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HomeMy WebLinkAboutContract 43719CITY SECRETARY CONTRACT 140.� AGREEMENT BETWEEN THE CITY OF FORT WORTH AND FRANK FR.AZIER FOR FINAL DESIGNS OF PUBLIC ART FOR THE GUINN SCHOOL PLAZA BENCHES • This Agreement is entered into this day of 0 CH7)2PV , 2012, by and between the City of Fort Worth, a home -rule municipal corporation of the State of Texas, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and Frank Frazier, an individual, of 1718 Ramsey Avenue, Dallas, Texas 75216. City has designated the Arts Council of Fort Worth and Tarrant County, Inc., to manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art project manager. WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of artists into the development of the City's capital infrastructure improvements, and to promote tourism and economic vitality in the City through the artistic design of public spaces; WHEREAS, City is designing and constructing a plaza on the historic James E. Guinn campus on the southwest corner of East Rosedale Street and I-35W, known as the Guinn School Plaza in Fort Worth, Texas; WHEREAS, City has set aside funds to commission public art/design enhancements in conjunction with the East Rosedale streetscape improvement project from the 2004 Capital Improvement Program, and the project was included in the FY2012 Annual Work Plan and Budget (approved by City Council on December 6, 2011 as M&C C-25337); WHEREAS, City hired Navarette Studio to create a public art master plan for West and East Rosedale, including the Guinn School Plaza, and Navarette Studio identified sixteen (16) benches to be built at the Site as public art opportunities; OFFICIAL RECORD CITY SECRETARY Ft WORTH, TX Agreement Between the City of Fort Worth and Page 1 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches WHEREAS, Artist participated in a public art workshop with other local artists to develop designs for public art for the Site and was retained to develop preliminary designs for the benches based on ideas and recommendations developed during the workshop; WHEREAS, the Fort Worth Art Commission (the "FWAC") approved the Artist's Preliminary Designs on May 9, 2011 and recommended that Artist be retained to develop individual final designs for four (4) benches based on Artist's participation in and the ideas and recommendations developed during a public art workshop, in coordination with the Other Project Artists, who are addressing the remaining twelve (12) benches; and WHEREAS, City and Artist wish to set out the terms and conditions under which said Works shall be designed to promote the integrity of Artist's ideas and statements as represented by the Works. NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement, the following terms shall have the meanings as set forth below: 1.1. Agreement - Means and includes this Agreement between the City of Fort Worth and Frank Frazier for Final Designs of public art for the Site. 1.2. Artist - Means and includes Frank Frazier and/or his heirs, executors, administrators, legal representatives, successors, agents, subartists, contractors, and assigns. 1.3. Artwork Designs - Means and includes both the Preliminary Designs and Final Designs of the Work, which are defined in 1.3.a. and 1.3.b. below. 1.3.a. Preliminary Designs - Means all preliminary drawings, sketches, prototypes, maquettes, models, narrative descriptions, budget estimates, and the like that were created by Artist in connection with City Secretary Contract Number 41514, any prior agreement for the Works, and the public art bench design workshop, which are attached hereto as Exhibit "A" and incorporated herein for all purposes. Agreement Between the City of Fort Worth and Page 2 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches 1.3.b. Final Designs - Means the Artist's final, proposed designs of the Works for the Site, which is based upon the City -approved Preliminary Designs and includes, but is not limited to, all final drawings, sketches, prototypes, maquettes, models, and the like that may be created by Artist in connection with this Agreement, or the like that are related, directly or indirectly, to the Works and shall include Artist's specifications for fabrication and installation of the Works. 1.4. Contract Manager - Means and includes the Arts Council of Fort Worth and Tarrant County, Inc., and/or its officers, directors, employees, agents, subsidiary organizations, parent organization, successor corporations, assigns, predecessors, stockholders, administrators, and related companies. 1.5. City - Means and includes the City of Fort Worth, Texas and its officers, representatives, agents, servants, and employees. 1.6. Community Group - Means and includes representatives of the community and/or stakeholders selected to review the Artwork Design. 1.7. 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. 1.8. Final Designs Deliverables - Means and includes those items set forth in Article 2.5 of this Agreement that are required for City's review and approval. 1.9. Parties - Means and includes City and Artist. 1.10. Other Project Artists - Means and includes artists Anita Knox, Earline Green, and Tina McIntire, who are addressing the remaining twelve (12) benches at the Guinn School Plaza. 1.11. Project - Means and includes the capital improvement or public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement. 1.12. Project Consultant - Means and includes the design firm/professional(s) hired by City to design the Site, namely, Komatsu Architecture. 1.13. Site - Means and includes a plaza on the historic James E. Guinn campus on the southwest corner of East Rosedale Street and I-35W, known as the Guinn School Plaza in Fort Worth, Texas, which is Agreement Between the City of Fort Worth and Page 3 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches more particularly described in Exhibit "B," attached hereto and incorporated herein by reference for all purposes. 1.14. Works - Means the finished objects of art and design that are the subject of this Agreement, or any intermediary stage of completion of such works and includes any reproductions or derivative works created by the City. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Artist Selection. City and Artist acknowledge that Artist's Preliminary Design was reviewed and approved by the FWAC on May 9, 2011, and is the basis for executing this Agreement with Artist. 2.2. Scone of Services. a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary for developing the Final Designs of the Works and for providing the Final Designs Deliverables. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist, in consultation with the Project Consultant and in coordination with Other Project Artists, shall determine the artistic expression, scope, design, color, size, material, and texture of the Works, subject to review and input from the Community Group and approval by City as set forth in this Agreement. c. Artist shall create four (4) designs for integration into four (4) bench tops at the Site. d. Artist shall consult with the City's selected fabricator to ensure that the Final Designs may be implemented within the implementation budget. e. The exact location at the Site where the Works shall be installed shall be determined by City. f. Artist, upon request of Contract Manager, shall provide information and/or attend meetings with appropriate City staff for purposes of risk assessment, safety review, sighting of the Works, and permitting. Agreement Between the City of Fort Worth and Page 4 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches g. Artist shall meet and coordinate with Project Consultant and others, as necessary, to ensure proper integration of the Works into the Site. h. Upon request of City, Artist shall consult with a qualified art conservator and shall provide written maintenance recommendations for the Works from said conservator to the Contract Manager. i. Artist shall present the Final Designs to the appropriate City committee, City staff, Community Group, and other City boards or commissions, as appropriate, for input and to the FWAC for review and approval at dates and times mutually agreed upon. 2.3. Implementation of Designs Artist understands that this contract is for final design only. The Works shall be fabricated and installed by another entity selected through a process overseen by City. Artist shall develop Final Designs that are financially feasible relative to the budget for implementation based upon consultation with the City -selected fabricator. It is understood that the total budget for implementation of the Final Designs is estimated to be TWO THOUSAND TWO HUNDRED FIFTY DOLLARS AND NO CENTS ($2.250.00) per bench top, for a total of NINE THOUSAND DOLLARS AND NO CENTS ($9,000.00), which includes all costs for materials, labor, fabrication, delivery, installation, insurance, transportation, travel, and all other associated costs for the Works. 2.4. City Assistance. Upon request by Artist, City shall promptly furnish all information and materials required by Artist to the extent that such materials are available. City, upon request by Artist, shall also provide correct scaled drawings of the Site, if available. 2.5. Final Designs Deliverables Within two (2) months after the Effective Date, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Article 2.5 to City for approval. Final Designs Deliverables shall consist of the following: a. Detailed, design illustrations of the Works for the Site, which shall in a high resolution digital format, such as JPEG or TIF files; Agreement Between the City of Fort Worth and Page 5 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches b. A final written narrative of the Works, describing the following: (1) the Final Designs concepts; (2) Recommended materials, fabrication, and installation methods for all elements of the Works; (3) Comprehensive scaled working drawings for all elements of the Works. 2.6. Final Designs Review. a. Upon completion of the Final Designs Deliverables, Artist shall meet with the designated Community Group, City staff, and other City boards or commissions, as appropriate, to present the Final Designs, at a date and time mutually agreed upon, for input. b. Artist shall present the Final Designs to the FWAC for approval at a regularly scheduled FWAC meeting. City shall notify Artist of its approval, or disapproval, of the Final Designs within thirty (30) business days of Artist's presentation(s) to the FWAC. c. If City disapproves of any of the Final Designs, either in whole or in part, then City shall inform Artist of each revision to be made to the specified Final Design. City may require Artist to make such revisions to the Final Design(s) as City deems necessary in its sole discretion and/or for the Works 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. Artist shall have thirty (30) calendar days from the date City informed Artist of the revision(s) to present the revised Final Design(s) in conformance with City's requirements. e. If City disapproves of the resubmitted Final Design(s), 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 may be terminated, in whole or in part at City's sole discretion, with payment for work performed per the payment schedule in Article 3 up through the date of termination. Artist shall provide the disapproved Final Design(s) presentation materials to the Contract Manager to become part of the City's Public Art archive. f. Upon City approval of the Final Designs, any revisions made to a City -approved Final Design(s) shall become part of the Final Designs. Artist shall incorporate any City -approved revisions into the Agreement Between the City of Fort Worth and Page 6 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches final design in conformance with City's requirements. Artist shall provide the Final Designs 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. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Total compensation to Artist under the Agreement shall be TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00), which shall constitute full compensation for any and all costs associated with the Agreement, including, but not limited to, all travel expenses and services performed and materials furnished by Artist under this Agreement. Artist and City may amend this Agreement to allow for additional payment if additional services are required. 3 2 Payment Schedule City agrees to pay Artist in the following installments set forth below, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof: a. FIVE HUNDRED DOLLARS AND NO CENTS ($500.00) upon execution of this Agreement. b. FIVE HUNDRED DOLLARS AND NO CENTS ($500.00) within thirty (30) calendar days after Artist submits all of the Final Designs Deliverables required under Article 2.5 of this Agreement and makes a presentation(s) of the Final Designs to the FWAC. c. ONE THOUSAND DOLLARS AND NO CENTS ($1,000.001 within thirty (30) calendar days after City's approval of the Final Designs. 3.3. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Project. City shall supply Artist with the "Texas Certificate of Exemption," in substantially the same form as that attached hereto as Exhibit "C" for use by Artist in the fulfillment of this Agreement. Agreement Between the City of Fort Worth and Page 7 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches 3.4. Artist's Expenses. Artist shall be responsible for the payments of all expenses incurred during the per formance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on submissions to City and/or Contract Manager, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 4 TERM AND TERMINATION 4.1. Term This Agreement shall be in effect from the Effective Date and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City. 4.2. Gratuities City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or given by Artist or any agent or representative to any City or Contract Manager official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. 4.3. Termination for Cause If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this Article 4.3 in accordance with the dispute resolution process set forth in Article 5. If the Parties cannot resolve the dispute(s), then the disputing party shall thereupon have the right to terminate this Agreement upon the delivery of a written "Notice of Termination" specifying the grounds for termination. Termination of this Agreement under this provision shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. Agreement Between the City of Fort Worth and Page 8 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches 4.4. Termination for Convenience a. The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted thirty (30) calendar days before termination, specifying the grounds for termination. b. If the termination is for the convenience of City, City shall pay Artist for services actually rendered up to the effective date of termination, and Artist shall continue to provide the City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon payment in full of all monies due for services provided up to the effective date of termination, City shall have the right, in its sole discretion, to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination, provided that no right to fabricate or execute the Works shall pass to City. c. If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to pay Artist for services actually rendered up to the effective date of termination or require the Artist to remit to City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to the effective date of termination. If City chooses to pay Artist for services actually rendered, then all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination shall become property of City. 4.5. Incapacity of Artist In the event of Artist's death or Artist becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to death or incapacity. All work product produced by Artist, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination shall become property of City. Agreement Between the City of Fort Worth and Page 9 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches ARTICLE 5 DISPUTE RESOLUTION If either Artist or City has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement, the Parties shall first attempt to resolve these issues through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach, or other matter in question that may arise out of or in connection with this Agreement. If the Parties fail to resolve the dispute within sixty (60) calendar days of the date of receipt of the notice of the dispute, then the Parties may submit the matter to non -binding mediation upon written consent of the authorized representatives of both parties in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code, then in effect. Request for mediation shall be in writing, and shall request that the mediation commence not less than fifteen (15) or more than forty-five (45) calendar days following the date of request, except upon Agreement of the Parties. In the event City and Artists are unable to agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty (30) calendar days following the date of the request for mediation, then all the conditions precedent in this article shall be deemed to have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No provision of this agreement shall waive any immunity or defense. No provision of this Agreement constitutes consent to sue. If the Parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. (See Article 4.3) Agreement Between the City of Fort Worth and Page 10 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1 General Upon final payment by the City to Artist, City shall take title to the Artwork Designs, Works, and all other work product under this Agreement or any prior agreement for the Works, including, but not limited to, all documents and/or drawings that constitute or are components of the Artwork Designs and/or Works, without restriction on future use, except as provided below. 6.2 Copyright Ownership. Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole author of the Works for the duration of the copyright 6.3 Reproduction Rights. a. In view of the intention that the Artwork Designs and Works be unique, Artist shall not make any additional exact duplicate reproductions of the Artwork Designs or Works nor shall Artist grant permission to others to do so except with the express written permission of City. However, nothing herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic expression. b. Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Artwork Designs, except as those rights are limited by this Agreement. c. Artist understands and acknowledges that City will fabricate or hire another person or entity to fabricate the Artwork Designs and/or Works and install the Works under a separate contract. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. d. Artist grants to City an exclusive absolute and unrestricted right and license to fabricate or hire another person or entity to fabricate the Works as reproductions or as derivative works based on the Final Designs. City shall own full right and title, excluding any rights of copyright, to any reproductions or derivative works created by City. Agreement Between the City of Fort Worth and Page 11 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches e. City may make and disseminate photographs, drawings, and other two-dimensional reproductions of the Artwork Designs or Works and accompanying materials for any municipal purpose. f. Artist also grants to the City a perpetual, irrevocable license to graphically depict or display the Artwork Designs and/or Works for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Designs and/or Works 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. g. Notwithstanding anything to the contrary, Artist agrees and understands that nothing in this paragraph shall affect or limit City's exclusive, absolute, unrestricted rights incidental to City's full ownership of the Artwork Designs and Works to alter, change, modify, destroy, remove, move, replace, operate, maintain, transport, sell or transfer, in whole or in part, the Artwork Designs and Works 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. h. Unless notified otherwise by City, Artist shall use Artist's best efforts in any public showing or resume use of reproductions to give acknowledgment to City in substantially the following form. "an original artwork commissioned by and in the public art collection of the City of Fort Worth, Texas." i. Nothing in this Agreement shall prevent the Artist from using images of the Artwork Designs and/or Works for marketing and promotional purposes in connection with the Artist's business. j. City is not responsible for any third -party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. Agreement Between the City of Fort Worth and Page 12 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches ARTICLE 7 ARTIST'S RIGHTS 7.1. Identification. Contract Manager shall include credit to Artist on the Fort Worth Public Art website (www.fwpublicart.ora) and a permanent plaque at the site. 7 2 Maintenance. City recognizes that maintenance of the Works on a regular basis is essential to the integrity of the Works. City shall reasonably assure that the Works are properly maintained and protected, taking into account the maintenance instructions provided by the City -selected fabricator. 7.3. Repairs and Restoration. a. City shall have the right to determine when and if repairs and restorations to the Works will be made. During Artist's lifetime and to the extent practicable, City shall give Artist the right to approve all major repairs and restorations; provided, however, Artist shall not unreasonably withhold approval for any repair or restoration of the Works. Should Artist unreasonably withhold approval of any intended repair or restoration, City shall have the right to make such repair or restoration. To the extent practicable, Artist, during Artist's lifetime, shall be given the opportunity to personally supervise major repairs and restorations and shall be paid a reasonable fee for any such services, provided that City and Artist shall agree, in writing, prior to commencement of any significant repairs and restorations, upon Artist's fee for such services. Should Artist fail to agree to make or supervise the repairs and restorations, City shall have the right to choose another entity or person to assist with the restoration and/or repairs or make said repairs by City. b. All repairs and restorations shall be made in accordance with recognized conservation standards (in accordance with the American Institute of Conservation (AIC) Code of Ethics and Guidelines for Practice) and/or construction standards, including, but not limited to, any standards set forth by City. c. City may require Artist to submit professional documents supporting Artist's proposal for repairs and restorations prior to commencement of repairs or restorations. Agreement Between the City of Fort Worth and Page 13 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches d. When emergency repairs are necessary to prevent the loss of or further damage to the Works or to prevent risks to the public, such repairs shall be undertaken or arranged by City without advance notice to Artist, and such repairs shall not be deemed to constitute artistic alteration. 7.4. Alteration of the Works or of the Site. a. In the event that the Works are incorporated into a building, structure or realty, the installation of the Works may subject it to destruction, distortion, mutilation or other modification by reason of its removal. If removal of the Works would damage either the Works or the Site, City shall have the right to remove the Works by any means, including destruction, in performing maintenance, repair, renovation, or reconstruction of the building, structure or in devoting realty to a new use. City may give Artist written notice of its intent to take such action under this paragraph. b. In the event that the Works are freestanding, or incorporated into a building, structure or realty such that it may be removed without damaging or destroying the Works or the building or structure, Artist may be given written notice and ninety (90) days to remove the Works at his or her sole expense. Upon Artist's failure to remove the Works, City shall have the right to remove and dispose of the Works by any means, including its destruction. c. City agrees that it will not willfully destroy, damage, or modify the Works, except as provided in paragraphs a. and b. above. d. In the event the Works are substantially damaged or altered, City shall no longer represent the Works as that of Artist if Artist gives written notice to City that it is the position of Artist to deny authorship on the grounds stated in this paragraph. e. City shall, at all times, have the right to move the Works, or remove some or all of them from public display. City shall also have the right to sell or trade the Works. 7.5. Permanent Record. City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Works. Agreement Between the City of Fort Worth and Page 14 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches 7.6. Artist's Address. Artist shall notify City of changes in the address set forth in Article 13. 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 of Article 7 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. 7.7. Additional Rights and Remedies. Nothing contained in this Article 7 shall be construed as a limitation on such other rights and remedies available to Artist under the law, which may now or in the future be applicable. ARTICLE 8 WARRANTIES OF TITLE AND COPYRIGHT Artist represents and warrants that: a. Artist owns legal title and copyright in and to the Artwork Designs and/or Works such that Artist can make the grant of rights contained in this Agreement; b. Artwork Designs and/or Works shall be the original product of Artist's sole creative efforts. c. Artwork Designs and/or Works are and will be unique and original, and do not infringe upon any copyright or the rights of any person; d. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork Designs and/or Works or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; e. Artwork Designs and/or Works (or duplicate thereof) have not been accepted for sale elsewhere; f. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and 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. Agreement Between the City of Fort Worth and Page 15 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches ARTICLE 9 ARTIST AS INDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of City. Artist shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of his/her officers, agents, employees, and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artist, his/her officers, agents, employees and subcontractors, and doctrine of respondent superior has no application as between City and Artist. 10.1. General Indemnity ARTICLE 10 INDEMNIFICATION i. ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM THE NEGLIGENT ACT, ERROR, OR OMMISSION OF ARTIST AND/OR ARTIST'S SUBARTISTS AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. Agreement Between the City of Fort Worth and Page 16 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches ii. Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained or caused by Artist in connection with or incidental to peiformance under this Agreement. iii. 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. 10.2. Intellectual Property Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE ARTWORK DESIGNS AND/OR WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artist. 10.3. Survival All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. Agreement Between the City of Fort Worth and Page 17 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches ARTICLE 11 EQUAL OPPORTUNITY a. Artist shall not engage in any unlawful discrimination based on race, creed, color, national origin, sex, age, religion, disability, marital status, citizenship status, sexual orientation or any other prohibited criteria in any employment decisions relating to this Agreement, and Artist represents and warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be debarred from further agreements with City. ARTICLE 12 MISCELLANEOUS 12.1. Compliance Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the pet formance of Artist's services under this Agreement. 12.2. 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. 12.3. 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. 12.4. 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. Agreement Between the City of Fort Worth and Page 18 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches 12.5. 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. 12.6. 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. 12.7. No Third-Partv 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. 12.8 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. 12.9. Force Majeure It is expressly understood and agreed by the Parties to this Agreement that, if the performance of any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather; governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots; material or labor restrictions; transportation problems, or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so Agreement Between the City of Fort Worth and Page 19 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches 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. 12.10. Contract Construction The Parties acknowledge that each party and, if it so chooses, its counsel, have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 12.11. Fiscal Funding Out If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 12.12. Captions Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 12.13 Right to Audit Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Works (collectively "Records") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, the Artist shall make all Records available to the City at 1000 Throckmorton Street, Fort Worth, Texas or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. Notwithstanding anything to the contrary herein, this Article shall survive expiration or earlier termination of this Agreement. Agreement Between the City of Fort Worth and Page 20 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches 12.14 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 the City under the City's M/WBE ordinance. 12.15 Survival Provision The provisions contained in Articles 6 (Ownership and Intellectual Property Rights), 7 (Artist's Rights), 8 (Warranties of Title and Copyright), 9 (Artist as an Independent Contractor), and 10 (Indemnification) shall survive the termination or expiration of this Agreement. 12.16 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 of Artist's 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 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 release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Agreement. Agreement Between the City of Fort Worth and Page 21 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches 12.17 Counterparts and Electronic Signatures This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 12.18. Time Extensions The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. ARTICLE 13 NOTICES All notices, requests, demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: 1. CITY OF FORT WORTH: Fernando Costa, Assistant City Manager City Manager s Office City of Fort Worth 1000 Throckmorton Street, Third Floor Fort Worth, Texas 76102 Copies to: 2. ARTIST Sarah Fullenwider, City Attorney Office of the City Attorney City of Fort Worth 1000 Throckmorton Street, Third Floor Fort Worth, Texas 76102 Martha Peters, Vice President, Public Art Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Foit Worth, Texas 76107 Frank Frazier 1718 Ramsey Avenue Dallas, Texas 75216 [SIGNATURES APPEAR ON THE FOLLOWING PAGE] Agreement Between the City of Fort Worth and Page 22 of 36 Frank Frazier for Final Design of Public Art for the Guinn School Plaza Benches IN WITNESS HEREOF, the Parties hereto have executed this Agreement as of the Effective Date. CITY OF FORT WORTH by: � Fernando Costa Assistant City Manager APPROVED AS TO FORM AND LEGALITY: Ow( !Litt( `Tyler F. Wallach 1% Assistant City Attorney ATTESTED BY: Maly J. 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