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HomeMy WebLinkAboutContract 46385CITY SEM COPffRAGT PIO. AGREEMENT BETWEEN THE CITY OF FORT WORTH AND CORSON STUDIOS, L.L.C. FOR PRELIMINARY PARTIAL REDESIGN OF PUBLIC ART FOR HMPHILL LAMAR CONNECTOR This Agreement is entered into this day of /Z , 2015, by and between the City of Fort Worth, a home -rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager, and Corson Studios, L.L.C, a Washington Company located at 5707 29th Avenue NE, Seattle, WA 98105, and acting by and through Dan Corson its duly authorized Member. City has designated the Arts Council of Fort Worth and Tarrant County, Inc., to manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art project manager. WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of artists into the development of the City's capital infrastructure improvements, and to promote tourism and economic vitality in the City through the artistic design of public spaces; WHEREAS, City is 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; and WHEREAS, funds for the project have been allocated from the 2004 Capital Improvements Program (Proposition 1) for public art associated with the Hemphill -Lamar Connector (the "Project") and the public art project is included in the Fiscal Year 2015 Annual Work Plan and Budget, adopted by City Council on October 14, 2014 (M&C C-27031); and WHEREAS, on March 15, 2010, the City entered into a contract with Artist to develop a final design for the Site (Fort Worth City Secretary Contract No. 39962), which was amended on February 21, 2011 (Fort Worth City Secretary Contract No. 39962-A); and WHEREAS, on November 14, 2011, the Fort Worth Art Commission (FWAC) approved the Artist's final design of sculptures entitled "Vortex" and "Flight," and recommended that Artist be retained to fabricate, deliver, and install the sculptures at the Site; and WHEREAS, on November 11, 2013, project stakeholders approached the City requesting certain design changes to the north end of the Site, specifically to the "Vortex" sculpture of Artist's final design; and WHEREAS, City has requested Artist develop a new preliminary design to replace the "Vortex" Sculpture to one that bears a similarity to the "Flight" element of Artist's Final Design for the south end of the Site; and Agreement with Corson Studios, L.L.C. for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 RECEIVED JAN 2 9RM, WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be designed to promote the integrity of Artist's ideas and statements as represented by the Work. NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement, the following terms shall have the meanings as set forth below: 1.1. Agreement — Means and includes this Agreement between the City of Fort Worth and Corson Studios, L.L.C., for Preliminary Partial Redesign of public art for the Site. 1.2. Artist - Means and includes Corson Studios, L.L.C.. 1.3. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant County, Inc , and/or its officers, directors, and employees. 1.4. City — Means and includes the City of Fort Worth, Texas. 1.5. 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. 1.6. Final Design — Means the Artist's Final Design of sculptures entitled "Vortex" and "Flight," for the Site, which is based upon the City -approved Preliminary Design and includes, but is not limited to, all final drawings, sketches, prototypes, maquettes, models, and the like that were created in connection with Artist's previous Agreement, or the like that are related, directly or indirectly, to the sculptures entitled "Vortex' and "Flight," and shall include Artist's specifications for fabrication and installation of the sculptures entitled ' Vortex" and `Flight," by Artist were created by Artist in connection with the Final Design Contract, depictions of which are attached hereto as Exhibit "A" and incorporated herein for all purposes. 1.7. Parties — Means and includes City and Artist. 1.8. Preliminary Partial Redesign - Means all preliminary drawings, sketches, prototypes, maquettes, models, narrative descriptions, budget estimates, and the like that that may be created by Artist in connection with this Agreement, or the like that are related, directly or indirectly, to the Work and shall include Artist's specifications for fabrication and installation of the Work 1.9. Preliminary Partial Redesign Deliverables — Means and includes those items set forth in Article 2.3 of this Agreement that Artist is required to submit to City for its review and approval. 1.10. Project — Means and includes the capital improvement or public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement. Agreement with Corson Studios L.L.C. for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 2 of 25 1.11. Project Stakeholders — Means and includes the appropriate City Council Member(s), and their appointed community representatives and the Fort Worth Art Commission's appointed representative and others as may be appropriate, including the stakeholder group known as I -Care. 1.12. Project Consultant — Means and includes the design firm/professional(s) hired by City to design the Site, TranSystems Corporation. 1.13. Site — Means and includes the Hemphill -Lamar Connector - 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, which is more particularly described in Exhibit "B," attached hereto and incorporated herein by reference for all purposes. 1.14. Work — Means and includes the finished object(s) of art and design that are the subject of this Agreement, or any intermediary stage of completion of such work. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Scope of Services. a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary for developing a Preliminary Partial Redesign of the Work to replace the "Vortex" sculpture on the north end of the Site and for providing the Preliminary Partial Redesign Deliverables. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and input from Project Stakeholders and approval by City as set forth in this Agreement. c. The location at the Site where the Work shall be installed shall be mutually agreed upon by City, Artist, Union Pacific Railroad, and Texas Department of Transportation (TXDOT). d. Artist, upon request of Contract Manager, shall provide information and/or attend meetings with appropriate City staff for purposes of risk assessment, safety review, sighting of the Work, and permitting. e. Prior to commencing the Preliminary Partial Redesign, Artist shall meet with and seek input from Project Stakeholders, specifically, I -Care. f. Artist shall explore concepts for the Work, within the preliminary implementation budget set forth in Article 2.3. The budget set forth in Article 2.3 shall cover both the Work under this Agreement and "Flight." However, artist may also propose a budget increase if necessary to make the necessary impact on the Site. Agreement with Corson Studios, L L C for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 3 of 25 g. Artist shall meet and coordinate with the Project Consultant, Union Pacific Railroad, and/or TXDOT and others, as necessary, to explore the feasibility of integrating the Work into the Site in terms of structural support, lighting electricity, or other infrastructure needs to support the Work. h. Artist shall present the Preliminary Partial Redesign to Project Stakeholders, specifically I -Care, the appropriate City staff, and other City boards or commissions, as appropriate, for input and to the FWAC for review and approval at dates and times mutually agreed upon i. Artist shall make a minimum of two (2) trips to Fort Worth, Texas for meetings and presentations as indicated above. Additional trips, if required per this Article, may be negotiated and agreed upon in writing by City and Artist. 2.2. 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. 2.3. Preliminary Partial Redesign Deliverables. a. Within three (3) months after the Effective Date, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Article 2.3 to City for approval. Preliminary Partial Redesign Deliverables shall consist of the following: i. Two (2) Preliminary Partial Redesign illustrations showing the proposed Work from two vantage points, including a plan view, which shall be at least 20" x 30" and mounted on foam core and/or in a high resolution digital format such as JPEG or TIF files; ii. A narrative description of the Artist's concept, proposed materials, fabrication, and installation methods, timeline for completion and maintenance, and anticipated annual maintenance requirements; iii. Installation diagram, including approximate weight of the Work, proposed base, footing, or attachment method(s) and, if applicable, location(s) for any electrical outlets and lighting fixtures; iv. A preliminary budget estimate, on the budget form attached hereto as Exhibit "C," for implementation of a final design of the entire project, including the Work created under this Agreement as well as "Flight," in an amount not exceed TWO HUNDRED FIFTY-TWO THOUSAND ONE HUNDRED NINTY-ONE DOLLARS AND THIRTY-ONE CENTS ($252,191.31), which includes all costs for materials, labor, fabrication, delivery, installation, insurance, transportation, remaining Artist's fee, and all other associated costs for the Work including, but not limited to, lighting and travel. Agreement with Corson Studios, L L C for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 4 of 25 2.4. Preliminary Partial Redesign Review. a. Upon completion of the Preliminary Partial Redesign Deliverables, Artist shall meet with I -Care, Project Consultant and City staff to present the Preliminary Partial Redesign, at a date and time mutually agreed upon, for input. b. Artist shall present the Preliminary Partial Redesign to the FWAC for review and input at a regularly scheduled FWAC meeting. c. After presenting to the FWAC for initial input, Artist shall meet with all Project Stakeholders, including I -Care, City staff, and other City boards or commissions, as appropriate, to present the Preliminary Partial Redesign, at a date and time mutually agreed upon, for input. d. Artist shall then present the Preliminary Partial Redesign to the FWAC for approval at a regularly scheduled FWAC meeting. e. City shall notify Artist of its approval, or disapproval, of the Preliminary Partial Redesign within thirty (30) business days of Artist's presentation to the FWAC. f. If City requires any revisions to the Preliminary Partial Redesign, then City shall inform Artist of each revision. City may require Artist to make such revisions to the Preliminary Partial Redesign as City deems necessary in its sole discretion and/or for the Work to comply with applicable statutes, ordinances, or regulations of any governmental regulatory agency having jurisdiction over the Site for reasons of safety and security. g. Artist shall have thirty (30) calendar days from the date City informed Artist of the revision(s) to present the revised Preliminary Partial Redesign in conformance with City's requirements. h. If City disapproves of the resubmitted Preliminary Partial Redesign, any further Preliminary Partial Redesign 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 to the Artist per the payment schedule in Article 3 up through the date of termination. (See Article 4.4.d) i. Upon City approval of the Preliminary Partial Redesign, any revisions made to a City -approved Preliminary Partial Redesign shall become part of the Preliminary Partial Redesign. Artist shall incorporate any City -approved revisions into the final design in conformance with City's requirements. Any revisions shall become part of any final design deliverables if the Artist proceeds to the final design phase. Artist shall provide the Preliminary Partial Redesign presentation materials to the Contract Manager to become part of the City of Fort Worth Public Art archive owned by City. These documents, models, and/or drawings will be retained for archival and exhibition purposes. j. Upon the expiration of the Tenn (hereinafter defined) of this Agreement, if the Preliminary Partial Redesign is accepted by City and funding is appropriated by the Fort Worth City Council, Agreement with Corson Studios, L.L.C. for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 5 of 25 negotiations for final design or final design and commission for fabrication, delivery, and installation of the Work shall commence, which shall become part of the deliverable under any anticipated final design or final design/artwork commission contract. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Total compensation to Artist under the Agreement will be an amount up to ELEVEN THOUSAND DOLLARS AND NO CENTS ($11,000.00), which shall constitute full compensation for any and all costs associated with the Agreement, including, but not limited to, travel expenses for two trips to Fort Worth and services performed and materials furnished by Artist under this Agreement. Artist and City may amend this Agreement to allow for additional payment if additional services are required. 3.2. Payment Schedule. a. City agrees to pay Artist in the following installments set forth below, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof: i. THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) (upon execution of this Agreement. ii. THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) within thirty (30) calendar days after Artist submits all of the Preliminary Partial Redesign Deliverables required under Article 2.3 of this Agreement and makes a presentation(s) of the Preliminary Partial Redesign to the FWAC. iii. THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) within thirty (30) calendar days after City's approval of the Preliminary Partial Redesign. iv. City may pay Artist contingency funds in an amount up to TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) for costs associated for engineering consultation. Such payment will be made upon (i) receipt of supporting documentation by the Contract Manager from the Artist and (ii) approval by the Contract Manager of the additional costs. 3.3. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Project. City shall supply Artist with the "Texas Certificate of Exemption " in substantially the same form as that attached hereto as Exhibit "D ' for use by Artist in the fulfillment of this Agreement. Agreement with Corson Studios, L.L.C. for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 6of25 3.4. Artist's Exnenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on submissions to City and/or Contract Manager, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 4 TERM AND TERMINATION 4.1. Term. This Agreement shall be in effect from the Effective Date and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City. 4.2. Gratuities. City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or given by Artist or any agent or representative to any City or Contract Manager official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. 4.3. Termination for Cause. If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this Article 4.3 in accordance with the dispute resolution process set forth in Article 5 If the Parties cannot resolve the dispute(s), then the disputing party shall thereupon have the right to terminate this Agreement upon the delivery of a written ' Notice of Termination" specifying the grounds for termination Termination of this Agreement under this provision shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. 4.4. Termination for Convenience. a. The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted thirty (30) calendar days before tennination b. If the termination is for the convenience of City, City shall pay Artist pursuant to the payment provision in Article 3 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, Agreement with Corson Studios, L L C for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 7of25 photographs, models and designs, up to the effective date of termination, provided that no right to fabricate or execute the Work shall pass to City. c. If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to pay Artist pursuant to the payment provision in Article 3 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, then all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination shall become property of City. d. If termination is by mutual agreement of the Parties as set forth in Article 2.4, then City shall pay Artist per the payment schedule in Article 3 up through the date of termination City shall have the right to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination 4.5. Incapacity of Artist. a. In the event that Artist becomes incapable, legally or otherwise, of performing its duties and/or obligations under 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 incapacity. All work product produced by Artist, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination shall become property of City. b. Should Artist's Preliminary Partial Redesign have been approved, in the event of termination under this Article 4.5, City shall have the right to complete the Work, if feasible. Due regard shall be made for Artist s intended results and proper credit and acknowledgement shall be given to Artist. ARTICLE 5 DISPUTE RESOLUTION a. If either Artist or City has a claim, dispute, or other matter m 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 parry'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. Agreement with Corson Studios, L L C for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 8 of 25 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 Artist or pursuant to the applicable termination provision of this Agreement, the Preliminary Partial Redesign, Work, and all other work product under this Agreement shall become the property of City, without restriction on future use, except as provided below. Artist shall retain copyright and other intellectual property rights in and to the Preliminary Partial Redesign and Work. By execution of this Agreement, Artist grants to the City an exclusive, perpetual, royalty free, and irrevocable license to graphically depict and publicly display the Preliminary Partial Redesign and Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Preliminary Partial Redesign or Work intended to promote or benefit City, its public services or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non-commercial purpose. b. In view of the intention that the Preliminary Partial Redesign and the Work be unique, Artist shall not make any additional exact duplicate reproductions of the Preliminary Partial Redesign or the Work nor shall Artist grant permission to others to do so except with the express written permission of City. However, nothing herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic expression. c. Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Preliminary Partial Redesign and Work, except as Agreement with Corson Studios L L C for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 9of25 those rights are limited by this Agreement. City may make and disseminate photographs, drawings and other two-dimensional reproductions of the Preliminary Partial Redesign and Work and accompanying materials for any municipal purpose. All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: "O date, Artist's name." d. Nothing in this Agreement shall prevent the Artist from using images of the Preliminary Partial Redesign and/or Work for marketing and promotional purposes in connection with the Artist's business. e. City is not responsible for any third -party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. 6.2. Artist's Address. Artist shall notify City of changes in Artist's address as set forth in Article 12. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights. ARTICLE 7 WARRANTIES OF TITLE AND COPYRIGHT a. Artist represents and warrants that: i. Preliminary Partial Redesign and Work shall be the original product of the Artist's sole creative efforts. ii. Preliminary Partial Redesign and Work are and will be unique and original, and does not infringe upon any copyright or the rights of any person; iii. Artist has not sold, assigned, transferred, licensed, granted encumbered, or utilized the Preliminary Partial Redesign or Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; iv. Preliminary Partial Redesign and Work (or duplicate thereof) have not been accepted for sale elsewhere; v. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and vi. All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc , and with all necessary care, skill and diligence. ARTICLE 8 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 Agreement with Corson Studios, L.L.C. for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 10 of 25 the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of his/her officers agents, employees, and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artist, his/her officers, agents, employees and subcontractors, and doctrine of respondent superior has no application as between City and Artist. ARTICLE 9 INDEMNIFICATION 9.1. General Indemnity a. ARTIST COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR OMISSIONS OF ARTIST AND/OR ARTIST'S OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMEBERS, PARTNERS, REPRESENTATIVES, SUBARTISTS AND CONTRACTORS AND ARTIST'S SUBARTISTS' AND CONTRACTORS' RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. b. Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained or caused by Artist in connection with or incidental to performance under this Agreement. c. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. 9 2 Intellectual Property. Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying Agreement with Corson Studios L L C for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 11 of 25 royalties that are due for the use of other third party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artist. ARTICLE 10 EOUAL OPPORTUNITY a. Artist shall not engage in any unlawful discrimination based on race, creed, color, national origin, sex, age, religion, disability marital status, citizenship status, sexual orientation or any other prohibited criteria in any employment decisions relating to this Agreement, and Artist represents and warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be debarred from further agreements with City ARTICLE 11 MISCELLANEOUS 11.1. Compliance. Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the performance of Artist's services under this Agreement. 11.2. Entire Agreement. This writing embodies the entire agreement and understanding between the Parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 11.3. Amendments. No alteration, change, modification, or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. Agreement with Corson Studios L.L.C. for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 12 of 25 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 Artist and their respective successors and permitted assigns. 11.7. 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. 11.8. Severabilitv. 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 Mai eure. It is expressly understood and agreed by the Parties to this Agreement that, if the performance of any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather; governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots; material or labor restrictions; transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. 11.10. Contract Construction. The Parties acknowledge that each party and, if it so chooses, its counsel, have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved Agreement with Corson Studios, L.L.C. for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 13 of 25 against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 11.11. Fiscal Funding Out. If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 11.12. Captions Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 11.13. Right to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Work (collectively "Records") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, the Artist shall make all Records available to the City at 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. Artist shall require all of its subcontractors to include in their subcontracts a right to audit in favor of City in substantially the same form as described in this Article 11.13. 11.14. Certified MBE/WBE. If applicable, Artist is encouraged to make its best effort to become a certified Minority Business Enterprise (MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is accepted by the City under the City's Business Diversity Enterprise Ordinance. 11.15. Survival Provision. The provisions contained in Articles 4.5 (Incapacity of Artist), 6 (Ownership and Intellectual Property Rights), 7 (Warranties of Title and Copyright), 8 (Artist as an Independent Contractor), 9 (Indemnification), and 11.13 (Right to Audit) shall survive the termination or expiration of this Agreement. 11.16. Counterparts and Electronic Signatures. This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 11.17. Time Extensions. The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. Agreement with Corson Studios, L L C for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 14of25 A It'I'IC LE 12 NOTICES • • All notices, requests, demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified nmil, return receipt requested, postage prepaid, as Io1kvws: 1. CITY OF I"ORT WOItTI 1: Assistant City Manager City Manager's office City of*Fort Worth 1000 'I'hrockmorton Street, Third Floor Fort Worth, Texas 76102 Copies to: 2, ARTIST City Attorney Office ot'the City Attorney City of Fort Worth 1000 'I1irockmorton Street, Third Floor Fort Worth, Texas 76 102 Martha Peters. Vice President, Public Art Arts Council of Fort Worth & Tarrant County 1300 Gently Str4et Fort Worth, Texas 76107 Dan Corson, Authorized Member Corson Studios, 5707 2911' Avenue NE Seattle, WA 98105 IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective as oldie Effective Date. CITY I'Y OF F FORT W o R't't I by: Fernando Costa Assistaint City Manager APPROVED AS TO FORM AND LEGALITY: Jes . i 't Sangsvai Assi tant City Attorney C'C)RSC )N STUDIOS, 1., I ,.(', by: Dan Co % _- n Authorized Member Agreement with Corson Studios, L.L.C. for Preliminary Partial Redesign of Public Art for Hemphill -Islay Connector Execution Copy 1/7/15 • 15 ol'25 -"•••• T- ATTESTED BY: /M ry J. Kayse City Secretary Agreement with Corson Studios, L L C. for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 16 of 25 Exhibit A: "Vortex" sculpture (the subject of redesign) Corson Studios LLC www.corsonart.com Hemphill / Lamar. Total Longhorns: 18 spares 2 (for long-term maintenance) Detail Breakdown: 18 horns with a 16' double ring Total height: 43' Total Width: 26' Total Depth: 20' Distance from ground to bottom tip of horns: 15'6" Weight: Each 12' longhorn weighs aprox 351bs Spacing of longhorns inside tunnel: 6 (a bit closer as they fly out) Distance from ceiling to bottom tip of longhorns ranges from 1 5' to 4.5' Color: Longhorns daytime: frosted white/ Night: All colors available Ring and support pipe: light medium gray Material: A robust UV -stable type of impact resistant acrylic used in the commercial sign industry Lighting: waterproof LED lighting will create patterns will shift so slowly, you will not see the color change. However when you come back to the sculpture you will see a different color and pattern. The system is designed for maintenance so that the LED strip can be easily replaced in 6-10 yrs. Hours of operation. We are expecting the lighting to turn on at dusk and off at dawn. There is no way LEDs would be visible for this sculpture in the daytime. Structure: 18" diam pipe 16' tall supports the 16' and 14' connected ring supports Attachment of the longhorns to the ring supports are done in a similar system to the hanging attachment in the tunnel Location: in median strip 37' from the railroad bndge 5707 29th Ave NE Seattle WA 98105 / dan «corsonart.com / 206-910-5669 Agreement with Corson Studios L L C for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 17 of 25 Agreement with Corson Studios, L.L.C. for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 18 of 25 Agreement with Corson Studios L.L.C. for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 19of25 "Flight" installation (to inspire redesign of "Vortex") Corson Studios LLC www.corsonart.com Hemphill / Lamar Flight" and "Vortex" Sculptures Executive Summery Total Longhorns: 42 + 8 spares (for long-term maintenance) Detail Breakdown: 22 12 w under bridge 5 8' w under bridge (where ceiling is lower at end) 4 12'w `flying out beyond S. end of bridge 8 spares to be kept in storage Weight: Each 12 longhorn weighs aprox 351bs Weight: Each 8 longhorn weighs aprox 23 Ibs Spacing of longhorns inside tunnel 6' (a bit closer as they fly out) Distance from ceiling to bottom tip of longhorns ranges from 1.5' to 4.5' Color daytime: frosted white/ Night All colors available Material: A robust UV -stable type of impact resistant acrylic used in the commercial sign industry Lighting: waterproof LED lighting will create patterns will shift so slowly. you will not see the color change. However when you come back to the tunnel you will see a different color and pattern. The system is designed for maintenance so that the LED strip can be easily replaced in 6-10 yrs. Hours of operation. we are expecting the lighting to turn on at dusk and off at dawn. Additional after installation tests will determine if we are able to turn on the lights earlier or run them during the day. If so, it can be run longer but maintenance will be more often (all dependent on lamp hours). This decision will be made between the City and the Arts Council. Structure: Custom beam clamp assembly connects the artwork to the existing bridge beams. This assembly will allow for tight fighting w/out drilling into beams. Beam clamps hold connecting pipes that run parallel to the roadway Custom steel brackets attached to connecting pipes suspend the longhorns and define the tilt. • Post construction survey will be done in order to verify as -built dimensions. Brackets will be fabricated afterwards to conform to the minimum clearance of 16'6" above roadway 5707 29`"' Ave NE Seattle WA 98105 / dan@corsonart.com / 206-910-5669 Agreement with Corson Studios L.L.C. for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 20 of 25 Agreement with Corson Studios, L.L.C. for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 21 of 25 Exhibit B: Site Hemphill Street Ci iAR- Lancaster to Vicke Agreement with Corson Studios, L.L.C. for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 22 of 25 EXHIBIT "C" - BUDGET FORT WORTH PUBLIC ART PROJECT BUDGET Please complete this form and attach a signed recelp* or estimate complete with per unit cods (no lump sums) tot ell items designated with an asterisk('). Cost in -Lases must also have a written estimate attached. ARTIST'S FEE (203.) TRAVEL (For artists who live more than '+) miles tram Fort Worth) INSURANCE ADMINISTRATIVE EXPENSES Del kery.: ShIpping (for Altiare Car Rental Par Diem Expenses at S_ per day Mileage at $_ per mite Autc:Hired Vehicle Liability General Liability for Artist; Sub:cnlractcis Worker's Comp. t Employer's Liability Other , as applicable PhcnwFa x samples, mci_ts, drawings etc) Repro graphic Service Supplies PROFESSIONAL CONSULTANT FEES (It applicable, drawing must be signori and sealed by a professicnal registered to piastre In the State of Texas) Architect' Shu:tural Engineer' Elect kal Engineer' Conservator' Photographer (for dx-umentation of optnpfeted walk)* Other' MATERIALS (Please attach a complete list of materials. Itemize ell anti: kated aspens and o.ntronents with per unit cost estimates) Materials' Total Cost Increases?: Projected Increase in Cost Material) 12 Mcnths In Future FABRICATION COSTS (In:lode and itemtze ell portbns cl subcontracted work and wank to be wmplefed ty artist.) Artist's Labor (__ hours at $ pet h ui) Total Sut:onheclelLatcn (Total) FacilitytEquipment Rental (used ercfusively for this project; related to fatri:at on Cost Increases?: Pta}ected Increase In Cost Fabrication 12 Months In Future SITE PREPARATION (Cu not inane costs covered by FWPA, City of Fort W ceth or r_.thets) Test Dtfiling' Remyval' Landscaping In )gal bn' Electrical Mcdificatbns' Agreement with Corson Studios, L L C for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 23 of 25 Cost Increase- Protected Inge TRANSPORTATION Water WoriaMechanical Devices rather Preparation 12 Months In Future Materials vi Fair tenon Sit?' Finished Wak to Installation Site' Other Cost Inaeas?s?: Projected Increase In Cost Transco 'Elation 12 Months In Future BASE MOUNTING Base Mounting Devices end Comp: vents Foundatbn'Fccting Other Ccst Increases'?: Projected Is se in Gist M untingFccting 12 Months In Future INSTALLATION COSTS s must Include allc'Nan:? for atter hiurs Installation, if appli:abie. Please attach a g.letelist ofe-Tdpmentand individual estimateswhhthis (orrn) LIGHTING Stk•:cntracted Lan.,' Scaffolding' Equj:.rnent R?anal related to Installed •n' Off,dtny PolioeSe•.utity' Traffic Barriers' Storage Facility Rental' City Permits Display Devi:es Firers' cdIng' Site Restoration' Oder n:reas?s?: Protected In.reas.:• in Gst Installation 12 Months In Future C•ost Inge Designers' Fixtures' Bulbs' She Preceiatlon' Insta llat CAM Projected In:tease in Cc4t Lighting 12 Months In Future GRAND TOTAL IIncludIng protected cost Increase, If any> Please male any necessary notes note: Prepared By: Date: Agreement with Corson Studios L L C for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 24 of 25 `EM't 0I•339 paw 'r: In.v.A.wet Exhibit D: Sales Tax Exemption Texas Sates and Use Tax Exemption Certification This certificate doos not require a number to be valid. Nome of purUsaser, rumor agency City of Fort Worth Address (Strocl d number, P.O. BoxorRouta number) 1000 Throckmorton street Cdy, slate, ZIP code Fort Worth, Texas 76102 Phone (Area code and number) 817.392.8325 t, the purchaser named above, claim an exemption from payment of sales and use taxes (for the purchase of taxable items described below or on the attached order or invoice) from: Seller All Vendors Street address: _ __ _ ___. _._ _City, State, ZIP code: Descripilon of Hems to be purchased or on the attached order or Invoice: All Items Purchaser claims This exemption for the following reason: Governmental Municipality t understand that I will be liable for payment of all state and local sales or use taxes which may become due for failure to comply with the provisions of the Tax Code andlor all applicable law. 1 understand Mantis e criminal offense to give an exemption certificate to the seller for taxable items that Iknow, at tho limo otpurchase, wilt bo used Inn mamreroth°, than that oxprossod in this certificate, and depending on the amount of tax evaded, the offense may range from a Class C misdemeanor to a felony of the second degree. Purche7vr sign here r C\`7f�'�p j_cAvv t r x" Tao Assistant Finance Director Ogle NOTE: This certificate cannot be Issued for the purchase, lease, or rental of a motor vehicle. THIS CERTIFICATE DOES NOT REQUIRE A NUMBER TO BE VAUD. Sates and Use Tax "Exemption Numbers" or "Tex 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. Agreement with Corson Studios L.L.C. for Preliminary Partial Redesign of Public Art for Hemphill -Lamar Connector Execution Copy 1/7/15 2/26/2014 25 of 25