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HomeMy WebLinkAboutContract 51454y��' AGREEMENT BETWEEN THE CITY OF FORT WORTH "4;,"AND JON BARLOW HUDSON FOR CONCEPTUAL DESIGN PROPOSAL FOR PUBLIC ART FOR LAKE COMO PARK This Agreement is entered into this17 day of October , 2018, by and between the City of Fort Worth, a home -rule municipal corporation of the State of Texas, acting by and through Jesus J. Chapa, its duly authorized Assistant City Manager, and Jon Barlow Hudson, an individual located at P.O. Box 710, 325 N. Walnut Street, Yellow Springs, Ohio 45387. The City has designated the Arts Council of Fort Worth and Tarrant County, Inc., to manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art project manager. WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of artists into the development of the City's capital infrastructure improvements, and to promote tourism and economic vitality in the City through the artistic design of public spaces; WHEREAS, the Lake Como Park public art master plan by Anitra Blayton and Mel Zeigler titled, Commemoration Park: A Life Force /Soul, Spirit, Mind, and Heart, seeks to improve park infrastructure while creating commemorative art projects of all artistic mediums to acknowledge the Lake Como Planning Committee's designated "Pioneers, Legends and Heroes," was approved by the Fort Worth Art Commission ("FWAC") on February 12, 2018; WHEREAS, funding for this project has been allocated from the 2004 Bond Program, Proposition 1, adopted by the Fort Worth City Council on May 17, 2005 (M&C G-14801), and from the Specially Funded Capital Projects Fund (Public Art Fund), and the project was included in the Fort Worth Public Art Fiscal Year 2018 Annual Work Plan, adopted by the Fort Worth City Council on October 17, 2017 (M&C G-19139); WHEREAS, the Lake Como Park Public Art Project Core Team met on April 9, 2018, and reached consensus on commemorating Lake Como Park founder, journalist and publisher, W. H. Wilburn, Sr., and the donor of the park land, Amon G. Carter, Sr., with an interactive sculpture near the park entrance, which was included in the Project Outline approved by the FWAC on May 14, 2018; WHEREAS, the FWAC is overseeing an Artist Selection Process in accordance with the Project Outline and the guidelines in the Fort Worth Public Art Master Plan Update; WHEREAS, the Project Manager, facilitated the Artist Selection Panel, which reviewed the qualifications of artists from the Fort Worth Public Art Pre -Qu "r&su mg in th recommendation of three artists as finalists for the Project; OFFICIAL RECORD CIT-fSECRETARY FT 31ASORTHy TX Agreement between the City of Fort Worth and Page 1 of 17 Jon Barlow Hudson for a Conceptual Design Proposal for Public Art for Lake Como Park Execution Copy 10/16/2018 WHEREAS, Artist has been selected as a finalist for the Project and is being asked to develop a conceptual proposal and submit that proposal for review and consideration by the Artist Selection Panel; WHEREAS, the City intends to select one proposal for the Project based on the submissions by the individual artists with no guarantee that any particular artist or proposal will be selected to proceed to the next phase of the Project; and WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be designed to promote the integrity of Artist's ideas and statements as represented by the Work; NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement, the following terms shall have the meanings as set forth below: 1.1. Agreement — Means and includes this Agreement between the City and Artist for a Conceptual Design Proposal of public art for the Site. 1.2. Artist— Means and includes Jon Barlow Hudson, and any officers, directors, or employees. 1.3. Artist Selection Panel — Means and includes the appointed voting panel comprised of arts professionals, an elected representative(s) of the Project Core Team, a FWAC representative, with the City Council Member, City staff representatives, and other members of the Project Core Team as non-voting advisors. 1.4. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant County, Inc., and its officers, directors, or employees. 1.5. City — Means and includes the City of Fort Worth, Texas and its officers, representatives, agents, servants, and employees. 1.6. Effective Date — Means and includes the date represented in the first paragraph of this Agreement, which shall be the official date of execution of this Agreement. 1.7. Parties — Means and includes City and Artist. 1.8. Conceptual Design Proposal — Means all preliminary drawings, sketches, narrative descriptions, budget estimates, and the like that are created by Artist in connection with this Agreement between Artist and City for the Work. 1.9. Conceptual Design Proposal Deliverables — Means and includes those items set forth in Article 2.4 of this Agreement that Artist is required to submit to City for its review and approval. 1.10. Project— Means and includes the capital improvement or public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement. Agreement between the City of Fort Worth and Page 2 of 17 Jon Barlow Hudson for a Conceptual Design Proposal for Public Art for Lake Como Park Execution Copy 10/16/2018 1.11. Project Core Team — Means and includes the group of community members, generally 5-7 people, who are invited by the City Council Member to provide input on the project for its duration, in accordance with the Fort Worth Master Plan Update, page 23. 1.12. Project Stakeholders — Means and includes the appropriate City Council Member(s), the Project Core Team, the Artist Selection Panel, the FWAC's appointed representative, City staff, and others as may be appropriate. 1.13. Site — Means Lake Como Park, to be located at 3401 Lake Como Drive in Council District 3, specifically focusing on the main entrance of the park, which is further depicted in the attached Exhibit "A," which is incorporated into this Agreement. 1.14. Work — Means and includes the finished object(s) of art and design that are the subject of this Agreement, or any intermediary stage of completion of such work. ARTICLE 2 PURPOSE, SCOPE OF SERVICES, AND DELIVERABLES 2.1. Purpose. The purpose of this Agreement is to solicit a Conceptual Design Proposal from Artist for review by the Artist Selection Panel for this Project and ultimately select an artist to proceed to the next phase of this Project, which may include preliminary and final design development and commission of the Work. The City does not guarantee that Artist will be selected to proceed to the next phase of the Project and specifically reserves the right to reject all proposals or select one or more proposals. 2.2. Scope of Services. a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary for developing a Conceptual Design Proposal of the Work and for providing the Conceptual Design Proposal Deliverables. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist shall participate in an orientation meeting via conference call at a mutually agreed upon date and time. C. Artist shall prepare and present a Conceptual Design Proposal to the Artist Selection Panel in Fort Worth, Texas, at a mutually agreeable date and time. d. Artist shall participate in a Site visit at Lake Como Park prior to the proposal presentation at a date and time mutually agreed upon. e. Artist shall allow video recording and photography of his/her Conceptual Design Proposal presentation to the Artist Selection Panel. Agreement between the City of Fort Worth and Page 3 of 17 Jon Barlow Hudson for a Conceptual Design Proposal for Public Art for Lake Como Park Execution Copy 10/16/2018 f. Four (4) weeks prior to final submittals Artist shall individually meet, via conference call, with the Project Manager for the purpose of a design progress report to receive feedback on their initial concepts and have the opportunity to ask questions. g. Artist shall make one (1) trip to Fort Worth, Texas for meetings and presentations as indicated above. Additional trips, if required per this Article, may be negotiated and agreed upon in writing by City and Artist. 2.3. City Assistance. Upon request by Artist, City shall promptly furnish all information and materials required by Artist to the extent that such materials are available. City, upon request by Artist, shall also provide correct scaled drawings of the Site, if available. 2.4. Conceptual Design Proposal Deliverables. a. Within (8) eight weeks of execution of this Agreement Artist shall provide services and all supplies, materials, and equipment necessary to provide the Conceptual Design Proposal Deliverables, as set forth in this subsection to City for consideration. b. Conceptual Design Proposal Deliverables shall consist of the following: A written narrative description of the Artist's concept, proposed materials, fabrication and installation methods, timeline for completion and maintenance requirements; ii. Two-dimensional rendering(s) of the Artist's concept, supplied as both high and low resolution digital files; and no more than five (5) examples of relevant projects by the Artist, presented within a PowerPoint presentation; iii. Installation diagram showing the concept's relationship to the Site, including approximate weight of the Work, proposed attachment method(s), and location(s) for lighting, if any; iv. A preliminary budget estimate, on the budget form attached hereto as Exhibit `B," which is incorporated into this Agreement, for final design and implementation of the Work in an amount not to exceed $203,150.00 which includes which includes all costs for engineering fees, materials, labor, fabrication, delivery, installation, construction, insurance, transportation, travel, 15% Artist's fee, and all other associated costs for the Work. The preliminary budget estimate may not factor in costs for Artist overhead or it equipment that is necessary to deliver the Work, including, but not limited to costs for internet, phone, computers, and other related charges. The budget estimate should also include material or fabrication samples and/or prototype models for the Work that show the size and placement of the Work in relation to the Site, as appropriate; Agreement between the City of Fort Worth and Page 4 of 17 Jon Barlow Hudson for a Conceptual Design Proposal for Public Art for Lake Como Park Execution Copy 10/16/2018 V. Material sample(s) to be used in the proposed Work, demonstrating durability, texture, color, etc., as appropriate. No models or prototypes shall be presented to the Artist Selection Panel; and vi. Artist shall provide the Conceptual Design Proposal presentation materials in PowerPoint format to the Contract Manager to become part of the City Public Art archive owned by City. All documents and drawings will be retained for archival and exhibition purposes. C. Artist shall submit an electronic version of his/her initial concept sketches for the Conceptual Design Proposal for the purpose of a design progress report as described in 2.2.f. These sketches shall be submitted to Contract Manager no later than 12:00 Noon (Central Time), at least two (2) days in advance of the progress report date. d. Artist shall submit a final electronic version of the Conceptual Design Proposal Deliverables to Contract Manager no later than 12:00 Noon (Central Time), at least two (2) days in advance of the presentation date to the Artist Selection Panel. e. The initial concept sketches and the Conceptual Design Proposal Deliverables shall be sent in one of the following manners: i. Via email to mrichardson(a)artscouncilfw.org (9 MB size limit per each email); ii. Via an FTP site, such as dropbox.com; or iii. Mailed or hand delivered on a USB to Fort Worth Public Art, Attention: Michelle Richardson, 1300 Gendy Street, Fort Worth, TX 76107. 2.5. Notification of Selection. a. The Contract Manager shall notify the Artist, by phone and in writing, of the final outcome of the artist selection process, i.e., whether or not the Artist was selected to proceed to the next phase of the Project, within fifteen (15) days of the FWAC's approval of the Project artist. 2.6. Alternate Artist. a. Any artist not selected to proceed to the next phase of the Project may be designated as an alternate for a period of one (1) year from the date the City sends final payment to Artist under this Agreement. The Artist shall not receive any additional compensation for such designation; however, such designation does affect ownership rights to the Artist's Conceptual Design Proposal, which is set forth in more detail in Article 5. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Total compensation to Artist under the Agreement shall not exceed ONE THOUSAND, SIX HUNDRED DOLLARS AND NO CENTS ($1,600.00), which shall constitute full compensation for any and all costs Agreement between the City of Fort Worth and Page 5 of 17 Jon Barlow Hudson for a Conceptual Design Proposal for Public Art for Lake Como Park Execution Copy 10/16/2018 associated with the Agreement, including, but not limited to, a proposal fee, travel, 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: SEVEN HUNDRED FIFTY DOLLARS AND NO CENTS ($750.00) within thirty (30) calendar days after Artist submits all of the Conceptual Design Proposal Deliverables required under Article 2.4 of this Agreement, travels to Fort Worth, and makes a presentation of the Conceptual Design Proposal to the Artist Selection Panel. ii. EIGHT HUNDRED FIFTY DOLLARS AND NO CENTS ($850.00) within thirty (30) calendar days after Artist is notified as to the final outcome of the artist selection process (i.e., whether or not the Artist was selected to proceed to the next phase of the Project after FWAC's selection of the Project artist). 3.3. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Project. City shall supply Artist with the "Texas Certificate of Exemption," in substantially the same form as that attached hereto as Exhibit "C," which is incorporated into this Agreement, 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. Agreement between the City of Fort Worth and Page 6 of 17 Jon Barlow Hudson for a Conceptual Design Proposal for Public Art for Lake Como Park Execution Copy 10/16/2018 4.3. Termination for Cause. The City may terminate this Agreement for cause in the event Artist fails to perform in accordance with the requirements contained herein. In such event, City shall give Artist written notice of Artist's failure to perform, giving Artist seven (7) calendar days to come into compliance with the Agreement. If Artist fails to come into compliance with this Agreement, City shall notify Artist in writing, and this Agreement shall be terminated as of the date of such notification. In such event, Artist shall not be entitled to any additional compensation. 4.4. Termination for Convenience. a. The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted thirty (30) calendar days before termination. b. If the termination is for the convenience of City, City shall pay Artist for services actually rendered up to the effective date of termination in accordance with the payment schedule in section 3.1 above. 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 in accordance with the payment schedule in section 3.1 above or require the Artist to remit to City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to the effective date of termination. ARTICLE 5 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 5.1. Non -Selected Artists. a. If Artist is not selected to proceed to the next phase of the Project as the Project artist, then, upon payment to the Artist in accordance with the payment schedule in section 3.1 above, the Conceptual Design Proposal and all other work product under this Agreement shall become the property of City for a period of one (1) year from the date the City sends final payment to Artist under this Agreement. Artist shall retain copyright and other intellectual property rights in and to the Conceptual Design Proposal. b. In view of the intention that the Conceptual Design Proposal be unique, Artist shall not make any additional exact duplicate reproductions of the Conceptual Design Proposal, nor shall Artist grant permission to others to do so except with the express written permission of City. City is not responsible for any third -party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. d. If, within the above -stated one-year period, the City decides to select the Artist to proceed to the next phase of the Project as the Project artist and Artist agrees to such selection, then the rights set forth in Article 5.2 for the selected artist shall supersede and govern any ownership and intellectual property rights associated with or related to this Agreement. Agreement between the City of Fort Worth and Page 7 of 17 Jon Barlow Hudson for a Conceptual Design Proposal for Public Art for Lake Como Park Execution Copy 10/16/2018 5.2. Selected Artist. a. If Artist is selected to proceed to the next phase of the Project as the Project artist, then the ownership and intellectual property rights set forth in this subsection shall apply. b. Upon payment to Artist in accordance with the payment schedule in section 3.1 above, the Conceptual Design Proposal and all other work product under this Agreement shall become the property of City, without restriction on future use, except as provided below. Artist shall retain copyright and other intellectual property rights in and to the Conceptual Design Proposal and/or Work. Artist grants to the City an exclusive, perpetual, irrevocable, and royalty free license to graphically depict or display the Conceptual Design Proposal and/or Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Conceptual Design Proposal and/or Work intended to promote or benefit City, its public services or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non-commercial purpose. C. In view of the intention that the Conceptual Design Proposal and the Work be unique, Artist shall not make any additional exact duplicate reproductions of the Conceptual Design Proposal or the Work, nor shall Artist grant permission to others to do so except with the express written permission of City. However, nothing herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic expression. d. Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Conceptual Design Proposal and/or Work, except as those rights are limited by this Agreement. If Artist is selected to proceed as the Project artist, City may make and disseminate photographs, drawings, and other two-dimensional reproductions of the Conceptual Design Proposal and/or Work and accompanying materials for any municipal purpose. All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: "© date, Artist's name." C. Nothing in this Agreement shall prevent the Artist from using images of the Conceptual Design Proposal and/or Work for marketing and promotional purposes in connection with the Artist's business. f. City is not responsible for any third -party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. ARTICLE 6 WARRANTIES OF TITLE AND COPYRIGHT a. Artist represents and warrants that: Agreement between the City of Fort Worth and Page 8 of 17 Jon Barlow Hudson for a Conceptual Design Proposal for Public Art for Lake Como Park Execution Copy 10/16/2018 i. Conceptual Design Proposal and the Work shall be the original product of the Artist's sole creative efforts; ii. Conceptual Design Proposal and the Work is and will be unique and original, and does not infringe upon any copyright or the rights of any person; iii. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Conceptual Design Proposal or the Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; iv. Conceptual Design Proposal or the Work (or duplicate thereof) have not been accepted for sale elsewhere; V. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and vi. All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill and diligence. ARTICLE 7 ARTIST AS 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 its officers, agents, employees, and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artist, its officers, agents, employees and subcontractors, and doctrine of respondent superior has no application as between City and Artist. ARTICLE 8 INDEMNIFICATION 8.1. GeneralIndemni1y. 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 Agreement between the City of Fort Worth and Page 9 of 17 Jon Barlow Hudson for a Conceptual Design Proposal for Public Art for Lake Como Park Execution Copy 10/16/2018 REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM THE ACTS, ERRORS, OR OMMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTISTS, CONTRACTORS AND SUBCONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. b. Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained or caused by Artist in connection with or incidental to performance under this Agreement. C. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. 8.2. Intellectual Property. Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artist. Agreement between the City of Fort Worth and Page 10 of 17 Jon Barlow Hudson for a Conceptual Design Proposal for Public Art for Lake Como Park Execution Copy 10/16/2018 ARTICLE 9 MISCELLANEOUS 9.1. Compliance. Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the performance of Artist's services under this Agreement. 9.2. Entire Agreement. This writing embodies the entire agreement and understanding between the Parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 9.3. Amendments. No alteration, change, modification, or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. 9.4. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants, and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 9.5. Governing Law and Venue. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 9.6. Successors and Assigns. Neither party hereto shall assign, sublet, or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease, or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and their respective successors and permitted assigns. 9.7. No Third -Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights, contractual, or otherwise, to any other person or entity. 9.8. Severability. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. Agreement between the City of Fort Worth and Page 11 of 17 Jon Barlow Hudson for a Conceptual Design Proposal for Public Art for Lake Como Park Execution Copy 10/16/2018 9.9. Force Majeure. It is expressly understood and agreed by the Parties to this Agreement that, if the performance of any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather; governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots; material or labor restrictions; transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. 9.10. 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. 9.11. Fiscal Funding Out. If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 9.12. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 9.13. Right to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Work (collectively "Records") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, the Artist shall make all Records available to the City at 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 above. Agreement between the City of Fort Worth and Page 12 of 17 Jon Barlow Hudson for a Conceptual Design Proposal for Public Art for Lake Como Park Execution Copy 10/16/2018 9.14. Certified MBE/WBE. If applicable, Artist is encouraged to make its best effort to become a certified Minority Business Enterprise (MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is accepted by the City under the City's Business Diversity Enterprise Ordinance. 9.15. Survival Provision. The provisions contained in Articles 5 (Ownership and Intellectual Property Rights), 6 (Warranties of Title and Copyright), 7 (Artist as an Independent Contractor), 8 (Indemnification), and 9.13 (Right to Audit) shall survive the termination or expiration of this Agreement. 9.16. Counterparts and Electronic Signatures. This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 9.17. Time Extensions. The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. 9.18. Israel. Artist acknowledges that in accordance with Chapter 2270 of the Texas Government Code, the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. If Artist is considered a "company," by signing this contract, Artist certifies that Artist's signature provides written verification to the City that Artist: (1) does not boycott Israel, and (2) will not boycott Israel during the term of the Agreement. ARTICLE 10 NOTICES All notices, requests, demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: CITY OF FORT WORTH: Jesus J. Chapa, 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 Page 13 of 17 Jon Barlow Hudson for a Conceptual Design Proposal for Public Art for Lake Como Park Execution Copy 10/16/2018 Copies to: Sarah Fullenwider, City Attorney Office of the City Attorney City of Fort Worth 200 Texas Street, Third Floor Fort Worth, Texas 76102 Martha Peters, Director of Public Art Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, Texas 76107 ARTIST Jon Barlow Hudson P.O. Box 710 325 N. Walnut Street Yellow Springs, Ohio 45387 IN WITNESS HEREOF, the Parties hereto have executed this Agreement as of the Effective Date. CITY OF FORT WORTH Jesus J. Chapa Assistant City Manager Contract Compliance Manager ARTIST CO Jon Barlow Hudson Artist By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Name: Michelle Richardson Title: Public Art Project Manager AS TO FORM AND Jessica SkAsvang Senior Assistant City Attorney ATTESTED BY: Mary J. Kayser City Secretary G CIT) O :O Form 1295: Not required �Gf11. RECCORD Contract Authorization: No M&C Required YP W0RfJJ, 6X Agreement between the City of Fort Worth and age 14 of 17 Jon Barlow Hudson for a Conceptual Design Proposal for Public Art for Lake Como Park Execution Copy 10/16/2018 0 0 FA*a Spee Sturm % EMwd Donation Center n Exhibit A: Site west - . . Mt r � ar�rtgton Haghts Huh Schip�; tA.61 hoe M" Leonard ComMuniq Chapel cer"I Ma*d l`l Fort Worth 7 . Plato's Closet L,, dL-n� A ME-Im gici a n i" ' � ISit Ary I C Lake Sansei lie �:F!ark' apartmerria . �i.ncAe lrr lftt Como First Missionary 's Baptist Church Agreement between the City of Fort Worth and Page 15 of 17 Jon Barlow Hudson for a Conceptual Design Proposal for Public Art for Lake Como Park Execution Copy 10/16/2018 FEES Artist fee Design (Preliminary / Final) Professional fees Engineer Architect Lighting Designer Conservator Other SUB -TOTAL FEES TRAVEL Transporation Lodging Per diem (meals and incidentals) SUB -TOTAL TRAVEL FABRICATION Artist administration (hours x $ per hour) Materials Artist labor (hours x $ per hour) Labor Rentals (equipment, space, etc) Storage SUB -TOTAL FABRICATION Exhibit B: Budget Form INSTALLATION Transportation Permits Site preparation/ remediation Footings/foundations Electrical connections/modifications Labor Equipment rental Traffic control Security SUB TOTAL INSTALLATION OVERHEAD insurance (prorated) Studio assistant (hours x $ per hour) SUB TOTAL OVERHEAD CONTINGENCY GRAND TOTAL ARTIST PROJECT COSTS Agreement between the City of Fort Worth and Page 16 of 17 Jon Barlow Hudson for a Conceptual Design Proposal for Public Art for Lake Como Park Execution Copy 10/16/2018 Exhibit C: Sales Tax Exemption ® W on Own) TEXAS SALES AND USE TAX EXEMPTION CERTIFICATION Nome of pumhoeer, flm, aagency City of Fort Worth, Texts _ Addow t&wet A dumber, P.O. box or Route number) Phase (Ares code and number) 200 Texas street817-392-8380 cip, sage, ZIPcode 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 Venule Sheet address: City, State, ZJP code: ]Description of Hems 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, Governments] 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 andlor all applicable law. 1 understand that itis a crknkW offense to give an exemption certificate to the seNerfortaxabfe Items that I know. at the lime o(purchase, wi/be used In a manneroffier then that expressed in Mis cer0care6 and depending on the amountoftax evaded, the offense may range from a CJaas C misdemeanor to a felony of the second degree. Pu�CholM Tisa ..— .............. Dahl sign here ` Finance Director/CF0 January 3, 2017 NOTE: This certificate cannot be issued for the purchase, lease, or rental of a motor vehicle. THIS QERTIFICATE DOES NOT REQUIRE 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 certMcate to the comptroller of Pubic Accounts. Agreement between the City of Fort Worth and Page 17 of 17 Jon Barlow Hudson for a Conceptual Design Proposal for Public Art for Lake Como Park Execution Copy 10/16/2018