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HomeMy WebLinkAboutContract 49147 0� 891pr� ay '? CIN SECRETARY , R ��O CONTRACT NO. D a Q�G, `tib�&k EMENT BETWEEN THE CITY OF FORT WORTH AND N A. YANCEY FOR FINAL DESIGN OF PUBLIC ART b b FOR EAST ROSEDALE STREET (Miller - Stalcup) 0168 Ley his Agreement is entered into this ) � day of .)�� )U ,2017,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 John A.Yancey,an individual residing at 1179 Poquito Street, Austin, Texas 78702-2226. City has designated the Arts Council of Fort Worth and Tarrant County, Inc., to manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art project manager. WHEREAS,pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents,to commemorate the City's rich cultural and ethnic diversity,to integrate the design work of artists into the development of the City's capital infrastructure improvements,and to promote tourism and economic vitality in the City through the artistic design of public spaces; WHEREAS,the Texas Department of Transportation(TxDOT),with participation of the City of Fort Worth, is designing and constructing improvements on East Rosedale Street from Miller Avenue to Interstate Loop 820; WHEREAS, the 2004 capital improvement program includes funds for improvements on East Rosedale Street from US 287 to Stalcup Road; WHEREAS, funding for a public art project at the Site was included in the Public Art Plan for the 2004 Capital Improvement Program, adopted by the Fort Worth City Council on May 17, 2005 (M&C G- 14801); WHEREAS,the Project was included in the Fiscal Year 2017 Annual Work Plan and Budget,adopted by the Fort Worth City Council on October 25,2016(M&C G-18867)as part of the City's agreement with the Contract Manager for administration of the public art program; WHEREAS, on July 30, 2014, the City entered into a contract with Artist to develop preliminary artwork design(s)for the Site(Fort Worth City Secretary Contract No. 45804); LorEa'st; DRosedaleStreet Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public ArtExecution C WHEREAS, on September 14, 2015, the Fort Worth Art Commission(FWAC) approved the Artist's Preliminary Design, and recommended that Artist be retained to develop a Final Design based upon the Preliminary Design for public artwork to be incorporated into the Site; and WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be designed to promote the integrity of Artist's ideas and statements as represented by the Work. NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth,the sufficiency of which is hereby acknowledged, agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement,the following terms shall have the meanings as set forth below: 1.1. Agreement—Means and includes this Agreement between the City of Fort Worth and John A. Yancey for Final Design of public art for the Site. 1.2. Artist -Means and includes John A. Yancey. 1.3. Artwork Design—Means and includes both the Proposal and Final Design of the Work,which are defined in 1.3.a. and 1.3.b. below. 1.3.a. Preliminary Design — Means all preliminary drawings, sketches, prototypes, maquettes, models, narrative descriptions, budget estimates, and the like that are created by Artist in connection with this Agreement and/or any prior agreement between Artist and City or Artist and Contract Manager(in which the City is a third-party beneficiary)for the Work, including,but not limited to,the design concepts included in the proposal,which are attached hereto as Exhibit"A"and incorporated herein for all purposes. 1.3.b.Final Design—Means the Artist's final,proposed design of the Work for the Site,which is based upon the City-approved 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. Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 2 of 26 1.4. Contract Manager—Means and includes the Arts Council of Fort Worth and Tarrant County, Inc.,and/or its officers,directors, and employees. 1.5. City—Means and includes the City of Fort Worth,Texas. 1.6. Effective Date — Means and includes the date represented in the first paragraph of this Agreement, which shall be the official date of execution of this Agreement. 1.7. Final Design Deliverables—Means and includes those items set forth in Article 2.4 of this Agreement that Artist is required to submit to City for its review and approval. 1.8. Parties—Means and includes City and Artist. 1.9. 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. 1.10. 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. 1.11. Site—Means and includes the East Rosedale Street from Miller Avenue to Stalcup Road in Fort Worth, Texas 76112, 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 object(s)of art and design that are the subject of this Agreement, or any intermediary stage of completion of such work. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Artist Selection. City and Artist acknowledge that Artist's Preliminary Design was reviewed and approved by the FWAC on September 14,2015, and is the basis for executing this Agreement with Artist. 2.2. Scope of Services. a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary for developing a Final Design of the Work and for providing the Final Design Deliverables. Services Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 3 of 26 shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and input from Project Stakeholders and approval by City as set forth in this Agreement. C. The location at the Site where the Work shall be installed shall be mutually agreed upon by City and Artist. d. Artist, upon request of Contract Manager, shall provide information and/or attend meetings with appropriate City staff for purposes of risk assessment, safety review, sighting of the Work, and permitting. e. Artist shall travel to Fort Worth three (3) times to meet with City staff, Project Stakeholders, as well as other officials, as may be necessary,to complete the Final Design. f. Artist shall meet and coordinate with City staff and others, as necessary,to ensure proper integration of the Work into the Site. g. 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. h. 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 approval at dates and times mutually agreed upon. 2.3. City Assistance. Upon request by Artist, City shall promptly furnish all information and materials required by Artist to the extent that such materials are available. City,upon request by Artist,shall also provide correct scaled drawings of the Site, if available. Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 4 of 26 2.4. Final Design Deliverables. Within three(3)months after the Effective Date,Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables,as set forth in this Article 2.4 to City for approval. Final Design Deliverables shall consist of the following: a. Detailed,design illustrations of the Work for the Site from two vantage points, including a plan view, which shall be 20"x 30"and mounted on foam core and/or in a high resolution digital format, such as JPEG or TIF files; b. A written narrative of the Work,describing the following: (1)the Final Design concepts and timeline for completion; (2) proposed materials, fabrication, and installation methods for all elements of the Work, including information regarding Artist's subcontractor(s), if any, for the Work; and (3) maintenance requirements for all elements of the Work as dictated by Artist,along with cost estimates for annual maintenance; C. Comprehensive working drawings,detailing the means of installing all elements of the Artwork on the Site, together with other such graphic material to permit City to carry out structural design review. Professional Liability Insurance is required in all circumstances for on-site artwork requiring engineering and/or architectural services. City will conduct a review of structural design and other related graphic material prior to installation of the Artwork. Upon City's request, drawings must be signed and stamped by an engineer and/or architect licensed to work in the State of Texas.Artist will provide the Contract Manager a certificate of insurance for each licensed professional and provide City with a 30-day notice of cancellation of any policy required hereunder. d. A detailed budget, on the budget form attached hereto as Exhibit"C,"for installation of the Artwork in an amount not exceed One Hundred Forty-Three Thousand, Seven Hundred Forty-Three Dollars and Ninety-Six Cents($143,743.96),which includes all costs for materials,labor,fabrication, delivery, installation, insurance,transportation, remaining Artist's fee, travel expenses, and all other associated costs for the Work. The detailed budget will be for implementation of the Work through a Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 5 of 26 possible artwork commission contract with City,of which the contract is subject to the approval of the Fort Worth City Council. 2.5. Final Design Review. a. Upon completion and submission of the Final Design Deliverables and acceptance by Contract Manager, Artist shall present the Final Design to the FWAC for review and input at a regularly scheduled FWAC meeting. b. After presenting to the FWAC for initial input, Artist shall meet with the designated Project Stakeholders, City staff, and other City boards or commissions, as appropriate, to present the Final Design,at a date and time mutually agreed upon, for input. C. Artist shall then present the Final Design to the FWAC for approval at a regularly scheduled FWAC meeting. d. City shall notify Artist of its approval, or disapproval, of the Final Design within thirty (30) business days of Artist's presentation to the FWAC. e. If City disapproves of the Final Design,either in whole or in part,then City shall inform Artist of each revision. City may require Artist to make such revisions to the Final Design as City deems necessary in its sole discretion and/or for the Work to comply with applicable statutes,ordinances,or regulations of any governmental regulatory agency having jurisdiction over the Site for reasons of safety and security. f. Artist shall have thirty (30) calendar days from the date City informed Artist of the revision(s) to present the revised Final Design in conformance with City's requirements. g. If City disapproves of the resubmitted Final Design, any further Final Design resubmissions will be by mutual agreement of the Parties and subject to the procedures and terms in this Article. If the Parties desire not to continue with the resubmission process, then this Agreement will automatically terminate, with payment to the Artist per the payment schedule in Article 3 up through the date of termination. (See Article 4.4.d) Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 6 of 26 h. Upon City approval of the Final Design, any revisions made to a City-approved Final Design shall become part of the Final Design. Artist shall incorporate any City-approved revisions into the Final Design in conformance with City's requirements. Artist shall provide the Final Design presentation materials to the Contract Manager to become part of the City's Public Art archive owned by City. These documents,models, and/or drawings will be retained for archival and exhibition purposes. i. Upon the expiration ofthe Term(hereinafter defined)of this Agreement,if the Final Design is accepted by City and funding is appropriated by the Fort Worth City Council, negotiations for fabrication, delivery, and installation of the Work shall commence, which shall become part of the deliverable under any anticipated artwork commission contract. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Total compensation to Artist under the Agreement shall not exceed FORTEEN THOUSAND FOUR HUNDRED SEVENTY-TWO DOLLARS AND SIXTY-ONE CENTS($14,472.61),which shall constitute full compensation for any and all costs associated with this Agreement, including, but not limited to, travel expenses,engineering and consulting fees,and services performed and materials furnished by Artist under this Agreement. Artist and City may amend this Agreement to allow for additional payment if additional services are required. 3.2. Payment Schedule. City agrees to pay Artist in the following installments set forth below, each installment to represent full and final,non-refundable payment for all services and materials provided prior to the due date thereof: a. THREE THOUAND,FIVE HUNDRED DOLLARS AND NO CENTS($3,500.00)upon execution of this Agreement. b. TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00)after Artist makes a presentation(s) of the Final Design to the FWAC and members of the community for feedback and input. Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 7 of 26 C. FIVE THOUSAND, FIVE HUNDRED DOLLARS AND NO CENTS ($5,500.00) within thirty (30) calendar days after Artist submits all of the Final Design Deliverables required under Article 2.4 of this Agreement and makes a presentation(s)of the Final Design to the FWAC. d. ONE THOUSAND,FOUR HUNDRED SEVENTY-TWO DOLLARS AND SIXY-ONE CENTS ($1,472.61)within thirty(30)calendar days after City's approval of the Final Design. d. City may pay Artist up to TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) for engineering and consulting fees in order to fulfill the terms of this Agreement. Such payment shall be made upon receipt of an invoice from Artist with the original invoice (a retainer fee of up to 50% is allowed)for such services attached thereto. 3.3. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Project. City shall supply Artist with the "Texas Certificate of Exemption,"in substantially the same form as that attached hereto as Exhibit"D"for use by Artist in the fulfillment of this Agreement. 3.4. Artist's Expenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on submissions to City 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 Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 8 of 26 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. 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 pursuant to the payment provision in Article 3, and Artist shall continue to provide the City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon payment in full of all monies due for services provided up to the effective date of termination, City shall have the right, in its sole discretion, to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up 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,City shall have the right,in its sole discretion, to pay Artist pursuant to the payment provision in Article 3 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 Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 9 of 26 of termination. If City chooses to pay Artist, then all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs,up to the effective date of termination shall become property of City. d. If termination is by mutual agreement of the Parties as set forth in Article 2.5,then City shall pay Artist per the payment schedule in Article 3 up through the date of termination. City shall have the right to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination. 4.5. Incapacity of Artist. a. In the event of Artist's death or Artist becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to death or incapacity. All work product produced by Artist, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs,up to the effective date of termination shall become property of City. b. Should Artist's Final Design have been approved, in the event of termination under this Article 4.5, City shall have the right to complete the Work, if feasible. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. ARTICLE 5 DISPUTE RESOLUTION a. If either Artist or City has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement,the Parties shall first attempt to resolve these issues through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten(10)business days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 10 of 26 conference,in person meetings,or other reasonable means to resolve any claim,dispute,breach,or other matter in question that may arise out of or in connection with this Agreement. b. If the Parties fail to resolve the dispute within sixty(60)calendar days of the date of receipt of the notice of the dispute,then the Parties shall submit the matter to mediation in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code,then in effect. Request for mediation shall be in writing, and shall request that the mediation commence not less than fifteen (15) or more than forty-five (45) calendar days following the date of request, except upon Agreement of the Parties. In the event City and Artists are unable to agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty(30) calendar days following the date of the request for mediation,then all the conditions precedent in this article shall be deemed to have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No provision of this agreement shall waive any immunity or defense. No provision of this Agreement constitutes consent to sue. If the Parties cannot resolve the dispute through mediation,then either party shall have the right to exercise any and all remedies available under law regarding the dispute.(See Article 4.3) ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1. General. a. Upon payment in full to Artist or pursuant to the applicable termination provision of this Agreement, the Artwork Design,Work,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 Artwork Design and Work. By execution of this Agreement, Artist grants to the City an exclusive, perpetual, royalty free, and irrevocable license to graphically depict and 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 Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 11 of 26 and Work intended to promote or benefit City,its public services or its public purposes,regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non-commercial purpose. b. 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. C. Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Artwork Design and Work, except as those rights are limited by this Agreement. City may make and disseminate photographs, drawings, and other two- dimensional reproductions of the Artwork Design and 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." d. Nothing in this Agreement shall prevent the Artist from using images of the Artwork Design and Work for marketing and promotional purposes in connection with the Artist's business. e. City is not responsible for any third-party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. 6.2. Artist's Address. Artist shall notify City of changes in Artist's address as set forth in Article 12. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions that require the express approval of Artist. Notwithstanding this provision,City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights. ARTICLE 7 WARRANTIES OF TITLE AND COPYRIGHT a. Artist represents and warrants that: L Artwork Design and Work shall be the original product of the Artist's sole creative efforts. Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 12 of 26 ii. Artwork Design and Work are and will be unique and original, and do not infringe upon any copyright or the rights of any person; iii. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork Design and Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; iv. Artwork Design and Work(or duplicate thereof)have not been accepted for sale elsewhere; V. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and vi. All services performed hereunder shall be performed in accordance with all applicable laws, regulations,ordinances,etc.,and with all necessary care,skill and diligence. ARTICLE 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. GeneralIndemnity. 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 Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 13 of 26 LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE)AND/OR PERSONAL INJURY(INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS,OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM THE ACTS, ERRORS, OR OMMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTISTS 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 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. 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, Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 14 of 26 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 10 EQUAL OPPORTUNITY a. Artist shall not engage in any unlawful discrimination based on race,creed,color,national origin,sex, age, religion, disability, marital status, citizenship status, sexual orientation or any other prohibited criteria in any employment decisions relating to this Agreement, and Artist represents and warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled,terminated,or suspended in whole or in part,and Artist may be debarred from further agreements with City. ARTICLE 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. 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 City. Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 15 of 26 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 Mai eure. 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 Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 16 of 26 the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not,the party so obligated or permitted shall be excused from doing or performing the same during such period of delay,so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. 11.10. Contract Construction. 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 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. 11.12. Ca tiu ons. 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 200 Texas 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 Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 17 of 26 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 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. 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. 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: Assistant City Manager City Manager's Office City of Fort Worth 200 Texas Street,Third Floor Fort Worth,Texas 76102 Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 18 of 26 Copies to: City Attorney Office of the City Attorney City of Fort Worth 200 Texas Street,Third Floor Fort Worth,Texas 76102 Martha Peters,Vice President of Public Art Arts Council of Fort Worth&Tarrant County 1300 Gendy Street Fort Worth, Texas 76107 2. ARTIST John A. Yancey 1179 Poquito Street Austin,TX 78702-2226 IN WITNESS HEREOF,the Parties hereto have executed this Agreement as of the Effective Date. CITY OF FORT WORTH JOHN A.YAN +Y 7.� by: a«d. Fernando Costa Assistant City Manager Contract Compliance Manager By signing,I acknowledge that I am the person responsible for the momorm nd administration of this contract,including et ance rting requirements. Name:Alida Labbe Title: Public Art Project Manager APPROVE TO FORM AND LEGA I Y: Jessica Sang(vp6g Assistant City Attorney Form 1295:Not required F O&). A E D BY: � : ,•.O OFFICIAL RECORD ai J.Kayser `= CITY SECRETARY City Secretary FT.WORTN9 TX Contract Authorization: P►S M&C—No M&C Required Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 19 of 26 Exhibit A: Prelimina Design M Sketch of Artwork at Site y. ITONT VIEW RJGIff&LEFT AV LL CE=NTER NVALL SCIUMLITIC SCH F14IATIC Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 20 of 26 r BACK VIEW k RICUT,-LEFTWALL CENTER WALL Preliminary Concept for Artwork Layout I Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 21 of 26 Preliminary Design: The project consists of the following primary elements: 1) Three shaped walls constructed of reinforced CMU blocks and covered in ceramic mosaic; 2)A poured and stained concrete plaza floor plan designed in the shape of the Stop Six area; 3) Community Plaque Insets. The subject matter references historic and cultural imagery and symbols that represent the Interurban train and metaphorically relate African American quilts and West African ancestral masquerade. The three wall elements situate on a concrete mini-plaza that is designed to mirror the shape of the Stop Six geographic area. The front boundary of the mini-plaza concrete floor references East Rosedale,the back boundary references Ramey,the left boundary references Stalcup, and the right boundary references Miller. In this way, actual historic sites within the Stop Six neighborhood can be physically located on the concrete plaza and symbolically commemorated. Through community input and participation, stakeholder institutions and organizations,historic individuals and landmarks will be identified in the floor of the artwork. Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 22 of 26 Exhibit B: The Site EAST ROSEDALE STREET—Miller Avenue to Stalcup Road WN ilk 7 it �•� -r ..! i.�' � -� .�t •� '� ILI lip Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 23 of 26 Exhibit C: Budget Form FORT WORTI .PUBLIC ART PROJECT BUDGET', Please comptete;this form-and attach a signed receipt or eitimate complete with per unit costs tno lump i6ms)for ail;itetns daslgnatad with an asterisk('),Qgst increases must alsa`have a y ria)*estimate attached. ARTIST'S FEE TRAVEL (For artists who live more than 50 miles from Fort Worth) Airfare Car Rental Per Diem Expenses at 5 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 matedais.Itemize all anticipated aspects and components with per unit cost estimates) Materials*Total FABRICATION COSTS (Include and itemize all portions of subcontracted work and work to be completed by artist) Artist's Labor(_hours at S—per hour)Total Subcontracted Labor*(Total) 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` (Revised May 2011) Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 24 of 26 TRANSPORTATION Materials to Fabrication Site* Finished Work to Installation Site* Other* BASEIMOUNTING Base Mounting Devices and Components Foundation/Footing Other INSTALLATION COSTS (Costs must include allowance for after hours installation,if applicable.Please attach a complete list of equipment and individual estimates with this form) Subcontracted Labor* Scaffolding* Equipment Rental related to installation* Off-duty Police/Security* Traffic Barriers* Storage Facility Rental* City Permits Display Devices Fireproofing* Site Restoration* Other* LIGHTING Designers* Fixtures* Bulbs* Site Preparation* Installation* GRAND TOTAL Please make any necessary notes here: Prepared By: Date: (Revised May 2011) Agreement Between the City of Fort Worth and John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 25 of 26 Exhibit D: Sales Tax Exemption .�et�eteart TEXAS SALES AND USE TAX EXEMPTION CERTIFICATION Name of pwdmser,firm at agency City of Fort Worth,Texas Address(Street&number,Ro.aux of Routo numbed PIwne(Area code and number) 200 Texas Street 817-392-8360 cav,Slats,XIP code Fork Worth,Texas 76102 1,the purchaser named above,claim an exemption from payment of sates and use taxes(for the purchase of taxable Items described below or on the attached order or invoice)from: Seller: Ah Vendors Street address: — __ _ _City,State,ZIP code: Description of items to be purchased or on the attached 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 that it is a cdmfnal offense to give an exemption coffifica(e to the seilertortaxable items that I know,of the time ofpurchase, will be used In a mannorotherthan that expressedin this cet6ficate,and depending on tho amountoftax evaded,the olfenso may range from a Class C misdemeanor to a felony of the second degmo. Purchaser THIO halo sign E Finance Director/CFO January 3,2017 NOTE: This certificate cannot be 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 John A.Yancey for Final Design of Public Art for East Rosedale Street Execution Copy 5/22/17 26 of 26