HomeMy WebLinkAboutContract 48016 . RECEIVE
JUL 22 2016 AGREEMENT BETWEEN THE CITY OF FORT WORTH
C)]YOFFORTWAND DAVID FRANKLIN FOR CONCEPTUAL DESIGN PROPOSAL FOR
GCiYSEG I'. PUBLIC ART FOR WESTCREEK DRIVE
This Agreement is entered into thisday of 2016, by and between the City of
Fort Worth, a home-rule municipal corporation of the State of Tex acting by and through Fernando Costa,
its duly authorized Assistant City Manager, and David Franklin an Individual residing at 9223 Harris Ave.
NE Indianola, WA 98342. City has designated the Arts Council of Fort Worth and Tarrant County, Inc., to
manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art
project manager.
WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of
Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort
Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of
artists into the development of the City's capital infrastructure improvements, and to promote tourism and
economic vitality in the City through the artistic design of public spaces;
WHEREAS, City is constructing improvements in the street and the median along Westcreek
Drive, which includes providing on street bike lanes and new paved pedestrian trails from I-820 on the south
to West Fuller Avenue on the north;
WHEREAS, City has set aside funds to design and commission public art/design enhancements in
conjunction with street improvements projects from the 2004 Capital Improvements Program;
WHEREAS, funding for this project has been allocated from the 2004 Capital Improvement
Program, Proposition 1, and the project was included in the Fort Worth Public Art Fiscal Year 2016 Annual
Work Plan, adopted by the Fort Worth City Council on October 27, 2015 (M&C C-27515) as part of the
City's agreement with Contract Manager for administration of the public art program;
WHEREAS, staff conducted a public meeting that explored the identity of the community along
with public art opportunities along Westcreek Drive, and from this developed the Project Outline which
identifies an artist-designed pedestrian bridge as the desired approach for the artwork, and the Project Outline
was approved by the FWAC on January 11, 2016;
WHEREAS, the Fort Worth Art Commission ("FWAC") is overseeing an artist selection process in
accordance with the Project Outline and the guidelines in the Fort Worth Public Art Master Plan;
WHEREAS, the project manager, facilitated the Artist Selection Panel, which reviewed the
qualifications of ten artists from the Fort Worth Public Art pre-qualified list of established artists, resulting in
the recommendation of three artists as finalists for the Project;
OFFICIAL RECORD
CITY SECRETARY
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WHEREAS, Artist has been selected as one of the finalists for the Project and is being asked to
develop a conceptual proposal and submit that proposal for review and consideration by the Artist Selection
Panel;
WHEREAS, the City intends to select one proposal for the Project based on the submissions by the
individual artists with no guarantee that any particular artist or proposal will be selected to proceed to the
next phase of the Project; and
WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall
be designed to promote the integrity of Artist's ideas and statements as 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 of Fort Worth and David
Franklin for Conceptual Design Proposal of public art for the Site.
1.2. Artist—Means and includes David Franklin.
1.3 Artist Selection Panel — Means and includes a panel comprised of arts professionals,
community stakeholders, City staff representatives, City Council Member,and a FWAC representative.
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 and its officers, representatives,
agents,servants, and employees.
1.6. Effective Date — Means and includes the date represented in the first paragraph of this
Agreement, which shall be the official date of execution of this Agreement.
1.7. Parties—Means and includes City and Artist.
1.8. Conceptual Design Proposal — Means all preliminary drawings, sketches, narrative
descriptions, budget estimates, and the like that are created by Artist in connection with this Agreement
between Artist and City for the Work.
1.9. Conceptual Design Proposal 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.
1.10. 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.
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1.11. Project Stakeholders — Means and includes the appropriate City Council Member(s), and
their appointed community representatives and the FWAC's appointed representative and others as may be
appropriate.
1.12. Site— Means Westcreek Drive from SW Loop 820 / Interstate 20 to West Fuller Avenue in
Council District 9, connecting the South Hills neighborhood with the trail system that runs north through
Kellis Park, Foster Park, Overton Park, and on to other sections of the Trinity River Trail System, which is
further depicted in the attached Exhibit"A."
1.13. 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
PURPOSE, SCOPE OF SERVICES,AND DELIVERABLES
2.1. Purpose. The purpose of this Agreement is to solicit a conceptual artwork design proposal from
Artist for review by the Artist Selection Panel for this Project and ultimately select an artist to proceed to the
next phase of this Project, which may include preliminary and final design development and commission of
the Work. The City does not guarantee that Artist will be selected to proceed to the next phase of the Project
and specifically reserves the right to reject all proposals or select more than one proposal.
2.2. Scope of Services.
a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary
for developing a Conceptual Design Proposal of the Work and for providing the Conceptual Design
Proposal Deliverables. Services shall be performed in a professional manner and in strict compliance
with all terms and conditions in this Agreement.
b. Artist and/or members of their firm shall participate in a one hour orientation meeting at (conducted
via conference call)on May 2, 2016 at 2 PM Central Standard Time.
C. Artist shall prepare and present a Conceptual Design Proposal to the Artist Selection Panel in Fort
Worth, Texas,at a mutually agreeable date and time and shall participate in a site visit as part of that
trip.
d. Artist shall allow video recording and photography of his/her Conceptual Design Proposal
presentation to the Artist Selection Panel.
e. Two weeks prior to final submittals Artist will meet via conference call with the project manager for
the purpose of a design progress report to receive feedback on their initial concepts and have the
opportunity to ask questions.
f. Artist shall make one trip to Fort Worth, Texas for meetings and presentations as indicated above.
Additional trips, if required per this Article, may be negotiated and agreed upon in writing by City
and Artist.
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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. Conceptual Design Proposal Deliverables.
a. Within (8) eight weeks of execution of this Agreement Artist shall provide services and all supplies,
materials, and equipment necessary to provide certain deliverables, as set forth in this subsection to
City for consideration.
b. Conceptual Design Proposal Deliverables shall consist of the following:
i. A written narrative description of the Artist's concept, proposed materials, fabrication and
installation methods, timeline for completion and maintenance requirements;
ii. Two-dimensional rendering(s) of the Artist's concept, supplied as both high and low
resolution digital files; and no more than five examples of relevant projects by the Artist,
presented within a power point presentation;
iii. Installation diagram showing the concept's relationship to the Site, including approximate
weight of the Work, proposed footing and foundation method(s), and location(s)for lighting,
if any;
iv. A preliminary budget estimate, on the budget form attached hereto as Exhibit "B," for
implementation of a final design of the Work in an amount not exceed $332,791.00 which
includes a $41,680.00 contingency and which includes all costs for materials, labor,
fabrication, delivery, installation, insurance, transportation, travel, Artist's fee, and all other
associated costs for the Work. Budget estimate should also include 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.
V. Material sample(s) that illustrate what the proposed Work would be made from, showing
durability, texture, color, etc., as appropriate. No models or prototypes shall be presented to
the Artist Selection Panel.
C. Artist shall submit an electronic version of his/her initial concept sketches for the Conceptual Design
Proposal for the purpose of a design progress report as described in 2.2.e. These sketches shall be
submitted to Contract Manager no later than 12:00 Noon(Central Time), at least two days in
advance of the progress report date.
d. Artist shall submit a final electronic version of the Conceptual Design Proposal Deliverables to
Contract Manager no later than 12:00 Noon (Central Time), at least three days in advance of the
presentation date to the Artist Selection Panel.
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e. The initial concept sketches and the Conceptual Design Proposal Deliverables shall be sent in one of
the following manners:
i. Via email to aallen(a'fwpublicart.org(9 MB size limit per each email)
ii. Via an FTP site, such as dropbox.com
iii. Mailed or hand delivered on a CD (not DVD) to Fort Worth Public Art, Attention: Anne
Allen, 1300 Gendy Street, Fort Worth, TX 76107.
2.5. Notification of Selection.
a. The Contract Manager shall notify the Artist, by phone and in writing, of the final outcome of the
artist selection process, i.e., whether or not the Artist was selected to proceed to the next phase of the Project,
within 15 days of the FWAC's approval of the Project artist.
2.6. Alternate Artist.
a. Any artist not selected to proceed to the next phase of the Project may be designated as an alternate
for a period of one year from the date the City sends final payment to Artist under this Agreement. The
Artist shall not receive any additional compensation for such designation; however, such designation does
affect ownership rights to the Artist's Conceptual Design Proposal, which is set forth in more detail in
Article 5.
ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1. Compensation.
Total compensation to Artist under the Agreement shall not exceed TWO THOUSAND THREE HUNDRED
DOLLARS AND NO CENTS ($2,300.00), which shall constitute full compensation for any and all costs
associated with the Agreement, including, but not limited to, all travel expenses and services performed and
materials furnished by 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:
i. ONE THOUSAND DOLLARS AND NO CENTS ($1,000.00) within thirty (30) calendar
days after Artist submits all of the Conceptual Design Proposal Deliverables required under
Article 2.4 of this Agreement and travels to Fort Worth and makes a presentation of the
Conceptual Design Proposal to the Artist Selection Panel.
ii. FIVE HUNDRED DOLLARS AND NO CENTS ($500.00) within thirty (30) calendar days
after Artist is notified as to the final outcome of the artist selection process (i.e., whether or
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not the Artist was selected to proceed to the next phase of the Project after FWAC's
selection of the Project artist).
ill. City shall reimburse Artist for reasonable travel expenses incurred, as approved by Project
Manager, in order to fulfill the terms of this agreement, including: (i.) Roundtrip airfare to
Dallas Fort Worth International Airport of approximately $350.00 (copy of receipt must be
furnished); (ii) one night lodging not to exceed S 170.00 (copy of receipt must be furnished);
(iii.) Meals (excluding alcoholic beverages) and incidentals (copies of receipts must be
furnished OR invoiced using GSA's FY 2016 Meals and Incidental Expenses (M&IE)
Breakdown for Arlington/Fort Worth/Grapevine, Texas) not to exceed $103.00; (iv.)
Ground transportation, including (a.) Roundtrip from your home to your local airport OR
roundtrip mileage plus airport parking; (b.) Roundtrip from Dallas Fort Worth International
Airport to Fort Worth Hotel; and, (c.) Roundtrip from Fort Worth Hotel to the Fort Worth
Community Arts Center, for a total of approximately S104.00 (copies of receipts must be
furnished); Reimbursement payment shall be made within (30) days of the date Artist's
invoice (with copies of required receipts attached) is received by Project Manager for a total
amount not to exceed $800.00.
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"C"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 and/or Contract Manager, 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
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
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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.
The City may terminate this Agreement for cause in the event Artist fails to perform in accordance with the
requirements contained herein. In such event, City shall give Artist written notice of Artist's failure to
perform, giving Artist seven (7) calendar days to come into compliance with the Agreement. If Artist fails to
come into compliance with this Agreement, City shall notify Artist in writing, and this Agreement shall be
terminated as of the date of such notification. In such event, Artist shall not be entitled to any additional
compensation.
4.4. Termination for Convenience.
a. The services to be performed under this Agreement may be terminated by either party, subject to
written notice submitted thirty(30)calendar days before termination.
b. If the termination is for the convenience of City, City shall pay Artist for services actually rendered
up to the effective date of termination.
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.
ARTICLE 5
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
5.1. Non-Selected Artists.
a. If Artist is not selected to proceed to the next phase of the Project as the Project artist, then, upon
payment in full to the Artist, the Conceptual Design Proposal and all other work product under this
Agreement shall become the property of City for a period of one year from the date the City sends
final payment to Artist under this Agreement. Artist shall retain copyright and other intellectual
property rights in and to the Conceptual Design Proposal.
b. In view of the intention that the Conceptual Design Proposal be unique, Artist shall not make
any additional exact duplicate reproductions of the Conceptual Design Proposal, nor shall
Artist grant permission to others to do so except with the express written permission of City.
C. City is not responsible for any third-party infringement of Artist's copyright and not responsible for
protecting the intellectual property rights of Artist.
d. If,within the above-stated one-year period, the City decides to select the Artist to proceed to the next
phase of the Project as the Project artist and Artist agrees to such selection, then the rights set forth in
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Article 5.2 for the selected artist shall supersede and govern any ownership and intellectual property
rights associated with or related to this Agreement.
5.2, Selected Artist.
a. If Artist is selected to proceed to the next phase of the Project as the Project artist, then the
ownership and intellectual property rights set forth in this subsection shall apply.
b. Upon payment in full to Artist, the Conceptual Design Proposal and all other work product under this
Agreement shall become the property of City, without restriction on future use, except as provided
below. Artist shall retain copyright and other intellectual property rights in and to the Conceptual
Design Proposal and/or Work. Artist grants to the City an exclusive, perpetual, irrevocable, and
royalty free license to graphically depict or display the Conceptual Design Proposal and/or Work for
any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or
display of the Conceptual Design Proposal 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.
C. In view of the intention that the Conceptual Design Proposal and the Work be unique, Artist
shall not make any additional exact duplicate reproductions of the Conceptual Design Proposal
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.
d. Artist reserves every right available under the Federal Copyright Act to control the making and
dissemination of copies or reproductions of the Conceptual Design Proposal and/or Work, except as
those rights are limited by this Agreement. If Artist is selected to proceed as the Project artist, City
may make and disseminate photographs, drawings, and other two-dimensional reproductions of the
Conceptual Design Proposal and/or Work and accompanying materials for any municipal
purpose. All reproductions by the City shall contain a credit to the Artist and a copyright notice
substantially in the following form: "Ccs date,Artist's name."
e. Nothing in this Agreement shall prevent the Artist from using images of the Conceptual Design
Proposal and/or Work for marketing and promotional purposes in connection with the Artist's
business.
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.
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ARTICLE 6
WARRANTIES OF TITLE AND COPYRIGHT
a. Artist represents and warrants that:
i. Conceptual Design Proposal and/or Work shall be the original product of the Artist's sole
creative efforts.
ii. Conceptual Design Proposal and/or Work is and will be unique and original, and does not
infringe upon any copyright or the rights of any person;
iii. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the
Conceptual Design Proposal and/or Work or any copyright related thereto that may affect or
impair the rights granted pursuant to this Agreement;
iv. Conceptual Design Proposal and/or Work (or duplicate thereof) have not been accepted for
sale elsewhere;
V. Artist has the full power to enter into and perform this Agreement and to make the grant of
rights contained in this Agreement; and
vi. 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 7
ARTIST AS 1NDEPENDENT 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 8
INDEN [NIFICATION
8.1. Generallndemnity.
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
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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.
8.2. 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 FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR
EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO,
ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE
OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT
VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City
expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the
exclusive obligation of Artist.
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ARTICLE 9
MISCELLANEOUS
9.1. 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.
9.2. Entire Agreement.
This writing embodies the entire agreement and understanding between the Parties hereto, and there are no
other agreements and understandings, oral or written, with reference to the subject matter hereof that are not
merged herein and superseded hereby.
9.3. Amendments.
No alteration, change, modification, or amendment of the terms of this Agreement shall be valid or effective
unless made in writing and signed by both parties hereto and approved by appropriate action of City.
9.4. Waiver.
No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent
default of any terms, covenants, and conditions of this Agreement. The payment or acceptance of fees for
any period after a default shall not be deemed a waiver of any right or acceptance of defective performance.
9.5. Governing Law and Venue.
If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this
Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United
States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be
construed in accordance with the laws of the State of Texas.
9.6. Successors and Assigns.
Neither party hereto shall assign, sublet, or transfer its interest herein without prior written consent of the
other party, and any attempted assignment, sublease, or transfer of all or any part hereof without such prior
written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City
and Artist and their respective successors and permitted assigns.
9.7. No Third-Party Beneficiaries.
The provisions and conditions of this Agreement are solely for the benefit of 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.
9.8. Severability.
If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected or impaired.
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9.9. Force Majeure.
It is expressly understood and agreed by the Parties to this Agreement that, if the performance of any
obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather;
governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots;
material or labor restrictions; transportation problems; or any other circumstances which are reasonably
beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the
same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so
obligated or permitted shall be excused from doing or performing the same during such period of delay, so
that the time period applicable to such design or construction requirement shall be extended for a period of
time equal to the period such party was delayed.
9.10. Coni act Construction.
The Parties acknowledge that each party and, if it so chooses, its counsel, have reviewed and revised this
Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party must not be employed in the interpretation of this Agreement or any amendments
or exhibits hereto.
9.11. Fiscal Funding Out.
If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to
appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may
terminate this Agreement to be effective on the later of(i) thirty (30) days following delivery by City to
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.
9.12. Captions.
Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part
of this Agreement.
9.13. 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.
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9.14. 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.
9.15. Survival Provision.
The provisions contained in Articles 5 (Ownership and Intellectual Property Rights), 6 (Warranties of Title
and Copyright), 7 (Artist as an Independent Contractor), 8 (Indemnification), and 9.13 (Right to Audit) shall
survive the termination or expiration of this Agreement.
9.16. 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.
9.17. Time Extensions.
The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement.
ARTICLE 10
NOTICES
All notices, requests, demands, and other communications which are required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt
thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt
requested, postage prepaid, as follows:
1. CITY OF FORT WORTH: Fernando Costa,Assistant City Manager
City Manager's Office
City of Fort Worth
1000 Throckmorton Street,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,Public Art
Arts Council of Fort Worth& Tarrant County
1300 Gendy Street
Fort Worth, Texas 76107
2. ARTIST David Franklin
9223 Harris Ave. NE
Indianola WA 98342
Agreement Between the City of Fort Worth and Page 13 of 18
David Franklin for a Conceptual Design Proposal for Public Art for Westcreek Drive
Execution Copy 7/7/16
IN WITNESS HEREOF.the Parties hereto have executed this Agreement as of the Effective Date.
CITY OF FORT W RTH ARTIST
by: v
Ferno C Davi F in
Assi t City Manager
APPROVED AS TO FORM
AND LEGALITY:
'p, /� "/
Jessica San vang
Assistant i Attorney 11
Form 1295:Not required
ATTESTED BY: � F®��
Mary J.Kayser 10
City Secretary V
Contract Authorization:
M&C—No M&C Required
OFFICIAL RECORD
C1T'Y SECRETARY
FT, WORTH, TX
Agreement Between the City of Fort Worth and Page 14 of 18
David Franklin for a Conceptual Design Proposal for Public Art for Westcreek Drive
Execution Copy 7!7/16
Exhibit A: Site
+ HAL
NORTH mo
I
Agreement Between the City of Fort Worth and Page 15 of 18
David Franklin for a Conceptual Design Proposal for Public Art for Westcreek Drive
Execution Copy 7M16
Exhibit B: Budget Form
FORT WORTH PUBLIC ART PROJECT BUDGET
Please complete this form and attach a signed receipt or estimate complete with per unit
costs(no lump sums)for all Items designated with an asterisk(*).Cost increases must
also have a written estimate attached.
ARTIST'S FEE
TRAVEL
(For artists who live more than 50 miles from Fort Worth)
Airfare
Car Rentai
Per Diem Expenses at:per day
Mileage at:per mile
INSURANCE
Auto/Hired Vehicle Liability
General Liability for Artist/Subcontractors
Worker's Comp./Employer's 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 Mete 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$_per hour)Total
Subcontracted Labor*(Total)
Facility/Equipment Rental(used exclusively for this project)related to fabrication
SITE PREPARATION
(Do not include costs covered by FWPA,City of Fort Worth or others)
Test Drilling'
Removal'
LandscapingllRigation•
Electrical Modifications'
Water Work/Mechanical Devices
Other"
(Revised May?01 i)
Agreement tsem een the laity of f ort Worth anQ Page l b of lb
David Franklin for a Conceptual Design Proposal for Public Art for Westcreek Drive
Execution Copy 7n116
TRANSPORTATION
Materials to Fabrication Site'
Finished Work to Installation Site'
Other'
BASEIMOUNTING
Base
Mounting Devices and Components
Foundation/Footing
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 Police/Securky'
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 Between the City of Fort Worth and Page 17 of 18
David Franklin for a Conceptual Design Proposal for Public Art for Westcreek Drive
Execution Copy 7/7/16
Exhibit C: Sales Tax Exemption
maate.ep
1C tom's o'wn
TEXAS SALES AND USE TAX EXEMPTION CERTIFICATION
Now or purcriww.grm or agency rv5 a _a
City of Fort worth,Texas
Mdew( At numbor,P o Soo or Rtaute maaber) PWw(flow code and ft~1000 Throckmorton Street 817-392.8360
cay.sow.DP coact
Fort Worth,Texas 70102
I,the purdwer named above,claim an exemption from payment of sales and use tawes(for the purchase of taxable
items described below or on the attached order or invoice)from:
Seller: N
Street address: Stale,ZIP coast
Description of Nems to be purchased or an the attached order or invoice:
All Items except motor vehicles as listed below
Purchaser cleirris this exempbon for the following reason:
Municipality,0overnmenttal Entity
I understand fud 1 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 Tex Code and/or all applicable law.
I&Kkn tandtistNis a atrMneloAlsom togive an exemption cerNAsale to fie sederlbrlmrable Nems Wet/kww,at Nie tineolpurchase,
wiifl6e used in a merrnerof/wUmn Nrat expressed in itis certiBcale,arrddepe nit on hire amount oflax evaded,tie offense may range
tl om a pass C mtsdsmsaw to a AMmy of Nre second degree.
P 7AM Oda
hdre� Finance Direclor/CF0 March 23,2015
NOTE: This certificate carrot be issued for Nie purchase,lease,or rental of a motor vehicle.
THIS CERTIFICATE DOES NOT REQUIRE A NUMBER TO BE VAUD.
Sales and Use Tax"Exemption Numbers'or"Tax Exampr Numbers do not exist
This certificate should be fu nished lo the supplier.Do not send the comlpleted cerlibrste to the Comptroller of Public Accounts.
Agreement Between the City of Fort Worth and Page 18 of 18
David Franklin for a Conceptual Design Proposal for Public Art for Westcreek Drive
Execution Copy 7!7/16