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HomeMy WebLinkAboutContract 48602 CITY SECRETARYI CONTRACT NO. AGREEMENT BETWEEN THE CITY OF FORT WORTH AND VOLKAN ALKANOGLU DESIGN,LLC FOR FINAL DESIGN OF PUBLIC ART FOR WESTCREEK DRIVE This Agreement, entered into this �' day of Ja J1 wq ly 2017 by and between the City of Fort Worth, a home-rule municipal corporation h the State of Texas, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and Volkan Alkanoglu DESIGN, LLC, a Massachusetts business,located at 15 Fernald Drive#22, Cambridge,MA 02138 and acting by and through Volkan Alkanoglu, its duly authorized representative. The City has designated the Arts Council of Fort Worth and Tarrant County, Inc., to manage this agreement on its behalf. The Contract Manager shall act through its designated Public Art project manager. WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances,the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents,to commemorate the City's rich cultural and ethnic diversity,to integrate the design work of artists into the development of the City's capital infrastructure improvements and to promote tourism and economic vitality in the City through the artistic design of public spaces; WHEREAS, City has completed improvements along Westcreek Drive, including new on street bike lanes and paved pedestrian trails from I-820 on the south to West Fuller Avenue on the north; 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 2017 Annual Work Plan, adopted by the Fort Worth City Council on October 25,2016 (M&C G-18867); 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 recommended an artist-designed pedestrian bridge as the desired approach for the artwork, and the Project Outline was approved by the Fort Worth Art Commission("FWAC") on January 11,2016; WHEREAS, the FWAC oversaw an artist selection process in accordance with the Project Outline and the guidelines in the Fort Worth Public Art Master Plan; and on September 12, 2016, the FWAC approved the Selection Panel's recommendation of Volkan Alkanoglu DESIGN, LLC for the project, and recommended that the Artist be retained for design of an artwork for the Site based on his proposal; WHEREAS, the Artist's "Drift" proposal would create a site-specific wood and steel cable art bridge inspired by the mid-century architecture of the neighborhood (and the work of iconic mid-century designers Charles and Ray Eames) and the natural formations found in the creek landscape; WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be designed; OFFICIAL RECORD CITY SECRETARY Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, FT.WORTR XX of 4 For Final Design of Public Art for Westcreek Drive E ecution copy 1/5/17 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 of Public Art for the Site. 1.2. Artist — Means and includes Volkan Alkanoglu DESIGN LLC, and/or his heirs, executors, administrators,legal representatives,successors,agents,subartists,contractors and assigns. 1.3. Artwork Designs — Means and includes the Design Proposal and Final Design of the Work, which is defined in 1.3.a. and 1.3.b.below. 1.3.a. Design Proposal — Means all preliminary drawings, sketches, narrative descriptions, budget estimates, and the like that are created by Artist in connection with the prior agreement between Artist and City for the Work(City Secretary Contract#48015)including, but not limited to, the design concept attached hereto as Exhibit"A"and incorporated herein for all purposes. 1.3.b.Final Design—Means Artist's final,proposed design of the Work for the Site,which is based upon the Design Proposal 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,employees. 1.5. City—Means and includes the City of Fort Worth. 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. Final Design Deliverables — Means and includes those items set forth in Article 2.6 of this Agreement that are required for City's review and approval. 1.8.Parties—Means and includes City and Artist. 1.9. Project — Means and includes the capital improvement/public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement. 1.10. 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. Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 2 of 24 For Final Design of Public Art for Westcreek Drive Execution copy 1/5/17 a 1.11, Site— Means and includes the 4800 — 5000 blocks of Westcreek Drive north of Interstate 20 and south of Kellis Park, between the point where the new sidewalks splits to follow each side of the drainage channel and Bilglade Road which is more particularly described in Exhibit`B,"attached hereto and incorporated herein by reference for all purposes. 1.12. Work—Means and includes the finished objects of art and design that are the subject of this Agreement,or any intermediary stage of completion of such works. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Artist Selection. City and Artist acknowledge that the Selection Panel's recommendation of the proposal submitted by Volkan Alkanoglu DESIGN,LLC,was approved by the FWAC on September 12,2016,as the basis for executing this Agreement with the Artist. 2.2. Scope of Services. a. Artist shall perform all services and will furnish all supplies,materials, and equipment as necessary for developing a 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. Upon beginning Final Design, Artist shall meet with community members, neighborhood associations, local business owners and stakeholders for input on the proposed design. C. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and input from Project Stakeholders and approval by City as set forth in this Agreement. d. Artist shall meet and coordinate with City staff, including Storm Water Management, Park staff and others,as necessary,to integrate the Work into the Site in terms of structural support for the Work. e. Upon request of City, Artist shall consult with a qualified art conservator and shall provide written maintenance recommendations for the Work from said conservator to the Contract Manager. £ The location at the Site on which the Work shall be installed shall be mutually agreed upon by City and Artist. 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 make a minimum of two (2) trips to Fort Worth,Texas for meetings and presentations as indicated above. Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 3 of 24 For Final Design of Public Art for Westcreek Drive Execution copy 1/5/17 i. 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. Implementation Budget Total. Artist shall develop a Final Design that is financially feasible relative to the budget for implementation. It is understood that the total budget for implementation of the Final Design is estimated to be THREE HUNDRED THIRTY TWO THOUSAND, SEVEN HUNDRED NINETY ONE DOLLARS ($332,791.00), reflecting total costs and inclusive of an artist fee of $49,919.00, materials, labor, fabrication, travel, transportation, construction, insurance, footings, installation, all associated costs for the Work and a 20% contingency of$56,574.47; Artist shall provide a detailed budget, on the budget form attached hereto as Exhibit"C,"for implementation of the Work through a possible artwork commission contract with City. The City's required insurance for implementation is attached hereto as Exhibit "D," and such costs for maintaining the levels of insurance outlined in Exhibit D shall be included in the implementation budget total. 2.4. 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. 2.5. 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 2.5 to City for approval. Final Design Deliverables shall consist of the following: i. Detailed, design illustrations for the Work for the Site, which shall be in a high-resolution digital format,such as JPEG or TIF files; ii. A final written narrative for the Work, describing the following: (1) Final Design concept and timeline for completion; (2)Proposed materials,fabrication,and installation methods for all elements of the Work, including information regarding Artist's subcontractor(s), if any; (3) Maintenance requirements for all elements of the Work as dictated by Artist, along with cost estimates for annual maintenance; and (4) Proposed public education program to be conducted by Artist during the commission of the Work; iii. A detailed final budget, on the budget form attached hereto as Exhibit"C," for final design and implementation of the Work in an amount not to exceed THREE HUNDRED THIRTY TWO THOUSAND, SEVEN HUNDRED NINETY ONE DOLLARS ($332,791.00), reflecting total costs and inclusive of an artist fee of $49,919.00, materials, labor, fabrication, travel, Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 4 of 24 For Final Design of Public Art for Westcreek Drive Execution copy 1/5/17 transportation, construction, insurance, footings, installation, all associated costs for the Work and a 20%contingency of$56,574.47; i. The detailed final budget will be for implementation of the Work through a possible artwork commission contract with City. ii. Comprehensive working drawings, detailing the means of installing all elements of the Work on the Site, together with other such graphic material as may be requested by City to permit City to carry out structural design review. Upon City's request, these drawings must be signed and stamped by an engineer and/or architect licensed to work in the State of Texas, as required by City. Artist will obtain and furnish to Contract Manager certificates of professional liability insurance from each such licensed professional and will require the City to be named as a "certificate holder" entitled to notice of cancellation/nonrenewal in accordance with standard practices. 2.6. Final Design Review. a. 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. Upon completion and submission of the Final Design Deliverables and acceptance by Contract Manager, Artist shall then present the Final Design to the FWAC for approval at a regularly scheduled FWAC meeting. d. City may require Artist to make such revisions to the Final Design as are necessary for the Work to comply with applicable statutes, ordinances, or regulations of any govermnental regulatory agency having jurisdiction over the Site for reasons of safety and security. e. City may also require Artist to make such revisions to the Final Design as City deems necessary in its sole discretion. f. Within thirty (30) calendar days of its receipt of Artist's submission of the Final Design, City shall notify Artist of its approval, or disapproval, of such submission and of each revision made in the Final Design. Revisions made pursuant to this Article 2.6,upon approval by City, shall become part of the Final Design. g. If the Final Design or any required revisions to the Final Design is disapproved by City, Artist shall have thirty(30)calendar days to resubmit the Final Design in conformance with City's requirements. h. If resubmitted materials are not approved by City, this Agreement may be terminated at City's sole discretion, with payment for work performed per the payment schedule in Article 3 up through the Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 5 of 24 For Final Design of Public Art for Westcreek Drive Execution copy 1/5/17 date of termination. Artist shall provide the Final Design presentation materials to Contract Manager to become part of City's Public Art archive. Upon the expiration of the Term,as hereinafter defined, of this Agreement,if the Final Design is accepted by City and funding is approved by the Fort Worth City Council, negotiations for fabrication, delivery, and installation of the Work shall commence, and shall become part of the deliverables under any possible subsequent artwork commission contract. i. Upon approval of the Final Design by City, Artist shall provide the Final Design presentation materials to the Contract Manager to become part of the City of Fort Worth Public Art archive owned by City. These documents, models and/or drawings will be retained for archival and exhibition purposes. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Total compensation to Artist under the Agreement shall be in an amount of TWENTY NINE THOUSAND,NINE HUNDRED SIXTY DOLLARS ($29,960.00),which shall constitute full compensation for any and all costs associated with this Agreement, including, but not limited to, artist's fee, engineering and consulting fees and services performed and materials furnished by Artist under this Agreement. Artist and City may amend this Agreement to allow for additional payment if additional services are required. 3.2. Payment Schedule. City agrees to pay Artist in the following installments set forth below, each installment to represent full and final,non-refundable payment for all services and materials provided prior to the due date thereof: a. FIVE THOUSAND DOLLARS AND NO CENTS ($5,000.00)upon execution of this Agreement. b. TEN THOUSAND DOLLARS AND NO CENTS ($10,000.00) within thirty (30) days after Artist submits the Final Design Deliverables as required under Article 2.5 of this Agreement and makes a presentation of the Final Design to the FWAC. C. NINE THOUSAND, NINE HUNDRED SIXTY DOLLARS AND NO CENTS ($9,960.00) within thirty(30) days after the City notifies the Artist of its approval of the Final Design. d. City may pay Artist in an amount up to FIVE THOUSAND DOLLARS AND NO CENTS ($5,000.00) for engineering and consulting fees and a conservator's consultation to fulfill the terms of this Agreement. Such payment shall be made upon receipt of an invoice from Artist with the original invoice(a retainer fee of up to 50%is allowed)for such services attached. 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`B"for use by Artist in the fulfillment of this Agreement. Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 6 of 24 For Final Design of Public Art for Westcreek Drive Execution copy 1/5/17 } 3.4. Artist' Expenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on submissions to City, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 4 TERM AND TERMINATION 4.1. Term. This Agreement shall be in effect from the Effective Date, and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City. 4.2. Gratuities. City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or given by Artist or any agent or representative to any City or Contract Manager official or employee with a view toward securing favorable treatment with respect to the awarding, amending,or making of any determinations with respect to this performance of this Agreement. 4.3. Termination for Cause. If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this Article 4.3 in accordance with the dispute resolution process set forth in Article 5 of this Agreement. If the Parties cannot resolve the dispute(s), then the disputing party shall thereupon have the right to terminate this Agreement upon the delivery of a written "Notice of Termination" specifying the grounds for termination. Termination of this Agreement under this provision shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. 4.4. Termination for Convenience. a. The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted thirty (30) calendar days before termination, specifying the grounds for termination. b. If the termination is for the convenience of City, City shall pay Artist for services actually rendered up to the effective date of termination, 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 Artist's receipt of payment in full of all monies due for services provided up to the effective date of termination, City shall have the right at its discretion to possession and transfer of title to the sketches,designs,and models already prepared and submitted or presented for submission to City by Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 7 of 24 For Final Design of Public Art for Westereek Drive Execution copy 1/5/17 Artist under this Agreement prior to the effective date of termination, provided that no right to fabricate or execute the Work shall pass to City. C. If termination is for the convenience of Artist,Artist shall remit to City a sum equal to all payments (if any)made to the Artist pursuant to this Agreement prior to termination. 4.5. Incapacity of Artist. a. In the event that Artist becomes incapable, legally or otherwise, of performing its duties and/or obligations under this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to incapacity. All finished and unfinished drawings, sketches, photographs, models, and any other work shall automatically become property of City. b. Should Artist's Final Design have been approved, in the event of termination under this Article 4.5, City shall have the right to complete the Work. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. ARTICLE 5 DISPUTE RESOLUTION If either Artist or City has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement,the Parties shall first attempt to resolve these issues through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute,or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort,either through email,mail,phone conference, in person meetings,or other reasonable means to resolve any claim, dispute, breach, or other matter in question that may arise out of, or in connection with this Agreement. If the Parties fail to resolve the dispute within sixty(60)calendar days of the date of receipt of the notice of the dispute, then the Parties may submit the matter to non-binding mediation upon written consent of the authorized representatives of both parties in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code,then in effect. Request for mediation shall be in writing, and shall request that the mediation commence not less than fifteen(15) or more than forty-five(45) calendar days following the date of request,except upon Agreement of the Parties. In the event City and Artists are unable to agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty(30) calendar days following the date of the request for mediation,then all the conditions precedent in this article shall be deemed to have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 8 of 24 For Final Design of Public Art for Westcreek Drive Execution copy 1/5/17 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 4.3) 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 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." Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 9 of 24 For Final Design of Public Art for Westereek Drive Execution copy 1/5/17 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 WARRANTIES OF TITLE AND COPYRIGHT Artist represents and warrants that: a. Artwork Design and/or Work shall be the original product of the Artist's sole creative efforts. b. 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; C. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork Design and/or Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; d. Artwork Design and/or Work(or duplicate thereof)have not been accepted for sale elsewhere; e. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and f. All services performed hereunder shall be performed in accordance with all applicable laws, regulations,ordinances,etc., and with all necessary care,skill and diligence. ARTICLE 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 INDEMNIFICATION 9.1. General Indemnity. a. ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 10 of 24 For Final Design of Public Art for Westcreek Drive Execution copy 1/5/17 CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT,OF WHATSOEVER KIND OR CHARACTER,WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM THE NEGLIGENT ACT, ERROR, OR OMMISSION OF ARTIST AND/OR ARTIST'S SUBARTISTS AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. b. Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained by Artist in connection with or incidental to performance under this Agreement. C. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. 9.2. Intellectual Property. Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY 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 Agreement Between the City of Fort Worth and Votkan Alkanoglu DESIGN,LLC, Page 11 of 24 For Final Design of Public Art for Westcreek Drive Execution copy 1/5/17 ORIGINALITY.City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artist. ARTICLE 10 EQUAL OPPORTUNITY a. Artist shall not discriminate against any employee or applicant for employment because of age, disability, race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. Artist shall take affirmative action to ensure that employees are treated equally during employment, without regard to their age, disability, race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. Such action shall include,but not be limited to, the following: Employment,upgrading, demotion, transfer, recruitment or pay or other forms of compensations, and selection for training, including,but not limited to,apprenticeship. Artist agrees to post in conspicuous places, available to employees and applications for employment, notices to be provided by the City setting forth the provision of this nondiscrimination clause. b. Artist shall in all solicitation or advertisements for employment placed on or on behalf of the Artist, state that all qualified applicants shall receive consideration for employment without regard to race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. C. Artist shall furnish all information and reports requested by City, and shall permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with such rules and regulations. d. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be debarred from further agreements with the City. ARTICLE 11 MISCELLANEOUS 11.1. Compliance. Artist shall comply with all Federal, state and local statutes, ordinances and regulations applicable to the performance of Artist's services under this Agreement. 11.2. Entire Agreement. This writing embodies the entire agreement and understanding between the Parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 12 of 24 For Final Design of Public Art for Westcreek Drive Execution copy 1/5/17 11.3. Amendments. No alteration, change, modification or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of the City. 11.4. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms,covenants,and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 11.5. 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. 11.6. Successors and Assigns. Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and their respective successors and permitted assigns. 11.7. No Third-Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 11.8 Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 11.9. Force 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 Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 13 of 24 For Final Design of Public Art for Westcreek Drive Execution copy 1/5/17 that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. 11.10. Contract Construction. The Parties acknowledge that each party and, if it so chooses, its counsel, have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 11.11. Fiscal Funding Out. If for any reason,at any time during any term of this Agreement,the Fort Worth City Council fails to appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may terminate this Agreement to be effective on the later of(i) thirty (30) days following delivery by City to Artist of written notice of City's intention to terminate or(ii)the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 11.12. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 11.13. Right to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Work (collectively "Records") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, the Artist shall make all Records available to the City at 1000 Throckmorton Street, Fort Worth, Texas or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. 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 described in this Article 11.13. 11.14. Certified MWBE. If applicable, Artist shall 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 City under the City's Business Diversity Enterprise Ordinance. 11.15. Survival Provision. The provisions contained in Articles 4.5 (Incapacity of Artist), 6 (Ownership and Intellectual Property Rights), 7 (Warranties of Title and Copyright), 8 (Artist as an Independent Contractor), 9 (Indemnification),and 11.13 (Right to Audit)shall survive the termination or expiration of this Agreement. Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 14 of 24 For Final Design of Public Art for Westcreek Drive Execution copy 1/5/17 11.16. 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. 11.17. Time Extensions. The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. ARTICLE 12 NOTICES All notices,requests, demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested,postage prepaid, as follows: 1. CITY OF FORT WORTH: Fernando Costa,Assistant City Manager City Manager's Office City of Fort Worth 200 Texas St. Fort Worth,TX 76102 Copies to: Sarah Fullenwider, City Attorney Office of the City Attorney 200 Texas St., Third Floor Fort Worth,TX 76102 Martha Peters,Vice President of Public Art Arts Council of Fort Worth&Tarrant County 1300 Gendy Street Fort Worth,TX 76107 2. ARTIST: Volkan Alkanoglu OFFICIAL RECORD Volkan Alkanoglu DESIGN,LLC CITY SECRETARY 15 Fernald Drive#22 Cambridge,MA 02138 FT.WORTH,TX IN WITNESS HEREOF,the Parties hereto have executed this Agreement on the Effective Date. CITY OF FORT WORTH ARTIST by: by: Fernando Costa Volkan Alkanoglu Assistant City Manager Volkan Alkanoglu DESIGN,LLC Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 15 of 24 For Final Design of Public Art for Westcreek Drive Execution copy 1/5/17 CONTRACT COMPLIANCE MANAGER By signing,I acknowledge that I am the person responsible for the monitoring and administration of this contract,including ensuring all performance and reporting requirements. Name: 1,V7✓ Z� Title: �J��GI�i t/' APPROVjjO FORM AND LEGALITY: L /---" r-lil Jessica Sangs,4ng Assistant City Attorney II Form 1295:not required ATTESTED BY: Mary Kayst�)) City Secretary a, No M&C Required OFFICIAL RECORD CITY SECRETARY FT. woRTH, TX Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 16 of 24 For Final Design of Public Art for Westcreek Drive Execution copy 1/5/17 Exhibit A:Preliminary Design w k sj C, l r Y 4°x'+6 - *, Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 17 of 24 For Final Design of Public Art for Westereek Drive Execution copy 1/5/17 Exhibit B: The Site + l fV' .r V'+ ed IN + 7 I x lv. P + it 77 VI 0 32 a + 4L $ 1 s a Jj� IT xa r Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 18 of 24 For Final Design of Public Art for Westcreek Drive Execution copy 1/5/17 nag W Ah No S! K MAW Ave 9 % Any, c re _7 q to " SOLL IT HIL S a 5t Y Y-Me 65 '3somin WMM Ch Co,.,rq Ave Hill P: Sl'v4 =we Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 19 of 24 For Final Design of Public Art for Westereek Drive Execution copy 1/5/17 Exhibit C: Budget FORT WORTH PUBLIC ART PROJECT BUDGET Please complete this form acid attach a signed receipt or estimate complete with per unit casts(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 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 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* Landscaping/Irrigation* Electrical Modifications* Water Work/Mechanical Devices Other* 4 (Revised May 2011) TRANSPORTATION Materials to Fabrication Site* Finished Work to Installation Site* Other* BASE/MOUNTING 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/Security' Traffic Barriers' Storage Facility Rental* City Permits Display Devices Fireproofing' Site Restoration' Other* LIGH71NG 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 Volkan Alkanoglu DESIGN,LLC, Page 21 of 24 For Final Design of Public Art for Westcreek Drive Execution copy 1/5/17 l Exhibit D: 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.). Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 22 of 24 For Final Design of Public Art for Westcreek Drive Execution copy 1/5/17 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. 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 Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 23 of 24 For Final Design of Public Art for Westcreek Drive Execution copy 1/5/17 i Y a Exhibit E: Sales Tax Exemption TEXAS SALES AND USE TAX EXEMPTION CERTIFICATION cram®of purchaser,ram cr ajafv yV City of Fort Worth,Texas hiRlcass(mar R mirnkar,P.0,Act at Rw(,nu ) Prbna trtraa cede and rwinber) 1000 Throckmorton Street 817-392-8300 Chi.$We,71P rx de 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 Wow 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 atlac6ad order or invoice: All items except motor vehicles as listed below PurOaser 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 lour. I understand fhatit Is a cr3miraf offense to give an exemption cartffacate to the seltertortaxable,Hems that t know,at the time ofpurchase, wif bbe used in a mannerotherthan thdtehpressed to this ceriitic&te,and depeudFr7gnrr Vie amount oflax evaded,fire offense nrayrange from a Class C misdemeanor to a felony of the second degree, Purdna sign here r Finance DirectorlCF0 March 23,2015 F NOTFI This certificate cannot he Issued for the purchase,lease,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 not send the completed certificate to the Comptroller of Public Accounts. Agreement Between the City of Fort Worth and Volkan Alkanoglu DESIGN,LLC, Page 24 of 24 For Final Design of Public Art for Westereek Drive Execution copy 1/5/17