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HomeMy WebLinkAboutContract 44355 (2)RECEIVED APR - 9 2OE13 CITY SECRETARY CONTRACT NO. AGREEMENT BETWEEN THE CITY OF FORT WORTH AND SALLY WEBER FOR PRELIMINARY DESIGN OF PUBLIC ART FOR PRECINCT LINE ROAD AND BRIDGE This Agreement is entered into this day ofap , r1 f , 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 Sally Weber, an individual, of 1406 D Smith Road, Austin, Texas 78721. City has designated the Arts Council of Fort Worth and Tarrant County, Inc., to manage this Agreement on its behalf. The Contract Manager shall act through its designated project manager. WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of 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 of Fort Worth is designing and constructing an expansion of Precinct Line Road, and the Texas Department of Transportation ("TxDOT") is replacing Precinct Line Road and Bridge that extends north on Precinct Line Road from the intersection with Trinity Boulevard in Council Districts 4 and 5 in northeast Fort Worth to provide better traffic flow and ease traffic congestion in northeast Fort Worth; WHEREAS, public art funds for the project have been allocated from the 2004 CIP and the project was included in the Fiscal Year 2013 Annual Work Plan and Budget (approved by City Council on October 16, 2012 as M&C C-25920); WHEREAS Artist was selected through a competitive process conducted by the Contract Manager and overseen by the FWAC as the basis for execu Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge reement - aad °FFHCP/AL RECOR ©ATV SECLIN ICATl Y VT �fif012stirriftl9 i Page 1 of 27 WHEREAS, the FWAC has recommended that Artist, in coordination with City and TxDOT's consultants, develop a Preliminary Design for the Site; WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be designed to promote the integrity of Artist's ideas and statements as represented by the Work. NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: 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 Sally Weber for Preliminary Design of Public Art for the Site. 1.2. Artist — Means and includes Sally Weber and/or her heirs, executors, administrators, legal representatives, successors, agents, contractors, subcontractors, subartists, and assigns. 1.3. 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. 1.4. City — Means and includes the City of Fort Worth and its officers, representatives, agents, servants, and employees. 1.5. Effective Date — Means and includes the date represented in the first paragraph of this Agreement, which shall be the official date of execution of this Agreement 1.6. Parties — Means and includes City and Artist. Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 2 of 27 1.7. Preliminary Design — Means all preliminary drawings, sketches, prototypes, maquettes, models, narrative descriptions, budget estimates, and the like that are created by Artist in connection with this Agreement and/or any prior agreement between Artist and City for the Work. 1.8. Preliminary Design Deliverables — Means and includes those items set forth in Article 2.3 of this Agreement that Artist is required to submit to City for its review and approval. 1.9. Project — Means and includes the capital improvement/public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement 1.10. Project Consultants — Means and includes the design firm/professional(s) hired by City and TxDOT 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 (FWAC) appointed representative and others as may be appropriate. 1.12. Site —Means and includes a section of Precinct Line Road that contains Precinct Line Bridge that extends north from the intersection of Precinct Line Road with Tnnity Blvd and that lies in Council Districts 4 and 5 in northeast Fort Worth, Texas, which is more particularly described on the map attached hereto as Exhibit "A" and made apart hereof for all purposes. 1.13. Work — Means and includes the finished obi ect(s) of art and design that are the subject of this Agreement, or any intermediary stage of completion of such objects. ARTICLE 2 SCOPE OF SERVICES 2.1. General. a. Artist shall perform all services and will furnish all supplies and materials as necessary for developing the Preliminary Design and for providing the Preliminary Design Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 3 of 27 Deliverables. Services shall be perfornied in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and acceptance by City as set forth in this Agreement c. The location at the Site where the Work shall be installed shall be mutually agreed upon by City and Artist. d. Artist, upon request of Contract Manager, shall provide infouuation and/or attend meetings with appropriate City staff for purposes of risk assessment, safety review, sighting of the Work, and permitting. e. Prior to commencing the Preliminary Design, Artist shall meet with and seek input from Project Stakeholders as designated by Council Member Danny Scarth and Council Member Frank Moss, and wit the City's Transportation and Public Works Department staff, Project Consultants, and TxDOT staff. f. Artist shall explore free-standing design enhancements and concepts for the Work, within the preliminary implementation budget set forth in Article 2.3. g. Artist may also work with the Project Consultants to explore design enhancements that may be integral to the Project and covered by the construction budget. h. Artist shall meet and coordinate with City's and TxDOT's Consultants and others, as necessary, to explore the feasibility of integrating the Work into the Site in terms of structural support, lighting, electricity, or other infrastructure needs to support the Work. i. Artist shall present the Preliminary Design to Project Stakeholders and City officials for input and to the FWAC for review and approval at dates and times mutually agreed upon Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bndge Page 4 of 27 j. The Artist shall make a maximum of two (2) trips to Fort Worth, Texas for meetings and presentations as indicated above. Additional trips, if required per this Article, may be negotiated and agreed upon in writing by City and Artist. 2.2. City Assistance. Upon request by Artist, City shall promptly furnish all information and materials required by Artist to the extent that such materials are available. City, upon request by Artist, shall also provide correct scaled drawings of the Site, if available. 2.3 Preliminary Design Deliverables. Within five (5) months after the Effective Date, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Article 2.3 to City for approval. Preliminary Design Deliverables shall consist of the following: a. Two preliminary design illustrations showing the proposed Work from two vantage points, including a plan view, which shall be at least 20" x 30" and mounted on foam core and/or in a high resolution digital format; b. A narrative description of the Artist's concept, proposed materials, fabrication, and installation methods, timeline for completion and maintenance, and conservation requirements; c. Installation diagram, including approximate weight of the Work, proposed base, footing, or attachment method(s) and, if applicable, location(s) for any electrical outlets and lighting fixtures; d. A preliminary budget estimate, on the budget form attached hereto as Exhibit "B," for implementation of a final design of the Work in an amount not exceed NINETY-TWO THOUSAND SEVEN HUNDRED DOLLARS AND NO CENTS ($92,700.00) which includes all costs for materials, engineering and consulting, labor, fabrication, delivery, Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 5 of 27 installation, insurance, transportation, remaining Artist's fee, and all other associated costs for the Work including, but not limited to, lighting and travel. Material or fabrication samples and/or prototype models for the Work that show the size and placement of the Work in relation to the Site, as appropriate. 2.4. Preliminary Design Review a. Upon completion of the Preliminary Design Deliverables, Artist shall meet with the designated Project Stakeholders, Project Consultant, City staff, and other City boards or commissions, as appropriate, to present the Preliminary Design, at a date and time mutually agreed upon, for input. b. Artist shall present the Preliminary Design to the FWAC for approval at a regularly scheduled FWAC meeting. c. City may require Artist to make such revisions to the Preliminary 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 request revisions to the Preliminary Design as City deems necessary in its sole discretion. e. Within thirty (30) calendar days of its receipt of the Artist's submission of the Preliminary Design, the City shall notify the Artist of its approval, or disapproval, of such submission and of each revision made in the Preliminary Design. Revisions made pursuant to this Article 2.5, upon approval by City, shall become part of the Preliminary Design and shall be incorporated into the final design in conformance with City's requirements, if Artist proceeds to the final design phase. Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 6 of 27 f. If the Preliminary Design or any required revision is disapproved by City, Artist shall have thirty (30) calendar days to resubmit the Preliminary Design in conformance with City's requirement. 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 Preliminary Design presentation materials to City to become part of City's Public Art archive. h. Upon City's approval of the Preliminary Design, Artist shall provide the Preliminary Design presentation materials to the Contract Manager to become part of the City of Fort Worth Public Art archive owned by City These documents, models, and/or drawings will be retained for archival and exhibition purposes. i. Upon the expiration of the Term (hereinafter defined) of this Agreement, if the Preliminary Design is accepted by City and funding is appropriated by the Fort Worth City Council, negotiations for final design or final design and commission for fabrication, delivery, and installation of the Work shall commence, which shall become part of the deliverable under any anticipated final design or final design/artwork commission contract. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation Total compensation to Artist under the Agreement shall be ELEVEN THOUSAND THREE HUNDRED DOLLARS AND NO CENTS ($11,300), which shall constitute full compensation for any and all costs associated with this Agreement, including, but not limited to, all travel expenses and services performed and materials furnished by Artist under this Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bndge Page 7 of 27 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 FIVE HUNDRED DOLLARS AND NO CENTS ($3,500.00) upon execution of this Agreement. b. THREE THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($3,500.00) within thirty (30) days after Artist submits the Preliminary Design Deliverables, as required in under Article 2.3 of this Agreement and makes a presentation of the Preliminary Design to the FWAC. c. FOUR THOUSAND THREE HUNDRED DOLLARS AND NO CENTS ($4,300.00) within thirty (30) calendar days after the City notifies the Artist of its approval of the Preliminary Design. 3.3. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Work. City shall supply Artist with the "Texas Certificate of Exemption," in substantially the same form as that attached hereto as Exhibit "C," for use by Artist in the fulfillment of this Agreement 3.4. Artist's Expenses Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on submissions to City, cost of all travel, and costs for Artist's agents, consultants, Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 8 of 27 and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 4 TERM AND TERMINATION 4.1. Term This Agreement shall be in effect from the Effective Date and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City. 4.2. Gratuities City may cancel this Agreement if it is found that gratuities in the faun 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 Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 9 of 27 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 temtination 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 tetlnination Upon payment in full of all monies due for services provided up to the effective date of termination, City shall have the right, in its sole discretion, to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination, provided that no right to fabricate or execute the Work shall pass to City. c. If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to pay Artist 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 unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination shall become property of City. d. If termination is by mutual agreement of the Parties as set forth in Article 2.4, then City shall pay Artist for work perfouned per the payment schedule in Article 3 up through the date of termination. City shall have the right to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 10 of 27 and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination. 4.5. Incapacity of Artist a In the event of Artist's death or Artist becoming physically or legally incapacitated during the tens of this Agreement, City shall have the right to teuninate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to death or incapacity. All work product produced by Artist, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination shall become property of City. b. Should Artist's Preliminary Design have been approved, in the event of termination under this Article 4.5, City shall have the right to complete the Work. 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 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. Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 11 of 27 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) ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1. General a. Upon payment in full to Artist, or pursuant to the applicable termination provision of this agreement, the Preliminary Design , and all other work product under this Agreement shall become the property of the City, without restriction on future use, except as provided below. Artist shall retain copyright and other intellectual property rights in and to the Preliminary Design By execution of this Agreement, Artist grants to the City an Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bndge Page 12 of 27 exclusive, perpetual and irrevocable license to graphically depict or display the Preliminary Design for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Preliminary Design and intended to promote or benefit City, its public services or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non-commercial purpose. b. In view of the intention that the Preliminary Design and the Work be unique, Artist shall not make any additional exact duplicate reproductions of the Preliminary Design or the Work, nor shall Artist grant 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 Preliminary Design and/or Work, except as those rights are limited by this Agreement. City may make and disseminate photographs, drawings, and other two-dimensional reproductions of the Preliminary Design and 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: "O date, Artist's name." d. Nothing in this Agreement shall prevent the Artist from using images of the Preliminary Design and/or Work for marketing and promotional purposes in connection with the Artist's business. 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 Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bndge Page 13 of 27 Artist shall notify City of changes in Artist's address 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. Preliminary Design shall be the original product of the Artist's sole creative efforts. b. Preliminary Design 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 Preliminary Design or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; d. Preliminary Design (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 Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 14 of 27 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. 9.1. General Indemnity ARTICLE 9 INDEMNIFICATION 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, 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. Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 15 of 27 ii. 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. iii. 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 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 Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 16 of 27 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 Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 17 of 27 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. 11.4. Waiver No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any teams, 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 Severability Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 18 of 27 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 Maleure 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 delivery by City to Artist of written notice of City's intention to terminate or (ii) the last date for Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 19 of 27 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 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 Independent Contractor), and 9 (Indemnification) shall survive the termination or expiration of this Agreement. 11.16 Public Information Act Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 20 of 27 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. 11.18. Time Extensions The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement Agreeinent between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 21 of 27 ARTICLE 12 NOTICES All notices, requests, demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: 1. CITY OF FORT WORTH. Fernando Costa, Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street, Third Floor Fort Worth, Texas 76102 Copies to: 2. ARTIST 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 of Public Art Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, Texas 76107 Sally Weber 1406 D Smith Road Austin, Texas 78721 [SIGNATURES APPEAR ON FOLLOWING PAGE ] Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 22 of 27 IN WITNESS HEREOF, the parties hereto have executed this Agreement on the Effective Date. CITY OF FORT WORTH by: Fernando Costa Assistant City Manager ‘%i APPROVED AS TO FORM AND LEGALITY: Tyler F. Wallach Assistant City Attorney ATTESTED BY: Mary J. City Secretary ./yessiThe FOas • ,„/ A no00000cit% al An? Q0 JSIt0 latbc f I Contract Authorization: No M&C Required ARTIST Sally Weber Individual ' 11 CI T' SECk l \EY Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 23 of 27 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: Mary J. Kayser City Secretary Contract Authorization: No M&C Required Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge ARTIST fly Weber Individual Page 23 of 27 Exhibit A: Site TrInitty4Blvd a Preclnct Line: Rd, Hurst, TX 4066sToli GIIay 01-Itt• St,eainIng Eyo a lt' 2629.11 Precinct Line Road at Trinity Blvd, looking SE Precinct Line Road at Trinity Blvd, looking NW Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 24 of 27 Exhibit B: Budget FORT WORTH PUBLIC ART PROJECT BUDGET Please complete this form and attach a signed receipt or estimate completewith per unit costa (no lump sums) for all Items destinated with an asterisk('). Coat Increases mesh also have a written estimate attached, ARTIST'S FEE (2094 TRAVEL (For artists who live more than GO miles iron Font Worth) Airfare Car Rental Per Dlem Expenses at (_ per day Mileage at $_ per mile INSURANCE AutooHlred Vehicle Liability General Liability lot Artist: eukccntractrrs Worker's Comp.: Employer's Liability Other, as applicable ADMINISTRATIVE EXPENSES Phr_ne,'Fax Deliveryr8hIp ing (for ccrrespon:lery e, samples, mc•:iels, drawings etc) Reprojraphic Service Supplies PROFESSIONAL CONSULTANT FEES (If applicable, drawing must be signed and sealed by a professional registered to practise in the State of Texas) Architect' Structural Engineer• Electrical Engineer' Conservator` Photographer (for d cumentatlon of oompletedwork)' Other MATERIALS (Please attach a complete list of materials. Itemize all antic paled aspects and components with per unit omst estimates) Materials' Total Cost Increases?: Projected Increase in Cost Materials 12 Mciiths In Future FABRICATION COSTS (Imlude and Itemize all portions of suhccntraeledwork and work to be oompleted by artist.) Artist's Labor ( harts al $_ per hour) Total Subcontracted Labor* (Total) Facility/Equipment Rental (used exclusively for this project) related to fabibation Cost Increases?. Projected increase in Cost Fabrication 12 fdctiths In Future SITE PREPARATION (Do not Inc tide costs covered by FW PA, City of FortWorth or others) Test Drilling' Removal' Landscaping'hrigathn' Electrical Madi0catibns' Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 25 of 27 Water W orluMechenlcel Devices Other' Cost Increases?: Projected Increase In Cost Site Preparation 12 flcnths In Future TRANSPORTATION Materials to Fetrication Bite FinishedWcrk to Installation Site Other Cost Increases?: Projected Increase in Cat Transportation 12 Mcnths In Future BASE/MOUNTING Base Mounting Devices and Components Foundationf Fccting Other Cost Increases?: Projected Increase in Cost fvtountinarFcctIng 12 [.tenths In Future INSTALLATION COSTS (Costs must include eilateance for atter hours installation, if applicable. Please attach a complete list of eq.ripment and individual estimates with this form) Sa tccritracted Latrs' Scaffolding" Equjornem Rental related to Installation' Off -duty Pollcs'Security' Traffic Barriers' Storage Facility Rental' City Permits Display Devices Fireproofing' Site Restoration' Other' Cost Iwteases?: Projected Increase in Cc€t Installation 12 Months In Future LIGHTING Designers' Fixtures' Bulbs' Site Preparation' Installation' Cost Increases?: PmJected Increase in Cost Lighting 12 Months In Future GRAND TOTAL (Including protected cost Increase, If any) Please make any necessary notes here: Prepared By: Date: Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bridge Page 26 of 27 Exhibit C: Sales Tax Exemption TEXAS CERTIFICATE OF EXEMPTION claim an exemption from payment of sale and use taxes for the purchase oftaxable items described below or on the ittached order or invoice. Description of Items (or an attached order or Invoice) To Be Purchased: cla this exemption for the following reason: Name of Exempt Organization: CITE` OF FORT WORTH, TEXAS TEXAS SALES AND USE 'FAX 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 become due for failure to comply with the provisions of the state, city, andior metropolitan transit authority sales and use tax laws and comptroller rules regarding exempt purchases. Liability for the 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. 1 understand that it is a misdemeanor to give an exemption certificate to the seller for taxable items which 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 lined up to $500 per offense. Tax Exempt Status Due to Being a Govcrnrnental Entity Purchaser: CITY OF FORT WORTH, TEXAS Street Address: 1000 THROCKMORTON STREET City, State, Zip Code: FORT WORTH, TEXAS 76102 Sign Here Date: June 1 1, 2009 Phone: 817-392-8517 This certificate does riot 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 nut scud the completed cct ('nmptroller of Public Accounts he Agreement between the City of Fort Worth and Sally Weber for Preliminary Design of Public Art for Precinct Line Road and Bndge Page 27 of 27