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Contract 52588
CITY SECRETARY G i�RACT N®.sQ M AGREEMENT BETWEEN THE CITY OF FORT WORTH AND ETTY ISH-HOROWITZ AND KEVIN SLOAN FOR C0 G FINAL DESIGN OF PUBLIC ART AND LANDSCAPING FOR STATE HIGHWAY 121 This Agreement is entered into thisU day of , 2019, by and between the City of Fort Worth, a home-rule municipal corporation of the State of Texas, acting by and through Dana Burghdoff, its duly authorized Interim Assistant City Manager, and Etty Ish-Horowitz, an individual, of 4318 Gilbert Avenue, Dallas,TX, 75219,and Kevin Sloan,an individual,of 1218 W. Davis St, Dallas,TX 75208. City has designated the Arts Council of Fort Worth and Tarrant County, Inc. (Contract Manager), 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, in 2004, City received the Texas Governor's Community Achievement Award(GCAA) from the Texas Department of Transportation(TxDOT), in the amount of$265,000.00 that may only be used for construction and installation of Public Art and Landscaping on a State of Texas right-of-way that fulfills the City's expectations and meets TxDOT's design, safety, maintenance and funding requirements; WHEREAS, the City has selected a State of Texas-owned and TxDOT-approved site within Fort Worth city limits for the Project; WHEREAS,at TxDOT's request,City has agreed to select a TxDOT-approved contractor and manage the construction of the Project; WHEREAS, the Artists were placed under a Revised Preliminary Design Contract (City Secretary Contract#50247) dated February 12, 2018; WHEREAS, the Artists have revised their original I-30 Gateway Monument design to fit the new SH121 site, utilizing all of the key elements, (with the exception of the concrete barriers which do not work with the topography, size or drainage requirements of the new site); included are brick pavers to be donated by Acme Brick, as a visual reference to the "Old Road to the West"; abundantly planted native Texas wildflowers and grasses, and large-scale Corten steel letters that line up and spell out"Fort Worth"which will be lit at night; the project will occupy an area measuring approximately 425 feet in length by 25 feet in width; DEED,AL RECORD Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan CITY SECRETARY for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 FT WORTH,TX 3 s WHEREAS, on January 14, 2019, the Fort Worth Art Commission("FWAC") approved the Revised Preliminary Design and recommended that Artists be placed under a Final Design contract,which shall include engineering, refining of the design and preparation of Construction Documents; WHEREAS, funding for the Final Design of the Project has been appropriated from the Specially Funded Capital Projects Fund, and the Project was included in the Fort Worth Public Art Fiscal Year 2019 Annual Work Plan, adopted by the Fort Worth City Council on November 6,2018 as M&C G-19412; and WHEREAS, City and Artists wish to set out the terms and conditions under which said Work shall be designed to promote the integrity of Artists' ideas and statements as represented by the Work; NOW, THEREFORE, City and Artists for and in consideration of the covenants and agreements hereinafter set forth,the sufficiency of which is hereby acknowledged, agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement,the following terms shall have the meanings as set forth below: I.I. Agreement— Means and includes this Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of public art for the Site. 1.2. Artists—Mean and include Etty Ish-Horowitz and Kevin Sloan. 1.3. Artists' Consultants—Mean and include Baird Hampton Brown Engineers and Kevin Sloan. Studio, LLC, and other consultants as needed. 1.4. Artwork—Means and includes the sculpture and landscaping and hardscaping components. 1.5. Artwork Design—Means and includes both the Revised Preliminary Design and Final Design of the Work and Construction Documents, which are defined in 1.5.a., 1.5.b. and 1.5.c. below. 1.5.a. Revised Preliminary Design—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, any prior agreement between Artists and City, and/or any agreement related to the Artwork or Work in which the City is a third-party beneficiary, including, but not limited to, the design concepts created in Artists' Revised Preliminary Design, attached hereto as Exhibit"A"and incorporated herein for all purposes. 1.5.b. Final Design—Means the Artists' final,proposed design of the Artwork for the Site, which is based upon the City-approved Revised Preliminary Design and includes, but is not limited to, all final drawings, sketches, prototypes, maquettes, models, and the like that may be created by Artists in connection with this Agreement, or the like that are related, directly or indirectly, to the Work and shall include specifications for fabrication and installation of the Work and the completion of Construction Documents. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 2 of 32 1.5.c. Construction Documents — Means the sets of stamped engineering, and landscape architect drawings and notes, based on the approved Revised Preliminary Design, that meet TxDOT and City requirements and contain all the information needed for the Project to be let and constructed. 1.6 Contract Manager—Means and includes the Arts Council of Fort Worth and Tarrant County, Inc.,and/or its officers,directors, and employees. 1.7. City—Means and includes the City of Fort Worth,Texas. 1.8. City Project Manager — Means and includes the designated TxDOT-certified Project Manager the City has assigned to let the Project for bid and oversee the construction contract with the City's TxDOT certified Contractor. 1.9. 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. 1.10. Final Design Deliverables—Means and includes those items set forth in Article 2.4 and 2.5 of this Agreement that are required for City's review and approval. 1.11. Parties—Means and includes City and Artists. 1.12. Project—Means and includes the capital improvement or public art development undertaking of City for which Artists' services are to be provided pursuant to this Agreement. 1.13. Project Stakeholders — Means and includes the appropriate City Council Member(s), the Artist Selection Panel, the FWAC's appointed representative, City staff, and others as may be appropriate. 1.14. Site — Means and includes the TxDOT-approved and State of Texas-owned property in the right-of-way median on the north side of State Highway 121,(west of Maxine Street and east of Beach Street), approved on February 14, 2017, by TxDOT's North Area Office; offering dramatic views of the downtown Fort Worth skyline, which is more particularly described in Exhibit "B," attached hereto and incorporated herein by reference for all purposes. 1.15. Work — Means and includes the Revised Preliminary Design and Final Design for the Artwork, inclusive of the completed Construction Documents 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. Artists Selection. City and Artists acknowledge that Artists' Revised Preliminary Design was reviewed and approved by the FWAC on January 14, 2019, and is the basis for executing this Agreement with Artists. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 3 of 32 2.2. Scope of Services. a. Artists shall perform or subcontract for the performance of all services and will furnish all supplies, materials,and equipment that are specified in this Agreement as necessary in order to provide the Final Design, including Construction Documents, for the Project in accordance with TxDOT specifications and for developing a Final Design of the Work, which together shall constitute the Final Design Deliverables. Artists' services shall be performed in a professional manner consistent with the professional skill and care provided by the same kind and type of professional practicing in the same or similar locality under the same or similar circumstances and in strict compliance with all terms and conditions in this Agreement. Artists shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Project,nor shall the engineer be responsible for a contractor's failure to perform any work in accordance with the requirements of the Construction Documents.Artists shall not have control over or charge of, and shall not be responsible for,acts or omissions of contractors or of any other persons or entities performing portions of the work for the Project who have not contracted with Artists. b. Artists shall determine the artistic expression, scope, design, color, size, material, and texture of the Work,subject to review and input from Project Stakeholders and written approval by City and TxDOT, as set forth in this Agreement,provided that design is substantially the same as in the approved Revised Preliminary Design. C. The location at the Site where the Work shall be installed has been mutually agreed upon by City, TxDOT and Artists. d. Acme Brick Company has agreed to donate brick material, and Artists will advise Contract Manager and City of the impact the inclusion of Acme Brick has on the budget for implementation, so that Acme Brick may have the opportunity to provide funds towards implementation. e. Artists shall present the Artwork design to the community at meetings scheduled by Contract Manager at 60% for purpose of updating the community on the project. f. Artists shall present the Construction Documents to TxDOT, the Contract Manager and the City's Project Manager for review at 60% and 90% completion. g. Etty Ish-Horowitz shall subcontract with Baird Hampton and Brown of Artists' Consultants for the engineering and preparation of Construction Documents for the Project. f. The landscape architecture part of the Construction Documents shall be prepared by Kevin Sloan Studio, LLC, of Artists' Consultants as a subcontractor for Artists, for a fixed fee of$5,000.00. It is understood that this fee to Kevin Sloan Studio, LLC is in addition to Kevin Sloan's Artist Fee (the Artist Fee is to be paid to Etty Ish-Horowitz as outlined in Article 3.1 below). Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 4 of 32 g. Changes in any of the above subcontractors must be approved by Contract Manager in writing. h. Artists, upon written request of Contract Manager, shall provide information and/or attend meetings with appropriate City and TxDOT staff for purposes of risk assessment, safety review, sighting of the Work, and permitting. i. Upon written request of City,Artists shall provide written maintenance recommendations for the Work to the Contract Manager. J. Upon completion of final design, Artists shall present the Final Design to the Contract Manager at least two (2) weeks before any formal presentations may occur to the FWAC. k. Artists shall present the Final Design to TxDOT, the appropriate City staff, the community, 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. 1. Once the Project has been let and the bids received, Contract Manager will coordinate with Artists in the process of awarding the Project to a qualified TxDOT certified contractor. 2.4. Final Design Deliverables(Construction Documents). a. The Construction Documents shall include 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 and TxDOT to carry out a design review and approval and so City may let the Project for bidding to TxDOT certified contractors; however,the City acknowledges that, in order to construct the Work, the contractor(s) will provide additional information, including shop drawings,product data, samples and other similar submittals. Artists and their subcontractors should refer to the TxDOT Project Specifications&Engineering(PS&E)Manuals,the TxDOT Roadway Design Manual and the TxDOT Local Government Projects Toolkit, all of which are available on the TxDOT website; http://onlinemanuals.txdot.gov/txdotmanuals/pse/pse.pdf, http://onlinemanuals.txdot.gov/txdotmanuals/rdw/rdw.pdf and https://www.txdot.gov/government/processes-procedures/lgp-toolkit.htmias they prepare the Construction Documents. b. The Construction Documents for the Work shall be stamped by a licensed engineer registered with the State of Texas. C. The Construction Documents for the sculpture portion of the Artwork shall include: i. A survey of the Site showing existing topography and location of proposed improvements, which wilt also serve as an attachment to the City's Landscape Management and Municipal Maintenance Agreements with TxDOT; ii. An Artwork layout and dimensioned plan; Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7110119 5 of 32 iii. Detailed drawings of the steel letters that will spell "FORT WORTH," including their method of fabrication and attachment; iv. Detailed drawings of the spread beam footings that will support the steel letters, including the method of attachment of the letters; V. A lighting and electrical plan, including footings for the light fixtures; vi. A grading plan; vij. A geotechnical report; and vijj. A general notes section, describing details of what is covered in the plans. d. The Construction Documents for the landscape and hardscape portions of the Artwork shall include: i. A planting plan, to include seed and planting details, bed preparation and soil composition, and planting instructions including specific locations by type of plant or seed mixture,along with hand watering instructions for the specified establishment period; it. An Opinion of Probable Cost for the cost of installing the Acme Brick pavers; iii. A mow strip plan to include the Acme Brick element of the landscape; iv. A drainage plan provided by Civil Engineer; and, V. A general notes section, describing details of what is covered in the plans. e. The Construction Documents for the Artwork shall include a cover sheet and/or a link to a web site with information on the requirements submitted bids must meet, including any construction time limits,the Project budget and a description of how bidders propose accessing the Site and constructing the Project. f. The Construction Documents for the Artwork shall list the Acme Brick component as a separate line item and shall require contractors to address it as a separate cost item in their submitted bids. g. Professional Liability Insurance is required in all circumstances for Artwork requiring engineering and/or architectural services. Artists will provide the Contract Manager a certificate of insurance for each Artists' Engineering or Architectural Consultants and provide City with a 30-day notice of cancellation of any policy required hereunder. h. A detailed cost Opinion of Probable Cost for the entire Project should be provided to the Contract Manager with the 60%drawing submittal to TxDOT. j. The schedule for submittals of Construction Documents are as follows: i. Within twelve (12) weeks after the Effective Date, Artists shall submit 60% Construction Documents to Contract Manager, City's Project Manager and TxDOT for review and approval. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 6 of 32 ii. Within twelve (12) weeks after receiving comments from TxDOT on 60% Construction Documents, Artists shall submit 90% Construction Documents to Contract Manager, City's Project Manager and TxDOT for review and approval. iii. Extensions must be requested in writing of Contract Manager and approved by City and TxDOT. 2.5. Final Design Deliverables(General). After the City has let the Project and within one (1) month of opening bids, Artists shall provide or contract for the provision of services and all supplies,materials,and equipment as specified in this Agreement necessary to provide certain deliverables, as set forth in this Article 2.5 to City for approval. Final Design Deliverables shall consist of the following: a. Detailed, design illustrations of the Artwork for the Site, which shall be in a high resolution digital format, such as JPEG or TIF files, showing the proposed Artwork from two vantage points with at least one illustration showing the Artwork's size and placement in relation to the Site. b. A final 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 lighting design and specifications for fixtures and information regarding Artists' subcontractor(s), if any, for the Work; (3) maintenance requirements for all elements of the Work as dictated by Artists,along with cost estimates for annual maintenance;and(4)proposed public education program or activity to be conducted by Artists at a time mutually agreed upon by the Parties. Notwithstanding anything herein to the contrary, City acknowledges and agrees that any schedule for the provision of the Work is an estimate, which may be modified or adjusted due to review by consultants, review and approval of submissions by TxDOT, changes in the scope of the Project, and or delays by City and/or contractors or third parties over whom Artists have no control. Accordingly, Artists shall have no liability for any such delays, to the extent said delays do not arise in whole or in part from the acts or omissions of Artists. C. A detailed budget,on the budget form attached hereto as Exhibit"C,"for construction of the Artwork in the amount of TWO HUNDRED SIXTY FIVE THOUSAND DOLLARS AND NO CENTS ($265,000.00), which includes all costs for materials including landscaping, seed mixtures, hand watering during the establishment period, mow strips or equivalent, steel letters, required footings, grading, labor, fabrication, delivery, installation, easement procurement, insurance, transportation, barricades and traffic control,lighting and electrical,and all other associated costs for the Work. The detailed budget will be for implementation of the Artwork through a construction contract between a TxDOT-certified contractor and the City, and which said contract is subject to the approval of the Fort Worth City Council. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 7 of 32 d. It is understood that the Final Design must be implementable within the$265,000.00 budget awarded by the GCAA. e. It is understood that City Project Management and Inspection Fees are not the responsibility of the Artists and shall not be included in the Final Design budget in item 2.5.c. f. Artists shall propose a fee to be paid to the Artists under a separate Artists' consultation agreement for consultant services to be provided during the construction phase of the Project to be paid by the City. This fee shall NOT be included in the budget for implementation of the Final Design and is not guaranteed. g. Upon approval of the Final Design and budget, Artists shall provide the Final Design presentation materials to City and to the Contract Manager to become part of the City of Fort Worth Public Art archive owned by the City of Fort Worth. 2.6. Final Design Review. a. After bids have been opened and the project has been determined to be within budget, Artists shall present the Final Design to the FWAC for approval at a regularly scheduled FWAC meeting. b. City shall notify Artists of its approval, or disapproval,of the Final Design within thirty(30)business days of Artists'presentation to the FWAC under Article 2.6.a. C. If City disapproves of the Final Design, either in whole or in part, then City shall inform Artists of each revision to be made to the Final Design. City may require Artists to make such revisions to the Final Design as City deems necessary in its reasonable discretion and/or for the Artwork to comply with applicable statutes, ordinances, or regulations of any governmental regulatory agency having jurisdiction over the Site for reasons of safety and security. d. Artists shall have thirty (30) calendar days from the date City informed Artists of the revision(s) to present the revised Final Design in conformance with City's requirements. e. 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 for work performed per the payment schedule in Article 3 up through the date of termination. f. Upon City approval of the Final Design, any revisions made to a City-approved Final Design shall become part of the Final Design. Artists shall incorporate any City-approved revisions into the Final Design in conformance with City's requirements. Artists shall provide the Final Design presentation materials to the Contract Manager to become part of the City's Public Art archive. These documents, models, and/or drawings will be retained for archival and exhibition purposes. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 8 of 32 g. Upon the expiration of the Term(hereinafter defined)of this Agreement,if the Final Design is accepted by City, a Mayor and Council Communication will be prepared for the Fort Worth City Council that will authorize award of the Project to a TxDOT-certified Contractor and fabrication and construction of the Artwork shall commence. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Fixed Fee. Total compensation to Artists under the Agreement shall be an amount up to EIGHTY TWO THOUSAND SIX HUNDRED SIXTEEN DOLLARS AND EIGHTY-FOUR CENTS ($82,616.84), which includes an Artists' fee of up to TWENTY THREE THOUSAND, SEVEN HUNDRED-FIFTY DOLLARS AND NO CENTS ($23,750.00) inclusive of incidental costs and all travel expenses; an amount up to FORTY FIVE THOUSAND DOLLARS AND NO CENTS ($45,000.00) for structural and civil engineering, materials testing, geotechnical report, consulting fees and construction document preparation; and a contingency of THIRTEEN THOUSAND, EIGHT HUNDRED SIXTY SIX DOLLARS AND EIGHTY-FOUR CENTS ($13,866.84)in accordance with subsection(g)below,which shall constitute full compensation for all services and materials to be performed and furnished by the Artists under this Agreement. Artists and City may amend this Agreement to allow for additional payment if additional services are required. All parties agree that payments under this Agreement shall be made to Etty Ish-Horowitz, who shall be responsible for remitting to Kevin Sloan his percentage of the Artist Fee (50% of $23,750.00) and for all payments to Artists' subcontractors. City shall not be liable to Kevin Sloan or Artists' Consultants for any payments under this Agreement. The Artist Fee shall be paid to Etty Ish-Horowitz in the following installments, expressed as portions of the Artist Fee, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof. a. FIVE THOUSAND DOLLARS ($5,000.00)upon execution of this Agreement. . b. TEN THOUSAND DOLLARS ($10,000.00) within thirty (30) days after Artists submit the Construction Documents at 60%design to the City for review. C. THREE THOUSAND DOLLARS ($3,000.00) within thirty (30) days after Artists submit the Construction Documents at 90%design to the City for review. d. THREE THOUSAND DOLLARS ($3,000.00) within thirty (30) days after Artists present the Final Design and results of bids to FWAC for review. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 9 of 32 e. TWO THOUSAND SEVEN HUNDRED FIFTY DOLLARS AND NO CENTS ($2,750.00) within thirty(30)days after City notifies Artists of its approval of Final Design and other items required under Section 2.4. and Section 2.5. f. An allowance for engineering, consulting and construction document fees in an amount up to FORTY FIVE THOUSAND DOLLARS AND NO CENTS ($45,000.00) shall be paid to Artists for engineering and consulting fees,construction document fees,and a conservator's consultation in order to fulfill the terms of this Agreement. Such payment shall be made upon receipt of an invoice from Artists with the original invoice (a retainer fee of up to 50% is allowed) for each subcontractor for such services attached. Artist's Consultants shall also be paid by Artists from this allowance. g. City may pay Artists contingency funds in an amount up to THIRTEEN THOUSAND EIGHT HUNDRED SIXTY SIX DOLLARS AND EIGHTY-FOUR CENTS ($13,866.84), for costs associated with the Work that are incurred by the Artists due to unforeseen site conditions,changes in consulting, engineering or construction document costs. Such payment will be made upon(1)receipt of supporting documentation by the Contract Manager from the Artist and(ii)approval by the Contract Manager of the additional costs. Because Artists took a reduced fee during earlier design phases of the project,unused contingency funds up to an amount of$13,866.84 shall be paid to the Artists upon completion of the project and upon submittal of an invoice for same to Contract Manager. 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 Artists with the"Texas Certificate of Exemption,"in substantially the same form as that attached hereto as Exhibit"D"for use by Artists in the fulfillment of this Agreement. 3.4. Artists' Expenses. Artists 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 Artists' 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. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 10 of 32 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 Artists 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 Artists 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. Tennination 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 terns of this Agreement. 4.4. Tennination 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 Artists for work actually performed pursuant to the payment provision in Article 3, and Artists 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 Artists 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; however, any use of the Work and/or Artists' work product, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, shall be at the City's sole risk and the City releases Artists from any and all claims, including claims for negligence, losses and expenses (including reasonable and necessary attorneys' fees)arising out of such use. C. If termination is for the convenience of Artists, City shall have the right, in its sole discretion, Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 11 of 32 to pay Artists pursuant to the payment provision in Article 3 or require the Artists to remit to City a sum equal to all payments(if any)made to the Artists pursuant to this Agreement prior to the effective date of tennination. If City chooses to pay Artists, then all work product produced by Artists 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; however, any use of the Work and/or Artists' work product,including,but not limited to,finished and unfinished drawings, sketches, photographs, models, and designs, shall be at the City's sole risk and the City releases Artists from any and all claims, including claims for negligence, losses and expenses (including reasonable and necessary attorneys' fees)arising out of such use. d. If termination is by mutual agreement of the Parties as set forth in Article 2.5, then City shall pay Artists for work actually 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 Artists under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination; however, any use of the Work and/or Artists' work product, including, but not limited to, finished and unfinished drawings, sketches,photographs,models,and designs,shall be at the City's sole risk and the City releases Artists from any and all claims, including claims for negligence, losses and expenses (including reasonable and necessary attorneys' fees) arising out of such use. 4.5. Incapacity of Artists. a. In the event of Artists' deaths or Artists becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artists or Artists' successors for all work and services performed prior to death or incapacity. All work product produced by Artists, 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 Artists' 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 Artists' intended results and proper credit and acknowledgement shall be given to Artists. ARTICLE 5 DISPUTE RESOLUTION Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7110119 12 of 32 a. If either Artists or City has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement,the Parties shall first attempt to resolve these issues through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten(10)business days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings,or other reasonable means to resolve any claim, dispute, breach,or other matter in question that may arise out of or in connection with this Agreement. 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 Artists or pursuant to the applicable termination provision of this Agreement, the Artwork, 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. Artists shall retain copyright and other intellectual property rights in and to the Artwork Design and Work. By execution of this Agreement,Artists grant to the City an exclusive,perpetual,royalty free,and irrevocable license to graphically depict and publicly display the Artwork, Artwork Design, and Work for any non- commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork, Artwork Design, and Work intended to promote or benefit City, its public services or its Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 13 of 32 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, Artwork Design and the Work be unique, Artists shall not make any additional exact duplicate reproductions of the Artwork, Artwork Design or the Work, nor shall Artists grant permission to others to do so except with the express written permission of City. However, nothing herein shall prevent Artists from creating future artworks in Artists' manner and style of Artistic expression. C. Artists 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, Artwork Design and Work and accompanying materials for any municipal purpose. All reproductions by the City shall contain a credit to the Artists and a copyright notice substantially in the following form: "©date, Artists' name." d. Nothing in this Agreement shall prevent the Artists from using images of the Artwork, Artwork Design,and Work for marketing and promotional purposes in connection with the Artists' businesses. e. City is not responsible for any third-party infringement of Artists' copyright and not responsible for protecting the intellectual property rights of Artists. 6.2. Artists' Address. Artists shall notify City of changes in Artists' address as set forth in Article 12. The failure to do so, if such failure prevents City from locating Artists, shall be deemed a waiver by Artists of the right subsequently to enforce these provisions that require the express approval of Artists. Notwithstanding this provision,City shall make every reasonable effort to locate Artists when matters arise relating to Artists'rights. 6.3. Artists' Acknowledgement of Agreement with TxDOT. Artists acknowledge that City and TxDOT may enter into an agreement,whereby,TxDOT must have the right to alter or remove the installed Artwork located at the Site due to safety hazard concerns, in an emergency situation, or for other reasons deemed necessary. TxDOT may also alter or remove or require the City to alter or remove the installed artwork located at the Site due to construction or related TxDOT projects. Artists agree that such alteration or removal of the installed artwork from the Site is in no way a violation of Artists' intellectual property rights. ARTISTS HEREBY WAIVE ANY INTELLECTUAL PROPERTY CLAIMS THEY MAY HAVE WHEN ALTERATIONS OR REMOVAL OF THE INSTALLED ARTWORK OCCUR UNDER THIS SECTION 6.3. ARTISTS ALSO COVENANT AND AGREE TO AND DO HEREBY INDEMNIFY,HOLD HARMLESS,AND DEFEND AT THEIR OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS FOR DAMAGES UNDER THIS SECTION 6.3. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 14 of 32 ARTICLE 7 WARRANTIES OF TITLE AND COPYRIGHT a. Artists represent and warrant that: i. Artwork Design and Work shall be authored by the Artists' as a result of their sole creative efforts; 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; Ili. Artists have 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. Artists have 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 skill and care provided by the same kind and type of professional practicing in the same or similar locality under the same or similar circumstances. ARTICLE 8 ARTISTS AS INDEPENDENT CONTRACTOR Artists shall perform all work and services hereunder as an independent contractor,and not as an officer,agent, fiduciary,servant or employee of City.Artists 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, fiduciary relationship, or joint venture between City and Artists, his/her officers, agents, employees and subcontractors, and doctrine of respondent superior has no application as between City and Artists. ARTICLE 9 INDEMNIFICATION 9.I. General Indemnity. a. ARTISTS COVENANT AND AGREE TO AND DO HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT THEIR 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, Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 15 of 32 DAMAGES,LIABILITIES,AND/OR SUITS OF ANY KIND OR NATURE,INCLUDING,BUT NOT LIMITED TO,THOSE FOR PROPERTY LOSS(INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS,OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM THE ACTS, ERRORS, OR OMMISSIONS OF ARTISTS AND/OR ARTISTS' 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. Artists agree to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained or caused by Artists in connection with or incidental to Artists' perfonnance under this Agreement unless caused by the City the City's agents,the City's employees, or another entity over which the City exercises control. C. Artists shall require all of their 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. Artists agree 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 Artists. 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 Artists without the appropriate licenses or permission being secured by Artists in advance. IT IS FURTHER AGREED THAT ARTISTS 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 TO THE EXTENT 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 Artists. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 16 of 32 ARTICLE 10 EQUAL OPPORTUNITY a. Artist shall not discriminate against any employee or applicant for employment because of age, disability, race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity,or gender expression. Artist shall take affirmative action to ensure that employees are treated equally during employment, without regard to their age, disability, race, color, religion, sex, sexual orientation, national origin, familial status,transgender, gender identity, or gender expression. Such action shall include, but not be limited to, the following: Employment, upgrading, demotion, transfer,recruitment or pay or other forms of compensations, and selection for training, including,but not limited to, apprenticeship. Artist agrees to post in conspicuous places,available to employees and applications for employment, notices to be provided by the City setting forth the provision of this nondiscrimination clause. b. Artist shall in all solicitation or advertisements for employment placed on or on behalf of the Artist, state that all qualified applicants shall receive consideration for employment without regard to race, color,religion, sex, sexual orientation,national origin, familial status,transgender, gender identity,or gender expression. C. Artist shall furnish all information and reports requested by City, and shall permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with such rules and regulations. d. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated,or suspended in whole or in part,and Artist may be debarred from further agreements with the City. ARTICLE 11 MISCELLANEOUS 11.1. Compliance. Artists shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the performance of Artists'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. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 17 of 32 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 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 Artists 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 Artists, 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 Maleure. 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 perforni 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. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10119 18 of 32 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(1)thirty(30)days following delivery by City to Artists of written notice of City's intention to terminate or(ji)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. Artists agree that City will have the right to audit the financial and business records of Artists 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 Tenn of this Agreement and for three (3) years thereafter, the Artists shall make all Records available to the City at 200 Texas Strect, 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. Artists shall require all of their subcontractors to include in their subcontracts a right to audit in favor of City in substantially the same form as described in this Article l 1.13. 11.14. Certified MWBE. If applicable, Artist shall make its best effort to become a certified Minority Business Enterprise (MBE) or Woman Business Enterprise(WBE)firm with a certifying agency whose certification is accepted by City under the City's Business Diversity Enterprise Ordinance. 11.15. Survival Provision. The provisions contained in Articles 4.5(Incapacity of Artists),6(Ownership and Intellectual Property Rights), 7(Warranties of Title and Copyright),8(Artists as an Independent Contractor),9(Indemnification), and l 1.13 (Right to Audit)shall survive the termination or expiration of this Agreement. 11.16. Counterparts and Electronic Signatures. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 19 of 32 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. 14.19. Israel. If Artists are a company with ten (10) or more full-time employees and if this Agreement is for$100,000 or more, Artists 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 applicable under this Agreement and Artists are considered a"company,"by signing this Agreement,Artists certifies that Artists'signatures provide written verification to the City that Artists: (1) does not boycott Israel; and(2) will not boycott Israel during the term of the Agreement. ARTICLE 12 NOTICES All notices, requests, demands, and other communications which are required or pennitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested,postage prepaid, as follows: 1. CITY OF FORT WORTH: Assistant City Manager City Manager's Office City of Fort Worth,Fort Worth City Hall 200 Texas Street Fort Worth,TX 78 1 02-63 1 4 Copies to: City Attorney Office of the City Attorney City of Fort Worth,Fort Worth City Hall 200 Texas Street Fort Worth, TX 78102-6314 Martha Peters, Vice President of Public Art Arts Council of Fort Worth&Tarrant County 1300 Gendy Street Fort Worth, Texas 76107 2. ARTISTS Etty Ish-Horowitz OFFICIAL RECORD CITY SECRETARY Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan FT WORTH,TX for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 20 of 32 4318 Gilbert Avenue Dallas,TX, 75219 Kevin Sloan 1218 W Davis St Dallas,TX 75208 IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective as of the Effective Date. CITY OF FORT WORTH ARTISTS by:_ Dana Burghdoff Etty Ish-Horowitz Interim Assistant City Manager 1 Kevin Sloan CONTRACT COMPLIANCE MANAGER By signing, I acknowledge that 1 am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Name: Anne Allen Title: Public Art Project Manager APPROI 7ASTO FORM A LEGALITY: Jessica S tt9ity Senior Ass Attorney OFFICIAL RECORD Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan CITY SECRETARY for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 FT WOkW2TX ATTESTED BY: .3: Mary J. Ka r ...�tif City Secretary Contract Authorization: Form 1295: 2019 453448 and 2019 453939 M&C C-29074 Date: March 19, 2019 OFFICIAL REICOR CITY SECRETARY Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan F�„ for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 ¢2° 32 Exhibit A: THE SITE REGIONAL MAP The site is located along westbound State Highway 121, west of Maxine Street and east of Beach Street. ,�"�••.•�•� •••� `a'' ran pmtw golf CtYb < NoMt # R ttkF rld FWIs NoO Esst Mail 0 N +wa,..0 Hills m ,a Wdaond Hrra L a ,:t "mom City O $Y*.r.^7�•w�f1M1011� � � iI ttt ✓ hon"'A 7T 4 qL px.A� t '+�• DriorliF J tFert M1W1h10 nt_ , Jtb T1Y.M Fort Worth _ Rag pelt � � � + t Maeum Fen worth Fart t tuu.r lld rt "s € r i0imPater Hospitei Q cr..rrs a~tea uo FAIRMOUNT STOP HPOLY OVERSIGHT ASSN GO gk Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 23 of 32 SITE MAP The site is on the north right-of-way median of westbound SH 121 (west of Maxine Street and east of Beach Street) and just inside the Fort Worth City limits. It offers dramatic views of the downtown Fort Worth skyline. y -NB SM"I M,11N-E5 t � _ _ •ref 1 4�% �. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 24 of 32 Exhibit B: REVISED PRELIMINARY DESIGN Corten steel letters, 10 feet in height, line up to spell out "Fort Worth" with Acme Brick in-ground pavers refers to the "Old Road to the West", inter-planted with TxDOT native wildflower and grasses seed mixtures.The letters will be lit at night. [Note:Artists'Revised Preliminary Design rendering indicates a residential area north of the site in the background.] Am ItsvA f Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 25 of 32 Oblique view from above of a Corten steel letter"R"(10' in height)with concrete spread beam footing placed between bands of Acme Brick in-ground pavers. [Note:Artist's Preliminary Design rendering does not depict light fixtures that will illuminate the letters at night nor the native wildflowers and grasses that will be planted in between the brick pavers and letters.] Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 26 of 32 Example of TxDOT native grasses seed mixture: 'Van Non'Or*" D-JOV ACIww+l pwo-"V=to 1 . sP P a"dahel v nova*M gyro actned pro No nniip aid c"m bt bkk # aM r U gin b Sideoals¢aura toI r T NOh Pwerrlal bunc+ to OF Rona Awn Apt 1D 0e obw. .. dK*wd 9wen Aak pe dies b tan, N*%w by cLMV obw(l ied ied rua win modmaie Io bw Aloseosa Texas boKq b OF � 110 WK0 •,,MM q00 aihid*.a Aip veer dratrd+arxfy.e1o�r . -r AtkN*bhb ad AJ Y m rtgdera O to low haky 11a ►www"WWM WOOOM to .b 1'A!. -..rq d stue'urs tm nas r bow wa1 dn76nad KWKIV dry Part d+ade rnoderase ro worn 10 M •wlndrrMN -�' �p 6orn 1 b T - dry mosl stn nwdwah UINo bhNs/orn .*trpyF ►owvia bucnpa s i 7' - w%d- 15F dens C" dakwd Hare Owa Arms to nd calm k! tun moderate to low Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 27 of 32 Example of TxDOT wild flowers seed mixture: Texas bluebonnet, Erect to spreading,bushy annual with Cold to AOF Bluebonnet,Texas so"hairy stems and mid-green leaves. lulupine Buffalo in summer,deep d e-blue to blue-purple well drained.sandy Pi flowers are bome.Has a maAmum clover,WoM-flower height of talc and spread of 9". Lup nus L t full sun No Water- moderate Indian blanket "'!' Perenniol.Red or orange flower petals Cold to-20F �aillcirdia pUi wtth yellow tips,or yellow petal. Sail well drained I. I sun Water. moderate Missourl primrose Hardy perennial.Heavy blooms with -.old: to-IOF Oenothera mo lotge yellow four petaled flowers. arpa ¢ Usua v grows 8-10 in.high,with flowers well drained,dry blooming 3-4 in.wide. Light full sun W low PraMe verbena low growing perennial.Pope to mo- to 15F Verbin 3 -.a genta flowers clusters in summer. well drained ight sun Water low Purple honemint, Aromatic winter annual with unusual, to]OF beebahrt, tuf 4ke,lavender to pink,wharfed Lemon Lemon beebalhorsern , flower heads.Con grow up to 2'in moderately ferfse4 humus-rich. height. ^+�w.#_drohed y I full sun to dapped shade W moderate Pink evening prim- '? �, Low growing herbaceous perennial, to-10F rose �C {� + to 1-2'high.AMAtiple colas of flowers, r� spring though summer.Attracts bids, well drained bees,and butterflies. •C • su an Js paaia rwa.l W Jter. moderate 7 Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7110119 28 of 32 Exhibit C: Budget Form AIM • ARMST PROJECT COSTS FEES INSTALLATION Artist dw*n fee Trai Ion Profeawnd tern Permits Ergi>cer Site preparabon f rm*diation Architect Footing;/foundations LiS ting Darr Electrical connectlom/rnodiftations Conservator labor Other Eoprrwrt►arty Traffic control SUB-TOTAL FEES S*Mrty SUB-TOTAL WSTALLATION TRAVEL Transporabon OVERHEAD 1.04 11V Iresurr+ce(proretard) Par diem(m.rls and incidentals) Studio assistant(hours x$per hour) SUB-TOTAL TRAVEL SUB-TOTAL OVERHEAD FABRICATION Artist adrrnnlstradon(houn x$per how) CONTINGENCY l6tteriats Artist itbor(hours x S per hour) GRAND TOTAL ARTIST labor PROJECT COSTS Retals(e¢ulpmeu,space ear.) Stomp SUB-TOTAL FABRICATION Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7110119 29 of 32 e EXHIBIT D: INSURANCE REQUIREMENTS PUBLIC ART PROJECTS - INSURANCE REQUIREMENTS Artist shall meet all the following insurance requirements for this Project. If Artist subcontracts fabrication, transportation, and/or installation of the Work, then Artist shall also require his/her subcontractor(s) to abide by all of the following insurance requirements. Commercial General Liability(CGL) $1,000,000 Each occurrence $2,000,000 Aggregate limit Coverage shall include, but not be limited to, the following: premises, operations, independent contractors, products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an occurrence basis, and be as comprehensive as the current Insurance Services Office (ISO) policy. The policy shall name City as an additional insured. Bailee's/Property(if applicable) The inland marine policy shall provide per occurrence coverage at replacement cost value based on the latest appraised value of the Artwork, which is entrusted to the Artist and is considered to be in the Artist's care, custody, and control and shall include property"in transit." Automobile Liability $1,000,000 Each accident or $250,000 Bodily Injury per person $500,000 Bodily Injury per occurrence $100,000 Property Damage A commercial business policy shall provide coverage on "Any Auto," defined as autos owned, hired and non- owned. For Artist and/or Artist's Subcontractors who have employees: Workers' Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease-per each employee $500,000 Bodily Injury/Disease -policy limit Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas workers' Compensation Act(Art. 8308 1.01 et seq. Tex. Rev. Civ. Stat.). GENERAL POLICY REQUIREMENTS The certificate of insurance shall include an endorsement naming the City of Fort Worth, its' Officers, Employees and Volunteers as an "Additional Insured" on all liability policies. Exception: the additional insured requirement does not apply to Workers' Compensation or Automobile policies. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 30 of 32 Artist is responsible for providing the City a thirty day (30) notice of cancellation or non-renewal of any insurance policy and may not change the terms and conditions of any policy that would limit the scope or coverage,or otherwise alter or disallow coverage as required herein. The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. The insurers for all policies must be licensed/approved to do business in the State of Texas. If the subcontractor is an international entity and carries insurance through an international insurance company, then the subcontractor must obtain language on their certificate of insurance confirming that its insurance policy extends coverage to operations in the United States. All insurers must have a minimum rating of A- VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. Unless otherwise stated,all required insurance shall be written on an"occurrence basis." The deductible or self-insured retention(SIR) affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of City of Fort Worth in regards to asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups, must also approved by City's Risk Manager. City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to City of Fort Worth. City shall be required to provide prior notice of ninety days. City shall be entitled,upon request and without expense,to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. 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Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the SH 121 Public Art and Landscaping Project Execution Copy 7/10/19 32 of 32 M&C Review Pagel of 3 Official site of the City of Fort Worth,Texas CITY COUNCIL AGENDA FoRIr— TWORTH COUNCIL ACTION: Approved on 3/19/2019 REFERENCE 06STATE HIGHWAY 121 DATE: 3/19/2019 NO.: C-29074 LOG NAME: PUBLIC ART AND LANDSCAPING PROJECT CODE: C TYPE: NON- PUBLIC NO CONSENT HEARING: SUBJECT: Authorize Execution of a Final Design Agreement with Etty Horowitz and Kevin Sloan, in an Amount Up to $105,479.84, for Final Design and Contingencies for the State Highway 121 Public Art and Landscaping Project Located on Westbound State Highway 121 in the North Right-of-Way Median (West of Maxine Street and East of Beach Street) 76117 (COUNCIL DISTRICT 4) RECOMMENDATION: Authorize Execution of a Final Design Agreement with Etty Horowitz and Kevin Sloan, in an amount up to $105,479.84, for Final Design for the State Highway 121 Public Art and Landscaping Project, inclusive of engineering and construction documents, a City held contingency of$36,729.84, and remaining artists' fee, located on westbound State Highway 121 in the north right-of-way median (west of Maxine Street and east of Beach Street) 76117. DISCUSSION: Local artist/landscape architect team of Etty Horowitz and Kevin Sloan have revised their original 1-30 Gateway Monument design to fit the new State Highway 121 site, utilizing all of the key elements (with the exception of the concrete barriers which do not work with the size, topography and drainage requirements of the new site). Included are brick pavers to be donated by Acme Brick, which will serve as a visual reference to the "Old Road to the West;" abundantly planted native Texas wildflowers and grasses; and large-scale Corten steel letters that line up to spell out"Fort Worth". The project will occupy an area measuring approximately 425 feet in length by 25 feet in width. The new site on westbound State Highway 121 in the north right-of-way median (between west of Maxine Street and east of Beach Street) was approved on February 14, 2017, by the Texas Department of Transportation (TxDOT) North Area Office. It offers dramatic views of the downtown Fort Worth skyline and is located just inside the Fort Worth City Limits as drivers approach downtown from the northeast and Dallas/Fort Worth International Airport. The team was placed under a Revised Preliminary Design Agreement (City Secretary Contract No. 50247) dated February 12, 2018. On January 14, 2019, the Fort Worth Art Commission (FWAC) approved the Revised Preliminary Design and recommended the team be placed under a Final Design Agreement. Background: In October, 2016, TxDOT informed the City of Fort Worth that the site previously approved for the 1-30 Gateway Monument Public Art Project was no longer viable. TxDOT stated that a new site needed to be selected on a state highway not subject to federal review. This was due to: (1) the Federal Highway Safety Administration (FHWA) revoking their previously approved variance on size and their requirement that the project meet TxDOT's monument guidelines, which had been waived for this design; (2) TxDOT's future expansion of 1-30, while not currently funded, is now planned to occur within 5-10 years; and (3) the 1-30 corridor is now the preferred route for a future high speed rail line. http://apps.cfwnet.org/council_packet/mc_review.asp?ID=26818&councildate=3/19/2019 7/31/2019 M&C Review Page 2 of 3 Implementation and Next Steps: Under this Final Design Agreement, Etty Horowitz and Kevin Sloan will finalize the aesthetic design and provide civil and structural engineering and stamped construction documents. Upon approval of the Final Design and construction documents, the City will let the project for bidding by TxDOT - certified contractors. A future M&C will request authorization of a construction contract between the City and a TxDOT - certified contractor, to be paid for by Texas Governor's Community Achievement Award (GCAA) funds. Future Landscape Management and a Municipal Maintenance Agreements between the City and TxDOT, will allow the City to locate the project on TxDOT Right-of-Way, and the City will retain full ownership of and maintenance responsibilities for the public art and landscaping project. Funding for the Final Design of the project has been appropriated, and the Project was included in the Fort Worth Public Art Fiscal Year 2019 Annual Work Plan, adopted by the Fort Worth City Council on November 6, 2018, as M&C G-19412. FWAC Action: On January 14, 2019, the FWAC approved Etty Horowitz and Kevin Sloan's Revised Preliminary Design and recommended they be placed under a Final Design Agreement. PROJECT BUDGET F AMOUNT CONTRACT Preliminary Design (1-30 Site) F $15,000.00 CSC#43918 Final Design (1-30 Site) F $63,714.16 CSC#46947 Revised Preliminary Design (SH121 Site) F $21,000.00 CSC# 50247 Final Design and Contingency (SH121 Si F $105,479. 1 This M&C TOTAL1 $205,194.00 FUNDING SOURCES AMOUNT Specially Funded Capital Projects Budget (Public Art Fund) - Design $205,194.00 Texas Governor's Community Achievement Award - Construction $265,000.00 TOTAL $470,194.00 M/WBE Office - The City's overall M/WBE goal for the Fort Worth Public Art Program is 25 percent of total capital project dollars expended on public art annually. Council Member Cary Moon concurs with the FWAC's recommendation to proceed with Final Design for the State Highway 121 Public Art and Landscaping Project. The project serves the entire City. FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that funds in the amount of$105,479.84 are available in the Specially Funded Capital Projects Fund (Public Art), for the State Highway 121 Public Art and Landscaping Project. Prior to an expenditure being incurred, the participating department has the responsibility to validate the availability of funds. TO Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year (Chartfield 2) FROM Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year (Chartfield 2) http://apps.cfwnet.org/council_packet/mc_review.asp?ID=26818&councildate=3/19/2019 7/31/2019 M&C Review Page 3 of 3 Submitted for City Manager's Office by: Jay Chapa (6122) Originating Department Head: Randle Harwood (6101) Additional Information Contact: Martha Peters (8172983025) ATTACHMENTS Form 1295 Horowitz Feb 17 2019 (2) Redacted.pdf Form 1295 Sloan Feb 18 2019 Redacted.pdf SH121_MC_Attachments_Final Design.pdf http://apps.cfwnet.org/council_packet/mc_review.asp?ID=26818&councildate=3/19/2019 7/31/2019