by Artists. City expressly
assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or
financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of
copyrighted materials by Artists without the appropriate licenses or permission being secured by Artists
in advance. IT IS FURTHER AGREED THAT ARTISTS SHALL RELEASE, DEFEND,
INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL
CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND
DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH
THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE
WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR
OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no
obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive
obligation of Artists.
9.3. Survival
All indemnification provisions of this Agreement shall survive the termination or expiration of this
Agreement.
ARTICLE 10
EQUAL OPPORTUNITY
Artists shall not engage in any unlawful discrimination based on race, creed, color,
national origin, sex, age, religion, disability, marital status, citizenship status, sexual
orientation or any other prohibited criteria in any employment decisions relating to this
Agreement, and Artists represent and warrant that to the extent required by applicable
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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 Artists noncompliance with the nondiscrimination clauses of this
Agreement, this Agreement may be canceled, terminated, or suspended in whole or in
part, and Artists may be debarred from further agreements with City.
ARTICLE 11
MISCELLANEOUS
11.1. Compliance
Artists shall comply with all Federal, state, and local statutes, ordinances, and regulations
applicable to the performance of Artists' services under this Agreement.
11.2. Entire Agreement
This writing embodies the entire agreement and understanding between the Parties hereto, and
there are no other agreements and understandings, oral or written, with reference to the subject
matter hereof that are not merged herein and superseded hereby.
11.3. Amendments
No alteration, change, modification, or amendment of the terms of this Agreement shall be valid
or effective unless made in writing and signed by both parties hereto and approved by appropriate
action of City.
11.4. Waiver
No waiver of performance by either party shall be construed as or operate as a waiver of any
subsequent default of any terms, covenants, and conditions of this Agreement. The payment or
acceptance of fees for any period after a default shall not be deemed a waiver of any right or
acceptance of defective performance.
11.5. Governing Law and Venue
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If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of
this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or
the United States District Court for the Northern District of Texas — Fort Worth Division. This
Agreement shall be construed in accordance with the laws of the State of Texas.
11.6. Successors and Assigns
Neither party hereto shall assign, sublet, or transfer its interest herein without prior written
consent of the other party, and any attempted assignment, sublease, or transfer of all or any part
hereof without such prior written consent shall be void. This Agreement shall be binding upon
and shall inure to the benefit of City and Artists and their respective successors and permitted
assigns.
11.7. No Third -Party Beneficiaries
The provisions and conditions of this Agreement are solely for the benefit of City and Artists,
and any lawful successor or assign, and are not intended to create any rights, contractual, or
otherwise, to any 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 Maleure
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
Agreement between the City of Fort Worth and Etty Horowitz and Kevin Sloan Page 19 of 29
for Preliminary Design of Public Artwork
this Agreement to do or perform the same, regardless of whether any such circumstance is similar
to any of those enumerated or not, the party so obligated or permitted shall be excused from
doing or performing the same during such period of delay, so that the time period applicable to
such design or construction requirement shall be extended for a period of time equal to the period
such party was delayed.
11.10. Contract Construction
The Parties acknowledge that each party and, if it so chooses, its counsel, have reviewed and
revised this Agreement and that the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party must not be employed in the interpretation of this
Agreement or any amendments or exhibits hereto.
11.11. Fiscal Funding Out
If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council
fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the
City may terminate this Agreement to be effective on the later of (i) thirty (30) days following
delivery by City to Artists of written notice of City's intention to terminate or (ii) the last date for
which funding has been appropriated by the Fort Worth City Council for the purposes set forth in
this Agreement.
11.12. Captions
Captions and headings used in this Agreement are for reference purposes only and shall not be
deemed a part of this Agreement.
11.13 Right to Audit
Artists agree that City will have the right to audit the financial and business records of Artists
that relate to the Work (collectively "Records") at any time during the Term of this Agreement
and for three (3) years thereafter in order to detenutine compliance with this Agreement
Agreement between the City of Fort Worth and Etty Horowitz and Kevin Sloan Page 20 of 29
for Preliminary Design of Public Artwork
Throughout the Term of this Agreement and for three (3) years thereafter, the Artists shall make
all Records available to the City at 1000 Throckmorton 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. Notwithstanding anything to
the contrary herein, this Article shall survive expiration or earlier termination of this Agreement
11.14. Certified MBE/WBE
If applicable, Artists are encouraged to make their best efforts to become a certified Minority
Business Enterprise (MBE) or Woman Business Enterprise (WBE) firm with a certifying agency
whose certification is accepted by the City under the City's Business Diversity Enterprise
Ordinance.
11.15 Survival Provision
The provisions contained in Articles 6 (Ownership and Intellectual Property Rights), 7
(Warranties of Title and Copyright), 8 (Artists as an Independent Contractor), and 9
(Indemnification) shall survive the termination or expiration of this Agreement.
11.16 Public Information Act
Artists understand and acknowledges that City is a public entity under the laws of the State of
Texas and, as such, all documents held by City are subject to disclosure under Chapter 552 of the
Texas Government Code. Artists shall clearly indicate to City what information it deems
proprietary. If City is required to disclose any documents that may reveal any of Artists'
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, City will notify Artists
prior to disclosure of such documents, and give Artists the opportunity to submit reasons for
objections to disclosure. City agrees to restrict access to Artists' information to those persons
within its organization who have a need to know for purposes of management of this Agreement.
Agreement between the City of Fort Worth and Etty Horowitz and Kevin Sloan Page 21 of 29
for Preliminary Design of Public Artwork
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 City will
use its best efforts to secure and protect Artists' information in the same manner and to the same
degree it protects its own proprietary information; however, City does not guarantee that any
information deemed proprietary by Artists 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.
11.17 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.
11.18. Time Extensions
The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this
Agreement.
ARTICLE 12
NOTICES
All notices, requests, demands, and other communications which are required or permitted to be
given under this Agreement shall be in writing and shall be deemed to have been duly given upon
the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or
certified mail, return receipt requested, postage prepaid, as follows:
1. CITY OF FORT WORTH: Fernando Costa, Assistant City Manager
City Manager s Office
City of Fort Worth
1000 Throckmorton Street, Third Floor
Fort Worth, Texas 76102
Agreement between the City of Fort Worth and Etty Horowitz and Kevin Sloan Page 22 of 29
for Preliminary Design of Public Artwork
Copies to:
2. ARTISTS
City Attorney
Office of the City Attorney
City of Fort Worth
1000 Throckmorton Street, Third Floor
Fort Worth, Texas 76102
Martha Peters, Vice President of Public Art
Arts Council of Fort Worth & Tarrant County
1300 Gendy Street
Fort Worth, Texas 76107
Etty Horowitz
6628 Sahalee Drive
Fort Worth, Texas 76132
Kevin Sloan
2400 Empire Central Suite F
Dallas, Texas 75235
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
Agreement between the City of Fort Worth and Etty Horowitz and Kevin Sloan Page 23 of 29
for Preliminary Design of Public Artwork
IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective
on the Effective Date.
CITY OF FORT WORTH ARTISTS
by:c7.114144.44
Fernando Costa
Assistant City Manager
APPROVED AS TO FORM
AND LEGALITY:
Tyler F. ,� allach
Assistafit City Attorney
ATTESTED BY:
'l
J. Kays/
Ci y Secretary
Etty Horowitz
Kevin Sloan
.p444� Ft%nz,
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8.4e,
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Contract Authorization: No M&C Required
Agreement between the City of Fort Worth and Etty Horowitz and Kevin Sloan
for Preliminary Design of Public Artwork
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
24 of 29
IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective
on the Effective Date.
CITY OF FORT WORTH ARTISTS
by
{ Fernando Costa
Assistant City Manager
APPROVED AS TO FORM
AND LEGALITY
Tyler F. Wallach
Assistant City Attorney
ATTESTED BY:
Mary J. Kayser
City Secretary
Contract Authorization: No M&C Required
E7917 1`7or 7Gt, l j'
Etty Horowitz/
Kevin Sloan
s
Exhibit A
I-30 Gateway Monument Site
Agreement between the City of Fort Worth and Etty Horowitz and Kevin Sloan
for Preliminary Design of Public Artwork
Page 25 of 29
Agreement between the City of Fort Worth and Etty Horowitz and Kevin Sloan Page 26 of 29
for Preliminary Design of Public Artwork
Exhibit B:
Implementation Budget
FORT WORTH PUBLIC ART PROJECT BUDGET
Please complete this form and attach a signed receipt or estimate complete with per unit
costs (no lump sums) for all items designated with an asterisk('). Cost increases must
also have a written estimate attached.
ARTIST'S FEE (15%)
TRAVEL
(For artists who live more than 50 miles from Fort Worth)
Airfare
Car Rental
Per Diem Expenses at $ per day
Mileage at $ per mile
INSURANCE
Auto/Hired Vehicle liability
General Lability for Artist / Subcontractors
Worker's Comp. t Employer's Liability
Other, as applicable
ADMINISTRATIVE EXPENSES
Phone/Fax
Delivery/Shipping (for correspondence, samples, models, drawings etc)
Reprographic Service
Copyright Registration
Supplies
PROFESSIONAL CONSULTANT FEES
(If applicable, drawing must be signed and sealed by a professional registered to practice
in the State of Texas)
Architect"
Structural Engineer'
Electrical Engineer`
Conservator*
Photographer (for documentation of completed work)*
Other"
MATERIALS
(Please attach a complete list of materials. Itemize all anticipated aspects and
components with per unit cost estimates)
Materials' Total
Cost Increases: Projected Increase in Cost Materials 12 Months In Future
FABRICATION COSTS
(Include and itemize all portions of subcontracted work and work to be completed by
artist.)
Artist's Labor ( hours at $ per hour) Total
Subcontracted Labor (Total)
Facility/Equipment Rental (used exclusively for this project) related to fabrication
Cost Increases: Projected Increase in Cost Fabrication 12 Months In Future
SITE PREPARATION
(Do not include costs covered by FWPA. City of Fort Worth or others)
Test Drilling"
Removal"
Landscapingflnigation'
Agreement between the City of Fort Worth and Etty Horowitz and Kevin Sloan Page 27 of 29
for Preliminary Design of Public Artwork
Electrical Modifications'
Water Work/Mechanical Devices
Other*
Cost Increases: Projected Increase In Cost Site Preparation 12 Months In Future
TRANSPORTATION
Materials to Fabrication site
Finished Work to Installation Site'
Other
Cost Increases?: Projected Increase In Cost Transportation 12 Months In Future
BASE/MOUNTING
Base
Mounting Devices and Components
Foundation/Footing
Other
Cost Increases: Projected Increase in Cost Mounting/Footing 12 Months In Future
INSTALLATION COSTS
(Costs must include allowance for after hours installation, if applicable. Please attach a
complete list of equipment and individual estimates with this fora))
Subcontracted Labor'
Scaffolding'
Equipment Rental related to installation'
Off -duty Police/Security'
Traffic Barriers'
Storage Facility Rental'
City Permits
Display Devices
Fireproofing'
Site Restoration'
Other
Cost Increases: Projected Increase in Cost Installation 12 Months In Future
LIGHTING
Designers'
Fixtures'
Bulbs"
Site Preparation'
Installation'
Cost Increases: Projected Increase In Cost Lighting 12 Months In Future
GRAND TOTAL (Including projected cost Increase, if any)
Please make any necessary notes here:
Prepared By:
Date:
Agreement between the City of Fort Worth and Etty Horowitz and Kevin Sloan Page 28 of 29
for Preliminary Design of Public Artwork
Exhibit C:
Sales Tax Exemption
TEXAS ('I:I;'rlFlt',t CE OF IIP'I'ION
ktint a=t exemption from pa'rwtan otMalcs and use tuxes tar the luuchasc tit' trtx;tble item\ ckrs+:ribcd
below 1,r 011 the attached order or infarcts.
)'seiiption of items tnr an :3tt,le'hcd order or Inv ttice)'l4e.
Lela this zxetrtittit,rt I Lt the tatllcnvtnp rcae:s
•
'Chased:
Name tit Fxeuir Oruanirutinn. CITY OF FORT \VORT11, TEXAS
TEXAS SAILS AND USE FAX PERMIT NUMBER Ia75-6I1011528-6
Ptnje-ci for which ma
nine snppkes ere purchased:
I understand that I will be liable for pai,ment of sales tux. which nary become due tiur ft+ilure to comply
with the pmVisn}ns of t1:e tilatt. eitys anchor mctrnr.rrlitan transit authority sale; and use ta,x lows and
ei niptrntler rules regardint exempt purchases. liability for the tax will he dLteiminexi by the pace paid
fof tdxuhle items purchased or the ran market rental value t+tr the pt-noil of lime used.
I unticrstund that it is :a misd.-tneimor to 'Jive an exemption certificate to the seller for Irtx;tble items witch
kmew, <rt the time of the purchase, will he. used in a ntunnerothei than Ilia; expensed in this Crt;it:crate•
and. upon cnni i lien. r±tut he tined up to Sdill pet otlense.
Mx Exempt Stalus Due to 13ciaf%:3 crt5V_ntrltintatt Lenity
Purchaser: C'l'l 1' OF FORT WORTH, TEXAS
treet Address: 1009 TIIROCKNIOR ION STREET
t:'i'.y, Slate. Zip ('iuIe: FORT ti\ORTII. T'EX.ks 70102
Sion HcrL:
for,.:, a!'a
t
rinvi.emCt ir, s,4'> Ii ret tin
Phis ccrtriicalc dt.t<_ti net require a nu 3 thcr It
exerrtptnumbers tin not cxr'a,
'I his cold -ware Sill::Itl be Vanish cd to the suppllct f)n n+i1 et:d t:tr caunt,3etcti ;-t-rlihettlu to the
Comptroller of I'uhh :let:uuuts
Dale: June I ,'Siia1 Mune. ti 1'h:192- t51 _
he valid
exemption cumbers ` or "tax
Agreement between the City of Fort Worth and Etty Horowitz and Kevin Sloan Page 29 of 29
for Preliminary Design of Public Artwork