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HomeMy WebLinkAboutContract 44698 (2)CCONTRr�rsECACT NO.RET RO.Y414/it AGREEMENT BETWEEN THE CITY OF FORT WORTH AND ERIC ELEY FOR PRELIMINARY DESIGN OF PUBLIC ART FOR ROSEN PARK This Agreement is entered into this 1 day of / }l; �( l; ;, `;'1 , 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 Eric Eley, and individual, of 631 N Winnetka Avenue, Dallas, Texas 75208. 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 Artist 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, the Fort Worth Public Art Program is implementing a community -nominated public art initiative known as "Community ID: Public Art in Neighborhoods" ("CID") per the recommendations and guidelines in the Long -Range Public Art Plan for the Water Fund (adopted by the Fort Worth City Council on May 9, 2006), and as set forth in the Fort Worth Public Art Master Plan (adopted by City Council in 2003); WHEREAS, public art funds for the Project have been allocated from the Public Art Fund, and the Project was included in the Fort Worth Public Art Fiscal Year 2013 Annual Work Plan and Budget, adopted by the Fort Worth City Council on October 16, 2012 (M&C C-25920), as part of the City's agreement with the Contract Manager for administration of the public art program; WHEREAS, on June 13, 2011, the Fort Worth Art Commission ("FWAC") approved a review panel's recommendation to award a CID project at Rosen Park, which was nominated by the Community Group; WHEREAS, Artist was competitively selected through a proposal -based process, outlined in the Fort Worth Public Art Master Plan, conducted by the Contract Manager with oversight of the FWAC; WHEREAS, on April 15, 2013, the FWAC approved the artist selection panel's recommendation of Artist based on his proposal; WHEREAS, the selection panel recommended that Artist develop his proposal concept further to increase its aesthetic impact on the Site; Agreement between City of Fort Worth and Eric Eley for Preliminary Design of Public Artwork for Rosen Park OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX 1 of 21 RECEIVED AUG o 9 2D13 1.6. Community Stakeholders — Means and includes representatives of the North Beverly Hills Neighborhood Association. 1.7. Effective Date — Means and includes the date represented in the first paragraph of this Agreement, which shall be the official date of execution of this Agreement. 1.8. Parties — Means and includes City and Artist. 1.9. 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 review and approval. 1.10. Project — Means and includes the capital improvement/public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement. 1.11. Site — Means and includes Rosen Park at 2300 McCandless Street, Fort Worth, Texas, 76106, which is more particularly described in Exhibit "B," attached hereto and incorporated herein by reference for all purposes. 1.12. Work — Means and includes the finished object(s) of art and design that are the subject of this Agreement, or any intermediary stage of completion of such work. ARTICLE 2 SCOPE OF SERVICES 2.1. General. (a) Artist shall perform all services and will furnish all supplies and materials as necessary for developing the Preliminary Design of the Work and for providing the Preliminary Design Deliverables. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. (b) Artist shall design a meaningful, impactful, and unique Work utilizing the Artist's Conceptual Design that was based on the "Golden Section." The "Golden Section" is a ratio between two portions of a line, or the two dimensions of a plane figure, in which the lesser of the two is to the greater as the greater is to the sum of both: a ratio of approximately .618 to 1.000. (c) Artist shall explore accessibility of the Work within the confines of the Americans with Disabilities Act of 1990, as amended. (d) Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and input from Community Stakeholders and approval by City as set forth in this Agreement. (e) The location(s) at the Site where the Work will be installed shall be mutually agreed upon by City and Artist. (f) Artist, upon request of Contract Manager, shall provide information and/or attend meetings with appropriate City staff for purposes of risk assessment, safety review, sighting of the Work, and permitting. Agreement between City of Fort Worth and Eric Eley for Preliminary Design of Public Artwork for Rosen Park 3 of 21 (i) (b) After presenting to the FWAC for initial input, Artist shall meet with the designated Project Stakeholders, 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. (c) Artist shall then present the Preliminary Design to the FWAC for approval at a regularly scheduled FWAC meeting. (d) City shall notify Artist of its approval, or disapproval, of the Preliminary Design within thirty (30) business days of Artist's presentation to the FWAC. (e) If City disapproves of the Preliminary Design, either in whole or in part, then City shall inform Artist of each revision to be made to the Preliminary Design. City may require Artist to make such revisions to the Preliminary Design as City deems necessary in its sole discretion and/or 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. (f) Artist shall have thirty (30) calendar days from the date City informed Artist of the revision(s) to present the revised Preliminary Design in conformance with City's requirements. (g) If City disapproves of the resubmitted Preliminary Design, any further Preliminary Design resubmissions will be by mutual agreement of the Parties and subject to the procedures and terms in this Article. If the Parties desire not to continue with the resubmission process, then this Agreement will automatically terminate, with payment for work performed per the payment schedule in Article 3 up through the date of termination. (See Article 4.4.d) (h) Upon City approval of the Preliminary Design, any revisions made to a City -approved Preliminary Design shall become part of the Preliminary Design. Artist shall incorporate any City -approved revisions into the final design in conformance with City's requirements. Any revisions shall become part of any final design deliverables if the Artist proceeds to the final design phase. 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. Upon the expiration of the Term (hereinafter defined) of this Agreement, if the Preliminary Design is accepted by City, negotiations for final design of the Work shall commence, which shall become part of the deliverable under any potential artwork commission contract. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation Total compensation to Artist under the Agreement shall be FIVE THOUSAND DOLLARS AND NO CENTS ($5.000.001. which shall constitute full compensation for any and all costs associated with the Agreement, including, but not limited to all travel expenses, and services performed and materials Agreement between City of Fort Worth and Eric Eley for Preliminary Design of Public Artwork for Rosen Park 5 of 21 If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this Article 4.3 in accordance with the dispute resolution process set forth in Article 5. If the Parties cannot resolve the dispute(s), then the disputing party shall thereupon have the right to terminate this Agreement upon the delivery of a written "Notice of Termination" specifying the grounds for termination. Termination of this Agreement under this provision shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. 4.4. Termination for Convenience (a) The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted thirty (30) calendar days before termination. (b) If termination is for the convenience of City, City shall pay Artist for services actually rendered up to the effective date of termination and Artist shall continue to provide the City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon payment in full of all monies due for services provided up to the effective date of termination, City shall have the right, in its sole discretion, to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and 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 performed per the payment schedule in Article 3 up through the date of termination. City shall have the right to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination 4.5. Incapacity of Artist (a) In the event that Artist becomes incapable, legally or otherwise, of performing their duties and/or obligations under this Agreement, City may choose to continue the terms of this Agreement with the Agreement between City of Fort Worth and Eric Eley for Preliminary Design of Public Artwork for Rosen Park 7 of 21 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 Artwork Design, Work, and all other work product under this Agreement shall become the property of City, without restriction on future use, except as provided below. Artist shall retain copyright and other intellectual property rights in and to the Artwork Design and/or Work. By execution of this Agreement, Artist grants to the City an exclusive, perpetual, royalty free, and irrevocable license to graphically depict or publicly display the Artwork Design and/or Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Design and/or Work intended to promote or benefit City, its public services or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non-commercial purpose. (b) In view of the intention that the Artwork Design and Work be unique, Artist shall not make any additional exact duplicate reproductions of the Artwork Design or the Work, nor shall Artist grant permission to others to do so except with the express written permission of City. However, nothing herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic expression. (c) Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Artwork Design and/or Work, except as those rights are limited by this Agreement. City may make and disseminate photographs, drawings, and other two-dimensional reproductions of the Artwork Design and/or Work and accompanying materials for any municipal purpose. All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: "© date, Artist's name." (d) Nothing in this Agreement shall prevent the Artist from using images of the Artwork Design and/or Work for marketing and promotional purposes in connection with the Artist's business. (e) City is not responsible for any third -party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. 6.2 Artist's Address. Artist shall notify City of changes in Artist's address as set forth in Article 12. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions that require the express approval of Artist. Notwithstanding this Agreement between City of Fort Worth and Eric Eley for Preliminary Design of Public Artwork for Rosen Park 9 of 21 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 ANY ACTS, ERRORS, OR OMMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTISTS AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. (b) Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained or caused by Artist in connection with or incidental to performance under this Agreement. (c) Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. 9.2. Intellectual 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 WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artist. 9.3. Survival All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. Agreement between City of Fort Worth and Eric Eley for Preliminary Design of Public Artwork for Rosen Park 11 of 21 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-Partv 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 Severabilitv 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 unpaired. 11.9. Force Maieure It is expressly understood and agreed by the Parties to this Agreement that, if the performance of any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather; governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots; material or labor restrictions; transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. 11.10. Contract Construction The Parties acknowledge that each party and, if it so chooses, its counsel, have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 11.11. Fiscal Funding Out If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 11.12. Captions Agreement between City of Fort Worth and Eric Eley for Preliminary Design of Public Artwork for Rosen Park 13 of 21 required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Agreement. 11.17 Counterparts and Electronic Signatures This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 11.18. Time Extensions The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. ARTICLE 12 NOTICES All notices, requests, demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: 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 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 Eric Eley 631 N Winnetka Avenue Dallas, TX 75208 [SIGNATURES APPEAR ON THE FOLLOWING PAGE] Agreement between City of Fort Worth and Eric Eley for Preliminary Design of Public Artwork for Rosen Park 15 of 21 IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective as of the Effective Date. CITY OF FORT WORTH by: Fernando Costa Assistant City Manager APPROVED AS TO FORM v -I( AND LEGALITY_ Tyler F. W ach Assistant City Attorney ATTESTED B� Mary.I. Ka City Secret Contract Authorization: No M&C Required Preliminary between e 9n of publ c ArtworkWorth f r Rosen park for Preliminary OFFICIAL RECORD CITY SECRdtAit/Y FT. WORTH, TX Exhibit A Conceptual Design Feedback from the Selection Panel and FWAC Agreement between City of Fort Worth and Eric Eley for Preliminary Design of Public Artwork for Rosen Park 17 of 21 Exhibit C Implementation Budget 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 written estimate attached. ARTISTS FEE (15%) TRAVEL (For artists who live more than 50 miles from Fort Worth) INSURANCE Airfare Car Rental Per Diem Expenses at $_ per day Mileage at $__ per mile Auto/Hired Vehicle Liability General Liability for Artist / Subcontractors Worker's Comp. / Employer's Liability Other, as applicable PROFESSIONAL CONSULTANT FEES (If applicable, drawing must be signed and sealed by a professional registered to practice in the State of Texas) Architect" Structural Engineer* Electrical Engineer" Conservator* Photographer (for documentation of completed work)" Other* MATERIALS (Please attach a complete list of materials. Itemize all anticipated aspects and components with per unit cost estimates) Materials" Total FABRICATION COSTS (Include and Itemize all portions of subcontracted work and work to be completed by artist.) Artist's Labor ( hours at $ per hour) Total Subcontracted Labor* (Total) Facility/Equipment Rental (used exclusively for this project) related to fabrication SITE PREPARATION (Do not include costs covered by FWPA, City of Fort Worth or others) TRANSPORTATION Test Drilling* Removal* L a n d s c a p i n g/ I rr i g a t i on" Electrical Modifications" Water Work/Mechanical Devices Other" Materials to Fabrication Site* Finished Work to Installation Site* Other" (Revised May 2011) Agreement between City of Fort Worth and Eric Eley for Preliminary Design of Public Artwork for Rosen Park 19 of 21 Exhibit D Sales Tax Exemption TEXAS CERTIFICATE OF I{X4:11P'I'lON I claim an exemption from ptlxnrent of sales and use tax Ilelcm or on the attached order or invoice, r the purchase of ttaxuhlG itenlw describtd Description of Items for an attached older or Invoice) R1 1ie l''utehased: l claim this exemption for the following reason: Name of Exempt Organization- CITY OF FORT WrORl'II, TEXAS TEXAS SALES ANI) USE TAX PI!:RMIT NUMBER I-75-6000528-6 Prlrject for which m❑tenalc and supplies are purchased: I understand That I will be liable fix payment of safes tax, which may become clue for failure to comply with the provisions of the state. city, andic r metropolitan transit authority sales tout use tax laws told comptroller rules regarding exempt purchases. Liability for the tax will be determined by Ilse price paid fir, the taxable items purchased or the fait market rental value for the period of time used. I understand that it is a misdemeanor 10 give an exemption certificate to the seller for taxable items which I know, at the time oldie purchase, will be used in u manner other Than That expensed in this cotifcatc and, upon col ictiun. may be tined up to 5500 pet offense. Tax Ewmnt Status t)uc to I3cine a Governmental LIMN Purchaser: CITY OF' F(1RT WORTII, TEXAS Street Address: 1000 TIIROCKIIIOWI ON STREET City. Slate. Zip Code: FORT WORTII, TEXAS 76102 Sign Here: Furre:+ t huurtnus^rrrnri‘.Inr Dale: June I I, 2009 Phone. 31'I-.W2-K517 I lus certificate Boca not require a numhcr to be Valid, Sales and use t.rx -exemption numbers' or "tax Cxl'lllpl'' ❑11111hen LIO 1101 exIGI, 'this certificate should be furnished to the supplier f)n not send the completed Certificate In the Comptroller of Puhlie Accounts. Agreement between City of Fort Worth and Eric Eley for Preliminary Design of Public Artwork for Rosen Park 21 of 21