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HomeMy WebLinkAboutContract 42995CITY SECRETARY CONTRACT NO. AGREEMENT BETWEEN THE CITY OF FORT WORTH AND TIERNEY MALONE FOR PRELIMINARY DESIGN OF PUBLIC ARTWORK This Agreement is entered into this aD*4"_day of MCrL1r\ , 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 Tierney Malone, an individual, of 1612 St. Charles Street, Houston, TX 77003. 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 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 the new Fire Station #42 (see attached design and site plan, Exhibit "A "), which will be located just north of Spinks Airport, a City - owned municipal airport in Council District 8; WHEREAS, Fire Station #42 was identified as a project that would benefit from the inclusion of public art, and the City of Fort Worth's Fire and Aviation Departments are allocating funds in their budget for final design, fabrication, and installation of public art at this site; WHEREAS, the Fort Worth Art Commission (the "FWAC ") has recommended the Project in its FY2012 Annual Work Plan and Budget (approved by City Council on December 6, 2011 as M &C C- 25337); OFFICIAL RECORD CITY SECRR{ETARY Agreement between the City of Fort Worth and Tierney Malone F�'aQ�f24' TX for Preliminary Design of Public Artwork WHEREAS. the FWAC has recommended that Artist. in coordination with Citv's Project Consultant, be retained for design of an artwork for the Site; and WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be designed. 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: below: ARTICLE 1 DEFINITIONS As used in this Agreement, the following terms shall have the meanings as set forth 1.1. Agreement — Means and includes this agreement between the City and Artist for Preliminary Design of Public Art for the Site. 1.2. Artist — Means and includes Tierney Malone and /or his heirs, executors, administrators, legal representatives, successors, agents, subartists, contractors, and assigns. 1.3. 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. 1.4. City — Means and includes the City of Fort Worth and its officers, representatives, agents, servants, and employees. 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. Parties — Means and includes City and Artist. Agreement between the City of Fort Worth and Tierney Malone Page 2 of 29 for Preliminary Design of Public Artwork 1.7. Preliminary Design Means all preliminary drawings, sketches, prototypes. maquettes, models, narrative descriptions, budget estimates, and the like that are created by Artist in connection with this Agreement and /or any prior agreement between Artist and City for the Work. 1.8. Preliminary Design 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. 1.9. Project — Means and includes the capital improvement /public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement. 1.10. 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. 1.11. Project Consultant — Means and includes the design firm /professional(s) hired by City to design the Site. 1.12. Site — Means and includes the new Fire Station #42, which shall be located just north of Spinks Airport, a City -owned municipal airport in Council District 8, along the extension of Stone Road, which is more particularly described in Exhibit "B," attached hereto and incorporated herein by reference for all purposes. 1.13. 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 1. General. a. Artist shall perform all services and will furnish all supplies and materials as necessary for developing the Preliminary Design of the Work. Services shall be performed in a Agreement between the City of Fort Worth and Tierney Malone Page 3 of 29 for Preliminary Design of Public Artwork 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 specific location at the Site where the Work will be installed shall be mutually agreed upon by City and Artist. 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 Design, Artist shall meet with and seek input from Project Stakeholders. f. Artist shall explore concepts for the Work, within the preliminary implementation budget set forth in Article 2.3. g. Artist shall meet and coordinate with Project Consultant 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 Design to Project Stakeholders, 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 maximum of two 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. Agreement between the City of Fort Worth and Tierney Malone Page 4 of 29 for Preliminary Design of Public Artwork Upon request by Artist. Cit,, shall promptly furnish all infiOrmation 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 Design Deliverables Within three 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 2.4 to City for approval. Preliminary Design Deliverables shall consist of the following: a. Two preliminary design 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; b. A narrative description of the Artist's concept, proposed materials, fabrication, and installation methods, timeline for completion and maintenance, and anticipated annual maintenance requirements; C. 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; d. A preliminary budget estimate, on the budget form attached hereto as Exhibit "C," for implementation of a final design of the Artwork in an amount not exceed EIGHTY -EIGHT THOUSAND FIVE HUNDRED EIGHTEEN DOLLARS AND NO CENTS ($88,518.00) 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). Material or fabrication samples and /or prototype models for the Work that show the size and placement of the Work in relation to the Site, as appropriate. Agreement between the City of Fort Worth and Tierney Malone Page 5 of 29 for Preliminary Design of Public Artwork 2.4. Preliminary Design Review a. Upon completion of the Preliminary Design Deliverables, Artist shall meet with the designated Project Stakeholders, City staff, and other City boards or commissions, as appropriate, to present the Preliminary Design, at a date and time mutually agreed upon, for input. b. Artist shall present the Preliminary Design to the FWAC for approval at a regularly scheduled FWAC meeting. C. City shall notify Artist of its approval, or disapproval, of the Preliminary Design within thirty (30) business days of Artist's presentation to the FWAC. d. If City disapproves of the Preliminary Design, either in whole or in part, then City shall inform Artist of each revision to be made to the Preliminary Design. City may require Artist to make such revisions to the Preliminary Design 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. e. Artist shall have thirty (30) calendar days from the date City informed Artist of the revision(s) to present the revised Preliminary Design in conformance with City's requirements. f. If City disapproves of the resubmitted Preliminary Design, any further Preliminary Design resubmissions will be by mutual agreement of the Parties and subject to the procedures and terms in this Article. If the Parties desire not to continue with the resubmission process, then this Agreement will automatically terminate, with payment for work performed per the payment schedule in Article 3 up through the date of termination. (See Article 4.4.d) g. Upon City approval of the Preliminary Design, any revisions made to a City- approved Preliminary Design shall become part of the Preliminary Design. Artist shall incorporate any City- approved revisions into the final design in conformance with City's requirements. Any Agreement between the City of Fort Worth and Tierney Malone Page 6 of 29 for Preliminary Design of Public Artwork revisions shall become part of any final design deli%erables if the Artist proceeds to the final design phase. Artist shall provide the Preliminary Design 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. h. Upon the expiration of the Term (hereinafter defined) of this Agreement, if the Preliminary Design is accepted by City and funding is appropriated by the Fort Worth City Council, negotiations for final design and /or fabrication, delivery, and installation of the Work shall commence, which shall become part of the deliverable under any potential artwork commission contract. AuTICT R Z COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation Total compensation to Artist under the Agreement shall be FIVE THOUSAND DOLLARS AND NO CENTS ($5,000.00), 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. Agreement between the City of Fort Worth and Tierney Malone Page 7 of 29 for Preliminary Design of Public Artwork 3?. 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. ONE THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($1,500.00) upon execution of this Agreement. b. ONE THOUSAND EIGHT HUNDRED TWENTY -FOUR DOLLARS AND NO CENTS ($1,824.00) within thirty (30) calendar days after Artist submits all of the Preliminary Design Deliverables required under Article 2.4 of this Agreement and makes a presentation(s) of the Preliminary Design to the FWAC. C. ONE THOUSAND SIX HUNDRED SEVENTY -SIX DOLLARS AND NO CENTS ($1,676.00) within thirty (30) calendar days after City's approval of the Preliminary Design. 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. 3.4. Artist's Expenses Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing /shipping charges and insurance on submissions to City, cost of all travel, and costs for Artist's agents, consultants, Agreement between the City of Fort Worth and Tierney Malone Page 8 of 29 for Preliminary Design of Public Artwork and /or employees necessary for the proper performance of the sere ices required under this Agreement. ARTICLE 4 TERM AND TERMINATION 4 1 Tarry, 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 Tierney Malone Page 9 of 29 for Preliminary Design of Public Artwork 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 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 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. d. If termination is by mutual agreement of the Parties as set forth in Article 2.4, then City shall pay Artist for work performed per the payment schedule in Article 3 up through the date of termination. City shall have the right to possession and transfer of all work product produced by 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 Agreement between the City of Fort Worth and Tierney Malone Page 10 of 29 for Preliminary Design of Public Artwork 4.5. Incapacit� of Artist a. In the event of Artist's death or Artist becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to death or incapacity. All 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 Design have been approved, in the event of termination under this Article 4.5, City shall have the right to complete the Work, if feasible. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. This provision shall survive the termination or expiration of this Agreement. Agreement between the City of Fort Worth and Tierney Malone Page 11 of 29 for Preliminary Design of Public Artwork ARTICLE 5 DISPUTE RESOLUTI 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 Tierney Malone Page 12 of 29 for Preliminary Design of Public Artwork Au I(Ar:f, OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1 General a. Upon payment in full to Artist, the Preliminary Design, Work, and all other work product under this Agreement shall become the property of City, without restriction on future use, except as provided below. Artist shall retain copyright and other intellectual property rights in and to the Preliminary Design and /or Work. By execution of this Agreement, Artist grants to the City a perpetual, irrevocable license to graphically depict or display the Preliminary Design and /or Work for any non - commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Preliminary Design and /or Work intended to promote or benefit City, its public services or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non - commercial purpose. b. City shall take title to all documents and /or drawings, which constitute or are components of the Preliminary Design and /or Work, upon final approval of the Preliminary Design. These documents and /or drawings will be retained for archival and exhibition purposes. C. Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Preliminary Design and /or Work, except as those rights are limited by this Agreement. City may make and disseminate photographs, drawings, and other two - dimensional reproductions of the Preliminary Design and /or Work and accompanying materials for any municipal purpose. All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: "© date, Artist's name." Agreement between the City of Fort Worth and Tierney Malone Page 13 of 29 for Preliminary Design of Public Artwork d. Nothing in this Agreement shall prevent the Artist from using images ofthe Preliminary Design and /or Work for marketing and promotional purposes in connection with the Artist's business; provided, however, that Artist shall make its best effort to credit City for commissioning the Work whenever possible substantially in the following form: "an original artwork commissioned by and in the collection of the City of Fort Worth, Texas." 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 Artist represents and warrants that: a. Preliminary Design and /or Work shall be the original product of the Artist's sole creative efforts. b. Preliminary Design and /or Work is and will be unique and original, and does not infringe upon any copyright or the rights of any person; C. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Preliminary Design and /or Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; d. Preliminary Design and /or Work (or duplicate thereof) have not been accepted for sale elsewhere; e. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and Agreement between the City of Fort Worth and Tierney Malone Page 14 of 29 for Preliminary Design of Public Artwork f All services pertormed 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 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 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 Agreement between the City of Fort Worth and Tierney Malone Page 15 of 29 for Preliminary Design of Public Artwork 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. 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 performance 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. 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 royalties that are due for the use of other third party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artist. Agreement between the City of Fort Worth and Tierney Malone Page 16 of 29 for Preliminary Design of Public Artwork 9.3. Survival All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. ARTICT F 10 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 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. Agreement between the City of Fort Worth and Tierney Malone Page 17 of 29 for Preliminary Design of Public Artwork 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. 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 -Party Beneficiaries The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights, contractual, or otherwise, to any other person or entity. 11.8 Severability If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. Agreement between the City of Fort Worth and Tierney Malone Page 18 of 29 for Preliminary Design of Public Artwork 1 1.9. Force M '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 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. Agreement between the City of Fort Worth and Tierney Malone Page 19 of 29 for Preliminary Design of Public Artwork I 1.1.3. Riglitto 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. Notwithstanding anything to the contrary herein, this Article shall survive expiration or earlier termination of this Agreement. 11.14 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. 11.15 Survival Provision The provisions contained in Articles 6 (Ownership and Intellectual Property Rights), 7 (Warranties of Title and Copyright), 8 (Artist as an Independent Contractor), and 9 (Indemnification) shall survive the termination or expiration of this Agreement. 11.16 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 Agreement between the City of Fort Worth and Tierney Malone Page 20 of 29 for Preliminary Design of Public Artwork 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. 11.17 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. 11.18. Time Extensions The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. Agreement between the City of Fort Worth and Tierney Malone Page 21 of 29 for Preliminary Design of Public Artwork THIS PAGE INTENTIONALLY LEFT BLANK Agreement between the City of Fort Worth and Tierney Malone Page 22 of 29 for Preliminary Design of Public Artwork ARTIUI F l) MOr11l■rMaLAM 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: 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 of Public Art Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, Texas 76107 2. ARTIST Tierney Malone 1612 St. Charles Street Houston, TX 77003 [SIGNATURES APPEAR ON THE FOLLOWING PAGE] Agreement between the City of Fort Worth and Tierney Malone Page 23 of 29 for Preliminary Design of Public Artwork VG /GO /LV I VU. JG rne% I IJ:JGO IGII UUr T.LU111 L&jVVCJVVL IN WITNESS HEREOF, the Parties hereto have executed this Agreement on the Effective Date. D IIiL$)_a cis &3C12TW by: Fernando Costa Assistant City Manager APPROVED AS TO FORM AND LEGALITY; Tyler F. Wallach Assistant City Attorney ATTESTED BY: Mary J. Kayser City Secretary Contract Authorization. No M&C Requited ARTIST %-- OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Agreement between the City of Fort Worth and Tierney Malone Page 24 of 29 for Preliminary Design of Public Artwork IN WITNESS HEREOF. the Parties hereto have executed this Agreement on the ['111ective Date. CITY OF FORT WORTH by:� Fernando Costa Assistant City Manager APPROVED AS TO FORM AND LEGALITY: Tyler allach Assis ant City Attorney ATTESTED BY: ARTIST Tierney Malone Individual v4 r - A �000ao o p p 0 � o a0 k0 �•1 o o o x x Mary J. Kays ✓ / v P� �,�` City Secretary Contract Authorization: No M &C Required 2 OFFICIAL RECORD CITY SECRETARY FT. WORTH; TX Agreement between the City of Fort Worth and Tierney Malone Page 24 of 29 for Preliminary Design of Public Artwork Exhibit A Continued: Fire Station 442 (At Spinks Airport) Site Agreement between the City of Fort Worth and Tierney Malone Page 26 of 29 for Preliminary Design of Public Artwork Exhibit C: Implementation Budget pi e,^i •a: ••� R�•�• <....� osw� �v- eeP�^a`t'TL N �!w��- 4^��!� w�en ha" a rift sarilnsRS attadled ARTISTS FEE (t S %) TRAVEL (For artists who live more than 50 miles from Fort Worth) Airfare Car Rental Per Diam Expenses at $ day Weage at $___ per mile INSURANCE Auto"red Vehicle Liability General Liability for Artist I Subcontractors Worker's Comp./ Employer's Liability Other, as applicable ADMINISTRATIVE EXPENSES Phone/Fax Delivery!Shipping (for correspondence, samples, models, drawings etc) Reprographic Service Copyright Registration Supplies PROFESSIONAL CONSULTANT FEES of applicable: Jawing must be signed and sealed by a professional registered to practice in the State of Texas) Architect' Structural Engineer- Electrical Enginaer' CiOnservator' Photographer (for documentation of completed work)' Other' MATERIALS (Please attach a complete list of materials. Itemize all anticipated aspects and components with per unit cost estimates) Materials' Total Cast Increases: Projected Increase in Cost Mater ais 12 Months In Future FABRICATION COSTS (Include and itemize all portions of subcontracted work and work to be competed by artist,) Artist's Labor (_ hours at $_ per hour) Total Subcontracted Labor' (Total) Facility/Equipment Rental (used exclusively for this project) related to fabrication Cost Increases: Projected Increase in Cost Fabrication 12 Months In Future SITE PREPARATION (Do not include costs covered by FW PA.. City of Fort Worth or others) Test Drilling' Removal' Landscaping9nigation' Agreement between the City of Fort Worth and Tierney Malone Page 27 of 29 for Preliminary Design of Public Artwork Electrical Modifications' Water WorklMechanical Devices Other' Cost Increases Projected Increase In Cost Site Preparation 12 Months In FLrture TRANSPORTATION Materials to Fabrication Site' Finished Work to Installation Site' Otlter' Cost Increases? Projected Increase in Cost Transportation 12 Months In Future BASE/MOUNTING Base Mounting Devices and Components FoundatlonlFooting Other Cost Increases: Projected Increase in Cost MountingfFooting 12 Months In Future INSTALLATION COSTS (Costs must include allowance for after hours installation, if applicable. Please attach a complete list of equipment and Individual estimates with this form) Subcontracted Labor' Scaffolding' Equipment Rental related to installation" Off -duty Police/Security' Traffic Barriers' Storage Facility Rental' City Permits Display Devices Fireproofing' Site Restoration' Otlter' Cost Increases. Projected Increase in Cost Installation 12 Months In Future LIGHTING Designers' Fixtures' Bulbs' Site Preparation` Installation' Cost Increases: Projected Increase in Cost Lighting 12 Months In Future GRAND TOTAL (including projected cost Increase, If any) Please make any necessary notes here: Prepared By: Date: Agreement between the City of Fort Worth and Tierney Malone Page 28 of 29 for Preliminary Design of Public Artwork Exhibit D: Sales Tax Exemption TEXAS CERTIFICATE OF EXEMKFION I claim an exemption frool payment of sales and w9c taxv. tut the purchwse of taxable itous dcscribtxJ or on the attached order or invoice, Description of Items (or an attached order r-yr Invoice) To Be Purchasetl: I cWrn this exemption Rw the f6flowing rmkw Name of Exempt Orpnization- CITY OF FORT WORTIL TEXAS TEXAS SALES AND USE TAX PERMIT NUMBER 11-7.554000528-6 Project for which matenals aro supplies are purchased: I understand that I will be liable fi)r payment of sales tax. which may become due for failure to comply with the provi %ions of the state, city, andior metropolitan transit authority =14rs and use t&v laws and CxAtiptrollcr rules re gaming exempt purchases. Liability for the tax will be determined by the price, paid fix the taxable item purchawd or the fair market rental value 14 the period of time used- I understand that it is a mWaneartor to give an exemption certificate to the sellrT fair taxable items which I know, at the time of the purchase, will be used in a mariner other than that expcn ed in this certificate and, upon conviction. mkv be fined up to 3500 per offrnw. Purchaser CITY OF FORT WORTH, TEXAS Street Address: 1000 THROCKMORTON STREET City, state, Zile cu4c: Vole [a TEXAS 76102 Sign Here, Date: Junell,2009 Phcnie� 811-392-951- '' L / — __ , Phis certificate does" require, a numhcTto be valid, Sales and use tax "exernp(jon nunihm"or exempi" numbers do trot exist, This ecrfificate should be furnished to the supplier Do not send the co, inplet"I ""ificatv to the, Coimptroller of Publie, Accounts, Agreement between the City of Fort Worth and Tierney Malone Page 29 of 29 for Preliminary Design of Public Artwork