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Contract 42294
CITY SECRETARY CONTRACT tNO.a__ ` AGREEMENT BETWEEN THE CITY OF FORT WORTH AND ETTY HOROWITZ FOR PRELIMINARY AND FINAL DESIGN OF PUBLIC ARTWORK This Agreement is entered into this a-\s�_day of Sip{-tm►x(, 2011, 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. 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, on March 5-6, 2010, Artist participated in a public art workshop with artists Jill Bedgood and Michael Pavlovsky and art teachers from Crowley ISD for the Summer Creek Corridor, as shown on the map attached herein as Exhibit "A," to develop approaches and concepts for public art, both functional and non-functional, that could involve students from nearby schools, which resulted in preliminary recommendations and thematic approaches for public art and design enhancements for the Summer Creek Corridor; WHEREAS, City is designing and constructing the new Far Southwest Community Center in Southwest Community Park�;�...-----`j Clz�r � 'Re 1 4T.X6R �,, jX _ Agreement between the City of Fort Worth and Etty Horowitz Pagel of 33 for preliminary and final design of public artwork WHEREAS, the Site was identified in the Long Range Public Art Plan for the 2004 CIP for inclusion of public art, and two percent (2%) has been earmarked for design and implementation of public art through the 2004 Capital Improvements Program(CIP); WHEREAS, the Fort Worth Art Commission (the "FWAC") has recommended the design for the Site in its Fiscal Year 2011 Annual Work Plan, which Fort Worth City Council approved on October 19, 2010 (M&C C-24554); WHEREAS, on February 14, 2011, the FWAC recommended additional funds from the public art fund to augment the public art budget for this Project; WHEREAS, the FWAC has recommended that Artist, in coordination with City's Project Consultant, be retained for design of an artwork for the Site that incorporates themes suggested in the Workshop; WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be designed. 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: I.I. Agreement — Means and includes this agreement between the City and Artist for Preliminary Design and Final Design of Public Art for the Site. 1.2. Artist— Means and includes Etty Horowitz and all other persons or entities for which she is legally responsible, including, but not limited to, her heirs, executors, administrators, legal representatives, successors, agents. contractors. subcontractors. subartists. and assigns. Agreement between the City of Fort Worth and Etty Horowitz Page 2 of 33 for preliminary and final design of public artwork 1.3. Artwork Design—Means and includes both the Preliminary Design and Final Design of the Work, which are defined in 1.3.a. and 1.3.b. below. 1.3.a. Preliminary Design—Means all preliminary drawings, sketches, prototypes, maquettes, models, narrative descriptions, budget estimates, and the like that are created by Artist in connection with this Agreement and/or any prior agreement between Artist and City for the Work. 1.3.b. Final Design — Means the Artist's final, proposed design of the Work for the Site, which is based upon the City-approved Preliminary Design 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 and shall include Artist's specifications for fabrication and installation of the Work. 1.4. Contract Manager— Means and includes the Arts Council of Fort Worth and Tarrant County, Inc., and all other persons or entities for which Contract Manager is legally responsible including, but not limited to, its officers, directors, employees, agents, subsidiary organizations, parent organizations, successor corporations, assigns, predecessors, stockholders, administrators, and related companies. 1.5. Community Group — Means and includes the group of community representatives and/or stakeholders selected to review the Artwork Design. 1.6. City — Means and includes the City of Fort Worth and its officers, representatives, agents, servants, and employees. 1.7. 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 between the City of Fort Worth and Etty Horowitz Page 3 of 33 for preliminary and final design of public artwork 1.8. Final Design Deliverables — Means and includes those items set forth in Article 2.6 of this Agreement that Artist is required to submit to City for its review and approval. 1.9. Parties—Means and includes City and Artist. 1.10. Preliminary Design Deliverables — Means and includes those items set forth in Article 2.4 of this Agreement that Artist is required to submit to City for its review and approval prior to proceeding to the Final Design phase of this Agreement. 1.11. 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. 1.12. Project Consultant — Means and includes the design firm/professional(s) hired by City to design the Site. 1.13. Site — Means and includes the new Far Southwest Community Center in Southwest Community Park located at 4680 McPherson Street, Fort Worth, Texas 76123, which is more particularly described on the map attached hereto as Exhibit "B" and made apart hereof for all purposes. 1.14. 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. Artist shall perform all services and will furnish all supplies and materials as necessary for developing the Preliminary Design and Final Design of the Work. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. Agreement between the City of Fort Worth and Etty Horowitz Page 4 of 33 for preliminary and final design of public artwork b. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work subject to review and input from the Community Group and approval by City as set forth in this Agreement. C. The specific location at the Site where the Work shall be installed shall be mutually agreed upon by City and Artist. d. Artist shall coordinate with Project Consultant to ensure proper integration of the Work into the Site and into the construction documents and to ensure that there is sufficient structural support and appropriate lighting for the Work. Upon request of City, Artist shall consult with a qualified art conservator and shall provide written maintenance recommendations for the Work from said conservator to the Contract Manager. e. Artist shall present the Preliminary Design and Final Design to Community Group and City officials for input and to the FWAC for review and approval at dates and times mutually agreed upon. 2.2. Implementation Budizet Total. Artist shall develop a Final Design that is financially feasible relative to the budget for implementation of the Final Design. It is understood that the budget for implementation of the Final Design is SIXTY THOUSAND NINE HUNDRED FIFTY DOLLARS AND NO CENTS ($60,950.00), which includes all costs for materials, labor, fabrication, delivery, installation, lighting, insurance, transportation, travel, remaining Artist's fee, and all other associated costs for the Work. Artist shall provide a detailed budget, on the budget form attached hereto as Exhibit "C," for the Work. Agreement between the City of Fort Worth and Etty Horowitz Page 5 of 33 for preliminary and final design of public artwork 2.3. 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. 2.4. Preliminary Design Phase Deliverables Within forty-five (45) calendar days 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 Article 2.4 to City for approval. Preliminary Design Deliverables shall consist of the following: a. Two conceptual design illustrations showing the proposed Work from two 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; b. A narrative description of the Artist's concept, proposed materials, fabrication, and installation methods, timeline for completion and maintenance, and conservation requirements; C. Installation diagram, including approximate weight of the Work, proposed base, footing, or attachment method(s) and, if applicable, location(s) for any electrical outlets and lighting fixtures; d. A budget for the Work with written estimates attached for supplies and services to be provided by Artist, by Artist's contractor, or by others, including the remainder of Artist's fee, in an amount not to exceed SIXTY THOUSAND NINE HUNDRED FIFTY DOLLARS AND NO CENTS ($60,950.00) (see Article 2.2); e. 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: Agreement between the City of Fort Worth and Etty Horowitz Page 6 of 33 for preliminary and final design of public artwork 2.5. Preliminary Design Review a. Upon completion of the Preliminary Design Deliverables, Artist shall meet with the designated Community Group, Project Consultant, 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. Artist shall present the Preliminary Design to the FWAC for approval at a regularly scheduled FWAC meeting. C. City may require Artist to make such revisions to the Preliminary Design as are necessary for the artwork to comply with applicable statutes, ordinances, or regulations of any governmental regulatory agency having jurisdiction over the Site for reasons of safety and security. d. City may also request revisions to the Preliminary Design as City deems necessary in its sole discretion. e. Within thirty (30) calendar days of its receipt of the Artist's submission of the Preliminary Design, the City shall notify the Artist of its approval, or disapproval, of such submission and of each revision made in the Preliminary Design. Revisions made pursuant to this Article 2.5, upon approval by City, shall become part of the Preliminary Design. If City requires any revisions to the Preliminary Design, Artist shall incorporate those revisions into the Final Design in conformance with City's requirements. Any revisions shall become part of the Final Design Deliverables if the Artist proceeds to the Final Design phase of this Agreement. f. If the Preliminary Design or any required revision is disapproved by City, Artist shall have thirty (30) calendar days to resubmit the Preliminary Design in conformance with City's requirement. Agreement between the City of Fort Worth and Etty Horowitz Page 7 of 33 for preliminary and final design of public artwork g. If resubmitted materials are not approved by City, this Agreement may be terminated at City's sole discretion, with payment for work performed per the payment schedule in Article 3 up through the date of termination. Artist shall provide the Preliminary Design presentation materials to City to become part of City's Public Art archive. h. If Artist's Preliminary Design is approved by City, then Artist's Preliminary Design shall be incorporated into this Agreement as an addendum, and shall become the basis for proceeding to the Final Design phase of this Agreement. i. Upon City's approval of the Preliminary Design, Artist 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. Artist's Preliminary Design and all other work product under this Agreement shall become the property of City, without restriction on future use (see Article 6). 2.6. Final Design Phase Deliverables. If City approves Artist's Preliminary Design and authorizes Artist to proceed to the Final Design phase of this Agreement, then, within sixty (60) calendar days after City authorizes Artist to proceed to the Final Design phase, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Article 2.6, to City for approval. Final Design Deliverables shall consist of the following: a. Two final design illustrations, which shall be approximately 20" x 30" and mounted on foam core and/or supplied in a high resolution digital format, showing the proposed Work from two vantage points with at least one illustration showing the Work's size and placement in relation to the Site; Agreement between the City of Fort Worth and Etty Horowitz Page 8 of 33 for preliminary and final design of public artwork b. A final written narrative for the Work, describing the following: (1) Final Design concept and timeline for completion; (2) Proposed materials, fabrication, and installation methods for all elements of the Work, including information regarding Artist's subcontractor(s), if any; (3) Maintenance requirements for all elements of the Work as dictated by Artist, along with cost estimates for annual maintenance; and (4) Proposed public education program to be conducted by Artist at a mutually agreed upon date and time. C. Comprehensive working drawings, detailing the means of installing all elements of the Work 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 engineer and/or architect licensed to work in the State of Texas as required by City. Artist will obtain and furnish to 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 Article for any use other than the Final Design. d.. A final budget for the Work with written estimates attached for supplies and services to be provided by Artist, by Artist's contractor, or by others, including the remainder of Artist's fee, in an amount not to exceed SIXTY THOUSAND NINE HUNDRED FIFTY DOLLARS AND NO CENTS ($60,950.00) (see Article 2.2). 2.7. Final Design Review. a. Upon completion of the Final Design Deliverables, Artist shall meet with the designated Community Group City staff, Project Consultant, and other City boards or commissions, Agreement between the City of Fort Worth and Etty Horowitz Page 9 of 33 for preliminary and final design of public artwork as appropriate, to present the Final Design, at a date and time mutually agreed upon, for input. b. Artist shall present the Final Design to the FWAC for approval at a regularly scheduled FWAC meeting. C. City may require the Artist to make such revisions to the Final Design as are necessary for the Work to comply with applicable statutes, ordinances, or regulations of any governmental regulatory agency having jurisdiction over the Site for reasons of safety and security. d. City may also require Artist to make such revisions to the Final Design as City deems necessary in its sole discretion. e. Within thirty (30) calendar days of its receipt of the Artist's submission of the Final Design, the City shall notify the Artist of its approval, or disapproval, of such submission and of each revision made in the Final Design. Revisions made pursuant to this Article 2.7, upon approval by City, shall become part of the Final Design. f. If the Final Design or any required revision is disapproved by City, Artist shall have thirty (30) calendar days to resubmit the Final Design in conformance with City's requirement. g. If resubmitted materials are not approved by City, this Agreement may be terminated at City's sole discretion, with payment for work performed per the payment schedule in Article 3 up through the date of termination. Artist shall provide the Final Design presentation materials to City to become part of City's Public Art archive. h. Upon the expiration of the Term, as hereinafter defined, of this Agreement, if the Final Design is accepted by City and funding is appropriated by the Fort Worth City Council, negotiations for fabrication. delivery, and installation of the Work shall commence. Agreement between the City of Fort Worth and Etty Horowitz Page 10 of 33 for preliminary and final design of public artwork which shall become part of the deliverables under the subsequent any potential artwork commission contract. i. Upon approval of the Final Design by City, Artist shall provide the Final 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. Artist's Final Design and all other work products under this Agreement shall become the property of City, without restriction on future use (see Article 6.1). ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation Total compensation to Artist under the Agreement shall not exceed EIGHT THOUSAND EIGHT HUNDRED FIFTY DOLLARS AND NO CENTS ($8,850.00), which shall constitute full compensation for any and all costs associated with the Agreement, including, but not limited to, engineering and consulting fees, and services performed and materials furnished by Artist under this Agreement. Artist and City may amend this Agreement to allow for additional payment if additional services are required. 3.2. Payment Schedule 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. THREE THOUSAND FIFTY DOLLARS AND NO CENTS ($3,050.00) upon execution of this Agreement. b. TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) within thirty (30) calendar days after Artist submits all of the Preliminary Design Deliverables required Agreement between the City of Fort Worth and Etty Horowitz Page I I of 33 for preliminary and final design of public artwork under Article 2.4 of this Agreement, makes a presentation(s) of the Preliminary Design to the FWAC, and City approves the Preliminary Design. C. TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) within thirty (30) calendar days after Artist submits all of the Final Design Deliverables required under Article 2.6 of this Agreement and makes a presentation(s) of the Final Design to the FWAC. d. ONE THOUSAND DOLLARS AND NO CENTS ($1,000.00) within thirty (30) calendar days after City's approval of the Final Design. City may pay Artist up to EIGHT HUNDRED DOLLARS AND NO CENTS ($800) for engineering and/or a conservator's consultation 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. 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 Work. City shall supply Artist with the "Texas Certificate of Exemption," in substantially the same form as that attached hereto as Exhibit "D," for use by Artist in the fulfillment of this Agreement. 3.4. Artist's Expenses Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on submissions to City, 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 between the City of Fort Worth and Ftty Horowitz Page 12 of 33 for preliminary and final design of public artwork ARTICLE 4 TERM AND TERMINATION 4.1. Term This Agreement shall be in effect from the Effective Date, and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City. 4.2. Gratuities City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or given by Artist or any agent or representative to any City or Contract Manager official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. 4.3. Termination for Cause If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this Article 4.3 in accordance with the dispute resolution process set forth in Article 5 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. 4.4. Termination for Convenience Agreement between the City of Fort Worth and Etty Horowitz Page 13 of 33 for preliminary and final design of public artwork 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, 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. 4.5. Incapacity of Artist a In the event of Artist's death or Artist becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to death or incapacity. All finished and unfinished drawings, sketches, photographs, models and work shall become property of City. b. Should Artist's Final Design have been approved, in the event of termination under this Article 4.5, 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. ARTICLE 5 DISPUTE RESOLUTION Agreement between the City of Fort Worth and Etty Horowitz Page 14 of 33 for preliminary and final design of public artwork 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 constitutes consent to sue. If the Parties cannot resolve the dispute through mediation, then either party Agreement between the City of Fort Worth and Etty Horowitz Page 15 of 33 for preliminary and final design of public artwork shall have the right to exercise any and all remedies available under law regarding the dispute. (See Article 4.3) ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1. General a. Upon payment in full to Artist, the Artwork Design, Work, and all other work product under this Agreement shall become the property of the City, without restriction on future use, except as provided below. Artist shall retain copyright and other intellectual property rights in and to the Artwork Design and/or Work. By execution of this Agreement, Artist grants to the City a perpetual, irrevocable license to graphically depict or display the Artwork Design and/or Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Design and/or Work intended to promote or benefit City, its public services or its public purposes, 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, which constitute or are components of the Artwork Design and/or Work, upon final approval of the Preliminary Design and/or Final Design. 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 and/or Work, except as those rights are limited by this Agreement. City may make and disseminate photographs, drawings, and other two-dimensional reproductions of the Artwork Design and/or Work and accompanying materials for any municipal purpose. Agreement between the City of Fort Worth and Etty Horowitz Page 16 of 33 for preliminary and final design of public artwork All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: "© date, Artist's name." d. Nothing in this Agreement shall prevent the Artist from using images of the Artwork Design and/or Work for marketing and promotional purposes in connection with the Artist's business; provided, however, that Artist shall make its best effort 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 Artist's copyright and not responsible for protecting the intellectual property rights of Artist. 6.2. Artist's Address Artist shall notify City of changes in Artist's address set forth in Article 12. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights. ARTICLE 7 WARRANTIES OF TITLE AND COPYRIGHT The Artist represents and warrants that: a. The Artwork Design and/or Work shall be the original product of the Artist's sole creative efforts. b. The Artwork Design and/or Work is and will be unique and original, and do not infringe upon any copyright or the rights of any person or entity; Agreement between the City of Fort Worth and Etty Horowitz Page 17 of 33 for preliminary and final design of public artwork C. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork Design and/or Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; d. The Artwork Design and Work (or duplicate thereof) have not been accepted for sale elsewhere; e. The Artwork Design and Work are free and clear of any liens from any source whatsoever; f. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and g. All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill and diligence. ARTICLE 8 ARTIST AS INDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of City. Artist shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of his/her officers, agents, employees and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artist, his/her officers, agents, employees and subcontractors, and doctrine of respondent superior has no application as between City and Artist. ARTICLE 9 Agreement between the City of Fort Worth and Etty Horowitz Page 18 of 33 for preliminary and final design of public artwork INDEMNIFICATION 9.1 GeneralIndemnity 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, 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 NEGLIGENT ACT, ERROR, OR OMMISSION OF ARTIST 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. Agreement between the City of Fort Worth and Etty Horowitz Page 19 of 33 for preliminary and final design of public artwork C. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. 9.2. Intellectual Property Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY, ITS REPRESENTATIVES, OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS 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 WORK 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. 9.3. Survival All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. Agreement between the City of Fort Worth and Etty Horowitz Page 20 of 33 for preliminary and final design of public artwork ARTICLE 10 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 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 11 MISCELLANEOUS Agreement between the City of Fort Worth and Etty Horowitz Page 21 of 33 for preliminary and final design of public artwork 11.1. Compliance Artist shall comply with all Federal, state and local statutes, ordinances and regulations applicable to the performance of Artist's services under this Agreement. 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 the 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. Governiniz Law and Venue If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 11.6. Successors and Assigns Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the other party, and any attempted assignment. sublease or transfer of all or any part Agreement between the City of Fort Worth and Etty Horowitz Page 22 of 33 for preliminary and final design of public artwork hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and their respective successors and permitted assigns. 11.7. No Third-Party Beneficiaries The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 11.8 Severability If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 11.9. Force Maieure It is expressly understood and agreed by the parties to this Agreement that, if the performance of any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather; governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots; material or labor restrictions; transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. 11.10. Contract Construction Agreement between the City of Fort Worth and Etty Horowitz Page 23 of 33 for preliminary and final design of public artwork 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 City to fulfill its obligations under this Agreement, City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 11.12. Captions Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 11.13 Right to Audit Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Work (collectively "Records") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, the Artist shall make all Records available to the City at 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 11.13 shall survive expiration or earlier termination of this Agreement. Agreement between the City of Fort Worth and Etty Horowitz Page 24 of 33 for preliminary and final design of public artwork 11.14 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 City under City's M/WBE ordinance. 11.15 Survival Provision The provisions contained in Articles 6 (Ownership and Intellectual Property Rights) 7 (Warranties of Title and Copyright), 8 (Artist as Independent Contractor), and 9 (Indemnification) shall survive the termination or expiration of this Agreement. 11.16 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 unauthorized 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 Agreement between the City of Fort Worth and Ftty Horowitz Page 25 of 33 for preliminary and final design of public artwork 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 Copies to: Sarah Fullenwider, 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 Agreement between the City of Fort Worth and Etty Horowitz Page 26 of 33 for preliminary and final design of public artwork Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, Texas 76107 2. ARTIST Etty Horowitz 6628 Sahalee Drive Fort Worth, Texas, 76132 [SIGNATURES APPEAR ON THE FOLLOWING PAGE] Agreement between the City of Fort Worth and Etty Horowitz Page 27 of 33 for preliminary and final design of public artwork IN WITNESS HEREOF, the Parties hereto have executed this Agreement on the Effective Date. CITY OF FORT WORTH ARTIST by: 4� 6rUW t Fernando Costa Etty Horo itz Assistant City Manager Individual APPROVED AS TO FORM AND LEGALITY: Tyler F. Tach Assis t City Attorney ATTESTED BY: ,ao� ORT' X�po0-061090"Q oQ •Ay . u 0 Marty Hendrix o o° City Secretary 00 o0000000 ° �c 4Q Contract Authorization: No M&C Required OFFICIAL RECORD CITY SECRETARY i __FT. WORTH, TX 1Urccnu•nt hCtNOM the l its 01 1 0It vAOHII Mid I tt\ I11110\NIt/ too hrchmmmN and Imal dcagn of huhlic ar voik Exhibit A: Summer Creek Corridor Master Plan Site �,.tt to `i ,� ..�t 4 � ♦ v F -' � ,� r ,,vFI4 , Id.Ri..,.... r ° fxai b 1 z. C nna an Nisi Oa 7? ti Ai (e Yi >€ foi,t, t i 1QEE 1 t�h ? yKrtorvi iut R CPIumbut Tr ». 10 E, ., n S I i Rivlr r ....I j .... o �b � .Ec .. aunLt€ + r h ........ . Ya 3 Pa tyre Rid a Ot c m m.. ......... a34en Norn�` ��� d � 6u6e�ry Tale Cave r s Agreement between the City of Fort Worth and Etty Horowitz Page 29 of 33 for preliminary and final design of public artwork Exhibit B: Site CalumbusTt �CNuti►bius Ti � .... ��+ d1ori y jU ""pt 6 to ... AT IYT� p p r! dei r�st @ , Fj" P p� F unto R#tfytrrFort » Worth � L-WRWnpttRd yRAin aw: Cr#rdc Btu a i I' J�r��nweq�� 1 � - of rWorth-4# 4 eatb"3 rty Tito rive ►-... i II I i . I i I I i RIM i 6� I I Agreement between the City of Fort Worth and Etty Horowitz Page 30 of 33 for preliminary and final design of public artwork Exhibit C: Implementation Budget FORTav+�)t�TTEI Pit PROM >IIIIFrxaET Please 4am��e t1>f wed attadl a.s(gned rec4l(4 , £ cmoos vo p�urs ilk cesfs(naardtlYts decignatedwttect`}= utrtaasssttt atsah :a>�±7t �I aslltytA�e z #ed. ` .: AFMST'S rEE(16%) TRAVEL (For artists who live more than 50 miles from Fort Worth) Airfare Car Rental Per Diem Expenses at$._..per day IMleage at$_par mile INSURANCE AutolWired Vehicle Lbbility General U*11ityfor Artist ISubcontractor* Workers Comp.I Employer's Liability Other,as applcabe ADMINISTRATIVE EXPENSES Phonrr/Fax Delivery?Shipping(for correspondence,samples,models,arawirw etc) Refrographie service Copyright Registration Supplies PROFESSIONAL CONSULTANT FEES (if applicable,draping rest be signed and sealed by a professional registered to practice In the State of Texas) Ardvtecr Structural Engineer' E*Viral Engine Conservator Photographer(for documentation of completed work)- Other' MATERIALS (Please attach a complete list of materials.Itemize all anticipated aspects and components with per unit cost estimates) Materials'Total Cost increases:Projected increase in Cost Materials 12 Moms In Fuhre FABRICATION COSTS pnctude and itemize all portions of subcontracted work and work to be completed by areet.) Arftrs Labor(...._,hours at$ per hour)Total Subcontracted Labor'(Total) FacititySquipment Rental(used exclusively for this project)related to fabricaUat Cost Increases Projected increase in Cost Fabrication 12 Months In Fuhre SITE PREPARATION (Do not include coats covered by FW PA,City of Fort Worth or of am) Test Drillhtg' Removal' Landscapinomgelon' Agreement between the City of Fort Worth and Etty Horowitz Page 31 of 33 for preliminary and final design of public artwork Electrical Modifications' Water WorklModianical Devices Dthw Cosi Increases:Projected Increase In Cost Site Preparation 12 Months In Future TRANSPORTATION Materials to Fabrication Site' Finished Work to Installation Site' i fie Cost Increases?:Pr�ected Increase In Cost Transportation 12 Months in Fuge BASE/MOUNTING Base Mounting Devices tired Components Foun datiott'Pooting Other Cost Increases:Projected Increase in Cost MotmtinglFooting 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 form) 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' Futures' Bulbs' Site Preparation` Installation' Cost Increases:Projected Increase in Cost Lighting 12 Months In Future GRAN©TOTAL(Including projected cost Increase,N any) Please make anynacessarynotas hare: Prepared By: Date: Agreement between the City of Fort Worth and Etty Horowitz Page 32 of 33 for preliminary and final design of public artwork Exhibit D: Sales Tax Exemption TE, S FIFICATE OF EXEMPTION I claim an exemption from paunietit of salsa and use taxes fot the purchase of taxable itons described helots or on the attached order or invoice. Description of Items(or an attached order or Invoice)To Be Purchased. I claim this exctttptio n for the following rca*m; Name of Exempt Organization- C1 TV OF FORT WORTH,TEXAS TEXAS SALES AND USE TAX FE MIT NUMBER 1.75-600152M Projett for which materials aril supplies are purchased: I undertattd Haat!will be liable for pay „r"cat of sales tax,which may bec=ome due for failure.tea comply with the provisions of the slate,city,andbr metropolitan transit authority lit and use tat laws and comptroller rules regan ing exempt purchases, Liability for the tax will be determiner by the price paid for the taxable stents purchased or the fair market rental value Iitr the period of time used_ I understand that it is a mi"sdettneanor to give an exemption certificate to the seller for taxable items which I kxwwv at the time of the purebase,will be used in a mariner ether than that expensed in this ccrtificate and,upon eoaraviction may be tined up to S5W per offense. Tat E+teirttti�tatux I3vtc to d3ein a tt+�rtal Putzt� Purchased': CITY 00 PORT WORTH,TEXAS Street Address: 1000 THRcrcKt+IOKTON STREET City.State.:Zip e=atie:FOJR'K WORTH,TEXAS 76102 S t s Here hate: Junc 1 i, 9109 Phone-, S. This certificate ekes iiot requirr a numher to Ede valid. Sales and use tax•'cxerttptron tttiMbUT<"or"tax exempt-numbers do not exist. This certificate should he furnished to the suppliet Do ra?t send the camtplcitA"-niticate tee the C4 wtiptnil ter of Puhlic Accounts. Agreement between the City of Fort Worth and Etty Horowitz Page 33 of 33 for preliminary and final design of public artwork