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HomeMy WebLinkAboutContract 42825CITY SECRETARY CONTRACT No. A7,K5 AGREEMENT FOR DESIGN OF PUBLIC ART WORK AT MEACHAM AIRPORT TERMINAL AGREEMENT BETWEEN THE CITY OF FORT WORTH AND MYTHOGRAPH, INC. This Agreement, entered into this I day of RbY\AG�.N 2012 by and between the City of Fort Worth, a home -rule municipal corporation of the State of Texas, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and MYTHOGRAPH, Inc., a California Corporation, located at 669 West Eighth Street, Claremont, CA 91711, acting by and through Kipp Kobayashi, its duly authorized President. The City has designated the Arts Council of Fort Worth and Tarrant County, Inc., to manage this agreement on its behalf. The Contract Manager shall act through its designated Public Art project manager. WHEREAS, pursuant to Chapter 2, Sections 2 -56 through 2 -61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of artists into the development of the City's capital infrastructure improvements and to promote tourism and economic vitality in the City through the artistic design of public spaces; WHEREAS, City is renovating the terminal at Meacham International Airport, 4201 North Main Street, Fort Worth, Texas 76106; WHEREAS, the City desires to include public art in the Meacham International Airport Terminal to enhance tenants, visitors' and staffs' experience of the site; WHEREAS, the Fort Worth Aviation Department has budgeted 2% of the design and construction budget from aviation gas well revenue to design and implement public art for the Site; i OFFICIAL- RECORD CITY SECRETARY FT WORTH, TX Agreement for Design of Public Art Work at Meacham Airport Terminal Between the City of Fort Worth and Mythograph. Inc. WHEREAS, the Fort Worth Art Commission (the "FWAC ") has recommended the Project in its FY2012 Annual Work Plan and Budget (approved by City Council on December 6, 2011 as M &C C- 25337); WHEREAS, Artist was competitively selected through a process outlined in the Fort Worth Public Art Master Plan conducted by the Contract Manager with oversight of the FWAC; WHEREAS, City and Artist acknowledge that Artist's Preliminary Design has been recommended by the artist selection panel and approved by the FWAC as the basis for executing this Agreement with the Artist; and WHEREAS, the FWAC has recommended that Artist, in coordination with City's Project Consultant, be retained for design of an artwork for the Site based on the approved Preliminary Design; WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be designed. NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: 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 Final Design of Public Art for the Site. 1.2. Artist — Means and includes Mythograph, Inc., and /or its members, managing members, officers, managers, proprietors, directors, employees, representatives, agents, subsidiary Agreement for Design of Public Art Work at Meacham Airport Terminal Page 2 of 31 Between the City of Fort Worth and Mythograph, Inc. organizations, parent organizations, successor entities, assigns, predecessors, stockholders, administrators, subartists, contractors, and related companies.. 1.3. Artwork Designs — Means and includes the Preliminary Design and Final Design of the Work, which is defined in 1.3.a. and 1.3.b. below. 1.3.a. Preliminary Design — Means all preliminary drawings, sketches, 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, 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 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, employees, agents, subsidiary organizations, parent organizations, successor corporations, assigns, predecessors, stockholders, administrators, and related companies. 1.5. Community Group — Means and includes the group of community representatives and /or stakeholders selected to review the Artwork Design. 1.6. City — Means and includes the City of Fort Worth and its officers, representatives, agents, servants, and employees. Agreement for Design of Public Art Work at Meacham Airport Terminal Page 3 of 31 Between the Cite of Fort Worth and Mvthograph, Inc. 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 Designs Deliverables — Means and includes those items set forth in Article 2.5 of this Agreement that are required for City's review and approval. 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. 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 location of the Main Terminal being renovated at Meacham International Airport, 4201 N. Main St., Fort Worth, TX 76106 in Council District 2 in north Fort Worth, all of which is more particularly described on Exhibit `B," attached hereto and incorporated herein by reference for all purposes. 1.13. Work — Means and includes the finished objects of art and design that are the subject of this Agreement, or any intermediary stage of completion of such works. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Artist Selection. City and Artist acknowledge that Artist's Preliminary Design was approved by the FWAC on April 11, 2011, as the basis for executing this Agreement with the Artist. 2.2. Scope of Services a. Artist shall perform all services and will furnish all supplies and materials as necessary for developing the Final Design of the Work and tier providing the Final Design Deliverables. Agreement for Design of Public Art Work at Meacham Airport Terminal Pa-e 4 of 3l Between the City of Fort Worth and Mvthograph, Inc. Services shall be performed in a professional manner and in strict compliance with all terms and conditions set forth in this Agreement. b. Artist, in consultation with the Project Consultant, 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. Prior to commencing work on the Final Design, Artist shall meet with the designated Community Group, City officials, and Fort Worth Department of Aviation staff for input on historical aviation details that Artist may choose to incorporate into his Final Design. d. Artist shall coordinate with Project Consultant for proper integration of the Work into the Site and into the construction documents and to allow for sufficient structural support and appropriate lighting for the Work. e. 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. f. The location at the Site on which the Work shall be installed shall be mutually agreed upon by City, the Fort Worth Aviation Department, and Artist. g. Artist shall present the Final Design to the appropriate City committee, City staff, Project Consultant, Community Group, 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. 2.3. Implementation Budget Total Artist shall develop a Final Design that is financially feasible relative to the budget for implementation. It is understood that the total budget for implementation of the Final Design is estimated to be ONE HUNDRED SIXTY -SEVEN THOUSAND DOLLARS AND NO CENTS Agreement for Design of Public Art Work at Meacham Airport Terminal Page 5 of 31 Between the City of Fort Worth and Mythograph. Inc. ($167,000.00), which includes all costs for materials, labor, fabrication, delivery, installation, insurance, transportation, travel, remaining Artist's fee, and all other associated costs for the Work. Artist shall provide a detailed budget, on the budget form attached hereto as Exhibit "C," for implementation of the Work through a possible artwork commission contract with City. Artist may propose additional budget for lighting and any anticipated and reasonable cost increases that may occur before construction. 2.4. 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 Sites, if available. 2.5. 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 2.5 to City for approval. Final Design Deliverables shall consist of the following: i. Detailed, design illustrations of the Work for the Site, which shall be at least 20" x 30" and mounted on foam core and /or in a high - resolution digital format, such as JPEG or TIF files; ii. A final written narrative for the Work, describing the following: (1) Final Design concept and timeline for completion; (2) Proposed materials, fabrication, and installation methods for all elements of the Work, including information regarding Artist's subcontractor(s), if any; (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 to be conducted by Artist during the commission Agreement for Design of Public Art Work at Meacham Airport Terminal Pay e 6 of 31 Between the City of Fort Worth and MNthograph, Inc. phase of the project, or proposed method for involving the community in the fabrication of the Work. iii. Comprehensive working drawings, detailing the means of installing all elements of the Work on the Site, together with other such graphic material as may be requested by City to permit City to carry out structural design review. Upon City's request, these drawings must be signed and stamped by an engineer and /or architect licensed to work in the State of Texas, as required by City. Artist will obtain and furnish to Contract Manager certificates of professional liability insurance from each such licensed professional and will require the City to be named as a "certificate holder" entitled to notice of cancellation/nonrenewal in accordance with standard practices. Artist shall not be liable for the use of the drawings submitted under this Article for any use other than the Final Design. iv. A final budget for the Work with written estimates attached for supplies and services to be provided by Artist, Artist's subcontractor, or others in an amount not to exceed $167,000.00. b. Upon approval, Artist shall provide the Final Design presentation materials to the Contract Manager to become part of the City's Public Art archive. 2.6. Design Review a. Upon completion of the Final Design Deliverables, Artist shall meet with the appropriate City committee, City staff, Project Consultant, Community Group, and other City boards or commissions, as appropriate, to present the Final Design at dates and times mutually agreed upon for input. Agreement for Design of Public Art Work at Meacham Airport Terminal Page 7 of 31 Between the City of Fort Worth and Mythograph, Inc. b. Artist shall present the Final Design to the FWAC for approval at a regularly scheduled meeting. C. City may require Artist to make such revisions to the Final Design as are necessary 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. d. City may also require Artist to make such revisions to the Final Design as City deems necessary in its sole discretion. e. Within thirty (30) business days of its receipt of Artist's submission of the Final Design, City shall notify Artist of its approval, or disapproval, of such submission and of each revision made in the Final Design. Revisions made pursuant to this Article 2.6, upon approval by City, shall become part of the Final Design. f. If the Final Design or any required revisions to the Final Design is disapproved by City, Artist shall have thirty (30) calendar days to resubmit the Final Design in conformance with City's requirements. g. If resubmitted materials are not approved by City, this Agreement may be terminated at City's sole discretion, with payment for work performed per the payment schedule in Article 3 up through the date of termination. Artist shall provide the Final Design presentation materials to Contract Manager to become part of City's Public Art archive. Upon the expiration of the Term, as hereinafter defined, of this Agreement, if the Final Design is accepted by City and funding is approved by the Fort Worth City Council, negotiations for fabrication, delivery, and installation of the Work shall commence, and shall become part of the deliverables under any possible subsequent artwork commission contract. Agreement for Design of Public Art Work at Meacham Airport Terminal Page 8 of 31 Between the City of Fort Worth and Mythograph, Inc. h. Upon approval of the Final Design by City, Artist shall provide the Final 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. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation Total compensation to Artist under the Agreement shall not exceed TWENTY -THREE THOUSAND DOLLARS AND NO CENTS ($23,000.00), which shall constitute full compensation for any and all costs associated with this Agreement, including, but not limited to, engineering and consulting fees, 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 City agrees to pay Artist in the following installments set forth below, each installment to represent full and final, non - refundable payment for all services and materials provided prior to the due date thereof: a. FIVE THOUSAND DOLLARS AND NO CENTS ($5,000.00) upon execution of this Agreement. b. FIVE THOUSAND DOLLARS AND NO CENTS ($5,000.00) within thirty (30) days after Artist submits the Final Design Deliverables, as required in under Article 2.5 of this Agreement and makes a presentation of the Final Design to the FWAC. Agreement for Design of Public Art Work at Meacham Airport Terminal Page 9 of 31 Between the City of Fort Worth and Mythograph, Inc. C. TEN THOUSAND DOLLARS AND NO CENTS ($10,000.00) within thirty (30) calendar days after the City notifies the Artist of its approval of the Final Design and detailed design drawings, working drawings, and other items required under Section 1.4. City may pay Artist up to THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) for engineering fees and a conservator's consultation 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. 3.3. Sales Taxes City is a tax - exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the project. City shall supply Artist with the "Texas Certificate of Exemption" in substantially the same form as that attached hereto as Exhibit "D" for use by Artist in the fulfillment of this Agreement. 3.4. Artist' 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. 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. Agreement for Design of Public Art Work at Meacham Airport Terminal Page 10 of 31 Between the City of Fort Worth and Mythograph. Inc. 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 of this Agreement. 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, specifying the grounds for termination. b. If the termination is for the convenience of City, City shall pay Artist for services actually rendered up to the effective date of termination, and Artist shall continue to provide the City with services requested by City and in accordance with this Agreement up to the effective Agreement for Design of Public Art Work at Meacham Airport 1'erminal Page I I of 31 Between the City of Fort Worth and Mythograph. Inc. date of termination. Upon Artist's receipt of payment in full of all monies due for services provided up to the effective date of termination, City shall have the right at its discretion to possession and transfer of title to the sketches, designs, and models already prepared and submitted or presented for submission to City by Artist under this Agreement prior 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, Artist shall remit to City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to 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 finished and unfinished drawings, sketches, photographs, models, and any other work shall automatically become property of City. b. Should Artist's Final Design have been approved, in the event of termination under this Article 4.5, City shall have the right to complete the Work. 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 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 resokv these issues through this dispute resolution process. "The disputing party shall notity Agreement for Design of Public Art Work at Meacharn Airport Terminal Page 12 of 31 Between the City of Fort Worth and Mythograph, Inc. the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach, or other matter in question that may arise out of, or in connection with this Agreement. If the Parties fail to resolve the dispute within sixty (60) calendar days of the date of receipt of the notice of the dispute, then the Parties may submit the matter to non - binding mediation upon written consent of the authorized representatives of both parties in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code, then in effect. Request for mediation shall be in writing, and shall request that the mediation commence not less than fifteen (15) or more than forty -five (45) calendar days following the date of request, except upon Agreement of the Parties. In the event City and Artists are unable to agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty (30) calendar days following the date of the request for mediation, then all the conditions precedent in this article shall be deemed to have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No provision of this agreement shall waive any immunity or defense. No provision of this Agreement constitutes consent to sue. If the Parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. (See Article 4.3) Agreement for Design of Public Art Work at Meacham Airport Terminal Page 13 of 31 Between the City of Fort Worth and Mythograph. Inc. ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1 General a. Upon payment in full to Artist, the Artwork Design, Work, and all other work product under this Agreement shall become 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 /or Work. By execution of this Agreement, Artist grants to City a perpetual, 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. City shall take title to all documents and /or drawings that constitute or are components of the Artwork Design and /or Work upon final approval of the Final Design. These documents and /or drawings will be retained for archival and exhibition purposes. C. Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Artwork Design and /or the 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, Work, and accompanying materials for any municipal purpose. All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the following form: "© date, Artist's name." Agreement for Design of Public Art Work at Meacham Airport Terminal Page 14 of 31 Between the City of Fort Worth and Mythograph, Inc. d. Nothing in this Agreement shall prevent Artist from using images of the Artwork Design or Work for marketing and promotional purposes in connection with Artist's business; provided, however, that Artist shall make its best effort to credit City for commissioning the Work whenever possible. e. City is not responsible for any third -party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. 6.2 Artist's Address. Artist shall notify City of changes in Artist's address as set forth in Article 12. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights. ARTICLE 7 WARRANTIES OF TITLE AND COPYRIGHT Artist represents and warrants that: a. Artwork Design and /or Work shall be the original product of the Artist's sole creative efforts. b. Artwork Design and /or Work is and will be unique and original, and does not infringe upon any copyright or the rights of any person; C. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork Design and /or Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; d. Artwork Design and /or Work (or duplicate thereof) have not been accepted for sale elsewhere: Agreement for Design of Public Art Work at Meacham Airport Terminal Page 15 of 31 Between the City of Fort Worth and Mythograph. Inc. e. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and f. All services performed hereunder shall be performed in accordance with all applicable laws, L9 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 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, Agreement for Design of Public Art Work at Meacham Airport Terminal Page 16 of 31 Between the City of Fort Worth and Mythograph, Inc. INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND /OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM THE NEGLIGENT ACT, ERROR, OR OMMISSION OF ARTIST AND /OR ARTIST'S SUBARTISTS AND 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 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 Agreement for Design of Public Art Work at Meacham Airport Terminal Page 17 of 31 Between the City of Fort Worth and Mythograph. Inc. 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. 9.3. Survival All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. ARTICLE 10 EQUAL OPPORTUNITY a. Artist shall not discriminate against any employee or applicant for employment because of age, disability, race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. Artist shall take affirmative action to ensure that employees are treated equally during employment, without regard to their age, disability, race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. Such action shall include, but not be limited to, the following: Employment, upgrading, demotion, transfer, recruitment or pay or other forms of compensations, and selection for training, including, but not limited to, apprenticeship. Artist agrees to post in conspicuous places. available to employees and Agreement for [)esign of Public Art Work at Meacham Airport Terminal Page 18 of 31 Between the City of Fort Worth and Mythograph. Inc. applications for employment, notices to be provided by the City setting forth the provision of this nondiscrimination clause. b. Artist shall in all solicitation or advertisements for employment placed on or on behalf of the Artist, state that all qualified applicants shall receive consideration for employment without regard to race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. C. Artist shall furnish all information and reports requested by City, and shall permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with such rules and regulations. d. 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 the 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 Agreement for Design of Public Art Work at Meacham Airport Terminal Page 19 of -31 Between the Citv of Fort Worth and Mythograph. Inc. 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 the City. 4. Waiver No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants, and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 11.5. Governing Law and Venue If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 11.6. Successors and Assigns Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and their respective successors and permitted assigns. 11.7. No Third -Party Beneficiaries The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 11.8 Severabilit Agreement for Design of Public Art Work at Meacham Airport Terminal Page 20 of 31 Between the City of Fort Worth and Mythograph. Inc. 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 City to fulfill its obligations under this Agreement, City may terminate this Agreement to be effective on the later of (i) thirty (30) days following Agreement for Design of Public Art Work at Meacham Airport Terminal Page 21 of 31 Between the City of Fort Worth and Mythograph, Inc. 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 11.13 shall survive expiration or earlier termination of this Agreement. 11.14 Certified MWBE If applicable, Artist shall make its best effort to become a certified Minority /Women Business Enterprise (M /WBE) firm with a certifying agency whose certification is accepted by City under City's M /WBE ordinance. 11.15 Survival Provision The provisions contained in Articles 6 (Ownership and Intellectual Property Rights) 7 (Warranties of Title and Copyright), 8 (Artist as Independent Contractor), and 9 (Indemnification) shall survive the termination or expiration of this Agreement. Agreement for Design of Public Art Work at Meacham Airport Terminal Page 22 of31 Between the City of Fort Worth and Mythograph, Inc. 11. 16 Public Information Act Artist understands and acknowledges that City is a public entity under the laws of the State of Texas and, as such, all documents held by City are subject to disclosure under Chapter 552 of the Texas Government Code. Artist shall clearly indicate to City what information it deems proprietary. If City is required to disclose any documents that may reveal any of Artist's Proprietary Information to third parties under the Texas Government Code, or by any other legal process, law, rule, or judicial order by a court of competent jurisdiction, City will notify Artist prior to disclosure of such documents, and give Artist the opportunity to submit reasons for objections to disclosure. City agrees to restrict access to Artist's information to those persons within its organization who have a need to know for purposes of management of this Agreement. City agrees to inform its employees of the obligations under this paragraph and to enforce rules and procedures that will prevent any unauthorized disclosure or transfer of information. City will use its best efforts to secure and protect Artist's information in the same manner and to the same degree it protects its own proprietary information; however, City does not guarantee that any information deemed proprietary by Artist will be protected from public disclosure if release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Agreement. 11.17. Counterparts and Electronic Signatures This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. Agreement for Design of Public Art Work at Meacham Airport Terminal Page 23 of 31 Between the City of Fort Worth and Mythograph. Inc. 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: CITY OF FORT WORTH: Fernando Costa, Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 Copies to: Sarah Fullenwider, City Attorney Office of the City Attorney 1000 Throckmorton Street, Third Floor Fort Worth, TX 76102 Martha Peters, Vice President of Public Art Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, TX 76107 Mythograph, Inc. 669 West Eighth Street Claremont, CA 91711 [SIGNATURES APPEAR ON THE FOLLOWING PAGE.] Agreement for Design of Public Art Work at Meacham Airport Terminal Page 24 of31 Between the City of Fort Worth and M ahograph, Inc. IN WITNESS HEREOF, the Parties hereto have executed this Agreement on the Effective Date. CITY OF FORT WORTH by: Fernando Costa Assistant City Manager APPROVED AS TO FORM AND LEGALITY: Tyler F. Wallach Assistant City Attorney ATTESTED BY: City Secretary MYTHOGRAPH, INC. by: Kipp Mot President OFFICIAL RECORD I CITY SECRETARY FT. WORTH, TX � Agreement for Design of Public Art Work at Meacham Airport Terminal Page 25 of 31 Between the City of Fort Worth and Mythograph, Inc. IN WITNESS HEREOF, the Parties hereto have executed this Agreement on the Effective Date. CITY OF FORT WORTH by: 5441 " 4I� Fernando Costa Assistant City Manager APPROVED AS TO FORM AND LEGALITY: z:f7w1V'1& Tyler F. WIlach Assistant City Attorney 7NOM&C REQI7IRI:I) ATTESTED BY: MYTHOGRAPH, INC. by: Kipp Kobayashi President OFFICIAL RECORD I CITY SECRETARY FT. WORTH, `Tx l Agreement for Design of Public Art Work at Meacham Airport "Germinal Page 25 of31 Between the City of Fort Worth and Mythograph. Inc. Exhibit A: Preliminary Design Agreement for Design of Public Art Work at Meacham Airport Terminal Page 26 of 31 Between the City of Fort Worth and Mythograph, Inc. Exhibit B: The Site GENERAL AVIATION TERMINAL BUILDING RENOVATION MEACHAM AIRPORT 11 INSTALLATK)N ELEVATION INSTALLATION PLAN 0 UGHT FIXTURES -f wrERNAL L�ItrFlxruRE -, ' N e %, T m I /0 ®, ro I ®� N 1�qy� 'a e'-� ��,N� 1 ► �d� P y F,® mII i `J 4 STAINLESS STEEL GABLE AND CONNECTORS (DETAIL. BELOW EST. iNE1GtfT. 250 41iS. Agreement for Design of Public Art Work at Meacham Airport Terminal Page 28 of 31 Between the City of Fort Worth and Mythograph, Inc. Exhibit C: Budget 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 I Subcontractors Worker's Comp i Employer=s Liability Other, as applicable ADMINISTRATIVE EXPENSES PhoneiFax 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 FWPA. City of Fort Worth or others) Test Drilling' Removal' L a nd s c a p mgt I r ri g a t i on' Electrical Modifications' Water Work %Mechanical Devices Other' (Revised A4ay 2011) Agreement for Design of Public Art Work at Meacham Airport Terminal Pau 29 of 31 Between the City of Fort Worth and Mythograph, Inc. TRANSPORTATION Materials to Fabrication Site` Finished Work to Installation Site* Other* BASE /MOUNTING 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 for)) Subcontracted Labor' Scaffolding* Equipment Rental related to installation* Off -duty Police /Security' Traffic Barriers* Storage Facility Rental" City Permits Display Devices Fireproofing* Site Restoration* Other* LIGHTING Designers' Fixtures* Bulbs* Site Preparation* Installation* GRAND TOTAL Please make any necessary notes here: Prepared By: Date: (Revised klay 20111 Agreement for Design of Public Art Work at Meacham Airport Terminal Page 30 of 31 Between the City of Fort Worth and Mythograph. Inc. Exhibit D: Sales Tax Exemption TEXAS CERTIFICATE OF EXEMPTION I 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:. Description of Items (or an attached order or Invoice) To Be Purchased: I claim this exemption for the following reason: Name of Exempt Organixatiow CITY OF FORT WORTH, TEXA. S TEXAS SALES AND USE TAX PERMIT NUMBER 1- 75- 6000528 -6 Project for which materials and supplies are purchased: I understand that. I will be liable for payment of sales tax, which may be com ,due for failure to corn I with the prop =isiors of the state, city, an&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 for the period of time used. I understand that it is a misdemeanor to give an exemption certifieate to the seller for taxable items which I know, at the time of the purchase, will be used in a manner other than that expensed in this certificate and, upon conviction, may be fined up to $500 per offense. Tax Exempt Status Due to Being a Governmental Enti Purchaser: CITE` OF FLIRT WORTH, TEXAS Street Address. 1000 THROCiCMORTON STREET City, State, Zip Code:: FOR I WORTH, TEXAS 76102 Sign He i Date: ts:uttii R n _Duxu,��nic� lhnr��ar June 11, 2009 Phone: 817- 392 -8517 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 nett send the completed certificate to the Comptroller of Public Accounts. Agreement for Design of Public Art Work at Meacham Airport Terminal Page 31 of 31 Between the City of Fort Worth and Mythograph, Inc.