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Contract 39962 (2)
L I I j 04�, AGREEMENT BETWEEN THE CITY OF FORT WORTH AND CORSON STUDIOS, L.L.C. FOR FINAL DESIGN OF PUBLIC ART FOR THE HEMPHILL-LAMAR CONNECTOR PROJECT This Agreement is entered into this day of 2010, by and between the CITY OF FORT WORTH, a home rule municipal corporation, of the State of Texas (the "City") acting by and through Fernando Costa, its duly authorized Assistant City Manager, and CORSON STUDIOS, L.L.C. (the "Artist"), of 5707 29th Avenue NE, Seattle, WA 98105, acting by and through Dan Corson, its duly authorized member. City has designated the ARTS COUNCIL OF FORT WORTH and TARRANT COUNTY, INC. (collectively referred to as the "Contract Managers") to manage this AGREEMENT on their behalf. The Contract Managers shall act through Martha Peters, the designated Public Art Director, WHEREAS, City is implementing the Fort Worth Public Art Program pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances (the "City Code"), in order to create an enhanced visual environment for Fort Worth residents, to commemorate City's rich cultural and ethnic diversity, to integrate the design work of artists into the development of City's capital infrastructure improvements, and to promote tourism and economic vitality in City through the artistic design of public spaces; and WHEREAS, City is designing and constructing the Hemphill -Lamar Connector as a four -lane arterial street from Vickery Boulevard to the intersection of Lancaster Avenue at Lamar Street, providing a direct link under I-30 and the Union Pacific Railroad right- of-way through an open tunnel between downtown and the Medical District/Near Southside in Fort Worth, TX (the "Site"), more particularly described in Exhibit "A" attached hereto; and WHEREAS, City has allocated funds from the 2004 Capital Improvements Program (Proposition 1) per the Long Range Public Art Plan for the 2004 CIP for public art associated with the Hemphill -Lamar Connector (the "Project")I and 1 OFFRC��sI_ RECORD CITY a�CR�TARY FT. WORTH, Tx WHEREAS, Artist was selected by City through a selection process conducted by the Contract Managers with oversight of the Fort Worth Art Commission ("FWAC") and in cooperation with City and City's Project Consultants (hereinafter defined) with input from City and community stakeholders for the Site to design, fabricate, and install a sculptural installation composed of multiple acrylic stylized longhorn/bird components with internal LED illuminations suspended from the underside of the Site's bridges and attached to the retaining walls (the "Work"), which is described in further detail in Artist's "Conceptual Design" attached hereto as Exhibit "B." WHEREAS, City and Artist acknowledge that the Conceptual Design, attached hereto as Exhibit "B," has been reviewed by City and City's Project Consultants, the Mayor's Committee, community stakeholders, and by the FWAC as the basis for executing this Agreement with Artist; WHEREAS, FWAC has recommended that Artist be retained to develop a Final Design based upon the Conceptual Design for public artwork to be incorporated into the Hemphill -Lamar Connector, WHEREAS, City and Artist wish to set out the terms and conditions for Artist's participation in the Project, including consultation with City's project consultant TranSystems and their subconsultants (collectively referred to as the "Project Consultant") and other entities affected by this project, including the Texas Department of Transportation (TxDOT) and Union Pacific Railroad. 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 SCOPE OF SERVICES AND DELIVERABLES 1.1 Scope of Services a. Artist shall perform all services and will furnish all supplies and materials as necessary for developing a Final Design for the Work at the Site ("Final Design"), as 2 set forth in Section 1.2 of this Agreement. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist shall determine the artistic expression, scope, design, color, size, material, alld texture of the Work, subject to review and acceptance by City as set forth in this Agreement. The location at the Site where the Work shall be installed shall be mutually agreed upon by City and Artist. c. Artist shall travel to Fort Worth to meet with Project Consultant, as well as officials of the Texas Department of Transportation (TxDOT) and Union Pacific Railroad, as may be necessary, to complete the Final Design d. Artist shall coordinate with the Project Consultant to ensure proper integration of the Work into the Site and into the construction documents, as may be necessary. e. Artist shall consult with a qualified fabricator/fabrication company familiar with the acrylic materials to be incorporated into the Work and obtain written aintenance recommendations for the Work from said indi mvidual or company to the Contract Manager. f. Artist shall present the Final Design to the Mayor's Steering Committee, community stakeholders, and City Officials for input. Artist shall also present the Final Design to the FWAC for review and approval at dates and times mutually agreed upon. 1.2 Final Design Deliverables a. Within two (2) months after the execution of this Agreement, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Section 1.2.a.i.—v. (collectively referred to as the "Final Design Deliverables") to City for approval. Final Design Deliverables shall consist of the following: i. Sketches, mockups, technical, and budget information, or any other information as may be reasonably requested by the Project Consultants in order to incorporate Artist's Conceptual Design into 3 drawings, renderings, models, etc., being prepared by the Project Consultants, as applicable. These deliverables shall be forwarded to the Project Consultants in a timely fashion; ii. Detailed, design illustrations of the Work for the Site; these illustrations shall be at least 20" x 30" and mounted on foam core and/or in a high resolution digital format, such as JPEG or TIF files, as well as a copy of the Final Design PowerPoint presentation; iii. Artist shall provide a final written narrative describing the following items: (1) Final Design concept and timeline for completion; (2) Proposed materials, fabrication, and installation methods; (3) Maintenance requirements for all elements of the Work as dictated by Artist along with cost estimates for annual maintenance; and (4) Proposed public education program(s) to be conducted by Artist during the commission phase of the artwork; and iv. Artist shall provide comprehensive working drawings, detailing the construction method(s) of the sculptural components and the means of installing the Work at the Site, together with other such graphic material as may be requested by City in order to permit City to carry out structural and electrical design review. These drawings must be signed and stamped by an engineer and/or architect licensed to work in the State of Texas as required by City. Artist will obtain and furnish to City certificates of professional liability insurance from each such licensed professional and will require City to be named as a "certificate holder" entitled to notice of cancellation/nonrenewal in accordance with standard practices. Artist shall not be liable for the use of the drawings submitted under Section 1.2.a.iv. for any use other than the Final Design. v. Artist shall provide a final budget for the Work with written estimates attached for supplies and services to be provided by Artist, by Artist's subcontractors) of $200,Ann (see Section 1.3). 4 b. Upon completion of the Final Design Deliverables, Artist shall meet with City officials and community stakeholders, as appropriate, to present the Final Design, at a date and time mutually agreed upon, for input. c. Artist shall present the Final Design to the FWAC for approval at a regularly scheduled meeting. d. Upon approval, Artist shall provide the Final Design presentation materials to the Contract Managers to become part of the City's Public Art archive. e. Upon request by Artist, the City, the Project Consultants, and/or project manager shall promptly furnish all information, materials, and assistance required by Artist in connection with said submission to the extent such materials are available. City, upon request, shall also provide correct scaled drawings of the Site, if available. 1.3 implementation Budget Total Artist shall develop a Final Design that is financially feasible relative to the budget for implementation. It is understood that the budget for implementation of the Final Design is estimated in the amount of ONE HUNDRED FIFTY-TWO THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($152,500.00), including materials, labor, fabrication, delivery, installation, insurance, transportation, Artist's supervision, Artist's fees, travel, and all associated costs for the Work. Artist shall provided a detailed budget, which, among other things, shall reflect a fixed Artist's fee and travel, on the budget form attached hereto as Exhibit "C." In addition, Artist may propose an alternate budget above the estimated budget herein for City's consideration in Lite event that additional funds become available for implementation of the Final Design. 1.4 Design Review a. City may require Artist to make such revisions to the Final Design as are necessary for the Work to comply with applicable statutes, ordinances, and/or regulations 5 of any governmental regulatory agency having jurisdiction over the Final Design Site for reasons of safety and security. b. City may also require Artist to make such revisions to the Final Design as City deems necessary in its sole discretion. c. Within thirty (30) days of its receipt of Artist's submission of the Final Design, City shall notify Artist of its approval, or disapproval, of such submission and of each revision made in the Final Design. Revisions made pursuant to this Section 1.4, upon approval by City, shall become part of the Final Design. d. If the Final Design or any required revision is disapproved by City, Artist shall have a reasonable amount of time to resubmit the Final Design in conformance with City's requirement. e. If resubmitted materials are not approved by City, this Agreement may be terminated at City's option, with payment for work performed per the payment schedule in Section 2.1. f. Upon the expiration of the Term (hereinafter defined in Section 3.1) of this Agreement, if the Final Design is accepted by City and funding is approved by City Council, negotiations for fabrication, delivery, and installation of the Work shall commence, which shall become part of the deliverables under the subsequent Artwork Commission Contract. ARTICLE 2 COMPENSATION AND PAYMENT SCHEDULE 2.1 Fee City shall pay Artist a fee of TWENTY-ONE THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($21,500.00), which includes a fixed Artist's fee inclusive of incidental costs and all travel expenses (the "Artist's Fee") and an amount of THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) for structural and electrical engineering fees (the "Engineering Fees"), which shall constitute full compensation for G all services and materials to be performed and furnished by Artist under this Agreement, including engineering and consulting fees as provided below. Artist's Fee shall be paid in the following installments, expressed as portions of Artist's Fee, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof. Artist's Fee shall be paid as follows: a. Eight Thousand Six Hundred Dollars and No Cents ($8,600.00) upon execution of this Agreement, recognizing that Artist has already invested time and expense in preliminary design team coordination with the Project Consultants and City. b. Eight Thousand Six Hundred Dollars and No Cents ($8,600) within thirty (30) days after Artist submits "Final Design Deliverables," as required in Section 1.2.a.i.-v of this Agreement and makes a presentation of the Final Design to the FWAC. c. Four Thousand Three Hundred Dollars and No Cents ($4,300� within thirty (30) days after City's approval of the Final Design. The above -referenced Three Thousand Dollars and No Cents ($3,000.00) allocated for Engineering and Consulting Fees shall be paid to Artist for structural and electrical engineering fees in order to fulfill the terms of this Agreement. Such payment shall be made upon receipt of an invoice from Artist with the original invoice (a retainer fee of up to 50% is allowed) for such services attached. 2.2 Sales Taxes City is atax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Work. City shall supply Artist with the "Texas Sales Tax and Local Sales Tax Exemption Certificate" in substantially the same form as that attached hereto as Exhibit "D." 7 2.3 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, 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 3 TERM AND TERMINATION 3.1 Term This Agreement shall be in effect from the date stated in the first paragraph of this Agreement, and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City, whichever is later. 3.2 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. 3.3 Termination for Cause If either party to this Agreement shall willfully or negligently fail to fulfill in a timely and proper manner, or otherwise violate, any of the covenants, agreements, or stipulations material to this Agreement, the other party shall thereupon have the right to terminate this Agreement by giving written notice to the defaulting party of the intent to terminate, ifi specying the grounds for termnation. The defaulting party shall have thirty (30) days after receipt of the notice to cure the default. If the default is not cured, then this Agreement shall terminate. Termination of this Agreement under this provision shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. 0 3.4 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) days before termination. The notice shall specify whether the termination is for convenience or cause. b. If the termination is for the convenience of City, Artist shall have the right to fees for work performed, in which event City shall have the right at its discretion to possession and transfer of title to the sketches, designs, and models already prepared and submitted or presented for submission to City by Artist under this Agreement prior to the date of termination, provided that no right to fabricate or execute the Artwork shall pass to City. c. If termination is for the convenience of Artist, Artist shall remit to City a sum equal to all payments (if any) made to Artist pursuant to this Agreement prior to termination. 3.5 Incapacity of Artist a. In the event of Artist's death or Artist becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to death or incapacity. All finished and unfinished drawings, sketches, photographs, models and work shall become property of City. b. Should Artist's design have been approved or if Artist's work has progressed to the point of fabrication of the Work, in the event of termination under this Section 3.5, City shall have the right to complete the Work. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. G� e ARTICLE 4 OWNERSHIP OF DESIGN AND REPRODUCTION RIGHTS 4.1 General. a. Upon payment in full to Artist, Artist's Final Design and all other work products under this Agreement shall become the property of City, without restriction on future use, if City accepts the Final Design and the Work is built, except as provided below. If City does not accept the Final Design, or, after acceptance, a commission contract is not entered into and fully performed, ownership of the Final Design shall revert to Artist. Except as provided below, Artist may retain copyright and other intellectual property rights in and to the Final Design. By execution of this Agreement, Artist grants to City a perpetual, irrevocable license to graphically depict or display the Final Design and the Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Final Design or the Work intended to promote or benefit City, its public services, or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non-commercial purpose. Notwithstanding the above limitation, Artist agrees and understands that nothing in this paragraph shall affect or limit City's absolute, unrestricted rights incidental to City's full ownership of the final artwork to alter, change, modify, destroy, remove, move, replace, operate, maintain, transport, sell, or transfer, in whole or in part, the final artwork when City deems it necessary within its discretion, in order to otherwise exercise City's powers and responsibility in regard to public works and improvements, in furtherance of City's operations or for any other reason. City agrees to credit Artist as the creator and copyright holder when it graphically depicts or displays the Work. b. City shall take title to all documents Al drawings, which constitute or are components of the Conceptual Design and the Final Design, upon final approval of the Final Design. These documents and/or drawings will be retained for archival and exhibition purposes. c. Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Conceptual Design and Final Design, except as those rights are limited by this Agreement. City may make and disseminate photographs, drawings, and other two-dimensional reproductions of the Conceptual Design and Final Design and accompanying materials for any municipal purpose. All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the following form: "© date, Artist's name." d. Nothing in this Agreement shall prevent Artist from using images of the Final Design or the Work for marketing and promotional purposes in connection with Artist's business, provided, however, that Artist shall make its best effort to credit City for commissioning the Work whenever possible. e. City is not responsible for any third -party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. 4.2 Artist's Address. Artist shall notify City of changes in Artist's address as set forth in Article 10. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights. ARTICLE 5 WARRANTY 5.1 Warranties of Title Artist represents and warrants that: a. The Work shall be the original product of Artist's sole creative efforts; b. The Work is and will be unique and original, and does not infringe upon any copyright or the rights of any person or entity; c. Artist has not sold, assigned, transferred, licensed, granted, encumbered, and/or utilized the Work or any element thereof or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; 11 d. The Work or duplicate thereof) has not been accepted for sale elsewhere; e. The Work is free and clear of any liens from any source whatsoever; f. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; g. All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill, and diligence; and h. Artist shall assume the defense of, and INEMNIFY AND HOLD HARMLESS, CITY, ITS OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS FROM AND AGAINST 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 WORK BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. ARTICLE 6 ARTIST AS INDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant, or employee of City. Artist shall have exclusive control of, and the exclusive right to control, the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of his/her officers, agents, employees, and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artist, his/her officers, agents, employees, and subcontractors, and the doctrine of respondeat superior has no application as between City and Artist. 12 ARTICLE 7 INDEMNIFICATION a. ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND, AT ITS OWN EXPENSE, CITY AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING, BUT NO LIMITED TO, DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES, AND SERVICES DESCRIBED HEREIN, PROVIDED THAT SAID CLAIMS OR SUITS ARE CAUSED BY ARTIST'S NEGLIGENCE OR WILFUL MISCONDUCT; AND ARTIST HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FOR ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KINDS OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES AND SERVICES DESCRIBED HEREIN, PROVIDED THAT SAID CLAIMS OR SUITS ARE CAUSED BY ARTIST'S NEGLIGENCE OR WILFUL MISCONDUCT. ARTIST LIKEWISE COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL INJURY, DAMAGE, AND/OR DESTRUCTION OF PROPERTY OF CITY, ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR OMISSIONS OF ARTIST, ITS OFFICERS, MEMBERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, INVITEES, LICENSEES, OR PROGRAM PARTICIPANTS. b. ARTIST AGREES TO AND SHALL RELEASE CITY, ITS AGENTS, EMPLOYEES, OFFICERS, AND LEGAL REPRESENTATIVES FROM ALL LIABILITY FOR INJURY, DEATH, DAMAGE, AND/OR LOSS TO PERSONS OR 13 PROPERTY SUSTAINED BY ARTIST IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THIS AGREEMENT. c. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. d. Artist agrees to accept indemnification provisions in substantially the same form as above, in the subsequent Commission Contract. e. All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. ARTICLE 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 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 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 the City of Fort Worth, and shall permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with such rules and regulations. 14 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 of Fort Worth. ARTICLE 9 MISCELLANEOUS 9.1 Compliance Artist shall comply with all Federal, State, and City statutes, ordinances and regulations applicable to the performance of Artist 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 15 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. 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 that 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. 16 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 rules 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 City Council fails to appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the 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 Artist's Address Artist shall notify the Contract Manager of changes in address. 9.14 Surviving Covenants The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of Artist. 9.15 City's Right to Complete In the event of the death or legal incapacity of Artist, the City of Fort Worth shall have the right to complete the Work and shall give credit to Artist, as appropriate. 17 9.16 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, Artist shall make all Records available to City at 1000 Throckmorton Street, Fort Worth, Texas or at another location in City acceptable to both parties following reasonable advance notice by City and shall otherwise cooperate fully with City during any audit. Notwithstanding anything to the contrary herein, Section 9.16 shall survive expiration or earlier termination of this Agreement. 9.17 Certified MWBE If applicable, Artist shall make its best effort to become a certified Minority/Women Business Enterprise (M/WBE) firm with a certifying agency whose certification is accepted by City under the City's M/WBE ordinance. 9.18 Survival Provision The provisions contained in Articles 5, 6, and 7 shall survive the termination or expiration of this Agreement. 9.19 Public Information Act Artist understands and acknowledges that City is a public entity under the laws of the State of Texas and as such, all documents held by City are subject to disclosure under Chapter 552 of the Texas Government Code. Artist shall clearly indicate to City what information it deems proprietary. If City is required to disclose any documents that may reveal any Artist Proprietary Information to third parties under the Texas Government Code, or by any other legal process, law, rule or judicial order by a court of competent jurisdiction, City will notify Artist prior to disclosure of such documents, and give Artist the opportunity to submit reasons for objections to disclosure. City agrees to restrict access to Artist's information to those persons within its organization who have a need to know for purposes of management of this Agreement. City agrees to inform its employees of the obligations under this paragraph and to enforce rules and procedures 18 that will prevent any unauthorized disclosure or transfer of information. City will use its best efforts to secure and protect Artist's information in the same manner and to the same degree it protects its own proprietary information; however, City does not guarantee that any information deemed proprietary by Artist will be protected from public disclosure if it release is required by law. The foregoing obligation regarding confidentialy shall remain in effect for a period of three (3) years after the expiration of this Agreement. ARTICLE 10 NOTICES All notices, requests, demands, and other communications that are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: 1. CITY OF FORT WORTH Fernando Costa, Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 Copies to: David Yett, City Attorney Law Department 1000 Throckmorton Street Fort Worth, TX 76102 Martha Peters, Vice President -Public Art Arts Council of Fort Worth &Tarrant County 1300 Gendy Street Fort Worth, TX 76107 in Corson, Authorized Member Corson Studios, L.L.C. 5707 29th Ave NE Seattle, WA 98105 [SIGNATURES APPEAR ON THE FOLLOWING PAGE.] 19 IN WITNESS HEREOF, the parties hereto have executed this Agreement on this day and year first written above. APPROVED AS TO FORM: Tyle Wallach Assistant City Attorney Date: I � 11 ^ 1 U Contract Authorization: No M&C Required CITY OF FORT WORTH Fernando Costa Assistant City M ager Date: By: Dan Date: ATTESTED BY: ized Member Marty Hendlr�x City Secretary Date: 3' i S' a e l 20 OEi�l�6;�L 1=:�CCRD T: W O .TH, TX Exhibit A: The Site Hemphill -Lamar Connector 21 Exhibit B: Artist's Conceptual Design: Birds in Formation 22 Exhibit U Budget AitTIST'S FEE (2tY};} TRAWEt {For artists who livA mcve than 50 miles from Fort Worth) Airfare Car Rental Pet Diem Expenses at y per day Mileage at pat mile INSURANCE Auta'Hired Wehicle Liability General Liability for Artist! Sutccntractots Worker's Camp.! Employers Liability Other, as applicable ADMINISTRATIVE E%PENSES Phcne,�Faa Delrrergr+Shlpp1rg (forconespondence, samples, models, drawings etc) Reprographic Servf e Supplies PROFESSIONAL CONSULTANT FEES {It applicable, drawing must be signed err! sealed by a profass(cnal registered to practice in the State of Texas) Architect' Structural Engineer` EleMrical Engineer' Conservatot' Photographer {for ddxumentation of oompletedwork)' Other' MATERIALS {Please attach s complete Ikt of materials. Itemize all anticiy3ated aspec4s arvd oomp3nents with per unit cost estimates) Materials' Total Cost increases?. Ptojscted Increase In Cost Materials 12 Months In Future FABRIGATI4N COSTS {Includs and itemize all porti3ns d sukccvttractedwork and walk to be oampleted ty artist.} Anist's Labor (__ hears at $_ per h3ur) Total Subcontracted Labor' (Total) FacilitytEquipment Rental (wed exclusively for this project) related to fabtication Ccst Increases?: Projected Increase in Cost Fahrbation 12 Months In Future SITE PREPARATION {Do not incLrde costs covered try F1NPA, City of Fort W cnih or others) Test Driilirg' Removal' Landaoapinq%igatIoW Electrical Modi iicati3ns' 23 Water WorkMechaNcal Devi es Other` Cost Increases?c Projected incresse in Coat Site Preparation 12 Months In Future TRANSPORTATION Materials to Falxication SiW Finished Work to Installation Site' Otl�r' Cost Increases?: Projected Increase In Cost Transportation 12 Months In Future BASEWOUNTING Base Mounting Devices and Components FoundatbnToxing Other Cost Increases?: Projected Increase in Cost MountingfFooting 12 Months In Future INSTALLATION COSTS {Cysts must Include ailaran:a for after hours installation, if araArahle. Please &aeon a o3mpleta list of equipm ant and individual estimates with this form) SLbacntracted LaW Scaffolding* LIGHTING Equipment Rental related to installation' Off -duly Polic&Securiy' Traffic Barriers' Storage Facility Rental Oiry Permits Display Devices F(reproding' Site Restoration' Other' Or_et Invraases7: Projected Ir�raase In C.3st installation 12 fdcttths In Future 6esk�ners' Factures' Bulbs' She Preparation' Installaton' Oost Inrreases?; Projected Irtcreaae in Coat Llghtittg 12 Mwrths 6r Future GRANT] TOTAL {insiuding proleCted Cosh Inctease, If arty} Please make anyneCessarynates here: Prep9rtrd By: [ktte: 24 Exhibit D: Sales Tax Exemption 'I�xAS CERTIFICATE OI+ EX>111SPTION I 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. Description of Items (or au attached order or invoice) To Be Purchased: All Items I claim this exemption for the following reason: Name of exempt organization: City of port Worth Texas Sales and Use Tax Permit Number 1-75-50005284 Project for which materials and supplies are purchased: T understand that I will Ue liable for payment of sales tax, which may become due for failure to comply with the provisions of the state, city, and/or metropolitan hamsit authority sales and use tax laws and comptroller rules regarding exempt purchases Liability for the tax will be determined by the price paid for the taxable items purchased or the fair market rental value for the period of time used. I understand that it is a misdemeanor to give an exemption certificate to the setter for taxable -items which I know, at the Tune of the purchase, will be used in a manner other than that expensed in this certificate and, upon conviction, may be fined up to $500 per offense Tax Exempt Status Due to Being a Governmental Entity Purchaser: City o£ Fort Worth Street Addtess: 1000 Throckmorton Street City, State, Zip Code: Tort Worth, Texas 76102 Sign Here: Date: 02l47l2007 Phone: f8171392-8325 Ttris certificate does not require a nmuber to be valid. Sates and use tax "exemption numbers" or "tax exempt' numbers do not exist. This certificate should be furnished to the supplier. Do not send the completed certificate to the Comptroller of Public Accounts_ 25 Exhibit E: Insurance Requirements PUBLIC ART PROJECTS -INSURANCE REQUIREMENTS Artist and/or Artist's Subcontractors will provide the following insurance requirements. 1. Commercial General Liability (CGL) $110009000 Each occurrence $2,000,000 Aggregate limit 2. 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. If Artist subcontracts fabrication, transportation and installation of the Work, Artist shall not be required to provide Commercial General Liability Insurance, however Artist's Subcontractor shall provide Commercial General Liability Insurance which shall name the Artist, and The City of Fort Worth as additional insured. 3. Automobile Liability $1,000,000 Each accident or $2505000 Bodily Injury per person $500,000 Bodily Injury per occurrence $1009000 Property Damage A commercial business policy shall provide coverage on "Any Auto," defined as autos owned, hired and non -owned. 4. For Artists and/or Artist's Subcontractors who have employees: Workers' Compensation Statutory limits Employer's liability $100,000 $100,000 $5005000 Each accident/occurrence Disease -per each employee Bodily Injury/Disease - policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.) and minimum policy limits for Employers' Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee. 26 GENERAL POLICY REQUIREMENTS • The City of Fort Worth, its Officers, Employees and Volunteers shall be named as an Additional Insured. Exception: The additional insured requirement does not apply to Workers' Compensation policies. • Thirty (30) days notice of cancellation or non -renewal. Example: "This insurance shall not be cancelled or non -renewed, until after thirty (30) days prior written notice has been given to the City of Fort Worth, except for ten (10) days notice for non-payment of premium. • Waiver of rights of recovery (subrogation) 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. Except for workers' compensation, 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." (If coverage is written on a claims -made basis, the retroactive date shall be coincident with or prior to the date of the contractual agreement and the certificate of insurance shall state that the coverage is claims made and the retroactive date. The insurance coverage shall be maintained for the duration of the contractual agreement and for five (5) years following completion of the service provided under the contractual agreement or for the warranty period, whichever is longer. An annual certificate of insurance submitted to the City shall evidence such insurance coverage.) • The deductible or self -insured retention (SIR) affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of the 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 the City's Risk Manager. • The City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their 27 limits when deemed necessary and prudent by the City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to the City of Fort Worth. The City shall be required to provide prior notice of ninety days. • The 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. m