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HomeMy WebLinkAboutContract 44187 (2)SECRESECRETARY NTROM MOO ARTWORK DESIGN ACQUISITION AND FABRICATION CONSULTATION AGREEMENT BETWEEN THE CITY OF FORT WORTH AND KEN O'TOOLE D/B/A ARTWORKS DFW This Agreement is entered into this day of rr. rLAa i , 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 Samuel Kenneth O'Toole, d/b/a ARTworks DFW, located at 6624 Monterrey Drive, Fort Worth, Texas 76112. City has designated the Arts Council of Fort Worth and Tarrant County, Inc., to manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art project manager. WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of artists into the development of the City's capital infrastructure improvements, and to promote tourism and economic vitality in the City through the artistic design of public spaces; WHEREAS, City is constructing a bathhouse for the new Family Aquatic Center at Marine Park on the coiner of 20"' and Ellis Street in north Fort Worth, Texas; WHEREAS, the Fort Worth Art Commission (FWAC) has recommended funds from the Public Art Fund to fund public art for the Site, which 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, City conducted a competitive proposal -based selection process for the development of a design for the Site with the express understanding that City would hire another person or entity to fabricate the Work based on such design and install it at the Site; WHEREAS, City selected Artist based on his design proposal for the Site; WHEREAS, City now desires to acquire Artist's Artwork Design and Artist wishes to sell his !, Artwork Design to the City so that the City may hire another entity to fabricate the Work based on i Artist's Artwork Design for installation at the Site; and WHEREAS, City also desires to retain Artist as a consultant to ensure the integrity of Artist's -c C. Artwork Design during the fabrication, delivery, and installation process; so c WHEREAS, City and Artist wish to set out the terms and conditions under which said acquisition c and consulting shall be completed to promote the integrity of Artist's ideas and states a - resented z by the Artwork Design. rAAL REG0R� Artwork Acquisition and Consulting Agreement Between the City of Fort Worth and Samuel Kenneth O'Tool d/b/a ARTworks DFW Page 1 of 19 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 of Fort Worth and Artist for Acquisition of an Artwork Design and Fabrication Consultation Agreement. 1.2. Artist — Means and includes Samuel Kenneth O'Toole d/b/a ARTworks DFW and his 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 the artwork design titled Dreams at 100 Fathoms, which is compriseA of one abstract design, more particularly described on Exhibit "A," attached hereto and incorporated herein by reference for all purposes, and includes any and all documents, maquettes, drawings, sketches, prototypes, models, derivatives, preliminary or prior versions, and the like that are associated with or created by Artist in connection with such artwork design. 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. Parties — Means and includes City and Artist. 1.8. Project — Means and includes the art project or undertaking of City for which Artist's services are to be provided pursuant to this Agreement and for which the Artwork Design was created. 1.9. Site — Means and includes the bathhouse for the new Marine Park Family Aquatic Center on Ellis Street in North Fort Worth in Council District 2, more particularly described in Exhibit "B" attached hereto and incorporated herein by reference for all purposes. 1.10. Work — Means the finished object(s) of art and design that are the subject of this Agreement, or any intermediary stage of completion of such work and includes a mosaic tile mural based on the Artwork Design that will be approximately 10'4" high x 6'8" wide and be installed at Site. Artwork Acquisition and Consulting Agreement Between the City of Fort Worth and Samuel Kenneth O'Tool d/b/a ARTworks DFW Page 2 of 19 ARTICLE 2 ACQUISITION OF THE ARTWORK DESIGN 2.1. Acquisition of the Artwork Design City shall pay Artist TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) as full consideration for all rights, title, and interest to the Artwork Design, except for any ownership rights of copyright. City shall pay this amount to Artist within thirty days (30) after the Effective Date. Terms and conditions pertaining to warranties, and indemnity, ownership and intellectual property rights, and Artist's rights are contained in Articles 6, 7, 8, and 9, respectively. This provision shall survive the expiration or early termination of this Agreement. ARTICLE 3 FABRICATION CONSULTATION 3.1. Scope of Services. a. Artist understands and acknowledges that City will hire Tessarae Mosaic Studio, Inc., ("Fabricator") to fabricate the Work based on the Artwork Design and deliver and install the Work at the Site. Tessarae is located at 661 N. Plano Road, Suite 321, Richardson, Texas 75081. b. Artist shall consult with City and Fabricator to ensure the integrity of Artwork Design during the fabrication, delivery, and installation process. To achieve this, Artist shall, at the very least, do the following: i. Artist shall meet with the Fabricator at the beginning of the fabrication process to explain the Artwork Design and your expectations for the Work. Artist shall make at least one (1) site visit to the Fabricator every two weeks for a visual inspection and input of the fabrication process. Artist shall be present during the installation of the Work to address any concerns that may arise that may affect the Artwork Design. Artist shall be available to the City and Fabricator for any questions or concerns that may arise during the fabrication, delivery, and installation process. c. If Artist becomes dissatisfied with the Fabricator or in any way objects to the work of the Fabricator, then Artist must seek to resolve any such issues through the Contract Manager first. d. Artist, upon request of Contract Manager, shall attend and observe meetings with Fabricator and appropriate City staff for purposes of risk assessment, safety review, sighting of Work and permitting. Artwork Acquisition and Consulting Agreement Between the City of Fort Worth and Samuel Kenneth O'Tool d/b/a ARTworks DFW Page 3 of 19 e. Artist shall coordinate with the Fabricator to co -present a material sample of the Work to the FWAC for review and approval. f. Artist shall make his best effort to be available at such time or times as may be agreed between City and Artist to attend any inauguration or presentation ceremonies relating to the installation of the Artwork. City shall use its best efforts to arrange for publicity for the completed Work in such art publications and otherwise as may be determined between City and Artist as soon as practicable following installation. g. Artist shall perform all services and shall furnish all supplies, materials, and equipment as necessary for carrying out the Services stated herein. Services shall be performed in a professional manner and in strict compliance with all terns and conditions in this Agreement. h. For the duration of the Agreement, if Artist intends to seek his own publicity for the Artwork, such efforts andlor press releases must be approved, in advance, by Contract Manager and City. ARTICLE 4 COMPENSATION FOR FABRICATION CONSULTATION SERVICES 4.1. Compensation. City shall pay Artist TWO THOUSAND THREE HUNDRED DOLLARS AND NO CENTS ($2,300.00) for all costs associated with the services to be performed and materials to be furnished by Artist under this Agreement, excluding the cost to acquire the Artwork Design stated in Article 2. City will pay Artist such amount within thirty-five (35) days after installation of the Work at the Site. Payment by the City shall represent full and final, non-refundable payment for all services and material provided prior to the due date thereof. $ 2. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Project. City shall supply Artist with the "Texas Certificate of Exemption," attached hereto and made apart hereof for all purposes as Exhibit "C" for use by Artist in the fulfillment of this Agreement. 4.3. 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. Artwork Acquisition and Consulting Agreement Between the City of Fort Worth and Samuel Kenneth O'Tool d/b/a ARTworks DFW Page 4 of 19 ARTICLE 5 TERM AND TERMINATION 5.1. 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. 5.2. Termination for Convenience. The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted thirty (30) days before termination, specifying the grounds for termination. City shall pay Artist for services actually rendered up to the effective date of termination and Artist shall continue to provide City with services requested by City and in accordance with this Agreement up to the effective date of termination. 5.3. 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 in accordance with the dispute resolution process set forth in Article 11 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 Article 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. 5.3 Miscellaneous. In no event shall a termination of this Agreement affect the ownership, rights, and licenses granted herein for the Artwork Design, all of which shall expressly survive the expiration or termination of this Agreement. ARTICLE 6 WARRANTIE S 6.1. Warranties of Title and Copyright. a. Artist represents and warrants that: i. the Artwork Design is the original product of Artist's sole creative efforts; ii. Artwork Design is unique and original and does not infringe upon any copyright or the rights of any person; Artwork Acquisition and Consulting Agreement Between the City of Fort Worth and Samuel Kenneth O'Tool d/b/a ARTworks DFW Page 5 of 19 Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Artwork Design or any element thereof or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; iv. the Artwork Design is free and clear of any claims, judgments, and/or liens from any source whatsoever; v. the Artwork Design (or duplicate thereof) has not been accepted for sale elsewhere; vi. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and viie all services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill and diligence. 6.3 Survival of Representations and Warranties The representations and warranties in this Article shall survive the termination or other extinction of this Agreement. ARTICLE 7 INDEMNITY AND RELEASE 7.1. Indemnity. a. GeneralIndeinnity i. 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 WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM THE ACTS, ERRORS, OR OMMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTIST AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN Artwork Acquisition and Consulting Agreement Between the City of Fort Worth and Samuel Kenneth O'Tool d/b/a ARTworks DFW Page 6 of 19 CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. ii. Artist agrees to and shall release City of and from any and all claims, demands, debts, liens, costs, defects, expenses, actions, and causes of action of whatsoever kind or character arising out of, related to, or resulting from this Agreement and/or Artist's performance under this Agreement, including, but not limited to, any and all claims for property damage, property loss, injury, including, but not limited, to death, and/or intellectual property. b. Intellectual Property Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third -party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or 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 ARTWORK 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. 7.2. Survival This Article shall survive the termination or expiration of this Agreement. ARTICLE 8 OWNERSHIP AND 1NTELLECTUAL PROPERTY RIGHTS 8.1. Title to the Artwork Design All rights, title, and interest to the Artwork Design, except for any ownership rights of copyright, shall immediately transfer to City on the Effective Date of this Agreement, and shall be free and clear of any claims, judgments, and/or liens of whatsoever nature. The Artwork Design shall become property of City, without restriction on future use, except as provided for in this Agreement. Artwork Acquisition and Consulting Agreement Between the City of Fort Worth and Samuel Kenneth O'Tool d/b/a ARTworks DFW Page 7 of I9 8.3 Copyright Ownership, Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole author of the Work for the duration of the copyright. 8.4 Reproduction Rights. a. In view of the intention that the Artwork Design be unique, Artist shall not make any further additional reproductions of the Artwork Design, 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. b. Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Artwork Design, except as those rights are limited by this Agreement. c. Artist understands and acknowledges that City will hire Fabricator to fabricate the Work based on the Artwork Design and deliver and install the Work at the Site under a separate contract. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. d. Artist grants to City an exclusive, absolute, and unrestricted right and license to contract with Fabricator to fabricate the Work as reproductions or as derivative works based on the Artwork Design. City shall own full right and title, excluding any rights of copyright, to any reproductions or derivative works created by City through the Fabricator. e. By execution of this Agreement, Artist grants to City an exclusive, perpetual, and irrevocable license to graphically depict or display the Artwork Design and Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Design 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. £ Artist also grants to City the exclusive, perpetual, and irrevocable right to sublicense the rights granted herein in this Agreement to fabricator without Artist's consent. g. Notwithstanding anything to the contrary, Artist agrees and understands that nothing in this paragraph shall affect or limit City's exclusive, absolute, and unrestricted rights incidental to City's full ownership of the Artwork Design and/or Work to alter, change, modify, destroy, remove, move, replace, operate, maintain, transport, sell or transfer, in whole or in part, the Artwork Design and/or Work when City deems it necessary within its discretion, in order to otherwise exercise City's powers and responsibility in regard to public works and improvements, in furtherance of City's operations or for any other reason. Artwork Acquisition and Consulting Agreement Between the City of Fort Worth and Samuel Kenneth O'Tool d/b/a ARTworks DFW Page 8 of 19 h. Unless notified otherwise by City, Artist shall use Artist's best efforts in any public showing or resume use of reproductions to give acknowledgment to City in substantially the following form: "an original artwork commissioned by and in the public art collection of the City of Fort Worth, Texas." i. 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. j. City is not responsible for any third -party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. ARTICLE 9 ARTIST'S RIGHTS 9.1. Identification. Contract Manager shall include credit to Artist on the Fort Worth Public Art website (www.fwpublicart.org) and a permanent plaque at the site. 9.2. Maintenance. City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work. City shall reasonably assure that the Work is properly maintained and protected, taking into account the maintenance instructions provided by the City -selected fabricator. 9.3. Repairs and Restoration. a. City shall have the right to determine when and if repairs and restorations to the Work will be made. During Artist's lifetime and to the extent practicable, City shall give Artist the right to approve all major repairs and restorations; provided, however, Artist shall not unreasonably withhold approval for any repair or restoration of the Work. Should Artist unreasonably withhold approval of any intended repair or restoration, City shall have the right to make such repair or restoration. To the extent practicable, Artist, during Artist's lifetime, shall be given the opportunity to personally supervise major repairs and restorations and shall be paid a reasonable fee for any such services, provided that City and Artist shall agree, in writing, prior to commencement of any significant repairs and restorations, upon Artist's fee for such services. Should Artist fail to agree to make or supervise the repairs and restorations, City,shall have the right to choose another entity or person to assist with the restoration and/or repairs or make said repairs by City. b. All repairs and restorations shall be made in accordance with recognized conservation standards (in accordance with the American Institute of Conservation (AIC) Code of Ethics and Guidelines for Practice) and/or construction standards, including, but not limited to, any standards set forth by City. Artwork Acquisition and Consulting Agreement Between the City of Fort Worth and Samuel Kenneth O'Tool d/b/a ARTworks DFW Page 9 of 19 c. City may require Artist to submit professional documents supporting Artist's proposal for repairs and restorations prior to commencement of repairs or restorations. d. When emergency repairs are necessary to prevent the loss of or further damage to the Work or to prevent risks to the public, such repairs shall be undertaken or arranged by City without advance notice to Artist, and such repairs shall not be deemed to constitute artistic alteration. 9.4. Alteration of the Work or of the Site. a. In the event that the Work is incorporated into a building, structure or realty, the installation of the Work may subject it to destruction, distortion, mutilation or other modification by reason of its removal. If removal of the Work would damage either the Work or the Site, City shall have the right to remove the Work by any means, including destruction, in performing maintenance, repair, renovation, or reconstruction of the building, structure or in devoting realty to a new use. City may give Artist written notice of its intent to take such action under this paragraph. b. In the event that the Work is freestanding, or incorporated into a building, structure or realty such that it may be removed without damaging or destroying the Work or the building or structure, Artist may be given written notice and ninety (90) days to remove the Work at his or her sole expense. Upon Artist's failure to remove the Work, City shall have the right to remove and dispose of the Work by any means, including its destruction. c. City agrees that it will not willfully destroy, damage, or modify the Work, except as provided in paragraphs a. and b. above. d. In the event the Work is substantially damaged or altered, City shall no longer represent the Work as that of Artist if Artist gives written notice to City that it is the position of Artist to deny authorship on the grounds stated in this paragraph. e. City shall, at all times, have the right to move the Work, or remove some or all of them from public display. City shall also have the right to sell or trade the Work. 9.5. Permanent Record. City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 9.6. Artist's Address. Artist shall notify City of changes in the address set forth in Article 13. 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 of Article 9 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. Artwork Acquisition and Consulting Agreement Between the City of Fort Worth and Samuel Kenneth O'Tool d/b/a ARTworks DFW Page 10 of 19 9.7. Additional Rights and Remedies. Nothing contained in this Article 9 shall be construed as a limitation on such other rights and remedies available to Artist under the law, which may now or in the future be applicable. ARTICLE 10 ARTIST AS INDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of City. Artist shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of his/her officers, agents, employees, and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artist, his/her officers, agents, employees and subcontractors, and doctrine of respondeat superior has no application as between City and Artist. ARTICLE 11 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 parry's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach, or other matter in question that may arise out of or in connection with this Agreement. If the Parties fail to resolve the dispute within sixty (60) calendar days of the date of receipt of the notice of the dispute, then the Parties may submit the matter to non -binding mediation upon written consent of the authorized representatives of both parties in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code, then in effect. Request for mediation shall be in writing, and shall request that the mediation commence not less than fifteen (15) or more than forty-five (45) calendar days following the date of request, except upon Agreement of the Parties. In the event City and Artists are unable to agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty (30) calendar days following the date of the request for mediation, then all the conditions precedent in this article shall be deemed to have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation shall be enforceable as a settlement agreement Artwork Acquisition and Consulting Agreement Between the City of Fort Worth and Samuel Kem�eth O'Tool d/b/a ARTworks DFW Page 11 of 19 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. ARTICLE 12 MISCELLANEOUS 12.1. Compliance. Artist shall comply with all Federal, State and City statutes, ordinances and regulations applicable to the performance of Artist services under this Agreement. 12.2. 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. 12.3. 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. 12.4. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants, and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 12.5. 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. 12.6. Successors and Assigns. Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and its respective successors and permitted assigns. 12.7. No Third -Party Beneficiaries. Artwork Acquisition and Consulting Agreement Between the City of Fort Worth and Samuel Kenneth O'Tool d/b/a ARTworks DFW Page 12 of 19 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. 12.8 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. 12.9. 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. 12.10. 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 which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 12.11. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 12.12. Artist's Address. Artist shall notify the Contract Manager of changes in address. 12.13. Surviving Covenants. The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of Artist. 12.14. Right to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Conceptual Design (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 Tenn of this Agreement and for three (3) years thereafter, Artist shall make all Records available to City on 1000 Throckmorton Street, Fort Worth, Texas or at another location in City acceptable to both parties following reasonable advance notice by City and shall otherwise cooperate fully with City during any audit. Notwithstanding anything to the contrary herein, this Article 16.14 shall survive expiration or earlier termination of this Agreement. Artwork Acquisition and Consulting Agreement Between the City of Fort Worth and Samuel Kenneth O'Tool d/b/a ARTworks DFW Page 13 of 19 12.15 Survival Provision The provisions contained in Articles 2 (Acquisition of the Artwork Design), 6 (Warranties), 7 (Indemnity and Release), 8 (Ownership and Intellectual Property Rights), 9 (Artist's Rights), and 10 (Artist as Independent Contractor) shall survive the termination or expiration of this Agreement. 12.16 Counterparts and Electronic Signatures This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 12.17 Time Extensions and Force Majeure The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. City or Artist, as appropriate, shall grant a reasonable extension of time to the other party if conditions beyond the parties' control or Acts of God, flood, riot, civil insurrection, labor strikes, or orders of local or federal government render timely performance of the parties' services impossible or unexpectedly burdensome. The party suffering the impossibility or burdensome conditions must inform the other in writing within ten (10) business days of the onset of such performance delay, specifying the reasons therefore. Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control shall not be considered a breach of this Agreement; provided, however, that such obligations shall be suspended only for the duration of such conditions. ARTICLE 13 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: 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 Artwork Acquisition and Consulting Agreement Between the City of Fort Worth and Samuel Kemleth O'Tool d/b/a ARTworks DFW Page 14 of 19 Arts Council of Fort Worth &Tarrant County 1300 Gendy Street Fort Worth, Texas 76107 2. ARTIST Samuel Kenneth O'Toole 3308 W. 4'1' Street Fort Worth, Texas 76107-2117 IN WITNESS HEREOF, the Parties hereto have executed this Agreement as of the Effective Date. CITY OF FORT WORTH by Fernando Costa Assistant City Manager APPROVED AS TO FORM AND LEGALITY: Tyler F. ,W, Attorney ATTESTED BY: 2 �Vlar� J. Kayser City Secretary Contract Authorization: No M&C Required r SAMUEL KENNETH O'TOOLE d/b/a ARTworks DFW u Artwork Acquisition and Consulting Agreement Between the City of Fort Worth and Samuel Kenneth O'Tool d/b/a ARTworks DFW Page 15 of 19 Concept Narrative Dreams at 100 Fathoms By Ken O'Toole My vision for the mosaic mural at Marine Park Family Aquatic Center is rooted in my own childhood experience of public pools. The joy and excitement of spending an afternoon around the water was not just about splashing my sisters or trying out the high board. It was also about a place where my imagination took flight. Regardless of how many of my friends or other kids were at the pool, or how loud the crowd became, I could slip under the water into a silent dream-like world. There, I was a famous deep sea explorer, a treasure hunter looking for sunken ships. I was a spaceman visiting a hostile environment. I cannot have been the only child who thought like that, and I am sure those types of dreams and imaginings are common to all children. Dreams at 100 Fathoms depicts the view from a diver's eyes as they look toward the surface. The sun reflects down through the waters' depths. Although the darker figures in the distance are indistinct, they speak of adventure, intrigue and the mysterious future. Though this is assuredly abstract, I believe it embraces the spirit and purposes of the Marine Park Family Aquatic Center. Artwork Acquisition and Consulting Agreement Between the City of Fort Worth and Samuel Kenneth O'Tool d/b/a ARTworks DFW Page 17 of 19 Exhibit B Site Artwork Acquisition and Consulting Agreement Between the City of Fort Worth and Samuel Kenneth O'Tool d/b/a ARTworks DFW Page 18 of 19 Exhibit C TE�AS_�_t]t7'1FICATE DF E�I�.�t^11P'I'I(3N 1 4Jann art a%l'ml5tit�n lnYtn pSil}'tltent iil suleti and. 4rSC tiaXC;s` ti31" the ptliti}ttLSC itt itii,ll7tL' IteI77w descrrE7{,d bClow or on (he atmehtxl miler or invoice, Llest'1 iplaun taf Items {'nr an attached rrtler tir hn•aii:ej f;� fie. furehttsed; claim d7i.a cxtn7ptittft lirr t}ie litllc�ti^np; rc��;c7n: Nata�e ofF_.tietn)st Organizutnn: C.'1'I'1' C)F FCIIRT W(�It`1'1[,'1'E �:�a TEXAS SALES AND USE TAX PERIMIT NUMBER 145' (i00052l1-6 f'eajed-i fi)r �t^hieh mattrials anti sstppities are purch:<scd: I undcr;�ttt€7€i 117ttt I i4°ill lstz linhlu ii7r faynacnt c7f �alf~s ttt:�, c4^hicls ma}' herttmc tluc #€+r ft7lllare to ettmpl}� ti�7tli the pravisit>t7s t f €lte Mute, cit}, and'nr mctr ry sale,R ttnd COW (ttx laws and c:omptruller rules regarding exempt puttihmcs. f_iabilit}' fiir (lie Iax will be determintA by the pricy paid r the taxable items purchased or the tbir market rental value for the peri A oftime. uscxl_ 1 understand that it is a inisdtaneuncr to love an cxcntp#iott certificate to the stiller #i7r t^ttabte i[atns which 1 ktasxu', ai Iftc; time ttfthc ptsrtbasc, teill Ese used in a ra�unncr crtltc� thua7 If>at cxprcaast_d in this Cc`iti6et�te and, upon cons ietion, may be fined up to $500 pet otTe-nAbv:e. �t`i . K�xeli5pt Status Ilue to p3esnC,��wennne3atal Lntity 1'urc1711.ser: 1='f'f'1' Ali k(]RT S'dC�RTII� TES,#5 Street Address-, 1000 THROC1 NIOR`f'Di\ ;STREET City, State, Zip Code: FORT WORTH, TEXAS 76102 Sip Fierc; Crate: .tune 11,?f1(I�7 1'hanc: Sl"-t)2-1t517 l"his a:ertific,tit doves tSt}( requarc a nuatihcr to bt t•;tlk1^ 5u[es and use tax "cxctnp(it?n tstinsbet�'. car.'€a�: �xetttlit°' nurnhcrs dii ❑ot esi�t. '1'Jtis ccriific:c7tc shtittlil be furnished to thesupplier, C)u runsend the donslslctcil Cc°iiifacate to the C: trtttptttc+ller en LU s ,rtci;ouuts. Artwork Acquisition and Consulting Agreement Between the City of Fort Worth and Samuel Kenneth O'Tool d/b/a ARTworks DFW Page 19 of 19