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HomeMy WebLinkAboutContract 44388CI1Y ���R�TAR� �' L `-� � � CON'r'�ACT N0. AGREEMENT BETWEEN THE CITY OF FORT WORTH AND NAVARRETE STUDIO, LLC FOR FINAL DESIGN OF PUBLIC ART FOR WEST ROSEDALE STREET This Agreement is entered into this �day of -) , 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 Navarrete Studio, LLC, a New Mexico Limited Liability Company, located at 24 Baca Road, Taos, New Mexico 87571, and acting by and through Juan Navarrete and Patricia Navarrete, its duly authorized Members. City has designated the Arts Council of Fort Worth and Tarrant County, Inc., to manage this Agreement on its behal£ 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 Wocth residents, to commemorate the City's rich cultucal and etlmic diveisity, to integrate the design work of at�tists into the development of the City's capital infrastructure improvements, and to proinote tourism and economic vitality in the City through the artistic design of public spaces; WHEREAS, City is designing and constructing certain streetscape improveinents on portions of West Rosedale Street between 8`�' Avenue and Main Street; WHEREAS, City has set aside funds to coinmission public art / design enhancements in conjunction with the West Rosedale streetscape improvement project from the 2004 Capital Improvement Program and the 2007 Certificates of Obligation Sale for Critical Capital Needs; WHEREAS, this Project is included in the Fiscal Year 2013 Annual Work Plan and Budget, adopted by the Fort Worth City Council on October 16, 2012 (M&C G25920) as pact of the City's agceement with the Contract Manager for administration of the public art program; WHEREAS, Artist participated in a master planning workshop for the West Rosedale Corridor, and contracted with the City to create a inaster plan document and conceptual design for artwork for the Site under City Secretary Contract No. 38458; _ �FFI���#� I��COR� Agreement Between the City of Fort Worth and ��� �����,��� 1 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Str t R�CEIVE�I �PR 2 � �Di� �'• �RT�i, `�( WHEREAS, the Artist presented the master plan and the conceptual design to the Fort Worth Art Colnmission on Septeinber 10, 2012, and the FWAC approved both and recommended that Artist be placed under a final design contract for the Work; and WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be designed to promote the integrity of Ai�tist's ideas and stateinents as represented by the Work. NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreeinents hereinafter set forth, the sufficiency of which is hereby acicnowledged, agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement, the following terms shall have the meanings as set forth below: l.l. Agreement — Means and includes this Agreement between the City of Fort Worth and Navarrete Studio, LLC, for Final Design of public art for the Site. 1.2. Artist - Means and includes Navarrete Studio, LLC, a New Mexico Liinited Liability Company, and/or its partners, ineinbers, managing members, officers, managers, proprietors, directors, employees, representatives, agents, subsidiary organizations, parent organizations, successor entities, assigns, predecessors, stockholders, administrators, subartists, contractors, and related companies 1.3. Artworlc Design — Means and includes both the Preliminaiy Design and Final Design of the Work, which are defined in 1.3.a. and 1.3.b. below. 1.3.a. Preliminary Design — Means all preliminacy di•awings, sketches, pi•ototypes, maquettes, models, narrative descriptions, budget estiinates, and the like that are created by Artist in connection with this Agreement and/or any prior agreement between Artist and City for the Work, including, but not limited to, the design concepts created pursuant to Fort Worth City Secretacy Contcact No. 38458, attached hereto as Exhibit "A" and incorporated herein for all pmposes. 1.3.b. Final Design — Means the Artist's final, proposed design of the Work for the Site, which is based upon the City-approved Preliminary Design and includes, but is not limited Agreement Between the City of Fort Worth and 2 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street to, all final drawings, sketches, prototypes, maquettes, models, and the like that inay be created by Artist in connection with this Agreement, or the like that are related, directly or indirectly, to the Work and shall include Actist's specifications for fabrication and installation of the Work. 1.�4. Contract Manager — Means and includes the Acts Council of Fort Worth and Tarrant County, Inc., and/or its ofiicers, 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 Foi•t Worfll, Texas and its of�cers, representatives, agents, servants, and einployees. 1.6. Effective Date — Means and includes the date repcesented in the �rst paragraph of this Agreement, which shali be the official date of execution of this Agreement. 1.7. Final Design Deliverables — Means and inchides those items set forth in Article 2.4 of this Agreement that are required for City's review and approval. 1.8. Parties — Means and includes City and Artist. 1.9. Project — Means and includes the capital impr�ovement or public art development undertalcing of City for which Ai�tist's secvices ace to be provided pursuant to this Agreeinent. 1.10. Project Consultant — Mea�is and i�lcludes the design firm/professional(s) hired by City to design the Site. 1.11. Site — Means and includes West Rosedale Street between 8`�' Avenue and Main Street, which is more particula►•ly described in Exhibit "B," attached hereto and incorporated herein by reference for all purposes. L12. Worlc — Means and includes the finished object(s) of art and design that are the subject of this Agreement, or any intermediary stage of completion of such work. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Artist Selection. Agreement Between the City of Fort Worth and 3 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street City aud Artist acicnowledge that Ai•tist's Preli�ninaiy Design was reviewed and approved by the FWAC on September 10, 2012, and is the basis for executing this Agreement with Artist. 2.2. Scope of Services. a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary for developing a Final Design of the Work and for providing the Final Design Deliverables. Services shall be performed in a professional manner and in strict coinpliance with all terms and conditions in this Agreement. b. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, taking into consideration feedbacic received during the Preliininaiy Design phase, subject to review and input froin the coimnunity stalceholders and approval by City as set forth in this Agreement. c. The location at the Site where the Worlc shall be installed shall be mutually agreed upon by City and Artist. d. 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. e. Artist shall coordinate with Project Consultant for proper integration of the Work into the Site and into the constiuction docuinents as necessary and to allow for sufficient structural support. f. Upon request of City, Artist shall consult with a qualified art conservator and shall provide written inaintenance recommendations for the Work fi�om said conservator to the Contract Manager. g. Artist shall present the Final Design to the appropriate City committee, City staff, community stakeholders, and other City boards or commissions, as appropriate, for input and to the FWAC for review and approval at dates and times mutually agreed upon. h. Artist shall make a minimum of two (2) trips to Fort Worth, Texas for meetings and presentations as indicated above. Additional trips, if required per this Article, may be negotiated and agreed upon in writing by City and Artist. Agreement Between the City of Fort Worth and 4 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street i. Artist shall present the Final Design to the Contract Manager for preliminary review at least two (2) weeks before any forinal presentations may occur. 2.3. Citv Assistance. Upon request by Artist, City shall promptly furnish all information and materials required by Artist to the extent that such materials are availabie. City, upon request by Artist, shall also provide correct scaled drawings of the Site, if available. 2.4. Final Design Deliverables a. Within three (3) months after the Effective Date, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Article 2.4 to City for approval. Final Design Deliverables shall consist of the foliowing: i. Detailed, design illustrations of the Work for the Site, which shall be at least 20" x 30" atid mounted on foam core and/or in a high resolution digital format, such as JPEG or TIF �les, showing the proposed Work from two vantage points with at least one illustration showing the Work's size and placement in relation to the Site. ii. A final written narrative of the Work, describing the following: (1) the Final Design concepts and tiineline for coinpletion; (2) proposed materiais, fabrication, and installation methods for all elements of the Work, including information regarding Ai•tist's subcontractor(s), if any, for the Work; (3) inaintenance requirements for all elements of the Work as dictated by Artist, along with cost estimates for annual maintenance; and (4) proposed public education program or activity to be conducted by Artist at a time mutually agreed upon by the Parties. iii. Comprehensive working drawings, detailing the means of installing all elements of the Work on the Site, together with other such graphic materiai to permit City to carry out sh•uctural design review. Professionai Liability Insurance is required in all circumstances for on-site artwork requiring engineering andlor architectural services. City will conduct a review of structural design and other related graphic material prior to installation of the Work. Upon Agreement Between the City of Fort Worth and 5 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street City's request, dcawings must be signed and stamped by an engineer and/or architect licensed to work in the State of Texas. Artist will provide the Contract Manager a certificate of insurance for each licensed professional and provide City with a 30-day notice of cancellation of any policy required hereunder. iv. A detailed budget, on the budget form attached heceto as Exhibit "C," foc installation of the Artwork in an amount not exceed $120,533.00 which includes ail costs for materials, labor, fabrication, delivery, installation, insurance, tcansportation, remaining Artist's fee, travel, and all other associated costs for the Worlc. The detailed budget will be for iinpleinentation of the Work tlu�ough a possible artwork commission contract with City, which, contract is subject to the approval of the Fort Worth City Council. 2.5. Final Design Review. a. Upon completion of the Final Design Deliverables, Artist shall present the Final Design to the FWAC for input at a regularly scheduled FWAC meeting. b. After presentation to the FWAC, Artist shall meet with the designated community stakeholders, City staff, and other City boards or commissions, as appropriate, to present the Final Design, at a date and tiine inutually agreed upon, for input. c. After presenting the Final Design as required in Article 2.5.a. and b, Artist shall present the Final Design to the FWAC for input and approval at a regularly scheduled FWAC meeting. d. City shall notify Artist of its approval, or disapproval, of the Final Design within thirty (30) business days of Artist's presentation to the FWAC. e. If City disapproves of the Final Design, either in whole or in part, then City shall inforin Artist of each revision to be made to the Final Design. City may require Artist to malce such revisions to the Final 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. Agreement Between the City of Fort Worth and 6 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street f. Artist shall have thirty (30) calendar days from the date City inforined Artist of the revision(s) to present the revised Final Design in conformance with City's requireinents. g. If City disapproves of the resubmitted Final Design, any further Final Design resubmissions will be by mutual agreement of the Parties and subject to the procedures and terms in this Article. If the Parties desire not to continue with the resubmission process, then this Agreement will automatically terminate, with payment for work performed per the payment schedule in Article 3 up through the date of termination. (See Article 4.4.d) h. Upon City approval of the Final Design, any revisions made to a City-approved Final Desi�n shall becoine part of the Final Design. Artist shall incorporate any City-approved revisions into the final design in conformance with City's require�nents. Artist shall provide the Final Design presentation materials to the Contract Manager to becoine part of the City's Public Art acchive. These documents, models, and/or drawings will be retained for archival and exhibition purposes. i. Upon the expiration of the Term (hereinafter defined) of this Agreement, if the Final Design is accepted by City and funding is appropriated by the Fort Worth City Council, negotiations for fabrication, delivery, and installation of the Work shall commence, which shall become part of the deliverable under any anticipated artwork cominission contract. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Total compensation to Artist under the Agreement shall not exceed NINE THOUSAND SIX HUNDRED EIGHTY-ONE DOLLARS AND NO CENTS ($9,681.00), which shall constitute full cotnpensation for any and all costs associated with this Agreement, including, but not limited to, engineering and consulting fees, all travel expenses, and services perforined and materials furnished by Artist under this Agreeinent. Artist and City may amend this Agreement to allow for additional payment if additional services are required. 3.2. Payinent Schedule Agreemeut Between the City of Fort Worth and 7 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street a. City agrees to pay Artist in the following installments set forth below, each install�nent to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereo£ i. TWO THOUSAND SIX HUNDRED FIVE DOLLARS AND NO CENTS ($2,605.00) upon execution of this Agreement. ii. THREE THOUSAND FOUR HUNDRED SEVENTY-TWO DOLLARS AND NO CENTS ($3,472.00) within thirty (30) calendar days after Artist subinits all of the Final Design Deliverables required under Article 2.4 of this Agreement and malces a presentation(s) of the Final Design to the FWAC. iii. TWO THOUSAND SIX HUNDRED FOUR DOLLARS AND NO CENTS ($2,604.00) within thirty (30) calendar days aftec City's approval of tl�e Final Design. iv. City may pay Artist up to ONE THOUSAND DOLLARS AND NO CENTS ($1,000.00) for engineering and consulting fees in order to fulfill the terms of this Agreement. Such payment shall be made upon receipt of an invoice from Artist with the original invoice (a retainer fee of up to 50% is allowed) for such services attached thereto. 3.3. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon tlie Project. City shall supply Ai•tist with the "Texas Cectificate of E;cemption," iii substantially tl�e sa�ne forin as that attached hereto as EYhibit "D" foi• use by AI•tist in the fulfillment of this Agreement. 3.4. Artist's E;cpenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not liinited to, services, materials, mailing/shipping charges and insurance on submissions to City and/or Contract Manager, cost of all travel, and costs for ArtisYs agents, consultants, and/or einployees necessary for the proper performance of the services required under this Agreement. ARTICLE 4 TERM AND TERMINATION 4.1. Term Agreeulent Between the City of Fort Worth and 8 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street This Agreement shall be in effect from the Effective Date and, unless terininated earlier puisuant to such provisions in this Agreement, shall extend until final payment to Artist by City. 4.2. Gratuities City may cancel this Agreement if it is found that gratuities in the form of entertairunent, 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 inaking of any determinations with respect to this perforinance of this Agreeinent. 4.3. Termination for Cause If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this A�reement, or otherwise violate any of the covenants, agreeinents, or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes arising fi•om this Article 4.3 in accordance with the dispute resolution process set forth in Article 5. If the Parties cannot resoive 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 terinination, specifying the grounds for terinination. b. If the termination is for the convenience of City, City shall pay Artist for services actually rendered up to the effective date of termination, and Artist shall continue to provide the City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon payinent 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 wark product produced by Artist under this Agreeinent, including, but not limited to, finished and unfinished Agreement Between the City of Fort Worth and 9 of 27 Navarrete Studio, LLC for Final Design of Public Art far West Rosedale Street drawings, sketches, photographs, inodels, 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 relnit to City a sum equal to all payments (if any) inade to the Artist pursuant to this Agreeinent prior to the effective date of terinination. 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 inutual agreement of the Parties as set forth in Article 2.5, then City shall pay Artist for work performed per the payment schedule in Article 3 up through the date of termination. City shall have the right to possession and transfer of all worlc 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 perforining its duties and/or obligations under this Agreement, City shall have the right to terininate this Agreeinent on payment to Artist oc Artist's successors fot� all work and services performed prior to incapacity. All work product produced by Artist, including, but not limited to, �nished and unfinished drawings, slcetches, photographs, inodels, and designs, up to the effective date of termination shall become property of City. b. Should Ai•tist's Final Design have been approved, in the event of termination under tliis Article 4.5, City shall have the right to complete the Work, if feasible. Due regacd sl�all be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. This provision shall survive the termination or expiration of this Agreement. ARTICLE 5 Agreement Between the City of Fort Worth and 10 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street DISPUTE RESOLUTION If either Artist or City has a claim, dispute, or other matter in question for breadl 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 pa��ty's specific reasons for such dispute. Within ten (10) business days of ceceipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonabie 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, tlien the Parties may submit the matter to non-bindin� inediation upon written consent of the autllorized representatives of bot11 parties in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Goverrunent Code, then in effect. Request for mediation shall be in writing, and shall request tliat Yhe mediation coimnence not less than iifteen (15) or more than forty-five (45) calendar days following the date of request, except upon Agreeinent 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 thuty (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. T'he Parties shall share the mediator's fee and any filing fees equally. Venue for any inediation or lawsuit arising under this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No provision of this agreement shall waive any iininunity or defense. No provision of this Agreement constitutes consent to sue. If the Parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. (See Article 4.3) ARTICLE 6 OWNERSHIP AND 1NTELLECTUAL PROPERTY RIGHTS 6.1 General Agreement Between the City of Fort Worth and 11 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street a. Upon payment in full to Artist or pursuant to the applicable termination provision of this Agreement, the Artworlc Design, Worlc, and all other worlc product under this Agreement shall become the property of City, without restriction on future use, except as provided below. Az-tist shall retain copyright and other intellectual property rights in and to the Artworlc Design and/or Worlc. By execution of this Agreement, Artist grants to the City an exclusive, perpetual, royalty free, and irrevocable license to graphically depict or display the Artworlc Design and/or Worlc for any non-commercial purpose whatsoever. For purposes of this liinitation, any graphic depiction or display of the Artworlc 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 intentioli that the Artworlc Design and the Worlc be unique, Artist shall not malce any additional exact duplicate reproductions of the Artworlc Design or the Worlc, nor shall Artist grant permission to others to do so except with the express written permission of City. However, notlung herein shall prevent Artist from creating future artworlcs in Artist's manner and style of artistic expression. c. Artist reserves every right available under the Federal Copyright Act to control the inaking 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 Artworlc 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: "�O date, Artist's name." d. Nothing in this Agreement shall prevent the Artist fi•oin using images of the Artwork Design and/or Work for marketin� and promotional purposes in connection with the At•tist's business. Agreement Between the City of Fort Worth and 12 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street e. City is not responsible for any third-party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist 6.2 Artist's Address. Artist shall notify City of changes in Artist's address as set forth in Article 12. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights. ARTICLE 7 WARRANTIES OF TITLE AND COPYRIGHT Artist represents and warrants that: a. Artwork Design and/or Work shall be the original product of the Actist's sole creative effocts. b. Artwork Design and/or Work is and will be unique and originai, and does not infi•inge upon any copyright or the rights of any person; c. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork Design and/or Work or any copyright related thereto that inay affect or iinpair the rights granted pursuant to this Agreeinent; d. Artwork Design and/or Work (or duplicate thereo� have not been accepted for sale elsewhere; e. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and f. All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill and diligence. ARTICLE 8 ARTIST AS 1NDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or einployee 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 oinissions of his/her officers, agents, employees, and subcontractors. Nothing Agreement Between the City of Fort Worth and 13 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street herein shall be construed as creating a partnership or joint venture between City and Artist, his/her officers, agents, einployees and subcontractors, and doctrine of respondent superior has no application as between City and Artist. ARTICLE 9 INDEMNIFICATION 9.1. GeneralIndemriitv i. 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 DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATUR�, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPCRTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORI�RS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJOIZY (INCLUDING, BUT NOT LIMITED TO, DEATI� TO ANY AND ALL PERSONS, OR OT�IER HAI2M I'OR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WIIATSOEVER KIND OR CHARACTER, WIIETHER I2EAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM THE ACTS, ERRORS, OR OMMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTISTS AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTIVERS, AND REPRESENTATIVES IN CONNECTION WITII THE EXECUTION, PERFORMANCE, ATTEMPTED P�RFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. ii. Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained or caused by Artist in connection with or incidental to performance under this Agreement. iii. Artist shall require all of its subcontractors to include in their subcontracts a release and indeinnity in favor of City in substantially the same form as above. 9.2. Intellectual Property Agreement Between the City of Fort Worth and 14 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not lunited to, the assumption of any and all responsibilities for payin� 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, DEI'END, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artist. 9.3. Survival All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. ARTICLE 10 EQUAL OPPORTUNITY a. Artist shall not engage in any unlawful discrimination based on race, creed, color, national origin, sex, age, religion, disability, marital status, citizenship status, sexual orientation or any other prohibited criteria in any empioyment decisions relating to this Agreement, and Artist represents and warrants that to the extent requu•ed by applicable laws, it is an equal opportunity employer and shall comply witl� all applicable laws and regulations in any employment decisions. Agreement Between the City of Fort Worth and 15 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreeinent, this Agreeinent may be canceled, terminated, or suspended in whole or in part, and Artist inay be debarred fi•om further agreements with City. ARTICLE 11 MISCELLANEOUS 11.1. Coin lip ance Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the performance of Artist's services under this Agreement. 11.2. Entire Agreeinent This writing einbodies the entire agreement and understanding between the Parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 11.3. Amendments No alteration, change, modi�cation, or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. 11.4. Waiver 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 Agreeinent. The payinent or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 11.5. Governin� 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 — Foi•t Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 11.6. Successois and Assigns Agreement Between the City of Fort Worth and 16 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street Neither party hereto shall assi�n, sublet, or transfer its interest herein without prior written consent of the other party, and any attempted assigmnent, sublease, or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and their respective successors and permitted assigns. 11.7. No Third-Party Beneficiaries The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights, contractual, or otherwise, to any other person or entity. 11.8 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 impaired. 11.9. 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 commotion; acts of God; inclement weather; govermnental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots; material or labor restrictions; transportation problems; or any other circumstances which are reasonabiy 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 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 A�reement 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. Agreement Between the City of Fort Worth and 17 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street l 1.11. 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 sufiicient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement to be effective on the later of (i) thuty (30) days following delivery by City to Actist of writte�� 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. Ca tions Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 11.13 Ri�ht to Audit Artist agrees that City will have tlie right to audit the financial and business records of Artist that relate to the Worlc (collectively "Records") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, the Artist shall make all Records available to the City at 1000 Throcicmorton Street, Fort Worth, Texas or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. Notwithstanding anything to the contrary herein, this Article shall survive expiration or earlier termination of this Agreement. 11.14. Certiiied MBE/WBE. If applicable, Artist is encouraged to malce its best effort to becoine a certified Minority Business Enterprise (MBE) or Woman Business Enteiprise (WBE) firin with a certifying agency whose certification is accepted by the City undec the City's Business Diversity Enterprise Ordinance. 11.15 Survival Provision The provisions contained in Articles 6(Ownership and Intellectual Property Rights), 7(Warranties of Title and Copyright), 8(Artist as an Independent Contractor), and 9(Indeinnification) shall survive the termination or expiration of this Agreement. Agreement Between the City of Fort Worth and 18 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street 11.16 Public Inforination Act Artist understands and acknowledges that City is a public entity under the laws of the State of Texas and, as such, all docuinents held by City are subject to disclosure under Chapter 552 of the Texas Govermnent Code. Artist shall clearly indicate to City what information it deems proprietary. If City is required to disclose any documents that may reveal any of Actist's Pcopcietary Information to third parties under the Texas Govermnent Code, or by any other legal process, law, rule, or judicial order by a court of coinpetent jurisdiction, City will notify Artist prior to disclosure of such documents, and give Artist the opportunity to submit reasons for objections to disclosure. City agrees to restrict access to Artist's IIlf01'1T11t1011 to those persons within its organization who have a need to know for purposes of management of this Agreement. City agrees to inform its employees of the obligations under this paragraph and to enforce rules and procedures that will prevent any unauthorized disclosure or transfer of information. City will use its best efforts to secure and protect Artist's informatioi� in the same manner and to the same degree it protects its own proprietary information; however, City does not guarantee that any information deemed proprietary by Artist will be protected from public disclosure if release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Agreement. 11.17 Counterparts and Electronic Si na� This Agreement may be executed in several counterparts, each of which will be deeined an original, but all of which together will constitute one and the same instrument. A signature received via facsunile or electronically via email shall be as legally binding for all purposes as an original signature. 11.18. Tiine 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, deinands, and other communications which are required or permitted to be given under this Agreeinent shall be in writing and shall be deemed to have been duly given upon the delivery or receipt Agreement Between the City of Fort Worth and 19 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: CITY OF FORT WORTH: Fernando Costa, Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckinorton Street, Third Floor Fort Worth, Texas 76102 Copies to: Sarah Fullenwider, City Attorney Ofiice of the City Attorney City of Fort Worth 1000 Tlu�ockmorton 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 Juan and Patricia Navarrete, Navarrete Studio, LLC P. O. Box 2251 Taos, NM 87571 [SIGNATURES APPEAR ON THE FOLLOWING PAGE] Agreement Between the City of Fort Worth and 20 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street IN WI��NI;SS f i�R1�UF, the 1'artics heretc� hz�vic excc�rted this ��;rccment to he eflective as of'the I;ffcctivc I)ate. crry or rc�kT wo���r�i t,y: Fcrnando C'ost�i nssistant City Managcr A1�1'HOVJ?D AS TO FORN1 ANn LECALITY: Tyler F. Waliaclt ilssistanl City Attc�rney n���rF.s��r.0 �;v: Ma�y .I. Kayser City Scc:rctaiy Contract Autl�orizi�tion: M&C No M��.0 Rcnuirccl NAVARItI?Tr: STUI)10, 1,LC: .. - c; ti�'�`--=-- �'..�—:�'� '� t�----..,L,—_—� ,, uaii Na��ari•ete�%�f� . � Mcmbci• � �/ j 1 ��):: 7".�j�%C' � } ---�-��� r PaU ci� N�►v�urctc Mcmhcr Agrccmcnl l3cl�vccn tiic City of 1�<�rt �l'orih tind Navarrete Studio, I.I.0 ii�r I•'in�il Dcsign of� Public Art t��r West Rosedale Strect OFFICIAL RECORp u�ITY SECRETARy �T'o VVORTIh�y �"� IN WITNESS HEREOF, the Parties hereto have executed this Agreeinent to be effective as of the Effective Date. CITY OF FORT WORTH by: ss�o C� Fernando Costa Assistant City Manager APPROVED AS TO FORM AND LEGALITY: NAVARItETE STUDIO, LLC by: Juan Navarrete Member by: Patricia Navarrete Meinber Contract Authorization: M&C — No M&C Required Agreeinent Between the City of Fort Worth and Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street OFFI�IAIL RECfiRID CI`TY' ��Q��t�Ai��' � �'�". lNI��TNr'[�t � � . _ --__ - : - - . __ ai ofa� � ����� Tyler F� allach Assistant City Attorney Exhibit A: The Preliminary Design Artist statement: Our decision to select growth and flowering vegetation as our theme for the sculptures to be placed on lamp poles along West Rosedale Street from Forest Park Boulevard to Main. In conjunction with our impression of the Botanical Gardens, we took into consideration each distinct area within the corridor, the Fairmount and Medical Districts and the Chishohn Trail. Historically, flowers and�lanting vegetation were veiy much a part of the Fairinount District. Flowers�have al�vays �ieen an appropriate symbol of healing that brings comfort to those ill in t11e hospital. Grass was a primary need for cattle as the herds were driven north on the Chisholm TraiL Ultimately, natural vegetation inspired us to create sculptural designs that reference the three cultural infrastructures that were identified in the charette process. Each sculptuce will be @ 6'- 7' H x 5' W. They will be fabricated primarily from carbon steel with contrasting stainless steel accents. Juxtaposed to the metal components, diclu•oic glass will be an integral element and placed in a variety of locations on each sculpture. Agreement Between the City of Fort Worth and 22 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street Exhibit A: The Preliminary Design (cont'd) 5��- baHi k1 j West iiose�t Ie ��, lamp PWe> Scu�pluro Oest�ns , Nav:urolo � � Y;{ Ydest fioseda!� Lur� Pnb Sc�A��. Navnrrete � StalnHss M2 We Len Na� ocm�; smnt,u a.e Datadc G�ass A4 Wost F Lnmpl Navau I � � Navarrete �tuaio, LLI: ior rmal llesign oT Yublic Art for West Rosedale Street � 23 of 27 Exhibit B: The Site West Rosedale Street, from west of 8t�' Avenue to Main Street � �r, � .�F`W � � fr:�+ 3�7 �'Q � �� }` .����Walli5� � ��° 1N Ro d I ',t 't �� i l. `_ N 1 5 .4l ._.. i�ll.in ' `� h1istlelae Heighle "' Prni�iyW,tida Av� F Re�.F� h,- . v: Ary .! k Annie &t '; .. So1�lh y �t vrulit Gi � roryAvu E HnWe st � c�„ ...z „1 . V/ c:&nnG�� SI : � C 1{�1U' � in 1^t ca�no� s; � . " Cc,�pnr 9; � s W l.euae t.� V! Leuaa St � ��' E Li��uA, 51 Y m R� � � A,A' lei�.,l n�r � �n 4V ic•�nl�A.c N •.• G n � z� 4; 4; y E 7[rtailAv� � Ho �e� w a � 3 ul Pnrker • � �. k Hombo)h . 3 N l.uml�l4�nF �: r� E Dash�tru w Rosednfc g� rt ' — .. �., n" �� S: ' I �.� .ne ar e.,�a 1 3 ��O�Qi�� �� :d ins�.'n . 5001 m �� � �r., ;,. � m W Ray.,d:4� 0t � VJ R edntn St •`� (zs� f R m " � � � y °� tint e � �„ l � � nenNa �t L' .r3, � � rr�unJe .s � 4` 5 ' � � � D I i f�' �� N a c,n m ,r::��,Fy11 ,� t,�r�a ,.a�,.. °,si� �y �o,� q� i�m�s� � iAiF+ tn..i.., �uEtied9�<: a ai ct.i�,r, ' m F I G u.�d; � v i�,e,o,, aM HFhrP � R �d '� _�^ T� , r.t�n,..tar, .� � �, n� ��d,n S'r � '� �A }' �, � '',t 1 �.��n'�t SI D i Pa,rmoum � � n:�H t r � n t a1�i��� : — � Pa�k .t�.azdd�,n r>iihHr,..�,.+ai �� � : _ , �r�tim�r,nvo _ , . _ _ „�- Agreement Between the City of Fort Worth and 24 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street ARTIST'S FEE TRAVEL (For artists who live more than 50 miles irom Forl Worth) Airfare Car Rental Per Diem Expenses at $_ per day Mileage at $_ per mile INSURANCE ADMINISTRATIVE EXPENSES AutolHired Vehicle Liabiliiy General Liability for Artist / Subcontractors Worker's Comp. ! Employer's Liabiliry Other, as applicable PhoneJFax 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' Elecirical Engineer` Conservator* Photographer (for documentation of completed work)' Other' MATERIALS (Piease 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.) ArtisPs Lahor (_ hours at $_ per hour) Total Subcontracted Labor" (Total) FacilitylEquipment Rentai (used exclusively for this project) related to fabrication SITE PREPARATION (Do not include costs covered by FWPA, City of Fort Worth or others) Test Drilling* Removal' Landscapi ng/irrigation* Electrical Modifications" Water Work/Mechanical Devices Other* (Revised May 20? 1) Agreement Between the City of Fort Worth and 25 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street TRANS�pRTATIC�N BASE�MOUNTING R4at�rials to Fabric��ti�a�, Sate� Fn+shed "+N�k ic� Insiallatiarr Site` �thsr' g;�rg tv'G,unt�ng [7�vices �rrd G+�vnponants F�xu�dat��nl Fanti r�ta C,�th�r INSTALLATION c:OSTS (C�sts niust indud� alfouance tar aftpr hetirs In�tallaY�on, if appticaSile Piease attach a c¢anp�te tist of equlp,ment 3ra� intiivi�u�i estln�ates stifith ii�is form} 5utrcontraU;ed Lal;c�r' St�flolding` Equ€�}m�nt REnioi r�l:�i�rl t�� InStak�aticn�" b�-�I�iry Pt�ilc�r3ecufit;+' Traffic: B:+rriers' �:�ra�ae Faci�rh,� R�nial' City Permrts D;_piay �evices Fareorc��6ng' ;iite Re�to�ati;�n` �.7th�r" �I�HTiNG CaRAND TOTAL Please m+�ke nny necessaiy nutes hera: PiepnrEcl E3y: DatO: Desia;n�rs' Frxtures' Buli�s" ,iit� Preparatioi�' Instaliatrvi�' {Rns�ls�� Ad�y 2'Ji t) Agreement Between the City of Fort Worth and 26 of 27 Navarrete Studio, LLC for Final Design of Public Art far West Rosedale Street Exhibit D: Sales Tax Exemption Tf:���; t'k�1i'1'IFIC"�iTF' Clt� 1�:���:�11�"i'i[)'ti ��°I�n��� af� t�+aiiCr[t����� li�,rt, ��t�srrr:ar�tt +,I`��.�l�a ar^�1 ��k4 a,a�.�'� th�� ihr ��ueltra�.�: �+1 i,��alstw �s� m� E��:-��Ee�I��� 1��I���a ��ris�i th� .ir,���l�c^� ��,=�1�r��r sn�r�sa�°, t)i':�ttt�±t:tY)t c�i lie�ns �nr �ri r�tE;�a�+a:n� isti�rr t,r lFa+,ui�c1 1 t'i 13�; �'t1i�&���t1�: 1 4��n�rn� illi� r�.4�It��tsanir I��f 31�e Ia��P,4�t't�tg; ��ti��§: �rt�ea�« ��f T���up� t tr���tdr,���ant (�'1'fY !)F ��li I" �44'C)12"i"Fi,'1 F�:!`,�15 7"I?�A'i.'�i,-1L�1�;'.`�` ��ND Li�iE TA!+: 1'I�:Ii11I`I' '�;Cf�[B�E� l-7S�#r1i0t)�Zl3-ti 4�riija�f lui' e����a:l� n��€caEia! : 3r7si ks.�fysla�+� SraY �,tt�i�u�sa^x!: � ta�s�Ir��It�itGt tlr�al I ta��1) $s� lit�l�i� I+�r p.�����cni �E���s�li, 9.ax, ra$���°l� m�k` Irt�r„�at�� itwr fsrr fac���rr� t�s t:s��a;�,9�� ��r'11i t�-�� �in�+.a��on� a�t't9�r >t;zt�. car.�,°, autct�e,r �n�zr+��F�sl�t��t t€;�r�ji �iu�3it7rity .�li, �.:.���i i�:�� ��� I:t:��� aut�t i-irtY1;»���Il��r rtsle�; e�p;:�rc1�n� 4�xi�Ir��*i �jg�r+:hnxe�. t,i.ihsltt�' d'c�t t���� i;�� o��e�l E� drlcrras,tt�-A:i f�} ilic �ri�� �ai+) Ea>r ili+; r,�*;��I,[r ftrit�� �iurah���rl 4,r Eir�� 4i�ta i7�,i��c� t�ist�l i�srls� fa�r �i�r E•+��.w1 rrl� t��ese G����- t da�r�[re�IG�nti :i�E�t �� s� � Ini�ic�t�c,���e,r is� �r��c ru� ��r€��p�tietr� ,:r-ri�li���r��s 9G, Ilar ;�t�ll�� li�r i�a=�k�t�� i��m� t�lss�ffa 9 k�a����. ;3i €�a� �imr «i the �rcl�:�.>�, tti��Il a�..= ���3 rn n ai�iutee r�Ihc^r tlteaa I►car c*:�sseci ir� ihis ��tita�atw �e�d, t��>n c��n�i�'lir�. assi:r h�-- tss:�,� G�p tG� *,5dti� � i+�1����,. �,a��s F?c�tipt `31atu� t3uc t� F3cat� 3���t r��mtnt�€ l�ntt€�� �'��i�Wl�.���r: C'1'I�1` Of' �"t?i2'1" 1�'i71t'�I1,'TF��,'�S �tr�tt .-i�dre�:,_ IUfJ�� "TlIR43C'1+::'�iUtt"1`f)'ti STREET t�,s,r, '������� z,p c�,��:��; ��c)ttT;3�!�Ri�11. rts�.l!� 76toz i LL i , g +�i�i1 I�c�t" � �.�., � �.�,— .� 1}�,ttr. i���rt I x �41rNi I'I�G�te4� ;��?_t�)7.k5t', --- _ -- �=�*-+c � lfiX��cen�,_... ;y�en i k: 33 tcerc� - .. 1 hit, e�ri3lici�t�; �iii��. €=�}t s��u.r� s nua.th�< t+� t� �:,�li�i '+�lt�; ��ci u�� tax "e�:em�7=<=.,,tr rst%r il�er;,. �,�r "tati: Eai:ut��t" nu[t��s�•€ti itat iu�i �°g��.1. E'hin cc��ihM:�",� ,irai�:�a� h� tt�roaisl5�c� €i� tltu �.up���i�t� CYz� n,it ss;zd k�eE ;, ��n����-tsr�( � c-�t�teb•�ts� Its >l5s' t ���rtt��drx�+llur ��t !'ialtl��� �l4��°,,.�nlv Agreement Between the City of Fort Worth and 27 of 27 Navarrete Studio, LLC for Final Design of Public Art for West Rosedale Street