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HomeMy WebLinkAboutContract 49441 CITY SECRETARY' l�j�/ CONTRACT NO. Y a 8� RECEIVED ® GREEMENT BETWEEN THE CITY OF FORT WORTH a ; AND CHRISTOPHER FENNELL, LLC, FOR N JUL 2 52017 PRELIMINARY DESIGN OF PUBLIC ART FOR CITY OFfoRs ,HE NORTH BEACH CORRIDOR LINEAR PROJECT O CITY SECRETARYETARY ,a &Z 9 S Z 1s Agreement is entered into this .Jay of , 2017, by and between the City of Fort Worth, a home-rule municipal corporation of the State of exas, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and Christopher Fennell LLC, a Limited Liability Corporation, located at 5104 Clairmont Avenue S., Birmingham, AL, 35222, and acting by and through Chris Fennell, its duly authorized member. 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 constructed street improvements in the North Beach Street Corridor, which includes North Beach Street from Golden Triangle Boulevard to Keller Hicks Road; Keller-Hicks Road to Timberland Boulevard; Vista Meadows Drive to Shiver Road;as well as, Keller-Hicks Road from Alta Vista Road to Park Vista Boulevard; WHEREAS, funds for the project have been allocated from the 2008 Capital Improvements Program and the 2007 Critical Capital Needs Program,and the Project was included in the Fort Worth Public Art Fiscal Year 2017 Annual Work Plan and Budget,adopted by the Fort Worth City Council on October 25,2016(M&C G-18867); WHEREAS, through a proposal-based process outlined in the Fort Worth Public Art Master Plan, which was conducted by Contract Manager with oversight of the Fort Worth Art Commission(FWAC),Artist was competitively selected as Alternate for this project; WHEREAS, the artist who had been originally selected for the project has withdrawn due to other commitments and the FWAC approved the alternate artist for project on May 8,2017;and WHEREAS, City and Artist wish to set out the terms and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: Agreement Between the City of Fort Worth and ®FF'C'ALREa �o Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12117 CITY SI{�ygCR ARY I i�W4�lI' N5 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 Christopher Fennell,LLC for Preliminary Design of public art for the Site. 1.2. Artist—Means and includes Christopher Fennell,LLC. 1.3. Artwork Design—Means and includes both the Proposal and Preliminary Design of the Work, which are defined in 1.3.a.and 1.3.b.below. 1.3.a. Proposal—Means all preliminary drawings,sketches,prototypes,maquettes,models, narrative descriptions, budget estimates,and the like that are created by Artists in connection with this Agreement and/or any prior agreement between Artists and City 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. Exhibit"A"was created by Artist pursuant to City of Fort Worth City Secretary Contract Number(CSC#)44549. 1.3.b. 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 for the Work. 1.4. Contract Manager—Means and includes the Arts Council of Fort Worth and Tarrant County, Inc.,and 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. Parties—Means and includes City and Artist. 1.8. Preliminary Design Deliverables—Means and includes those items set forth in Article 2.3 of this Agreement that Artist is required to submit to City for its review and approval prior to proceeding to the Final Design phase of this Agreement. 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 FWAC's appointed representative and others as may be deemed appropriate by the City. 1.11. Site—Means the North Beach Street Corridor,which includes North Beach Street from Golden Triangle Boulevard to Keller Hicks Road;Keller-Hicks Road to Timberland Boulevard;Vista Meadows Drive Agreement Between the City of Fort Worth and Page 2 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 to Shiver Road; and Keller-Hicks Road from Alta Vista Road to Park Vista Boulevard, which are more particularly described on 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. Scope of Services. a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary for developing a Preliminary Design of the Work and for providing the Preliminary Design Deliverables. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and input from Project Stakeholders and approval by City as set forth in this Agreement. C. Prior to commencing the Preliminary Design, Artists shall meet with and seek input from Project Stakeholders. d. The location at the Site where the Work shall be installed shall be mutually agreed upon by City and Artist. e. Artist, upon request of Contract Manager, shall provide information and/or attend meetings with appropriate City staff for purposes of risk assessment, safety review, sighting of the Work, and permitting. f. Artist shall explore concepts for the Work,within the implementation budget set forth in Article 2.3. g. Artist shall meet and coordinate with Contract Manager and others, as necessary, to explore the feasibility of integrating the Work into the Site in terms of structural support, lighting, electricity, or other infrastructure needs to support the Work. h. Artist shall present the Preliminary Design to Project Stakeholders,the appropriate City staff,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. i. Artist shall make a minimum of one (1) trip to Fort Worth, Texas for meetings and presentations as required in this Agreement. 2.2. Citv 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 Page 3 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 2.3. PreliminarDesign 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 2.3 to City for approval. Preliminary Design Deliverables shall consist of the following: L Preliminary design illustrations showing the proposed Work from two vantage points, including a plan view,which shall be at least 20"x 30"and mounted on foam core and/or in a high resolution digital format such as JPEG or TIF files; ii. A narrative description of the Artist's concept, proposed materials and collection method(s) for items solicited from the community, fabrication, and installation methods, timeline for completion and maintenance,and anticipated annual maintenance requirements; iii. A preliminary budget estimate, on the budget form attached hereto as Exhibit "C," for implementation of a final design of the Work in an amount up to SEVEN HUNDRED FIFTY-TWO THOUSAND, EIGHT HUNDRED FIFTY-FOUR DOLLARS AND NO CENTS ($752,854.00), which includes all costs for materials, labor, fabrication, delivery, installation, insurance, travel costs,transportation,Artist's fee, and all other associated costs for the Work;and iv. Material or fabrication samples and/or prototype models for the Work that show the size and placement of the Work in relation to the Site,as appropriate. 2.4. Preliminary Design Review. a. Artist shall present the Proposal 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 Proposal, at a date and time mutually agreed upon,for input. C. Upon completion of the Preliminary Design Deliverables, Artist shall then present the Preliminary Design to the FWAC for approval at a regularly scheduled FWAC meeting. d. City shall notify Artist of its approval, or disapproval, of the Preliminary Design within thirty (30) business days of Artist's presentation to the FWAC. e. If City disapproves of the Preliminary Design,either in whole or in part,then City shall inform Artist of each revision to be made to the Preliminary Design. City may require Artist to make such revisions to the Preliminary 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. Agreement Between the City of Fort Worth and Page 4 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 f. Artist shall have thirty (30) calendar days from the date City informed Artist of the revision(s) to present the revised Preliminary Design in conformance with City's requirements. g. If City disapproves of the resubmitted Preliminary Design, any further Preliminary Design resubmissions will be by mutual agreement of the Parties and subject to the procedures and terms in this Article. If the Parties desire not to continue with the resubmission process,then this Agreement will automatically terminate,with payment for work performed per the payment schedule in Article 3 up through the date of termination.(See Article 4.4.d) h. Upon City approval of the Preliminary Design, any revisions made to a City-approved Preliminary Design shall become part of the Preliminary Design. Artist shall incorporate any City-approved revisions into the final design in conformance with City's requirements. Any revisions shall become part of any Final Design Deliverables if the Artist proceeds to the final design phase. Artist shall provide the Preliminary 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 up to SEVENTEEN THOUSAND, FOUR HUNDRED EIGHTY DOLLARS AND NO CENTS ($17,480.00), which shall constitute full compensation for any and all costs associated with the Agreement, including, but not limited to travel costs and services performed and materials furnished by Artist under this Agreement. Artist and City may amend this Agreement to allow for additional payment if additional services are required. 3.2. Payment Schedule. a. City agrees to pay Artist in the following installments set forth below, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof: i. TWO THOUSAND SIX HUNDRED DOLLARS AND NO CENTS ($2,600.00) upon execution of this Agreement. ii. FOUR THOUSAND DOLLARS AND NO CENTS($4,000.00)within thirty(30)calendar days after Artist makes a presentation(s) of his original Proposal to the FWAC and the Stakeholder group for review and input. iii. EIGHT THOUSAND,SIX HUNDRED DOLLARS AND NO CENTS($8,600.00)within thirty (30) calendar days after Artist submits all of the Preliminary Design Deliverables Agreement Between the City of Fort Worth and Page 5 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 required under Article 2.3 of this Agreement and makes a presentation(s) of the Preliminary Design to the FWAC for approval. iv. TWO THOUSAND, TWO HUNDRED EIGHTY DOLLARS AND NO CENTS ($2,280.00)within thirty(30)calendar days after City's approval of the Preliminary Design. 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 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. Agreement Between the City of Fort Worth and Page 6 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 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 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 for services actually rendered up to the effective date of termination or require the Artist to remit to City a sum equal to all payments(if any)made to the Artist pursuant to this Agreement prior to the effective date of termination. If City chooses to pay Artist for services actually rendered,then all work product produced by Artist under this Agreement,including,but not limited to,finished and unfinished drawings, sketches, photographs, models, 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 2.4,then City shall pay Artist for work performed per the payment schedule in Article 3 up through the date of termination. City shall have the right to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs,up to the effective date of termination. 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 Preliminary 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 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 Agreement Between the City of Fort Worth and Page 7 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 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 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/or Work. By execution of this Agreement, Artist grants to the City an exclusive, perpetual, royalty free, and irrevocable license to graphically depict or publicly display the Artwork Design and/or Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Design and/or Work intended to promote or benefit City, its public services or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non-commercial purpose. 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 Agreement Between the City of Fort Worth and Page 8 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 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/or 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/or Work and accompanying materials for any municipal purpose. All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form:"©date,Artist's name." d. Nothing in this Agreement shall prevent the Artist from using images of the Artwork Design and/or 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: i. Artwork Design and/or Work shall be the original product of the Artist's sole creative efforts. ii. 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; iii. 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; iv. Artwork Design and/or Work(or duplicate thereof)have not been accepted for sale elsewhere; V. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and vi. All services performed hereunder shall be performed in accordance with all applicable laws, regulations,ordinances,etc.,and with all necessary care,skill and diligence. Agreement Between the City of Fort Worth and Page 9 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 S ' ARTICLE 8 ARTIST AS INDEPENDENT CONTRACTOR Artist shall perform al l 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 AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS,LAWSUITS,JUDGMENTS,ACTIONS,CAUSES OF ACTION,LIENS, LOSSES,EXPENSES,COSTS,FEES(INCLUDING,BUT NOT LIMITED TO,ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJURY(INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS,OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM ANY 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. Agreement Between the City of Fort Worth and Page 10 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 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 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. Agreement Between the City of Fort Worth and Page 11 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 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 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 4 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 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. Agreement Between the City of Fort Worth and Page 12 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 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. 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 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 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),Articles 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 Page 13 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 5 11.1.6. CowAtMatjs and Elector is S�s. 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 Texs Street,Third Floor Fat Worth,Texas 76102 Copies to: Sarah Fullenwider,City Attomey Office of the City Attorney City of Fort Worth 200 Texas Street,Third Floor Fort Worth,Texas 76102 Martha Peters,Vice President, Public Art Arts Council of Fort Worth&Tarrant County 1300 Gandy Street Fort Worth,Texas 76107 2. ARTIST Christopher Fennell Christopher Fennell LLC 5104 Clairmont Avenue S Birmingham,AL 35222 IN WITNESS HEREOF,the Parties hereto have executed this Agreement to be effective as of the Effective bate. CITY OF FORT WORTH ARTIST by: F do Costa 6tristopher Fennell,Member Assistant City Manager Christopher Fennell LLC AVMaM Boum the city OfFort W"and PW 14 or 25 Chri�FCMU LLC nor Preliarnary Daiwa or Public Artwork Exoicupoa Copy 7112/17 Date: � � Date: 3 ?� Contract Compliance Manager By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all perfo mance and reporting requirements. ame: Alida Labbe Title: Public Art Project Manager APPROVED AS O FORM AND LEGALI 7 — —.Tt7 ) ) — — Jessica Sa:ngsv Assistant City orney II Form 1295:Not required ATW-�_'� O Mhy J. y City Secr it Contract Authorization: AS M&C—No M&C Required OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Agreement Between the City of Fort Worth and Page 15 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7112117 Exhibit A: Proposal Chn;topher Fennell -..•f._.._ 9uh�SMnnaa.dp 30L2Ta.f277 wnr MnH.�a*.. Spring Rabbit Weather Vane h Ilk This weather vane in the shape of a rabbit is made using automotive leaf springs and coil spnngL The photoabove shows the rabbit moongand changing posbom.The rabbits sorts facing East and turns to show the sculpanreY ovnalt 15'depth and then completing its loodcgme turn to face Nest into the wind. t" Baseball Bat Rooster Weather Vane ,F13 I + i l I This bird is made out of steel birdhouses.For maintenance purposes,the bird houses will be cut and double-fared so that they are solid.The weather vane bases are 159ong and rise 13'above the ground. Agreement Between the City of Fort Worth and Page 16 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 Christopher Fennell :'A,'i'Y-" dreiQsMrolatY 202.22&1217 *wW.d ball n Bicycle Horse Weather Vane .µ. G Twelve dHferent weathervanes will be placed on North Beads StteetbetweenTimbertarod Boulevard and Shiver Rood,wkh ane on Kellet clicks Noxi This weather vane is Inspired by Christopherls Bicycle Tomato sculpture. Bird House Bird Weather Vane i A bird made of steel bir,*KKm%that for maintenance purposes,hate been cut and double faced so that thry hpero khteriorspece. AB of the bases ate 15 feet wide and 13 feet tad. Agreement Between the City of Fort Worth and Page 17 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 Christopher Fennell ^..l -,- .n ao22x tM �w d:m.rmp Chain Link Coyote Weather Vane V i i r r r. A coyote made out of chain link fences will run into the wind. Canoe Fish Weather Vane a '°&A Using canoes,like the ones found in Canoe wave,in Idaho,Christopher will construct a fish weather vane. The canoes will be cut and re-constructed to fit into the weather vane depth of 75 Agreement Between the City of Fort Worth and Page 18 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 Christopher Fennell Hub Cap Snake Weather Vane �e The hub cap on the weather vane's base points to the north.This snake is balanced on the lee side so the sculpture will turn into the wind. Lawn Mower Cow Weather Vane 1 u Cows are natural lawn mowers,so this cow sculpture is made out of used lawnmower blades arranged in a pattern like flowing grass.Christopher bulk a sculpture out of lawn mower blades in Farmington,Maine for The Universtly of Maine. Agreement Between the City of Fort Worth and Page 19 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 ��rll_r�.rn h�11,�u Railroad Track Longhorn Weather Vane 'FIs crcrorn is r:plrcd yy tral i--mcle.Tt c xilyturc:ra_Ic 5•_mad:au[St:.-,cl:ut—s:t 1pcct tc oat:II c I,cca aI•aedtes 1-I1cf$eIr_uldhcns:viI r-hid: +ng Juraule wterAs:nel:davinstWe-H-alher. R-Alin! l i Alin IIS vrr•1 I•r liyr•eu:I IIIM U14 L.ri« It-w A el I:1.rt+,M:1 11: r•1,1. I+or- F. Shovel Armadillo Weather Vane Te i �s� Xi This armadillo is made out of shovels and truck bumpers.Christopher worked with shovels when building `Tool Fire"sculpture in Nashville. Agreement Between the City of Fort Worth and Page 20 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 Christopher Fennell `,A, '+''< �.ers aeaxas t217 wwwUaM�oaM Street Light Moth Weather Vane This sculpture made of street lights is in the shape of a moth.The bulbs will be low watt LED lights.This sculpture will be located on the street where there Is existing power. Wing Eagle Weather Vane low , The sculpture is a weather vane that rotates into the wind.This eagle is made out of airplane wings cut in cross section.The eagle itself is 12'tall and 1.5'thick on top of the 13'tall post. Agreement Between the City of Fort Worth and Page 21 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 Exhibit B: Site cli , I k t iq 4 T*ft M606&.16 a.0, M—M Mwg... A16"MM Or Pdi or 333 este K.KV4. ir V.0 R,C 100, r ivi aoawwd N""Rd a-CoiT(W L-4 rGmro PO4ftAw Qft*.� ft"Iftc, Vb KO AlwM or K.Wor '0- -O-vo sv...eeevw G�ik &W-Id ft j"O, SRW Or Agreement Between the City of Fort Worth and Page 22 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 Exhibit C: Budget Form FORT WORTH PUBLIC ART PROJECT BUDGET Please complete this form and attach a signed receipt or estimate complete with per unit costs(no lump surns)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 S per day Mileage at S 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' (Revised May 2011) Agreement Between the City of Fort Worth and Page 23 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 Wow wo"4e da kel Deftse Dow Cod ku"aaw?:Px aaad Ino eas In Cost She Papa stion 12 Martha In Fukaa TRANSPORTATION Mawisk a Fabrbvfiw SW Rnbh.dwok to Installation 91*' Other Coo h massa?:P+oleOrid Ino aso in Cad Tautaporlstion 12 Montle in Fuaaa BASE-MOUNTING 8666 MmOV Devices amd C4opwomft F-vAdbWTaaihp odror Coat kvomsos?:ProJ Wd kw ease in CCM Mwstkia'Faatinq 12 Manch In RAaa INSTALLATION COSTS (Cads navel iwkWa alveanat for star hogs hnahR.br,,I appMabha.Please stl.ah. aonWksa 1st d aqulpmant and irdkb&m i sedrmsae wkh We lone) Sttaoontaaud tabor Egtpaw s Raar1 misted b InabdialloW CH-duty Pohleai"BnpW Troth, Stomps Faofr R~ city Psmlb D*w Dsvt" FkaC+w~ ftaRadoodb l' Otte Coo ke mossm7:Projra ad Incessas In Cost tmfars[ion 12 Martha I i A"s LIGHTING DaaiaeW. flatrst' hlttDs• Stec Plspsesdad' k slkm~ Cast Irrwsaas?:Ps*ded Inaamse in Cad Uafti g 12 Math In Fwkn GRAND TOTAL(moRX"p 0WW Cost ItdNak.I trip Plates tnaft trey roK4,800ty nous hew: Propmed By: Dar Agreement Between the City of Fort Worth and Page 24 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17 Exhibit D: Sales Tax Exemption ;�o,aaafe.at 'IC tn«earl TEXAS SALES AND USE TAX EXEMPTION CERTIFICATION Name at pwdmw,&m or agency City of Fort Worth,Texas Addtaas(wase d aanbw..P.O.Sox or Route namberl Phase(Area code and number) 200 Texas Street 817.3928360 cny,stew,zw c«a Fort Worth,Texas 76102 1,the purchaser named above,claim an exemption from payment of sales and use taxes(for the purchase of taxable items described below or on the attached order or invoice)from: Seiler: AN YNtdom Street address: City,State,7JP 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 1 understand that I will be liable for payment of all state and local sales or use taxes whlch may become due for failure to comply with the pmvislons of the Tax Code and/or all app[icabie law. IundarstandOml it is a crknbtal offense to gfve an exampbon aerftwe to0w seNerfortaxabfe!terns NWI kww,at Ute time ofprchase, wB be tkwd in a mam eroftrthan that expresWin NYs oerNFcate,anddependIng on the amount of tax evaded,the offense may range from a Class C misdemeanor to a Ml ony o(ft second degree. Purchaser hdre� 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 VAUD. Sales and Use Tax'Exemption Numbers"orTax Exempt"Numbers do not exist. This certificate should be furnished to the supplier.Do not send the completed certificate to the Comptroller of Public Acimurts. Agreement Between the City of Fort Worth and Page 25 of 25 Christopher Fennell LLC for Preliminary Design of Public Artwork Execution Copy 7/12/17