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Contract 44287 (2)
CITY SECRETARY CONTRACTNOE 'tll 7LI Z AGREEMENT BETWEEN THE CITY OF FORT WORTH AND DONNA LYNN DOBBERFUHL AND NED ALVIN DOBBERFUHL D/B/A SCULPTURAL DESIGNS FOR FINAL DESIGN OF PUBLIC ART FOR EAST ROSEDALE ROUNDABOUT (HWY 287-MILLER) This Agreement is entered into this / day of nim re � , 2013, 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 Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl, d/b/a Sculptural Designs, 1514 Broadway, San Antonio, Texas 78215. 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, allocated from the 2004 Capital Improvement Program ("CIP") as part of the Long Range Public Art Plan for the 2004 CIP approved by the Fort Worth City Council on May 17, 2005 (M&C G-14801), are funds for the design and production of artwork for East Rosedale Street (Hwy 287 — Miller) in Council District 8; WHEREAS, City is currently designing improvements to East Rosedale Street, from Highway 287 to Miller Avenue, in Council District 8, and it has been determined that the modern roundabout to be constructed in the 2300 block of East Rosedale at the intersection of Mitchell Boulevard provides the best opportunity for public artwork; WHEREAS, the Project was included in the Fiscal Year 2013 Annual Work Plan and Budget, adopted by the Fort Worth City Council on October 16, 2012 as (M&C C-25920) as part of the City's agreement with the Contract Manager for administration of the public art program; 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 Fort Worth Art Commission ("FWAC"); WHEREAS, on September 11, 2012, the City entered into a preliminary design contract (City Secretary Contract No. 43576) with Donna L. Dobberfuhl, in her individual capacity as the artist for this public art project; WHEREAS, on November 12, 2012, the FWAC approved the Artist's Preliminary Design, and recommended Artist be placed under a Final Design contract to include engineering and lighting design; and RECEIVED MAR 1 S 2013 Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 1 of 23 WHEREAS, since executing the preliminary design contract, Ms. Dobberfuhl has informed the City that she operates under the assumed name of Sculptural Designs, which she shares with her husband, Ned Alvin Dobberfuhl, in order to carry out the services required under this Agreement and any future artwork commission contract; WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be designed to promote the integrity of Artist's ideas and statements as represented by the Work. NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: 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 Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl, d/b/a Sculptural Designs and/or their heirs, executors, administrators, legal representatives, successors, agents, subartists, contractors, assigns, members, officers, managers, proprietors, partners, directors, employees, representatives agents, subsidiary organizations, parent organizations, successor entities, assigns, predecessors, stockholders, administrators, and any related companies. 1.3. Artwork Design - Means and includes both the Preliminary Design and Final Design of the Work, which are defined in 1 3 a and 1.3.b. below. 1.3.a. Preliminary Design - Means all preliminary drawings, sketches, prototypes, maquettes, models, narrative descriptions, budget estimates, and the like that 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 concepts created under the aforementioned Preliminary Design Contract (CSC 43576)„ attached hereto as Exhibit "A" and incorporated herein for all purposes. 1.3.b. Final Design - Means the Artist's final, proposed design of the Work for the Site which is based upon the City -approved Preliminary Design and includes, but is not limited to, all final drawings, sketches, prototypes, maquettes, models, and the like that may be created by Artist in connection with this Agreement or the like that are related, directly or indirectly, to the Work and shall include Artist's specifications for fabrication and installation of the Work. Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 2 of 23 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 organization, successor corporations, assigns, predecessors stockholders, administrators, and related companies. 1.5. City — Means and includes the City of Fort Worth, Texas and its officers, representatives, agents, servants, and employees. 1.6. 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. 1.7. Final Design Deliverables — Means and includes those items set forth in Article 2.4 of this Agreement that are required for City's review and approval. 1.8. Parties — Means and includes City and Artist. 1.9. Project — Means and includes the capital improvement or public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement 1.10. Project Consultant — Means and includes the design firm/professional(s) hired by City to design the Site. 1.11. 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. 1.12. Site — Means and includes the planned modern roundabout in the 2300 block of East Rosedale Fort Worth, Texas, 76105, at the intersection of Mitchell Boulevard, which is more particularly described in Exhibit B, ' attached hereto and incorporated herein by reference for all purposes. 1.13. Work — Means and includes the finished object(s) of art and design that are the subject of this Agreement, or any intermediary stage of completion of such work. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Artist Selection. City and Artist acknowledge that Artist's Preliminary Design was reviewed and approved by the FWAC on November 12, 2012, and is the basis for executing this Agreement with Artist. 2.2. Scope of Services. a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary for developing a Final Design of the Work and for providing the Final Design Deliverables. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 3 of 23 Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and input from the Project Stakeholders and approval by City as set forth in this Agreement. c. Artist's Final Design for the Work shall wrap the carved brick Rose design around the entire tower and include a visual reference to the history of the Poly, Texas. d. Artist shall consult with a lighting designer and provide a lighting design for the Work. e. The location at the Site where the Work shall be installed shall be mutually agreed upon by City and Artist. f. 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 pei miffing. g. Artist shall meet and 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 electrical and lighting for the Work. h. Artist shall coordinate with the City's Project Consultant on the choice of plant materials and design of landscaping of the Site where the Work will be installed in order to reinforce Artist's concept and such landscape design shall be included in all of Artist's design presentations. i. Artist shall coordinate with the City's Project Consultant on overall height of Work to ensure scale is appropriate to the Site. j. Upon request of City, Artist shall provide written maintenance recommendations for the Work to the Contract Manager. k. Before proceeding with item 2 21 below, Artist shall present the Final Design to the Contract Manager for review and input. 1. Artist shall present the Final 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. m. Artist shall make a maximum of two trips to Fort Worth, Texas for meetings and presentations as indicated above. Additional trips, if required per this Article, may be negotiated and agreed upon in writing by City and Artist. 2.3. City Assistance. Upon request by Artist, City shall promptly furnish all infoiuiation 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. Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 4 of 23 2.4. Final Design Deliverables a. Within three months after the Effective Date, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Article 2.4 to City for approval. 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, showing the proposed Work from two vantage points with at least one illustration showing the Work's size and placement in relation to the Site. ii. A final written narrative of the Work, describing the following (1) the Final Design concepts and timeline for completion; (2) proposed materials, fabrication, and installation methods for all elements of the Work, including lighting design and information regarding Artist's subcontractor(s), if any, for the Work and information about the Project Consultant's landscaping plan for Site; (3) maintenance requirements for all elements of the Work as dictated by Artist, along with cost estimates for annual maintenance; and (4) proposed public education program or activity to be conducted by Artist at a time mutually agreed upon by the Parties. iii. Comprehensive working drawings, detailing the means of installing all elements of the Work on the Site, together with other such graphic material to permit City to carry out structural design review. Professional Liability Insurance is required in all circumstances for on -site artwork requiring engineering and/or architectural services. City will conduct a review of structural design and other related graphic material prior to installation of the Work Upon City's request, drawings must be signed and stamped by an engineer and/or architect licensed to work in the State of Texas. Artist will provide the Contract Manager a certificate of insurance for each licensed professional and provide City with a 30-day notice of cancellation of any policy required hereunder. iv. A detailed budget, on the budget form attached hereto as Exhibit "C," for fabrication and installation of the Work in an amount not exceed ONE HUNDRED FIFTY- ONE THOUSAND EIGHT HUNDRED THIRTY-THREE DOLLARS AND NO CENTS, ($151,833.00), which includes all costs for materials, labor, fabrication, delivery, installation, insurance, transportation, remaining Artist's fee, an itemized budget for lighting including a lighting consultant, travel, and all other associated costs for the Work, and a contingency in an amount up to $9,057.00 for any unforeseen changes in scope, material, fabrication or installation costs associated with the Work , which shall be included as a line item in the detailed budget. Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 5 of 23 2.5. Final Design Review. a. When Final Design Deliverables are 50% complete, Artist shall present the Final Design to the Contract Manager for review and input. b. Upon full completion of the Final Design Deliverables, Artist shall present the Final Design to the FWAC for approval at a regularly scheduled FWAC meeting. c. After presentation to the FWAC, Artist shall meet with the designated Project Stakeholders, City staff, and other City boards or commissions, as appropriate, to present the Final Design, at a date and time mutually agreed upon for input. d. City shall notify Artist of its approval, or disapproval, of the Final Design within thirty (30) business days of Artist's presentation to the FWAC. e If City disapproves of the Final Design, either in whole or in part, then City shall inform Artist of each revision to be made to the Final Design. City may require Artist to make such revisions to the Final Design as City deems necessary in its sole discretion and/or for the Work to comply with apphcable statutes, ordinances, or regulations of any governmental regulatory agency having jurisdiction over the Site for reasons of safety and security. f. Artist shall have thirty (30) calendar days from the date City informed Artist of the revision(s) to present the revised Final Design in conformance with City's requirements. g If City disapproves of the resubmitted Final Design, any further Final Design resubmissions will be by mutual agreement of the Parties and subject to the procedures and terms in this Article If the Parties desire not to continue with the resubmission process, then this Agreement will automatically terminate, with payment for work performed per the payment schedule in Article 3 up through the date of termination (See Article 4.4.d) h Upon City approval of the Final Design, any revisions made to a City -approved Final Design shall become part of the Final Design Artist shall incorporate any City -approved revisions into the final design in conformance with City's requirements. Artist shall provide the Final Design presentation materials to the Contract Manager to become part of the City s Public Art archive These documents, models and/or drawings will be retained for archival and exhibition purposes. i. Upon the expiration of the Term (hereinafter defined) of this Agreement, if the Final Design is accepted by City and funding is appropriated by the Fort Worth City Council, negotiations for fabrication, delivery, and installation of the Work shall commence, which shall become part of the deliverable under any anticipated artwork commission contract. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 6 of 23 Total compensation to Artist under the Agreement shall be an amount up to ELEVEN THOUSAND ONE HUNDRED FOUR DOLLARS AND NO CENTS ($11,104.00), which shall constitute full compensation for any and all costs associated with this Agreement, including, but not limited to, engineering and lighting 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. THREE THOUSAND ONE HUNDRED EIGHTY-SIX DOLLARS AND NO CENTS ($3,186.00) upon execution of this Agreement. b. THREE THOUSAND SIX HUNDRED FORTY-TWO DOLLARS AND NO CENTS ($3,642 00) within thirty (30) calendar days after Artist submits all of the Final Design Deliverables required under Article 2.4 of this Agreement and makes a presentation(s) of the Final Design to the FWAC and project stakeholders, and any other person or entity under Article 2.5. c. TWO THOUSAND TWO HUNDRED SEVENTY-SIX DOLLARS AND NO CENTS ($2,276.00) within thirty (30) calendar days after City's approval of the Final Design. d. City may reimburse Artist up to Two Thousand Dollars and No Cents (2,000.00) for engineering and consulting fees in order to fulfill the terms of this Agreement. Such payment shall be made upon receipt of an invoice from Artist with the original invoice (a retainer fee of up to 50% is allowed) for such services attached thereto. 3.3. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Project. City shall supply Artist with the "Texas Certificate of Exemption " in substantially the same form as that attached hereto as Exhibit "D ' for use by Artist in the fulfillment of this Agreement. 3.4. Artist's Expenses Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on submissions to City and/or Contract Manager, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 4 TERM AND TERMINATION 4.1. Term Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 7 of 23 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 perfoiuiance of this Agreement. 4.3. Termination for Cause If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this Article 4.3 in accordance with the dispute resolution process set forth in Article 5 If the Parties cannot resolve the dispute(s), then the disputing party shall thereupon have the right to terminate this Agreement upon the delivery of a written ` Notice of Termination" specifying the grounds for termination. Termination of this Agreement under this provision shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. 4.4. Termination for Convenience a. The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted thirty (30) calendar days before termination, specifying the grounds for termination b. If the termination is for the convenience of City, City shall pay Artist for services actually rendered up to the effective date of termination, and Artist shall continue to provide the City with services requested by City and in accordance with this Agreement up to the effective date of termination Upon payment in full of all monies due for services provided up to the effective date of termination, City shall have the right, in its sole discretion, to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to finished and unfmished drawings, sketches photographs, models, and designs, up to the effective date of termination, provided that no right to fabricate or execute the Work shall pass to City. c. If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to pay Artist for services actually rendered up to the effective date of termination or require the Artist to remit to City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to the effective date of termination If City chooses to pay Artist for services actually rendered, then all work product produced by Artist under this Agreement, including, but not limited to, finished and Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 8 of 23 unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination shall become property of City. d. If termination is by mutual agreement of the Parties as set forth in Article 2.5, then City shall pay Artist for work performed per the payment schedule in Article 3 up through the date of termination. City shall have the right to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, fmished 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 either Donna Lynn Dobberfuhl or Ned Alvin Dobberfuhl become incapable, legally or otherwise, of performing their duties and/or obligations under this Agreement, City may choose to continue the terms of this Agreement with the capable party or terminate this Agreement. In the event that both Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl become incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to incapacity. All work product produced by Artist, including, but not limited to, fmished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination shall 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, 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 If either Artist or City has a claim, dispute or other matter m question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement, the Parties shall first attempt to resolve these issues through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings or other reasonable means to resolve any claim, dispute, breach, or other matter in question that may arise out of or in connection with this Agreement. If the Parties fail to resolve the dispute within sixty (60) calendar days of the date of receipt of the notice of the dispute, then the Parties may submit the matter to non -binding mediation upon written consent of the authorized representatives of both parties in accordance with Chapter 154 of the Texas Civil Practice and Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 9 of 23 Remedies Code and Chapter 2009 of the Texas Government Code, then in effect. Request for mediation shall be m writing, and shall request that the mediation commence not less than fifteen (15) or more than forty-five (45) calendar days following the date of request, except upon Agreement of the Parties In the event City and Artists are unable to agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty (30) calendar days following the date of the request for mediation, then all the conditions precedent in this article shall be deemed to have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No provision of this agreement shall waive any immunity or defense. No provision of this Agreement constitutes consent to sue If the Parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. (See Article 4.3) ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1 General a. Upon payment in full to Artist, the Artwork Design, Work, and all other work product under this Agreement shall become the property of City, without restriction on future use, except as provided below. Artist shall retain copyright and other intellectual property rights in and to the Artwork Design and/or Work. By execution of this Agreement, Artist grants to the City an exclusive, perpetual, and irrevocable license to graphically depict or display the Artwork Design and/or Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Design and/or Work intended to promote or benefit City, its public services or its public purposes regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non-commercial purpose. In view of the intention that the Prehminary 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 permission to others to do so except with the express written permission of City. However, nothing herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic expression c. Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Artwork Design and/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 Artwork Design and/or Work and accompanying materials for any municipal purpose. All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: "© date, Artist's name." Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 10 of 23 d. Nothing in this Agreement shall prevent the Artist from using images of the Artwork Design and/or Work for marketing and promotional purposes in connection with the Artist's business; provided, however, that Artist shall make its best effort to credit City for commissioning the Work whenever possible substantially in the following form: "an original artwork commissioned by and in the collection of the City of Fort Worth, Texas." e. City is not responsible for any third -party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist 6.2 Artist's Address. Artist shall notify City of changes in Artist's address as set forth in Article 12. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate Artist when matters apse relating to Artist's rights ARTICLE 7 WARRANTINS 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; 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, 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 Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 11 of 23 herein shall be construed as creating a partnership or joint venture between City and Artist, his/her officers, agents, employees and subcontractors, and doctrine of respondent superior has no application as between City and Artist. ARTICLE 9 INDEMNIFICATION 9.1. General Indemnity a. ARTIST COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WINCH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM THE ACTS, ERRORS, OR OMMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTISTS AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. b. Artist agrees to and shall release City from any and all liability for injury, death damage, or loss to persons or property sustained or caused by Artist in connection with or incidental to performance under this Agreement. c. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. 9.2. Intellectual Pronertv Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 12 of 23 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 engage in any unlawful discrimination based on race, creed, color, national origin, sex, age, religion, disability, marital status, citizenship status, sexual orientation or any other prohibited criteria in any employment decisions relating to this Agreement, and Artist represents and warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be debarred from further agreements with City ARTICLE 11 MISCELLANEOUS 11.1. Compliance Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the performance of Artist's services under this Agreement. 11.2. Entire Agreement This writing embodies the entire agreement and understanding between the Parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 11.3. Amendments No alteration, change, modification, or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. 11.4. Waiver Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 13 of 23 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 m 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 m accordance with the laws of the State of Texas. 11.6. Successors and Assigns Neither party hereto shall assign, sublet, or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease, or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and their respective successors and permitted assigns. 11.7. No Third -Party Beneficiaries The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights, contractual, or otherwise, to any other person or entity. 11.8 Severability If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. 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 Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 14 of 23 against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 11.11. Fiscal Funding Out If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 11.12. Captions Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 11.13 Right to Audit Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Work (collectively "Records") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, the Artist shall make all Records available to the City at 1000 Throckmorton Street, Fort Worth, Texas or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. Notwithstanding anything to the contrary herein, this Article shall survive expiration or earlier termination of this Agreement. 11.14. Certified MBE/WBE If applicable, Artist is encouraged to make its best effort to become a certified Minority Business Enterprise (MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is accepted by the City under the City's Business Diversity Enterprise Ordinance. 11.15 Survival Provision The provisions contained in Articles 6 (Ownership and Intellectual Property Rights), 7 (Warranties of Title and Copyright), 8 (Artist as an Independent Contractor), and 9 (Indemnification) shall survive the termination or expiration of this Agreement. 11.16 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 Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 15 of 23 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 mform its employees of the obligations under this paragraph and to enforce rules and procedures that will prevent any unauthorized disclosure or transfer of information City will use its best efforts to secure and protect Artist's information in the same manner and to the same degree it protects its own proprietary information; however, City does not guarantee that any information deemed proprietary by Artist will be protected from public disclosure if release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Agreement. 11.17 Counterparts and Electronic Signatures This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 11.18. Time Extensions The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. 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, Third Floor Fort Worth, Texas 76102 Copies to: Sarah Fullenwider, City Attorney Office of the City Attorney City of Fort Worth 1000 Throckmorton Street, Third Floor Fort Worth, Texas 76102 Martha Peters, Vice President, Public Art Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, Texas 76107 Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 16 of 23 2. ARTIST Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs 1514 Broadway San Antonio, TX 78215 IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective as of the Effective Date. CITY OF FORT WORTH ARTIST by: >441140*444 Fernando Costa Donna Lynn Dobberfuhl Assistant City Manager d/b/a Sculptural Designs APPROVED AS TO FORM AND LEGALITY: Tyler �F' iVallach Assistant City Attorney ATTESTED BY: A�o�o60o���4F pA 07,0c, //QI 00., ag war °sir 11:4 �r 0 P a G, Vik �Mary J. Kay:er G p oo� City Secretary S00000000ap'�'matitronveire- whetaSaK Contract Authorization: No M&C Required Ned Alvin Dobberfuhl d/b/a Sculptural Designs OFFICIAL RECORD' CITY SECRETARY Ft WORTHS 77( Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 17 of 23 • ARTIST Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs 1514 Broadway San Antonio, TX 78215 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 IVlanager • APPROVED AS TO FORM AND LEGALITY: • Tyler F. Wallach Assistant City Attorney ATTESTED BY: • Mary J. Kayser City Secretary • • Contract Authorization: No M&C Required • • • ARTIST Donna Lynn Dob . erfulil d/b/a Sculptural Designs Ned Alvin lD obb erfuhl d/b/a Sculptural Designs • • OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX • Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuh -- d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 17 of 23 Exhibit A: The Preliminary Design Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 18 of 23 Exhibit B: The Site Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 19 of 23 FORT WORTH PUBLIC ART PROJECT BUDGET Please complete this form and attach a signed receipt or estimate complete with costs (no hump sums) for all items designated moth an asterisk(`). Cost increases also have a written estimate attached. ARTIST'S FEE TRAVEL (For art live more than 50 miles from Fon Worth) Airfare Car Rental Per Diem Expenses at $ per say age at $_ per mire INSURANCE Auto''N;red Vehicle Liab Iity General Liability for Artist I Subcontractors 'Workers Como ; Employer's Liability Other, as 3p21 cab'.e ADMINISTRATIVE EXPENSES Cloliver/iSh pcIng (fur conesccndence, sampl Phcne'r els, draw or Reprographic •u PROFESSIONAL CONSULTANT FEES (If apical -le drawing must I:e signed and sealed by a professio^at registered to practice In the State of Texas) ect' Structural Engineer Electrical Engineer Consera Photographer (for documentation of completed'.wrk)' Other' MATERIALS (Please attach a complete list cf materials. Itemi-° ail anticipated aspects and components with per unit cost estimates) FABRICATION COSTS (Include and itemize 311 portic artist.) Materials' Total of subcontracted work and work to be completed by Artist's Labor ( t S_ per hour) Total Subcontracted Labor (Total) Facrity/Equlpment Rental (used a clus,vely for this protect) related to fabrication SITE PREPARATION (Do no; include costs covered by FWPA. City of Fort Worth or others) Test Dril:ng' Remova" L ands c apt ng/1 r n gal: on' Electrical Modifications' Water Wcrioklechanicat Devices Other (Revise(' May 2011) Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 20 of 23 TRANSPORTATION BASE/MOUNTING Materials 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 -duly Police!Security' Traffic Barriers' Storage Facility Rental' City Permits Display Devices Fireproofing" Site Restoration' Other` LIGHTING Designers' Fixtures" Bulbs` Site Preparation' Installation' CONTINGENCY GRAND TOTAL Please make any necessary notes here: Prepared By: Date: Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 21 of 23 TRANSPORTATION BASE/MOUNTING Mat Finished als to Fabrication Site' ork to Installation Site' Other' Base Mounting_ Devices and Conmpor ents Foundation/Footing Other INSTALLATION COSTS (Costs must include aliohance for after hours instal lat cne if apptic ahle Please attach a complete fist of equipment and ind:vtdual estimates wtn this form) LIGHTING CONTINGENCY GRAND TOTAL Please make any necessary notes here: Prepared By: Date: Subcontracted Later' Scafiol:i:ng• Equ pment Rental related to Instafation' Off -duty Poaice/Security Traffic Barriers' ge Facility Rein!' City Pemiits Di Nay Devices Fireploor•ng' Restomtan' 0ttter` Designers" Folures' Bolos` Site Preparatan` Installation' (Re:iiettfl4ay 2fi1f1 Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 22 of 23 1111 1^ C.xelnn11Un In .111 pN; llt attshatt,1onto 1: tl ipl1. all0 1 eLam1: Namc nt EIto at TEXAS S urdcr4tai*d t with the prely t 1'tnl,trnllex toles rcpar fi) tlrc Taxable items p 100 Exhibit D: Sales Tax Exemption El II I(`311 t OI i=\Ir: d°a- etnis flu He do t=r Ink the 1-allowing ru'e nt l l,l fie 1': hits P'I'I()N rguriuititn- (:'ill' OF FORT S%ORI II, I NAS ND USE l A,\ PERMIT NUMBER I-75-G111111521“ 11a:4"ri:iii :1: l understand Hu: al the ome .Intl. U11011 [4110 ki1 ,Ip 1 horn rcititi.',dr i t'T.1ptiolICT i11` are pure Iiab>C ltlr payme.`,t st antlior iri ['tri 11 rui Jta cs r the tau tuarkel s ltla. which may Iintsrl transit •aitI,or !My trot- the tat until value ti$7 The period isdnrreanur to 5'15'C 311 CCC1U he u•Cli 111 ] 11111111 1 Up to S#1rII rtkY eticll 1 IlCJnJi', ll t_,i'.'t't lil)tl'nlllk l- ntht CI 14' OF FORT WORTH. TEXAS ItN111 TIIROCK SR)KTON STRFFT FORT 1rORTI1.TEXAS lolll2 ,Ihl hr ter Ile ACC01.10r, 4ttlltiI ri hYi' It.=Yhrv3j'tlita I)Itm' eels descrih4,d C to ca1cnply law lnl°:sA3 ht till' ptl�e' paid imc e1sed- the srllcr 11 III.I Ih;n 111:1t s*t1z11';;+1 in 11 said ;Jrat.1 Iternt3 which ttnrI •1:111110rl 1$ Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl d/b/a Sculptural Designs for Final Design of Public Artwork for East Rosedale Roundabout (Hwy 287 to Miller) 23 of 23