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HomeMy WebLinkAboutContract 42294CITY SECRETARY ~ L\ CONTRACT NO. L\ ~ ;;t-, AGREEMENT BETWEEN THE CITY OF FORT WORTH AND ETTY HOROWITZ FOR PRELIMINARY AND FINAL DESIGN OF PUBLIC ARTWORK Thi s Agreement is entered into this &-\ -6,+-day of .5e pt~f'V\ ~' 2011 , 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 Etty Horowitz, an individual , of 6628 Sahalee Drive, Fort Worth , Texas 76132. City has designated the Arts Council of Fort Worth and Tarrant County , Inc., to manage this Agreement on its behalf. The Contract Manager shall act through its designated project manager. WHEREAS , pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances , the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents , to commemorate the City 's rich cultural and ethnic diversity , to integrate the design work of 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 , on March 5-6 , 2010 , Artist participated in a public art workshop with artists Jill Bedgood and Michael Pavlovsky and art teachers from Crowley ISD for the Summer Creek Corridor, as shown on the map attached herein as Exhibit "A ," to develop approaches and concepts for public art , both functional and non-functional , that could involve students from nearby schools , which resulted in preliminary recommendations and thematic approaches for public art and design enhancements for the Summer Creek Corridor; WHEREAS , City is designing and constructing the new Far Southwest Community Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final de s ign of public artwork 09-20 -11 P03:39 IN - Page I of33 WHEREAS , the Site was identified in the Long Range Public Art Plan for th e 2004 CIP for inclusion of public art , and two percent (2%) has been earmarked for design and implementation of public art through the 2004 Capital Impro vements Program (CIP); WHEREAS , the Fort Worth Art Commission (the "FWAC ") has recommended the design for the Site in its Fiscal Year 2011 Annual Work Plan , which Fort Worth City Council appro ved on October 19 , 2010 (M&C C-24554); WHEREAS , on February 14 , 2011 , the FWAC recommended additional funds from the public art fund to augment the public art budget for this Project; WHEREAS , the FWAC has recommended that Artist , in coordination with City 's Project Consultant, be retained for design of an artwork for the Site that incorporates themes suggested in the Workshop ; WHEREAS , City and Artist wish to set out the terms and conditions under which said Work shall be designed . NOW, THEREFORE , City and Artist for and in consideration of the covenants and agreements hereinafter set forth , the sufficiency of which is hereby acknowled ged , agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement , the following terms shall have the meanings as set forth below : 1.1 . Agreement -Means and includes this agreement between the City and Artist for Preliminary Design and Final Design of Public Art for the Site. 1.2. Artist -Means and includes Etty Horowitz and all other persons or entities for which she is legally responsible , including , but not limited to , her heirs , executors , administrators , legal representatives , successors , agents , contractors , subcontractors , subartists , and assigns. Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 2 of 33 1.3. Artwork Design -Means and includes both the Preliminary 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 preliminary drawings , sketches , prototypes, maquettes , models , narrative descriptions , budget estimates , 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 . 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 to , all final drawings , sketches, prototypes , maquettes , models , and the like that may be created by Artist in connection with this Agreement , or the like that are related , directly or indirectly , to the Work and shall include Artist 's specifications for fabrication and installation of the Work. 1.4. Contract Manager -Means and includes the Arts Council of Fort Worth and Tarrant County , Inc., and all other persons or entities for which Contract Manager is legally responsible including , but not limited to , its officers , directors , employees , agents , subsidiary organizations , parent organizations , successor corporations , assigns , predecessors , stockholders , administrators , and related companies . 1.5. Community Group -Means and includes the group of community representatives and /or stakeholders selected to review the Artwork Design. 1.6 . City -Means and includes the City of Fort Worth and its officers , representatives , agents , servants , and employees . 1.7. Effective Date -Means and includes the date represented in the first paragraph of this Agreement , which shall be the official date of execution of this Agreement. Agreement between the City of fort Worth and Etty Horowitz for preliminary and final desi gn of public artwork Page 3 of33 1.8. Final Design Deliverables -Means and includes those items set forth in Article 2.6 of this Agreement that Artist is required to submit to City for its review and approval. 1.9. Parties -Means and includes City and Artist. 1.10. Preliminary Design 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 prior to proceeding to the Final Design phase of this Agreement. 1.11. Project -Means and includes the capital improvement/public art development undertaking of City for which Arti.st ' s services are to be provided pursuant to this Agreement. 1.12. Project Consultant -Means and includes the design firm/professional(s) hired by City to design the Site. 1.13. Site -Means and includes the new Far Southwest Community Center in Southwest Community Park located at 4680 McPherson Street, Fort Worth , Texas 76123 , which is more particularly described on the map attached hereto as Exhibit "B" and made apart hereof for all purposes . 1.14 . Work -Means and includes the finished object(s) of art and design that are the subject of this Agreement , or any intermediary stage of completion of such work. 2.1. General. ARTICLE2 SCOPE OF SERVICES a. Artist shall perform all services and will furnish all supplies and materials as necessary for developing the Preliminary Design and Final Design of the Work. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final des ign of public artwork Page 4 of33 b. Artist shall determine the artistic expression, scope, design , color, size , material , and texture of the Work subject to review and input from the Community Group and approval by City as set forth in this Agreement. c . The specific location at the Site where the Work shall be installed shall be mutually agreed upon by City and Artist. d . Artist shall coordinate with Project Consultant to ensure proper integration of the Work into the Site and into the construction documents and to ensure that there is sufficient structural support and appropriate lighting for the Work. Upon request of City , Artist shall consult with a qualified art conservator and shall provide written maintenance recommendations for the Work from said conservator to the Contract Manager. e. Artist shall present the Preliminary Design and Final Design to Community Group and City officials for input and to the FWAC for review and approval at dates and times mutually agreed upon . 2.2. Implementation Budget Total. Artist shall develop a Final Design that is financially feasible relative to the budget for implementation of the Final Design. It is understood that the budget for implementation of the Final Design is SIXTY THOUSAND NINE HUNDRED FIFTY DOLLARS AND NO CENTS ($60,950.00), which includes all costs for materials, labor, fabrication, delivery , installation, lighting , insurance , transportation, travel , remaining Artist's fee , and all other associated costs for the Work. Artist shall provide a detailed budget, on the budget form attached hereto as Exhibit "C," for the Work. Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 5 of 33 2 .3. City Assistance. Upon request by Artist, City shall promptly furnish all information and materials required by Artist to the extent that such materials are available. City , upon request by Artist, shall also provide correct scaled drawings of the Site , if available . 2.4 . Preliminary Design Phase Deliverables Within forty-five (45) calendar days after the Effective Date of this Agreement, 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. Preliminary Design Deliverables shall consist of the following: a . Two conceptual design illustrations showing the proposed Work from two vantage points , including a plan view, which shall be at least 20 " x 30" and mounted on foam core and/or in a high resolution digital format; b. A narrative description of the Artist's concept, proposed materials , fabrication , and installation methods , timeline for completion and maintenance , and conservation requirements ; c. Installation diagram , including approximate weight of the Work , proposed base , footing , or attachment method(s) and , if applicable , location(s) for any electrical outlets and lighting fixtures ; d. A budget for the Work with written estimates attached for supplies and services to be provided by Artist, by Artist 's contractor, or by others, including the remainder of Artist 's fee , in an amount not to exceed SIXTY THOUSAND NINE HUNDRED FIFTY DOLLARS AND NO CENTS ($60,950.00) (see Article 2.2); e. 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; Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final desi gn of public artwork Page 6 of3 3 2.5. Preliminary Design Review a. Upon completion of the Preliminary Design Deliverables , Artist shall meet with the designated Community Group , Project Consultant , City staff, and other City boards or commissions , as appropriate , to present the Preliminary Design, at a date and time mutually agreed upon , for input. b. Artist shall present the Preliminary Design to the FW AC for approval at a regularly scheduled FW AC meeting . c. City may require Artist to make such revisions to the Preliminary Design as are necessary for the artwork to comply with applicable statutes , ordinances , or regulations of any governmental regulatory agency having jurisdiction over the Site for reasons of safety and security . d. City may also request revisions to the Preliminary Design as City deems necessary in its sole discretion. e. Within thirty (30) calendar days of its receipt of the Artist's submission of the Preliminary Design , the City shall notify the Artist of its approval , or disapproval , of such submission and of each revision made in the Preliminary Design. Revisions made pursuant to this Article 2.5 , upon approval by City , shall become part of the Preliminary Design. If City requires any revisions to the Preliminary Design , Artist shall incorporate those revisions into the Final Design in conformance with City's requirements. Any revisions shall become part of the Final Design Deliverables if the Artist proceeds to the Final Design phase ofthis Agreement. f. If the Preliminary Design or any required revision is disapproved by City , Artist shall have thirty (30) calendar days to resubmit the Preliminary Design in conformance with City's requirement. Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 7 of33 g. If resubmitted materials are not approved by City , this Agreement may be terminated at City 's sole discretion, with payment for work performed per the payment schedule in Article 3 up through the date of termination. Artist shall provide the Preliminary Design presentation materials to City to become part of City 's Public Art archive. h. If Artist's Preliminary Design is approved by City , then Artist's Preliminary Design shall be incorporated into this Agreement as an addendum, and shall become the basis for proceeding to the Final Design phase of this Agreement. 1. Upon City 's approval of the Preliminary Design, Artist shall provide the Preliminary Design presentation materials to the Contract Manager to become part of the City of Fort Worth Public Art archive owned by City. These documents , models , and/or drawings will be retained for archival and exhibition purposes. Artist's Preliminary Design and all other work product under this Agreement shall become the property of City , without restriction on future use (see Article 6). 2.6. Final Design Phase Deliverables. If City approves Artist 's Preliminary Design and authorizes Artist to proceed to the Final Design phase of this Agreement, then , within sixty ( 60) calendar days after City authorizes Artist to proceed to the Final Design phase , Artist shall provide services and all supplies , materials , and equipment necessary to provide certain deliverables , as set forth in this Article 2.6 , to City for approval. Final Design Deliverables shall consist of the following : a. Two final design illustrations , which shall be approximately 20 " x 30 " and mounted on foam core and/or supplied in a high resolution digital format , 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 ; Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final de s ign of public artwork Page 8 of3 3 b. A final written narrative for the Work, describing the following: (1) Final Design concept and timeline for completion; (2) Proposed materials, fabrication , and installation methods for all elements of the Work , including information regarding Artist's subcontractor(s), if any ; (3) Maintenance requirements for all elements of the Work as dictated by Artist , along with cost estimates for annual maintenance ; and (4) Proposed public education program to be conducted by Artist at a mutually agreed upon date and time. c. Comprehensive working drawings , detailing the means of installing all elements of the Work on the Site , together with other such graphic material as may be requested by City to permit City to carry out structural design review. Upon City 's request, these drawings must be signed and stamped by an engineer and /or architect licensed to work in the State of Texas as required by City. Artist will obtain and furnish to Contract Manager certificates of professional liability insurance from each such licensed professional and will require the City to be named as a "certificate holder" entitled to notice of cancellation/nonrenewal in accordance with standard practices. Artist shall not be liable for the use of the drawings submitted under this Article for any use other than the Final Design. d.. A final budget for the Work with written estimates attached for supplies and services to be provided by Artist , by Artist's contractor, or by others , including the remainder of Artist 's fee , in an amount not to exceed SIXTY THOUSAND NINE HUNDRED FIFTY DOLLARS AND NO CENTS {$60,950.00) (see Article 2.2). 2.7. Final Design Review. a. Upon completion of the Final Design Deliverables , Artist shall meet with the designated Community Group City staff, Project Consultant, and other City boards or commissions , Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 9 of33 as appropriate, to present the Final Design, at a date and time mutually agreed upon, for input. b. Artist shall present the Final Design to the FW AC for approval at a regularly scheduled FWAC meeting. c. City may require the Artist to make such revisions to the Final Design as are necessary 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 . d. City may also require Artist to make such revisions to the Final Design as City deems necessary in its sole discretion. e. Within thirty (30) calendar days of its receipt of the Artist's submission of the Final Design , the City shall notify the Artist of its approval , or disapproval , of such submission and of each revision made in the Final Design. Revisions made pursuant to this Article 2.7, upon approval by City , shall become part of the Final Design. f. If the Final Design or any required revision is disapproved by City, Artist shall have thirty (30) calendar days to resubmit the Final Design in conformance with City's requirement. g. If resubmitted materials are not approved by City , this Agreement may be terminated at City 's sole discretion, with payment for work performed per the payment schedule in Article 3 up through the date of termination. Artist shall provide the Final Design presentation materials to City to become part of City's Public Art archive. h. Upon the expiration of the Term, as 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 , Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 10 of33 which shall become part of the deliverables under the subsequent any potential artwork commission contract. 1. Upon approval of the Final Design by City, Artist shall provide the Final Design presentation materials to the Contract Manager to become part of the City of Fort Worth Public Art archive owned by City. These documents , models , and/or drawings will be retained for archival and exhibition purposes. Artist's Final Design and all other work products under this Agreement shall become the property of City, without restriction on future use (see Article 6.1 ). 3 .1. Compensation ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE Total compensation to Artist under the Agreement shall not exceed EIGHT THOUSAND EIGHT HUNDRED FIFTY DOLLARS AND NO CENTS ($8,850.00), which shall constitute full compensation for any and all costs associated with the Agreement, including, but not limited to, engineering and consulting fees , 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 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: a. THREE THOUSAND FIFTY DOLLARS AND NO CENTS {$3,050.00) upon execution of this Agreement. b. TWO THOUSAND DOLLARS AND NO CENTS {$2,000.00) within thirty (30) calendar days after Artist submits all of the Preliminary Design Deliverables required Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 11 of33 under Article 2.4 of this Agreement , makes a presentation(s) of the Preliminary Design to the FW AC , and City approves the Preliminary Design. c. TWO THOUSAND DOLLARS AND NO CENTS {$2,000.00) within thirty (30) calendar days after Artist submits all of the Final Design Deliverables required under Article 2.6 of this Agreement and makes a presentation(s) of the Final Design to the FWAC. d. ONE THOUSAND DOLLARS AND NO CENTS {$1,000.00) within thirty (30) calendar days after City 's approval of the Final Design. City may pay Artist up to EIGHT HUNDRED DOLLARS AND NO CENTS {$800) for engineering and /or a conservator 's consultation 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 the Work. City shall supply Artist with the "Texas Certificate of Exemption ," in substantially the same form as that attached hereto as Exhibit "D ," 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 , 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. Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 12 of33 ARTICLE4 TERM AND TERMINATION 4.1. Term This Agreement shall be in effect from the Effective Date, and , unless terminated earlier pursuant to such provisions in this Agreement , shall extend until final payment to Artist by City. 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 If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement , or otherwise violate any of the covenants, agreements , or stipulations material to this Agreement , then the Parties shall first attempt to resolve any disputes arising from this Article 4.3 in accordance with the dispute resolution process set forth in Article 5 of this Agreement. If the parties cannot resolve the dispute(s), then the disputing party shall thereupon have the right to terminate this Agreement upon the delivery of a written "Notice of Termination" specifying the grounds for termination. Termination of this Agreement under this 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 Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 13 of33 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, specifying the grounds for termination. b. If the termination is for the convenience of City , Artist shall have the right to fees for work performed , in which event City shall have the right at its discretion to possession and transfer of title to the sketches, designs, and models already prepared and submitted or presented for submission to City by Artist under this Agreement prior to the 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, Artist shall remit to City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to termination. 4.5. Incapacity of Artist a In the event of Artist's death or Artist becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to death or incapacity. All finished and unfinished drawings , sketches , photographs, models and work shall become property of City. b. Should Artist's Final Design have been approved , in the event of termination under this Article 4.5 , City shall have the right to complete the Work. Due regard shall 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 DISPUTE RESOLUTION Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 14 of33 If either Artist or City has a claim , dispute, or other matter in question for breach of duty , obligations, services rendered or any warranty that arises under this Agreement , the Parties shall first attempt to resolve these issues through this dispute resolution process . The disputing party shall notify the other party in writing as soon as practicable after discovering the claim , dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten ( 10) business days of receipt of the notice , both parties shall make a good faith effort , either through email, mail , phone conference, in person meetings, or other reasonable means to resolve any claim, dispute , breach , or other matter in question that may arise out of, or in connection with this Agreement. If the Parties fail to resolve the dispute within sixty (60) calendar days of the date of receipt of the notice of the dispute , then the Parties may submit the matter to non-binding mediation upon written consent of the authorized representatives of both parties in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code , then in effect. Request for mediation shall be in writing , and shall request that the mediation commence not less than fifteen (15) or more than forty-five ( 45) calendar days following the date of request, except upon Agreement of the Parties. In the event City and Artists are unable to agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty (30) calendar days following the date of the request for mediation , then all the conditions precedent in this article shall be deemed to have occurred. The Parties shall share the mediator 's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County , Texas . Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No provision of this agreement shall waive any immunity or defense. No provision of this Agreement constitutes consent to sue. If the Parties cannot resolve the dispute through mediation , then either party Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 15 of33 shall have the right to exercise any and all remedies available under law regarding the dispute. (See Article 4.3) ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1. General a. Upon payment in full to Artist , the Artwork Design, Work , and all other work product under this Agreement shall become the property of the City , without restriction on future use , except as provided below. Artist shall retain copyright and other intellectual property rights in and to the Artwork Design and/or Work. By execution of this Agreement, Artist grants to the City a perpetual , irrevocable license to graphically depict or display the Artwork Design and/or Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Design and/or Work intended to promote or benefit City , its public services or its public purposes , regardless of whether or not a fee is charged to the public , or whether revenue is otherwise received by City , shall be deemed a non-commercial purpose. b. City shall take title to all documents and/or drawings , which constitute or are components of the Artwork Design and/or Work, upon final approval of the Preliminary Design and/or Final Design. These documents and/or drawings will be retained for archival and exhibition purposes . c . Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Artwork Design and/or Work, except as those rights are limited by this Agreement. City may make and disseminate photographs , drawings , and other two-dimensional reproductions of the Artwork Design and/or Work and accompanying materials for any municipal purpose. Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 16 of33 All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: "© date , Artist's name." d. Nothing in this Agreement shall prevent the Artist from using images of the Artwork Design and/or Work for marketing and promotional purposes in connection with the Artist's business ; provided , however, that Artist shall make its best effort to credit City for commissioning the Work whenever possible substantially in the following form: "an original artwork commissioned by and in the collection of the City of Fort Worth , Texas ". 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 set forth in Article 12. The failure to do so , if such failure pre vents 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 ef fort to locate Artist when matters arise relating to Artist's rights . ARTICL E 7 WARRANTIES OF TITLE AND COPYRIGHT The Artist represents and warrants that: a. The Artwork Desi gn and /or Work shall be the original product of the Artist's sole creative efforts. b. The Artwork Design and/or Work is and will be unique and original , and do not infringe upon any copyright or the rights of any person or entity ; Agreement between th e City of Fort Worth and Etty Horowitz for pre liminary and fin a l de s ign of public artwork Pag e 17 of33 c. Artist has not sold , assigned, transferred , licensed, granted, encumbered , or utilized the Artwork Design and/or Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; d. The Artwork Design and Work ( or duplicate thereof) have not been accepted for sale elsewhere; e. The Artwork Design and Work are free and clear of any liens from any source whatsoever; f. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement ; and g. 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 INDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent , servant or employee of City. Artist shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder , and all persons performing same, and shall be solely responsible for the acts and omissions of his/her officers , agents , employees and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artist, his/her officers , agents , employees and subcontractors , and doctrine of respondent superior has no application as between City and Artist. ARTICLE9 Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 18 of33 9.1 a . INDEMNIFICATION General Indemnity ' ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM THE NEGLIGENT ACT, ERROR, OR OMMISSION OF ARTIST AND/OR ARTIST'S SUBARTIST 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 by Artist in connection with or incidental to performance under this Agreement. Agreement between the City of Fort Worth and Etty Horowitz for preliminary and fin a l desi g n of public artwork Page 19 of33 c. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. 9.2. Intellectual Property Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations , including, but not limited to , the assumption of any and all responsibilities for paying royalties that are due for the use of other third party copyrighted works by Artist. City expressly assumes no obligations , implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize , permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in advance . IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY, ITS REPRESENTATIVES, OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS 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 WORK BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artist. 9.3. Survival All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 20 of33 ARTICLE 10 EQUAL OPPORTUNITY a. Artist shall not discriminate against any employee or applicant for employment because of age , disability , race , color , religion , sex , sexual orientation, national origin , familial status , transgender, gender identity , or gender expression. Artist shall take affirmative action to ensure that employees are treated equally during employment , without regard to their age , disability , race , color, religion , sex , sexual orientation, national origin, familial status , transgender , gender identity , or gender expression. Such action shall include , but not be limited to , the following: Employment, upgrading , demotion , transfer, recruitment or pay or other forms of compensations, and selection for training , including , but not limited to , apprenticeship. Arti st agrees to post in conspicuous places , available to employees and applications for employment, notices to be provided by City setting forth the provision of this nondiscrimination clause . b. Artist shall , in all solicitation or advertisements for employment placed on or on behalf of Artist , state that all qualified applicants shall receive consideration for employment without regard to race , color, religion , sex , se x ual orientation , national origin, familial status , transgender , gender identity , or gender expression . c . Artist shall furnish all information and reports requested by the City of Fort Worth , and shall permit access to its books , records , and accounts for purposes of investigation to ascertain compliance with such rules and regulations . d. 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 the City of Fort Worth. ARTICLE 11 MISCELLANE OUS Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final de s ign of public artwork Page 21 of33 11.1. 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. 11.2. 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. 11.3. 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 the 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 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. 11.5. 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. 11.6. 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 Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 22 of33 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 solel y 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 Severability If any provision of this Agreement shall be held to be invalid , illegal or unenforceable , the validity , legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 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 ; governmental restrictions, regulations , or interferences; fires ; strikes ; lockouts , national disasters ; riots; material or labor restrictions ; transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same , regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay , so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. 11.10. Contract Construction Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 23 of33 The Parties acknowledge that each party and , if it so chooses, its counsel , have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 11.11. Fiscal Funding Out If for any reason , at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Artist of written notice of City 's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 11.12. Captions Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 11.13 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 1000 Throckmorton 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 11.13 shall survive expiration or earlier termination of this Agreement. Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 24 of33 11.14 Certified MWBE If applicable , Artist shall make its best effort to become a certified Minority/Women Business Enterprise (M /WBE) firm with a certifying agency whose certification is accepted by City under City's M/WBE ordinance . 11.15 Survival Provision The provisions contained m Articles 6 (Ownership and Intellectual Property Rights) 7 (Warranties of Title and Copyright), 8 (Artist as Independent Contractor), and 9 (Indemnification) shall survive the termination or expiration of this Agreement. 11.16 Public Information Act Artist understands and acknowledges that City is a public entity under the laws of the State of Texas and , as such , all documents held by City are subject to disclosure under Chapter 552 of the Texas Government 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 Artist's Proprietary Information to third parties under the Texas Government Code , or by any other legal process , law , rule , or judicial order by a court of competent 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 information 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 information 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 Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 25 of33 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 Signatures This Agreement may be executed in several counterparts , each of which will be deemed an original , but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 11.18. Time Extensions The Parties may agree , in writing , to extend or modify any of the time deadlines set forth in this Agreement. ARTICLE 12 NOTICES All notices, requests , demand s, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be , if delivered personally or sent by registered or certified mail , return receipt requested , postage prepaid, as follows: 1. CITY OF FORT WORTH: Fernando Costa, Assistant City Manager Copies to: City Manager's Office City of Fort Worth 1000 Throckmorton Street, Third Floor Fort Worth, Texas 76102 Sarah Fullenwider, City Attorney Office of the City Attorney City of Fort Worth 1000 Throckmorton Street, Third Floor Fort Worth , Texas 76102 Martha Peters , Vice President of Public Art Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 26 of33 2. ARTIST Arts Council of Fort Worth & Tarrant County 1300 Gently Street Fort Worth, Texas 76107 Etty Horowitz 6628 Sahalee Drive Fort Worth, Texas, 76132 [SIGNATURES APPEAR ON THE FOLLOWING PAGE] Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 27 of33 IN WITNESS HE RE OF , the Parties hereto have ex ecuted this A greement on the Effectiv e D ate . CITY OF FORT WORTH by :5~ ..... -'Q .. Fernand o Costa Assistant City Manager APPROVED AS TO FORM AND LEGALITY: T y ler E. Jach Assis t City Attorney ATTESTED B Y : Contract Authorization : No M&C R equire d Ag reem en t between the City of Fo rt W orth and Etty Horowitz fo r pre limi nary and fi na l design of public artwork ARTIST Etty ~i Indi v idual OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Page 28 of 33 ) . . l:: .. ii, •• Fort Worth Exhibit A: Summer Creek Corridor Master Plan Site Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 29 of33 Exhibit B: Site Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 30 of33 Exhibit C: Implementation Budget WORTH PUBLIC ART PROJECT BUDGET complete this form and atlach a signed receipt or estimate complete with per urit o lump sum1) for !Ill it~s de$ignated with an !1$terisk{"}. Cost inaeas• musl i!l!tR!m'&11wri1!,!. ,~mat alt/!9'lt!I,,,_ ______________ ..,.. ___ _,,,.._ _____ ...; ARTI ST'S FEE .(15%) TRAVEL (For ar1ists who live more than 50 miles from Fort Worth) Cat~::~-------------- Per Diem Expenses at$_ per day-------------- Mlleage at $_per mile _____________ _ INS URANCE Auto/Hired Vehicle Liability _____________ _ General Liability for At1ist I Subeo1'11raetor, _____________ _ Workar's Comp, I Employer's Li<lbllity ____________ _ Other, as appllccl:>le _____________ _ ADMINISTRATIVE EXPENSES Phol'liJ/Fax Delivery/Shi~ng (for correspondence, samples, models, drawings e1c)-------------- Reprographlc Ser'4ce ____________ _ Copyright Reglstra,01, _____________ _ Supplies _____________ _ PROFESSIONAL CONSULTANT FEES (If applicable , drav.ing musl be signed and sealed by a professional registered to p,-aC1ice in the, Stale of Texas) Architect'--------------Struc:tl.fal Engineer-_____________ _ Elactrical Engin""r'-------------- Conl>l!rva\or-_____________ _ Photographer (for documentation of completed workt 01har·-------------- MATERIALS (Please attach a complete lis t of materials . Itemize all anticipated aspects and components with per uni t cost estimates) Materials' Total Cost Increases : Projected lncraase in Cost Mate(ia/s 12 Months In Future -------------- l'ABAICATION COSTS (Include and itemize all porlions of subcomracted wool( and work to be comr;leted by artist.) ArtiS!'sLabor (_ho~ai$_perhocr)To1af _____________ _ Subcontracted labor' (Total) ____________ _ Facility/Equipment Rental (used exclusively lor this projed) related to fablice~on _____________ _ Cost Increases : Projected increase in Cost Fabrication 12 Months In FutLn _____________ _ SIT E PREPARATION (Do notinduda costs covered by FWPA, City of Fort Worth or others) Test.Drilling' _____________ _ Removal '-------------- Landsc~nwllrigation' _____________ _ Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 31 of33 Electrlcal Modiftca.tions• Water W0111/Mechanical Dellic,is --------------- Othel" Cosl Increases : ProjeCled lnaease In Cost Sile Preparation 12 Monttis In Futll'e --------------- TRANSPORTATION Mat erials to Fabicatio n Si1e• Finishe d Wol1< to Installation Site·--------------- Othet' ____________ _ Cost Increases?: Projected lnaease In Cost Transportation 12 Month s ln FU!lse ______________ _ BAS EJ MOUNTlNG Base ______________ _ Mounting D8"ices and Co mponents ______________ _ Foundation/Footing Other -------------- Cost lnmmses : Projected Increase in Cost Motmting/Footing 12 Months In Future ______________ _ INSTALLATION COSTS (Costs mus t incl ude allowance for after hours ins tailation , ii applicable. Pl eas e attach a complete list or equipmenl and Indivi dual estimates with lhis form) LIGHTING Subcontracted Labor· Scalfo4dlng'--------------- Equipmenl Rentai re lated to instaliallon• ______________ _ Off-d uty P,;lice!Sttrunt}"' _____________ _ Traffic Barriers' Storage Facility Reritar·--------------- City Permi ts ______________ _ Displ ay Devi ces ______________ _ Flreproo fi ng•--------------- Sjte Restoration• Othe,·-.. -------------- Cost Increases : Projected lnaease In Cost Instal lati on 12 Monlhs In Futll'e ______________ _ DeGi gners·--------------- Fhi:tll'es• B(ibs·------------- Site Preparation• ______________ _ Installation• Cost Increases ; Projecled Increase in Cost Lighting 12 Months In Futll'<I --------------- GRAND TOTAL (Including pro!ecied c,;st Increase, H any) PIGaso mako any nocossary notos hero : Prepared By : ------------------- Dale :----------------------- Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 32 of33 Exhibit D: Sales Tax Exemption TEXAS CEltrtI•IC TE OF EXEMPTI ON l cl.ai1n an exemption from payment of sales md U!i<= tax~ for the purdi.ase of t 11xlll;!l e item described below or on Ille amtched order or invoice . Descript ion of Item s (or an ~ttachoo on:fer or Invoice) To Be Purchased : I claim t his cimnplion fuf the fullowi ng rc.ison : Name of Exempt Orgsnizatioo : CITY OF FORT WORTH, TEXAS TEXAS SALES AND USE TAX :PEm.OT NUM Bll.:R 1-75-6-000.S:?M Project fur which materials and supplies re purohnscd : I und~nd t11at I will be liab le furpaym,;nt of sates ta't. whfoh may become due fudaiJure to comply with 11:u;: pl'fJvis ions of the mte, city, and/or metropolitan transi t aothority sa les Md use lax laws and cotnptmllo-rules reprding exempt purdt&Scs. Li!lb ilicy for Che m will be detcnn ined by the price paid for the tax able item$ purcliasro or tJ1e fair tnlltket rental valu.e for the period of time used _ I understand that it is :;i m.isdffll.eanor 10 give an oxmrptlon certificate kl the ~1 le; fQf" ta.uble it ems which I .know .t lhe time of th .c p 11 rchase. will be us ed in a malllle.1' other th an thal expensed in thi s ~ificalc and, µpon conviction, may be fiocd up m S500 pet> offe nse .. Jm,: Exempt S !illl'.JS Due to Bi;i Q& a Goygnmental Entity P1JTchaser: CITY OF FORT WORTH, TE . AS Street M~: 100 0 TII.ROCKMORT ON STREET Ci ty, &ate,Zi~p Code: FO~'? :O~RTH,}EX AS 1<i10l Sig,t Hen:: ~ . ~ Date: . June l I, 2009 Phone: 817-392-'85 !1 ,n . ~ !Ju«t,)I' / This cotifiC11.te does ,1 reqoire a numb« to be valid. Sale!. and use lax "exemµ4ion m unbers" or ''fax exempt·• numbers do aot exist. This c~rtificate should be furnished ro the supplier. Do not send ihc co mp letoo ct"ttificaie to lhe C<!mptroller of Public se cnunts . Agreement between the City of Fort Worth and Etty Horowitz for preliminary and final design of public artwork Page 33 of33