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Contract 45461 (2)
CITY SECRETARY CONTRACT NO._'-1541,1 AGREEMENT BETWEEN THE CITY OF FORT WORTH AND J TM HIRSCHFIELD AND SONYA ISHII, LLC FOR PRELIMINARY DESIGN OF PUBLIC ART FOR EAST ROSEDALE ROUNDABOUT (HWY 287-MILLER) This Agreement is entered into this n day of /'T4( , 2014, by and between the City of Fort Worth, a home -rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager, and Jim Hirschfield and Sonya Ishii, LLC, a North Carolina limited liability company, acting by and through its duly authorized member, James N. Hirschfield. 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 Artist 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 has set aside funds to commission public art/design enhancements in conjunction with the East Rosedale streetscape improvement project that is 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, City is constructing improvements to East Rosedale Street, from Highway 287 to Miller Avenue, in Council District 8; WHEREAS, following feedback from the community, City consultants, and the City, it was determined that the modern roundabout being constructed at the intersection of Mitchell Boulevard and East Rosedale Street (2400 block of East Rosedale Street) provides the best opportunity for public artwork, as it is adjacent to Sycamore Park with good views of downtown Fort Worth; WHEREAS, the Fort Worth Art Commission (the "FWAC") has recommended the Project in its Fiscal Year 2014 Annual Work Plan and Budget, adopted by the Fort Worth City Council on November 22, 2013 as (M&C C-25920) as part of the City's agreement with the Contract Manager for administration of the public art program; rn WHEREAS, on July 9, 2012, the Artist team of Jim Hirschfield and Sonya Ishii were 0 rn competitively selected as the project alternate through a process outlined in the Fort Worth Public Art rn Master Plan and conducted by the Contract Manager with oversight of the FWAC; OFFICIAL RECOR=,„ D Nal CITY SECRETARY Et WORTH TX Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Ro=te87�Mille 1of20 WHEREAS, the artist who was originally selected for the project chose to not continue with the project; therefore, on January 13, 2014, the FWAC recommended that Artist, in coordination with City and the City's Project Consultant, be retained to design an 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; and 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 Artist for Preliminary Design of Public Art for the Site. 1.2. Artist — Means and includes Jim Hirschfield and Sonya Ishii, LLC. 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. 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 review and approval. 1.9. Project — Means and includes the capital improvement/public art development undertaking of City for which Artist 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 planned modern roundabout at the intersection of Mitchell Boulevard and East Rosedale Street, Fort Worth, 76105, which is more particularly described in Exhibit "A,' attached hereto and incorporated herein by reference for all purposes. Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Rosedale 287-Miller 2 of 20 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 2.1. 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 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 work on the Preliminary Design, Artist shall meet with and seek input from Project Stakeholders. (f) Artist shall explore concepts for the Work within the implementation budget set forth in Article 2.3. (g) Artist shall design an impactful and unique artwork for the Site that is relevant to the community and can be appreciated when viewed by motorists and pedestrians alike. (h) Recognizing that time is of the essence and that the Project is underway, Artist shall evaluate the footing previously engineered for the original artist s artwork design at the Site, which is included in the City's construction documents, and coordinate with the City's Project Consultant and City's general contractor on any changes needed to the design of the footing. (i) Artist may give input to the City's Project Consultant on landscaping for the Site. (i) Artist's Preliminary Design of the Work shall include preliminary dimensions and massing of the Work appropriately scaled to the Site, as well as preliminary lighting design, including specifying the type and location of lighting fixtures. (k) Artist shall meet and coordinate with the City, Project Consultants and others, as necessary, to ensure the Work is integrated into the Site in terms of structural support, fighting, electricity, or other infrastructure needs to support the Work. (1) Artist shall present the Preliminary Design to the Contract Manager at least two weeks before any formal presentations occur. Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Rosedale 287-Miller 3of20 (m) Artist shall present the Preliminary Design to the appropriate City committee, City staff, Project Stakeholders 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. (n) Artist shall make a minimum 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. 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 two (2) months after the Effective Date, Artist shall review previously designed footing for the Site and provide input on any changes that may be necessary to support their Work. Artist may consult with their engineer. (b) Within four (4) 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. Three preliminary design illustrations showing the proposed Work from three vantage points, including a plan view, which shall be in a high resolution digital format and/or mounted on foam core and at least 20" x 30"; ii. A narrative description of the Artist's concept, proposed materials, fabrication, lighting and installation methods, timeline for completion and maintenance, and anticipated annual maintenance requirements; iii. Installation diagram, including approximate weight of the Work, proposed base, footing, or attachment method(s) and, if applicable, location(s) for any electrical wiring and lighting fixtures, and iv. 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 to exceed ONE HUNDRED SIXTY SIX - THOUSAND SIX HUNDRED EIGHTY FIVE DOLLARS AND NO CENTS ($166,685.00), reflecting total costs and inclusive of remaining artist's fees, engineering fees, travel materials, labor, lighting, fabrication, transportation, construction, insurance, installation, a contingency of $9,057.00 and all associated costs for the Work. Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Rosedale 287-Miller 4 of 20 2.4. Preliminary Design Review (a) Upon completion of the Preliminary Design Deliverables and submittal to Contract Manager in advance, Artist shall present the Preliminary Design to the FWAC at a regularly scheduled FWAC meeting for review and comment. (b) After presentation to the FWAC, Artist shall meet with the designated Project Stakeholders, City staff and other City boards or commissions, as appropnate, to present the Preliminary Design, at a date and time mutually agreed upon, for input. (c) After presentation of the Preliminary Design to the FWAC and Project Stakeholders, Artist shall present the Preliminary Design to the FWAC for approval at a regularly scheduled FWAC meeting, which may be accomplished by conference call. (d) 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. (e) If City requires any revisions to the Prelirninary 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 (0 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 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 Prehminary Design any revisions made to a City -approved Preliminary Design shall become part of the Prelirninary 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. (i) Upon the expiration of the Term (hereinafter defined) of this Agreement, if the Preliminary Design is accepted by City, negotiations for final design of the Work shall commence, which shall become part of the deliverable under any potential artwork commission contract. Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Rosedale 287-Miller 5of20 ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation Total compensation under the Agreement shall be FOURTEEN THOUSAND FOUR HUNDRED SIXTY-ONE DOLLARS AND NO CENTS ($14,461.00), which shall constitute full compensation for any and all costs associated with the Agreement, including, but not limited to all travel expenses, and services performed and materials furnished by Artist under this Agreement. Artist and City may amend this Agreement to allow for additional payment if additional services are required. 3.2. Payment Schedule (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. FOUR THOUSAND DOLLARS AND NO CENTS ($4,000.00) upon execution of this Agreement. ii SIX THOUSAND DOLLARS AND NO CENTS ($6,000.00) 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. iii. THREE THOUSAND FOUR HUNDRED SIXTY-ONE DOLLARS AND NO CENTS ($3,461.00) within thirty (30) calendar days after City's approval of the Preliminary Design. iv. City may pay Artist up to ONE THOUSAND DOLLARS AND NO CENTS ($1,000.00) for engineering fees to fulfill the terns 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. 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 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. Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Rosedale 287-Miller 6of20 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. 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 perfonnrance of this Agreement. 4.3. Ternination 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. (b) If 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 tenination, 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 pnor to the effective date of termination. If City chooses to pay Artist, then all work product produced by Artist under this Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Rosedale 287-Miller 7 of 20 Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination shall become property of City. (d) If termination is by mutual agreement of the Parties as set forth in Article 2.4, then City shall pay Artist per the payment schedule in Article 3 up through the date of termination. City shall have the right to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination 4.5. Incapacity of Artist (a) In the event that Artist becomes incapable, legally or otherwise, of performing its duties and/or obligations under this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to incapacity. All work product produced by Artist, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination shall become property of City. (b) Should Artist's Preliminary 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 Artist 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 Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Rosedale 287-Miller 8of20 date of the request for mediation, then all the conditions precedent in this article shall be deemed to have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction No provision of this agreement shall waive any immunity or defense. No provision of this Agreement constitutes consent to sue. If the Parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. (See Article 4.3) ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1 General (a) Upon payment in full to Artist or pursuant to the applicable termination provision of this Agreement, the Preliminary 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 grant to the City an exclusive, perpetual, royalty free, and irrevocable license to graphically depict and publicly 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 pubhc services or its public purposes regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non-commercial purpose. (b) In view of the intention that the Preliminary Design and the Work be unique, Artist shall not make any additional exact duplicate reproductions of the Preliminary Design or the Work, nor shall Artist grant pennission 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 reserve 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." (d) Nothing in this Agreement shall prevent the Artist from using images of the Preliminary Design and/or Work for marketing and promotional purposes in connection with the Artist s business. Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Rosedale 287-Miller 9 of 20 (e) City is not responsible for any third -party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. 6.2 Artist's Address. Artist shall notify City of changes in Artist's address as set forth in Article 12. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights. ARTICLE 7 WARRANTIES OF TITLE AND COPYRIGHT (a) Artist represents and warrants that: i. Preliminary Design and/or Work shall be the original product of the Artist's sole creative efforts. ii. 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; iii. 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; iv. Preliminary Design and/or Work (or duplicate thereof) have not been accepted for sale elsewhere; v. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and vi. All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill and diligence. ARTICLE 8 ARTIST AS INDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as independent contractors, and not as officers, agents, servants or employees 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 their officers, agents, employees, and subcontractors. Nothing herein shall be construed as creating a partnership or Joint venture between City and Artist, their officers, agents, employees and subcontractors, and doctrine of respondent superior has no application as between City and Artist. Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Rosedale 287-Miller 10 of 20 ARTICLE 9 INDEMNIFICATION 9.1. General Indemnity (a) ARTIST COVENANT AND AGREE TO AND DO HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT THEIR OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR OMISSIONS OF ARTIST AND ITS MEMBERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES AND 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 perfoiinance under this Agreement. (c) Artist shall require all of their 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 agree 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 Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Rosedale 287-Miller 11 of 20 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. 9.3. Survival All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. ARTICLE 10 EOUAL OPPORTUNITY (a) Artist shall not engage in any unlawful discrimination based on race, creed, color, national origin, sex, age religion, disability, marital status, citizenship status, sexual orientation or any other prohibited criteria in any employment decisions relating to this Agreement, and Artist represent and warrant 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's noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated or suspended in whole or in part, and Artist may be debarred from further agreements with City. ARTICLE 11 MISCELLANEOUS 11.1. Compliance Artist shall comply with all Federal state, and local statutes, ordinances, and regulations applicable to the performance of Artist's services under this Agreement. 11.2. Entire Agreement This writing embodies the entire agreement and understanding between the Parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 11.3. Amendments No alteration, change, modification, or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Rosedale 287-Miller 12of20 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 its 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 Majeure It is expressly understood and agreed by the Parties to this Agreement that, if the performance of any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather; governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots; material or labor restrictions; transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so 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 Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Rosedale 287-Miller 13 of 20 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 tern of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 11.12. Captions Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 11.13 Right to Audit Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Work (collectively "Records") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, the Artist shall make all Records available to the City at 1000 Throckmorton Street, Fort Worth, Texas or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. Notwithstanding anything to the contrary herein, this Article shall survive expiration or earlier termination of this Agreement. 11.14 Certified MWBE If applicable, Artist is encouraged to make their 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. 11.17 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. Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Rosedale 287-Miller 14 of 20 11.18. 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: 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 of Public Art Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, Texas 76107 Jim Hirschfield 312 Ridgecrest Drive Chapel Hill, North Carolina, 27514 IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective as of the Effective Date. CITY OF FORT WORTH by: Fernando Costa Assistant City Manager Date: eilfG,//4 JIM HIRSCHFIELD AND SONYA ISHII, LLC b' _ fF y. = -= Jim Hirschfield Member vbf • Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Rosed 15 of 20 le FFIC AL RECORD Vii7ficTirilp !I APPROVED AS TO FORM AND LEGALITY: Ty e� r'. ach Assistan ity Attorney ATT D BY: frac-Cc/- Mary J. Kayser City Secretary Contract Authorization: No M&C Required OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Rosedale 287-Miller 16 of 20 Exhibit A Site Location of future roundabout at Mitchell and East Rosedale Engineer's rendering of future roundabout (with landscaping depicted as a place holder for the artwork) Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Rosedale 287-Miller 17of20 Exhibit B Implementation Budget 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 vsdho live more than 50 miles from Fort Worth) INSURANCE Airfare Car Rental Per Diem Expenses at $_ per day Mileage at $_ per mile Auto/Hired Vehicle Liability General Liability for Artist f Subcontractors Workers Comp. / Employer's Liability Other, as applicable ADMINISTRATIVE EXPENSES Phone/Fax Delivery/Shipping (for correspondence, samples, models, dra+MMngs 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 FP: PA, City of Fort Worth or others) Test Drilling' Removal" Landscaping/l rrigat ion' Electrical Modifications' WaterWork/Mechanical Devices Other` fRPviserf Mav 2011I Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Rosedale 287-Miller 18 of 20 TRANSPORTATION BASE/MOUNTING li laterials to Fabrication Site' Finished Work to Installation Site' Other` Base Mounting Devices and Components Foundation/Footing Other 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 PolicelSecurity' Traffic Barriers' Storage Facility Rental' City Permits Display Devices Fireproofing' Site Restoration' Other* LIGHTING GRAND TOTAL Please make any necessary notes here: Prepared By: Date: Designers' Futures' Bulbs' Site Preparation' Installation' (Revised May 2011) Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Rosedale 287-Miller 19 of 20 Exhibit C Sales Tax Exemption TEXAS C:1';IZ't7I:ICri [ E OE EXE:tlPTION' I admen an exemption 11'0111 payment of sales and use taxes Ilse the purchase of taxable items described helaw or on the attached under or invoice. Desorption of Items (nr ran attached order or Invuicej 1 o Re Purchased: I claim this c!telllption for the foliovving rear Name of Exempt Organization: CITY OF FORT W'ORTII,'TEXAS TEXAS SALES AND USE TAX PEIIMIT NUMBER 1-75-60001528-6 Project for which materials and supplies are purchased: I understand that 1 will be liable lhr payment of sales tax, which may become due fir failure to comply with the provisions,_sf the state. city, and/or metropolitan transit authority sales and use tax laws and comptroller rules regarding exempt purchases. Liability for the tax will be determined by the price paid for the taxable items purchased or the fair market rental value tin the period of time used. I understand that it is a misdemeanor to Live an exemption certificate to the seller for taxable items which r know, al the lime of the purchase, will be used in a manner other than that expensed in this certificate and, upon conviction. may he tined up to 5500 per offense. Tax.E.xeinnt Status l)uc to Nino n Governmental iiniiiv Purchaser: CITY OF FORT WORTH. TEXAS Street Address: 1000 TJIROCKM1IORTOIN STREET City. Slate. Zip Code: FORT WORTH. TEXAS 76102 Sign Here: • 1 "44 Furrrc't 1 7gta^CmC:i nib t5. fL,ntr Dale: June I I , 2009 Plsone. ti 1 tJ 't his certificate does not require a nunlher to he valid, Sales and use tax "csenlpti(s) numbers or "tax exe11rp1" numbers (to 11ot exist, 1 his certificate shoold be fumishcd to the supphdr Do net send the crnnplewd tit; cute to the Comptroller of Public Accoutts. Agreement with Jim Hirschfield and Sonya Ishii, LLC, for Preliminary Design of Public Artwork for East Rosedale 287-Miller 20 of 20