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HomeMy WebLinkAboutContract 58124 CITY SE-CRETARY z� 1TR,Ar,T N0._5 ;3`L_ AGREEMENT BETWEEN THE CITY OF FORT WORTH AND ALLBRITTON LEE, LLC D/B/A RE:site FOR CONCEPTUAL DESIGN PROPOSALS FOR PUBLIC ART FOR THE NEAR SOUTHSIDE GATEWAYS PROJECT This Agreement is entered into this Wday of 2022, 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 City Manager, and Allbritton Lee, LLC d/b/a RE:site("Artist"), located at 5615 Briarbend Drive, Houston, Texas, 77096, acting by and through its authorized Co-Owner. City has designated the Arts Council of Fort Worth and Tarrant County, Inc., D/B/A Arts Fort Worth to manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art project managers. WHEREAS,pursuant to Chapter 2,Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents,to commemorate the City's rich cultural and ethnic diversity,to integrate the design work of artists into the development of the City's capital infrastructure improvements, and to promote tourism and economic vitality in the city through the artistic design of public spaces; WHEREAS Near Southside, Inc. ("NSI"),on behalf of the City of Fort Worth and with funding from the City of Fort Worth's Tax Increment Financing District##4("Southside TIF")has engaged GAP Strategies,LLC and TranSystems Corp. ("Project Consultant")to develop conceptual designs for pedestrian, bicycle and lighting improvements for the South Main Street underpass at Union Pacific Railroad("Site 1") and the East Rosedale Street underpass at Interstate-35W("Site 2") and wishes to integrate public art into both Sites. WHEREAS,funding for the South Main Underpass Public Art Project(Site 1)was included in the Public Art Plan for the 2014 Bond Program, adopted by the City Council on October 21,2014,as M&C G- 18339(site map attached as Exhibit"A"); WHEREAS, funding for the East Rosedale Street Underpass at Interstate 35W(Site 2)is anticipated to be available from a combination of reprogramming of public art funds and from the Southside TIF(site map attached as Exhibit"B"); WHEREAS,on July 11,2022, the Fort Worth All Commission("FWAC") approved the Project Outline(attached as Exhibit"C"), including the selection of Allbritton Lee, LLC D/B/A RE:Site Studio ("Artist")and Bill Fitzgibbons,LLC("Other Artist") from the Fort Worth Public Art('FWPA") Pre- Qualified List of Established Public Artists in accordance with Professional Services Team Artist Selection Process guidelines included in the Fort Worth Public Art Master Plan Update(adopted by City Council on October 17,2017, as M&C G-19140); EEFIC1AL RECORD a "f ca SECREl ARY �� 1 ` Agreement Between the City of Fort Worth and PF44 GR-m,TX _FP 22� 22 Wh .`l i:srte for Conceptual Design Proposals of Public Art for Underpass Gateway Locations WHEREAS,the Project Outline specified that Artist and Other Artist shall separately develop Public Art Conceptual Design Proposals in coordination with the Project Consultant for both Sites 1 and 2; WHEREAS, City and Artist wish to set out the terms and conditions under which.said Work shall be designed to promote the integrity of Artist's ideas and statements as represented by the Work. NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth,the sufficiency of which is hereby acknowledged, agree as follows: ARTICLE I DEFINITIONS As used in this Agreement,the following terms shall have the meanings as set forth below: 1.1. Agreement—Means and includes this Agreement between the City of Fort Worth and Artist for Public Art Conceptual Design Proposals for Site 1 and Site 2. 1.2. Artist-Means and includes Allbritton Lee,LLC DB/A RE:site,and/or its partners,members, 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 Artist-Site Selection Panel — Means and includes a panel comprised of arts professionals, community stakeholders,City staff representatives,City Council Members,and a Fort Worth Art Commission (FWAC) representative who shall review Artist's and Other Artists' conceptual proposals and shall recommend one(1)artist/conceptual proposal for each site to the FWAC. 1.4. City—Means and includes the City of Fort Worth, Texas and its officers, representatives, agents, servants, and employees. 1.5. Conceptual Design Proposal — Means all preliminary drawings, sketches, narrative descriptions, budget estimates, and the like that are created by Artist in connection with this Agreement between Artist and City for the Work. 1.6. Conceptual Design Proposal Deliverables — Means and includes those items set forth in Article 2.4 of this Agreement that Artist is required to submit to City for its review and approval. 1.7. Contract Manager—Means and includes the Arts Council of Fort Worth and Tarrant County, Inc. DBA Arts Fort Worth, and/or its officers, directors, employees, agents, subsidiary organizations, parent organization, successor corporations, assigns, predecessors, stockholders, administrators, and related companies. 1.8. 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. 1.9. Other Artist--Means and includes Bill Fitzgibbons, LLC, who is also preparing proposals for Site I and Site 2 under a separate Conceptual Proposal Agreement with the City of Fort Worth, Agreement Between the City of Fort Worth and Page 2 of 22 RE:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations 1.10. Parties—Means and includes City and Artist. 1.11. Project—Means and includes the capital improvement undertaking for which Artist's services are to be provided pursuant to this Agreement. 1.12. Project Co-Manager—Means and includes the designee of Near Southside,Inc, (NSI), 1.13. Project Consultant—Means and includes GAP Strategies,LLC and TranSystems Corp. 1.14. Project Core Team—Means and includes the group of community members, generally 5-7 individuals, who are invited by the City Council Member to provide input on the project for its duration, in accordance with the Fort Worth Public Art Master Plan Update(page 23 in online version).For this project, the Project Core Teams for Site 1 and Site 2 may be appointed during the Conceptual Design Phase. 1.15. Project Stakeholders—Means and includes the appropriate City Council Members,Project Core Teams,Project Stakeholders,Near Southside,Inc.,Downtown Fort Worth,Inc.,TxDOT,City Staff, and others as may be appropriate. 1.16. Site 1—Means and includes the South Main Street Underpass at Union Pacific Railroad,which is more particularly described on Exhibit "A, attached hereto and incorporated herein by reference for all purposes. 1.17. Site .2 —Means and includes the East Rosedale Street Underpass at I-35W, which is more particularly described on Exhibit"B,"attached hereto and incorporated herein by reference for all purposes. 1.18. Work—Means and includes the finished objects)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 two(2)conceptual artwork design proposals from Artist for review by the Artist-Site Selection Panel for Site 1 and Site 2 of this Project and,ultimately,to select an artist for each site based on their proposals,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, 2.2. Scope of Services. a. Artist shall work closely with the Project Consultant to engage the community and explore ways in which public art may reflect the unique flavor, history or attributes of the neighboring communities and provide a safer environment and better connectivity and accessibility for pedestrians and bicyclists traveling through each site. b. Artist shall work with Contract Manager to identify local emerging artist(s) from which Artist may select one or more to receive education and training in the field of public art by observing and/or Agreement Between the City of Fort Worth and Page 3 of 22 RE:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations assisting Artist, as determined by Artist., during the course of the project for which Artist may be selected. C. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary for developing a Conceptual Design Proposal of the Work for each site and for providing the Conceptual Design Proposal Deliverables. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. d. Artist shall travel to Fort Worth to make initial site visits and attend Community Engagement events conducted by Project Consultant and Co-Managers at a mutually convenient date and time. C. Artist shall keep in frequent contact with Contract Manager regarding all activities performed under this agreement. Contract Manager, in turn, shall regularly communicate with Project Co-Managers regarding the Artist's activities and progress. f. Artist shall meet with Project Consultant,Contract Manager(s)and Project Co-Manager,as needed,to coordinate the Artist's concepts with the Capital Improvement Project design to ensure feasibility and aesthetic continuity. g. Artist shall prepare and present a Conceptual Design Proposal for each site to the Artist-Site Selection Panel on a mutually agreeable date and time in-person unless a virtual meeting is preferable due to concerns related to the COVID-19 pandemic. h. Artist shall allow video recording and photography of their Conceptual Design Proposal Presentations to the Artist/Site Selection Panel and FWAC. i. Artist shall make two(2)trips to Fort Worth,Texas for meetings and presentations as indicated above. Additional trips,if required per this Article,may be negotiated and agreed upon in writing by City and Artist. 2.3. 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. 2.4. Conceptual Design Proposal Deliverables a. Artist shall provide a separate set of Conceptual Design Proposal Deliverables for Site 1 and Site 2. 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 concepts; 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; Agreement Between the City of Foil Worth and Page 4 of 22 RE:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations iv. A preliminary budget estimate, on the budget form attached hereto as Exhibit "D," for implementation of a final design of the Work in an amount not to exceed$340,000.00,which includes all costs for materials, labor, fabrication, delivery, installation, insurance, transportation, Artist's fee of $41,000.00, and all other associated costs for the Work including,but not limited to,lighting and travel. Budget estimate should also include the cost of material or fabrication samples and/or prototype models for the Work that show the size and placement of the Work in relation to the Site,as appropriate;and V. OPTIONAL: Material sample(s)that illustrate what the proposed Work would be made from, showing durability,texture, color, etc.; however, no models or prototypes shall be presented to the Artist/Site Selection Panel. C. Artist shall submit an electronic version of their initial concept sketches for each Conceptual Design Proposal for the purpose of a design progress report as described in 2.21. These sketches shall be submitted to Michelle Gonzales, Public Art Project Co-Manager no later than 12:00 Noon (Central Time), Monday, September 26, 2022, and shall be available for a Zoom call with Contract Manager and Project Co-Managers at a mutually convenient time. d. Artist shall submit an electronic version of their final Conceptual Design Proposals for the purpose of staff review as described in 2.21 These sketches shall be submitted to Michelle Gonzales,Public Art Project Co-Manager no later than 12:00 Noon(Central Time), Monday, October 24,2022, and shall be available for a Zoom call with Contract Manager and Project Co-Managers at a mutually convenient time. C. The initial concept sketches and the Conceptual Design Proposal Deliverables shall be sent in one of the following manners: i. Via email to mizonzales(a)artsfortworth.org(9 MB size limit per each email) ii. Via an FTP site, such as www.yQusendit.com or dropbox.com iii. Mailed or hand delivered on a flash drive to Arts Fort Worth,ATTN: Fort Worth Public Art, 1300 Gendy Street,Fort Worth,TX 76107. f. Artist acknowledges that he/they will present their concepts to the Artist/Site Selection Panel in early November 2022(date TBD). 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., which Artist was selected to proceed to the next phase of the Project for either Site 1 or Site 2, within 5 business days of the FWAC's approval of Artist-Site Selection Panel's recommendations. ARTICLE 3 Agreement Between the City of Fort Worth and Page 5 of 22 RE-site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Total compensation to Artist under the Agreement shall be ELEVEN THOUSAND DOLLARS AND NO CENTS ($11,000.00) 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 furnished by Artist under this Agreement. Artist and City may amend this Agreement to allow for additional payment 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 HUNDRED DOLLARS AND NO CENTS ($1,500.00) upon execution of this Agreement,recognizing that Artist has already invested time and expense in preliminary coordination with Co-Managers. ii. THREE THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($3,500.00) within thirty(30) days after Artist attends Site Visit and Community Engagement Meeting. ii. FIVE THOUSAND DOLLARS AND NO CENTS ($5,000.00) within thirty (30) calendar days after Artist submits all of the Conceptual Design Proposal Deliverables for both sites required under Article 2.4 of this Agreement and presents the Conceptual Design Proposals to the Artist-Site Selection Panel. iii. ONE THOUSAND DOLLARS AND NO CENTS ($1,000.00) within thirty (30) calendar days of Art Commission's approval of Conceptual Design. 33. Sales Taxes. City is a tax-exempt organization,and no state or local sales taxes or federal.excise taxes shall be due upon the Project. City shall supply Artist with the"Texas Certificate of Exemption,"in substantially the same form as that attached hereto as Exhibit"E"for use by Artist in the fulfillment of this Agreement. 3.4. Artist's Expenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on submissions to City and/or Contract Manager, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 4 TERM AND TERMINATION 4.1. Term Agreement Between the City of Fort Worth and Page 6 of 22 RE:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations This Agreement shall be in effect from the Effective Date and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City. 4.2. Gratuities City may cancel this Agreement if it is found that gratuities in the 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. Termination for Cause The City may terminate this Agreement for cause in the event Artist fails to perform in accordance with the requirements contained herein.In such event,City shall give Artist written notice of Artist's failure to perform, giving Artist seven(7)calendar days to come into compliance 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 f of the date of such notification.In such event,Artist shall not be entitled to any additional compensation. 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 the termination is for the convenience of City,City shall 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 sum equal to all payments (if any)made 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 for either site, then, upon payment in full to the Artist,the Conceptual Design Proposals and all other work product under this Agreement shall become 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 Proposals. b. In view of the intention that the Conceptual Design Proposals be unique,Artist shall not make any additional exact duplicate reproductions of the Conceptual Design Proposals,nor shall Artist grant permission to others to do so except with the express written permission of City. Agreement Between the City of Fort Worth and Page 7 of 22 RE:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations 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 for either site 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 rights 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 for either site,then the ownership and intellectual property rights set forth in this subsection shall apply. b. Upon payment in full to Artist, the selected 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 selected 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 selected Conceptual Design Proposal and/or Work for any non-commercial purpose whatsoever. For purposes of this Iimitation, any graphic depiction or display of the selected Conceptual Design Proposal 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. C. In view of the intention that the selected Conceptual Design Proposal and the Work be unique, Artist shall not make any additional exact duplicate reproductions of the selected Conceptual Design Proposal 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. d. Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the selected Conceptual Design Proposal and/or Work, except as those rights are limited by this Agreement. If Artist is selected to proceed as the Project artist, City may make and disseminate photographs, drawings, and other two-dimensional reproductions of the selected Conceptual. Design Proposal 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." C. Nothing in this Agreement shall prevent the Artist from using images of the selected Conceptual Design Proposal and/or Work for marketing and promotional purposes in connection with the Artist's business. Agreement Between the City of Fort Worth and Page 8 of 22 RE:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations f. City is not responsible for any third-party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. ARTICLE 6 WARRANTIES OF TITLE AND COPYRIGHT a. Artist represents and warrants that: i. Conceptual Design Proposals and/or Work shall be the original product of the Artist's sole creative efforts. ii. Conceptual Design Proposals and/or Work is and will be unique and original, and does not infringe upon any copyright or the rights of any person; iii. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Conceptual Design Proposals and/or Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; iv. Conceptual Design Proposals and/or Work(or duplicate thereof) have not been accepted for sale elsewhere; 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 necessary 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 exclusive control of,and the exclusive right to control the details of the work performed hereunder, and all persons performing same,and shall be solely responsible for the acts and omissions of their officers, agents, employees, and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artist, their officers, agents, employees and subcontractors, and doctrine of respondent superior has no application as between City and Artist. ARTICLE 8 1NDEMNIFICATION 8.1. Generallndemnity a. ARTIST COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS,LAWSUITS,JUDGMENTS,ACTIONS,CAUSES OF ACTION, LIENS, LOSSES,EXPENSES,COSTS,FEES(INCLUDING,BUT NOT LIMITED TO,ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT Agreement Between the City of Fort Worth and Page 9 of 22 RE:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJURY(INCLUDING,BUT NOT LIMITED TO,DEATH) TO ANY AND ALL PERSONS,OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM 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. 8.2. Intellectual PropeM 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. ARTICLE 9 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 Agreement Between the City of Fort Worth and Page 10 of 22 RE:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations criteria in any employment decisions relating to this Agreement, and Artist represents and warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled,terminated,or suspended in whole or in part,and Artist may be debarred from further agreements with City. ARTICLE 10 MISCELLANEOUS 10.1. Compliance. Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the performance of Artist's services under this Agreement. 10.2. Entire Agreement. This writing embodies the entire agreement and understanding between the Parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 10.3. Amendments. No alteration, change,modification, or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. 10.4. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms,covenants,and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 10.5. 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. 10.6. Successors and Assigns. Neither party hereto shall assign,sublet,or transfer its interest herein without prior written consent of the other party, and any attempted assignment,sublease, or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and their respective successors and permitted assigns. 10.7. No Third-Party Beneficiaries. Agreement Between the City of Fort Worth and Page 11 of 22 RE:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations 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. 10.9. SeverabiIity. 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. 10.9. Force Majeure. City and Artist will exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement,but will not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any government law, ordinance,or regulation;.acts of God;acts of the public enemy;fires;strikes;lockouts;natural disasters;wars; riots; epidemics or pandemics; government action or inaction; orders of government; material or labor restrictions by any governmental authority; transportation problems; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any States; civil disturbances; other national or regional emergencies; or any other similar cause not enumerated herein but which is beyond the reasonable control of the Party whose performance is affected (collectively, "Force Majeure Event"). The performance of any such obligation is suspended during the period of,and only to the extent of,such prevention or hindrance,provided the affected Party provides notice of the Force Majeure Event,and an explanation as to how it prevents or hinders the Parry's performance,as soon as reasonably possible after the occurrence of the Force Majeure Event,with the reasonableness of such notice to he determined by the City in its sole discretion. The notice required by this section must be addressed and delivered in accordance with this Agreement. 10.10. 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. 10.11. 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 Iaer 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. 10.12. Ca tip ons. Agreement Between the City of port Worth and Page 12 of 22 RE:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 10.13. Right to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Work(collectively"Records")at any time during the Term of this Agreement and for three(3)years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, the Artist shall make all Records available to the City at 200 Texas 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. Artist shall require all of its subcontractors to include in their subcontracts a right to audit in favor of City in substantially the same form as described in this Article 10.13. 10.14 Certified MBE/WBE If applicable, Artist is encouraged to make its best effort to become a certified Minority Business Enterprise (MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is accepted by the City under the City's Business Diversity Enterprise Ordinance. 10.15. Survival Provision. The provisions contained in Articles 4.5(Incapacity of Artist),Articles 6(Ownership and Intellectual Property Rights), 7 (Warranties of Title and Copyright), 8 (Artist as an Independent Contractor), 9 (Indemnification), and 10.13 (Right to Audit)shall survive the termination or expiration of this Agreement. 10.16. Counterparts and Electronic Signatures. This Agreement may be executed in several counterparts, each of which will be deemed an original,but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 10.17. Time Extensions. The Parties may agree,in writing,to extend or modify any of the time deadlines set forth in this Agreement. 10.18. Israel. If Artist is a company with ten(10)or more full-time employees and if this Agreement is for$100,000 or more, Artist acknowledges that in accordance with Chapter 2270 of the Texas Government Code, the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it:(1)does not boycott Israel;and(2)will not boycott Israel during the term of the contract. The terms"boycott Israel"and"company"shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. If applicable under this Agreement and Artist is considered a"company," by signing this Agreement,Artist certifies that Artist's signature provides written Agreement Between the City of Fort Worth and Page 13 of 22 RE:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations verification to the City thatArtist.(1)does not boycott Israel;and(2) will not boycott Israel during the term of the Agreement. 10.19. Energy Companies. If Artist is a company with ten(10)or more full-time employees and ifthis Agreement is for$100,000 or more, Artist acknowledges that in accordance with Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2, the City is prohibited from entering into a contract for goods or services that has a value of$100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1)does not boycott energy companies;and(2)will not boycott energy companies during the term of the contract. The terms"boycott energy company"and"company"have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement,Artist certifies thatArtist's signatureprovides written verification to the City thatArtist.(1)does not boycott energy companies;and(2) will not boycott energy companies during the term of this Agreement. 10.20. Firearms and Ammunitions Industries. If Artist is a company with ten(10)or more full-time employees and if this Agreement is for$100,000 or more, Artist acknowledges that in accordance with Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1,the City is prohibited from entering into a contract for goods or services that has a value of$100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1)does not have a practice,policy,guidance,or directive that discriminates against a firearm entity or firearm trade association;and(2)will not discriminate during the term of the contract against a firearm entity or firearm trade association. The terms"discriminate,""firearm entity" and"firearm trade association' have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg.,R.S.,S.B. 19, § 1. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Artist certifies that Artist's signature provides written verification to the City that Artist. (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and(2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. ARTICLE 11 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: Agreement Between the City of Fort Worth and Page 14 of 22 RE:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations 1. CITY OF FORT WORTH: Fernando Costa,Assistant City Manager City of Fort Worth 1000 Throckmorton Street,Third Floor Fort Worth,Texas 76102 Copies to: Leann Guzman,City Attorney Office of the City Attorney City of Fort Worth 1000 Throckmorton Street,Third Floor Fort Worth,Texas 76102 Martha Peters Director of Public Art Arts Fort Worth 1300 Gendy Street Fort Worth,Texas 76107 2. ARTIST Allbritton Lee,LLC dlbla RE:site Shane Allbritton,Co-owner 5615 Briarbend Drive Houston,TX 77096 IN WITNESS HEREOF,the Parties hereto have executed this Agreement as of the Effective Date. CITY OF FORT WORTH ALBRITTON LEE,LLC by: Fernando Costa by: Shane Allbritton,Co-Owner CO-CONTRACT COMPLIANCE MANAGERS By signing,I acknowledge that I am the person responsible for the monitoring and administration of this contract,including ensuring all performance and reporting requirements. �4� _'9� Name:Alida Labbe Name:Michelle Gonzales Title:Public Art Project and Capital Budget Manager Title:Public Art Project Manager APPROVED AS TO FORM AND LEGALITY: �j OFFICIAL RECORD CITY SECRETARY Agreement Between the City of Fort Worth and f%eWQM,TX RE:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations Jessika Williams Assistant City Attorney ATTESTED BY: Ja tte S. Goodall Ci ecretary Form 1295:Not required Contract Authorization: No M&C required. Ordinance No.24161-04-2020 OFF RECORD C��y�yNT!Y��jp�Sp'YyE�pCQ(�RrpE ARY ■ ■A 'nV MUM- [X Agreement Between the City of Fort Worth and RE:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations Exhibit A: Site 2 The highlighted area illustrates the boundaries of the I-35W Underpass at East Rosedale Street in Council District 8,Fort Worth,Texas. dIIJIL" ..WE PC P .ate wl'" oo Ft aim cs a; r Agreement Between the City of Fort Worth and Page 17 of 22 RE:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations Exhibit B: Site 1 The highlighted area illustrates the boundaries of the South Main Street Underpass at Union Pacific Bridge, along with I-30 in Council District 9, Fort Worth,Texas. 1 # i 40 AR la-IA ;a l l42 � w J I Agreement Between the City of Fort Worth and Page 18 of 22 RE:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations Exhibit C: Project Outline CITY CF FORT WORTH ARTOOMMISSION . .. _ . ItRr] ❑f 2 MEETING DATE: JUNE 20,2022 AGENDA frEM:VI.a. PRa JECTNAME: SOUTH MAIN TUNNEL/135W UNDERPASS PRESENTATION: Approve the Combined Project Outline for South Main Tunnel(District 9)/135W at East Rosedale Street Underpass(District 8)Public Art Projects Near Southside Gateways Project Public Art Project Outline Near South..lde Inc,(NSI),In partnership with Fort Worth dublic Art(FWPA)managed by Arts Fort Worth,the City of Fort Worth and TxDat has Initiated a proposed project scope that,led by neighborhood residents and local stakeholder Input,will study the aesthetic and functional Improvements at the key gateway underpass locations of South Main Street a+t Inlon Pacific Railroad and E.Rosedale Street at 35W.at the northern and eastern ernes of the NearSouthside district. SOUTH MAIN'TUNNEL 155W at I?WROS014E Initial discussions among the collaborating entities indicates that Improvements should likely address lighting, pedestrian facilirres,traffic safety fou all modes Including bicycles,as well as incorporate public art.The community engagement process would be tailored to separately solicit ideas and input from stakeholders representing the two areas of South Main and East Rosedale,and this input will be crucial for the resulting conceptual improvement plan proposed for each location. Near Southslde Inc.has recently gained approval from the Board of Directors serving on the Tax Incremental Reinvestment zone Number Four,to allocate a maximum of$100,000 towards this conceptual design effort.NSI will serve as the project rmnager to hire an Interdisciplinary tears with urban design,engineering,and community eneagement expertise.Thl.team will work closely with the Identified artists,contracted with the City through FWPA,to develop a conceptual anproach for the Integration of public art into the improvement plan. The first phase of thi_project Is planned to b a completed by the end of 2022 and the resulting conceptual plan,vill Include cost estimates to serve as he basis for a subsequent TIF propo,a.for final design and construction fund'ng.This next phase of the project will begin it early 2023. PUBLIC ART BUDGETS South Main Tunnel:$140,000(2014 Bond Program,Proposition A) 135W at East Rosedale Street Underpass: $95,00(2D04 Bond Pr[gram and Public Art Fund)pendlr,fund reprogramming from the proposed Guinn School Plaza subject to City Council approval surf cuf;md-FoUt4a pet04 ErnaA_ '-iJ,ci+•.: .i:+!r, Phoe!817,29830x5 Agreement Between the City of Fort Worth and Page 19 of 22 RE:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations Cll'Y OF FORT WORTH ART Ct?h�If� lWON MEETING DATE: IUNIE 20,2022 AGENDA REM:vl.a. PROJECT NAME: ZOUTH MAIN TUNNEL/135W UNDERPASS PRESENTATION: Approve the Combined Project Outline for South Main Tunnel(District 9)/1.35W at East Rosedale Street Underpass(District 8)Public Art Projects RECOMMENDED ARTISTS Among the artist selection processes outlined In the Fort Worth Public Art Master Ploa Update is one in which a Professional Services'Learn selects an artist from the Fort Worth Put&Art Pre-Qualified Ust(see Appendix IVA.)as part of their response to an RFCL Since NSI has already selected tale design team for the Near Soutl€skie Gateways Pmjpts, they have recommended the foilowf%artists from the Pre-Qualified Listof Established Public Artists to each be InAted to prepare proposals for both sites: RE.-site Studio[Norman Lee and Shane Allbritton) hMs;/iwwwjeMte-stuft.com/­ Hill Fitzglilft is his:/Poilifit7g_ihbons.ce�n upon approval by the Art Commisslon,the artists will be placed under separate Artwork Proposal Agreements with the City of Dort Worth and wfil be informed by community tnpot and work close[y with the deelgar team to develop proposals for integral public art for both sites for consideration. CONCEPTUAL MELINE Ju)y 1-Design Team under cc-qtract FWPA—A t9s:ts each placed under Artwork Proposal Agreements Ju)y 1-Aug 5:Site Visit,project research and base dacamems and presentation preparation prig 8-.Sept.2:Public Engagement FWPA-ArtWA visit sites and participate in public engagement FWPA-P10)ect Core Team e5tab4he4 far each public art project Sept S-Oct 15.Develop Concepts w Prelim Cost Estimate Oct 17-28:Update Community and Gather Feedback FWPA-Artists'proposals reviewed by an Artwack Seiectlon Panel composed cf Art Commissivl'Iers, arts professionals and representatives born each Project Core Team Nov 1-18:Finalize Concept and Cost Estimate FWPA-Art cammi#slon"xt*Wtrs Artwork Selection Pa3n@Vs iecamnrendatlons Nov 21-Dec 2:NSI team prepares TIF proposal Early Dec:TIF Board n'reeting--NSI submits proposal and cost fordesign devebpment and construction FWPA-Artists planed under Fklal Design Gantracts Early 2023:Final Design Phase begins PUBLIC ART PROJEM MANAGERS • South Main Tunnel--Altda Labbe • 1-35 W underpass-Michelle Gonzales {f Cgnt1lci=fwWMll0 Pato1w ftwLr. ffmw,Glt;5if4i1l> nAG4Ja: Phfaare:$17,791JA02S Agreement Between the City of Fort Worth and Page 20 of 22 RE:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations Exhibit D: Budget PROJECT BUDGETARTIST • . PROJECT •EVELDPMENT TtMPLATEDEVELOPMENT COSTSa FEES INSTALLATION Artist Fee t5tudio Overhead,Design,Admin) Transportatien of Artwork 'Engineer i Permits Lighting Designer Site Preparation/Remediatlon Conservator Footings/Foundations Photographer Electrical Connections/Modifications Other Professional Fees Installer Labor Equipment Rental 'traffic control SUB-TOTAL FEES �.�[� Security SkJB-TOTAL INSTALLATI0N $ 0.00 TRAVEL (5*se4 on GSA Rates) Transporallon INSURANCE Lodging General Liability(prorated) Per diem(meats and incidentals) Other SVR-TOTAL.TRAVEL $ 0,00 SUR-TOTAL OVERHEAD $ Q_00 FABRICATION Materials CONTINGENCY 5%Artist-Held Contingency Artist tabor(hours x per hour) Required in Preliminary Design Phase Fabricator/Labor by+OtlY@rc GRAND TOTAL 00 Rentals(equipment,fabrication space,etc.) ` " Storage S L 10-TOTAL.FARRI CAT[ON OM Agreement Between the City of Fort Worth and Page 21 of 22 RE:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations Exhibit E: Sales Tax Exemption W �at-we e ffA'": l �1 .y" L(Ray.4-13M) Texas Sales and Use Tax Exemption Certification This certificate does not require a number to be valid. Name or purchseer,firm or agency City of Fort Worth,Texas Address(sweet&number,P.0.Box or Route number) Phone{Area code and nambad 200'texas Street 817-392.8517 City,state,ZIP code Fort Worth,Texas 76102 I,the purchaser named above,claim an exemption from payment of sales and use taxes(for the purchase of taxable iteris described below or on the attached order or invoice) from: Seller: All Vendors Street address: City,State,Z[P code: Description of Items to be purchased or on the attached ardor or invoice: All items.Purchaser acknowledges that this Certificate cannot be used for the purchase,lease or rental of a motor veh Icle. Purchaser claims this exemption for the following reason Municipality,Govemmental Entity I understand that I will be liable for payment of all state and local sales or use taxes which may become due for failure to comply with the provisions of the Tax Code and/or all applicable law. Iunderstandthatitlse cdminaioffense togivean exemption certNcate to thesellerfortaxableltems iltatlknow,atthe time ofpurchase, will beusedin amannar otharthan ihatexpressedin thiscodifleate,and depending on theamountoftax evaded,the offensema y range from a Class C misdemeanor to a felony of the second degree. Parchsser Ti[ie Aare hem y Finance DirecEorICFO NOTE: This certificate cannot be Issued for the purchase,lease or rental of a motor vehicle THIS CERTIFICATE DOES NOT REQUIRE A NUMBER TO BE VALID. Sales and Use Tax"Exemption Numbers"or"Tax Exempt"Numbers do not exist, This certificate should be furnished to the supplier. Do 11Qj send the completed certificate to the Comptroller of Public Accounts. Agreement Between the City of Fort Worth and Page 22 of 22 RB:site for Conceptual Design Proposals of Public Art for Underpass Gateway Locations