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HomeMy WebLinkAboutContract 42623CITY SECRETARY CONTRACT NO. AGREEMENT FOR MASTER PLAN AND DESIGN OF PUBLIC ART/ DESIGN ENHANCEMENTS FOR THE MARINE CREEK PARK CORRIDOR BETWEEN THE CITY OF FORT WORTH AND BENITO HUERTA This AGREEMENT is entered into this 2 day of CZ`KY�bPX , 2011 (the "Effective Date "), 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 BENITO HUERTA, an individual, of 1128 West Park Row Drive, Arlington, Texas. The City has designated the ARTS COUNCIL OF FORT WORTH AND TARRANT COUNTY, INC., to manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art project manager. WHEREAS, pursuant to Chapter 2, Sections 2 -56 through 2 -61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of artists into the development of the City's capital infrastructure improvements and to promote tourism and economic vitality in the City through the artistic design of public spaces; WHEREAS, City is designing and constructing park improvements in the Marine Creek Park Corridor, which includes Rodeo Park, Lincoln Park, Marine Creek Linear Park and Buck Sansom Park; WHEREAS, City has set aside funds to design and commission public art/design enhancements in conjunction with park improvements projects from the 2004 Capital Improvements Program (CIP); WHEREAS, on February 7, 2005, City and Artist made and entered into City Secretary Contract No. 31310, as authorized by City Council (M &C C- 20493), under which Artist worked t t AffI l!��v l�;4 -:°"AR Ri 1 recment for Master Plan and Design of Puhlic Art Design I a Enhancements For I he Marine Creek Park Corridor Between ;�"I"i TAR the CitN Ot Fort Worth and Benito Iluerta FT. WORTH, TX collaboratively with the Parks and Community Services Department staff and two Fort Worth area artists and developed a catalog of Park Design Enhancements for park sites included in the 2004 CIP; WHEREAS, FWPA staff and the Fort Worth Art Commission ( "FWAC ") recommend a planning approach that considers the whole of the Marine Creek Park Corridor, as well as its various parts, relating these parks to one another while demonstrating the unique qualities of the communities in which they reside; WHEREAS, FWAC recommended Artist to develop a Master Plan for public art and Final Designs of public art /design enhancement recommendations for the Project, which was included in the Fort Worth Public Art's recommended fiscal year 2012 Annual Work Plan; WHEREAS, funding may be available for implementation of public art/design enhancement recommendations at different times and each public art/design enhancement recommendation shall be considered individually and have its own Artwork Design; and WHEREAS, City and Artist wish to set out the terms and conditions for the Artist's participation in the Project, including consultation with the City's Project Consultant. NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: 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 of Fort Worth and Benito Huerta for Master Plan and Design of Public Art/Design Enhancements for the Site. Agreement for Master Plan and Design of Public Art Design Page 2 of 32 I.nhanccments For I he Marine Creek Park Corridor Between the Cite OIJ ort Worth and Benito IIuerta 1.2. Artist — Means and includes Benito Huerta and all other persons or entities for which Artist is legally responsible, including, but not limited to, his heirs, executors, administrators, legal representatives, successors, agents, subartists, contractors, and assigns. 1.3. Artwork Design(s) — Means and includes both the Preliminary and Final Designs of the Works, which are defined in 1.3.a. and 1.3.b. below. 1.3.a. Preliminary Design(s) — Means all preliminary drawings, sketches, prototypes, maquettes, models, narrative descriptions, budget estimates, and the like that are created by Artist in connection with this Agreement and /or any prior agreement between Artist and City for the Work(s). 1.3.b. Final Design(s) — Means the Artist's final, proposed design(s) of the Work(s) for the Site and includes, but is not limited to, all final drawings, sketches, prototypes, maquettes, models, and the like that may be created by Artist in connection with this Agreement, or the like that are related, directly or indirectly, to the Work(s) and shall include Artist's specifications for fabrication and installation of the Work(s). 1.4. 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 organizations, successor corporations, assigns, predecessors, stockholders, administrators, and related companies. 1.5. City — Means and includes the City of Fort Worth and includes City's officers, representatives, agents, servants, and employees. 1.6. Effective Date — Means and includes the date represented in the first paragraph of this Agreement, which shall be the official date of execution of this Agreement. Agreement liar Muster Ilan and Design of Public Art, Design Page 3 of'32 Enhancements For The Marine Creek Park Corridor Between the Cite Ot Fort Worth and Benito Iluerta 1.7. Final Design(s) Deliverables — Means and includes those items set forth in Article 3.4 of this Agreement that are required for City's review and approval. 1.8. Master Plan — Means and includes the Artist's plan for the Site that identifies locations and types of public art that other artists can implement over time, and that shall also include opportunities for implementation of Park Design Enhancements elements and designs for integral artworks to be implemented into the Project. 1.9. Master Plan Deliverables - Means and includes those items set forth in Article 2.2 of this Agreement that are required for City's review and approval. 1.10. Parties — Means and includes City and Artist. 1.11. Park Design Enhancements — Means and includes the catalog of design elements created by Artist and his team that are more particularly described in Exhibit "A," attached hereto and incorporated herein by reference for all purposes. 1.12. Project — Means and includes the capital improvement/public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement. 1.13. Project Consultant — Means and includes the design firm /professional(s) hired by City to design the Site. 1.14. Site — Means the Marine Creek Park Corridor, which includes Rodeo Park, Lincoln Park, Marine Creek Linear Park and Buck Sansom Park, which are more particularly described on Exhibit "B," attached hereto and incorporated herein by reference for all purposes. 1.15. Work(s) — Means and includes the finished object(s) of art and design enhancements that are the subject of this Agreement, or any intermediary stage of completion of such work(s). Agreement for Mastcr Plan and Design of Public Art: Design Page a of 32 F:nhancemcnts For The Marine Creek Park Corridor Bet"een the Cih O1 Fort Worth and Benito Huerta ARTICLE 2 MARINE CREEK PARK PUBLIC ART MASTER PLAN SCOPE OF SERVICES AND DELIVERABLES 2.1. Scope of Services. a. Artist shall conduct research and gather community input, historical information, and documents for each of the parks and /or neighborhoods that are included as part of the Site. b. Artist shall create a public art Master Plan document for the Site based upon the Park Design Enhancements and ideas and recommendations gathered during research and developed during community group meetings. C. Artist may use consultant support, as determined by Artist, at no additional expense to the City. d. Artist shall present the final Master Plan to community stakeholders, City officials, and the FWAC on a mutually agreed upon date and time. 2.2. Master Plan Deliverables Within six (6) months after the Effective Date of this Agreement, Artist shall perform services and provide all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Section 2.2. to City for approval. Master Plan Deliverables shall consist of the following: a. Develop a bubble diagram, shown as an overlay on an aerial map of the Site, indicating recommended locations for various types of public art/design enhancements. b. Master Plan narrative describing the following: (1) Marine Creek Park Corridor context; (2) Recommended thematic approaches for public art/design enhancements; (3) Recommended types of public art /design Agreement I-or Master flan and Design of I'uhlic Art; Design Page 5 of 32 Enhancements For I he Marine Creek Park Corridor Between the Cith Of Fort Worth and Benito I luerta enhancement elements, including media and locations; (4) Estimated budget ranges for recommended elements; (5) Prioritization of elements; and (6) Listing of individuals and organizations who participated in the Master Plan by giving input, attending meetings, or any other participation. C. Electronic copy of Artist's PowerPoint presentation, if any. Four bound copies and the .pdf file of the final Master Plan brochure /document/drawings /diagrams. 2.3. Master Plan Review a. Artist shall present the final Master Plan to community stakeholders, City officials, and the FWAC on a mutually agreed upon date and time. ARTICLE 3 ARTWORK DESIGNS) FOR MARINE CREEK PARK SCOPE OF SERVICES AND DELIVERABLES 3.1. Scope of Services. a. Artist shall create multiple Artwork Designs for multiple locations at the Site. City may choose to implement some, all, or none of the Artwork Designs through a subsequent artwork commission contract. b. Artist, in collaboration with the Project Consultant, shall determine the artistic expression, scope, design, color, size, material, and texture of the Artwork Design(s) and Work(s), subject to review and acceptance by City as set forth in this Agreement. C. Artist shall perform all services and will furnish all supplies and materials as necessary for developing the Artwork Design(s) for the Work(s) at the Site. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. Agreement for Master Plan and Design of Public Art; Design Page 6 of 32 Lnhanccments For The Marine Creek Park Corridor Between the Cite (NFort Worth and Benito Huerta d. Artist shall meet and coordinate with the Project Consultant to ensure proper integration of the Works into the Site and into the construction documents. e. The specific location at the Site where the Work(s) shall be installed shall be mutually agreed upon by City, community group, and Artist. f. Upon request of City, Artist shall consult with a qualified art conservator and shall provide his written maintenance recommendations for the Work(s) from said conservator to the Contract Manager. g. Artist shall present the Preliminary Design(s) to the designated community group and City officials for input. h. Artist shall, thereafter, present the Final Design(s) to the appropriate City Committee, City staff, the City's Project Consultant, 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. 3.2. Implementation Budget Total. Artist shall develop Artwork Design(s) that are financially feasible relative to the budget for implementation. It is understood that the total budget for implementation of the Artwork Design(s) is TWENTY -FIVE THOUSAND EIGHT HUNDRED SIXTY -SIX DOLLARS AND NO CENTS ($25,866.00), which includes all costs for materials, labor, fabrication, delivery, installation, insurance, transportation, travel, Artist's fee, and all other associated costs for the Work(s). Artist shall provide a detailed budget, on the budget form attached hereto as Exhibit "C," for implementation of the Work(s) through possible artwork commission contract(s) with City, which contract(s) is subject to the approval of the Fort Worth City Council. Agreement tier Master Plan and Design of Puhlic Art; Design Page 7 of ;2 Enhancements For Fhe Marine Creek Park Corridor Between the C11N Of Fort Worth and Bcnito Huerta 3.3. City Assistance. Upon request by Artist, City shall promptly furnish all information and materials required by Artist to the extent that such materials are available. City, upon request by Artist, shall also provide correct scaled drawings of the Site, if available. 3.4. Final Design(s) Deliverables Within four (4) months after the Effective Date of this Agreement, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Section 3.4 to City for approval. Final Design(s) Deliverables shall consist of the following: a. Artist shall provide detailed, design illustrations of the Works for the Site, which 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. b. Artist shall provide a final written narrative for the Works, describing the following: (1) Recommendations for implementation of Park Design Enhancement elements; (2) Final Design(s) concepts; (3) Proposed materials, fabrication, and installation methods, including whether the Work(s) will be executed by the City's general contractor or by Artist; (4) Maintenance requirements for all elements of the Work(s) as dictated by Artist along with cost estimates for annual maintenance; and (5) Proposed public education program to be conducted by Artist at a time mutually agreed upon by the Parties. C. Artist shall provide comprehensive working drawings, detailing the means of installing all elements of the Work(s) on the Site, together with other such graphic material as may be requested by City to permit City to carry out structural design review. Upon City's request, these drawings must be signed and stamped by an Agreement for Master Ilan and Design of Public Arty Design Page 8 of 32 Enhancements For I he Marine Creek Park Corridor Between the Cite Of Fort Worth and Benito Iluerta engineer and /or architect licensed to work in the State of Texas as required by City, and Artist will obtain and furnish to the Contract Manager 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. Artist shall not be liable for the use of the drawings submitted under this section for any use other than the Final Designs. d. Artist shall provide a final budget for the Work(s) with written estimates attached for supplies and services to be provided by Artist, by Artist's contractor, or by others, including any remainder of Artist's fee, in an amount not to exceed $25,866.00. 3.5. Design Review. a. Upon completion of the Final Design(s) Deliverables, Artist shall meet with the appropriate City Committee, City staff, the City's Project Consultant, and other City boards or commissions, as appropriate, to present the Final Design(s), at dates and times mutually agreed upon for input. If more than one Final Design is developed pursuant to this Agreement, and the Final Designs cannot all be presented at the same meeting, then Artist may present each Final Design at separate meetings. b. Artist shall present the Final Design(s) to the FWAC for approval at a regularly scheduled meeting. If more than one Final Design is developed pursuant to this Agreement, and the Final Designs cannot all be presented at the same meeting, then Artist may present each Final Design at separate meetings. C. City may require Artist to make such revisions to the Final Design(s) as are necessary for the Work(s) to comply with applicable statutes, ordinances, or regulations of any Agreement for Master Plan and Design of Public Art Design Page 9 of 32 Enhancements For I he Marine Creek Park Corridor Between the City Ot Fort Worth and Benito Huerta governmental regulatory agency having jurisdiction over the Site for reasons of safety and security. d. City may also require Artist to make such revisions to the Final Design(s) as City deems necessary in its sole discretion. e. Within thirty (30) days of its receipt of Artist's submission(s) of the Final Design(s), City shall notify Artist of its approval, or disapproval, of such submissions and of each revision made in the Final Design(s). Revisions made pursuant to this section 3.5, upon approval by City, shall become part of the Final Design(s). f. If one or more of the Final Design(s) or any required revisions to one or more of the Final Design(s) are disapproved by City, Artist shall have thirty (30) days to resubmit the Final Design(s) in conformance with City's requirements,. g. If resubmitted materials for any or all Final Design(s) are not approved by City, this Agreement may be terminated in whole or in part at City's sole discretion, with payment for work performed on the disapproved Final Design(s) per the payment schedule in Article 4 up through the date of termination. Artist shall provide the disapproved Final Design(s) presentation materials to Contract Manager to become part of City's Public Art archive. h. Upon the expiration of the Term, as hereinafter defined, of this Agreement, negotiations for fabrication, delivery, and installation of the City- approved Final Design(s) shall commence and shall become part of the deliverables under any subsequent artwork commission contract(s) if funding is approved by the Fort Worth Council. i. Upon approval of any or all of the Final Design(s) by City, Artist shall provide the Final Design(s) 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 Agreement for Master Plan and Design of Public Art/ Design Page 10 of 32 Lnhanccmcnts For The Marine Creek Park Corridor Between the City OiFort Worth and Benito Iluerta retained for archival and exhibition purposes. Artist's Final Design(s) and all other work products under this Agreement shall become the property of City, without restriction on future use (See section 7). ARTICLE 4 COMPENSATION AND PAYMENT SCHEDULE 4.1. Compensation Total compensation to Artist under the Agreement shall not exceed FIFTEEN THOUSAND, EIGHT HUNDRED DOLLARS AND NO CENTS ($15,800.00), which shall constitute full compensation for any and all costs associated with this Agreement, including, but not limited to, services performed and materials furnished by Artist under this Agreement. Artist and City may amend this Agreement to allow for additional payment if additional services are required. 4.2. Payment Schedule City agrees to pay Artist in the following installments set forth below, each installment to represent full and final, non - refundable payment for all services and materials provided prior to the due date thereof: a. TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) upon execution of this Agreement. b. THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) within thirty (30) days after Artist presents all Preliminary Design(s) to the Community Group. C. THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) within thirty (30) days after Artist submits the Final Design Deliverables as required under Section 3.4 of this Agreement and makes presentation(s) of all Final Designs to the FWAC. Agreement for Master flan and Oesign of Puhlic Art; Oesign Page 1 1 ot'32 Enhancements For Fhe Marine Creek Park Corridor Between the Otc Of Fort Worth and Benito Huerta d. TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) within thirty (30) days after City's approval of all Final Design(s). e. THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) within thirty (30) days after Artist submits the Master Plan Deliverables as required under Section 2.2 of this Agreement and makes presentation(s) of the Master Plan to the FWAC. f. TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) within thirty (30) days after City's approval of the Master Plan. City may pay Artist up to EIGHT HUNDRED DOLLARS AND NO CENTS ($800.00) for engineering and consultant fees in order to fulfill the terms of this Agreement. Such payment shall be made upon receipt of an invoice from Artist with the original invoice (a retainer fee of up to 50% is allowed) for such services attached thereto. 4.3. Sales Taxes. City is a tax - exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the project. City shall supply Artist with the "Texas Sales Tax and Local Sales Tax Exemption Certificate" in substantially the same form as that attached hereto as Exhibit "D" for use by Artist in the fulfillment of this Agreement. 4.4. Artist's Expenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing /shipping charges and insurance on submissions to City, 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. agreement for Master Plan and Design of Public Art, Design Page 12 ot' ;2 Enhancements For I he Marine Creek Park Corridor Between the CitN Of Fort Worth and Benito Iluerta ARTICLE 5 TERM AND TERMINATION 5.1. Term This Agreement shall be in effect from the Effective Date, and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City. 5.2. Gratuities City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or given by Artist or any agent or representative to any City or Contract Manager official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. 5.3. Termination for Cause If either party to this Agreement shall fail to fulfill their duties and /or 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 5.3 in accordance with the dispute resolution process set forth in Article 6 of this Agreement. If the Parties cannot resolve the dispute(s), then the disputing party shall thereupon have the right to terminate this Agreement upon the delivery of a written "Notice of Termination" specifying the grounds for termination. Termination of this Agreement under this provision shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. Agreement for Master flan and Design of Public Art, Design Page 13 of 32 Enhancements For I he Marine Creek Park Corridor Bet"cen the Cith OtTort Worth and Benito Iluerta 5.4. 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, specifying the grounds for termination. b. If the termination is for the convenience of City, Artist shall have the right to fees for work performed, in which event 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 City by Artist under this Agreement prior to the date of termination, provided that no right to fabricate or execute the Work shall pass to City. C. If termination is for the convenience of Artist, Artist shall remit to City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to termination. 5.5. Incapacity of Artist a In the event of Artist's death or Artist becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to death or incapacity. All finished and unfinished drawings, sketches, photographs, models and work shall become property of City. b. Should Artist's Artwork Design(s) have been approved, in the event of termination under this Article 5.5, City shall have the right to complete the Work. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. This provision shall survive the termination or expiration of this Agreement. Agreement for Master Plan and Design of Public Art, Design Page 14 of 32 Enhancements For The Marine Creek Park Corridor Bet"ecn the CitN Ot Fort Worth and Benito Huerta ARTICLE 6 DISPUTE RESOLUTION If either Artist or City has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement, the Parties shall first attempt to resolve these issues through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the 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 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 Agreement for Master Plan and Deign of Puhlic Art, Design Page 15 of32 Enhancements 1-or I he Marine Creek Park Corridor Bem een the CnN Of 1 ort Worth and Benito Iluerta 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 5.3) ARTICLE 7 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 7.1 General a. Upon payment in full to Artist, the Artwork Design(s), Work(s), and all other work product under this Agreement shall become property of City, without restriction on future use, except as provided below. Artist shall retain copyright and other intellectual property rights in and to the Artwork Design(s) and /or Work(s). By execution of this Agreement, Artist grants to City a perpetual, irrevocable license to graphically depict or display the Artwork Design(s) and Work(s) for any non - commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Design(s) or Work(s) 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. City shall take title to all documents and /or drawings that constitute or are components of the Artwork Design(s) and /or Work(s) upon final approval of the Artwork Design(s). These documents and /or drawings will be retained for archival and exhibition purposes. C. Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Artwork Design(s) and /or the Work(s), except as those rights are limited by this Agreement. City may make and disseminate photographs, drawings, and other two - dimensional reproductions of the Artwork Design(s), Work(s), and accompanying materials for any municipal purpose. All reproductions by City lgrecmcnt for Muster flan and Design of Puhlic Art Design Page 16 of 32 Lirihanceinents For t he Marine Creek Park Corridor Retwcen the City Of I ort Worth and Benito Iluerta shall contain a credit to Artist and a copyright notice substantially in the following form: "© date, Artist's name." d. Nothing in this Agreement shall prevent Artist from using images of the Artwork Design(s) or Work(s) for marketing and promotional purposes in connection with Artist's business, provided, however, that Artist shall make its best effort to credit City for commissioning the Work(s) whenever possible. e. City is not responsible for any third -party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. 7.2 Artist's Address. Artist shall notify City of changes in Artist's address as set forth in Article 13. The failure to do so, if such failure prevents the City from locating the Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate the Artist when matters arise relating to Artist's rights. ARTICLE 8 WARRANTIES OF TITLE AND COPYRIGHT The Artist represents and warrants that: a. The Artwork Design(s) and /or Work(s) shall be the original product of Artist's sole creative efforts. b. The Artwork Design(s) and /or Work(s) are and will be unique and original, and do not infringe upon any copyright or the rights of any person; C. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork Design(s) and /or Work(s)or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; Agreement for Master Plan and Design of Public Art, Design Page 17 of 32 Enhancements For I he Marine Creek Park Corridor Bemeen the OtN Off ort Worth and Benito Iluerta d. The Artwork Design(s) and /or Work(s)(or duplicate thereof) have not been accepted for sale elsewhere; e. Artist has 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 9 ARTIST AS INDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of City. Artist shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of his /her officers, agents, employees, and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artist, his /her officers, agents, employees and subcontractors, and doctrine of respondent superior has no application as between City and Artist. ARTICLE 10 INDEMNIFICATION 10.1. General Indemnity a. ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING ATTORNEY'S FEES AND COSTS OF DEFENSE), Agreement for Master flan and Design of 11uhlic Art. Design Page 18 of 32 Enhancements I or I he Marine Creek Park Corridor Beth►een the City Of l ort \& orth and Benito I Iucrta 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 RECOEVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM ARTIST'S NEGLIGENT ACT, ERROR, OR OMMISSION AND /OR ARTIST'S SUBARTIST AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. b. Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained by Artist in connection with or incidental to performance under this Agreement. C. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. 10.2. Intellectual Property Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third party copyrighted works Agreement for Master Plan and Design of Public Art/ Design Page 19 of 32 Enhancements For Fhe Marine Creek Park Corridor Between the Cih (NFort Worth and Benito Iluerta by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artist. 10.3. Survival All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. ARTICLE 11 EQUAL OPPORTUNITY a. 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. 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 Agreement for Master Plan and Design of Public Art, Design Page 20 of 32 I-,nhanccments For The Marine Creek Park Corridor Between the ('itv Of Fort worth and Benito Hucrta other forms of compensations, and selection for training, including, but not limited to, apprenticeship. Artist agrees to post in conspicuous places, available to employees and applications for employment, notices to be provided by City setting forth the provision of this nondiscrimination clause. b. Artist shall, in all solicitation or advertisements for employment placed on or on behalf of 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. C. 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 Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be debarred from further agreements with the City of Fort Worth. ARTICLE 12 MISCELLANEOUS 12.1. Compliance The Artist shall comply with all Federal, state and local statutes, ordinances and regulations applicable to the performance of Artist's services under this Agreement. 12.2. 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. Agreement tier Mastcr Plan and Design of Public Arty Design Page 21 of 32 Enhancements For The Marine ('reek Park Corridor Between the ('its OtTort Worth and Benito I luerta 12.3. 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. 12.4. 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. 12.5. Governing Law and Venue If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 12.6. 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 Artist and their respective successors and permitted assigns. 12.7. 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. Agreement tiff Master Plan and Design of Public Art, Design Page 22 of 32 Enhancements For The Marine Creek Park Corridor Between the City Of Fort Worth and Benito Huerta 12.8 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. 12.9. 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. 12.10. 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. 12.11. 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 following delivery by the Agreement for Master Plan and Design of Public Art; Design page 23 of 32 Enhancements For I he Marine Creek Park Corridor Bcmeen the Cith Of Fort Worth and Benito Iluerta 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. 12.12. Captions Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 12.13 Right to Audit Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Work (collectively "Records ") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, the Artist shall make all Records available to the City at 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 Section 12.13 shall survive expiration or earlier termination of this Agreement. 12.14 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. 12.15 Survival Provision The provisions contained in Article 7 (Ownership and Intellectual Property Rights), 8 (Warranties of Title and Copyright), 9 (Artist as an Independent Contractor), and 10 (Indemnification) shall survive the termination or expiration of this Agreement. Agreement for Master Plan and Design of Public Art, Design Page 24 of 32 Enhancements For Fhe Marine Creek Park Corridor Between the Cith Of Fort Worth and Benito Huerta 12.16 Public Information Act Artist understands 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. Artist shall clearly indicate to City what information it deems proprietary. If City is required to disclose any documents that may reveal any of Artist's 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 Artist prior to disclosure of such documents, and give Artist the opportunity to submit reasons for objections to disclosure. City agrees to restrict access to Artist's information to those persons within its organization who have a need to know for purposes of management of this Agreement. City agrees to inform its employees of the obligations under this paragraph and to enforce rules and procedures that will prevent any un- authorized disclosure or transfer of information. City will use its best efforts to secure and protect Artist's 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 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. 12.17 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. Agreement for Master Plan and Design of Public Art Design Page 2S of 32 Enhancements For I he Marine Creek Park Corridor Bety een the Citri Uf Fort Worth and Benito tluerta 12.18. Time Extensions The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. ARTICLE 13 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: 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 Copies to: Sarah Fullenwider, City Attorney Office of the City Attorney 1000 Throckmorton Street, Third Floor Fort Worth, Texas 76102 Martha Peters, VP- Public Art Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, Texas 76107 Benito Huerta 1128 West Park Row Drive Arlington, TX 76013 [SIGNATURES ON THE FOLLOWING PAGE] Agreement for Mastcr Plan and Design of' Public Art Design Page 26 of' 32 I:nhancemcnts For The Marine Creek Park Corridor Hetwccn the City O1 Fort Worth and Benito Iluerta IN WITNESS HEREOF, the Parties hereto have executed this Agreement on the Effective Date. CITY OF FORT WORTH ARTIST i.!�___. by: Fernando Costa enito Huerta Assistant City Manager APPROVED AS TO FORM AND LEGALITY: Tyler F.2Wach Assistant City Attorney ATTESTED BY: - ��rrd� i'�.Zv'1 �f►� C � ASST , City Secretary Contract Authorization: No M &C Required Agreement for Master Plan and Design of Public Art i Design Enhancements For The Marine Creek Park Corridor Between the City Of Fort Worth and Benito Huerta �fjthciffi- F ;- -ogzn! r CITY t3Lt'KLiikRY FT. WORTH, TX Exhibit A: Park Design Enhancements mcminon �••.• �•••r -_ -_ M*w Strip Freeorrri' = "` emets �enr�riri Ele>irients Agreement tier Master Plan and Design of Puhlic .Art Design Page 28 of 32 Enhancements For I he Marine Creek Park Corridor Between the City OFFort Worth and Benito Huerta � a WN F k Nov i d E ac k Y� � Z b � t d x T1 b x + l a d ,ems . >. C pr � R 1 g N � a WN F k r� i d E ac k Y� � Z b t mini � a Exhibit C: Budget ARTIST'S FEE TRAVEL (For artists who five more than 50 miles from Fort Worth) Airfare Car Rental Per Diem Expenses at5_ perday Mileage at $� per mile INSURANCE AutoMired Vehicle Liability General Liability for Artist f Subcontractors Workers Comp. i Employees Liability Other, as applicable ADMINISTRATIVE EXPENSES PhonetFax Delivery;Sh piling (for correspondence, samples, models, drawings etc) Reprographic Service Supplies PROFESSIONAL CONSULTANT FEES (if applicable, drawing must be signed and sealed by a professional registered to practice in the State of Texas) Architect' Structural Engineer' Electrical Engineer` Conservow Photographer (for documentation of completed work)* Other* MATERIALS (Please attach a complete list of materials. itemize ati anticipated aspects and components with per unit cmt estimates) Materials' Total FABRICATION COSTS (Include and itemize all portions of subcontracted work and work to be completed by artist.) Artists Labor (_ hours at $_ per tuna) Total Subcontracted Labor' (Total) Facility/Equipment Rental (used exclusively for this project) related to fabrication SITE PREPARATION (Do not include coats covered by FWPA, City of Fort Worth or others) Test Drilling' Removal Landscapingllrrxjatum• Electrical Modifications' Water Wo"echanical Devices Other' (Revised May 2011) Agreement for Master Plan and Ocsign of Public Art- Design Page 30 of 32 Enhancements For The Marine Creek Park Corridor Between the Cit, Of Fort Worth and Benito 11 uerta TRANSPORTATION Materials to Fabrication Site Finished Work to Installation Site" Other" BASEMOUNTING Base Mounting Devices and Components FourdatimfFooting Otter INSTALLATION COSTS (Costs must include allowance for after hours installation, if applicable. Please attach a complete fist of equipment and individual estimates with this form) Subcontracted Labor* Scaffolding' Equipment Rental related to installation" Off -duty Pohce/SecurW Traffic Barriers' Storage Facility Rentar CRY Permits Display Devices Fireproofing' Site Restoration" Other' LIGHTING Designers* Fixtures* BLdbs* Site Preparation* InstallaboW GRAND TOTAL Please make any necessary notes here: Prepared By. Date* (Revised May 20`f1 Agreement for Master [']an and Design of Public Art Design Page 31 of 32 Enhancements For I he Marine Creek Park Corridor Bem een the Cite Of Fort Worth and Benito IlUerla Exhibit D: Sales Tax Exemption TEXAS CERTIFICATE OF EXEMPTION clai IT) an excalption fivin payrnetif of Sales and use tai e, fm the purchase t& taxable below, or on the attached order tw invoice, Description of ltms (aT an 3tt3CW better or Invoice) To He Purchased: I claim this exemption for the fcAlowEng rca-4m: Nam, of Exempt Organization: CITY OF FORT WORTH, TEXAS TEXAS SALES AND USE TAX PERMIT NUMBER 1-7.5-6000528-6 Projw for which materials wW supplies are purchased: I understand that I will be liable for payrncnt ofsajej tax, which inay bocome due for failure to comply with the prow ,lions of the state. city', an&or metropolitan transit authority sales and use tax laws and ctntiptroller rules regarding exeMpt Purchases, Liability fair the tax will be ticterrnmw by the price paid for the taxable iterns purchased or the fair market rental val uc fim the peri(A of time used- I und—dand that it is a inisdeimmor to give an exemption certificate to the scItCT for taxable itilns which I know, at the time of the purcliam will be used in a mannor other than that expensed in this cwificarc and, uport conviction- may be fined up to $5(mj per offe.11 Purchascu CITY OF FORT WORTH, TEXAS Street Addrm 1000 THROCKMORTON STREET Cil)., State, Zip Code: FORT, WORTH, TEXAS 76102 Sign He=: Date: .lung ll,2404 Phone- 817-31Q24517 Sales and use tax ,cx ernpriva oumbm- or -tax exempt" numbers do not exist. ibis certr ficate xlt<a ;tkl Fee furnislseif tr+ the sirplalFi�r< Ciia coat send tlac c«nlrfctc'd cx�aritiCate k> the. Agreement for Master Plan and Design 01A'Uhlic Art Design Page 32 ot'32 Frihancerricnis For I he Marine ('reek Park Corridor Ilet"cen the Cite Of Fort Worth and Benito I I uerta