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HomeMy WebLinkAboutContract 48195 CITY SCREWWA012 COWPACT w®. AGREEMENT BETWEEN THE CITY OF FORT WORTH AND BALL-NOGUES DESIGN STUDIO, LLC FOR CONCEPTUAL DESIGN PROPOSAL FOR PUBLIC ART FOR MONTGOMERY STREET This Agreement is entered into this 4� day of` , 2016, by and between the City of Fort Worth, a home-rule municipal corporation of the State of Texas, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and Ball-Nogues Design Studio, LLC, a California business, located at 2018 N. Vine Street, Los Angeles, CA, 90068 and acting by and through Benjamin Ball, its duly authorized representative. City has designated the Arts Council of Fort Worth and Tarrant County, Inc.,to manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art project manager. WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents,to commemorate the City's rich cultural and ethnic diversity,to integrate the design work of artists into the development of the City's capital infrastructure improvements, and to promote tourism and economic vitality in the City through the artistic design of public spaces; WHEREAS, City is designing and constructing improvements to Montgomery Street, a major gateway into the Cultural District and the new Will Rogers Memorial Center(WRMC)Arena; improvements include pedestrian and bike-friendly wide sidewalks with trees and benches, on-street bike lanes, center turn lanes,two signaled pedestrian crosswalks and underground relocation of many of the overhead utilities; WHEREAS, funding for public art for this project has been allocated from two sources that are associated with specific streets that intersect with Montgomery Street: the 2007 Critical Capital Program (Crestline Drive) and the 2004 Bond Program (Harley Avenue), 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, due to the anticipated increase in pedestrian and bike activity the project will foster, staff developed the Project Outline which recommends an artwork at a qualifying, high-use pedestrian location(s) which could serve as an experiential, wayfinding device for pedestrians and as a traffic calming device, and the Project Outline was approved by the Fort Worth Art Commission("FWAC") on January 11, 2016; WHEREAS, the FWAC is overseeing an artist selection process in accordance with the Project Outline and the guidelines in the Fort Worth Public Art Master Plan; Agreement Between the City of Fort Worth and Page 1 of 19 Ball-Nogues Studio,LLC for a Conceptual Design Proposal for Public Art for Montgomery Street OFFICIAL RECORC Execution Copy 7/7/16 CI'�Y�ECRE "A� ' F fl- Wn ��, 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; 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: I.I. Agreement—Means and includes this Agreement between the City of Fort Worth and Ball- Nogues Design Studio,LLC for Conceptual Design Proposal of public art for the Site. 1.2. Artist—Means and includes Ball-Nogues Design Studio,LLC. 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. Agreement Between the City of Fort Worth and Page 2 of 19 Ball-Nogues Studio,LLC for a Conceptual Design Proposal for Public Art for Montgomery Street Execution Copy 7/7/16 E 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. 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 Montgomery Street between Camp Bowie Boulevard (north) and I-30 (south) in Council District 7, and specifically the locations that qualify for the use of the designated funding sources, which include Montgomery at Crestline Drive, Montgomery at Harley Avenue, Montgomery at Lansford Lane (provided there is visibility from Gendy Street), and a portion of the City owned R.O.W. along the east side of Montgomery Street that includes part of the surface parking lot at the FWMSH, 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. Scone 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 11,2016 at 11 AM Central Standard Time. C. Artist or a member of their firm shall travel to Fort Worth for a site visit in advance of preparing a Conceptual Design Proposal,scheduled for September 21,2016. d. 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. Agreement Between the City of Fort Worth and Page 3 of 19 Ball-Nogues Studio,LLC for a Conceptual Design Proposal for Public Art for Montgomery Street Execution Copy 7/7/16 Y r e. Artist shall present the Conceptual Design Proposal to stakeholders and the public in a separate 15 minute presentation while in Fort Worth,Texas, at a mutually agreeable date and time as part of that trip. f. Artist shall allow video recording and photography of his/her Conceptual Design Proposal presentation to the Artist Selection Panel. g. 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. h. Artist shall make two trips 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. 2.3. City Assistance. Upon request by Artist, City shall promptly fumish 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 participating in the site visit in Fort Worth, 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 $268,809.00 which includes a $33,523.00 contingency and which includes all costs for materials, labor, fabrication, delivery, installation, insurance, transportation, travel, Artist's fee of 15%, and all other associated costs for the Work. Budget estimate should also include material or Agreement Between the City of Fort Worth and Page 4 of 19 Ball-Nogues Studio,LLC for a Conceptual Design Proposal for Public Art for Montgomery Street Execution Copy 7/7/16 a 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. 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@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 THREE THOUSAND ONE HUNDRED HUNDRED FIFTY DOLLARS AND NO CENTS ($3,150.00), which shall constitute full compensation for Agreement Between the City of Fort Worth and Page 5 of 19 Ball-Nogues Studio,LLC for a Conceptual Design Proposal for Public Art for Montgomery Street Execution Copy 7/7/16 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. hereofi. FIVE HUNDRED AND DOLLARS AND NO CENTS ($500.00) within thirty (30) calendar days after Artist or a member of their firm travels to Fort Worth and participates in the site visit. ii. SEVEN HUNDRED FIFTY DOLLARS AND NO CENTS ($750.00) 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. iii. 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 not the Artist was selected to proceed to the next phase of the Project after FWAC's selection of the Project artist). iv. City shall reimburse Artist for reasonable travel expenses incurred for the two trips, 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$560.00(copy of receipts must be furnished); (ii) two nights lodging not to exceed $340.00 (copy of receipts 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 $206.00; (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$208.00 (copies of receipts must be furnished); Reimbursement payment shall be made within (30) days of the date Artist's invoices (with copies of required receipts attached) is received by Project Manager for a total amount(for both trips combined)not to exceed$1400.00. 3.3. Sales Taxes. Agreement Between the City of Fort Worth and Page 6 of 19 Ball-Nogues Studio,LLC for a Conceptual Design Proposal for Public Art for Montgomery Sheet Execution Copy 7/7/16 E 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 employee with a view toward securing favorable treatment with respect to the awarding, amending, or snaking 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. Agreement Between the City of Fort Worth and Page 7 of 19 Ball-Nogues Studio,LLC for a Conceptual Design Proposal for Public Art for Montgomery Street Execution Copy 7/7/16 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 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 Agreement Between the City of Fort Worth and Page 8 of 19 Ball-Nogues Studio,LLC for a Conceptual Design Proposal for Public Art for Montgomery Street Execution Copy 7/7/16 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 fixture 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: "©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. 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 Agreement Between the City of Fort Worth and Page 9 of 19 Ball-Nogues Studio,LLC for a Conceptual Design Proposal for Public Art for Montgomery Street Execution Copy 7/7/16 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 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 perforniing 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 INDEMNIFICATION 8.1. 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 HIND 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. Agreement Between the City of Fort Worth and Page 10 of 19 Ball-Nogues Studio,LLC for a Conceptual Design Proposal for Public Art for Montgomery Street Execution Copy 7/7/16 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. 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. Agreement Between the City of Fort Worth and Page 11 of 19 Ball-Nogues Studio,LLC for a Conceptual Design Proposal for Public Art for Montgomery Street Execution Copy 7/7/16 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 Assians. 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. 9.9. Force Maiet ure. 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. 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 Between the City of Fort Worth and Page 12 of 19 Ball-Nogues Studio,LLC for a Conceptual Design Proposal for Public Art for Montgomery Street Execution Copy 7/7/16 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. Rimht 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. 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. Agreement Between the City of Fort Worth and Page 13 of 19 Ball-Nogues Studio,LLC for a Conceptual Design Proposal for Public Art for Montgomery Street Execution Copy 7/7/16 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 pennitted 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 Ball-Nogues Design Studio, LLC Benjamin Ball, Representative 2018 N.Vine St Los Angeles, CA 90068 IN WITNESS HEREOF,the Parties hereto have executed this Agreement as of the Effective Date. CITY OF FORT WORTH ARTIST by: ��ezytuttl LIL i Fernando Costa Ball-Nogues besign Studio,LLC Assistant City Manager Benjamin Ball,Representative APPROVF,D AS TO FORM AND L GA QTY: Jessica ngsvang AssistIff ity Attorney 11 Agreement Between the City of Fort Worth and Page 14 of 19 Ball-Nogues Studio,LLC for a Conceptual Design Proposal for Public Art for Montgomery Street Execution Copy 7/7/16 Form 1295: Not required ATTE (07 op Mary J.Ka ,se U _ 04 ® City Secretary �� S� M&C—No M&C Required g8o 8� OFFICIAL RECORD CITY SECRETARY FT.!NORTH,TX Agreement Between the City of Fort Worth and Page 15 of 19 Ball-Nogues Studio,LLC for a Conceptual Design Proposal for Public Art for Montgomery Street Execution Copy 7/7/16 Exhibit A: Site with Qualifying Locations for Artwork(highlighted in yellow) XX Pill ...! b '� 'h U Rlk Tz u L - Hak $ � --c. �r � ; - 'a ' '� ,G f � . € r , 11-9 Qu K" Agreement Between the City of Fort Worth and Page 16 of 19 Ball-Nogues Studio,LLC for a Conceptual Design Proposal for Public Art for Montgomery Street Execution Copy 7/7/16 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 Rental Per Diem Expenses at$_per day Mileage at$_per mile INSURANCE Auto/Hired Vehicle Liability General Liability for Artist/Subcontractors Workers 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$_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* Landsca ping/Irrigation* Electrical Modifications* Water Work/Mechanical Devices Other* (Revised May 2011) Agreement Between the l ity o1 Port Worth and Vage 1/ of 19 Ball-Nogues Studio,LLC for a Conceptual Design Proposal for Public Art for Montgomery Street Execution Copy 7/7/16 TRANSPORTATION Materials to Fabrication Site* Finished Work to Installation Site* Other* BASEIMO UNTI NG 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 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 2019) Agreement Between the City of Fort Worth and Page 18 of 19 Ball-Nogues Studio,LLC for a Conceptual Design Proposal for Public Art for Montgomery Street Execution Copy 7/7/16 Exhibit C: Sales Tax Exemption Oyy IfteY.913ff6J TEXAS SALES AND USE TAX EXEMPTION CERTIFICATION Nam of purchaser,firm or agency City of Fort Worth,Texas Address(Street 8 number,PO,Box or Route number) Phans(Area code and number) 1000 Throckmorton Street 817-392-8360 City.State,ZIP code Fort Worth,Texas 76102 I,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 attectied order or invoice: All items except motor vehicles as listed below Purchaser claims this exemption for the following reason: Municipality,Governmental Entity 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 thatit is a criminal offense togive an exemption certificate to the seilerfortaxabte items that t know,atthe time of purchase, will be used in a mannerotherthan that expressed in this certificate,and depending on the amount oftax evaded,the offense may range from a Class C misdemeanor to a felony of the second degree. Purchase Title ------- Date — here` Finance Director/CFO March 23,2015 NOTE: This certificate cannot be issued for the purchase,lease,or rental of a motor vehicle. THIS CERTIFICATE DOES NOT REQUIRE A NUMBER TO DE VALID. Sales and Use Tax"Exemption Numbers"or"Tax Exempt'Numbers do not exist. This certificate should be furnished to the supplier.Do not send the completed certificate to the Comptroller of Public Accounts, Agreement Between the City of Fort Worth and Page 19 of 19 Ball-Nogues Studio,LLC for a Conceptual Design Proposal for Public Art for Montgomery Street Execution Copy 7/7/16