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HomeMy WebLinkAboutContract 45753 (2)CITY SECRETARY cotnMcr rio. LIS`I13 AGREEMENT BETWEEN THE CITY OF FORT WORTH AND ERIC ELEY STUDIO, LLC FOR FINAL DESIGN OF PUBLIC ART FOR ROSEN PARK This Agreement is entered into this of Vl 2014 and between the g bday by City of Fort Worth, a home -rule municipal corporation of the State tf Texas, acting by and through its duly authorized Assistant City Manager, and Eric Eley Studio, LLC, acting by and through it duly authorized member Eric Eley. 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 Prograrn'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 Fort Worth Public Art Program is implementing a community -nominated public art initiative known as "Community ID: Public Art in Neighborhoods" ("CID") per the recommendations and guidelines in the Long -Range Public Art Plan for the Water Fund (adopted by the City Council on May 9, 2006), and as set forth in the Fort Worth Public Art Master Plan (adopted by City Council in 2003); WHEREAS, public art funds for the Project have been allocated from the Public Art Fund, and the Project was included in the Fiscal Year 2014 Annual Work Plan and Budget, adopted by the Fort Worth City Council on November 12, 2013 (M&C C-26557) as part of the City's agreement with the Contract Manager for administration of the public art program; WHEREAS, on June 13, 2011, the Fort Worth Art Commission ("FWAC") approved a review panel's recommendation to award a CID project to the North Beverly Hills Neighborhood Association at its nominated site, Rosen Park, which is located at 2300 McCandless Street, Fort Worth, Texas 76106; WHEREAS, Eric Eley was selected through a proposal process outlined in the Fort Worth Public Art Master Plan and conducted by the Contract Manager with oversight of the FWAC; WHEREAS, on March 17, 2014, the FWAC recommended that Eric Eley be retained to develop a Final Design based upon the Preliminary Design of public artwork to be incorporated into the Site; and 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. Agreement for Final Design Public Artwork with Eric Eley Studio, LLC FF6cuAL RECIR currry SECRETARY F .NORTH, TX 1 of 20 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 and Eric Eley for Final Design and Commission of public art for the Site. 1.2. Artist — Means and includes Eric Eley Studio, LLC. 1.3. Artwork Design — Means and includes both the Preliminary Design and Final Design of the Work, which are defined in 1.3.a. and 1.3.b. below. 1.3.a. Preliminary Design — Means all preliminary drawings, sketches, prototypes, maquettes, models, narrative descriptions, budget estimates, and the like that were created by Eric Eley in connection with Fort Worth City Secretary Contract No. 44698 between Eric Eley and City for the Work, including, but not limited to, the design concept attached hereto as Exhibit ' A" and incorporated herein for all purposes. 1.3.b. Final Design — Means the Artist's final proposed design of the Work 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 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. 1.4. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant County, Inc., and/or its officers, directors, and employees. 1.5. City — Means and includes the City of Fort Worth, Texas. 1.6. Community Group — Means and includes the North Beverly Hills Neighborhood Association and its representatives. 1.7. Effective Date — Means and includes the date represented in the first paragraph of this Agreement, which shall be the official date of execution of this Agreement. 1.8. Final Design Deliverables — Means and includes those items set forth in Article 2.4 of this Agreement that Artist is required to submit to City for its review. 1.9 Parties — Means and includes City and Artist. 1.10. 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. Agreement for Final Design Public Artwork with Eric Eley Studio, LLC 2 of 20 1.11. Site — Means and includes Rosen Park located at 2200 McCandless Street, in Fort Worth, Texas, which is more particularly described on Exhibit "B," attached hereto and incorporated herein by reference for all purposes. 1.12. 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 SCOPF OF SERVICES AND DELIVERABLES 2.1. Artist Selection. City and Artist acknowledge that Artist's Preliminary Design was reviewed and approved by the FWAC on March 17, 2014, and is the basis for executing this Agreement with Artist. 2.2. Scone of Services. a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary for developing a Final Design of the Work and for providing the Final Design Deliverables. Services shall be performed in a professional manner and in strict compliance with all terns 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 acceptance by City as set forth in this Agreement. c. Artist shall develop a Final Design that incorporates all six elements of the Preliminary Design with the understanding that funding restrictions may cause a reduction in the total number of elements to be commissioned by the City. d. The location at the Site in which the Work shall be installed shall be mutually agreed upon by City and Artist. e. Artist, upon request of Contract Manager, shall attend ineetings with appropriate City staff' for purposes of risk assessment, safety review, sighting of the work, and permitting. f. Artist shall meet and coordinate with the Director of the City's Parks and Community Services Department or that person's designee ( `Director") for proper integration of the Work into the Site and into any construction documents, as applicable. g. Upon request of City, Artist shall consult with a qualified art conservator and shall provide written maintenance recommendations for the Work from said conservator to the Contract Manager. h. Artist shall present the Final Design to the appropriate City committee City staff, Community Group and other City boards or commissions as appropriate, for input and to the FWAC for approval at dates and times mutually agreed upon. 2.3 City Assistance. Agreement for Final Design Public Artwork with Eric Eley Studio, LIC 3 of 20 Upon request by Artist, City shall promptly furnish all inforrnation 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. 2.4. Final Design 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 2.4 to City for approval. Final Design Deliverables shall consist of the following: i. Detailed design illustrations of the Work for the Site, in a high resolution digital format, such as JPEG or TIF files, showing the proposed Work from two vantage points with at least one illustration showing the Work's size and placement in relation to the Site. ii. A final written narrative of Work, describing the following: (1) the Final Design concepts and timeline for completion; (2) proposed materials, fabrication, and installation methods for all elements of the Work, including infortnation regarding Artist's subcontractor(s), if any, for the Work; (3) maintenance requirements for all elements of the Work as dictated by Artist, along with cost estimates for annual maintenance; and (4) proposed public education program or activity to be conducted by Artist at a time mutually agreed upon by Parties. iii. Comprehensive working drawings, detailing the means of installing all elements of Work on the Site, together with other such graphic material to permit City to carry out structural design review. Professional Liability Insurance is required in all circumstances for on -site artwork requiring engineering and/or architectural services. City will conduct a review of structural design and other related graphic material prior to installation of the Work. Upon City's request, drawings must be signed and stamped by an engineer and/or architect licensed to work in the State of Texas. Artist will provide the Contract Manager a certificate of insurance for each licensed professional and provide City with a 30-day notice of cancellation of any policy required hereunder. iv. A detailed budget, on the budget form attached hereto as Exhibit "C", for installation of all elements of the Work as set forth in the Preliminary Design and a separate budget for installation of four elements of the Work. The budgets should include all costs for materials labor fabrication, delivery, installation, insurance, transportation, remaining Artist's fee, and all other associated costs with the Work.The detailed budgets will be for implementation of the Work through a possible artwork commission contract with City, which contract may be subject to the approval of the Fort Worth City Council. 2.5. Final Design Review. Agreement for Final Design Public Artwork with Eric Eley Studio, LLC 4 of 20 a. Upon completion of the Final Design Deliverables, Artist shall present the Final Design to the FWAC for input at a regularly scheduled FWAC meeting. b. After presentation to the FWAC, Artist shall meet with the designated Community Group, City staff, and other City boards or commissions, as appropriate, to present the Final Design, at a date and time mutually agreed upon, for input. c. Artist shall then present the Final Design to the FWAC for approval at a regularly schedule FWAC meeting. d. City shall notify Artist of its approval, or disapproval, of the Final Design within thirty (30) business days of Artists presentation to the FWAC. e. If City requires any revisions to the Final Design, then City shall inform Artist of each. City may require Artist to make such revisions to the Final 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. £ Artist shall have thirty (30) calendar days from the date City infortned Artist of the revision(s) to present the revised Fugal Design in conformance with City's requirements. If City disapproves of the resubmitted Final Design, any further Final Design resubmissions will be by mutual agreement of the Parties and subject to the procedures and terms in this Article. If the Parties desire not to continue with the resubmission process, then this Agreement 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 Final Design, any revisions made to a City -approved Final Design shall become part of the Final Design. Artist shall incorporate any City -approved revisions into the final design in conformance with City's requirements. Artist shall provide the Final Design presentation materials to the Contract Manager to become part of the City's Public Art archive. These documents, models, and/or drawings will be retained for archival and exhibition purposes. Upon the expiration of the Term (hereinafter defined) of this Agreement, if the Final Design is accepted by City and funding is appropriated by the Fort Worth City Council negotiations for fabrication, delivery, and installation of the Work shall commence, which shall become part of the deliverable under any anticipated artwork commission contract. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE g. 3.1. Compensation. Total compensation to Artist under the Agreement shall be in an not to exceed TWO THOUSAND Agreement for Final Design Public Artwork with Eric Eley Studio, LLC 5 of 20 SEVEN HUNDRED FIFTY DOLLARS AND NO CENTS ($2.750.00), which shall constitute full compensation for any and all costs associated with this Agreement, including, but not limited to, engineering and consulting fees, 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 HUNDRED SEVENTY-FIVE DOLLARS AND NO CENTS ($375.00) upon execution of this Agreement. ii. FIVE HUNDRED DOLLARS AND NO CENTS ($500.00) within thirty (30) days after Artist submits Final Design Deliverables, as required in Article 2.4. of this Agreement, and makes a presentation of the Final Design to FWAC. iii. THREE HUNDRED SEVENTY-FIVE DOLLARS AND NO CENTS ($375.00) within thirty (30) calendar days after City's approval of the Final Design. iv. City may pay Artist up to ONE THOUSAND FIVE DOLLARS AND NO CENTS ($1,500.00) for engineering and consulting fees in order to fulfill the terms of this Agreement. Such payment shall be made upon receipt of an invoice from Artist with the original invoice (a retainer fee of up to 50% is allowed) for such services attached thereto. 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," attached hereto and made apart hereof for all purposes 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 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. Tenn 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. Agreement for Final Design Public Artwork with Eric Eley Studio, LLC 6 of 20 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 terns 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 terininate 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. 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 ternninatron 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 2.5, then City shall pay Artist per the payment schedule in Article 3 up through the date of termination. City shall have Agreement for Final Design Public Artwork with Eric Eley Studio, LLC 7 of 20 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 becoines incapable, legally or otherwise, of performing its duties and/or obligations under this Agreement, City shall have the right to terininate 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 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. 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 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 Agreement for Final Design Public Artwork with Eric Eley Studio, LLC 8 of 20 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 or 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 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 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/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 Agreement for Final Design Public Artwork with Eric Eley Studio, LLC 9 of 20 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 or Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement. iv. Artwork Design and Work (or duplicate thereof) have not been accepted for sale elsewhere. v. Artist has the full power to entei into and perforrn this Agreement and to make the grant of rights contained in this Agreement. 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 Agreement for Final Design Public Artwork with Eric Eley Studio, LLC 10 of 20 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 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 pennission 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 for Final Design Public Artwork with Eric Eley Studio, LLC 1 1 of 20 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. ARTICLE 11 MISCELLANEOUS 11.1. Compliance Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the perfortance 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 terns 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 terns, 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 tight 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 Agreement For Final Design Public Artwork with Eric Eley Studio, LLC 12 of 20 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. 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. Agreement for Final Design Public Artwork with Eric Eley Studio, LLC 13 of20 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 detennine compliance with this Agreement. Throughout the Tenn 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 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 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. 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 Fxtensions 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 pennitted 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 Agreement for Final Design Public Artwork with Eric Eley Studio, LLC 14 of 20 Copies to: 2. ARTIST City Attorney Office of the City Attorney City of Fort Worth 1000 Throckmorton Street, Third Floor Fort Worth, Texas 76102 Martha Peters, Vice President, Public Art Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, Texas 76107 Eric Eley Studio, LLC Attn: Eric Eley 631 N Winnetka Avenue Dallas, Texas 75208 IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective as of the Effective Date. CITY OF FORT WORTH by: -,100ese-4•Z Fernando Costa Assistant City Manager APPROVED AS TO FORM AND LEGALITY: Ty' lei-• F: Assistant y Attorney /1 ATTESTED Mary J. Kay City Secrek. y Y• Contract Authorization: No M&C Required ERIC ELEY STUDIO, LLC by:( ric R[ey Member VIANAPT, „2 ECORD Cp �T Yi SECRETARY 1 /J U Wfl RT C-1 n J Agreement for Final Design Public Artwork with Eric Eley Studio, LLC oft° Exhibit A: The Preliminary Design The proposed piece, comprised of two distinct sculptural seating compositions with orbiting seating islands, is situated in Rosen Park under the canopy of two of its large shade trees. Taking into account the parks function as the central recreational space for the surrounding community and its continuing growth, the artwork establishes focal points for gathering and interaction. Inspired by the community in which it sits, the work is a functional sculpture constructed from exploded interpretations of the Golden Section. The Golden Section is a mathematical proportion that generates a shape that can be infinitely added to or subtracted from, never losing its core relationship. Comprised of multiple unique seating and table elements framed on defined footprints, each stands as a bright geometric composition on the landscape beckoning visitors off of the footpath. when occupied, the central elements become vibrant communal tables where neighbors can share time, chat, watch soccer games, and share meals. The orbiting islands offer more intimate seating for reading a book or conversing with a friend. .i Agreement for Final Design Public Artwork with Eric Eley Studio, LLC 16 o f 20 Exhibit B: The Site Rosen Park, 2300 McCandless Street, Fort Worth, TX 76106 Agreement for Final Design Public Artwork with Eric Eley Studio, LLC 17 of 20 Exhibit C: Budget Forin 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 (20%) TRAVEL (For artists who live more than 50 miles from Fort Worth) Airfare Car Rental Per Diem Expenses at $_ per day Mileage at $ per mile INSURANCE Auto/Hired Vehicle Liability General Liability for Artist / Subcontractors Workers Comp. / Employers 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 State 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 FR'PA. City of Fort Worth or others) Test Drilling' Removal' Landscaping/Irrigation' Electrical Modifications' Water Work/Mechanical Devices Other' (Revised May 2011) Agreement for Final Design Public Artwork with Eric Eley Studio, LLC 18 of 20 TRANSPORTATION BASEIMOUNTING Materials to Fabrication Site' Finished Work to Installation Site' Otter' Base Mounting Devices and Components Foundation/Footing Other INSTALLATION COSTS (Costs must include allowance for after hours installation. it applicable. Please attach a complete list of equipment and individual estimates wth this form) Subcontracted Labor' Scaffolding' Equipment Rental related to installation' Off -duty Police/Security' Traffic Barriers' Storage Facility Rental' City Pemiits Display Devices Fireproofing' Site Restoration' Other' LIGHTING GRAND TOTAL Please make any necessary notes here: Prepared By: Date: Designers" Fixtures' Bulbs' Site Preparation' Installation' (Revised May 20f t) Agreement for Final Design Public Artwork with Eric Eley Studio, LLC 19 of20 Exhibit D: Sales Tax Exemption TCXAcATE OE EXEMPTION claim an exemption from payment of sules and use taxes fot the purchase of t(lxnerns dcscrihed Iselow OF on the attached order or invoice. Description of Item attached order or 1nvuicc) Ti. Be Putehaied: I claim this exemption Ibr the following, reason: Name of Exempt Organization: CITY OF FORT WVORTII,TEXAS TEXAS SALES AND USE TAX PI'!RM(T NUMBER 1-7S-6000528-6 Frijet:t fur which nlatenals and satpphcs arc purchased: t untie land that I will be liable for payment ot`salus tux, which may become due for tailure io comply with the provisions of the state. city, andior metropolitan transit authority sales and use tax laws and comptroller rules regarding exempt purchases. Liability for the lax will he determined by the price paid li='r the taxahlc items purchased or the fair market rental value till the 1wtitul of time used- 1 understand that it is a misdemeanor to give an exemption certificate io the seller for taxable items which know. at the time of the purchase, will be used in u tnunncr other than that expensed in this cetditivatc and, upon conviction. may he fined up to 5500 per offense. Tax Fxenst Stutus Due to Beige a Govenuncntat Entity Purchaser: CITY OF FONT WORTIIi, TEXAS St-,cet Address: 1000T1IROCKM(IRTON STREET 'ity, State 2tp Code: FORT WORTH.. TEXAS 76102 Sien Hen. I"in;r��+ai \.ittuactnncjt ken iC1. 1; nrim this ttrlttit._,116 doss not /village il rium 1CT to lay \'Mid. exempt' numbers do not exist. Date: June I d, 2001/ Phone: 8I es an use tax Ibis ccriitieatc shmild he furnished to the supplit_t Do tun send Comptroller of Public Accounts. Cell porn numbers. Ur • complcic t reititic;attr tit the t) 1- Agreement for Final Design public Artwork with Eric Eley Studio, LLC 20 of 20