Loading...
HomeMy WebLinkAboutContract 46384CITY SECRET q(1 5Yq AGREEMENT BETWEEN THE CITY OF FORT WORTH AND CHRISTOPHER BLAY FOR PRELIMINARY DESIGN OF PUBLIC ART FOR EAST ROSEDALE STREET (I-35 - HWY287) This Agreement is entered into thiay of 2015, by and between the City of Fort Worth, a home -rule municipal corporation of t 1 State of Texas, acting by and through its duly authorized Assistant City Manager, and Christopher Blay, an individual residing at 1115 Hawthorne Avenue, Fort Worth, Texas, 76110. 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, the City of Fort Worth is designing and constructing improvements on East Rosedale Street from Interstate 3 5 W to Highway 287; WHEREAS, the 2004 Capital Improvement Program includes funds for improvements on East Rosedale Street from I35W to US 287; WHEREAS, funding for a public art project at the Site was included in the Public Art Plan for the 2004 Capital Improvement Program, adopted by the Fort Worth City Council on May 17, 2005 (M&C G-14801); WHEREAS, the Project was included in the Fiscal Year 2015 Annual Work Plan and Budget, adopted by the Fort Worth City Council on October 14, 2014, (M&C C-27031) as part of the City's agreement with the Contract Manager for administration of the public art program; WHEREAS, Artist was selected through a competitive process conducted by the Contract Manager and overseen by the Fort Worth Art Commission ("FWAC") to design artwork for the Site; 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: [-OFFICIAL RECORC (1-1,1177 777:RETARY TX Agreement with Christopher Blay for Pre Execution Copy 1 /8/ 15 RECEIVED JANR9PM Design of Public Art for East Rosedale Street 1 of 19 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 Christopher Blay for Preliminary Design of public art for the Site. 1.2. Artist — Means and includes Christopher Blay. 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. Parties — Means and includes City and Artist. 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 or public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement. 1.10. Project Consultant — Means and includes the design firm hired by the City to design the Site. 1.11. Project Stakeholders — Means and includes the appropriate Fort Worth City Council Member and that person's appointed community representatives and the Fort Worth Art Commission's appointed representative and others as may be appropriate. 1.12. Site — Means and includes East Rosedale Street from Interstate 35W to Highway 287 in Fort Worth, Texas 76104, which is more particularly described in Exhibit "A," 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 AND DELIVERABLES 2.1. Scone of Services. a. Artist shall perform all services and will furnish all supplies materials, and equipment as necessary for developing a Preliminary Design of the Work and for providing the Preliminary Agreement with Christopher Blay for Preliminary Design of Public Art for East Rosedale Street 2 of 19 Execution Copy 1/8/15 Design 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. Prior to commencing the Preliminary Design, Artist shall meet with and seek input from Project Stakeholders and community members at a minimum of two meetings. d. The location at the Site where the Work shall be installed shall be mutually agreed upon by City and Artist. e. 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. f. Artist shall explore concepts for the Work, within the preliminary implementation budget set forth in Article 2.3. Artist shall explore the feasibility of working with local youth and community members in development and possible implementation of the Work. h. Artist shall meet and coordinate with City staff 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. i. Artist shall present the Preliminary Design to Project Stakeholders and the appropriate City staff at dates and times mutually agreed upon and other City boards or commissions, as appropriate, for input and to the FWAC for review and subsequent approval determination at regularly scheduled meetings. 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 Design Deliverables. a. Within six (6) 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 Design Deliverables shall consist of the following: i. 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 such as JPEG or TIF files. Agreement with Christopher Blay for Preliminary Design of Public Art for East Rosedale Street 3 of 19 Execution Copy 1/8/15 ii. A narrative description of the preferred site(s), as well as Artist's concept, proposed materials, fabrication, and installation methods, timeline for completion and maintenance, and anticipated annual maintenance requirements. iii. A preliminary budget estimate, on the budget form attached hereto as Exhibit "B," for final design and implementation of the Work in an amount not exceed $152,589.00, 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, engineering and lighting. iv. 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. v. A narrative describing how Artist proposes to work with local youth and community during future phases of the project. 2.4. Preliminary Design Review. a. Upon completion and submission of the Preliminary Design Deliverables and acceptance by Contract Manager, Artist shall present the Preliminary Design to the FWAC for review and input at a regularly scheduled FWAC meeting. b. After presenting to the FWAC for initial input, 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. c. Artist shall then present the Preliminary Design to the FWAC for approval at a regularly scheduled FWAC meeting. d. City shall notify Artist of its approval, or disapproval, of the Preliminary Design within thirty (30) business days of the FWAC's determination. e. If City requires any revisions to the Preliminary Design, then City shall inform Artist of each revision. 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. f. 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. g. 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 with Christopher Blay for Preliminary Design of Public Art for East Rosedale Street 4 of 19 Execution Copy 1/8/15 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) h. 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 revisions shall become part of any final design deliverables 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. 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 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. Comnensation. Total compensation to Artist under the Agreement shall be TEN THOUSAND DOLLARS AND NO CENTS ($10,000.00), which shall constitute full compensation for any and all costs associated with the Agreement, including 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) upon execution of this Agreement. ii. TWO THOUSAND, FIVE HUNDRED DOLLARS AND NO CENTS ($2,500.001 after Artists make a presentation(s) of the Preliminary Design to the FWAC and members of the community for feedback and input. iii. THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) within thirty (30) calendar days after Artist submits all of the Preliminary Design Deliverables required under Article 2.3 of this Agreement and makes a presentation(s) of the Preliminary Design to the FWAC for approval. Agreement with Christopher Blay for Preliminary Design of Public Art for East Rosedale Street 5 of 19 Execution Copy 1/8/15 iv. ONE THOUSAND. FIVE HUNDREDDOLLARS AND NO CENTS ($1.500.00) 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 ' C' 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 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 termination. Agreement with Christopher Blay for Preliminary Design of Public Art for East Rosedale Street 6 of 19 Execution Copy 1/8/15 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, 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 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. ARTICLE 5 DISPUTE RESOLUTION a. 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 Agreement with Christopher Blay for Preliminary Design of Public Art for East Rosedale Street 7 of 19 Execution Copy 1/8/15 resolve these issues through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach, or other matter in question that may arise out of or in connection with this Agreement. b. If the Parties fail to resolve the dispute within sixty (60) calendar days of the date of receipt of the notice of the dispute, then the Parties shall submit the matter to mediation in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code, then in effect. Request for mediation shall be in writing, and shall request that the mediation commence not less than fifteen (15) or more than forty-five (45) calendar days following the date of request, except upon Agreement of the Parties In the event City and Artists are unable to agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty (30) calendar days following the date of the request for mediation, then all the conditions precedent in this article shall be deemed to have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No provision of this agreement shall waive any immunity or defense No provision of this Agreement constitutes consent to sue. If the Parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. (See Article 4.3) ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS, 6.1 General. a. Upon payment in full to Artist or pursuant to the applicable termination provision of this Agreement, the Artwork Design, Work, and all other work product under this Agreement shall become the property of City, without restriction on future use, except as provided below. Artist shall retain copyright and other intellectual property rights in and to the Artwork Design 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 Artwork Design and Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Design and Work intended to promote or benefit City, its Agreement with Christopher Blay for Preliminary Design of Public Art for East Rosedale Street 8 of 19 Execution Copy 1/8/15 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 Artwork Design and the Work be unique, Artist shall not make any additional exact duplicate reproductions of the Artwork Design 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 Artwork Design and Work, except as those rights are limited by this Agreement. City may make and disseminate photographs, drawings, and other two-dimensional reproductions of the Artwork Design 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: "© date, Artist's name. ' d. Nothing in this Agreement shall prevent the Artist from using images of the Artwork Design and 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. Artwork Design and Work shall be the original product of the Artist's sole creative efforts. ii. Artwork Design and Work are and will be unique and original, and do not infringe upon any copyright or the rights of any person; iii. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork Design and Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement, Agreement with Christopher Blay for Preliminary Design of Public Art for East Rosedale Street 9 of 19 Execution Copy 1/8/15 iv. Artwork Design and Work (or duplicate thereof) have not been accepted for sale elsewhere; v. Artist has the full power to enter into and perfoun 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 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 THE ACTS, ERRORS, OR OMMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTISTS AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN Agreement with Christopher Blay for Preliminary Design of Public Art for East Rosedale Street 10 of 19 Execution Copy 1/8/15 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 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 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. Agreement with Christopher Blay for Preliminary Design of Public Art for East Rosedale Street 11 of 19 Execution Copy 1/8/15 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. 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. Agreement with Christopher Blay for Preliminary Design of Public Art for East Rosedale Street 12 of 19 Execution Copy 1/8/15 11.8. Severability. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. 11.9. Force Maieure 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. 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 Agreement with Christopher Blay for Preliminary Design of Public Art for East Rosedale Street 13 of 19 Execution Copy 1/8/15 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. ARTICLE 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 mail, return receipt requested, postage prepaid, as follows: 1. CITY OF FORT WORTH: Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street, Third Floor Fort Worth, Texas 76102 Copies to: City Attorney Office of the City Attorney City of Fort Worth 1000 Throckmorton Street, Third Floor Fort Worth, Texas 76102 Agreement with Christopher Blay for Preliminary Design of Public Art for East Rosedale Street 14 of 19 Execution Copy 1/8/15 2. ARTIST Martha Peters, . Vice .President of Public Art Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, Texas 76107 Christopher Blay 1115 Hawthorne Avenue Fort Worth, TX 76110 IN WITNESS HEREOF, the Parties hereto have executed this Agreement as of the Effective Date. CITY OF FORT WORTH by: ��fl Fernando Costa Assistant City Manager APPROVED AS TO FORM AND LEG • - ITY: Jessica San :.s ' ang Assistant City Attorney ATTESTED BY: 1 Mary J. Kaye v City Secretary Contract Authorization: M&C -- No M&C Required 11, CHRISTOPHER BLAY OFflcIA Ming SECRETP4777 -' lib II* J Agreement with Christopher Blay for Preliminary Design of Public Art for East Rosedale Street Execution Copy 1/8/15 15of19 Exhibit A: Site Agreement with Christopher Blay for Preliminary Design of Public Art for East Rosedale Street 16 of 19 Execution Copy 1/8/15 Exhibit B: Budget Form FORT WORTH PUBLIC ART PROJECT BUDGET Please complete this form and attach a signed receipt or estimate complete with per unit costs (no lump sums) for all items designated with an asterisk(°). Cost increases must also have a written estimate attached. ARTIST'S FEE TRAVEL (For artists who live more than 50 miles from Fort Worth) Airfare Car Rental Per Diem Expenses at $ per clay Mileage at $_ per mile INSURANCE Auto/Hired Vehicle Liability General Liability for Artist / Subcontractors Worker's Comp. / Employer's Liability Other, as applicable ADMINISTRATIVE EXPENSES Phone/Fax Delivery/Shipping (for correspondence, samples, models, drawings etc) Reprographic Service Supplies PROFESSIONAL CONSULTANT FEES (If applicable, drawing must be signed and sealed by a professional registered to practice in the Slate of Texas) Architect' Structural Engineer* Electrical Engineer' Conservator* 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 FABRICATION COSTS (Include and itemize all portions of subcontracted work and work to be completed by artist.) Artist's Labor ( hours at $ , per hour) Total Subcontracted Labor (Total) Facility/Equipment Rental (used exclusively for this project) related to fabrication SITE PREPARATION (Do not include costs covered by FWPA, City of Fort Worth or others) Test Drilling" Removal' Landscaping/I rrigation* Electrical Modifications' Wafer Work/Mechanical Devices Other' (Revised May 2011) Agreement with Christopher Blay for Preliminary Design of Public Art for East Rosedale Street 17 of 19 Execution Copy 1/8/15 Exhibit C: Sales Tax Exemption Dress (Ban) '4 ,"—a„^ (Rev.4.1318) Texas Sales and Use Tax Exemption Certification This certificate does not require a number to be valid. Name of purchaser, firm or agency City of Fort Worth Address (Street & number, P.O. Box or Route number) 1000 Throckmorton street City, Slate, ZIP code Fort Worth, Texas 76102 Phone (Area code and number) 817-392-8325 I, 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 cor+" Description of items to be purchased or on the attached order or invoice: All Items Purchaser claims this exemption for the following reason: Governmental Municipality 1 understand that I will be Ilable 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 and/or all applicable law. ! understand that it is a criminal offense to give an exemptlon certificate to the sellerfortaxabie Items that 1 know, at the time of purchase, will he used bra manner other than that expressed in this certificate, and depending on the amount of fax evaded, the offense may range from a Class C misdemeanor to a felony of the second degree. Purchaser signrr rue Assistant Finance Director Date 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 VALID. Sales and Use Tax "Exemption Numbers" or "Tax Exempt" Numbers do not exist. This certificate should be furnished to the supplier Do agmt send the completed certificate to the Comptroller of Public Accounts. 2/26/2014 Agreement with Christopher Blay for Preliminary Design of Public Art for East Rosedale Street 19 of 19 Execution Copy 1/8/15