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HomeMy WebLinkAboutContract 46131 on q CONTRACT AGREEMENT BETWEEN THE CITY OF FORT WORTH AND JOHN CHRISTENSEN FOR FINAL DESIGN AND COMMISSION OF PUBLIC ART FOR HISTORIC 1 ANDLEY URBAN VILLAGE This Agreement is entered into this/ day of I(/ j -; 2014, by and between the City of Fort Worth, a home-rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager, and John Christensen, an individual who works at 500 W St. Elmo Road, Austin, Texas 78745. 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,the City is currently implementing street,sidewalk,and streetscape improvements in the 6400-6600 blocks of East Lancaster Avenue,the Historic Handley Urban Village(between Forest and Handley); WHEREAS, funds for the project have been allocated from the Public Art Fund and the Project was included in the Fiscal Year 2014 Annual Work Plan and Budget, adopted by the Fort Worth City Council on November 12, 2013 (M&C C-26557) as part of the City's agreement with the Contract Manager for administration of the public art program; WHEREAS, on September 20, 2013, the City entered into a contract with Artist to develop preliminary artwork design(s)for the Site(Fort Worth City Secretary Contract No. 44810); WHEREAS, on March 17, 2014, the Fort Worth Art Commission (FWAC) approved the Artist's Preliminary Design, and recommended that Artist be retained to develop a Final Design based upon the Preliminary Design for public artwork to be incorporated into the Site, and, upon City approval, fabricate, m deliver,and install the Work at the Site; and M rn WHEREAS, the Work shall be installed on the Historic Handley Development Corporation's mproperty on the corner of East Lancaster Avenue and South Handley Drive, (6600-6700 blocks East v z Lancaster Avenue, Fort Worth, Texas/1001 South Handley Drive, Fort Worth, Texas 76112), along the East 0 Lancaster frontage road, contingent upon the execution of an easement agreement between the City and the Historic Handley Development Corporation; 0 WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be designed, fabricated, delivered, and installed to promote the integrity of Artist's ideas and statements as VVECORD Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village ((- 11! 1 $ Execution Copy 10/29/14 l ` lI`t� U j IV represented by the Work. NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth,the sufficiency of which is hereby acknowledged,agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement,the following terms shall have the meanings as set forth below: 1.1. Agreement — Means and includes this Agreement between the City and Artist for Final Design and Commission of public artwork for the Site. 1.2. Artist—Means and includes John Christensen. 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 were created by Artist in connection with the Preliminary Design Contract, depictions of which are attached hereto as Exhibit"A"and incorporated herein for all purposes. 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/or its officers,directors,or employees. 1.5. City—Means and includes the City of Fort Worth,Texas. 1.6. Effective Date — Means and includes the date represented in the first paragraph of this Agreement,which shall be the official date of execution of this Agreement. 1.7. Execution Phase—Means and includes fabrication, delivery,and installation of the Work. 1.8. Final Acceptance - Means City's written acknowledgement to Artist that all services for fabrication, delivery, and installation of the Work have been completed in accordance with the terms of this Agreement. 1.9. Final Design Deliverables—Means and includes those items set forth in Article 2.4 of this Agreement that are required for City's review and approval. 1.10. Parties—Means and includes City and Artist. Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 2 of 38 Execution Copy 10/29/14 1.11. Project — Means and includes the capital improvement or public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement. 1.12. Project Stakeholders — Means and includes the appropriate City Council Member(s), and their appointed community representatives and the Fort Worth Art Commission's appointed representative and others as may be appropriate. 1.13 Schedule - Means and includes a written plan of procedure for completion of fabrication, delivery, and installation of the Work,including,but not limited to,the submission of progress reports. 1.14. Site —Means and includes the easement acquired by the City on the Historic Handley Development Corporation's property on the corner of East Lancaster Avenue and South Handley Drive, (6600-6700 blocks East Lancaster Avenue,Fort Worth,Texas/1001 South Handley Drive,Fort Worth, Texas 76112), which is more particularly described in Exhibit "A," attached hereto and incorporated herein by reference for all purposes. The Site will also be more particularly described in the easement agreement between the City and the Historic Handley Development Corporation once the survey is complete. 1.15. Work—Means and includes the finished object(s) of art and design that are the subject of this Agreement,or any intermediary stage of completion of such work. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Artist Selection. City and Artist acknowledge that Artist's Preliminary Design was reviewed and approved by the FWAC on March 17,2014, and is the basis for executing this Agreement with Artist. 2.2. Scope of Services. a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary for developing the Final Design of the Work and for providing the Final Design Deliverables. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and input from the Project Stakeholders and approval by City as set forth in this Agreement. C. Artist's Final Design for the Work shall utilize epoxied steel and EPS foam with a polyurea coating and shall be based on the Preliminary Design,which approximates a circa 1930 toy train,with a cube shaped base, topped with a section of rail, a stylized steam locomotive and passenger/mail car stacked in a vertical column and pointing down, with the overall height being approximately twenty (20) feet to include a contrasting graphic panel articulating windows and text and a footing and lighting for the Work. Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 3 of 38 Execution Copy 10/29/14 F d. Artist shall provide the City with a land survey of the Site that is prepared by a surveyor acceptable to both the City and the Historic Handley Development Corporation. The land survey shall be subject to the City's and the Historic Handley Development Corporation's approval prior to any payment for such services. The survey will be incorporated into the City's easement agreement with the Historic Handley Development Corporation for placement of the Work at the Site. e. Artist, upon request of Contract Manager, shall provide information and/or attend meetings with appropriate City staff for purposes of risk assessment, safety review, sighting of the Work, and permitting. f. Upon request of City,Artist shall provide written maintenance recommendations for the Work to the Contract Manager. g. Artist shall present the Final Design to the appropriate City committee, City staff, Project Stakeholders, and other City boards or commissions, as appropriate, for input and to the FWAC for review and subsequent approval determination at dates and times mutually agreed upon. h. Artist shall participate in one public education event in Fort Worth at a mutually agreed upon date and time. L Artist shall install the Work on dates and times mutually agreed upon by Artist and City. j. Artist shall make a minimum of three (3)trips to Fort Worth, Texas for meetings, presentations and installation as indicated above. Additional trips, if required per this Article, may be negotiated and agreed upon in writing by City and Artist. k. For the duration of this Agreement, any publicity related to the Work at any stage under this Agreement shall be coordinated through the Contract Manager. Artist should get the Contract Manager's consent in writing prior to engaging in publicity for the Work. 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. City will be responsible for acquiring an easement for the Site from the Historic Handley Development Corporation. 2.4. Final Design Deliverables. a. Within three (3) months after the Effective Date, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Article 2.4 to City for approval. Final Design Deliverables shall consist of the following: (1) The survey of the Site as outlined in Article 2.2(d)of this Agreement. (2) Detailed, design illustrations of the Work for the Site, which shall be at least twenty (20) inches by thirty (30) inches and mounted on foam core and/or in a high resolution digital Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 4 of 38 Execution Copy 10/29/14 format,such as JPEG or TIF files, showing the proposed Work from multiple vantage points with at least one illustration showing the Work's size and placement in relation to the Site. (3) A final written narrative of the Work, describing the following: (1) the Final Design concepts 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, for the Work; (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 or activity to be conducted by Artist at a time mutually agreed upon by the Parties. (4) A detailed budget, on the budget form attached hereto as Exhibit "C," for fabrication and installation of the Work in an amount not to exceed FIFTY THREE THOUSAND DOLLARS AND NO CENTS ($53,000.00), which includes all costs for survey, materials, labor, engineering, fabrication, delivery, installation, insurance, transportation, remaining Artist's fee,travel,and all other associated costs for the Work. (5) Comprehensive working drawings,detailing the means of installing all elements of the Work on the Site, together with other such graphic material to permit City to carry out structural design review. Professional Liability Insurance is required in all circumstances for on-site artwork requiring engineering and/or architectural services. City will conduct a review of structural design and other related graphic material prior to installation of the Work. Upon City's request, drawings must be signed and stamped by an engineer and/or architect licensed to work in the State of Texas. Artist will provide the Contract Manager a certificate of insurance for each licensed professional and provide City with a thirty (30) calendar day notice of cancellation of any policy required hereunder. 2.5. Final Design Review. a. Upon full completion of the Final Design Deliverables, Artist shall present the Final Design to the FWAC for review and input at a regularly scheduled FWAC meeting. b. After presenting to the FWAC for initial input, Artist shall meet with the designated Project Stakeholders, City staff, and other City boards or commissions, as appropriate, to present the Final Design,at a date and time mutually agreed upon,for input. C. Artist shall then present the Final Design to the FWAC for approval at a regularly scheduled FWAC meeting. d. City shall notify Artist of its approval, or disapproval,of the Final Design, either in whole or in part, within thirty(30)business days of Artist's presentation to the FWAC. Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 5 of 38 Execution Copy 10/29/14 e. If City disapproves of the Final Design, either in whole or in part, then City shall inform Artist of each revision to be made to the Final Design. City may require Artist to make such revisions to the Final Design as City deems necessary in its sole discretion and/or for the Work to comply with applicable statutes, ordinances, or regulations of any governmental regulatory agency having jurisdiction over the Site for reasons of safety and security. f. Artist shall have thirty (30) calendar days from the date City informed Artist of the revision(s) to present the revised Final Design in conformance with City's requirements. g. If City disapproves of the resubmitted Final Design, any further Final Design resubmissions will be by mutual agreement of the Parties and subject to the procedures and terms in this Article. If the Parties desire not to continue with the resubmission process, then this Agreement will automatically terminate, with payment for work performed per the payment schedule in Article 3 up through the date of termination. h. If Artist's Final Design is approved by City,then Artist's Final Design shall be incorporated into this Agreement as an addendum, and shall become the basis for proceeding to the Execution Phase of this Agreement. i. Upon City's approval of the Final Design, 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 product under this Agreement shall become the property of City,without restriction on future use(see Article 6). 2.6. Execution of the Work. a. If City approves Artist's Final Design and authorizes Artist to proceed to the Execution Phase of this Project,then Artist shall furnish to the Contract Manager a written Schedule within ten(10)business days after such authorization by the Parties. After written approval of the Schedule by City, Artist shall fabricate, deliver, and install the Work in accordance with such Schedule. Schedule changes may be accomplished by written agreement between Artist and City. b. City and/or Contract Manager, upon written request, shall have the right to review the Work during its fabrication and/or request visual documentation of the fabrication. Artist shall, upon written request by the City and/or Contract Manager, provide a written progress report detailing the progress made toward completion of the Work and the remainder of work to be done to complete the Work. Artist shall comply with any request made by the City and/or Contract Manager pursuant to this Article 2.6 within thirty(30)calendar days after receipt of the written request. C. Artist shall complete the fabrication of the Work in accordance with the City-approved Final Design. Artist shall present to the Contract Manager, in writing, for further review and approval, any changes Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 6 of 38 Execution Copy 10/29/14 in the scope, design, color, size, material, or texture of the Work. The Contract Manager, in its discretion, shall determine whether the changes are significant and whether the changes conform to the City-approved Final Design. If the Contract Manager, in its sole discretion, determines that the changes are significant and do not conform with the City-approved Final Design, then the Contract Manager shall, in light of the Final Design, determine whether a significant change requires City approval. If the Contract Manager determines that the significant change(s) requires City approval, then the change(s) may be presented to the FWAC for review and approval at a regularly scheduled or special meeting of the FWAC. If any disputes arise thereafter, the Parties shall first attempt to resolve those disputes in accordance with the dispute resolution process set forth in Article I 1 of this Agreement. 2.7. Delivery and Installation. a. Construction of the Site, including, but not limited to, the design, engineering, and labor associated with preparing the Site to receive the Work and creating a footing for the Work shall be performed by Artist or his subcontractors, and shall be done in accordance with the specifications jointly agreed to by Artist,the City and the Historic Handley Development Corporation. b. Artist shall not commence any delivery or installation operations unless and until the City secures an easement from the Historic Handley Development Corporation for the Site. C. Artist shall abide by all terms and conditions of said easement between the City and the Historic Handley Development Corporation pertaining to delivery and installation of the Work at the Site. d. Artist shall notify City, through its Contract Manager, in writing, when fabrication of the Work is completed and ready for delivery and installation at the Site. e. Artist is responsible for installing all elements of the Work. Artist shall coordinate the installation of the Work with City, Historic Handley Development Corporation and Contract Manager to ensure proper installation with the Schedule. Delivery and installation activities may not commence until written permission is delivered to Artist by the City. f. Should Artist complete the Work in advance of the execution of the easement agreement or the Site, Artist shall store the Work at no expense to City until such a time as both are completed and the Contract Manager notifies Artist that installation may commence. g. Artist shall be responsible for all costs associated with the materials, fabrication, and installation of the Work, including,but not limited to, footing,equipment rentals,transportation, and labor. h. Artist is responsible for obtaining and paying for all necessary permits. i. Artist, individually and through its subcontractors, including its fabricator, shall take all necessary precautions to protect and preserve the integrity and finish of the Site while delivering and installing the Work. If City determines, in its sole discretion, that Artist or Artist's subcontractors have Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 7 of 38 Execution Copy 10/29/14 damaged the Site,then City shall inform Artist, in writing,of the damage. Artist, at its own expense, shall have thirty (30) calendar days from receipt of City's written notice to repair the damage to the Site to the satisfaction of City. If Artist fails to repair the damages to the satisfaction of City within thirty (30) calendar days after receipt of the notice, or within the deadline otherwise agreed to by the parties,then City shall have the right to deduct the cost of repairs from any remaining payment due to Artist under this Agreement, which shall be in addition to any and all other rights and remedies available to City at law or in equity. j. Upon City's request, prior to installation of the Work, Artist shall consult with a qualified art conservator and provide to the Contract Manager written instructions for appropriate maintenance and preservation of the Work on the form attached hereto as Exhibit "D" (Technical and Maintenance Record). The appropriate maintenance and preservation instructions shall not be substantially different from the maintenance and preservation anticipated and conveyed to City for the Work in the final design phase for the Work. [NOTE: The written instructions provided during the final design phase of this project may fulfill all or part of this requirement to the extent that such instructions represent the final Technical and Maintenance Record]. 2.8. Post-installation. a. Within thirty (30) calendar days after the installation of the Work, Artist shall furnish Contract Manager with a set of at least ten (10) high-resolution digital images(.tiff format) and ten(10) low- resolution digital images (.jpeg format) showing the Work from multiple vantage points as selected by Contract Manager,to document the Work after the Work is installed. b. Artist shall make his/her best efforts to be available at such time or times as may be agreed between City and Artist to attend any inauguration or presentation ceremonies relating to the transfer of the Work to City. City shall use its best efforts to arrange for publicity for the completed Work in such art publications and otherwise as may be determined between City and Artist as soon as practicable following installation. 2.9. Final Acceptance. a. Artist shall notify City and Contract Manager, in writing, when all services for fabrication, delivery, and installation of the Work have been completed in accordance with the terms of this Agreement. Included in such notice from Artist shall be an affidavit, attached hereto as Exhibit "E" (Affidavit), certifying that all bills relating to services or supplies used in the performance of this Agreement have been paid. b. City shall notify Artist, in writing,of its Final Acceptance of the Work. C. Final Acceptance shall be effective as of the earlier to occur of(1) the date of City's notification of Final Acceptance; or, (2)the thirty-fifth(35`h) calendar day after Artist has sent the written notice to Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 8 of 38 Execution Copy 10/29/14 City required under this Article 2.9 unless City, upon receipt of such notice and prior to the expiration of the thirty-five (35) calendar day period, gives Artist written notice specifying and describing anything that has not been completed pursuant to this Agreement. 2.10. Risk of Loss. The risk of loss or damage to the Work shall be borne by Artist prior to Final Acceptance, and Artist shall take such measures as are necessary to protect the Work from loss or damage until Final Acceptance, including, but not limited to, the purchase of property loss insurance, except that the risk of loss or damage shall be borne by City or its agents prior to Final Acceptance during such periods of time as the partially or wholly completed Work is in the custody, control, or supervision of City or its agents for the purposes of moving,storing,or performing any other ancillary services to the Work. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Total compensation to Artist under the Agreement shall be an amount up to FIFTY THREE THOUSAND DOLLARS AND NO CENTS ($53,000.00), which shall constitute full compensation for any and all costs associated with this Agreement, including, but not limited to, land surveying costs, engineering and consulting fees, insurance, storage costs, all travel expenses, 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. a. City agrees to pay Artist in the following installments set forth below, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof: (1) FIVE THOUSAND DOLLARS AND NO CENTS ($5,000.00) upon execution of this Agreement. (2) FIFTEEN THOUSAND DOLLARS AND NO CENTS ($15,000.00) within thirty (30) days after Artist submits the Final Design Deliverables, as required in Article 2.4. of this Agreement, and the Final Design is approved by the FWAC. (3) TEN THOUSAND DOLLARS AND NO CENTS ($10,000.00) upon the Contract Manager's verification that fabrication of the sculpture is 100% complete and ready to install. (4) TEN THOUSAND DOLLARS AND NO CENTS ($10,000.00) upon the Contract Manager's verification that the sculpture is installed on the site. Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 9 of 38 Execution Copy 10/29/14 (6) FIVE THOUSAND DOLLARS AND NO CENTS ($5,000.00) within thirty-five (35) calendar days after Final Acceptance and receipt by City of such documentation it may require concerning payment of supplies and services rendered to Artist[see Article 2.9]. (7) City may pay Artist up to THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) for surveying fees, including the actual cost of the survey and an administrative fee of twenty percent(20%) 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 fifty percent(50%) is allowed for such services attached thereto. (8) City may pay Artist contingency funds in an amount up to FIVE THOUSAND DOLLARS AND NO CENTS ($5,000.00) for costs associated with the Work that are incurred by the Artist due to unforeseen changes in fabrication or installation costs, including an administrative fee of twenty percent (20%). Such payment will be made upon (i) receipt of supporting documentation by the Contract Manager from the Artist and(ii) approval by the Contract Manager of the additional costs. 3.3. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Project. City shall supply Artist with the "Texas Certificate of Exemption," in substantially the same form as that attached hereto as Exhibit"F"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 on submissions to City and/or Contract Manager, insurance, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 4 WARRANTIES 4.1. Warranties of Title and Copyright. a. Artist represents and warrants that: (1) the Artwork Design and/or Work shall be the original product of Artist's sole creative efforts; (2) the Artwork Design and/or Work is and will be unique and original and does not infringe upon any copyright or the rights of any person; Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 10 of 38 Execution Copy 10/29/14 (3) Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Artwork Design and/or Work or any element thereof or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; (4) the Artwork Design and/or Work (or duplicate thereof) has not been accepted for sale elsewhere; (5) the Artwork Design and/or Work is free and clear of any liens from any source whatsoever; (6) Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and (7) all services performed hereunder shall be performed in accordance with all applicable laws, regulations,ordinances,etc.,and with all necessary care,skill and diligence. 4.2. Warranties of Quality and Condition. a. Artist represents and warrants that all work will be performed in accordance with professional "workmanlike" standards and free from defective or inferior materials and workmanship (including any defects consisting of"inherent vice," or qualities that cause or accelerate deterioration of the Work)for one(1)year after the date of Final Acceptance. b. Artist represents and warrants that the Work and the materials used are not currently known to be harmful to public health and safety. C. If,within one(1)year after Final Acceptance, City observes any breach of warranty described in this Article 4.2 that is curable by Artist, City shall give written notice to Artist of such breach with reasonable promptness. Artist shall, at the request of City, cure the breach satisfactorily and consistent with professional conservation standards (in accordance with the American Institute of Conservation (AIC) Code of Ethics and Guidelines for Practice) and/or construction standards, including, but not limited to, any standards set forth by City, within thirty (30) calendar days after receipt of the written notice, at no expense to City. d. If,within one(1)year after Final Acceptance, City observes any breach of warranty described in this Article 4.2 that is not curable by Artist, Artist is responsible for reimbursing City for damages, expenses, and losses incurred by City as a result of the breach. However, if Artist disclosed the risk of this breach in the proposal and City accepted that it may occur, it shall not be deemed a breach for purposes of this Article 4.2. e. If, after one (1) year from Final Acceptance, City observes any breach of warranty described in this Section 4.2 that is curable by Artist, City shall give written notice to Artist to make or supervise repairs or restorations at a reasonable fee during Artist's lifetime. Artist shall notify City, in writing, within thirty(30)calendar days after receipt of the notice as to whether Artist will make or supervise the repairs or restorations. Should Artist fail to respond within the thirty (30) calendar day deadline Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 11 of 38 Execution Copy 10/29/14 or be unwilling to accept reasonable compensation under the industry standard, City may seek the services of a qualified restorative conservator and maintenance expert. f. Acceptable Standard of Display. Artist represents and warrants that: (1) General routine cleaning and repair of the Work and any associated working parts and/or equipment will maintain the Work within an acceptable standard of public display. (2) Foreseeable exposure to the elements and general wear and tear will cause the Work to experience only minor repairable damages and will not cause the Work to fall below an acceptable standard of public display. (3) With general routine cleaning and repair, and within the context of foreseeable exposure to the elements and general wear and tear, the Work will not experience irreparable conditions that do not fall within an acceptable standard of public display, including, but not limited to, mold,rust, fracturing, staining,chipping,tearing, abrading,and/or peeling. (4) Manufacturer's Warranties. To the extent the Work incorporates products covered by a manufacturer's warranty,Artist shall provide copies of such warranties to City. g. The foregoing warranties are conditional, and shall be voided by the failure of City to maintain the Work in accordance with Artist's specifications and the applicable conservation standards. If City fails to maintain the Work in good condition, Artist, in addition to other rights or remedies Artist may have in equity or at law, shall have the right to disown the Work as Artist's creation and request that all credits be removed from the Work and reproductions thereof until the Work's condition is satisfactorily repaired. 4.3. Survival of Representations and Warranties. The representations and warranties in this Article 4 shall survive the termination or other extinction of this Agreement. ARTICLE 5 INSURANCE AND INDEMNITY 5.1. General. Artist shall carry insurance as set forth in Exhibit "G," which is attached hereto and incorporated herein for all purposes. Evidence of required insurance shall be submitted to the Contract Manager prior to installation of the Work on City property. However, if any part of the fabrication process will be conducted on City property, then Artist shall submit evidence of required insurance to the Contract Manager prior to performance of that work. Evidence of subsequent renewals of said insurance is required until City has taken possession of the Work. Except as provided in Article 2.10 hereof,the risk of damage to or loss of the Work, during fabrication and installation but prior to Final Acceptance, shall be solely that of Artist. The risk shall transfer to City and shall no longer be the responsibility of Artist upon Final Acceptance. Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 12 of 38 Execution Copy 10/29/14 5.2. Performance Bonds. Artist shall not be required by City to post any performance bonds or similar undertakings. 5.3. General Indemnity. a. ARTIST COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS,LAWSUITS,JUDGMENTS,ACTIONS, CAUSES OF ACTION,LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY 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 ACTS, ERRORS, OR OMMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTISTS, CONTRACTORS AND SUBCONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. b. Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained or caused by Artist in connection with or incidental to performance under this Agreement. 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. 5.4. Intellectual Property. Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 13 of 38 Execution Copy 10/29/14 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. 5.5. Survival. All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1. Title. Title to the Work, including, but not limited to, all documents, models and/or drawings that constitute or are components of the Work and/or the Artwork Design, shall pass to City upon Final Acceptance and payment for the Work or pursuant to the applicable termination provision of this Agreement. These documents, models and/or drawings will be retained for archival and exhibition purposes. Artist's Artwork Design, Work, and all other work products under this Agreement shall become the property of City, without restriction on future use,except as provided below. 6.2. Copyright Ownership. Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole author of the Work for the duration of the copyright. 6.3. Reproduction Rights• a. In view of the intention that the Artwork Design and the Work be unique, Artist shall not make any additional exact duplicate reproductions of the Artwork Design or the Work, nor shall Artist grant permission to others to do so except with the express written permission of City. However, nothing herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic expression. b. By execution of this Agreement, Artist grants to City an exclusive, perpetual, royalty free, and irrevocable license to graphically depict or publicly display the Artwork Design and Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Design and/or the 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. Notwithstanding the above limitation,Artist agrees and understands that nothing in this paragraph shall affect or limit Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 14 of 38 Execution Copy 10/29/14 City's absolute, unrestricted rights incidental to City's full ownership of the Work to alter, change, modify, destroy, remove, move, replace, operate, maintain, transport, sell or transfer, in whole or in part, the Work when City deems it necessary within its discretion, in order to otherwise exercise City's powers and responsibility in regard to public works and improvements, in furtherance of City's operations or for any other reason. C. All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the following form: "©date,Artist's name." d. Unless notified otherwise by City, Artist shall use Artist's best efforts in any public showing or resume use of reproductions to give acknowledgment to City in substantially the following form: "an original artwork commissioned by and in the public art collection of the City of Fort Worth, Texas." e. Artist may, at Artist's expense, cause to be registered with the United States Register of Copyrights, a copyright in the Work in Artist's name. f. City is not responsible for any third-party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. ARTICLE 7 ARTIST'S RIGHTS 7.1. Identification. The Contract Manager shall include credit to Artist on the Fort Worth Public Art website (www.fwpublicart.org)and facilitate the design,purchase,and installation of a permanent plaque at the Site. 7.2. Maintenance. City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work. City shall reasonably assure that the Work is properly maintained and protected, taking into account the maintenance instructions provided by Artist in accordance with Article 2.7 and Exhibit D. 7.3. Repairs and Restoration. a. City shall have the right to determine when and if repairs and restorations to the Work will be made. During Artist's lifetime and to the extent practicable, City shall give Artist the right to approve all major repairs and restorations; provided, however, Artist shall not unreasonably withhold approval for any repair or restoration of the Work. Should Artist unreasonably withhold approval of any intended repair or restoration, City shall have the right to make such repair or restoration. To the extent practicable, Artist, during Artist's lifetime, shall be given the opportunity to make or personally supervise major repairs and restorations and shall be paid a reasonable fee for any such services, provided that City and Artist shall agree, in writing, prior to commencement of any significant repairs and restorations, upon Artist's fee for such services. Should Artist fail to agree to Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 15 of 38 Execution Copy 10/29/14 make or supervise the repairs and restorations, City shall have the right to choose another entity or person to assist with the restoration and/or repairs or make said repairs by City. b. All repairs and restorations shall be made in accordance with recognized conservation standards (in accordance with the American Institute of Conservation (AIC) Code of Ethics and Guidelines for Practice)and/or construction standards, including,but not limited to,the standards set forth by City. C. City may require Artist to submit professional documents supporting Artist's proposal for repairs and restorations prior to commencement of repairs or restorations. d. When emergency repairs are necessary to prevent the loss of or further damage to the Work or to prevent risks to the public, such repairs shall be undertaken or arranged by City without advance notice to Artist, and such repairs shall not be deemed to constitute artistic alteration. 7.4. Alteration of the Work or of the Site. a. In the event that the Work is incorporated into a building, structure or realty, the installation of the Work may subject it to destruction, distortion, mutilation or other modification by reason of its removal. If removal of the Work would damage either the Work or the Site, City shall have the right to remove the Work by any means, including destruction, in performing maintenance, repair, renovation, or reconstruction of the building, structure or in devoting realty to a new use. City may give Artist written notice of its intent to take such action under this paragraph. b. In the event that the Work is freestanding, or incorporated into a building, structure or realty such that it may be removed without damaging or destroying the Work or the building or structure, Artist may be given written notice and ninety (90) calendar days to remove the Work at his or her sole expense. Upon Artist's failure to remove the Work, City shall have the right to remove and dispose of the Work by any means, including its destruction. C. City agrees that it will not willfully destroy, damage, or modify the work, except as provided in paragraphs a. and b. above. d. In the event the Work is substantially damaged or altered, City shall no longer represent the Work as that of Artist if Artist gives written notice to City that it is the position of Artist to deny authorship on the grounds stated in this paragraph. e. City shall, at all times,have the right to move the Work, or remove it from public display. City shall also have the right to sell or trade the Work. 7.5. Permanent Record. City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 16 of 38 Execution Copy 10/29/14 7.6. Artist's Address. Artist shall notify City of changes in the address set forth in Article 14. 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 of Article 7 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. 7.7. Additional Rights and Remedies. Nothing contained in this Article 7 shall be construed as a limitation on such other rights and remedies available to Artist under the law,which may now or in the future be applicable. 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 SUBCONTRACTING Artist may subcontract portions of the services to be provided hereunder at Artist's expense, provided that said subcontracting shall not adversely affect the design, appearance or visual quality of the Work and shall be carried out under the personal supervision of Artist. Any subcontract entered into under this Agreement shall be expressly subject to the terms of this Agreement. Artist shall provide information regarding all subcontractors, including its fabricator, along with a copy of the subcontract between Artist and each subcontractor to the Contract Manager. ARTICLE 10 TERM AND TERMINATION 10.1. 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. 10.2. 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 Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 17 of 38 Execution Copy 10/29/14 making of any determinations with respect to this performance of this Agreement. In the event this Agreement is canceled by the City, pursuant to this Article 10.2, City shall be entitled, in addition to any other rights and remedies, to recover from Artist a sum equal in amount to the cost incurred by Artist in providing such gratuities. 10.3. Easement. This Agreement is contingent upon the City obtaining an easement from the Historic Handley Development Corporation for placement of the Work at the Site. If City fails to obtain such easement, then the City may terminate this Agreement for its convenience. City shall pay Artist in accordance with the payment schedule in Article 3 up to the date of termination. City shall have the right to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches,photographs,models,and designs,up to the effective date of termination. 10.4. Incapacity of Artist. a. In the event that John Christensen becomes incapable, legally or otherwise, of performing his duties and/or obligations under this Agreement, City may choose to continue the terms of this Agreement with the capable party or terminate this Agreement. In the event that John Christensen becomes incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist's successors for all work and services performed prior to incapacity. All work product produced by Artist, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination shall become property of City. b. Should Artist's Final Design have been approved, in the event of termination under this Article 10.4, City shall have the right to complete the Work, if feasible. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. This provision shall survive the termination or expiration of this Agreement. 10.5. Termination for Convenience. a. The services to be performed under this Agreement may be terminated by either party,subject to written notice submitted thirty(30)calendar days before termination. b. If the termination is for the convenience of City, City shall pay Artist in accordance with the payment schedule in Article 3, and Artist shall continue to provide the City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon payment in full of all monies due for services provided up to the effective date of termination, City shall have the right, in its sole discretion,to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches,photographs,models, designs and the Work up to the effective date of termination. Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 18 of 38 Execution Copy 10/29/14 C. If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to pay Artist for services actually rendered up to the effective date of termination or require the Artist to remit to City a sum equal to all payments(if any)made to the Artist pursuant to this Agreement prior to the effective date of termination. If City chooses to pay Artist for services actually rendered,then all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, designs, the Work up to the effective date of termination shall become property of City. d. If termination is by mutual agreement of the Parties as set forth in Article 2.5, then City shall pay Artist for work performed per the payment schedule in Article 3 up through the date of termination. City shall have the right to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models,and designs,up to the effective date of termination. 10.6. Termination for Cause. a. 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 10.6 in accordance with the dispute resolution process set forth in Article 11 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 Article 10.6 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. b. If City terminates this Agreement pursuant to this Article 10.6, then City shall have the right to complete the Work in accordance with the Artwork Design,which shall be in addition to any and all other rights and remedies available to City at law or in equity. If City exercises its right to complete the Work,then,notwithstanding anything to the contrary: (1) title to the Artwork Design, Work, and/or all other work product under this Agreement and/or any prior agreement for the Work, including, but not limited to, all documents, models, and/or drawings that constitute or are components of the Artwork Design and/or Work, shall pass to City and become the property of City, without restriction on future use, immediately upon the City's exercise of its right to complete the Work; (2) Artist shall forfeit any and all rights to the Artwork Design, Work, and/or all other work product under this Agreement and/or any prior agreement for the Work, including, but not Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 19 of 38 Execution Copy 10/29/14 limited to, those stated under Articles 6 (Ownership and Intellectual Property Rights) and 7 (Artist's Rights)of this Agreement; (3) Artist automatically sells, assigns, and transfers to City, the entire right, title, and interest in and to the Artwork Design, Work, and/or all other work product under this Agreement or any prior agreement for the Work that the Artist has under the Copyright Act of 1976, 17 U.S.C. SS 101 et. seq., and all the rights and privileges appertaining thereto, including, without limitation, the exclusive right to reproduce, prepare derivative works based upon, distribute copies to the public as well as display said Artwork Design and/or Work,the same to be held and employed by City for City's own benefit and use and for the benefit and use of City's successors, assigns, and legal representatives forever; (4) Artist shall have no copyright or other property interest in the Artwork Design, Work, and/or any other work product under this Agreement and/or any prior agreement for the Work; and (5) Artist, pursuant to this Article 10.6, hereby acknowledges the rights of attribution and integrity conferred by Section 106A(a) of Title 17 of the U.S. Code, (as amended or as it may be amended in the future)Titled"Visual Artists Rights Act," and any other right of the same nature granted by U.S. federal, state, or foreign laws, and of his/her own free act hereby waives such rights with respect to any and all uses of the Artwork Design, Work, and/or all other work product under this Agreement and/or any prior agreement as a public artwork. Nothing in this Article 10.6 shall affect the survival of Articles 4 (Warranties), 5 (Insurance and Indemnity), and 8 (Artist as an Independent Contractor) of this Agreement, which shall remain in full force and effect upon termination of this Agreement. ARTICLE 11 DISPUTE RESOLUTION a. 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. b. 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 Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 20 of 38 Execution Copy 10/29/14 and Remedies Code and Chapter 2009 of the Texas Government Code, then in effect. Request for mediation shall be in writing,and shall request that the mediation commence not less than fifteen(15)or more than forty-five (45) calendar days following the date of request, except upon Agreement of the Parties. In the event City and Artists are unable to agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty (30) calendar days following the date of the request for mediation,then all the conditions precedent in this article shall be deemed to have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County,Texas. Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No provision of this agreement shall waive any immunity or defense. No provision of this Agreement constitutes consent to sue. If the Parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute.(See Article 10.5) ARTICLE 12 EQUAL OPPORTUNITY a. Artist shall not engage in any unlawful discrimination based on race, creed, color, national origin, sex, age, religion, disability, marital status, citizenship status, sexual orientation or any other prohibited criteria in any employment decisions relating to this Agreement, and Artist represents and warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be debarred from further agreements with City. ARTICLE 13 MISCELLANEOUS 13.1. 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. 13.2. 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. 13.3. Amendments. No alteration, change, modification, or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 21 of 38 Execution Copy 10/29/14 13.4. 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. 13.5. 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. 13.6. Successors and Assigns. Neither party hereto shall assign, sublet, or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease, or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and their respective successors and permitted assigns. 13.7. 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. 13.8. 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. 13.9. 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. 13.10. 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 Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 22 of 38 Execution Copy 10/29/14 k against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 13.11. Fiscal Funding Out. If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement to be effective on the later of(i) thirty (30) calendar 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. 13.12. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 13.13. 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 shall survive expiration or earlier termination of this Agreement. Artist shall require all of its subcontractors to include in their subcontracts a right to audit in favor of City in substantially the same form as above. 13.14. Certified MBE/WBE. If applicable, Artist is encouraged to make its best effort to become a certified Minority Business Enterprise (MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is accepted by the City under the City's Business Diversity Enterprise Ordinance. 13.15. Survival Provision. The provisions contained in Articles 4 (Warranties), 5 (Indemnification), 6 (Ownership and Intellectual Property Rights), 8 (Artist as an Independent Contractor) and 13.13 (Right to Audit) shall survive the termination or expiration of this Agreement. 13.17. 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 with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 23 of 38 Execution Copy 10/29/14 13.125. Time Extensions. The Parties may agree.in writing,to extend or modify any of the time deadlines set forth in this Agreement. ARTICLE 14 NOTICES All notices,requests,demands,and other communications which are required or permitted to he given under this Agreement shall be in writing and shalt 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: l. CITY OF FORT WORTH: Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street,Third Floor Fort Worth,Texas 76102 Copies to: City Attorney Office of the City Attorney City of Fort Worth 1000 Throckmorton Street,Third Floor Fort Worth,Texas 76102 Martha Peters, Vice President, Public Art Arts Council of Fort Worth& Tarrant County 1300 Cendy Street Fort Worth,Texas 76107 2. ARTIST John Christensen 500 W St.Elmo Austin,TX 78745 IN WITNESS HEREOF,the Parties hereto have executed this Agreement to be effective as of the Effective Date, CITY OF FORT WORTH ARTIST — Fernando Costa John Chri tensen Assistant City Manager APPROVED AS TO FORM AND L AL1TY: j Iessica S *svang Assistal C ty Attorney Alreenent wh1i John Christensen fin Final Desip and Commission or Public Anwurk for I listeric flandiev Urban Village 24 of 1y Cxecuwion Copy 111129114 ATTESTED BY: J.l�p 0 1MKty City Se o oQ V$ o S� M&C: C-27059 $ Date: 10/28/2014 OFFICIAL WECORD CITY SECRETARY FT.WORTHS 7h Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 25 of 38 Execution Copy 10/29/14 Exhibit A: The Preliminary Design It ]N IN IN 1>a IN W q z a x Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 26 of 38 Execution Copy 10/29/14 Exhibit B: Proposed Site(Approximate) ............... Agreement with John Christensen for Final Design and Commission of'Public Artwork for Historic Handley Urban Village 27 of 38 Execution Copy 10/29/14 5 e EX 12"WL- tFn b+ i s't rz�E r 0 { '' fMT'1 . E. LANCASTER AVENUE j zaa�co � zas•QO � 2so•oa IX(Y)I I `25 121 i >ut - , 4 z'' s�xp�nv I+x thou i Pfii r� s ( i+4iitfy(ar'i�r° MATCH EXISTING RAMP— t Note:Plan shows two approximate locations shown for sculpture-one at corner and one further east on E Lancaster Avenue. Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 28 of 38 Execution Copy 10/29/14 Exhibit C: Budget Form FORT WORTH PUBLIC ART PROJECT BUDGET Please complete this form and attacha signed receipt or estimate comptete with per unit cuts{no krrop gums)for all items designated with an asteriskv)cost increases must also have a written estimate attached. ARTIST'S FEE TRAVEL (For artists who live more than 50 miles from Fort Worth) Airfare Car Rental Per Diem Expenses at$_per day Mileage at$�per mite INSURANCE Auto/Hired Vehicle Liability General Liability for Artist t Subcontractors Worker's Comp./Employers Liability Other,as applicable ADMINISTRATIVE EXPENSES Phone/Fax Delivery/Shipping(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' 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 FABRICATION COSTS (include and itemize all portions of subcontracted work and work to be completed by artist.) Artist's Labor(_hours at S_per hour)Total Subcontracted Labor'(Total) FacilitylEquipment Rental(used exclusively for this project)related to fabrication SITE PREPARATION (Do not include costs covered by F`NPA,City of Fort Worth or others) Test DriNng' Removal' Landscap)ngllaigation' Electrical Modifications' Water WorklMechanical Devices Other' (Revised May 2011) Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 29 of 38 Execution Copy 10/29/14 TRANSPORTATION Materials to Fabrication Site' Finished Work to Installation Site' Other' BASEIMOUNTING Base Mounting Devices and Components FounclatioNFooting Other 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 PolicelSecurity' Traffic Barriers' Storage Facility Rental' City Permits Display Devices Fireproofing' Site Restoration' Other* LIGHTING Designers' Fixtures' Bulbs* Site Preparation' Installation* GRAND TOTAL Please make any necessary notes here: Prepared By: Date: (Revised May 2011) Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 30 of 38 Execution Copy 10/29/14 Exhibit D: Technical and Maintenance Record GENERAL INFORMATION Artist: Address: Telephone: Cell: E-mail: Gallery Affiliation: Other Representation: ARTWORK Title of Artwork: Project Name and Location Address: FWPA Project Manager: Description of Artwork: (attach separately if necessary): Artwork Dimensions: Height: Width: Depth: Pedestal or Pad Material: Pedestal or Pad Dimensions: Height: Width: Depth: Location&Description of Signature Markings(or copyright): Edition Information if applicable: Date of Execution: Place of Execution: Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 31 of 38 Execution Copy 10/29/14 Collaborating Artist: Fabricator(if other than artist) Fabricator Address: Methods/Materials Used in Execution of Artwork Materials(list type,brand name and manufacturer of all materials; attach Material Safety&Technical Data. Include contact names for all suppliers and attach warranty information): Construction Description: (list all fabricators and any architects,engineers or other technicians involved in the creation and installation of this artwork. Attach all warranties&agreements) Material(s) Specifications: Joining Methods: Welding Rod Alloy or Joint Material&Application Method: Casting Alloy, Wax Body, Glass or Fiber Type: Finishes &Coatings(paint color and type,glaze,patina,any and all coatings including fixative,UV,graffiti, etc.Please list vendors and contact information and provide all product information): Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 32 of 38 Execution Copy 10/29/14 Pedestals,Foundations&Footings,Mounting and Attachment Applications (List all materials used to install artwork on site. Include vendor information,parts numbers,warranties and agreements.) Integrated Components (List all components included in design and fabrication contracts that function as a part of the final installation including but not limited to: lighting,media,landscaping,etc. Include all vendor information, parts numbers, warranties and agreements and any/all design schematics): Installation Installation Date: Installation Method: (describe installation method,provide photo documentation if available.List name and contact information of installation crew. Attach any diagrams or disassembly instructions.) Recommended Routine Maintenance Artist recommendation based on experience and consultation with conservation expert Artist's Conservation Consultant Name: Address: Phone: (Please attach Conservator's Long Term Maintenance Recommendations) Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 33 of 38 Execution Copy 10/29/14 Unusual or Special Circumstances of Note Artist's Intention (Please describe your view of how the artwork will change over time and in response to environmental conditions. Artist's vision of how the artwork will look in the future assists FWPA in realizing an appropriate conservation action plan. In addition to environmental conditions public artworks are often affected by public handling,landscaping and site changes. Please clearly detail your expectations for this artwork. Please address issues related to the life expectancy of this artwork.) Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 34 of 38 Execution Copy 10/29/14 Exhibit E: Affidavit AFFIDAVIT OF BILLS PAID Date: Affiant: Purchaser: Property: Affiant on oath swears that the following statement is true: Affiant has paid each of Affiant's contractors, laborers, and materialmen in full for all labor and materials provided to Affiant for the construction of any and all improvements on the property. Affiant is not indebted to any person, firm, or corporation by reason of any such construction. There are no claims pending for personal injury and/or property damages. Affiant: SUBSCRIBED AND SWORN TO before me,the undersigned authority, on this the day of 12013. Notary Public, State of Texas Print Name Commission Expires Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 35 of 38 Execution Copy 10/29/14 Exhibit F: Sales Tax Exemption I1*1 (atex) (ne+.m N) Texas Sales and Use Tax Exemption Certification This certificate does not require a number to be valid. Nam*of pwchaser,rum of agency City of Fort Worth Address(Street d number.P.O.box or Route number) Phone(Atea cede and nutnbor) 1000 Throckmorton street 817.352.8325 Ctty,State,ZIP code _..__ Fort Worth,Texas 76102 1,the purchaser named above,claim an exemption from payment of sales and use taxes(for the purchase of taxable Items described below or on the attached order or Invoice)from: Seller: All Vendors Street address: ____ City,State,ZIP code: Description of items to be purchased or on the attached order or invoice: All Items Purchaser claims this exemption for the following reason: Governmental Municipality I understand that I will be liable for payment of all state and local sales or use taxes which may become due for failure to comply with the provisions of the Tax Code and/or all applicable law. I understand thatitls a criminal ollense togivoan exemption cetfifrcafe to thesellerfortexable items that(know,of the time ofpurchase, will be used in a mannerotherthan that expressodin this certificate,and dependingon the amount oflax evadod,file offense mayrango from a Class C misdemeanor to a felony or the second degree. Pu'rchasot ) Tide here Assistant Finance Director 2126/2014 NOTE: This certificate cannot be Issued for the purchase,tease,or rental of a motor vehicle. THIS CERTIFICATE DOES NOT REQUIRE A NUMBER TO BE VALID. Sales and Use Tax"Exemption Numbers"or"Tax Exempt"Numbers do not exist This certificate should be furnished to the supplier. Do Dgt send the completed certificate to the Comptroller of Public Accounts. Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 36 of 38 Execution Copy 10/29/14 Exhibit G: Insurance Requirements PUBLIC ART PROJECTS -INSURANCE REQUIREMENTS Artist shall meet all the following insurance requirements for this Project. If Artist subcontracts fabrication, transportation, and/or installation of the Work,then Artist shall also require his/her subcontractor(s)to abide by all of the following insurance requirements. Commercial General Liability(CGL) $1,000,000 Each occurrence $2,000,000 Aggregate limit Coverage shall include, but not be limited to, the following: premises, operations, independent contractors, products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an occurrence basis, and be as comprehensive as the current Insurance Services Office (ISO)policy. The policy shall name City as an additional insured. Bailee's/Property(if applicable) The inland marine policy shall provide per occurrence coverage at replacement cost value based on the latest appraised value of the Artwork, which is entrusted to the Artist and is considered to be in the Artist's care, custody, and control and shall include property"in transit." Automobile Liability $1,000,000 Each accident or $250,000 Bodily Injury per person $500,000 Bodily Injury per occurrence $100,000 Property Damage A commercial business policy shall provide coverage on "Any Auto," defined as autos owned, hired and non-owned. For Artist and/or Artist's Subcontractors who have employees: Workers'Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease-per each employee $500,000 Bodily Injury/Disease-policy limit Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas workers' Compensation Act(Art. 8308— 1.01 et seq. Tex.Rev. Civ. Stat.). GENERAL POLICY REQUIREMENTS The certificate of insurance shall include an endorsement naming the City of Fort Worth, its' Officers, Employees and Volunteers as an "Additional Insured" on all liability policies. Exception: the additional insured requirement does not apply to Workers' Compensation or Automobile policies. Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 37 of 38 Execution Copy 10/29/14 Artist is responsible for providing the City a thirty day (30) notice of cancellation or non-renewal of any insurance policy and may not change the terms and conditions of any policy that would limit the scope or coverage,or otherwise alter or disallow coverage as required herein. The workers' compensation policy shall include a Waiver of Subrogation(Right of Recovery) in favor of the City of Fort Worth. The insurers for all policies must be licensed/approved to do business in the State of Texas. If the subcontractor is an international entity and carries insurance through an international insurance company, then the subcontractor must obtain language on their certificate of insurance confirming that its insurance policy extends coverage to operations in the United States. All insurers must have a minimum rating of A- VII in the current A. M.Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required,written approval of Risk Management is required. If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. "Unless otherwise stated,all required insurance shall be written on an"occurrence basis." The deductible or self-insured retention (SIR) affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of City of Fort Worth in regards to asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups,must also approved by City's Risk Manager. City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to City of Fort Worth. City shall be required to provide prior notice of ninety days. City shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. Agreement with John Christensen for Final Design and Commission of Public Artwork for Historic Handley Urban Village 38 of 38 Execution Copy 10/29/14 M&C Review Page 1 of 2 Official site of the City of Fort Worth,Texas CITY ® IL GEN®Q FORTWORTII COUNCIL ACTION: Approved on 10/28/2014 REFERENCE ** 20HISTORIC HANDLEY DATE: 10/28/2014 NO.: C-27059 LOG NAME: URBAN VILLAGE PUBLIC ART PROJECT CODE: C TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: Authorize Execution of a Final Design and Artwork Commission Agreement with John Christensen in an Amount Up to $53,000.00, for Final Design, Fabrication, Delivery, Installation, and Contingencies for a Sculpture for the Historic Handley Urban Village to be Installed Along East Lancaster Avenue on Property Owned by the Historic Handley Development Corporation (COUNCIL DISTRICT 5) RECOMMENDATION: It is recommended that the City Council authorize execution of a Final Design and Artwork Commission Agreement with John Christensen in an amount up to $53,000.00 for final design, fabrication, delivery, installation, and contingencies for a sculpture for the Historic Handley Urban Village to be installed along East Lancaster Avenue on property owned by the Historic Handley Development Corporation. DISCUSSION: The 20 foot high artwork approximates a circa 1930 toy train and is comprised of a cube shaped base topped with a section of rail, a stylized steam locomotive, a tender and a passenger/mail car, stacked in a vertical column. Fabricated in painted steel, the design includes a contrasting graphic panel that delineates the train car windows and spells "Handley." The artwork will also include a footing and lighting. Under this agreement, Artist John Christensen will finalize the aesthetic design, provide structural engineering, provide a survey of the site, and provide a lighting plan. Upon approval of the Final Design by the Fort Worth Art Commission, John Christensen will fabricate and install the sculpture. The sculpture will be readily seen by motorists and pedestrians and physically located along the 6600-6700 block of East Lancaster Avenue on property owned by the Historic Handley Development Corporation. The City will acquire an easement for the sculpture from the Historic Handley Development Corporation. The City will retain full ownership and maintenance responsibilities of the artwork. Funding for this project has been allocated from the Public Art Fund, and the project was included in the Fiscal Year 2015 Annual Work Plan and Budget adopted by the Fort Worth City Council on October 14, 2014, (M&C C-27031) as part of the City's agreement with the Contract Manager for administration of the public art program. BACKGROUND: On September 20, 2013, the City entered into a contract with John Christensen to develop preliminary artwork design(s) for the site (Fort Worth City Secretary Contract No. 44810). On March 17, 2014, the Fort Worth Art Commission approved the artist's preliminary design and recommended that John Christensen be retained to develop a final design based upon the preliminary design for public artwork to be incorporated into the site, and, upon City approval, to fabricate, deliver, and install the artwork at the site. The City's overall M/WBE goal for the Fort Worth Public Art Program is 25 percent of total capital httn•//annc cfwnetnru/crnmcil packet/me review.asn?ID=20418&councildate=10/28/2014 11/10/2014 M&C Review Page 2 of 2 project dollars expended on public art annually. This project is located in COUNCIL DISTRICT 5. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that funds are available in the current capital budget, as appropriated, of the Specially Funded Capital Projects Fund. TO Fund/Account/Centers FROM Fund/Account/Centers C291 541200 205980183480 $53,000.00 Submitted for City Manager's Office by: Fernando Costa (6122) Originating Department Head: Douglas W. Wiersig (7801) Additional Information Contact: Martha Peters (298-3025) ATTACHMENTS MC ATTACHMENTS FOR JOHN CHRISTENSEN HISTORIC HANDLEY July 2014.pdf http://apps.cfwnet.org/council_packet/mc review.asp?ID=2041 8&councildate=10/28/2014 11/10/2014