HomeMy WebLinkAboutContract 44548CITY ��CR�iiARS`l
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AGREEM�NT BETWEEN TH� CITY OF FORT WORTH
AND BALL-NOGUES DESIGN STUDIO FOR CONCEPTUAL DESIGN
PROPOSAL FOR PUBLIC ART FOR THE NORTH BEACH CORRIDOR
This Agreement is entered into this �day of ��i,� ��V��yL , 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 Ball-Nogues Design Studio, LLC, a Limited Liability
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Company, located at 2018 North Vine Street, Los Angeles, CA 90068, and acting by and through Brenjanrin �
B�lk, its duly authorized inember. City has designated the Arts Council of Fort Worth and Tarrant County,
Inc., to manage this Agreeinent on its behal£ The Conh�act 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 envu�onment for Fort
Worth residents, to commemo�•ate the City's rich cultural and ethnic diversity, to integrate the design wocic of
artists into tlie developinent of the City's capital i�ifrastructure improveme�its, and to proinote tourisin and
economic vitality in the City through the artistic design of public spaces;
WHEREAS, City is designing and constructing street improvements in the North Beach Street
Corridor, which includes N. Beach Street froin Golden Triangle to Keller Hicks; Keller-Hicks to Tiinberland;
Vista Meadows to Slu•iver Road; and Keller-Hicks Road from Alta Vista Road to Park Vista Boulevard;
WHEREAS, City has set aside funds to design and coininission public art/design enhanceinents in
conjunction with street improvements projects from the 2008 Capital Improvements Program and the 2007
Critical Capital Needs Prograin;
WHEREAS, a public art consultant conducted a coimnunity workshop that explored the identity of
the community along with public art and design enhancement opportunities along the North Beach Corridor
that reflect the enviromnent, coimnunity, or other themes appropriate to the site, and created the North Beach
Street Corridor Public Art Recommendations docuinent;
WHEREAS, the North Beach Corridor project was identified in the fiscal year 2013 Annual Work
Plan and the City has allocated funds for design, fabrication and installation of public art at this Site based on
the North Beach Street Corridor Public Art Recoimnendations;
WHEREAS, the Foct Worth Ai•t Commission ("FWAC") has overseen an artist selection process in
accordance with the guidelines in the Fort Worth Public Art Master Plan;
WHEI2EAS, the project manager, in consultation with an FWAC Art Commissioner and an arts
professional reviewed qualified artists fi�om the Fort Worth Public Art pre-qualified list, resulting in the
recommendation of several artists as finalists for the Proiect: �-----�- _"� i
Agreement Between the City of Fort Worth and
Ball-Nogues Design Studio for Preliminary Design of Public
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Page 1 of 18
WHEREAS, Artist has been selected as one of the finalist for the Project and is being aslced to
develop a conceptual proposal and submit that proposal for review and consideration by the Artist Selection
Panel;
WHEREAS, the City intends to select one proposal for the Project based on the submissions by the
individual artists with no guarantee that any particular artist or proposal will be selected to proceed to the
next phase of the Project;
WHEI2EAS, City and Artist wish to set out the terms and conditions under which said Work shall
be designed to promote the integrity of Actist's ideas and statements as represented by the Work.
NOW, THEI2EFORE, 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 Ball-
Nogues Studio for Proposal Design of public art for the Site.
1.2. Artist - Means and includes Ball-Nogues Design Studio, LLC and/or its partners,
members, managing members, officers, managers, proprietors, directors, employees, representatives, agents,
subsidiary organizations, parent organizations, successor entities, assigns, predecessors, stocicholders,
administrators, subartists, contractors, and related companies.
1.3 Artist Selection Panel — Means and includes a panel compt•ised of arts professionals,
community stalceholdets, City staff representatives, City Council Member, and a FWAC representative.
1.4. Contrlct Manager — Means and includes the Arts Council of Fort Worth and Tarrant
County, Inc., and/or its officers, directors, einployees, 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 D�te — Means and includes the date represented in the first paragraph of this
Agreeinent, which shall be the official date of execution of this Agreement.
1.7. Parties — Means and includes City and Artist.
1.8. Conceptual Design Proposal — Means all preliminary drawings, slcetches, narrative
descriptions, budget estimates, and the like that are created by Artist in connection with this Agreeinent
between Artist and City for the Work.
1.9. Conceptual Design Proposal Deliver�bles — Means and includes those iteins set forth in
Article 2.4 of this Agreeinent that Artist is required to submit to City for its review and approval.
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Ball-Nogues Design Studio for Preliminary Design of Public Art for North Beach Corridor
1.10. Project — Means and includes the capital improvement or public art development
u�ldectalcing of City for which Actist's services ace to be pcovided puisuant to this Agreement.
1.11. Project Stakeholders — Means and includes the appropriate City Council Member(s), and
their appointed community representatives and the FWAC's appointed representative and others as may be
appropriate.
1.12. Project Consultant — Means and includes tl�e design firm/professional(s) hired by City to
design the Site.
1.13. Site — Means the North Beach Street Corridor, which includes N. Beach Street fi•om Golden
Triangle to Keller Hicks; Keller-Hicks to Timberiand; Vista Meadows to Slu•iver Road; and Keller-Hicks
Road fi•om Alta Vista Road to Pack Vista Boulevard, which a�•e more particularly described on E:chibit "A,"
attached hereto and incorporated herein by reference for all purposes.
1.14. 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
PURPOSE SCOPE OF SERVICES AND DELIVERABLES
2.1. Purpose. The purpose of this Agreement is to solicit a conceptual artwork design proposal from
Artist for review by the Artist Selection Panel for this Project and ultiulately select an artist to proceed to the
next phase of this Project, which may include preliminary and final design development and commission of
the Work. The City does not guarantee that Artist will be selected to proceed to the next phase of the Project
and specifically reserves the right to reject all proposals or select more than one proposal.
2.2. Scope of Services.
a. Artist shall perform all seivices and will furnish all supplies, materials, and equipment as necessaiy
for developing a Conceptual Design Proposal of the Work and for providing the Conceptual Design
Proposal Deliverables. Services shall be performed in a professional manner and in strict compliance
with ail terms and conditions in this Agreement.
b. Artist shall travel to Fort Worth to attend the orientation meeting at Heritage Church of Christ, 4201
Heritage Trace Pkwy Fort Worth, TX 76244, on June 11 `�' at 3:30pm; and,
c. Artist shall prepare and present a Conceptual Design Proposal to the Artist Selection Panel at a
mutually agreeable date and time.
d. Artist shall travel to Fort Worth to present his/her Conceptual Design Proposal to the Artist Selection
Panel at a mutually agreeable date and time.
e. Artist shall allow video recording and photography of his/her Conceptual Design Proposal
Presentation to the Artist Selection Panel.
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Ball-Nogues Design Studio for Preliminary Design of Public Art for North Beach Corridor
£ Artist will meet via conference call with the project manager, FWAC's appointed representative, and
arts professional for the purpose of a design progress report to receive feedback on their initial
concepts and have the opportunity to ask questions.
g. Artist shall make 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 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.
2.4. Conceptual Design ProUosal Deliverables
a. Artist shall provide services and all supplies, materials, and equipment necessary to provide certain
deliverables, as set forth in this subsection to City for consideration.
b. Conceptual Design Proposal Deliverables shall consist of the following:
i. A written narrative description of the Artist's concept, proposed materials, fabrication and
installation methods, timeline for completion and maintenance requirements;
ii. Two-dimensional rendering(s) of the Artist's concept, mounted on a rigid board such as
form core board 20" x 30" an�l supplied as both high and low resolution digital files; and no
more than five images of examples of relevant projects by the Artist, presented within a
power point presentation;
iii. Installation diagram showing the concept's relationship to the Site, including approximate
weight of the Work, proposed attachment method(s), and location(s) for lighting, if any;
iv. A preliminaiy 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 $750,000, which
includes all costs for materials, labor, fabrication, delivery, installation, insurance,
transpoctation, Artist's fee, and all other associated costs for the Work including, but not
limited to, lighting and travel. Budget estimate should also include material or fabrication
samples and/or prototype inodels for the Work that show the size and placement of the Work
in relation to the Site, as appropriate; and
v. Material sample(s) that illustrate what the proposed Worlc would be made from, showing
durability, texture, color, etc., as appropriate. No models or prototypes shall be presented to
the Artist Selection Panel.
c. Artist shall submit an electronic version of his/her initial concept sketches for the Conceptual Design
Proposal for the purpose of a design progress report as described in 2.2.£ These sketches shall be
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Ball-Nogues Design Studio for Prelirninary Desigu of Public Art for North Beach Corridor
submitted to Contract Manager no later than 12:00 Noon (Central Time), July 15th (at least two days
in advance of the progress report date).
d. Artist shall submit an electronic version of the Conceptual Design Proposal Deliverables to Contract
Manager no later than 12:00 Noon (Central Tiine), five days in advance of the presentation date.
e. The initial concept sketches and the Conceptual Design Proposal Deliverables shall be sent in one of
the following manners:
i. Via email to alabbe@fwpublicart.org_(9 MB size limit per each email)
ii. Via an FTP site, such as www.yousendit.com or dropbox.com
iii. Mailed or hand delivered on a CD (»ot DVD) to Fort Worth Public Art, Attention: Alida
Labbe, 1300 Gendy Street, Fort Worth, TX 76107.
2.4. Notification of Selection
a. The Contract Manager shall notify the Artist, in writing, of the final outcome of the artist selection
process, i�.e., whether or not the Artist was selected to proceed to the next phase of the Project, within 15 days
of the FWAC's selection of the Project artist.
2.5 Alternate Artist
a. Any artist not selected to proceed to the next phase of the Project may be designated as an alternate
for a period of one year from the date the City sends final payment to Artist under this Agreement. The
Artist shall not receive any additional compensation for such designation; however, such designation does
affect ownecship rights to the Artist's Conceptual Desigu Proposal, which is set forth in more detail Article 5.
ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1. Compensation.
Totai compensation to Artist under the Agreement shall be FOiJR THOUSAND, ONE HUNDRED FIFTY
DOLLARS AND NO CENTS ($4,150.00), which shall constitute full compensation for any and all costs
associated with the Agreement, including, but not limited to, ail travel expenses and services performed and
inaterials furnished by Artist under this Agreement. Artist and City inay ainend this Agreement to allow for
additional payinent if additional services are required.
3.2. Payment Schedule
a. City agrees to pay Artist in the following installments set forth below, each installment to represent
full and final, non-refundable payment for all services and materials provided prior to the due date thereof:
i. ONE THOUSAND FIVE HLTNDRED DOLLARS AND NO CENTS�$1,500.00� upon
attendance of the artist orientation Ineeting.
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Ball-Nogues Design Studio for Preliminary Design of Public Art for North Beach Corridor
ii. TWO THOUSAND ONE HUNDRED FIFTY DOLLARS AND NO CENTS ($2,150.00�
within thirty (30) calendar days after Artist submits all of the Conceptuai Design Proposal
Deliverables required under Article 2.4 of this Agreement and makes a presentation of the
Conceptual Design Proposal to the Artist Selection Panel.
iii. FIVE HIJNDRED DOLLARS AND NO CENTS ($500.00� within thirty (30) calendar days
after Artist is notified as to the final outcome of the artist selection process (r�,e., whether ar
not the Artist was selected to proceed to the next phase of the Project after FWAC's
selection of the Project artist).
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 tl�e "Texas Certificate of Exemption," in substantially the same
form as that attached hereto as EYhibit "C" for use by Artist iu the fulfillment of this Agreement.
3.4. Actist'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 Actist's agents, consultants,
and/or einployees necessary for the proper performance of the services required under this Agreeinent.
ARTICLE 4
TERM AND TERMINATION
4.1. Term
This Agreement shall be in effect froin the Effective Date and, unless terininated earlier pursuant to such
provisions in this Agreement, shall extend until final payment to Artist by City.
4.2. Gratuities
City may cancel this A�reeinent if it is found that gratuities in the form of entertainment, gifts, or otherwise
were offered or given by Artist or any agent or representative to any City or Contract Manager official or
employee with a view toward securing favorable treatment with respect to the awarding, amending, or
making of any determinations with respect to this performance of this Agreement.
4.3. Terinination for Cause
The City may terminate this Agreeinent for cause in the event Artist fails to perform in accordance with the
requireinents contained herein. In such event, City shall give Artist written notice of Ai•tist's failure to
perform, giving Artist seven (7) calendar days to come into coinpliance with the Agreement. If Artist fails to
come into compliance with this Agreement, City shall notify Artist in writing, and this Agreement shall be
terminated as of the date of such notification. In such event, Artist shall not be entitled to any additional
coinpensation.
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Ball-Nogues Design Studio for Preliminary Design of Public Art for North Beach Corridor
4.4. Termination for Convenience
a. The services to be perfonned under this Agreement may be terminated by either party, subject to
written notice submitted thuty (30) calendar days before termination.
b. If the termination is for the convenience of City, City shail pay Artist for services actually rendered
up to the effective date of termination.
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 suin equal to all payinents (if any) inade to the Artist pursuant to this Agreement prior
to the effective date of termination.
ARTICLE 5
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
5.1 Non-Selected Artists
a. If Artist is not selected to proceed to the next phase of the Project as the Project artist, then, upon
payinent in full to the Artist, the Conceptuai Desi�n Proposal and all other work product under this
Agreement shail becoine the property of City for a period of one year from the date the City sends
final payment to Artist under this Agreement. Artist shall retain copyright and other intellectual
property rights in and to the Conceptual Design Proposai.
b. In view of the intention that the Conceptual Design Proposal be unique, Artist shall not make
any additional exact duplicate reproductions of the Conceptual Design Proposal, nor shall
Artist grant permission to others to do so except with the express written permission of City.
c. City is not responsible for any third-party infringement of Artist's copyright and not responsible for
protecting the intellectual property rights of Artist.
d. If, within the above-stated one-year period, the City decides to select the Artist to proceed to the next
phase of the Project as the Project artist and Artist agrees to such selection, then the rights set forth in
Article 5.2 for the selected artist shall supersede and govern any ownership and intellectual property
ri�hts associated with or related to this Agreement.
5.2 Selected Artist
a. If Artist is selected to proceed to the next phase of the Project as the Project artist, then the
ownership and intellectual property rights set forth in this subsection shall apply.
b. Upon payment in full to Artist, the Conceptual Design Proposal 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 Conceptual
Design Proposal and/or Work. Artist grants to the City an exclusive, perpetual, irrevocable, and
royalty free license to graphically depict or display the Conceptual Design Proposal and/or Work for
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Ball-Nogues Design Studio for Preliminary Design of Public Art for North Beach Corridor
any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or
display of the Conceptual Design Proposal and/or Work intended to promote or benefit City, its
public seivices 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.
c. In view of the intention that the Conceptual Design Proposal and the Worlc be unique, Artist
shall not make any additional exact duplicate reproductions of the Conceptual Design Proposal
or the Worlc, nor shall Artist grant permission to others to do so except with the express
written permission of City. However, nothing herein shall prevent Az-tist from creating
future artworlcs in Artist's mannei and style of artistic expression.
d. Artist reserves every right available under the Federal Copyright Act to control the inaking and
dissemination of copies or reproductions of the Conceptual Design Proposal and/or Worlc, except as
those rights are limited by this Agreement. If Artist is selected to proceed as the Project artist, City
may malce and disseminate photo�raphs, drawin�s, and other two-dimensional reproductions of the
Conceptual Design Proposal and/or Work and accompanying materials for any inunicipal purpose.
All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially
in the fol(owing form: "�O date, Artist's name."
e. Nothing in this Agreement shall prevent the Artist from using images of the Conceptual Design
Proposal and/or Work for marketing and promotional purposes in connection with the Artist's
business.
f. City is not responsible for any third-party infi•ingement of Artist's copyright and not responsible for
protecting the intellectual property rights of Artist.
ARTICLE 6
WARIZANTIES OF TITLE AND COPYRIGHT
a. Artist represents and warrants that:
i. Conceptual Design Proposal and/or Wocic shall be the original product of the Artist's sole
creative efforts.
ii. Conceptual Design Proposal and/or Work is and will be unique and original, and does not
infi•inge upon any copyright or the rights of any person;
iii. Artist has not sold, assigned, transferred, licensed, granted, encuinbered, or utilized the
Conceptual Design Proposal and/or Worlc or any copyright related thereto that inay affect or
impair the rights granted pursuant to this Agreement;
iv. Conceptual Design Proposal and/or Work (or duplicate thereo� have not been accepted for
sale elsewhere;
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Ball-Nogues Design Studio for Preliminary Design of Public Art for North Beach Corridor
v. Artist has the full power to enter into and perform this Agreement and to make the grant of
rights contained in this Agreement; and
vi. All services performed hereunder shall be performed in accordance with all applicable laws,
regulations, ordinances, etc., and with all necessaiy care, skill and diligence.
ARTICLE 7
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 exciusive 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 shail 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 8
INDEMNIFICATION
8.1. GeneralIndei�itv
a. ARTIST COVENANTS AND AGREES TO AND DOES HEItEBY 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 DEI'ENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS
OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIlVIITED TO, THOSE FOR PROPERTY
LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY,
LOST PROI'ITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT
NOT LIMITED TO, DEATI� TO ANY AND ALL PERSONS, OR OTHER HARM FOR W�IICH
RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER HIND OR CHARACTER,
WIIETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM THE ANY ACTS,
ERRORS, OR OMMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTISTS AND CONTRACTORS
AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIl2ECTORS, MEMBERS,
PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION,
PERI�'ORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF T�IIS
AGREEMENT.
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Ball-Nogues Design Studio for Preliminary Design of Public Art for North Beach Corridor
b. Artist agrees to and shall release City fi•om 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.
8.2. Intellectual Property
Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any
other regulations, including, but not limited to, the assuinption of any and all responsibilities for paying
royalties that are due for the use of other third party copyrighted works by Artist. City expressly assuines 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
AGI2EED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS
CITY I'ROM 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. This intellectual property indeinnification provision shall survive the
termination or expiration of this Agreeinent.
ARTICLE 9
MISCELLANEOUS
9.1. Compliance
Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the
perforinance of Artist's services under this Agreement.
9.2. Entire Agreement
This writing emboclies the entire agreement and undeistanding 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
inerged herein and superseded hereby.
9.3. Amendments
No alteration, chan�e, modification, ar 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.
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9.4. Waiver
No waiver of perforinance 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.
9.5. 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.
9.6. Successors and Assigns
Neither party hereto shall assign, sublet, or transfer its interest herein without prior written consent of the
other party, and any atteinpted assignment, sublease, or transfer of all or any part hereof without such prior
written consent shall be void. This Agreeinent shall be binding upon and shall inure to the benefit of City
and Artist and their respective successors and permitted assigns.
9.7. 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.
9.8 Severabilitv
If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality,
and enforceability of the reinaining provisions shall not in any way be affected or impaired.
9.9. Force Majeure
It is expressly understood and agreed by the Parties to this Agreement that, if the performance of any
obligations hereunder is delayed by reason of war; civil cominotion; 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 circuinstance is siinilar 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
tiine equal to the period such party was delayed.
9.10. Contract Construction
The Parties acknowledge that each party and, if it so chooses, its counsel, have reviewed and revised this
Agreement and that the narinal rule of construction to the effect that any ambiguities are to be resolved
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against the drafting party must not be employed in the interpretation of this Agreement or any amendments
or exhibits hereto.
9.1 l. Fiscal Funding Out
If, for any reason, at any tiine 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
terininate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to
Artist of wi•itten notice of City's inteiition to terminate or (ii) the last date foi• which funding has been
appropriated by the Fort Worth City Council for the purposes set forth in this Agreement.
9.12. Ca tp ions
Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part
of this Agreement.
9.13 Ri�ht to Audit
Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the
Worlc (collectively "Records") at any time dlu�ing the Term of this Agree�nent and for three (3) yeacs
thereafter in order to determine compliance with this Agreement. Tlu•oughout the Term of this Agreement
and for three (3) years thereafter, the Artist shall lnake all Records available to the City at 1000
Throcicinorton Street, Fort Worth, Texas or at another location in the City acceptable to both par•ties
following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any
audit. Notwitl�standing anything to the contrary herein, this Article shall sm•vive expiration or earlier
termination of this Agreement.
9.14. Certified MBE/WBE.
If applicable, Artist is encouraged to malce its best effort to become a certified Minority Business Enterprise
(MB�) or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is accepted
by the City undel• the City's Bl�siness Divecsity E»tecprise Ordinance.
9.15 Survival Provision
The provisions contained in Articles 5(Ownership and Intellectual Property Rights), 6(Warranties of Title
and Copyright), 7(Artist as an Independent Contractor), and 8(Indemnification) shall survive the
tennination or expiration of this Agreeinent.
9.16 Counterparts and Electronic Signatures
This Agreement inay be executed in several counterparts, each of which will be deemed an original, but all
of which together will constitute one and the saine instruinent. A signature received via facsiinile or
electronically via email shall be as legally binding for all purposes as an original signature.
917. Time Extensions
The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement.
Agreernent Between the City of Fort Worth and Page 12 of 18
Ball-Nogues Design Studio for Preliminary Design of Public Art for North Beach Corridor
ARTICLE 10
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 inay be, if delivered personally or sent by registered or certiiied inail, 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 Throcicmorton Street, Third Floor
Fort Worth, Texas 76102
Copies to: Sarah Fullenwider, City Attorney
Office of the City Attorney
City of Fort Worth
1000 Throcicmorton 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
2. ARTIST Benjamin Ball, Member
Ball-Nogues Design Studio, LLC
2018 North Vine Street
Los Angeles, CA 90068
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
by:
DESIGN STUDIO, LLC
�������- ���fo✓� �Q���S'
Member
Agreement Between the City of Fort Worth and Page 13 of 18
Ball-Nogues Design Studio for Preliminary Design of Public Art for North Beach Corridor
arrRov�v as To ro�
AND LEGALITY:
, � �- -�,�,� L�
.,.�a't�-....
Contract Authorization:
M&C — No M&C Required
. ?, �
OFFICIAL itEC06d�
CI'Tlf SECR6ETAR�
f�1�n �ii1M� ll �g A �
V..�—�_�e_ ____— —:.,_--z —
Agreement Between the City of Fort Worth and Page 14 of 18
Ball-Nogues Design Studio for Preliminary Design of Public Art for North Beach Corridor
Tyler F. W�llach
A......,4....4 /7:4.. A 44...•«l...
Exhibit A: Site
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Agreement Between the City of Fort Worth and Page 15 of 18
Ball-Nogues Design Studio for Preliminary Design of Public Art for North Beach Corridor
f r_, d i�
f.
FORT WORTH PUBLIC ART PROJECT BUDGET
Please complete this form and attach a signed receipt or estimate complete with per unit
costs (no lump sums) for all items designated with an asterisk('). Cost increases must
also have a writlen estimate attached.
ARTIST'S FEE
TRAVEL
(For artists who live more than 50 miles from Fort Worth)
Airfare
Car Rental
Per Diem Expenses at $_ per day
Mileage at $_ per mile
INSURANCE
AutolHired Vehicle Liabilily
General Liability for Artist / Subcontraciors
Worker's Comp. / Employers Liability
Oiher, as applicable
ADMINISTRATIVE EXPENSES
Phone/Fax
Delivery/Shipping (for correspondence, samples, models, drawings etc)
Reprographic Service
Supplies
PROFESSIONAL CONSULTANT FEES
(If applicable, drawing must be signed and sealed by a professional registered to practice
in the State of Texas)
Architect*
Structural Engineer*
Electrical Engineer*
Conservator�
Photographer (for documentation of completed work)'
Other*
MATERIALS
(Please attach a complete list of materials. Itemize all anticipated aspects and
components with per unit cost estimates)
Materials' Total
FABRICATION COSTS
(Include and itemize all portions of subcontracted work and work to be completed by
artisL)
ArtisPs Labor (_ hours at $_ per hour) Total
Subcontracted Labor" (Total)
Facilily/Equipment Rental (used exclusively for this project) related to fabrication
SITE PREPARATION
(Do not include costs covered by FWPA, City of Fort Worth or athers)
Test Drilling'
Removal'
Landscaping/Irrigation'
Electrical Modifications*
Water Work/Mechanical Devices
Other`
(Revised May 2011)
Agceement Between the City of Fort Worth and Page 16 of 18
Ball-Nogues Design Studio for Preliminary Design of Public Art for North Beach Corridor
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Agreement Between the City of Fort Worth and Page 17 of 18
Ball-Nogues Design Studio for Prelimina�y Design of Public Art for North Beach Corridor
Exhibit C: S�les Tax Exemption
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Agreement Between the City of Fort Worth and Page 18 of 18
Ball-Nogues Design Studio for Preliminai•y Design of Public Art foi• Noi•tli Beach Corridor